E.20.  NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION  Office oft the General Counsel 625 Bioadway. 14th Floor, Albany, New. York 12233-1500 P: (518) 402-91851F (518)402-9018 vaww.decnyyov  March 29, 2019  Via Electronic Mail Secretary Kathleen H. Burgess Department of Public Service Three Empire State Plaza Albany, NY 12223 ecretaly@aps.nygoy  Sean Mullany, Administrative Law. Judge Office ofHearings and Alternative Dispute Resolution New York State Department of Public Service  Three Empire State Plaza Albany, NY 12223-1350 ean.Malanyg4psnygow  Daniel O'Connell, Administrative Law. Judge Office of Hearings and Mediation Services 625 Broadway, First Floor Albany, NY 12233-1550 Dme.Ocommal@dsenygow  New York State Department of Environmental Conservation  Re: Case No. 16-F-0559: Application of Bluestone Wind, LLC: for a Certificate of Environmental Compatibility and Public Need Pursuant toi Article 10 for Construction ofthel Bluestone Wind Farm Project Located in the Towns ofWindsor  and Sanford, Broome County  Dear Secretary Burgess and Examiners Mullany and O'Connell:  On behalf oft the New York State Department of Environmental Conservation (DEC), enclosed pleased find DEC's Statement ofIssues for Litigation in the above-referenced proceeding, DEC remains actively engaged in settlement negotiations with the Applicant and other parties. Depending on the outcome of those discussions, it is possible that some or all of  DEC's Issues for Litigation will be eliminated or narrowed.  NEWYORK. Department of SAUEUNV Environmental Conservation    Sincerely,  Am 3-  Jonathan A. Binder, Esq.  Encl.  cc: Active Party List DEC Review. Team  2    NEW YORK STATE BOARD ONI ELECTRIC GENERATION SITING AND. THE ENVIRONMENT  Case No. 16-F-0559: Application of Bluestone Wind, LLC fora a Certificate of  Environmental Compatibility and Public Need Pursuant to Article I0 for Construction oft the Bluestone Wind Farm Project Located in the Towns of Windsor and Sanford, Broome County  DEC STATEMENT OF ISSUES FORLITIGATION  Jonathan A, Binder, Esq. Office of General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, New York 12223-1350 (518).402-9188  Dated: March 29, 2019 Albany, New York    NEW YORK STATE BOARD ONI ELECTRIC GENERATION SITING AND THE ENVIRONMENT  Case No. 16-F-0559: Application of] Bluestone Wind, LLC for a Certificate of  Environmental Compatibility and Public Need Pursuant to Article 10 for Construction of the Bluestone Wind Farm Project Located in the Towns of Windsor and Sanford, Broome County  DEC STATEMENT OF ISSUES FOR LITIGATION  Introduction  Pursuant to the Examiners' Ruling on Procedural Schedule, issued March 7,2019, the New York State Department of Environmental Conservation (DEC) submits this Statement of Issues for Litigation concerning the Application of Bluestone Wind, LLC (Applicant) for a Certificate of Environmental Compatibility and Public Need Pursuant to Article: 10 for Construction of the Bluestone Wind Farm Project Located in the Towns of Windsor and Sanford, Broome County (Project). DEC may eliminate or narrow issues depending on the outcome of ongoing settlement negotiations with the Applicant and other parties. DEC also reserves the right to supplement this list with additional items, ifother relevant issues are identified or ifit is necessary to develop an adequate record to support a decision under Article 10 oft the Public Service Law (PSL).  Article 10 ofthe PSL requires the Applicant to demonstrate compliance with all applicable State and local regulations. PSL $162(1). Furthermore, Article 10 ofthe PSL requires the Board' to make certain findings and determinations regarding a proposed facility prior to issuing any: Certificate, including regarding the environmental impacts ofthe construction and operation ofthe proposed facility, and that the proposed facility is designed to operate in compliance with applicable State laws and regulations concerning the environment. PSL $ 168(2) and (3).  Asitrelates to the Project, certain environmental statutes and regulations apply as to which DEC has original jurisdiction for the purpose of examining whether the: Project should be authorized' by thel Board (as defined in PSL $160(4)). Specifically, the Applicant must demonstrate compliance with the following statutory and regulatory provisions with regard to the construction and operation of the Project: (i) Article 11 of the Environmental Conservation Law (ECL) and Title 6 ofthe New York Code, Rules and Regulations (6 NYCRR) Part 182 with respect to listed species; (ii). Article 15 oft the ECL: and 6NYCRR Part 608 with respect to: stream disturbances and water quality; (iii) Article 24 of the. ECL and 6 NYCRR Parts 663 and 664 with respect to disturbances of regulated freshwater wetlands and their adjacent areas; and (iv) Article 9 of the ECL with respect to invasive species. In addition, construction and operation ofthe Project has the potential to result in other environmental impacts. Therefore, DEC proposes the following issues  for litigation in this proceeding.  2    PSL Article 10 Issues  1. Listed Species:  DEC Regulatory Authority: ECL Article 11 and 61 NYCRR Part 182  The Applicant contends that the Project will result in the take of State/federal threatened or endangered species, including Northern Long-Eared bats (NLEB), Bald Eagles, and Golden Eagles. The Applicant proposes avoidance and minimization measures for these species, which could include seasonal tree: clearing windows and curtailment. For unavoidable impacts, the Applicant proposes a Net Conservation Benefit Plan, which must result in a net conservation benefit to the species. DEC continues to work with the Applicant to determine whether it meets regulatory standards for the proposed take ofthe listed species from the construction and operation of the Project. This may include implementation of additional avoidance and minimization measures, as well as the development ofal Net Conservation Benefit package that is approvable and in compliance with the requirements of ECL. Article 11 and 6 NYCRR Part 182.  