SESSION A: OFFSHORE WIND ENERGY: PARTNERSHIPS, DEVELOPMENT AND US

JONES ACT MAY 6, 2019, 3:45 PM – 5:00 PM

Learn about legal issues surrounding transmission lines in federal, state, local waters; U.S. Jones Act application to offshore wind farms, and the role of the federal regulators; and Coast Guard and Customs and Border Protection responsible for ensuring compliance with these laws.

Moderator/Panelist: Antoine Peiffer, Senior Manager, Global Supply Chain and Development, Principle Power Panelists: Meagan Keiser, Legal Counsel, Equinor Marjorie Krumholz, Partner, Thompson Coburn, LLP Joshua M. Kaplowitz, U.S. Department of the Interior, Office of the Solicitor, Division of Mineral Resources, Branch of Offshore Resources

BOEM Permitting of Offshore Wind:A Legal Primer

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Joshua KaplowitzOffice of the SolicitorDivision of Mineral ResourcesU.S. Department of the Interior

Outer Continental Shelf Lands Act (OCSLA)▪ 43 USC § 1332(3): “the outer continental shelf is a vital national resource reserve held

by the federal government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs "

▪ 43 USC § 1337(p): “the secretary… may grant a lease, easement, or right-of-way on the outer continental shelf for activities not otherwise authorized in this subchapter… if those activities… produce or support production, transportation, or transmission of energy from sources other than oil and gas[.]”

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Alaska OCS Atlantic OCSGulf of Mexico OCSPacific OCS

Outer Continental Shelf Lands Act (OCSLA)

OCSLA Authority▪ 8(p)(3): leases must be issued competitively unless BOEM finds no competitive

interest

▪ 8(p)(4) lists factors secretary must “provide for” in issuing leases and approving activities on them, including:

• Safety

• Environmental protection

• “Fair return” to U.S. Government

• Consideration of other uses of the OCS, including navigation and fisheries

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Regulatory Authority

▪ 30 CFR part 585 – finalized April 2009

▪ Largely modeled on offshore oil and gas regulations

▪ Streamlining rulemaking underway

• Best guess: proposed rule in mid-2019, final rule in early 2020

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OCS Renewable Energy Authorization Process

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Planning and Leasing▪ Lease issuance by BOEM, which

only authorizes plan submittal

▪ National Environmental Policy Act (NEPA) review

• Environmental Assessment (EA)

• Does NOT analyze full buildout of lease – see Fisheries Survival Fund v. Zinke, No. 16-cv-2409 (D.D.C. Sept. 30, 2018)

▪ BOEM must consult pursuant to:• The Endangered Species Act (ESA)

• The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)

• National Historic Preservation Act (NHPA)

• Coastal Zone Management Act (CZMA)

▪ Informal coordination

• Department of Defense, U.S. Coast Guard (USCG), Intergovernmental Task Force

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Site Characterization Surveys

▪ Lessees submit surveys plans for review

▪ BOEM does not approve survey work

▪ Typically BOEM not required to consult

▪ Informal coordination

• National Marine Fisheries Service (NMFS)

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▪ Other permits or authorizations

• Marine Mammal Protection Act (MMPA) Incidental Take Authorization (ITA) issued by NMFS

• Nationwide permit for structures secured to the sea-floor (geotechnical surveys); issued by U.S. Army Corps of Engineers (USACE)

Site Assessment Facilities▪ Lessees submits a site assessment

plan for BOEM approval

▪ Construction and installation of a meteorological tower and/or buoys

▪ NEPA review

• Categorical exclusion review or determination of adequacy

▪ Informal coordination

• NMFS, USCG, Intergovernmental Task Force

▪ Other permits or authorizations• USCG approval of Private Aids to Navigation (PATON)

• OCS air permit from Environmental Protection Agency (EPA)

• Nationwide permit for structures secured to sea-floor (geotechnical surveys); issued by USACE

• Bureau of Safety and Environmental Enforcement (BSEE) approval of Oil Spill Response Plan (met tower)

• Federal Aviation Administration (FAA) Notice of Proposed Construction or Alteration (met tower –within 12 NM)

• NMFS issuance of ITA (pile-driving)

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Construction and Operations▪ Lessees submits a construction and

operations plan for BOEM approval

▪ NEPA review

• Environmental Impact Statement (EIS)

▪ BOEM required to consult pursuant to: ESA, MSFCMA, NHPA, CZMA

▪ Informal coordination

• DOD, BSEE, USCG, Intergovernmental Task Force

▪ Other permits or authorizations

• USCG approval of PATON

• EPA issuance of OCS air permit

• USACE issuance of a Clean Water Act, Section 404 permit; River and Harbors Act, Section 10 permit

• MMPA ITA issued by NMFS

• FAA Notice of Proposed Construction or Alteration (w/in 12 NM)

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Federal Permitting Streamlining▪ Fixing America's Surface Transportation Act (Dec 2015) (“Fast-41”)

• www.permits.performance.gov/about/fast-41

▪ Executive Order 13807 Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects (Aug 2017)

• www.energy.gov/nepa/downloads/eo-13807-establishing-discipline-and-accountability-environmental-review-and

▪ Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807 (April 2018)

• www.whitehouse.gov/wp-content/uploads/2018/04/mou-one-federal-decision-m-18-13-part-2-1.pdf

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Project Design Envelope▪ Lessee may propose a range of design parameters for approval; BOEM analyzes

“maximum-case scenario.”

▪ Example: monopile and gravity foundations

▪ Why?• Preserves flexibility at engineering/installation phase (long timelines + rapid technology

development)

• Minimizes risk of permitting delays

▪ January 2018 draft guidance: www.boem.gov/draft-design-envelope-guidance/

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“Steel in the Water”▪ After COP approval, lessee submits Facility Design Report (FDR) and Facility

Installation Report (FIR) that have been reviewed by third-party Certified Verification Agent (CVA)

▪ BOEM has 60 days to object to reports

▪ Prior to construction, lessee must provide Federal Government with decommissioning financial assurance (based on cost estimate for complete removal of facility)

▪ Decommissioning required within two years of lease termination

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Office of Renewable Energy Programs

Leasing• 15 commercial wind energy leases in the Atlantic

• Upcoming lease sale in NY

Site Assessment Plans (SAP) • 7 approved (MA, RI, VA, MD, MA, NJ, NY)

Construction and Operations Plans (COP)• 3 processing (Vineyard Wind, Deepwater Wind South Fork and Bay State Wind)

• 8 expected within the year

▪ Planning activities continue off Hawaii, California, Carolina and the New York Bight

▪ Call for Information and Nominations offshore Californiaissued on October 19, 2018

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Atlantic OCS Renewable Energy: Projects in the Pipeline

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Year Project Company

2027 Kitty Hawk

2026 EDF Renewables

2025 Empire Wind

2025 Dominion Commercial Lease

2023 Skipjack Windfarm

2023 Revolution Wind

2022 U.S. Wind (MD)

2022 Bay State Wind

2022 Ocean Wind

2022 South Fork

2021 Vineyard Wind

2020 Coastal Virginia Offshore Wind

Siting Challenges

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• Commercial and recreational fishing

• Fisheries Survival Fund v. Zinke

• Viewshed/visual impact

• Navigation and safety

• Wildlife

• Cape Wind litigation