REVIEW OF THE HECATE ENERGY GREENE COUNTY SOLAR FACILITY AVIAN IMPACT ASSESSMENTS AND PRELIMINARY NET CONSERVATION BENEFIT PLAN, COXSACKIE FLATS, NEW YORK

REPORT

PREPARED FOR:

One Civic Center Plaza, Suite 200 P. O. Box 387 Poughkeepsie, New York 12601 Coxsackie, New York 12051

PREPARED BY:

RIVEREDGE ENVIRONMENTAL, INC. 58 OLD RIVER RD. MASSENA, NEW YORK 13662

December 2020

Hecate Greene NCBP Review

TABLE OF CONTENTS

EXECUTIVE SUMMARY...... 2 1.0 INTRODUCTION ...... 3 2.0 T&E RAPTORS OF THE COXSACKIE FLATS...... 5 2.1 Northern Harrier and Short-eared Owl...... 5 2.2 Coxsackie Flats in the Regional Landscape ...... 5 3.0 POTENTIAL EFFECTS ON T&E SPECIES...... 9 3.1 Habitat Use ...... 9 3.2 Potential for Avian Mortality ...... 11 3.3 Site Occupancy and Impact Assessment ...... 11 3.4 Potential Impacts of Hecate Greene on Wintering Raptors ...... 13 4.0 NET CONSERVATION BENEFIT PLAN (NCBP) ...... 14 4.1 Overview ...... 14 4.2 Proposed Impact Mitigation Measures ...... 15 4.2.1 Calculation of Adverse Impact and Mitigation Acreages ...... 15 4.2.2 Specific Recommendations for Mitigation ...... 17 4.2.3 Specific Practices ...... 18 4.3 Post-Construction Monitoring ...... 19 4.4 Land Conservation and Commitment to Habitat Management ...... 20 5.0 CUMULATIVE IMPACTS ...... 21 6.0 REFERENCES ...... 23

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EXECUTIVE SUMMARY

The Hecate Energy Greene County Solar Facility (Case No. 17-F-0619) (hereafter Hecate or Hecate Greene) Preliminary Net Conservation Benefit Plan (PNCBP or Preliminary NCBP)  does not meet the requirements of state law to avoid, minimize, or mitigate the adverse modification of habitat for threatened and endangered species.  does not make a clear case that the avoidance and minimization of adverse modification of threatened and endangered species habitat was adequately considered. Indeed, the Hecate Greene solar project is placed entirely within occupied threatened and endangered species habitat.  does not provide a net conservation benefit. The NCBP must provide for increased acreage of useful mitigation area with a goal of a 1:1 mitigation ratio, as well as a clear commitment to habitat management and monitoring.  must provide more specificity and commitment to funding a land protection structure and mitigation activities and practices in order to guarantee implementation of the NCBP as required.  needs to be revised to remove the sections that minimize and distort the anticipated impacts to rare species, and provide more support for the claim that panels are better for prey populations than farming.  must demonstrate that the take will not reduce the likelihood of the survival or recovery of Northern Harrier and Short-eared Owl in New York.

The Hecate Greene PNCBP is currently deficient in these regards. The PCNBP does not demonstrate a net conservation benefit to the Short-eared Owls and Northern Harriers that are known to occupy the lands of proposed Facility.

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1.0 INTRODUCTION

Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, and Hecate Energy Greene 3 LLC (hereafter "Hecate" or "Hecate Greene") is proposing to construct the Greene County Solar Facility, a 50-megawatt photovoltaic (PV) solar generation facility located within approximately 827 acres of privately-owned land in the Town of Coxsackie along Farm to Market Road between United States Route 9W and New York State Route 385 (the “Facility”). The Facility would have a nameplate capacity of approximately 50 MW (AC) and would consist of solar arrays and associated infrastructure with a footprint of approximately 368 acres of the total 827-acre Facility Area.

Hecate prepared several documents included in Exhibit 22 (Terrestrial Ecology and Wetlands) of the application, including a Habitat Assessment and Preliminary Impact Determination Report (Appendix 22-C (Tetra Tech 2019a, 2020a)), and an Avian Cumulative Impact Assessment Report (Appendix 22-E (Tetra Tech 2019b, 2020b)).1 These impact assessments evaluated rare, threatened, and endangered (RTE) avian species requirements and the potential impacts of the construction, operation, and maintenance of the Greene County Solar Facility on these species.

A determination by the NYS Department of Conservation (“NYSDEC”) that construction and operation of the facility will result in adverse impacts to species and occupied habitat, and that a take will occur, triggered the stipulated requirement for an avoidance, minimization and mitigation plan that results in a net conservation benefit to the affected species. In July, Hecate filed a Preliminary Net Conservation Benefit Plan (PNCBP; Tetra Tech 2020c). The PNCBP described Hecate's efforts to avoid, minimize, or mitigate the adverse take of threatened and endangered (T&E) species habitat during the siting, construction, operation, and maintenance of the facility.

The Habitat Assessment and Preliminary Impact Determination Report (Tetra Tech 2020a) clearly states (page 4, section 2.5, paragraph 3) that NYS Environmental Conservation

1 Original versions of these documents were filed with the application on December 27, 2019. Revised versions of these documents were filed in the record as an application supplement on March 20, 2020. Since the revised version referred to figures in the original reports, both versions of the documents were reviewed for this report. 3 LH-DT-2 Riveredge Environmental Inc. Hecate Greene NCBP Review

Law regulates "all activities that will result in direct harm to listed species or the adverse modification of the occupied habitat of endangered or threatened species" and that 16 NYCRR Part 182 defines adverse modification of habitat as "any alteration of the occupied habitat of any species listed as endangered or threatened ... that ... is likely to negatively affect one of more essential behaviors of such species."

