Marine Renewable Energy Collaborative Application
UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE GREATER ATLANTIC REGIONAL FISHERIES OFFICE 55 Great Republic Drive Gloucester, MA 01930-2276
Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First Street, N.E. Washington, DC 20426
SEP 1 2016
RE: Project No. P-14775, Cape Cod Canal and Bourne Tidal Test Site, COMMENTS ON PRELIMINARY PERMIT Dear Secretary Bose: We have reviewed your July 14, 2016 notice of application (Notice) by the Marine Renewable Energy Collaborative of New England (MRECo) for a preliminary permit to study the feasibility of the Cape Cod Canal and Bourne Tidal Test Site (Project) to be located on the Cape Cod Canal, in the Town of Bourne, in Barnstable County, Massachusetts. Although the scope of the Notice is limited to preliminary planning and does not authorize in-water work, the ultimate project has the potential to impact our trust resources. To the extent that the applicant and/or any federal agency seeks or grants pem1ission to do in-water work, they would be obliged to consult with us under the applicable statute. Accordingly, we anticipate that you and/or any other Federal permitting agency, such as the Army Corps of Engineers (ACOE), will need to perform an analysis of environmental impacts under the National Environmental Policy Act (NEPA). Further, you will need to consult with us pursuant to the statutory authorities outlined below before authorizing installation in the involved waterway. We hereby provide notice pursuant to 18 CFR §385.2 14(a), as amended, that we are intervening in this proceeding. We have a federal statutory responsibility for protection, mitigation, and enhancement of fish resources and habitats that may be directly affected by the results of this proceeding. We, therefore, intervene for the purpose of becoming a party, and to insure that its interests and those of the public are represented in this proceeding.
Marine Renewable Energy Collaborative Application MRECo filed a preliminary permit application for the Cape Cod Canal and Bourne T idal Test Site Project (FERC Project No. 14775) in July 20 16. MRECo and partners seek to establish a long-term testing site for the advancement of tidal technologies located in the western reach of the Cape Cod Canal in the Town of Bourne. Under the preliminary permit, MRECo proposes to conduct some initial investigations of the hydro logic and natural resources in the canal followed by deployment of a temporary test stand to assess an initial tidal power device. MRECo proposes to use the collected data for a license application to support a long-term testing faci lity with generated electricity supplied to the ACOE Canal Operations Center. The scope of activities to be covered under the preliminary permit include studies for site analysis, engineering design, preliminary vendor and equipment assessment, performance and cost estimates, analysis of environmental effects and resolution of issues to allow MRECo to secure a license for the project. ..~~
The tidal energy project proposed under this application represents novel technology with the potential for adverse effects to marine resources that utilize the Cape Cod Canal, Cape Cod Bay, •
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and Buzzards Bay. i11cludi11g n1arine and diadromous fish and 1narine mamn1als. The prelin1inary pern1it application contains very little detail on the specifics of the proposed project and no analysis of the potential in1pacts to resources u11der our jurisdiction. Sucl1 ai1 analysis would be required as part of a developn1ent aj)plication to construct and operate the project. 'fhe analysis must be sufficient to 1neet the require1nents of NEPA and the Federal Power Act, as \veil as your consultation obligations under the various laws noted below. National Marine Fisheries Service's Trust Resources We have federal statutory responsibility for protection, mitigation, and enhancement of mari11e and anadrotnous fish resources and n1arinc mammals that may be directly affected by t11is project. 'l'hose authorities include the protection of marine and anadro1nous fish and tl1eir habitat under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 USC 1801, ct seq.) and the Fish and Wildlife Coordination Act (16 USC 661, et seq.); marine man11nals pursuant to the Marine l'v1an1111al Protection Act (16 USC 1361, et seq.); and, threatened and et1dangcred species under the Endangered Species Act (16 USC 460, ct seq.). cn1ese same statutory authorities also obligate any Federal agency, including the Comn1ission, to consult \Vith lIS before taking any action that 1nay ad·vcrsely affect our trust resources.
