Part 2 (Pages 7 - 11) memo from EPA to Army Corps of Engineers and Federal Highway Administration that 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.

Read Part 1 (Response to DIFW) HERE


Part 2 of US EPA letter to:

Paul Lariviere, Federal Highway Administration
Lieutenant Colonel Michael Bradbury, U.S. Army Corps of Engineers

December 13, 1995

Page 7

Responses to DMR Letter

* DMR takes exception to calling Sears unique and unusually diverse. It cites the Brown (1993) classification system as proof of this.

As stated above. the joint evaluation refers to the Sears island habitat as uncommon and highly productive, rather than "unique." On the western portion of the island, there are a wide variety of habitat types. It is uncommon to find rocky intertidal, tide pools, intertidal mudflats, eelgrass, kelp and a variety of aubtidal habitats in one location.

South of the rock jetty, the island is fairly exposed so rocky shoreline predominates; north of the rock jetty, the shoreline is more protected and mudflats and softshell clams prevail. Subtidally, eelgrass dominates with smaller patches of kelp. .

The Brown document, a statewide system to classify marine habitats, looks at physical characteristics of a substrate and species presence and lists representative sites. The document itself does not have data specific to Sears Island and only determines the prevalence of each habitat type individually; it docs not document mixtures or juxtaposition of habitat types.

* Maine DMR questions the value of eelgrass in Maine. Numerous studies have been done examining the value of eelgrass, many of which have been done south of Cape Cod. For this reason, EPA and the New England Aquarium have been examining the importance of eelgrass to finfish in Masaachusetts, north of Cape Cod. Additionally, Dr. Fred Short has collected some data in the Piscataqua River, and at least one study haa been done in Canada examining the importance of eelgrass to juvenile cod (Morin at al. l99l). These three pieces of research each document that eelgrass ftervaa &o a habitat and feeding area for a variety of commrcially important fish. This agrees with many studies from the mid-Atlantic. The published scientific literature and yet unpublished studies done in Massachusetts and New Hampshire provide a uniform position; eelgrass is a valuable habitat utilized by commeroially important finfish species.

Assuming that the laws of physics are consistent worldwide, eelgrass in Maine should provide shelter against currents and wave action. Numerous studies (Thayer et al. 1985, Heck and Thoman 1981) document the prevalence of amphipods and isopods utilising these beds for shelter. At night, amphipods and isopods rise into the water column above the vegetation to feed. Many pelagic fish frequent eelgrass beds to feed on the abundant amphipods and isopods (Robertson and Howard 1978). We are aware of no credible


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data to support that eelgrass beds in Maine function any differently than eelgrass beds in other geographic locations.

* Maine DMR disagrees with the impact assessment and claims that the impacts are exaggerated.

DMR does not provide any persuasive rationale why we should alter the impact assessment. The joint evaluation uses only numbers generated by Maine DOT'S consultant. To our knowledge, all parties agree that 0.6 acres direct fill of eelgrass would be a certain loss. The loss of an additional 8.8 acres due to indirect impacts from shading, prop wash and back eddies ia likewise definite. If the project goes forward as described in the Draft Environmental Impact Statement, a shadow would be cast which will result in the loss of vegetation. Moreover, vessels operating in and around the pier would uproot vegetation or increase turbidity resulting in eelgrass loss. Additionally, the report documents a 4 acre "temporary" loss of eelgrass due to dredging. Eelgrass, once lost, is very difficult to restore, especially in an area that will be an active port area with degraded water quality. The federal resource agencies doubt that this loss will be temporary and include this 4 acres in the permanent Ioss column.

We agree that the question of reduced somewhat fluid. However, it is quite [possible areas labelled as suffering from reduced productivity may be lost completely]. The analysis done in the draft Marine Impacts Report was a credible attempt to quantify the larger indirect impacts.

* DMR states that the 4 acre impact due to dredging may actually be less, because the impact will occur between October to May, When eelgrass growth is slow.

Traditionally, dredging projects have been done in the late fall, winter or early spring to reduce conflicts with navigation, and anadromous fish runs. The impact of winter dredging on eelgrass has never been definitively studied and it has been widely assumed that eelgrass is less vulnerable in the winter because its growth is slowed. A cold watar plant, eelgrass growth in Maine is primarily controlled by light. Growth slows in fall and early winter with diminished daylight and increases in late winter and early spring. In the winter, the plants, in effect, live on a thin margin. Shorter days mean less opportunity for photosynthesis and a greater dependence on reserves. Dredging projects in the winter can increase turbidity tor extended periods and greatly reduce the opportunity tor photosynthesis. During a period of high growth, late


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spring/ summer early fall, a plant be better able to withstand such an insult than in winter when the margin for error is much smaller. These factors militate against assuming that the impact would in faot be less than four acres.

* DMR claims the impacts from the earlier action are irrelevant.
This is untrue for purposes of federal environmental review. The impacts from the earlier action are part of the project and must be included in the impact assessment. This is consistent with NEPA requirements and regulations.

