Great Lakes, great potential: examining the regulatory framework for wind farms in the Great Lakes.

• Author: Saks, Katherine
• Position: North American Dispute Settlement

INTRODUCTION

The United States currently faces an economic crisis that demands new solutions to a nationwide problem. Our nation's leadership has turned to sustainable energy as a potential solution to the twin dilemmas of rising unemployment and United States dependency on foreign energy importation. President Barack Obama recently emphasized the need for clean, inexpensive energy during a speech at the United Nations, stating that "[w]e are making our government's largest ever investment in renewable energy--an investment aimed at doubling the generating capacity from wind and other renewable resources in three years." (1)

Wind energy generally has greater benefits over traditional methods of energy generation, including the following: avoiding air pollution, reducing water usage, maintaining stable pricing that is "not subject to fuel volatility," stimulating local economies, creating jobs supporting wind development, and potentially reducing fuel prices and stabilizing electricity rates. (2) While only land-based wind farms currently exist in the United States, (3) offshore wind farms present the opportunity to harness clean energy with the "economic potential for cost competitiveness that would allow them to make a large impact in meeting the future energy needs of the United States." (4) In addition, factors such as higher offshore wind speeds, steadier wind, and the ability to construct larger turbines give the offshore wind industry the potential to produce more energy than onshore turbines. (5)

The offshore wind project furthest into its development, the Cape Wind Energy Project (hereinafter Cape Wind), has faced strong public opposition, including concerns over obstruction of scenic beach views. (6) Notwithstanding delays, Cape Wind is progressing towards construction, recently receiving approval from the U.S. Interior Secretary. (7) Cape Wind's permitting approval may encourage wind development across the nation, including proposed wind farms in the Great Lakes. (8)

Constructing wind turbines in the Great Lakes raises many issues, including environmental concerns, (9) such as impacts on local wildlife, (10) as well as construction (11) and safety (12) issues. While much of the attention surrounding the construction of offshore wind farms targets environmental and aesthetic concerns, a neglected area is the statutory and regulatory regimes governing the permitting and approval of the initial construction.

This note explores the possibility of constructing wind turbines in the Great Lakes, through the lens of Ohio law, and proposes a regulatory solution for constructing the turbines in Lake Erie. Part I examines the challenges confronting Cape Wind. Part II identifies the federal agencies that have potential jurisdiction over offshore permitting in the Great Lakes. Part III addresses the role of Great Lakes states in permitting wind turbines. Part IV examines the Great Lakes governance structure and the stakeholders that have interests in the area. Part V discusses Ohio's current statutory efforts regarding potential wind turbines in Lake Erie. Part VI analyzes possible solutions to this regulatory quandary and proposes a harmonized approach to regulation that combines regulation at both the state and federal levels.

1. BACKGROUND

   Cape Wind revealed that Congress had not granted any specific federal agency regulatory authority over permitting offshore wind turbines on the Outer Continental Shelf (OCS). (13) The United States Army Corps of Engineers (USACE) generally serves as the permitting authority for all waters of the United States, including the construction of wind turbines in Nantucket Sound, part of the OCS. (14) In 2001, Cape Wind Associates, LLC applied for a permit with the USACE to build an offshore wind farm on Horseshoe Shoal in Nantucket Sound, Massachusetts. (15) Subsequently, the USACE determined that it needed to prepare an environmental impact statement (EIS) for this project. (16)

   In 2005, while the USACE was preparing the EIS, Congress passed the Energy Policy Act of 2005 (hereinafter Energy Policy Act) granting the Department of the Interior (DOI) jurisdiction over permitting wind farms on the OCS. (17) The Energy Policy Act specifically granted the DOI jurisdiction to grant leases, easements, and rights-of-way on the OCS for activities that "produce or support production, transportation, or transmission of energy from sources other than oil or gas." (18) Thereafter, the DOI delegated this authority to the Minerals Management Service (MMS). (19)

   As the new lead permitting authority for Cape Wind, the MMS reviewed the application and determined that it needed to prepare a new Draft EIS. (20) The United States Coast Guard (USCG) also served as a cooperating agency for the EIS due to its interests in maritime navigation and safety. (21) On January 13, 2009, the USCG provided the MMS its final findings concerning potential impacts to marine radar from the proposed wind turbines. (22) The MMS's Final EIS, which the agency released on January 16, 2009, included the USCG's terms and conditions for maritime safety. (23)

