Environmental regs are ever-changing
By MATT CHANDLER
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If you like the picturesque sight of windmills dotting the skyline of Lake Erie, you may be in luck. A change in environmental regulations could increase the chance of more wind farms sprouting across Western New York.
The state regulation is commonly known as Article 10, and according to Dennis Harkawik, a partner in Jaeckle Fleischmann & Mugel, the regs open the door not only for wind farms but for new power plants Upstate.
"People want the benefits of power plants and wind farms, but nobody wants them in their backyards," he says. "The process to get approval, particularly for wind farms, was tough. You had to go through multiple levels, both state and local, and there was no one-stop shopping like there used to be."
The issue was that a town or municipality could single-handedly block a project from being built, according to Harkawik. If enough residents voiced concern, a town could simply say no to wind farms on its land - period. That's where Article 10 comes in.
"In 2011 the state decided to re-enact Article 10, bringing back the ease of the process for developers wanting to build these types of projects," he says. "While it is still a lengthy and expensive process, the Article 10 prohibits any local municipality from outright banning power plants or wind farms on its land."
However, Harkawik says, don't expect windmills to start appearing all over your neighborhood. Because of the cost and the intensive process that must take place, it is still a big deal to make these projects happen.
"Just because this is in place doesn't mean the residents and the towns don't have a say in the process. There is still a public component to this development, and residents have opportunities to voice concerns and ultimately block a project," he says.
The key is it involves a fair and balanced process for both sides, replacing the ability to arbitrarily forbid building power plants and wind farms in a community, he adds.
There have been numerous projects throughout Western New York that were built on the back of the brownfields cleanup program. Developers are offered tax credits and incentives to build on property that contains some hazardous waste. The program has led to many projects that environmental attorneys say would never come to fruition without the incentives, leaving these damaged land areas undeveloped. But the program is set to sunset March 31, 2015, and that puts the future of regional development in peril.
"That seems like it is way in the future, but it really isn't," Harkawik says. "Because if you don't get from the DEC something called a Certificate of Completion by that date, you don't get the tax credits."
It can take several years after a business applies to the program to get the certificate, he says, meaning that a three-year winding down until the sunset date isn't as big as it first seems.
"For a big cleanup, you're probably already too late to get a COC," he says. "As time goes on, medium-sized projects will run out of time, then small projects, until the program is going to start to shut down."
The program had been controversial, with some developers complaining that downstate projects take advantage of tax credits for buildings on marginally qualified properties.
Charles Grieco, an environmental attorney and a colleague of Harkawik, says frustration over groups getting paid for questionable development has led to some people pushing for change.
"There are people out there talking to the DEC and advocating for the program to be a volunteer cleanup," he says. "So you wouldn't get the tax credits, but what you do get is a liability release for the property."
According to Grieco, the idea of a volunteer program is attractive, especially for smaller projects.
"For those projects, they may not really need the tax credits, but they still aren't going to touch it if they think they could get sued," he says. "So I think it will be interesting to see if that gets rolled into any extension of the program."
Harkawik, meanwhile, says it is too early to tell what the Legislature will do with the brownfields cleanup program, though he expects it will be extended, albeit with some modifications.
"When I asked the deputy commissioner what they planned to do, he said, 'Well, we're going to tweak it,' though he wouldn't really say what that meant," Harkawik says. "They were trying to restrict eligibility (for the program), so that may be part of the thinking about any adjustments for an extension of the program. He says legislative action would need to be taken by next year to keep it running largely uninterrupted.
"People are starting to discuss the idea that we will lose some of the development projects in this area if the program is allowed to expire. We have been advising people, if you really want to do a cleanup and get it all done and get those tax credits, get on it now."
Environmental attorney and Damon Morey partner John Kolaga says while there are many environmental hot-button issues - from fracking to the brownfields debate - one of the issues facing developers is regulation of federal wetlands.
"There was a recent case that asked under what circumstances can a property owner challenge a delineation by the federal authorities as to what constitutes a federal wetland," he says. "There are certain requirements for what those requirements are."
The rules say the wetland must have a connection to a navigable waterway, Kolaga says. But that's where the rules get gray and - depending on which side of the fence you're on - unfair, some say.
"I think it is fair to say that most businesses believe that the EPA has taken a very aggressive position as to how close that connection needs to be between the land and the navigable waterway," he says. "This has been a big issue with builders in Western New York and nationwide."
According to Kolaga, projects can be derailed because if an area is deemed a federal wetland, a federal permit must be secured to build on the land.
"People make plans to build on a property with virtually no connection to any waterway, but because there may be a sewer line that is connected somewhere down the road, the EPA will say there is a sufficient nexus to call it a federal wetland," he says.
For developers, there is good news from the Supreme Court on this issue, he adds, saying, ""Now the applicant can challenge a wetlands designation early on in the process, rather than having to wait until the end."
That can make a big financial difference for a developer and ultimately lead to more development.
"If you have to wait until the end to challenge, you can be talking about millions of dollars in delays," Kolaga says. "In our office, we see these wetlands issues as a battle zone between developers, industry and the regulators."