The New York Office of Renewable Energy Siting (ORES) approved Hecate Energy’s permit for the 500-megawatt (MW) Cider Solar Farm on July 25, 2022. Because this is the first permit issued by ORES for a project that’s application was initially filed with the new state office under the Section 94-c rules it is worth a look. If this is any indication of how the State is going to permit all projects going forward I don’t think it will be in the best interests of the State.
New York’s Climate Leadership and Community Protection Act (Climate Act) Act establishes a “Net Zero” target (85% reduction and 15% offset of emissions) by 2050. I have written extensively on implementation of the Climate Act. Everyone wants to do right by the environment to the extent that efforts will make a positive impact at an affordable level. My analysis of the Climate Act shows that the ambitions for a zero-emissions economy outstrip available renewable technology such that the transition to an electric system relying on wind and solar will do more harm than good. The opinions expressed in this post do not reflect the position of any of my previous employers or any other company I have been associated with, these comments are mine alone.
New York Permitting Requirements
New York’s Article Ten process defines the permitting requirements for all large-scale electric generating new construction or expansion. It includes extensive and time-consuming public notification and public participation requirements. The 2011 revisions to the Article Ten law were intended to speed things up but were largely ineffective in that regard. In early April 2020, NYS passed the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA) as part of the 2020-21 state budget. The legislation was intended to ensure that renewable generation is sited in a timely and cost-effective manner.
AREGCBA established the Office of Renewable Energy Siting (ORES) which is housed within the Department of State. It will “consolidate the environmental review of major renewable energy facilities and provide a single forum to ensure that siting decisions are predictable, responsible, and delivered in a timely manner along with opportunities for input from local communities”. All large-scale, renewable energy projects 25 megawatts or larger will be required to obtain a siting permit from the Office of Renewable Energy Siting for new construction or expansion. However, during the transition developers can decide to finish their Article Ten permit application rather than convert to the new program. The AREGCBA application requirements are intended to primarily speed the process up but there is a provision that makes the opportunity for input from local communities a sham. In particular, ORES can find any local zoning code to be “unreasonably burdensome in view of CLCPA targets and the environmental benefits of the Facility” and simply over-ride the requirement. The very first permitting decision over-rode a local noise ordinance.
New York Solar Development Background
I became aware of the particular issues of utility-scale solar development on agriculture after I had a couple of people contact my blog describing issues that they had and suggested that I look into the issue. The problems that they raised are real, the solutions are available, but in the rush to develop as many renewable resources as quickly as possible the State of New York has dropped the ball on responsible utility-scale solar development. Given the massive amount of projected utility-scale solar generation capacity required to meet Climate Act goals the rush to develop solar projects could easily lead to the permanent loss of significant amounts of prime farmland that will hurt farming communities and endanger Climate Act strategies to sequester carbon in soil.
In my opinion if you are going to develop solar on the scale necessary, then there should be a plan for responsible siting. There is a policy option roadmap for the proposed 10 GW of distributed solar development. However, there is not an equivalent set of policies for utility-scale solar development. Given the magnitude of the potential impacts to prime farmland I submitted a comment to the Climate Action Council recommending that they impose a moratorium on the development of utility-scale solar projects until permitting requirements have been established for responsible solar siting and protection of prime farmlands. Not surprisingly there has been no response.
I described a workshop “What’s the Deal with Renewable Energy & Agriculture?” co-hosted by New Yorkers for Clean Power (NYCP) and Alliance for Clean Energy NY (ACENY) that discussed the compatibility of solar energy development and agriculture in New York State. In my opinion, all the speakers were advocating responsible solar development that minimizes the use of the best agricultural farmland soils. Whatever your position is with respect to the industrial solar development that to me is a key requirement. If a project meets all the New York State Department of Agriculture and Markets (Ag and Markets) guidelines and the ORES requirements then, given the current state law mandating massive buildouts of solar energy, the application should be approved.
