Tuesday, October 20, 2020
In 2005, Congress handed the Power Coverage Act of 2005 (Pub. L. 109-58) (the EPAct), which (in related half) amended the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1337 et seq.) to authorize the Division of Inside to problem laws governing improvement of vitality from offshore sources apart from oil and fuel. See EPAct, Sec. 388. “The Secretary of Inside delegated to the Bureau of Ocean Power Administration (BOEM) the authority to manage actions below part 388(a) of the EPAct.” 30 C.F.R. § 585.100. In 2009, BOEM first issued laws governing actions that “[p]roduce or help manufacturing, transportation, or transmission of vitality from sources apart from oil and fuel[.]” 30 C.F.R. § 585.100(a).[1] BOEM implements its authority to problem offshore wind leases pursuant to those laws in 4 phases,[2] every of which is mentioned briefly beneath.
Planning and Evaluation. Through the planning and evaluation part, BOEM engages in consultations with events, together with state and federal authorities businesses, to establish offshore areas which can be appropriate for wind vitality leasing. See BOEM Regulatory Framework Web site. Throughout this part, BOEM additionally conducts preliminary environmental analyses, together with analyses below the Nationwide Environmental Coverage Act (NEPA).[3]
Leasing. The leasing part of the method leads to the issuance of wind leases. See BOEM Regulatory Framework Web site. Though the EPAct authorizes lease issuance on both a aggressive or noncompetitive foundation, the laws prioritize a aggressive leasing course of. See 30 C.F.R. § 585.201 (“BOEM will problem leases on a aggressive foundation .… Nonetheless, if [BOEM] decide[s] after public discover of a proposed lease that there isn’t any aggressive curiosity, [it] will problem leases noncompetitively[.]”). BOEM makes use of “auctions to award leases on a aggressive foundation.”[4] 30 C.F.R. § 585.211. Aggressive lease gross sales contain a collection of steps, together with requires info and nominations,[5] identification of the lease space (by further environmental analyses), publication of a proposed sale discover, and publication of a last sale discover. Id.[6] Potential lessees “might submit an unsolicited request for a … lease” within the absence of a aggressive lease sale. 30 C.F.R. § 585.230. Upon receipt of an unsolicited request, BOEM will “problem a public discover of a request for curiosity” to find out whether or not there’s a aggressive curiosity within the proposal. 30 C.F.R. § 585.231(b). If there may be aggressive curiosity, then BOEM will provoke the aggressive bidding course of; if there isn’t any aggressive curiosity, then BOEM will think about the request and “might supply [] a noncompetitive lease.” 30 C.F.R. § 585.231(d)-(f). Lease issuance doesn’t instantly authorize the lessee to assemble amenities; as a substitute, as soon as a lease is issued, the lessee might conduct web site evaluation research, develop a plan to assemble wind vitality amenities, and search BOEM’s approval for improvement of the lease space. See BOEM 2020-025, Winery Wind 1 Offshore Wind Power Venture, Complement to the Draft Environmental Affect Assertion [hereinafter Vineyard Supplemental Draft EIS], p. A-3 (June 2020) (explaining that “business wind vitality lease[s] [] give[] the lessee the unique proper to hunt BOEM approval for the event of the lease space.”).[7]
Website Evaluation. After lease issuance, the lessee of a business lease has one yr (the “preliminary time period”) to organize and submit a Website Evaluation Plan (SAP), 30 C.F.R. § 585.235(a)(1), which units forth the lessee’s proposal to assemble a meteorological tower or buoys on the leased space. If BOEM well timed receives an SAP that satisfies the regulatory necessities, then the preliminary time period is prolonged for the time frame “essential for [BOEM] to conduct technical and environmental critiques[.]” Id. If BOEM approves the SAP, then the lessee might undertake web site evaluation actions on the leased space, together with set up of the meteorological tower or buoys, in addition to further web site characterization analyses (e.g., animal, archeological).[8] Typically, lessees have as much as 5 years after approval of an SAP to undertake the permitted web site evaluation actions and to submit a Development and Operations Plan (COP). 30 C.F.R. § 585.235(a)(2) (“A business lease can have a web site evaluation time period of 5 years to conduct web site evaluation actions and to submit a COP[.]”).[9] The COP incorporates the lessee’s detailed plans for developing and working a wind vitality challenge on the leased space. If BOEM well timed receives a COP that satisfies the regulatory necessities, then the five-year web site evaluation time period “will likely be robotically prolonged for the time frame essential for [BOEM] to conduct technical and environmental critiques of the COP[.]” Id. “COP submittal triggers a project-specific NEPA evaluation” (together with an Environmental Affect Assertion or an Environmental Evaluation), after which “BOEM might approve, approve with modifications, or disapprove a lessee’s COP.” Winery Supplemental Draft EIS, p. A-3. (The time frames for submission of an SAP and COP could also be prolonged.)
