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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

May 5, 2020

Deep Dive Part Three: NYSERDA Build-Ready Program

We recently issued an alert announcing the NYS Legislature passing the Accelerated Renewable Energy Growth and Community Benefit Act to expedite siting of renewable energy projects in New York State. In Part One of our “Deep Dive” series, we discussed the new accelerated siting process in more detail. In Part Two, we provided an overview of the Act’s amendments to Article VII of the Public Service Law and described how the Act seeks to prioritize the planning and cost-effective development of distribution and transmission infrastructure. In today’s Part Three, we discuss the New York State Energy Research and Development Authority (NYSERDA) Build-Ready Program, which aims to advance large-scale renewable energy projects by acquiring, developing, and permitting sites consistent with the state’s standards.

The Act directs NYSERDA to develop build-ready sites, prioritizing the development of existing or abandoned commercial sites, brownfields, landfills, former industrial sites, and abandoned or underutilized sites. Under the Act, for each build-ready site, NYSERDA will acquire all necessary real property interests (likely through leasing), review siting feasibility, secure interconnection approvals, and obtain a siting permit for major renewable energy facilities from the Office of Renewable Siting. NYSERDA does not intend to use eminent domain to acquire the sites.

NYSERDA will also undertake all design, planning, and other appropriate activities. While doing so, NYSERDA will consult with the Department of Public Service, Department of Environmental Conservation, New York State Urban Development Corporation, and other agencies. If a proposed build-ready site is more appropriate for a project with a nameplate capacity of less than 20 MW, NYSERDA will seek permits from the applicable locality with appropriate environmental review conducted pursuant to the NYS Environmental Quality Review Act.

In selecting sites for the Build-Ready Program, NYSERDA will consider certain parameters, including, but not limited to, the following:

  1. Natural conditions at the site that are favorable to renewable energy generation
  2. Current land uses at or near the site
  3. Environmental conditions at or near the site
  4. The availability and characteristics of any nearby transmission or distribution facilities that could be used to facilitate the delivery of energy from the site, including existing or potential constraints on such facilities
  5. The potential for the development of energy storage facilities at or near the site
  6. Potential impacts of development on environmental justice communities
  7. Expressions of commercial interest in the site or general location by developers of major renewable energy facilities

Once sites are selected and interconnection approvals and permits have been obtained, NYSERDA will competitively auction the build-ready sites, bundled with contracts for renewable energy payments, to provide a fully de-risked package for private developers to construct and operate projects at these sites. Through the Build-Ready Program, NYSERDA aims to work collaboratively with private developers, and NYSERDA has repeatedly assured the stakeholders that it seeks to enhance—not replace—the work of the private sector. NYSERDA’s ultimate goal is to hand over all necessary property rights and final interconnection approvals and siting permits to successful bidders to construct and operate major renewable energy facilities on the build-ready sites.

The Build-Ready Program is intended not only to reduce risks for private developers, but also to benefit host communities through the Host Community Benefit Program, which will offer tangible benefits and incentives for hosting renewable energy facilities as well as green jobs. NYSERDA plans to work closely with local governments to ensure that proper sites are picked. During the site selection, NYSERDA will also consult with the Department of Economic Development and the Department of Labor on the need for green job workforce training in the area of the build-ready sites.

This past Friday, May 1, NYSERDA held a webinar on the Build-Ready Program and set up a new website discussing the implementation of this program. Currently, NYSERDA is also developing a formal process to take in site suggestions.

As for the next steps, NYSERDA must file a petition with the NYS Public Service Commission (PSC) seeking funding for the Build-Ready Program for at least a five-year period. Once the funding petition is filed, the PSC will be required to act on it within four months. Also, within the near future, NYSERDA will initiate a statewide assessment to identify sites for consideration. NYSERDA is also planning to hold local meetings as soon as practicable, likely once the current stay-home restrictions are relaxed.

Our regulatory and renewable energy attorneys will continue to monitor these and other developments on the implementation of the Build-Ready Program and will issue subsequent legal alerts.

If you have any questions regarding the Act or the Build-Ready Program or if you would like to discuss how these recent developments might may impact your projects in New York State, please contact Brenda Colella, Regulatory Practice Area co-chair and co-team leader of the Renewable Energy and Energy Markets Teams, at bcolella@barclaydamon.com; Ekin Senlet, partner, at esenlet@barclaydamon.com; or Angela Sicker, law clerk, at asicker@barclaydamon.com.

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