Dennis C. Vacco Lippes Mathias Wexler Friedman LLP Partner dvaccorW, Iippes.com Buffalo Office

January 12, 2016

VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED, DMM SYSTEM AND/OR ELECTRONIC MAIL

Honorable Sean Mullany (Sean.Mullany@dps. ny.gov) Administrative Law Judge State ofNew York Department of Public Service Three Empire State Plaza Albany, NY 12223-1350

Honorable Richard A. Sherman ([email protected]) Office of Hearings and Mediation Services NYS DEC 625 Broadway, First Floor Albany, New York 12233-1550

Honorable David R. Van Ort (David [email protected]) Administrative Law Judge State ofNew York Department of Public Service Three Empire State Plaza Albany, NY 12223-1350

Hon. Kathleen H. Burgess Secretary to the Commission NYS Department of Public Service 3 Empire State Plaza Albany, NY 12223

Re: CASE 14-F-0485

Town of Somerset's Comments on Preliminary Scoping Statement Filed by Lighthouse Wind LLC, and Further Comments in Support of Motion to Strike Premature and Inadequate PSS

• • • • Page 2

Your Honors,

This office represents the Town of Somerset ("Somerset" or "the Town") with regard to Lighthouse Wind LLC's (the "Applicant's") 1 proposed Lighthouse Wind project 2 ("the Project"). This letter, its enclosures , the expert opinion letters filed separately, and the separately filed comments of Save Ontario Shores, Inc. ("S.O.S."), constitute the Town of Somerset's comments on the Applicant's Preliminary Scoping Statement ("PSS") filed on November 23, 2015. In addition, many of the issues raised in this letter are applicable to Somerset's previously filed motion to strike the PSS or indefinitely suspend the deadline for comment.

I. INTRODUCTION

From the outset, it is necessary for Somerset to reserve its right to provide future comments on the PSS. The PSS as filed omits substantial and necessary information about the Project. Although many PSS omissions are addressed below, the most glaring omission relates to the Applicant's continuing refusal to divulge the actual location of the proposed wind turbines. The Applicant's refusal to participate with stakeholders has forced numerous parties to resort to motion practice. See Matter Number 14-02194, Case No. 14-F-0485, Filing Numbers 152, 153, 154, 162, 163, 172.3 These motions were filed and served separately by three of the primary stakeholders in this proceeding: The Town of Somerset, The Town of Yates, and S.O.S.4 The Public Service Commission (the "Commission") initially denied these motions based on a purported technical procedural 5 deficiency . See Filing Numbers 158, 159, 160. In response, all three stakeholders filed new motions as requested. Rather than responding to the new motions, the Commission set the date for party replies in support or opposition as January 12, 20 16--the very same date comments on the PSS are due. This decision effectively moots the purpose of the motions, which was to delay PSS comments until the Applicant provided critical location information. In the event the Applicant provides additional details, Somerset must therefore be allowed further opportunity to comment.

1 Lighthouse Wind LLC is associated with Apex Clean Energy, a national industrial wind energy company. 2 The terms "enclosure" and "exhibit" are used interchangeably. All enclosures and exhibits to this letter are submitted for review as comments in their own ri ght, and their relevance is not limited to the specific context in which the comment is raised. For example, although an exhibit may only be referenced in one section of this document, the exhibit should be construed as a comment on any and all sections ofthe PSS to which it could apply. As such all exhibits should be reviewed in their entirety as they constitute further comments on the PSS expressly incorporated by the Town of Somerset. 3 Available at http :1 /documents.dps. ny .gov/pub Iic /MatterManagement/Case Master.aspx?MatterSeq=46604&MNO= 14-F- 0485 4 S.O.S., or Save Ontario Shores, Inc., is a coalition of concerned citizens dedicated to addressing the concerns about the health, safety and welfare of the Town of Yates and Town of Somerset taxpayers and residents arising from the proposed Lighthouse Wind industrial wind turbine project. 5 As explained in the Town of Somerset's letter to Secretary Burgess dated December 24, 2015, Filing No. 161 , the Town does not concede its initial filing was made in procedural error. Page 3

Ultimately, by denying the motions to strike or suspend the comment deadline, the Commission is validating the Applicant's chosen policy of stonewalling and intentionally concealing the land currently owned or leased by the Applicant. The Applicant has land under lease. Even if the exact location of the towers is not known, the location of land actually under lease should be revealed. The Applicant's failure to do so, despite numerous requests and motion practice, shows a profound disrespect for openness and transparency in this process. Simply put, because the Applicant is unwilling to reveal the location ofthe industrial wind turbines, the PSS as a whole is premature.

Even if the PSS as a whole were not premature, which it is, the current deadline for submitting comments on the PSS is premature and impractical in light of the recent political upheaval in the Town of Yates. As highlighted in Filing Numbers 153 , 163, 164, 165, 166, 170, and 171 , the newly elected government of the Town of Yates has been left with almost no time to review the actions of its predecessor, or draft and submit comments. Although the Commission was made aware of these issues prior to the PSS 6 comment deadline , it refused to acknowledge the town supervisor's request for additional time, stating his request was made only in his capacity as a Town of Yates citizen, and that he could therefore not take action on behalf of the town. See Filing No. 173. However, by the Commission's own reasoning, if the Town of Yates Supervisor is unable to make a motion without board action, he is also unable to comment on the PSS without board action. Because the Town of Yates has been unable to convene a full board meeting prior to January 12, 2015, it has been unable to take the official action dictated by the Commission as being requisite to PSS comment.

In effect, the new government of the Town of Yates has been denied the ability to comment on the PSS. The voters of the Town of Yates, who just recently elected the town supervisor on a write-in basis, have also had their voices silenced. In addition, Somerset and Yates have been denied the opportunity to coordinate their responses and conserve resources. In summary, the current procedural posture of this case seriously prejudices all stakeholders.

Notwithstanding the prematurity of the PSS, the Applicant's ongoing policy of stonewalling, and the political change in Yates, the Town of Somerset submits this letter in an attempt to comment on the PSS to the best of its ability. Somerset's comments are contained in this letter, its exhibits and in expert opinion letters filed separately. In addition, Somerset expressly incorporates any and all comments on the PSS filed by S.O.S.

II. GENERAL COMMENTS

Somerset is unable to provide comprehensive comments on the PSS at this time because the Applicant has elected to actively conceal the number, type, and actual location of industrial wind turbines. As a result and as noted in the Town of Yates

6 See Letter dated December 31 , 2015, Filing No. 171 . Page 4 comments on the PSS, "it is presently impossible for the Town to assess the specific impact(s)--be it environmental, ecological, cultural, noise, aesthetics, etc." Filing No. 165.

Nevertheless, the general prospect of a large scale industrial wind turbine facility located on the shore of Lake Ontario in the Towns of Yates and Somerset raises serious concerns. The three most pressing concerns relate to the Project's likely impact avian migration and populations, the Project's likely impact on property values, and the Project's certain encroachment on the Niagara Falls Air Reserve Station and associated Military Operating Areas. As explained below and in the separately filed expert opinion letters, the PSS has completely failed to address any of these critical issues.

A. The Severe Threat to Avian Migration and Populations

The public record in this matter reveals a unanimous sentiment that the Lighthouse Wind Project poses a severe threat to birds and bats along the Lake Ontario shoreline. The key difference between the Project and other industrial wind sites located in New York State is that the Project is located directly on the Lake Ontario shoreline. The lakeside location is critical because of the concentrating effect of the lake shore on migrating birds. The general idea is that in the spring, birds from as far south as South America migrate North into Canada and the North Eastern United States. Under certain weather conditions, when these birds reach Lake Erie and Ontario, they choose to circumnavigate the lake rather than cross. This leads to a narrow, concentrated stream of birds migrating west to east along the Lake Ontario shoreline. The siting of windmills in the birds' flight path could thus have a severe impact on bird migration on a continental scale, and result in avian fatalities one to two orders of magnitude higher than those seen at other industrial wind sites.

The studies cited by the Applicant, which purport to show no real impact on birds, completely fail to account for the key distinction that the Project will be located on the lake shore. Concerns about the unique location of the Project have been raised by Government agencies, conservation groups, and noted experts. All agree that the Lighthouse Wind Project is an environmental disaster in the making.

For example, on May 6, 2015, the United States Fish and Wildlife Service sent a letter to Apex Clean Energy, incorporated herein as Exhibit 1. In relevant part, the letter stated,

"[T]he risk to wildlife from operating wind turbines could rise to severe levels. Previously, the Service has recommended that wind energy projects be constructed at least three miles from the shoreline of the Great Lakes to reduce this risk."

Exhibit 1, p. 5.

The New York State DEC has expressed similar sentiments. Pursuant to a FOIL request, Somerset obtained an email between officers of the DEC indicating that they Page 5

"agree" with various statements pomtmg out the danger of locating industrial wind turbines on the shores of Lake Ontario. This email is incorporated herein as Exhibit 2. In the email, DEC officials "agree" with the following statement:

Therefore, it is not a suitable region for large industrial wind turbine facilities ... development of wind turbines along the south shore of Lake Ontario is ill advised, the cost in birds and wildlife will be too high for NYS.

Exhibit 2. The DEC email goes on to "agree" with the positions of various interest groups, organizations, and government agencies, including the Genesee Valley Audubon Society, the Hawk Migration Association of North America, the Federation of Monroe County Environmentalists, and the US Department of Fish and Wildlife Service. All of these groups have condemned the notion of locating an industrial wind facility on the shores of Lake Ontario.

Indeed, some of these groups have commented directly on the PSS. Exhibit 3, which is expressly incorporated herein, is a letter form the Genesee Valley Audubon Society ("GVAS") dated December 28, 2015 providing public comments on the PSS. In the letter, the President of the Society notes:

Wind projects should not be located along the south shore of Lake Ontario; it is a migratory corridor for birds and bats and will adversely affect many of their populations.

Exhibit 3, p. 2. Earlier, the GV AS wrote a letter to the DPS and the Energy Siting Board dated June 11 , 2015, which is expressly incorporated herein as Exhibit 4. In this letter, the GV AS cites the American Bird Conservancy's Wind Development Bird Risk Assessment Maps, which "show that the south shore of Lake Ontario is a critical migratory corridor for both raptors and other neotropical migratory birds. Therefore it is not a suitable region for large industrial wind turbine facilities." Exhibit 4.

Other birding organizations have also actively opposed the Lighthouse Wind Project. On October 29, 2015, the Rochester Birding Association drafted a letter to Secretary Burgess. This letter is incorporated herein as Exhibit 5. In this letter, the Rochester Birding Association states,

The Rochester Birding Association concludes that development of wind turbines along the south shore of Lake Ontario is ill-advised, the cost in birds and wildlife will be too high for the people and the ecological balance of New York State. We respectfully advise that the Lighthouse Wind project be relocated to an area that will result in fewer avian casualties.

Exhibit 5, p. 4. Page 6

Finally, in a December 15, 2015 letter to the Commission, the American Bird Conservancy ("ABC") takes a strong position against the project and threatens litigation if the siting process continues. The ABC's comment letter is expressly incorporated herein as Exhibit 6. The following excerpt from the letter shows the strength of ABC's opposition to the Project:

We have recently developed a top ten list of the worst­ sited existing and proposed wind energy projects in the United States from the perspective of avian conservation. Lighthouse is on that list, and will soon become widely known to those who care about our nation's ecologically­ important and irreplaceable wildlife. ABC has taken direct action to stop poorly sited wind energy facilities in the past and has been successful on several occasions, (e.g .. Camp Perry: ABC 2014). It is our hope that Apex Clean Energy will realize the error of this decision and move the project well away from sensitive areas for birds and bats, including major migratory pathways, and sensitive breeding and feeding areas. To reiterate, we support wind energy development, but would just like to see it done right. That is clearly not the case here. Thank you for the opportunity to comment.

Exhibit 6, p. 4 (emphasis added).

It is only fair to note that none of the agencies or organizations listed above are anti-renewable wind energy. However, it is abundantly clear that these groups believe the Project proposed by Lighthouse Wind will have an overwhelmingly negative impact on the environment. As of the time of this writing, Somerset believes other local and national associations intend to comment on the PSS, and will have similarly negative views of the project.

Given the overwhelming opposition to the Lighthouse Wind Project based on environmental grounds, it is unsurprising the Applicant has failed to submit a PSS that includes a study plan capable of addressing the concerns generally outlined above. In order to provide the most thorough comment possible on the inadequacy of the PSS and its associated Avian Bat and Study Plan, the Town has retained two experts to comment directly on the PSS. The comments of William R. Evans and Brett Ewald were filed separately as Filing No's 175 and 179 , and are expressly incorporated herein. Of particular note, Mr. Evans states:

In summary, the fact that spring nocturnal migration studies are not included in the current L WP Avian and Bat Study Plan suggest that Apex and its environmental consultant, Ecology & Environment Inc. , are unaware of the potentially large impacts the project may have. As noted previously, such impacts may be one to two orders of Page 7

magnitude higher than inland projects during spring migration. All indications suggest the L WP could have the highest spring bird fatality rate of any existing wind project in North America.

Filing No. 175, p. 5-6. Similarly, Mr. Ewald, who focused his comments more on problems with the raptor migration and study design deficiencies, states:

As raptors are adverse to crossing large bodies of water due to a lack of thermal activity, used for economy of energy expenditure, they are "funneled" by the predominantly easterly moving weather systems and topography along the lakeshore on their way to northern breeding grounds that are past the eastern end of Lake Ontario. These dynamics concentrate the majority of raptors within several miles of the lake, directly in the path of the proposed wind turbines.

Filing No. 179, p. 9.

In summary, the Lighthouse Wind Project is likely to have a disastrous impact on avian migration and populations. The expert comments of William Evans and Brett Ewald discuss the numerous deficiencies in the PSS and Avian and Bat Study Plan, and outline various studies and issues that must be addressed. However, given the consensus represented above, it would be prudent for Lighthouse Wind to withdraw its application and relocate to an area further from the lake shore, thus saving all Parties from incurring additional unnecessary expense in this matter. The inconvenient truth for Lighthouse Wind is that the southern shore of Lake Ontario will never be an appropriate location for large scale industrial wind development.

B. Dramatic Reduction in Property Values

The Applicant erroneously asserts that, industrial "wind facilities have no significant impact on property values." PSS at p. 87. In accordance with this position, the Applicant has failed to outline any property value studies in the PSS.

Contrary to the Applicant's position, it is well settled that the studies cited by the Applicant do not support the Applicant's conclusion. The Town has retained appraisal and property value expert Michael S. McCann, CRA, to evaluate the PSS, to evaluate the studies cited by the PSS, and to propose necessary studies that must be conducted. Mr. McCann's opinion letter is expressly incorporated and attached hereto as Exhibit 7. In the letter, Mr. McCann notes:

The studies cited in the L W PSS are deficient with respect to the extent and quality of the information needed to address the adverse impact of large scale turbines located in relatively close proximity to neighboring residential uses. Page 8

Exhibit 7, p. 3. Because the studies cited by the Applicant are inadequate, a property value study should be conducted to assess the Project's likely impact on property values. The PSS should be modified and resubmitted by the Applicant accordingly.

Finally, if the Applicant is confident in its position that property values will not be impacted by the Project, then the Applicant and its affiliates should guarantee the property values of all property owners in the project area. As stated by Mr. McCann,

The L W PSS fails to provide for any meaningful mitigation of any value impacts that may be caused by the Project. Options include a Property Value Guarantee (PVG) for residents who do not wish to move, or buyout of homeowners who do not wish to be living among large scale industrial wind turbines. In this manner, homeowners would not be faced with significant loss of value and hard eamed home equity.

Exhibit 7, p. 6. Based on the above, at a minimum, the PSS should be modified to include mitigating measures in the event property values are impacted. If the Applicant is confident in its position that property values will not be impacted, then it should certainly be willing to guarantee pre-project property values in Somerset.

C. Encroachment and Potential Closure of Niagara Falls Air Force Base

The PSS completely fails to address the Project's certain impact on the nearby Niagara Falls Air Reserve Station ("NFARS"). On January 4, 2016, three retired U.S. Air Force Colonels sent a letter to Govemor Cuomo. This letter, which is expressly incorporated herein, was filed under separate cover letter as Filing No. 174. The letter is particularly noteworthy given that its drafters are all retired commanders or vice commanders of Air Wings that operate out of NF ARS. The Colonels are unimpeachably qualified to comment on matters conceming NF ARS operations, encroachment, and the future threat of NFARS closing during the next Defense Base Closure and Realignment Commission ("BRAC"). The Colonels provided the following analysis:

Based on our knowledge of the current and potential future missions at NF ARS, the construction of these turbines could indeed pose a serious encroachment threat into the [Military Operating Area].

The future of NF ARS, its current and potential military usefulness, could very well rest on the decision made by your administration on this proposed project. If the base were to lose its competitive advantage in the area of Page 9

encroachment, its position with the next BRAC would be seriously compromised. A decision to permit the APEX project will create estimated 5-10 full time jobs. If the next BRAC were to recommend and succeed in closing NF ARS the cost will be nearly 3200 jobs!

Filing No. 174, p. 8. Congressman Chris Collins has echoed the Colonels' concerns in a letter dated December 8, 2015. The letter is enclosed as Exhibit 8.

The threat to NF ARS as a viable base is real. Yet, the PSS completely fails to address the likely possibility ofNFARS closing in the proposed Project scope. There is no discussion of the potential loss of 3200 jobs. No discussion of environmental justice or socioeconomic effects as they relate to the closing of NF ARS. No allowance for a base closure in the statement of need. In summary, there is no evidence that Lighthouse Wind or its parent company Apex have even considered the possibility that NF ARS could be closed as a direct and likely consequence of the Project's encroachment on NF AR's air space. As a result, the siting process cannot proceed until all aspects of the PSS are revised to account for the impact ofNF ARS closing as a result of the Project.

III. SPECIFIC COMMENTS.

The following comments relate to the specific deficiencies in issues raised in the PSS, critical issues omitted by the PSS and requiring further study, and deficiencies in the methodology and scope of proposed studies that must be conducted prior to the Project's Certification. Additional specific comments can be found in all enclosures and exhibits to this document. The specific comments of the Town Engineer, which are applicable to many of the sections of the PSS listed below, are expressly incorporated as Exhibit 9.

1.1 PURPOSE OF DOCUMENT

The Town objects to the Applicant's assertion that stake-holders and the general public should only be given 21 days to provide comment on the PSS. See PSS at § 1.1 , p. 2. As argued at length in separate filings and motions, and in the General Comments section above, the 21 day comment period, as well as the extension of time to respond until January 12, 2016, is completely inadequate given the Applicant's refusal to provide the location of turbines or land under lease. The recent political upheaval in the Town of Yates also makes comment impractical at this time. It is Somerset's position that the comment deadline should be indefinitely suspended, or that the PSS should be stricken in its entirety. At a minimum, the Town reserves its right to provide additional Comments on the PSS when and if the Applicant chooses to reveal additional essential information regarding the Project. Page 10

1.2 CONTENT OF APPLICATION

Somerset expressly incorporates § 1.2 of the Town of Yates Comments on Preliminary Scoping Statement, Filing No. 165 ("Yates Comments"). The comment is reproduced in its entirety:

The PSS specifically identifies several application exhibits that were not ' scoped' in the PSS, including, but not limited to, exhibits pertaining to facility and turbine design, cost analyses, site restoration, decommissioning, and other public applications and filings. Since many of these exhibits appear to concern the financial costs and various impact(s) of the Project both before, during, and after its completion, to the extent it is required to do so, the Town reserves its right to comment on these exhibits once they are provided later in the application process.

Yates Comments, § 1.2, p. 3.

Somerset further disagrees with the Applicant's assertion that Exhibits 16, 17, 38, and 39 do not need to be scoped in the PSS because they "do not apply" to the project. PSS at § 1.2, p. 3. First and foremost, Exhibit 16, Pollution Control Facilities, does in fact apply to this project. The 61-71 turbines contemplated by the project are enormous machines using huge volumes of hydraulic and lubricating oil. This oil must be stored, replaced, and disposed of on a regular basis. For example,

It generally takes two maintenance workers to perform an oil change, one worker on the ground and the other in the nacelle. A 330-foot-long hose is pulled up into the nacelle' s yaw deck just under the gearbox. The hose is connected to the gearbox through a ball valve. A vacuum is pulled using an air pressurizer on the ground. Draining the rate of four to six gallons a minute it can take around 30 minutes to drain the roughly 80 gallons of oil from the gearbox . . . . Refilling the gearbox can take another 30 minutes, meaning the total fluid exchange process from start to finish can take as much as two hours.

Proper Lubrication is Key to Wind Turbine Longevity, Power Engineering, 08/01 /2010. 7

The Applicant must be required to expressly quantify the amount of hazardous materials required to be used, the amount of hazardous waste to be stored and disposed of, describe the storage and maintenance facilities necessary to do so, and outline environmental responses required in the event spills or other accidents occur. The Siting

7 Available at http://www.power-eng.com/articles/print/volume-114/issue-8/Features/ proper-lubrication-is­ key-to-wind-turbine-longevity .html . Page 11

Board must make a determination regarding whether the Applicant's pollution control facilities are adequate. The Applicant's scoping statement should be made in accordance with 16 CRR-NY 1001.16.

In addition, Exhibit 16 should address Pollution Control Facilities required for the construction of the 61-71 concrete pads, the associated concrete plant, the construction of roads, and the use and maintenance of all necessary construction equipment. The construction of a concrete plant may also require Exhibit 17, Air Emissions, to be addressed, as well as Exhibits 38 and 39, Water and Waste Water Interconnections.

Finally, Somerset objects to the Applicant's statement that it will "request[] that the Siting Board waive substantive local requirements, as applicable, in accordance with 16 NYCRR § 1001.31(e)." It is the Town's Position that such waiver is unconstitutional and in violation of Article IX of the New York State Constitution. The Siting Board does not have the power to overrule local laws in violation of the Constitution. This section should be stricken from the Project Scope, and the Siting Board should not be afforded the opportunity to "waive" local law.

1.3 DESCRIPTION OF THE PROPOSED FACILITY

This section fails to provide any substantive information regarding the Project. The PSS must be stricken, and the Applicant must be required to submit a new PSS. All stakeholders must then be allowed an opportunity to comment on the new information. At a minimum, there is no reason the applicant cannot provide the following information immediately:

-What is the location of private land currently under lease? -How much land is required to complete the project? -How much additional land must be purchased or leased to allow the project to proceed? -Does the applicant even have the necessary land under lease to complete the project? -Where are optimal wind resources located? -Will the project be located on contiguously located parcels, or spread out over a greater distance? -If the project were to be cited today, what model and size of turbine would be used? -Approximately how many miles of access roads will be built? -What acreage of farmland will be permanently and/or temporarily disturbed by turbine towers? -What are the type and size of facilities needed for construction, operation, maintenance, and emergency/disaster response? -Where would the same be located?

The Applicant is intentionally withholding information, and has filed a fatally premature PSS. The PSS was filed over the recent winter holiday period, likely in an attempt to prevent meaningful stakeholder participation in the siting process. The Page 12

Applicant should be directed to refile this section of the PSS with the information required by 16 NYCRR § 1001.3, and stakeholders should be allowed adequate time to comment on this currently omitted information.

1.4 LOCATION AND ENVIRONMENTAL SETTING OF THE PROPOSED FACILITY

The Applicant completely misrepresents the environmental setting of the proposed facility as one of mixed-use development with a large pre-existing industrial footprint. On page 5 of the PSS, the Applicant claims:

[t]he Project site encompasses an area with a variety of land uses, ranging from agricultural or rural residential, to forestland, to lakefront/lakeshore which is seasonal recreational and residential in character. Interspersed through the Project area are industrial uses such as an active CSX-owned railroad and Somerset Operating power plant ....

PSS at p. 5.

However, even a cursory overview of the current Somerset zoning map (attached as Exhibit 10), shows that if the industrial wind turbines are to be located along the lake shore (as is strongly suspected), they will be entirely contained within residential, residential lake shore, agricultural, and state parkland areas. It is completely disingenuous to describe this area as mixed use or partially industrial in nature. Exhibit 11 is a screenshot from www.maps.google.com showing satellite imagery of the likely turbine location. Again, there is no evidence of industry, large scale development, or mixed use areas. The region contains bucolic farmland, parkland, and a heavy concentration of residences along the lake shore and main roads. Further, these residences are not merely "seasonal" in nature as described by the Applicant. Many families have their permanent, year round homes on the shore of Lake Ontario.

Based on the Applicant's misrepresentation of the Location and Environmental Setting of the Proposed Facility, the Applicant should be required to resubmit this section of the PSS with an accurate, detailed description of the environmental setting. This should include the exact location of parcels currently owned or leased by the applicant, and their proximity to residential, farm, and park land. Once resubmitted, stakeholders including the Town should be given a minimum of 21 days to comment on the amended PSS.

1.5 PROJECT PURPOSE, NEED AND BENEFIT

The Applicant asserts that it will provide a "significant source of renewable energy to the New York State Power grid. PSS at p. 5. The Applicant goes on to cite a number of government policies naming percentage based targets for increased levels of green energy. However, by its very nature, wind power is intermittent and variable. In order for the Siting Board to make a determination of benefit, the Applicant should be required to Page 13 show the actual likely yearly output of its facility. This actual likely output would be impacted by factors that are simply not addressed in the PSS. How does the Applicant arrive at the expectation its facility can meet the needs of 53,000 households? See PSS at p. 6. Is this assumption based upon all turbines operating at peak capacity at all times?

The following issues relating to the purpose, need, and benefit of the Project should be addressed in order to determine whether there is an actual need for the Project, and how much of benefit the Project will actually produce:

-actual energy demand in the region; -the cost and carbon-footprint of fossil-fueled back-up facilities that may otherwise be closed; -tower maintenance schedules resulting in down time; -average turbine failure rate resulting in down time; -and the average meteorological conditions of the Project site including daily average wind speed, temperature, and precipitation.

With regard to the meteorological factors, it is anticipated that wind speeds will frequently be less than required to generate electricity at rated capacity, and may frequently not allow for any electrical generation at all. In addition, the likely location along the shores of Lake Ontario may predispose the turbines to lakes snows and blade icing, which could result in additional turbine down time, and even catastrophic failure posing a danger to human life. Somerset believes it would be impossible for the Siting Board to make a determination of need and benefit without addressing these many issues.

Finally, on page 6 of the PSS, the Applicant claims there will be an economic benefit to the local community based on the creation of "up to 13 local, full time positions," and "direct payments to the local taxing jurisdictions ... expected to total at least $1.5 million per year ...." However, these assertions do not account for the real possibility that 3,200 jobs could be lost at the nearby Niagara Falls Air Reserve Station, see Filing No. 174, or that the Niagara County Legislature and the Town of Somerset are currently opposed to any PILOT type agreement. Further, if property values decrease (explained more fully above and below), the tax base for the county, town, and villages may be severely reduced. All of these issues must be addressed in the Project scope, although the Applicant has failed to include them.

In summary, the Applicant should be required to address the issues raised above in an amended PSS, or at a minimum these issues should be thoroughly studied before the Siting Board makes a determination of need and benefit.

1.6 PUBLIC OUTREACH

The PSS is premature and the s1tmg process should be restarted because the Applicant has not complied with 16 NYCRR § 1000.4 (c). Specifically, the Applicant has failed to consult with affected agencies and stakeholders, and has engaged in pre­ application activities designed to stifle rather than encourage stakeholder participation. Page 14

First, the Applicant has refused to honor the Town's requests for information regarding its meetings with interested government agencies. On Nov. 2, 2015, the Town requested access "to any written or electronic record of any meeting you have had with any representative ofthe State ofNew York, during which meeting the Town of Somerset was not present ... [and] copies of any written or electronic correspondence between any representative of Apex and any representative of the State of New York, on which the Town of Somerset was not copied." Filing No. 112.

In response, rather than encouraging Somerset's participation and consulting with Somerset, the Applicant inexplicably chose to view the Town's request as a FOIL request, and cited FOIL in refusing to provide the requested documents. Filing No. 113. The Applicant's response makes little sense because the applicant is not a public entity. In reality, Somerset sought this information not to badger and harass, but to better inform itself of the status of pending and proposed studies regarding the Project, thereby facilitating more meaningful comment on the yet to be filed PSS. By refusing to honor the Town's request, the Applicant has acted in clear violation of the 16 NYCRR § 1000.4 (c) and its own PIP. For this reason alone, the PSS should be stricken as the Applicant has failed to comply with the requisite PIP by failing to consult with stakeholders.

Furthermore, the Applicant has engaged in egregious and potentially illegal conduct designed to stifle public participation. Upon information and belief, the Applicant or its agents have attempted to stifle public participation by sponsoring the "Fear not the wind" advertising campaign. Through this campaign, upon information and belief, the Applicant or its agents have attempted to persuade the public to simply accept the Project without review or participation in the siting process. To this end, the Applicant produced and distributed public mailings, letters, and lawn signs. See e.g Signs Supporting Wind Turbines in Somerset are offensive, The Buffalo News, October 4, 2015 (available at http://www. buffal onews. com/ opinion/letters-to-the-editor/ signs-supporting-wind­ turbines-in-somerset-are-offensive-20 151004 ).

Even more troublesome is that the Applicant or its agents have attempted to stifle public participation by flooding the public comments portion of the DPS DMM website with form letters written, upon information or belief, by the Applicant or agents of the Applicant. The Applicant provides support letter templates on its website. See http:/ /www.lighthousewind.com/get_involved (last accessed 118/20 16) ("Apex template available if desired").

As only one example of the Applicant's conduct, on November 20, 2015, nineteen identical letters purportedly drafted by individual members of the public were posted on the DPS website. If these comments were drafted by the Applicant or its agents, the Applicant's actions would constitute an unconscionable abuse of the Commission's public comment section. Indeed, the Applicant's actions, if proven, appear to violate New York State Law, and could be considered illegal astroturfing as defined by the New York State Attorney General. In summary, the Applicant may have engaged in deceptive and potentially fraudulent conduct by posting the Applicant's own comments and positions in the name of individual members of the public, all in an attempt to secure pecuniary gain. Page 15

Finally, as pointed out in numerous public comments, the Applicant has failed to provide substantive responses to public questions submitted pursuant to the PIP, and has seemingly timed the filing of its PSS over the winter holiday period in a blatant attempt to suppress meaningful comment.

Taken as a whole, the Applicant's course of conduct is in clear violation of 16 NYCRR § 1000.4, which requires the Applicant to "seek public participation through the planning, pre-application, certification, compliance, and implementation process." Because the PIP has not been complied with, the PSS is premature and the Applicant should be required to resubmit the PSS after resubmitting and adhering to a valid PIP. At a minimum, the commission should prevent the Applicant from stonewalling, actively discouraging public participation in the future, and engaging in deceptive practices using the Commission's public comment website.

2.1 LAND USE

Section 2.1 of the PSS contains inaccurate statements that are misleading and could confuse individuals who are not personally familiar with the Town of Somerset. The Applicant states more than once that "industrial uses" are "interspersed through the Project area." i.e. PSS at p. 9. This statement is simply false and should be removed to avoid confusion.

The Applicant states in the PSS that the "Project is expected to be largely compatible with the land uses in and around the project site." PSS at p. 12. Instead of making such a conclusory statement, the Applicant needs to identify how land uses will be identified and mapped in the Project area and in the area surrounding the Project area and to what distance land use will be mapped. Additionally, Somerset's town engineer opines that the Project is in direct conflict with Somerset' s Comprehensive Plan. Exhibit 9. The town engineer also recommends that other regional Comprehensive Plans be identified and evaluated against the Project. Such plans include the Niagara Communities Plan, the Regional Framework for Growth, the WNY Sustainability Plan, and the Regional Economic Development Plan. Exhibit 9.

2.2 ELECTRIC SYSTEM EFFECTS

Section 2.2 of the PSS is deficient because it fails to account for fluctuations in the Project's power output and resulting effects on the New York State Transmission System with any level of specificity. On page 16 of the PSS, the Applicant concedes that,

"[i]f a forecasted reduction in transfer capability across affected interfaces violates reliability requirements, the discussion will include an evaluation of reasonable corrective measures that could be employed to mitigate or eliminate said reduction."

PSS at p. 16 (emphasis added). Page 16

The above statement raises numerous questions and issues that are not addressed by the PSS:

-What might lead to a forecasted reduction in transfer capability? What are reliability requirements?

-Is the Project able to meet them?

-If not, what are the kinds of measures that could be used to mitigate reliability issues?

-Does mitigating measures include the required availability of back-up power supplied by combustion of fossil fuels?

-If so, will the Project require carbon-emitting generation stations to remain open where otherwise they may be able to close permanently?

-Does the Applicant have any sense of the reliability of wind turbines given prevailing meteorological conditions in the area?

-Is any study proposed to gather weather data and determine the resulting impacts on the reliability of the Projects electrical generating capacity?

All of these issues must be addressed by the Siting Board if electric system effects are to be fully quantified. The PSS is deficient as written and must be stricken and/or resubmitted including a section addressing the above issues. At a minimum, the Project scope should be modified to include the issues raised above.

2.3 PUBLIC HEALTH AND SAFETY

A fundamental duty of government is protecting the health and safety of its residents. The burden to prove that an industrial wind turbine project causes adverse health effects should never be on the residents. As a result, the Town of Somerset requests that the Applicant completes a proactive baseline health study prior to any construction in order to prove to the community that there are no adverse health impacts.

The Town of Somerset has retained the services of Jerry L. Punch, Ph.D. Dr. Punch is an expert on adverse health effects caused by industrial wind turbines. Dr. Punch's comments to the PSS have been filed separately, see Filing No. 180, and are expressly incorporated herein.

2.4 NOISE AND VIBRATION

Section 2.4 of the PSS contains inaccurate statements that are misleading and could confuse individuals who are not personally familiar with the Town of Somerset. The Applicant makes the conclusory statement that sound levels along the Lake Ontario shoreline are expected to be typical of moderately developed suburban areas. PSS at Page 17 p.28. The Lake Ontario shoreline in Somerset is not a suburban area. The Applicant's erroneous statement to the contrary should be removed to avoid confusion.

Somerset's town engineer opines that the collection of noise level data at six (6) locations seems to be totally inadequate. Instead, background noise levels should be obtained at all sensitive receptors. The town engineer also requests that the Applicant identify and analyze technology changes and methods to reduce noise impacts. Exhibit 9.

Somerset's town engineer also requests that the specific type of turbine for the Project be identified and that actual operational noise results be obtained, instead of only manufacturer data. Exhibit 9.

In addition to these comments, the Town of Somerset specifically adopts and incorporates the comments provided by attorney Gary Abraham and acoustics expert Rick James.

2.5 CULTURAL RESOURCES

The PSS fails to properly scope the Phase 1A or 1B Field Testing Plan as required by 16 NYCRR § 1000.20 because the Applicant relies on potentially inapplicable source material. On Page 36 of the PSS, the Applicant states the following:

The Phase 1A survey will also include preparation of a Field Testing Plan outlining the Phase 1B field-testing strategy. The Field Testing Plan will identify environmental zones within in the APE based on Robert E. Funk's 1993 work, Archeological Investigations in the Upper Susquehanna Valley, New York State. Based upon the definition of zones, the number of shovel tests will be determined. Ultimately, the Field Testing Plan will be reviewed and approved by SHPO before implementation.

PSS at p. 36. It is not at all clear why an archaeological work describing environmental zones in the Upper Susquehanna Valley--well over 100 miles from the Project Site-­ should be applicable to the Towns of Yates and Somerset. If no zones apply, then it is presumed the number of applicable shovel tests would be zero, thus obviating the need for study. The Town therefore demands a full Phase II study including intensive archaeological field investigations in accordance with 16 NYCRR § 1000.20(a)(4). The potential exists for damage to known and unknown archaeological sites related to Native American settlements, the War of 1812, and the construction ofthe historic 30 Mile Point Lighthouse.