Development and Operations. If BOEM approves the COP, then the lessee of a business lease “can have an operations time period of 25 years [beginning on the day after BOEM approves the COP], until a long term is negotiated[.]” 30 C.F.R. § 585.235(a)(3). Through the operations time period, the lessee might “assemble and function wind turbine mills and related amenities[.]” Winery Supplemental Draft EIS, p. A-3. The operations time period could also be prolonged by a lease renewal or a suspension of the operations time period. 30 C.F.R. § 585.235(a)(4).
Winery Wind Lease.
A short assessment of the historical past and present standing of the Winery Wind LLC (Winery Wind) lease is illustrative of the method summarized above. Via the aggressive leasing course of, BOEM issued a business lease to Winery Wind in March 2015; the lease is designated as Lease OCS-A 0501. Winery Supplemental Draft EIS , p. ES-1. Beneath the lease, Winery Wind intends to assemble, function, and finally decommission an 800-megawatt wind vitality facility offshore Massachusetts. Id. See additionally 85 Fed. Reg. 35952, 35953 (June 12, 2020).
Winery Wind initially submitted its SAP to BOEM in March 2017 however subsequently revised that submission on a number of events; BOEM has since permitted the SAP.[10] Winery Wind submitted its COP to BOEM in December 2017.[11] BOEM printed a Draft Environmental Affect Assertion (DEIS) regarding Winery Wind’s COP in December 2018, and subsequently held public conferences and solicited public feedback on the DEIS.[12] The DEIS analyzed potential impacts of the proposed challenge and varied alternate options to the proposal on wildlife, air and water high quality, socioeconomic circumstances, and so forth. Winery Wind submitted an up to date COP in January 2020 and once more in March 2020. See BOEM, Winery Wind, https://www.boem.gov/vineyard-wind. On June 12, 2020, BOEM printed a Supplemental Draft Environmental Affect Assertion, which “analyzes moderately foreseeable results from an expanded cumulative actions state of affairs for offshore wind improvement, beforehand unavailable fishing knowledge, a brand new transit lane various, and modifications since publication of the [DEIS]” to Winery Wind’s proposed challenge. Winery Supplemental Draft EIS, p. ES-1. Public conferences concerning the Supplemental Draft Environmental Affect Assertion had been held in June and July 2020, and the interval to submit feedback on the Supplemental Draft Environmental Affect Assertion closed on July 27, 2020. BOEM contemplates publishing a last Environmental Affect Assertion in November 2020 and publishing a File of Resolution in response to the COP in December 2020. See BOEM Supplemental Draft EIS Presentation, slide 29. The File of Resolution will announce whether or not BOEM approves Winery Power’s COP.
Conclusion.
In sum, improvement of an offshore wind challenge below BOEM’s regulatory framework is a multiyear, multistep course of involving rigorous planning, environmental analyses, and coordination amongst professionals throughout many fields of experience, together with (for instance) environmental professionals who present enter on substantive analyses carried out below NEPA and different statutes, engineers concerned in planning for the constructing and operation of wind vitality amenities, enterprise professionals who analyze the monetary elements and dangers of wind vitality tasks, and authorized professionals who present recommendation on navigating every stage of BOEM’s leasing course of (and on a wide range of regulatory compliance points through the lifetime of a lease). Winery Wind’s expertise will probably function an vital instance for years to return concerning the best way to maneuver by BOEM’s advanced course of for business wind vitality leasing.
