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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.

September 17, 2020

NYS Office of Renewable Energy Siting Proposes New Rules Implementing the Major Renewable Energy Development Program

We previously reported the passage of the new Accelerated Renewable Energy Growth and Community Benefit Act (Act) as part of the NYS budget. Among the Act’s many components is the Major Renewable Energy Development program, which established the Office of Renewable Energy Siting (ORES), housed in the NYS Department of State. The Act mandated that within one year of its effective date, ORES establish draft regulations and a set of uniform standards and conditions for the siting, design, construction, and operation of each type of major renewable energy facility.

In accordance with the mandate, on September 16, 2020, ORES published its draft regulations for siting Permits for major renewable energy projects. To complement the proposed Siting Permit regulations, ORES has also proposed uniform standards and conditions establishing substantive requirements for permit applications for those same major renewable energy facilities. In a statement issued on September 16, 2020, NYS Governor Cuomo stated, “These regulations will supercharge our growing green economy and reaffirm New York’s position as a definitive hub of the clean energy sector through a revamped and rapid process for building and delivering emissions-free power.” The proposed regulations as well as uniform standards and conditions are now available at ores.ny.gov.

As part of the act, those seeking to construct or expand any major renewable energy facility will be required to seek a permit through ORES. The regulations define a major renewable energy facility as any renewable energy system meeting the definition set forth in Section 66-p of the New York Public Service Law with a nameplate capacity of 25 megawatts or more. The regulations specifically exclude stand-alone battery storage from the ORES process. Projects already in the initial phases of the existing Article 10 siting process before the Siting Board have the option to remain in the Article 10 process or opt in to the new siting process under ORES. New projects sized between 20 and 25 megawatts will have the option to opt in to the ORES process or pursue permitting in accordance with local laws and the State Environmental Quality Review Act.

As set forth in the State Register notice, ORES is conducting multiple in-person public hearings on the proposed uniform standards and conditions, commencing on November 17, at various locations throughout the state. Virtual public hearings, with participation available via both electronic media and telephone, will be held on November 24 and November 30. Advance registration for the virtual hearings is necessary by November 20 if participants would like to make a statement at the hearings. General public comments will be received by ORES up to five days after the last scheduled public hearing. While no public hearings are scheduled on the newly proposed regulations, ORES is receiving public comments through November 15, 2020, on the proposed regulations. More information on the public hearings and the opportunity to provide comments can be found at ores.ny.gov.

Our team at Barclay Damon is closely monitoring these recent developments with respect to the ORES siting process and prepared to assist clients in assessing the impacts of these new regulations and uniform standards and conditions, preparing comments on behalf of these clients, and ultimately navigating renewable energy projects through this new regulatory regime.

If you have any questions regarding the content of this alert, 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, Regulatory Practice Area co-chair, at esenlet@barclaydamon.com; Angela Sicker, associate, at asicker@barclaydamon.com; or Mary Volcko, project specialist, at mvolcko@barclaydamon.com.

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