transcript for evidentiary hearing on 09.18.2013

7/29/2019 Transcript for Evidentiary Hearing on 09.18.2013

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STATE OF NEW YORK DEPARTMENT OF PUBLIC SERVICETHREE EMPIRE STATE PLAZA, ALBANY, NY 12223-1350

www.dps.ny.gov

PUBLIC SERVICE COMMISSION

AUDREY ZIBELMAN PETER McGOWANChair General CounselPATRICIA L. ACAMPORA

GARRY A. BROWN KATHLEEN H. BURGESSGREGG C. SAYRE Secretary

DIANE X. BURMANCommissioners

Re: Case 12-T-0248NYSEGColumbia County Transmission ProjectSeptember 18, 2013

** Please note this is a Preliminary transcript, subject to later edits when reviewed by the

Administrative Law Judges assigned to the cases.


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Page 342

1

2 STATE OF NEW YORKPUBLIC SERVICE COMMISSION

3

4 APPLICATION OF NEW YORK STATE ELECTRIC and GASCORPORATION FOR A CERTIFICATE OF ENVIRONMENTAL

5 COMPATIBILITY AND PUBLIC NEED FOR THE CONSTRUCTION OFTHE "COLUMBIA COUNTY TRANSMISSION PROJECT,"

6 APPROXIMATELY 11.1 MILES OF 115 KILOVOLT TRANSMISSIONLINES AND RELATED FACILITIES IN THE TOWNS OF CHATHAM,

7 GHENT, AND STOCKPORT, IN COLUMBIA COUNTY

8 CASE# 12-T-0248

9 Tuesday, September 18, 201310 9:30 a.m.

Third Floor Hearing Room11 Three Empire State Plaza

Albany, New York 12223-135012

13 A.L.J. ELEANOR STEINAdministrative Law Judge

14 Three Empire State PlazaAlbany, New York 12223-1350

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800.523.7887 Associated Reporters Int'l., Inc.

Associated Reporters Int'l., Inc. 800.523.7887

Page 343

1 Case 12-T-0248 - 9-18-20132 APPEARANCES:3 FOR PUBLIC SERVICE COMMISSION:

4 STEVEN BLOW, ESQ.STAFF COUNSEL

5 OFFICE OF GENERAL COUNSELNEW YORK STATE PUBLIC SERVICE COMMISSION

6 Three Empire State PlazaAlbany, New York 12223-1350

7ANDREW C. DAVIS

8 Utility SupervisorOffice of Energy Efficieny and the

9 Environment

NEW YORK STATE PUBLIC SERVICE COMMISSION10 Three Empire State PlazaAlbany, New York 12223-1350

11FOR DEPARTMENT OF STATE DEPARTMENT OF AGRICULTURE

12 AND MARKETS:13 CHRIS CUDDEBACK, ESQ.

SENIOR ATTORNEY14 108 Airline Drive

Albany, New York 1223515

MATTHEW J. BROWER16 Agricultural Resource SpecialistDivision of Land and Water Resources

17 108 Airline DriveAlbany, New York 12235

18NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL

19 CONSERVATION:20 LISA A. WILKINSON, ESQ.

Office of General Counsel21 625 Broadway 14th Floor

Albany, New York 12233-150022SARAH EVANS

23 DIVISION OF ENVIRONMENTAL PERMITS625 Broadway 14th Floor

24 Albany, New York 12233-150025262728


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1 Case 12-T-0248 - 9-18-2013

2 NEW YORK STATE ELECTRIC AND GAS:

3 CULLEN and DYKMAN, LLPBY: DAVID T. METCALFE, ESQ.

4 ANGELA N. CASCIONE, ESQ.100 Quentin Roosevelt Blvd.

5 Garden City, New York 11530

6FOR TOWN OF GHENT:

7GREENBERG & GREENBERG

8 BY: MARK DAVID GREENBERGFour East Court Street

9 Hudson, New York 12534

10 FOR PROTECT GHENT:

11 GREENBERG TRAURIGBY: WILLIAM A. HURST, ESQ.

12 54 State Street, 6th FloorAlbany, New York 12207

13 PANEL:

14 Carol HowlandSarah Gilstrap

15 Dusty Werth16

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1 Case 12-T-0248 - 9-18-2013

2 (The hearing resumed at 9:36

3 a.m.)

4 A.L.J. STEIN: Good Morning.

5 This is Judge Stein. We'll now pick up this

6 hearing where we left off yesterday.

7 I have circulated a revised

8 schedule for today's cross examination and we're

9 going to resume with cross examination of the

10 panel, consisting of Carol Howland, Sarah Gilstrap,

11 and Dusty Werth. And our first attorney will be

12 the representative for the Town of Ghent.

13 MR. GREENBERG: Thank you, Judge.

14 A.L.J. STEIN: Would you like

15 this exhibit marked for identification?

16 MR. GREENBERG: Yes, I would,

17 please, Judge.

18 A.L.J. STEIN: This will be

19 marked Exhibit Number Forty-six.

20 MR. GREENBERG: And I would just

21 describe that as a informational request and

22 response to Protect Ghent's response number --

23 request date August 29th, 2013, with response

24 number C.C.T.P. dash twelve dash zero seven two.

25 And this is Dusty Werth and Timothy -- Timothy


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Page 346

1 Case 12-T-0248 - 9-18-2013

2 Lynch.

3 A.L.J. STEIN: And this is a

4 two-page document. Thank you. That will be marked

5 as Exhibit Number Forty-six.


7 Well, good morning, Ms. Howland, Ms. Gilstrap, Mr.

8 Werth, your Honor.

9 Just a couple questions of the

10 panel, regarding the Town of Ghent Comprehensive

11 Plan.

12 CROSS EXAMINATION

13 BY MR. GREENBERG:

14 Q. I believe you made reference to

15 that yesterday. Is that correct?

16 A. (Werth) Yes.

17 Q. Now, did you review the Town of

18 Ghent Comprehensive Plan, in connection with your

19 route planning?

20 A. Yes.

21 Q. And that was both for the -- the

22 four alternative routes, as well as the four

23 thirty-four point five kV alternative routes?

24 A. Correct.

25 Q. And did you review the entire


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1 Howland/Gilstrap/Werth - Cross - Greenberg

2 Town of Ghent Comprehensive Plan?

3 A. We did.

4 Q. Thank you. Now, if you could

5 take a look at figure three dash four, which is

6 entitled Columbia County Transmission Project,

7 figure three dash four, NYSEG thirty-four point

8 five kV alternative. I believe that was part of

9 the response to the June 22nd, 2012 Appendix A,

10 information request?

11 Is that right, Mr. Metcalfe?

12 MR. METCALFE: That would be

13 correct. But more specifically, it was one of the

14 additional info -- information requests, and

15 specifically, B as in boy.

16 MR. GREENBERG: Thank you, sir.

17 A.L.J. STEIN: I'm sorry. What

18 are we looking at?

19 MR. GREENBERG: That's a map,

20 Judge, which is figure three dash four, which is a

21 map actually of the planned route for a thirty-four

22 kV alternative that was put together by NYSEG.

23 A.L.J. STEIN: And -- and where

24 is this in the record? Is this in --

25 MR. GREENBERG: It's in the


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2 first --.

3 A.L.J. STEIN: -- the first

4 deficient?

5 MR. METCALFE: It -- it --

6 A.L.J. STEIN: First deficiency

7 letter?

8 MR. METCALFE: -- it is in the

9 first deficiency letter, the response -- the first

10 response to the deficiency letter.

11 A.L.J. STEIN: Thank you.

12 MR. GREENBERG: And -- and Judge,

13 it was the map that I put up yesterday, but

14 unfortunately it's very hard, I think, to be able

15 to see it in this room, posted up on the board like

16 that.

17 A.L.J. STEIN: Go ahead.


19 BY MR. GREENBERG: (Cont'g.)

20 Q. Panel, do you have that in front

21 of you?

