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November 30, 2023

NYS Siting Board Grants Developer's Petition for Relief From County's Unreasonable Delay

On November 28, 2023, the New York State Board on Electric Generation Siting and the Environment (the Siting Board) granted Alle-Catt Wind Energy’s (Alle-Catt) Petition for Relief relating to disputes with Cattaraugus County over a proposed road-use agreement. The Siting Board’s decision comes after three years of unsuccessful negotiations between Alle-Catt and Cattaraugus County surrounding the use of county roads for the transportation of materials to Alle-Catt’s certificated 340-megawatt wind electric-generating facility. 

The Siting Board originally granted Alle-Catt a Certificate of Environmental Compatibility and Public Need (Certificate) under New York State Public Service Law Article 10 (Article 10) in June 2020. While Article 10 preempts local procedural laws relating to the construction and operation of major electric generating facilities, here the Siting Board authorized the delegation of authority to the county to exercise control over its roads and highways with respect to the construction, operation, and maintenance of the wind project and required Alle-Catt to submit road-use agreements with the towns and counties where they would be transporting materials. 

Since 2020, Alle-Catt has successfully negotiated road-use agreements with Wyoming County and the Towns of Arcade, Centerville, Eagle, Farmersville, Freedom, and Rushford. However, Alle-Catt and Cattaraugus County could not come to an agreement. 

Alle-Catt and Cattaraugus County disagreed on many provisions in their draft road-use agreement, including a provision that would allow the county to review road-use agreements that Alle-Catt executed with other municipalities for inconsistencies with Cattaraugus County’s agreement.

Ultimately, based upon its review of the specific facts and history of negotiations between Alle-Catt and Cattaraugus County, the Siting Board found that Cattaraugus County caused unreasonable delay in failing to approve a road-use agreement for Alle-Catt after three years and further found that “allowing the delay to continue would be contrary to the purposes of Article 10.” The Siting Board withdrew the authority delegated to Cattaraugus County to exercise control over its roads and highways with respect to the construction, operation, and maintenance of the Alle-Catt project. 

With this decision, the Siting Board reaffirmed the preemptory powers of Article of 10 and put Alle-Catt another step closer to the construction and commercial operation of its wind project. 

Attorneys in Barclay Damon’s Regulatory Practice Area will continue to monitor this and other developments affecting the renewable energy industry in New York State.

If you have any questions regarding the content of this alert, please contact Brenda Colella, Regulatory Practice Area co-chair and co-leader of the Renewable Energy and Energy Markets Teams, at bcolella@barclaydamon.com; Ekin Senlet, Regulatory Practice Area co-chair, at esenlet@barclaydamon.com; or Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com
 

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