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SECTION 94-C
Major renewable energy development program
Executive (EXC) CHAPTER 18, ARTICLE 6
* § 94-c. Major renewable energy development program. 1. Purpose. It
is the purpose of this section to consolidate the environmental review
and permitting of major renewable energy facilities in this state and to
provide a single forum in which the office of renewable energy siting
created by this section may undertake a coordinated and timely review of
proposed major renewable energy facilities to meet the state's renewable
energy goals while ensuring the protection of the environment and
consideration of all pertinent social, economic and environmental
factors in the decision to permit such facilities as more specifically
provided in this section.

2. Definitions. (a) "Executive director" or "director" shall mean the
executive director of the office of renewable energy siting.

(b) "CLCPA targets" shall mean the public policies established in the
climate leadership and community protection act enacted in chapter one
hundred six of the laws of two thousand nineteen, including the
requirement that a minimum of seventy percent of the statewide electric
generation be produced by renewable energy systems by two thousand
thirty, that by the year two thousand forty the statewide electrical
demand system will generate zero emissions and the procurement of at
least nine gigawatts of offshore wind electricity generation by two
thousand thirty-five, six gigawatts of photovoltaic solar generation by
two thousand twenty-five and to support three gigawatts of statewide
energy storage capacity by two thousand thirty.

(c) "Local agency account" or "account" shall mean the account
established by the office pursuant to subdivision seven of this section.

(d) "Local agency" means any local agency, board, district, commission
or governing body, including any city, county, and other political
subdivision of the state.

(e) "Municipality" shall mean a county, city, town, or village.

(f) "Office" shall mean the office of renewable energy siting
established pursuant to this section.

(g) "Department" shall mean the department of state.

(h) "Major renewable energy facility" means any renewable energy
system, as such term is defined in section sixty-six-p of the public
service law as added by chapter one hundred six of the laws of two
thousand nineteen, with a nameplate generating capacity of twenty-five
thousand kilowatts or more, and any co-located system storing energy
generated from such a renewable energy system prior to delivering it to
the bulk transmission system, including all associated appurtenances to
electric plants as defined under section two of the public service law,
including electric transmission facilities less than ten miles in length
in order to provide access to load and to integrate such facilities into
the state's bulk electric transmission system.

(i) "Siting permit" shall mean the major renewable energy facility
siting permit established pursuant to this section and the rules and
regulations promulgated by the office.

(j) "Dormant electric generating site" shall mean a site at which one
or more electric generating facilities produced electricity but has
permanently ceased operating.

3. Office of renewable energy siting; responsibilities. (a) There is
hereby established within the department an office of renewable energy
siting which is charged with accepting applications and evaluating,
issuing, amending, approving the assignment and/or transfer of siting
permits. The office shall exercise its authority by and through the
executive director.

(b) The office shall within one year of the effective date of this
section establish a set of uniform standards and conditions for the
siting, design, construction and operation of each type of major
renewable energy facility relevant to issues that are common for
particular classes and categories of major renewable energy facilities,
in consultation with the New York state energy research and development
authority, the department of environmental conservation, the department
of public service, the department of agriculture and markets, and other
relevant state agencies and authorities with subject matter expertise.
Prior to adoption of uniform standards and conditions, the office shall
hold four public hearings in different regions of the state to solicit
comment from municipal, or political subdivisions, and the public on
proposed uniform standards and conditions to avoid, minimize or mitigate
potential adverse environmental impacts from the siting, design,
construction and operation of a major renewable energy facility.

(c) The uniform standards and conditions established pursuant to this
section shall be designed to avoid or minimize, to the maximum extent
practicable, any potential significant adverse environmental impacts
related to the siting, design, construction and operation of a major
renewable energy facility. Such uniform standards and conditions shall
apply to those environmental impacts the office determines are common to
each type of major renewable energy facility.

(d) In its review of an application for a permit to develop a major
renewable energy facility, the office, in consultation with the
department of environmental conservation, shall identify those
site-specific environmental impacts, if any, that may be caused or
contributed to by a specific proposed major renewable energy facility
and are unable to be addressed by the uniform standards and conditions.
The office shall draft in consultation with the department of
environmental conservation site specific permit terms and conditions for
such impacts, including provisions for the avoidance or mitigation
thereof, taking into account the CLCPA targets and the environmental
benefits of the proposed major renewable energy facility, provided,
however, that the office shall require that the application of uniform
standards and conditions and site-specific conditions shall achieve a
net conservation benefit to any impacted endangered and threatened
species.

