ANALYSIS OF LEGAL AND SCIENTIFIC DEFICIENCIES
IN THE ANALYSIS OF
ADVERSE IMPACTS TO BIRDS AND BIRD HABITAT
CAUSED BY THE PROPOSED
CAPE WIND ENERGY PLANT

submitted to

The U.S. Army Corps of Engineers

by

The Alliance to Protect Nantucket Sound

 

 

March 11, 2003

INTRODUCTION

One of the most controversial aspects of the Cape Wind Project is the potential for devastating impacts on bird populations in the Nantucket Sound area.  It is therefore vital that the Army Corps of Engineers (COE) have before it a detailed and scientifically sound analysis of the potential avian impacts of Cape Wind Associate's proposed industrial development as part of its permit application review. 

Unfortunately, a careful analysis of this critical issue does not appear to be forthcoming.  The research protocol that Cape Wind and its environmental consultant/advocate, Environmental Science Services (ESS), have devised will not provide the COE with the data it needs to make a reasoned decision on Cape Wind's application.  Indeed, the avian protocol has been a source of controversy even before the COE announced that it would conduct an environmental impact statement (EIS), as required under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.  From the start, agencies tasked with responsibility over avian resources, and experts in the field, have criticized the assumptions on which Cape Wind and ESS have based their research protocol.

Despite pointed criticism from cooperating agencies and the interested public, the COE has apparently accepted Cape Wind's proposed studies as adequate.  In fact, the COE has essentially allowed the project applicant to determine the breadth and depth of the studies to be conducted for the EIS.  This abdication of primary responsibility as lead agency over the content of the EIS violates NEPA and other federal laws.  More importantly, by allowing a private developer with a keen interest in finding avian impacts to be minimal to determine the scope of the studies, the COE potentially jeopardizes a fragile ecosystem and the health of globally significant avian populations. 

This report, prepared by the Alliance to Protect Nantucket Sound, discusses the legal implications of the COE's failure to require more precise and thorough avian studies.  In addition, with the assistance of two experts in avian behavior, this document identifies the shortcomings in the current protocol and makes recommendations to redress those deficiencies.

DISCUSSION

I.          LEGAL REQUIREMENTS FOR THE PROTECTION OF BIRDS IN NANTUCKET SOUND

All parties with expertise on this issue agree that the avian research now being conducted under the COE's direction is inadequate.  The research designs are flawed; the results presented are biased in favor of the project; relevant information has been overlooked; and additional data need to be gathered before informed decisions can be made.  Unless the measures called for in this report are undertaken, the COE will be in violation of federal law.

The failure to undertake the recommended studies will violate four federal laws.  First, it bears repeating that the COE is violating NEPA by allowing the project applicant to play such an integral role in the EIS development and implementation.^[1]  In fact, the COE's adoption of the applicant's Environmental Notification Form (ENF) as the basis of the NEPA scoping document amounts to an improper delegation of federal responsibilities to a regulated party.  See, e.g., Illinois Commerce Comm'n v. ICC., 848 F.2d 1246, 1259 (D.C. Cir. 1988) (holding that an agency may not delegate to parties its own responsibility "to independently investigate and assess the environmental impact of the proposal before it").  Cape Wind's excessive involvement has undermined the integrity of the process.

In addition, the COE will violate NEPA if it fails to recognize that the bird research protocol, as it currently stands, is inadequate and demands more rigorous research.  Under NEPA, the COE must be fully informed so that it can make well-considered decisions on proposed actions that carry environmental consequences.  Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558 (1978).  The COE must evaluate, among other things, the environmental impact of the proposed action and any adverse environmental effects that cannot be avoided should the proposal be implemented.  42 U.S.C. § 4332(2)(C).

To that end, the President's Council on Environmental Quality's (CEQ) NEPA regulations require that "high quality" environmental information be available to public officials and citizens before decisions are made and before actions are taken.  "Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."  40 C.F.R. § 1500.1; see also Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150-51 (9^th Cir. 1998) (finding that the factual differences between the proposed logging activity and the report used for an earlier logging activity rendered the earlier study insufficient to support a finding of no significant impacts). 

Indeed, the value in consulting with cooperating agencies is the ability to obtain guidance from those expert in an area likely to be impacted.  When there is a disagreement between a lead and a cooperating agency, the "lead agency, of course, has the ultimate responsibility for the content of an EIS.  But [the lead agency] is supposed to use the environmental analysis and recommendations of cooperating agencies with jurisdiction by law or special expertise to the maximum extent possible, consistent with its own responsibilities as lead agency."  NEPA's Forty Most Frequently Asked Questions, 48 Fed. Reg. 18026, #14b (1981) (citing 40 C.F.R. § 1501.6(a)(2)).  Furthermore, "[i]f the lead agency leaves out a significant issue or ignores the advice and expertise of the cooperating agency, the EIS may be found later to be inadequate."  Id.  Even the COE regulations require that it give "due consideration" to the views of the USFWS and MDFW.  See 33 C.F.R. § 320.4(j)(1). 

