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Motion To Answer and Answer of Millennium Pipeline Company, L.L.C. To Comments On The Environmental Assessment
Motion To Answer and Answer of Millennium Pipeline Company, L.L.C. To Comments On The Environmental Assessment
)
Millennium Pipeline Company, L.L.C. ) Docket No. CP16-486-000
)
Pursuant to Rules 212 and 213 of the Federal Energy Regulatory Commissions
Company, L.L.C. (Millennium) hereby moves to answer and answers certain comments
filed regarding the Commissions Environmental Assessment (EA) prepared for the
Eastern System Upgrade (ESU Project or Project). 2 On March 31, 2017, the
Commission issued the EA for the ESU Project, which addresses numerous comments
received in response to the Notice of Intent. 3 The EA properly concludes that approval of
the ESU Project, with appropriate mitigating measures, would not constitute a major
federal action significantly affecting the quality of the human environment, and
citizens. 5
1
18 C.F.R. 385.212& 385.213 (2016).
2
Millennium Pipeline Co., L.L.C., Environmental Assessment for the Eastern System Upgrade Project,
Docket No. CP16-486-000 (Mar. 31, 2017) (EA).
3
EA at 4.
4
Id. at 179.
5
This Answer addresses comments filed by Delaware Riverkeeper Network, Stephen Metts, Pramilla
Mallick, George Billard, Karen London, Paula Israel, and Sullivan County, NY.
I.
EXECUTIVE SUMMARY
Millennium owns and operates a natural gas pipeline system in southern New
York that transports natural gas in interstate commerce from an interconnection with
(Algonquin) facilities at Ramapo, New York. The ESU Project includes approximately
7.8 miles of 30-inch and 36-inch diameter pipeline loop in Orange County, New York
(the Huguenot Loop); a new compressor station in Sullivan County, New York;
New York; modifications at the Ramapo Meter Station in Rockland County, New York;
additional appurtenant facilities at the Huguenot and Westtown Meter Stations in Orange
County; and an auxiliary interconnection with the 16-inch Valley Lateral at milepost 7.6
of the Project. 6
(Dth) per day of additional firm transportation service from Millenniums Corning
Almost all of the capacity created by the Project, 202,500 Dth per day, is already
subscribed under long-term, firm contracts with local distribution companies (LDCs)
and municipalities delivering gas to their communities (Project Shippers). The ESU
Project also will enable Millennium to maintain current operating pressures at existing
6
Abbreviated Application of Millennium Pipeline Company, L.L.C. for a Certificate of Public
Convenience and Necessity at 1 (July 29, 2016) (Application).
2
delivery points after construction of the Project, continue to meet customer demand on
Millenniums system particularly during summer months, and ensure continued deliveries
unfounded assertions that Millenniums Valley Lateral Project and the ESU Project are
connected actions and that the Commission is, therefore, improperly segmenting its
environmental review of the two projects. This is incorrect. The Valley Lateral Project
and the ESU Project are separate projects with distinct purposes. The purpose of the
Valley Lateral Project is to supply the natural gas capacity to a new natural gas-fired
power plant, approved and under construction. The purpose of the ESU Project is to
create new, incremental natural gas transportation capacity to meet the market demand of
the Project Shippers. As demonstrated herein, both projects have substantial independent
DRN and other commenters argue that Millennium is overbuilding the ESU
Project and planning a future expansion using the ESU Project facilities that Millennium
has not told the Commission about. This is patently false. Millennium designed the
Project to meet the specific market demand for new natural gas transportation capacity, as
utilize any of the Project facilities for a future expansion project. The fact that the
Huguenot Loop is comprised of 36-inch pipeline, rather than 30-inch pipeline, is not
evidence of overbuilding. Rather, the 36-inch Huguenot Loop is required to meet the
Project demand. Using smaller diameter pipeline would not create the necessary capacity
3
for the Project without requiring Millennium to either increase the length of the Huguenot
Compressor Station, both of which would increase the environmental and landowner
without merit. The Commission is not required to evaluate the impacts of upstream
natural gas production or downstream natural gas combustion as alleged indirect impacts
of the Project because such impacts are neither casually connected nor reasonably
foreseeable impacts of the Project. The EA properly addressed the potential cumulative
impacts, alternatives, and health impacts of the Project. The Commissions fulsome
environmental review and EA is, therefore, consistent with the requirements of the
II.
MOTION TO ANSWER
Although answers to comments are not prohibited under the Commissions Rules
answer comments filed on the EA. 7 This Answer will help to ensure a complete record
upon which the Commission can base its decision on the merits of Millenniums
Application and will aid the Commission in its disposition of issues raised in this
proceeding. 8 For these reasons, Millennium submits this Answer and respectfully
7
18 C.F.R. 385.213(a).
8
See Millennium Pipeline Co., 157 FERC 61,096, at P 8, n.11 (2016) (allowing answer and noting that
Rule 213(a)(3) permits answers to any pleadings not specifically prohibited under paragraph (a)(2).), stay
denied, 158 FERC 61,086 (2017). See also Columbia Gas Transmission, LLC, 157 FERC 61,247, at
P 5, n.4 (2016) (allowing answer to comments because it would not delay the proceeding, [and it would]
4
requests that the Commission permit Millennium to respond to certain comments filed
III.
ANSWER
the environmental review of the ESU Project and Valley Lateral Project. 9 DRN
speculates that the projects appear to be part of a unified whole with functional
incorrect. Each project has a distinct and independent purpose; each project can stand on
its own without the other project; and in the absence of the other project each project
The proximity of the two projects is immaterial. It is axiomatic that the only way
for natural gas to be transported over long distances is through the nations vital and
dynamic natural gas pipeline network. 11 The Commission recognizes that this network is
both vast and tightly interconnected such that any expansionby definitionbuilds upon
assist[] the Commission in understanding the issues raised, and ensure a complete record); Algonquin Gas
Transmission, LLC, 157 FERC 61,164, at P 10 (2016) (allowing answer to comments that provides
information that [would] assist [the Commission] in [its] decision-making process).
9
The Valley Lateral Project was approved by the Commission on November 9, 2016. Millennium Pipeline
Co., 157 FERC 61,096.
10
Comments of Delaware Riverkeeper Network at 6 (May 1, 2017) (DRN Comments) (emphasis added).
11
Thatcher v. Tenn. Gas Transmission Co., 180 F.2d 644, 647 (5th Cir. 1950) (vast reserves of natural gas
are located in States of our nation distant from other States which have no similar supply, but do have a
vital need of the product; and that the only way this natural gas can be feasibly transported from one State
to another is by means of a pipe line.).
