Forest Society Post-Hearing Memorandum to SEC on Northern Pass

Date Published: 
Friday, January 12, 2018

This document is the post-hearing memorandum filed at the New Hampshire Site Evaluation Committee by the Society for the Protection New Hampshire Forests January 12, 2018.

TABLE OF CONTENTS

GUIDE TO THIS MEMORANDUM... 1

EXECUTIVE SUMMARY.. 2

ARGUMENT. 14

I.    The Proposed Project Would Have Unreasonable Adverse Effects on Aesthetics and Historic and Archeological Sites. 14

A.  The Proposed Project Would have Unreasonable Adverse Effects on Aesthetics. 15

1.   Applicant’s Witnesses for Aesthetics did not Comply with SEC Law.. 15

2.   Applicant’s Flawed Methodology Eliminated Potential Scenic Resources. 17

a.   DeWan Did Not Identify all Impacted Town and Village Centers. 17

b.   DeWan Did Not Identify Scenic Roads Beyond Those Designated as a Scenic Byway and Did Not Consider Private Property Views. 18

c.   DeWan Unlawfully Interpreted the Definition of Historic Resources to Include Only Historic Sites Eligible for or Included on the National Register 21

d.   DeWan Almost Entirely Omitted Cultural Landscapes From its Analysis. 22

e.   DeWan Further Narrowed and Excluded Potential Adverse Impacts by Viewing Resources Only From Self-Identified Key Observation Points and Failing to Adequately Consider Different Perspectives of the Varied Users. 23

3.   The Proposed Project Would Have Unreasonable Adverse Effects on Aesthetics. 29

B.  The Proposed Project would have Unreasonable Adverse Effects on Historic Sites and Archaeological Resources. 31

1.   Applicant’s Methodology for Analyzing Impacts to Historic Sites was Unlawfully Narrow.. 32

a.   Applicant’s Interpretation of Historic Resources is Erroneous. 32

b.   Section 106 Does Not Satisfy SEC Requirements. 36

c.   Applicant Applied too Constricted an Area of Potential Effect 38

d.   Applicant’s Project-as-a-Whole Approach Results in Insufficient Information for Approval 41

e.   Applicant Did Not Complete Effects Tables Compliant with DHR Policy and Did Not Consider Cultural Landscapes in Its Initial Assessment 45

f.    Ms. Widell Initially Did Not Evaluate Effects of Burial on Historic Resources. 46

g.   Applicant’s Analysis of Archaeological Resources Does Not Provide Sufficient Information to Approve. 47

2.   The Proposed Project would have Unreasonable Adverse Effects on Historic Properties. 48

a.   Applicant’s Witness and DHR Conclude the Proposed Project would Have Adverse Effects on Historic Resources. 50

C.  Applicant’s Assessment Cannot Satisfy its Burden Because the Assessment was Completed even Through the Route of the Proposed Project is Still Unclear 52

1.   Applicant has Yet to Complete an Accurate Survey. 53

2.   The Actual Design of the Underground Route is Not Available in this Docket 54

3.   Not-Yet-Filed Exception Requests Demonstrate Lack of Underground Design. 56

D. The Applicant Provided No Assessment of the Proposed Project’s Potential Impacts to the Southern Municipalities. 58

II.   The Proposed Project would Unduly Interfere with the Orderly Development of the  Region. 60

A.  The Proposed Project Would Unduly Interfere with Prevailing Land Uses of Region. 60

1.   Applicant did not Meet its Burden of Proof Because it did not Supply the Subcommittee with Information Required by Site 301.09. 60

a.   Applicant Failed to Produce Master Plans of the Affected Communities and Zoning Ordinances of Host Communities. 61

b.   Applicant did not Describe the Prevailing Land Uses in the Affected Communities or How the Proposed Project Would be Inconsistent with those Land Uses. 63

2.   Applicant has Also not Met its Burden of Proof Because Applicant’s Flawed Methodology Disregarded Effects on Prevailing Land Uses and Orderly Development 64

a.   As Long as a Proposed Project would be in an Existing Right-of-Way, Mr. Varney Generally would not Find Undue Interference No Matter the Intensity of the Proposed Project or Development Abutting the Right-of-Way. 65

b.   Mr. Varney did not Consider Visual Effects on Land Use; He Considered Only Whether the Proposed Project would Physically Interfere With Existing Uses. 68

3.   The Proposed Project would Unduly Interfere with the Orderly Development of the Great North Woods. 71

a.   Pittsburg. 74

b.   Clarksville. 78

c.   Stewartstown. 80

d.   Dixville and Millsfield. 84

e.   Dummer 89

f.    Stark. 90

4.   The Proposed Project would Unduly Interfere with the Orderly Development of the Region with Regard to Conservation Lands. 92

B.  Applicant has not met its Burden Regarding Orderly Development Because Critical Information Concerning Construction is Still Missing or Undefined. 99

