To Members of the Rhode Island Coastal Resources Management Council:

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1 February 4, 2013 Via Electronic Mail to: and Rhode Island Coastal Resources Management Council Oliver H. Stedman Government Center 4808 Tower Hill Road Wakefield, RI Re: CRMC File # To Members of the Rhode Island Coastal Resources Management Council: Conservation Law Foundation ( CLF ) is pleased to submit these comments in support of Deepwater Wind Block Island, LLC s ( DWW ) proposed Construction and Operation Plan ( COP ) and the issuance of a Category B Assent for a 30-megawatt (MW) offshore wind farm southeast of Block Island, Rhode Island. The five 6-MW wind turbine generators are proposed to be built within the Renewable Energy Zone, which was established by the Ocean Special Area Management Plan ( SAMP ) in October of The related construction of a submarine cable interconnecting the five wind turbine generators ( the Inter-Array Cable ); the 34.5 kilovolt transmission cable from the wind turbines to Block Island ( Export Cable ); and the alternating current (AC) bi-directional submarine transmission cable that will run 21.8 miles from Block Island to Narragansett are necessary components to make the project operational and to offset the high energy costs faced by Block Island residents and the carbon pollution associated with fossil-fuel derived energy. CLF has been actively engaged for several years in the public process to select the most suitable area for offshore wind development in Rhode waters, most notably through the development of the SAMP a comprehensive ocean management plan. CLF submitted dozens of written comments and testified at numerous public hearings and workshops as the SAMP was developed and the renewable energy zone selected and refined. Throughout this lengthy public process most of CLF s concerns were substantively addressed. For example, CLF pushed for the creation of a Habitat Advisory Board (HAB) a body that would have the opportunity to review applications for proposed projects within the area identified in the SAMP as the Renewable Energy Zone or within the adjacent federal waters studied in the SAMP. As a result of the creation of this body through the SAMP, the HAB has been able to meet with DWW to discuss the science, modeling and conclusions underpinning the COP. Technical and science-trained staff within CLF, Save The Bay, The Nature Conservancy and Audubon Society of Rhode Island all have seats on the HAB along with scientists from the University of Rhode Island. As a result of the development of the SAMP, Rhode Island now has some of the most progressive coastal and

2 marine spatial planning tools and policies in the country to guide the development of offshore wind projects in both state and federal waters. The Renewable Energy Zone was not pre-selected and then later refined by public comment. Rather, the Renewable Energy Zone in state waters was identified after 3 years of public deliberation among commercial and recreational fishermen, environmental advocacy organizations, educational institutions, scientists, Native American tribes, and other important ocean users. The CRMC considered and incorporated new data and testimony into its decision-making process on a regular basis. After consideration of wind speeds, and numerous potential impacts, including to cultural resources, seafloor habitat, marine mammals, fish, birds, other marine flora and fauna, user groups, shipping traffic schemes, and aesthetic and noise impacts, CRMC identified a Renewable Energy Zone approximately 1.2 miles wide and extending from a location east to southwest of Block Island. This zone was established as an area that could accommodate a wind energy facility in compliance with the standards and policies of SAMP. The establishment of the Renewable Energy Zone was also in furtherance of the Rhode Island General Laws, , which recognizes the need for the Town of New Shoreham to enhance its own electric reliability and environmental quality (currently relying on expensive dieselfired generators to power the Island). According to the Intergovernmental Panel on Climate Change s (IPCC) Fourth Assessment on Climate Change (2007) 1, the atmospheric concentrations of CO2 in 2005 exceeded by far the natural range of CO2 in the atmosphere over the last 650,000 years. Since the 2007 IPCC report, we have done little to curb the emissions that cause climate change, but our confidence in our projections of future climate change has increased. U.S. average temperature has increased by about 1.5 F since record keeping began in 1895; more than 80% of this increase has occurred since The most recent decade was the nation s warmest on record. U.S. temperatures are expected to continue to rise. (See National Climate Assessment and Development Advisory Committee Draft Climate Assessment Report Released for Public Review - January Global increases in CO2 concentrations are due primarily to fossil fuel use. Lower emissions mean less future warming and less severe impacts; higher emissions would mean more warming and more severe impacts. Some changes we are already beginning to see; like changes in marine and freshwater 1 The IPCC s 5 th Assessment on Climate Change is slated to be released in

