NY Siting Board: Order denying Nextera North Side solar facility

Excerpt of the decision by the Siting Board are provided below.

2. Impacts to Threatened and Endangered Species

With respect to threatened and endangered avian species, the Application states that several have been documented in the Project Area, including bald and golden eagles, Northern Harrier, sedge wren, short-eared owl, and upland sandpiper, with “unavoidable adverse impacts to habitat” expected to four of the species. With respect to the impacts on these species, North Side’s Application stated that “some impacts will occur as a result of this Project,” including “adverse habitat modification.” North Side included in Application Exhibit 22 Breeding Bird and Wintering Raptor Survey Reports that were designed to determine the presence and use of the Project Area by threatened and endangered grassland and raptor bird species. The Survey Reports confirmed that multiple threatened and endangered species were observed in multiple locations in the Project Area, with nearly 900 acres of potential habitat.

Application Exhibit 22 includes a “preliminary” Net Conservation Benefit Plan (NCBP) that addresses the Project’s impacts to grassland birds and winter raptors and indicates that habitat modification could not be avoided and that impacts to agricultural areas, which constitute the majority of habitat available for grassland birds, are unavoidable. The NCBP further provides that avoiding impacts to grassland bird habitat during the nesting season or to raptor habitat during the over- wintering period is “not feasible.”

The NCBP proposes to rely on an Environmental Monitor during construction and, if protected species are discovered and confirmed or observed displaying roosting or breeding behavior within 500 feet of the Project area, DPS Staff and DEC Staff would be notified within 24 hours and the area posted and avoided until further activities are authorized by DEC Staff, which authorization may not be unreasonably withheld, conditioned or delayed.31 The NCBP estimates that the Project would adversely impact approximately 175.6 acres of grassland bird habitat.32

The NCBP did not propose on-site mitigation to address the threatened and endangered avian species and habitat impacts resulting from the Project (“the Applicant is unable to provide suitable and sufficient areas for on-site mitigation”).33 Instead, it proposes to later negotiate off-site mitigation, to pay a one-time “mitigation fee,” or to provide off-site mitigation for four of the protected species as follows: for every one acre of occupied breeding habitat adversely impacted, North Side would implement mitigation of 0.4 acres; and for every one acre of occupied wintering habitat adversely impacted, mitigation of 0.2 acres would be implemented.34

With respect to threatened and endangered reptiles and amphibians, North Side’s Application Exhibit 22 confirms the presence of the Blanding’s Turtle in the Project Area and notes that 1,504.49 acres of wetlands and streams within the Project Area may provide habitat for reptiles and amphibians, including the threatened Blanding’s Turtle. North Side also identifies known occupied habitat and states that construction activities “may result in a reduction of available habitat.” Application Exhibit 22 notes that approximately 47 acres of Blanding’s Turtle wetlands habitat would be converted by the Project’s construction disturbances, with an additional 13.5 acres of forested wetland and open water habitat impacted. It also notes that construction of the Project will result in the reduction of available habitat and that mortality events during construction activities within the Project Area are expected, but nevertheless notes that impacts on the Blanding’s Turtle are “expected to be negligible.” Nevertheless, Application Exhibit 22 notes that the taking of State and Federally listed species (including the protected Blanding’s Turtle and the identified avian species) “will not be caused by the construction and operation of the Project.”

The Application proposes further studies to determine the presence and site use of the Project Area by the Blanding’s Turtle and generally discusses minimization and avoidance measures such as temporary barriers (exclusion fencing), Blanding's Turtle monitors onsite, signage, trap/road hazard protection, educational pamphlets for onsite staff, and/or contractor turtle training.

Excerpt of Board's findings:

We find that the protections afforded in ECL (NY Environmental Conservation Law) Article 11 and 6 NYCRR (NY Codes Rules and Regulations) Part 182 are applicable to this Project and prohibit the “taking” of these species, which includes impairment, modification, or destruction of their habitat in mapped and unmapped wetlands. We further find that the record lacks sufficient information on which we can determine that the uncontroverted Project impacts on the Protected Species and their habitat have been minimized or avoided to the maximum extent practicable. The proposed Certificate Conditions (99, 99-a to 99-c) related to post-Certificate submission of an NCBP is insufficient and does not reflect impact minimization and avoidance to the maximum extent practicable. Reliance on the post-Certificate submission of a NCBP to define the Project’s impacts and to address minimization and avoidance measures is contrary to the requirements in PSL §168(3)(c). We find such impacts must be addressed before Certificate issuance. 

In this case, Project impacts to threatened and endangered species are of a vastly more substantial nature than those we have examined in other Article 10 proceedings. Here, hundreds of acres of wetlands, at least nine Protected Species have been observed in the Project Area, and the occupied habitat of at least four of those species is expected to be adversely impacted and taken. In short, the Application and the proposed NCBP Certificate Conditions do not represent minimization and avoidance of impacts to the maximum extent practicable. North Side has not met its burden to demonstrate that the Project’s impacts on threatened and endangered species and their habitat have been minimized or avoided to the maximum extent practicable, as required by PSL §168(3)(c).