SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF JEFFERSON

WIND POWER ETHICS GROUP,

Petitioner-Plaintiff, AFFIDAVIT OF
RICHARD EDSALL
- against -

PLANNING BOARD OF THE Index No. 10-2882

TOWN OF CAPE VINCENT, and RJI No. 22-10-0990
RICHARD EDSALL, TOM RIENBECK,
GEORGE MINGLE, ANDREW BINSLEY, and
KAREN BOURCY, in their capacities as
planning board members,

Respondents-Defendants, and

ST. LAWRENCE WINPOWER, LLC,

Respondent-Defendant.

State of New York

) ss:
County of Jefferson

RICHARD J. EDSALL being duly sworn, deposes and says:

1. I am the Chairman of Respondent Town of Cape Vincent Planning Board

("Planning Board"), and have served as the Planning Board's Chairman since 1999.

2. As Chairman, I am presiding over the Planning Board's review of the site plan

application submitted by St. Lawrence Windpower, LLC ("St. Lawrence") for a wind farm (the

"Project"), including the recently completed review pursuant to the State Environmental Quality

Review Act ("SEQRA").

 3. As such, I am fully familiar with the facts and circumstances surrounding the

above captioned proceeding.

4. I submit this affidavit in support of the Planning Board's Verified Answer and in

opposition to the Verified Petition by Wind Power Ethics Group ("WPEG" and/or "Petitioner"),

which seeks to set aside the Planning Board's Final Environmental Impact Statement ("FEIS")

and SEQRA findings statement on the ground that the Planning Board failed to comply with

certain procedural and substantive obligations under SEQRA.

5. As set forth below, and as demonstrated by the administrative record underlying

this proceeding, the Planning Board has fully satisfied SEQRA's procedural and substantive

mandates. Accordingly, I respectfully request that the Court dismiss Petitioners' Verified

Petition in its entirety.

Project Description

6. St. Lawrence filed its initial site plan application for the Project with the Town in

2006. As initially proposed, the Project consisted of a wind-powered electrical-generating

facility with up to 96 turbine locations and a total capacity of approximately 136 megawatts

(MW), to be located in the Towns of Cape Vincent and Lyme, Jefferson County.

7. All of the turbines, temporary construction laydown area(s), access roads,

underground interconnect lines, operations and maintenance building, meteorological towers, an

electrical substation and other components would be located in the Town of Cape Vincent;

whereas, most of the overhead electrical transmission line would be located in the Town of

Lyme and connected to the existing transmission grid substation located there.
 8. Based on the size range of potential units, the maximum blade-tip height was

estimated to be 425 feet and the rotor width (diameter) estimated to be 300 feet (per the 3.0 MW

turbine blades).

9. The Project also included the construction of approximately 29 miles of gravel

access roads, 44 miles of underground interconnect cables, an electrical substation, and an

operations and maintenance building. An approximately 9 mile long (34.5 kV to 115 kV)

overhead transmission line would be constructed to connect the Project with the existing

transmission grid and electrical substation in the Town of Lyme.

10. Once operational, the Project will become a significant source of renewable

energy to the New York power grid, facilitating compliance with the New York State Public

Service Commission Order 03-E-0188, issued on September 24, 2004, which created the New

York State Retail Renewable Portfolio Standard (RPS).

11. The purpose of the RPS is to increase the proportion of electricity from renewable

energy sources in New York State to 25 percent by the end of 2013.

12. The Project also supports several objectives identified in the 2002 State Energy

Plan, including the creation of economic growth, energy diversity, and a cleaner and healthier

environment.

13. The benefits of the proposed Project also include significant positive air quality

impacts. By eliminating pollutants and greenhouse gases during the production of electricity, the

Project will benefit ecological and water resources, as well as human health.

14. Specifically, the Project is estimated to result in annual reductions of

approximately 138 tons of nitrogen oxides, 391 tons of sulfur dioxide, and substantial quantities

of other pollutants including particulate matter, carbon monoxide, and volatile organic
compounds. In addition, the Project will offset approximately 92,697 tons of carbon dioxide

annually.

15. Finally, the construction and operation of the Project will generate certain

socioeconomic and environmental benefits for the Town and region.

16. During construction, it is anticipated that the Project would employ approximately

50 to 150 workers.

17. Local employment would benefit those in the construction trades, including

equipment operators, truck drivers, laborers, and electricians. Project construction would also

require workers with specialized skills, such as crane operators, turbine assemblers, specialized

excavators, and high voltage electrical workers.

18. These jobs will also contribute to the local economy through the purchases of

local goods and services.

19. Once operational, the Project will support the long-term economic viability of

agricultural operations in the Town, enabling our local farmers to augment their farm incomes by

realizing the full potential of the wind asset on their lands.

Prior Litigation Confirmed that the Project is a Utility

20. Upon receipt of the site plan application for the Project in 2006, the Town

classified the Project as a "utility" under the Town Zoning Law, a use permitted as-of-right in the

Town's Agricultural-Rural Zoning District subject to site plan review.

21. Petitioners appealed the classification of the Project as a "utility" to the Town's

Zoning Board of Appeals ("ZBA"). Petitioners' appeal was considered by the ZBA at no less

than three public meetings in January and February of 2007, including a public hearing on

January 29, 2007.

 22. Petitioner and St. Lawrence actively participated in the appeal, submitting oral

and written testimony to the ZBA, as did other members of the community. In addition to

challenging the Project's classification as a utility, Petitioner claimed that the Planning Board

was acting in violation of Article 18 of the General Municipal Law and the Town's Ethics Code

and therefore its decision to review the Project as a utility should be overturned. (See MT. of

Rienbeck).

