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February 28, 2018

John Rliodes, Chair
New York State Board on Electric
Generation Siting and the Environment
Three Empire State Plaza
Albany, NY 12223-1350

Re: Case No, 15-F-0327 Application of Galloo Island Wind, LLCfor a Certificate
of Environmental Compatibility and Public Need to Construct an
Approximately 108.9-Megawatt Wind Electric Generating Facility in the Town
ofHounsfield, Jefferson County, New York: Supplemental Response to
February 22, 2018 Letter

Dear Chairman Rhodes:

In response to the February 22, 2018 letter received from the Board on Electric
Generation Siting and the Environment (Siting Board) regarding the Applieation submitted by
Galloo Island Wind LLC (Applicant) pursuant to N.Y. Public Service Law (PSL) § 164 for a
Certificate of Environmental Compatibility and Public Need for the Galloo Island Wind Energy
Facility (Facility), supplemental information is provided below and attached. The organization
of this document is consistent with the Siting Board's February 22, 2018 letter and presents each
comment followed by the Applicant's response.

EXHIBIT 19: NOISE AND VIBRATION

1. Comment:

Stipulation 19(d)(7) - Application Supplement (datedJanuary 2,2108) Response to Item

8 of Exhibit 19: Attachment 13 of the Application Supplement includes the required information
on an hourly basis. However, the overall sound level of the "Raw" columns at each receptor is

cy
John Rhodes, Chair
New York State Board on Electric
Generation Siting and the Environment
February 28, 2018
Page 2 of 8

not reported. Provide the overall one-year sound pressure level results at each receptor of the
"Raw" columns. As required per Stipulation 19(f), provide the sound levels including and
excluding the periods of time when the turbines will not be operating (rotating) in the
calculations of the yearly average for operational sound levels (two sound levels per receptor).

Response: The Applicant provides the requested information below:

Table 19.1 Overall One-Year Sound Pressure Levels from CONCAWE Modeling

Sound Pressure Level (dBA)*

Receptor Without With
Zeros^ Zeros^
1 20.5 20.0
2 25.5 25.0
3 40.8 40.3
4 40.9 40.4
5 34.8 34.3
6 25.0 24.5
7 22.3 21.8
8 22.5 22.0
9 48.0 47.5

• Annual Leq calculated using the raw hourly CONCAWE modeling results
^ Excludes periods when the wind turbines will not be operating
^ Includes periods when the wind turbines will not be operating

EXHIBIT 22: TERRESTRIAL ECOLOGY AND WETLANDS

The New York State Department of Environmental Conservation advises that section
(Exhibit) 22 (h) (3) is not compliant with the application requirements under Article 10 of the
Public Service Law and 6 NYCRR Part 182 (as incorporated into the applications requirements
through signed stipulations) for the following reasons:

1. Comment:

The Application does not contain, and cannot be considered compliant without an
explanation as to why all impacts to Northern Long Eared Bats cannot be avoided using a
curtailment regime of 6.9 m/s, including specific evidence setting out the impacts on project
economics that would occur under the full avoidance curtailment regime of 6.9 m/s. For ftirther
details, see Order Granting Certificate of Environmental Compatibility and Public Need, with
Conditions in Application of Cassadaga Wind, LLC for certificate of Environmental
Compatibility and Public NeedPursuant to Article 10 ofthe Public Service Law^ Case. No. 14-F-
0490, Issued Jan. 17, 2018, at pp. 52-54. Additionally, please provide the explanation for the
John Rhodes, Chair
New York State Board on Electric
Generation Siting and the Environment
February 28, 2018
Page 3 of 8

minimization regimes between all curtailment regimes of 6.0 m/s and 5.0 m/s so to permit a
comparison of avoidance and minimization regimes between all the curtailment regimes.

Response:

The Applicant understands that it is the NYSDEC's opinion that curtailment at 6.9 m/s is
effective "avoidance" for northern long-eared bat take and that the Applicant should first
consider implementing a curtailment regime to this degree. However, the Applicant disagrees
that a curtailment regime of 6.9 m/s during this period is necessary to "avoid" take of northern
long-eared bats. In fact, the Applicant does not believe there is a high likelihood of take at this
Facility location, particularly with the Applicant already agreeing in the Application to
implement certain measures to reduce the likelihood of take. To date, the majority of the
documented northem long-eared bat fatalities caused by wind energy facilities have occurred at
wind speeds below 5.0 m/s, which is the Applicant's suggested curtailment. The Applicant does
not believe it must eoncede that 6.9 m/s constitutes "avoidance" is necessary for a complete
application.

Nonetheless, the Applicant provides additional detail regarding economic impact of

NLEB curtailment in Attachment 1 hereto, and why the avoidance alternative is not feasible.
This information is being provided under confidential cover pursuant to Section 87(2) of the
New York Public Officers Law (NY POL) and the Commission's Rules and Regulations (16
NYCRR subpart 6-1) and the Siting Board's December 4, 2017 Ruling Adopting Protective
Order.