In the present case, the COE is ignoring the recommendations of the USFWS, MDFW, MAS, and Dr. Nisbet regarding the inadequacy of Cape Wind's bird protocol.  In light of these regulations and case law, it is inexplicable that the COE has rejected expert agency advice in favor of a research protocol fashioned by the applicant itself.  The value of using cooperating agencies is negated if the lead agency ignores their recommendations, especially in favor of the self-interest of the applicant and without explanation or support.  

Moreover, the COE's failure to require the permit applicant to conduct the studies necessary for an accurate scientific analysis thwarts one of the core purposes of NEPA, which is to ensure that the public has sufficient data to evaluate and comment on the project's impacts.  Where the incomplete information is "essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant," the agency is to include the information in the EIS.  40 C.F.R. § 1502.22(a).  Given that the proposed project is estimated to cost approximately $800 million, the costs associated with an additional three years of bird studies pale in comparison.  Certainly, they cannot be viewed as exorbitant.  Unless the situation is remedied, the approach taken so far of gathering the important avian information will not enable the COE to prepare an EIS using "theoretical approaches or research methods generally accepted in the scientific community." Sec. 1502.22(b). The work to date does not meet that standard and cannot produce an adequate EIS under the CEQ regulations.

If the COE bases its review upon the current research and analysis of bird impacts, it will also be in violation of section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536.  The purpose of section 7 is to avoid agency activities that will jeopardize a listed species.  See Sierra Club v. Babbitt, 65 F.3d 1502, 1504 (9^th Cir. 1995).  In this case, the threatened piping plover (charadrius melodus) and the endangered roseate tern (sterna dougallii) are listed under the ESA.  To ensure that agency action will not cause jeopardy, section 7(a)(2) requires the COE to consult with the USFWS, see 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a), which in turn determines whether the action will have effects on listed species.  16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.02.  That determination must rest on the "best scientific and commercial data available."  16 U.S.C. § 1536(a)(2). 

An agency cannot ignore available biological data.  See Connor v. Burford, 848 F.2d 1441, 1454 (9^th Cir. 1988) ("in light of the requirement that agencies use the best science and commercial data available to insure that protected species are not jeopardized, the [federal agency] cannot ignore biological information.")  The views of the USFWS and MDFW, public agencies vested with environmental protection duties to further the public interest, significantly differ from Cape Wind's proposed study.  Based on the extensive comments by the USFWS criticizing the process, as discussed herein, the COE and Cape Wind are not using the best scientific and commercial data available, and indeed appear to be making little effort to satisfy the requests made by the USFWS.  Disregard of these agency concerns in favor of adopting a biased and limited study designed to favor the applicant will fatally undermine the COE's ability to comply with its section 7 obligations.  See e.g., San Luis & Delta-Mendota Water Authority v. Badgley, 136 F. Supp.2d 1136, 1147-49 (E.D. Ca. 2000) (holding that the use of biased underlying data in ESA decisionmaking was arbitrary and capricious). As a result, unless action is taken immediately to adopt the USFWS recommendations, the COE will be in violation of section 7(a)(2). 

In addition to the procedural obligations and jeopardy prohibition of section 7(a)(2), the COE must comply with the affirmative duties of section 7(a)(1) of the ESA.  16 U.S.C. § 1536(a)(1).  Under this provision, the COE is required to "utilize [its] authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered and threatened species."  The Courts have construed section 7(a)(1) to require federal agencies to "do far more than merely avoid the elimination of protected species."  Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 170 (D.D.C. 1977).  This obligation extends to "an affirmative duty to increase the population of protected species."  Id.  The COE obviously violates this duty if it does not even require the studies and analyses deemed necessary by the agencies and interested parties with expertise on avian behavior and habitat.  The Alliance hereby gives notice to the COE of the flaws in its section 7 compliance and provides notice of intent to sue, pursuant to 16 U.S.C. § 1540(g). 

