SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF JEFFERSON

WIND POWER ETHICS GROUP Petitioner-Plaintiff, againstIndex No. 10-2882

AFFIDAVIT OF
ALBERT H. BOWERS III

PLANNING BOARD OF THE TOWN OF CAPE VINCENT, and RICHARD EDSALL, TOM RIENBECK, GEORGE MINGLE, ANDREW BINSLEY, and KAREN BOURCY, in their capacities as planning board members, Respondents-Defendants, and ST. LAWRENCE WINDPOWER, L~C, Respondents-Defendant

ALBERT H. BOWERS III being duly sworn, deposes and says: I. I live at 11891 Academy St, Chaumont, NY in the Town of Lyme, and

have lived at that address since April 2004. 2. I have been a member of the Town of Lyme Planning Board since 2007,

and prior to that formed a citizen's committee to research the economics and the effects of wind generated power projects. 3. I had not had time, prior to about August 15th, to examine the FEiS that

St. Lawrence Windpower was to present to the Cape Vincent Planning Board as lead agency on August 18,2010 because the document had not been provided to

the Lyme Planning board for our review, but I was made aware that it was available on the internet. When I looked at it and saw that the Lyme Planning Board was listed as an involved agency, I contacted the other members of the planning board with the idea that we needed to make our comments on the proposed FEIS known prior to its presentation to the Cape Vincent Planning Board on August 18. Upon our review the document appeared to be woefully inadequate and incomplete as is noted in our letter of August 17, 20 10 (the "August 17 letter"), attached hereto as Exhibit A. 4. The August 17 letter was reviewed by members of the planning board

prior to sending it. The fInal version was reviewed by Paul Norton, Chairman of the Lyme Planning Board, However Mr. Norton was engaged in working on a boat for a customer of his at the time and asked me to sign and transmit the letter. 5. At the time of the August 17 letter I was aware that a great many

substantive comments had been submitted to the lead agency by citizens at earlier public hearings about the DEIS and SDEIS. However, based on my review of the proposed FEIS it seemed as if none of those comments were addressed by St. Lawrence Windpower or by the Cape Vincent Planning Board because the project proposal described in the FEIS was essentially unchanged, except that the size of the project was reduced. Even the reduction in size did not respond to specifIc concerns expressed in public comments, including comments submitted by the Town of Lyme. 6. The August 17 letter was sent by fax to the Cape Vincent town office

after a review of the final draft with Paul Norton, Lyme Planning Board Chairman. (Paul was at work on a project for one of his clients at the time we reviewed the letter and asked if I would sign it and send it out, as I have a complete home office.) Receipt of the faxed letter was confirmed the same day by an email from Urban Hirshey, Cape Vincent Supervisor. 7. On October 12,2010 Chairman Paul Norton sent another letter to the

Cape Vincent Planning Board after it failed to respond in any manner to the August 17 letter. The October 12, 20 I0 letter, attached hereto as Exhibit B, details the ways in which the Cape Vincent Planning Board failed to follow the SEQRA process and failed throughout the process to communicate or notifY the Lyme Planning Board. 8. On November 29, 2010 Town of Lyme Supervisor Scott Aubertine sent

a letter to the Town of Cape Vincent clarifYing the status and substance of the August 17 letter and explaining why the Lyme Planning Board, by its August 17 letter, specifically declined to recognize the validity of the FEIS. This letter is attached hereto as Exhibit C. 9. Supervisor Aubertine's November 29 letter is accurate in stating that

there was little or no communication or correspondence to any of the involved agencies listed in the FEIS. The letter states: "Because of the lack of communication, the Lyme Town Board does not accept the validity of the FE/S." 10. The August 17 letter is informed by a substantial body of knowledge

regarding wind facilities in the town of Lyme as several of the Lyme Planning

Board members spent more than a year drafting a zoning law pertaining to the siting of wind energy facilities in the town, based on a thorough survey of taxpayers, and a survey of available information as to the effects of wind turbines already installed and operating in other areas. II. During the time the Cape Vincent Planning Board was conducting its

SEQRA review of the S1.Lawrence Wind project DEIS and SDEIS, the Lyme Planning Board was also actively engaged in the development of an updated comprehensive plan for the Town of Lyme and knowledge regarding wind facilities was required to evaluate plans for the proposed wind energy facility in Cape Vincent and its transmission lines in the Town of Lyme. The wind project proposed by St. Lawrence Wind is also important to Lyme because the project would establish a precedent for a similar wind project planned by BP whose project area would include both Lyme and Cape Vincent.

