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October 3, 2023

ORES Issues Declaratory Ruling Concerning Its Jurisdiction Over Repowering of Wind Farms Originally Approved Under Local Laws and SEQRA

On September 27, 2023, the executive director of the Office of Renewable Energy Siting (ORES) issued a declaratory ruling in response to a request made nearly a year ago, on September 28, 2022, by AES Clean Energy Development, LLC (AES). AES requested clarification as to whether its proposal to repower six distinct wind farms—Bliss, Wethersfield, Altona, Clinton, Ellenburg, and Chateaugay Windparks—it now owns in New York’s Wyoming, Clinton, and Franklin Counties, would be subject to the jurisdiction of ORES. 

In the ruling, ORES concluded that the repowering of these projects is subject to the jurisdiction of ORES and the permitting process under Executive Law § 94-c.

AES’s six wind farms were originally approved in 2008 during the eight-year period that there was no statewide permitting process (either under Executive Law § 94-c or Public Service Law Article 10) for these types of facilities. Therefore, at that time, approvals for these six wind farms were obtained from the affected local municipalities pursuant to their local laws and the State Environmental Quality Review Act (SEQRA).

In its request for a declaratory ruling, AES noted that the wind farms are approaching the end of their 20-year useful life and that it intends to replace the existing turbines and other equipment instead of decommissioning the facilities. As part of the repowering, no new turbines would be constructed, existing generators would be refurbished and reused, and the access roads and support systems would only be modified where necessary.

AES contended that the repowering of these six wind farms falls within the stated exceptions to the jurisdiction of ORES, as listed in the Section 94-c regulations, including: (1) the “repair and replacement” of existing facilities in the ordinary course of business and (2) for projects permitted prior to the enactment of Section 94-c. AES also contended that “repair and replacement of existing facilities” for the repowering would not be “construction or expansion of a major renewable energy facility that requires a siting permit under Executive Law § 94-c(4)(a)” and that, while the repowering would slightly increase the nameplate capacity of each turbine from 1.5 MW to 1.62 MW, the turbines would be subject to system controls that would ensure each facility would not exceed the aggregate net output currently delivered at the point of interconnection. Accordingly, AES argued that the approval of the repowering projects should be accomplished under SEQRA and local law processes.

While acknowledging that Section 94-c does not expressly refer to “repowering” projects, in the declaratory ruling, ORES found that any increase in capacity brings a renewable generating facility under its jurisdiction. Specifically, it disagreed with AES that “increase in capacity” as used in the statute should be interpreted as an increase in facility output or that an existing facility would have to add more than 25 MW in capacity to trigger state agency jurisdiction, as was the case under Article 10. Also, ORES grouped all six wind farms together in considering this increase, noting that AES was proposing a “facility wide programmatic repowering” resulting in an increase of 49 MW in capacity across all six wind farms. 

ORES distinguished the proposed repowering, which is intended to substantially increase the efficiency of the facilities and extend their life expectancy, from regular, customary, or standard repairs and maintenance meant to keep facilities operating in their present condition. As such, ORES found that the exemption for these “repair and replacement” activities is inapplicable to AES’s proposed repowering, based on the proposed increase in capacity and the fact that different turbine models would be utilized.

Similarly, the declaratory ruling also found the exemption for facilities permitted prior to the enactment of Section 94-c inapplicable. ORES interpreted this exemption as being intended to allow for the construction and operation of existing projects under the terms of their current permits without subjecting them to a second permitting process. ORES indicated that AES’s existing permits do not address repowering and the repowering would otherwise require permit amendments and new approvals under SEQRA.

Finally, ORES seemed to indicate in the conclusion of the ruling that the repowering permit applications under Section 94-c could potentially be considered as modifications or amendments to the existing permits for the wind farms, which would then include an evaluation by ORES as to whether the permit applications would constitute a minor modification or a major modification, for which a hearing would be required.
ORES also noted that the Section 94-c regulations allow for the tailoring of the siting permit application review process by allowing for the omission of application exhibits that are not relevant to a particular facility’s technology or proposed location and by allowing an applicant to request site-specific conditions. The declaratory ruling encouraged applicants proposing these types of repowering projects to engage in pre-application consultations with ORES staff to avoid the development of unnecessary or irrelevant application materials and evaluate only relevant impacts, including, but not limited to, impacts related to wildlife, visual, noise, and shadow flicker.

If you have any questions regarding the content of this alert, please contact Brenda Colella, Regulatory Practice Group leader, at; David Solimeno, associate, at; or another member of the firm’s Regulatory Practice Area.

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