22 A. (Werth) Yes.

23 Q. Was your panel involved in

24 connection with the production of figure three dash

25 four?


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2 A. Yes.

3 Q. Okay. Now, if I understand

4 correctly, you would have been given the two tap

5 points, the one to the right-hand side of the map

6 here, Nobletown Road, and the other tap went on the

7 left-hand side of the map, near Soller Heights, and

8 would have been asked to basically set up a route

9 that connected those tap points. Is that correct?

10 A. Correct.

11 Q. So, basically, it's not so much

12 putting together point A to B, but in this case

13 putting together the initial starting point near 9H

14 and then running a -- a thirty-four point five kV

15 line out to Nobletown Road, as well as one that

16 would be going down to Soller Heights; correct?

17 A. Correct.

18 Q. Now, could you just give a -- a

19 general description of how you went about doing

20 that? If I understand, it was done as

21 desk-topping, is that right?

22 A. Yes. It was done through a

23 desktop review of environmental and land use

24 constraints in the area.

25 Q. And -- and can you describe


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2 exactly what a desktop review consists of?

3 A. It's reviewing publicly available

4 data and databases that can be loaded in to a

5 G.I.S., or Geographic Information System, to

6 provide mapping of all the constraints.

7 Q. And there were no site visits in

8 connection with the planning of NYSEG's thirty-four

9 point five kV alternative; were there?

10 A. Not specifically for this. There

11 was site visits in the area that also coincide with

12 the proposed one fifteen kV route.

13 Q. Okay. Do -- do you have any

14 estimate as to how many hours were spent, in

15 connection with the planning and development of

16 the -- the route for the thirty-four point five kV

17 alternative that is shown in figure three dash

18 four?

19 A. I don't, off the top of my head.

20 Q. Are -- are -- are you able to

21 give a rough estimate at all?

22 A. Not off the top of my head.

23 Q. Were you personally involved

24 in -- in -- in putting together the route for

25 NYSEG's thirty-four point five kV alternative?


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2 A. Yes.

3 Q. Now, some of the route that's

4 shown in thirty -- in figure three dash four runs

5 along existing roadways. Is that correct?

6 A. Yes.

7 Q. Okay. For -- for instance, if we

8 look towards the -- the east, there is an area that

9 it goes along Route 203, near where it's shown as

10 Chase Road and -- and Big Woods Road.

11 MS. HOWLAND: Dave, could we

12 possibly get a larger map?

13 (Off-the-record discussion)

14 A. Could you please repeat the

15 question?


17 Q. Sure. If I could just bring your

18 attention to the route -- it's -- on the east --

19 it's east of the Taconic State Parkway. And if you

20 follow the route along, it then meets up with Route

21 203, near where it shows as Chase Road and Big

22 Woods Road. Do you see that?

23 A. (Werth) Yes.

24 Q. Okay. Now, the route that you

25 chose runs along Route 203 at that point; correct?


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2 A. For a short distance, yes.

3 Q. Right. And -- and are you

4 considering this to be a -- a transmission line, a

5 sub-transmission line, a distribution line, or

6 something else?

7 A. I believe it is a transmission

8 line.

9 Q. Okay.

10 A. Or sub-transmission line.

11 Q. Or both? Thirty-four point five

12 can be considered either a sub-transmission or a

13 transmission line; correct?

14 A. That would be a question for the

15 engineers, I believe.

16 Q. Okay. But in any case, the

17 thirty-four point five kV line, that you're running

18 can go along roadways; right?

19 A. In certain areas, yes.

20 Q. Okay. Well, what would be the

21 constraints of being able to run along a roadway in

22 one area, as compared to not being able to run

23 along a roadway in another area?

24 A. Having the available distance for

25 the right-of-way.


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2 Q. Okay. And -- and what would that

3 available distance for the right-of-way be?

4 A. One hundred feet.

5 Q. Well, that's NYSEG's

6 determination as to what the right-of-way should

7 be; correct?

8 A. We were instructed that it would

9 be a hundred foot right-of-way. I don't know what

10 goes into that.

11 Q. But you don't really require a

12 hundred foot right-of-way for a thirty-four point

13 five kV line; do you?

14 A. That's not my area of expertise.

15 Q. Okay. In fact, what you can do

16 is you can trim some of the trees along the roadway

17 to create enough space for that line. Isn't that

18 right?

19 A. Again, that's not my area.

20 Q. Okay. So, getting back to the

21 area of the route, where it runs along 203 and

22 picks up that short area near Chase Road and Big

23 Woods Road, now arguably, other than based on the

24 constraint that you just talked about, you could

25 run that line, for instance, all the way on 203, to


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2 where it meets 22, and then run it all the way on

3 Route 22, down to Nobletown Road, is that right?

4 A. No.

5 Q. And why not?

6 A. There's not enough room for a

7 hundred-foot-wide right-of-way.

8 Q. Okay. So, the only reason that

9 you're saying you can't take that route along 203

10 and then 22 is because you would be requiring a

11 hundred-foot right-of-way?

12 A. I don't know that that is the

13 only reason that we couldn't, but that is the

14 primary reason that it was not an alternative.

15 Q. Based on the instructions that

16 you received?

17 A. Based on the need for a

18 hundred-foot right-of-way.

19 Q. And -- and who -- who directed

20 you that you required a hundred-foot right-of-way,

21 in connection with the creation of an alternative

22 thirty-four point five kV, for this project?

23 A. That would have come from the

24 NYSEG engineering.

25 Q. Okay. Do you know anyone in


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2 particular? Did you speak with anyone? Do you

3 recall anyone in particular or is that written

4 correspondence?

5 A. I don't believe it was written

6 correspondence. I believe it came through the

7 NYSEG project manager at the time.

8 Q. And -- and with that have been

9 Mr. Bender?

10 A. Yes.

11 Q. And is Mr. Bender still the

12 project manager?

13 A. No.

14 Q. Who -- who took Mr. Bender's

15 place?

16 A. Ayo.

17 Q. Mr. Ayo or Ms. Ayo?

18 A. Mr. Ayo.

19 Q. Mr. Ayo?

20 MR. METCALFE: The name's Ayo

21 Jemiri.

22 MR. GREENBERG: Thank you.

23 MR. METCALFE: I -- I can point

24 out, too, that the engineering panel, the Mike

25 Barteck (phonetic spelling) Panel, scheduled for


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2 next week, is very familiar with the company's

3 standards for right-of-way widths, so I'm happy to

4 steer you in that direction for better information

5 than Mr. Werth is able to give you.

6 MR. GREENBERG: Thank you, very

7 much, Mr. Metcalfe. I appreciate that.

8 A.L.J. STEIN: Just one moment.


10 A.L.J. STEIN: Please proceed.


12 Q. Now, wouldn't it be true that the

13 route, if it were able to go along existing

14 roadways, would cause less environmental impact?

15 A. (Werth) It would depend on -- on

16 the route.

17 Q. Well, would it depend on the

18 route or would it depend on something on in

19 particular, in connection with the road at that one

20 area?

21 A. It would depend on the route and

22 what -- what resources are crossed.

23 Q. Well, wouldn't that roadway

24 already be crossing those resources? Or are you

25 concerned again with the hundred-foot right-of-way?


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2 A. It would be a hundred-foot

3 right-of-way and it would need to be outside of the

4 road.

5 Q. Okay. And when you say

6 hundred-foot right-of-way, are you looking at a

7 fifty feet on one side of the road and fifty feet

8 on the other side of the road, or something else?

9 A. No. It would need to be a

10 hundred foot, consecutive, fifty feet either side

11 of the center line.

12 Q. So, the hundred-foot right-of-way

13 is taken from -- fifty feet from the center line of

14 the roadway?

15 A. No. From the center line of the

16 transmission line.

17 Q. All right. So, if it ran along,

18 say, the west side of the roadway, it would have to

19 be fifty feet further to the west and then an

20 additional fifty feet to the east?