5
previous pipeline expansions. 12 Although there may be instances where one Commission
action is dependent upon another for action and it is appropriate for the Commission to
find that certain pipeline projects must be combined into a single environmental review, 13
The ESU Project and the Valley Lateral Project are not connected actions under
NEPA. NEPA regulations require that the scope of the Commissions environmental
review include all (1) connected actions, (2) cumulative actions, and (3) similar
actions. 14 Actions are connected if they: (i) [a]utomatically trigger other actions which
may require environmental impact statements[;] (ii) [c]annot or will not proceed unless
other actions are taken previously or simultaneously[;] (iii) [a]re interdependent parts of a
larger action and depend on the larger action for their justification. 15 The Commission
applies the so-called independent utility test in evaluating whether there are connected
actions between proposed projects. 16 Projects, like the Valley Lateral and ESU Projects,
that have independent utility are not considered connected actions, and therefore
need not be considered in the same environmental review document on that basis. 17 The
12
Transcon. Gas Pipe Line Co., 155 FERC 61,016, at P 68 (Every natural gas pipeline project before the
Commission can be found to be interconnected with another by virtue of the fact that the entire interstate
pipeline grid is a highly integrated transportation network.), stay denied, 155 FERC 61,246), rehg
denied, 157 FERC 61,095 (2016).
13
See e.g., Elba Liquefaction Co., 155 FERC 61,219, at P 18 n.12, rehg denied, 157 FERC 61,195
(2016).
14
40 C.F.R. 1508.25(a).
15
Id. 1508.25(a)(1).
16
See Tenn. Gas Pipeline Co., 158 FERC 61,110, at P 75 (2017); Algonquin Gas Transmission, LLC, 158
FERC 61,061, at P 79 (2017); Millennium Pipeline Co, 157 FERC 61,096, at P 58 (2016).
17
Utahns for Better Transp. v. U.S. Dept of Transp., 305 F.3d 1152, 1182-83 (10th Cir. 2002) (citing
Custer Cnty. Action Assn v. Garvey, 256 F.3d 1024, 1037 (10th Cir. 2001) (Put simply, projects that have
independent utility are not connected actions under 40 C.F.R. 1508.25(a)(1)(iii))), modified by, 319
F.3d 1207 (10th Cir. 2003); see also Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir.
2006) (When one of the projects might reasonably have been completed without the existence of the other,
6
key to determining whether multiple projects have independent utility is whether one
project will serve a significant purpose even if a second related project is not built.18
DRN suggests that the ESU Project and the Valley Lateral Project are connected
actions, asserting that Millennium has improperly split the overall expansion of its
natural gas pipeline system into smaller components. 19 Rather, Millennium planned the
Valley Lateral Project and the ESU Project as two separate and distinct projects to meet
the express customer need for new natural gas pipeline capacity. The Commissions
As stated in the order approving the Valley Lateral Project, [t]he purpose of
[that] project is to provide 127,200 Dth per day of firm natural gas transportation service
via the lateral to the Valley Energy Center, a new natural gas combined-cycle electric
power generator currently under construction in the Town of Wawayanda, New York, as
contracted by the developer of the Valley Energy Center, CPV Valley, L.L.C. (CPV).20
The purpose of the ESU Project is to provide the necessary pipeline infrastructure to
provide [LDCs] and a municipality with firm transportation service to meet their express
market demand for natural gas. 21 Millennium determined that the best way to achieve
the Project purpose was to construct and operate the Huguenot Loop, the new Highland
Compressor Station, and new compression at the existing Hancock Compressor Station.
the two projects have independent utility and are not connected for NEPAs purposes.) (citing Native
Ecosystems Council v. Dombeck, 304 F.3d 886, 894 (9th Cir. 2002)).
18
Coal. on Sensible Transp, Inc. v. Dole, 826 F.2d 60, 69 (D.C. Cir. 1987).
19
DRN Comments at 7.
20
Millennium Pipeline Co., L.L.C., 157 FERC 61,096, at PP 113, 4.
21
Application at 17.
7
The purpose for each project and the projects themselves are independent from each
other. Each project is supported by separate contracts from different shippers. The
shipper on the Valley Lateral Project is CPV, the owner and operator of the Valley
Energy Center. The ESU Project shippers are eight LDCs and a municipality that
requested the natural gas pipeline expansion capacity to serve their customers. In
addition, each project would go forward in the absence of the other project. Millennium
will build the Valley Lateral Project, whether or not the ESU Project is ultimately
approved and constructed; Millennium will build the ESU Project, even if the Valley
Lateral Project is not ultimately constructed. Furthermore, the scope of each project
would be essentially the same even in the absence of the other project. 22 Finally, when
planned the original timing of the two projects were very different. Millenniums
original in-service date was April 2017 for the Valley Lateral Project; the ESU Project
has a targeted in-service date of September 2018. Therefore, each project will serve a
significant purpose even if a second related project is not built 23 and the projects have
independent utility.
DRN ignores that the rule against improper segmentation of projects is meant to
down into small component parts. 24 In this way, the Commission may not segment its
22
Obviously, if the Valley Lateral Project is not constructed, Millennium would not build an auxiliary
interconnect to the 16-inch-diameter Valley Lateral as part of the ESU Project, but that would be a minor
change that would not otherwise affect the proposed scope of the ESU Project.
23
Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d at 69.
24
40 C.F.R. 1508.27(b)(7).
8
the environmental significance of the project as a whole. 25 The purpose of this rule
against segmentation is to prevent agencies from dividing one project into multiple
but which collectively have a substantial impact. 26 With this project, rather than trying
to hide the impacts of the two projects, the Commissions EA actually fully disclosed the
ESU Project and the Valley Lateral Project in the EA. The EA identifies the Valley
Lateral Project as a project with the potential to have cumulative impacts with the ESU
Project. 27 The EA then analyzed the potential cumulative impacts the two projects would
length below, the EA reviews the cumulative impacts of the two projects on geology and
soils, water resources and wetland, vegetation and wildlife, land use and visual resources,
and air quality. In each case, the EA concludes, that the ESU Project, when considered in
conjunction with the Valley Lateral Project and other projects, would not result in
DRN cites Delaware Riverkeeper Network v. FERC to support its position, but
that case is clearly distinguishable from the facts in this case. In that case, the court
25
Coal. on Sensible Transp., Inc., v. Dole, 826 F.2d at 68.
26
Natural Res. Def. Council v. Hodel, 865 F.2d 288, 297-98 (D.C. Cir. 1988) (quoting Thomas v. Peterson,
753 F.2d 754, 758 (9th Cir. 1985)).
27
EA at 153.
28
Id. at 166.
9
closely related and interdependent projects 29 with a clear physical, functional, and
temporal nexus between the projects. 30 As noted by DRN, the court explained that
[t]he new pipeline is linear and physically interdependent; gas enters the system at one
end, and passes through each of the new pipe sections and improved compressor stations
on its way to extraction points beyond the [portion of the pipelines system]. The
upgrade projects were completed in the same general time frame, and FERC was aware
[project under review]. 31 The court also noted that [t]he pipeline is linear and
physically interdependent, and it contains no physical offshoots. 32 The court held that
the Commission improperly segmented four pipeline projects where the end result [was]
a single pipeline running from the beginning to the end of [a portion of a pipeline
system]. 33 Therefore, the court concluded, the project under review was indisputably
related and significantly connected to the other three pipeline upgrade projects. 34 The
facts in this case are entirely distinguishable from Delaware Riverkeeper Network.
