December 13, 1995 memo from US EPA to Army Corps of Engineers and Federal Highway Administration.The memo refutes claims made by the Maine Dept of Inland Fish and Wildlife and Dept of Marine Resources that Sears Island's ecosystems are not worth protecting from being turned into an industrial port.

Part 1 (pages 1 - 6) (Read Part 2 (Response to DMR) HERE)


Paul Lariviere, Division Administrator
Federal Highway Administration
Edmund Muskie Federal Building Augusta, ME 04330

Lieutenant Colonel Michael Bradbury,
District Engineer
U.S. Army Corps of Engineers
New England Division
424 Trapelo Road Waltham, MA 02254

Dear Mr. Lariviere and Colonel Bradbury

The U.S. Environmental Protection Agency (ERA) is in receipt of the Maine Department of Inland Fisheries and Wildlife (DIFW) and Maine Departent of Marine Resources (DMR) letters of October 13, 1995 regarding the proposed Sears Island cargo terminal.

In these letters, DIFW and DMR take issue with certain aspects of the September 29, 1995 Evaluation of Significance document prepared jointly by EPA, U.S. Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS). I welcome the views of DIFW and DMR concerning this important project and realize that these state agencies may have perspectives which differ in some measure from ours. Unfortunately, the letters submitted by DIFW and DMR at times misrepresent the findings made by the federal agencies, fail to recognize widely accepted scientific findings and misinterpret the applicable federal regulations. Rather than address every-point raised by the state agencies, I am providing you with EPA's perspective on what seem to be the key issue contained in each letter.

Responding to each point

* The DIFW letter states that it has been "involved" with the Sears Island project throughout the entire review period.

DIFW had some past involvement with the project but has not participated in the numerous interagency meetings and site visits that havr taken place since 1991, in which the values of and impacts to environmental resources on Sears Island have been discussed. In 1982, DIFW stated at a meeting that if the port were built, it would "view the island as lost habitat" In 1987, DIFW wrote to the commissioner of MDOT regarding the proposed Sears Island cargo terminal. DIFW pointed out that the proposed location for the Sears Island terminal was a Class B area, and stated that "since the shoreline [of Sears Island] is currently undeveloped, it (cont'd next page)


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should remain so ... A Cargo Port in this area would be a non-conforming use based on the recommended guidelines."(see footnote 1) These comments were all made prior to DIFW learning of the presence of valuable wetland and eelgrass habitats on Sears Island.

* The DIFW letter states that the federal agencies "characterize the island as a very unique wildlife habitat."

In fact, the evaluation done by the three federal resource agencies used the word "unique" only once; the agencies stated that "uniqueness or rarity of resources is not a prerequisite for finding impacts significant." As you know, the U.S. Army Corps of Engineers (Corps) is not required to make a finding of uniqueness before concluding that a proposed project would cause or contribute to significant degradation of waters of the United States. Nevertheless, the resource agencies believe that Sears Island does have an unusual combination of characteristics that make it highly valuable for wildlife.

Moreover, the available evidence shows that there are very few, if any large, uninhabited islands with flora similar to that of Sears Island oft the coast of Maine. Finally, regardless of the rarity of the habitats found on Sears Island, there have been no other proposals in recent years having such severe impacts to valuable marine and freshwater ecosystems.

* DIFW repeatedly states that the Sears Island habitats are "common" and "typical" of the Maine coast and Penobscot Bay.

DIFW provides no evidence to support this contention. The federal resource agencies do not assert that the freshwater wetlands found on Sears Island are themselves unusual (as suggested on page 3 of the DIFW letter). However, we do believe that the forested wetlands on Sears Island are of high quality, and that the mixture of freshwater and marine habitats found on Sears Island is uncommon for coastal Maine. In fact, MDOT'S and FHWA'S DSEIS states that "[the forest blocks on Sears Island are larger than those that typically occur along the shore of Penobscot Bay." Therefore, because large tracts of forest are critical for forest interior and area sensitive species, Sears Island does not appear to provide habitat "typical" of coastal Maine.

(Footnote: 1) A second letter from DIFW, written two weeks later, suggested that given the importance of the project to the State's. economy, DIFW was "comfortable" with the conclusions presented in the DSEIS.


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* DIFW is likely correct in suggesting that Sears Island is not as unique as Cobscook Bay, Merrymeeting Bay, and other outstanding coastal areas. However, Sears Island is not "typical of the average situation," as DIFW states.

As discussed above, the federal resource agencies believe that Sears Island contains an uncommon mixture of habitats. The fact that Sears Island is not as large or ecologically diverse as some of Maine's other spectacular natural areas is not germane to the issue at hand.

* The DIFW letter states that Sears Island does not provide habitat "essential to the conservation of any state or federally endangered or threatened species, or provide significant wildlife habitat values tor any wildlife species."

DIFW is using the term "significant" as defined in the state's Natural Resources Protection Act (NRPA), which differs from the definition contained in the Section 404(b)(l) guidelines. In so doing DIFW appears to confuse NRPA'S definition of "significant" (which is restricted to a fairly narrow range of areas mapped by DIFW) with the way in which the term is used in the context of the 404(b)(1) guidelines. While we agree that Sears Island is not "essential" habitat for the survival of any endangered or threatened species, the Island provides important habitat for a wide array of fish and wildlife.(see footnote 2)

* DIFW states; that Sears Island does not provide "otherwise significant habitat values that are of particular importance to the conservation of any of these [wildlife] species."

We disagree. Forest interior habitat is important to the conservation of migratory songbirds; intertidal habitat is important to the conservation of shellfish and finfish; vernal pools are important to the conservation of amphibians, mudflats are important to shellfish, shorebirds, and some mammals, and eelgrass ie critical for a variety of shellfish and finfish. To suggest that these productive and diverse habitats do not contribute to conservation of the spacies utilising the habitats is scientifically unsound.

