Sunday, January 4, 2009

Cape Wind Controversy

Barbara Durkin provided the following correspondence concerning the issues surrounding the Cape Wind controversy.  Those of you interested in following these issues may find this correspondence interesting.

December 28, 2008
Dear Mr. Stysky: 
Thank you for this notice that confirms the Patrick Administration has launched an apparent successful attack on the Commonwealth’s primary tool for protection and promotion of public use of its tidelands and waterways. 
At issue is M.G.L Chapter 91 that codifies the “Public Trust Doctrine”, a 2,000 year old legal principal that holds that the air, sea, and the shore belong not to any one person, but rather to the public at large. 


A troubling consideration is the timing of the Governor’s actions taken that greatly diminish public rights, and environmental protections afforded under Chapter 91. This particular “Change” of important law paves the way for one person during a United States precedent permitting process. Chapter 91 was determined by the Patrick administration to present an obstacle to a Limited Liability Corporation’s “no bid” deal to control, by occupancy, 24 square miles of public lands. 


The Massachusetts Secretary of Environmental Affairs determined the Cape Wind project is “non-water” dependent citing public comments accepted over 147 days as the basis for this decision of record of May 28, 2003.  The public identified that greater scrutiny of Cape Wind, as proposed for Nantucket Sound, is warranted under Chapter 91. This decision of record, in which the public participated, required Cape Wind to obtain a variance under  M.G.L Chapter 91.


In response, the Patrick administration exerted supreme power as it ignored public will, expressed over 147 days, and changed the oldest law of its kind in the Nation, M.G.L. Chapter 91.  This Cape Wind obstacle was altered during the project permit review process to accommodate a private developer.  Grave potential risks to the environment of Nantucket Sound, a resource upon which the public, trades, and present endangered wildlife depend, are now risks we assume.   

This announcement indicates that meaningful public participation in the decision making process pertaining to matters that most affect us has perished under the current administration.    


Governor Patrick's actions seem sufficient to cause President Abraham Lincoln to turn in over in his grave. As Lincoln eloquently expressed in the Gettysburg Address on the afternoon of Thursday, November 19, 1863: 


"government of the people, by the people, for the people, shall not perish from the earth”


"Charge", as promised by Governor Patrick, threatens to despoil our children’s inheritance, precious natural resources, Public Trust, heritage public rights, and trades. Deeds weighed more heavily than words reveal that from his State House castle, an Absolute Monarch attended by vassals, rules more than governs the silenced citizens of Massachusetts.   

Thank You,

Barbara Durkin

48 Moore Lane

Northboro, MA  01532

Telephone:  (508) 612-4133

As supplemental evidence previously submitted to the DEP confirms: 

November 24, 2008

Alex Strysky
One Winter Street
Boston, MA  02108
Department of Environmental Protection
Waterways Regulation Program
Notice of License Application Number W08-2480
"The proposed project has been determined to be water-dependent." 
Dear Mr. Strysky:
It is not acceptable that the Cape Wind project is now being described by the DEP as "water dependent" in this Public Notice.   As it is critical that this area of Nantucket Sound, with endangered species present, avian and marine life, receives a full environmental review relevant to the Cape Wind project under Chapter 91, as "non-water" dependent use. 
We need heavier scrutiny of Cape Wind to continue as a "non-water-dependant" use to protect the present endangered species, wildlife, and this environmentally fragile marine ecosystem.  The "world's largest" proposed offshore industrial project, Cape Wind, must continue to be considered within the context of the high values present that include species under federal and state protection.  Nantucket Sound is an Essential Fish Habitat and spawning ground, migratory flyway, with endangered species present, and as such, it merits the maximum protection afforded under Chapter 91 as a non-water dependent project consistent with its previous designation during this permit review process.
It is simply impermissible to change this significantly important designation of Cape Wind during the state and federal permit review process to accommodate this private developer's plan. 
I consider that this "sleight of hand" reclassification of Cape Wind to "water dependent" use,  is contrary to the public interest, the interest of the fragile environment of Nantucket Sound, Public Trust, and the integrity of the NEPA environmental review process of the Cape Wind project. 
A change in the status of Cape Wind from "non-water dependent" to "water dependent" use significantly undermines Public Trust, and public and environmental protections afforded under M.G.L. Chapter 91.   
Please deny Cape Wind's Chapter 91 Permit application.
Thank You,
Barbara Durkin
48 Moore Lane
Northboro, MA  01532
Telephone:  (508) 612-4133
Governor Deval Patrick has taken action to alter state law, M.G.L Chapter 91; during the permit review process of Cape Wind.
(see Boston Globe story copied below, 'Changes may buoy Cape Wind project' "Patrick seeks to alter state law" 12/11/07.). 
The significance of M.G.L. Chapter 91:
Boston Globe: 
"In concluding his remarks to the commission, Butler said that "most importantly, that project (the Nantucket cable) was determined to be water-dependent, whereas as noted in the findings of the draft decision before you, this (Cape Wind) is a non water-dependent use."

