Advocates working to protect Sears Island received a welcome boost yesterday when the Environmental Protection Agency (EPA) as reported by PEER (Public Employees for Environmental Protection) strongly recommended against approval of the Umbrella Wetlands Mitigation Scheme as requested by the Maine DOT to the Army Corp of Engineers.
The state of Maine announced last week that it has $100K to hire a consultant to market the island (ostensibly for a Cargo Port).
See the following story links:
http://waldo.villagesoup.com/Government/story.cfm?storyID=151860
http://www.peer.org/news/news_id.php?row_id=1175
We posted a clip from the Army Corp meeting last week - see on Utube:
http://www.youtube.com/watch?v=P4OYLonk8bo
And finally check out this lovely post by Doug Watts:
http://tispaquin.blogspot.com/2009/04/epa-kicks-maine-dot-in-nads-over-sears.html
Thursday, April 2, 2009
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Comments on Maine Department of Transportation Umbrella Wetland Mitigation Bank Prospectus
ReplyDeleteIntroduction
The Clean Water Act was ratified to "restore and maintain the chemical, physical and biological integrity of the nation's waters." For reasons outlined below, we submit that the Maine Department of Transportation (MDOT) Umbrella Wetland Mitigation Bank Prospectus (the Prospectus) fails to meet Clean Water Act goals and standards because it disproportionately relies on preservation as a mitigation tool and has other inherent flaws. Therefore, the proposal should be denied or fundamentally changed.
In the Prospectus, MDOT proposes that 601 acres of Sears Island "become the foundation for a Federal Umbrella Wetland Mitigation Bank for Transportation. via execution of a conservation easement." The conservation easement, signed on January 22, 2009 and recorded in the Waldo County Registry of Deeds at Book 3289, Page 300, identifies Maine Coast Heritage Trust as the Holder. The purpose of the conservation easement, noted on page 4, is "to provide a significant public benefit by protecting and preserving in perpetuity the natural and undeveloped character of the Protected Property..."
The proposed wetland mitigation bank would prevent very little loss of aquatic resources and, in fact, undermines the Clean Water Act and 404 Guidelines.
Role of Preservation Credit
The State of Maine owns Sears Island. Acting by and through its Department of Transportation, the State of Maine began acquisition of Sears Island in 1985 and completed acquisition in 1997. A small portion of Sears Island currently used to locate a cell tower is subject to an easement, held by the Maine Department of Transportation (MDOT), which restricts that parcel to either its current use or conservation.
Avoidance
Department of Defense 33 CFR Guidelines at Section 332.1(c) Sequencing require applicants for mitigation to first avoid adverse impacts to wetlands. In a May 31, 2007 statement on mitigation guidance, Christine Godfrey, Chief of the Army Corps of Engineers (ACE) District Regulatory Division, reiterates the "national goal of no overall net loss of wetland functions." In the same statement, Godfrey says that preservation alone may only be considered for compensatory mitigation in exceptional circumstances because "it results in neither a gain in wetland acreage, nor a gain in wetland functions."
In the May 2007 statement, the ACE regulatory Chief importantly notes that "on-site preservation will be considered under the avoidance part of mitigation, rather than as compensatory mitigation."
Because the State of Maine owns Sears Island in its entirety, any future uses of Sears Island should be expected to avoid adverse wetland impacts, as required by law. Therefore, avoiding adverse wetland impacts on the 598.8 acre area of Sears Island as proposed in the MDOT Umbrella Wetland Mitigation Bank Prospectus dated January 9, 2009 can not result in preservation mitigation credits for impacts to other Sears Island wetlands.
Demonstrable Threat
The 33 CFR Guidelines at Section 332.3 (h) (iv) are clear that preservation may only be used for mitigation when several criteria are met, including, "The resources are under threat of destruction or adverse modifications."
