Proposed section 900-6.1 contains permit conditions that include the expiration date of an issued permit, the need for an applicant to obtain other approvals, and other conditions that specify the scope of the authorization contained in a permit issued by the Office, including the need for an applicant to receive a Notice to Proceed with Construction from the ORES.

Proposed section 900-6.2 specifies the notifications that would be required prior to construction, following construction and following restoration of the site.

Proposed section 900-6.3 provides general construction requirements related to compliance with local laws and federal requirements, as well as state and local coordination with respect to traffic issues.

Proposed section 900-6.4 includes permit conditions that specifically address environmental conditions related to facility construction and maintenance, and contains avoidance and mitigation measures that complement application requirements specified in the ORES’ proposed rulemaking for the Siting Program Procedural Regulations. Permit conditions cover matters such as construction hours, monitoring requirements, air emissions, visual impacts, noise impacts, water quality protection, endangered and threatened species, wetlands, agricultural impacts and decommissioning.

Proposed section 900-6.5 contains permit conditions that address the operational phase of a major renewable energy facility.

Finally, proposed section 900-6.6 addresses decommissioning requirements, including financial assurance.

As stated above, the menu of permit conditions proposed in sections 900-6.1 through 900-6.5 are intended to complement the various plans that would be developed by an applicant in accordance with the procedural rules proposed by the ORES and serve as the means to implement compliance with such plans. Pursuant to EL Section 94-c, the ORES would develop site-specific conditions needed to implement specific avoidance, minimization and mitigation measures for any impacts for which USCs have not been developed, or to address a request by an applicant for a site-specific condition in lieu of a USC or application requirement.

Modification of the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement that was published as a part of the Notice of Proposed Rule Making is unnecessary. The rule does not contain any substantial revisions, and non-substantial revisions to the rule text do not render the Regulatory Impact Statement inadequate or incomplete.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2024, which is no later than the 3rd year after the year in which this rule is being adopted.

The Office of Renewable Energy Siting (the Office or ORES) proposed the adoption of uniform standards and conditions at Subpart 900-6 of Chapter XVIII Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR) on September 16, 2020. ORES proposed Subpart 900-6 as required by the Accelerated Renewable Energy Growth and Community Benefit Act (Act) and Executive Law (EL) § 94-c, which became effective on April 3, 2020.

In 2019, New York State enacted the Climate Leadership and Community Protection Act (CLCPA), landmark legislation that established nation-leading goals of fighting climate change by achieving 70% of statewide electrical generation from renewable energy sources by 2030, and reducing the statewide electrical demand system to zero emissions by the year 2040. The Act recognizes that the responsible and timely siting of major renewable energy facilities will be critical to realizing these goals, given the ability of these facilities to reduce carbon emissions.

EL § 94-c consolidates the environmental review and permitting of major renewable energy facilities and provides a single forum in which ORES may undertake a coordinated and timely review of such facilities to meet the State's renewable energy goals, while ensuring the protection of the environment and consideration of all pertinent social, economic, and environmental factors. The statute requires ORES to promulgate regulations to implement EL § 94-c within one year of its effective date.

Notice of Proposed Rule Making for Subpart 900-6 was published in the State Register on September 16, 2020. ORES accepted public comments from September 16, 2020 until December 7, 2020. The proposed regulations were posted on the Office’s website at https://ores.ny.gov/regulations. Promulgation of these rules will effectuate the statute and complement the regulations in 19 NYCRR Subparts 900-1 through 900-5 and 900-7 through 900-15, which establish new siting program procedural regulations that will be utilized by ORES for review of siting permit applications for proposed major renewable energy facilities.

Public Engagement

EL § 94-c requires that ORES develop uniform standards and conditions (USCs) to avoid, minimize or mitigate potential adverse environmental impacts from the siting, design, construction and operation of a major renewable energy facility. Prior to the adoption of the USCs, ORES was required to hold four public hearings in different regions of the State to solicit comments from municipal, or political subdivisions, and the public on the proposed USCs.