21 A. No.

22 Q. I'm confused.

23 A. It would be fifty feet either

24 side of the center line of the transmission line.

25 Q. Okay. And -- and part of that


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2 would be in the roadway, most probably, and part of

3 it would be not in the roadway. Isn't that

4 correct?

5 A. I -- I don't know NYSEG's

6 standards, if they allow sharing of road

7 right-of-way or not.

8 Q. Now, looking again, at figure

9 three dash four, now over more towards the western

10 area, where the thirty-four point five kV line

11 connects into what would be the new one fifteen

12 substation, if you go eastward from there, your

13 alternative route makes a -- a -- a north -- a

14 northern turn and appears to basically go along the

15 same route that was provided with the alternatives

16 for the one fifteen kV line. Is that right?

17 A. That's correct.

18 Q. Now, did you consider continuing

19 east to hook into anything on County Route 22 at

20 that point?

21 A. No. We determined that County

22 Road -- or County Route 22 does not have adequate

23 space for a hundred-foot right-of-way.

24 Q. And -- and how did you make that

25 determination? Through -- what on your desktop


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2 in -- allowed you to make that determination?

3 A. Well, in this area, we actually

4 had site visits, so we had more than just desktop.

5 But primarily it is the homes located along County

6 Route 22 do not allow for the hundred-foot

7 right-of-way.

8 Q. Okay. And if I could just direct

9 your attention to the exhibit that was just handed

10 up, which is Protect Ghent's P.G. Nine.

11 MR. GREENBERG: I'm sorry, your

12 Honor. I had forgot what number you had marked

13 that as.

14 A.L.J. STEIN: Forty-six.


16 Q. Exhibit Number Forty-six, Mr.

17 Werth, you prepared this response?

18 A. (Werth) Yes.

19 Q. Okay. If I understand correctly,

20 this was served on Mr. Hurst, actually, during the

21 hearing yesterday. Is that correct?

22

23 A. I'm not sure when it was served.

24 Q. Well, what -- when did you --

25 when did you create this response?


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2 A. I don't believe --.

3 MR. METCALFE: I -- I'm going to

4 object because the -- the witness doesn't know --

5 MR. GREENBERG: Okay.

6 MR. METCALFE: -- the process

7 that occurred after he had signed off on the --

8 MR. GREENBERG: I'll ask him --

9 MR. METCALFE: -- I.R. --.

10 MR. GREENBERG: -- another way.

11 MR. METCALFE: Thank you.

12 MR. GREENBERG: I'll -- I'll

13 withdraw the question. Thank you, sir.


15 Q. Do you know when you provided the

16 information in connection with this response,

17 Exhibit Number Forty-six?

18 A. (Werth) I believe it was last

19 week.

20 Q. Okay. Now, looking at response

21 number one, this states as a -- that no analysis or

22 studies have been completed for the potential use

23 of County Route 22 as an alternative, because it

24 was determined -- and I'm paraphrasing that, County

25 Route 22 has many residences that are less than a


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2 hundred feet off of County Route 22, which would

3 require that a route along this route would have to

4 take homes or be required to cross the road

5 multiple times, if there are not residence on both

6 sides.

7 Is that information that you

8 provided, Mr. Werth?

9 A. Yes.

10 Q. Okay. How many residences are we

11 talking about?

12 A. I don't know off the top of my

13 head.

14 Q. Is it more than one or two?

15 A. Yes.

16 Q. Is it more than ten?

17 A. I -- I don't know.

18 Q. And when you say take homes, are

19 you talking about actually having to take homes by

20 eminent domain or destroy them to allow the line to

21 go through?

22 A. The houses would have to be

23 removed to allow for the hundred-foot right-of-way.

24 Q. Are there any existing lines

25 running along County Route 22?


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2 A. I believe there are.

3 Q. And what type of lines currently

4 run along County Route 22?

5 A. I'm not sure, but I believe that

6 they would be distribution lines.

7 Q. Okay. And -- and those are

8 thirty-four point five distribution lines?

9 A. I do not know that.

10 Q. Okay. Now, I -- I guess it's --

11 again, is -- is it your panel's place to be able to

12 discuss whether a new thirty-four point five

13 kilovolt line could travel along the existing line

14 that's on Route 20 -- on County Route 22?

15 MR. METCALFE: I'd aim that at

16 the Mike Barteck Panel.

17 MR. GREENBERG: Thank you, sir.


19 Q. Okay. Now, you also stated in

20 Exhibit Forty-six that the road would have to --

21 the line would have to cross the road multiple

22 times.

23 Now, did you consider, in

24 planning NYSEG's thirty-four point five kV

25 alternative, whether any portions of the line could


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Page 363


2 be undergrounded?

3 A. (Werth) No.

4 Q. When you were planning on the

5 four alternatives for the one fifteen kV line, did

6 you consider whether any portions of that line

7 could be undergrounded?

8 A. No. That was outside of the --

9 our scope of work.

10 Q. And -- and when you say outside

11 your scope of work, you're saying it was outside

12 your scope of direction from your principal. Is

13 that correct?

14 A. Yes. We were hired to route an

15 overhead transmission line.

16 Q. And it was made clear to you

17 that -- from the very start that none of it would

18 be undergrounded. Is that correct?

19 A. Like I said, we were hired to

20 route an overhead transmission line, not an

21 underground transmission line.

22 Q. Well, what about a partially

23 underground transmission line?

24 A. No. We were directed to site a

25 overhead transmission line.


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2 Q. Thank you very much.

3 MR. GREENBERG: I have no further

4 questions, Judge.


6 For the Department of Environmental Conservation?

7 MS. WILKINSON: Your Honor, I'm

8 going to be handing out interrogatory responses.

9 And I'm going to hand them out. We had sixteen

10 questions, sixteen response -- sets of responses.

11 I'm going to hand them in packet of all sixteen

12 responses, if that's okay, for my exhibit. But I'm

13 going to ask questions on some of the individual

14 responses.

15 Or do you want to mark them

16 individually?

17 A.L.J. STEIN: I'm willing to

18 take them as a packet, if they -- do they have --

19 are -- have you numbered the pages?

20 MS. WILKINSON: We've numbered --

21 the responses are numbered and most of the

22 responses are one page, front and back. Some of

23 them are stapled. Anyone that's multiple pages,

24 I've stapled, but I also have a summary table of

25 each response and the number of pages.


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2 A.L.J. STEIN: Okay. I'm just

3 concerned that --.

4 MS. WILKINSON: I can do it

5 separately.

6 A.L.J. STEIN: I'm just concerned

7 that if parties want to refer to this in the

8 record --

9 MS. WILKINSON: Okay.

10 A.L.J. STEIN: -- there would be

11 no way to say Exhibit Forty-six, page twelve.

12 MS. WILKINSON: That's fine. I

13 can do -- we can do it separately.

14 I have -- I mean, I'm still going

15 to hand them out as packets, just because --

16 A.L.J. STEIN: That's fine.

17 MS. WILKINSON: -- that's how

18 they were. And because some of the responses have

19 voluminous attachments, I don't have copies of the

20 attachments. I did copy the question and response,

21 but not the attachment, as directed. So, I have

22 complete copies for you and the court reporter.


24 MS. WILKINSON: Do you want -- so

25 I'll go through each one of them, individually,


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2 then? I can do that.

3 A.L.J. STEIN: Yeah. But we'll

4 identify them collectively as Exhibit Number

5 Forty-six -- Forty-Seven. Sorry.



8 MR. METCALFE: Lisa, does this

9 include -- you handed out four or five I.R.s

10 yesterday.

11 It's the whole batch?

12 MS. WILKINSON: It's the whole

13 batch.

14 MR. METCALFE: Great.


16 MR. BLOW: Your Honor, may I

17 inquire -- Ms. Wilkinson said that she is not

18 providing copies of the attachments, but the

19 attachments are -- have they been pre-filed?