(e) To the extent that environmental impacts are not completely
addressed by uniform standards and conditions and site-specific permit
conditions proposed by the office, and the office determines that
mitigation of such impacts may be achieved by off-site mitigation, the
office may require payment of a fee by the applicant to achieve such
off-site mitigation. If the office determines, in consultation with the
department of environmental conservation, that mitigation of impacts to
endangered or threatened species that achieves a net conservation
benefit can be achieved by off-site mitigation, the amount to be paid
for such off-site mitigation shall be set forth in the final siting
permit. The office may require payment of funds sufficient to implement
such off-site mitigation into the endangered and threatened species
mitigation fund established pursuant to section ninety-nine-hh of the
state finance law.

(f) The office, by and through the executive director, shall be
authorized to conduct hearings and dispute resolution proceedings, issue
permits, and adopt such rules, regulations and procedures as may be
necessary, convenient, or desirable to effectuate the purposes of this
section.

(g) The office shall within one year of the effective date of this
section promulgate rules and regulations with respect to all necessary
requirements to implement the siting permit program established in this
section and promulgate modifications to such rules and regulations as it
deems necessary; provided that the office shall promulgate regulations
requiring the service of applications on affected municipalities and
political subdivisions simultaneously with submission of the application
to the office.

(h) At the request of the office, all other state agencies and
authorities are hereby authorized to provide support and render services
to the office within their respective functions.

(i) Notwithstanding any other provision of law, rule, or regulation to
the contrary and consistent with appropriations therefor, employees of
any state agency who are necessary to the functions of the office and
who may be substantially engaged in the performance of its functions
shall be transferred to the office in accordance with the provisions of
section seventy of the civil service law. Employees transferred pursuant
to this section shall be transferred without further examination or
qualification and shall retain their respective civil service
classifications. Nothing set forth in this subdivision shall be
construed to impede, infringe, or diminish the rights and benefits that
accrue to employees through collective bargaining agreements, impact or
change an employee's membership in a bargaining unit, or otherwise
diminish the integrity of the collective bargaining relationship.

4. Applicability. (a) On and after the effective date of this section,
no person shall commence the preparation of a site for, or begin the
construction of, a major renewable energy facility in the state, or
increase the capacity of an existing major renewable energy facility,
without having first obtained a siting permit pursuant to this section.
Any such major renewable energy facility with respect to which a siting
permit is issued shall not thereafter be built, maintained, or operated
except in conformity with such siting permit and any terms, limitations,
or conditions contained therein, provided that nothing in this
subdivision shall exempt such major renewable energy facility from
compliance with federal laws and regulations.

(b) A siting permit issued by the office may be transferred or
assigned, subject to the prior written approval of the office, to a
person that agrees to comply with the terms, limitations and conditions
contained in such siting permit.

(c) The office or a permittee may initiate an amendment to a siting
permit under this section. An amendment initiated by the office or
permittee that is likely to result in any material increase in any
environmental impact or involves a substantial change to the terms or
conditions of a siting permit shall comply with the public notice and
hearing requirements of this section.

(d) Any hearings or dispute resolution proceedings initiated under
this section or pursuant to rules or regulations promulgated pursuant to
this section may be conducted by the executive director or any person to
whom the executive director shall delegate the power and authority to
conduct such hearings or proceedings in the name of the office at any
time and place.

(e) This section shall not apply:

(i) to a major renewable energy facility, or any portion thereof, over
which any agency or department of the federal government has exclusive
siting jurisdiction, or has siting jurisdiction concurrent with that of
the state and has exercised such jurisdiction to the exclusion of
regulation of the facility by the state; provided, however, nothing
herein shall be construed to expand federal jurisdiction;

(ii) to normal repairs, maintenance, replacements, non-material
modifications and improvements of a major renewable energy facility,
whenever built, which are performed in the ordinary course of business
and which do not constitute a violation of any applicable existing
permit;

(iii) to a major renewable energy facility if, on or before the
effective date of this section, an application has been made or granted
for a license, permit, certificate, consent or approval from any
federal, state or local commission, agency, board or regulatory body,
including the submission of a pre-application public involvement program
plan under article ten of the public service law and its implementing
regulations, in which application the location of the major renewable
energy facility has been designated by the applicant, except in the case
of a person who elects to be subject to this section as authorized by
paragraph e of subdivision four of section one hundred sixty-two of the
public service law.

