DEC~ Comment Letter ~ BP~ SEQR ~ Cape Vincent Wind Power Project

Alexander B. Grannis
Commissioner DEC

February 29, 2008

Mr. Richard Edsall, Chairman
Town of Cape Vincent Planning Board
1964 NYS Route 12 E
PO Box 680
Cape Vincent, New York 13618

Re: State Environmental Quality Review (SEQR)
Cape Vincent Wind Power Project
BP Alternative Energy
Towns of Cape Vincent and Lyme, Jefferson County

Dear Mr. Edsall:

The New York State Department of Environmental Conservation (DEC) has reviewed the Draft Environmental Impact Statement (DEIS) for the proposed Cape Vincent Wind Power Project, Towns of Cape Vincent & Lyme, Jefferson County, New York, December 7, 2007, prepared by Environmental Resources Management (ERM). The project sponsor, BP Alternative Energy, proposes construction and operation of an approximately 210 megawatt (MW) wind power project consisting of up to 140 wind turbines with a nameplate capacity of 1.5 MW to 2.5 MW, construction of approximately 18 miles of gravel access roads, installation of 18 miles of electric collection line, construction of an operations & maintenance (O&M) center on a 5-acre site, construction of a collection substation on a 3-acre site, and a 115kV transmission line to the existing electrical substation in the Town of Lyme. The project includes 2-3 meteorological (met) towers to be spaced across the project area, and temporary ancillary construction facilities, including two concrete batch plants, and cleared areas for equipment laydown, construction parking and construction management trailers.

DEC's review of the DEIS has found serious deficiencies in terms of the proposed project scope, location of proposed project components, characterization of natural resources in the project development area, assessment of potential environmental impacts, and discussion of mitigation options. Additionally, the intention to defer completion of the proposed project layout, basic resource studies and other development plans until the Final Environmental Impact Statement


FEIS), or later, limits meaningful review and comment on the proposed action by involved agencies and the public, and does not allow for a full public discussion of reasonable alternatives. Review of the DEIS shows that at least 21 plans, studies or reports necessary to adequately assess the potential environmental impacts of the project have been deferred to the FEIS or later. Several of these are important for DEC's consideration of permit applications that are anticipated to be required for construction of the project. These include a detailed map of the turbine array and project components, turbine specifications, wetland delineations, transportation study and routing plan, final visual analysis, archeology and architectural surveys, Indiana bat survey, Blanding's turtle trapping study, stormwater and erosion control plans, including a survey of karst features, and an environmental monitoring plan. Further, the DEIS does not anticipate that a number of items recommended by DEC in comments on the Draft Public Scoping Document will be discussed even in the FEIS, including source location(s) for aggregate materials, an environmental restoration plan, an operations & maintenance plan, a compensatory wetland mitigation plan, an invasive species control plan, or a plan for offsets to impacts to visual and historic resources.

DEC strongly recommends that a Supplemental DEIS (SDEIS) be prepared to include more complete data pertaining to these resources, in order that involved agencies and the public have the opportunity to comment on potential impacts to these resources. As an involved agency under the State Environmental Quality Review (SEQR), DEC must make findings based on the record in the FEIS prior to approval of any agency permits that may be required for project construction. A complete EIS record is critical to the DEC, and without it the Department will have limited ability to make the required findings as an involved agency.

DEC provided comments on the DEIS Draft Scoping Document, dated August 13, 2007 in a letter to the Planning Board dated September 14, 2007. The Draft Scoping Document proposed the EIS process "will take place in two phases. In the first phase, wider corridors of potential impact throughout the Project will be studied" and "will be presented in the Draft EIS." Then, following a "more detailed turbine plan which will specify the final placement of turbines, roads, a substation, electrical interconnects, transmission line, and a permanent maintenance facility…a revised Draft EIS will be prepared…" (Draft Scoping Document, page 2). In comments on the Draft Scoping Document, DEC stated that, "SEQR regulations at 617.9(a)(7) provide an existing process for the lead agency to require a supplemental EIS, subject to the full set of procedural requirements for the DEIS." In order to ensure that all phases of the DEIS process allow for ample review by involved agencies and the public, DEC further recommended that "…a formal scoping process be conducted again prior to preparation of a SDEIS, in order that the full range of issues of concern to involved and interested parties can be addressed." DEC is disappointed that the Final Public Scoping Document, dated October 8, 2007, fails to include the "revised" DEIS, and defaults to a schedule that defers a full discussion of project details and potential impacts to the FEIS.

The following comments on the DEIS represent DEC's concerns for the proposed Cape Vincent Wind Power Project specifically and for cumulative impacts on the region from all proposed wind power projects in the general area. These comments include recommendations for further discussion of these issues in the SDEIS.
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Project Description.
The DEIS states that "BP Alternative Energy will determine final placement of the turbines and roads once it has completed its analysis of the wind resource and wetland and archeological surveys" (DEIS pages E-2, 6). It is also stated that the final turbine layout is dependent on the type of turbine selected. "Once a final decision is made on the turbines to be used, siting of individual turbines, as well as the associated roads and electrical collection system, will be performed. These detailed maps will be included in the FEIS" (DEIS page 20). Additionally, the DEIS states that, "The FEIS will include the drawings, specifications and power curves of the turbines" (DEIS pages 6, 10).

Other project components include: A concrete batch plant (up to 10 acres), Project substation (3 acres), operations & maintenance (O&M) facility (5 acres), and construction staging and laydown areas (DEIS page 8). In addition, the DEIS states that the project scope will include two central parking areas at each end of the project and 3 acres cleared for site construction management trailers and parking (DEIS page 15). Other than an approximate substation location (Figure 1.1-3), and an indication that the substation is expected to be "along the abandoned railroad bed between Rosiere and the Lyme town line" (DEIS page 7), there is no information in the DEIS regarding the location of any other project components. The project description also states that "2-3 meteorological towers will be spaced across the project area" at the completion of the project. The DEIS provides no additional information regarding the type or location of these towers.