20 MS. WILKINSON: Yes, they have.

21 MR. BLOW: So, the attachments

22 are a part of the exhibit --

23 MS. WILKINSON: Correct.

24 MR. BLOW: -- it's just they're

25 not being handed out in hard copy?


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2 MS. WILKINSON: Correct.

3 I have a copy -- a hard copy for the judge and I

4 can supply a copy to the court reporter if you want

5 me to do that.

6 A.L.J. STEIN: You don't need to.


8 MR. BLOW: Okay.

9 MS. WILKINSON: So, what I just

10 handed out --

11 MR. BLOW: Thanks.

12 MS. WILKINSON: -- were

13 interrogatory responses to D.E.C. One through

14 Sixteen.

15 A.L.J. STEIN: So this will be

16 Exhibit Number Forty-seven for identification. And

17 it consists of D.E.C. interrogatories and

18 responses, numbers One through Sixteen.

19 Is that correct, Ms. Wilkinson?

20 MS. WILKINSON: That's correct.



23 BY MS. WILKINSON:

24 Q. Good morning.

25 A. (Howland) Good morning.


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1 Howland/Gilstrap/Werth - Cross - Wilkinson

2 Q. And I'll start by assuming that

3 there are no changes to the interrogatory responses

4 and the responses, as the authors are indicated,

5 are the same responses that you would give today?


7 Q. Okay. I'm going to start by

8 asking you about best management practices. In

9 D.E.C. One, we -- D.E.C. inquired whether NYSEG

10 would utilize the best management practices that

11 had been developed in the case of the Rochester

12 Reliability Project, whether those practices would

13 also be utilized for the Columbia County

14 Transmission Project?

15 A. Yes, they would.

16 Q. And today, you are not aware of

17 any changes to those practices that NYSEG has

18 implemented in the case of Rochester?

19 A. No. There's no changes to that

20 document.

21 Q. And there's no changes to the

22 practices that you've actually implemented to the

23 project? In other words, they may -- the document

24 may not have changed, but on the ground, have you

25 made any changes?


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2 A. Are you referring to this project

3 or the Rochester project?

4 Q. Well, I'm referring to the

5 Rochester project. In other words, are there --

6 have you made changes to the best management

7 practices, in the field, in implementation?

8 MR. METCALFE: Objection. That's

9 outside the scope of the --

10 MS. WILKINSON: Let me --

11 MR. METCALFE: -- company's --

12 MS. WILKINSON: -- rephrase it.

13 MR. METCALFE: -- direct case.

14 BY MS. WILKINSON: (Cont'g.)

15 Q. Have you made changes to the best

16 management practices in that project that you

17 believe would be appropriate for this project, that

18 would cause you to update the document for this

19 project?

20 A. (Howland) There have been no

21 changes to the document.

22 Q. And there's no -- there's --

23 you're not foreseeing any updates to the -- to the

24 document, as applied to this project?

25 A. No, I do not.


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2 Q. So, as far as -- so as far as we

3 know today, that document would govern this

4 project's best management practices, as applied to

5 terrestrial and wildlife resources?

6 A. The document would be used unless

7 there's a specific certificate condition that

8 overrode that.

9 Q. Okay. And that include -- so

10 that would apply to every single topic covered in

11 that document?

12 A. Correct. The -- our best

13 management practices are typical procedures to be

14 followed for the development of the environmental

15 management and construction plan. However, if

16 there's specific certificate conditions, they would

17 be followed first.

18 Q. Okay. So, turning to streams, in

19 section four point nine of the application, water

20 resources, which one of you prepared that

21 document -- or that section of Exhibit Four, in the

22 application?

23 A. I have written that text.

24 Q. Okay. And that was based on a

25 desktop analysis?


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2 A. Yes. That was based on

3 information we were able to find through D.E.C. and

4 other recourses.

5 Q. Ms. Howland and Mr. Werth, did

6 you review that section?

7 A. (Werth) Yes.

8 (Howland) Yes.

9 Q. Ms. Gilstrap, in preparing that

10 section, did you conduct any site visits?

11 A. (Ms. Gilstrap) No, I did not

12 conduct -- conduct any site visits.

13 Q. And as far as D.E.C. Ten is

14 concerned, I believe the response was prepared by

15 Mr. Werth and Ms. Howland.

16 Ms. Gilstrap, did you review that

17 response at all?

18 A. I was on maternity leave.

19 Q. Okay. Now, did any of the

20 witnesses consult with D.E.C. in preparing table

21 four point one five, which is the -- well, the

22 table in the application and also the -- as updated

23 in D.E.C. Ten, I believe. Prior to preparing that

24 table, did any of the witnesses consult with D.E.C.

25 staff?


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2 A. For the table in the application,

3 we did not consult with staff.

4 Q. And the table that was attached

5 to the response to D.E.C. Ten?

6 A. (Werth) No.

7 Q. No? Did anyone consult with

8 D.E.C., regarding the use of the National

9 Hydrologic Database?

10 A. No.

11 (Howland) No.

12 Q. And did anyone ask D.E.C. whether

13 that information was accurate?

14 A. (Werth) No.

15 Q. Ms. Gilstrap, so you did not go

16 on a site visit then, a few weeks ago, to see the

17 stream crossings?

18 A. (Ms. Gilstrap) No.

19 Q. But Mr. Werth was telling me you

20 had a site visit?

21 A. (Werth) Yes.

22 Q. And D.E.C. had listed four

23 crossing locations that were of particular

24 interest, I believe, right? Widows -- right, the

25 crossing at Widows Creek? There is a crossing at


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2 Widows Creek; correct?

3 A. Correct.

4 Q. Now, you didn't actually see that

5 crossing on the site visit, but that was one of the

6 ones listed. And I believe D.E.C. also listed the

7 Kline Kill crossing.

8 A. Correct.

9 Q. Which we did see?

10 A. Correct.

11 Q. And D.E.C. also listed a crossing

12 at Fitting Creek?

13 A. Correct.

14 Q. Which we didn't see the -- we saw

15 the creek and a representative location of the

16 crossing, but we didn't see the actual crossing

17 point?

18 A. Correct.

19 Q. Have you or Ms. Howland seen --

20 have you seen the crossing point at Fitting Creek,

21 where the -- where the project is proposed to

22 cross?

23 A. No.

24 Q. Have you visited that location?

25 A. No. Just on the site visit with


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2 you guys.

3 Q. Okay. And then the fourth, I

4 believe, was a crossing at the tributary to North

5 Creek, which I think was near the Haybed (phonetic

6 spelling) property, but we did make it on the site

7 visit. Is that correct?

8 A. Correct.

9 Q. And --.

10 A. (Howland) We have not gone on

11 private property for the routing.

12 Q. Okay. So, we did see the

13 crossing at Kline Kill, which is classified as a

14 C(T.S.) stream, indicating it supports trout

15 spawning. You know, based on your site visit then,

16 were you able to assess the characteristics of the

17 stream?

18 A.L.J. STEIN: Let me just -- let

19 me just interject for one second. Is that C dash

20 T.S.?

21 MS. WILKINSON: It's -- I believe

22 it's C parenthesis T.S.

23 A.L.J. STEIN: Okay.

24 MS. WILKINSON: I will provide

25 that. I apologize --


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3 MS. WILKINSON: -- but I will

4 provide that. I think it's parenthesis T.S.

5 A.L.J. STEIN: Okay. If you

6 could just make it clear as you go, so the reporter

7 gets a clear --

8 MS. WILKINSON: Sure.

9 It's C -- it's C parenthesis T.S.

10 A.L.J. STEIN: Thanks.

11 MS. WILKINSON: Indicating trout

12 spawning.


14 Q. And based on the site visit, were

15 you able to assess in -- whether it would be

16 possible to span that stream, rather than place

17 structures in the stream?

18 A. (Werth) Preliminary engineering

19 does not indicate any structures would be placed

20 within that stream.

21 Q. Or within a hundred feet of the

22 stream?

23 A. I believe that's the case, but I

24 need to check.