The 126 acre wetland portion of the 598.8 acre Sears Island area proposed for mitigation credit is under no threat of destruction or adverse modification. The entire area has been owned by the State of Maine since 1997. Both state and federal laws protect such wetlands; for the State of Maine to destroy or modify wetlands on Sears Island again is highly unlikely.
The State of Maine, in planning for a cargo port on Sears Island in the 1990's, intended to set aside for conservation the area currently proposed for mitigation credits (see Appendix A, Sears Island Preservation/Conservation Plan, May 1995). In that report, MDOT indicates that "approximately 700 acres of Sears Island... may be preserved if a cargo terminal is permitted." Although the cargo port was never permitted, in 1997 MDOT used these same recommendations as the basis for a Federal Highway Enhancement grant (see Appendix B, Federal Highway Administration Correspondence, 1997).
In 1996, when the State of Maine was struggling to find financing for the purchase of Sears Island, residents of Searsport met with representatives of several environmental organizations and began developing plans to purchase Sears Island if the State efforts were not successful. These groups and private citizens planned to preserve the entire island, thus preventing any threat to wetlands. (See Appendix C, Federal protection of Sears Island will be costly, Republican Journal, November 28, 1996.)
All of this prior planning indicates that the area proposed for preservation mitigation credits has not been under threat of destruction or adverse modification since at least 1985 when the State of Maine secured its first Sears Island property ownership interest.
Preservation as a mitigation tool always results in a net loss of wetland acreage and functions. By itself, it is wholly unacceptable as compensatory wetland mitigation. Preservation credit in the Bank should only be allowed in conjunction with and to further protect restoration, enhancement or creation sites, if at all.
Public Land Limitation
The federal rules adopted in April 2008 (33 CFR Guidelines Section 332.2 Definitions) state unequivocally, "Preservation does not result in a gain of aquatic resource area or function." The Guidelines, too, reserve the issuance of preservation mitigation credit to a highly circumscribed, limited number of situations, not all of which apply to the 598.8 Sears Island acres [332.3 (h) (iv)]. In addition, the 33 CFR Guidelines at Section 332.3 (a) (3) further limit mitigation credits when sought on public land, allowing credit only when aquatic mitigation functions are "over and above those provided by public programs already planned or in place." Because the State of Maine, acting by and through MDOT, has long planned for low impact recreation and preservation uses of the acreage in question (Appendix A, Sears Island Preservation / Conservation Plan, May 1995) and because the existing conservation easement memorializes such public use, this portion of Sears is not eligible for wetland mitigation preservation credit.
The 33 CFR Guidelines at Section 332.2 define Preservation as "the removal of a threat to, or preventing the decline of aquatic resources by an action in or near those aquatic resources." The Prospectus acknowledges that there are 126 acres of wetlands within the 601 acre Protected Property. Clearly much of the 601 acres (approximately 475 acres) is upland area posing no threat to the wetlands because at least some of the upland area is not "near those aquatic resources." Issuing blanket preservation credits for vaguely defined wetland and upland acreage without a careful description of the relationship of one to the other fails to meet the 33 CFR Guidelines requirement of "quantitative assessment" [see 33 CFR Guidelines Section 332.3 (h) (ii)].
Summary of Role of Preservation Credit
In summary, the Prospectus does not acknowledge that MDOT can readily avoid impacts to wetlands within the 598.8 acre area for which preservation credit is sought, fails to demonstrate that the 598.8 acres are under any kind of threat, improperly calculates the area that can even be considered for preservation credit, and omits the required delineation and description of the relationship between the 126 wetland acres and the 472.8 upland acres within the 598.8 total area under consideration. We urge ACE to reject the Prospectus request for preservation credits.
Watershed Approach
The MDOT Prospectus proposes to use Bailey's Ecoregions of Maine as the basis for decisions about wetland needs, functions and services. The Prospectus does not use a watershed approach as recommended by the Corps 33 CFR Guidelines.
