Conservation Law Foundation
Lt. Col. J. Michael Bradbury, District Engineer
U.S. Army Corps of Engineers
424 Trapelo Road - Waltham, MA
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.
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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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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. T
hese 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 FHWA 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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transportation savings,& 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 Section 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. Damaqe 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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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..."
(continued page 6)
Footnote 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 from this blight has been slow"
End footnote 1
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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 -
The impacts to eelgrass from constructing and operating a port on Sears Island are significant. The proposed cargo terminal is forecasted to destroy from 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 significant 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 Eelgrass in Penobscot Bay, Maine."
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at Table 4-8-2;; testimony of NMFS; EPA/NMFS/US FWS assessments.)
(4) The size of these impacts are unprecedented on the coast of New England since the enactment of the Clean Water Act. Yet, the DSEIS fails to provide anything other than a generalized and inadequate description of mitigation and fails to quantify the cost of mitigating the eelgrass impacts of this project.
In the face of incomplete or missing information in the EIS. 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, NH permit condition, EPA policy and the statements of nationally recognized eelgrass experts; and a. 1:1 ratio for acres suffering from reduced productivity. The acreage needed to he recreated is then 13.3 - 35.8 [x3] plus 30% (80) to 85% (250 acres)
The total range is from a low of 63.9 acres to a high of 319.5 acres using the above 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 for adequate light penetration, the additional construction costs could rise above $150,000_/acre.
Utilizing a low average cost per acre of $100,000, replacement of eelgrass 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 be successfully recreated. The only existing effort in New England to replace of eelgrass due to permanent loss is in Portsmouth, NH where six acres of recreated eelgrass were required to compensate for two acres of lost habitat.
After 2 years, half of the 6 acres acreage planted failed. Two of the three acres have been replanted. at extra cost with indeterminate results. Half of the planted area
[CONT”D Page 8
Note 4 “ These impacts from dredging are poorly explained in the DSEIS . Table 4-8-2 should be redone using categories applicable to NEPA standards: direct, secondary and cumulative impacts from dredging, inter- and sub-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 cumulative impacts through port operations: these may not be temporary and the Chart is misleading.
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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 be required at Sears Island is a multiple of any previously attempted effort.
In essence, it_is impossible to state now that the requisite mitigation will ever be feasible to compensate for the impacts of the Proposed Action. The extent of eelgrass in Penobscot Bay has already been significantly reduced by human activities and there is little saltmarsh in the Bay to provide similar functions.
Eelgrass is a type of habitat of great importance to many of Maine's most valuable fisheries. Impacts of 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 upgradinq Mack Point.
B. The Impact to Terrestrial Resources is significant The Proposed Action would destroy from 17.1 to 28.4 acres of freshwater wetlands. This is a significant amount of habitat which possesses a wide array of important functions 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 DSEIS that MDOT was unable to locate such sites.
For forested wetlands, restoration of onsite damaged or destroyed wetlands, or recreation costs: approximately $100,000 per acre, or $1.7 to $2.8 million.
II. the Proposed Action Fails‘ to Provide Adequate Mitigation_
All of the design scenarios set forth in the EIS for Sears Island have significant and unacceptable environmental impacts.
Clean Water Act guidelines prevent issuance of a permit where
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the impacts of a project would result in signiticant degradation of waters of the United States.
Preservation or out of kind mitigation, of 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 permissibility of a build option which contemplates such massive envirmental impacts without an adequate mitigation plan. The plans and approaches presented are inadequate for all impact areas.
In particular, the mitigation plans for 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 fact, any of the preferred alternatives would have massive direct and indirect impacts.
For those impacts, which range from 13.3 to 35.3 acres of 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 of 13 - 35 acres or eelgrass habitat will be compensated, including the costs of such mitigation. Moreover, such plans must provide information on mitigation for the 80-250 acres of eelgrass hahitat that will likely suffer reduced productivity from port operations.
