August 26, 2020
Via Electronic Mail
Hon. Michelle L. Phillips, Secretary New York State Board on Electric Generation Siting and the Environment 3 Empire State Plaza Albany, New York 12223-1350
RE: Case No. 20-F-0048 – Application of Hecate Energy Columbia County 1, 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 Copake, Columbia County. Shepherd’s Run Solar
Dear Secretary Phillips:
Pursuant to the Notice of Filing of Preliminary Scoping Statement and Deadline for
Submitting Comments issued August 6, 2020, Scenic Hudson, Inc. (“Scenic Hudson”) respectfully
submits the following comments on the Preliminary Scoping Statement (“PSS”) submitted in the above-referenced proceeding.
Scenic Hudson’s Interest
Scenic Hudson is a 501(c)(3) organization based in Poughkeepsie, New York. Scenic
Hudson is dedicated to preserving the scenic, ecological, recreational, historic and agricultural treasures of the Hudson River valley. We combine land acquisition, support for agriculture, citizen-based advocacy and sophisticated planning tools to create environmentally healthy communities, champion smart economic growth, open up riverfronts to the public and preserve the valley’s inspiring beauty and natural resources. A crusader for the valley since 1963, today we are the largest environmental group focused on the Hudson River and its valley. We have over 25,000 supporters, the majority of which reside in the Hudson Valley region, including in Columbia County.
The Scenic Hudson Land Trust, Inc. is an affiliate of Scenic Hudson, Inc. that owns lands throughout the Hudson Valley in fee and by conservation easement, including in Columbia County. The Scenic Hudson Land Trust exists to support the mission of Scenic Hudson and holds
1
interests in real property that exhibit the open space and agricultural values that Scenic Hudson is dedicated to preserving. Scenic Hudson has protected over 45,000 acres in nine counties and created or enhanced many parks and preserves for public enjoyment throughout the Hudson Valley.
New York’s landmark Climate Leadership and Community Protection Act (CLCPA) increased the state’s 2030 renewable energy supply target from 50% to 70% in the interest of reducing greenhouse gas emissions and mitigating the worst impacts of climate change. Scenic Hudson strongly supports these initiatives. We seek to ensure that the development of solar energy projects in the Hudson Valley is maximized while protecting the region's priceless natural
resources, scenic views and historic sites. It is Scenic Hudson’s view that we can fight climate
change by helping make the Hudson Valley a leader in clean energy. This can create new jobs, provide reliable and affordable energy, and shape healthier, stronger communities.
Scenic Hudson is focused on promoting the development of solar projects in the Hudson
Valley while simultaneously preserving important natural and economic resources. We have published a guide to siting renewable projects in the Hudson Valley, Clean Energy, Green Communities, which was developed to help overcome challenges presented by large-scale solar projects such as this.1 Clean Energy, Green Communities contains several siting and design principles for renewable energy development to help stakeholders find common ground in a regional model for increased renewable energy development that also protects natural and economic resources. Under Clean Energy, Green Communities principles, low-conflict sites and areas should be identified and prioritized for use, while areas with high conservation, agricultural, ecological and cultural value should be avoided for development. Projects should be sited and designed to minimize impacts to these valuable resources. Opportunities should be pursued to achieve dual-use, or co-location, of solar energy projects and other uses, such as pollinator-friendly plantings, livestock grazing or crops. In this way, the benefits of renewable energy can be achieved without compromising conservation values.
The proposed Shepherd’s Run Solar Facility (“Facility”) is one of several proposed large-
scale solar projects in the Hudson Valley currently undergoing review under Public Service Law Article 10. We are following this proceeding as well as several others in the Hudson Valley currently pending before the New York State Board on Electric Generation Siting and the
1 https://www.scenichudson.org/wp-content/uploads/legacy/renewables-siting-guide_web.pdf
2
Environment (“Siting Board”) (specifically, Case Numbers 17-F-0617, 17-F-0619 and 18-F- 0087).
