Jan 28, 2009

Mitigation Bankers to meet soon in Searsport - last step before divvying up Sears Island

Ah yes. That poignant little phrase of the Sierra Clubbers: 'Don't worry, they'll never build on Sears Island,' is about to enter the history books alongside the "Dewey defeats Truman " headlines of yore.

Why, Because MDOT has now resubmitted its umbrella mitigation bank prospectus to the Army Corps of Engineers for approval. (link is to the notice from June 2008 that was cancelled in November (pdf)) The Corps' mitigation bank officer Ruth Ladd wrote in response to a recent inquiry:

"Yes, there will be a new Public Notice on the resubmitted prospectus and there will be a public meeting in Searsport. I anticipate sending out the Public Notice on February 3."

THAT'S RIGHT. This direct result of the signing of the final order on Sears island, makes it now possible for MDOT to 'bank' the value of the "conserved" portion of Sears island for its first 'deposit' in its spanking new mitigation bank.

Why? So MDOT can then 'spend' that value compensating for the savagery it is about to inflict upon the salmon, sturgeon and baby cod who rely on the shallow brackish shoals that must be dredged to make Sears Island safe for container ships.

This time, thanks to the credulous JUPCians - Sierra Club in particular, Sears Island has been transformed into a 600 acre wad of mitigation cash - called by some a 'conservation easement', a 300 acre transportation parcel, upon which that wad will be dropped, and the great unspoken 500 acres of nursery shoal that will be wrecked. ('Not our issue,' intones JUPC, 'we're upland-focused. The Bay be d__ed')

So things should go just splendidly for MDOT and the island depredator it has waiting in the wings. The Army Corps of Engineers and Maine DOT will come to Searsport this spring, bearing mitigation bankers on their shoulders. Becky and Steve of Penobscot Bay Alliance and Islesboro Islands Trust respectively will proclaim their discomfort with the bank using their 600 acre playground as credit to despoil the rest of the island and its fish nurseries. Then they will exude sternly worded letters in a futile attempt at CYA.

Sierra Club too may register its displeasure, though not too likely; its headline story on Sears Island in the new edition of the Maine Sierran neglects to mention the umbrella mitigation plan even once.

If they do show, Sierra Club's Ken Cline - Joan'll be busy - will frown severely at the MDOT and Corps officials lined up at the front table and deliver a lengthy but meaningless lecture, aimed mostly at garnishing a few mea culpa soundbites. Commissioner Kenneth Cole will cough to hide his grin.

Crocodile tears shall flow in such quantities from the JUPC-ites as to threaten the very brackishness of the upper bay estuary, which is lapping quietly at the shore across Route One from the meeting.

But that's okay. Maine Coast Heritage Trust will again attempt to reassure the other sellouts that the environmental quality of Sears Island ain't so great anyway, so why give a ****?   "We do not have a wild island"  Scott intones. "We have an island that owned by the state of Maine that's been occupied for two hundred years by different levels of intensive use."

(Earth to Dickerson - It's had intensive use for over eight thousand years, Scotty.  Just not the 20th century, which non-exploitation being  why it IS a wild island.  But we forget: the immense archaeological and prehistoric assets of the island that would be paved over are not your Baldaccian charge, so they don't matter.) 

Finally the Army Corps andf Maine DOT will put an end to the farce, thank the assembled for their input, and then go on their merry way to the office of the port applicant, where a toast will be drunk to the Sierra Club and its little hangers-on in FOSI and PBA, for making mitigation to build a port possible.

Jan 22, 2009

Baldacci, Cole okay dismembering Sears Island; activists vow to contest final rule.

Opponents of a Maine DOT-devised plan to partition Penobscot Bay's Sears Island into a port zone and a protected zone said that they will contest today's approval of a controversial conservation easement by the Baldacci Administration.

Because the easement is a Final Agency Rule, those seeking to overturn the rule have thirty days to bring suit before state or federal court.

"Sears Island will not be dismembered," said Ron Huber, executive director of Penobscot Bay Watch. "The final rule is based on false and misleading information, purposely fed to both MDOT's Sears Island Joint Use Planning Committee, and to the members of the Legislature's Transportation Committee*. Garbage in/garbage out. It won't hold up to judicial scrutiny."

* Under Public Law 277 the Maine Legislature's Joint Committee on Transportation has authority to review all Sears Island development proposals. After the committee reviewed the Joint Use Plan on November 18, 2008 and in December, Transportation Committee co-chair Dennis Damon who had promised on June 26, '08 to bring the Sears Island issue before the legislature's Marine Resources Committee, declined to do so.
Instead, brushing aside concerns from new legislators on the Transportation Committee, and refusing to allow Sears Island fishery concerns to be brought up before the Marine Resources Committee on January 14th (the Senator co-chairs that committee, too) , Damon shoved approval of the Joint Use Plan (15 minute mp3) through on January 15, 2009: in the process dealing a tremendous slap in the face to Midcoast groundfishermen struggling to keep their industry alive in the current ecomoic climate.
Huber said his group and others have worked with many others to restore Penobscot Bay's finfisheries and shellfisheries.

