20151221-5343 FERC PDF (Unofficial) 12/21/2015 4:14:37 PM

December 21, 2015

Secretary Kimberly D. Bose

Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426

Re: FERC Docket No. CP16-17: New York State Department of Environmental
Conservation Comments on the Proposed Valley Lateral Project (“Project”)

Dear Secretary Bose:

The New York State Department of Environmental Conservation (“Department”),

respectfully submits the following comments in response to the Notice of Application
issued by the Federal Energy Regulatory Commission (“FERC”) on November 30, 2015.
These comments are, in part, intended to supplement the environmental reporting
requirements found at 18 C.F.R. § 380.12 and are to be considered in conjunction with
all future comments of the Department, including, but not limited to, comments in relation
to FERC’s preparation and issuance of a final environmental impact statement. The
comments below speak from the context of New York State permitting, its requirements
and provisions, in order that the record for analysis and decision making under the
National Environmental Policy Review Act be thorough and complete.

Project Description

The Project is proposed by Millennium Pipeline Company, LLC (“Applicant”). The

Project is located in the Towns of Wawayanda and Minisink, Orange County, New York
and more fully described in the Abbreviated Application for a Certificate of Public
Convenience and Necessity (“Application”), dated and filed with FERC on November 13,
2015. Briefly, the Applicant proposes to construct a new 7.8 mile 16-inch diameter natural
gas pipeline that will extend from the Applicant’s existing main line pipeline north to the
new 650 megawatt gas-powered CPV Valley Energy Center being constructed by CPV
Valley, LLC in the Town of Wawayanda.

NYSDEC Review and Approvals

In accordance with Section 401 of the Clean Water Act, applicants seeking a
federal license or permit for activities that may result in a discharge to navigable waters
must obtain a Water Quality Certification (“WQC”) from the Department indicating that the
proposed activity will comply with State water quality standards. Federally-delegated or
authorized permits, if applicable, and a State Pollution Discharge Elimination System
(“SPDES”) Stormwater Permit for Construction Activities, must also be approved and
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granted by the Department. The Applicants will also be expected to apply for applicable
State law permits as relevant to the resources impacted by the project proposal and
demonstrate compliance with applicable State water quality standards. Along with the
permit applications, the Department also intends to rely upon the federal environmental
review prepared pursuant to the National Environmental Policy Act to determine if the
Project will comply with the applicable New York State standards.

Alternatives

The Department supports the development of viable pipeline route alternatives

which meet a project’s stated objectives and result in the least environmental impacts. In
general, the Department’s preference is for a new pipeline to be co-located along an
existing linear corridor (i.e, road, utility or railroad), to minimize habitat fragmentation and
direct impacts to wetlands and waterbodies.

With respect to the Project, the Department believes that the co-location
alternatives proposed by the Applicant (Alternate Route A and Interstate Highway 84
Alternative) have not been fully considered. The Applicant has disregarded the co-
location alternatives as being viable since they are not considered “environmentally or
economically preferable to the Preferred Route” (as defined in the Application). From the
Department’s perspective, this conclusion appears to have been reached prematurely,
without conducting a thorough analysis of practicable alternatives pursuant the Standards
for Issuance of Permits (compatibility and weighing standards) outlined in the
Department’s regulations at 6NYCRR Part 663.5(e) (Freshwater Wetlands).

Installation of a new utility line within regulated Freshwater Wetlands are

considered an “incompatible” P(X) activity (663.4(d) Item 37). 1 If a proposed activity is
identified as “incompatible” then the activity must meet each of the weighing standards
identified in Part 663.5(e)(2) for the classification of the wetland that would be affected by
the proposed activity, as follows:

• Freshwater Wetlands MD-23 and MD-29 are Class II wetlands. Class II

wetlands provide important wetland benefits, the loss of which are acceptable
only in very limited circumstances. A permit shall be issued only if it is
determined that the proposed activity satisfies a pressing economic or social
need that clearly outweighs the loss of or detriment to the benefits of the Class
II wetland.

• Freshwater Wetlands MD-26 and MD-28 are Class III wetlands. Class III
wetlands supply wetland benefits, the loss of which is acceptable only after the
exercise of caution and discernment. A permit shall be issued only if it is
determined that the proposed activity satisfies an economic or social need that
outweighs the loss of or detriment to the benefits of the Class III wetland.

1 This provision applies to all freshwater wetlands that are not regulated by Article VII of the New York
State Public Service Law.
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In order to meet the weighing standards identified in Part 663.5(e)(2) the proposed
activity must be compatible with public health and welfare, be the only practicable
alternative that could accomplish the applicant’s objectives and have no practicable
alternative on a site that is not a freshwater wetland or adjacent area. Further, the
proposed activity must minimize degradation to, or loss of, any part of the wetland or its
adjacent area and must minimize any adverse impacts on the functions and benefits that
the wetland provides.