25 (Howland) The short answer is we -- we will not


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2 place structures in the stream. Just how far back

3 we can go to span it, we're not sure. And Dusty's

4 trying to see on that.

5 Q. I mean, I believe if you look at

6 page four sixty-eight and four sixty-nine of the

7 application, I think that's where you discuss --.

8 A. (Howland) Four six eight and

9 four six nine.

10 (Werth) And the response to

11 D.P.S. Six, we did not identify a structure within

12 a hundred feet of that stream.

13 Q. Okay. So, as you know right now,

14 there would be -- there would be no need to place

15 structures in or within a hundred feet of that

16 stream?

17 A. Correct.

18 Q. Now, as far the tributary to

19 North Creek is concerned, which was not viewed, are

20 you aware of whether that -- that particular stream

21 supports trout?

22 A. According to the classification

23 from the D.E.C. data set that we received, it does

24 not.

25 Q. But did you check with D.E.C. to


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2 see whether, in fact, that stream supports trout?

3 A. No, we did not.

4 Q. If -- if we look at the map and

5 the -- the two figures, figure -- figures four

6 point four and four point five, if -- well, four

7 point five, I believe --.

8 A. Is that four dash four and four

9 dash --?

10 Q. I -- I -- I apologize. Four dash

11 four and four dash five, it's in Exhibit Four of

12 the application. And if you look at the -- the

13 crossing, because you -- your application doesn't

14 overlay the streams and the wetlands, but looking

15 at the location of the North Creek crossing, and

16 if -- and I can point -- I can point that out to

17 you on -- I believe D.E.C., when we sent out our

18 requests for site visits, we included a map. We

19 actually drew it on figure four point five. I

20 don't know if that would help you. If you can tell

21 from figure four point five on the application, the

22 crossing at North Creek.

23 A. Yes.

24 Q. So, you see that general

25 location?


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2 A. Yes.

3 Q. Turning to figure four point

4 four, can you pinpoint relatively the same location

5 on that figure where the crossing would occur? Or

6 the vicinity?

7 A. Yes.

8 Q. So, it's -- the crossing occurs

9 in or near what's been marked as S.T. Eight or

10 Wetland Number Eight on the map?

11 A. I believe it would be south of

12 S.T. Eight. Is that correct?

13 Q. Slightly south, but the project

14 would cross S.T. Eight and then, not much further

15 than that, would cross the North Creek.

16 A.L.J. STEIN: I'm not sure I'm

17 seeing what you're seeing -- looking, but I'm not

18 sure I'm looking at the right -- you're looking at

19 figure four point four?

20 MS. WILKINSON: Right. Figure

21 four point four and S.T. Eight is -- it runs from

22 north to south, on the top of the page, to maybe

23 two-thirds down --

24 A.L.J. STEIN: Right.

25 MS. WILKINSON: -- heading east.


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2 And I'm looking where the project is crossing.

3 A.L.J. STEIN: Oh, I see. So,

4 sort of the eastern branch of S.T. Eight?

5 MS. WILKINSON: Right.

6 A.L.J. STEIN: I see. Thank you.


8 Q. So, the crossing and the wetland

9 area are -- are relatively in close proximity,

10 would you say?

11 A. (Werth) I believe S.T. Eight

12 corresponds with Kline Kill, not North Creek.

13 Q. Okay. Okay. I apologize. But

14 the -- the -- the wetland and the -- and the stream

15 crossing are in fair -- are fairly close

16 proximity -- I apologize -- would you say?

17 A. It appears the crossing on North

18 Creek is approximately twenty-five hundred feet

19 south of the south end of S.T. eight.

20 Q. And the crossing of Kline Kill?

21 A. The cross -- the crossing of

22 Kline Kill crosses through S.T. eight there.

23 Q. Correct. So that crossing is a

24 crossing of both the stream -- this class C(T.S.)

25 stream and a class two wetland?


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2 A. That's -- if that's a class --

3 classification of S.T. eight.

4 Q. Okay. I believe it is.

5 Now, turning to the application, in terms of

6 construction related in-stream work, do you

7 anticipate installing structures or need to install

8 structures within any of the four stream locations

9 that D.E.C. identified on the site visit? Do you

10 anticipate needing to install structures within the

11 stream during construction?

12 A. (Howland) Are you talking about

13 utility poles or temporary stream poles?

14 Q. No -- no. I'm talking about

15 temporary crossings, vehicular --.

16 A.L.J. STEIN: Excuse me --

17 excuse me. You really -- you really need to be

18 right on the microphone.

19 MS. HOWLAND: Okay. I'm sorry.

20 A.L.J. STEIN: And make sure it's

21 on. Thanks.

22 MS. HOWLAND: Okay.


24 Q. Vehicular access, you know,

25 anything that would be necessary for construction.


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2 A. (Howland) The one we looked at

3 near the conservation area, we believe we don't

4 have to cross with equipment. We could probably

5 come in from both sides. The other streams will be

6 looked at during the preparation of environmental

7 management and construction plan.

8 Q. So on -- so at this point, you

9 can't say for sure that there would not be

10 structures placed within the stream during

11 construction?

12 A. There may be temporary stream

13 crossings.

14 Q. And on pages four sixty-eight and

15 four sixty-nine of the application, it mentions the

16 utilization of swamp mats and other minimally

17 evasive bridge materials.

18 A. We would refer to the D.E.C.'s

19 erosion -- their standard specifications for stream

20 crossings. The -- they -- in D.E.C.'s blue book,

21 there's stream crossings techniques and we would

22 refer to them.

23 But any stream crossing method

24 would be in environmental management and

25 construction plan, which would go to the D.E.C. for


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2 approval before it's finalized.

3 Q. Correct. And -- and the

4 application noted that swamp mats may be utilized.

5 And I believe that was also referenced in D.E.C.

6 ten -- in the response to D.E.C. Ten.

7 A.L.J. STEIN: Excuse me. Are

8 you saying swamp mats?

9 MS. WILKINSON: Swamp -- yeah,

10 S-W-A-M-P M-A-T.

11 A.L.J. STEIN: Okay. Thank you.

12 What's a swamp mat?

13 MS. WILKINSON: That's what I'm

14 going to ask.



17 Q. So, we -- we can start with -- I

18 guess, we can start with swamp mats, but the

19 application mentions the use of swamp mats and

20 other minimally invasive bridge materials. Can you

21 describe what a swamp mat is?

22 A. (Werth) It's typically a timber

23 mat used to limit soil compaction and erosion and

24 that type of stuff in wetland areas.

25 Q. Okay. And -- and so the -- the


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2 reference in the application on, I believe, page

3 four sixty-eight and four sixty-nine to the use of

4 swamp mats and minimally invasive bridge materials,

5 would a swamp mat be a minimally evasive bridge

6 material? Is that what you're characterizing it

7 as?

8 A. I believe so.

9 Q. Is it something that would be

10 installed in the stream or would it be installed

11 over the stream?

12 A. (Howland) It would be --

13 typically, it's either installed over the stream.

14 They might put like a culvert in a bridge-type

15 thing. But it's all going to be site specific.

16 What the stream, how wide it is, what are the

17 characteristics of the stream.

18 So, those are -- you know, we

19 will refer to the D.E.C.'s blue book for stream

20 crossing techniques for those streams that we have

21 identified, that -- that we will be out in. When

22 we can get out in the field, on to these

23 properties, to see what the characteristics of the

24 stream are, then we can propose a stream crossing

25 technique, if needed.


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2 First, we'll seek to come in from

3 both sides to avoid stream crossings. But if we

4 cannot do that, we'll have to propose a stream

5 crossing technique.

6 Q. And Ms. Howland, you're aware of

7 the D.E.C. -- what's known as construction windows?

8 A. Yes, we are. Yes.

9 Q. And -- and the purpose of those

10 is to ensure that the fisheries are protected?

11 A. Correct.

12 Q. Particularly cold water fisheries

13 that support trout.

