Updated June 22, 2009:

Original Message
From: Babara Durkin
To: Walter Cruickshank Minerals Management Service MMS
Cc: James.F.Bennett MMS, Rodney Cluck MMMS, Timmothy Timmerman US EPA, Alex Hoar U.S. Fish and Wildlife, Michael Boyd, President of Californians for Renewable Energy

Subject: MMS Memorandum of Understanding of June 4, 2009; MBTA; species protections

June 15, 2009

Rowan W. Gould
U.S. Fish and Wildlife Service
Walter Cruickshank Director
Minerals Management Service

RE: Cape Wind immitigable harm to endangered species and migratory birds

Dear Mr. Cruickshank and Mr. Gould:

It has come to my attention that Minerals Management Service (MMS) and United States Fish and Wildlife Service (USFWS) have signed a (1.) Memorandum of Understanding on June 4, 2009; "Regard ing Implementation of Executive Order 13186", "Responsibilities of Federal Agencies to Protect Migratory Birds"

While, the U.S. EPA response (2.) of February 17, 2009 (CEQ #20090006) to the MMS Cape Wind MMS Final Environmental Impact Statement states:

"Monitoring, Mitigation & Management":

"Enforceable monitoring and mitigation requirements for project construction and operation will be a critical component of any MMS authorization for the Cape Wind project."

And, the (3.), January 2009 MMS U.S. Department of Interior Minerals Management Service Section 7.0 Consultation and Coordination document states:

"Additional obligations under E.O. 13186 include supporting other conservation efforts already underway and incorporating bird conservation into agency planning. MMS has been working with FWS to develop an MOU pursuant to this E.O. that will include mitigation measures to minimize take and promote conservation of migratory birds."

"MMS filed its BA in May of 2008 and has completed formal consultation under the ESA with the issuance of the final Biological Opinion on November 21, 2008. MMS has worked with USFWS to address issues of concern to develop an avian monitoring plan and other mitigation measures."

Conspicuously absent in the June 4, 2009 MMS USFWS MOU are the specific "enforceable monitoring and mitigation" actions that the US EPA identifies as "a critical component of any MMS authorization for the Cape W ind project". While this MOU states, "The Parties Agree to:" "iii" "Monitor avian mortality and/or avoidance behavior at offshore facilities".

Furthermore, MMS identifies its "obligations" include mitigation measures, pursuant to E.O. 13186, will be included in the MOU, "to minimize take and promote conservation of migratory birds".

However; MMS and USFWS have failed to observe your E.O. "obligations" as well as failed to adequately respond to the EPA identified, "critical component" by identification and inclusion of "enforceable monitoring and mitigation" measures in the June 4, 2009 MOU.

As the MMS Section 7 Consultation document represents, "MMS has worked with USFWS to address issues of concern to develop an avian monitoring plan and other mitigation measures"; MMS should be able to specifically identify these "enforceable monitoring and mitigation" measures.

It is disingenuous, to the degree of introduction of the risk of extinction of the roseate tern, at minimum, for MMS to issue a Cape Wind favorable Record of Decision absent MOU identification of these "enforceable monitoring and mitigation" measures.

Four bilateral treaties with Canada, Mexico, Russia and Japan require our federal government's compliance with the laws enacted to protect migratory birds such as are present in Nantucket Sound, and threatened by Cape Wind's proposal to construct 130 wind turbines in Nantucket Sound.

Unless and until MMS and USFWS can meet statutory requirements intended to protect Migratory Birds, MMS must not issue a Cape Wind favorable Record of Decision, or extend the invitation to Cape Wind to commit criminal action.

Most Respectfully,

Barbara Durkin
48 Moore Lane
Northboro, MA 01532
Telephone: (508) 612-4133

(1.) USFWS MOU with MMS June 4, 2009:
http://www.mms.gov/PDFs/MMS-FWS_MBTA_MOU_6-4-09.pdf

(2.) US EPA response to MMS Cape Wind FEIS of February 17, 2009:
http://www.epa.gov/NE/nepa/pdfs/2009/EPACapeWindFEIS.pdf

(3.) MMS Consultation and Coordination Processes:

Updated May 5, 2009

RE: I.S. EPA response (CEQ #20090006) to the MMS Cape Wind MMS Final Environmental Impact Statement of February 17, 2009; Best Science, Cape Wind threat of extinction in Nantucket Sound

Dear Interior Secretary Salazar:

I ask that you not sign off on the Cape Wind project on the basis, in part, of the critical U.S. Environmental Protection Agency response to Minerals Management Service Cape Wind Final Environmental Impact Statement. And on the basis that Best Science and Best Management practices are being ignored in the Cape Wind NEPA review process as are USFWS/DOI interim wind turbine siting guidelines as Best Science. .

