You can huff and puff, Cape Wind Associates seems to be telling the Cape Cod Commission, but you have no legal standing to blow down our house.
A public discussion on the standards the land-use agency can use to determine the extent of its jurisdiction and review of the 130-turbine wind farm planned for Nantucket Sound was held yesterday at Barnstable Town Hall.
Boston attorney David Rosenzweig, representing Cape Wind, told the commissioners that the 1996 Regional Policy Plan and its minimum performance standards were in effect when the company filed for joint commission and state review back in 2001.
A new RPP with revised standards was adopted in 2002, and project opponents say that document must be used because the joint scooping with the county did not constitute a formal review by the commission.
That was one of the questions commissioners hoped to learn more about when they scheduled the session.
Another question had to do with whether Cape Wind’s application to the agency was complete, given that the federal Minerals Management Service has yet to issue even its draft environmental impact statement on the project, meaning the company is far from having any formal authorization to build in federal waters.
Given the federal government’s exclusive authority in federal waters, Rosenzweig said, it was not up to the commission to “determine whether we have particular rights. It’s up to the commission to enforce its regulations.”
Commission member Bob Jones framed a third question ““ whether the commission’s review should take in the entire project or stop at the limits of state waters ““ by asking Rosenzweig, “How can we possibly look at that (transmission line in local waters) without looking at what’s hooked on to the end of that line? Suppose it was an atomic bomb.”
The attorney insisted that, due to its location in federal waters, the wind farm itself and the rest of the transmission line “can’t be put to a benefits/deficits test by the Cape Cod Commission.” The only exception to federal sway, he noted, was the state office of Coastal Zone Management, which must determine if activity in federal waters is consonant with the state’s CZM plan.
Town of Barnstable attorney Charles McLaughlin offered arguments diametrically opposed to Rosenzweig’s. “It’s straining the English language and the intent of the legislators (who voted for the Cape Cod Commission Act) to suggest all you can do is look at a cable,” he said.
He imagined a Wal-Mart to be sited on the border between Bourne and Wareham, a town that does not belong to the commission. Would the agency not be allowed to review a building for storage of hazardous waste if it happened to be located only on the Wareham side?
Cape Wind has opened the door to wider review, McLaughlin said, by providing ample information to the commission about the benefits will come from operation of the turbines in federal waters.
Should the local agency not be able to question those benefits and any potential detriments?
“This doesn’t mean you exercise jurisdiction in federal waters,” McLaughlin said, such as moving towers, but the commission could impose conditions on effects likely to affect Cape shores and waters.
“You may not be able to dictate what happens in federal waters,” he said, “but you can comment and impose conditions.”
Barnstable attorney Pat Butler, representing the Alliance to Protect Nantucket Sound, noted the unusual nature of the project. “This is a territorial hybrid,” he said. “It’s unique in this county, this state, perhaps this country.”
Displaying a Barnstable assessors’ map of south-side properties, Butler underscored the front-line resources that were at risk, ranging from water quality to community character to the town’s tax base.
At its next meeting, the commission plans to vote on how to proceed. Whichever way members go, there’s likely to be a lawsuit waiting around the corner.
Commission member Leo Cakounes asked both sides to help his board do its job, and promised a fair hearing.
“Our decision will have to be made on a legal agenda,” he said, “regardless of what we feel in our hearts is the right thing to do.”
By Edward F. Maroney
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