Lead Agency Dispute: Proposed Hounsfield Wind Farm, Town of Hounsfield, Jefferson County
New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law
PROJECT: Proposed Hounsfield Wind Farm, Town of Hounsfield, Jefferson County
DISPUTING AGENCIES: New York State Department of Environmental Conservation and Town of Hounsfield Planning Board
This decision to designate the New York State (NYS) Department of Environmental Conservation (DEC) as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and Part 617 of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR Part 617, or Part 617).
The subject of this dispute is the proposal by Upstate NY Power Corporation (Upstate Power) to construct and operate Hounsfield Wind Farm, which would be a wind-powered electric generating facility on Galloo Island in the Town of Hounsfield, Jefferson County, New York. Galloo Island is a sparsely inhabited island containing only three residences, situated in Lake Ontario approximately 12 miles from the Town of Hounsfield mainland. Upstate Power proposes to install and operate up to 77 wind turbines, with a generating capacity of up to 280 megawatts (MW) of electricity. The project would also include construction on Galloo Island of new roads; a docking slip; a 12-unit townhouse development; additional temporary housing for construction workers; and operations, maintenance and infrastructure facilities including a mess hall, office, helipad, infirmary, sewage treatment and collection system, and potable water system including treatment plant, storage and distribution facilities. Also included in the project proposal, but subject to review by the NYS Public Service Commission under NYS Public Service Law Article VII and so exempt from SEQR, are proposed new underwater and mainland transmission lines to connect the wind generating facilities with the NYS electric grid.
The role of lead agency may be assumed only by an involved agency with authority to make discretionary decisions about one or more components of the overall plan. While there are multiple "potentially involved" agencies likely to have approval or permitting authority for this project as currently proposed, only the DEC and the Town of Hounsfield Planning Board (Planning Board) have expressed a desire to act as lead agency for the environmental review of this proposal. The Watertown District Office of the NYS Department of Health wrote in support of the Planning Board's request to be designated as lead agency for review of the proposed project.
The Planning Board has jurisdiction, through site plan review under the Town of Hounsfield Zoning Law, to approve the proposed wind farm including all construction of operation and maintenance facilities and infrastructure. Generally, site plan review jurisdiction under the Town of Hounsfield Zoning Law looks at the design and layout of development on a parcel of land, its relationship to natural features and impact on adjacent uses. See Town of Hounsfield Zoning Law §615.
The DEC, through its role as the state natural resources and environmental quality permitting agency, will be responsible for permitting construction disturbances to protected resources under ECL Article 24 (Freshwater Wetlands), Article 15 (Protection of Waters), and potentially Article 11 (Endangered Species); Water Quality Certification under the United States (U.S.) Clean Water Act (CWA) Section 401; and permitting of the public water and sewage treatment systems under ECL Articles 17 and 15 respectively.
ECL §8-0111(6) states: "When an action is to be carried out by two or more agencies, the determination of whether the action may have a significant effect on the environment shall be made by the lead agency having principal responsibility for carrying out or approving such action * * *. In the event that there is a question as to which is the lead agency, any agency may submit the question to the commissioner and the commissioner shall designate the lead agency, giving due consideration to the capacity of such agency to fulfill adequately the requirements of this article." The DEC has promulgated criteria at 6 NYCRR 617.6(b)(5) to further explain and articulate the statute's requirements. Thus, in resolving a lead agency dispute pursuant to ECL §8-0111(6) and 6 NYCRR 617.6(b)(5), I am guided by the three criteria listed in order of importance in 6 NYCRR 617.6(b)(5)(v):
- whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
- which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
- which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
Nature of Impacts
The first criterion is whether the potential impacts from the proposed action are of local, regional or statewide significance. The site of the proposed project is located entirely within the boundaries of the Town of Hounsfield. In this case, however, the actual wind turbines and most support components, including new housing and infrastructure for construction and operational staff, are proposed to be located on an island within Lake Ontario, 12 miles offshore. The entire context of this project is, therefore, clearly different from nearly all wind farm projects previously reviewed in New York State. In the only other lead agency dispute decision where DEC and a local government entity were the disputants for lead agency on a wind farm project [Steuben County IDA v. DEC (January 17, 2006)], Commissioner Sheehan chose the Steuben County Industrial Development Agency ("Steuben County IDA") over the DEC. That decision is readily distinguishable from the one at hand. The Steuben County IDA's jurisdiction was predicated on its role in negotiating, authorizing and implementing a proposed Payment in Lieu of Taxes (PILOT) agreement for the wind farm. At the time of the dispute, DEC's only likely jurisdiction was based on a water quality certification pursuant to the federal Clean Water Act. Unlike here, operational impacts were determined to be mostly local because of the geographic location of the proposed wind farm among scattered permanent and seasonal residences and close to a small village. Further, DEC's breadth of authority, based only on the water quality certification, was extremely limited as compared to the jurisdictions described above. Finally, in the Steuben County IDA decision, the Commissioner did not reach the third lead agency criterion as she was able to resolve the dispute based only on the first two criteria.