You have stated that Best Science will be the basis for DOI MMS decision making. Public Trust, endangered species present in Nantucket Sound, are at the brink of extinction, and your reliance on Best Science will prevent the Cape Wind threatened extinction of the roseate tern.

The EPA MMS Cape Wind FEIS 2/17/09 comments state:

"Monitoring, Mitigation & Management":

"Enforceable monitoring and mitigation requirements for project construction and operation will be a critical component of any MMS authorization for the Cape Wind project."

How would MMS/Cape Wind/monitors implement, let alone enforce, Adaptive management monitoring and mitigation with Cape Wind when "effective techniques to perform post-construction monitoring simply do not exist" according to the lead federal regulator, under the ESA Section 7 consultation process, USFWS, in their Cape Wind MMS DEIS comments?

Mitigation of avian mortalities by wind turbines has not worked to date to reduce harm to wildlife on land. Mitigation of avian mortalities is not possible with Cape Wind as one cannot mitigate what one cannot effectively monitor as avian or bat mortalities over water.

When will US FWS Best Science interim wind turbine siting guidelines be required instead of voluntary observance?

supporting:

http://www.abcbirds.org/newsandreports/releases/070430_testimony.html

Donald Michael Fry, PhD Director, Pesticides and Birds Program of the American Bird Conservancy to Chairwoman Bordello and distinguished members of the Fisheries, Wildlife and Oceans Subcommittee on May 1, 2007; Oversight Hearing on: "Gone with the Wind: Impacts of Wind Turbines on Birds and Bats." :

"The Fish and Wildlife Service developed an interim series of voluntary siting guidelines in 2003, and revised them after a prolonged comment period in 2005. Federal guidelines must be required rather than voluntary. The wind industry has provided ample evidence that voluntary guidelines are regarded as unimportant and are thus summarily dismissed"

Best Science/Best Management Practice:

The Department of the Interior and U.S. Fish and Wildlife Service guidelines for siting wind towers in 2003:

"--Avoid placing turbines in documented locations of any species of wildlife, fish, or plant protected under the ESA.

-- Avoid locating turbines in known local bird-migration pathways or in areas where birds are highly concentrated, unless mortality risk is low (e.g., birds rarely enter the rotor-swept area). Examples of high-concentration areas for birds are wetlands, state or federal refuges, private duck clubs, staging areas, rookeries, roosts, riparian areas along streams, and landfills.

-- Avoid known daily-movement flyways (e.g., between roosting and feeding areas) and areas with a high incidence of fog, mist, low cloud ceilings, and low visibility."

(Avoid siting wind turbines in Nantucket Sound in other words)

The ESA Federal Regulator US FWS April 21, 2008 comments provided to Dr. Cluck, Cape Wind Project Manager of MMS, on the Cape Wind MMS DEIS:

"The current framework that MMS is proposing would forgo refinement of pre-construction study protocols and set in motion an adaptive management process that would be doomed to failure because effective techniques to perform post-construction monitoring simply do not exist."

Cape Wind draft EIS USFWS comments continue:

"With respect to natural resources for which Fish & Wildlife Service is responsible, we find that there is considerable need to correct inaccuracies, explain inconsistencies, clarify ambiguities, fully articulate the limitations of the available science, and reach logical conclusions about the extent of impacts or the inability to predict them in the absence of information," said Michael Bartlett, supervisor of Fish & Wildlife's New England field office in Concord, N.H."

"The Draft Environmental Impact Statement repeatedly and inappropriately draws conclusions regarding anticipated environmental impacts, or lack thereof, in the absence of important site-specific information on natural resources in...Nantucket Sound." Chief among these are migratory birds and the benthic and pelagic resources the birds depend on."