There are Ag and Markets guidelines that have been described in prepared testimony by Michael Saviola from the Department of Agriculture and Markets that I believe represent best practices and should be mandatory going forward. In particular, “The Department’s goal is for projects to limit the conversion of agricultural areas within the Project Areas, to no more than 10% of soils classified by the Department’s NYS Agricultural Land Classification mineral soil groups 1-4, generally Prime Farmland soils, which represent the State’s most productive farmland.” In a post on the Garnet Energy Center, I explained that the permit decision for that facility will be a litmus test to see if the State is going to protect farming communities. The Saviola testimony clearly demonstrates that the proposed project is inappropriate because “the facility will result in or contribute to a significant and adverse disproportionate agricultural impact upon the local farming community”. Unfortunately, a nearby similar solar project was approved despite the fact that the Ag and Markets testimony noted that for the Trelina Solar Project “The Department estimates that greater than 68% of the of the limits of disturbance includes the conversion of farmland classified as Prime Farmland Soil” which clearly exceeds the Department goal.
Solar developers are quick to point out that a landowner gets revenue when a solar project is developed. However, when land is taken out of production it will reduce farm jobs and the economic activity may be improved during construction but once the facility is operational there are very few economic benefits to essential local businesses. Furthermore, taking the land out of production may make other farmers who have been renting that land to make their operations viable will not be able to support the investments they have made in facilities, livestock, or equipment.
Hecate Energy Cider Solar
According to the website summary the Cider Solar Farm will be a 500-megawatt photovoltaic solar facility capable of supplying 920,000 MWh (21% capacity factor). It will use photovoltaic panels on tracking structures that follow the sun throughout the day to optimize power production. It will be located in the towns of Elba and East Oakfield, Genesee County, NY. For those unfamiliar with the area, it is pretty flat, fertile and great for farming. Unfortunately it is also good for cheap solar development.
The application materials are available on the Department of Public Service website. The siting permit for the facility describes the project:
The Project components will be located on a Project Site of approximately 4,650 acres, comprised of 67 parcels of leased private land owned by 31 land holding entities. The total Project Footprint is approximately 2,452 acres, which includes both temporary and permanent disturbance and comprises the limit of disturbance (LOD).
The proposed Solar Facility will directly contribute significantly to New York State’s Climate Leadership and Community Protection Act (CLCPA) targets by producing up to 500 MW of emissions-free, low-cost, renewable solar energy to New York’s energy market. The Facility will produce enough zero-emissions energy to power more than 125,000 homes in NYS. The Facility will also create job opportunities, support economic growth, and protect the public health, safety and environment by significantly reducing greenhouse gas emissions. Without limitation, the Facility will result in a reduction of over 400,000 tons of greenhouse gas emissions in New York State (DMM Item No. 35, Exhibit 2 Overview and Public Involvement, September 3, 2021, at 2).
It all sounds wonderful but the more you read the more issues come up. The fact is that ORES can just do whatever it wants despite the concerns of the locals:
Executive Law § 94-c(5)(e) provides that a Siting Permit may only be issued if the Office makes a finding that the proposed Facility, together with any applicable Uniform Standards and Conditions, Site Specific Conditions, and compliance filings set forth in the Permit 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 Facility, it is unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed Facility.
In compliance with Executive Law § 94-c(5)(e), the Office has considered, without limitation, the proposed Facility’s contribution of up to 500 MW toward New York State’s CLCPA targets, and the environmental benefits of producing enough zero-emissions energy to power more than 125,000 homes in New York State and reduce greenhouse gas emissions by at least 400,000 tons in the State.
The Permittee has requested that the Office elect not to apply the following provisions of local law or ordinance. The Office hereby determines not to apply, in whole or in part, the following local law or ordinance provisions, which when applied to the proposed Facility, are unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed Facility. In making the determinations herein, the Office has balanced the proposed Facility’s competing impacts to multiple resources, and considered the Permittee’s proposed measures to avoid, minimize or mitigate those impacts to the maximum extent practicable, while ensuring protection of the environment and consideration pertinent social, economic and environmental factors.
