RE: GALLOO ISLAND WIND, LLC. Case No.

15-F-0327

Date: September 4, 2018

Document title: Response to DEC’s Amended Protective Order

Submitted by:

Clifford P. Schneider, pro se

47243 Wood Cliff Drive
Wellesley Island, NY 13640
(315) 215-4019
clif.schneider@gmail.com
September 4, 2018

Hon. Kathleen H. Burgess

Secretary to the Commission
Three Empire State Plaza
Albany, New York 12223-1350

Co-Presiding Examiner Ashley Moreno

NY Department of Public Service
Three Empire State Plaza
Albany, New York 12223-1350

Co-Presiding Examiner James Costello

NY Department of Public Service
Three Empire State Plaza
Albany, New York 12223-1350

and

Associate Examiner Michael Caruso

New York State Department of Environmental Conservation
Three Empire State Plaza
Albany, New York 12223-1350

RE: GALLOO ISLAND WIND, LLC. 15-F-0327

Dear Secretary Burgess, Judge Moreno, Judge Costello and Judge Caruso:

I want to respond to the motion by NYSDEC to amend your November 10,

2017 Protective Order. I believe the purpose of the restrictive
conditions and the requirement that all those attending the site visit
to Galloo sign the protective order may be designed to protect the
interests of the Applicant’s project rather than protecting endangered
or threatened species habitats, particularly the potential for bald
eagle nesting on Galloo. My response, however, is submitted for the
express purpose of protecting threatened and endangered species that
may exist on Galloo island.

In 2015 and 2017, NYSDEC conducted aerial surveys of Galloo and found
no nests, nor did biologists who conducted avian surveys in 2015
observe an eagle nest (W. Evans, pers. comm., Aug. 2018). That
assessment has now changed with the recent report of a possible bald
eagle nest on Galloo. What follows is a timeline of notifications and
responses from NYSDEC as well as the Applicant that will help inform
the record:

NYSDEC TIMELINE
1. Soon after the Henderson public hearing on August 14, 2018 the
Maurers and I received a report, including photographs, of eagles
nesting on Galloo. The photos were taken in November 2017 (see
Attachment 1).
2. I immediately forwarded photos and informant’s contact
information to NYSDEC Region 6 Habitat Supervisor in Watertown on
August 20, 2018 with a request NYSDEC investigate and verify. I
provided additional photo documentation on August 23, 2018.
Importantly, the photos and information I sent to NYSDEC
contained nothing that would describe the precise location.
3. As of the date of this letter, NYSDEC has yet to contact the
informant requesting more specific nest location information. I,
too, received no response from Region 6 office of NYSDEC.
4. NYSDEC’s response to the bald eagle nesting report was an August
24, 2018 email to parties, not mentioning bald eagles as an
issue, but proposing an amendment to the November 10, 2017
Protective Order. Included in the request was a set of conditions
related to what may be discussed and observed during the site
visit to Galloo, as well as a condition that all parties visiting
the site sign the amended Protective Order (filings on August 31,
2018, Attachment 2).
5. NYSDEC’s conditions also included a warning: “Such persons and
the parties they represent may also be liable criminally or
civilly under relevant federal and State statutes and
regulations.”
6. NYSDEC in an August 27, 2018 email to me, with copies to all
parties, stated that “DEC staff expect to search for the
potential bald eagle nest during the site visit…” [NOTE: This
email was not filed by DPS, but should have been filed along with
the other email communications]. The site visit, as currently
 planned, will occur nearly one month after my initial
notification of the nest to NYSDEC.

NYSDEC showed an unusual response to the notification of an important,

new report of bald eagle nesting in Jefferson County. It was more
oriented toward suppression and control than investigation. The
Applicant’s actions also showed a pattern of trying to suppress, hide
and withhold information related to bald eagle nesting on Galloo:

