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When someone proposes to build a wind farm in the ocean, who has the authority to grant them a permit?
Under Section 10 of the Rivers and Harbors Act of 1890, the Army Corps has authority to grant private parties permits to construct structures in the navigable waterways. It also has the right to grant permits to occupy submerged federal lands of the Outer Continental Shelf (OCS) for the purpose of extracting oil, gas and other minerals. The Army Corps is currently claiming the authority to grant rights to submerged federal lands by permitting the development of offshore wind energy projects. The Army Corps claims such authority under § 4 of the Outer Continental Shelf Lands Act of 1953 (OCSLA). That section, on its face, does not authorize the Army Corps to permit offshore renewable energy development on the OCS. The OCSLA was enacted for the express purpose of authorizing and regulating the extraction of oil and gas and other minerals from the OCS. There is no mention of renewable energy anywhere in the OCSLA; therefore such authority does not appear to extend to the development of offshore wind energy projects. Unauthorized use of the OCS is a violation of the public trust doctrine.
If the Army Corps of Engineers grants permits to build wind farms or other structures in the OCS, would the government charge rents or royalties, as they do with oil and gas development in the ocean?
Currently, those who develop the OCS for the production of oil and gas are required to reimburse the federal government for their use of such a public trust resource. This is the case, for example, with companies operating oil and gas wells in the Gulf of Mexico. The OCSLA directs the Department of Interior, through the Minerals Management Service, to collect royalties, rents, and bonus bids from offshore leases for the production of oil and gas. Part of the policy behind the OCSLA is to ensure that the federal government receives fair market value for both lands leased and the production that might result from such offshore leases. A portion of the revenue collected from offshore leases is disbursed to states in an effort to address impacts on state resources from offshore development. If the government were to allow a wind farm or other private for profit development to be constructed in federal waters without paying rents or royalties it would be counter to current policy to reimburse the federal government and states for the exploitation of a public resource.
Why is the permitting of the development of an offshore wind farm such a big concern?
A wind farm, such as that proposed by Cape Wind for Nantucket Sound, sets a precedent for the way in which we permit the use of federal waters. If a permit is issued for construction of any structure, whether it is a "data tower" like that constructed by Cape Wind Associates on public land in Nantucket Sound, or a large wind farm, other potential developers may seek to use the same mechanism for permitting their own projects. Because the Rivers and Harbors Act and the OCSLA do not specifically mention the development of projects other than oil and gas and mineral extraction, permitting Cape Wind's activities appears unlawful because no property rights mechanisms currently exist to ensure offshore resources are managed in the public interest. Allowing this development to proceed without clear permitting authority sets a dangerous precedent for allowing further violations of the public trust in federal waters; as this will make it easier to construct many other facilities such as additional large-scale windfarms, offshore aquaculture facilities, floating casinos, liquefied natural gas facilities, and undersea cables and pipelines.
So if there is no clear permitting authority, can't Congress create one?
Yes. This has been the subject of a great deal of debate. Some members of Congress would like to give the authority to issue permits and review proposed developments to the National Oceanographic and Atmospheric Administration (NOAA), which has jurisdiction over many of the uses of the ocean including development of thermal energy and protection of the ocean ecosystem, including fish and marine mammals which could be affected by any offshore developments. Other members of Congress would like to vest the permitting authority in the Minerals Management Service, which currently has authority over permitting offshore oil and gas development. The question of who should have permitting authority has not yet been settled, but is likely to be debated in the 2004 session of Congress.
Until the authority for permitting and environmental review is clarified, we believe that the Army Corps should not issue permits for development of the OCS until Congress acts to develop legislation regarding how the nation's coastal and offshore resources are to be managed in the public interest. Congress could act by developing a leasing program similar to that authorized under the OCSLA for the offshore development of oil, gas and other mineral resources. Such a leasing program would protect federal lands by providing a mechanism for establishing property rights and therefore discourage the uncontrolled and unauthorized development of the OCS. |
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