Early last week, the New York State Senate and Assembly released
their "one-house" budget bills, which include their own
version of the Renewable Action Through Project Interconnection and
Deployment, or RAPID, Act proposed by Governor Kathy Hochul in her
2024-2025 budget bill. Resolution of the divergent elements between
and among the executive and houses may have significant
implications for development and permitting of both major renewable
generation and transmission facilities across New York State.
The Governor's proposed Act would move the Office of Renewable
Energy Siting ("the Office" or "ORES") to the
Department of Public Service ("DPS") and give the Office
permitting authority over major electric transmission facilities
currently permitted under Article VII of the Public Service Law.
The Senate and Assembly versions of the Act take different
approaches regarding the extent to which the Office's current
permitting regime for major renewable energy facilities would apply
to major electric transmission facilities and the extent to which
the current permitting regime for major renewables under Executive
Law § 94-c would be preserved.
Prescriptive farmland protections are the notable difference
between the two houses' versions of the Act. While the Assembly
version closely mirrors the current permitting requirements under
Section 94-c and ORES's regulations, the Senate version adds
specific farmland protections that ORES would be required to
incorporate into its regulations, applicable to both generation and
transmission facilities. These additional provisions include
pre-application consultation and cumulative impact analyses
required by applicants, and a new standard for issuing permits only
where the applicant demonstrates and ORES "ensure[s] that a
critical mass of farmland within the designated region is not
threatened." Both versions, and the Governor's proposal,
would create or otherwise continue the Farmland Protection Working
Group and direct the Working Group to recommend strategies to
encourage and facilitate input from municipalities in the siting
process no later than one year after the effective date of the
Act.
Below, we provide a summary of the notable similarities and
differences between the Governor's, Senate's, and
Assembly's versions of the RAPID Act concerning ORES and its
permitting requirements.
| Governor's Proposed
Act Art. VII Legislation, Part O |
Senate's Proposed
Act S.8308 B, Part O |
Assembly's Proposed
Act A.8808B, Part O |
| Definition of "Major Renewable Energy Facility" | ||
|
Would include co-located energy storage systems, but not
standalone storage. |
Would include standalone "qualified energy storage
systems" with a nameplate capacity of more than 5,000
kilowatts. |
Would include co-located energy storage systems, but not standalone storage. |
| Definition of "Major Electric Transmission Facility" | ||
| Would adopt part of the definition of "major
utility transmission facility" under the current Article VII:
"an electric transmission line of a design capacity of one
hundred twenty-five kilovolts or more extending a distance of one
mile or more, or of one hundred kilovolts or more and less than one
hundred twenty-five kilovolts, extending a distance of ten miles or
more, including associated equipment, but shall not include any
such transmission line located wholly underground in a city with a
population in excess of one hundred twenty-five thousand or a
primary transmission line approved by the federal energy regulatory
commission in connection with a hydro-electric
facility." |
||
| Uniform Standards and Conditions (USCs) | ||
| ORES would be authorized to establish and amend
USCs for the siting, design, and construction of major renewable
energy facilities and major electric transmission facilities, in
consultation with other state agencies, departments and
authorities. USCs must be designed to avoid or minimize, to the
maximum extent practicable, any potential significant adverse
environmental impacts related to the siting, design, construction
and operation of a major renewable energy facility or major
electric transmission facility. |
||
| ORES would be required to establish USCs applicable
to major electric transmission facilities within 18 months of the
effective date of the RAPID Act. |
ORES would be required to establish a USCs applicable to major
electric transmission facilities within 12 months of the effective
date of the RAPID Act. |
|
| Before adopting any new USCs, ORES would be
required to hold four public hearings in different regions of the
state to solicit comments. |
||
| USCs must also avoid, minimize, and mitigate agricultural
impacts to active agricultural lands, related to the siting,
design, construction and operation to the maximum extent
practicable. |
USCs must also minimize adverse impacts on active farming operations. | |
| Local Agency Account Fees | ||
Would retain current local agency account fees,
which ORES may periodically update for inflation:
|
||
| ORES may require a local agency account fee of $50,000 for
qualified energy storage systems. |
||
| Application Completeness | ||