ORES promoted public participation in this rulemaking process by following the safest, most protective and responsive course, in light of the global pandemic and in consideration of the Office’s obligation to meet the statutory deadline to promulgate the regulations by April 3, 2021. ORES sought public comment on the draft USCs through seven public hearings. Due to concerns related to the pandemic (i.e., increasing rates of COVID-19 infection in Erie and Monroe Counties and the Governor’s November 9, 2020 designation of those areas as “yellow zones”), ORES changed the format of its November 17th, 18th, and 19th hearings from in-person to virtual pursuant to Executive Orders (EOs) 202.1 and 202.15, extended by EO 202.72.

As a result of the Office’s significant planning efforts, the five virtual public hearings that were held provided the public with meaningful opportunities to participate and comment on the proposed rulemaking safely. The virtual hearings were more widely attended than the two in-person hearings in Albany and Long Island. Participants without internet access were able to call in to register for and participate in the public hearings by telephone; translators and disability assistance were available upon request. Comments were also accepted via email, hard-copy mail, and an online public comment system on the Office’s website.

ORES received oral comments from nearly 200 individuals during the public hearings and over 5,000 letters and emails containing comments and questions from various stakeholders. Many comment submissions raised distinct individualized issues, while many of the form letters, emails and mass mailings repeated similar concerns. Because many of the submissions commented on multiple different aspects of the proposed rules, ORES separated submissions by topic and grouped related comments together. A copy of the full assessment of public comments is available on the ORES website.

After careful consideration of all comments received, ORES made several non-substantive changes to address the comments and to clarify the proposed USCs, as summarized below.

General Comments

ORES received several comments regarding the scope, intent and completeness of Subpart 900-6, including requests for revisions to incentivize developers to choose sites where environmental impacts are avoidable and/or will be consistent with community goals. Comments included questions regarding the applicability of the USCs, notification requirements, and specific concerns related to the regulatory process, natural resources and project design, as well as compliance issues and applicability of local laws.

ORES is required by EL §§ 94-c(3)(b) and (c) to develop USCs “designed to avoid or minimize, to the maximum extent practicable, any potential significant adverse environmental impacts related to the siting, design, construction and operation of a major renewable energy facility.” Such USCs shall apply to those environmental impacts ORES “determines are common to each type of major renewable energy facility.” Id. The proposed USCs would apply to solar and land-based wind facilities.

ORES developed USCs in close consultation with the New York State Department of Public Service, Department of Environmental Conservation, the Department of Agriculture and Markets, and the Office of Parks, Recreation & Historic Preservation. The USCs are intended to function as a list of permit conditions that will apply to land-based wind and solar facilities. Certain USCs set forth specific design criteria or construction requirements, while others require compliance with the project drawings and plans that were provided as part of the application exhibits or compliance filings. (Section 900-6.1(a)).

Promulgation of the USCs is intended to put an applicant for a siting permit on notice of the conditions that would, as applicable, be required by ORES to allow applicants to design their facilities in order to avoid and minimize environmental impacts. The USCs will limit the need for site-specific conditions by addressing in advance issues common to these facilities. Certain permit terms and conditions are inherently site-specific and not appropriately addressed by the USCs, and ORES retains the authority to issue site-specific conditions to address impacts unique to a particular facility, taking into account the CLCPA targets and the environmental benefits of the proposed project.

The draft permit or a statement of intent to deny would be issued for public comment in accordance with the procedural regulations, which are the subject of a separate rulemaking proceeding.

ORES conducted a review of the potential environmental impacts of the regulations pursuant to the State Environmental Quality Review Act (SEQRA) and completed an updated Short Environmental Assessment Form, Coastal Assessment Form and negative declaration, which are on file. Promulgation of the regulations does not include any direct approval of applications for the siting of major renewable energy facilities. Each siting permit application will undergo an individualized, site-specific review by ORES to ensure avoidance or minimization of adverse environmental impacts, to the maximum extent practicable.

