On Wednesday, December 18, 2024, the New York State Office of Renewable Energy Siting and Electric Transmission ("ORES") issued its much-anticipated draft regulations concerning the environmental review, permitting, and siting of major renewable energy facilities and major electric transmission facilities in New York State.
The draft regulations, which implement the 2024 Renewable Action Through Project Interconnection and Deployment Act (the "RAPID Act"), would bring the permitting of large renewable generating facilities and large transmission facilities within a single set of procedures overseen by ORES. The permitting processes were formerly separate, with ORES exercising jurisdiction over the permitting of large renewable generators and the New York State Public Service Commission (the "PSC") exercising jurisdiction over the permitting of large transmission facilities.
The draft regulations would provide clarity as to the full set of requirements that transmission facility developers need to meet to receive their permits, clarity that was lacking under the Article VII process. Further, the draft regulations provide an intriguing backstop in the event of a permit-processing delay, granting automatic permit approvals if ORES fails to process applications in a timely manner. In these ways, the proposed regulations streamline the transmission facility permitting process and overall timeline as compared to Article VII; however, the proposed pre-application requirements may lengthen the pre-application period for transmission developers, as applicants would need to account for more prescriptive timelines for pre-application studies, and additional survey and consultation requirements.
The proposed regulations in detail. The proposed regulations comprise three parts: General Provisions (16 N.Y.C.R.R. 1100 et seq.), Major Renewable Energy Facility Siting (16 N.Y.C.R.R. 1101 et seq.), and Major Electric Transmission Facility Siting (16 N.Y.C.R.R. 1102 et seq.). Below, we describe the major features of each part and the important changes from existing permitting processes.
I. The General Provisions
The proposed regulations would create a common set of procedures for applicants seeking permits for major renewable energy or major electric transmission facilities. While the pre-application procedures for major renewable energy facilities mirror the existing process under ORES's Part 1100 regulations and the prior Part 900 regulations under Executive Law § 94-c, ORES proposes additional requirements that would apply to both major renewable energy facilities and major transmission facilities. A few notable additions include:
Additional pre-application consultations. ORES proposes additional pre-application consultation requirements with Indigenous Nations within the study area of a major renewable energy facility or the corridor for a major transmission facility. Additionally, if the study area for a major renewable energy facility or corridor for a major transmission facility is located in a disadvantaged community, at least one pre-application meeting would be required to be held in the disadvantaged community.
Further, developers of major transmission facilities – like those of generation projects – will need to offer to conduct a pre-application meeting with chief executive officer of the municipality(ies) where the proposed facility will be located at least 60 days before filing an application and provide notice by mail to all landowners whose property may be impacted by the proposed facility. Impacted landowners would include:
- landowners of land on which any portion of the proposed facility will be located;
- landowners of land on which any portion of the proposed facility will be located as identified in any alternative routes that will be presented in the application; and
- landowners of land that directly abuts any land identified pursuant to (1) and (2).
More stringent adherence to timelines for filing an application. If an applicant fails to file an application 60 days after publication of the required 60-day notice of intent to file an application (which would still be required at least 60 days before the date an applicant files an application), ORES may send a notice requesting that the applicant publish the 3-day notice of intent to file an application and file and serve the application within 30 days. If the applicant does not respond to ORES's notice within 30 days, ORES may treat the 60-day notice as withdrawn without prejudice and would publish a notice of withdrawal of the 60-day notice on ORES's website and provide copies to the applicant, the host municipality, and if requested, to "any person who has previously expressed in writing an interest in receiving such notification via the method of service requested by such person."
Certifications. As proposed, every application, report, and compliance filing filed with ORES would now require two certifications—one from a responsible official, and one from a professional engineer licensed in NY—certifying to the truth, accuracy and completeness of the of the filing.
Timeline for review of applications. Consistent with existing processes, the proposed regulations would require ORES to make a completeness determination within 60 days of receipt of an application by a major renewable energy facility or 120 days of receipt of an application by a major electric transmission facility. The regulations proscribe amending an application after ORES issues a notice of complete application unless the applicant seeks and ORES grants permission to amend.
The proposed regulations would require ORES to issue draft permit conditions (or, alternatively, a statement of intent to deny an application) within 60 days of ORES issuing a notice of complete application. ORES also proposes to retain the existing general procedural requirements concerning public comment hearings, issues conferences, rulings on party status, and adjudicatory hearings, with some additional requirements and clarification of processes. Following any adjudicatory hearing, the process would generally follow the now-effective timeline for resolution of issues on the application. The presiding Administrative Law Judge ("ALJ") would be required to issue a recommended decision within 45 days of an adjudicatory hearing; parties would have 14 days to file comments on the recommended decision; and ORES would have another 30 days to issue a final decision on the issues.
Final determinations on applications. The draft regulations would retain the timeline for major renewable energy facilities under § 94-c. That is, ORES would issue a permit (or, in the alternative, a denial) within 6 months of a completeness determination for major renewable energy facilities located on repurposed sites and within 1 year of a completeness determination for all other major renewable energy facilities. Major transmission facilities would also be subject to a 1-year clock on an application decision from the date of a complete application. These deadlines may be extended upon mutual agreement of the applicant and ORES. If ORES otherwise fails to meet this deadline, the permit will be deemed automatically granted provided that the applicant has obtained rights-of-way or valid land rights for all portions of a major renewable energy facility or major transmission facility and ORES has made a public need determination with respect to such major transmission facility.