   Unlike for Cape Wind, which has the potential to be the United States' first offshore wind farm, (24) Congress has not passed legislation providing a clear mandate of authority to any federal agency for permitting wind farms in the Great Lakes. The Energy Policy Act provides the MMS with jurisdiction over only the OCS, (25) defined as "all submerged lands lying seaward" beyond the seaward boundary of ocean-bordering states. (26) However, while most coastal states' boundaries extend three nautical miles from their shores, the offshore boundaries of the Great Lakes states extend until the Canadian border. (27) Since the Great Lakes are not part of the OCS, the MMS does not have jurisdiction over permitting any potential wind farms in the Great Lakes, leaving considerable confusion over the permitting authority for these wind farms. Therefore, construction of offshore wind farms in the Great Lakes requires a different analysis from that used for Cape Wind.

2. POSSIBLE SOURCES OF FEDERAL AUTHORITY FOR PERMITTING WIND FARMS IN THE GREAT LAKES

   Notwithstanding the lack of a Congressional mandate of permitting authority for offshore wind farms in the Great Lakes, several federal agencies potentially will have a role in permitting these wind farms, including the USACE, USCG, United States Fish and Wildlife Service (FWS), and Federal Aviation Administration (FAA).

   1. United States Army Corps of Engineers

      The USACE impliedly has jurisdiction as the lead federal agency for permitting offshore wind farms in the Great Lakes. The USACE's mission is to "provide vital public engineering services in peace and war to strengthen our Nation's security, energize the economy, and reduce risks from disasters." (28) The USACE also has authority to protect navigable waters under the Rivers and Harbors Act of 1899 (RHA). (29) The RHA prohibits any obstruction, not authorized by Congress, to the navigable capacity of the waters of the United States (30) and prohibits building structures on United States waters except "on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army." (31) However, the Secretary of the Army delegated authority to the Chief of Engineers to issue or deny a Department of the Army (DA) permit to build a structure on navigable waters. (32) Here, "structure" includes any "permanent mooring structure, power transmission line, permanently moored floating vessel ... or any other obstacle or obstruction." (33) This broad definition encompasses offshore wind turbines as obstructions on navigable waters. (34) Therefore, if the USACE exercises authority as the lead federal agency for permitting wind farms in the Great Lakes, a developer would need to apply (35) for a DA permit from the Chief of Engineers.

   2. United States Coast Guard

      The USCG is part of the United States Armed Forces, operating as a service in the Navy under the direction of the Secretary. of the Navy during times of war, and during peacetime operations under the auspices of the Department of Homeland Security. (36) The USCG serves to protect the United States' maritime interests, both domestically and internationally. (37)

      Construction of offshore wind turbines in the Great Lakes may implicate the USCG's jurisdiction over navigation. The USCG has authority to protect the navigability of United States waters by implementing and enforcing rules for establishing, maintaining, and operating lights and other signals on floating structures in United States waters. (38) Under its United States Aids to Navigation System, the USCG administers systems of visual, audible, and electronic signals that mark certain obstructions in the water in order to aid mariners in navigation. (39) In its Aids to Navigation Manual, the USCG explained that offshore wind turbines should be marked with private aids to navigation, "so as to be conspicuous by day and night, given to prevailing conditions of visibility and vessel traffic." (40)

   3. United States Fish and Wildlife Service

      The FWS serves to "conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people." (41) The FWS's Project Planning Program is part of the review process for offshore wind turbines under the National Environmental Policy Act (NEPA) either as a cooperating agency or as part of its jurisdiction under various statutes. (42) The Project Planning Program also provides application review and comment for DA permits submitted to the USACE under Section 10 of the RHA. (43) Therefore, if a wind farm developer submits a DA permit to the Chief of Engineers, the FWS may work as a cooperating agency in reviewing the permit. Furthermore, the FWS established the Wind Turbine Siting Working Group to assist wind developers in regards to wildlife considerations and thereby, NEPA...