Here, the Valley Lateral and ESU Projects are physically and functionally
independent. The Valley Lateral will be an offshoot from the Millennium mainline
system and will not routinely receive gas from the new ESU Project facilities. Although
there will be an interconnection between the Valley Lateral and the ESU Project, that
29
De. Riverkeeper Network v. FERC, 753 F.3d 1304, 1308 (D.C. Cir. 2014) (De. Riverkeeper); see also,
Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 113 n.11 (D.C. Cir. 2014) (discussing
application of De. Riverkeeper).
30
De. Riverkeeper, 753 F.3d at 1308
31
Id., 753 F.3d at 1308-9; DRN Comments at 8.
32
De. Riverkeeper, 753 F.3d at 1316.
33
Id. at 1314.
34
Id.
10
interconnection is only for reliability and redundancy, in the event that that the lateral
cannot be supplied off the existing 24-inch diameter pipeline. The interconnection
between the two projects is a prudent way to increase reliability and facilitate
maintenance, but not a core component of either project. The mere physical proximity of
the two projects does not demonstrate that the projects are connected. Millennium had no
control over the location and siting of CPVs Valley Energy Center. The Valley Lateral
Project was designed to tie into Millenniums system at the closest location to the Valley
Energy Center, which is near the end of the existing 24-inch pipeline segment. The ESU
Project facilities are located in this area because the existing 24-inch segment under the
Neversink River is the only remaining stretch of 24-inch, lower MAOP mainline pipeline
required for the Project shippers, the Huguenot Loop proposed as part of this Project is
intended, in part, to relieve what would otherwise be a bottleneck from the existing 7.2
miles of 24-inch pipeline between the Huguenot and Westtown Meter Station. This
factual situation is distinct from the facts in Delaware Riverkeeper Network, where the
court found the segmented projects were a single pipeline running from the beginning to
the end. Therefore, the Valley Lateral Project and the ESU Project are not connected
actions and the Commission cannot be said to be improperly segmenting its review of
these projects.
The ESU Project is not overbuilt, as baselessly asserted by DRN. DRN simply
speculates without support that certain design features of the ESU Project indicate that
11
Millennium plans further expansion. 35 However, DRNs assertions, based on a report
prepared by Accufacts, Inc. (Accufacts Memo), that the proposed pipeline diameter or
operating pressures are not appropriately scaled for the Project, are based on unfounded
conjecture. Similarly, the argument that Millenniums existing 24-inch, 7.2-mile pipeline
designed the ESU Project to construct and operate the pipeline infrastructure necessary to
deliver the required volumes to Ramapo at the appropriate pressure under design
conditions to provide the Project Shippers with the firm transportation service to meet
their express market demand for natural gas. Millennium specifically designed each
project to meet the respective needs of each projects shippers. Millennium has no
current commitments or plans to further expand its system that would utilize any of the
ESU Project facilities or in the vicinity of the ESU Project. Therefore, there is no basis to
conclude that the Commission would be improperly segmenting its review of the ESU
DRN argues that neither the proposed pipeline diameter nor the operating
pressure is necessary to support the ESU Project, which purportedly indicates that
35
DRN Comments at 12, 13.
36
In its comments, DRN refers to the existing 7.2-mile section of the Millennium mainline pipeline
between the Huguenot and Westtown meter stations as the Neversink segment.
37
DRN Comments at 9 (quoting Accufacts Memo (attached to DRN Comments)).
38
Id. at 12.
12
proposed pipeline diameter and the operating pressure are appropriate to serve the
The primary purpose of the ESU Project is to provide the necessary pipeline
infrastructure to provide the Project customers, LDCs and a municipality, with firm
transportation service to meet their demand for natural gas. 39 Specifically, the ESU
Project would allow Millennium to transport approximately 223,000 Dth per day of
natural gas from its Corning Compressor Station to an existing interconnect with
Algonquin to serve these customers. 40 The Project is also designed to provide continued
interconnecting pipelines. 41 Both the proposed pipeline diameter and the MAOP serve
these purposes.
mile of new 30-inch and 7.7 miles of new 36-inch diameter pipeline looping along its
existing right-of-way in Orange County, New York, also called the Huguenot Loop.42
According to DRN, 36-inch diameter pipeline is larger than needed and Millennium
has not adequately justified their proposing a 36-inch diameter pipeline for the Huguenot
39
Application at 17; EA at 2.
40
Application at 6; EA at 2.
41
Application at 6-7.
42
EA at 10.
13
Loop. 43 DRN ignores the fact that a 30-inch pipeline would not create enough capacity
DRNs conclusion that a 30-inch pipeline is sufficient for the Huguenot Loop is
simply not correct. Hydraulic pipeline modelling clearly shows that a 30-inch pipeline
will not meet the project objective of delivering 223,000 Dth per day to Algonquin,
whereas a 36-inch diameter line will suffice. If Millennium installed a 30-inch pipeline
rather than the proposed 36-inch pipeline, either additional looping or compression would
need to be included in the Project in order for Millennium to meet the Project Shippers
express market demand. The proposed Project consisting of the 36-inch Huguenot Loop,
in combination with the horsepower additions at the compressor stations, provides the
optimal mix to maintain design pressures and deliver the increased flows during peak
Regarding operating pressure, the design pressure for the proposed loop is 1,350
psig even though the current system MAOP is 1,200 psig. The design pressure exceeds
regulatory design requirements for the MAOP and adds a margin of reliability and safety
Millennium has no current commitments or plans to use the higher operating pressure for
any expansion.
DRN also asserts, through the Accufacts Memo, that the delivery pressure of 750
psig to Algonquins system needs to be independently justified, and that without such
43
DRN Comments at 3-4 (quoting Accufacts Memo).
44
49 C.F.R. 192.619.
14
upgrades. 45 This assertion is unfounded. The Projects proposed delivery pressure of
with Algonquin. Algonquin has recently increased the MAOP of one of its two pipelines
at the interconnection with Millennium at Ramapo to 750 psig, and the other line is in the
process of being upgraded to an even higher MAOP. To ensure that Millennium can
continue to make reliable deliveries into Algonquin, Millennium has designed the ESU
Project so that delivery pressures will meet a minimum delivery pressure of 750 psig.
Therefore, Millennium properly designed the ESU Projects pipeline diameter and
operating pressure.
DRN and the Accufacts Memo also allege without support that Millenniums
pipeline is out of character with the design of the rest of the newer Millennium
transmission pipeline and is of little value to the mainline Millennium Pipeline system
except to serve as a delivery supply line to customers on that segment, essentially the
proposed CPV power plant. 46 From this conjecture, DRN concludes incorrectly that the
serve as a much lower gas flow delivery supply gas line to the proposed CPV power
part of the system after the Valley Lateral and ESU Projects are complete.
