There is increasing interest in integrating renewable energy sources into the power grid in the United States. In particular, interest in offshore wind development is growing rapidly. Shortly after taking office, President Biden issued an executive order stating his goal to double offshore wind production by 2030.[1] With leases for offshore wind projects on the East Coast currently being issued, and the construction of two projects already approved, several others are likely to follow soon.[2] On the West Coast, opportunities for offshore wind development will likely occur as well, but there are critical state and federal permitting components to consider.
The Bureau of Ocean Energy Management (BOEM) is the federal agency responsible for permitting energy development activities on the outer continental shelf, which is the land lying seaward of state territorial waters. State territorial waters extend three miles offshore. Therefore, an offshore wind project will be subject to different state and federal permits depending on its location.
Multi-step Process
Projects on the outer continental shelf must undertake a multi-step federal leasing and permitting process. First, BOEM identifies offshore areas that could be suitable for wind development by issuing a Call for Information and Nominations. If there is enough interest and areas are identified in response to the call, BOEM will proceed with steps to identify the applicable lease area and proposed lease terms. Second, BOEM will issue a Proposed Notice of Lease Sale where interested wind energy developers can bid on the lease. On May 31, 2022, BOEM issued a Proposed Notice of Lease Sale identifying two potential lease areas in coastal Northern California.[3] Issuance of the lease, however, is not approval of an offshore wind project.
A Notice of Lease Sale expressly states that any subsequent development is required to follow a separate permitting and environmental review process. For example, a project must obtain BOEMs approval of a site assessment plan and, later, a construction and operations plan. Throughout this process, BOEM must conduct a National Environmental Policy Act (NEPA) environmental analysis and technical reviews, after which it may approve the construction and operations plan for the project.[4] As explained below, BOEM is not the only applicable agency because an offshore wind project will require permits from the U.S. Army Corps of Engineers and Environmental Protection Agency and must satisfy applicable state permitting requirements for transmission line connection, among other permits.
Navigating this permitting process takes extensive time and planning. For example, in March 2021, BOEM issued a Record of Decision approving Vineyard Wind, which was the first offshore wind energy project to proceed past the permitting stage.[5] Vineyard Wind will be an approximately 800 megawatt, commercial-scale wind energy facility with 84 or fewer turbines arranged in a grid-like array with spacing of one nautical mile between each turbine. The leasing and permitting process for Vineyard Wind took over five yearsBOEM issued an offshore lease to Vineyard Wind in 2015. Various private interest groups have now filed lawsuits claiming thatin addition to other deficienciesthe federal governments NEPA analysis is inadequate.[6]
As noted above, the U.S. Department of the Interior is proceeding with two lease areas off the coast of California.[7] BOEM and the State of Oregon are also conducting engagement activities to inform offshore wind energy leasing along the Oregon coast, and a call for Information and Nominations to determine interest in leases off the southern Oregon coast was published in April 2022.[8] On April 4, 2022, Seattle-based Trident Winds announced that it submitted an Unsolicited Lease Request to BOEM for an offshore wind project off Washingtons coast. For those of us familiar with Department of Interior leasing, we know it can be difficult to obtain leases by request or by application, depending on political interests within the applicable executive administration. To date, no outer continental shelf offshore wind leases have been issued on the West Coast.
West Coast Wind Projects
For West Coast wind projects on the outer continental shelf, BOEM will be the lead agency to review the projects environmental effects under NEPA. An offshore wind project, whether on the outer continental shelf or in state territorial waters, will also require authorizations or permits from a number of state and federal agencies. To connect transmission lines from turbines to the power grid on shore, a project will likely require a Clean Water Act Section 404 permit and a Rivers and Harbors Act Section 10 permit, both from the U.S. Army Corps of Engineers. The lead federal agency will also be required to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service about whether the proposed construction and operation might take (harm) wildlife protected under the Endangered Species Act (16 U.S.C. 1561 et seq.), the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), the Bald/Golden Eagle Protection Act (16 U.S.C. 668-668c), and the Migratory Bird Treaty Act (16 U.S.C. 703-712). Incidental take authorizations may be required for construction and operation of the project based on any of those consultations. (An incidental take permitting scheme does not currently exist under the Migratory Bird Treaty Act but is being developed.)[9]
A proposed offshore wind project in a states territorial waters, which extend from shoreline to three miles offshore, will not involve approvals from BOEM but will be subject to state permits and authorizations. For example, the Oregon Department of State Lands must issue an ocean renewable energy facility lease to authorize construction and operation of an offshore wind project in the state territorial sea.[10] In Washington, regulatory clarification will be necessary to permit offshore wind projects within the states territorial waters in light of current uncertainty under the Shoreline Management Act and Ocean Resources Management Act.[11] A project may also require a Clean Water Act Section 401 certification and an air quality permit for construction from the state if the project is proposed in the states territorial water. These are just some, but not all, of the state and federal permits that will likely be required.
