March 30, 2022
VIA EMAIL
Richard Hendrick
Albany Port District Commission
106 Smith Boulevard
Albany, NY 12202
[email protected]
RE: SPDES GP-0-20-001 - Commencement of Limited Construction Activities
Port of Albany Expansion Project
Beacon Island Parcel, Bethlehem NY, Albany County
DEC # 4-0122-00322/00002
Dear Mr. Hendrick:
By letter dated March 25, 2022, Albany Port District Commission (APDC) requested to
commence limited construction activities (i.e., tree clearing), and authorization to discharge
pursuant to the Stormwater State Pollutant Discharge Elimination System (SPDES) General
Permit for Construction Activity (GP-0-20-001), for the Port of Albany Expansion Project
(Project) prior to obtaining all necessary permits from New York State Department of
Environmental Conservation (NYSDEC or Department). APDC has not obtained an Air State
Facility (ASF) permit, individual SPDES permit, Part 182 permit, Protection of Waters permits
and Water Quality Certification (WQC) (“Uniform Procedures Act (UPA) Permits”). 1 APDC
asserts in its request that good cause exists based on its committed construction schedule and
specific requirements for site preparation, construction, and operational components. Pursuant
to 6 NYCRR 621.3(a)(4), based on permitting considerations and the specific circumstances
presented here, NYSDEC reviewed the March 25, 2022 request from APDC and determined
that there is good cause to allow the commencement of limited construction activities 2 as further
described herein, without all UPA Permits having been obtained.
1According to Part II(C)(1) of GP-0-20-001, an owner or operator shall not commence any construction activity in any
location until the authorization to discharge under the General Permit goes into effect. Additionally, under Part
II(C)(2)(b) of GP-0-20-001, authorization to discharge under the permit will be effective, among other requirements,
when the owner or operator has obtained, “all necessary Department permits subject to the Uniform Procedures Act
(“UPA”) (see 6 NYCRR Part 621), or the equivalent from another New York State agency” unless otherwise notified
by the Department pursuant to 6 NYCRR 621.3(a)(4).
2 Construction [Activities] are defined in GP-0-20-001 as, “any clearing, grading, excavation, filling, demolition or
stockpiling activities that result in soil disturbance. Clearing activities can include, but are not limited to, logging
equipment operation, the cutting and skidding of trees, stump removal and/or brush root removal. Construction
activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic
capacity, or original purpose of a facility.”
Demonstration of Good Cause
In evaluating whether there is good cause for NYSDEC to grant an exception to the
authorization criterion contained in Part II(C)(2)(b) of SPDES GP-0-20-0001, and allow
authorization to discharge and the commencement of limited construction activities prior to
obtaining all other necessary UPA permits, NYSDEC has considered the following factors:
• Pursuant to UPA regulations, Section 621.3(a)(4), APDC has submitted all applications
for UPA Permits for the Project.
• The requirements of the State Environmental Quality Review Act (SEQR - Article 8 of
the ECL) have been satisfied, 3 as follows: (i) The Town of Bethlehem Planning Board
was established as SEQR Lead Agency (Lead Agency) and a positive declaration was
issued requiring a Draft Generic Environmental Impact Statement (GEIS) for the Project;
(ii) a Final GEIS was accepted as complete and a SEQR Findings Statement was
adopted by the Lead Agency on June 2, 2020 for the Project; (iii) the Lead Agency
determined the Project may have potential to create one or more significant adverse
environmental impacts not evaluated within the Final GEIS and issued a Positive
Declaration requiring a Supplemental Draft EIS on July 6, 2021; and (iv) a Supplemental
Final EIS was accepted as complete and a SEQR Findings Statement was adopted by
the Lead Agency on March 15, 2022 for the Project.
