Hecate Energy - 17-F-0619

1 2-10-2021 - Hecate Energy - 17-F-0619

2 NEW YORK STATE BOARD ON ELECTRIC

3 GENERATION SITING AND THE ENVIRONMENT

5 CASE 17-F-0619 - Application of Hecate Energy

6 Greene 1 LLC, Hecate Energy Green 2 LLC, and Hecate

7 Energy Green County 3 LLC for a Certificate of

8 Environmental Compatibility and Public Need Pursuant

9 to Article 10 of the Public Service Law for

10 Construction of a Solar Electric Generating Facility

11 Located in the Town of Coxsackie, Greene County.

12 EVIDENTIARY HEARING

13 DATE: February 20, 2021 at 10:31 a.m.

14 LOCATION: WebEx

15 BEFORE: ALJ JAMES A. COSTELLO

16 ALJ ASHLEY MORENO

17 ALJ MOLLY T. MCBRIDE

22 Reported by Janet Wallravin

25 2

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2 NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION 3 BY: MARY ANNE BONILLA, DEC 4 NYS DEPARTMENT OF AGRICULTURE & MARKETS 5 BY: TARA WELLS

6 NEW YORK STATE DEPARTMENT OF PUBLIC SERVICE BY: HEATHER BEHNKE, ESQ. 7 CASSANDRA PARTYKA 8 HECATE ENERGY GREENE 9 BY: TYLER WALCOTT SAM LANIADO 10 ZACHARY PURCDECK

11 TOWN OF COXSACKIE BY: CATHERINE KEMP 12 SCENIC HUDSON 13 BY: AUDREY FRIEDRICHSEN

15 ALSO PRESENT: 16 JASON MULFORD, WITNESS 17 LINDA RIVARD, WITNESS 18 PAT GREEN, WITNESS 19 ANDREW DAVIS, WITNESS 20 DANIEL COLLER, WITNESS 21 PHILIP MOONEY, WITNESS 22 SEAN MEEGAN, WITNESS 23 JENNIFER CHESTER, WITNESS 24 GABRIEL WAPNER, WITNESS 25 JOSH BERKOW, WITNESS 3

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2 I N D E X O F P R O C E E D I N G S

3 WITNESSES SWORN:

4 (WALCOTT, RIVARD, MOONEY, GREEN, MEEGAN, WAPNER,

5 CHESTER, BERKOW AND MULFORD) 13

6 JOSH BERKOW:

7 CROSS EXAMINATION BY MR. WALCOTT 15

8 CROSS EXAMINATION BY MS. FRIEDRICHSEN 139

9 CROSS EXAMINATION BY MS. KEMP 162

10 JASON MULFORD:

11 CROSS EXAMINATION BY MS. KEMP 310

25 4

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2 A.L.J. COSTELLO: Good morning

3 everybody. We're going to get started. I just want

4 to check in with our court reporter to make sure

5 you're on the line and ready to go.

6 THE REPORTER: Yep, I am here. We can

7 go on the record.

8 A.L.J. COSTELLO: Okay, we're going to

9 go on the record.

10 (On the record at 10:31 a.m.)

11 A.L.J. COSTELLO: I call case number

12 17-F-0619, application of Hecate Energy Greene 1 LLC,

13 Hecate Energy Green 2 LLC, and Hecate Energy Green

14 County 3 LLC for a Certificate of Environmental

15 Compatibility and Public Need Pursuant to Article 10

16 of the Public Service Law for Construction of a Solar

17 Electric Generating Facility located in the Town of

18 Coxsackie, Greene County. We are here today pursuant

19 to a Notice of Evidentiary Hearing that was issued by

20 the Secretary of the Siting Board on January 25,

21 2021. There will be three hearing examiners on the -

22 - at the hearing today. My name is James Costello.

23 I'm an administrative law judge with the Department

24 of Public Service. Also on the line is Judge Ashley

25 Moreno also from the Department of Public Service and 5

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2 Judge Molly McBride from the Department of

3 Environmental Conservation. We are on the line

4 today. Everybody has been muted when they joined the

5 line, and you're going to have to put -- unmute your

6 line when you're ready to talk. And we ask that to

7 prevent feedback that you keep your line on mute

8 until you're ready to talk and then to return

9 yourself to mute after you finish talking. Also, for

10 clarity of the record, we would need you to identify

11 -- identify yourself by name before you speak and --

12 so that we have that clear for the transcript. So,

13 with that, I'm going to start with appearances, and

14 we'll start with the applicant Hecate Greene.

15 MR. WALCOTT: Thank you, Your Honor.

16 On behalf -- on behalf of the applicant, the law firm

17 of Read and Laniado, I, Tyler Walcott; Sam Laniado;

18 and Zachary Purcdeck.

19 A.L.J. COSTELLO: Thank you. The

20 Department of Public Service.

21 MS. PARTYKA: Good morning, Your

22 Honor. This is Cassandra Partyka, Assistant Counsel,

23 Department of Public Service.

24 A.L.J. COSTELLO: Thank you.

25 Department of Environmental Conservation. 6

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2 MS. BONILLA: Good morning, Your

3 Honor. This is Mary Anne Bonilla on behalf of the

4 DEC staff, Office of General Counsel.

5 A.L.J. COSTELLO: Okay, Department of

6 Agriculture and Markets.

7 MS. WELLS: Hi. This is Tara Wells

8 from the Department of Agriculture and Markets

9 Counsel's office, and with me is James Mulford.

10 A.L.J. COSTELLO: Okay, thank you. Is

11 there anyone here on behalf of the Department of

12 Health? Okay, I'm not hearing anyone. On behalf of

13 the Town of Coxsackie and the Village of Coxsackie

14 and the Village of Athens.

15 MS. KEMP: This is Catherine Kemp with

16 the law firm of Whiteman, Osterman & Hanna on behalf

17 of the Town of Coxsackie, the Village of Coxsackie,

18 and the Village of Athens. I would like to just note

19 for Your Honors that I anticipate that the Village of

20 Athens will be voting to withdraw as a party in this

21 proceeding this evening.

22 A.L.J. COSTELLO: Okay and then you'll

23 notify as that occurs?

24 MS. KEMP: Yes. Once I have their

25 decision in writing, I will file it with Your Honors. 7

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2 A.L.J. COSTELLO: Okay, thank you very

3 much. Okay, Scenic Hudson.

4 MS. FRIEDRICHSEN: Good morning, Your

5 Honors. This is Audrey Friedrichsen for Scenic

6 Hudson.

7 A.L.J. COSTELLO: Greene Land Trust.

8 Let me go onto -- is there anyone on the line for the

9 Association of Property Owners of Sleepy Hollow Lake?

10 Has there -- is there anyone else that's on the line

11 who is making an appearance today that I have not

12 called?

13 MS. BEHNKE: Yes, good morning, Your

14 Honors. This is Heather Behnke, Assistant Counsel on

15 behalf of the Department of Public Service.

16 A.L.J. COSTELLO: Thank you.

17 MS. RIVARD: Good morning. This is

18 Linda Rivard with Tetra Tech and Hecate Green.

19 A.L.J. COSTELLO: Okay, thank you. So

20 I'm going to briefly just go over the proposed

21 schedule that we have to make sure we're all on the

22 same page. So what we have scheduled today is that

23 we'll start with Hecate Green's witnesses. We're

24 going to start with Scenic Hudson's cross examination

25 followed by the municipalities, the Town of Coxsackie 8

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2 and the Villages of Coxsackie and Athens cross

3 examination. Then we'll turn to the Department of

4 Public Service staff witnesses for the municipalities

5 cross examination, and we'll finish off with the

6 agricultural -- Department of Agriculture and Market

7 witnesses again for the municipalities to conduct

8 their cross examination. Is there anything --

9 anything that --

10 MR. GREEN: I missed -- I think I was

11 still on mute. My name is Pat Green. I'm here on

12 behalf of Tetra Tech Environmental Consultants for

13 Hecate.

14 A.L.J. COSTELLO: Okay, thank you.

15 All right, so I just want to -- go ahead.

16 MS. BONILLA: Excuse me, Your Honor.

17 This is Mary Anne Bonilla from DEC. We just wanted

18 to know have the -- reserve the right to ask any

19 additional cross questions should Scenic Hudson

20 discuss any DEC issues with the Hecate Green

21 witnesses. We noted that their subjects intend to

22 talk about grassland bird issues. We don’t

23 anticipate having to cross, but just should the

24 questions arise we'd like to reserve that. Thank

25 you. 9

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2 A.L.J. COSTELLO: Okay, thank you.

3 Okay and I just want to let you know that one of the

4 ad-hoc siting board members is also on the line

5 today. That's Mr. Daniel Kohler, so he'll -- he'll

6 be listening in. He's on the line. Thank you Mr.

7 Kohler for being here with us today, so let's on.

8 I'm just going to say a few things about -- about the

9 process. We just want to remind you that when your

10 witnesses are testifying we ask that they not make

11 statements that are subject to check unless they --

12 that's absolutely necessary and that information can

13 be quickly verified in which case we'll take a short

14 break so that the witness can get the information and

15 provide it because, you know, we plan on wrapping

16 this up today. And, once the witnesses are excused,

17 you know, we don’t want to have to bring anybody back

18 to -- for further information. I also am going to

19 ask that the attorneys who are having witnesses

20 testify today that they affirm on the record that

21 they will not confer with their witnesses during

22 cross examination. So I'm just going to ask for the

23 counsel for those witnesses to agree to that that

24 they will not have any communications with their

25 witnesses during cross examination, and I'm just 10

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2 going to turn first to Hecate Green's counsel.

3 MR. WALCOTT: Thank you, Your Honor.

4 I affirm -- this is Tyler Walcott. I affirm that I

5 will not communicate with our witnesses during cross

6 examination.

7 A.L.J. COSTELLO: Okay, Department of

8 Public Service.

9 MS. PARTYKA: Yes, Your Honor. This

10 is Cassandra Partyka, Assistant Counsel Department of

11 Public Service. I affirm that we will not

12 communicate with our witnesses while they're being

13 cross examined.

14 A.L.J. COSTELLO: Okay and Department

15 of Agriculture and Markets.

16 MS. WELLS: Good morning. This is

17 Tara Wells, and I affirm that I will not communicate

18 with Mr. Mulford while he is being cross examined.

19 A.L.J. COSTELLO: Okay, thank you.

20 And before we bring up our first panel of witnesses,

21 I just want to acknowledge that we received various

22 affidavits on behalf of witnesses who will not be

23 appearing at the evidentiary hearing. We intend to

24 address those affidavits. We're going to put them on

25 the record as exhibits later on after the testimony 11

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2 and cross examination has been conducted. We do note

3 that there's a few clarifications that we have with

4 respect to the affidavits, and perhaps some of them

5 need to be corrected, but we'll address that later

6 on. So, with that, we'll start with Hecate Green.

7 And I just need you to indicate who -- you know, who

8 is going to be on the panel, and then I'll swear them

9 in and you can do your -- you know, lay the

10 foundation for their testimony and exhibits.

11 MR. WALCOTT: Hecate Green panel, can

12 you introduce yourselves please?

13 MS. RIVARD: This is Linda Rivard with

14 Tetra Tech.

15 MR. MOONEY: This is Philip Mooney

16 with Hecate Green Energy, the applicant.

17 MR. GREEN: Pat Green with Hecate or

18 Tetra Tech on behalf of Hecate.

19 MR. MEEGAN: I'm Sean Meegan with

20 Tetra Tech on behalf of Hecate.

21 MS. CHESTER: Jennifer Chester with

22 Tetra Tech on behalf of Hecate.

23 MR. WAPNER: Gabe Wapner with Hecate

24 Energy.

25 MR. BERKOW: Josh Berkow with Mott 12

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2 MacDonald.

3 A.L.J. COSTELLO: Okay. Is that

4 everyone appearing for Hecate today? And I'm going

5 to turn to Hecate's counsel and clarify that we have

6 everyone that's supposed to be on the witness panel

7 today here. And also for -- just if you can identify

8 the three witnesses that you indicated would be

9 submitting affidavits, which that's fine. You can

10 submit the affidavits later on during the week, but

11 we just would like to know which three witnesses

12 those affidavits will be coming from.

13 MR. WALCOTT: Sure. That is everyone

14 that is appearing on the panel today, and the -- the

15 three affidavits outstanding are from Tricia

16 Pellerin, Robert Peltier, and Matt Dadswell [phonetic

17 spelling].

18 A.L.J. COSTELLO: Okay, thank you. So

19 what I'm going to do is swear in the witnesses. So

20 what I'll do is read out the -- you know, I'll swear

21 you in, and I'll ask each witness, you know, as you

22 identified -- in the order that you identified

23 yourselves to basically state your name, you know,

24 agree -- state yes if you agree to the swearing in.

25 So that's what we'll do, and I'm going to start that 13

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2 now. So let me just start. Also, when you state

3 your -- when you state your name, give your business

4 address for the record as well, so I'm going to

5 start. To the witnesses, do you swear or affirm that

6 the testimony you will provide is the truth? So

7 we'll start with Ms. Rivard.

8 MS. RIVARD: I do. This is Linda

9 Rivard with Tetra Tech at 451 Presumpscot Street in

10 Portland, Maine.

11 MS. RIVARD; SWORN

12 A.L.J. COSTELLO: Okay, thank you.

13 And I just want to just indicate for our court

14 reporter too if -- if for any reason you need to

15 break in for clarity -- you know, clarity of the

16 record or if you don’t get something, please feel

17 free to do so.

18 THE REPORTER: Okay, thank you.

19 A.L.J. COSTELLO: Okay and I think the

20 next witness was it Philip Mooney?

21 MR. MOONEY: Yes -- yes, Your Honor.

22 Philip Mooney with Hecate Energy. Yes, I do -- I do

23 affirm that, and my address is 621 West Randolph

24 Street in Chicago, Illinois 60610.

25 MR. MOONEY; SWORN 14

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2 A.L.J. COSTELLO: Okay, thank you.

3 Okay, Mr. Green.

4 MR. GREEN: I do affirm everything I

5 say today is the truth. This is Pat Green at -- for

6 Tetra Tech at 301 Ellicott Street in Buffalo, New

7 York.

8 MR. GREEN; SWORN

9 A.L.J. COSTELLO: Sean Meegan.

10 MR. MEEGAN: Yes, this is Sean Meegan

11 with Tetra Tech. I'm at 3136 South Winton Street in

12 Rochester, New York, and I affirm to tell the truth.

13 MR. MEEGAN; SWORN

14 A.L.J. COSTELLO: Thank you, Jennifer

15 Chester.

16 MS. CHESTER: Hello. This is Jennifer

17 Chester 1560 Broadway, Denver, Colorado 80202. I

18 affirm I will tell the truth today.

19 MS. CHESTER; SWORN

20 A.L.J. COSTELLO: Gabriel Wapner.

21 MR. WAPNER: Yes, Gabriel Wapner with

22 Hecate Energy 621 West Randolph Street Chicago,

23 Illinois 60661. I do affirm to tell the truth.

24 MR. WAPNER; SWORN

25 A.L.J. COSTELLO: Okay and I believe 15

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2 the last person is Mr. Berkow.

3 MR. BERKOW: This is Josh Berkow. I

4 do affirm that I will tell the truth. I work for

5 Mott MacDonald, and my business address is 705 South

6 Main Street Plymouth, Michigan 48170.

7 MR. BERKOW; SWORN

8 A.L.J. COSTELLO: Okay, thank you.

9 And I'll turn it over to counsel.

10 MR. WALCOTT: Yes, Your Honor. This

11 is Tyler Walcott with the law firm of Read and

12 Laniado, and I affirm that I will tell the truth.

14 A.L.J. COSTELLO: I'm turning it over

15 to you so you can lay the foundation for the -- the

16 testimony, direct and rebuttal.

17 MR. WALCOTT: Sure -- sure, Your

18 Honor. So on December 27, 2019, the panel of -- the

19 prefiled direct panel of Hecate Green submitted

20 direct testimony, and on January 15, 2021, the

21 rebuttal panel testimony of Hecate Green submitted

22 rebuttal testimony.

23 A.L.J. COSTELLO: Okay and generally

24 you would -- you would ask whether, you know, they

25 have any corrections to it and whether they, you 16

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2 know, if they -- if they were giving that testimony

3 today whether the testimony would be the same as what

4 they provided.

5 CROSS EXAMINATION

6 BY MR. WALCOTT:

7 Q. Yes, Your Honor. Hecate Green

8 panel, the testimony that you submitted, do you have

9 any corrections other than the corrected version of

10 the testimony that was submitted to DMM?

11 A. (Mooney) This is Philip Mooney.

12 No Tyler, no corrections.

13 Q. Okay and -- and -- and everything

14 that was submitted in the direct and the rebuttal

15 testimony can be accepted as the same as if it was

16 given today?

17 A. Yes -- yes.

18 Q. Thank you.

19 A.L.J. COSTELLO: Okay and I -- and I

20 just want to point out there is one correction on the

21 corrected rebuttal testimony, and it is only with

22 respect to on page five from lines eight through

23 nine. The witness, Ms. Linda Rivard, indicated on

24 the corrected rebuttal testimony that she had not

25 testified previously, but she had also provided 17

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2 direct testimony. So that -- that -- with that

3 correction, do you have a motion to --

4 MR. WALCOTT: Yes -- yes, Your Honor.

5 Hecate Green would like to move to make that

6 correction now.

7 A.L.J. COSTELLO: Okay and that's -- I

8 assume there's no objection and that's granted.

9 Also, do you want to move into the record the

10 testimony and exhibits? Do you have a motion for it?

11 MR. WALCOTT: Yes. Hecate Green would

12 like to move to enter the direct and rebuttal

13 testimonies and attached exhibits to the record.

14 A.L.J. COSTELLO: Okay, thank you.

15 And is there any -- with respect to the exhibits, do

16 we have any objections at this time? Okay, hearing

17 none. Judge Moreno would like to ask a question.

18 A.L.J. MORENO: Good morning everyone.

19 Mr. Walcott, I just had a clarification. You noted

20 that there were additional affidavits that will be

21 provided, and I note that there were two individuals

22 who were part of the initial direct panel, Lori

23 Davidson and Lynn Gresock, and I just wondered what

24 the status is whether we are expecting additional

25 affidavits for those witnesses. Could you please 18

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2 clarify?

3 MR. WALCOTT: Oh, yes, Your Honor. I

4 apologize. So Lori Davidson and Lynn Gresock are no

5 longer part of the team and have been replaced by

6 Jennifer Chester and Sean Meegan.

7 A.L.J. MORENO: Okay.

8 A.L.J. COSTELLO: Okay, so would you

9 just --

10 MR. WALCOTT: We could provide -- we

11 could provide an affidavit to that effect and attach

12 their CV's, the -- the replacement witnesses if that

13 would work.

14 A.L.J. MORENO: Well, let me just

15 clarify. So the --the witnesses that are appearing

16 today are seeking to adopt the testimony submitted by

17 Lori Davidson and Lynn Gresock?

18 MR. WALCOTT: Yes, that's correct,

19 Your Honor. Yes.

20 A.L.J. MORENO: And could you clarify

21 for the record which -- which witness is replacing

22 which witness or seeking to adopt the testimony

23 thereof? I note that you do have other witnesses who

24 have sponsored the application and exhibits as a

25 whole from the direct panel as well. So is it your 19

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2 intention to have the -- the two witnesses that are

3 appearing today adopt the specific sections that were

4 sponsored by Ms. Davidson and Ms. -- and Ms. Gresock?

5 MR. WALCOTT: That's correct, Your

6 Honor. So we would like to have Jennifer Chester

7 adopt the testimony of Lori Davidson and the exhibits

8 that she sponsored in the prefiled direct testimony.

9 And we would like Sean Meegan to adopt the direct

10 prefiled testimony of Lynn Gresock and any exhibits

11 that she filed.

12 A.L.J. MORENO: Okay, thank you.

13 A.L.J. COSTELLO: Okay and since I

14 have not heard any objections to the exhibits, the

15 motion to have the testimony and exhibits entered

16 into the record is granted. And, at this point in

17 the record, the court reporter should enter the files

18 that we have sent to the court reporting agency of

19 the direct testimony of the applicant panel and the

20 corrected rebuttal testimony of the applicant panel.

21 And, with that, I believe we can turn it over to

22 Scenic Hudson's counsel for cross examination.

25 CASE 16-F-0062 20

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

Case 17-F-0619 – Application of Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility Located in the Town of Coxsackie, Greene County.

PRE-FILED DIRECT PANEL TESTIMONY ON BEHALF OF THE CO-APPLICANTS

Panel Witnesses:

Philip Mooney Gabriel Wapner Matt Dadswell Lori Davidson Pat Green Lynn Gresock Tricia Pellerin Robert Peltier Linda Rivard Joshua Berkow James David

Dated: December 23, 2019 21

1 Q. Please state the names, employers, business addresses, and the purpose of the

2 testimony of the individual members of the Panel.

3 A. Philip Mooney, Hecate Energy LLC (“Hecate”), 621 West Randolph Street, Chicago, IL

4 60661.

5 Q. Please summarize your credentials.

6 A. My position at Hecate is Vice President Engineering and Development. I have been

7 employed there since about October 2014. I have a B.S. in Mechanical Engineering and

8 a Master’s in Business Administration. I have approximately 30 years of experience,

9 primarily in the electric power sector, developing and implementing power generation

10 projects and associated facilities. I helped develop over 10,000 MW of fossil fueled and

11 renewable power generation projects in domestic and international markets, including the

12 New York market. I specialize in engineering, planning, licensing, and arranging and

13 administering project contracts for power infrastructure projects.

14 I have been with Hecate Energy for over 5 years providing technical support and

15 management leadership. I am responsible for supporting and leading various aspects of

16 Hecate’s power project development. I manage various engineering aspects of many

17 projects in Hecate’s portfolio, including early stage contract and permitting, and

18 negotiating and administering construction contracts. I help ensure that Hecate’s projects

19 are arranged and implemented according to the project goals and in compliance with

20 contractual and regulatory requirements. I am often involved in projects from early stage

21 development through completion and operation.

22 My CV is attached below.

1 22

1 Q. What is the purpose and scope of your testimony in this proceeding?

2 A. To sponsor certain portions of the Article 10 Application of Hecate Energy Greene 1

3 LLC, Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC (the “Co-

4 Applicants”).

5 Q. What portion(s) of the Application is your testimony sponsoring?

6 A. I am sponsoring the entire Application.

7 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

8 direction and supervision?

9 A. Yes.

10 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

11 publications, data, or documents produced by persons other than yourself or your

12 company? If so, please cite these sources.

13 A. References are provided in corresponding Exhibits.

14 Q. Will the next member of the Panel please introduce himself?

15 A. Gabriel Wapner, Hecate, 621 W Randolph Street, Chicago, IL 60661.

16 Q. Please summarize your credentials.

17 A. My position at Hecate is Director of Development. I have been employed there

18 approximately 6 years. I have a B.S. in Applied Economics and Management from

19 Cornell University and 11 years of energy industry experience. At Hecate, I oversee

20 ongoing project development and execution efforts, including site selection, permitting,

21 offtake agreement negotiation, subcontractor contracting, and technology selection.

22 My CV is attached below.

2 23

1 Q. What is the purpose and scope of your testimony in this proceeding?

2 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

3 Q. What portion(s) of the Application is your testimony sponsoring?

4 A. I am sponsoring the entire Application.

5 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

6 direction and supervision?

7 A. Yes.

8 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

9 publications, data, or documents produced by persons other than yourself or your

10 company? If so, please cite these sources.

11 A. References are provided in corresponding Exhibits.

12 Q. Will the next member of the Panel please introduce himself?

13 A. Matt Dadswell, Tetra Tech, Inc. (“Tetra Tech”), 19803 North Creek Parkway, Bothell,

14 WA 98011.

15 Q. Please summarize your credentials.

16 A. My position at Tetra Tech is Social Scientist/Economist. I have been employed there

17 approximately 22 years. I received a B.A. in Economics and Geography from

18 Portsmouth Polytechnic in England, a M.A. in Geography from the University of

19 Cincinnati, and completed 2 years of Ph.D. studies in Geography at the University of

20 Washington. I have more than 20 years of experience managing and conducting social

21 and economic studies and impact analyses for energy and natural resource management

22 projects throughout the United States, including renewable energy generation and

3 24

1 transmission lines. Prior to working with Tetra Tech, I was employed by another similar

2 firm for 4 years.

3 My current responsibilities with Tetra Tech involve managing and preparing

4 social and economic studies and impact analyses for energy and natural resource

5 management projects.

6 My CV is attached below.

7 Q. What is the purpose and scope of your testimony in this proceeding?

8 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

9 Q. What portion(s) of the Application is your testimony sponsoring?

10 A. Exhibit 27.

11 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

12 direction and supervision?

13 A. Yes.

14 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

15 publications, data, or documents produced by persons other than yourself or your

16 company? If so, please cite these sources.

17 A. References are provided in corresponding Exhibits.

18 Q. Will the next member of the Panel please introduce herself?

19 A. Lori S. Davidson, Tetra Tech, 1560 Broadway, Suite 1400, Denver, CO 80202.

20 Q. Please summarize your credentials.

21 A. My position at Tetra Tech is Environmental Planner/Visual Resource Specialist. I have

22 been employed there since May 2012. I have a Bachelor of Science degree in

23 Environmental Studies and Applications from Michigan State University and a Masters

4 25

1 in Landscape Architecture from the University of Michigan. My experience includes

2 environmental planning and landscape architecture with a focus on visual resource

3 inventory and analysis. Experience specifically related to visual resources includes

4 conducting visual resource inventories and impact analysis and preparing visual resource

5 studies in support of federal, state, and local compliance. I have experience in visual

6 impact assessment and analysis on both local and federal solar and wind facilities, linear

7 transmission projects, and oil and gas facilities throughout the United States. In 2012, I

8 completed the U.S. Bureau of Land Management’s Visual Resource Management

9 training course.

10 My current responsibilities include serving as visual resource specialist on several

11 energy related projects which include tasks such as desktop analysis, conducting visual

12 resource field reconnaissance, and preparing visual analysis in support of permitting

13 efforts. I also work with Tetra Tech’s GIS and visualization specialists in preparation of

14 viewshed analysis, photographic simulations, and figures and graphics to support visual

15 analyses.

16 My CV is attached below.

17 Q. What is the purpose and scope of your testimony in this proceeding?

18 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

19 Q. What portion(s) of the Application is your testimony sponsoring?

20 A. Exhibit 24, the accompanying Visual Impact Assessment Report, and applicable

21 Appendices.

22 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

23 direction and supervision?

5 26

1 A. Yes.

2 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

3 publications, data, or documents produced by persons other than yourself or your

4 company? If so, please cite these sources.

5 A. References are provided in the relevant Exhibit 24 and Visual Impact Assessment report.

6 In addition to the references noted above, my testimony also relies upon information

7 prepared by Mott MacDonald (Substation and Collector System design, Solar Array

8 General Arrangement design, and Landscape Plan).

9 Q. Will the next member of the Panel please introduce himself?

10 A. Pat Green, Tetra Tech, 301 Ellicott Street, Buffalo, NY 14203.

11 Q. Please summarize your credentials.

12 A. My position at Tetra Tech is Ecological Services Manager. I have been employed there

13 since June 2011. I have a bachelor’s degree from the State University of New York at

14 Morrisville. I am a retired wilderness guide (previously licensed in New York State) and

15 spent some time as a naturalist interpreter. My consulting experience includes wetland

16 delineation, habitat assessment, species specific surveys, threatened and endangered

17 species conservation and management plan development, wetland and waterbody

18 restoration assessments, regulatory agency coordination, large data management,

19 geospatial analysis and mapping, wetland and waterbody permitting, project

20 management, permit compliance management, and team management.

21 I am the Ecological Services Manager for most projects in our office. I have a

22 team of biologists I manage to complete the purely ecological components of projects,

23 primarily aquatic resource surveys, habitat assessments, and follow up reporting. I also

6 27

1 generally lead coordination efforts with state and federal regulatory agencies to identify

2 regulatory interests and obtain threatened and endangered species clearances for projects.

3 Any follow-up requirements for species-specific surveys and mitigation measures also

4 generally falls to me. I am responsible for many components of permit applications for

5 Clean Water Act impacts, and function as construction support for ongoing projects.

6 Much of my work focuses on coordinating with other teams (such as erosion and

7 sediment control design) and clients, as well as providing quality control for my team’s

8 projects.

9 My CV is attached below.

10 Q. What is the purpose and scope of your testimony in this proceeding?

11 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

12 Q. What portion(s) of the Application is your testimony sponsoring?

13 A. Exhibit 22 and Exhibit 23, and their associated Appendices.

14 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

15 direction and supervision?

16 A. Yes.

17 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

18 publications, data, or documents produced by persons other than yourself or your

19 company? If so, please cite these sources.

20 A. References are provided in corresponding Exhibits.

21 Q. Will the next member of the Panel please introduce herself?

22 A. Lynn Gresock, Tetra Tech, 3 Lan Drive, Suite 100, Westford, MA 01886.

23 Q. Please summarize your credentials.

7 28

1 A. I am a Vice President in Tetra Tech’s Energy Program. I have been employed there for

2 over 6 years. I was awarded a Bachelor of Science Degree in Environmental Design

3 from the University of Massachusetts in 1984. I have over 35 years of experience in

4 regulatory issues as they relate to environmental permitting and compliance for a wide

5 range of projects. Since June of 1984, when I started working for an environmental

6 consulting firm in Boston, I have been employed by various environmental consulting

7 firms similar to Tetra Tech, with the exception of 2 years when I worked directly for an

8 independent power producer based in Maryland known as U.S. Generating Company.

9 For much of my career, I have focused on providing consulting services for energy

10 projects. My experience includes obtaining environmental approvals for more than

11 30,000 MW of electric generation capacity. I have provided development permitting and

12 support for a wide range of generating facilities, including renewable energy facilities. I

13 have supported project development from early definition phases, through obtaining

14 licensing approvals, construction oversight, and operational compliance support.

15 In my current position, I provide project management and oversight for a wide

16 range of energy permitting, due diligence, and compliance projects, including for solar

17 energy facilities.

18 My CV is attached below.

19 Q. What is the purpose and scope of your testimony in this proceeding?

20 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

21 Q. What portion(s) of the Application is your testimony sponsoring?

22 A. I am sponsoring the entire Application.

1 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

2 direction and supervision?

3 A. Yes.

4 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

5 publications, data, or documents produced by persons other than yourself or your

6 company? If so, please cite these sources.

7 A. References are provided in corresponding Exhibits.

8 Q. Will the next member of the Panel please introduce herself?

9 A. Tricia Pellerin, Tetra Tech, 160 Federal Street, 3rd Floor, Boston, MA 02110.

10 Q. Please summarize your credentials.

11 A. My position at Tetra Tech is Senior Acoustic Engineer. I have been employed there for

12 approximately 12 years. I have a Bachelor of Engineering Science Degree and Master of

13 Engineering Science Degree in Chemical/Biochemical Engineering from The University

14 of Western Ontario. I have also completed postgraduate training for DataKustik’s

15 CadnaA acoustic modeling software package (basic and advanced), underwater acoustic

16 and signal processing offered by Penn State, and noise control for buildings,

17 manufacturing plants, equipment and products offered by Hoover & Keith. Since

18 graduating university, I have accumulated over 14 years of environmental consulting

19 experience focusing on the area of acoustics. I have been involved in the planning and

20 permitting of numerous small and large-scale environmental impact statements, acoustic

21 impact assessments, and air quality impact assessments. I have extensive experience in

22 assessing potential noise impacts, performing pre- and post-construction field studies,

23 conducting acoustic modeling analyses, and performing regulatory compliance

9 30

1 determinations for both conventional (transmission line, gas pipeline, peaking facilities,

2 LNG terminals, upgraders, etc.) and renewable energy projects (wind energy, solar)

3 throughout the United States, Canada and internationally. I have also been involved with

4 conducting underwater acoustic modeling and impacts assessments for offshore wind

5 energy projects and meteorological data collection towers with the purpose of assessing

6 potential impacts on sensitive marine species.

7 As a Senior Acoustic Engineer at Tetra Tech, my responsibilities include

8 providing technical expertise on the subject of acoustics and vibration, conducting field

9 investigation work, management of field teams, deployment of measurement equipment,

10 management of data acquisition systems, data analysis, and conducting a proficient level

11 of computer modeling applications and techniques. I have assisted clients with satisfying

12 their permitting needs involving the New York Public Service Commission, as well as

13 other various governing international, federal, state, and local noise and vibration

14 compliance requirements.

15 My CV is attached below.

16 Q. What is the purpose and scope of your testimony in this proceeding?

17 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

18 Q. What portion(s) of the Application is your testimony sponsoring?

19 A. Exhibit 19 and its Appendices.

20 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

21 direction and supervision?

22 A. Yes.

1 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

2 publications, data, or documents produced by persons other than yourself or your

3 company? If so, please cite these sources.

4 A. References are provided in corresponding Exhibits.

5 Q. Will the next member of the Panel please introduce himself?

6 A. Robert Peltier, Tetra Tech, 301 Ellicott Street, Buffalo, NY 14203.

7 Q. Please summarize your credentials.

8 A. My position at Tetra Tech is Cultural Resources Project Manager and Archaeological

9 Principal Investigator. I have been employed there approximately 7 years. I received a

10 B.A. in Anthropology/Archaeology from the State University of New York at Buffalo

11 (1997) and a M.A. in Historic Preservation from Goucher College (2005). I am a

12 Registered Professional Archaeologist (RPA) with over 23 years of experience in cultural

13 resources management. I have managed numerous Phase I through III reviews and

14 compliance/contracting archaeological projects for local, state, and federal agencies, as

15 well as industrial and commercial businesses. I have also served as Principal Investigator

16 for numerous historic resource studies, involving architectural and historic property

17 inventory evaluations, viewshed analysis, NRHP eligibility assessments, and

18 HABS/HAER recordation.

19 I serve as the Tetra Tech Buffalo Office’s cultural resources program manager

20 and principal investigator. My responsibilities include managing all facets of the cultural

21 resource permitting process, including managing a team of 12 full-time and part-time

22 staff, fiscal budgets, and overseeing quality control of all cultural resource reporting.

23 My CV is attached below.

1 Q. What is the purpose and scope of your testimony in this proceeding?

2 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

3 Q. What portion(s) of the Application is your testimony sponsoring?

4 A. Exhibit 20 and its Appendices.

5 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

6 direction and supervision?

7 A. Yes.

8 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

9 publications, data, or documents produced by persons other than yourself or your

10 company? If so, please cite these sources.

11 A. References are provided in corresponding Exhibits.

12 Q. Will the next member of the Panel please introduce herself?

13 A. Linda Rivard, Tetra Tech, 451 Presumpscot Street, Portland, ME 04103.

14 Q. Please summarize your credentials.

15 A. My position at Tetra Tech is Environmental Scientist and Planner. I have been employed

16 there since August 2007. I have a Bachelor of Science in Marine and Freshwater Biology

17 from the University of New Hampshire. I am an aquatic biologist with over 19 years of

18 experience in biological research, environmental permitting, and preparation of a variety

19 of environmental compliance documents. I have been directly involved with

20 management of several solar development projects located in New England, providing

21 permitting, planning, and overall project management support.

22 As an Environmental Scientist and Planner at Tetra Tech, I am responsible for

23 providing overall support and management of energy-related projects as they navigate the

12 33

1 local, state, and federal permitting process. I oversee numerous technical teams through

2 their completion of field surveys and desktop analyses, including senior level review of

3 technical documents to ensure quality and consistency is maintained across all

4 deliverables.

5 My CV is attached below.

6 Q. What is the purpose and scope of your testimony in this proceeding?

7 A. My role was to work with the subject matter experts on this panel and coordinate their

8 input for preparation of the Application.

9 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

10 publications, data, or documents produced by persons other than yourself or your

11 company? If so, please cite these sources.

12 A. References are provided in corresponding Exhibits.

13 Q. Will the next member of the Panel please introduce himself?

14 A. Joshua A. Berkow, Mott MacDonald, 438 Main Street, Suite 300, Buffalo, NY 14202.

15 Q. Please summarize your credentials.

16 A. My position at Mott MacDonald is Senior Engineer. I have been employed there since

17 October 2018. I have a B.S. and an M.S. in Electrical Engineering from the State

18 University of New York at Buffalo. I am a licensed electrical engineer in New York and

19 several other states. My experience includes project management, design management,

20 design engineering, and consulting for wind energy, solar energy, battery energy storage,

21 natural gas combined cycle, substation, HVDC, distribution line, and transmission line

22 projects. I have worked for independent power producers and consulting firms.

13 34

1 I am the lead engineer for multiple wind, solar, HVDC, and battery projects. I

2 coordinate efforts across engineering disciplines, while accomplishing tasks within my

3 own discipline. I also set standards and provide quality control oversight for junior

4 engineers.

5 My CV is attached below.

6 Q. What is the purpose and scope of your testimony in this proceeding?

7 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

8 Q. What portion(s) of the Application is your testimony sponsoring?

9 A. Exhibit 11 and its Appendices.

10 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

11 direction and supervision?

12 A. Yes.

13 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

14 publications, data, or documents produced by persons other than yourself or your

15 company? If so, please cite these sources.

16 A. My testimony relies upon information from the New York Independent System Operator,

17 Inc., Tetra Tech, TEC Land Surveying, PC, and Chint Power Systems.

18 Q. Will the next member of the Panel please introduce himself?

19 A. James David, PowerGEM LLC, 632 Plank Road #101, Clifton Park, NY 12065.

20 Q. Please summarize your credentials.

21 A. My position at PowerGEM LLC is Market Applications Product Manager. I have been

22 employed there since April 2007. I have a Bachelor of Science in Electrical Engineering

23 from Clarkson University and an M.B.A. from University at Albany. I have 26 years of

1 experience in the energy industry, including 6 years of experience at New York

2 Independent System Operator, Inc. (2001-2007) and prior experience at National

3 Grid/Niagara Mohawk.

4 I am responsible for leading market simulation and production cost simulation

5 projects for clients throughout the United States, primarily generation and transmission

6 developers seeking to understand future energy markets, project impacts, and risks. I also

7 provide Product Management for our PROBE LT market simulation software, ensuring

8 the software is continually updated to perform accurate production cost modeling.

9 My CV is attached below.

10 Q. What is the purpose and scope of your testimony in this proceeding?

11 A. To sponsor certain portions of the Co-Applicants’ Article 10 Application.

12 Q. What portion(s) of the Application is your testimony sponsoring?

13 A. Exhibit 8 and its Appendices.

14 Q. Were these Exhibits, Application sections, or studies prepared by you or under your

15 direction and supervision?

16 A. Yes.

17 Q. In your testimony, will you refer to, or otherwise rely upon, any studies,

18 publications, data, or documents produced by persons other than yourself or your

19 company? If so, please cite these sources.

20 A. References are provided in corresponding Exhibits.

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

REBUTTAL PANEL TESTIMONY ON BEHALF OF HECATE ENERGY GREENE 1 LLC, HECATE ENERGY GREENE 2 LLC, AND HECATE ENERGY GREENE COUNTY 3 LLC

Panel Witnesses:

Phillip Mooney Gabriel Wapner Jennifer Chester Patrick Green Sean Meegan Linda Rivard Joshua Berkow

Dated: January 15, 2020

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 37

1 INTRODUCTION

2 Q. Members of the Rebuttal Panel, please state your names, employers, business addresses,

3 and the purpose of your testimony for the Hecate Greene Rebuttal Panel.

4 A. Philip Mooney, Hecate Energy LLC, 621 West Randolph St., Chicago, IL 60661.

5 Q. Mr. Mooney, have you previously testified in this proceeding?

6 A. Yes, I participated on Hecate Greene’s panel sponsoring direct testimony that was

7 submitted as part of Hecate Greene’s Article 10 Application (“Application”) and

8 submitted my credentials therein.

9 Q. What is your role on the Rebuttal Panel?

10 A. I helped oversee the preparation of the Rebuttal Panel testimony and provide overall

11 recommendations herein.

12 Q. Will the next member of the Rebuttal Panel introduce himself.

13 A. Gabriel Wapner, Hecate Energy LLC, 621 West Randolph St., Chicago, IL 60661.

14 Q. Mr. Wapner, have you previously testified in this proceeding?

15 A. Yes, I participated on Hecate Greene’s panel sponsoring direct testimony that was

16 submitted as part of the Application and submitted my credentials therein.

17 Q. What is your role on the Rebuttal Panel?

18 A. I helped oversee the preparation of the Rebuttal Panel testimony and provide overall

19 recommendations herein.

20 Q. Will the next member of the Rebuttal Panel introduce herself.

21 A. Jennifer Chester, Tetra Tech, Inc. (“Tetra Tech”), 1560 Broadway, Denver, CO 80202.

22 Q. Ms. Chester, have you previously testified in this proceeding?

23 A. No.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 38

1 Q. Please summarize your credentials.

2 A. My position at Tetra Tech is a Senior Project Manager and GIS/Visual Discipline Lead. I

3 have been employed with Tetra Tech from November 2009 – September 2014 and since

4 January 2017. I have a Bachelor of Science in Environmental Science from Bowling

5 Green State University in Ohio. I am a Project Manager with over 20 years of experience

6 in environmental permitting and preparation of a variety of environmental compliance

7 documents. I have been directly involved with visual impact assessment of solar

8 development projects located in New York.

9 Q. What is your role on the Rebuttal Panel?

10 A. I will address the direct testimony of the Town of Coxsackie (“Town”), Village of

11 Coxsackie, and Village of Athens (collectively, the “Municipalities”) related to potential

12 visibility of the Facility, glare, and proposed vegetative screening.

13 Q. Will the next member of the Rebuttal Panel introduce himself.

14 A. Patrick Green, Tetra Tech, Inc. (“Tetra Tech”), 301 Ellicott Street, Buffalo NY, 14203.

15 Q. Mr. Green, have you previously testified in this proceeding?

16 A. Yes, I participated on Hecate Greene’s panel sponsoring direct testimony that was

17 submitted as part of the Application and submitted my credentials therein.

18 Q. What is your role on the Rebuttal Panel?

19 A. I will address the direct testimony of the New York State Department of Environmental

20 Conservation (“DEC”) regarding wetlands and grassland birds, and the direct testimony

21 of Scenic Hudson, Inc. and Greene Land Trust (“SH/GLT”) regarding the Greene County

22 Solar Facility (“Facility”) Preliminary Net Conservation Benefit Plan (see Case 17-F-

23 0619, Application of Hecate Energy Greene 1 LLC, Hecate Energy Green 2 LLC, and

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 39

1 Hecate Energy Greene County 3 LLC, Preliminary Net Conservation Benefit Plan (Sept.

2 2, 2020) (“Preliminary NCBP”).

3 Q. Will the next member of the Rebuttal Panel introduce himself.

4 A. Sean Meegan, 3136 South Winton Road, Rochester, New York, 14623.

5 Q. Mr. Meegan, have you previously testified in this proceeding?

6 A. No.

7 Q. Please summarize your credentials.

8 A. My position at Tetra Tech is Project Manager and Biologist. I have been employed with

9 Tetra Tech since December 2019. For the previous 20 plus years, I was employed in the

10 environmental consulting industry. I have a Bachelor of Science in Environmental and

11 Forest Biology from the State University of New York College of Environmental Science

12 and Forestry and a Masters of Science in Fish and Wildlife Resources from West Virginia

13 University. I am an environmental regulatory specialist with over 23 years of experience

14 in environmental permitting, and preparation of a variety of environmental compliance

15 documents. I have been directly involved with management of several solar and wind

16 development projects located in New York, providing field surveys, permitting, planning,

17 and overall project management support.

18 As a Project Manager and Biologist at Tetra Tech, I am responsible for the

19 development, implementation, and management of the environmental permitting process

20 for energy and infrastructure development projects. I oversee numerous technical teams

21 through their completion of field surveys and desktop analyses, including senior level

22 review of technical documents to ensure quality and consistency is maintained across all

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 40

1 deliverables. In addition, I maintain communication lines with the Project Team and

2 partners/subcontractors, and regulators throughout the permitting life cycle.

3 Q. What is your role on the Rebuttal Panel?

4 A. I have coordinated the preparation of the Rebuttal Panel testimony, especially in the

5 environmental areas.

6 Q. Will the next member of the Rebuttal Panel introduce herself?

7 A. Linda Rivard, Tetra Tech, 451 Presumpscot Street, Portland, ME 04103.

8 Q. Have you previously testified in this proceeding?

9 A. No.

10 Q. Please summarize your credentials.

11 A. My position at Tetra Tech is Environmental Scientist and Planner. I have been employed

12 there since August 2007. I have a Bachelor of Science in Marine and Freshwater Biology

13 from the University of New Hampshire. I am an aquatic biologist with over 19 years of

14 experience in biological research, environmental permitting, and preparation of a variety

15 of environmental compliance documents. I have been directly involved with

16 management of several solar development projects located in New England, providing

17 permitting, planning, and overall project management support.

18 As an Environmental Scientist and Planner at Tetra Tech, I am responsible for

19 providing overall support and management of energy-related projects as they navigate the

20 local, state, and federal permitting process. I oversee numerous technical teams through

21 their completion of field surveys and desktop analyses, including senior level review of

22 technical documents to ensure quality and consistency is maintained across all

23 deliverables.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 41

1 Q. What is your role on the Rebuttal Panel?

2 A. I have helped coordinate the preparation of the Rebuttal Panel testimony.

3 Q. Is the Rebuttal Panel sponsoring any exhibits to support your testimony?

4 A. Yes, we are sponsoring the following exhibits:

5 • HGR-1: Alternative Project Layout;

6 • HGR-2: DEC Follow-up Letter (July, 26, 2019);

7 • HGR-3: DEC Site Visit Data;

8 • HGR-4: Hamlet-on-the-Hudson Wetland Report and Addenda;

9 • HGR-5: DEC Request for Wetland Determination or Delineation Form;

10 • HGR-6: Historic Aerials;

11 • HGR-7: Crop Records;

12 • HGR-8: Wagner and Nelson 2014;

13 • HGR-9: Conservation Easement Area (Jan. 15, 2021);

14 • HGR-10: Sarah Trafton, Solar Project Donates UTV to Fire Co.,

15 HudsonValley360 (Oct. 27, 2020);

16 • HGR-11: Green Solar Facility March 20, 2020 Meeting Follow-up (June 8,

17 2020); and

18 • HGR-12: Green County Solar Facility Response to Sleepy Hollow Lake

19 Association of Property Owners.

20 Q. Please summarize the overall scope of the Rebuttal Panel’s testimony.

21 A. We are responding to the direct testimony filed by the parties on December 18 and 21,

22 2020. We recommend that the New York State Board on Electric Generation Siting and

23 the Environment (“Siting Board”) adopt the Proposed Certificate Conditions and its

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 42

1 appendices, the Proposed Guidance for the Development of Site Engineering and

2 Environmental Plans (“SEEP Guide”) and Proposed Noise Complaint Resolution

3 Protocol (collectively, the “Settlement Proposal”), filed on December 16, 2020. The New

4 York State Department of Public Service (“DPS”) has agreed to the Settlement Proposal

5 in its entirety without exception (DPS Staff Settlement Panel Direct Testimony p. 27, ll.

6 10–12), and DEC has agreed to it except for three Certificate Conditions (Denoncour &

7 Palumbo Direct Testimony p. 29, ll. 7–11; Exhibit (“Ex.”) DEC-DP-4). We address

8 DEC’s assertions herein. In addition, the New York State Department of Agriculture and

9 Markets expressed agreement with the Proposed Certificate Conditions and SEEP Guide

10 (Direct Testimony of Jason Mulford p. 26, ll. 3–11), although it is necessary to address

11 certain aspects of its direct testimony. Lastly, our testimony will refute certain

12 recommendations made by the Municipalities and SH/GLT, and clarify where Hecate

13 Greene and the Sleepy Hollow Lake Association of Property Owners (“Sleepy Hollow”)

14 appear to agree and disagree.

15 Direct Testimony of Georgette Walters and Matthew Walter on Behalf of DEC

16 Q. Please summarize DEC’s recommendations for the Facility.

17 A. DEC asserts that it is unclear, based on the current record in this proceeding, whether

18 Hecate Greene has demonstrated that the Facility’s impacts to State-regulated wetlands

19 and their associated 100-foot adjacent areas have been avoided and/or minimized as

20 required by Article 24 and 6 NYCRR Part 663 (p. 15, ll. 21–24). In particular, DEC

21 asserts that Hecate Greene has not provided any Facility layout updates that minimize

22 impacts to HN-118, a State-mapped Freshwater Wetland (“FWW”) that occurs in the

23 Facility Area (p. 16, ll. 15–16). DEC then suggests that impacts to HN-118 might be

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 43

1 further avoided and/or minimized (p. 16, l. 24; p. 17, ll. 1–4). According to DEC, it

2 conducted a spatial review of the current Facility layout and believes that there is

3 sufficient land within the Facility Area to reconfigure the layout to further avoid and

4 minimize impacts to FWWs (p. 16, l. 24; p. 17, ll. 1–4). DEC provided a map that points

5 out areas in which it believes that Facility infrastructure could be relocated (Corrected

6 Ex. NYSDEC-WW-8).

7 Q. Please summarize how Hecate Greene will address DEC’s recommendations.

8 A. As detailed below, Hecate Greene does not agree with the boundaries of the FWWs that

9 DEC asserts are State-regulated. Using the proper delineation methods, Hecate Greene

10 conducted delineations that represent current site conditions, whereas the State-mapped

11 boundaries used by DEC are based on delineations conducted in 2004–2006. Along with

12 being outdated, the 2004–2006 delineations were performed after two years of the

13 Facility Area being left fallow. These were unusual circumstances for the Facility Area

14 because it was otherwise farmed since at least 1959. Due to the agricultural nature of the

15 Facility Area, the State-mapped wetlands are unlikely to provide any significant functions

16 that would normally be expected of State-mapped wetlands. In addition, the Facility will

17 not result in net negative impacts to the State-mapped wetlands. Rather, the avoidance,

18 minimization, restoration, and mitigation efforts to which Hecate Greene committed in

19 the Proposed Certificate Conditions and its Application materials will allow natural

20 conditions to return to the Facility Area, which is a net positive to the areas that are State-

21 mapped wetlands. Moreover, any potential losses of wetland functions or values have

22 been offset by Hecate Greene’s proposed restoration and mitigation measures.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 44

1 Ultimately, Hecate Greene demonstrates below that impacts to FWWs have

2 indeed been avoided and/or minimized as required. Nevertheless, in the interest of

3 compromise, Hecate Greene did review the potential to reconfigure the Facility’s layout

4 to remove infrastructure from State-mapped HN-118, and presents the results of that

5 exercise in Exhibit HGR-1. This Alternative Layout would remove approximately 30

6 acres of panels and infrastructure from HN-118. But, it would result in increased impacts

7 to other wetlands delineated by Hecate Greene. All impacts potentially resulting from the

8 Alternative Layout are under development and would be addressed in Compliance Filings

9 and Hecate Greene’s Clean Water Act Section 404 permit application.

10 Q. Please address DEC’s claim that Hecate Greene did not follow the proper procedures set

11 forth in the New York State Freshwater Wetlands Delineation Manual (p. 8, ll. 15–23).

12 A. The Application states that the “Routine Delineation Procedure” from the New York State

13 Freshwater Wetlands Delineation Manual (N.Y.S. Dep’t of Envtl. Conserv. (July 1995),

14 https://www.dec.ny.gov/docs/wildlife_pdf/wdelman.pdf (“FWW Manual”)) was

15 considered during delineation efforts (Application (“App.”) Ex. 22 at 32). Methods for

16 the initial field investigations of the entire Facility Area were described as ‘routine’ as

17 these are the default protocols that are used in most situations. While it was not noted

18 explicitly in the Application, the wetland delineation methodology also included

19 disturbed area protocols.

20 During the compilation of the Wetland Delineation Report (“Interim Report”)),

21 the methods section text did not specifically address the “Disturbed and Problematic Area

22 Wetlands” section of the FWW Manual. This methods text was carried through the

23 following documentation, including the 2019 Aquatic Resources Report provided in in

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 45

1 Appendix 22-G of the Application (“Final Report”) and various application materials at

2 submission, including Exhibit 22 and the Supplemental Aquatic Resources Report

3 provided in Appendix 22-H of the Application (“Supplemental Report”). Nevertheless,

4 the methods described in the Disturbed and Problematic Area Wetlands section of the

5 FWW Manual were used, and evidence of this is described below.

6 Hecate Greene also used the correct federal wetland delineation methodology for

7 disturbed areas. As explained in the Application, the Corps of Engineers Wetlands

8 Delineation Manual (U.S. Army Corps of Engineers (Jan. 1987),

9 https://www.lrh.usace.army.mil/Portals/38/docs/USACE%2087%20Wetland%20Delineat

10 ion%20Manual.pdf (“Corps Manual”), together with region-specific methods and

11 guidelines provided in the Regional Supplement to the Corps of Engineers Wetland

12 Delineation Manual: Northcentral and Northeast Region, Version 2.0 (U.S. Army Corps

13 of Engineers (Jan. 2012),

14 https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Website%20Organization/N

15 orthcentral%20and%20Northeast%20Regional%20Supplement.pdf (“Regional

16 Supplement”)) were used (App. Ex. 22 at 31–32).

17 The Regional Supplement was used, which includes specific guidelines for

18 identifying and delineating wetlands in agricultural fields (Regional Supplement, Section

19 5 (titled “Difficult Wetland Situations in the Northcentral and Northeast Region”)). In

20 recently plowed areas and during subsequent detailed investigations that were conducted

21 within certain agricultural areas (specifically row crop fields), delineators employed

22 disturbed area protocols to ascertain the actual wetland boundary where one or more of

23 the three typical indicators were absent (most often vegetation). The interim report was

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 46

1 submitted to the U.S. Army Corps of Engineers (“USACE”) and DEC to schedule a site

2 visit.

3 Q. Did DEC bring the lack of reference to the Delineations in Disturbed Areas section of the

4 FWW Manual to Hecate Greene’s attention during discussions of the boundaries of State-

5 regulated wetlands or submit an interrogatory asking why the Application did not

6 reference it?

7 A. No.

8 Q. Please address DEC’s claim that Hecate Greene’s field staff stated they did not look for

9 wetlands in agricultural fields (p. 16, ll. 2–6).

10 A. There was likely a miscommunication between the Hecate Greene’s field staff and DEC

11 during the October 2, 2018 field visit. Wetlands were delineated in agricultural fields at

12 the time of the initial report, which preceded the field visit. The initial report contains

13 discussion, photos, figures, and data forms that show delineated wetlands within active

14 agricultural areas (see also, e.g., App. Ex. 22 at 33, tbl.22-8 (describing small emergent

15 wetlands in agricultural fields)).

16 Q. Should the lack of reference to the “Delineations in Disturbed Areas” section of the

17 FWW Manual prevent DEC from assuming that the correct delineation methods were

18 used at the Facility?

19 A. Not in the opinion of Hecate Greene. While that section of the FWW Manual was not

20 specifically mentioned in narrative form, the wetland delineation documentation

21 materials (primarily mapping, photos, and data forms) submitted as part of the

22 Application include references and data that clearly indicate use of the appropriate

23 alternate protocols, such as:

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 47

1 • Final Report:

2 o Table 2, “Wetlands Identified Within the Survey Area” has a

3 description for each delineated wetland which indicates that many

4 are within agricultural fields.

5 o Data forms are clearly marked that normal conditions are not

6 present, and that one or more of soils, hydrology, or hydric soils

7 were significantly disturbed in many sample points.

8 o Wetland photographs clearly show wetland areas well within

9 cropland with little or no vegetation.

10 • Supplemental Report:

11 o Section 3.1 specifically states “eight new wetlands [were

12 identified], primarily in hay and soybean (Glycine max) fields”.

13 o Data forms provided clearly show that delineators did not rely on

14 the presence of all three wetland indicators to confirm the presence

15 of wetlands (as required in non-disturbed area methods)

16 • Exhibit 22(j) in the Application:

17 o Summaries in Table 22-8 include evaluation of wetlands being

18 delineated in agricultural fields that do not meet criteria for all

19 three wetland indicators, primarily vegetation (App. Ex. 22 at 33,

20 tbl.22-8).

21 o Detail within 22(j)(6), (7), and (8) very clearly discuss wetlands

22 delineated in agricultural fields with little or no vegetation (App.

23 Ex. 22 at 33–38).

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 48

1 Additionally, DEC completed a wetland boundary verification in October 2018

2 where it requested additional information and investigations at eight areas within the

3 Facility Area. Tetra Tech investigated each of these areas and submitted a response

4 document to DEC with clear and detailed descriptions of the findings in those areas that

5 clearly demonstrated evaluation of wetlands in disturbed areas. A copy of the response

6 letter Hecate Greene submitted to DEC is provided in Exhibit HGR-2.

7 Q. What are the federal delineation methods in disturbed areas?

8 A. For federal methods, the Corps Manual states that where vegetation has been altered as a

9 result of disturbance, areas may fail to meet diagnostic criteria for a wetland, and in these

10 cases, an alternative method must be used for delineation. Additionally, the Regional

11 Supplement has specific guidelines for identifying and delineating wetlands in

12 agricultural fields (Regional Supplement, Section 5). The intent of this section is to

13 determine the condition of the site under normal circumstances, using best professional

14 judgement to infer the native vegetation communities normally present at the site using

15 several methods, including aerial or historical photography, on-site inspection of

16 volunteer species, remnant wetland plants and detritus, observations of vegetation

17 communities in adjacent undisturbed reference areas, soil reports and maps from national

18 databases, and even personal testimony of landowners or property managers as to the

19 previous conditions at the site (see Regional Supplement).

20 If the previous vegetation community present at a site prior to alteration cannot be

21 determined using these sources, then “the determination must be based on the other two

22 parameters” (Corps Manual at 76). The Regional Supplement states that “[i]f the

23 unmanaged vegetation condition cannot be determined, make the wetland determination

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 49

1 based on indicators of hydric soil and wetland hydrology” (Regional Supplement at 125).

2 Therefore, under conditions where natural vegetation communities cannot be determined,

3 it is acceptable to use two or fewer positive criteria to identify presence of a wetland if a

4 disturbed site was under normal circumstances.

5 Agricultural areas where vegetation was absent or significantly disturbed due to

6 tilling and/or seeding were delineated using soil and hydrology observations recorded in

7 the field, plus available proxy data (volunteer species, aerial imagery, adjacent reference

8 sites, etc.) to infer vegetation community when available. When no vegetation

9 community information was available, wetlands were delineated according to hydrology

10 and soils characteristics alone, consistent with USACE protocols for atypical situations.

11 The reported wetland boundaries, therefore, reflect areas that had wetland hydrology and

12 hydric soil characteristics at the time of survey, and either:

13 1. Wetland vegetation present and that passed one of the USACE criteria (e.g.,

14 Dominance Test, Prevalence Test), or

15 2. Did not have wetland vegetation present, for which that criterion was

16 disregarded.

17 Q. What are the state delineation methods in disturbed areas?

18 A. In disturbed areas such as agricultural fields, the FWW Manual states that the goal is to

19 determine if the area meets the “definition of a wetland before alteration” (FWW Manual

20 at 23). Each of the three criteria (hydrology, vegetation, and soils) are considered

21 separately. The FWW Manual states that if only vegetation appears to be disturbed, a

22 determination should be made about that criteria using the outlined procedures, at which

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 50

1 point one can return to the routine wetland delineation method and proceed from there

2 (id. at 23–24).

3 In cases when hydrophytic vegetation is absent due to disturbance, it is necessary

4 to determine whether it existed before alteration (id. at 25). Background information

5 including aerial photos, New York State Freshwater Wetlands (“FWWs”) maps, NWI

6 maps, soil surveys, hydrologic data, permit records, and previous site inspection reports

7 are permissible for this purpose, as is personal testimony from a landowner or other

8 knowledgeable person. The FWW Manual describes the sequence of steps to be taken in

9 the field to identify disturbed wetlands. After determining whether vegetation, soils, or

10 hydrology have been disturbed at the site, the observed disturbance must be characterized

11 and defined, and reference sites evaluated, especially for hydric vegetation. Following

12 this evaluation, the FWW Manual states “[i]f indicators of hydrophytic vegetation are

13 lacking or insufficient at the disturbed site, but the reference site or other evidence

14 indicates that a wetland might have existed at the disturbed site, then proceed to Step 3

15 and/or Step 4 to investigate the presence of hydric soils and/or hydrologic indicators . . .

16 [i]f indicators and/or evidence of hydrophytic vegetation are found, the hydrophytic

17 vegetation criterion has been met and the area should be considered wetland” (id.).

18 In agricultural areas, soils are often disturbed through frequent mixing down to

19 the plowline. The FWW Manual outlines the procedures for identifying hydric soils in

20 disturbed areas (id. at 10–13). Primarily, the type of alteration must be examined and

21 described, including plowing of subsurface soil horizons and removal of surface layers.

22 Next, the soils at a reference site, or soils that were not disturbed are investigated and

23 characterized. For plowed soils, hydric soil characteristics should be evaluated

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 51

1 immediately below the depth of the disturbance. The available data must be used to

2 determine whether hydric soil characteristics were present prior to alteration.

3 The FWW Manual states that “[w]etland delineators need not become slaves to

4 the Manual. However, to depart from methods outlined in this Manual is to enter the

5 realm of ‘Best Professional Judgement’ and the reasons for doing so must be well

6 documented” (id. at 2).

7 All wetlands at the Facility where hydrophytic vegetation were lacking were

8 disturbed due to routine plowing, tilling and/or seeding associated with typical

9 agricultural management activities. Although the FWW Manual specifically describes

10 using reference sites for wetlands suspected of being filled (id. at 24), there is no

11 scientific reason why this evaluation methodology would not also apply to the plowed

12 soils within the Facility. Therefore, using best professional judgement, reference sites

13 such as undisturbed areas at the margins of agricultural fields contiguous with disturbed

14 areas were used to identify the plant species and communities likely to exist in disturbed

15 area, absent of disturbance. In addition, soils in plowed areas were also disturbed down

16 to a significant depth below the plowline. Delineators followed the steps outlined in the

17 FWW Manual, documented the depth of disturbance and investigated the soil layers

18 immediately below that and within wetland delineation boundaries. Soils showed

19 evidence of hydric soil characteristics below the plowline. There were no cases when

20 wetland hydrology existed at the reference site but not in the disturbed site, and therefore

21 that step of the FWW Manual was not used. In fact, wetlands in disturbed agricultural

22 fields were identified primarily by the presence of wetland hydrology, at least at first.

23 Upon finding an area where wetland hydrology indicators were present, delineators began

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 52

1 the protocols described above to investigate the presence (or expected prior presence) of

2 hydrophytic vegetation and/or hydric soils, and wetlands were delineated on those bases.

3 Q. In your professional opinion, are there any significant difference between the federal and

4 state methods?

5 A. They are not identical, but the methodology for delineation of disturbed areas in the state

6 and federal methods are very similar. Both methods require that each disturbed wetland

7 criterion must be evaluated separately, and the best available data is used to support the

8 informed assessment of site conditions, heavily leaning on the best professional

9 judgement of the delineator.

10 Q. Should the differences between the federal and State delineation methods result in

11 different boundaries at the Facility Area?

12 A. It is important to note that USACE and DEC have separate jurisdiction, and the methods

13 determining the extents of the wetlands regulated by each agency are similar, but there

14 are differences. USACE routinely has jurisdiction over substantively more wetland area

15 than DEC, because DEC typically only regulates wetlands greater than 12.4 acres and

16 larger, pursuant to Environmental Conservation Law Article 24. So, at the most basic

17 level, a project site in New York State almost always has much more wetland acreage

18 which is federally regulated than state regulated. Additionally, while DEC has

19 approximated the limits of State-regulated FWWs through mapping, the boundaries of

20 these FWWs are refined based upon a field delineation. Beyond that, there is also some

21 subjectivity involved when determining appropriate delineated boundaries, meaning

22 personal interpretation of the criteria will vary to some degree—even between different

23 reviewers in the same agency.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 53

1 In a disturbed area, both the state and federal approaches emphasize the

2 importance of using available data (hydrology and/or soils) to delineate the boundaries of

3 the wetland under normal circumstances. In areas where there is only disturbance to one

4 wetland criterion, there could be a significant difference in wetland sizes due to the FWW

5 Manual’s focus on hydric vegetation, which can grow in areas lacking hydric soils or

6 hydrology. However, in agricultural fields like the Facility with disturbance to all three

7 criteria, there is no significant difference in the methods that would suggest the delineated

8 wetland boundaries would be different using either the FWW Manual or the Corps

9 Manual and Regional Supplement in the vast majority of cases.

10 Q. What was the result of DEC’s second site visit in May 2020?

11 A. After the Final Report was submitted, DEC returned to the Facility Area for a site visit to

12 verify the boundaries of the wetlands delineated in the field. It was concerned that there

13 was still a significant difference between the submitted wetland boundaries delineated by

14 Hecate Greene and the mapped boundary of FWWs HN-118 and HN-119. DEC recorded

15 soils data at eight locations, seven of which were within the extents of the promulgated

16 boundaries of FWWs HN-118 and HN-119 (but outside the limits of the wetlands

17 delineated for the Facility), and one just outside the promulgated boundary. Five of the

18 eight sampling locations showed non-hydric soils. Hydrology was not evident at any of

19 the locations and the disturbed conditions of the fields did not show signs of hydric

20 vegetation, including stunted crops, or volunteer hydric vegetation. Data forms and maps

21 showing the locations of the soil tests and data recorded are provided in Exhibit HGR-3.

22 Since there were no observable signs of any of the three criteria in five out of the

23 eight total locations, and only weak hydric soils indicators present in the other three

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 54

1 sampling locations, no changes were made to the submitted delineation. Between the

2 results of this site visit and USACE’s July 2019 concurrence with the wetlands during its

3 site visit, Hecate Greene made no further changes to the wetland boundaries or extents

4 previously reported in the Supplemental Report.

5 Q. Was the meeting with DEC typical of an agency wetland verification meeting?

6 A. No. In a typical wetland boundary verification site visit, agency staff discuss the

7 delineated boundaries with Hecate Greene. They may question field staff about wetland

8 discrepancies or ask for justification for how a wetland boundary was located, and then

9 discuss differences of professional opinion in the field. The site visit in May 2020 was

10 attended by two DEC biologists. One, Ms. Georgette Walters, has testified in this case

11 on behalf of DEC. Two Tetra Tech biologists were also present—a project manager with

12 a biology background and a lead wetland delineator who had more than five years of

13 wetland delineation experience throughout the United States. Throughout the entire visit,

14 DEC neither indicated any concerns regarding the delineation boundaries Hecate Greene

15 had submitted nor questioned the field staff on why areas were mapped as upland or

16 wetland. DEC staff collected data (primarily the eight soil samples previously discussed

17 and shown in HGR-3) and departed without any discussion of disagreements with Hecate

18 Greene’s delineation. Since the data collected did not significantly support the mapped

19 boundaries of FWWs HN-118 and HN-119, Hecate Greene assumed that no changes to

20 the submitted delineation boundaries would be required.

21 Q. Please discuss the wetlands DEC has determined qualify for Article 24 protections.

22 A. Briefly, DEC did alert Hecate Greene to the presence of FWWs HN-118 and HN-119

23 within the Facility Area, that was never in question. However, DEC never hinted that the

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 55

1 regulatory limits could include significant amounts of upland habitat until the

2 Jurisdictional Determination was received on September 11, 2020. The Jurisdictional

3 Determination letter is dated September 2, 2020 and was provided to Hecate Greene on

4 September 11, 2020 (Ex. NYSDEC-WW-3). The Jurisdictional Determination

5 specifically mentions four delineated wetlands by the identification code provided by the

6 wetland delineation conducted by Hecate Greene (wetlands W-1, W-1.1, W-39, and

7 W101). There is no indication of discrepancies in Hecate Greene’s delineated wetland

8 boundaries or that DEC considers the mapped boundaries of FWWs HN-118 and HN-119

9 to be the extents of Article 24 regulation. After coordination between Hecate Greene and

10 DEC counsel, DEC provided a figure on September 21, 2020 showing the regulated areas

11 and delineation limits which showed the differences between the letter and DEC’s

12 testimony (Ex. NYSDEC-WW-4).

