Renewable energy generation and transmission projects often face the challenge of mitigating the impacts on endangered and threatened species when project development results in the destruction of critical habitat. The New York legislature sought to address this challenge by authorizing the New York State Department of Environmental Conservation (DEC) to develop regulations to implement the Endangered and Threatened Species Mitigation Bank Fund (Fund), established pursuant to Section 99-hh of the State Finance Law.
On July 23, 2025, DEC adopted the regulations. The Fund creates a mechanism to offset adverse impacts to endangered and threatened species populations that may result from the construction of renewable energy and energy transmission projects and the monies of the Fund "shall be available for projects undertaken to facilitate a net conservation benefit to endangered and threatened species potentially impacted by a major renewable energy facility" (SFL § 99-hh(2)).
The Fund is intended to be an alternative compliance mechanism for large-scale renewable energy generation and transmission projects to meet mitigation requirements for unavoidable adverse impacts to endangered and threatened animal species. This mechanism is available only when the DEC project applicant granted a siting permit has been ordered to mitigate harm caused directly to a threatened or endangered species or its habitat. The amendments outline how the department may use the funds, the payments to the Fund, and add definitions for the following terms: habitat, major electric transmission facility, major renewable energy facility, net conservation benefit plan, and office.
New York Endangered Species Mitigation Fund: Payment Methodology and Cost Calculations
DEC, in consultation with the Office of Renewable Energy Siting (ORES), will establish the methodology for determining payments to the Fund based on an ORES-approved endangered and threatened species mitigation plan or net conservation benefit plan. The quantification of the species "take" may be based on any or all of the following: loss of occupied habitat, loss of productivity, loss of individual animals, and the anticipated duration of such taking (6 NYCRR § 182.18(c)(1)(i)). Further, cost calculations will include expenses such as acquiring necessary real property, labor, equipment and supplies, administrative overhead, and reasonable increases anticipated over time for any of these costs (6 NYCRR § 182.18(c)(2)).
While the express terms of the amended regulations are sparse, the regulatory impact statement (RIS) provides examples of estimates for the costs of various mitigation methods and provides some guidance on how much mitigation may cost for a project. Specifically, details on the cost determinations for mitigating impacts to grassland birds, bald eagles, and Northern long-eared bats (NLEB) can be found in the RIS. While these are currently approved for offsite mitigation, additional cost estimates will be added as additional options are developed. These cost determinations are posted on the DEC's website and will be updated periodically, currently projected for April 2026 for grassland bird habitat and NLEB taken, and April 2027 for bald eagles taken.
Renewable Energy Project Compliance: NYSDEC Fund Implementation and Reporting Requirements
In terms of disbursing funds that DEC collects, the agency must annually report to the Department of Public Service, the Governor, and the Legislature on the status of the Fund and all monies added to and expended from it (ECL § 11-0535-c(6)). The regulations and the statute remain vague on the actual expenditure of the funds collected and rely mostly on future DEC and ORES determinations.
These regulations, while somewhat open-ended, should nevertheless provide helpful guidance to developers of large-scale renewable energy transmission and generation projects, which almost always have to navigate the challenges posed by the loss of forested areas or grasslands that serve as habitat of threatened and endangered species. Hopefully, they will lead to greater uniformity and predictability in the review and approval of threatened and endangered species mitigation plans.
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