C.  The Proposed Project would Unduly Interfere with New Hampshire’s Tourism.. 106

1.   Applicant Must Prove the Proposed Project would not Unduly Interfere with New Hampshire’s Tourism.. 107

2.   New Hampshire’s Unique Tourism Appeal is Outdoor Recreation in Superior Scenic Beauty. 107

3.   Applicant has not Proven the Proposed Project would not Unduly Interfere with New Hampshire’s Tourism.. 110

a.   Mr. Nichols is not Qualified to Render his Opinion. 110

b.   Mr. Nichols Did Not Analyze Impacts of Traffic Delays, Impacts of Adverse Effects to Aesthetic and Historic Resources, or Tourism Businesses. 111

c.   Mr. Nichols’ Methodology was not Sound. 113

i.    Mr. Nichols’ Methodology Severely Lacked Specificity. 113

ii.   Mr. Nichols Misunderstood his Former Clients, Relied on Flawed Data, and Conflated New Siting with Existing Structures. 114

d.   The Proposed Project Would have a Measurably Undue Interference with New Hampshire Tourism.. 118

D.  The Proposed Project would Unduly Interfere with Real Estate Values. 122

1.   Dr. Chalmers Did Not Specifically Analyze this Proposed Project 123

2.   Dr. Chalmers is Not Expert in the New Hampshire Real Estate Market 124

3.   Dr. Chalmers’ Overall Methodology was Too Constricted. 125

a.   Dr. Chalmers was Far Too Restrictive in the Type of Properties he Included in his Study. 125

b.   Dr. Chalmers’ Measure of Changed Views Was Deeply Flawed. 126

c.   Dr. Chalmers Ignored Personal Loss. 130

4.   Dr. Chalmers’ Data Shows Adverse Effect on Real Estate Values. 131

E.   The Subcommittee Should Give Little Weight to Applicant’s Municipal Outreach Efforts. 133

III. The Proposed Project would have Unreasonable Adverse Effects on Water Quality and the Natural Environment 134

A.  The Proposed Project Would Have Unreasonable Adverse Effect on Wetlands. 135

1.   Applicant has not Provided Subcommittee Full and Complete Disclosure of Impacts to Wetlands. 136

2.   It Would be Insufficient to Rely Only on DES Recommendations for Approval 139

3.   Proposed Project is not the Least-Impacting Alternative and Applicant has not Proven the Least-Impacting Alternative is Not Practicable. 144

4.   Applicant’s Assessment of Wetlands Effects for Full Burial is Insufficient 149

5.   Applicant has Inadequately Assessed Wetland Functions and Values. 152

6.   Many of the Temporary and Secondary Wetland Impacts Would Actually Be Permanent Impacts. 156

7.   The Proposed Project Would Have Unreasonable Adverse Impact to Vernal Pools. 163

8.   Applicant’s Proposed Restoration Plan for Impacted Wetlands is Inadequate. 163

B.  The Proposed Project Would Have Unreasonable Adverse Effects to the Natural Environment 166

1.   Applicant Provided Inadequate Information on Flora and Fauna Throughout Entire Impacted Area. 167

2.   The Proposed Project would Result in Unreasonable Adverse Effects on the Natural Environment 168

IV. Issuance of a Certificate Would Not Serve the Public Interest 169

A.  The Subcommittee Should Balance Potential Impacts and Potential Benefits of the Proposed Project with the Purposes and Objectives of RSA 162-H:1 to Ensure that “Issuance of a Certificate will Serve the Public Interest.”. 169

1.   Plain language of RSA 162-H Requires a Balance of Benefits and  Impacts. 170

2.   Legislative History Demonstrates that the Legislature Intended the Public Interest Finding Entail Consideration and Balance of Impacts and Benefits of a Proposed Project 172

B.  The Proposed Project Would Not Serve the Public Interest 173

1.   Adverse Effects Noted Above (Reasonable or Not) Should be Considered. 174

2.   Applicant’s “Establishment” of “Prescriptive Rights” Would Not Serve the Public Interest 174

3.   The Proposed Project Would Adversely Impact Forest Society’s Private Property, Much of Which is Publically Accessible Conservation Land. 178

a.   Kauffman Forest 178

b.   Construction Impacts to Forest Society’s Properties. 178

4.   The Proposed Project’s Purported Benefits are Uncertain, Minimal, or no Longer Exist 180

5.   In Weighing Adverse Effects Compared to the Purported Benefits,  Subcommittee Should Consider the Alternatives. 181

6.   The Public Overwhelmingly Says the Proposed Project Would not Serve the Public Interest 184

V.  Applicant’s Proposed Delegations and Conditions Would Unlawfully Delegate SEC’s Statutory Functions and Role. 184

A.  Applicant’s Proposed Delegations Would Be Unlawful 184

1.   Applicant Made Two Different Delegation Requests. 185

2.   Most of Applicant’s Delegation Request Would be Unlawful 187

B.  The Subcommittee May Not Issue a Condition of Approval Changing the Project 195

CERTIFICATE OF SERVICE. 199

APPENDIX A:  LEGAL STANDARDS. 200

APPENDIX B:  PROCEDURAL HISTORY & PRESERVATION OF ISSUES. 202

 

 

 

 

 

Categories: 
Northern Pass at SECNorthern Pass