13 Additionally, DEC’s testimony has inconsistencies regarding the Jurisdictional

14 Determination letter. The date of the letter is reported as September 11 in testimony (p.

15 14, l. 15), however is dated in attachment NYSDEC-WW-3 as September 2. The

16 Jurisdictional Determination letter specifically addresses wetlands W-1, W-1.1, W-39 as

17 part of FWW HN-118, and W-101 as part of FWW HN-118, but DEC’s testimony (p. 14,

18 l. 9–12) mentions three additional wetlands delineated by Hecate Greene as being parts of

19 FWW HN-118: wetlands W-1.1, W-7a, and W-8a.

20 Q. Do you have any comments on the previous wetland delineation or the promulgation of

21 FWWs HN-118 and HN-119?

22 A. Hecate Greene reviewed the delineation report by the consultant who performed the

23 2004–2006 delineations for the Hamlet-on-the-Hudson (“HotH”) project, which are the

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 56

1 basis for DEC’s FWW map promulgations. One of the supplements to the HotH report

2 was provided in DEC’s testimony within attachment NYSDEC-WW-6. The HotH

3 delineation report and four addenda are attached in Exhibit HGR-4. Unfortunately,

4 Hecate Greene was unable to uncover any of the supporting mapping for the HotH

5 reports. As for methodology used during the delineation, the HotH report states that

6 wetlands were delineated “using the three-parameter approach as described in the Corps

7 Manual,” with no mention of the FWW Manual. As shown in the HotH reports and

8 coordination documents, all verification regarding the boundaries of the delineation was

9 coordinated through USACE.

10 Although this is a New York State matter isolated to the delineations according to

11 the FWW Manual, it is worth noting that DEC accepted the wetland boundaries from the

12 HotH delineation to promulgate despite the following:

13 • USACE approval of the wetland boundary was appropriate for the

14 boundary of the promulgated FWW boundary;

15 • USACE delineation methodology was used, not FWW Manual guidance;

16 and

17 • At the time of the 2011 site visit and 2014 promulgation, the delineation

18 was greater than five years old, old enough that it would no longer have

19 USACE approval, and the federal methods used to identify wetlands were

20 expanded to include the current version of the Regional Supplement,

21 which changes the methodology in which a wetland is identified.

22 On page 7 of their testimony, DEC provides background information on how

23 State-mapped FWW boundaries for the regulatory FWW maps based on 1970’s

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 57

1 orthoimagery and digitized “approximate” extents of wetlands. However, none of that

2 background information applies to this case because these FWWs were not mapped prior

3 to the 2014 promulgation. In short, the boundaries of FWWs HN-118 and HN-119 were

4 not mapped through interpretation of 1970’s orthoimagery, but based on the detailed, on-

5 site wetland delineation conducted for the HotH project from April 2004 through mid-

6 2006 and an additional on-site review by DEC. Supporting information is within the Staff

7 Findings and Recommendation document dated April 2, 2014 (provided within DEC’s

8 testimony as attachment DEC-WW-7), including:

9 • Neither FWWs HN-118 and HN-119 were previously mapped

10 o DEC-WW-7 states “[DEC] staff first received information about

11 the presence of [FWWs HN-118 and HN-119] when information.

12 concerning the proposed Hamlet on the Hudson housing

13 development and golf course was submitted . . . in 2005 for a

14 general environmental review”.

15 o DEC-WW-7 states both FWWs HN-118 and HN-119 are “. . .

16 proposed to be added as a new wetland to Map 11 in the Town of

17 Coxsackie”.

18 • The area delineated by consultants for the HotH project and received in-

19 field verification of the boundaries with DEC covers the entirety of the

20 Facility Area.

21 o DEC-WW-7 states both FWWs HN-118 and HN-119 “Consultants

22 had delineated the wetlands…and [their] accuracy verified in the

23 field by [DEC] staff on April 29, 2005”. An additional field visit

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 58

1 on November 4, 2011 was used for the remaining extents of FWW

2 HN-118 proposed to be added in this map amendment.

3 o DEC-WW-7 states this includes “the area south and east of Farm

4 to Market Road between [sic] Stacey Lane and the CSX railroad”

5 for FWW HN-118.

6 o DEC-WW-7 states this includes “the proposed wetland addition

7 south of Farm to Market Road and west of Johnny Cake Lane” for

8 FWW HN-119.

9 • Before Hecate Greene’s delineation, FWWs HN-118 and HN-119 were

10 last inspected by wetland professionals in 2006, and were last reviewed by

11 DEC in 2005.

12 o There was more than one decade between the HotH delineation

13 concluding and the initiation of Hecate Greene’s delineation effort.

14 o This was eight years before the boundaries of these features were

15 promulgated to the revised FWW maps in 2014.

16 Q. Please address DEC’s assertion that discrepancies between Hecate Greene’s delineations

17 and the State-mapped wetland based on the HotH delineation are due to the delineation

18 methods used by Hecate Greene.

19 A. As clarified earlier, Hecate Greene did use delineation methods for disturbed areas where

20 one or more wetland indicators were absent. Discrepancies between the boundaries

21 delineated by Hecate Greene and those delineated in 2004-2006 (which served as the

22 basis for DEC’s boundaries of FWW HN-118 and HN-119) are most likely the result of

23 land use that have occurred in the Facility Area in the intervening 15 years, specifically

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 59

1 agriculture. Even though they are exempt activities according to both Section 404 of the

2 Clean Water Act and Article 24, agricultural activities such as plowing, disking,

3 fertilizing, application of biocides, and planting crops can impact wetland hydrology,

4 soils, and plant communities, resulting in changes to the wetland boundaries over time.

5 Furthermore, development activities upgradient of this area that has occurred over

6 the past decade may have altered the hydrology of the wetlands. DEC’s own soils data

7 collected during the May 2020 site visit show that several areas within the boundary of

8 the State-mapped wetland did not meet the criterion to be considered hydric soils, and

9 those that did had weak indicators and no supplemental evidence for the existence of

10 hydrology and hydric vegetation at these locations. This suggests that the differences in

11 the boundary between the two delineations are the result of actual changes in on-the-

12 ground and not the result of delineation methodology.

13 Additionally, while DEC claims that Hecate Greene’s wetland delineation

14 methodology was incorrect and does not reflect the true extents of mapped FWWs HN-

15 118 and HN-119, DEC simultaneously expanded the State jurisdictional wetlands using

16 boundaries provided by Hecate Greene’s delineation. DEC used Hecate Greene’s

17 delineations to add to the extent of the mapped boundaries (and therefore regulated area)

18 of FWWs HN-118 and HN-119 by approximately 16.6 acres, regardless if the boundaries

19 of the wetlands presented in the Hecate Greene’s delineation were within disturbed areas

20 (Ex. DEC-WW-04).

21 Q. Do wetland boundaries change over time?

22 A. Yes, seasonal, periodic, and annual, changes happen consistently, especially in response

23 to significant development and permanent disturbances. For this reason, USACE only

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 60

1 issues preliminary or approved jurisdictional determinations for five-year periods,

2 meaning the validity of the delineation expires after 5 years, and a new delineation is

3 required to re-issue a valid jurisdiction determination. DEC’s Freshwater Wetlands

4 Program webpage also specifically states that “[w]etlands are a changing resource”

5 (Freshwater Wetlands Program, DEC, https://www.dec.ny.gov/lands/4937.html (last

6 visited Jan. 15, 2021).

7 Furthermore, DEC’s Request for Wetland Determination or Delineation form

8 (Exhibit HGR-5) notes specifically that agricultural activities and changes to flow

9 patterns resulting from development can result in changes to the boundaries of wetlands.

10 The following is an excerpt from this form, with emphasis added:

11 [DEC] has mapped the approximate boundaries of all known 12 freshwater wetlands in the state that are 12.4 acres in size or larger. 13 In some cases these maps include smaller wetlands of unusual local 14 importance. These maps are used to provide guidance as to the 15 potential presence of freshwater wetlands on particular properties 16 and they show the approximate boundary at the time the maps 17 were made, which in some cases, can be more than 15 years ago. 18 The actual wetland boundary may now be different due to changes 19 in the landscape caused by agricultural uses, ecological 20 succession, new water drainage patterns caused by recent 21 commercial/residential development, beaver activity, mapping 22 inaccuracies and deviations produced by different map scales. 23 Q. How long has the Facility Area been disturbed by agricultural practices?

24 A. DEC suggests that the discrepancies between Hecate Greene’s delineations and the

25 mapped boundaries of FWWs HN-118 and HN-119 are due to the use of the “Routine

26 Delineation Procedure” in “areas that have been disturbed by agriculture since 2011 . . . ”

27 (p. 8, l. 24; p. 9, ll. 1–6). A review of available data show that the entire Facility Area,

28 including areas where there are discrepancies between Hecate Greene’s delineation and

29 the HotH delineation, has been actively farmed for almost two decades before Article 24

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 61

1 was enacted in 1975. Historical aerial photographs going back to 1959 (Ex. HGR-6)

2 clearly show that the entire Facility Area has been actively and regularly farmed for 60

3 years, and likely much longer than that.

4 Crop records maintained by the Farm Service Agency going back into the 2000s

5 indicate that the fields within Facility Area alternate every several years or so between

6 forage (hay) crops, row crops (e.g., corn and soybean). Exhibit HGR-7 shows the farm

7 records present for the Facility Area where they can be visually displayed. Most of the

8 fields have been planted most years, though some areas have been left fallow for a year

9 or so. Many of the fields in the Facility Area, including those at the northeast corner of

10 the Facility Area and immediately east of Farm-to-Market Road, were planted, at least in

11 part, with corn and/or soybean in 2007 or 2008.

12 Q. DEC states that the agricultural areas were left fallow in anticipation of the HotH

13 delineation efforts conducted in 2004-2006 represents pre-disturbance conditions. Is this

14 statement accurate?

15 A. We understand that for the HotH project, the Facility was left fallow for the 2002 and

16 2003 growing season, in anticipation of the 2004-2006 delineation. However, Hecate

17 Greene does not believe that will indicate that normal conditions were present at the time

18 of the HotH delineation. DEC appears to agree, as their testimony (page 15, lines 4 and 5)

19 states that “it takes decades for wetlands to naturally recover from exempt agricultural

20 impacts.” Hecate Greene agrees—soil stabilization and stratification, natural seed bank

21 establishment, and restoration of typical hydrological regimes absolutely does take many

22 years—certainly more than two years of not planting. A review of historic aerial

23 photography clearly shows that the entire Facility Area has been actively and regularly

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 62

1 farmed for at least 60 years. Of course, portions of the Facility Area may have been

2 planted in hay or intermittently left fallow for some seasons during that timeframe.

3 In Exhibit DEC-WW-7 of DEC’s direct testimony, the statements of findings for

4 both FWWs HN-118 and HN-119 state that plant species observed included “purple

5 loosestrife, Phragmites, reed canary grass, wool grass, Juncus sp., grass-leaved

6 goldenrod, blue vervain and Joe-pye weed.” The three species mentioned first and

7 presumably the most abundant— purple loosestrife, Phragmites, and reed canary grass—

8 are not natural vegetation communities. Specifically, 6 NYCRR §575.3 lists two of the

9 invasive plant species (purple loosestrife and common reed) found at the Facility as

10 “Prohibited” (New York State Prohibited and Regulated Invasive Plants, DEC (Sept. 10,

11 2014), https://www.dec.ny.gov/docs/lands_forests_pdf/isprohibitedplants2.pdf), while

12 reed canary grass is listed as invasive by independent organizations (Reed Canarygrass,

13 WNY PRISM, https://www.wnyprism.org/invasive_species/reed-canarygrass/ (last

14 visited Jan. 15, 2021)) and neighboring states (Invasive Plants in Pennsylvania, PA.

15 Dep’t of Envtl. Protection,

16 http://elibrary.dcnr.pa.gov/GetDocument?docId=1738692&DocName=ReedCanaryGrass

17 .pdf (last visited Jan. 15, 2021)).

18 Invasive species thrive in disturbed soils (Invasive Plants, U.S. Forest Service,

19 https://www.fs.fed.us/wildflowers/invasives/index.shtml (last visited Jan. 15, 2021)) such

20 as roadsides, ditches, and agricultural land, and are highly opportunistic and

21 biologically adept at establishing in conditions that are too stressful for many other

22 plant species, such as those associated with abandoned agricultural lands (e.g.,

23 eroding soils, significant hydrology fluctuation, and presence of fertilizer or

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 63

1 chemicals) (Lingenfelter, Introduction to Weeds and Herbicides, PennState

2 Extension, https://extension.psu.edu/introduction-to-weeds-and-herbicides#section-

3 31 (last visited Jan. 15, 2021)). Some invasive species’ seeds have the potential to

4 remain viable in the soil for 40 years or more. In particular, reed canary grass

5 (documented throughout the HotH delineation) will continue to germinate from the

6 seed bank for more than 10 years (Laura Phillips-Mao, Restoring Your Invasive

7 Perennial-Dominated Grassland to Conservation Meadow, Nature Conservancy

8 (Jan. 1, 2017),

9 https://www.nature.org/content/dam/tnc/nature/en/documents/Restoration-Guide-

10 Invasive-Perennial-to-Conservation-Meadow.pdf).

11 Decades of farming has likely consistently introduced invasive species to the

12 Facility Area, through normal agricultural activities (Pathways, U.S. Dep’t of

13 Agriculture, https://www.invasivespeciesinfo.gov/subject/pathways (last visited Jan. 15,

14 2021)), either by seeds or viable fragments of the species which attached to equipment

15 (e.g., in mud caked on equipment) or products (e.g., soil, hay, straw) that move from

16 location to location (Agricultural Materials, U.S. Dep’t of Agriculture,

17 https://www.aphis.usda.gov/aphis/resources/pests-diseases/hungry-pests/how-they-

18 spread/agri (last visited Jan. 15, 2021)). Additionally, common herbicides used for

19 managing agricultural fields can be detrimental to the viability and success of seeds in the

20 seed bank, especially those of native plants (Ex. HGR-8).

21 Simply due to the nature of agricultural management described above, native

22 seeds are suppressed, and invasive species are consistently introduced to agricultural

23 fields. Additionally, the Facility Area is surrounded by roadways and bisected by a

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 64

1 stream—each of these linear features are well known to be significant vectors of

2 spreading invasive species. Without management activities such as planting a native

3 seed mix to transition abandoned agricultural sites to a normal condition (including

4 invasive species management and remediation of the soils and hydrological regime

5 above the plowtard), it is no surprise that invasive species were present in the Facility

6 Area at such high densities during the HotH delineation effort, even after the agricultural

7 fields were fallow for two growing seasons. That does not offset 60 years of continuous

8 farming that so strongly affects all three criteria for determining presence of wetlands.

9 Therefore, while DEC believes that observation of the wetland vegetation

10 communities during the HotH delineation effort establishes a delineation done within

11 normal conditions, all of this information suggests the mapped boundaries of FWWs HN-

12 118 and HN-119 represent mid-disturbance snapshot of the wetland boundaries present in

13 the Facility Area in 2004–2006, which resulted from temporary conditions.

14 Q. Do you believe that DEC is regulating the correct boundaries of the wetlands delineated

15 within the Facility?

16 A. No. Hecate Greene’s delineation is representative of the current site condition, and

17 therefore represents the current site conditions and therefore represents the current

18 boundaries of wetlands in agricultural areas. Regulating the full extents of the mapped

19 wetland limits of FWWs HN-118 and HN-119 is not the correct approach, considering

20 the following information:

21 i. the delineation event used as the basis for the 2014 wetland map amendment is

22 over 15 years old;

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 65

1 ii. a current wetland delineation was conducted in accordance with industry

2 standard methods and practices;

3 iii. DEC’s own data from the May 2020 site visit revealed upland conditions occur

4 within the boundary of the mapped boundaries of FWWs HN-118 and HN-119;

5 iv. these areas in question have been farmed continuously and consistently since at

6 least the mid-1950s (two decades before the Freshwater Wetlands Act was

7 enacted);

8 v. USACE’s agreement with Hecate Greene’s reported boundaries of the

9 delineated wetlands within the Facility; and

10 vi. The overall similarity of DEC’s and USACE’s delineation methods in

11 agricultural areas.

12 Q. Have you ever encountered a discrepancy in boundaries of an FWW before?

13 A. Discrepancies of field-delineated wetlands with mapped FWW boundaries is a very

14 common occurrence. However, after a field verification and any subsequent adjustments,

15 every wetland we have seen which is under simultaneous jurisdiction of Article 24 and

16 Section 404 of the Clean Water Act have all had the same regulatory boundary, whether

17 the FWW shrinks or grows from previous mapping. DEC has always matched the

18 USACE’s boundary for permitting processes, and this is a very unusual situation for me.

19 Q. Do New York’s wetlands laws and regulations contemplate fluctuations to the boundaries

20 of FWWs?

21 A. Yes. Section §24-0301 (7) of the Environmental Conservation Law allows for mapped

22 wetland boundaries to be more precisely delineated. In addition, 6 NYCRR §664.7(2)(i)

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 66

1 provides procedures for amending the boundaries of mapped wetlands by expanding or

2 contracting the boundaries based on evidence.

3 Q. Please discuss the Class I wetlands designation for FWWs HN-118 and HN-119?

4 A. 6 NYCRR § 664.5 outlines the criteria for determination of a FWW classification, and

5 according to those criteria, the FWWs at the Facility Area are correctly classified (in a

6 technical sense) as Class I due to the presence of a state-listed Threatened (northern

7 harrier, Circus hudsonius) and Endangered (short-eared owl, Asio flammeus) species.

8 Northern harriers and short-eared owls have been observed at or in the vicinity of the

9 Facility Area dating back to surveys conducted in December 2008. The FWWs at the

10 Facility Area, however, do not meet any of the other outlined criteria for Class I status.

11 DEC’s recommendations and public comment response from the map amendment for

12 both FWWs HN-118 and HN-119 (Ex. DEC-WW-7) additionally mention that two of the

13 three Class II FWW criteria met by this wetland reflect the presence of the northern

14 harrier and short-eared owl.

15 Classification should be based on functions and values that the wetland itself

16 provides to the area, not external factors unrelated to its presence. At the Facility Area in

17 particular, it is for several reasons that the Siting Board should evaluate the proposed

18 impacts to these FWWs and accompanying AAs in consideration of the site-specific

19 issues at this Facility.

20 Q. What are the most important considerations for the Siting Board’s review regarding the

21 Article 24 permitting standards in 6 NYCRR § 663.5 for FWWs HN-118 and HN-119?

22 A. One of the most critical issues is that the northern harrier and short-eared owl known to

23 winter at the Facility are not uniquely tied to wetland habitats. The short-eared owl and

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 67

1 northern harrier will utilize any open grassland habitat for foraging, not exclusively

2 wetlands (Species Status Assessment: Northern Harrier, DEC,

3 https://www.dec.ny.gov/docs/wildlife_pdf/sgcnnharrier.pdf (last visited Jan. 15, 2021);

4 Short-eared Owl, DEC, https://www.dec.ny.gov/animals/7080.html (last visited Jan. 15,

5 2021)). The short-eared owl is known to be particularly opportunistic, choosing wintering

6 and breeding sites based on prey abundance (Short-eared Owl, DEC,

7 https://www.dec.ny.gov/animals/7080.html (last visited Jan. 15, 2021)). That is, if the

8 wetland characteristics (hydrology, soils, etc.) at the Facility were not observed, but those

9 areas remained open grassland (or active agriculture, as it currently is) instead, there

10 would likely not be any measurable impact on the observed use of the Facility or

11 behavior of the species. Although the classification definition indicates differently, the

12 wetland functions and values of FWWs HN-118 and HN-119 are not increased by the

13 presence of these species, and the wetlands in this area have not been observed to affect

14 the species presence at the Facility Area, indicating that the species use and wetland

15 presence are coincidental, and seem mutually exclusive, rather than strongly interrelated.

16 Regardless, all of the impacts to these species are offset within the Preliminary NCBP,

17 regardless of the wetland or upland status of the occupied habitat.

18 Q. Please describe the condition of the mapped FWWs that Hecate Greene proposes to

19 impact.

20 A. The entirety of the fields (whether mapped FWW or not) throughout the Facility Area

21 have been in active agricultural use for over 60 years, including the associated crop

22 rotation between various row crops and hay. The agricultural wetlands that occur within

23 the open fields are subject to heavy disturbance through significant structural and

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 68

1 chemical manipulation during normal agricultural management activities (e.g., plowing,

2 tilling, planting, application of biocides, fertilizers, and harvesting crops). Such

3 disturbance has resulted in altered hydrology, loss of hydrophytic vegetation, loss of

4 habitat, and overall severe reduction in wetland functions.

5 Procedures described in the USACE Wetlands Functions and Values: A

6 Descriptive Approach from the supplement to the Highway Methodology Workbook

7 (Highway Method) were used to complete a functions and values assessment for all

8 wetlands that would be disturbed during construction and operation of the Facility. This

9 assessment considered eight functions relating to the ecological significance of wetlands,

10 often as beneficial services that wetlands provide to the greater ecosystem or watershed.

11 Five values reflecting human judgement of the worth, merit, quality, or importance

12 attributed to wetland functions were also evaluated. The quality of the PEM wetlands

13 (including within agricultural limits) assessed is generally “Fair” or “Poor”.

14 The majority of the PEM wetlands within the Facility Area are located in active

15 agricultural fields with little to no native vegetation other than the cultivated crop. These

16 wetland areas are unlikely to provide any significant functions to the surrounding

17 landscape. They may have limited suitability to provide floodflow alteration or

18 sediment/toxicant retention—however, that is likely offset by the chemical manipulations

19 and routine disturbance of the soil and vegetation of the area as part of normal

20 agricultural management activities. The PEM wetlands in meadows or successional old

21 fields and at the margins of agricultural fields have a higher capability to provide those

22 functions and were largely avoided during the planning of the Facility layout. Potential

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 69

1 wildlife habitat exists in the larger PEM wetlands containing non-problematic vegetation

2 (i.e., those wetlands not located in active crop fields).

3 Q. In its testimony, DEC stated that construction of the Facility will have negative impacts

4 on wetland by preventing the natural restoration of wetland hydrology, re-colonization of

5 impacted areas by hydrophytic vegetation, and re-establishment of lost wetland habitat. Is

6 this statement accurate?

7 A. No, there will be no net negative impacts to the wetland from construction of the Facility.

8 The nature of impacts currently affecting FWWs HN-118 and HN-119 (i.e., agricultural

9 practices) are different than those proposed by the Facility, so portions of FWWs HN-118

10 and HN-119 (primarily their accompanying 100-foot adjacent area (“AA”)) will

11 experience proposed impacts that are completely different in nature than those impacts

12 associated with the exempt agricultural activities. However, when considering the

13 avoidance, minimization, restoration, and mitigation efforts proposed by the Facility,

14 there is no adverse impact to FWWs HN-118 and HN-119, particularly in comparison to

15 existing site use.

16 Both uplands and wetlands (where they occur) within the Facility’s limits of

17 disturbance (LOD) will be restored to conditions which more appropriately reflect the

18 larger landscape. This restoration effort will involve seeding with an appropriate wetland

19 or upland seed mix (as appropriate, based on Hecate Greene’s delineation boundaries) to

20 ensure that areas within the limit of work, including within the panel arrays, are re-

21 colonized with native, herbaceous upland or wetland (hydrophytic) vegetation. Natural

22 conditions of soil structure, hydrological movement, and vegetation will be re-established

23 during the life of the Facility because agricultural fields currently in production or

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 70

1 rotation will no longer be tilled or frequently manipulated. Except for the limited areas

2 where there will be permanent impacts to wetlands due to roads and grading needs, the

3 lack of physical and chemical treatments associated with agricultural management in

4 these areas will allow for significant reestablishment of natural conditions including

5 hydrology, native early-successional vegetation such as grasses, wildflowers, and (in

6 wetlands only) aquatic or emergent species. Operations and maintenance activities will

7 not prevent the establishment of hydrophytic vegetation, though it will maintain it in an

8 early successional stage (i.e., meadow) which would be very similar to the conditions that

9 were present at the time of the 2004–2006 delineation for the Hamlet-on-the-Hudson

10 project.

11 Q. Can you please compare the impacts to onsite wetlands from exempt agricultural

12 activities and the proposed impacts from construction and operation of the Facility?

13 A. The agricultural activities impacting the wetlands may be exempt from regulation, but

14 they have been consistently ongoing for a minimum of two decades before New York

15 State enacted the Freshwater Wetlands Act, meaning exempt agricultural activities have

16 been occurring for approximately 60 years. Under agricultural activity, the wetlands are

17 impacted annually both directly and indirectly, causing reduction or loss of the functions

18 and values provided by the wetland. If the Facility is constructed, the on-site wetlands

19 will be restored according to best management practices and allowed to re-establish

20 natural conditions of wetland soils and hydrology during the operating life of the Facility.

21 Additionally, impacted wetlands will be seeded with appropriate wetland seed mixes as

22 discussed in Exhibit 22(d)(7) of the Application, allowing a native wetland plant

23 community to establish. These improvement opportunities for the wetland areas would

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 71

1 not likely exist without construction of the Facility, as agriculture would continue within

2 the Facility Area.

3 Although there are some wetland areas of the Facility Area that will require fill

4 and/or loss of functions or values of small acreages of FWW or AA, restoration measures

5 taken to stabilize and revegetate the Facility Area and management activities such as

6 invasive species treatment only improve previously degraded functions and values of

7 onsite wetlands that resulted from historic agricultural practices. In short, construction,

8 operation, and maintenance of the Facility will be providing a net benefit to the functions

9 and values of temporarily impacted wetlands.

10 Q. Does Hecate Greene agree with DEC’s impact calculations provided in Exhibit DEC-

11 WW-5?

12 A. No. Hecate Greene asserts that DEC’s state regulated FWW wetland boundaries and

13 regulated AA based upon promulgated mapping are wholly incorrect, as previously

14 discussed. Wetland boundaries should be consistent with the results of field delineations,

15 not approximate boundaries from mapping. Further, impacts from installation of panel

16 arrays are calculated by DEC as the entire footprint under the panel, without regard to the

17 type of construction (i.e., there is no fill of wetlands under panel locations). DEC’s

18 impact calculations also do not consider the function or value of the wetland resource.

19 Most simply, DEC calculated the area of disturbance without regard to the field

20 delineated boundaries, the construction methodology and associated impacts, or the

21 wetland functions and values. Additionally, DEC does not consider vegetative covertype,

22 or which wetland functions and values are impacted adversely (either temporarily or

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 72

1 permanently) by each proposed activity or Facility component within the proposed limits

2 of disturbance

3 Q. Do you have any additional comments regarding DEC’s impact calculations for the

4 Facility?

5 A. Yes. It is important to note that 6 NYCRR § 663.5 discusses the specific standards for

6 permit issuance, the language is based on the type of impact proposed and the reduction

7 or loss of wetland benefits, confirming that nuance is necessary to determine appropriate

8 offset of any proposed impacts. For example:

9 • 6 NYCRR § 663.5(e)(2): “For wetland Classes I, II, and III, the proposed

10 activity must minimize degradation to, or loss of, any part of the wetland

11 or its adjacent area and must minimize any adverse impacts on the

12 functions and benefits that the wetland provides.”

13 • 6 NYCRR § 663.5(f)(4): “reduction means that this applies not just to the

14 loss of any benefit, but to the partial loss or reduction of a benefit.”

15 Based on this language, it is clear that proposed impacts to FWWs must evaluate

16 significant detail to consider and quantify, such as the proposed activity, the specific loss

17 or reduction of benefits as a result of the activity, and the proposed restoration measures,

18 and not limit impact calculations solely to geographic space, or a measurement inside a

19 workspace.

20 Q. Does Hecate Greene propose restoration and mitigation which offsets any of the losses of

21 wetland functions or values?

22 A. Yes. As describe in the Application and the Proposed Certificate Conditions, proposed

23 restoration for wetlands in agricultural fields will consist of an alteration of land use, site

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 73

1 stabilization and revegetation. Halting agricultural activities, including soil disturbance

2 from tilling and/or planting and application of biocides and fertilizers will eliminate those

3 pressures, allowing the wetlands to return to natural extents. In a matter of time, wetlands

4 will exhibit more natural hydrology and hydric soil layers, reflective of pre-disturbance

5 conditions. Restoration of PEM wetlands currently in agricultural fields will therefore

6 avoid typical agricultural activities that would otherwise occur including erosion and

7 sedimentation from runoff associated with tilling/plowing activities and runoff from

8 fertilizer and/or biocides. Once stabilized, the areas will be seeded with an appropriate

9 native seed mix, allowing for the reestablishment of emergent wetland vegetation.

10 Restoration is likely to lead to enhancement of several wetland functions: a dense, diverse

11 layer of herbaceous native vegetation will trap and uptake residual nutrients and chemical

12 runoff, provide habitat and food sources for wildlife, and prevent further erosion of soils.

13 The result of the proposed Facility as designed, therefore, is improvement to the water

14 quality of the downstream watershed, and allowing normal conditions to establish at the

15 Facility and committing to the restoration, avoidance, and minimization measures to

16 wetlands described in the Proposed Certificate Conditions and Exhibit 22.

17 6 NYCRR § 664.3(b) discusses nine wetland benefits, most of which would not

18 be affected by construction and operation of the Facility, especially in consideration of

19 the recurring exempt impacts and their effects downgradient of the Facility Area.

20 However, 6 NYCRR § 664.5 provides a more in-depth classification system in respect to

21 the variance in wetlands from location to location. DEC-WW-7 details the Class I and

22 Class II characteristics which FWWs HN-118 and HN-119 met at the time of

23 promulgation, including 6 NYCRR §§ 664.5(a)(2), (b)(6), (b)(9), and (b)(12).

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 74

1 As detailed in 6 NYCRR § 663.5(g)(3), mitigation efforts are required to “totally

2 compensate for values or benefits that would be lost due to the proposed activity” in both

3 wetlands and their companion AAs regulated under Article 24. As discussed above, all

4 wetland areas proposed to be temporarily impacted will be protected and restoration in

5 these areas are expected to experience an enhancement to the functions and benefits than

6 they currently display (due to re-establishment of native vegetation and normal

7 conditions), and therefore, would not require further mitigation efforts to compensate for

8 the permitted activity. Despite no regulatory requirement for mitigation, the NCBP-

9 proposed mitigation areas contain substantial acreage of FWW, which will offset all

10 impacts to FWW and AA within these areas at a ratio of 1:1.

11 Q. How does the Facility propose to mitigate for the loss of function and value to FWWs

12 HN-118 and HN-119 regarding habitat for the short-eared owl and the northern harrier?

13 A. Compensation for known, occupied habitat is addressed in the Preliminary Net

14 Conservation Plan, and fully offsets all proposed impacts to occupied habitat from

15 construction and operation of the Facility, regardless if the impacts are within wetland or

16 upland areas. The NCBP provides a greater benefit to these species through long term

17 protection and management of habitats. As these functions of the FWW are mitigated for

18 separately and completely within the Application, the restoration and mitigation plan to

19 compensate for impacts to other functions and values of the FWW assumption should be

20 evaluated based on the functions not related to rare, threatened, or endangered species.

21 Q. Considering the conditions of the mapped boundaries of FWWs HN-118 and HN-119 in

22 the Facility Area and the benefits to them described above, is additional mitigation for the

23 Facility’s impacts thereto necessary?

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 75

1 A. Even if the mapped boundaries of FWWs HN-118 and HN-119 are considered wetlands

2 (despite lacking the requisite qualities of wetlands), the mitigation measures provided in

3 the Proposed Certificate Conditions are sufficient. If additional mitigation is required, the

4 impacts to these degraded wetlands that would be compensated for should be calculated

5 in a manner similar to the method used for determining impacts to resources regulated

6 under Sections 401 and 404 of the Clean Water Act. Regardless, it is also consistent with

7 the assessment of impacts to wetland benefits, functions, and values described previously.

8 Q. How was the Facility designed to avoid and minimize impacts to environmental

9 resources?

10 A. As described in Exhibit 22(j)(10), and Exhibit 22(j)(12), Hecate Greene has redesigned

11 the Facility several times before and between official submissions to avoid and minimize

12 any impacts that may result based on the data and resources identified, while ensuring

13 site accessibility and power generation potential. The Facility was designed to avoid or

14 minimize as many impacts to regulated resources as is practicable. At the time the

15 Application was submitted, Hecate Greene had not received DEC’s jurisdictional

16 determination and avoided and minimized all potential impacts that had been delineated

17 and approved by USACE. As described in Exhibit 22(j)(12), where encroachments are

18 proposed, Hecate Greene will also utilize Best Management Practices to the maximum

19 extent practicable to protect environmental resources, such as silt fence, filter sock, and

20 matting where appropriate. All of these practices and measures are detailed within the

21 preliminary stormwater pollution prevention plan (“SWPPP”) provided in Appendix 23-

22 A to the Application.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 76

1 New York’s Climate Leadership and Community Protection Act (“CLCPA”) is

2 designed to fight climate change and reduce harmful air pollution. A project such as the

3 Facility is essential to help the state meet its aggressive renewable energy goals and will

4 contribute to the improvement in public health through the reduction in greenhouse gas

5 emissions and associated adverse impacts on air quality associated with reliance on

6 carbon-based fuel sources. Similar to the Siting Board’s decision in Atlantic Wind,

7 determining that the social need for clean, green energy met the weighing and balancing

8 criteria from in 6 NYCRR Part 665 (Case 16-F-0276, Atlantic Wind LLC, Order Granting

9 Certificate of Environmental Compatibility and Public Need, with Conditions (June 20,

10 2020), at 21–22).

11 Q. DEC claims that it is unclear whether Hecate Greene has demonstrated that impacts the

12 mapped boundaries of FWWs HN-118 and HN-119 cannot be avoided and/or minimized,

13 and points identified areas that it believes could host panels instead of within FWWs HN-

14 118 and HN-119. Can Hecate Greene move any panels out of the mapped boundaries of

15 FWWs HN-118 and HN-119?

16 A. Hecate Greene does not believe that it is necessary to move panels out of the mapped

17 boundaries of FWWs HN-118 and HN-119 because as described above, Hecate Greene

18 asserts that the wetland delineations provides documentation that these areas do not meet

19 the criteria of regulated wetlands. Nevertheless, in the interest of compromise, Hecate

20 Greene has developed a conceptual potential alternative layout (“Alternative Layout”). A

21 map of the Alternative Layout is attached hereto as Exhibit HGR-1. It incorporates a

22 different panel technology that provides a smaller footprint while still allowing Hecate

23 Greene to meet its contractual obligations to enerate 50 megawatts of energy. The

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 77

1 Alternative Layout removes approximately 30 acres of panels and other infrastructure out

2 of FWW HN-118, thus eliminating the potential impacts DEC is concerned about. As

3 discussed in more detail below, the Alternative Layout also improves the conservation

4 areas set aside for the NCBP.

5 This Alternative Layout does come at a cost, however—to largely avoid the

6 mapped extents to FWW HN-119, arrays needed to be moved into delineated wetlands

7 that are subject to regulation under Section 404 of the Clean Water Act, and therefore,

8 expected impacts to delineated wetlands will increase compared to the previous design.

9 The calculations of the impacts resulting from the Alternative Layout continue to be

10 developed, and would be fully addressed in Compliance Filings and Hecate Greene’s

11 Clean Water Act Section 404 permit application.

12 Direct Testimony of Brianna Denoncour and Matthew Palumbo on Behalf of DEC

13 Q. Please summarize DEC’s recommendations regarding the Proposed Certificate

14 Conditions.

15 A. First, DEC recommends edits to Certificate Condition 98(a)(ii)(1) (referred to by DEC as

16 95(a)(ii)(1)). This Certificate Condition provides a contingency that would allow

17 construction of the Facility to occur during the proposed T&E grassland bird construction

18 prohibition window. Hecate Greene would be allowed to construct during the window if

19 it conducts daily surveys for T&E grassland bird species. Under the current proposed

20 version of Certificate Condition 95(a)(ii)(1), the surveys would occur in areas that remain

21 occupied habitat. If a T&E bird species is detected, Hecate Greene would follow the

22 established procedure of avoiding a 500-foot radius around such the nest or roost of such

23 species. DEC recommends adding that the daily surveys follow “protocol provided by

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 78

1 DEC”, and that the language limiting them to “areas that remain occupied habitat” be

2 deleted (Ex. DEC DP-4). In addition, DEC recommends that, if a T&E grassland bird

3 species is detected, “a stop work order shall immediately be issued for that survey area

4 and shall remain in place until such time notice to continue construction is granted by

5 DPS staff, in concurrence with DEC (the Certificate Holder may engage in emergency

6 activities [such as those situations threatening personal injury, property, or severe adverse

7 environmental impact] within the survey area)” (Ex. DEC DP-4).

8 Second, DEC recommends edits to Certificate Condition 98(c) (referred to by

9 DEC as 95(c)). This Certificate Condition establishes stop work radii to be used in the

10 event of discovery of T&E species during operation of the Facility. Under the currently

11 proposed version, the radii would not apply to Facility repairs necessary to permit

12 continued generation. DEC proposes instead that “the Certificate Holder may engage in

13 emergency activities [such as those situations threatening personal injury, property, or

14 severe adverse environmental impact] within such radius” (Ex. DEC DP-4).

15 Third, DEC recommends that the proposed Post-Construction Avian Monitoring

16 Plan in Certificate Condition 102(a) (referred to by DEC as 99(a)) be subject to DEC

17 approval.

18 Q. Do you agree with DEC’s recommendations?

19 A. Proposed Certificate Condition 98(a)(ii)(1) is consistent with Siting Board precedent.

20 Other than performing the daily surveys “in areas that remain occupied habitat,” the

21 condition is exactly the same as what the Siting Board adopted in Mohawk Solar. The

22 Siting Board relied on the use of the Environmental Monitor to protect the T&E grassland

23 birds. The DEC’s assertion that these species occur frequently at a Facility Area entirely

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 79

1 within occupied habitat should not alter the rationale employed by the Board. Whether an

2 area is more occupied or not, the Environmental Monitor will do its job according to the

3 protective measures adopted by the Board. Further, DEC’s recommendation

4 unnecessarily increases the frequency of potential work stoppages and is worded so

5 broadly that it could trigger a stop work order for the entire Facility Area upon a flyover

6 of one of the species. It creates serious uncertainty that could impair Hecate Greene’s

7 ability to finance the Facility and unnecessarily extend the construction schedule, thereby

8 jeopardizing its required in-service dates and other contractual deadlines. Therefore, this

9 recommendation should be rejected.

10 Hecate Greene also disagrees with the second recommendation, requiring stop

11 work/maintenance orders during operation. Once the Facility reaches the operation

12 phase, the occurrence of T&E species within the Facility Area will not be as frequent,

13 and observations of T&E species would likely be limited to areas adjacent, but outside of,

14 the fenced limits of the Facility. That is why Hecate Greene, as part of the Preliminary

15 Net Conservation Benefit Plan, proposed mitigation in the form of another nearby area

16 where suitable habitat will be maintained. There may be situations where repairs need to

17 occur at the Facility that do not quite rise to “emergency activities” as described by DEC,

18 but that nonetheless needs to be done immediately so that the Facility can continue to

19 generate carbon-free electricity. Hecate Greene cannot risk allowing a situation to occur

20 where it may be unable to repair the Facility immediately and risk breach of contract

21 issues because it was required to curtail production.

22 Hecate Greene also disagrees with the third recommendation. The Post-

23 Construction Avian Monitoring Plan is, plain and simple, a research project, being

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 80

1 undertaken on behalf of DEC. It is an expense that Hecate Greene is undertaking to

2 gather data to see how solar facilities might influence wintering birds. Consultation with

3 DEC on the development of this plan is reasonable; allowing DEC to dictate the terms of

4 the plan is not reasonable, as it is not a condition that avoids or minimizes impacts

5 associated with the Facility. Hecate Greene must be able to control the costs of the

6 research project and cannot allow DEC to have unfettered approval authority over it.

7 Q. Is Hecate Greene’s Proposed Certificate Condition 98(a)(ii)(1) consistent with Siting

8 Board precedent?

9 A. Yes. The Siting Board adopted the same condition in Solar (Case 17-F-0182, Mohawk

10 Solar LLC, Order Granting Certificate of Environmental Compatibility and Public Need,

11 with Conditions (Nov. 19, 2020), Certificate Condition 83(d)(i) (“Mohawk Order”)). The

12 only difference between Hecate Greene’s proposal and the Mohawk Solar precedent is

13 the clarification in the currently proposed Certificate Condition that the daily surveys will

14 only occur “in areas that remain occupied habitat.” Hecate Greene proposed this

15 additional language to clarify that the daily surveys would only be conducted in areas that

16 have not already been employed the installation of Facility components. Typically, the

17 construction contractor will begin installing posts, and follow behind with the installation

18 of panels on the posts. Additional work, such as installing cables, will then follow the

19 panels. As noted above, Hecate Greene’s proposed revision to Mohawk Solar’s condition

20 is intended to clarify that once the habitat has been sufficiently converted from potential

21 grassland habitat (i.e., panels have been installed), there is no need to continue to conduct

22 daily surveys in those areas because it is no longer “occupied habitat”.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 81

1 Q. DEC claims that Facility construction activities may result in take to short eared owl or

2 northern harrier. Does Hecate Greene agree?

3 A. Yes. However, Hecate Greene and DEC disagree on the nature of the predicted take and

4 how it should be quantified. Hecate Greene agrees that construction of the Facility will

5 result in take of occupied wintering habitat for short eared owl (SEOW) and northern

6 harrier (NOHA). Specifically, the Facility will result in adverse modification of habitat

7 which negatively affect essential behaviors, such as the loss and/or fragmentation of

8 habitat, displacement from and/or avoidance of the Facility (i.e., habitat present and no

9 longer used or shift in specific use of specific portions of a solar facility). Hecate Greene

10 developed and submitted the Preliminary NCBP to offset the adverse impacts that the

11 Facility will have on occupied habitat for SEOW and NOHA. DEC and other

12 organizations have commented on the NCBP, and Hecate Greene will continue to work

13 with these parties to finalize the Plan and formalize the commitments within, and will

14 submit the finalized NCBP as a compliance filing (Proposed Certificate Condition 98(d)).

15 Q. DEC claims that Facility construction activities in the winter season will result in direct

16 take of SEOW or NOHA individuals. Does Hecate Greene agree?

17 A. No. There is a low risk of take in the form of mortality to SEOW or NOHA. As reported

18 in Exhibit 22 of the Application, the Habitat Assessment and Preliminary Impact

19 Determination (Appendix 22-C of Exhibit 22) and the Preliminary NCBP, there are no

20 records of breeding grassland birds that have been identified at the Facility, meaning only

21 fully mobile adult or juvenile birds of either species are present in the winter for foraging

22 (and roosting). Direct take resulting in the destruction of nest or death of nestlings is not

23 a risk during winter months, nor do SEOW nor NOHA breed at the site. As described in

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 82

1 Section 1.3 of the Preliminary NCBP, indirect take to individuals in the form of

2 harassment could occur if one or more SEOW or NOHA are displaced from a site that

3 they were previously utilizing if construction activities were to begin during the winter

4 season when the birds are occupying the site for foraging. In light of that, Hecate Greene

5 proposed a construction prohibition window for the winter months to avoid displacing

6 any individual SEOW or NOHA that may have become established for winter foraging

7 activities within the Facility Area (Proposed Certificate Condition 98(a)(i)). But, it may

8 not be feasible to conduct all construction outside of the window. Therefore, Hecate

9 Greene also proposed a contingency that would allow construction during winter months

10 if necessary. To conduct construction during the window Hecate Greene must employ a

11 daily Environmental Monitor to survey for the presence of SEOW and NOHA ahead of

12 construction work in specific segments each day (Proposed Certificate Condition

13 98(a)(ii)(1)). If no T&E grassland bird species are detected, the survey segment area will

14 be considered clear for 24 hours and construction may proceed. If T&E grassland bird

15 species are detected, DEC and DPS will be notified, an area at least 500 feet around the

16 nest or roost of the T&E species will be avoided until DPS and DEC concurs that work

17 may continue within that radius, and the roost will not be approached unless authorized

18 by DPS and DEC (Proposed Certificate Condition 101(a)). If the observed individual, or

19 any other bird flying over, is deterred from utilizing site due to construction activities that

20 have already been initiated by the time the raptors arrive in winter, it is Hecate Greene’s

21 position that such impacts are already being mitigated by the actions described in the

22 Preliminary NCBP. As discussed above, it would be unreasonable and likely impair

23 Project financing to create this serious uncertainty to the construction schedule.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 83

1 Q. Are DEC’s proposed edits to Proposed Certificate Condition 98(a), discussed above,

2 necessary to avoid the potential for direct take of individual SEOW or NOHA?

3 A. No. Individuals that have the potential to occur in the Facility Area during construction

4 are fully mobile adult or juvenile birds that will be able to fly away and forage elsewhere

5 (including other portions of the Facility Area) if they are disturbed by construction

6 activities which have been ongoing in the area. In such instances, the potential for take

7 through mortality of individual birds is low to begin with, as the individuals that have the

8 potential to occur are able to flee and are relatively large birds that are easy to spot in

9 fields with sparse vegetation; placing a 500-foot no-disturbance buffer around roosts in

10 the Facility Area reduces the risk of mortality even further. According to most literal

11 interpretation of 6 NYCRR Part 182, this situation constitutes take through harassment of

12 these species, but it is not detrimental to species as a whole. Furthermore, Hecate Greene

13 is already compensating for impacts due to loss of occupied foraging habitat through the

14 actions described in the NCBP.

15 Q. Are DEC’s proposed edits problematic?

16 A. Yes. Due to the length of time it will take to construct such projects, it is likely that some

17 construction must occur during the winter season. DEC’s condition states that in the

18 event an individual SEOW or NOHA is observed, construction must stop in the field

19 where the individual occurs until DPS, with input from DEC, gives approval to resume.

20 Many of the fields within the Facility area thousands of feet across and as DEC noted in

21 their testimony, these species occur regularly in the area. DEC’s stop work requirement

22 creates a large undue risk associated with the potential of having to frequently halt

23 construction in large portions of the Facility Area, for an unspecified amount of time.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 84

1 This is likely to have significant consequences on the construction schedule.

2 Furthermore, such risks could also impact Hecate Greene’s ability to receive financing.

3 Hecate Greene maintains that enforcing a 500-foot no-disturbance/no activity buffer

4 around the individual SEOW or NOHA that are observed on site after construction has

5 begun, in conjunction with the mitigation activities set forth in the NCBP that offset loss

6 of foraging habitat due to construction of the Facility, serve to prevent direct and indirect

7 take to individual SEOW and NOHA and to occupied habitat. As the Siting Board held in

8 Mohawk Solar, “concerns about the ‘higher risk’ of construction are addressed not only

9 by the use of a buffer, but primarily by the use of the on-site environmental monitor, who

10 would conduct daily surveys to detect any grassland T&E bird species exhibiting

11 breeding or roosting behavior” (Mohawk Order at 27). Therefore, DEC’s proposal

12 should be rejected.

13 Q. Please discuss DEC’s critiques of Hecate Greene’s Preliminary NCBP.

14 A. DEC’s states that their preferred mitigation for impacts to SEOW and NOHA is the

15 protection and management of existing grassland habitat on, or within proximity to the

16 Facility (p. 26, ll. 5–9). Mitigation, according to DEC, should include at least one area of

17 100 acres or more and management of the habitat must follow their recommended best

18 management practices (p. 27, ll. 14–15). DEC also stated that the Grassland

19 Management Areas less than 25 acres will not be accepted (p. 27, ll. 13–14). While there

20 are still details that have yet to be worked out with DEC, Hecate Greene’s Preliminary

21 NCBP, which includes protection of a 215-acre avian conservation area, is likely to fulfill

22 DEC’s preferred mitigation. Furthermore, the Alternative Layout discussed above, if

23 adopted, would eliminate some of the smaller proposed mitigation areas for which DEC

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 85

1 has expressed concern, while simultaneously expanding the avian conservation area

2 significantly to include approximately 375 contiguous acres of occupied wintering raptor

3 habitat (Ex. HGR-9).

4 DEC is also opposed to the proposed public trails and siting of an overhead

5 transmission line within the avian conservation area. Hecate Greene will continue to

6 coordinate with DEC and others regarding the trails. Hecate Greene can agree to site the

7 overhead transmission line underground instead; therefore, concerns related to its

8 inclusion in the NCBP will be eliminated.

9 Q. Would Hecate Greene’s alternative layout address DEC’s concerns about minimizing

10 operational impacts to SEOW and NOHA and improve the Preliminary NCBP?

11 A. Yes. The Alternative Layout condenses the Facility components by relocating several

12 panel arrays. The Alternative Layout would increase the avian conservation area by

13 approximately 160 acres bringing the total conservation easement area to 375 contiguous

14 acres.

15 Direct Testimony of Lee H. Harper on Behalf of SH/GLT

16 Q. SH/GLT’s testimony is focused on criticizing the Preliminary NCBP. Is the Preliminary

17 NCBP the final version of the NCBP?

18 A. No, as noted above, Hecate Greene will continue refining its NCBP with DEC and other

19 parties such as SH/GLT prior to its submission as a compliance filing.

20 Q. Is a final NCBP required at this stage for the Facility to receive its Article 10 certificate?

21 A. No. Consistent with other Article 10 projects (see Mohawk Order at 15 (“. . . [the NCBP]

22 is still being developed by the Applicant and DEC Staff . . .”), the Proposed Certificate

23 Conditions require that a final NCBP, which has been accepted by DEC, will be filed

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 86

1 prior to commencement of ground disturbance activities in occupied habitat (Proposed

2 Certificate Condition 98(d)).

3 Q. Does SH/GLT propose a mitigation ratio for the NCBP?

4 A. Yes, SH/GLT proposes at least a 1:1 mitigation ratio.

5 Q. Does Part 182 mandate a 1:1 mitigation ratio for the take of wintering raptor habitat?

6 A. No, as explained by DEC in its direct testimony and in the Preliminary NCBP, no

7 specific requirement or guidance exists with regards to mitigation ratios for take of

8 wintering raptor habitat. During agency consultation, DEC directed Hecate Greene to use

9 as guidance NCBPs proposed by other Article 10 solar projects (i.e., Flint Mine and

10 Mohawk). Proposed mitigation projects include a combination of land protection and

11 habitat management (i.e., mowing regimes, hedgerow removal). The ratio of land in

12 conservation easement was less than 1:1 with “credit” given for management actions in

13 the form of cyclical management regimes. The mitigation activities proposed in Hecate

14 Greene’s NCBP are consistent with the referenced projects.

15 Q. What is the basis of SH/GLT’s proposed 1:1 mitigation ratio?

16 A. SH/GLT appears to base its proposed 1:1 mitigation ratio on local standards in the

17 Greene County Grassland Conservation Plan and the Town of Coxsackie Zoning Code

18 (Riveredge PNCBP Report at 15, 15 n.2).

19 Q. Are these local standards applicable to the Facility?

20 A. No, on advice of counsel, the provision of the Town Zoning Code cited by SH/GLT is

21 procedural because it describes a habitat protection plan to be submitted for review and

22 approval by the Town Planning Board during its SEQRA review. Such procedural

23 requirements are supplanted by Article 10. The Greene County Grassland Management

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 87

1 Plan provides goals and objectives for the County, but is not binding. It is referenced in

2 the same procedural habitat protection plan section of the Town Zoning Code, which,

3 again, is procedural and supplanted by Article 10.

4 If, arguendo, the Siting Board disagrees that this local law provision is procedural

5 and treats it as substantive, the Alternative Layout meets this standard. As noted above,

6 the Alternative Layout expands the CEA to approximately 375 acres, which is larger than

7 the Facility’s proposed impacts to grassland bird habitat of 368 acres.

8 Q. Does SH/GLT provide any scientific justification for its proposed 1:1 mitigation ratio?

9 A. No, SH/GLT merely states that it is typical without any citation other than the

10 aforementioned local standards (see Riveredge PNCBP Report at 15).

11 Q. SH/GLT claims that the Facility will take approximately 495 acres of occupied habitat,

12 while the Preliminary NCBP calculated approximately 368 acres. Please address this

13 discrepancy.

14 A. According to Section 4.2.1 of Exhibit LH-DT-2, SH/GLT “considered a take of raptor

15 habitat to include any acreage inside a fence or PV array area, as well as any and all

16 resulting fragments of suitable raptor habitat of under 25 acres.” They go on to state that

17 “[d]evelopment within large areas of existing open and occupied raptor habitat with solar

18 arrays may result in the creation of small habitat fragments. These new fragments,

19 created by the construction of the Facility, must be considered a habitat take if they are

20 less than 25 acres in size, whether they are inside the Facility boundary or outside the

21 Facility boundary.”

22 It is difficult to determine the exact reason for the discrepancy between Hecate

23 Greene’s and SH/GLT’s take calculations as SH/GLT did not identify the specific areas

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 88

1 inside and outside of the Facility boundary, that they included in their impact

2 determination. However, as stated in section 3.3 of the Preliminary NCBP, Hecate

3 Greene determined take of occupied habitat to include the Facility footprint (336 acres)

4 plus total area of suitable but fragmented habitat less than 25 acres in size (32 acres),

5 within the Facility Area. It should be noted that while some of the smaller, fragmented

6 areas of suitable habitat were included in impact determination, they were also included

7 as GMAs. Common grassland bird species will utilize smaller fragments of grassland

8 habitat and thus there is conservation value in managing these areas accordingly.

9 However, it is Hecate Greene’s position that a net conservation benefit for the species is

10 achieved with protection and management of the 215-acre core avian conservation area.

11 Q. Please address SH/GLT’s criticisms of the GMAs.

12 A. If the Alternative Layout is adopted, the GMAs will be eliminated and the main

13 conservation area will be expanded considerably. However, SH/GLT’s arguments should

14 be rejected even if the Alternative Layout is not adopted because the process that Hecate

15 Greene used to determine impacts was a reasonable and consistent with other similar

16 projects.

17 Q. Please address SH/GLT’s specific recommendations regarding the Preliminary NCBP.

18 A. SH/GLT Recommendation: For shrub land or young forest habitats to count as upland

19 mitigation, a commitment to brush and tree removal and conversion of these lands to

20 open grasslands must be a part of the NCBP.

21 Response: Hecate Greene has committed to removing certain hedgerows in order

22 to increase continuity between fields, thereby enhancing the habitat value within

23 the CEA. The specific hedgerows that will be cleared will be identified in the

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 89

1 final NCBP. However, large swaths of forest and shrub habitats will not be

2 cleared as there are few such areas within the conservation/management areas and

3 those that are present, are partly or entirely mapped wetland.

4 SH/GLT Recommendation: To receive full acreage credit for the CEA, the overhead

5 transmission line must be moved to the edge of the open habitat.

6 Response: Hecate Greene has decided to site this line underground; therefore,

7 concerns regarding the line’s inclusion in the NCBP have been eliminated.

8 SH/GLT Recommendation: Several specific recommendations that intend to condense

9 the layout of the Facility to increase the size of the CEA and decrease the number of

10 fragmented areas.

11 Response: As discussed above, the Alternative Layout would increase the CEA

12 by approximately 160 acres and reduce or eliminate many of the fragmented

13 areas.

14 SH/GLT Recommendation: In the event a sufficient mitigation ratio cannot be obtained

15 by a combination of on and off-site mitigation, we recommend establishing a mitigation

16 fund, paid into by the applicant.”

17 Response: As discussed above, a mitigation ratio of 1:1 acreage is not required or

18 appropriate. The final NCBP will comply with the requirements of Part 182.

19 Therefore, an additional and separate mitigation fund is not necessary.

20 SH/GLT Recommendation: Activities potentially not compatible with conservation

21 include the proposed recreational trails in the CEA.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 90

1 Response: Discussions on the NCBP are ongoing and removal of the trails can be

2 considered. But, trail systems with proper discretion and limitations do not

3 disqualify the potential multiple uses of the CEA.

4 SH/GLT Recommendation: The NCBP should include a plan to remove or thin

5 hedgerows and fragmenting vegetation from mitigation parcels to increase contiguous

6 habitat.

7 Response: As stated above, Hecate Greene intends to remove some hedgerows.

8 The specific hedgerows to be removed will be identified in the final NCBP.

9 SH/GLT Recommendation: All mitigation areas should be managed to promote the

10 development of healthy grasslands. Seeding of conserved areas (as opposed to just

11 mowing) is beneficial, but the NCBP must commit to the same practice in the solar array

12 areas along with management to keep Hecate Greene NCBP a ground cover of sufficient

13 height to provide cover for small mammals. In addition, the applicant should consider

14 adding pollinator habitat through seeding and management within the panel array areas,

15 commit to minimizing the use of herbicides to manage vegetation within the panel array

16 areas, and commit to using wildlife permeable fencing around the perimeter of the

17 Facility.

18 Response: As stated in the Preliminary NCBP and the Application, and required

19 by the Certificate Conditions, Hecate Greene intends to seed all areas, including

20 those within the panel arrays, to ensure the Facility and mitigation areas are fully

21 revegetated once restoration is complete. As stated in the Application, Hecate

22 Greene will use pollinator-friendly seed mix to restore upland areas following

23 Facility construction and to minimal use of herbicides to control vegetation.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 91

1 Q. Would Hecate Greene’s proposed Alternative Layout improve the Preliminary NCBP?

2 A. Yes, the Alternative Layout would address several of SH/GLT’s recommendations,

3 including undergrounding the transmission line in the CEA, consolidating panel arrays,

4 and increasing the overall size of CEA to approximately 375, depending on final design.

5 Q. Please address SH/GLT’s criticism that the overall value of the proposed mitigation areas

6 is compromised by the fact that much of the proposed GMA areas are wetland.

7 A. As described in the Preliminary NCBP, both SEOW and NOHA are known to forage

8 during winter in many types of habitats with low vegetation, including grasslands and

9 wetland habitats such as salt marshes and freshwater marshes. As such Hecate Greene

10 considers open wetland habitat within agricultural fields (essentially all of the wetland

11 habitat present in the CEA) to be compatible with mitigation for these species.

12 Q. Please address SH/GLT’s suggestions regarding the post-construction monitoring

13 element of the NCBP.

14 1) SH/GLT’s suggests a 10-year post-construction monitoring plan instead of Hecate

15 Greene’s commitment to annual post-construction monitoring for 5 years. The

16 post-construction monitoring plan outlined in the Preliminary NCBP is consistent

17 with the timeline in DEC’s Best Management Practices, which are recommended

18 by DEC to be used to guide habitat management on grassland habitat or habitat to

19 be converted into grassland. The BMPs recommend land should typically be

20 managed for a minimum of 5 years to see benefits for grassland birds (Best

21 Management Practices for Grassland Birds, DEC,

22 https://www.dec.ny.gov/pubs/86582.html (last visited Jan. 15, 2021)).

23 Furthermore, as these birds are known to utilize the site prior to construction and

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 92

1 because there will be a significant amount of habitat that will remain unchanged

2 by construction of the Facility (i.e., the CEA), it is Hecate Greene’s position that 5

3 years will be a suitable amount of time to assess post-construction use of the site

4 by SEOW and NOHA.

5 2) SH/GLT would like post-construction monitoring methods to follow protocol

6 developed by DEC and that Hecate Greene provide the results of the monitoring

7 to DEC, Greene Land Trust, Scenic Hudson, and other interested conservation

8 and/or research entities. Hecate Greene has committed to developing monitoring

9 plans, in consultation with DEC, to complete post-construction monitoring for

10 wintering raptors at both the Facility (including panel arrays) and the mitigation

11 area. Post-construction monitoring of the Facility will include at least two

12 seasons of survey during the first 3 years of Facility operation (Proposed

13 Certificate Condition 102). Post-construction monitoring of wintering raptors

14 within the mitigation area will be completed annually for 5 years (Preliminary

15 NCBP at 23). As stated in the Preliminary NCBP, reports of the post-construction

16 monitoring within the mitigation area will be provided to DPS. Details on the

17 location of T&E species are generally protected and are exempt from public

18 disclosure through the Freedom of Information Law. On advice of counsel, the

19 reports will not be submitted as part of the public record in this proceeding and

20 will not be subject to the Protective Order (see Case 17-F-0619, supra, Ruling

21 Adopting Amended Protective Order (Mar. 16, 2020), ¶ 4). Therefore, Hecate

22 Greene cannot commit to providing these reports to outside parties and SH/GLT

23 should discuss potential access to reports with the state agencies

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 93

1 Q. Please address SH/GLT’s comments regarding fee acquisition in the Preliminary NCBP.

2 A. As stated in the NCBP, Hecate Greene will ensure the core avian conservation area is

3 protected in perpetuity, by establishing a conservation easement or other avenue.

4 Alternately, the Grassland Management Areas are to be managed for the life of the

5 Facility, but not beyond. It is Hecate Greene’s position that protecting the proposed core

6 avian conservation, in combination with suitable management activities that will be

7 conducted for the life of the Facility, ensures a net conservation benefit for the species.

8 The Grassland Management Areas were intended to be supplemental mitigation for other,

9 less sensitive grassland birds that utilize smaller areas of grassland habitat. However, if

10 the proposed alternative design is adopted, there will no longer be any Grassland

11 Management Areas as these isolated sections of the Facility Area will contain panel

12 arrays or will have been merged into the larger, contiguous avian conservation area.

13 Regardless of the ultimate size of the avian conservation area, Hecate Greene will

14 identify a partner organization to work with to protect and manage the property.

15 Q. Please discuss the issue of cumulative impacts in the Article 10 context.

16 A. On advice of counsel, the only cumulative impacts that the Siting Board reviews under

17 Article 10 are air impacts and the impacts of Project related facilities and other Project

18 components (PSL § 168). There is no requirement in Article 10 to evaluate other

19 projects. Further, as required by the Stipulations (Case 17-F-0619, supra, Green County

20 Solar Facility Stipulations (Aug. 28, 2019) (“Study Stipulations”), Stipulation 22(d)(10)),

21 Hecate Greene already analyzed the cumulative impacts of the Facility and other

22 proposed and operating solar facilities over 5 MW within 100 miles of the Facility Area

23 on grassland breeding birds (App. Appendix 22-E). The analysis determined these

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 94

1 facilities do not present a significant adverse cumulative impact to grassland habitats and

2 grassland bird populations (App. Appendix 22-E at 15). SH/GLT does not refute Hecate

3 Greene’s studies, nor does it mention the cumulative analysis.

4 Q. Please discuss SH/GLT’s comments on cumulative impacts to SEOW and NOHA habitat.

5 A. SH/GLT asserts that the Facility will occupy 827 acres of NOHA and SEOW habitat, and

6 adversely affect 495 of those acres. They go on to state that the Facility, in combination

7 with impacts from a similar project nearby (Flint Mine Solar), will result cumulatively in

8 a “significant overall loss of currently occupied threatened and endangered species

9 habitat in this important area, even with mitigation.”

10 This statement is contrary to DEC’s own regulations. The Facility has been

11 designed to avoid and minimize impacts to natural resources, including habitat that is

12 suitable for NOHA and SEOW. As impacts to occupied habitat cannot be completely

13 avoided, Hecate Greene must develop a Net Conservation Benefit Plan that results in an

14 overall benefit to the species, as per Part 182. It is expected that other, similar projects

15 such as Flint Mine would involve regulatory review and would be held to the same

16 regulatory criteria applicable to the Facility. Thus, Flint Mine Solar would be required to

17 provide a mitigation plan that ensures a net conservation benefit for either NOHA or

18 SEOW. Therefore, if both projects must ensure a net benefit to the species, then there

19 will be only positive cumulative impacts for both SEOW and NOHA resulting from the

20 construction of the two solar facilities.

21 Direct Testimony of Stephen B. Le Fevre and Ted M. Kolankowski

22 Q. Please address the Municipalities’ assertion that the Facility “is clearly at odds with t[he]

23 local character and the stated desires of the Municipalities to preserve open space,

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 95

1 agricultural lands and rural character” discussed in the Municipalities’ Comprehensive

2 Plans (p. 5, ll. 17–19).

3 A. The Municipalities focus on statements in the Town and Village of Coxsackie’s

4 Comprehensive Plan regarding the protection of their rural character (p. 5, ll. 9–15). But

5 the Municipalities do not mention that the Comprehensive Plan also discusses the

6 importance of access to electrical service and working with developers to increase the use

7 of alternative energy sources such as solar (Exhibit (“Ex.”) SBL-2 at 37). The

8 Comprehensive Plan also notes goals of improving livability through economic growth

9 that expands the tax base and creating a stable tax base (Ex. SBL-2 at 3), which the

10 Facility will contribute to as demonstrated in Exhibit 27 of the Application. Further, as

11 discussed in Exhibit 4 of the Application, the Facility will preserve agricultural land for

12 future use, unlike other potential developments such as subdivisions (Application

13 (“App.”) Ex. 4 at 2). The Facility strikes a balance between the competing interests of

14 preserving rural character and stabilizing the tax base and encouraging the use of

15 renewables.

16 Q. The Municipalities also quote from the Town and Village of Athens Comprehensive Plan

17 (p. 5, ll. 15–17). Is any part of the Facility or Facility Area located in the Town or

18 Village of Athens?

19 A. No. Therefore, the Town and Village of Athens Comprehensive Plan is not relevant to

20 this proceeding.

21 Q. The Municipalities claim that the Facility does not comply with the Town of Coxsackie

22 Zoning Code (“Code”) § 167-6(C)(4)(i) (p. 7, ll. 18–23; p. 8, ll. 1–18). Please discuss.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 96

1 A. As stated by the Municipalities, this provision requires a utility-scale solar facility’s

2 arrays to avoid prime farmland to the maximum extent practicable (p. 7, ll. 19–20). In

3 compliance with Article 10’s similar standard, the Facility does avoid impacts to prime

4 farmland to the maximum extent practicable. The Facility Area contains approximately

5 118 acres of prime farmland soils, and permanent impacts to prime farmland soils

6 associated with the Facility are limited to approximately 3.09 acres from new gravel

7 roads and approximately 0.044 acres from panel posts (Case 17-F-0619, supra, Agency

8 Discovery Responses (Dec. 16, 2020) (“Agency Discovery Responses”), at 2). The

9 substation footprint will not impact any prime farmland soils (id.). These calculations of

10 permanent impacts to prime farmland are consistent with recent Siting Board precedent

11 (Case 17-F-0617, Hecate Energy Albany 1 LLC and Hecate Energy Albany 2 LLC,

12 Order Granting Certificate of Environmental Compatibility and Public Need, with

13 Conditions (Jan. 7, 2021), at 27 (“Hecate Albany Order”); Case 17-F-0599, East Point

14 Energy Center, LLC, Order Granting Certificate of Environmental Compatibility and

15 Public Need, with Conditions (Jan. 7, 2021) (“East Point Order”), at 31–32). In addition,

16 the Proposed Certificate Conditions contain measures to minimize impacts to agricultural

17 resources. In Proposed Certificate Condition 97, Hecate Greene agrees minimize or

18 avoid construction-related impacts to agricultural resources in accordance with AGM’s

19 Guidelines for Solar Energy Projects – Construction Mitigation for Agricultural Lands

20 (“AGM’s Solar Guidelines”) to the maximum extent practicable. Further, Hecate Greene

21 commits to consulting with AGM on reasonable alternatives if deviations from AGM’s

22 Guidelines are required (Proposed Certificate Condition 97). Proposed Certificate

23 Condition 70 provides that if wetland mitigation efforts are required, Hecate Greene will

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 97

1 avoid siting those efforts in prime farmland soils to the maximum extent practicable.

2 Where trenching and other excavation will be performed in agricultural areas, all topsoil

3 will be stripped and segregated from subsoils (Proposed Certificate Condition 110).