Magnuson-Stevens Fishery Conservation and Management Act "fhe Cape Cod Canal is located at the nortl1east end of Buzzards Bay, a productive estuary providing habitats that suppo1i numerous impo1tant living inarine resources, includi11g federally 1nanaged finfish and shellfish species. The project area has been designated as Essential Fish I-Iabitat (EFI-l) under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) for 26 species including winter flounder (Pseuclopleuronectes americanus), Atlantic cod (Gadus morhua), black seas bass (C'entro1Jristis striata), summer flounder (Paralichthys de;1tatus), scup (Stenoto1nus chrJ'Sops), haddock (J1elanogra1nmus aeglefinus), pollack (Pollachius virens), windowpane flounder (,')cophtha!n1us aquosu,o,), Atnerican plaice (HiJJJJog!ossoicles platessoides), and bluefish (Pon1ato1nus saltatrix). The MSA 1·equires federal agencies to consult with us 011 any action or proposed action authorized, funded. or undertaken by the agency that may adversely affect EFH identified under the MSA. [16 U .S.C. § 1855(b )(2)]. The statue defines EFH as "those waters and substrates 11ecessary to fish spawning. breeding, feeding or growth to maturity." [16 U.S.C. § l853(a)(7) and§ 1802(10)]. Our regulations further define EFI-1 adding, among other things, that '"necessary' means tl1e habitat required to support a sustainable fishery and the 1nanaged species' contribution to a healthy ecosyste1n." (50 C.f .R. §600.10). Adverse effects to EFl-I are defined in our regulations as "any in1pact that reduces the quality or quantity ofEFI·f." -rhe regulatio11s state: An adverse effect 111ay include direct or indirect physical, chemical or biological alterations of tlte water or substrate and any loss of, or injury to, bcnthic organisms, l)rcy species and their l1abitat and other ecosystems con1ponents, if such n1odifications reduce the quality and/or quantity of EFJ-1. Adverse effects to EFH 1nay result from actio11 occurring \Vithin EFI-1 or outside EFH a11d may include site-specific or habitat\Vide intpacts, including individual, cun1ulative, or synergistic consequences of actions [50 C.F.R. 600.SlO(a)]. The regulations at 50 C.F.R. 600.920 set forth the consultation process that will allow us to make a deter1nination of this project's effects on EFI-I and provide conservation recomn1endations on
actions that would adversely affect such habitat pursuant to section 305(b)(4)(A) of the MSA. To initiate an EFH consultation, you must submit an EFl-I assessment to us. Required components of an EFH assessment include "a description of the action; ahd analysis of the potential adverse effects of tl1e action on EFtl and the managed species; the federal agency's conclusions regarding tl1e effects of the action on EFH; and the proposed mitigation, if applicable" [50 C.F.R. §600.920(e)(3)]. An EFH assessment would be necessary for any in-water project construction activities. More inforn1ation on preparing an EFH assessment can be found on our web site at
https ://wwv..1• greatera tlan tic.fisheries. noaa. gov /habi tat. Endangered Species Act There are three species of whales, four species of sea turtles, ru1d two species of fish listed under the Endangered Species Act (ESA) that occur or 11ave the potential to occur in the vicinity of the proposed project. ESA-listed species include: Humpback Whale (Megaptera novaeangliae)(35 FR 18319; Recovery plan; NMFS 1991) North Atlantic Right Whale (Der1nocheiys coriacea)(?3 FR 12024; Recovery plan: NMFS 2005) Fin Whale (Ba/aenopleraphysa/us)(35 FR 18319; Recovery plan: NMFS 2010) Kemp's Ridley Turtle (Lepidochelys kempii)(35 FR 18319; Recovery plan: NMFS el al. 2011) Leatherback Turtle (Dermochelys coriacea)(35 FR 849; Recovery plan: NMFS & USFWS J992) Loggerhead Turtle (Carella carella)(76 FR 58868; Recovery plan: NMFS & USFWS 2008) Green Turtle (Chelonia mydas)(81 FR 20057; Recovery plan: NMFS & USFWS 1991) Atlantic Sttrrgeon (Acipe11ser oxyrinchus o:cyrinchus)(77 FR 5880 and 77 FR 5914) Shortnose Sturgeon (Acipenser brevirosrrun1)(32 FR 4001; Recovery plan: NMFS 1998) Whales Federally endangered North Atlantic right whales (Eubalaena glacialis), fin (Balaenoptera p/1ysalu:-.), and humpback whales (Megaptera