On May 19, 2021, the US Environmental Protection Agency (EPA) announced1 that it had issued the final Clean Air Act Outer Continental Shelf air quality permit to Vineyard Wind 1, LLC. As described in the announcement:
[t]he permit includes air pollution control requirements for the construction and operation of the 800-MW windfarm. By issuing this permit, construction can now begin on the nation's first major offshore wind project, which will be in federal waters off the coast of Massachusetts. The permit regulates pollutants from "Outer Continental Shelf (OCS) sources," such as jack-up barges that will construct each wind turbine and the electrical service platforms. Additionally, emissions associated with air-emitting devices used during the operation of the windfarm . . . are also regulated.
Although the EPA’s issuance of the permit further evinces the Biden administration’s commitment to facilitating the deployment of offshore wind (OSW) projects, it is also a reminder to the developers, investors, sponsors and financing parties waiting in the wings of the multi-layered approval process that lies ahead for similar OSW projects.2
The focus of the permitting discussion for OSW has rightly been on the US Department of the Interior (DOI) and, specifically, the Bureau of Ocean Energy Management (BOEM) within DOI. BOEM has by statute—specifically the Outer Continental Shelf Lands Act of 1953 as modified by the Energy Policy Act of 2005 to include OSW—been given the authority to regulate the development of OSW in federal waters. Most notably, BOEM controls the federal leasing process for offshore wind.3 In its lead-agency role, it was BOEM who issued the record of decision and approval for the Vineyard Wind Project to move forward, earlier in May of this year.4
Notwithstanding the primary role of BOEM in the overall OSW permitting and approval process, even within DOI there are additional regulatory bodies with jurisdiction over the development and operation of commercial OSW projects. The Bureau of Safety and Environmental Enforcement (BSEE) is a sister agency of BOEM within DOI that is also tasked with regulating offshore wind. As set forth in a memorandum of understanding between the sub-agencies and, more recently, a memorandum of agreement, while BOEM has more general jurisdiction over offshore development and leasing, BSEE is responsible for and shall provide support and coordination to BOEM regarding safety and technical matters such as “engineering standards and regulations . . . inspections, enforcement, and investigations related to OCS mineral resource development activities.”5 Of note, the Biden administration’s recent budget proposal includes significant (>$250MM) funding for BSEE—inclusive of ~$9MM earmarked for increased activities related to the regulation in the offshore wind space.6
Another agency within DOI with jurisdiction over certain aspects of OSW development and operation is the US Fish and Wildlife Service (USFWS). Similar to onshore wind development, stakeholders in offshore wind projects will need to be mindful of, among other things, species matters under the purview of the USFWS.
Moving beyond DOI, within the Department of Transportation, the Federal Aviation Administration has jurisdiction over commercial OSW—similar to onshore wind projects—with respect to evaluating potential hazards to air navigation. Within the Department of Commerce, the National Oceanic Atmospheric Administration (NOAA) has jurisdiction over certain matters related to offshore wind development and operation pursuant to the Coastal Zone Management Act of 1972 and the Endangered Species Act of 1973. Under the latter’s statutory authority, the National Marine Fisheries Service (an agency within NOAA) is charged with preparing a biological opinion with respect to a biological evaluation that must be prepared by BOEM for any offshore wind project that may affect listed species or their critical habitat. Within the Department of Defense, the US Army Corp of Engineers (USACE) and US Coast Guard (USCG) similarly have several touchpoints for OSW projects. These include regulatory authority conveyed to USACE and USCG pursuant to the Rivers and Harbor Act of 1899 and the Ports and Waterways Safety Act of 1972, respectively.
The foregoing is just an overview of part of the federal regulatory landscape for OSW projects—of course, regional, state and local permitting and approvals will also come into play, for example, related to onshore transmission interconnection and other facilities and any public utility commission matters.7
2 We note that this summary of permitting considerations is with respect to OCS projects (i.e., projects in the Atlantic Ocean, Pacific Ocean and Gulf of Mexico) and BOEM jurisdiction would not apply, for example, to projects in the Great Lakes. For more information on Great Lakes wind development, see our May 29, 2019, Perspective “In Another Milestone, Icebreaker Wind Receives Key Construction Permit.”
3 For a good overview of the process by which BOEM conducts auctions for OSW land rights, see
Virginia-Final-Sale-Notice_signed.pdf (boem.gov). Also, note that there are publicly available BOEM leases (Lease-OCS-A-0503.pdf (boem.gov) for reference.
4 As described in more detail in our May 11, 2021, Perspective “Biden Administration Approves Vineyard Wind Offshore Wind Project.”
5 See BOEM-BSEE Memorandum of Understanding (dated Dec. 20, 2020) at BOEM BSEE Renewable Energy MOA.
6 See BSEE Press Release, President Biden’s Fiscal Year 2022 Budget Makes Significant Investments in Bureau of Safety and Environmental Enforcement (dated May 28, 2021) at Bureau of Safety and Environmental Enforcement | Promoting Safety, Protecting the Environment and Conserving Offshore Resources (bsee.gov)
7 See, e.g., our June 8 2021, Perspective: “Governors of Nine East Coast States Send Offshore Wind Letter to Biden Administration” (discussing the states’ focus and, among other things, the need for collaboration on permitting challenges).