March 22, 2004

 

Bridget R. Kennedy

Coastal Resource Specialist

NYS Department of State

Division of Coastal Resources

41 State Street

Albany, NY 12231

Fax (518) 473-2464

 

 

Dear Ms. Kennedy:

 

I am submitting these comments on behalf of the more than 7 million members and constituents of The Humane Society of the United States (HSUS), relative to a proposal by Bald Eagle Power to construct two demonstration wind farms in federal waters off the coast of Long Beach and Jones Beach, Long Island, and meteorological/ communication towers at nine sites from Block Island Sound to Belmar, N.J. I apologize that we did not submit comments during the public comment period. We have only just become aware of this proposal and I hope that you will consider these comments even though you are receiving them outside of the formal comment period.

 

The HSUS believes that an environmental impact statement (EIS) should be required of this project as a result of its controversial nature, its likelihood of causing a significant adverse effect on the environment, and its potential for causing adverse impacts to species listed under the Endangered Species Act (ESA).

 

An Environmental Impact Statement (EIS) is required

 

In the following discussion, we note the presence of endangered and threatened species in and around waters proposed for construction of the wind turbines and/or the meteorological towers. We believe the seasonal presence of critically endangered North Atlantic right whales in close proximity to at least one of the proposed meteorological towers, as well as the presence of federally threatened piping plovers and federally endangered least terns along the shores near the proposed demonstration wind farms, may require interagency consultation under Section 7 of the Endangered Species Act. At the very least, the presence of these protected species, each of which is vulnerable to the construction and operation of offshore towers and turbines (as discussed below), should warrant that the New York State Division of Coastal Resources review the project’s potential harm through an EIS.

 

Protected Species of Wildlife Are Likely to be Affected

 

Piping plovers, federally-threatened shorebirds, breed on “Long Island’s sandy beaches, from Queens to the Hamptons, in the eastern bays and in the harbors of northern Suffolk County,” according to the New York State Department of Environmental Conservation. Long Island’s barrier beaches also provide nesting opportunities to federally endangered least terns.

 

Critically endangered North Atlantic right whales migrate seasonally through coastal waters from New England to Florida (McClellan et al 2002) and have been sighted in and around Block Island Sound (Baumgartner and Mate 2003, NOAA Fisheries 2003). Additionally, federally endangered Kemp’s ridley turtles depend on Long Island’s waters during their critical juvenile stage.

 

Other wildlife species, including waterfowl, shorebirds, songbirds, raptors, bats, marine mammals, and turtles use these federal waters and the surrounding beaches for overwintering, migrating, breeding, nesting, and feeding. Any review of this project proposal should consider the effects of the construction, operation, and decommissioning of wind turbines and the associated towers, platforms, and cables on these species.

 

Birds

 

Long Island piping plover nesting beaches are considered globally significant by the American Bird Conservancy.  The Audubon Society also recognizes an area that includes Jones Beach State Park as an Important Bird Area for many species. In fact, according to Audubon, in 1990, 25,000 brant and 10,000 American black ducks were documented using the West Hempstead Bay/ Jones Beach West area.

 

Lido Beach Wildlife Management Area and Seatuck National Wildlife Refuge offer habitat for resident birds and act as stopovers for migrants. Lido Beach is between Long Beach and Jones Beach, and Seatuck National Wildlife Refuge is a barrier beach east of Jones Beach.

 

According to the U.S. Fish and Wildlife Service (FWS), Lido Beach and Seatuck National Wildlife Refuge both provide nesting opportunities for piping plovers and federally-endangered least terns, as well as state-threatened pied-billed grebes, northern harriers, and common terns, and more than 100 other species of birds. The state-endangered peregrine falcon, black rail, black tern, short-eared owl, and loggerhead shrike, and state-threatened king rail and sedge wren are also seen at these two FWS properties.

 

Additionally, though information on precise location of the proposed data towers is lacking in the public comment notice, depending upon their placement, the towers may be near the Fire Island National Seashore and/ or the Amagansett and Wertheim National Wildlife Refuges, all located along Long Island’s southern coast all of which are key high use areas for birds.

 

Fire Island National Seashore is an Audubon Society-designated Important Bird Area that provides nesting opportunities for between 2 and 6 percent of the state’s piping plovers, common terns, and least terns. Audubon states that Fire Island is home to especially high numbers of merlins, American kestrels, and peregrine falcons. According to Audubon, from 1986 to 1995, there was an average of 146 peregrine falcons present on Fire Island each fall; to put that in perspective, in spring of 1998, in the entire state of New York, 38 pairs were present and 69 young fledged (NYS Peregrine Fact Sheet). Fire Island is also a stop-over location for thousands of migrating passerines.

