Offshore Wind Energy Development: Legal
February 28, 2023
Framework
Adam VannWind Energy: Offshore Permitting
March 8, 2021
Technological advancement, financial incentives, and policy concerns have driven a global
Technological advancement, financial incentives, and policy concerns have driven a global
Legislative Attorney
expansion in the development of renewable energy resources. Wind energy, in particular, is often expansion in the development of renewable energy resources. Wind energy, in particular, is often
Adam Vann
cited as one of the fastest-growing commercial energy sources in the world. Currently, most U.S.
cited as one of the fastest-growing commercial energy sources in the world. Currently, most U.S.
Legislative Attorney
wind energy facilities are based on land. wind energy facilities are based on land.
There is just one commercial offshore wind facility in
U.S. waters: the Block Island Wind Farm, located approximately three miles off the coast of Rhode Island. However, a number of other However, a number of offshore projects have been offshore projects have been
proposed and are at proposed and are at
various stages of the various stages of the
federal permittingregulatory and commercial process. process.
The United States
The United States
has the authority tomay permit and regulate offshore wind energy development within the permit and regulate offshore wind energy development within the
offshore areas under areas under
its jurisdiction. The federal government and coastal states each have roles in the permitting process, and those roles depend its jurisdiction. The federal government and coastal states each have roles in the permitting process, and those roles depend
on whether the project is located in state or federal waters. Section 388 of the Energy Policy Act of 2005 (EPAct; P.L. 109-on whether the project is located in state or federal waters. Section 388 of the Energy Policy Act of 2005 (EPAct; P.L. 109-
58) amended the Outer Continental Shelf Lands Act (OCSLA) to address previous uncertainties regarding offshore wind 58) amended the Outer Continental Shelf Lands Act (OCSLA) to address previous uncertainties regarding offshore wind
projects. Under the EPAct, the Secretary of the Interior has ultimate authority over offshore wind energy development. The projects. Under the EPAct, the Secretary of the Interior has ultimate authority over offshore wind energy development. The
statutory authority granted by Section 388 is administered by the Bureau of Ocean Energy Management (BOEM), an agency statutory authority granted by Section 388 is administered by the Bureau of Ocean Energy Management (BOEM), an agency
within the Department of the Interior. Since the passage of EPAct, BOEM has promulgated rules and guidelines governing within the Department of the Interior. Since the passage of EPAct, BOEM has promulgated rules and guidelines governing
the permitting and operation of offshore wind facilities. In the permitting and operation of offshore wind facilities. In
January 2023, BOEM issued a notice of proposed rulemaking that would establish a leasing system for offshore renewable projects similar to the one in place for offshore oil and gas leasing. In addition, several federal agencies have roles to play in permitting addition, several federal agencies have roles to play in permitting
development and operation activities. development and operation activities.
Congressional Research Service
Congressional Research Service
link to page 4 link to page 5 link to page 6 link to page
link to page 4 link to page 5 link to page 6 link to page
76 link to page link to page
109 link to page 11 link to page 14 link to page 15 link to page 11 link to page 14 link to page 15
Wind Energy: Offshore Permitting
Contents
Jurisdiction over the Ocean ............................................................................................................. 1
The Coastal Zone Management Act and the Role of the States ...................................................... 2
Federal Permitting ........................................................................................................................... 3
The Energy Policy Act of 2005 (EPAct) ................................................................................... 43
The National Environmental Policy Act (NEPA) ............................................................... 76
Other Statutes of Note ......................................................................................................... 8
Conclusion ...................................................................................................................................... 11 12
Contacts
Author Information ........................................................................................................................ 12
Congressional Research Service
Congressional Research Service
Wind Energy: Offshore Permitting
echnological advancements, tax incentives, and concerns about climate change have
echnological advancements, tax incentives, and concerns about climate change have
driven a global expansion in the development of renewable energy resources. Wind energy driven a global expansion in the development of renewable energy resources. Wind energy
T is a fast-growing source of new electric power generation, and U.S. wind energy
T is a fast-growing source of new electric power generation, and U.S. wind energy
production capacity has been increasing consistently over the past several years.1
production capacity has been increasing consistently over the past several years.1
Currently, in In contrast to contrast to
Europe,2 the vast majority of wind power capacityEurope,2 all but one commercial wind power facility in the United States is in the United States is
currently based on based on
land. However, multiple offshore wind and related infrastructure projects have been proposed in land. However, multiple offshore wind and related infrastructure projects have been proposed in
recent years to the Bureau of Ocean Energy Management (BOEM).3 recent years to the Bureau of Ocean Energy Management (BOEM).3
The focus of this report is the current law applicable to siting offshore wind facilities, including
The focus of this report is the current law applicable to siting offshore wind facilities, including
the relationship between state and federal jurisdictional authorities. This report also discusses the relationship between state and federal jurisdictional authorities. This report also discusses
court challenges to early federal offshore wind energy permitting decisions; regulatory activity court challenges to early federal offshore wind energy permitting decisions; regulatory activity
following the Energy Policy Act of 2005 following the Energy Policy Act of 2005
(EPAct) that clarified jurisdiction over permitting of offshore that clarified jurisdiction over permitting of offshore
wind facilities;4 and recent developments with respect to the existing statutory and regulatory wind facilities;4 and recent developments with respect to the existing statutory and regulatory
framework for offshore wind energy production. framework for offshore wind energy production.
Jurisdiction over the Ocean
The United StatesUnited States
’ authority over the oceans and its natural resources begins at the coast—often called authority over the oceans and its natural resources begins at the coast—often called
the “baseline” in this context—and extends 200 nautical miles out to sea. This is known as the the “baseline” in this context—and extends 200 nautical miles out to sea. This is known as the
United States’ Exclusive Economic Zone (EEZ). The first 12 nautical miles comprise the U.S. United States’ Exclusive Economic Zone (EEZ). The first 12 nautical miles comprise the U.S.
territorial sea.5 Under the 1982 United Nations Convention on the Law of the Sea6 (UNCLOS), a territorial sea.5 Under the 1982 United Nations Convention on the Law of the Sea6 (UNCLOS), a
coastal nation may claim sovereignty over the air space, water, seabed, and subsoil within its coastal nation may claim sovereignty over the air space, water, seabed, and subsoil within its
territorial sea.7 U.S. Supreme Court precedent and international practice establish that this territorial sea.7 U.S. Supreme Court precedent and international practice establish that this
sovereignty authorizes coastal nations to permit offshore development within their territorial sovereignty authorizes coastal nations to permit offshore development within their territorial
seas.8 Although the United States has not ratified UNCLOS, it generally acts in alignment with seas.8 Although the United States has not ratified UNCLOS, it generally acts in alignment with
its the treaty’s terms.9 terms.9
The U.S. contiguous zone extends beyond the territorial sea to 24 nautical miles from the
The U.S. contiguous zone extends beyond the territorial sea to 24 nautical miles from the
baseline. In this area, a coastal nation may regulate to protect its territorial sea and to enforce its baseline. In this area, a coastal nation may regulate to protect its territorial sea and to enforce its
customs, fiscal, immigration, and sanitary laws.10 customs, fiscal, immigration, and sanitary laws.10
The jurisdiction of the federal government with respect to individual states is also important. The Submerged Lands Act of 195311 assured coastal states control over the lands beneath coastal
1 Energy Information Administration, at
1 Renewable & Alternative Fuels, U.S. ENERGY INFO. ADMIN., https://www.eia.gov/renewable/data.php#wind https://www.eia.gov/renewable/data.php#wind
(last visited Feb. 7, 2023).
. 2 More information about European offshore wind projects can be found at 2 More information about European offshore wind projects can be found at
Statistics, WIND EUROPE, https://windeurope.org/data-and-https://windeurope.org/data-and-
analysis/statistics/analysis/statistics/
(last visited Feb. 7, 2023). .
3 An updated list of these leases and other documents related to offshore renewable energy projects, which are largely
3 An updated list of these leases and other documents related to offshore renewable energy projects, which are largely
wind energy projects, can be found at wind energy projects, can be found at
https://www.boem.gov/renewable-energy/lease-and-grant-information.
4 P.L. 109-58. 5 Proc. No. 5928 (December 27, 1988). 6 United Nations Convention on the Law of the Sea, December 10, 1982, 21 I.L.M. 1261 (entered into force November 16, 1994).
7 UNCLOSLease and Grant Information, BUREAU OF OCEAN ENERGY MGMT., U.S. DEP’T OF THE INTERIOR, https://www.boem.gov/renewable-energy/lease-and-grant-information (last visited Feb. 7, 2023).
4 Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005) [hereinafter
EPAct].http://www.congress.gov/cgi-lis/bdquery/R?d109:FLD002:@1(109+58) 5 Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988). 6 U.N. Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261 (entered into force Nov. 16, 1994) [hereinafter UNCLOS].
7 Id. at arts. 2.1, 2.2, 3; see also United States v. California, 332 U.S. 19 arts. 2.1, 2.2, 3; see also United States v. California, 332 U.S. 19
(1947), 29–41 (1947), superseded by statute, Submerged Lands Act of 1953, 67 Stat. 29, 43 U.S.C. § 1301; Alabama v. Texas, 347 U.S. 272, ; Alabama v. Texas, 347 U.S. 272,
273-274273–74 (1954). (1954).
