NEW YORK STATE BOARD ON ELECTRIC GENERATION

SITING AND THE ENVIRONMENT

IN THE MATTER OF: Case 15-F-0327

Application of Galloo Island Wind, LLC

for a Certificate of Environmental Compatibility
and Public Need to Construct a
Wind Electric Generating Facility in the
Town of Hounsfield, Jefferson County, New York

RESPONSE OF APPLICANT GALLOO ISLAND WIND, LLC

TO SECOND MOTION TO DISMISS
BY CLIFFORD P. SCHNEIDER

Submitted by:

YOUNG/SOMMER LLC

James A. Muscato II, Esq.

Jessica Ansert Klami, Esq.
Attorneys for Galloo Island Wind, LLC
Five Palisades Drive
Albany, NY 12205
Phone: (518) 438-9907 ext. 243
imuscato@voungsommer.com

Dated: December 6,2018

I. Introduction

This response is submitted on behalf of Galloo Island Wind, LLC ("Applicant") in response

to Clifford P. Schneider's ("Schneider") Second Motion for Dismissal.' In his submittal, Mr.

Schneider essentially repeats his arguments from his first motion to dismiss, claiming that the

Applicant has created uncertainty and has inaccurately characterized an eagle nest on Galloo Island

and that this undermines the Hearing Examiner's Ruling on his first motion to dismiss.

Mr. Schneider's reliance on field notes recently provided to the Applicant to argue that the

Applicant was "not only aware of the nest but had confirmation from their consultant that the nest

was in fact a bald eagle nest" is inaccurate. First, the Applicant did not possess this information and

was not aware ofthe content of the field notes until they were received in response to a request related

to Mr. Schneider's Information request^. Secondly, the Applicant was made aware of this potential

nest by the island's caretaker, evaluated the nest and concluded that it did not contain eggs or chicks

(i.e., was unproductive in 2017), which is consistent with the findings presented in the Stantec field

notes. There is nothing substantivelynew presented in the motion and the examiners have determined

the remedy for the nest information not being included in the Application is to postpone the hearing

and compel the Applicant to amend the Application.

Mr. Schneider's contentions about the understanding of the nest are belied by (1) the text of

the Ruling, (2) the site visit to Galloo Island where the nest was viewed by the Hearing Examiners

and the parties, (3) the site visit conducted by the New York State Department of Environmental

Conservation (NYSDEC), and (4) the Applicant's recognition in response to discovery demands and

to the first motion to dismiss where it indicated it would work with NYSDEC to implement

' The Motion is also submitted by ClaudiaMaurer and John Culkin althoughnot signed.
^Of note, the pictures Mr. Schneider used as a claimed basis for his second motion are pictures that Apex did not have
until the Motion was filed.

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minimization and mitigation measures to address the nest. As recognized by the Ruling to Mr.

Schneider's first motion, this effort includes moving project components to a setback distance

consistent with NYSDEC's 2016 plan for bald eagles.

Throughout discovery inthis proceeding the Applicant has responded torequests and engaged
with the parties in a manner consistent with the nest being a bald eagle nest. Furthermore, the

Applicant is actively working in furtherance of the Ruling on the first motion to update the
Application to discuss the eagle nest, update the take estimate, update proposed minimization

measures and update the proposed mitigation measures to address potential impacts to bald eagles.
The Applicant anticipates that the amendment will beavailable inthe next two weeks and will ensure
a full and complete record on the characterization of risk to eagles and provide for a full hearing on

appropriate minimization and mitigation measures to allow the Siting Board to make the required

Findings and Determinations required by the Public Service Law.

The Ruling to Mr. Schneider's first motion clearly sets forth the basis for denial of the

dismissal remedy requested by Mr. Schneider in this second motion, and there is no new information

which would require a different outcome on this motion.

