1 BEFORE THE ENERGY FACILITY SITING COUNCIL OF THE STATE OF OREGON 2 3 In the Matter of the Request for FRIENDS OF THE COLUMBIA GORGE, 4 Amendment 4 of the Site Certificate for ET AL.’S REQUEST FOR A the SUMMIT RIDGE WIND FARM CONTESTED CASE PROCEEDING 5 6 7 I. INTRODUCTION 8 Pursuant to OAR 345-027-0071, Friends of the Columbia Gorge, Oregon Wild, the 9 Oregon Natural Desert Association, Central Oregon LandWatch, and the East Cascades 10 11 Audubon Society (collectively, “Requesters”) request that the Energy Facility Siting Council 12 (“EFSC” or “Council”) conduct a contested case proceeding on the Request for Amendment 4 of 13 the Site Certificate for the Summit Ridge Wind Farm (“Project”), and allow Requesters to 14 participate as parties in the proceeding.1 15 16 It has been nearly ten years since the preliminary application for this Project was filed, 17 and nearly eight years since the Project was first approved. As a point of reference, in 2009, 18 when the Project was first applied for, Ted Kulongoski was Governor of Oregon, and Barack 19 Obama was in his first year as President of the United States. Since then, much has changed. The 20 Project has been abandoned by the initial developer, sold and transferred to a new owner 21 22 (“Pattern Energy,” “Pattern,” or “Applicant”),2 and the Project’s deadlines for beginning and 23 1 24 Requesters incorporate into this Request for Contested Case their February 21, 2019 comment letter to the Council (attached hereto as Exhibit A), the February 21, 2019 comment letter of Shawn 25 Smallwood, PhD to the Council (attached hereto as Exhibit B), and the oral comments of Friends’ Senior Staff Attorney Nathan Baker at the February 22, 2019 public hearing. 26 2 The site certificate holder is Summit Ridge Wind, LLC. According to the Request for Amendment, Summit Ridge Wind, LLC is a wholly owned subsidiary of Pattern Renewables 2 LP, which 27 is a subsidiary of Pattern Energy Group 2 LP. Request for Amendment 4 (“Request for Amendment” or 28 “Application”) at § 1.0. Reeves, Kahn, Hennessey & Elkins 4035 SE 52nd Ave.; P.O. Box 86100 REQUEST FOR CONTESTED CASE Portland, OR 97286 Page 1 Tel: 503.777.5473; Fax: 503.777.8566 1 completing construction have each been extended—twice. Pattern now asks the Council for a 2 third round of extensions, yet refuses to first comply with applicable law by updating and 3 rectifying the Project’s outdated and inadequate surveys, data, and proposed mitigation and 4 5 monitoring methods for the protection of wildlife, plants, and habitat. Pattern continues to fail or 6 refuse to comply to this very day, despite feedback from Council Member Roppe (at the 7 February 22, 2019 public hearing) that she would like to see updated surveys for the Project, as 8 well as written comments on the record of the public hearing from more than 900 people 9 criticizing Pattern’s failures to update, evaluate, and disclose current conditions at the Project site 10 11 and vicinity. 12 The majority of the issues identified by Requesters below involve the Project’s potential 13 impacts on wildlife, plants, and habitat. More specifically, the majority of the issues involve 14 Pattern’s numerous failures to provide current information regarding these impacts, to 15 16 demonstrate current compliance with applicable laws and rules; and to update and finalize 17 proposed monitoring and mitigation plans and measures and submit them for agency review and 18 approval prior to the Council’s final order—all of which are required by the Council’s rules and 19 other applicable law.3 Among other problems, the bird and bat use surveys in the proposed wind 20 21 turbine areas, as well as the habitat mapping and categorizations, are all now a decade old, and 22 the surveys for raptor nests and threatened and endangered plants are all three years old. None of 23 3 Any request for an extension of a construction deadline for an energy facility—such as the 24 extensions requested by Pattern here—requires review of the facility under the same standards and requirements as if it were a new facility. The Council sometimes refers to this concept as a “general re- 25 opener” requirement. See OAR 345-027-0075(2)(b) (“For a request for amendment to extend the deadlines for beginning or completing construction, after considering any changes in facts or law since 26 the date the current site certificate was executed, [the applicant must demonstrate by a preponderance of evidence that] the facility complies with all laws and Council standards applicable to an original site 27 certificate application.”). 