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HomeMy WebLinkAboutPSEG Opposition of Lead Agency Designation SY JZ,A 1A)NG SENIOR COUNSEL ENVIRONMENTAL 0 PSEG 1S . I Telephone: (516)222-3570 €1;� wee , tdtr°a cv°,,Ik f?r is%°r. Sy.Gruza@pseg.coin October 11, 2016 Via Pax: (518) 402-8541 and Overnight Mail OCT 12 2016 ID Hon. Basil Seggos, Commissioner New York State Department of Environmental Conservation SUPERVISOR'S OFFICE 625 Broadway TOM OF SOUTHOLD Albany, New York 11222 Rea Village of Greenport Notice of Adoption of Lead Agency Status and Lead Agency Dispute Referral 6 NYCRR 617.6(b)(5) Proposed Action: New 13 kV underground feeder cable from Southold 8J Substation through Village of Greenport to Shelter Island Dear Commissioner Seggos: PSEGLI, as authorized agent for the Long Island Power Authority("LIPA"), respectfully submits this opposition to the Village of Greenport's (the "Village") claim for designation as Lead Agency for the SEQRA review of the above-referenced Proposed Action. Additionally, this submission supports LIPA's proposed designation as Lead Agency. The Village submitted this dispute to NYSDEC by letter dated September 26, 20161, ("Village Dispute Letter" annexed hereto as Exhibit A), and on October 4, 2016 NYSDEC granted to LIPA an extension of its submission date to October 11, 2016. As detailed below, the Proposed Action involves the installation of approximately 16,000 linear feet of new 13 kV feeder cable, only 3650 feet of which (i.e., less than 25%) will be located within the Village. LIPA has determined that the Proposed Action is necessary in order 1 LIPA notified the Village of LIPA's intention to be Lead Agency by letter dated August 18, 2016. LIPA provided Lead Agency notifications to the Army Corps of Engineers("ACE"),New York State Department of Environmental Conservation("DEC"),New York State Office of General Services ("OGS") and New York State Department of State, Office of Planning and Development("DOS") by letters dated August 25, 2016. The Village disputed Lead Agency status by letter dated September 16, 2016. LIPA's Joint Permit application and Lead Agency notifications to ACE. DEC, OGS and DOS are annexed hereto as Exhibits B and C respectively. f .. 333 Earle Ovington Boulevard Uniondale, New York 11553 Page 2 to provide the Town of Shelter Island ("SI") with a sufficient, reliable, and environmentally responsible electricity supply. SI is located within the service area of LIPA.2 Six agencies need to issue SEQRA-triggering permits or approvals for the Proposed Action, including LIPA and the Village. The SEQRA review must evaluate the need for the Proposed Action, and potential impacts relating to, inter alfa, construction within the Town of Southold ("Southold"), the Village and SI, a waterway known as Shelter Island Sound North (the "Sound"), wetlands, and the coastal zones of both the Village and Shelter Island Heights (a hamlet in"SI") from the proposed installation by Horizontal Directional Drilling("HDD") of a new 13 kV feeder cable underneath the floor of the Sound. The Village admitted at a recent Board of Trustees meeting that it docs not have the experience, expertise or resources necessary to undertake the SEQRA review. Given: (1) the Village's concession that it is not capable of undertaking the SEQRA review; (2) that only a limited portion of the potential impacts are of primarily local Village significance; (3) that those local impacts are ordinary construction impacts that will occur for only three (3) weeks; and (4) LIPA has extensive experience, expertise and resources relevant for the SEQRA review process, the Village's claim for Lead Agency should be rejected and LIPA should be designated Lead Agency. Introduction The Village's claim to be Lead Agency rests solely on the purported local significance of potential traffic and noise impacts that will occur for only three off-season weeks during the installation of the 13 kV feeder cable underneath only two Village streets. The potential impacts 2 LIPA's"service area" is an area defined by statute as the counties of Suffolk and Nassau and that portion of the county of Queens that had been served by the Long Island Lighting Company. Public Authorities Laws §§ 1020-a and 1020-b. Page 3 from this limited duration of construction activity are no different than the impacts that ordinarily occur every time a utility has to partially open a street in order to repair or replace a pipe or cable. Indeed, equivalent construction traffic and noise impacts also will occur in Southold and SI. The evaluation of these ordinary impacts does not require any special knowledge or expertise, and cannot justify designating the Village as Lead Agency for the Proposed Action, especially given its conceded lack of expertise, experience and resources necessary to evaluate all of the other potential impacts. LIPA is a Public Authority, organized pursuant to New York State law, responsible for the safe, reliable and sufficient transmission and distribution of electricity throughout Long Island. See Public Authorities Laws §§ 1020-a, 1020-g. PSEGLI is the entity engaged as the "service provider"under contract with LIPA to provide management and operation services associated with LIPA's electric transmission and distribution system. Pursuant to LIPA's statutory mandate and responsibility, PSEGLI regularly undertakes on behalf of LIPA projects to: (1) increase