* DIFW states that "[m]any of the data and comments presented would equally apply to shoreland area throughout central and eastern portions for the state, including presence of some rare species such as the ribbon snake and southern bog lemming..."

(footnote 2) In fact, the DIFW agrees with this point when it states, "The Island and adjacent waters, as reported, are used by a broad array of wildlife."


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We believe this statement to be incorrect. The 1992 book The Amphibians and Reptiles of.Maine, prepared in collaboration with DIFW, states that the ribbon snake has been reported only in southwestern Maine (York County), with earlier records in Kennebec and Sagadahoc Counties. The book suggests that unless additional ribbon snake populations are discovered in the near future, the species should be considered threatened or endangered. In addition, the southern bog lemming is reported in technical literature aa being "uncommon" in Maine, living in "scattered" communities.

* DIFW states that the percentage of wetland and water dependent wildlife found on Sears Island is not unusual, and that these species would be expected in similar habitats throughout coastal Maine.

The wildlife data collected for Sears Island spanned several years and was, in many casas, quite intensive. Therefore, it is difficult to compare statistically the biodiversity found on Sears Island with other areas, as these other areas were not subject to the same rigorous analysis. However, preliminary comparisons of bird biodiversity on Sears Island with other islands and peninsulas in the area indicate that Sears Island is more diverse. Moreover, given the mixture of habitats found on Sears Island, common sense dictates that biodiversity would be higher than other areas without the same mixture of habitats.

* DIFW states that Sears Island is not heavily utilized by wintering deer, and faults the federal resource agencies tor stating that Sears Island provides important wintering habitat for this species.

In February of 1987, an employee of MDOT's environmental division noted that there was a "traditional deer wintering area" in the center of the island, and "good winter shelter for deer in the softwood areas." The author documented heavy use by deer in 15 to 20 inches of snow, and said it was "likely that deer will always use this area in the winter." Therefore, although Sears Island may not have a mapped deer wintering habitat, wintering deer nevertheless use it in heavy snow.

* The DIFW letter agrees that the alder thickets found on Sears Island are Important for woodcock, but states that these areas will "steadily decline" and eventually become forested, and thus

(Footnote 3 See February 12, 1987 state of Maine Inter-Departmental Memorandum from Mike Thompson to the file


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unsuitable for woodcock.

Not all shrub areas grow into forests. in fact, the hydrology of the alder thickets on Sears Island suggest that the current shrub conditions may persist indefinitely.

* DIFW states that vernal pool habitat can be created.

DIFW offars no documentation to support this contention. To the best of our knowledge, the creation of vernal pools has not been successfully demonstrated anywhere in New England. Moreover while spotted salamanders and wood frogs are laying eggs in the existing detention basins on the island, there is no evidence to suggest that these created basins function as vernal pools. Specifically, it is unclear whether the hydrology and invertebrate food base in these detention basins are sufficient to permit the eggs to hatch and the larvae to grow to adulthood.

* DIFW states that it was "misleading" when the federal resource agencies claimed that Sears Island "provides habitat for 21 state and/or federally listed wildlife.
As we stated in our evaluation, many of these species are State Watch List species, which "warrant special attention due to possible population declines, restricted distribution/ lack of infomation, and/or habitat loss" (see Evaluation, pg 5, footnote 6).

* DIFW suggested that the federal resource agencies stated that Sears Island provides "unique" habitat for bald eagles or peregrine falcons.

Nowhere did the federal resource agencies claim that Sears Island provides unique bald eagle or peregrine falcon habitat. Rather, the Evaluation actually stated that Sears Island provides resting and hunting habitat tor these species and that the individuals using the island would ba adversely affected by the proposed project.

* DIFW states there are only two osprey neste on Sears Island, ať opposed to the three counted by the federal resource agencies.

EPA contacted DIFW on October 23, 1995, and learned that the two nests referred so in the DIFW letter was based on, at best, 1986 data. DIFW also confirmed that the 1992 data used by the federal resource agendas were more accurate than the data used in the October 13, 1995 DIFW letter.


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* DIFW states that its Watch List species are "typical" of similar areas on the Maine Coast

This statement seems at odds with the criteria for a species to appear on the "Watch List." If this is true, perhaps the Watch List should be revised to reflect the fact that these species are more abundant than a "Watch List" listing would imply.

* DIFW agrees that the "project will directly impact the productivity of the areas altered by the proposal, as well as areas adjacent to these areas." However, DIFW states that indirect impacts are "speculative."

There is abundant literature relating to habitat fragmentation, noise impacts, water quality degradation, predation, etc. on wildlife species. While the exact dimensions of the impact (e.g., the outer limits of noise impacts) cannot be defined with certainty, it is simply not credible to imply that the impacts described in the Evaluation might not occur.

* DIFW appears to consider the welfare of a species (e.g., whether a single project would cause the outright loss of a species either locally or regionally) as the appropriate standard to judge the acceptability of environmental impact.

Such a standard would be wholly inappropriate both as a matter of sound environmental policy and law. Since a single project rarely, if ever, has such a widespread effect, the result of judging projects in this fashion would be to remove any meaningful federal protection for aquatic wildlife. The Section 404(b)(l) regulations instruct us to consider cumulative impacts, and to look at adverse impacts to ecosystem diversity, productivity and stability as we have done in our review of the Sears Island proposal.

* DIFW suggests & variety of mitigation measures that would be "adequate" for the proposed impacts associated with the Sears Island terminal, including preservation of existing wetlands and research.

The state mitigation standards as articulated by DIFW differ from the federal requirements; as explained in the Evaluation, the mitigation suggested thus far would not offset the impacts below the level of significance such that a permit could issue.