Permitting & Policies of Wind on the Water – Great Lakes –

1. Permitting & Policies of Wind on the Water – Great Lakes – Presented ByKatherine A. Roek STOEL RIVES LLP June 16, 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 • Lessons from East Coast • State of offshore wind development in the Great Lakes • What are other states doing? • What does the future hold? 4

5. Permitting Issues ONSHORE OFFSHORE • Marine mammals • Fish • Navigation • Existing uses (commercial fisheries, crabbing) • Electromagnetic field • Creation of new environments / adaptive management • Water quality • Ease of removal • Military radar • Jones Act • Land interest acquisition • Local zoning • Avian impacts • Other wildlife/endangered species • Wetlands • Aviation • Visual impacts • Noise/human health consequences 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 – Great Lakes Each state – out to center of Lake 7

8. Siting Authority – State Waters • Great Lakes • each state out to center of lake • Atlantic/Pacific coasts • up to 3 nautical miles offshore • Gulf of Mexico (Texas, Florida) • 9 nautical miles offshore • Texas: General Land Office 8

9. Offshore Wind Development –Federal Laws • National Environmental Policy Act • Submerged Lands Act of 1953 • Coastal Zone Management Act • Endangered Species Act • Clean Water Act • Others: • Fish & Wildlife Coordination Act • Rivers & Harbors Act • Migratory Bird Treaty Act • Marine Mammals Protection Act 9

10. Offshore Wind Development –State Laws • State environmental policy act (if applicable) • Great Lakes submerged lands • Water quality • Endangered species / wildlife protection • Commercial fishing / crabbing • Coastal zone management • Onshore issues (cables, waterfront development) • Marine safety • Water rights (?) 10

11. 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 11

12. Federal – MMS Leasing Regulations • Types of leases: • Commercial • Energy development • ~30 years • Competitively bid • Limited • Data gathering • ~5 years • BUT: limited power sale permitted 12

13. 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 13

14. 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 14

15. Great Lakes Permitting / Siting of Offshore Wind • U.S. Army Corps of Engineers will be lead federal permitting agency • NEPA review will be triggered through permit • Section 10 of Rivers & Harbors Act • Section 404 of Clean Water Act • EIS vs. EA? Depends on size, location… • Programmatic assessments? 15

16. Great Lakes Permitting / Siting of Offshore Wind, con’t • Other agencies: • State environmental regulatory agencies • e.g. Michigan Department of Environmental Quality for placement of structures in the Great Lakes – joint application process already in place • U.S. Coast Guard • Guidance on Offshore Renewable Energy Installations (OCS) – will adapt to Great Lakes (Corps, not MMS) • State coastal management agency • Fish and wildlife (state and federal) 16

17. State Initiatives • New Jersey • Blue Ribbon Panel to Evaluate Offshore Wind • Ocean Environmental Assessment • $12M in grants • Selected Preferred Developer • Created Energy Master Plan: • 1,000 MW by 2012; 3,000 MW by 2020 • Offshore Wind Renewable Energy Certificates • All load-serving entities required to obtain ORECs from offshore wind, based on their percentage of retail sales in NJ • OREC price to be set by BPU; 20-year term 17

18. State Initiatives, con’t • Rhode Island • Ocean Zoning • Special Area Management Plan • Selected Preferred Developer • June 2009: Legislation proposed that would require state’s largest electricity supplier to purchase energy from offshore wind farm 18

19. State Initiatives, con’t • Michigan • May 2008: Offshore Wind Permitting Dry-Run • Wisconsin • January 2009: Public Service Commission –prepared Feasibility Report. Looked at: • Engineering and Economic Issues • Human Environment Issues • Legal Issues • Community Involvement Issues 19

20. Consortiums • Great Lakes Wind Collaborative • Multi-sector coalition of wind energy stakeholders working to facilitate the sustainable development of wind power in the binational Great Lakes region. • Great Lakes Wind Council • Advisory body within the Department of Energy, Labor, and Economic Growth to provide public forum to identify where, in the Great Lakes, wind energy systems may be prudently sited • Report due September 1, 2009 20

21. 21

22. 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. • Spring 2009: Received consistency determination, composite approval from state. 22 SOURCE: GreenPeace USA

23. 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. 23

24. 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). 24

25. 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. 25

26. 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. 26

27. 27

28. 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 28

29. Thank you! Katherine A. Roek (612) 373-8820 karoek@stoel.com www.stoel.com 29