Posted on July 29, 2020
By Melissa Foster, Tim Taylor, Cherise Gaffney and Chad Marriott, Stoel Rives LLP
like their terrestrial counterparts, wind turbines floating miles offshore trigger the need for various federal, state and local approvals. While most of the industry’s focus is on securing a Bureau of Ocean Energy Management (BOEM) lease, locating the turbines and subsea transmission cables, and addressing impacts to wildlife, offshore wind developers cannot lose sight of the importance of permitting a project’s onshore facilities in the coastal zone. This article focuses on the critical state and local approvals required for a wind project specifically off the California coast.
State and local development approvals in the coastal zone
Various federal, state and – depending on the project – local approvals are likely to be required for the onshore components of any offshore wind project in California. Onshore project components include the onshore export cable route and the burying of the cable beneath the beach and any nearby roads, parks along the route to the substation, as well as interconnection hardware (e.g., transformers, switchgear), housing and additional components.
BOEM has jurisdiction over offshore wind projects on the Outer Continental Shelf and must evaluate them through the lens of the National Environmental Policy Act (NEPA) prior to granting leases, easements and rights-of-way. Importantly, the scope of BOEM’s environmental review will almost certainly include onshore components that are also subject to the jurisdiction of the California Coastal Commission (or Coastal Commission-approved Local Coastal Programs) and the California State Lands Commission. Any actions by a California state or local agency will require environmental review under the California Environmental Quality Act (CEQA).[1] Thus, the onshore components of California offshore wind projects will need to comply with the requirements of both NEPA and CEQA, though if the involved state and federal agencies can agree, these processes can be coordinated and, to a certain degree, streamlined.
The Coastal Commission generally has jurisdiction over development within California’s coastal zone pursuant to the California Coastal Act.[2] The exception is San Francisco Bay, where development is regulated by the Bay Conservation and Development Commission. In California, the coastal zone varies in width from several hundred feet up to five miles inland and extends three miles offshore. The Coastal Commission also implements the federal Coastal Zone Management Act as it applies to federal activities, including development projects, permits and licenses.
Local governments can obtain permitting authority within the coastal zone if the Coastal Commission approves a Local Coastal Program (LCP). Under an approved LCP, the local government can make decisions regarding conservation and use of resources along that coastal segment. According to Coastal Commission data, as of 2016, approximately 73% of the 126 LCP segments have been certified by the Coastal Commission. Thus, as of 2016, local governments are issuing coastal development permits within approximately 87% of the geographic area of the coastal zone. But even in areas that have an approved LCP, for development proposed on or under tidelands, submerged lands or public trust lands, the California State Lands Commission has jurisdiction.
The State Lands Commission manages tide, submerged and coastal public trust lands in California. Typically, State Lands Commission jurisdiction extends to in-water projects, such as docks and marinas, but its approval is also required for cables that breach the shoreline to connect offshore wind turbines to onshore facilities. These facilities, in turn, need discretionary approvals from the local government (if it has an approved LCP) or the Coastal Commission, and those approvals will contain conditions to protect public coastal access and the environment.
In an effort to improve collaboration and increase coordination, the Coastal Commission and the State Lands Commission entered into a Memorandum of Understanding on September 19, 2019. Although not legally enforceable, the MOU provides a roadmap for coordinating lease and coastal development permit applications between the agencies and establishes a pecking order of sorts – i.e., the State Lands Commission must render a jurisdictional determination before the Coastal Commission can deem a permit application complete.
Additional state and local approvals for onshore activities
In addition to Coastal Commission (or LCP) and State Lands Commission approvals, various other state and local approvals will be required for the onshore components of offshore wind projects. For example, CEQA is a broad-reaching statute designed to inform agencies and the public about the potential environmental effects of proposed discretionary projects. CEQA requires the evaluation of a project’s physical impacts on the environment, project alternatives, and proposed mitigation or avoidance measures if potentially significant impacts are identified. With the exception of the Coastal Commission, which has been certified by the California Secretary for Resources as a Certified Regulatory Program under CEQA, each state and local agency evaluating the onshore components of an offshore wind project must comply with CEQA before taking action on such project,[3] though a single lead agency will be responsible for the preparation and approval of an environmental analysis upon which other CEQA agencies typically will rely.
Once onshore, the export cable will likely follow an underground route (whether measured in yards or miles) to the substation interconnection point. Ultimately, the route length may impact the number of jurisdictions traversed, as well as the amount of public opposition that may be encountered. Onshore development activity of any kind can draw opposition from nearby landowners concerned with construction traffic, safety, visual, economic or environmental impacts, just to name a few.