45
Accufacts Memo at 3.
46
Id. at 4.
47
Id.
15
The Huguenot-to-Westtown segment was originally part of Columbia Gas
Millenniums system. 48 The Huguenot Loop is intended, in part, to ease what would
otherwise become a bottleneck on the system due to the 24-inch pipeline segment. DRN
is correct that once the Huguenot Loop goes into service, the existing Huguenot-to-
Westtown segment will not normally be operated in tandem with the new 36-inch line.
The Huguenot-to-Westtown segment will continue to serve current delivery points along
its path, and provide a critical reliability function during maintenance and emergencies.
plans for future expansion or abandonment of facilities associated with the ESU Project,
at this time. If additional demand for natural gas requires expansion in the future,
Millennium will seek the appropriate authorization from the Commission and other
applicable federal, state, and local agencies at that time. The Commission is simply not
required to include in its environmental review a potential or future project concept that is
so speculative, like the future project alleged by DRN, that it is based on generalized
assumptions rather than reasonably specific information that will not meaningfully
DRN also alleges that the Commission violated NEPA by failing to provide a
48
Millennium Pipeline Co., 100 FERC 61,277 (2002).
49
Natl Fuel Gas Supply Corp., 158 FERC 61,145, at P 163 (2017).
16
ESU and Valley Lateral Projects. 50 However, the Commission not only considered
potential cumulative impacts associated with the ESU and Valley Lateral Projects, but
also identified 14 other energy projects and one transportation infrastructure project
within the ESU Projects region of influence. 51 The Commission nevertheless concluded
that although the Project could contribute to cumulative impacts, Millennium would
collocat[ing] the Huguenot Loop within its existing right-of-way. 52 The Commissions
analysis was thus fully consistent with its NEPA responsibilities and its obligation to take
the impact on the environment which results from the incremental impact of the
[proposed] action when added to other past, present, and reasonably foreseeable future
methodology set forth in relevant guidance from CEQ and EPA. 55 Consistent with such
from other projects that would directly or indirectly result in similar effects as the
Project. 56 For each environmental resource potentially affected by the Project, the
50
DRN Comments at 16.
51
EA at 152-154, Table B-26, Existing of Proposed Projects with Potential Cumulative Impacts in the
Region of Influence.
52
EA at 156.
53
Mo. Coal. for the Envt v. FERC, 544 F.3d 955, 958 (8th Cir. 2008) (quoting Mayo Found. v. Surface
Transp. Bd., 472 F.3d 545, 549 (8th Cir. 2006)); see also Balt. Gas & Elec. Co. v. Nat. Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983).
54
40 C.F.R. 1508.7; EA at 151.
55
EA at 151.
56
Id.
17
Commission identified a specific geographic scope of analysis. 57 The analysis then
considered cumulative impacts to geology and soils, water resources and wetlands,
vegetation and wildlife, land use and visual resources, as well as air quality. Regarding
geology and soils, the Commission noted that [b]ecause direct effects of geologic
hazards would be highly localized and limited primarily to the period of construction,
cumulative impacts from geologic hazard impacts would only occur if other projects are
constructed at the same time and place as the proposed facilities. 59 The Commission
observed that the geologic setting of the Project poses minimal geologic hazards, and
applicants for the other FERC permitted projects [including the Valley Lateral] would
employ best management practices to limit effects on soils. 60 The EA, therefore,
DRN asserts that the EA contains little to no analysis of the impact of the
construction and operation of each of the projects on the same sub-watersheds and
tributary basins. 61 However, the EA defines the geographic scope for assessing
cumulative impacts on water resources and wetlands as including each of the seven
HUC-12 subwatershed crossed by the Project. 62 The EA recognizes that several other
57
Id. at 152.
58
Id. at 151.
59
Id. at 156.
60
Id.
61
DRN Comments at 18.
62
EA at 157.
18
projects, including the Valley Lateral Project, are within the same subwatersheds as those
crossed by the ESU Project, and that the ESU Project, when considered with other
projects in the vicinity, would therefore result in cumulative impacts on water resources
affected by both the ESU and Valley Lateral Projects, these wetlands would be restored
such that no permanent impacts would occur. 64 Thus, the EA properly concludes that
because both projects would be required to comply with mitigation requirements and
other conditions in the New York State Clean Water Act Section 401 certification and the
Nationwide Permit 12 as issued by the U.S. Army Corps of Engineers, and because
incremental impacts would be temporary and minor, the cumulative impacts would not
be significant. 65
species, the EA specifically considers the combined total acreage impact of the ESU and
Valley Lateral Projects. 66 The EA also observes that although cumulative impacts are
the Project within existing right-of-way where practicable and by implementing measures
63
Id.
64
Id.
65
Id.
66
Id. at 158 ([T]ogether, the Project and the Valley Lateral Project would affect a total of about 249.5
acres of vegetation during construction and 91.3 acres during operation.).
19
in its [Environmental Construction Standards]. 67 Further, the Endangered Species Act
consultation process would ensure that impacts to threatened and endangered species are
minimized.
Regarding land use and visual resources, the EA identified projects within one
mile that may contribute to cumulative impacts, including the Valley Lateral Project. 68
Both the ESU Project and the Valley Lateral Project would result in some permanent
impacts, including conversion of open, agricultural, and forested land to maintain rights-
of-way and provide access for aboveground facilities and access roads. However, most
of the land use impacts associated with these projects would be temporary and most land
would revert to its prior uses following construction. 69 Visually, both the ESU and
Valley Lateral Projects will have some impact in the geographic scope of the Project, yet
the incremental impact to visual resources would be relatively minor given the majority
In addition to asserting that the EA does not adequately analyze the cumulative
impacts of the Projects, DRN specifically alleges that the EA excludes the construction
and operation of the related gas power plant from its environmental review. 71 However,
the EA specifically includes the CPV Valley Energy Center in its analysis of cumulative
67
Id.
68
Id. at 159.
69
Id.
70
Id. at 160.
71
DRN Comments at 18.
20
impacts on air quality, including a summary of estimated construction emissions. 72 The
occurring within 0.25 mile of the ESU Project, as construction emissions are highly
localized. 73 For cumulative impacts due to operation, the EA identified projects within
31 miles of the ESU Project. Both analyses include the Valley Lateral Project. The EA
notes that the cumulative construction emissions from the CPV Valley Energy Center,
Valley Lateral Project, and concurrent construction of the [ESU] Project . . . would be
occur in 2017, with the Valley Lateral and CPV Energy Center anticipated to be
completed in 2017. Thus, [a]ny potential cumulative impacts from construction would
be limited to the duration of the construction period, and would be temporary and
minor. 75 However, both Projects would be required to meet all applicable federal and
state air quality standards that are designed to avoid significant impacts on air quality.76
The EA thus reasonably conclude[s] that the Project would not result in significant
the environment[ ] that will result from induced new natural gas drilling development
72
EA at 162, Table B-27.
