Permitting Policies and Pitfalls of Offshore Wind

1. Permitting Policies and Pitfalls of Offshore Wind Presented ByKatherine A. Roek STOEL RIVES LLP May 5, 2009

2. To order any of these books, please contact: Katherine A. Roek * 612.373.8820 karoek@stoel.com * www.stoel.com 2

3. Why are we discussing offshore? 3

4. Overview • Offshore vs. Onshore permitting issues • Federal jurisdictional waters vs. State jurisdictional waters • State of offshore wind development in the U.S. • What does the future hold? 4

5. Permitting Issues ONSHORE OFFSHORE • Land interest acquisition • Local zoning • Avian impacts • Other wildlife/endangered species • Wetlands • Aviation • Visual impacts • Noise/human health consequences • Marine mammals • Fish • Navigation • Existing uses (commercial fisheries, crabbing) • Electromagnetic field • Creation of new environments / adaptive management • Water quality • Ease of removal • Military radar 5

6. Siting Authority – Federal Waters Outer Continental Shelf (OCS) under the jurisdiction of: • Minerals Management Service (MMS) • Federal Energy Regulatory Commission (FERC) 6

7. Siting Authority – State Waters • Atlantic/Pacific coasts • up to 3 nautical miles offshore • Great Lakes • each state out to center of lake • Gulf of Mexico (Texas, Florida) • 9 nautical miles offshore 7

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10. Offshore Wind Development –Federal Laws • Submerged Lands Act of 1953 • Coastal Zone Management Act • National Environmental Policy Act • Endangered Species Act • Clean Water Act 10

11. Offshore Wind Development –Federal Laws • Others • Fish & Wildlife Coordination Act • Rivers & Harbors Act • Migratory Bird Treaty Act • Marine Mammals Protection Act 11

12. Offshore Wind Development –State Laws • State environmental policy act (if applicable) • Water quality • Endangered species / wildlife protection • Commercial fishing / crabbing • Coastal zone management • Marine safety • Onshore issues (cables, waterfront development) • Water rights (?) 12

13. Federal – MMS Leasing Regulations April 22, 2009 • MMS issued final regulations for granting competitive / non-competitive commercial leases, limited leases, rights-of-way and rights-of-use and easements on the OCS. • Finalized proposed regs that were issued July 9, 2008 13

14. Federal – MMS Leasing Regulations • Types of leases: • Commercial • Energy development • ~30 years • Competitively bid • Limited • Data gathering • ~5 years • BUT: limited power sale permitted 14

15. Federal – MMS Leasing Regulations • Regulations also specify: • Required Financial Assurance • Rental Amounts and Operating Fees • Environmental Review • Changes from proposed rules include: • Allowance of limited power production during limited lease • Addition of multiple-factor auction format with respect to bidding process 15

16. MMS Limited Leases Issued July 2008 • MMS issued limited leases (under interim policy) to companies to conduct data collection and technology assessment activities on the OCS. • Does not authorize energy production. 16

17. MMS Limited Leases Issued • Wind energy recipients of leases include: • Fisherman’s Energy (NJ, RI) • Deepwater Wind (NJ, RI) • Southern Company (GA) • Bluewater Wind (DE, NJ, NY, RI) 17

18. Interaction between MMS & FERC • Federal Power Act • authorizes FERC to issue licenses for non-federal hydropower projects • OCSLA • authorizes MMS to issue leases/ROW on OCS 18

19. Interaction between MMS & FERC • April 9, 2009 • FERC-MMS signed a Memorandum of Understanding. • FERC will issue licenses for hydro projects on OCS • MMS will issues leases, easements, and ROW on OCS 19

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21. Current U.S. Projects • Cape Wind (130 turbines, 420 MW, Nantucket) • January 16, 2009: Final EIS (2,800-pages)issued by MMS. Awaiting lease from MMS. • January-March 2009: Received consistency determination, composite approval from state. 21 SOURCE: GreenPeace USA

22. Current U.S. Projects • Bluewater Wind (450 MW, Delaware) • July 31, 2008: PPA with Delmarva Power approved by DE Public Service Commission. • Evaluating wind resources, preparing environmental and permitting documents for submission to MMS. 22

23. Current U.S. Projects • Deepwater Wind • January 2009: agreement with RI to construct two-phased project: 5-8 turbines in state waters (2012); utility-scale (~400 MW) in federal waters (TBD). • October 2008: selected by NJ Board of Public Utilities to build 350 MW wind farm in federal waters. Includes $19 million in state grant monies (2013). 23

24. Current U.S. Projects • Wind Energy Systems Technology (WEST) • 2005: Signed lease with TX GLO for 150 MW project. • Meteorological tower off of Galveston has compiled almost two years of data. • Great Lakes Energy Development Task Force (off coast of Cuyahoga County, OH – Lake Erie) • Has begun resource assessment. • Spring 2009: feasibility study. 24

25. Current U.S. Projects • Long Island Power Authority / Con Edison • Joint FS for interconnection of 350 MW project 13 miles offshore of Long Island, with the ability to extend up to 700 MW. • Interconnect request filed w/ NY ISO. • April 2009: Wind collaborative of state, municipal entities interested in supporting / purchasing power from the project. 25

26. State Initiatives • Wisconsin • January 2009: Public Service Commission –prepared Feasibility Report • Working with Michigan on potential cooperation • Michigan • May 2008: Offshore Wind Permitting Dry-Run • Great Lakes Wind Council created by Governor to identify prudent locations for offshore wind farms. 26

27. State Initiatives • Rhode Island • Ocean Zoning • Selected Preferred Developer • Legislation to Facilitate PPAs • New Jersey • Blue Ribbon Panel to Evaluate Offshore Wind • Ocean Environmental Assessment • Selected Preferred Developer • Created Energy Master Plan 27

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29. Resources • www.mms.gov/offshore/alternativeenergy/regulatoryinformation.htm • www.awea.org/faq/wwt_offshore.html • www.psc.wi.gov • www.michigan.gov/dleg • www.ri.gov • www.nj.gov 29

30. Thank you! Visit our booth - #3148! Katherine A. Roek (612) 373-8820 karoek@stoel.com www.stoel.com 30