Environmental Permitting for Wind Energy Facilities

1. Environmental Permitting for Wind Energy Facilities Anntonette Alberti, JD Tetra Tech, Inc.

2. Agenda • Preliminary considerations • Local approvals • State approvals • Federal Approvals

3. Preliminary Permitting Considerations • You want to get permits for an economically constructable project: • This is most important: Permits should provide you with the permission to build what will ultimately be on your construction drawings • Ideally, micro-siting will occur before, not after, the submittal of permit applications

4. Preliminary Permitting Considerations • Permits will cover all project facilities • Turbine locations, crane pads, and associated work space • Access roads, public road improvements • Electrical collection system and project transmission lines • Substations, switch yards and point of interconnect • O&M building, visitor kiosks, parking areas • Construction related facilities, concrete batch plants, disposal areas • Mitigation areas

5. Potential Construction Impacts, continued • Permits often require studies that must begin well before permit applications are submitted • Avian, bat, and other wildlife • Protected plants and noxious weeds • Wetlands and water bodies • Cultural resources • Noise (Sound) • Visual Impact and Shadow Flicker • Telecommunications • Aviation • Geotechnical • Etc.

6. Local Approvals • Most projects will require at least one important local approval • Special use or conditional use permits • Wind overlay zone approvals • Site plan approvals • Building permits • Electrical permits • Road use or improvement permits • Variances • Some state siting boards are authorized to override local objections • But most must demonstrate that the project would be consistent with local ordinances & there is no reasonable objection to the development of the project.

7. Local Approvals • The need for local approvals and the process for obtaining approvals varies throughout the country. • In some areas, the local approval process will be time-consuming and the project will be subject to close scrutiny. In contrast, some municipalities require only a building permit. • The development team should assess which local approvals will be required and consult with counsel. • Remember that aside from positive economic benefits, most positive benefits of wind farm development are “global,” while most negative impacts are local • Local support is crucial to wind farm development.

8. State Approvals • Required State approvals vary greatly • Numerous state regulatory programs are likely to be triggered by a proposed wind energy project. While such programs often mirror, implement (through delegated authority), or complement similar federal laws, the state version is typically more stringent than its federal counterpart.

9. State Approvals • Common State approvals: • “Little NEPA” • State Siting Statutes • Endangered Species Act • Wetland Permits • Stream Crossing Permits • State Owned Land • Historic Preservation • Stormwater • Agricultural Protection • DOT (Roadway) Permitting

10. State Approvals • Jurisdictions with “Little NEPA” include: • California • Connecticut • District of Columbia • Georgia • Guam • Hawaii • Indiana • Maryland • Massachusetts • Minnesota • Montana • Nevada/California - Tahoe • New Jersey • New York • North Carolina • Puerto Rico • South Dakota • Virginia • Washington • Wisconsin

11. State Approvals • State Energy Facility Siting Commissions/Public Utility Commissions • A single agency with primary jurisdiction over wind energy projects. • A dedicated agency oversees all issues relating to the siting of new energy facilities (other agencies participate as interested parties). • Review usually involves detailed adjudicatory hearings during which attorneys and expert witnesses provide information to a decision maker. May include environmental impact review, superseding any state “little-NEPA” program. • Some states authorize the state siting agency to override local decisions.

12. Federal Approvals • National Environmental Policy Act • NEPA requires federal agencies to publicly study the environmental impacts of their proposed actions, as well as alternative actions, prior to taking an action. • Gives the public the opportunity to weigh in before an action is taken • Doesn’t require the federal government to avoid all environmental impacts – just that it be open and honest about its impacts

13. Federal Approvals • Common actions that trigger NEPA on a wind project include: • Federal permit • Federal land use authorization • Interconnection to a federally managed transmission line • Federal funding

