Legal Review and Permitting Requirements WIND ENERGY DEVELOPMENT AND OPERATIONS

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Legal Review andPermitting RequirementsWIND
ENERGY DEVELOPMENT AND OPERATIONS

• Presentation by M. Carol Bambery
• Association Counsel

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WIND ENERGYThe Fasted Growing Commercial
Energy Source in the World

• Currently, U.S. wind-energy facilities are
  land-based, but several coastal states are
  exploring development.

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Major Steps in Wind Project Development

• Planning
• Permitting
• Financing
• Power purchases and transmission agreements
• Construction
• Operation
• Decommissioning

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PERMITTING

• Wind projects are required to obtain a permit
  from one or more governmental agencies.
• A wind project typically can be permitted within
  12 months.
• Permitting entities at the federal, state, and
  local levels may have jurisdiction over a wind
  development. Usually, all three levels of
  government will be involved regardless of where
  the facility is sited.
• We will look at three situations
• Permitting a facility on state or private land
• Permitting a facility on federal land
• Permitting a facility offshore

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State/Private Lands

• One or more state agencies may have siting or
  review responsibilities for wind developments.
• State authorities may include
• Natural resource and environmental protection
  agencies
• State historic preservation offices
• Industrial development and regulation agencies
• Public utility commissions

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Local Laws and Regulations

• In many states the primary permitting
  jurisdiction for wind farms is the local planning
  commission, zoning board, city council or county
  board of supervisors. Typically, these local
  jurisdictional entities regulate through zoning
  ordinances. In addition to local zoning
  approval, permitting under local jurisdiction may
  require a developer to obtain some form of local
  grading or building permit to ensure compliance
  with structural, mechanical and electrical codes.

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Specific Permitting Considerations

• Considerations that need to be addressed in
  permitting wind project whether they are large
  wind farms which sell power to utilities or
  single turbines to provide power to a single
  user
• Land use
• Noise
• Birds and other biological resources
• Visual resources
• Soil erosion and water quality
• Public health and safety
• Cultural and fossil resources
• Solid and hazardous wastes
• Air quality and climate

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Land Use

• State and local land use planners will consider
  whether a permit is compatible with existing and
  planned adjacent uses, whether it will change the
  overall character of the surrounding area,
  disrupt established communities , or physically
  intrude upon the landscape. Even if the proposed
  project is inconsistent or incompatible with
  existing land use plans, it may still be approved
  if the permitting agency grants a variance.
• All agencies involved in reviewing and making
  land use decision on projects MUST coordinate and
  communicate with each other throughout the
  project. Essential that staffs work together
  during the permitting process so that any
  conditions or requirements are consistent and are
  monitored throughout the lifetime of the project.

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NOISE

• Noise is defined, for purpose of permitting
  projects, as any unwanted sound. Due to the wide
  variation in the levels of individual tolerance
  for noise, there is no completely satisfactory
  way to measure the subjective effects of noise,
  or of the corresponding reactions of annoyance
  and dissatisfaction.
• Useful for comparison purposes to provide sound
  levels associated with common activities and
  situations. For example
• Civil defense siren 140 decibels Pain threshold
• Ambulance siren 90 decibels Very
  loud
• Freeway 70 decibels
  Loud
• Kitchen with garbage disposal running disposal
  running - Loud
• Vacuum cleaner 60 decibels
  Moderately Loud
• Soft whisper 5 ft. 30 decibels
  Quiet
• Under most conditions, modern turbines are quiet,
  generating primarily broad-band sound levels no
  higher than those of a moderately quiet room at
  distances of 750 to 1000 feet.

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Visual Considerations

• Potential for visual resource impacts is
  considered as part of the evaluation of land use
  compatibility.
• The degree to which aesthetic impacts may become
  an issue during the project permitting process is
  a function of the value people place on the
  visual quality of the project setting.
• Elements which may influence visual impacts
  include the spacing, design and uniformity of the
  turbines, markings or lighting, roads built on
  slopes and service buildings.

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Soil Erosion and Water Quality

• Land disturbance from construction and operation
  of the facility can remove vegetation and loosen
  soil particles, allowing them to be swept away by
  wind or water.
• Wind-induced erosion can increase fine
  particulate matter in the air which can adversely
  impact human health and reduce visibility.
• Water-induced erosion results in sedimentation
  which degrades water quality.
• Spills resulting from project construction and
  operation activities, such as refueling heavy
  equipment, may also impact water quality.

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Where to learn more about controlling erosion and
runoff

• Local conservation districts, the Natural
  Resource Conservation Service, and the
  appropriate city or county can provide guidance
  on development of a storm water management plan,
  calculating runoff flows and selecting control
  practices to ensure water quality is protected.
• Local planning and permitting departments should
  have information on floodplain locations and
  expected flood levels and frequency.
• The Federal Emergency Management Agency (FEMA)
  show foot by foot contours for most river/creek
  systems in U. S. These maps should be available
  at local land use planning agencies.
• With appropriate precautions, the impact of wind
  projects on soil erosion and water quality should
  be minimal at most sites.