73
Id. at 160-61.
74
Id. at 161.
75
Id.
76
Id. at 162.
77
Id. (noting that [d]uring operation, emissions from the Valley Lateral Project and [ESU] Project in
Orange County, New York would be limited to fugitive emissions of CO2e and VOCs.).
21
caused by the Project. 78 However, it is the individual states, and not the Commission,
that regulate activities associated with the exploration and production of natural gas. 79
Further, a review of upstream natural gas development is not required under NEPA
because the impacts of such drilling are not causally connected to the ESU Project or
reasonably foreseeable. The EA thus properly excluded impacts from upstream natural
review.
natural gas production are generally neither caused by a proposed pipeline (or other
natural gas infrastructure) project nor are they reasonably foreseeable consequences of
The EA appropriately noted that upstream and downstream emissions are not causally
connected to the Project, 81 which is consistent with Commission and court precedent.
declining to consider so-called induced shale gas production when conducting its
78
DRN Comments at 51. DRN also argues in passing that the EA includes no analysis of impacts from
the installation and operation of a new gas distribution system that will be caused by the Project, without
providing any details or facts pertaining to such distribution system. Id. Nevertheless, DRN is incorrect.
Despite recognizing that downstream emissions are not casually connected to the Project, the EA includes
an analysis of estimated downstream GHG emissions using EPA-developed methodology. See EA at 165-
66.
79
See, e.g., Constitution Pipeline Co., 154 FERC 61,046, at P 137 (2016) (The Commission does not
have jurisdiction over natural gas production.); Dominion Transmission, Inc., 156 FERC 61,140, at P 44
(2016) (same), rehg denied, 158 FERC 61,029 (2017); Tenn. Gas Pipeline Co., 156 FERC 61,156, at
P 83 (2016) (same).
80
Dominion Transmission, Inc., 153 FERC 61,203, at P 24 (2015) (citation omitted), rehg denied, 155
FERC 61,234 (2016).
81
EA at 165.
22
NEPA review. 82 The Commission has found that, rather than pipeline projects causing
natural gas drilling, the opposite causal relationship is more likely, i.e., once production
begins in an area, shippers or end users will support the development of infrastructure to
The Commission has further explained that the impacts from the development of
upstream natural gas resources are not reasonably foreseeable. 84 In Central New York
On review, the United States Court of Appeals for the Second Circuit upheld the
FERC reasonably concluded that the impacts of that development are not sufficiently
82
See e.g., Cent. N.Y. Oil & Gas Co., LLC, 137 FERC 61,121 (2011), order on rehg, 138 FERC 61,104
(2012), upheld by the Second Circuit in Coal. for Responsible Growth & Res. Conservation v. FERC, 485
Fed. Appx. 472, 474 (2nd Cir. 2012) (Central N.Y. Oil and Gas Co.); Sierra Club v. FERC, 827 F.3d 59,
69 (D.C. Cir. 2016).
83
Nw. Pipeline, LLC, 157 FERC 61,093, at P 32 (2016) (noting that [t]o date, the Commission has not
been presented with a proposed project that the record shows will cause the predictable development of gas
reserves, and that the opposite causal relationship is more likely); Dominion Transmission, Inc., 153
FERC 61,203, at P 24.
84
Central N.Y. Oil and Gas Co., 137 FERC 61,121, at P 95.
85
Id. at P 100. See also Nw. Pipeline, 157 FERC 61,093, at P 33 (observing that the Commission
generally does not have sufficient information to determine the origin of the gas that will be
transported[,] and that a meaningful analysis of production impacts would require more detailed
information[.] . . . Accordingly, the impacts of natural gas production are not reasonably foreseeable
because they are so nebulous that [the Commission] cannot forecast their likely effects.) (citing Habitat
Educ. Ctr. v. U.S. Forest Serv., 609 F.3d 897, 902 (7th Cir. 2010) (impacts that cannot be described with
sufficient specificity for meaningful consideration need not be included in environmental analysis)).
86
Coal. for Responsible Growth & Res. Conservation, 485 Fed. Appx. at 474.
23
this opinion and the Commissions precedent, the Commission is not required to look at
the impacts of upstream natural gas drilling in its review of the ESU Project. The EA
gas (GHG) emissions and the effects of such emissions on climate change. 87
However, the EA adequately analyzes the GHG emissions attributable to the construction
and operation of the Project and includes an analysis of these emissions and their sources.
GHG emissions from the Project and concludes that GHG emissions have been
sufficiently minimized. 88
The EA estimates the GHG emissions associated with construction and operation
of the Project, evaluates the potential impacts of such emissions, and presents the
recognizes that construction of the Project would result in some intermittent and short-
however, would return to current levels once construction activities are completed, and
thus would be temporary in nature and not cause, or significantly contribute to, a
87
DRN Comments at 60.
88
EA at 166.
89
See Dominion Transmission, Inc., 158 FERC 61,029, at P 5 (finding that the Commissions
consideration of greenhouse gas emissions was sufficient under NEPA).
90
EA at 127. See id at 128-29, Table B-16, Summary of Estimated Emissions from Construction of the
Eastern System Upgrade Project (summarizing emissions by facility and year of construction).
24
violation of any applicable ambient air quality standard. 91 Operational GHG emissions
Stations and the Ramapo Meter Station, as well as fugitive and vented emissions [(i.e.
blowdowns)] at the compressor stations and pipeline facilities. 92 The EA notes that
emissions. 93 The EA concludes that the estimated emissions from construction and
operation of the ESU Project would continue to comply with ambient air quality
standards, which are designed to protect human health, including children, the elderly and
sensitive populations. 94
presents the direct and indirect GHG emissions associated with construction and
operation of the [ESU Project] and the potential impacts of GHG emissions in relation to
are not causally connected to the Project, the EA estimates GHG emissions from end-use
transported 365 days per year, which may represent a significant overestimation of
91
EA at 130.
92
Id.
93
Id. at 132.
94
Id.
95
Id. at 165.
96
Id. at 165-66 (noting that the Project can deliver up to 223,000 D/th, which can produce 4.3 million
metric tons of CO2 per year from end-use combustion).
25
emissions as it is unlikely that this total amount of GHG emissions would occur.97
The EA also notes that burning natural gas emits less CO2 compared to other fuel
sources, such as oil or coal. 98 Importantly, with respect to climate change, alleged
impacts from the Project must be caused by the proposed project and be reasonably
physical effects of the global environment, the EA is unable to determine the precise
emissions from the construction and operation of the Project would be sufficiently
minimized.
A number of commenters argue that the EAs estimate of two full station
blowdowns a year to estimate emissions from the compressor stations is unreasonable. 101
The commenters argue the Commission cannot rely on two blowdowns a year because
based on operational experience over the last several years at the Minisink and Hancock
97
Id. at 166.