14. Federal Approvals • Federal Wetland and Waterbody Laws • Section 10 Construction Permit: Required for construction w/in navigable waters of the U.S. (transmission line crossings, bridges, temporary dams, etc.) • Section 404 Dredge Permit: Required for dredging or disposal of dredged or fill material in navigable waters. This permit is required for any construction within federal wetlands. • Individual or general permits issued on a state, regional or national basis • States issue Section 401 Certification • Requires Section 7 and Section 106 consultations

15. Federal Approvals • National Pollutant Discharge Elimination System (NPDES) permits for stormwater • Most states and some Indian tribes are authorized by the USEPA to implement the NPDES permitting program. • During pre-construction and construction, a NPDES Stormwater Permit for Construction Activities is required for any ground disturbance in excess of one acre. • Some states require a NPDES Stormwater Permit for the operating facility • Preparation of a Stormwater Pollution Prevention Plan is required (SWPPP)

16. Federal Approvals • Endangered Species Act and other Wildlife Protection Laws • ESA Section 9 prohibits unauthorized take of endangered wildlife. The ESA regulations extend this to threatened animals. • Section 11(b) makes it a crime to knowingly "take" an endangered species without a permit. • Section 7 prohibits federal agencies from approving projects that are “likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat.” • If a project requires a federal permit, Section 7 consultation will occur as part of federal permit review. • Many wind projects do not require any federal permits. In those situations, wind developers are advised to conduct a voluntary consultation with the USFWS under Section 10 to avoid penalties for unauthorized take, which range from civil fines, criminal penalties (including incarceration), and potentially, injunctions against operation of the wind project. • Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act also relevant

17. Federal Approvals • National Historic Preservation Act • Section 106 Consultation identifies possible conflicts between historic preservation objectives and a proposed federal activity • NHPA does not require that all cultural resources must be preserved. It requires the federal agency to consider the effects of proposed on cultural resources. • Typically requires consultation with the State Historic Preservation Office (SHPO) and any potentially affected Native American tribes

18. Federal Approvals • Federal Aviation Administration Clearances • Early study potential for conflicts with civilian and military airspace and military radar • The FAA requires a Notice of Proposed Construction (NPC) (Form 7460-1) for any structure greater than 200 feet above ground level • If there is a Determination of Hazard, you need an attorney

19. Federal Approvals • Federal Land Use Authorizations • Special rules apply to acquiring the right to build wind turbines on federally managed lands; Get consultant who has been through the process: • Bureau of Land Management • US Forest Service • Bureau of Reclamation • Department of Defense • Bureau of Indian Affairs • NEPA compliance is required • Federal Transmission Line Interconnections • NEPA compliance is required • Triggers Section 7 and Section 106 consultation

20. AWEA Siting Guide! • http://www.awea.org/sitinghandbook/ • Prepared by Tetra Tech and Nixon Peabody • Live, regularly updated links to hundreds of sources for environmental study and permitting

21. Tetra Tech • Tetra Tech, Inc provides environmental, engineering, and construction services to the three phases of a wind project: development, construction, and operation. • Publicly traded company (TTEK) • Chosen by Smart Money magazine as one of the “10 Stocks for the Next 10 Years” • Annual revenues in excess of $1.4 billion; financial strength to stand behind large wind energy projects, including EPC & BOP • Over 8,500 employees in 250 offices world-wide • Consistently ranked in Engineering News Record as one of the top ten

22. Tetra Tech • Acquisition of The Delaney Group – a well-respected leader in renewable energy construction • Experienced energy staff in all disciplines • More than 6 million hours without a lost work day over past two years • Injury rate is ¼ the national average • 70+ National Safety Council awards • Employee health and safety perception rating in top 2% nation-wide • ISO 14001 Certification for all services • First major full-service firm to earn certification with such broad coverage • ISO 9001 Certification for Wind Engineering • Documented quality procedures and systems to meet global standards and expectations

23. Tetra Tech’s Services for Wind

24. Anntonette Alberti, JD518-488-8588Anntonette.Alberti@tteci.com