Cape Cod Commission Decision, in a parallel policy universe: 

Cape Wind as proposed is "inconsistent" with commission minimum performance standards in the following six areas:
- development in V-zones (coastal areas suspectible to storm damage)
- non-water dependent development within 100 feet of the top of a coastal bank, dune crest or beach.
- new dredging.
- impacts to eel beds.
- impacts to fish, shellfish and crustaceans.
- open space.

"The state Executive Office of Environmental Affaire has ruled that the Cape Wind project is non-water dependent and must therefore meet a stricter standard for development in the water (Chapter 91 variance)".

Cape Cod Commission Cape Wind Decision: 

Refer to page 37, forward, of 63 pages for Cape Wind "non-water" dependent

'Changes may buoy Cape Wind project'

"Patrick seeks to alter state law"

By Peter J. Howe Globe Staff / December 11, 2007

Governor Deval Patrick's administration proposed several changes to state environmental-protection laws yesterday that could help speed construction of offshore wind-power farms, including the controversy-plagued Cape Wind project that Patrick strongly backs.

The Department of Environmental Protection formally unveiled several changes to the state's Chapter 91 waterways protection laws, which could take effect as soon as April after a public comment period that ends Jan. 17.

One major change would be to declare cables conveying power from offshore renewable-energy projects - including wind farms and hydroelectric generating units - to be water-dependent. That designation would get those projects speedier, more favorable consideration by department regulators, who are required by Chapter 91 to apply heavier scrutiny to nonwater-dependent projects in protected waterfront and river areas.

"The governor has made it an environmental priority to increase renewable energy, and the most important piece of these changes would make the regulations consistent with the administration's support for renewable energy, by allowing renewable energy from offshore to connect to the grid onshore," said Ed Coletta, a department spokesman.

Besides the 130-turbine Cape Wind project in Nantucket Sound, other proposals the changes could help include construction mogul Jay Cashman's plan for a 120-turbine wind farm in Buzzards Bay off Dartmouth and Fairhaven, and the Hull Municipal Light Department's proposed wind farm.

The announcement was made a month after Patrick's administration supported House Speaker Salvatore F. DiMasi's inclusion of a measure in the House's green-energy bill. The measure exempts Cape Wind and the Cashman project from regulatory hurdles in the state's Ocean Sanctuaries Act, which limits or bans development in most coastal waters.

Though former governor Mitt Romney relentlessly opposed Cape Wind, Patrick and his energy and environmental affairs secretary, Ian A. Bowles, have called the project crucial to meeting state goals for renewable energy and helping to market Massachusetts worldwide as being friendly to renewable energy companies.

Mark Rodgers, a Cape Wind Associates spokesman, said yesterday that his company had not yet seen the proposed changes but said they sounded like "a step in the right direction from our viewpoint." The current designation of offshore wind farms as nonwater-dependent projects, Rodgers said, "doesn't make it impossible, but it adds another layer, and it never struck us as a policy that makes sense."

Rodgers said offshore wind farms are clearly water-dependent because it is their location in the open ocean - where winds are much steadier and stronger than on land - that makes them feasible for generating electricity.

Officials from the Alliance to Protect Nantucket Sound, which has been battling Cape Wind for six years, and the Conservation Law Foundation, an environmental group backing Cape Wind, declined to comment.

Last month, Cape Wind angered its foes by asking the state Energy Facilities Siting Board to use its unique authority to approve the project by preempting eight different state and local permits - including the DEP waterways permit. This move came after the Cape Cod Commission voted against approving transmission lines connecting Cape Wind to the regional power grid in Yarmouth.

Peter J. Howe can be reached at

© Copyright 2007 Globe Newspaper Company.
Comment to Coastal Zone Management on Cape Wind:
The significance of M.G.L. Chapter 91 Public and Waterways Protections and Cape Wind as a "non-water dependent" use:

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ECODESIGN,       Inc.