4 Trenching areas will be consolidated to the maximum extent practicable (id.).

5 Additionally, the third-party environmental monitor will be qualified to monitor

6 agricultural issues (Proposed Certificate Condition 78). Thus, the Facility complies with

7 Article 10 and the local law provision by avoiding or minimizing impacts to prime

8 farmland to the maximum extent practicable.

9 Q. Please address the Municipalities’ recommendation on addressing impacts to prime

10 farmland.

11 A. The Municipalities recommend that impacts to prime farmland should be treated in the

12 same manner as wetlands: “the Applicant should be required to present and consider

13 reasonable alternatives that avoid Project impacts to prime farmland, and to analyze and

14 explain why certain impacts to prime farmland cannot feasibly be avoided. The operating

15 assumption should be that all Project impacts to prime farmland will be avoided once

16 such a showing is made.” (p. 9, ll. 10–14). On advice of counsel, however, the

17 Municipalities’ recommendation is not what is required under Article 10. Article 10

18 requires that environmental impacts be avoided or minimized to the maximum extent

19 practicable. As discussed above, the Facility meets this standard in regards to prime

20 farmland, and the Municipalities provide no evidence to the contrary.

21 Q. Please address the Municipalities’ claim that, “[i]n our opinion, the Application does not

22 sufficiently minimize visual impacts of the Project from local roadways and nearby

23 residences, and therefore, does not comply with Solar Law.” (p. 10, ll. 13–15).

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 98

1 A. The Solar Law provisions cited by the Municipalities require that, as part of the local site

2 plan approval process, visual impacts should be avoided or minimized through siting and

3 screening. Code § 167-6(4)(l) states that “[l]andscaping, screening and/or earth berming

4 shall be provided to minimize the potential visual impacts associated with the utility-scale

5 solar collector systems and its accessory buildings, structures and/or equipment.

6 Additional landscaping, screening and/or earth berming may be required by the Town

7 Board and/or the Planning Board to mitigate visual and aesthetic impacts.” Code § 167-

8 6(4)(n) states that “[t]he utility-scale solar energy collection system, including any

9 associated fencing or proposed off-site infrastructure, shall be located and screened in

10 such a way as to avoid or minimize visual impacts as viewed from: (1) Publicly dedicated

11 parks, roads and highways; (2) Existing residential dwellings located on contiguous

12 parcels.”

13 Hecate Greene complied with Code § 167-6(4)(l). The provision provides no

14 standard other than requiring landscaping, screening, and/or earth berming to minimize

15 potential visual impacts. Hecate Greene’s Application included vegetative screening to

16 minimize potential visual impacts.

17 On advice of counsel, Code § 167-6(4)(n) is procedural and therefore supplanted

18 by Article 10. In East Point, the Siting Board held that a local law provision with

19 substantially similar language to Code § 167(4)(n) was procedural (East Point Order at

20 72, 73–74). Further, even if this provision was considered substantive, the Facility was

21 designed to comply with Article 10, which goes further than this provision by requiring

22 that visual impacts be avoided or minimized to the maximum extent practicable (see

23 Public Service Law (“PSL”) § 168). Hecate Greene satisfied the Article 10 standard—

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 99

1 and, by implication, the local law standards—by continuing to adjust the siting of arrays

2 to avoid or minimize Facility visibility where it was practicable to do so. The

3 progression of the Facility’s layout (see App. Ex. 9, Fig.9-6) shows that panels were

4 removed from the northwestern portion of the Facility Area because it was identified as

5 one of the most visually sensitive areas due to elevations causing open views there from

6 residences and roadways. The Application also provided planned landscape screening in

7 areas where Facility visibility could effectively be minimized (see App. Ex. 24 at 9).

8 Q. The Municipalities identified three specific photographs that they believe to demonstrate

9 that several residences and roadways will have clear or partially obstructed views of the

10 arrays (p. 10, ll. 7–10). Please address the potential views from these areas, and whether

11 Facility visibility has been avoided or minimized to the maximum extent practicable.

12 A. The three referenced photos were contained with the Historic Resources Survey Report.

13 As noted in that report, residences near each of these locations would likely have clear or

14 partially obstructed views of some of the solar arrays. The Municipalities requested

15 vegetative screening be considered in these areas to further screen the views. Hecate

16 Greene concluded in its initial review of the Facility Area that views from these locations

17 were likely partially screened by existing vegetation and that additional screening to

18 enhance existing screening may not be effective due to factors such as elevation. But,

19 Hecate Greene has begun to review the potential for additional Facility visibility resulting

20 from the Alternative Layout, and additional vegetative screening will be revisited as part

21 of that process. Any additional screening that Hecate Greene determines is required

22 would be addressed in updated drawing and landscape management plans that would be

23 submitted in the Compliance Filings.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 100

1 Q. The Municipalities indicate that, “[f]or several residences, views of open farmland and

2 the Catskill Mountains will be replaced with views of solar arrays.” (p. 10, ll. 22–23). Is

3 this accurate?

4 A. Existing views of farmland and the Catskill Mountains are seen in context of a landscape

5 setting that has been modified primarily by agricultural, residential, commercial and state

6 institutional development and includes features such as roadways, railroads, existing

7 electric lines, and other visible structures. The solar arrays are proposed to be placed in

8 areas that are currently farmland and may be visible from some areas where existing or

9 proposed vegetation does not obscure the view. The solar arrays will introduce regular

10 forms and horizontal and vertical lines into a viewscape already containing cultural

11 modifications. From some vantage points, the continuous blocks of solar arrays may

12 appear similar to the geometric lines of agricultural fields and large expanses of

13 pavement such as parking lots, or similar to the dark color of large waterbodies. Views

14 from locations not directly adjacent to the Facility will be mostly to completely screened

15 by topography and/or vegetation within the existing landscape and will therefore result in

16 minimal to no impact to views of farmland or the Catskill Mountains.

17 Q. Please address the Municipalities’ assertion that the Facility “may be visible from”

18 historic properties, scenic roadways, wildlife management areas, Scenic Areas of

19 Statewide Significance, and major transportation corridors (p. 11, ll. 3–6).

20 A. Appendix B of Exhibit 24 refers to a table that lists the identified scenic resources within

21 the visual study area and potential visibility of the Project based upon a desktop viewshed

22 analysis. A subset of these resources was further analyzed as Representative Viewpoints

23 as identified in Table 3 in Exhibit 24. Table 3 identifies whether these locations have

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 101

1 views of the Project based upon field verification. Many of the scenic resources identified

2 as having potential visibility of the Project based upon the viewshed analysis were

3 determined to not have actual views of the Project when visited in the field to verify the

4 computer-generated analysis. Most of the scenic resources with visibility of the Project

5 are in the middleground and background distance zones located several miles away from

6 the project where the facilities would not appear as a dominate feature if visible. In

7 addition, many long-distance views may be partially obstructed by terrain, existing

8 vegetation, and other cultural modifications further limiting visibility of the project area.

9 Residences are the closest viewpoints analyzed and vegetative screening is proposed

10 where possible to mitigate visual impacts.

11 Q. Please explain why Hecate Greene did not request input regarding the selection of

12 viewpoints for simulations from the Town of Coxsackie Supervisor, the Village of

13 Athens Mayor, or the Village of Coxsackie Mayor (p. 10, l. 23; p. 11, ll. 1–3).

14 A. As explained to the Municipalities in response to an interrogatory (Case 17-F-0619,

15 supra, Municipalities Discovery Responses (Dec. 16, 2020) (“Municipalities IRs”) at 11–

16 12), Hecate Greene complied with Stipulation 24(b)(4). The Stipulation required Hecate

17 Greene to confer with municipal planning representatives. Requests for feedback on

18 simulation locations were sent to, among several other entities, the Town of Coxsackie

19 Planning Boards, the Town of Coxsackie Historian, and the Village of Coxsackie Historic

20 Preservation Committee (id. at 12). The Village of Athens did not participate in

21 Stipulation negotiations and did not join the proceeding as a party until after the

22 Application was filed; therefore, no correspondence was submitted to its planning

23 representatives. Accordingly, Hecate Greene complied with its obligations to confer with

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 102

1 municipal planning representatives. The Municipalities do not provide any evidence to

2 the contrary, and do not cite any obligation that Hecate Greene did not satisfy.

3 Q. Please explain why additional simulations from the six residence groupings identified by

4 the Municipalities were unnecessary (p. 11, ll. 10–13).

5 A. As Hecate Greene explained to the Municipalities in response to an interrogatory

6 (Municipalities IRs at 168–169), the relevant features of all the requested simulation

7 areas were already captured in the simulations from the representative viewpoints

8 provided in the Application:

9 • Requested Simulation 1: It appears views from this location would be screened by

10 existing vegetation on the residential property as well as vegetation in the Facility

11 Area that will remain. Simulation 4 in the VIA provides a representative view at a

12 similar distance from the Facility as this location.

13 • Requested Simulation 2: Vegetation in the Facility Area that will remain will

14 screen some views from this location. Simulations 1, 4, and 6 in the VIA provide

15 representative views at distances slightly farther or closer than this location.

16 • Requested Simulation 3: Simulations 1 and 6 in the VIA provide a representative

17 view at a similar distance from the Facility as this location. Views to the north and

18 northwest from this property will likely be screened by existing trees.

19 • Requested Simulation 4: Simulations 1 and 6 in the VIA provide representative

20 views at a similar distance from the Facility as this location.

21 • Requested Simulation 5: Simulations 1 and 6 in the VIA provide representative

22 views at a similar distance from the Facility as this location.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 103

1 • Requested Simulation 6: It appears views from this location would generally be

2 screened by trees on the residential property and a hill north of the house.

3 Simulation 1 in the VIA provides a representative view at a closer distance and

4 Simulation 4 provides a representative view at a farther distance.

5 • Requested Simulation 7: It appears this view would be screened by trees on the

6 residential property during leaf on conditions. Simulation 6 in the VIA provides a

7 representative view at a similar distance from the Facility at this location.

8 (Municipalities IRs at 169).

9 Q. Did the Municipalities provide recommendations for additional screening in their direct

10 testimony?

11 A. Yes, the Municipalities provided a map that indicates areas that they assert additional

12 landscape screening is necessary (Ex. SBL-5). As part of the Compliance Filing process,

13 Hecate Greene is willing to consider adding screening if it would indeed further minimize

14 Facility visibility. Field investigations would be required to determine the effectiveness

15 of any proposed additional screening. Some areas may not be able to be screened due to

16 their elevations, and some are known to already be screened by existing vegetation.

17 Hecate Greene has begun to conduct the necessary field work and agrees to continue to

18 discuss potential additional screening with the Municipalities.

19 Q. Please address the Municipalities’ arguments concerning potential glare.

20 A. The Municipalities claim that the Facility does not comply with a provision of the Solar

21 Law that requires that “[t]he design, construction, operation and maintenance of any

22 utility-scale solar energy system shall prevent the misdirection and/or reflection of solar

23 rays onto neighboring properties, public roads and public parks in excess of that which

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 104

1 already exists.” (p. 12, ll. 4–6 (citing Code § 167-6(4)(o)). The Municipalities fail to

2 recognize that the glare analysis performed for the Facility did not identify any glare

3 impacts (see App. Appendix 15-A). The Municipalities did not provide any evidence that

4 the Facility will produce glare in violation of this provision. Further, the Municipalities

5 ignore that the Proposed Certificate Conditions provide a remedy for unanticipated glare

6 impacts: “Complaints regarding unanticipated glare from PV panels at non-participating

7 residences or roadways will be resolved in accordance with the Final Complaint

8 Resolution Plan, and potential mitigation will be considered if determined to be necessary

9 to resolve unanticipated glare impacts.” (Proposed Certificate Condition 48(m)).

10 Q. Please address the Municipalities’ claim that the Facility does not comply with Code §

11 201-52(D)(3).

12 A. Code § 201-52(D) provides minimum planting requirements for the Code’s landscaping

13 and buffering section. As the Municipalities note, Code § 201-52(D)(3) requires that

14 “[s]hrubs and ground cover should be planted so that they attain coverage of at least 75%

15 of the planting area within four years.” (p. 12, ll. 20–21). With the Proposed Certificate

16 Conditions, the Facility would comply with this provision. Certificate Condition 95

17 requires that the minimum ground cover in the Stormwater Pollution Prevention Plan

18 (“SWPPP”) be achieved on all disturbed soils and any bare areas by the end of the first

19 full growing season. The minimum ground cover contained in the SWPPP is 80% (App.

20 Appendix 23-B at 1.4.2.2). Regarding any shrubs used for visual screening, the

21 Certificate Holder is required submit a Visual Mitigation Planting Plan, which requires

22 that vegetative screening that does not survive be replaced (Proposed Certificate

23 Condition 48(d)–(h)).

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 105

1 Q. Does Hecate Greene agree with the Municipalities’ recommended alternative species list

2 to be used for vegetative screening (p. 13, ll. 12–19)?

3 A. Yes, other than Eastern White Pine. The Municipalities presented its alternative list to

4 Hecate Greene, and Hecate Greene agreed to use those species in its final plans. DPS

5 concurred with the list, other than Eastern White Pine due to local concerns with that

6 species as noted by multiple parties.

7 Q. Please address the Municipalities’ objection to Hecate Greene’s request that the Siting

8 Board elect not to apply the Solar Law’s zoning district restrictions (p. 13, ll. 20–22).

9 A. As demonstrated in the Application, the provisions of the Solar Law restricting utility-

10 scale solar to the Commercial District and Industrial District in the Town is unreasonably

11 burdensome (App. Ex. 31 at 4–5). The Municipalities only address one element of

12 Hecate Greene’s request: that the restriction is unreasonably burdensome in light of

13 technology (p. 14, l. 8–p. 15, l. 4). The Municipalities argue that this “restriction reflects

14 a legislative determination that utility scale solar is wholly inappropriate in areas in the

15 Town dedicated to residential and agricultural uses” (p. 14, ll. 12–14) and that “the fact

16 that there is insufficient land in the Industrial and Commercial Districts does not justify

17 siting the Project in a district in which it is a prohibited use” (p. 15, ll. 1–2).

18 The Municipalities do not, however, provide any evidence that a 50 MW solar

19 facility could be built in the only zoning districts in which utility-scale solar facilities are

20 allowed by the Solar Law. Hecate Greene, on the other hand, demonstrated that such a

21 facility could not be built in the Commercial and Industrial Districts even if a developer

22 could obtain the land that remains in these approximately 627 acres (App. Ex. 31 at 5).

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 106

1 In addition, Hecate Greene has no rights to any land in those districts. Therefore, it is

2 technologically impossible to build the Facility there.

3 Further, the Municipalities fail to address Hecate Greene’s request in terms of the

4 needs of consumers, and only one prong of the unreasonably burdensome criteria needs

5 to be met. Pursuant to 16 NYCRR § 1001.31(e)(3), Hecate Greene demonstrated that the

6 urgent needs of consumers to reduce greenhouse gas emissions outweigh the potential

7 effects of the Facility—which have been minimized to the maximum extent practicable—

8 on the community cited by the Municipalities that could result by allowing the Facility to

9 be constructed in the zoning districts in which it is proposed (App. Ex. 31 at 5).

10 Allowing municipalities to zone out utility-scale renewables facilities, as the Town has

11 done here, would provide ammunition to municipalities across the State to obstruct the

12 State’s ability to achieve its 70% by 2030 renewables mandate.

13 Q. Please address the Municipalities’ criticism of Hecate Greene’s request that the Siting

14 Board elect not to apply Code § 167-6(B)(5), which addresses “lot coverage” limitations

15 (p. 15, ll. 5–14).

16 A. First, the Municipalities selectively quote the provision at issue. The full provision states

17 that “[a] utility-scale solar collector system may occupy up to 20% of the area of the solar

18 lot. The lot coverage shall be deemed to include all land under or between any system

19 components within the general perimeter of the system as a whole, but shall not include

20 the area within the buffer between the system components and the surrounding security

21 fencing. The Planning Board may waive the maximum lot coverage area of 20% up to a

22 maximum of 50% of the area of the solar lot if the project sponsor can show that

23 increasing the lot coverage will actually result in less environmental or visual impacts.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 107

1 The determination as to whether a waiver is justified lies solely in the Planning Board.”

2 (Code § 167-6(B)(5) (emphasis added)). Hecate Greene requested that the Siting Board

3 apply the 50% lot coverage contemplated by the Solar Law rather than fully waiving the

4 lot coverage requirement (App. Ex. 31 at 5). And regardless of whether the Facility Area

5 is considered one “solar lot” or two under the Solar Law’s definition (see Code § 167-3),

6 the Facility would comply with the alternative 50% lot coverage requirement

7 (Municipalities IRs at 25, 151–153).

8 Q. Please address the Municipalities’ statement that Hecate Greene is in agreement that the

9 Town Building Inspector/Code Enforcement Officer is the appropriate person to certify

10 compliance with the New York State Uniform Fire Prevention and Building Code (p. 15,

11 ll. 15–21).

12 A. In the Application, Hecate Greene stated that it “may make a request to the Board during

13 the Article 10 proceeding” that it authorize the Town Building Inspector/Code

14 Enforcement Officer to certify compliance (App. Ex. 31 at 2). Hecate Greene has not

15 made this request, however, and does not do so here. Rather, Hecate Greene will comply

16 with Certificate Condition 47, which requires the Certificate Holder to “submit for review

17 the building plans to an entity qualified by the NYS Department of State, in order to

18 obtain compliance certified with the NYS Uniform Fire Prevention and Building Code,

19 the Energy Conservation Construction Code of NYS, and the substantive provisions of

20 any applicable local electrical, plumbing, or building code.” This approach is consistent

21 with Siting Board precedent (see, East Point Order, Certificate Condition 28).

22 Q. Please address the Municipalities’ recommendation that they and Hecate Greene

23 negotiate a Road Use Agreement during the course of this proceeding that would “be in

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 108

1 place well before the commencement of any construction to protect the Municipalities’

2 interest in ensuring that the costs of road repair are covered by the Applicant.” (p. 16, ll.

3 3–8).

4 A. Hecate Greene intends to negotiate a Road Use Agreement with the Town of Coxsackie,

5 and is required by Proposed Certificate Condition 42(c) to file it as an Information Report

6 before commencement of construction.

7 Q. Please discuss the Municipalities’ criticisms of the Payment-in-Lieu-of-Taxes (“PILOT”)

8 that Hecate Greene estimated in Exhibit 27 (p. 16, ll. 9–19).

9 A. First, on advice of counsel, PILOT negotiations are outside of the realm of Article 10.

10 Estimates are provided in Exhibit 27 of Article 10 applications to help inform about the

11 potential for socioeconomic benefits of projects; however, the precise figures are subject

12 to negotiations that are not part of the Article 10 process. Nevertheless, as Hecate Greene

13 explained in an interrogatory from the Examiners (Agency Discovery Responses at 1),

14 Hecate Greene based its PILOT estimate on other PILOTs for solar facilities in New

15 York, including estimated PILOTs for Article 10 solar facilities. For example, the

16 proposed 90.5 MW Mohawk facility estimated PILOT payments of $300,000 per year

17 over 15 years (see Case 17-F-0128, supra, Application Exhibit 27 (June 5, 2019), at 14).

18 Hecate Greene’s estimate of $4.5 million over 35 years (approximately $128,600 per

19 year) is similar to Mohawk when accounting for the size of the facilities and number of

20 municipalities involved. Mohawk estimated approximately $3,315/MW and is located in

21 two Towns ($1,658/MW/Town); Hecate Greene estimated approximately $2,571/MW

22 and is located within a single Town.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 109

1 Further, Hecate Greene disagrees with the Municipalities’ statement that “[t]hese

2 PILOT payments are effectively the only local benefit provided by the Project.” (p. 16, ll.

3 16–17). The Facility preserves agricultural resources for potential future use, unlike

4 other forms of development such as housing (see App. Ex. 4 at 6–7; App. Ex. 9 at 7–9).

5 Hecate Greene is also working closely with the local fire departments, and is providing

6 an all-terrain fire response vehicle (See HGR-10load re).

7 Q. Does review of the Facility “coincide[] with the review of Case 18-F-0087” (i.e., the Flint

8 Mine Article 10 proceeding), as the Municipalities state (p. 16, ll. 21–23)?

9 A. No. Article 10 projects are reviewed on their own merit. Article 10 specifies the only

10 impacts to be reviewed cumulatively: air impacts and impacts of related facilities (PSL §

11 168(2), (2)(d). Neither Article 10 and its implementing regulations nor the Stipulations

12 call for a study on the potential impacts of multiple Article 10 projects on “the rural,

13 agricultural, and historic character of the” host communities (p. 17, ll. 1–3). Hecate

14 Greene complied with Article 10 and its Stipulations, as evidenced by its Application

15 being deemed compliant by the Siting Board.

16 Q. Please discuss the Municipalities’ invocation of the State Environmental Quality Review

17 Act (“SEQRA”) (p. 17, ll. 4–7).

18 A. The Municipalities claim that “[f]ailure to require the Applicant to assess cumulative

19 environmental impacts under these circumstances is clearly not in compliance with the

20 substantive requirements” of SEQRA (p. 17, ll. 4–6). The Municipalities ignore,

21 however, that SEQRA does not apply to Article 10 projects. On advice of counsel,

22 SEQRA specifically excludes actions subject to Article 10 (ECL § 8-0111(5)(b)). Thus,

23 SEQRA is not applicable here.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 110

1 Q. Please address the Municipalities’ comment regarding Municipal Home Rule Law (p. 18,

2 ll. 8–10).

3 A. The Municipalities assert that their ability to zone the Facility out of the Town has been

4 supplanted by Article 10, stating that “[i]n the case of Article 10, the Municipalities are

5 forced to the sidelines while their local laws and residents’ interests are given less weight

6 than the solar company’s economic interests.” (p. 18, ll. 10–12). This argument was

7 addressed by the Siting Board when it adopted the Article 10 regulations. The Siting

8 Board explained that Article 10 and the concept of home rule do not conflict:

9 But there is no limit on the State Legislature’s authority to act by 10 general laws to supersede such home rule powers. Article 10, by its 11 terms, applies alike in every municipality in the State. Therefore, 12 Article 10 is a general law not subject to the home rule prohibitions. 13 Article 10 and the proposed implementing regulations are not in 14 conflict with the New York State Constitution or the home rule 15 powers granted to New York local governments. (Case 12-F-0036, 16 In the Matter of the Rules and Regulations of the Board on Electric 17 Generation Siting and the Environment, contained in 16 NYCRR, 18 Chapter X, Certification of Major Electric Generating Facilities, 19 Memorandum and Resolution Adopting Article 10 Regulations 20 (July 17, 2012), at 74–75.

21 Thus, the Municipalities’ assertions regarding cumulative review and improperly overriding

22 Home Rule are incorrect.

23 Direct Testimony of Jason Mulford on Behalf of AGM

24 Q. Please describe AGM’s principal observations of the Hecate Greene Facility and AGM’s

25 solar siting goals.

26 A: According to Mr. Mulford, most of the Facility is sited on acceptable agricultural land for

27 use by the Facility (p. 12, ll. 1–3). Mr. Mulford also states that the Proposed Certificate

28 Conditions identify Hecate Greene’s willingness to minimize and avoid potential impacts

29 to agricultural lands where practicable (p. 26, ll. 5–8), and makes no recommendations to

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 111

1 change any aspects of the Settlement Proposal. Mr. Mulford explains that AGM’s goal

2 for solar projects is to limit the conversion of agricultural areas to no more than 10% of

3 soils classified as mineral soil groups 1-4 (p. 9, ll. 15–19), but acknowledges that this is

4 merely AGM’s solar siting policy as there is no law or regulation expressly authorizing

5 this position (p. 7, ll. 19–21).

6 Q: Does AGM ask anything else of Article 10 applicants developing solar projects in

7 agricultural lands?

8 A: Yes, AGM asks applicants to implement AGM’s Solar Guidelines where applicable (p.

9 10, ll. 8–11). As acknowledged by AGM (p. 10, ll. 11–17), the Settlement Proposal

10 manifests Hecate Greene’s agreement to minimize or avoid construction-related impacts

11 to agricultural resources in accordance with AGM’s Solar Guidelines to the maximum

12 extent practicable (Proposed Certificate Condition 97). Further, Hecate Greene commits

13 to consulting with AGM on reasonable alternatives if deviations from AGM’s Solar

14 Guidelines are required (id.).

15 Q: Please discuss Mr. Mulford’s estimate of the Facility’s potential impacts to farmland and

16 his recommendations addressing those impacts.

17 A: Mr. Mulford asserts, without an accompanying explanation of AGM’s methodology or

18 inputs, that the 379-acre footprint Facility will convert 700 acres of active agricultural

19 lands (p. 20, ll. 20–21). In Mr. Mulford’s view, the solar arrays, ancillary facilities,

20 conservation easements, planted visual screening areas, and Grassland Management

21 Areas all constitute a permanent conversion to agricultural lands (p. 10, ll. 20–23; p. 11,

22 ll.1–3; p. 18, ll. 11–14). AGM estimates that more than 100 acres of mineral soil groups

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 112

1 1-4, which it claims constitutes “14% of the collective proposed agricultural conversion”

2 of the Project Area (p. 12, ll. 3–5). Hecate Greene disagrees with this flawed view.

3 Q. Is AGM’s method of calculating permanent agricultural impacts consistent with Siting

4 Board precedent?

5 A. No. After AGM submitted its direct testimony, the Siting Board issued two orders

6 granting Article 10 Certificates. In those proceedings, the Siting Board rejected AGM’s

7 position that agricultural lands used by solar facilities constitute permanent impacts

8 (Hecate Albany Order at 27; East Point Order at 31–32).

9 Q. Please describe the potential permanent impacts to agricultural resources that could result

10 from the Facility.

11 A. As explained in the Application, the Facility will employ approximately 379 acres of

12 agricultural land for the operational life of the Facility (App. Ex. 4 at 7). However,

13 agricultural use of the land used by the Facility can be restored upon decommissioning of

14 the Facility (id.). Due to the Facility’s lack of significant ground disturbance and limited,

15 low-impact installation methods for the solar arrays, agricultural land will not be

16 significantly affected in the long-term (App. Ex. 22 at 44). To the contrary, it will be

17 preserved, as opposed to other potential disruptive uses. The only permanent loss of

18 agricultural fields during the life of the Facility should be calculated by the disturbance

19 caused by the features that require fill, such as roads, substation areas, and inverter

20 foundations. Accordingly, permanent impacts to prime farmland soils associated with the

21 Facility are limited to approximately 3.09 acres from new gravel roads and approximately

22 0.044 acres from panel posts (Agency Discovery Responses at 29). These calculations

23 are consistent with the recent Siting Board orders noted above.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 113

1 Q: Describe the measures taken by Hecate Greene to avoid, minimize, and mitigate effects

2 to agricultural land.

3 A: Although the Facility is proposed on land that is currently in agricultural use, the Facility

4 has been designed within a consolidated, contained area (App. Ex. 4 at 7). Within the

5 Facility Area, the Facility’s racking system will be constructed using pile-driven methods

6 instead of laying concrete foundations to minimize subsurface ground disturbance (id.).

7 Once the Facility is constructed, a native seed mixture will be used as ground cover to

8 enable soil recovery, replenish soil nutrients, and mitigate soil erosion (id.). The Facility

9 will avoid using pesticides and herbicides, to the extent practicable, as opposed to the

10 present agricultural uses (id.). Hecate Greene will require its construction contractor to

11 hire an AGM reviewed Environmental Monitor, who will oversee construction in general

12 accordance with AGM’s Solar Guidelines (App. Appendix 4-D at 1).

13 At the conclusion of operation, the Facility Area will be substantially returned to

14 its prior condition and be usable for future agricultural uses, as further discussed in the

15 Decommissioning Plan, provided as Appendix 29-A and discussed in Exhibit 29.

16 Importantly, the operation of the Facility will give the soils under the Facility

17 Components the opportunity to recuperate from its historical use as active agricultural

18 land, leaving the possibility that the agricultural practices may resume on improved soil.

19 Additionally, the lease payments made to the landowner from Hecate Greene will provide

20 a stable income and allow for continued agricultural production on nearby fields (Id.).

21 Q: Does AGM make a feasible proposal to further reduce impacts to minimize the Facility’s

22 use of soil groups 1-4 in light of other facility design considerations?

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 114

1 A: No. Mr. Mulford proposes to relocate conservation areas associated with the Facility

2 from Greene County Tax Parcels 71.00-4-3.1 (56.9 acres), 71.00-2-1.11 (86.4 acres),

3 71.00-[4]-13 (85.5 acres) (the “Northern Parcels”) to Greene County parcels 55.00-5-51

4 (31.09 acres), 56.17-1-5 (44.6 acres), 55.16-1-9 (45.1 acres), 56.17-1-1 (3.9 acres), and

5 56.13-2-1 (25 acres) (the “Plank Road Parcels”) (p. 14, ll. 3–18; see also Supplement to

6 the Application (“App. Supp.”) Appendix 4-A). This proposal fails to consider Hecate

7 Greene’s extensive layout design process, which, in addition to making efforts to

8 minimize and avoid potential impacts to, inter alia, vegetative communities, surface

9 water and groundwater, wetlands, protected species, and Facility visibility (see App. Ex.

10 2 at 6–9), seeks strike a balance between preserving community character and agriculture

11 and promoting renewable energy (App. Ex. 4 at 2).

12 Q: How did Hecate Greene develop the current Facility layout, specifically with respect to

13 the Northern Parcels and Plank Road Parcels?

14 A: The initial layout of the Facility was presented in Hecate Greene’s February 2018 Open

15 House (App. Ex. 9 at 4). In that layout, panels were located on both the Northern Parcels

16 and the Plank Road Parcels (see App. Ex. 9, fig.9-2). In response to feedback from the

17 community at the open house that the northern fields south of Farm to Market Road (the

18 Northern Parcels) were the most visually sensitive, Hecate Greene developed a new

19 layout that removed those panels (App. Ex. 9 at 4). This new layout, which included

20 panels on the Plank Road Parcels but not the Northern Parcels (See App. Ex. 9, fig.9-3),

21 was presented to the community and community leadership (App. Ex. 9 at 4). The

22 Village of Coxsackie leadership stated that they were not in favor of the land north of

23 Plank Road being used for solar because it considered that area a logical place for future

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 115

1 residential development (id.; Agency Discovery Responses at 28–30). Hecate Greene

2 honored the Village’s desires, removed panels from the lands north of Plank Road, and

3 designed the current proposed layout, which includes panels on neither the Plank Road

4 Parcels nor most of the Northern Parcels.

5 Q: Are there any other issues with Mr. Mulford’s proposal?

6 A: Yes. In addition to not addressing Hecate Greene’s design efforts that were responsive to

7 community concerns, Mr. Mulford proposes an alternative which recreates more potential

8 impacts. Mr. Mulford’s proposal to relocate the 215-acre area that the Applicant is

9 proposing as part of its NCBP to mitigate for potential adverse modification of threatened

10 and endangered grassland bird habitat to the Plank Road Parcels effectively eliminates

11 the NCBP, because he proposes relocate at least 50 acres of arrays proposed west of

12 Adams Road to the Plank Road Parcels as well (p. 14, ll. 21–23; p. 15, ll. 1–3). The

13 Plank Road Parcels cannot be used both as part of its NCBP and for the placement of

14 solar arrays. This proposal is fatally flawed for several reasons: as Hecate Greene needs

15 the arrays to meet its NYSERDA obligations, adopting Mr. Mulford’s proposal to move

16 the arrays to an area that would otherwise be used for the NCBP would result in at least a

17 loss of at least 112 acres of conservation lands.

18 Additionally, this proposal would likely result in a larger impact to agricultural

19 lands. The arrays west of Adams Road are part of a larger contiguous array area that

20 share setbacks and visual mitigation buffers (see App. Ex. 11, Drawing GCSFA10-C-

21 401). Due to the proximity of the Plank Road Parcels to the Village of Coxsackie, panels

22 located there against the Village’s wishes would likely require extensive screening and

23 mitigation. In contrast, the panels currently proposed west of Adams Road have been

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 116

1 designed with extensive setbacks and vegetative screening. Thus, while opening up 50

2 acres west of Adams Road, more than 50 acres of active agricultural lands in the Plank

3 Road Parcels would be converted to a non-agricultural use.

4 Q: Does the proposed Facility Layout avoid or minimize soil groups 1-4 to the maximum

5 extent practicable?

6 A: Yes. As stated in Hecate Greene’s response to an interrogatory, impacts to these soils are

7 also minimized to the maximum extent practicable through the nature of the Facility

8 components. Permanent impacts to soils are limited to the minimal space that will be

9 occupied by panel posts, the substation footprint, and new gravel roads (Agency

10 Discovery Responses at 29). Of the approximately 118 acres of prime farmland soils that

11 are mapped within the Facility Area, permanent impacts to prime farmland soils

12 associated with the Facility are limited to approximately 3.09 acres from new gravel

13 roads and approximately 0.044 acres from panel posts. The substation footprint will not

14 impact any prime farmland soils (id.). It is not practicable to further avoid or minimize

15 the potential impacts to these soils due to other design constraints such as setbacks and

16 sensitive environmental resources (id.).

17 Q: Describe AGM’s concern regarding the Project impacts on continuing farm operations.

18 A: Mr. Mulford states that AGM cannot recognize the benefits of the Facility to the

19 landowner’s farming operation because it believes the landowner’s average production

20 will decrease and will not recognize the Facility’s potential to temporarily preserve

21 farmland because it believes that “[t]his Farm Operator clearly is changing professional

22 directions, and the Project as described is greatly diminishing the land available for

23 agricultural use” (p. 17, ll. 3–15). AGM holds this belief despite the landowner’s express

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 117

1 statements to the contrary. The primary landowner is a third-generation farmer who has

2 stated that the Facility will keep his family farm viable and allow him to continue

3 farming on his remaining land (App. Appendix 4-E). Paradoxically, AGM has taken the

4 position that it must defend farm operations by taking an adverse position to the farm

5 operator (p. 9, ll. 1–7). Regardless, the landowner’s private business decisions are

6 outside the scope of this proceeding and are irrelevant to the statutory findings the Siting

7 Board must make under Article 10.

8 Q: Please describe AGM’s stance on the conclusions made by the New York State Public

9 Service Commission (“NYSPSC”) in its review of the potential agricultural impacts of

10 achieving the clean energy goals established in the Clean Energy Standard (“CES”) and

11 the CLCPA.

12 A: AGM takes issue with the conclusion in the CES’s State Environmental Quality Review

13 Act (“SEQRA”) Findings Statement that “[i]f 100 percent of [utility-scale solar energy

14 (“USSE”)] projects were to be installed on New York agricultural lands, approximately

15 0.06 percent to 0.16 percent of agriculture lands would be converted to USSE” (p. 17, ll.

16 16–22; p. 18, ll. 1–10; see also Case 15-E-0302, Proceeding on Motion of the

17 Commission to Implement a Large-Scale Renewable Program and a Clean Energy

18 Standard, Appendices to Order Adopting a Clean Energy Standard (Aug. 1, 2016),

19 Appendix G (“CES Findings Statement”) at 19–20). This conclusion accounts for the

20 USSE acreage that would be required to achieve the CES’s “50 by 30” goal that 50% of

21 New York’s electricity would be generated by renewable sources by 2030. AGM asserts

22 that this conclusion is flawed because it assumes that utility scale solar energy

23 development requires a land use requirement ratio of two acres per megawatt (“MW”) (p.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 118

1 18, ll. 9–14). AGM also states that the NYSPSC’s use of Agricultural District acreage to

2 measure agricultural impacts is overgeneralized (p. 18, ll. 15–23, p. 19, ll. 1–14) and that

3 the NYSPSC should revise its conclusion to account for the expanded goals set forth in

4 the CLCPA (p. 19, ll. 15–23; p. 20, ll. 1–13).

5 Q: Since the NYSPSC’s original SEQRA of the CES in 2016, has the NYSPSC

6 supplemented its review in light of goals set forth in the CLCPA.

7 A: Yes. Several months after Hecate Greene submitted its Application, the NYSPSC

8 accepted DPS Staff’s supplemental environmental impact statement for the CLCPA

9 (Case 15-E-0302, supra, Final Supplemental Generic Environmental Impact Statement

10 for the Climate Leadership and Community Protection Act (Sept. 17, 2020) (“CLCPA

11 SGEIS”), accepted in Case 15-E-0302, supra, Resolution Accepting Final Supplemental

12 Generic Environmental Impact Statement (Sept. 17, 2020)).

13 Q: Briefly describe the CLCPA SGEIS and its conclusions on the CLCPA’s potential

14 impacts to agricultural land.

15 A: The CLCPA SGEIS reviews the environmental impacts associated with the expansion of

16 the “50 by 30” goal to a “70 by 30” goal that 70% of New York’s electricity would be

17 generated by renewable sources by 2030. As if in response to AGM’s testimony, the

18 CLCPA SGEIS expressly considers the effects of additional USSE related to the 70 by 30

19 goal on agricultural land use (CLCPA SGEIS at 1-10). More specifically, the CLCPA

20 SGEIS evaluated up to an incremental 6,300 MW of USSE to meet the “70 by 30” goal.

21 Id. at x. The CLCPA SGEIS concluded that “[g]iven the minor conversion of land

22 compared to available crop and pastureland, project-specific agency guidelines, and

23 restoration following decommissioning, significant adverse impacts on land use and land

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 119

1 cover would not be expected from incremental utility-scale solar development.” Id. at 5-

2 2. It also found that “land requirements for the expansion of the 50 by 30 goal to 70 by

3 30 using additional utility-scale solar represent approximately 0.2 to 0.5% of the state’s

4 cropland and pastureland,” and that “utility-scale solar projects can provide long-term

5 preservation of agricultural land as an alternative to commercial development, and at the

6 end of the operation life of a project the land can be returned to its former use.” Id.

7 Q: In making these calculations, does the CLCPA SGEIS assume a land use requirement

8 ratio of 2 acres/MW?

9 A: No. The CLCPA SGEIS recognizes that prior SEQRA analyses assumed a land use

10 requirement ratio of 2 acres/MW, while current land requirement assumptions from

11 NYSERDA estimate an average requirement of 5 acres/MW (CLCPA SGEIS at 5-2; see

12 also New York Solar Guidebook for Local Governments, NYSERDA (2020), at 99).

13 Accordingly, the CLCPA SGEIS’s land use calculations assume a land use requirement

14 of 5 acres/MW (CLCPA SGEIS at 5-2).

15 Q: Does the CLCPA SGEIS address AGM’s claim that Agricultural District acreage is an

16 overgeneralized measurement when calculating Statewide agricultural impacts (p. 18, ll.

17 15–23, p. 19, ll. 1–14)?

18 A: Yes. As mentioned previously, the CLCPA SGEIS concludes that “the land requirements

19 for the expansion of the 50 by 30 goal to 70 by 30 using additional utility-scale solar

20 represent approximately 0.2 to 0.5% of the state’s cropland and pastureland” (emphasis

21 added) (CLCPA SGEIS at 5-2). Reflecting data obtained by the United States

22 Department of Agriculture’s 2019 Cropland Data Layer, the CLCPA SGEIS assumes

23 there are 6,118,300 acres of cropland/pasture land type in the State (CLCPS SGEIS at 3-

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 120

1 2, Ex. 3-1) and that “[o]f this total farmland, approximately 60% is used for crops, and

2 the remainder is in woodland, pastureland, conservation, and other uses” (CLCPA SGEIS

3 at 3-2). These acreages closely mirror those suggested by AGM: there are “6.6 million

4 acres actually farmed” (p. 18, ll.17–20) and “only 3 million of NYS agricultural districts

5 acres are cropped currently” (p. 19, ll. 1–2).

6 Accordingly, the CLCPA SGEIS conclusion that USSE development may potential

7 impact 0.2 to 0.5% of the State’s cropland/pastureland encompasses both AGM’s

8 recommendations that the land requirement ratio be updated and that total acreage of

9 Agricultural Districts not be used.

10 Q: What are AGM’s issues with the proposed Net Conservation Benefit Plan (“NCBP”)

11 A: Mr. Mulford claims that conservation easements limiting mowing activities between

12 April 23 through August 15 do not allow for agricultural operations to take place on those

13 lands, and as such considers the 215-acre Conservation Easement Area an intentional

14 abandonment of agricultural lands (p. 21, ll. 15–17; p. 22, ll. 7–9). According to Mr.

15 Mulford, “[g]rass harvested this late in the growing season is to [sic] mature and does not

16 offer a valuable forage for a hay crop, leaving an unmarketable product” (p. 22, ll. 9–10).

17 Mr. Mulford requests the relocation of Grassland Management Areas GMA-4 and GMA-

18 6 to be relocated within other nonagricultural or less productive agricultural lands (p. 23,

19 ll. 21–23).

20 Q. Can Hecate Greene commit to relocating GMA-4 and GMA-6 to nonagricultural or less

21 productive agricultural lands?

22 A. Not at this time. As was the case in Mohawk Solar, as discussed above, Hecate Greene is

23 continuing to negotiate the specifics of its final NCBP (Mohawk Order at 39). And, as in

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 121

1 Mohawk, AGM will have an opportunity to comment on whether the final NCBP meets

2 the Article 10 standard in regard to agricultural impacts (Mohawk Order at 39). Further,

3 if adopted, the Alternative Layout will alter the conservation areas. Hecate Greene can

4 introduce AGM’s concerns and proposal into those discussions; however, it cannot

5 determinatively decide now to relocate those Grassland Management Areas now.

6 Direct Testimony of Geoffrey M. Goll on Behalf of Sleepy Hollow

7 Q. Sleepy Hollow states that there are existing and documented issues of sediment loads,

8 including nutrient components, that are direct contributors to nuisance aquatic vegetation

9 and periodic Harmful Algal Bloom development in Sleepy Hollow Lake (p. 8, l. 156–p.

10 9, l. 165). How will the Facility affect these existing issues?

11 A. Based on the comprehensive stormwater runoff analyses conducted for the Facility, the

12 Facility is anticipated to result in a reduced volume of stormwater runoff, less

13 sedimentation, and a reduction in agricultural chemicals leaving the Facility Area and

14 affecting water quality in Sleepy Hollow Lake in comparison to current conditions.

15 The reduction in stormwater volume is based on comprehensive stormwater

16 analyses conducted, in part, for the Facility’s SWPPP. The most recent sediment load

17 analyses, completed using United States Department of Agriculture, Natural Resources

18 Conservation Service’s Revised Universal Soil Loss Equation 2 model (“RUSLE2”),

19 identified a 74% sediment load reduction from the Facility Area during operations,

20 compared to current conditions (Ex. HGR-11 at 2). In addition, approximately 379 acres,

21 or 46% of the Facility Area, will be taken out of active agricultural operations for the life

22 of the Facility, which will substantially reduce the amount of agricultural chemicals that

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 122

1 will be used and therefore could leave the Facility Area in comparison to existing

2 conditions.

3 As explained in the August 31, 2020 letter to Sleepy Hollow, the change of

4 approximately 379 acres of mixed agricultural uses to a solar facility dominated by warm

5 and cool season grasses will lead to the predicted decrease in sediment and agricultural

6 chemical transport from the area on which the Facility will be built. Thus, the Facility

7 will not adversely affect the quality of Sleepy Hollow Lake and, while not required to do

8 so, it will likely contribute to improved water quality to Sleepy Hollow Lake (HGR-12 at

9 1, 4, 9).

10 Q. Please address Sleepy Hollow’s concerns about the “current stage of the project and the

11 lack of detail that is provided.” (p. 9, ll. 179–182).

12 A. Sleepy Hollow fails to understand what is required for an Article 10 application during

13 the 12-month review period. Final plans and drawings are filed as Compliance Filings

14 after certification (see 16 NYCRR Part 1002; see also Proposed Certificate Conditions

15 57–58; Case 17-F-0128, supra, Order Granting Certificate of Environmental

16 Compatibility and Public Need, with Conditions (Nov. 19, 2020), Certificate Conditions,

17 41–59). Nevertheless, the Application provides sufficient detail to evaluate the Facility’s

18 predicted impacts. Hecate Greene complied with Article 10 and the Stipulations, as

19 evidenced by the Chair deeming the Application compliant with Article 10 (see Case 17-

20 F-0619, supra, Letter from Chair Rhodes to Sam M. Laniado, Esq. Regarding

21 Application Compliance (Sept. 2, 2020)). The Application provided a preliminary

22 SWPPP and detailed engineering plans of grading and stormwater facilities (App.

23 Appendix 23-B; App. Appendix 11-A, GCSFA10-C-100–110). Hecate Greene also

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 123

1 conducted additional analysis to specifically examine the runoff implications of the

2 Facility that could potentially impact Sleepy Hollow Lake (Ex. HGR-11 at 1, 3).

3 Preliminary stormwater calculations completed for the SWPPP demonstrate a

4 reduction in peak rates of runoff of 26%, 19%, and 32% for the 1-, 10-, and 100-year

5 storm events, respectively (App. Ex. 23 at 14). Changing from active crop rotation to a

6 solar facility with herbaceous ground cover, which will be maintained to provide soil

7 stabilization for the life of the Facility, will improve the stability of soils throughout the

8 Facility Area and result in a reduction of point-source and non-point source pollutants

9 leaving the Facility Area. As noted above, while not required by Article 10, the

10 installation of the Facility should be considered a positive action (benefit) to the

11 impairments resulting in the New York State Section 303(d) listing of Sleepy Hollow

12 Lake because of the change in land use from active agricultural rotation to the maintained

13 grassland cover will reduce sediment and nutrient loading into Sleepy Hollow Lake

14 tributaries within the Facility Area. Under the current condition, the majority of the site

15 is maintained in active row crops, which result in bare ground for 6 or more months of

16 the year. It is well documented that this form of agriculture contributes to nutrient

17 loading and water quality impairments, similar to those occurring in Sleepy Hollow Lake

18 (see App. Ex. 23 at 11–13).

19 Q. Please discuss Sleepy Hollow’s speculative statements regarding potential negative

20 impacts to Sleepy Hollow Lake.

21 A. Without citing evidence, Sleepy Hollow speculates the following:

22 But, if flooding is worsened and the stormwater runoff and 23 baseflow of the stream contains increased sediment and nutrient 24 loads, it is the [Sleepy Hollow Lake Association of Property 25 Owners] and the community that they represent that will end up

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 124

1 paying the price in increased lake monitoring, management, 2 drinking water treatment costs, reduced recreational use of the 3 lake, and depressed property values. And, if events such as 4 increased harmful algae blooms are experienced, the cyanotoxins 5 produced can threaten the Sleepy Hollow Lake ecosystem and the 6 health, well-being and quality of life of the community (p. 10, ll. 7 199–205 (emphasis added)). 8 9 Sleepy Hollow ignores, however, that the Application and additional runoff analysis

10 demonstrate that these hypothetical negative impacts are not anticipated to occur (App.

11 Ex. 23 at 11–14; App. Appendix 23-B at 1.6–1.8; Ex. HGR-12 at 4, 7, 34). Further,

12 Sleepy Hollow does not acknowledge the positive benefits that will result from the

13 change in land use at the Facility Area for the duration of the Facility’s useful life.

14 Currently, the Facility Area is farmed and therefore subject to extensive fertilizer and

15 herbicide use (App. Ex. 23 at 11–14). The Facility does not require those materials to

16 nearly the extent that a farming operation does. Fertilizers will only be applied as

17 necessary at the start of commercial operation to ensure vegetation establishment and re-

18 vegetation efforts are successful, and herbicides will only be rarely used (Ex. HGR-12 at

19 35; App. Ex. 22 at 22; App. Appendix 4-D at 12).

20 As described in Application Exhibit 22 and Exhibit HGR-11, selective herbicide

21 use is necessary in management situations where topography, access, growth rate, species

22 specific factors, worker safety, or environmental/social concerns limit the potential for

23 control of invasive species by physical or mechanical methods (see also App. Appendix

24 22-D, Appendix B). Herbicide use is expected to be limited and used only as necessary

25 to control invasive and other undesirable plant species that are not effectively removed

26 using manual/mechanical removal techniques (Ex. HGR-11 at 3; App. Appendix 22-D at

27 7).

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 125

1 Applications of herbicide will be applied by a state-licensed professional (Ex.

2 HGR-11 at 34, 38; App. Appendix 22-D 7). The selected applicators will be provided

3 information regarding the invasive species present on-site and be requested to prepare a

4 Control Plan to target the specific species and infected areas of the Facility Area (Ex.

5 HGR-11 at 34; App. Appendix 22-D; App. Ex. 22 at 20). Hecate Greene will review and

6 approve the Control Plan prior to implementation (Ex. HGR-11 at 34). All state and

7 federal laws will be adhered to during the herbicide treatment process (Ex. HGR-11 at

8 34; App. Appendix 22-D at 7). Spot spraying for noxious weeds is allowed during the

9 restriction period of March 1st through July 15th, the primary nesting season for

10 migratory birds (Ex. HGR-11 at 34).

11 Herbicide treatment may include foliar applications with sprayers, cut and treat,

12 and stem injection (id.). The Control Plan will include monitoring and reporting on the

13 need to repeat herbicide treatment (id.). Herbicides will be applied according to the

14 product’s label (id.). Herbicide treatments will largely be focused on the areas where no

15 vegetation is planned, such as parking, gravel pads, access roads, substations, and other

16 equipment footings (id.). The Siting Board has approved this type of selective herbicide

17 use in prior Article 10 decisions (see, e.g., Mohawk Order, Appendix B at 8–9, 16 (SEEP

18 Guide provision permitting herbicide use in certain areas).

19 Q. Please address Sleepy Hollow’s argument that minimum water quality protection

20 regulations will not provide adequate protection for Sleepy Hollow Lake (p. 10, l. 206–p.

21 11, l. 223).

22 A. Sleepy Hollow fails to address the protections provided in the Proposed Certificate

23 Conditions. The protections for Sleepy Hollow Lake are not limited to water quality

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 126

1 protection regulations. The Proposed Certificate Conditions contain numerous provisions

2 that will provide protection to Sleepy Hollow Lake (see, e.g., Proposed Certificate

3 Conditions 93 (regarding compliance with 6 NYCRR Part 192 and establishing

4 maximum wood chip depths away from wetlands and streambanks), 96 (regarding

5 restoration of disturbed areas, ruts, and rills to original grades and conditions with

6 permanent re-vegetation and erosion control), 107 (requiring the Applicant to use erosion

7 and sediment control best management practices), and 117 (outlining practices to be used

8 during any in-stream work)). Long-term vegetation maintenance activities that will also

9 contribute to water quality protection are described in Exhibit HGR-11, Attachment 3.

10 Preservation of natural areas, minimizing clearing and grading, and reduction of

11 impervious cover have been considered in development of the Facility layout and design

12 (App. Appendix 23-B at 1.3).

13 Further, the Facility’s proposed stormwater management system has been

14 designed to take advantage of overland runoff flow through vegetated areas, vegetated

15 swales, and other features, as outlined in the SWPPP, to meet State water quality

16 standards for sediment concentrations in stormwater runoff from the Facility Area (App.

17 Ex. 23 at 13). Indeed, the SWPPP identifies a reduction, not an increase, in velocity and

18 volume of water discharged from the Facility Area as a result of the stormwater features

19 that will be constructed for the Facility and the change from row crops to meadow cover

20 (see App. Appendix 23-B, Attachment J). The proposed meadow plantings under the

21 solar panels will provide a significant improvement compared to present day conditions

22 (Ex. HGR-11 at 3; App. Appendix 23-B at 1.7.2). Stormwater controls and calculations

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 127

1 are included in the attachments to the SWPPP (Appendix 23-B) and in Appendix 11-A of

2 the Article 10 application.

3 As noted above, the reduction of stormwater runoff during the operational phase

4 will also protect Sleepy Hollow Lake (App. Ex. 23 at 15–16). Because the volume of

5 runoff will be reduced, there will be an incremental reduction in stream flows in terms of

6 total volume and flashiness (id. at 13). These reductions in stream flows for the 1-, 10-

7 and 100-year storm will contribute to a reduction in the potential for stream bank erosion

8 within and downstream of the Facility Area (id.). Stream bank erosion is one of a

9 number of factors within stream watersheds that can contribute to elevated suspended

10 sediment levels (id.). Because the Facility will result in reduced stormwater runoff, the

11 Facility will likely contribute to a reduction in stream bank erosion, resulting in a

12 reduction in suspended sediment concentrations and therefore an improvement in water

13 quality in Murderers Creek and other tributaries associated with the Sleepy Hollow Lake

14 Watershed within and downstream of the Facility Area (id.).

15 Further, BMPs will be used to control erosion and sedimentation during the

16 construction effort, with reseeding and stabilization occurring prior to removal of the

17 temporary features (Id. at 14; see also App. Ex. 2 at 6–10). Stream channel restoration

18 will occur where underground electrical features are placed and around installed culverts

19 (App. Ex. 23 at 14). During construction, work areas and access routes may be

20 improved, as necessary, to allow construction access (App. Appendix 11-A, GCSFA10-

21 C-100. Sleepy Hollow fails to refute any of these protective measures.

22 Q. Sleepy Hollow recommends the development of a comprehensive water quality

23 monitoring plan (p. 11, ll. 224–230). Is this necessary?

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 128

1 A. No. The Application and runoff analysis performed by Hecate Greene demonstrate that

2 the Facility will not negatively impact the water quality of Sleepy Hollow Lake (App. Ex.

3 23 at 9, 13–14; Ex. HGR-12 at 1–2, 8–9). Sleepy Hollow provides no evidence to the

4 contrary. It would be a waste of Facility resources to implement a totally unnecessary

5 monitoring program.

6 Q. Do you agree with Sleepy Hollow’s recommendation to implement test plots to test seed

7 mixes (p. 13, ll. 266–268)?

8 A. No. The Proposed Certificate Conditions require Hecate Greene to achieve 80% of

9 vegetative cover (Proposed Certificate Conditions 95, 107). Additionally, all restored

10 areas shall be monitored for 5 years or until 80% cover of native species has been

11 reestablished over all portions of the replanted area, unless, in consultation with DEC, the

12 invasive species baseline survey indicates a smaller percentage of native species existed

13 prior to construction (Proposed Certificate Condition 109(b)). The choice of seed mixes,

14 which are discussed in the Preliminary Vegetation Maintenance Plan in Exhibit HGR-11

15 Attachment 3, will be based on institutional knowledge and soil conditions. There is no

16 need for test plots.

17 Q. Please address Sleepy Hollow’s assertion about compaction (p. 14, ll. 277–282).

18 A. In addition to the soil stabilization and seed mix selection measures noted above,

19 construction activities will be planned to reduce the potential for soil compaction in the

20 PV arrays. These include selection of upland work areas when soils are soft or wet from

21 recent storm events, and use of lighter equipment to the maximum extent practicable (Ex.

22 HGR-12 at 3). Construction travel lanes also will be established and limited to gravel or

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 129

1 grassed roads/pathways to the maximum extent practicable (App. Appendix 11-A,

2 GCSFA10-C-100).

3 In addition, Hecate Greene’s stormwater and vegetation management plans

4 include the following strategies that provide measures to avoid/mitigate soil compaction:

5 • Establishment of roads and construction traffic patterns at the start of 6 construction to limit compaction; 7 • Limiting access to the PV array interior to low ground pressure 8 equipment; 9 • Establishing wide PV panel row spacing consistent with industry 10 guidelines to avoid PV panel effects to stormwater sheet flow; 11 • Selection of low-growing, shade-tolerant, mat forming seed mixes for 12 installation within the PV array; 13 • Performing seeding and soil stabilization efforts during and post 14 construction; 15 • Periodic inspections during construction and operation; 16 • Location-specific application of topsoil, fertilizer, soil amendments, and 17 seed during operations; and 18 • Additional erosion and sediment control measures including double silt 19 fence, straw wattles, vegetative filter strips, and rip rap in target areas (Ex. 20 HGR-12 at 7, 8, 34).

21 During site restoration, upon completion of the construction site activity, if

22 locations are identified where soil compaction would be prohibitive of revegetation, the

23 soil will be loosened or aerated following the DEC guideline for deep-ripping and

24 decompaction prior to reseeding and associated erosion control installation (Ex. HGR-12

25 at 28, 34). Once the vegetation is established the root masses will improve infiltration of

26 water into the soil.

27 Further, the selection of an appropriate seed mix for permanent stabilization that

28 is low growing (not to exceed 2 feet in height) will reduce mowing regime requirements

29 that might cause some compaction (Ex. HGR-12 at 5, 8, 28–29, 32). Mowing will occur

30 on a routine basis (expected to occur one or more times per year); however, the frequency

31 may vary depending on growing conditions and timing of establishment of the permanent

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 130

1 ground cover (id. at 7, 32). Mowing would only take place a day or more after a

2 significant rainfall event (id. at 32). Areas outside of the solar array security fence will

3 be mowed infrequently to control regrowth (id.). The vegetation outside of the security

4 fence will be inspected each year and mowing frequency or selective removals will be

5 carried out when necessary (id.). Sleepy Hollow failed to address any of these measures.

6 Q. Please address Sleepy Hollow’s concern regarding stream destabilization.

7 A. Sleepy Hollow asserts that stabilizing the upland landscape is not “enough” after a stream

8 becomes destabilized (p. 14, ll. 287–288). Certificate Condition 117 describes

9 requirements for stream restoration, which includes grading measures for all disturbed

10 stream banks below the normal high-water elevation. All other areas of soil disturbance

11 above the ordinary high-water elevation or elsewhere will be stabilized with natural fiber

12 matting, seeded with an appropriate perennial native conservation seed mix, and mulched

13 with straw within 2 days of final grading (Proposed Certificate Condition 117. Mulch

14 shall be maintained until suitable vegetation cover is established (Id. at 117(a)(iii)).

15 Destroyed bank vegetation shall be replaced with shrub willow or silky dogwood

16 planting, native trees, or other suitable native species (id.).

17 Q. Do you agree with Sleepy Hollow’s assertion that it must be named as a partner in the

18 development of the SWPPP and have approval authority over stormwater management

19 (p. 15, ll. 318–321)?

20 A. No. The SWPPP is subject to DEC approval (Proposed Certificate Condition 51).

21 Sleepy Hollow is not a regulatory agency and does not have any approval authority to

22 govern Hecate Greene’s stormwater management activities. Nor does Article 10

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 131

1 authorize the Siting Board to delegate any NYS approval authority to a private residential

2 organization.

3 Q. Sleepy Hollow claims that the Siting Board must consider the cumulative impacts of the

4 Facility and the Flint Mine Solar Project on Sleepy Hollow Lake (p. 16, ll. 331–334). Is

5 this accurate?

6 A. No. On the advice of counsel, the only cumulative impacts required for Siting Board

7 consideration are air impacts and the impacts of related facilities with other Facility

8 components (see PSL § 168(2), (2)(d)). In addition, Hecate Greene agreed to, and did,

9 evaluate the potential cumulative impacts of certain solar facilities on grassland birds in

10 its Stipulations (Study Stipulations 3(a)(3), 22(d)(10)). Thus, Sleepy Hollow’s statement

11 that “[t]he Siting Board must look to the cumulative impacts of both large-scale industrial

12 energy developments and their impact on the water quality of Sleepy Hollow Lake . . .” is

13 incorrect as a matter of law (p. 16, ll. 331–334). Nevertheless, Hecate Greene explained

14 in a response to an interrogatory that both Hecate Greene’s and Flint Mine’s application

15 materials demonstrate a reduction in the volume of runoff expected at the facilities, which

16 will reduce runoff into Sleepy Hollow Lake tributaries (Municipalities IRs at 1).

17 Therefore, cumulative impacts to Sleepy Hollow Lake are not anticipated.

18 Q. Please discuss Sleepy Hollow’s comments and proposed edits to the Proposed Certificate

19 Conditions (Ex. GG-DT-4 at 2–3).

20 A. Certificate Condition 51 (referred to as 48 by Sleepy Hollow)1: Sleepy Hollow requests

21 that the Condition be revised so that it must be provided with copies of the SWPPP and

22 the soil erosion and sediment control plan, and have a condition stipulated that the Sleepy

1 It appears that Sleepy Hollow misnumbered the Certificate Conditions, so Hecate Greene has attempted to correlated its comments to the correct Conditions. 96

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 132

1 Hollow is provided ability to review and make comment (Ex. GG-DT-4 at 2). The final

2 SWPPP and other Information Reports and Compliance Filings will be publicly

3 available; therefore, there is no need to add a requirement to provide copies to Sleepy

4 Hollow. As discussed above, Sleepy Hollow’s proposal to intrude upon DEC’s approval

5 authority is unnecessary and not authorized under the law.

6 Certificate Condition 65 (referred to as 62 by Sleepy Hollow): Sleepy Hollow

7 requests that the Condition be revised (for the final Vegetation Management Plan for the

8 Facility) so that it is more detailed, like Certificate Condition 61 (for the Final Invasive

9 Species Management Plan) for control of invasive species for the entire life of the

10 Facility (Ex. GG-DT-4 at 2). Sleepy Hollow does not provide any substantive edits and it

11 is unclear what it is requesting; therefore, Hecate Greene cannot agree to edit this

12 Condition.

13 Certificate Condition 66 (referred to as 63 by Sleepy Hollow): Sleepy Hollow

14 requests that the Condition be revised so that the Inadvertent Return Plan includes a

15 notification procedure that includes the immediate notice to Sleepy Hollow, including the

16 ability to provide site inspections by Sleepy Hollow and their designation representatives

17 to evaluate the extent of the damage (Ex. GG-DT-4 at 2). Horizontal Directional Drilling

18 is not anticipated to be needed and therefore it is unlikely that Hecate Greene will need to

19 submit an Inadvertent Return Plan (see SEEP Guide § 3.12). Hecate Greene can agree to

20 add Sleepy Hollow to DPS and DEC for notifications required in the SEEP Guide (id.).

21 Hecate Greene cannot, however, agree to allow Sleepy Hollow onto the site to conduct

22 “inspections” as it would be unlawfully usurping and interfering with the authority of

23 State agencies. In addition, it cannot be invited onto the site due to safety concerns.

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 133

1 Certificate Condition 67 (referred to as 64 by Sleepy Hollow): Sleepy Hollow

2 requests that the Condition be revised so that, under the Spill Containment and

3 Countercontrol Measures (“SPCC”) Plan, notice must be provided to Sleepy Hollow in

4 the event of chemical spills and it be allowed to conduct site inspections (GG-DT-4 at 2).

5 The SPCC Plan is required to be consistent with DEC Spill Reporting and Initial

6 Notification Requirements Technical Field Guidance (Proposed Certificate Condition

7 67), and Hecate Greene must comply with applicable DEC reporting requirements (SEEP

8 Guide § 3.5(2)(d)); therefore, additional notice in the Certificate Condition is not

9 required. And, again, Hecate Greene cannot agree to allow Sleepy Hollow onto the site

10 to conduct its own inspections as explained above.

11 Certificate Condition 70 (referred to as 67 by Sleepy Hollow): Sleepy Hollow

12 requests that the Certificate Condition be revised so that it “be provided with copies of

13 any [wetland] mitigation plan for review to ensure that such mitigation will protect and

14 improve the water quality of Sleepy Hollow Lake” (Ex. GG-DT-4 at 2). The preparation

15 and regulatory review of the Wetland Mitigation Plan (Proposed Certificate Condition

16 108) is according to DEC regulations, i.e., to compensate for impacts to wetlands, not to

17 “protect and improve the water quality” of a specific body of water. The Wetland

18 Mitigation Plan will be publicly available through the Compliance Filing process.

19 Therefore, Hecate Greene does not agree to this suggested revision.

20 Certificate Condition 81 (referred to as 77 by Sleepy Hollow): Sleepy Hollow

21 requests that the Condition be revised so that it is included as a party that will attend the

22 pre-construction meeting (Ex. GG-DT-4 at 2). The State agencies are aware of Sleepy

23 Hollow’s concerns and can consider them as part of their enforcement of the Certificate

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 134

1 Conditions and the law. And, as discussed above, Sleepy Hollow cannot be allowed on

2 site. Therefore, Hecate Greene does not agree to this suggested revision.

3 Certificate Condition 82 (referred to as 79 by Sleepy Hollow): Sleepy Hollow

4 requests that the Condition be revised so that any changes to the SEEP also be provided

5 to all Intervenors that are part of this process and appear to request approval authority for

6 such changes (Ex. GG-DT-4 at 2). Sleepy Hollow claims that “[i]t is not enough that the

7 DPS should be given the authority to determine if the impacts are substantial enough to

8 impact downstream receiving resources, such as Sleepy Hollow Lake” (id.). This

9 Condition, however, is consistent with Siting Board precedent (see, e.g., Hecate Albany

10 Order, Appendix A, Certificate Condition 76; East Point Order, Appendix A, Certificate

11 Condition 46) and 16 NYCRR § 10002.2(j). In addition, Sleepy Hollow ignores that it

12 would have the opportunity to comment on changes referred to the Siting Board

13 (Proposed Certificate Condition 82(b)(iii)). Further, Sleepy Hollow’s criticism of DPS’s

14 authority is misplaced. As the Condition states, DPS determines whether changes “are

15 likely to result in any significant adverse environmental impacts in comparison to such

16 impacts as proposed or approved or the identification of an adverse environmental impact

17 not included in the Application” (Proposed Certificate Condition 82(a)). The Application

18 has not identified any impacts to Sleepy Hollow Lake other than positive benefits;

19 therefore, if a change to the approved SEEP or equivalent documents could cause

20 significant adverse impacts to Sleepy Hollow Lake it would be referred to the Siting

21 Board and Sleepy Hollow could comment on it.

22 Certificate Condition 86 (referred to as 83 by Sleepy Hollow): Sleepy Hollow

23 requests that the Condition be revised to include Sleepy Hollow and it designated

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 135

1 professionals on the invitation to monthly site-compliance inspections (GG-DT-4 at 2).

2 Unlike DPS, the party with authority to request such inspections (PSL § 168(5)), Sleepy

3 Hollow does not have any jurisdiction over Hecate Greene’s compliance with the

4 Certificate Conditions and other legal requirements and commitments and cannot be

5 delegated such authority under PSL § 172.. Therefore, Hecate Greene does not agree to

6 this suggested revision.

7 Certificate Condition 91 (referred to as 88 by Sleepy Hollow): Sleepy Hollow

8 states that “[t]he basis for the maximum timeframe of 21 days for stockpiles is not

9 provided. It is important the any topsoil stockpiles be placed and protected in a manner

10 that maintains the biological activity of the soil. This condition should also include the

11 prohibition of exportation of any topsoil for any reason” (GG-DT-4 at 3). Hecate Greene

12 does not anticipate the need for topsoil stockpiles because there is little grading required

13 for the Facility and any minor excess topsoil will be spread nearby. Nevertheless, Hecate

14 Greene added a time limit for topsoil stockpiles during the negotiations of the Certificate

15 Conditions. Sleepy Hollow does not provide any evidence that biological activity of soils

16 is affected by stockpiling and therefore its request is unsupported. In addition, topsoil

17 will not be exported; rather, any excess topsoil from agricultural areas will be spread

18 onsite (see Proposed Certificate Condition 110(d)). Thus, no changes to this Condition

19 are required.

20 Certificate Condition 95 (referred to as 92 by Sleepy Hollow): Sleepy Hollow

21 requests that the Condition be revised so that the phrase “implement all practical

22 measures” be replaced with “the maximum extent practicable” (Ex. GG-DT-4 at 3).

100

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 136

1 Sleepy Hollow’s request would make the Condition nonsensical and therefore will not be

2 adopted.

3 Certificate Condition 103: Sleepy Hollow requests that the term “blasting” be

4 removed because it is prohibited (Ex. GG-DT-4 at 3). Hecate Greene has no objection to

5 this request; blasting is prohibited by Certificate Condition 76.

6 Certificate Condition 109 (referred to as 106 by Sleepy Hollow): Sleepy Hollow

7 appears to request that the Condition be revised to include a buffer for federal wetlands

8 (GG-DT-4 at 3). The “associated State-regulated 100-foot adjacent areas” are included

9 here because New York State also regulates 100-foot buffers around State-regulated

10 wetlands. USACE does not require a specific buffer around its jurisdictional wetlands.