PSS Requirements
The PSS is vitally important to the Article 10 process. It is the public’s first significant opportunity to learn about the potential impacts and benefits of the proposed project. The PSS must provide a preliminary scope of an impact analysis containing a brief discussion of, among other things:
the potential significant adverse environmental and health impacts of a proposed project;
the extent and quality of information needed for the application to adequately address and evaluate each potentially significant adverse environmental and health impact;
how the applicant proposes to avoid environmental impacts or mitigate unavoidable impacts; and
reasonable and available alternative locations for the proposed facility, including a description of their comparative advantages and disadvantages.2
The PSS may serve as the basis for any stipulations, or agreements, between the applicant and stakeholders regarding the scope and methodology of the studies to be conducted for the formal application.3 Ultimately, based on the studies and information contained in the application, the Siting Board must determine whether to grant permission for an applicant to construct and operate a major electric generation facility and find, among other things, that:
it will be a beneficial addition for the electric generation capacity of the state; it will serve the public interest;
“the adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable;”
if there are “significant and adverse disproportionate environmental impacts” from a proposal, that “the applicant will avoid, offset, or minimize the impacts caused
by the facility upon the local community for the duration that the certificate is issued to the maximum extent practicable using verifiable measures”; and
2 NY Public Service Law (“PSL”) § 163(1); 16 NYCRR § 1000.5(l).
3 16 NYCRR § 1000.5(j).
3
the Facility is designed to operate in compliance with applicable local laws concerning the environment and public health and safety that are not unduly burdensome.4
Comments on the Preliminary Scoping Statement for the Shepherd’s Run Solar Facility
The Proposed Shepherd’s Run Solar Facility has the potential to significantly impact
natural, agricultural and visual resources, among others. In order for the Siting Board to make the required findings, the application must fully assess such potential impacts along with sufficient avoidance and mitigation measures. The PSS contains very little information to help the public fully understand the range and size of potential impacts or be able to comment on the extent and quality of information that must be included in the application for the Siting Board to make its decision. However, we have identified the following potentially significant impacts that must be studied and assessed.
Impacts to Water Resources
The Facility has the potential to impact surface water resources, i.e., streams including floodplains, and wetlands. The PSS states that the Taghkanic creek, a designated inland waterway, is located in the center of the Project Area. In addition, there are multiple streams within the Project Area, and a majority of the streams identified on-site are NYSDEC Class C(T) and C (TS) classified. The PSS provides no significant information regarding the extent of floodplains or wetlands on the site, stating only that the applicant will use Best Management Practices to minimize and avoid impacts to the latter.
Given these site constraints, designing a project layout that avoids and minimizes impacts to water resources (avoiding crossing of wetlands and streams by access roads, electrical infrastructure, and other facility elements) while achieving desired power generation potential may prove difficult. These considerations must be addressed in the application, including assessment of floodplain areas along with streams, both as habitats and as flood risk areas.
Impacts to Forested Areas
The PSS states that the site consists of mostly agricultural and forested land, and that the vegetative cover type within the Project Area consists primarily of deciduous forest (45.5%), pasture/hay (26.8 percent), cultivated crops (9.8%), woody wetlands (5.9%), and developed open
4 NY Public Service Law (“PSL”) § 163(3).
4
space (3.5%). Along with water resources, measures to avoid and mitigate impacts to forested areas must be fully assessed in the application.
Impacts to Threatened, Endangered and Rare Species
The PSS states that the application will study potential impacts to amphibians and reptiles, mammals and amphibian species. Indiana bat and bog turtle, endangered and threatened species, respectively, could potentially occur within the project area. In addition, The PSS states that the project area includes grasslands; and breeding bird and winter raptor studies are being conducted. Winter raptor surveys were initiated in November 2019 and concluded March 31, 2020, although no further information regarding the results of such surveys is provided in the PSS. The PSS states that other species-specific surveys will be conducted prior to submission of the Article 10 Application, including a breeding bird survey.
The PSS states: “If the Applicant determines that there will be a “take” of a threatened
and/or endangered species as a result of the Project, then a draft Net Conservation Benefit Plan will be included in the Application. If it is determined by the Siting Board that a ‘take’ of a threatened and/or endangered species will be caused by the construction, operation, postconstruction restoration, or maintenance of the Project within the meaning of 6 NYCRR 182, a full post-construction monitoring plan will be developed prior to the start of construction and submitted in the Compliance Filing for approval.”