Potential impacts on neighboring residents typically associated with wind farm construction and operation such as traffic increases, possible traffic routing changes, noise, shadow-flickering effects, and fugitive dust are not anticipated to be significant for this project. While such impacts could affect the few permanent residents who would reside on the island following construction, they are not expected to affect mainland residents. Further, the majority of residents who would remain on the island year-round after construction would be project staff.
Construction impacts on the island would generally result from installation of turbines and access roads as well as development of support facilities and services for a temporary construction-phase population of 200-250 workers and a smaller crew of long-term operation and maintenance workers. These support developments would include, but are not limited to, delivery and setup of temporary housing; development of a regulated public water supply to provide potable water; development of a wastewater collection and treatment system; and construction of some permanent housing. Impacts of all the construction activities would include typical local effects, but would also include potential impacts of broader concern based on the need to deliver all materials, supplies and equipment by water from nearby or more remote ports. Substantial increases in boat traffic have the potential to affect aquatic habitats and species.
Additionally, construction risks compromising valuable state-regulated habitat resources as substantial areas throughout the island are shown as wetlands on the applicant's general site plan. Further, Galloo Island is the largest generally-undeveloped island in Lake Ontario, providing nesting, feeding and resting habitat for waterfowl, and twenty-eight acres of the island were conveyed to the DEC by the U. S. Coast Guard as a reserve for conservation of wildlife other than migratory birds. Offshore, there are fish spawning areas in the waters between the island and the mainland where docking facilities are proposed. Construction-associated impacts could thus endanger a variety of habitats on the island of value regionally and even statewide. In addition, construction of a water supply system as well as installation of a public wastewater treatment system sufficiently-sized to serve the construction staff on an island raises water quality as well as public safety concerns. Since Lake Ontario is a state resource, this potential impact is of more than local significance.
Other impacts typically associated with wind farm operation include potential bird and bat mortality and aesthetic or visual impacts. Avian mortality, especially to migratory birds, is an impact with potential regional significance because Lake Ontario is within a major flyway for many migratory birds. DEC notes that the New York State Natural Heritage Program data shows the existence on the island of nesting Upland Sandpipers, a state-listed threatened species. The island is also within the range of the Common Tern, another state-listed threatened species known to nest on Little Galloo Island located approximately one mile from the project area. Any direct mortality to those species or losses and damages to their habitats would be of potential statewide concern. Additionally, continuing higher-than-current levels of boat traffic between the island and the mainland, to support the wind facility and its resident maintenance and operation staff, could lead to ongoing disturbances of state-protected aquatic species and their habitats.
Construction and post-construction aesthetic or visual impacts, if they were to occur, would likely affect residents and vantage points within the town boundaries of Hounsfield, including users of Galloo Island and other nearby islands. These impacts may also affect other mainland vantage points beyond Hounsfield's borders. Thus, this potential impact is likely to be of both local and regional significance.
Beyond typical construction and wind facility operational impacts, the Planning Board also identified the need to make unique arrangements based on the island location for provision of emergency services (police, fire and medical) for the project and its workers. Weather in this area of the state is frequently so severe that responding to emergency calls from the island could be very challenging, even dangerous, and thus reliance on existing emergency service programs would likely cause a serious strain on current emergency management service providers. Because fire and emergency medical services are primarily provided by volunteers with mutual-aid agreements among multiple companies or districts, this potential impact is of regional as well as local significance.
In addition to the above, DEC notes that the island is identified as an area of probable archeological sensitivity. The mainland along this part of Lake Ontario, as well as nearby Stony Island, is identified by the New York State Office of Parks, Recreation and Historic Preservation (OPRHP) as being sensitive for the presence of archeological resources, and the light house on Galloo Island is a National Register of Historic Places listed property. The area has a recognized history of Native American and European settlement activity. Any potential impacts on archeological or historic resources could be of local, regional or even statewide significance.
Finally, the proposed underwater transmission lines from the island to the mainland, their landfall, and additional above-ground lines to the interconnection with the NYS grid will potentially impact aquatic and terrestrial habitats as well as local residents. These actions, however, are the components subject to Public Service Commission (PSC) review and so are not being considered in this analysis under SEQR.
Given the range of potential impacts described above, I conclude that potential impacts associated with this project are primarily of regional and even statewide significance and, thus, that DEC would be most appropriately designated as lead agency under this criterion.
