Lt. Col. J. Michael Bradbury
District Engineer
U.S. Army Corps of Engineers
424 Trapelo Road -
Waltham, in 0325»:-.9149
Paul Lariviere
Division Administrator
Federal Highway Administration
Room: 14, Federal Building
Augusta, ME 04330
Brian Nutter
Project Manager
Maine Department of Transportation
State House Station 16
Augusta ME 04333
Sears Island Cargo Port Proposal
FHWA-ME-EIS-86-01-DS
Army Corps reference# 1995-001408
Dear Lt. Col. Bradbury and Messers Lariviere and Nutter:
This letter constitutes the comments of the Conservation Law
Foundation on the draft supplemental environmental impact statement
(DSEIS) and Clean Water Act 404 permit application.
Preliminary Comments
A few points essential in the responsibilities of the Corps'
review under Section 404 and FHWA's obligations under NEPA are
clear:
* The impacts to both terrestrial and marine environments
on Sears Island will cause significant degradation of
waters of the United states within the meaning of the
Clean Water Act and preclude the Corps from issuing a
Section 404 permit.
* The size and scope of impacts at Sears Island to the marine
environment alone are unprecedented in New England and
make Sears Island an environmentally inappropriate site for
the Proposed Action.
* The mitigation suggested in the DSEIS is insufficient
to allow a permit to issue. "Preservation" of Sears
* The mitigation suggested in the DSEIS is insufficient
to allow a permit to issue. "Preservation" of Sears
Island, the centerpiece of the proposal, fails to
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Page 2
provide the kind and scope of mitigation required by the
Clean Water Act and 404 guidelines: to restore the
functions and values of the habitats destroyed and
damaged by the Proposed Action. If the mitigation
proposed in the DSEI5 were implemented, the waters of the
United States would still suffer significant degradation,
precluding the issuance of a 404 permit.
* The purpose of an EIS is to provide full, fair and
accurate information to enable the public and agencies to
make the best decision possible with respect to the
proposed action. Unfortunately, the Draft SEIS fails
this standard. Given the fact that the MDOT has been
meeting with federal agencies in closed-door sessions for
several years now - including yet another secret meeting
two days before the expiration of the public comment
period - it is a source of some amazement that critical
information is omitted from the document, speculative
conclusions are reached without evidentiary support,
issues of known concern to the public are not discussed
whatsoever and basic elements of an adequate NEPA
document are simply missing from the Draft.
In particular, the exclusion in the DSEIS of an
assessment of the secondary and cumulative environmental
and detrimental economic impacts related to creating an
export opportunity for up to 1.5 million tons of wood
chips violates NEPA. Additionally, the assessment of
constraints and opportunities at Mack. Point is conclusory
and fails to address key issues regarding the viability
of Mack Point to service project purposes. CLF agrees with
NMFS and USFWS that Mack Point remains a practicable alternative.
These inadequacies go to the heart of issues needed to
provide decision makers and the public with a full and
accurate assessment of impacts and alternatives to the
Proposed Action. If not corrected, this EIS will
constitute yet another legally flawed document and the
Corps Record of Decision (ROD) will unfortunately be
subject to corrective action through the judicial process.
In order to avoid this, we urge the agencies to issue a
supplemental draft EIS as more fully described below.
* CLF is concerned with irregularities affecting the
process used in the preparation, distribution and comment
of the DSEIS. The requirement that the public pay $40.00
for a copy or the DSEIS is unprecedented under NEPA and
acts to frustrate public involvement. At the same time,
the MDOT has used public money to prepare and distribute
a biased promotional video or the project. None of this
speaks well to the fairness of the process.
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Page 3
Press accounts in the week leading up to the public
hearing contain information which, if accurate, undermine
assertions in the SEIS regarding the viability of Mack
Point and call into question whether the project purpose
as stated in the SEIS is still accurate and valid.
These include: '
- A report that the MDOT is preparing additional
financial and economic reports central to key issues in
the DSEIS - but will not make the new information
available until after the close of the public comment
process.
- The day before the public hearing, the governor of
Maine and the president of the Bangor & Aroostook
Railroad held a press conference announcing that they
have found 6 times the amount of container cargo forecast
in the DSEIS and would transform the port from one designed
to encourage the export of Maine products to one designed
to he an outlet for container shipping in the
northeastern U5 and Canada.
-- Six days before the public hearing, Sprague Energy
announced that it intended to purchase 40 acres on Mack
Point and increase export shipping capacity, including
wood chips and breakbulk cargo intended for a Sears
Island port.
These announcements have the potential to fundamentally
alter the Proposed Action as set forth in the Draft SEIS
released to the public. Yet, none of this information is
in the SEIS and the public has had no ability to review
or comment on these assertions. The refusal of MDOT to
incorporate in the Draft missing financial information
directly relevant to economic claims made in the DSEIS is
an abuse of the NEPA process. Again, we believe that
(1) a supplemental DSEIS should be issued that includes
marketing and any other relevant studies underway and (2)
a supplemental EIS should he issued to incorporate any
"new" information raised outside the DSEIS and public
comment process. We urge the US EPA to insist that the
lead NEPA agencies do their jobs correctly and prepare an
adequate supplemental EIS
Finally, as the Corps and EHWA review public Comments and
apply NEPA and 404 requirements to the revised Proposed Action, we
urge the agencies to take a fresh look at the project as it has
evolved. As more fully described below in our discussion of Mack
Point, the project has changed in fundamental ways since the
earlier Corps permits and since the 1987 Final EIS. The project is
smaller, it will provide a fraction of the jobs previously claimed,
it is much more expensive to build and operate, will provide fewer
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Page 4
transportation savings, and is more reliant on wood chips as an
export commodity by a factor of 2.5 - 6. The Proposed Action no
longer calls for a large industrial park —- such a park is deemed
to be economically unfeasible by MDOT consultants. It will need
about 1/3 less space - and only one berth. And in stark contrast
to the 1987 FEIS, we now know that the island supports over 200
acres of wetlands and hundreds of acres of eelgrass.
COMMENTS ON DSEIS AND CWA 404 ISSUES
1. The Direct, Secondary and Cumulative Impacts of the
Proposed Action on Terrestrial and Marine Resources are
significant and preclude Sears Island as an Appropriate Site
for the Proposed Action.
Each of the designs proposed in the SDEIS for a port on Sears
Island will cause significant degradation of the waters of the
United States.
A. Impact to Marine Resources
The impacts to the marine environment alone create significant
impacts for Sectiion 404 purposes.
1. Mud and Clamflats.
Section 404 guidelines characterize mudflats and clam flats as
important habitat the destruction of which should be avoided.
Construction on Sears Island has already destroyed 12-16 acres of
the intertidal zone due to fill. D|amaqe to mudflats from
construction of the causeway totals 3.7 acres. Importantiy, the
mitigation attempted for these destroyed clam flats has failed,
according to federal resource agencies. In addition, the
mitigation took the form of filling filling valuable subtidal and
intertidal habitat in order to attempt clam flat recreation. This
has resulted in a net loss of high value habitat.
2. Eelgrass
The importance of eelgrass as a primary producer and as the
basis of the detrital food chain is comparable to that of
saltmarsh. It is widely recognized that saltmarshes constitute one
of the most important marine environments and federal and_state
agencies routinely act to ensure that saltmarshes are not damaged
or destroyed. Eelgrass provides all of the functions and values of saltmarsh, with the exception of flood control. Eelgrass beds
produce plant material at rates comparable to those seen in
saltmarshes. In fact, eelgrass is more important than saltmarsh as
feeding and nursery habitat for commercial and recreational
fisheries, particularly in Penohscot Bay where the predominantly
rocky coastline provides little opportunity for saltmarsh
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Page 5
development.
Eelgrass plants provide some of the most productive and
important marina habitats in New England. (1) The functions and
values of eelgrass include:
* Sediment Stabilization: reduction of sediment erosion and
export;
* Sediment and Toxic Retention: increased deposition and
accumulation, especially of fine-grained particles;
* Nutrient Removal and Transformation: uptake of nutrients
from the water column and conversion to plant materiel:
* Production Export: transport of detritus out of local area;
* Diversity and Abundance of Fish and Invertebrates:
increase in habitat complexity, shelter and food for
marine animals including juveniles; and
* Diversity and abundance of Birds: increase in food
resources for local and migrating birds.