2. Comment:

The Application cannot be considered compliant under Article 10 of the Public Service
Law (or complete under 6 NYCRR Part 182) without a demonstration of net conservation benefit
for the species covered by an incidental take permit under Part 182. The Application does not
specify the net conservation benefit of mitigation or minimization measures to the species listed
as threatened or endangered. In particular, the Application does not contain any proposed
mitigation that would result in net conservation benefit for unavoidable impacts to bald eagles.
While the removal of deer carcasses from the island and eliminating the use of lead shot could
minimize eagle fatalities associated with hunting activates, such actions do not mitigate for
impacts to eagles as a result of the construction and operation of wind turbines. The Department
of Environmental Conservation has previously discussed with the Applicant other mitigation
measures such as protection of eagle nests and surrounding habitat. The previous incidental take
permit issued for the Upstate Power Corp provided twenty-five acres of active bald eagle nesting
habitat within New York State including a nest tree. Please discuss other options.

Response:

Appendix DD to the Application includes a conservation plan which quantifies the

potential impact of the Project construction and operation on state threatened and endangered
species and describes impact mitigation measures to ensure a net conservation benefit for
John Rhodes, Chair
New York State Board on Electric
Generation Siting and the Environment
February 28, 2018
Page 4 of 8

northern long eared bat, bald eagle, northern harrier, upland sandpiper and short-eared owl. The
mitigation measures and conditions identified by the Applicant in Appendix DD will avoid,
minimize, and mitigate adverse impacts to the endangered and threatened species identified and
result in a net conservation benefit for the species when implemented.

The Applicant feels as though the DEC is seeking to arbitrate the sufficiency of proposed
mitigation prior to application acceptance when such disagreements on sufficiency are more
appropriately addressed through the hearing phase of the Article 10 process. The Applicant has
submitted a Net Conservation Benefit Plan (Appendix DD) that outlines proposed mitigation
which the Applicant in good faith believes provides a net conservation benefit for threatened and
endangered species, including eagles (see Appendix DD Section 5.2.2). The removal of deer
carcasses is presented as an impact avoidance or minimization measure, to minimize the
likelihood of eagles using the interior of the island for scavenging and subsequently reduce the
risk of collision related mortality. The elimination of lead shot is presented as a mitigation
measure, which if removed from the immediate ecosystem of Galloo Island would reduce lead
toxicity in eagles that would otherwise be exposed, thus providing a net conservation benefit to
the local area population. For DEC to present this as not mitigating impacts to eagles is
perplexing, as if left to continue, a certain level of eagle mortality would occur associated with
lead toxicity; therefore, the Project while potentially taking up to 3 bald eagles for the life of the
Project, also removes the threat of lead ingestion from this source from the population for the life
of the Project as well. Conservatively, assuming a single eagle is saved every five years then the
mitigation efforts would result in a net conservation benefit for the species (i.e., preventing
mortality of 6 eagles over the life of the project in return for incidental take authorization for the
estimated take of 3 eagles for the life of the project). The plan includes all required elements.
That the NYSDEC disagrees with the sufficiency should not be grounds for withholding a
completion determination.

The Applicant understands and appreciates that through the Article 10 process additional
or different mitigation options may be identified by other parties to the proceeding, and the
Applicant is willing to consider those mitigation options through the formal Article 10 process.
The Applicant also acknowledges that mitigation of Bald Eagle take was previously proposed in
the earlier Hounsfield Wind Projeet as part of a previous Article 11 permit application.
However, the Applicant believes the currently proposed mitigation off-sets the potential take to
Bald Eagles and as explained above will provide a net conservation benefit for the species.

EXHIBIT 33: OTHER APPLICATIONS AND FILINGS

1. Comment:

16 NYCRR 1001.33(a) - Application Supplement (dated January 2, 2018) Response to

Item 1 of Exhibit S3: The Applicant's response regarding applicability of PSL §68 is noted but is
incorrect, as evidenced by the recent decision by the NYS Siting Board on Electric Generating
and the Environment in Case 14-F-0490 (See Order Granting Certificate of Environmental
John Rhodes, Chair
New York State Board on Electric
Generation Siting and the Environment
February 28, 2018
Page 5 of 8

Compatibility and Public Need, January 17, 2018; pp. 113-114). The Applicant should submit
acknowledgement of the requirements of PSL §68 to the proposed Facility.
Response:

The Siting Board in the Cassadaga Wind decision affirmed that PSL § 68's procedural
requirements were preempted by Article 10, when it decided to exercise its powers under PSL §
172(1) to specifically authorize the Public Service Commission to issue a Certificate of Public
Convenience and Need under PSL § 68.' Absent such specific authorization by the Siting Board,
the Commission would otherwise be precluded by Article 10, pursuant to PSL § 172(1), from
imposing the procedural PSL § 68 CPCN requirement on a project permitted under Article 10.

