Drawing the Line: Permitting and Regulatory Processes for U.S. Offshore Wind Development in Federal Waters
How do offshore wind projects get approved, what agencies are involved, and how do federal, state, and local regulatory responsibilities differ?
After offshore wind developers win lease areas in auctions, they must jump many regulatory hurdles before they can break ground on a wind farm. For projects in federal waters, federal governments heavily regulate offshore wind projects to mitigate disruption to stakeholders and the environment as much as possible. State governments also serve an important role in wind farms located in federal waters, but not to the extent that they would if the farms were completely in state waters. Not to be underestimated, regional and local agencies and boards frequently play vital roles in the review and approval of these projects and have the power to cause significant project delays if issues arise.
Thus, with many federal, state, and local regulations, agencies, and procedures coming into play, the permitting process for offshore wind development projects is often arduous and complex. This article breaks down how the U.S. federal, state, and local governments are involved in making these offshore wind projects a reality and how their regulatory responsibilities relate and differ.
Federal Government: The Authorizer
In the U.S., most future offshore wind farms will be built in federal waters, which begin three nautical miles from shore, where state waters end. Accordingly, the federal government determines the locations of future wind farms through assessments of wind resources, environmental impact, and space use conflicts, among many other considerations. Based on the size and characteristics of these wind energy areas, the range of wind energy capacity for a given project is determined at a very early stage.
After offshore wind energy areas are defined, auctions are held by the Bureau of Ocean Energy Management (BOEM). During this process, development companies bid on commercial lease areas to win the rights to develop them.
Like any kind of infrastructure project, offshore wind development projects must undergo lengthy planning and permitting process to ensure that projects have minimal disruption to stakeholders and the environment. So, after developers secure their lease areas, the permitting process begins.
The Federal Permitting Process
The federal permitting process is arduous, requiring a multitude of deliverables, careful consideration of environmental policies, numerous permits, and consultations with a variety of regulatory agencies for different aspects of development.
Prior to 2005, the U.S. Army Corps of Engineers (USACE) held federal jurisdiction over offshore leasing. The Energy Policy Act of 2005 passed this responsibility to BOEM, but USACE was still involved in the process under Section 10 of the Rivers and Harbors Act (RHA) and Section 404 of the Clean Water Act. Although today BOEM leads federal permitting, as of June 2021, BOEM and USACE collaborate to review offshore wind development projects on the Outer Continental Shelf. This gives BOEM access to USACE technical expertise for wind development regulation in the Atlantic (e.g., resources for reviewing NEPA documents and COPs). According to BOEM, this collaboration will help propel renewable energy generation towards President Biden’s goal of 30 GW by 2030.
Below is a timeline of the federal process required for the installation of an offshore wind farm:
BOEM requires approval of a developer’s Site Assessment Plan (SAP), Construction and Operations Plan (COP), Facility and Design Report (FDR), and Fabrication and Installation Report (FIR) before initiating project construction.
The SAP includes a plan for the collection of environmental and metocean data, such as wind speed and directionality, weather, and subsea conditions. After BOEM approves the SAP, the developer conducts site assessment activities and surveys and begins to draft the COP.
The COP outlines the construction and operational phases of the project and details implementation and construction logistics. After BOEM approves the COP, they release a Notice of Intent (NOI) to prepare a draft Environmental Impact Statement (EIS) on the COP.
BOEM solicits public input on the SAP, COP, and draft EIS through various meetings, hearings, and comment periods. Consulting the public is important because it reduces the likelihood of space-use conflicts causing a late-stage disruption to the development process.
Additionally, before construction, developers must obtain a subsea cables permit from USACE, a navigational light permit from the U.S. Coast Guard (USCG), and air quality and pollution prevention permits from the EPA and USACE.
After BOEM releases a final EIS and approves the COP, the developer submits the FDR and FIR — which outline offshore wind projects’ technical designs and equipment fabrication and installation. Once the FDR and FIR are approved by BOEM, the developer has received federal authority to begin construction of the wind farm.
Ensuring Compliance: Federal Environmental Policies and Procedures
During the federal permitting process, developers must ensure that they follow all federal policies and regulations. Because of this, developers often consult with various other government agencies to ensure compliance with these agencies’ regulations, such as the Magnuson-Stevens Fishery Conservation and Management Act, the Marine Mammal Protection Act (MMPA), the National Historic Preservation Act, and the Endangered Species Act (ESA). Additionally, developers are required to consult with the Department of Defense (DoD) and Federal Aviation Administration (FAA) regarding project siting to ensure that offshore wind development does not affect domestic military activity or air navigation and safety (these required consultations impacted the speed of offshore wind development in California due to opposition from DoD). Developers must also receive authorization for “the incidental take or harassment of animals” from NOAA Fisheries and U.S. Fish and Wildlife Service (USFWS) under multiple laws (e.g., MMPA, ESA, and Bald and Golden Eagle Protection Act).