 

Like their sister refuges to the west, Amagansett and Werheim National Wildlife Refuges provide nesting habitat for piping plovers, least terns, pied-billed grebes, northern harriers, and common terns. Additionally, federally-endangered roseate terns are seen at both refuges, according to FWS.

 

The operation of turbines may place bird species at risk in a number of different ways, ranging from direct collisions to habitat fragmentation and alteration of migratory pathways. Turbines may pose a collision risk to hundreds or thousands of seasonal resident or migrant waterfowl, which may rest on the water surface and need to take off near or under turbine blades. Fragmentation of resting or foraging areas by turbine fields may force seasonal residents and migrants to utilize sub-optimal habitat, which may compromise members of sensitive species. Additionally, the alteration of migratory pathways may cause particular harm to small passerines, which often fly with limited caloric budgets.

 

It is critical that the applicant address concerns raised by lighting on the turbines. Certain types of lights used to warn aircraft of towers have been shown to be a hazard to night migrating birds, and adverse weather can lower the altitude of migrating songbirds, placing them at risk as they fly at the height of the turbines. The survey efforts in terrestrial sites that have found bodies or birds and bats beneath turbines (indicating the level of mortality that may be occurring from an operational site) are not possible in a marine environment.  A thorough assessment is needed to determine the potential adverse impacts of the proposed turbines on birds protected under the ESA and the Migratory Bird Treaty Act. 

 

Bats

 

Migrating bats, including red bats, appear to be at special risk from wind farms. For example, researchers at the Mountaineer Wind Energy Center, a 44-turbine facility in West Virginia, collected 475 bat carcasses in 2003, about half of which were red bats. Adjusting for searcher efficiency and scavenging, researchers have estimated the total number of bats killed by the turbines at this one facility may well exceed 3,000 during 2003 - an average of at least 70 bats per turbine per year.

 

New York is home to several species of bats. Though the offshore placement of the turbines reduces risk to the majority of these species, red bats are known to fly over open water and may migrate through the turbine fields. It is important to assess to what extent the waters off of Long Beach and Jones Beach are used by red bats to determine the collision risk for this species.

 

Marine Mammals

 

According to the New York State Museum, a program of the University of the State of New York, 30 species of marine mammals are sighted off the Long Island coast. They include:

 

Status--Common: common (saddleback) dolphin, spotted dolphin, pantropical spotted dolphin, striped dolphin, bottlenosed dolphin, Risso’s dolphin, white-beaked dolphin, Atlantic white-sided dolphin, long finned pilot whale, killer whale, beluga whale, goose-beaked (Cuvier’s beaked) whale, True’s beaked whale, Gervais beaked whale, Atlantic beaked whale, pygmy sperm whale, minke whale, harbor seal, gray seal, harp seal, hooded seal, ringed seal

 

Status--State Special Concern: harbor porpoise

 

Status--Federal and State Endangered (protected by the ESA): sperm whale, fin whale, sei whale, blue whale, humpback whale, North Atlantic right whale

 

All of these species are protected by the Marine Mammal Protection Act. Those most likely to be seen in the vicinity of the proposed wind facility are Atlantic white-sided dolphins and harbor porpoises; harbor, gray, harp, hooded, and ringed seals; and minke, fin, humpback, and right whales.

 

A maze of aggregated turbine towers may displace marine mammals from normal travel or foraging areas into adjacent waters in which they may become more vulnerable to fishing gear or collisions with commercial ships: the two major causes of the current decline in species such as North Atlantic right whales. We note, for example, commercial shipping lanes are just outside of the proposed construction site.

 

The large rip-rap bases needed to anchor turbines will alter current flow, causing sand to either scour or deposit in the lee or fore of the base. This habitat alteration may make habitat unsuitable in places for benthic organisms and may impact sand nesting fish species. Furthermore, the creation of artificial reefs, while beneficial to some species, causes a change in composition of resident flora and fauna.  These two potential effects of erecting large turbine bases raise concerns about consequences to the marine food web.

 

Additionally, continued vessel traffic to and from the site to service turbines and return fuel cells poses a collision risk to marine mammals. Speeds in excess of 13 knots have been shown to pose significant risk of serious injury or death to large endangered whales and this must be considered in weighing impacts of this project.

 

Sea Turtles

 

Federally endangered green, loggerhead, Kemp’s ridley, and leatherback turtles use the waters surrounding Long Island, and endangered Atlantic hawksbill sea turtles are seen occasionally in New York waters. The New York State Department of Environmental Conservation has identified Long Island’s waters as critical habitat for immature (2- to 5-year-old) Kemp’s ridley turtles.