Surely, having engaged consultants to speculate on virtually every possible aspect of the project, including such vague predictions as induced and indirect employment creation, and having already assessed the probability of damage to 80 - 250 acres of eelgrass habitat, the DSEIS can provide MDOT's mitigation proposals for these impacts. Such proposals could take the form of estimated ranges following Table 4.8-2 but must include costs, sites and likelihood of success if the mitigation proposed is restoration or creation.
Without such mitigation proposals, the only conclusion that permitting agencies can reach is that the 404 Guidelines preclude issuance or a permit.
III. INADEQUACIES OF THE DSEIS
A. THE SECONDARY AND CUMULATIVE IMPACT ASSESSMENT IS INADEQUATE.
CLF has reviewed the memorandum prepared by Maine DOT concerning whether the SEIS 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 MDOT and FHWA are wrong and subject to yet another reversal in the courts if they adhere to their interpretation of NEPA requirements on this point.
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1 The DSEIS Fails to Examine the Secondary and Cumulative Impacts to the Health of the Forest from 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 85% by volume of the total amount of cargo forecasted for export, making this commodity the single most significant cargo that the port is designed to accommodate. The DSEIS agrees that wood chips would be a "major forecasted "cargo." [2- 32.]
The 1995 DSEIS predicts wood. chip exports that are from 2.5 to 6 times as large as forecasts made in 1986 and 1987 Booz Allen studies. Despite the key role that building the port will have on creating a market for wood chip export, the DSEIS utterly fails to examine the environmental impacts from creating a wood chip market. Nor does the DSEIS examine the potential detrimental economic 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 of the Draft, that no market would exist for wood chip export absent construction of the port:
In the case of woodchips, there is little or no export activity, despite the market potential, because cost-effective transportation is not available.
(S-1-2.) In other words, but for the construction of the port, there is no prospect for the export of wood chips because a cost effective transportation facility does not exist. So central is wood chip handling and export capability to the Proposed Action that the MDOT refused to examine alternative sites and port designs that did not incorporate the capability to export wood chips:
"MDOT found the idea of eliminating a major forecasted cargo unacceptable. . .MDOT concluded that the no-woodchip alternative is technically and economically unsuited to the project's core goals. [2-32.]
Yet, even though MDOT clearly establishes the causative relationship between wood chip export and the Proposed Action -- that wood chips can only be exported it the port is built (and would not be exported if the port is not built) -- the DSEIS fails to examine the secondary and cumulative impacts from 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
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project manager Brian Nutter of the MDOT at a comunity forum held earlier this year:
The 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 Service. However, we do recognize that there are a lot of concerns about wood chips. Wood chips were identified by our consultants as a potential 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 forum for doing that is not a transportation project. though. The forum for doing is with the Department of Conservation. - "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 DSEIS confuse the purpose of the NEPA process and the EIS with the question, irrelevant to NEPA's impact assessment requirements, of_which state agency has jurisdiction over forest practice regulation. The purpose of an EIS 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 MDOT 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 the Source 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
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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 Lemin concluded that demand for "Tolerant Hardwoods" in Maine would fall short or supply in the year 2000 by "599,000 cords, or roughly 1.2 million tons." (See Seymour and Lemin, "Timber Supply Projections for Maine, 1980- 2080" (CFRU Research Bulletin 7, 1989) .
* 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 2-4% 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, Maine chips do not appear to be competitive. As the world markets improve, Maine's emergence as a high-cost supplier seems possible. Shipments in the range of 200-300,000 tons per year could he feasible. This design should pose no serious _resource supply issues... Achieving shipments of 600,000 tons at the end of 10 years seems optimistic hut cannot be excluded from possibility. Supplying such a level of exports would push the limits of supply unless it becomes possible to reach well into Aroostook County.
We cannot he_confident that Aroostook sources would be feasible, however.
