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By GARRY RAYNO, InDepthNH.org
CONCORD — Intervenors and Counsel for the Public want state regulators to disregard negotiated conditions between Seacoast Reliability Project developers and environmental regulators.
The groups claim agreements between Eversource and the Department of Environmental Services were completed after the state environmental agency issued its final decision on the high-voltage transmission line project between Portsmouth and Madbury.
The 12.9-mile transmission line is needed to address the growing demand for electricity in the Seacoast area, according to Eversource officials, who contend without the project, rolling blackouts may occur.
The environmental agency issued a “revised final decision” in October that changed a number of conditions in its original decision, including the timing of a test drill for the controversial jet plow method to place cable under Little Bay.
Other changes include eel grass studies, refueling requirements and separation of different soil types during construction.
Much of the controversy surrounding the project concerns the underground section through Little Bay, the method that will be used to place the cable, and the section through Durham.
The project costs would be included in all New England transmission rates because it is a reliability project approved by ISO (Independent System Operator)-New England.
In a filing Friday, developer Eversource claimed the revised decision made some corrections to the original decision and insignificant changes that the company and DES negotiated subsequently.
But attorneys for the Conservation Law Foundation, Durham, University of New Hampshire, Newington and others claim the DES’s revised final decision usurps the Site Evaluation Committee’s authority to decide what conditions should be placed on the project if it is approved and did not allow intervenors to properly rebut or cross-examine witnesses during the adjudicative hearings.
The intervenors want all testimony related to the DES’s revised final decision to also be stricken from the record along with the decision.
The Counsel for the Public said there has been ample opportunity to testify and rebut the revised decision, but believes the changes should have been proposed as amendments from the developer presented to the SEC to decide, not as a revised decision from the DES.
“. . . The statute clearly contemplates a procedure whereby state agencies with permitting or regulatory authority make a ‘final decision,’ the Applicant and intervenors have the opportunity to present evidence and make arguments regarding the appropriateness and scope of the conditions proposed by each agency ‘final decision,’ and the Subcommittee then deliberates on the entirety of the evidence and makes the ultimate decision to either deny or grant a Certificate and to impose necessary conditions,” wrote Christopher Aslin, Counsel for the Public.
“Characterizing the document as a ‘Revised Final Decision’ exceeds the statutory authority of NHDES and contravenes the statutory process and authority of the SEC.”
But attorney Barry Needleman, representing Eversource, said in his objection to the motion to strike the revised final decision, that the SEC requested DES’s comments on the proposed changes to its conditions and that is what the revised document incorporates.
“By working with the Department, the Applicant/permittee successfully obtained clarity in the permit conditions. The Subcommittee is still free to amend permit conditions if it feels necessary,” Needleman wrote. “Working with the Department to modify conditions of a Department-issued permit does not usurp the Subcommittee’s authority in anyway.”
Last week, Eversource filed a motion to open the record to allow new information into the record that the SEC will use to make a final decision on the Seacoast project.
Needleman said the request would provide new information that would allow the Site Evaluation Committee to make its full consideration of the project as regulators begin deliberations on the project later this month.
The information at issue is the project’s projected impacts on three specific historic and scenic resources: Merrill Hall on the University of New Hampshire campus in Durham, four historic buildings along Woodbury Avenue in Newington including the Isaac Dow House, and the General Sullivan Bridge.
Newington and others said they need additional time to submit their final briefs if the new information is allowed into the record.
On Friday, the SEC subcommittee chairman Patricia Weathersby gave Newington until Nov. 21 to file its final brief, while the Counsel for the Public and other intervenors have until Nov. 15 — a two-day extension — to file their final briefs.
In order to give SEC members time to read the final briefs, she cancelled the scheduled start of project deliberations Nov. 27 and instead deliberations will begin Nov. 28.
Also Friday, Weathersby granted a protective order requested by Eversource to shield archaeological information generated for the project for sites in Lee, Madbury and Durham.
Deliberations will be at 49 Donovan Street in Concord.
Garry Rayno may be reached at firstname.lastname@example.org.