notes from draft draft seis

ISSUES FOR COMMENTS ON THE DRAFT SEIS FOR THE SEARS ISLAND PORT PROPOSAL.

SECTION 3.8 EXISTING CONDITIONS Marine Flora/Fauna

Section 3.8.4 Fisheries

* The SEIS characterizes a 1980 US Fish & Wildlife Service study, and an incomplete and vaguely presented NMFS fishery landings data "an updated summary of finfish diversity". There have been several important studies of finfish abundance and diversity in Penobscot Bay, including the vicinity of Sears Island, since then. The Maine DOT was made aware of these studies on several instances yet chose not to include them.. We believe that the failure to use this information is arbitrary and capricious.

* In 1983 The Maine Department of Marine Resources Laboratory in Boothbay Harbor published the results of finfish bycatch surveys carried out in the upper Penobscot Bay as part of a shrimp research project. State and federally managed species found in their juvenile form in the vicinity of Sears Island by this survey:

(OE = considered over exploited; FE = considered fully exploited) Atlantic cod(OE American pollock(FE) haddock (OE) white hake(FE) American dab)OE) whiting(FE) sand dab(OE) winter flounder(OE) gray sole(OE) wolf fish(OE)

In addition,juvenile halibut were found in the research trawl. Halibut populations are at such low levels in the Gulf of Maine that fishing for them is closed.

The above species face stiff fishery management restrictions due to low and declining populations. Because the Proposed Action could significantly and adversely impact recruitment of these species through larval and juvenile habitat destruction, loss of migratory pathways and loss of forage species, consultation with the New England Fishery Management Council and Atlantic States Marine Fishery Commission should take place to determine whether the Proposed Action could result in a need to amend Federal Fishery Management Plans as a result of declining recruitment of these species. The results of such consultations need to be included in the Final SEIS to give permitting agencies adequate information for an informed decision.

Other species found in the DMR study include important forage species such as tomcod, sea herring, alewife, smelt, shanny, silverside, red hake, rockling, three spine stickleback, sea raven, wrymouth, hookear sculpin, longhorn sculpin, shorthorn sculpin, eel pout, lumpfish, conger eel, butterfish, blueback herring, as well as squid, little skate, alligator fish, pipefish, and dogfish.

All of these species have an important role in the ecological community structure of Penobscot Bay. The impact of changes in this community structure stemming from the earlier and proposed actions need to explained in the FSEIS. 

Dept of Environmental Protection standards under the natural Resources Protection Act preclude actions that could unreasonably harm marine or estuarine fisheries. Under the Coastal Zone Management Act, state regulations that are stricter than federal regulations have pre-eminence over federal regulations.

Many of these species are facing stiff management restrictions due to low or declining populations. Because Scallops are also considered to be over exploited Status report winter flounder also check other fishes listed above) 1992 winter flounder over exploited C GOM continuing low level of landins and CPUE and trawl survey wintger flounder reduced substantially by recent exoploited recreational fishereis. Georges Bank no formal asessment comm and sxurvey record low and over exploited. In souther New EWngland overexploited. Contd comml and survey and increases in landing are Local fluctuations may be expected

National Marine Fishery Service's Technical Memorandum NMFS-F/NEC-101, 'Status of fishery resources off the Northeastern United States for 1993" describes Gulf of Maine winter flounder as a discrete genetic stock from those of Georges Bank and the midAtlantic areas. It also describes the Gulf of Maine stock as o * The SEIS unreasonably limits its fishery data to Waldo and Hancock County, despite the fact that most Penobscot Bay fishery landings take place in Knox County. The SEIS attempts to justify this by limiting its consideration of Secondary and Cumulative impacts to the Searsport/Stockton Springs area.

But given credible evidence that the waters in the Searsport/Stockton Springs area have historically and presently functioned as a spawning and nursery area for a variety of commercially managed fish and shellfish and their essential prey species that inhabit the greater Penobscot Bay, and that the Gulf of Maine's water circulation is structured such that Penobscot Bay's marine resource productivity affects productivity southward along the Maine coast, the SEIS is inadequate if it fails to consider the seconday and cumulative impacts of the Proposed Action on Knox County, greater Penobscot Bay and the coastal waters south of Penobscot Bay.

* The statement that the only available NMFS statistics for the area are a combination of landings from Waldo and Hancock County is not correct. Seperate NMFS statistics for Knox and Waldo County are available from NMFS office in Rockland. In addition, the landings data presented in the SEIS are incomplete, listing only 19 species. Commercial Landings data obtained from the NMFS Rockland Office lists 46 species landed in Hancock County.[[ENCLOSE LIST]] While some of these are purely pelagic and do not enter Penobscot Bay, they may be dependent on forage fishes produced in Penobscot Bay and transported by the Gulf of Maine's hydrology to offshore regions.