8
8
SeeSee United States v. California, 436 U.S. 32, 36 (1978); United States v. Alaska, 422 U.S. 184, United States v. California, 436 U.S. 32, 36 (1978); United States v. Alaska, 422 U.S. 184,
199198–99 (1975); Alabama (1975); Alabama
v. Texas, 347 U.S. v. Texas, 347 U.S.
272, 273-274at 273–74 (1954); United States v. California, 332 U.S. (1954); United States v. California, 332 U.S.
19at 29–41 (1947). (1947).
9
9
See Proc. No. 5928 (DecemberSee Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988). 27, 1988).
10 UNCLOS10 UNCLOS
, art. 33. art. 33. 11 43 U.S.C. §§1301-1303, 1311-1315.
Congressional Research Service
Congressional Research Service
1
1
Wind Energy: Offshore Permitting
The jurisdiction of the federal government with respect to individual states is also important. The Submerged Lands Act of 195311 assured coastal states control over the lands beneath coastal waters in an area stretching three nautical waters in an area stretching three miles from the shore in most places, and nine miles from the shore in most places, and nine
nautical miles in others.12 miles in others.12
States may regulate the coastal waters within their jurisdiction, subject to federal regulation for States may regulate the coastal waters within their jurisdiction, subject to federal regulation for
“commerce, navigation, national defense, and international affairs” and the power of the federal “commerce, navigation, national defense, and international affairs” and the power of the federal
government to preempt state law.13 The remaining outer portions of waters over which the United government to preempt state law.13 The remaining outer portions of waters over which the United
States exercises jurisdiction are federal waters.14 States exercises jurisdiction are federal waters.14
Thus
Thus
, the federal government has jurisdiction over the potential locations for offshore wind farms the federal government has jurisdiction over the potential locations for offshore wind farms
to the boundaries of its EEZ. The scope of this federal authority is discussed in greater detail later to the boundaries of its EEZ. The scope of this federal authority is discussed in greater detail later
in this report. in this report.
The Coastal Zone Management Act and the Role of
the States
States play an important regulatory role when a wind energy project is proposed for construction States play an important regulatory role when a wind energy project is proposed for construction
in waters under both federal and state jurisdiction. As an initial matter, any wind energy project or in waters under both federal and state jurisdiction. As an initial matter, any wind energy project or
facility associated with such a project to be constructed in state waters, including any cables that facility associated with such a project to be constructed in state waters, including any cables that
would be necessary to transmit power back to shore, is subject to applicable state regulation or would be necessary to transmit power back to shore, is subject to applicable state regulation or
permitting requirements. The federal Coastal Zone Management Act15 (CZMA) recognizes three permitting requirements. The federal Coastal Zone Management Act15 (CZMA) recognizes three
state regulatory frameworks that may be relevant: (1) “State establishment of criteria and state regulatory frameworks that may be relevant: (1) “State establishment of criteria and
standards for local implementation, subject to administrative review and enforcement”; (2) standards for local implementation, subject to administrative review and enforcement”; (2)
“[d]irect State land and water use planning and regulation”; and (3) regulation development and “[d]irect State land and water use planning and regulation”; and (3) regulation development and
implementation by local agencies, with state-level review of program decisions.16 Within these implementation by local agencies, with state-level review of program decisions.16 Within these
categories, coastal zone regulation varies significantly among the states. categories, coastal zone regulation varies significantly among the states.
In addition, the CZMA encourages states to enact coastal zone management plans to coordinate
In addition, the CZMA encourages states to enact coastal zone management plans to coordinate
protection of habitats and resources in coastal waters.17 The CZMA establishes a policy of protection of habitats and resources in coastal waters.17 The CZMA establishes a policy of
preservation alongside sustainable use and development compatible with resource protection.18 preservation alongside sustainable use and development compatible with resource protection.18
State coastal zone management programs that are approved by the Secretary of Commerce State coastal zone management programs that are approved by the Secretary of Commerce
receive federal monetary and technical assistance. State programs must designate conservation receive federal monetary and technical assistance. State programs must designate conservation
measures and permissible uses for land and water resources19 and must address various sources of measures and permissible uses for land and water resources19 and must address various sources of
water pollution.20 water pollution.20
11 43 U.S.C. §§ 1301–1303, 1311–1315. 12 Id. § 12 Id. at §1301(a)(2). State jurisdiction typically extends three nautical miles (approximately 3.3 miles) seaward of the 1301(a)(2). State jurisdiction typically extends three nautical miles (approximately 3.3 miles) seaward of the
coast or “baseline.” Texas and the Gulf Coast of Florida have jurisdiction over an area extending three “marine coast or “baseline.” Texas and the Gulf Coast of Florida have jurisdiction over an area extending three “marine
leagues” (nine nautical miles) from the baseline. leagues” (nine nautical miles) from the baseline.
43 U.S.C. §Id. § 1301(a)(2). 1301(a)(2).
13 13
Id. at §§§§ 1314(a), 1311(a)(2). 1314(a), 1311(a)(2).
14 14
Id. at §§ 1302. 1302.
15 16 U.S.C. §§15 16 U.S.C. §§
1451-1464. 16 16 U.S.C. § 1451–1465. 16 Id. § 1455(d)(11). 1455(d)(11).
17 Coastal U.S. states and territories, including the Great Lakes states, are eligible to receive federal assistance for their 17 Coastal U.S. states and territories, including the Great Lakes states, are eligible to receive federal assistance for their
coastal zone management programs. All eligible coastal and Great Lakes states and territories except Alaska participate coastal zone management programs. All eligible coastal and Great Lakes states and territories except Alaska participate
in the program. in the program.
See National Oceanic and Atmospheric Administration, Office of Ocean and Coastal Resource Management, State and Territory Coastal Management Program Summaries, available at https://coast.noaa.gov/czm/mystate/.
18 Id. at §1452(1), (2). 19 Id. at §1455(d)(2), (9)-(12). 20 Id. at §See Office For Coast Management, Coastal Zone Management Programs, NAT’L OCEANIC & ATMOSPHERIC ADMIN., https://coast.noaa.gov/czm/mystate/ (last visited Feb. 15, 2023).
18 16 U.S.C. § 1452(1), (2). 19 Id. § 1455(d)(2), (9)–(12). 20 Id. § 1455(d)(16).
Congressional Research Service
2
Wind Energy: Offshore Permitting
1455(d)(16).
Congressional Research Service
2
Wind Energy: Offshore Permitting
Several states, including New Jersey, California, and Rhode Island, consolidate authority for their programs in one agency.21 In New Jersey, for instance, the state Department of Environmental Protection (through the Coastal Management Office within the Commissioner’s Office of Policy, Planning, and Science) is the lead agency for coastal zone management under several state laws.22 The majority of states, however, operate coastal zone management programs under “networks” of parallel agencies, with various roles defined by policy guidance and memoranda of understanding (MOUs).23 Based on a series of MOUs, each agency is obligated to issue and apply state regulations and permits consistently with the state’s coastal zone management program.24 Thus, offshore wind energy projects could be subject to comprehensive regulation with permitting authority spread among multiple state and local agencies.
Once a state program is in place, the CZMA requires that the federal government and federally Once a state program is in place, the CZMA requires that the federal government and federally
permitted activities be “consistent to the maximum extent practicable with” that program.permitted activities be “consistent to the maximum extent practicable with” that program.
2521 Responding to a Supreme Court decision that excluded oil and gas leasing in the federal waters of Responding to a Supreme Court decision that excluded oil and gas leasing in the federal waters of
the Outer Continental Shelf (OCS) from state review under the CZMA, Congress amended the the Outer Continental Shelf (OCS) from state review under the CZMA, Congress amended the
“consistency review” provision to include the impacts on a state coastal zone from actions in “consistency review” provision to include the impacts on a state coastal zone from actions in
federal waters.federal waters.
2622 Thus, states may participate in federal efforts to permit projects in federal waters Thus, states may participate in federal efforts to permit projects in federal waters
to ensure that such projects are consistent with state coastal zone management regulation. to ensure that such projects are consistent with state coastal zone management regulation.
Federal Permitting
The production of energy on federal and federally controlled lands, including the OCS, requires The production of energy on federal and federally controlled lands, including the OCS, requires
some form of permission, such as a right-of-way, easement, or license.some form of permission, such as a right-of-way, easement, or license.
27 For For
onshore wind wind
projects on federal public lands, the Department of the Interior (DOI), through the Bureau of projects on federal public lands, the Department of the Interior (DOI), through the Bureau of
Land Management, has created a regulatory program under the Federal Land Policy and Land Management, has created a regulatory program under the Federal Land Policy and
Management Management
Act,28Act of 1976,23 but a federal statute expressly governing but a federal statute expressly governing
offshore wind energy development wind energy development
was not enacted until was not enacted until
August 2005 as part of the Energy Policy Act of 2005the Energy Policy Act of 2005
(EPAct). Before . Before
enactment of EPAct, some permitting in support of offshore wind energy development had taken enactment of EPAct, some permitting in support of offshore wind energy development had taken
place, but the use of the laws existing at that time proved controversial and was challenged in place, but the use of the laws existing at that time proved controversial and was challenged in
court. The previous regulatory regime, the conflicts it engendered, and EPAct legal authority are court. The previous regulatory regime, the conflicts it engendered, and EPAct legal authority are
discussed below.
21 See Rusty Russell, Neither Out Far Nor In Deep: The Prospects for Utility-Scale Wind Power in the Coastal Zone, 31 B.C. Envtl. Aff. L. Rev. 221, 240-241 (2004).