novaeanglic1e) are found seasonally in Massachusetts \vaters. The seasonal presence of right whales in Massachusetts waters is thottght to be closely associated to the seasonal presence of dense patches of their preferred copepod prey (primarily ('ct/anus .finn1archus but also Pseudocala11us spp. and Centropages spp.; Pace and Merrick 2008). North Atlantic right whales have been documented in Cape Cod Bay in relatively high nu1nbers in January through May (see l1ttp://W\vw.nefsc.noaa.gov/psb/surveys/). Wl1ile these records show relatively few right whale sightings within the canal, there is precedent for their occurrence. At least 11 separate sightings of right whales in the canal have been reported since 1957 (most recently in May 2015). Based on the best available information, right whales 1nay be present in the Cape Cod Canal from January through May. Humpback whales feed during the spri11g, sum1uer, and fall along the eastern coast of the United States. Sn1all nun1bers of humpback whales may be present in Massachusetts waters year round, though sightings are most frequent from midHMarch tl1fough Nove1uber between 41°N and 43°N, from the Great Soutl1 Cl1a11nel no1ih along tl1e outside of Cape Cod to Stellwagen Bank and Jeffreys Ledge (CET AP 1982) and peak in May and Altgust (Waring et al. 2010). On 1nore rare occasions, humpback wl1ales have also transited the Canal (one humpback whale transited the le11gth of the canal, exiting into Buzzards Bay on June 1, 1998 and December 3, 2008. Fin \Vl1ales found off the eastern United States are centered along the 100 meter isobaths; however, sigl1tings are spread out over shallower and deeper water, \Vith their summer feeding range occun·ing mainly between 41°N
and 51°N. from shore seaward to tl1e 1,829 meters contottr (NMFS 201 O; Kenney and Wi1111 1987; I-lain et al. 1992). 1·hercfore, hun1pback and fine \vhales could be found in the vicinity of the project area from April to November. Additional infonnation on ESA-listed whales can be found at https: // \VWW. greateratlanti c. fisheries.noaa. gov /Pro tected/mmp/ Sea Turlles Four species of federally listed threatened or endangered sea turtles tnay be seasonally found in coastal waters of New England includit1g the project area. These species include the threatened Nortl1west Atlantic Ocean distii1ct population segment (DPS) of loggerhead (Carella caretta) and North Atlantic DPS of green (Chelonia mydas) and the enda11gered I
Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First Street, N.E. Washington, DC 20426
SEP 1 2016
RE: Project No. P-14775, Cape Cod Canal and Bourne Tidal Test Site, COMMENTS ON PRELIMINARY PERMIT Dear Secretary Bose: We have reviewed your July 14, 2016 notice of application (Notice) by the Marine Renewable Energy Collaborative of New England (MRECo) for a preliminary permit to study the feasibility of the Cape Cod Canal and Bourne Tidal Test Site (Project) to be located on the Cape Cod Canal, in the Town of Bourne, in Barnstable County, Massachusetts. Although the scope of the Notice is limited to preliminary planning and does not authorize in-water work, the ultimate project has the potential to impact our trust resources. To the extent that the applicant and/or any federal agency seeks or grants pem1ission to do in-water work, they would be obliged to consult with us under the applicable statute. Accordingly, we anticipate that you and/or any other Federal permitting agency, such as the Army Corps of Engineers (ACOE), will need to perform an analysis of environmental impacts under the National Environmental Policy Act (NEPA). Further, you will need to consult with us pursuant to the statutory authorities outlined below before authorizing installation in the involved waterway. We hereby provide notice pursuant to 18 CFR §385.2 14(a), as amended, that we are intervening in this proceeding. We have a federal statutory responsibility for protection, mitigation, and enhancement of fish resources and habitats that may be directly affected by the results of this proceeding. We, therefore, intervene for the purpose of becoming a party, and to insure that its interests and those of the public are represented in this proceeding.
