May 16, 2003

 

Karen K. Adams

U.S. Army Corps of Engineers

New England District

696 Virginia Road

Concord, MA 01742-2751

 

USACOE File Number 200201108

 

Dear Ms. Adams:

 

On behalf of The Humane Society of the United States (HSUS) and the International Wildlife Coalition (IWC), I would like to thank you for the opportunity to comment on Winergy LLC’s wind turbine permit applications, which you are considering under Section 10 of the Rivers and Harbors Act of 1899. We have some concerns about the proposed construction’s potential for adverse environmental impacts and we strongly support the need for an Environmental Impact Statement (EIS) for each of these proposals.

 

The HSUS and IWC support the development and utilization of renewable energy, including wind energy, and the reduced consumption of fossil fuels. Carbon dioxide, sulfur dioxide, and nitrogen oxide emissions from fossil fuels, as well as oil spills, harm wildlife and habitat. Along with our concern about habitat degradation resulting from fossil fuel use, we are also strongly committed to protecting marine, coastal, and migratory wildlife by opposing direct threats to them which may be posed by permanent anchored structures, which have the potential to fragment habitat, pose a significant migration hazard to birds, and/ or disrupt biologically important behaviors of feeding, breeding, and resting.

 

Procedural and jurisdictional concerns

 

We believe that Section 10 of the Rivers and Harbors Act of 1899 requires the Corps to establish that the applicant owns, leases, or otherwise has a claim to the land proposed for development. Should the applicant fail to produce such documentation, the Corps should not consider the permit application. Once the Corps has validated the applicant’s right to develop the property, the EIS must contain a thorough review of the potential for adverse impacts of each project alone and/or in combination with other proposed projects.

 

Any EIS should also fully incorporate the comments and recommendations for research made by of the coordinating agencies with specific expertise in wildlife and the environment. This includes, but is not exclusive to, comments from the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the

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National Marine Fisheries Service, and the Commonwealth of Massachusetts, as well as the National Park Service, which manages the Cape Cod National Seashore adjacent to the proposed Truro site.

 

We believe that the National Environmental Policy Act (NEPA) was intended to create a process for evaluating federal actions that has at its heart a serious consideration of a broad spectrum of alternative actions. For this reason, we insist that the scoping process not be determined by the applicant but rather involve an overlay of the regional information currently available about:

 

·       geographic and geophysical factors influencing the viability of renewable energy projects (inland and coastal wind speeds for turbines, tidal ranges for wave installations, the availability of sunlight for photovoltaic cells, etc.)

·       wildlife distribution and supporting habitat

·       migratory pathways

·       marine sanctuaries, wildlife refuges, wildlife management areas, state and national parks, and other protected areas.

 

Alternatives may be suggested in public hearings during the scoping process, but the Corps should not limit its consideration of alternatives to those locations specifically mentioned in these hearings. Likewise, we strongly urge the Corps to broaden the consideration of alternatives beyond those that would be permitted under the limited criteria the Corps used to determine alternatives for the Cape Wind Associates proposal to construct wind turbines on Horseshoe Shoals. Specifically, we find three requirements previously stipulated by the Corps to be arbitrary: that alternatives be situated on a single property or contiguous properties; that alternatives be managed by a single, private entity; and that alternatives be no more than 20 percent smaller or larger than the proposed action. We believe these requirements unnecessarily restrict the consideration of reasonable alternatives and we believe that the EIS should consider a range of alternatives that might be excluded by these arbitrary criteria.

 

In a letter to James L. Connaughton of the Council on Environmental Quality and Colonel Thomas L. Koning of the U.S. Army Corps of Engineers on May 9, 2003, The HSUS and IWC urged the Corps to complete a programmatic Environmental Impact Statement that would consider the cumulative impacts of offshore wind turbine permit requests over a wide geographic area. We maintain that since the Corps is processing these applications on an ad hoc basis with no apparent consideration of policy implications and cumulative effects, this programmatic review is necessary. The scope and scale of the permits currently before the Corps in New England alone underscores the need for such a review. However, should the Corps fail to issue a programmatic Environmental Impact Statement, we insist that each of the Winergy project applications require its own EIS for reasons we have set forth below.

 

 

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We acknowledge that three of the proposals are for a relatively small number of turbines; however, we believe that these installations are controversial and furthermore, that they

would set a precedent for future offshore wind turbine installations, as well as other non-extractive offshore uses, that should be carefully evaluated. Moreover, while the impacts of smaller installations of turbines are likely to be less than those of large installations, the potential harm is unknown and significant environmental harm is possible. The construction of smaller installations could, in certain locations, fragment habitat, damage marine mammals and fish by creating harmful underwater noise, and significantly impact the viability of certain imperiled bird populations that have specific nesting requirements. For these reasons, an Environmental Assessment alone would be inadequate for any of the applications under consideration.

 

Site-specific concerns

 

In EIS scoping comments on the Cape Wind proposal for Nantucket Sound, the U.S. Fish and Wildlife Service stated that proper research protocol would extensively utilize remote sensing (radar and acoustic) to identify the spatial and temporal uses of the habitat by birds. The agency also stated that from a scientific and regulatory perspective, the preferred study plan would consist of three years of avian field studies using a combination of horizontal and vertical radar, acoustic detection, direct field sampling, and visual observation by boat, barge, and aircraft. Our organizations supported these recommendations and believe that similar research protocol will be necessary to evaluate the potential environmental impacts of the various Winergy sites.