As Fred Short explains in his report, "Distribution of
Eelgrass in Penobscot Bay":
"Eelgrass habitats provide many functions that maintain
the ecological health of estuaries: improving water
quality through filtration, reducing subaqueous erosion.
providing a food source, and creating fish and waterfowl
hahitat ... Eelgrass meadows act as a filter of estuarine
waters, removing both suspended sediments end dissolved
nutrients....and eelgrass traps suspended sediments,
clarifying_estuarine waters and reducing resuspension of
sediments. The beds provide a breeding area and nursery (cont'd page 6)
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Foornote 1. see "Habitat Values of New England Wetlands,‘ Us Army Corps
of Engineers, US EPA, US Fish E&Wildlife {Hay 1995} at 15:
"Eelgrass. . .is an ecologically important plant for several reasons.
At full growth, eelgrass may cover acres of shallow bottoms of bays
and estuaries stabilizing sediments and eventually participating in
the successional development of coastal marshes. It is a principal
winter food for the Atlantic brant and it gives shelter to many
other small animals. Invertebrates and epiphytic algae grow on the
plant: others burrow near the roots. Juvenile fish find cover
among the floating leaves. Eelgrass is subject to a blight of
unknown causes, the last episode of which began in the 1930s.
‘Eelgrass communities are still absent from some Atlantic coastal
regions where recovery firm this blight has been slow"
End footnote
=============================
Pg 6
for young finfish and shellfish such as flounder, tom
cod, scallops, mussels, crab and lobster. Eelgrass areas
are frequent stopping points for migrating waterfowl,
many of which consume the leaves or seeds of the
plant...Additionally, eelgrass is an important basis of
the detrital food chain, contributing organic matter to
the estuary.
Short, F., "Distribution of Eelgrass in Penohscot Bay, Maine," (May
15,1995) at 7- 8.
Prof. Short indicates that there are inadequate amounts of eelgrass in Penobscot Bay. Short's report confirms that eelgrass, as an extremely important component of the Bay, is distributed widely in the Bay but in small areas below levels which optimize this resource. He states that "[t]he eelgrass beds delineated in this study [which includes Sears Island] represent an important habitat for marine resources in Penobscot Bay and the Gulf of Maine. "
The area of possible and confirmed beds is small relative to the entire Bay and small relative to the area of the Bay with proper depths for eelgrass growth. Thus, with improvements in water clarity throughout the Bay, the distribution of eelgrass could expand considerably. Nonetheless, the beds shown in the maps represent a widespread and extremely important estuarine habitat that is distributed throughout Penobscot Bay." (Id. at 8.]
Eelgrass most likely supports the following species in
Penobscot Bay:
Crustaceans - Lobster, Rock, Crab
Finfish - Cod, Striped Bass, Winter Flounder, Mackerel,
Bluefish, Pollock, White Hake, Menhaden, Ocean Pout,
Herring, Windowpane Flounder, Tautog _
Bivalves -- Sea Scallops, Blue Mussels -5 -
The impacts to eelgrass from constructing and operating a port on Sears Island are significant. The proposed cargo terminal is
forecasted to destroy jrom 1.3.3 to 35.8 acres of eelgrass due to
direct and indirect loss, depending on the alternative selected.
In addition, the project has a signirioant probability of reducing
eelgrass productivity by 30% - 85% in from an - 250 acres. [DSEIS
We use the term "most likely" because the assessment of
species use of eelgrass in Penobscot Bay is incomplete. Moreover,
this list does not include the many species of invertebrates that
live in eelgrass and provide food for the fished species.
3 Sources: Normandeau Associates Inc.,
"Sears Island Cargo Dry Terminal Marine Resources Baseline Report"; Short, F.,"Distribution of Belgrass in Penobscot Bay, Maine."
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
' 6
for young fitlfish and shellfish such as flounder, tom '
cod, scallops, mussels, crab and lobster. Eslgrass areas
are irequent stopping points for migrating waterfowl,
many of which consume the leaves or seeds of the
plant...hddition.ally, eelgrass is an important basis of
the detrital toad chain, contributing organic matter to
the estuary. '
Short, 11., "Distribution of Belg-rass i.n Penohscot Bay, Maine," {May
15,1995} -at 1'»-a. - . .
Prof. short indicates that there are inadequate amounts of
eelgrass in Penchscot Bay. short's report confirms that eelgrass,
as an extremely important component of the Bay,- is di§j;1;;|,'_1;uted
widely in the Bay but in small areas below levels which optimize
this resource. He states that "[t]he eelgrass beds delineated in
this study [which includes sears Island] represent an important
habitat for marine resources in Penobscot Bay and _the Gulf of
Maine. The area or possible and confirmed beds is small relative
to the entire Bay and small relative to the -area of the Bay with
proper depths .'Ior_ eelgrass growth"-'1'hus, with improvements in
water clarity throughout the Bay, the distribution at eelgrass
could expand considerably. Nonetheless, the beds shown in the maps
represent a widespread and extremely important estuarine habitat
that is distributed throughout Penobscot Bay." (Id. at 8.]
Eelgrass most likely 's1.1pports the following species in
Penobscot Bay’: . _
Crustaceans -— Lobster, Rock. Crab
Finfish --—' cod, Striped Bass, Winter Flounder, Mackerel,
Bluefish, Pollock, White Hake, Menhaden, ocean Pout,
Herring, windowpane Flounder, Tautog _
Bivalves -- Sea Scallops, Blue Mussels-5 -
The impacts to eelgrass from constructing and operating a port
on sears Island are significant. The proposed cargo terminal is
forecasted to destroy jrom 1.3.3 to 35.8 acres of eelgrass due to
direct and indirect loss, depending on the alternative selected.
In addition, the project has a signirioant probability of reducing
eelgrass productivity by 30% - 85% in from an - 250 acres. [DSEIS
We use the term "most ]_1‘_kely" because the assessment of_
species use of eelgrass in Penobscot Bay is incomplete- ‘Moreover,
this list does not include the many species of invertebrates that
live in eelgrass and provide food for the fished species. .
3 Sources: Hormandeau Associates Inc., "Sears Island cargo
Dry Terminal Marine Resources Baseline Report"; Short, F.,
"Distribution of Belgrass in Penobscot Bay, Maine."
PAGE 7
at Table &-a-2; testimony of NHFS: EPA/NHISIUS PWS efleeflsmentsd‘
'l'he size of these impacts are unprecedented on the ooaat of
New England since the enactment of. the Clean Water Act. Yet, the
D5313 rails to provide anything other than a generalized and
inadequate description of mitigation and fails to quantify tne cost
of mitigating the eelgrass impacts of this project-
In the face cf incomplete‘ or missing information in the BIS.
we are left to create our best estimates of the costs of necessary
mitigation. We have utilized a replacement ratio of 3:1 for
permanent losses based on the Portsmouth, 111-! permit condition, EPA
policy and the statements ofnationally recognized eelgrass experts
and 8. 1:1 ratio for acres suffering from reduced productivity. The
acreage needed to he recreated is then 13.3 - 35.8 [xi] plus
aoegso} to B5%(25fl]. The total range is from o low of 63.9 acres
to a nigh of 319.5 acres using the ahove ratios. _ -
Planting costs could he as low as $50,000,/acre if recreating
five acres or more at a time but additional expenses may be needed
to make the habitat suitable for eelgrass. For example, if
eelgrass habitat is - created by building _ a _ subtidal containment
barrier and filling to make the depth of sediment shallow enough
:or'aaequate light penetration, the additional construction seats
could rise above $l50,0Cl0_/acre. '
Utilising a low average cost per acre of $100,600, replacement
of eelgrase permanently lost to direct and indirect causes ranges
from $3.9 million to $10.7 million. In addition, mitigation for
reductions in productivity to 80 - 250 acres would increase costs
by an additional $2.4 to $20.0 million, for a total of $6.4 to $32
million. At a per acre cost of $150,000, the cost increases to
$9.5 to $48 million. Using higher ratios for acres of lost
productivity would result in even higher figures.