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Solid and Hazardous Wastes

• Waste materials will be generated during
  construction as well as operation of the wind
  farm.
• If turbines are not well-designed and maintained,
  fluid leaks (gearbox oils, hydraulic and
  insulating fluids) at the turbine may occur,
  resulting in fluids not only dripping directly
  downward by flying off the tips of the blades and
  contaminating the ground below.
• Some fluids may become hazardous wastes when
  spilled on the ground.
• Must dispose of solid and hazardous wastes at a
  licensed disposal facility.
• Hazardous Materials Management Plan should be
  drawn up to address avoidance, handling, disposal
  and cleanup.
• Some permits have banned on-site repairs of
  construction and maintenance vehicles. Major
  turbine repairs may be required to be done
  off-site.

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Air quality and climate

• Wind generation is a non-combustion process
  relying on direct conversion of mechanical energy
  into electrical energy. Unlike conventional
  fossil-fired electric power plants there are no
  emissions from the generation process.
• Federal, state and local air quality plans are
  concerned with particulate matter less than 10
  microns in diameter, known as PM10.
• Production of particulate matter is the only air
  quality impact likely to occur in conjunction
  with a wind farm, and is primarily associated
  with construction activities.
• No negative long-term air quality impacts are
  likely to occur.

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Federal Lands

• The Bureau of Land Management (BLM) Lands in the
  Western U.S. are being inventoried for
  high-potential wind-energy resources.

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Federal Lands

• U.S. Fish and Wildlife Service has developed
  wind-energy development guidelines.
• Applications for right-of-ways for wind-energy
  facilities must be made under the Federal Land
  Policy and Management Act (FLPMA).
• FLPMA grants 3 types of wind-energy projects
• Site specific wind energy testing and monitoring
  right of way grant for individual towers with a
  term
• Wind energy site testing and monitoring right of
  way grant for 3 years that may be renewed
• Long-term development grants usually in the range
  of 30 35 years which is the useful life of the
  energy facility
• Holder of the site testing and monitoring right
  of way grant establishes no right to development
  and is required to submit a separate application
  to BLM for analysis, review and decision.

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Freedom of Information issues

• Wind inventory data collected and held by the
  right of way grant hold is proprietary
  information and will be protected by the Privacy
  Act.
• The information may be withheld under the Freedom
  of Information Act.
• However, detailed wind data will be required to
  be provided to the BLM at the time an amended
  right of way application for development is
  submitted, to support the environmental analysis
  and review of the proposed development.
• This data becomes public information for analysis
  and decision making purposes related to the
  processing of the amended right of way
  application for the development project.

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Rent for right of way

• Rent for commercial wind energy development right
  of way grant will consist of two components
• An annual minimum rent which runs around 2,365
  per megawatt on public land and is based on the
  total anticipated installed capacity of the
  project, a capacity factor of 30, a royalty of
  3 and an average purchase price of 3 centers per
  kilowatt hour and
• An annual production rent once the project is in
  commercial production.

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Federal and State Permitting

• For onshore wind projects on federal public
  lands, the Department of the Interior, through
  the Bureau of Land Management, has created a
  comprehensive regulatory program under the
  Federal Land Policy and Management Act, but no
  similarly comprehensive federal statutory or
  regulatory scheme exists for offshore wind energy
  development at this time, but one may be
  developed soon.
• The Minerals Management Service, a part of the
  U. S. Department of the Interior, in accordance
  with the recently passed Federal Energy Bill, now
  has authority to grant easements and to charge
  lease payments from commercial offshore wind
  projects and will take over as the lead federal
  agency.
• Also, the Army Corps of Engineers has
  undertaken a role in the federal permitting
  process, although some have questioned the Corps
  statutory authority to issue permits for wind
  energy facilities. States may also play a role
  in the permitting process in some.

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OFFSHORE WIND ENERGY

• NEW FOCUS Moving away from land-based wind
  energy and looking to coastal projects in
  offshore waters

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• An offshore wind project is more than the
  platform and turbine. It includes cables,
  landfall of cable, substation, grid,
  interconnection and shipping, dredging and
  associated construction activity. Also, ongoing
  operation and maintenance includes the transport
  of employees by ship and helicopter and
  occasional hardware retrofits.

