An arbitrary cutoff date in December for comments on Alle-Catt Wind Energy’s application for a 340-megawatt wind farm could mean more-restrictive wind laws adopted this year in Farmersville and Freedom won’t apply.

Examiners for the New York State Board on Electric Generation Siting and the Environment recommended last week that Alle-Catt Wind Energy LLC be permitted to construct and operate the proposed Alle-Catt Wind Farm — with conditions.

Gary Abraham, an attorney for residents of the two towns seeking more protective laws than ones passed earlier by the Farmersville and Freedom town boards, agreed the recommendation to the siting board was a “gut punch” for opponents.

Changes after the hearing closes won’t be considered in the recommendations to the Siting Board.

It isn’t the last word, however, Abraham pointed out. The Siting Board isn’t due to make a final decision until May. Attorneys must submit briefs by March 18 for any errors or inconsistencies in the recommendations. There will be another round of briefs after that.

“I don’t think it’s as bad as it could have been,” said Abraham of the recommendations.

The project, proposed nearly three years ago by Invenergy, a Chicago-based alternative energy company, would stretch across five towns in three counties; Farmersville, Freedom, Rushford, Centerville and Arcade. It would involve up to 117 turbines and miles of underground cable spread over 27,000 acres.

Supporters point to more than $7 million in annual lease payments, host community payments and payments in lieu of taxes. Up to 400 workers would be on the project during peak construction season. Average monthly employment would be around 250.

The recommendations are subject to responses from attorneys like Abraham, who will file briefs to point out inconsistencies and errors in the 170-page document.

Abraham pointed out that the examiners, two administrative law judges from the state Department of Public Service and one from the state Department of Environmental Conservation, state that the 2007 Freedom wind law is in effect.

That means turbine heights in Freedom are capped at 450 feet, not the 600 feet that Alle-Catt was seeking for its turbines.

Alle-Catt had sought a ruling that the town’s 2019 wind law was in effect after a state Supreme Court judge ruled the 2018 wind law had not been legally approved.

Abraham was disappointed that the examiners did not accept the 2019 wind law the Farmersville Town Board adopted. That was introduced in January and passed by a 3-2 vote in February by a board majority elected in November to overturn the 2019 wind law.

A civic group, Farmersville United, has challenged the 2019 Farmersville wind law on similar grounds as the Freedom challenge, that it was not legally approved. The new Farmersville Town Board agreed to void the law, which was challenged in court by Farmersville United.

Abraham said the Siting Board will also look at the briefs where attorneys challenge the recommendations. He said the Siting Board has found in the past that town boards are in the best position to understand residents sensibilities.

In both Farmersville and Freedom, voters flipped their respective town boards after a vigorous campaign. Instead of two pro-wind boards, the new majorities sought more protective wind laws for residents.

“The election changed things,” Abrahams said.

Further complicating things are Gov. Andrew Cuomo’s actions to speed up construction of wind and solar energy projects. “Will they throw out Article 10 in the (state) budget bill?” Abraham asked.

That could prompt Alle-Catt to drop out of the Article 10 process and apply under the new procedures that will give the state a much stronger voice in permitting the projects at the cost of local governments.

“The Association of Towns has come out strongly against it,” Abraham said. “There’s a firestorm brewing.”

Invenergy is looking at other deadlines as well. To qualify for an important federal production tax credit, the Alle-Catt project needs to break ground or spend 10% of it’s more than $500 million cost by Dec. 31.

“A final decision is due from the Siting Commission in May,” Abraham said, adding that Invenergy will have a difficult time reviewing all the items that will be in the set of conditions the Siting Board will attach to its decision.

That is a lot of environmental work to do in under a year, Abraham added.

He is worried that the Siting Board’s charge is more economical — will it work economically — than whether the project will protect public health. “It’s all down to the conditions.”

Abraham said the examiners’ recommendation on the Freedom wind law, that the 207 law is in effect, is one of the most important things to come out. It limits the turbines to 450 feet instead of 600 feet.

One of the central issues of the 2019 Farmersville wind law is was it legally passed? “We think it is illegal,” Abraham said. “We’ve got a lawsuit to test that.”

The board has passed a new law, but the Siting Board may not consider that.

With the arbitrary date past which new developments cannot be considered, Abraham said the examiners are putting their thumb on the scale in favor of the developers.

“They are not looking at the environmental benefits and burdens. You shouldn’t have to destroy the environment to save it.”

(Contact reporter Rick Miller at rmiller@oleantimesherald.com. Follow him on Twitter, @RMillerOTH)

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