DEC recommends that the SDEIS include proposed specifications and locations for all of the project components above, or if a decision regarding choice of turbine model has not been finalized, the potential arrays for the configuration of the wind turbine placement. This should include a map for the location most likely to be used for turbine placement based on the turbine size and types available. For example, if the smaller 1.2 – 1.5 MW turbines are going to be used and 140 turbines are needed for the project, then a map showing the potential locations for the 140 turbine array should be included in the SDEIS. Likewise, if the Project requires 100 of the 1.65 MW turbines then a map show the potential location of the 100 turbines should be included in the SDEIS. The Project boundary, turbine placement array, concrete turbine pads or footprints, routes of transmission lines, roads requiring construction upgrades, project substations, and any other constructed buildings such as maintenance facilities should be included. These maps should also be made available in an electronic format such as shapefiles, coverages, geodatabases, and/or geometric networks, to facilitate review of project impacts by involved agencies and the public.

Project Alternatives.

This section of the DEIS includes criteria for project site selection (DEIS Section 1.3.1) and project alternatives evaluated (DEIS Section 1.3.2). DEC guidance provides that the alternatives described should include those that avoid or reduce adverse impacts identified in the environmental review of the proposed action (e.g., can these impacts be avoided or reduced by reducing the project scale, re-configuring or re-locating project components?) While the DEIS adequately discusses the factors that make the project development area conducive to a utility-scale wind power project, the lack of any detail in the project scope precludes meaningful discussion of alternatives, as there is no

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"project" to compare alternatives to. SEQR regulations at 6 NYCRR 617.9(b)(5)(v) states, " The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed."[1] The project description in this DEIS fails to do this.

DEC recommends that the SDEIS include a proposed project layout that includes specifications and locations of all proposed project components sufficient to permit a reasonable comparison of alternatives. Details to include in these evaluations should include the factors that led to the specific turbine layout for each alternative, such as wind resource evaluation, turbine spacing and/or orientation, wind turbine model selection, site constraints (setback requirements, avoidance of wetlands, landowner preference, etc.), access road and interconnect design considerations, and avoidance of identified adverse environmental impacts (e.g., archeological sites). The range of alternatives may also include, as appropriate, alternative sites, technology, scale or magnitude, design, timing, use, and types of action.

DEIS Section 1.3.2, Project Alternatives Evaluated, again includes a discussion of factors that are used in planning a wind power project, but no specific alternatives are described other than that the project is sized to be a 210 MW project. In the discussion of project size alternatives (DEIS page 20), the DEIS states that "a significant reduction in the Project's generating capacity would jeopardize its financial viability" and, "Some smaller wind energy projects that have been built have only been made possible because of large financial grants." These statements are not accompanied by any supporting data or references. DEC has reviewed a variety of wind power projects in New York State, including those with fewer than 20 turbines to those with more than 200. While DEC does not seek details regarding the financial structure of a project sponsor, a statement dismissing an alternate project scale on the basis of financial hardship requires better supporting rationale.

The Alternative Project Design section (DEIS pages 21-22) states, "Impacts on wetlands will result from some stream crossing and some unavoidable wetland areas that are crossed by roads and/or collection lines. It is unlikely that the project layout will be able to eliminate all impacts to wetlands, since complete avoidance would likely result in the need for increased impacts due to additional lengths of roads and trenching for electrical interconnects…" Again, this conclusion cannot be verified, or alternatives evaluated, in the absence of a specific proposed project layout, and an alternative project layout that shows maximum avoidance of wetlands.

Project Site Geology and Topography.

This section states that depth to bedrock in the project development area varies from exposed at the surface to an estimated maximum of 7 meters below ground surface, and the depth to bedrock in much of the study area is generally less than two meters (DEIS page 28). With the typical foundation anticipated for the wind turbines in this project extending to a depth of 10 feet below ground, or placed on top of and anchored into bedrock (DEIS page 6), it can be expected that a substantial number of the proposed turbines will interface with bedrock. The project area is underlain by Kirkland Limestone, Rockland Limestone, and Chaumont Limestone. All three bedrock formations exposed in the study area are regularly fractured by joints, with solution enlarged joints


of up to 30 centimeters in the Chaumont formation at the extreme northeastern part of the study area (DEIS page 29). The DEIS states further in Section 2.4.5, Drainage Features, that detailed mapping of solution-enlarged joints that may represent conduits for surface water flow will be gathered and presented in the FEIS (DEIS page 38). Further, in DEIS Section 2.5.1, Ground Water, it states that detailed geologic and ground water investigations will be conducted prior to construction to determine site-specific features including direction of ground water flow and depth to ground water, and fracture type, orientation, distribution and geometry (DEIS page 40).

DEC recommends that a more complete discussion of karst features be included in the SDEIS. The location of bedrock fractures and sinkholes should be shown relative to proposed project activities. Where carbonate rocks are exposed at land surface, solution features create karst topography, characterized by little surface drainage as well as by sinkholes, blind valleys and sinking streams. Because water enters the carbonate rocks rapidly through sinkholes and other large openings, any contaminants in the water can rapidly enter and spread through the aquifers.[2]

The SDEIS should also include maps and a summarization of soil types at each turbine location, including hydric and prime farmland soils. An estimate of the potential areas which may be impacted from the construction of the project components should also be incorporated into the SDEIS by including maps and information from the Jefferson County soil survey and the USDA SSURGO databases. This will allow a more accurate assessment and review for the identification of slopes exceeding 15%. Maps produced from this assessment should be included in the SDEIS.

DEC recommends that a plan be prepared that specifies procedures for conducting detailed subsurface investigations at turbine site locations and other project components that may interface with limestone/karst features. The plan should be prepared by an engineering firm with expertise and experience in developing construction projects in karst areas. The plan should specify actions to be taken if karst features are identified or suspected, including further investigation (e.g., dye testing), turbine re-location, determination of the effects of blasting, or engineering construction controls.

In addition, a detailed construction plan needs to be developed to incorporate stringent containment of construction materials, particularly concrete slurry. This would include such practices as the use of watertight forms, silt/stormwater fencing, controlled concrete truck washout areas, and covered storage of equipment and construction chemicals. Engineering specifications to describe these proposed practices need to be detailed in this plan.

