Hello to Save Ontario Shores supporters,
This note is to update you on a very important change that is happening to the process for giving permits to industrial renewable energy projects in New York. We will give you some background and then update you on what is happening now. We know this is very lengthy but we encourage you to read through the newsletter because things are about to get a lot easier for industrial renewables developers and harder for towns!
History of the Renewables Siting Process: Lighthouse Wind and Article 10
SOS has been fighting the Lighthouse Wind project for almost six years. It started when Apex Clean Energy filed documents under the New York State siting process called “Article 10” which takes place under the Department of Public Service, the agency that gives permits to all electrical generation projects.
We complained a lot about the process as expensive and complicated. However, this process did enable us to make early comments and critique the documents that Apex submitted under Article 10.
Perhaps some of you remember the “Preliminary Scoping Statement” (PSS), a document with hundreds of pages and many exhibits that Apex submitted in the Fall of 2015. An information night was held in Somerset in December 2015 and many of you attended and engaged in a process to comment on the Apex PSS. SOS had an extensive website that helped people break down the long document into the exhibit parts and submit very impressive and substantial comments. Hundreds of comments were submitted during the comment period on the PSS which ended about mid-January 2016. Those comments are still available for viewing on the DPS Lighthouse Wind website.
During this PSS comment period, SOS, the Town of Yates and the Town of Somerset received funding to hire attorneys and experts to review the Apex PSS documents. Many, many issues, concerns and impacts were raised by experts and citizens in this early pre-application process under Article 10.
The Lighthouse Wind project never proceeded past the PSS documents. Apex did not submit an application for the project. They refuse to formally withdraw the project from the Article 10 process but they closed their local office. Unfortunately, they did not return to Virginia. Instead they moved to the Town of Barre where they are pushing hard for a project with even taller turbines.
What is changing about Siting Industrial Renewables in New York State and Why?
Over the last six years some industrial wind projects did receive approvals under the Article 10 process. The average approval takes about three and a half years. There are documents filed, extensive comment periods, -reports from experts, a hearing in front of administrative law judges and finally a decision by the Article 10 Siting Board, made up of the heads of five state agencies and two local citizens. Then there is an extensive process for the developer to follow through on all the things the Siting Board tells them they have to do before they build. And there is a centralized website where all documents are filed for each project.
Under Article 10 the Siting Board has the authority to waive local laws in some situations but the Board encouraged developers to work with towns to make changes to the laws. The Siting Board clearly did not want to be in the business of waiving many town laws.
Those who want to build projects more quickly, including the developers, are frustrated by this lengthy timeline and so have lobbied and won passage of two laws to speed the process.
In 2019 a Climate Act was passed that increased the renewable energy production goals for the state from 50% by 2030 to 70% by 2030. The state plan to meet this target is to rapidly build industrial renewable projects (onshore wind, offshore wind and solar). This Act was passed without any integrated, science-based plan for how to make this happen. All they could come up with was a frantic push for industrial renewables to be built rapidly on upstate land.
In April 2020, in the midst of the pandemic, the legislature passed as part of the budget the Accelerated Renewable Energy Growth and Community Benefit Act. This Act took the permit process for industrial renewable projects away from the Department of Public Service and established a new state office, the Office of Renewable Energy Siting (ORES). It established new rapid and automatic timelines for project reviews, reduced time for public comment, and provided the office’s director with authority to waive local laws.
SOS, other citizen and environmental groups and town and county officials (including our own town and county leaders!) spoke out against some of the most egregious parts of the Accelerated Renewables Act and some items were modified in the final bill. But the Act represents a huge burden on rural communities and includes substantial removal of citizen and local town/county participation and a further eroding of local control over zoning and safety issues.
What is happening now and why are we discussing this?
The Office of Renewable Energy Siting (ORES) was established and the Deputy Executive Director, Houtan Moaveni, was named in June 2020.
