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Major 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 - PowerPoint PPT Presentation
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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