The DEIS recognizes that additional impacts may result from spills of petroleum and other chemicals during construction and operation of the project, and that implementation of the Stormwater Pollution Prevention Plan (SWPPP) prepared to comply with the SPDES Stormwater General Permit for Construction Activities should prevent or minimize spill incidents and


maximize control and cleanup of any of these incidents (DEIS page 44). DEC will review the SWPPP prepared for the project to ensure that plans for site characterization, project construction and construction monitoring have been included and adequately address these concerns.

Surface Water.

Three streams in the project development area are designated "navigable water," and therefore protected under Article 15 of the Environmental Conservation Law. These include portions of Kent's Creek, Three Mile Creek, and the Chaumont River (DEIS page 43). DEC recommends that the SDEIS include a map showing proposed project components in relation to regulated portions of these water bodies. A DEC permit is required for any project component that will disturb the bed or banks of these streams.

Wetlands.

The DEIS states that wetlands in the project development area were identified by a desktop assessment involving review of National Wetland Inventory (NWI), DEC wetland maps, and other mapping sources (DEIS Section 2.7.1.1), and through field reconnaissance resulting in approximate wetland boundaries (DEIS Section 2.7.1.2). Approximately 77 % of the wetlands within the project development area are classified as palustrine forested wetlands (DEIS page 56). DEIS Section 2.8, Wetlands Impacts, reiterates that the configuration for the wind turbine array is not complete at this time, but that the project "is being designed to avoid permanent impacts on wetlands" (DEIS page 57). As stated previously, in the absence of a proposed project component layout, showing turbine locations, access roads, electrical interconnects, and other project components, there is no way to meaningfully comment on this conclusion. This section further states that there "…may be turbine locations which, while upland, require access that will necessitate wetland crossings. Impacts to these wetlands will be short-term and followed by restoration of the affected areas, as recommended by local, state and federal wetland authorities."

Projects that propose to disturb regulated wetland areas, buffer areas and protected streams require permits from DEC and the U.S. Army Corps of Engineers (USACE). DEC wetland permit regulations at 6 NYCRR 663.2(z) define a "regulated activity" as any form of draining, dredging, excavation, or mining, either directly or indirectly; any form of dumping or filling, either directly or indirectly; erecting any structures, constructing roads, driving pilings, or placing any other obstructions whether or not changing the ebb and flow of the water; any form of pollution, including but not limited to installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquefied wastes into or so as to drain into a wetland; or any other activity which substantially impairs any of the several functions or benefits of wetlands which are set forth in section 24-0105 of the (Freshwater Wetlands) Act. These activities are subject to regulation whether or not they occur upon the wetland itself, if they impinge upon or otherwise substantially affect the wetland and are located within the adjacent area.

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Before DEC can consider a permit application, wetland delineations prepared for the project must be verified by agency staff. DEC jurisdiction and resulting acreage impacts may vary based on DEC verification of wetland delineations. It is DEC policy that wetland impacts are not permitted, even with mitigation, until other alternatives have been explored, including avoidance, minimize or reduction of impacts. Generally applicants are required to: 1) Examine alternative project designs that avoid and reduce impacts to wetlands; 2) Develop plans to create or improve wetlands or wetland functions to compensate for unavoidable impacts to wetlands; 3) Demonstrate overriding economic and social needs for the project that outweigh the environmental costs of impacts on the wetlands. These factors need to be thoroughly discussed in the SDEIS.

DEC recommends that the SDEIS include wetland delineation reports for any areas that would be impacted by project construction, including project components as described above, and road improvements necessary to deliver project materials, such as road widening, increasing turn radii, and modifications to culverts, both within the project development area, and along delivery routes identified in a transportation plan. Additionally, the SDEIS would appropriately include discussion of how the proposed project will accomplish wetland avoidance and impact minimization. As stated in DEC's comments on the DEIS Draft Scoping Document, this discussion would include alternative project designs that were examined to avoid and reduce impacts to wetlands, and demonstrate overriding economic and social needs for the project that outweigh the environmental costs of impacts on the wetlands.

The distinction between "temporary" and "permanent" wetland impact needs to be clarified in the SDEIS, keeping in mind that simple re‑grading to pre‑construction contours following excavation in a wetland area may not be enough to restore the full function of the existing wetland area, and therefore would be a permanent rather than a temporary impact. Additionally, DEC considers the clearing of a forested wetland to be maintained as a non-forested wetland (such as the corridor of an overhead or underground interconnect line) to be a permanent impact, even if there is no fill, drainage or other physical disturbance of the wetland. This could be a significant impact in the project development area (including the transmission line), as forested and shrub-scrub wetlands are the dominant wetland type (DEIS page 57) and construction of the transmission line anticipates that forested wetland will be permanently impacted due to clearing (DEIS page 58). The DEIS statement that "all efforts will be taken to avoid temporary impact to forested and scrub-shrub wetlands" (DEIS page 58) is insufficient to adequately describe wetland impact minimization and allow for meaningful comment. All permanent impacts, including those described above, must be factored into the total area of wetland impacts for which permits and mitigation are required.

The SDEIS should discuss the control of invasive species to minimize the spread of invasive propagules throughout the project development area, and particularly in regulated wetland and stream areas. The DEIS includes no consideration of invasive species issues as recommended by DEC in comments on the DEIS Draft Scoping Document. The discussion should include measures to ensure no net increase in the areal coverage of invasive species in the

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project development area. Post-construction monitoring and periodic management, including invasives control and re-planting of preferred indigenous species to ensure survival should also be included in the discussion. An Invasive Species Control Plan will be a requirement of any permits issued by DEC.

DEIS Section 2.8.3, Mitigation Measures, fails to include any activities that can be described as mitigation. This section states that "access roads and electrical interconnects may all be re-routed to varying degrees in order to avoid or minimize the impacts to sensitive or protected wetland features" and "a complete wetland delineation will be conducted" and "additional re-routing may take place based upon these further delineations" (DEIS page 59). For unavoidable construction within wetlands, the only remedy offered is "best management practices" and "training of construction staff" (DEIS page 59). If unavoidable wetland impacts are expected to result from project construction activities, the SDEIS must describe the location, type and areal extent of impacts anticipated from each project component, options under consideration for compensatory mitigation that conform to DEC wetland mitigation guidelines[3], and proposed locations for wetland mitigation areas. Proposed wetland mitigation sites need to be included as a project component.