The PNCBP (Tetra Tech 2020c, Section 3.3 p. 13) clearly states that "all lands within the Facility Area was considered occupied habitat." The impact assessments and the PNCBP describe the impacts that this project will have through the direct take of occupied habitat for the T&E species and the mitigation measures proposed to provide an overall net conservation benefit for these species. The purpose of this review is to assess the adequacy of the impact assessments and to determine if the proposed PNCBP actually provides a net conservation benefit to the threatened Northern Harrier and the endangered Short-eared Owl at the Facility site in the Coxsackie Flats.

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2.0 T&E RAPTORS OF THE COXSACKIE FLATS

2.1 Northern Harrier and Short-eared Owl

Hecate Greene discusses the natural history and habitat requirements of the two threatened or endangered species in the Habitat Assessment and Preliminary Impact Determination Report (Tetra Tech 2020a, 2020b). The treatment of these species in these impact assessments is inadequate and appears to leave out important aspects of the species’ natural history and behavior. Although Tetra Tech cites Smith et al. (2011) in their report, they failed to include the most important information on habitat use and behavior from this reference that would assist the Siting Board in understanding the rare, threatened and endangered (“RTE”) species issues at hand.

For example, the winter habits of Northern Harrier, a threatened species that annually occupies the habitat in and surrounding the proposed Greene County Solar Facility, is described by in a single sentence: "Winter months are spent roosting in communal flocks in open habitats with high rodent populations, such as abandoned fields and salt marshes" (Tetra Tech 2020a Section 3.2.4). Clearly, the birds do more than simply roost during winter. They also actively fly and forage, and do so in a variety of habitats. Importantly, Northern Harriers initiate courtship and formation of the breeding pair bond on the wintering grounds.

The habitats used by Northern Harriers during winter are more fully described by Smith et al. (2011, 2020) and clearly indicate that Northern Harriers use a variety of habitats for foraging, including the habitats found at the proposed Greene County Solar Facility site. Furthermore, within these occupied habitats, these wintering raptors forage at flight heights where solar panels would be present (Smith et al. 2011, 2020, Wiggins et al. 2006, 2020).

2.2 Coxsackie Flats in the Regional Landscape

The Coxsackie Flats region has a long history of seasonal use by the threatened Northern Harrier and the endangered Short-eared Owl. For at least the last half century (Drennen 1981) these raptors have regularly wintered and occasionally nested in the region. The Coxsackie Flats area is a major wintering raptor area in the Hudson Valley. It often hosts larger concentrations of Northern Harrier than regions to the south and east where suitable habitat availability is 5 Riveredge Environmental Inc. Hecate Greene NCBP Review declining. Although small numbers of wintering birds are regularly seen on Long Island and associated offshore islands, this Hudson Valley area usually hosts larger concentrations of Short- eared Owls. The numbers of harriers and owls present are largest during peaks of vole cycles in open areas of suitable habitat. The local and regional population abundance and over winter survival are determined by prey availability, habitat quality, snow cover, and other ecological factors. In this regard it is clear this area provides important long-term wintering habitat for both these species.

Because the Coxsackie Flats grasslands are well known as important raptor habitat, the New York State Open Space plan of 2016 specifically highlighted the Coxsackie Flats Grassland Area as an important habitat for a suite of breeding and wintering grassland-dependent birds (NYS 2016). The Open Space Plan notes that "the majority of the flats continue to be vulnerable, and increased protection is necessary to secure this significant grassland habitat and very popular recreational birding area" (NYS 2016).

In the Northeastern United States, large grasslands have been reduced greatly in the last hundred years. While it is true that a major factor has been reversion of family farms to forest, that is not the only factor. The continued conversion of remaining grassland and hay lands to other uses is a major problem for grassland species. These human induced changes include, but are not limited to, development for residential and commercial structures and agricultural practices emphasizing row crops and other intensive agricultural practices. At the present time, the proposed development of renewable energy at important grassland bird sites adds but another significant pressure to the list of threats facing northeastern grasslands and their fauna.

In Eastern New York and New England there are few remaining sizable expanses of undeveloped open grasslands. Many of these are primarily found in coastal areas and on islands. Priority open sites occur in southern Maine and on the islands off Eastern Massachusetts. Most other coastal grasslands are relatively small and all are under a variety of intense development pressures. In New York, most coastal grasslands on Long Island are very small, highly fragmented, and are disrupted by factors including surrounding development and invasive plant species.

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The Hudson River corridor of New York contains three grasslands of significant size that support concentrations of grassland birds. These grasslands are the most important of such sites remaining in the interior of this region. In particular these areas host substantial wintering concentrations of the Short-eared Owl and Northern Harrier. Thus, they are all regionally important to these declining birds of prey. These three areas are the Fort Edward Grassland in Washington County, the Shawangunk Grasslands in Ulster County, and the Coxsackie Flats Grasslands in Greene County. Each of these three sites provide important grassland habitat in the Hudson River corridor and associated uplands east and west of the river valley.