Beyond the issue of costs, it is unknown whether eelgrass can
he successfully recreated. The only existing effort in New England
to replace of eelg-rass due to permanent loss is in Portsmouth, ITH
where six acres of recreated eelgrass were required to compensate
fortwo acres of lost habitat. After 2 years, half of the 6 acres
acreage planted failed. Two of the three acres have heen replanted.
at extra cost with indeterminate results. Half of the planted area
“ These impacts from dredqil-|.g are poorly explained in the
DSEIS. Table 4.8-2 should be redone using categories applicable to
HEPA standards: direct, secondary and cumulative impacts from
dredging, inter- and su.b-tidal fill, construction and operations,
rather than the confusing and misleading differentiation between
"Long Term Impacts" and "Temporary Impacts". "Temporary Impacts"
appear to include secondary and cumlllative impacts through port
operations: these may not be temporary and the Chart is misleading-
PAGE 8
is doing acceptable to well. This effort is being conducted. under
the best of all possible conditions due to the relatively high
level of understanding of how eelgrass fares in that specific
location, unlike in Penobscot Bay, where there is no equivalent
expertise. Several conclusions can be drawn from this. First,
experience with eelgrass replanting on the northern New England
coast is in its infancy. Second, the jury is out on whether
replanting will succeed. Third, the scale of mitigation which
would he req'u.1'.red at Sears Island is a multiple of any previously
attempted effort. In essence, l‘t_is impossible to state now that
the requisite mitigation will aver be reasihle to compensate for
the impacts of the Proposed action. '
. The extent of aelgrass in Panobsoot Bay has already been
significantly reduced by human activities and there is little
saltmarsh in the Bay to provide s_i.milar_ functions. ‘Eelgrass is a
type of habitat of great importance to many-of -Ha:Lne's most
valuable fisheries. Impacts OE this size and significance cannot
be accepted. The Clean Water Act permitting standards were enacted
to avoid destruction of this kind of high value habitat. .
Importantly, no eelgrass impacts would occur by uogradinq Hack
Point. ' ' -
B.
The Proposed Action would destroy firom 17.1 to 25.4 acres of
freshwater wetlands. This is a significant amount of habitat which
possesses a wide array of important tunctiuns and values and is of
high value given the diversity of species supported on the island
and the unusual proximity of freshwater and marine habitats.
Recapturinq the unusual mixture of marine and freshwater
habitats that exist on Sears Island would require restoration or
recreation at a coastal site. For example, some birds use and
benefit from the unique marine and freshwater juxtaposition. For
example, tree swallows use mud from intertidal habitats to make
nests: salt water based waterfowl, such as black ducks} will use
freshwater plants for food and nesting material. It appears from
the DSEI5'th&t HIDOT was unable to locate such sites.
For forested wetlands, restoration {of£—site damaged or
destroyed wetlands} or recreation costs approximately $100,000 per
acre, or $1.7 to $2.8 million.
II. flue Proposed gction Fails‘ to Provide Adgqgite _
All of the design scenarios set forth in the EIS for Sears
Island have significant and unacceptable environmental impacts.
Clean Water hot guidelines prevent issuance of a permit where
Page 9
the impacts of a project would result in signiticant degradation of
waters or the United States. Preservation or out of. kind
mitigation, or the type suggested in the DSEIS, is simply
inadequate because the impacts would continue to contribute to
significant degradation of waters of the Us and will not replace
the functions and values of the impacts that will be destroyed.
It is not possible to evaluate the permissihility or a build
option which contemplates such massive 'envLro11mental impacts
without an adequate mitigation plan. The plans and approaches
presented are inadequate tor all impact areas.
-In particular, the mitigation plans tor eelgrass impacts are
strikingly inadequate. Section 6 asserts that avoidance and
minimization or impacts to eelgrass has been achieved to the
maximum extent ‘possible. _ In tact, any oi the preferred
alternatives would have massive direct and indirect. impacts. so:
those impacts, which range from 13.3 to 35.3 acres'o:E_ direct and
indirect eelgrass loss, the DSEIS in section 6 contemplates a
"minimum area" of 5 acres. - "
' Any mitigation plan must provide information on the specific
ways that the destruction oi 13 — 35 acres or eelgrass habitat will
be compensated, including the costs of suoh mitigation. lloreover,
such plans must provide information on mitigation for the 80-250
acres _ of eelgraes hahitat that will likely suffer reduced
productivity iron port operations. _ Surely, having engaged
oonsultants to speculate on virtually every possible aspect or the
project, including such vague predictions as induced and indirect
employment creation, and having already assessed the probability of
damage to 80 - 250 acres or eelgrase habitat, the D5315 can provide
MIJo'I"s mitigation proposals tor these impacts. Such proposals
could take the tom or estimated ranges following Tahle 4.8-2 but
must include costs, sites and likelihood of success if the
mitigation proposed is restoration or creation. ' _ I
without such mitigation proposals, the only conclusion that
permitting agencies oan reach is that the -we Guidelines preclude
issuance or a permit. - _ _.
I133 _ '
R. '1’EE SECONDARY AND CUMILATIVE ].'.I';PAC'I.'
Qfififlfififlflflfl [§ IQADEQHQIIE
CLF has reviewed the memorandum prepared by Kaine DDT
concerning whether the SE15 needs to -review impacts in the source
area related to exporting wood chips and find it overly reliant on
distinctions from other situations which are overwhelmed by the
facts‘ of this project. we are convinced that HDOT and ifflwh are
wrong and subject to yet another reversal in the courts if they
adhere to their interpretation of HEPA requirements on this point.
PAGE 10
:|. _ The DSEIS Fails to Examine the Secondary and Cumulative
- Impacts to the Health of the Forest tron the Export of
Wood Chips _ _
The Proposed Action contemplates the export of 600,000 tons of
Wood chips annually, rising to 1.5 million tons annually. This
cargo constitutes over B52 by volume of the total amount of cargo
fcrecasted for export, making this commodity the single nest
significant cargo that the port is designed to accommodate. The
DHKI5 agrees that wood chips would be a "major Eoracasted "cargo." [2-32.] The 1995 DSEIS predictswood. chip exports that are from
2.5 to 6 times as large as torecasts made in 19:16 and 198? Boo:
Allen studies. Despite the key role that building the port will
have on creating a market tor wood chip export, the users utterly
fails to examine the environmental impacts from creating a wood
chip market. Hor does the DSEIS examine the potential detrimental
Q impacts of exporting these volumes of wood chips.
-
a) A Direct Causal Relationship ‘Exists Between
Construction of the Port and the
export of Woodchips
The MDOT makes clear in the Draft that facilitating the export
of wood chips is central to the Proposed Action. The DSEIS states,
on the first page oi the Draft, that no market would exist for wood
chip export absent construction of the port: _ _
In the case of wocdohips, there is little or no export
activity, despite the market potential, because cost-
effective transportation is not available.
(5-1-2.] In other words, hut for the construction oi the port,
there is no prospect for the export of wood chips because a cost-
ef-Eective transportation facility does not exist. So central is
wood chip handling and export capability to the Eropoeed Action
‘that the M12!-0'1‘ refiused to examine alternative sites and port designs
that did not incorporate the -capability to export wood chips:
HDO'.'l'.'..fo1.1nd ‘the idea oi eliminating a major foraoasted
cargo unacceptable. . .1l.DUl' concluded that the no-wocdchip
alternative is technically and economically unsuited to
the project's core goals. (2-32.}
Yet, even though olearly establishes the causative
relationship between wood chip export and the Eroposed Action --—
that wood chips can only be exported it the port is built {and
would not he exported if the port is not huilt} -- the DSEIE fails
to examine the_ secondary and cumulative impacts iron the export of
wood chips. _
The omission of an analysis of impacts to the forest in the
service area is intentional, perhaps best explained by Sears Island
PAGE 11
[The] project manager for the MDOT at a comunity forum held earlier this year:
t
"he Department of Transportation is not the entity that
makes forest practices decisions. That is a fact.. That
is up to the Department of Conservation and Maine
Forestry 5ervice.- However, we do recognize that there
are a lot of concerns about wood chips. Wood chips were
.identified by our consultants as a cctential cargo to be
shipped out of the port and in designing the port we have
to address the needs of all of those potential cargoes.
so, that has been included in the product mix. If you do
not favor wood chips,-if you feel that it will deplete
the resources, then indeed we encourage you to speak out
on that. The torum for doing that is not a
transportation project though. The forum for doing is
with the Department.o£ Conservation. -"
end
Transcribed remarks of Brian Nutter, MDOT Project Manager, in
"Proceedings of a Community Forum on "The Sears Island cargo Port Project: Finding Common Ground", May 6, 1995, Belfast, Maine.