Mitigation to offset permitted permanent impacts to wetlands must be developed in consultation with DEC and USACE. Mitigation activities must be conducted concurrently with other construction activities; not after other construction activities have been completed. For any proposed wetland compensatory mitigation sites, the anticipated legal mechanism to secure long term access and management of the property should be discussed (e.g., ownership, permanent easement, transfer to third-party conservancy organization). For DEC permits, the structure of this agreement will be required to be in a form acceptable to the Department.

Terrestrial Ecology.

DEIS Section 2.9.1.2, Vegetation: Rare Plant Species and Vegetation Communities of Ecological Significance, states that, “the project boundary has been expanded from the boundary described in the initial consultation letters provided to NYSDEC, the NYNHP, and the USFWS regarding threatened and endangered species and communities of ecological significance” (DEIS page 61). This expanded boundary should be provided, and any unique communities, or rare, threatened, or endangered species that are included in that boundary be identified in the SDEIS.

Table 2.9-1 (DEIS page 61) does not include a state listed threatened plant species known to occur in the area, the troublesome sedge (Carex molesta). The table and all other textual references to listed plant species should be corrected to include this species in the SDEIS.

DEIS Section 2.9.2.3, Wildlife: Wildlife Communities of Ecological Significance, Ashland Flats Wildlife Management Area, states that a 2,037 acre state wildlife management area (WMA) is located adjacent to the Project Area and contains both wetland and upland

habitats (DEIS page 72). The SDEIS should include a map depicting the WMA and the habitat types therein with relation to the current project boundary, turbine locations, roads, transmission corridor(s) and other aspects of the proposed project.

The Waterfowl Winter Concentration Areas section states that, “there are no federal or state-listed rare, threatened or endangered species that occur in the Fox Island-Grenadier Island Shoals...” (DEIS page 72). Although the Natural Heritage Program’s database is a valuable resource for identifying the presence of unique communities and rare, threatened and endangered species, the absence of a record is not conclusive evidence that such a community or species does not exist in a particular area. The SDEIS should include results of ecological surveys that may provide evidence of rare, threatened or endangered species, or ecological communities that were previously unrecorded. It should also be mentioned in this section that state listed species such as the endangered black tern (Chlidonias niger) are known to occur in the Wilson Bay Marsh, which is located within the project area.

DEIS SEQ CHAPTER \h \r 1Section 2.10, Terrestrial Ecology: Impacts--Project Components, reiterates that the configuration of the wind turbine array is not complete at this time, but the project is being designed to minimize permanent impacts to threatened and endangered (T&E) species or significant ecological habitats (DEIS page 73). It is also stated that temporary impacts to these resources are likely to occur during construction, and that these areas will undergo restoration as recommended by DEC. The SDEIS should include a full discussion of the terrestrial ecology investigation and show where impacts may occur along the proposed project layout. Actions that will be taken during construction to avoid or minimize habitat disturbance or impacts to T&E species should also be discussed. Finally, activities to restore habitat areas following construction should be described, including measures to ensure that preferred indigenous species are successfully re-established in disturbed areas. DEC Fish & Wildlife staff should continue to be consulted as appropriate to provide guidance on development and implementation of these activities.

The DEIS states in SEQ CHAPTER \h \r 1Section 2.10.2.1, General Impacts on Vegetation and Wildlife, that less disturbance-tolerant species common to upland forests may experience permanent displacement from areas developed by the project. Although recognizing that this may result in population stress and possibly minor decreases in local wildlife populations, this impact is not expected to significantly affect the viability of any wildlife species” (DEIS page 75). This conclusion is not supported by any data or reference. The SDEIS should provide a fuller discussion of this potential impact, citing habitat survey reports prepared for the project, and an analysis of how the proposed project would affect the species identified. The discussion should also note that less common species found in the project development area that are not tolerant of disturbance could also be permanently displaced, and subject to the same stresses as more common species when seeking suitable habitat and available mates. No references are given to support the assumption that bird species will reestablish perches in the project area, that most species will repopulate the project area after construction is complete, and that the effects of the project on the availability of food, mates, and migration corridors will be minor. Although the degree of any population decreases to wildlife species caused by this project cannot be
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determined at this time, the cumulative effect of several proposed wind projects in the region may have an adverse impact on one or more species that winter, breed, or migrate through the project area. This should be included as a component of the cumulative impact analysis.

In DEIS, Section 2.10.2.2, Threatened and Endangered Plant Species and Significant Ecological Habitats, it is stated that, “project facilities would not be sited in, or require permanent modification to” any of four significant ecological plant communities or five state-listed plant species (DEIS page 76). This should be revised to reference six state-listed species, including troublesome sedge (Carex molesta), as stated above. This section needs to be further clarified in the SDEIS to describe any temporary modifications or impacts that may occur to these resources; not only permanent modifications and impacts.

The DEIS indicates that results of a preliminary Blanding's turtle survey determined that potentially suitable habitat exists in and around the project development area, and that the largest potential impact on populations would likely occur during the construction phase (DEIS page 76). DEIS Section 2.10.3, Mitigation Measures, states that once an array plan is proposed, a complete wetland delineation and Blanding's turtle assessment will be conducted (DEIS page 77). Several construction-related activities are listed as mitigation (e.g., a trapping program to determine the presence of Blanding's turtles at Wetland B), but the list does not include the type of mitigation that DEC considers most effective in reducing losses from construction during the nesting season, which occurs prior to July 1. DEC recommends that SEQ CHAPTER \h \r 1springtime construction activities in areas where Blanding's turtles may potentially be impacted be delayed until after July 1 to avoid adverse impacts to turtles moving across the landscape during nesting season. The SDEIS needs to include the results of proposed subsequent studies (trapping program, habitat assessment), the proposed project layout, a full discussion of where impacts to this species may occur, and a more complete discussion of mitigation options, including DEC's recommendation to delay construction where these impacts are determined likely to occur.