Federal Permits
When obtaining the necessary federal permits, there are required local, state, and tribal consultations that are critical to evaluate and account for in any project development timeline. For example, under the National Historic Preservation Act agencies must determine whether the project has the potential to impact cultural or historical resources that may be eligible for or are listed in the National Register of Historic Places. Federal agencies are also required to consult with tribal governments that might be affected by a proposed project.
Importantly, treaties between some Native tribes on the West Coast and the United States have for certain tribes reserved the tribes right to fishing in the tribes usual and accustomed areas. For example, in Washington state, four Coastal Treaty Tribes (the Hhoh, Makah, and Quileute Tribes and the Quinault Nation) through treaties with the United States reserved hunting, fishing, and gathering rights to access and use the plants, mammals, fish, and other resources of the Olympic Peninsula, and the rights are exercised from Point Chehalis to the U.S.-Canada border and extend into the open ocean.[12] Under the treaties and case law, the tribes are co-managers of shared ocean resources, along with federal and state governments. A critical component of obtaining state and federal permits for an offshore wind project will be ensuring a robust consultation with any affected tribes.
In 2021, Grays Harbor Wind, a joint venture between the Quinault Indian Nation, Trident Winds, and EnBW North America, announced an offshore wind project offshore from Grays Harbor, Washington. The partnership intended to leverage the tribes unique treaty-reserved rights by proposing to construct an offshore wind project within the tribes usual and accustomed fishing grounds. This type of partnership could provide numerous advantages to offshore wind projects because it engages the most important stakeholders, triggers the federal governments fiduciary responsibility to tribes, and promotes tribal self-government. Those of us with experience permitting energy projects with tribes and tribal corporations know that these unique characteristics can provide a significant market advantage.[13] However, with Trident Winds recent lease request, it is unclear whether the Gray Harbor Wind joint venture is still a viable partnership.
Another critical component of the federal NEPA analysis will be considering the effects of an offshore wind project on West Coast commercial fisheries. Commercial fisheries, such as crab, halibut, and salmon fisheries, are robust industries on the West Coast. Commercial fisheries are also a significant industry on the East Coast. In fact, BOEM concluded in its NEPA analysis for Vineyard Wind that the expected impacts on commercial fisheries was moderate to major but mitigated because a direct compensation fund held in escrow was created to compensate for direct impacts to vessels and fishing interests.
Successfully permitting an offshore wind project on the West Coast, particularly in Oregon and Washington, will require a robust permitting strategy. The permitting hurdles on the West Coast will be similar to those on the East Coast: threatened and endangered species issues, fishing industry interests, effects to navigation, and successfully engaging with local stakeholders. In addition, West Coast projects will need to appropriately address treaty-reserved fishing rights of the tribes. Navigating these issues and interests will be critical to the ultimate success of any offshore wind project.
[1] Exec. Order No. 14008, 89 Fed. Reg. 7,619 (2021).
[2] BOEM Record of Decision, Vineyard Wind 1 Offshore Wind Energy Project Construction and Operations Plan (May 10, 2021); BOEM Record of Decision, South Fork Wind Farm and South Fork Export Cable Project Construction and Operations Plan (Nov. 24, 2021).
[3] 87 Fed. Reg. 32,443 (May 31, 2022).
[4] 30 CFR part 585.
[5] BOEM Record of Decision, Vineyard Wind 1 Offshore Wind Energy Project Construction and Operations Plan (May 10, 2021).
[6] Allco Renewable Energy Ltd. v. Haaland, case no. 1:21-cv-11171 (D. Mass. July 18, 2021); Ack Residents Against Turbines v. U.S. BOEM, Case No. 1:21-cv-11390-ADB (D. Mass. Aug. 25, 2021).
[7] 87 Fed. Reg. 32,443 (May 31, 2022).
[8] 87 Fed. Reg. 25,529 (Apr. 29, 2022).