98
Id.
99
40 C.F.R. 1508.8(a), (b) (Indirect effects . . . are caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable). See also Columbia Gas Transmission, LLC,
158 FERC 61,046, at P 104 (2017) (noting that reasonably foreseeable indirect effects are those that are
sufficiently likely to occur [such that] a person of ordinary prudence would take it into account in reaching
a decision (quoting Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992)).
100
See Columbia Gas Transmission, LLC, 158 FERC 61,046, at P 104 (An agency is not required to
engage in speculative analysis or to do the impractical, if not enough information is available to permit
meaningful consideration (quoting N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,
1078 (9th Cir. 2011)).
101
Comments of Stephen Metts, FERC EA Blowdown Discrepancies at 2 (Apr. 25, 2017) (Metts
Blowdown Comments); Comments of Paula Israel at 1 (Apr. 28, 2017).
26
Compressor Stations, blowdowns occur more than twice a year. A deeper analysis of the
comments and the data they rely upon demonstrates the EAs analysis is appropriate.
Commenter Stephen Metts argues that the frequency of blowdown events at the
existing Minisink and Hancock Compressor Stations is higher than two full blowdowns a
year. Mr. Metts cites data in the Environmental Protection Agency (EPA) GHG
Facility Reporting program that in 2015 the Minisink Compressor Station had 8
blowdown events whereas year 2014 featured 46 events from Unit 1; and 51 events
from Unit 2. 102 In addition, Mr. Metts cites data showing that in 2015 the Hancock
compressor; 2 emergency events and 29 blowdown events generally and in 2014 there
were 11 blowdown events. 103 Millennium does not dispute these numbers, but notes that
they are not inconsistent with the EAs estimated number of blowdowns. Moreover, a
closer look at the data reveals the reasonableness of the Commissions GHG emissions
estimates.
Compressor Stations appear high, those numbers represent compressor unit blowdowns
and not full station blowdowns. This distinction is important because unit blowdowns
consist of the venting of a minimal amount of gas from the suction valve to the discharge
valve of the compressor unit and nothing more. A full station blowdown includes
venting the gas from all the units plus all yard and station piping. The piping contains the
largest volume of gas and, therefore, would account for the larger portion of the vented
102
Metts Blowdown Comments at 3.
103
Id.
27
natural gas. Although there were more unit blowdowns than expected at Minisink and
Hancock in 2014 and 2015, as explained in the EA, Millennium will be installing new
equipment as part of the Project at Hancock and Highland Compressor Stations that will
minimize the need for venting during emergency shutdown (ESD) events and ESD
testing. Millennium plans to install valves on the vent lines to allow for a blocked
vents test which means Millennium will not need to vent any gas when testing the ESD
system. As standards for this modification have just recently been adopted, Millennium
will also be installing this equipment at the Minisink Compressor Station later this year.
These measures will further reduce emissions from the compressor stations.
As the Commission explains in the EA, the annual estimated carbon dioxide
equivalents (CO2e) emissions will be approximately 105,086 CO2e from the Highland
Compressor Station and approximately 173,659 CO2e from the Hancock Compressor
Station. 104 This includes both operational and fugitive emissions from the stations. In
the EA the Commission prepared for the Minisink Compressor Station, the Commission
estimated that the total operational emissions of CO2e from the station would be
approximately 61,751 CO2e a year. 105 And in the EA for the Hancock Compressor
Station the Commission estimated the total operational emissions to be 70,438 CO2e a
year. 106 Based on the actual emissions from both of these stations, these numbers are, in
actuality, conservative over-estimates. The actual GHG emissions reported to EPA for
104
EA at 131, Table B-17.
105
Millennium Pipeline Company, LLC, Environmental Assessment for the Minisink Compressor Project,
at 27, Docket No. CP11-515-000 (Mar. 2012) (Minisink EA). It appears this estimate does not include
vented emissions from blowdowns.
106
Millennium Pipeline Company, LLC, Environmental Assessment for the Hancock Compressor Project,
at 50, Docket No. CP13-14-000 (Mar. 2013).
28
the Minisink Compressor Station was 48,444 CO2e in 2014 and 49,424 CO2e in 2015, 107
both of which are lower than the estimates in FERCs EA. Additionally, the actual
reported GHG emissions for the Hancock Compressor Station was 31,992 CO2e in 2014
and 50,672 CO2e in 2015, 108 also lower than the Commissions estimates in the EA for
that project. Despite a number of unanticipated unit blowdowns for both stations, the
actual emissions are significantly lower than the estimates the Commission made as part
of its environmental review for both projects. Therefore, the actual reported data only
should have considered the so-called Wagoner alternative that the Commission
to the ESU Project. 109 However, the Wagoner alternative is not a viable or reasonable
alternative to the ESU Project and is, therefore, appropriately excluded from
consideration.
during its review of a proposed action. 110 NEPA does not define what constitutes a
107
See https://ghgdata.epa.gov/ghgp/service/facilityDetail/2014?id=1011615&ds=E&et=&popup=true.
108
See https://ghgdata.epa.gov/ghgp/service/facilityDetail/2014?id=1011561&ds=E&et=&popup=true.
109
Comments of Stephen Metts, ESU Project EA Failure to consider viable alternative (May 1, 2017);
Comments of Pramilla Mallick (May 1, 2017); Comments of George Billard (May 1, 2017); Comments of
Karen London (May 1, 2017).
110
See 42 U.S.C. 4332(2)(C)(iii) (2012); 40 C.F.R. 1502.1, 1502.14, and 1502.16 (2016). See also
Minisink Residents for Environmental Preservation and Safety v. FERC, 762 F.3d at 102.
29
reasonable alternative; however, CEQ provides that a reasonable range of alternatives
depends on the nature of the proposal and the facts in each case. 111 The Commission is
not required to consider alternatives that are not consistent with the purpose and need of
Westtown segment beneath the Neversink River. 113 The Minisink EA concluded that,
although the Wagoner Compressor Station site had some advantages over the Minisink
location, when combined with the impacts associated with replacing the Huguenot-to-
environmental advantage over the proposed project. 114 The Commission fully considered
the Wagoner alternative, adopted the findings of the EA, and authorized the Minisink
Compressor Station. 115 This issue was discussed and affirmed by the Court of Appeals
for the District of Columbia Circuit, which found that the Commission amply
111
Forty Most Asked Questions Concerning CEQs National Environmental Policy Act Regulations, 46
Fed. Reg. 18,026, 18,027 (1981).
112
See, e.g., Pac. Coast Fedn of Fishermens Assns v. Blank, 693 F.3d 1084, 1100 (9th Cir. 2012).
113
Minisink EA at 2.
114
Id. at 54.
115
Millennium Pipeline Company, L.L.C., 140 FERC 61,045, order on rehg, 141 FERC 61,198 (2012).