II. Previous Motions

On September 13, 2018, Mr. Schneider submitted his first motion to dismiss the Galloo
Application claiming that the Applicant and its consultant "engaged in a deception" and omitted

important information about the presence of a potential bald eagle nest on Galloo Island. Then on
September 24, 2018, Mr. Schneider submitted a motion to postpone the hearing schedule until the
Applicant addressed the omitted information and amended the Application. By Ruling issued October
26, 2018, Mr. Schneider's motion to dismiss the Application was denied but his motion to postpone

the proceeding was granted and the Applicant was directed to amend its Application materials.

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Contrary to the contentions in Mr. Schneider's second motion, the Ruling makes it clear that because

the information regarding the existence of the nest was not included in the Application, the Applicant

was required to update the Application and address potential impacts associated with the nest in the

Application.

III. Previous Discovery

In his second motion, Mr. Schneider impartially quotes the Applicant's September 5, 2018,

discovery response regarding the eagle nest, attempting to create confusion as to the Applicant's

response. The full text of the response is included on page 5 of the Ruling, and plainly references

NYSDEC's 2016 Bald Eagle Conservation Plan and that prior to commencement of construction of

the Facility the Applicant "will conduct an aerial survey to determine the status of the nest and work

with NYSDEC to avoid impacts to nesting eagles...the Applicant is committed to working with

NYSDEC to minimize and mitigate impacts to bald eagles..." This response clearly considers that

the nest is a bald eagle nest. Furthermore, as outlined in the Ruling the Applicant has responded to

other discovery requests related to the nest and has sought confidential treatment of those responses

asthey contain information about the location ofthreatened and endangered species habitat, which is

a clearreference to baldeagles.^

IV. Application Amendment

As referenced above, the Applicant is currently updating its Application in accordance with

the Ruling issued onOctober 26,2018.'^ The amendment will update the take estimate for bald eagles
and will include additional minimization and mitigation measures aimed at addressing potential

^ The Applicant has been careful about referencing the presence of bald eagle habitat on Galloo Island in an effort to
minimizethe need for confidential filings not in an effort to deceive or create uncertainty.
*To the extent that the Examiners consider reliefother than denial ofthe motion, at a minimum, such decision is premature
pendingthe filing of the AmendedApplication.
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impacts to the nest. To be clear, these measures are being proposed to address potential impacts to
nesting bald eagles and are not generic measures for all avian species.

V. Analysis

a. Recent Discovery

On November 1, 2018, Mr. Schneider served the Applicant with CS-CM 12. In that request

Mr. Schneider asked the Applicant to "[p]lease contact Stantec andrequest they provide digital copies

of their field notes associated with their bald eagle point count survey during spring 2017."

Following this request, the Applicant contacted Stantec and requested digital copies of their

field notes from the eagle point count surveys. Field notes are, hand written observations, taken inthe

field during surveys by the individual biologist conducting the survey. These notes are then gathered

by the consultant and used to produce reports summarizing information obtained from the surveys.

Field notes of this type are not customarily provided to developers and the Applicant did not have a

copy ofthe field notes prior to the November request byMr. Schneider. Mr. Schneider's assertion

that the Applicant was aware of these photographs and the content of these notes in April 2017 is

inaccurate; never the less, the findings of the Stantec biologist are consistent with the findings of the

evaluation completed by WEST.

b. Nest Characterization

The Applicant has notasserted in response to discovery demands thatthe nestis not an eagle

nest or that there is a question as to whether the nest was in fact built by bald eagles. The term

"potential eagle nest" has been used to describe the Applicant's uncertainty when the nest was first

mentioned to the Applicant in April 2017 by the island caretaker, a non-expert with respect to avian

issues or identifying nests. The Applicant has been clear that no follow up action was taken as no

eggs, chicks or young were observed in the nest during the aerial evaluation and that based on the

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evaluation it was determined that the nest was unproductive in 2017. Of note, these conclusions are

consistent with Stantec's field note observations regarding the status of the nest in 2017. The

Applicant has not misled the parties or the Hearing Examiners with its discovery responses nor did

the previous ruling on Mr. Schneider's first motion consider that the nest was not a bald eagle nest.