The Corps Guidelines speak directly to scale, indicating that, "The size of watershed addressed using a watershed approach should not be larger than is appropriate to ensure that the aquatic resources provided through compensation activities will effectively compensate for adverse environmental impacts resulting from activities authorized by DA permits." The Guidelines define a watershed as "a land area that drains to a common waterway, such as a stream, lake, estuary, wetland, or ultimately the ocean." The suggestion and definition lead to the conclusion that an appropriately scaled watershed unit might be a stream or wetland that is hydraulically connected to a cove or inlet, not the very large ecoregions as proposed.
Also, the watershed approach, according to the Guidelines, "involves consideration of watershed needs, and how locations and types of compensatory mitigation projects address those needs." The MDOT Prospectus is silent as to reasons for its large service area preference and is equally silent as to wetland needs, functions and services in the watershed or watersheds proposed to be served by the bank. Not only is there no evidence of need, there is no indication as to how wetland needs in the service area will be determined. How will a functional assessment of each proposed site be built into the management and operation of the bank?
The Prospectus requests that the Bank's service area include the "Penobscot Bay Coast Subsection, the Casco Bay Coast Subsection and the Maine Eastern Coastal Subsection." Cumulatively, these bioregions encompass far too large an area. In addition, there has been no watershed plan completed, a necessary precursor to mitigation planning. This reverses the proper sequence (planning first, mitigation credit second) and overemphasizes mitigation and permit issuance, guaranteeing a piecemeal approach to mitigation. If a watershed plan is done first, then any proposed bank can be based on the findings of the watershed plan. Aquatic needs must be addressed before the bank is considered and this requires research and analysis absent from the Prospectus.
MDOT expects to provide bank benefits "based on state-wide priorities" but fails to explain what the priorities are, when the public and IRT might be able to review them, and how they were or will be established.
The extremely large service area proposed would encourage off-site mitigation. The Bank should instead discuss the importance of and preference for adjacent or contiguous (on-site) mitigation. Off-site mitigation is less valuable than on-site mitigation and the Prospectus should make note of this point. In-kind and on-site mitigation should be emphasized in the Prospectus.
In comments on an earlier iteration of the Prospectus, National Marine Fisheries' Louis A. Chiarella expressed concern about the large service area, wondering "how these regions satisfy the watershed approach to compensatory mitigation as prescribed by the Mitigation Rule."
Public Hearings
The public meeting on this matter demonstrated public interest in this proposal. If ACE does not outright deny the Bank proposal, then full and open Public Hearings at all key decision making points must be conducted, including hearings regarding the Prospectus, Draft Instrument, Final Instrument and Site Development Plans. This will provide a needed opportunity to provide testimony for the public record that otherwise has not been possible.
Additional Concerns
Table 2 on Page 7 of the Prospectus lists several past, current and proposed MDOT projects for which mitigation credit from the bank apparently may be used. We are concerned that enhancement or expansion of Mack Point is not listed but "Sears Island port development" is identified as a proposed project. The Sears Island Planning Initiative Consensus Agreement, approved by the Maine Transportation Committee and attached to and made part of the Prospectus says, in Section 2, Page 22, "Mack Point shall be given preference as an alternative to port development on Sears Island." Mack Point is an operational port and the State of Maine owns considerable acreage adjacent to the recently improved facilities, making expansion readily feasible. Identifying Sears Island for port development is therefore inconsistent with the Agreement and State policy as adopted by the Transportation Committee.
In fact, there is no "proposed" Sears Island port. There is only a marketing strategy under development. As indicated above, further development at Mack Point must be proposed first, before Sears Island.
Conclusions
The MDOT Umbrella Wetland Mitigation Bank Prospectus should be denied. Important reasons for this conclusion include:
The area proposed for preservation mitigation credit is under no demonstrable threat of destruction or adverse modification.
The area is publicly owned and protected by law.
Extent of area proposed for preservation is not supported by terms of the conservation easement.
The credit ratio for preservation credit, if applicable, should be 30:1.
The Prospectus fails to use a watershed approach and fails to establish need.
To date there has been no public hearing; one is warranted.