SEARS ISLAND PORT PROPOSAL 1995

Federal comments on the fisheries Impacts of the proposed Sears Island port. (Intro: On December 13, 1995, the National Marine Fisheries Service wrote to the Army Corps of Engineers and Federal Highway Administration about the Supplemental Environmental Impact Statement (EIS) for the proposed Sears Island cargo port project. A "supplemental" EIS had to be written because the first one from Maine DOT was so poorly written they had to do it over.)

Part 1 (pages 1 - 5) Read Part 2 HERE

==========================================================

National Marine Fisheries Service (NMFS) comments on the Draft Supplemental Environmental Impact Statement for the proposed Sears Island cargo terminal project.

September 29, 1995

The National Marine Fisheries Service (NMFS) offers the following comments on the Draft Supplemental Environmental Impact Statement (DSEIS) for the proposed Sears Island cargo terminal project. NMFS is a cooperating agency for the DSEIS, and has worked with the Federal Highway Administration and the Corps of Engineers to attempt to develop a document that complies with both the National Environmental Policy Act (NEPA) and the Clean Water Act Section 404(b)(1) Guidelines.

Unfortunately, several fundamental issues remain unresolved, and the DSEIS does not adequately respond to our longstanding concerns about the environmental effects of the project.

Background
NMFS has been involved in the environmental review of various alternatives for port construction on Sears Island since 1981. We opposed issuance of a permit for the Sears Island project- in the 1980s because of the substantial impacts to marine habitat, including construction of a causeway to the island without a bridge or culverts, the loss of productive soft shell clam flats, the loss of valuable intertidal and subtidal fish habitat, and the lack of sufficient compensatory mitigation. The Corps of Engineers issued a permit for the project over our objections in 1984 and again in 1988, but acknowledged in the Record of Decision that the impacts to marine habitat would be "considerable." Both permits were later rescinded after successful legal challenges by the Sierra Club.

Scoping for the DSEIS began in 1991. After initial field work for the DSEIS, the applicant informed the Corps that substantial freshwater wetlands exist on the island which the Corps and the federal resource agencies had not considered during the previous permit decisions. Additional field work in 1992 revealed the presence of extensive eelgrass meadows in the project area, which is another resource that was not considered in the 1984 and 1988 permit decisions. Thus, we now know that the aquatic impacts of the project currently proposed by the applicant are much more serious than the impacts evaluated in the 1980s.

Environmental Impacts

In the 1980s an access road and causeway to the island were constructed, a portion of the dredging was completed, and a stone jetty was built pursuant to Corps of Engineers permits. This work included the loss of 4.1 acres of intertidal habitat, 0.3

----------------------

Page 2

acres of subtidal habitat, and 1.6 acres of freshwater wetlands, and the alteration of 29.0 acres of subtidal habitat from dredging.

Approximately 10 acres of freshwater wetlands were filled during this work without authorization from the Corps, and the applicant now seeks after-the-fact approval. Depending on the alternative selected, the proposed project would include filling an additional 11.9 to 12.1 acres of .intertidal habitat, 0.2 to 18.0 acres of subtidal habitat, and 5.5 to 16.8 acres of freshwater wetlands. Additional dredging would alter another 4. 1 to 16.8 acres of subtidal bottom.

Between 10.3 and 17.1 acres of benthic habitat would be permanently degraded due to hydrodynamic, water quality, shading, and vessel activity impacts. Direct and indirect loss of eelgrass habitat would total between 13.3 and 35.8 acres, and 80.0 to 250.0 additional acres .of eelgrass habitat could experience long term reduced productivity due to elevated turbidity. (All of the above figures derive from the applicant's analysis in the DSEIS.)

