Staff for the Maryland Public Service Commission (PSC) have issued a rulemaking request with significant proposed changes to the solar siting process. The changes, if adopted by the Commission into the Code of Maryland Regulations (COMAR) would reform what is considered a “complete” application for a Certificate of Public Convenience and Necessity (CPCN) to proceed.
Following a recommendation outlined in the Governor’s Task Force on Renewable Energy Development and Siting (REDS) final report, the PSC initiated a rulemaking proceeding to consider revisions to the CPCN process through amendments to the Code of Maryland Regulations (COMAR) 20.79. The notice from the PSC cited developer concerns over “delays due to zoning processes at the local level” in part as reasoning for the rulemaking. The State is under pressure to meet its renewable energy goals, especially the 14.5 percent solar carveout of the Renewable Energy Portfolio Standard (RPS).
CPCNs represent state approval for utility-scale energy generating facilities which are greater than 2 megawatts, and for solar, typically require roughly ten or more acres of land. Following the decision in Washington County v. Perennial Solar, LLC, the Court of Appeals held that the PSC has the final say in the siting of utility-scale solar developments, while reasserting that the PSC is required by statute to give “due consideration” to: (1) the position of the local government on a proposed solar project; (2) the consistency of the project with the local government’s comprehensive plan and zoning; and (3) the efforts of affected parties to resolve any issues presented by the local government.
MACo submitted comments and recommendations designed to preserve the local voice in the siting of utility-scale solar while providing clarity and efficiency to the process. This could be achieved by (1) requiring early and consistent communication between developers and local government, (2) require evidence of participation in local zoning processes, and (3) make it easier for local governments to become involved in the State process.
In response to comments, and based on an interpretation of the Perennial decision, staff for the Maryland Public Service Commission (PSC) has issued a petition to the Commission to initiate a rulemaking to revise COMAR. In its request, technical staff for the PSC outline several recommendations, primarily centered around reforming the application checklist and establishing a new “pre-application” period for CPCN applications that do not obtain full local zoning approval.
From the petition:
Staff proposes that the Commission initiate a rulemaking in order to modify the CPCN application requirements under COMAR 20.79.01, 20.79.02, and 20.79.03 to include a pre-application process requiring the applicant to provide certain project information to the local jurisdictions in which large-scale generator projects are proposed to be built, and certain application requirement improvements for proposed large-scale generating stations. The purpose of these regulations is to provide local jurisdictions with advance notice of project details through a revised pre-application process, create a clear set of criteria for the application completeness determination, and ensure State agencies are provided an adequate amount of information in the application—at a sufficient level of detail—to begin their substantive review of proposed projects.
PSC staff regulations would require utility-scale solar developers to either obtain local zoning approval for proposed projects, or, 90 days prior to filing a CPCN application: (1) hold a meeting with the staff of an affected jurisdiction; and (2) provide the jurisdiction a draft environmental review document, a properly sized conceptual site plan, and information on the CPCN process. Within 90 days of receiving the information, local government may submit information in a new preliminary report pertaining to local zoning including (1) a statement whether the project is consistent with local zoning; (2) a statement whether the project is consistent with the comprehensive plan; and (3) suggestions for improving the application prior to the filing for a CPCN. For projects that have not yet obtained an approval from the local jurisdiction, the applicant must describe these requirements for the PSC. If after 90 days the local jurisdiction declines to submit statements, then the applicants must provide documentation showing efforts to contact the local government and information on the project’s consistency with local zoning.
After the 90 day pre-application period the developer could file the application with the PSC who would assign the application to either the Commission itself, or delegate their authority to a Public Utility Law Judge (PULJ). Then the Power Plant Research Program (PPRP) has 45 days to issue a determination on whether the application is to be considered complete. If the application is deficient, then the PSC would set a deadline for any needed information.
The PSC is accepting comments on the proposed rulemaking until February 5, 2021 at which point a date will be set for legislative style hearings on revisions to COMAR.
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