EAST:       Flagship       Wharf       #506


197       Eighth St       Charlestown       Navy Yard


Boston,       MA 02129


Ph       (617) 241-9006


Cell       (970) 948-8822*




Urban       Design & Planning


Environmental       Planning


Production       Design


Project       Develop & Management













October 25, 2008

Mr. Phil Dascomb
Cape Cod Commission
PO Box 226
Barnstable, MA 02630

Re: True Environmentalists Seek Alternative Sites for More Productive Wind Energy

Dear Commissioner(s),

The attached ECODESIGN letter expresses the concerns of serious pro-alternative energy environmentalists to the specific wind turbine development proposed by Cape Wind. 

Pro-alternative energy objections to installation of 130 untested, 40-building stories high wind turbines along a major shipping channel, under a busy airspace and in a 24 acre Federal "doughnut hole" in Massachusetts’ coast and Massachusetts Sanctuary include:

· "Federal vs. States rights",

· "Lack of coastal zoning",

· "No competitive bid",

· "Developer land grab",

· "Illegal spot zoning",

· "No siting provisions",

· "Navigational hazards to major transportation and commercial routes",

· "Dangerous radar interference in busy airspace",

· "Homeland Security re: radar interference",

· "Inadequate, misleading Environmental Impact Statement",

· “Effects on marine-life and fishing industry”,

· "EIS critical mass of adverse and unknown effects including socio-economic",

· "Untested technology / maintenance for harsh, corrosive and inaccessible marine conditions", 

· "Safety of search and rescue operations by helicopters or surface vessel in adverse sea or weather",

· "No exit strategy re: technology failure or obsolescence”,

· "Special Energy Bill exemptions to this developer",



· “Violation of State Sanctuary”,

· "No comprehensive ocean policy",

· “Tax benefits and subsidies over $800m. to developer”,

· “Loss of opportunity/ time/ money/ resources better spent to develop state-of-art technology required to utilize more energy-productive off-shore wind energy sites”.

These are all serious issues that relate the CCC jurisdiction that require the fullest consideration and review of the Cape Cod Commission. There will be important permits, licenses, etc. required from Minerals Management, local towns, including Chapter 91 from MA Department of Environmental Protection.

Chapter 91 regulations and their impact on this project are a critical view of this proposed development; CCC will be requiring the developer’s presentation of a Ch 91 License. I am familiar with Chapter 91 from other projects and realize that Chapter 91 is one of extremely few MA regulations that protect our coast from development and preserves our access to our Massachusetts State waters.  Chapter 91 dates to the earliest of MA laws; it now prevents development of areas of tidal waters for anything other than water dependent uses. 


Chapter 91 has been much abused in recent years and now MA citizens and MA government officials have become concerned and activated. Concerns regarding Ch 91’s application to the Transmission Cable component of the Cape Wind’s Proposal raise many questions.


1. What specifically is the permit regarding the cable component that is required from offshore and near-shore wind turbine proposals under Chapter 91?   

2. Are these turbine permits to be year-to-year licenses or long term leases?   

3. What are the terms and conditions of the permits or leases?   

4. Can the permits be denied or terminated and on what basis (i.e.: Is there both an activation and an exit strategy)?   

5. Is a separate Impact Statement required from MA agencies for the separate cable component?  

6. Who else is allowed to use this cable or cables?   

7. Is this the best location for MA for such a transmission cable vs. an alternative cable location or “site” or “right-of-way” that leads to potential true “blue water” offshore sites on the continental shelf that will be more productive in the future?  

8. How many cables can we support that connect to the main grid (i.e.: Will there be many other requests and how will they be administered)? 

9. Are there separate impacts re: upkeep and maintenance, shifting, restrictions on anchorage, disruption of seabed, dangers due to damage to the cable(s), etc.   

10. Will transmission cables be terrorist targets requiring additional security and protection and who would pay the costs of this?   

11. Will there be a fee paid for the lease of the MA seabed over which the cable(s) would pass? How much and to whom?





How, as well, do rules and regulations of 2002 Regional Policy Plan (as opposed to the 1996 Regional Policy Plan) apply? 

1. How and where will the cable connect to the mainframe electrical grid and what is the condition of the grid at that point (i.e.: Is it as obsolete and inadequate as most of the Northeast grid and who will be updating and maintaining it)?    

2. Where are the monitors quantifying the power to be supplied by Cape Wind and are there independent monitors?    

3. If Cape Cod airport safety is affected, including future uses on Cape both military and commercial, aren’t commercial assets of the Cape restricted in a permanent way by this project as irreversible impacts?

These are considerations that fall to the Cape Cod Commission (CCC).



Sherrie S. Cutler, A.I.A.

ECODESIGN, Inc., President

Environmental Planning and Architecture

(970) 948-8822

Shenanigans undermine public confidence in government such as have been conducted to facilitate a private developer, Cape Wind.  The message is, if you're project can't comply with the law, have your friends change the law.   