An additional cultural resource not addressed by the PSS is the Great Lakes Seaway Trail. This route is a federally designated National Scenic Byway. On February 11 , 2015, the CEO of the Great Lakes Seaway Trail sent a letter to the Siting Board. This letter is expressly incorporated herein as Exhibit 12. The Seaway Trail is firmly against the siting of wind turbines near the Seaway Trail: Page 18

Route 18 through most of Orleans and Niagara County is the designated route of the Great Lakes Seaway Trail, a federally designated National Scenic Byway. It is our position that the scale and environmental impacts of the towers would be detrimental to the view scape and agricultural nature ofthe trail in this area.

Exhibit 12. The Seaway trail issue should be addressed as a cultural resource, as well as in any other portion of the PSS where it is appropriate to raise the issue.

2.6 GEOLOGY, SEISMOLOGY, AND SOILS

The Applicant has often repeated the Project's turbines could exceed 600 feet in total height. Such large turbines, reportedly the tallest ever to be sited on land in the United States, will undoubtedly require enormous concrete footings. 8 The type of footings used, and their method of construction (which the Applicant has also failed to 9 properly scope ), could cause lasting damage to soils in Somerset.

Further, setback areas around the Turbine could also permanently destroy prime farm land. As indicated on page 38 of the PSS, a large percentage of the Project Site is designated as prime farmland and prime farmland of statewide importance. PSS p. 38. Yet, by refusing to reveal the location of the towers, the Applicant makes it impossible to determine how much prime farmland and soil will be disturbed. The issue of how much prime farmland will be destroyed must be studied as part of the Project Scope.

In addition, without knowing the location of the turbines, it is impossible to determine whether large scale blasting will be required in close proximity to the highly residential areas along the lake shore. Although the Applicant mentions the possibility of blasting on pages 41-42 of the PSS, it has not mentioned that large scale blasting could occur in close proximity to residential areas. A detailed study of the impact on residents to be caused by large scale blasting operations must be undertaken. In addition, the Applicant must be made financially liable for any interruption in enjoyment of property caused by the Applicant's blasting and construction operations.

Finally, the applicant fails to address whether the turbines footings will have a lasting impact on soils as a result of concrete leaching. Will concrete footings be buried during the decommissioning process? How would this effect soil chemistry and drainage?

2. 7 TERRESTRIAL ECOLOGY AND WETLANDS

8 See Svensson, Henrik, Design of Foundations for Wind Turbines (available at http://www .geotekn ik .lth.se/ fi leadmin/byggnadsmekaniklpubl ications/tvsm5000/web5173.pdf). 9 If Towers are to be uniquely large, additional study should be conducted to determine their suitability for siting on land, particularly in Yates and Somerset given their soil and bedrock composition. Larger towers may well pose unique stabilization issues, and could be susceptible to higher rates of catastrophic collapse. Page 19

The comments of Brett Ewald and William Evans, Filing No.'s 179 and 175 , are expressly incorporated herein. The PSS completely fails to address the potentially devastating impact of the Project on migrating birds. Further comment is impractical at this point given the Applicant's unwillingness to share the actual location of the project. Somerset reserves its right to provide additional comment as additional details become available.

2.8 WATER RESOURCES AND AQUATIC ECOLOGY

The comments of the Town Engineer, Andrew Riley, PE, AICP, are expressly incorporated herein as Exhibit 9 In relevant part, Exhibit 9 raises the following issues:

a. There may be wells utilized by farmers in the study area. These should be identified, along with a discussion of potential impacts.

b. For stormwater, identify the parameters for dealing with stormwater not only during construction (sediment and erosion control plans) but after construction. These sites appear to be close to or exceeding 1+ acres of disturbance and therefore will require some level of post construction storm water control. Also, some of the turbines may be located close enough to one another to also warrant taking them together under the SWPPP. Thoroughly describe how the project will meet NYS and Town of Somerset Stormwater requirements and the facilities that will be constructed to meet those regulations. The impacts of these facilities must also be identified in other environmental sections of this PSS document. These facilities, for example, will impact additional lands, streams, agriculture, etc.

c. Analyze the alternative stormwater facilities that could be constructed to mitigate quantity and quality stormwater impacts. Determine which facilities will best reduce the impacts of this project and minimize impacts to other environmental features (agriculture, groundwaters, land uses, etc.)

d. Discuss the impacts to groundwater and surface waters due to the construction of large concrete foundations. Discuss and analyze any leaching problems off of these concrete foundations. Also discuss and analyze impacts to groundwater flows due to these large foundations potentially impacting the flow of these ground waters. Page 20

Exhibit 9, page 4.

2.9 VISUAL IMPACT

The Applicant is not impartial and cannot be entrusted with the responsibility of preparing an unbiased Visual Impact Assessment ("VIA") as required by 16 NYCRR § 1001.24. On page 63 of the PSS the Applicant claims to have reached out to local communities "in an effort to seek input on visually sensitive resources within each community." On October 19, 2015, the Applicant did indeed send a letter to stakeholders seeking input for a VIA. However, the letter set an arbitrarily strict deadline of October 30 for submitting information to the Applicant's hand-picked VIA consultant. In response, the Town informed the Applicant that it required additional time to provide a meaningful response given the large number of visual assets in Somerset. Filing No. 114. The Applicant never responded to the Town's request, and has apparently proceeded with a VIA without the Town's input.

Given the Applicant's proven track record of affirmatively minimizing stakeholder participation, the Town demands that a new, impartial consulting firm be retained to perform a fair and accurate VIA. Simply put, the Town does not believe the Applicant or its current consultant will produce a fair and unbiased assessment. The Applicant's refusal to honor, or even respond, to the Town's good faith request for an extension of time to participate is proof positive of the Applicant's bad faith on this issue.

Further, the PSS and project scope should be modified to incorporate the importance of the Great Lakes Seaway Trail as a component of the Project viewshed. Although the applicant makes a passing reference to the Seaway Trail, it makes no attempt to address the impact on views from the Seaway Trail.

The Applicant must also be required to reveal the actual location of turbines and land under lease so that the impact of shadow flicker on nearby residential areas can be determined via Shadow Flicker Analysis. Contrary to the Applicant's repeated assertions that the project area is either empty farm land or industrially zoned, there is a narrow but densely populated residential area located near the lake shore. It seems very likely that most turbines will be located in close proximity to this residential area, as well as nearby park land and campgrounds. Further, given that the turbines will likely be located south of residential areas, shadow flicker is anticipated to be a serious threat. Somerset sincerely hopes the Applicant is not currently concealing information regarding the location of turbines in an attempt to forestall the shadow flicker study required by regulation. Both shadow flicker studies and the eventual VIA must take into account the proximity of turbines to these relatively highly populated areas.

Finally, perhaps conceding that the Project will result in permanent damage to the Somerset viewshed, the Applicant proposes " [c ]orrection of an existing aesthetic problem identified within the Project viewshed as an offset or compensation for Project impacts." The Applicant must be required to provide a full list of preexisting "aesthetic problems" that it might wish to "correct." Somerset proposes that should the Project be sited in Page 21

Somerset, the Applicant should be required to "correct" the problem of decreased property values as an offset to the aesthetic problems caused by the Applicant.

2.10 EFFECT ON TRANSPORTATION

The PSS does not adequately address the prospect of encroachment on flight operations from the Niagara Falls Air Reserve Station (NF ARS). The PSS briefly mentions NF ARS on page 69, but completely fails to note that the Project will be located within a Military Operating Area. Exhibit 13 is a map obtained pursuant to a FOIL request to the DEC. The map is a Department of Defense planning tool, and it shows unequivocally that the Project "falls within the confines of M-MISTY 1, and may have an impact on military operations." Exhibit 13.

Because the Project is located within the MISTY 1 - MOA, it is likely to serve as a serious encroachment on NF ARS airspace. Although some in the community have argued that planes can simply fly around the towers, such evasive action would only prove the point that the Project will alter existing flight patterns within the MOA.

Encroachment is a serious issue for NF ARS because the base has traditionally scored very highly for having little encroachment on its airspace. This high score was obtained during previous BRAC reviews, under which bases around the country are reviewed for potential closure. Encroachment is thus a key issue for NF ARS, because the additional encroachment caused by the Project could result in a lower encroachment rating during the next BRAC. This could result in closure of the base.

The NF ARS encroachment issue has recently been addressed by three retired Air Force Colonels. The Colonels, all of which held command level positions at air wings which operate out of NF ARS, have recently penned a letter to Governor Cuomo stating that "construction of these turbines could indeed pose a serious encroachment threat into the MOA." Filing No. 174, p. 8. The reasons for the Colonels conclusion are threefold:

1. The current C-130 operations maintain a number of low level training routes (generally 500 feet above ground level (AGL), but as low as 300 feet AGL, on some routes. These routes depart NF ARS on a common departure path, in a northeasterly direction. In the area of the lake shore, east of Wilson, N.Y., the individual routes commence with a tum in various directions, as per the routes design. Additionally, there is an established high speed route, established primarily for fighter aircraft, that Is in the same general area and it is also cleared down to 300 feet AGL.

2. As the Air National Guard in its MQ-9 remotely piloted aircraft (RP A) mission, it is intended to station MQ-9 aircraft at NF ARS. Their mission would have the RP A depart NF ARS, proceed to Lake Ontario, and fly up to the Fort Drum ranges, utilizing the existing MOA and Page 22

restricted area over Lake Ontario. After the missiOn it would return to NF ARS and would transit the area of concern in its recovery to NF ARS.

3. The intended development area is in the flyway of migratory birds. We are concerned that a westerly shift in the flyway, as a result of the wind turbines, could heavily impact flight safety at NF ARS.

!d.

Similarly, a letter from Congressman Chris Collins to the Deputy Under Secretary of the Department of Defense, dated December 8, 2015, is enclosed as Exhibit 8. In the letter, Congressman Collins echoes the concerns of the three Colonels listed above. The Town has reason to believe that other politicians with constituencies in Western New York will shortly take similar, strong stances against the Project because of its anticipated impact NFARS.

Clearly, the potential exists for a serious encroachment on NFARS. The Project Scope should therefore include an in-depth, unbiased study of the Project's likely impact on NF ARS as a viable base, as well as NF ARS ability to withstand future BRAC scrutiny.

On a separate note, the PSS raises the highly concerning prospect that 11 [p ]roject construction may require modifications to constraining features such as ... bridges .... 11 As the Applicant is well aware, it may need to cross the Erie Canal in transporting oversize turbine parts and construction equipment. It is very possible that historic bridges over the Erie Canal may not be suitable for the Applicant's needs. As a result, the Applicant should conduct a study of optimal transportation routes, and provide a detailed list of bridges that will need to be modified in the course of the project. If historic structures and bridges are to be modified, the Applicant should describe the process for approval of the same as part of the PSS, and ensure all necessary stakeholders have been notified.

2.11 EFFECT ON COMMUNICATIONS

The PSS does not adequately address the impact on transportation and weather radars. First, the PSS fails to address how the Project might impact forecasting and tracking of lake effect snow bands over lake Ontario. See e.g. Wind farms interfering with weather radar in N.Y. , USA Today, http://usatoday30.usatoday.com/weather/research/ 2009-10-13-wind-farrns-weather-radar_N.htm (last accessed Jan. 11 , 2016). This issue should be thoroughly studied by appropriate government agencies, and included in the Project Scope.

Second, and more importantly, the Applicant completely fails to acknowledge that the Project will have an impact on Military and Defense radars emanating from the nearby 11 11 Niagara Falls Air Reserve Station ( NFARS ). Pursuant to a FOIL request to the DEC, Somerset obtained Exhibit 14, which is a copy of the DOD preliminary screening tool. Page 23

Exhibit 14 states: "[i]mpact likely to Air Defense and Homeland Security radars. Aeronautical study required." Further, given the opinion letter of three retired Air Force Colonels, Filing No. 174, this impact on radars should be viewed as another base-closing encroachment on NF ARS. Finally, although not expressly mentioned in the letter, it seems likely a long line ofwindmills could cause a radar blind spot within the MISTY-I MOA, thus hindering low level flight operations for drones and other military aircraft. The PSS should be modified to call for a federal or Department of Defense study thoroughly analyzing the impact of the Project on operational and defense radars, as well as the potential for causing radar blind-spots within the MISTY -1 MOA, particularly for low altitude flight operations.

2.12 SOCIOECONOMIC EFFECTS

On page 76 of the PSS, the Applicant makes the following misrepresentation: "Housing within the Project site is characterized by widely scattered, generally modest homes." PSS at 76. The PSS must be modified to include an accurate description of the high density of residential communities along the shore of Lake Ontario. An accurate description is particularly important because the turbines will likely be sited in close proximity to the more densely settled lake shore.

Further, the Applicant completely fails to address the socioeconomic impact of the potential closing of the Niagara Falls Air Reserve Station. The Project Scope must be modified to include this eventuality, and its likely impact on jobs, tax revenue, population, and housing prices.

The Applicant also sites heavily criticized studies in making the outrageous claim that "wind facilities have no significant impact on property values." PSS at p. 87. This statement is completely false, and the studies cited by the Applicant have been discredited as no more than wind industry propaganda pieces with little or no scientific value. Somerset has engaged expert appraiser Michael S. McCann to assist the Town in determine the Project's likely impact on property values. Mr. McCann concludes unequivocally that:

The studies cited in the [ ] PSS are deficient with respect to the extent and quality of the information needed to address the adverse impact of large scale turbines located in relatively close proximity to neighboring residential uses.

Exhibit 7, p. 3 (emphasis added).

In the same vein, the public comment of Peg and Paul Schwabe! dated December 21 , 2015, expressly incorporated herein as Exhibit 15, provides a withering criticism of the studies sited by the Applicant. The Applicant cannot be allowed to bury its head in the sand on the issue of property values.

In addition, on page 81 of the PSS, the Applicant states: "[b ]ecause [the Project] will not directly increase local municipal expenses, it will have no adverse impact on Page 24 municipal budgets." PSS at 81. Somerset disagrees with this assertion as it completely fails to address either the expense or revenue aspects of the Town's budget. The Project Scope should be modified to include a detailed analysis of impact on the Town's expenses, including first responder, and highway costs, and any other costs associated with the actual location of the turbines. Even more importantly, the Applicant's assertion is misleading because it fails to account for the anticipated dramatic reduction in property values, and therefore tax assessments.

With further regard to taxes, the Applicant seems to be relying on development of a PIOL T program. However, upon information and belief, neither Niagara County nor the Town of Somerset intend to agree to any such program at this time. As a result, the Applicant should show the anticipated taxes it will have to pay over the course of the Project.

In summary, the PSS is premature and inadequate because it fails to account for the economic impact of declining property values and tax assessments, and because it fails to account for the potential closing of NF ARS as a result of the Projects' encroachment on NF ARS airspace. The PSS should be stricken and resubmitted to adequately include these critical issues, and study of the same, in the Project Scope. At present, the Applicant states that ''[m]itigation measures to address economy, employment, population, and housing are not anticipated." PSS at 81. However, the PSS must be redrafted and the Project Scope should be broadened given the potential closing of NFARS and loss of 3200 jobs, the resulting exodus in population, and the severe drop in property values along the lake shore in the vicinity of the turbines. All of these factors will likely have an overwhelmingly negative impact on the local economy, and mitigating measures will be necessary.

As is the case with almost all sections of the PSS, the true socioeconomic impact of the Project is impossible to scope because the Applicant continues to conceal the actual locations of the turbines. If the turbines are built in close proximity to the highly residential lake shore, as is anticipated, the socioeconomic impacts on the Town could be devastating an irreversible.

2.13 ENVIRONMENTAL JUSTICE

The Applicant fails to adequately address the impact of the closure of NF ARS on Potential Environmental Justice Areas (PEJAs) located in Lockport, NY. If the Project's encroachment leads to the closure of NF ARS, there will likely be a huge impact on the environment of Niagara County as a whole. As such, a full environmental justice analysis is required in accordance with 16 NYCRR 1001.28. The PSS and Project Scope must be modified accordingly.

2.14 ELECTRIC AND MAGNETIC FIELDS

The Town reserves the right to comment further on this issue once the actual location ofthe Turbines is revealed. Page 25

2.15 EVALUATION OF ALTERNATIVES

To the extent this section of the PSS calls for a cost benefit analysis of the Project and alternatives, the Town does not believe the Applicant will provide an unbiased analysis of alternatives including the no action alternative. As a result, the Applicant, with stakeholder participation in the selection process, should engage an unbiased third party to evaluate the Project and its alternatives.

In addition, pursuant to 16 NYCRR § 1000.5(1)(2)(x), the Applicant must reveal all land leased or owned by the Applicant and any of its affiliates, including but not limited to Apex Clean Energy and its affiliates. A comparison of siting between the Project location and all other land available to the Applicant or its affiliates must be conducted. At present the Applicant will likely attempt to only evaluate land held or leased by Lighthouse Wind LLC. It is the Town's position that all land held by the Applicant's affiliates must be included in the evaluation of alternatives section. This would include all land owned or leased by the sole owner of the Applicant, Apex Clean Energy, and all of its affiliates.

Finally, the Applicant states the following factors indicate a high level of economic viability:

-sufficient wind resources; -laws allowing the development of wind energy facilities; -willing participant landowners with contiguous parcels large enough to support the Project; -potential for avoidance and/or minimization of significant environmental impacts; -relatively limited residential development; and -the presence of complimentary land uses.

PSS at 84.

However, in reality, none ofthe factors above counsel in favor of the Project. For example: ( 1) the Applicant has not shown that the proposed Project site has adequate wind resources; (2) the Laws of Yates and Somerset are not compatible with the Project (further comment below); (3) the Applicant refuses to reveal the amount of land under lease, and therefore has not shown it has contiguous parcels large enough for the project; ( 4) as demonstrated at length above, the Project will result in an environmental disaster for avian and bat species; (5) contrary to the Applicant's assertion, the turbines will be sited in the midst of a highly populated lakeshore region; and (6) farm, park, and residential land, and particularly waterfront resources, are categorically not compatible with industrial wind facilities. These realities must be adequately addressed in the PSS.

2.16 CONSISTENCY WITH THE NYS COASTAL MANAGEMENT PROGRAM AND LOCAL WATERFRONT REVITALIZATION PROGRAM AREAS Page 26

The Article X regulations require the Applicant to provide "a preliminary analysis of the consistency of the proposed facility with the enforceable policies of the New York State coastal management program or, where the action is in an approved local waterfront revitalization program area, with the local program." 16 NYCRR 10005(1)(2)(ix).

In the PSS, the Applicant admits that "[b ]ecause the project layout has not been finalized, it is unknown if any natural resources of the coastal area would be impacted by the construction or operation of the Project." PSS at p. 85. This statement demonstrates the prematurity of the PSS.

The Applicant further states in the PSS that it will provide "a thorough analysis of consistency with the NYS CMP and Local Waterfront Revitalization Programs (LWRPs) in the Certificate Application." PSS at p. 85. However, the Applicant is not allowed to remain silent until the application phase of Article 10, but is required to provide analysis of consistency in the PSS. Simply put, the Applicant does not provide any analysis in the PSS regarding consistency with either the NYS CMP or the Somerset LWRP. Instead, the applicant offers the conclusory statement that the proposed Project is anticipated to be consistent with all applicable policies of the New York State CMP and Somerset L WRP. PSS at p. 85. Although the Applicant lists 13 separate examples of consistency, those numbered items provide no analysis of consistency but only repeat the Somerset L WRP policies.

All conclusory statements regarding consistency should be removed from the PSS. The Applicant must comply with the Article 10 regulations and provide adequate analysis of the claimed consistency in the PSS. Specifically, methodologies to evaluate the Project' s consistency with the NYS CMP and Somerset's LWRP must be provided. These methodologies must include coordination with the New York State Department of State and the Town of Somerset.

2.17 BENEFITS OF THE PREFERRED ALTERNATIVE

Beyond income for the Lighthouse Wind and its affiliates, the Applicant must provide concrete, quantifiable examples ofthe Project's benefit.

2.18 DEMOGRAPHIC, ECONOMIC, AND PHYSICAL ATTRIBUTES OF THE LOCAL COMMUNITY

These comments are addressed in Section 2.12 above.

2.19 OTHER MATERIAL ISSUES RAISED BY THE PUBLIC

Somerset has reviewed numerous public comments on the DPS DMM website raising novel issues unique to the Project. The public comments referenced below are expressly incorporated herein. Additional novel issues are also raised below. All of the issues presented in this section should be included in the Project scope and may require additional study before the project proceeds. Page 27

A. Addition Unique Material Concerns

In addition to the comments cited above, the project raises various issues and concerns not addressed by the PSS. The following issues should be addressed in the Project scope, and studies and/or further research should be conducted to evaluate their potential impact.

1. Insect and Bee Fatalities

A recent scientific study by Michael Dillon and Lusha Tronstad, PhD, indicates industrial wind turbines result in lower numbers of insect in the wake of turbines. The study, Baseline Research for Long-term Effects of Wind Farms on Insects in Wyoming, available at http://www.uwyo.edu/wyndd/_files /docs/reports/wynddreports/ u13dil01wyus.pdf, concludes that "(t]urbines may directly reduce local insect abundance by increasing mortality of insects on turbine blades." Bees and insects play a key role as pollinators, and their death could severely impact agriculture in Somerset. Because the Project is proposed to be sited in a heavily agricultural area, this issue must be studied before the Project can proceed.

2. Effect on Orchard and Field Crop Pollination

This issue is tied to the issue above, however separate studies should be conducted to determine whether the industrial wind turbines have a detrimental impact on local agriculture.

3. Micro-climate Effects and Impact on Orchard and Crop Growing Season

The comment of Tom Staples, uploaded on Dec. 11, 2015, and the following comment of Cynthia Heller are expressly incorporated:

a. Comment by Tom Staples, 1211112015

Potential negative micro-climatic effects of large wind energy conversion systems to production of deciduous fruits and other sensitive crops which are grown near Lake Ontario.

Low temperature effects: Horticultural crops as well as fruiting vegetables are very sensitive to cold temperatures at various stages in their life cycles. Usually the most damaging events occur early in the reproductive cycle of the crop. (In apple this sensitivity begins from bud swell through green tip and continues through bloom and post-bloom) Critical temperatures are fairly well established by Cornell U. and Michigan State. Not only are the low temperatures important but also the length of time the plant is subjected to the temperature. Page 28

Often, a low temperature event occurs after sunset when winds diminish and allow cold air to settle near the ground. The severity of this cold event to the crop is determined by stage of growth, actual low temperature and the duration of the event. A large scale wind energy conversion system would exacerbate the negative effects of such an event by lowering the low temperature and increasing the duration of the event. This negative effect would be caused by 1) enhancing the diminishing of wind speed at the onset of the event (critical low temperatures achieved earlier in time) allowing for more radiation cooling and thus lower temperature and 2) increasing the duration of the event by diminishing the displacement of the cold air by wind after sunrise. Freeze and frost related damage to apples result in income losses for apples of as much as $25,000 per acre.

Similar negative effects are likely at harvest time for apples especially in late September through October and early November. Freeze damage will occur to fruit if subjected to prolonged sub 32 °F. The above described climatic event would apply as well. Significant losses to income will happen because the fruit will not be suitable for fresh consumption and or will have significantly shortened storage or shelf life.

High Temperature Effects: Just like previously described in Low Temperature Effects, a large scale wind farm will also affect critical high temperatures during the growing season. The wind farm will cause a diminished mixing of air during daytime when the crop depends on cooling winds that come on shore from Lake Ontario as well as southwesterlies from Lake Erie. Increased temperatures within the orchard would result in diminished respiration capacity which allow for greater stress to the plant which in tum leads to sunburn of the fruit and as well as other stress related effects. Very slight increases in orchard temperatures also increase disease pressure such as apple scab and fireblight, both of which are economically devastating to a fruit grower.

The temperature effects that have been described are most likely to occur when the wind speeds from ground level to the height of a turbine are less than 15 mph. If wind speeds are greater than that then the effect would certainly be diminished. Distance between a wind energy conversion system and the affected crop is also very important. The micro-climatic effects within the wind shadow of such a system are probably very complicated and deserve a very detailed analysis. Other potential effects that come to mind are wind shear, boundary layer changes and the potential effect on formation of hail storms. Page 29

It is my conclusion that a large scale wind energy conversion system should not be located within 5 miles of deciduous fruit acreage and furthermore not within 5 miles of south shore of Lake Ontario where there are soils suitable for future fruit production. Real-time studies of large scale wind energy conversion systems and their effect on freeze/frost events and other microclimate phenomena are needed.

Tom Staples 7366 West Somerset Rd. Appleton, NY 14008 [email protected] b. Comment by Cynthia Hellert

Honorable Kathleen Burgess,

As a year round resident of the Town of Yates, I am writing to request documentation which is not covered in the PSS filed by Apex. Specifically I do not see that micro-climatic effects of WECS is addressed. The project area encompasses fruit growing operations. 1001.28: Environmental Justice: Potential negative micro-climatic effects of large wind energy conversion systems to production of deciduous fruits and other sensitive crops which are grown near lake Ontario. Studies must be done to determine temperature effects caused by improper placement of IWTs during specific growing stages in the life cycle such as apples where sensitivity begins from bud swell through green tip and continues through bloom and post bloom. of equal importance is the negative effects caused by IWTS on critical high temps during the growing season. Apex has decided to place this project amid the best fruit growing area of the nation, not considering its impact. Studies are imperative, as fruit growing is an extremely important industry in this area. Since it appears that Apex has not addressed this issue in the PSS, Apex must re-file its PSS, addressing micro-climatic changes resulting from installation of IWTs or WECS, thus allowing the public another opportunity to comment.

Thank you.

Cynthia Hellert 11 061 Pratt Lane Lyndonville, NY 14098 Page 30

4. Lake Effect Snow and Potential for Increased Blade Icing and/or Ice Throw

The Applicant fails to address the impact of Lake Effect snow on the operation of industrial wind turbines, total yearly electrical output, blade icing, ice throw, or the viability of the project as a whole. The PSS must be modified and the Project Scope should be expanded to include a study of this critical issue.

5. The Potentia/for Increased Numbers of Crop Destroying Pests as a Result of Predator Die-Off (e.g. bats)

A recent study has estimated that wind turbines cause a high level of bat mortality. High bat mortality from wind turbines, Science Daily, http://www.sciencedaily.com/ releases/20I311I/ I3II0809I3I4.htm (last accessed Jan. II, 20I6). Bats play a key role in reducing levels of crop destroying insects. See e.g , Voracious bats scary to pests, UC Davis News and Information, http://news. ucdavis.edu/search/news_ detail.lasso?id= II340 (last accessed Jan. II , 20 I6).

Given that Somerset is largely agricultural with a high concentration of row crops and orchards, the Project Scope must include a detailed study of likely levels of bat deaths, how those deaths will impact populations of crop destroying insects, and whether higher levels of crop destroying insects could have a detrimental impact on agriculture in Somerset and Yates.

6. High Levels of Public Opposition to Project as Shown by Surveys Conducted by Yates and Somerset

The Project Scope should be modified to include an evaluation of public opinion as shown through scientific surveys conducted by the Towns of Yates and Somerset. Filing No. 164 presents a survey conducted by the Town of Yates. The Survey reveals 65% of respondents oppose the project. Survey Results are attached hereto as Exhibit 16. Similarly, Somerset conducted a survey that was recorded by the Town Board on June I7, 2015. The survey showed 67% of Somerset residents are opposed or strongly opposed to the Project if it involves the siting of 60-70 large wind turbines in the Town of Somerset. A copy of the survey is attached as Exhibit 17.

The Applicant has failed to consider the large levels of public opposition revealed by the attached studies. The PSS should be modified to include a consideration of public opposition, and the Siting Board should consider such opposition a major factor in determining the suitability of the project.

B. Comment Letter of Alice Sokolow, dated January 7, 2016

Alice Sokolow's comment letter is expressly incorporated herein as Exhibit 18. Page 31

C. Comment Letter of Richard Kohlman, dated January 9, 2016

Mr. Kohman's comment letter is expressly incorporated as Exhibit 19.

D. Comment Letter of Glenn Maid, dated January 11, 2016

Mr. Maid's comment letter is expressly incorporated herein as Exhibit 20.

E. Comment Letter of Georgeette Stockman, dated Jan. 11, 2016

Ms. Stockman's letter is expressly incorporated herein as Exhibit 21.

F. Comment Letter of Elizabeth Wolanyk, dated Jan.12, 2016

Ms. Wolanyk's letter is expressly incorporated herein as Exhibit 22.

G. Comment Letter of Paula M. Simon, dated Jan. 11, 2016

Ms. Simon's letter is regarding the Applicant's inadequate discussion of the Project's impact on bats is expressly incorporated herein as Exhibit 23.

H. Comment of Cemalettin Basaran, Phd, dated Jan. 11, 2016

[A]s a Summer Resident and Taxpayer I oppose the Wind Turbine Project. I consider myself an environmentalist, earth friendly liberal. I support renewable energy sources like wind and solar. My opposition to this project is due to its location and size of the turbines. Renewable energy sources can be constructed without destroying the earth and without destroying neighborhoods and communities, This project does not fit that profile. I am a Professor of Civil, Structural and Environmental Engineering at University at Buffalo, SUNY. I have studied the fundamentals behind wind power generation and visited similar size wind power farms around the US.

They all have same characteristics. Low frequency noise near these turbines is unbearable. Here is an abstract of a scientific study from Journal of Acoustic . Society of . America. 129 ( 6), June 2011

Low-frequency noise from large wind turbines Henrik M0llera) and Christian Sejer Pedersen Section of Acoustics, Aalborg University, Fredrik Bajers Vej 7-B5, DK- 9220 Aalborg 0, Denmark (Received 5 July 2010; accepted 20 December 2010)

As wind turbines get larger, worries have emerged that the turbine noise would move down in frequency and that the low-frequency noise would cause annoyance for the neighbors. The noise emission from 48 wind Page 32

turbines with nominal electric power up to 3.6 MW is analyzed and discussed. The relative amount of low-frequency noise is higher for large turbines (2 .3(, 3.6 MW) than for small turbines ( 2 MW), and the difference is statistically significant. The difference can also be expressed as a downward shift of the spectrum of approximately one-third of an octave. A further shift of similar size is suggested for future turbines in the 10-MW range. Due to the air absorption, the higher low-frequency content becomes even more pronounced, when sound pressure levels in relevant neighbor distances are considered. Even when A-weighted levels are considered, a substantial part of the noise is at low frequencies, and for several of the investigated large turbines, the one-third-octave band with the highest level is at or below 250 Hz. It is thus beyond any doubt that the low-frequency part of the spectrum plays an important role in the noise at the neighbors.

VC 2011 Acoustical Society of America. [DOl: 10.112111.3543957] PACS number(s): 43.50.Rq, 43.28.Hr, 43.50.Cb, 43 .50.Sr [ADP] Pages: 3727(,3744

These turbines should be built either far away from the shore line in the middle of the Lake or much smaller size so that the noise will not destroy our community and property values.

3. Required State and Federal Authorizations

The PSS must include "an identification of all other state and federal permits, certifications, or other authorizations needed for construction, operation or maintenance of the proposed facility." 16 NRCRR § 1000.5(1)(3). However, since the PSS omits substantial and necessary information about the Project it is currently impossible for the Town to identify and comment on what state and federal authorizations may be required for the Project.

4. Applicable State Laws and Regulations

The PSS must include "a list and description of all state laws and regulations issued thereunder applicable to the construction, operation or maintenance of the proposed facility and a preliminary statement demonstrating an ability to comply." 16 NYCRR § 1000 .5(1)( 4).

The PSS does not contain the required statement demonstrating an ability to comply with applicable state laws and regulations. Instead, the Applicant states that it "will include a full assessment of compliance in the Certificate Application." PSS at p. 91. The Applicant is not allowed to remain silent until the application phase of Article X, but is required to provide a statement demonstrating an ability to comply with state laws and regulations in the PSS. The Applicant must revise the PSS to include the required statement. Page 33

Finally, since the PSS omits substantial and necessary information about the Project it is currently impossible for the Town to identify and comment on all applicable state laws and regulations for the Project. The Town reserves its right to file additional comments as relevant information is revealed by the Applicant.

5. Local Laws and Regulations

The Article X regulations require that the preliminary scopmg statement contain the following:

a list and description of all local laws, and regulations issued thereunder, applicable to the construction, operation, or maintenance of the proposed facility and a statement either providing a preliminary assessment of an ability to comply or indicating specific provisions that the applicant will be requesting the Board to elect not to apply, in whole or in part, and a preliminary explanation as to why the Board should elect not to apply the specific provisions as unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality.

16 NYCRR § 1000.5(1)(5).

The PSS only contains a general table of local Somerset laws applicable to the Project with a short note whether the Applicant intends to comply with the local law or seek to have the Board not apply the local law. However, there is absolutely no explanation as to why the Board should elect not to apply any specific provision of Somerset' s local laws. The Article X regulations require that the Applicant provide an explanation as to why it believes the Project should not have to follow all applicable local laws. The Applicant must revise the PSS to include this required explanation.

In any event, Somerset does not concede that the Siting Board has the power to "waive" local laws in violation of Article IX of the New York State Constitution.

In addition, the Applicant is well aware of the fact that Somerset is in the process of revising its local laws applicable to the Project. Although Somerset included the Applicant in the revision process, and the Applicant has in fact actively participated in the revision process, the Applicant fails to mention anywhere in the PSS the fact that Somerset's local laws are currently being revised.

6. Description of the Applicant

On page 102 of the PSS the Applicant acknowledges that it is a wholly owned subsidiary of Apex Clean Energy Holdings, LLC. As a result, in analyzing alternatives to the Project, all holdings of Apex Clean Energy and its affiliates should be evaluated as potential alternative sites. To that end, the PSS should be resubmitted with a complete list Page 34 of land currently owned or leased by Apex Clean Energy LLC or its affiliates. The list should also state whether the land currently has industrial wind turbines, and if not whether necessary government approvals have been granted.

7. Description of the Applicant's Property Rights and Interests

The Applicant has not provided a description of its property rights and interests, and therefore the PSS should be stricken as premature and the Applicant should be required to file a new PSS with additional required information. The Applicant must be required to provide a full list of all land currently under lease. In addition, maps of the leased land should be provided in accordance with applicable regulations.

IV. CONCLUSION

In summary, the applicant has submitted an inadequate and premature PSS. However, even had the PSS included more than boiler-plate and unsupported, conclusory statements, the issues raised in Somerset's comments reveal threshold issues that no amount of study is likely to overcome. Specifically, there is a general scientific and government consensus that industrial wind facilities should never be sited on the shores of Lake Ontario. Industrial wind facilities near the lake shore will likely have a devastating impact on migrating birds. Also, the Project's certain encroachment on the Niagara Falls Air Reserve Station poses too great a risk to the future of the base and the economy of Niagara County as a whole.

Finally, given the Applicant's continued concealment of critical project details, its willful failure to follow its own PIP, its active discouragement of public participation, as well as its failure to address the serious threshold issues raised above, the Commission should strike the PSS and require a new PSS to be submitted. Further, given the Applicant's seemingly deceptive and potentially illegal use of the public comment section of the Commission's website, the Commission should require the Applicant to submit a new Public Involvement Plan, and the Article X siting timeline should be reset to that point. Further investigation by law enforcement officials may also be warranted. In any event, as the Applicant continues to reveal relevant information, the Town reserves its right to comment further on the PSS.

