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New York Certificate of Environmental Compatibility and Public Need (8-NY-c)

In New York, a hydropower developer may need to obtain a Certificate of Environmental Compatibility and Public Need (CECPN) from the New York State Public Service Commission (Commission) for the construction and operation of associated transmission lines. N.Y. Pub. Serv. Law §121(1), Certificate of Environmental Compatibility and Public Need. Specifically, a developer may need a CECPN for a transmission line extension project that is outside the primary transmission line approved by Federal Energy Regulatory Commission (FERC) or for transmission lines associated with a qualifying hydropower facility with a nameplate capacity of 5MW or less. N.Y. Pub. Serv. Law §120(2), Definitions. The Commission regulates the construction and operation of major transmission facilities pursuant to N.Y. Pub. Ser. Law §§120-130, Siting of Major Utility Transmission Facilities, and 16 CCR-NY §§ 85-88, Certificates of Environmental Compatibility and Public Need.


Certificate of Environmental Compatibility and Public Need Process

8-NY-c.1 to 8-NY-c.2 —Is the Proposed Project Considered a “Major Utility Transmission Facility”?

A developer must obtain a Certificate of Environmental Compatibility and Public Need (CECPN) from the New York State Public Service Commission (Commission) for the construction and operation of a major utility transmission facility. N.Y. Pub. Serv. Law §121(1), Certificate of Environmental Compatibility and Public Need.

A “major utility transmission facility is:

  • An electric transmission line of a design capacity of one hundred twenty-five (125) kilovolts; or more extending a distance of one (1) mile or more, or;
  • A electric transmission line of one hundred (100) kilovolts or more and less than one hundred twenty-five (125) kilovolts or more, extending a distance of ten (10) miles or more, including associated equipment.”

N.Y. Pub. Serv. Law §120 (2), Definitions.

A major utility transmission facility does not include a transmission line located wholly underground in a city with a population in excess of one hundred twenty-five (125) thousand or a primary transmission line approved by Federal Energy Regulatory Commission (FERC) in connection to a hydroelectric facility. N.Y. Pub. Serv. Law §120(2), Definitions. However, a developer may need a CECPN for transmission line extension projects outside the primary transmission line approved by FERC, or transmission lines associated with a qualifying hydroelectricity facility with a nameplate capacity of 5 MW or less, if that extension otherwise meets the definition of "major utility transmission facility." N.Y. Pub. Serv. Law §120(2), Definitions.

8-NY-c.3 — Initiate Pre-Application Consultation

The Commission encourages developers early in the planning phase of a project to consult informally with stakeholders. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 9.

8-NY-c.4 — Publish Notice of the Application for Certificate of Environmental Compatibility and Public Need

The developer must publish notice of the Application for Certificate of Environmental Compatibility and Public Need (Application) in a newspaper(s) of general circulation in all areas through which the facility is proposed to pass, for both its primary and alternate routes. The notice must contain a brief description of the proposed facility and its proposed location, along with a discussion of reasonable alternative locations. The notice must also give the date on or about which the developer will file the Application. N.Y. Pub. Serv. Law §122(2)(b), Application for a Certificate; The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 9.

At least once a week for two weeks prior to the filing of the Application, the developer must publish the notice in all areas where the facility is proposed to be located. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 9.

In addition, to the greatest extent practicable, the developer must serve each landowner of the land on which any portion of the proposed facility is to be located with first class mail notice that such landowner’s property may be impacted by the proposed project. The notice must explain how the landowner may file with the Commission a notice of intent to be a party to the Application proceedings and the timeframe for filing for party status. N.Y. Pub. Serv. Law §122(2)(c), Application for a Certificate.

The developer is also encouraged to make a copy of its applicable available at one or more public libraries or central locations for public review. This usually includes its placement in the library in the municipality or municipalities through which the primary transmission line or any alternative routes listed would pass. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 9.

