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December 6, 2018

Via electronic filing


Honorable Ashley Moreno
Honorable James A. Costello
New York State Department of Public Service
3 Empire State Plaza
Albany, New York 12223

Honorable Michael S. Caruso


New York State Department of Environmental Conservation
625 Broadway
Albany, New York 12233

Re: Case No. 15-F-0327 Application of Galloo Island Wind LLC for a Certificate of
Environmental Compatibility and Public Need Pursuant to Article 10 to Construct a Wind
Energy Project; Response to Mauer/Schneider/Town of Henderson Second Motion to
Dismiss dated November 27, 2018

Your Honors:

On behalf of the Department of Environmental Conservation (DEC), this letter is in response to


the second motion to dismiss submitted by Mr. Schneider, Ms. Mauer, and Mr. Culkin on behalf
of the Town of Henderson dated November 27, 2018 (the Schneider/Maurer Motion) and your
Honors’ e-mail ruling dated November 27, 2018 requiring a response from DEC, the Department
of Public Service (DPS), and Galloo Island Wind, LLC (Galloo) to the Schneider/Maurer Motion.

The Schneider/Mauer Motion requests reconsideration of the Ruling Denying Maurer/Schneider


Motion to Dismiss and Grating the Motion to Postpone Proceeding issued on October 26, 2018
(October 26, 2018 ruling) based on biologists’ field notes, observations and photographic
evidence obtained through discovery that further suggest that Galloo was on notice that the
“potential eagle’s nest” is in fact an occupied eagle’s nest. 1 As noted in the October 26, 2018
ruling, DEC Staff confirmed that the “potential eagle’s nest” is an active occupied bald eagle
nest. 2

As an initial matter, DEC Staff share the opinion of the examiners that “[t]he success of the
Article 10 process…is dependent on applicants providing complete, material and accurate

1 See Galloo responses to CS-CM 2 and 12 and the Schneider/Mauer Motion.


2 October 26, 2018 Ruling, p. 5.
Case No. 15-F-0327
DEC response to Mauer/Schneider/Town of Henderson Second Motion to Dismiss dated November 27, 2018

information.”3 This statement applies with equal force to DEC’s own permitting programs as it
does to the Article 10 process. Here, as your Honors have already determined, Galloo failed to
provide complete, material and accurate information to DEC, other parties to the proceeding,
and the New York State Board on Electric Generation Siting and the Environment (Siting Board)
with respect to the bald eagle nest on Galloo Island.

If Galloo had disclosed the bald eagle nest prior to the date that the stipulations were executed,
DEC Staff would have requested various studies to be included in the application, such as nest
productivity monitoring and monitoring of adult and fledgling (if any) flight paths. If these studies
are not performed, a worst-case scenario regarding impacts to bald eagles, including
consideration of the active bald eagle nest, can be assumed.

As directed in the October 26, 2018 ruling, Galloo must amend its application. As part of its
amended application, it is DEC Staff’s position that Galloo must include, at a minimum, proposed
avoidance, minimization, and mitigation measures for bald eagles considering the presence of
the active bald eagle nest on Galloo Island. Once Galloo files such an amended application, this
and other evidentiary matters should be addressed as part of the adjudicatory hearing process.
As part of such adjudicatory process, DEC reserves its right to take any appropriate position on
whether Galloo withheld or misrepresented material information or submitted materially false or
inaccurate statements.

If the legal test for dismissal is not met or your Honors otherwise determine that outright dismissal
is not warranted here, Galloo’s actions and omissions to date warrant at least some
consequences in addition to those already set forth in the October 26, 2018 ruling. For example,
your Honors should consider modifying the October 26, 2018 ruling as it relates to an extension
of the statutory timeframe. At a minimum, your Honors should consider the following: (1) direct
tolling of the one-year Article 10 timeframe until the Chair of the Siting Board determines that
application amendment filed by Galloo is compliant with the Public Service Law; (2) recommend
to the Siting Board that it extend the one-year timeframe by six months; and/or (3) request
Galloo’s consent to a statutory timeframe extension. With regard to item (3), if such consent is
even necessary here, Galloo already consented to providing additional time “commensurate with
the time needed for Galloo to submit a modified Application and for the parties to review.” 4 Short
of dismissal, DEC Staff believe that this modification to the October 26, 2018 ruling would
strengthen the remedy already provided by the examiners for Galloo’s failure to provide
complete, accurate and material information in the application process.

Respectfully submitted,
/s
Lawrence H. Weintraub

ecc: Honorable Kathleen H. Burgess


Parties

3 October 26, 2018 Ruling, p. 11; see also, Dissent, p. 1.


4 Letter from James A. Muscato II and Jessica Ansert Klami, Young/Sommer LLC, to Examiners (Nov. 7, 2018).