14 A. We're aware of the limitations.

15 Q. Right. And in response to the

16 question from D.E.C., whether you would be willing

17 to adhere to those construction windows, I believe

18 you said on the assumption -- and this is D.E.C.

19 Ten, question five response. On the assumption

20 that installing matted crossings is not in-stream

21 construction, you would be agreeable to, you know,

22 following construction windows for streams that

23 support trout and trout spawning.

24 A. Correct.

25 Q. But --


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2 A. It --.

3 Q. -- you can see where installing

4 a -- a mat in the stream would -- would actually --

5 you know, a -- a structure in the stream could

6 inhibit the movement of trout in a stream, or could

7 hinder trout during those sensitive time periods?

8 A. And we wouldn't install mats in

9 those type of streams.

10 Q. Okay. So, for trout and trout

11 streams, we wouldn't be looking at the matted

12 crossings?

13 A. No. We would work with the

14 D.E.C. on the appropriate method for crossing those

15 streams.

16 Q. Okay.

17 A. (Ms. Gilstrap) I would like to

18 add that the use of a swamp mat in a stream would

19 probably, typically, be used if the stream was dry

20 during that time of year. So, there's -- there

21 would be no water flowing, but we would still want

22 to protect the -- the bed and bank of the stream,

23 then you could utilize a swamp mat.

24 Q. Okay. But we wouldn't be doing

25 that during the sensitive time periods for trout?


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2 A. Correct.

3 Q. Okay. Turning to wetlands,

4 because we're going to do the confidential

5 questions later, so skipping to wetlands, in the

6 application, table four point ten, and I believe

7 that's on page four forty-eight, indicates that one

8 point eight acres of D.E.C. regulated wetlands

9 would be impacted -- would be within the project

10 corridor and this would be cleared for -- there

11 would be some clearing in that -- in those wetlands

12 for construction. Is that correct?

13 A. (Werth) That's correct.

14 Q. And those -- those wetlands are

15 all forested wetlands, so the -- the clearing would

16 permanently convert them from a forested wetland to

17 a different type of wetland. Is that correct?

18 A. (Ms. Gilstrap) I would like to

19 add that in this document, the -- the database that

20 we looked at, the D.E.C. database that we pulled

21 these wetlands from, they did not assign cover

22 types.

23 A.L.J. STEIN: Please -- please

24 use the microphone.

25 A. (Cont'g.) Did not assign cover


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2 types to these wetlands. And so, we assigned them

3 based on N.W.I., National Wetland Inventory

4 wetlands.

5 So, the -- the cover type would

6 have to be verified in the field or by D.E.C.


8 Q. Okay. But assuming that it is

9 forest -- it is a forested wetland, that would be a

10 permanent conversion to a different wetland type?

11 A. (Werth) Correct.

12 (Howland) Yes. Along just the

13 right-of-way corridor.

14 Q. And I think the application also

15 indicates that there is one point one acres of

16 adjacent area within the project corridor. So

17 that -- that would be the most similarly impacted.

18 A. (Ms. Gilstrap) That -- the

19 adjacent area in the corridor, yes, would be

20 impacted.

21 Q. Okay. And so at this point,

22 other than the wetlands and the existing

23 right-of-way, there's been no field delineations or

24 assessment of the wetlands in the project; right?

25 A. (Howland) There was a field


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2 delineation done where we had access along our

3 existing corridor.

4 Q. Right.

5 A. And that was provided as a

6 supplement. Beyond that, we have not gone on the

7 new right-of-way section to field delineate the

8 wetlands.

9 Q. So, as part of this project, you

10 would be doing that then? You would be delineating

11 the wetlands?

12 A. Correct. The -- for the new

13 right-of-way, we would go out and field delineate

14 the wetlands.

15 Q. And as part of the delineation,

16 you would be looking into the wetland functions,

17 that would be impacted by the project. Is that

18 correct?

19 A. That is correct.

20 Q. You would agree the functions

21 are, you know, what we consider like physical,

22 chemical, and biological processes occurring in and

23 making up the ecosystem of the wetlands, roughly?

24 A. We would evaluate the functions.

25 But I'm not sure if I understood --


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2 Q. If you understood all of that.

3 A. -- all of what you said.

4 Q. Well, you would understand -- you

5 know, what is the -- in other words, do the

6 wetlands provide habitat, what is the -- the water

7 flow, how are they connected to other water

8 systems.

9 But at this point, we can't say

10 for sure what those wetland functions are of the

11 wetlands that would be impacted. Is that true?


13 Q. So, in -- in forested wetland

14 areas, you're going to evaluate the forest habitat

15 and dependent uses and that would be considered

16 part of, you know, the impact that you're going to

17 note in the E.M. and C.P. Is that correct?

18 A. That's correct. We'll evaluate

19 the functions and values of the wetlands.

20 Q. And you would evaluate potential

21 forest fragmentation that might occur from

22 construction of a right-of-way through a forested

23 wetland. Is that correct?

24 A. Yes, we'll evaluate. It'll be a

25 conversion of a forested wetland to a shrub-type


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2 wetland.

3 Q. And you would evaluate any impact

4 on fisheries, you know, particularly where the

5 wetland crossings are in the vicinity of cold water

6 streams that might be impacted by the removal of

7 vegetation? I mean, it --.

8 A. I guess you could put in a

9 specific request of the list of what you would like

10 evaluated in a wetland -- in the wetland --

11 Q. Well, we're -- we're --

12 A. -- delineation.

13 Q. -- we're -- I mean, for example

14 in the Kline Kill area, we're talking about

15 crossing of a C(T.S.) stream in a -- you know, in

16 an area that's a forested wetland, so we want to be

17 sure and have a commitment that there will be an

18 evaluation of that stream crossing and that -- and

19 that wetland crossing, and the habitat in and

20 around that area.

21 A. Before we go out to do any field

22 work, I suggest -- we will have the biologist

23 coordinate with your staff to make sure we get

24 everything --

25 Q. Okay.


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2 A. -- that you would like.

3 Q. Okay. And we appreciate that.

4 We -- that's what we're here for the record,

5 building the record and we appreciate that.

6 As far as access roads in, you

7 know, sensitive environmental areas, do you

8 contemplate constructing access roads? Is it

9 possible you will construct an access road in a

10 wetland area, or over a stream?

11 A. There may be temporary access

12 roads if needed. If there is a wetland we could

13 span, there would be no -- and we could come in

14 from both directions, there would be no need to put

15 a temporary access road. However, if we do need to

16 cross that wetland, we would put in a temporary

17 access road across it.

18 Q. Now, I know you mentioned and I

19 think it was in response to D.P.S. Six, that you

20 talked about the possibility of grading certain

21 areas so you could move equipment through them and

22 leaving it as an unimproved access road. Would

23 wetland crossings be different? You know, access

24 roads and wetlands, would they be different than

25 grading an area and making it as an unimproved


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2 access road?

3 A. Yes. We -- we would not -- all

4 of the wetlands from our preliminary engineering

5 would all be temporary access. We're not proposing

6 permanent access roads for any of the D.E.C.

7 regulated wetlands.

8 (Werth) Right. And it's called

9 out in section four point five point two point

10 three, is Exhibit Four, access roads would be

11 temporary in wetlands.

12 Q. Okay. And they would be -- and

13 then the area would be restored -- would be

14 completely restored to --

15 A. Yeah.

16 Q. -- to the wetland area --

17 A. Yes. They --

18 Q. -- after this?

19 A. -- will be restored --

20 (Howland) That's correct.

21 (Werth) -- to preconstruction --

22 Q. It wouldn't be left --

23 A. -- condition.

24 Q. -- as a graded -- as a graded

25 area or whatever?


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2 A. No.

3 Q. No? Okay.

4 A.L.J. STEIN: Please -- please

5 let the witness finish --

6 MS. WILKINSON: I'm sorry.

7 A.L.J. STEIN: -- their

8 responses. Thank you.


