On December 18, 2024, the New York State Office of Renewable Energy Siting and Electric Transmission (“ORES”) published draft regulations establishing new procedural and substantive requirements for the permitting and siting of major renewable energy facilities and major electric transmission facilities. These long-awaited regulations implement the 2024 Renewable Action Through Project Interconnection and Deployment Act (the “RAPID Act”), which called for the creation of new and updated rules to consolidate and streamline New York’s regulatory scheme for siting and permitting this critical energy infrastructure. Prior to the RAPID Act, applications for major electric transmission facilities were required to obtain a certificate of environmental compatibility and public need (“CECPN”) pursuant to Article VII of the Public Service Law (“PSL”).
The draft regulations are an attempt to provide clarity for developers and other stakeholders by formally codifying certain pre-application requirements which ORES had often required in practice but never formally mandated by regulation. These include notice and consultation requirements, clarification on the contents of necessary exhibits for applications, and the Uniform Standards and Conditions (“USCs”) for the issuance of a final siting permit. For major renewable energy facilities, the draft regulations retain most of the siting framework promulgated for ORES under Section 94-c of the Executive Law, but with notable additions (discussed below) to key aspects of the pre-application requirements, application exhibits, USCs for different projects, and elements of mandated compliance filings following permit issuance.
The draft regulations are open for public comment until March 17, 2025. Public hearings are scheduled for February 18, February 26, February 27, March 4, and March 11 at various locations and virtually, with two hearings scheduled on each day. This public comment period allows impacted parties – including energy developers, municipalities, landowners, and others – to provide meaningful input on the final format of the proposed regulations. Further information on the public hearing process is available in the Notice of Proposed Rulemaking.
Hodgson Russ will continue to monitor the promulgation process and any potential challenges the regulations may face. For further information, please contact John Dax (518.433.2414), Charles Malcomb (716.848.1261), or any member of Hodgson Russ Renewable Energy Practice.
General Form of Regulations
The proposed regulations, which continue to utilize the language from current provisions of 16 N.Y.C.R.R. Part 1100, are divided into three sections: 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.).
Part 1100, et seq. would apply to all applications submitted to ORES and largely adheres to and recodifies the language of existing subparts 1100-1, 1100-3 through 1100-5, 1100-7 through 1100-9, and 1100-11 through 1100-15. It sets forth basic procedure for both major renewable energy generation facilities and major electric transmission facilities. These include mandatory pre-application consultations with ORES and other state agencies, municipal officials, and a specific list of interested parties; requirements for filing, service, and publication of notice of an application; preparation and submittal of certain environmental management and construction plans; necessary post-construction compliance filings; and procedures for obtaining declaratory rulings. Part 1100 would now apply these uniform basic procedural requirements to both applications for major renewable generation facilities and to applications for major electric transmission facilities formerly permitted under PSL Article VII.
Part 1101, et seq. would apply to applications by generators and retains the substantive provisions of the existing subparts 1100-2, 1100-6, and 1100-10, including proposed requirements for the necessary studies, analyses, and required supporting materials for permit applications. It also describes expected elements for each of the twenty-five mandatory application exhibits, which collectively address potential project impact on real property, cultural resources, water resources and aquatic ecology, wetlands, and agricultural resources, among others. It establishes USCs for siting, design, construction, and operation of major electric generation facilities, as well as requirements for compliance filings to be approved by ORES prior to construction. As described below, Part 1101 includes substantive changes from the existing rules with respect to agricultural resources, wetlands, and visual impacts.
Part 1102, et seq. would apply to applications for transmission facilities, and establish, for the first time, a comprehensive set of uniform standards for the permitting and siting of major electric transmission facilities. It contains proposed requirements for twenty-nine required application exhibits, as well as the necessary studies, analyses, and supporting materials to be submitted with an application. Similar to Part 1101, these exhibits cover project impacts on topics such as real property, wetlands, and cultural resources. This section also establishes the USCs for the siting, design, construction, and operation of major electric transmission facilities and sets requirements for the environmental management and construction plan (“EM&CP”) to be approved by the ORES prior to construction. Exhibits and EM&CP components include information regarding design goals and specific measures to avoid, minimize, and mitigate impacts to natural or other resources.
Substantive Regulatory Changes
1. General Provisions (16 N.Y.C.R.R. 1100 et seq.)
The proposed regulations create certain common procedures for permit applications for both major renewable energy and transmission facilities. Although these mirror the existing process under ORES’s current Part 1100 regulations and the prior Part 900 regulations under Executive Law § 94-c, ORES proposes several additional requirements that would apply to all applicants.