22 E.g., Freshwater Wetlands Protection Act, N.J.S.A. 13:9B; Flood Hazard Area Control Act, N.J.S.A. 58:16A; Wetlands Act of 1970, N.J.S.A. 13:9A; Waterfront Development Act, N.J.S.A. 12:5-3; NJ Water Pollution Control Act, N.J.S.A. 58:10A; Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19; Tidelands Act, N.J.S.A. 12:3.
23 Russell, supra note 22, at 241. 24 Id. at App. E. 25 16 U.S.C. §1456(c). 26 Id.; Sec’y of the Interior v. California, 464 U.S. 312, 315 (1984). 27 Several federal laws appear to indicate that Congress intends the OCS to be used only when permission has been expressly granted. See 43 U.S.C. §1332(1), (3) (“the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition”); see also 42 U.S.C. §9101(a)(1) (stating that the purpose of the Ocean Thermal Energy Conversion Act is to “authorize and regulate the construction, location, ownership, and operation of ocean thermal energy conversion facilities.”).
28 43 U.S.C. §§1701 et seq.
Congressional Research Service
3
Wind Energy: Offshore Permitting
discussed below.
The Energy Policy Act of 2005 (EPAct)
Prior to enactment of EPAct in 2005, the Army Corps of Engineers (Corps) took the lead role in Prior to enactment of EPAct in 2005, the Army Corps of Engineers (Corps) took the lead role in
the federal offshore wind energy permitting process, exercising jurisdiction under Section 10 of the federal offshore wind energy permitting process, exercising jurisdiction under Section 10 of
the Rivers and Harbors Act (RHA),the Rivers and Harbors Act (RHA),
2924 as amended by the Outer Continental Shelf Lands Act as amended by the Outer Continental Shelf Lands Act
(OCSLA).(OCSLA).
3025 The Corps has jurisdiction under these laws to permit obstructions to navigation The Corps has jurisdiction under these laws to permit obstructions to navigation
within the “navigable waters of the United States” and on the OCS.within the “navigable waters of the United States” and on the OCS.
3126 The Corps’ jurisdiction over The Corps’ jurisdiction over
potential offshore wind projects had never been made explicit, however. potential offshore wind projects had never been made explicit, however.
Section 388 of EPAct sought to address some of the uncertainty related to federal jurisdiction over offshore wind energy development by amending OCSLA to establish legal authority for federal review and approval of various offshore energy-related projects. Section 388 authorized the Secretary of the Interior, in consultation with other federal agencies, to grant leases, easements, or rights-of-way on the OCS for certain activities—wind energy development among them—not authorized by other relevant statutes.32 A memorandum of understanding between the Department of the Interior and the Federal Energy Regulatory Commission (FERC) signed in
29 33 U.S.C. §§407-
21 16 U.S.C. § 1456(c). 22 Id.; Sec’y of the Interior v. California, 464 U.S. 312, 315 (1984), superseded by statute, Coastal Zone Act Reauthorization Amendments of 1990, Pub. L. No. 101-508, 104 Stat. 1388-299.
23 43 U.S.C. §§ 1701–1785. 24 33 U.S.C. §§ 403–687. Section 10 was enacted in 1899, and its text has not changed substantively since that time. It 687. Section 10 was enacted in 1899, and its text has not changed substantively since that time. It
states: states:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity
of any of the waters of the United States is prohibited; and it shall not be lawful to build or of any of the waters of the United States is prohibited; and it shall not be lawful to build or
commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or
other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the
United States, outside established harbor lines, or where no harbor lines have been established, United States, outside established harbor lines, or where no harbor lines have been established,
except on plans recommended by the Chief of Engineers and authorized by the Secretary of the except on plans recommended by the Chief of Engineers and authorized by the Secretary of the
Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course,
location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge,
or enclosure within the limits of any breakwater, or of the channel of any navigable water of the or enclosure within the limits of any breakwater, or of the channel of any navigable water of the
United States, unless the work has been recommended by the Chief of Engineers and authorized by United States, unless the work has been recommended by the Chief of Engineers and authorized by
the Secretary of the Army prior to beginning the same. the Secretary of the Army prior to beginning the same.
33 U.S.C. §
33 U.S.C. §
403. 403.
3025 43 U.S.C. §§ 43 U.S.C. §§
1331- 1331–1356a. 1356a.
3126 33 U.S.C. § 33 U.S.C. §
403. Corps regulations define the “navigable waters of the United States” as “those waters that are 403. Corps regulations define the “navigable waters of the United States” as “those waters that are
subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible
for use to transport interstate or foreign commerce.” 33 C.F.R. §329.4. Under the RHA, navigable waters “includes only those ocean and coastal waters that can be found up to three geographic miles seaward of the coast.” Alliance To Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 288 F.Supp.2d 64, 72 (D. Mass. 2003), aff’d, 398 F.3d 105 (1st Cir. 2005); see also 33 C.F.R. §329.12(a). On the OCS, however, the Corps’ regulatory jurisdiction extends beyond that three-mile limit for certain purposes. 43 U.S.C. §1333(a)(1), (e).
32 43 U.S.C. §1337(p)(1). DOI authority to grant leases, easements, or rights-of-way on the OCS is contingent upon the permitted activities being consistent with the purposes specified by the law. The relevant property interest may only be issued if the OCS activity will:
(A) support exploration, development, production, or storage of oil or natural gas, except that a lease, easement, or right-of-way shall not be granted in an area in which oil and gas preleasing, leasing, and related activities are prohibited by a moratorium;
(B) support transportation of oil or natural gas, excluding shipping activities;
(C) produce or support production, transportation, or transmission of energy from sources other than oil and gas; or
(D) use, for energy-related purposes or for other authorized marine-related purposes, facilities currently or previously used for activities authorized under ... [the OCLSA], except that any oil and gas energy-related uses shall not be authorized in areas in which oil and gas preleasing, leasing, and related activities are prohibited by a moratorium.
EPAct, §388(a), adding new 43 U.S.C. §1337(p)(1)(A)-(D).
Congressional Research Service
4
link to page 11 link to page 11 Wind Energy: Offshore Permitting
April of 2009 confirmed the exclusive jurisdiction of the Secretary of the Interior, exercised through what was then the Bureau of Ocean Energy Management, Regulation, and Enforcement,33 over “the production, transportation, or transmission of energy from non-hydrokinetic renewable energy projects on the OCS.”
Congressional Research Service
3
link to page 11 link to page 11 Wind Energy: Offshore Permitting
Section 388 of EPAct sought to address some of the uncertainty related to federal jurisdiction over offshore wind energy development by amending OCSLA to establish legal authority for federal review and approval of various offshore energy-related projects. Section 388 authorized the Secretary of the Interior, in consultation with other federal agencies, to grant leases, easements, or rights-of-way on the OCS for certain activities—wind energy development among them—not authorized by other relevant statutes.27
EPAct also made clear that federal agencies with permitting authority under other federal laws
EPAct also made clear that federal agencies with permitting authority under other federal laws
retain their jurisdiction.retain their jurisdiction.
3428 Thus, offshore development continues to require a Corps permit Thus, offshore development continues to require a Corps permit
pursuant to the RHA. Federal agencies that take actions with respect to energy development must pursuant to the RHA. Federal agencies that take actions with respect to energy development must
also, for example, comply with environmental review requirements and species protection laws.also, for example, comply with environmental review requirements and species protection laws.
29 The legislative language does not clearly dictate which agency should take the lead role in The legislative language does not clearly dictate which agency should take the lead role in
coordinating federal permitting and responsibility for preparing analysis under the National coordinating federal permitting and responsibility for preparing analysis under the National
Environmental Policy Act (NEPA).Environmental Policy Act (NEPA).
3530 However, However,
itthe language does suggest that DOI is charged does suggest that DOI is charged
with primary responsibility: with primary responsibility, and DOI has assumed that responsibility in practice.36
The law directs the Secretary of the Interior to consult with other agencies as a part of its leasing, The law directs the Secretary of the Interior to consult with other agencies as a part of its leasing,
easement, and right-of-way granting processeasement, and right-of-way granting process
.37,31 and DOI is DOI is
also responsible for ensuring that activities responsible for ensuring that activities
carried out pursuant to its new authority provide for “coordination with relevant federal carried out pursuant to its new authority provide for “coordination with relevant federal
agencies.”agencies.”
3832 The law also directs the Secretary to establish a system of “royalties, fees, rentals, The law also directs the Secretary to establish a system of “royalties, fees, rentals,
bonuses, or other payments” that will ensure a fair return to the United States for any property bonuses, or other payments” that will ensure a fair return to the United States for any property
interest granted under this provision.interest granted under this provision.
3933
While Section 388 of EPAct provided DOI with significant flexibility in crafting a regulatory
While Section 388 of EPAct provided DOI with significant flexibility in crafting a regulatory
regime for offshore wind energy development, the act specifically addressed certain aspects of the regime for offshore wind energy development, the act specifically addressed certain aspects of the
process related to the grant of property interests. First, the act directed that leases, easements, and rights-of-way are to be issued on a competitive basis, subject to limited exceptions.40 The Secretary is further authorized to provide for the duration of any property interest granted under
33 The April 2009 MOU referenced in the text originally confirmed the exclusive jurisdiction of the Minerals Management Service (MMS) over the described projects. The jurisdiction of MMS was subsequently transferred to the Bureau of Ocean Energy, Management, Regulation, and Enforcement, and then to its successor agency for these purposes, BOEM. Similarly, many of the rulemakings or other administrative actions taken by MMS as described in this memorandum now authorize activity by or assert the jurisdiction of BOEM as the successor agency to MMS.
