As the process of consideration of a permit for the Cape Wind Associates proposal has proven, the selection of alternative sit

Karen K. Adams

U.S. Army Corps of Engineers

696 Virginia Road

Concord, MA 01742-2751

Re: File Number 200201973

March 3, 2003

Dear Ms. Adams:

On behalf of the more than 7 million members and constituents of The Humane Society of the United States (HSUS) and the International Wildlife Coalition (IWC), I am submitting the following comments on the permit application notice from Winergy LLC for the proposed development of a wind farm test tower on Nantucket Shoal, approximately 7 miles southeast of Nantucket.

We are primarily concerned that the right of the U.S. Army Corps of Engineers to issue permits such as this is currently the subject of litigation. Until this issue is resolved, no such permit should be issued. With regard to this particular applicant, there are additional specific concerns. We wish to ensure that the following criteria are considered in the review of this permit application: 1. a substantiation of the initial finding that site-specific adverse impact will “not be substantial for this structure,” in relation to Essential Fish Habitat (EFH) and a more serious investigation into potential adverse impacts to other wildlife, particularly birds and marine mammals; 2. a requirement that the applicant demonstrate land rights, or the ability to secure land rights for this area in the future; and 3. the proper consideration of alternatives as required by the National Environmental Policy Act (NEPA). Moreover, we wish to encourage full inter-agency and public participation in the consideration of this application.

Site-specific adverse impact

The site of the proposed tower is designated Essential Fish Habitat (EFH) and is approximately 7 miles from Nantucket, which is home to a National Wildlife Refuge. The University of Massachusetts has a field station on Nantucket, in part because of the pristine nature of Nantucket's salt marshes, which are extremely important habitat for marine life and migratory birds. More than 40 percent of the land on Nantucket is conservation land, and the island provides habitat to a number of state-listed endangered and threatened species of birds, including the short-eared owl, pied-billed grebe, piping plover, grasshopper sparrow, and northern harrier. Several of these species nest on Nantucket during the summer months and migrate south, and therefore are likely to traverse the area proposed for the construction of the 170-foot test tower and potentially the wind energy generating site that is proposed for construction in the same area.

Additionally, we are concerned that the sound generated during the construction phase of the proposed test tower may result in harassment of marine mammals in the vicinity of Nantucket Shoals. Our concerns regarding acoustic disturbances are exacerbated by the shallow water depth at this location, as shallow water sound propagation allows sound to travel further distances. A report by the Danish Institute for Fisheries Research (2000) indicated that it “is very likely that during the construction period of both the windmills and the cable trace many of the fish species as well as marine mammals will be disturbed”. This same report stated that marine mammals and fish will likely disappear from the area during construction due to turbidity of the water, noise, and other sea bottom activities. Underwater noise impacts on cetaceans can include confusion, disruption of social cohesion, separation, alteration of travel, and/or stranding.

Because of the habitat value of this site, its relative proximity to rare and endangered bird habitat, the likelihood that birds will traverse this area, and the potential that construction could result in the harassment of marine mammals, we urge the full participation of the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, the Massachusetts Division of Fisheries and Wildlife, and other relevant federal and state agencies in the review of this application.

Authority and land rights

We have considerable concerns that the Army Corps may not have the authority to permit a project of this scope. The statute under which this permit is being considered, Section 10 of the Rivers and Harbors Act of 1899, specifically states that an applicant must have property rights to the land on which the structure will be erected or to which it will be anchored. We have no knowledge that the applicant, Winergy LLC, has such rights, or a claim to such rights.

Moreover, as previously stated, it is incongruous for the Army Corps to consider a test tower separate from the overall wind farm. The wind farm tower should be considered as an integral component of the overall wind farm project. We have additional concerns that because the applicant has applied for only a single tower to collect scientific data for this wind farm proposal, the tower itself may eliminate the consideration of other alternatives in clear violation of the National Environmental Policy Act (NEPA).

Consideration of alternative sites

We have demonstrated our commitment to the adequate consideration of alternative sites for anchored structures in the Outer Continental Shelf through our continued involvement in the permit application process of the Cape Wind Associates proposal for the construction and operation of a wind farm in Nantucket Sound. We believe that the Cape Wind proposal process has demonstrated that the alternative sites considered in an Environmental Impact Statement (EIS) are determined by the data collected in the early stages of the planning process. NEPA requires that applicants supply the necessary information – in this case, both meteorological and biological – to ensure an adequate assessment of alternative sites.

If the Army Corps can establish that the applicant has a property right, and thus chooses to consider this permit application separate from the permit for the wind turbines, platforms, and transmission cables (i.e., the other components of the “wind farm”), then the Army Corps should require the applicant erect comparable data towers in alternative sites. In addition to other sites located in state and federal waters, we strongly encourage the consideration of land-based and/or urban harbor sites and the requirement that the data towers in all sites be used to collect acoustic and radar data on avian use of the areas in which they are situated.

Conclusion

We believe that this permit cannot be granted until outstanding legal issues concerning property rights are resolved. Furthermore, this proposed data tower must be considered a part of the larger project and the impact of the entire project and alternatives should be evaluated prior to siting a data tower in this single area.

As we have previously stated in comments on wind farm applications for Massachusetts and Virginia, offshore energy projects have a range of documented impacts on the shoreline, the sea and seabed, and on economically important biological resources. Renewable energy projects must not – and need not – undermine protection of coastal habitats and living marine resources. A thorough evaluation of alternative sites must be conducted by way of the EIS process in order to evaluate fully the range and abundance of protected species using this area and to identify any necessary mitigation measures, if the project is finally permitted. If the Corps wishes to entertain this proposal, and others like it, it is critical that there be a rigorous evaluation of habitat use by protected species and there must be ample opportunities for public comment as well as review and evaluation by relevant federal and state agencies.

Thank you for your consideration of these comments.

Sincerely,

Jessica Almy, M.S.

Wildlife Advocate

The Humane Society of the United States