Avian and Bat Resources.

DEIS Section 2.11: Avian Resources, Environmental Setting, discusses the Point Peninsula and Perch River Important Bird Areas (IBA) and the Ashland Flats Bird Conservation Area (BCA) located within and adjacent to the project area. These areas are significant to a number of listed bird species that breed, winter, and migrate through the region. In addition to the species mentioned, long-eared owl and northern shrike should be included as regularly using the grassland and wetland habitats that encompass the project area.

SEQ CHAPTER \h \r 1 The Study Protocol and Consultation section discusses the one-year pre-construction protocol used to study bird and bat resources in the vicinity of the project area and states it was “approved” by DEC (DEIS page 79). It should be clarified that DEC does not have approval authority over avian and bat study protocols. DEC provides recommendations in consultation with project sponsors to develop protocols that provide data to characterize existing use of the project development area (including airspace) by birds and bats. DEC has not determined that the proposed first year of studies at this site are the only set of studies that may need to be conducted. DEC did agree that the proposed protocol for taking a first-year look at the bird and

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bat resources of the area was valid, and based on results of these studies, may make recommendations for additional studies. It should be noted that since the time of our comments on the Draft Scoping Document, DEC has released for public review proposed Guidelines for Conducting Bird and Bat Studies at Commercial Wind Energy Projects.[4] The SDEIS should include reference to conformance with these guidelines.

DEIS SEQ CHAPTER \h \r 1Section 2.11.1.1: Fall and Spring Nocturnal Marine Radar Survey, states that, “The nocturnal marine radar survey is designed to characterize migration over the Project Area and determine the relative magnitude of the migration in comparison to other sites” (DEIS page 79). Although this is true, radar is also important for measuring the density and altitude of birds and bats at a particular location, which is important in estimating the impact that a particular project may have. It is also stated in this section that, “The percentage of avian and bat migrants that flew through the zone of risk (the rotor swept area) was low, averaging eight percent in the fall and 14 percent in the spring.” Compared with data collected at other proposed wind energy projects in New York, the percentage of animals flying in the rotor swept area at Cape Vincent is not low, but about average. Passage rates were below the state average in spring and above the state average in fall (Table 1: Publicly Available Radar Results for Proposed Wind Sites in New York). The second paragraph of DEIS Section 2.11.1.2: Fall and Spring Raptor Migration Survey, states that, “typical raptor species for central New York were observed.” This is an ambiguous conclusion; the species that are considered “typical” should be identified here. Additionally, Cape Vincent and western Jefferson County are generally not considered to be a part of “central” New York. These statements need further clarification in the SDEIS.

The second paragraph of SEQ CHAPTER \h \r 1Section 2.11.1.3: Breeding Bird Survey, states that the breeding bird surveys indicates the site does “not appear to have any large or unusual populations of breeding resident birds.” DEC disagrees with this statement. The grassland and wetland habitats in the Cape Vincent area are known to harbor the largest breeding population of threatened Henslow’s sparrows in the state, as well as northern harriers, upland sandpipers, grasshopper sparrows, vesper sparrows, horned larks, numerous species of waterfowl and marsh birds, and endangered short-eared owls have been seen in the region during the breeding season. Due to the presence of numerous state listed species in and surrounding the project area, and the pending finalization of the exact location of most project components, including turbines, roads, and transmission lines, DEC recommends an additional breeding bird survey be conducted to target listed species and their potential nesting locations, and results reported in the SDEIS. Having more specific data on where Henslow's sparrows, grasshopper sparrows, bobolinks, northern harriers, and other grassland birds may be nesting within the project boundary will be very helpful in appropriately siting various aspects of the project to minimize adverse impacts to these species. To determine the impact of wind development in such critical habitat on these and other species of grassland-dependent birds, it is necessary to conduct a minimum of three years of post-construction studies, including daily ground searches, habitat displacement/habituation surveys, and breeding bird surveys. The SDEIS should include discussion of a post-construction monitoring plan that includes protocols to study displacement of breeding birds.

DEIS SEQ CHAPTER \h \r 1Section 2.12.3: Potential Impacts to Bats, discusses results of AnaBat surveys at the met tower and at a riparian location. At the met tower location, bat activity suggests that operation of the project might result in lower mortality rates than average for a wind project; and at the riparian location, bat activity predicts mortality rates similar or higher than those experienced at wind projects in West Virginia or Tennessee. Although these predictions are based on some identified correlation between bat acoustical activity and mortality rates, predicting risk to migratory and breeding bats using acoustic monitoring is limited in its utility and results are conflicting (DEIS page 84). It has been suggested that bats are attracted to turbines, and even areas where pre-construction acoustical surveys indicated low use of the area by bats had unexpectedly high mortality rates.[5] The presence of endangered Indiana bats within the project area could result in direct or indirect mortality to this species. To evaluate the impact this project will have on bats in the region, a minimum of three years of post-construction studies should be conducted and include daily ground searches and extensive acoustical monitoring. The SDEIS should include discussion of a post-construction monitoring plan that includes protocols to study bat mortality.

DEIS SEQ CHAPTER \h \r 1Section 2.12.5: Comparison with Other Wind Projects–Raptor Migration Surveys, states that on-site surveys at the Cape Vincent Project Area “were initiated late in the season and only four counts were conducted” (DEIS page 85). With so few survey days, and less than 21 hours of observations made during both spring seasons, it is not likely that the survey captured the full extent of raptor migration in the area. Additionally, although surveys at this location may have recorded “less traffic than the known hawk watch sites in New York,” the number of raptors per hour observed at this site was much higher than what has been reported at other proposed wind projects in the state (Table 2: Publicly Available Raptor Migration Data for Proposed Wind Sites in NYS). When evaluating the potential impact a specific project might have on migrating raptors, the results of on-site surveys need to be put into context with observations from other potential wind development areas, not just locations known for their high concentration of raptors. This further analysis should be discussed in an SDEIS.