34 Id. at §1337(p)(9). 35 NEPA and its role in the offshore wind permitting process are discussed infra in the subsection entitled “Other
Statutes of Note.”
36 Section 388(d) of EPAct exempted certain actions from specific Section 388 requirements. This “savings provision” states that the law does not require the resubmittal of any document that was previously submitted or the reauthorization of any action that was previously authorized with respect to a project for which, before the date of enactment of EPAct: (1) an offshore test facility has been constructed; or (2) a request for a proposal has been issued by a public authority (30 C.F.R. §585.540(c)). Thus, where a project had resulted from a public entity’s request for proposals or where a project is associated with an existing offshore test facility, previously submitted documents do not need to be resubmitted and previously authorized actions do not need to be reauthorized. This provision does not seem to exempt unauthorized actions associated with the exempted actions, or, indeed, any other aspect of the related project, from a requirement to comply with the property interest acquisition provisions of Section 388. Thus, for example, siting and construction of an offshore data tower that was previously approved would not have to be reauthorized. However, any activity that was not authorized before EPAct’s enactment on August 8, 2005, such as the construction of additional facilities, would appear to be subject to the requirements of Section 388.
37 Id. at §1337(p)(1). 38 Id. at §1337(p)(4). 39 Id. at §1337(p)(2)(A). 40 Id. at §1337(p)(3). The statute provides for two exceptions to the general requirement that a property interest issued under this provision be granted on a “competitive basis”: (1) if the Secretary of the Interior determines that there is no competitive interest, or (2) if the project meets certain criteria indicating a limited scope.
Congressional Research Service
5
Wind Energy: Offshore Permitting
this subsection and to provide for suspension and cancellation of any lease, easement, or right-of-way.41
for use to transport interstate or foreign commerce.” 33 C.F.R. § 329.4. Under the RHA, navigable waters “includes only those ocean and coastal waters that can be found up to three geographic miles seaward of the coast.” Alliance To Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 288 F. Supp. 2d 64, 72 (D. Mass. 2003), aff’d, 398 F.3d 105 (1st Cir. 2005); see also 33 C.F.R. § 329.12(a). On the OCS, however, the Corps’ regulatory jurisdiction extends beyond that three-mile limit for certain purposes. 43 U.S.C. § 1333(a)(1), (e).
27 43 U.S.C. § 1337(p)(1). DOI authority to grant leases, easements, or rights-of-way on the OCS is contingent upon the permitted activities being consistent with the purposes specified by the law. The relevant property interest may only be issued if the OCS activity will:
(A) support exploration, development, production, or storage of oil or natural gas, except that a lease, easement, or right-of-way shall not be granted in an area in which oil and gas preleasing, leasing, and related activities are prohibited by a moratorium;
(B) support transportation of oil or natural gas, excluding shipping activities;
(C) produce or support production, transportation, or transmission of energy from sources other than oil and gas; or
(D) use, for energy-related purposes or for other authorized marine-related purposes, facilities currently or previously used for activities authorized under ... [the OCLSA], except that any oil and gas energy-related uses shall not be authorized in areas in which oil and gas preleasing, leasing, and related activities are prohibited by a moratorium.
EPAct, § 388(a), adding new 43 U.S.C. § 1337(p)(1)(A)-(D).
28 43 U.S.C. § 1337(p)(9). 29 See, e.g., Env’t Def. Ctr. v. BOEM, 36 F.4th 850, 891 (9th Cir. 2022) (holding that BOEM had not satisfied its requirements under NEPA, ESA, and the CZMA when it authorized well stimulation treatments off the coast of California).
30 NEPA and its role in the offshore wind permitting process are discussed infra in the subsection entitled “Other Statutes of Note.”
31 43 U.S.C. § 1337(p)(1). 32 Id. § 1337(p)(4). 33 Id. § 1337(p)(2)(A).
Congressional Research Service
4
Wind Energy: Offshore Permitting
process related to the grant of property interests. First, the act directed that leases, easements, and rights-of-way are to be issued on a competitive basis, subject to limited exceptions.34 The Secretary is further authorized to provide for the duration of any property interest granted under this subsection and to provide for suspension and cancellation of any lease, easement, or right-of-way.35
In general, an offshore wind energy developer that is granted a lease, easement or right-of-way is
In general, an offshore wind energy developer that is granted a lease, easement or right-of-way is
responsible for royalties or other payments. Section 388 of EPAct also established the method for responsible for royalties or other payments. Section 388 of EPAct also established the method for
allocating those payments among states. The allocation is based upon a formula that equitably allocating those payments among states. The allocation is based upon a formula that equitably
distributes to states 27% of the revenues collected by the federal government, based on the distributes to states 27% of the revenues collected by the federal government, based on the
proximity of the project to the affected states’ offshore boundaries.proximity of the project to the affected states’ offshore boundaries.
4236 The act established that The act established that
states that have a “coastline that is located within 15 miles of the geographic center of the states that have a “coastline that is located within 15 miles of the geographic center of the
project” are entitled to a revenue share.project” are entitled to a revenue share.
43 More37 Thus more than one state may be eligible to receive a portion than one state may be eligible to receive a portion
of these revenues, depending upon the location of a project. of these revenues, depending upon the location of a project.
In addition, EPAct authorized considerable regulation of impacts associated with offshore
In addition, EPAct authorized considerable regulation of impacts associated with offshore
development. It required the Secretary to ensure that “any activity under this subsection” be development. It required the Secretary to ensure that “any activity under this subsection” be
carried out in a manner that adequately addresses specified issues, including environmental carried out in a manner that adequately addresses specified issues, including environmental
protection, safety, protection of U.S. national security, and protection of the rights of others to use protection, safety, protection of U.S. national security, and protection of the rights of others to use
the OCS and its resources.the OCS and its resources.
4438 It also established specific financial security requirements for It also established specific financial security requirements for
projects. The law requires the holder of a Section 388 property interest to “provide for the projects. The law requires the holder of a Section 388 property interest to “provide for the
restoration of the lease, easement, or right-of-way” and to furnish a surety bond or other form of restoration of the lease, easement, or right-of-way” and to furnish a surety bond or other form of
security, leaving the amount and the exact purposes to which any forfeited sums will be applied to security, leaving the amount and the exact purposes to which any forfeited sums will be applied to
the Secretary’s discretion.the Secretary’s discretion.
4539 Further, in conjunction with the authority to require some form of Further, in conjunction with the authority to require some form of
financial assurance, the Secretary is empowered to impose “such other requirements as the financial assurance, the Secretary is empowered to impose “such other requirements as the
Secretary considers necessary to protect the interests of the public and the United States.”Secretary considers necessary to protect the interests of the public and the United States.”
4640 Thus Thus
the Secretary, depending on how these authorities are exercised, may potentially regulate many the Secretary, depending on how these authorities are exercised, may potentially regulate many
aspects of any industry that is permitted to operate on the OCS under this subsection of the aspects of any industry that is permitted to operate on the OCS under this subsection of the
OCSLA. OCSLA.
EPAct also contained a provision expressly providing for a state consultative role in the
EPAct also contained a provision expressly providing for a state consultative role in the
permitting process. Section 388 requires the Secretary of the Interior to provide for coordination permitting process. Section 388 requires the Secretary of the Interior to provide for coordination
and consultation with a state’s governor or the executive of any local government that may be and consultation with a state’s governor or the executive of any local government that may be
affected by a lease, easement, or right-of-way granted under this new authority.affected by a lease, easement, or right-of-way granted under this new authority.
47 In addition, the law makes clear that it does not affect any state’s claim to “jurisdiction over, or any right, title, or interest in, any submerged lands.”48
In 2009, DOI issued a final rule establishing the permitting process and setting forth a royalty collection and allocation structure for OCS energy projects, as directed by EPAct.49 The rulemaking authorized BOEM50 to issue two types of OCS leases. Limited leases grant access and
41 Id. at §1337(p)(5). 42 Id. at §1337(p)(2)(B). 43 Id. 44 43 U.S.C. §41 In addition, the
34 Id. § 1337(p)(3). The statute provides for two exceptions to the general requirement that a property interest issued under this provision be granted on a “competitive basis”: (1) if the Secretary of the Interior determines that there is no competitive interest, or (2) if the project meets certain criteria indicating a limited scope. Id.
35 Id. § 1337(p)(5). 36 Id. § 1337(p)(2)(B). 37 Id. 38 Id. § 1337(p)(4). DOI also appears to have adopted this interpretation in a rulemaking, stating that it 1337(p)(4). DOI also appears to have adopted this interpretation in a rulemaking, stating that it
“interprets the authority granted in section 388(a) of the Energy Policy Act of 2005 to issue leases, easements or rights-“interprets the authority granted in section 388(a) of the Energy Policy Act of 2005 to issue leases, easements or rights-
of-way as also providing MMS authority to regulate or permit the activities that occur on those leases, easements or of-way as also providing MMS authority to regulate or permit the activities that occur on those leases, easements or
rights-of-way, if those activities are energy related.” 70 Fed. Reg. 77345, 77346 (rights-of-way, if those activities are energy related.” 70 Fed. Reg. 77345, 77346 (
DecemberDec. 30, 2005). 30, 2005).
4539 43 U.S.C. § 43 U.S.C. §
1337(p)(6). 1337(p)(6).
4640 Id. .
4741 Id. .
at §§ 1337(p)(7).