Additional Pre-Application Consultation & Notice Requirements
The proposed regulations feature significant additional pre-application requirements, including mandatory consultations with Indigenous Nations and disadvantaged communities located within the study area of a major renewable energy facility or the corridor for a major transmission facility. Of note, the draft regulations differentiate between developers of generation facilities, who must consult with local municipal officials, and developers of major transmission facilities, who must only offer to conduct pre-application meetings with the chief executive officer of the municipalities where the proposed facility will be located. Developers additionally must mail individual notice to certain landowners whose property may be impacted directly by the proposed facility (this group includes owners of land on which any portion of the proposed facility will be located, or 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 in the above-two categories). These notices and consultations must occur at least 60 days before filing an application and are in addition to the broader notice requirements that must occur at the time the application is filed with ORES. Extensive documentation of an applicant’s efforts to meet these requirements must be included with the application itself.
Stringent Application Filing Timelines
Marking a notable change from previous rules, applicants must strictly adhere to the timeline of the 60-day notice of intent to file an application. If an applicant fails to meet this deadline, ORES may send a notice requesting that the applicant publish the prescribed minimum 3-day notice of intent to file an application and thereafter file and serve the application within 30 days. If the applicant does not respond within the 30-day period, ORES may treat the 60-day notice as withdrawn without prejudice.
Updated Application Review/Draft Permit/Project Approval Timeline
The proposed regulations require ORES to issue a completeness determination or deficiency within 60 days of receipt of an application by a major renewable energy facility, or within 120 days of receipt for major electric transmission facility. If a deficiency is identified, an application will remain incomplete until all requested items are received in a format that meets the filing guidelines established by the secretary, after which a second determination will be issued within a new 60 or 120 period, respectively. Applicants who fail to respond to a deficiency notice within 90 days, may be compelled by ORES to respond with 30 days of notice or have their application withdrawn without prejudice. If ORES fails to provide notice of its determination within the prescribed timelines, the application will be deemed complete, but no application will be deemed complete without proof of the mandatory consultations with local municipalities or political subdivision.
Thereafter, within 60 days of ORES issuing a notice of complete application, ORES will be required to issue either draft permit conditions or a statement of intent to deny an application. Existing general procedural requirements of Part 1100 regarding public hearings, issues conferences, rulings on party status, and standards for adjudicable issues are retained and made applicable to both types of facilities with minor additions and clarification of these processes. Following an adjudicatory hearing, the process generally follows the current timeline for resolving application issues. The presiding Administrative Law Judge must issue a recommended decision within 45 days of an adjudicatory hearing. Following this, the parties have 14 days to file comments on the recommended decision, and ORES subsequently has 30 days to issue a final decision.
The draft regulations retain generally the project approval timelines for major renewable energy facilities under the § 94-c process, with the same applied to major transmission facilities. Accordingly, if a final siting permit decision is not issued by ORES within 6 months of a completeness determination for renewable facilities located on repurposed sites, or within 1 year for all other facilities, as extended by agreement with the applicant, the siting permit shall be deemed granted and the terms and conditions included in the draft permit shall be enforceable. If no draft permit was issued for public comment, the application will be deemed denied. Notwithstanding the foregoing, no portion of a renewable energy or transmission facility to be located on land for which the applicant has not obtained the necessary rights-of-way or valid land rights shall be automatically granted, nor for any transmission facility for which ORES has not made a public need determination.
Dual Certification Requirement
The regulations also propose that applications, reports, and compliance filings filed with ORES 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 filing.
2. Major Renewable Energy Facility Siting (16 N.Y.C.R.R. 1101 et seq.)
The proposed Part 1101 regulations front-load the application process, moving many of the required surveys and assessments into the pre-application stage. Generally, the requirements in this subpart make explicit several reporting and study expectations which were imposed by ORES in practice but were not written into the regulations. The immediate effect of these newly codified pre-application requirements will be, at a minimum, additional coordination with ORES prior to commencing site surveys in support of an application. A non-exhaustive list of regulatory changes in this subpart include:
Expanded Wetland and Surface Water Delineations
The draft regulations would materially expand the obligations for wetland and surface water delineations during the pre-application process. As proposed, an applicant will be required to delineate the boundaries of, and prepare mapping for, all “freshwater wetlands” and “surface waters” within 100 feet of areas of disturbance for ORES staff review. This is an expansion of existing requirements that require mapping of wetlands subject to federal, state, or local regulations. This requirement would also incorporate wetlands subject to the recently updated Part 664 Freshwater Wetland regulations, which expand NYSDEC’s jurisdictional authority beyond mapped freshwater wetlands.
Expanded Threatened and Endangered Species Identification
The draft regulations also expand the pre-application requirements for investigating the presence of threatened and endangered species. These new requirements would include the preparation and submittal to ORES of draft wildlife site characterization reports that identify all endangered or threatened species or species of special concern documented within one mile of the proposed facility, which shall include applicant’s review of several listed available resources, and a mandatory meeting with NYDEC within four weeks of such submittals. If field surveys are recommended, the draft regulations would establish a formal process 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 facility design elements to minimize impacts, or where necessary, the preparation of a preliminary Net Conservation Benefit Plans, which shall be included in the siting permit application. Although this process attempts to codify a range of informal practices used by ORES to evaluate impacts to T&E species under former Section 94-c permit review, its inclusion in the pre-application phase may have significant consequences for project developers.