10 Q. You're familiar with D.E.C.'s

11 wetland mitigation policy?

12 A. (Howland) Yes, I am.

13 Q. And you would agree, as part of

14 this, to prepare a wetland mitigation plan?

15 A. Yes, we would.

16 MS. WILKINSON: Your Honor,

17 just -- just for the record, I would like to enter

18 a pre-file D.E.C. exhibit, Freshwater Wetlands

19 Regulation Guidelines on Compensatory Mitigation.

20 A.L.J. STEIN: I will take this

21 as Exhibit Number Forty-eight for identification.

22 Can you give a copy to the

23 reporter, as well?




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2 fifteen-page document -- fourteen-page document

3 entitled Freshwater Wetlands Regulation Guidelines

4 on Compensatory Mitigation, Department of

5 Environmental Conservation.


7 Q. Ms. Howland, is Exhibit -- I

8 believe Forty-seven, which I just handed out, is

9 that what you understand to be the D.E.C. policy of

10 wetlands --?

11 A.L.J. STEIN: This is

12 Forty-eight.


14 Q. Oh, I'm sorry. Forty-eight, is

15 that what you recognize as a D.E.C. policy on

16 wetlands mitigation?

17 A. (Howland) Yes. It's their --

18 your guidelines -- guidelines on wetland --

19 Q. Okay.

20 A. -- mitigation.

21 Q. Thank you.

22 MS. WILKINSON: No further

23 questions at this time, your Honor.

24 A.L.J. STEIN: Thank you very

25 much. *2.


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2 MR. BLOW: I have one follow-up

3 on the wetlands, which might be helpful if we did

4 it in the same area, rather than -- but I can wait,

5 if you want me to.

6 A.L.J. STEIN: No. Go ahead.

7 CROSS EXAMINATION

8 BY MR. BLOW:

9 Q. In -- are you aware of the -- of

10 the wetland weighing standards in -- I believe it's

11 part six sixty-three of D.E.C.'s regulations?

12 A. (Howland) I'm not familiar with

13 that section.

14 Q. Are you aware that there are

15 class one through four wetlands and that different

16 standards apply to when you can cross each of those

17 wetlands?

18 MS. WILKINSON: Your Honor, I'm

19 going to object because this is asking for a legal

20 conclusion and it's --

21 MR. BLOW: No, it's not.

22 MS. WILKINSON: -- it's -- it's

23 ready -- she said she's not familiar with the

24 standards.

25 A. I -- I -- I'm familiar that


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1 Howland/Gilstrap/Werth - Cross - Blow

2 there's four classes of wetlands. As far as when

3 they can be crossed, I'm not familiar with that.

4 BY MR. BLOW: (Cont'g.)

5 Q. So, in your -- in the routing of

6 this -- of -- of -- in -- in deciding upon a route

7 for the project, are you saying that you did not

8 look at the wetland weighing standards? You did

9 not apply them in -- in figuring out the conditions

10 under which the wetlands can be crossed?

11 A. (Howland) The D.E.C. wetlands

12 that would be in the project right-of-way, we

13 identified the classes of those wetlands. I'm

14 sorry. I just lost my train of thought.

15 Q. All right. You -- you identified

16 the classes of the wetlands to be crossed?

17 A. Yes, which is --.

18 Q. But you're not aware that there

19 are -- that -- that associated with each of the

20 classes, there are characteristics and -- and

21 conditions in the wetland weighing standards that

22 specify when those condition -- when those wetlands

23 can be crossed, or the conditions under which those

24 wetlands can be crossed? Is -- is that correct?

25 MR. METCALFE: I'm going to


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2 object. I think the witnesses have testified only

3 that they're not familiar with the D.E.C.

4 regulations. And it sounds like Mr. Blow is

5 turning that in to a broader scope than what they

6 testified to.

7 A.L.J. STEIN: Can you rephrase

8 the question?

9 MR. BLOW: Well, I -- if they're

10 not aware of it, then I think they have a bigger

11 problem. So I -- I'm -- I think --.

12 MR. METCALFE: Well, they may not

13 be aware of it by citation and that might have been

14 what was --.


16 Q. Well, I don't have the -- I don't

17 have the wetland weighing standards in my head, as

18 to -- there are certain wetland -- if -- if I

19 remember correctly, there are certain standards

20 that -- a -- a class one wetland can only be

21 crossed if there's no other reasonable alternative.

22 I believe that's it.

23 Ms. Wilkinson could help me out

24 here, but there are different standards for when

25 a -- a class two wetland weighing -- a class two


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2 wetland can only be crossed if a -- certain other

3 characteristics apply to it.

4 As -- as you get down to a class

5 four wetland, it's -- it can be crossed pretty

6 much -- you know, there's -- there's -- there are

7 less stringent standards as to when a wetland can

8 be crossed, depending on which class you're --

9 you're talking about, whether you go from class

10 one, two, three, and four.

11 Are you aware of those -- that

12 there are -- are you aware that there are less

13 stringent standards as you proceed for -- for --

14 when wetlands can be crossed, as you proceed from

15 class one through class four?

16 MS. WILKINSON: Your Honor, Mr.

17 Metcalfe had an objection and I echo his objection

18 because I think the weighing and balancing

19 standards in regulation go beyond the expertise of

20 this particular panel, because they take into

21 account social and economic and other

22 considerations. It's a very broad --

23 MR. BLOW: And I would ask --

24 MS. WILKINSON: -- way of

25 balancing.


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2 MR. BLOW: -- then I would ask

3 Mr. Metcalfe to tell me which panel I can ask this

4 question to, because this -- this line of

5 questioning goes to whether, in the routing of this

6 line, state law is being applied. The wetland

7 weighing standards are state law, under Section

8 126.1(f) of the Public Service Law, State Law must

9 be complied with.

10 MS. WILKINSON: I agree, Mr.

11 Blow. But I think that --

12 MR. BLOW: Right. So, I don't --

13 MS. WILKINSON: -- I think the

14 condition is going to be --

15 MR. BLOW: -- I'm not sure why

16 you're --

17 MS. WILKINSON: -- applying it.

18 A.L.J. STEIN: Wait.

19 MR. BLOW: -- objecting to my

20 line of question.

21 MS. WILKINSON: Because the

22 condition --.

23 A.L.J. STEIN: Wait -- wait --

24 wait -- wait. Order in the court, please. One

25 person at a time.


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2 Let me follow on Mr. Blow's

3 suggestion and check with Mr. Metcalfe as to --

4 will there be a subsequent panel that is qualified

5 to respond to these questions?

6 MR. METCALFE: Well, I don't know

7 that this panel is not qualified to respond, your

8 Honor.

9 I took it that his initial

10 question was focused on the citation for the D.E.C.

11 regulations. And their answer was there were --

12 they were not familiar with that citation.

13 He -- if he were to ask questions

14 about their familiar -- familiarity with the

15 weighing standards themselves and their application

16 here, that might be more helpful.

17 MR. BLOW: I believe I did and I

18 believe that the only person that objected to that

19 line was Ms. Wilkinson.

20 MR. METCALFE: And I didn't

21 object to that line.

22 MR. BLOW: Thank you.

23 A.L.J. STEIN: And as -- since

24 it's Mr. Metcalfe's witness, I think it's up to him

25 to make the objections.


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2 So, if you could restate the

3 questions along the lines Mr. Metcalfe just

4 indicated, you can put it back to this panel.

5 MR. BLOW: Sure.


7 Q. Are you aware, that as you go

8 from a class one wetland to a class four wetland,

9 the -- the reasons -- the allowable reasons for

10 crossing or the -- or the characteristics, what you

11 have to show in order to cross a wetland changes

12 and becomes less stringent, as you move from class

13 one to class four?

14 A. (Ms. Gilstrap) I am aware that

15 the class -- as you proceed from class one to class

16 four, that the wetlands become less valuable, that

17 class one wetlands are -- are the most valuable

18 wetlands, yes.