On a related issue, on December 24, 1987, then Commissioner of DMR William Brennan wrote to MDOT Commissioner Dana Connors and stated "DMR and DOT have no intention of leaving the creation of compensatory clam area in a non-productive state." As the data shows, the compensatory clam area is currently and has been for the past few years in a non-productive state. EPA expects that Maine DMR shares our concern over the failed mitigation attempt and the ongoing loss of resources that has resulted from the earlier action.

* DMR claims the loss to resources will not be as great as the technical attachment states, because resources and impacts to those resources are exaggerated.

In determining resources present at the site, the federal resource agencies relied on information supplied in the Marine Baseline Report, published scientific literature and site visits. Much of the resource information was generated by site visits conducted by Maine DOT'S consultants and the federal resource agencies. Information from this field work was included in the document. For additional information on resources, published scientific studies and unpublished credible scientific studies were used.

In determining impacts to resources, the federal resource agencies assume that a loss of physical habitat will have a negative impact on the natural resource values of that habitat. Thus, the large impacts to eelgrass, subtidal unvegetated bottom, and intertidal mudflats will have a negative impact on resources that utilise those habitat types.

The joint evaluation utilizes the impact analysis from the DSEIS, and the extent of direct impacts is indisputable. Roughly 16 acres of intertidal mudflats will be directly filled and, as DMR points out in its letter, mudflats are important for numerous commercially important species. Additionally, almost 13 acres of subtidal soft bottom and 0.6 acres of eelgrass will be directly filled. The only


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possible area of uncertainty would be indirect impacts to eelgrass; however, as explained above, the uncertainty pertains to the precise extent, not the probability of the impacts.

* DMR stated that the impacts to the Rockland disposal site from the dredge material will be minimal.

The material proposed to be dredged has not yet been tested to determine its suitability tor disposal at the Rookland Disposal Site. EPA, the Corps and NMFS have requested that the material be tested for dioxin, due to the site^s proximity to the Penobscot River and the State's health advisory on fish and lobster consumption due to elevatad dioxin levels. If testing indicates that the material is not suitable for disposal at Rockland, then an alternative disposal aite is necessary.

* DMR does not believe that the project causes or contributes to large impacts to marine environment.

Dr. Fred Short's 1995 report, "Eelgrass Distribution in Penobscot Bay," documents that poor water quality limits the distribution of eelgrass in the bay. Eelgrass distribution becomes more limited closer to the river mouth; in addition. eelgrass is limited to shallower water. Eelgrass is greatly diminished over its historic range, occupying dramatically less area than it could. This project would have a large effect on a resource that is already dramatically impacted in Penobscot Bay.

Moreover, the proposed port would also adversely affect other valuable marine habitat, including intertidal habitat, mudflats, clam flats, and unvegetated subtidal habitat.

Historically, the Sears Island marine environment supported extremely high densities of clams, and the area southeast of the project site supported commercial densities of scallops. Water quality degradation, loea of habitat, and overfishing have all contributed to depletion of shellfish and finfish stocks. Construction and operation of the proposed terminal would contribute to the loss of habitat adversely affecting these species.

Finally, as stated above, our judgment regarding the significance of the impacts is based on its application of the facts of the case against the applicable federal regulatory criteria developed by EPA. DMR does not in general and has not in this case utilized these federal regulatory criteria and its comments regarding the significance of impact should be viewed in that context


page 11

* DMR disagrees with the joint evaluation's statement that this will be the largest impact in New England in the past decade. DMR's disagreement is based on its dispute with the federal resource agencies over the eelgrass impact assessment. We believe our statement is correct. When putting this project into context, all the marine and freshwater impacts were considered. Indeed, EPA New England informally surveyed other coastal EPA regions to determine if any other Region had allowed such a large marine impact. The poll of other regions did not able to turn up any other projects that allowed this severe of a loss to submerged aquatic vegetation (SAV).

From a regional standpoint, EPA stands by ite statement that, if permitted as proposed, this would be the most damaging project in recent memory in New England to submerged aquatic vegetation; with the additional impacts to intertidal mudflats, subtidal bottom and freshwater wetlands, it would surpass any project in New England in the last decade in terms of impacts to aquatic resources.

* DMR disagrees with the statement that commercial fishing would be affected by the project.

Direct Iosses to commercial fishing will be felt by displacement of gear and fishing opportunities. Some lobster gear is currently deployed in the area adjacent to the rock jetty. This area would be lost to lobstermen. Furthermore, four acres of sortshell clam habitat has already been lost and remains unmitigated.

Indirect loss will occur via the loss of habitat for commercially important finfish and invertebrates (lobster, crabs, clams, worms) as discussed earlier. Thus, we believe that a negative impact will be felt by the commercial fishing industry.

* DMR believes that a mitigation plan can be developed to compensate fully for the unavoidable impacts of the project.

The federal resource agencies have much experience in attempting to recreate, restore or mitigate for the resources and habitats that would be lost by this project. We continue to pledge our assistance in this regard, while acknowledging that the challenge is great.

I hope these comments help you in your continued review and respective decisions on the proposed terminal. I urge you to more carefully consider the joint evaluation document prepared by my staff and representatives from FWS and NMFS. Our agencies have devoted considerable time and expertise to ensuring that our

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