"The chronic pollution and permanent destruction of groundfish nursery habitat and salmon habitat in the upper bay that a container port on Sears Island would make it far less likely that the bay's cod, haddock and flounder will make a comback in our lifetime.

In addition, 'smolts', young Atlantic salmon transitioning from freshwater to saltwater life, gather in the shallow brackish protected waters near Sears Island while they morph from being fresh to saltwater breathing. These too will find their essential nearshore habitat destroyed or fouled with ballast water, bilge and other tainted runoff from a functioning container port. The same holds true for Penobscot River's sturgeon

The groups will ask that the MDOT's Final Order partitioning the island into conservation zone and port zone be set aside, and that Maine DOT be made to carry out and pass an environmental review as required under federal and state law before moving ahead with any partition plan

Penobscot Bay Watch is part of a larger regional coalition, Fair Play for Sears Island, which will take part in the expected litigation. "This is not the first time we've fought off a Sears Island proposal, said Harlan McLaughlan, director of Fair Play for Sears Island, "but we hope it will be the last."

At issue is whether Maine DOT and its Joint Use Planning Committee (JUPC) erred when they declined during their two years of deliberations to consider the environmental damage a container port might have on the island's and bay's natural marine resources. The agency claimed its JUPC group, which operated as a state rulemaking consensus process could voluntarily exempt itself from having to consider the potential environmental impacts of their evolving plan.

Critics say this contravenes the Sensible Transportation Policy Act (STPA), Maine's key transportation law. STPA warns that MDOT's decisions on transportation plans (like Sears Island) can: "have profound, long-lasting and sometimes detrimental impacts on the natural resources of the State, including its air quality, land and water."

Becuase of that concern, in its rules, STPA "requires that MaineDOT identify and develop strategies that are context sensitive and minimize adverse affects to environmental quality."

"Evidently Commissioner Cole forgot to look at his rulebook," Huber said. "Now we'll have to have a judge 'throw the book at him'.

Baldacci/Cole plan goes against Legal Precedent. The January 22 2009 decisions also run MDOT afoul of established federal Sears Island legal precedent. Consider the 1989 federal court case Sierra Club v. Marsh (pdf), 1989 US App (1st) 75 - a critical Sears island precedent case.

In his decision, then-1st Circuit Chief Judge Breyer wrote thusly about the folly of MDOT's planning process playing down the likely harm a port on Sears Island could have:
"..... the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment."
Breyer held that decisions about Sears Island need to be made in
"...a process whereby administrators make important decisions with an informed awareness of how the decision might significantly affect the environment."

But Maine DOT and its Joint Use Planning Committee have done just the opposite. Wouldn't Judge Breyer - now a US Supreme Court justice - be disappointed to learn of Maine DOT's repeat of its 1980s blunder?

Huber said he is not surprised by the Baldacci Administration's machinations. "When it comes to Sears Island, Maine's government has a sad history of ignoring economic and ecological reality, and of skirting or outright ignoring the law." he said.

In 1995, facing certain denial of his cargo port plan for environmental reasons, Governor Angus King and members of the Maine congressional delegation infamously pressured EPA's regional administrator into agreeing to transfer the EPA's staff reviewing Sears Island off the Sears Island port plan review.

When he learned of King's plot, Huber notified legal advocacy organization Public Employees for Environmental Responsibility, which filed a lawsuit that forced the EPA administrator to reverse his decision and keep the staff on the job. Once the EPA official backed down, PEER withdrew its suit, the staffer returned to work and, based on her recommendations, the US Army Corp of Engineers set stiff requirements for mitigating the damage the port would cause to island and bay. Unable to foot the bill, Angus King withdrew his Sears Island port plan in early 1996. (short mp3)

Huber said he was not surprised that Maine DOT didn't seek a review of their plan by the Maine Department of Marine Resources. "DMR kowtowed completely to the port proponents under King" he said.

In October 1995, then-DMR Commissioner Robin Alden submitted a controversial letter to the Army Corps of Engineers and FHWA that pooh-poohed the value of Sears Island's shoals and eelgrass meadows as fish habitat, earning her a rebuke from federal officials as well as New England's marine science community - including one of the scientists she quoted in her letter.

Steve Miller of the Islesboro Islands Trust wrote in a letter to Commissioner Alden that his "initial reaction ranged from disbelief to horror.. .your letter seemed more like a defense of the cargo port than a discussion of natural resources and their preservation."

