Access System Framework for Regulating Offshore Wind Power in State Waters

Abstract

Published research suggests the presence of a large wind resource off the U.S. coast. Although there is considerable interest among wind power developers in the coastal states, few projects have been proposed to date. A major factor constraining resource development is the lack of a regulatory framework to provide access to the ocean space and allocate property rights to the submerged lands where the wind turbines can be installed. Efforts to address this void began in 2005 at the federal level, but it has progressed unevenly and unsuccessfully since that time. At the state level, no coastal state has adopted a comprehensive and detailed regime to regulate, manage, and oversee this new ocean use in state waters. This article examines various approaches taken by coastal states to facilitate existing and emerging ocean uses and recommends a regulatory framework for installing offshore wind turbines in state waters.

Keywords:

• coastal zone regulation
• energy policy
• leasing
• offshore wind power
• permitting
• state waters

Notes

^aThese are general permits requirements that are pertinent to offshore wind power development.

^bSome states require specific permitting under an umbrella coastal act for any facility that might have an impact on the coastal zone.

^cRhode Island follows a different regulatory mechanism through a “Coastal Resource Management Council.”

^aStates listed are examples of the various management options presented.

1. U.S. Department of the Interior, Minerals Management Service, Renewable Energy and Alternate Uses Existing Facilities on the Outer Continental Shelf, 74 Federal Register 19638-19871 (April 29, 2009). The rule establishes a program to grant leases, easements, and rights-of-ways for renewable energy development activities such as the siting and construction of offshore wind farms on the OCS.

2. The findings here may be germane to a wider regulatory framework that considers other marine renewable energy sources such as wave, tidal, and current power. On April 9, 2009, the Department of the Interior and FERC clarified their agencies' respective jurisdictional responsibilities for renewable energy projects in the OCS through a Memorandum of Understanding (MOU), available at http://www.ferc.gov/legal/maj-ord-reg/mou/mou-doi.pdf. Under the MOU, MMS has exclusive jurisdiction over wind and solar, while FERC will share jurisdiction over wave, tidal, and current power.

3. The maximum rated output of a generator under specific conditions designated by the manufacturer. Generator nameplate capacity is usually indicated in units of kilovolt-amperes (kVA) and in kilowatts (kW) for smaller units and in MW for larger units.

4. Environmental impacts include impacts on avian species, marine mammals, fish, and benthic organisms. The most comprehensive studies done to date, however, suggest that these cumulative impacts are unlikely to have population-level effects, particularly if the wind farm is properly located and are likely to be far less than conventional sources of power. See http://www.ens.dk/graphics/Publikationer/Havvindmoeller/havvindmoellebog_nov_2006_skrm.pdf

5. Indeed, Europe has a goal of installing 40,000 MW of offshore wind power by 2020.

6. 43 USC §§1301–1315, available at http://www.mms.gov/aboutmms/pdffiles/submerged.pdf

7. Congress expressly excluded water (but not wind) power for the definition of “natural resources” in the act. 43 USC § 1301(e).

8. 43 USC §§1331–1356a, available at http://www.mms.gov/aboutmms/pdffiles/ocsla.pdf

9. 16 USC § 1456(c)(3)(A).

10. The CZMA, 16 USC §1455b, provides for states to identify coastal waters that are threatened by foreseeable environmental impacts and prepare management measures for such areas.

11. A developer may undertake pre-bidding surveys of potential sites and provide an argument for a site's suitability (e.g., based on bathymetry, distance from shore, access to onshore transmission infrastructure, and environmental impacts among other factors) in the bidding document.

12. See J. Firestone (November 13, 2007) Comments on Pace Report and Public Advocate Filing, submitted before the Public Service Commission of the State of Delaware, wherein he raises concerns with the methodology and consistency of the consultant's analysis on which the “hold” decision was based. See http://depsc.delaware.gov/electric/irp/jfonpace111307.pdf

13. Day-ahead is a forward market while real time is a spot market. These markets are operated by the Regional Transmission Organization (RTO) or Independent Systems Operator (ISO).

14. PJM is the Regional Transmission Organization (RTO) that, among other areas, serves the Mid-Atlantic states. It operates the electric transmission system and electric markets in the region.

15. The Federal Energy Regulatory Commission (FERC) can issue hydropower licenses for a period of up to 50 years.

16. See OSCLA, 43 USC §1334, for administration of leases.

17. State Independent Consultant Report, Delmarva RFP PSC Docket No. 06–241, December 13, 2007, http://depsc.delaware.gov/electric/irp/icreport121307.pdf

18. Directed by the Energy Policy Act of 2005, BLM in 2008 revised the annual rental fee to reflect the fair market value of the right of way.

19. MMS has conducted a synthesis and analysis of existing information on environmental impacts (available at http://www.gomr.mms.gov/PI/PDFImages/ESPIS/4/4260.pdf) and undertaken a Programmatic Environmental Impact Statement (available at http://www.ocsenergy.anl.gov). MMS issued final rules on April 29, 2009 (see Note 1) and will provide further guidance on the implementation of that rule prior to it being effective on June 29, 2009. For more information see MMS website on Regulatory Development and Policy at http://www.mms.gov/offshore/AlternativeEnergy/RegulatoryInformation.htm

20. For example, New Jersey is not encouraging development close to Cape May, which is an important migratory bird flyway.

21. MMS issued the Cape Wind Final Environmental Impact Statement (FEIS) in January 2009. See www.mms.gov/offshore/AlternativeEnergy/CapeWindfeis.htm

22. Benthic organisms are bottom-dwelling organisms in an aquatic environment.

23. For a partial effort in this regard, see the MMS PEIS.