More than Cape Wind affected by historic label

Park Service move sets a precedent

By Beth Daley
Globe Staff / January 6, 2010

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The National Park Service’s determination that Nantucket Sound is eligible for listing as a national historic site could have far-reaching implications for more than the proposed wind farm in the scenic coastal waters: Cape Cod fishermen, ferries, and even builders of some shorefront properties may be affected.

Ian Bowles, the state’s secretary of energy and environmental affairs, said yesterday that the state was examining its legal options to have the designation rescinded, because it would do “profound’’ harm to future activities in the sound.

The 560-square-mile area is the first swath of ocean to be determined eligible for listing on the National Register of Historic Places. That decision Monday, based on the sound’s cultural and spiritual significance for two Wampanoag tribes, means the 130-turbine Cape Wind project and all future activities in the Sound that require a federal permit will now have to consult with the Native Americans and try to minimize the impact of projects on the protected area. That consultation will be required even if the sound is never actually formally listed on the register.

“This means the ferries that run back and forth, the planes overhead, aquaculture projects’’ all would have to enter a consultation process that is “open-ended and ill-defined,’’ said Bowles. “All coastal states will have to consider carefully now the implications of this precedent.’’

Meanwhile, Interior Secretary Ken Salazar said yesterday that Cape Wind, tribal and Massachusetts officials, and others will meet next Wednesday in Washington to hammer out a compromise on the issue, considered to be the last major hurdle before construction of the wind farm can start. Even if no agreement is reached by March 1, Salazar said, he will ensure that the nine-year permitting process for the Cape Wind project is soon concluded.

The nullification of an eligibility determination for the Historic Register is rare, in part because the criteria for listing can be broad, according to several cultural resource specialists familiar with register designations. However, they said, a political decision could be made to shift or shrink the boundaries.

Yesterday, reaction to the determination was mixed. Developers said it injects deep uncertainty into future projects not only in the sound, but on land nearby.

“If you consider this is about [Native Americans’ view of the sound], what is to prevent someone saying a seven-story building on land doesn’t obstruct the view?’’ said David Begelfer, chief executive of NAIOP Massachusetts, a commercial real estate development association. Native Americans say they need an unobstructed view of the sound to carry out their spiritual sun greetings and that ancestors are probably buried on the seafloor, which was once exposed land.

However, the Alliance to Protect Nantucket Sound, the main opposition group to the project, said the eligibility designation would not dramatically affect future development. Fishing and ferry service have coexisted amicably with tribes for years, and the main issue is only the visual intrusion of the wind farm, said an alliance official.

“The state’s own historic commission and now the National Park Service’’ has determined eligibility, said Audra Parker of the alliance. “It’s really steamrolling the tribes and their valid concerns’’ to try to rescind designation.

Attempts to reach Wampanoag officials were unsuccessful.

Tom King, a consultant who has written extensively on historic preservation, said a designation “actually simplifies the process’’ when obtaining permits for development projects.

When a new project is proposed, he said, developers will not have to guess whether it is taking place near some important historical area; they will know. For example, if such a designation had already been made in Nantucket Sound, Cape Wind developers would have known early on they needed to deal with it.

It is unlikely Nantucket Sound will be formally listed on the Historic Register, because top state officials who oppose the listing, including Governor Deval Patrick, would probably be able to block it. Yet the mere determination of eligibility triggers the need for consultations with the tribes, according to King and the Park Service. A consultation does not have to result in any compromise, but it often does, usually by altering or moving a project or compensating for any harm some other way.

“Consultation is not sending a letter and saying we’ll ignore you,’’ said King. “It is a matter of actually paying attention to what concerns are and seeking to reach an agreement.’’

If Salazar is not able to reach a compromise on Cape Wind next Wednesday, he may declare the consultation process terminated. If he does so, the Advisory Council on Historic Preservation, a federal agency that has been involved in the issue, will probably hold a public hearing before submitting comments to him within 45 days.

Salazar then has the authority to make a final decision on what, if anything, to do about minimizing the wind farm’s impact on Nantucket Sound.

The Salazar meeting comes as the Mashpee Wampanoag tribe attempts to have the Interior Department recognize tribally owned land in Middleborough as a reservation, in hope of building a casino on it.