New York proposes rules to speed renewable projects, but local control, other issues could be contentious 

Dive Insight:

Renewables advocates are celebrating the proposed regulations and attorneys say they will almost certainly speed up the existing process. But there are likely to be debates over specific requirements, and in some ways the rules remain similar to the current regime, which is set out under Article 10 of the state’s Public Service Law – and has not been updated in almost a decade.

“The old adage that you can’t please all of the people all of the time will no doubt remain accurate,” said Shaw. “Some stakeholders will surely voice concerns around local agencies’ ability to manage project development in their communities, and others may voice disappointment that certain characteristics of the Article 10 application requirements remain intact.”  

The regulations were issued by New York’s new Office of Renewable Energy Siting (ORES), which was established earlier this year by the Accelerated Renewable Energy Growth and Community Benefit Act and will be housed within the Department of State. The regulations will apply to facilities 25 MW or larger.

By establishing rules and operating conditions in advance, facilities can be designed to meet these standards from the beginning, according to Anne Reynolds, executive director of the Alliance for Clean Energy New York.

“The biggest change will be the more time-efficient process,” Reynolds said. “It appears that the actual standard operating conditions are roughly the same as what was coming out of the previous Article 10 process, only now both the developers and the towns will know them in advance.” Those pre-defined conditions include physical setbacks for wind and solar, sound standards and decommissioning rules, she said.

But Reynolds also said that she expects the renewable energy industry “will be attempting in our formal comments to modify some of the requirements, for example curtailment of wind turbines for bat protection.”

While the proposed regulations are not a panacea, “the mere fact that the standard is known right from the beginning will make for a smoother process,” Reynolds said.

The new rules “should be helpful in the long run,” said Ed McTiernan, a partner with Arnold & Porter and former general counsel of the New York State Department of Environmental Conservation.

“It’s pretty clear the thrust is to try and get the applications complete for these projects before they are submitted, so there is none of this back and forth with incomplete applications, which historically has been a very cumbersome part of the process,” said McTiernan. “The rules strike me as extremely prescriptive.”

“There are some presumptive mitigation requirements which may be helpful – but some people might look at them as burdensome and look for relief or variances,” he said.

McTiernan said one possible area of contention will be requirements that renewable projects obtain a water quality certification from the state if a federal Clean Water Act permit is required – such as in the case of projects requiring a stream crossing or water discharge.

States have up to a year to issue that certification and have often been accused of “dragging their feet, slow walking and finding applications incomplete,” McTiernan said. “Presumably New York wants to expedite these projects, and now there’s a question if there’s a water quality certification of how they do that.”

The new regulations address a wide range of policy and technical issues, said Shaw, and include “major improvements” to previous perceived inefficiencies. But in a policy brief published Thursday, he also noted that industry participants may find that the structure of the new permit application is similar to the Article 10 process.

Among issues to keep an eye on, Shaw noted: the pre-application process requires projects file draft wetlands delineation reports; developers must submit transcripts of meetings with local governments; applications for solar and wind projects must include setbacks in design drawings; and complete applications require “semi-mature” renderings.

On the other hand, Shaw said the uniform noise standards for solar projects “are significantly less restrictive” and the new siting law, which required the new regulations, “effectively gives ORES jurisdiction over transmission projects” that do not fall under Article VII of the state’s Public Service Law.

ORES will accept comments on the proposed regulations through Dec. 7, and has scheduled five public hearings and a pair of virtual meetings to hear concerns about the new rules.