Ironically, Miller is now himself committed to port development on Sears Island, as a consensing member of the Joint Use Planning Committee, a decision that has put him at odds with many former allies.

""We likewise reacted with disbelief and horror, when we learned that Steve Miller had joined the dark side", McLaughlan said. "Go figure."

Perhaps mindful of Alden's debacle, present day Marine Resources Commissioner George Lapointe has kept mum.

"Hopefully something will finally penetrate MDOT's leaders' thick skulls", said Mclaughlan. "Their brains always turn to mush when Sears Island gets put on their to-do list."

Below: Governor Baldacci's January 2 press release (includes full text of governor's executive order)


January 22, 2009

An Order Implementing the Recommendations of the Sears Island Planning Initiative's Joint Use Planning Committee

WHEREAS, the State of Maine is dedicated to preserving its historic coastline while providing economic opportunities to its citizens that its proximity to navigable waters offer; and

WHEREAS, the State of Maine owns Sears Island in the Town of Searsport, County of Waldo, where both of these goals can be compatibly and responsibly pursued; and

WHEREAS, Sears Island lies centrally on Maine's largest bay, Penobscot Bay, which has seaports, manufacturing centers, farms, rocky headlands and well over 100 islands on its waters and shores. The Bay, which serves as the economic domain of a thousand or more working fishing and lobster boats, includes a major shipping channel, and is a recreational and ecological location of world class standing; and

WHEREAS, Sears Island located in the harbor of Searsport is uniquely suited, through its deep water ship access and its rail connection allowing double stacked rail cars to travel unabated from Searsport to Chicago, to be the location of a future freight container port; and

WHEREAS, Maine's future economy will be strengthened by the inclusion of Sears Island in the global freight transportation routes; and

WHEREAS, the parties to the Consensus Agreement, that created the Joint Use Planning Committee, shared a good faith belief that opportunities to pursue a port and conservation uses were compatible and should be given equal weight and attention and should all be vigorously pursued ; and

WHEREAS, the Sears Island Planning Initiative Consensus Agreement established that the appropriate uses for Sears Island are compatibly managed marine transportation, recreation, education, and conservation, therefore, the joint use planning process defined two significant land use parcels on the Island, a 601-acre conservation parcel known as the "Protected Property" and a 330-acre "Transportation Parcel", for the benefit of the Town of Searsport, County of Waldo and the State of Maine; and

WHEREAS, Sears Island Planning Initiative Consensus Agreement established that the Maine Department of Transportation (MaineDOT) will actively market, solicit proposals and create partnerships for a cargo/container port on Mack Point and/or Sears Island on the Transportation Parcel; and

WHEREAS, Sears Island Planning Initiative Consensus Agreement established that the MaineDOT, with the Town of Searsport and appropriate others will provide for light recreation, education and conservation facilities on the Protected Property by conveyance of an easement covering that area; and

WHEREAS, the Final Report and Recommendations for Implementation of the Sears Island Planning Initiative Joint Use Planning Committee, prepared pursuant to the Sears Island Planning Initiative Steering Committee Consensus Agreement has been presented to and approved by the Joint Standing Committee on Transportation of the Maine Legislature in accordance with Maine Public Law 2005, Chapter 277;

NOW, THEREFORE, I, John E. Baldacci, Governor of the State of Maine, do hereby order and direct as follows:

The Maine Department of Transportation will in all respects implement the recommendations of the Sears Island Planning Initiative's Joint Use Planning Committee.

o MaineDOT, as Grantor, will grant a Conservation Easement on a 601-acre conservation parcel known as the Protected Property on Sears Island to the Maine Coast Heritage Trust, the Holder, with the Maine Department of Environmental Protection as the Third Party Enforcer.

o MaineDOT will fix the boundaries of the Transportation Parcel and the Protected Property as determined by the Joint Use Planning Committee and defined in the Conservation Easement.

o The Transportation Parcel is reserved by MaineDOT for future transportation use, allowing for joint or concurrent development of a marine transportation facility, compliant with 23 CFR 774.

o MaineDOT will create a "Sears Island Conservation Area Advisory Group" to provide public input on future land use and guidance to MaineDOT with respect to the management of the Protected Property.

o MaineDOT, upon execution of the Conservation Easement, will actively and aggressively work with the Maine Port Authority and other interested parties to initiate the process of marketing and development of a cargo/container port on Mack Point and Sears Island in accordance with the Agreement including initiating a request for proposals for a cargo/container port facility which will utilize environmentally-responsible technologies to minimize impact to natural resources, cultural values and existing marine activities while creating significant economic opportunity for the citizens of the State of Maine.

Effective Date:

The effective date of this Executive Order is January 22, 2009.




