Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 300
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Finally, the lessee must submit a Construction and Operations Plan (COP). The COP is
a document that "describes how the lessee
will construct and operate a commercial
wind project on a commercial lease." It
includes descriptions of construction activities and decommissioning plans. At that
point, BOEM conducts a final environmental
review and approves the lessee to build
the facility, potentially subject to specific
conditions designed to mitigate environmental impacts. Because this final phase
usually involves the most significant environmental impacts, BOEM typically issues a
comprehensive evaluation of environmental
impacts in an Environmental Impact Statement (EIS) under NEPA. This is a multi-year
process.
3.3 Rights of coastal states
The permitting requirements for offshore
wind developments depend on whether
the facility will be located in state or federal
waters.14 State waters extend three nautical
miles (nm)15 off the coast. Waters beyond
that point, up to 200 nm seaward, are under
federal jurisdiction.16
14 Wind Energy: Offshore Permitting (everycrsreport.com).
15 State waters for Texas and the Gulf coast of Florida extend 9 nm.
16 https://www.boem.gov/oil-gas-energy/leasing/outer-continental-shelf.
17 16 U.S.C. 1451 et seq.
18 16 U.S.C. § 1456.
19 16 U.S.C. § 1455(d).
20 https://coast.noaa.gov/czm/consistency/.
United States
The Coastal Zone Management Act of 1972
was enacted to "preserve, protect, develop
and, where possible, to restore or enhance
the resources of the nation’s coastal zone."17
Federal permitting with reasonably foreseeable coastal effects must be consistent
with state management plans.18 States can
choose between three acceptable options
for land and water use control: (i) a state may
establish "criteria and standards for local
implementation," (ii) it may "direct state land
and water use planning and regulation," or
(iii) it may facilitate an "administrative review
of all development plans, projects or land
and water use regulations proposed by any
state, local or private developer."19 A state
can either implement one or a combination
of these options. States often delegate this
responsibility to a local environmental protection agency, which then must facilitate
the state’s permitting process in accordance
with the coastal zone management plan.
When a wind project lessee develops plans
for a project, it must prepare a "consistency
certification" that demonstrates federal
consistency with state coastal zone management plans. 20 BOEM then submits this
certification to the state’s coastal agency for
review. BOEM will not issue a permit if the
plans do not receive state approval. If a plan
is denied, the lessee can appeal or amend