The proposed project site on Sears Island is comprised of diverse and highly productive marine habitats. The intertidal area is a mix of soft substrate, mussel beds, cobble, macroalgae, and tide pools. Surveys of the intertidal flats in the proposed project area have documented extremely high biological productivity, including soft shell clam densities far above commercially viable levels for harvesting. Although the standing stock was low during a survey in 1992, the condition of clam habitat in this area has not changed, which suggests that it would support a future recovery of clam stocks to the high densities documented in the FEIS. Rocky areas in the intertidal zone are vegetated with fucoid algae and support associated communities of invertebrates.

This area provides valuable refuge habitat for small forage fish, which can be readily observed in tide pools in the area that would be filled. The interspersion of these macroalgal communities with sandy mud flats and exposed rocky intertidal environments provides attractive foraging habitat for crustaceans and finfish at higher tidal stages. American lobster, hermit crabs, sand shrimp, jonah crabs, horseshoe crabs, pollack, Atlantic mackerel, menhaden, and winter flounder are representative species which are likely to use these habitats in the project area.

The shallow subtidal environment in and adjacent to the proposed project site is a soft silty-sand bottom dominated by beds of eelgrass with scattered rocks and boulders.

The eelgrass provides extremely valuable foraging, shelter, breeding and nursery habitat for a variety of fish and shellfish species. A 1992 survey documented very high levels of biological productivity in the subtidal portion of the project area, including both eelgrass beds and unvegetated inter-patch areas. A variety of microscopic organisms were attached to individual eelgrass plants, and the beds were inhabited by larger fauna such as crabs, lobsters, sea urchins, Atlantic silversides, and

=============================

Page 3

menhaden. Additional species which are likely to use the area include sea scallops, stickleback, tomcod, sand shrimp, seahorses, northern pipefish, winter flounder, windowpane flounder, Atlantic herring, rainbow smelt, alewife, American shad, and white hake.

The deeper subtidal portion of the proposed project area is a combined sand and mud bottom with small kelp beds, and is inhabited by scallops, crabs, and a variety of invertebrates. This region provides feeding habitat for harbor seals from Sears Island ledge to the south, which prey on migrating or foraging fishes in the area such as menhaden, American shad, Atlantic salmon, Atlantic cod, and pollock.

The marine impacts of the project are described in detail in a technical addendum to the DSEIS. In brief, construction and operation of the proposed project would destroy and degrade important intertidal and subtidal environments that provide productive nursery, foraging, and refuge habitat for a wide variety of marine organisms. Although we disagree with the way in which the DSEIS marine impacts report characterizes some of the project's impacts, the report provides valuable technical information and a thorough description of the types of environmental changes that would occur if the project were built.

Our specific comments on the report are contained in a separate enclosure to our comments on the DSEIS, which includes a table that summarizes the impacts of the twelve proposed design alternatives on marine resources, using acreage figures derived from the marine impacts report.

Major Unresolved Issues in the DSEIS

1. The range of alternatives carried forward for detailed analysis is too narrow, and a less damaging alternative exists at Mack Point. NMFS has repeatedly recommended that the DSEIS evaluate a reasonable range of alternatives for the proposed project, including the development of at least one alternative at Mack Point which presents no insurmountable operational or cargo compatibility problems. Our reason for pursuing a Mack Point alternative Łap*that such an option could dramatically reduce the adverse impacts of the project to living marine resources. We realize that this type of alternative may not be the applicant's preference.

We also realize that if the worst predictions of MDOT's consultants are true, such an alternative could require MDOT to modify certain aspects of their proposal to design a facility that could be accommodated at Mack Point. However, the report prepared by Kimball Chase Company for the Environmental Protection Agency suggests that a workable new port facility could be developed at Mack Point without substantial changes to MDOT's preferred port development plans. These conclusions were

==========================================

Page 4

recently supported by discussions between EPA and existing Mack Point landowners. In short, it still appears that port development at Mack Point is a reasonable alternative for the proposed project.