Congressional Research Service
5
Wind Energy: Offshore Permitting
law makes clear that it does not affect any state’s claim to “jurisdiction over, or any right, title, or interest in, any submerged lands.”42
In 2009, DOI issued a final rule establishing the permitting process and setting forth a royalty collection and allocation structure for OCS energy projects, as directed by EPAct.43 The rulemaking authorized BOEM to issue two types of OCS leases. Limited leases grant access and 1337(p)(7). 48 EPAct, §388(e). 49 74 Fed. Reg. 19,638 (April 29, 2009). 50 See supra fn. 32.
Congressional Research Service
6
Wind Energy: Offshore Permitting
operational rights to the lessee for activities related to the production of energy, including operational rights to the lessee for activities related to the production of energy, including
assessment and testing activities, but do not authorize production of energy products for sale or assessment and testing activities, but do not authorize production of energy products for sale or
distribution.distribution.
5144 Such leases generally support exploration and allow the lessee to develop a fuller Such leases generally support exploration and allow the lessee to develop a fuller
proposal for energy production, potentially leading to the potential sale of a commercial lease. proposal for energy production, potentially leading to the potential sale of a commercial lease.
Commercial leases would give the lessee full rights to receive authorizations necessary to assess, Commercial leases would give the lessee full rights to receive authorizations necessary to assess,
test, and produce renewable energy on a commercial scale over the long term (approximately 30 test, and produce renewable energy on a commercial scale over the long term (approximately 30
years).years).
52
The rulemaking sets45
The 2009 final rule set forth a formula for determining payment amounts, including lease payments forth a formula for determining payment amounts, including lease payments
and royalties, owed by parties participating in OCS renewable energy projects.and royalties, owed by parties participating in OCS renewable energy projects.
5346 The rulemaking The rulemaking
also establishes also establishes
howa formula for allocation of federal revenues from lessees federal revenues from lessees
will be allocated. As mandated by EPAct, . As mandated by EPAct,
BOEM shares 27% of revenues for any project “located wholly or partially within the area BOEM shares 27% of revenues for any project “located wholly or partially within the area
extending three nautical miles seaward of State submerged lands”extending three nautical miles seaward of State submerged lands”
5447 with any “eligible state,” with any “eligible state,”
which is defined as a “coastal State having a coastline (measured from the nearest point) no more which is defined as a “coastal State having a coastline (measured from the nearest point) no more
than 15 miles from the geographic center of a qualified project area.”than 15 miles from the geographic center of a qualified project area.”
5548 To determine each eligible To determine each eligible
state’s share of those revenues, the agency uses an “inverse distance formula, which apportions state’s share of those revenues, the agency uses an “inverse distance formula, which apportions
shares according to the relative proximity of the nearest point on the coastline of each eligible shares according to the relative proximity of the nearest point on the coastline of each eligible
State to the geographic center of the qualified project area.”State to the geographic center of the qualified project area.”
56 49
In January 2023, BOEM issued a notice of proposed rulemaking to amend the administrative processes for offshore wind leasing.50 The proposed rule would, among other things, require BOEM to schedule offshore wind leasing well in advance for planning purposes (similar to the five-year plans required for offshore oil and gas operations under the OCSLA), reform the competitive auction process for offshore wind leases, and allow for more flexibility in oversight of geophysical and geotechnical surveying.51
The National Environmental Policy Act (NEPA)
NEPA requires federal agencies to
NEPA requires federal agencies to
take a “hard look” at, and to disclose,analyze and disclose the environmental the environmental
consequences of their actions. In general, NEPA and its implementing regulations require various consequences of their actions. In general, NEPA and its implementing regulations require various
levels of environmental analysis depending on the circumstances and the type of federal action levels of environmental analysis depending on the circumstances and the type of federal action
contemplated. Major federal actions that are found to significantly affect the environment require contemplated. Major federal actions that are found to significantly affect the environment require
42 EPAct, § 388(e). 43 74 Fed. Reg. 19,638 (Apr. 29, 2009). 44 30 C.F.R. § 585.113. 45 Id. § 585.235. 46 30 C.F.R. § 585.540. 47 Id. 48 Id. at §§ 585.112, 585.540. 49 Id. § 585.540(c). 50 Renewable Energy Modernization Rule; Notice of Proposed Rulemaking, 88 Fed. Reg. 5968 (proposed Jan. 30, 2023).
51 Id. For more information on the five-year planning process for offshore oil and gas leasing, see CRS Report RL33404, Offshore Oil and Gas Development: Legal Framework, by Adam Vann.
Congressional Research Service
6
Wind Energy: Offshore Permitting
the preparation of an environmental impact statement (EIS), a document containing detailed the preparation of an environmental impact statement (EIS), a document containing detailed
analysis of the project as proposed, as well as other alternatives, including taking no action at all.analysis of the project as proposed, as well as other alternatives, including taking no action at all.
52 If it is uncertain whether the action will have a significant environmental impact, an agency may If it is uncertain whether the action will have a significant environmental impact, an agency may
prepare an environmental assessment (EA) to assess the impacts of the project, and proceed to an prepare an environmental assessment (EA) to assess the impacts of the project, and proceed to an
EIS only if necessary.EIS only if necessary.
53 In general, for most offshore wind energy projects NEPA does not direct an agency to choose any particular course of action; the only purpose of an EIS is to ensure that environmental consequences are considered and made available to the public for comment.
Potential environmental impacts of offshore wind energy projects Potential environmental impacts of offshore wind energy projects
include, for example, include, but are not limited to, impacts on existing resources of alternative sites in terms of physical oceanography and geology; impacts on wildlife, avian, shellfish, finfish and benthic habitat; impacts on aesthetics, cultural impacts on wildlife, avian, shellfish, finfish and benthic habitat; impacts on aesthetics, cultural
resources, socioeconomic conditions; and impacts on and air and water resources, socioeconomic conditions; and impacts on and air and water
quality.54
Manyquality. Human uses such as boating and fishing may also be affected, and must be considered in a NEPA analysis.
DOI has generally used a staged NEPA review for offshore wind energy projects. This reflects the fact that many wind energy projects will have similar environmental impacts, wind energy projects will have similar environmental impacts,
thatand the impacts of the impacts of
activities at the exploration or assessment stages may be less significantactivities at the exploration or assessment stages may be less significant
, and that. In addition, a lessee may a lessee may
need to develop a detailed project description for commercial leasing before the impacts of the need to develop a detailed project description for commercial leasing before the impacts of the
51 30 C.F.R. §585.112. 52 Id. at §585.235. 53 Id. at §§585.500 et seq. 54 43 U.S.C. §1337(p)(2)(B). 55 30 C.F.R. at §§585.112, 585.540(a), 585.542. 56 Id. at §585.540(c).
Congressional Research Service
7
Wind Energy: Offshore Permitting
full project may be known. DOI began this staged review processfull project may be known. To account for these common variables, DOI began a staged review process for offshore wind permitting in late 2007, publishing the in late 2007, publishing the
Programmatic Environmental Impact Statement for Alternative Energy Development and Programmatic Environmental Impact Statement for Alternative Energy Development and
Production and Alternate Use of Facilities on the Outer Continental Shelf.Production and Alternate Use of Facilities on the Outer Continental Shelf.
5755 Among other things, Among other things,
this document this document
establishes a established a baseline analysis that helps to satisfy the requirements of NEPA for baseline analysis that helps to satisfy the requirements of NEPA for
offshore renewable energy leasing, including offshore wind projects. offshore renewable energy leasing, including offshore wind projects.
TheHowever, the agency made it clear at agency made it clear at
that time that “additional environmental review pursuant to the NEPA will be required for all that “additional environmental review pursuant to the NEPA will be required for all
future site-specific projects on the OCS.”future site-specific projects on the OCS.”
5856
For the most part, site-specific reviews to date have taken the form of an EA.
For the most part, site-specific reviews to date have taken the form of an EA.
5957 However, the However, the
filing of a “construction and operation plan” for commercial activity by a lessee necessitates a filing of a “construction and operation plan” for commercial activity by a lessee necessitates a
separate NEPA analysis that will “likely take the form of an Environmental Impact Statement separate NEPA analysis that will “likely take the form of an Environmental Impact Statement
(EIS).”(EIS).”
6058 Indeed, BOEM prepared a Draft EIS Indeed, BOEM prepared a Draft EIS
for the Construction and Operation Plan submitted by Vineyard Wind for an 800 megawatt facility in 2018. for an 800 megawatt facility in 2018.
61
Other Statutes of Note62
In addition to the role interested parties and cooperating agencies may play under NEPA, certain federal agencies have independent sources of jurisdiction over specific ocean resources. Some of the most relevant authorities are the Endangered Species Act (ESA),63 the Marine Mammal Protection Act (MMPA),64 and the Migratory Bird Treaty Act (MBTA).65 The agencies that administer those statutes do not have final authority over leasing decisions, but are likely to be involved in the environmental review process leading to a final DOI decision.
Briefly, each of these laws sets parameters for federal activities that potentially harm designated species of plants and animals. Offshore wind energy projects may impact marine species due to their obstructive, noise, or water quality impacts, and they may impact avian species primarily as a navigational hazard (i.e., birds striking wind turbine blades in motion).
57 Document available at https://www.boem.gov/renewable-energy/guide-ocs-alternative-energy-final-programmatic-environmental-impact-statement-eis.
