In 2005, a 46-kilovolt cable was sunk 8 feet beneath the seabed of Nantucket Sound and run underground to an NStar facility in Barnstable. It was the second cable to plug Nantucket into the region’s electrical grid and was meant to ensure reliable electricity for islanders.
The Cape Cod Commission, the regulatory and planning agency for Barnstable County, did not review any part of the 33-mile line.
On Thursday, the commission rejected a pair of similar, if not equal, 115-kilovolt electrical cables for the proposed Nantucket Sound wind turbine project. But Cape Wind Associates and its advocates already considered the agency’s treatment of the two projects to be inconsistent.
Cape Wind wants to use the cables to transmit energy from the 130 wind turbines it hopes to erect in the Sound. On Thursday the commission unanimously denied the project on procedural grounds, throwing a wrench into the company’s plans.
David Rosenzweig, an attorney for the company, raised the Nantucket cable issue again at the hearing.
“It is impossible to reconcile these two matters,” Rosenzweig said. “It raises significant questions in our mind as to the consistency of the commission’s process.”
The commission and Cape Wind disagree over whether the Cape agency has jurisdiction over effects of the project that come from the portion in federal waters. The existence of those “non-jurisdictional” areas – the turbines themselves – seems to have influenced the commission’s review of Cape Wind’s transmission lines, Rosenzweig said.
If the commission was focused solely on the cables, then it should have given the project the same cursory consideration it applied to the Nantucket cable, according to Cape Wind.
But commission staff have said that a review of the Nantucket cable was not mandated and would have been unusual.
“There was no review required for the Nantucket electric cable because it did not require (a state environmental impact review,)” said commission planner Phil Dascombe during Thursday’s hearing.
Reached yesterday, Dorr Fox, the commission’s chief regulatory officer, said that distinction was the crux of the matter.
“It’s not a determination that we make,” he said. “It’s the state’s determination.”
Once the state makes a determination that a project requires an environmental impact report it automatically triggers a commission review. The state approved an environmental review of the project in March.
Although the commission has the ability to review a project at its own discretion, it has only done so twice in the 17 years it has existed, Fox said.
Cape Wind opponents argue that the two cases differ because of what’s at the end of the cables.
“The difference between the two projects is in essence the turbines,” said Patrick Butler, an attorney for the anti-Cape Wind group, the Alliance to Protect Nantucket Sound. Additionally, Butler said, because the Nantucket cable must run under water, it was less prone to regulatory barriers. Whereas Cape Wind’s turbines could be sited on land, the company’s cable was held to a higher standard of review.
The commission was right to deal with the overall effects of the project, including economic, aesthetic and safety concerns emanating from the portion of the project in federal waters, Butler said.
Even some of Cape Wind’s supporters argued that the turbines were important but for a different reason.
“What’s different here is that the cables are connected to an important renewable energy project,” Susan Reid, a staff attorney with Conservation Law Foundation, told the commission Thursday.
Cape Wind also contends that its lines will not do the same damage to eel grass beds that the installation of the Nantucket cable did. The cable from the island was installed through a large area of eel grass near where it came ashore in Hyannis.
Cape Wind’s proposed route would not pass through any eel grass, said company spokesman Mark Rodgers. The closest it comes, according to a 2001 survey of the coastal waters, is 70 feet from an eel grass bed that grows west of Egg Island in West Yarmouth.
The commission pushed the topic, however, and in its decision decided that more information on the eel grass along the entire route of the cable, including the part passing through federal waters, was necessary.
Cape Wind has promised to fight the commission’s decision. It may do so by appealing to the state’s Energy Facilities Siting Board. Or, it could sue in Massachusetts Superior Court or Land Court
By Patrick Cassidy
20 October 2007
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