Jan 16, 2009

Sears Island : Transportation Committee reverses 11/18/08 decision

Listen to the Maine Legislature's Transportation Committee get lied into voting to dismember Sears Island, privatizing 2/3 of it to a private land trust, and privatizing 1/3 of it to an industrial port operator. Click Here to hear the final debate and vote. (15 minute mp3)

Jan 15, 2009

Sears Island: Danger ahead! Appeasement never works.

Giving away 2/3 of Sears Island is not going to satisfy the hunger of Sierra Club and the land trusts to control the public island. If the  Legislature gives in to Baldacci and lets itself be reversed: NO PORT.

Jan 13, 2009

Sears Island dodges Baldacci's and Damon's sneak attack

Great sighs of relief around the bay as wiser and more skeptical heads prevailed in the Maine legislature's Transportation Committee January 13, 2009.
An attempt by Senator Dennis Damon to ramrod a deal he'd secretly hammered out with Governor Baldacci through the committee, to reverse the Committee's November vote on Sears Island, has been derailed.  At least until Thursday, when it comes up again....
Listen to complete  audio clips of the meeting.

At the hearing, a clearly nervous Senator Damon admitted that his request to both introduce and vote on a brand new proposal was irregular, but attempted to assure committee members that he'd considered their points of view while dealcutting with Baldacci.

This displeased a majority of committee members who felt jsut the opposite, that their views were being ignored. Veteran committee members were mystified as to why they should reverse their earlier vote, as nothing proposed in the new deal decreased the likelihood that environmentalists, even those like Sierra Club that signed onto partitioning the island, would fight any incoming port developer wannabes. Not to mention the myriad other groups large and small that successfully fought off earlier Sears Island port attempts under McKernan, King, and present governor Baldacci's unsuccessful LNG port effort in his first term.

For new transportation committee members, this was their first encounter with Sears Island, and opinion ran among them that this was too much too sudden, too soon. As if Damon had become a frantic snake oil peddler, trying to hurry them into an uninformed vote.

A sufficient number of legislators objected to the Baldacci/Damon Plan, that Damon was compelled to agree to table it for future conderation - specifically this coming Thursday.

Between now and then, opponents of the Baldacci and Damon Plan, the"BaD Plan" will educate new Transportation Committee members as to the downside of the Governor's plan, reassure veteran committee memberrs that their november vote was right and just, and need not be brushed aside.

Island huggers will also put Senator Dennis Damon in the doghouse for falling in line with Baldacci's secret effort to thwart democratic process in the Maine legislature, going so far as to exclude Transportation Committee co-chair Ed Mazurek from their repeated behind the scenes dealmaking get togethers. Monday evening, Mazurek was unaware that Sears Island would even be on the Tuesday agenda, let alone a vote taken.

In a further sign of contempt for opposition, critics of the plan to split Sears Island were kept inthe dark about Sears Island decision being on the meeting. In November Damon said he would be sure all interested parties would be kept informed of upcoming committee action on Sears Island. Then January rolls around and Damon sets transportation committee final action for Sears Island, but DOESN'T tell anyone. Not the committee members, nor port oppos. Just port partisans and pale green groups.

Shame on you, Senator Damon, Governor Baldacci!

Jan 9, 2009

Legislating Sears Island's fate begins anew.

Our Maine legislature begins the biennial rite of submitting, considering and voting on bills, and setting agency budgets - legislation on many if not all facets of life in Maine, including the lives of wildlife on and around Sears Island.

The Transportation Committee is where the Sears Island action is focused. The Committee has before it SP 21 "Joint Order, Authorizing the Joint Standing Committee on Transportation To Report out a Bill Concerning the Sears Island Planning Initiative." (1 page pdf) Submitted by Committee Chair Sen Dennis Damon, it appears to ask for the Transportation Committee to formally "report out a bill" to the greater legislature, and for the Committee to be prepared to have it returned by the legislature for amendment. (Text of SP 21 below)

124th Maine State Legislature

SP 21 Joint Order, Authorizing the Joint Standing Committee on Transportation To Report out a Bill Concerning the Sears Island Planning Initiative

"the House concurring, that the Joint Standing Committee on Transportation, having received the "Final Report and Recommendations for Implementation of the Sears Island Planning Initiative" of the Joint Use Planning Committee, is authorized to report out a bill to the First Regular Session of the 124th Legislature relating to Sears Island. The bill reported out by the Joint Standing Committee on Transportation must be referred to the Joint Standing Committee on Transportation for processing in the normal course in accordance with the Joint Rules of the 124th Legislature."
[End of SP 21.]

So what does it mean? Who is going to blink? Damon? Baldacci? Mazurek? Sierra Club? CLF?  A clash of titans looms on the horizon.