Comment Ends on Wind Farm

United States Army Corps Closes Period for Public Comment on Draft Impact Report; State Review Is Next

By IAN FEIN

The comment period for the hotly debated Cape Wind project came to a close yesterday afternoon, effectively ending the public's opportunity to weigh in on the wind farm until the U.S. Army Corps of Engineers completes its final environmental review.

Since it was announced in November 2001, the proposal to build 130 wind turbines on Horseshoe Shoal in Nantucket Sound has been the source of sharp divisions around the region - where environmentalists on both sides of the issue have staked out their territory and fervently argued their cause. If approved, the project would be the first offshore wind farm in the country.

The divisions grew deeper in recent months, when thousands of individuals and organizations lined up to submit their comments to the Army Corps and the Massachusetts Environmental Policy Act office. There was a flurry of activity this week in particular, as groups rushed to meet the Thursday deadline for comment on the Corps draft environmental impact statement.

The 3,800-page statement released in early November was widely favorable to project developers. It found that the wind farm would have significant economic and air quality benefits and few long-term negative impacts.

Since its release, however, serious questions have surfaced about both the integrity and objectivity of the Corps review.

The regulatory stage now shifts briefly to the state level, where Massachusetts secretary of environmental affairs Ellen Herzfelder has until Wednesday to determine whether the Corps draft statement sufficiently covered the state's environmental policy requirements.

If Mrs. Herzfelder finds the draft statement is inadequate, project applicant Cape Wind Associates will be required to submit additional information for further review.

While project opponents have long criticized the lack of state authority over the proposed wind farm, the state's jurisdiction actually increased this week, when the Minerals Management Service on Tuesday announced the state boundary had been extended a few miles further into Nantucket Sound.

The service, which is an arm of the U.S. Department of the Interior, is currently reviewing federal boundaries in each state. Surveys conducted in Nantucket Sound last fall found a series of rock formations off Yarmouth that the service determined to be "drying rocks" - a natural structure exposed at average low tide. Thus the state boundary - which goes three miles offshore - was extended to reach an additional three miles beyond the rocks.

Cape Wind's proposal called for all 130 turbines to be in federal waters, which limited the state's regulatory role and made the Army Corps the lead permitting agency. The new state boundaries encompass 10 of the turbines, which means Cape Wind will have to either move the turbines or open them up to state review.

If Cape Wind decides to relocate the turbines, it will have to file a notice of project change with the Massachusetts Environmental Policy Act office, which would trigger another public comment period. Cape Wind officials have not said what they plan to do.

Other project opponents, meanwhile, still question the Corps' authority to permit proposed developments on the outer continental shelf, where Cape Wind has not secured property rights.

Last week the United States Court of Appeals for the First Circuit upheld a Federal District Court decision in favor of the Corps' authority to permit Cape Wind's 200-foot meteorological data tower in Nantucket Sound. The ruling marked the fourth time that a federal court ruled in favor of the Corps on the case.

Cape Wind officials called the decision a victory, and suggested that it might set a precedent for expected challenges of the Corps' authority to permit the overall project.

The federal judges, however, specifically stated on more than one occasion that their decision related only to the data tower. They found that the question of infringement on federal property interests was hypothetical in the case of the temporary tower, which became operational in spring 2002 and collected data on wind and climate to aid the Corps review.

"It is inconceivable to us that permission to erect a single, temporary scientific device, like this, which gives the federal government information it requires, could be an infringement on any federal property ownership interest in the [outer continental shelf]," the judges wrote. "We do not here evaluate whether congressional authorization is necessary for construction of Cape Wind's proposed wind energy plant, a structure vastly larger in scale, complexity, and duration, which is not at issue in the present action."

Massachusetts Attorney General Thomas Reilly, who has been a vocal opponent of the Cape Wind project from the outset, reiterated this week that the state will challenge any permits that might be eventually granted by the Corps, and said the court of appeals decision left the entire project open to another challenge.

"Our position throughout has been that the Army Corps has no legal authority to give away the seabed in Nantucket Sound to a private developer. Only Congress can grant that authority," Mr. Reilly said in a statement yesterday. "We are prepared to challenge in court any effort by the Army Corps to authorize what amounts to the construction of a massive power plant right in the center of Nantucket Sound."