On June 23, 2025, the New York State Department of Environmental Conservation (DEC) adopted regulations establishing the Endangered and Threatened Species Mitigation Bank Fund (Mitigation Bank Fund) for large-scale renewable energy generation and transmission projects.
Under the Accelerated Renewable Energy Growth and Community Benefit Act and the Renewable Action Through Project Interconnection and Deployment Act, large-scale renewable energy project developers must demonstrate that they have avoided, minimized, or mitigated potential adverse impacts to endangered or threatened species posed by their proposed projects as part of the permitting process for these projects by the Office of Renewable Energy Siting and Electric Transmission (ORES). If a developer cannot avoid these adverse impacts, DEC works with ORES to evaluate whether the anticipated unavoidable adverse impacts to endangered or threatened species can be effectively mitigated by the developer. Effective mitigation must achieve a net conservation benefit to species adversely impacted.
The Mitigation Bank Fund provides an alternative mechanism to developer-implemented mitigation based on DEC’s quantification of what would be necessary to achieve a net conservation benefit. Payments are based on the degree of impact (i.e., “take”) on the species as well as a variety of considerations, such as land acquisition, labor, supplies, and overhead costs. As an example, when calculating mitigation costs associated with bald eagles, DEC noted that the United States Fish and Wildlife Service (USFWS) only accepts electric pole retrofitting as an acceptable mitigation action. DEC then used analyses from the Federal Eagle Coordinator for the Northeast USFWS administrative region, which covers New York State, and the National Eagle Conservation Guidance to arrive at its total estimate of mitigation cost per affected eagle.
Estimates for mitigation are provided in the regulatory impact statement for grassland birds, bald eagles, and the northern long-eared bat. Only endangered or threatened species recognized by New York State would be covered by the Mitigation Bank Fund. DEC will provide further mitigation cost estimates on their website as they become available.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; Tom Paul, partner, at tpaul@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team.