Cape Vincent’s coastal location at the confluence of Lake Ontario and the St. Lawrence River, and the expansive grassland and wetland habitats, concentrate raptors in the vicinity of the proposed wind project in greater numbers than has been seen elsewhere in the state at wind projects located further from the shoreline. Although it is stated that, “based on the spring and fall raptor surveys, it is difficult to conclude the magnitude of spring and fall migration at the Project Area,” for the reasons stated above, it is likely that the Cape Vincent area has a higher concentration of raptors migrating through, especially in spring, than any other proposed wind development site in the state. DEC recommends an additional year (spring and fall) of raptor migration surveys be conducted to better quantify the extent and timing of birds moving through the area. Surveys should take place weekly starting in mid-March until the end of May to cover the spring migration period, and from the beginning of September until the end of November to

cover the fall migration period. Post-construction studies should take place for a minimum of three years at the Cape Vincent Wind Project. In addition to ground searches, visual surveys should be conducted during spring and fall migration seasons to evaluate how birds react to the turbines as they move through the area.

In DEIS Section 3.0: Unavoidable Adverse Environmental Impacts, habitat fragmentation should be included as an identified unavoidable impact caused by the presence of many turbines spread out on the landscape, in addition to fatalities of birds and bats caused by direct collision with the turbines. This is a very important issue surrounding wind energy development, especially in the Cape Vincent area, where this indirect impact has the potential to result in significant effects on wintering raptors and grassland nesting birds.

SEQ CHAPTER \h \r 1Appendix F: Avian and Bat Studies for the Proposed Cape Vincent Wind Power Project.

The sixth paragraph of the Executive Summary incorrectly identifies Henslow’s sparrow and northern harrier as New York State species of special concern (Appendix F, page ii). These birds are both considered NYS threatened species. The SDEIS should include this correction.

DEC disagrees with the statement in the ninth paragraph that, “based on the topography and landform of the Jefferson County area, there is little to concentrate raptor movement though the study area” (Appendix F, page iii). As mentioned above, Lake Ontario and the St. Lawrence River are major influences on migrating raptors, especially in the spring as birds are moving north. Raptors will not fly over large bodies of water, preferring to utilize thermal updrafts of warm air over land to soar long distances with little energy expenditure. It is unclear what area is being compared in the statement, “the study results appear to indicate that migrant raptors are more dispersed when they pass through the proposed project area region.” More dispersed than where? The entirety of western Jefferson County is shoreline, and large numbers of birds move through the area during spring and fall migrations, as well as overwinter in the expansive grasslands along the coast.

In addition to the information reported in the Nocturnal Marine Radar Survey (Appendix F, page iii), the range of recorded passage rates and flight heights should be provided on a nightly and seasonal basis. Knowing maximum and minimum values for these parameters, in addition to the means and medians, will provide a clearer picture of how animals are using the airspace over the radar unit.

With a different location of the radar unit for the spring and fall sampling seasons, it is difficult to determine how much of the difference in recorded passage rates and flight heights is due to differences between the spring and fall, and how much is a result of differences between the coastal (and more northerly) site and the more inland (and southerly) site. Collection radar data at two separate locations adds uncertainty to the reliability of the estimation of nocturnal bird and bat movement through the project area. Although the results from this radar survey may not support the hypothesis that migrants concentrate along the shoreline, caution should be used when making conclusions based on this data set. Variables such the proximity to the coast line, habitat surrounding the radar, dates sampled, amount of time sampled each night, yearly variation, and weather trends/conditions all effect the resultant numbers of birds and bats detected at a site.

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Raptor Migration Surveys–Results and Discussion.

The list of raptor species in the second paragraph and in Appendix F, Table 1 does not include the endangered short-eared owl, yet this species is present in Appendix F, Table 2. If short-eared owls were observed during diurnal raptor migration surveys, information on how many individuals were seen, the date(s) of observation(s), the location(s) of the sightings, and any other relevant observations should be included in the report. The information presented in Appendix F, Table 2 should be calculated for each season separately, rather than combining one fall and two spring seasons of data. Information such as exposure indices and the percentages of birds flying below maximum turbine height may vary between spring and fall and from one year to the next. This would be better portrayed for each season independently.

As mentioned previously in this letter, the comparison of raptor migration data collected at Cape Vincent should not only be compared with local hawk watch sites, but also with data from other proposed wind development projects. Recording fewer birds at a proposed project site than what are seen at established hawk watches is not necessarily indicative of a low potential impact from turbines at the wind site. Evaluating potential wind projects in context with each other is important when determining likely impact to birds and bats.

Breeding Bird Surveys.

Several common species and some state listed species were observed on the breeding bird surveys. Western Jefferson County harbors the largest population of breeding Henslow’s sparrows in the northeast.[6] The potential for habitat fragmentation and avoidance of otherwise suitable nesting areas due to the presence of turbines on the landscape could adversely impact Henslow’s sparrows, northern harriers, and other grassland-dependant species. To reduce the potential for construction-related impacts, pre-construction surveys should be conducted to identify nesting habitat for these species. In those areas where it is determined that significant impacts would likely occur from construction activities, these activities should be minimized during the nesting season, from mid-May through July. A minimum of three years of post-construction surveys should be conducted to evaluate the impact turbines have on breeding birds. Along with ground searches, surveys should be done to determine the degree and duration of displacement and habituation of breeding birds in the vicinity of the project area. The SDEIS should discuss plans for these recommended studies and construction scheduling.

Winter Waterfowl and Raptor Surveys--Results and Discussion.

Appendix F, Table 8 includes two individual short-eared owls observed during fixed point surveys, though Appendix F, Figure 17 does not show the location from which these birds were seen. The text also mentions that six raptor species were recorded, yet only red-tailed hawk, rough-legged hawk, American kestrel and northern harrier are portrayed in Appendix F, Figure 17 and Appendix F, Table 7. These discrepancies should be clarified.