Fort Edward Grasslands Washington County

At approximately 13,000 acres, this is the largest grassland complex in the Hudson River Region. It has been designated as an Important Bird Area (IBA) by Audubon New York and over 500 acres are protected. In addition to the winter raptors this site hosts a full suite of breeding grassland birds including severely declining species such as Henslow’s Sparrow and Upland Sandpiper. Clearly a crucial site in this region, the NYSDEC has acquired anchor lands as they begin attempting to preserve the area. Long known for its grassland birds, conservation efforts were stimulated more than a decade ago by proposals for large housing developments. Since then municipal governments, the state, and interested private organizations have cooperated on preserving land and protecting portions of these important grasslands.

Shawangunk Grasslands Ulster County

The smallest of the three critical areas in the region at approximately 530 acres, this National Wildlife Refuge annually hosts wintering Northern Harrier and Short-eared Owl concentrations. In addition, a full suite of rare and more common grassland breeding and wintering species have been recorded. The area has also been designated an Important Bird Area by Audubon New York. A former World War Two pilot training base, this site now enjoys full protection and management as a wildlife refuge.

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Coxsackie Flats Grasslands. Greene County

The Coxsackie Flats are intermediate in size between the preceding two areas and are under pressure from development and changing agricultural practices. The conversion of large areas to row crop agriculture and the increasing presence of residential development have impacted the grasslands in this area. Significant numbers of Short- eared Owls and Northern Harriers winter in the area, and a unique partnership interested in habitat conservation developed the visionary Greene County Grassland Habitat Management Plan (Strong et al. 2014) which focused on these two species. The plan offers a foundation for municipalities, developers, local residents, and other stakeholders interested in maintaining this landscape and its wildlife for the future. Some grassland areas have been set aside as conservation lands, such as the nearly 500- acre Coxsackie Creek Grasslands Preserve of the Greene Land Trust. In addition to being an important wintering area in its own right, it is likely that the Coxsackie Flats provide an important stepping stone in movements of these species among wintering grounds in the Northeast.

These three grassland areas provide valuable wintering habitat in years when food resources are adequate. Food availability likely varies between these interior regional sites, thus raptor concentrations vary between years at these sites. Similar annual alternating variability has been observed at sites in Northern New York and southern Canada. Some sites are critical in some winters and other sites are critical in other winters depending on prey abundance and local conditions. The availability of enough suitable alternative wintering habitat may be critical to long term maintenance of regional wintering populations in New York State. Thus, given the limited availability of grassland habitat for wintering threatened and endangered raptors in the Hudson River region, each of these sites is of substantial importance. It is clear that these sites and open lands in Vermont East of Lake Champlain provide some of the best and most important raptor habitat for the interior Northeast. The Coxsackie Flats area remains an important asset to wintering raptor populations.

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3.0 POTENTIAL EFFECTS ON T&E SPECIES

Tetra Tech correctly states that there is little scientific literature available to address potential impacts to birds from utility scale solar energy developments. However, some scientific research does exist, and some guidelines have been established for the development of such projects. The basic ecology of these species suggests that constructing solar farms in occupied habitat would have negative impacts on these birds.

It is generally assumed that the effects of solar energy development on wildlife are negative, largely because of destruction and modification of wildlife habitat (Lovich and Ennen 2011). The review by Gasparatos et al. (2017) suggests measures to mitigate the negative effects of solar energy on biodiversity, primarily by locating these facilities in areas with poor habitat and little biodiversity. On a local scale, Devault et al. (2014) reported that solar development is generally detrimental to wildlife. Taylor et al. (2019) noted that ground-mounted PV panels have the potential to cause high impact on nature as they often are installed on land which may have some value to wildlife.

The potential impacts of the Greene County Solar Facility include the direct take of individual birds, the displacement of wintering raptors, the alteration of wintering raptor behavior, and the direct take of occupied wintering raptor habitat.

3.1 Habitat Use

A consistent point of contention is whether or not birds will forage between or under PV modules. In general, open space foraging raptors fly low over open habitats in search of small mammal prey which they locate by sound. The foraging flight height of these species is approximately equal to the height of the solar panels (Smith et al. 2011, 2020, Wiggins et al. 2006, 2020). The panels are likely to significantly impair the ability of these species to use any of the PV panel array areas for foraging, primarily due to the direct interference of panels in their flight paths, and the potential for noise from inverters preventing them from locating prey by sound. In addition, population densities and recruitment of their primary prey, the meadow vole, are significantly lower in areas of reduced vegetative cover (Peles and Barrett (1996).

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Short-eared Owls appear particularly sensitive to habitat fragmentation and they require relatively large tracts of grassland habitat (Wiggins et al. 2020). The loss of open grasslands is the primary causative factor behind recent declines in large parts of their range. Maintaining large continuous tracts of habitat for the owls and their prey is critical, and these habitat blocks should be larger than 250 acres (100 ha) (Wiggins et al. 2020). Small grassland habitats or habitat fragments are unattractive to the owls due to the increased predation pressure that is typical within fragmented habitats (Wiggins et al. 2020).

DeVault et al. (2014) conducted 1,402 bird surveys at five pairs of photo-voltaic (PV) arrays and nearby airport grasslands (887 on airfields and 515 on solar fields) during a one-year period (March 2011–February 2012). Across locations, they observed 46 species of birds in airfield grasslands compared to 37 species in PV arrays. Although the number of species was lower in PV arrays, slightly more than twice the number of birds per unit area was observed in PV arrays than on airfields. This was due in part because some small birds used PV arrays for shade and perches in summer and to a lesser degree in spring. However, large birds, such as raptors, were less abundant in PV arrays. One raptor, the Northern Harrier, was observed at two airfields, but was never observed in any of the five PV arrays during the 515 bird surveys at the PV sites (DeVault et al. 2014).