the available capacity of its electricity transmission and distribution system in areas where existing capacity is insufficient for existing demand or will become insufficient for anticipated future demand; (2) upgrade the existing system with new technology and higher engineering standards in order to increase reliability and storm harden the system to avoid system failures like that which occurred as a result of Superstorm Sandy; and (3) promote renewable energy use and decrease emissions in order to achieve the goals of the 2015 New York State Energy Plan. In connection with such projects, PSEGLI, on behalf of LIPA, has prepared dozens of SEQRA evaluations, and LIPA has reviewed PSEGLI's evaluations and issued SEQRA determinations. As a result, both PSEGLI and LIPA have substantial expertise in preparing SEQRA review documents, identifying and evaluating potential impacts and proposed Page 4 mitigation, incorporating comments by involved agencies and related parties into the SEQRA evaluation process, and malting SEQRA determinations. In contrast, the Village has neither the experience, expertise nor resources to undertake the SEQRA review of the Proposed Action. The Village Board of Trustees admitted on the record at the August 25, 2016 Board of Trustees public meeting that if the Village becomes Lead Agency it will have to retain an outside environmental attorney and an environmental consultant to undertake the SEQRA review process because the Village does not have the experience or resources to do so itself. (A video of the August 25 Board meeting can be viewed through a link provided on the Village website.) The Board also acknowledged at the meeting its unfamiliarity with SEQRA procedures.3 Further, the Village's jurisdiction with respect to the Proposed Action is limited to only those portions of the 13 kV feeder cable installation located within the Village which compromise only 3650 feet or less than 25% of the total length of the installation. The Proposed Action The Proposed Action is the installation of a new 13 kV feeder cable from Southold to Sl in order to replace temporary diesel generators that have been staged on SI during the summer load season for each of the past two years because damage from Superstorm Sandy caused the then-existing feeder cable from Southold to Shelter Island to fail, and a 2013 attempt to replace that cable was unsuccessful. The cost of staging and maintaining the diesel generators each summer load season is substantial. The Proposed Action will restore the lost reliability connection of SI to the rest of the State's electricity supply system. 3 For example,the Village notes that LIPA has not yet obtained necessary permits and approvals from ACE,OGS and the Village, see Exhibit A at 5,even though the SEQRA determination is a prerequisite to the issuance of those permits and approvals. Page 5 The new feeder line will originate at LIPA's existing substation in the Town of Southold. The open trench method will be used to install the new feeder cable in the Right of Way ("ROW") on the South side of NYS Route 25 between Southold and the terminus of 5th Street adjacent to the Sound in the Village. Utilizing HDD, the next section of the cable between the Village and Shelter Island will be installed underneath the floor of the Sound. The cable will emerge from underneath the Sound at the paved Shelter Island North Ferry Parking Lot. Finally, the cable will be installed underground by the open trench method for 0.47 miles from the North Ferry Parking lot to Chase Street, where it will be connected to the existing overhead distribution system. The following SEQRA-relevant permits or approvals are required for the proposed action: • LIPA—as the project sponsor that determined the necessity for the Proposed Action and will fund and undertake it, LIPA is required to undertake a SEQRA review of its determination, including an evaluation of the potential impacts of the Proposed Action. • United States Army Corps of Engineers ("ACE") Dredge and Fill Permit—Nationwide Permit 12 authorizes this action because the cable will be installed underneath, but not in, the Sound. LIPA has submitted to ACE a jurisdiction/permit application to confirm the availability of Nationwide Permit 12 for the Proposed Action. • NYSDEC —Protection of Water Permit (Article 15). Similarly, because the cable will be installed underneath but not in the Sound, an Article 15 Permit may not be required. LIPA has submitted an Article 15 permit application to NYSDEC. If NYSDEC determines that an Article 15 permit is required, it is expected that DEC will issue an Article 15 permit for the Proposed Action because the installation and location of the Page 6 cable underneath the Sound do not have a potential for significant adverse impacts in or to the Sound. ® NYSDEC —Title Wetland Permit (Article 26). The entry and exit locations for the section of the proposed new cable that will be installed underneath the Sound are both at paved areas located in Wetlands Adjacent Areas. NYSDEC previously has issued to LIPA a General Wetlands Permit that authorizes the necessary work in Wetlands Adjacent Areas. See Exhibit D. • NYS Office of General Services (N.Y. Public Law §575)—easement to install cable underneath the Sound. LIPA has filed the necessary application with the Office of General Services. ® New York State Department of State, Division of Coastal Resource Mana