Very truly yours,

DCV/ bew/mcd En c. Page 35 cc: Gary Abraham, Esq. ([email protected]) Save Ontario Shores, Inc. 4939 Conlan Road Great Valley, NY 14741

Pamela Atwater ([email protected]) Save Ontario Shores Inc. 1097 Carmen Road Barker, NY 14012

Roger Barth ([email protected]) Save Ontario Shores, Inc. 1200 New Hampshire Avenue, NW Suite 800 Washington, DC 20036

Heather Behnke ([email protected]) Staff Counsel New York State Department ofPublic Service Three Empire State Plaza Albany, NY 12223

John Belson ([email protected]) Supervisor, Town of Yates 8 South Main Street Lyndonville, NY 14098

Mark Davis, Esq. ([email protected]) Lippes Mathias Wexler Friedman, LLP 665 Main St., Suite 300 Buffalo, NY 14203

Daniel Engert ( [email protected]) Supervisor, Town of Somerset 8700 Haight Road PO Box 368 Barker, NY 14012

Daniel Fitzgerald ([email protected]) Project Manager Apex Clean Energy 90 South Swan Street Suite 308 Albany, NY 12210 Page 36

Daniel Fitzgerald ( [email protected]) Project Manager Apex Clean Energy 310 4th Street NE Suite 200 Charlottesville, VA 22902

Charles Malcomb, Esq. ([email protected]) Hodgson Russ LLP The Guaranty Building 140 Pearl Street Suite 100 Buffalo, NY 14202

James Muscato, Esq. ([email protected]) Y oung/Sommer LLC Executive Woods 5 Palisades Drive, Suite 300 Albany, NY 12205

Michael Norris ( [email protected]) Seaman Norris LLP 7 44 Davison Road Lockport, NY 14094

Taylor Quarles ([email protected]) Development Manager Apex Clean Energy 310 4th Street NE Charlottesville, VA 22902

John Riggi ([email protected]) President Save Ontario Shores, Inc. PO Box 57 Lyndonville, NY 14098

Michael Saviola ([email protected]) Associate Environmental Analyst New York State Department of Agriculture & Markets 1530 Jefferson Road Rochester, NY 14623

James Simon (jamesjsimon11 @gmail.com) Town of Yates Supervisor-Elect Millers Road Lyndonville, NY 14098 Page 37

Daniel Spitzer, Esq. ([email protected]) Hodgson Russ, LLP The Guaranty Bldg. 140 Pearl Street Suite 100 Buffalo, NY 14202-4040

Henry Spliethoff ([email protected]) Research Scientist New York State Department of Health Corning Tower 1743 Empire State Plaza Albany, NY 12237

John Syracuse ([email protected]) 6091 Condren Newfane, NY 14108

Randall Wayner ([email protected]) Town of Somerset- Councilman P.O. Box 248 Barker, NY 14012

Lawrence Weintraub, Esq. ([email protected]) Assistant Counsel, Office of General Counsel New York State Department of Environmental Conservation 625 Broadway Albany, NY 12233-1500

Tara Wells, Esq. ([email protected]) Senior Attorney NYS Dept. of Agriculture & Markets 1OB Airline Drive Albany, NY 12235

James Whipple ([email protected]) County of Orleans Industrial Development Agency Albion, NY 14411

*All cc via DMM website and individual email. EXHIBIT 1 United States Department of the Interior

FISH AND WILDLIFE SERVICE 3817 Luker Road Cortland, NY 13045

May 6, 2015

Mr. Dave Phillips Environmental and Wildlife Permitting Director Apex Clean Energy, Inc. 246 East High Street Charlottesville, VA 22902

Dear Mr. Phillips:

This letter is in regards to our meeting of March 17, 2015, to discuss the proposed Lighthouse wind energy project. The 200-megawatt project is planned for the Town of Somerset, Niagara County and Town of Yates, Orleans County, New York. Meeting attendees included you and Dan Fitzgerald of Apex Clean Energy, staff of the New York State Department of Environmental Conservation (NYSDEC), and staff of the U.S. Fish and Wildlife Service (Service). We appreciate the opportunity to discuss this project with you.

Our review and comments are being provided pursuant to the Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668-668d), Endangered Species Act of 1973 (ESA) (87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.), and Migratory Bird Treaty Act (MBTA) (40 Stat. 755; 16 U.S.C. 703-712). We may provide future comments under the BGEPA, ESA, and MBTA, as well as the Clean Water Act (CWA) of 1972 (33 U.S.C. §1251 et seq.), which is administered jointly by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency in coordination with the Service under the Fish and Wildlife Coordination Act (48 Stat. 401 , as amended; 16 U.S.C. 661 et seq.), as applicable.

The purpose of the meeting was to provide Apex staff with an overview of wildlife studies conducted by the Service within the western portion of the project area during the Spring of 2013. Specifically, staff from the Service's Midwest Region's Regional Office conducted acoustic and mobile marine radar studies during a portion of spring migration to gain knowledge of bird and bat movement along the south shore of Lake Ontario. This was part of a larger effort by the Service to study sites around the Great Lakes Watershed to inform the siting of wind energy projects. Data from the study are still being analyzed and the information will be summarized in a report that will be released in the near future. A similar fall migration study has not been completed, but may provide important information on wildlife use at that time of year. The Service indicated during the meeting that the preliminary review of the radar data shows very large scale movement of wildlife, most notably birds and bats flying north toward the project area during migration. However, upon approaching Lake Ontario, many of the individuals turn east and follow the shoreline rather than crossing the lake. This west to east movement would force them to fly through the wind turbines that are proposed parallel to the shoreline. This increases their potential exposure and risk if wind turbines were built within this area. Furthermore, the data indicate that those nocturnal migrants who approach the shoreline at dawn tend to "fall out" of the sky, looking for areas where they can stop to rest and feed until migration resumes the following evening. In the case of passerines, this could be a variety of habitats such as wooded areas, wetlands, and stream corridors. However, for waterfowl this could include open land such as pastures and crop fields as well as wetlands or the lake. This behavior of landing in and near the lake shoreline may put their path of flight from higher altitudes down to ground level and back each day directly through the rotor swept zone of wind turbines constructed in the project area, also increasing the risk of collision.

To study the wildlife in the project area, Apex has prepared a plan titled Avian and Bat Study Plan for the Proposed Lighthouse Wind Project (Plan). This Plan includes monitoring bald eagle (Haliaeetus leucocephalus) movement, migrant raptor movement, breeding bird surveys, bat acoustic monitoring, threatened and endangered species habitat surveys, and winter raptor surveys. The following are our comments on the Plan.

Bald Eagles

Bald eagles are known to use the project area during spring and fall migration and also during the winter for roosting. Bald eagle surveys were started in December 2014 after consultation with the Service and NYSDEC on the study protocol, and will continue for one full year in accordance with the 2007 National Bald Eagle Management Guidelines. This document, which can be found at http://www.fws.gov/northeast/ecologicalservices/eagle.html, was developed to assist with project planning and to minimize impacts to bald eagles. Measures to conserve eagles and their habitat have also been provided in guidance developed by the Service (for more information see http://www.fws.gov/windenergy/eagle guidance.html). Please note that since the surveys have started, an active bald eagle nest has been observed in the project area. We recommend you contact NYSDEC staff in their Region 9 Office (Anne Rothrock; phone number 716-372-0645) for more information on this nest. Given that a nest was recently found in the project area, additional monitoring may be needed. Following the collection of the bald eagle surveys, the Service recommends that a meeting be held to discuss the results and potential risk to this species.

Bald eagles are no longer federally-listed under the ESA; however, bald eagles, along with their foraging and winter roosting habitat, remain protected pursuant to the BGEPA. Any take1 and/or disturbance of bald and golden eagles (Aquila chrysaetos) is strictly prohibited under this Act.

1 The Act provides criminal penalties for persons who "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle ... [or any golden eagle}, alive or dead, 2 ------

Migratory Raptors

A migratory raptor survey will be conducted by Apex at 12locations from March to early December_ We previously requested that in addition to the data noted in the Plan, that the altitude of flying birds be recorded during these surveys. It should be noted with this and other seasonal surveys that weather conditions can greatly affect timing and location of wildlife movement. Therefore, one survey year may not be sufficient to document the temporal and spatial variation of wildlife use in the project area and additional surveys may be required.

Breeding and Migratory Birds

For breeding bird surveys, the Plan indicates the size of the transects used, but not the number of transects. This should be added to the Plan. We recommend breeding bird surveys be completed along transects at 50 meter intervals for a period of at least 5 minutes_ The transects should be established in both the project area and control areas to establish baseline conditions. These surveys should be replicated at least three times during June. If the project is built, all transects should be resurveyed to determine any potential displacement effects. It is predicted that most of the project turbines will be constructed in open fields and consequently where the transects are proposed. However, as we stated above, the forest, shrub and riparian habitats are important as well and these areas should be surveyed too.

It appears that the proposed project may affe.ct species under the Service's jurisdiction pursuant to the MBTA. Migratory birds, such as waterfowl, passerines, and raptors are Federal trust resources and are protected by provisions of the MBTA. The Service is the primary Federal agency responsible for administering and enforcing the MBTA. This Act prohibits the taking, killing, possession, transportation, and importation of migratory birds, their eggs, parts, and nests except when specifically authorized by the Service. The word "take" is defined as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect." The unauthorized taking of birds is legally considered a "take" under the MBTA and is a violation of the law. Neither the MBTA nor its implementing regulations, 50 CFR Part 21, provide for permitt.ing of "incidental take" of migratory birds that may be killed or injured by wind projects. However, we recognize that some birds may be killed at structures such as wind turbines even if all reasonable measures to avoid it are implemented. Depending on the circumstances, the Service's Office of Law Enforcement may exercise enforcement discretion.

or any part, nest, or egg thereof_" The Act defines "take" as "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb." "Disturb" means: "to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, I) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior."

3 Apex has proposed to use two acoustic detectors mounted on one meteorological tower in the project area to collect bat calls. One detector will be mounted at 3 meters above ground level, but the height of the other detector is not provided. No infonnation is provided on the software to be used to screen the calls. We find that the protocol lacks sufficient details and should be revised. The bat acoustic surveys proposed for the project area should follow the 2015 Range Wide Indiana Bat Summer Survey Guidelines (April2015) and can be found at http://www.fws.gov/midwest/Endangered/mammals/inbalinbasummersurveyguidance.html. Once the survey protocol has been revised, we recommend that Apex submit a copy to the NYSDEC and the Service for review.

Acoustic data was gathered by the Service in the Spring of2013, but has not yet been provided to our office. We believe this could be important information particularly in light of the recent (April2, 2015) listing of the Northern long-eared bat (Myotis septentrionalis) (NLEB) as a threatened species under the ESA. Additional information regarding NLEB can be found at (http://www.fws.gov/midwest/endangered/mammals/nlbalindex.html). This species, which was previously documented in Niagara County, has been observed at the Iroquois National Wildlife Refuge approximately 16 miles to the south and is known to hibernate in mines approximately 22 miles south of the project area. It is important to note that several NLEBs have been killed by wind turbines in western New York in previous years. Additional coordination between Apex and the Service will be needed once studies have been completed and data analyzed on this species potential presence in the project area.

The ESA prohibits unauthorized "take"2 offish and wildlife species listed as endangered or threatened. The take prohibition for listed species applies to all individuals, companies, and organizations. The Service encourages all non-federal landowners and project developers to implement measures to avoid and minimize impacts to NLEB. Any unauthorized take is a violation of Section 9 of the ESA, and can be prosecuted. However, note that if take is unavoidable, a non-federal project proponent is advised to develop a habitat conservation plan (HCP) and apply for an incidental take pennit from the Service, pursuant to section 10 ofthe ESA. The Service is available to provide technical assistance in the preparation of an HCP.

Appendix A of the Plan includes a General Avian and Eagle Use Survey Protocol which describes passerine and raptor plot surveys conducted during spring and fall migration. Eleven plots have been established in the project area and one outside along the lake shoreline. These surveys should be conducted twice per week during the survey period instead of the proposed weekly interval. The survey interval for each should be 5 minutes, commencing after a few minutes of quiet time to limit the influence of human disturbance.

2 Section 3 of the ESA defines "Take" as, "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The term "Harm" is further defmed by the FWS to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns such as breeding, feeding, or sheltering. "Harass" is further defined by the FWS as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering. 4 ------

In conclusion, the Service strongly recommends that Apex carefully consider the potential effects of the Lighthouse wind project design, construction, and operation on wildlife, including protected bats and migratory birds. The project is proposed in an area known to have very high avian activity as evidenced by the studies completed to date. Based upon that information, the risk to wildlife from operating wind turbines could rise to severe levels. Previously, the Service has recommended that wind energy projects be constructed at least three miles from the shoreline of the Great Lakes to reduce this risk. We believe that Apex should consider the regulatory requirements of the ESA, BGEP A, and MBTA in determining whether this site constitutes an appropriate placement for this project in light of current wildlife activity at this site. We request that Apex provide the Service with any revised protocols for our review. In addition, we suggest Apex, the NYSDEC, and the Service meet to discuss any data collected in the near future.

The Service will continue to provide technical assistance to Apex on this project. If you have any questions, please contact Tim Sullivan at the New York Field Office at 607-753-9334.

Sincerely, ~~?J &L_ Q/.1.-t_ David A. Stilwell I Field Supervisor

cc: Apex Clean Energy, Inc. (Dan Fitzgerald) NYSDEC, Avon, NY (M. Wasilco) NYSDEC, Albany, NY (B. Gary) NYSDEC, Buffalo, NY (C. Adams) USFWS, Minneapolis, MN (J. Gosse)

5 EXHIBIT 2 From: Dav1s. Andrew COP$) To: de Waal MaleM J1m CDPS> Subject: FW: Lake Ontario Migratory Bird Stopover Technical Report Date: Friday, October 02, 201S 3:10:00 PM Attachments: lake-ontano-magratory-bard-S1Qpoyer-techn1Cal-reoort Pdf

FYI - per our discussion re: Lighthouse Wind project.

From: Edick, Rudyard (DEC} Sent: Thursday, October 01, 2015 2:24PM To: Davis, Andrew (DPS} Subject: Lake Ontario Migratory Bird Stopover Technical Report

This is the repor t that Heidi sent me and that I promised to forward to you.

From: Kennedy, Heidi E (DEC} Sent: Friday, September 11, 2015 10:08 AM To: Edick, Rudyard (DEC}; Rende, Emilio (DEC}; Landry, Jenny A (DEC}; Jones, Scott (DEC}; Wasilco, Mike R (DEC}; Rosenburg, Charles P (DEC}; Rothrock, Anne 0 (DEC}; Adams, Connie M (DEC}; Gary, Brianna M (DEC} Cc: Weintraub, Lawrence H (DEC}; Hogan, Chris M (DEC}; Denk, David (DEC}; Sheeley, Scott E (DEC} Subject: Re: Response Needed by 11 Sept to Commissioners Office on Avian Issues from Apex Lighthouse Wind Project.

Hi Edick- I basically agree with the comments listed below (see a few of my comments below in red). See the attached study for a lot of good information. Heidi

From: Edick, Rudyard (DEC) Sent: Wednesday, September 02, 2015 5:01 PM To: Rende, Em ilio (DEC}; Landry, Jenny A (DEC); Jon es, Scott (DEC); Wasilco, Mike R (DEC}; Rosenburg, Charles P (DEC}; Rothrock, Anne 0 (DEC}; Adams, Connie M (DEC}; Gary, Brianna M (DEC}; Kennedy, Heidi E (DEC) Cc: Weintraub, Lawrence H (DEC}; Hogan, ChrisM (DEC}; Denk, David (DEC); Sheeley, Scott E (DEC} Subject: Response Needed by 11 Sept to Commissioners Office on Avian Issues from Apex Lighthouse Wind Project.

Good Afternoon Lighthouse Wind Review Team,

I received a request to respond to the Commissioner's Office w/r to a letter from Save our Shores (SOS), a group organized in opposition to the Apex Lighthouse Wind Project. They quote Genesee Valley Audubon Society, Hawk Migration Association of NA, Federation of Monroe Cty Environmentalists, and US FWS on their opposition to the project. I have written out their key concerns below, organized by group listed below. I stuck to the alleged quot es from each organization.

Please let me know your thoughts on each of these points so I can put together a response that expresses regional and central office perspective on the issues. The Commissioner is a member of the 7 board panel that ru les on these Article 10 projects. If you cou ld get me a response by 11 September, I would be grateful.

Genesee Valley Audubon Society is making the following statements regarding Apex lighthouse Wind Project (according to "Save Our Shores" letter to the DEC).

"placing wind turbin es in the proposed location will put millions of birds in danger of collision with the turbines. We need green energy but not at this cost." - I agree thrs rs d( ttntt Ply one of the biggest rssues for tht pr OJC:'Ci The area alnng lht ,outhen1shore of lake Ontario is crrllcal for rnrgratory btrds as stopover habitat, and the habttat wrthtn a several km of Lake Ontarto (the site of the proposed project) has been shown to have a htgh nchness and abundance of rn gratory birds dunng both spnng and fall mrgratton

"Lake Ontario is a critical migratory corridor for raptors and is not a good location for large scale wind turbine facility because of the impact it will have on raptors including eagles." ~ 1oror cc ur s 1t nearby lt1w~ w1tche ~l'">ng lake 011tJrro ~ Jppor1 lhrs darm. At Brad1od P y •1, verage of 50,000 raptors rncluding up to 17 specres are tallietJ each spring from March through may. The highest ever count in a single season totaled more than 144,000 raptors.

"Therefore, it is not a suitable region for large industrial wind turbine facilities ... development of wind turbines along the south shore of Lake Ontario is ill advised, the cost in birds and wildlife will be too high for NYS."

The Hawk Migration Association of North America is making the following statements regarding the same:

"HMANA is concerned about the threat posed by industrial wind energy developments to migrating, nesting and wintering raptors. Wind conditions favorable for industrial wind energy projects frequently coincide with locations where concentrations of migrating raptors occur."

"' _ n ~" t ;:r ve :.ence of endangered 5hort eared owl wrntenng on the prOject stte

"APEX's plan to site industrial wind turbines along the south shore of Lake Ontario has the potential for disastrous-and irreversible- long term effects as the south shore of Lake Ontario concentrates migrating raptors, hosts many nesting bald eagles, provides important staging areas for migrating waterfowl and passerines, and includes areas officially designated as Important Bird Areas." agr('t. I "ifw f ll r '::. laraso rr PI n .. hep-r,e-. cJ t ttef.- nposed project srte at the lroquors/Tonawanda/Oak Orchard wetland complex there are 4 bald eagle nests

"It is imperative that local municipalities and state and federal agencies establish setbacks from the south shore of Lake Ontario of at least three miles, under which industrial wind turbines projects are prohibited ... six mile setbacks from Great Lake shorelines are more advisable." 1 r tl ....,,.,,1 ro e Lr.,. 1\r: 1r a r ·r t t ~J t-.atural Heritage. That study (see attached) showed thac 1n the fall the band of higher concentratron of mrgr ants

r "" a •·or- the .:1 e tf .:1 tf ~ ~ ~ es The Federation of Monroe County Environmentalists (FMCE) also agrees with a three mile setback and add the following statements:

"beyond this setback range, extensive multiple year studies are warranted to determine if wind turbine siting is possible." dgree based on r11e 1p1Jr x 1r t ly rilf r .eP r • h fall from the NC stu iy

"The size of the Lighthouse Wind project makes the stakes in our case even greater. These towers will be so large that removal w il l not be economically feasible."

"FMCE supports a three to six mile wind turbine setback from the shores of the Great Lakes."

The US Department of the Interior Fish and Wildlife Service, in commenting on the APEX proposal said,

"the project is proposed in an area known to have very high avian activity. .. based upon that information, the risk to wildlife from operating wind could rise to severe levels. Previously the Service has recommended that wind energy projects be constructed at least three miles from the shoreline of the Great Lakes to reduce risk." ? r

"US FWS Region 4 Guidance specifies the Niagara Escarpment as an area where siting of wind turbine projects should be avoided." EXHIBIT 3 Genesee Valley Audubon Soceity

Dec. 28,2015

June Summers

Genesee Valley Audubon Society

208 Rhea Crescent

Rochester, NY 14615

Hon. Kathleen H. Burgess Secretary to the Commission New York State Public Service Commission Agency Building 3 Albany, NY 12223-1350

Re: Comments on the Lighthouse Wind Project Preliminary Scoping Document, Case No. 14-F-0485

Honorable Secretary Burgess,

I am writing on behave of the Board of Genesee Valley Audubon Society. Thank you for the opportunity to comment on the Lighthouse Wind Project Preliminary Scoping Document, Case No. 14F-0485. The proposed location of the Lighthouse Wind Project is the south shore of Lake Ontario and straddles the Orleans/Niagara County line. The construction of the Lighthouse Wind Project would permanently alter the landscape of this area. The south shore of Lake Ontario is a migratory bird corridor. Wind turbine projects are known to cause mortality for migratory birds and bats. In the Lighthouse Wind Project Preliminary Scoping Statement, Table 4, pgs. 46-47, list twenty six bird species of threatened, endangered, birds of conservation concern and species special concern and one federally threatened bat. All of these species will be at risk of colliding with the blades if this or other wind projects are built along the south shore of Lake Ontario. Neotropical migratory birds have a number of environmental and manmade stressor on their populations, wind projects need to be sited with this in mind , the shore of Lake Ontario is not the place for wind projects.

We commend Apex Clean Energy, Inc., and Ecology and the Environment, Inc. for their thoughtful and through plan to monitor both breeding and migratory birds in the site area. The plan described is comprehensive but, short sighted. This survey took place for one year; anything less than three is insufficient. Bird and bat migrations are effected by the weather, at least three years of data is need to give a true picture of what happens during both seasons of migration.

Wind projects should not be located along the south shore of Lake Ontario; it is a migratory corridor for birds and bats and will adversely affect many of their populations.

Respectfully, f~!?~ June Summers President

EXHIBIT 4 ~

L..--A?~;;.....__.; Genesee Valley Audubon Society

June 11, 2015 208 Rhea Crescent """c::? ,..., c.n Rochester, NY 14615 - '(,., c::"'tl <-::: ') nw:r -or-r> - -== ~oc Department of Public Service -.:.!cr.n ' ' lr·~i;; Kathleen H. Burgess, Secretary • (./"1 :!·~ Siting Board ~-: :· .: .. ' 3 Empire State Plaza G r"l Albany, NY 12223-1350 c.n < • 0 Dear Energy Siting Board,

Thank you for the opportunity to comment on lighthouse Wind, an Apex project located in Niagara and Orleans County. Genesee Valley Audubon Society supports green energy, including wind energy when sited to minimize the impact on birds and other wildlife. The lighthouse Wind project in the Towns of Somerset and Yates proposed by Apex is in a critical migratory corridor for raptors and small migratory song birds. Placing wind turbines in the proposed location will put millions of birds in danger of collision with the turbines. We need green energy but not at this cost.

Enclosed is the American Bird Conservancy's (ABC) Wind Development Bird Risk Assessment Map (Enclosure 1) which highlights the critical avian migratory corridors around Lake Ontario in orange (yellow). The second enclosure is the ABC's risk assessment map (Enclosure 2); three raptor observatories, Beamer Conservation Area, Braddock Bay, and Derby Hill, that are along the south shore of Lake Ontario are marked. Also enclosed is a table of the previous three years of data (Enclosure 3) collected by the three raptor observatories.

Inspection of the enclosed maps and data should make it obvious that the south shore of Lake Ontario is a critical migratory corridor for raptors and is not a good location for a large scale wind turbine facility because of the impact it will have on raptors including eagles.

From 2009- 2011 The Nature Conservancy, Audubon New York and the New York Natural Heritage Program conducted a field study to test some key hypotheses on migratory stopover habitat for small neotropical migratory birds along the south shore of lake Ontario. The purpose in doing so was to learn more about characteristics of these habitats that are difficult to distinguish in remote images. The results were used to create maps predicting where important stopover habitat is and to hone management recommendations. As you can see on the resulting Migratory Bird Stopover Habitat map (Enclosure 4) the area proposed for lighthouse Wind project has areas shaded in yellow to deep orange. This shading indicates areas predicted to have high to very high abundance and richness of migratory birds during spring and fall migration. This probability of richness during spring and fall migratory season indicates an increased risk of impact to birds by wind turbines placed in this region. Also on this map directly south of the proposed lighthouse Wind project is the Iroquois National Wildlife Refuge, Tonawanda and Oak Orchard Wildlife Management Areas. This l shaped complex is marked by cross hatching. This wildlife complex provides waterfowl and other birds an important migratory haven. When these resting waterfowl resume their migration they will head direcdy north into the Ughthouse Wind project and on hazy, foggy days the duck could collide with the turbines.

The maps and data endosed show that the south shore of Lake Ontario is a critical migratory corridor for both raptors and other neotropical migratory birds. Therefore, it is not a suitable region for large Industrial wind turbine facilities. The Ughthouse Wind or any other large scale wind turbine facility along the lake shore will put millions birds endanger of collision and death. Development of wind turbines along the south shore of lake Ontario Is ill advised, the cost In birds and wildlife will be too high for New York State.

Respectfully, &~ June Summers .. .;.~Jf.:4: ' ""

American Bird Conservancy Wind Development Bird Risk Map High Importance, Key Migration Corridors where bird risk will differ from season to season, and may also differ from year to year. Red: Critical Importance, Wind power is not appropriate for any of these areas and their immediate environs. American Bird Conservancy Wind Development Bird Risk Map Raptor Observatories marked; Beamer Conservation Area, Braddock Bay Raptor Research, and Derby Hill Raptor Observatory Endosure3

Lake Ontario South Shore Hawk Watch Fadlftles

Beamer Niagara Braddock Bay Raptor Derby Hill Hawkwatch Peninsula Hawkwatch Research Hawkwatch

Total Bald Golden Total Bald Golden Total Bald Golden Raptors Eagle Eagles Raptors Eagles Eagles Raptors Eagles Eagles

2012 14,432 57 12 79,530 450 43 51,249 589 72

2013 12,209 62 8 75,520 648 25 47,417 673 60

2014 11,671 43 5 63,945 459 64 56,877 722 71 Enclosure 4

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October 29, 2015 2PI5 ~ "1 1 ' 13 Ul 9=22

Honorable Kathleen H. Burgess Secretary of the Commission New York State Public Service Commission Empire State Plaza Agency Building 3 Albany, NY 12223- 1350

Dear Ms. Burgess,

Thank you for the opportunity to comment on the Apex Lighthouse Wind located in the Towns of Somerset, Niagara County and Town of Yates, Orleans County, New York. The Rochester Birding Association (RBA) supports wind energy as an alternative to fossil fuel power generation, provided that the facilities do not cause undue harm to nesting and migrating birds. The Lighthouse Wind project, however, is in a critical migratory corridor for raptors, migratory songbirds and shorebirds. The western NY southern shore of La ke Ontario is also important migratory, breeding and wintering habitat for grassland birds. Placing wind turbines in the proposed location will put millions of birds in danger of collision with the turbines. We need green energy but not at this cost.

Site Evaluations Are Necessary Prior to Project Approval

When wind farms are located in areas heavily frequented by migratory and nesting birds, many deaths have occurred. Bat mortality has also been high and, in some cases, exceeded bird deaths. To ensure that wind farms are located where bird and bat deaths will not jeopardize the population of any species, RBA believes that scientific site evaluations must be conducted before wind turbines are approved by the responsible governmental authorities. These studies must be conducted by qualified researchers using accepted scientific methodology and include technologies such as remote sensing and radar imaging to establish the patterns of bird migration and nesting in the vicinity of the proposed wind farm. Multi-year evaluations must be conducted if a proposed location is found to have particular sensitivity to bird and bat activity as is the area of the proposed Lighthouse Wind project. Again, site evaluation must take place before the wind farm location receives governmental approval.

The Southern Shore of Lake Ontario is an internationally recognized major migratory route for birds

The south shore of Lake Ontario is an internationally recognized major migratory route for birds. Observational data is regularly monitored and maintained by the Rochester Birding Association and others, such as Braddock Bay Raptor Research, Braddock Bay Bird Observatory, Hawk Migration Associations of North America, (HMANA) and Buffalo Ornithological Society on locallistserves, the eBird database, Christmas Bird Counts, and the New York State Ornithological record. This data shows that the region within one to six miles of the shoreline is a major migratory pathway for migratory song birds and raptors. The western NY southern shore of La ke Ontario is also important migratory, breeding and wintering habitat for grassland birds. Birds rest and refuel in the lakeshore region during their biannual migrations. Significant scientific studies by Audubon NY and The Nature Conservancy in the last ten years have also documented the significance of this corridor. pro!es;t Area Oyedaps with Established Audub9n NY Grassland Bird 8reedlns Focus Arta

Audubon New York, with support from the New York State Department of Environmental Conservation (NYSDEC), is coordinating a comprehensive grassland bird conservation effort In New York State-a conservation priority hiahllahted in New York's Comprehensive Wildlife Conservation Strategy. A significant portion of this Initial effort culminated with the drafting and implementation of a grassland bird conservation plan (Morgan and Burger 2008). The focus of this conservation effort is on regions of the state that have the highest likelihood for sustaining grassland bird populations on a long-term basis, they identified regions where conservation efforts would be effective and would help identify priorities for the comprehensive statewide conservation plan. The Ughthouse Wind project in the Towns of Somerset and Yates proposed by Apex is in the area designated by this study as Focus Area 1, chosen because the breeding bird atlas surveys have shown the majority of target species to breed in the area, see Table 1 and Figure 3.

In New York, grassland bird population declines are linked strongly to the loss of agricultural grasslands, primarily hayfields and pastures. Because the vast majority of grasslands in New York are privately owned hayfields and pastures, it would be impossibly expensive to protect all of them through conservation programs that focus on acquisition and management of public lands. Therefore, regions of the state where grassland birds are most likely to persist, i.e. focus areas, have been identifted and will be targeted for surveys and monitoring and serve to focus conservation resources-particularly incentive programs that encourage proper management of private lands, although proper management of publicly-owned lands in these areas is also important to this effort.

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2of5 ProJect Area Overlaps with Known and Important Migratory Stopover Areas Along The lakeshore

From 2009- 2011 The Nature Conservancy, Audubon New York and the New York Natural Heritage Program conducted a field study to test some key hypotheses on migratory stopover habitat for small neotropical migratory birds along the south shore of Lake Ontario. The purpose in doing so was to learn more about characteristics of these habitats that are difficult to distinguish in remote images. The resu lts were used to create maps predicting where important stopover habitat is and to hone management recommendations. As you can see on the resulting Migratory Bird Stopover Habitat map, Figure 1, the area proposed for Lighthouse Wind project (outlined in black) overlaps with areas predicted to have high to very high abundance and richness of migratory birds during spring and fall migration. Figure 2 shows the expanded use of agricultural areas in fall. Rusty Blackbird, for example, is one example of a "Vulnerable" species (IUCN Redlist) that is dependent on the lakeshore area during migration.

This probability of richness during spring and fall migratory season indicates an increased risk of impact to birds by wind turbines placed in this region. Also on this map, directly south of the proposed Lighthouse Wind project, lies the Iroquois National Wildlife Refuge, and Tonawanda and Oak Orchard Wildlife Management Areas (this l-shaped complex is marked with cross hatches). This wildlife complex provides waterfowl and other birds an important migratory pathway and it is to be expected that when these resting waterfowl resume their migration they will head directly north into the lighthouse Wind project. The same is true heading south in the fall. On hazy, foggy days these waterfowl are likely to collide with wind turbines.

The lake Ontario Migratory Bird Stopover Project found, as Banter et al. (2009) did, that spring migrants were generally strongly correlated with developed cover, particularly when considering a large landscape context (3-6 miles). However, in the fall, migrants were actually positively correlated with agricultural cover with in six miles of Lake Ontario (Figure 2). This interaction between landscape cover and distance from the lake demonstrates that after crossing lake Ontario migrants rest and refuel along the lakeshore in isolated wooded patches in the agricultural expanse between Buffalo and Rochester.

World Class Raptor Migration Occurs on the Southern Lake Ontario Shoreline

The southern Ontario Lakeshore concentrates raptors (hawks, owls, eagles) in high numbers during their biannual passage. Indeed, raptors numbers have been counted at the Braddock Bay Hawkwatch since 1949. This hawkwatch, administered by Braddock Bay Raptor Research, is a member hawkwatch of the Hawk Mountain Migration Association (HMANA). On a single day in April of 2011, more than 42,000 raptors were counted by professional hawkwatchers. The next year, on April 2ih, another 37,000 hawks were counted in a single day (see Braddock Bay Hawkwatch summaries, below). This demonstrates the potential for mass avian mortality should a day's favorable winds direct birds toward the lighthouse Wind Project.

HMANA's wind power policy calls for no wind power development in areas with landscape features known to attract raptors (such as interior ridges and the coastlines of the Great Lakes, Gulf of Mexico and the Atlantic and Pacific Oceans), in areas formally designated as Important Bird Areas, and in areas that experience concentrations of wintering, nesting and migrating raptors.

Apex's plan to site industrial wind turbines along the south shore of lake Ontario has potential for disastrous-and irreversible-long-term effects as the south shore of Lake Ontario concentrates 3 of 5 migrating raptors (including significant numbers of the very fragile population of northeastern Golden Eagles), hosts many nesting Bald Eagles, provides important staging areas for migrating waterfowl and passerines, and includes areas officially designated as Important Bird Areas. Arguably the whole south shore of Lake Ontario could qualify as an IBA.

Because of the concentration on Lake Ontario of migrating raptors and other birds, as well as nesting eagles and other birds of conservation concern, it is not an appropriate location for industrial wind turbine projects, It is imperative that local municipalities and state and federal agencies establish setbacks from the south shore of Lake Ontario of at least six miles, under which industrial wind turbine projects are prohibited. Appropriate setbacks from active Bald Eagle nests also must be implemented.

When multi-year pre-construction studies confirm migration, wintering or breeding season concentrations of raptors in a particular area, then plans for development in that area must be abandoned. If such a study shows minimal concentration of raptors, or If specific designs can be demonstrated to pose minimal danger to wildlife present in the area, then projects can be considered. In cases when developers have invested in diligent efforts to locate wind power development appropriately, post-construction monitoring might still show an entire project or Individual turbines to be particularly fatal to raptors: when this happens, turbines must be decommissioned or their operation suspended during the periods when the problematic turbines are found to be most destructive. Developers must agree to such remedial action as a precondition of project approval by federal, state and local permitting agencies. RBA feels these pre and post construction study recommendations for raptors should be required for songbirds, grassland birds and shorebirds as well.

RBA cannot Support the Siting of the Uchthouse Wind Energy Project

In conclusion, the southern shore of Lake Ontario is a critical migratory corridor for both raptors and other neotropical migratory birds. Based on an abundance of biological data obtained from monitoring and other studies, the proposed project area is likely to have unacceptable levels of avian mortality. Therefore, it is not a suitable region for large industrial wind turbine facilities. The Ughthouse Wind or any other large scale wind turbine facility along the lake shore will put millions birds in danger of collision and death.

The Rochester Birding Association concludes that development of wind turbines along the south shore of Lake Ontario is ill-advised, the cost in birds and wildlife will be too high for the people and the ecological balance of New York State. We respectfully advise that the Ughthouse Wind project be relocated to an area that will result In fewer avian casualties.

RBA looks forward to working with government, industry and citizens to ensure that wind energy comes to our region in a way that does not cause significant harm to birds, bats and the ecosystems they inhabit.

Sincerely,

laura Kammermeier President, Rochester Birding Association

4of5 Works Cited

Morgan, M . R. and M. F. Burger. 2008. A plan for conserving grassland birds in New York: Final report to the New York State Department of Environmental Conservation under contract #C005137. Audubon New York, Ithaca, NY (available for download at http://ny.audubon.org/PDFs/ConservationPian-GrasslandBirds-NY.pdf).

France, K.E., M. Burger, M.D. Schlesinger, K.A. Perkins, M . MacNeil, D. Klein and D.N. Ewert. 2012. Final report for Lake Ontario Migratory Bird Stopover Project. Prepared by The Nature Conservancy for the New York State Department of Environmental Conservation (Grant C303907 from the New York Great Lakes Protection Fund). Available from www.nature.org/nybirds.

Banter, D.N., S.A. Gauthreaux, Jr., and T.M. Donovan. 2009. Characteristics of important stopover locattons for migrating birds: Remote sensing with radar in the Great Lakes basin. Conservation Biology 23:440-448.

