BY JEFF CHUDZINSKI
North Country This Week

BRASHER — A judge has denied North Side Energy Center’s request for a new hearing regarding a planned 180-megawatt solar array that would have been in the towns of Brasher, Massena and Norfolk.

The ruling stated North Side Energy Center did not demonstrate that “the Siting Board committed an error of law or fact to warrant reversal of the Denial Order or that there is new information to justify reopening the record,” documents state.

North Side Energy Center had originally been denied during an Article 10 hearing earlier this summer following a sharp rebuke by state officials and the Department of Environmental Conservation who all said the affected wetlands in the project area were protected.

In their appeal, North Side attempted to argue the Siting Board had erred in its decision making and acting outside the scope of the law and Article 10 regulations.

Under such regulations, guidelines are set forth for the board to decide what lands would be impacted by such projects, including designated wetlands, as well as contiguous wetlands that may not be explicitly mapped by the DEC but are known to be existing wetlands.

The board struck at the base of North Side’s argument by saying “After finding that both mapped and unmapped wetlands delineated in North Side’s Application are subject to Article 10’s broad requirement of minimization and avoidance to the maximum extent practicable, the Denial Order finds that the record failed to reflect sufficient efforts to meet that standard and therefore could not support the required finding under PSL §168(3)(c).82 Although there was some evidence in the record of North Side’s efforts to minimize and avoid impacts to mapped wetlands where “practicable,” the Denial Order found no evidence of similar efforts with respect to unmapped wetlands and adjacent areas.”

Officials on the siting board say the impact on wetlands would not be mitigated and that North Side did not take any steps to change the existing site plan in an attempt to avoid such impact.

In regards to endangered species, officials say North Side again did not take appropriate steps to mitigate potentially negative effects on endangered species and their wetlands.

“The Siting Board’s Denial Order found the Project’s impacts to threatened and endangered species to be a separate but integrally-related basis for denial of the Certificate in view of the significant scale of wetland impacts and the resulting impacts to the habitat of protected species,” documents state.

Siting Board officials also took issue with protocols North Side said they would follow “with respect to threatened and endangered species, which would rely on general best management practices and ad hoc measures in the field by Project personnel, rather than on implementation of methodical, detailed, and well-planned measures to protect the species.”

Officials say the impact on protected species “are of a vastly more substantial nature” than the impacts examined in other Article 10 proceedings, which prompted the denial of a rehearing.

North Side also argued new ECL Article 24 amendments passed earlier this year would constitute “clear evidence that ECL Article 24 did not previously confer DEC with the authority to regulate unmapped wetlands and that the intent of the Legislature was to expand that authority.”

Officials shot back, saying the regulations and amendments were in place in April, long before the initial denial during the first hearing in June.

“Moreover, the Examiners considered the amendments when they were still only proposed legislation and issued a ruling questioning North Side’s conclusion that, if signed into law, the amendments would define DEC’s previous regulatory authority over unmapped wetlands. Without question, wetlands are a resource that changes over time, as the legislative amendments recognize. As we noted above, the amendments to ECL Article 24 reaffirm DEC’s long-standing practice to require a current, on-site wetlands delineation assessment on which DEC can rely in making a permitting decision, rather than relying exclusively on maps based on 1970s aerial photographs of changing wetland resources,” officials said.

In closing, the Siting Board took one last parting shot at North Side, castigating them offering little else in their argument for a rehearing that wasn’t already heard during the initial Article 10 hearing earlier this summer.

“We find that the Rehearing Petition fails to demonstrate that the Siting Board committed an error of law or fact to warrant reversal of the Denial Order or that there is new information to justify reopening the record. As such, North Side does not meet the standard for rehearing,” documents state.