Governmental Powers for Investigation of Impacts
The second criterion is which agency has the broadest governmental powers for investigation of the impacts of the proposed action. The Planning Board asserts that it has jurisdiction over all aspects of this project through site plan review. The Planning Board must approve the layout and construction of all physical facilities, temporary and permanent, including siting and installation of each of the turbines.
DEC will have jurisdiction under ECL Article 15 (Protection of Waters) for all work in the water, including docking slip construction. Likely impacts to the numerous and extensive wetlands on the island, from construction of the various components of the project including turbine sites, water and wastewater systems, housing, and all roadways, would require approvals from DEC under ECL Article 24 (Freshwater Wetlands) and U. S. CWA Section 401 (Water Quality Certification). Additionally, the proposed new public water supply and wastewater treatment systems should require DEC approvals, which could be determinative of whether the project as proposed could even proceed. Further, should additional, detailed studies identify specific project design or operational impacts on NYS-threatened or -endangered species or their habitats, ECL Article 11 permit(s) would be required.
Based on the approvals needed from both the Planning Board and DEC, I find no significant differences between the two agencies in their governmental powers to investigate the impacts of the proposed action. Thus, while the focus of the Town's jurisdiction is local site plan considerations described above and the focus of DEC's jurisdictions is on the protection of a range of natural resources, the two agencies have roughly equivalent powers to investigate the impacts of the proposed action. Accordingly, my analysis of the second lead agency criteria does not overcome the strong basis for designation of DEC based on the first criterion.
Capability for Providing the Most Thorough Environmental Assessment of the Proposed Action
The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. The Planning Board has staff and professional expertise on board to evaluate this project through the perspective of its site plan review powers and can contract out for additional assistance, if needed, for a more extensive SEQR review. The DEC has staff on board who are specialized in assessing environmental habitat issues, particularly including endangered and threatened species as well as aquatic and upland habitats. Further, DEC also has in-house staff who are already well versed in evaluating the impacts of wind farm siting and construction, including established working relationships with the multiple other agencies of local, state and federal government who are typically involved in assessment of wind farm proposals. Lastly, if necessary, the DEC can contract for additional, specialized expertise.
In weighing this criterion, I note the concern of the Planning Board for ability of local entities to participate in the review should the DEC Central Office be designated as lead agency. While the DEC Central Office is admittedly somewhat distant from the project area, this does not mean that DEC would be unwilling or unable to reach stakeholders and provide local opportunities for the public and stakeholders to express their concerns and interests during the review of the project. Indeed, DEC Central Office staff have long experience providing substantial local information and involvement during the reviews of other major projects located throughout the state. I am therefore confident that DEC can and will provide substantial and effective opportunities for public information and involvement.
Accordingly, as to the third criterion, I conclude that the DEC is the more appropriate agency to serve the role of lead agency. The in-house knowledge and experience of DEC staff with habitat issues and wind farm siting generally will provide it with significant advantages in designing and overseeing the SEQR review of this project.
Based on the first and third criteria, therefore, it is my decision that the DEC through its Central Office is best able to serve the role of lead agency for the SEQR review of this proposed wind farm project. This decision does not in any way limit the jurisdiction of any of the several other involved agencies to actively participate in the continued SEQR review of this proposed action. I thus encourage the Town of Hounsfield Planning Board, in particular, to both participate and clearly articulate any concerns it may have to the DEC. Further, I specifically direct DEC staff to develop and implement information and participation opportunities for both the general public and local agencies. Through cooperation and participation, I expect that the concerns of any involved agencies will be represented in the SEQR record developed by the DEC acting in its role of lead agency for the proposed construction and operation of this facility.
Dated: April 24, 2008
Albany, New York
Alexander B. Grannis, Commissioner
Town of Hounsfield Planning Board
Jack Nasca, NYS DEC, Division of Environmental Permits
Dennis G. Whelpley, Esq., Schwerzmann & Wise, P.C., Town Attorney, Town of Hounsfield
Town of Hounsfield Town Board
Douglas Ward, Esq. - Young, Somers LLC (representing project sponsor)
Jefferson County Industrial Development Agency
Scott A. Docteur, PE, Director, Regional Planning and Program Management, NYS DOT, Region 7
Thomas Boxberger, District Director, NYS DOH, Watertown District Office
John Carstens, Sr. Environmental Analyst, Bureau of Land Management, NYS OGS
James Austin, Chief, Environmental Certification and Compliance, State of New York Department of Public Service (Attn.: A. Davis)
Judith Drabicki, Regional Director, NYS DEC Region 6
Larry Ambeau, Regional Permit Administrator, NYS DEC, Region 6
Lawrence H. Weintraub, Esq., Office of General Counsel, NYS DEC, Albany
B. A. Hughes / R. Ewing, Env. Permits, NYS DEC, Albany