Mandatory Visual Impact Consultation
The draft regulations would make Visual Impact Consultation with ORES a mandatory pre-application requirement for all projects. Previously, these consultations were only required for applicants when preparing visual analyses for major renewable facility applications during the exhibit preparation process. Additionally, applicant will now be required to engage in an “above ground resources consultation” that would include a 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.
Mandatory Agricultural Resources Mitigation Plan
Applicants will also be required to submit an Agricultural Plan as part of the pre-application process. If ORES determines that a proposed facility would result in impacts to lands used in agricultural production requiring mitigation, it may direct the applicant to pay a mitigation fee into the Agricultural and Farmland Viability Protection Fund established by State Finance Law Section 99-pp. When determining the total fee to be paid, ORES may also give the applicant credit for any agricultural mitigation fee paid to other state or Federal agencies.
Expanded Cultural Resources Assessment
The draft regulations establish a more detailed process for assessing cultural resources in the pre-application stage, including consultation requirements with local historic preservation groups and Indigenous Nations. For archaeological resources, the draft regulations would now require either a pre-application Phase III data recovery investigation or mitigation measures for listed or eligible resources that cannot be avoided. For above-ground historic resources, the draft regulations require a zone of visual impact for spatial analysis of two miles for solar facilities and five miles for wind facilities. The draft regulations also require the submission of results of the zone of visual impact spatial analysis; preparation and submission of a historic resources effects assessment, if warranted, as well as a preliminary visual impact assessment; and the drafting of an effect or impact determination to be included in the siting permit application.
3. Major Electric Transmission Facility Siting (16 N.Y.C.R.R. 1102 et seq.)
The proposed Part 1102 regulations codify several common practices which were enforced, but were not explicitly required, in current Article VII proceedings. To this end, the regulations propose new requirements all for the preparation of twenty-nine separate exhibits for transmission applications. While most of these exhibits are also required for generating facilities, major electric transmission facility permit applications will also require four additional exhibits covering 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.
In a significant departure from the negotiated permit conditions prepared in an Article VII siting proceedings, the proposed regulations would establish a definitive set of uniform standards and conditions for the siting, design, construction, and operation of major electric transmission facilities. Notably, the regulations would require that siting permits expire if construction does not commence within two years after permit issuance, provide a procedure for siting transmission lines in a manner compatible with existing co-located infrastructure, and explicitly regulate the construction of submarine facilities.
Another significant proposal included in the draft regulations is to allow any municipality, person, or potential party to propose an alternative route for the project within 65 days of an applicant’s publication of the 6-month notice of intent to file. The applicant may then respond within 15 days, after which ORES will issue a determination as to whether the applicant must present and analyze the alternative route in its application. Although the failure by an interested party to propose an alternative route during this period will bar that party from proposing an alternative route later in the proceedings, this provision raises significant concerns regarding cost and delays associated with studies that may be required to evaluate such alternative routes.
Hodgson Russ Insights
The draft regulations set forth a comprehensive and far-reaching set of regulatory criteria for the siting and permitting of major renewable energy facilities and major renewable transmission facilities. As proposed, the draft regulations go a long way toward creating transparency in the regulatory processes for both developers and interested parties and preventing unnecessary administrative delays. This includes the creation of mandatory timelines for ORES and other involved agencies to act upon requisite submittals and final applications, but also significantly increases the number and scope of such submittals. The draft regulations also expand the scope and complexity of pre-application notifications, consultations, and investigative studies. While the proposed expansion of mandatory pre-application requirements, including consultations and the depth of environmental studies, has the potential to streamline the review of final applications and reduce permit risk for those projects which have run the pre-application gauntlet, the draft regulations appear to ignore the potentially significant time additions and costs imposed on developers to evaluate potential projects. One new risk factor the proposed regulations add concerns the requirement to demonstrate land rights. As the pre-application process moves forward, changes in the linear route of a proposed transmission line will inevitably change and with each change to accommodate resource avoidance concerns raised by stakeholders the regulations appear to require that applicants secure the required additional rights and clear all title issues. The result is to skew the process in favor of applicants who possess eminent domain authority. Additionally, the increased appeal to cooperation with local municipalities and other interest groups, without adequate safeguards against frivolous or “nimby” style opposition, threatens to subvert the very purpose of creating a unified one-stop permitting process in the first instance. Hodgson Russ will continue to monitor the public comment period and be prepared to assist our clients who wish to participate further in these proceedings.
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