The East Hampton Town Trustees unanimously approved signing on to the joint proposal submitted two weeks ago by Orsted U.S. Offshore Wind and Eversource Energy to the New York State Public Service Commission in support of the proposed South Fork Wind farm, to be situated approximate-ly 35 miles off Montauk Point.
Before the vote during their virtual meeting on Monday, the trustees, in consultation with outside counsel retained for navigating their role in the wind farm proposal, emphasized that the approval they were codifying supports "only those provisions that address the public need for the project and the construction, operation, maintenance, repair, and decommissioning of those portions of the project that are proposed to be located within" trustee jurisdiction, specifically the ocean beach at the end of Beach Lane in Wainscott, where the developers intend to land the wind farm's export cable.
By signing on to the joint proposal, which details elements of the project from construction to its decommissioning 25 years later, the trustees are not addressing issues such as the wind farm's impact on utility rates, for example, said Daniel Spitzer of Hodgson Russ L.L.C., counsel to the trustees. "You're not offering an opinion that New York State needs this particular wind farm," he said. That determination, rather, is the role of the Public Service Commission, which in order for the project to proceed must issue a Certificate of Environmental Compatibility and Public Need under Article VII of the Public Service Law.
The Article VII review pertains to the portion of the project that would be situated on state land or in state waterways. Seventy-eight interested parties, the trustees among them, are involved in settlement negotiations before the commission that began in November. The developers assert that the 15-turbine installation will power 70,000 residences of an average size with clean electricity. Opponents include many residents of Wainscott, who object to the cable landing in their hamlet, and commercial fishermen, who assert multiple threats to their livelihood.
The joint proposal, Mr. Spitzer told the trustees, is a list of conditions attached to the Certificate of Environmental Compatibility and Public Need, which he likened to a permit. The conditions were derived during the settlement process that began in November, which under state law is a confidential process.
Among the conditions the trustees considered most important is the project's potential impact on commercial and recreational fishing as well as marine habitat in the affected areas. "We spent a lot of time developing certificate conditions that ensure that they will be adequately studied," said Mila Buckner, also of Hodgson Russ, "and that parties will come back together to review those study results and talk about any mitigation measures, should there be an impact from the project on the surrounding community."
Another condition is scrutiny of the electromagnetic field emanating from the export cable throughout the life of the project. Fishermen have raised the concern that such a field can repel some fish species, altering migration patterns, while attracting others.
The trustees also examined the risk of the cable's exposure, such as occurred at Block Island, where the nation's first offshore wind farm is situated. The trustees insist that the cable will be buried 30 feet below the beach and at a depth greater than nine feet in the nearshore area, "which greatly reduces the risk that the cable will ever be exposed," Ms. Buckner said, as well as additional measures for examining the cable after any occurrence, such as a significant storm, that could result in its exposure. The developers would have to pay for any reburial of the cable, as well as the removal of the installation upon decommissioning.
"What you're voting on are proposed conditions to a permit," Mr. Spitzer said. "That does not mean these will be the conditions to the permit. It's expected that, at least, the residents of Wainscott will seek other conditions, mostly an alternative route." A group called Citizens for the Preservation of Wainscott, formed in the wake of the developers' identification of that hamlet as the preferred cable landing site, advocate another site, such as state-owned land at Hither Hills in Montauk.
"There are others who may seek other conditions," Mr. Spitzer added. "We don't know if state agencies are seeking any conditions at this point." He described the joint proposal as the "consensus of the group," but "by no means did everybody join that consensus on every condition."
The trustees, like the town, have yet to formally approve an easement or lease allowing the developers to install the cable under the beach and on a subterranean path to a Long Island Power Authority substation in East Hampton, but a majority of the town board has signaled conditional support, unveiling last month details of an almost $29-million host community agreement the town and trustees would share in exchange for permitting the cable installation in the town.
"It's when you vote on the lease that you're supporting or not supporting the project," Mr. Spitzer told the trustees, "because that's when you're letting somebody on your land."
Testimony is to be submitted to the Public Service Commission by Friday, Oct. 9. "We expect testimony from Wainscott to oppose the Beach Lane alternative," Mr. Spitzer said, "although they haven't actually presented any evidence as to an alternative that's environmentally different, which is what the state looks at."
Once testimony is in, an administrative law judge, following the submission of rebuttal testimony, will decide whether a hearing is required. "Usually, there is a hearing if there's an issue of fact raised," Mr. Spitzer said. "I would suspect that on a number of things there will be motions to strike the issues that are raised. If those are not successful, you have an evidentiary hearing starting Dec. 2."