Major Federal & State ApprovalsMajor 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.com617-345-6062