N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 1100-1.3

Current through Register Vol. 46, No. 53, December 31, 2024

Section 1100-1.3 - Pre-application procedures

(a)Consultation with Local Agencies. No less than sixty (60) days before the date on which an applicant files an application, or files a transfer application other than for a pending article 10 facility for which the article 10 application has been deemed complete, the applicant shall conduct pre-application meeting(s) with the chief executive officer of the municipality(ies) in which the proposed facility will be located and any local agencies of such municipalities identified by the chief executive officer. During such pre-application meeting(s), the applicant shall provide:

(1) A brief description of the proposed facility and its environmental setting;

(2) A map of the proposed facility showing project components and regulatory boundaries as it pertains to substantive law relevant to the proposed facility;

(3) A summary of the substantive provisions of local laws applicable to the construction, operation, maintenance, and decommissioning of the proposed facility;

(4) An identification of such substantive local law provisions for which the applicant will request that the Office make a finding that compliance therewith would be unreasonably burdensome;

(5) An explanation of all efforts by the applicant to comply with such substantive local law provisions through the consideration of design changes to the proposed facility, orotherwise;

(6) Any potential impacts of the facility for which consultation with the municipality(ies) is required to inform the preparation of the exhibits to the application (including, but not necessarily limited to, transportation and visual resources);

(7) A designated contact person, with telephone number, email address and mailing address, from whom information will be available on a going-forward basis, as well as a proposed project website to disseminate information to the public; and

(8) An anticipated application date and information regarding the future availability of local agency account funds, citing to the requirements set forth in Subpart 1100-5 of this Part, including, but not limited to, the requirement that any local agency or potential community intervenor shall submit a request for initial funding within thirty (30) days of the date of application filing and that such request be made to the Office of Renewable Energy Siting and Electric Transmission, at the Albany, New York office, Attention: Request for Local Agency Account Funding.

(b)Meeting with community members. No less than sixty (60) days before the date on which an applicant files an application, and following the meeting(s) held pursuant to subdivision (a) of this section, the applicant shall conduct at least one meeting for community members who may be adversely impacted by the siting of the facility. The purpose of the meeting is to educate the public about the proposed project, including the anticipated application date and information regarding the future availability of local agency account funds, citing to the requirements set forth in Subpart 1100-5 of this Part, including, but not limited to, the requirement that any local agency or potential community intervenor shall submit a request for initial funding within thirty (30) days of the date of application filing and that such request be made to the Office of Renewable Energy Siting and Electric Transmission, at the Albany, New York office, Attention: Request for Local Agency Account Funding. The applicant shall provide notice of the meeting no sooner than thirty (30) days and no later than fourteen (14) days prior to the meeting in accordance with the publication requirements of section 1100-1.6(c) of this Part.

(c) The applicant shall provide as part of the application copies of transcripts (if any), presentation materials, and a summary of questions raised and responses provided during the pre-application meeting(s). In the event the applicant is unable to secure a meeting with a municipality, the application shall contain a detailed explanation of all of applicant's best efforts and reasonable attempts to secure such meeting, including, but not limited to, all written communications between the applicant and the municipality.

(d) At least sixty (60) days before the date an applicant files an application, the applicant shall publish a notice of intent to file an application in accordance with the publication requirements of section 1100- 1.6(c) of this Part and provide a copy thereof to the Office, and to all local agencies in attendance at the pre-application meeting. The notice of intent to file an application may be included as part of the notice requirement of subdivision (b) of this section. The notice shall contain, at a minimum, the following:

(1) A brief summary of the proposed facility and location;

(2) A designated contact person, with telephone number, email address and mailing address, from whom information will be available on a going-forward basis, as well as a proposed project website to disseminate information to the public; and

(3) A statement of future availability of local agency account funds, citing to the requirements set forth in Subpart 1100-5 of this Part, including, but not limited to, the requirement that any local agency or potential community intervenor shall submit a request for initial funding within thirty (30) days of the date of application filing and that such request be made to the Office of Renewable Energy Siting and Electric Transmission, at the Albany, New York office, Attention: Request for Local Agency Account Funding.

(e)Wetland delineation.

(1) At the earliest point possible in the applicant's preliminary project planning, the applicant shall conduct a wetland delineation to determine the boundaries of all federal, state and locally regulated wetlands present on the facility site and within one hundred (100) feet of areas to be disturbed by construction, including the interconnections, access roadways, and utility tie-ins. For adjacent properties without accessibility, wetland delineation surveys shall be based on remote sensing data, interpretation of existing wetland and soils mapping, observations from adjacent accessible properties, and current and historical aerial imagery.