The observations of Devault et al. (2014) suggested that some small birds used PV arrays in summer and to a lesser degree in spring for shade and perches. PV arrays provide perches from which territorial males can sing and display, and may be used by species such as Red- winged Blackbirds for this purpose in arrays located near wetlands (Devault et al. 2014). Small birds often use the shade under PV arrays during the hottest part of summer days in Arizona and Colorado (Devault et al. 2014). In addition, there is anecdotal evidence that the aluminum racking of PV panel arrays offer attractive nest structures for birds such as House Sparrows and Starlings near the lower Hudson River region in New Jersey. Perches, shade, and nest sites can increase local bird abundance. While overall abundance of birds may increase, the species that might increase tend to be non-native or not of conservation concern, and in some cases, undesirable due to competition and displacement of native species.

Although little field data and literature are available to address wintering raptor foraging among PV panel arrays, studies such as Devault et al. (2014) and the known foraging heights of 10 Riveredge Environmental Inc. Hecate Greene NCBP Review these T&E species suggest that the habitat within the panel arrays themselves is not suitable as raptor foraging habitat. Therefore, the installation of PV panels can be expected to result in the displacement of raptors.

3.2 Potential for Avian Mortality

Walston et al. (2016) estimated avian mortality rates for three utility scale solar energy projects in southern California, the only facilities in the United States where such data were collected systematically. Each of the three projects varied in size, area, and method of converting solar energy into power (including concentrated solar power), but nonetheless had similar total avian mortality rates when standardized to nameplate capacity. These avian mortality estimates ranged from 9.3 to 10.7 birds per year per megawatt of nameplate electric capacity (Walston et al. 2016). These figures include bird mortalities identified as being directly related to project facilities and dead birds found at the sites for which the cause of death was unknown.

Although avian mortality rates at utility scale solar facilities in the western United States, particularly projects of concentrated solar power, may be very different from those in the Hudson Valley of New York, these mortality data provide a starting point for discussion. If these mortality rates are applied to the Greene County Solar Facility, it would be expected that a minimum of 465 birds would be found dead at the site each year (minimum annual rate of 9.3 birds per megawatt nameplate capacity multiplied by 50 megawatt facility). Even if the actual mortality is only half of this, these data strongly suggest that the direct take of individual birds at the proposed Greene County Solar Facility is possible.

3.3 Site Occupancy and Impact Assessment

The annual use of the habitat at the proposed Greene County Solar Facility has been well documented by NYSDEC, which found that Northern Harriers were present on the site every year during the 11-year survey period from Fall 2008 to Spring 2019 (TetraTech 2020a, Section 3.3). Tetra Tech's natural history overview correctly notes that Northern Harriers may be nomadic and regional abundance trends may vary considerably, but the trend at the proposed Greene County Solar Facility has not varied at all. Northern Harriers have been present on this site every year for the 11-years it was surveyed by NYSDEC. This habitat is annually occupied by a NYSDEC listed threatened species. 11 Riveredge Environmental Inc. Hecate Greene NCBP Review

In addition, within the known nomadic tendencies of the Short-eared Owl in relation to environmental variables, the Coxsackie Flats area is consistently used by this endangered species. The New York Natural Heritage Program (NYNHP) reported to Tetra Tech in March 2018 that the threatened Northern Harrier and the endangered Short-eared Owl "have been documented on nearly 100% of the facility area" (Tetra Tech 2019a; Appendix E (Protected Species Correspondence), page 52 of 87). Thus, the data available clearly demonstrates high site fidelity and annual occupancy of the habitats present at the proposed Greene County Solar Facility site. In addition, the Facility site lies primarily within a "Raptor Winter Concentration Area" (PNCBP, Tetra Tech 2020c, Section 2.0 p.8).

In addition to foraging habitat, winter roosts are known to occur on the Greene County Solar Facility site from decades of observations by local birders. Winter communal roosting is an essential behavior of both of these species. Mixed age communal roosts are important, particularly for first-year birds, to obtain information on high quality foraging areas. Smith et al. (2011, 2020) noted that communal roosts (in Illinois) were only in undisturbed cool-season grasses which averaged about 25 cm tall. These communal winter roosts are often used annually, and some have been known to exist in the same location for decades, such as near the Fort Edward Grasslands IBA. Indeed, roosts have been documented in the Coxsackie Flats area by local birders for at least 40 years.

Winter roost sites are a top conservation priority, and should be protected from any habitat modification that is likely to negatively affect the essential behavior of roosting for these species. Habitat alteration that would negatively affect roosting and foraging behavior would certainly include the placement of elevated structures over the top of the roosting habitat, which would directly interfere with flight access to the roost site, or mowing of the grasslands to a height of less than 25 cm (10 inches), which is needed for roosting and to support prey populations. Such construction and maintenance activities are indeed a direct alteration of occupied habitat that would result in the physical exclusion of this threatened species.

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3.4 Potential Impacts of Hecate Greene on Wintering Raptors

The PNCBP (Tetra Tech 2020c) notes that approximately 368 acres of habitat will be either temporarily disturbed or permanently converted due to construction and operation of the Facility, including large areas that are currently open agricultural lands.

Tetra Tech (2020a; Section 4.2.4) states that known winter raptor habitat has the potential to be impacted by the installation of solar panels. Specifically, Tetra Tech stated that the installation of solar panels will potentially disturb or disrupt the activity of prey species. (Id.) Wiggins et al. (2006, 2020) noted that the activity of Short-eared Owls coincides with activity periods of their prey (see Diet and Foraging, Feeding, Food Capture and Consumption, paragraph 1). Thus, the disturbance or disruption of prey activity has a very high probability of directly affecting an essential behavior, in this case foraging, of this endangered species.