This new office removes the Department of Public Service from siting large scale renewables. ORES Director Moaveni in September 2020 posted draft regulations that will replace the Article 10 process. The regulations document is 111 pages and some of it is technical and hard to decipher. The comment period ends November 16, 2020.
At the same time, the ORES director also posted a new draft document that was not found in Article 10. It is called the “Uniform Standards and Conditions”. These Uniform Standards have a comment period that ends December 7 and there are a series of public and virtual hearings that relate to this new document. Details of the hearings are posted here.
SOS is aware that these regulations and Uniform Standards, if they become final as written, will substantially increase the ability of the developer to come into a town and in 12-18 months gain approval for an enormous industrial project that may include waivers of local laws and ignore citizen concerns.
The draft ORES regulations eliminate the Article 10 guarantee that there will be a hearing on issues and concerns and provide less funding than Article 10 for local experts. There are many topics in the regulations including setbacks, shadow flicker and noise levels that have standardized minimums/maximums that are not sufficient to protect neighboring properties from disruption and intrusion. Timelines are established that are not realistic, are not sufficient to provide public input, and create the possibility that a project could be permitted without any public or agency review at all!
There has been no effort at transparency about who drafted these regulations, who was consulted and what information was used to develop them. There is no transparency about what other agencies like the Department of Environmental Conservation and the State Department of Health are saying about them.
Save Ontario Shores Response
SOS has hired three experts and our attorney, Gary Abraham, to make substantial comments on the draft regulations and Uniform Standards. We will submit comments to the ORES office and will post them on our website. We have expended substantial funds in this effort because we recognize that there is limited time to impact these regulations that may very well be applied to our towns.
What you can do to help
SOS has dedicated, generous supporters. We thank you for your ongoing support. It enables us to respond quickly and do what few local citizen groups can do – to be a strong statewide voice for rural health, safety, environmental, economic and other issues in siting industrial renewable energy projects. Thank you!
Not everyone wants to or is able to dig into the weeds of these regulations and Uniform Standards. However, we have a very diverse base of support. If you are one of those people who wants to take a hand at making comments…keep reading below. There are ideas for commenting on the regulations (111 page document) and that deadline is November 16. Hopefully there are some items below that will enable you to engage if you are one of those inclined to do so. If you have questions please feel free to contact us via our website contact page.
Your SOS Team
June 2019: Passage of the Climate Act
April 2020: Passage of the Accelerated Renewables Act as part of the budget
June 2020: Director named for the Office of Renewable Energy Siting (ORES)
Sept.2020: draft Accelerated Renewables Siting Regulations posted (to replace Article 10 regulations)
Sept.2020: draft Uniform Standards and Conditions posted (to streamline the process)
Nov. 16, 2020 Deadline for submitting comments on the draft regulations
Nov. 17-30 In-person public statement and virtual hearings on the draft Uniform Standards and Conditions
Dec. 7, 2020 Deadline for submitting comments on the Uniform Standards and Conditions
1. Regulations (111 pages) and 2. Uniform Standards and Conditions (32 pages). They are available for download here. The public has until November 16 to comment on the Regulations and until December 7 to comment on the Uniform Standards and Conditions. The documents and information on how to comment are available here.
Another Citizen Group’s Efforts:
We have struggled with how best to lay out detailed instructions for helping citizens comment on these regulations and the Uniform Standards. We’re aware of another citizens group which has pulled together a document that contains some good information and want to share it with you. The group is Northern NY Wind and their website is: http://www.nnywind.com/welcome.html
On their homepage you will see a section called “Information Alert” where you can download their document. Information on ORES begins on page 3; pages 4 and 5 include charts with proposed setbacks for industrial wind and solar projects. We think this will be helpful if you are interested in submitting comments.
Ideas on Topics for Comment on the draft regulations:
Some of the topics in the Regulations document (Subparts 900-1 through 900-5 and Subparts 900-7 through 900-14) that we highlight for review and comment are listed below. (The Uniform Standards comment deadline is not until Dec. 7 and the concerns are similar to those pertaining to the regulations.)