Substantively, the requirements of PSL § 68 are largely inapplicable to wholesale

generators, as they pertain primarily to retail rates and the exercise of franchises. Thus, no
significant additional information is required from the Applicant in order for the Article 10
Application to be deemed complete. Only the first section of PSL § 68 would apply to Applicant
in the absence of Article 10—the requirement for obtaining a Certificate of Public Convenience
and Need prior to construction or operation of an electric plant—given that the Appliceint does
not propose to exercise any "rights or privileges under franchise."^ Thus, no submissions which
would be required under a franchise scheme are needed for this Application.

Further, Applicant has already provided information relevant to a wholesale generator

which would otherwise be provided to meet the substantive requirements of PSL § 68, and no
further submissions to the Siting Board or the Commission are necessary. Ultimately, and based
on the information already provided, the Siting Board should find that, to the extent applicable to
Applicant, Galloo Island Wind LLC meets those substantive requirements of PSL § 68 relevant
to a competitive wholesale generator, for the following reasons.

PSL § 68 (1) requires that, before the Commission can issue a PSL § 68 CPCN, the
electric plant proponent must submit "a certified copy of the charter of such corporation . . .
together with a verified statement of the president and secretary of the corporation, showing that
it has received the required consent of the proper municipal authorities."^ Unlike franchise
agreements, whose terms and exercise are subject to review and approval by the Commission,

' Order Granting Certificate of Environmental Compatibility and Public Need in case 14-F-0490, Application of
Cassadaga Wind LLC at 114 (January 17, 2018) (hereinafter "Cassadaga Order").
^ PSL § 68 (1) states, "No gas corporation or electric corporation shall begin construction of a gas plant or electric
plant without first having obtained the permission and approval of the Commission. No such corporation shall
exerciseany right or privilege underfranchise hereafter granted, or under any franchise heretofore granted but not
heretofore actually exercised, or the exercise of which shall have been suspended for more than one year, without
first having obtained a certificate of public convenience and necessity issued by the Commission." [emphasis
added]. Applicant does not seek to exercise any "right or privilege under franchise" and, in fact, Applicant does not
hold any franchise agreements in connection with this project. Therefore, the second CPCN requirement articulated
under PSL § 68 is neither relevant nor applicable to the proposed Facility. Only the substantive requirements of
PSL § 68's first CPCN requirement, for construction or operation of an electric plant, have potential application to
the Facility and/or the Applicant.
^ Notably, most municipal consents are already preempted by Article 10, such as local permits, zoning approvals,
site plan review, etc.
John Rhodes, Chair
New York State Board on Electric
Generation Siting and the Environment
February 28, 2018
Page 6 of 8

the submission of municipal consents for the construction or operation of a major electric
generating facility, and/or a verified statement from the Applicant's chief executive regarding
such consents, fulfills the statute's purely informational requirements, with no further scrutiny
required. PSL § 68(1) also requires a determination that the electric plant construction is
necessary and convenient, which requires that "the commission shall consider the economic
feasibility of the corporation, the corporation's ability to finance improvements of a gas plant or
electric plant, render safe, adequate and reliable service, and provide just and reasonable rates,
and whether issuance of a certificate is in the public interest."

The Siting Board has determined that the public need and environmental compatibility
findings and considerations which would have been required under a PSL § 68 CPCN
proceeding are subsumed within the Article 10process, and need not be duplicated in a PSL § 68
review.'' This leaves only the "economic feasibility," "ability to finance," "safe, adequate and
reliable service," and "just and reasonable rates" as potential substantive considerations under
PSL § 68. However, most of these remaining requirements are either inapplicable to a wholesale
generator—which does not charge retail rates for which it would need to prove its rates were
"just and reasonable"^ —or are already addressed by Article lO's many requirements—such as
the "safe, adequate and reliable service" requirement which, to the extent it applies to a
wholesale generator, is already addressed in multiple exhibits of an Article 10 Application,
including Exhibits 5, 8, 10, 15, 18, and 34, and inherent in the Siting Board's findings under PSL
§ 168. Indeed, to issue an Article 10 Certificate, the Siting Board's must have considered
impacts on public health and safety (168(2)(b), utilities and utility infrastructure (168(2)(d)), the
impacts of the Facility on existing utility systems (168(4)(d)), and must find that the Facility is a
beneficial addition to the State's electric generation capacity (168(3)(a)), and that the Facility is
in the public interest (168(3)(b)). Applicant has already submitted extensive information
regarding these points. If a Facility's System Reliability Impact Study (SRIS) or other analysis
indicated that the Facility would not provide "safe, adequate, and reliable" electric service, it is
highly unlikely the Siting Board would conclude it was in the public interest or was otherwise
entitled to a Certificate. No additional analysis mandated by PSL § 68 is required to ensure such
issues are addressed, and no further documentation needs to be provided.

