Legal Review and Permitting Requirements WIND ENERGY DEVELOPMENT AND OPERATIONS

1. Legal Review andPermitting RequirementsWIND ENERGY DEVELOPMENT AND OPERATIONS • Presentation by: M. Carol Bambery • Association Counsel

2. WIND ENERGY“The Fasted Growing Commercial Energy Source in the World” • Currently, U.S. wind-energy facilities are land-based, but several coastal states are exploring development.

3. Major Steps in Wind Project Development • Planning • Permitting • Financing • Power purchases and transmission agreements • Construction • Operation • Decommissioning

4. PERMITTING • Wind projects are required to obtain a permit from one or more governmental agencies. • A wind project typically can be permitted within 12 months. • Permitting entities at the federal, state, and local levels may have jurisdiction over a wind development. Usually, all three levels of government will be involved regardless of where the facility is sited. • We will look at three situations: • Permitting a facility on state or private land • Permitting a facility on federal land • Permitting a facility offshore

5. State/Private Lands • One or more state agencies may have siting or review responsibilities for wind developments. • State authorities may include: • Natural resource and environmental protection agencies • State historic preservation offices • Industrial development and regulation agencies • Public utility commissions

6. Local Laws and Regulations • In many states the primary permitting jurisdiction for wind farms is the local planning commission, zoning board, city council or county board of supervisors. Typically, these local jurisdictional entities regulate through zoning ordinances. In addition to local zoning approval, permitting under local jurisdiction may require a developer to obtain some form of local grading or building permit to ensure compliance with structural, mechanical and electrical codes.

7. Specific Permitting Considerations • Considerations that need to be addressed in permitting wind project whether they are large wind farms which sell power to utilities or single turbines to provide power to a single user: • Land use • Noise • Birds and other biological resources • Visual resources • Soil erosion and water quality • Public health and safety • Cultural and fossil resources • Solid and hazardous wastes • Air quality and climate

8. Land Use • State and local land use planners will consider whether a permit is compatible with existing and planned adjacent uses, whether it will change the overall character of the surrounding area, disrupt established communities , or physically intrude upon the landscape. Even if the proposed project is inconsistent or incompatible with existing land use plans, it may still be approved if the permitting agency grants a variance. • All agencies involved in reviewing and making land use decision on projects MUST coordinate and communicate with each other throughout the project. Essential that staffs work together during the permitting process so that any conditions or requirements are consistent and are monitored throughout the lifetime of the project.

9. NOISE • Noise is defined, for purpose of permitting projects, as any unwanted sound. Due to the wide variation in the levels of individual tolerance for noise, there is no completely satisfactory way to measure the subjective effects of noise, or of the corresponding reactions of annoyance and dissatisfaction. • Useful for comparison purposes to provide sound levels associated with common activities and situations. For example: • Civil defense siren 140 decibels Pain threshold • Ambulance siren 90 decibels Very loud • Freeway 70 decibels Loud • Kitchen with garbage disposal running disposal running - Loud • Vacuum cleaner 60 decibels Moderately Loud • Soft whisper 5 ft. 30 decibels Quiet • Under most conditions, modern turbines are quiet, generating primarily broad-band sound levels no higher than those of a moderately quiet room at distances of 750 to 1000 feet.

10. Visual Considerations • Potential for visual resource impacts is considered as part of the evaluation of land use compatibility. • The degree to which aesthetic impacts may become an issue during the project permitting process is a function of the value people place on the visual quality of the project setting. • Elements which may influence visual impacts include the spacing, design and uniformity of the turbines, markings or lighting, roads built on slopes and service buildings.

11. Soil Erosion and Water Quality • Land disturbance from construction and operation of the facility can remove vegetation and loosen soil particles, allowing them to be swept away by wind or water. • Wind-induced erosion can increase fine particulate matter in the air which can adversely impact human health and reduce visibility. • Water-induced erosion results in sedimentation which degrades water quality. • Spills resulting from project construction and operation activities, such as refueling heavy equipment, may also impact water quality.

12. Where to learn more about controlling erosion and runoff • Local conservation districts, the Natural Resource Conservation Service, and the appropriate city or county can provide guidance on development of a storm water management plan, calculating runoff flows and selecting control practices to ensure water quality is protected. • Local planning and permitting departments should have information on floodplain locations and expected flood levels and frequency. • The Federal Emergency Management Agency (FEMA) show foot by foot contours for most river/creek systems in U. S. These maps should be available at local land use planning agencies. • With appropriate precautions, the impact of wind projects on soil erosion and water quality should be minimal at most sites.

