ORES ALJs Recommend Denial of Shepherd’s Run Solar Permit
On October 5, 2026, two Administrative Law Judges (“ALJs”) at the New York Department of Public Service recommended that the Office of Renewable Energy Siting and Electric Transmission (“ORES”) deny a siting permit for the Shepherd’s Run Solar Farm (“Shepherd’s Run”) in the Town of Copake. In their Hearing Report and Recommended Decision (“Hearing Report/RD”), the ALJs found that the applicant, Hecate Energy Columbia County 1 (“Hecate”), failed to demonstrate compliance with New York’s wetlands laws, and that the record does not support compliance with Chapter 135 of Copake’s Town Code, which governs flood damage prevention. The recommendation is not final: the ORES Executive Director (“Director”) must act on the permit by October 19, 2026. Even so, the Hearing Report/RD is a useful illustration of how the Article VIII siting process weighs renewable energy development against state and local environmental protections.
Background & Procedural History
Hecate filed its application for the 42-megawatt (“MW”) project under Public Service Law (“PSL”) Article VIII on December 23, 2024, after ORES had previously dismissed an earlier application from Hecate for a 60 MW facility due to the partial loss of site control. The project site sits on 723 acres of privately-owned farmland, forest, streams, and wetlands, approximately 215 non-contiguous acres of which the project would actually occupy; part of the site lies in a Federal Emergency Management Agency (“FEMA”) Zone A special flood hazard area. ORES issued a draft siting permit on November 18, 2025, that included Condition 3(b), requiring Hecate to comply with and obtain any necessary approvals under Chapter 135 of the Copake Town Code.
In June, the ALJs upheld Condition 3(b) and found Hecate’s wetlands delineation deficient, but concluded the problems could be cured through post-permit compliance filings. The Director disagreed, stating in an Interim Decision that “where record evidence is absent, the use of compliance filings is inadequate, inasmuch as the information obtained in such filing may result in a major project modification, the imposition of additional site-specific conditions, or even permit denial.” He remanded the issues for an expedited adjudicatory hearing, held in Copake on September 14, 2026, with Hecate agreeing to extend the final permit issuance deadline to October 19, 2026.
Wetlands Findings
Applying the wetlands regulations in effect when Hecate filed its application, the ALJs found that the hearing evidence reinforced their earlier conclusions. The delineation relied on outdated 2019/2020 fieldwork, and witnesses for both the developer and ORES agreed that wetlands change over time. Hecate also used the Army Corps of Engineers (“ACE”) delineation manual rather than the New York Department of Environmental Conservation (“DEC”) manual, which contains state-specific vegetative criteria. During a site visit the day before the hearing, the Town of Copake’s expert observed vegetation outside the delineated boundaries that Hecate’s own witness acknowledged is a wetland indicator.
The ALJs further found that several wetlands on the property were treated as unregulated even though they are hydrologically connected to Class I wetland H-19 and should be classified accordingly – a connection Hecate’s own witness conceded for several of them, including wetlands directly beneath proposed solar arrays. Hecate was also found not to have looked for wetlands of unusual importance, which are protected under Environmental Conservation Law (“ECL”) Article 24, whether or not DEC has mapped them. Finally, the ALJs concluded that ORES’s April 2024 Jurisdictional Determination (“JD”) is invalid: it reissued a 2021 JD without new data or a site visit, extended the JD’s validity from five years to eight without justification, and inaccurately stated that it was issued in consultation with DEC when no such consultation occurred. Hecate was also found not to have acted in good faith in restricting the Town’s experts’ access to the site.
Floodplains & Chapter 135 Findings
Based on DEC’s affirmation in the proceeding, the ALJs held that Chapter 135 implements the federally approved National Flood Insurance Program through ECL Article 36, which gives municipalities the exclusive right to manage compliance and approvals; ORES, therefore, cannot waive or implement the Chapter. The ALJs again upheld Condition 3(b) and found that the record does not support compliance, though they did not reach a specific compliance determination.
Hecate did not provide a base flood elevation, offering instead inundation depths that its own witness acknowledged were not a calculated elevation. Its hydrology study used a 24-hour, 100-year storm depth of 5.29 inches rather than the National Oceanic and Atmospheric Administration (“NOAA”) standard of 7.96 inches, with no explanation – likely understating total flooding potential. Even on its own estimates, Hecate acknowledged that an inverter and several posts would likely need to be relocated or raised due to flooding impacts, but included neither change in its application nor any plan to stow or move solar panels in the event of a power loss.
Key Takeaways
The ALJs’ Hearing Report/RD is only a recommendation: comments are due by October 13, 2026, and the Director must issue a final decision by October 19. Regardless of the outcome, the Director’s Interim Decision signals that ORES may not always let developers resolve deficiencies through post-permit compliance filings, so developers should expect closer pre-permit scrutiny of the application record.
Developers should also expect challenges to wetland delineations and JIs that are based on outdated data/site visits, methodologies that do not align with DEC criteria, and/or mapping deficiencies (e.g., wetlands of unusual importance). In FEMA-designated flood zones, they should plan for project-specific elevation calculations, reputable modeling inputs, and flood operation plans, since Article VIII does not displace local floodplain laws tied to the National Flood Insurance Program.
Hodgson Russ is actively monitoring ORES dockets and renewable energy siting proceedings across New York State. The Environment & Energy practice represents clients on renewable energy siting and environmental regulatory developments at the local, state, and federal levels. Please contact Chuck Malcomb, Tom Berkman, Alicia Legland, or another member of the team to discuss how recent ORES decisions may impact your projects.
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