Foraging, or feeding, is essential to stay alive. The New York State Department of Environmental Conservation (NYSDEC or DEC) recorded a total of 310 Northern Harriers in the Greene County Solar Facility during their surveys. (TetraTech 2020a, Section 4.2.4). If this project interferes with the ability of any of these birds to survive the winter through disruption of the prey base, then this project will have both altered existing occupied habitat and engaged in a direct take of a threatened or endangered species.

Despite the clear potential for a direct take of occupied habitat and also potentially of individual birds, Tetra Tech states that the "construction and operation of the Facility is not likely to affect the northern harrier." [bold face is Tetra Tech's] (Tetra Tech 2020a Section 4.2.4). Despite the NYSDEC’s take determination, Hecate has not submitted revised versions of Exhibit 22 or the Habitat Assessment and Preliminary Impact Determination Report or Avian Cumulative Impact Assessment Report.

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4.0 NET CONSERVATION BENEFIT PLAN (NCBP)

4.1 Overview

The proposed Greene County Solar Facility is located primarily within a Winter Raptor Concentration Area, and within a designated raptor habitat identified by the New York Natural Heritage Program (NYNHP). Winter raptor surveys, conducted over decades, demonstrate the presence of both the endangered Short-eared Owl and the threatened Northern Harrier. The NYSDEC considers the Facility area occupied habitat and has determined that construction and operation of the Facility will likely result in a take of threatened and endangered (T&E) species through the adverse modification of habitat. The Facility’s presence will prevent these T&E species from being able to use the habitat to the same extent and will negatively affect their ability to perform essential behaviors in this area, specifically successfully foraging during overwintering.

NYSDEC’s determination triggers the stipulated requirement for an avoidance, minimization and mitigation plan that results in a net conservation benefit (“NCB”) to the affected species. A NCB is achieved when the adverse impacts of a proposed activity on a protected species or its occupied habitat are outweighed by positive impacts anticipated from the proposed mitigation measures. The primary goal to ensure the persistence of these T&E species in New York is the preservation and management of large open grassland habitat in breeding and wintering areas.

The Net Conservation Benefit Plan (NCBP) must include:

(1) the measures the applicant will undertake to avoid, minimize, and fully mitigate impacts to any species listed as endangered or threatened in this Part for which the incidental take permit application is being submitted. All proposed measures shall be capable of successful implementation, and shall be legally, technologically, economically, and biologically practicable; (2) data and information to ensure that the taking sought to be authorized by the incidental take permit will not reduce the likelihood of the survival or recovery of the species in New York; (3) a proposed method for monitoring the effectiveness of the plan; and

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(4) a description of the funding source, the level of funding, and the guarantee or assurance of funding that the applicant will provide to implement the endangered or threatened species mitigation plan including but not limited to bonds, insurance, or escrow.

The PNCBP for the Facility estimates 368 acres of adverse modification of existing occupied wintering raptor habitat and proposes a 215-acre Conservation Easement Area (CEA) to be put into conservation easement, and seven additional Grassland Management Areas (GMAs) of 10-47 acres in size (totaling 163 acres) that will be managed for the length of the lease agreement associated with the facility (TetraTech, 2020c.)

The Greene County Solar Facility involves a direct take of hundreds of acres of occupied winter raptor habitat. This take of occupied habitat must be mitigated. Typically, given the critical nature of this habitat and the needs of these area-sensitive species, any mitigation area should meet a goal of at least a 1:1 mitigation ratio for wintering raptor habitat. Indeed, the Greene County Grassland Conservation Plan set aside conservation mitigation lands at a higher ratio of 1.6:1 , setting a local precedent for the development of open habitats and grasslands in the area.2

4.2 Proposed Impact Mitigation Measures

Any final Net Conservation Benefit Plan (“NCBP”) must calculate the area of adverse impact and acreage that will be set aside as conservation lands to offset the adverse take of occupied habitat. In addition, a mitigation measure must be reasonably expected to have a positive impact on the species, and not just exceed the calculated loss of habitat.

4.2.1 Calculation of Adverse Impact and Mitigation Acreages Hecate calculated the area of adverse impact and proposed mitigation acreages in the PNCBP (Tetra Tech 2020c). The PNCBP estimates 368 acres of adverse modification, and a total 378 acres of mitigation area consisting of the 215 acre Conservation Easement Area (CEA) plus seven grassland management areas (GMAs) totaling an additional 163 acres.

2 Town of Coxsackie Zoning Code § 201-50.B.1(c) provides that on critical habitats such as grasslands, applicants shall seek to provide habitat protection on a 1:1 ratio, with one acre of protected habitat provided for every acre of habitat impacted by development. 15 Riveredge Environmental Inc. Hecate Greene NCBP Review

We reviewed these calculations and considered a take of raptor habitat to include any acreage inside a fence or PV array area, as well as any and all resulting fragments of suitable raptor habitat of under 25 acres. NYSDEC has expressed a preference for parcels of at least 100 acres, but in no case will fragments under 25 acres be considered as suitable mitigation lands. These small areas, often fragments and distant from core conservation areas, are simply too small to have meaningful conservation benefits for area sensitive species. Development within large areas of existing open and occupied raptor habitat with solar arrays may result in the creation of small habitat fragments. These new fragments, created by the construction of the Facility, must be considered a habitat take if they are less than 25 acres in size, whether they are inside the Facility boundary or outside the Facility boundary.