13. Solid and Hazardous Wastes • Waste materials will be generated during construction as well as operation of the wind farm. • If turbines are not well-designed and maintained, fluid leaks (gearbox oils, hydraulic and insulating fluids) at the turbine may occur, resulting in fluids not only dripping directly downward by flying off the tips of the blades and contaminating the ground below. • Some fluids may become hazardous wastes when spilled on the ground. • Must dispose of solid and hazardous wastes at a licensed disposal facility. • Hazardous Materials Management Plan should be drawn up to address avoidance, handling, disposal and cleanup. • Some permits have banned on-site repairs of construction and maintenance vehicles. Major turbine repairs may be required to be done off-site.

14. Air quality and climate • Wind generation is a non-combustion process relying on direct conversion of mechanical energy into electrical energy. Unlike conventional fossil-fired electric power plants there are no emissions from the generation process. • Federal, state and local air quality plans are concerned with particulate matter less than 10 microns in diameter, known as PM10. • Production of particulate matter is the only air quality impact likely to occur in conjunction with a wind farm, and is primarily associated with construction activities. • No negative long-term air quality impacts are likely to occur.

15. Federal Lands • The Bureau of Land Management (BLM) Lands in the Western U.S. are being inventoried for high-potential wind-energy resources.

16. Federal Lands • U.S. Fish and Wildlife Service has developed wind-energy development guidelines. • Applications for right-of-ways for wind-energy facilities must be made under the Federal Land Policy and Management Act (FLPMA). • FLPMA grants 3 types of wind-energy projects: • Site specific wind energy testing and monitoring right of way grant for individual towers with a term • Wind energy site testing and monitoring right of way grant for 3 years that may be renewed • Long-term development grants usually in the range of 30 – 35 years which is the useful life of the energy facility • Holder of the site testing and monitoring right of way grant establishes no right to development and is required to submit a separate application to BLM for analysis, review and decision.

17. Freedom of Information issues • Wind inventory data collected and held by the right of way grant hold is proprietary information and will be protected by the Privacy Act. • The information may be withheld under the Freedom of Information Act. • However, detailed wind data will be required to be provided to the BLM at the time an amended right of way application for development is submitted, to support the environmental analysis and review of the proposed development. • This data becomes public information for analysis and decision making purposes related to the processing of the amended right of way application for the development project.

18. Rent for right of way • Rent for commercial wind energy development right of way grant will consist of two components: • An annual minimum rent which runs around $2,365 per megawatt on public land and is based on the total anticipated installed capacity of the project, a capacity factor of 30%, a royalty of 3% and an average purchase price of 3 centers per kilowatt hour and • An annual production rent once the project is in commercial production.

19. Federal and State Permitting • For onshore wind projects on federal public lands, the Department of the Interior, through the Bureau of Land Management, has created a comprehensive regulatory program under the Federal Land Policy and Management Act, but no similarly comprehensive federal statutory or regulatory scheme exists for offshore wind energy development at this time, but one may be developed soon. • The Minerals Management Service, a part of the U. S. Department of the Interior, in accordance with the recently passed Federal Energy Bill, now has authority to grant easements and to charge lease payments from commercial offshore wind projects and will take over as the lead federal agency. • Also, the Army Corps of Engineers has undertaken a role in the federal permitting process, although some have questioned the Corps’ statutory authority to issue permits for wind energy facilities. States may also play a role in the permitting process in some.

20. OFFSHORE WIND ENERGY • NEW FOCUS: Moving away from land-based wind energy and looking to coastal projects in offshore waters

21. An offshore wind project is more than the platform and turbine. It includes cables, landfall of cable, substation, grid, interconnection and shipping, dredging and associated construction activity. Also, ongoing operation and maintenance includes the transport of employees by ship and helicopter and occasional hardware retrofits.

