Over the past couple decades, demand for alternative energy sources has soared domestically and internationally. To protect natural resources, provide oversight, and drive the shift to renewable energy, the federal government and states have crafted and employed a myriad of regulations that developers must consider in developing, permitting, and operating renewable energy projects. Having overseen the permitting of several large-scale offshore wind projects, including the first offshore wind farm in the United States, our team has learned some valuable lessons that can shed light on the complex permitting process.
How States Use Coastal Management Plans
The passage of the Coastal Zone Management Act in 1972 (CZMA) provided states with an incentive to develop comprehensive plans to manage their coastal zones and balance competing demands such as residential development, recreational, commercial, and industrial uses, like offshore wind and gas development, and protection of natural resources. The “coastal zone” includes the waters adjacent to the state’s coastline extending out to the three nautical mile limit and inward to the extent necessary to control the shoreline. The National Oceanic and Atmospheric Administration (NOAA) oversees implementation of the act and has authority to approve and monitor states’ coastal management plans and policies. States with coastal management plans have the ability, through what is called a federal consistency review, to weigh in on federal actions, including permitting decisions, and even halt projects if the proposed actions are not in line with the state’s own approved coastal management plan. We have seen federal consistency review become a powerful tool for states to review offshore wind projects, even when those projects are located in federal waters.
How States Use Federal Consistency Reviews
States with approved coastal management plans can conduct a federal consistency review when federal actions will have “reasonably foreseeable” effects on any land or water use or natural resource of the coastal zone. This review asks whether or not the proposed actions are consistent with the enforceable policies of a state’s federally approved coastal management plan. Federal actions subject to consistency review include federal agency activities and private activities that require a federal license or permit. For example, because an offshore wind farm requires dredging work to lay and bury electrical cables and therefore needs a permit from the Army Corps of Engineers, that permit will have to go through a federal consistency review process. It also includes outer continental shelf exploration, development, and production, which is where the offshore wind farms themselves come in. Even though the offshore wind farm will receive final approval and permitting from the federal Bureau of Ocean Energy Management (BOEM), the projects will still require state review through the federal consistency process.
This point is key. Offshore wind is subject to extensive scrutiny at the federal level through multiple regulatory regimes. For example, although BOEM serves as the lead federal permitting agency, projects also require environmental review and assessment through the National Environmental Protection Act process and review with respect to historically, culturally, and archeologically sensitive resources through the National Historic Preservation Act, to name two. State review under the CZMA requires projects to demonstrate their consistency with a separate set of state policies. What’s more, based on their location, offshore wind projects may be subject to federal consistency review in multiple states. This adds additional layers of regulatory review, time, and resources for projects to navigate as they work towards approval.
Impact of Federal Consistency Reviews on Offshore Wind Projects
Depending on the location of the project and states involved, a project may be required to go through federal consistency review. In other instances, projects may volunteer to undergo the process in an effort to build goodwill and avoid potentially lengthy disputes over CZMA applicability. Determining whether to volunteer for federal consistency requires knowledge not only of the state’s policies, but also how a state has applied them, the types of information the state may request in connection with its consistency review, and the timing impacts to the project of going through federal consistency review.
Once in a federal consistency review, companies working on offshore wind projects need to consult early and often with states regarding their policies and how to meet them to ensure timely review and, ultimately, concurrence. Collaboration is key during this process. Project proponents need to have a multidisciplinary team of subject matter experts to evaluate a wide range of potential impacts that may come up during federal consistency review, including specialists knowledgeable on project engineering, marine and benthic habitats, fisheries, marine mammals, and the fishing industry. These subject matter experts provide valuable insight in describing how a project meets the state’s coastal policies and demonstrating the project’s avoidance or mitigation of potential impacts.
Given the urgency of getting offshore wind and other renewable energy projects online to help meet federal and state renewable energy and greenhouse-gas emissions targets, project-permitting delays can prove especially problematic. Having an experienced team to work through the complex regulatory regimes can help streamline the process, strengthen communication with stakeholders, and get projects through the permitting process more efficiently.
Hinckley Allen’s Environmental and Energy Practice Groups have deep experience in guiding clients through federal consistency reviews and have conducted these reviews for many years for both offshore wind and other types of energy projects, including LNG and liquefaction projects.