EL § 94-c(6) excludes Article 8 of the Environmental Conservation Law from the list of approvals otherwise needed for a major renewable energy facility, and the regulations implement the intent of the statute to undertake a coordinated and timely review of proposed major renewable energy facilities to meet the state's renewable energy goals, while ensuring the protection of the environment and consideration of all pertinent social, economic, and environmental factors in the decision as to whether to permit such facilities.

The USCs were drafted in accordance with statutory requirements, and ORES determined that no substantive changes were warranted. However, several clarifications were made in response to questions and comments, as discussed below.

Specific Provisions

ORES received several comments concerning § 900-6.1, which requires a permittee to implement any impact avoidance, minimization and/or mitigation measures identified in the exhibits, compliance filings and/or contained in a specific plan required under Part 900, as approved by ORES. In addition, it sets forth USCs addressing the expiration date of an issued permit, the need for an applicant to obtain other approvals, and other conditions specifying the scope of authorization contained in a permit issued by ORES, including the requirement for an applicant to receive a Notice to Proceed with Construction from ORES. Based upon comments received, ORES clarified § 900-6.1(d)(3) to reference the “pertinent agency” (as opposed to “local agency”) with respect to implementation of the New York State Uniform Fire Prevention and Building Code and agreed to remove the reference to “informational” documents from the pre-construction compliance filings that would be required following a Notice to Proceed with Site Preparation under § 900-6.1(g), as no such filings are required by the regulations.

ORES received several comments concerning the provisions of § 900-6.2, which specify the notifications that would be required prior to construction, following construction and following restoration of the site. ORES clarified that the required pre-construction notice required in § 900-6.2(a)(1) be provided to “all persons residing” within one (1) mile of a solar facility and five (5) miles of a wind facility, to conform to other notice provisions in the regulations. Additionally, ORES agreed to clarify § 900-6.2(c) to acknowledge that details related to construction schedule and transportation routes must be included only in the pre-construction notification.

ORES received several comments concerning § 900-6.4, which includes USCs that specifically address environmental conditions related to facility construction and maintenance and contains avoidance and mitigation measures that complement application requirements specified in the Office’s rulemaking for the procedural regulations. The USCs include requirements related to notifications, facility construction and maintenance, construction hours, monitoring, air emissions, visual impacts, noise impacts, water quality protection, endangered and threatened species, wetlands, agricultural impacts and decommissioning. ORES considered these comments and, for the majority of them, determined that no changes were warranted in response.

However, multiple comments and questions were received regarding “de minimis” impacts to threatened or endangered grassland birds. One comment in particular requested clarification as to how the discovery of an active nest on a site during construction would affect a previous determination of de minimis impact to NYS threatened or endangered grassland bird species habitat. Revisions were made to § 900-6.4(o)(2)(i) to clarify that the discovery of an active nest prior to or during construction would require further consultation with the NYSDPS and the Office. In addition, in response to several questions regarding the mitigation ratios applied to impacts to threatened or endangered grassland bird habitat, text was added to clarify the basis for those ratios (§ 900-6.4(o)(3)(ix)).

ORES received several comments concerning § 900-6.5, which contains permit conditions that address the operational phase of a major renewable energy facility. Comments were received regarding allowable noise limits, required measurements, exceedances, complaint resolution and incident reporting. With respect to USCs for noise levels of wind facilities from all sources, commenters requested clarification as to the definition of prominent tones at § 900-6.5(a)(1)(ii), which ORES agreed to implement together with related clarifications at §§ 900-2.8(b)(1)(ii) and (b)(2)(iii).

ORES received several comments concerning § 900-6.6, which addresses decommissioning requirements, including financial assurance; however, ORES determined that no changes were necessary.

ORES reviewed all remaining comments and concluded that no changes were warranted.