In addition to NEPA and ESA, the COE must also satisfy the Migratory Bird Treaty Act (MBTA).  See e.g., Humane Society v. Glickman, 217 F.3d 882, 886-88 (C.R. Cir. 2000).  Section 703 of the MBTA makes it unlawful for any person "at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to kill, capture or kill . . . . any migratory bird."  The MBTA defines "take" as to "pursue, hunt, shoot, wound, kill, trap, capture, or collect," or to attempt any such act.  50 C.F.R. § 10.13.  This take prohibition covers incidental death or injury to protected species, including indirect and unintentional harm to migratory birds.  See United States v. Moon Lake Ass'n, Inc., 45 F. Supp.2d 1070 (D. Co. 1999).  To avoid violation of the MBTA, it is clear that the COE will need to address the potential impacts of these towers on migratory species and to obtain the appropriate authorization to enable Cape Wind to undertake its proposed industrialization of the Sound.  Clearly, thorough research is a necessary step to that end. 

Furthermore, Executive Order (EO) 13186 directs the COE to take affirmative steps to minimize and avoid take, both direct and incidental, of migratory birds from agency actions.  See Executive Order 13186 – Responsibilities of Federal Agencies to Protect Migratory Birds, 66 Fed. Reg. 3853 (Jan 17, 2001).  The EO directs federal agencies to develop and implement Memoranda of Understanding (MOUs) with the USFWS.  A MOU should contain measures for habitat restoration, monitoring, reporting, conservation promotion, and actions to minimize the unintentional take of migratory birds before January 10, 2003.  The EO contemplates the implementation of the MOUs when new actions/permits are considered.  The COE has not yet complied with EO 13186.

All of these legal violations can be avoided only if the COE immediately corrects the deficiencies in the approach being used to evaluate the impacts of the Cape Wind project on birds.  The remainder of this report discusses the steps that should be taken to address these deficiencies.

II.        THE COE'S REVIEW OF BIRD IMPACTS IS DEFECTIVE ON NUMEROUS SCIENTIFIC GROUNDS

This section summarizes the comments submitted by various parties during the review process and discusses how and to what extent those comments have been incorporated into Cape Wind's bird protocol.  With the assistance of bird experts Michael Morrison and William Evans^[2], the Alliance also identifies the shortcomings of the current bird research protocol and offers suggestions for what research is necessary to support a project of this magnitude with its inherent environmental uncertainties. 

A.        Deficiencies in the Development of the Bird Protocol

The NEPA scoping process is designed to ensure that environmental study protocols are such that they produce data adequate for a proper assessment of the potential impacts of an action.  In this case, however, the scoping process has been deeply flawed for a number of reasons, including the project proponent's excessive involvement in the process.  The bird research protocols adopted by Cape Wind reject suggestions from state and federal agency experts in the study of bird behavior and ignore recommendations from public citizens and groups with particular expertise on the birds of Nantucket Sound.  The result is a superficial and unreasonably short study that will in no way enable the COE to determine the impact of this project on significant populations of birds.  Indeed, the bird research protocol was flawed from the time Cape Wind first submitted its application to the COE and its ENF to the Massachusetts Executive Office of Environmental Affairs in November, 2001.  Instead of developing its own protocol, the COE simply adopted the applicant's ENF, which Cape Wind designed to minimize the importance and magnitude of project impacts and accelerate the review process. 

The hypothesis from which the scoping process has proceeded is that avian risks are small and bird use is low for the Horseshoe Shoal area.  See Attachment 3.  This conclusion is largely the result of the research and analysis conducted by Dr. Paul Kerlinger of Curry and Kerlinger, LLC.  Using Dr. Kerlinger's work, the ENF identified the following avian studies as necessary:  1) aerial studies of Horseshoe Shoal in July-September to determine whether certain protected species were present and in what numbers; 2) late autumn-winter study of sea ducks, loons, diving birds, and alcids to determine presence and number; and 3) an evaluation of impacts of offshore wind energy projects based on work now being conducted in Europe and methods and techniques for monitoring.  Cape Wind had conveniently already completed many of the proposed studies when it submitted the ENF. We additionally point out that Dr. Kerlinger did not follow, or even reference, the protocols and recommendations made by the National Wind Coordinating Committee (NWCC, December 1999) in "Studying Wind Energy/Bird Interactions: A Guidance Document." See http://www.nationalwind.org/pubs/avian99/Avian_booklet.pdf. Although the NWCC document does not include specific recommendations for offshore developments, the recommendations it provides regarding the general types and intensities of studies are applicable to any development. 