8-NY-c.5 — Submit a Copy of the Application for Certificate of Environmental Compatibility and Public Need

The developer must submit a copy of the Application to the following:

N.Y. Pub. Serv. Law §122(2), Application for a Certificate.

8-NY-c.6 — Application for Certificate of Environmental Compatibility and Public Need

The developer must file a complete Application for Certificate of Environmental Compatibility and Public Need (Application) and applicable fee with the Commission. The Application must include, at minimum:

  • The location of the site or right-of-way;
  • A description of the proposed transmission facility;
  • A summary of any studies which have been made regarding the environmental impact of the project, and a description of those studies;
  • A statement explaining the need for the facility; and
  • A description of any reasonable alternate location or locations for the proposed facility, including:
    • a description of the comparative merits and detriments of each location submitted, and
    • a statement of the reasons why the primary proposed location is best suited for the facility.

N.Y. Pub. Serv. Law §122(1), Application for a Certificate.

The developer is also encouraged to include in its Application a complete report of its public involvement activities and its plans to encourage public participation. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 10.

The developer must also submit with the Application proof of service that the developer sent a copy of the Application to the following:

N.Y. Pub. Serv. Law §122(2), Application for a Certificate.

Note: (Optional) A developer may elect to submit an Environmental Management and Construction Plan (EM&CP) with the Application. However, developers often choose not to invest in the cost of generating an EM&CP until they are sure the Commission will approve the project. For more information on EM&CPs, see 8-NY-c.19 – Environmental Management and Construction Plan.

8-NY-c.7 to 8-NY-c.8 — Review Application Materials for Completeness

The Commission must review the Application for completeness and notify the developer of any deficiencies within thirty (30) days after receiving the filing. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 10.

The Commission may request additional information, and/or notify the applicant (developer) of a particular deficiency with the Application. 16 CCR-NY §§ 17.3-17.4, Matters Relative to All Applications; The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 10.

8-NY-c.9 — Hold Pre-hearing Conference (If Applicable)

The Commission may convene a pre-hearing conference to:

  • Formulate or simplify issues;
  • Arrange for the exchange of testimony and exhibits;
  • Limit the number of witnesses;
  • Set schedules, or
  • Otherwise expedite the orderly conduct of the proceeding.

16 CCR-NY § 4.4, Pre-Hearing Conference.

8-NY-c.10 to 8-NY-c.12 — Publish Notice of Public Hearing

The Commission must hold a public hearing regarding the Application within sixty (60) to ninety (90) days after receipt of a complete Application. N.Y. Pub. Serv. Law § 123(1), Hearing on Application for Certificate. The Commission will conduct the hearing in accordance to 16 CCR-NY § 4.51 et seq., Hearings.

The Commission must provide notice of the hearing prior to the date of the hearing. 16 CCR-NY § 4.2, Notice. The notice must include the time and place of each hearing determined by the Commission. 16 CCR-NY § 4.2, Notice.

Only parties to a proceeding may present evidence and examine and cross-examine witnesses. 16 CCR-NY § 4.3(a), Parties. However, “any person may ask the presiding officer for permission to intervene.” The Commission will likely grant a petition of intervention if the intervention “is likely to contribute to the development of a complete record or is otherwise fair and in the public interest.” 16 CCR-NY § 4.3(c)(1), Parties.

At any time in the proceeding, an individual may comment on a proposed project, i.e., Application. Any interested party may submit written comments electronically or via mail to the Secretary of the Commission, filling out a New York Public Service Proceeding Comment Form on the Commission’s website or calling the Commission’s Opinion Line. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 15.

8-NY-c.13 — Does the Commission Approve the Application?