28 Reeves, Kahn, Hennessey & Elkins 4035 SE 52nd Ave.; P.O. Box 86100 REQUEST FOR CONTESTED CASE Portland, OR 97286 Page 2 Tel: 503.777.5473; Fax: 503.777.8566 1 these outdated surveys and data have been proven to reflect current conditions—and moreover, 2 even when they were prepared, they failed to sufficiently disclose and evaluate conditions at the 3 time. These surveys and data must be rectified and updated, in part in order to reflect the changes 4 5 in conditions in the vicinity of the Project site and at the proposed habitat mitigation parcels 6 (including changes caused by significant wildfires in 2018), the changes in best available science 7 and technologies for identifying and protecting wildlife and habitat; and the changes in agency 8 guidance and policies for evaluating and protecting wildlife and habitat. Despite these changes 9 and the substantial passage of time, Pattern utterly fails to demonstrate current compliance with 10 11 the applicable laws and rules. 12 The Council should conduct a contested case, which will allow the disputed evidentiary, 13 legal, and policy issues to be fully vetted and resolved by the Council (with the assistance of a 14 hearing officer), rather than abdicating these issues to the Oregon Supreme Court to resolve on 15 16 first impression. Furthermore, a contested case is needed to allow Requesters to seek from 17 Pattern discoverable information likely to bear on compliance with the applicable laws and rules; 18 Requesters have no other means of obtaining such information and presenting it to the Council. 19 See OAR 345-015-0023(5)(c), 137-003-00568(4) OAR 137-003-0025(4). Requesters recognize 20 21 that it is rare for the Council to hold a contested case on proposed amendments to site 22 certificates. However, Requesters implore the Council to do so here, given the numerous unique 23 and heavily disputed issues involving this controversial Project. 24 25 / / / 26 / / / 27 28 / / / Reeves, Kahn, Hennessey & Elkins 4035 SE 52nd Ave.; P.O. Box 86100 REQUEST FOR CONTESTED CASE Portland, OR 97286 Page 3 Tel: 503.777.5473; Fax: 503.777.8566 1 II. IDENTIFICATION OF REQUESTERS 2 A. Friends of the Columbia Gorge 3 Friends of the Columbia Gorge (“Friends”) is a nonprofit Oregon corporation with 4 5 approximately 7,000 members. Friends’ mission is to vigorously protect the scenic, natural, 6 cultural, and recreational resources of the Columbia River Gorge. Friends fulfills this mission by 7 ensuring strict implementation of the Columbia River Gorge National Scenic Area Act and other 8 laws protecting the region of the Columbia River Gorge; promoting responsible stewardship of 9 Gorge land, air, and waters; encouraging public ownership of sensitive areas; educating the 10 11 public about the unique natural values of the Columbia River Gorge and the importance of 12 preserving those values; and working with groups and individuals to accomplish mutual 13 preservation goals. 14 15 B. Oregon Wild 16 Oregon Wild is a nonprofit Oregon corporation with more than 20,000 members and 17 supporters. Oregon Wild’s mission is to protect and restore Oregon’s wildlands, wildlife and 18 waters as an enduring legacy for all Oregonians. Founded in 1974, Oregon Wild has been 19 20 instrumental in securing permanent legislative protection for some of Oregon’s most precious 21 landscapes, including approximately two million acres of federally designated wilderness areas 22 and almost 1,800 miles of federally designated wild and scenic rivers. Oregon Wild works to 23 maintain and enforce environmental laws, while building broad community support for its 24 25 campaigns. 26 / / / 27 28 / / / Reeves, Kahn, Hennessey & Elkins 4035 SE 52nd Ave.; P.O. Box 86100 REQUEST FOR CONTESTED CASE Portland, OR 97286 Page 4 Tel: 503.777.5473; Fax: 503.777.8566 1 C. Oregon Natural Desert Association 2 The Oregon Natural Desert Association (“ONDA”) is a nonprofit, public interest 3 organization whose mission is to protect, defend, and restore Oregon’s high desert for current 4 5 and future generations. ONDA represents more than 10,000 members and supporters. 6 D. Central Oregon LandWatch 7 Central Oregon LandWatch (“LandWatch”) is a conservation organization with more 8 than 200 members that has advocated for the preservation of natural resources in Central Oregon 9 10 for more than thirty years. LandWatch plays a vital role in achieving a responsible, balanced 11 approach to planning for and conserving Central Oregon’s land and water resources, while 12 recognizing the needs of future generations. LandWatch works to protect and conserve the 13 region’s ecosystems and wildlife habitats; to foster thriving, sustainable communities; and to 14 15 spread the costs and benefits of growth equitably across the community as a whole. 16 E. East Cascades Audubon Society 17 The East Cascades Audubon Society (“ECAS”) is a nonprofit organization with 18 19 approximately 400 members. ECAS is involved in conservation projects throughout Central 20 Oregon and promotes enjoyment of birds, birdwatching, and habitat improvement.