NY Exec L § 94-C (2021)
2021 New York Laws EXC - Executive Article 6 - Department of State 94-C - Major Renewable Energy Development Program.

* §  94-c.  Major renewable energy development program. 1. Purpose. It is the purpose of this section to consolidate the  environmental  review and permitting of major renewable energy facilities in this state and to provide  a  single  forum in which the office of renewable energy siting created by this section may 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 to permit such facilities as  more  specifically provided in this section.   2.  Definitions. (a) "Executive director" or "director" shall mean the executive director of the office of renewable energy siting.  (b) "CLCPA targets" shall mean the public policies established in  the climate  leadership  and community protection act enacted in chapter one hundred six  of  the  laws  of  two  thousand  nineteen,  including  the requirement  that a minimum of seventy percent of the statewide electric generation be produced by  renewable  energy  systems  by  two  thousand thirty,  that  by  the  year two thousand forty the statewide electrical demand system will generate zero emissions and  the  procurement  of  at least  nine  gigawatts  of  offshore  wind electricity generation by two thousand thirty-five, six gigawatts of photovoltaic solar generation  by two  thousand  twenty-five  and  to support three gigawatts of statewide energy storage capacity by two thousand thirty.  (c) "Local  agency  account"  or  "account"  shall  mean  the  account established by the office pursuant to subdivision seven of this section.  (d) "Local agency" means any local agency, board, district, commission or  governing  body,  including  any  city,  county, and other political subdivision of the state.  (e) "Municipality" shall mean a county, city, town, or village.  (f)  "Office"  shall  mean  the  office  of  renewable  energy  siting established pursuant to this section.  (g) "Department" shall mean the department of state.  (h)  "Major  renewable  energy  facility"  means  any renewable energy system, as such term is defined in section  sixty-six-p  of  the  public service  law  as  added  by  chapter  one hundred six of the laws of two thousand nineteen, with a nameplate generating capacity  of  twenty-five thousand  kilowatts  or  more,  and any co-located system storing energy generated from such a renewable energy system prior to delivering it  to the  bulk transmission system, including all associated appurtenances to electric plants as defined under section two of the public service  law, including electric transmission facilities less than ten miles in length in order to provide access to load and to integrate such facilities into the state's bulk electric transmission system.  (i)  "Siting  permit"  shall  mean the major renewable energy facility siting permit established pursuant to this section  and  the  rules  and regulations promulgated by the office.  (j)  "Dormant electric generating site" shall mean a site at which one or more electric generating  facilities  produced  electricity  but  has permanently ceased operating.   3.  Office  of renewable energy siting; responsibilities. (a) There is hereby established within the department an office of  renewable  energy siting  which  is  charged  with  accepting applications and evaluating, issuing, amending, approving the assignment and/or  transfer  of  siting permits.  The  office  shall  exercise  its authority by and through the executive director.  (b) The office shall within one year of the  effective  date  of  this section  establish  a  set  of  uniform standards and conditions for the siting, design,  construction  and  operation  of  each  type  of  major  renewable  energy  facility  relevant  to  issues  that  are  common for particular classes and categories of major renewable energy  facilities, in  consultation with the New York state energy research and development authority,  the department of environmental conservation, the department of public service, the department of agriculture and markets, and  other relevant  state  agencies and authorities with subject matter expertise. Prior to adoption of uniform standards and conditions, the office  shall hold  four  public hearings in different regions of the state to solicit comment from municipal, or political subdivisions,  and  the  public  on proposed uniform standards and conditions to avoid, minimize or mitigate potential   adverse  environmental  impacts  from  the  siting,  design, construction and operation of a major renewable energy facility.  (c) The uniform standards and conditions established pursuant to  this section  shall  be  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 uniform standards and  conditions  shall apply to those environmental impacts the office determines are common to each type of major renewable energy facility.  (d)  In  its  review of an application for a permit to develop a major renewable  energy  facility,  the  office,  in  consultation  with   the department   of   environmental   conservation,   shall  identify  those site-specific environmental impacts, if  any,  that  may  be  caused  or contributed  to  by  a specific proposed major renewable energy facility and are unable to be addressed by the uniform standards and  conditions. The   office   shall  draft  in  consultation  with  the  department  of environmental conservation site specific permit terms and conditions for such impacts, including  provisions  for  the  avoidance  or  mitigation thereof,  taking  into  account  the CLCPA targets and the environmental benefits of the proposed  major  renewable  energy  facility,  provided, however,  that  the office shall require that the application of uniform standards and conditions and site-specific conditions  shall  achieve  a net  conservation  benefit  to  any  impacted  endangered and threatened species.  (e) To the  extent  that  environmental  impacts  are  not  completely addressed  by  uniform standards and conditions and site-specific permit conditions proposed by  the  office,  and  the  office  determines  that mitigation  of  such impacts may be achieved by off-site mitigation, the office may require payment of a fee by the  applicant  to  achieve  such off-site  mitigation. If the office determines, in consultation with the department of environmental conservation, that mitigation of impacts  to endangered  or  threatened  species  that  achieves  a  net conservation benefit can be achieved by off-site mitigation, the amount  to  be  paid for  such  off-site  mitigation  shall  be set forth in the final siting permit. The office may require payment of funds sufficient to  implement such  off-site  mitigation  into  the  endangered and threatened species mitigation fund established pursuant to section  ninety-nine-hh  of  the state finance law.  (f)  The  office,  by  and  through  the  executive director, shall be authorized to conduct hearings and dispute resolution proceedings, issue permits, and adopt such rules, regulations  and  procedures  as  may  be necessary,  convenient,  or desirable to effectuate the purposes of this section.  (g) The office shall within one year of the  effective  date  of  this section  promulgate  rules and regulations with respect to all necessary requirements to implement the siting permit program established in  this section and promulgate modifications to such rules and regulations as it deems  necessary;  provided that the office shall promulgate regulations  requiring the service of applications  on  affected  municipalities  and political subdivisions simultaneously with submission of the application to the office.  (h)  At  the  request  of  the  office,  all  other state agencies and authorities are hereby authorized to provide support and render services to the office within their respective functions.  (i) Notwithstanding any other provision of law, rule, or regulation to the contrary and consistent with appropriations therefor,  employees  of any  state  agency  who are necessary to the functions of the office and who may be substantially engaged in the  performance  of  its  functions shall  be transferred to the office in accordance with the provisions of section seventy of the civil service law. Employees transferred pursuant to this section shall be  transferred  without  further  examination  or qualification   and   shall   retain   their  respective  civil  service classifications.  Nothing  set  forth  in  this  subdivision  shall   be construed  to impede, infringe, or diminish the rights and benefits that accrue to employees through collective bargaining agreements, impact  or change  an  employee's  membership  in  a  bargaining unit, or otherwise diminish the integrity of the collective bargaining relationship.   4. Applicability. (a) On and after the effective date of this section, no person shall commence the preparation of a site  for,  or  begin  the construction  of,  a  major  renewable  energy facility in the state, or increase the capacity of an existing major  renewable  energy  facility, without  having first obtained a siting permit pursuant to this section. Any such major renewable energy facility with respect to which a  siting permit  is issued shall not thereafter be built, maintained, or operated except in conformity with such siting permit and any terms, limitations, or  conditions  contained  therein,  provided  that  nothing   in   this subdivision  shall  exempt  such  major  renewable  energy facility from compliance with federal laws and regulations.  (b) A siting permit  issued  by  the  office  may  be  transferred  or assigned,  subject  to  the  prior  written approval of the office, to a person that agrees to comply with the terms, limitations and  conditions contained in such siting permit.  (c)  The  office  or a permittee may initiate an amendment to a siting permit under this section. An  amendment  initiated  by  the  office  or permittee  that  is  likely  to  result  in any material increase in any environmental impact or involves a substantial change to  the  terms  or conditions  of  a  siting permit shall comply with the public notice and hearing requirements of this section.  (d) Any hearings or dispute  resolution  proceedings  initiated  under this section or pursuant to rules or regulations promulgated pursuant to this section may be conducted by the executive director or any person to whom  the  executive  director shall delegate the power and authority to conduct such hearings or proceedings in the name of the  office  at  any time and place.  (e) This section shall not apply:  (i) to a major renewable energy facility, or any portion thereof, over which  any  agency or department of the federal government has exclusive siting jurisdiction, or has siting jurisdiction concurrent with that  of the  state  and  has  exercised  such  jurisdiction  to the exclusion of regulation of the facility by  the  state;  provided,  however,  nothing herein shall be construed to expand federal jurisdiction;  (ii)   to  normal  repairs,  maintenance,  replacements,  non-material modifications and improvements of a  major  renewable  energy  facility, whenever  built,  which are performed in the ordinary course of business and which do not constitute  a  violation  of  any  applicable  existing permit;  (iii)  to  a  major  renewable  energy  facility  if, on or before the effective date of this section, an application has been made or  granted for  a  license,  permit,  certificate,  consent  or  approval  from any federal, state or local commission, agency, board  or  regulatory  body, including the submission of a pre-application public involvement program plan  under  article  ten of the public service law and its implementing regulations, in which application the location of  the  major  renewable energy facility has been designated by the applicant, except in the case of  a  person  who elects to be subject to this section as authorized by paragraph e of subdivision four of section one hundred sixty-two of  the public service law.  (f)  Any  person  intending  to  construct  a  major  renewable energy facility excluded from this section pursuant to paragraph (ii) or  (iii) of  paragraph (e) of this subdivision may elect to become subject to the provisions of this section by filing an application for a siting permit. This section shall thereafter  apply  to  each  major  renewable  energy facility  identified  in such notice from the date of its receipt by the office. With respect to such  major  renewable  energy  facilities,  the rules  and  regulations  promulgated  pursuant to this section shall set forth an expedited permitting process to account for matters and  issues already  presented  and  resolved  in  relevant  alternative  permitting proceedings.  (i) With respect to a major renewable energy  facility  for  which  an application  was  previously  reviewed  pursuant  to  article ten of the public service law, and  for  which  a  completeness  determination  had already  been  issued  at  the time an application was filed pursuant to this section, such application shall be considered complete pursuant  to this section upon filing.  (ii)  With  respect  to a major renewable energy facility for which an application was previously reviewed  pursuant  to  article  ten  of  the public  service  law, and for which a completeness determination had not been issued at the time the  application  was  filed  pursuant  to  this section,  the  sixty-day  time  period  provided  in  paragraph  (b)  of subdivision five of this section shall commence upon filing.  (g) Any person intending to construct a facility that is  a  renewable energy  system,  as  such  term is defined in section sixty-six-p of the public service law as added by chapter one hundred six of  the  laws  of two  thousand  nineteen,  with  a  nameplate capacity of at least twenty thousand but less than twenty-five  thousand  kilowatts,  may  apply  to become   subject  to  the  provisions  of  this  section  by  filing  an application for a siting permit. Upon submission  of  such  application, the  subject  renewable  energy  facility  shall  be treated as a "major renewable energy facility" exclusively for purposes of permitting  under this section.   5.  Application,  municipal  notice  and  review. (a) Until the office establishes uniform standards and  conditions  required  by  subdivision three of this section and promulgates regulations specifying the content of  an  application  for  a  siting  permit, an application for a siting permit submitted to the office shall conform substantially to  the  form and content of an application required by section one hundred sixty-four of the public service law.  (b)  Notwithstanding any law to the contrary, the office shall, within sixty days of  its  receipt  of  an  application  for  a  siting  permit determine  whether  the application is complete and notify the applicant of its determination. If  the  office  does  not  deem  the  application complete,  the  office  shall  set  forth  in  writing  delivered to the applicant the reasons why  it  has  determined  the  application  to  be incomplete.  If  the  office  fails  to  make a determination within the  foregoing  sixty-day  time  period,  the  application  shall  be  deemed complete;  provided,  however,  that  the  applicant  may  consent to an extension of the  sixty-day  time  period  for  determining  application completeness.  Provided,  further,  that  no application may be complete without  proof  of  consultation  with  the  municipality  or  political subdivision  where  the  project is proposed to be located, or an agency thereof, prior to submission of an application to the office, related to procedural and substantive requirements of local law.  (c) (i) No later than sixty days following  the  date  upon  which  an application  has  been  deemed complete, and following consultation with any relevant state agency or authority, the  office  shall  publish  for public  comment  draft  permit  conditions prepared by the office, which comment period shall be for a minimum of sixty days from  public  notice thereof.  Such public notice shall include, at a minimum, written notice to  the  municipality  or  political  subdivision  in  which  the  major renewable  energy  facility  is proposed to be located; publication in a newspaper or in electronic form,  having  general  circulation  in  such municipality  or  political  subdivision;  and  posted  on  the office's website.  (ii) For any municipality, political subdivision or an agency  thereof that  has  received  notice of the filing of an application, pursuant to regulations  promulgated  in   accordance   with   this   section,   the municipality or political subdivision or agency thereof shall within the timeframes  established  by  this  subdivision submit a statement to the office indicating whether the proposed facility is designed to be sited, constructed and operated in compliance with applicable  local  laws  and regulations,  if  any,  concerning the environment, or public health and safety. In the event that a municipality, political  subdivision  or  an agency  thereof  submits  a  statement  to  the office that the proposed facility is not  designed  to  be  sited,  constructed  or  operated  in compliance with local laws and regulations and the office determines not to hold an adjudicatory hearing on the application, the department shall hold  non-adjudicatory  public  hearing  in the affected municipality or political subdivision.  (d) If public comment on a draft permit  condition  published  by  the office  pursuant  to  this subdivision, including comments provided by a municipality or political subdivision or agency thereof, or  members  of the  public  raises  a  substantive and significant issue, as defined in regulations  adopted   pursuant   to   this   section,   that   requires adjudication,  the  office shall promptly fix a date for an adjudicatory hearing to hear arguments and consider evidence with respect thereto.  (e) Following the expiration of the public comment period set forth in this subdivision, or following the conclusion of  a  hearing  undertaken pursuant  to this subdivision, the office shall, in the case of a public comment period, issue  a  written  summary  of  public  comment  and  an assessment  of  comments  received,  and  in the case of an adjudicatory hearing, the executive officer or  any  person  to  whom  the  executive director  has  delegated  such  authority,  shall  issue a final written hearing report. A final siting permit may only be issued if  the  office makes  a finding that the proposed project, together with any applicable uniform and site-specific standards and  conditions  would  comply  with applicable  laws  and  regulations.  In  making  this determination, the office may elect not to apply, in whole or in part,  any  local  law  or ordinance  which  would  otherwise  be  applicable if it makes a finding that, as applied to the proposed major renewable energy facility, it  is unreasonably   burdensome   in   view  of  the  CLCPA  targets  and  the environmental benefits of the proposed major renewable energy facility.  (f)  Notwithstanding  any  other  deadline  made  applicable  by  this section,  the  office shall make a final decision on a siting permit for any major renewable energy project within one year  from  the  date  the application  was deemed complete, or within six months from the date the application  was  deemed complete if the major renewable energy facility is proposed to be sited on an  existing  or  abandoned  commercial  use, including  without limitation, brownfields, landfills, former commercial or industrial sites, dormant electric generating sites, and abandoned or otherwise underutilized sites, as further  defined  by  the  regulations promulgated  by  this  section. Unless the office and the applicant have agreed to an extension, with such extension limited to thirty days,  and if a final siting permit decision has not been made by the office within such  time  period, then such siting permit shall be deemed to have been automatically granted for all purposes set forth in this section and all uniform conditions or site specific permit conditions issued for  public comment  shall  constitute  enforceable provisions of the siting permit. The  final  siting  permit  shall  include  a  provision  requiring  the permittee  to  provide  a  host  community  benefit, which may be a host community  benefit  as  determined  by  the  public  service  commission pursuant  to  section  eight  of the chapter of the laws of two thousand twenty that added this section or such other project  as  determined  by the  office  or  as subsequently agreed to between the applicant and the host community.  (g) Any party aggrieved by the issuance or denial of  a  permit  under this  section  may  seek judicial review of such decision as provided in this paragraph. (i) A  judicial  proceeding  shall  be  brought  in  the appellate  division of the supreme court of the state of New York in the judicial department embracing the county wherein the facility is  to  be located  or,  if  the  application  is  denied,  the  county wherein the applicant has proposed to locate the facility. Such proceeding shall  be initiated  by  the filing of a petition in such court within ninety days after the issuance of a final decision by the office together with proof of service of a demand on the office to file with said court a copy of a written transcript of the record of the proceeding and  a  copy  of  the office's  decision  and  opinion.  The office's copy of said transcript, decision and opinion, shall be available at all reasonable times to  all parties  for examination without cost. Upon receipt of such petition and demand the office shall forthwith deliver to the court  a  copy  of  the record  and  a copy of the office's decision and opinion. Thereupon, the court shall have jurisdiction of the proceeding and shall have the power to grant such relief as it deems just and proper, and to make and  enter an  order  enforcing,  modifying and enforcing as so modified, remanding for further specific evidence or findings or setting aside in  whole  or in  part such decision. The appeal shall be heard on the record, without requirement of reproduction, and upon briefs to the court. The  findings of fact on which such decision is based shall be conclusive if supported by  substantial evidence on the record considered as a whole and matters of judicial notice set forth in the opinion.  The  jurisdiction  of  the appellate  division  of  the  supreme  court  shall be exclusive and its judgment and order shall be final, subject to review  by  the  court  of appeals in the same manner and form and with the same effect as provided for appeals in a special proceeding. All such proceedings shall be heard and determined by the appellate division of the supreme court and by the court of appeals as expeditiously as possible and with lawful precedence over all other matters.  (ii) The grounds for and scope of review of the court shall be limited to whether the decision and opinion of the office are:  (A)  In  conformity with the constitution, laws and regulations of the state and the United States;  (B)  Supported  by  substantial  evidence in the record and matters of judicial notice properly considered and applied in the opinion;  (C) Within the office's statutory jurisdiction or authority;  (D) Made in accordance with procedures set forth in  this  section  or established by rule or regulation pursuant to this section;  (E) Arbitrary, capricious or an abuse of discretion; or  (F) Made pursuant to a process that afforded meaningful involvement of citizens  affected  by  the  facility  regardless  of  age, race, color, national origin and income.  (iii) Except as herein provided article  seventy-eight  of  the  civil practice law and rules shall apply to appeals taken hereunder.   6.  Powers of municipalities and state agencies and authorities; scope of section. (a) Notwithstanding any other provision  of  law,  including without  limitation  article eight of the environmental conservation law and article seven of the public service  law,  no  other  state  agency, department or authority, or any municipality or political subdivision or any  agency  thereof  may,  except  as  expressly  authorized under this section or the rules and regulations  promulgated  under  this  section, require any approval, consent, permit, certificate, contract, agreement, or other condition for the development, design, construction, operation, or  decommissioning of a major renewable energy facility with respect to which an application for a siting permit has been filed, provided in the case of a municipality, political subdivision or an agency thereof, such entity has received notice of the filing of  the  application  therefor. Notwithstanding   the   foregoing,   the   department  of  environmental conservation shall be the permitting agency for permits issued  pursuant to federally delegated or federally approved programs.  (b)  This  section  shall not impair or abrogate any federal, state or local  labor  laws  or  any  otherwise  applicable  state  law  for  the protection  of  employees engaged in the construction and operation of a major renewable energy facility.  (c) The department of public service or the public service  commission shall  monitor,  enforce  and  administer  compliance with any terms and conditions set forth in a permit issued pursuant to this section and  in doing  so  may  use  and rely on authority otherwise available under the public service law.   7. Fees; local agency account.  (a)  Each  application  for  a  siting permit  shall be accompanied by a fee in an amount equal to one thousand dollars for each thousand kilowatts of capacity of  the  proposed  major renewable  energy facility, to be deposited in an account to be known as the local agency account established for the benefit of  local  agencies and  community  intervenors  by  the  New York state energy research and development authority and maintained in  a  segregated  account  in  the custody  of  the  commissioner  of  taxation and finance. The office may update the  fee  periodically  solely  to  account  for  inflation.  The proceeds of such account shall be disbursed by the office, in accordance with eligibility and procedures established by the rules and regulations promulgated   by   the   office   pursuant  to  this  section,  for  the participation of local agencies  and  community  intervenors  in  public comment  periods  or  hearing  procedures  established  by this section, including the rules and regulations promulgated  hereto;  provided  that fees  must be disbursed for municipalities, political subdivisions or an agency thereof, to determine whether a proposed facility is designed  to be  sited,  constructed  and  operated in compliance with the applicable local laws and regulations.  (b) All funds so held by  the  New  York  state  energy  research  and development authority shall be subject to an annual independent audit as part   of  such  authority's  audited  financial  statements,  and  such authority shall prepare an annual report  summarizing  account  balances and  activities  for  each  fiscal  year  ending  March thirty-first and provide such report to the  office  no  later  than  ninety  days  after commencement of such fiscal year and post on the authority's website.  (c) With respect to a person who has filed an application for a siting permit pursuant to subdivision four of this section, any amounts held in an  intervenor account established pursuant to articles seven and ten of the public service law  shall  be  applied  to  the  intervenor  account established by this subdivision.  (d)  In  addition to the fees established pursuant to paragraph (a) of this subdivision, the office, pursuant to regulations  adopted  pursuant to  this  section,  may assess a fee for the purpose of recovering costs the office incurs.   * NB Repealed December 31, 2030   8. Farmland protection working group. (a) There is hereby  created  in the  executive department a farmland protection working group consisting of appropriate stakeholders, including but not limited to:  (i) the commissioner of the department of agriculture and markets;  (ii) the commissioner of the department of environmental conservation;  (iii) the executive director of the office;  (iv) the commissioner of the department of public service;  (v)  the  president  of  the  New  York  state  energy  research   and development authority;  (vi)  local  government  officials  or  representatives from municipal organizations representing towns, villages, and counties;  (vii) representatives  from  at  least  two  county  agricultural  and farmland protection boards.  (b)  The  working  group  shall,  no  later  than  one  year after the effective date of this subdivision, recommend  strategies  to  encourage and  facilitate  input  from municipalities in the siting process and to develop recommendations that include approaches to recognize  the  value of  viable  agricultural land and methods to minimize adverse impacts to any such land resulting  from  the  siting  of  major  renewable  energy facilities.  (c)  The  working group, on call of the commissioner of the department of agriculture and markets, shall meet at least three  times  each  year and at such other times as may be necessary.