Braddock Bay Hawkwatch counts (Hilton, NY)

April 27, 2011 http://hawkcount.org/day summary.php ?rsite=353&ryear=2011&rmonth=04&rday=27

April 16, 2012 http://hawkcount.org/day _summary .php ?rsite=353&ryear=2012&rmonth=04&rday=16

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!Figure 3 I Lighthouse Wind Farm Public Involvement Plan

Project Summary The Lighthouse Wind farm (the "Project") is a proposed 201 MW wind energy project, located in the Town of Somerset, Niagara County, New York and the To'M'l of Yates, Orleans County, New York, owned and developed by Apex Clean Energy Holdings, LLC {"Apex'). The Project's interconnection request has been submitted for the 345kV Kintigh Substation. Please see map of the Lighthouse Wind area of interest below.

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Identification of Specific Stakeholders Methodology for Identifying Stakeholders Stakeholders have been identified by using geographic information systems to determine the regions, districts, and territories covered by agencies, as well as to'M'l, county, and state representatives who are expected to take part or have interest in the Article 10 proceedings for Lighthouse Wind. A one-mile buffer and a five-mile buffer of the project area were created to identify additional potential stakeholders. Throughout the permitting process, we expect to continue to build our stakeholder list as our community networks reveal additional parties with interest in Lighthouse Wind. Our preliminary, general list of agency and community stakeholders is below. Please see Appendix A, Stakeholder and Consultation Register, for our complete list of community and agency stakeholders.

Figure 4 I 1 BIRD CONSERVATION PLAN FOR THE LOWER GREAT LAKES/ST. LAWRENCE PLAIN BIRD CONSERVATION REGION (BCR 13)

Vision Statement: ''Conservation planning that is imegraled among bird initiatives and across borders to sustain or restore. at the landscape level. populations ofall native birds and their habitats in the Lower Great Lakes/St. Lawrence Plain Bird Consen ,arion Region." I \

.. ~L I ) T ~ Figure 1. BCR 13 (shown in dark grl!~n) . Adjacent BCRs shown in other colors.

For· more information t.'onfa("f: Mitch Hartley. Atlantic Coast Joint V~n tur...: , US Fish & Wildlife Service 103 East Plumtre~ Road, Sunderland. MA 01375 Phone: (413) 548-8002, Ext. 116 FA.\:: (413) 548-9725 Email : milch harti

DATE: .June, 2007

!Figure 5 American Bird Conservancy Wind Development Bird Risk Map High Importance. Key Migration Corridors where bird ri sk will differ from season to season, and may also differ from year to year. ... d · Critical Importance. Wind power is not appropriate for any of these areas and their immediate environs.

~F igure 6 I EXHIBIT 6 ~/ AM ERICAN BIRD Shaping the future for birds ( CONSERVANCY

Hon. Kathleen H. Burgess, Secretary December 15, 2015 Public Service Commission Three Empire State Plaza Albany, NY 12223-1350

Dear Ms. Burgess: .-=-- 1 am writing to express the American Bird Conservancy's (ABC's) serious concerns about Apex CleiD . • 1" Energy's plans to build the Lighthouse Wind Energy Project between the towns of Somerset, N iagara. County and Yates, Orleans County, New York. Up to 71 570-foot tall turbines are planned for an art@ <~long the south shore of Lake Ontario. extending 4.5 miles from the Lake along a 12 mile stretch (Haley and Aldrich 2015).

ABC is a 50 I (c) (3) not-for-prof it membership organization whose mission is to conserve nati ve birds and their habitats throughout the Americas (www.abcbirds.org). ABC acts by sa feguarding the rarest species, conserving and restoring habitats, and reducing threats, while building capacity in the bird conservation movement.

ABC supports the development of clean, renewable sources of energy such as wind power to address anthropogenic climate change, but also believes that it must be done responsibly and with minimal impact on our public trust resources, including native species of birds and bats, and particularly threatened, endangered and other protected species.

ABC is a proponent of Bird Smar1 Wind Energy, which is described in some detail on our web site (ABC 2015 ). In the case of wind energy. careful wind generation siting is crucial in preventing the unintended impacts to America 's native bird spec ies, and ABC is concerned that the proposed site for this project poses an unacceptably high risk to protected wildlife species. This risk can be substantial, depending on the circumstances, including both deaths due to turbine blade collisions (Loss et al. 2014, Smallwood 2014), and stress and displacement leading to reproductive failure (Pearce-Higgins et al. 2009, Stevens et a!, 2013, Shaffer and Buhl 20 15 ). Raptorial birds and nighttime migratory songbirds are particularly vulnerable, as are breeding grassland birds, particularly species that rely on cryptic behavior and coloration to deter predators.

How many birds move through this area annually? Observational d:ua maintained by the Rochester Birding Association and others, such as Braddock Bay Raptor Research. Braddock Bay Bird Observatory, Hawk Migration A ssociations of North America. (HMANA) and Buffalo Ornithological Society, show that the region within one to six miles of the shorel ine is a major pathway for migratory song birds and raptors. The western NY southern shore of Lake Ontario is also an important breeding and wintering habitat for grassland birds. Studies by Audubon NY and The Nature Conservatory over the past ten years have verified the significance of this corridor (France et al. 2012, Morgan and Burger 2008). These studies have documented extensive use of agricultural areas in fall within six miles of Lake Ontario. It has been suggested that vast numbers of migrants rest and refuel along the lakeshore in isolated wooded patches in the agricultural areas between Buffalo and Rochester.

In addition, the proposed Lighthouse Wind Project, lies just north of several important wildlife habitats, including the Iroquois National Wildlife Refuge. and T onawanda and Oak Orchard Wildlife Management Areas. These important habitats serve as an important migratory pmhway and it is to be expected that

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when resting waterfowl and other birds resume their migration they will head directly north into the vicinity of the proposed Lighthouse Wind Energy Project

Of particular importance to these deliberations is the U.S. Fish and Wildlife Service's (FWS') 6 May 2015 letter to Apex Clean Energy regarding the proposed Lighthouse Wind Energy Project (Stilwell 20 15). The proposed facility is close to the south shore of Lake Ontario. and according to the FWS' own studies of bird and bat movement in the Great Lakes region (Bowden et al. 20 15), could pose sign ificant risk to our nation's migratory birds and bats, including our iconic Bald Eagles. The letter specifically states FWS' serious concem s about this project. recommending,·· ... that Apex carefully consider the potential effects of the Lighthouse wind project design, construction and operation on wildlife. including protected bnts and migratory birds." It further states," ... the project is in an area known to have very high avian activity as evidenced by the studies completed to date." ABC strongly agrees with the FWS' recommendation that wind energy projects should be built at least three miles away from the Great Lakes shoreline to reduce risk to migratory birds and bats. Nature conservancy has recommended a distance of five miles. The proposed Lighthouse project seems to fall within the FWS recommendation, but not Nature Conservancy's. In fact. each location must be considered by virtue of its own biological characteristics. In this case, the n011hem border shou ld be 6 miles or greater from the lake shore based on the fall migration patterns found in The Nature Conservancy's migratory bird study (France et al. 2012). Long-term studies have shown that many of our native bird populations are in precipitous decline, as the result of several cumulative factors, including poorly-sited wind energy development (NOJth American Bird Conservation Initiative, U.S. Committee. 2014). Placing wind LUrbines so close to the Lake will put millions of birds at risk of collision with the turbines and could also displace breeding grassland birds. The PreI iminary Scoping Statement (Haley and Aldrich 2015) states that this site was chosen because, of its "potential for avoidance and/or minimization of significanr environmental impacts." That is simply not true, as this is an important area for migratory birds and bats, and the environmental impact could be substantial.

Apex will argue that it knows how to mitigate the impacts of industrial scale wind development, but this is not the case. In point of fact, we do not know what actually works with regard to mortality mitigation for wind energy development, especially for birds. Types of mitigation include use of radar or observers to detect presence of large flocks of birds and then shutting down turbines either temporarily or seasonally (e.g., during peak migration); using lighting that does not attract birds or bats at night; managing habitat under turbines (e.g .• no vegetation or water that might attract birds or bats); n:ducing prey species (i.e., to reduce attractiveness to raptors); and retrofitting of associated transmission lines and towers (to reduce probability of collisions or electrocution). Unfortunately, few of these methods have been systemat ically tested for their efficacy and even fewer are actually in widespread use. The U.S. Department of Energy's Office of Energy Efficiency and Renewable Energy recently stated that, " ... technologies to minimize impacts at operational I wind energy! facilities for most species are either in early stages of development or simply do not exist." (DOE EERE 2014). When it comes to wind energy development, siting is everything and is the most effective form of mitigation. and the Lighthouse Wind Energy Project appears to be one of the most poorly sited in recent memory.

Apex Clean Energy's Web site on the Lighthouse Wind Energy project makes incorrect claims that national wildlife organizations support wind energy development in lockstep (Apex Clean Energy 20 15) and that the impact of this project will be minimal. Yet, most wildlife conservation organ izations, including ABC, support "properly sited" wind energy facilities. not those that pose high risks to wildlife. Furthermore. while arguing for new sites, wind energy companies often do not take into account the cumulative impact of all current anthropogenic factors on bird and bat populations. Our current approach

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is to analyze the potential impacts of one wind energy project at a time. not considering the cumulative impact of other factors influencing bird mortality and reproductive fnilure, both anthropogenic and natural. This is a mistake. So what if wind turbines kill fewer birds than feral cats, building collisions, or pesticides; they are still contributing to the problem. Losses due to wind energy development are far from trivial (Smallwood 2014, Loss et al. 2014), and the cumulative impact of al l of these factors is what is important (Loss et al. 2015). In fact. populations of even our most common bird and bat species are currently in precipitous decline (North American Bird Conservation Initiative, U.S. Committee. 20 14). Furthermore. when it comes to endangered or threatened species, the loss of even a few individuals can be significant.

It should be noted that the few peer-reviewed studies that are avai lable on bird and bat kill at wind energy facilities show a wide range of impact. Smallwood's (2013 ) study. based on reports from 3 1 wind energy projects, estimated losses of 573,000 birds and 888,000 bats annually in the United States alone at 2012 build-out levels. However, this was merely a snapshot taken at a pa11icular point in time. There are vastly more turbines now and tens of thousands more are planned, which implies that many more birds and bats are currently being killed and many more will be lost in the future.

The coming cumulative impact of wind energy development could be significant- a point that is seldom discussed by wind energy developers. Loss et al. (2013) estimated that 1.4 mi llion birds would be killed by wind turbines annually by 2030 or earlier if U.S. goals of 20% of electrical energy generated by wind are met. We recently updated those estimates using average per megawatt bird kill data from the Smallwood and Loss et al. findings, and obtained a similar estimate to Loss et al. for 2030. However, the U.S. Department of Energy's recent suggestion of a 35% goal (Jackson 20 15) would put the estimated loss at around 5 million birds annually. In addition, this figure could be even higher if the wind industry moves toward taller turbines (and that seems to be the trend). as Loss et al. (201 3) found a strong positive correlation between the incidence of bird mortality and turbine height.

Another important point is that discussions about the impact of wind energy development seem to be focused entirely on collision mortality at the turbines themselves. Little attention is given to impacts from additional infrastructure assoc iated with wind energy development. particularly roads and power lines and towers. Hundreds of miles of new power lines and towers are being constructed to transport energy from solar and wind into the grid (McGill 20 15). Yet, power I ine electrocutions and collisions with towers are known to be a significan t source of bird mortality. perhaps also killing hundreds of thousands, if not millions of birds annually (Manville 2005. Loss et al. 2014). In addition, both power lines and roads open up "edge effects", which are known to increase the probability of predation on ground-nesting birds (DeGregorio et al. 20 14 ).

Following surveys conducted by paid industry consultants, Apex will l ikely also argue that the risks to wildlife are low and acceptable. However, it is in industry's interest to downplay the potential impacts of their projects on birds and bats, and many problems have been found with these non-independent wildlife surveys (Parr 2015). Often, such preconstruct ion risk analyses do not include nocturnal radar studies or do not extend the studies during inclement weather (overcast and windy), both times when birds may come to the ground or fly at heights that could place them at elevated risk.

In conclusion, the southern shore of Lake Ontario is a critical migratory corridor for both raptors and migratory songbirds. Based on an abundance of data obtained from long term monitoring and other studies. the proposed project area is likely to have unacceptable levels of avian mortality, and is

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unsuitable for large scale industrial wind development. Any large scale wind turbine facility along the lake shore will put millions of birds in danger of collision, death, and/or displacement. The fact that Apex Energy has proposed this poorly-sited project. despite the obvious risk to our nation· s wildlife illustrates many points that ABC has been trying to make with the FWS for several years. First, the voluntary guidel ines for wind energy development that the FWS has developed are not working to keep wind projects out of sensitive areas for birds and bats, particularly on private lands (Casey 2015). Second, if this project becomes operational, we wi ll never know how many birds and bats are killed because mortality data are collected by paid consultants to the wind industry and not shared with the public, even though these are public trust resources being taken (Clarke 2014. Capiello 2014 ). In a recent letter to Nor1heast Regional FWS Director Wendy Weber (Hutchins 20 I 5), ABC outlined what should happen if. by some chance. this poorly-sited wind energy project was approved and built. It encouraged the FWS to use its regulatory authority to impose regular, unannounced inspections post­ construction to ensure that federally-protected species are not being taken. The FWS also has the ability to enforce the Bald and Golden Eagle Act. the Endangered Species Act and the Migratory Bird Treaty Act to their fullest extent. If Apex Energy chooses to build this facility, then FWS would seem obligated to prosecute. fine and even shut down the project post-construction if large numbers of federally-protected species are being taken.

ABC will be monitoring this situation closely. We have recently developed a top ten list of the worst-sited ex isting and proposed wind energy projects in the United States from the perspective of avian conservation. Lighthouse is on that list. and will soon become widely known to those who care about our nation 's ecologically-important and irreplaceable wildlife. ABC has taken direct action to stop poorly sited wind energy facilities in the past and has been successful on several occasions, (e.g., Camp Perry: ABC 20 14). It is our hope that Apex Clean Energy will realize the error of this dec ision and move the project well away from sensitive areas for birds and bat s, including major migratory pathways, and sensitive breeding and feeding areas. To reiterate, we support wind energy development, but would just like to see it done right. That is clearly not the case here. Thank you for the oppo1tunity to comment.

Sincerely,

Michael Hutchins, Ph.D. Director, Bird Smart Wind Energy Campaign

Cc: D. A she, J. Ford, W. Weber, D. Fitzgerald, P. Riexinger

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References

ABC. 2010. American Bird Conservancy's Policy Statement on Wind Energy and Bird-Smart Wind Guide I ines. http://www .abcbirds.org/abcprograms/pol icy/colii sions/wind_pol icy .hun I ABC 2014. Bird conservation groups announce intention to sue over Ohio wind turbine in key bird migration con·idor. hllp://abcb ir<.l~.org/artt c lc/b ird-conserva t ton -groups-an nounc~- intcnttun-to-sue- 0\-croh io-w ind-turbtn~ - i n- key -h 1r d-m igrat ion -corridor/

Bowden. T. S .. E. C. Olson. N. A. Rathburn. D. C. Nolfi. R. L. Horton. D. J. Larson. and J. C. Gosse. 20 15. Great Lakes Avian Radar Technical Report Huron and Oceana Counties, Michigan. U.S. Depat1ment of Interior, Fish and Wildlife Service, Biological Technical Publication FWS/BTP-20 15. httn://ww\<\ .rv. s.gov/radar/documcntvA' tanRadarTechnicaiRcpurtFall20 I l.pdf

Capiello, D. 2014. Wind energy fi rm sues to block birth death data release. PBS Newshour: ht tp://w W\\ . pbs.o rg/ne"" shour/ru ndcm n/ wind -c ner!! y-fi ml-!'>UC s-bl oc k -b 1rd -dl'a th -data -rc lease/

Casey, M. 2015. 30,000 turbines located in critical bird habiLnts. CBS News: http://www.cbsncws.com/news/JOOOO-wlnd-turbines-locatcd-ln-critical-blrd-habitatv

Clarke, C. 2014. It's time for independent monitoring of wildl ife kills at renewable energy sites. ht t p://ww\\ .kcct.org/ne\\ !\Ire de finc/rcw ire/commentary/its-time-for-indepcndcnt-monllon ng - of_,, 1ldl1 fc­ kil b-at-renewable-energy-s ites html

DeGregorio, B.A., Weatherhead, P.J., and Sperry. J.H. 2014. Power Lines, roads and av ian nest survival : Effects on predator identity nnd predation intensity. Ecology and Evolution 4(9): 1589-1600 DOE EERE 20 14. Request for information: Wind energy bat nnd eagle impact minimization technologies and field testing opportunities. Washington, DC: Department of Energy. Energy Efficiency and Renewable Energy. hllp~ : /1\\ \\ \\ .googlexom/#g=U .S +Departmc:nr+of+Energ\ ~( 2C+EERE ~ c 2( +Reque ... t+lor+lnformauon:+ Wlnd+Energy+Bat+and+Eagle+lmpacl

France. K.E., Burger. M., Schlesinger, M.D., Perki ns, K.A .. MacNdl, M .. Klein. D.,and Ewert, D.N .. 2012. Final report fo r Lake Onrario Migratory Bird Stopover Project. Prepared by The Nature Conservancy for the New York State Department of En vironmental Conscrvation(Granl C303907 from the New York Great Lakes Protection Fund). W\\\\ .naturc.org/nybirds

Haley and Adlrich. 2015. Pre I iminary Scoping Statement: Lighthouse Wind Project. Hutchi ns, M. 20 15. Letter to FWS Regional Director Wendi Weber regarding the proposed Lighthouse Wind Energy Project in New York. 30 Nove mber, 2015.

Jackson, D. 2015. Report: Wi nd power cou ld be 35% by 2050. USA Today: http://v. ww.u!'>atodny.com/story/newvnation/20 15/03/12/ohama-\\ ind-power-report-cne1 gy­ <.lepartrnent/70 160824/

Loss, S.R., Will, T., and Marra. P.P. 2013. Est imates of bird collision mortality nt wind facilities in the contiguous United States. Biological Conservation 168: 201 -209.

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Loss. S.R., Will, T., and Marra, P.P. 2014. Refining estimates of bird collision and electrocution mortality at power lines in the United States. Plos One 9 (7): el01565. doi: 10. 1371/journal.pone.OIOI565. Loss. S.R., Will, T., and Marra, P.P. 2015. Direct mortality of birds from anthropogen ic causes. Ann. Rev. Ecol. Evol. Syst. 46: 99- 120.

Magill, B. 2014. Wind, solar boosting investment in power lines. Climate Central. Sept. 14,2014: htlp://www .cl i mateccntra l.org/new~wtnd - so l ar- boosting- •n ves t ment-in-power- I ines-1794 9

Manville. A.M. 2005. Bird strikes and electrocutions at power lines, communication towers. and wind turbines: State of the art and state of the science -Next !'teps toward mitigation. USDA Forest Service Gen. Tech. Rep. PSW-GTR- 191: 1051-1064. M organ,M.R., and Burger, M.F. 2008. A plan for conserving grassland birds in New York : Final report to the New York State Department of Environ mental Conserva tion under contract #C00513 7. Audubon New York. Ithaca, NY http://ny .audubon.org/PDFs/ConservationPian-GrasslandB irds-NY .pdf North American Bird Conservation Initiative, U.S. CommitLee. 20 14. T he State of the Birds 2014 Report. U.S. Department of Interior. Washington, D.C.

Parr. M. 2015. To save birds. change the rules on wind turbines. Philadelphia Inquirer: hllp://www.philly.com/philly/blogs/thinktankffo-save-birds-change-wind-turbine-oolicles.html

Pearce-Higgins. J.W., Stephen, L., Langston. H.W. . Bainbridge. I.P., and Bullman, R. 2009. The distribution of breeding birds around upland wind farms. Journal of Applied Ecology 46: 1323-1331.

Shaffer. J.A., and Buhl, D.A. 2015. Effects of wind-energy facilities on breeding grassland birds distributions. Conservation B iology online early. DOl I O.lll l /conbi.I2569.

Sma llwood, S.K. 2012. Comparing bird and bat fatality-rate est imates among North American wind­ energy projects. Wildlife Society Bulletin 37 (I): 19-33.

Stevens. T.K., Hsle, A.M., Karsten, K.B .. nd Bennett, V.J . 201 3. An analysis of displacement from wind turbines in a wintering grassland bird community. Biodiver. Cons. 22: 1755- 1767.

Stillwel, D . 2015. Letter to Dave Phillips. Apex Clean Energy. May 6, 20 15.

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Via Email [email protected]

January 12, 2016

Daniel M. Engert- Supervisor Town of Somerset, Niagara County 8700 Haight Road Barker, NY 14012

Re: Review of Lighthouse Wind Preliminary Scoping Statement New York State Department of Public Service Case Number: 14-F-0485 Lighthouse Wind LLC Application of Lighthouse Wind LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 to Construct a 201 MW Wind Energy Facility. (LW Project)

Introduction As requested, McCann Appraisal & Consulting, LLC (McCann) submits the following review of the Lighthouse Wind, LLC (LW) Preliminary Scoping Statement (PSS) to determine whether the PSS adequately address and evaluates the potentially significant adverse impact and effect of the LW Project on neighboring residential property, both within and outside the actual project boundaries or "footprint". Existing residential uses are within close proximity to the proposed LW Project, in the Town of Somerset, Niagara County and the Town of Yates, Orleans County, New York.

Lighthouse Wind, LLC (the Applicant), a subsidiary of Apex Clean Energy Holdings, LLC (Apex), is preparing to submit an Application to construct Lighthouse Wind (Project). The stated purpose of the PSS is to establish the methodology, scope of studies, or program of studies to be conducted in support of an application being submitted for the Project pursuant to Article 10.

The LW PSS states that the required content of the PSS is prescribed in 16 NYCRR § 1000.5 and McCann has identified the relevant parts of NYCRR § 1000.5 that appear to be applicable to the potentially significant real estate value impact and concern of the Client (and similarly situated parties, intervenors, property owners, etc.) , as follows:

(I) The preliminary seeping statement shall contain: (ii) potentially significant adverse environmental and health impacts resulting from the construction and operation of the proposed facility including also an identification of particular aspects of the environmental setting that may be affected, including any material impacts or effects identified in consultations by the public, affected agencies, and other stakeholders, and a responsive analysis by the Applicant as to those issues identified in consultations; (iii) the extent and quality of information needed for the application to adequately address and evaluate each potentially significant adverse environmental and health impact, including existing and new information where required, and the methodologies and procedures for obtaining the new information; (Emphasis added)

500 North Michigan Avenue, Suite 300 Chicago, Illinois 60611 PHONE: (312) 644-0621 cjJ] McCann Appraisal & Consulting, LLC

With a large number of homes located within the Project footprint, as well as surrounding the proposed LW Project footprint, clearly, the potential, probable and likely impacts on the local real estate market value is a legitimate concern and issue to be addressed in any Application for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10, along with any necessary mitigation of impacts.

The Scope Of Work (SOW) undertaken by McCann to review and evaluate the adequacy of the LW PSS is intended to aid the parties in establishing proposed pre-application stipulations, and has included:

• Initial McCann consultation with Client and Legal Counsel for Client to review any facts or information relevant to the Preliminary Scoping Statement (PSS) of the LW Project, related to real estate value, marketability, and use and enjoyment of Non-Participating Property (NPP). • Review of the PSS document, maps and exhibits for the LW Project. • Review of real estate value and compatibility related issues described in the LW PSS, as well as traditional real estate valuation and marketing criteria. • Conduct a summary review of select property value and/or statistical studies which purport to analyze value trends near large scale turbines and wind energy projects as cited by LW in their PSS submittal to the New York State Public Service Commission (NYPSC), in order to determine from a real estate valuation and appraisal perspective whether the studies cited by LW adequately address potential real estate impacts. • Develop preliminary opinions of any probable value impact to residential property values located in or near the Subject Project area. • Prepare and submit a written opinion as to the reliability of the LW real estate statistical reports, for public policy and siting purposes. • Develop and submit recommendations to the NYPSC as may be warranted, for consideration in developing proposed stipulations.

The Intended Use of this review is exclusively to assist the Town of Somerset, the NYPSC and other stakeholders, property owners, etc., in evaluating and responding to the real estate valuation aspects of the LW Project PSS. McCann understands that any proposed stipulations will be subject to review by the NYPSC, as well as LW and the other stakeholders, intervenors, etc. , and that after refinement and further disclosure of LW development plans, review and comment of all parties, additions or modification of the stipulations may be warranted.

Review of PSS It is acknowledged by McCann that many reports exist and are available in the public domain that are purported to study property values near wind farms, and have been undertaken by various parties. The impetus of such efforts has been larger scale wind energy projects, which increasingly became identified as a disamenity and/or detrimental condition affecting neighboring homeowners, with significant potential and/or claims of property value loss, impairment of quiet use and enjoyment, depreciation and/or loss of marketability.

It is also well understood that such studies have been undertaken by "pro" wind energy entities, and guided by renewable energy development policies of federal and state governmental agencies, and are often prepared by university students enrolled in renewable energy programs with wind industry corporate sponsored universities , appraisers and/or consultants retained by renewable energy or wind

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energy development companies and their LLC subsidiaries, as well as by intervenors, objectors and citizen groups and/or their attorneys.

Widely divergent analytical and research standards, methodology, ethical requirements and certifications, and definitions of key terms have been used, ignored or omitted in the process of preparation of many of these studies, which results in a widely variable range of results of the studies, and sometimes purport to answer an entirely different question than the relevant question under local zoning ordinances, bylaws or state siting criteria. Further, some studies are focused on statistics but make no attempt to measure actual value impacts for properties nearest wind turbines using recognized appraisal methodology.

16 NYCRR § 1000.5 identifies the relevant issue to include any material impacts or effects and requires the PSS to identify the extent and quality of information needed for the application to adequately address and evaluate each potentially significant adverse impact.

PSS Cited Studies The LW PSS cites several statistical studies: Sterzinger et al., 2003- also known as the REPP Report; Hoen, 2006 - Master's thesis of Ben Hoen; Hoen et al., 2009 - also known as the LBNL report; Hinman, 2010 - another master's thesis by Jennifer Hinman at Illinois State University; Carter, 2011- another ISU master's thesis. McCann has made ongoing review of these (and other) studies during the last 10+ years, and as part of this assignment.

Review Conclusion The studies cited in the L W PSS are deficient with respect to the extent and quality of the information needed to address the adverse impact of large scale turbines located in relatively close proximity to neighboring residential uses. The basis for this conclusion is summarized as follows:

1. Despite statements in the reports that numerous property sales were analyzed, there is a complete lack of transparency regarding any individual sales with regard to location, price, sale date, physical features, marketing times, etc. The extent of the information provided in the reports is not adequate to allow any second party review or replication of the studies.

2. The information contained in the reports for property sales is all derived from public records, and ignores the real estate industry standard for residential valuation of use of local Multiple Listing Service (MLS) data, which is far more detailed, descriptive, and can also be used to measure the metric of marketability, i.e., Days on Market (DOM) or Marketing Time (MT). The quality of the information is therefore less informative than data that is available to real estate practitioners, (i.e., brokers, appraisers, consultants who are engaged in the marketing, sale, study and evaluation of real estate) and which can be obtained via subscription at reasonable cost.

3. The industry standards for mass appraisal statistical analysis typically require a «fit" of the data of .90 to .95, with occasional relaxation of statistical standards to .85, in locations where the property sales are not representative of homogenous data. The LW PSS studies cited all have inadequately supported conclusions, as indicated by low R-Squared (R2) Coefficients of correlation, as follows:

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Study R Squared {R2)

a. LBNL 2009 .75- .77 b. Hinman 2010 .61 - .68 c. Hoen 2006 .79 (Fenner wind farm, Madison County, NY) d. Carter .42- .58 e. Sterzinger 2003 .28 (Madison County NY, view shed, after construction)

"Regression models with low R2 values must be interpreted with caution. Often, knowledge and examination of factors not included in the regression model can help one understand why the regression provides a poor fit." Sterzinger. pg. 16

Thus, the explanatory power of the LW PSS cited studies is sub-standard for valuation purposes, and can only explain from 28% to 79% of the variation in sale prices. This is not adequate quality of information to discern whether the wind farm locations studied statistically has had substantial value impacts, and at best, can explain only 79% of the variation in sale prices. Any value impact measured via like kind comparison of comparable home sales would not register as statistically significant in their respective analyses, and value impacts of 25% or more would simply get "lost in the rounding." This w ide gap is beyond the variation in sale to list price ratios in typical real estate markets.

4. Further, as noted in the R2 summary above, there is a wide disparity between the two (2) separate studies that included in the LW PSS which compiled statistical data in NY State. The results of these studies tend to contradict each other, which indicate the methodology employed by the separate researcher/authors is not reliable, even w ith respect to the threshold R2 statistical measurement of "goodness of fit".

5. None of the studies cited in the LW PSS calibrated their models to test whether the regressions performed were able to accurately or sufficiently estimate the model results against actual sale prices. They are therefore untested in a meaningful way as far as the conclusions stated in the reports.

6. It is also noted that the LBNL 2009 report specifically excludes sale data the author was aware of, which had been bought out by a wind developer and then resold (with waiver of liability by buyers) for sale price decreases or value loss of 36% and 80%. Exclusion of sale data that represents fully informed buyers and sellers "market" based value impacts is simply not an appropriate omission from an appraisal perspective, or any other objective, empirical measurement of value impact.

7. McCann was invited to peer review the 2009 LBNL study, pre-publication. Given the lack of sale data disclosure by the LBNL author, the scope was limited to an initial review of the text of the report, which did not support the claim of no measurable impact on value.

Similarly, a peer review was provided by another professional appraiser, Mr. AI Wilson, who authored a review that did not opine as to whether or not turbines impact value, but did in fact find that the 2009 LBNL study was "Report should not be given serious consideration for any

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policy purpose." WIND FARMS. RESIDENTIAL PROPERTY VALUES. AND RUBBER RULERS. 2010. AI Wilson. (See Addenda)

8. LWs PSS cites the 2009 report titled The Impact of Wind Power Projects on Residential Property Values in the United States: A Multi-Site Hedonic Analysis, which was funded by the Office of Energy Efficiency and Renewable Energy (Wind & Hydropower Technologies Program) of the U.S. Department of Energy (LBNL Report, or LBNL) states in the Report Abstract:

''The various analyses are strongly consistent in that none of the models uncovers conclusive evidence of the existence of any widespread property value impacts that might be present in communities surrounding wind energy facilities. Specifically, neither the view of the wind facilities nor the distance of the home to those facilities is found to have any consistent. measurable. and statistically significant effect on home sales prices. Although the analysis cannot dismiss the possibility that individual homes or small numbers of homes have been or could be negatively impacted, it finds that if these impacts do exist, they are either too small and/or too infrequent to result in any widespread. statistically observable impact. "

Careful review of the disclaimer-type conclusion makes it clear that this report does very little to address whether or not any nearby impact on property values have been discovered during their research, and it simply dismisses any nearby impacts as not being consistent, widespread and statistically significant, under their regression analysis design. This study implicitly presumes that the "relatively few" examples of value impact are insignificant to the determination of whether there is any material impact on values, which is in stark contrast to the nearest properties afforded the most consideration in a typical Project siting approval applications.

Absent a definition in Article 10 of what constitutes a "material" impact or effect, McCann relies on experience that suggests any significant or measurable impact is defined within normal ranges, as is typical in other land use evaluation criteria and based upon the level of detail that is possible in a properly developed property value impact study. It is understood that most home sales follow a negotiation process, and often sell for less than full list price. Thus, abnormal price reductions caused by proximate development and operation of large scale turbines, which often result in impaired marketability and resu lt in sale prices outside the normal range of negotiation are considered to be "material" impacts.

9. The LBNL Report can be fairly described as an over generalization of a statistical analysis which contained such broad parameters of distance, the setting of home sales, "pooling" of data from various locations and states, etc., and establishes such broad sale price ranges that any value differential attributable to market resistance to buying homes near turbine projects simply gets lost in the rounding of statistical analysis. Thus, the LBNL report lacks the detail and focused analysis of relevant data that this issue merits.

10. The LBNL Report and many other studies reviewed by McCann fail to meet minimum appraisal profession Industry Standards regarding the development and reporting of property value opinions, as previously summarized.

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11. The LW PSS fails to provide for any meaningful mitigation of any value impacts that may be caused by the Project. Options include a Property Value Guarantee (PVG) for residents who do not wish to move, or buyout of homeowners who do not wish to be living among large scale industrial wind turbines. In this manner, homeowners would not be faced with significant loss of value and hard earned home equity.

Recommended Study Methodology Stipulations Since the question of property values and impact thereon caused by wind turbines (or any other detrimental condition or disamenity) is a question of value, the appropriate Standards for developing such a study must be utilized to insure that the results and conclusions are credible, reliable, meaningful to the issue at hand, and based on objective analysis of empirical data.

A key element of the study should be a diligent effort to find the truth of this issue, regardless of any political goals, policies, motivations or claims, and regardless of how much money any developer may be paid or earn through such policies, or how much money is earned or paid to develop a study. It is understood that the truth may not be a simple one-size-fits-all answer, but may actually be a range of possible answers, which may in turn depend on variables such as distance, scale, intensity of development, operating conditions or restrictions on the turbines, and will likely reflect a range of buyer and seller motivations and expectations.

Given the amount of time that has transpired since the development of turbines from the LW PSS cited studies, the opportunity exists to measure long term impacts, and can be based on rural New York locations, if the NYPSC deems "local" studies more reliable. A focus should also include recognition of unique aspects of the lakefront residential markets, as impacts may trend differently than in locations with lesser amenity factors and related premium values of lakefront property.

Property Value Impact Study- Key elements In order for any study of property value impacts in this matter to be credible and reliable, several key elements must be incorporated into the study. A summary of key elements is presented as follows:

• Transparency -All records used in the study to be retained and made available for appropriate and authorized review following completion of study. Any underlying data must be identifiable and from sources that are documented and can be obtained, duplicated or verified for accuracy independently.

• Qualified valuation professionals, i.e., licensed appraiser(s). - The study should be performed by a qualified real estate appraiser(s) who can demonstrate competence with the type of study necessary, to reliably determine whether any impact exists at other study location(s) as far as impact on value and/or community growth. Certification of opinions per the New York State Certified and Licensed Real Estate Appraisers License Law (June 2013) (Licensing Law) should be mandatory.

Per the Licensing Law, a "State certified real estate appraiser" means a person who develops and communicates real estate appraisal and who holds a current, valid certificate issued to him or her for either general or residential real estate under the provisions of this article.

The Licensing Law defines an Appraisal as follows:

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"Appraisal" or "real estate appraisal" means an analysis, opinion or conclusion relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate.

http://www.dos .ny .gov/licensing/re appra1ser/re appraiser. html

Since an opinion related to the value of real estate in the vicinity of the LW is an important element of the study, it is clear that adherence to the relevant New York Licensing Law should be mandatory for any value opinion developed for this study.

• Compliance with Uniform Standards of Professional Appraisal Practice (USPAP) - USPAP is a component of the Licensing Law, and is also the appraisal profession's Industry Standard setting forth requirements for development and reporting of Appraisal assignments. USPAP regulations require carefully defined development standards be utilized, as well as communication and reporting requirements. Opinions must be objective and certified as to lack of bias, and USPAP also contains Ethical requirements as far as not being misleading, record keeping requirements, etc.

• Sale Data sources - The valuation and appraisal profession utilizes sale data from a variety of resources, depending on the property that is subject of the appraisal or consulting assignment. For residential property, the Industry Standard is to use local realtor Multiple Listing Service (MLS) data, followed by public record data. Each source has its own points that when compared factually tends to make the underlying facts more reliable.

For example, MLS records typically provide not just sale price information, but also original list price, prior listings, days on market (DOM), cumulative days on market (CDOM) and physical details in the listing sheet that are not included in public records. On balance, while many MLS services do not state the square footage of a home or exact lot dimensions, Assessor records typically do include that size data, and building sizes are usually determined by measurements made by Assessor Office field personnel. When possible, building sizes should be reported in terms of Gross Living Area (GLA) using American National Institute (ANSI) criteria.