As to the economic feasibility and financial ability provisions, Applicant notes that these
requirements were meant to apply to monopoly utilities, whose unwise financial decisions were
historically passed on to ratepayers, and not to competitive generators who must compete in the
marketplace, and who bear their own risks in that marketplace.^ Indeed, the Commission itself

'' See Cassadaga Order at 112-14.

^ The Commission only retains jurisdiction over retail electric rates. Wholesale electric rates, and determinations
that such rates are just and reasonable, fall under the exclusive jurisdiction of the Federal Energy Regulatory
Commission (FERC) Pursuant to the Federal Power Act §§ 201, 205 and 206 (16 USC 824, 824d, and 824e). Thus,
the Commission lacks the necessary Jurisdiction to make determinations with respect to whether Applicant's
wholesale electric rates are "Just and reasonable." The Commission only has the Jurisdiction under PSL § 68 to
determine whetherretail rates areJust and reasonable, which is not relevantto Applicant's proposal.
^ See Commission Order in Case 07-E-0213, Sheldon Energy LLC (January 17, 2008), in which the Commission
held that strict financial oversight requirements for utilities "were intended to prevent financial manipulation or
unwise financial decisions that could adversely impact rates charged by monopoly providers." Meanwhile, in the
case of competitive market participants like the Applicant, the Commission holds that, "[s]o long as the wholesale
John Rhodes, Chair
New York State Board on Electric
Generation Siting and the Environment
February 28, 2018
Page 7 of 8

has held that it need not scrutinize or exercise authority over the internal financial decision-
making of competitive market participants^—to the extent it actually had the proper jurisdiction
to do so, given FERC's broad authority over the wholesale markets and participants therein. The
Applicant has already submitted detailed information regarding the costs of the proposed
Facility, in Exhibit 14, and detailed information regarding its plans for decommissioning and
removal of the Facility at the end of its useful life, including the provision of financial security to
fund that decommissioning even in the event that Applicant is no longer in existence or able to
complete that process, see Exhibit 29. This information is sufficient to meet the Siting
Board/Commission's purposes—it demonstrates a financial mechanism for ensuring that Facility
removal will be performed even in the event of owner insolvency and sets forth the costs
associated with construction of the proposed Facility and decommissioning and removal of the
Facility at the end of its useful life. Nothing further is necessary under the circumstances.

The only substantive PSL § 68 requirements which appear to apply to a competitive

wholesale electric generator are the submission of a certified copy of the Applicant's formation
documents—which was already submitted as Appendix A to Exhibit 1 of the Application
(submitted September 25, 2017), and which includes proof that the Applicant is registered to do
business in the State of New York - and a verified statement from the Applicant that it has
received, or will obtain, required municipal consents necessary for the construction of the
Facility. That verified statement is attached hereto as Attachment 2.

The information submitted by Galloo Island Wind in its Application and this supplement
is sufficient to meet the substantive requirements of PSL § 68, to the extent they are applicable to
a competitive wholesale electric generator. Nothing further is needed to deem this application
complete, or for the Siting Board to find that, to the extent the substance of PSL § 68 apply to the
Applicant and/or the Facility, those substantive requirements have been met.

Lastly, subsequent to the filing of the Supplement to the Application, the Applicant
received a letter from State Parks, Recreation and Historic Preservation, dated January 19, 2018,
that the Applicant intends to submit with Exhibit 20 of the Application; the letter is attached as
Attachment 3.

The Application Supplement is being filed with the Secretary and served pursuant to PSL
§ 165(1) and 16 NYCRR § 1000.9 and is being provided to the parties identified on the attached
Service List. Additionally, pursuant to 16 NYCRR § 6-1.4, certain information is being
submitted to the Administrative Law Judges under separate cover because the Applicant is
seeking protected status.

generation market Is effectively competitive, wholesale generators cannot raise prices even if their costs rise due to
poor management. Moreover, imposing these requirements could interfere with wholesale generators' plans for
structuring the financing and ownership of their facilities. This could discourage entry into the wholesale market, or
overly constrain its fluid operation, adversely affecting its operation to the detriment of the public interest."
John Rhodes, Chair
New York State Board on Electric
Generation Siting and the Environment
February 28, 2018
Page 8 of 8

Please let us know if there are any questions.

ery truly yours,

iscato'
)ommer

Lttorneys for Galloo Island Wind, LLC

Attachments 1-3

cc: Attached Service List

Hon. Kathleen H. Burgess, Secretary to the Siting Board