HomeMy WebLinkAboutWinergy Power SC Dept of Planning letter 07/10/07
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COUNTY OF SUFFOLK
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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
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-Letter to Mr. Richard L. Tomer
U.S. Army Corps of Engineers
July 10, 2007
Page 3
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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
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Page 1
McKinney's EeL ~ 13-0302
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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
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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.
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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
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D Winergy Power LLC Site
D 1000 ft Shoreline Buffer
~ Shellfish Aquaculture Planning Area
Proposed Wind Turbines