II. Major Renewable Energy Facilities
A new, proposed Part 1101 would establish the pre-application study requirements and application requirements for major renewable energy facilities, as well as uniform standards and conditions for the siting, design, construction, and operation of major renewable facilities. The proposed regulations include substantive changes from ORES's existing requirements with respect to pre-application study processes and requirements and application requirements. The most notable changes are with respect to agricultural resources, wetlands, and visual impacts.
More pre-application work will be required to develop a permit application. While some of the substantive changes to the pre-application requirements would incorporate procedures that ORES and other state agencies have generally required in practice—such as take estimates for threatened and endangered species and required consultations and procedures with the State Historic Preservation Office—there is no doubt that the proposed pre-application study process would require even more advance planning and coordination with ORES before commencing site surveys in support of an application.
Protected wetlands. For instance, the proposed regulations incorporate procedures for determining the status of delineated "protected" wetlands. "Protected wetlands" are proposed to be defined as "any wetland regulated under articles 24 and 25 of the Environmental Conservation Law." The NYSDEC recently adopted updated Part 664 Freshwater Wetland regulations to implement amendments to Article 24, which expand NYSDEC's jurisdictional authority beyond mapped freshwater wetlands effective January 1, 2025. The proposed regulations would also expand the requirements for wetland delineations to include all freshwater wetlands present on the facility site within 100 feet of areas of construction disturbance, as opposed to only those wetlands that are federally, state and locally regulated, as currently required by ORES regulations.
Visual impact analyses. While applicants have been required to consult with ORES on visual impact analyses during the pre-application process in order to prepare the visual analyses currently required for major renewable facility applications, these consultation requirements and information required to be provided to ORES would now be hard-wired pre-application requirements. This would include, for example, an "above ground resources consultation" with complete spatial analysis of areas within 2 miles of proposed solar facilities and 5 miles of proposed wind facilities to determine potential visible impacts of the project and required mitigation measures.
Agricultural resources. For agricultural resources, applicants would be required to include in their applications an Agricultural Plan to avoid, minimize, or mitigate significant adverse impacts to land used in agricultural production to the maximum extent practicable, with "additional consideration for land within a NYS Certified Agricultural District or land that contains NYS Agricultural Land Classification Mineral Soil Groups 1 through 4." To the extent ORES determines that a facility would result in impacts to lands used in agricultural production requiring mitigation, ORES may authorize the applicant to pay a mitigation fee into the Agricultural and Farmland Viability Protection Fund established by State Finance Law section 99-pp, and may also give the applicant credit for any agricultural mitigation fee paid to another state or Federal agency or authority. Implementation of the approved Agricultural Plan is a proposed uniform standard and condition for all major renewable energy facilities.
III. Major Electric Transmission Facilities
Formal creation of many pre-application requirements. Codifying many of the practices now common in Article VII proceedings (but which are not explicitly required in the existing Article VII regulations), the proposed Part 1102 would set forth requirements for each of the twenty-nine separate exhibits covering topics such as real property, route selection and alternatives, visual impacts, cultural resources, water resources and aquatic ecology, wetlands, public need, and electric system effects and interconnection. This is four more exhibits than are required for major renewable energy facility applications. (The draft regulations require a set of twenty-four exhibits common to both major renewable energy facility and major electric transmission facility permit applications; for major renewable energy facilities, applicants must submit an exhibit describing the proposed project's consistency with energy planning objectives which is not required for applicants seeking an electric transmission permit.) The additional exhibits required for major electric transmission facility permit applications concern:
- the proposed transmission cable route and alternative routes;
- a preliminary description of construction practices;
- in-water facilities for projects proposing submarine routes through rivers, lakes or ocean-bed;
- project cost; and
- public need for the proposed facility.
Uniform standards and conditions. The proposed regulations would also establish uniform standards and conditions for the siting, design, construction, and operation of major electric transmission facilities. Notably, among other things, the uniform standards and conditions:
- establish that a permit to site a major electric transmission facility will expire if construction does not commence within 2 years of issuance of the permit;
- provide a procedure for siting transmission lines in a manner compatible with existing co-located infrastructure; and
- explicitly regulate the construction of submarine facilities.
Opportunities for non-applicant parties to propose alternative routes. The draft regulations provide that, within 65 days of an applicant's filing of a 6-month notice of intent to file an application, any municipality, person, or potential party may propose an alternative route(s). Failure to propose such a route during this timeframe bars a party from proposing an alternative route later on in the proceedings. The applicant may then respond within 15 days, following which response ORES will then issue a determination specifying whether the applicant must present and analyze the alternative route(s) in the application.
This requirement is potentially burdensome and could lead to significant permitting delays; depending on the alternative route proposed, it could require applicants to essentially begin the pre-application process again, commencing analyses, community meetings, and meetings with municipalities to discuss the alternative route before filing the application.
Next steps in the development of the draft regulations. The Notice of Proposed Rulemaking kicks off a public comment period, with comments accepted up to five days after the last scheduled public hearing. Public hearings are scheduled for February 18, February 26, February 27, March 4, and March 11 at various locations across the state and virtually; if this schedule holds, comments will be due March 17. Two public hearings are scheduled on each day. Information on the location and timing of each public hearing, as well as registration information, are set forth in the Notice of Proposed Rulemaking.
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