And Irland asserts that:
[i]ncrease of 600,000 tons...would be almost 5 times as large as the estimated surplus of growth over cut. Reaching 600,000 tons would depend on tapping surplus low-grade growing stock, and bidding wood away from other users. To rely solely on unneeded growing_stock would require a level of quality forest management that consultants do not believe exists in the area. (The Irland Group. Technical Memorandum in Support of Secondary Analysis for Development of Sears Island Marine Dry Cargo Terminal, Assessment of Forest Resource Impacts of Hardwood Chip
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Exports From Searsport, Maine," (December 12, 1994). )
Moreover, the Irland Group report concludes that shipment of 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 forest in this sub-region could be intensive.
In other cases, lead agencies responsible for preparing environmental impact statements under NEPA have been responsive to public concern over the need to examine forest impacts from chipping operations and export. In February 1993, 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." FEIS Chipmill Terminals on the Tennessee River,TVA / RG/EOS-93-2 (Feb 1993)
As the FEIS abstract summarises:
The impact analysis includes both 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. Procurement area impacts are associated with timber harvest.
After weighing the potential impacts of the pending requests with the likelihood of substantial, cumulative localized impacts and the risk of significant harvesting-related impacts, TVA's preferred alternative is denial of 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. TVA 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. (Id. at l8.)
The source area assessed in the Tennessee-Chip Hills EIS was determined to be a general area within a 75 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. [Id. at 28-29].
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28-29.] The dominant harvest methods were determined to he clear-cutting and highgrading -— similar to the Irland Groups’ assessment that highgrading would be a foreseeable form of harvesting in the Sears Island hinterland area, a form of harvesting that Irland suggested could exacerbate already poor forest practices. (Id. at 29, 56.] And while the sole 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 of 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 85% shipment of wood chips.
(c) The DSEIS 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.
The DSEIS devotes extensive discussion to the purported socioeconomic benefits the Proposed Action would have in the multicounty "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 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 Far East.
The following is a glimpse at some of the studies prepared for MDOT which include information which confirms that the impacts are neither speculative nor indefinite, and require analysis in the SEIS:
In "Review of 1987 Study of Market Demand . . ." Booz Allen Study, 1992. (MDOT commissioned study estimates a first year base line of 600,000 tons of woodchips to be 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 multipurpose cargo port.)
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* "Reiteration of Booz-Allen's Position on the Viability of projected Woodchip Export Levels - revised" December 14, 1994, at Page 1- (MDOT commissioned study estimating that‘ "600.000 tons of woodchips could be moved out of the State or Maine . . .")
* "Opportunities for Exporting Hardwood Pulpwood Chips from Maine to the Far East" D.B. Field and R.B. 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 . . ."
(3) "Technical Memorandum in Support of Secondary Impacts Analysis for Development of Sears Island Marine Dry cargo Terminal, Assessment of Forest Resource Impacts of Hardwood Chip Exports From Searsport, Maine." The Irland Group, October 12, 1994. It is not explained in the DSEIS why the Irland Group memo on secondary impacts was not included in the 16 volume DSEIS."
Recommendations As an MDOT 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.“ Normandeau Associates, "Marine Resource Impact Assessment and Mitigation" (April 1995) at 259.
Legally and factually, the agencies charged with preparing and evaluating the DSEIS 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 failure 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 Draft deficient by violating in an arbitrary and unsubstantiated manner the requirement under applicable NEPA regulations to examine the clearly foreseeable secondary and cumulative impacts of the proposed action on the
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environment - and leaves the public 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 cumulative impacts on forest practices and the health of the forest in the source area for the proposed action.
2. The DSEIS Fails to Examine the Detrimental Secondary and Cumulative Impacts on Current Employment from the Export of Forecasted Vo1ume of Wood Chips
Similar to its failure to discuss secondary and cumulative impacts to the forest 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 [be] diverted from current" users." [Irland Group at 20-29.] at 300,000 tons per year, 50,000 tons would diverted from current sources. Irland identifies current uses as "pulpwood, firewood, 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 forum in May 1995. Irland stated that major pulp mills in Maine 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: 100% of Maine's biomass consumption; and over 40% of Maine's firewood consumption. (see 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 forest resources unless the woodchip supply was obtained from throughout the cost-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 confirned this conclusion. (Id.) In response, RKG generically and
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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.