11 Impacts to USACE wetlands will also be addressed in Hecate Greene’s Clean Water Act

12 § 404 permit. Sleepy Hollow’s recommendation, therefore, is improperly overreaching

13 into federal authority and should be rejected.

14 Q. Please discuss Sleepy Hollow’s comments and proposed edits to the SEEP Guide.

15 A. Section 2.2 (Ex. GG-DT-4 at 3): Issues regarding compaction, the establishment of

16 vegetative cover, and “test plots” have been addressed above. Hecate Greene also

17 reiterates that Sleepy Hollow has no lawful authority, and cannot be delegated such

18 authority, to enter the site to inspect stormwater control and soil erosion and sediment

19 control measures. DPS and DEC are specifically authorized to monitor and enforce

20 Certificate Conditions within their respective jurisdictional spheres.

21 Section 3.2 (Ex. GG-DT-4 at 3): As discussed above, a water quality monitoring

22 program for Sleepy Hollow Lake is not necessary; Hecate Greene has demonstrated that

23 runoff will be reduced and Sleepy Hollow does not provide any evidence to the contrary.

101

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 137

1 Sleepy Hollow also requests to be included in the “procedure for providing NYSDPS

2 Staff, AGM, DEC, and the Town with construction look ahead schedules indicating

3 construction activities and location schedules, including a procedure for providing

4 scheduling updates.” As noted above, Sleepy Hollow does not have any lawful

5 jurisdiction related to construction activities and oversight thereof; therefore, Hecate

6 Greene rejects this suggestion.

7 Section 3.3 (Ex. GG-DT-4 at 4): Sleepy Hollow suggests that it “must be included

8 as a party to be included in the facility communication and complaint resolution plan.” It

9 wants access to complaints reported. The Final Complaint Resolution Plan provides the

10 administrative process for the public to register complaints related to the Facility

11 (Proposed Certificate Condition 41). Sleepy Hollow appears to want to usurp the lawful

12 authority of DPS to oversee compliance with the Certificate Conditions (PSL § 168(5)),

13 as it does not want “to rely upon reporting of violations necessarily solely to the

14 appropriate regulatory authorities or initiate legal action.” The Facility Communications

15 Plan merely provides the mechanisms for DPS to communicate with the Certificate

16 Holder regarding compliance and emergencies. Therefore, Hecate Greene rejects Sleepy

17 Hollow’s proposals here.

18 Section 3.5 (Ex. GG-DT-4 at 4): Compaction issues have been addressed above.

19 Section 3.11 (Ex. GG-DT-4 at 4): Sleepy Hollow suggests that the SEEP Guide

20 must include an outline of the Final Geotechnical Engineering Report. Sleepy Hollow

21 appears to misunderstand the purpose of the SEEP Guide, which is to provide guidance

22 for the preparation of the SEEP, which will be provided as a Compliance Filing. As

23 contemplated by the Certificate Conditions, more geotechnical work may be necessary

102

CASE 17-F-0619 Hecate Greene Rebuttal Testimony 138

1 (Proposed Certificate Condition 52); it is not appropriate to submit a final report with the

2 SEEP Guide.

3 Section 3.12: Issues regarding a potential Inadvertent Return Plan are addressed above.

4 Q. Does this conclude your testimony?

5 A. Yes.

103

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2 MS. FRIEDRICHSEN: Okay, thank you

3 very much Judge. Hopefully, everyone can hear me

4 okay. I sometimes struggle with the microphone on my

5 computer. So I will try speak nice, slowly, and

6 carefully, and if you cannot understand me please let

7 me know. So this is a new experience here for all of

8 us. I intend to ask a series of questions that are

9 pretty much just confirmatory with regard to

10 materials that are in several of the exhibits, so I

11 will indicate the exhibit that I am referring to as

12 well as try and also give the page numbers and other

13 citations. My question is whether or not I should

14 also attempt to share the documents at the same time

15 or if my sort of oral description of where we are is

16 -- is good enough. And also I anticipate that

17 probably because we are asking questions with regard

18 to exhibit 22 and grassland bird species and issues

19 surrounding that that probably Patrick Green is -- is

20 going to be the person we ask those questions of. So

21 Judge, should I share anything or -- or counsel?

22 A.L.J. COSTELLO: I -- I believe,

23 unless I hear otherwise, if somebody has a strong

24 feeling otherwise, I don’t think we need it to be

25 shared. Everybody should have access to these 140

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2 documents. We just may have, especially with respect

3 to exhibit 22, give the people a little time to get

4 to the place in the document to which you're

5 referring. But unless someone sees an absolute need

6 to have them shared, I think we have access and

7 everyone has to them, and we can just proceed with

8 your description of the documents.

9 CROSS EXAMINATION

10 BY MS. FRIEDRICHSEN:

11 Q. Okay, great. So as indicated in

12 our issues list, the first thing I would like to ask

13 a few questions about is exhibit number 31, which is

14 revised application exhibit 22, which was submitted

15 in March of 2020 after an initial deficiency letter

16 and specifically section G on avian resources and

17 section E on threatened and endangered species. And

18 I will start with page 24, which is where that

19 section G is located. So my -- my first question for

20 the panel is that the -- this exhibit, exhibit 22,

21 indicates that long-term surveys of grassland bird

22 species in the area have resulted in the detection of

23 threatened and endangered species in the facility

24 area. And this includes the short-eared owl and the

25 northern harrier, correct? 141

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2 A. (Green) This is Pat Green.

3 That's correct.

4 Q. Okay, thank you so moving to

5 section H, page 26. Again, this is a similar sort of

6 confirming question based on those surveys.

7 Therefore, it's known that federally or state-listed

8 threatened and endangered species, including the

9 short-eared owl and the northern harrier have the

10 potential to occur and have been observed in the

11 facility area, correct?

12 A. Pat Green, yes, that's correct.

13 Q. Great, thank you. And so, with

14 regard to those species, is -- is the case that

15 supporting habitat and occupied habitat for those

16 species also exists within the facility area,

17 correct?

18 A. Yes, there is habitat onsite for

19 the short-eared owl and northern harrier that occupy

20 that.

21 Q. Great, thank you. And so moving

22 a little bit further through that particular exhibit

23 22, on page 31, that does state and acknowledge that

24 impacts to wintering habitat for the northern harrier

25 will occur as a result of the construction and 142

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2 operation of the facility, correct?

3 A. This is Pat Green. Yes, it does

4 state that there will be impacts to occupied northern

5 harrier habitat as a result of construction of the

6 facility.

7 Q. Great. And, however, though,

8 this -- the -- the exhibit 22 concludes, however,

9 that construction operation is not likely to affect

10 the northern harrier, correct?

11 A. This is Pat Green. Yes, that is

12 correct.

13 Q. Okay. And then with regard to

14 the short-eared owl, which is on page 32 of the next

15 section, the exhibit also concludes that known winter

16 habitat for short-eared owl will be impacted by

17 facility operation and construction, correct?

18 A. This is Pat Green. Yes, that's

19 correct.

20 Q. Okay. But again, despite this,

21 exhibit 22 concludes that construction and operation

22 is not likely to adversely affect the short-eared

23 owl, correct?

24 A. This is Pat Green. Yes, that's

25 correct. 143

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2 Q. Okay. That's the questions that

3 I have with regard to exhibit 37. I do have a series

4 of questions with regard to the Preliminary Net

5 Conservation Plan, which is exhibit 41 from -- that

6 document was filed in July of 2020. I think there's

7 actually a second copy of it in the DMM. So going

8 through this document on pages five and six, so the

9 Preliminary Net Conservation Benefit Plan

10 acknowledges that the New York State Department of

11 Environmental Conservation has determined that

12 construction and operation of the facility will

13 result in the take of short-eared owl and northern

14 harrier, correct?

15 A. This is Pat Green. Yes, it --

16 the Conservation Benefit Plan explains that it will

17 result in take -- or I suppose is that New York State

18 DEC has determined it will result in take through

19 adverse modification of habitat.

20 Q. Okay. So based on this, the

21 conclusions in exhibit 22 that the construction and

22 operation of the project is not likely to adversely

23 affect the northern harrier and short-eared owl are

24 incorrect or at least irrelevant, correct?

25 A. Can you repeat the question? 144

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2 Q. So based on the fact that the DEC

3 has determined that there will be a take of occupied

4 habitat for these species, the conclusions in exhibit

5 22 that the applicant made that construction and

6 operation of the project is not likely to adversely

7 affect the short-eared owl and northern harrier are

8 incorrect, right?

9 A. I don’t think that's correct.

10 Well, the exhibit 22 states that the project is not

11 likely to adverse -- the -- adversely affect the

12 species that is regarding individuals and the species

13 overall ability to survive, and the facility is not

14 going to contribute to the contributing factors that

15 cause the species to be listed and protected as they

16 are. The habitat is not -- the habitat loss in this

17 sense in this area is -- is not the problematic

18 issues causing these species to decline. So I think

19 that the conclusions in both of these are a little

20 different, but they are usually exclusive and relate

21 -- related. But they're both correct.

22 Q. Okay. But, regardless, the

23 determination by the DEC that a take a likely to

24 occur has triggered the requirements of stipulations

25 among the parties that the applicant has to submit an 145

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2 avoidance, minimization and mitigation plan and

3 demonstrate in that conservation benefit to the

4 affected species, correct?

5 A. That's correct.

6 Q. Okay. And also, due to the DEC's

7 take determination, the applicant must also comply

8 with the requirements of the Environmental

9 Conservation Law in part 182 with regard to that

10 mitigation plan and provide a net conservation

11 benefit, correct?

12 A. I'm sorry, one more time.

13 Q. And based on the take

14 determination, the legal requirements of the

15 Environmental Conservation Law in part 182 of the

16 regulation apply here, correct?

17 A. Yes. It is our -- the

18 applicant's responsibility to ensure that a net

19 conservation benefit is achieved for the species to -

20 - in order to get part 182 permit, yes.

21 Q. Okay. And so, with regard to a

22 net conservation benefit, mitigation measures to meet

23 that standard must be expected to have a positive

24 impact on the species, correct?

25 A. They determine the net 146

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2 conservation benefit, but yeah, that's -- I think

3 we're talking the same language.

4 Q. Great. And with regard to

5 threated and endangered grassland bird species such

6 as the short-eared owl and northern harrier is it the

7 case that the preferred mitigation action for

8 providing a net conservation benefit is to conserve

9 or create and then also manage contiguous large areas

10 of quality grassland habitat, correct?

11 A. I don't know that I'm the

12 appropriate person to answer that because it -- you

13 know, it goes back to the issuing agencies what their

14 preferred mitigation is, which may change based on

15 how many plans are coming in and what kind of

16 information the agency is privy to from reviewing all

17 the related projects that may impact these species.

18 With the other -- there's not a ton of precedent in

19 New York for part 182 permits. So we have been told

20 and advised during correspondence with New York State

21 DEC that we should follow some of the examples that

22 have been submitted on other article 10 projects, and

23 that's how our project was -- our Net Conservation

24 Benefit Plan was developed.

25 Q. And -- and you were a part of 147

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2 development of the Net Conservation Benefit Plan for

3 this project?

4 A. Yes, ma'am.

5 Q. Have you prepared any other Net

6 Conservation Benefit Plans for threatened and

7 endangered grassland bird species for other large-

8 scale utility solar projects?

9 A. What would you consider large

10 scale?

11 Q. Well, under article 10.

12 A. I have not.

13 Q. Okay. So going back to the

14 Preliminary Net Conservation Benefit Plan, just a

15 couple of clarifying issues. So it acknowledges that

16 the New York State DEC considers the facility site to

17 be occupied habitat for the short-eared owl and the

18 northern harrier, correct?

19 A. Yeah. We talked about that a

20 couple questions ago. Yeah, adverse modification

21 habitat for short-eared owl and northern harrier is

22 the take.

23 Q. Okay. And, in addition to that,

24 there is also a designated winter raptor

25 concentration area, and the facility is almost 148

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2 entirely cited within that as well, correct?

3 A. Most of the facility is within

4 the limits of the National Heritage Program

5 designated winter raptor conservation area, yes.

6 Q. Okay. And with regard to some of

7 the details of the adverse modification calculation

8 and the proposal contained in the Preliminary Net

9 Conservation Benefit Plan calculates adverse

10 modification of habitat acreage based on the panel

11 layout that's in the application, the December

12 application, to be 368 acres, correct? This is on

13 page 13.

14 A. Yes.

15 Q. Okay. And there's a discussion

16 on page 13 of the Preliminary Net Conservation

17 Benefit Plan as to what constitutes suitable habitat

18 in the size of that, and it's the case that isolated

19 fragments of less than 25 acres are not generally

20 considered to be suitable habitat, correct?

21 A. Page 13, areas less than 25 acres

22 are generally not considered suitable habitat? That

23 -- that was your question?

24 Q. Correct.

25 A. Yes, that is New York States 149

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2 guidance that 25 acres or less is generally habitat

3 for these species.

4 Q. Okay. And then again, sort of

5 with regard to specifics here, so in the Preliminary

6 Net Conservation Benefit Plan the applicant is

7 proposing a conservation easement area of 215 acres,

8 correct?

9 A. Yes, according to the -- the --

10 the submitted layout from the application. However,

11 it's just a reminder that there will be changes to

12 this based on the alternative layout that was

13 submitted with the rebuttal testimony.

14 Q. Okay, great. And I will ask a

15 few questions about that in a little bit. So in

16 addition to the 215 acre contiguous conservation

17 easement area in the Preliminary Net Conservation

18 Benefit Plan, there were also several areas referred

19 to as grassland management areas. I think seven of

20 them in total, but some of those were less than 25

21 acres in size, correct?

22 A. That is correct.

23 Q. Okay. And then sort of moving

24 through some of the terms of the proposed Preliminary

25 Net Conservation Benefit Plan, the applicant has 150

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2 committed to conduct annual post-construction

3 monitoring of winter raptors, you know, for

4 determination of impacts of construction and

5 operation of the facility in the area for five years,

6 correct? This is on page 23.

7 A. Your wording is a little off. We

8 committed to five years of post-construction

9 monitoring in the mitigation area to evaluate the

10 effectiveness of our mitigation activity. That --

11 that was the main part of it.

12 Q. Okay. So is the applicant -- the

13 applicant then is not proposing to conduct any

14 additional or sort of area-wide post-construction

15 avian monitoring after the facility is completed?

16 A. Well, can you explain area wide?

17 Q. Well, if you're -- if the post-

18 construction monitoring that you're referring to in

19 the Preliminary Net Conservation Benefit Plan is

20 restricted to monitoring of the preserved grassland

21 conservation areas, does that mean that the applicant

22 is not intending to also do post-construction

23 monitoring for instance in areas where panels are

24 located or where access roads or other facility

25 components are? 151

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2 A. Generally, I would say, no, that

3 would not be what we would do because we're

4 compensating for that -- we're assuming that habitat

5 is completely lost and that's what the Net

6 Conservation Benefit Plan offsets. That's what the

7 mitigation part is. However, as a show of good

8 faith, as seen in the certificate conditions -- I

9 think it's number 102 -- Hecate is committing to two

10 post-construction survey events in the first three

11 years of operation that, you know, are sited within

12 the facility area. And the methodology for both the

13 post-construction monitoring in the mitigation area

14 and in the facility area that we've compensated for

15 would reflect the methodology that we used for

16 preconstruction surveys, which is the 2015 draft New

17 York State Wintering Raptor Guidance.

18 BY MS. FRIEDRICHSEN: (Cont.)

19 Q. Okay. But going back to the

20 proposal in the Net Conservation Benefit Plan, as

21 stated in the plan, the -- the value of such

22 monitoring would be to provide information on impacts

23 of utility scale solar development on wintering

24 rafters where there’s currently little such

25 information available, correct? 152

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2 A. Correct.

3 Q. And --

4 A. And that would be reflecting --

5 the value of that would be if you’re in the

6 mitigation area, which in this case happens to be

7 immediately adjacent to the -- the development and in

8 the same area where we have long-term survey data

9 from New York state surveys that we can evaluate the

10 presence and occupation rates o -- over the years and

11 see if -- and what the changes are in -- in those

12 areas to see if these, you know, there are ... under

13 development in the immediate reach of the

14 development.

15 Q. What do you mean by immediate

16 reach of the development? I think this goes back to

17 the discussion we’re having as to whether or not

18 monitoring will be only within conservation areas or

19 also where panels and other components will be sited.

20 A. Well, there’s -- the mitigation

21 area is immediately north in -- of the facility. So

22 we would be in the same area we already have long-

23 term data records of to establish whether they’re

24 already changes, significant changes or trends, that

25 we can notice in the five years post-construction 153

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2 versus the 10 to 12 years of pre-construction data in

3 that area. Additionally, just by virtue of sight

4 lines and locations and writing down everything we

5 identified surveys, there will undoubtedly be flyover

6 identifications over the facility area. So, you

7 know, it’s in line of sight. So if things are around

8 we -- they will be noted and -- and reported as such.

9 But again, we’re also doing two surveys and from the

10 first three years in the facility area itself. So

11 all of those areas will be surveyed.

12 Q. Okay. And those details with

13 regard to that monitoring plan, whether it’s, you

14 know, in the conservation areas or a little bit

15 broad, as you say, line of sight kind of things,

16 those you intend to memorialized in subsequent

17 versions of the Net Conservation Benefit Plan?

18 A. Well, we memorialized our

19 surveys, but our survey commitment in the mitigation

20 areas, the value with respect to them, is in the Net

21 Conservation Benefit Plan, and all iterations

22 following would -- would include our monitoring

23 requirements -- requirements required by Part 182 of

24 the regulations. But I -- I believe it’s cert

25 condition 102 already has memorialized the two survey 154

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2 events in three years that we’ll do in the facility

3 area itself that -- where we’ve considered that --

4 all that occupied habitat is completely lost, and --

5 and therefore, offset in the Net Conservation Benefit

6 Plan.

7 Q. Okay. And have all -- well, I

8 can look this up. So going back to sort of the value

9 of the monitoring, would you agree that in order to

10 maximize the value, as acknowledged in the Net

11 Conservation Benefit Plan, the -- the monitoring must

12 be of sufficient duration to make sure enough

13 information is gathered to, you know, to be able to

14 see actual impacts and not be affected by perhaps

15 fluctuations in -- in population or other trends?

16 A. If I was standing outside

17 designing a scientific experiment, just like

18 everybody else, I would say, yeah. More data is

19 better. If we had perfect data for 100 years, that

20 would be fantastic, too. But there’s a balancing act

21 between judging the effectiveness what we have and --

22 and judging the effectiveness according to the

23 practicability and responsibility of applicants of --

24 of -- of different projects in New York State

25 according to the regulations. 155

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2 Q. Okay. All right. And I think

3 that’s all I have for questions on the preliminary

4 Net Conservation Benefit Plan. This is moving on to

5 the corrected rebuttal panel testimony. Also

6 attached to that are hearing exhibits number 63,

7 which is labeled HGR1 and 71, which is labeled HGR9,

8 which are -- are two maps of the proposed alternative

9 layout that you mentioned in an alternative

10 conservation area. So on page 46 of the rebuttal

11 testimony, line 4, again, just sort of one more time

12 just for continuity’s sake. So the applicant is

13 agreeing that construction of the facility will

14 result in take of occupied wintering habitat for

15 short-eared owl in Northern Harrier, correct?

16 A. I’m trying to navigate to what

17 you -- where you are.

18 Q. Sorry. Page 46, line 4.

19 A. Page 46, line 4. I’ve got a lot

20 of documents open. Sorry about that.

21 Q. I know -- same here.

22 A. Okay. I’m there. If you could

23 repeat your question, please? Sorry.

24 Q. Sure. And this is actually a

25 question that you’ve answered in the context of the 156

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2 other documents. Just kind of one more time for

3 confirming this in terms of the chronology of the

4 case here. So as of the January corrected rebuttal

5 testimony, the applicant still agrees that

6 construction of the facility will result in the take

7 of occupied wintering habitat for short-eared owl in

8 Northern Harrier, correct?

9 A. That is correct. It’ll take a

10 habitat for those species, yep.

11 Q. Okay. And so with regard to

12 that, it says a little bit farther down in the -- in

13 the rebuttal testimony that the applicant is

14 committed to continuing to finalize a Net

15 Conservation Benefit Plan and formalize commitments

16 for mitigation, and management, and monitoring in

17 that plan, correct?

18 A. Yes, according to the certificate

19 condition 98B.

20 Q. Okay. So you had mentioned this

21 a little bit earlier, and this is starting on page

22 50, line 11. So the applicant apparently has

23 developed an alternative layout that uses different

24 panel technology, as was briefly described, and the

25 result of that is reduce the size of the project, and 157

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2 also provide a grassland conservation area of an

3 estimated 375 contiguous acres. Is this correct?

4 A. I would say the -- the second

5 part of your question was more as an indirect result

6 of the -- of the first part of your question. So the

7 rearrangement was primarily done because of the

8 issues with avoiding and minimizing impacts to state

9 freshwater wetlands, and -- and that issue, that I’m

10 sure you read about in the testimony.

11 Q. Mm-hmm.

12 A. And because we were able to

13 secure larger panels and generate more power,

14 effectively the -- it did shrink the project and

15 allow us to rearrange to avoid, and minimize, and

16 condense. And -- and that has the positive benefit

17 of increasing the ... in the Net Conservation Benefit

18 Plan.

19 Q. Okay. And moving a little bit

20 further down, on page 52, line 4, I’m just going to

21 try and clarify some numbers here with regard --

22 regard to adverse modification of habitat. So if you

23 recall, I think the calculation of adverse

24 modification of habitat in the Net Conservation -- or

25 in the preliminary Net Conservation Benefit Plan was 158

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2 368 acres.

3 A. Yep. Yes.

4 Q. Is it the case that the

5 alternative layout, it’s the same calculation of

6 adverse modification of habitat of 368 acres?

7 Basically, the question is, does the alternative

8 layout result in the same acreage of adverse

9 modification of habitat as the original layout?

10 A. There is less adverse

11 modification of habitat. I need to verify the

12 numbers.

13 Q. Okay. Yeah, I -- I --

14 A. Phil -- Phil, can you like -- so

15 Phil or Josh, do you now the acreage of the -- the

16 site layout within the fence line for the alternative

17 versus the preliminary?

18 MR. MOONEY: Yeah, this is Phil

19 Mooney, the -- yeah, yeah. We -- we -- we believe

20 it’s less impact. So it should be an improvement

21 from the original layout.

22 BY MS. FRIEDRICHSEN: (Cont.)

23 Q. Okay. Yeah, it was just, you

24 know, honestly, a little confusing in the rebuttal

25 testimony, because it seemed to say it was the same 159

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2 number of 368 acres. But if -- if the alternative

3 layout apparently shrinks the footprint, you would

4 think it would be otherwise. So, at any rate. But

5 you don’t know an exact acreage at this time of what

6 the calculated adverse modification of habitat was,

7 is that correct?

8 A. Yeah, I would not want to hazard

9 a guess without being able to verify it.

10 Q. And I really just have a -- a few

11 more questions. So I -- I -- I -- this is going back

12 to your explanation of the sort of ramifications of

13 the alternative layout and the -- the work to get

14 facility components out of wetlands. So it’s the

15 case that if the alternative layout is, you know,

16 pursued and adopted for certification, what it does

17 is it eliminates the grassland management areas that

18 were proposed in the preliminary Net Conservation

19 Benefit Plan and the contiguous conservation easement

20 area that was originally proposed is 215 acres will

21 be expanded, correct?

22 A. That is correct. There’s still

23 some detail to evaluated. That’s why it’s more of an

24 alternative layout and not formalized just by way of

25 what needs to happen as far as management and 160

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2 traversing between array -- connected array areas to

3 -- for maintenance and repair, that sort of thing.

4 There may be still a grass and management area, but

5 it will -- they will be less and less isolated. And

6 the conservation easement area would be larger and --

7 and in -- all and all, have -- have more of a -- a --

8 a greater core distance from the development we’re

9 proposing.

10 Q. Okay. So at this time, you know,

11 while we’re -- we’re all here at the evidentiary

12 hearing. We’re still operating under the original

13 proposed layout and preliminary Net Conservation

14 Benefit Plan. So the applicant has not formally

15 submitted the alternative layout for consideration by

16 the siting board, correct?

17 A. Phil?

18 MR. MOONEY: Yeah, yeah, yeah.

19 Audrey, this is Philip Mooney. We provided that

20 alternative layout, which we think is a significant

21 improvement to address all stakeholders’ interests

22 here. So I -- at this point, that’s -- that’s what

23 we want to move forward if the stakeholders and the

24 second board agrees with it. So, yeah, that’s the

25 layout that we want to do. We think it’s a 161

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2 significant improvement, and a really good thing for

3 the project.

4 MS. FRIEDRICHSEN: Okay. So then I

5 guess just for clarifying purposes, does the

6 applicant intend to formally submit, you know, on

7 the record, as opposed to in rebuttal testimony, a

8 revised application and layout?

9 MR. MOONEY: Yeah. I’d like to defer

10 to our attorney, again, the process. But one -- one

11 approach is to -- is to provide the details in the

12 compliance filing. I think that’s what we proposed.

13 But I think our attention is to move with this

14 alternative layout, which is a reduction in impacts

15 overall.

16 MS. FRIEDRICHSEN: Okay.

17 MS. BONILLA: Your Honor?

18 MR. GREEN: ... as well. So the

19 design, Phil, right, can -- can you confirm was able

20 to be improved like this just because of the -- the

21 rapidly evolving availability and quality of -- of

22 solar panels in your industry?

23 MR. MOONEY: Yeah, for -- for a few

24 different reasons.

25 MS. BONILLA: Your Honor, this is Mary 162

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2 Anne Bonilla.

3 A.L.J. MORENO: So who -- who was just

4 speaking, the gentleman who just spoke?

5 MS. BONILLA: Your Honor, this is Mary

6 Anne --

7 A.L.J. MORENO: Hold on just one

8 moment, Ms. Bonilla.

9 MS. BONILLA: This is Mary Anne

10 Bonilla with DEC.

11 A.L.J. MORENO: Hold on just one

12 moment. The gentleman who just spoke, who -- who was

13 that? Who was speaking?

14 MR. GREEN: Pat Green. I asked a Phil

15 a question.

16 A.L.J. MORENO: Okay, very good.

17 Thank you. Yes, Ms. Bonilla?

18 MS. BONILLA: Yes, Your Honors. I

19 would just like to object to this line of

20 questioning, as it’s currently being discussed in

21 settlement with all of the parties.

22 MS. FRIEDRICHSEN: Your Honor, I don’t

23 have any more questions.

24 A.L.J. MORENO: Okay, thank you.

25 A.L.J. COSTELLO: Okay. Before we 163

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2 turn to the municipalities, I just wanted to check

3 with the Department of Environmental Conservation

4 whether they have any cross-examination now that

5 Scenic Hudson has conducted their cross-examination.

6 DEC, you had indicated earlier that you may have

7 questions based on Scenic Hudson’s cross-examination.

8 MS. BONILLA: Yes, Your Honor. Thank

9 you. We have no further questions at this time.

10 Thank you.

11 A.L.J. COSTELLO: Okay, thank you.

12 All right, so I’ll turn now to the Town of Coxsackie,

13 and the Villages of Coxsackie, and Athens at this

14 time for cross-examination.

15 CROSS EXAMINATION

16 BY MS. KEMP:

17 Q. Thank you, Your Honor. This is

18 Catherine Kemp from the municipalities. I’m going to

19 begin by questioning regarding agricultural issues.

20 And for the panel, my questions primarily refer to

21 your rebuttal testimony. So I’m going to begin on

22 page 61, line 4 of your rebuttal testimony. You

23 state that of the 118 acres of prime farmland in the

24 facility area, permanent impacts to prime farmland

25 soils subseded (phonetic spelling) with the facility, 164

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2 are limited to approximately 3.09 acres from new

3 gravel roads, and approximately 0.044 acres from

4 panel posts. Is it correct that these numbers are

5 derived from only the physical disturbance of prime

6 farmland?

7 A. (Rivard) This is Linda Rivard

8 with Tetra Tech. Can you clarify as opposed to what

9 other kind of disturbance?

10 Q. Well, there’s 118 acres of farm -

11 - of prime farm land in the facility area. You’ve

12 identified 3.09 for roads and 0.044 for panel posts.

13 So what -- how do you account for those other acres

14 of prime farm land that you don’t consider a

15 conversion?

16 A. The other areas would be covered

17 by the panels. So the only impacts from the panels

18 would be from the posts, and the new gravel roads

19 that are created. The substation area is not located

20 in an area of prime farm land, so there will be no

21 impacts from that, so these categories. And I think

22 there’s also going to be permanent impacts of the

23 inverter pads, which is identified here. Those would

24 be the limits of the permanent impacts of farm land

25 soils. 165

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2 Q. So even though that 1 -- 118

3 acres of prime farm land in the facility area will

4 not be useable, the applicant only considers these

5 specific areas where, you know, physical soil

6 disruption will occur to be a permanent conversion of

7 prime farm land?

8 A. That is correct. The

9 agricultural soils beneath the panels and around the

10 other areas of project will be available for future

11 use after the life of the project and

12 decommissioning.

13 Q. And can you explain how you’ve

14 accounted for clearing and grating that may be

15 necessary for the project?

16 A. The clearing and grating would be

17 required for the gravel roads and the substation

18 areas. There is going to be some trenching required

19 for some of the underground lines. However, we are

20 going to separate top soil from that and turn it to

21 its place once the trenching is completed.

22 Q. So the applicant has not

23 considered those activities in its calculation for

24 the conversion of prime farm land?

25 A. That’s correct. 166

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2 Q. And can you explain how you have

3 accounted for compaction costs by the use of

4 construction equipment and agricultural fields in

5 your conversion calculations?

6 A. We intend to use low-impact

7 vehicles, and timing of the phasing of the

8 construction activities will occur in upland areas if

9 certain weather conditions or ground soil conditions

10 are not conducive for work in that area, until the

11 grounds are dry. We don’t anticipate any significant

12 compaction from the vehicle types that will be used.

13 Q. Please, can you explain how any

14 New -- New York state guidance, regulations, or laws

15 that would support your position, that the 118 acres

16 of prime farm land soils in the facility area, that

17 will not be available for agricultural uses, it’s not

18 a conversion of farm land?

19 MR. WALCOTT: Your Honor, this is

20 Tyler Walcott. I -- I -- I -- I object to that

21 question. That -- that sounds like a legal issue for

22 -- for briefing.

23 A.L.J. COSTELLO: I’ll -- I’ll let you

24 respond on behalf of the municipalities.

25 MS. KEMP: I -- I can move on, Your 167

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2 Honor.

3 A.L.J. COSTELLO: Okay.

4 BY MS. KEMP: (Cont.)

5 Q. Is it possible that the facility

6 area will continue to be used for utility scale

7 electric generation beyond the anticipated lifespan

8 of the project?

9 A. Are you saying, is it possible

10 for it to continue to be used as a utility-type

11 project after the life expectancy?

12 Q. That is correct.

13 A. It’s possible.

14 Q. And can you identify what the

15 anticipated lifespan of the project is?

16 A. I believe it’s 20 --

17 MR. MOONEY: Yeah, yeah, Linda, I can

18 --

19 A. -- to 35 years with --

20 MR. MOONEY: Yeah, Linda, this is

21 Philip Mooney. Yeah, I can answer that. So, yeah,

22 the -- the expected lifespan is -- I -- I -- I think

23 it’s stated -- I could check in the application. But

24 I think it’s stated to be 35 to 40 years.

25 BY MS. KEMP: (Cont.) 168

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2 Q. So even if the facility is

3 decommissioned 35 to 40 years from now, is it correct

4 that the applicant will not restore former

5 agricultural lands to their preconstruction condition

6 according to Ag & Markets’ guidelines unless the

7 landowner indicates that he or she will resume

8 agricultural uses on the land?

9 A. (Rivard) No, I don’t agree with

10 that, because our decommissioning plan outlines the

11 requirements of restoration. And the landowner

12 involvement will be related to like, are they

13 planning to continue to farm it after the life of the

14 project? Do they want roads removed -- removed --

15 that type of thing? And any restoration activities

16 would be monitored for two years post-

17 decommissioning.

18 Q. I’d like to turn your attention

19 to Exhibit 29 of your application. It’s page 6. It

20 states that, “If the facility area is intended to be

21 used for agricultural production and as required by

22 the landowner, the facility area will be restored to

23 -- substantially to preconstruction condition.” That

24 suggests that the applicant will not be restoring the

25 land for agricultural uses unless requested by the 169

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2 landowner, is that correct?

3 A. Are you on page 6 of the rebuttal

4 testimony?

5 Q. I’m on page 6 of the applicant’s

6 application Exhibit 29. I believe that’s Master

7 Exhibit 31, Article 10, Application.

8 A. Exhibit 31?

9 Q. This is Exhibit 29,

10 Decommissioning.

11 A. It is the intention of the

12 applicant to restore the site to preconstruction

13 conditions. I believe the decommissioning plan

14 states that -- that we will get landowner input as to

15 what they would like to do with the facility, but I

16 don’t believe it precludes us from restoring it.

17 Q. But is it correct that there’s no

18 commitment that agricultural lands will be restored

19 according to Ag & Markets’ guidelines unless so

20 requested by the landowner?

21 A. Phil, do you have an answer to

22 that question?

23 MR. MOONEY: I think so. I’m -- I’m

24 trying to review the statement in the Exhibit 29. I

25 -- I think the -- well, first of all, we’re talking 170

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2 about less than 3% of the 118 acres, right? So we’re

3 talking about the roads. So the -- the rest of the

4 site is going to remain -- as soon as the -- the

5 panels are pulled out -- the rest of the site is --

6 still remains to be useable for agricultural

7 purposes. The -- the -- the -- the -- the purpose of

8 -- of the -- of the roads being an option to the

9 landowner is its -- is its, in some cases, the

10 landowner may prefer to have roads to provide better

11 access to his fields during -- for -- for the

12 agricultural use. So, yes, the -- the -- the -- the

13 -- the -- the -- the commitment is to consult with

14 the landowner and -- and who will -- who will own the

15 land and after the facility is decommissioned, and --

16 and -- and be it their choice if they want those

17 roads remaining or refurbished to agricultural use.

18 That -- that -- the 3 -- the 3 -- 3 acres are less

19 than 3% of -- of the total.

20 MS. KEMP: Thank you. And -- and can

21 you identify where in the record the applicant

22 addresses how to avoid prime farmland, to the maximum

23 extent practicable?

24 MR. MOONEY: I think we’d have to --

25 I’d like to point to our rebuttal testimony, where we 171

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2 point out some of those measures, if you can give me

3 a minute.

4 BY MS. KEMP: (Cont.)

5 Q. And did -- go ahead. And -- and

6 did the applicant provide any kind of alternatives

7 analysis to demonstrate the avoided agricultural

8 resources to the maximum extent practicable?

9 A. (Rivard) The alternatives -- go

10 ahead.

11 MR. MOONEY: Good ahead. No, go

12 ahead, Linda.

13 A. This is Linda at Tetra Tech. The

14 alternative analysis was not focused on strictly

15 prime farm land soil with agricultural lands. It

16 took all of the different constraints into

17 consideration, as well as input from the town. So

18 our alternatives analysis was not strictly --

19 strictly related to one particular topic. It was

20 all-inclusive of all the different constraints that

21 we evaluated.

22 A. Thank you. I’m going to turn to

23 page 70 of your rebuttal testimony, line 20. You

24 state that, “Hecate demonstrated that a 50- megawatt

25 solar facility cannot be built in the commercial and 172

1 2-10-2021 - Hecate Energy - 17-F-0619

2 industrial districts even if the developer could

3 obtain the land that remains in the use of

4 approximately 627 acres.” Can you identify where in

5 the record Hecate demonstrated that the available

6 land in the industrial and commercial districts is

7 not viable for the project?

8 Q. In Exhibit 31, we outlined our

9 assessment of the different zoning districts in the

10 town and used arial imagery to determine if they were

11 already developed or not. And we also estimated the

12 size of available parcels. So that’s how we -- we

13 determined that. They would be segmented parcels,

14 and they’re not -- it didn’t take ... area that could

15 support the size of a 50-megawatt project.

16 Q. And did Hecate submit any kind of

17 mapping to support that?

18 A. No.

19 Q. Could you repeat?

20 A. The answer was no.

21 Q. Okay.

22 A. We did not. We did some desktop

23 analysis.

24 Q. And did Hecate provide any sort

25 of calculations for what land was available? 173

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2 A. As far as specific parcels?

3 Q. Yes.

4 A. We did not provide that

5 information in our application, no.

6 A. And -- and -- and in the

7 application, did Hecate provide a description of the

8 natural features in the commercial or industrial

9 zones that would be siting impossible?

10 A. Some of that was looked at, yes,

11 like topography, slope, that type of thing. Presence

12 of extents of areas of wetlands was also looked at.

13 Q. And -- and a description of those

14 features is -- in -- included in the application?

15 A. I don’t know how far in Exhibit

16 31 we went into detail on that. I think we just

17 summarized it. Let me take a look. Oh, no. I mean,

18 we did not identify a roughly 379-acre contiguous

19 area available within the town within the approved

20 zoning districts, which is commercial and industrial.

21 And our assessment indicates there’s only 2.8% of

22 town area available in those districts alone. So

23 when you factor in of that approximately 3% that’s

24 available of those districts in the town, and you

25 look at what’s already developed, or other wetland 174

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2 constraints, and topography, and that type of thing,

3 those district areas are a very small percentage of

4 the town area.

5 Q. But based on your testimony,

6 there is analysis that the applicant did but was not

7 included with the application to support its

8 conclusion, is that correct?

9 A. We didn’t provide a map or any

10 data tables to support that.

11 Q. And -- and did the applicant

12 every analyze the possibility ever and siting the 13 project at least in part in the -- in the commercial

14 or industrial districts?

15 MR. MOONEY: Hey, Linda, this is Phil

16 Mooney. I’d like to answer that. So --

17 MS. RIVARD: Sure.

18 MR. MOONEY: -- yeah. The project was

19 sited in the current zone a significant time before

20 the -- the recent law was created. At -- under the

21 previous law, the project could be sited where it is

22 now. I -- I -- and I don’t know the exact

23 destination. It was rural residential, I think.

24 But, you know, it was only -- it was after the

25 project was announced that the law -- that that law 175

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2 was established that we -- we feel is very

3 restrictive. And -- and we don’t own the land, and

4 we don’t own any parcels in those

5 commercial/industrial zones.

6 MS. KEMP: Thank -- thank you, Mr.

7 Mooney, but I -- I don’t believe your response is

8 responsive to my question, which was, did the

9 applicant ever analyze the possibility of siting

10 the project, at least in part, in the zoning

11 districts in which it is permitted?

12 MR. MOONEY: Yes. Part of our

13 analysis determined that -- that it’s -- it’s -- it’s

14 impractical to have segmented arrays for a 50-

15 megawatt project. So our -- our -- our project is --

16 would be located separate from those other areas, and

17 we do not own those areas. We do not own any parcels

18 over there.

19 BY MS. KEMP: (Cont.)

20 Q. So could you identify where in

21 the record Hecate’s analysis of partial siting in

22 the commercial or industrial districts is?

23 A. (Rivard) There is no

24 documentation of that application. It also took into

25 consideration that the applicant is a private 176

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2 applicant and does not have the power of eminent

3 domain -- domain. They were limited to willingly and

4 knowingly to where they could site the project.

5 Q. So if -- if your analysis did not

6 include any kind of mapping, or data, or any analysis

7 of partial siting in the commercial or industrial

8 districts, how can Hecate argue that a total waiver

9 of this restriction is the minimum necessary?

10 A. This is Linda with Tetra Tech. I

11 believe our argument is that there is not enough area

12 within the existing commercial and industrial

13 districts in the town to site a 50-megawatt project.

14 Q. Thank you. I’m going to move on

15 to page 72, line 12 of your rebuttal testimony. You

16 state that Hecate has not requested that the board

17 authorize the Town of Coxsackie building inspector to

18 certify compliance with the Uniform Fire Prevention

19 and Building Code. Can you explain why Hecate has

20 not requested that authorization?

21 A. This is Linda Rivard with Tetra

22 Tech. We are -- we have not specifically requested

23 that with the town. We are committed to complying

24 with the certificate condition number 47 to submit

25 for review the building plans to an entity approved 177

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2 by the New York State Department of State to obtain

3 compliance with the building codes and the other

4 codes that we’d be required to comply with.

5 Q. So if the town doesn’t certify

6 compliance with the uniform code, what -- what entity

7 do you propose will?

8 A. Phil, do you have an answer for

9 that?

10 MR. MOONEY: Yeah. It -- I think in

11 our condition, we -- we commit to an entity qualified

12 to make that determination. It could be -- could be

13 the engineer record. It could be an independent

14 engineer or other qualified entity.

15 MS. KEMP: And -- and wouldn’t the

16 Town of Coxsackie Buildings Department be the logical

17 entity to certify compliance with the uniform code?

18 MR. MOONEY: It could be.

19 MS. KEMP: And is there any reason in

20 particular that the applicant is hesitant to have the

21 Town of Coxsackie review compliance with the uniform

22 code?

23 MS. RIVARD: I believe the answer

24 there is that we just wanted to have the option to

25 evaluate the different entities. There’s no specific 178

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2 aversion to using the town as an approver.

3 BY MS. KEMP: (Cont.)

4 Q. So, it -- it’s your position that

5 the Town of Coxsackie would, in fact, be a logical

6 entity to review compliance. But at this point, you

7 -- you do not want to commit to having the town

8 review compliance?

9 A. (Mooney) No. But, yeah, I think

10 our position is that the -- that the town could be a

11 option, and that we’re -- we -- we -- we would -- we

12 would consider that. But we would -- the certificate

13 commission -- condition requires that we’re

14 committing to a qualified entity that can make that

15 determination.

16 Q. I’m going to move on to page 74

17 of your rebuttal testimony, line 9. You state that

18 the siting board’s review of this project does not

19 coincide with its review of the Flint Mine solar

20 project also located in the Town of Coxsackie. Can

21 you explain your basis for this conclusion?

22 A. Yeah.

23 MS. KEMP: This is Linda.

24 MR. WALCOTT: Sorry, this is Tyler

25 Walcott. I object to this question. This is a legal 179

1 2-10-2021 - Hecate Energy - 17-F-0619

2 issue that I -- I think is more to be reserved for

3 briefing. We have a difference in opinion on -- on

4 what Article 10 requires regarding cumulative

5 impacts. So I think that’s appropriate for briefing.

6 MS. KEMP: Your Honor, the -- the

7 applicant testified to, you know, information

8 regarding cumulative impacts, and I would like to

9 establish that the applicant did not, in fact, review

10 any impacts regarding community character.

11 A.L.J. COSTELLO: I think with respect

12 to, you know, what’s in the testimony and -- and

13 factual matters regarding the testimony, that’s fair

14 game. I understand they’re not going to be making

15 interpretations of the law. That’s not what’s being

16 asked of the witnesses, but just for clarifications

17 of their testimony. And with that, we’ll -- we’ll

18 let the questions go forward.

19 MS. KEMP: Thank you.

20 BY MS. KEMP: (Cont.)

21 Q. Can -- can you identify where in

22 the application the applicant reviewed the cumulative

23 impacts of the Hecate project and the Flint Mind

24 project?

25 A. (Rivard) This is Linda with Tetra 180

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2 Tech. We prepared the application in accordance with

3 the Article 10, and requirements which does not

4 require a cumulative impacts assessment in relation

5 to other solar projects in the area. However, we did

6 do a cumulative impacts assessment of the grassland

7 birds impacts. Article 10 requires that cumulative

8 impacts address air emissions. And our position is

9 that the operational project will not result in any

10 air emissions.

11 Q. Can you identify where in the

12 record the applicant reviewed cumulative impacts on

13 community character?

14 A. The community character was

15 evaluated in our view of the comprehensive plan. And

16 I would acknowledge that part of the comprehensive

17 plan is the maintain -- maintaining the rural

18 community character of -- of the village and town.

19 However, we feel the facility’s consistent with the

20 plan goals that are also stated in there regards to

21 access to electrical service, offering alternative

22 energy sources, and providing a stable tax base. So

23 in summary, our project tries to strike a balance

24 between providing renewable energy and helping the

25 state meet its energy renewable goals and compliance 181

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2 with the comprehensive plan.

3 Q. Did -- did the applicant review

4 or consider the cumulative impacts on community

5 character based on the Flint Mine project and the

6 Hecate project?

7 A. No, as it was not a requirement

8 of the application process.

9 Q. And -- and it’s your position

10 that the siting board should not consider these

11 cumulative impacts even though the two projects

12 combined compose over 9% of the land in the town?

13 A. I would understand that the

14 siting board would evaluate the project in

15 accordance with the Article 10 requirements.

16 Q. And do you have any position on

17 whether the Flint Mine project and the Hecate project

18 could have a cumulative impact on the community

19 character of the town?

20 A. No, because I have not reviewed

21 the Flint Mine project in detail, and I don’t have an

22 understanding of how their visual litigation impacts

23 have been addressed.

24 Q. Thank you. I -- I have -- I have

25 no further questions for the Hecate Panel. 182

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2 A.L.J. COSTELLO: Okay. Thank you.

3 With respect to Hecate’s counsel, do you want to take

4 a few minutes? Or -- or do you know whether you want

5 to consider to do any redirect?

6 MR. WALCOTT: No, Your Honor, we don’t

7 need a few -- we don’t need to think about it

8 anymore. We -- we have no redirect.

9 A.L.J. COSTELLO: Okay. And with

10 that, we are going to excuse the witnesses on behalf

11 of Hecate Green. And thank you for your testimony

12 today. Yeah, one second. Before we do, I just want

13 to clarify whether our hearing examiner from DC,

14 Molly McBride, has any questions with respect to

15 Hecate Green witnesses.

16 A.L.J. MCBRIDE: No, thank you.

17 A.L.J. COSTELLO: Okay, all right.

18 With that, we thank you for your testimony today, and

19 you’re excused.

20 MS. KEMP: Thank you, Your Honor.

21 MR. WALCOTT: Thank you. Everyone,

22 have a good day.

23 A.L.J. COSTELLO: Okay, before we turn

24 to the -- the next panel, the Department of Public

25 Service, we’re just going to go off the record for 183

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2 five minutes just to take a break for five minutes,

3 and we’ll be back. So I currently have --

4 THE REPORTER: Off the record.

5 A.L.J. COSTELLO: -- put that on the

6 record, specifically with respect to the exhibits

7 that were identified in the rebuttal testimony, and

8 then we’ll go onto DPS staff.

9 (Off the record 11:54 a.m.)

10 (On the record 12:03 p.m.)

11 THE REPORTER: Okay. Well, we are back

12 on the record.

13 A.L.J. COSTELLO: Okay. And when we

14 took a break, it was brought to my attention that we

15 did not indicate the exhibits that were attendant to

16 the testimony that was admitted into the record as if

17 given orally here today. And I just want to note for

18 the record that for the corrected rebuttal testimony

19 of the applicant panel, there were exhibits HGR1

20 through HGR12. And those are listed as exhibit

21 numbers 63 through exhibit 74 in the -- our exhibit

22 list. Okay, and with that, I’m going to turn it over

23 to counsel for the Department of Public Service for

24 their witnesses.

25 MS. PARTYKA: Yes, good afternoon. 184

1 2-10-2021 - Hecate Energy - 17-F-0619

2 Thank you, Your Honors. This is Cassandra Partyka,

3 assistant counsel for the Department of Public

4 Service. Before we start, I would just like to

5 reserve the right to admit the applicant’s response

6 to DPS IR number 6 into the record once they submit

7 that. They have not completed their answer to that

8 yet. So once they complete that, we would like that

9 to be included in the record.

10 A.L.J. COSTELLO: Okay. Yeah, you --

11 you could have -- submit that to us. And at the

12 time, we will probably do, you know, short a ruling

13 admitting that into the record.

14 MS. PARTYKA: Thank you, Your Honor.

15 A.L.J. COSTELLO: Okay.

16 MS. PARTYKA: Okay. So I’m going to

17 begin. Again, this is Cassandra Partyka, assistant

18 counsel for Department of Public Service. And I have

19 on the line with me representing Department of Public

20 Service staff, Mr. Andrew Davis and Mr. Jeremy Flaum.

21 Are you both on?

22 MR. FLAUM: Jeremy Flaum. I am on.

23 MR. DAVIS: Andrew Davis here.

24 MS. PARTYKA: Excellent. Good

25 afternoon. Mr. Davis and Mr. Flaum, before you is a 185

1 2-10-2021 - Hecate Energy - 17-F-0619

2 document entitled, “The Prepared Testimony” --

3 A.L.J. COSTELLO: Just can I bother

4 one sec?

5 MS. PARTYKA: Yes.

6 A.L.J. COSTELLO: Let me -- let me

7 swear them in.

8 MS. PARTYKA: Okay, okay.

9 A.L.J. COSTELLO: And I believe both

10 of your business addresses are the same. But just

11 state your name, and your business address, and

12 indicate that you swear to tell the truth or affirm

13 to tell the truth in your testimony. So what I’m

14 going to do is just read to you the -- the oath. And

15 then you’ll give your name, and business address, and

16 your indication of -- that you swear or affirm to

17 tell the truth. So Mr. Flaum and Mr. Davis, do you

18 swear or affirm that the testimony you will provide

19 is the truth?

20 MR. DAVIS: So affirm, Andrew Davis.

21 THE REPORTER: I’m sorry, I didn’t get

22 that.

23 MR. DAVIS: Andrew Davis here. I so

24 affirm.

25 A.L.J. COSTELLO: Okay, and your 186

1 2-10-2021 - Hecate Energy - 17-F-0619

2 business address? Mr. Davis, I’m sorry. I just ask

3 -- just state your business address as well.

4 MR. DAVIS: Oh, Andrew Davis, number 3

5 Empire State Plaza, Albany, New York.

6 A.L.J. COSTELLO: Okay, thank you.

7 MR. DAVIS: Department of Public

8 Service.

9 MR. FLAUM: Jeremy Flaum, Department

10 of Public Service. 3 Empire State Plaza. I do so

11 affirm.

12 ANDREW DAVIS; SWORN

13 JEREMY FLAUM; SWORN

14 A.L.J. COSTELLO: Okay, thank you.

15 Okay, Ms. Partyka?

16 MS. PARTYKA: Thank you, Your Honor.

17 Mr. Davis and Mr. Flaum, before you is a document

18 entitled, “Prepared Testimony of Staff Panel in

19 Support of Settlement,” which consists of 2 cover

20 pages and 82 pages of questions and answers, and it

21 is dated December 18th, 2020. Was this document

22 prepared by you or under your direct supervision?

23 MR. DAVIS: Yes, it was.

24 MS. PARTYKA: That was Andy Davis.

25 Jeremy Flaum? 187

1 2-10-2021 - Hecate Energy - 17-F-0619

2 MR. FLAUM: Jeremy Flaum. Yes, it

3 was.

4 MS. PARTYKA: Thank you. And do you

5 have any changes or corrections to make to that

6 testimony?

7 MR. DAVIS: Andrew Davis. I have no

8 changes or corrections.

9 MR. FLAUM: Jeremy Flaum. I have no

10 changes or corrections.

11 MS. PARTYKA: And if you were asked

12 the same questions today under oath, would you answer

13 them the same way?

14 MR. DAVIS: Andrew Davis. Yes, I

15 would.

16 MR. FLAUM: Jeremy Flaum. Yes, I

17 would.

18 MS. PARTYKA: And do you affirm that

19 your testimony is true to the best of your

20 information and belief?

21 MR. DAVIS: Andy Davis. Yes, I so

22 affirm.

23 MR. FLAUM: Jeremy Flaum. I so

24 affirm.

25 MS. PARTYKA: And, Your Honor, this is 188

1 2-10-2021 - Hecate Energy - 17-F-0619

2 just to clarify that the entire panel testimony

3 consists of testimony from seven DPS staff -- Andrew

4 Davis, Jeremy Flaum, Miguel Moreno-Caballero, John

5 Quackenbush, Caitlyn Edmundson, Lorna Gillings, and

6 Richard Quimby. However, we have filed affidavits

7 for Richard Quimby, Miguel Moreno-Caballero, John

8 Quackenbush, Caitlyn Edmundson, and Lorna Gillings,

9 and Jeremy Flaum, and Andy Davis are going to

10 represent the panel here today. However, at Your

11 Honor’s request, if there’s a question that only one

12 of the other panel members can answer, we can make

13 them available. And so, I would like to move the

14 prefiled initial testimony of Staff Panel in support

15 of settlement be entered into the record as if it

16 were given orally during the hearing today.

17 A.L.J. COSTELLO: Okay, and that

18 motion is granted. And we’ll, as I said earlier on

19 today, deal with the affidavits later on after we’ve

20 gone through the cross-examination of all the

21 witnesses. And so what the Court Reporter will do is

22 at this point in the record, the testimony should be

23 provided as if given here orally today by the Staff

24 Panel in support of settlement.

25 189

BEFORE THE STATE OF NEW YORK BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

In the Matter of

Hecate Energy Greene 1 LLC Hecate Energy Greene 2 LLC Hecate Energy Greene County 3 LLC

Case 17-F-0619

December 18, 2020

Prepared Testimony of Staff Panel in Support of Settlement:

Andrew Davis Chief – Certification & Compliance Office of Electric, Gas, and Water

Jeremy Flaum Utility Supervisor Office of Electric, Gas, and Water

Miguel Moreno-Caballero Utility Engineering Specialist 3 (Acoustics) Office of Electric, Gas, and Water

John Quackenbush Engineering Specialist 2 Office of Electric, Gas, and Water

190

Richard Quimby Power Systems Operations Specialist 4 Office of Electric, Gas, and Water

Lorna Gillings Utility Consumer Program Specialist 4 Outreach and Education Office of Consumer Services

Caitlyn Edmundson Associate Economist Office of Regulatory Economics

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

191

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Q. Please state the names, employer, and business

2 address of the Staff Panel in Support of

3 Settlement (the SPSS or Panel).

4 A. Our names are Andrew Davis, Jeremy Flaum, Miguel

5 Moreno-Caballero, John Quackenbush, Richard

6 Quimby, Lorna Gillings, and Caitlyn Edmundson.

7 We are employed by the New York State Department

8 of Public Service (DPS or Department). Our

9 business address is Three Empire State Plaza,

10 Albany, New York 12223.

11 Q. Mr. Davis, what is your position with the

12 Department?

13 A. I am the Chief of Environmental Certification

14 and Compliance, in the Office of Electric, Gas

15 and Water (EC&C, OEGW).

16 Q. Please briefly describe your educational

17 background and professional experience.

18 A. I graduated from the State University of New

19 York, College of Environmental Science and

20 Forestry with a Bachelor of Science Degree in

21 Natural Resources Management (Forestry) in 1981.

1 192

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 My professional training while working at NYS

2 DPS includes cultural resources management,

3 visual impact assessments, remote sensing, ARC-

4 MAP geographic information systems, habitat

5 evaluation, and wetlands delineation, among

6 other specialties.

7 Q. Mr. Davis, what are your qualifications and

8 experiences in reviewing major electric

9 generating and related facilities?

10 A. Since starting as an environmental analyst for

11 the Department in 1986, I have provided

12 professional testimony regarding environmental

13 and land use effects (including natural and

14 cultural resources, visual impacts, land use,

15 and local plans and land use and development

16 laws consistency) before the Board on Electric

17 Generation Siting and the Environment (Siting

18 Board) in at least 17 projects pursuant to

19 Public Service Law (PSL) Articles X and 10, and

20 testimony on similar matters in at least 17

21 projects before the Public Service Commission

2 193

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 (Commission) pursuant to PSL Article VII. In

2 addition, I have provided advisory review and

3 assessment in approximately 60 DPS Staff team

4 reviews in various proceedings pursuant to PSL

5 Articles X, 10, VII, and Section 68, as well as

6 other proceedings pursuant to the State

7 Environmental Quality Review Act or the National

8 Environmental Policy Act environmental analysis.

9 Analyses include reviews of large-scale

10 facilities for electric generating, electric and

11 gas transmission, and energy storage. This is

12 the fifth major solar electric generating

13 facility that has come before the Siting Board

14 or the DPS for licensing subject to agency

15 jurisdiction under PSL Article 10.

16 Q. Mr. Flaum, what is your position with the

17 Department?

18 A. I am employed as a Utility Supervisor in the

19 Environmental Certification and Compliance

20 Section of the Office of Electric, Gas and

21 Water.

3 194

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Q. Please briefly describe your educational

2 background and professional experience.

3 A. I graduated from the State University of New

4 York College at Cortland in 2003 with a Bachelor

5 of Science Degree in Geology. I received a

6 Master of Science Degree in Environmental

7 Management from the University of Maryland,

8 University College, in 2008. I joined the

9 Department in 2009. Prior to joining the

10 Department, I held Geologist positions at two

11 environmental consulting firms where I performed

12 field investigations, oversight, and data

13 analysis for multiple environmental remediation

14 sites.

15 Q. Please describe your responsibilities with the

16 Department.

17 A. My primary responsibilities include evaluating

18 environmental impacts and construction

19 feasibility issues for electric generating

20 facilities under Article 10 of the PSL and

21 electric and gas transmission facilities under

4 195

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Article VII of the PSL. Additionally, I have

2 reviewed utility property site contamination

3 investigation and remediation (SIR) matters and

4 provided recommendations for SIR cost recovery

5 in utility rate cases before the Commission.

6 Q. Have you provided testimony in previous

7 proceedings before the Siting Board?

8 A. Yes. I provided testimony regarding geologic

9 and water resource impacts of proposed major

10 electric generation wind energy facilities in

11 Cases 14-F-0490, 15-F-0122, 16-F-0062, 16-F-

12 0328, 16-F-0559, 16-F-0205, 17-F-0282, and 16-F-

13 0267. I also testified as part of the Staff

14 Policy Panels for all of those cases, except 16-

15 F-0267, and as part of the Staff Panel in

16 Support of Settlement in Case 18-F-0262. I

17 recently submitted testimony as part of the

18 Staff Panel in Support of Settlement for major

19 solar electric generating facilities proposed

20 pursuant to PSL Article 10 in Cases 17-F-0182,

21 17-F-0617, 17-F-0599, and 17-F-0597.

5 196

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Q. Have you provided testimony in any other

2 proceedings as a member of Department Staff?

3 A. Yes. I have testified before the Commission as

4 part of Department Staff’s SIR Panels for

5 numerous rate cases, including, most recently:

6 Cases 20-E-0380 & 20-G-0381, Niagara Mohawk

7 Power Corporation d/b/a National Grid; Cases 19-

8 G-0309 and 19-G-0310, KeySpan Gas East

9 Corporation and Brooklyn Union Gas Company; and

10 Cases 18-E-0067 and 18-G-0068, Orange and

11 Rockland Utilities, Inc. I have testified

12 before the Commission regarding the water

13 quality issues and environmental impacts of

14 proposed major electric transmission projects in

15 Cases 08-T-0034 and 10-T-0139, and as part of

16 the Department Staff Panel in Case 18-T-0604.

17 Q. Mr. Moreno what is your position at the

18 Department?

19 A. I am a Utility Engineering Specialist 3

20 (Acoustics) in the Environmental Certification

21 and Compliance section of the Office of

6 197

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Electric, Gas and Water.

2 Q. Please summarize your educational background and

3 professional experience.

4 A. I attended the Pontifical Xaverian University in

5 Bogota, Colombia and received a Bachelor of

6 Science in Civil Engineering in 1986.

7 Thereafter, I continued my education at

8 Universidad del Norte in Barranquilla, Colombia

9 and graduated with a Master of Business

10 Administration Degree in 1992. I have

11 accumulated more than 20 years of experience in

12 the field of acoustics and noise control. I

13 owned and operated my own business in Colombia

14 for about 13 years, where I worked as an

15 acoustical consultant and acoustical contractor.

16 I designed and built noise abatement solutions

17 for emergency generators, industrial machinery,

18 HVAC equipment, and interior acoustical designs

19 for indoor spaces. I obtained extensive

20 experience in noise control including noise

21 surveys and computer simulations of aircraft

7 198

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 noise for two international airports.

2 After my arrival to the United States, I was

3 employed as a Senior Acoustical Consultant by an

4 acoustical consulting firm in Washington D.C.,

5 from October 2005 until May 2008. There, I

6 analyzed sound surveys and performed computer

7 noise modeling for roadways and highways and

8 designed mitigation measures such as barriers

9 and selected building envelope specifications

10 for environmental noise control. I designed

11 noise control solutions for mechanical equipment

12 and interior acoustics for indoor spaces for a

13 variety of projects. From May 2008 to June

14 2009, I was employed by an acoustical consulting

15 company in Manhattan and worked on several

16 acoustical and noise control projects, including

17 data centers and corporate projects.

18 I joined the Department in November 2013. My

19 duties include reviewing PSL Article VII and

20 Article 10 pre-applications, applications,

21 environmental noise assessments, noise surveys,

8 199

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 and mitigation measures. I review sound

2 collection protocols and witness sound

3 measurements to ensure compliance with

4 Certificate Conditions. I am a full-member of

5 the Institute of Noise Control Engineering and

6 an associate member of the Acoustical Society of

7 America.

8 Q. Mr. Moreno, which projects have you reviewed

9 under PSL Article 10 and Article VII

10 regulations?

11 A. Under Article VII regulations, I have reviewed

12 the applications for the following certified

13 cases: New York Power Authority, Case 13-T-0515;

14 DMP New York, Inc. and Williams Field Services

15 Company LLC, Cases 13-T-0538 and 13-T-0350; PSEG

16 Power New York, Inc., Case 15-F-0040; and

17 Consolidated Edison (Con Edison) Company of New

18 York, Inc., Case 13-T-0586. I am currently

19 assigned to numerous PSL Article 10 proceedings

20 (and some potentially affiliated Article VII

21 filings) regarding wind generating facilities at

9 200

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 various stages including the following projects:

2 Cassadaga Wind, LLC, Case 14-F-0490; Lighthouse

3 Wind, LLC, Case 14-F-0485; Baron Winds, LLC,

4 Case 15-F-0122; Bull Run Energy, LLC, Case 15-F-

5 0377; Eight Point Wind, LLC, Case 16-F-0062;

6 Atlantic Wind, LLC, Case 16-F-0267; Canisteo

7 Wind Energy, LLC, Case 16-F-0205; Number Three

8 Wind, LLC, Case 16-F-0328; Heritage Wind, LLC,

9 Case 16-F-0546; Bluestone Wind, LLC, Case 16-F-

10 0559; Alle-Catt Wind Energy, LLC, Case 17-F-

11 0282; Atlantic Wind, LLC, Case 16-F-0713; and

12 High Bridge Wind, LLC, Case 18-F-0262. I am

13 assigned to multiple PSL Article 10 proceedings

14 (and some potentially affiliated Article VII

15 filings) regarding solar generating facilities

16 at various stages including the following

17 projects: Hecate Energy Albany 1, LLC and Hecate

18 Energy Albany 2, LLC, Case 17-F-0617; and Hecate

19 Energy Greene 1 LLC, Hecate Energy Greene 2 LLC,

20 and Hecate Energy Greene County 3 LLC, Case 17-

21 F-0619.

10 201

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Q. Mr. Moreno, what is your role in reviewing

2 projects filed under Article 10 of the PSL?

3 A. My duties include reviewing Preliminary Scoping

4 Statements (PSS), stipulations and applications

5 as they relate to the noise assessments and

6 avoidance or minimization of environmental noise

7 impacts from major electric generation

8 facilities. My role regarding wind and solar

9 generating projects consists of reviewing

10 application sections related to noise impact

11 assessments from construction and operation of

12 the facilities, which includes: pre-construction

13 ambient noise surveys; analysis of existing or

14 potential future prominent tones; noise modeling

15 parameters; assumptions and results; amplitude

16 modulation; low-frequency noise; infrasound;

17 potential for hearing damage; indoor and outdoor

18 speech interference; interference with the use

19 of outdoor public facilities and public areas;

20 community complaint potential or annoyance; and

21 the potential for interference with

11 202

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 technological, industrial, or medical activities

2 that are sensitive to vibration or infrasound.

3 I review applicable noise standards and

4 guidelines, local regulations on noise, design

5 goals for the facilities, noise abatement

6 measures, complaint and resolution plans for

7 noise from construction and operation of

8 proposed facilities and proposed post-

9 construction noise evaluations and compliance

10 for conformance with certificate conditions.

11 Q. Mr. Quackenbush, what is your position with the

12 Department?

13 A. I am an Engineering Specialist 2 in the

14 Environmental Certification and Compliance

15 section of the Office of Electric, Gas and

16 Water.

17 Q. Please summarize your educational background and

18 professional experience.

19 A. I attended Hudson Valley Community College in

20 Troy, New York and received an individual study

21 Associate Degree, as well as an Associate Degree

12 203

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 in Applied Science in Civil Engineering

2 Technology. Thereafter, I continued my education

3 at the State University of New York Polytechnic

4 Institute, formerly known as the State

5 University of New York Institute of Technology

6 in Utica, New York and graduated with a Bachelor

7 of Science in Civil Engineering Technology. I

8 was employed at CHA Consulting, Inc. (formerly

9 Clough, Harbour, & Associates LLP) as a Design

10 and Drafting Technician from 2000 until November

11 2006. In February 2007, I joined the Department

12 Staff of Electric Distribution Section in the

13 Office of Electric, Gas and Water as a Utility

14 Engineer, where I performed utility inspections

15 to assess electric distribution infrastructure

16 conditions, investigated various electric

17 utility customer reliability complaints, and

18 reviewed utility reliability reports. Since

19 October 2009, I have worked as an Engineering

20 Specialist 2 in the Environmental Certification

21 and Compliance section of the Office of

13 204

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Electric, Gas and Water. My duties include

2 reviewing site plans, proposed major electric

3 generating, transmission, and distribution

4 facilities locations and utility routes,

5 construction practices, and environmental

6 control plans for various projects, including

7 reviewing PSL Article VII and Article 10

8 applications.

9 Q. Mr. Quackenbush, have you previously testified

10 before the Commission or the Siting Board?

11 A. Yes. I have testified before the Commission and

12 the Siting Board in several cases regarding

13 proposed electric infrastructure upgrades,

14 electric power transmission routes, the siting

15 of electric generation plants, electric rates,

16 and research and development programs. One

17 representative case includes Hudson Transmission

18 Partners, LLC, Case 08-T-0034, in which I

19 analyzed its proposed electric upland route in

20 Manhattan, the constructability of the route,

21 proposed alternative routes, and construction

14 205

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 practices. Additionally, I reviewed routing and

2 constructability issues pertaining to the

3 granting of a Certificate through a Joint

4 Proposal for the Champlain Hudson Power Express,

5 Inc., Case 10-T-0139. I have testified before

6 the Siting Board regarding the decommissioning

7 plan of Cassadaga Wind, LLC, an Article 10

8 project certified in Case 14-F-0490. I am

9 involved in reviewing and analyzing routing and

10 construction methods for ongoing PSL Article VII

11 and Article 10 projects pending before the

12 Commission or Siting Board, respectively,

13 regarding major electric, wind, and solar

14 generation projects at various pre-application

15 and application stages. My primary role

16 regarding major wind and solar electric

17 generation projects involves reviewing

18 facilities’ proposed setback distances,

19 preliminary design drawings, and proposed

20 general construction practices (including

21 assembly and foundation work), electric

15 206

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 collection lines and related transmission lead

2 installations, access ways, and any associated

3 building facilities. I review potential impacts

4 related to transportation due to general

5 construction and delivery activities during wind

6 turbine and solar installations. I have provided

7 testimony regarding decommissioning plans and

8 provisions of proposed major electric generation

9 facilities in cases 14-F-0490; 14-F-0122; 16-F-

10 0062; 16-F-0205; 16-F-0267; 16-F-0238; 16-F-0559

11 and 17-F-0182.

12 Q. Mr. Quimby, what is your position at the

13 Department?

14 A. I am a Power Systems Operations Specialist 4 in

15 the Electric Safety and Reliability Section, in

16 the Office of Electric, Gas, and Water.

