Summer 2012 Update: Projects and Agency Developments

Although it's been pretty quiet in the U.S. offshore wind world this summer, there have been a few significant events both on the projects side and with respect to regulatory and agency developments.  Cape Wind and Fishermen's Energy have reported important development and/or permitting milestones this summer.  In addition, BOEM has published its Environmental Assessment for the Wind Energy Area (WEA) located off the coasts of Massachusetts and Rhode Island, as well as (in collaboration with FERC) updates to the guidelines governing new wave and tidal technologies.

 

Project Updates

 

Cape Wind: Litigation Dropped, Construction Surveys Begin

 

On June 26, 2012, Cape Wind announced that a stipulation had been filed to resolve some of the claims in a pending litigation over fishing rights in Nantucket Sound.   The stipulation was filed by the Martha's Vineyard/Dukes County Fishermen's Association, who alleged that “[d]evelopment of the Cape Wind Energy Project will cause an effective closure of prime, historic fishing grounds on Horseshoe Shoal...”   Several other plaintiffs listed in the lawsuit are still involved, including the Alliance to Protect Nantucket Sound, the town of Barnstable, and the Wampanoag Tribe of Gay Head (Aquinnah).  The case is captioned as Public Employees for Environmental Responsibility v. Bromwich, 10-01067, and was filed in 2010 in the U.S. District Court, District of Columbia.
 
Although the settlement agreement with the Fishermen's Association was not officially disclosed, the Fishermen's Association now expresses unilateral support for the 120-turbine 468-megawatt wind farm:

“Instead of being on different ends of the fence, we’re going to work together to determine which areas are open to fishing, what areas will be successful for different kinds of fishing and how to make that fishing safe and available to all fishermen,” said Warren Doty, president of the Fishermen's Association.

Mr. Doty further noted that in exchange for the Association's support, Cape Wind has agreed to support access and a new permit program for fishermen who make a living in the waters around Horseshoe Shoal: the newly-formed Martha’s Vineyard Fishermen’s Preservation Trust.  The Trust will buy fishing permits and lease them at affordable rates to Island fishermen and will be operated through the Permanent Endowment for Martha’s Vineyard. The amount of any monetary contributions from Cape Wind toward the permit bank was not disclosed pursuant to a confidentiality agreement.

 

In addition, Mr. Doty said that the Association's initial concerns that an exclusionary zone would be created around the turbines have been addressed, with Cape Wind agreeing not to limit fishing access for the fishermen who harvest conch, scup and sea bass in the area.

In early July, Cape Wind announced that it has initiated the next stages of geophysical and construction surveys that must be performed in advance of construction.  Cape Wind spokesman Mark Rogers reported that the survey would be a four-stage process building on work performed in previous years. 

 

While earlier surveys related to Cape Wind's permitting efforts, the newest round of geotechnical survey work pertains to Cape Wind's final project design plans.  Survey work will include investigations into sediment characteristics at the various depths at which Cape Wind expects to drive the wind-turbine foundation piles.  Under the current plans, Cape Wind anticipates pile diameters of approximately 15-feet and expects to drive the foundations to a depth of about 80-feet below the sea bed.

The geotechnical survey work is being performed by the Dutch marine surveying company, Fugro.  Fugro has conducted numerous marine based geotechnical surveys for oil and gas companies, mining operations, construction projects and many of the off-shore wind projects recently built in Europe.  The company's U/S. headquarters is located in Norfolk, Virginia.

 

In addition to Fugro, Fathom Research of New Bedford, MA will assist in the sediment analysis.  Waltham, MA based ESS Group will monitor and advise with respect to any potential disturbances to marine mammals.

Fishermen's Energy:

 

On July 19, 2012, Fishermen's Energy announced that (Atlantic City, NJ July 19, 2012) Fishermen’s Energy announced that it has received approval from the US Army Corp of Engineers (“USACOE”) for its Individual Permit under the Clean Water Act, for the Fishermen’s Atlantic City Windfarm (“FACW”).  Although Fishermen's Energy is still waiting to see whether the New Jersey Bureau of Public Utilities accepts its application under New Jersey's Offshore Renewable Energy Credit ("OREC") program, the Army Corps permit is the final federal permit required for the construction of the proposed 5-turbine Atlantic City area offshore wind farm.