(2) The applicant shall submit to the Office, with a copy to NYSDEC, a draft wetland delineation report summarizing the wetland characteristics and Cowardin classifications of all federal, state, and locally regulated wetlands, the wetland class consistent with 6 NYCRR section 664.1 (if applicable), a summary of the field data collected, and an ArcGIS compliant shapefiles or geo-database of the field delineated wetland features.

(3) The applicant shall consult with the Office, and as necessary with the NYSDEC, to determine the status of the delineated state-regulated wetlands and the NYSDEC may conduct a site visit at the request of the Office to assist in determining which wetlands are state-regulated pursuant to ECL article 24, and to advise with respect to potential impacts to jurisdictional wetlands.

(4) At the request of the Office, the NYSDEC shall review the draft wetland delineation and advise the Office if the proposed facility components could impact regulated wetlands. The Office, with a copy to the NYSDEC, shall provide a final approved jurisdictional determination to the applicant within sixty (60) days of receipt of the applicant's draft wetland delineation report, provided that weather and ground conditions are suitable for making such a determination. In the event that weather or ground conditions prevent the Office from making a determination within sixty (60) days, the Office shall provide a jurisdictional determination to the applicant as soon as practicable, following suitable weather and ground conditions.

(5) The applicant shall provide the approved wetland delineation and associated report in the application as required in section 1100-2.15 of this Part.

(f)Water Resources and Aquatic Ecology.

(1) At the earliest point possible in the applicant's preliminary project planning, the applicant shall conduct a surface water delineation to identify the location of all federal, state waters regulated pursuant to ECL article 15, and locally regulated surface waters present on the facility site and within one hundred (100) feet of areas to be disturbed by construction, including the interconnections. The surface water map shall indicate the jurisdictional boundaries of all state waterbodies regulated pursuant to ECL article 15. For adjacent properties without accessibility, waterbody delineations may be estimated using remote sensing data, interpretation of wetlands and soils mapping, topographic maps, observations from adjacent accessible properties and aerial imagery.

(2) The applicant shall submit a draft surface water delineation report to the Office, with a copy to the NYSDEC, consisting of a description of the waterbody characteristics, NYS water quality classification of mapped features, the Fisheries Index Number (FIN) or Waterbody Index Number (WIN), a description of stream flow (perennial, intermittent, or ephemeral), summary of the field data collected, and an ArcGIS compliant shapefile(s) or geo-database of the location of streams and other waterbodies.

(3) The applicant shall consult with the Office, and as necessary with the NYSDEC, to determine which waters are state-regulated pursuant to ECL article 15.

(4) At the request of the Office, the NYSDEC shall review the draft delineation and advise the Office if any of the proposed facility components could impact state-regulated waterbodies pursuant to ECL article 15. The Office, with a copy to the NYSDEC, shall provide a final approved jurisdictional determination to the applicant within sixty (60) days of receipt of the applicant's draft surface water delineation report, provided that weather and ground conditions are suitable for making such a determination. In the event that weather or ground conditions prevent the Office from making a determination within sixty (60) days, the Office shall provide a determination to the applicant as soon as practicable, following suitable weather and ground conditions.

(5) The applicant shall provide an approved surface water delineation report in the application as required by section 1100-2.14 of this Part.

(g)NYS threatened or endangered species.

(1) At the earliest point possible in the applicant's preliminary project planning, the applicant shall conduct a wildlife site characterization summarizing existing public information on bird, bat, and other species, including, but not limited to, New York's Environmental Assessment Form (EAF) Mapper, New York Natural Heritage Program (NYNHP), USFWS iPaC and ECOs databases, New York's Environmental Resource Mapper, Nature Explorer, and Biodiversity and Wind Siting Mapping Tool, eBird, Audubon Christmas Bird Counts, United States Geological Survey (USGS) breeding bird surveys, the current New York Breeding Bird Atlas III program, New York State Ornithological Association, local birding organizations, Bat Conservation International's database on bat species ranges, NYSDEC bat information. With respect to NYS threatened or endangered species or species of special concern, the wildlife site characterization shall include:

(i) Species documented at the proposed facility, access roads, interconnections, connecting lines, from available data sources. A subset of NYS threatened or endangered species identified within the last five (5) years shall be provided.

(ii) For each listed animal species documented from available data sources, providean evaluation of current habitat suitability for those species at the project site.

(iii) Landscape features and resources of potential concern within five (5) miles of the facility that may function to funnel or concentrate birds and bats, with a focus on NYS threatened or endangered species, during migration or for feeding, breeding, wintering, or roosting activities, such as national wildlife refuges, wildlife management areas, grassland focus areas, core forest blocks (contiguous areas one hundred fifty (150) acres or larger), Audubon Important Bird Areas, high elevation mountaintops, prominent ridgelines, forested riparian areas, known hibernacula, records of caves and mines, or other significant habitat areas.

