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Lippes Mathias Wexler Friedman LLP Partner Dvaccorw, Iippes.Com Buffalo Office 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.
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