The preparers of the DSBI5 confuse the purpose of the NEPA
process and the BIS with the question, irrelevant to NEPA's impact
assessment requirements, of_which state agency has jurisdiction
over forest practice regulation. The purpose of an BIS is to
provide critical information on all reasonably foreseeable
environmental impacts directly, secondarily or cumulatively caused
by a proposed action. There is no question that facilitating the
export of wood chips is central to the Proposed Action. NEPA
requires that the impacts of that newly created activity, induced
by the creation of the port, be examined, regardless of whether the
HDOT regulates forest practices.
b) The Record Shows that Facilitating the
Forecasted Export Volumes of Wood Chips would
Have a Reasonahly.Foreseeable Impact on Forest
Practices and the Health of the Forest in theSource Area '
There is ample evidence that facilitating the export of-large
volumes of wood chips could have a detrimental impact on the health
of the forest in the source area that the_Proposed Action is
intended to serve.
* The forest may be unable to supply quality hardwood
chips without detrimental environmental and economic
impacts .
Research conducted by Maine experts on wood supply pointedly
raises concern over the adequacy of the Maine woods to supply wood chips. A report by Prof. Robert Seymour and Ronald Lemin at the
PAGE 12
cooperative Forestry Research Unit at the University of Maine at
orono predicts that sustainable levels of harvests of maple, birch
and other species are below current harvest levels as well as
projected levels of demand. Seymour and Lenin concluded that
demand ror "Tolerant Hardwoods" in Maine would fall short or supply
in the year 2000 by "$99,000 cords, or roughly 1.2 million tons."
gee Seymour and Lemin, "Timber supply Projections for Maine, 1930-
2000" (CI-‘RU Research Bulletin 7, 1939) .
i The Proposed Action will Exacerbate Poor Forestry
Practices '
The Irland Group makes the point that about 30,000 acres would
need to he harvested to supply an export volume of 600,000 tons.
[Irland at 23.) Although this constitutes only 1% of the area in
the hinterland, Irland points out that only 2-42: of this land area
is now being harvested- The increase. in harvested acres needed to.
supply these export levels represents a 25% - 50% increase in
currently harvested acres. What implications does this have for
the health of the forest? Irland's report confirms the views of
many that current forest practices are poor and that creating a
market to export high quality hardwoods could exacerbate poor
forest practices, such as highgrading, already prevalent in Maine's
forest industry. _
The Irland Group report concludes that:
At present, llaine chips do not appear to he competitive.
As the world markets improve, Maine's emergence as" a
high-cost supplier se- possible. Shipments in the
range of 200-300,000 tons per year could he feasible.
This design should pose no serious _resou.rce supply
issues. . Achieving shipments of 600,_000 tons at the end
of 10 years seems optimistic hut cannot be excluded iron
r>eeeibi1i1=Y- Eeeplyins ens}: a level egevmeree would
pgsh the 1131;; of supply upless it becomes possigle to
- reach yell intolgroostgok Coupjy. ‘We cannot he_con§j,gent;
phat Aroostook gggrces woI.1],Q_be Jeasigle, however.
and Irland asserts that:
jimcrease or 600L000 tops...would b&_fl_1_‘lE5t,5 times as
lemeeae the estimated evuzalus of eut-
Reaching 600,000 tons would depend. on tapping surplus
low-grade growing stock, and bidding wood away from other
users. To rely solely op ugpeeded grcwigg_stock would
require e Lee; of qualihv rarest nenasemenr the?-=
congul§Q;lts_dg_|;|ot heligye e;_;1_sts__i5 the a_1;e_a.
The Irland Group, "Technical Memorandum in Support of Secondary
Impacts analysis for Development of-Sears Island Marine Dry Cargo
Terminal, Assessment of Forest Resource Impacts 0! Hardwood chip
PAGE 13
Exports From Searsport, Maine," (December 12, 1954) .
Moreover, t‘he Iriand Group report concludes that shipment or
wood chips by rail in the hinterland is not. cost-effective. The
cost-effective area is that defined as the truck hinterland. To
the extent that chips would he produced from the limited truck
hinterland area, then the impacts to the torest in this sub-region
could he intensive. '
In other cases, lead agencies responsible tor preparing
environmental impact statements under HEP}; have been responsive to
public concern over the need to examine forest impacts from
chipping operations and export. In February 1.993, the Tennessee
Valley authority [lead agency) , US Army Corps of Engineers and Us
Fish & Wildlife service released the ‘Final Environmental Impact
Statement regarding proposed wood chip port terminals on the
Tennessee River. [1115 -- ghip 31],], Terminal-g Q11 the Tennessee
Bigegj, Hg. mygggcgggg-9::-3 (Zeb. 159;]. ._
as the FBI5 abstract summarises:
The impact analysis includes hoth localized (on-site} and
procurement area (off-site] impacts. -Localized impacts
are those that are directly or indirectly associated with
construction and operation of a barge terminal, use of
TVA land for access to the barge terminal and use of
adjacent private land for a chip mill. EE§Q
Miter
weighing the potential impacts of the pending requests
with the likelihood of substantial, cumulative localized
impacts and the risk of significant harvesting-related
impacts, ':|L'vA's preferred alternative is denial or all
proposed actions- ' - '
Like the proposed Sears'Island port, the chip port terminal
proposal was sited and designed to export large volumes of wood
chips, up to 1.9 million tone annually at full capacity. comparable
to the 1.5 million tons annually forecasted to be exported from the
sears Island port at full capacity. [WA FEIS at 29.) Like the
sears Island proposal, the proposed Tennessee ports proposal were
sited for their proximity to raw materials and existing
transportation racilities, location on a water source with cargo
capacity, and as a favorable site for potential suppliers and
customers. (IQ. at la.) - '
The. source area assessed in the Tennessee-Chip Hills BIS was
determined to he a general area within a 15 mile radius of the
chosen port site -- somewhat smaller hut nonetheless similar to the
Sears Island port proposal's service hinterland and quite similar
to the area determined by the Irland Group to constitute the cost-
effective portion of the Sears Island hinterland, the truck region
labelled the "Capital Area" in the Irland Group report. (35. at
PAGE 14
28-29.] The dominant harvest methods were determined to he
cleaz-cutting and highgrading -— similar to the Irland Groups’
assessment that hiqhegrading would he a foreseeable form of
harvesting in the Sears Island hinterland area, a form of
harvesting that Irland suggested could exacerbate already poor
forest practices. (IQ. at 29, 56.] And while the solo purpose of
the barge port terminals in Tennessee was to chip and export wood
chips, a core goal of the Sears Island port is to create the
necessary conditions to allow the export or wood chips from the
service area. We fail to discern any meaningful difference between
a port devoted to 100% shipment of wood chips and a port devoted to
B5% shipment of wood chips. -
c} The SDEIS and the Record Devote Extensive Attention
to the Purported Secondary and Cumulative
Socioeconomic Benefits in the Hinterland Associated
with the Proposed Action Yet Pay No Attentiontc
the Corresponding Environmental Impacts in the
Hinterland - e '
The DSEIS devotes extensive discussion to the purported
socioeconomic benefits the Proposed Action would have in the multi-
county "hinterland" area. In Section 5 of the DSEIS, the secondary
and cumulative socioeconomic benefits consume over seven pages of
summarized material derived from two consultant reports , including
a 50 page report by RKG Associates, Inc. which was made part of the
official DSEIS. In addition, the primary impact discussion in
section 4 includes another six. pages of summarized material which
includes g socioeconomic impacts and ‘other claimed economic
benefits of the port well outside of the construction area.
