20160617-5048 FERC PDF (Unofficial) 6/17/2016 10:11:32 AM

June 17, 2016

Mr. John Zimmer

Pipeline / LNG Market Director
TRC Environmental Corp.
650 Suffolk St., Suite 200
Lowell, MA 01854

Re: 2nd NOTICE OF INCOMPLETE APPLICATION

Millennium Pipeline Company, LLC
Valley Lateral Project - FERC Docket Nos. PF15-23 and CP16-17
Application for: Section 401 Water Quality Certification,
Freshwater Wetlands and Protection of Waters Permit

Dear Mr. Zimmer:

On November 23, 2015, the New York State Department of Environmental

Conservation (“NYSDEC”) received an application (“Application”) for a federal Clean
Water Act (“CWA”) § 401 Water Quality Certificate (“WQC”) from Millennium Pipeline
Company, LLC (“Millennium” or the “Applicant”) for the proposed Valley Lateral Project
(“Project”). The Project is the construction of a new 7.8 mile 16-inch diameter natural
gas pipeline located in the Towns of Wawayanda and Minisink, Orange County, New
York, that will extend from the Applicant’s existing mainline pipeline north to the new
650 megawatt gas-powered CPV Valley Energy Center in the Town of Wawayanda.
Pursuant to the CWA, NYSDEC must determine whether to issue a certification
verifying that an activity which results in a discharge into navigable waters – such as the
Project – meets State water quality standards before a federal license or permit for such
activity can be issued.

Based upon a preliminary review of the application, on December 7, 2015,

NYSDEC issued a Notice of Incomplete Application to the Applicant stating that the
Application was incomplete pending (i) issuance of an Environmental Assessment
(“EA”) or Draft Environmental Impact Statement by the Federal Energy Regulatory
Commission (“FERC”) and (ii) additional information NYSDEC staff determines
necessary to conduct its administrative review of the Application.

FERC issued an EA for the Project on May 9, 2016. NYSDEC has reviewed the
EA and, on June 8, 2016, submitted its comments directly to FERC. These comments,
in part, include the information requested herein, which NYSDEC requires in order to
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complete its review of the completeness of the Application pursuant to 6 NYCRR Part
621.3(a)1, as well as its ultimate review of the Project.

State and Federal Threatened and Endangered Species

Indiana Bats (Myotis sodalis) and Northern Long-Eared Bats (Myotis septentrionalis)2

NYSDEC staff has determined that the entire preferred route (as defined in the
Application) is “occupied habitat” for Indiana bats. An occupied habitat includes areas
within 2.5 miles of identified critical habitat features, including roost trees. NYSDEC staff
has determined that the Project, if constructed along the preferred route, is entirely
within 2.5 miles of one or more roost trees3 (both maternity and bachelor colonies).

Given the importance of the bat habitat along the preferred route of the Project,
and the potential for significant impacts to this habitat, additional information is required
in order for the NYSDEC to make an impact determination for Indiana bats, thereby
determining whether a take or taking of Indiana bats will occur, which would then
require a permit under 6 NYCRR Part 182. This required information is as follows:

 An assessment of the Project’s indirect impacts to Indiana bats including an

evaluation of temporary or permanent increases in noise, vibration, dust,
chemical use, lighting, equipment use and general levels of human activity.

 A determination if the Project will result in temporary or permanent loss,

degradation, and/or fragmentation of roosting, foraging, swarming and
commuting or wintering habitat for Indiana bats.

 Identification of conservation measures to be implemented during construction

and operation to minimize the likelihood of adverse indirect impacts to Indiana
bats, such as preserving roost trees, minimizing clearing in suitable occupied
habitat and maintaining forested connections; and mitigation measures to offset
indirect impacts to bats.

In addition to the evaluation factors described above, the following specific

questions must to be addressed in the impact analysis:

1) What is the existing percentage of forested cover within the occupied habitat
area and of this, how much is considered suitable Indiana bat habitat?
a. The area within a 2.5 miles radius of the at least 10 known roost trees
should be used for this analysis.

1
According to 6 NYCRR Part 621.3(a)(4), “[i]f a project requires more than one department permit, the
applicant must simultaneously submit all the necessary applications, or demonstrate to the department’s
satisfaction that there is good cause not to do so.”
2
Indiana bats are a federally and New York State listed endangered species and northern long-eared
bats are a federally and New York State listed threatened species.
3
Due to the sensitivity of the locational information, NYSDEC staff will provide Millennium the specific
coordinates for the roost trees under separate cover to facilitate their assessment of indirect impacts.
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2) Considering the tree clearing proposed by the Project for both construction and
maintenance operations, what will the percentage of suitable forested cover be
within the occupied habitat post construction?
a. The area within a 2.5 miles radius of the at least 10 known roost trees
should be used for this analysis.

3) What is the actual acreage of trees that will be removed along the pipeline ROW,
access roads and laydown areas?
a. A depiction of these areas on an aerial image should be included as in the
analysis.

4) For any areas of the Project that are at or below 35% forested cover, please
provide the following additional information.
a. Please provide detailed acreage of tree removal for the pipeline, including
associated assess roads and laydown areas.
b. What is the quality of the forested Indiana bat habitat (age, species, and
diameter at breast height (DBH) of the trees) within the area planned for
removal?

NYSDEC staff will review the responses to the above requests and determine if
the Project, as proposed along the preferred route, will require a permit under 6 NYCRR
Part 182.11.

