Pursuant to the Renewable Action Through Project Interconnection and Deployment (RAPID) Act, passed into law in April 2024, the New York State Office of Renewable Energy Siting and Transmission (ORES) is now proposing certain changes to the regulatory process for permitting major renewable energy generation projects in New York under Public Service Law (PSL) Article VIII. The existing regulations for the permitting of major renewable energy generation projects, originally promulgated under Section 94-c of the Executive Law, were transferred to 16 NYCRR Part 1100 following passage of the RAPID Act.
On December 18, 2024, ORES issued a Notice of Proposed Rulemaking in the State Register seeking to modify Part 1100. In addition to a new regulatory regime for transmission siting pursuant to the RAPID Act, these regulations also propose changes to the existing regime for renewable electric generation siting.
Public statement hearings on the proposed draft regulations are scheduled across New York State between February 18 and March 11, 2025. Written public comments on the proposed draft regulations may be submitted until March 18, 2025. Thereafter, ORES will take further action to finalize its siting regulations.
Notable Changes in Proposed 16 NYCRR Part 1101
While the regulations as proposed retain the overarching siting framework that had existed under the regulations promulgated under Section 94-c of the Executive Law, ORES has proposed a number of changes to its pre-application process, requirements for application exhibits, the uniform standards and conditions (USCs), and compliance filings following issuance of a permit. While not exhaustive, below is an overview highlighting some of the larger changes.
- Pre-Application
ORES proposes changes to three aspects of the pre-application requirements. First, the proposed revisions appear to expand the obligations for wetland and surface water delineations, requiring the applicant to delineate the boundaries and prepare mapping of all “freshwater wetlands” and “surface waters” within 100 feet of areas of disturbance for ORES staff review—not just those subject to federal, state, or local regulations, as currently required.
Second, the draft regulations expand the pre-application requirements for threatened and endangered species by requiring that the wildlife site characterization identify all endangered or threatened species or species of special concern documented within one mile of the proposed facility rather than just those documented “at” the proposed facility. The draft regulations also more formally set forth a process and timing for applicants to conduct species-specific field surveys; for ORES to issue preliminary occupied habitat maps; for applicants to prepare preliminary take estimates; and for applicants and ORES to discuss preliminary Net Conservation Benefit Plans. This was a process that had been informally adopted in practice by ORES under former Section 94-c but was not formally captured in the existing set of regulations.
Finally, the draft regulations also set forth a much more detailed process for assessing cultural resources in the pre-application stage than is set forth in the existing regulations. Generally, the draft regulations expand the consultation requirements to include local historic preservation groups and indigenous nations. For archaeological resources, the draft regulations also require either a Phase III data recovery investigation or mitigation measures for listed or eligible resources that cannot be avoided (no Phase III investigation is mentioned in the existing set of regulations). For above-ground historic resources, the draft regulations require a zone of visual impact for spatial analysis—within two miles for solar facilities and five miles for wind facilities. The draft regulations also set forth specific requirements for submitting the results of the zone of visual impact spatial analysis; further consultation; preparing and submitting a historic resources effects assessment, if warranted, as well as a preliminary visual impact assessment; and including an effect or impact determination in the siting permit application—none of which are detailed in the existing regulations.
- Application Exhibits
The draft regulations also make several changes to the application exhibit requirements, now enumerated under Subpart 1101-2; the general procedures applicable to both generation and transmission remain in Subpart 1100.
First, the draft regulations have combined the requirements for Exhibit 1 (General Requirements) and some of the requirements for Exhibit 2 (Overview and Public Involvement) under the existing regulations into one combined Exhibit 1 entitled “General Information Regarding Application, Overview, and Executive Summary.” For Exhibit 2, the draft regulations focus on public involvement only and specifically require “proof” of pre-application consultation with the municipalities.