17 Q. Please summarize your educational background and

18 professional experience.

19 A. I graduated from Clarkson University with a

20 Bachelor of Science Degree in Electrical

21 Engineering in 2005. In 2006, I began working

16 207

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 at Lightning Technologies, Inc., where I

2 performed high voltage testing and prepared

3 testing protocols and final reports that

4 documented testing and results. I began working

5 for the Department in 2008 in the Bulk Electric

6 Systems Section. I have participated in New

7 York Independent System Operator Inc. (NYISO)

8 committee meetings and I have been involved in

9 more than five Article VII siting cases. I have

10 also reviewed and analyzed petitions filed

11 pursuant to Part 102 of the Commission’s rules

12 in order to advise the Commission on whether

13 proposed facilities may be constructed overhead

14 or underground.

15 Q. Have you previously testified before the

16 Commission or the Siting Board?

17 A. Yes. I have previously testified in Article VII

18 proceedings, including Case 06-T-0650 (New York

19 Regional Interconnect), Case 10-T-0080 (National

20 Grid), and Case 11-T-0534 (RG&E) on matters

21 relating to routing and construction.

17 208

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Q. Are you training to become a licensed

2 professional engineer?

3 A. Yes. I passed the fundamentals section of the

4 New York State Professional Engineering Exam and

5 I am working towards obtaining my professional

6 engineering license.

7 Q. Ms. Gillings what is your position with the

8 Department?

9 A. My current position is in the Office of Consumer

10 Services as a Utility Consumer Program

11 Specialist 4. My key responsibility in the

12 Outreach and Education Unit is to promote

13 consumer education regarding electric, natural

14 gas, telecommunication and water utility

15 services and ensure opportunities for public

16 participation in Commission and Siting Board

17 proceedings.

18 Q. Have you ever provided testimony before the

19 Commission or the Siting Board?

20 A. Yes. I provided testimony as part of the

21 Consumer Services Panel for Cases: 14-F-0490,

18 209

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Cassadaga Wind; 15-F-0122, Baron Winds; 16-F-

2 0328, Number Three Wind; 16-F-0062, Eight Point

3 Wind; 16-F-0559, Bluestone Wind; 16-F-0205,

4 Canisteo Wind; 17-F-0282, Alle-Catt Wind; 16-F-

5 0267 Atlantic Wind, DPS Staff Policy Panel and

6 Office of Consumer Services direct testimony;

7 and DPS Staff Policy Panel in Support of

8 Settlement on Cases: 17-F-0182, Mohawk Solar;

9 17-F-0617, Coeymans Solar Farm; 17-F-0599, East

10 Point Energy Center; 18-F-0262, High Bridge

11 Wind; and 17-F-0597, High River Energy Project.

12 Q. Ms. Edmundson, what is your position with

13 the Department?

14 A. I am employed as an Associate Economist in the

15 Office of Regulatory Economics.

16 Q. Please briefly discuss your related educational

17 background and professional experience.

18 A. I received a Bachelor of Science Degree in

19 Economics and a Bachelor of Arts Degree in

20 Mathematical Sciences from Binghamton University

21 in 2010. I received a Master of Science in

19 210

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Agricultural, Environmental, and Regional

2 Economics from the Pennsylvania State University

3 in 2012. I have been employed with the

4 Department since 2012.

5 Q. Have you previously testified before the

6 Commission or the Siting Board?

7 A. Yes. I testified before the Commission on

8 management compensation and benefit issues in

9 Cases 13-E-0030, 13-G-0031, 13-S-0032, 16-E-

10 0060, and 16-G-0061, regarding Consolidated

11 Edison Company of New York, Inc. (Con Edison);

12 Cases 15-E-0283, 15-G-0284, 15-E-0285, and 15-G-

13 0286 regarding New York State Electric & Gas

14 Corporation (NYSEG) and Rochester Gas and

15 Electric Corporation (RGE); and Case 15-G-0382,

16 St. Lawrence Gas Company, Inc. I testified as

17 part of the Staff Sales Forecasting Panel in

18 Case 16-E-0060, regarding Con Edison and Case

19 17-E-0238, regarding Niagara Mohawk Power

20 Corporation d/b/a National Grid (National Grid).

21 I testified as part of the Staff Earnings

20 211

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Adjustment Mechanisms Panel in Cases 17-E-0238

2 and 20-E-0380 regarding National Grid; Case 17-

3 E-0459 regarding Central Hudson Gas & Electric

4 Corporation; Case 18-E-0067 regarding Orange and

5 Rockland Utilities, Inc; Case 19-E-0065

6 regarding Con Edison; and Cases 19-E-0378 and

7 19-E-0380 regarding NYSEG and RGE. I have

8 testified as part of the Staff Advanced Metering

9 Infrastructure Panel in Cases 19-E-0378 and 19-

10 E-0380 regarding NYSEG and RGE; and Cases 20-E-

11 0380 and 20-G-0381 regarding National Grid.

12 Additionally, I have testified before the Siting

13 Board on jobs impact issues in Cases: 14-F-0490,

14 Cassadaga Wind; 15-F-0122, Baron Winds; 16-F-

15 0205, Canisteo Wind; 17-F-0617, Coeymans Solar

16 Farm; and 17-F-0597, High River Energy Center.

17 Q. Is the Panel sponsoring any exhibits to

18 accompany or support its testimony?

19 A. No.

20 Q. Will the Panel refer to, or has it otherwise

21 relied upon, any responses to interrogatory

21 212

CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 requests (IRs) in this proceeding?

2 A. Yes, we refer to the Applicant’s response to IRs

3 DPS-3 and Municipalities-3.

4 Q. Please summarize the scope of the Panel’s

5 testimony.

6 A. The Panel is presenting DPS Staff’s overall

7 recommendations on whether the Siting Board can

8 make the required findings pursuant to Article

9 10 of the PSL under Section 168 necessary to

10 grant a Certificate of Environmental

11 Compatibility and Public Need (Certificate) to

12 construct and operate the Facility. The Panel

13 is also providing DPS Staff’s recommendations on

14 the Stipulated Certificate Conditions and

15 Stipulated Site Engineering and Environmental

16 Plan (SEEP) Guide proposed by the Applicant and

17 several parties in this proceeding that should

18 be considered and adopted by the Siting Board if

19 a Certificate is issued.

20 Q. What findings does PSL Section 168 require prior

21 to the Siting Board granting a Certificate?

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1 A. The Siting Board shall not grant a Certificate,

2 either as proposed or modified, without making

3 explicit findings on the nature of the probable

4 environmental impacts of the construction and

5 operation of a major electric generation

6 facility, including the cumulative environmental

7 impacts of the facility and the related

8 interconnection facilities, impacts to ecology,

9 air, ground and surface water, wildlife, and

10 habitat; impacts to public health and safety;

11 impacts to cultural, historic, and recreational

12 resources, including aesthetics and scenic

13 values; and impacts to transportation,

14 communication, utilities and other

15 infrastructure (the probable environmental

16 impacts). Moreover, the Siting Board may not

17 grant a Certificate for the construction and

18 operation of a major electric generating

19 facility, either as proposed or modified, unless

20 the Siting Board determines that the facility is

21 a beneficial addition or substitution for

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1 electric generation capacity of the State; the

2 construction and operation of the facility will

3 serve the public interest; and the adverse

4 environmental effects of the construction and

5 operation of the facility will be minimized or

6 avoided to the maximum extent practicable. If

7 the Siting Board finds that the facility results

8 in or contributes to a significant and adverse

9 disproportionate environmental impact in the

10 community in which the facility would be

11 located, it must also find that the Applicant

12 has avoided, offset or minimized the impacts

13 caused by the facility upon the local community

14 for the duration that the Certificate is issued

15 to the maximum extent practicable using

16 verifiable measures. The Siting Board must find

17 that the facility is designed to operate in

18 compliance with applicable state and local laws

19 and regulations, all of which shall be binding

20 on the Applicant, except that the Siting Board

21 may elect not to apply, in whole or in part, any

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1 local ordinance, law, resolution or other action

2 or any regulation issued thereunder, or any

3 local standard or requirement which would be

4 otherwise applicable, if it finds that, as

5 applied to the proposed facility, such is

6 unreasonably burdensome in view of the existing

7 technology or the needs of or costs to

8 ratepayers, whether located inside or outside of

9 such municipality. Finally, in making its

10 determinations, the Siting Board shall consider

11 the state of available technology; the nature

12 and economics of reasonable alternatives; the

13 environmental impacts found; the impact of

14 construction and operation of related

15 interconnection facilities; the consistency of

16 the construction and operation of the facility

17 with the energy policies and long-range

18 objectives contained in the most recent state

19 energy plan; the impact on community character;

20 whether the facility would affect communities

21 that are disproportionately impacted by

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1 cumulative levels of pollutants; and such

2 additional social, economic, visual or other

3 aesthetic, environmental and other

4 considerations deemed pertinent.

5 Q. Please describe DPS Staff’s review of the

6 Application and subsequent filings in this case.

7 A. In order to develop our positions, DPS Staff

8 reviewed the Application; supplements to the

9 Application; discovery responses; and the

10 proposed settlement documents stipulated to by

11 DPS Staff and filed by the Applicant on December

12 16, 2020, including proposed Certificate

13 Conditions and Guidance for the Development of

14 Site Engineering and Environmental Plans for the

15 Greene County Solar Facility (SEEP Guide). The

16 documents stipulated to by DPS Staff constitute

17 the Settlement Package in this case.

18 Q. How were the proposed Certificate Conditions

19 developed?

20 A. Following the Chair’s determination that the

21 Application, as supplemented, was compliant, the

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1 Applicant issued a Notice of Settlement in this

2 case in an effort to address proposed

3 Certificate Conditions. Through a series of

4 meetings and other communications, the proposed

5 Certificate Conditions were developed and

6 eventually stipulated to by the Settlement

7 Parties in this case, including DPS Staff.

8 Thereafter, the Applicant filed the proposed

9 Certificate Conditions on December 16, 2020.

10 DPS Staff supports the proposed Certificate

11 Conditions as filed and updated, and without

12 exception. Thus, DPS Staff recommends that the

13 Siting Board could make findings in all areas

14 without further recommendation or modification

15 to the proposed Certificate Conditions.

16 Q. Please describe the proposed SEEP Guide

17 document.

18 A. The proposed SEEP Guide is a set of guidelines

19 for final engineering, construction, and

20 environmental plans and details that should be

21 required as a compliance filing for Siting Board

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1 review and approval prior to the construction

2 and operation of the Facility. The purpose of

3 the SEEP Guide is to establish a single filing,

4 or series of filings if Project construction

5 will be performed in phases, that would satisfy

6 the requirements of numerous individual

7 compliance filings needed for construction, and

8 to create a single package of plans and details

9 for contractors and regulatory agencies. The

10 component parts may be submitted sequentially

11 based on construction phasing (see 16 NYCRR

12 §1000.2(i)) or other rational basis subject to

13 demonstration.

14 Q. Please describe the parties to this proceeding.

15 A. In addition to DPS Staff and the Applicant, the

16 following parties participated in settlement

17 discussions: the Department of Environmental

18 Conservation (NYSDEC); the Department of

19 Agriculture and Markets (NYSAGM); the Department

20 of Health (NYSDOH); the Town of Coxsackie,

21 Village of Coxsackie, and Village of Athens

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1 (collectively the “Municipalities”); Sleepy

2 Hollow Lake Association of Property Owners

3 (SHLAPO); Saving Greene; Greene Land Trust;

4 Scenic Hudson; and Margaret Jones.

5 Q. Please describe the settlement discussions.

6 A. The settlement discussions included attending

7 settlement conferences and reviewing the

8 proposed Certificate Conditions and SEEP Guide

9 previously described. Several parties agreed to

10 sign-on to the settlement and that agreement

11 will be memorialized in the Settlement Package.

12 Those signatory parties may disagree with some

13 conditions included in the proposed Certificate

14 Conditions or portions of the proposed SEEP

15 Guide. Where a party disagrees with a discrete

16 portion of the Settlement Package, that party

17 will note its exception(s) when signing off on

18 the Settlement Package.

19 Q. Is DPS Staff taking exception to any portions of

20 the Settlement Package?

21 A. No. DPS Staff has no exceptions.

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1 Q. Please explain why the Panel recommends that the

2 Siting Board adopt the proposed Certificate

3 Conditions and proposed SEEP Guide.

4 A. The proposed Certificate Conditions and proposed

5 SEEP Guide reflect extensive consultation among

6 the Parties to identify conditions and guidance

7 that would avoid, minimize, or mitigate

8 environmental and other adverse impacts of the

9 Project. These consultations resulted in

10 agreements on conditions with respect to several

11 issues, including: grassland bird impacts; noise

12 impacts; decommissioning requirements; siting

13 and construction protocols to minimize impacts

14 to agricultural land uses; conditions for

15 facility vegetation management; measures to

16 avoid and protect known archeological resources,

17 and responsive measures in the event of an

18 unanticipated discovery of additional

19 archeological sites; details of protective

20 measures for construction impacts on water

21 resources and regulated wetlands; potential

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1 offset measures for impacts on historic

2 resources, wetlands, and threatened and

3 endangered (T&E) species; and avoidance of

4 offsite exposure to glare from solar panels;

5 among other measures. In addition, many of the

6 proposed Certificate Conditions are

7 administrative, or standard construction

8 conditions and, in the expert opinions of DPS

9 Staff, are reasonable for any major electric

10 solar generation project. The Facility, as

11 proposed here and modified pursuant to the

12 proposed Certificate Conditions, would avoid,

13 minimize, or reasonably offset the potential for

14 the Project to result in adverse impacts in the

15 following areas: Land Use, Visual Resources,

16 Cultural Resources, Wetlands and Aquatic

17 Resources, Terrestrial Ecology and Rare Species,

18 Topography, Geology, Soils and Groundwater,

19 Transportation and Communication, Noise, and

20 Magnetic Fields, while fulfilling the objective

21 of constructing and operating an approximately

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1 50 megawatt (MW) generating capacity

2 photovoltaic solar electric facility.

3 Furthermore, the proposed Certificate Conditions

4 are generally consistent with Siting Board

5 policy and precedent developed through

6 certification proceedings for several solar and

7 wind energy projects (where applicable); include

8 specific provisions to address issues and

9 concerns for solar facility construction and

10 operation; and adequately address project-

11 specific concerns. The proposed Certificate

12 Conditions are supported by this proceeding’s

13 record.

14 Q. Does the Panel advise that the Application, as

15 amended, including all related supplemental

16 filings, stipulated Certificate Conditions, and

17 pre-filed direct testimonies and exhibits,

18 provides sufficient detail on the nature of the

19 probable environmental impacts of the

20 construction and operation of the Facility, for

21 the Siting Board to render a determination?

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1 A. Yes. The Application, as originally presented

2 by the Applicant, did not comply with all

3 Article 10 application requirements, or provide

4 sufficient measures for minimizing environmental

5 impacts of the construction and operation of the

6 Facility, or identify mitigation measures to

7 address all potential adverse impacts. However,

8 the Application, supplements, discovery

9 responses, and results of technical discussions

10 and negotiations leading to the Settlement

11 Package, provide sufficient detail on the nature

12 of the probable environmental impacts of the

13 Project. In addition, the proposed Certificate

14 Conditions and Compliance requirements contained

15 in the proposed SEEP Guide will impose

16 reasonable controls that, if adopted and

17 enforced, would enable the Siting Board to make

18 the required findings that environmental impacts

19 are minimized to the maximum extent practicable.

20 Electric Generation

21 Q. Does the Panel recommend that the Siting Board

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1 make a finding that the Project provides a

2 beneficial addition or substitution for electric

3 generation capacity of the State?

4 A. Yes. DPS Staff recommends that the Siting Board

5 find that the Project will result in a

6 beneficial addition of electric generation

7 capacity in the State.

8 Q. Please explain further.

9 A. DPS Staff does not dispute the Applicant’s

10 estimates of NYS electric energy market emission

11 impacts, as provided in Exhibit 8 of its

12 Application. Environmental emission impacts are

13 provided in the form of reductions of carbon

14 dioxide (CO2), sulfur dioxide (SO2), and nitrogen

15 oxides (NOx), as shown in Exhibit 8, Table 8.1

16 of the Application. The Applicant’s production

17 cost modeling illustrates that the proposed

18 Facility would have a de minimis impact on the

19 production from must-run units defined as

20 existing wind, hydroelectric, nuclear, and other

21 solar facilities, as shown in Exhibit 8, Table

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1 8-5. Exhibit 8(h) of the Application further

2 notes that operation of the Facility will not

3 result in any statistically significant impacts

4 to existing co-generation facilities.

5 Q. Does DPS Staff recommend that the Siting Board

6 make a finding that the Facility provides

7 consistency with energy policies and long-range

8 objectives contained in the most recent state

9 energy plan?

10 A. Yes. The Facility would provide benefits

11 consistent with the State’s policies regarding

12 energy generation and more specifically,

13 renewable energy generation. It would also help

14 the State meet its regional greenhouse gas

15 emissions goals.

16 Q. What is New York’s current policy on renewable

17 energy?

18 A. The Climate Leadership and Community Protection

19 Act (CLCPA), signed into law by Governor Cuomo

20 on June 18, 2019, establishes a clean energy

21 mandate of 70 percent renewable electricity by

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1 2030 and 100 percent renewable electricity by

2 2040. Prior to the CLCPA, The Energy to Lead,

3 2015 New York State Energy Plan (State Energy

4 Plan), stated that 50 percent of electricity

5 consumed in the State should be generated by

6 renewable sources by 2030.

7 Q. Are there any State-specific policies, plans or

8 programs currently enacted to effectuate the

9 State Energy Plan goal of 50 percent consumption

10 from renewable energy by 2030?

11 A. Yes. In Case 15-E-0302, Proceeding on Motion of

12 the Commission to Implement a Large-Scale

13 Renewable Program and a Clean Energy Standard,

14 Order Adopting a Clean Energy Standard (issued

15 August 1, 2016), the Commission established a

16 Clean Energy Standard (CES) designed to

17 encourage consumer-initiated clean energy

18 investments; supports new renewable generation

19 resources through regular solicitation of

20 renewable energy credits (RECs) and obligates

21 load serving entities to provide retail

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1 customers with increasing amounts of electricity

2 from new renewable generation sources; supports

3 the maintenance of certain at-risk facilities;

4 maximizes the value of potential new offshore

5 wind resources; and supports the preservation of

6 existing at-risk nuclear zero-emissions

7 attributes to serve retail customers.

8 Q. Does the Project, as proposed by the Applicant,

9 contribute to the goals as effectuated through

10 the Renewable Energy Standard?

11 A. Yes. As proposed, the energy for this Project

12 will be generated within the State of New York.

13 The Project’s renewable attributes will likely

14 be sold to New York’s load serving entities and

15 energy from the Project will be delivered for

16 consumption by New York customers.

17 Q. Is New York a member of any regional cap and

18 trade system aimed at reducing greenhouse gas

19 emissions?

20 A. Yes, New York is a member of the Regional

21 Greenhouse Gas Initiative (RGGI) which is a

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 regional marketplace that limits CO2 emissions

2 through a cap and trade program.

3 Q. Does the Project help the State of New York

4 contribute to a regional marketplace for

5 greenhouse gas emissions reductions?

6 A. Yes. The direct benefits of CO2 emissions

7 reductions are realized through the broader

8 regional marketplace that New York participates

9 in through RGGI.

10 Q. Will the Project result in a reduction of

11 greenhouse gas emissions?

12 A. Yes. The Applicant forecasted the environmental

13 impacts from the proposed commercial operation

14 of the Greene County Solar Facility, measured

15 relative to a “business as usual” base-case

16 (with the Facility not in-service) for the year

17 2023. The Applicant’s analysis estimated New

18 York’s impact on CO2 emissions would result in a

19 reduction of approximately 63,574 tons, as shown

20 in Exhibit 8, Table 8.1 of the Application.

21 This estimated reduction in CO2 emissions is

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1 consistent with DPS Staff’s in-house production

2 modeling analysis.

3 Public Interest

4 Q. Does DPS Staff recommend that the Siting Board

5 make a finding that construction and operation

6 of the Facility would serve the public interest?

7 A. Yes, subject to the Siting Board adopting the

8 Project modifications and conditions presented

9 in the proposed Settlement Package, including

10 the proposed Certificate Conditions to minimize

11 the environmental and other adverse impacts of

12 the Project.

13 Q. Please elaborate on these proposals.

14 A. If the Siting Board imposes the modifications

15 and conditions presented in the proposed

16 Certificate Conditions, the Project will

17 generally comply with the host municipalities’

18 land use restrictions and plans and could

19 provide additional income for local property

20 owners, additional real property tax revenues

21 for the local taxing jurisdictions, short-term

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1 construction jobs, and some long-term operation

2 and maintenance jobs. As discussed above, the

3 Project will result in environmental emissions

4 benefits in the form of reductions of CO2, SO2,

5 and NOx, as shown in Exhibit 8, Table 8.1 of the

6 Application. The Project would contribute

7 towards the goals of the RGGI and advance other

8 State Policy programs for increasing clean

9 electric energy production.

10 Q. Based on the Application and its supplements, do

11 there appear to be socioeconomic benefits

12 associated with the proposed Project?

13 A. Yes. The construction and operation of the

14 Facility will result in new direct jobs and

15 wages paid in the immediate Greene County area.

16 Q. Are the Applicant’s direct job impact estimates

17 for the Project reasonable?

18 A. The Applicant’s direct construction and

19 operation job impact estimates, including the

20 confidential estimate of direct jobs provided by

21 the Applicant to New York State Energy Research

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 and Development Authority (NYSERDA), which is

2 contained in the Applicant’s confidential

3 response to IR DPS-3, appear to be reasonable

4 for the scale of the Project as compared to

5 other New York State solar generation projects.

6 However, because the job impact numbers are

7 estimates, which may change according to Project

8 timelines, budgets and other factors, DPS Staff

9 is supporting proposed Certificate Condition 38,

10 which requires the Applicant to file with the

11 Secretary, within one year after the Project

12 becomes operational, a tracking report of the

13 actual number of direct jobs created and

14 payments to local jurisdictions made during the

15 construction and operational phases of the

16 Project.

17 Q. Why is DPS Staff making this recommendation?

18 A. This after-the-fact tracking will allow DPS

19 Staff, the relevant Stakeholders, and the Siting

20 Board to assess the accuracy of the estimated

21 direct job impacts, and actual payments to local

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1 jurisdictions, and will enable DPS Staff and the

2 Siting Board to ascertain the reasonableness of

3 job impact estimates for other future major

4 electric generation projects within the State.

5 Moreover, this is consistent with several other

6 Certificate Conditions adopted by the Siting

7 Board in other Article 10 cases.

8 Environmental Impacts or Mitigation or Avoidance

9 Q. Does DPS Staff recommend that the Siting Board

10 make a finding that the adverse environmental

11 effects of the Facility’s construction and

12 operation are minimized or avoided to the

13 maximum extent practicable?

14 A. Yes. The Siting Board can find that the adverse

15 environmental effects of the Facility’s

16 construction and operation are or can be

17 minimized or avoided to the maximum extent

18 practicable, subject to the adoption of the

19 modifications and conditions presented in the

20 Settlement Package, including the proposed

21 Certificate Conditions, as necessary to minimize

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1 the environmental and other adverse impacts of

2 the Project. As initially proposed by the

3 Applicant, DPS Staff was of the opinion that the

4 Project did not minimize or avoid, to the

5 maximum extent practicable, adverse

6 environmental impacts. However, with the

7 Project modifications, as well as the design,

8 performance and mitigation measures included in

9 the proposed Certificate Conditions, which,

10 among other things, propose measures to avoid,

11 minimize or mitigate impacts to: wildlife;

12 geology and water resources; land uses,

13 including adjoining residential properties and

14 agricultural lands comprising the Facility Site;

15 visual, historic and cultural resources; and

16 potential noise receptors, DPS Staff recommends

17 that the Siting Board can make the required

18 findings. These conditions also include

19 specific requirements for the filing, review,

20 and approval of final construction plans;

21 traffic control plans; grading details; access

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1 road designs; and environmental monitoring which

2 will ensure that the Facility is constructed in

3 a safe and responsible manner.

4 Q. Please explain further how the Applicant has

5 avoided and minimized impacts to wetlands,

6 archeological resources, T&E species habitat,

7 and agricultural resources.

8 A. The Applicant agreed to Facility design layouts

9 that avoid and minimize impacts to wetlands, T&E

10 species habitat, and agricultural resources to

11 the maximum extent practicable. The proposed

12 Facility design also takes into consideration

13 constraints from archeological resources in the

14 Project area and landowner preferences. Subject

15 to adopting the Settlement Package, the Siting

16 Board can, accordingly, find that the Facility’s

17 construction and operation minimizes or avoids

18 impacts to agricultural resources, wetlands and

19 T&E species to the maximum extent practicable.

20 Q. Has the Applicant avoided or minimized impacts

21 to state-protected streams?

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 A. Yes. Exhibit 23 of the Application identifies

2 five surface water bodies that may experience

3 temporary impacts during project construction,

4 based on the anticipated limits of disturbance.

5 However, there are no State-protected streams

6 within the proposed Facility site that would be

7 affected by the construction and operation of

8 the Facility. The proposed Certificate

9 Conditions and proposed SEEP Guide include

10 several requirements designed to avoid or

11 minimize adverse stream impacts to the maximum

12 extent practicable, including minimum setbacks,

13 construction practices, and site restoration

14 standards.

15 Q. Has the Applicant avoided or minimized adverse

16 impacts to drinking water resources?

17 A. Yes. The proposed Certificate Conditions would

18 require the Certificate Holder to adhere to

19 Facility component setbacks that are consistent

20 with applicable New York State Department of

21 Health potable water well setback requirements.

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 The proposed Certificate Conditions also

2 include setback requirements from potable water

3 supply wells on non-participating properties for

4 certain construction activities including

5 horizontal directional drilling and pier and

6 post installations, prohibit blasting, and

7 require the Certificate Holder to perform pre-

8 and post-construction water quality monitoring

9 for wells on nearby non-participating

10 properties. If the post-construction water

11 samples fail to meet NYS water potability

12 standards, the Certificate Holder will be

13 required to construct a new well in consultation

14 with the landowner. To ensure compliance with

15 these potable water well protection

16 requirements, proposed Certificate Condition

17 50(c) requires the Certificate Holder to

18 distribute a private water well survey to

19 property owners within a 1,000 foot radius of

20 the Facility Site. These requirements are

21 consistent with Siting Board precedent in

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1 multiple previous Article 10 siting cases and

2 meet or exceed all applicable federal and State

3 requirements and guidelines for water quality

4 protection.

5 Q. Will the Project cause adverse water quality

6 impacts to surface water drinking water

7 resources?

8 A. Adverse impacts to surface water drinking water

9 resources are not anticipated. The closest

10 surface water body that serves as a drinking

11 water source is Sleepy Hollow Lake, which is

12 located approximately 0.5 miles from the

13 Facility Site. As indicated in the Applicant’s

14 response to IR Municipalities-3, current

15 agricultural uses of the Facility Site likely

16 contribute to water quality impairments of the

17 Lake due to sediment transport and erosion. As

18 proposed, the Project would convert existing

19 rotational crop agricultural uses to maintained

20 grassland, thus improving soil stabilization and

21 reducing sedimentation runoff and nutrient

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 loading in Sleepy Hollow Lake and its

2 tributaries. Furthermore, the proposed

3 Certificate Conditions and SEEP Guide establish

4 requirements to ensure that adverse impacts from

5 stormwater runoff during construction are

6 adequately avoided or minimized to the maximum

7 extent practicable through the implementation of

8 approved stormwater and erosion control measures

9 in the final Stormwater Pollution Prevention

10 Plan.

11 Q. What measures has the Applicant taken to avoid

12 or minimize impacts to T&E species?

13 A. The proposed Certificate Conditions and SEEP

14 Guide will ensure the avoidance, minimization,

15 and mitigation of impacts to T&E Species. The

16 proposed Certificate Conditions would require

17 the Certificate Holder to document and maintain

18 records of observations of T&E species during

19 construction, restoration, maintenance, and

20 operation of the Facility and associated

21 facilities, and further require timely reporting

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1 and notification of such observations to the

2 appropriate regulatory agencies. If any T&E

3 species are observed, the proposed Certificate

4 Conditions require the establishment of

5 appropriate buffers to avoid further impacts.

6 The proposed Certificate Conditions include

7 protocols for incidental observations of T&E

8 species and discovery of T&E species nests or

9 dead, injured or damaged T&E individuals.

10 Q. Are there any protocols in place relating to

11 Northern Long-Eared Bats (NLEBs)?

12 A. Yes. The proposed Certificate Conditions

13 establish mandatory protocols if at any time

14 during the life of the Facility the presence of

15 NLEBs is discovered. Operation of the proposed

16 Project is not anticipated to cause mortality to

17 NLEBs or other bat species. Potential impacts

18 to NLEBs are primarily associated with

19 construction or maintenance activities in

20 occupied habitat. Accordingly, the proposed

21 Certificate Conditions prohibit removal of any

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 discovered roost trees and clearing within 150

2 feet of a documented summer occurrence or one

3 quarter mile of a documented winter occurrence.

4 Q. Is the proposed Project expected to impact any

5 grassland bird species?

6 A. Perhaps. The proposed Project has the potential

7 to impact grassland bird species (specifically

8 the Northern Harrier and Short-eared Owl) by

9 reducing habitat. To address impacts to these

10 species, proposed Certificate Condition 95(c)

11 and the proposed SEEP Guide require a final Net

12 Conservation Benefit Plan (NCBP) for the take of

13 State-listed grassland bird occupied habitat,

14 which must be prepared in consultation with, and

15 accepted by the NYSDEC, and filed prior to the

16 commencement of ground disturbance activities in

17 occupied habitat. The NCBP should demonstrate

18 that impacts to these species are avoided and

19 minimized to the greatest extent practicable and

20 that the potential take of T&E species is

21 mitigated.

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1 Q. Are there any special concerns with these

2 species during the winter season?

3 A. Yes. Northern Harrier and Short-eared Owl may

4 utilize suitable habitat within the boundaries

5 of the Facility Site during the winter season.

6 To avoid impacts to these species within the

7 potential occupied wintering habitat, the

8 proposed Certificate Conditions require work

9 windows between April 1 and October 31. The

10 Applicant has agreed to Conditions that require

11 the restoration of grassland habitat that is

12 temporarily disturbed by reseeding with an

13 appropriate native grassland mix.

14 Q. Does DPS Staff recommend that the Siting Board

15 make a finding that the Applicant has avoided,

16 offset, or minimized the impacts caused by the

17 Project upon the local community to the maximum

18 extent practicable using verifiable measures?

19 A. Yes. DPS Staff asserts that, as originally

20 proposed, the Facility would not avoid, minimize

21 or provide offsets for impacts on the

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1 environment or the community to the maximum

2 extent practicable. However, with the proposed

3 Certificate Conditions agreed upon in the

4 Settlement Package, DPS Staff believes the

5 Siting Board can make the required findings and

6 recommends that the Siting Board adopt these

7 Conditions.

8 Q. Has the Applicant minimized the impact to the

9 local community from noise generated by the

10 Project?

11 A. Yes. DPS Staff believes that the potential

12 adverse environmental noise impacts from the

13 operation of the Facility have been minimized,

14 with the design presented in the Application,

15 provided the Siting Board adopts the proposed

16 Certificate Conditions on noise and vibration,

17 the SEEP Guide provisions on noise, and the

18 Noise Complaint Resolution Protocol (NCRP)

19 included as Appendix B, (collectively, the

20 Noise Package), contained in the Settlement

21 Package filed by the Applicant.

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1 Q. What are the anticipated sound impacts from the

2 Facility as designed and as presented in the

3 Application?

4 A. The Application shows that the Project, as

5 designed, will produce a maximum daytime sound

6 level of 37 dBA at non-participating residences.

7 The Application shows that the Project will

8 produce a maximum nighttime sound level of 33

9 dBA at non-participating residences. The

10 maximum sound level at boundary lines and

11 portions of non-participating lands is estimated

12 to be 40 dBA during the daytime from the

13 inverters/transformer packages and 40 dBA during

14 the nighttime from the substation transformers.

15 Q. What is the scope of the proposed Certificate

16 Conditions concerning noise stipulated to for

17 this Project?

18 A. The parties stipulated to proposed Certificate

19 Conditions that contain noise limits for non-

20 participating residences, non-participating

21 portions of lands, and for participating

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1 residences that reasonably limit the daytime and

2 nighttime impacts from noise. Proposed

3 Certificate Conditions include provisions for

4 construction noise and refer to the NCRP, which

5 contains provisions about how complaints from

6 construction and operation of the Facility will

7 be filed, documented, handled, reported, and

8 resolved, should they occur. Also, the SEEP

9 Guide specifications on noise contain provisions

10 about how the final computer noise modeling and

11 tonality assessment will be presented during

12 Compliance Filings. The proposed Noise Package

13 will ensure that adverse environmental effects

14 from noise will be minimized to the maximum

15 extent practicable.

16 Q. Do the proposed Certificate Conditions and SEEP

17 Guide include a post-construction sound test?

18 A. No. Based on the estimated sound impacts from

19 the design and the Noise Package agreed to by

20 the Applicant, the Project does not require a

21 post-construction sound test at the most

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1 impacted participating and non-participating

2 residences during the first year of operation

3 (during leaf-on and leaf-off seasons), as has

4 been previously adopted for wind generating

5 facilities under Article 10. Instead, the

6 Applicant has agreed to present final design and

7 computer noise modeling 60 days prior to the

8 start of construction to demonstrate that the

9 final design, including any changes to the

10 design presented in the Application, complies

11 with all proposed Certificate Conditions on

12 noise. The Applicant has agreed to perform the

13 modeling and calculations by following the

14 provisions included in the section entitled

15 “Sound” in the proposed SEEP Guide. In

16 addition, the Applicant has agreed to follow the

17 NCRP to investigate noise complaints during

18 construction and operation, perform noise

19 measurements, and reduce sound levels or provide

20 mitigation, if necessary.

21 Q. What does DPS Staff recommend on noise impacts?

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1 A. DPS Staff recommends that the Siting Board adopt

2 proposed Certificate Conditions 41, 43 through

3 45, 72 through 74, and 83, the SEEP Guide

4 protocols on noise, and the NCRP so that the

5 adverse environmental noise effects from the

6 operation of the Facility are minimized or

7 avoided to the maximum extent practicable.

8 Q. Are there other areas where the Siting Board

9 should consider adverse environmental impacts?

10 A. Yes. The Siting Board should consider the

11 potential adverse environmental impacts

12 associated with decommissioning and site

13 restoration.

14 Q. Has the Applicant minimized or avoided probable

15 adverse environmental effects from the

16 construction and operation of the Facility?

17 A. Yes. If the Siting Board adopts the proposed

18 Certificate Conditions and SEEP Guide, it can

19 make the required findings that adverse

20 environmental effects of construction and

21 operation of the Facility will be minimized or

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1 avoided to the maximum extent practicable. As

2 part of Certificate Condition 51, filed in the

3 Settlement Package, the Applicant has committed

4 to providing, as a compliance filing, a final

5 “Decommissioning Plan” and proving financial

6 assurance in the form of a letter of credit to

7 be held by the Town of Coxsackie.

8 Q. What triggers decommissioning?

9 A. Certificate Condition 52 explains that

10 decommissioning can be triggered by 12

11 continuous months without energy production.

12 However, if the Certificate Holder petitions the

13 Secretary for more time due to a repair or

14 similar action (as further explained in

15 Certificate Condition 52) that is being

16 diligently pursued by the Certificate Holder,

17 decommissioning will not commence.

18 Q. Please explain the “Decommissioning Plan”

19 further.

20 A. The “Decommissioning Plan” will be required to

21 include an estimate (which is not permitted to

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1 include salvage or resale value as

2 decommissioning cost offsets) based on the final

3 Facility design. This estimate will be updated

4 by a qualified independent engineer, licensed to

5 practice engineering in the State of New York,

6 to reflect inflation and any other changes after

7 one year of Facility operation and every fifth

8 year thereafter. These estimates will be

9 submitted to the Secretary.

10 Q. Can you provide more details on the letter of

11 credit?

12 A. As part of the compliance filing, the

13 Certificate Holder must file proof that a letter

14 of credit has been obtained based on the final

15 decommissioning and site restoration estimate.

16 Copies of agreements between the Certificate

17 Holder and the Town of Coxsackie, establishing a

18 right for it to draw on the financial security

19 for decommissioning and site restoration

20 purposes must also be filed.

21 Q. Who receives notice when decommissioning

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1 activities are to begin?

2 A. The Plan shall include procedures and timeframes

3 for providing notice to the Town of Coxsackie,

4 NYSDEC, and host and adjacent landowners prior

5 to commencement of decommissioning activities.

6 Where former agricultural land will be returned

7 to its agricultural state, the Certificate

8 Holder will provide notice to NYSAGM and will

9 follow the restoration according to the Solar

10 Energy Projects – Construction mitigation for

11 Agricultural lands (Revision 10/18/2019) to the

12 maximum extent practicable and as described in

13 the Application.

14 Q. Is there anything further the Siting Board

15 should consider related to decommissioning?

16 A. Yes. Provisions and requirements regarding the

17 Decommissioning Plan and included in proposed

18 Certificate Condition 51 are consistent with DPS

19 Staff’s recommendations for past Article 10

20 cases and Siting Board Orders for Case numbers

21 14-F-0490, 15-F-0122, 16-F-0062, 16-F-0205, 16-

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 F-0328, 16-F-0559 and 17-F-0182.

2 State and Local Laws

3 Q. Does DPS Staff recommend that the Siting Board

4 make a finding that the Facility is designed to

5 operate in compliance with applicable State laws

6 and regulations?

7 A. Yes, subject to the Siting Board adopting the

8 proposed Certificate Conditions filed by the

9 Applicant. In addition, the following must be

10 demonstrated in the final Facility design,

11 construction plans and compliance filings:

12 protection of archeological resources;

13 conformance with water quality standards and

14 permitting standards for State-protected water

15 bodies and State-regulated wetlands; an approved

16 Stormwater Pollution Prevention Plan to

17 demonstrate conformance with State Pollution

18 Discharge Elimination Standards; and compliance

19 with provisions addressing incidental take of a

20 threatened species at 6 NYCRR Part 182 and

21 development of a final NCBP.

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1 Q. Is the proposed Facility in conformance with the

2 cultural resources provisions of Parks,

3 Recreation and Historic Preservation Law §14.09,

4 regarding historic and archeological resources?

5 A. The Application provided reports, an analysis,

6 and supplemental information was filed regarding

7 historic and archeological resource

8 investigations. DPS Staff notes that

9 consultation has reportedly been ongoing between

10 the Office of Parks Recreation and Historic

11 Preservation (OPRHP) and the federal Army Corps

12 of Engineers. On advice of counsel, the Panel

13 acknowledges that the ongoing review pursuant to

14 Section 106 of the National Historic

15 Preservation Act of 1966 supersedes the

16 requirements for review pursuant to NYS Parks,

17 Recreation and Historic Preservation Law §14.09.

18 Regardless of the jurisdictional provision,

19 proposed Certificate Condition 69(a) through (d)

20 requires demonstration of resource protection

21 measures, conformance with resource avoidance,

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1 and protection or mitigation measures as

2 recommended by the OPRHP State Historic

3 Preservation Officer in final design and SEEP

4 documents.

5 Q. Is the proposed Facility in conformance with the

6 Coastal Policy provisions applicable to NYS

7 agency review for consideration of actions

8 pursuant to Executive Regulations at 19 NYCRR 15

9 Part 600?

10 A. The Application Supplement, dated March 20,

11 2020, includes Attachment 4-C, which is a review

12 of State Coastal Area Policy provisions for the

13 limited extent of Facility components. The 285

14 feet-long northerly extent of the Central Hudson

15 Gas & Electric interconnection line to the

16 Coxsackie substation would be located within the

17 designated NYS Coastal Area. (Application Ex.

18 4(G), p. 2). The solar arrays, collection

19 system and Project substation, access roads

20 comprising the majority of the Applicants’

21 facilities are located nearby but are outside of

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 the Coastal Area boundary. Direct effects of

2 the Facility on coastal resources are expected

3 to be minimal, since only 250 feet of electric

4 lines are to be located in the Coastal Area.

5 Q. Are there any anticipated visual effects?

6 A. Visual effects of the proposed Facility on the

7 Columbia-Greene North sub-units in the

8 designated Scenic Area of Statewide Significance

9 (SASS), established as part of the Coastal Area

10 program, are considered and analyzed in

11 Application Exhibit 24 and the Visual Impact

12 Assessment (VIA). The VIA characterizes visual

13 effects of the Facility from the vicinity of the

14 SASS in the Lampman Hill area, including from

15 NYS Route 385 (a designated NYS Scenic Highway),

16 in the area south of the Village of Coxsackie,

17 which traverses the SASS area, with some limited

18 views westerly toward the Catskill Mountains

19 Eastern Escarpment. There will be limited

20 potential visibility of the proposed facilities

21 from nearby or within the SASS area. Visibility

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 is expected to be limited to the interconnection

2 line and interconnection substation, which will

3 be provided by CHGE rather than the Applicant;

4 that will be a minor addition to similar

5 existing pole lines and substation equipment.

6 Q. How will effects on visual aspects be avoided or

7 minimized?

8 A. Project aspects such as lighting controls,

9 vegetation clearing limitations, and the use of

10 landscape screen plantings and maintenance

11 practices, as required by the proposed

12 Certificate Conditions, will effectively avoid

13 or minimize significant effects on visual

14 resources, including the SASS areas.

15 Q. Does the Panel recommend that the Siting Board

16 find that the Facility conforms with the State

17 Coastal Area Policy provisions?

18 A. Yes. The Siting Board can find that the Facility

19 generally conforms to the requirements of the

20 Coastal policies. The benefits that the

21 Facility will provide would offset any potential

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 minor policy inconsistency, effectively

2 conforming with 19 NYCRR 15 Part 600.

3 Q. Has the Applicant requested the Siting Board

4 elect not to apply any local law provisions?

5 A. The Applicant has requested that the Siting

6 Board waive three provisions of local laws, as

7 indicated in Application Exhibit 31. The

8 Applicant requests that the Board waive the Town

9 of Coxsackie’s zoning district restrictions for

10 utility-scale solar (Code §§ 167-6(B)(1), (2)),

11 lot coverage (Code § 167-6(B)(5)), and buried

12 lines and wiring (Code § 167-6(C)(4)(q)). The

13 Applicant requests that the Siting Board

14 determine these three provisions to be

15 unreasonably burdensome in light of existing

16 technology, cost/economics, or consumer needs,

17 and shall not apply to the Facility.

18 Q. Does the Panel recommend these provisions be

19 waived?

20 A. As proposed and revised, the Facilities would

21 conflict with these provisions, and issuance of

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 a Certificate would need to include the

2 requested waivers. The proposed Settlement

3 Package includes recommended certificate

4 conditions that, if implemented, would avoid,

5 minimize or mitigate impacts due to siting,

6 construction and operation of the Facilities to

7 the extent practicable. Without granting the

8 waivers, the Facilities likely cannot be

9 constructed and operated.

10 Public Involvement

11 Q. What does Article 10 require in terms of public

12 involvement?

13 A. Article 10 regulations mandate that an applicant

14 actively seek public involvement throughout the

15 Article 10 process, including planning, pre-

16 application, certification, compliance and

17 implementation phases.

18 Q. For what purpose?

19 A. It is the policy of the Siting Board to enable

20 the public to participate in the decisions that

21 affect their health, safety and the environment.

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1 The goal is to facilitate communication between

2 applicants and interested or affected

3 stakeholders; solicit public comments, ideas and

4 local expertise; provide timely notice of

5 proposed project milestones and events; and to

6 encourage the public and interested parties to

7 engage in the process and provide input into key

8 decisions. A robust public involvement program

9 will ensure that the Siting Board is aware of

10 stakeholder concerns when deciding whether to

11 award a Certificate of Environmental

12 Compatibility and Public Need to the Applicant.

13 Q. How does public involvement become part of the

14 Article 10 process?

15 A. Applicants are expected to communicate with the

16 public early in the process and establish a

17 community presence. The Article 10 regulations

18 at 16 NYCRR §1000.4 require applicants to

19 develop and implement a Public Involvement

20 Program (PIP) Plan. The PIP Plan must include:

21 consultation with affected agencies and other

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1 stakeholders; pre-application activities to

2 encourage stakeholder participation at the

3 earliest opportunity, as well as activities

4 during certification and compliance; activities

5 to educate the public about the proposed project

6 and the Article 10 process; and the

7 establishment of a project website to

8 disseminate information to the public.

9 Q. Did the Applicant for the Hecate Energy Greene

10 Solar Facility develop a PIP Plan?

11 A. Yes. The Applicant filed a PIP Plan with the

12 Department in October 2017. DPS Staff reviewed

13 the PIP Plan and the Applicant filed a revised

14 PIP Plan in December 2017.

15 Q. What elements were included in the Applicant’s

16 PIP Plan?

17 A. The Applicant stated in the PIP Plan that it had

18 identified several categories of stakeholders

19 that may be interested or affected by the

20 construction and operation of the proposed

21 Project, including: affected federal, state and

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1 local agencies; school districts; host and

2 adjacent landowners; municipalities in facility

3 and study areas; legislative representatives;

4 utilities; and public interest groups. The

5 Applicant identified additional stakeholders

6 from their previous experience in developing

7 other projects, reviewing County GIS records and

8 tax records, conducting personal visits, and

9 researching the internet. The Applicant also

10 received guidance from DPS Staff. The PIP Plan

11 described how the Applicant planned to foster

12 participation in the Article 10 process by

13 disseminating Project information using the

14 Stakeholder List, soliciting knowledge through

15 consultation with affected agencies and

16 stakeholders, and conducting activities designed

17 to educate the public about the Project, the

18 process and intervenor funding opportunities.

19 The Applicant established a Project website,

20 document repositories, and a toll-free telephone

21 number for public access to Project information.

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 From January 2017 through September 2020, the

2 Applicant has logged its consultation and

3 outreach activities. The logs are included in

4 the Hecate Greene Solar case file (Case number

5 17-F-0619) on the Department’s website at:

6 www.dps.ny.gov.

7 Q. Throughout the pre-application, scoping and

8 application phases, did the Applicant implement

9 a public involvement program as described in the

10 PIP Plan?

11 A. Yes. The Applicant encouraged participation and

12 sought input from municipal officials and

13 affected local, state and federal agencies, as

14 evidenced in the meeting logs. In addition, the

15 Applicant communicated with other stakeholders

16 via telephone, letter, email, newspaper

17 notifications and in-person meetings. The

18 Applicant hosted an open house for the public on

19 February 21, 2018, at the Coxsackie Village

20 Hall, prior to the submission of the Preliminary

21 Scoping Statement on May 25, 2018. The Applicant

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1 posted notice of the open house meeting in the

2 local newspaper of record and sent letters and

3 e-mails to stakeholders. The Applicant attended

4 Town Board Meetings which were open to the

5 public. The Applicant provided access to

6 Project information through the Project website

7 and established local document repositories.

8 Q. In addition to the PIP Plan developed and

9 implemented by the Applicant, did the Siting

10 Board conduct other public involvement

11 activities?

12 A. Yes. As part of the Document and Matter

13 Management (DMM) system on the Department’s

14 website, the Department maintains a list of

15 parties to the case, as well as individuals and

16 organizations that request to be informed of

17 Project filings.

18 Q. How does the Siting Board use the party list and

19 service list?

20 A. The individuals and organizations on the party

21 and service lists are advised, by mail or email,

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 of filings, rulings and notices of Project

2 milestones, such as the availability of

3 intervenor funding. The lists are also used to

4 inform parties of Project activities, such as

5 comment periods, procedural conferences,

6 technical conferences and public statement

7 hearings.

8 Q. Has the Siting Board issued press releases or

9 conducted mailings concerning public forums and

10 public statement hearings about the Project?

11 A. Yes. On September 2, 2020, the Siting Board

12 deemed the Application to be in compliance with

13 PSL §164 and established a date for public

14 statement hearings to commence. The Siting

15 Board issued a press release on September 15,

16 2020 and September 22, 2020, respectively

17 concerning the forums and public statement

18 hearings. Members of the public that desired to

19 make a statement could do so by mail, e-mail,

20 telephone hotline or go directly to the DMM

21 system tab to submit their comments.

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Q. Besides the development and implementation of

2 the PIP Plan, are there other ways for the

3 public to be involved in the Article 10 process?

4 A. Yes. Applicants are required to provide funds

5 for parties that participate in the Article 10

6 process. The funds, known as “intervenor

7 funds,” are collected by assessing a fee on the

8 Applicant. The fee, as set forth by PSL §163(4)

9 and §164(6), varies depending on the stage of

10 the project. When an applicant submits a PSS,

11 it is assessed a fee equal to $350 per 1 MW of

12 the project’s generation capacity, with a cap of

13 $200,000. When an application is filed, the

14 applicant must pay a fee of $1,000 per 1 MW of

15 the project’s generation capacity, with a cap of

16 $400,000. Additional fees may be assessed if

17 the applicant revises the application and it

18 requires additional scrutiny or to ensure an

19 adequate record for the Siting Board’s review.

20 Q. What intervenor fees did the Applicant submit in

21 this case?

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 A. Upon filing the PSS and Application, the

2 Applicant submitted intervenor fees of $17,500

3 and $50,000, respectively.

4 Q. How do the intervenor funds ensure public

5 participation in the process?

6 A. The intervenor funds can be used to help defray

7 expenses incurred by municipalities and local

8 parties that participate in the scoping process

9 and in the proceeding to consider the

10 application. The funds can be used to pay for

11 expert witnesses, consultants and legal fees.

12 Q. Have intervenor funds been assessed and awarded

13 in this proceeding?

14 A. Yes. The Town and Village of Coxsackie, Saving

15 Greene and Sleepy Hollow Lake were awarded pre-

16 application and application stage funding, while

17 The Greene Land Trust and Scenic Hudson were

18 jointly awarded application stage funding. The

19 intervenors have been granted awards to ensure

20 their constituents are represented in the

21 Article 10 process and that the Siting Board has

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1 a complete record on which to base their

2 decision regarding the Facility.

3 Q. Will there be additional public involvement and

4 education requirements during the certification

5 and compliance stages of the Article 10 process?

6 A. Yes. There are public involvement procedures

7 identified in the Project Application regarding

8 notifying the public of Project milestones and

9 site activities, as well as the development and

10 implementation of a complaint resolution plan.

11 In addition, the proposed Certificate Conditions

12 include conditions that the Certificate Holder

13 is required to meet regarding public

14 notifications and complaint resolution

15 procedures. These conditions will ensure that

16 complaints regarding the Facility are handled

17 consistently and that the public will continue

18 to receive information about the Project. The

19 proposed Certificate Conditions are reasonable

20 for this type of project and should be adopted

21 by the Siting Board.

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 Q. Have there been public comments submitted to the

2 Siting Board regarding the proposed Project?

3 A. Yes. There have been approximately 240 public

4 comments submitted throughout the process,

5 beginning in March 2018 through November 2020.

6 Q. Did DPS Staff review the public comments

7 received by the Siting Board about the Hecate

8 Greene Solar Project?

9 A. Yes. DPS Staff reviewed comments received via

10 DMM filings, letters and e-mails to the Siting

11 Board. DPS Staff analyzed the case record,

12 including the public comments, when developing

13 this testimony.

14 Q. Are copies of these comments kept for public

15 review?

16 A. Yes. The comments can be found in the

17 Department’s DMM system, on the Department’s

18 website, under the Hecate Energy Greene case

19 file (Case 17-F-0619).

20 Q. Can you characterize the nature of the comments?

21 A. Approximately 80% of the comments received are

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1 in opposition to the Project.

2 Q. What comments did the Siting Board receive from

3 people who are opposed to the Project?

4 A. In summary, the people opposed to the Project

5 are concerned about the potential disruption to

6 wildlife and impacts to the environment, public

7 health, local community, visual resources, and

8 property values. Comments regarding the

9 environment are concerned that the Project may

10 negatively affect the following: migratory

11 flight patterns, which will affect wildlife

12 migration; endangered species; wetlands;

13 biosystems; the local dam and potential life

14 threatening flooding if the dam is breached by a

15 storm; and local drinking water contamination

16 from solar panel run-off. Other concerns that

17 were raised include: the use of chemicals to

18 control vegetation; insufficient information

19 regarding health risks; interference with the

20 viewshed, natural beauty, and lifestyle of the

21 area; diminished landscape; too many solar

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 projects in the area; the energy will be sent

2 downstate and out of state; and the northeast is

3 not an effective location to host solar panels.

4 A few commenters stated they were concerned that

5 the Project is: unlikely to ever be

6 decommissioned; too large for the area; poorly

7 sited and will affect the loss of farmland; and

8 it will affect the historic and rural

9 characteristic of the area. Comments also stated

10 that the Town needs time to set up new zoning

11 laws and did not want the Project to be pushed

12 through. Agricultural concerns include: the need

13 to preserve and develop land for sustainable

14 agriculture and how the change from agricultural

15 to commercial purposes will affect the area.

16 Other commenters claim that the Project doesn’t

17 fully support the NYS Carbon Neutral Quota; it

18 is against the will of the people; the panels

19 and substation are too close to residences; and

20 property values will be reduced. Some comments

21 criticized the Article 10 process and the

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1 Applicant for not reaching out to adjacent

2 landowners or informing the community in general

3 about the Project. Commenters indicated that the

4 Applicant’s public outreach and notifications

5 were inadequate and questioned the

6 trustworthiness of the Applicant. One commenter

7 stated that this Project could negatively impact

8 her horses and business. Another commenter

9 suggested that energy production should be a

10 shared responsibility for every county.

11 Q. What comments did the Siting Board receive from

12 people who support the Project?

13 A. In summary, the people who are in support

14 indicated that the Project would be beneficial

15 to the community and provide economic and

16 environmental improvements. Some noted that the

17 Project will increase revenues for the Town,

18 Library, Fire Department, and property owners.

19 Commenters also stressed the need to work

20 together on climate change. Some believe that

21 the Project is a great opportunity for Coxsackie

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 to be a pioneer in renewable solar energy and to

2 help New York State meet renewable energy goals,

3 provide positive effects on CO2 levels and

4 reduce fossil fuel dependence. A few comments

5 discussed the Applicant’s concern for wildlife

6 and how Sleepy Hollow Lake will benefit from

7 reduced run-off from farming activities. Other

8 positive comments were pro-development and noted

9 that the location of the Project is not a

10 densely populated area, there is plenty of space

11 and the farmland is not prime or productive.

12 Q. Did the Applicant address the concerns raised by

13 the public about the proposed Project?

14 A. Yes. The concerns brought to the Applicant’s

15 attention by members of the public have been

16 addressed in the various exhibits in the

17 Application and proposed Certificate Conditions.

18 Q. Is there anything else the Siting Board should

19 consider in rendering its determination?

20 A. If the Siting Board decides to grant a

21 Certificate, it should, at a minimum, adopt the

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 proposed Certificate Conditions, including many

2 provisions for compliance filings to be

3 submitted for review and approval pursuant to 16

4 NYCRR §1002.2 and §1002.3, and information

5 reports documenting compliance, submitted

6 pursuant to 16 NYCRR §1002.4. Further, any

7 grant of a Certificate should include delegation

8 of inspection and stop-work authority to

9 appropriate DPS Staff to enforce the

10 environmental, engineering, public safety, and

11 public interest requirements in those

12 Certificate Conditions.

13 Q. Is there anything further?

14 A. Yes. Through the settlement process and the

15 documents that parties have stipulated to in the

16 Settlement Package, the issues that DPS Staff

17 raised early in this proceeding have been

18 resolved. DPS Staff anticipated litigating

19 several issues, including noise, visual impacts,

20 blasting, T&E species, drinking water resources,

21 site restoration and decommissioning, and local

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CASE 17-F-0619 DPS STAFF SETTLEMENT PANEL

1 laws conformance. Through information provided

2 in discovery, proposed Certificate Conditions,

3 and the proposed SEEP Guide, DPS Staff is

4 satisfied that all potential issues and issues

5 initially believed would require litigation have

6 been resolved.

7 Q. Does this conclude the Panel’s testimony at this

8 time?

9 A. Yes.

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2 A.L.J. COSTELLO: And with that, we

3 will turn that -- turn it over for cross-examination

4 to counsel for the municipalities.

5 MS. KEMP: Thank you, Your Honor. I’m

6 going to refer to the Department’s direct testimony.

7 I’d like to turn your attention to page 65, line 20,

8 through page 66 of the Staff Panel’s testimony

9 addressing local law compliance and waivers. With

10 respect to the requested local law waivers, the Panel

11 states that, “The proposed settlement package

12 includes recommended certificate conditions that if

13 implemented would avoid, minimize, or mitigate

14 impacts due to sited, construction, and operation

15 facility to the extent practicable?

16 UNIDENTIFIED SPEAKER: Bye. Bye.

17 MS. KEMP: Can -- can you identify

18 what conditions specifically mitigate for the impact

19 of siting the project in the town’s rural

20 agricultural district in violation of the town’s

21 solar law?

22 MS. BEHNKE: Your Honor, this is

23 Heather Behnke. I object to the question. It’s

24 asking for a legal conclusion.

25 MS. KEMP: Your -- Your Honor, the 274

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2 Staff Testified that certificate conditions, if

3 implemented, would mitigate or minimize impacts, and

4 I’m asking that they identify those certificate

5 conditions.

6 A.L.J. COSTELLO: Since that is part

7 of their testimony, I think that’s a fair question to

8 ask. So the -- the objection’s overruled.

9 MS. BEHNKE: My -- Your Honor, my

10 objection was to the second part of the question,

11 that is assumes it was in violation of the town law.

12 A.L.J. COSTELLO: That -- that --

13 okay, that’s fine. We -- if you can just rephrase

14 your questions so that you ask what you want them to

15 identify, what significant conditions, without

16 characterizing it as a violation of town law?

17 MS. KEMP: Sure. Thank you, Your

18 Honor. The applicant has requested a waiver of the

19 section of the town’s solar law, which restricts

20 siting of utility scale solar facilities to the

21 commercial and industrial districts. Can you

22 identify what certificate condition specifically

23 mitigates the impacts of that waiver?

24 MR. DAVIS: I need to review the

25 certificate conditions, and I -- I’m having trouble 275

1 2-10-2021 - Hecate Energy - 17-F-0619

2 getting that document on my computer. So I could

3 bear your patience for a minute.

4 THE REPORTER: And who is speaking?

5 MR. DAVIS: Andrew Davis here.

6 THE REPORTER: Thank you.

7 MR. FLAUM: Jeremy Flaum. Can you

8 please restate the question? There was some

9 background noise at the beginning of your question,

10 and I could not understand what you were saying.

11 MS. KEMP: Sure. On page 65, line 20

12 of your testimony, you state that, “The proposed

13 settlement package includes recommended certificate

14 conditions that if implemented would avoid, minimize,

15 or mitigate impacts due to siting, construction,

16 and operation facility to the extent practicable.”

17 This was said with respect to the requested local law

18 waivers. So I -- I would appreciate it if you could

19 identify the certificate conditions that specifically

20 mitigate for the waiver of the town’s solar law,

21 which restricts utility scale solar to the commercial

22 and industrial districts.

23 MR. DAVIS: I’m sorry. I’m having

24 trouble finding the document.

25 MR. FLAUM: Jeremy Flaum. I don’t 276

1 2-10-2021 - Hecate Energy - 17-F-0619

2 think that testimony says there are specific

3 conditions that address the town law. I think that’s

4 a mischaracter -- mischaracterization of our

5 testimony.

6 MS. KEMP: On -- on page 65, line 18

7 of your testimony, question: “Does the Panel

8 recommend that these provisions be waived?” Answer:

9 “As proposed and revised, the facilities would

10 conflict with these revisions, and issuance of a

11 certificate would need to include the requested

12 waivers. For post-settlement package, it includes

13 recommended certificate conditions, that if

14 implemented, would avoid, minimize, or mitigate

15 impacts due to siting, construction, and operation

16 facility to the extent practicable. Without granting

17 the waivers, the facilities likely cannot be

18 constructed and operate.” Is it -- is it your

19 position that there is no specific certificate

20 condition that mitigates for siting this project in

21 the rural agricultural district?

22 MR. DAVIS: Oh, Andy Davis here. I’m

23 still -- I’m embarrassed to say, I’m having trouble

24 finding the document. I have -- my computer is

25 loading very slow today. I would suggest the several 277

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2 conditions regarding visual impact reduce or mitigate

3 significant impact within that district.

4 MS. KEMP: Thank you. I -- I can move

5 on. Are you aware of any mapping alternatives

6 analysis or calculations submitted by the applicant

7 to support its argument that there’s insufficient

8 land in the town’s commercial and industrial

9 districts to support the project?

10 MR. FLAUM: Jeremy --

11 MR. DAVIS: Excuse me. Go ahead,

12 Jeremy.

13 MR. FLAUM: Jeremy Flaum. I’m not

14 immediately aware of any specific figures showing

15 that, but I do recall the applicant submitting

16 testimony on that, and responding as much in cross-

17 examination earlier today.

18 MS. KEMP: Thank you. And -- and did

19 the applicant provide any analysis addressing whether

20 the facility could be located in part in the

21 commercial and industrial districts in its

22 application?

23 MR. FLAUM: Jeremy Flaum. I recall

24 the applicant’s witnesses earlier today stating that

25 they did not have land rights in such locations. 278

1 2-10-2021 - Hecate Energy - 17-F-0619

2 MS. KEMP: And is it the Department’s

3 position that the applicant’s request for a waiver of

4 this zoning restriction is the minimum necessary?

5 MR. DAVIS: It’s the minimum necessary

6 to utilize the land rights that a company has

7 acquired and is using for its proposal layout.

8 MS. KEMP: On page 23, line 1 of your

9 testimony, you state, “The siting board shall not grant

10 a certificate, either as proposed or modified without

11 explicit findings on the cumulative environmental

12 impacts of facility.” Can you describe the cumulative

13 impacts that the Department reviewed?

14 MR. DAVIS: I’m sorry, that -- what

15 page reference?

16 BY MS. KEMP: (Cont.)

17 Q. This is page 23, line 1.

18 A. (Davis) And I’m sorry. Your

19 question again? Andy Davis.

20 Q. Can you describe the cumulative

21 impacts the Department reviewed?

22 A. Yes. The cumulative

23 environmental impacts of the construction and

24 operation of the facility, including its

25 interconnection, facility is assessed for visual 279

1 2-10-2021 - Hecate Energy - 17-F-0619

2 impact.

3 Q. And did the Department

4 specifically consider the Flint Mine project as part

5 of the cumulative review?

6 A. No, not necessarily.

7 Q. And did the Department consider

8 cumulative impacts on community character as part of

9 its review of the application?

10 A. Reviewing the -- again, as I

11 stated a moment ago, the cumulative visual impacts of

12 the facility were reviewed, including the facility

13 and the related interconnection facilities were

14 reviewed for their cumulative effects.

15 Q. So the Department reviewed the

16 visual impacts cumulatively of both the Flint Mine

17 project and the Hecate project, is that correct?

18 A. No, we did not. We followed the

19 requirement of the statute that cumulative

20 environmental impacts of the generating facility and

21 its interconnection facilities were -- were reviewed,

22 as required.

23 Q. Did the Department consider the

24 cumulative impacts on community character of the

25 Flint Mine project and the Hecate project in its 280

1 2-10-2021 - Hecate Energy - 17-F-0619

2 review?

3 A. I believe I answered that

4 question.

5 Q. For the record, I would

6 appreciate it if you could then repeat your answer.

7 MS. PARTYKA: Object, Your Honor --

8 asked and answered.

9 A.L.J. COSTELLO: It’s just --

10 MS. KEMP: Your Honor --

11 A.L.J. COSTELLO: Yeah, just answer.

12 Just -- just restate the answer to your -- to that

13 question. And I understand what your testimony says,

14 the pre-filed testimony states what cumulative

15 impacts you’ve reviewed. But just, instead of going

16 through this whole exercise, just state whether --

17 respond to the question, the -- the latest question.

18 MR. DAVIS: In this, in the testimony

19 for Hecate Green, we reviewed the cumulative visual

20 impacts of this facility and its interconnection

21 facilities. We did not specifically do a cumulative

22 visual impact assessment of this project and the

23 Flint Mine solar project proposal.

24 MS. KEMP: And are you aware of any

25 other town or city in the state where over 9% of the 281

1 2-10-2021 - Hecate Energy - 17-F-0619

2 land in the town falls within the proposed facility

3 areas of a utility scale solar project?

4 MR. DAVIS: I’m not aware. Mr. Flaum

5 might have a different answer.

6 MR. FLAUM: Jeremy Flaum. I am not

7 aware.

8 MS. KEMP: Is it possible that the

9 Hecate project and the Flint Mine project could have

10 a cumulative adverse impact on the community

11 character of the municipalities?

12 MS. PARTYKA: Objection, Your Honor,

13 calls for speculation.

14 A.L.J. COSTELLO: That’s sustained.

15 MS. KEMP: I have no further

16 questions, Your Honor. Thank you.

17 MS. PARTYKA: Your Honor, if I could

18 have a moment to confer with Jeremy and Andy to see

19 if I need to do any redirect, please?

20 A.L.J. COSTELLO: Sure. Do you want

21 to take five minutes?

22 MS. PARTYKA: That would be great,

23 thank you.

24 A.L.J. COSTELLO: So say 12:30 we’ll

25 be back. 282

1 2-10-2021 - Hecate Energy - 17-F-0619

2 MS. PARTYKA: Thank you, Your Honor.

3 THE REPORTER: Off the record.

4 (Off the record 12:25 p.m.)

5 (On the record 12:30 p.m.)

6 A.L.J. COSTELLO: And we could --

7 okay. Counsel, do you have any redirect?

8 MS. PARTYKA: Your Honor, this is

9 Cassandra Partyka. And, no, we have no further

10 questioning or any redirect.

11 A.L.J. COSTELLO: Okay, thank you very

12 much. And I want to thank --

13 MS. PARTYKA: Thank you, Your Honor.

14 A.L.J. COSTELLO: -- the witnesses.

15 And you’re excused.

16 MR. DAVIS: Thank you.

17 A.L.J. COSTELLO: Okay. And we have a

18 cross-examination for the Department of Agriculture &

19 Markets. So I will ask counsel to call the witness.

20 MS. WELLS: I’m -- I’m sorry, can you

21 repeat that. This is Tara Wells.

22 A.L.J. COSTELLO: Yeah. We have -- we

23 have -- you have to call your witness with respect to

24 -- and we can swear them in and have their testimony

25 -- 283

1 2-10-2021 - Hecate Energy - 17-F-0619

2 MS. WELLS: Okay.

3 A.L.J. COSTELLO: -- admitted into the

4 record.

5 MS. WELLS: Yes. All right. So I’m

6 going to call Jason Mulford. Jason, are you there?

7 MR. MULFORD: I’m here. I’m here.

8 A.L.J. COSTELLO: Okay. And let me

9 just say, Mr. Mulford, just state your name and

10 business address for the record.

11 MR. MULFORD: I’m Jason Mulford, 10B

12 Airline Drive, Albany, New York, 12235.

13 A.L.J. COSTELLO: Do you swear or

14 affirm that the testimony that you provide is the

15 truth?

16 MR. MULFORD: I affirm.

17 JASON MULFORD; SWORN

18 A.L.J. COSTELLO: Okay, thank you.

19 And, Counsel, you may proceed.

20 MS. WELLS: Thank you. Jason, do you

21 have your pre-filed testimony dated October 18th, 2020

22 in front of you?

23 MR. MULFORD: I do.

24 MS. WELLS: Okay. So -- and is that

25 the pre-filed testimony that is labeled, “Direct 284

1 2-10-2021 - Hecate Energy - 17-F-0619

2 Testimony of Jason Mulford”?

3 MR. MULFORD: It is.

4 MS. WELLS: Did you prepare a

5 supervised preparation of this written testimony?

