Offshore Wind Worldwide Regulatory Framework in Selected Countries 5th Edition 2024 - Flipbook - Page 355
Offshore Wind Worldwide 2024
II. The Regulatory Framework of
the Offshore Wind System
The Energy Policy Act of 2005 (EPAct)
authorizes BOEM to issue leases for renewable energy developments on the OCS.4 In
issuing leases, BOEM oversees a competitive
or non-competitive process that includes
a variety of environmental and technical
assessments. To engage states and obtain
public input on projects, BOEM has established Intergovernmental Renewable Energy
Task Forces in several states.5
At the heart of the regulatory framework
is the Outer Continental Land Shelf Act
(OCSLA), which sets forth a number of
factors that BOEM considers in authorizing
offshore wind projects.6 BOEM must also
ensure that projects comply with a variety
of environmental and natural resources
laws, including the National Environmental
Policy Act (NEPA), the Endangered Species
Act (ESA), the National Historic Preservation
Act (NHPA), the Migratory Bird Treaty Act
(MBTA), and the Coastal Zone Management Act (CZMA).7 BOEM must also work
in concert with the National Oceanic and
Atmospheric Association (NOAA) to ensure
compliance with the Marine Mammal Protection Act (MMPA) and coordinate with the
National Marine Fisheries Service (NMFS)
on incidental take authorizations for marine
mammals. 8
355
The U.S. Army Corps of Engineers and the
Environmental Protection Agency also must
permit aspects of the project with regard to
impacts to navigable waters, civil works, and
air emissions. There also are species consultations overseen by wildlife agencies such as
the Fish & Wildlife Service.
Another regulation that affects offshore
wind projects is the Jones Act, which is
designed to protect the U.S. shipbuilding industry. It is a more than 100-year-old statute
that requires the use of United States-flagged vessels for transportation of merchandise between “coastwise points” in the
United States. Importantly for the offshore
wind industry, an offshore wind platform
located in state or federal waters of the
United States is deemed a coastwise point
in the United States. Thus, vessels servicing
offshore wind construction and platforms
from points in the United States must be
Jones Act compliant. This means they must
be built in the U.S., documented under U.S.
laws, crewed by U.S. citizens or permanent
residents, and owned by a U.S. entity that is
under U.S. control.9 Exceptions are narrow,
and compliant vessels are scarce. Likewise,
waivers of the Jones Act requirements are
rare. They are available only upon a showing
that the waiver is necessary “in the interest
of national defense;” and a single waiver cannot exceed 10 days; and a cumulative waiver
period cannot exceed 45 days.
4 Energy Policy Act of 2005, 42 USCS § 15801 (2005).
5 Regulatory Framework and Guidelines | Bureau of Ocean Energy Management (boem.gov).
6 43 U.S.C. 1331.
7 Environmental Assessment | Bureau of Ocean Energy Management (boem.gov).
8 NOAA Role | Bureau of Ocean Energy Management (boem.gov).
9 46 U.S.C. § 12103; Domestic Shipping | MARAD (dot.gov).
