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Wind Energy: Offshore Permitting

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Publication Date: January 2009

Publisher(s): Library of Congress. Congressional Research Service

Series: RL32658

Topic: Energy (Renewable energy sources)

Abstract:

Technological advancements and tax incentives have driven a global expansion in the development of renewable energy resources. Wind energy, in particular, is now often cited as the fastest growing commercial energy source in the world. Currently, all U.S. wind energy facilities are based on land; however, multiple offshore projects have been proposed and are moving through the permitting process.

It is relatively clear that the United States has the authority to permit and regulate offshore wind energy development within the zones of the ocean under its jurisdiction. The federal government and coastal states each have roles in the permitting process, the extent of which depends on whether the project is located in state or federal waters. Currently, no single federal agency has exclusive responsibility for permitting activities on submerged lands in federal waters; authority is instead allocated among various agencies based on the nature of the resource to be exploited. In addition to basic jurisdictional questions, it is not necessarily clear that current federal law should be interpreted to apply to offshore wind energy facilities or whether new laws will be needed.

The Army Corps of Engineers (Corps) has been exercising jurisdiction over proposed offshore wind energy facilities under the Rivers and Harbors Act and the Outer Continental Shelf Lands Act. Recently, in Alliance to Protect Nantucket Sound v. United States Department of the Army, the U.S. Court of Appeals for the First Circuit upheld a federal district court decision that the Corps' jurisdiction under these laws was legally sound, and the Corps' decision to permit a preliminary data collection tower in federal waters was sustained. The reasoning of these courts may be applied to the permitting of larger-scale wind energy projects, although certain issues remain unresolved. It may remain arguable whether the Army Corps' jurisdiction extends to renewable energy projects in federal waters, and it is unclear whether Corps permits would provide an applicant with the necessary property rights to begin construction of an offshore wind energy facility.

Several bills were introduced in the 108th Congress to address this issue, including several versions of versions of the Energy Policy Act of 2003: H.R. 6 and S. 2095. The energy bill would have placed authority for granting easements and rights-of-way on submerged federal lands in the hands of the Secretary of the Department of the Interior. Additional 108th Congress legislation, H.R. 1183, would have placed regulatory authority in the Secretary of the Department of Commerce by amending the Coastal Zone Management Act to allow specifically for renewable energy projects and the designation of ocean areas that would make suitable candidates for development. In the 109th Congress, H.R. 907 substantially incorporates the substance of the provisions found in the energy bill from the 108th Congress.

This report will discuss the current law applicable to siting offshore wind facilities, the recent court challenges to the federal offshore permitting process, and the above-mentioned legislation that addresses offshore wind energy regulation. This report will be updated as events warrant.

This report, which supersedes CRS Report RL32658, will discuss the disputes over Corps jurisdiction prior to enactment of the Energy Policy Act of 2005 as well as the current law applicable to siting offshore wind facilities.