NYPA's Answer to the town of Amherst

THE POWER AUTHORITY OF THE STATE OF NEW YORK’S
ANSWER TO THE TOWN OF AMHERST’S
LATE-FILED REQUEST FOR AN ADDITIONAL STUDY

Pursuant to Section 4.32(b)(8) of the Federal Energy Regulatory Commission’s (FERC or Commission) Rules and Regulations, 18 C.F.R. § 4.32(b)(8), the Power Authority of the State of New York (Power Authority) hereby submits its answer to the Town of Amherst’s (Amherst) late-filed additional study request. Amherst’s request is procedurally deficient, fails to demonstrate good cause sufficient to warrant additional study expenditures, and proposes a study that would no t contribute information necessary to the relicensing process. Therefore, the Power Authority respectfully requests that the Commission reject Amherst’s request.

I. BACKGROUND

On August 18, 2005, the Power Authority filed with the Commission an Application for New License (Application) for the Niagara Power Project (Project). Pursuant to 18 C.F.R. § 4.32(b)(6), the Power Authority subsequently published notice of its Application in the The Buffalo News and The Niagara Gazette.^1[1]As required by the Commission’s regulations, these notices specifically stated that “[a]ll such [additional] study requests should be filed on or before Monday, October 17, 2005.”² The October 17, 2005 [2]date was established in accordance with the Commission’s regulations which, among other things, require that additional study requests be filed with the Commission “not later than 60 days after the application is filed . . .”[3]

On October 25, 2005, eight days out-of-time, Amherst filed a one-paragraph letter and various attachments with the Commission. Amherst seeks a Commission order directing the Power Authority to conduct a five-year low-flow monitoring program for Tonawanda and Ellicott Creeks – at a cost of $325,000 – to address issues associated with its wastewater and storm discharges.[4] As support for its study, Amherst asserts that “[w]e are requesting the Power Authority provide these funds to expand the NYSDEC knowledge base on low flow conditions in Tonawanda Creek & Ellicott Creek.”[5] The New York State Department of Environmental Conservation (DEC), which has executed a settlement agreement with the Power Authority in this proceeding, has not made a similar request to the Commission or the Power Authority. [6]

II. POWER AUTHORITY’S REQUEST TO REJECT THE ADDITIONAL STUDY REQUEST

A. The Town of Amherst’s Request is Procedurally Deficient

The Power Authority requests that the Commission reject Amherst’s additional study request because it: (1) is untimely; (2) fails to meet the Commission’s criteria for additional studies; and (3) offers no justification for why the request was not made during the Niagara Power Project’s ALP scoping process.

The Commission’s regulations provide clear guidance on the process for filing additional study requests. [7]Pursuant to these regulations, interested parties were required to file such requests on October 17, 2005 or sixty days after the Power Authority filed its license application. Amherst was aware of this deadline as evidenced by the fact that it submitted copies of the Power Authority’s public notice as it appeared in the The Buffalo News;[8] the town, however, filed its study request eight days out-of-time. Consisting simply of a one-paragraph letter with several miscellaneous attachments, Amherst offered no explanation for the delay and failed to demonstrate good cause for why its filing should nonetheless be considered by the Commission.

The Commission’s filing deadlines have been established to provide procedural certainty and predictability for all participants in the licensing process. At this stage of the proceeding, where the Commission’s regulations and orders will dictate the schedule for processing the Power Authority’s application (and, by extension, the implementation of the Power Authority’s settlement commitments), adherence to the Commission’s procedural regulations is necessary to ensure a timely and orderly review of the license application. By rejecting Amherst’s filing as untimely, the Commission will provide notice to all parties that future filings must conform to FERC’s deadlines in order to be considered by the Commission.

Amherst’s pleading also fails to comport with the Commission’s study request criteria. The Commission’s regulations require that:

For any such additional study request, the requester must describe the recommended study and the basis for the request in detail, including who should conduct and participate in the study, its methodology and objectives, whether the recommended study methods are generally accepted in the Scientific community, how the study and information sought will be useful in furthering the resource goals that are affected by the proposed facilities, and approximately how long the study will take to complete, and must explain why the study objectives cannot be achieved using the data already available.[9]

In this case, Amherst’s filing lacks the detailed information necessary to support consideration of an additional study request. The filing is devoid of any substantive discussion of the appropriate methodology for, and objectives of, the proposed study. The request also fails to provide the Commission with the requisite amount of detail to clearly establish a relationship between the operation of the Niagara Project and the affected resources. In fact, Amherst’s supporting documentation acknowledges that “there are many activities that take place influencing water levels in Tonawanda and Ellicott Creek . . ..”[10]