APEX TIMELINE
1. In Exhibit 22 Applicant reports “NYSDEC subsequently confirmed
that no known bald eagle nests within 10 miles of the Project in
spring 2015 (email correspondence from NYSDEC received September
30, 2015) and in spring 2017 (email correspondence from NYSDEC
received April 13, 2017).”
2. In June 2016 Applicant initiated a Point Count Eagle Survey on
Galloo to document bald eagle activity (October 13, 2017 filing
letter)”.
3. Typical Point Count Eagle Survey effort recommended by the USFWS,
for example, would entail for Galloo, approximately 5-10
observation points with at least one hour of effort per point,
per month (Eagle Conservation Plan Guidance, USFWS, April 2013).
The Galloo eagle survey would have been completed by the
Applicant a year after it began in May 2017.
4. In a letter filed with DPS on July 14, 2017 David Stilwell, Field
Supervisor from the Cortland office of USFWS noted, “Our
recommendation (to Applicant) was to gather additional eagle use
data in the project area so that a proper risk assessment could
be completed. Apex indicated that they would update the Service 6
months after initiating the work and also provide data to us, but
we have no record of receiving any information to date.”
5. After the USFWS complaint, the Applicant met with Boston office
USFWS staff on August 30, 2017 after completion of their eagle
survey and reported in Appendix DD Take Permit Application:
“Because it is possible that nesting could occur during
 development, construction or operations, the Applicant
coordinated with the USFWS on potential responses to future
nesting in a meeting on August 30, 2017. USFWS agreed that at
this late stage in development it would be inappropriate to move
turbines, curtail turbines, or implement other measures with
large impact on generation in response to future nesting on the
island if it occurs, but that one of the following options were
available to the Project to ensure compliance with federal
regulations, depending on when nesting occurs: 1) Development:
obtain a permit to remove the nest to deter nesting where
construction or operations risk would be anticipated, 2)
Development or Construction: obtain a permit to harass eagles to
deter them from nesting in areas of potential risk, or 3)
Construction or Operations: monitor the nest to determine how
they respond to the project (Appendix DD, p. 21)”.
6. The nest removal paragraph occurred at the very end, as an add-
on, of the bald eagle section in the Article 11 Take Permit
appendix. In a preceding section that specifically discusses
habitat and nesting the report states, “Therefore, although
nesting could occur during development, construction or
operations of the facility, it would likely only occur after
other more suitable nest sites in the region become occupied.”
This statement is what would be expected given two aerial surveys
conducted by NYSDEC found no evidence of bald eagle nesting on
Galloo. The nest removal paragraph, as an add-on, however,
suggests Apex learned about the nest after the Take Permit report
was first drafted, sometime in 2017.
7. Another important component of the Article 11 Take Permit that
affects bald eagles is the request by the Applicant to take
(kill) three bald eagles during the 30-year period of the
project, with undoubtedly some provision for re-adjustment if
three were killed before the 30-year period expired.
8. On September 27, 2017 the Applicant submits Galloo Island Wind
initial application, but withholds entire Appendix DD Article 11
Permit Application, including the section discussing bald eagle
 nest removal and harassment. When I challenged to release the
information, the Applicant requested “an exemption from
disclosure.”
9. In October 13, 2017 “Letter Regarding Access to Redacted
Materials” Applicant responded to my request for eagle survey
results conducted on Galloo by denying access: “The surveys
reference by Mr. Schneider were completed in coordination with
USFWS as it related to permitting under the federal BGEPA. All
avian studies required as a result of the Article 10 process have
been provided by the Applicant.” Examiners responded that I
should request Point Count Survey results during hearing phase,
which I have done.
10. In November 10, 2017 “Ruling on Request for Confidential
Treatment of Information” examiners concluded, “Galloo’s request
for exemption of disclosure is granted with respect to page 4 of
Appendix DD, the map that includes protected habitat locations.
Its request is denied with respect to the remaining information.”

CONCLUSION:

NYSDEC appears more intent on controlling the discussion and

communication during a site plan visit, than locating, identifying and
publicizing possible bald eagles nesting on Galloo Island.

I am astonished by NYSDEC’s initial reaction to reports of a possible

bald eagle nest on Galloo Island. It has been over two weeks and
NYSDEC has not contacted the informant for nest location and will have
delayed searching Galloo for nearly a month. This is very odd, given
the circumstance of this situation. A more rational, immediate
response would allow NYSDEC staff adequate time to find the nest,
determine its origin and if it had been used to produce young eagles.
Trying to do all this during a single-day, site visit seems foolhardy
and ill-advised.
Even stranger was NYSDEC’s first reaction a few days after my initial
notification and request for investigation. Instead of immediately
checking the veracity of the report, NYSDEC proposed to amend the
Protective Order for Confidential Information. The amendment included
a suite of restrictions that go above and beyond the normal focus of
not revealing a “precise location” of a nest. The prohibitions
include: no photos, no videography, no notes, and no use of
information outside the Article 10 proceeding. Not only is NYSDEC
proposing that we sign their gag order, but also the most outrageous
condition is an implied threat that if we were to take notes, for
example, we may be liable criminally and prosecuted.

This is unprecedented. NYSDEC’s proposed conditions are not designed

to protect threatened and endangered species habitats as they suggest.
These actions, in my view, are geared to stifle discussion and squash
a story that has the potential to add greater complexity, review and
assessment of impacts than are currently available in Apex’s
application. I also suspect that NYSDEC’s most recent request seems to
confirm that they believe threatened or endangered species WILL BE
VIEWED on the site visit. NYSDEC seems to concede there is a nest that
will be viewed, and I certainly hope that is the case, but we should
also be prepared if we find the nest on Galloo was destroyed.