22. OFFSHORE WIND ENERGY

23. Coastal Water Jurisdiction • Strict federal and state laws govern offshore wind-farm development. Public concerns will also have to be allayed. In addition to any permitting requirements unique to offshore wind farm installations, the normal regulatory procedure for land-based wind farm interconnection to utility grids must then be followed. • First, mark out the various bodies of water the project activities can affect and then delineate the activities these projects represent such as the necessary permanent structures and various effects related to the operation of the project. • Bodies of waters are classified by: • (1) Navigability • Navigable Waters: all waters that are subject to the ebb and flow of the tide, including interstate wetlands, lakes, rivers, streams, and similar water bodies. • (2) Distance from shore – usually defined as the mean high tide line

24. State Waters: individual coastal states have jurisdiction over coastal waters that extend from the shoreline to 3 nautical miles U.S. Territorial Seas: waters extending 3 miles seaward to 12 nautical miles Federal Waters: waters that extend from the 3-mile line to the 200-mile economic exclusive zone boundary Exclusive Economic Zone: 12-200 miles International Waters: beyond 200 miles Coastal Water Jurisdiction: Distance from Shore

26. Major Issues AffectingCoastal Jurisdiction • Coastal Zone Management Act • Leasing Submerged Lands • Navigable Waters

27. Coastal Zone Management Act • Federal activities affecting land or water resources located in the coastal zone must be “consistent” with the adjacent state’s federally approved state coastal management plan. • National Oceanic and Atmospheric Administration’s Office (NOAA) administers the Act. 34 coastal states have federally approved state coastal management plans managing over 99% of the nation’s shoreline. • If state declares activity “inconsistent,” the state can disallow the activity. • The Secretary of Commerce can override the state’s objection.

28. Leasing Submerged lands • Coastal states own submerged lands up to 3 nautical miles from the shoreline and can lease state-owned submerged lands for a fee. • Parties wishing to lease lands beyond the 3-mile mark must lease from the Department of the Interior.

29. Navigable Waters • State and federal governments share jurisdiction over coastal waters. There may also be an overlap of authority: • U.S. Army Corps of Engineers has regulatory jurisdiction over U.S. navigable waters, Section 10, federal Rivers and Harbors Act.. • Individual coastal states also have jurisdiction over activities within the 3-mile zone. • Minerals Management Service, Department of Interior, lead federal agency. • .

30. Federal Regulatory Agencies • U.S. Army Corps of Engineers • U.S. Environmental Protection Agency (EPA) • National Marine Fisheries Service • Minerals Management Service (MMS) • U.S. Fish and Wildlife Service

31. NEPA • National Environmental Policy Act (NEPA). NEPA’s intent is to have all federal agencies consider environmental issues and potential impacts by opening the permitting decision making process to all stakeholders, including state and local agencies, public, private organizations, and tribal governments. An offshore wind farm will require federal permits so the NEPA process will be triggered. • First, the federal action’s environmental impact must be assessed. If there is a significant impact, an Environmental Impact Statement (EIS) is needed. All environmental statutes and regulations are taken into consideration during the preparation of an EIS. These include:

32. Federal Laws and Federal Regulatory Agencies • Rivers and Harbors Act • Outer Continental Shelf Lands Act • Submerged Lands Act of 1953 • Coastal Zone Management Act • Clean Water Act • Magnuson Fishery Conservation and Management Act • Fish and Wildlife Coordination Act • Migratory Bird Treaty Act • Endangered Species Act • Federal Aviation Administration

33. State authority over offshore structures • In addition to any federal requirements, any party interested in developing an offshore structure in a particular state needs to comply with that state’s statutes and regulations.

34. Example: North Carolina • North Carolina Environmental Policy Act of 1971 (NCEPA) • Coastal Area Management Act • North Carolina Dredge and Fill Act • North Carolina Public Utilities Act • Submerged Land Leases • North Carolina Archives and History Act

35. State Regulatory Agencies • States play a significant role. For example, under the Coastal Zone Management Act, state programs: • designate land and water conservation measure • address sources of water pollution

36. Looking at Oil and Gas Permitting • Offshore wind farms share similarities to oil/gas platforms: • Are energy-related activities • Require the installation of • structures in U.S. navigable waters • Are potentially visible from the • shoreline • May affect the costal zone

37. SUMMARY • There is still much to be learned about the economic, social, and environmental impacts of wind energy. • Wind energy, especially wind energy produced by using off-shore platforms, may become a viable energy source for the future. • Thanks goes to the National Wind Coordinating Committee for fine handbook, Permitting of Wind Energy Facilities and to North Carolina’s Offshore Wind Approval Process guidelines.

38. Questions?