19 Q. And are you aware that the

20 allowable reasons or characteristics for crossing,

21 when -- when you decide whether you need to cross a

22 wetland, the showing that you have to make for a

23 class one wetland is different and higher than the

24 cross -- than the -- than the showing that one has

25 to make in crossing a class four wetland?


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2 A. I am aware that the -- the

3 standards and protocol for class -- for crossing

4 class one wetlands are more stringent than crossing

5 class four wetlands.

6 Q. And in the routing of the -- of

7 the -- of the -- proposed routing of the project,

8 did -- did you -- do you believe that the

9 characteristics and the reasons and the showings

10 that are required to cross the various wetlands

11 have been made in your application?

12 A. We -- we have noted in our

13 application the classes of each of the wetlands --

14 D.E.C. wetlands that are located in the project

15 corridor.

16 There is one class three wetland

17 and three class two wetlands, located inside the

18 project right-of-way.

19 MR. BLOW: I think I'll leave it

20 there.


22 For the Department of Agriculture and Markets?

23 MR. CUDDEBACK: Good morning,

24 your Honor.

25 A.L.J. STEIN: You need a


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2 microphone.

3 MR. CUDDEBACK: Thank you. Good

4 morning, your Honor.

5 We're proposing to enter three exhibits into

6 evidence. The first would be an information

7 request and response, D.P.S. Nine, requested April

8 19th, 2013, and replied May the 2nd, 2013.


10 one-page document?

11 MR. CUDDEBACK: It is.

12 A.L.J. STEIN: And --

13 MR. CUDDEBACK: Yes.

14 A.L.J. STEIN: -- we will take it

15 as Exhibit Number Forty-nine, for identification.

16 MR. CUDDEBACK: Okay. And the

17 second exhibit is also an information request,

18 D.P.S. Four, dated April 19th and responded May

19 2nd, 2013.

20 A.L.J. STEIN: Just a second.

21 And this is a three-page document?

22 MR. CUDDEBACK: It's a three-page

23 document, with one -- four attachments.

24 A.L.J. STEIN: And we'll take

25 that as Exhibit Number Fifty for identification.


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2 MR. CUDDEBACK: Thank you. And

3 the third document is also an information request

4 and response, D.P.S. Number Thirty-nine, requested

5 August 29th, 2013, and replied September 13th,

6 2013.

7 A.L.J. STEIN: And that will be

8 marked as Exhibit Number Fifty-one.

9 MR. CUDDEBACK: Yes. That's two

10 pages and one attachment.


12 MR. CUDDEBACK: Thank you.


14 BY MR. CUDDEBACK:

15 Q. Good morning. I want to direct

16 your attention to D.P.S. Nine, which has been

17 marked as Exhibit Forty-nine. Are you familiar

18 with that?

19 A. (Werth) Yes.

20 Q. In that exhibit, you indicated

21 that in creating the proposed transmission route

22 and switching station location, NYSEG has attempted

23 to balance impacts to open space, agricultural

24 fields and forested lands, to maximize -- to the

25 maximum extent practical. Is that true?


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1 Howland/Gilstrap/Werth - Cross - Cuddeback

2 A. Yes.

3 Q. Okay. You also had indicated

4 that NYSEG has maximized the use of field

5 boundaries and property boundaries, and that by

6 citing facility along natural corridors, such as

7 fields and property boundaries, the line avoids

8 bisecting properties and open spaces, while also

9 balancing impacts to the forest and agricultural

10 resources. Is that correct?

11 A. Yes.

12 Q. Please, if you would, turn your

13 attention to D.P.S. -- to the response to D.P.S.'s

14 information request, Number Four, which has been

15 marked as Exhibit Fifty.

16 If you go to the back of that

17 document, to the attachment, the last attachment,

18 which is a map labeled attachment three to that --

19 to your response, do you see the map?

20 A. Yes.

21 (Howland) Yes.

22 Q. So, the map appears to show the

23 proposed site for the Ghent switching station and a

24 portion of the National Grid trunk fifteen

25 extension loops. Is that correct?


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2 A. (Werth) Yes.

3 Q. Looking at that map, it appears

4 that the switching station and extension loops are

5 located entirely on an agricultural field. Is that

6 correct?

7 A. Within the boundaries of this

8 map, yes.

9 Q. And in fact, it appears that the

10 extension loops bisect that particular agricultural

11 field. Is that correct?

12 A. They're located towards the

13 northern boundary of the field.

14 Q. Okay. According to NYSEG's

15 application, Exhibit Four Point Two Point One --

16 A. Okay.

17 Q. -- it states that the following

18 construction -- following construction of the

19 switching station, agricultural activities will not

20 resume on the site. Is that still accurate?

21 A. Within the boundaries of the --

22 of the switching station, yes.

23 Q. And the extension loop -- loops?

24 A. No. Underneath the transmission

25 lines, agricultural use will be permitted.


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2 Q. Okay. Yesterday, you mentioned,

3 I think, in your testimony, that the -- the

4 switching station would take roughly six percent of

5 the agricultural field --

6 A. Yes.

7 Q. -- operation? Thank you. Now,

8 in that calculation, do you -- did you take into

9 account any structures on the field?

10 A. No. There was not the -- the

11 transmission lines. That was the switching station

12 site.

13 Q. Okay. And did that calculation

14 also take into account any access roads?

15 A. The access road has not been

16 designed, so we don't know the exact impact of

17 that.

18 Q. So do we know if construction

19 will -- construction of the switching station will

20 affect a larger area than the two-acre footprint of

21 that site?

22 A. If construction will?

23 Q. Would -- would the siting --

24 well, withdrawn.

25 Will the construction activities


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2 affect a larger area than the two-acre footprint on

3 that site?

4 MR. METCALFE: Clarification.

5 Construction activities for the switching station

6 or the transmission line, or both?

7 BY MR. CUDDEBACK: (Cont'g.)

8 Q. Concerning the switching station.

9 A. (Werth) There may be additional

10 areas required for construction. I believe that

11 would be a better question directed towards the

12 engineers.

13 Q. Okay. Thank you.

14 A. (Howland) There should be a

15 temporary impact on construction.

16 A.L.J. STEIN: Can you repeat

17 your answer with the microphone?

18 A. (Cont'g.) That would be -- I

19 just noted if it was beyond the footprint of the

20 Ghent -- proposed Ghent switching station, that

21 would be a temporary impact for -- during

22 construction only.

23 BY MR. CUDDEBACK: (Cont'g.)

24 Q. So, there may be a need for

25 additional area -- a construction staging area


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2 then, in relation to the construction of the

3 switching station here, as shown as on this map?

4 A. (Howland) There may be need for

5 additional temporary impacts for -- along with in

6 and out of that, to construct a station, I don't

7 believe we would put in a staging area. The

8 staging areas would probably be -- we would look

9 for other areas -- you know, that's what they --

10 you know, when we're bringing equipment in, you

11 know there may be a temporary spot for equipment

12 specific to the Ghent switching station, but we are

13 not proposing that that area will be a staging area

14 for the entire construction activities.

15 Q. Okay. Thank you. Do you know if

16 NYSEG is proposing to strip and then stockpile

17 topsoil from the areas affected by the construction

18 of the switching station and access road?

19 A. That hasn't been determined yet.

20 Q. Okay. When -- when -- when is

21 that normally determined?

22 A. During the preparation of

23 environmental management and construction plan.

24 Q. Okay. Thank you. Typically,

25 when you do strip and stockpile the topsoil, where


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2 do you -- where do you put that in temporary

3 storage?

4 A. If there's -- I'm having trouble

5 with your question because I look at when we strip

6 topsoil, it's for a different type of facility.

7 Q. Okay.

8 A. Now, this is going to be a

9 permanent facility, so you know, that has not been

10 determined.

11 Q. Okay. Thank you. So, it's --

12 it's conceivable then that the stockpiled topsoil

transcript for evidentiary hearing on 09.18.2013

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