Finally, Amherst provides no justification for why this particular study request was not made during the pre-consultation process. Through the ALP, the Power Authority engaged in extensive public scoping; this well-publicized process, in which over 150 organizations and individuals participated, resulted in over 40 studies. These studies included a number of efforts designed to gather data on water level fluctuations in the Niagara River and its associated tributaries. The scope and level of effort for the water level studies were agreed to by the ALP stakeholders, including DEC and other state and federal resource agencies. Amherst should have availed itself of the opportunity to participate in the relicensing process at that time; instead, Amherst submitted a written request to the Power Authority requesting that the town be taken off the ALP mailing list and indicating that they would not participate in the ALP process.[11] Accordingly, to submit a study request at this late date, without good cause, is contrary to the objectives of the Commission’s alternative licensing procedures and fundamentally unfair to the ALP participants who devoted significant resources to defining and implementing the Power Authority’s relicensing studies.

B. The Requested Study Will Not Inform

The Commission’s Analysis of the Niagara Project

Assuming arguendo, that the Commission accepts Amherst’s filing despite its procedural infirmities, the Power Authority requests that the Commission nonetheless reject the additional study request. The environmental record in this proceeding, which consists of all of the stakeholder-scoped studies and the applicant prepared environmental analysis, is more than sufficient for the Commission to evaluate the Power Authority’s pending license application. Moreover, the study requested by Amherst would not contribute information necessary – or helpful – to the Commission’s environmental analysis. As Amherst acknowledges, there are a number of influences on water level fluctuations in Tonawanda and Ellicott Creeks; further, the relicensing studies demonstrate that Project operations are a relatively negligible contributory factor to these fluctuations. Given the attenuated Project impacts, and the fact that the proposed study would address influences beyond the Power Authority’s control, there is no justification for requiring the Power Authority to expend an additional $325,000.

1. Background on Relevant the Power Authority Studies

To support its license application and the development of the applicant prepared environmental assessment, the Power Authority conducted studies to determine the magnitude and geographic extent of Niagara River water level fluctuations influencing Tonawanda and Ellicott Creeks. From the data gathered from these studies, the Power Authority undertook additional resource studies to, among other things, identify Project impacts on those two creeks.

Specifically, the Power Authority documented the extent of water level fluctuation in these two creeks caused by all Niagara River sources (e.g., flow surges from Lake Erie, wind, ice, and power operations) through the use of water level gages on the Niagara River as well as Tonawanda Creek and Ellicott Creek.^12[12] These water level measurements indicated that fluctuations in Tonawanda and Ellicott Creeks are on the order of 0.5 feet.[13] Analysis of existing stream profiles for Tonawanda and Ellicott Creeks[14] indicate that both streams are extremely flat due to channel modifications conducted as part of the New York State Barge Canal System (Tonawanda Creek) and flood control measures implemented by parties other than the Power Authority (Ellicott Creek). These profiles were augmented by a field reconnaissance survey to determine the upstream extent of each creek that could, at a maximum, be affected by median water level in the Niagara River.

Together, the profiles and the field-verified presence of hydraulic controls (i.e. riffles) confirm that the maximum extent of Tonawanda Creek that could be influenced by median Niagara River water level is 13.7 miles upstream from the mouth and the maximum extent of Ellicott Creek is 7 miles upstream from the mouth. Based on this analysis, the area of study for other FERC licensing studies addressing water quality, shoreline erosion, aquatic habitat, rare, threatened and endangered species, as well as historic and archaeological resources, was defined. [15]

2. Existing Study Data Demonstrate No Project Impacts

As part of its data collection efforts, the Power Authority established two water quality monitoring stations on Tonawanda Creek: one at the mouth of the Niagara River and one located 4 miles upstream from the mouth. Three other stations were established on Ellicott Creek, one at the mouth of Tonawanda Creek, one located one mile upstream from the mouth, and one located 3.3 miles upstream from the mouth. The most upstream stations on both creeks are located in the Town of Amherst. The extensive data produced by these stations evidence no adverse impact on water quality from Project operations.[16]