• Appropriate definition of "Value" - The Market Value definition cited on page 23 in The Appraisal of Real Estate, 12th Edition, published by the Appraisal Institute is as follows:

"The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby:

1. buyer and seller are typically motivated; 2. both parties are well informed or well advised and acting in what they consider their own best interests; 3. a reasonable time is allowed for exposure in the open market; 4. payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and

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5. the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale."

It should be noted that, consistent with Market Value Criterion 2, the study and Appraisal Consulting assignment should not assume that any prospective seller or buyer is unaware of any actual, probable or possible safety, noise, health, vibration or view impacts, and does assume a generally well informed level of knowledge about the potential for any or all of the stated impacts, "as if' the turbines were physically present and operating.

Value can also be simply understood as "the present worth of all perceived future benefits".

Value should not, however, be a misunderstood or misused term. For example, the "value in use" to a given property owner may be substantially different than the market value, or even different than the value in use to another individual. Value should also not be misunderstood as an intermingled component of some goal or trend, upon which an opinion of value is offset by the greater public good, as in "if only a few properties lose their value it is for the benefit of many". There is no such contingency in the measurement or definition of market value.

• Use of recognized valuation methodology - Use of recognized and accepted methodology within the appraisal profession is required for any appraisal or consulting assignment, including for determining value impact. The most reliable methods within the framework of residential property analysis are paired sales and resales.

According to the Appraisal Institute textbook, Real estate Damages - An Analysis of Detrimental Conditions (pg. 19 -22), recognized methods of applying a Detrimental Condition Sales Comparison Approach includes the use of a Sale/Resale analysis or a Paired Sale Analysis.

A Paired Sale or paired data analysis is defined in the Appraisal Institute textbook The Dictionary of Real Estate Appraisal, (:fd ed., pg. 258-259), as follows:

"A quantitative technique used to identify and measure adjustments to the sale prices or rents of comparable properties; to apply this technique, sales or rental data on nearly identical properties are analyzed to isolate a single characteristic's effect on value or rent."

A Sale/Resale analysis can also be used to determine a "before and after" value damage estimate, with the first sale occurring before the detrimental condition, and the second sale occurring after the detrimental condition. However, the overall change in (non-impacted location) market conditions should also be analyzed, in order to "net" out the impact from the detrimental condition or external influence on value.

A sale-resale analysis can also be developed with both sales of the same property being located near any wind energy project, and a second data set of sale-resale located further distant from any turbine view or impacts of any nature.

Case studies of individual properties should be considered when adequate information is available via public record, news reports, self-reporting, interview of seller/buyer, review of non­ disclosure agreement terms (aka confidentiality agreements or "gag" orders).

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If available, technical support may be helpful to refine any noise/distance related impacts, either measured or estimates, and should be approved if and as needed from acousticians, professional engineers, etc. Noise impacts should include any known type of noise and measurement scales that are relevant, whether or not such types of noise are included in current municipal codes. For example, low frequency noise and infrasound are often reported as relevant and of various types of nuisance and impact on residents, but such types of noise are often excluded in regulations that were not specifically or thoroughly designed for measuring turbine noise.

The progression and protocol of a study for the LW Project is recommended as follows:

Phase !-Identify LW Project This includes identifying the LW project with specific information and exhibits, including the location of each proposed turbine on a scaled map. Maps should be in electronic format to allow zoom in and out views, which would enable the appraiser to view the locations for all turbines relative to all neighboring land uses. Each map should also identify the location of the nearest residential lots to any and all turbines, as measured in feet, and any other non-participating tracts of land, roads, rivers, lakes, clusters of housing, schools, business and commercial locations, industries, utility locations (sewer, water, electric), and have the total number of turbines within certain ranges of the nearest homes, i.e., 1/8 mi le, Y.. mile, %mile, o/. mile, 1 mile, 1-1/4 mile, and in Y.. mile increments to a distance of 3 miles. Equivalent measurements expressed in feet, meters and kilometers can also be added if desired, but the U.S. measurement standards (Miles and then feet) should be listed at a minimum.

The turbine type, model and MW proposed should be identified. Any features that are in some way claimed to be superior (i.e., not as noisy) to turbines of similar size, height, power rating, manufacture, etc., from other comparable or alternative models should be clearly described, along with the appropriate technical documentation from the manufacturer and independent verification of any such claim(s) (i.e., acoustical engineer review)

Photo simulations from a large sampling of neighboring residences should be created by the applicant as well. Based on past experience, photo simulation locations that should be avoided include choice of locations that maximize view obstructions, such as with large trees or stands of trees in the immediate foreground, or with a building or structure located between the camera and the turbine location(s). Ideally, photo simulations will be made to represent "actual conditions" from the portion of any property that will have any exposure to the turbines, such as front porches (or simulation thereof) , 2"d floor bedroom windows (or simulation thereof), back yards, front yards, street views and "birds eye" aerial perspectives. All photo simulations should include representations with seasonal foliage changes, showing, for example, a summer view and a winter view.

Such maps and photo simu lations should be provided by the applicant to enable the appraiser and others to make meaningful comparisons with any/all comparable sale properties, based on views rated and observed from any comparable sale locations.

All other operational characteristics of the proposed turbines and the LW project should be detailed, including hours of operation, FAA lighting required or proposed, whether FAA lights will be radar activated or left on during all night time hours, whether fire suppression/extinguishing equipment will be

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installed in all turbines, such as sprinkler systems, fire pumps, foam suppression, use of private well or municipal water supply.

Documentation should be provided by the developer that states all known "blade throw" and "ice throw" incidents, and calculations or comparisons made as to the furthest distance any LW turbines are capable of releasing any such physical hazards to any nearby non-participating property.

Phase II - Research This Phase should include research of study locations, in order to collect data on home sales within view proximity to turbines of at least 3 miles (Target Area), as well as a similar size database of sales located at least 10 miles from any turbines (Control Area). This can be understood as the basis for near vs. far value comparison, and "before and after" valuation analysis. Particular research tasks should include:

• Locate other wind energy projects in the state of New York of similar type, location, size, height, density or scale of development and the rated MW per turbine. See EXHIBIT A • Determine type of housing, density of development near any identified projects. • Research any base or multiple base economic drivers, employers, industries- job base. • Determine local government, public record or homeowner/citizen group contacts. • Determine the extent of available information regarding public comments, complaints or experiences, and confirm distance of such locations from nearest turbine(s). • Locate and utilize appropriate Realtor Boards and/or MLS data services, for collecting relevant sale data and other records useful for measuring marketability of homes. • Collect public records of home size, age, recent remodeling or construction permit activity, and utilize the public record data to augment the MLS data and confirm information is as complete as possible. • Identify locations and distances where complaints have been reported and/or proximity to turbines is near enough to be heard, seen or "felt" (vibration, etc.) • Locate comparable areas of homes that are at least 10 miles from any wind turbines. Physically inspect and preview such locations, to insure either no view or extremely distant view, and to determine the presence or lack of any other potential, known and/or visible disamenity or potential value influencing factors. (I.e., landfills, superfund sites, airports, lakes, national forest or parks, recreation areas) • Contact local planning, zoning or other government officials to determine if there are or have been any wind energy projects planned, proposed, announced or even rumored in the potential Control location, in order to insure that there is no pre-construction impacts or stigma that would render the Control data potentially biased, without any visible indication of such impact. • Determine date(s) turbines went on line at Target locations, as well as when they were announced, either via media, public discussion or when leases are known to have been signed by first lessor/land owners in each project area. • To the extent that MLS archived data allows, research all sales within near (Target) area(s) and far (Control) area(s), for the period of time beginning at least 2 to 3 years before leases were known and/or project announced, up to the commencement of this phase of the study. • HVTL facilities. The preceding scope of work should be repeated to include other infrastructure necessary to construct and operate the LW project, i.e. High Voltage Transmission Line (HVTL) towers, lines and right of way; transformer facilities or sub-stations. It is expected that study

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distances of Target sale data research be reduced to a distance(s) that is relevant to HVTL and other facilities, based on visibility, audibility and aesthetic considerations evident in the real estate market, with distance of sale data from such facilities be related to proposed LW HVTL facilities.

Phase Ill -Analysis This phase of the study is designed to determine what differences, if any, are indicated by comparison of Target and Control area databases, and should progress from a macro to a micro analysis. The macro analysis will reveal any overall market statistics on a prima facie basis. The micro analysis will utilize sub-sets of paired sale and resale data to compare "like kind" properties in the Control area with Target area sales, and after adjusting for any other differences between each paired data set, indicate any difference in value that can be attributed to turbine (or HVTL) proximity. Particular analysis tasks include:

• Determine number/% of homes listed via traditional MLS for both Target & Control areas. • Determine cumulative days on market (CDOM) for all unsold listings. • Determine cumulative days on market (CDOM) for all sold listings. • Determine sale price as % of list price, for all sold listings. • Determine% of listings sold, expired, cancelled or withdrawn for each Target and Control area. • Determine Sale Prices of all homes in Target and Control areas. • Input square footage, age, land size, Number of rooms/bedrooms/bathrooms, garage, out buildings, of each home, per MLS and/or Assessor records. • Inspect all Target and Control area home sales. • Rate the Quality of Construction and Condition of each sale, using the criteria described in the Uniform Appraisal Dataset (UAD) guidelines. See Appendix C • Locate sales near turbines that sold and measure distance from nearest turbine as well as approximate number of turbines visible from each sold home. • Create a list or data base of sold homes in Target areas. Compare via photographs and visual inspection, as well as type, age and condition of homes with Control area homes. • Create adjustment grid for comparison of paired Target and Control sale data. • Analyze all available information to select and "pair" Control area homes with Target area home sales. • Refine adjustments to Control sales, based on supported and reasoned adjustments for all known differences EXCEPT for turbine proximity, leaving any value difference isolated to that one variable - turbine proximity. • Summarize and analyze results of the individual paired sale analyses. • Research prior sales in target and Control areas to determine resales. • For each resale, calculate rate of change in value of median sale price for same time period as 1 1 1st and 2"d (and 3'd, 4 h, 5 h , etc.) resale. • Summarize and analyze results of individual resale comparison analyses. • Attempt to interview parties to any of the preceding transactions to determine general or specific awareness of turbines and any known or reported impact on the living environment (house, land, yard, out buildings, livestock, pets, crops) • Realtor survey to determine whether there has been any market resistance to either Target or Control locations that they are willing to discuss.

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Community Growth It is proposed that a parallel market study be performed utilizing informal research interviews where possible, and both an inferred and fundamental market analysis in order to cross-check and verify whether both methods are supportive of a single conclusion.

The inferred market study would include additional research and analysis tasks while researching the Target and Control locations. Interviews of brokers, builders and local officials should be attempted to determine any local feedback regarding market supply and demand factors, trends or conditions, as well as any perceived impact on supply and demand from any source (i.e., opening or closing of a major employment source; new transportation linkages; demographic shifts or population changes, etc.). Specific tasks of the inferred market study include: • Obtaining new construction permit data for single family homes, including location/address, reported construction cost, lot purchase price (or estimate, if no recent lot sale) • Determining distance and view from new construction toward any turbine, HVTL facility or other non-residential or rural land uses. • Compiling the data for each Target and Control location to determine if any difference regarding inferred demand is evident. • Prepare a model cost approach analysis in order to determine the total cost plus required profit margin to create incentive for new construction on typical market terms. • Comparison of cost model to results of the property value study, to determine whether financial feasibility is indicated to warrant new single family residential development.

Specific tasks for the fundamental market study include: • Use of MLS functions for preparing the FNMA 1004MC addendum form for a range of narrowly defined homes (i.e., 2 BR, 3 BR, 4 BR) in both the Target and Control areas. • Analysis of the absorption rate of inventory in both study areas, in order to determine the fundamental supply and demand relationship.

Further, since LW is a subsidiary of Apex, McCann recommends that the developer be asked to provide detailed scaled maps and photographs of any new construction near any of their other wind energy projects, as well as any other details of timing, pricing and absorption of any of the new construction homes near their projects.

Phase IV- Reporting The report preparation phase of the study should include a detailed description of all facts, data, analysis, findings and conclusions, as well as the detailed methodology used and a description of any basis relied upon to form the opinions. The Report should include appropriate graphic representations of the data and analysis, as well as an addendum containing the "raw" information, such as MLS listing sheets, public record documents used, and any other sources of data or information relied upon to develop the study opinions.

Under USPAP requirements, McCann recommends use the most descriptive and transparent reporting possible.

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Phase V - Support McCann or any other appraiser retained to undertake this study should be available to respond to questions and inquiry regarding the professional opinions developed and the basis thereof. It is recommended that an appraiser who has qualified and testified in court and other forums be considered for this study and any supporting testimony, as this is a somewhat unique and detailed type of experience that is not suitable for all appraisers.

Conclusion In conclusion, the prior recommended stipulation for a property value study is intended to be as thorough and inclusive as possible, in order to provide a meaningful outline for a relevant and reliable study. It is possible that there may be limitations on availability of data, for example, if MLS records are not archived in full detail for enough years to overlap the study period and commencement of any wind energy project study locations. It is likely that more than one MLS board and service will need to be utilized for the study, and all MLS data input procedures are not necessarily identical.

Modifications and adjustments to study methodology may be necessary depending on such availability, as well as any disclosure or lack thereof on the part of LW. It is also possible that budget constraints may limit the number of hours that can be devoted to the study, but given the potential for significant loss of home equity of property owners, this concern would seem to be comparatively trivial.

While McCann has not prepared a cost estimate to conduct the study outlined herein, I assume it would be far less than the cost of the LBN L study, which was prepared pursuant to a USDOE $500,000 grant to Berkeley.

Thank you for your consideration, and the opportunity to be of service to the Town of Somerset and the NYPSC.

Respectfully submitted,

McCANN APPRAISAL, LLC

MichaelS. McCann, CRA

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EXHIBIT A

Noble Chateaugay l--::.--~:.::::=-..1 Wind Power in New York State Franklm County Utility scale, operatJonal as or May 201 2 106.5MW

Total installed oeneratlon capacity- 1,407.6 megawatts (MW) Noble Clinton/Ellenburg Clmton County Noble Wethersfield 183MW VVyomlng County Wethersfield Wll'ld ProJect 126MW 1Nyonung County Map!eRJd9e LeWis County 6.6MW r------1 320 M-N Fenner Windpower High Sheldon Wind Project Madison County wyom1ng County 30 MW 112.5MW Hardscrabble Wmd Pro;ect Henkimer County 74MW Steel Winds I & II Ene County 35MW Central NY Wind Madison/Oneida Counties 34.5MW

Noble BliSS Windpar1< wyorrnng County Howard Wind Farm Madison Wtnd Farm 101 MW Steuben County Madtson County 53.4 MW Cohocton/Dutch HiU Wtnd PrOJects 116MW Steuben County 116MW

In New Yort< Srare, wind power annually produces enough eJecrrlciry ro power 500,000 homes, and can reduce greenhouse gas emtsstons by as much as 1,560,000 ro11s.

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16 NYCRR § 1000.5 Pre-application procedures. (a) This Section applies to the required preliminary seeping statement and any stipulation setting forth an agreement on any aspect of the preliminary seeping statement and/or the methodology or scope of the studies or program of studies to be conducted in support of the application. It provides for consultation between the Applicant, the public, affected agencies and other stakeholders. (b) Applicants are required to consult with the public, affected agencies, and other stakeholders (providing information to and effective opportunities for input from the public, affected agencies, and other stakeholders concerning the proposal). (c) No less than 90 days before the date on which an Applicant files an application, the Applicant shall file an electronic copy and ten paper copies of a preliminary seeping statement with the Board by filing it with the Secretary at the Albany, New York Offices of the DPS and shall serve copies specifying thereon the date on or about which the preliminary seeping statement is to be filed, as follows: (1) four paper copies on DEC at its central office and three paper copies on each affected DEC regional office; (2) two paper copies each on the commissioner of health, the chair of the New York State Energy Research and Development Authority, and the commissioner of economic development; (3) one paper copy each on the chief executive officer of each municipality in which any portion of such facility is to be located as proposed or in any alternative location listed; (4) one paper copy each on Ag&Mkts, DOS, the attorney general, the department of transportation, and OPRHP; (5) one paper copy each on a library serving the district of each member of the state legislature in whose district any portion of the facility is to be located as proposed or in any alternative location listed; (6) one paper copy on the APA if such facility or any portion thereof as proposed or in any alternative location listed is located within the Adirondack park, as defined in subdivision one of section 9-0101 of the ECL; (7) one electronic copy on the public information coordinator (for placement on the DPS website); and (8) one paper copy on the chief executive officer of any other agency or municipality that would (absent PSL Article 10) have approval authority with respect to any aspect of the proposed facility or interconnections necessary to serve the proposed facility. (d) No less than three days before the date on which an applicant files a preliminary seeping statement, notice shall be given by the

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applicant to all persons residing in each municipality in which any portion of the facility is proposed to be located and in which any alternative location identified is located, and each other municipality that would (absent PSL Article 10) have approval authority with respect to any aspect of the proposed facility, interconnections or related facilities necessary to serve the proposed facility. Notice shall be given by the publication of a summary of the preliminary scoping statement in such newspaper or newspapers, including local community and general circulation newspapers, as will serve substantially to inform the public of such preliminary scoping statement and proposal, in plain language, in English and in any other language spoken according to the most recent United States Census data available by 5,000 or more persons residing in any 5-digit Zip code postal zone in which any portion of such zone is located within the Study Area for the facility. The notice and summary of the preliminary scoping statement shall describe: (1) the proposed facility and its location; (2) the range of potential environmental and health impacts of the construction and operation of the facility and of each pollutant that will be emitted or discharged by the facility; (3) the application and review process; (4) the amount of pre-application funds available for municipal and local parties; and (5) shall designate a contact person, with telephone number, e-mail address and mailing address, from whom information will be available on a going-forward basis as well as contact information for the public information coordinator and DPS website. The notice and summary of the preliminary scoping statement shall also include a statement advising the public how and where persons wishing to receive all notices concerning the proposed facility can file a request with the Secretary to subscribe to receive such notices, including but not limited to notices regarding any proposed pre-application stipulations, and explaining how to utilize the DPS website to access electronic documents concerning the proposed facility. (e) No less than three days before the date on which an applicant files a preliminary scoping statement, the applicant shall also serve a copy of the notice/summary of the preliminary scoping statement upon (1) each member of the state legislature in whose district any portion of such facility is proposed to be located or in which any alternative location identified is located, or in which any interconnections or related facilities necessary to serve the proposed facility are proposed to be located; (2) in New York City, upon the Borough President of any affected borough, and upon the Community Board of any affected areas served by a Community Board; and (3) persons who have filed a statement

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with the secretary within the past twelve months that they wish to receive all such notices concerning proposed or alternate facilities for a particular area or municipality. (f) The fi ling of the preliminary scoping statement with the Secretary shall be accompanied by proof of (a) service of the required copies of the preliminary scoping statement on the persons and entities required to be served enumerated above; (b) service of the required notice of preliminary scoping statement on the persons and entities required to be served enumerated above; and (c) proof of publication of the required notice of preliminary scoping statement. (g) Within 21 days after the filing of the preliminary scoping statement, any person, agency or municipality may submit comments on the preliminary scoping statement by serving such comments on the applicant and filing a copy with the secretary. Within 21 days after the closing of the comment period, the applicant shall prepare a summary of the material comments and its reply thereto, and file and serve its summary of comments and its reply in the same manner as it files and serves the preliminary scoping statement pursuant to Subdivision (c) of this section . (h) Upon the filing of a preliminary scoping statement, DPS shall designate a presiding examiner. DPS may also designate additional hearing examiners to assist the presiding examiner in all duties of the presiding examiner. (i) The presiding examiner shall, among other duties, mediate any issue(s) relating to any aspect of the preliminary scoping statement and the methodology or scope of any study or program of studies concerning which agreement has not been reached and receive any stipulation setting forth any agreement that is reached. If the presiding examiner determines that any language other than English not captured by subdivision (d) of this section is spoken by a significant population of persons residing in close proximity to the proposed facility, alternative locations, interconnections and related facilities and that notice in such additional languages is warranted under the circumstances, the presiding examiner may require the applicant to publish the notice and summary of the preliminary scoping statement in such additional languages. The presiding examiner shall, within no less than 22 days but no more than 60 days of the fi ling of a preliminary scoping statement, convene a meeting of interested parties in order to initiate the stipulation process. G) After the presiding examiner has determined that funds to assure early and effective public involvement have been allocated to municipal and local parties, the applicant may commence stipulations consultations and seek agreement by stipulation with any interested person, agency or

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municipality including, but not limited to, the staff of DPS, DEC, and DOH, as appropriate, as to any aspect of the preliminary scoping statement and the methodology or scope of any study or program of studies made or to be made to support the application . Before any such stipulation is finalized: (1) a copy of the proposed stipulation shall be served by the applicant on the presiding examiner and on the persons who participated in the stipulations consultation process, and shall be filed and served by the applicant in the same manner as it files and serves the preliminary scoping statement pursuant to Subdivision (c) of this section; (2) the applicant shall serve a copy of a notice it has prepared summarizing the contents of the proposed stipulation upon: (i) each member of the state legislature in whose district any portion of such facility is proposed to be located or in which any alternative location identified is located, or in which any interconnections or related facilities necessary to serve the proposed facility are proposed to be located; and (ii) persons who have filed a statement with the secretary within the past twelve months that they wish to receive all such notices concerning facilities in the area in which any portion of such facility is proposed to be located or in which any alternative location identified is located, or in which any interconnections or related facilities necessary to serve the proposed facility are proposed to be located; (3) a copy of a proposed notice shall be prepared by the Applicant and served by the Applicant on the presiding examiner. Thereafter, the presiding examiner shall arrange for the public to be given notice and afforded a reasonable opportunity to submit comments on the stipulation before it may be executed by the interested parties. (k) Any party that executed a pre-application stipulation may not raise objections at the hearing as to the methodology or scope of any study or program of studies performed in compliance with such stipulation. Any other party may timely raise objections at the hearing as to the methodology or scope of any study or program of studies performed in compliance with such stipulation. (I) The preliminary scoping statement shall contain : (1) as much information as is reasonably available concerning the proposed facility, generally in the form (though in less detail) that it will appear in the application; (2) a preliminary scope of an environmental impact analysis containing a brief discussion, on the basis of reasonably available information, of the following items: (i) a brief description of the proposed facility and its environmental setting ;

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ii) potentially significant adverse environmental and health impacts resulting from the construction and operation of the proposed facility including also an identification of particular aspects of the environmental setting that may be affected, including any material impacts or effects identified in consultations by the public, affected agencies, and other stakeholders, and a responsive analysis by the Applicant as to those issues identified in consultations; (!ii) the extent and quality of information needed for the application to adequately address and evaluate each potentially significant adverse environmental and health impact, including existing and new information where required, and the methodologies and procedures for obtaining the new information; (iv) for proposed wind-powered facilities, proposed or on-going studies during pre-construction activities and a proposed period of post-construction operations monitoring for potential impacts to avian and bat species; (v) a description of how the applicant proposes to avoid adverse impacts to the environment and health; (vi) for those adverse environmental and health impacts that cannot be reasonably avoided, an identification of measures proposed to mitigate such impacts; (vii) where it is proposed to use petroleum or other back-up fuel for generating electricity, a discussion and/or study of the sufficiency of the proposed on-site fuel storage capacity and supply; (viii) a description and evaluation of reasonable and available alternative locations for the proposed facility, including a description of the comparative advantages and disadvantages of the proposed and alternative locations, except that a private facility applicant may limit its description and evaluation of alternative locations to parcels owned by, or under option to, such private facility applicant or its affiliates; (ix) if the proposed facility affects any land or water use or natural resource of the coastal area and federal authorization or funding is necessary, a preliminary analysis of the consistency of the proposed facility with the enforceable policies of the New York State coastal management program or, where the action is in an approved local waterfront revitalization program area, with the local program; (x) a statement of the reasons why the primary proposed location and source, taking into account the potentially significant and adverse environmental impacts, is best suited, among the alternatives, including a "no action" alternative, to promote public health and welfare, including the recreational and other concurrent uses that the site may serve, except that a private facility applicant may limit its

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description and evaluation of alternative locations to parcels owned by, or under option to, such private facility applicant or its affiliates and its description and evaluation of alternative so urces to those that are reasonable alternatives to the proposed facility that are feasible considering the objectives and capabilities of the sponsor; (xi) a preliminary identification of the demographic, economic and physical attributes of the community in which the facility is proposed to be located and in which any alternative location identified is located, and a preliminary environmental justice evaluation of significant and adverse disproportionate environmental impacts of the proposed facility and any alternative facility identified that would result from construction and operation considering , among other things, the cumulative impact of existing sources of emissions of air pollutants and the projected emission of air pollutants from the proposed or alternative facility in a manner that is in accordance with any requirements for the contents of an Article 10 preliminary seeping statement contained in 6 NYCRR Part 487 promulgated by the DEC for the analysis of environmental justice issues; and (xii) an identification of any other material issues raised by the public and affected agencies during any consultation and the response of the applicant to those issues. (3) an identification of all other state and federal permits, certifications, or other authorizations needed for construction, operation or maintenance of the proposed facility; (4) a list and description of all state laws and regulations issued thereunder applicable to the construction , operation or maintenance of the proposed facility and a preliminary statement demonstrating an ability to comply; (5) a list and description of all local laws, and regulations issued thereunder, applicable to the construction, operation , or maintenance of the proposed facility and a statement either providing a preliminary assessment of an ability to comply or indicating specific provisions that the applicant will be requesting the Board to elect not to apply, in whole or in part, and a preliminary explanation as to why the Board should elect not to apply the specific provisions as unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality; (6) a description of the applicant, its formation, status, structure, holdings, affiliate relationships, powers (including whether it has or will seek to obtain the power of eminent domain, either directly or indirectly), franchises and consents; (7) a description of the applicant's property rights and interests or those it proposes to acquire to all lands of the proposed facility and

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any private or public lands or private or public streets, highways or rights-of-way crossed by any interconnections necessary to serve the facility such as, but not limited to, electric lines, gas lines, water supply lines, waste water or other sewage treatment facilities, communications and relay facilities, access roads, rail facilities, or steam lines; and (8) any other information that the Applicant may deem to be relevant.

Source http.//WINW3.dps.ny.govNV/PSCWeb.nsf/AII/49775FD17CDEE7F285257C910059DEED?OpenDocument

TITLE 16 DEPARTMENT OF PUBLIC SERVICE Volume A CHAPTER X Certification of Major Electric Generating Facilities Subchapter A Regulations Implementing Article 10 of the Public Service Law as Enacted by Chapter 388, Section 12, of the Laws of 2011, Part 1000

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PROFESSIONAL BIOGRAPHY MICHAEL S. MCCANN, CRA

MichaelS. McCann has been exclusively engaged in the real estate appraisal profession since 1980, and is the owner of McCann Appraisal & Consulting, LLC.

EXPERIENCE His appraisal experience has included market value appraisals and consulting assignments regarding various types of commercial, office, retail, residential, multi-family, industrial and vacant property, along with a wide variety of unique or special purpose real estate, such as limestone quarries, hotels, contaminated properties, etc. He has gained a wide variety of experience in real estate zoning evaluations and property value impact studies, including analysis of utility scale wind turbine generating facilities, gas-fired electric generating plants, shopping centers, industrial facilities, quarries. landfills, ~~ .

CLIENTS He has been retained as an independent consultant to municipalities, state and federal government agencies, private and publicly held corporations, attorneys, developers, lending institutions and private owners & investors, and he is an approved appraiser for the Cook County State's Attorney's Office.

In addition to evaluation of eminent domain real estate acquisitions for a wide variety of property owners & condemning authorities, Mr. McCann was appointed as a Condemnation Commissioner (2000-2002) by the United States District Court - Northern District, for the purpose of determining just compensation to property owners, under a FERC approved federal condemnation matter for a natural gas pipeline project in Will County, Illinois. He has been approved for appraisal assignments by the U.S. Army Corps of Engineers (USACE), Federal Aviation Administration (FAA) and numerous federally funded projects in Illinois and the City of Chicago.

APPRAISAL INSTRUCTOR EXPERIENCE Mr. McCann has been a speaker & instructor at seminars for the Appraisal Institute, the Illinois State Bar Association and Lorman Education Services on topics including the vacation of public right of ways (1986), Property Taxation in the New Millennium (2000), Zoning and Land Use in Illinois (2005, 2006), Wind energy seminars in Illinois, Michigan and California (201 0-2011) and Wind Farm and Land Values for the Appraisal Institute (2012). Community based seminars have been presented for wind energy valuation issues in live seminars and on-line webinars in several states.

EXPERT TESTIMONY Assignments include appraisals, studies and consultation regarding real estate located in 23 states. He has qualified and testified as an expert witness in Federal Court, and for condemnation, property tax appeal and zoning matters in the Counties of Cook, Will, Boone, Lake, Madison, St. Clair, Iroquois, Fulton, McHenry, Ogle & Kendall Circuit Courts, as well as the Chicago and Cook County Zoning Boards of Appeal, the Property Tax Appeal Board (PTAB) and Tax Court & Commissions of Illinois, Wisconsin, and Ohio, Circuit Courts in New Jersey and Indiana, as well as zoning, planning, and land use and County Boards in Texas. Missouri, Idaho, Michigan, New Mexico, Indiana and various metropolitan Chicago area locales.

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He has also been certified as an expert on the Uniform Standards of Professional Appraisal Practice (USPAP) by the Cook County, Illinois Circuit Court. Mr. McCann has substantial experience in large­ scale condemnation and acquisition projects and project coordination at the request of various governmental agencies and departments. These include appraisals for land acquisition projects such as the Chicago White Sox Comiskey Park stadium redevelopment project, the Southwest Transit (Orange Line) CTA rail extension to Chicago's Midway Airport, the United Center Stadium for the Chicago Bulls and Blackhawks, the minor league baseball league, Silver Cross Field stadium in Joliet, Illinois, as well as many other urban renewal, acquisition and neighborhood revitalization projects.

RELATED EXPERIENCE Michael McCann has bought, sold, and negotiated purchase and sa les, and acted as agent for governmental bodies, private property owners and his own account, for residential property, land and commercial property, in transactions in excess of $65 million dollars.

REAL ESTATE EDUCATION Specialized appraisal education includes successful completion of Real Estate Appraisal Principles, Appraisal Procedures, Residential Valuation, Capitalization Theory and Techniques Part A, Standards of Professional Practice Parts A, B and C, Case Studies in Real Estate Valuation, Highest and Best Use and Market Analysis, Advanced Income Capitalization, Subdivision Analysis and Special Purpose Properties, Eminent Domain and Condemnation, and Valuation of Detrimental Conditions in Real Estate offered by the Appraisal Institute. In addition, he has completed the Society of Real Estate Appraisers' Marketability and Market Analysis course, the Executive Enterprises - Environmental Regulation course, and a variety of continuing education real estate seminars, and is current with all continuing education requirements through September 2015.

DESIGNATIONS & PROFESSIONAL AFFILIATIONS The National Association of Review Appraisers & Mortgage Underwriters has designated him as a Certified Review Appraiser (CRA). He was elected in 2003 as a member of Lambda Alpha International, an honorary land economics society, and he served several years as a member of the Appraiser's Council of the Chicago Board of Realtors.

LICENSES Michael McCann is a State Certified General Real Estate Appraiser in the State of Illinois (License No. 533.001252). Temporary licenses have been obtained in numerous states when necessary to comply with state licensing laws for out of state assignments.

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Summary of Testimony on Wind Energy Projects

Year Project Location Subject Matter 2010 New Hampshire, Groton NHSEC & deposition. Turbine project impact on neighboring values. 2011 Michigan, Leelanau Circuit Court & deposition. Turbine impact on neighboring SFR value. 2010 Mass., Wareham ZBA. Turbine project impact on neighboring values. 2008 Illinois, Bureau ZBA. Turbine project impact on neighboring values. 2010 Illinois, Adams County Board. Written testimony re: setbacks and property values. 2008 Illinois, Logan ZBA. Turbine project impact on neighboring values. 2008 Illinois, Tazewell ZBA. Turbine project impact on neighboring values. 2009 Illinois, DeKalb ZBA. Turbine project impact on neighboring values. 2009 Illinois, Mclean Deposition. Turbine project impact on property values. 2007 Illinois, Stephenson ZBA. Turbine project impact on neighboring values. 2009 Illinois, Livingston ZBA. Turbine project impact on neighboring values. 2005 Illinois, Ogle ZBA. Turbine project impact on neighboring values. 2011 Connecticut, Prospect CSC. Turbine project impact on neighboring values. 2012 Ohio, Champaign County Ohio Power Siting Board. Turbine project impact on property values. 2012 Illinois, Lee County ZBA. Turbine project impact on property values; zoning comJ)Iiance evaluation. 2013 Mass., Dennis Orleans District Court, Turbine impact on SFR property value. 2013 Illinois, Boone ZBA. Setbacks and property value impacts. 2013 Indiana, Tipton BZA. Turbine project impact on property values; zoning compliance evaluation. 2015 Vermont Federal lawsuit - turbine project impact on residential property value. 2015 Illinois, Livingston County ZBA. Turbine project impact on property values; zoning compliance evaluation.

Note: Numerous studies, literature reviews, consulting assignments and seminar presentations not included. List is summary of testimony only.