• The requirements of the State Historic Preservation Act (SHPA), 4 have been complied
with for the Project, as follows:
o The Stockbridge Munsee Community issued their opinion in a March 2, 2022
letter that the Project will have No Adverse Effect on Historic Resources.
o The New York State Historic Preservation Office (SHPO) issued a letter on
March 25, 2022, stating that that no historic properties, including archaeological
and/or historic resources, will be Adversely Affected by the Project, provided that
a Restrictive Deed Covenant is filed to protect and maintain the vegetated buffer
along the Hudson River shoreline.
• APDC has prepared a Stormwater Pollution Prevention Plan (SWPPP) for tree clearing
activities.
• On March 29, 2022, the Town of Bethlehem as a regulated, traditional land use control
Municipal Separate Stormwater Sewer Systems (MS4) accepted the SWPPP for tree
clearing activities.
• APDC has indicated that to meet its contractual obligations with Equinor to be
operational by December 1, 2023, tree clearing must take place by mid-April 2022 to
facilitate site preparation, including implementation of a 3-month surcharge program to
address poor soils and settlement concerns.
• APDC has indicated that the UPA Permits for the operational components of the Project
(ASF and individual SPDES permits) require selection of manufacturing and processing
equipment that must follow the Port of Albany procurement process and therefore, not all
information is available prior to the construction bid. This information is required for
NYSDEC to issue the ASF and individual SPDES permits.
3 See Part II.C(2)(a) of SPDES GP-0-20-001
4 See Part I.F(8)(b)(iv) of SPDES GP-0-20-001
Commencement of Limited Construction Activities
In consideration of the factors identified above, NYSDEC is hereby granting a limited
exception to the authorization criterion contained in Part II(C)(2)(b) of SPDES GP-0-20-001.
Upon submission of a complete eNOI, APDC would be authorized to commence limited
construction activities, (i.e., tree clearing), under SPDES GP-0-20-001 and pursuant to the
SWPPP approved by the Town of Bethlehem on March 29, 2022, subject to the following
limitations:
1. No permanent construction, including building supports and foundations, can commence
until the Air State Facility permit is obtained. 5
2. No construction of the Project’s wastewater treatment facility can commence until the
individual SPDES permit is issued and plan approval for the wastewater treatment
facility has been obtained from NYSDEC.
3. No excavation, fill, or dredging activities can commence in any wetlands or other waters
of the U.S., including the Hudson River, Normans Kill, and federally regulated wetlands,
until the following Permits are issued: Part 182, Protection of Waters, and WQC.
4. If tree clearing is conducted within federal wetlands, it must only be done using hand
equipment and no stumps shall be removed.
5. No trees shall be removed within the vegetated buffer area, located along the Hudson
River, in contravention of the Restrictive Deed Covenant that APDC has agreed to
establish.
6. If any bats are observed flying from a tree that will be cut, work activities shall be
stopped immediately and NYSDEC shall be contacted for guidance (see #5 in the
following link: https://www.dec.ny.gov/animals/106090.html).
7. All other applicable terms and conditions of SPDES GP-0-20-001 are satisfied and
complied with.
This exception to Part II(C)(2)(b) of SPDES GP-0-20-001 for the limited construction
activities (i.e., tree clearing) is only authorized until May 15, 2022, or until NYSDEC issues all
UPA Permits, whichever comes first. Please also note that granting of this exception does not
guarantee issuance of the individual permits identified above as the permits are still subject to
public review and comment, and other applicable provisions of 6 NYCRR Part 621. Further, this
exception does not apply to construction activities that would be commenced beyond tree
clearing. As a result, APDC assumes all risks in commencing construction.
Please contact me at [email protected] if you have any questions or concerns.
Sincerely,
Karen M. Gaidasz, Chief
Offshore Wind & Hydroelectric Section
Bureau of Energy Project Management
5 NYCRR 201-2.1(b)(9), specifically excludes site clearing and excavation activities, it states, “[t]he
initiation of physical on-site construction activities which are of a permanent nature excluding site clearing
and excavation. Such activities include, but are not limited to, installation of building supports and
foundations, laying underground pipework and construction of permanent storage structures.”