(iv) Geographical, topographical, and other physical features within five (5) miles of the facility, interconnections, connecting lines, and access roads.

(v) National Wetlands Inventory (NWI) and NYSDEC mapped wetlands, streams, waterbodies, state forests, parks, land use, and other available information relevant to siting the facility.

(vi) A review of National Audubon Society climate change modeling for listed bird species documented in the wildlife site characterization, and review of other climate change models relevant to listed bird species and other wildlife species documented at the facility site, as available.

(2) The applicant shall provide the results of the wildlife site characterization and project details (including as much information available at the time for facility component plans, preferably in GIS format) to the Office and the NYSDEC. A meeting shall be held by these agencies and the applicant within four (4) weeks of delivery of the draft wildlife site characterization, unless otherwise agreed upon by the applicant and the Office. At this meeting, the agencies shall:

(i) Provide feedback as to the content and conclusions of the wildlife characterization study.

(ii) Enter into a non-disclosure agreement with the applicant, if necessary, and provide all additional data points beyond those identified in the draft site characterization.

(iii) Indicate whether the agencies consider occupied habitat of NYS threatened or endangered species to be present on the facility site based on existing information and, if so, indicate where such is located.

(iv) Recommend habitat assessments (including applicant to provide information regarding recent and planned future land uses) and/or field surveys that can be completed in the appropriate seasonal windows within one year.

(3) If the applicant conducts a habitat assessment and believes suitable habitat for a given species is no longer present at the site, it shall provide a copy of the assessment report to the agencies for review and a determination as to whether surveys shall be required.

(4) If surveys are recommended, the applicant shall develop a pre-construction study work plan in consultation with the Office and the NYSDEC. All surveys should follow existing protocols.

(5) The applicant shall conduct surveys and provide draft reports and relevant GIS shape files to the Office and the NYSDEC within six (6) weeks of the completion of each study. If sightings of NYS threatened or endangered species were documented during the surveys, then a summary of the sightings with detailed location information shall be provided to the agencies in advance of the draft report and within three (3) weeks of the completion of each study.

(6) Within thirty (30) days of submittal of the draft survey reports, the agencies and the applicant shall review the results of the habitat assessment(s) and survey(s) and the current facility design. The agencies and the applicant shall also discuss the requirements for the Net Conservation Benefit Plan, if applicable.

(7) Within thirty (30) days of such conference pursuant to paragraph (6) of this subdivision, the Office shall provide its draft determination regarding whether occupied habitat for one or more NYS threatened or endangered species exists within the facility site, the boundary of the occupied habitat, whether de minimis levels as provided in section 1100-2.13 of this Part might be attainable for grassland birds, and, if applicable, the amount of mitigation funding that may be necessary if impacts cannot be avoided or mitigated.

(8) The applicant shall provide the approved wildlife site characterization report, habitat assessment and/or survey reports, and Net Conservation Benefit Plan (if required) in the siting permit application as provided in section 1100-2.13 of this Part.

(h)Archaeological Resources Consultation.

(1) At the earliest point possible in the applicant's preliminary project planning, if any portion of the project impact area (PIA) falls within an area of archaeological sensitivity due to its inclusion on the statewide archaeological inventory map, the applicant shall conduct a Phase IA archeological/cultural resources study for the PIA.

(2) The applicant shall submit the results of the Phase IA study to the Office. Within sixty (60) days of applicant's submittal of the Phase IA results, the Office, in consultation with OPRHP, shall inform the applicant as to whether a Phase IB field study will be required. The Office may schedule a meeting with the applicant and OPRHP to discuss the scope and content of the Phase IB field study.

(3) If warranted by the Phase I studies, the applicant shall conduct a Phase II site evaluation study to assess the boundaries, integrity and significance of cultural resources identified in Phase I studies.

(4) The applicant shall provide the Phase IA, IB and Phase II, if applicable, in the siting permit application as required by section 1100-2.10 of this Part.

(i)Consultation with the Office.

(1) Applicants seeking a siting permit for a major renewable energy facility other than a solar facility or a wind facility shall consult with the Office at least one (1) year prior to submitting an application in order to determine which exhibits the Office will require, as well as any sitespecific permit application requirements.

(2) Any applicant may request a pre-application meeting with the Office, which request shall be granted or denied at the discretion of the Office.

N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 1100-1.3

Transferred from 900-1.3 New York State Register July 17, 2024/Volume XLVI, Issue 29, eff. 6/26/2024