New consolidated clean energy permitting process takes effect

Beginning Oct. 1, all cities and towns in Massachusetts must start offering a new, consolidated permitting process for small clean energy infrastructure facilities.

The new process, prompted by a 2024 climate law and subsequent reforms, seeks to speed up and streamline siting and permitting for clean energy infrastructure, including solar, wind, anaerobic digestion, and energy storage facilities, as well as certain transmission and distribution infrastructure.

The law created a new permitting pathway for clean energy developers to use for small projects under local jurisdiction. This pathway can be used instead of existing local permitting processes if a developer desires.

Though it was not required, municipalities were permitted to offer the new pathway as early as July 1.

The new consolidated local siting and permitting process employed by local governments will apply to:
• Clean energy generation facilities under 25 megawatts
• Clean energy storage facilities under 100 megawatt hours
• Certain small transmission and distribution facilities

These “small clean energy infrastructure facilities,” referred to as SCEIFs, are individually defined in final state regulations (225 CMR 29.00) promulgated by the Clean Energy Siting and Permitting Division within the Department of Energy Resources.

Consolidated local permitting process overview
The new process requires municipal governments to issue a single, consolidated permit decision, and to do so within 12 months of a determination of an application’s completeness.

Municipal governments will review a Consolidated Local Permit Application — a common application for SCEIFs created by the Clean Energy Siting and Permitting Division. This standardized form is what applicants will use to apply for a consolidated local permit, rather than applying for individual permits from each applicable local board or commission.

Individual boards and commissions — such as planning, zoning and conservation boards — may still issue their own decisions on proposed projects following existing processes, but projects must receive an overall approval or rejection decision within 12 months.

The consolidated local permit application process begins well before a developer submits an application. Various elements of the new process are described below, with guidance documents created by the state linked for further reference.

Available guidance
• Guideline on Pre-Filing Stakeholder Engagement: Before submitting an application, project developers are responsible for completing a slate of pre-filing consultation and engagement requirements (another major element of the reforms prompted by the climate law). These requirements include a municipal meeting, public notice requirements, a public information session, and more. These are further detailed in regulations as well as in a Pre-Filing Engagement Completion Checklist.

A Pre-Filing Public Notice Document Template is also available for developers to use. The intention behind these requirements is for developers to submit an application that has incorporated early feedback from the community and is ready to be reviewed by all parties from the beginning of the 12-month review process, with the hope of reducing the need for additional information requests and speeding up the review timeline.

• Guideline on Public Health, Safety, Environmental, and Other Standards: Each proposed SCEIF will be required to meet baseline standards to protect public health, safety and the environment throughout project design, construction, operation, maintenance and decommissioning. The guideline details the minimum standards applicable to each type of clean energy infrastructure facility, such as “small clean energy storage facilities.”

• Site Suitability Reports for Clean Energy Infrastructure Facilities: These reports are another key reform of the climate law related to the siting of clean energy infrastructure. To address common impacts of development, applicants must submit a site suitability report that summarizes anticipated impacts on carbon storage and sequestration, biodiversity, agricultural resources, climate resiliency, and social and environmental burdens.

The state has developed a Site Suitability Mapping Tool that developers will use to determine a location’s suitability to host clean energy infrastructure; a higher score indicates a less suitable site with high impacts. If a local government, applicant, or stakeholder takes issue with a score and believes it to be miscalculated, they may file a Request for Site Suitability Score Revision. Decisions are made by the DOER within 30 days, and revised scores are not appealable.

• Guideline on Avoidance, Minimization, and Mitigation Measures: Using an application’s site suitability scores and report, the local government will determine and assign minimization and mitigation measures the applicant must perform.

Minimization measures seek to reduce the impacts of a project’s development and operation that cannot be avoided, while mitigation measures can include repair, rehabilitation and restoration of areas affected by siting impacts.

This framework identifies many sample measures for each category of impacts, and requires measures to have a “rational nexus” to the project’s impact.

A site with a high suitability score would be interpreted as needing significant minimization and/or mitigation measures. A site with a very low suitability score might not require any minimization or mitigation measures.

By combining the site suitability and avoidance, minimization, and mitigation frameworks, the consolidated local permitting process intends to deter projects that have detrimental impacts on the host community and environment.

• Standards and Guidelines for Community Benefit Plans and Community Benefit Agreements: Guidance is also available for developing community benefit plans and community benefit agreements. Detailed descriptions of any proposed plans or agreements should be part of a Consolidated Local Permit Application, if applicable, and drafts are recommended to be discussed during the pre-filing stage.

Final permit approval is not contingent on having a signed community benefit agreement, though it is encouraged. Community benefit plans are not legally binding.

• Guideline on Constructive Approval and Common Conditions: If a municipality does not reach a decision on an application within the allotted 12-month review period, the application will receive “Constructive Approval,” which allows the facility to proceed without local approval. The facility would be permitted under common conditions specified in this guideline, as well as the details included in the facility’s Consolidated Local Permit Application. Any conditions developed during the incomplete review process would not be incorporated in the approval.

Appeals will also be handled differently when projects go through this new process. Appeals will only be possible for the entirety of the permit decision, not individual components, and must be made within 30 days of a decision being reached by the local government. Appeals under this “De Novo Adjudication” process will be reviewed by the director of the Energy Facilities Siting Board.

If a municipality lacks the capacity, staff or resources to review a consolidated local permit, it may request that the state take over the permitting for the project. A municipality can either make that request within the first 60 days after receiving an application, or at any time thereafter with the consent of the applicant. The permitting for that facility, further described in 980 CMR 14.00 as a Local Request for Review Based on Lack of Resources, would be handled by the director of the EFSB.

Local government representative
Key to this entire review process is the role of a “local government representative,” or LGR. The LGR is defined by default as the local government’s chief administrative officer or their designee(s).

The LGR is responsible for:
• Certifying, within 10 days of receiving an applicant’s pre-filing engagement completion checklist, that pre-filing requirements have been met
• Determining application completeness (or working with relevant boards and departments to make that determination) within 30 days of receiving an application
• Reviewing and assigning mitigation and minimization measures
• Collecting the individual decisions of relevant boards and departments into a final Consolidated Local Permit Decision.

The city of Boston’s approach to handling the consolidated local permitting process, including the designation of the local government representative, was covered in a recent blog post by Foley Hoag.

Technical assistance
Technical assistance is available to help cities and towns navigate the new process.

The Clean Energy Siting and Permitting Division has created two FAQs: “First Steps to Take” and “Understanding the Role of the Local Government Representative.”

Siting and Permitting Regional Coordinators can also assist with questions and meet with municipalities to discuss the new process.

The Department of Energy Resources has created a model bylaw to help incorporate regulatory requirements for the new consolidated permitting pathway into zoning bylaws and ordinances. The department has also published an updated model zoning bylaw for solar installations and a new model zoning bylaw for battery energy storage systems. While these are available, updating municipal bylaws and ordinances is not required in order to be in compliance with the new law or regulations.

The DOER is still developing an online application portal that will aggregate information and notify municipalities when applications and documents are submitted by developers. The department said the portal is expected to go live this fall.