Flaws in the ENF were immediately apparent.  The MDFW vigorously objected to a number of conclusions claimed in the ENF.  Attachment 4.  The MDFW expressed its "serious concerns" about Cape Wind's proposal, explaining that "the installation of turbine towers at this location in Nantucket Sound could have potentially devastating impacts on globally significant populations of migratory birds moving in and out of Massachusetts, as well as between Cape Cod and the Islands."  The MDFW viewed Cape Wind's conclusion that avian risk was minimal as based on "inadequate or no data at all."  The state agency had "discovered no systematically collected data on birds in the vicinity of Horseshoe Shoal."  (Emphasis added.)  In addition, the ENF's proposed tern study "ignores substantial periods of the year [and] also the possibility of substantial variability in the temporal and spatial utilization of the Horseshoe Shoal environment."  The MDFW also stated, "Horseshoe Shoal is virtually at the very center of the core Piping Plover breeding range on the Atlantic Seaboard."  (Emphasis in original.)  Consequently, "[a]lthough it would be difficult to document, we feel with virtual certainty that some plovers must fly through the Project Area at times and any impact to this population due to collisions would not be acceptable."  The MDFW concluded, "several years of work may be required using combinations or aerial or boat surveys, sound recordings and radar surveys."  Unfortunately, the MDFW has not been invited to participate as a cooperating agency due to complex jurisdictional issues presented by this proposal and, consequently, has been relegated to communicating through the USFWS to obtain information regarding the avian protocols.  Attachment 5.  Nonetheless, MDFW must be regarded as an expert agency on this issue and its recommendations taken seriously.

The USFWS followed with its own similar set of criticisms by letter of December 31, 2001 to Secretary Robert Durand of the Massachusetts Executive Office of Environmental Affairs.  Attachment 6.  In that letter, USFWS stated that the bird analysis should include "all seasons of the year, all usable airspace, all climatic conditions and all daily temporal periods in order to capture all life cycle activities of the avian species using the project area."  In addition, USFWS explained that this project requires "a vigorous analysis of daily and seasonal temporal patterns of bird activity, weather conditions, lighting conditions, and whether any features or operational characteristics of the wind turbines individually or in aggregate create or induce hazards to migratory birds." 

Likewise, MAS criticized Cape Wind's ENF as presenting "an extremely sketchy outline."  Attachment 7.  MAS "do[es] not agree with the ENF's unsupported conclusion that avian risks are small or that bird use in the area is low."  Noting that "[m]illions of birds traverse the Sound each year," the ENF's conclusion is not supported by sufficient data on:  1) interactions between birds and large scale offshore wind farm arrays; or 2) actual bird usage of this section of Nantucket Sound.  To remedy these deficiencies, MAS "recommend[s] that at least one type of bird survey be conducted on a frequency of at least one day per week throughout the year, with specific methodology aimed at gathering information during breeding, migrating, and wintering seasons, as well as during varying times of day, meteorological, and tidal conditions." 

Dr. Nisbet also objected to the ENF, repeatedly citing the need for "fuller and more precise information" to assess the potential risks to various species.  Attachment 8.  Also problematic is the ENF focus on daytime observation.  Instead, MAS stated that it is necessary "to study the movements of birds through the project area at night (including late evenings and early mornings) and radar is the only feasible method for obtaining the required information."  Dr. Nisbet, in fact, offered to review planned studies and proposals free of charge. 

Despite strong comments from these parties, each of which possesses considerable expertise in the area of avian behavior, Cape Wind has largely ignored these suggestions, and the COE has done nothing to rectify the review.  Compared to the detailed information required by the parties with bird expertise, ESS is undertaking the bare minimum.  As of March 8, 2002, there were to be only five winter aerial surveys.  Attachment 9.  The over flights would be conducted in good weather only, with two flown at dusk or dawn.  The other three were scheduled for daytime hours.  ESS also indicated that a mere total of 16 hours of observations would be conducted in the month of April, and in May, it would conduct radar studies from two hours before dawn to two hours after sunset with three ten-minute observation periods conducted randomly per hour.  During that same period, Cape Wind would simply rely upon non-continuous bird observations during the daylight hours, plus two additional over flights.  No night-time studies (only late-evening) were scheduled, and no continuous radar was planned.

ESS slightly expanded the protocol by letter dated April 15, 2002 to the COE.  Attachment 10.  In that letter, ESS indicated that it intended to conduct an additional four transects in the winter of 2002-03 and to expand the April studies by increasing the 16 hour study proposed in March by only four hours.  In addition, ESS proposed to conduct one overflight study in July, three in August, and one in September.  In addition, ESS proposed radar studies for September 2002 relying on the same protocol used in the spring (two hours before dawn to two hours after sunset with three ten-minute observation periods conducted randomly per hour).