Although the DEIS does not discuss the presence of short-eared owls on the site, they are known to winter in the area, sometimes in large numbers. Data collected by DEC in the winter 2006-2007 recorded at least 17 short-eared owls in five separate roost locations, one within the project area and four within 1.3 miles or less of the project area. Short-eared owls typically roost on the ground during the day and may begin actively flying and hunting in early evening. The survey methods used for the winter waterfowl and raptor surveys were inadequate for targeting this species, with observations made too early in the day and not enough survey days conducted to fully estimate the number of owls.

Post-construction Monitoring.

Plans for a post-construction monitoring survey should be developed prior to the start of construction of the project. Post-construction should take place for a minimum of three years after the start of project operation and include daily ground searches, scavenger removal tests, searcher efficiency tests, bat acoustical monitoring, breeding bird displacement/habituation surveys, and raptor migration surveys. The use of radar during post-construction studies may be recommended to further quantify the impact turbines are having on birds and bats using the area. Details of the post-construction monitoring survey should be discussed with DEC and USFWS to develop a plan agreeable to all parties. A discussion of this issue needs to be included in the SDEIS.

Visual resources.

DEIS Section 2.14 describes the Visual Resource Assessment (VRA) conducted for the project. The study area for the VRA extends to a five-mile radius from the outermost turbines, in accordance with DEC Visual Policy (DEIS page 91). Consideration is also given to resources of high cultural or scenic importance located beyond the five-mile radius, as recommended by DEC. Visual mapping was conducted on a "hypothetical" layout of 86 Vestas 1.65 MW turbines. Since these turbines were distributed over the entire study area, the VRA was able to establish whether turbines would be visible to affected visual resources, even if a larger turbine array (up to 140 turbines) would result in a larger number of turbines ultimately being visible (DEIS page 92). The vegetated viewshed analysis prepared for the VRA (Appendix G, Figure 2) indicates that one or more proposed turbines would potentially be visible from approximately 77 percent of the five-mile study area (DEIS page 92). This includes portions of the Villages of Cape Vincent and Chaumont, the hamlet of Three Mile Bay, many shoreline areas throughout the study area (DEIS page 93), 44 resources of Statewide Significance, and approximately 20.6 miles of the 22.8 portion of the Seaway Trail (NYS Route 12E) that traverses the five-mile study area (DEIS page 108).

The DEIS fails to provide an adequate assessment of the potential impacts to the receptors identified above. The DEIS references a portion of DEC Visual Policy (Section V(C), Significance), noting that the policy defines a significant aesthetic impact as one "that may cause a diminishment of the public enjoyment and appreciation of an inventoried resource, or one that impairs the character or quality of such a place." The DEC Visual Policy is further referenced where it states, "Proposed large facilities by themselves should not be a trigger for a declaration

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of significance. Instead, a project by virtue of its siting in visual proximity to an inventoried resource may lead staff to conclude that there may be a significant impact" (DEIS page 108). On the basis of this reference, the DEIS concludes, "it is reasonable to conclude that simple visibility of the proposed wind farm (albeit a large facility) from any of these affected resources of statewide significance does not result in detrimental effect on the perceived beauty of the place or structure; nor will the Project cause the diminishment of public enjoyment and appreciation of an inventoried resource, or impair the character or quality of such a place" (DEIS page 109). This conclusion is unsupported by any analysis of the "character or quality" of the identified visual resources, or the siting of proposed project components "in visual proximity" to them. In referencing Section V(C) of the DEC Visual Policy, the final sentence in the section was left out, which states, "Staff must verify the potential significance of the impact using the qualities of the resource and the juxtaposition (using viewshed and or line-of-sight profiles) of the proposal as the guide for the determination."[7] In DEC's comments on the DEIS Draft Scoping Document, it is stated, "a complete analysis of visual impacts to specific affected resources is necessary to characterize the nature and extent of visual impacts to specific sensitive receptors." The DEIS
fails to provide the level of analysis necessary to "verify the potential significance of the impact using the qualities of the resource and the juxtaposition…of the proposal" to the resource in accordance with the DEC Visual Policy. This needs to be rectified in the SDEIS by the inclusion of site-specific analyses of individual visual resources to determine whether the visual character or quality of each resource may be impacted by the introduction of the proposed visual elements.

Additionally, as recommended in DEC's comments on the DEIS Draft Scoping Document, the list of affected visual resources should include state and national register eligible properties that may be sensitive visual receptors within the Area of Potential Effect (APE) identified by the survey for historic buildings (Public Scoping Document, October 8, 2007, page C-2).

DEIS Section 2.14.10, Mitigation Measures, includes a range of direct mitigation options as recommended in DEC's comments on the Draft Scoping Document, including some repositioning of turbines to reduce impacts to "specific high value resources" (DEIS page 110) and screening of some receptors through "strategic planting of vegetation" (DEIS page 111). On the basis of the impact determinations made in the site-specific impact analyses recommended above, options available for direct mitigation of impacts to specific visual resources should be presented in the SDEIS. This is consistent with DEC Visual Policy, referenced in DEC's comments on the Draft Scoping Document, which states, "if all mitigation options available from the menu are considered, applied where appropriate, and those applied are cost-effective, it can be considered that visual impacts have been minimized to the maximum extent practicable." However, the DEIS fails to include discussion of offsets as recommended in DEC's comments on the Draft Scoping Document, which state, "Where it is determined that direct mitigation is not practicable, specific options available for employing offsets should be identified and described, or if specific opportunities for employing offsets have not been identified, criteria that will be used to select offset-funded activities should be described." This discussion should be included the SDEIS.

Cultural Resources.

DEIS Section 2.29 includes a discussion of cultural resources in the project area and the Area of Potential Effect (APE) for visual impacts to historic resources. Because the potential visual impacts to historic resources are closely linked to the visual assessment referenced above, DEC's comments regarding identification of sensitive receptors, impact assessment and mitigation also apply here. In the Final Public Scoping Document, October 8, 2007, it states that cultural resources reviews would be conducted in accordance with Office of Parks, Recreation and Historic Preservation (OPRHP) guidelines and results summarized in the DEIS (Public Scoping Document, page 17). Appendix C of the Public Scoping Document includes Cultural Resources Assessment Methodology, and includes Phase 1A and 1B archeological surveys, and a survey for historic buildings (Public Scoping Document, pages C-1, C-2). The DEIS includes only the results of a Phase 1A archeology survey, and states that the results of the Phase 1B survey and historical structures and properties survey will be included in the FEIS. DEC recommends that these survey reports be included in the SDEIS, as well as results of consultation with OPRHP regarding assessment of impacts. As discussed above, the list of affected visual resources should include state and national register eligible properties that may be sensitive visual receptors.