23. On February 5, 2007, the ZBA affirmed the Planning Board's jurisdiction over

the Project as a "utility" under the Town's Zoning Law. By its decision, the ZBA also implicitly

rejected Petitioner's conflicts of interest claim. Petitioner then commenced an Article 78

proceeding before this Court challenging the ZBA determination. The ZBA determination was

upheld by Supreme Court (Wind Power Ethics Group and Sarah Boss v. Zoning Bd. of Appeals

of Town of Cape Vincent, et al., Index No. 07-0789 (Jefferson Co., August 24, 2007)) and

subsequently affirmed by the Appellate Division, Fourth Department. (Wind Power Ethics

Group et al. v. Zoning Bd. of Appeals of Town of Cape Vincent, et al., 60 A.D.3d 1282 (4 th

Dep't209).

The Planning Board's SEQRA Compliance

24. During the ZBA's review of Petitioner's appeal, and prior to the decisions of the

Supreme Court and Appellate Division, St. Lawrence submitted a Draft Environmental Impact

Statement ("DEIS") in support of the Project application to the Planning Board.

25. On January 24, 2007, the Planning Board accepted the DEIS as adequate for

public review in accordance with the SEQRA regulations, 6 N.Y.C.R.R. § 617.9.

26. The DEIS was distributed to an expansive list of involved and interested agencies,

including the U.S. Army Corps of Engineers, U.S. Fish & Wildlife Service, NYS Department of
Environmental Conservation, NYS Public Service Commission, NYS Department of

Transportation, NYS Department of State, NYS Department of Agriculture & Markets, NYS

Energy Research and Development Authority, NYS Office of Parks, Recreation and Historic

Preservation, Jefferson County Planning Board, Village of Cape Vincent, and the Town of Lyme

pursuant to 6 N.Y.C.R.R. § 617.12(b). (See R. at 1297-1301). 1

27. The DEIS was also posted online by St. Lawrence, and made available at multiple

public repositories including the Town of Cape Vincent Town Clerk's Office, Town of Lyme

Town Clerk's Office, Village of Cape Vincent Village Clerk's Office and Cape Vincent and

Lyme public libraries pursuant to 6 N.Y.C.R.R. § 617.12(b).

28. Notice of acceptance of the DEIS and an invitation to appear at a public hearing

and submit oral and written public comments on the DEIS was also published in the Watertown

Daily Times and online in the Environmental Notice Bulletin maintained by the NYS

Department of Environmental Conservation ("NYSDEC") pursuant to 6 N.Y.C.R.R. §

617.12(c).

29. The Planning Board held a public hearing on the DEIS on March 24, 2007, and

accepted further written comment on the DEIS from involved and interested agencies and the

public through June 15, 2007, far exceeding the minimum public comment requirements set forth

in the SEQRA regulations at 6 N.Y.C.R.R. § 617.9(a)(3).

30. Between June 2007 and March 2009, St. Lawrence reviewed and responded to

public and involved SEQRA agency comments, as well as initial Planning Board comments.

Significantly, in response to comments by the Planning Board, St. Lawrence proposed changes to

the Project, including a reduction of the Project footprint from 96 wind turbines to 53 turbines in

order to avoid various critical environmental resources and minimize potential environmental

Citations to the Record will be in the following format: (R. at ).

impacts, including Project noise, potential future avian and bat mortality, and visual and wetland

impacts, to name a few.

31. Based on this and other Project changes, the Planning Board directed St.

Lawrence to submit a Supplemental DEIS ("SDEIS") to the Planning Board for review and

comment pursuant to 6 N.Y.C.R.R. § 617.9(a)(6). The SDEIS was accepted as adequate for

public review by the Planning Board on March 25, 2009. (See R. at 87, 1302-3616).

32. As with the DEIS, the SDEIS was distributed to the various State and local

involved agencies (again including the Town of Lyme), posted online by St. Lawrence, and

made available at multiple public repositories including the Town of Cape Vincent Town Clerk's

Office, Town of Lyme Town Clerk's Office, Village of Cape Vincent Village Clerk's Office and

Cape Vincent and Lyme public libraries pursuant to 6 N.Y.C.R.R. § 617.12. (See R. at 3603-

3616). Notice of acceptance of the SDEIS and invitation to appear at a public hearing and

submit oral and written public comments on the SDEIS was also published in the Watertown

Daily Times and online in the Environmental Notice Bulletin.

33. As described in the Executive Summary of the SDEIS, in addition to a reduction

of the total number of proposed turbine locations, the Project was revised to minimize and avoid

certain potential environmental impacts including:

• Revised Wind Turbine Locations. Wind turbine locations were revised based
on wind resource assessment, engineering considerations, environmental
constraints, and setback requirements provided by the Cape Vincent Planning
Board.

• Revised Access Road Configuration. Access road desigi was modified to

accomn-iodate the construction and maintenance of the revised wind turbine
locations and the overhead electrical collection system. In addition, access roads
were modified to minimize or avoid potential impacts to wetlands and cultural
resources.
 • Additional Wetlands Delineation Data. Additional activities were undertaken to
expand on the assessment of wetlands based on the current Project layout. These
activities included further avoidance and minimization of impacts through
Project reduction, design and layout modifications, delineation and documentation
of existing wetlands resources, an assessment of wetlands functions and values,
calculation of proposed impacts and development of a wetland mitigation plan.