The Commission analyzes the views of the parties, including the applicant (developer), the New York State Department of Public Service Staff, other State government agencies, and organizations, as well as those members of the general public who submitted comments electronically, orally, or in writing. In making a decision to either grant or deny the application, the Commission must determine:

  • The basis of the need for the facility;
  • The nature of the probable environmental impact;
  • The extent to which the facility minimizes adverse environmental impact, given environmental and other pertinent considerations;
  • What part, if any, of the line must be constructed underground;
  • The extent to which the facility conforms to the long-range plan for the electric power grid and interconnected utility systems to serve the electric system with economy and reliability;
  • That the location conforms with applicable state and local laws, except that the Commission may refuse to apply local laws determined to be unreasonably restrictive in view of the existing technology, cost, economics or needs of the consumers; and
  • That the construction and operation of the facility is in the public interest.

N.Y. Pub. Serv. Law §126(1), The Decision; The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 14.

If the Commission denies the Application, the Commission must file, with its order, an opinion stating in full its reasons for the denial. N.Y. Pub. Serv. Law §126(1), The Decision.

8-NY-c.14 — Certificate of Environmental Compatibility and Public Need

The developer must comply with the terms and conditions of the Certificate of Environmental Compatibility and Public Need.

8-NY-c.15 — Petition for Rehearing (If Applicable)

Any party aggrieved by any order issued on an Application may petition for rehearing pursuant to N.Y. Pub. Serv. Law §22, Rehearing Before the Commission within thirty (30) days after a written decision is issued.

8-NY-c.16 — Appeal Decision (If Applicable)

After the Commission has issued a decision on a petition for rehearing, any interested person may appeal the decision by the Commission to the Appellate Division of the New York State Supreme Court with one hundred and twenty (120) days pursuant to N.Y. Civ. Pract. L. and Rules §7801 et seq.

8-NY-c.17 to 8-NY-c.19 — Does the Commission Require the Developer to Submit an Environmental Management and Construction Plan?

The Commission regulates the construction and operation of major transmission facilities pursuant to N.Y. Pub. Ser. Law §§120-130, Siting of Major Utility Transmission Facilities, and 16 CCR-NY §§ 85-88, Certificates of Environmental Compatibility and Public Need.

For major projects, the Commission may require the developer to submit an Environmental Management and Construction Plan (EM&CP) verifying the developer’s compliance with the certification order before the developer may begin construction. An EM&CP details the “field” location of the transmission facilities and any special precautions the developer will take during the construction phase to ensure environmental compatibility. The EM&CP must outline the practices the developer will follow to ensure that the transmission facilities are in compliance with all applicable safety codes and any measures the developer will employ in maintaining and operating the facility once construction is complete. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 17.

Note: A developer may elect to submit an EM&CP earlier on in the certification process, along with the developer’s application for a Certificate of Environmental Compatibility and Public Need. (See 8-NY-c.6 – Application for Certificate of Environmental Compatibility and Public Need).

8-NY-c.20 – Provide Notice of Developer’s Environmental Management and Construction Plan

Once the Commission receives the developer’s EM&CP, the Commission will circulate notice of the developer’s EM&CP, and the location where the EM&CP can inspected, to each property owner that might be affected by the project and to the parties in the case. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 17.

8-NY-c.21 – Comment on Developer’s Environmental Management and Construction Plan

Interested parties may send any comments concerning the developer’s site-specific proposals to the Commission. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 17.

8-NY-c.22 – Does the Commission Approve the Developer’s Environmental Management and Construction Plan

The Commission reviews the developer’s detailed EM&CP and any comments received from interested stakeholders. At this point in the review process, the Commission will not adopt any stakeholder suggestions that are inconsistent with the previously issued certification.

If the Commission finds that the developer’s detailed EM&CP is not consistent with the Commission’s determination to issue the CEPCN, or is not appropriate to the circumstances, the Commission provide the developer with an opportunity to revise the EM&CP.

8-NY-c.23 – Authorization to Commence Construction

Once the Commission is satisfied that the developer’s detailed EM&CP is consistent with the Commission’s determination to issue the CEPCN and is appropriate to the circumstances, the Commission will authorize the developer to commence with construction. The Commission must approve the EM&CP before construction may begin. The Certification Review Process for Major Electric and Fuel Gas Transmission Guide, at p. 17.




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