[9] 86 Fed. Reg. 54, 667 (Oct. 4, 2021).
[10] Oregon Administrative Rules, chapter 141, division 140.
[11] RCW 43.143.010; RCW 90.58.020
[12] West Coast Ocean Tribal Caucus, Guidance and Responsibilities for Effective Tribal Consultation, Communication, and Engagement, (July 2020) available at https://www.boem.gov/about-boem/pacific-regional-collaboration.
[13] See, e.g., Dine Citizens Against Ruining our Environment v. Bureau of Indian Affairs, 932 F.3d 843 (9th Cir. 2019) (tribe and tribal corporation are necessary parties that cannot be joined absent a waiver of sovereign immunity); see also Deschutes River Alliance v. Portland General Electric Company, 1 F.4th 1153 (9th Cir. 2021).
Read more:
Opportunities for Offshore Wind Development on the West Coast - JD Supra
- BASF to Buy Stake in German Offshore Wind Farms From Vattenfall -- Update - MarketWatch - April 22nd, 2024 [April 22nd, 2024]
- Denmark Launches Massive Offshore Wind Auction | Offshore Wind - Offshore WIND - April 22nd, 2024 [April 22nd, 2024]
- rsted and OEG Renewables Form Offshore Wind Pact in US | Offshore Wind - Offshore WIND - April 22nd, 2024 [April 22nd, 2024]
- Vestas and Maersk team up for South Korean offshore wind - Recharge - April 22nd, 2024 [April 22nd, 2024]
- Denmark's offshore wind parks currently generate 2.7 gigawatts of electricity - The Mountaineer - April 22nd, 2024 [April 22nd, 2024]
- rsted Buys Sunrise Wind Stake from Eversource - Offshore WIND - April 22nd, 2024 [April 22nd, 2024]
- 'More non-turbine challenges' | GE hits back in New York round 3 offshore wind demise - Recharge - April 22nd, 2024 [April 22nd, 2024]
- 'Heart-breaking': Refugees once detained offshore by Australia warn the UK government not to push through its ... - The Albany Herald - April 22nd, 2024 [April 22nd, 2024]
- Hearing scheduled this week on bill to advance offshore wind - delawarebusinessnow.com - April 22nd, 2024 [April 22nd, 2024]
- Aker BP begins production from Hanz field offshore Norway - Offshore Technology - April 22nd, 2024 [April 22nd, 2024]
- Denmark launches its biggest offshore wind farm tender - The Caledonian-Record - April 22nd, 2024 [April 22nd, 2024]
- Vestas and Maersk to Build Offshore Wind Hub in South Korea | Offshore Wind - Offshore WIND - April 22nd, 2024 [April 22nd, 2024]
- U.S. Navy To Convert Oil Rigs Into Offshore Military Bases To Counter China In The Pacific - Marine Insight - April 22nd, 2024 [April 22nd, 2024]
- BASF seals deal to buy into gigascale Vattenfall offshore wind to power chemicals complex - Recharge - April 22nd, 2024 [April 22nd, 2024]
- First Moray West 14.7MW Offshore Wind Turbine Comes Up - Offshore Engineer - April 22nd, 2024 [April 22nd, 2024]
- NYSERDA concludes New York's third offshore wind solicitation without final awards - 4C Offshore - April 22nd, 2024 [April 22nd, 2024]
- Galp Energia says Namibia offshore field could contain 10B barrels of oil - Seeking Alpha - April 22nd, 2024 [April 22nd, 2024]
- Framework Agreement signed with rsted in the US - 4C Offshore - April 22nd, 2024 [April 22nd, 2024]
- A submerged concern: offshore wind cables - Martha's Vineyard Times - April 22nd, 2024 [April 22nd, 2024]
- Possible human smuggling operation thwarted offshore in South Florida - cw34.com - April 22nd, 2024 [April 22nd, 2024]
- Maersk sets sights on offshore wind logistics in South Korea - Splash247 - Splash 247 - April 22nd, 2024 [April 22nd, 2024]
- Brigantine, Ventnor respond to offshore wind suit dismissal - Press of Atlantic City - April 22nd, 2024 [April 22nd, 2024]
- Denmark launches 6GW offshore wind tender with an eye on production of green hydrogen and e-fuels - Hydrogen Insight - April 22nd, 2024 [April 22nd, 2024]
- Trump says he hates wind power at fundraiser with oil executives - The Washington Post - April 22nd, 2024 [April 22nd, 2024]