The record for the proposed port is replete with references to
woodchips, woodchip facilities, hinterland sourcing areas which
would provide the woodchips, and numerous studies on the economic
feasibility of servicing the woodchip market in the Par Bast. The
following is a glimpse at some of the studies prepared for M00’!
which include information which confirms that the impacts are
neither speculative nor indefinite, and require analysis in the
SEIS:
Ir "Review of i987 study of Market Demand . . ." sooz Allen
Study, 1992. (M00? commissioned study estimates a
first year base line of 600,000 tons of woodchipe to he
shipped from the proposed cargo port.)
* "Alternative Site Review: Woodchips as a Stand Alone
facility." Booz-Allen Study, July 1993. {report on the
feasibility of a stand-alone woodchip facility at the
proposed cargo port. Concludes that a woodchip facility is
not viable unless built in conjunction with a multi-
purpose cargo port.)
PAGE 15
1 "Reiteration or Booz—Allen's Position on the Viability or
projected Woodchip Export Levels - revised" December 14,
1994, at Page 1- (HDOT commissioned study estimating that‘
"60u,nDn tons or woodchips could he moved out of the State
or Maine . . .")
i "opportunities for Exporting Hardwood Pulpwood Chips from
Heine to the Far East" D.H. Pield and R.H. Forster. Forest
Products Trade Group Department of Forest Management,
University or Maine, Orono, Maine, at page 37. (Conclusions
include: {1} "Maine's hardwood timber stands, in their
present condition, do not have the long-term, sustained
growth capacity to supply both existing domestic and export
demands. Indeed, current annual growth cannot even support
current, annual domestic demands." (2) "the people of Maine
would benefit more from the production of products with high
added values from its forest resources than from exports of
raw materials . . ."]
* "Technical Memorandum in Support of secondary Impacts
analysis ror Development of sears Island Marine Dry cargo
Terminal, Assessment or Forest Resource Impacts of Hardwood
Chip Exports From .Searsport, Maine." The Irlend Group,
oeceher 12, 1994. It is not explained in the D5215 why the
Irland Group memo on secondary impacts was not included in the
16 volume users. ' J
Recommendation
As an HDUT consultant states in a report incorporated into the
official DSEIS: "Considering all resources, the zone of influence
of a dry cargo terminal on the mid-coast of Maine extends
throughout the hinterland beyond the area that the terminal could
service.“ Hcrmandeau Associates, "Karine Resource Impact
Assessment and Mitigation" {April 1995) at 259.
Legally and factually, the agencies charged with preparing and
evaluating the DSEIB cannot focus on the secondary and cumulative
impacts of only selected topics, such as economic benefits, and at
the same time refuse to examine the foreseeable" detrimental
environmental and economic impacts in the same geographic area.
There is ample material in the record and elsewhere indicating that
environmental impacts in the hinterland are foreseeable and require
analysis. There is also amply demonstration of public interest and
concern in seeing these impacts assessed.
‘The railure of the users to examine the impacts on the forest
and forest practices in the source area of exporting torecasted
volumes of wood chips renders the Drafit deficient by violating in
an arbitrary and unsubstantiated manner the requirement under
applicable RHPA regulations to examine the clearly foreseeable
secondary and cumulative impacts of the proposed action on the
Page 16
environment -— and leaves the puhlic and decision makers in dark as
to the foreseeable impacts of the proposed action on the forests of
Maine. The Draft must be substantially supplemented to examine the
secondary and cu.mulati've impacts on forest practices and the health
of the forest in the source area for the proposed action.
2. The SDEIS Fails to Examine the Detrimental Secondary
and Cumulative Impacts on Current Employment from
ghe Eggagt of Forecasted Vo1umeLof Wood chips
Similar to its failure to discuss secondary and cumulative
impacts to the florest and environment in the hinterland from wood
chip export, the DSEIS fails to examine the potential detrimental
economic impacts, particularly employment Losses, from diverting
wood chips from in—state uses for export overseas.
The Irland Group report makes 'a "reasonable assumption" that
at a 600,000 ton per year export level, 200,000 tons, or fully 33%
of the total volume, would he diverted from current" users."
[Ir].-and Group at 20-29.] at 300,000 tons per year, 50,000 tons
would diverted tron current sources. Irland identifies current
uses as "pulpwood, tirewood, and pallet wood diverted from existing
users." (Id. at 25.] Although Irland states that these amounts
represent a small portion of current consumption, other statements
made by Irland indicate that these yolumes represent potentially
significant portions of current wood chip consumption hy existing
businesses. At a community forllm in Hay 1995. Irland stated that
major pulp mills in Kaine use 600,000 tons a year of hardwood
chips: 1.4 million tons oi firewood; and 600,000 tons of biomass
fuel. In other words, 600,000 tons of hardwood chips represents
100% of Maine's hardwood pulp consumption: 1.00% of Heine's biomass
consumption; and over 40% of Maine's firewood consumption. (Ea
attached comments from community forum.) These are clearly numbers
with significant potential market {and harvesting) implications.
Diverting chips from existing users could [1] act to reduce
employment at current users and/or (2) increase prices for the
export material. Either impact may be significant and the fiinal
BIS must assess the detrimental economic and employment impacts of
this diversion. _ - .
As a followup to the Irland Group report of December 1994, the
RKG socioeconomic study contacted Irland who, according to REG,
confirmed his view that "if the woodchip export amount
substantially exceeded 600,000 tone on a sustained basis, there
might be intensified competition for torest resources uglges the
woodchip supply was obtained from fllgzpghggt the oost-effective
hinterland." (RKG at 35.} Of course, Irland had concluded that
the rail-defined hinterland was not cost-effective and that wood
chip supply would most likely come from only the truck-cost
effective portion of the service area and is reported to have
conifirned this conclusion. LE.) In response, RKG generically and
PAGE 17
vaguely suggests that the BAR- would work to lower rail
transportation costs. Surely, if the RKG report indicates
anything, it is that the issue of the potential diversion and
resulting detrimental price and employment impacts is very much a
foreseeable yet unexamined issue.
=
A supplented EI5 must assess the likelihood of diverting
wood chips from existing users and the resulting detrimental
economic and employment impacts higher prices and diverted supply
would have on existing pulp and wood product manufacturers as well
as on firewood prices. '
H. H.v_I.' '. ' .& l].=1.L;i N1 ;.s..; ._ . - "__; kl‘ U
1.
The purpose of a "no—action" alternative is to enable the
public and decision-makers to compare impacts of a project to
present conditions and therefore understand the environmental
consequences of proceeding with a project. Rather than doing this,
the DSEI5 emphasizes that a "no-actiop" alternative would he
alternative development of sears Island in the form of large scale
construction of residential dwellings. -'
There are at least as many reasons to believe that residential
construction is speculative at best. There are no known public
plans for such a development. the real estate market for vacation
and second homes on coastal Maine is-depressed and construction, on
speculation, or such units is not likely to be economically prudent
for msny years. No assessment of the time frame in which such
development occurs is made in the DSEIS and none of the factors
which make residential development "an uncertain scenario are
provided. Without residential development plans in hand, the
public is not provided key information -— such as how residential
development of the scale advocated in the DSEIS would avoid
wetlands impacts. '
Given uncertain economics and the difficulty in -financing
speculative second home development, it is equally foreseeable that
the island will remain undeveloped. The no-action alternative
should emphasize the continued status of the island in its present
state.
2- The Sfless e£_al!=ernel;i!e=,A55=s=efl .
The DSEIS proposes Sears Island as the only preferred site for
the Proposed action and sets forth 12 "alternative" designs for
Sears Island. These 12 designs are essentially modified versions
of a single alternative: a cargo port on the island that would have
similar, significant impacts to the marine and terrestrial
-------------------------------
PAGE 18
environments .
The alternatives requirement in NEPA is not met by relabelling
a single "alternative" as an alternatives assessment.
The scope of alternatives should be expanded to include a port
that does not accommodate wood chip export. Some 40% of the space
needs of the port are devoted to-wood chip storage and handling.
The record is clear that wood chip export may not he economically
feasible and is speculative. The public outcry over subsidizing
wood chip export also indicates that a port which tocusses on wood
chip handling is unlikely to garner public supporttor investment
and therefore public funding. tor a port that is designed to
accomuodats wood chip export is extremely speculative at best. If
the purpose of the Proposed Action is to build a modern, efficient
dry cargo port in mid-coast Maine, then the goods that would meet
that goal are not low-value, raw materials. Site selection and
assessment of alternatives that does not centrally accommodate wood
chip ex.-port capability would still remain consistent with the
project goals.
