Recently enacted freshwater wetlands regulations, which have the potential to substantially expand the area off-limits to developers, have created significant uncertainty for the solar industry. The New York State Department of Environmental Conservations (“DEC”) has now proposed a draft general permit for Community-Scale Solar Energy Installations in State-regulated freshwater wetlands. These draft permits were developed to help streamline the application process and provide consistency and direction to an industry vital to the State’s energy transition goals.
The DEC initially issued a proposed general wetlands permit in early January, shortly following the substantial expansion of its jurisdiction over wetlands under its new regulations (6 NYCRR Part 664) which took effect on January 1, 2025. These new regulations implement statutory requirements to safeguard an estimated one million additional acres of wetland habitat, nearly doubling the acreage of wetlands under DEC’s jurisdiction. The regulations also clarify the jurisdictional status of smaller wetlands of “unusual importance” that meet one of 11 specific criteria contained in the State’s amended Freshwater Wetlands Act. In addition, the regulations provide a streamlined wetlands classification system and process for the public to request and appeal jurisdictional determinations.
This expansion of DEC’s jurisdiction over wetlands quickly drew the attention of renewable energy developers and electric utilities, who emphasized that the regulations as drafted could potentially complicate or delay existing and planned projects. In response to these concerns, the DEC released a host of draft general permits designed to streamline the application process for certain activities in these newly regulated wetlands.
The draft Community-Scale Solar Energy Installations General Permit (GP-0-25-004) would allow for the following actions (with certain limitations) by solar developers in DEC freshwater wetlands, including:
- The installation of temporary and permanent access roads;
- The construction of power interconnections and collection lines;
- Conducting vegetation clearing and ground disturbance necessary for solar project installation; and
- Conducting wetland mitigation and enhancement actions in areas under DEC jurisdiction.
DEC has several other draft wetlands general permits also going through the public comment period, including general permits pertaining to Electric Utility Right of Way Maintenance (GP-0-25-005), Natural Gas Utility Right of Way Maintenance and Repair (GP-0-25-009), Housing Development (GP-0-25-006), Lakes and Shorelines, (GP-0-25-007), Invasive Species Management (GP-0-25-008), and Stream Crossing for Timber Harvest (GP-0-23-004 and GP-0-23-005).
These general permits would be issued for five years and for locations statewide with excluded jurisdictions, if applicable, identified in each permit. Each draft permit also details applicable application requirements and procedures.
Hodgson Russ Insights
Once the public comment period ends, the DEC will review the submitted comments and determine whether these draft permits should be amended before their final iteration. The final form this permit takes will be crucial for solar developers, as they will have regulatory compliance implications for many projects sited near DEC wetlands. At a policy level, DEC faces competing pressures from both the state’s mandate to support the generation of renewable energy under the Climate Leadership & Community Protection Act (“CLCPA”) and the desire to protect vulnerable freshwater wetlands. These general permits likely indicate a desire to harmonize these mandates – promoting the further responsible development and siting of renewable energy facilities while ensuring that New York’s freshwater wetlands remain protected.
Hodgson Russ will continue to monitor DEC’s Community-Scale Solar Energy Installations General Permit as it proceeds through the public comment period and drafting process. For further information, please contact Dan Spitzer, Mike Hecker, Michael Boncardo, or any other member of the Hodgson Russ Renewable Energy Practice.
Disclaimer:
This client alert is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and other readers for educational purposes only. Nothing in this client alert should be construed as, or relied upon, as legal advice or as creating a lawyer-client relationship.