6 MR. MULFORD: I did.

7 MS. WELLS: Do you have any changes or

8 corrections to that testimony?

9 MR. MULFORD: No, I don’t.

10 MS. WELLS: Do you affirm that this

11 written testimony is true and correct to the best of

12 your knowledge?

13 MR. MULFORD: I affirm.

14 MS. WELLS: Do you affirm that this

15 written testimony that you would give orally in this

16 hearing today?

17 MR. MULFORD: I do.

18 MS. WELLS: Thank you. Your Honor, I

19 would present the witness for cross-examination.

20 A.L.J. COSTELLO: Okay. We’re --

21 we’re going to admit the testimony in the record of

22 Jason Mulford as if given orally here today. And the

23 Court Reporter, at this point, should insert the

24 direct testimony of Jason Mulford.

25 285

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

In the Matter of

Application of Greene County Solar, LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility Located in the Town of Coxsackie, Greene County. Case No. 17-F-0619 December 18, 2020

Prepared Testimony of:

Jason Mulford, CPESC Senior Environmental Analyst New York State Department of Agriculture & Markets 10 B Airline Drive Albany, NY 12235 P: (518) 457-5606

286

1 Witness Introduction

2 Q: Please state your name, employer and business address.

3 A: Jason Mulford, New York State Department of Agriculture and Markets (herein

4 referred to as the “Department”), 10B Airline Drive, Albany New York 12235.

5 Q: In what capacity are you employed by the Department?

6 A: I am a Senior Environmental Analyst in the Division of Land and Water

7 Resources – Agricultural Protection Unit.

8 Q: Please summarize your educational background and professional experience.

9 A: I received A.S. degree in natural resources from the SUNY Collage of Agriculture

10 and Technology at Morrisville, New York. I received a B.T. degree in agronomics from

11 the SUNY College of Agriculture and Technology at Cobleskill, New York. Directly

12 after college I was employed for a year by a licensed Surveyor. I was then employed for

13 approximately seven years as the District Field Manager for the Otsego County Soil and

14 Water Conservation District, in which capacity I worked on a variety of projects

15 including the conservation of environmental resources related to agricultural land. I

16 worked for several private consulting firms where I specialized in environmental

17 permitting. My most recent employment with a consulting firm involved a workload

18 supporting alternative energy and energy transmission projects being constructed

19 pursuant to New York State Public Service Law (NYSPSL) Article VII and Article 10. I

20 have been working for the Department for more than one and one-half years.

21 Q: Please describe your duties with the Department.

22 A: I am responsible for reviewing and determining impacts to agricultural operations

23 and resources associated with energy generation and transmission projects on agricultural

287

1 lands. I represent the Department’s position on the conversion of agricultural lands, as

2 well as to monitor compliance for construction mitigation on agricultural lands associated

3 with energy generation and transmission projects. As relevant to this proceeding, I am

4 responsible for evaluating the known and potential impacts of solar electric generation

5 and electric collection project infrastructure on agricultural lands within the proposed

6 Project Area. My primary responsibilities include the review and evaluation of the

7 applications submitted pursuant to Article 10 of the NYS Public Service Law, participate

8 in party settlement negotiations, and providing necessary follow-up concerning my

9 evaluation. When reviewing utility scale solar projects, I focus on identifying possible

10 adverse impacts to continuing farming operations and agricultural resources including

11 those resources that potentially may return to agricultural production. When a proposed

12 project presents adverse impacts to agriculture, as representing a Statutory Party under

13 Article 10 of the NYSPSL, I advise the project applicant, the administrative law judges

14 assigned to the case, and the approving Siting Board of the possible alternatives,

15 construction techniques, and mitigation measures that would reduce or eliminate such

16 adverse agricultural impacts. As applicable, I also provide guidance during the

17 development of the final construction plans, as well as, performing agricultural

18 compliance inspections during construction and restoration stages of Article VII and

19 Article 10 of NYSPSL projects.

20 Q: Do you have any professional certifications?

21 A: I am certified by Envirocert International as a Certified Professional in Erosion

22 and Sediment Control (CPESC). I have held this certification since August of 2009.

23 This certification has been utilized to meet the qualification for the NYS State Pollutant

288

1 Discharge Elimination System (SPDES) General Permit for Stormwater Discharges

2 from Construction Activities Stormwater Pollution Prevention Plans (SWPPP) preparer

3 as well as a Qualified Inspector . As this experience pertains to this case, I have been

4 involved with the development of SWPPPs and served as a Qualified Inspector for many

5 construction projects including Solar Energy Projects, thus making me very familiar

6 with the typical construction of a solar array.

7 Q: What is your experience working on PSL Article VII and Article 10 cases?

8 A: Prior to this case I testified in my current capacity concerning a PSL Article 10

9 wind projects (Case Numbers 16-F-0267, 18-F-0262) and solar projects (Case Numbers

10 17-F-0182, 17-F-0597, 17-F-0599,17-F-0617,). I also am actively involved in several

11 Article VII cases (Case Numbers 10-T-0080, 11-T-0068, 11-T-0116, 13-T-0585, 15-T-

12 0305, 17-T-0816, 18-T-0207, 19-T-0549, 19-T-0684). Prior to NYS employment, I

13 served as an Environmental Monitor, Agriculture Inspector and Qualified Inspector for

14 several high voltage overhead electric transmission lines regulated under NYS Public

15 Service Law Article VII involving cases numbered 10-T-0080, 11-T-0068. I have also

16 served as a consulting advisor (not limited to agricultural considerations) for the

17 EM&CP development of electric and pipeline transmission lines regulated under Article

18 VII of the NYS Public Service Law, and the development of a wind generating project

19 regulated under Article 10 of the NYS Public Service Law.

20 Exhibits Sponsored

21 Q: Are you sponsoring any exhibits?

22 A: Yes.

23 Q: Which exhibits are you sponsoring?

289

1 A: I am sponsoring one exhibit, labeled for preliminary identification as exhibits AGM-1.

2 Q: Please describe the first exhibit labeled AGM-1 for identification.

3 A. The first exhibit is an Interrogatory/Document Request (IR) made by the Department to

4 the Applicant on December 2, 2020. The applicant initially submitted responses to the

5 request on December 14, 2020. Exhibit AGM-1 is the updated IR dated December 14,

6 2020 containing Applicants responses as well as two attachments.

8 Direct Testimony

10 Q: What are your responsibilities in this proceeding, as they pertain to this testimony?

11 A: My responsibilities in this proceeding include reviewing the Article 10

12 Application, filed on December, 2019, submitted by the Applicant, Hecate Energy

13 Greene 1, LLC, Hecate Energy Greene 2, LLC, and Hecate Energy Greene 3, LLC as

14 well as the submitted Supplement to the Application dated March 2020; the Second

15 Supplement to the application dated May 2020, the Third Supplement to the application

16 dated July 2020, and the unredacted version of the Proposed Certificate Conditions and

17 the Site Engineering Environmental Plan (SEEP), which are still being discussed in

18 settlement.

19 Q. Have you reviewed the Project Area where the Applicant proposes to construct the

20 proposed facility within agricultural fields?

21 A. Yes. I have conducted a desktop analysis of the project layout. I also visited the

22 Project areas on June 27, 2019 and October 8, 2020 in conjunction with the review of

23 the adjacent proposed case 18-F-0087. Although the exact locations are difficult to

290

1 identify without project staking, I am confident in my ability to assess the proposed

2 impacts.

3 Q: What was the purpose of your review and evaluation in this proceeding?

4 A: The purpose of my review and evaluation was to determine the nature and scope

5 of known and potential impacts of the proposed project on agricultural lands active three

6 of the last five years. Development companies routinely seek out the benefits of large,

7 clear and flat farmland, which minimizes costly project expenses associated with

8 expensive land clearing efforts and more regulated areas (e.g. wetlands, wetland

9 adjacent areas, wildlife habitat). The Department has a comprehensive appreciation for

10 the value of the state’s finite agricultural soil resources as it pertains to production and

11 local availability of food and agricultural products, as well as the security of the NYS

12 agricultural economy . The Department strives to minimize the permanent conversion

13 of productive agricultural lands. Where the conversion of agriculture lands is

14 unavoidable (regardless of Department siting policies), the Department will work with

15 the Applicant (and applicable parties) to ensure that the known and proposed temporary

16 impacts to agricultural resources will be preserved and mitigated by the Department’s

17 Guidelines for Solar Energy Projects - Construction Mitigation for Agricultural Lands

18 (Revision 10/18/2019) to the maximum extent practicable.

19 Q: What is the Department’s position on utility scale solar energy generation facilities

20 proposed for development in active agricultural lands?

21 A: The Department does not have an opinion on the need for energy generation or

22 the transmission of energy. However, the Department discourages the conversion of

23 farmland to a non-agricultural use. This effort is in accordance with Section 4 of Article

291

1 14 of the 2018 New York State Constitution, which provides for the conservation of

2 agricultural lands, as well as NYS Agriculture and Markets Law (AML), Article 25-AA,

3 §300, more specifically stating:

4 “It is, therefore, the declared policy of the state to conserve, protect and

5 encourage the development and improvement of its agricultural land for

6 production of food and other agricultural products. It is also the declared policy

7 of the state to conserve and protect agricultural lands as valued natural and

8 ecological resources which provide needed open spaces for clean air sheds, as

9 well as for aesthetic purposes.”.

10 The Department, specifically the Agricultural Protection Unit in which I am

11 assigned, identifies this statute to be a mission statement. Likewise, the Department also

12 recognizes New York State’s 2019 Climate Leadership and Community Protection Act

13 (CLCPA), more specifically the initiative for the development of utility scale solar

14 facilities and is prepared to support the general initiative. The Department’s efforts to

15 support the alternative energy goals include the recently negotiated revised Guidelines

16 with the New York State Energy Research and Development Authority (NYSERDA),

17 entitled Solar Energy Projects - Construction Mitigation for Agricultural Lands (Revision

18 10/18/2019).

19 The Department understands that although the legislative intent of AML supports

20 the preservation of NYS agricultural resources for agricultural purposes, there is currently

21 no law or regulation acting on such intent. Therefore, Department policies are in place to

22 act on the legislative intent. In past PSL Article 10 cases the Department’s position with

23 respect to policies pertaining to the unacceptable conversion of agriculture lands has been

292

1 noted, however, Administrative Law Judges in their decisions have not recognized the

2 policy as a requirement for the proceeding. Despite this fact and considering that the

3 Department is a statutory party according to the applicable PSL, the Department will

4 continue to protest the conversion of agriculture land to a non-agricultural use.

5 Prior to utility-scale solar development, the Department has not been involved in

6 projects that convert large acreages of land from an agricultural use to a non-agricultural

7 use. The renewable wind electric generation projects convert less land to industrial use

8 and largely allows farming to continue post construction as was prior to construction. In

9 comparison, the solar industry arguably eliminates the ability to perform normal viable

10 agricultural operations within and potentially immediately surrounding the facility. The

11 Department identifies solar facilities proposed for construction on conventional

12 agricultural land as a permeant conversion of agricultural lands when there is a potential

13 for upgrading the facility and extending the facilities useful life. Decommissioning plans,

14 such as included in this proceeding, are too open ended. Due to increasing NYS energy

15 goals encouraging renewable energy development, the Department foresees no reason

16 that facilities constructed should not be upgraded and re-leased to maintain the growing

17 or static renewable energy demand, in this case, 35 years from energization. The

18 Department further asserts that as long as NYS incentives for the development of

19 renewable energy exists, the complete decommissioning for solar electric energy

20 generation will not likely occur.

21 With respect to the PSL Article 10 solar electric generating cases, participating

22 landowners and farm operators are supporting the conversion of large acreages of

23 agricultural land-use for the proposed solar facility, often resulting in Department policy

293

1 opposing participants, including farm operators. This places the Department in a rather

2 unfamiliar position; where the Department’s usual position defends continuing Farm

3 Operations, including the associated agricultural resource, which is in opposition to this

4 case’s participating Farm Operator’s position. The Department recognizes the financial

5 benefits of participating landowners; however, farm operator(s) lease payments are not

6 viewed by the Department as a benefit to agriculture when agricultural crops, livestock

7 and livestock products are greatly diminished or eliminated as a result of the project. The

8 Application does not specify impacts to the individual farm operation. The Applicant

9 objected to further Department inquiry concerning the Farm Operator’s business plan.

10 Q: What Department policies are subject to this proceeding?

11 A: As previously mentioned, The Department discourages the conversion of

12 farmland to a non-agricultural use. In an effort to support the New York State’s CLCPA

13 initiatives, the Department has developed siting policy supportive of solar energy

14 development efforts on agricultural lands, provided that the proposed projects are sited

15 on lands other than the State’s most productive farmland. The Department’s goal is for

16 projects to limit the conversion of agricultural areas within the Project Areas, to no more

17 than 10% of soils classified by the Department’s NYS Agricultural Land Classification

18 mineral soil groups 1-4, which represent the State’s most productive farmland. Soils

19 classified with the soil groups 5-10 are identified as having soil limitations. Agricultural

20 activities on soils with limitations are typically less productive for crops, require

21 increased Farm Operator investments, and have considerably more impact on receiving

22 water resources, if adjacent. The generally described low impact development of solar

23 arrays can be constructed on these areas having soil limitations, without limiting the

294

1 generation of solar energy which does not require specific natural resources for the

2 production of energy. The only responsible position the Department can take to stay

3 consistent with the AML Article 25-AA §300, and to support the NYS CLCPA

4 renewable energy initiative, is to ensure the preservation of agricultural areas that involve

5 soils resources classified as soil groups 1-4, soils best suited for the production of food

6 and fiber, and accept conscious siting on lesser productive soils, i.e. agriculture lands

7 comprised on classified mineral soil groups 5-10.

8 The Department also requires the planning an implementation of applicable

9 Department guidelines for constructing such facilities in agricultural lands, proposed to

10 be returned to agricultural production post construction and/or upon decommissioning of

11 the facility. The draft Certificate Condition 90 identifies the Applicant’s agreement to

12 Department’s Guidelines entitled Solar Energy Projects - Construction Mitigation for

13 Agricultural Lands (Revision 10/18/2019), specifying construction mitigation techniques

14 to conserve agricultural soil resources to the unavoidable impacts to agriculture lands.

15 Furthermore, the Applicant is expected to agree to consult with the Department for any

16 conflicting construction techniques not practicable, where the parties will negotiate

17 applicable alternatives.

18 Q. What are the primary agricultural impacts associated with the construction of a

19 commercial solar energy generation facility on agricultural lands?

20 A. The construction of a commercial solar energy generation facility within

21 agricultural land constitutes a permanent conversion (AML §301.8) of farmland to an

22 industrial (non-agricultural) use. The development of solar arrays and ancillary facilities

23 (including panels, panel racking, transformer/inverter equipment pads, access roads,

295

1 security fencing, substations, energy storage options, operation and maintenance

2 facilities, planted visual screening areas, etc.) makes viable agricultural land (AML

3 §301.7) infeasible to continue within the Facility areas. Furthermore, the location of

4 project-related infrastructure in agricultural fields create obstacles that the farm operator

5 will have to avoid during numerous types of agricultural equipment operations; including,

6 but not limited to, cultivation, seeding, nutrient recycling or top-dressing, weed

7 management, harvest, etc.

8 Impacts to agricultural lands remaining outside of the security fencing also have

9 the highly likelihood to become abandoned and/or orphaned. More specifically, these

10 generally narrow areas outside the fenced facility are created by development limitations,

11 which will not allow the complete utilization of impacted agricultural properties. These

12 narrow areas are created by design to address municipal setbacks, shading buffers,

13 regulated stream buffers and regulated wetland adjacent areas, etc. The above scenarios

14 create narrow strips of land that, although may be available to agricultural producers, are

15 unattractive for most large-scale farm operators, as they are inefficient to harvest crops

16 due to the limitations of acreage and maneuverability for modern large-scale mechanized

17 farming equipment. These narrow strips often result in loss of additional farmland

18 viability, ultimately resulting in a decrease of mechanized farming efficiency leading to a

19 reduction in production of crops, livestock and livestock products.

20 Q. How does your review of this case’s application compare with the Departments

21 siting policy?

296

1 A. The Department finds the Application’s proposed siting is not in-line with the

2 Department’s siting policy, although most of the proposed facility is sited on acceptable

3 agricultural land to be converted, i.e. Mineral Soil Groups 5 or more. The Department

4 estimates that greater than 100 acres (or 14% of the collective proposed agricultural

5 conversion) of the Project Area includes the conversion of Mineral Soil Groups 1-4. The

6 Applicant and the Department disagree on the definition of agricultural conversion. The

7 Applicant indicated in the reply of Interrogatory Request AGM-1, “permanent impacts to

8 prime farmland soils associated with the Facility are limited to approximately 3.09 acres

9 from new gravel roads and approximately 0.044 acres from panel posts.” Department

10 understands that the fenced facility in totality along visual screening, access roads,

11 transmission structures, etc., and the resulting unusable abandonment areas define the

12 conversion of the agricultural land use. The constructed facility is expected to occupy

13 thereby converting minimally 50 acres of Mineral Soil Groups 1-4 (similarly classified by

14 the Natural Resource Conservation Service (NRCS) as Prime Farmland) immediately

15 west of Adams Road, most of which will be within the fenced facility. Additional Prime

16 farmland will be converted for conservation areas at the northern portion of the Project

17 and grassland bird habitat located along the outskirts of the fenced facility. Collectively,

18 the Project coverts over 100 acres of Prime farmland. Both the facility and the

19 conservation areas will prohibit the continuation of agriculture activities on current

20 farmland. The Department objects to the proposed development specifically converting

21 the most productive agricultural resources within Greene 2 Array and Green 3 Array (as

22 illustrated on Drawing GCSFA10-GA-001, GCSFA10-C-103 and GCSFA10-C-106);

297

1 more specifically those areas consisting of soils identified by the NRCS soil survey Map

2 Unit Symbols EnA, EnB, and HvB (respectively mineral soil group 2, 3 and 4).

3 Considering the Applicant proposes that the participating Farm Operator will

4 continue agricultural activity on the lands owned and rented, including those lands

5 immediately south of priority agricultural soils identified, the Department asserts that the

6 identified priority soils should be preserved for continued agricultural use.

7 Understanding that the Applicant is required to develop a facility to generated 50 MW,

8 the Department would be agreeable if the Applicant would reduce facilities in the Priority

9 agricultural soil resources identified, and relocated facilities to one of the many other

10 agricultural resources within the Project Area with the Mineral Soil Group classification

11 of 5 or more. The Department is agreeable to the remainder of the proposed facility.

12 Furthermore, the Department encourages the complete use of those agricultural

13 lands the Department deems acceptable. Minimizing wasted areas between arrays,

14 setback areas and utilizing previously disturbed delineated wetlands and wetland adjacent

15 areas are encouraged. My experience in solar facility construction has had some positive

16 experiences in the low impact development in poorly drained areas such as some of the

17 areas within this Project Area provided the construction was implemented with tracked

18 equipment. Currently, the Farm Operator is able to harvest crops from these areas,

19 therefore the Department would like to ensure that the land remains as productive as

20 possible.

21 Q: Where specifically would the Department recommend the Applicant to relocate the

22 arrays currently located in the Mineral Soil Groups 1-4?

298

1 A: The Department does not recommend the conversion of any agricultural

2 resources; however, as previously discussed, the Department’s siting policy indicates

3 acceptable losses of agricultural land within Mineral Soil Groups 5-10. An analysis of

4 the remaining areas the Department believes to be in the Applicants control, including

5 150 acres of continuous agricultural lands north of Plank Road; Greene County parcels

6 55.00-5-51(31.09 Acres), 56.17-1-5 (44.6 acres), 55.16-1-9 (45.1 acres), 56.17-1-1 (3.9

7 acres), and 56.13-2-1 (25 acres). The Applicant’s included this property in previous

8 layouts but informed the Department that these areas were removed due to “Village

9 leadership had identified this area as a logical location for future residential

10 development.” (Applicant’s response to Interrogatory Request AGM-1). The Department

11 understands the Village’s interests; however, the preservation of viable agricultural land

12 is the Department’s priority. Considering the visual impact to the village residents, The

13 Department suggests the relocation of conservation areas to these identified parcels. This

14 would enable the solar arrays currently proposed within the priority agricultural soils to

15 be relocated within the current Project Area. More specifically, some of the conservation

16 areas proposed for the northern end of the Project Area (Greene County Tax Parcels

17 71.00-4-3.1 (56.9 acres), 71.00-2-1.11 (86.4 acres), 71.00-5-13 (85.5 acres)) could be

18 relocated to the secured properties north of Plank Road. If relocated, the proposed trails

19 included for the conservation area would be closer to the village, perhaps within walking

20 distance of the village, therefore bosting visitation grassland bird /winter raptor

21 education. Furthermore, the Department would request that the arrays proposed in the

22 fields consisting of mineral Soil Groups 1-4, west of (Adams Road) be relocated to the

23 northern end of the current Project Area (Greene County Tax Parcels 71.00-4-3.1 (56.9

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1 acres), 71.00-2-1.11 (86.4 acres), 71.00-5-13 (85.5 acres)) where the soil conditions are

2 much poorer. Finally, the Grassland Management Areas (particularly GMA-4 and GMA-

3 6) proposed on the outskirts of the arrays within the identified viable priority soils areas

4 should be relocated within the available lands classified as Mineral soil Group 5 or more.

5 The two particular Grassland Management areas, as proposed, are not suitable for

6 Grassland Bird habitat as the combined areas are less than identified in the Net

7 Conservation Benefit Plan requirement for a continuous 25-acre area.

8 Q: Does the Department have concerns regarding the Project impacts on continuing

9 Farm operations?

10 A: The Department has requested additional information from the Applicant

11 pertaining to the specifics of the Exhibit 4’s suggestion that the participating Farm

12 Operator will continue agricultural activity on the remaining lands own or rented. The

13 Applicant has objected to evaluating the impacts to the associated agricultural business;

14 therefore, it is difficult for the Department to support projects that convert vast

15 agricultural acreages, likely resulting in significant impacts to the existing agricultural

16 business. The Application’s discussion appears to briefly discard any concern for the loss

17 of agricultural on the shoulders of the Farm Operator’s other owned and rented acres, and

18 the largely generalized a NYSPSC 2016 statement regarding the forecasted percentage of

19 conversion of agricultural lands statewide to utility-scale solar.

20 Considering the Project’s proposed conversion of a Department estimated 700

21 acres (830 taxable acres) of active agricultural lands, and the Farm Operators known

22 association with Case 17-F-0617 (Coeyman’s Solar Farm) involving the conversion of a

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1 Department estimated 275 agricultural acres (360.84 taxable acres) of mostly prime

2 farmland, the Department finds it difficult to believe that saving the farm and the

3 privilege to continue farming is the operator’s top priority. The Application’s Exhibit 4

4 more specifically addresses acres owned and rented within the associated towns and

5 elsewhere. Considering the proposed Project and the acreages as reported in Exhibit 4

6 depicting farmland under the Farm Operator’s control, the Farm Operator would reduce

7 the collective land base to only 39% of his current land rights. Furthermore, considering

8 that the parcels identified in Exhibit 4 appear to be taxable acreage and does not represent

9 the lesser tillable/farmable acreage, the remaining 39% farm base is likely to be much

10 less (i.e. the taxable acreage does not account for unfarmable wetlands, steep topography,

11 forested areas, etc.). To consider other utility scale solar development that the Farm

12 Operator is participating with, assumingly not referenced in this preceding, pre-solar

13 development total farm’s land-base would increase to an estimated 1,715 acres. The

14 overall 69% of the land base conversion to utility-scale solar would allow for 31%

15 taxable acres to remain in agricultural activity.

16 As previously stated, the Department only has reservations concerning the

17 development of NYS priority agricultural resources (soils classified by the NYS

18 Agriculture Land Classification as mineral Soil Groups 1-4). The location of these

19 priority NYS resources within the Project Area, are located directly abutting the northern

20 property line of Cedar Shade Farm, LLC.’s (https://opengovus.com/new-york-state-

21 corporation/4936390) Greene County parcel 88.00-2-38, who’s ownership is associated

22 with the Project Area’s participating landowner and Farm Operator. The Department

23 would expect a Farm Operator that had the desire to continue agricultural interests, would

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1 support the ability to continued agricultural production on the best agricultural resources,

2 especially those abutting lands proposed to continue agricultural activities.

3 The collective assessment of the Project’s known impacts on the existing

4 agricultural business, is most notably the conversion of over 2/3 of the associated farms

5 land-base acreage. If “Solar Saves Farms” (http://greenecountysolar-info.web-powerny-

6 com.vps.ezhostingserver.com/contact-us/yard-sign/), this project does not demonstrate

7 saving the whole farm or the farm’s average production. The Department cannot

8 recognize the benefits of solar saving a farm under the constraints of such a sizeable loss

9 of the farm’s agricultural production. The Department will not recognize the solar

10 facilities potential to temporary preservation of farmland, when the reality is that the

11 Project presents a likely permanent conversion of agricultural resources to an industrial

12 land-use with no definite return to agriculture. The Department’s purpose in this

13 proceeding is to attempt to preserve agriculture and agricultural resources for continued

14 use. This Farm Operator clearly is changing professional directions, and the Project as

15 described is greatly diminishing the land currently available for agricultural use

16 Q: How does the Department respond to the Application’s quote “The NYSPSC noted

17 that even if 100% of those Projects were sited agricultural land in New York State,

18 only about 0.16% of such lands would be converted to Utility-scale solar (id., Appendix

19 G at 20).”(Exhibit 4 (q))?

20 A: The Department found this quote associated with CASE 15-E-0302 - Proceeding

21 on Motion of the Commission to Implement a Large-Scale Renewable Program and a

22 Clean Energy Standard, within Appendix A: Eligibility of Resources. The Department

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1 assess that the original statement was made by NYSERDA, whom estimated the

2 following: “Assuming installation of between 2,736 and 6,865 MW of USSE (utility scale

3 solar energy) and a land use requirement ratio of two acres per MW capacity from

4 NYSERDA’s 2014 potential study, between 5,472 and 13,730 acres would be dedicated to

5 USSE… As of 2016, New York had 224 state-certified agricultural districts containing

6 8.79 million acres and including approximately 24,130 farms, equating to approximately

7 26 percent of the State’s total land area. If 100 percent of USSE projects were to be

8 installed on New York agricultural lands, approximately 0.06 percent to 0.16 percent of

9 agriculture lands would be converted to USSE.”. This assumption is flawed for use in

10 the current proceeding. Utilizing this project as an example, the land-use requirement

11 ratio stated is too low. Including the proposed agricultural conversation including the

12 facility area, conservation easements, and Grassland Management Areas minimally

13 totaling to 700 acres (Department calculated), these two areas equate to 14 acres/MW.

14 This would be more than seven times the NYSERDA original forecasted ratio.

15 Secondly, the Agricultural District acreage stated is over generalized. The fact is

16 that parcels enrolled in Agricultural districts also include land that is not farmed or

17 farmable. According to the 2019 Agricultural District Profile

18 (https://agriculture.ny.gov/system/files/documents/2020/01/agdistrictprofile.pdf), the

19 Statewide collective Agricultural Districts have just over 9 million acres enrolled, but

20 only 6.6 million acres actually farmed. Agricultural District enrolled tax parcels include

21 forests, wetlands, topography, and land other soil limitations, which must be excluded

22 from the initial assumption. Additionally, many acres of Agricultural District land have

23 been already converted or abandon, yet not removed from the program through the

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1 prescribe review process by individual counties. Agricultural District statistics also

2 identify that only 3 million of NYS agricultural districts acres are cropped currently,

3 suggesting that only a third of the Agricultural District land is desired for rotational

4 cropping, as well as potentially identifying the large, clear, flat, areas consisting of

5 priority agricultural soils. These acres are those which solar developers seek out along

6 transmission corridors. If this land was to be dispersed equally amongst all farmers

7 participating in the Agricultural District Program, each of the participating farms would

8 have only 113.6 acres of cropland, equating to a small farm in today’s standards. This

9 Project is converting and estimated 700 acres of mostly cropland. Finally, Agricultural

10 District statistics identify that participating farms own less than half the acreage within

11 Agricultural Districts, subjecting NYS’s Farm Operators to landowners generally seeking

12 the best financial decision, at times forcing a conversion of viable agriculture land with

13 no input from the Farm Operator. As this case proves, enrollment in the Agricultural

14 District program is not an indication that development will not convert agricultural land.

15 If the Department were to revise this statement is may read closer to: Knowing the

16 Climate Leadership and Community Protection Act (CLCPA) goal to encourage 6,000

17 MW of solar by 2025, and a land use requirement ratio of 10 acres per MW (opposing the

18 previous accounted 2 Acre/MW), an assumed 60,000 acres (opposing the previous

19 accounted 13,730) would be dedicated to utility scale solar energy in the next five years

20 alone. New York’s 3 million acres of tillable cropland (excluding permanent grassland,

21 pastures, etc.) which are commonly targeted for solar development, equates to

22 approximately 8.5 percent (opposing the previous accounted 26%) of the State’s total

23 land area. If 100 percent of utility scale solar energy projects were to be installed on New

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1 York Agricultural District cropland, approximately 2 percent (opposing the previous

2 accounted 0.16 percent) of agriculture lands would be converted to utility scale solar

3 energy by 2025; again, within the next five years. Considering the 2030 goal is only the

4 75% Renewable Energy Goal, with the intention for a 100% zero-emission electricity

5 goal by 2040 the Department would also expect additional conversions attributed to

6 Utility Scale Solar for the next 20 years. The Department’s GIS team analyzed the State’s

7 nearly 35 million acres, identifying 13.3 percent of NRCS defined Prime Farmland soils.

8 Only 5.3 percent of Prime Farmland soils are being utilized for agricultural activities

9 (2.4% is Prime Farmland that is Hay/Pasture, and 2.9% is Prime Farmland that is

10 Cultivated Cropland). If the State’s 60,000-acre solar initiative are sited solely on

11 cropland’s Prime Farmland, the conversion for the construction of solar facilities may

12 account for 6 percent of the State’ Prime Farmland. It is important to note that this does

13 not account for other development pressures that are not subject to Department review.

14 The Department recognizes accumulative effects on agriculture from all

15 development pressures including utility-scale solar. With that being said, the Department

16 often finds that high quality farmland will stay in agricultural production due to large

17 scale farms willingness to travel for Prime Farmland (mineral Soil Groups 1-4). Because

18 of the Department’s recent ability to review proposed solar development through the

19 AML Article 25-AA §305-A Notice of Intent (NOI) process, as well as being a statutory

20 party to cases like these, the Department has seen alarming increasing consumptions of

21 agricultural lands in the name of commercial scale solar energy generation. Since 2019,

22 the NOI projects (not subject to Article 10 proceedings), involved 8,175 acres of

23 agricultural land impacted for the development of solar energy generation facilities

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1 collectively generating 1,005 MW; averaging 8 acres/MW. This number is not including

2 indirect impacts that cause agricultural abandonment, possible ECL mitigations sited on

3 agricultural lands, as well as whole projects proposed on agricultural lands not enrolled in

4 the Agricultural District program. The NYS Department of Public Service’s Article 10

5 Queue (as of 12/10/2020) documents 8,140 MW of Solar Energy generation is proposed

6 to be presented before the Siting Board. The queue exceeds the 2025 CLCPA solar

7 initiative. Considering that the majority of the Article 10 solar energy generation projects

8 presented to the Department to date has been sited primarily on active farmland, it could

9 be expected that up to 80,000 acres of agricultural land could be subject to conversion for

10 Article 10 proceedings alone. The Department has supported Article 10 projects in line

11 with the Department’s siting policy, however the Department will continue to work to

12 deter the conversion of NYS most productive farmlands.

13 Q: Does the Department have issue with the proposed conservation areas or the Net

14 Conservation Benefit Plan?

15 A: The Department generally opposes the intentional abandonment of active

16 agricultural land thereby converting viable agricultural land for grassland birds and/or

17 wintering raptor habitat. The 2017 New York Agricultural Census indicates a general

18 decline of 317,405 acres of land in Farms, as well as an increase of 106,041 acres of

19 cropland on which all crops failed or were abandoned since the preceding 2012 census.

20 Projects like these, are taking active agriculture out of production and not investing in

21 those lands that have already become abandoned. Considering the observation and

22 record of the presence of the species in agricultural lands points to the value agricultural

23 lands provides for wildlife. The area sought for this Project has been utilized for

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1 agricultural purposes since before 1952 (as recorded by aerials found on

2 https://www.historicaerials.com/viewer.) Understanding that agricultural activities could

3 continue without concerns for ECL part 182, the proposed Project facilities impose

4 environmental conservation mitigation easements on the land further converting

5 agricultural lands that have supported the development of today’s communities that these

6 facilities serve.

7 Conservation easements limiting mowing activities between April 23 through

8 August 15th do not allow agriculture operations to coexist with proposed conservation

9 easements. Grass harvested this late in the growing season is to mature and does not

10 offer a valuable forage for a hay crop, leaving an unmarketable product (i.e. mature grass

11 is low in nutrient content, high percentage of seed revealing a potential spread of invasive

12 species). Farm operations have been preserving the grassland habitat for generations, if

13 not originally creating the habitat of concern. Although is it is undeniable that mowing

14 has caused mortality to wildlife including grassland nesting species, those species would

15 have no habitat if it was not for farmers. The NCB plan discusses that “Additionally, the

16 Avian CIA details that a closer evaluation of the loss in mapped grassland cover types

17 throughout New York State is primarily due to consolidation of the farming industry to

18 large farms in other parts of the US. These abandoned lands are generally left fallow,

19 and without any land management activities, woody species begin to grow and rapidly

20 progress through natural successional stages ” (pg. 17), This statement along with the

21 prescribed mowing to manage the successional brush and tree species, speaks to the

22 value of the past agricultural stewards of the land. Furthermore, the grassland birds and

23 winter raptor habitat both seem to require “agricultural fields greater than 25 acres in

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1 size ” (pg. 13), often representing NYS most valuable agricultural resources. Generally,

2 large fields have been created due to the preferable soils with less limitations due to

3 slope, poor infiltration and runoff; likewise, smaller fields present less of these favorable

4 characteristics and are often the first to become abandoned. Although instigated by the

5 proposed development, these wildlife conservation efforts (expressed in the Net

6 Conservation Benefit Plan) are another form and/or extension of inappropriate

7 consumption of NYS available agricultural resources.

8 The Department’s general request to Applicants is to created habitat in abandoned

9 land. Utilizing active agricultural lands merely preserves and reinforces the habitat in

10 existence with little added benefit for the Rare, Threatened or Endangered (RTE) species.

11 Whereas restored lands currently subject to natural succession would add a greater

12 benefit to the RTE, and they gain acreage along with the continuing supporting

13 agricultural acreage. This Project proposes conversion of rotational cropland for wildlife

14 conservation purposes (see Net Conservation Benefit Plan Appendix A, figure 1),

15 including grassland management areas proposed in agricultural land consisting of mineral

16 soil groups greater than 1-4. While the majority of the conservation areas are confined to

17 the mineral soil groups 5 or greater are acceptable, the conversion of priority soils is

18 unacceptable to the Department when abandoned lands are available for habitat

19 preservation. . The Department prefers the options which enables landowners to

20 continue themselves or rent to other farm operators for the continued use of farmland

21 agricultural production. As previously discussed, the Department requests the relocation

22 of Grassland Management Areas GMA-4 and GMA-6 to be relocated within other non-

23 agricultural or less productive agricultural lands (mineral soil groups 5 or greater).

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1 For these reasons the Department considers the proposed conservation areas

2 including active or recently active agricultural land, as a permanent conversion of

3 agricultural resources. Although infrastructure is not proposed in the conservation lands,

4 the agricultural land use within the conservation areas will cease all together as the result

5 of the mowing restrictions.

7 Q: Can you address the concern regarding nutrient and sediment loading from

8 agricultural resources?

9 A: Yes. The Department is known for Agricultural resource protection relevant to

10 PSL Article 10 cases, however the Department is also attuned to potential agriculture

11 concerns as they pertain to water quality. The Department division of Land and Water

12 hosts the NYS Soil and Water Conservation Committee (SWCC) whom works

13 with/through individual county Soil and Water Conservation Districts (SWCD) and other

14 advisory members including several state agencies included in these proceedings. This

15 workforce works with participating agricultural producers to implement conservation

16 practices which reduce agricultural runoff. It is important to understand that watershed

17 analysis performed including the Project Area may include evidence that agriculture

18 might have negatively impacted water quality. The Department understand that the

19 participating Farm Operator has not participated in available conservation programming.

20 This was determined by inquiry to the Greene County Soil and Water Conservation

21 District as well as account of publicly available USDA subsidy payments spent on the

22 participants farm (https://farm.ewg.org/persondetail.php?custnumber=A00262781). The

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1 soils within the facility areas include those with NRCS Land Classification rating of 3 or

2 more. The best of these are described by NRCS as “Class 3 soils have severe limitations

3 that reduce the choice of plants or that require special conservation practices, or both.”

4 The NRCS land capability sub-class “shows that water in or on the soil interferes with

5 plant growth or cultivation (in some soils the wetness can be partly corrected by artificial

6 drainage)”. The soils wetness limitations are due to their dense soil structure causing

7 slow infiltration rates, as well as having a seasonal high-water table. The soils poor

8 infiltration causes a high runoff potential as well as a high erodibility rate. For these

9 reasons the soils are not included as a NYS priority agricultural resource for continued

10 agricultural production, and further use of these soils for agricultural purposes would

11 involve several conservation practices including (but not limited to) tributary buffering,

12 prescribed crop rotations, decompaction, subsurface drainage, Nutrient management, etc.

13 Although the Department will continue to support agricultural land-use wherever viable,

14 the Department’s siting policy does not put emphasis on NYS Agricultural Land

15 Classification Mineral Soil Groups 5-10 as priority agricultural resources, in

16 consideration of solar energy siting. Although the Department will not support the

17 conversion of any active agricultural resource, with exception of the previously discussed

18 concerns , the Applicant’s selected Project Area is generally an acceptable conversion.

19 Finally , the Department recognizes and supports conservation practices on all

20 agricultural lands, especially on those lands subject to high runoff and a high erodibility

21 rate. The Department is hopeful, that the Applicant may follow the Department’s siting

22 requests, and Prime Farmland (mineral Soil Groups 1-4) may be retained for continued

23 agricultural use. The Department would encourage the incorporation of conservation

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1 practices to protect the watershed’s water resources, while enabling the continuation of

2 agricultural activity in the watershed.

3 Q: Are there any additional Department concerns regarding the construction of the

4 proposed facility?

5 A: No. The Department believes the propose certificate conditions identify the

6 Applicant’s willingness to construct the proposed facility by adhering to the

7 Department’s Guidelines for Solar Energy Projects - Construction Mitigation for

8 Agricultural Lands. The Department looks forward to working with the Applicant on

9 other aspect of the Site Engineering and Environmental Plan (SEEP), as well as

10 construction compliance issues that may arise concerning the implementation of the

11 Departments Guidelines.

12 Q: Does this conclude your testimony?

13 A: Yes.

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2 A.L.J. COSTELLO: Also, there was an

3 exhibit that was submitted with Mr. Mulford’s

4 testimony. Let’s designate it as AGM-1, which we

5 have marked as Exhibit 87. And if there are no

6 corrections to that -- well, let me ask you. Mr. --

7 Mr. Mulford, are there any corrections to respect to

8 the AGM-1?

9 MR. MULFORD: No, there’s not.

10 A.L.J. COSTELLO: Okay. And if there

11 are no objections to that being admitted into the

12 record, we’ll admit that exhibit into the record. So

13 let me just take a moment to see if anyone has any

14 objections. Okay. Not hearing any, we’re going to

15 admit that into the record, AGM-1, which is Exhibit

16 87. And we will turn it over now to counsels for the

17 municipalities for cross-examination.

18 MS. KEMP: Thank you, Your Honor.

19 This is Catherine Kemp from the municipalities.

20 CROSS EXAMINATION

21 BY MS. KEMP:

22 Q. Mr. Mulford, on page 10, line 20

23 of your testimony, you stated, “Construction of a

24 commercial solar facility with an agricultural land

25 constitutes a permanent conversion of farm land.” 312

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2 Can you explain why a utility scale solar facility

3 for Hecate Green is a permanent conversion of farm

4 land?

5 A. Yes. The solar facility limits

6 the use of the land for agricultural production,

7 excluding conventional means of agricultural

8 production for an undisclosed time. I understand the

9 life of the facility is 30 to 40 years, and there’s

10 no commitment to return it to agriculture aside from

11 an open-ended agreement with the landowner.

12 Additionally, any area surrounding the facility are

13 generally unusable for agricultural production,

14 traditional agricultural production. So that also

15 constitutes a conversion, as well as any conservation

16 areas that restrict normal agricultural activities.

17 Q. Are you familiar with how the

18 applicant has calculated permanent farm land

19 conversion based on the area of roads and posts?

20 A. Yes, I am.

21 Q. And does the applicant’s method

22 for calculating permanent farm land conversion

23 accurately reflect the impact this project has on

24 prime farm land?

25 A. Not in the -- the Department’s 313

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2 position, no.

3 Q. And does the applicant’s method

4 for permanent farm land conversion accurately reflect

5 the impact the project will have on agricultural

6 resources in general?

7 A. I -- I don’t believe so, no. I -

8 - I believe that there’s a disagreement as far as

9 permanent and -- and temporary conversion. And, you

10 know, the Department feels obviously the agricultural

11 will not return after this -- after the

12 decommissioning of the project. And it -- it’s also

13 a question of -- of, you know, what’s -- what’s to be

14 decommissioned? I -- I believe I addressed the

15 question. Could you restate the question?

16 Q. I -- I believe you answered the

17 question, Mr. Mulford.

18 A. Okay.

19 Q. On page 12, line 20 of your

20 testimony, you state that, “The Department objects to

21 the proposed development, specifically converting the

22 most productive agricultural soil -- soils in the

23 facility area.” Is it Department’s -- is it

24 Agriculture & Markets’ position that the applicant

25 did not avoid agricultural resources and prime farm 314

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2 land to the maximum extent practicable?

3 A. It is the Department’s position.

4 The Department believes that there were alternatives

5 that the applicant could have made in their sightings

6 to avoid the highest productive farm lands, which

7 were not addressed for various reasons.

8 Q. And on page 24, line 1 of your

9 testimony, you state that, “The Department considers

10 the proposed conservation areas, including active or

11 recently active agricultural lands as a permanent

12 conversion of agricultural resources.” Do you

13 believe that the application accurately reflects the

14 loss of the agricultural resources to the

15 conservation areas?

16 A. Which -- which reference is that

17 again? Could you repeat that?

18 Q. This is on page 24, line 1 of

19 your testimony regarding the conservation areas. You

20 state that, “The Department considers the proposed

21 conservation areas, including active or recently

22 active agricultural land as a permanent conversion of

23 agricultural resources.”

24 A. Yes.

25 Q. Do you believe that the 315

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2 application accurately reflects the loss of

3 agricultural resources to the conservation areas?

4 A. I’m not sure, to be honest. What

5 I’m stating here in my testimony is that the

6 Department reflects that it is a -- a conversion.

7 Q. Thank you, Mr. Mulford. Your

8 Honors, I have no further questions.

9 A.L.J. COSTELLO: Ms. Wells, do you

10 need a moment to see if you want to do redirect?

11 MS. WELLS: If I could just have a

12 moment, that would be great.

13 A.L.J. COSTELLO: Okay, do you want

14 like -- how many? How long, 3 minutes, 5 minutes?

15 MS. WELLS: I think 3 minutes. We’re

16 actually in the same building space. So I’m just

17 going to quickly run over to where he sits and just

18 make sure he doesn’t need any cross-examination or

19 redirect.

20 A.L.J. COSTELLO: Okay. We have 12:40

21 now, and we’re going to go off the record. Thank

22 you.

23 MS. WELLRAVIN: We’re off the record.

24 (Off the record 12:40 p.m.)

25 (On the record 12:42 p.m.) 316

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2 A.L.J. COSTELLO: Counsel -- Counsel

3 for the municipalities?

4 MS. KEMP: I’m here, Your Honor.

5 Thank you.

6 A.L.J. COSTELLO: Oh, okay. Thank

7 you. Okay. We can go back on the record.

8 MS. WELLRAVIN: Okay, we’re back on

9 the record.

10 A.L.J. COSTELLO: Ms. Wells?

11 MS. WELLS: Your Honor, this is Tara

12 Wells. I do not have any redirect. Thank you very

13 much.

14 A.L.J. COSTELLO: Okay, thank you, and

15 I want to thank Mr. Mulford for your -- your

16 testimony today. And you are excused.

17 MR. MULFORD: Thank you, Judge.

18 A.L.J. COSTELLO: So what we’ll do now

19 is I guess deal with some of the exhibits that we

20 have to mark and put on, and those include the

21 affidavits. Before we get to the affidavits, I just

22 want to verify with Mr. Walcott that -- and other

23 parties, if you have any objections, you can let me

24 know. But we had a signature page filed by -- signed

25 by Mr. Walcott, dated February 5th, 2021. And that 317

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2 was a signature page to the original settlement

3 document that was submitted. And I wanted to mark

4 that as an exhibit for -- it would be Exhibit 106.

5 Unless any -- anyone has an objection to that, we’re

6 going to admit that signature page as Exhibit 106.

7 Okay. Not hearing any, we’re going to admit the

8 signature page as Exhibit 106.

9 I also -- we have not gotten --

10 because this was filed after the exhibit list was

11 prepared, there was a visual settlement agreement

12 that was filed by Hecate Green. We do not yet have a

13 signature page on -- on behalf of the municipalities.

14 We do have a signature page that’s been signed by Mr.

15 Walcott, dated February 5th, 2021. And I wanted to

16 mark that document. So it’s the Visual Settlement

17 Proposal as an exhibit, and that would be Exhibit

18 107.

19 And I just want to ask counsel for the

20 municipalities whether they will be, you know -- and

21 when we can expect them to file a signature page to

22 that?

23 MS. KEMP: Your Honor, the -- the

24 Village of Athens approved both the settlement

25 proposal and the supplement Visual Settlement 318

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2 Proposal on Monday. The Town of Coxsackie approved

3 both last night. And I anticipate filing them on

4 Thursday.

5 A.L.J. COSTELLO: Okay. So, yeah,

6 once you file that, you know, I will add that as part

7 of the exhibit and -- and have that as part of

8 Exhibit 107. And what I’ll probably do is mark it as

9 exhibit 107A just so that we have it for the

10 signature page, your signature page.

11 MS. KEMP: I have no objections to

12 that, Your Honor.

13 A.L.J. COSTELLO: Okay, thank you.

14 Okay, I just had one clarifying question. I think

15 you had indicated that there was a supplemental

16 visual settlement. That’s something I -- I don’t

17 believe we have on the record at this time. And so

18 let me just ask for clarification. Is -- is there

19 another settlement proposal that’s outstanding with

20 respect to visual matters?

21 MR. WALCOTT: No. This is Tyler

22 Walcott, Your Honor. No, the -- the Visual

23 Settlement Proposal is the only visual-related

24 settlement. I -- I think I -- I may have used the

25 term “supplemental” just to refer that it was 319

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2 supplemental to the original.

3 A.L.J. COSTELLO: To the original?

4 MR. WALCOTT: Yeah.

5 A.L.J. COSTELLO: Okay, thank you.

6 All right, so now, we’re going to go through the

7 affidavits. I’ll mark those as exhibits. I’m going

8 to turn first to the -- to the affidavit of James

9 David, and that was filed by Hecate Green. And I

10 just have -- before we do that, I just have a

11 question with respect to in paragraph two of that

12 document. So it’s an affidavit by James David,

13 signed on February 8th, 2 -- 2021. He refers to pre-

14 filed direct panel testimony and exhibits labeled,

15 “Application Exhibits 5 and 8” and “Application

16 appendix 8A.”

17 The direct testimony by Mr. David

18 refers only to Exhibit 8 and the appendixes to

19 Exhibit 8. Is that something that is being -- now

20 he’s adopting it in an additional exhibit? Or is --

21 was that a mistake?

22 MR. WALCOTT: Your Honor, I believe

23 that is a mistake to include Exhibit 5. What was

24 included -- what was discussed in the pre-filed

25 direct testimony should be the correct. So it should 320

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2 just be 8 and Appendix 8A.

3 A.L.J. COSTELLO: Okay.

4 MR. WALCOTT: So I can -- I can

5 follow-up with Mr. David and -- and with a corrected

6 affidavit, if you need it.

7 A.L.J. COSTELLO: Okay, that would be

8 great. And what we’re going to do is, you know, I’ll

9 just give it a number right now. So we will have

10 108, Exhibit 108, for that affidavit.

11 Okay, I’m going to go through the

12 affidavits by the Department of Public Service Staff.

13 So we’ll start with the affidavit by Miguel Moreno-

14 Caballero, and that will be Exhibit 109. And it was

15 sworn to on February 8th, 2021. And the next

16 affidavit is by Richard Quimby, sworn to on February

17 8th, 2021, and that will be Exhibit 110. The

18 affidavit of Caitlyn Edmundson, sworn to on February

19 8th, 2021, will be Exhibit 111. The exhibit of John

20 Quackenbush, sworn to on February 8th, 2021, will be

21 Exhibit 112. The affidavit of Lorna Gillings, sworn

22 to on February 8th, 2021, will be Exhibit 113.

23 And now, we’re going to turn to the

24 affidavits filed by the Department of Environmental

25 Conservation. And I do have a question with respect 321

1 2-10-2021 - Hecate Energy - 17-F-0619

2 to the affidavits filed by Brianna Denocour and

3 Matthew Palumbo. The affidavits refer to exhibits --

4 and this is on paragraph two of both of those

5 affidavits, as well as their various subdivisions in

6 paragraph three. They refer to the exhibits as GP-1,

7 2, 3, and 4. The exhibits as filed on DMM are listed

8 as DP, not GP. So D as in David. DP1, 2, 3, and 4.

9 So that may -- that should be corrected, if you can

10 have -- file a corrected affidavit?

11 MS. BONILLA: Yes, Your Honor. This

12 is Mary Anne Bonilla. I will file that today.

13 A.L.J. COSTELLO: Okay. And -- and

14 I’m just going to identify what exhibit numbers. So

15 it will be 114 for the affidavit of Briann -- Brianna

16 Denocour and 115 for the affidavit of Matthew

17 Palumbo. And then the affidavit of George --

18 Georgette Walters will be 116, 116. That’s affidavit

19 sworn to on February 3rd, 2021. The affidavit of

20 Matthew Walter will be Exhibit 117, and that was the

21 affidavit sworn to on February 4th, 2021.

22 And we’re not going to turn to the

23 affidavit by Stephen B. Le Fevre -- it’s L-E space F-

24 E-V-R-E -- filed by the municipalities. And I have a

25 question with respect to this affidavit, as well as 322

1 2-10-2021 - Hecate Energy - 17-F-0619

2 the affidavit by Thaddeus Kolankowski. On paragraph

3 two of both of those affidavits, the Exhibits SBL-1,

4 2, 3, 4, and 5 are referred to. There were also

5 affidavits -- I’m sorry. There were also Exhibits

6 SBL-6, 7, 8, and 9 that were filed in connection with

7 the pre-filed testimony. And I just wanted to

8 clarify whether those exhibits could also be included

9 in the affidavits or not.

10 MS. KEMP: Your Honor, this is

11 Catherine Kemp. That was an error, and I will

12 correct it so it reflects those missing exhibits as

13 well.

14 A.L.J. COSTELLO: Okay, great. And

15 what we’ll do is just give them numbers so that we

16 have them marked so the affidavit of Stephen Le Fevre

17 would be 118, and the affidavit of Thaddeus

18 Kolankowski will be 119. Okay. I believe that the

19 attorney for Sleepy Hollow is not on the line, not at

20 the hearing. There is a question that I do have that

21 we -- that I will pose to them with respect to

22 paragraph two. Again, it deals with the exhibits

23 that they’re referring to. It refers GG-DT-1, 2, 3,

24 and 4. There was also a GG-DT-5 that is not

25 referenced in the affidavit, and I’m going to clarify 323

1 2-10-2021 - Hecate Energy - 17-F-0619

2 with the attorney for Sleepy Hollow whether it should

3 have been included in it. So that will need to be

4 corrected. What we’re going to do is give a number

5 to that. So we have an Exhibit number 120, which

6 will be assigned to the Exhibit of Geoffrey M. Goll,

7 G-O-L-L.

8 And now, we have exhibits from Hudson

9 Green and Greene Land Trust. And we have -- I’m

10 sorry, we have an affidavit -- and affidavit by Lee

11 H. Harper, sworn to on February 9th, 2021, and that

12 will be Exhibit 121.

13 MS. FRIEDRICHSEN: Judge, this is

14 Audrey at Scenic Hudson. Just for the record and for

15 the Court Reporter, I think you said, “Hudson Green.”

16 It’s actually Scenic Hudson.

17 A.L.J. COSTELLO: Oh, sorry. Scenic

18 Hudson, yep. Is it on behalf of both Scenic Hudson

19 and Green Land Trust?

20 MS. FRIEDRICHSEN: Yes, it is.

21 A.L.J. COSTELLO: Oh, okay. Thank

22 you. Sorry about that.

23 MS. FRIEDRICHSEN: No worries. Thank

24 you.

25 A.L.J. COSTELLO: Okay. So what we’re 324

1 2-10-2021 - Hecate Energy - 17-F-0619

2 going to do is all the exhibits, to the extent they

3 haven’t been admitted in the record, all the exhibits

4 will be admitted into the record at this point. And

5 what we will do is when we get the corrected

6 affidavits and all of the things, we’ll circulate the

7 parties an updated exhibits list with all of the

8 exhibit numbers. There may be certain additions, as

9 I know DPS counsel had indicated that they have some

10 discovery responses that they want to add to the

11 record, and we’ll do that as well. So when we have

12 all the exhibits in the record, we’ll circulate an

13 updated exhibit list.

14 Also, at this time, I just -- so that

15 I -- we have it on the record, I’m going to list or

16 read out the testimony that is coming in through

17 affidavits. And the testimony -- I’m talking about

18 only the testimony that’s coming in solely through

19 affidavits. All of that testimony is going to be

20 admitted into the record today as if -- as if the

21 testimony was given orally today. So at this point,

22 the Court Reporter should insert into the record the

23 corrected direct testimony of Wetlands and Streams

24 Panel, which was filed by the Department of

25 Environmental Conservation, the corrected direct 325

1 2-10-2021 - Hecate Energy - 17-F-0619

2 testimony by the Grassland Bird Panel, which was

3 filed by the Department of Environmental

4 Conservation. With that, with the testimony of

5 Wetlands and Streams, there should be Exhibits WW-1

6 through WW-7, and corrected WW-8. With respect to

7 the corrected direct testimony of the Grassland Bird

8 Panel, there were Exhibits DP1 through corrected DP4.

9 Also, the testimony should be admitted

10 as given orally here today by the municipalities.

11 It’s the direct testimony of Stephen B. Le Fevre and

12 Thaddeus Kolankowski, and there are also attendant

13 Exhibits SBL-1 through SBL-9. Also, to be admitted

14 into the record is the rebuttal testimony of Stephen

15 B. Le Fevre and Thaddeus Kolankowski with Exhibits

16 SBL-10 through SBL-11.

17 We’re going to admittingly record the

18 direct testimony by Geoffrey M. Goll, G-O-L-L, and

19 that’s on behalf of Sleepy Hollow. And then on

20 behalf of Scenic Hudson and Greene Land Trust, we’ll

21 be admitting the direct testimony of Lee H. Harper

22 and their attendant Exhibits LH-DT-1 and LH-DT-2.

25 326

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

In the Matter of the Application of

Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC Case No.: 17-F-0619 for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 for a Proposed Solar Energy Project

DIRECT TESTIMONY OF GEORGETTE WALTERS and MATTHEW WALTER

Biologists for the Bureau of Ecosystem Health Division of Fish and Wildlife New York State Department of Environmental Conservation

December 18, 2020

Case No. 17-F-0619 WALTERS & WALTER 327

1 WITNESS INTRODUCTION

2 Q. Will the first witness please state your name, employer, title, and business location?

3 A. My name is Georgette Walters. I am employed by the New York State Department of

4 Environmental Conservation (NYSDEC or Department), Division of Fish and Wildlife, as a Biologist

5 for the Bureau of Ecosystem Health in the NYSDEC Region 4 Office, Stamford, New York.

6 Q. Will you please describe your educational background and professional certifications?

7 A. Please see a copy of my resume marked as NYSDEC-WW-1.

8 Q. What are your responsibilities in your position at the Department?

9 A. In my position, I am responsible for programmatic oversight of the State’s statutory and

10 regulatory Freshwater Wetland Protection and the Protection of Waters programs in Region 4 which

11 includes Albany, Schenectady, Rensselaer, Montgomery, Columbia, Greene, Schoharie, Delaware, and

12 Otsego counties. In this capacity, I oversee the implementation of Article 15 of the Environmental

13 Conservation Law (ECL) (Article 15) and associated State regulations, Article 24 of the ECL (Article

14 24) and associated State regulations, and, as applicable, State water quality standards applicable

15 to section 401 of the Federal Water Pollution Control Act (CWA) and associated State

16 regulations. Included in this oversight is my responsibility to review Article 15, Article 24, and

17 CWA permit applications, including State water quality certificates, for projects that involve

18 potential impacts to protected waters and wetlands of the State as well as ensuring proper delineation of

19 State-regulated wetland boundaries and identification of State waters.

20 Q. Will you please summarize your experience regarding wetlands and review of proposed

21 solar projects?

22 A. I have delineated a considerable number of wetlands and reviewed the permit applications for

23 activities in and near wetlands that were associated with the above referenced delineations, including for

24 solar projects and other development activities. I have also conducted stream surveys and reviewed many

Case No. 17-F-0619 WALTERS & WALTER 328

1 permit applications for activities proposed in and near streams. I have reviewed numerous solar projects

2 that required Article 15, Article 24, and/or State water quality certificates, or must meet the corresponding

3 statutory and regulatory standards, in order to be constructed. These projects include those subject to

4 Article 10 of the Public Service Law (PSL) (Article 10), such as the Hecate Greene project (the Project),

5 and those which were reviewed pursuant to the State Environmental Quality Review Act (SEQRA).

6 Q. Will the second witness please state your name, employer, title, and business location?

7 A. My name is Matthew Walter. I am employed by the NYSDEC, Division of Fish and Wildlife, as

8 the State Freshwater Wetlands Program Manager. I am a Biologist 2 (Ecology) in the Bureau of

9 Ecosystem Health, NYSDEC Central office, Albany, New York.

10 Q. Will you please describe your educational background and professional certifications?

11 A. Please see a copy of my resume marked as NYSDEC-WW-2.

12 Q. What are your responsibilities in your position at the Department?

13 A. I am responsible for programmatic oversight of the State’s statutory and regulatory Freshwater

14 Wetlands Protection program. I oversee the implementation of Article 24 of the Environmental

15 Conservation Law (ECL) and associated State regulations. In doing so, I collaborate with regional

16 biologists in identifying the location and extent of jurisdictional freshwater wetlands and assessing

17 potential impacts associated with project proposals that include development within and adjacent to

18 wetland resources.

19 Q. Will you please summarize your experience regarding wetlands and review of proposed

20 solar projects?

21 A. I have delineated portions of numerous wetlands, performed many wetland delineation

22 verifications, initiated Article 24 enforcement cases and overseen required wetland restoration. In

23 addition, I have reviewed numerous Article 24 permit applications associated with individual landowner

24 and larger-scale industrial development and environmental remediation projects. I am currently engaged

Case No. 17-F-0619 WALTERS & WALTER 329

1 in the review of a number of solar projects that, just like the Project, will need to meet Article 24 permit

2 issuance standards to obtain Certificates of Environmental Compatibility and Public Need under Article

3 10 (Certificate).

4 Q. What is the purpose of your testimony today?

5 A. The purpose of our testimony is to provide an overview of the Department’s implementation of

6 Article 15, Article 24, and the State water quality program pursuant to Section 401 of the CWA, including

7 the associated regulations found in Title 6 of the Official Compilation of Codes, Rules, and Regulations

8 of the State of New York (6 NYCRR) Parts 608, 663, 664, 701, 702, 703, 704, and 750. In that context,

9 we will discuss: (1) the factors the Department considers in making regulatory determinations pursuant

10 to the applicable statutes and regulations, (2) how these factors apply to the Project, and (3) whether the

11 Project has met the applicable State statutory and regulatory standards. We are advised by Department

12 Counsel that the wetlands program, with its attendant statutory and regulatory authority, as well as State

13 water quality standards, apply to the Project, as proposed, and to the deliberations by the New York State

14 Board on Electric Generation Siting and the Environment (Siting Board) pursuant to Article 10.

15 Accordingly, our testimony discusses how the Siting Board must apply the statutory and regulatory

16 programs outlined above to its deliberations under Article 10 to ensure the Project’s compliance

17 therewith, should it decide to approve the Project.

18 Q. What information was provided for the basis of your testimony?

19 A. Our testimony is based on the Project application, submitted by Hecate Energy Greene 1 LLC,

20 Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC (Hecate or the Applicant) on

21 December 27, 2019, specifically Exhibits 22 and 23 and corresponding Appendices, together with

22 supplemental filings filed on March 20, 2020 and May 8, 2020 (collectively, Application), the Hecate

23 Greene Proposed Certificate Conditions dated December 16, 2020, filed on December 16, 2020

24 (Proposed Certificate Conditions), and the Proposed Site Engineering and Environmental Plan (SEEP)

Case No. 17-F-0619 WALTERS & WALTER 330

1 Guide dated December 2020 and filed on December 16, 2020. We have also reviewed the Applicant’s

2 responses to information requests relating to wetlands, streams, and other natural resources, and

3 Department staff conducted site visits of the Project site on October 2, 2018 and May 19, 2020. All of

4 the above-referenced materials have been reviewed in the context of compliance with relevant statutory

5 and regulatory programs.

6 Q. Is there any information the Applicant has not provided, that you believe is necessary to

7 conduct a thorough review of the Project in order to assess its environmental impacts and

8 determined whether it has met the applicable State statutory and regulatory standards?

9 A. Subject to the discussion below regarding mitigation for unavoidable impacts to State-regulated

10 wetlands and adjacent areas, additional information is required in order for us to assess the Project’s

11 compliance with the applicable State statutory and regulatory standards.

12 ECL ARTICLE 24 AND ITS APPLICATION TO THE PROJECT

13 Q. Can you describe the Department’s policy with respect to freshwater wetlands?

14 A. As articulated in Article 24, the State’s policy regarding wetlands is to preserve, protect, and

15 conserve freshwater wetlands and the benefits that wetlands provide, to prevent the despoliation and

16 destruction of freshwater wetlands, and to regulate use and development of such wetlands to secure the

17 natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic,

18 social, and agricultural development of the State. The Department must take this public policy into

19 consideration with respect to any proposed project that may impact regulated freshwater wetlands, or the

20 associated regulated adjacent areas (being the area within 100 feet of a State-regulated wetland).

21 Accordingly, if the Department determines that a project with potential adverse impacts to freshwater

22 wetlands does not satisfy an economic or social need and does not meet specific permit issuance

23 standards including sufficient efforts to avoid, minimize, and/or mitigate wetland impacts, the

24 Department may find that the project does not meet statutory and regulatory standards.

Case No. 17-F-0619 WALTERS & WALTER 331

1 Q. How is Article 24 implemented?

2 A. The Department’s regulations contain the standards that implement the Freshwater Wetlands Act

3 [see, e.g., 6 NYCRR Parts 663 and 664]. Through Part 663, the Department has established procedures

4 and standards to guide the review of permit applications for projects which propose to construct within,

5 or adjacent to, freshwater wetlands. Part 664 contains the mapping procedures and classification

6 standards for all wetlands protected under Article 24.

7 Q. How is a regulatory review of proposed activities within a State-regulated wetland, or

8 the associated regulated adjacent area, conducted?

9 A. The burden is on an applicant to demonstrate that any proposed activity within a State-regulated

10 wetland and the associated regulated adjacent area will comply with implementing regulations, and all

11 other applicable laws and regulations (e.g., 6 NYCRR § 663.5(a)).

12 Q. In being consistent with the State’s freshwater wetlands program, what information must

13 an applicant provide for the Siting Board to conduct its review?

14 A. We have been advised by Department Counsel that activities regulated by Article 10 do not require

15 an Article 24 freshwater wetlands permit. However, the standards for Article 24 permit issuance found

16 in 6 NYCRR § 663.5(e) must be applied in determining whether to issue a Certificate pursuant to Article

17 10. In order for the Department to conduct a technical review of any project that will occur, in part or

18 in its entirety, within a State-regulated wetland, or the associated regulated adjacent area, an applicant

19 must provide detailed project plans of sufficient scale, including, at minimum: (1) a delineated boundary

20 for all wetlands on or near the project site; (2) the precise location of all temporary and permanent

21 structures; and (3) the extent of all temporary and permanent disturbances, including clearing and grading

22 areas. This information is not exhaustive – on a case-by-case basis, additional project information may

23 be required for the Siting Board, as well as the Department, to complete their respective reviews and

24 make regulatory determinations, including whether the project has met State statutory and regulatory

Case No. 17-F-0619 WALTERS & WALTER 332

1 standards.

2 Under the Department’s review process, once all of the needed information has been submitted,

3 the examination of the project continues with a consultation of the Department’s mapped regulatory

4 wetlands, as well as those unmapped wetlands that meet State criteria for jurisdiction, and geographical

5 information systems (GIS) data to determine if a protected wetland is located within 100 feet of the

6 proposed project components and infrastructure. If a regulated wetland or its adjacent area is likely

7 located within or near the project area, the Department then considers the proposed activities associated

8 with the project in relation to the delineated and mapped boundary of the wetlands, the Procedural

9 Requirements for Various Activities listed in 6 NYCRR § 663.4(d), and the Standards for Permit Issuance

10 set forth in 6 NYCRR § 663.5(e), before making an ultimate determination whether the project meets

11 statutory and regulatory standards.

12 Q. What do you mean by “delineated boundary” of a wetland?

13 A. A “delineated boundary” is a wetland boundary that Department Staff have determined to be an

14 accurate representation of the actual location and extent of wetlands within a prescribed area. This should

15 not be confused with the extent of wetlands as depicted on the Department’s Freshwater Wetlands Maps,

16 or the National Wetlands Inventory Maps, which is a comprehensive master geodatabase of the nation’s

17 wetlands maintained by the United States Fish and Wildlife Service. The Department’s Freshwater

18 Wetlands M aps approximate the extent of the wetlands to inform landowners, potential applicants, and

19 other members of the public of the approximate location and extent of wetlands regulated under Article

20 24. It is important to note that the State Regulatory Freshwater Wetlands maps were developed using

21 1970s-era aerial photography and were not intended to depict actual wetland boundaries with the

22 precision that may only be attained through on-site inspections or delineations. In fact, in performing site

23 inspections or field delineations, Department staff often find that the actual extent of wetlands has been

24 dramatically underestimated by our Freshwater Wetlands maps. For this reason, field inspections are

Case No. 17-F-0619 WALTERS & WALTER 333

1 always required for projects such as this so that we may refine the approximations portrayed on the State

2 maps and accurately determine the extent of wetlands near proposed project elements.

3 Once field delineations of wetlands in the vicinity of the project area are complete, their

4 boundaries must be surveyed to ensure their precise locations are depicted on project plans. Without

5 precise mapping of wetlands, Department Staff cannot determine the full extent of proposed project

6 impacts on identified State-regulated wetlands or their 100-foot regulated adjacent areas.

7 Q. Are there guidelines or procedures for an applicant to follow when conducting wetland

8 delineations?