eg ment(19 NYCRR Part 600)—Coastal Consistency Determination. ® Village of Greenport—an easement is required to install the cable under the Village streets because although the Village is within LIPA's Service Area, LIPA does not serve the ultimate consumers within the Village and does not derive rights to install electric plant within the Village from a franchise granted by the Village.4 LIPA and the Village have been negotiating the fair market compensation LIPA may pay to the Village for the easement.5 4 Although the Village's municipal electric department distributes electricity to ultimate consumers within the Village,the Village is dependent upon LIPA's transmission of electricity to the Village's municipal electric department through LIPA's transmission and distribution system. s Construction permits for the Proposed Project will be obtained from NYSDOT, Southold and SI. NYSDOT has submitted a notice in this proceeding that it is an"involved Agency" with respect to the Proposed Action. LIPA agrees to treat NYSDOT as an involved Agency even though NYSDOT's own regulations identify the guaranteeing of a permit for minor work activities within the State highway right-of-way as a Type II action that does not require a SEQRA review. 17 NYCRR 15.14(e)(4)(ii). Page 7 Evaluating Potential Impacts A. The Purpose of and Need for the Proposed Action. The Proposed Action is extremely important for providing a reliable, capacity sufficient and environmentally responsible electricity supply to the residents and businesses of Shelter Island. LIPA obviously has the expertise and experience to evaluate the need and logistics for the Proposed Action. In contrast, the Village has no relevant expertise, experience or knowledge at all to do so. The Village simply is in no position to evaluate LIPA's discharge of its statutory obligations. B. The Potential of the Proposed Action to Impact the Sound, Wetlands or Coastal Areas. Attachments to the EAF provide detailed analyses and evaluations of the various potential impacts. EAF Attachment C specifically identifies and evaluates the potential of the Proposed Action to impact ground water, flood plans, wetlands and wildlife. See Exhibit E. EAF Appendix B annexes the HDD Contingency Plan for mitigation of any impacts to the Sound cause by a frack out while installing the cable underneath the Sound floor. See Exhibit F. ACE and DEC are involved agencies to whom LIPA has submitted copies of the EAF. Based on their expertise and permitting authority, ACE and DEC will provide LIPA with comments on the draft SEQRA documents to the extent that either agency determines that the SEQRA documents should address additional impacts and/or provide additional analysis. As Lead Agency, LIPA will have the obligation to consider all comments from ACE and DEC (as well as comments from any other party), amend the SEQRA documents to reflect and address such comments, and take the comments into consideration in issuing its SEQRA determination. LIPA and PSEGLI have extensive experience with the installation of cables and poles in wetlands and Adjacent Areas, and have undertaken many SEQRA evaluations for such actions. They also have evaluated potential coastal zone impacts in many SEQRA processes. Moreover, Page 8 PSEGLI, on behalf of LIPA, maintains other underwater feeder cables that are part of LIPA's electricity transmission and distribution system. Given its experience, LIPA is more than qualified to evaluate potential impacts to the Sound, wetlands and coastal areas. In contrast, the Village has no such experience. Furthermore, these potential impacts to the Sound, wetlands and coastal areas are not primarily of local nature or significance, and do not weigh in favor of the Village being Lead Agency6. Co Local'Traffic and Noise Impacts. The Village erroneously states that the EAF documents do not consider"any of the impacts of the extensive construction for the land portion of the Project." See Exhibit A at 4-5. Attachment E to the EAF expressly discusses the construction impacts, specifically focusing on traffic and noise. See Exhibit G. The Village further alleges there will be "extensive excavation, trenching and filling." (emphasis added). See Exhibit A at 5. However, the Village's characterization of the construction work is more than a bit of an exaggeration. In fact, the Proposed Action will involve the installation of only about 3650 feet of feeder cable underneath Village streets. The drilling/trenching of a limited width of pavement at the side of a street will occur on only one (1) block on Front Street and six (6) blocks on Fifth Street. This work is expected to take no more than three (3) weeks to complete.7 See Google Map annexed hereto as Exhibit H. 6 The Village alleges in support of its Lead Agency claim that it has authority to regulate surface water within 1500 feet of the Village shoreline. Given that the feeder cable will be installed underneath the floor of the Sound, authority to regulate surface water activities is not a relevant consideration in designating Lead Agency for the Proposed Action. 