Based on the actions of Apex, it is reasonable to conclude they knew

about the nest from their consultants who conducted the eagle survey.
The nest was constructed in either the spring of 2016 or 2017, a time
when the Applicant’s consultants were surveying Galloo, probably at
least one day per month looking for eagles. I believe a competent,
capable survey crew had to know about the nest.

The Applicant completed a full year’s bald eagle survey on Galloo

without contacting USFWS or providing any data as they had previously
agreed to do. They met on August 30, 2017 only after USFWS complained
in their July 14, 2017 letter the Secretary.
The only reference to this meeting in the Applicant’s Take Permit
report was what to do in the future if a bald eagle nest is found on
Galloo. From this discussion of nesting hypotheticals Apex reports
that USFWS agreed that their project was too far along to consider
adjusting turbine placements (even though no application had been
filed at the time) and that the agency approved the idea of destroying
a nest if one appears and/or harassing any eagles that might try to
nest. Although this kind of discussion by the Applicant suggest they
knew a nest had been constructed on Galloo, they nevertheless failed
to inform USFWS staff (T. Sullivan, USFWS, pers. comm., August 24,
2018). I am also struck with the Applicant’s suggestion that their
project was set in stone and could not be modified. Really?

Consider, too, that on August 30, 2017 Apex and the USFWS were talking
about killing three eagles during the life of the project, destroying
eagle nests if they appear and harassing bald eagles if they attempt
to nest, and today NYSDEC is threatening criminal prosecution if
parties to this proceeding talk about, take notes, or photograph an
eagle nest. This is offensive, and I hope the irony of it all is not
lost.

Regardless of any agreements to remove nests and harass eagles, if

confirmed, bald eagles nesting on Galloo Island is something to
highlight, publicize and celebrate. It would also warrant aggressive
action by NYSDEC to protect and guard the resource as they outline in
the 2016 Conservation Plan for Bald Eagles in New York State. Federal
law may allow nest destruction and harassment of bald eagles, but New
York’s Conservation Plan for bald eagles does not. On the contrary, it
recommends a ¼ mile buffer around each nest, which would require a
major reassessment of the Applicant’s facilities layout, since not
many sites on Galloo are more than ¼ mile from a turbine. Moreover,
the USFWS is not a party to this Article 10 proceeding, whereas NYSDEC
is a party and its commissioner is a member of the siting board;
consequently, the state’s Conservation Plan for Bald Eagles should be
a more important component to the discussion and should be pursued
vigorously.

Your Honors, none of us who are concerned for the protection of bald
eagles and other listed species on Galloo Island will do anything to
jeopardize their safety and sustained health. No one is going to
release “precise information” on nesting habitats for threatened or
endangered species on Galloo. NYSDEC’s new list of conditions relate
to information obtained during the site visit, except for the first
one which is a blanket “Thou shalt not”. At the most, it should be
thou shalt not disclose information obtained “by and through the site
visit”, because as written it could apply to any information about
threatened or endangered species obtained at any time through any
means and that goes beyond information obtained in the site visit.

Finally, the threats to Galloo are not from the parties site visit,
but from the proposed development of Galloo and those who plot to keep
potential adverse impacts out of public view. This issue is extremely
important, it needs to be verified now rather than later, and the
discussion needs to be open and transparent, not hidden under an
unprecedented restriction on dispersal of information and
communication.

Respectfully yours,

Clifford P. Schneider
Attachment 1
Attachment 2

Case 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

New York State Department of Environmental Conservation Proposed Protective Order

Conditions

 The precise location or identity of any threatened, endangered, or rare species will not be
released or made available from the recipient to the public or to other parties.
 The information gained will only for the specific purpose of development of the parties’
participation in the Galloo Wind Article 10 proceeding. Use of this information for any
other purpose is prohibited.
 The use of a cell phone, camera, drone, or other technology to photograph, video, or record
threatened, endangered, or rare species and their habitat is prohibited.
 The creation of digital or written notes on any site visit regarding the location of threatened,
endangered, or rare species and their habitat is prohibited.
 If a person believes that they may have disclosed protected threatened and endangered
species information, they will notify the DEC Region 6 Natural Resources Supervisor
immediately.
 Persons who use or disclose this information contrary to the terms of this Protective Order
will be subject to such sanctions as may be imposed by the Examiners, which may include
limitation or termination of the responsible party's participation in these proceedings and
report to a professional conduct committee or licensing authority. Such persons and the
parties they represent may also be liable criminally or civilly under relevant federal and
State statutes and regulations.
 The obligation of a person in possession of threatened, endangered, or rare species
information to safeguard it from public disclosure continues after the termination of the
Galloo Wind Article 10 proceeding.
 Persons participating in any site visit must adhere to DEC Staff instructions regarding
proximity to and behavior near threatened, endangered, or rare species and their habitat.