Onshore development will also require compliance with various water quality, species protection, air quality and other laws. While it is clear that burying export cables as they come onshore will require a Clean Water Act section 404 permit and a Section 401 Water Quality Certification, the project may also require a Rivers and Harbors Act permit. Among these, it is important to know that the Section 401 Water Quality Certification is a gating item in development – no license or permit may be issued by a federal agency until the relevant California Regional Water Quality Control Board has issued its 401 certification.
Next, depending on the scope of the proposed onshore activities, an incidental take permit from or agreement with the California Department of Fish and Wildlife may be required. Various stormwater approvals may also be necessary, depending on the size and scope of onshore activities, including coverage under California’s Construction General Stormwater NPDES Permit and compliance with local agency stormwater requirements.
Finally, rounding out the picture of state and local permits, we expect that offshore wind projects will require approvals from the local air district as well as other local ministerial approvals, such as building, grading, electrical, sewer, waste, and/or encroachment permits.
Other onshore considerations – port availability and access
Numerous offshore developers on the East Coast have begun investing in and working with port facilities to secure preferred locations for staging, installation, fabrication and operation and maintenance of offshore wind projects. Other ports have been identified as preferable locations for upgrades and makeovers to better facilitate uses by offshore wind developers in the future. In California, some initial port evaluations have occurred, including initial evaluations of the port’s role and necessary port characteristics. A port can be classified in one or more roles, including assembly, installation, fabrication and quick response. For example, a quick response port is used for crew transfer and pre-installation activities so it will not require the same amenities as a viable fabrication, construction or final assembly port. Depending on the need, valuable port characteristics may include proximity to rail, navigation channel width and depth, dry dock or shipyard facilities, crane capacity, skilled workforce, availability of long-term staging and laydown areas, and, perhaps most important, proximity to a project lease area. Until definitive offshore locations for projects are identified, determining preferential ports and port locations remains premature.
Completing the permitting puzzle
Early involvement with onshore approval agencies and stakeholders will be critical to ensuring that an offshore wind project will be successful. Until now, the focus in California has been on identifying the eligible offshore locations for turbine and cable placement, but developers also should give early consideration to the necessary onshore approvals and the many hurdles that typically arise. Be sure to carve out a significant amount of time in the development schedule for onshore permitting, as public scrutiny, agency review, and inevitable delay are all but guaranteed.
Melissa Foster
Melissa Foster is a partner in the Environment, Land Use and Natural Resources group and located in Stoel Rives’ Sacramento office. She has over 15 years of experience practicing environmental law and focuses her practice on facility siting, environmental compliance, and enforcement defense.
Tim Taylor
Tim Taylor is one of Sacramento’s best-known environmental and land use lawyers. He helps residential, commercial and industrial developers achieve compliance with California’s numerous land use and environmental laws, with a particular focus on the California Environmental Quality Act and related litigation. During his more than 25-year career, Tim has also dealt extensively with a wide range of federal environmental laws, including the National Environmental Policy Act (NEPA), the Clean Water Act (CWA) and the Endangered Species Act (ESA).
Cherise Gaffney
Cherise Gaffney is a partner in the Environment, Land Use and Natural Resources practice group. She advises clients on federal natural resources law in complex permitting and compliance matters and has extensive experience on issues arising under the ESA, NEPA, CWA, Marine Mammal Protection Act, Federal Power Act, Coastal Zone Management Act, and Administrative Procedure Act.
Chad Marriott
Chad Marriott leads the firm’s wind energy subgroup and serves as counsel to sponsors, owners, and investors in the development, sale, acquisition, and financing of renewable and thermal generation projects throughout the United States. In the past few years, Chad has worked heavily in the wind, solar, and battery energy storage spaces, serving as sponsor’s counsel in the negotiation of approximately $3 billion in tax equity and separate cash equity investments in 900 MW of renewable energy projects.
[1] In California, no one entity has jurisdiction over onshore approvals for an offshore wind project. Although the California Energy Commission (CEC) is part of the Bureau of Ocean Energy Management – California Intergovernmental Renewable Energy Task Force, CEC jurisdiction is limited to thermal powerplant projects in California with a generating capacity of 50 MW or more. The CEC does not have siting jurisdiction over any onshore permitting approvals related to offshore wind projects.
[2] Cal. Pub. Resources Code §§ 30000 et seq.
[3] 14 Cal. Code Regs. section 15251(c); see also Cal. Pub. Resources Code section 21080.5.
Source: windpowerengineering