According to 663.5(f)(2), a proposed activity is the only practicable alternative if no

other is physically or economically feasible. This does not, however, mean that the most
profitable or least costly alternative is the only feasible one nor that the least profitable or
more costly alternative is the only feasible one.

The burden of showing that the proposed activity will comply with the policies and
provisions of the Freshwater Wetlands Act and Part 663 rests entirely on the applicant.
In order to demonstrate that the co-location alternatives are not practicable alternatives,
the applicant needs to consider not only the direct impacts to wetlands and waterbodies
but the multiple indirect impacts resulting from the fragmentation of undisturbed large
wetland complexes.

Based on the foregoing, for purposes of developing alternative pipeline locations

within the Application, the Department does not believe that the Application sufficiently
demonstrates that the Preferred Route is the only practicable alternative.

Water Resources, Fisheries and Wetlands

Several of the delineated wetlands within the project corridor would be eligible for
protection under the New York Freshwater Wetlands Act (Article 24) since they are either
part of a wetland that is 12.4 acres or larger, or were determined in by Department staff
to be connected to an existing, identified freshwater wetland (“FFW”). It does not appear
that the NYSDEC Regulated FWW ID has been added to Table 2A-2 as requested in our
letter dated October 13, 2015 for FERC Docket No. PF15-23. Please add to the record
the NYSDEC Regulated FWW ID to Table 2A-2 for each wetland identified in the table
below:
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Delineated Wetland ID NYSDEC Regulated FWW ID

W-G Eligible
W-H Eligible
W-L Eligible
W-AP MD-29 (Class 2)
W-AQ MD-29 (Class 2)
W-AR MD-29 (Class 2)
W-AS MD-29 (Class 2)
W-AV MD-29 (Class 2)
W-AM MD-29 (Class 2)
W-AL MD-29 (Class 2)
W-AI MD-29 (Class 2)
W-V MD-26 (Class 3)
W-Y MD-26 (Class 3)
W-AG MD-23 (Class 2)
W-BA MD-28 (Class 3)

Furthermore, the Department requests that impacts to regulated FWW Adjacent

Areas (AA) be quantified and mitigation measures proposed by the Applicant. Mitigation
in the form of the application of native seed mix has been proposed to compensate for
the permanent conversion of Palustrine Forested (PFO) wetlands to Palustrine Scrub-
Shrub (PSS) or Palustrine Emergent (PEM) wetlands, however, additional mitigation
should be required if fragmentation of large wetland complexes are proposed by the
Applicant.

State and Federal Threatened and Endangered Species

Indiana Bats (Myotis sodalis) and Northern Long-Eared Bats (Myotis septentrionalis) 2

The acreage of tree removal for the entire project should be quantified. If tree
removal will be greater than ten (10) acres, the Department requests that the applicant
evaluate the indirect and cumulative impacts to Indiana bats and northern long-eared
bats, and FERC consider implementation of mitigation measures.

Bog Turtle (Clemmys muhlenbergii) 3

It appears that only 44 of the 49 wetlands along the Preferred Route were
investigated as being suitable bog turtle habitats. The additional five (5) wetlands should
be assessed in the field and the Department requests that the resulting survey information

2 Indiana bats are a federally and New York State listed endangered species and northern long-eared bats
are a federally and New York State listed threatened species.
3 The bog turtle is a federally listed threatened species and a New York State listed endangered species.
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be provided to Department staff for review, consideration and, if necessary, supplemental

comments. .

The Department reserves its right to supplement these comments, or submit

additional filings, based on (i) any additional reviews it may conduct; (ii) any other
comments filed in this proceeding; and/or (iii) responses by the Applicant to the comments
contained herein.

Thank you for your consideration of these important issues. If you have questions,
please feel free to contact me or the Project Manager, Karen Gaidasz, at (518) 402-9153,
or karen.gaidasz@dec.ny.gov.

Sincerely,

/s/

Sita Crounse
Senior Attorney

ecc: Anthony Rana (FERC Environmental Project Manager)

Gary A. Kruse (Millennium Pipeline Company, LLC)
Randy Parker (Millennium Pipeline Company, LLC)
John Zimmer (TRC Environmental Corporation)
Karen Gaidasz (NYSDEC DEP)
Heather Gierloff (NYSDEC R3 Habitat)
Lisa Masi (NYSDEC R3 Habitat)
Adedayo Adewole (NYSDEC R3 DOW)
Brian Orzel (USACE NY District)
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Document Content(s)

DEC Comments - Valley Lateral FERC License Application.PDF............1-5