Mitigation lands fragmented by roads or overhead transmission lines have lower conservation value than contiguous lands that form a large central core conservation area with a low perimeter to area ratio. Such lands should not be counted toward the offset of a take of open upland habitat.

Many of the proposed GMAs fall in to this small fragment category, and actually constitute a habitat take rather than mitigation because after Facility construction they remain small, isolated habitats with no meaningful conservation value to the target species.

Using these calculation methods, we determined the combined acreage of adverse habitat modification to be approximately 495 acres, with only 287 acres of acceptable mitigation area proposed as an offset, resulting in a proposed mitigation ratio of 0.58:1.

GMA parcels that are of acceptable acreage appear to include GMA 1 (30 acres) and GMA 5 (47 acres). GMA 1 is not ideal upland mitigation land as it has a high perimeter to area ratio, is located adjacent to a railroad, and is mostly wetland (wet meadow). Additionally, the railroad is known as a source of Short-eared Owl mortality.

GMA areas 2, 3, 4, and 6 are not acceptable as they are of insufficient size or do not contain contiguous suitable habitat (GMA 7). GMA 7 has large areas of wetlands, some shrub lands or young forest, and does not provide contiguous suitable upland foraging lands for these T&E species of at least 25 acres.

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The overall value of the proposed mitigation areas is compromised by the fact that much of the proposed GMA areas are wetland, while the proposed developed area is almost exclusively upland habitat. While some wet meadow habitat is acceptable, this must be accompanied by suitable upland habitat. For shrub land or young forest habitats to count as upland mitigation, a commitment to brush and tree removal and conversion of these lands to open grasslands must be a part of the NCBP. In addition, the value of the core CEA is diminished by the proposed overhead transmission line, which visually and perhaps functionally fragments this core mitigation area.

Our assessment of the total take of occupied raptor habitat at Hecate is approximately 495 acres. Based on the fact that the entirety of the 827 acre Facility site can be considered occupied habitat, this means that the proposed Facility will adversely impact almost 60% of all raptor habitat within the Facility site.

4.2.2 Specific Recommendations for Mitigation It is a fundamental tenet of conservation science that the most useful conservation lands, especially for area sensitive species, are contiguous lands with low perimeter to area ratios anchored by a large central core area. The proposed GMA conservation lands south of the core CEA area are largely small isolated habitat fragments separated by PV arrays. To increase the value of the proposed mitigation lands, the core conservation CEA must be expanded and not be fragmented by roads or overhead transmission lines. To receive full acreage credit for the CEA, the overhead transmission line must be moved to the edge of the open habitat. The PV array area that lies between the CEA and GMA 5 should be moved to other parts of the property to create a larger contiguous CEA. Panels can potentially be sited in other proposed GMA areas (in particular GMA 6, with little wetland) that are isolated fragments and thus not effective for mitigation. In addition, consideration should be given to moving PV panels into GMA 1 and GMA 2 in exchange for expanding the contiguous CEA. Another option would be to move panels from the area that is south of GMA 3 to create a relatively large habitat mitigation area of approximately 55 acres that would include more upland habitat.

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GMA 7 is described as a Sleepy Hollow Lake Watershed buffer, but the conditions described to improve water quality could also occur under or between panels, given a commitment to sustainable management of the vegetation below and between panels. Thus, the western part (upland) could have more panels sited in it and still meet all the activities described as mitigating for water quality.

Even with the above potential changes to layout, Hecate's PNCBP would not achieve the desired 1:1 mitigation of occupied habitat for T&E species. To meet this ratio, additional off site mitigation must be provided so that a net conservation benefit is achieved. In the event a sufficient mitigation ratio cannot be obtained by a combination of on and off-site mitigation, we recommend establishing a mitigation fund, paid into by the applicant. This fund would be used to secure off site resources to achieve the effective and comprehensive mitigation required by the construction and operation of this Project.

4.2.3 Specific Practices The PCNBP must contain a firm commitment to conservation practices to benefit T&E species and not permit activities detrimental to this mission. Activities potentially not compatible with conservation include the proposed recreational trails in the CEA. Such trails within the mitigation lands are largely incompatible with the conservation of T&E species. In particular, the use of ATVs and snowmobiles should be prohibited in the CEA. Wintering raptors may be disturbed by walkers and skiers as well, especially if accompanied by dogs. Given that the intended purpose of the CEA is conservation of T&E species, these proposed recreational opportunities for the public are actually detrimental to the stated purpose of the CEA lands and should be removed from the NCBP.

One consistent concern in the overall design and layout of the proposed conservation lands is the small size and fragmentation of the landscape. The NCBP should include a plan to remove or thin hedgerows and fragmenting vegetation from mitigation parcels to increase contiguous habitat. All mitigation areas should be managed to promote the development of healthy grasslands. Seeding of conserved areas (as opposed to just mowing) is beneficial, but the NCBP must commit to the same practice in the solar array areas along with management to keep

18 Riveredge Environmental Inc. Hecate Greene NCBP Review a ground cover of sufficient height to provide cover for small mammals. In addition, the applicant should consider adding pollinator habitat through seeding and management within the panel array areas, commit to minimizing the use of herbicides to manage vegetation within the panel array areas, and commit to using wildlife permeable fencing around the perimeter of the Facility.

