New York Great Lakes Offshore Wind Development Regulatory and Permitting Issues

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1 New York Great Lakes Offshore Wind Development Regulatory and Permitting Issues Presented By Professor Robert S. Berger University at Buffalo Law School (Buffalo Conference) Dwight E. Kanyuck Knauf Shaw LLP and Future Energy Development, LLC (Rochester Conference)

2 Topics Opportunities and issues associated with GLOW Overarching legal framework Statutory jurisdiction Environmental review Why NYPA?

3 Why Offshore Wind in New York s Great Lakes? Excellent wind resource (50 75% more production per turbine) Proximity to loads Diminished land based location opportunities Economic development opportunity A long term source of stably priced, clean renewable energy

4 Issues Current cost Experience in fresh water, ice conditions Competition for economic development Lakebed alteration impact Avian, bat, fishery impacts Aesthetics Navigation/recreational boating Use of lakes as drinking water supply

5 Legal Framework Binational nature of New York s Great Lakes State ownership of lands underwater Public Trust Doctrine Federal and State statutory jurisdiction Environmental Review

6 Binational Considerations Canada has jurisdiction over 1/2 of Erie and Ontario International agreements Boundary Waters Treat of 1909 Great Lakes Water Quality Agreement Great Lakes Basin Compact Great Lakes Charter International organizations with advisory and coordinating roles International Joint Commission Great Lakes Fishery Commission Fishery management Great Lakes Commission Development, use, and conservation of water resources Lakewide Management Plan Management Committees

7 Ownership of Great Lakes Underwater Land New York owns underwater land to the international boundary in Lakes Erie and Ontario Allows state authorization of grants, leases, and easements Department of State has jurisdiction with DEC recommendations regarding environmental protection

8 Public Trust Doctrine Common law doctrine that encompasses the idea that certain resources, particularly navigable waterways, are forever held in trust by the state for the use and benefit of the public. Ensures that any contemplated use of the waters and submerged lands of navigable lakes comport with the best public use and not be injurious to the public. Places a judicial check on legislative actions to prevent shortsightedness or abuse to safeguard valuable common resources.

9 Federal Jurisdiction Army Corps of Engineers Permits in Federal Navigable Waters Section 10 of River and Harbors Act of 1899 for structures (33 U.S.C. 403) Clean Water Act 404 for dredge or fill materials U.S. Coast Guard authorization to determine whether an obstruction is a hazard to navigation FAA obstruction determinations and mitigation requirements for structures greater than 200 feet. Consultations U.S. Fish and Wildlife Service and National Marine Fishery Services Consultation required under Fish and Wildlife Coordination Act Migratory Bird Treaty Endangered Species Act

10 New York State Jurisdiction New York Coastal Zone Management Plan Consistency (Department of State with other state agencies) Requires adherence to 44 state coastal policies Facilitates siting of water dependent uses defined as an activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water. Gives priority to water dependent recreational uses Office of Parks, Recreation, and Historical Preservation Review Department of Environmental Conservation Navigation Law Fill, excavation, and structure permits Clean Water Act 401 water quality certification Coastal Zone Management Plan Consistency Certificate of Public Convenience and Necessity from Public Service Commission

11 Environmental Review NEPA (federal) and SEQRA (N.Y.) environmental review processes triggered because of federal and state permitting. Likely U.S. Army Corps as lead agency Programmatic/Generic EIS available to avoid repetitive analysis for common issues E.g. provide guidance for site specific analysis of avian and visual impacts, water based recreational uses Useful for assessment of cumulative impacts

12 Why NYPA? Energy and economic development mission Integration opportunity with hydro facilities Ability to acquire property rights But still requires federal and state agency approvals