Transcript The Law of Wind - Stoel Rives LLP Attorneys at Law

Permitting & Policies
of Wind on the Water
– Great Lakes –
Presented By
Katherine A. Roek
STOEL RIVES LLP
June 16, 2009
To order any of these books, please contact:
Katherine A. Roek * 612.373.8820 [email protected] * www.stoel.com
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Why are we discussing offshore?
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Overview
• Offshore vs. Onshore permitting issues
• Federal jurisdictional waters vs. State
jurisdictional waters
• Lessons from East Coast
• State of offshore wind development in
the Great Lakes
• What are other states doing?
• What does the future hold?
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Permitting Issues
ONSHORE
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Land interest acquisition
Local zoning
Avian impacts
Other wildlife/
endangered species
Wetlands
Aviation
Visual impacts
Noise/human health
consequences
OFFSHORE
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Marine mammals
Fish
Navigation
Existing uses (commercial
fisheries, crabbing)
Electromagnetic field
Creation of new environments /
adaptive management
Water quality
Ease of removal
Military radar
Jones Act
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Siting Authority – Federal Waters
Outer Continental Shelf (OCS) under the
jurisdiction of:
• Minerals Management Service (MMS)
• Federal Energy Regulatory Commission (FERC)
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Siting Authority – Great Lakes
Each state – out to center of Lake
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Siting Authority – State Waters
• Great Lakes
– each state out to center of lake
• Atlantic/Pacific coasts
– up to 3 nautical miles offshore
• Gulf of Mexico (Texas, Florida)
– 9 nautical miles offshore
– Texas: General Land Office
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Offshore Wind Development –
Federal Laws
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National Environmental Policy Act
Submerged Lands Act of 1953
Coastal Zone Management Act
Endangered Species Act
Clean Water Act
Others:
– Fish & Wildlife Coordination Act
– Rivers & Harbors Act
– Migratory Bird Treaty Act
– Marine Mammals Protection Act
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Offshore Wind Development –
State Laws
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State environmental policy act (if applicable)
Great Lakes submerged lands
Water quality
Endangered species / wildlife protection
Commercial fishing / crabbing
Coastal zone management
Onshore issues (cables, waterfront development)
Marine safety
Water rights (?)
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Federal – MMS Leasing
Regulations
April 22, 2009
• MMS issued final regulations for granting
competitive / non-competitive commercial
leases, limited leases, rights-of-way and
rights-of-use and easements on the OCS.
– Finalized proposed regs that were issued
July 9, 2008
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Federal – MMS Leasing
Regulations
• Types of leases:
– Commercial
• Energy development
• ~30 years
• Competitively bid
– Limited
• Data gathering
• ~5 years
• BUT: limited power sale permitted
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Federal – MMS Leasing
Regulations
• Regulations also specify:
– Required Financial Assurance
– Rental Amounts and Operating Fees
– Environmental Review
• Changes from proposed rules include:
– Allowance of limited power production
during limited lease
– Addition of multiple-factor auction format
with respect to bidding process
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Interaction between MMS & FERC
April 9, 2009
• FERC-MMS signed a Memorandum of
Understanding.
– FERC will issue licenses for hydro projects
on OCS
– MMS will issues leases, easements, and ROW
on OCS
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Great Lakes Permitting /
Siting of Offshore Wind
• U.S. Army Corps of Engineers will be
lead federal permitting agency
– NEPA review will be triggered through permit
• Section 10 of Rivers & Harbors Act
• Section 404 of Clean Water Act
– EIS vs. EA? Depends on size, location…
– Programmatic assessments?
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Great Lakes Permitting /
Siting of Offshore Wind, con’t
• Other agencies:
– State environmental regulatory agencies
• e.g. Michigan Department of Environmental
Quality for placement of structures in the Great
Lakes – joint application process already in place
– U.S. Coast Guard
• Guidance on Offshore Renewable Energy Installations
(OCS) – will adapt to Great Lakes (Corps, not MMS)
– State coastal management agency
– Fish and wildlife (state and federal)
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State Initiatives
• New Jersey
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Blue Ribbon Panel to Evaluate Offshore Wind
Ocean Environmental Assessment
$12M in grants
Selected Preferred Developer
Created Energy Master Plan:
• 1,000 MW by 2012; 3,000 MW by 2020
– Offshore Wind Renewable Energy Certificates
• All load-serving entities required to obtain ORECs
from offshore wind, based on their percentage of
retail sales in NJ
• OREC price to be set by BPU; 20-year term
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State Initiatives, con’t
• Rhode Island
– Ocean Zoning
• Special Area Management Plan
– Selected Preferred Developer
– June 2009: Legislation proposed that would
require state’s largest electricity supplier to
purchase energy from offshore wind farm
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State Initiatives, con’t
• Michigan
– May 2008: Offshore Wind Permitting Dry-Run
• Wisconsin
– January 2009: Public Service Commission –
prepared Feasibility Report. Looked at:
• Engineering and Economic Issues
• Human Environment Issues
• Legal Issues
• Community Involvement Issues
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Current U.S. Projects
• Cape Wind (130 turbines, 420 MW,
Nantucket)
– January 16, 2009: Final
EIS (2,800-pages)
issued by MMS. Awaiting
lease from MMS.
– Spring 2009:
Received consistency
determination, composite
approval from state.
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SOURCE: GreenPeace USA
Current U.S. Projects
• Bluewater Wind (450 MW,
Delaware)
– July 31, 2008: PPA with Delmarva
Power approved by DE Public
Service Commission.
– Evaluating wind resources,
preparing environmental and
permitting documents for
submission to MMS.
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Current U.S. Projects
• Deepwater Wind
– January 2009: agreement with RI to
construct two-phased project: 5-8 turbines in
state waters (2012); utility-scale (~400 MW)
in federal waters (TBD).
– October 2008: selected by NJ Board of
Public Utilities to build 350 MW wind farm in
federal waters. Includes $19 million
in state grant monies (2013).
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Current U.S. Projects
• Wind Energy Systems Technology (WEST)
– 2005: Signed lease with TX GLO for 150
MW project.
– Meteorological tower off of Galveston has
compiled almost two years of data.
• Great Lakes Energy Development Task
Force (off coast of Cuyahoga County, OH –
Lake Erie)
– Has begun resource assessment.
– Spring 2009: feasibility study.
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Current U.S. Projects
• Long Island Power Authority / Con Edison
– Joint FS for interconnection of 350 MW
project 13 miles offshore of Long Island, with
the ability to extend up to 700 MW.
– Interconnect request filed w/ NY ISO.
– April 2009: Wind collaborative of state,
municipal entities interested in supporting /
purchasing power from the project.
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Land-based
Shallow
Water
Offshore
Wind
Technology
Estimated
US Resource
Comercially
Proven
Technology
Transitional
Depth
Deepwater
Floating
Demonstration
Phase
60m-900m
1533-GW
No exclusions assumed for resource estimates
0m-20m
430-GW
30m-60m
541-GW
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Resources
• www.mms.gov/offshore/alternativeenergy/
regulatoryinformation.htm
• www.awea.org/faq/wwt_offshore.html
• www.psc.wi.gov
• www.michigan.gov/dleg
• www.ri.gov
• www.nj.gov
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Thank you!
Katherine A. Roek
(612) 373-8820
[email protected]
www.stoel.com
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