Bottom line is that ORES over-ruled the Towns of Elba and Oakfield zoning ordinances that were“unreasonably burdensome” for the developer. A quick skim through the response to comments reveals a similar attitude to dismiss any local issues and concerns. For example, in response to a question about the impact of the project on property values the response was:
While § 94-c of the Executive Law does not require consideration of impacts on adjacent or nearby property values, it does require the Permittee to identify the relevant area of environmental concern and propose measures to avoid, minimize, or mitigate to the maximum extent practicable, potential significant adverse environmental impacts of the Facility.
Exhibit 15: Agricultural Resources describes the zoning, farmland classifications, and infrastructure in the area, maps of the resources, and plans for agriculture, remediation, and co-utilization. It defines three study areas in the Glossary of Terms. The “Project Area” refers to the Project Site and surrounding/adjacent land totaling approximately 7,518 acres. The “Project Footprint” refers to the limit of temporary and permanent disturbance within the Project Site caused by the construction and operation of all components of the Project totaling approximately 2,452 acres. The “Project Site” refers to those privately owned parcels under option to lease, purchase, easement or other real property interests with the Applicant in which all project components will be sited totaling approximately 4,650 acres.
Exhibit 15 includes an assessment of agricultural land use within five miles of the Project Site. In the discussion of the lands within certified NYS agricultural districts the text states: “The Project Area includes a total of approximately 7,845 acres, while the Project Site includes approximately 4,650 acres, and the Project Footprint is comprised of approximately 2,452 acres.” Note that the Project Area in the Glossary (7,518) and in this paragraph are not the same.
The section in this exhibit titled “Farmland Classification Mapping” lists landcover class data.
According to NLCD data, the dominant landcover class in the Project Site is active agriculture, followed by forestland. Agricultural lands in the Project Site are comprised of active agricultural land (both row crops and mowed/maintained hayfields) and there are numerous family and commercial farms and farm structures in the Project Site. Row crops comprise approximately 68% (3,143 acres) of the Project Site, and less than 1% (23 acres) of the total Project Site is maintained hayfields. Additionally, there is approximately 3.5% (161 acres) of the Project Site where the dominant land cover is grasslands or pasturelands.
Relative to agricultural soils, the Project Site includes approximately 41% (1,912 acres) of land classified as Prime Farmland, 27% (1,252 acres) as Prime Farmland if Drained, 19% (891 acres) as Farmland of Statewide Importance, and 13% (596 acres) as Not Prime Farmland (Natural Cooperative Soil Survey 2020). A map of the existing farmland classifications within the broader Project Area is included as Figure 15-3: Prime Farmlands and Drainage Features. A discussion of how the Project will avoid or minimize impacts to agricultural production areas and the effects the Project has on use of the land for future farming operations is included in Section (b)(3) of this Exhibit.
There is another section “Active Agricultural Businesses and Related Infrastructure” that describes local farming. It notes that the “Project Site is located within Genesee County Agricultural District #2 and includes approximately 3,166 acres (68%) of land designated as actively farmed.” There are 11 farms within the Project Site and six non-participating farms within the Project Area but not within the Project Site.
The “Potential Construction Impacts and Methods to Facilitate Farming During Construction” section gets to the core of my concern:
Potential impacts to agricultural land during construction will occur primarily from equipment movement and the installation of Project components including solar panels, mounting posts, inverters, access roads, buried electrical collection lines, temporary construction laydown areas and the substation. Most of these impacts will displace farming practices on agricultural lands during the operational life of the Project, while some construction activities will only create temporary disturbances to farming activities.
Although the solar panels and maintained areas, i.e., those areas within the fenceline not covered by panels or another project component, will cover approximately 2,178.9 acres total and 2,159 acres of active agricultural land, only 0.9 acres of permanent ground disturbance will occur for the installation of racking systems and associated steel posts. The Project’s racking system will be pile-driven to minimize subsurface ground disturbance. Areas under panel arrays would be taken out of agricultural production during the operational life of the Project, estimated to be a maximum of 30 years. Once Project construction has been completed, a native seed mixture will be used as ground cover to enable soil recovery, replenish soil nutrients and mitigate soil erosion. The Project will avoid using pesticides and herbicides, to the extent practicable,1 and surface grading will be limited to the minimal amount necessary to accommodate panel areas, access road and substation areas. A total of 2,159 acres of land will be removed from agricultural use during the operational life of the project. However, once decommissioned, agricultural land sited within the Project Footprint will be restored and able to return to its prior land use condition.