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WIND FARMS, RESIDENTIAL PROPERTY VALUES, AND RUBBER RULERS© by Albert R. Wilson I recently examined a document published by the Department of Energy's Lawrence Berkeley National Laboratory titled "The Impact of Wind Power Projects on Residential Property Values in the United States: A Multi- Site Hedonic Analysis" (hereafter "Report")' I express no opinion concerning the impact of wind power projects on residential property values and instead focus on the underlying methods used in the development of the Report, and the resulting serious questions concerning the credibility of the results. As stated in the title the primary bases for the conclusions drawn in the Report are hedonic analyses of residential real estate sales data. A hedonic analysis in turn is based on the assumption that the coefficients of certain explanatory variables in a regression represent accurately the marginal contribution of those variables to the sale price of a property. Regression A regression is a statistical process that attempts to quantify a hypothetical relationship between certain factors (explanatory variables) and the value of an outcome (dependent variable). The explanatory variables are related to the dependent variable through a mathematical formula generally referred to as a regression model. In real estate the explanatory variables are usually such things as size (square feet), number of bedrooms and bathrooms, garage space, presence of basement, location, and the like. The dependent variable is sales price. In the Report the authors are basing their analysis primarily on a set of regression models with the inclusion of variables that attempt to estimate the possible impact of distance from and view of turbines. The mathematics of regression are executed through a computer program that assigns numeric values to the multipliers (coefficients) of the explanatory variables in such a way that when the estimates of the sa les prices computed by the regression model are compared to the actual sa les prices of the properties upon which the regression is based, the difference is at a mathematical minimum based on some measure (e.g. R2or Rsquared, the coefficient of determination). This process is accomplish through the computer program by continually changing the coefficients of the explanatory variables, recalculating all of the estimated sales prices using the new coefficients, comparing the estimated to the actual sales prices and repeating the process until the minimum difference given the data and the regression model is achieved. Using the hedonic analysts' favorite measure of R2, the usual hedonic interpretation is that if R2= 1 then the regression model explains all of the differences between the estimated and actual sa les prices. If R2= 0 then none of the differences are explained and the regression model is a failure . If the underlying regression is not explanatory of the actual data then the dependent hedonic analysis cannot be explanatory. ©by Albert R. Wilson, 2010 Page 1 of 6 There are literally thousands of possible real estate regression models. The literature in the hedonic field generally exhibits little agreement on a model's mathematical form or the

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explanatory variables that should be included., Absent published and recognized standards on the validation of data, model development and testing, and calibration of the model against the real world market, a regression may be nothing more than a rubber ruler that can be stretched to provide a desired resulb Standards However, a well-developed and tested set of standards do exist. Those standards are published and maintained by the International Association of Assessing Officers (IAAO) and are explicitly for the accurate and reliable estimation of sales prices using regressions, not simply for appraisal purposes as some allege.3 These standards are employed many hundreds of times a day and are continually tested against the market. For comparison purposes it should be noted that the usual hedonic regression model has an R2from 10% to more than 60% less than an acceptable regression under IAAO standards (IAAO R2better than 0.90 versus the best R2cited in the Report of 0.78- 13% less-for example). No satisfactory scientific explanation of why a regression with a smaller R2will provide more accurate and reliable hedonic results has been provided. There is no evidence whatever that the Report employed any standards. While the authors refer to the literature as support for their method this is little comfort as there is no evidence that any recognized standards were applied to the work reported in that literature. Further, the literature contains a significant number of papers illustrating some of the problems associated with hedonic studies ranging from an absence of proper validation of the underlying data, to models deliberately manipulated to magnify the desired impact, to improper use of indicator variables, to a failure to check the results of the models against the market to determine if the proclaimed results actually represent market behavior.4 A common problem with the lack of adherence to standards is that the apparent magnitude and statistical significance of the coefficients of interest may be increased by simply not including important explanatory variables in the regression, generally known as the "omitted variable" problem.s This omission may be the result of a lack of understanding of residential , Atkinson, Scott E.; Thomas D. Crocker, "A Bayesain Approach to Assessing the Robustness of Hedonic Property Value Studies," Journal of Applied Econometrics, Vol. 2, 27-45 (1987). 2 Wilson, Albert; "Real Property Damages and Rubber Rulers,· Real Estate Issues, Summer, 2006 3 Standards on Valuation Models, IAAO.ORG 4 SEE FOR EXAMPLE Rogers, Warren, "Errors in Hedonic Modeling Regressions: Compound Indicator Variables and Omitted Variables," The Appraisal Journal, April, 2000 s Rogers ibid. ©by Albert R. Wilson, 2010 Page 2 of 6

sa les price behavior or from other considerations but the result is the same, skewed coefficient values. There is strong evidence of an omitted variable issue in the Report. A method of increasing the apparent importance of a coefficient is to aggregate data into increasingly more expansive variable definitions. This procedure was used in the Report and is acknowledged by its authors. "The Base Model described by equation (1) has variables that are pooled, and the coefficients for these variables therefore represent the average across all study areas (after accounting for area fixed effects). An alternative (and arguably superior) approach would be to estimate coefficients at the level of each study area, thereby allowing coefficient values to vary among study areas."s

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The consequence of this aggregation is to distort the quantitative meaning of the coefficients. Possible situations in the Report include sales prices in areas of declining population and therefore decreasing demand-a majority of the areas examined-are not directly comparable to sales prices in areas of increasing population and therefore increasing demand, but these markets were combined in the Report. Also in the Report is the aggregation of markets such as those in Washington-used as the base for comparison to all other areas by the Report-where the urban market of Kennewick was aggregated with the rural market of Milton-Freewater 42 miles distant. The failure to recognize and account for the need for homogeneity of markets is a common failing of hedonics. One of the major issues concerning the hedonic approach on a nationwide basis in ignoring local market homogeneity is addressed by the 2009 Coldwell Banker Home Price Comparison lndex.1lt makes the point that local markets are critical. For example a house in Grayling, Michigan sells for $122,675 while in La Jolla, California the same house sells for $2,125,000. Creating an average sales price representing houses from nine states and at least 20 different markets-as the Report did-is a gross oversimplification that cannot provide for the specificity required to answer a micro-question such as an influence on sales price from a highly localized condition-distance to or view of a wind energy project. This problem becomes critical when it is recognized that less than 1 0% of the sales transactions used in the Report had any view of turbines, and that only 2.1% had a view rated greater than minor. The study is dominated by transactions where no influence is reasonably likely. The argument that the report is "data rich" may in fact be an overstatement of the situation because of this issue. It is worth noting that IAAO standards discourage the use of regression for the analysis of the impact of a proximate condition on value precisely because of the small number of potentially influenced sales available for analysis by regression. Instead the use of the classic three approaches to value (sales comparison, income and cost) is encouraged as s Report page 134 7"2009 Coldwell Banker Home Price Comparison Index," as cited in CNNMoney.com "Same 4- bedroom house -Wildly different prices", September 23, 2009. © by Albert R. Wilson, 2010 Page 3 of 6

more reliable under these circumstances.s A major issue pointed to in the literature is the influence of errors in the data. A recent article reported that, using an IAAO certified regression, as few as 15 erroneous sales skewed the estimated sales prices by at least $500 for all but 43 of the 20,000 sales estimated.9ln another instance a single error in the age of a property out of some 18,000 data elements skewed the results of the regression from a finding of an influence on sales price to no influence on sales price. Absent access to the Report data these and similar issues cannot be evaluated. It is worth noting that there is no evidence in the Report that any sales confirmation work that might have revealed this issue was undertaken. Peer Review The authors of the Report claim it has been peer reviewed and the method and results are supported by the peer reviewed literature. Unfortunately this claim means far less than it seems. Peer review in the context of this Report and the referenced literature consists of

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the reading of the report by several presumably knowledgeable individuals and the provision of comments to the authors based on that reading, nothing more. 1o.11. 12 The authors may or may not have addressed all of the issues raised by the comments. What is missing from this process is any semblance of testing for the scientific validity of the results, a testing rendered impossible by the refusal of the Report's authors to provide the underlying data. Absent the data it is not possible to independently validate the s "Standard on the Valuation of Properties Affected by Environmental Contamination", IAAO.ORG 9 Cholvin, Brooke, Danielle Simpson, "Assessing Mortgage Fraud," Fair & Equitable, IAAO, August, 2009 1oChan, Effie J. , ''The 'Brave New World' of Daubert: True Peer Review, Editorial Peer Review and Scientific Validity, " New York University Law Review, April, 1995, 70, N.Y.U.L. Rev 100. ALSO, Haack, Susan, "Peer Review and Publication: Lessons for Lawyers," Stetson Law Review, Vol. 36, 2007. ,,"The Editor reads each submitted manuscript to decide if its topic and content of the paper fits the objectives of JRER. Manuscripts that are appropriate are assigned anonymously by the Editor to one member of the Editorial Board and at least one other reviewer .... The referee presents a critique to the Editor who forwards it to the author. Each author should be encouraged to resubmit the manuscript for publication consideration. The Editor makes the final decision regarding re-submissions ... ." Editorial Policy and Submission Guidelines, Journal of Real Estate Research, American Real Estate Society, Volume 31 , Number 2, 2009. 12 "The mistake, of course, is to have thought that peer review was any more than a crude means of discovering the acceptability-not the validity-of a new finding. Editors and scientists alike insist on the pivotal importance of peer review. We portray peer review to the public as a quasi-sacred process that helps to make science our most objective truth teller. But we all know that the system of peer review is biased, unjust, unaccountable, incomplete, easily fixed, often insulting, usually ignorant, occasionally foolish, and frequently wrong." "Genetically modified foods: "absurd" concern or welcome dialog?" Richard Horton, editor of Lancet, 1999; 354: 1314-1315 © by Albert R. Wilson, 2010 Page 4 of 6

accuracy or reliability of the data, replicate the analyses, test alternative regression models (say models that meet IAAO standards), or calibrate the results against the real world market. Absent such scientific testing we have nothing more than opinion upon which to base an estimate of the credibility and applicability of the results. At best a peer review-as that phrase is commonly used in this field-with respect to both the Report and the literature addresses only the acceptability of the paper for publication but does not in any meaningful way address the validity of the underlying work. Hedonic Analysis Hedonic analysis depends entirely on the accuracy and reliability of the underlying regression. If the regression does not conform to recognized standards then we have no independent assurance of that accuracy or reliability, as in this case. Hedonic analysis also adds a new requirement, specifically that the coefficients of the explanatory variables of interest are quantitatively accurate and represent only the marginal contribution of that explanatory variable to the sales price. This is not a requirement of regression. In this case there is some doubt that the hedonic requirement has been met. First, computer reg ression programs are mindless, they simply follow a set of instructions until they are fulfilled and then print the results. It is a simple matter to demonstrate that omitting or adding an explanatory variable will frequently influence both the magnitude and statistical significance of the other explanatory variable coefficients. It is also possible to

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include a totally meaningless explanatory variable and achieve statistical significa nce for its coefficient, making it appear meaningful. Absent the application of standards regressions may easily meet the needs of junk science. Second the accuracy and validity of the coefficients of hedonic interest (i n the Report the coefficients associated with View and Distance) must be separately tested to determine if they comply with the hedonic requirement of accurately and only representing the explanatory variables. In the literature-as in the Report-the usual test employed is that of the statistical significance of the coefficient. Unfortunately all this test may tell us is that the coefficient is statistically unlikely to be zer0.13. 14 Knowing that a number is not likely equal to zero does 13 Aithough difficult to read the following covers both statistical and economic (scientific) significance in some detail, Ziliak, Stephen T., Deirdre N. McCloskey, "The Cult of Statistical Significance", The University of Michigan Press, Series: Economics, Cognition, and Society, Ann Arbor, Ml and particularly the reference materials cited. 14NOTE that the null and alternative hypotheses in a test of significance are required to be mutually exclusive and collectively exhaustive. The test of significance for a coefficient uses the null hypothesis of equality to zero but the alternative hypothesis is rarely stated. It appears that the hedonic analyst uses the idea that if the null can be rejected, then the coefficient must represent the marginal ©by Albert R. Wilson, 2010 Page 5 of 6

not tell us anything about what it does represent or its importance to an analysis. To determine if the coefficient has any hedonic value the test must be for the economic significance of the coefficient. Specifically a proof that the coefficient accurately and only represents the marginal contribution to sales price for that explanatory variable, and that it is of sufficient magnitude to provide a significant impact on sales price. There is no evidence of such testing in the Report, or indeed in the referenced supporting literature. In Concu lsion While I have other issues with the Report and again reiterate that I have no opinion on the influence of wind farms on residential sales prices, the concerns I have addressed here lead to the conclusion that the Report should not be given serious consideration for any policy purpose. The underlying analytical methods cannot be shown to be reliable or accurate. The reasons for this conclusion discussed here may be summarized as: 1) Lack of access to the underlying data prevents the independent validation of the data, replication of the analysis, testing of alternative analyses, or testing of the conclusions against the real market. 2) The peer review process used for both the literature and the Report can only determine the acceptability of the papers for publication. It cannot reveal the validity, accuracy or reliability of the work behind the papers. 3) Given the peer review conducted, the fact that no published and recognized standards for the development of an accurate and reliable regression on sales price were used render the Report of highly uncertain value for any purpose. 4) The exclusive use of a test of statistical significance only indicates that the coefficients for Distance and View variables are not conclusive. What we do not kn ow is what those coefficients actually represent. Only tests of economic

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significance would provide an answer, and none has been conducted. 5) Low explanatory power, 13% less than an acceptable minimum for an accurate reg ression on sa les price. contribution of that variable to the sales price. Unfortunately, as explained earlier, there is no basis for that assumption because there is the strong possibility of many other influences on the coefficient. © by Albert R. Wilson, 2010 Page 6 of 6

MA.151212 Page 30 of 30 EXHIBIT 8 CHRIS COLLINS 11 l7loNc.wonut Ouu.c,.Nr. WASIIINGfON. OC 20515 27ru 0 1sm•c1 New Yonte 1~021 225 5265 Orr•ct

COMMITTEE ON 2613 Wumu OiiiVl, Swu IJ ENERGY AND COM MERCE W llliAM~VII.LI . NV 111271 17161634 2324 • COMMUNICA liONS & Tl CJ INOl.OOY 128 M"'" S 1nrr. T • H 111.LHI Gu.cs• o, NY 14454 • 0. r • ,tiT 8f INVI.STIGI\TIO NS Cll:ongress of tbe ~niteb ~tates (5651 519-4002 1t)ouse of ~epresentattbes

December 8, 2015

Mr. John Conger Ms. Elizabeth Ray Deputy Under Secretary Vice President Department of Defense Mission Support Services Installations and Environment Federal Aviation Administration 3400 Defense Pentagon 800 Independence Ave SW Washington, D.C. 20303 Washington, D.C. 20591

Dear Mr. Conger & Ms. Ray,

I am writing you to share my concerns with a proposed project in my district. I recently received a letter from the Niagara Military Affairs Council (NIMAC) regarding a proposal by APEX Clean Energy to construct wind turbines along the shoreline of Lake Ontario. I have included the letter for your reference. This letter raises serious concerns with the potential project and its proximity to the Niagara Falls Air Reserve Station (NFARS) military operating area.

1 NFARS was established in 1955 and is home to the Air Force Reserve Command's 914 h Airlift 1 1 wing, the 328 h Airlift Squadron, and the New York Air National Guard's 107 h Airlift Wing. Currently, the Air Force Reserves flies the C-130 mission and the Air National Guard has taken on the Remotely Piloted Aircraft mission. NF ARS employs nearly 3,000 service members and civilians and provides economic growth and stability to the Niagara County and its surrounding communities.

If approved, the APEX Clean Energy proposal would put 70 wind turbines that stand 600 feet tall along the shores of Lake Ontario, in close proximity to the base. Encroachment is one of many key factors the military uses when detennining the future of a base. Currently, NF ARS is ranked favorably in that area and we cannot afford to allow any project to move forward that would jeopardize its future.

We have serious concerns that these wind turbines will impede the current airspace, making the base less viable for future missions. In 1995, the base was reviewed for closure during a Base Closure and Realignment Commission (BRAC). It was again reviewed for closure in a 2005 BRAC, and again in 2012 during the US Air Force Structure Adjustment. With an ever-present BRAC threat to the base and talks of another round in the next few years, we can not risk these wind turbines jeopardizing the future of the Base and all those who are supported by it.

www.ChrisCollins.house.gov PIIINTtO ON R' CVCl.l 0 PAl'(A We must ensure that the future of the base remains viable and that any proposed projects do not interfere with its radar and flight operations. I am asking that before any decision is made, both the Federal Aviation Administration and the Department of Defense complete a thorough study of any potential impacts these structures would have on current and future operations at NFARS. ez CHRIS COLLINS Member of Congress

Cc: The Honorable Andrew Cuomo, Governor of New York EXHIBIT 9 ARCHITECTURE ENGINEERING PLANNING ENERGY SERVICES CONSTRUCTION MANAGEMENT

wenq.S

MEMO

To: Town of Somerset From: Andrew Reilly, PE, AICP- Wendel Date: January 11, 2016 RE: Lighthouse Wind Project Preliminary Scoping Statement Comments

lighthouse Wind, LLC has submitted their Preliminary Scoping Statement (PSS) to the New York State PSC in accordance with the Article 10 Process requirements. Based on Article 10 of the PSL, the purpose of the PSS is to develop the scope or program of studies to be conducted in support of a Certificate Application. Although these studies are not called an EIS (Environmental Impact Analysis) in Article 10, NYS has articulated that they are as thorough and protective of the environment as an EIS.

Wendel, as Town Engineer and Planner, and as the consultant to the Town's Wind Energy Committee (who have issued an extensive report), is providing the following comments on the Preliminary Scoping Statement.

The PSS is similar to a scoping document under the New York SEQR process. The purpose of a scoping document is to articulate the potentially significant environmental impacts associated with a proposed project that will be evaluated in an Environmental Impact Statement. The scoping document will also identify not only what will be studied, but how it will be studied, what mitigations should be analyzed and alternatives that should be studied. The EIS also establishes baseline information about the existing environmental conditions and the natural and cultural resource base.

Our first general comments are as follows:

Since the proposed project is not well defined at this time (exact location, number and size of the proposed units not known), the "EIS" will be more like a Generic EIS. In a Generic EIS, the scoping document should not only define the potential impacts but in the analysis identify how the constraints and consequences of the narrowing of future options are undertaken (how the impacts of different alternatives will be evaluated once greater specifics are identified). In this respect, the scoping document lacks information on how this will be accomplished and therefore is inadequate.

A GElS would help to establish the criteria to help determine how and where future wind turbines are located in the Town; which is very similar to what the Wind Energy committee recommended to the Town Board for the Town's new Wind Energy law.

CONFIDENTIAUlY NOTICE: This memo transmissions is confidential and is intended only for the person(s) named above. Its contents may also be protected by privilege, and all rights of privilege are expressly claimed and not waived. If you have received this memo In error. please call us immediately and destroy the entire memo. If this memo is not intended for you. any reading. distribution. copying or disclosure of this memo Is strictly prohibited. In general, there are many statements in the PSS that are conclusions that should be removed, as they have not been substantiated through studies and are therefore misleading to the readers of this document.

The remainder of our comments relate specifically to the technical aspects of the PSS and are based on us reviewing the document like we would review an EIS scoping document. Our comments are focused on those issues that relate to the work done by the Wind Energy committee, our work as Town Engineer and Planner, and our specific expertise.

The following are our technical comments:

1. In the Introduction Section, there needs to be a better description of the overall process. This is important as most of the public, orga nizations and some agencies are unfamiliar with this process. Once the PSS is commented on, who determines and how do they determine what the final "scope" is? Once the "studies" are completed, who can review them and what is the process to comment on them? In the decision making step, how are the conditions, mitigations, requirements established in these studies enforced, and how are the local governments involved in this enforcement? 2. In the "Description of the Proposed Facility" section, remove the statements about industrial uses being interspersed throughout the project area (this is not true and is misleading). 3. land Use a. Again, remove the statement about industrial uses being interspersed throughout the project area. b. Identify how land uses will be identified and mapped in the project area and in the area surrounding the project area and to what distance will they be mapped. The statement in the PSS that the "Project is expected to be largely compatible with the land uses in and around the project site, based on the provisions of the Comprehensive Plan and zoning laws" should be removed until information and analysis is provided supporting this statement. c. How will the Goals and Objectives of the Town's Comprehensive Plan and the vision of the community be evaluated against the project? How will this project help the Town achieve its vision and implement the Plan or how will it inhibit the Town reaching its goals? As Town Planner and author of the Plan, it should be noted that it is our opinion that the project will not support the Plan's vision and is actually in direct conflict with the Plan (for example; the Agri-tourism area of the Plan will be negatively impacted and the overall rural character of the Town will be permanently changed). d. Other Regional Comprehensive Plans should be identified and evaluated against the project. They include the Niagara Communities Plan, the Regional Framework for Growth, the WNY Sustainability Plan, and the Regional Economic Development Plan to name a few. e. This section of the PSS identifies, in general, the agricultural components of the project area, but does not offer a methodology on how to study the impacts of the project on agriculture. The Town's Wind Energy committee's recommendation/report includes study requirements including the study of the impact on "air drainage". Statements about being in compliance with local zoning and the support of agricultural protection must be removed from the PSS. This would need to be substantiated in the studies.

4. Electric System Effects- need comment from a specialist 5. Public Health and Safety a. Remove the irrelevant statements about significant positive impacts to public health. These statements presume that the project will result in the closing of other types of energy generating stations. This may not be the case. b. Remove the statement that existing emergency services will be sufficient to address any public health and safety issues (this needs to be shown in the studies). For example, how will the ability of Mercy Flight to service this area be affected by the project. Include in the PSS how the studies will be coordinated with local emergency service providers. c. The statements concerning ice shedding, blade throw and tower collapse must be removed from the PSS and substantiated through studies/ calculations and case histories (see proposed Town law). The PSS should include the study and analysis of technologies to reduce or eliminate problems with ice shedding and blade throw (such as sensors and automatic shutdown of the turbines once problems are monitored. d. The applicant needs to utilize the new setback requirements recommended by the Wind Energy committee, which will be incorporated into the Town's new WECS Law. e. Comments from other specialists will be provided on the Public Health and Safety section of the PSS.

6. Noise and Vibration a. Remove the statement that sound levels along the Lake Ontario shoreline are expected to be typical of moderately developed suburban areas. These are not suburban areas! b. Identify how long construction noise will take place. In this regard, identify other mitigations for the long term construction related noise impacts (for example; no construction on the weekend, etc.). c. The collection of noise leve l data at six (6) locations seems to be totally inadequate. Background noise levels should be obtained at all sensitive receptors (Provide how these will be identified in the PSS document). d. The specific type of turbine for this project should be identifieci and actual operational noise results should be obtained (not just manufacturer's data). e. Identify and analyze technology changes and methods to reduce noise impacts. f. Comments from other specialists will be provided on this Noise and Vibration section of the PSS.

7. Cultural Resources a. The applicant must identify all homes and structures (including barns) that are greater than 50 years old. Included in this work should be the identification of all structures eligible for inclusion on the State Register and any locally significant sites/ structures. b. Comments from other specialists will be provided on this section of the PSS.

8. Geology, Seismology and Soils a. A Mitigation Plan should be identified for any impacts to private wells and sept ic systems, foundations, public roads, and infrastructure from vibration due to construction related activities (and the operation of the turbines). b. Criteria need to be identified for locating turbines in areas where blasting or pile driving will occur, (minimum setbacks from structures, roads, infrastructure, etc.). c. Comments from other specialists will be provided on this section of the PSS.

9. Terrestrial Ecology and Wetlands; comments to be provided by specialists 10. Water Resources and Aquatic Ecology a. There may be wells utilized by farmers in the study area. These should be identified, along with a discussion of potential impacts. b. For stormwater, identify the parameters for dealing with stormwater not only during construction (sediment and erosion control plans) but after construction. These sites appear to be close to or exceeding 1 + acres of disturbance and therefore will require some level of post construction stormwater control. Also, some of the turbines may be located close enough to one another to also warrant taking them together under the SWPPP. Thoroughly describe how the project will meet NYS and Town of Somerset Stormwater requirements and the facilities that will be constructed to meet those regulations. The impacts of these facilities must also be identified in other environmental sections of this PSS document. These facilities, for example, will impact additional lands, streams, agriculture, etc. c. Analyze the alternative stormwater facilities that could be constructed to mitigate quantity and quality stormwater impacts. Determine which facilities will best reduce the impacts of this project and minimize impacts to other environmental features (agriculture, groundwaters, land uses, etc.) d. Discuss the impacts to groundwater and surface waters due to the construction of large concrete foundations. Discuss and analyze any leaching problems off of these concrete foundations. Also discuss and analyze impacts to groundwater flows due to these large foundations potentially impacting the flow of these ground waters. e. Comments from other specialists will be provided on this section of the PSS.

11. Visual Impact a. Per the Wind Energy committee's recommendations for a new law, visual impacts should be performed for not only visually sensitive sites but for all residential structures. b. In accordance with the results of the Wind Energy committee, shadow flicker should not be minimized but eliminated from any residential structure. c. The actual finalized locations and height of the turbines will be affected by the visual impact analysis. Tu rbines should not be visible from residential or important cultural resources (historic structures, parks, the Seaway Trail, present and future tourism areas, etc.). d. Mitigations and alternatives to be analyzed include; location of the facilities, size of the units, screening/buffering, lighting, color, etc.

12. Effect on Transportation a. The final constructed project will not generate large quantities of traffic, but it will create problems during construction, and after construction for automotive and non-automotive transportation. b. Construction vehicles and delivery routes must be clearly identified and impacts to these roadways analyzed. Impacts include damages, improvements and modifications to road structures, drainage systems, infrastructure within the roads, vegetation along the roads, signage, traffic control structures, bridges, culverts, etc. Methodologies for coordinating this analysis with Town, County, New York State and Federal agencies need to be identified. c. Mitigation Plans must include determinations on whether modifications to roadway systems will be left in place or returned to original conditions. e. The studies must include the results of meetings with NIMAC and how the project will impact the air base at the Niagara Falls Airport.

13. Effect on Communications (include airport and air base impacts): Other specialists to provide comment on this section of the PSS. 14.Socioeconomic Effects a. The Town has identified portions of the project area (in the Comprehensive Plan) as areas for agri-tourism. How would this project impact the Town's ability to generate agri-tourism in the area? b. The Town's Wind Energy committee has clearly identified the potential economic impacts of industrial grade turbines and these proposed concepts for a new law should be utilized in this PSS. These socioeconomic issues/ impacts include; tax impacts, costs to infrastructure, business impacts, tourism and agricultural impacts, home values, real estate impacts, etc. Mitigations to evaluate include property value guarantees and posting of a bond to cover property value losses.

15. Environmental Justice: No comment

16.Eiectric and Magnetic Fields: No comment (see others)

17.Consistency With The NYS Coastal Management Program and Local Waterfront Revitalization Program Areas a. Remove the unsubstantiated statement that the project is anticipated to be consistent with all applicable policies of the NYS CMP. b. Remove the unsubstantiated statement that the project is anticipated to be consistent with the policies set forth in the Town of Somerset LWRP. c. Methodologies to evaluate the project's consistency with the NYS CMP and Town LWRP must be provided. These methodologies must include coordination with the NYSDOS and the Town of Somerset to assist in those evaluations. d. A mitigation/ alternative that needs to be evaluated is restricting the turbines to a greater setback distance from the waterfront areas (see the Wind Energy committee's recommendations and the letter received from Fish and Wildlife.)

18. Benefits of the Preferred Alternative a. It is noted in the PSS that " ... the Certificate Application will provide a statement to explain why the preferred alternative is best suited to promote public health and welfare." Why is this not being performed in the Environmental Impact Analysis? Is it not a requirement of environmental analysis (EIS's) in NYS to complete an alternatives analysis? b. The PSS and the environmental analysis should at least include a methodology to evaluate the alternative site selection process for each wind turbine location. This is extremely important for the siting of these structures.

19. Demographic, Economic, and Physical Attributes of the Local Community a. The PSS refers the reader to Section 2.12 for this. Section 2.12 is just the Socioeconomic Effects section and does not include all of the demographic, economic and physical attributes of the communities impacted by this project. b. The PSS should refer to all of the appropriate sections here, but should also summarize all of the baseline attributes of the communities that will be generated for the environmental analysis.

20.0ther Material Issues Raised By the Public a. We are assuming that other issues will be raised during the PSS comment process. b. Looking at the work of the Somerset Wind Energy committee, the following issues were missed: the amount of materials that will be removed from the site or transported to the site, impacts to hunting in the project area, impacts to the State Park, impact to the dark skies in Somerset and viewing of stars, liability issues for the Town, lifespan of the turbines/ removal bonds, mitigations such as baseline and post construction studies, homeland security (Air base impacts), power storage (installations of batteries), etc. (see report from Town of Somerset Wind Energy committee).

If you have any questions concerning this memo or the issues raised in it, do not hesitate to contact us. EXHIBIT 10 TOWN OF" SOMERSE T

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Somerset, NY 14012 ~ o;rl!chons sa,~!* EXHIBIT 12 GREAT LAKES Great Lakes Seaway Trail, Inc. PO Box 660 Sackets Harbor, NY 13685 315-646-1000 www.seawaytrail.com

February 11, 2015

NYS Board on Electric Generation Siting 3 Empire State Plaza Albany, NY 12223·1350

Re: Niagara Orleans Lighthouse Wind Farm Project Project 14-F-0485

To Whom It May Concern:

I am writing this letter as the CEO of the Great Lakes Seaway Trail, to advise your Board of our concerns regarding the proposed wind farm project proposed for Orleans and Niagara Counties in the Route 18 corridor.

Route 18 through most of Orleans and Niagara County is the designated route of the Great Lakes Seaway Trail, a federally designated National Scenic Byway. It is our position that the scale and environmental impacts of the towers would be detrimental to the view scape and agricultural nature of the trail in this area. The Lake Ontario Shoreline and lake plain are part of a well-documented avian migration flyway; the towers would represent a significant threat to bird populations well beyond western New York.

We also have an overarching concern regarding the vitality and livability of all of the communities along the trail. We are concerned that the industrial scale and environmental impacts of the wind turbines would be a significant negative impact to nearby communities. The legislation creating the Byways has been adopted by local municipalities and is embedded in their Zoning requirements.

The Great Lakes Seaway Trail is not opposed to development which is economically beneficial to the area; however, we seek to ensure that the natural and scenic resources of the area are carefully addressed by those empowered to approve such development. Please advise of any public hearings or public information available regarding this project.

Sincerely,

John P. Hall CEO, Great Lakes Seaway Trail ~-=---==--··:--=:------~:. --·- .- ·- ----~ ··.~ · ~ -- - ··-. ------~~ - _,__.,..... __ ....,._,___

. ·. EXHIBIT 13 DoD Preliminary Screening Tool hnps://oeaaa.faa .gov/oeaaalex1ernal/gisToolslgisAction.jsp

Federal Aviation « OE/AAA 8 Administration DoD Preliminary Screening Tool

DoD Preliminary Screening Tool- Desk Reference Guide V_2014.2.0 -- _, Disclaim er : ' . - \ 2-1i ) : The DoD Preliminary Screening Tool enables developers to obtain a preliminary -1 review of potential impacts to Long-Range and Weather Radar(s), Military Training Route(s) and Special Airspace(s) prior to official OE/AAA filing. This tool will produce a -f---i-L.-L t-L-L.L.-1-L-L I j. l.-+--'---i.--1...-..L.l- ..i. Jlt =. \ I map relating the structure to any of the DoD/DHS and NOAA resources listed above. t= -{ The use of this tool is 100 o/o optional and will provide a first level of feedback and -.. \ I .------single points of contact within the DoD/DHS and NOAA to discuss impacts/mitigation -:.,'-; _.. - ~ : M ;aHilnlic 1 efforts on the military training mission and NEXRAD Weather Radars. The use of ' ::3 ,.l... _ I I It'll :•~h ;')!:' 7 this tool does not in any way replace the official FAA processes/p rocedures. i--- ~ l I ..tt t .:t Utu t h ~ ~- , 1 ~r"c ;r'l: l o:, ~ ;· · \ I Ins.tructlons: 0'/ --1 Select a screening type for your initial evaluation. Currently the system supports (('/.'' \ I :r.'wf.. ;r ~//.-~ , _•-..,· o ....··· .1 .... .I pre-screening on: ,. \ I 4.6 ' '> ·Air Defense and Homeland Security radars{Long Range Radar) OLCOTT- ' -·~ (ul a) !f.~£-{ -·1 20S ·Weather Surveillance Radar- 1988 Doppler radars(NEXRAD) NEWFANE' (080) - ~· ·. ; .- :;t:lGk {...: :.~0) Jh._ ( _ ~ . ® 3 /!i - . .. , .,..,., 7 • I( -Military Operations ~ .. , - - -~~'=-" ..--\ '- , - ~· ~ A i Enter either a single point or a polygon and click submit to generate a long range Olcott _.-- : · :.--·' J vC ~~ ::--:-877 \ 1 ',Y, · I -. ' 567 .A, radar analysis map. 1 - .- ' -,. A ~ ; ~ 1. ' ~ - {2:t:j) '·' Military Operations Is only available for a single point. 1 At least three points are required for a polygon, with an optional fourth point. , · Q~~'702 Apple\on j 674 f1i!IJJJ;,.,, a~,,,-r The largest polygon allowed has a maximum pe rimeter of 100 m iles. ;;-bl.;r · (36811 9 ,).... \ (314) -~4{~/,~-. .. "ewfane __ .-.;-' · ~/r.:, 685 _- \ (31 5) . Ridgeway Screening Type: ~Operations] Geometry Type: [Single PO§] J 126.5 \ A I ...--( Point L<~tltude Longitude ' ·' 718 f HIBBARD~. (Pvt) \ 1 .A. (260) 11 Oeg Min Sec Oir Oeg Min Sec Oir 1 4 I 0 \ AIRCO 1.'- 67.4 .?~ ~7...., - ~ I . CAN.AL~~ ~~ ~ [EJ IZLJ ~~ ~ (295) r . ·R0YAt:i'oN"Yf9G5J \ ~~~ Horizontal Datum: INA083I BGB 62B • L 25 t zz"Y•s :.. MEDIJIA 995 \A I I I t A -'•l: --'-"".A~ j>-·-Middlepor-t MAP.a.:i 6 ' Your structure falls within the confines of M-MISTY 1, and may have an impact on military ' ~ ./r.....:>" ..-?.,..--- ~. • 1 · r 5) It_ . _ tk.f~~~ I 1-0CKPOR! - - • .!:r:.o.\ -+-.1-.c 70'; • ~ operations. For a more detailed review, please contact Jerry Lee at (315)334·6302. This ~ Nly questions Interpreting the map, please ema ~ Steve Saii'Clle with your queslion/s and phone POC will review the analysis and identify any additional areas of concern. Upon completion of this process, the POC will provide you a letter stating the results of the review. number at sleven.saii'[email protected]

This is a preliminary review of your proposal and does not preclude official FAA processes. Your search data Is not retained and the privacy of all your searches is assured.

I of2 6/2/20 15 I :40 PM DoD Preliminary Screening Tool Imps :I /ocaaa. faa.govI oeaaalextcrrta II gis Too Is/ gisActi on.jsp

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.bo Your structure falls within the confines of M·MISTY 1, and may have an impact on military ~ operations. For a more detailed review, please contact Jerry Lee at (315)334·6302. This POC will review the analysis and identify any additional areas of concern. Upon completion of this process, the POC will provide you a letter stating the results of the review.

This is a preliminary review of your proposal and does not preclude official FAA processes. Your search data is not retained and tile privacy of all your searches is assured.

I of2 6/2/2015 1:4 1 PM EXHIBIT 14 DoD Preliminary Screening Tool llllps://oeaaa.faa.gov/oeaaa/c:>.:tcrnallgisTools/gisAction.jsp

Federal Aviation << OE/ AAA 0 Administration

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OoD PreUrrinary Screening Tool- Desk Rererence Guide V_2014.2.0 Disclaimer: n• The DoD Preliminary Screening Tool enables developers to obtain a preliminary review ~1 I a • ! of potential impacts to Long-Range and Weather Radar(s), Military Training Route(s) •• l~nn 7ttun and Special Airspace(s) prior to official OE/AAA filing. This tool will produce a m ap relating the structure to any of the DoD/DHS and NOAA resources listed above. The use of this tool is 100 0/o optional and will provide a first level of feedback and single points of contact within the DoD/DHS and NOAA to discuss Impacts/mitigation efforts on the military training mission and NEXRAD weather Radars. The use of this tool does not in any w ay replace the official FAA processes/procedures.

Instructions: Select a sc.reening type for your initial evaluation. Currently the system supports pre-screening on: ·Air Defense and Homeland Secunty radars( Long Range Radar) -Weather Surveillance Radar-1988 Doppler radars(NEXRAD) ·Military Operations Enter either a single point or a polygon and click submit to generate a long range radar SOMERSEt. 7t),'IN CF 'VaLOW YAoES, : QWN CF analysis map. Military Operations Is only available for a single point. At least three points are required for a polygon, with an optional fourth point. The largest polygon allowed has a maximum perimeter of 100 miles.

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2of2 61212015 1:36PM EXHIBIT 15 Regarding Ben Hoen study on residential p r0 p e rty V a} U e S Source: https://www. wind-watch.org/documents/regarding­ ben-hoen-study-on-residentia l-prope11y-values/

Author: McCrum, Michael

I have received several inquiries regarding the "new" Ben Hoen study on residential property values. It appears to be just a regurgitated version of the December 2009 study. So it is the same "data" he relies upon, and nothing is new except some different spin.

I have developed a few observations and rebuttal comments for consideration by anyone interested in wind turbine value impacts, and my opinions as to the reliability of the linked paper and underlying data are as fo llows:

1-Hoen Excludes Relevant Data - Hoen claims to use about 7,500 sales, yet he excludes ce11ain sale data from nearby turbines, i.e. , developer buyout and resales at 36% & 80% reduction upon resale. Had just those two (2) sales been included, it would impact his "Nuisance" effect from about 5.3%-5.6% up closer to I 0%. See figure ES-1 , page xiii, in original Dec. 2009 repo11. Note that Figure ES-1 is conveniently excluded in this newer paper. Perhaps the negative fmding, even though claimed to be statistically insignificant, does not help the cause of getting turbine projects approved? Fw1her, see footnote 27 in the Dec. 2009 report on pages 13 & 14. Hoen claims that of the four (4) sales to developer that resold, two (2) were to a "related party". They were in fact sold to parties who were unrelated to the developer, and his exclusion basis is misleading, and is contrary to the website "assessor manual" description of invalid sa les. In short, it would seem he deviated from established rules to exclude that inconvenient data. The ES-1 data results also do not refl ect the fact that two (2) of the buyout properties apparently could NOT be resold. Finally, he excludes 34 sales that were coded by the counties as "valid" sales (i.e., arm's length, no foreclosure or estate sale, etc.) since they had resold, without any explanation if they resold due to turbine nuisances, or if they reflected discounting or appreciation between sales. He also excluded 5 sales that were more than six standard deviations from the mean. Pardon my bluntness, but if one is looking for an honest answer to turbine impacts, the excluded sales are exactly where the focus should begin, since they show considerable probability of having been impacted by the nearby turbines.