Marine Renewable Energy Collaborative Application MRECo filed a preliminary permit application for the Cape Cod Canal and Bourne T idal Test Site Project (FERC Project No. 14775) in July 20 16. MRECo and partners seek to establish a long-term testing site for the advancement of tidal technologies located in the western reach of the Cape Cod Canal in the Town of Bourne. Under the preliminary permit, MRECo proposes to conduct some initial investigations of the hydro logic and natural resources in the canal followed by deployment of a temporary test stand to assess an initial tidal power device. MRECo proposes to use the collected data for a license application to support a long-term testing faci lity with generated electricity supplied to the ACOE Canal Operations Center. The scope of activities to be covered under the preliminary permit include studies for site analysis, engineering design, preliminary vendor and equipment assessment, performance and cost estimates, analysis of environmental effects and resolution of issues to allow MRECo to secure a license for the project. ..~~
The tidal energy project proposed under this application represents novel technology with the potential for adverse effects to marine resources that utilize the Cape Cod Canal, Cape Cod Bay, •
i
t
\~
~
"-'tJ...-,.,~~
and Buzzards Bay. i11cludi11g n1arine and diadromous fish and 1narine mamn1als. The prelin1inary pern1it application contains very little detail on the specifics of the proposed project and no analysis of the potential in1pacts to resources u11der our jurisdiction. Sucl1 ai1 analysis would be required as part of a developn1ent aj)plication to construct and operate the project. 'fhe analysis must be sufficient to 1neet the require1nents of NEPA and the Federal Power Act, as \veil as your consultation obligations under the various laws noted below. National Marine Fisheries Service's Trust Resources We have federal statutory responsibility for protection, mitigation, and enhancement of mari11e and anadrotnous fish resources and n1arinc mammals that may be directly affected by t11is project. 'l'hose authorities include the protection of marine and anadro1nous fish and tl1eir habitat under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 USC 1801, ct seq.) and the Fish and Wildlife Coordination Act (16 USC 661, et seq.); marine man11nals pursuant to the Marine l'v1an1111al Protection Act (16 USC 1361, et seq.); and, threatened and et1dangcred species under the Endangered Species Act (16 USC 460, ct seq.). cn1ese same statutory authorities also obligate any Federal agency, including the Comn1ission, to consult \Vith lIS before taking any action that 1nay ad·vcrsely affect our trust resources.
Magnuson-Stevens Fishery Conservation and Management Act "fhe Cape Cod Canal is located at the nortl1east end of Buzzards Bay, a productive estuary providing habitats that suppo1i numerous impo1tant living inarine resources, includi11g federally 1nanaged finfish and shellfish species. The project area has been designated as Essential Fish I-Iabitat (EFI-l) under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) for 26 species including winter flounder (Pseuclopleuronectes americanus), Atlantic cod (Gadus morhua), black seas bass (C'entro1Jristis striata), summer flounder (Paralichthys de;1tatus), scup (Stenoto1nus chrJ'Sops), haddock (J1elanogra1nmus aeglefinus), pollack (Pollachius virens), windowpane flounder (,')cophtha!n1us aquosu,o,), Atnerican plaice (HiJJJJog!ossoicles platessoides), and bluefish (Pon1ato1nus saltatrix). The MSA 1·equires federal agencies to consult with us 011 any action or proposed action authorized, funded. or undertaken by the agency that may adversely affect EFH identified under the MSA. [16 U .S.C. § 1855(b )(2)]. The statue defines EFH as "those waters and substrates 11ecessary to fish spawning. breeding, feeding or growth to maturity." [16 U.S.C. § l853(a)(7) and§ 1802(10)]. Our regulations further define EFI-1 adding, among other things, that '"necessary' means tl1e habitat required to support a sustainable fishery and the 1nanaged species' contribution to a healthy ecosyste1n." (50 C.f .R. §600.10). Adverse effects to EFl-I are defined in our regulations as "any in1pact that reduces the quality or quantity ofEFI·f." -rhe regulatio11s state: An adverse effect 111ay include direct or indirect physical, chemical or biological alterations of tlte water or substrate and any loss of, or injury to, bcnthic organisms, l)rcy species and their l1abitat and other ecosystems con1ponents, if such n1odifications reduce the quality and/or quantity of EFJ-1. Adverse effects to EFH 1nay result from actio11 occurring \Vithin EFI-1 or outside EFH a11d may include site-specific or habitat\Vide intpacts, including individual, cun1ulative, or synergistic consequences of actions [50 C.F.R. 600.SlO(a)]. The regulations at 50 C.F.R. 600.920 set forth the consultation process that will allow us to make a deter1nination of this project's effects on EFI-I and provide conservation recomn1endations on