The USFWS deemed ESS's proposed additions to be "not sufficient to adequately characterize the spatial and temporal uses of avian and other resources at the alternative sites in Nantucket Sound and hence, to make siting decisions on a macro or micro scale."  Attachment 11.  The USFWS strongly recommended that the COE and Cape Wind adopt a three-year study plan, stating, "we believe the NEPA process for this highly visible and controversial project not only demands but requires this information to adequately evaluate the effects of the proposal on avian and related resources at alternative sites in Nantucket Sound."  The USFWS also indicated that section 7 compliance under the ESA would be necessary, and it recommended:  1) on-site inspection for presence and number of listed species; 2) opinions of experts on the species; 3) literature review; 4) analysis of the effects on the habitat and species, including the cumulative impacts; and 5) an analysis of alternatives.  The USFWS reiterated the need for a three-year study in a May 16 letter to the COE.  Attachment 12.

The Cape Cod Commission and MAS echoed the need for a thorough three-year study.  Attachments 13/14.  Heidi Roddis, Senior Policy Analyst with MAS, stated that "[t]here is so much annual variation in bird activity that a bare bones one year study will justifiably be challenged as inadequate."  Attachment 14.  Roddis noted that the seaduck surveys were started late, and that the unusual nature of winter 2002 may preclude the applicability of the collected data.  Roddis, concluded, "[i]t will not benefit the proponents or the regulators to set up a process that will be challenged due to clearly inadequate information."  In addition, the NWCC (1999) guidelines mentioned above call for several years of pre-project data collection, especially when little is known about a prospective location.  Such data collection should include multiple potential locations so alternative development strategies can be pursued.

Another major deficiency cited by the commenters is the failure to employ 24-hour radar analysis.  The USFWS indicated that remote sensing techniques (radar and acoustic) should be operated continuously 365 days per year using a combination of land-based and sound-based facilities.  Attachment 11.  MAS concurred with USFWS's assertion and reiterated the need for radar, for continuous coverage, rather than sporadic coverage obtained via boat surveys.  Indeed, Roddis indicated that radar is "the single best way to get big picture info on how many birds pass through the site, in what directions, and at what altitudes.  We need to know this for overall avian risk assessment even if we do not know the precise species of each individual blip on the radar."  Attachment 15. 

Obviously, based on its track record and desire to complete processing of the permit as quickly as possible, Cape Wind cannot be expected to undertake these studies on its own.  Direction to do so must come from the COE.  Unfortunately, such guidance has not yet been provided.  Instead, the project applicant is going forward with its superficial treatment of the serious bird impact problem, and the Corps has acquiesced.  As summarized by the USFWS, Cape Wind's studies "simply do not go far enough to provide an adequate information base for this NEPA process.  In particular, it is absolutely necessary to utilize remote sensing technology (radar and acoustic) extensively to identify the spatial and temporal uses of avian resources on Nantucket Sound. Visual observations (which are the mainstay of the applicant's proposal) are generally limited to fair weather conditions during daylight hours, creating very significant limitations on temporal periods in which investigations can be conducted and, by extension, spatial limitations as well."  Attachment 11.  "We remain convinced that the 3-year study . . . is necessary for this new precedent setting, large scale offshore facility."  Attachment 12.

Despite the active participation and helpful suggestions provided by the USFWS, MDFW, MAS and the public, the COE has not drafted the final NEPA scoping document in a manner that remedies the identified problems.  It provides vague guidelines for study, and provides that the bird study "should" describe current avian usage (species, number, type of use, spatial and temporal patterns) in alternative sites to establish a baseline data set.  The study should also utilize information collected by other studies to provide a three-year baseline data set, if available, but no three-year study is specifically required.  New data will be collected via remote sensing through radar and direct observations through aerial reconnaissance and boat-surveys, but not continuously or in the manner called for by the expert outside reviewers.  Attachment 16.

In a COE document dated November 2002, the avian studies appeared to be slightly modified.  Attachment 17.  The document indicated that 22 surveys had been conducted as of November (each of which covered approximately 260 linear miles of transect covering an area of 65 square miles), and 16 more were planned through June 2003.  Two boat surveys were completed by November as well, using the same transects as the aerial survey.  Seven non-systematic boat surveys were conducted, with "several" more non-systematic surveys planned for 2003.  Importantly, there are no plans to extend the two months of radar surveys previously planned by the applicant.  As discussed below, the approach reflected in this protocol remains seriously deficient, and fails to meet the recommendations of all outside bird experts who have considered this project.