4.3 Post-Construction Monitoring

Any final NCBP must require the applicant to commit to and provide funding for both a Post Construction Avian Monitoring Plan to assess the impact of the proposed Facility on grassland birds, as well as post-construction monitoring to assess the effectiveness of the NCBP. The applicant must provide funding for the cost of maintaining grassland habitat for at least the life of the Facility as well as costs of monitoring and reporting. Post construction raptor and grassland breeding bird monitoring must:

 Continue at least 10 years post-construction;  Include panel array areas as well as the mitigation lands;  Follow established NYSDEC methodology;  Provide results to NYSDEC, Greene Land Trust, Scenic Hudson, and other interested conservation and/or research entities; and  Include the full time periods important for surveys. For overwintering raptors, this extends to the end of March and beyond if the birds are still present. For other species, this should include spring and fall migration periods to learn of the impact of the developments on migratory birds.

The NCBP must also commit to, and provide a methodology for, monitoring of the habitat that is being managed. This will ensure that the goals of habitat management are achieved, and will provide information that will allow for adaptive management to maximize the habitat benefits. This information should be part of Habitat Management Reporting section of the NCBP.

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4.4 Land Conservation and Commitment to Habitat Management

The PNCBP contains multiple and inconsistent possible approaches to land conservation and habitat management. The core conservation area represented by the CEA should be purchased in fee by the applicant, with a conservation easement in place as well, not either-or as suggested in the PNCBP. An easement alone will not be an effective tool to ensure the necessary management. Fee acquisition followed by transfer to an established conservation entity such as a land trust may suffice without imposition of a conservation easement.

The language in the PNCBP describing the CEA only implies permanent protection (in contrast to GMAs). The NCBP must commit to the permanent protection of the core CEA. In addition, if any GMAs are counted towards mitigation offsets they should be similarly protected and managed to maximize habitat use.

To achieve a true net conservation benefit, the financial assurance and burden of costs must be detailed in any final NCBP. The PNCBP proposes alternative possibilities that all appear to place some of the financial burden for mitigation on other entities. The applicant should commit to cover all costs of permanent and temporary land conservation and of habitat management with no burden on the conservation easement or non-profit fee holder. Managing and monitoring of the mitigation lands plus the panel array areas are the responsibility of the developer. Shifting the cost and burden of mitigation to third parties is not acceptable.

In addition, any final NCBP must demonstrate that the take of occupied wintering raptor habitat will not reduce the likelihood of the survival or recovery of the species in New York. The PNCBP is deficient in this regard and fails to address this regulatory requirement at all.

The PNCBP and the proposed avoidance, minimization and mitigation measures it contains do not results in a net conservation benefit to the affected species as it stands. In order to meet the regulatory requirements, it must be revised in accordance with the recommendations in this report.

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5.0 CUMULATIVE IMPACTS

Two industrial scale solar projects are proposed for the Coxsackie Flats grasslands, which, as described, is one of the last large, contiguous grassland habitat areas identified in the Hudson River corridor. One project is the Hecate Energy Greene County Solar Facility, and the other is the 100 MW Flint Mine Solar Facility (“FMS”) (Case 18-F-0087), which is proposed to be located just to the west. The combined projects will have almost 1,000 acres of disturbance or solar panels.

Much of the disturbed areas are habitats occupied by the threatened Northern Harrier and the endangered Short-eared Owl. In total, these two projects encompass 1,534 acres of occupied Northern Harrier habitat and 1,155 acres of occupied Short-eared Owl habitat.

Combined, the two projects will adversely impact 763 acres of Northern Harrier habitat and 588 acres of Short-eared Owl habitat. The cumulative impact is the take of 50% of occupied Northern Harrier habitat and 51% of occupied Short-eared Owl habitat.

The Hecate Greene County Solar project, although smaller in area and nameplate capacity than the Flint Mine Solar project, has the largest impact and take of occupied threatened and endangered species habitat in the area. Hecate Greene will adversely impact fully 60% of Northern Harrier Habitat and Short-eared Owl habitat under project control.

Occupied Habitat Percent of Habitat Occupied Northern Harrier Adversely Occupied Habitat (acres) Affected (acres) Adversely Affected Flint Mine Solar 707 268 38% Hecate Greene Solar 827 495 60% Cumulative Impact 1,534 763 50%

Occupied Habitat Percent of Habitat Occupied Short-eared Owl Adversely Occupied Habitat (acres) Affected (acres) Adversely Affected Flint Mine Solar 328 93 28%

Hecate Greene Solar 827 495 60%

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Cumulative Impact 1,155 588 51%

These projects, each individually and together cumulatively, will result in a significant overall loss of currently occupied threatened and endangered species habitat in this important area, even with mitigation. The Greene County Grassland Habitat Management Plan (“Plan”) (Strong, et al. 2014) identifies large blocks of grassland habitat. Of the three contiguous blocks of habitat identified in the Plan that are greater than 500 acres, the two blocks with the most raptor observations are impacted by these projects (See Strong, K., R. VanSchaack, and I. Haeckel. 2014, Figs 5-2 and 5-3). This results in a substantial cumulative impact to the Greene Grasslands populations of these two raptor species. Such development is exactly what the Plan cautioned would be detrimental to the region.

The significant take of occupied habitat for the impacted threatened and endangered species calls into question the long-term viability of this important winter raptor concentration area. If both of these projects move forward, significant and effective on-site and/or off-site mitigation must be provided to prevent this take of occupied habitat from potentially reducing the survival or recovery of these species in New York State. Therefore, the NCBP for each project must maximize the acreage of occupied habitat provided in proposed mitigation areas to prevent real threats to the survivability of these species in the area. These mitigation areas must not only be conserved, but managed and monitored in order to provide a true net conservation benefit as required.

