Wednesday, February 24, 2010

UPDATED FEEDBACK on Draft Legislation Regarding Utility Line Clearing Public Notification

Here is the legislation recently introduced into the State Senate by Senator Stewart-Cousins regarding Transmission Line ROW clearing. This bill effectively requires advanced notification and requires a public town/village meeting to allow discussion of the work project with community feedback.

There are many issues with this concept in that it does not go nearly far enough to begin to solve any of the current problems and issues. Here are some of these issues (updated base upon discussions resulting from this week's Westchester County BOL Energy & Environment committees joint meeting on Monday):

1) The bill should more clearly state what the nature of the 60 day notification consists of. This should be advanced notification to each property owner (private or municipal) by mailing or door cards which clearly spell out the scope and nature of the work. The card notification should also have a contact phone or email by which to set up an on-site consultation.

2) A written record of notification should be maintained indicating that the property owner has concurred with the plan. No work by utility or its contractor should occur without this proof.

3) Besides advanced notification, there should be a requirement to clearly survey & mark the boundaries of the ROW before any work commences.

4) All trees to be removed should also be clearly marked.

5) No enforcement mechanism is defined to ensure such advanced notice to property owners actually occurs. (Current regulations and vegetative management plans require notification now, but the results are spotty at best.) Who holds oversight for this? What can be done to ensure proper oversight occurs?

6) What if at the community meeting (or the on-site one-on-one meetings) folks don't agree to the work being proposed by the utility? There is no process for mediation or mitigation called out. (Why wouldn't the utilities position simply remain: "PSC is making us do this"??)

Public review of environmental concerns relating to planned actions traditionally falls into the category of a SEQR Environmental Impact Statement - which is supposed to outline options by which to minimize and mitigate any undesirable environmental impacts. However, Con Ed (and the other Transmission Utilities) are not required to produce an EIS for transmission line work as their actions fall under a "master" SEQR finding by the Public Service Commission from 2004.

Thus, there is currently no mechanism by which public input can be heard at a local level, nor can such input serve to induce a modification of utility plans or of the PSC- approved vegetative management policy.

The solution is not simply to require Con Ed (or other utilities) to hold public meetings for review of planned actions, but also should be to require that the environmental and property value impacts of such proposed work be fully outlined and effective restoration / remediation / mitigation measures be agreed upon by affected parties. (Yes, this is effectively a SEQR-like solution, but one in which the utilities are not given a "free pass" by the PSC. So why not just require a full SEQR to be undertaken in this situation?? Perhaps the local municipality could be assigned as the "lead agency" for review.)

A further necessary extension of this would be the need to define a (public) arbitration process by which acceptable mitigation can be reached - as it is certain that the utilities will want to do less than the affected property owners desire to have done... (But which agency would adjudicate such arbitration? The PSC? No, they have "failed" in their oversight already!) For the SEQR process now, the last resort now is filing an Article 78 action. This seems too extreme of a step to have to make simply to ensure the utility does not negatively impact your property or local environment. It puts the legal burden on the homeowner or the municipality - which is not where it should be, but rather on the utility!

7) Advanced notification does not begin to address the full range of issues concerning property value or environmental impacts of the line clearing work. This can only occur if the original (deceptive & illegal "short form"?) PSC SEQR from 2004  is re-opened and a full public review process instigated. Out of this process, the ROW clear cut guidelines would need to be modified to reflect current scientific and community concerns.

8) Mitigation requirements for impacts of recent clear-cut activities on homeowners and municipalities are not addressed, either.

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