3 ecosystems, changes in weather patterns, the increase in significant storm events, and severe erosion along our coasts. Without significant reductions in the burning of fossil fuels by 2020, we will be unable to prevent the impacts to our ecological systems, our communities and our economy that will most certainly come with climate change. The need to dramatically reduce CO2 through every means possible, including by promoting energy efficiency and properly sited renewable energy projects cannot be overstated. While the DWW project proposed for state waters is relatively small, it is a first among many steps that need to be taken to transition from a fossil-fuel driven economy to one based on clean, renewable power. That being said, the balance between siting renewable energy projects and protecting vulnerable species and critical habitat is an important balance to strike and to maintain. CLF believes that the appropriate balance has been struck with the DWW project. The potential impacts to avian species, fish species, view shed, benthic resources and cultural resources have been thoroughly examined and minimized to the greatest extent possible. The project has a proposed footprint of only.35 acres on the seafloor. It is proposed to be sited at the very edge of the state s jurisdictional waters within the renewable energy zone (nearly 3 miles from land) minimizing impacts to the view shed on Block Island, and is designed so that there is a.5 mile distance between each turbine so as to minimize impacts on commercial fishing and recreational vessel use. Extensive research, conducted in support of the SAMP by the State of Rhode Island and site-specific surveys conducted by DWW have been completed. Also, DWW s commitment to perform additional data gathering post-construction is important to support the adaptive management envisioned by the SAMP. DWW has committed, for example, to a five-year study, which will collect two years of base-line preconstruction data and three years of post-construction data on impacts to finfish populations that use the habitat in the area of the wind farm. This study will be used to support further evaluation of both the construction and operational effects on the local finfish community. CLF has several specific comments and concerns that should be addressed in the Environmental Report: North Atlantic right whales With respect to providing additional protection for the critically endangered North Atlantic right whales, DWW has agreed to change its construction schedule so that no pile driving will occur during the month of April within the Renewable Energy Zone. This change alone provides a significant increase in protection for the North Atlantic right whale by reducing the likelihood of the co-occurrence of impact pile driving and right whale activity in the area. Changing the construction schedule to avoid April, -3-

4 while feasible, was both logistically and technically challenging for a number of reasons. DWW s commitment to work with CLF to avoid this month is reflective of the company s continued engagement on issues of concern with respect to this project and the project site. Existing sightings data suggests that the end of February and the month of March are also timeframes when pile driving should be avoided. CLF s understanding is that DWW is not planning any pile driving activity during these periods, but CLF believes the Environmental Report (ER) should reflect a prohibition on pile driving from November 1 through April 30. The Environmental Assessment for the Rhode Island/ Massachusetts Wind Energy Area contains a seasonal prohibition on all pile driving activities (e.g., pneumatic, hydraulic, or vibratory installation of foundation piles) from November 1 through April 30. It is important that the Environmental Report and the construction plans in the Rhode Island project area be at least as protective as the federal waters restrictions when it comes to North Atlantic right whales as the jurisdictional line between state and federal waters matters little to the right whales. Pile driving should be allowed during the other months except that in early May DWW should take additional precautionary actions. The collection of new data regarding right whale presence in the area is currently underway, and as that data becomes available there may be additional time frames that suggest further caution. CLF agrees that most of the proposed mitigation to protect the North Atlantic right whale and other marine mammals during pile driving is adequate. Specifically: (1) CLF agrees with the establishment of the 500-meter minimum exclusion zones for impact pile driving of the wind turbine generator (WTG) foundations (ER p ), and supports DWW s proposal to engage in field verification of the safety and exclusion zones during the first day of impact pile driving. Field verification is proposed to be used to verify the adequacy of the established safety zone. CLF strongly encourages DWW to expand and monitor the expanded exclusion zones without prior approval from NOAA if the field verification data suggests that the exclusion zone should be enlarged to a radius greater than 500-meters to avoid Level B harassment, but CLF supports DWW waiting for approval for implementation of a revised exclusion zone if the field verification data suggests that the zone can be reduced to less than 500-meters (especially where right whales are concerned). (2) For pile driving, DWW should use noise attenuation and source level reduction technology to reduce sound during meteorological tower construction. The developer should use the best commercially available technology, such as bubble curtains, cushion blocks, temporary noise attenuation pile design, vibratory pile drivers and/or press-in pile drivers, in order to reduce the pile driver source levels and horizontal propagation, unless such technology is prohibitively expensive for the project. -4-