34. As with the Planning Board's review of the DEIS, the Board accepted public

comments in excess of SEQRA's minimum requirements; holding a public hearing on May 16,

2009 and accepting written comment through May 30, 2009.

35. The Planning Board and its engineering (The Bernier Carr Group and Cavanaugh,

Tocci Associates, Inc.) and legal (Whiteman, Osterman & Hanna, LLP) consultants then spent

the better part of a year reviewing the SDEIS and public and agency comments received on the

SDEIS, and preparing responses to the comments for the Final EIS ("FEIS").

36. St. Lawrence submitted a draft of the FEIS to the Planning Board which was

accepted as complete by the Planning Board on August 18, 2010.

37. The FEIS was then distributed to the various State and local involved agencies

(including the Town of Lyme), posted online by St. Lavvrence, and made available at multiple

public repositories including the Town of Cape Vincent Town Clerk's Office, Town of Lyme

Town Clerk's Office, Village of Cape Vincent Village Clerk's Office and Cape Vincent and

Lyme public libraries as required by the SEQRA regulations. (See R. at 5914-5918).

38. Notice of acceptance of the FEIS was also published in the Watertown Daily

Times and online in the Environmental Notice Bulletin as required by the SEQRA regulations.

39. On September 15, 2010, after distribution and publication of all appropriate

notices, and well after the ten (10) day "cooling off' period prescribed by SEQRA between

acceptance of an FEIS and the issuance of a statement of findings (see 6 N.Y.C.R.R. §

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF JEFFERSON

WIND POWER ETHICS GROUP,

Petitioner-Plaintiff, AFFIDAVIT OF
RICHARD EDSALL
- against -

PLANNING BOARD OF THE Index No. 10-2882

TOWN OF CAPE VINCENT, and RJI No. 22-10-0990
RICHARD EDSALL, TOM RIENBECK,
GEORGE MINGLE, ANDREW BINSLEY, and
KAREN BOURCY, in their capacities as
planning board members,

Respondents-Defendants, and

ST. LAWRENCE WINPOWER, LLC,

Respondent-Defendant.

State of New York

) ss:
County of Jefferson

RICHARD J. EDSALL being duly sworn, deposes and says:

1. I am the Chairman of Respondent Town of Cape Vincent Planning Board

("Planning Board"), and have served as the Planning Board's Chairman since 1999.

2. As Chairman, I am presiding over the Planning Board's review of the site plan

application submitted by St. Lawrence Windpower, LLC ("St. Lawrence") for a wind farm (the

"Project"), including the recently completed review pursuant to the State Environmental Quality

Review Act ("SEQRA").

 3. As such, I am fully familiar with the facts and circumstances surrounding the

above captioned proceeding.

4. I submit this affidavit in support of the Planning Board's Verified Answer and in

opposition to the Verified Petition by Wind Power Ethics Group ("WPEG" and/or "Petitioner"),

which seeks to set aside the Planning Board's Final Environmental Impact Statement ("FEIS")

and SEQRA findings statement on the ground that the Planning Board failed to comply with

certain procedural and substantive obligations under SEQRA.

5. As set forth below, and as demonstrated by the administrative record underlying

this proceeding, the Planning Board has fully satisfied SEQRA's procedural and substantive

mandates. Accordingly, I respectfully request that the Court dismiss Petitioners' Verified

Petition in its entirety.

Project Description

6. St. Lawrence filed its initial site plan application for the Project with the Town in

2006. As initially proposed, the Project consisted of a wind-powered electrical-generating

facility with up to 96 turbine locations and a total capacity of approximately 136 megawatts

(MW), to be located in the Towns of Cape Vincent and Lyme, Jefferson County.

7. All of the turbines, temporary construction laydown area(s), access roads,

underground interconnect lines, operations and maintenance building, meteorological towers, an

electrical substation and other components would be located in the Town of Cape Vincent;

whereas, most of the overhead electrical transmission line would be located in the Town of

Lyme and connected to the existing transmission grid substation located there.
 8. Based on the size range of potential units, the maximum blade-tip height was

estimated to be 425 feet and the rotor width (diameter) estimated to be 300 feet (per the 3.0 MW

turbine blades).

9. The Project also included the construction of approximately 29 miles of gravel

access roads, 44 miles of underground interconnect cables, an electrical substation, and an

operations and maintenance building. An approximately 9 mile long (34.5 kV to 115 kV)

overhead transmission line would be constructed to connect the Project with the existing

transmission grid and electrical substation in the Town of Lyme.

10. Once operational, the Project will become a significant source of renewable

energy to the New York power grid, facilitating compliance with the New York State Public

Service Commission Order 03-E-0188, issued on September 24, 2004, which created the New

York State Retail Renewable Portfolio Standard (RPS).

11. The purpose of the RPS is to increase the proportion of electricity from renewable

energy sources in New York State to 25 percent by the end of 2013.

12. The Project also supports several objectives identified in the 2002 State Energy

Plan, including the creation of economic growth, energy diversity, and a cleaner and healthier

environment.

13. The benefits of the proposed Project also include significant positive air quality

impacts. By eliminating pollutants and greenhouse gases during the production of electricity, the

Project will benefit ecological and water resources, as well as human health.

14. Specifically, the Project is estimated to result in annual reductions of

approximately 138 tons of nitrogen oxides, 391 tons of sulfur dioxide, and substantial quantities

of other pollutants including particulate matter, carbon monoxide, and volatile organic
compounds. In addition, the Project will offset approximately 92,697 tons of carbon dioxide

annually.