Recommendation A supplemented EIS 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.
B. The DSEIS Alternatives Analysis is Flawed
1. No Action Alternative
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 DSEIS emphasizes that a "no-action" alternative would be 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, of such units is not likely to be economically prudent for many 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 Scope of Alternatives Assessed
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
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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 be economically feasible and is speculative. The public outcry over subsidizing wood chip export also indicates that a port which focusses on wood chip handling is unlikely to garner public support for investment; and therefore public funding for a port that is designed to accommodates 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 export capability would still remain consistent with the project goals.
The alternatives assessment should also fairly examine the possibility of siting the port on Mack Point.
3. Modernizing Mack Point Is a Less Damaging and Practicable alternative that would fulfill all major Project Purposes
3A The Rejection of Mack Point as a Viable Alternative is Conclusory and Flawed. The DSEIS rejects modernization of the existing port at Mack Point, Searsport as a feasible alternative to constructing a new berth on Sears Island. The DSEIS discussion is replete with conclusions in search of fact and conflict with information relevant to the issue that is not mentioned or discussed in the DSEIS.
(i.) The Prior Court Decision .
We understand that FHWA and the Corps may believe that a prior court decision provides support for excluding Mack Point as a practicable alternative to Sears Island. Without setting forth our own legal interpretation o£ that decision, we urge FHWA 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 1987 FEIS in terms of the scale, size, environmental impacts, costs and economic claims. In many respects, the concept of building a major new major [sic] 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
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interconnected with an industrial park. A few of the key changes in the project are important to consider as the federal agencies continue their review of this proposal:
* Employment generation -- The 1987 FEIS suggested that up to 2,750 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 1987 FEIS. Unlike then, now we know that the 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 Mack Point.
*Scope of the Project -- The 1987 FEIS discussed a project that would commence with 3 berths, be expandable to 6 berths and incorporate a 150 acre industrial park. Now, the project consists of 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.
* Costs --- The 1987 FEIS discussed a project that would cost around $20 million; the 1995 DSEIS discusses a project that would cost at least $50 million above the $17.5 million already spent. This figure is for construction only; it does not take into account costs associated with the Earlier Action nor mitigation costs.
* Transportation cost savings — The 1987 FEIS estimated some $2.7 million per year in reduced transportation costs. The 1995 DSEIS estimates that only $700,000 /year 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 be 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 FEIS. Wood chips have become the predominant cargo. This affects issues of acreage and impacts.
*Dredge -- The 1987 FEIS predicted that 3.1 million cubic yards of dredge would be required tor Alternative A (Mack Point) and 2.1 million cubic yards at Sears Island. The 1995 DSEIS predicts 1.7 million cubic yards at Mack Point and 459,000 cubic yards for Sears Island design D-l, 90,000 for other alternatives.
At the time dredging was suspended in June 1985, 303,000 cy had been removed. [1987 FEIS at iv.) These discrepancies are large and
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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.
Space Availability, Business Disruption and 404 Guidelines
The real issue regarding space at Mack Point is whether currently vacant space and under- or poorly utilized- space can be reconfigured to support project purposes.
There is no evidence in the DSEIS 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 Point in a more 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 of space availability. The DOD is apparently downsizing the Federal Fuels Facility from 9 tanks to 4 tanks, raising questions regarding space availability.
(There 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 Maine DOT‘ 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 be implemented. If the DOD were to leave Mack Point, even in 10 or 15 years, there would be more than adequate space for the expanded opporturnity at Mack Point. The DSEIS 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 Project Purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could easily be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity, may be considered 40 CFR 230.10 (a) (2).