(f) Any person intending to construct a major renewable energy
facility excluded from this section pursuant to paragraph (ii) or (iii)
of paragraph (e) of this subdivision may elect to become subject to the
provisions of this section by filing an application for a siting permit.
This section shall thereafter apply to each major renewable energy
facility identified in such notice from the date of its receipt by the
office. With respect to such major renewable energy facilities, the
rules and regulations promulgated pursuant to this section shall set
forth an expedited permitting process to account for matters and issues
already presented and resolved in relevant alternative permitting
proceedings.

(i) With respect to a major renewable energy facility for which an
application was previously reviewed pursuant to article ten of the
public service law, and for which a completeness determination had
already been issued at the time an application was filed pursuant to
this section, such application shall be considered complete pursuant to
this section upon filing.

(ii) With respect to a major renewable energy facility for which an
application was previously reviewed pursuant to article ten of the
public service law, and for which a completeness determination had not
been issued at the time the application was filed pursuant to this
section, the sixty-day time period provided in paragraph (b) of
subdivision five of this section shall commence upon filing.

(g) Any person intending to construct a facility that is a renewable
energy system, as such term is defined in section sixty-six-p of the
public service law as added by chapter one hundred six of the laws of
two thousand nineteen, with a nameplate capacity of at least twenty
thousand but less than twenty-five thousand kilowatts, may apply to
become subject to the provisions of this section by filing an
application for a siting permit. Upon submission of such application,
the subject renewable energy facility shall be treated as a "major
renewable energy facility" exclusively for purposes of permitting under
this section.

5. Application, municipal notice and review. (a) Until the office
establishes uniform standards and conditions required by subdivision
three of this section and promulgates regulations specifying the content
of an application for a siting permit, an application for a siting
permit submitted to the office shall conform substantially to the form
and content of an application required by section one hundred sixty-four
of the public service law.

(b) Notwithstanding any law to the contrary, the office shall, within
sixty days of its receipt of an application for a siting permit
determine whether the application is complete and notify the applicant
of its determination. If the office does not deem the application
complete, the office shall set forth in writing delivered to the
applicant the reasons why it has determined the application to be
incomplete. If the office fails to make a determination within the
foregoing sixty-day time period, the application shall be deemed
complete; provided, however, that the applicant may consent to an
extension of the sixty-day time period for determining application
completeness. Provided, further, that no application may be complete
without proof of consultation with the municipality or political
subdivision where the project is proposed to be located, or an agency
thereof, prior to submission of an application to the office, related to
procedural and substantive requirements of local law.

(c) (i) No later than sixty days following the date upon which an
application has been deemed complete, and following consultation with
any relevant state agency or authority, the office shall publish for
public comment draft permit conditions prepared by the office, which
comment period shall be for a minimum of sixty days from public notice
thereof. Such public notice shall include, at a minimum, written notice
to the municipality or political subdivision in which the major
renewable energy facility is proposed to be located; publication in a
newspaper or in electronic form, having general circulation in such
municipality or political subdivision; and posted on the office's
website.

(ii) For any municipality, political subdivision or an agency thereof
that has received notice of the filing of an application, pursuant to
regulations promulgated in accordance with this section, the
municipality or political subdivision or agency thereof shall within the
timeframes established by this subdivision submit a statement to the
office indicating whether the proposed facility is designed to be sited,
constructed and operated in compliance with applicable local laws and
regulations, if any, concerning the environment, or public health and
safety. In the event that a municipality, political subdivision or an
agency thereof submits a statement to the office that the proposed
facility is not designed to be sited, constructed or operated in
compliance with local laws and regulations and the office determines not
to hold an adjudicatory hearing on the application, the department shall
hold non-adjudicatory public hearing in the affected municipality or
political subdivision.