DEC  by  2. Streams:  DEC Regulatory Authority: ECL Article 15 and 61 NYCRR Part 608  The Article 10 application that was submitted and filed by the Applicant on September 18, 2018, states that there are several protected streams within the Facility area including one Class A stream (best use for drinking water), one Class B(t) (best use for primary and secondary contact recreation), and sevéral Class C streams designated with a NYSDEC Standard of (t) indicating they support trout. These streams include Fly Creek, Marsh Creek & tributaries, Oquaga Creek Upper & tributaries, Bone Creek, and Big Hollow Brook tributaries. After the filing of the Article 10application, DEC staff determined that Oquaga Creek constitutes navigable waters ofthe State. Therefore, the wetlands adjacent to and contiguous to Oquaga Creek, that. are inundated at mean  high water level, are also regulated under 6 NYCRR Part 608.  The Applicant must confirm the totality of the stream and associated wetland disturbances with DEC, and. then demonstrate compliance with regulatory standards for avoiding and/or controlling stream disturbances and protecting water quality, including standards such as those concerning turbidity and narrative standards that establish best usages. This will include consideration of appropriate stream crossing methods to minimize impacts, including evaluation of the use of horizontal directional drilling (HDD). DEC will continue to evaluate the proposed impacts to streams and work with the Applicant to avoid and minimize impacts to the maximum  extent practicable. 3. Wetlands:  DEC Regulatory Authority: ECL Article 24 and 6 NYCRR Parts 663 and 664, and 6 The Applicant states that a total of4.71 acres of wetlands will be impacted by the project, including 3.61 acres of temporary impact, 0.42 acres of permanent impact, and 0.68 acres of permanent forested wetland conversion. The Applicant states that there will be no impacts to. State wetlands regulated under ECL Article 24 and 61 NYCRR Parts 663 and 664. DEC concurs with this assessment based on the currently known proposed layout of the Project. The Applicant states  NYCRR Part 608.9 (Water Quality Certifications)  3    that impacts to wetlands will be avoided and minimized to the maximum extent practicable. DEC will continue to evaluate the proposed impacts to wetlands and work with the Applicant to avoid and minimize impacts to the maximum extent. practicable. For impacts that are not avoided or minimized, the Applicant will need to. implement a Wetland Mitigation Plan package that is  approvable by DEC. 4. Inyasiye Species:  DEC Regulatory Authority: ECL. Article 9 and 61 NYCRR Part 575  The. Article 10 application that was submitted and filed by the Applicant on September 18, 2018 included an Invasive Species Control Plan (ISCP). DEC will continue to evaluate the measures proposed by the Applicant to avoid and minimize the spread of invasive species (including those listed in 6 NYCRR Part 575) during construction, operation and maintenance activities. DEC: will continue to work with the Applicant to avoid and minimize impacts to the maximum extent practicable.The Applicant will need to implement a final ISCP package that is  approvable by DEC. 5. Other Issues:  The Applicant states: there are several locations where buried collection lines will be installed along and across steep slopes, including where slopes are greater than. 25 percent and a few locations where slopes exceed 35 percent. The Applicant states it will take measures to ayoid and minimize siltation, including developing andi implementing a Stormwater Pollution Prevention Plan ("SWPPP"). DEC will evaluate the proposed measures for construction on steep slopes and will work with the Applicant to ensure it is avoiding and minimizing construction on steep slopes  to the maximum extent practicable.  The Applicant proposes certain Facility components on 480-a Forest Tax: Law parcels, which will potentially result in landowners losing their 480-a status ifsuch placement violates the 480-a management plans for the parcels. DEC will evaluate the activities proposed on 480-a parcels and work with the Applicant to ensure they are avoiding work on 480-a properties to the maximum extent practicable, and that the Applicant is notifying landowners oftheir potential risk:  in terms of penalties or losses.  Conclusion  DEC's review of the application and submission of testimony concerning the above- referenced issues provides an independent assessment that can serve to only enhance the record for the Siting Board and should properly be added to the list of issues for litigation in this proceeding. Moreover, the resolution of these issues is neçessary for the Board to make the findings and determinations required by PSL Article: 10. As stated above, DEC reserves the right to identify additional issues necessary for litigation, and to eliminate or narrow any issues that are  resolved without the need for litigation.  4    Respectfully ysubmitted,  km B  Jonathan A. Binder, Esq. Chief, Bureau of Energy and Climate Change Office of General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, New York 12223-1350 (518)402-9188 omatan.imder@aeygow  Dated: March 29, 2019 Albany, New York  5