Bog Turtle (Clemmys muhlenbergii)4

Portions of NYSDEC Wetland MD-23 have been identified as potential bog turtle
habitat by the Applicant, and therefore, NYSDEC considers the entire contiguous
wetland complex to be potential bog turtle habitat5. Accordingly, NYSDEC Wetland MD-
23, which corresponds to Wetland ID W-AG at milepost 7.6, should be considered
potential bog turtle habitat and a full evaluation of the potential impacts to this habitat
should be undertaken.

Wetland ID W-AG is proposed to be traversed via horizontal directional drill

(“HDD”). While HDD minimizes impacts to wetlands, it is still possible for the potential
bog turtle habitat to be impacted through operation and maintenance activities,
vegetation clearing, inadvertent returns of fracking fluid6, and impacts to shallow
groundwater from the HDD process. These potential impacts should be evaluated by
the Applicant and avoidance and minimization measures should be identified.

In its April 22, 2016 correspondence to FERC, the Applicant advised that the
remaining areas that have not been surveyed for bog turtle will be surveyed once
access is available. As previously stated, the NYSDEC requests that the resulting

4
The bog turtle is a federally listed threatened species and a New York State listed endangered species.
5
According to U.S. Fish and Wildlife Service’s, “Bog Turtle Conservation Zones” guidance, revised April
18, 2001, bog turtles rely upon different portions of the wetland at different times of year to fulfill various
needs”, therefore the entire wetland is considered part of the protected zone.
6
NYSDEC staff recommend that all hydrostatic test water be released into uplands more than 300 feet
from wetlands that contain bog turtle habitat and with proper sediment and erosion control measures in
place.
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survey information be provided to NYSDEC staff for review, consideration and, if

necessary, supplemental comments, once available. In the meantime, in order to meet
the requirements of a complete application, NYSDEC staff request that the Applicant
provide measures that will be taken both during construction and operation of the
pipeline to avoid impacts to bog turtles, should it be determined that the remaining
areas are occupied bog turtle habitat.

Water Resources, Fisheries and Wetlands

1) NYSDEC previously identified an error in Table 10A-2 within Resource Report 10

(November 2015). The reported number of mapped NYSDEC regulated wetlands
is inaccurate. NYSDEC staff finds that there are at least two additional NYSDEC
mapped wetlands (MD-26 and MD-29) that need to be represented on this table.
The mapped NYSDEC regulated wetlands MD-29 and MD-26 depicted on Pages
20 and 24 of the Wetland & Waterbody Delineation Maps by TRC created
2/17/16, appear to be connected to the delineated federal wetlands W-AI and W-
V, respectively. NYSDEC staff considers wetlands W-AI and W-V to be a single
wetland since they function as a unit in accordance with 6 NYCRR Part
664.7(b).7 NYSDEC (i) notified both the Applicant and FERC of this error by its
comments on the FERC application, submitted March 8, 2016 and (ii) restated
the error to the Applicant at an in-person meeting that occurred at NYSDEC’s
Central Office on April 4, 2016. NYSDEC again requests that the Applicant revise
all maps and tables to reflect that W-AI and W-V are NYSDEC regulated
wetlands.

2) The site specific HDD plans need to be updated to depict how the boring
locations will be isolated from wetlands and other waters of the United States.
Please show erosion and sedimentation controls on the plan.

3) Millennium’s April 22, 2016 letter quantified the impacts to NYSDEC Freshwater
Wetland Adjacent Areas (“AA”) where there would be a permanent change in
vegetation cover type. However, NYSDEC staff request that the total area of
AAs that will be impacted be provided, regardless if there will be a conversion of
vegetation type (i.e., total ground disturbance area for all AA).

4) The Project will be installed by a combination of HDD, conventional bore and

open trench. Please clarify the width of the permanently maintained ROW for
each of these installation methods along the entire pipeline route, including
uplands and wetlands. Additionally, for each installation method, please provide
the frequency of maintenance and methodology and justification for maintaining a
cleared corridor above the pipeline.

7
“Two or more areas of land and/or water, as defined in paragraphs (a) through (d) of section 24-0107(1)
of the act, may be considered to be a single wetland for regulatory purposes if they are determined by the
commissioner to function as a unit, or to be dependent upon each other, in providing one or more of the
wetland benefits listed in paragraphs (a), (b), (c), (e), (f), and (i) of section 24-0105(7) of the act, and if
they are no more than 50 meters (approximately 165 feet) apart. The areas will be included, and labelled
as a single wetland, on a map according to the procedures for amending a map set out in subdivision (a)
of this section.” 6 NYCRR Part 664.7(b)
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5) In its April 22, 2016 letter to FERC, Millennium stated that it believes that a
conventional bore is not feasible to cross Caitlin Creek and Wetland W-Al at MP
4.08 since this crossing length would exceed the length of the conventional bore
technology. Please indicate if an HDD crossing be feasible in this location.

6) Please provide a response to the following items:

a. Will materials resulting from trench excavation be temporarily sidecast into
waters of the U.S. and if so, how long will the material be stockpiled?
b. Will any of the permanent access roads be constructed in wetlands or within
FEMA mapped 100 year floodplains?
c. What is total acreage of discharge into wetlands and other waters of the
U.S.? Please provide a breakdown of both temporary and permanent
discharges for the entire Project.
d. Does the Project involve the installation of any culverts associated with
access roads? If so, please indicate which streams will be culverted and if
the culverts will be embedded.

If you have questions, please feel free to contact me at (518) 402-9153, or

karen.gaidasz@dec.ny.gov; or Sita Crounse, Office of General Counsel at (518) 402-9198
or sita.crounse@dec.ny.gov.

Sincerely,

Karen M. Gaidasz, Project Manager

Major Projects Management Section
Division of Environmental Permits

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Document Content(s)

2016.06.17 NYSDEC Comments on 401WQC .PDF.............................1-5