116
Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d at 107 (it seems clear that FERC duly
considered the Wagoner Alternative (and other alternatives), and cogently explained its rationale in finding
the Minisink Project properly approved under the NGA).
30
In this case, the Wagoner alternative is not an alternative to the ESU Project
because, from a system design and hydraulics standpoint, it would be sited too close to
the existing Minisink Compressor Station and would create operational deficiencies in
Millenniums system. The proposed Highland Compressor Station, on the other hand, is
located in the hydraulically ideal location situated approximately midway between the
Hancock and Minisink Compressor Stations. The location of the Highland Compressor
Station is an efficient location to obtain the most benefit for least amount of new
compression. The Wagoner alternative may have been an alternative to the Minisink
Compressor Station when it was originally proposed, but is not a reasonable Project
alternative to the ESU Project that the Commission is required to evaluate here.
its own judgment for pipeline companies own business decisions on whether particular
project alternatives would be cost-effective and timely options. 117 The Commission,
A number of commenters suggest the Commission has not properly assessed the
health impacts of the Project on the community. 118 The EA addressed the health impacts
of the compressor stations and concluded, that based on the Commissions own air
modeling, the emissions of criteria pollutants, particularly NOX and CO, would be within
117
Tex. E. Transmission, LP, 146 FERC 61,086, at P 41 (2014).
118
See Comments of Pramilla Malick; Comments of Jessica Irish (May 1, 2017); Comments of Sullivan
County, NY (May 1, 2017).
31
the levels established by EPA to be protective of human health. 119 In addition, the EA
concluded that although small quantities of hazardous air pollutants can form from
combustion or blowdowns, the EA found that the applicable National Emission Standards
for Hazardous Air Pollutants would limit such emissions.120 Finally, the EA noted that
all toxic air pollutants assessed were below New York States annual and short-term
guideline concentrations at both the Highland and Hancock Compressor Stations. 121 The
EA reasonably concluded, therefore, that the health risks from operation of the Project
On February 10, 2017, Millennium filed with the Commission a Human Health
Risk Assessment Report (Health Report) for air emissions associated with the ESU
Project, prepared for Millennium by TRC Environmental Corporation. 123 The Health
Report evaluates the potential human health impacts associated with the proposed
Highland Compressor Station and the upgrade proposed to the existing Hancock
Compressor Station. The Health Report quantifies the potential operational and
blowdown emissions from the compression associated with the Project, models those
emissions under conservative conditions, and estimates the health risk of those modeled
emissions. Based on this process, the report concludes that emissions of hazardous air
pollutants from operations at full capacity and releases of natural gas from venting from
the compressor stations, utilizing conservative assumptions, are below a level of health
119
EA at 132.
120
Id. at 133.
121
Id.
122
Id.
123
Supplemental Information Human Health Risk Assessment Report (Feb. 10, 2017) (Health Report).
32
concern. 124 The Health Report also compares the hazardous air pollutants attributable to
the Highland Compressor Station and the upgrade at the Hancock Compressor Station to
the ambient concentrations of pollutants already in the air, concluding that the Project
emissions would be below what is typically in the ambient air. 125 The Health Report
further supports the conclusion in the EA that health risks from the Project would not be
significant.
timber rattlesnake (a state-listed rare species) den near the Highland Compressor Station
not a timber rattlesnake den and does not warrant further consideration by the New York
124
Id. at 24.
125
Id. at 21.
126
Comments of Stephen Metts, Public Disclosure of evidence of Potential Timber Rattlesnake Den at 1
(Apr. 28, 2017).
33
IV.
CONCLUSION
the Commission (1) accept this Answer, (2) reject the Commenters comments, and (3)
issue certificates of public convenience and necessity for the ESU Project by July 31,
2017.
Respectfully submitted,
A. Gregory Junge
Michael R. Pincus
Van Ness Feldman, LLP
1050 Thomas Jefferson Street, NW
Seventh Floor
Washington, D.C. 20007
202-298-1800
agj@vnf.com
mrp@vnf.com
34
ATTACHMENT A
Kathy Michell, Wildlife Biologist
KT Wildlife, LLC
42 School St
Narrowsburg, NY 12764
845-252-3501
Re:
Response to Public Comment Regarding Timber Rattlesnakes
Eastern System Upgrade - FERC Environmental Assessment
Millennium Pipeline Company LLC
FERC Docket No. CP16-486-000
The intent of this letter is to address the comments and inaccuracies detailed within the
public comment submitted on April 28, 2017 by Stephen Metts to the Federal Energy
Regulatory Commission (FERC) regarding the Draft Environmental Assessment for the
proposed Eastern System Upgrade (Project). Mr. Metts primary concern in this letter
relates to potential Project-related impact on timber rattlesnake habitat within the
Highland Compressor Station property. The issues raised within the comment letter are
addressed below in the order in which they appear in the letter.
Mr. Metts falsely states that no evidence is offered to the public to support FERCs final
declaration that Project would not have an adverse effect on the timber rattlesnake,
including the Privileged and Confidential study, Timber Rattlesnake Habitat and Occurrence
Survey previously submitted by Millennium to both FERC and the New York State
Department of Environmental Conservation (NYSDEC). Studies of this nature contain
specific locations of critical den, basking, and gestating habitat and cannot be disclosed to
the public. Confidentiality of this location data is critical to the protection of the species,
especially of species which have a limited range and specific habitat requirements such as
the timber rattlesnake. A den location cannot be changed or moved, and once a site is
extirpated, intentionally or inadvertently, it is gone forever. These confidential reports are
reviewed by knowledgeable people from the appropriate agencies, in this case NYSDEC,
who then make informed management decisions.
Mr. Metts proceeds to state that he will review actual facts of this matter to show
deficiencies in FERCs no adverse effect finding provided within the Draft Environmental
Assessment. He claims that the Delaware River Network has brought to the attention of the
NYSDEC evidence and GIS mapping of a potential den and/or rookery site in very close
proximity of the proposed compressor station site. He further comments that this site is
not the location known as the Sunrise Den which he claims is slightly northeast of the
proposed site. In reality, the Sunrise Den is southeast of the site. Much of the remainder of
Mr. Metts letter attempts to present a case for this potential den being a critical habitat.
What Mr. Metts fails to recognize is the critical difference between a timber rattlesnake den
and a potential den site. Timber rattlesnakes require specific geological, thermal, and
hydrological conditions for hibernation. Some of these are apparent to surveyors in terms
of slope, aspect and rock formations. The formations in which dens are located have an
exposure within an arc from SE to SW, generally more towards the SE. However, there are
many other factors not visible which make most rock formations unsuitable for rattlesnake
denning. Timber rattlesnakes recolonized the northeastern states, including New York
State, following the retreat of the Laurentide Ice Sheet, which was part of the last glacial
period, the Wisconsin glaciation. Most rattlesnake dens in New York are considered to be
continuously occupied for the past 4,000 to 7,000 years, thus they are called ancestral dens.