(d) If public comment on a draft permit condition published by the
office pursuant to this subdivision, including comments provided by a
municipality or political subdivision or agency thereof, or members of
the public raises a substantive and significant issue, as defined in
regulations adopted pursuant to this section, that requires
adjudication, the office shall promptly fix a date for an adjudicatory
hearing to hear arguments and consider evidence with respect thereto.

(e) Following the expiration of the public comment period set forth in
this subdivision, or following the conclusion of a hearing undertaken
pursuant to this subdivision, the office shall, in the case of a public
comment period, issue a written summary of public comment and an
assessment of comments received, and in the case of an adjudicatory
hearing, the executive officer or any person to whom the executive
director has delegated such authority, shall issue a final written
hearing report. A final siting permit may only be issued if the office
makes a finding that the proposed project, together with any applicable
uniform and site-specific standards and conditions would comply with
applicable laws and regulations. In making this determination, the
office may elect not to apply, in whole or in part, any local law or
ordinance which would otherwise be applicable if it makes a finding
that, as applied to the proposed major renewable energy facility, it is
unreasonably burdensome in view of the CLCPA targets and the
environmental benefits of the proposed major renewable energy facility.

(f) Notwithstanding any other deadline made applicable by this
section, the office shall make a final decision on a siting permit for
any major renewable energy project within one year from the date the
application was deemed complete, or within six months from the date the
application was deemed complete if the major renewable energy facility
is proposed to be sited on an existing or abandoned commercial use,
including without limitation, brownfields, landfills, former commercial
or industrial sites, dormant electric generating sites, and abandoned or
otherwise underutilized sites, as further defined by the regulations
promulgated by this section. Unless the office and the applicant have
agreed to an extension, with such extension limited to thirty days, and
if a final siting permit decision has not been made by the office within
such time period, then such siting permit shall be deemed to have been
automatically granted for all purposes set forth in this section and all
uniform conditions or site specific permit conditions issued for public
comment shall constitute enforceable provisions of the siting permit.
The final siting permit shall include a provision requiring the
permittee to provide a host community benefit, which may be a host
community benefit as determined by the public service commission
pursuant to section eight of the chapter of the laws of two thousand
twenty that added this section or such other project as determined by
the office or as subsequently agreed to between the applicant and the
host community.

(g) Any party aggrieved by the issuance or denial of a permit under
this section may seek judicial review of such decision as provided in
this paragraph. (i) A judicial proceeding shall be brought in the
appellate division of the supreme court of the state of New York in the
judicial department embracing the county wherein the facility is to be
located or, if the application is denied, the county wherein the
applicant has proposed to locate the facility. Such proceeding shall be
initiated by the filing of a petition in such court within ninety days
after the issuance of a final decision by the office together with proof
of service of a demand on the office to file with said court a copy of a
written transcript of the record of the proceeding and a copy of the
office's decision and opinion. The office's copy of said transcript,
decision and opinion, shall be available at all reasonable times to all
parties for examination without cost. Upon receipt of such petition and
demand the office shall forthwith deliver to the court a copy of the
record and a copy of the office's decision and opinion. Thereupon, the
court shall have jurisdiction of the proceeding and shall have the power
to grant such relief as it deems just and proper, and to make and enter
an order enforcing, modifying and enforcing as so modified, remanding
for further specific evidence or findings or setting aside in whole or
in part such decision. The appeal shall be heard on the record, without
requirement of reproduction, and upon briefs to the court. The findings
of fact on which such decision is based shall be conclusive if supported
by substantial evidence on the record considered as a whole and matters
of judicial notice set forth in the opinion. The jurisdiction of the
appellate division of the supreme court shall be exclusive and its
judgment and order shall be final, subject to review by the court of
appeals in the same manner and form and with the same effect as provided
for appeals in a special proceeding. All such proceedings shall be heard
and determined by the appellate division of the supreme court and by the
court of appeals as expeditiously as possible and with lawful precedence
over all other matters.

(ii) The grounds for and scope of review of the court shall be limited
to whether the decision and opinion of the office are:

(A) In conformity with the constitution, laws and regulations of the
state and the United States;

(B) Supported by substantial evidence in the record and matters of
judicial notice properly considered and applied in the opinion;

(C) Within the office's statutory jurisdiction or authority;

(D) Made in accordance with procedures set forth in this section or
established by rule or regulation pursuant to this section;

(E) Arbitrary, capricious or an abuse of discretion; or

(F) Made pursuant to a process that afforded meaningful involvement of
citizens affected by the facility regardless of age, race, color,
national origin and income.