5 (3) With respect to visibility, DWW s proposed mitigation measures are clear and adequate. CLF agrees that pile driving should not take place at night, but CLF further recommends that DWW should not start driving a pile unless, under normal circumstances, completion of the pile can be achieved during daylight hours. If the exclusion zone is obscured by fog, no pile-driving activity, including ramp-up, should be initiated until the exclusion zone is visible for a minimum of 30 minutes. CLF recognizes that the Environmental Report (ER) at p states that a minimum of two qualified NOAA fisheries approved protected species observers (PSO) will be stationed aboard each noise producing vessel monitoring a 360 degree field of vision, and that at least two additional PSOs will be stationed aboard an observation vessel dedicated to patrolling the exclusion zone, but CLF recommends that DWW should commit to additional monitoring. Specifically, in addition to having the 2 additional PSOs monitoring the exclusion zone in an observation vessel (a good approach, which CLF supports), CLF strongly recommends that DWW provide a minimum of 4 experienced Marine Mammal Observers (MMOs) (2 on/2 off with each observer covering 180 degrees from bow to stern) at each pile driving site to effectively maintain a steady visual watch during the course of the pile driving activity and to provide for effective monitoring in all directions around the sound source. If pile driving is to take place during the above-mentioned precautionary period (early May), CLF suggests that DWW should commit to conducting either aerial monitoring or real-time passive acoustic monitoring sufficient to detect aggregations of foraging right whales during pile-driving. With respect to vessel collisions (ER, p ), DWW should be clear that they intend to abide by (1) the minimum 500-yard distance and avoidance procedures for the North Atlantic right whale as set forth in 50 CFR (c) and (2) a vessel speed restriction of 10 knots or less on any sized vessel associated with the project and operating in or transiting to or from the project site area during the period of November 1-April 30. CLF would encourage DWW to commit to a 2-week post construction real-time monitoring period to collect data on the full range of WTG operational conditions for underwater noise. This kind of realtime monitoring could provide information relevant not only to marine mammals, but also to our understanding of how underwater noise may impact certain fish species. These recommendations for the North Atlantic right whale are specific to the Block Island project. Projects involving more construction activity than anticipated here may require or necessitate different mitigation. -5-

6 Wave Height and Erosion Extremes Relying on the SAMP, DWW predicts the probable wave height extremes to range from between 21.3 feet and 29.5 feet. The recorded wave heights during Super Storm Sandy were in excess of 40 feet at the Block Island buoy. DWW should ensure that the construction of the five wind turbines are built to withstand a 500-year storm and not to 100-year storm scenarios. Moreover, it is not particularly informative to examine the history of storm landfall by category. Super Storm Sandy was not categorized as a hurricane, but was comparable to a category 3 or 4 hurricane in many ways. Should significant and severe storm events in the Northwest Atlantic become more frequent, the project should be designed with the foresight that climate science allows. In this same respect, as Rhode Island is already experiencing sea level rise and land mass subsidence, major avulsive events, contributing to significant erosion are more likely. Such an event could contribute to the erosion of Crescent Beach and Narragansett Town Beach, and therefore, the COP should provide a contingency for exposure of the cables at the Crescent Beach and Narragansett Town Beach landing should an extreme erosion event occur and expose the cable. (See ER, p. 4-6). Cable Landings Alternatives DWW has proposed two cable landing alternatives: (1) conducting a long-distance horizontal directional drill from the shore lot to a temporary offshore cofferdam (Long-Distance HDD); or (2) conducting a short-distance HDD from an excavated trench located at mean high water (MHW) from which a jet plow would be launched directly from the beach. The primary difference between these two approaches is that the short-distance HDD will not require the installation of an offshore cofferdam. CLF prefers the short-distance HDD to the long-distance HDD because there is no need to construct an offshore cofferdam so the noise impacts associated with the short-distance HDD. Electromagnetic Fields The studies relied upon by DWW suggest that many fish species have an acute sensitivity to electromagnetic fields (EMF), but that little is known about how fish are affected by EMF. ER, p That being said, the EMF level predicted at the seafloor for this project is less than half the theoretical detection level of many of the organisms believed to be sensitive to EMF. The EMF modeling relied upon by DWW assumed no sheathing around the cable, but was unclear as to whether the modeling assumed that the cable had been laid at the target depth of 6 feet. This point should be clarified in the ER and in the modeling if necessary. The ER suggests that the target depth of 6 feet may not always be achieved depending on substrate conditions. Would the EMF level predicted as the seafloor still be less -6-

