Environmental Permitting for Wind Energy Facilities

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Environmental Permitting for Wind Energy
Facilities

• Anntonette Alberti, JD
• Tetra Tech, Inc.

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Agenda

• Preliminary considerations
• Local approvals
• State approvals
• Federal Approvals

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Preliminary Permitting Considerations

• You want to get permits for an economically
  constructable project
• This is most important Permits should provide
  you with the permission to build what will
  ultimately be on your construction drawings
• Ideally, micro-siting will occur before, not
  after, the submittal of permit applications

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Preliminary Permitting Considerations

• Permits will cover all project facilities
• Turbine locations, crane pads, and associated
  work space
• Access roads, public road improvements
• Electrical collection system and project
  transmission lines
• Substations, switch yards and point of
  interconnect
• OM building, visitor kiosks, parking areas
• Construction related facilities, concrete batch
  plants, disposal areas
• Mitigation areas

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Potential Construction Impacts, continued

• Permits often require studies that must begin
  well before permit applications are submitted
• Avian, bat, and other wildlife
• Protected plants and noxious weeds
• Wetlands and water bodies
• Cultural resources
• Noise (Sound)
• Visual Impact and Shadow Flicker
• Telecommunications
• Aviation
• Geotechnical
• Etc.

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Local Approvals

• Most projects will require at least one important
  local approval
• Special use or conditional use permits
• Wind overlay zone approvals
• Site plan approvals
• Building permits
• Electrical permits
• Road use or improvement permits
• Variances
• Some state siting boards are authorized to
  override local objections
• But most must demonstrate that the project would
  be consistent with local ordinances there is no
  reasonable objection to the development of the
  project.

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Local Approvals

• The need for local approvals and the process for
  obtaining approvals varies throughout the
  country.
• In some areas, the local approval process will be
  time-consuming and the project will be subject to
  close scrutiny. In contrast, some municipalities
  require only a building permit.
• The development team should assess which local
  approvals will be required and consult with
  counsel.
• Remember that aside from positive economic
  benefits, most positive benefits of wind farm
  development are global, while most negative
  impacts are local
• Local support is crucial to wind farm development.

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State Approvals

• Required State approvals vary greatly
• Numerous state regulatory programs are likely to
  be triggered by a proposed wind energy project.
  While such programs often mirror, implement
  (through delegated authority), or complement
  similar federal laws, the state version is
  typically more stringent than its federal
  counterpart.

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State Approvals

• Common State approvals
• Little NEPA
• State Siting Statutes
• Endangered Species Act
• Wetland Permits
• Stream Crossing Permits
• State Owned Land
• Historic Preservation
• Stormwater
• Agricultural Protection
• DOT (Roadway) Permitting

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State Approvals

• Jurisdictions with Little NEPA include
• California
• Connecticut
• District of Columbia
• Georgia
• Guam
• Hawaii
• Indiana
• Maryland
• Massachusetts
• Minnesota
• Montana
• Nevada/California - Tahoe
• New Jersey
• New York
• North Carolina
• Puerto Rico
• South Dakota
• Virginia

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State Approvals

• State Energy Facility Siting Commissions/Public
  Utility Commissions
• A single agency with primary jurisdiction over
  wind energy projects.
• A dedicated agency oversees all issues relating
  to the siting of new energy facilities (other
  agencies participate as interested parties).
• Review usually involves detailed adjudicatory
  hearings during which attorneys and expert
  witnesses provide information to a decision
  maker. May include environmental impact review,
  superseding any state little-NEPA program.
• Some states authorize the state siting agency to
  override local decisions.

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Federal Approvals

• National Environmental Policy Act
• NEPA requires federal agencies to publicly study
  the environmental impacts of their proposed
  actions, as well as alternative actions, prior to
  taking an action.
• Gives the public the opportunity to weigh in
  before an action is taken
• Doesnt require the federal government to avoid
  all environmental impacts just that it be open
  and honest about its impacts

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Federal Approvals

• Common actions that trigger NEPA on a wind
  project include
• Federal permit
• Federal land use authorization
• Interconnection to a federally managed
  transmission line
• Federal funding