The alternatives assessment should also fairly examine the
possibility of siting the port on Hack. ‘Point. -
3. Modernizing Hack Point Is A Less Damaging and Practieable
al The Rejection of Hack Point as a Viable Alternative
is §I_onclus_ggr__and_ Flawed _
The DSEIS rejects modernization or the existing port at Hack
Point, Searsport as a feasible alternative to constructing a new
berth on Sears Island. The DSEIS discussion is replete with
conclusions in search of tact and conflict with inrormation
relevant to the issue that is not mentioned or discussed in the
DSEIS. -
. ij The Erior Court jlecision
‘He understand that FHWA and the Corps may believe that a prior
court decision provides support for excluding Heck Point as a
practicable alternative to sears Island. Without setting forth our
own legal interpretation o£ that decision, we urge Fl-INA and the
Corps to take notice of the significant difference in the port
proposal since this case was last reviewed in the courts.
Much has changed since the Army corps issued prior permits and
since the 193‘? FEIS in terms of the scale, size, environmental
impacts, costs and economic. claims. In many respects, the concept
of building a major new major port on Sears Island tied to a large
industrial park has evolved to little more than an expensive,
single marginal dock dependent upon wood chip exports not
Page 19
interconnected with an industrial park. A Eew of the key changes
in the project are important to consider as the federal agencies
continue their review of this proposal.
1- Employment generation -— The 198'? FBIS suggested that up to
2750 direct and indirect jobs would be created by the proposal.
The 1995 SDEIS indicates that only 293 direct, indirect and induced
new jobs would be created.
* Environmental Impacts -- The ecological significance of the
terrestrial and marine environments at Sears Island was tar less
known at the time or the 1.957 H115. Unlike then, now we know that
tne island is covered by over 200 acres of wetlands. Unlike then,
we now know that hundreds of acres of delicate and highly valuable
eelgrass plants surround the northwestern shores of the island. It
is difficult to understate the significance of this change in
knowledge in evaluating the proposal and its environmental impacts
and comparing these impacts to Hack Point.
Ir scope of the sroject -- The 1537 F215 discussed a project
that would commence with 3 berths, he expandable to 6 berths and
incorporate a 150 acre industrial park. Now, the project consists
or a maximum of 2 berths and a 50 acre industrial park which the
DSEI5 indicates will never be ‘built because it is not economically
viable. '
1 costs --- The 193? FBIS discussed a project that would cost
around $20 million: the 1595 DSEIS discusses a project that would
cost at least $50 million phage the 53.7.5 million already spent.
This rigure is tor construction only; it does not take into account
costs associated with the Earlier Action nor mitigation costs.
1 Transportation cost savings — The 1987 FEIS estimated some
$2.7 million per year in reduced transportation costs. The 1995
DSEIS estimates that only $1-‘|1O,D0Ofyear would be saved, growing to
only $1.1 million 20 years from now.
* wood Chip Export --- although a part of prior cargo
projections. the role of wood chips as. an export cargo has gone
from an "also ran" category to become the overwhelmingly dominant
cargo to he shipped out of a new berth: the present wood chip
export figures are a large multiple of the amounts predicted around
the time of the 1987 FEI5. ‘Hood chips have become the predominant
cargo. This affects issues or acreage and impacts.
s Dredge -- The l9s'? FEIS predicted that 3.1 million cubic
yards of dredge would be required tor Alternative A (Mack lvoint)
and 2.1 million cubic yards at Sears Island. The 1995 DSEIS
predicts 1.‘! million cubic yards at Hack Point and 459,Dll0 cubic
yards for Sears Island design D-l, 90,000 for other alternatives.
At the time dredging was suspended in June 1985, 3fl3,llOO cy had
been removed. [1937 FEIS at iv.) These discrepancies are large and
PAGE 20
unexplained. Moreover, the 1995 report by Kimball Chase Company
Inc. concludes that dredge needs at Mack Point are equal to those
needed at Sears Island.
The differences in project scope, design, impacts, cargoes and
economic value that have occurred In the eight years since the last
FEIS are significant and fundamental. to all aspects of the Proposed
Action. They alone require the Corps and FHWA to take a fresh look
at Mack Point and not rely on earlier assessments.
ii} Space Availability, Business Disruption
The real issue regarding space at Mack Point is whether
currently vacant space and under- or poorly utilized space can he
reccnfirgured to support project purposes. '
There is no evidence in the D5215 that any meaningful,
cooperative efforts have even been required of existing businesses
.on Mack Point -- Sprague Energy, Irving oil, the BAR and the
Department of Defense's Federal Fuels Facility -- with respect to
formulating a plan to use the space at ‘Mack Pflii-I11; in H EDIE
efficient "manner. without this information, it is on an entirely
arbitrary basis that any agency would assert that space is
unavailable.
As EPA points out in its Sept. 29 letter, there are a ‘number
of variables which directly affect the question oi! space
availability. The DOD is apparently downsizing the Federal Fuels
Facility from 9 tanks to 4 tanks, raising questions regarding space
availability. .('I'here is, incidentally, no reference in DSEIS to
this fact. Rather, we find this information not in the EIS, but in
a local newspaper one week before the public hearing.)
Moreover, the HDOEII‘ has stated that it plans a. two phase
approach to the port. Phase "One would include construction of one
berth. According to this plan, Phase Two, a second berth, may or
may not ever he implemented. _If the DOD were to leave Hack Point,
even in 10 or 15 years, there would be more than adequate space for
the expanded facility at Hack Point. The DsEI5 is silent with
respect to this plan.
The 404 Guidelines define a "practicable alternative" as one
that is "available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of
Overall Pr==Ii==1= P11I'Pfl5B5-
gltermativer an area nit J:reselt],y_,,om;ed_hy the ap_plicant__q]1j;,n
e obtains-L utilized‘ exeanded fl;_s_n_e__ina a ed
e heel-=1 P11133056 3f__\?1!e Pr0EfiedA
-" (40 CPR 5230-I-0(a) (2)1-
These regulations impose an obligation on HDOT, FHWA and the
--------------------------
PAGE 21
Corps to obtain hard evidence regarding the logistics or layout and
configuration options on neck Point. The fact that the regulations
approve consideration of property not owned by the applicant
indicates that the less drastic option of some "disruption" of an
ongoing business in exchange for long tern public and private gain
does not provide a bright line basis for excluding an appropriate
site for alternative assessment.
The Kimball Chase report provides helpful information
regarding layout and claims of business disruptiflm The repflrt
states that there is sufficient space and that it may be possible
to reconfigure with minimal disruption (i.e. , an access road where
the salt pile is located] . It appears that the preliminary design
set fiorth in the Kimball-Chase report contains a configuration
approach unlike those reviewed by HDOT. For example, the new
bert‘n(e-} are located adjacent to the dredge channel,‘ calling into
question whether KDOT has ever taken a-hard look at Hock Point with
a view or attempting to make Hack. Point work.
In fact, the approach taken by Kimball Chase appears to be to
try and rind a way to make Hack Point work to rultill the goals of
the Proposed Action. The approach in the DSEIS, by contrast,
appears to he "to provide narrative discussion to supports a pre-
detex-mined conclusion that Hack Point cannot provide for project
purposes. Given the significant environmental impacts that would
occur at Sears Island, and the dirticulty, expense and
indeterminate possibilities of success in mitigating lost resource
functions and values, the corps is unable to issue 404 permits
consistent with the law. Upgrading Hack Point then is the only
Viable option for a mid--coast port improvement. We urge ‘FHWL, HIDOT
and the Corps to reconsider Hack Point in this light. -
m] H -
The DSEIS acknowledges that with modification of the federally
maintained dredge channel, navigational approaches to Hack Point
would be "acceptable" but asserts that dredge costs would be
excessive and wave and wind action would make Hack Point less
optimal than a berth on Sears Island.