actions that would adversely affect such habitat pursuant to section 305(b)(4)(A) of the MSA. To initiate an EFH consultation, you must submit an EFl-I assessment to us. Required components of an EFH assessment include "a description of the action; ahd analysis of the potential adverse effects of tl1e action on EFtl and the managed species; the federal agency's conclusions regarding tl1e effects of the action on EFH; and the proposed mitigation, if applicable" [50 C.F.R. §600.920(e)(3)]. An EFH assessment would be necessary for any in-water project construction activities. More inforn1ation on preparing an EFH assessment can be found on our web site at
https ://wwv..1• greatera tlan tic.fisheries. noaa. gov /habi tat. Endangered Species Act There are three species of whales, four species of sea turtles, ru1d two species of fish listed under the Endangered Species Act (ESA) that occur or 11ave the potential to occur in the vicinity of the proposed project. ESA-listed species include: Humpback Whale (Megaptera novaeangliae)(35 FR 18319; Recovery plan; NMFS 1991) North Atlantic Right Whale (Der1nocheiys coriacea)(?3 FR 12024; Recovery plan: NMFS 2005) Fin Whale (Ba/aenopleraphysa/us)(35 FR 18319; Recovery plan: NMFS 2010) Kemp's Ridley Turtle (Lepidochelys kempii)(35 FR 18319; Recovery plan: NMFS el al. 2011) Leatherback Turtle (Dermochelys coriacea)(35 FR 849; Recovery plan: NMFS & USFWS J992) Loggerhead Turtle (Carella carella)(76 FR 58868; Recovery plan: NMFS & USFWS 2008) Green Turtle (Chelonia mydas)(81 FR 20057; Recovery plan: NMFS & USFWS 1991) Atlantic Sttrrgeon (Acipe11ser oxyrinchus o:cyrinchus)(77 FR 5880 and 77 FR 5914) Shortnose Sturgeon (Acipenser brevirosrrun1)(32 FR 4001; Recovery plan: NMFS 1998) Whales Federally endangered North Atlantic right whales (Eubalaena glacialis), fin (Balaenoptera p/1ysalu:-.), and humpback whales (Megaptera novaeanglic1e) are found seasonally in Massachusetts \vaters. The seasonal presence of right whales in Massachusetts waters is thottght to be closely associated to the seasonal presence of dense patches of their preferred copepod prey (primarily ('ct/anus .finn1archus but also Pseudocala11us spp. and Centropages spp.; Pace and Merrick 2008). North Atlantic right whales have been documented in Cape Cod Bay in relatively high nu1nbers in January through May (see l1ttp://W\vw.nefsc.noaa.gov/psb/surveys/). Wl1ile these records show relatively few right whale sightings within the canal, there is precedent for their occurrence. At least 11 separate sightings of right whales in the canal have been reported since 1957 (most recently in May 2015). Based on the best available information, right whales 1nay be present in the Cape Cod Canal from January through May. Humpback whales feed during the spri11g, sum1uer, and fall along the eastern coast of the United States. Sn1all nun1bers of humpback whales may be present in Massachusetts waters year round, though sightings are most frequent from midHMarch tl1fough Nove1uber between 41°N and 43°N, from the Great Soutl1 Cl1a11nel no1ih along tl1e outside of Cape Cod to Stellwagen Bank and Jeffreys Ledge (CET AP 1982) and peak in May and Altgust (Waring et al. 2010). On 1nore rare occasions, humpback wl1ales have also transited the Canal (one humpback whale transited the le11gth of the canal, exiting into Buzzards Bay on June 1, 1998 and December 3, 2008. Fin \Vl1ales found off the eastern United States are centered along the 100 meter isobaths; however, sigl1tings are spread out over shallower and deeper water, \Vith their summer feeding range occun·ing mainly between 41°N
and 51°N. from shore seaward to tl1e 1,829 meters contottr (NMFS 201 O; Kenney and Wi1111 1987; I-lain et al. 1992). 1·hercfore, hun1pback and fine \vhales could be found in the vicinity of the project area from April to November. Additional infonnation on ESA-listed whales can be found at https: // \VWW. greateratlanti c. fisheries.noaa. gov /Pro tected/mmp/ Sea Turlles Four species of federally listed threatened or endangered sea turtles tnay be seasonally found in coastal waters of New England includit1g the project area. These species include the threatened Nortl1west Atlantic Ocean distii1ct population segment (DPS) of loggerhead (Carella caretta) and North Atlantic DPS of green (Chelonia mydas) and the enda11gered I