15. Finally, the construction and operation of the Project will generate certain

socioeconomic and environmental benefits for the Town and region.

16. During construction, it is anticipated that the Project would employ approximately

50 to 150 workers.

17. Local employment would benefit those in the construction trades, including

equipment operators, truck drivers, laborers, and electricians. Project construction would also

require workers with specialized skills, such as crane operators, turbine assemblers, specialized

excavators, and high voltage electrical workers.

18. These jobs will also contribute to the local economy through the purchases of

local goods and services.

19. Once operational, the Project will support the long-term economic viability of

agricultural operations in the Town, enabling our local farmers to augment their farm incomes by

realizing the full potential of the wind asset on their lands.

Prior Litigation Confirmed that the Project is a Utility

20. Upon receipt of the site plan application for the Project in 2006, the Town

classified the Project as a "utility" under the Town Zoning Law, a use permitted as-of-right in the

Town's Agricultural-Rural Zoning District subject to site plan review.

21. Petitioners appealed the classification of the Project as a "utility" to the Town's

Zoning Board of Appeals ("ZBA"). Petitioners' appeal was considered by the ZBA at no less

than three public meetings in January and February of 2007, including a public hearing on

January 29, 2007.

 22. Petitioner and St. Lawrence actively participated in the appeal, submitting oral

and written testimony to the ZBA, as did other members of the community. In addition to

challenging the Project's classification as a utility, Petitioner claimed that the Planning Board

was acting in violation of Article 18 of the General Municipal Law and the Town's Ethics Code

and therefore its decision to review the Project as a utility should be overturned. (See MT. of

Rienbeck).

23. On February 5, 2007, the ZBA affirmed the Planning Board's jurisdiction over

the Project as a "utility" under the Town's Zoning Law. By its decision, the ZBA also implicitly

rejected Petitioner's conflicts of interest claim. Petitioner then commenced an Article 78

proceeding before this Court challenging the ZBA determination. The ZBA determination was

upheld by Supreme Court (Wind Power Ethics Group and Sarah Boss v. Zoning Bd. of Appeals

of Town of Cape Vincent, et al., Index No. 07-0789 (Jefferson Co., August 24, 2007)) and

subsequently affirmed by the Appellate Division, Fourth Department. (Wind Power Ethics

Group et al. v. Zoning Bd. of Appeals of Town of Cape Vincent, et al., 60 A.D.3d 1282 (4 th

Dep't209).

The Planning Board's SEQRA Compliance

24. During the ZBA's review of Petitioner's appeal, and prior to the decisions of the

Supreme Court and Appellate Division, St. Lawrence submitted a Draft Environmental Impact

Statement ("DEIS") in support of the Project application to the Planning Board.

25. On January 24, 2007, the Planning Board accepted the DEIS as adequate for

public review in accordance with the SEQRA regulations, 6 N.Y.C.R.R. § 617.9.

26. The DEIS was distributed to an expansive list of involved and interested agencies,

including the U.S. Army Corps of Engineers, U.S. Fish & Wildlife Service, NYS Department of
Environmental Conservation, NYS Public Service Commission, NYS Department of

Transportation, NYS Department of State, NYS Department of Agriculture & Markets, NYS

Energy Research and Development Authority, NYS Office of Parks, Recreation and Historic

Preservation, Jefferson County Planning Board, Village of Cape Vincent, and the Town of Lyme

pursuant to 6 N.Y.C.R.R. § 617.12(b). (See R. at 1297-1301). 1

27. The DEIS was also posted online by St. Lawrence, and made available at multiple

public repositories including the Town of Cape Vincent Town Clerk's Office, Town of Lyme

Town Clerk's Office, Village of Cape Vincent Village Clerk's Office and Cape Vincent and

Lyme public libraries pursuant to 6 N.Y.C.R.R. § 617.12(b).

28. Notice of acceptance of the DEIS and an invitation to appear at a public hearing

and submit oral and written public comments on the DEIS was also published in the Watertown

Daily Times and online in the Environmental Notice Bulletin maintained by the NYS

Department of Environmental Conservation ("NYSDEC") pursuant to 6 N.Y.C.R.R. §

617.12(c).

29. The Planning Board held a public hearing on the DEIS on March 24, 2007, and

accepted further written comment on the DEIS from involved and interested agencies and the

public through June 15, 2007, far exceeding the minimum public comment requirements set forth

in the SEQRA regulations at 6 N.Y.C.R.R. § 617.9(a)(3).

30. Between June 2007 and March 2009, St. Lawrence reviewed and responded to

public and involved SEQRA agency comments, as well as initial Planning Board comments.

Significantly, in response to comments by the Planning Board, St. Lawrence proposed changes to

the Project, including a reduction of the Project footprint from 96 wind turbines to 53 turbines in

order to avoid various critical environmental resources and minimize potential environmental

Citations to the Record will be in the following format: (R. at ).

impacts, including Project noise, potential future avian and bat mortality, and visual and wetland

impacts, to name a few.

31. Based on this and other Project changes, the Planning Board directed St.

Lawrence to submit a Supplemental DEIS ("SDEIS") to the Planning Board for review and

comment pursuant to 6 N.Y.C.R.R. § 617.9(a)(6). The SDEIS was accepted as adequate for

public review by the Planning Board on March 25, 2009. (See R. at 87, 1302-3616).