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Federal Approvals

• Federal Wetland and Waterbody Laws
• Section 10 Construction Permit Required for
  construction w/in navigable waters of the U.S.
  (transmission line crossings, bridges, temporary
  dams, etc.)
• Section 404 Dredge Permit Required for dredging
  or disposal of dredged or fill material in
  navigable waters. This permit is required for any
  construction within federal wetlands.
• Individual or general permits issued on a state,
  regional or national basis
• States issue Section 401 Certification
• Requires Section 7 and Section 106 consultations

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Federal Approvals

• National Pollutant Discharge Elimination System
  (NPDES) permits for stormwater
• Most states and some Indian tribes are authorized
  by the USEPA to implement the NPDES permitting
  program.
• During pre-construction and construction, a NPDES
  Stormwater Permit for Construction Activities is
  required for any ground disturbance in excess of
  one acre.
• Some states require a NPDES Stormwater Permit for
  the operating facility
• Preparation of a Stormwater Pollution Prevention
  Plan is required (SWPPP)

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Federal Approvals

• Endangered Species Act and other Wildlife
  Protection Laws
• ESA Section 9 prohibits unauthorized take of
  endangered wildlife. The ESA regulations extend
  this to threatened animals.
• Section 11(b) makes it a crime to knowingly
  "take" an endangered species without a permit.
• Section 7 prohibits federal agencies from
  approving projects that are likely to jeopardize
  the continued existence of a listed species or
  result in the destruction or adverse modification
  of designated critical habitat.
• If a project requires a federal permit, Section 7
  consultation will occur as part of federal permit
  review.
• Many wind projects do not require any federal
  permits. In those situations, wind developers
  are advised to conduct a voluntary consultation
  with the USFWS under Section 10 to avoid
  penalties for unauthorized take, which range from
  civil fines, criminal penalties (including
  incarceration), and potentially, injunctions
  against operation of the wind project.
• Migratory Bird Treaty Act and Bald and Golden
  Eagle Protection Act also relevant

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Federal Approvals

• National Historic Preservation Act
• Section 106 Consultation identifies possible
  conflicts between historic preservation
  objectives and a proposed federal activity
• NHPA does not require that all cultural resources
  must be preserved. It requires the federal agency
  to consider the effects of proposed on cultural
  resources.
• Typically requires consultation with the State
  Historic Preservation Office (SHPO) and any
  potentially affected Native American tribes

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Federal Approvals

• Federal Aviation Administration Clearances
• Early study potential for conflicts with civilian
  and military airspace and military radar
• The FAA requires a Notice of Proposed
  Construction (NPC) (Form 7460-1) for any
  structure greater than 200 feet above ground
  level
• If there is a Determination of Hazard, you need
  an attorney

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Federal Approvals

• Federal Land Use Authorizations
• Special rules apply to acquiring the right to
  build wind turbines on federally managed lands
  Get consultant who has been through the process
• Bureau of Land Management
• US Forest Service
• Bureau of Reclamation
• Department of Defense
• Bureau of Indian Affairs
• NEPA compliance is required
• Federal Transmission Line Interconnections
• NEPA compliance is required
• Triggers Section 7 and Section 106 consultation

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AWEA Siting Guide!

• http//www.awea.org/sitinghandbook/
• Prepared by Tetra Tech and Nixon Peabody
• Live, regularly updated links to hundreds of
  sources for environmental study and permitting

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Tetra Tech

• Tetra Tech, Inc provides environmental,
  engineering, and construction services to the
  three phases of a wind project development,
  construction, and operation.
• Publicly traded company (TTEK)
• Chosen by Smart Money magazine as one of the 10
  Stocks for the Next 10 Years
• Annual revenues in excess of 1.4 billion
  financial strength to stand behind large wind
  energy projects, including EPC BOP
• Over 8,500 employees in 250 offices world-wide
• Consistently ranked in Engineering News Record as
  one of the top ten

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Tetra Tech

• Acquisition of The Delaney Group a
  well-respected leader in renewable energy
  construction
• Experienced energy staff in all disciplines
• More than 6 million hours without a lost work day
  over past two years
• Injury rate is ¼ the national average
• 70 National Safety Council awards
• Employee health and safety perception rating in
  top 2 nation-wide
• ISO 14001 Certification for all services
• First major full-service firm to earn
  certification with such broad coverage
• ISO 9001 Certification for Wind Engineering
• Documented quality procedures and systems to meet
  global standards and expectations

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Tetra Techs Services for Wind
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Anntonette Alberti, JD518-488-8588Anntonette.Alb
erti_at_tteci.com