 

It is necessary to assess the effect of a maze of turbines, continual vessel traffic, and potential changes in food availability resulting from the creation of artificial reefs, in evaluating the risk that wind farms may pose to sea turtles. Prior to considering construction of a wind farm in this area, all of these potential impacts must be thoroughly evaluated.

 

Fish and Marine Invertebrates

 

As stated above, turbines will be supported by rip rap which will create artificial reefs. If these “reefs” provide an environment that allows for increase in non-indigenous species, ecosystem effects may range from increasing forage base for some species to increasing competition for food resources and disadvantaging native fish. The potential effect of these new rocky “reefs” in this otherwise sandy bottom needs careful analysis.

 

The Permit Application Raises Important Legal Concerns

 

We understand that the New York State Department of State has undertaken this review because the developer has applied to the U.S. Army Corps of Engineers for a construction permit under Section 10 of the Rivers and Harbors Act of 1899. For this reason, we would like to note our concern that the Army Corps may lack the authority to grant permits to private developers to use the Outer Continental Shelf. In Massachusetts, where a similar proposal is undergoing review, state Attorney General Thomas Reilly stated that the authority to oversee OCS development lies with Congress, not the Army Corps.

 

Any review of this project should address the important questions of whether the developer has rights to the land where the structures would be anchored, and whether the Rivers and Harbors Act of 1899 grants the Army Corps the authority to issue permits for this use of federal waters.

 

Conclusion

 

Offshore energy projects have a range of documented impacts on biological communities; however, renewable energy projects need not undermine wildlife protection.  A thorough evaluation of the site must be conducted by way of an EIS to fully evaluate the range and abundance of protected species using these areas and to identify mitigation measures in the event the project is permitted. We suggest that your department insist on the involvement of the U.S. Fish and Wildlife Service, the National Oceanic and Atmospheric Administration, and experts on the range and habitat use of sensitive species when designing research that would answer questions important to the EIS process. Additionally, the New York State Division of Coastal Resources should request that a Section 7 consultation be conducted prior to permitting these wind farms.

 

Thank you for consideration of these comments.  Please contact me if we can provide more information about the environmental concerns outlined above.

 

 

Sincerely,

 

Jessica Almy

Wildlife Advocate

 

 

Literature and Websites Referenced:

 

Audubon Society. Fire Island IBA: Fire Island (east of lighthouse). http://www.audubon.org/chapter/ny/ny/iba/fireisland.html

 

Audubon Society. West Hempstead Bay/ Jones Beach West IBA. http://www.audubon.org/chapter/ny/ny/iba/westhempstead.html

 

Baumgartner, M, and B. Mate “North Atlantic Right Whale Habitat Inferred From Satellite Telemetry” Proceedings of the North Atlantic Right Whale Consortium Meeting, New Bedford  Massachusetts  November 2003.

 

Kays, R. and Bopp, J. The Mammals of New York State. New York State Museum, Wildlife Science and Conservation Initiative web page. http://www.nysm.nysed.gov/WildSci/nys_mammal.html

 

McLellan, W.A., E. Meagher, L. Torres, G. Lovewell, D.A. Pabst 2002.  “Winter Right Whale Surveys,” Savannah, Georgia to Chesapeake Bay, Va.  Contract Report #50WCNF206001, NMFS. Miami Florida.

 

New York State Department of State, Endangered Species Unit. Atlantic Ridley Sea Turtle Fact Sheet. http://www.dec.state.ny.us/website/dfwmr/wildlife/endspec/atrifs.html

 

New York State Department of State, Endangered Species Unit. Peregrine Falcon Fact Sheet. http://www.dec.state.ny.us/website/dfwmr/wildlife/endspec/pefafs.html

 

New York State Department of State, Endangered Species Unit. Piping Plover Fact Sheet. http://www.dec.state.ny.us/website/dfwmr/wildlife/endspec/piplfs.html.

 

NOAA Fisheries “North Atlantic Right and Humpback Whale Sightings Through 2002”

Presented to the Atlantic Large Whale Take Reduction Team, February 2003. Available NOAA Fisheries, NE Science Center, Marine Mammal Division, Woods Hole, Mass.

 

U.S. Fish and Wildlife Refuge.  No date.  Avian Distribution at the Long Island      National Wildlife Refuge Complex, Amagansett; Lido Beach; Seatuck; and Werheim.  U.S. Fish and Wildlife Service. 12 pages each.  Jamestown, ND: Northern Prairie Wildlife Research Center Home Page.    

http://www.npwrc.usgs.gov/resource/othrdata/chekbird/r5/amag.htm http://www.npwrc.usgs.gov/resource/othrdata/chekbird/r5/lbeac.htm http://www.npwrc.usgs.gov/resource/othrdata/chekbird/r5/seatu.htm http://www.npwrc.usgs.gov/resource/othrdata/chekbird/r5/werhm.htm