B.        Substantive Deficiencies with the Current Bird Protocol

1.         Insufficient Impact Analysis on the Endangered Roseate Tern and Threatened Piping Plover

The proponent's surveys for roseate tern are inadequate for documenting potential impacts on this species.  The primary gap in knowledge concerns nocturnal movements through the project area. More than 40% of the North American population of roseate terns are likely to pass through Nantucket Sound in spring and fall migration.  While diurnally moving terns may have the visual capacity to avoid turbine collisions in conditions of good visibility, tern movements across the Sound at night may be subject to significant collision risk.  Cape Wind's current research efforts are solely geared toward studying diurnal movements and behavior of terns.  It is imperative that research on the nocturnal flight behavior of terns be carried out before a permit application is processed.  Many tern species are known to migrate both nocturnal and diurnally.  The only study techniques capable of documenting nocturnal movements of species are radar, acoustics and telemetry. Caspian and royal terns are highly vocal in their nocturnal migrations, and the acoustic technique is likely to be effective in monitoring tern traffic in the Sound.

Telemetry is more intrusive on individual birds but has been used effectively to study movements of birds.  Because of the proclivity of terns to move substantially at night, and because of potentially increased collision hazard at night, it is important for the COE and Cape Wind to consider one or both of these techniques to document the nocturnal activity of roseate tern in Nantucket Sound during their migration and post-breeding periods.  Similarly, the same techniques could be used to characterize piping plover nocturnal movements.  As with the other monitoring projects, a three-year study would be recommended to account for anomalous seasonal variations.

These studies are extraordinarily important, not only for the proposed project, but for future wind farms along the Atlantic Coast that may impact these species.  Any take of these species is significant.  Because it is very difficult to quantify mortality at offshore wind farms, assessing risk by documenting avian traffic patterns is essential.

2.         Incomplete and Suspect Radar Studies

Despite the repeated recommendations by USFWS, MDFW, MAS, and Dr. Nisbet, the COE and Cape Wind apparently have not modified the fall 2002 radar monitoring program.  According to the record, the radar monitoring program was carried out in September only.  There is a significant nocturnal flight of birds migrating at low altitudes in October and early November.  Attachment 8.  By limiting the radar monitoring program to September, the October/November flight is not being assessed.

Also of concern is the contractor hired to carry out the radar work.  A literature search of peer-reviewed ornithological publications reveals no papers on radar work by Geomarine, Inc. or by any individuals who execute their radar work.  Although Geomarine appears to have conducted considerable radar work for the US Air Force regarding military aircraft/bird collision hazard, this material is not available for review to validate their methods and qualifications regarding detection of low altitude movement of nocturnal migrants.  In fact, Geomarine's radar work for a recent EPA project in which Cornell and Clemson Universities were involved was unsatisfactory, leading EPA to rescind Geomarine's contract.^[3]   

If Geomarine is to continue with the radar work on this project, someone of Dr. Nisbet's recognized experience with radar should be contracted to cross-examine the radar data.  It is imperative that the work stand up to peer-review so that questions about the potential impact on birds are adequately answered, and doubts about this issue do not exist.  If Cape Wind is going to contract further radar work, the scope of the work must meet the optimal criteria recommended by USFWS and Dr. Nisbet – i.e., a three-year radar study monitoring the migration seasons (mid-April to late May and late August to mid-November) daily from early evening to mid-morning.  Thorough studies are needed during all migration periods for a three-year period at minimum to characterize the quantity and altitude of bird migration through Nantucket Sound, and in particular to assess the impact that adverse weather conditions (e.g., fog, rain, high winds) have on bird migration dynamics. These analyses are necessary to make any meaningful predictions on potential bird fatalities if construction occurs.

3.         Inadequate Preliminary Phase I Avian Risk Assessment by Dr. Paul Kerlinger

As noted above, the preliminary risk assessment in Cape Wind's ENF was based on work conducted by Dr. Kerlinger.  Dr. Kerlinger's preliminary avian risk assessment does not bring pertinent avian literature to view for the stakeholders in this proposed project.  See Appendix A.  Instead, he oversimplifies the dynamics of nocturnal songbird migration through Nantucket Sound and thereby erroneously dismisses any potential impact of the proposed project on night-migrating songbirds.

In a similar manner, Dr. Kerlinger tries to build a case that tall man-made structures under 500-ft. high are not a concern.  Dr. Kerlinger claims, "no mass mortality events of night migrating or other birds have been found at communication towers less than about 500 feet in height."  Attachment 3 at 2.3.5.  This claim is misleading, designed to discount potential impacts to night migrating songbirds.  In fact, there have been no long-term studies at communication towers under 500-ft and only a few short-term studies.  While some of the short-term studies conclude that there is little mortality, other studies in fact indicate that significant mortality may occur.  See Appendix B.  Thus, of the studies that have been completed, no consensus has been achieved, probably because of site-specific variability in avian behavior.  Further, communication towers do not have rotating blades, which are the major cause of bird fatalities in wind developments. Combined tower and blade (at their apex of rotation) height is an issue, especially during inclement weather when birds tend to fly relatively low.