TABLE 3.8.1 is not sufficiently descriptive of fishery landings in Penobscot Bay that could reasonably be affected by the Proposed Action. There is no decription of data from Knox County landings, although almost all of Knox County is on Penobscot Bay. The landings data used by preparers of the SEIS encompasses landings from Union River Bay, Blue Hill Bay, Frenchman Bay and half of Gouldsboro Bay, as well as upper Penobscot Bay landings. 'arbitrary and capricious standards". A&C is a legal standard which is extremely difficult to prove in court. You have to show that the agency abused their discretion in preparing the EIS, which is the traditional standard for rulemaking. Seperate NMFS statistics for Knox and Waldo County landings are available. These data show that :

ISSUE Fish landings Table 3.81 limits fishery landings examined to Hancock and Waldo Counties.

A) There will be secondary and cumulative impacts to Knox and Lincoln County fisheries.

B) If all Hancock data is used, then the data encompasses fish landings from Union River Bay, Blue Hill Bay, Frenchman Bay, half of Gouldsboro Bay as well as those from offshore those bays.

Knox county on the other hand in almost entirely in Penobscot Bay. The draft SEIS thus gives a compeltely inadequate , incorrect impression of the Penobscot Bay fisheries that could reasonably be qffected by the port.

Section 3.8.4.6 paragraph 3 - NMFS says commercial havest in Waldo/Hancock = 47 to 53% of Pen Bay fisheries. This means that 49-53% of fish are landed in Knox County

**SEIS says that majority of fish landed are deepwater pelagic or demersal species not characteristic of shallow water habitats found along western shoreo fSears Island.

RESPONSE: Most of these species are commonly found intheir larval and/or juvenile phases in the shallow water habitats found offshore Sears Island.

SECTION 4.7 WATER RESOURCES PRIMARY IMPACTS Section 4.7.1 Earlier Action. Says that 1 to 3% of water in stockton Harbor is no longer exchanged over the former bar during 5 hours of each 12 hour tidal cycle.

QUESTION: How many cubic feet/gallons of water does that equal? Was it mostly surface water (impacts plankton movement) or deeper water (nutrient loss).

Section 4.7.1.2 SHIPPING OPERATIONS IMPACTS MDOT anticipates 8 ships berthing at terminal/month. QUESTION: What about increased oil shipping and support increase due to new offshore oil exploration/production.

QUESTION: What about stormwater runoff from terminal and induced industry? If it is a woodchip mill, leachate toxicity on benthic and plankton must be examined. 

DEFINITIONS There are several key NEPA definitions: Primary, Secondary, and Cumulative impacts.

PRIMARY IMPACTS. Those caused by the project itself. Direct effects include loss of marine habitats due to discharge of dredging or filling and is measured as the "footprint" of the dredge or fill activities.

SECONDARY IMPACTS The effects of additional development that can be attributable to the development of the cargo terminal, but is not an actual component of the proposed project. For example an industrial park on Sears Island or along the existing access road on Kidder Point would be secondary development.

CUMULATIVE IMPACTS include the incremental impact of the project when added to other past present and reasonably foreseeable future actions. Cumulative impacts include those impacts that result from development of the port such as an industrial park, and for reasonably foreseeable activities by others induced by the proposed project.

If an EIS does not full & accurately describe any of the above points, it can be challenged in court.

CLEAN WATER ACT (CWA) The CWA guidelines require the Corps to consider: (1) if feasible, less environmentally damaging alternatives are available; (2) if the proposed project could cause or contribute to significant negative impacts to wildlife or ecosystem integrity; (3) if the project would jeopardize endangered species or violate state water quality guidelines.

The EPA defines important fish spawning and nursery areas as "Special Aquatic Sites", defining them as: "geographic areas, large or small, possessing special ecological characteristics of productivity, habitat, wildlife protection or other important and easily disrupted ecological values. These areas are generally recognized as significantly influencing or positively contributing to the general overall environmental health of the entire ecosystem of a region." (40 CFR 230.3)

DECISIONS When an EIS is required, and prepared and alternatives are discussed in the particular document, it is not essential that the agency pick the right choice in picking out those alternatives. All that is required is that the agency make a 'good faith' objective evaluation of the alternatives. All that's required is that an agency make an informed decision (not an unwise decision).