New flap flies over Galloo

An eagle nest photographed on Galloo Island previously has prompted a motion to dismiss Apex Clean Energy’s application for a commercial wind project permit, a call that resulted in an extension of the application review.

Another attempt to terminate the Galloo Island wind project based on the discovery of a bald eagle nest has ruffled the feathers of the developer and state agencies for varying reasons.

Apex Clean Energy previously admitted it didn’t divulge the spotting of a “potential eagle nest” on the island, which the state Department of Environmental Conservation later determined was in fact a bald eagle nest, in the state Article 10 application for its 109-megawatt project. In response to calls for dismissal from local parties involved in application review, examiners overseeing the Article 10 process ordered Apex to revise its application. A review extension was established.

The developer also planned to implement mitigation measures to address the nest in reaction to the order.

Local party Clifford P. Schneider, however, once again called for examiners to dismiss the application, accusing Apex of misleading parties by previously calling the nest a “potential eagle nest.”

In his second motion for dismissal, which had redacted information, Mr. Schneider, Wellesley Island, said he obtained field notes and photos taken by Stantec Consulting, the consultant for the developer’s 2017 point count survey, that indicated the nest was an actual bald eagle nest. By calling it a “potential eagle nest,” the former fishery biologist believes, the developer gave false information in its testimony and called for examiners to toss out its Galloo Island Wind application.

“Apex’s deceit has gotten even worse, and that’s the reason from the second motion,” Mr. Schneider said, adding that he believes the notes were redacted to hide information from the public. “At the same time, they’re trying to hide evidence from public view.”

Apex, however, refuted Mr. Schneider’s motion, calling his arguments inaccurate and repetitive of his previous testimony.

In a response letter, the developer’s attorney, James A. Muscato II of Young/Sommer LLC, said it never possessed Stantec’s field notes until Mr. Schneider requested them, adding the surveyors typically provide only the final reports summarizing their field notes and observations. Apex labeled the nest as a “potential eagle nest” because it was first discovered by the island caretaker, Mr. Muscato wrote, and another consultant later found no sign of eggs or chicks at the nest.

“Of note, these conclusions are consistent with Stantec’s field note observations regarding the status of the nest in 2017. (Apex) has not misled the parties or the hearing examiners with its discovery responses nor did the previous ruling on Mr. Schneider’s first motion consider that the nest was not a bald eagle nest,” Mr. Muscato said in his letter. “In addition, the ruling recognized and required (Apex) to take steps to address the eagle nest, which the Applicant had agreed to do in its response to the motion.”

Two state agencies have also commented on Mr. Schneider’s recent motion for dismissal, and while neither agency agrees terminating the application would be warranted, both have called for further consequences.

The DEC in its response encouraged examiners to delay the review until Apex amends its application and that amendment is deemed compliant with public service law. The application review should also be extended six months, according to the department.

“The above chronology raises questions about the timeliness of disclosures and accuracy of statements, and whether such conduct occurred to obtain advantage in the review of the application and the development of the project,” the state Department of Public Service wrote in its response. “While staff takes no position on the remedy requested by the movant, significant consequences appear to be warranted.”

Apex previously planned to build 30 turbines on Galloo Island for its project, which would provide power to a substation in Oswego through a 32-mile underwater cable.

Prior to Mr. Schneider’s call for dismissal, the examiners ruled on another request to dismiss or postpone the review for Apex’s project from Anthony and Cara Dibnah, the owners of the former U.S. Coast Guard lighthouse on the island.

The Dibnahs have contended that the developer failed to recognize a property easement along Lighthouse Road, which starts at Gill Harbor, which they claim to have acquired when they purchased the property in 2000. In response, they have requested examiners halt the Article 10 review until the matter was resolved.

Apex officials, however, claimed the Dibnahs do not have an easement, arguing that the couple believe they share the use of an easement belonging to DEC. The developer has also argued the language in the former U.S. Coast Guard easement claims it terminates after two years of disuse and that the property owners had never been to the island, an argument the couple have refuted.

The examiners, in their November ruling, have denied the Dibnahs’ request for application dismissal and further delay in the review, adding that they don’t have the authority to “adjudicate real property rights in the context of an Article 10 proceeding.” However, they wrote that they would recognize that the Dibnahs could “assume that the easements are in place and developing a record on potential impacts of the project on the claimed easements.”

“I thought that was a real positive note,” Mrs. Dibnah said.

The couple have not yet determined how to move forward with their easement dispute, with Mrs. Dibnah saying the Coast Guard has been looking into the matter.

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