32. As with the DEIS, the SDEIS was distributed to the various State and local

involved agencies (again including the Town of Lyme), posted online by St. Lawrence, and

made available at multiple public repositories including the Town of Cape Vincent Town Clerk's

Office, Town of Lyme Town Clerk's Office, Village of Cape Vincent Village Clerk's Office and

Cape Vincent and Lyme public libraries pursuant to 6 N.Y.C.R.R. § 617.12. (See R. at 3603-

3616). Notice of acceptance of the SDEIS and invitation to appear at a public hearing and

submit oral and written public comments on the SDEIS was also published in the Watertown

Daily Times and online in the Environmental Notice Bulletin.

33. As described in the Executive Summary of the SDEIS, in addition to a reduction

of the total number of proposed turbine locations, the Project was revised to minimize and avoid

certain potential environmental impacts including:

• Revised Wind Turbine Locations. Wind turbine locations were revised based
on wind resource assessment, engineering considerations, environmental
constraints, and setback requirements provided by the Cape Vincent Planning
Board.

• Revised Access Road Configuration. Access road desigi was modified to

accomn-iodate the construction and maintenance of the revised wind turbine
locations and the overhead electrical collection system. In addition, access roads
were modified to minimize or avoid potential impacts to wetlands and cultural
resources.
 • Additional Wetlands Delineation Data. Additional activities were undertaken to
expand on the assessment of wetlands based on the current Project layout. These
activities included further avoidance and minimization of impacts through
Project reduction, design and layout modifications, delineation and documentation
of existing wetlands resources, an assessment of wetlands functions and values,
calculation of proposed impacts and development of a wetland mitigation plan.

34. As with the Planning Board's review of the DEIS, the Board accepted public

comments in excess of SEQRA's minimum requirements; holding a public hearing on May 16,

2009 and accepting written comment through May 30, 2009.

35. The Planning Board and its engineering (The Bernier Carr Group and Cavanaugh,

Tocci Associates, Inc.) and legal (Whiteman, Osterman & Hanna, LLP) consultants then spent

the better part of a year reviewing the SDEIS and public and agency comments received on the

SDEIS, and preparing responses to the comments for the Final EIS ("FEIS").

36. St. Lawrence submitted a draft of the FEIS to the Planning Board which was

accepted as complete by the Planning Board on August 18, 2010.

37. The FEIS was then distributed to the various State and local involved agencies

(including the Town of Lyme), posted online by St. Lavvrence, and made available at multiple

public repositories including the Town of Cape Vincent Town Clerk's Office, Town of Lyme

Town Clerk's Office, Village of Cape Vincent Village Clerk's Office and Cape Vincent and

Lyme public libraries as required by the SEQRA regulations. (See R. at 5914-5918).

38. Notice of acceptance of the FEIS was also published in the Watertown Daily

Times and online in the Environmental Notice Bulletin as required by the SEQRA regulations.

39. On September 15, 2010, after distribution and publication of all appropriate

notices, and well after the ten (10) day "cooling off' period prescribed by SEQRA between

acceptance of an FEIS and the issuance of a statement of findings (see 6 N.Y.C.R.R. §

617.11(a)), the Planning Board issued a reasoned statement of SEQRA findings for the Project.

(See R. at 5919-6033).

40. As set forth in the statement of findings, the Planning Board (i) considered the

relevant environmental impacts, facts and conclusions disclosed in the FEIS; (ii) weighed and

balanced relevant environmental impacts with social, economic and other considerations; (iii)

provided a rationale for it's decision; (iv) certified that the requirements of SEQRA have been

met; and (v) certified that consistent with social, economic and other essential considerations

from among the reasonable alternatives available, the action is one that avoids or minimizes

adverse environmental impacts to the maximum extent practicable, and that the adverse

environmental impacts will be avoided or minimized to the maximum extent practicable by

incorporating as conditions to the decision those mitigative measures that were identified as

practicable.

41. Notwithstanding certain unavoidable environmental impacts, the Planning Board

described the various ways in which potential impacts had been minimized and mitigated to the

maximum extent practicable and concluded that, on balance, the social and economic impacts of

the Project outweigh the Project's potentially significant adverse environmental impacts.

42. It is the Planning Board's September 15, 2010 decision which Petitioner disagrees

with, and which has caused the Petitioner to collaterally attack the multiple year review process

by the Planning Board, as well as the thorough analysis which underlies the Planning Board's

decision in the form of the DEIS, SDEIS and FEIS.

43. However, the underlying administrative record, as well as the accompanying

Affidavit of Thomas K. Rienbeck and the Memorandum of Law, make it exceedingly clear that

the Planning Board's review has been methodical, thorough and reasoned.
 "Hard Look" at Noise Impacts
44. Petitioner has alleged that the Planning Board failed to take the requisite "hard

look" at potentially significant environmental impacts attributable to the Project, primarily based

on its interpretation of the Planning Board's conclusions regarding noise.

45. As demonstrated by the underlying administrative record, however, the Planning

Board has thoroughly analyzed the potential noise impacts which will be attributable to the

Project, considering information and analyses provided by all of the experts and the public,

including Petitioner.

46. Indeed, the Planning Board first directed St. Lavvrence to prepare a DEIS which

would include a sound impact analysis in 2006. Accordingly, St. Lawrence commissioned Tetra

Tech EC, Inc. ("Tetra Tech") to prepare its first sound impact analysis. (See R. at 260-266).