- Humboldt County Officials Headed to Massachusetts Next Week to Check Out Vineyard Offshore's Wind Farm - Lost Coast Outpost - April 22nd, 2024 [April 22nd, 2024]
- 3 More Offshore Wind Projects Bite the Dust - Heatmap - April 22nd, 2024 [April 22nd, 2024]
- Europe's First Commercial-Scale Floating Offshore Wind Farm Secures All Planning Approvals | Offshore Wind - Offshore WIND - April 22nd, 2024 [April 22nd, 2024]
- OEG Renewables lands US offshore wind contract with rsted - Energy Voice - April 22nd, 2024 [April 22nd, 2024]
- Vattenfall and BASF sign purchase agreement for 49 percent of Germany's Nordlicht offshore wind farms - Vattenfall - April 22nd, 2024 [April 22nd, 2024]
- House Republicans ask Gov. Moore to veto offshore wind financing bill - Ocean City Today - April 22nd, 2024 [April 22nd, 2024]
- Enterprise Products Partners Granted MARAD Port License For Biggest Offshore Oil Export Terminal In U.S. - Marine Insight - April 10th, 2024 [April 10th, 2024]
- RWE Wants to Expand Supply of Fiber Cables for Floating Offshore Wind - The Maritime Executive - April 10th, 2024 [April 10th, 2024]
- US unveils next steps in its 20242029 Gulf of Mexico oil & gas leasing program - Offshore Energy - April 10th, 2024 [April 10th, 2024]
- Romania adopts offshore wind energy law to get first megawatts by 2032 - Balkan Green Energy News - April 10th, 2024 [April 10th, 2024]
- Baltic Sea nations turn to Nato and EU to protect offshore infrastructure from Russian threats - Recharge - April 10th, 2024 [April 10th, 2024]
- Canadian Pension Fund to Consolidate Its Offshore Wind Holdings into UK-Based Reventus Power | Offshore Wind - Offshore WIND - April 10th, 2024 [April 10th, 2024]
- Australia urged to ensure its gas strategy features LNG opportunities - Offshore Energy - April 10th, 2024 [April 10th, 2024]
- Taiwan's offshore wind power moves forward. - 4C Offshore - April 10th, 2024 [April 10th, 2024]
- Siem Offshore lines up multi-year gig for 2016-built oil spill response vessel in Brazilian waters - Offshore Energy - April 10th, 2024 [April 10th, 2024]
- Poland's Largest Offshore Wind Project Readies for 2025 Auction | Offshore Wind - Offshore WIND - April 10th, 2024 [April 10th, 2024]
- New assignment for Wood in Trinidad and Tobago - Offshore Energy - April 10th, 2024 [April 10th, 2024]
- SalMar 'won't build offshore farms in Norway without ground rent tax' - FishFarmingExpert - April 10th, 2024 [April 10th, 2024]
- SLO County fishermen sue Coastal Commission, offshore wind companies. Weve got rights here - San Luis Obispo Tribune - April 10th, 2024 [April 10th, 2024]
- New floating offshore wind partnership committed to Celtic Sea - 4C Offshore - April 10th, 2024 [April 10th, 2024]
- Norwind Offshore's CSOV to Feature Seaonics Fully-Electric Crane - Offshore WIND - April 10th, 2024 [April 10th, 2024]
- Eversource's Offshore Wind Lessons Have Created A Buying Opportunity (NYSE:ES) - Seeking Alpha - April 10th, 2024 [April 10th, 2024]
- FERC approves collaboration between PJM, New Jersey to boost offshore wind - Daily Energy Insider - April 10th, 2024 [April 10th, 2024]
- April 10 Golden Knights vs Oilers NHL Offshore Betting Odds, Preview - The Latest Sports Betting News - OffshoreSportsbooks.com - April 10th, 2024 [April 10th, 2024]
- Arsenal vs Aston Villa EPL Offshore Odds, Preview, and Prediction - The Latest Sports Betting News - OffshoreSportsbooks.com - April 10th, 2024 [April 10th, 2024]
- O&Gs emissions reduction roadmap and the importance of refinery efficiency - Offshore Technology - April 10th, 2024 [April 10th, 2024]
- West Ham vs Fulham EPL Offshore Odds, Preview, and Prediction - The Latest Sports Betting News - OffshoreSportsbooks.com - April 10th, 2024 [April 10th, 2024]