Mass Audubon's testimony on Cape Wind to the USACE:

The President of Mass Audubon, Laura A. Johnson, submitted Mass Audubon's comments on the Cape Wind DEIS on February 23, 2005; to Ms. Karen Kirk Adams, the Cape Wind Energy Project Manager U.S. Army Corps of Engineers, New England District -- Reference File No. NAE-2004-338-1, EOEA No. 12643:

"By utilizing other bird mortality data provided in the DEIS, Mass Audubon staff scientists arrived at avian mortalities that ranged from 2,300 to 6,600 collision deaths per year."

Mass Audubon comment to the USACE on the Cape Wind DEIS:

"This area of Nantucket Sound is within the eastern U.S. migratory bird flyway and hosts high concentrations of wintering waterfowl, and is in close proximity to nesting, foraging and staging areas for federally endangered roseate terns and threatened piping plovers. Substantial numbers of federally endangered sea turtles and protected marine mammal species frequent the proposed project site. In addition, the proposed site provides habitat for federally regulated finfish and shellfish populations."

http://www.massaudubon.org/PDF/CapeWindDEIS.pdf

Avian experts sound off on Cape Wind threat of immitigable harm to endangered wildlife:

* CAlifornians for Renewable Energy President-Michael Boyd 5/06/08:

"The Cape Wind project is sited over water so there is no way to quantify the impact of wind turbines on avian species because we have no way to count bird and bat carcasses like we do in the Altamont Pass California where the turbines are over land. This also means that adaptive management will not work since we have no way to gage the impact of mitigation measures for these wind turbines."

Best Scientist Donald Michael Fry, PhD Director, Pesticides and Birds Program
American Bird Conservancy:

"We may never know what the magnitude of the problem will be at Cape Wind, because the monitoring planned for the project is inadequate. The radar studies conducted by Cape Wind were inadequate. The Fish and Wildlife Service review of the project and of MMS PEIS was quite critical."

As endangered species present in Nantucket Sound are "at the brink of extinction", and Adaptive Management is "doomed to failure" according to US FWS, how will MMS/Cape Wind avoid immitigable and illegal environmental damage, "extinction", post-construction Cape Wind?

Supporting:

Cape Cod Times 4/22/08

Roseate terns: 'On the brink of extinction'

"The roseate tern is listed as endangered, but we believe it is on the brink of extinction," said Jack Clarke, public policy director for the Massachusetts Audubon Society." Cape Cod Times 4/22/08.

http://www.massaudubon.org/PDF/CapeWindDEIS.pdf

Mass Audubon comment to the USACE on the Cape Wind DEIS:

"This area of Nantucket Sound is within the eastern U.S. migratory bird flyway and hosts high concentrations of wintering waterfowl, and is in close proximity to nesting, foraging and staging areas for federally endangered roseate terns and threatened piping plovers. Substantial numbers of federally endangered sea turtles and protected marine mammal species frequent the proposed project site. In addition, the proposed site provides habitat for federally regulated finfish and shellfish populations."

Cape Wind, according to U.S. Fish and Wildlife, has not produced the "baseline" pre-construction avian data that NE FWS has been seeking regarding bird life in Nantucket Sound since 2002. USFWS and NE Regional Director Michael Bartlett's scoping comments on the Cape Wind project to Minerals Management Service agency of the Department of the Interior of July 11, 2006:

"Had the applicant conducted the three year radar study to identify the spatial and temporal use of the airspace by avian species and the other supporting studies recommended in Service scoping comments, the information needs for those resources would be largely satisfied. However, they have not, and it will now take three additional years to collect the necessary baseline information identified in our previous scoping comments and in our comments on the Corps DEIS. Accordingly, we recommended that MMS devise a schedule for the NEPA process based on the time it will take the applicant to collect the data necessary to address scoping comments dating back to 2002 and data deficiencies identified in comments on the Corps DEIS in 2005."

https:/ocsconnect.mms.gov/pcs-public/do/CommentDownloadPDF?objectId=09011f80800d5264

Dr. Fry of ABC May 1, 2007; testimony to Chairwoman Bordello:
.
"Biological Significance of wind turbine mortality" Excepts:

"Collaborative efforts to successfully address the impacts of wind projects on birds and wildlife have been a failure"

"While the actual number of birds killed by wind turbines is unknown, estimates have been made in the range of 30,000 to 60,000 per year at the current level of wind development. The wind industry is prepared to increase the number of turbines 30 fold over the next 20 years, in order to fulfill the President's request that renewable energy projects supply 20% of the nation's energy needs by 2030.