- These regulations impose an obligation on MDOT, FHWA and the
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Corps to obtain hard evidence regarding the logistics or layout and configuration options on Mack 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 term 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 disruption. The report 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 forth in the Kimball-Chase report contains a configuration approach unlike those reviewed by MDOT. For example, the new berths are located adjacent to the dredge channel, calling into question whether MDOT has ever taken a hard look at Mack Point with a view of attempting to make Mack Point work.
In fact, the approach taken by Kimball Chase appears to be to try and find a way to make Mack Point work to fulfill the goals of the Proposed Action. The approach in the DSEIS, by contrast, appears to be to provide a narrative discussion to support a predetermined conclusion that Mack 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 Mack Point then is the only viable option for a mid--coast port improvement. We urge FHWA, MDOT and the Corps to reconsider Mack Point in this light.
(iii) NAVIGABILITY
The DSEIS acknowledges that with modification of the federally maintained dredge channel, navigational approaches to Mack Point would be "acceptable" but asserts that dredge costs would be excessive and wave and wind action would make Mack Point less optimal than a berth on Sears Island.
The discussion in the Draft raises more questions than it answers. MDOT is concerned with wave and wind action affecting ships turning at Mack Point with broadside impacts. Normandeau Associates notes that "winds from the south and southwest reach the upper bay unbuffeted. 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 248.) 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 Island any less than at Mack Point.
There is no information in the DSEIS supporting a
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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.
Available 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 ft 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 Mack Point and Sears Island.
The statement that Mack Point is less optimal for navigability requires factual justification:
+ How often would wind and wave action occur that would pose navigational problems to shipping?
+ How many ships would be detrimentally affected annually? How would oil tankers coming into Mack Point be affeected 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. US EPA Letter to Lt. Col Bradbury, Sept. 29, 1995.
(iv) Woodchips and Coal Contamination. We find persuasive the evidence set forth in the Kimball Chase report, regarding the claim that Mack Point is not viable in part because of the potential perception among potential buyers that woodchips stored on Mack 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 export of large quantities of woodchips, and imposing as a centerpiece of the alternatives assessment siting and designing a port around woodchip export capability,
(v) Fill, Dredge and Environmental Impacts
MDOT claims that much more extensive dredging would be required by upgrading Mack 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 MDOT that 1.7 million cubic yards of dredge would be required at Mack Point. By contrast, Kimball Chase has investigated the issue of dredge amounts and concludes that the amounts would be similar at Mack Point and Sears Island. We see no reasons to doubt Kimball Chase's conclusions. ...
' In section 1.3 and in Section 7, the DSEIS discusses laws and policy statements including , the Maine Sensible Transportation Policy ct and DOT 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 will encourage 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. Irland 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. value terrestrial and marine "ecosystems, the proposal is inconsistent with central 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 DSEIS 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 Maine 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 DSEIS should make clear that many believe that an improved port at Mack 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
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... and be considered in the EIA
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
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2. Scoping -- We find objectionable the fact that MDOT, 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 MDOT/FHWA exchange of memoranda on secondary impacts makes clear, key decisions over the scope of this DSEIS have occurred in and as a result of these meetings from which the public has been excluded.
3. New Information and Failure to Incorporate Ongoing Studies
Press accounts in the week leading up to the public hearing‘. contain information which, it true, impact if not undermine assertions in the DSEIS regarding the practicability of Mack 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
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Page 29 (fig; “Sears Island ‘gateway’ faces major obstacles," . October 8, 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 for 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, corn,_ clay and Purlite." Again, this announcement raises various points central to the issues in the DSEIS.
For example, will the 20,000 tons of b breakbulk cargo previously expected to be transferred to s facility on Sears Island now remain at Mack Point? If Mack Point will be expanded through private investment to export a larger volume or cargo, what are the implications for the_ assertions in the DSEIS that Mack 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 Mack 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 permiit.
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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.
Sincerely yours, Daniel L. Sosland 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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