USA Law and Practice Contributed by: David P. Flynn, Lindsey E. Haubenreich, Thomas F. Puchner and Dennis W. Elsenbeck, Phillips Lytle LLP
for exploration and development on an expe- dited basis. Offshore generation facilities are routinely being proposed in the offshore areas of coastal states throughout the country. The Block Island Wind Farm – the country’s first offshore wind farm – began operating off Rhode Island in 2016, and a number of other projects are in the development queue. The applicable laws for offshore facilities can be divided based on whether they are pro- posed for federal waters or state waters. Pursuant to the Submerged Lands Act of 1953, 43 USC Section 1301 et seq, states regulate coastal waters in the areas within three miles from shore. Federal regulatory authority is applied beyond that point. Section 388 of the EPAct gave the US Secretary of the Interior authority over offshore renewable energy facili- ties (including all energy resources other than oil and gas and minerals) in federal waters. In general, the DOI Bureau of Ocean Energy Man- agement (BOEM) issues leases, easements and rights of way for renewable energy development in federal waters pursuant to its regulations. Projects also typically require approval from the US Army Corps of Engineers under Section 10 of the Rivers and Harbors Act (RHA) (obstructions to navigation in “navigable waters”) and Sec- tion 404 of the CWA (discharge of dredged or fill material). As with onshore facilities, offshore federal actions that may affect the environment require compliance with NEPA. For offshore facilities within state jurisdiction, construction and operation of renewable gen- eration projects is governed by applicable state laws, including a state’s mini NEPA. State laws may also provide for the necessary easement, lease or other right to use state-owned land
underwater. On the federal side, such projects require federal RHA Section 10/CWA Section 404 permission (due to installation of facilities in navigable waters), which will also trigger com- pliance with NEPA. Finally, a CWA Section 401 State Water Quality Certificate will be needed for projects that require RHA Section 10/CWA Section 404 permits. Recently, the federal gov- ernment has taken actions to halt or eliminate approval and permits for offshore generation in federal jurisdictional waters, which is subject to ongoing litigation. 3.2 Obtaining Approvals to Construct and Operate Generation Facilities As noted, local, state and federal approvals may be required to site, construct and operate electrical generation facilities. In many states, the applicant will need a CPCN or its equivalent from the state utility commission. As part of the CPCN proceeding, or as a separate process, an applicant will likely be subject to review by a multitude of state agencies and authorities, including the relevant counties and municipali- ties, drainage districts, state natural and environ- mental agencies, transportation authorities and cultural heritage preservation offices. 3.3 Approvals to Construct and Operate Generation Facilities State, local and federal agency approval of generation facilities is contingent on the terms and conditions as determined by the applica- ble agencies in the review process. A com- pany seeking a generation facility permit must undergo review by numerous authorities, which may include local, state and federal agencies/ authorities. During such review, the applicable authorities often condition their approvals on certain modifications or considerations intend- ed to make the proposed project compliant with the relevant permitting standards, or otherwise
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