7 than half of the detection level if a depth of less than 4 feet is achieved? DWW should address this issue. Commerical and Recreational Fishing The commercial and recreational fishing industries that are supported by Rhode Island and Block Island Sound are important and valuable industries to the State of Rhode Island. Section of the ER speaks to the potential impacts to commercial and recreational fishing that may be associated with the installation of the cable along the proposed cable route. It is critically important that DWW effectively and accurately communicate to the public and with commercial and recreational fishing users when areas are open and closed to fishing as a result of construction activities. CLF recommends that in addition to communicating through notices to mariners, the DWW project website, and the fisheries liaison, that the Rhode Island Department of Environmental Management (RIDEM) and the Coastal Resources Management Council (CRMC) also post relevant information about access to fishing along the cable route during construction. This same recommendation would apply during construction of the WTGs. During construction of the WTGs, commercial and recreational fishermen will be displaced for a week period, and there are anticipated impacts to important commercial ground fish, pelagic and invertebrate species during construction. While some of the impacts will be permanent (i.e., the loss of.35 acres of habitat), most of the impacts are projected to be temporary and not significant. With respect to the effects of underwater noise on important fish species, ongoing data collection is important to CRMC s ability to adaptively manage the area. The fish trawl survey and the underwater noise study post-construction will provide important information. CRMC should require any additional studies and data collection necessary to support effective adaptive management of the area. Glacial Moraines The glacial moraine topography in the project site area is very important. It provides vertical relief on the seafloor, thereby increasing the surface area available for biologic colonization. The SAMP recognizes that moraine edges are important to commercial and recreational fishermen. The location of these moraines was mapped as part of the SAMP process and the moraines were further assessed by DWW during site-specific surveys in the project area. The SAMP identifies glacial moraines in state waters as Areas of Particular Concern (APC). See SAMP (3)(iii). CLF commented at great length about the need to protect glacial moraines from avoidable impact. The SAMP presumptively excludes development in glacial moraines. Because the proposed project is sited within the Renewable Energy Zone; neither the project, nor any portion of the project is proposed -7-

8 to be sited within the glacial moraine areas identified through the SAMP. The ER, however, should speak directly to whether all impact to the glacial moraines can be avoided during construction. If there will be some impact, the ER should discuss mitigation and the practicable alternatives considered to avoid those impacts. The SAMP requires that offshore wind projects shall not have a significant adverse impact on the natural resources or existing human uses of the Rhode Island coastal zone, as described in the Ocean SAMP. See SAMP (3). CLF believes that given the relatively minor footprint of this project (.35 acres), the spacing between WTGs (0.5 miles), the thoughtful consideration given to various landfall alternatives and the measures proposed to minimize the short-term impacts associated with bringing the cable ashore, and the measures proposed to mitigate long-term impacts during construction and decommissioning, that the proposed project will not have any significant adverse impact on the natural resources or human uses of the Rhode Island coastal zone. As such, with the additions we recommended above, CLF urges the CRMC to approve the COP, issue a Category B Assent, and set Rhode Island on the path of a clean energy future. Very truly yours, Tricia K. Jedele Vice President & Director of the Rhode Island Advocacy Center -8-