"Proposed regulation change could ease Cape Wind efforts"

Phil Weinberg of the MA Department of Environmental Protection (DEP) then reviewed MA DEP’s review process. He said that DEP jurisdiction is limited to MA territorial waters, and, on this project, specifically to the underwater cable within the 3 mile boundary. Mr. Weinberg said this is a change from DEP’s initial comments in the ENF. Previously, the Nantucket cable fit the definition of an infrastructure crossing facility (ICF). If the ICF is water dependent, there is a low level of public review. In response to a public comment, further review determined that this proposed cable did not travel between opposite banks, this became an infrastructure facility, and a non water dependent project, thus requiring a variance. 


Mr. Weinberg then reviewed MA DEP’s regulatory jurisdiction and explained chapter 91 regulations governing the cable through the seabed, wetlands, and water quality impacts from related dredging. 


Stakeholders, Resources, and Advisors had the following questions (in italics) for Mr. Strysky (CZM) and Mr. Weinberg (DEP). Their responses are below:


Is the cable a chapter 91 license or a permit?


(DEP) I’m not sure, but I think it’s a permit.


Does the Department consider an underwater cable as being water dependent?


(DEP) If it qualifies as an infrastructure crossing facility and the Secretary determines that there is not an alternative, then it’s water dependent. But we determined that it’s not water dependent because it is not bank to bank.


Is there a schedule laid out including all of the permitting processes?


Ms. Adams said she doesn’t have one, but perhaps the applicant does. 


There are 6 locations of cable crossing—is one a tie in to the Nantucket project, and how would that impact this process?


( DEP) Don’t have that level of detail, but it would be in the alternatives analysis. Ms. Adams added that the tie in to Nantucket is not one of the 6 options. The cables cross outside of Hyannis harbor and that is not a useful connection point for this project.



What level of criteria will feed into your determination?


(CZM) CZM’s decision will be based on the project’s consistency with CZM’s enforceable policies. Comments from other state agencies may also be considered. For example, CZM doesn’t have a fisheries policy, but would rely on the expertise of the Division of Marine Fisheries (DMF) on that subject. However, CZM can’t make a decision based solely on fisheries issues. 


 I think we need more clarity on how jurisdiction decisions get made.


One stakeholder responded that this was the subject of a lawsuit brought by the Alliance. The representative from the Alliance to Protect Nantucket Sound responded that there were 2 lawsuits, only one of which is the Alliance’s.


What is the motivation or reason for something being water dependent or non water dependent, and how is that related to the infrastructure crossing?


(DEP) Chapter 91 looks more favorably to approve water dependent structures than non water dependent structures. Regulations go through what types of uses fit into the water dependent category. One part of the definition is that the structure is bank to bank.


COMMENT--Can we bring up consistency question this afternoon, between state’s Ocean Task Force and federal Oceans Commission? We can’t make decisions based on political boundaries if they are unclear.


Secretary ENF decrees wind projects "non-water" dependent page (1) Buzzards Bay proposal 



By Secretary Robert Durand

April 22, 2002



PROJECT NAME : Cape Wind Project

PROJECT MUNICIPALITY : Barnstable, Yarmouth, and Federal Waters of Nantucket Sound



PROJECT PROPONENT : Cape Wind Associates LLC

DATE NOTICED IN MONITOR : November 24, 2001




Pursuant to the Massachusetts Environmental Policy Act (G. L. c. 30, ss. 61-62H) and Section 11.03 of the MEPA regulations (301 CMR 11.00), I hereby determine that this project requires the preparation of an Environmental Impact Report (EIR).




Chapter 91/Public Trust


The EIR should include an analysis of the project impacts on lands subject to the Massachusetts Public Trust Doctrine. The document should discuss potential impacts on navigation and


anchorage within the state Territorial Sea, and should discuss any impacts on public access to Chapter 91 lands.


The submarine cables qualify as an infrastructure crossing facility under the state Waterways Regulations. DEP must consider an infrastructure crossing to be non-water dependent (and thus categorically prohibited) under the Waterways Regulations unless I make a determination, as part of the EIR review, that the cable cannot reasonably be located or operated away from tidal or inland waters (see 310 C.M.R. 9.12(2)(d)). The EIR should therefore include sufficient information for me to make a determination pursuant to the applicable regulations.


The EIR should also discuss any federal public trust implications of the project. The EIR should include discussion of impacts to recreational/commercial fishing and boating, and public access in general, in the area proposed for the WTG array. 

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