7 With respect to construction impacts within the Village,LIPA has informed the Village that it intends to mitigate the potential for continuing effects of the 13 kV feeder cable construction on Village streets by repaving those local streets from curb-to-curb instead of just patching the narrow width of the street that had been trenched to install the cable. Page 9 At the terminus of 5th Street, HDD will occur for approximately 6-8 off-season weeks in order to install a portion of the 13 kV feeder cable underneath the Sound. The HDD location is adjacent only to a small marina and beach. There are no homes or businesses adjacent to the HDD. See Exhibit H. Thus, this HDD drilling is highly unlikely to result in any traffic impacts or noise impacts on the homes and shops that are located further up 5th Street. (A detailed analysis of the noise impacts will be included in the EAF.) Since it is anticipated that the HDD will not occur during the summer season May through mid-October, the HDD will not cause any significant adverse impacts to Village residents or visitors. Since the street trenching work for the Proposed Action is the same as the street trenching that occurs whenever utilities install or repair underground pipes and cables, the potential impacts from the construction work in the Village will not be any different than that which ordinarily occurs when a utility undertakes such work. The primary local impact of construction on traffic and noise will occur only within a limited area of seven(7) blocks and only for a limited period of three weeks or less. No particular expertise or knowledge is needed to evaluate these ordinary impacts. Indeed, PSEGLI and LIPA have substantial experience in evaluating such ordinary construction impacts. Accordingly, the potential for these ordinary construction impacts is not a reason to designate the Village to be Lead Agency instead of LIPA since most of the total potential impacts of the Proposed Action would occur outside of the Village, and the Village lacks necessary experience, expertise and resources to evaluate these non-Village impacts. Page 10 Conclusion LIPA is a State Authority, the project sponsor and an agency with substantial experience in and resources for evaluating the potential impacts of the Proposed Action, which will serve as an important regional need. As such, LIPA is the appropriate agency to be Lead Agency for the SEQRA review. The Village lacks the experience, expertise and resources necessary to be Lead Agency. The limited scope of construction impacts which will occur for only a three-week period and will be the same as the impacts which occurs in connection with ordinary utility street-opening repair or installation, do not provide a basis for elevating the Village to Lead Agency status, especially given the technical issues involved in evaluating the need for the Proposed Action and the Village's acknowledged lack of capacity to perfoi7n a competent SEQRA review. If the resource-challenged Village were to be Lead Agency, the SEQRA process would suffer inevitable delays, the burden of which would fall on residents and businesses of SI and LIPA's customers in general. (The original targeted starting work date already has fallen victim to this Lead Agency dispute). There is also a question whether the Village could conduct a fair and unbiased SEQRA process. The residents' denouncement of the Village Board and the Proposed Action at the August 25, 2016 Village of Board of Trustees meeting evidences the political pressures to which the Village Board of Trustees has become subject. This important regional project must not become hostage to local politics which pit one municipality against another. The best interests of the State and its residents must not be compromised by local hostilities. Page 11 Therefore, LIPA respectfully requests that DEC designate LIPA as Agency. Respectfully S mitted, SG:hs Sy Gruz Encls. cc: Joseph W Prokop,Esq. 267 Carleton Avenue Central Islip, New York 11751 (fax: 631.234.6205 and overnight mail) Carrie Meek Gallagher, Regional Director, NFSDEC Region I SUNY at Stony Brook 50 Circle Road Stony Brook, New York 11790-3409 (fax: 631.444.0349 and overnight mail) Ralph Hill, L.S, Public Lands Surveyor Examiner New York State Office of General Services Bureau of Land Management 26`h Floor, Corning Tower Albany, New York 12242 (fax: 518.474.0011 and overnight mail) Shaik A. Saad, Permit Section Manager Traffic & Safety Mobility Group New York State Department of Transportation 250 Veteran's Memorial Highway, Suite 6A-7 Hauppauge, New York 11788 (overnight mail) Long Island Railroad Public Affairs Department Jamaica Station 1975 Jamaica, New York 11435 (Attention: Ronnie, LIRR Legal Department fax: 718.558.8211 and overnight mail) Page 12 Hon. Scott A. Russell, Supervisor Town of Southold 53095 Route 25 P.O. Box 1179, Southold, New York 11971 (overnight mail) Hon. James Dougherty, Supervisor Town of Shelter Island 38 North Ferry Road, P.O. Box 970 Shelter Island, New York 11964 (overnight mail) Sara Lansdale, Director of Planning Suffolk County Division of Planning and Environment H. Lee Dennison Building, 11th Floor 100 Veteran's Memorial Highway, P.O. Box 6100 Hauppauge, New York 11788-0099 (overnight mail) U.S. Army Corps of Engineers U.S. Upstate Regulatory Field Office ATTN: CENANOPRU, Building 10 3rd Floor North 1 Buffington Street, Watervilet Arsenal Watervilet, New York 12189 (fax: 518.266.6366 and overnight mail) NYS Department of State, Coastal Resources 99 Washington Avenue Suite 1010 Albany, New York 12231 (fax: 518.474.6572 and overnight mail) Shelter Island Heights Property Owners Corporation 12 Summerfield Place Shelter Island Heights, New York 11965 (overnight mail)