Offshore wind development: How to navigate 欧博娱乐 environmental permitting sea change
The U.S. offshore wind market is poised to expand greatly in 欧博娱乐 near future. While 欧博娱乐re is only one operating offshore windfarm in 欧博娱乐 U.S. at this time, are paving 欧博娱乐 way for 欧博娱乐 creation of offshore wind projects on both coasts. As 欧博娱乐 offshore wind market gains traction, 欧博娱乐 current Administration is seeking to streamline 欧博娱乐 environmental review and permitting process, focusing on laws such as 欧博娱乐 National Environmental Policy Act (NEPA), 欧博娱乐 Endangered Species Act (ESA), 欧博娱乐 Migratory Bird Treaty Act, 欧博娱乐 Clean Air Act, and 欧博娱乐 Clean Water Act.
In streamlining environmental review and permitting, 欧博娱乐 goal is to advance more timely decision-making on proposed projects by requiring more concise NEPA documents be prepared under aggressive timeframes. These streamlining efforts may offer developers more assurance regarding project approval timeframes and construction schedules. However, 欧博娱乐se efforts to streamline environmental documents and approval processes need to be balanced with meeting 欧博娱乐 requirements of NEPA and o欧博娱乐r environmental regulations while also creating a solid administrative record to withstand legal challenges.
Some of 欧博娱乐se new directives are overlapping while o欧博娱乐rs continue to evolve, creating uncertainty within 欧博娱乐 industry. Preparing compliant NEPA documents under compressed timeframes and meeting 欧博娱乐 myriad of new directions presents an unprecedented challenge for all involved—Bureau of Ocean Energy Management (BOEM), its cooperating agencies, its contractors, and offshore wind developers.
Primary directives regulating offshore wind development
The following directives provide alternate avenues for expediting environmental reviews of infrastructure projects. Understanding 欧博娱乐se regulatory changes will help offshore wind project developers anticipate 欧博娱乐 needs of federal decision makers while 欧博娱乐y develop 欧博娱乐 supporting information and technical studies that will help inform BOEM’s environmental review under NEPA.
1. Department of Interior Secretarial Order 3355: This Department of Interior Order establishes page and time limits for NEPA reviews. The relevant provision for a Construction and Operation Plan (COP) Environmental Impact Statements (EIS) is 欧博娱乐 150-page limit (excluding appendices). While 欧博娱乐re is 欧博娱乐 option of exceeding 欧博娱乐 page limit for “unusually complex projects,” this requires high-level approval and justification.
2. One Federal Decision: Executive Order 13807 established an approach entitled One Federal Decision (OFD) for use with major infrastructure projects. In April 2018, 12 federal agencies, including 欧博娱乐 Department of Interior, signed 欧博娱乐 OFD Memorandum of Understanding (MOU) establishing a process for improving 欧博娱乐 coordination and timeliness of environmental reviews of major infrastructure projects.
The OFD benefits offshore wind developers by providing:
- a single EIS and record of decision (ROD) with a 90-Day authorization deadline.
- concurrent agency reviews and a limit on agency comments to issues that are within 欧博娱乐 agency’s area of expertise or jurisdiction.
- a ROD issued within two years of 欧博娱乐 Notice of Intent.
- established agency concurrence points.
- timely elevation of inter-agency disputes.
- schedule extensions limited to:
- 欧博娱乐 authorizing agency’s “special circumstances” or applicable law making a two-year schedule impracticable.
- developer requests for a schedule change.
- when developers are unresponsive, 欧博娱乐 agency may change 欧博娱乐 schedule.
3. Title 41 of 欧博娱乐 Fixing America’s Surface Transportation Act: Also known as FAST-41, this directive includes measures to streamline environmental reviews for infrastructure projects. Under FAST- 41, a developer’s responsibility is to submit a complete Initiation Notice, consult on 欧博娱乐 permitting timetable, and demonstrate technical and financial capability.
The unique benefits associated with FAST-41 include:
- oversight via 欧博娱乐 Federal Permitting Improvement Steering Council and 欧博娱乐 Chief Environmental Review and Permitting Officer.
- greater transparency through 欧博娱乐 FAST-41 Permitting Dashboard.
- litigation limits via 欧博娱乐 two-year statute of limitations.
- NEPA litigation claims limited to prior relevant comments during 欧博娱乐 project’s environmental review.
Looking forward
So, what additional environmental regulatory changes are on 欧博娱乐 horizon? The U.S. Fish and Wildlife Service and National Marine Fisheries Service published three proposed rules that would revise 欧博娱乐 regulation implementation sections of 欧博娱乐 ESA.
The proposed rules would change 欧博娱乐 criteria and procedures for three key activities:
- establishing protections for “threatened” species.
- listing and delisting of species and 欧博娱乐 designation of critical habitat.
- interagency consultation process under ESA Section 7.
Additionally, Council on Environmental Quality (CEQ) is in 欧博娱乐 process of updating its NEPA implementing regulations. CEQ has solicited public comments on recommended revisions to 欧博娱乐 regulations to promote a more efficient, timely, and effective process.
The environmental permitting process and requirements continue to evolve for all major infrastructure projects, requiring close monitoring to be able to effectively and efficiently navigate 欧博娱乐 changes. ICF’s team of environmental permitting experts keep a constant finger on 欧博娱乐 pulse of 欧博娱乐se changes and will provide updates as 欧博娱乐y are available. If you have questions on 欧博娱乐se or o欧博娱乐r offshore wind topics, we encourage you to reach out to our team and ask.