9 A. Yes. An applicant is required to follow the “New York State Freshwater Wetlands Delineation

10 Manuel July 1995” (Manual) and adhere to those procedures set forth by the Department to evaluate

11 State–regulated Wetlands. Part I of the Manual describes the “Technical Criteria For New York State

12 Wetland Delineation.” Part II describes “Methods for Identification and Delineation of Wetland

13 Boundaries” including methodology for a “Routine Delineation Procedure” and “Delineations in

14 Disturbed Areas.”

15 Q. Did the Applicant here follow the proper procedures set forth in the Manual when

16 completing the wetland delineations for the Project?

17 A. No. In the Supplement to the Application, Attachment 22A, Revised Exhibit 22: Terrestrial

18 Ecology and Wetlands, under (j)(1) “Determination of Wetland Boundaries,” the Applicant indicated that

19 the delineation field team “considered the Routine Delineation Procedure (Browne et al. 1995) in areas

20 mapped as NYSDEC freshwater wetlands.” In its more recent, October 30, 2020 response to Information

21 Request DEC-1, dated October 20, 2020, the Applicant again indicated that “...previously mapped areas

22 were examined using the Routine Delineation Procedure described in the New York State Freshwater

23 Wetlands Delineation Manual.”

24 While the Department would typically accept delineations of State wetlands performed in

Case No. 17-F-0619 WALTERS & WALTER 334

1 accordance with the “Routine Delineation Procedure” for undisturbed wetlands, NYSDEC mapped

2 wetlands and those contiguous with mapped wetlands within the Project area have been repeatedly

3 disturbed by agricultural practices that are exempt under Article 24. Based on the agricultural disturbance

4 history of the site, the Applicant should have relied upon the process outlined under “Delineations in

5 Disturbed Areas” found on page 23 of the Manual, following the description of “Disturbed and

6 Problematic Area Wetlands” provided on the preceding page.

7 Q. What is the significance of the Applicant not having followed the proper procedures when

8 completing its wetland delineations for the Project?

9 A. In conducting its delineation of wetlands according to NYSDEC’s Routine Delineation

10 Procedure, and not the Departmental procedure for Delineations in Disturbed Areas, the Applicant failed

11 to follow this critical step in conducting its delineations for State-mapped and contiguous wetlands within

12 disturbed portions of the Project area. As a result, the Applicant’s recent wetland delineations do not

13 closely match the fine-scale field delineations performed by a different consultant in 2004-2006 within

14 the same areas (see NYSDEC-WW-6). Based on the field data and mapping of previous, pre-disturbance

15 wetland delineations conducted in 2004-2006, NYSDEC amended the Freshwater Wetland Maps within

16 the current Project area, adding the two Class I Freshwater Wetlands, HN-118 and HN-119, the maps of

17 which were promulgated in 2014 (see NYSDEC-WW-7).

18 The Applicant’s stated use of a “Routine Delineation Procedure” in the areas that have been

19 disturbed by agriculture since 2011 are the likely cause of the discrepancies between the Applicant’s

20 delineations and the regulatory maps of the Department.

21 Q. How do New York State freshwater wetland regulations protect State mapped wetlands and

22 100 foot adjacent areas that have been impacted by exempt agricultural activities such as the

23 creation of drainage ditching, the installation of drainage tiles, and repetitive tilling?

24 A. Under 6 NYCRR § 664.4(d), once a freshwater wetland area meeting the applicable criteria for

Case No. 17-F-0619 WALTERS & WALTER 335

1 protection under Article 24 has been delineated, mapped, assigned a classification, and promulgated on

2 NYSDEC’s Freshwater Wetland Maps through a map amendment process, the wetland area continues to

3 be protected and “classified in light of its wetland conditions, and the wetland benefits set forth in section

4 24-0105 of the act and in this Part that it provided, at the time of its original designation on the map.” 6

5 NYCRR § 664.4(d).

6 Q. Does 6 NYCRR § 664(d) apply to the Project?

7 A. Yes. Despite the fact that Freshwater Wetlands HN-118 and HN-119 have been disturbed through

8 exempt agricultural activities, these wetlands and the associated 100-foot adjacent areas maintain

9 protection under Article 24 for purposes of impacts from the Project.

10 Q. In general, what are the 6 NYCRR Part 663 standards applicable to proposed activities

11 within a State-regulated wetland and associated regulated adjacent area?

12 A. The Standards for Permit Issuance presented under 6 NYCRR § 663.5(e) apply toward

13 determining if the proposed project meets regulatory standards for development within a Class I wetland

14 and adjacent area. The first step in determining the applicable standards is to identify which activity, or

15 activities, apply to the proposed project (see activities list in 6 NYCRR § 663.4(d)). This step, in turn,

16 serves to determine which standards must be applied in our review of the project.

17 Q. What type of activity applies to the Project?

18 A. This Project involves the construction of an industrial use facility which is defined as “any

19 building or facility associated with the manufacturing, production, processing or assembly of goods or

20 materials, or the production of power” (6 NYCRR § 663.2(q), emphasis added). Industrial use facilities

21 are considered incompatible with a wetland and its functions and benefits whether components are sited

22 in the wetland itself or the 100-foot regulated adjacent area (6 NYCRR § 663.4(d)(43)). Thus, pursuant

23 to 6 NYCRR § 663.5(e), this Project must be reviewed in accordance with the weighing standards set

24 forth in 6 NYCRR § 663.5(e)(2).

Case No. 17-F-0619 WALTERS & WALTER 336

1 Q. Can you describe these weighing standards?

2 A. In general terms, the weighing standards require an applicant to first demonstrate that any

3 activities proposed within, or impacts to, a wetland and its adjacent area cannot be avoided entirely.

4 If full avoidance is not possible, impacts to the functions or benefits of a wetland must be minimized.

5 Finally, any remaining loss of wetland acreage or function, or both, must be mitigated for unless it can

6 be shown that the losses are inconsequential or that, on balance, economic or social need for the project

7 outweighs the loss.

8 The degree of balancing required is commensurate with the classification of an affected wetland

9 and the severity of the remaining impacts. The higher the class of wetland, or the greater the impact

10 to a wetland or its adjacent area, the greater the burden upon an applicant to demonstrate an over-

11 riding need not to fully compensate for unavoidable impacts. The standards that must be demonstrated as

12 set forth in implementing regulations 6 NYCRR § 663.5 are “compelling economic or social need

13 that clearly and substantially outweighs the loss of or detriment to the benefits of the Class I wetland”

14 and a “pressing” need for Class II wetlands. More specifically, the standards are organized into two tiers,

15 varying according to the class of the wetland. The first tier requires avoidance and minimization of

16 impacts. For wetland Classes I, II, III and IV, the proposed activity must be compatible with the public

17 health and welfare, be the only practicable alternative that could accomplish the applicant’s objectives

18 and have no practicable alternative on a site that is not a freshwater wetland or adjacent area. For wetland

19 Classes I, II, and III, the proposed activity must minimize degradation to, or loss of, any part of the

20 wetlands or adjacent areas and must minimize any adverse impacts on the functions and benefits that

21 the wetland provides. For wetland Class IV, the proposed activity must make a reasonable effort to

22 minimize degradation to, or loss of, any part of the wetland or its adjacent area. The second tier of

23 conditions only applies once the first tier of conditions has been satisfied. These conditions vary with the

24 class of wetlands as follows:

Case No. 17-F-0619 WALTERS & WALTER 337

1 Class I Wetlands: Class I wetlands provide the State’s most critical wetland benefits. Alteration

2 of a Class I wetland is acceptable only in the most unusual circumstances – only if a determination is

3 made that the proposed activity satisfies a compelling economic or social need that clearly and

4 substantially outweighs the loss of or detriment to the wetland benefits. (See 6 NYCRR § 663.5(e)(2)).

5 Class II Wetlands: Class II Wetlands provide important benefits. An alteration of a Class II

6 wetland is acceptable only in limited circumstances. A proposed activity meets applicable standards, and

7 the Department would issue a permit, only if the Department determines that the proposed activity

8 satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the

9 wetland benefits. (See 6 NYCRR § 663.5(e)(2)).

10 Class III Wetlands: Class III Wetlands supply wetland benefits. An alteration of a Class III

11 wetland is acceptable only after the exercise of caution and discernment. A proposed activity meets

12 applicable standards, and the Department would issue a permit, only if the Department determines that

13 the proposed activity satisfies a pressing economic or social need that outweighs the loss of or detriment

14 to the wetland benefits. (See 6 NYCRR § 663.5(e)(2)).

15 Class IV Wetlands: Class IV Wetlands provide some wildlife and open space benefits and may

16 provide other benefits cited in the Freshwater Wetlands Act. Therefore, wanton or uncontrolled

17 degradation or loss of Class IV wetlands is unacceptable. A proposed activity meets applicable standards,

18 and the Department would issue a permit, only if the Department determines that the activity is the only

19 practicable alternative which could accomplish the applicant’s objectives. (See 6 NYCRR § 663.5(e)(2)).

20 Q. Can you describe the criteria on which the Department bases its decisions as to whether a

21 project meets wetlands-related statutory and regulatory standards?

22 A. The regulations (6 NYCRR Part 663) provide a step by step process that requires projects to:

23 1) avoid wetland impacts by keeping all regulated activities landward of the regulated

24 adjacent area;

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1 2) minimize impacts by maximizing setbacks within the regulated adjacent area; and

2 3) provide mitigation for all unavoidable impacts to wetlands and adjacent areas.

3 Once the Department reviews its Freshwater Wetlands Maps and identifies unmapped wetlands within

4 the project area that meet jurisdictional criteria for protection under Article 24, the official Freshwater

5 Wetland Maps are reviewed to determine whether wetlands in the project area are Class I, II, III, or IV.

6 Based on the wetland class, or classes, identified within the project area, the Department uses the

7 appropriate weighing standards to determine whether a proposed project or activity meets applicable

8 standards to issue a permit. In the case of projects subject to review under Article 10, such as the Project

9 here, the same standards apply for the Siting Board in ensuring compliance with applicable statutory and

10 regulatory standards and in determining whether to issue a Certificate for a proposed project.

11 Q. If it is determined that impacts to wetlands are unavoidable, what information must the

12 Applicant provide regarding wetland mitigation to demonstrate compliance with 6 NYCRR §

13 663.5(g) and the Department’s Guidelines on Compensatory Mitigation?

14 A. The Applicant must provide a plan that meets the regulatory requirements of 6 NYCRR §

15 663.5(g) and the Department’s Guidelines on Compensatory Mitigation. For example, the plan must

16 include the following details:

17 • A detailed mitigation site relative to proposed wetland impact areas and other state-jurisdictional

18 freshwater wetlands;

19 • A project construction timeline;

20 • Documentation of ownership of the mitigation site, or a conservation easement with participating

21 landowners unless such an agreement can be shown to not be practical, in which case, a deed

22 restriction may be employed;

23 • A monitoring plan including at least five years of monitoring, quarterly the first year and twice

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1 per year thereafter. The monitoring may need to be extended if problems arise;

2 • A commitment to maintain an 85% survival rate of tree and shrub plantings with replacements

3 in kind when the survival rate is not met; and

4 • An invasive species management plan.

5 Q. Are there State-regulated wetlands within this Project’s proposed boundary?

6 A. Yes. Based on our desktop review of the Application using the Department’s wetland mapping,

7 GIS, and site visits conducted on October 2, 2018 and May 19, 2020, the wetlands indicated below are

8 subject to Article 24 protections:

9 • Wetland HN-118 is a NYSDEC Class 1 wetland; and associated wetlandsW-1, W-39, W-8a,

10 W-7a, W-1.2 W-1.1

11 • Wetland HN-119 is a NYSDEC Class 1 wetland; and associated wetlands W-101 (see

12 NYSDEC-WW-8)

13 In addition to initially advising the Applicant of the presence of wetlands HN-118 and HN-119 in the

14 Project area during the pre-application process, these wetlands and their classifications were identified

15 for the Applicant in the jurisdictional determination letter, dated September 2, 2020 and corresponding

16 map, dated September 22, 2020 (see NYSDEC-WW-3 and NYSDEC-WW-4) as part of the Article 10

17 process.

18 Q. Can you describe the Project’s negative impacts on wetlands?

19 A. Project construction activities such as trenching, grading, creation of access roads, PV module

20 installation, fencing, and long-term maintenance within State-mapped wetlands and adjacent areas will

21 prevent the re-establishment of lost wetland functions and benefits that have been impacted by Article

22 24-exempt agricultural practices. Ongoing exempt agricultural activities such as draining (tiling,

23 ditching), tilling, planting and harvesting crops have resulted in the loss of functions and benefits of State

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1 wetlands on-site, including wildlife habitat, stormwater retention and treatment, and groundwater

2 recharge. Non-exempt Project construction and vegetative maintenance within wetlands and their buffers

3 will further prevent natural restoration of wetland hydrology, re-colonization of impacted areas by

4 hydrophytic vegetation, and re-establishment of lost wetland habitat. It takes decades for wetlands to

5 naturally recover from exempt agricultural impacts. The long-term lease agreement and non-exempt

6 industrial uses proposed within State wetlands and their adjacent areas will prolong and further inhibit

7 restoration to their pre-disturbance, Class I wetland state from when they were delineated in 2004-2006.

8 Q. What must the Applicant provide to demonstrate compliance with Article 24 and Part 663?

9 A. The Applicant is required to demonstrate that impacts to State-regulated wetlands and their

10 adjacent areas cannot be avoided and minimized through re-configuration of components or by other

11 possible means. For demonstrated unavoidable impacts to State-regulated wetlands and adjacent areas,

12 the Applicant must provide a wetland mitigation plan that will compensate for the proposed Project’s

13 impacts to the functions or benefits of wetlands. The Applicant must fully mitigate all unavoidable

14 impacts to State-regulated wetlands and adjacent areas in a manner acceptable to Department staff.

15 Q. Will the Project, as proposed, entirely avoid State-regulated wetlands and adjacent

16 areas?

17 A. No, when the proper delineation is applied, the Project, as proposed, will result in 28.88 acres

18 of permanent impacts and 1.18 acres of temporary impacts to Wetland HN-118 and 20.51 acres of

19 permanent impacts and 1.99 acres of temporary impacts to the associated adjacent area. See NYSDEC-

20 WW-5, Hecate Greene Solar Project Impacts to State Wetlands and Adjacent Areas.

21 Q. Has the Applicant demonstrated that impacts to all State-regulated wetlands and adjacent

22 areas cannot be avoided and/or minimized?

23 A. The answer to this question is unclear at this time based on the current record in this proceeding.

24 The Applicant was advised early in the Article 10 process of the presence of State-regulated wetlands

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1 HN-118 and HN-119 within the proposed Project boundary, including during the March 14, 2018 Pre-

2 Application meeting. Subsequent information was provided to the Applicant as requested on March 19,

3 2018 and the discussion was revisited again on the October 2, 2018 onsite with the Applicant’s field staff,

4 who indicated that they did not look for wetlands in areas of active agriculture. At the conclusion of the

5 site visit, Department staff and the Applicant’s consultants discussed areas that were considered to be

6 mapped State jurisdictional wetlands and asked the Applicant to explore these further. The Applicant has

7 since stated that it is unable to change the Project layout due to “existing environmental, cultural, and

8 physical restraints,” with no further discussion as to the specifics of any such constraints. (DEC’s

9 Information Request 2 (DEC-2)). While the Department recognizes that site constraints can determine

10 panel and other infrastructure placement within the Project area, the Applicant has not yet provided

11 specific detailed information, as was requested in Information Requests, for the Department to effectively

12 apply the weighing standards under Article 24. In order to effectively apply the weighing standards under

13 Article 24, the Department typically requires justification of impacts to State-regulated wetlands, and

14 cannot generally rely on conclusory statements as such justification.

15 Further, the Applicant has not yet provided any Project design updates that minimize impacts to

16 Freshwater wetland HN-118. Based on information request correspondence and other information

17 submitted by the Applicant, the current facility layout is based on the Applicant’s own delineation

18 methodology, which as previously discussed is not the proper methodology for previously disturbed

19 wetlands. While the Applicant has indicated that it considered Article 24 standards for permit issuance,

20 the Applicant has not yet illustrated this through any described efforts to reconfigure Project components.

21 Therefore, based on the currently available record, the Department views the Applicant’s responses as

22 insufficient justification or explanation regarding attempts to avoid or minimize direct impacts to

23 Freshwater wetland HN-118.

24 Based on our spatial review of the current Project design in relation to freshwater wetlands and

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1 other landscape characteristics within the boundaries of parcels included in the Project lease, along with

2 our experience in reviewing other solar project layouts facing similar challenges, we believe that there is

3 sufficient land within the Project area to accommodate PV module reconfiguration to further avoid and

4 minimize freshwater wetland impacts from the Project. (see NYSDEC-WW-8). If such reconfiguration

5 is not possible to further avoid or minimize impacts from the Project, then in order to comply with the

6 Article 24 permit issuance standards we previously outlined, the Applicant must provide an explanation

7 or justification as to why such reconfiguration is not possible.

8 Q. Has the Applicant submitted a wetland mitigation plan that meets the regulatory

9 requirements of 6 NYCRR § 663.5(g) and the Department’s Guidelines on Compensatory

10 Mitigation?

11 A. No, however, the Applicant and the Department have agreed that the Project will result in some

12 amount of impacts to State-regulated wetlands (see Applicant’s response to DEC-2) and as such, the

13 Applicant has agreed to work in consultation with DPS and Department staff to create a Wetland

14 Mitigation Plan that ensures the Project complies with the requirements of Environmental Conservation

15 Law and Article 24 and the regulatory requirements of 6 NYCRR § 663.5(g) and the Department’s

16 Guidelines on Compensatory Mitigation.

17 Q. Does the Project, as proposed, meet its statutory and regulatory burden under Article 24

18 and Part 663?

19 A. No. As set forth in previous responses, the Applicant has not yet sufficiently justified or explained

20 how it has avoided, minimized, or mitigated for impacts to State regulatory freshwater wetlands and their

21 regulated adjacent areas.

23 ECL ARTICLE 15 AND ITS APPLICATION TO THIS PROJECT

24 Q. Can you describe the Department’s policy with respect to protection of the State’s waters?

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1 A. The policy of New York State, set forth in Article 15, recognizes that New York is rich with

2 valuable water resources, and directs us as stewards of the environment to preserve and protect certain

3 lakes, rivers, streams, and ponds. These rivers, streams, lakes, and ponds are necessary for fish and

4 wildlife habitat; drinking and bathing; and agricultural, commercial and industrial uses. In addition, New

5 York's waterways provide opportunities for recreation; education and research; and aesthetic

6 appreciation. Certain human activities can adversely affect, even destroy, the delicate ecological balance

7 of these important areas, thereby impairing the uses of these waters.

8 Q. How is Article 15 implemented with respect to stream protection?

9 A. To implement this policy, NYSDEC created the Protection of Waters Program (see 6 NYCRR

10 Part 608) to prevent undesirable activities on waterbodies by establishing and enforcing regulations that:

11 (1) are compatible with the preservation, protection, and enhancement of the present and potential values

12 of the water resources; (2) protect the public health and welfare; and (3) are consistent with the reasonable

13 economic and social development of the State. The objectives of the Department’s Protection of Waters

14 Program are to (i) minimize the disturbance of streams and waterbodies and (ii) prevent unreasonable

15 erosion of soil; increased turbidity of the water; irregular variations in velocity; temperature and level of

16 waters; the loss of fish and aquatic wildlife; the destruction of natural habitat; and the danger of flood or

17 pollution. The activities regulated under this Program include but are not limited to: modification or

18 disturbance of the bed or banks of “protected streams” (6 NYCRR § 608.2) and excavation and fill in

19 navigable waters or wetlands adjacent to and contiguous to the navigable waters (6 NYCRR §608.5).

20 Q. What are considered protected streams?

21 A. Protected streams are defined in 6 NYCRR § 608.1(aa) as streams or portions of streams that have

22 any of the following water quality classifications or standards (in declining order of water quality): AA,

23 AA(T), A, A(T), A(TS), B, B(T), B(TS), C(T), or C(TS). The designation of “T” means that the waters

24 provide habitat in which trout can survive and grow; “TS” (trout spawning) means that the waters provide

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1 conditions in which trout eggs can be deposited, fertilized, develop, hatch, and grow.

2 Q. Are streams other than those defined as protected under 6 NYCRR § 608.1(aa) regulated ?

3 A. Yes, Article 15 also regulates excavation from, or the placement of fill in, any navigable waters

4 of the State (as defined in 6 NYCRR § 608.1(u)).

5 Q. Are there waterbodies within the proposed Project site?

6 A. Yes. There are 26 delineated streams referenced in the Application, of which, five (5) are Class

7 C streams and fall within the Project area including: Murders Creek, H-202 and it’s unnamed tributary

8 H-202-3A, and three other unnamed waters: H-202-2-2, H-202-2, and H-202-2-1. The Applicant

9 identified the remainder of the delineated streams as ephemeral or intermittent (see Table 23.1 of the

10 Application). The Applicant also identified 2 ponds within the Project area.

11 Q. Can you describe the Project’s negative impacts on these waterbodies?

12 A. Yes. The Applicant has estimated a total of 2,123 linear feet of impacts to mapped and newly

13 delineated tributaries onsite due to “Limits of Disturbance Placement.” These impacts will occur to

14 mapped NYSDEC C-stream (H-202) in the form of electrical trenching (28 linear feet), road construction

15 impacts (1851 linear feet), and grading area impacts (1464 of linear feet) as listed in Table 23-2, Facility

16 Construction Impacts to Delineated Streams of the Application. None of these impacts will occur in

17 NYSDEC regulated Class C(t) or above streams. Direct impacts include: 1) the direct placement of fill

18 in surface waters to accommodate road crossings, causing suspension of sediments and turbidity; 2)

19 disturbance of stream banks and/or substrates resulting from buried cable installation and culvert

20 placement causing suspension of sediment and turbidity; and 3) siltation and sedimentation due to

21 earthwork, such as excavating and grading activities. These impacts directly and adversely affect the best

22 usages of a stream, for aquatic species, pursuant to 6 NYCRR § 701.8.

23 Q. Has the Applicant demonstrated that the Project, as proposed, meets the applicable Article

24 15 standards?

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1 A. Yes, so long as the Proposed Certificate Conditions referenced below are included in any Article

2 10 Certificate ultimately issued by the Siting Board for the Project.

3 OTHER APPLICABLE STATUTORY STANDARDS

4 Q. Are there any other applicable standards related to wetlands that would apply to the

5 Project?

6 A. Yes. The Project will require a Water Quality Certification (WQC) pursuant to Section 401 of

7 the CWA. State water quality standards are set forth in 6 NYCRR § 608.9, with related regulations at 6

8 NYCRR Parts 701, 702, 703, 704 (Qualifications and Standards), and 750 (State Pollutant Discharge

9 Elimination System (SPDES) Permits).

10 Q. What are the standards for issuing a Section 401 WQC?

11 A. The CWA requires that any applicant for a federal license or permit to conduct an activity that

12 may result in a discharge into navigable waters must obtain a water quality certification from the State

13 where the activity occurs. The standards for issuing a WQC are contained in 6 NYCRR § 608.9, with the

14 burden placed on the applicant to demonstrate compliance with the following:

15 1) New York State effluent limitations and standards,

16 2) New York State water quality standards and thermal discharge criteria,

17 3) New York State new source standards,

18 4) New York State prohibited discharges, and

19 5) other New York State regulations and criteria otherwise applicable.

20 These standards mandate that the certifying agency require compliance with the Department’s water

21 quality regulations set forth at 6 NYCRR Parts 701, 702, 703, 704, and applicable provisions of Part 750.

22 Q. Does the revised Invasive Species Management Plan, Appendix 22-D, dated December 2020,

23 and submitted by the Applicant on December 16, 2020 meet the standards of ECL Article 9 and

24 implementing regulations set forth in 6 NYCRR Part 575?

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1 A. Yes.

2 PROPOSED CERTIFICATE CONDITIONS

3 Q. Has the Applicant proposed any certificate conditions to be included in an Article 10

4 Certificate ultimately issued by the Siting Board?

5 A. Yes.

6 Q. Do the Applicant’s Proposed Certificate Conditions adequately capture all of Department

7 staff’s recommendations?

8 A. Yes. The Applicant’s Proposed Certificate Conditions dated and filed on December 16, 2020, and

9 the Proposed SEEP Guide, dated December 2020 and filed on December 16, 2020, related to wetlands,

10 waterbodies, and invasive species capture Department staff’s recommendations to ensure the Project

11 complies with the requirements of Environmental Conservation Law, including Article 15 and 24, the

12 State water quality program pursuant to section 401 of the CWA, and implementing associated

13 regulations including Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of

14 New York (6 NYCRR) Parts 608, 664, 701, 702, 703, 704, and 750 and Part 575.

15 Q. Do you hold your opinions to a reasonable degree of scientific certainty?

16 A. Yes, we do.

17 Q. Does this conclude your direct testimony on these topics at this time?

18 A. Yes, it does.

347

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT ______

In the Matter of the Application of

Hecate Energy Greene 1 LLC, Hecate Energy Case No.: 17-F-0619 Greene 2 LLC, and Hecate Energy Greene County 3 LLC

for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 for a Proposed Solar Energy Project. ______

DIRECT TESTIMONY OF BRIANNA DENONCOUR AND MATTHEW PALUMBO, Ph.D.

Division of Fish and Wildlife New York State Department of Environmental Conservation

December 18, 2020

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1 WITNESS INTRODUCTION

2 Q. What is the first witness’ name, employer, title, and business address?

3 A. My name is Brianna Denoncour. I am employed by the New York State Department

4 of Environmental Conservation (NYSDEC or Department) in the Division of Fish and

5 Wildlife, Bureau of Ecosystem Health as a Wildlife Biologist and Avian Ecologist. I have

6 been in this position for over 15 years. I currently work in the NYSDEC Central Office,

7 Albany, New York.

8 Q. Ms. Denoncour, what is your educational background, experience, and

9 professional certifications?

10 A. Please see a copy of my resume marked as NYSDEC-DP-1.

11 Q. What is the second witness’ name, employer, title, and business address?

12 A. My name is Matthew Palumbo. I am employed by the NYSDEC in the Division of

13 Fish and Wildlife, Bureau of Wildlife, as a Wildlife Biologist with my primary focus on

14 avian conservation issues. I have been in this position for approximately 2 years. I currently

15 work in the NYSDEC Central Office, Albany, New York.

16 Q. Dr. Palumbo, what is your educational background, experience, and

17 professional certifications?

18 A. Please see a copy of my resume marked as NYSDEC-DP-2.

19 Q. What are your collective responsibilities at the Department?

20 A. As Wildlife Biologists, we assist in the programmatic oversight for the State’s

21 statutory and regulatory threatened and endangered species programs. In this capacity, we

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1 oversee the implementation of Article 11 of the Environmental Conservation Law (ECL)

2 (Article 11), and its implementing regulations set forth in Part 182 of Title 6 of the Official

3 Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) (Part

4 182). Included in this oversight is the review of Article 11 permit applications, as well as

5 compliance with the requirements of Article 11 for projects reviewed under Article 10 of

6 the Public Service Law (Article 10), and the Department’s assessment of potential and

7 realized impacts to birds at wind and solar energy projects.

8 Q. Ms. Denoncour, what is your experience regarding rare, threatened and

9 endangered species and review of proposed solar and wind energy projects?

10 A. I coordinate the Department’s review of potential impacts that major wind and solar

11 energy development projects have on wildlife and terrestrial habitats, including State-listed

12 birds, bats, grasslands, and forests. This is for projects reviewed under Article 10 as well

13 as those reviewed under the State Environmental Quality Review Act.

14 I have reviewed many proposed Article 10 projects, including for wind and solar

15 energy development, as well as a Part 182 permit application for impacts to State-listed

16 threatened and endangered species. For example, I worked on the Hounsfield Wind Farm

17 Part 182 permit and provided testimony as an expert witness in several Article 10

18 proceedings regarding impacts to threatened and endangered species. I have also been

19 involved in developing protocols for conducting surveys targeting State-listed breeding and

20 wintering grassland bird species, and I drafted and oversaw the release and implementation

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1 of the Guidelines for Conducting Bird and Bat Studies at Commercial Wind Energy

2 Projects (2009, revised 2016) (Guidelines).

3 Q. Dr. Palumbo, what is your experience regarding rare, threatened and

4 endangered species and review of proposed solar and wind energy projects?

5 A. I have reviewed and assisted with reviews of the potential impacts that major wind

6 and solar energy development projects, including proposed Article 10 projects, have on

7 wildlife and terrestrial habitats, with a primary focus on State-listed birds. As part of the

8 Bird and Mammal Diversity team within the Department, I have cooperated with regional

9 biologists on monitoring programs for multiple avian taxa and I am the New York State

10 Non-game Migratory Bird Technical representative for the Atlantic Flyway.

11 Q. What is the purpose of your testimony?

12 A. The purpose of our testimony is to provide an overview of the State’s threatened

13 and endangered species program and, specifically, how the ECL, implementing

14 regulations, and responsibilities regarding the protection of wildlife should be applied

15 when assessing, avoiding, minimizing, and mitigating the impacts of solar electric

16 generation facilities on grassland bird species, particularly threatened and endangered

17 grassland bird species.

18 Our testimony will: 1) provide background regarding the biology, behavior, and

19 habitats of grassland birds, and 2) identify certain State-listed threatened and endangered

20 species, listed in accordance with Article 11 and the implementing regulations found at

21 Part 182, that could be impacted by the proposed Hecate Greene Solar Electric Generation

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1 Project (Project). In that context, we will discuss: (i) the factors the Department considers

2 in making regulatory determinations pursuant to the applicable statutes and regulations; (ii)

3 how these factors apply to the Project; and (iii) whether the Project has met the applicable

4 State standards.

5 We are advised by Department Counsel that the threatened and endangered species

6 program, with its attendant statutory and regulatory authority, applies to the Project, as

7 proposed, and to the Siting Board’s deliberations and required findings pursuant to Article

8 10. Accordingly, our testimony discusses how the Siting Board should apply the State’s

9 statutory and regulatory threatened and endangered species program to ensure the Project’s

10 compliance with Article 11 and its implementing regulations set forth in Part 182, and how

11 the Siting Board should apply the same to its deliberations and required findings under

12 Article 10 should it decide to approve the Project.

13 Q. What information has provided the basis for your testimony?

14 A. Our testimony is based on the Project application - specifically Exhibit 22 and

15 corresponding shapefiles and Appendices, submitted by Hecate Energy Greene 1 LLC,

16 Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC (Applicant) on

17 December 27, 2019, together with supplemental filings related to Exhibit 22 filed on March

18 20, 2020 and July 29, 2020 (collectively, Application). In addition, we have reviewed the

19 Applicant’s Proposed Certificate Conditions, dated and filed on December 16, 2020. We

20 have also reviewed documents and materials included in a list of references relied upon for

21 this testimony, which is attached hereto as NYSDEC-DP-3. We have also reviewed the

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1 Department’s databases for relevant threatened and endangered species information. We

2 have reviewed all the above-referenced materials in the context of ensuring that the Project

3 meets the requirements of Article 11 and Part 182.

4 Regional wildlife staff have visited the Project area regularly during each winter

5 over the last several years to view the current condition of habitat in areas with documented

6 threatened and endangered species occurrences, to conduct winter raptor surveys, and to

7 train seasonal wildlife technicians, and have provided us with a description of the Project

8 area over the years.

9 BIOLOGY AND BEHAVIORS OF GRASSLAND BIRDS

10 Q. What is a general description of grassland birds?

11 A. Grassland birds consist of those species that rely on open habitats lacking in tall

12 trees, extensive shrub cover, and human infrastructure—such as grasslands, hayfields,

13 pastures, fallow fields, and wet meadows—to successfully perform one or more essential

14 life functions including foraging, nesting, breeding, roosting, wintering, and migrating.

15 Q. What is the biology and behavior of grassland birds in general?

16 A. Depending on the species, grassland birds breed and winter within large grassland

17 fields spread across the State. Different species vary in their preferences for the various

18 habitat characteristics found within grassland field types. Most species require large

19 (greater than 25 acres) expanses of open habitat, generally free of large trees, hedgerows,

20 tall structures (such as power poles), wind turbines, meteorological towers, houses, busy

21 roads, or other human disturbances (Dechant et al., 2002; Peterson, 1983; Morgan and

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1 Burger, 2008; Smith and Smith, 1992). To successfully breed, some species require 80-100

2 acres or more of quality open habitat (Peterson, 1983; Environment Canada, 2013).

3 Vegetation, including grasses, sedges, some forbs, as well as agricultural crops such as hay

4 and alfalfa, provide cover for nesting, foraging, and roosting. While monocultures of corn,

5 soybeans, and other row crops are not preferred nesting habitat for most grassland birds,

6 these agricultural activities are often in place on a rotational basis on the landscape. Such

7 fields provide suitable nesting habitat when planted with hay, alfalfa, or left fallow for one

8 or more years following the presence of row crops. Areas that remain as harvested row

9 crops over the winter often serve as foraging areas for wintering raptors hunting small

10 mammals that are attracted to waste grain.

11 Q. Are grassland bird species a particular conservation concern in New York

12 State?

13 A. Yes. Quality grassland habitat is a cover type that requires regular maintenance and

14 is declining in New York State, and grassland bird species have been declining faster than

15 any other habitat-species suite in the northeastern United States (Vickery and Herkert,

16 2001; Morgan and Burger, 2008; Ribic et al., 2009; Stevens et al., 2013; Peterjohn and

17 Sauer, 1999). The primary cause of these declines is habitat loss, including from

18 abandonment of agricultural lands, as once open areas revert to later successional stages of

19 shrub and young forest cover. Some other threats to grassland bird species on the landscape

20 include habitat fragmentation, mortality incurred during summer agricultural activities,

21 predation by wild and domestic animals, parasitism by brown-headed cowbirds (Molothrus

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1 ater), and human disturbance (Norment et al., 2010; Brennen and Kuvlesky, 2005).

2 Stabilizing the declines of populations of grassland birds has been identified as a

3 conservation priority by virtually all bird conservation initiatives, groups, and agencies in

4 the northeastern United States, as well as across the continent (Vickery and Herkert, 2001;

5 Brennan and Kuvlesky, 2005).

6 Q. Have any particular areas been identified in response to conservation

7 concerns?

8 A. Yes. Winter Raptor Concentration Areas are recognized by the Department as

9 important areas across the State utilized on a regular and long-term basis by several species

10 of wintering grassland raptors. The entire Project area is located within the Coxsackie Flats

11 Winter Raptor Concentration Area.

12 Q. What species of grassland birds are of particular conservation concern in New

13 York State?

14 A. There are two species of grassland birds in New York State listed as endangered:

15 short-eared owl (Asio flammeus), and loggerhead shrike (Lanius ludovicianus); four

16 species listed as threatened: northern harrier (Circus hudsonius), upland sandpiper

17 (Bartramia longicauda), sedge wren (Cistothorus platensis), and Henslow’s sparrow

18 (Centronyx henslowii); and three species considered species of special concern: horned lark

19 (Eremophila alpestris), vesper sparrow (Pooecetes gramineus), and grasshopper sparrow

20 (Ammodramus savannarum). All of these species are considered species of greatest

21 conservation need, as are the following three grassland bird species: American kestrel

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1 (Falco sparverius), bobolink (Dolichonyx oryzivorus), and eastern meadowlark (Sturnella

2 magna) (NYSDEC, 2015).

3 Q. What threatened and endangered, species of special concern, and species of

4 greatest conservation need grassland bird species have been documented in the

5 Project area during surveys performed in support of the Application?

6 A. During surveys performed in support of the Application the following species have

7 been observed on the Project site: (i) short-eared owl (SEOW), being a State-listed

8 endangered grassland bird species; (ii) northern harrier (NOHA), being a State-listed

9 threatened grassland bird species; (iii) grasshopper sparrow, being a grassland bird species

10 designated as species of special concern. In addition, bobolink and eastern meadowlark,

11 being grassland bird species of greatest conservation need, were observed in the Project

12 site on said surveys.

13 Q. What threatened and endangered, species of special concern, and species of

14 greatest conservation need grassland bird species have been documented in the

15 Project area during other surveys, and reported in the Application?

16 A. In addition to grassland bird species observed while conducting studies in support

17 of the Application, the following have also been documented in or near the Project area

18 through the NYS Breeding Bird Atlas (BBA), US Geological Survey Breeding Bird Survey

19 (BBS), Christmas Bird Count (CBC), New York Natural Heritage Program (NHP),

20 NYSDEC surveys (DEC), and recent (2008-2018) eBird records, and reported in the

21 Application: short-eared owl (CBC, NHP, DEC); northern harrier (CBC, NHP, DEC);

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1 upland sandpiper (eBird); horned lark (DEC); vesper sparrow (eBird); and American

2 kestrel (DEC)

3 Q. What threatened and endangered, species of special concern, and species of

4 greatest conservation need grassland bird species have been documented in the

5 Project area by the Department or other sources not included in the Application?

6 A. In addition to grassland bird species observed while conducting surveys and

7 reported in the Application from the sources mentioned above, the following grassland bird

8 species have been documented in the Project area by the Department, reported in the last

9 BBA, USGS BBS data, CBC data, and recent (2010-present) eBird records: short-eared

10 owl (eBird); northern harrier (eBird); horned lark (CBC, eBird); grasshopper sparrow

11 (BBS); bobolink (BBA, BBS, eBird); American kestrel (BBA, BBS, CBC, eBird); and

12 eastern meadowlark (BBA, BBS, eBird).

13 Q. Which of these species will be the focus of your testimony?

14 A. Our testimony will focus on SEOW and NOHA.

15 Q. Why is your testimony focusing on short-eared owl and northern harrier?

16 A. They are State-listed endangered (SEOW) and threatened (NOHA) species

17 observed in the Project area and have been documented to roost and forage regularly

18 throughout the winter over the last several decades within the entire Project area. As noted

19 above, the entire Project is sited in the Coxsackie Flats Winter Raptor Concentration Area.

20 This is a well-known and important wintering area that has had documented use by SEOW,

21 NOHA, and other species of grassland birds since 1975.

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1 Q. What is the biology and behavior of SEOW?

2 A. SEOW are considered local and uncommon breeders in New York State as the State

3 is at the southern extent of the owl’s breeding range (McGowin and Corwin, 2008). SEOW

4 are migratory, and winter within New York State (NYSDEC, 2015). The non-breeding

5 wintering habitats consist of grassland communities composed of early successional

6 vegetation/old fields, open grasslands, hayfields, pastures, agricultural fields, fallow fields,

7 marshes, wet meadows, landfills, and airports (Wiggins et al., 2020; Schneider, 2003). The

8 most common essential behaviors exhibited by the species while in New York are foraging

9 and roosting. The average winter home range size of SEOW in New York State is

10 approximately 540 acres (ranging from 121.8 – 3,103.8 acres) (Gahbauer et al., in press;

11 NYSDEC, 2014).

12 SEOW roost during the day, often communally, in sites that provide shelter either

13 on the ground in areas where there are grasses, forbs, and few shrubs, or occasionally in

14 small conifers such as Christmas tree farms or decorative conifers in residential yards

15 (Schneider, 2003; Wiggins et al., 2020). The open landscapes and grassland communities

16 these birds use can support abundant small mammals which are the species primary food

17 source during winter. While foraging, SEOW course low (typically less than three meters)

18 across open areas, hovering and gliding in pursuit of prey (Schneider, 2003; Wiggins et al.,

19 2020), and utilize similar habitats as those used for roosting, as well as areas of the previous

20 year’s row crops, which attract the small mammals on which owl typically eat (Williams

21 et al., 2000; Pinkert et al., 2002).

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1 Q. What is the biology and behavior of NOHA?

2 A. NOHA breed, winter, and migrate throughout most of New York State (NYSDEC,

3 2015). NOHA have large territories, and they require expansive areas of open grassland

4 and marshes for nesting and foraging (NYSDEC, 2015; Wilson et al., 2015). NOHA were

5 considered a widespread and common breeder in New York until the mid-1950s. NOHA

6 usually fly slowly and low over the ground while foraging. Most males have either one

7 mate or two mates at a time, but some have up to five mates when food is abundant. Males

8 court the females and advertise their territory by performing sky-dancing displays:

9 undulating, rollercoaster-like flights up to 1,000 feet off the ground, usually performed near

10 the nest but sometimes covering more than half a mile (Smith et al., 2020).

11 NOHA require large expanses of contiguous open grassland or marshy areas for

12 foraging, somewhat taller, denser cover for nesting and roosting, and unobstructed air space

13 for performing aerial courtship displays. NOHA return to the same general area in

14 subsequent years for wintering and breeding, particularly if they are successful in raising

15 young.

16 Q. Based on your knowledge of the site, what are your professional judgements

17 regarding the grassland habitat in the Project area, and SEOW and NOHA use of the

18 area?

19 A. There are large expanses of habitat suitable for wintering NOHA and wintering

20 SEOW within the Project Area. It is well documented that these species have been present

21 throughout the Project site, roosting and foraging in relatively large numbers, for more than

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1 40 wintering seasons. While the number of individuals observed in any given year varies,

2 NYSDEC has recorded multiple SEOW and NOHA in and around the Project every winter

3 since 2002, in addition to many eBird and Natural Heritage Program records.

4 IMPACTS TO GRASSLAND BIRDS

5 Q. Are grassland birds—including SEOW and NOHA—impacted by solar

6 electric generation facilities?

7 A. Yes. Depending on case-specific factors such as the location of project components

8 and construction methods, the siting of solar electric generation facilities may result in

9 direct and indirect impacts to grassland birds from both construction and operation of solar

10 electric generation facilities, specifically: (i) direct impact and loss of habitat by the

11 placement of project components in open areas utilized by grassland bird species; and (ii)

12 direct and indirect impacts to individual grassland birds by ground clearing and other

13 construction and restoration-related activities through destruction of nests (including eggs

14 or nestlings), roosting sites, or potentially adult birds engaged in nesting, foraging, or

15 roosting behaviors. We are not aware of any evidence that species dependent on open fields

16 for foraging, nesting, wintering, and other essential behaviors will successfully utilize solar

17 electric generation facilities for such essential behaviors.

18 Q. How will the Project, as proposed, impact SEOW and NOHA?

19 A. The Department has determined that construction and operation of the Project will

20 result in take of SEOW and NOHA including both take of individuals of these species as

21 well as of their occupied habitats. Without specific work windows enforced in occupied

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1 habitat during the wintering season, or, alternatively, daily monitoring by a qualified

2 environmental monitor during the wintering season, Project construction activities,

3 including increased human presence, traffic, noise, ground disturbance, and erection of

4 structures are likely to disrupt birds’ normal activities, and may take individual SEOW or

5 NOHA through mortality of individuals, disturbance or destruction of winter roost sites, or

6 disruption of normal foraging behaviors. Once constructed, Project components adversely

7 affect occupied habitat of wintering SEOW and NOHA.

8 Q. What does occupied habitat mean?

9 A. Occupied habitat is defined in the regulations implementing Article 11 as the areas

10 where threatened and endangered species have been documented exhibiting “essential

11 behaviors.” Essential behaviors are further defined as including breeding, hibernation,

12 reproduction, feeding, sheltering, migration, movement, and overwintering.

13 Q. Does the Project propose any components in occupied grassland

14 habitat?

15 A. Yes. There are solar panel arrays, roads, substation, and other Project components

16 proposed to be sited within occupied habitat utilized by both wintering SEOW and NOHA.

17 Q. displacement of grassland birds due to structures, such as solar electric

18 generation panels and related project components?

19 A. Most grassland bird species prefer an unobstructed view of the horizon and are

20 disturbed by tall structures in the vicinity of their nesting, foraging, and roosting areas, and

21 they may utilize otherwise quality habitat to a lesser degree once such structures are present

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1 (Shafer and Buhl, 2015; Pearce-Higgins et al., 2012; Stevens et al., 2013; Smith and Smith,

2 1992; Peterson, 1983).

3 Unlike wind energy facilities, the impacts to grassland birds caused by the presence

4 of photovoltaic solar energy facilities are very understudied, particularly in the northeast

5 (Smith and Dwyer, 2016; DeVault et al., 2014). All open habitat areas converted to solar

6 panel coverage are likely to be rendered unsuitable for use by grassland bird species,

7 particularly threatened and endangered species. The presence of solar panels in particular,

8 but also fences and other infrastructure, obstructs access to the ground for birds foraging

9 on the wing, and introduces low overhead structures avoided by ground-nesting and

10 roosting birds. The Department is not aware of any information on the landscape-level

11 impacts of solar facilities on grassland birds, or to what degree the presence of individual

12 projects may displace grassland bird species from otherwise suitable habitat, alter nesting

13 attempts or success, change foraging behavior, or deter the use of winter roosts in fields

14 adjacent to project components. Many species of grassland birds are area-sensitive, and

15 habitat fragmentation caused by siting multiple solar energy projects in open habitats

16 across the landscape may have negative impacts on the State’s breeding and wintering

17 grassland bird species.

18 Q. Can you elaborate as to the impacts to grassland birds during construction of

19 solar electric generation facilities?

20 A. Construction and restoration activities in occupied habitat are likely to prevent

21 individuals from utilizing the area to perform these critical life functions. Increased human

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1 presence, traffic, noise, ground disturbance, equipment or vehicle storage, and erection of

2 structures may disrupt birds’ normal activities, including foraging and courtship behaviors.

3 Nests or roosts may be destroyed or otherwise directly impacted by construction activities

4 that disturb the ground at and around such areas.

5 Q. Do you have any further comments on the availability of information

6 regarding impacts on grassland birds from solar electric generation facility?

7 A. To date, there are no operating solar energy projects in New York State that have

8 been issued an Article 10 Certificate, and thus no such facility has implemented any

9 requirements regarding the incidental take of grassland birds. Therefore, the Department is

10 not aware of any information on post-construction monitoring of solar electric generation

11 projects in the State to evaluate the actual impacts on grassland birds. It has been shown

12 that changes in abundance and density of birds at wind energy projects are unlikely to be

13 adequately detected during studies conducted only in the first 2-5 years post-project

14 construction (Madders and Whitfield, 2006; Stewart et al., 2007; Dohm et al., 2019).

15 Douglas et al., (2011) recommends post-construction surveys occur in years 1, 2, 3, 5, 10,

16 and 15 after the start of wind project operation to monitor long-term impacts to grassland

17 birds and account for annual fluctuations in populations. Multiple years of post-

18 construction monitoring over the course of a wind energy project’s lifetime are required to

19 sufficiently evaluate the long-term direct and indirect impacts on breeding and wintering

20 grassland birds, particularly State-listed threatened and endangered species.

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1 These same post-construction monitoring requirements would also be applicable

2 for solar energy facility such as the Project. Post-construction wildlife monitoring for the

3 Project should be designed to address questions regarding species-specific impacts. In the

4 event that the targeted species are observed, and it can be adequately demonstrated that

5 essential behaviors are occurring, mitigation actions may be re-evaluated.

6 APPLICATION OF PART 182 TO THE PROJECT

7 Q. Does Part 182 apply to the Project?

8 A. Yes. As previously mentioned in this testimony, SEOW and NOHA are a State-

9 listed endangered and threatened, respectively, species that have been documented

10 wintering within the Project area, including through observations on the Project site during

11 surveys performed in support of the Application. Based on the Department’s records,

12 current presence of suitable habitat, on-site surveys demonstrating these species are present

13 in the Project area, the siting of Project components in occupied habitat, other information

14 provided by the Applicant, and construction activities proposed during winter periods, we

15 conclude that the Project poses a threat to SEOW and NOHA and their habitat and thus, is

16 likely to take SEOW and NOHA. Therefore, the requirements of Part 182 apply to the

17 Project.

18 Q. What are the types of take likely to occur from the Project, as proposed?

19 A. The Project, as proposed, will take (direct impact) occupied habitat of wintering

20 SEOW and NOHA, and depending on final certificate conditions is likely to result in a take

21 (direct and indirect impacts) of individual SEOW and NOHA.

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1 Q. How does Part 182 apply to the Project?

2 A. Part 182 first requires that the Applicant avoid all impacts to threatened and

3 endangered species, in this case SEOW and NOHA. If such impacts cannot be fully

4 avoided based on a showing by the Applicant that full avoidance is impracticable, then the

5 Applicant is required to minimize impacts to SEOW and NOHA to the maximum extent

6 practicable. If avoidance of impacts is demonstrated to be impracticable, the Applicant

7 must provide appropriate and effective mitigation, resulting in a net conservation benefit

8 to SEOW and NOHA, as discussed in more detail below.

9 Q. What is required under Part 182 regarding avoidance and minimization of

10 take of listed species, specifically SEOW and NOHA?

11 A. Part 182 first requires that the Applicant avoid all impacts to threatened and

12 endangered species, in this case SEOW and NOHA to the maximum extent practicable.

13 The Department’s preferred outcome in all cases is full avoidance of adverse impacts to

14 protected resources, including threatened and endangered species and their habitats.

15 If the Applicant can demonstrate that full avoidance of impacts to SEOW and

16 NOHA is impracticable, Part 182 requires that appropriate minimization measures be

17 implemented and then mitigation of all unavoidable impacts be conducted in a manner that

18 achieves a net conservation benefit to the impacted species. Uncertainty about the success

19 of proposed mitigation approaches is unavoidable and, as a result, every effort should be

20 made to first avoid and minimize any impacts to SEOW and NOHA. If full avoidance of

21 impacts is demonstrated by an applicant to be impracticable, the Department will work

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1 with the Applicant on its proposal to first minimize impacts to the maximum extent

2 practicable before mitigation is adopted. However, the burden is on the Applicant to

3 propose and accomplish effective and successful minimization.

4 Construction Impacts: The best way to avoid construction-related impacts to

5 threatened and endangered grassland bird species is to design a project such that all

6 infrastructure, construction activities, and other disturbances occur outside of occupied

7 grassland habitats. If project impacts must occur in occupied grassland habitat, direct take

8 of individual listed grassland bird species can be avoided if all work is done outside of the

9 time periods during which birds may be present in the area (construction work windows).

10 To avoid take of individuals related to construction impacts to wintering threatened and

11 endangered grassland bird species, no ground clearing, construction disturbances,

12 equipment or vehicle storage, non-emergency maintenance, or restoration activities should

13 occur in occupied habitat between November 1 and March 31. As it relates to the Project,

14 impacts are likely to occur to wintering SEOW and NOHA, which requires all ground

15 disturbance activities in SEOW and NOHA occupied habitat to occur outside the window

16 of November 1 to March 31. In other words, such work should be done during the April 1

17 to October 31 period to avoid direct take.

18 If it is not practicable for construction to occur only outside of the November 1 to

19 March 31 window, direct impacts to wintering SEOW and NOHA may be minimized by

20 conducting daily surveys by an environmental monitor to ensure that individuals are not

21 found in a particular area where construction is planning to occur. It should be noted that

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1 such surveys and stop work orders by an environmental monitor minimize the likelihood

2 of a take, but do not completely avoid a potential take of these species, since the

3 environmental monitor may not observe every individual, and the species may return after

4 a survey is completed, either during or prior to construction. If an individual is present, but

5 work has not stopped in the area observed, a direct take is likely.

6 Operational Impacts: Some actions to avoid impacts to listed grassland bird species

7 from operation of a solar energy project include: siting all project components outside areas

8 of occupied habitat; co-locating infrastructure as much as possible; and performing non-

9 emergency maintenance and restoration activities outside of the time periods during which

10 birds are present on site, as described above. Siting all project components as far away

11 from the centers of grassland habitat, open fields, and marshes as possible will minimize

12 impacts to grassland bird species due to the presence of Project infrastructure and increased

13 human activity.

14 Q. Does the Project, as proposed, avoid adverse impacts to SEOW and NOHA, as

15 required by Part 182?

16 A. No. The Project, as proposed, includes solar panels and other infrastructure sited in

17 habitat occupied by both SEOW and NOHA. Further, disturbance activities, including

18 those causing temporary impacts, have not been proposed to occur only during times that

19 will avoid construction impacts to these species during the wintering season (November 1

20 through March 31), as noted in the Applicant’s response to Information

21 Request/Interrogatory DEC-3 (DEC-3) and the Proposed Certificate Conditions.

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1 Q. How can the Project, as proposed, avoid operational impacts to SEOW and

2 NOHA?

3 A. To avoid all impacts to SEOW and NOHA, the Project including all of its

4 components must be sited outside of occupied habitat. This would necessitate moving all

5 panel arrays and associated access roads, fencing, and other Project infrastructure between

6 one and four miles from their current proposed location. The Applicant has indicated that

7 this is impracticable (DEC-3).

8 Q. How can the Project avoid construction impacts to SEOW and NOHA?

9 A. The Project could avoid construction and restoration impacts to these species by

10 avoiding ground clearing, construction disturbances, equipment or vehicle storage, and

11 restoration activities in occupied habitat between November 1 and March 31.

12 Q. Does the Project, as proposed, minimize, to the maximum extent practicable,

13 adverse impacts to SEOW and NOHA, as required by Part 182?

14 A. No. The Application does not discuss the siting of Project components in relation

15 to occupied threatened and endangered species habitat, including removing all or some of

16 the infrastructure from those areas. In addition, as discussed above, the entire Project is

17 sited within occupied habitat, and the Applicant stated it is not feasible to move some

18 Project components outside of occupied habitat (see DEC-3). Further, the Application does

19 not contain proposed construction and disturbance dates that will avoid or minimize

20 construction impacts to SEOW and NOHA. As discussed above, the Applicant states it is

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1 not likely to meet appropriate work windows for all construction activities in occupied

2 habitat (DEC-3).

3 Q. How can the Project, as proposed, minimize operational impacts to SEOW and

4 NOHA?

5 A. The Project could minimize operational impacts to these species through the

6 removal of some, but not all, of the Project components and associated access roads and

7 fencing from the Project layout. However, the Applicant states that removal or condensing

8 of some Project components is not practicable (DEC-3).

9 Q. How can the Project, as proposed, minimize construction impacts to SEOW

10 and NOHA?

11 A. The Project could minimize construction impacts to these species by completing as

12 much ground clearing, construction disturbances, equipment or vehicle storage, and

13 restoration activities as practicable between April 1 and October 31 (outside of the

14 wintering SEOW and NOHA season). If construction must occur from November 1 and

15 March 31, the Project could utilize an environmental monitor or biologist (qualified to

16 conduct wintering grassland bird surveys) to conduct daily grassland bird surveys prior to

17 and during construction in occupied habitat. If the environmental monitor observes (or is

18 notified of an observation of) a threatened or endangered grassland bird species during the

19 survey or otherwise during construction, the environmental monitor could minimize the

20 potential for a direct take by temporarily stopping work within the area of active

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1 construction where the individual was observed until such time DPS Staff, in concurrence

2 with NYSDEC, are consulted and authorize work to continue.

3 Q. What is required under Part 182 regarding mitigation for unavoidable take of

4 State-listed species, specifically SEOW and NOHA that occur after all practicable

5 minimization measures are implemented?

6 A. After an applicant has avoided or minimized impacts to a listed species to the

7 maximum extent practicable, Part 182 requires mitigation for projects that are reasonably

8 expected to result in the take of listed threatened and endangered species, including their

9 occupied habitat. The Department calculates the amount of occupied habitat adversely

10 modified by a project for which mitigation is required by using the methodology described

11 below.

12 The Part 182 standards require that the Project, in total, must provide a net

13 conservation benefit to the impacted species. While the Department does not itself issue

14 Part 182 permits for projects subject to Article 10 review, this same standard applies to

15 such projects, including to the Project at hand. To meet this requirement, if an applicant

16 has demonstrated that full avoidance is impracticable and has implemented all necessary

17 and appropriate minimization measures to the maximum extent practicable, then a

18 mitigation measure must be reasonably expected to have a positive impact on the species

19 and not just exceed the calculated loss of animals or habitat.

20 Part 182 does not speak to species-specific mitigation. If avoidance cannot

21 practically be achieved, and an applicant and NYSDEC agree upon minimization measures

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1 to be implemented, the Department encourages a potential applicant to propose one or more

2 measures that are likely to result in a net conservation benefit to the affected species. In

3 general, a mitigation measure must either demonstrably and reliably reduce the impact of

4 an existing threat to the species or proactively increase the productivity or abundance of

5 the species or its habitat. For a mitigation measure to be accepted as meeting the definition

6 of net conservation benefit, the implementation of the action should be reasonably expected

7 to successfully provide the necessary benefits to the species.

8 Q. How should the Applicant develop a mitigation and implementation plan?

9 A. Ideally, mitigation actions are developed in consultation with, and approved by, the

10 Department, implemented, and shown to be successful prior to the impactful action

11 occurring. If it is not practicable to implement mitigation and achieve a net conservation

12 benefit before an impact occurs, then a mitigation plan and implementation plan must be

13 developed with, and approved by, the Department prior to the impact occurring, and

14 financial and legal assurances must be in place to ensure the mitigation action will occur

15 and a net conservation benefit will be achieved. A finalized mitigation plan demonstrating

16 a net conservation benefit to SEOW and NOHA and an implementation plan, both

17 approved by the Department, should be required before the Project commences

18 construction.

19 Q. What is the most widely accepted mitigation measure for unavoidable impacts

20 to SEOW and NOHA?

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1 A. Conserving or creating quality grassland habitat and managing the lands with

2 Department-recommended best management practices is the most widely accepted

3 mitigation action for achieving a net conservation benefit to grassland bird species,

4 including SEOW and NOHA. This can be accomplished by working with local

5 conservation groups or land trusts or acquiring property rights to the land outright.

6 When managing fields for grassland birds, the location, the timing of mowing, the

7 amount of thatch, and the vegetative makeup of the field are important characteristics that

8 must be considered (Morgan and Burger, 2008; NYSDEC, 2018). The size and shape of

9 the fields being considered for mitigation purposes, as well as the habitat types in the

10 overall landscape surrounding the mitigation areas, are also of great importance. Mitigation

11 areas and management actions must be targeted to specifically benefit SEOW and NOHA.

12 Q. What type of mitigation do SEOW and NOHA require to achieve a net

13 conservation benefit?

14 A. Wintering SEOW and NOHA require similar habitat characteristics, including the

15 need for large expanses (preferably 100 or more contiguous acres) of grassland habitat

16 regularly managed to maintain a vegetative structure beneficial to these species. The

17 specific management actions are similar for both wintering SEOW and wintering NOHA,

18 thus the Department is willing to accept a combined mitigation plan in this case. Such

19 mitigation for SEOW and NOHA must include land management activities appropriate for

20 creating or maintaining habitat suitable for use by wintering SEOW and wintering NOHA

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1 and occur on a schedule that does not disrupt foraging, wintering, breeding, or other

2 essential behaviors of any threatened or endangered species.

3 Q. What is your preferred mitigation for unavoidable impacts to SEOW and

4 NOHA?

5 A. Our preferred mitigation for impacts to SEOW and NOHA is the protection and

6 management of existing grassland habitat on, or within close proximity to, the Project site,

7 following Department-recommended best management practices. Any proposed mitigation

8 area must be as large and contiguous as possible, including at least one area of 100 acres

9 or more in size.

10 Q. Is the Department willing to consider and accept other mitigation measures

11 for SEOW and NOHA?

12 A. Yes, provided that the proposed mitigation measures demonstrate a net

13 conservation benefit and comply with Part 182 standards.

14 PROJECT SPECIFIC PART 182 MITIGATION

15 Q. How does the Applicant address the operational impacts to SEOW and NOHA

16 from the Project?

17 A. The Applicant filed a Preliminary Net Conservation Benefit Plan (NCBP), dated

18 July 2020, as a supplement to the Application filed on July 29, 2020 to address the

19 operational impacts (i.e., the take of occupied habitat) of the Project on SEOW and NOHA

20 known to be wintering in the Project area. While the Applicant and the Department have

21 agreed in principle on the content on a Part 182-compliant NCBP, the current plan still

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1 requires additional information before it can be considered acceptable. Department staff

2 will continue to work with the Applicant to finalize the NCBP.

3 Q. Does the proposed NCBP for the Project meet Part 182 standards, including

4 the required mitigation and net conservation benefit?

5 A. Yes, provided that the Applicant ultimately submits and implements a NCBP that

6 is generally consistent with the July 2020 NCBP and addresses any remaining comments

7 by the Department. If so, such a revised NCBP is likely to meet Part 182 standards and,

8 thus, the included take and mitigation acreage is acceptable to the Department for the

9 purposes of Part 182 compliance.

10 The Department will work with the Applicant to determine the appropriate size,

11 shape, number, and location of the mitigation area(s) for the Project. Such details have not

12 been finalized in the current NCBP, but must ultimately be identified for the Department

13 to be able to accept the final NCBP. Mitigation areas less than 25 acres in size will not be

14 accepted, and we prefer a minimum of one contiguous area not less than 100 acres in size.

15 Q. To clarify, which type of take does the proposed NCBP address?

16 A. The proposed NCBP addresses the take of occupied habitat for wintering SEOW

17 and NOHA. The take of SEOW and NOHA individuals is not addressed by the NCBP -

18 full avoidance of impacts to SEOW and NOHA individuals can be achieved through the

19 measures described above.

20 Q. Are there any aspects of the NCBP that are not compatible with mitigation for

21 threatened and endangered grassland bird species?

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1 A. Yes, we are opposed to the proposed public trails in the mitigation areas.

2 Introducing a new source of disturbance to occupied habitat that currently has no trails or

3 foot traffic diminishes the value of maintaining the lands with the intent to protect SEOW

4 and NOHA. We suggest removal of such trails from the mitigation areas. In addition, siting

5 an overhead transmission line through currently undisturbed occupied habitat may reduce

6 the quality of the habitat, and could decrease the amount of mitigation acreage available in

7 those areas. Should this remain part of the plans for the mitigation parcel in the NCBP for

8 the Project, this will need to be evaluated by the Department together with the other aspects

9 of the proposal previously discussed.

10 Q. Would your position change regarding locations of Project components if the

11 Project layout is revised?

12 A. Possibly. If the Project layout is revised by the Applicant or the Siting Board,

13 Department staff should be given the opportunity to review the NCBP to ensure compliance

14 with Article 11 and Part 182. Any layout alterations may change impacts to threatened and

15 endangered grassland birds.

16 PROPOSED CERTIFICATE CONDITIONS

17 Q. Has the Applicant proposed certificate conditions related to grassland bird

18 species to be included in an Article 10 Certificate ultimately issued by the Siting

19 Board?

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1 A. Yes. The Applicant filed Proposed Certificate Conditions, dated and filed on

2 December 16, 2020, along with the attached Proposed Site Engineering and Environmental

3 Plan (SEEP) Guide, dated December 2020, and filed on December 16, 2020.

4 Q. Do the Applicant’s proposed certificate conditions ensure compliance with

5 Part 182?

6 A. No. A comparison of the Applicant’s Proposed Certificate Conditions

7 and our recommended conditions where there are differences with comments is attached

8 as NYSDEC-DP-4.

9 Q. Why do you recommend your proposed certificate conditions over the

10 Applicant’s proposed certificate conditions?

11 A. The Applicant’s proposed certificate conditions do not ensure the Project complies

12 with Article 11 and Part 182 with respect to threatened and endangered grassland birds

13 because it does not avoid or minimize, to the maximum extent practicable, take of

14 wintering SEOW and NOHA during construction activities in occupied habitat. For

15 instance, if construction must occur in occupied habitat during the wintering season

16 (November 1 through March 31), an environmental monitor familiar with the

17 identification, ecology and behavior of SEOW and NOHA is necessary to minimize the

18 risk of a direct take of these species. An environmental monitor and the ability to

19 temporarily stop work within the area if an individual is detected are crucial for the Project

20 site, which is located wholly in occupied habitat, and has had very frequent and regular

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1 NOHA and SEOW occurrences in every winter season for the last several decades, with

2 dozens of birds documented in some years.

3 The Applicant proposes in its Proposed Certificate Condition 98(a)(i) to follow

4 Proposed Certificate Condition 101(a) if a threatened or endangered grassland bird species

5 is detected in occupied habitat. However, Proposed Certificate Condition 101(a) is a

6 standard certificate condition in all Article 10 projects, even sites without occupied habitat,

7 that relates to discovery of threatened and endangered species observing roosting or

8 breeding behavior, nests, or roosts. Following condition 101(a) will not adequately

9 minimize impacts to these threatened and endangered grassland birds that occur regularly

10 in winter in areas where construction activities are likely to take place.

11 Due to the frequent occurrences of these species in the Project area, and the fact

12 that the entire Project area is within occupied habitat, our proposed language in NYSDEC-

13 DP-4 will properly minimize the potential for a direct take. This is because, in the event of

14 an observed occurrence, the environmental monitor or biologist will require work to stop

15 in the active construction area previously surveyed (i.e., the field) where the threatened or

16 endangered bird was observed, and contact DPS and DEC within 24 hours for further

17 guidance. If work were to continue in that area following an observed occurrence, the

18 chance of direct take is high and not in conformance with Article 11 or Part 182. Not only

19 could continued construction result in death or injury of a bird, but it could also result in

20 harassing, harming, and interference with or impairment of an essential behavior of the

21 species, which includes feeding, sheltering, and overwintering pursuant to Part 182. Since

377

Case No. 17-F-0619 DENONCOUR & PALUMBO

1 SEOW roost during the day, the likelihood of impacting a roosting bird is likely at this

2 Project site.

3 Further, both NOHA and SEOW utilize these areas to forage. If the environmental

4 monitor observes one of these species, it is likely continued activities in the construction

5 area where they were observed will result in a take. Any take – i.e., direct impact to

6 individual threatened or endangered grassland birds – resulting from an inadequate

7 monitoring/stop work condition would also need to be addressed/mitigated in an updated

8 NCBP.

9 Q. Does the Applicant’s proposed SEEP Specifications ensure compliance with

10 Part 182?

11 A. Yes, it does.

12 Q. Do you hold your opinions to a reasonable degree of scientific certainty?

13 A. Yes, we do.

14 Q. Does this conclude your direct testimony on these topics at this time?

15 A. Yes, it does.

Case No.: 17-F-0619 Le Fevre and Kolankowski 378

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

In the Matter of the Application of

Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC Case No.: 17-F-0619

For a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility

Direct Testimony of

Stephen B. Le Fevre, P.G., C.P.G., Senior Managing Hydrogeologist

Thaddeus (Ted) M. Kolankowski, RLA LEED AP Managing Landscape Architect

Application Review for the Town of Coxsackie, the Village of Coxsackie, and the Village of Athens

Barton & Loguidice, D.P.C.

December 18, 2020

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1 Q. Please state your name and business address.

2 A. My name is Stephen B. Le Fevre. The address of my Company’s administrative offices is

3 10 Airline Drive, Suite 200, Albany, NY 12205.

4 Q. Mr. Le Fevre, by whom are you employed and in what capacity?

5 A. I am employed by Barton & Loguidice, D.P.C. (“B&L”), as a Senior Managing

6 Hydrogeologist. B&L is an engineering consulting firm that provides services in several practice

7 areas, including engineering, environmental science, planning and landscape architecture.

8 Q. Please describe your firm’s experience with the review of municipal applications?

9 A. B&L has been providing Environmental Assessment and Review services for more than

10 30 years, supporting large scale infrastructure siting and design projects, undergoing State

11 Environmental Quality Review Act (“SEQRA”) and/or National Environmental Policy Act

12 processes. A number of these projects have progressed beyond the typical SEQRA short/long

13 form review, to Environmental Impact Statement evaluations. We have assessed, permitted and

14 designed some of the most controversial and large-scale land impact projects in Upstate New York.

15 This experience includes both renewable energy projects, and other civil infrastructure projects

16 such as landfills, incinerators and municipal facilities. Presently, we are consulting with several

17 communities as they address the proposed siting and installation of large-scale renewable energy

18 installations.