Further, the data suggests that the Power Authority does not have any adverse effect on the waste assimilative capacity of either Tonawanda or Ellicott Creeks because the Project does not significantly affect streamflow or water velocity.[17] First, the Niagara River has no effect on the flow of Ellicott Creek because that flow is governed by the contributing drainage area of the creek itself. While the Niagara River can affect flow in Tonawanda Creek during the navigation season, fluctuations in Niagara River water levels are caused by a number of natural and man-made sources, including storm surges from Lake Erie, precipitation, wave action, and U.S. and Canadian power operations.[18]Moreover, under median conditions, fluctuations are only on an order of 0.5 feet – a level of fluctuation that has minimal impact on total flow in Tonawanda Creek.[19] Similarly, this level of fluctuation has a negligible impact on velocity in these two creeks. [20]

3. No Justification for the Additional Study

As data from existing relicensing studies demonstrate, Project operations do not have an adverse impact on Tonawanda and Ellicott Creeks. Moreover, water level fluctuations associated with these creeks are caused by a number of factors; Project operations are merely a small contributory factor to the fluctuations that occur near the Town of Amherst. Accordingly, because: (1) the environmental record is sufficient for purposes of evaluating the Project and the proposed study would not contribute information necessary to the relicensing of the Project; and (2) the requested study addresses potential impacts associated with sources other than Project operations, the Commission should deny Amherst’s request for additional monitoring of Tonawanda and Ellicott Creeks.

WHEREFORE, for the foregoing reasons, the Power Authority respectfully requests that the Commission reject the Town of Amherst’s additional study request.

Respectfully submitted,

David E. Blabey

Executive Vice President, Secretary

and General Counsel

New York Power Authority

30 South Pearl Street

Albany, NY 12207-3425

Telephone: (518) 433-6724

Facsimile: (518) 433-6781

__/s/ Jay Ryan_____________________

Jay Ryan

Van Ness Feldman, P.C.

Attorneys at Law

1050 Thomas Jefferson Street, N.W.

Seventh Floor

Washington, DC 20007-3877

Telephone: (202) 298-1800

Facsimile: (202) 338-2416

Counsel to the New York Power Authority

DATED: November 21, 2005

[1] The Power Authority’s notice of its Application ran in The Niagara Gazette from August 26^th through August 28^th 2005. The notice also ran in The Buffalo News on August 28 and August 29, 2005.

[2] See Power Authority’s Proof of Newspaper Notice, Project No. 2216-066 (filed with the Commission on September 14, 2005).

[3] 18 C.F.R. § 4.32(b)(7).

[4] See e.g., Memo of Paul M. Bowers (undated), submitted as an attachment to Amherst’s filing (stating that unanswered questions remain about how the Power Authority might affect “the Town of Amherst waterways and permitting of its Water Pollution Control Facility”.

[5] Id.

[6] The Power Authority filed an Offer of Settlement filed with the Commission on August 19, 2005. The Offer of Settlement included a “Relicensing Settlement Agreement Addressing New License Terms and Conditions” which was executed by DEC and a number of other regulatory agencies and environmental organizations

[7] 18 C.F.R. § 4.32(b)(7)

[8] As part of the attachments submitted to the Commission, Amherst has a handwritten note on the copy of the Notice that suggests the Power Authority Notice appeared on October 11, 2005. This is misleading. The Power Authority’s public notices were published in August as noted in its submission to the Commission on September 14, 2005. Supra note 2

[9] 18 C.F.R. § 4.32(b)(7). Under the Commission’s new Integrated License Process regulations, study requests must also, inter alia, “[d]escribe considerations of level of effort and cost, as applicable . . ..” 18 C.F.R. § 5.9(b)(7).

[10] Letter from Paul E. Bowers to State Senator Mary Lou Rath submitted as an attachment to Amherst’s filing (September 27, 2005).

[11] E-mail from J. Molnar (Amherst) to Niagara Relicensing e-mail address operated by URS Corporation (January 27, 2003).

[12] These studies are summarized in the PDEA and topic specific study reports were submitted as part of the project record at FERC. See URS Corporation, Gomez and Sullivan Engineers, P.C., and E/PRO Engineering & Environmental Consulting, LLC. 2005. Niagara River Water level and Flow Fluctuation Study, prep. for the New York Power Authority; URS Corporation and Gomez and Sullivan Engineers, P.C., 2005. Surface Water Quality of the Niagara River and its U.S. Tributaries, prep. for the New York Power Authority; URS Corporation, Gomez and Sullivan Engineers, P.C., and E/PRO Engineering & Environmental Consulting, LLC. 2005. Upper Niagara River Tributary Backwater Study. prep. for the New York Power Authority

[13] The median water level fluctuation in the Niagara River at the mouth of Tonawanda and Ellicott Creek is

0.55 feet during the tourist season and 0.43 feet during the non-tourist season.