58 Id. 59 See59
52 40 C.F.R. pt. 1502. 53 30 C.F.R. § 1501.5. 54 See, e.g., BUREAU OF OCEAN ENERGY MGMT., U.S. DEP’T OF THE INTERIOR, VINEYARD WIND 1 FINAL ENVIRONMENTAL IMPACT STATEMENT (2021), https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Vineyard-Wind-1-FEIS-Volume-1.pdf.
55 Document available at BUREAU OF OCEAN ENERGY MGMT., U.S. DEP’T OF THE INTERIOR, GUIDE TO THE OCS ALTERNATIVE ENERGY FINAL PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT (2007), https://www.boem.gov/renewable-energy/guide-ocs-alternative-energy-final-programmatic-environmental-impact-statement-eis.
56 Id. at Vol I: Executive Summary. Note that the January 2023 proposed rule that would require BOEM to conduct long-term planning and scheduling of lease auction would likely also require preparation of an EIS. Renewable Energy Modernization Rule; Notice of Proposed Rulemaking, 88 Fed. Reg. 5968 (proposed Jan. 30, 2023).
57 See, ,
e.g., Commercial Wind Lease Issuance and Site Assessment Activities on the Atlantic Outer Continental Shelf ., Commercial Wind Lease Issuance and Site Assessment Activities on the Atlantic Outer Continental Shelf
(OCS) Offshore Rhode Island and Massachusetts(OCS) Offshore Rhode Island and Massachusetts
-; Notice of Notice of
the Availability of a Revised Environmental Assessment and Availability of a Revised Environmental Assessment and
Finding of No Significant Impact, 78 Fed. Reg. 33908 (June 5, 2013); Commercial Wind Lease Issuance and Site Finding of No Significant Impact, 78 Fed. Reg. 33908 (June 5, 2013); Commercial Wind Lease Issuance and Site
Assessment Activities on the Atlantic Outer Continental Shelf (OCS) Offshore New Jersey, Delaware, Maryland, and Assessment Activities on the Atlantic Outer Continental Shelf (OCS) Offshore New Jersey, Delaware, Maryland, and
VirginiaVirginia
- –Notice of Availability (NOA) of an Environmental Assessment (EA) and Finding of No Significant Impact, Notice of Availability (NOA) of an Environmental Assessment (EA) and Finding of No Significant Impact,
77 Fed. Reg. 5560 (Feb. 3, 2012). 77 Fed. Reg. 5560 (Feb. 3, 2012).
6058 Commercial Wind Leasing and Site Assessment Activities on the Atlantic Outer Continental Shelf Offshore Commercial Wind Leasing and Site Assessment Activities on the Atlantic Outer Continental Shelf Offshore
Massachusetts; Notice of Intent to Prepare an Environmental Assessment, 77 Fed. Reg. 5830 (Feb. 6, 2012). Massachusetts; Notice of Intent to Prepare an Environmental Assessment, 77 Fed. Reg. 5830 (Feb. 6, 2012).
6159 Notice of Intent to Prepare an Environmental Impact Statement for Vineyard Wind LLC’s Proposed Wind Energy Notice of Intent to Prepare an Environmental Impact Statement for Vineyard Wind LLC’s Proposed Wind Energy
Facility Offshore Massachusetts, 83 Fed. Reg. 13777 (Facility Offshore Massachusetts, 83 Fed. Reg. 13777 (
March 30, 2018).
62 CRS Legislative Attorneys Linda Tsang and Erin Ward assisted with the preparation of this section. 63 16 U.S.C. §§1531-1544. 64 16 U.S.C. §§1361-1407. 65 16 U.S.C. §§703-712.
Congressional Research Service
8
Wind Energy: Offshore Permitting
Mar. 30, 2018).
Congressional Research Service
7
Wind Energy: Offshore Permitting
Other Statutes of Note60
In addition to the role interested parties and cooperating agencies may play under NEPA, certain federal agencies have independent sources of jurisdiction over specific ocean resources. Some of the most relevant authorities are the Endangered Species Act (ESA),61 the Marine Mammal Protection Act (MMPA),62 and the Migratory Bird Treaty Act (MBTA).63 The agencies that administer those statutes do not have final authority over leasing decisions, but are likely to be involved in the environmental review process leading to a final DOI decision.64
Briefly, each of these laws sets parameters for federal activities that potentially harm designated species of plants and animals. Offshore wind energy projects may impact marine species due to their obstructive, noise, or water quality impacts, and they may impact avian species primarily as a navigational hazard (i.e., birds striking wind turbine blades in motion).65
The ESA prohibits any person, including private entities and government agencies, from
The ESA prohibits any person, including private entities and government agencies, from
“tak[ing]” an endangered species.66 This prohibition may be extended to “threatened” species.67 “tak[ing]” an endangered species.66 This prohibition may be extended to “threatened” species.67
Take is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect, or to attempt to engage in any such conduct.”68 Additionally, a federal agency undertaking collect, or to attempt to engage in any such conduct.”68 Additionally, a federal agency undertaking
an action, such as issuing a permit that could affect a listed species or its critical habitat, is subject an action, such as issuing a permit that could affect a listed species or its critical habitat, is subject
to Section 7 of the ESA. Section 7 of the ESA requires that federal agencies ensure that their to Section 7 of the ESA. Section 7 of the ESA requires that federal agencies ensure that their
actions do not jeopardize listed species or adversely modify or destroy critical habitat.69 To actions do not jeopardize listed species or adversely modify or destroy critical habitat.69 To
comply with this obligation, the act requires federal agencies to consult with the U.S. Fish and comply with this obligation, the act requires federal agencies to consult with the U.S. Fish and
Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS or NOAA Fisheries), Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS or NOAA Fisheries),
depending upon the species affected, about the potential effect of their actions on listed species depending upon the species affected, about the potential effect of their actions on listed species
and critical habitat.70 and critical habitat.70
The Section 7 consultation process begins with a determination, with the help of
The Section 7 consultation process begins with a determination, with the help of
the ServicesFWS and NMFS, that , that
a listed species or its designated critical habitat may be present in a project area.71 If a listed a listed species or its designated critical habitat may be present in a project area.71 If a
60 CRS Legislative Attorney Erin Ward and former Legislative Attorney Linda Tsang assisted with the preparation of this section.
61 16 U.S.C. §§ 1531–1544. 62 Id. §§ 1361–1407. 63 Id. §§ 703–712. 64 These agencies include the U.S. Fish and Wildlife Service, an agency under the jurisdiction of the Department of the Interior, and the National Marine Fisheries Service, an agency under the jurisdiction of the Department of Commerce.
65 See BUREAU OF OCEAN ENERGY MGMT., U.S. DEP’T OF THE INTERIOR, SUPPORTING NATIONAL ENVIRONMENTAL POLICY ACT DOCUMENTATION FOR OFFSHORE WIND ENERGY DEVELOPMENT RELATED TO AVIAN SPECIES RESEARCH (2022), https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Avian%20White%20Paper.pdf.
66 Under the ESA, species are listed as either “endangered” or “threatened” based on the risk of their extinction. An “endangered” species is “any species which is in danger of extinction throughout all or a significant portion of its range.” A “threatened” species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (20). 67 Id. § 1533(d). 68 Id. § 1532(19). 69 Id. § 1536(a)(2). 70 Id. For more on the consultation process, see CRS Report R46677, The Endangered Species Act: Overview and Implementation, by Pervaze A. Sheikh and Erin H. Ward.
71 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c). It should also be noted that some protections also attach to species proposed for listing and critical habitat proposed for designation. 16 U.S.C. § 1536(a)(4). Federal agencies must “confer” with the appropriate Secretary if their actions are likely to jeopardize the continued existence of any proposed
Congressional Research Service
8
Wind Energy: Offshore Permitting
listed species or critical habitat may be present, then the “action agency” (in this context, DOI, as it species or critical habitat may be present, then the “action agency” (in this context, DOI, as it
considers acting on a permitting decision) must prepare a biological assessment, evaluating the considers acting on a permitting decision) must prepare a biological assessment, evaluating the
potential effects of the action on the listed species and critical habitat.72 If the acting federal potential effects of the action on the listed species and critical habitat.72 If the acting federal
agency determines that a project may adversely affect a listed species or critical habitat, it must agency determines that a project may adversely affect a listed species or critical habitat, it must
undertake formal consultation with the Services, which concludes with a biological opinion.73 undertake formal consultation with the Services, which concludes with a biological opinion.73
The biological opinion, which is prepared by FWS or NMFS as appropriate, contains a detailed The biological opinion, which is prepared by FWS or NMFS as appropriate, contains a detailed
analysis of the effects of the agency action and determines whether the proposed action is likely analysis of the effects of the agency action and determines whether the proposed action is likely
to (1) jeopardize the species or (2) destroy or adversely modify its critical habitat.74 to (1) jeopardize the species or (2) destroy or adversely modify its critical habitat.74
Projects that may take listed species but will not jeopardize its survival may proceed, subject to
Projects that may take listed species but will not jeopardize its survival may proceed, subject to
certain terms and conditions called “reasonable and prudent measures.”75Any such biological certain terms and conditions called “reasonable and prudent measures.”75Any such biological
opinion includes an “incidental take statement” that allows the agency to move forward with the opinion includes an “incidental take statement” that allows the agency to move forward with the
action or lease that will result in take of some individuals of a listed species without triggering action or lease that will result in take of some individuals of a listed species without triggering
penalties under the act. The term penalties under the act. The term
incidental means the harm occurs as part of, but is not the means the harm occurs as part of, but is not the
purpose of, carrying out an otherwise lawful activity.76 The incidental take statement specifies the purpose of, carrying out an otherwise lawful activity.76 The incidental take statement specifies the
66 Under the ESA, species are listed as either “endangered” or “threatened” based on the risk of their extinction. An “endangered” species is “any species which is in danger of extinction throughout all or a significant portion of its range.” A “threatened” species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. §§1532(6), (20). 67 16 U.S.C. §1533(d). 68 16 U.S.C. §1532(19). 69 16 U.S.C. §1536(a)(2). 70 Id. §1536(a)(2). For more on the consultation process, see CRS Report R46677, The Endangered Species Act:
Overview and Implementation, by Pervaze A. Sheikh, Erin H. Ward, and R. Eliot Crafton.