Unfortunately, the DSEIS alternatives analysis appears to have focused on developing rationales for why a Mack Point alternative might not be feasible, rather than presenting evidence that MDOT has worked with the Mack Point owners and operators to attempt to design a workable project at that site. This analysis in the DSEIS has not demonstrated that a Mack Point project would not be "reasonable" under the National Environmental Policy Act (NEPA). The exclusion of Mack Point alternatives unnecessarily constrains the alternatives analysis to a single site on Sears Island that supports extremely valuable marine habitats.

We acknowledge that the Federal Highway Administration has expressed doubts about the practicability of a Mack Point alternative based on previous review of this site.

However, we urge FHWA to revisit this issue since a Mack Point design appears to be the only permittable alternative for this project. Although port development at Mack Point would entail some degree of impacts to marine habitat, NMFS is willing to work with FHWA, the Corps of Engineers, and the state to develop a permittable Mack Point project.

NMFS is concerned that the Final SEIS will be deficient for NEPA purposes if it does not include a broader array of reasonable alternatives for the project, including alternatives on both Sears Island and Mack Point that minimize environmental impacts.

2. The proposed alternatives would result in unacceptably adverse effects on living marine resources.

Regardless of which of the twelve proposed alternatives is selected, the impacts of the project would be extraordinarily severe in terms of both the area and quality of aquatic habitat affected. NMFS, the Environmental Protection Agency, and the U.S. Fish and-wildlife Service have prepared a report entitled "Evaluation of the Significance of Impacts - Sears Island Cargo Terminal" (enclosed with our comments on the DSEIS) to assist the Corps of Engineers in assessing the significance of the proposed impacts.

The report describes the impacts of the project in the context of Section 230.10 (c) of the 404(b)(1) Guidelines, but it also illustrates why NMFS believes the impacts of the proposed. project are unacceptable under NEPA.

3. The proposed mitigation would not offset the significant environmental impacts of the project.

===============================

Page 5

To offset the significant impacts of the project, the applicant would need to develop an extremely comprehensive mitigation plan that compensates for adverse effects to aquatic species and habitats. However, the mitigation proposed by the applicant would not offset the environmental impacts of the project, nor would it reduce the impacts of the project below the "significant degradation" threshold under the 404(b)(1) Guidelines.

In 1989 the applicant constructed 3.5 acres of clam flats by placing upland sand from a gravel pit in existing intertidal and/or subtidal habitat adjacent to the Sears Island causeway to offset the impacts of causeway construction. The created clam flats have not been successful, and have experienced a steady decline in resident clam populations every year since 1990. The reason for the failure of this mitigation project is unknown, but potential explanations include inappropriate substrate, improper elevations, localized sediment movement that prevents successful spat settlement, desiccation of spat due to the coarse nature of the substrate, disease, and/or predation.

The applicant proposes to use the existing clam flat mitigation project to compensate for intertidal habitat loss due to causeway construction and due to the proposed port development. In other words, the applicant proposes to use 3.5 acres of ineffective compensation to offset the impacts of between 16.0 and 16.2 acres of intertidal habitat loss. This mitigation proposal would be inappropriate even if the clam flats had been successful, but given the status of the clam flat mitigation, this proposal is entirely unacceptable.

The second part of the proposed mitigation involves the restoration or creation of eelgrass habitat. The applicant proposes to compensate only for the impacts of the project within the footprint of dredging and filling. Thus, for pile-supported designs, the applicant suggests compensating only for eelgrass lost within the diameter of each individual pile. However, the indirect impacts of the project from scour, vessel activity, and turbidity may be far more severe than the direct impacts, and would include substantial eelgrass loss and degradation in the area surrounding the port. Since there is a very high likelihood that these indirect impacts would occur if the project is built, it is inappropriate not to provide sufficient mitigation to compensate for both the direct and indirect impacts of'the project. The development of a monitoring plan to assess potential secondary impacts is not adequate mitigation.

4. Adequate mitigation to replace lost aquatic functions and values may not be practicable.

The NEPA regulations at 40 CFR Part 1503.3(d) require a cooperating agency that objects to the.environmental impacts of a

====================================