The Minerals Management Service (MMS), a bureau of the Department of the Interior, finalized review of a permit application from Cape Wind Associates to construct a controversial wind farm project on a 24- square-mile area on Horseshoe Shoal in Nantucket Sound. Secretary of the Interior Ken Salazar had indicated that he wanted remaining issues resolved in a timely manner, and had set a March 1, 2010, deadline to determine if a resolution of adverse effects among consulting parties could be reached. The ACHP is convening a panel of members to develop formal comments for Secretary Salazar.

While much recent public and media attention had focused on the finding that Nantucket Sound is eligible for listing on the National Register of Historic Places as a Traditional Cultural Property (TCP) as well as for meeting other criteria, there are also a number of other historic resources that would be affected by the project.

The proposal consists of 130 wind turbine generators in a 24-square-mile area on Horseshoe Shoal in Nantucket Sound on the Outer Continental Shelf (OCS). While none of the Section 106 issues are unprecedented in themselves, this complex, high-profile undertaking underscores some challenging policy issues associated with the development of alternative and renewable sources of energy and their potential effects on historic properties and their settings.

The ACHP formally entered the Section 106 review in April 2005, when the Corps of Engineers (Corps) was the lead agency, after receiving expressions of concern questioning Corps’ compliance with the Section 106 regulations. MMS became lead agency after assuming responsibility for alternative energy projects on the OCS as required by the Energy Policy Act of 2005. MMS formally initiated its Section 106 consultation process in 2008, holding consultation meetings in July and September, and formally issuing a Determination of Effect in December 2008. In the finding, MMS identified 29 historic properties that will be adversely affected by the undertaking, including 28 historic structures or districts and one TCP.

Other consulting parties include the Massachusetts State Historic Preservation Officer (SHPO), the National Trust for Historic Preservation, governments and historical commissions from local communities within the viewshed of the proposed project, the Mashpee Wampanoag Tribe, the Wampanoag Tribe of Gay Head (Aquinnah), a coalition of local citizens dedicated to preservation of the natural and historic setting of Nantucket Sound, and others.

The ACHP participated in consultations and issued letters in December 2008 and April and June 2009 advising MMS regarding steps to resolve issues of concern involving the Section 106 process. The major concerns focused on the sufficiency of the effort to identify historic properties, the eligibility of Nantucket Sound as a historic property, the effect on two National Historic Landmarks (NHLs), and the status of consultation with tribes regarding the identification of additional historic properties of religious and cultural significance to them.

Subsequently, MMS conducted site visits with the Mashpee Wampanoag Tribe and the Wampanoag Tribe of Gay Head (Aquinnah) in August 2009. In November 2009, MMS sent a letter to the Massachusetts SHPO with findings regarding the eligibility of, and effects to, additional properties identified by the tribes during those site visits. MMS found two sites eligible and adversely affected by the undertaking. In September 2009 MMS also requested formal comment from the National Park Service (NPS) regarding the nature of the effect of the undertaking on the Nantucket Historic District and the Kennedy Compound, both NHL properties. The NPS issued its response on October 27, 2009, finding that the project will have an indirect but adverse effect on the historic Nantucket Sound settings of both NHLs, resulting from a partial obstruction of long-distance, open-to-the-horizon views historically associated with the resources.

As part of the Section 106 consultation, MMS determined that Nantucket Sound was not eligible for inclusion on the National Register of Historic Places (National Register). The Massachusetts SHPO did not concur with that finding, resulting in MMS requesting a formal determination of eligibility from the Keeper of the National Register (Keeper). On January 4, 2010, the Keeper issued a determination that Nantucket Sound is eligible, under criteria A, B, C, and D, for inclusion on the National Register as an integral, contributing feature of a larger district, whose boundaries have not been precisely defined, as a traditional cultural property, and as a historic and archaeological property associated with (and that has yielded and has the potential to yield) important information about the Native American exploration and settlement of Cape Cod and its associated islands. Subsequently, on January 13, 2010, MMS issued a revised determination of effect for the project, finding that the undertaking will have an adverse effect on Nantucket Sound and also determining that four additional properties of religious and cultural significance to the tribes on Cape Cod and on Martha’s Vineyard will be adversely affected by this undertaking.

On January 13, 2010, Secretary Salazar hosted a consultation meeting for the undertaking, demonstrating the high importance placed upon projects that develop alternative and renewable sources of energy and the commitment of the Department of the Interior to engage with the consulting parties and follow through on the steps required to resolve the Section 106 process. The Secretary proposed a schedule for bringing the Section 106 review to conclusion, requesting that consulting parties and the public submit written comments regarding the effects of the project and suggestions for resolution of adverse effects to MMS by February 12, 2010. He also urged the MMS, the ACHP, and the Massachusetts SHPO to determine by March 1, 2010, if it would be possible to reach an agreement on resolution of adverse effects. Agreement was not possible.

As a follow up to the meeting hosted by the Secretary, the ACHP issued a letter to MMS outlining the next steps in the Section 106 process. The ACHP noted that the draft Memorandum of Agreement currently before the consulting parties predates the steps MMS has taken to gather additional information and needs to be reconsidered in light of revised findings. In order to move expeditiously to reach consensus, MMS and the consulting parties needed to consider the comments provided by the NPS regarding the nature of effects to the NHLs, the Keeper’s determination of eligibility for Nantucket Sound, and MMS’ revised assessment of effects. Secretary Salazar terminated consultation on March 1, 2010. With termination of consultation, the ACHP membership must issue comments to the head of the agency within 45 days of the request. Once the head of the agency considers the ACHP comments and responds to them, MMS may make a final decision on the project.

Because of the complexity of this case, ACHP Chairman John L. Nau, III convened a panel of ACHP members to develop formal comments in a timely manner.

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