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."