(iii) Except as herein provided article seventy-eight of the civil
practice law and rules shall apply to appeals taken hereunder.

6. Powers of municipalities and state agencies and authorities; scope
of section. (a) Notwithstanding any other provision of law, including
without limitation article eight of the environmental conservation law
and article seven of the public service law, no other state agency,
department or authority, or any municipality or political subdivision or
any agency thereof may, except as expressly authorized under this
section or the rules and regulations promulgated under this section,
require any approval, consent, permit, certificate, contract, agreement,
or other condition for the development, design, construction, operation,
or decommissioning of a major renewable energy facility with respect to
which an application for a siting permit has been filed, provided in the
case of a municipality, political subdivision or an agency thereof, such
entity has received notice of the filing of the application therefor.
Notwithstanding the foregoing, the department of environmental
conservation shall be the permitting agency for permits issued pursuant
to federally delegated or federally approved programs.

(b) This section shall not impair or abrogate any federal, state or
local labor laws or any otherwise applicable state law for the
protection of employees engaged in the construction and operation of a
major renewable energy facility.

(c) The department of public service or the public service commission
shall monitor, enforce and administer compliance with any terms and
conditions set forth in a permit issued pursuant to this section and in
doing so may use and rely on authority otherwise available under the
public service law.

7. Fees; local agency account. (a) Each application for a siting
permit shall be accompanied by a fee in an amount equal to one thousand
dollars for each thousand kilowatts of capacity of the proposed major
renewable energy facility, to be deposited in an account to be known as
the local agency account established for the benefit of local agencies
and community intervenors by the New York state energy research and
development authority and maintained in a segregated account in the
custody of the commissioner of taxation and finance. The office may
update the fee periodically solely to account for inflation. The
proceeds of such account shall be disbursed by the office, in accordance
with eligibility and procedures established by the rules and regulations
promulgated by the office pursuant to this section, for the
participation of local agencies and community intervenors in public
comment periods or hearing procedures established by this section,
including the rules and regulations promulgated hereto; provided that
fees must be disbursed for municipalities, political subdivisions or an
agency thereof, to determine whether a proposed facility is designed to
be sited, constructed and operated in compliance with the applicable
local laws and regulations.

(b) All funds so held by the New York state energy research and
development authority shall be subject to an annual independent audit as
part of such authority's audited financial statements, and such
authority shall prepare an annual report summarizing account balances
and activities for each fiscal year ending March thirty-first and
provide such report to the office no later than ninety days after
commencement of such fiscal year and post on the authority's website.

(c) With respect to a person who has filed an application for a siting
permit pursuant to subdivision four of this section, any amounts held in
an intervenor account established pursuant to articles seven and ten of
the public service law shall be applied to the intervenor account
established by this subdivision.

(d) In addition to the fees established pursuant to paragraph (a) of
this subdivision, the office, pursuant to regulations adopted pursuant
to this section, may assess a fee for the purpose of recovering costs
the office incurs.

* NB Repealed December 31, 2030

8. Farmland protection working group. (a) There is hereby created in
the executive department a farmland protection working group consisting
of appropriate stakeholders, including but not limited to:

(i) the commissioner of the department of agriculture and markets;

(ii) the commissioner of the department of environmental conservation;

(iii) the executive director of the office;

(iv) the commissioner of the department of public service;

(v) the president of the New York state energy research and
development authority;

(vi) local government officials or representatives from municipal
organizations representing towns, villages, and counties;

(vii) representatives from at least two county agricultural and
farmland protection boards.

(b) The working group shall, no later than one year after the
effective date of this subdivision, recommend strategies to encourage
and facilitate input from municipalities in the siting process and to
develop recommendations that include approaches to recognize the value
of viable agricultural land and methods to minimize adverse impacts to
any such land resulting from the siting of major renewable energy
facilities.

(c) The working group, on call of the commissioner of the department
of agriculture and markets, shall meet at least three times each year
and at such other times as may be necessary.