See pages 7-8: Regulations give the developer the ability to wait until just 60 days before filing an application to meet with municipalities and have one public meeting. Town officials and citizens need time to understand the project, communicate concerns and respond. The developer must contact towns and the public within 4 weeks of initial consideration of a project location.
Exhibit 5 Design Drawings (including Setbacks)
See page 23 The setbacks that are listed are arbitrary. Industrial wind turbines are not stationary structures but have blades close to the size of a football field that move at 200 miles per hour. Many jurisdictions have larger setback minimums. Existing NY project proposals have greater setback minimums. Residents should have greater minimum setbacks and all setbacks should be to the property line. A resident should be just as safe in their yard, driveway, garage, as they are in their home. Only setbacks to the property line will enable all acreage of non-participating property to be considered as location for a residence to be constructed.
Exhibit 7 Noise and Vibration
See page 30: A maximum noise limit of 45 dBA Leq (8-hour) is too high for rural areas that have current sound levels in the mid 20’s. Increases of this amount will be intrusive to intolerable by project neighbors. We need a much lower sound maximum. The Department of Environmental Conservation’s current guidelines require no more than 6 decibels above the existing sound level and this is reasonable.
Residents should have an opportunity to comment on the make and model of turbine prior to project approval. Developers should not be permitted to swap out at the last minute without citizen review.
Exhibit 8 Visual Impacts
See page 38: IWT’s are getting taller and are visually impacting larger areas. As industrial wind turbines get taller the viewshed maps should be extended. (We suggest a minimum of 2 miles for each 100 feet or portion of 100 feet.)
Shadow Flicker of 30 hours annually is permitted to impact a residence under the regulations and this is substantial as it will happen in the early morning or later afternoon when people are home. Shadow Flicker must be managed by moving turbines so they do not impact the entirety of adjacent properties, not just adjacent residences. Shadow flicker should not be forced upon any property owner.
Exhibit 11 Terrestrial Ecology
See page 46: This exhibit is for species that are not NYS threatened or endangered. The regulations and uniform standards highlight problems with NYS threatened or endangered species. But it does not acknowledge the likelihood of quantitative impacts on birds, bats and raptors. Just because a number of bird species are not threatened does not mean that we should be placing industrial projects in areas where thousands will be killed. Projects located in migratory regions will kill many species and many birds. This is not addressed in the regulations.
Exhibit 12 NYS Threatened or Endangered Species
See page 47
Exhibit 24 Local Laws and Ordinances
See page 70: Given the rapid pace of permitting anticipated by this new law, local law waivers will be a part of every project. This process renders town laws meaningless regarding noise, setbacks, construction operation hours and many other aspects of industrial renewable energy projects. A state agency should not be able to waive town laws that were enacted to protect the health, safety, environment and character of a town.
Add your voice by reviewing the regulations document and submitting your comments.
Comments on the Regulations (subparts 1-5 and 7-14) can be made at this LINK and are due by 11:59 p.m. on November 16, 2020.
Please save a copy of your comments and post them on the following DPS website relating to Large Scale Renewables : DMM 15-E-0302 (click on the blue box that states “Post Comments”). There is no location in the ORES website where comments are being posted for public access. In this manner we can have the benefit of seeing all comments.
A Final note on Data, Transparency and Access to Information (or lack thereof)
The last item bulleted above highlights a grave concern SOS has with the transfer of the siting of industrial renewable energy projects to this new office. There is no centralized location where documents are posted as there is under Article 10. Take a look at all of the 632 documents and 1745 comments on the Lighthouse Wind DPS website for reference.
The ORES office has informed us that if we want to see any public comments made on these regulations, we must make a formalized Freedom of Information Act (FOIL) request for them. Response time for this process is known to be very lengthy. This indicates to us the intention of the State. The more people know, the more they oppose these industrial utility scale renewable energy projects. So the State is moving to have us know as little as possible about what is happening in our towns.