Footnotes
[1] BOEM’s laws had been up to date in 2011 and 2014. See 76 Fed. Reg. 64432 (Oct. 18, 2011) (laws up to date to mirror reorganization of Inside Division sub-agencies); 79 Fed. Reg. 21617 (April 17, 2014) (laws up to date to increase time inside which lessees should submit sure plans for BOEM approval, amongst different modifications).
[2] See BOEM, Regulatory Framework and Tips, https://www.boem.gov/renewable-energy/regulatory-framework-and-guidelines [hereinafter BOEM Regulatory Framework Website].
[3] Beneath NEPA, federal businesses should conduct an environmental influence evaluation earlier than enterprise a “main federal motion considerably affecting the standard of the human atmosphere[.]” 42 U.S.C. § 4332(C). NEPA is a procedural statute, which requires businesses to conduct environmental analyses however doesn’t dictate company decision-making.
[4] “So far, BOEM has auctioned off 16 leases — most below a aggressive public sale course of[.]” 20 Pratt’s Power Regulation Report § 8.04 (September 2020).
[5] At this step, potential lessees submit info, together with the situation of curiosity for a possible lease, an outline of the potential lessee’s goal, a common schedule of proposed actions, knowledge concerning wind vitality availability and environmental circumstances within the goal space, documentation supporting qualification, and so forth. 30 C.F.R. § 585.213. BOEM makes use of the knowledge collected by this step of the method to establish the lease space, develop an method for conducting environmental analyses and establishing leasing provisions, and put together varied environmental analyses (e.g., NEPA, CZMA, ESA, MMPA). 30 C.F.R. § 585.214.
[6] Beneath the laws, BOEM might problem both a “business lease” or a “restricted lease.” A business lease “specifies the phrases and circumstances below which an individual can conduct business actions,” together with (inter alia) “all actions related to the era, storage, or transmission of electrical energy or different vitality product from a renewable vitality challenge on the OCS [Outer Continental Shelf], and for which such electrical energy or different vitality product is meant for distribution, sale, or different business use[.]” 30 C.F.R. § 585.112. A restricted lease, however, “specifies the phrases and circumstances below which an individual might conduct actions on the OCS that help the manufacturing of vitality, however don’t consequence within the manufacturing of electrical energy or different vitality product on the market, distribution, or different business use exceeding a restrict specified within the lease.” Id. The dialogue above focuses on business leases.
[7] The Winery Supplemental Draft EIS is on the market at https://www.boem.gov/websites/default/information/paperwork/renewable-energy/Winery-Wind-1-Complement-to-EIS.pdf.
[8] “BOEM assumes that each lessee will plan to put in one meteorological tower or one to 2 meteorological buoys for web site evaluation.” Winery Supplemental Draft EIS, p. A-3.
[9] Lessees might submit the COP contemporaneously with the SAP. See 30 C.F.R. § 585.235.
[10] See BOEM, Winery Wind, https://www.boem.gov/vineyard-wind.
[11] See BOEM, Winery Wind Complement to the Draft Environmental Affect Assertion Public Conferences [the BOEM Supplemental Draft EIS Presentation], slide 11, accessible at https://www.boem.gov/websites/default/information/paperwork/renewable-energy/state-activities/VW-SEIS-Presentation.pdf.
[12] See BOEM 2018-060, Winery Wind Offshore Wind Power Venture, Draft Environmental Affect Assertion, (December 2018), accessible at https://www.boem.gov/websites/default/information/renewable-energy-program/State-Actions/MA/Winery-Wind/Vineyard_Wind_Draft_EIS.pdf. See additionally BOEM, Winery Wind, https://www.boem.gov/vineyard-wind.
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