USA Law and Practice Contributed by: David P. Flynn, Lindsey E. Haubenreich, Thomas F. Puchner, Dennis W. Elsenbeck and Zachary R. Hirschfeld, Phillips Lytle LLP
Projects may also implicate federal authority. Specifi- cally, where onshore projects involve federal lands, authorisation from the DOI’s Bureau of Land Manage- ment (BLM) or the US Forest Service may be required. Depending on potential impacts, involvement by vari- ous consulting agencies may be necessary under the Endangered Species Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act and the CWA. Where federal action is involved, environmental review under NEPA will also be necessary. Again, as it relates to fossil fuel projects, efforts are under way to open up additional federal lands for exploration and development on an expedited basis. Offshore generation facilities are routinely being pro- posed in the offshore areas of coastal states through- out the country. The Block Island Wind Farm – the country’s first offshore wind farm – began operating off Rhode Island in 2016. However, since then, off- shore wind development has endured policy, per- mitting, and economic challenges. To date, only two other offshore wind facilities have been energised: the Coastal Virginia Offshore Wind pilot in 2020 and South Fork Wind Farm off the coast of New York and Rhode Island in 2024. Several other projects have been pro- posed or are under construction, many of which have been stalled or subject to cancellation by the federal government. The applicable laws for offshore facilities can be divided based on whether they are proposed 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 the shore. Federal regulatory authority is applied beyond that point. Section 388 of the EPAct gave the US Secre- tary of the Interior authority over offshore renewable energy facilities (including all energy resources other than oil and gas and minerals) in federal waters. In general, the DOI Bureau of Ocean Energy Manage- ment (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 Riv- ers and Harbors Act (RHA) (obstructions to navigation in “navigable waters”) and Section 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, con- struction and operation of renewable generation pro- jects 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 navi- gable waters), which will also trigger compliance with NEPA. Finally, a CWA Section 401 State Water Qual- ity Certificate will be needed for projects that require RHA Section 10/CWA Section 404 permits. Recently, the federal government has taken actions to halt or eliminate approval and permits for offshore genera- tion 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 gen- eration 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 authori- ties, including the relevant counties and municipali- ties, drainage districts, state natural and environmen- tal 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 applicable agencies in the review process. A company seeking a generation facility permit must undergo review by numerous authori- ties, which may include local, state and federal agen- cies/authorities. During such review, the applicable authorities often condition their approvals on certain modifications or considerations intended to make the proposed project compliant with the relevant permit-
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