ALBERT H. BOWERS III

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,2010

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II

Exhibit A
Town of Lyme Planning Board Member Albert H. Bowers III, letter to Town of Cape Vincent Planning Board, dated August 17,2010

Exhibit B
Town of Lyme Planning Board Chairman Paul Norton, letter to the Town of Cape Vincent Planning Board, dated October 12, 2010

Exhibit C
Town of Lyme Supervisor Scott Aubertine, letter to the Town of Cape Vincent, dated November 29,2010

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Planning Board
JeffersonCounty P.O.Box 66 CHAUMONT, NEW YORK 13622
PH: (315)649-2788 FAX: (315) 649-2049 TTD: (800)662-1220

Au g u st17,2010 Town of CapeVincentPlanning Board Town OfficeBuilding 1 9 6 4N YS Rte 12E Ca p eVincent, 13618 NY FEIS Windpower St. Lawrence To: Chairman Richard Edsall Andrew and members, KarenBourcy, ThomasIngersoll, Bi nsle y, and GeorgeMingle: The Lyme Planning Boardis an involved in agencyparticipating the SEQRA process the abovecaptioned project.In spiteof our standing, boardwas not for our presented with a copy of the FEISas an involved we agencyand consequently have had to undertake rushed, a review the FEIS.We understand FEISwill be submitted to of the you on August18 for your acceptance accordance as with yourfunction LeadAgency in for the SEQR process. In our reviewof the document IMPACT titled"FINALENVIRONMENTAL TOWNSOF STATEMENT, PROPOSED LAWRENCE PROJECT, ST. WINDPOWER CAPEVINCENT& LYME,JEFFERSON COUNTY,NEWYORK,"we findthat,in several important respects, failsto satisfythe requirements NYS DEC in an adequate it of by mannerand we recommend be that it shouldnot,therefore, accepted you in your function LeadAgency. as Someof the manyfailures followthe DEC requirements as follows: to are . There is no description the need for and benefits from the proposed of extensive development is required NYS DEC. Thiswouldrequire as by and variable discussion and analyses demonstrating what meansthe highly by powergenerated proposed will unpredictable windfacility materially fromthe generated the operation the of reducethe use of fossilfuelsor the emissions by grid. electrical of Further, thereis no investigation verification the transmission the power that or generated this projectand the adjacentproposedBP wind projectcan to be by such powerthroughthe be effectively transmitted areasof the state requiring to Chaumont sub-station. the The soundstudypresented clearly attempt subvert intentof the DEC is an to grossly and overstated The background noiselevelsare noiserequirements. Tocci of the comments Cavanaugh Hessler has chosento ignore SLW consultant and otherson this very point. A Associates, PaulCarr,Mr. ClifSchneider Dr.

.

.

T_own Cape_ o_f Vincent,planningBoard

Pege -2

recentarticleby NancyMadsenin the WatertownDailyTimesalso revealedthis shortcoming the study in The town of cape Vincent's consulting engineers, including acoustic an expert, standsfirm in theirrecommendation SLWAcciona's that estimate background of noiseis elevated.As a consequence, proposed the setbacks between tuibines and non-participating properties far too close. Therefore, this basisalone, are on the Planning Boardshouldrejectthis FEISand require SLW to complywith the recommendations the town'sengineering of consultants, e.g.,Bernier carr Associates and Cavanaugh TocciAssociates. DEC recommends noisebe permitted increase morethan 6 dB that to not beyondestablished background levels. In addition inflating background to the levels,Hessler treatsthe 6 dB, not as an upperlimitto soundincreases, but seemsto use it as a targetdesignvalue,whichwill be actually exceeded undera numberof operating conditions. This practice addedto the overstatement the of nighttime background noiselevelswill resultin residents beingexposed to intrusive and annoying noiselevels. Hessler's selection 42 dB as an appropriate of soundrever adjacent for residences resultin intolerable will noiselevelsfor manyresidences. Measurements background of noiseperformed locally indicate background soundlevelsof about25 dB at nightwhen peopleneedto sleep. lf the resultant limitwere 6 dB higherit wouldresultin a maximum permitted soundlevelof 31 dB. This limitshouldbe observed the property at linesof non-participating residents and property owners, at the residence SLW proposes.This not as level is significantly moretolerable than the 42 dB proposed sLW at (most) by residences therefore affectthe numberof turbines and will and the placement of thoseturbines. It is apparent that Hessler/sLW look uponthe DEC guidelines as a way to not protect residents from intrusive and annoying soundlevels, simplyuse it as a but meansto justifythe highest possible designsoundlevels increase number to the of turbines be located to withinthe project boundaries. SLW relieson the widelydiscredited Hoenreportto support contention its that propefty valueswill not be affected, whileignoring simple the fact,observed by local real estatebrokers, that virtually everything Cape Vincentis currently in for sale and nothing can be sold because the threatof winddevelopment. of The entireissueof damageto birdsand batsby windturbines needsto be reevaluated view of the disturbing in statistics haverecently that emerged from monitoring damagedone by the turbines neighboring the on wolfe lsland. Lyme'sown wind surveyindicated that 80 % of respondents wantedthe transmission linesto be buried.This possibility not mentioned evaluated is or in the FEISeventhoughthe bulkof the transmission will lie in the Town of line Lyme. The mitigation (renovation two community measures of vaultsin ThreeMile Bay Cemeteryand vegetative proposed compensate Town of Lyme screening) to the for the intrusion the transmission are meaningless trivial. of line and Lastly, wouldseemreasonable if the chieflaw enforcement it that officein the stateis investigating winddevelopment municipal and in officials CapeVincent