The discussion in the Draft raises more questions than it
answers. ‘EDD? is concerned with wave and wind action affecting
ships turning at I-lac]: Point with broadside impacts. Normandeau
Associates notesthat "winds rrom the south and southwest reach the
upper bay unbufreted. Thus, while the upper bay" is fairly
protected from predominant winds (from the northwest], it is
exposed to storms which generate the highest wind conditions."
("Marine Resources Impact Assessment", April 1995 at 243.) We note
that south and southwesterly winds predominate in the summer.
There is no explanation why south/southwest windswould impact a
north/south oriented berth at Sears Is}.-and any less than at Hack
Point. There is no information in the DSEIS supporting a
===============
PAGE 22
conclusion that a north/south oriented berth could not be
configured on Mack Point. The Kimball Chase report concludes that
a north/south berth could be built on Mack Point with an east/west
berth as a secondary back up.
kvailable data does not reflect level of dangerous seas
claimed by port proponents: even data presented in Table 3.7-2.
indicates that wave action above 2.5£t occurs only 2% of the time.
Oil tankers of equivalent size to dry cargo ships have arrived
at Mack Point for years and would continue to do so even if a berth
is built on Sears Island. Ships would turn broadside to south and
southwesterly winds at both Hack Point and Sears Island.
The statement that Hack Point lsleee optimal tor navigability
requires factual justirication: How often would wind and wave
action occur that would pose navigational problems to shipping?
I-low many ships would be detrimentally affected annually? How would
oil tankers coming into Hack Point be affiected by the sane and wind
and wave action? again, when agencies other than the applicant
review the data, the facts do not support the concern. g US EPA
Letter to Lt. Col Bradbury, Sept. 29, 1995. -
iv) Eoodjhip and <I¢=aL_<!erus.mi.n§-bion
- we {ind persuasive the evidence set torth in the ‘Kimball chase
report regarding the claim that Hack Point is not viable in part
because of the potential perception among potential buyers that
wood chips stored on Hack Point will be contaminated by coal piles.
As Kimball Chase points .out, many ports handle and export cargoes
which have the ' potential for cross-contamination and yet
successfully avoid the problem.
' More fundamentally, however, we find it objectionable that the
state would contemplate subsidizing the. export of large quantities
wood chips and imposing as a centerpiece of the alternatives
assessment siting and designing a port around wood chip export
capability. ' I .
v} E111, Qredgg and Engigogmggggl lggacts
HDOT claims that much more extensive dredging would be
required by upgrading Hack Point and would be more expensive and
environmentally damaging than at Sears Island. We have been unable
to locate the basis for the claim by HI!-Oil! that 1.7 million cubic
yards of dredge would be required at Hack Point. by contrast,
Kimball Chase has investigated the issue of dredge mounts and
concludes that the amounts would be similar at Mack Point and Sears
Island. We see no reason to doubt Kimball Chase's conclusions.
Horeover, the DSEIS suggests and, in the promotional material,
Hormandeau associates directly states, that the wetland resources
------------------------------------
------------------------------------------------------------------------------
24
(in the two year construction period when reduced
transfer payments are maximized). £'ort expenses,
including operating costs, a sinking fund and reasonable
debt service expenses, total $6 million, leaving an
annual deficit of $4 million.‘
* of the 293 jobs predicted to he created, 40% are due to
wood chip export, a market the Irland Group concluded
Maine cannot presently compete in..
* The Town of Searsport could lose revenue, according to
EKG. Its two sources of revenue-are the property tax on
Sears Island, which would go to zero under the I-‘roposed
action as the land become untaxahle state property, and
the personal property tax, which will {all as equipment
depreciates and which a state tax. credit was enacted in
1995. _ .
i There ie_ no marketing study that justifies claims that
Maine businesses would transfer export {ram other ports
to Sears -Island. For example, some major forest products
companies in the defined service area ship goods out of
. Port Elizabeth, NJ, bypassing not only Heine but Boston
due to their need for highly specialised port equipment.
* The absence of a viable cost/benefit analysis that
would set forth the port's viability under different
cargo mixes. This is particularly important given the
high degree or speculation associated with all or the
forecaster! cargoes. - .
The economic claims tor the Proposed Action are so speculative
that they are little more than assertions. The efforts by l\mo'1' to
undertake marketing studies post public: review of the nsBIS, the
governor's press conrerence announcing the results of the Bangor &
Aroostoolvs confidential marketing study are each, in our view,
efforts to attempt to correct the poor economics of the project.
‘What if the port does not export 110,000 tons of hreakhnlk and
container cargo? What if the wood chip market doesn't materialize?
The "rule of reason" under NEPA requires more accurate and
5 Wharfage revenues are estimated at $1.1 million, reduced
unemployment costs at $590,000" (during initial two year
construction- period only}; ififlreased sales/income taxes at
$370,000, for a total state economic benefit of $2,060,000. Costs
are estimated at $2.5 million for debt service (based on only a $50
million construction figure), $2.5 million for a 20 year sinking
fund and operating expenses at $1 million, for a total estimated
cost of $6 million-
25
meaningful information than what has been provided in the DSBIS.
We also believe that the Corps must consider the shaky economics of
the project under its general public interest balancing guidelines.
The creation of economic benefits and jobs has been a "selli-‘flq
point" for the project, even stated as a project purpose, yet the
information developed to date gives more cause to believe the port
will he a drag on the state's fiscal resources. .
\'- lflstieisnciaa in Omecnraaa <>f_tneJfiEI§
A. sistamliocisemr '
In section 1.3 and in Section 7, the DSEIS discusses laws and
policy statements including 'I5'1'E.i\, the Maine Sensible
Transportation Policy act (STPAJ and HDOT transportation plans.
These discussions are incomplete and presents a one-sided
description of several key public policy materials.
1. _flm
ISTEA established some important national goals relating to
changing traditional views of transportation infrastructu.re. The
statute emphasizes public participation in transportation planning
and encourages public policies designed to shift the traditional
emphasis of federal and state departments of transportation
emphasis from road construction to alternative transportation modes
such as bicycling and pedestrian paths. '
Although the general concept of investing in port
infrastructure is consistent with ISTBA, ISTEA does not provide a
basis for port infrastructure investments which willencourage
increased use of roads, create additional traffic congestion,
encourage increased use of truck freight and significantly damage
high value natural resources. The Irland Group report concludes
that the rail‘ area of the "hinterland" is not cost-effective in
moving "goods _to sears Island based on current economics. Irl-and
concludes that the source area for wood chips will be the greater
Augusta area, the so—cn1led "Capital Region". Accordingly, the
Irland report indicates that the port will greatly encourage truck
traffic into searsport, a result ISTEA does not support.
similarly, the Maine STPA policies, which the DSBIS claims
that the Proposed Action complies with, encourages public
participation and decentralized planning decisions. By encouraging
freight by truck, by adding to existing road" congestion and by
destroying high. V-aJ.‘:e terrestrial and marine "ecosystems, the
proposal is inconsistent with cent:-:al_elements of state policy
embodied in the STPA: ' .
1 the Proposed action will not "minimize the harmful
effects of transportation on public health and on air and
water quality, land use and other natural resources." 23
26
MRSA §73{3][A]: and .
* the Proposed Action will not "reduce the State's
reliance on foreign oil and promote reliance on energy
efficient forms of transportation.“ 23 MESA §'?3(3} (D1.
2. 1~[@'I‘ State Traggggrtggign E] ans
The DSEIS makes reference to transportation plans prepared by
the rmoqt: the 1993 Heine "Transportation to the Year 2002: A
Capital Improvement Plan for Maine" and the 1995 "25 Year Statewide
Transportation Plan.
The DSEI5 discussion of these plans is selective and omits
relevant information. For example, the 20 Year Statewide
Transportation Plan reports a $1.4 billion deficit in Heine
transportation needs, including 5153 million for rail. IIDOT
drafters of the 20 Year Plan emphasised support for the Sears
Island port yet simply ignored comments critical of the Sears
Island proposal. The 20 Year Plan refused to prioritize projects:
there is no basis tor asserting that the plan establishes the Sears
Island proposal as anything other than one of the spending projects
the HDDT has identified in the plan. Moreover, the IJSEIS should
make clear that many believe that an improved portat Hack Point
would serve the so--called Three Port Policy, farticularly as the
Proposed Action has been. scaled back so sign ficantlyirom when
first proposed.