71 16 U.S.C. §1536(c)(1); 50 C.F.R. §402.12(c). It should also be noted that some protections also attach to species proposed for listing and critical habitat proposed for designation. 16 U.S.C. §1536(a)(4). Federal agencies must “confer” with the appropriate Secretary if their actions are likely to jeopardize the continued existence of any proposed anticipated amount of incidental take from the action, and any take consistent with the incidental take statement’s terms and conditions is not considered a prohibited taking.77
The MMPA prohibits, with certain exceptions, taking marine mammals in U.S. waters and by persons and vessels subject to U.S. jurisdiction on the high seas. The statute is jointly administered by the Secretary of Commerce (through NOAA/NMFS) and the Secretary of the Interior (through FWS).78 The MMPA allows FWS and NMFS to authorize the incidental taking of small numbers of marine mammals for a period of not more than five consecutive years.79 Such incidental take may be authorized only upon certain findings, in particular that the take will have a negligible impact on the species or stock.80
Implementing regulations establish procedures for administering the MMPA, including how to apply for authorization for incidental takes.81 These regulations set forth the procedures for submitting requests for such authorization to the NMFS or FWS, standards for review, and the form of the authorization.82
species or adversely modify critical habitat proposed for designation. species or adversely modify critical habitat proposed for designation.
Id. This process is distinct from the Section 7 This process is distinct from the Section 7
consultation process, less formal, and meant to assist planning early in the process should the species be listed and consultation process, less formal, and meant to assist planning early in the process should the species be listed and
more definite protections attach. more definite protections attach.
See 16 U.S.C. §id. § 1536(a)(4); 50 C.F.R. §1536(a)(4); 50 C.F.R. §
402.10. 402.10.
72 16 U.S.C. §
72 16 U.S.C. §
1536(c); 50 C.F.R. §1536(c); 50 C.F.R. §
402.12(b), (d). 402.12(b), (d).
73 16 U.S.C. §73 16 U.S.C. §
1536(b); 50 C.F.R. §1536(b); 50 C.F.R. §
402.14(e). 402.14(e).
74 16 U.S.C. §74 16 U.S.C. §
1536(b)(3); 50 C.F.R. §1536(b)(3); 50 C.F.R. §
402.14(h). 402.14(h).
75 16 U.S.C. §75 16 U.S.C. §
1536(b)(4); 50 C.F.R. §1536(b)(4); 50 C.F.R. §
402.14(i). 402.14(i).
76 16 U.S.C. §76 16 U.S.C. §
1539(a)(1)(B). 77 Id. § 1536(b)(4), (o)(2); 50 C.F.R. § 402.14(i)(1)(i)–(v). 78 The statute defines Secretary as the Secretary of the department in which NOAA is operating (Commerce) for purposes of regulation related to all members of the order Cetacea (whales and porpoises) and all members, except walruses, of the order Pinnipedia (seals). The statute defines Secretary as1539(a)(1)(B).
Congressional Research Service
9
Wind Energy: Offshore Permitting
anticipated amount of incidental take from the action, and any take consistent with the incidental take statement’s terms and conditions is not considered a prohibited taking.77
The MMPA prohibits, with certain exceptions, taking marine mammals in U.S. waters and by persons and vessels subject to U.S. jurisdiction on the high seas. The statute is jointly administered by the Secretary of Commerce (through NOAA/NMFS) and the Secretary of the Secretary of the
Interior (through FWS).78 The MMPA allows the Services to authorize the incidental taking of small numbers of marine mammals for a period of not more than five consecutive years.79 Such incidental take may be authorized only upon certain findings, in particular that the take will have a negligible impact on the species or stock.80
Implementing regulations establish procedures for administering the MMPA, including how to apply for authorization for incidental takes.81 These regulations set forth the procedures for submitting requests for such authorization to the NMFS or FWS, standards for review, and the form of the authorization.82Interior (operating through the FWS) with respect to all other marine mammals (manatees, dugongs, polar bears, sea otters, and walruses). 16 U.S.C. § 1362(12)(A).
79 Id. § 1371(5)(A). 80 Id. § 1371(5)(A)(i). 81 50 C.F.R. pt. 18 (FWS regulations); 50 C.F.R. pt. 216, Subpart I (NMFS regulations). 82 50 C.F.R. §§ 18.27, 216.31–216.47.
Congressional Research Service
9
Wind Energy: Offshore Permitting
The MBTA is the domestic law that implements U.S. obligations under separate treaties with
The MBTA is the domestic law that implements U.S. obligations under separate treaties with
Canada, Japan, Mexico, and Russia for the protection of migratory birds.83 The MBTA generally Canada, Japan, Mexico, and Russia for the protection of migratory birds.83 The MBTA generally
prohibits the taking, killing, possession, or transportation of, and trafficking in, migratory birds, prohibits the taking, killing, possession, or transportation of, and trafficking in, migratory birds,
their eggs, parts, and nests unless authorized by a permit. The rotating turbines of wind energy their eggs, parts, and nests unless authorized by a permit. The rotating turbines of wind energy
projects may unintentionally cause this type of harm to migratory bird species. To the extent this projects may unintentionally cause this type of harm to migratory bird species. To the extent this
prohibition applies to the incidental take of migratory birds by the operation of permitted wind prohibition applies to the incidental take of migratory birds by the operation of permitted wind
energy facilities, the Secretary of the Interior is authorized to determine if, and by what means, energy facilities, the Secretary of the Interior is authorized to determine if, and by what means,
the taking of migratory birds should be allowed.84 the taking of migratory birds should be allowed.84
FWS regulations at 50 C.F.R.
FWS regulations at 50 C.F.R.
SectionPart 21 establish permitting requirements for various purposes 21 establish permitting requirements for various purposes
and provide for several specific types of permits, such as import and export permits, banding and and provide for several specific types of permits, such as import and export permits, banding and
marking permits, and scientific collection permits.85 More general permits for special uses are marking permits, and scientific collection permits.85 More general permits for special uses are
also provided for under the regulations, although an applicant must make “a sufficient showing of also provided for under the regulations, although an applicant must make “a sufficient showing of
benefit to the migratory bird resource, important research reasons, reasons of human concern for benefit to the migratory bird resource, important research reasons, reasons of human concern for
individual birds, or other compelling justification.”86 However, unlike the ESA and the MMPA, individual birds, or other compelling justification.”86 However, unlike the ESA and the MMPA,
the MBTA does not explicitly authorize the incidental taking of birds related to a lawful activity, the MBTA does not explicitly authorize the incidental taking of birds related to a lawful activity,
such as by a wind energy project.87 such as by a wind energy project.87
77 16 U.S.C. §1536(b)(4), 1536(o)(2); 50 C.F.R. §402.14(i)(1)(i)-(v). 78 The statute defines Secretary as the Secretary of the department in which NOAA is operating (Commerce) for purposes of regulation related to all members of the order Cetacea (whales and porpoises) and all members, except walruses, of the order Pinnipedia (seals). The statute defines Secretary as Secretary of the Interior (operating through the FWS) with respect to all other marine mammals (manatees, dugongs, polar bears, sea otters, and walruses). 16 U.S.C. §1362(12)(A).
79 16 U.S.C. §1371(5)(A). 80 16 U.S.C. §1371(5)(A)(i). 81 50 C.F.R. Part 18 (FWS regulations); 50 C.F.R. Part 216, Subpart I (NMFS regulations). 82 50 C.F.R. §18.27; 50 C.F.R. §§216.31–216.47. 83 Birds that receive protection under the MBTA are listed at 50 C.F.R. §10.13. 84 16 U.S.C. §704. 85 50 C.F.R. §§21.11-21.26. 86 Id. at §21.27
Due to the FWS’s changing interpretations of the MBTA, it is unclear how the MBTA prohibitions apply to incidental taking of migratory birds from offshore wind energy projects. In 2017, the DOI Solicitor issued a legal opinion concluding that the “MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” 88 The legal memorandum noted that this broad interpretation included “take that is incidental to industrial or commercial activities.”89 Under the Trump Administration, the FWS withdrew and replaced its 2017 memorandum90 and issued a rule on January 7, 2021 that concluded that the “MBTA does not prohibit incidental take, including any resulting from wind-energy facilities.”91 However, under the Biden Administration, the FWS delayed the effective date of the rule until March 8, 2021 to review the rule and seeks public comment on the rule and whether to extend further the effective date of the rule.92 On May 7, 2021, FWS issued a proposed
83 Birds that receive protection under the MBTA are listed at 50 C.F.R. § 10.13. 84 16 U.S.C. § 704. 85 50 C.F.R. §§ 21.10–21.120. 86 Id. § 21.95. .
