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HomeMy WebLinkAboutWinergy Power SC Dept of Planning letter 07/10/07 > . , . . COUNTY OF SUFFOLK ~ STEVE LEVY SUFFOLK COUNTY EXECUTIVE DEPARTMENT OF PLANNING THOMAS A.ISLES, A.I.C.P. DIRECTOR OF PLANNING July 10,2007 Mr. Richard L. Tomer Chief, Regulatory Branch U.S. Army Corps of Engineers New York District Jacob K. Javits Federal Building New York, N.Y. 10278-0090 RE: Public Notice Number: NAN-2005-00367- WMI Issue date: June 12,2007 Expiration date: July 12, 2007 Application of Winergy Power lLC to Install a Wind Energy Generating Facility and Submarine Electric Cables, in Gardiner's Bay, Long Island Sound, New York. Dear Mr. Tomer: These comments are submitted on behalf of the County of Suff<;>lk, New York ("County"). The County takes no position on the merits of the proposal at this time because insufficient information is available to evaluate the application. However, the County's preliminary review indicates the following concerns: 1. Pursuant to N.Y. Environmental Conservation Law ~13-0302 (copy attached), the County owns the land underneath the water of Gardiner's and Peconic Bays, in the County of Suffolk, with some exceptions. N.Y. Environmental Conservation Law ~ 13-0302(1) provides that: Underwater lands ceded to County of Suffolk. All the right, title and interest in which the people of the state of New York have in and to the lands under water of Gardiner's and Peconic Bays in the County of Suffolk, except underwater lands within one thousand feet of the high water mark is hereby ceded to such county, for the purposes of shellfish cultivation, to be managed and controlled by such county, provided that such lands shall revert to the state when they shall cease to be used for shellfish cultivation. For the LOCATION H. LEE DENNISON BLDG. - 4TH FLOOR 100 VETERANS MEMORIAL HIGHWAY MAILING ADDRESS P.O. BOX 6100 HAUPPAUGE, NY 11788-0099 (631) 853.5190 TELECOPIER (631) 853-4044 Letter to Mr. Richard 1. Tomer U.S. Army Corps of Engineers July 10, 2007 Page 2 purposes of this section, the term "Gardiner's and Peconic Bays" shall mean the waters of Gardiner's and Peconic Bays and the tributaries thereof between the westerly shore of Great Peconic Bay and an easterly line running from the most easterly point of Plum Island to Goff Point at the entrance of Nape ague Harbor. The proposed Winergy project would utilize bay bottoms owned by the County and affect use of the lands and water thereon for shellfish cultivation. The attached map identifies the shellfish aquaculture planning area within which Suffolk County has ownership and jurisdiction interests. Superimposed on this map is the location of the Winergy Power LLC site and its proposed wind turbines, whose coordinate locations were obtained from documentation provided by the above- referenced U.S. Army Corps of Engineers Public Notice. It is apparent that the location of this proposed activity falls well within the area owned by Suffolk County for shellfish cultivation purposes. No action should be taken on the project without the express written consent of the County, as the owner. 2. Suffolk County has been authorized by the State of New York to develop and implement a shellfish aquaculture lease program for the underwater lands in Peconic and Gardiner's Bays pursuant to N.Y. Environmental Conservation Law ~ 13-0302. This shellfish aquaculture planning area is to be managed and controlled by the County of Suffolk. Under Suffolk County Capital Project 7180.110, the Suffolk County Department of Planning is developing a shellfish aquaculture lease program in Peconic and Gardiners Bays. The shellfish aquaculture lease program will, in part, identify cultivation zones inside the planning area within which shellfish aquaculture can take place on leases issued by the County. This area is already subject to many multiple use marine resource conflicts, which must be resolved in an equitable fashion in order to proceed with the implementation of the shellfish aquaculture leasing program. The proposed Winergy lLC project must be evaluated in conjunction with the conflicts that already exist. 3. County of Suffolk, as an owner, is an involved, decision-making agency pursuant to the State Environmental Quality Review Act ("SEQRA"), N.Y. Environmental Conservation Law Article 8.6 NYCRR ~ 617.2. Several New York State departments are also involved agencies. The National Environmental Policy Act ("NEP A") mandates that federal agencies cooperate with State and local agencies to the full extent possible, to reduce duplication between NEPA and State and local requirements, unless barred by other law (40 C.F.R. ~ 1506.2). Accordingly, the Federal and State environmental review procedures should be coordinated to lessen duplication and delay. The County requests that a public hearing be held to collect information necessary to consider this application. The County as an owner and an involved, decision-making agency, requests a full copy of the application for this project and, all other documents generated as a result of the NEP A process. LOCATION H. LEE DENNISON BLDG. . 