47. Tetra Tech deployed CadnaA modeling to model potential sound levels at the

nearest "off-site"2 residential receptors during operation of the Project. Tetra Tech concluded

that "[p]redicted sound levels from the Project turbines operating at maximum sound level

producing conditions are quite low at the surrounding residences (i.e. < 48.3 dB(A)) and would

not add significantly to existing ambient sound levels, nor create a significant noise impact."

48. The Tetra Tech analysis was reviewed by the Planning Board as well as its

engineering consultants, The Bernier Carr Group ("BCG") and BCG's expert noise impact

analysis sub-consultant, Cavanaugh Tocci Associates, Inc. ("CTA"). The Tetra Tech analysis

was also the subject of public and involved agency comment during the first round of public

hearings on the DEIS.

2The term "off-site" as used herein refers to residences or landowners who are not under lease with St. Lawrence
and, therefore, considered co-applicants with St. Lawrence by the Planning Board.
 49. The Planning Board thoroughly considered the public comments on potential

noise impacts, including substantive comments received regarding the Tetra Tech analysis.

50. A revised sound impact analysis was, thereafter, requested by the Planning Board

as part of the SDEIS. The revised sound impact analysis was prepared by Hessler Associates,

Inc. ("Hessler"), another firm specializing in acoustic analysis, and the preparer of numerous

sound impact analyses for wind farms within and outside New York State. (See R. at 2893-

2950, 4185-4231, 4672-4693).

51. Hessler's analysis entailed real-time monitoring of background sound levels in the

Project area during the summer and winter months in order to compare existing background

noise levels to expected Project noise.

52. Hessler's report concluded that:

• "...the maximum potential for an adverse impact from Project sound

occurs at a wind speed of 6 m/s... This analysis shows that the lowest, L90 wintertime
background sound level that is likely to exist under these conditions is 37 dB(A)."

• "...noise from Project operation would not exceed background conditions

by more than 6 dB(A)..."

• Only four (4) non-participating / off-site residences would experience total

noise levels at about 6 dB(A) above background conditions — modeled as falling within a 42
dB(A) contour.

• Cumulative noise from the Project and BP Wind Energy's planned wind
farm would be minor — a 2 dB(A) increase at a limited number of off-site residences.

53. Like Tetra Tech's analysis, Hessler's analysis was thoroughly reviewed and

critiqued by the Planning Board, BCG, CTA, involved agencies and the public. The Planning

Board, BCG and CTA likewise reviewed the involved agency and public comments received on

Hessler's analysis. (See R. at 4266-4273).

 54. Following the Planning Board's, BCG's and CTA's review, the Planning Board

felt it had adequate information to determine that the day-to-day Project noise should not impair

public health or the environment given the fact that only four off-site residences would

experience Project operation noise levels exceeding 42 dB(A), and the remaining off-site

residences would experience lower total noise levels.

55. The Planning Board's conclusion was informed, at least in part, by the NYSDEC

Program Policy "Assessing and Mitigating Noise Impacts," which provides that:

• Ambient noise levels below 55 dB(A) are "sufficient to protect public

health and welfare...;" and

• "A quiet seemingly serene setting such as rural farm land will be at the
lower end of the scale at about 45 dB(A)..."

56. Having received data sufficient to fully understand the potential significance of

noise impacts attributable to the Project, the Planning Board accepted the FEIS as complete in

August 2010 and issued SEQRA findings in September 2010. (See R. at 6006 - 6014).

57. The Planning Board's SEQRA findings concluded that no further mitigation

beyond that which had already been incorporated in the Project design would be necessary.

58. Specifically, the Planning Board stated with respect to construction phase noise

that while construction noise would be significant, it would be temporary in duration and impacts

would be mitigated as follows: (i) St. Lawrence would adhere to regular construction work hours

Mondays through Saturdays, and typically not working on Sundays or after dark; (ii) all

construction equipment will be maintained in good working condition in order to reduce general

noise emissions; (iii) when practical, heavy equipment will be shut down when not active, to

minimize idling noise; (iv) all internal combustion engines will be fitted with appropriate muffler
systems; and (v) adjacent landowners will be advised in advance of any significant noise-causing

activities and these will be scheduled to create the least disruption to residents.

59. The Planning Board stated with respect to operational noise, that noise impacts

had successfully been minimized through Project design (reduction of the total number of

turbines from 96 to 53, incorporation of setbacks recommended by the Planning Board, and

selection of a relatively quiet, commercially available wind turbine), no further mitigation of

operational noise impacts was necessary, and that the infrequent minor noise impacts which will

be attributable to the Project are outweighed by the positive social and economic Project

benefits.

The Planning Board Has Not Improperly

Disregarded Its Consultant or Deferred Its Review

60. In addition to alleging that the Planning Board failed to take the requisite "hard

look" at noise impacts attributable to the Project, Petitioner has alleged that the Planning Board

improperly disregarded its consultant's (CTA's) advice as well as public comments on the issue.

61. As set forth in the Verified Petition, Petitioner alleges that "the board ignored the

findings and opinions of its ovvn engineering and acoustic consultants regarding the noise that

would be expected from the project, and [Petitioner's] acoustic consultant, and instead the board

elected to rely on SLW's findings and opinions regarding noise impacts." (Verified Petition at ilt

2).

62. Petitioner misunderstands the issues and the Planning Board's SEQRA

obligations. Notwithstanding the fact that all of the consultants' data indicates that Project noise

will not impair public health or the environment, the Planning Board sought to understand the

potential significance of Project noise under "worst case" conditions and with respect to the most

sensitive of receptors.
 63. Accordingly, throughout 2009 and 2010, the Planning Board, through CTA,

engaged St. Lawrence and Hessler in discussion and provided numerous written comments on

the applicant's analysis set forth in the SDEIS. (See R. at 4266 — 4290).

