Barnstable judge validates Cape Wind's MEPA Certificate
BY PETER B. BRACE INDEPENDENT WRITER

Cape Wind Associates' certificate issued by Massachusetts Secretary of Energy & Environmental Affairs Ian Bowles is valid, ruled Barnstable Superior Court Judge Robert Kane last Friday. Judge Kane's decision means Cape Wind can keep working toward building 130 3.6-megawatt wind turbines in 24-square-mile area on Horseshoe Shoal in Nantucket Sound.

Kane permitted motions by Cape Wind and the state to dismiss four of five co mplaints fi led by th e B arn stable and the Alliance to Protect Nantucket Sound.

"We're very pleased," Cape Wind communications director Mark Rodgers. "We were cautiously optimistic that this is what the judge would find, bu t we 're ce rtainly pl eased that that was the decision the judge would make."

"It allows us to continue to move forward in the permitting process," Rodgers added. "It means that state's MEPA certificate has been upheld and has withstood legal challenges, so we can continue to move forward."

Barnstable and the Alliance charged that the Massachusetts Environmental Policy Act certificate and environmental impact statement issued by the state did not sufficiently deal with the project's impacts, especially endangered species issues. Their lawsuit also questioned the adequacy and jurisdiction of the state's review of the project under MEPA.

Judge Kane is holding off on ruling on the fifth motion dealing with findings made by the Massachusetts Division of Fish and Wildlife decision.

Alliance to Protect Nantucket Sound president Glenn Wattley is disappointed with Judge Kane's decision, but downplayed the ruling, saying that he and the Alliance are still finding pl enty of ho les in Ca pe Wi nd's plan and the MEPA certificate.

"It's not that big of a win like some other reports have made it out to be," said Wattley. "We essentially filed prematurely. We showed up a little too early and the reason we did that is it was not 100 percent clear in the law. We were hoping it would be dismissed and that we could go back and re-file."

Wattley added that the Alliance is considering further action concerning Cape Wind's MEPA certificate and is continuing to build its case against the Federal Department of Energy Minerals Management Service's (MMS) Draft Environmental Impact Statement released on Jan. 14.

"Probably," said Wattley. "We're not sure yet when the appropriate time is. If not a lot has changed, then there's a good possibility we could go down that path again."

"At the federal level, we saw more and more problems for Cape Wind there [such as] the whole business about the DEIS as being a sound document."

Wattley pointed to the Division of Fish and Wildlife's negative comments about missing studies and data, a negative comment letter filed by the Environmental Protection Agency on missing points and information, U.S. Coast Guard safety concerns, that the MMS has yet to hold consultation with local Native American tribes and that the MMS has yet to issue its regulations for renewable energy installation on the for Outer Continental Shelf. And also that the Federal Aviation Administration, which interview air traffic controllers at the airports on Nantucket, Martha's Vineyard and Barnstable last week, is still working on its radar deflection ha zard re port.

"I see a lot having to happen before things are clear on the federal side," said Wattley. "This project and environmental impact statement have a lot problems and once people started looking at it and once the hearings started, a lot of good information came to light."

But from Cape Wind's perspective, the Minerals Management Service's issuance of its DEIS on Cape Wind equals fairs winds ahead for Cape Wind. Among the 27 resource categories that the MMS said would be affected, almost all were rated with negligible or minor operational impacts.

"On the federal side, we're expecting the MMS to issue a final EIS this fall," said Rodgers. Rodgers said Cape Wind hopes to have all of its permits by the end of this year and to be operational by 2012. I