Opportunities for Offshore Wind Development on the West Coast – JD Supra

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).

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Opportunities for Offshore Wind Development on the West Coast - JD Supra