In my opinion this text removes any doubt that State policy is renewable energy is the priority over agriculture. Recall that the Department of Ag and Markets goal is for projects “to limit the conversion of agricultural areas within the Project Areas, to no more than 10% of soils classified by the Department’s NYS Agricultural Land Classification mineral soil groups 1-4, generally Prime Farmland soils, which represent the State’s most productive farmland.” The text does not present their numbers so that an easy comparison can be made. The 4,650 acre Project Site is 41% Prime Farmland (1,912 acres) and another 27% (1,252 acres) would be Prime Farmland if drained. The Ag and Markets goal is for the Project Area but no soil classification data are presented for that category. The text admits that the solar panels and maintained areas of this project “will cover approximately 2,178.9 acres total and 2,159 acres of active agricultural land”. It stands to reason farmers would actively cultivate Prime Farmland. In that case the project is converting 88% of the Prime Farmland in the Project Site to solar panels and maintained areas. There is no scenario where this project meets the Ag and Markets goal.
There is plenty of land that could be used for solar farms that is not actively farmed prime farmland. The New York State Department of Environmental Conservation Forests website states that forests cover 18.6 million acres of the state’s 30.2 million acres. The New York Farm Bureau says that according to the United States Department of Agriculture 2017 Ag Census, there were 33,438 farms in New York State and 6,866,171 acres in production. The following table is a summary of data in the Farmland Class of Soil Map Units in New York.
Obviously, there is a desperate need for a development plan or there will be impacts on the viability of New York’s agriculture industry. The question that the State has to answer is how much farmland can be converted to solar sprawl without impacting the agricultural sector. Exhibit 15 argued that this is not permanent conversion but Department of Ag and Markets testimony has argued, correctly in my opinion, that when the panels reach their end of useful life they will be replaced with a new set of panels. ORES apparently does not consider the Department of Ag and Markets solar siting goal on prime farmland a requirement and recent Article Ten proceedings have also ignored it.
I have been following a number of solar projects and the project areas can be used to derive a first-order approximation of future land area needed as shown in the following table. The project footprint using these numbers is 5.25 acres per MW. At the current rate 67% of those acres are prime farmland.
The cumulative effects are the primary concern. Exhibit 15 includes an assessment of other local renewable projects within five miles of this project:
Based upon a review of the New York State Department of Public Service and ORES websites, as if the time of this Application, there are three proposed renewable energy facilities located in Genesee County and neighboring Orleans County. These include the 280-MW Excelsior Energy Center in the Town of Byron located approximately two (2) miles east; the 200-MW Orleans Solar Project in the towns of Barre and Shelby located approximately three (3) miles northwest; and the 200-MW Heritage Wind Project in the Town of Barre located approximately one and a half (1.5) miles north.
Based on the first order approximations from the previous table another 2,520 acres will be converted to glass, copper and steel solar sprawl and we will lose another 1,680 acres of prime farmland. Eleven farms sold out to Hecate Energy for the Cider Solar project so we can expect to lose another ten for the two other solar projects. How many customers can the local suppliers of farm materials and equipment afford to lose before they go out of business?
The Draft Scoping Plan had three scenarios for future solar resource development. The total solar resources projected were between 41,420 and 43,432 MW in 2040. There is a target for 10,000 MW of distributed solar so for an upper bound assume that utility-scale solar resources of at least 31,420 MW will be needed by 2040. That equates to solar sprawl covering 164,961 acres and the loss of a large number of farmers.
It was difficult for me to write this post because I was so upset at the blatant disregard for agricultural issues evident in the decision to permit this facility. There is plenty of land available that is not on prime farmland that can be used for solar development. Until there is a state policy that codifies the Department of Ag and Markets guidance for solar development, out-of-state developers will come in and plop down these facilities where it is easiest and cheapest for them to build. It would be even better for the State to develop a siting policy that incorporates that guidance and other factors so that development is as effective as possible. I have little faith that the Climate Action Council will address this these needs
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