64. The Planning Board's / CTA's comments were focused on the "worst case"

condition - low wind speeds (6 meters per second / the "cut-in" wind speed of the selected

turbines) during winter months when the masking noise of leaves, insects and higher wind

speeds do not exist.

65. The Planning Board's / CTA's critique of Hessler's analysis was ultimately

reduced over the course of the year to CTA's conclusion that Hessler's application of a

regression analysis to establish background sound levels as a comparative point for Project noise

might have underestimated actual potential future noise impacts at some receptor locations, since

the actual background sound levels monitored and reported by Hessler were scattered above and

below the 37 dB(A) 3 average relied upon by Hessler in his regression analysis.

66. To account for such a possibility, CTA recommended an evaluation using the 90 th

percentile of the wintertime L90 data, and in a July 15, 2010 letter, CTA set forth the results of

such an analysis. (See R. at 4269).

67. The conclusion CTA reached, was that at the "cut-in" wind speed of the selected

turbines, background sound levels could be as much as 5 decibels lower than levels used as a

comparison point by Hessler; meaning, in other words, that during this limited occurrence there

may be a greater change between background noise levels and Project noise levels than projected

by Hessler.

68. Nothing in any of the analyses or comments presented to the Planning Board

indicated, however, that Project operation noise would result in a condition which might impair

3 The term "dB(A)" refers to an "A" weighted decibel scale which expresses perceived loudness.
public health or the environment. Rather, both the Hessler and CTA analyses confirmed that

total noise would not regularly exceed the 45 dB(A) and 55 dB(A) levels referenced in the

NYSDEC Program Policy at off-site residences and other sensitive receptor locations.

69. Even Petitioner's consultant could not dispute the conclusion that noise levels

during Project operation would not significantly, adversely affect off-site receptors. Rather,

Petitioner's consultant was of the limited opinion that the background noise levels set forth in

Hessler's noise analysis may not be representative of background noise levels in all

circumstances throughout the Project area, since background noise varies depending upon the

pre-existence of other noise sources, such as the presence or absence of nearby agricultural

operations. As noted above, the Planning Board and its consultant clearly considered and

analyzed this issue.

70. Contrary to Petitioner's allegations, therefore, the Planning Board did not

disregard CTA's analysis or choose the conclusions of the applicant's consultant over its own

consultant. Nor did CTA and Petitioner's consultant agree on a position disregarded by the

Planning Board.

71. Rather, consistent with the mandates of SEQRA, the Planning Board considered

all of the information presented and reached its own independent and reasoned findings, even

with respect to a very limited situation (winter months at "cut-in" wind speeds).

72. As set forth in the Planning Board's statement of findings, although "background

sound levels at 5 to 6 m/s were determined to potentially be as much as 5.9 dB(A) lower than the

background levels set forth in Hessler's analysis, and 4.3 dB(A) lower at wind speeds of 6 to 7

m/s... in either case, total noise from Project operation, even during the wintertime condition at
the 6 m/s 'cut-in' speed, should generally remain below levels which would be considered

unacceptable for a rural, nighttime environment (45 dB(A))." (R. at 6011).

73. The Planning Board also acknowledged St. Lawrence's commitment to

implementation of a noise complaint resolution program, so as to ensure that the models are

accurate and provide St. Lawrence and the Town with an added mechanism to respond to

unanticipated complaints of impacts or actual impacts should they occur, including partial or full

cessation of operations if total Project noise exceeds 45 dB(A) as a regular occurrence. This is a

standard condition for projects like this one.

74. The complaint resolution program is, by no means, an attempt by the Planning

Board to defer analysis or mitigation of noise impacts to a future time. The Plarming Board

thoroughly understood the limited impacts that will occur as a result of the Project and has

captured the mitigation opportunities that existed through Project design.

"Hard Look" at Wildlife, Aesthetics and Community Character

75. The Verified Petition also challenges the Planning Board's hard look at economic,

wildlife, aesthetic and community character impacts.

76. As with the Planning Board's evaluation of potential noise impacts, each of these

other issues received significant attention from St. Lawrence and the Planning Board as part of

the preparation and review of the DEIS, SDEIS and FEIS, and were the subject of even further

elaboration in the Planning Board's statement of SEQRA findings.

77. Regarding economic and property value impacts, the Planning Board reviewed

and considered the studies contained in the DEIS, SDEIS and FEIS, as well as the studies

submitted by the public and concluded that "rallthough the Planning Board understands the

concerns of local residents about the possible impacts on property values that could result from
 •

the introduction of the Project into the local area, given the results of these studies, the Planning

Board finds that it is reasonable to conclude that the proposed Project will not adversely affect

local property values. Further, the Planning Board finds that the social and economic benefits of

the project to the local taxing jurisdictions, the Towns and to participating landowners outweigh

any potential adverse impact that the Project could have." (R. at 6017-6018).

78. Notably, although the "Town of Cape Vincent Wind Turbine Economic Impact

Committee" referenced in the Verified Petition is, upon information and belief, not an authorized

Town entity, its comments were made available to the Planning Board for review and

consideration despite the fact that the comments were provided to the Planning Board outside of

the public comment period and only in draft form.