Section 2.30.4, Mitigation Measures, describes options for mitigation of impacts to historical resources that are essentially the same as those described in the visual assessment section, including screening and relocation (DEIS page 163). As stated above in the visual assessment section, these direct mitigation options need to be more fully described in the SDEIS, together with a discussion regarding the application of offsets to address residual impacts, following a detailed analysis of impacts to specific resources.

Cumulative Impacts.

DEIS Section 6.0, Cumulative Impacts and Benefits, does not provide an adequate assessment of the potential cumulative impacts of several hundred turbines along the eastern shore of Lake Ontario and St. Lawrence River on birds and bats. The SDEIS should include a thorough analysis of the cumulative impacts of wind development around the eastern end of Lake Ontario for migrating, breeding and wintering birds; and bats. Proposed projects in the region include this 140-turbine Cape Vincent Wind Power Project, the 96-turbine St. Lawrence Wind Power Project, the 62-turbine Horse Creek-Clayton Wind Project, and the 77-turbine Galloo Island Project, all in Jefferson County; the Wolfe Island Wind Power Project, in Ontario, Canada; the 39-turbine Roaring Brook Wind Power Project, and the operational 195-turbine Maple Ridge Wind Power Project in Lewis County. Each of these projects has publicly available information on bird and bat movements, habitat use, and estimated mortality rates within their respective project areas that should be taken into consideration when evaluating the contribution of the Cape Vincent Wind Power Project to the total impact of wind energy development in the region.

DEIS Section 6.2, Impacts on Avian and Bat Species, discusses the concern that a semi-continuous swath of turbines in the region, resulting from construction of multiple wind power projects, may make it difficult for migrating birds to bypass any given project without the being
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at risk from collision with another wind project. The DEIS states that concern is "unlikely" given that "migrating birds fly at altitudes well above the top of a wind turbine blade." Nonetheless, the DEIS states that the project sponsor "will continue to gather data on this possible impact" (DEIS page 171). The conclusion that this concern is "unlikely" is not supported by existing data. DEC agrees that additional research is necessary to characterize this concern.

Additional issues.

DEC's comments on the Draft Scoping Document included recommendations that the DEIS include discussion of site restoration activities to be conducted at the conclusion of project construction, a discussion of an operations & maintenance plan describing environmental considerations to be included in the ongoing maintenance of the facility, and an environmental monitoring plan to ensure that project construction proceeds in accordance with regulatory requirements and mitigation measures identified in the environmental review. None of these issues are discussed in any detail in the DEIS, and should be more fully described in the SDEIS.

In conclusion, DEC appreciates the opportunity to comment on the DEIS for this project. We look forward to continuing to work with the Town of Cape Vincent Planning Board as Lead Agency throughout the remainder of the SEQR and permit review processes. If you have any questions or comments, please contact me at (518) 486-9955.

Sincerely,
/s/
Stephen Tomasik
Project Manager

att: Table 1: Publicly Available Radar Results for Proposed Wind Sites in New York
Map: Proposed and Existing Wind Farms in New York with Public Radar Data
Table 2: Publicly Available Raptor Migration Data for Proposed Wind Sites in NYS
Map: Proposed and Existing Wind Farms in New York with Public Raptor Migration Data

cc: J. Madden, BP Alternative Energy
T. Rienbeck, Supervisor, Town of Cape Vincent
M. Gebo, Hrabchak Gebo & Langone
L. Ambeau, NYSDEC Region 6
A. Davis, NYS DPS
M. Brower, Ag. & Mkts.
T. Sullivan, USFWS
J. Bonafide, OPRHP
M. Crawford, USACE
E. Boysen, Ontario MNR
DEC Review Team
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[1] 617: State Environmental Quality Review, Available: http://www.dec.ny.gov/regs/4490.html#18098 [29 Feb. 2008].

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[2] U.S. Department of the Interior, U.S. Geological Survey. Aquifer Basics. ONLINE. 2005. Available: http://capp.water.usgs.gov/aquiferBasics/carbrock.html [29 Feb. 2008].

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[3] New York State Department of Environmental Conservation. Freshwater Wetlands Regulation Guidelines on Compensatory Mitigation. ONLINE. 29 Oct. 1993. Available: http://www.dec.ny.gov/docs/wildlife_pdf/wetlmit.pdf [29 Feb. 2008].

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[4] New York State Department of Environmental Conservation. Guidelines for Conducting Bird and Bat Studies at Commercial Wind Energy Projects. ONLINE. Dec. 2007. Available: http://www.dec.ny.gov/docs/fish_marine_pdf/drwindguide1207.pdf [29 Feb. 2008].

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[5] Arnett, E.B., W.K. Brown, W.P. Erickson, J.K. Fieldler, B.L. Hamilton, T.H. Henry, A. Jain, G.D. Johnson, J. Kerns, R.R. Koford, C.P. Nicholson, T.J. O’Connell, M.D. Piorkowski, R.D. Tankersley, Jr. 2008. Patterns of bat fatalities at wind energy facilities in North America. The Journal of Wildlife Management 72(1):61-78.

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[6] New York Natural Heritage Program. 2008. Online Conservation Guide for Ammodramus henslowii. ONLINE. Available: http://www.acris.nynhp.org/guide.php?id=7106. [29 Feb. 2008].

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[7] New York State Department of Environmental Conservation. Assessing and Mitigating Visual Impacts. ONLINE. 31 Jul. 200. DEP-00-2. Available: http://www.dec.ny.gov/docs/permits_ej_operations_pdf/visual2000.pdf [29 Feb. 2008].

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