RL32658 - Wind Energy: Offshore Permitting
1-May-2008; Adam Vann; 19 p.
Update: Previous Releases:
January 29, 2008
September 5, 2007
March 7, 2007; report by Aaron M. Flynn
May 25, 2006
Abstract: Technological advancements and tax incentives have driven a global expansion in the development of renewable energy resources. Wind energy, in particular, is now often cited as the fastest growing commercial energy source in the world. Currently, all U.S. wind energy facilities are based on land; however, multiple offshore projects have been proposed and are moving through the permitting process.
It is clear that the United States has the authority to permit and regulate offshore wind energy development within the zones of the ocean under its jurisdiction. The federal government and coastal states each have roles in the permitting process, the extent of which depends on whether the project is located in state or federal waters. Currently, no single federal agency has exclusive responsibility for permitting activities on submerged lands in federal waters; authority is instead allocated among various agencies based on the nature of the resource to be exploited and the type of impacts incidental to such exploitation. Likewise, in the wind energy context, several federal agencies will have a role to play in permitting development and operation activities.
The Army Corps of Engineers (Corps) has exercised jurisdiction over proposed offshore wind energy facilities under the Rivers and Harbors Act and the Outer Continental Shelf Lands Act. This regulatory action was challenged in Alliance to Protect Nantucket Sound v. United States Department of the Army. In that case, the U.S. Court of Appeals for the First Circuit upheld the Corps’ authority to permit a preliminary data collection tower in federal waters. The reasoning behind this decision might have been applied to the permitting of larger-scale wind energy projects, although arguments against an expansive reading of Corps authority remained viable. To address these legal uncertainties, Congress passed section 388 of the Energy Policy Act of 2005 (P.L. 109-58). This provision retains the role played by the Corps in permitting under the Rivers and Harbors Act but grants ultimate authority over offshore wind energy development to the Secretary of the Interior. The provision also contains various exemptions from the regulatory regime it establishes for projects that have received certain permits prior to the enactment of the Energy Policy Act of 2005. Regulations implementing this new grant of statutory authority are forthcoming and could bring additional and significant nuance to the regulatory process.
This report will discuss the disputes over Corps jurisdiction prior to enactment of the Energy Policy Act of 2005 as well as the current law applicable to siting offshore wind facilities. This report will be updated as events warrant.