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OFFSHORE WIND ENERGY
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Coastal Water Jurisdiction

• Strict federal and state laws govern offshore
  wind-farm development. Public concerns will also
  have to be allayed. In addition to any
  permitting requirements unique to offshore wind
  farm installations, the normal regulatory
  procedure for land-based wind farm
  interconnection to utility grids must then be
  followed.
• First, mark out the various bodies of water the
  project activities can affect and then delineate
  the activities these projects represent such as
  the necessary permanent structures and various
  effects related to the operation of the project.
• Bodies of waters are classified by
• (1) Navigability
• Navigable Waters all waters that are subject
  to the ebb and flow of the tide, including
  interstate wetlands, lakes, rivers, streams, and
  similar water bodies.
• (2) Distance from shore usually defined as the
  mean high tide line

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Coastal Water Jurisdiction Distance from Shore

• State Waters individual coastal states have
  jurisdiction over coastal waters that extend from
  the shoreline to 3 nautical miles
• U.S. Territorial Seas waters extending 3 miles
  seaward to 12 nautical miles

• Federal Waters waters that extend from the
  3-mile line to the 200-mile economic exclusive
  zone boundary
• Exclusive Economic Zone 12-200 miles
• International Waters beyond 200 miles

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Major Issues AffectingCoastal Jurisdiction

• Coastal Zone Management Act
• Leasing Submerged Lands
• Navigable Waters

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Coastal Zone Management Act

• Federal activities affecting land or water
  resources located in the coastal zone must be
  consistent with the adjacent states federally
  approved state coastal management plan.
• National Oceanic and Atmospheric Administrations
  Office (NOAA) administers the Act. 34 coastal
  states have federally approved state coastal
  management plans managing over 99 of the
  nations shoreline.
• If state declares activity inconsistent, the
  state can disallow the activity.
• The Secretary of Commerce can override the
  states objection.

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Leasing Submerged lands

• Coastal states own submerged lands up to 3
  nautical miles from the shoreline and can lease
  state-owned submerged lands for a fee.
• Parties wishing to lease lands beyond the 3-mile
  mark must lease from the Department of the
  Interior.

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Navigable Waters

• State and federal governments share jurisdiction
  over coastal waters. There may also be an
  overlap of authority
• U.S. Army Corps of Engineers has regulatory
  jurisdiction over U.S. navigable waters, Section
  10, federal Rivers and Harbors Act..
• Individual coastal states also have jurisdiction
  over activities within the 3-mile zone.
• Minerals Management Service, Department of
  Interior, lead federal agency.
• .

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Federal Regulatory Agencies

• U.S. Army Corps of Engineers
• U.S. Environmental Protection Agency (EPA)
• National Marine Fisheries Service
• Minerals Management Service (MMS)
• U.S. Fish and Wildlife Service

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NEPA

• National Environmental Policy Act (NEPA). NEPAs
  intent is to have all federal agencies consider
  environmental issues and potential impacts by
  opening the permitting decision making process to
  all stakeholders, including state and local
  agencies, public, private organizations, and
  tribal governments. An offshore wind farm will
  require federal permits so the NEPA process will
  be triggered.
• First, the federal actions environmental impact
  must be assessed. If there is a significant
  impact, an Environmental Impact Statement (EIS)
  is needed. All environmental statutes and
  regulations are taken into consideration during
  the preparation of an EIS. These include

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Federal Laws and Federal Regulatory Agencies

• Rivers and Harbors Act
• Outer Continental Shelf Lands Act
• Submerged Lands Act of 1953
• Coastal Zone Management Act
• Clean Water Act
• Magnuson Fishery Conservation and Management Act
• Fish and Wildlife Coordination Act
• Migratory Bird Treaty Act
• Endangered Species Act
• Federal Aviation Administration

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State authority over offshore structures

• In addition to any federal requirements, any
  party interested in developing an offshore
  structure in a particular state needs to comply
  with that states statutes and regulations.

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Example North Carolina

• North Carolina Environmental Policy Act of 1971
  (NCEPA)
• Coastal Area Management Act
• North Carolina Dredge and Fill Act
• North Carolina Public Utilities Act
• Submerged Land Leases
• North Carolina Archives and History Act

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State Regulatory Agencies

• States play a significant role. For example,
  under the Coastal Zone Management Act, state
  programs
• designate land and water conservation measure
• address sources of water pollution

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Looking at Oil and Gas Permitting

• Offshore wind farms share similarities to oil/gas
  platforms
• Are energy-related activities
• Require the installation of
• structures in U.S. navigable waters
• Are potentially visible from the
• shoreline
• May affect the costal zone

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SUMMARY

• There is still much to be learned about the
  economic, social, and environmental impacts of
  wind energy.
• Wind energy, especially wind energy produced by
  using off-shore platforms, may become a viable
  energy source for the future.
• Thanks goes to the National Wind Coordinating
  Committee for fine handbook, Permitting of Wind
  Energy Facilities and to North Carolinas
  Offshore Wind Approval Process guidelines.

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Questions?