[14] Existing stream profiles were taken from Flood Insurance Studies.

[15] These studies are summarized in the PDEA and topic specific study reports were submitted as part of the project record at FERC. See Gomez and Sullivan Engineers, P.C. and E/PRO Engineering & Environmental Consulting, LLC. 2005. Mapping of Aquatic and Riparian Habitats of Ellicott and Tonawanda Creeks, and Tributaries to Tonawanda Creek, Prep. for the New York Power Authority; Panamerican Consultants, Inc., URS Corporation, and E/PRO Engineering & Environmental Consulting, LLC. 2005. Phase I Cultural Resources Investigation. Prep for the New York Power Authority; Riveredge Associates, LLC. 2005. Surveys of Winter Habitat for Native Mussels in Niagara River Tributaries, prep. for the New York Power Authority; Riveredge Associates, LLC. 2005 Assessment of Potential Effects of Water level and Flow Fluctuations on Rare, Threatened, and Endangered Species of the Upper Niagara River Tributaries. Prep. for the New York Power Authority; URS Corporation and Gomez and Sullivan Engineers, P.C., 2005. Surface Water Quality of the Niagara River and its U.S. Tributaries, prep. for the New York Power Authority; W.F. Baird & Associates Coastal Engineers Ltd. 2005. Shoreline Erosion and Sedimentation Assessment Study Upstream and Downstream of the Power Project. Prep for the New York Power Authority

[16] For example, on Tonawanda Creek dissolved oxygen concentrations varied between 6.9 and 11 mg/l, meeting NYS water quality standards for this reach. For Ellicott Creek dissolved oxygen met NYS water quality standards under dry weather conditions. For wet weather conditions, dissolved oxygen fell below the NYS instantaneous standard of 5 mg/l (once at the station at the mouth and once at the station one mile upstream of the mouth). In addition to dissolved oxygen concentration, the Power Authority monitored turbidity in both creeks. In general, the turbidity in Tonawanda Creek was almost always lower at the station near the mouth than the one 4 miles upstream, regardless of the weather. This is consistent with turbidity measurements at the NYSDEC station 20 miles upstream of the mouth which are higher and indicative that upstream land use may be contributing sediment and pollutants to the stream. Like Tonawanda Creek, turbidity measurements at the mouth are less than those upstream, the result of mixing with less turbid Niagara River water. The fact that dissolved oxygen levels were always above NYS standards during dry weather events and that turbidity levels in the creeks are lower with closer proximity to the Niagara River would indicate that the Niagara Project has no direct impact on dissolved oxygen levels or turbidity levels in the stream.

[17] Waste assimilation models are used to determine the effect of parameters such as biochemical oxygen demand, total suspended solids and phosphorus on the quality of a stream and the resulting reduction in loadings a discharger (Town of Amherst) must make in order to comply with water quality standards. These models simulate a number of parameters in a stream. The parameters of interest that the Niagara Project could potentially affect would be flow and velocity.

[18] The NYS Barge Canal and Tonawanda Creek up to 11.6 miles upstream of the mouth are the same water body. During the navigation season when the guard gate at Lockport is opened, the flow in Tonawanda Creek is reversed, flowing from the Niagara River to the Barge Canal system via gravity since the invert of the guard gate is lower than the Niagara River water level. Therefore, fluctuations in the Niagara River water levels affect the quantity of flow in the Tonawanda Creek/Barge Canal System.

[19] This level of fluctuation is readily quantifiable by the Town of Amherst via consultation with the New York State Canal Corporation

[20] From a velocity perspective, the Amherst plant discharges into a section of Tonawanda Creek that is approximately 17 feet deep. The Wastewater Treatment Plant discharge is located on Tonawanda Creek 6 miles upstream from the mouth. This section of stream is part of the NYS Barge Canal system. For a flow of 1100 cfs (the diversion flow from the Niagara River to the Barge Canal), the 0.5 feet daily water level fluctuation from all sources changes the velocity by an insignificant amount from 0.158 fps to 0.164 fps. Similarly, Ellicott Creek throughout the majority of Amherst, is in excess of 8 feet deep and the changes in velocity due to water level fluctuation are small. For an average August flow of 74.6 cfs, the 0.5 feet daily water level fluctuation from all sources changes velocities from 0.096 fps to 0.103 fps