planning Towno_f CapeVince_n!, Board

pg_ge 3

AG's investigation reporting.There may well be findingsthat will have a and profoundeffecton the outcomeof Acciona'sprojectproposll. Thesearejust a sampling the inadequacies the FEIS,whichshouldbe of of rejectedon August 18, as failingto meetthe intentof the DEC requirements. For the Town of Lyme Planning Board,

thatanyprogress theSEQR in process should halted completionthe be until of

%*

Albert Bowers H. lll cc: LymeTownBoard

Councilman DAN VILLA Councilwoman ANNE HARRIS

Councilman DON BOURQUIN

JEFFERSON COUNTY P.O. Box 66 CHAUMONT, NEW YORK 13622
PH: (315) 649-2788
E-Mail: lymetownclerk@twcny.rr.com

Councilman WARREN A JOHNSON

FAX: (315) 649-2049 lTD: (800) 662-1220

November 29, 2010

TQwlil'Qflt~if~i!:VIl'lt£enlfT!:lWH

Boa rd

Town of Cape Vincent Planning Board PO Box Cape Vincent, New York

Dear Respective Boards, I have been directed by the Lyme Town Board to write you in regards to the letter sent to you by the Town of Lyme Planning Board stating its disapproval of the S.E.Q.R. and F.E.I.S. process which was followed for the St. Lawrence Wind Project. This letter is in no way a show of support for the Article 78 proceeding against the Town of Cape Vincent Planning Board, nor is it intended to show support for WPEG. It is merely correspondence sent in an effort to clear up some confusion and misunderstanding, and to express our disappointment, and regrets, at the lack of communication between our two towns. I have been advised by counsel that the Town of Lyme Planning Board should not have been classified as an involved agency. It is not the duties of our PB to Issue permits, variances, etc. Those duties are given to the Town of Lyme Zoning Board of Appeals, who was included as an involved agency, along with other town departments. Per a discussion with Mr. Tim Conboy of Acciona Energy, I was informed that it is a typical procedure to include all town agencies in order to ensure covering all bases. In this case, they were incorrect to include the Town of Lyme Planning Board, whose role is defined differently from that of most town planning boards. Hence, the confusion and misunderstandings. However, the letter written on behalf of the Town of Lyme Planning Board is accurate in stating that there was little or no communication or correspondence to any of the involved agencies mentioned in the F.E.I.S. (Table 1-1). Section 1.2 "list of Required Permits, Approvals and Recommendations" lists not only the Town of Lyme Planning Board, but also the Town of Lyme Zoning Board of Appeals and "Town of Lyme Departments" (obviously another attempt by Acciona Wind to "cover all bases"). Unfortunately, when each of these boards and other departments were asked if they received correspondence from any agency at the Town of Cape Vincent,

we were informed they had not. Apparently, the only recent correspondence has been the receipt of the Final Environmental Impact Statement. Because of the lack of communication, the Lyme town board does not accept the validity of the F.E.I.S. With the inclusion of the Town of Lyme on the statement header, the mention of several Town of Lyme agencies and the obvious plan to route the transmission lines through Lyme, it is felt that a more concerted effort to supply us with project updates and information would have been appropriate, and greatly appreciated. With that said, the Town of Lyme remains open to receiving any information, comments, requests and recommendations from any Town of Cape Vincent agency. The Town of Lyme is sincere in expressing its hopes for a continued relationship friendship and neighborliness. of

For the Town Board,

Scott G. Aubertine Supervisor, Town of Lyme PO Box 66 Chaumont, NY 13622

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