Below is a list of relevant federal environmental policies by which developers must abide for development to occur:
· National Environmental Policy Act (NEPA)
· Endangered Species Act (ESA)
· Migratory Birds Treaty Act (MBTA)
· Bald and Golden Eagle Protection Act (BGEPA)
· Magnuson-Stevens Act (MSA)
· Marine Mammal Protection Act (MMPA)
· National Historic Preservation Act (NHPA)
· Clean Air Act
· Coastal Zone Management Act
· Rivers and Harbors Act of 1899
· Clean Water Act
State Government: The Catalyst
While the federal government has large control over offshore wind development through lease sales and extensive regulation, state governments are also important in that they drive state offshore wind energy procurement goals. State legislatures or governors, through executive order, create laws that set these goals and initiate offshore wind development. Additionally, Renewable Portfolio Standards (RPSs) in some states require utilities to generate a certain percentage of their electricity through renewables. RPSs essentially guarantee utilities’ cooperation in offshore wind development. 23 of the 30 coastal states have RPSs; those that do not are Alaska and six Southeastern states.
To encourage offshore wind development, state government agencies release a request for proposals (RFP), inviting developers to submit bids for the opportunity to develop offshore wind projects of predetermined nameplate capacities to supply energy for state electrical grids. The state then selects a developer based on criteria that include the developer’s experience in the offshore wind sector and their farm lifecycle cost estimates.
Ensuring Compliance: State Permitting and Regulatory Processes
Although a large part of the offshore wind permitting process falls under the federal government’s jurisdiction, developers are also required to navigate state permitting processes. Projects must abide by state laws when components are within state boundaries (on land or within three nautical miles from shore). Despite each state having different processes and regulatory bodies involved in the permitting process, many state policies have similarities.
Below is an example of what Massachusetts’ permitting and regulatory processes look like for offshore wind development projects.
Developers can participate in and win competitive bids for state contracts to sell their offshore wind energy output to the Massachusetts public utilities under a Massachusetts RFP. The Department of Public Utilities must approve the offshore wind energy contracts between developers and the Commonwealth’s electric distribution companies before moving forward.
The Massachusetts Environmental Policy Act (MEPA) requires that projects’ environmental impacts are reviewed by the MA Executive Office of Energy and Environmental Affairs (EEA). To initiate MEPA review, developers submit an Environmental Notification Form (ENF) to EEA. In return, developers receive a MEPA Certificate on their ENF, which outlines the scope of the Draft Environmental Impact Report (DEIR) they are required to submit. A public comment period is held and following it, developers prepare their final Environmental Impact Report (FEIR). The Office of the Secretary of EEA reviews this before issuing a final MEPA Certificate which enables developers to pursue state and local permits.
Massachusetts offshore wind projects also are required to receive approval from the MA Energy Facilities Siting Board (EFSB) for subsea transmission lines and electric grid interconnection. Residents, businesses, and landowners along the preferred and alternative onshore cable routes and near the proposed substation are required to be notified of projects and are given opportunities to comment to the EFSB. EFSB may then approve the developer’s transmission cables and connection to the grid.
Although the state permitting and regulatory processes for offshore wind development are usually relatively intensive, in comparison to offshore wind development projects that occur completely in state waters, state roles in the permitting process are relatively limited when projects are in federal waters.
Local Government: Small but Mighty
The regions or localities in which offshore wind development occurs determine what regulations come into play. Every region and local government nationwide has their own regulatory policies and bodies, so most offshore wind projects will involve regional and local processes that are unique to the areas they are in. However, regardless of project location, reviews by regional land use planning and economic development boards, as well as conservation commissions in the area, are required. Local and regional jurisdiction depends on where developers plan their onshore cable route, substation, grid interconnection infrastructure, and subsea transmission cables.
Despite seemingly not having as much power as state and federal agencies over projects, local agencies have the potential to stall or turn down projects completely, even after they are approved by all state and federal regulatory processes. Despite this, there is often an incentive for local regulatory bodies and governments to support offshore wind development projects as they typically benefit communities by creating many good-paying jobs for local workers.
Takeaways
By establishing wind energy areas and issuing requests for proposals, the federal government initiates the development of offshore wind projects. Meanwhile, state governments set offshore wind energy procurement goals and create Renewable Portfolio Standards to ensure demand for the electricity generated.
The often complex and extensive process of offshore wind project permitting makes it especially important for developers to have permitting and policy experts on board to propel projects forward. Without diligent and sometimes costly compliance with regulations from even the smallest regulatory entities, these massive projects would be halted in their tracks.
Given the lengthy approval process for offshore wind development projects, some may argue that the process is overburdensome, while others believe there should be more regulation in place. Although the permitting process could always be better coordinated and streamlined between U.S. federal, state, and local governments, all existing regulations serve a purpose. Whether the purpose is to allow ample stakeholder and public input or ensure that projects will not jeopardize the health or safety of the surrounding communities and environment, all regulations and policies in place are reflective of the goals of U.S. democracy: to attempt to protect everyone and hear their voices regardless of their power or beliefs.
Interested in more U.S. offshore wind insights? Check out our Medium profile.
