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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:
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
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