| Application would not be deemed complete without
proof of consultation with the municipality where the project is
proposed to be located related to procedural and substantive
requirements of local law. |
Application would not be deemed complete without proof of
consultation with the municipality where the project is proposed
the be located prior to submission of an application to ORES;
provided, however, that, as contemplated under ORES's current
regulations, in the event the applicant is unable to secure a
meeting with the municipality, the application must contain a
detailed explanation of the applicant's best efforts and
reasonable attempts to secure such meeting, including all written
communications between the applicant and the municipality. |
|
| Farmland Protections | ||
| ORES would be required to establish and/or amend rules and
regulations pertaining to siting on farmland to specifically
include the following requirements: (1) Adopt the definition of "prime farmland" in Part 622.04 of the USDA Handbook and the definitions of "unique farmland," "specific characteristics of unique farmland," "additional farmland of statewide importance," and "additional farmland of statewide importance" as defined in 7 CFR § 657.5; (2) Pre-application procedures requiring applicants to submit a report delineating impacts to prime agricultural land and prime soils, unique farmland and farmland of statewide and local importance, including Mineral Soils Group (MSG) 1-4; submit a cumulative impact study as to how the use of farmland for solar siting will impact the regional food economy and regional overall farmland protection plan; and "ensure that a critical mass of farmland within the designated region is not threatened." (3) Preference for sites for solar development that are on brownfields, landfills, parking lots, rooftops, gravel pits and other areas where disturbance to local ecosystems is minimized. Such sites would be granted expedited approval. (4) Application procedures for permits for major renewable energy facilities and major electric transmission facilities that include, among other things: a farmland conservation fee of 1% of the price per acre of prime soil or farmland which solar is developed on. |
||
| ORES would be required to consider, in consultation with the
Department of Agriculture and Markets, the project's impacts on
farmland preservation, local food supply chains, and statewide food
security, and ensure that a critical mass of farmland within the
designated region is not threatened. ORES would be required to
reevaluate the efficacy of this requirement two years after the
effective date and make recommendations to the Legislature. |
||
| Standards for Issuing Siting Permits | ||
| As currently required for major renewable energy
facilities, ORES could only issue a final siting permit if it
determines that the proposed project, together with the USCs and
site-specific conditions, would comply with applicable laws and
regulations. ORES may elect not to apply any applicable local law
or ordinance if it finds that, as applied to the proposed facility,
it is unreasonably burdensome in view of the CLCPA targets, the
environmental benefits, and in the case of a transmission facility,
the public need for the proposed project. ORES may exempt from the Article VIII requirements applications for major electric transmission facilities that would be constructed "substantially within existing rights-of-way." |
||
| ORES would be required to identify the basis of the
public need for a major electric transmission facility and grant
permits to such projects that demonstrate a qualified public need,
so long as the adverse environmental impacts are addressed by USCs
and any site-specific permit conditions applied to the
facility. |
ORES could only grant major electric transmission facility
siting permits to projects that: (1) demonstrate a qualified need,
(2) are in the public and ratepayer interest, (3) identify and
address adverse environmental impacts through the USCs and any
site-specific conditions or other permissible mitigation, and (4)
minimize, to the maximum extent practicable, significant adverse
impacts on active farming. |
|
| Automatic Permit Issuance | ||
| No automatic permit issuance after 1 year for major
electric transmission facilities where the applicant lacks a
right-of-way agreement for any portion of the project. |
||
| No automatic permit issuance after 1 year for major renewable
energy facilities where the applicant lacks a valid and enforceable
title or easement to property on which any portion of the proposed
facility is to be located. |
||
| ORES Fees | ||
| ORES or DPS may assess a fee to recover the costs
incurred by ORES or NYSERDA. |
||
| Would not allow ORES or DPS to establish a fee for recovering costs until regulations regarding the operation of the endangered and threatened species mitigation bank fund, established under State Finance Law § 99-h, are finalized and the fund is operational. | ||
The content of this article is intended to provide a general guide
to the subject matter. Specialist advice should be sought about
your specific circumstances.