3._ Other public p1an§L§udies_no d in the @1315
other state plans and commissions have issued reports which
are relevant to the Proposed Action and in many respects conflict
with H1301‘ positions. The 1995 Commission to study the Future of
the Paper Industry considered many of the long—term problems
endemic to the Maine pulp and paper industry in the state referred
to in the DSEIS. Yet, the Paper Commission makes no reference to
the Sears Island proposal as a critical factor in assisting pulp
and paper companies in the state. Although the targeted
beneficiaries of the port are largely the pulp and paper companies
in the service area, the commission concludes that the single
highest transportation priority tor Maine paper companies,
including paper companies in area claimed to‘ he served by Sears
Island, is rail infrastructure. Specifically, the Commission
reports:
while the industry is critically dependent on an
integrated transportation network to become and remain
competitive, treight rail is identified as the
transportation mode most critical to the industry and
most in need of improvement." (Emphasis added.)
This certainly is significant information that should appear
PAGE 27
_ 2-:
and be considered in the BIS. The DSEIS points to transportation
costs and the lack or a port as a major, if not the single most
significant factor, constraining economic development in the forest
products industry. Yet, the largest forest products companies are
on record as supporting not port development but rail development
as the transportation investment of greatest need.
H- . '
he most people are aware, traffic oncoastal route US l is
heaviest in-the summer months, from late Juno through Labor Day,
and then again during the tall. It. is unclear, therefore, why the
traffic study did not include counts in this high peak period.
This information should be obtained and included in the revised
BIS.
vz. rsflefl the Eeiroess ngthe EEBA Er==<=s55
The history of the management of this project leaves little
confidence in the ability of the agencies to conduct the NEDA and
404 process in a rorthright manner. In addition to the decision by
HDOT to litigate the need for an ‘E15: the finding by the courts
that the 198? PEIS was inadequate: the fill of 10 acres of wetlands
on the island without a permit; the private interagency process
which has left the public excluded from key elements of this
process tor the last three years; we now have new and very
troubling actions that continue to call into question the
objectivity of the permitting and lead agencies. -
1. BEE -— For the first time in our knowledge in the history
of HBPA in New England, lead agencies have charged the public the
significant fee of $40.00 for copies of the Draft BIS. - Even more
astounding, it appears that certain individuals and organizations
were provided with free copies, with or without requesting them,
and others were charged. '
In distributing the HIS, HDOT/FBI-TA reportedly used the state
library distribution system. This approach failed to respond to
particular areas of the state with a high degree of interest in the
project. This process required many people interested in reviewing
the SEI5 to drive 100 miles round trip to e county library. Rey
volumes of the BIS were missing from at least several of the
libraries. one week before the public hearing, three volumes of
the DSEIS were missing Irom the Roclcland library: the distribution
of eelgraes in Penobscot Bay: the final baseline report on marine
impacts: and the alternatives analysis. '
At the same time the public was being charged to obtain a copy
of the DSEI3, I100? and H-{WA apparently "used taxpayer dollars to
prepare and distribute a ‘biased, promotional video. If the video
cost $4000, -that is equal to 100 fires copies of BIS. The hubris
this demonstrates on the part of FHWA and HDOT is simply
--------------------
PAGE 28
astounding . I
2. 5£9.EJ-DH. —- We find objectionable the fact that HIJOT, FHWA
and the corps have held discussions tor 3 years now with other
federal agencies in private interagency meeting that have excluded
the public. Apparently, the most recent such meeting came two days
before the original September 29 public comment deadline. As the
HDOT/Finis exchange of memoranda on secondary impacts makes clear,
key decisions over the scope of this DBBIS have occurred in and as
a result of these meetings from which the public has been excluded-
3.'
Press accounts in the weer leading up to the public hearing‘.
contain information which, it true, impact if not undermine
assertions in the IJSEIS regarding the practicability of Hack Point
and call into question whether the project purpose as stated in the
DSEIS is still accurate and valid. __ I .
i A report that the moor is preparing additional
financial and economic reports central to key issues in
the DSBI5 -- but will not make the "new information
available until gigs); the close o£_the public comment
process. {fig ‘DOT Stalls on Market ‘Research tor Port _--
But It's Hush-Hush on the Detail", Corporate Challenge
News, august 1995.} "|IIe.regard this delay as undermining
the purpose and spirit of NEDA by avoiding public
scrutiny. _
i The day before the public hearing, the governor of
Maine and the president of the 'Bangor i Aroostook
Railroad held a press conference announcing that they
have found six times the amount or container cargo
forecast in the 315. The implications of this report for
the NEPA process and 404 -issues _ are enormous.
Transforming the port from one designed to encourage the
growth of Maine businesses through export of ‘Maine
products to one designed to be an outlet for container
shipping in the northeastern US and Canada is a change in
project purpose as set forth in the BIS. Before the
Corps and other agencies can take this report seriously,
it must go through public scrutiny as part of the NEPA
process. _ -
II! that 1'-‘$95?-'3» 3 l‘EP°7-'5 -T-Tl tnfl HQi has
p_ro'v_ided information not supplied by the BAR in its
public testimony. The news account indicates that "the
port faces huge obstacles in attracting the kind of
traffic" the railroad describes. -Among these obstacles
is the need for expensive gantry cranes that would "add
as much as a third-to the total cost of the port..-"
r
============================
Page 29
(fig; “Sears Island ‘gateway’ faces major obstacles,"
. Oetflber B, 1995 at 1-}
* Six days before the public hearing, Sprague Energy
announced that it intended to purchase 40 acres on Mack
Point and increase ex-port shipping capacity, including
breakbulk cargo intended tor a sears Island port. This
announcement quoted division nanager at Sprague as
stating that "anything that comes in bulk" is potential
cargo, citing "wood chips, oorn,_ clay and Purlite."
Again, this announcement raises various points central to
the issues in the DSEI5. For example, will the 20,000
tons of _hreak.huJJc cargo previously expected to be
transferred to s facility on Sears Island now remain at
Hack Point? If Hack Point will be expanded through
private investment to export a larger volume or cargo,
what are the implications for the_ assertions in the DSEI5
that Hack Point is not a practicable alternative to Sears
Island? How does this impact -a central rationale by the
I-moi‘ for public investment in a new port: the historic
lack of private investment in Waldo county to generate
employment. sprague has raised concerns about the
economics of project and has stated it would object to
the port on Sears Island if it competes with private
industry. Is it" state policy to invest public dollars
that would compete with private investment? (figs
Republican Journal, September 7, i995.)- I
It would violate NBPA it the agencies incorporated in-to their
review information which goes to central issues at the heart of the
REPA document but which have not heen included in the BIS. In
addition, press accounts suggest that many assertions in the DSEIS
may now be moot or undermined. In either case, the Corps and FHWA
as lead agency would need to issue a ' eupplental BIS to
investigate and present for public scrutiny any new information.
' its
gonolus ion I
Based on the information in the DSEIS, the corps cannot
lawfully issue a Section 404 permit flor any oi the 12 designs set
forth for Sears Island. Moreover, the lack. of an adequate
assessment of cumulative and secondary impacts in the source area
for the 55% of the cargo the port will export, the unequal
treatment of issues for their geographic impact and the oonclusory
and dismissive treatment of alternatives renders the Draft
inadequate under NEPA. Upgrading Hack Point remains the only
environmentally acceptable alternative.
We urge the corps to follow the only course available to it
and deny issuance of the Section 404 perm-it.
=======================
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In addition, the FHHA should supplement the DSEIS (1) in the
areas of secondary and cumulative impacts, alternatives assessment
and mitigation plans: (2) by including the HDOT marketing analysis
currently planned for poet-DSEIS release: and (3) by including
detailed information regarding plans by the Bangor Q Aroostook
Railroad and the MDOT to emphasize container shipments.
Thank you for your attention to these comments.
Blnc rely yours,
Daniel L. SOs
Senior Attorney
cc: Hon. William Cohen
Hon. Olympia Snowe
Hon. John Baldacsi
Hon. Angus King
Hon. Carol Brenner
John DeVillars
Andrew Rosenberg
William Haidermeyer
Ned Sullivan _
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