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6.0 REFERENCES

DeVault, T. L., T. W. Seamans, J. A. Schmidt, J. L. Belant, B. F. Blackwell, N. Mooers, L. A. Tyson, L. Van Pelt. 2014. Bird use of solar photovoltaic installations at US airports: Implications for aviation safety. Landscape and Urban Planning 122:122-128.

Drennen, S. R. 1981. Where to find birds in New York State: the top 500 sites. Syracuse University Press, Syracuse, New York. 499 pp.

Gasparatos A, Doll CNH, Esteban M, Ahmed A & Olang TA. (2017). Renewable energy and biodiversity: implications for transitioning to a green economy. Renewable and Sustainable Energy Reviews, 70: 161 – 184.

Lovich, J. E., & Ennen, J. R. 2011. Wildlife conservation and solar energy development in the Desert Southwest, United States. BioScience, 61, 982–992.

New York State. 2016. Open Space Conservation Plan. Prepared by the Department of Environmental Conservation, the Office of Parks, Recreation and Historic Preservation, with partnering agencies the Department of Agriculture and Markets, the Department of Transportation, and the Department of State. 321. pp. Available at: 2016 NYS Open Space Conservation Plan

Peles and Barrett. 1996. Effects of vegetative cover on the population dynamics of meadow voles. Journal of Mammalogy 77(3):857-869.

Smith, K. G., S. R. Wittenberg, R. B. Macwhirter, and K. L. Bildstein. 2011. Hen/Northern Harrier (Circus cyaneus/hudsonius), version 2.0. In The Birds of North America (A. F. Poole, Editor). Cornell Lab of Ornithology, Ithaca, NY, USA. https://doi.org.10.2173/bna.210

Smith, K. G., S. R. Wittenberg, R. B. Macwhirter, and K. L. Bildstein. 2020. Northern Harrier (Circus hudsonius), version 1.0. In The Birds of the World (P. G. Rodewald, Editor). Cornell Lab of Ornithology, Ithaca, NY, USA. https://doi.org/10.2173/bow.norhar2.01

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Strong, K., R. VanSchaack, and I. Haeckel. 2014. Greene County Grassland Habitat Management Plan. Greene County Soil and Water Conservation District and Greene County Habitat Advisory Committee. Cairo, NY. 82 pp. Available at www.greenelandtrust.org/images/stories/PDF/GreeneCountyGrasslandPlanFINAL6-20- 2014.pdf

Taylor, R., J. Conway, O. Gabb, and J. Gillespie. 2019. Potential ecological impacts of ground- mounted photovoltaic solar panels: An introduction and literature review. BSG Ecology. Online at https://www.bsg-ecology.com/wp-content/uploads/2019/04/Solar-Panels-and- Wildlife-Review-2019.pdf

Tetra Tech, Inc. 2019a. Habitat Assessment and Preliminary Impact Determination for Federal and State Protected Species for the Greene County Solar Facility, Town of Coxsackie, Greene County, New York. December 2019. Report prepared for Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, Hecate Energy Greene 3 LLC. 621 W. Randolph Street, Chicago, Illinois 60661. December, 2019. 87 pp.

Tetra Tech, Inc. 2020a. Habitat Assessment and Preliminary Impact Determination for Federal and State Protected Species (Revision 2.0) for the Greene County Solar Facility, Town of Coxsackie, Greene County, New York. March 2020. Report prepared for Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, Hecate Energy Greene 3 LLC. 621 W. Randolph Street, Chicago, Illinois 60661. March, 2020. 29 pp.

Tetra Tech, Inc. 2019b. Avian Cumulative Impact Assessment Report for the Greene County Solar Facility, Town of Coxsackie, Greene County, New York. December 2019. Report prepared for Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, Hecate Energy Greene 3 LLC. 621 W. Randolph Street, Chicago, Illinois 60661. December, 2019. 44 pp.

Tetra Tech, Inc. 2020b. Avian Cumulative Impact Assessment Report (Revision 2.0) for the Greene County Solar Facility, Town of Coxsackie, Greene County, New York. March 2020. Report prepared for Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, Hecate Energy Greene 3 LLC. 621 W. Randolph Street, Chicago, Illinois 60661. March, 2020. 22 pp.

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Tetra Tech, Inc. 2020c. Preliminary Net Conservation Benefit Plan for the Greene County Solar Facility, Town of Coxsackie, Greene County, New York. July 2020. Report prepared for Hecate Energy Greene 1 LLC, Hecate Energy Greene 2 LLC, Hecate Energy Greene 3 LLC. 621 W. Randolph Street, Chicago, Illinois 60661. July 2020. 39 pp.

Walston, L. J., K. E. Rollins, K. E. LaGory, K. P. Smith, and S. A. Meyers. 2016. A preliminary assessment of avian mortality at utility-scale solar energy facilities in the United States. Renewable Energy 92:405-414.

Wiggins, D. A., D. W. Holt, and S. M. Leasure. 2006. Short-eared Owl (Asio flammeus), version 2.0. In The Birds of North America (A. F. Poole, Editor). Cornell Lab of Ornithology, Ithaca, NY, USA. https://doi.org.10.2173/bna.62

Wiggins, D. A., D. W. Holt, and S. M. Leasure. 2020. Short-eared Owl (Asio flammeus), version 1.0. In The Birds of the World (S. M. Billerman, Editor). Cornell Lab of Ornithology, Ithaca, NY, USA. https://doi.org/10.2173/bow.sheowl.01

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