87 To address some of the uncertainty regarding incidental takes and compliance with the MBTA, in 2015, the FWS 87 To address some of the uncertainty regarding incidental takes and compliance with the MBTA, in 2015, the FWS
announced that it was considering developing an MBTA permitting program to authorize incidental takes of migratory announced that it was considering developing an MBTA permitting program to authorize incidental takes of migratory
birds. Migratory Bird Permits: Programmatic Environmental Impact Statement; Notice of Intent, 80 Fed. Reg. 30,032, birds. Migratory Bird Permits: Programmatic Environmental Impact Statement; Notice of Intent, 80 Fed. Reg. 30,032,
Congressional Research Service
10
Wind Energy: Offshore Permitting
Due to the FWS’s changing interpretations of the MBTA, it is unclear how the MBTA prohibitions apply to incidental taking of migratory birds from offshore wind energy projects. In 2017, the DOI Solicitor issued a legal opinion, concluding that the “MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” The legal memorandum noted that this broad interpretation included “take that is incidental to industrial or commercial activities.”88 Under the Trump Administration, the FWS withdrew and replaced its 2017 memorandum89 and issued a rule on January 7, 2021 that concluded that the “MBTA does not prohibit incidental take, including any resulting from wind-energy facilities.”90 However, under the Biden Administration, the FWS delayed the effective date of the rule until March 8, 2021 to review the rule and seeks public comment on the rule and whether to extend further the effective date of the rule.9130,035 (proposed May 26, 2015) (noting that the FWS was considering “whether a general conditional authorization can be developed for hazards to birds related to wind energy generation”). However, in 2018, the FWS announced that it was no longer pursuing the action). Migratory Bird Permits; Programmatic Environmental Impact Statement, Announcement, 83 Fed. Reg. 24,080 (May 24, 2018).
88 Memorandum M–37041 from Solicitor, Dir., DOI, to Dir., FWS 2 (Jan. 10, 2017), withdrawn and replaced by Memorandum M–37050 from Principal Deputy Solicitor, DOI, to Sec. DOI (Dec. 22, 2017).
89 Memorandum M–37041 from Solicitor, Dir., DOI, to Dir., FWS (Jan. 10, 2017), withdrawn and replaced by Memorandum M–37050 from Principal Deputy Solicitor, DOI, to Sec. DOI (Dec. 22, 2017).
90 Memorandum M–37050 from Principal Deputy Solicitor, DOI, to Sec. DOI (Dec. 22, 2017), vacated by Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020), 91 Regulations Governing Take of Migratory Birds, Final Rule, 86 Fed. Reg. 1134 (Jan. 7, 2021) (codifying DOI Solicitor’s Opinion M–37050) (setting an effective date of Feb. 8, 2021). 92 Regulations Governing Take of Migratory Birds; Delay of Effective Date, 86 Fed. Reg. 8715 (Feb. 9, 2021).
Congressional Research Service
10
Wind Energy: Offshore Permitting
rule to revoke the January 7 rule.93 After an opportunity for public comment, FWS finalized the proposed rule on October 4, 2021, revoking the January 7 rule effective December 3, 2021.94 On the same day, FWS issued an advanced notice of proposed rulemaking to develop regulations authorizing the incidental taking or killing of migratory birds.95 The FWS has yet to issue proposed rule.
With the delay and pending review of the 2021 rule, it is not clear that the permitting process
With the delay and pending review of the 2021 rule, it is not clear that the permitting process
under current regulations is either required or available to authorize the take of migratory birds by under current regulations is either required or available to authorize the take of migratory birds by
wind energy projects.wind energy projects.
9296 However, closely related contexts may provide some guidance on this However, closely related contexts may provide some guidance on this
issue. For example, the FWS is authorized to issue 30-year permits for projects with a low risk of issue. For example, the FWS is authorized to issue 30-year permits for projects with a low risk of
taking bald or golden eagles under the Bald and Golden Eagle Protection Act.taking bald or golden eagles under the Bald and Golden Eagle Protection Act.
9397 Also, the FWS Also, the FWS
has adopted voluntary guidelines for minimizing the wildlife impacts from wind energy turbines, has adopted voluntary guidelines for minimizing the wildlife impacts from wind energy turbines,
although the guidance is directed at land-based projects.although the guidance is directed at land-based projects.
9498 Although compliance with these Although compliance with these
voluntary guidelines does not shield a company from prosecution for MBTA violations, “the voluntary guidelines does not shield a company from prosecution for MBTA violations, “the
Office of Law Enforcement Office of Law Enforcement
and Department of Justice have used enforcement and prosecutorial discretion in the past regarding individuals, companies, or agencies who have made good faith efforts to avoid the incidental take of migratory birds.”95
30,035 (May 26, 2015) (noting that the FWS was considering “whether a general conditional authorization can be developed for hazards to birds related to wind energy generation”). However, in 2018, the FWS announced that it was no longer pursuing the action). Migratory Bird Permits; Programmatic Environmental Impact Statement, Announcement, 83 Fed. Reg. 24,080 (May 24, 2018).
88 Memorandum M–37041 from Solicitor, Dir., DOI, to Dir., FWS (Jan. 10, 2017), withdrawn and replaced by Memorandum M–37050 from Principal Deputy Solicitor, DOI, to Sec. DOI (Dec. 22, 2017).
89 Memorandum M–37050 from Principal Deputy Solicitor, DOI, to Sec. DOI (Dec. 22, 2017), vacated by Nat. Res.
Def. Council, Inc. v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020),
90 Regulations Governing Take of Migratory Birds, Final Rule, 86 Fed. Reg. 1134 (Jan. 7, 2021) (codifying DOI Solicitor’s Opinion M–37050) (setting an effective date of February 8, 2021). 91 Regulations Governing Take of Migratory Birds; Delay of Effective Date, 86 Fed. Reg. 8715 (Feb. 9, 2021). 92 See focuses its resources on investigating and prosecuting those who take migratory birds without identifying and implementing reasonable and effective measures to avoid the take.”99
Conclusion Interest in developing offshore wind energy resources continues to grow, and a number of projects are in various stages of development. The legal and regulatory framework to manage the issuance of permits for offshore development in its territorial sea and on the Outer Continental Shelf is still developing. The EPAct of 2005 was an important step in defining that framework, as it amended OCSLA to provide DOI with authority to grant offshore property interests for the purpose of wind energy development (exercised through BOEM). Additional laws that predate the 2005 EPAct enactment continue in force and also appear likely to remain a source of regulation. Further, states have a role under existing federal law in permitting offshore wind energy development, including ensuring that the projects are consistent with their plans for management of coastal zones.
93 Regulations Governing Take of Migratory Birds; Proposed Rule, 86 Fed. Reg. 24,573 (proposed May 7, 2021). 94 Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642 (Oct. 4, 2021). 95 Migratory Bird Permits; Authorizing the Incidental Take of Migratory Birds, 86 Fed. Reg. 54,667 (Oct. 4, 2021). 96 See 69 Fed. Reg.69 Fed. Reg.
31074 (June 2, 2004) (“Current regulations authorize permits for take of migratory birds for 31074 (June 2, 2004) (“Current regulations authorize permits for take of migratory birds for
activities such as scientific research, education, and depredation control. However, these regulations do not expressly activities such as scientific research, education, and depredation control. However, these regulations do not expressly
address the issuance of permits for incidental take.”). The DOI Solicitor Opinion M-37041, which concluded that the address the issuance of permits for incidental take.”). The DOI Solicitor Opinion M-37041, which concluded that the
MBTA’s prohibition applies to incidental taking, is back in force since the federal district court vacated M-37050 MBTA’s prohibition applies to incidental taking, is back in force since the federal district court vacated M-37050
(which suspended and placed M-37041) and the 2021 rule that codified M-37050 is now delayed pending review of the (which suspended and placed M-37041) and the 2021 rule that codified M-37050 is now delayed pending review of the
rule. rule.
9397 16 U.S.C. §§ 16 U.S.C. §§
668-668d; 50 C.F.R. §668-668d; 50 C.F.R. §
22.26. 22.26.
94 U.S. Fish and Wildlife Service, Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines (May 2003) (available at http://www.fws.gov/windenergy/).
95 Id. at 6.
Congressional Research Service
11
Wind Energy: Offshore Permitting
Conclusion
Interest in developing offshore wind energy resources continues to grow, and a number of projects are in various stages of development. The legal and regulatory framework to manage the issuance of permits for offshore development in its territorial sea and on the Outer Continental Shelf is still developing. The EPAct of 2005 was an important step in defining that framework, as it amended OCSLA to provide DOI with authority to grant offshore property interests for the purpose of wind energy development (exercised through BOEM). Additional laws that predate the 2005 EPAct enactment continue in force and also appear likely to remain a source of regulation. Further, states have a role under existing federal law in permitting offshore wind energy development, including ensuring that the projects are consistent with their plans for management of coastal zones.98 U.S. FISH & WILDLIFE SERV., LAND-BASED WIND ENERGY GUIDELINES (Mar. 23, 2012), https://www.fws.gov/sites/default/files/documents/land-based-wind-energy-guidelines.pdf. The guidelines indicate an expiration date in 2021 but are still available on the FWS website as the current guidelines.
99 Id. at 6.
Congressional Research Service
11
Wind Energy: Offshore Permitting
Author Information
Adam Vann Adam Vann
Legislative Attorney
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material. copy or otherwise use copyrighted material.
Congressional Research Service
Congressional Research Service
R40175
R40175
· VERSION 1417 · UPDATED
12
12