Secretary of the Interior Salazar signed a record of decision on April 28, 2010 approving a commercial wind lease for the Cape Wind Energy Project, the nation's first deep water wind project. The Mineral Management Service (MMS) lease will include mitigation measures to ensure that potential adverse effects are minimized while allowing renewable energy development to proceed. The Secretary described his decision as initiating "a new direction in our Nation's energy future with the ushering in of America's first offshore wind energy facility."
With his decision, the Secretary also released a 14-page letter responding to the Advisory Council on Historic Preservation's (ACHP) recommendation to disapprove the Project because of adverse effects on historic properties protected by the National Historic Preservation Act (NHPA), including, the Kennedy Compound, Nantucket Sound and traditional cultural properties of two Indian Tribes. Nantucket Sound, the Secretary noted, "is a working water landscape, with daily visual and physical impacts related to ongoing activities . . .; it is not an untouched landscape."
The MMS lease will require a number of mitigation measures "to reduce" visual impacts of the Project on historic properties located on Cape Cod, Nantucket Island and Martha's Vineyard. With regard to potential impacts, if any, on archaeological resources on the seabed, the lease will require 100% seafloor surveys out to 1,000 feet from any disturbance, in addition to a standard "chance finds" clause to address any resources encountered during lease activities.
Secretary Salazar acknowledged the belief of two Indian Tribes that impacts to cultural resources of concern to the Tribes "cannot be properly mitigated." Recognizing that mitigation measures identified for the Project "are not directly responsive to concerns raised by the Tribes," the Secretary offered to explore other measures that MMS may require in the lease if "the Tribes are amenable to pursing Project mitigation actions . . . in furtherance of the preservation of the cultural and historic interests of the Tribes."
Rejecting recommendations to put a large landscape out of bounds for energy development based on the NHPA, Secretary Salazar emphasized that a number of other laws give the Department of the Interior substantive authority to protect significant cultural and natural landscapes, including authorities to set aside large areas as national parks, wildlife sanctuaries, wilderness areas, national conservation areas and national monuments. Processes the Department follows in designating such large landscapes ensure robust consideration of the public interest, including positive and negative tradeoffs of permanently setting aside land for cultural or other concerns. "In contrast, NHPA provides procedural, not substantive protection. As the ACHP has noted, an agency is not precluded from making a decision that will have impacts to eligible historic or cultural resources. The intent of the NHPA is to ensure that Federal agencies take into account the effects of Federal decisions on historic properties. . . . The Department, however, as the decisionmaking authority that must balance broad, national public interest priorities in all of its decisions, is bound to take the ACHP's comments seriously, but is not legally bound to follow the ACHP's recommendations or conclusions."
Secretary Salazar's decision sends an important message: the Administration is capable of supporting renewable energy development with mitigation measures, as appropriate, that enable projects essential to the nation's energy future to go forward. At the same time, the Secretary's lengthy response to the ACHP shows the importance of documenting for the administrative record an agency's careful consideration of potential project impacts on historic properties, its reasons for adopting or rejecting measures to mitigate project impacts and identification of other public benefits that would be gained or lost by an agency's decision regarding mitigation measures for a project.