"This final permit from the US Army Corp of Engineers brings Fishermen’s Energy demonstration project off Atlantic City one step closer to fruition. This project is the catalyst needed to jumpstart the offshore wind industry in New Jersey and it sends the right signals to manufacturers that New Jersey is open for business," said Rhonda Jackson, Communications Director of Fishermen’s Energy.

"The Fishermen's Atlantic City Windfarm fully demonstrates how renewable energy projects can be developed in an environmentally responsible manner. Fishermen's Energy has worked diligently to ensure that all regulatory and environmental concerns raised by State and Federal agencies are completely addressed. This project will serve as an example of how offshore wind projects should be pursued" said Chuck Harman, Principal Ecologist and Project Manager for AMEC Earth & Environmental (“AMEC”).

Before Fishermen’s Energy can begin construction, the company must finalize its status under the New Jersey OREC program as well as select its construction contractors.  Fishermen's has indicated that it hopes to select New Jersey vendors whenever practical and plans to commence onshore port and facilities construction in Atlantic City in 2013 with offshore construction and commissioning in 2014.

 

BOEM and FERC Updates

 

MA/RI Environmental Assessment:

 

On July 2, 2012, Secretary of the Department of the Interior, Ken Salazar, announced the publication of an environmental assessment for commercial wind leases and site assessment activities on the Outer Continental Shelf off of Rhode Island and Massachusetts (the EA).  This EA pertains to an area also known as the "Area of Mutual Interest" or "AMI" pursuant to an agreement between Massachusetts and Rhode Island.  A copy of the Federal Register Notice of Availability is available here.  BOEM will accept public comments on the EA until August 2, 2012 and will consider any comments submitted before determining whether to issue a Finding of No Significant Impact (FONSI), require revisions to the EA, or determine that a more comprehensive Environmental Impact Statement is required. 

 

In sum, the EA considers six (6) alternative approaches to leasing submerged land in the AMI, including one "no action alternative."  The six alternatives are:

1. Lease issuances in all areas of the designated AMI Wind Energy Area (WEA)-- This is the proposed action and preferred alternative. 
2. Lease issuances in all areas of the designated AMI WEAs, with certain areas designated as important to North Atlantic Right Whales excluded.
3. Exclusion of all areas within the AMI WEA that are located within 15 nautical miles of inhabited Massachusetts coastal areas.
4. Exclusion of all areas within the AMI WEA that are located within 21 miles of inhabited Massachusetts coastal areas.
5. Exclusion of any areas within the AMI WEA that are host to submerged telecommunications cables.
6. No action alternative.

BOEM hosted information sessions in Rhode Island and Massachusetts to provide additional opportunities for public input on the Environmental Assessment and to explain the commercial leasing process on July 16 and on July 17. A copy of BOEM's presentation is available here.

 

BOEM and FERC Revise Guidelines for Wave and Tidal Projects:

 

On July 19, 2012, The Bureau of Ocean Energy Management (BOEM) and the Federal Energy Regulatory Commission (FERC) announced revised guidelines for potential marine hydrokinetic energy developers interested in pursuing technology testing and commercial development activities on the nation’s Outer Continental Shelf (OCS).   The revised guidelines replace 2009 guidelines issued by BOEM’s predecessor agency, the Minerals Management Service (MMS), and FERC and are available here. 

 

Wave and tidal generation projects located on the OCS are subject to approval and permitting requirements overseen by both BOEM and FERC.  This joint agency oversight was established pursuant to a Memorandum of Understanding between the Department of the Interior and FERC that was issued in April 2009.

Like the 2009 guidelines, the revised guidelines include an explanation regarding the respective responsibilities of each agency and instructions on how best to navigate the process of obtaining a marine hydrokinetic lease and license on the OCS.  Topics include, among others: provisions for obtaining leases and licenses, fee structures, and hybrid (e.g., wind and marine hydrokinetic) project considerations.  The revised guidelines were issued to "promote further clarity for the regulatory process and facilitate a more efficient process in authorizing marine hydrokinetic (e.g., energy developed from waves and ocean currents) research and testing activities."