At the current estimated mortality rate, the wind industry will be killing 900,000 to 1.8 million birds per year." [cut]

The House Subcommittee on Fisheries, Wildlife and Oceans

Testimony of Donald Michael Fry, PhD Director, Pesticides and Birds Program
American Bird Conservancy
May 1, 2007
Room 1324 Longworth House Office Building.

American Bird Conservancy, ABC:

"Identification of important bird areas. These areas should be off-limits to wind development unless adequate preventative measures can be discovered to minimize incidental take of protected bird species."

"Sites requiring special scrutiny include sites that are frequented by federally listed endangered species of birds and bats, in known bird migration pathways, areas where birds are highly concentrated, and areas that have landscape features known to attract large numbers of raptors."

It is important and relevant to Cape Wind to note: "...the American Bird Conservancy has designated Cape Cod and the nearby islands as an Important Bird Area" 'Killer Wind' by Joe Eaton.

http://www.earthisland.org/eijournal/new_articles.cfm?articleID=940&journalID=82

Adaptive Management Monitoring and Mitigation plans have not worked to date on land:

"Altamont Pass turbines still killing birds of prey"

January 12, 2008

"Year-old plan to reduce the number of birds killed by turbines isn't working"

http://www.recordnet.com/apps/pbcs.dll/article?AID=/20080112/A_NEWS/801120316

San Francisco Chronicle: January 2, 2008 page A 1:
THE DEADLY TOLL OF WIND POWER

"Despite yearlong effort to curb bird deaths by turbines on the Altamont Pass, many still have perished…"

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/01/02/MNITTM9FA.DTL

Dr. Fry's testimony of May 1, 2007 link:

http://www.abcbirds.org/newsandreports/releases/070430_testimony.html

* By Chris Metinko, Inside Bay Area 4/24/07 (answering, Who is Michael Boyd?)

"A lawsuit filed against the county in October by the Golden Gate Audubon Society, Californians for Renewable Energy and four other local Audubon chapters challenged the county's decision o renew permits for Altamont Pass wind turbines. A subsequent settlement forces the wind industry to commit to a 50 percent reduction in raptor deaths by November 2009, and remove the deadliest turbines and continuing winter shutdowns of the wind machines." [cut]

The federal government continues to ignore Best Science and Best Management Practices offered by our Best Scientists in the context of Cape Wind proposed for Nantucket Sound--where the roseate tern is at the "brink of extinction".

Subject: House Subcommittee on Fisheries, Wildlife and Oceans Oversight Hearing on "Going, Going, Gone? An Assessment of the Global Decline in Bird Populations"

Held: Thursday, July 10, 2008, at 10:00 a.m.

Testimony (excerpt only):

George Wallace, PhD
Vice President for International Programs
American Bird Conservancy

"Last year, my colleague at ABC, Dr. Michael Fry presented testimony to the full Committee on the ongoing impact of commercial wind energy production. While the actual number of birds killed by wind turbines is unknown, estimates have been made in the range of 30,000 to 60,000 birds per year at the current level of wind development. However, the wind industry is prepared to increase the number of turbines 30 fold over the next 20 years in order to fulfill the President's request that renewable energy projects supply 20% of the nation's energy needs by 2030. At the current estimated mortality rate, the wind industry will be killing 900,000 to 1.8 million birds per year. While this number is a relatively small percentage of the total number of birds estimated to live in North America, many of the bird species being killed are already declining for other reasons, and losses of more than a million birds per year would exacerbate these declines.

ABC recommends that any renewal of the production tax credit by Congress include provisions that require minimizing bird and bat kills by wind projects, and require developers to follow standard Best Management Practices in avoiding and minimizing bird and wildlife impacts in order to qualify for the full, taxpayer-provided subsidy."

Thank You,

Barbara Durkin
Northboro, MA 01532