1. Permitting & Policies of Wind on the Water – Great Lakes – Presented By Katherine A. Roek STOEL RIVES LLP June 16, 2009

2. 2 To order any of these books, please contact: Katherine A. Roek * 612.373.8820 karoek@stoel.com * www.stoel.com

3. Why are we discussing offshore? 3

4. Overview Offshore vs. Onshore permitting issues Federal jurisdictional waters vs. State jurisdictional waters Lessons from East Coast State of offshore wind development in the Great Lakes What are other states doing? What does the future hold? 4

5. Permitting Issues Land interest acquisition Local zoning Avian impacts Other wildlife/ endangered species Wetlands Aviation Visual impacts Noise/human health consequences 5 Marine mammals Fish Navigation Existing uses (commercial fisheries, crabbing) Electromagnetic field Creation of new environments / adaptive management Water quality Ease of removal Military radar Jones Act ONSHOREOFFSHORE

6. Siting Authority – Federal Waters Outer Continental Shelf (OCS) under the jurisdiction of: Minerals Management Service (MMS) Federal Energy Regulatory Commission (FERC) 6

7. Siting Authority – Great Lakes 7 Each state – out to center of Lake

8. Siting Authority – State Waters Great Lakes –each state out to center of lake Atlantic/Pacific coasts – up to 3 nautical miles offshore Gulf of Mexico (Texas, Florida) –9 nautical miles offshore –Texas: General Land Office 8

9. Offshore Wind Development – Federal Laws National Environmental Policy Act Submerged Lands Act of 1953 Coastal Zone Management Act Endangered Species Act Clean Water Act Others: –Fish & Wildlife Coordination Act –Rivers & Harbors Act –Migratory Bird Treaty Act –Marine Mammals Protection Act 9

10. Offshore Wind Development – State Laws State environmental policy act (if applicable) Great Lakes submerged lands Water quality Endangered species / wildlife protection Commercial fishing / crabbing Coastal zone management Onshore issues (cables, waterfront development) Marine safety Water rights (?) 10

11. Federal – MMS Leasing Regulations MMS issued final regulations for granting competitive / non-competitive commercial leases, limited leases, rights-of-way and rights-of-use and easements on the OCS. –Finalized proposed regs that were issued July 9, 2008 11 April 22, 2009

12. Federal – MMS Leasing Regulations Types of leases: –Commercial Energy development ~30 years Competitively bid –Limited Data gathering ~5 years BUT: limited power sale permitted 12

13. Federal – MMS Leasing Regulations Regulations also specify: –Required Financial Assurance –Rental Amounts and Operating Fees –Environmental Review Changes from proposed rules include: –Allowance of limited power production during limited lease –Addition of multiple-factor auction format with respect to bidding process 13

14. Interaction between MMS & FERC FERC-MMS signed a Memorandum of Understanding. –FERC will issue licenses for hydro projects on OCS –MMS will issues leases, easements, and ROW on OCS 14 April 9, 2009

15. Great Lakes Permitting / Siting of Offshore Wind U.S. Army Corps of Engineers will be lead federal permitting agency –NEPA review will be triggered through permit Section 10 of Rivers & Harbors Act Section 404 of Clean Water Act –EIS vs. EA? Depends on size, location… –Programmatic assessments? 15

16. Great Lakes Permitting / Siting of Offshore Wind, con’t Other agencies: –State environmental regulatory agencies e.g. Michigan Department of Environmental Quality for placement of structures in the Great Lakes – joint application process already in place –U.S. Coast Guard Guidance on Offshore Renewable Energy Installations (OCS) – will adapt to Great Lakes (Corps, not MMS) –State coastal management agency –Fish and wildlife (state and federal) 16

17. State Initiatives New Jersey –Blue Ribbon Panel to Evaluate Offshore Wind –Ocean Environmental Assessment –$12M in grants –Selected Preferred Developer –Created Energy Master Plan: 1,000 MW by 2012; 3,000 MW by 2020 –Offshore Wind Renewable Energy Certificates All load-serving entities required to obtain ORECs from offshore wind, based on their percentage of retail sales in NJ OREC price to be set by BPU; 20-year term 17

18. State Initiatives, con’t Rhode Island –Ocean Zoning Special Area Management Plan –Selected Preferred Developer –June 2009: Legislation proposed that would require state’s largest electricity supplier to purchase energy from offshore wind farm 18

19. State Initiatives, con’t Michigan –May 2008: Offshore Wind Permitting Dry-Run Wisconsin –January 2009: Public Service Commission – prepared Feasibility Report. Looked at: Engineering and Economic Issues Human Environment Issues Legal Issues Community Involvement Issues 19

20. Consortiums Great Lakes Wind Collaborative –Multi-sector coalition of wind energy stakeholders working to facilitate the sustainable development of wind power in the binational Great Lakes region. Great Lakes Wind Council –Advisory body within the Department of Energy, Labor, and Economic Growth to provide public forum to identify where, in the Great Lakes, wind energy systems may be prudently sited –Report due September 1, 2009 20

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22. Current U.S. Projects Cape Wind (130 turbines, 420 MW, Nantucket) –January 16, 2009: Final EIS (2,800-pages) issued by MMS. Awaiting lease from MMS. –Spring 2009: Received consistency determination, composite approval from state. 22 SOURCE: GreenPeace USA

23. Current U.S. Projects Bluewater Wind (450 MW, Delaware) –July 31, 2008: PPA with Delmarva Power approved by DE Public Service Commission. –Evaluating wind resources, preparing environmental and permitting documents for submission to MMS. 23

24. Current U.S. Projects Deepwater Wind –January 2009: agreement with RI to construct two-phased project: 5-8 turbines in state waters (2012); utility-scale (~400 MW) in federal waters (TBD). –October 2008: selected by NJ Board of Public Utilities to build 350 MW wind farm in federal waters. Includes $19 million in state grant monies (2013). 24

25. Current U.S. Projects Wind Energy Systems Technology (WEST) –2005: Signed lease with TX GLO for 150 MW project. –Meteorological tower off of Galveston has compiled almost two years of data. Great Lakes Energy Development Task Force (off coast of Cuyahoga County, OH – Lake Erie) –Has begun resource assessment. –Spring 2009: feasibility study. 25

26. Current U.S. Projects Long Island Power Authority / Con Edison –Joint FS for interconnection of 350 MW project 13 miles offshore of Long Island, with the ability to extend up to 700 MW. –Interconnect request filed w/ NY ISO. –April 2009: Wind collaborative of state, municipal entities interested in supporting / purchasing power from the project. 26

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28. Resources www.mms.gov/offshore/alternativeenergy/ regulatoryinformation.htm www.awea.org/faq/wwt_offshore.html www.psc.wi.gov www.michigan.gov/dleg www.ri.gov www.nj.gov 28

29. Thank you! Katherine A. Roek (612) 373-8820 karoek@stoel.com www.stoel.com 29