2- Hoen Opinions Are Misquoted in a Misleading Manner - He does NOT say there is no impact on value. He DOES opine that there is no "statistically significant impact on sale prices". First sub-point: When the inventory of houses available IS significantly impacted by a large scale disamenity via acting as a deterrent to buyers, then often homes will sit on the market for extensive periods of time, usually referred to by Realtors as Days On Market (DOM). Numerous examples of unsold inventory demonstrate that turbines have exactly this effect on the majority of would be buyers, when the turbine presence is "dominant" or spoils natural view amenities. Examples of homes that sold after protracted marketing range from 20% to 40% value reduction after 2-3 years on the market, and further, the developer resales in the preceding Point 1 demonstrate that in order to obtain a more "typical" DOM, the prices need to be discounted even steeper. .. as much as 80%. Those discounted prices ARE value by definition, since that is what a willing buyer paid to a willing seller, neither being under compulsion to consumate the transactions. Thus, Hoen uses the absence of sale evidence to claim "prices" are not impacted in a statistically significant manner. Second sub-point: In his 2006 thesis, which was a precursor to the USDOE funded study, Hoen made similar claims. But if one examines the map in the attached Fenner study (page 47 in report; pdf page 58 of73), it becomes apparent that there is an absolute dearth of sale activity within about 3/4 to I mile of the turbine cluster in the Fenner project. I call this the "doughnut hole" effect, since if you stare at that map long enough the hole in the data becomes obvious. Third sub-point: In his 2006 thesis, Hoen states that data for marketing time (DOM) was not available (repot1 page 23). Yet, he has now had 6 years to thoroughly research and analyze DOM data, which can be printed out by any local Realtor via MLS statistics. Despite at least 2 new publications since his thesis, he has yet to report any MLS marketing time statistics. Also see last few lines of page 31 and first several lines on page 32: Hoen acknowledges that the Fenner area home values have decreased, which is confirmed by a local Realtor, but by adjusting the Township variable, his application of regression number crunching is able to make that effect go away, from his statistical perspective (See "Rubber Rulers··. below). Also, see page 42, where Hoen admits ··second homes.. (i.e., Nantucket, Cape Vincent, Wolflsland, etc.) are not analyzed at all. This exclusion catTies forward through to the 2009 LBNL repot1 and the latest version of that report currently making the rounds.

3- Hoen's Methodology is Unreliable- First, see ··W'ind Farms. Residential Propct1y Values. and Rubber Rulers··. AI Wilson is a seasoned (now retired) and highly qualified real estate appraiser, and an expert on the use of regression analysis for mass appraisal purposes. He reviewed the 2009 Hoen/LBNL report and concluded that "the report should not be given any setious consideration for any policy purpose. The underlying analytical methods cannot be shown to be reliable or accurate". I will add that the most authoritative appraisal text on evaluating detrimental conditions lists the 3 basic methods of determining property value damages from a neighboring cause, in descending order of reliability, as follows: I) Case studies. The developer resales cited in Point 1 are a good example of case study type of data. 2) Paired Sales. See McCann Mendota Hills study- sales near (<2 miles) vs far (>2 miles) from turbines show a proximity effect averaging 25%. 3) Regression analysis. Problems with Hoen's use of this overall method and unproven model are stated clearly in the Rubber Rulers paper by AI Wilson. How statistics can be used to mislead is summarized clearly in the article by Dr. Alec Salt: "Why do pro wmd studie~ often use a I 0 km radiu~ ?" Finally, Hoen prepared the report for a branch of the Federal Government (USDOE), and the report is certainly a public document. Nevet1heless, Hoen has reportedly been steadfast in his refusal to provide the raw sale data to anyone, including the people he claims did a "peer review" of his report. I know this for a fact, because I was an invited "peer reviewer," and he refused to provide the data to me to facilitate the requested peer review. Keep in mind that the data was from various Counties throughout the USA, and that data is public record. However, Hoen claimed it was obtained subject to confidentiality agreements. This does not make sense, and is far from any kind of scientific peer review basis suppot1ing his opinions. Thus, the claim of "peer review" is also misleading, since scientific peer review includes the ability to review the author's data details to test the veracity of the conclusions. 4- Hoen (et al) Not Licensed as Appraiser- Ben Hoen has had absolutely no professional real estate experience, and he holds no license to practice as an appraiser. To my knowledge, he has never been qualified in any court as a "property value" or "appraisal" expert, and reliance on his opinions is potentially a negligent act, similar to taking legal advice from a non-lawyer or medical advice from a student. With the public at considerable risk of property value and equity losses, a generously compensated pro-wind advocate is the least reliable source for independent, professional advice or "expert" opinion publications upon which to base far reaching land use approval or policy decisions. Page x of the 2009 report states: " It should be emphasized that the hedonic model is not typically designed to appraise properties ... ". However, The Hoen report is often used by developers to assert a claim that there is no impact on value from wind turbines which is, in fact, a value opinion.

5- Hoen Recommendation for PVG's is Contrary to Claim of No Impact on Value- See Hoen 's May 20 I 0 wcbinar slide 32, suggesting that PVGs should be used to mitigate value loss risks. Also see written & recorded comments from telephone in ten ic\\ of Ben Hoen by Clif Schneider, where Hoen admits developers misquote his opinions and report. Finally, a A WEA 2011 policy report states they are working on developing a PVG solution for wind project developers. One does not need to be an appraiser to understand the contradiction of recommending value guarantees if there are "zero" impacts on residential values.

6-Hoen Admits Little Knowledge of Impacts Within 1/2 Mile of Turbines - Hoen gave ~ presentation at the March 7, 2012, A WEA Midwest Summit. See slide 14 - suggests more research needed. Note: Per slide 4, he states his 2009 study indicates "Lack of consistent evidence of post construction effects based on distance from or view of turbines in all models". He does not opine "NO impact".

I trust this critique will assist the reader in better understanding the risks inherent in relying upon the Hoen reports for any land use or policy decisions.

Respectfully submitted,

MichaelS. McCann, CRA McCann Appraisal, LLC EXHIBIT 16 Town of Yates, New York 8 S. Main Street Lyndonville, NY 14098

For Immediate Release Contact: John Belson December 28, 201 5

Town of Yates Town Board Releases Results of the Survey on the Lighthouse Wind LLC Project

Yates, NY, December 28, 2015. On December 28,2015, the Town of Yates Town Board released results of a survey taken on the Lighthouse Wind LLC Project showing that more than 65% of survey respondents oppose the project. Thirty percent of respondents are in favor, while approximately 4% have no opinion. The survey also revealed the respondents' concerns over potential adverse environmental impacts from the project, including visual impacts. The Town Board commissioned the survey to obtain the community's input, as part of its evaluation of local wind development. The Town Board firmly believes that Yates residents shou ld decide the zoning, planning, and development goals of the community. Since the Lighthouse Wind LLC Project has the potential to drastically change the character of the community for more than a generation, the community's voice on this dramatic change must be heard.

The Yates survey was carefully constructed with assistance from Lighthouse Wind and Save Ontario Shores. a local citizen's group, to ensure there was no bias in the process. The Survey was mailed to all 2608 registered voters and non-registered voters who own taxable property in the Town, and achieved a very high return of a public survey of 46.57%. Unlike other local surveys, the process was designed to gauge overall opinions as well as address specific concerns in order to guide the New York State Board on Electric Generation Siting and the Env ironment (the "Siting Board") as it reviews the Lighthouse Wind LLC Project Application. Based on the survey, the Siting Board should especially consider within the review process, for example, possible effects on the operations at the Niagara Falls Air Reserve Station, impacts on wildlife, and the potential for Community Energy projects under recent Public Service Commission initiatives, whereby the local community could benefit from reduced energy costs, thereby matching project impacts with benefits.

Pursuant to Atticle 10 ofthe New York Public Service Law, the Siting Board has ultimate approval authority over the Lighthouse Wind LLC Project. Lighthouse Wind LLC has submitted an application to the Siting Board for a Certificate of Environmental Compatibility and Public Need to Construct the 201 MW Wind Energy Facility in the Towns ofYates and Somerset. Lighthouse Wind LLC has recently filed a Preliminary Scoping Statement (''Pss··) on the Project, and public comment on the PSS is being accepted through January 12, 2016. The Town Board is submitting comments that reflect the recent survey and other concerns. The Siting Board must take the community's vision for its future into account. One of the Guiding Principles of the 2015 NY State Energy Plan is Community Engagement. Specifically in regard to the State's ground-breaking "Reforming the Energy Vision'" (REV) process, the State Plan commands that "communities and their trusted local leaders and stakeholders will serve as important communication and delivery channels to community members." The Town of Yates Town Board has taken on that leadership mantle and produced a fair inquiry into the position of the community for use by the Siting Board in its review. Town of Yates Wind Turbine Survey Tabulated on 12/23/15 ' 2608 Mailed; 59 Returned as Not Deliverable 2549 Delivered; 1187 Repondents (46.57°/o)

1) Many topics are currently being studied regarding Lighthouse Wind. These proposed wind turbines would change the appearance of the landscape within the town. Do you have a concern about this?

Yes No No Opinion 793 365 27 66.92°/o 30.80°/o 2.28°/o

2) As currently proposed, the electricity from this project would be delivered into the New York State electrical grid. Should the Town of Yates attempt to negotiate a separate agreement with electric suppliers for more favorable rates?

Yes No No Opinion 840 133 154 74.53°/o 11.80°/o 13.66°/o

3) If Apex eventually seeks a PILOT (Payment-in-lieu-of-taxes) from COIDA (County of Orleans Industrial Agency), should this be granted?

Yes No No Opinion 307 654 183 26.84°/o 57.17°/o 16.00°/o

4) In 2015, the Town of Yates tax levy was $852,205. What percentage of decrease in the Town of Yates tax levy would you like to see come from this project? Circle one answer.

0°/o 25o/o 50°/o 75°/o 100°/o No Opinion 94 164 239 90 369 165 8.39°/o 14.63°/o 21.32°/o 8.03°/o 32.92°/o 14.72°/o 5) What effect do you feel wind turbines would have on property values in the Town of Yates?

Increase Decrease No Change 81 807 269 7.00°/o 69.75°/o 23.25o/o

6) Taking into consideration requirements of the Article 10 review process, do you feel the study of health issues is important?

Yes No No Opinion 909 208 53 77.69°/o 17.78°/o 4.53°/o

7) Taking into consideration requirements of the Article 10 review process, do you feel the study of wildlife issues is important?

Yes No No Opinion 891 247 34 76.02°/o 21.08°/o 2.90°/o

8) Taking into consideration requirements of the Article 10 review process, do you feel the study of possible effects on the operations at the Niagara Falls Air Reserve Station is important?

Yes No No Opinion 822 260 88 70.26°/o 22.22°/o 7.52°/o

9) Do you feel New York State's "Reforming the Energy Vision" (REV) is an effective way to reduce greenhouse gas emissions?

Yes No No Opinion 350 516 280 30.54°/o 45.03°/o 24.43°/o

10) Based on your knowledge of Lighthouse Wind, are you in favor of or opposed to this project at this time?

Favor Oppose No Opinion 353 770 51 30.07°/o 65.59°/o 4.34°/o EXHIBIT 17 TOWN CLERK'S CERTIFICATION

STATE OF NEW YORK :SS: COUNTY OF NIAGARA

I, Tracy L. Canner, Town Clerk of the Town of Somerset, DO HEREBY CERTIFY:

THAT the attached are the results of the wind turbine survey conducted by the Town Board of the Town of Somerset and recorded on June 17,2015.

fN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Town of Somerset, New York this 11 111 day of January II, 2016.

Town Clerk Town of Somerset

s E A L Town of Somerset Wind Energy Survey Results

1. What are the views of your household if a project involved the siting of 60-70 large wind turbines in the Town of Somerset? a. Strongly Support 112 (17%) b. Moderately Support 76 (12%) c. Strongly Oppose 393 {61%) d. Moderately Oppose 41 (6%) e. No Opinion 17 (3%) f. No Answer 5 (1%) 2. What are the views of your household if a project involved the siting of 30-40 large wind turbines in the Town of Somerset? a. Strongly Support 129 (20%) b. Moderately Support 76 (12%) c. Strongly Oppose 382 (59%) d. Moderately Oppose 32 (5%) e. No Opinion 19 (3%) f. No Answer 6 (1%) 3. If large wind turbines were set back far and away from residences and lot lines of non- participating landowners, what would be your household's view of a project? a. Strongly Support 151 {23%) b. Moderately Support 74 (12%) c. Strongly Oppose 353 (55%) d. Moderately Oppose 40 (6%) e. No Opinion 20 (3%) f. No Answer 6 (1%) 4. If large wind turbines were less than 495 feet high as opposed to 600 feet high, what would be your household's view of a project? a. Strongly Support 110 (17%) b. Moderately Support 75 (12%) c. Strongly Oppose 364 {56%) d. Moderately Oppose 40 (6%) e. No Opinion 43 (7%) f. No Answer 12 (2%) 5. If the siting of la rge wind turbines in the Town of Somerset resulted in a significant property tax decrease for your household, what would be the views of your household? a. Strongly Support 174 {27%) b. Moderately Support 79 (12%) c. Strongly Oppose 312 (49%) d. Moderately Oppose 47 (7%) e. No Opinion 17 (3%) f . No Answer 15{2%) 6. If the siting of large wind turbines in the Town of Somerset resulted in significant electricity cost savings for your household, what would be the views of your household? a. Strongly Support 177 127%) b. Moderately Support 82 (13%) c. Strongly Oppose 307 148%) d. Moderately Oppose 45 (7%) e. No Opinion 20 (3%) f. No Answer 13 (2%) 7. What are the views of your household regarding the siting of other renewable energy technology, such as solar farms, in the Town of Somerset? a. Strongly Support 256 (40%) b. Moderately Support 139 122%) c. Strongly Oppose 116 (18%) d. Moderately Oppose 29 (4%) e. No Opinion 79 (12%) f. No Answer 25 (4%) EXHIBIT 18 Hon. Kathleen H. Burgess, Secretary January 7, 2016

Public Service Commission Three Empire State Plaza, Albany, New York 12223-1350

Regarding: "CASE 14-F-0485- Application of Lighthouse Wind".

Honorable Secretary Burgess and the Article 10 Siting Board,

The Lighthouse Wind has submitted a premature PSS. The public is left to speculate all worse case scenarios and, in doing so, WASTE intervenor funds on what should be required. Apex should model Best Practices. If the expense of the project is undetermined (no turbines), than how can the Intervenor Funds be determined??

1. It appears from their own statements that Apex does NOT currently have total land control (lease) of the project area.

2. The Wind data is not complete so a viable project is yet to be determined; a similar project near Attica did not have the wind resource and left.

3. Wind projects in general are too dependent on subsidies, financial FLIPS and now, Yieldcos. Economic stability and the viability after subsidies and PILOT's are terminated, should be part and parcel of the PSS economic review. Apex states it will receive a PILOT without having gone through the process. Clawbacks for noncompliance should be instituted wherever possible. Economic impact upon the area should be part of the PSS.

The PSS is lacking the funds for the determination of road conditions and damage from overloads continuously over the life of the project. This should NOT be reflected in a non enforceable HOST agreement.

The PSS is also missing the funds for the special training and equipment for EMT and Hazmat, along with municipal notification of cause and remediation. As well as, alternate road usage for EMT in an emergency.

The PSS is missing impacts on wells/water sources and is missing a protocol to test before and after blasting.

The PSS is missing Decommissioning.

The PSS is missing Alternatives.

The PSS states they will comply with NESC as to grounding and then later states the turbines being struck by lightning will travel and dissipate to the ground. How often will they test for NESC (case of NYC lamp pole electrifying a person)? What about NEPA 780? Where is the explanation of more detail for lightning strikes and public health and safety.

4. The design/choice of utility wind turbines and layout are yet to be determined; either a 2.8 MW or 3.3 MW of undetermined manufacturer may be used; not definitive.

Most 2.8 or 3.3 MW turbines are certified for offshore, not "onshore"/land based use. If they are utilized on land, they are usually prototypes with conditional certification; with increased potential to jeopardize public health and safety. Since Apex cannot identify the turbines, the worst case or maximum safe setbacks for 3.3 MW prototypes should be used so as not to waste intervenor funds. Setbacks should be for prototypes so all possible negative parameters will not harm the public and BEST PRACTICE should be applied; therefore alleviating the waste of Intervenor Funds on the unknown.

List of Certifications - DNV GL https.//www.dnvgl.com/energy/ ... certification/certifications.html

5. All of the 3 MW have a base noise level of around 104 to 107 dBA. The World Health Association parameters for night time noise ( 35 dB) should be utilized since these turbines are globally and/or internationally conditionally certified. Chosen sites to measure baseline noise should have input from municipalities and independent professional acoustical engineers chosen by the municipalities and paid for from an escrow by Apex; and again, not waste intervenor funds on BEST PRACTICES.

Since Apex cannot identify the turbines, the worst case scenario of noisy turbines and worst case scenario of low frequency should be used so as not to waste intervenor funds and assure compliance with local, state, federal and international guidelines(again, WHO guidelines are missing from PSS). Setbacks should be determined such that all possible negative parameters will not harm the public. Apex's lack of clarity should not negatively affect the public. This can be an integral part of Independent PROJECT CERTIFICATION.

Complaints from NOISE or other public safety hazards should not be limited to the involved municipality especially when involving two or three municipalities in the case of Lighthouse Wind. A coordinated review, notification and mechanism should be pre set such that the expense does not fall upon the individual nor the municipality; the guarantee of compliance for noise parameters falls under the PROJECT CERTIFICATION.

Proof of insurance and available funds should be regularly reviewed and required; especially with the potential to switch or share (liens and FLIPS) ownership and liability.

Liability coverage should be continuously required ...... from construction through operation through decommissioning. Wind Turbine Type Certification - Energy - DNV GL https://www.dnvgl.com/services/wind-turbine-type­ certification-4034

6. In a municipality, NYS DOS does not give the Code Enforcement Officer the ability to approve or disapprove an industrial wind farm project. Wind turbines do NOT fall under the NYS Building Code. Yet the municipality is to protect the health and safety of the public. Apex should provide funds such that the municipality can hire a third party profession to review the said turbine, and project CERTIFICATION with included certification for public health and safety and noise and whatever else is deemed necessary by said municipality. A protocol should be pre agreed upon and if the project or a specific turbine falls out of certification, it leads to a temporary or permanent loss of Article 10 CERTIFICATION also.

If the Siting Board determines this is burdensome than legal clarification of the determination of who is responsible for public health and safety must be sought. Public health and safety is of utmost importance as determined in tracking where NYS interceded. Is the PSC or Siting Board acting in this capacity? Has this been clearly explained to the municipality and public. The definitions of the TYPES of Certification and responsibilities must be defined before proceeding. Turbine, TYPE, Project and Article 10 Certification are interchangeably used in this PSS and by definition these certifications are very very different.

7. As to Lighthouse Wind meeting the NYS RPS and REV- The RPS was to be phased out in 2015. The REV implementation is not complete and Lighthouse Wind is not part of any current approved trials. Governor Cuomo has just directed the NY PSC to include nuclear as part of Upstate's Renewable Resources. http://www.syracuse.com/news/index.ssf/2015/11/cuomos renewable energy targets include boost for up state nuclear plants.html

There are no details in the PSS as to how Lighthouse Wind will comply with both the RPS and REV. Where will the REC's be sold? If under REV, then why haven't the municipalities been involved with the micro grid configuration and what direct benefit will the municipalities be receiving under the constructs of REV? Will the project receive funds from the Green Bank? This would also impact the liability thereof.

8. The NYISO Interconnection Queue of 2014 showed Lighthouse Wind connecting to NM-NG. In the 2015 Queue it was changed to NYSEG. No explanation is given in the PSS.

9. Congestion and bottling of energy in Western NY is causing our rates to increase especially from Wind Farms. Please explain the impact that Lighthouse Wind will have upon our rates, the destination of the energy and backup as well as the reliability of our energy ..

10. Since Western NY is the location for so many renewables, they is potential under REV for PPA's where ratepayers will have to pay for energy that will not be delivered and as well as energy that is. This is the Bonneville Effect- where hydro was pitted against wind and the ratepayer paid for BOTH non delivered and delivered energy. Does this Bonneville Effect have a greater potential to transpire because of Lighthouse Wind's location?

In summary, the Apex's PSS is too undetermined and vague. If the Siting Board is to continue, than the highest level of protection of Health and Safety must be part of the BEST PRACTICE for Wind Farms and the highest level of CERTIFICATION for Type, Turbine and Project Certification, including all public health and safety parameters, should be required. Intervenor Funds should be dispersed after a more concrete PSS is submitted unless the Siting Board is to take on the fiduciary responsibility of the municipalities for Public Health and Safety in their Article 10 CERTIFICATION. It appears that the DOH representative is in a precarious situation as it currently stands.

I gave input into Article 10. It is my opinion that this PSS is a misuse of the intent of Article 10; too generic and not transparent. To protect the public, the health and safety, parameters will have to be significantly more stringent to deal with the UNKNOWN ..... Striving for a higher confidence level when dealing with health and safety especially since NYS has continued to allow changes in project after the public process..... Remember Cohocton and Orangeville.

Respectfully, Alice Sokolow

cc. Mr. Dan Fitzgerald, Sr. Dev. Manager Apex Clean Energy Court Square Building 310 4th Street NE, Suite 200 Charlottesville, VA 22902 EXHIBIT 19 Richard Kohlman 1731 Atb·idge Road Churchville, NY 14428

january 9, 2016

Regarding CASE 14-F-0485 - Application of Lighthouse Wind Honorable Kathleen H. Burgess, Secretary Public Service Commission Three Empire State Plaza Albany, New York 12223-1350

Dear Honorable Secretary Burgess,

We own a lake front 3 season cottage at 10511 Fanta Lane in Lyndonville, NY. The proposed Lighthouse Wind Farm project is just across the road. My wife, daughter, and I are a hardworking famil y and although we already feel a personal financial impact from this proposed wind farm we do not have adequate time to analyze the reports and documents presented by the APEX Corporation. But, I am taking some time this weekend to point out some of our major concerns and weaknesses in the Preliminary Scoping Statement. I apologize if my format is not exactly proper.

We have owned this lake property for 8 years and use is it for fantily weekends, kid's campouts, and also as a financial investment to be sold as we approach retirement.

My main areas of concern with the scoping statement and the project in general are four fold:

1. Sections 2.4 and 2.9 Noise and Vibration, Visual Impact.- The proposed windfarm is Too Big and Too Close. My property is 200' North of West Lake Road and the windfarm is proposed south of West Lake Road. The windmills are 570' high with large rotating blades. This is 15' taller than the Washington Monument. 70 are proposed. APEX proposes Flicker studies, and that noise and visual impacts will be minimized. The reality is you cannot hide the impact of these towers on my property, my family, and my life. APEX needs to realistically define these impacts. A third party engineering firm should assess the results for accuracy as APEX is too interested in the advancement of this project. 2. Section 2.12 Socioeconomic Effects.- Although APEX presents studies that say property values are not affected this is not true. Anyone can produce a study to support one side or the other of an argument. Here is my personal experience- I listed our cottage 'for sale' last year and was unable to sell even after dropping the price. My realtor is suggesting that I must lower the price further this year because of the threat of the windfarm. Our 'for sale' sign is posted amongst all of the anti-wind farm signs as you drive down West Lake Road. So I am dropping the price further and will lose money on the sale. So there is real financial impact already just from the threat of the windmills. The proposed wind farm directly attacks the purpose for me owning this cottage, i.e. a natural weekend haven and a financial instrument. Further, the project does not compensate me in any way for my losses. APEX does not address this other than to say there is no loss. 3. Section 2.12.2.2 Operation.-The seeping statement discusses economic benefits to the community, leasing landowners being a major beneficiary. But those people who live across the street and have to live with the negative impacts every day are not discussed or compensated in any way for their loss. There are general payments to taxing jurisdictions but no indication that those of us who are most affected are compensated in any way. 4. Section 2.15 Evaluation of Alternatives. -l11e section discusses" relatively limited residential development" with no discussion of how many residents are impacted, quantification of the impacts, and compensation for those impacts. Also, what is an acceptable amount of residential development to disrupt and impact? 5. Section 2.15.4 Alternative Technologies. -As a NYS Professional Engineer with some experience in energy facilities and alternative evaluations there is essentially no true evaluation of project alternatives proposed here. APEX states such evaluations "are not the area of expertise of the Applicant". A project of this magnitude, local impact, and financial commitment from the government should require a true 3rd party engineering/ economic/ feasibility analysis of options, including impact assessment on the environment and community. APEX has one goal and one specialty and is not qualified to perform a self-analysis of technology options. • Biomass -the area has a very large cow population to support such a project • Solar is getting cheaper • A cogeneration natural gas generating plant combined with Biomass should be evaluated. • Potential businesses that could utilize waste heat from a cogeneration plant should be evaluated. Bringing them in would create more jobs and improve the overall cogeneration efficiency of say a biomass/ generator facility. • Etc.

I have many more concerns with the project submission but not the time to continue here. I know that the world needs to change energy streams and that change is happening. But this APEX Corporation project is not the right choice. New technologies are lowering the cost of solar, making natural gas cleaner and more economical, etc. There are better places to put the ta x payer money with Jess impact and more benefit. Let's find them!

Warm regards,

Richard Kohlman, PE

CC: Mr. Dan Fitzgerald - [email protected]

2 EXHIBIT 20 Mr. Dan Fitzgerald, Sr. Dev. Manager, January 11 , 2016 Court Square Building, 310 4th Street NE, Suite 200, Charlottesville, VA 22902 [email protected] Hon. Kathleen H. Burgess Secretary Public Service Commission Three Empire State Plaza Albany, New York 12223-1350 [email protected]

Case# 14-F-0485.

Good Morning; I am a resident and property owner in the Town of Yates. I am writing you regarding the PSS filed by Lighthouse Wind I Apex Clean Energy in Case# 14-F-0485. This letter in in reference to Article 10 Section 1000.5, which requires that the PSS "include a list and description of all local laws and regulations issued thereunder, applicable to the construction, operation, or maintenance of the proposed facility and a statement either providing a preliminary assessment of an ability to comply or indicating specific provisions that the applicant will be requesting the Board to elect not to apply, in whole or in part, and a preliminary explanation as to why the Board should elect not to apply the specific provisions as unreasonably burdensome in view of the existing technology or the need of or cost to ratepayers whether located inside or outside of such municipality." There are many pieces of local law that apply to the Lighthouse Wind project. I am much more familiar with the laws in the Town of Yates, however I am sure that similar laws are in effect in Somerset. One law is Yates Local Law #1, specific to wind facility siting. It lays out in no uncertain terms what the town application process is, and clearly set parameters for construction, size, setbacks, noise, operation, abatement, and the creation of an overlay district. etc. The PSS speaks of these in Section 5.3.2. As proposed, the Lighthouse Wind project is in violation of turbine height limit of 420 feet, by as much as 200 feet. It is also in violation of setback mintmums along with a few other sections listed in 5.3.2. No overlay district(s) have been identified or created in this matter. As in other matters in the PSS, merely stating that Lighthouse Wind is not in compliance with the local laws and will request that the Board make a determination during the Certificate Application phase again removes the ability of the public to comment now. The second part of that paragraph "and a preliminary explanation as to why the Board should elect not to apply the specific provisions as unreasonably burdensome in view of the existing technology or the need of or cost to ratepayers whether located inside or outside of such municipality." Even if the request is pushed back to the next phase, the filed PSS does not at all give any explanation for such a request for an unreasonably burdensome determination. This is yet another shortcoming of this PSS. On the subject of turbine height, size, noise levels and setbacks, etc. There appears to be a concern that laws enacted by the community might be "unreasonably burdensome" to a wind facility developer. These laws were enacted by the leadership of the community for a reason. So that the installation of "620 foot industrial wind turbines", or any other industry, wouldn't be unreasonably burdensome to the town and community. Orleans & Niagara County IDA's- Both counties require application and approval for industrial development in their respective counties. Lighthouse Wind, a private corporation from Virginia, by way of a land lease contract with private citizens, without the knowledge, approval or consent of the local and county governments, is allowed to dictate where and to what scale a municipality's industrial zones will be. This sort of overreach is not permitted in any other industrial development type except for those covered by Article 10. Like local law #1 stated earlier, the PSS makes mention of IDA interaction, however fails to explain the reason Lighthouse Wind looks for exemption from existing local law by the Siting Board. I feel this PSS is falls short in satisfying the requirements set forth in 1000.5 of Article 10.

Respectfully submitted, Glenn Maid 10367 Chaffee Lane Lyndonville, NY 14098 EXHIBIT 21 January 11, 2016

Regarding: CASE 14-F-0485 -Application of lighthouse Wind

Mr. Dan Fitzgerald, Sr. Dev. Manager Apex Clean Energy Court Square Building 310 4th Street NE, Suite 200 Charlottesville, VA 22902

Mr. Fitzgerald:

In the matter of Lighthouse Wind LLC's Preliminary Scoping Statement (PSS), I find the discussion regarding Cultural Resources sites to be vague, lacking in specific references to historic sites and without a clear description of the process that will be used to preserve buildings and sites in the area. Without specificity in the plan regarding location of the turbines, it is impossible to comment with any accuracy as to the physical damage that may be caused to historic buildings and properties by the construction of up to 70 industrial wind turbines. It is difficult to follow the criteria to be used beyond the identification of cultural resources to determine historical significance and archeological significance of properties within the study area of this project and to understand how you will carry out your intention evaluate and "to mitigate potential impacts to historic resources." I find it especially discouraging that according to the CRIS, frequently cited in your preliminary plan, a listed building that did not appear among those mentioned in the section under Cultural Resources 2.5.1 is the very lighthouse for which you have named your project.

In Section 2.5.2.2.2 Historic Sites you state that visual and noise impacts will be evaluated- it is unclear what is intended by the term evaluation as you are using it. The PSS should state the impact to the area's historic features as an honest estimation of loss of a given building's usefulness as a dwelling, as a site of interest to visitors or for use as a example of the history of the area, such as the fragile cobblestone houses that are scattered throughout the area and are representative of the area's distinct historical building style. These values will be challenged in the presence of the turbines. The view will be obstructed for at least 10 miles, as the only structure nearby in height to the proposed turbines is the Somerset coal-fired power plant and it is viewable for at least that distance. It is difficult to image how vegetative screening or topographic screening will be of much assistance with these turbines. I encourage you to extrapolate on that point. Although you cite Figure 2 in the Cultural Resources section, Figure 5 gives a much better sense of the cultural attractions in the area. It is not only buildings shown but the parks and waterways that have sustained the cultural interest in this area. That interest will be damaged beyond hope should this project come to pass. This is an agricultural and recreational area. You are proposing an industrial installation. What could be more damaging?

Regarding the research conducted so far, it appears to be a general summary of what is offered on the CRIS, lacking depth. There are a number of historic buildings and archeological sites not listed in the PSS. A full review of these structures and related cultural resources will demonstrate that even in rural areas such as Somerset and Yates, there is much that is threatened by the proposed wind turbine project.

Sincerely,

Georgette Stockman Property owner, Town of Yates [email protected]

cc: Hon. Kathleen H. Burgess, Secretary Public Service Commiss ion Three Empire State Plaza, Albany, New York 12223-1350 EXHIBIT 22 ...... To: Honorable Kathleen H. Burgess Secretary of the Commission New York State Public Service Commission Empire State Plaza Agency Building 3 1""1'"'! ~ Albany, NY 12223 ,.,.,X <:::> rn 0"' n L. ;-i . > """ Dan Fitzgerald ., :z -,::::; ,-- '::rr! ...,.., ~r lighthouse Wind, llC N -!"T (/) c/o Apex Clean Energy, Inc. I :Do ~< 310 4th Street NE, Suite 200 > ::k.; V)f"Tl ,-- fT,O Charlottesville, VA 22902 OJ i5 ;:..; ::t> w < :z: co :-) From: Elizabeth Wolanyk lf" --: r, 7792 Haight Road Barker, NY 14012

Re: Public Seeping Statement filed by Apex Clean Energy, Inc. for lighthouse Wind, LlC Case NO. 14-F0445

Enclosed are my observations and recommendations for changes to the Public Seeping Statement filed by Apex Clean Energy, Inc. for lighthouse Wind, LLC, Case NO. 14-F0445.

Overall, I do not believe that Apex provided enough information specific to the actual proposed project for the siting board to property evaluate the planned industrial wind turbine project. Additionally, in justifying the need for the project the proposal did not address that the Niagara Power Project is not running at capacity nor is the Somerset Operating Station. Both of these electric generating facilities provide more than ample electricity. Therefore the need is not apparent.

Also, delivery of this proposed electricity is hampered by a lack of sufficient power carrying capacity across the state to New York City where this power would be used. The purpose of this project is to capture the tax benefits provided by the state and federal governments and not to produce electricity.

------•

Commentary by Elizabeth Wofanyk for observations on the shortcomlnss on the Preliminary Scopine Statement (PSS) by Apex for Lishthouse Wind case No. 14-F-0485

Overall, this preliminary scoping statement (PSS) is long on facts that can easily be found from various state, local, and federal government agencies and very short on facts specific to the actual project proposed by Apex that is known today as Light house Wind. This proposal very often provides conflicting information In various sections of the document. Several of these have been pointed out in my commentary but due to the short amount of time available to read and react to the PSS I have been unable to document every conflict.

In this commentary, to facilitate reading the commentary, I will identify the page number of the PSS, any section number identified, the statement from the PSS, then my personal observation of the statement's shortcoming, statement accuracy, whether it is misleading, and opinion of the Apex plan to research or create a solution to mitigate the impact.

Pap ill Apex PSS Statement: The turbines will be visible from many locations within the surrounding area, but will also be fully or partially screened from viewers in many locations.

Observation and Commentary on PSS Due to the very flat nature of the landscape of the Towns of Somerset and Yates, NY and the proposed height of these industrial wind turbines, it is very unlikely that any of these industrial wind turbines will be fully or partially screened from any viewers. The 600 foot smokestack of the Somerset Generating Station (formerly Kintigh Generating Station) can be seen from Sheraton Road near where it intersects Transit Road in the town of Williamsville more than 30 miles away. These turbines will certainly be seen from that point as well and travelling to and from the area for as many miles. There can be not disguising the eyesore that they will be on a rural landscape. Not to mention that they will be able to be seen from the water by anyone using a recreational vehicle, fishing, swimming or boating for an even further distance.

If these industrial wind turbine monstrosities are to be built every resident in this proposed area should be compensated for having them destroy the scenic nature of this area not to mention the impact on health and well-being.

Pase3 Apex PSS Statement: Due to the nature of wind powered generating facilities, certain exhibits do not apply. It is assumed that the following exhibits do not apply: • Exhibit 7: Natural Gas Power Facilities • Exhibit 16: Pollution Control Facilities • Exhibit 17: Air Emissions • Exhibit 30: Nuclear Facilities • Exhibit 36: Gas Interconnection • Exhibit 37: Back-up Fuel • Exhibit 38: Water Interconnection

------• Exhibit 39: Wastewater Interconnection • Exhibit 40: Telecommunications Interconnection • Exhibit 41: Applications to Modify or Build Adjacent

Observation and Commentary on PSS The Apex statement seems to indicate that these industrial wind turbines are completely disconnected from the environment In which they will exist. While not all of these are applicable some of them certainly are and need to be addressed.

