Major Federal & State Approvals Environmental Business Council of New England Land-Based Wind Energy May 29, 2008 Ruth H. Silman, Esq.

Major Federal & State Approvals - Overview Federal Regulatory Framework Typical Federal Permitting Requirements Federally Managed Lands State Regulatory Framework

Federal Regulatory Framework Executive Order – May 18, 2001 The Energy Policy Act of 2005 National Energy Policy of 2001 Report Federal Interagency Wind Siting Collaboration

Typical Federal Permitting Requirements National Environmental Policy Act (42 USC 4321) – Federal agencies must assess the environmental effects of their proposed actions prior to making decisions. Federal lands (BLM Programmatic EIS) Federal permits – Categories for review Categorical Exclusion Environmental Assessment Environmental Impact Statement

Typical Federal Permitting Requirements Endangered Species Act (16 USC 1531) – Prevent extinction of fish, wildlife and plant species – Implemented and enforced by US Fish and Wildlife Service – Fundamental terms: Endangered Species Threatened Species Critical Habitat – Consultation, Incidental Take, Permits, Exceptions

Typical Federal Permitting Requirements Migratory Bird Treaty Act (16 USC 703) – Protects over 800 species of migratory birds (not necessarily threatened or endangered) – Implemented and enforced by US Fish and Wildlife Service – Review may be concurrent with Endangered Species Act – Consultation required – No permit for accidental impacts – strict liability, even construed as criminal

Typical Federal Permitting Requirements Bald and Golden Eagle Protection Act (16 USC 668) – Unlawful to “take, possess, sell, purchase, barter … transport, export or import” bald eagle or golden eagle, their parts, nests or eggs. – Implemented and enforced by US Fish and Wildlife Service – Review may be concurrent with ESA and MBTA – No permit for accidental impacts – strict liability – Golden Eagle Nest Take Permit is available

Typical Federal Permitting Requirements Department of Interior – Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines (May 13, 2003) March 13, 2007 – DOI announced formation of Wind Turbine Guidelines Federal Advisory Committee (FACA) – Recommendations and advice to DOI and FWS on developing effective measures to protect wildlife resources and enhance potential benefits to wildlife that may be identified

Typical Federal Permitting Requirements Cultural and Paleontological Resources – National Historic Preservation Act (16 USC 470) – Section 106 consultation – Archaeological Resources Protection Act (16 USC 470aa) – Native American Graves Protection and Repatriation Act (25 USC 3001) – Federal Land Policy Management Act (43 USC 1701)

Typical Federal Permitting Requirements Water Resources – Clean Water Act – Section 404 (33 USC 1344) Regulates discharge of dredged or fill materials into waters of the United States – Rivers and Harbors Act – Section 10 (33 USC 403) Regulates obstructions to navigable waters of the United States

Typical Federal Permitting Requirements Water Resources (continued) – Clean Water Act – NPDES – Section 402 (33 USC 1342) Regulates stormwater discharges into waters of the United States – Clean Water Act – Water Quality Certification – Section 401 (33 USC 1431)

Typical Federal Permitting Requirements Federal Aviation Administration (49 USC 44718) – Jurisdiction over any object that may impact or interfere with the navigable airspace or communications technology used in aviation operations. – Notice of Proposed Construction (Form ) Structure greater than 200’ AGL OR if close to runway Determination of No Hazard OR Notice of Presumed Hazard

Typical Federal Permitting Requirements Electromagnetic Interference – Turbines may interfere with radar systems – Department of Defense issued a report – The Effect of Windmill Farms on Military Readiness – Sept. 27, 2006 Wind farms located within radar line-of-sight of an air defense radar facility may degrade the ability of the radar to perform its intended function Shadowing and increased “clutter”

Federally Managed Lands Bureau of Land Management Bureau of Reclamation Bureau of Indian Affairs Forest Service Natural Resource Conservation Service Department of Defense Fish and Wildlife Service

State Regulatory Framework Process varies widely from state to state State Energy Facility Siting Commissions/Public Utility Commissions – CT Department of Public Utility Control; CT Siting Council – ME Public Utilities Commission – MA Public Utilities Commission; MA EFSB – NH PUC; NH OEP; NH Energy Facility SEC – RI PUC; RI DPUC; RI EFSB – VT Department of Public Service; VT Public Service Board

State Regulatory Framework State Environmental Impact Review (“Little-NEPAs”) – Assess environmental consequences of project – CT – CEPA – – MA - MEPA – Greenhouse Gas Emissions Policy & Protocol

State Regulatory Framework Hull Wind EEA # Secretary’s Certificate on ENF – Up to 4 off-shore wind turbines – Maximum of 15 MW – Project will displace approx. 26,050 metric tons/year of CO 2 – Certificate requires EIR to indicate How GHG emissions displacement was calculated and to do so in short tons/year Provide information on data sources and/or models

State Regulatory Framework Endangered Species Wetlands and Waterways Historic Preservation and Cultural Resources Stormwater Agricultural Production State-Owned Lands

Questions? Ruth H. Silman, Esq