Snakes hibernate at these specific den sites, ranging 1.5 to 2.5 miles during their active
season but always returning to the same den in the fall for hibernation. They do not move
from den to den or go into other areas identified by surveyors as potential denning sites.
When conducting initial surveys, herpetologists determine what areas have the potential to
be dens and then focus their surveys during the appropriate time and weather conditions
on those sites, either confirming or negating them.
Survey protocols for the Highland compressor site followed NYSDEC and USFWS Timber
Rattlesnake Conservation Action Plan guidelines, as presented in the confidential report.
Mr. Metts claims that two prior studies were used by FERC in their decision. He states that
both of these studies are deficient in both substance and conclusions and are not publicly
defensible as they do not address known and obvious evidence of a potential den located
on the Millennium parcel itself. Yet he previously stated that one report was not available
for public review so he could not make such a statement. And indeed the area which he
proceeds to describe in the Exhibits were specifically addressed in the report.
Another statement made by Mr. Metts claims that two dens were located within 900 feet of
a segment of the Huguenot Loop and the Ramapo M&R Station, apparently hearsay
information since that was not in the report. He also claims that the Highland site was
surveyed yet again and reported on in the January 26th, 2017 submission. This
supplemental submission was limited to two additional sections associated with the
Huguenot loop.
The letter next mentions the 15.73 acres of foraging habitat which will be permanently lost,
but does not mention the mitigation measures for this or the fact that a net conservation
benefit to the timber rattlesnake will be generated as a result of the Project.
Figure 1. Photo of ledge from Mr. Metts letter dated April 28, 2017. Taken from ROW
Figure 2. Photo of same ledge taken from the ROW 5-2-17.
The site in the photograph submitted within the comment letter is not within the
Millennium-owned property. It is actually within property owned by the Excelsior Hunting
Club. The ledge in this picture is not only off Millenniums property, but has a NW
exposure, which is incompatible with rattlesnake denning. Two maps are attached here,
one being an aerial map (Figure 3) showing the ROW, and ledge which is not as visible. The
other map is a GIS terrain map (Figure 4) showing the ledge itself. As can be observed on
this map, the rock formation faces predominantly west to northwest, an unfavorable
exposure for denning. Only about 25% of this rock formation is located within Millennium
property. Due to rumors among local residents of a possible den on this site, surveys were
conducted with special attention given to the portion of this ledge on Millenniums
property. No permission was given by the other property owner to survey their property;
therefore that portion of the rock ledge was not surveyed.
Other factors which contribute to the conclusion that this area is not a den site include the
very limited basking adjacent to the site. Aerial mapping shows no significant basking other
than the cleared pipeline ROW which has some windrow rock from the 2008 construction.
One of the major criteria for a den is to have some naturally occurring permanently open
rocky area for post-emergence basking and gestation.
During emergence surveys this rock on the ROW was surveyed for the presence of post-
emergent basking snakes, and none were found. On 2 May 2017, when the photograph of
the ledge was taken, a survey of the potential basking rock on the ROW was conducted with
no snakes observed. In 2016, a late spring survey was conducted during the time
rattlesnakes are undergoing ecdysis (shedding) to determine if snakes from other dens
would use that part of the ROW. One adult male was located on that portion of the ROW.
Anecdotal reports of seeing snakes near that ledge are certainly possible during the active
season, when snakes may be up to two miles from their dens, which may have led people to
believe the formation was a den. However, on this same date, 2 May 2017, numerous
snakes were seen basking along the ROW at other areas where dens are located near the
ROW. If this were a den, at least one snake would have been observed basking in close
proximity.
Mr. Metts then provided several hearsay accounts with no associated references which
should be considered totally irrelevant. However, to address them briefly, the first Exhibit
#2 has one person saying to another that he poked around and found where they go down
into their dens (did it in the winter). One cannot poke into a crevice and find snakes in the
winter. Even if one were to go to the actual entrance the snakes use, telemetry studies
have shown that the snakes are at least 10 feet and as many as 40 feet from the opening as
they work their way down rock crevices and talus to an area with sufficient moisture and
well below the frost line. He also reports someone saying 151 rattlesnakes were killed
there while digging for the 1901 Rockefeller line. Interior forest dens of similar size to the
ledge he is questioning do not support that size population especially since there is no type
of adjacent basking formation even present. The Bronx Zoo reference is obviously Raymond
Ditmars whose books indicate most of his collecting was done at two now extirpated dens
in the Town of Bethel.
The second Exhibit#2 shows a hand drawn map of a den which, when placed on an aerial
map to scale, covers an area of approximately 1.5 miles by 0.5 miles. This massive polygon
extends far to the north and south of the proposed project and may well encompass an
unknown den since the areas are private property and not accessible.
Exhibit #3, which Mr. Metts presents, is somewhat difficult to interpret, not the GIS part of
it, but the point he is trying to make. He has created three maps the first of which is a
simple terrain map similar to Figure 4 of this letter, only zoomed in much farther. It does
however show how westerly facing the ledge is making it very marginal, at best, for
denning. The heavy lichen coverage which was noted on the rocks during the surveys is
consistent with a western and northern exposure, generally considered incompatible with
denning. So this map does not support his claims.
The slope map apparently shows that the area has a steep slope which he states steep
slope is an important terrain criteria for timber rattlesnake dens. At the end of this letter
are several references from the most widely recognized timber rattlesnake experts which
discuss the phenology of timber rattlesnakes. Mr. Metts statement is simply not accurate.
The paragraph about the aspect map states that immediately adjacent to the site is a
southern-facing plateau and smooth, flat rock surfaces. There may be flat rock surfaces
under the wooded upland habitat as part of the subsurface geology but there are no
exposed ones in the vicinity of the site in question.
Millennium believes that the Timber Rattlesnake Habitat and Occurrence Survey Report
addressed all possible habitat and rattlesnake issues thoroughly and that none of the
information in Mr. Metts letter of April 28, 2017 has merit sufficient to warrant additional
consideration.
Respectfully,
Kathy Michell
Relevant References
Brown, W.S. 1992. Emergence, ingress, and seasonal captures at dens of northern timber
rattlesnakes, Crotalus horridus. p. 251-258 in J.A. Campbell and E.D. Brodie, Jr. (eds.).
Biology of the pitvipers. Selva, Tyler, Texas.
Brown, W.S. 1993. Biology, status, and management of the timber rattlesnake (Crotalus
horridus): a guide for conservation. SSAR Herpetol. Circ. No. 22:1-78.
Clark, A.M., P.E. Moler, E.E. Possardt, A.H. Savitzky, W.S. Brown, and B.W. Bowen. 2003.
Phylogeography of the timber rattlesnake (Crotalus horridus) based on mtDNA
sequences. J. Herpetol. 37:145-154.
I hereby certify that I have this day served the foregoing document upon each
person designated on the official service list compiled by the Federal Energy Regulatory