Exhibit 16: Pollution Control Facilities and Exhibit 17: Air Emissions

While the nacelle is a sealed mechanism there are photos and videotapes of the nacelle leaking lubricating fluids down the tower which will enter the surface and ground waters as well as vaporize and cause air pollution. There is also footage of the nacelle catching fire and the resulting lubricating fluids creating plumes of black smoke-an additional air and water pollution issue, not to mention a fire hazard which the towns will need to deal with. A plan to address this is needed. Exhibit 38: Water Interconnection and Exhibit 39: Wastewater Interconnection

While the industrial wind turbines will not use water to cool or operate, water will be impacted-the ground and surface waters. The massive foundations of concrete and rebar placed 30-50 feet into the ground for each turbine will alter the pH of water that transverses their surface or subsurface. The trenches dug for the underground power lines will after the flow of ground water and it will follow the trenches, increasing the amount of ground water that will intersect the industrial wind turbine foundations and again raise the pH of the ground water that will ultimately enter streams and lake Ontario. Nowhere in this proposal is this addressed.

Exhibit 40: Telecommunications Interconnection

fn order to initiate startup of the turbines from an off position when winds are too low or when shut down when winds are too fast, control their facing into the direction of wind as it changes directions, and stop the turbines to prevent their overspinning when winds are too high, there needs to be communication with each industrial wind turbine. Also, communication with the electrical grid when the turbines are operational and electricity is flowing to the grid or when they shut down and electricity ceases needs to be communicated to the grid to maintain a constant electricity supply so that power surges or brown outs do not occur. On page 16 of the PSS these statements were made: "In the event of turbine or facility outages, the supervisory control and data acquisition (SCAD A) system will send alarm messages to on-call technicians to notify them of the outage." And ...

H A communication line connects each turbine to the operations center, which closely monitors and, as required, controls the operation of each turbine."

That verifies that communications from each turbine to a central location must be included in this project. These communications must be wireless or wired to connect to each of the 60-70 turbines.

In addition, impact on local telecommunications will be impacted and should be addressed both for cell phone access, wireless Internet access, television reception, WIFI in businesses and homes, and radio communications for emergency vehicles needs to be addressed.

------Exhibit 41: Applications to Modify or Build Adjacent

In areas where these industrial wind turbines have been built, the first section of industrial wind turbines placed are often followed by additional industrial wind turbines being built to take advantage of the infrastructure that is put in place. If this company will not build adjacent to this proposed project it needs to be stated in this proposal or the following application.

Pace• Apex PSS Statement: Given turbine market conditions and rapidly evolving technologies, the Applicant has not yet selected a turbine manufacturer for the Project.

Observation and Commentary on PSS How can decisions be made on this project if the number, size and placement of turbines are not identified? How can the impact of their operational sound be made if their size and height are not known? As discussed in the community outreach meetings, these industrial wind turbines are proposed to be the largest ever placed on land. It will be difficult enough to assess their impact due to no comparison being available. The less information available makes this process very difficult. No information makes it impossible.

Page6 Apex PSS Statement: In addition, operation of the Project will generate full-time jobs, such as wind turbine technicians and a site manager. During operations, it is anticipated that up to 131ocal, full time positions will be required throughout the operation of the Project. The Project will also result in increased revenues to county and local municipality tax bases, payments to the local hospitality industry, and purchase of local supplies and goods.

Observation and Commentary on PSS · Apex does not address the loss of thousands of jobs that may occur if the building industrial wind turbines interferes with the Niagara Air Base continued operation or prevents the expansion of its mission because of the interference of 70-600 foot industrial wind turbines in their flight path. 13 local full time jobs will not make up for that loss to the county.

The PSS also indicates that 300 full-time construction jobs will be created benefitting the local communities, employ residents and tax base. However later in the PSS Apex disagrees with its own statement: "Section 2.12.2.1 During construction, it is anticipated that at least 300 full time equivalent construction jobs will generate significant local employment for construction and related works. However, these construction jobs are not likely to result in a significant increase to permanent resident populations of the towns or counties. A substantial number of workers will be employed during construction, but workers that may be hired from outside the local area llkety would not pennanentty relocate to the area given the temporary nature of the work."

" ....If not available from local sources, such specialized skill workers may need to be sourced from outside the local area or the state."

------Additionally, references to the local hospitality industry are laughable. The Town of Somerset has no hotels or motels only a couple of small restaurants. As far as purchasing local supplies and goods while construction is underway, the same holds true. Somerset and Barker have no lumber or hardware stores, no gravel pits or cement plants. No industrial wind turbine components are created or built here. As far as the benefit to the tax base, a PILOT that represents 25 -30% of the actual taxes that could be levied will benefit the county IDA- not the county and the school districts must stay under a New York State imposed 2% tax cap increase so no benefit will accrue there. While the town taxes may decline, they represent a small percent of the property taxes (only 5-15%.) In other New York State counties, school boards are passing resolutions to reject PILOT agreements for this and other reasons. In counties with industrial wind turbines such as Wyoming County, the county taxes have risen year after year following industrial wind turbine installation resulting an overall increase in property taxes. This proposed benefit to the community should be stricken from the PSS. It is misleading.

Instead, Apex should commit to paying taxes on the structures instead of seeking a PILOT. This would actually benefit the county, school and local government.

Page 7 Apex PSS Statement: Based on the mandates of the PIP, which incorporates the requirements of Article 10, the Applicant has conducted the requisite consultations with local, state, and federal agencies and Project stakeholders. Public outreach activities have been documented by the Applicant, and bi-monthly reports have been updated and submitted to the Siting Board since January of 2015. Throughout the scoping process, during the preparation of the Certificate Application, and throughout the remainder of the Article 10 process, the Applicant will continue to implement the PIP and conduct outreach activities.

Observation and Commentary on PSS Reviewing Appendix A which supposedly documents the community outreach, I found that the 6/10/2015 Somerset Town Board Meeting attended by Dan Fitzgerald(Apex), Taylor Quarles(Apex), Bo Shuff(Apex), Paul Devlin(Apex) was actually described as the Monthly Yates Town Board Meeting with members of Yates Town Board in attendance.

Again the 7/8/2015 Somerset Town Board Meeting attended by Taylor Quarles( lighthouse Wind), with Yates Town Board, Members of Public, Members of Press attending and the Monthly Yates Town Board Meeting listed as the purpose of the meeting.

How accurate is the documentation of their public outreach activities if they do not document correctly who is in attendance, and what the purpose of the meeting is. Town of Somerset meetings are attended by the Somerset Town Board not the Yates Town board and the purpose of the meeting is Town of Somerset board meetings not Yates business. Clearly the information was just cut and pasted without any attention to detail. How accurate is the rest of this document? So how accurate is the log of public involvement? Can any entry be believed?

If this document is not accurate and this depicts the attention to detail of their company, should we be allowing this company to build monstrous industrial wind turbines in this rural community?

Also, with the exception of a few notations early on in the process, there is no notation of emails, phone calls or other communications received from the public from the Town of Somerset or Yates and the Apex response to these communications or answers to questions posed. Emails and questions posed in writing or verbally should be listed and answers provided -or perhaps the fact that no answers were provided needs to be delineated.

Page9and 10 2.1.1. Apex PSS Statement: Description of existing setting and land use

Observation and Commentary on PSS Airfields are not identified in the PSS description of the existing setting. Both towns of Yates and Somerset have airstrips on FAA maps. Airfields cannot be removed from existing FAA maps in the event of an emergency so a plane in trouble can use the map available to them and count on airfields Identified existing on the ground below. (Not every pilot has up-to-date FAA maps).

Krull park should also be listed and described as within 5 miles of the proposed area with water spray park, swimming, picnicking, and site for large community and fundraislng events such as the, Polar Bear Plunge, Pirate Festival and Celtic Festival, etc.

Also in the area are two Christian camps and several wineries. The possible impact on these areas needs to be addressed.

Pace 12 2.1.1

Apex PSS Statement: Further impacts to agricultural land uses may occur because of temporary impact.s such as erosion, topsoil mixing, and soil compaction.

Observation and Commentary on PSS Topsoil mixing with subsoil is not a temporary impact - neither is soil compaction- it has long term consequences to agriculture as well as water absorption through compacted layers that create a hardpan. Water will transverse the hardpan not be absorbed. Also plant roots will follow the hardpan layer creating shallow rooted plants that are very susceptible to drought and cause plant lodging. Methodologies that specify how the topsoil mixing with sub soil should be specified and how soil compaction is to be mitigated other than using a soil ripper down to a depth of 18 inches. Also, what guarantees does the community have that any practices Identified will actually be implemented and what is the repercussion of they are not completed to the satisfaction of the land owner.

Apex PSS Statement: Construction of the Project is not expected to result in any other land use impacts outside of the Project site.

Observation and Commentary on PSS What about impact on roads of transportation of thousands of tons of concrete, gravel, cranes, turbine components over roadways from hundreds of miles away? What about alterations made to roads to allow extra long tower components to turn corners? What about the impact of blasting 30-40 feet into the bedrock to lay foundations containing 62 tons of concrete and rebar for each of 70 industrial wind turbines? This section does not address blasting in any form yet on page 28 (section 2.4.2.1.) it acknowledges that blasting is possible but only addresses it in relation to noise impacts. What of the impact to the land, ground water, wildlife, building foundations, roads, etc.?

What about the impact of trenching to lay power cables and its impact on the flow of ground water? What of the impact of thousands of tons of concrete impacting groundwater pH, local wells, and eventually streaming into the streams and Lake Ontario?

What about staging areas? What about the permanent (or as permanent as the industrial wind turbines are) substation?

How are the transmission lines to be connected to the grid if the leases do not provide a continuous path to the high tension power lines? This is not addressed anywhere in the PSS.

Page 13 Apex PSS Statement: It is expected that the Project will operate in compliance with local zoning ordinances and that the Project may, through lease payments, allow some lands to remain in agricultural production that otherwise may not.

Observation and Commentary on PSS Apex infers that this land is marginal as are the farming operations that make use of it. This is not the case. Dairy farms in these towns have expanded to be very large dairies- recently building new barns and milking parlors. Fruit farms are replanting new varieties of fruit trees, expanding to wineries and farm markets. Mennonite and Amish families have moved into the town of Yates and are farming successfully, increasing their holdings and retail operations to include bulk food stores, meat markets and greenhouses as well and roadside markets. Corn and soybean production has increased to meet the needs of biofuels facility in Albion. Farmland is of high quality and in demand. Four separate farmers have sought to rent our farmland in the past year. There is no danger of it going out of production. Only marginal lands are being taken out of production across New York State and in this area lands that have not been farmed for years are being cleared and planted. This statement is misleading the state to believe that this is a marginal, poverty stricken rural area.

Page 13 Apex PSS Statement: Wind projects provide a potential means of reversing the trend of farm abandonment and preserving the rural/agricultural character of many areas.

Observation and Commentary on PSS This statement is misleading for the reasons listed above. Farms are not being abandoned in this area. This mi.sleading stamen should be deleted.

Page 13 Apex PSS Statement: In this way, a wind project use is not only compatible with the existing land uses in much of the Project area, but also enhances the existing land uses by increasing the productive value of land per acre, while coexisting with ongoing agricultural use of those acres, and aiding landowners in making continued agricultural use of those areas more financially sustainable.

Observation and Commentary on PSS This statement is questionable at best and is yet to be determined if it will increase agricultural land values. Impact on farming areas are yet to be seen. I do not believe this statement is justifiable.

Page 15 Apex PSS Statement: Cross agricultural fields on ridge tops and other high ground to minimize cut and fill as well as potential drainage problems.

Observation and Commentary on PSS This statement was cut and pasted from other applications. The topography of this area does not include ridge tops. It is FLAT LAND. This statement should be eliminated or revised to t ruly represent the topography of this area.

Pace 11. 2.3.1. Public Health and Safety Apex PSS Statement: In addition to the potential risks mentioned above, it is important to note that the Project would result in significant positive impacts to public health.

Observation and Commentary on PSS This is yet to be determined and should not be taken as a given. Across the globe people who live industrial wind turbines disagree and the science is just beginning to document that this is not the case. Unless the applicant is going to design and fund a comprehensive research project to substantiate this statement it should be removed from the proposal. Especially since the Kintigh Power Generating Plant is the cleanest coal burning plant east of the Mississippi River. The claims in this application do not represent this area accurately.

Page 18-19 2.3.1 Health and Safety Apex PSS Statement: Existing emergency services in the vicinity of the Project are expected to be sufficient to address any public health and safety issues that may arise during construction or operation of the Project. (And the Barker Fired Department and Lyndonville Fire Department are listed.)

Observation and Commentary on PSS How are either of these two small volunteer fire departments expected to deal with a nacelle on fire more than 200 feet in the air?

Page22 2.3.3.2 Blade Thraw/ Tower Collapse Apex PSS Statement: The Applicant will provide certification by a registered New York State professional engineer that the tower's design is sufficient to withstand wind loading and seismic activity requirements for structures as established by the New York State Uniform Construction Code. Specifications regarding the wind speeds and conditions the selected turbine is designed to withstand will be provided in the Certificate Application.

Observation and Commentary on PSS This area is rife with fault lines as identified by the University of Buffalo. Four small earth quakes have occurred in the past two years with the epicenter of two within the Town of Somerset and the third just south of it. The latest occurred on December 18, 2015 in the middle of Lake Ontario. A full survey of the fault lines and predicted significant quake should be assessed by contacting the program at the University of Buffalo and determining whether this area provides to significant a risk to proceed. Also a plan to deal with a major earthquake needs to be developed other than simply stating that the impact will be a turbine collapse and as long as it is away from property lines and buildings that no mitigation is required as is indicated later in the PSS.

In addition, since 2014 there have been 309 incidents of "component liberations" or in human language turbine collapse and blade throws. Blades can be thrown 1600 meters from the tower. What plans are there to prevent this from occurring?

Page22 2.3.3.3 Apex PSS Statement: Proper grounding and installation of electrical systems based on the standards of the Notional Electric Code and Notional Electric Safety Code effectively eliminates the risk of stray voltage effects. As such, no further study of stray voltage issues is anticipated.

Observation and Commentary on PSS Stray voltage is a significant problem to dairies where electric milking machines are attached to the living tissue of the cow's udder. Stray voltage issues should be carefully explored not just for human safety but also that of animals (both farm and wild) and dairy farmers should be provided guarantees that it will not be an issue to reduce milk production or an avenue for recompense if it becomes an issue. In addition, a procedure needs to be developed for those farms that do not sign leases if stray voltage becomes a problem for their operations.

Paae 23 2.3.3.5 Gaseous, liquid and Solid Wastes

Apex PSS Statement: The procedures for storage, spill prevention and cleanup of any waste materials will be provided in the SWPPP and the Spill Prevention, Control, and Countermeasure (SPCC) plan. Spill management plans will include the identification of chemicals to be stored onsite and spill response plans.

Observation and Commentary on PSS Beyond the construction phase, the release of lubricating and hydraulic fluids from broken seals in nacelles and during fires needs to be addressed for the life of the industrial wind turbines until their removal.

Pace24 2.3.4.2.2 Blade throw Tower Collapse Apex PSS Statement: Furthermore, members of the public do not generally have access to the private property where the turbines will be located. As a result, blade throw and tower collapse are not anticipated to pose significant risk of public health and safety impacts.

Observation and COmmentary on PSS Since these proposed industrial wind turbines will be sited on farms with livestock and employees actively farming the land adjacent to the industrial wind turbine their safety needs to be addressed beyond that of the general public. They will be the individuals and life forms most at risk.

Page2S 2.3.4.2.3. Apex PSS Statement: Stray voltage will be prevented through proper design and grounding of the Project's electrical system. In the unlikely event stray voltage is reported, the problem will be addressed through the Complaint Resolution Procedure to be developed for the Project.

Observation and Commentary on PSS In this complaint resolution procedure to be developed a mechanism for farm's to be reimbursed for losses to milk production or animal loss due to stray voltage needs to be included since this is an economic issue. In addition, a procedure needs to be developed for those farms that do not sign leases if stray voltage becomes a problem for their operations.

Page 25 2.3.4.2.4 Apex PSS Statement: Prior to construction, a Fire Protection and Emergency Response Plan will be developed in consultation with the fire department(s) that have jurisdiction over the Project site. This plan will include ......

Observation and Commentary on PSS Will it include the purchase of appropriate equipment for each of the fire departments to access fires at a height of 200+ or- feet? Or will they just be expected to let it burn out and keep people away from falling debris that is on fire? Or put out the grass fires that any falling debris may create? What then of any toxic waste that may result?

Pages23-27 2.3.4 Avoidance and Minimization of Adverse Impacts Rather than continue to respond to this section I would like to state that this section- 2.3.4 Avoidance and Minimization of Adverse Impacts is a joke. It provides no information of any substance whatsoever! All that it basically states is that the actual application will contain that information. How can we respond to the plans of Apex if there are no plans to respond to?

Page28 2.4.2.1 Construction

Apex PSS Statement: None Observation and Commentary on PSS There is no reference to blasting in this section. later in the PSS such a need has been identified. If the foundations for these industrial wind turbines are to go 30-50 feet into the ground It is very likely that Apex will be blasting into bedrock which in some of these areas is just below three feet of the surface soil. Blasting and its impact on noise, disturbance of people and animals, and impact on fault lines must be addressed.

Page29- 30 2.4.2.2 Operation (lnfrasound acknowledgement)

Apex PSS Statement: The interaction of these factors may give rise to noise impacts, which can generally be grouped into three categories: • Subjective effects including annoyance, nuisance, and dissatisfaction. • Interference with activities such as speech, sleep, and learning. • Physiological effects such as anxiety, tinnitus, or hearing loss.

Observation and Commentary on PSS Nowhere in this acknowledgement did you include an effect such as motion sickness/air sickness which affects not all people but is significant for those affected nor is it acknowledged that those who suffer from migraine headaches are also affected by infrasound. Since the land that has already been leased is about half that is needed for the total proposed project, Apex's claim of proper siting to mitigate the problem hits a false note. They will need to cram as many turbines onto the existing land as possible thus making a lie of their proper siting plan.

Also, the noise makers that they have indicated in their proposal of the baseline sound of the area are of very short term -a tractor working a field once during planting for several hours, once again during harvest for several hours -a truck driving by or a mower operating. They are not day in and day out, morning and night constant noise. If the Apex definition of annoyance as one of the factors for those disturbed by the sound and infrasound of the turbines there really is no comparison and the commentary listed here to mitigate it is insufficient.

Page 38 2.6.1.2. Seismoloey

Apex PSS statement: The USGS earthquake probability database indicates a 1.90% chance of a major earthquake (greater than 5.0 magnitude) within the next 50 years within 50 kilometers of Niagara County and a 1.48% chance within 50 kilometers of Orleans County (Homefacts, 2015a,b). The largest earthquake recorded within 30 miles of Niagara County was a magnitude 3.8 earthquake in 1999 and the largest earthquake recorded within 30 miles of Orleans County was a magnitude 3.6 magnitude earthquake in 1998 (Homefacts, 2015a,b). While there is a moderate probability of earthquakes occurring in the area, they are likely to be low-magnitude events causing little or no damage to structures. Therefore, the probability of impact from this hazarcl is considered low (Niagara County Emergency Services, 2014). ..

Observation and Commentary on PSS I believe the data on the seismology of the area to be out-of date as indicated above. Four small earth quakes have occurred in the past two years with the epicenter of two within the Town of Somerset and the third just south of it. The latest occurred on December 18, 2015 in the middle of Lake Ontario. Dr. Robert Jacoby, a geology professor at The University of Buffalo has stated that a 6.5 earth quake could occur in Western New York. A 1988 quake in Quebec registered 5.9 on the Richter scale and that same fault line runs dose to the proposed area. He should be contacted to identify fault lines and recent prediction of a significant earthquake in the not too distant future.

Here is hi.s map of New York Fault lines:

Pale 54 Z.7.S.Z Proposed measures to mltisate unavoidable impacts

Apex PSS Statement: A post-construction avian and bat fatality monitoring program will be developed in accordance with 16 NYCRR § 1001.22(h)(2) and in consultation w ith the USFWS and NYSDEC. In the event that mortality issues arise that are deemed significant and warranting management response, the Applicant will work with the USFWS and NYSDEC to address the issue or develop additional mitigation measures as appropriate. Observation and Commentary on PSS Acknowledging that unavoidable impacts are expected with birds that are endangered or threatened or even in the migratory pathway of bats, songbirds, raptors and waterfowl and only monitoring those impacts on bird and bat fatality is unacceptable. This statement alone should indicate that this area home to bald eagles, Northern long-eared bat, short-eared owl, Cooper's hawk, Sharp-skinned hawk, Northern Harrier, Osprey, Red-shouldered Hawk, common night hawk, re-headed woodpecker, and numerous song-birds is not a suitable location for this industrial wind turbine complex to be built. The fact that there is no plan to mitigate those impacts is disturbing-it will only be developed after the birds and bat have been killed. This is unacceptable.

Additionally, across the United States where these industrial wind turbines are placed, bird and bat mortality figures are not publically monitored nor scientifically researched and the wind energy industry prevents that research from being conducted. How does Apex guarantee to New York State and the residents of these communities that this information will be gathered and that any attempts to reduce these fatalities will be implemented? What plans to reduce this impact can Apex make? How will Apex deal with federal charges if bald eagles are killed? Before a single turbine is built Apex should be able to guarantee that birds and bats will not be harmed.

Page 76 2.11.5 Proposed Measures to Mitigate Unavoidable Impacts on Communications

Apex PSS Statement: If issues arise during operation of the Project, the operator will resolve those issues on an individual basis. Mitigation of impacts may involve such measures as the installation of auxiliary antennas to maintain coverage in affected areas, adjusting existing receiving antennas, upgrading antennas, or providing cable television or satellite television systems to affected residences.

Observation and Commentary on PSS During discussions with Apex it was acknowledged that cell phone reception, antenna television reception, radio reception and other communication technologies will most likely be negatively impacted during construction and operation of the industrial wind turbines. The Apex plan to address those impacts on an individual basis is insufficient. This area is too rural for cable to be provided to residents outside of the villages. Verizon Fios service is available to the school buildings alone and although the fiber optic cables pass in front of residences on rural roads they are not permitted to access that service. Apex should identify that it will make these services available to all residences and pay for those services for the duration of the project and until the industrial wind turbine waste is removed. In other locales it is common for industrial wind turbine companies to pay for cable or satellite service installation and for one year of service. This is not acceptable.

Additional Commentary

Nowhere in this description does it address what will happen with the sub-station. Will it be dismantled and the land returned to a farmable status? This needs to be addresses as well as any staging areas or other land taken out of production. Also, In the filing of the PSS both the mailing address and email address posted in Apex's Preliminary Scoping Statement and the PSC site were incorrect. Along with the inaccuracies found in the documentation of community outreach this is a small but significant example of the lack of attention to detail by Apex. If this company cannot get their own address correct how can they be trusted to create an industrial project of this magnitude and follow their own proposal? EXHIBIT 23 January 11 , 20 J 6

Hon. Kathleen H. Burgess, Secretary Public Service Commission, Three Empire State Plaza, Albany, New York 12223-1350

Mr. Dan Fitzgerald, Sr. Dev. Manager, Court Square Building, 310 4th Street NE, Suite 200, Charlottesville, VA 22902

PSS Comments Regarding Bats

Dear Honorable Burgess and Mr. Dan Fitzgeraald,

After reviewing the Preliminary Seeping Statement (PSS) for the Lighthouse Wind Project I have many questions and concerns.

For many years I have been interested in bats and their behavior. It was with great delight that when we moved to our home in the Town of Yates. we di scovered that we had a large bat population living right in our own backyard. In the city kids go home in the evening when the street lights go on. At our house, the kids come in when the bats come out!! Bats are not only fascinating but we owe quite a bit to their voracious appetite for insects. In the next few minutes I hope to convey to you why bats are so important to preserve and protect especially in the northeastern United States.

Jn the article Behavior of Bats at Wind Turbines (see Appendix 1) , Paul Cryan, research biologist from the Fort Collins Science Center, United States Geological Survey (USGS), Fort Collins, CO, and his eleven colleagues reported many find ings about their research on bats and wind turbines and how the turbines are causing "unprecedented numbers of bat fatalities." In this article it is reported that four different forms of surveillance were used in order to try to get to the bottom of why bats are so susceptible to collisions with wind turbines including thermal video-surveillance cameras, supplemented with near-infrared video, acoustic detectors and radar.

I was intrigued by the extent of monitoring done by these non-biased researchers so I sent an e-mail (see Appendix 2) on October I 0, 2015, to Mr. Taylor Quarles, the local representative for Apex and asked him some questions about the monitoring that was being done at the meteorological (MET) tower that is located in the Town of Yates on Marshall Rd. Mr. Quarles sent an e-mail back on October 23, 2015 (see Appendix 3), and attempted to answer my questions. After reading the e-mail from Mr. Quarles, my concern went to a new level and my questions were even more numerous. Mr. Quarles revealed that there was only going to be one form of surveillance that was going to be done in our town regarding bats. That was going to be acoustic monitoring at the MET tower. He also stated that when the PSS was tiled that there would be "greater detail on the type, scope and methodology of studies." Mr Quarles also mentioned, " We have had a third party wildlife consultant with trained biologists on staff perform acoustic bat studies. This involves placing acoustic monitors in numerous locations throughout the project site and listening to bat activity across multiple nights. The scope and methodology of this study was determined in consultation with applicable agencies."

Since I was not satisfied with Mr. Quarles answers to my questions and that he didn't name the '·third party wildlife consultant" or the "applicable agencies," I decided to try to get more information myself. You might be wondering at this point, why I am so concerned about bat population. As the information in this correspondence will prove, 1 felt that the fewer bats in our area the worse off we would be. I have heard of Wh ite Nose Syndrome (WNS) in bats in New York State and I know that it is an infection in hibernating bats that can actually kill entire colonies of bats. I thought that maybe it would lower bat populations in out town even further to have the wind turbines here too. My thoughts were right because in my research I actually was fortunate enough to receive correspondence from Paul Cryan, the research biologist mentioned above.

On December I I, 20 I 5, I wrote an e-mail (see Appendix 4) to Dr Cryan asking him about his article on Bat Behavior at Wind Turbines and asking him to clarify for me what types of monitoring would be appropriate in our area. I received his gracious reply on December 21. 20 I 5 (see Appendix 5). I was especially interested to get his response because as he stated. "Please keep in mind that USGS has a ·policy neutral' mandate, so I can only answer questions directly relating to the science directed at bats and wind turbines."

I was glad to finally get some real answers to my questions based on science and research and not on vague studies done by un-named consultants. I also found the information in the chapter that Dr Cryan attached to his e-mail to me very interesting (see Appendix 6). After you read Dr Cryan's e-mail, you will understand why I am concerned about the methodology that Lighthouse Wind is using to monitor bat behavior in our town. In particularly two paragraphs stand out;

Although acoustic detectors on the ground and on met towers deployed before turbines are built (often called 'pre-construction monitoring') have been used at dozens (if not hundreds) of wind energy facilities in the U.S. over the past decade or so, I sti ll have not seen any clear evidence that pre-construction acoustic activity is an accurate predictor of bat risk after wind turbines are built. This may be because bats are not attracted to met towers like they may be to turbines, or for some other reason. such as if bats do not always echolocate. Unfortunately we do not really have a better and more efficient method of detecting bats in an area prior to landscape changes, so suggesting an alternative is difficult. Acoustic detectors can be useful for detecting the presence of a species, but I think the problems arise when people try to take that information source too far and use the data to conclude that species not detected were not present. Another limitation of acoustic detectors is that they offer no information on the abundance of bats present, only activity levels (e.g., the same bat passing the detector 100 times results m a similar measure as I 00 bats passmg once each).

Despite years of trying, we have still not come up with a way of predicting the number of bats that might die at turbines built in a given area, which can be very frustrating. We generally see the highest fatality rates in North America at wind sites in the Appalachians and maybe near the Great Lakes, but publicly available data are very limited, because in the U.S. most sites are on private land. Many of us involved in the issue are working in the dark when it comes to understanding the bigger picture of risk at landscape scales because our understanding of where and when bats are dying at turbines is limited to a mosaic of very few sites scattered through time.

After reading all that Paul Cryan had to say in his letter and what was stated in the article Behavior of Bats at Wind Turbines, I realized that the monitoring of bats in the Town of Yates in the "pre-construction" phase of Lighthouse Wind is not adequate. Another important finding in the article is that bats seem to be attracted to wind turbines as stated in the article:

Despite our observations that suggest bats orient toward wind turbines using flow and visual cues. the reasons why they do so remain unknown. Although we could not determine why bats behaved the way they did around turbines, we suspect that such behaviors evolved in association with trees. At a fundamental level, tree bats may not be able to discriminate wind turbines from trees (3). Both trees and turbines have tall and cylindrical "trunks" (monopoles), visually conspicuous '"crowns" (nacelles), and radially extending " limbs" (blades). Bats are rarely reported interacting or colliding with other tall structures (7), as might be expected if the behaviors we observed were a general response to structural stimuli. However, a recent study revealed higher activity of tree bats during late summer and autumn at tall communication towers compared with surrounding habitats (31 ). Bats may not have the cognitive ability to differentiate wind turbines or other tree-like structures from real trees either at a distance or at close range, particularly if visual cues, such as similar silhouettes against the night sky, are accompanied, reinforced, or overwhelmed by other perceptual cues, such as similar downwind airflow patterns. For example, the predatory beetle (Rhizophagus grandis) responds to disturbance of airflow around a simulated tree more than the tree' s visual silhouette {32). We do not know if the patterns of behavior we observed apply to cave-roosting species of bats that die at wind turbines [e.g .. genera Myotis and Tadarida (6)], but even cave-roosting bats may occasionally visit trees for the reasons discussed below:'

After the PSS was filed I was able to read what monitoring of bats was actually going to done in the Towns of Yates and Somerset. I was shocked to find out that contrary to what Mr. Quarles stated. the acoustic monitoring would not be done " in numerous locations throughout the project site." In fact, in Appendix B of the Preliminary Scoping Statement for Lighthouse Wind, in task 3: Bat Acoustic monitoring, wi ll be conducted as fo llows:

One year of bat acoustic monitoring wi ll be conducted at one meteorological (met) tower planned for installation in the Project area during spring 2015. The monitoring will be used to broadly characterize species groups present and general bat activity in the detectable range of the acoustic devices during the bat activity period (from April 17 to approximately October 15).''

The PSS goes on to say:

Bat acoustic monitoring will be initiated in mid- April and continue to at least October 15 (approximately 27 weeks) using two AnaBat detectors programmed to record from one-half hour before sunset to one-half hour after sun-rise the fo llowing morning. Prior to installation, all units will be calibrated to detect a standardized calibration tone at 20 meters, using a bat-chirp board (Tony Messina, Nevada Bat Technology, Las Vegas, Nevada or equivalent). Detectors will be housed in a weatherproof housing mounted near the base of the met tower. The microphones will be housed in a Bat-Hat (EME Systems, Berkley, California). a weatherproof enclosure and connected to the detectors via a cable. As the met tower is not affixed with brackets to mount the AnaBat detectors, E & E will need to use a pu lley system to raise the upper detector. The other detector will be placed near ground level at the met tower and will not require a pulley system. One microphone will be placed approximately 3 metres above ground level (high detector). The high detector cannot exceed this height due to the presence of aviation marking balls that are affixed to the guyed wires of the met tower. Exchange of detector data cards will occur at least every two weeks.

Call echolocation data recorded on the data cards will be analyzed for a total bat activity and identified to species groups using a combination of AnaLook DOS and AnaLook Windows software. Total bat activity will be reported as the number of bat passes per detector per night. A bat pass is identified as any file that contains two or more distinct bat echolocation pulses. In addition, hourly, nightly. monthly, and seasonal averages will be calculated for each detector to identify peaks in bat activity. These analyses will be used ti deduce potential trends in the level and timing of bat activity.

Call fi les with at least five echolocation pulses will be identified to one of three species groups (low frequency, mid frequency, or myotis spp.) using a combination of call characteristics (minimum frequency and slope) calculated in AnaLook. The low frequency group includes bat passes with minimum frequencies, typically below 30kHz and could include hoary bats, big brown bats and silver-haired bats. The mid-frequency group includes calls with minimum frequencies typically between 30 and 45 kHz and minimum slop values <40 octaves per second. The mid-frequency group could possibly include eastern red bats and tri-colored bats. Bats in the Myotis genus typically produce echolocation calls with minimum frequencies of 38 to 50 kHz and have minimum slope values of>40 octaves per second. Bat passes identified to the Myotis spp. Group could possibly include the eastern small-footed bat, the little brown bat and the federally listed (threatened) northern long-eared bat; however this study is designed to assess overall bat activity and seasonal variation. Species specific surveys may be warranted to assess presence/probable absence during summer of federally listed species. Lighthouse is in discussion with USFWS on the most appropriate approach to addressing listed species risk.

So, instead of "numerous locations throughout the project site," there would only be two monitoring detectors at one MET tower in the entire project site that stretches across two towns and includes two different counties as well. One would be at ground level and the other would be placed in proximity to the aviation ball that is already in place on the guide wire. This PSS does not take into account the placement of the second monitor not because of scientific data or because of past studies but because it is more convenient, it would seem, to only put it as high as is available due to an obstruction such as the aviation warning ball.

IfMr Quarles' information about the number of monitors that will be placed in the project area isn't disheartening enough, possibly the time frame that is mentioned is. The first two words in Task 3: Bat Acoustic Monitoring methodology say "One year of bat acoustic monitoring w ill be conducted," and in the very next paragraph it claims that it w ill be "(approximately 27 weeks)" of monitoring that will be done. So, which is it? One year or 27 weeks?

Of an even more serious nature is the fact that the Indiana bat, a New York State and Federally listed endangered species of bat is not even listed in table 4 of the 2.7 Terrestrial Ecology and Wetlands section ofthe Preliminary Scope of Environmental Impact Analysis on page 46 of the PSS. The Indiana bat is also a victim of WNS and so the population of this bat would be especially at risk if turbines were erected in their habitat.

l was also very disappointed to read in the PSS on page 44 under the title of " Mammals" as listed in 2.7.1.2.1 ofthe Terrestrial Ecology and Wetlands section that "Publicly available sources of mammals species ranges are not readily available." It does not take much to do research the types of mammals in Western New York to get very comprehensive lists with detailed remarks about species, numbers, types, habitat (etc). Please find below a list of some excellent examples ofwhere to find publicly available sources of mammals and other forms ofwildlife in the project area.

Mammals I Animals of Western New York https://wnyanimals.wordpress.corn/category/mammals

Mammals - NYS Dept. of Environmental Conservation www.dec.ny .gov/animals/263.html Images for western new york mammals search.aol.com/aol/image

Animals of Western New York I Profiles of Commonly Seen ... https:// wnyanimals. wordpress.com

I was further distressed to see the short list of mammals that are " likely present within the project site." Having lived in our current home in the Town of Yates for the last ten years, l have seen quite a bit of wildl ife just in our own back yard. Some of the species NOT listed in the PSS are as follows: black bear, coyote, marten, beaver, fisher, weasel, mink, skunk and porcupine. There also is another endangered species of mammal that may be located in the project area that is not in table 4 on page 46 of the PSS and that is the Allegheny Wood Rat. Will there be any studies regarding wind turbine impact on these species?

Finally, I feel that because WNS is so prevalent and is such a threat to bats in the area of the proj ect site, it seems like introducing another serious threat into our area is irresponsible. Not only does it pose a threat to bats but it also poses a threat to the economic nature of agriculture. I was shocked to find out by reading the article Economic Importance of Bats in Agriculture in the April 1, 20 I I (see Appendix 7) issue of Science Magazine published by the American Association for the Advancement of Science that the " loss of bats in North America could lead to agricultural losses estimated at more than $3.7 billion/year. Urgent efforts are needed to educate the public and policy-makers about the ecological and economic importance of insectivorous bats and to provide practical conservation solutions."

Sincerely, Paula M. Simon Town of Yates I 050 I Millers Rd Lyndonville, NY 14098