Any “take” determination must be made well in advance of application submission, and the application should include both a net conservation benefit plan and post-construction monitoring plan to allow for public review. Avoidance of impacts to grassland habitats should focus not only on direct physical impacts, but the reduction in contiguous areas of habitat. Moreover, any areas set aside for habitat mitigation must be contiguous in order to provide meaningful acreage for area sensitive species.
Visual Impacts
The PSS provides no preliminary information regarding potential visual impacts of the project. Rather, it simply states that a Visual Impact Assessment (VIA) will be prepared for the project and included in the application. The selection of visual resources and viewpoints assessed in the VIA contained in the application should be made with public input.
5
Agricultural Impacts
The PSS states that a majority of the Project Area is located within Columbia County’s
Agricultural District 1, and that current agricultural uses on the site include pasture, hay, corn and some other cultivated crops. In addition, the Project Area contains Prime Farmland, Prime Farmland if Drained, and Farmland of Statewide Significance. In addition, the Project Area contains significant amounts of land of highest value in the Combined Farmland Index of Soil Value, Farm Size and Farm Density as determined in Scenic Hudson’s strategic agricultural
preservation approach: Securing Fresh Local Food for New York City and the Hudson Valley: A Foodshed Conservation Plan for the Region.5 Therefore, the project has the potential to
significantly impact important agricultural resources.
The PSS states that “an analysis of the temporary and permanent impacts of the construction and operation of the Project and interconnections on agricultural resources, including the current agricultural use of the Project Area, if any, including acres of agricultural land temporarily impacted, the number of acres of agricultural land that may be considered permanently converted to nonagricultural use, and mitigation measures to minimize the impact to agricultural resources, to the maximum extent practicable. This analysis will include reference to the NYSDAM guidance document entitled Guidelines for Solar Energy Projects – Construction Mitigation for Lands dated October 18, 2019. If for any reason guidelines cannot be met, NYSDAM will be contacted to discuss applicable alternatives.” The agricultural impacts and mitigation analysis should also include the potential for co-location of energy generation and agricultural use.
Alternatives Analysis
The PSS is required to include “a description and evaluation of reasonable and available
alternative locations for the proposed facility, including a description of the comparative advantages of the proposed and alternative locations, except that a private facility applicant may limit its description and evaluation of alternative location to parcels owned by or under option to such private applicant or its affiliates.”6 However, the PSS does not provide such analysis, and states only that “the Application will include an identification, if any, of applicable, reasonable, and available alternative locations for the Project.”
5 http://www.scenichudson.org/wp-content/uploads/legacy/foodshed-conservation-plan-web.pdf
6 16 NYCRR § 1000.5(l)(2)(viii); (x).
6
The PSS states that the Project Area being evaluated for placement of permanent project components is 900 acres, while the Project and its associated components will occupy approximately 400 to 500 acres, and that project siting has not yet been finalized. Therefore, it appears there are multiple layout and design options for the project, including the potential for including storage. The PSS should provide more information at this time, even if only preliminary, on the range of project alternatives in the interest of promoting public knowledge and feedback and to provide a basis for potential stipulations on the range and the studies of such alternatives.
Local Laws and Ordinances
The PSS indicates that the Town of Copake zoning law limits the size of utility scale solar to 10 acres and states that the Applicant may need a waiver from this provision as unreasonably burdensome. Pursuant to Article 10, the application must demonstrate that the Facility complies with local laws concerning the environment and public health and safety that are not unduly burdensome. In the event the Applicant will seek a waiver of application of any local ordinances, the Applicant must adequately demonstrate that the requirement is unduly burdensome in order to justify such waiver under the provisions of the Public Service Law.
Post-Operation Considerations
The PSS states that “at the end of the useful economic life of the Project, the Project will either continue operations, be repowered, or be decommissioned. In the event that the Project permanently ceases operations, the Decommissioning Plan will be implemented to remove and recycle, to the maximum extent practicable, equipment and related materials to essentially return the Project Area to substantially its pre-construction condition so that it is available for agriculture and other open space usage, as determined by the landowner.” The application should provide a discussion of the likelihood and impacts of the various scenarios.
Thank you for your attention to these comments on the Preliminary Scoping Statement for the proposed Shepherd’s Run Solar Facility.
Respectfully submitted,
Audrey Friedrichsen, Esq., LL.M.
Scenic Hudson, Inc.
Cc: Alex Campbell, (via electronic mail at [email protected])
7