- Liverpool vs Crystal Palace EPL Offshore Odds, Preview, and Prediction - The Latest Sports Betting News - OffshoreSportsbooks.com - April 10th, 2024 [April 10th, 2024]
- April 10 Astros vs Royals MLB Offshore Betting Odds, Preview - The Latest Sports Betting News - OffshoreSportsbooks.com - April 10th, 2024 [April 10th, 2024]
- RS helps propel offshore wind farm initiative in education sector - The Manufacturer - April 10th, 2024 [April 10th, 2024]
- Bournemouth vs Man United EPL Offshore Odds, Preview, and Prediction - The Latest Sports Betting News - OffshoreSportsbooks.com - April 10th, 2024 [April 10th, 2024]
- Grand National Offshore Odds, Preview, and Prediction (2024) - The Latest Sports Betting News - OffshoreSportsbooks.com - April 10th, 2024 [April 10th, 2024]
- Tyra, a State-of-the-Art Offshore Gas Hub in the North Sea - Total - April 10th, 2024 [April 10th, 2024]
- 50Hertz to start onshore works for Windanker offshore wind farm - Power Technology - April 10th, 2024 [April 10th, 2024]
- Fund manager Pelagic teams up with Borealis Maritime to expand offshore fleet - TradeWinds - April 10th, 2024 [April 10th, 2024]
- Another LNG carrier gets Silverstream's air lubrication tech at Seatrium - Offshore Energy - April 10th, 2024 [April 10th, 2024]
- VIDEO: EPS splashes USCG's first Heritage-class offshore patrol cutter - Naval Today - November 2nd, 2023 [November 2nd, 2023]
- N.J.s election focusing on abortion and offshore wind - WHYY - November 2nd, 2023 [November 2nd, 2023]
- Business Network for Offshore Wind changes name to Oceantic ... - WorkBoat - November 2nd, 2023 [November 2nd, 2023]
- Geotechnical Surveys Completed at Scottish 3.6 GW Floating ... - Offshore WIND - November 2nd, 2023 [November 2nd, 2023]
- Fitch downgrades Eversource outlook to 'negative' on uncertainty ... - Utility Dive - November 2nd, 2023 [November 2nd, 2023]
- Kongsberg & Solstad Offshore to Collaborate on Decarbonisation ... - The Maritime Executive - November 2nd, 2023 [November 2nd, 2023]
- Second BOEM in-person hearing on offshore wind generates ... - Ocean City Today - November 2nd, 2023 [November 2nd, 2023]
- NOV Earnings: Offshore Remains Central Performance Driver as ... - Morningstar - November 2nd, 2023 [November 2nd, 2023]
- Murphy eyes first oil in 2026 from offshore project in Southeast Asia - Offshore Energy - November 2nd, 2023 [November 2nd, 2023]
- CorPower Ocean's wave energy device weathers through two major ... - Offshore Energy - November 2nd, 2023 [November 2nd, 2023]
- Somerset offshore wind plant clears major hurdle - CommonWealth magazine - November 2nd, 2023 [November 2nd, 2023]
- In a 'world first,' autonomous giant drones are flying cargo to offshore ... - Electrek - November 2nd, 2023 [November 2nd, 2023]
- Port of VA Receives First Massive Offshore Wind Components - Chesapeake Bay Magazine - November 2nd, 2023 [November 2nd, 2023]
- HBA Future Energy to Build 532 MW Anma Offshore Substation - Offshore WIND - November 2nd, 2023 [November 2nd, 2023]
- PGE, rsted Gather Tier 1 Offshore Contractors for 1.5 GW Baltica 2 - Offshore WIND - November 2nd, 2023 [November 2nd, 2023]
- Philippine police unearth 'torture chamber' in sex den licensed as ... - The Straits Times - November 2nd, 2023 [November 2nd, 2023]
- CIP & Co Release Findings of Taranaki Offshore Wind Capability ... - Offshore WIND - November 2nd, 2023 [November 2nd, 2023]
- UK offshore wind stands up to Storm Ciaran - reNEWS - November 2nd, 2023 [November 2nd, 2023]
- Hatteras Offshore Open kicks off billfish series - The Coastland ... - The Coastland Times - May 18th, 2023 [May 18th, 2023]
- Anna Paulina Luna to feds: Study dangers of offshore wind turbines - Tampa Bay Times - May 18th, 2023 [May 18th, 2023]