19 Q. Please describe your educational background and your professional experience?

20 A. I received my Bachelor of Science in Geology (B.S.), 1981, at Hope College, Holland,

21 Michigan, and a Master of Science in Geology (M.S.), 1989, at Baylor University, Waco, Texas.

22 I am a New York State licensed Professional Geologist (PG License No. 001105), and I am also a

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1 licensed Professional Geologist in the Commonwealth of Pennsylvania, and the states of

2 Kentucky, Wisconsin, and Wyoming. I am also a Certified Professional Geologist in accordance

3 with the requirements set forth by the American Institute of Professional Geologists. I am also a

4 member of the National Ground Water Association, the Hudson Mohawk Professional Geologist

5 Association, and the Eastern New York Chapter of the Air & Waste Management Association. My

6 professional specialization is in the area of environmental assessments and permitting. I serve as

7 the Lead Project Manager in the environmental review and assessment of proposed utility scale

8 solar projects on behalf of B&L’s municipal clients. I have led the review of 15 solar projects that

9 range in size from 2 megawatts to 100 megawatts. Five of those solar projects were subject to the

10 Article 10 review process. Most recently, I have participated in the Mohawk Solar and East Point

11 Article 10 Proceedings. For that reason, I am very familiar with the requirements of Article 10.

12 Q. Did anyone else with your firm review the application?

13 A. Yes, I was assisted by Thaddeus (Ted) M. Kolankowski, RLA LEED AP. Ted is a

14 Registered Landscape Architect in New York and Maryland and LEED Accredited Professional.

15 He is currently the Managing Landscape Architect in the B&L Albany office. Ted received his

16 Bachelors Degree in landscape architecture from the State University of New York College of

17 Environmental Science and Forestry at Syracuse University in 1987. He has provided municipal

18 planning and landscape architectural services for communities throughout Upstate NY, with a

19 focus on the Capital District, the Hudson River Valley and the Mohawk River Valley for the past

20 33 years. He has extensive design and community planning experience for projects including

21 transportation enhancements, community development projects, trail projects, canal harbors, and

22 public parks. He has most recently been assisting municipalities with the implementation of

23 sustainable planning and zoning; trails planning and design; waterfront planning and design; and

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1 code compliance. Together, we comprise the B&L Review Team for the Project. Our relevant

2 experience is summarized in greater detail in our resumes, attached hereto as Exhibit SBL-1.

3 Q. What are your responsibilities in reviewing this Application for the Town of

4 Coxsackie, the Village of Coxsackie and the Village of Athens?

5 A. On behalf of the Town of Coxsackie, the Village of Coxsackie, and the Village of Athens

6 (the “Municipalities”), the B&L Review Team has conducted the technical review of the

7 Application of Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, and Hecate Energy

8 Greene County 3 LLC (collectively, the “Applicant” or “Hecate Greene”) to construct a 50-

9 megawatt photovoltaic solar facility (the “Project”) in the Town of Coxsackie for compliance with

10 Article 10 requirements and with specific attention to the Project’s potential impacts on the

11 Municipalities and their residents.

12 Q. What materials and documents has the B&L Review Team reviewed?

13 A. We have reviewed the Application submitted by Hecate Greene to the Siting Board and

14 declared complete on September 2, 2020, and all other supporting materials for the Project, with

15 particular attention to Exhibit 3, Location of Facilities; Exhibit 4, Land Use; Exhibit 21, Geology

16 Seismology and Soils; Exhibit 24, Visual Impacts; Exhibit 25, Effects on Transportation; Exhibit

17 27, Socioeconomic Impacts; Exhibit 29, Site Restoration and Decommissioning; and Exhibit 31,

18 Local Laws and Ordinances. We have also reviewed the Applicant’s responses to the discovery

19 requests made by the parties to this proceeding.

20 Q. Could you briefly describe the Municipalities?

21 A. Yes. The Town of Coxsackie is a historic and rural Town of less than 9,000 residents

22 located along the Hudson River in Greene County. The Town’s colonial history can be traced back

23 to the 1600s and was home to the Mohican Native American Tribe. The Village of Athens and the

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1 Village of Coxsackie both feature historic and picturesque village centers along the Hudson River.

2 Today, the Municipalities have retained their predominantly historic, rural and agricultural

3 character.

4 Q. What are the Municipalities’ goals and priorities in this proceeding?

5 A. The Municipalities’ priorities in this proceeding are based on the desires of local residents

6 as expressed in the goals and objectives enumerated in the Municipalities’ respective

7 comprehensive plans. The Town and Village of Coxsackie Community Plan is included herewith

8 at Exhibit SBL-2. The Town and Village of Athens Comprehensive Plan is included herewith as

9 Exhibit SBL-3. The Coxsackie Community Plan notes: “Coxsackie is recognized for its scenic

10 beauty, open spaces, rural and historic character and small town quality of life. The desire to

11 protect rural character and control major development is the most prevalent theme raised during

12 the comprehensive planning process. While growth is inevitable and desirable, the character of

13 growth is most important.” Exhibit SBL-2, at p. 10. Indeed, a full 90% of Coxsackie residents

14 surveyed for the comprehensive plan indicated that the Municipalities should work to preserve the

15 rural character of the community. Id. at p. 5. The Athens Comprehensive Plan similarly states that

16 “commercial growth . . . [should be] accomplished in a manner which preserves working farms,

17 open spaces, scenic vistas, and small town character.” Exhibit SBL-3, at p. 10. The proposed

18 Project is clearly at odds with this local character and the stated desires of the Municipalities to

19 preserve open space, agricultural lands and rural character. For this reason, among others

20 addressed in this testimony, the Municipalities do not support the Project.

21 Q. What is the B&L Review Team’s overall opinion of the Application?

22 A. We believe that the Application clearly fails to comply with the Town’s local laws and that

23 the Project is improperly sited. Due to this improper siting, it is impossible for the Applicant to

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1 adequately mitigate the substantial agricultural, community character and visual impacts of the

2 Project.

3 Q. Can you provide some background on the Town of Coxsackie’s Local Laws?

4 A. Yes. In addition to the Town’s Zoning Code, in June 2016, the Town of Coxsackie adopted

5 Local Law 1 of 2016, which established a comprehensive Solar Energy Collection Systems Law

6 (the “Solar Law”). The Solar Law established several substantive requirements for the construction

7 and operation of utility-scale solar facilities in the Town. The Solar Law was later amended by

8 Local Law 1 of 2019 to prohibit the siting of a utility scale solar facility in any zoning district other

9 than the Commercial and Industrial Districts. See generally, Town of Coxsackie, General

10 Legislation, Chapter 167, Solar Energy Collection Systems. Local Law 1 of 2019 was then

11 challenged by Friends of Flint Mine Solar and upheld as a valid exercise of the Town’s police

12 power on September 13, 2019 in a Decision and Order of NYS Supreme Court Justice Raymond

13 Elliot. The decision also recognized “that land use control is one of the core powers of local

14 governance.” Friends of Flint Mine Solar v. Town Bd. Of Coxsackie, No. 19-0216 (Sup. Ct. Greene

15 Cty. Sept. 13, 2019). In a letter from the Municipalities’ attorneys to the examiners in this

16 proceeding dated January 14, 2020, the Municipalities requested that the Applicant be made to

17 comply with the Town’s valid Solar Law. The Examiners and parties were also provided a copy

18 of Local Law 1 of 2019 and the September 2019 Decision and Order. See Hecate Energy –

19 Compliance with Local Law, DMM Docket Item No. 121.

20 The Application fails to comply with several aspects of the Town’s Solar Law and Zoning

21 Code. The Applicant also fails to meet its burden for its requested local law waivers.

22 Q. What specific provisions of the Town’s Solar Law does the Application not comply

23 with?

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1 A. The Application does not comply with §§ (C)(4)(i), (l), (n)-(o) of the Town’s Solar Law.

2 These provisions include avoidance of important agricultural resources but primarily relate to the

3 visual impacts of the Project.

4 Solar Law §167 (C)(4)(i) provides that “arrays shall be located on a Solar Lot in such a

5 manner as to avoid, to the maximum extent feasible, soils classified as prime farmland by the U.S.

6 Department of Agriculture, New York State or the Natural Resources Conservation Service.”

7 Solar Law Section § (C)(4)(l) provides that “landscaping, screening and/or earth berming

8 shall be provided to minimize the potential visual impacts associated with the utility-scale solar

9 collector systems and its accessory buildings, structures and/or equipment.”

10 Solar Law § (C)(4)(n) provides that “the utility-scale solar energy collection system,

11 including any associated fencing or proposed off-site infrastructure, shall be located and screened

12 in such a way as to avoid or minimize visual impacts as viewed from: [1] Publicly dedicated parks,

13 roads and highways; and [2] Existing residential dwellings located on contiguous parcels.”

14 Solar Law § (C)(4)(o) provides that “the design, construction, operation and maintenance

15 of any utility-scale solar energy system shall prevent the misdirection and/or reflection of solar

16 rays onto neighboring properties, public roads and public parks in excess of that which already

17 exists.”

18 Q. How does the Application fail to comply with Solar Law §167-6 (C)(4)(i)?

19 A. As set forth above, the Town of Coxsackie’s Solar Law §167-6 (C)(4)(i) requires the

20 Applicant avoid prime farmland to the maximum extent possible. The Municipalities disagree with

21 the Applicant’s determination that the Project complies with this provision. As noted in Exhibit

22 4(s) of the Application, the Project will displace approximately 379 acres of agricultural land for

23 the operational life of the facility. Further, the entire area involved in the Project is enrolled in the

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1 Agricultural District program, and virtually all of the Project site is actively farmed. Figure 4-9.

2 Despite this local law restriction, panels are proposed on the following prime farmland soils:

3 Elmridge very fine sandy loam, 0 to 3 percent slopes, Elmridge very fine sandy loam, 3 to 8 percent

4 slopes, and Shaker very fine sandy loam. Several hundred acres of the Project site are also located

5 on lands designated as Farmland of Statewide Importance.

6 In Municipalities IR-1, the Applicant was asked to explain whether it considered

7 agricultural impacts in selecting the proposed layout of the Project. The Applicant responded that

8 “Yes, the Applicant considered agricultural impacts in selecting the proposed layout. The Facility

9 has been sited on agricultural lands to reduce the level of overall environmental impacts that could

10 result from construction of the Facility. As discussed in the Application and its supplements, the

11 proposed layout avoids or minimizes, to the maximum extent practicable, impacts to wetlands,

12 streams, wildlife, and other environmental resources.” Exhibit SBL-7, p. 10.

13 From this response, it is obvious that the Applicant made no attempt to avoid prime

14 farmland to the maximum extent possible as required by local law. Instead, the Applicant views

15 the permanent conversion of agricultural land as a necessary evil to avoid other environmental

16 impacts. Our opinion is that if the Applicant cannot propose a layout that equally considers and

17 avoids both environmental and agricultural impacts, the proposed siting does not meet the

18 requirements of Article 10 or of the Town of Coxsackie’s Solar Law.

19 Q. Why is compliance with this restriction in the Town’s Solar Law important for the

20 protection of farming?

21 A. The loss of farmland is a subject of federal, State and local concern and one that the

22 Municipalities have considered in their Comprehensive Plan and the Solar Law. Prime farmland

23 is recognized by all levels of government as lands that have the best combination of physical and

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1 chemical characteristics for producing farm products and that is available for agricultural uses.

2 The loss of prime farmland to other land uses not only threatens farming as a critical source of

3 food and part of our economy, but it also puts pressure on lands less suitable for farming, which

4 generally are more erodible, subject to drought, less productive and not easily cultivated.

5 Improperly sited, solar facilities have the potential to have a greater adverse impact on farmland

6 than necessary if prime farmland is not avoided. This problem may occur equally to lands on

7 individual farms that are actively farmed, since those lands are typically the best lands available

8 on a given parcel for farming.

9 Q. How could the Applicant comply with these requirements of the Solar Law?

10 A. Similar to a wetlands project, for prime farmland the Applicant should be required to

11 present and consider reasonable alternatives that avoid Project impacts to prime farmland, and to

12 analyze and explain why certain impacts to prime farmland cannot feasibly be avoided. The

13 operating assumption should be that all Project impacts to prime farmland will be avoided once

14 such a showing is made. For this Project the proposed siting is improper because of the significant

15 impacts to actively farmed agricultural lands that will occur and because the record was not

16 developed to show why those impacts could not be avoided, if, indeed, that is the case.

17 Q. How does the Application fail to comply with Solar Law § 167-6 (C)(4)(l), (n)?

18 A. Solar Law § (C)(4)(l), (n) relate to mitigation of the visual impacts of the Project. Sub-

19 section (C)(4)(l) is a general requirement that landscaping or other screening be provided to

20 minimize visual impacts. Subsection (C)(4)(n) requires that “the utility-scale solar energy

21 collection system, including any associated fencing or proposed off-site infrastructure, shall be

22 located and screened in such a way as to avoid or minimize visual impacts as viewed from: (1)

23 Publicly dedicated parks, roads and highways; and (2) Existing residential dwellings located on

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1 contiguous parcels.” With these requirements in mind, we completed a thorough review of the

2 Application as well certain other documents provided in response to Municipalities IR-2, including

3 GIS shape files and 3D modeling files in order to determine the location of visual impacts.

4 Specifically, we initially examined the viewshed analysis map to identify the residences that would

5 potentially have a view of the solar arrays. We then examined photographs contained in the

6 Historic Resources Survey Report that happened to illustrate the view that several of the residences

7 would have of the solar arrays. As documented in the caption provided for each photograph,

8 several of the residences will have either a totally clear or partially obstructed view of the solar

9 panel arrays. See, e.g., Captions to Photographs Nos. 8, 13, and 26, Historic Resources Survey

10 Report. We were also able to determine based on the examination of the viewshed analysis map

11 the roadways that would enable passengers in vehicles to have an unobstructed view of the solar

12 arrays. The Applicant incorrectly claims, however, that the Application complies with these

13 provisions of the Solar Law. See, e.g., Exhibit SBL-7, p. 10. In our opinion, the Application does

14 not sufficiently minimize visual impacts of the Project from local roadways and nearby residences,

15 and therefore, does not comply with Solar Law. Based on B&L’s review, the proposed Project will

16 result in significant visual impacts.

17 The extensive visibility of this Project is plainly evident from the Applicant’s Visual

18 Impact Assessment. The viewshed map predicts extensive views of the Project from up to five

19 miles away. Ex. 24, Composite Map. Despite this, only seven of the Applicant’s thirty-seven

20 selected representative viewpoints have any predicted views of the Project. Ex. 24, Table 3.

21 Further, the Applicant prepared visual simulations for only six of those representative viewpoints.

22 Id. at Appx. G. For several residences, views of open farmland and the Catskill Mountains will be

23 replaced with views of solar arrays. Id. at Table 3. Notably, the Applicant failed to request any

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1 input regarding the selection of viewpoints for simulations from the Town of Coxsackie

2 Supervisor, The Village of Athens Mayor, or the Village of Coxsackie Mayor. Exhibit SBL-7, at

3 p. 12. Additionally, the Project may be visible from: (1) eight properties on or eligible for inclusion

4 in the National or State Register of Historic Places; (2) four designated scenic roadways; (3) two

5 wildlife management areas; (4) 23 Scenic Areas of Statewide Significance, and (5) seven major

6 transportation corridors. Ex. 24 Appx. B. The Applicant has simply not provided a sufficient record

7 for the evaluation of the visual impacts of the Project nor proposed adequate visual mitigation for

8 those impacts.

9 Based on these extensive visual impacts alone, the proposed Project siting is improper.

10 The B&L Review Team has also identified several residencies of particular concern that are

11 predicted to have significant or unobstructed views of the Project. A map showing these residences

12 is included herewith as Exhibit SBL-4. In Municipalities IR-4, we requested that the Applicant

13 provide visual simulations for these six residence groupings. The Applicant refused to provide

14 additional simulations, and instead pointed to similar representative views in other unrelated

15 locations. See Exhibit SBL-9. For several of those similar representative views, the Application

16 calls for landscape screening, suggesting that landscape screening is in fact necessary to mitigate

17 views for the identified residences. See, e.g., Ex. 24, Appx. G.

18 Based on B&L’s review of the areas of predicted visibility that are shown on the Viewshed

19 Analysis maps as compared to the Landscaping Plan, B&L has prepared a map indicating the areas

20 where additional landscape screening is necessary to mitigate the visual impacts of the Project. A

21 copy of this map is filed herewith as Exhibit SBL-5. We have also provided as an example a

22 landscaping plan from the Mohawk Solar Application and Article 10 Proceeding that, in our

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1 opinion, would more closely comply with the Town’s Solar Law at Exhibit SBL-6. Without this

2 additional screening, the Application does not comply with Solar Law §§ 167-6(C)(4)(l)-(n).

3 Q. How does the Application fail to comply with Solar Law § 167-6 (C)(4)(o)?

4 A. Solar Law § 167-6 (C)(4)(o) requires the Applicant to “prevent the misdirection and/or

5 reflection of solar rays onto neighboring properties, public roads and public parks in excess of that

6 which already exists.” Again, the Applicant claims to comply with this provision. Exhibit SBL-7

7 at p. 27. The Applicant’s claims are, however, inconsistent with the contents of its Application.

8 Exhibit 24(a)(9) states “based on the PV panel design and construction, as well as operation of the

9 tracker system, glare resulting from sunlight reflected by the PV panels would occur to only a

10 limited extent within the visual study area. Although the Facility may represent a potential source

11 of additional glare in the Visual Study Area, introduced glare will not be sufficient to adversely

12 affect views in the area or create an annoyance for viewers.” This glare standard the Applicant

13 applies in its Application is inconsistent with the standard of mitigation required by the Solar Law.

14 Q. Are there any other local laws, outside of the Solar Law, that the Applicant does not

15 comply with?

16 A. Yes. The application also fails to comply with several provisions of the Town Code related

17 to landscaping. Specifically, the Application does not comply with Town Code §201-52(D)(3) and

18 §201-52(F).

19 Q. How does the Application fail to comply with Town Code § 201-52(D)(3)?

20 A. Town Code § 201-52(D)(3) provides that “shrubs and ground cover should be planted so

21 that they attain coverage of at least 75% of the planting area within four years.” As noted in

22 Municipalities IR-1, it is impossible to determine whether the Applicant’s proposed landscaping

23 plan is adequate to achieve at least 75% coverage because the plan does not include the distance

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1 between plantings. See Exhibit SBL-7, at p. 16; see also Ex. 11, Part 2, GCSFA10-C-401. In fact,

2 the landscaping plan includes no mockup of the Applicant’s proposed plant groupings to

3 demonstrate what the proposed landscaping will look like. For this reason, it is impossible to

4 determine whether the plantings will attain 75% coverage within four years as required by the

5 Town Code.

6 Q. How does the Application fail to comply with Town Code § 201-52(F)?

7 A. Town Code § 201-52(F) provides that “the applicant shall utilize plants which are adaptable

8 to local climatic conditions. The use of drought tolerant species is recommended to reduce or

9 eliminate the need for irrigation. It is also recommended that any vegetation retained or planted

10 consist of noninvasive plant species to reduce future maintenance requirements and encroachment

11 on other property. An invasive plant species is a nonnative plant species that escapes into the wild

12 and displaces native vegetation.” This section also includes specific species recommendations. The

13 Applicant’s currently proposed landscaping species do not comply with this provision because the

14 species are either: (1) non-native and/or invasive, (2) not suitable for the local USDA climate zone,

15 or (3) prone to deer grazing. For these reasons, the Municipalities recommend that the Applicant’s

16 species list be revised to provide for the following plants: White Spruce, Picea glauca; Eastern

17 White Pine, Pinus strobus; European Hornbeam, Carpinus betulus 'Fastigiata'; American

18 Serviceberry, Amelanchier canadensis (Deciduous); Mountain Laurel, Kalmia latifolia; and

19 Eastern Redcedar, Juniperis caroliniana.

20 Q. Do you have any issues with the local law waivers requested by the Applicant?

21 Yes. The Municipalities object to the Applicant’s requested waivers for zoning district

22 restrictions for utility-scale solar projects and lot coverage restrictions found in the Solar Law. As

23 we mentioned earlier, utility scale solar projects are restricted to the Town’s Commercial and

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1 Industrial Districts. Solar Law § 167-6(B)(1)-(2). This zoning restriction was challenged and

2 upheld in NYS Supreme Court as a valid exercise of the Town’s police powers. Friends of Flint

3 Mine Solar v. Town Bd. Of Coxsackie, No. 19-0216 (Sup. Ct. Greene Cty. Sept. 13, 2019). The

4 purpose of the Solar Law is to protect the Town’s agricultural land and rural landscapes in

5 furtherance of its Community Plan. See Solar Law § 167-6(A)(1); see also Exhibit SBL-2. Despite

6 these valid zoning restrictions, the Project is proposed in the Town’s Rural Agricultural 2 Zoning

7 District. Exhibit SBL-7, at p. 36.

8 We cannot stress enough the importance of this zoning restriction to the Municipalities. A

9 municipality’s authority to adopt zoning controls is its most powerful tool for shaping its

10 community. The Town of Coxsackie has carefully considered the appropriateness of utility scale

11 solar development and has determined that such development is appropriate only in the Town’s

12 commercial and industrial corridors. Conversely, the Town’s use restriction reflects a legislative

13 determination that utility scale solar is wholly inappropriate in areas in the Town dedicated to

14 residential and agricultural uses. The Applicant argues that this restriction is unreasonably

15 burdensome in light of existing technology because there is insufficient land to construct the

16 Project in the Industrial and Commercial Districts and the Applicant does not control any land in

17 those districts. The Applicant goes on to claim that a waiver of the Solar Law would have an

18 “insignificant potential impacts on the community.” Ex. 31, Part 1.

19 The Applicant has clearly misunderstood the importance of this use restriction to the Town

20 and belies the substantial agricultural and visual impacts of the Project as discussed in detail above.

21 A waiver of a fundamental component of the Town’s Zoning Code is clearly not insignificant nor

22 appropriate here. Nor can a core use restriction intended to protect local residents from

23 inappropriate development be considered “unreasonably burdensome.” 16 NYCRR §

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1 1001.31.(e)(1). Additionally, the fact that there is insufficient land in the Industrial and

2 Commercial Districts does not justify siting the Project in a district in which it is a prohibited use.

3 Based on this zoning restriction alone, the waiver request should be denied, and the Certificate

4 should not be issued.

5 Q. Do you have any other issues with the local law waivers requested by the Applicant?

6 A. Yes, the Applicant has requested a waiver of Solar Law section 6(B)(5). This section

7 provides that a utility-scale solar facility may occupy up to 20% of the area of the solar lot. Solar

8 lot is defined as “one or more contiguous parcels under direct control (ownership or lease) of a

9 common owner.” Solar Law § 167-3. By the Applicant’s own calculations, it does not comply with

10 this Solar Law. Exhibit SBL-7, at p. 33. This law is important to the Municipalities because it is

11 intended to preserve open space and protect agricultural lands. The Applicant has failed to provide

12 any evidence that its requested waiver is the minimum necessary or that the adverse agricultural

13 and open space impacts are mitigated to the maximum extent practicable. For that reason, a waiver

14 of the Solar Law is inappropriate.

15 Q. Do you have any issues with enforcement of the New York State Uniform Fire

16 Prevention and Building Code?

17 A. In our opinion the Town of Coxsackie Building Inspector/Code Enforcement Officer is

18 the appropriate person to enforce the Uniform Code. The Applicant is in agreement with this

19 position and requests in the Application that the Siting Board expressly authorize the Town of

20 Coxsackie to exercise its authority to enforce the Uniform Code, if a Certificate is issued for the

21 Project. Ex. 31 at 2.

22 Q. Do you have any issues with road use and transportation impacts?

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1 A. In the event that a Certificate is issued for the Project, it is our understanding that the

2 Applicant has agreed to enter into a Road Use Agreement with the Municipalities and County to

3 ensure that local roads are restored to pre-construction condition. While we believe that the

4 Applicant and the Municipalities may be able to negotiate a Road Use Agreement and Easements

5 acceptable to all parties, it is our opinion that such an agreement should be negotiated during the

6 course of these proceedings and be in place well before the commencement of any construction to

7 protect the Municipalities’ interest in ensuring that the costs of road repair are covered by the

8 Applicant.

9 Q. Do you have anything else you would like to add about the application?

10 A. Yes, it is our understanding that the Applicant has made no attempt to negotiate a Payment

11 in Lieu of Taxes Agreement with the Municipalities. In Exhibit 27 of the Application, the

12 Applicant estimates that its total PILOT payment over the 35-year life of the Facility will be $4.5

13 million. This is based on an approximately $2,571 per megawatt PILOT payment. This is a gross

14 underestimate and inconsistent with PILOTs proposed in other Article 10 proceedings. In our

15 opinion, negotiations regarding a PILOT agreement should be concluded during this proceeding

16 to protect the interests of the Municipalities and their residents. These PILOT payments are

17 effectively the only local benefit provided by the Project. The Project will create virtually zero

18 permanent local jobs. In exchange, if a Certificate is issued for the Project, local residents will

19 have their views and the community character damaged for at least the next forty years.

20 Q. Do you have anything else you would like to add about the Application?

21 A. Yes. The review of the Applicant’s proposed Project coincides with the review of Case No.

22 18-F-0087, the Application of Flint Mine Solar, LLC (“Flint Mine”) for a 100-megawatt solar

23 facility. Together these facilities represent over 9% of land in the Town of Coxsackie. Despite the

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1 fact that nearly 10% of land in the Town is under option by solar developers, the Applicant has not

2 evaluated the way these projects will cumulatively alter the rural, agricultural, and historic

3 character of the Municipalities. Unfortunately, the Municipalities lack the funds and the time to

4 conduct such a cumulative impact study on their own. Failure to require the Applicant to assess

5 cumulative environmental impacts under these circumstances is clearly not in compliance with the

6 substantive requirements of the New York State Environmental Quality Review Act, which

7 substantive (but not procedural) requirements apply to this Application. These two applications

8 are inextricably bound together by the Town’s Comprehensive Plan and Solar Law and their

9 cumulative impacts on the Town’s legitimate planning goals must accordingly be evaluated

10 together. Through its Comprehensive Plan and Solar Law, the Town has articulated goals of

11 protecting its agricultural and open space resources. It has specifically prohibited utility scale solar

12 facilities in agricultural areas, where both projects are proposed to be sited.

13 In both Flint Mine’s application and here, the applicants have asserted that the Town’s

14 local law siting prohibition, which implements its Comprehensive Plan, should be waived as

15 unreasonably burdensome. We believe that the Comprehensive Plan, together with the prohibition

16 provided in the Solar Law, comprise a “larger plan” by the Town for the control of development

17 of such uses in its jurisdiction that triggers the mandatory need for analysis of the cumulative

18 impacts of the projects under SEQRA. See Long Island Pine Barrens Soc., Inc. v. Planning Bd.

19 of Town of Brookhaven, 80 N.Y.2d 500, 513 (1992) (“Rather, in some circumstances, the

20 relatedness element may be satisfied if ‘the project at issue is part of a larger plan designed to

21 resolve conflicting specific environmental concerns in a subsection of a municipality with special

22 environmental significance’”) (citing Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d

23 193, 206 (1987)). Here, further, because both projects are related by their violation of local law

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1 requirements prohibiting utility scale solar facilities in agricultural areas, an analysis of the

2 cumulative impacts of the two projects is required for any consideration of whether, with respect

3 to both the Applicant’s and Flint Mine’s requests not to apply the Town’s prohibition because it is

4 unreasonably burdensome, “the adverse impacts of granting the request are mitigated to the

5 maximum extent practicable.” See, 16 NYCRR §1001.31(h).

6 Collectively the Hecate and Flint Mine projects will alter the landscape of these rural

7 Municipalities for at least forty years. An area once known for its scenic beauty will be

8 predominately characterized by two utility scale solar facilities. Under most circumstances,

9 Municipal Home Rule Law allows a municipality to enforce land use controls in order to stop this

10 exact type of inappropriate development. In the case of Article 10, the Municipalities are forced to

11 the sidelines while their local laws and residents’ interests are given less weight than the solar

12 company’s economic interests. In our opinion, the Applicant and the Siting Board must examine

13 the cumulative impacts of these two projects to 9 % of the land in the Town under both SEQRA

14 and Article 10 and the Board needs a sufficient record to undertake such an examination of

15 cumulative impacts ; one that has not been provided in this Article 10 Application.

16 Q. Does this conclude your testimony?

17 A. Yes.

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NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

In the Matter of the Application of

Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC Case No.: 17-F-0619

For a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility

Rebuttal Testimony of

Stephen B. Le Fevre, P.G., C.P.G., Senior Managing Hydrogeologist

Thaddeus M. Kolankowski, RLA LEED AP Managing Landscape Architect

Application Review for the Town of Coxsackie, the Village of Coxsackie, and the Village of Athens

Barton & Loguidice, D.P.C.

January 15, 2020

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Q. Please state your name and business address.

A. My name is Stephen B. Le Fevre. The address of my company’s administrative offices is

10 Airline Drive, Suite 200, Albany, NY 12205.

Q. Are you the same Stephen B. LeFevre who previously submitted prepared direct testimony in this Proceeding?

A. Yes, I am.

Q. Are you joined in this rebuttal testimony by Thaddeus M. Kolankowski, RLA LEED

AP, who previously joined in your direct testimony in this Proceeding?

A. Yes. Together, we comprise the B&L Review Team in this Proceeding and provided direct testimony on December 18, 2020 (“B&L Testimony”). The B&L Review Team’s qualifications are discussed in the B&L Testimony.

Q. What materials and documents has the B&L Review Team reviewed?

A. In addition to the documents described in our B&L Testimony, we have also reviewed the

Pre-Filed Direct Testimony submitted by the parties in this Proceeding.

Q. What party’s direct testimony do you propose to rebut?

A. The December 18, 2020 testimony of NYS Department of Public Service (the “DPS

Testimony”).

Q. Please identify a specific portion of DPS Testimony that you propose to rebut.

A. Page 65, Line 3 through Page 66, Line 9.

Q. What was the question posed and how did DPS respond?

A. The identified testimony addresses the Applicant’s requested local law waivers of the

Town of Coxsackie’s zoning district restrictions for utility scale solar (Code §§ 167-6(B)(1), (2)), and lot coverage restrictions (Code § 167-6(C)(4)(q)). The DPS Testimony was provided in

4844-5356-7446, v. 2 398 response to the question: “Does the Panel recommend these provisions be waived?” DPS Staff responded: “As proposed and revised, the Facilities would conflict with these provisions, and issuance of a Certificate would need to include the requested waivers. The proposed Settlement

Package includes recommended certificate conditions that, if implemented, would avoid, minimize or mitigate impacts due to siting, construction and operation of the Facilities to the extent practicable. Without granting the waivers, the Facilities likely cannot be constructed and operated.”

Q. What are your concerns regarding this portion of the DPS Testimony?

A. First, it bears repeating that the proposed Facility is not a permitted use in the zoning district in which it is proposed. It should also be noted that the DPS panel does not explicitly answer whether the identified local law provisions should be waived. Nor does DPS make any findings that the waivers are reasonable or supported by the record. The DPS panel fails to address the

Town of Coxsackie’s use restrictions in any meaningful way. While DPS concludes that the certificate conditions if implemented, “would avoid, minimize or mitigate impacts due to siting, construction and operation of the Facilities to the extent practicable,” this statement is without merit. The certificate conditions do not and cannot mitigate for the impacts caused by allowing the

Project in a zoning district the Town has determined to be inappropriate for utility scale solar.

Q. What are your concerns regarding the DPS findings on Solar Law § 167-6(C)(4)(q)?

A. The purpose of the lot coverage restrictions contained in Solar Law § 167-6(C)(4)(q) is to preserve open space and protect agricultural lands. As discussed on pages seven to nine of the

B&L Direct Testimony, the Applicant has made no effort to comply with this restriction or to consider alternatives that avoid the agricultural lands. Therefore, the DPS Panel’s determination that the impacts of a waiver of this local law have been mitigated must be rejected.

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As described at length in the Direct Testimony of Jason Mulford on behalf of the

Department of Agriculture and Markets, the layout of the Project could have been revised to avoid losses to agricultural lands (Direct Testimony of Jason Mulford, 13:21-15:7). The Applicant calculates that soils mapped as Prime Farmland soils within the Facility Area total approximately

118.0 acres. The Applicant also calculates that soils mapped as Farmland of Statewide Importance within the Facility Area total approximately 504.1 acres (Exhibit SBL-10 at 1). In total the project will result in the permanent conversion of over 600 acres of active crop land. For that reason, the

DPS panel’s conclusion that the agricultural impacts of this local law waiver have been mitigated by the proposed certificate conditions is unfounded.

Q. Is there another portion of DPS Testimony that you propose to rebut?

A. Yes. Page 64, Lines 6 to 14.

Q. What was the question posed and how did DPS respond?

A. The DPS Testimony was provided in response to the question: “How will effects on visual aspects be avoided or minimized?” The DPS panel responds that: “Project aspects such as lighting controls, vegetation clearing limitations, and the use of landscape screen plantings and maintenance practices, as required by the proposed Certificate Conditions, will effectively avoid or minimize significant effects on visual resources, including the SASS areas.”

Q. What are your concerns regarding this portion of the DPS Testimony?

A. In light of the DPS Panel’s conclusion that the Applicant’s proposed landscape screening is adequate to screen views of the Facility, we feel that it is necessary to provide additional information regarding each of the locations identified in SBL-4 (Residences with Predicted

Unobstructed or Significant Views of the Facility) and SBL-5 (Areas Requiring Additional

Landscape Screening).

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Location 1 shown on Exhibit SBL-4 corresponds directly with Photograph Number 26 of the Applicant’s Historic Resources Survey Report (the “Historic Survey”). While the Applicant claims that “views from this location would be screened by existing vegetation on the residential property as well as vegetation in the Facility Area that will remain” (Exhibit SBL-9 at 2), this statement is directly contradicted by Photograph 26 and the corresponding caption which states that the “Facility will likely be visible in the distance from the residence given its higher elevation.

The Facility area is located approximately 0.15 mile to the east, beyond the fields in the foreground, on the other side of existing railroad tracks.”

Regarding Location 2 shown on Exhibit SBL-4, the Applicant has claimed that “vegetation in the Facility Area that will remain will screen some views from this location.” (Exhibit SBL-9, emphasis added at 2). Based on B&L’s review, the views shown in Photograph No. 26 of the

Historic Survey are representative for this location. Location 2 will have views of the Facility to the east on the other side of the existing railroad tracks.

Location 3 shown on Exhibit SBL-4 directly corresponds with Photograph No. 13 of the

Historic Survey. The Applicant’s claim that “views to the north and northwest from this property will likely be screened by existing trees” (Exhibit SBL-9 at 2), is contradicted by the caption to

Photograph No. 13 which states that the “Facility will be visible” and “solar panels will be located immediately west of the property.”

Regarding Location 4 shown on Exhibit SBL-4, based on B&L’s review, the views depicted in Photograph 13 of the Historic Survey are substantially similar to those at Location 4 and the Facility will be visible. Notably, the Applicant points to VIA simulations 1 and 6 as providing “representative views at a similar distance from the Facility as this location” (Exhibit

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SBL-9 at 2). However, the Applicant has provided for landscape screening for the views depicted in VIA simulations 1 and 6, suggesting that screening is necessary in this location as well.

Location 5 shown on Exhibit SBL-4 directly corresponds with Photograph 8 of the Historic

Survey. As noted in the caption for Photograph 8, “the Facility will be visible” and “solar panels will be located immediately east of the property.” Despite this predicted visibility, no landscape screening is proposed in this location.

Location 6 shown on Exhibit SBL-4 directly corresponds with Photograph 5 of the Historic

Survey. The caption for Photograph 5 states that the Facility will be visible from this location.

Additionally, while the views appear to be screened in this location when viewing a satellite map, the existing vegetation and tree branches are above eye level and provide little to no screening.

Location 7 shown on Exhibit SBL-4 directly corresponds with Photograph Number 2 of the Historic Survey. As shown in the Photograph 2, the Facility will be visible from this location.

Additionally, while the views appear to be screened at this location when viewing a satellite map, the existing vegetation and tree branches are above eye level and provide little to no screening.

For these reasons, the Applicant must provide for additional landscape screening in the locations identified in the Map identified as Exhibit SBL-5. The relevant photographs from the

Historic Survey are shown in Exhibit SBL-11.

Q. Does this conclude your rebuttal testimony?

A. Yes.

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NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT ______In the Matter of the Application of

Hecate Energy Greene 1 LLC, Case No.: 17-F-0619 Hecate Energy Greene 2 LLC, Hecate Energy Greene County 3 LLC

for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility Located in the Town of Coxsackie, Greene County. ______

DIRECT TESTIMONY OF GEOFFREY M. GOLL, P.E. PRESIDENT, PRINCIPAL ENGINEER PRINCETON HYDRO, LLC AND PRINCETON HYDRO ENGINEERING, PC December 18, 2020

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1 Q: Please state your name, employer, and business address.

2 A: Geoffrey M. Goll, P.E., Princeton Hydro, LLC and Princeton Hydro Engineering, PC,

3 1108 Old York Road, Ringoes, NJ 08551

4 Q: Did you provide a Curriculum Vitae as part of this direct testimony?

5 A: Yes, it is identified as Exhibit GG-DT-1.

6 Q: What is your position at Princeton Hydro, LLC and Princeton Hydro Engineering,

7 PC?

8 A: I am the President and a founding partner of Princeton Hydro, LLC and the sole owner of

9 Princeton Hydro Engineering, PC. I am a Principal and as a Professional Engineer of

10 both firms.

11 Q: Please explain the firm of Princeton Hydro, LLC

12 A: Princeton Hydro, LLC is a NJ Limited Liability Company, providing scientific and

13 engineering services, specializing in water resources, natural resources, geotechnical

14 engineering, and regulatory compliance in the areas of land use regulations and water

15 resources.

16 Q: Please explain the firm of Princeton Hydro Engineering, PC

17 A: Princeton Hydro Engineering, PC is a NJ Professional Corporation, solely owned by me.

18 The firm performs the same functions as Princeton Hydro, LLC, and subcontracts

19 Princeton Hydro, LLC when performing professional engineering in New York State.

20 Q: What is the relationship between Princeton Hydro, LLC and Princeton Hydro

21 Engineering, PC.

22 A: Several states, which includes New York State, requires that the majority ownership of a

23 corporation are licensed professional engineers. As Princeton Hydro, LLC is 50%

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24 owned by a professional engineer, not a majority as prescribed by the NY State Board of

25 Professional Engineers, Princeton Hydro Engineering, PC, owned 100% by a

26 professional engineer conducts engineering design and subcontracts Princeton Hydro,

27 LLC for labor and other engineering and scientific expertise.

28 Q: Please describe your educational background.

29 A: I hold a Bachelor of Science in Civil Engineering from Rutgers University, College of

30 Engineering, and a Master of Engineering from the University of Wisconsin, Madison.

31 Q: Please describe your professional experience.

32 A: Following graduation from Rutgers University in 1990, I started my career at Goodkind

33 & O’Dea, Inc (G&O), a civil engineering firm now a subsidiary of Dewberry, based in

34 Rutherford, NJ. I was employed as a staff engineer in the bridge engineering department

35 of G&O from 1990 to 1992, wherein I performed structural engineering calculations,

36 provided drafting in computer-aided design, and reviewed shop drawings for

37 construction. Subsequently, I was employed by Melick Tully & Associates, Inc., a

38 geotechnical engineering firm, recently purchased by GZA, from 1992 through 1994. At

39 Melick Tully, I performed subsurface investigations and laboratory analysis to determine

40 geotechnical engineering parameters of soil and rock for the purpose of design structure

41 foundations, ponds and detention basins, and earthwork means and methods. In 1995, I

42 was employed by Coastal Environmental Services, Inc, an environmental consulting firm,

43 specializing in water and natural resources. In 1998, along with Stephen Souza, Ph.D.

44 and Mark Gallagher, we founded Princeton Hydro, LLC, the company with which I am

45 employed today, the expertise of which is described in my previous answer.

46 Q: What licenses do you hold?

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47 A: I am a licensed Professional Engineer in the states of New York, New Jersey,

48 Connecticut, Maryland, Massachusetts, Michigan, New Jersey, Pennsylvania, Vermont,

49 Virginia, and Washington DC.

50 Q: Please describe your specific expertise, and how it relates to the proposed solar

51 energy facility.

52 A: As a result of my educational background and over 30 years of experience in the field, I

53 have become an expert in hydrology, stormwater management, floodplain management,

54 surface water quality, and geotechnical engineering. Over the course of my career, I

55 have provided engineering design and consulting for a myriad of stormwater

56 management facilities and stormwater pollution prevention plans, watershed modeling,

57 lake ecology and restoration, site and foundation construction means and methods, soil

58 erosion and sediment control plans, stream restoration, wetlands restoration and

59 mitigation design and construction, and regulatory compliance. All these subject areas

60 are involved with the planning, engineering, and potential and probable impacts

61 associated with solar energy facility construction. If not constructed using best

62 management practices in the planning, engineering, and construction of such solar energy

63 facilities, the surface water runoff can dramatically increase, subsequently increasing

64 flooding downhill from the project, as well as increasing soil erosion and sediment

65 discharges to receiving waterbodies, such as Sleepy Hollow Lake.

66 Q: Do you have specific experience with the design and review of solar energy

67 generation facilities?

68 A: Yes, I have provided engineering design and consulting to solar energy development

69 clients, specifically in the areas of stormwater management, regulatory compliance, and

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70 geotechnical engineering. I have also provided reviews, as a municipal consulting

71 engineer and for third party or intervenor reviews and testimony.

72 Q: What solar facilities have you provided stormwater or geotechnical engineering

73 design?

74 A: Oak Solar, a 10 MW fixed panel solar in southern NJ, owned and operated, at the time by

75 Lincoln Renewable Energy, for which my firm provided geotechnical engineering

76 investigations. Bloomberg headquarters, a 1.8 MW fixed panel solar project in central

77 NJ for which we provided stormwater management design and regulatory permitting.

78 Q: What solar facilities have you reviewed on behalf of governmental entities or third

79 parties/intervenors?

80 A: I have reviewed several facilities, which includes, but are not limited to the Six Flags,

81 Great Adventure 23.5 MW facility in central NJ, a proposed 150 MW project, called

82 Nichomus Run Solar in southern, NJ, and the Black Solar Farm, a 10 MW facility,

83 located in central NJ.

84 Q: Have you previously served as an expert witness on a project before the New York

85 State Public Service Commission or Board on Electric Generation Siting and the

86 Environment?

87 A: I am currently providing expert witness services for the Flint Mine Solar project, Case

88 No. 18-F-0087, but I have not appeared as an expert witness before the NY State Public

89 Service Commission or the Siting Board prior to these two applications.

90 Q: What is the purpose and scope of your testimony in this proceeding?

91 A: The purpose of my testimony is to certify several letter reports for entry into the record

92 on behalf of the Sleepy Hollow Lake Association of Property Owners (APO) regarding

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93 the impacts of this project on the water quality of Sleepy Hollow Lake, the sole potable

94 water source and recreational asset to the Association. These letter reports include a

95 review letter dated, June 10, 2020 (Exhibit GG-DT-2), a response to the applicant’s

96 consultant’s comment letter, Tetra Tech, dated September 23, 2020 (Exhibit GG-DT-3),

97 and a comment letter on the Certificate Conditions and Site Engineering and

98 Environmental Plans (SEEP), dated December 18, 2020 (Exhibit GG-DT-4). These

99 exhibits are attached to my testimony and incorporated by reference. This testimony

100 also further describes the APO’s concerns for the same. My testimony and reviews focus

101 on the effects of the proposed project during and after construction on stormwater runoff

102 and soil erosion and sediment discharge to Sleepy Hollow Lake, and assess whether the

103 project, as proposed will have a negative effect and cause irreparable and financial

104 damages to the Association because of degraded water quality and increased water

105 treatment and lake management costs.

106 Q: What information did your utilized to form the basis of your testimony and reports?

107 A: My testimony and reports are based on the Project application materials submitted on

108 December 27, 2019 and subsequent filings of correspondence and reports included on the

109 Siting Board case website, as well as non-settlement, non-confidential video conference

110 calls with the Hecate Solar developer and professionals on January 24, 2019 and March

111 20, 2020. In addition to the video conference calls, I and my colleague and

112 environmental scientist, Paul Cooper, a CV of which is included and attached as Exhibit

113 GG-DT-5, received a response from Hecate’s consultant, Tetra Tech, dated August 31,

114 2020 to our June 10, 2020 comment letter. We subsequently prepared a follow up letter,

115 dated September 23, 2020 (Exhibit GG-DT-3), addressed to our client, and previously

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116 submitted as part of the record. As stated in our reports and in discussions with the

117 Applicant, the APO are primarily concerned with negative impacts associated with

118 stormwater runoff and associated non-point and point source pollution that would have a

119 high probability of negatively impacting Sleepy Hollow Lake if the project is not

120 implemented in an appropriate manner to safeguard the Association’s sole source of

121 potable water.

122 Q: Tell us about Sleepy Hollow Lake and its current condition and regulatory

123 designations.

124 A: As stated in our reports, Sleepy Hollow Lake is a 325-acre lake and reservoir, which is

125 the centerpiece of the community surrounding the lake, but more importantly, is the sole

126 drinking water source for the community. The water supply, regulated under 10

127 NYCRR Part 5, includes a treatment plant that supplies approximately 825 residential

128 connections and produces about 40 million gallons of water annually. The APO has

129 been a diligent steward of this water supply. For example, the APO runs and manages

130 its own wastewater treatment plan that diverts all sanitary waste from the Sleepy Hollow

131 Lake watershed. The APO’s management of the community wastewater also eliminates

132 all septic systems in the community to protect the Lake’s water quality. Additionally,

133 they have developed lake management and sedimentation plans, they have stabilized the

134 shorelines with riprap where needed, they inspect, maintain and perform repairs on the

135 dam, and complete annual monitoring of the water quality to ensure the protection of

136 their drinking water supply. Sleepy Hollow Lake is designated as a Class A Freshwater,

137 which has designated best uses for as a drinking water supply, source for food processing,

138 primary and secondary contract recreation, and fishing; and the lake shall support various

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139 aquatic lifeforms. It is also important to note that all classes of freshwater are offered

140 protections from discharges of sewage, industrial waste, or other wastes that could cause

141 use impairments. “Other wastes” could include increased stormwater runoff and

142 sediment from improperly designed and constructed land uses, such as a large-scale solar

143 energy generation facility.

144 In addition to the above-described designation of the Lake, while Sleepy Hollow Lake is

145 a Class A water and a potable water supply reservoir, it is also included on the New York

146 State Department of Environmental Conservation (NYSDEC) 303(d) List of Impaired

147 Waters Requiring a TMDL/Other Strategy. It is specifically listed for silt/sedimentation,

148 and streambank erosion resulting from increased stormwater runoff due to past

149 agricultural and other land use practices is considered the probable source of impairment.

150 This demonstrates not only the potential impacts, but the current sensitivity within the

151 watershed to erosion, sedimentation, lack of stormwater management, and excessive

152 nutrient loading, such as an improperly sited, designed, and constructed solar farm energy

153 generation facility.

154 Q: What is your specific concern regarding impacts of this Project to Sleepy Hollow

155 Lake?

156 A: Watershed pollutant loading issues, related to watershed soil characteristics, land cover,

157 and land use practices, currently manifest as various environmental problems in Sleepy

158 Hollow Lake. Some of these impairments include sedimentation and delta-formation at

159 the mouths of inlets, especially Murderers Creek, the stream and primary surface water

160 tributary to the Lake, to which the Hecate Solar Project will discharge its stormwater

161 runoff. Such sediment loads, that includes nutrient components, is a direct contributor to

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162 nuisance growth of submerged aquatic vegetation, and periodic Harmful Algal Bloom

163 (HAB) development. These are all existing and documented issues and demonstrate the

164 sensitivity of the system to watershed processes which will be fundamentally altered by

165 industrial-scale development, such as a solar energy generation facility.

166 The APO has been very active in maintaining the environmental integrity of Sleepy

167 Hollow Lake and meeting the best uses of the Class A waterbody. They have spent

168 millions of dollars maintaining their lake. Environmental and water quality management

169 activities include but are not limited to the construction of a wastewater treatment plant,

170 various water monitoring projects conducted throughout growing season; the

171 development of the Sleepy Hollow Lake Watershed Management Plan (WMP); fishery

172 management including stocking; aquatic plant management activities; dredging to

173 mitigate watershed-induced sedimentation; as well as dam safety compliance activities,

174 and routine water quality treatment and related obligations of managing a potable water

175 supply. In particular, the WMP has identified the following watershed management

176 activities to combat the issues mentioned above including gully erosion and ravine

177 restoration; streambank stabilization; road crossing replacement; floodplain

178 enhancement; agricultural Best Management Practices; and watershed monitoring.

179 Q: Do you have issues with the design and approach of the Application, as it is

180 currently proposed?

181 A: Yes, we have many concerns, including the current stage of the project and the lack of

182 detail that is provided. While it is understood that the project is currently still under

183 review for whether this particular site is acceptable for the location of such a massive

184 industrial facility, such as Hecate Solar, without the provision of details of the

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185 Stormwater Pollution Prevention Plan (SPPP), engineering plans of grading and

186 stormwater facilities, and technical specifications regarding how the project will be

187 implemented, it is difficult to make recommendations to the APO whether this project

188 will be a benefit or a detriment to their lake, the sole source of drinking water and central

189 amenity of the community. As the consultant foe APO, we have been advocating on

190 their behalf that they must be considered as a primary party, with near quasi-regulatory

191 status, to ensure that their Lake is protected from degradation. As a private community,

192 they maintain their own roads, storm sewers, and wastewater and potable water

193 treatment. They essentially function like a municipality. Unlike many of the other non-

194 governmental parties, who have legitimate and important reasons for their concerns and

195 need for protection, this project will have a direct and inextricable landscape connection

196 to Sleepy Hollow Lake. Whatever runs off the Hecate Solar Project’s site will, literally,

197 run downhill and into Sleepy Hollow Lake. If the water is clean, flooding is reduced,

198 and pollutant loading mitigated from what exists today, Sleepy Hollow Lake will benefit.

199 But, if flooding is worsened and the stormwater runoff and baseflow of the stream

200 contains increased sediment and nutrient loads, it is the APO and the community that

201 they represent that will end up paying the price in increased lake monitoring,

202 management, drinking water treatment costs, reduced recreational use of the lake, and

203 depressed property values. And, if events such as increased harmful algae blooms are

204 experienced, the cyanotoxins produced can threaten the Sleepy Hollow Lake ecosystem

205 and the health, well-being and quality of life of the community.

206 Q: Will the meeting of the minimum standards of the various regulations triggered by

207 this project protect Sleepy Hollow Lake from negative water quality impacts?

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208 A: No, not necessarily. Water quality protection regulations, like other types of

209 environmental rules, allow for negative impacts, if it is deemed by the regulatory

210 authority that such degradation will not, overall, create a detriment. For example, the

211 taking of an individual of a listed threatened and endangered species may be deemed

212 acceptable, if the overall population’s long-term viability is deemed not to be threatened.

213 However, like a species that is already in decline where the loss of one individual can

214 trigger the loss of the species, Sleepy Hollow Lake’s water quality status as a potable

215 water supply is threatened, especially as its water quality is currently compromised as a

216 State listed 303(d) impaired water. Any net degradation of water quality will have a

217 direct impact on increased costs to the APO and the community they represent and have a

218 direct threat to the designation of their lake as a drinking water supply. The potable

219 water status of the lake could be lost. For example, just one pound of phosphorus can

220 generate 500 pounds of algae in a lake system; a 500-fold increase; the impacts are not

221 linear but exponential. And the shear enormity of the proposed project and its significant

222 land area of the watershed that drains to Sleepy Hollow Lake will have a calculable and

223 measurable impact on its water quality, good or bad.

224 Q: What do you recommend that may reduce your concerns regarding the probable

225 impacts to Sleepy Hollow Lake?

226 A: In our attached letter reports and conversations with Hecate Solar, we have made several

227 recommendations to ensure the protection and, possible improvement to the water quality

228 of Sleepy Hollow Lake. These include the development of a comprehensive water

229 quality monitoring plan to determine a 1) baseline of the conditions before construction,

230 2) monitoring water quality during construction, and 3) post-construction water quality

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231 monitoring. We have also made recommendations for the implementation of test plots

232 of the proposed seed mixes to be used on the project to ensure that plants will not just

233 survive but thrive in the clayey and acidic nature of the site’s soils. Other than

234 statements such as “stormwater will be addressed during the Stormwater Pollution

235 Prevention Plan” preparation, there are very little details known at this time about how

236 stormwater from impervious surfaces will be managed, as well as from the solar arrays.

237 Most importantly, we expressed our concern about the impact of the construction on the

238 health of the onsite soils. Healthy, non-compacted soil will provide the foundation for

239 reduced stormwater runoff, healthy and robust vegetation with deep root systems, and

240 less maintenance and remediation of bare and compacted soils.

241 Q: What are your recommendations that would ensure that Sleepy Hollow Lake will be

242 protected from negative water quality impacts?

243 A: As outlined in our letter reviews and response to Hecate Solar’s consultant (Exhibits GG-

244 DT-2 through GG-DT-4), as well as during our video meetings with the Applicant and

245 their consultants, we offered the following efforts to mitigate the impacts to Sleepy

246 Hollow Lake and ensure the APO is comfortable about the design, construction, and

247 operation of this project.

248 1. The Applicant must commit to developing a program to monitor the bulk density of

249 onsite soils to ensure maintenance its hydrologic condition (ability to infiltrate

250 stormwater runoff to the extend the soil types would allow in their natural

251 undisturbed state) and prescribe methods to ensure real time, continuous monitoring

252 of soils in heavily trafficked areas, and limit construction traffic to a minimum of

253 travel paths throughout the site. During the development of the soil health protection

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254 plan, the APO must be a part of the development of such a monitoring protocol and

255 be shared with the results of a monitoring program as they occur.

256 2. The Applicant must commit to developing and implementing a robust water quality

257 monitoring plan along the tributary streams that convey stormwater runoff and

258 baseflow to Sleepy Hollow Lake. The plan must include pre-construction collection

259 of water quality samples in a variety of stream conditions (baseflow and during and

260 after storm events) and document the geomorphic conditions of the tributary streams

261 to develop baseline conditions. During construction, a relatively frequent water

262 collection and analysis program must also be developed and geomorphic monitoring,

263 and for a period of at least five years following the commissioning of the solar

264 facility, samples water samples must also be collected to ensure that the project was

265 designed and construction to protect Sleepy Hollow Lake.

266 3. Since revegetation within the Facility forms the basis of all proposed stormwater

267 management of the site during its operational lifecycle, we suggest that continued

268 development of that concept is necessary using a pilot study with seeding test plots.

269 To date, the endpoint of revegetation efforts is somewhat loosely defined, although it

270 is described as a warm season grass, dense, and pollinator friendly. A commercially

271 available seed mix, such as “Ernst Solar Farm”, has been identified for most of the

272 site, while a to-be named custom blend has been cited for wetland areas. Site and soil

273 preparation to ensure the necessary conditions to maintain the desired vegetative

274 cover, including mitigation of compaction, has not been addressed, nor a strategy of

275 adaptive management. A pilot study should be considered prior to development of the

276 site to ascertain the correct seed mix, its general management, as well as its

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277 performance in mitigating erosion and stormwater management. Such a study should

278 simulate within various discrete pilot plots conditions at the time of proposed seeding,

279 including compaction due to post and panel installation, account for different soil

280 types and soil hydrologic conditions, and explore different soil treatment/preparation

281 practices, as well as the appropriate management measures, post-seeding, to increase

282 vegetative cover and herbaceous health to meet cover targets.

283 4. In addition to the development of monitoring protocols, the Applicant, at least within

284 the boundaries of the properties they control, should invest in a stream restoration

285 plan on Murderer’s Creek and its tributaries where the geomorphic assessment of the

286 stream during the baseline monitoring program identifies areas that are unstable

287 because of past agricultural practices. Simply stabilizing the upland landscape is not

288 enough after a stream becomes destabilized. Destabilized streams can take decades

289 or centuries to return to an equilibrium without human intervention. As was

290 determined during Princeton Hydro’s investigations of the causes of Sleepy Hollow

291 Lake’s impairment from sediment impacts, it was determined that streambank erosion

292 is a major contributing factor. As Hecate Solar, if built, and Sleepy Hollow Lake

293 will be inextricably connected, there must be a commitment during the preparation of

294 the Certificate Condition to protect this sole drinking water source and centerpiece of

295 the Sleepy Hollow Lake community.

296 Q: Did you review the Proposed Certificate Conditions, dated December 15, 2020, and

297 Site Engineering and Environmental Plans (SEEP) document, and do you have any

298 concerns regarding its contents and conditions?

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299 A: Yes, we have prepared a letter (Exhibit GG-DT-5) that includes comments and

300 recommended changes to the conditions provided. In general, the proposed conditions

301 and SEEP have not included any observable recommendations that were offered by

302 Princeton Hydro on behalf of the APO in our previous correspondence and meetings with

303 the Applicant. At a minimum, as Sleepy Hollow Lake is a directly affected water

304 resource and its health will be inextricably tied to the success or failure of the Hecate

305 Solar to provide adequate stabilization of their site during construction and for the life of

306 the Facility. It is vital that the APO, as the organization founded to protect Sleepy

307 Hollow Lake and its community’s sole source of drinking water, to be involved in the

308 development of the design, during construction, and for the life of Hecate Solar, not just

309 as an intervenor providing comments, but as a partner and stakeholder in the success of

310 Hecate Solar in protecting the health, safety, and welfare of the local communities, which

311 includes Sleepy Hollow Lake.

312 For example, it is ours and the APO’s position that they must be part of pre-construction

313 meetings, periodic site meetings, and be informed in the event of an Inadvertent Return of

314 solutions from directional drilling, as well as be notified when there are spills of

315 chemicals or fuel on site, and if there are significant failures and breaches of the soil

316 erosion and sediment controls on the site that will send sediment laden waters to Sleepy

317 Hollow Lake.

318 The APO must be named in the Certification Conditions that they will be a partner in the

319 development of the Stormwater Pollution Prevention Plan (SPPP) and have approval

320 authority over the approaches proposed for construction and post-construction

321 stormwater management. There must be a documented agreement and commitment

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322 within the four corners of the Certification Conditions specific to the recommendations

323 that were made regarding the preparation of soil compaction monitoring, stream water

324 quality monitoring, and the preparation of test plots of vegetation to ensure that what is

325 being proposed will work on the subject site.

326 Q: Do you have any additional testimony that you would like to share that may assist in

327 the determination of the suitability of the subject project?

328 A: Yes. The Siting Board, in the review of this Application, should also consider the fact

329 that another, much larger Solar Energy Facility is proposed, and is also within the

330 watershed of Sleepy Hollow Lake. That application is identified as Flint Mine Solar

331 LLC, Case 18-F-0087. The Siting Board must look to the cumulative impacts of both

332 large-scale industrial energy developments and their impact on the water quality of

333 Sleepy Hollow Lake, as well as the other environmental, ecological, and cultural impacts

334 associated. The resulting impact of both of these proposed solar energy facilities will

335 have permanent effects on the health and wellbeing of Sleepy Hollow Lake and the

336 appropriate methods of planning, engineering, and construction must be developed now,

337 and the Sleepy Hollow Lake Association of Property Owners, as a directly and

338 inextricably connected part of the Hecate Solar Facility must have significant say in how

339 this project is developed.

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NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT ______

In the Matter of the Application of

Hecate Energy Greene 1 LLC, Case No.: 17-F-0619 Hecate Energy Greene 2 LLC, and Hecate Energy Greene County 3 LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility Located in the Town of Coxsackie, Greene County. ______

DIRECT TESTIMONY OF

LEE H. HARPER. PhD. PRINCIPAL, SENIOR ENVIRONMENTAL SCIENTIST RIVEREDGE ENVIRONMENTAL, INC.

December 18, 2020

Page 1 of 5

Case 18-F-0087 Harper 419

1 Q: Please state your name, employer, and business address.

2 A: Lee H. Harper, PhD., Riveredge Environmental, Inc., 58 Old River Road, Massena, NY,

3 13662.

4 Q: What is your position at Riveredge Environmental?

5 A. I founded Riveredge Associates LLC in 1997 and later Riveredge Environmental Inc. I

6 am the Principal and Senior Environmental Scientist of both companies.

7 Q: Please describe Riveredge Environmental.

8 A: Riveredge Environmental is an environmental science consulting firm specializing in

9 surveys of rare, threatened and endangered species (RTE); analyses of potential impacts

10 to RTE from development proposals; invasive species control, and the design and

11 monitoring of fish and wildlife habitat improvement projects.

12 Q: Please describe your educational background and professional experience.

13 A: After graduating from St. Lawrence University (SLU), I started my career in conservation

14 as an employee of World Wildlife Fund. I conducted my dissertation research on the

15 Biological Dynamics of Forest Fragments project in Brazil and received my Ph.D. from

16 SUNY Albany for my thesis on the effects of forest fragmentation on antbirds in the

17 central Amazon Basin. Later, I taught Tropical Ecology, Conservation Biology,

18 Ornithology, and other courses at SLU as a Visiting Assistant Professor. After working

19 for the New York Natural Heritage Program on a large-scale inventory project related to

20 New York Power Authority (NYPA) hydropower relicensing in northern New York, I

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Case 18-F-0087 Harper 420

21 formed Riveredge Associates and later Riveredge Environmental. Please see a copy of

22 my CV, attached as Exhibit ___ (LH-DT-1).

23 Q: Please describe your experience and expertise in grassland bird ecology.

24 A: My grassland bird expertise includes surveys and grassland habitat management and

25 monitoring in St. Lawrence County, Jefferson County, and in the Fort Edward Grasslands

26 IBA. The NYPA Grassland Bird Habitat Improvement Project involved grassland habitat

27 management through fencing, rotational grazing, and mowing.

28 Q: Please describe your responsibilities as a consultant on grassland bird issues, as it

29 relates to the Greene County Solar project.

30 A: Riveredge Environmental is engaged as a consultant to intervenor parties Scenic Hudson,

31 Inc. and Greene Land Trust to provide services consisting of review and analysis of the

32 potential impacts to grassland bird species, including RTE, from the proposed 50 MW

33 Greene County Solar project as well as the proposed adjacent 100 MW Flint Mine solar

34 project. This work includes: review of all existing documents, data sets, and maps

35 relating to the project site, grassland (open habitat) areas, and the surrounding landscape

36 as well as a site visit; review and analysis on any draft proposal for protecting and

37 managing areas of grassland habitat for sensitive species within the project’s facility site

38 and/or other conservation plan; and production of a written report on the sufficiency of

39 such proposal.

40 Q: Have you previously testified before the New York State Public Service Commission

41 or Board on Electric Generation Siting and Environment (“Siting Board”)? Case 18-F-0087 Harper 421

42 A: I have previously provided testimony in support of a Riveredge study on wetland surveys

43 and habitat assessments for the threatened Blanding's Turtle in relation to the

44 construction of a pipeline for St. Lawrence Gas.

45 Q: Have you previously served as an expert witness before any other court, agency, or

46 other body on the subject you plan to offer testimony on today?

47 A: No, I have not previously served as an expert witness on this or other solar projects.

48 Q: What is the purpose and scope of your testimony in this proceeding?

49 A: The purpose of my testimony is to sponsor a report for entry into the record on behalf of

50 Scenic Hudson, Inc. and Greene Land Trust regarding the avoidance, minimization and

51 mitigation plan for impacts to listed threatened and endangered grassland bird species

52 (specifically, the Short eared Owl and Northern Harrier) for the Greene County Solar

53 project. I am advised that the August 28, 2019, Stipulations apply to the application, and

54 require that since the construction, operation or maintenance of the Facility is likely to

55 result in a take of a listed species, including the adverse modification of habitat on which

56 a listed species depends, the application must include an avoidance, minimization and

57 mitigation plan that demonstrates a net conservation benefit to the affected species

58 pursuant to 6 NYCRR Part 182. Accordingly, my testimony discusses whether this

59 requirement is met by the application. See attached report identified as Exhibit _____

60 (LH-DT-2).

61 Q: What information is the basis for your testimony and report?

62 A: My testimony is based on the Project application on December 27, 2019 - specifically

63 Exhibit 22 - and the Preliminary Net Conservation Benefit Plan for the Greene County Case 18-F-0087 Harper 422

64 Solar Facility dated July, 2020, and filed in the record of the proceeding on July 28, 2020

65 (“Preliminary NCBP”). I have also reviewed certain additional documents and materials

66 in preparing this testimony, including the Greene County Grassland Habitat Management

67 Plan. I reviewed all the above-referenced materials in the context of the requirements of

68 16 NYCRR Part 182.

69 Q: In your opinion, does the Preliminary NCBP achieve a true net conservation benefit

70 for threatened and endangered species affected by the proposed Greene County

71 Solar Facility?

72 A: No. In my opinion the measures proposed in the Preliminary NCBP do not achieve a net

73 conservation benefit, i.e., the adverse impacts of the proposed Greene County Solar

74 facility on the protected species and their occupied habitat are not outweighed by positive

75 impacts anticipated from the proposed mitigation measures. See the report for a detailed

76 discussion of my opinion.

77 Q: What must any Final Net Conservation Benefit Plan include in order to achieve a

78 net conservation benefit?

79 A: The proposed certificate conditions filed by the applicant include a requirement for the

80 Certificate Holder to implement avoidance, minimization and mitigation measures,

81 including as specified in a Net Conservation Benefit Plan, and that a final Net

82 Conservation Benefit Plan shall be prepared as indicated in the Guidance for the

83 Development of Site Engineering and Environmental Plans (SEEP Guide.). The

84 specifications in the SEEP Guide for any final Net Conservation Benefit Plan should be

85 consistent with the recommendations of the report. 423

1 2-10-2021 - Hecate Energy - 17-F-0619

2 A.L.J. COSTELLO: Okay, and so going

3 forward, as the transcripts come in, we’ll get them

4 out to the parties as quickly as possible. We’d also

5 like to set the dates for briefing, initial briefing.

6 And I believe I’m following -- we’re -- we’re

7 following the timeframes that were provided by the

8 parties earlier in this case so that there’s four

9 weeks for the initial briefs that would be due. So

10 that would be -- they would be due on March 12th,

11 2021. And then there’s a three-week period for reply

12 briefs, which would be due on April 2nd, 2021.

13 And before I just -- if anyone has --

14 if there’s any discussion before we set those dates,

15 I just want to make sure everyone is fine with that.

16 Okay, hearing no objection, that’s -- that’s the

17 date. So 3/12/21 and 4/2/21.

18 Also, in other cases, parties have

19 provided a uniform table of contents. So -- and they

20 followed, you know, used that in their briefing so

21 that it made it easier for the arguments to be

22 located. And we’d ask that you also consult with

23 each other and prepare a uniform table of contents

24 for the briefs. And at this point, if there’s

25 anything else that any of the parties which to 424

1 2-10-2021 - Hecate Energy - 17-F-0619

2 address, we’re happy to hear from you. Okay.

3 So I don’t know if I’ve done this

4 already, but all the exhibits have -- will be moved

5 into the record that we have on exhibit lists so far.

6 And with respect to certain issues that we’ve

7 mentioned already, the evidentiary record will be

8 closed. So, you know, if -- if there’s anything

9 further, like I said, DPS Staff has a document that

10 they want to submit, which we’ll address in a short

11 ruling. If there’s anything else that comes up that

12 needs to -- affects the record, it will have to be by

13 motion. And we’ll deal with that in a ruling.

14 And with that, the evidentiary record

15 is closed. And we are adjourned. I think you all

16 for your professionalism today.

17 THE REPORTER: Okay, we’re off the

18 record.

19 (Off the record 1:01 p.m.)

20 (The proceeding concluded.)

25 425

1 2-10-2021 - Hecate Energy - 17-F-0619

2 STATE OF NEW YORK

3 I, JANET WALLRAVIN, do hereby certify that the foregoing

4 was reported by me, in the cause, at the time and place,

5 as stated in the caption hereto, at Page 1 hereof; that

6 the foregoing typewritten transcription consisting of

7 pages 1 through 424, is a true record of all proceedings

8 had at the hearing.

9 IN WITNESS WHEREOF, I have hereunto

10 subscribed my name, this the 12th day of February, 2021.

13 JANET WALLRAVIN, Reporter