In fact, the ruling noted that NYSDEC confirmed there is a bald eaglenest on the island. In addition,

the Ruling recognized and required the Applicant to take steps to address the eagle nest, which the

Applicant had agreed to do in its response to the Motion (page 5).

Mr. Schneider suggests that WEST'S aerial survey was an attempt to deliberately flush birds

andthenphotograph thenest documenting no eagles onthe nest. Thepurpose of the helicopter survey

was to conduct an aerial nest check as the Applicant was responding to information provided by the

island caretaker and did not know details regarding the nest. The nest check was carefully done by

qualified biologists. The aerial check technique is standard practice, and not likely to be disruptive if
done consistent with standard practices^. No notification to USFWS or NYSDEC is required for this

type of evaluation to occur. The biologists at WEST have years of avian and eagle experience and
have conducted numerous aerial surveys and understand the proper method for carrying out such

surveys.

^Anderson, D. E. 2007. Survey techniques. Pages 89-100 inD. M. Bird and K. L. Bildstein (eds.),
Raptor research and management techniques. Hancock House, Blaine, Washington.
Available onlne: httDs://raDtorresearchfoundation.or£/files/2015/10/Chapter-5.pdf

Pagel, J.E., D.M. Whittington, and G.T. Allen. 2010. Interim Golden Eagle inventory and monitoring protocols; and
other recommendations. Division of Migratory Bird Management, U.S. Fish and Wildlife Service. Available online:
https://www.fws.gov/southwest/es/ok1ahoma/documents/te sDecies/wind%20DOwer/usfws interim eoea monitoring p
rotocol 10march2010.Ddf

US Fish and Wildlife Service. 2013. Eagle Conservation Plan Guidance: Module 1- Land-Based Wind Energy, Version
2. US Department ofthe Interior, Fish and Wildlife Service, Division ofMigratory Bird Management. April 2013.
Executive Summary and frontmatter + 103 pp. Available online:
https://www.fws.2ov/migratorvbirds/pdf/management/eagleconservation planguidance.pdf

Page 6 of7
 Moreover, Mr. Schneider's contentions regarding the need for additional study work was

addressed in the October 26^^ Ruling on Mr. Schneider's first motion, which allowed for parties who

entered into stipulations, regarding the scope of studies to be performed, an opportunity to withdraw

from those stipulations in light of the nest omission. NYSDEC and NYSDPS withdrew from the

stipulations and if Mr. Schneider, or any other party, wants to argue that additional study work is

needed to fully address impacts, theywill have the opportunity to do so laterin this process; however

a disagreement regarding the need for additional study work is not grounds for dismissal. See 16

NYCRR § 1000.14. Moreover, such an analysis would be pre-mature pending the Applicant's

amendment of the Application.

VI. Conclusion

The arguments raised by Mr. Schneider in this second motion were fully addressed in the

Ruling on his first motion to dismiss. There is no "new" information which would require a different

ruling on this motion. Mr. Schneider has inaccurately described the discovery in this process,

including inaccurately stating that the Applicant possessed Stantec's field notes at any point prior to

November 2018, and has made baseless allegations regarding the Applicant's nest evaluatoin. The

Applicant is currently working on a detailed amendment, which will address potential impacts to the

nest, and has consistently stated they will work with NYSDEC to minimize and mitigation impacts

to bald eagles. For the reasons setforth above Mr. Schneider's Motion to Dismiss must be denied.
^/mMMER KLC

Jame^A. Mu&aceTl,
Jes^a Ansert Klami, Esq.
fomeys for Galloo Island Wind, LLC
Five Palisades Drive
Albany, NY 12205
Phone: (518) 438-9907 ext. 243
imuscato@voungsommer.com

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