4TH FLOOR l00VElERANS MEMORIAL HIGHWAY MAlLING ADDRESS P.O. BOX 6100 HAUPPAUGE, NY 1 1788-0099 (631) 863-6190 TELECOPIER (631) 863-4044 - -Letter to Mr. Richard L. Tomer U.S. Army Corps of Engineers July 10, 2007 Page 3 .' The County reserves the right to submit further comments concerning any factors relevant to the proposal, including, but not limited to, conservation, economics, aesthetics, vistas, general environmental concerns, wetlands, fish, shellfish, birds and other wildlife values, endangered species, land use, navigation, shoreline erosion and accretion, recreation, water quality, energy needs, safety, food production, historic sites, considerations of property ownership, consideration of the County's ownership rights under N.Y. Environmental Conservation Law ~13-0302, potential effects of the Winergy project on the County's shellfish aquaculture leasing program (presently being developed), potential effects of the Winergy project on other bay users, security concerns, and in general, the needs and welfare of the people. A Isles, A.IC.P. r of Planning T AI:bd Ene. cc: Rebecca Madlin, Coastal Coordinator New York State Department of State 41 State Street, 8th floor Albany New York 12231 cc: John A. Wieland, Deputy Regional Permit Administrator Division of Environmental Permits, Region 1 New York State Department of Environmental Conservation 50 Circle Road State University of New York at Stony Brook StonyBrook,N.Y 11790-3409 LOCATION H. LEE DENNISON BLDG. . 4TH flOOR 100 VETERANS MEMORIAL HIGHWAY MAIUNG ADDRESS P. O. BOX 6100 HAUI'PAUGE. NY 1178Il-0099 (631) 853-5190 TELECOPIER (631) 853-4044 --0-- --. ~ Page 1 McKinney's EeL ~ 13-0302 ~ Effective: September 14, 2004 MCKINNEY'S CONSOLIDA TED LAWS OF NEW YORK ANNOTATED ENVIRONMENTAL CONSERVATION LAW CHAPTER 43-B OF THE CONSOLIDATED LAWS ARTICLE 13-MARINE AND COASTAL RESOURCES TITLE 3..MARJNE FISHERIES "Ii 13-0302. Lands underwater of Gardiner's and Peconic bays 1. Underwater lands ceded to county of Suffolk. All the right, title and interest in which the people of the state of New York have in and to the lands under water of Gardiner's and Peconic bays in the county of Suffolk, except underwater lands within one thousand feet of the high water mark is hereby ceded to such county, for the pmposes of shellfish cultivation, to be managed and controlled by such county, provided that such lands shall revert to the state when they sball cease to be used for shellfish cultivation. For the pmposes of this section, the term "Gardiner's and Peconlc bays" shall mean the waters of Gardiner's and Peconic bays and the tnbutaries thereof between the westerly shore of Great Peconic bay and an easterly line running from the most easterly point of Plum island to Goffpoint at the entrance of Nape ague harbor. 2. Ratification. The grant of lands under the waters of Gardiner's and Peconic bays, by the commissioners of shell fisheries, in accordance with the provisions of chapter 385 of the laws of 1884, as amended, subsequently held and used by the grantees, heirs, successors, and assigns on which all taxes and assessments have been paid, are hereby ratified and confirmed. Any underwater lands in Gardiner's and Peconic Bays previously granted that revert or escheat to the state or are subject to tax deed by the county of Suffolk shall be available to the county for leasing pursuant to this section. All other lands under such waters, which pursuant to such chapters, bave escheated or reverted to the state, are hereby ceded to Suffolk county for the purposes of the cultivation of shellfISh, subject to existing valid grants and easements; provided however, that nothing in this section shall interfere with the right of the commissioner of general services to grant lands and easements under water to owners of adjacent uplands, pursuant to the provisions of the public lands law, or of the legislature to make such grants without regard to upland ownership, and to grant franchises to utilities, municipalities and governmental; educational, or scientific bodies for cables, outfalls, ecological studies, and experimentation with controlled marine life. 3. Leases. Suffolk county may lease lands under water ceded to it by the state for the purpose of shellfish cultivation. Provided if no such leases have been executed by December thirty-fnst, two thousand ten, such authority to lease pwsuant to this section shall tenninate. a. Leases may be issued only within areas designated as shellfish cultivation zones on a map or maps to be prepared and approved by the county of Suffolk. b. No 'lease shall be granted except upon written application on forms furnished by the county of Suffolk, and properly executed and signed by the applicant. c. Before a lease is approved, notice shall be provided for at least two months by posting such notice at the bureau of marine resources in the department, the office of the county clerk, and the office of the town clerk in which all or any part of the lands to be leased are located. Such notice shall also be published in the official newspaper of the county. The notice shall include the name of the lessee, the boundaries of the lease, and the area of the lease. A <02007 ThomsonlWest. No Claim to Ori!!. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Spli... 07/10/2007 J..ac""'J V.I...., Page 2 McKinney's EeL ~ 13-0302 copy of the proposed lease shall be available for public inspection and copying in the office of the county clerk. 4. Establishment of shellfish cultivation zones. Before leasing or using the lands hereby ceded to it, the county of Suffolk shall cause an accurate survey to be made of such lands, and a map or maps to be prepared therefrom. Such map or maps shall establish shellfish cultivation zones within Gardiner's and Peconic bays. Such map or maps shall be approved by local law. After such map or maps have been adopted, the county shall have the authority to issue leases for shellfish cultivation within the shellfish cultivation zones, as provided herein. Such map or maps shan he updated by the county of Suffolk every five years. a. Underwater lands within one thousand feet of the high water mark shall not be included in a shellfish cultivation zone. b. Underwater lands where bay scallops are produced regularly and harvested on a commercial basis shan not be included in a shellfish cultivation zone. c. Underwater lands where there is an indicated presence of shellfish in sufficient quantity and quality and so located as to support significant hand raking and/or tonging harvesting shall not be included in a shellfish cultivation zone. d. Underwater lands where the leasing will result in a significant reduction of established commercial fmfish or crustacean fisheries shall not be included in a shellfish cultivation zone. 5. Regnlations. The county shall, by local law, before leasing any such underwater lands, adopt regulations governing: a. applications for leases; b. notices to be given; c. the form and terms oflesses; d standards for the approval or denial ofleases; e. administration of leases; f. the transfer or renewal of leases; g. marking grounds and testiog; h. fees; i. recording oflcases; j. bonds; and k. such other matters as are appropriate to the leasing program. 6. Department authority. Notwithstanding any of the provisions of this section: a. any person engaging in the cultivation or harvestiog of shellfish in a shellfish cultivation zone pursuant to this section shan obtain a permit in accordance with section 13-0316 of this title; and Ci 2007 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Spli... 07/10/2007 "'-0" ........ Page 3 McKinney's EeL ~ 13-0302 b. the depar1ment shall regulate and control the use of certain types of vessels and equipment for harvesting shellfish, requirements for reseeding, the right to enter upon such leased lands for reseeding or making shellfish pOpulation surveys, and enforce all other applicable state laws relating to said underwater lands. 7. Duties of the county clerk. Leases issued pursuant to this section shall be recorded in the office of the county clerk in the manner and form to be determined by local law as provided in subdivision five of this section. 8. Summary proceedings. Upon the failure of a lessee to pay the rental on any date due under the terms of the lease or upon revocation as provided for by local law pursuant to subdivision five of this section, the county may, after written notice to the lessee declare the lease cancelled as of the date set forth in such notice, and rnay inunediately thereafter evict the lessee from such lands. The provisions of article seven of the real property actions and proceedings law shall apply and govern the procedure in such case. 9. Disposition of fees and rents. All fees and rents received shall be deposited into the general fund of the county. However, in the alternative, nothing shall prohibit the county of Suffolk, by local law, from establishing a special fund for the promotion of aquaculture where such fees and rents shall be deposited. <Laws 1972, Chapter 664> Current through L.2007, chapters I to 79. Copr C 2007 ThomsonlWest END OF DOCUMENT @ 2007 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works. http://web2.westlaw.comlprint/printstream.aspx?prft=HTMLE&destination=atp&sv=Spli... 07/10/2007 o 2,000 Feet ~ D Winergy Power LLC Site D 1000 ft Shoreline Buffer ~ Shellfish Aquaculture Planning Area Proposed Wind Turbines