79. Regarding wildlife, the Planning Board reviewed the studies contained in the

DEIS, SDEIS and FEIS, as well as the public and agency comments received regarding the

Project, and set forth its analysis of impacts and mitigation at pages 26 through 54 of the

statement of findings. (See R. at 5945-5973).

80. Finally, regarding aesthetics and community character, the Planning Board

reviewed the studies contained in the DEIS, SDEIS and FEIS, including visual simulations, as

well as the public and agency comments received regarding the Project, and set forth its analysis

of impacts and required mitigation at pages 73 through 84 of the statement of findings. (See R.

at 5992-6003).

81. The Planning Board respectfully asserts that the administrative record underlying

this proceeding more than sufficiently demonstrates a "hard look" at each of the potentially

significant environmental impacts identified by the Planning Board, Petitioner and others.
 Coordinated Review
,

82. Petitioner has alleged that the Planning Board failed to coordinate its SEQRA

review of the Project with the Town of Lyme Planning Board whom, Petitioner contends, has

approval jurisdiction with respect to the Project.

83. Petitioner is misinformed. An initial coordinated review notice for the Project

was provided to the Town of Lyme in 2006 as required by the SEQRA regulations, and Cape

Vincent has continued to treat Lyme as an involved agency since that time, sending copies of the

DEIS, SDEIS, FEIS and all required notices to the Town. (See R. at 1297-1301, 3603-3616,

5914-5918).

84. The Cape Vincent Planning Board was only advised in August 2010 by a Lyme

Planning Board member that the Planning Board might have jurisdiction over the Project.

Accordingly, the Cape Vincent Planning Board continued to direct copies of the SEQRA

materials and notices to the Town Clerk for the Town of Lyme, including notice of acceptance of

the FEIS.

85. The Town of Lyme, without any timely objection whatsoever by the Lyme Town

Board, Planning Board or ZBA, has continuously accepted receipt of the documents and notices

which were required to be provided to Lyme as an involved SEQRA agency.

86. Thus, the Cape Vincent Planning Board has fulfilled its coordinated review

obligation to the Town of Lyme.

The Planning Board Has Considered All Public Comments

87. Petitioner has alleged that the Planning Board failed to adequately consider all

public and involved agency comments on the Project, since Petitioner and a Lyme Planning
Board member or group of members submitted comments on the FEIS which Petitioner contends

the Planning Board did not consider when issuing its SEQRA findings.

88. The SEQRA regulations do not require or provide for collection of, or response to

any comments on the FEIS.

89. Nevertheless, the written comments were available to the Planning Board

members prior to the issuance of SEQRA findings, and although the comments are not expressly

reflected in the Planning Board's statement of findings, they were considered and did not warrant

any further response.

Cumulative Impacts

90. Petitioner has alleged that the Planning Board failed to consider the potential

cumulative impacts which might result from contemporaneous construction or operation of the

St. Lawrence Project, BP Wind Energy Project in the Towns of Cape Vincent and Lyme, and

projects in the nearby Towns of Clayton and Orleans, as well as on Wolfe Island (Canada).

91. Section 4.0 of the SDEIS thoroughly analyzed the potential cumulative impacts of

each of these projects. (See R. at 1542-1561).

92. The analysis entailed, among other things: (i) quantification of potential

cumulative wetland impacts; (ii) cumulative wildlife and wildlife habitat impact estimates,

including cumulative estimated bird and bat fatalities; (iii) a description of the low potential for

overlapping construction periods and transportation routes associated with the multiple projects;

(iv) a description of future land use and agricultural land impacts; and (v) descriptions of other

potential cumulative impacts, including visual, air quality, noise, and socioeconomic effects of

the multiple projects.

 '

93. None of these potential cumulative impacts were determined to be significant by

the Planning Board. For example:

• Wetland impacts attributable to each of the projects will be offset through

required mitigation for each project;

• Cumulative bird and bat kill estimates were determined to not be

statistically significant to the vitality of any listed threatened or endangered species;

• It is not anticipated that construction periods will overlap, and even if they
do, overlapping transportation routes are not anticipated to result in major traffic conflicts;

• Land use and agricultural land impacts are not expected to be

cumulatively significant since each project would be in compliance with local zoning controls,
and constructed at least in New York State following NYS Department of Agriculture and
Markets guidelines for wind farm development;

• Cumulative visual impacts will result, but it is the foreground view of the
nearest turbines which generally results in a significant change to the aesthetic of any particular
vantage point. Thus, the addition of distant views of additional turbines to any particular
impacted viewshed should not result in a significant cumulative visual impact;

• The BP Wind Energy Project will increase total noise at various

residential receptors by 1 to 2 dB(A), but the change is not cumulatively significant since a
change in total noise is generally imperceptible below 3 dB(A). The same minor cumulative
noise increase is expected with respect to the overlapping impacted areas of the other projects
referenced.

94. In sum, Petitioner's claims regarding cumulative impacts are without merit.

Conclusion

95. It is clear that the Planning Board undertook a long, thorough and

comprehensive review of the Project and all of the materials presented by the applicant, the

public and other agencies in full compliance with SEQRA. The Verified Petition has identified

no legitimate basis for overturning that effort and the findings that came from it.
 For the reasons set forth above, the Verified Petition should be dismissed and the

Planning Board's September 15, 2010 acceptance of a statement of SEQRA findings for the St.

Lawrence Project should be affirmed.

Sworn to on this 8th

day of December 2010

ek
NOTARY PUBLIC

DIANE E. COLLETTE
Notary Public, State of New York
No. 01C06208134
Qualified in Jefferson County /3
Commission Expires June 22,