In fact, there is a long history of significant bird mortality at lighthouses (and lightships or lighted ships) along the New England Coast and surrounding regions.  Notably, these light structures are typically less than 200-ft high.  This history indicates that the height of the structure is not necessarily the critical factor for causing a kill; rather the critical factors are the nature of the lighting combined with foggy or low cloud ceiling weather conditions and a steady stream of migrating birds. See Appendix A for a list of pertinent lighthouse mortality references.

Dr. Kerlinger suggests that there are now more than 20 wind farm mortality studies in North America, and the documented avian mortality is indeed small at most developments.^[4]  However, it is important to recognize that most of these studies were carried out in western North America, and therefore addressed different species, different habitats, different migration routes, and different behaviors.  Additionally, the absolute number of kills carries little meaning unless it is compared to the overall population size of the species in question.  That is, it is the number of kills relative to population size that is of importance in evaluating risk.  As such, even a few kills of a rare species, such as those at risk from the Cape Wind project, can have a significant population impact.^[5]

There is also very little evidence that any tall man-made structures in the west kill significant numbers of night migrating birds.  In contrast, collision-related avian mortality is a well-documented phenomenon in the eastern United States.  Using western studies as the basis for extrapolating mortality rates for eastern wind energy projects, particularly those sited offshore, is therefore scientifically unsound.  In fact, it may be legitimate to exclude western studies in the comparative consideration when evaluating how a wind farm in eastern North America might impact night migrating birds, given the significant differences in avian habitat and behavior.  Moreover, significant avian mortality at wind farms is not unheard of in the western United States.  Altamont Pass, located in central California, has caused significant mortality.  Thus, the potential for significant numbers of kills does exist, and uncertainty is substantial when venturing into new ecological locations.

When one in fact looks closely at the data, there are only a handful of published mortality studies at wind farms in eastern US.  None of these studies is for a coastal location where radar records have shown high densities of night migrating birds, such as Nantucket Sound.^[6]  Furthermore, none of these studies were conducted at locations with frequent fog and low cloud ceiling.  Therefore, the data upon which Dr. Kerlinger relies in his Preliminary Phase I Risk Assessment are tangential, and largely inapplicable to the proposed project.  Dr. Kerlinger's conclusion for dismissing this proposed project's potential impact to night-migrating songbirds is unsupportable.

Dr. Kerlinger's assessment of low-level movement is no less problematic.  Dr. Kerlinger asserts that the frequency of low-level movements at night by any of the bird groups is unknown for the project area.  Attachment 3 at 3.3.  Yet in his assessment, he frequently states that most of the songbird migration is at high altitude (presumably well above the height of the turbines).  However, given that Dr. Kerlinger has not conducted radar studies in the region, more credibility should be accorded to Dr. Nisbet's opinion in this matter.  Dr. Nisbet certainly concurs that there is a vector of high altitude flight over Nantucket Sound. But he also states there is a large flight of lower altitude birds heading in WSW directions in October and early November.  Dr. Nisbet also reveals that his radar equipment was unable to detect reliably birds below 600 ft.  Therefore, Dr. Kerlinger does not have grounds to claim that most of the songbird migration over Nantucket Sound is at high altitudes, and his risk assessment fails to cite Dr. Nisbet's extensive and very pertinent radar work in the region.  It is problematic that radar data were not collected in fall 2002 at the time [October, early November] when Dr. Nisbet's data suggest that significant flights of low level birds may occur.

Additionally, Dr. Kerlinger repeatedly notes of the lack of quantitative data on bird abundance and movements throughout much of the project area.  Although the Alliance agrees with need for additional study, this paucity of data calls into question Dr. Kerlinger's conclusion that the potential impact with regard to bird kills is minimal.  Apparently, his conclusions are based on the lack of substantial kills at many other onshore wind facilities in the western United States.  As summarized above, this conclusion is inappropriate and premature without supportive data.  Offshore wind farms in Europe are known to cause birds to change their pattern of behavior.  In addition, studies are ongoing in Europe to try and better understand the influence of offshore wind farms on animals, including birds.  Thus, there is too much uncertainty regarding the influence of offshore wind farms on birds and other animals to warrant review of the Cape Wind proposal.

4.         Inadequate Assessment of Impact of Aviation and Shipping Obstruction Lighting on Nocturnal Bird Activity

Lighting may be a significant contributing factor to bird mortality at the proposed wind farm.  Because there is no precedent for such a lighted array of structures anywhere in US coastal waters, and because it is well-recognized that lights in foggy or low cloud ceiling conditions may disorient night migrating songbirds and some pelagic birds, see Appendix A, research into the lighting issue is paramount.

