Major Federal & State Approvals
Environmental Business Council of
New England
Land-Based Wind Energy
May 29, 2008
Ruth H. Silman, Esq.
Major Federal & State Approvals Overview
• Federal Regulatory Framework
• Typical Federal Permitting Requirements
• Federally Managed Lands
• State Regulatory Framework
• www.awea.org/sitinghandbook
Federal Regulatory Framework
• Executive Order 13212 – May 18, 2001
• The Energy Policy Act of 2005
• National Energy Policy of 2001 Report
• Federal Interagency Wind Siting Collaboration
Typical Federal Permitting Requirements
• National Environmental Policy Act (42 USC 4321)
– Federal agencies must assess the environmental effects of
their proposed actions prior to making decisions.
•
Federal lands (BLM Programmatic EIS)
•
Federal permits
– Categories for review
•
Categorical Exclusion
•
Environmental Assessment
•
Environmental Impact Statement
Typical Federal Permitting Requirements
• Endangered Species Act (16 USC 1531)
– Prevent extinction of fish, wildlife and plant species
– Implemented and enforced by US Fish and Wildlife Service
– Fundamental terms:
•
Endangered Species
•
Threatened Species
•
Critical Habitat
– Consultation, Incidental Take, Permits, Exceptions
Typical Federal Permitting Requirements
• Migratory Bird Treaty Act (16 USC 703)
– Protects over 800 species of migratory birds (not
necessarily threatened or endangered)
– Implemented and enforced by US Fish and Wildlife Service
– Review may be concurrent with Endangered Species Act
– Consultation required
– No permit for accidental impacts – strict liability, even
construed as criminal
Typical Federal Permitting Requirements
• Bald and Golden Eagle Protection Act (16 USC 668)
– Unlawful to “take, possess, sell, purchase, barter …
transport, export or import” bald eagle or golden eagle,
their parts, nests or eggs.
– Implemented and enforced by US Fish and Wildlife Service
– Review may be concurrent with ESA and MBTA
– No permit for accidental impacts – strict liability
– Golden Eagle Nest Take Permit is available
Typical Federal Permitting Requirements
• Department of Interior – Interim Guidance on Avoiding
and Minimizing Wildlife Impacts from Wind Turbines (May
13, 2003)
• March 13, 2007 – DOI announced formation of Wind
Turbine Guidelines Federal Advisory Committee (FACA)
– Recommendations and advice to DOI and FWS on
developing effective measures to protect wildlife resources
and enhance potential benefits to wildlife that may be
identified
Typical Federal Permitting Requirements
• Cultural and Paleontological Resources
– National Historic Preservation Act (16 USC 470) – Section
106 consultation
– Archaeological Resources Protection Act (16 USC 470aa)
– Native American Graves Protection and Repatriation Act
(25 USC 3001)
– Federal Land Policy Management Act (43 USC 1701)
Typical Federal Permitting Requirements
• Water Resources
– Clean Water Act – Section 404 (33 USC 1344)
•
Regulates discharge of dredged or fill materials into waters of
the United States
– Rivers and Harbors Act – Section 10 (33 USC 403)
•
Regulates obstructions to navigable waters of the United
States
Typical Federal Permitting Requirements
• Water Resources (continued)
– Clean Water Act – NPDES – Section 402 (33 USC 1342)
•
Regulates stormwater discharges into waters of the United
States
– Clean Water Act – Water Quality Certification – Section
401 (33 USC 1431)
Typical Federal Permitting Requirements
• Federal Aviation Administration (49 USC 44718)
– Jurisdiction over any object that may impact or interfere
with the navigable airspace or communications technology
used in aviation operations.
– Notice of Proposed Construction (Form 7460-1)
•
Structure greater than 200’ AGL OR if close to runway
•
Determination of No Hazard OR
•
Notice of Presumed Hazard
Typical Federal Permitting Requirements
• Electromagnetic Interference
– Turbines may interfere with radar systems
– Department of Defense issued a report – The Effect of
Windmill Farms on Military Readiness – Sept. 27, 2006
•
Wind farms located within radar line-of-sight of an air defense
radar facility may degrade the ability of the radar to perform its
intended function
•
Shadowing and increased “clutter”
Federally Managed Lands
• Bureau of Land Management
• Bureau of Reclamation
• Bureau of Indian Affairs
• Forest Service
• Natural Resource Conservation Service
• Department of Defense
• Fish and Wildlife Service
State Regulatory Framework
• Process varies widely from state to state
• State Energy Facility Siting Commissions/Public Utility
Commissions
– CT Department of Public Utility Control; CT Siting Council
– ME Public Utilities Commission
– MA Public Utilities Commission; MA EFSB
– NH PUC; NH OEP; NH Energy Facility SEC
– RI PUC; RI DPUC; RI EFSB
– VT Department of Public Service; VT Public Service Board
State Regulatory Framework
• State Environmental Impact Review (“Little-NEPAs”)
– Assess environmental consequences of project
– CT – CEPA – www.ct.gov/opm/site/default.asp
– MA - MEPA – www.mass.gov/envir/mepa
•
Greenhouse Gas Emissions Policy & Protocol
State Regulatory Framework
• Hull Wind EEA #14161 - Secretary’s Certificate on ENF
– Up to 4 off-shore wind turbines – Maximum of 15 MW
– Project will displace approx. 26,050 metric tons/year of CO2
– Certificate requires EIR to indicate
•
How GHG emissions displacement was calculated and to do
so in short tons/year
•
Provide information on data sources and/or models
State Regulatory Framework
• Endangered Species
• Wetlands and Waterways
• Historic Preservation and Cultural Resources
• Stormwater
• Agricultural Production
• State-Owned Lands
Questions?
Ruth H. Silman, Esq.
rsilman@nixonpeabody.com
617-345-6062