Among the other exhibits, Exhibits 7 (Noise and Vibration), 8 (Visual Impacts), 9 (Cultural Resources), and 15 (Agricultural Impacts) have the most proposed substantive changes. ORES has proposed revisions to Exhibit 14 (Wetlands) to indicate that when compensatory mitigation is required, the applicant may include the payment of wetland mitigation credits into an existing wetland mitigation bank, an in-lieu fee program, or any other wetland mitigation fee program (including those paid to another state or federal agency) as part of its wetland mitigation plan. ORES also proposed minor changes to its Table 14-1 regarding wetland mitigation requirements. Exhibit 19, as proposed to be revised, requires the applicant to address the now formally established Disadvantaged Communities in addition to potential environmental justice areas with respect to a disproportionate burden analysis. ORES also proposed revisions that significantly streamlines Exhibit 23, tying it to the relevant USCs regarding decommissioning and site restoration.
- General Process and Uniform Standard Conditions
While siting permittees will remain subject to Public Service Commission (PSC) authority under PSL §§ 68, 69, and 70 generally, the proposed draft regulations state that any verified statement showing that an applicant has obtained municipal consents shall be submitted to ORES and shall not be subject to review by the PSC under PSL § 68.
As revised, project phasing is now formalized within the draft regulations, in which an applicant may request such phasing by submitting a comprehensive Project Phasing Plan that must describe all phases before the first phase can be approved.
Other proposed changes to the USCs for facility authorization and notifications include reducing the automatic expiration period for a siting permit from seven years to three years from the date of issuance and making clear that any requests for extensions must be submitted 14 calendar days before the deadline rather than 14 business days. The requirements for pre-construction notices are proposed to be reduced, eliminating a newspaper publication of such notice.
Within the USCs for facility construction and maintenance, ORES has proposed revisions to the USCs regarding threatened and endangered species to: recognize that permittees may receive credit for mitigation fees paid to other agencies, reduce the time period for certain notification or reporting requirements from 48 hours to 24 hours, clarify when and how snag or cavity trees may be removed if northern long-eared bats may be affected, and add in certain monitoring requirements for threatened and endangered reptiles or amphibians. The proposed USCs regarding wetlands and waterbodies revise the requirements for providing notice when construction activities result in a discharge to a wetland, waterbody, or stream that violates New York water quality standards and revise the conditions regarding temporary construction matting, the removal and storage of topsoil, the backfilling of trenches in wetland areas, and the restoration of temporarily disturbed wetlands.
ORES has also proposed revisions to the USCs regarding agricultural resources, expanding the conditions to apply to any land “used in agricultural production” that would be impacted by the facility rather than “active” agricultural lands (currently defined as land in active production for three of the last five years within NYS Agricultural Land Classified Mineral Groups 1-4). The draft regulations also revise the conditions regarding noise levels for wind facilities and procedures for noise-related complaint resolution. Finally, the detail regarding decommissioning and restoration that was removed from Exhibit 23 requirements has been added to the USCs for decommissioning and restoration.
- Pre- and Post-Construction Compliance Filings
ORES also proposes some changes to post-permit issuance compliance obligations, including those required before and after the commencement of construction. For example, under the draft regulations, the pre-construction Cultural Resources Avoidance, Minimization, and Mitigation Plan (CRAMMP) must include, at a minimum, any approved Site Avoidance Plan and incorporate any other measures identified by ORES in consultation with the Office of Parks, Recreation, and Historic Preservation/State Historic Preservation Office. A Visual Impact Minimization and Mitigation Plan was added as a pre-construction compliance filing, which must include screen planting management for both construction and long-term operations. And, as part of post-construction compliance, the requirements for sound testing and modeling have been revised, with permittees required to follow a “Sound Testing Compliance Protocol” approved by ORES.
Barclay Damon’s Regulatory Practice Area attorneys will continue to review the draft regulations and monitor the proceedings as comments are received and addressed by ORES.
If you have any questions regarding the content of this alert, please contact Ekin Senlet, Regulatory Practice Area co-chair, at esenlet@barclaydamon.com; Brenda Colella, Regulatory Practice Group leader and Regulatory Practice Area co-chair, at bcolella@barclaydamon.com; David Solimeno, associate, at dsolimeno@barclaydamon.com; or another member of the firm’s Regulatory Practice Area.