Dr. Kerlinger's statement that "standard ship navigation beacons have not been demonstrated to attract birds and, therefore are not likely to increase risk," see Attachment 3 at 4.5.3, is unfounded.  No citation was provided to support this conclusion, and we would be interested to know the basis of this far-reaching comment.  This component of turbine lighting should not be so simply discounted with respect to impact on birds, especially considering the massed emplacement of the turbines proposed on the shoals.

In addition, the lighting systems on towers cannot be fully evaluated until studies underway by the USFWS coordinated Communications Tower Working Group (CTWG) are concluded.  These studies are in the process of determining the role of flash rate and color of lights in leading night migrating songbirds to congregate around tall structures with aviation obstruction lighting.  Attachment 18.  Over the next two to three years, these studies will reveal what the safest obstruction lighting regime is for these species.  It is imperative to evaluate these results before this project review proceeds.  More research is necessary on the impact of lighting on a wide range of water birds, and the Alliance urges the COE and Cape Wind to coordinate with the CTWG on these research needs.

C.        Outline for Conducting Impact Assessment Study of Potential Impacts of Wind Developments on Birds

The following protocol outlines the basic steps that should be taken when evaluating the potential and realized impacts of a wind development on birds.  These recommendations can be used as a starting point for development of specific sampling designs for the Cape Wind project.

1.         Direct Effects

a.         Fatalities:  Because fatalities cannot be assessed prior to project development, initial risk assessment must be based on time and site-specific behavioral analyses.  This is done by closely observing birds that use each proposed site (all alternative sites) in "zones of risk."  These zones correspond to the approximate rotor-swept area that will be occupied by the proposed turbines.  Simple sampling methods are available for such analyses that can easily be adapted to offshore locations.  All behavioral sampling must be stratified by time of day and night, season, weather conditions, and other factors considered relevant for the specific location.

b.         Specific Fatalities Studies:

l          Behavioral sampling is usually conducted weekly or bi-weekly at each proposed location.  The geographic extent of the project determines how many sampling stations are needed.

l          Stratify sampling as indicated above.

l          Results should provide quantitative prediction of potential risk to birds (e.g., frequency of passes through rotor plane).

l          Results should be linked with estimated population abundance so an estimate of the relative proportion of potential fatalities can be calculated (i.e., risk relative to population size).

c.         Habitat loss and degradation:  It is critical to recognize that "habitat" is a species-specific concept.  Thus, there is not an "offshore habitat" per se.  Habitat is defined as an arbitrary (user-defined) area around an animal.  Additionally, it must be recognized that each species exploits a specific niche.  Relevant niche factors include the species and size of prey consumed, air and water temperatures, and so forth.  Thus, any development that impacts a niche dimension can also negatively impact a species (e.g., a change in the distribution of prey of certain size classes).  These issues must be evaluated for all potentially influenced species.  Additionally, it is the availability of habitat and niche factors that is of critical importance and not the absolute abundance of a factor.  For example, if prey remains equally abundant both pre- and post-construction, but a bird species will no longer use a site, then those prey become unavailable.

d.         Specific Studies/Habitat Loss:

l          Quantify distribution and abundance of habitat by species.

l          Quantify availability of habitat and key niche factors by species.

l          Must include preferred as well as alternative sites in analyses.

2.         Indirect Effects

a.         Behavioral changes:  Birds could alter their use of a site based on positive or negative reactions to development.  Positive effects include attraction because of changes in perching or foraging opportunities; negative effects include abandonment of the site because of visual obstructions (turbines), human activities (water or air traffic), and related factors.  This area of analysis links closely with the overall activity pattern of animals and the relationship with habitat availability.  That is, if birds abandon an area they must have an alternative area of at least equal value to occupy.  Otherwise, the development will have a substantial albeit indirect impact on the species in question.

b.         Specific Studies:

l          Analysis of bird movements in, around, and through each alternative development location.

l          Stratify samples as outlined above.

l          Determine where birds are coming from (e.g., onshore roosting or nesting locations) to quantify off-development site impacts.

CONCLUSION

As explained herein, there are considerable shortcomings with the avian protocol, as currently established by the COE.  These shortcomings are sufficiently severe as to prevent compliance with federal statutes and to undermine the validity of the environmental impact review.  We urge the COE to revisit the current scope of the avian protocol and require Cape Wind to follow the recommendations of the federal and state agencies, which have been echoed by MAS and Dr. Nisbet.