 

Likewise, we are concerned about the potential displacement of the 36 species of fish noted in the permit application, and the disruption of biologically important nursery and feeding areas. Many of these fish (e.g. flounder, cod, monkfish, and spiny dogfish) are from fish stocks of significant management concern by the New England Fishery Management Council. Though they may also utilize other habitats in the Gulf of Maine, any loss of essential habitat may further imperil recovery of these stocks.

 

In addition to impacts of these various projects on essential fish habitat, we wish to take issue with the applicant’s assertion in the Environmental Notification Forms that the Buzzards Bay and Ipswich Bay projects do not “include estimated habitat of rare species” and that the Buzzards Bay site is not “adjacent to any area of critical environmental concern.” In fact, all of these project sites contain habitat of rare species and many of them are adjacent to critical habitat for rare species.

The site proposed for Buzzards Bay is also in an area that is heavily used by waterfowl and shore birds and is part of the migratory corridor used by songbird species. Nearby islands are used for important breeding habitat by least and roseate terns and piping plovers, as well as gray seals. In addition, other fragile species depend on Buzzards Bay, including endangered Plymouth red-bellied turtles, Kemp’s ridley sea turtles, and leatherback sea turtles, and an additional 16

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protected bird species, including endangered bald eagles and short-eared owls and threatened pied-billed grebes, least bitterns, northern harriers, northern parula warblers, and king rails.

 

Buzzards Bay is also the entry point to the Cape Cod Canal and, although there is limited research on the use of Buzzards Bay by whale species, we know from sightings in or near the entrance to the canal that it is regularly used by harbor porpoises and that sightings of North Atlantic right whales and minke whales are not as uncommon as one might suspect.

 

The Ipswich Bay proposed site is adjacent to the Parker River National Wildlife Refuge (NWR) and Plum Island, which are renowned birding areas and host large populations of migratory water and shore birds. The Parker River NWR was established to preserve habitat for migratory waterfowl, especially the American black duck. The refuge is also an important nesting area for the threatened piping plover and least tern and provides important resting/feeding habitat for shorebirds, wading birds, raptors, and passerines. It is critical that the impact on these bird species be evaluated before considering the installation of turbines that may adversely affect their habitat.

 

The site proposed off the coast of Truro is in an area that is frequented by endangered large whales. This nearshore area to the east of Cape Cod is commonly known as “Finback Alley” to whale watch boat captains because of its regular use as a feeding and transit area by endangered fin and humpback whales. It is also part of the corridor that connects the Cape Cod Bay critical habitat for North Atlantic right whales to their Great South Channel critical habitat. It is in a zone designated by the National Marine Fisheries Service for seasonal management to protect right whales and is under current consideration for addition to their critical habitat. Data from the Plymouth Marine Mammal Research Center include sightings of fin, humpback, and minke whales, as well as Atlantic whitesided dolphins, at this site.

 

In addition, the site near Truro is adjacent to the Cape Cod National Seashore, a 43,600-acre property managed by the National Park Service which includes a 40-mile stretch of pristine sandy beach, fresh water kettle ponds, and delicate sand dunes. The Seashore is home to a number of ecologically important native animal species, including several listed as endangered or threatened. In the strategic plan for the park, the managers stated their intent to improve the status of the threatened piping plover on the Seashore, with a goal of productivity exceeding 1.5 chicks per nesting pair by 2005. The strategic plan also includes monitoring of the endangered roseate tern, which also nests on Seashore lands.

The wind farm site that is proposed for Davis Bank is adjacent to the Great South Channel critical habitat for right whales. It is regularly transited by right whales and humpback whales in their seasonal migrations. The National Marine Fisheries Service maintains a website for right whale sightings as a means for warning mariners and fishermen of the presence of groups of right whales. As you can see by accessing maps on this site, large aggregations of right whales are regularly in this area [see http://whale.wheelock.edu/whalenet-stuff/reportsRW_NE/]. Like

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Nantucket Sound, this area is also part of the migratory pathway for a variety of migratory species and the extent and importance of its use requires in-depth study.

 

Similarly, the three sites proposed for the south of Nantucket Island are part of the migratory corridor for both endangered whales and migratory birds. The impact of fragmentation of their habitat and/or disruption of feeding behaviors requires detailed analysis. Additionally, these sites are as close as 7 miles from Nantucket, which is home to a National Wildlife Refuge and a field station for the University of Massachusetts. 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.

 

Conclusion

 

In summary, we strongly urge the Corps to undertake detailed environmental impact studies of these proposed sites individually and as part of a programmatic EIS process that will consider cumulative impacts.

 

NEPA requires broad public involvement in the permitting process and, to that end, we urge the Corps to consider establishing an environmental working group comprised of scientists and non-governmental organizations to assist in the assessment of these applications and alternatives. We believe this would help fulfill the NEPA requirement that federal agencies invite the participation of any interested persons, including opponents of the proposed action, during the scoping process (40 C.F.R. § 1506.6).  A working group would assist the Corps and the applicant in identifying potential impacts and the studies necessary to assess them as well as assuring consideration of all viable alternatives. 

 

We look forward to taking an active role in assuring that these areas receive adequate environmental review and would be happy to assist the Corps in whatever way possible. Thank you for your consideration of our comments.

 

Sincerely,

 

 

Sharon Young

Marine Issues Field Director

The Humane Society of the United States