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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you.

Thursday
Aug132015

30-Year BGEPA Take Permit Invalidated by Federal District Court

The U.S. District Court for the Northern District of California on Tuesday struck down a U.S. Fish and Wildlife Service regulation allowing issuance of 30-year take permits under the Bald and Golden Eagle Protection Act.  The court’s holding is a blow, albeit likely temporary, to wind power developers seeking certainty about liability for take of eagles under BGEPA.  

The court in Shearwater v. Ashe held that USFWS violated the National Environmental Policy Act by adopting the 30-year permit rule without conducting an environmental impact statement or environmental assessment.  USFWS claimed that the rule was “strictly administrative” in nature and therefore fit within the NEPA categorical exclusion for federal actions that have no significant effect on the environment.  The court disagreed, citing, among other things, USFWS staff comments that it was a “no-brainer that [FWS] needed to do a NEPA analysis” and that the 30-year permit rulemaking process was a “trainwreck.”    

The 30-year take permit framework was adopted by USFWS in December 2013, replacing the previous regulation that allowed issuance of BGEPA take permits for a maximum duration of five years.  The increase to 30 years was adopted primarily to address concerns by wind power developers that “the five-year maximum tenure of permits under the Eagle Take Rule is fundamentally unworkable for the industry considering the life of most wind projects is 20 to 30 years.”  The court noted that, “[w]hile promoting renewable energy projects may well be a worthy goal, it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action.” 

The court remanded to rule back to USFWS, which will presumably revive the 30-year permit program by conducting an EA or EIS to satisfy NEPA’s procedural requirements.

Monday
Aug102015

Governor Baker Appoints Verrill Dana Attorney Harlan Doliner to Seaport Economic Council

Massachusetts Governor Baker recently appointed Verrill Dana attorney Harlan Doliner to the newly established Seaport Economic Council. The duties and responsibilities of the Council include designing and implementing a statewide growth strategy for the maritime economic sector that includes clean energy. Governor Baker established the Council pursuant to Executive Order No. 564, which establishes the Council’s duties as follows: 

  1. researching and monitoring economic activity in the local, national, and global maritime economy so as to make informed, up-to-date policy and funding recommendations to the Governor;
  2. using best available science and information regarding potential threats to coastal communities from rising sea levels and extreme weather events in order to evaluate and improve the sustainability and resilience of projects in which the Council invests;
  3. designing and implementing a statewide growth strategy for the maritime economic sector, including: trade, science and technology, recreation and tourism, clean energy, and the seafood industry;
  4. coordinating state agencies’ activities which are associated with coastal community planning and investment activities, with the aim to stimulate sustainable economic development and create jobs in the maritime economy sector as well as to protect coastal assets;
  5. designate, for investments across the maritime economic sector, capital funds authorized by the Legislature and allocated by the Governor to the Council;
  6. designate, for investments in resilient coastal infrastructure, capital funds authorized by the Legislature and allocated by the Governor to the Council; and
  7. reviewing state programs and regulations relating to the Commonwealth’s coastal communities and advising the Governor as to their effectiveness.

The Seaport Economic Council replaces the Seaport Advisory Council.

Harlan brings to the Council over 37 years of experience in practicing environmental, energy and maritime law. He is honored by this opportunity to advance Massachusetts’s clean energy policy as integral with the economic progress of its ports.

Monday
Jul062015

Foundations for First U.S. Offshore Wind Farm Head for R.I. 

The following was originally posted by Christopher Monroe on Verrill Dana’s Maritime Law Blog, Law on the Water Line: www.atlanticmaritimelaw.com.

Recent reports from the Associated Press indicate that massive steel foundations for the Nation’s first offshore wind project will soon leave fabrication facilities in Houma, Louisiana, destined for Block Island, Rhode Island. According to Deepwater Wind, the 5-turbine Block Island Wind Farm is scheduled to be online during the third quarter of 2016 and could supply most of Block Island’s power.

The full article can be read here.

Thursday
Jul022015

Wind Industry Service Operation Vessels Christened in Germany 

The following was originally posted by Christopher Monroe on Verrill Dana’s Maritime Law Blog, Law on the Water Line: www.atlanticmaritimelaw.com.

Siemens and ESVAGT A/S recently announced the christenings of two purpose-built Service Operation Vessels (SOV’s) specifically engineered to service and maintain offshore wind power plants. According to company literature, the christenings demonstrate ESVAGT’s ongoing commitment to transfer their maritime vessel competencies from offshore oil and gas to the somewhat younger offshore wind industry.

While ESVAGT owns the service vessels, Siemens provides their proprietary BlueDriveTM propulsion system to reduce CO2 emissions and fuel consumption, as well as hydraulic systems to support the Amplemann active access gangway. The new vessels will purportedly revolutionize offshore wind service by increasing productivity, accelerating response times, and implementing advanced safety mechanisms that will allow turbine access in significant wave heights of up to 2.5 meters (8.2 ft), which is higher than the safety limits of traditional crew transfer vessels (CTV).

The recent investment in the purpose-built vessels reflects a global trend in the offshore wind industry to build wind facilities further offshore. The two recently-christened vessels will service the North Sea and Baltic Sea, while a third vessel will join the fleet in autumn 2016 and service wind facilities off the east coast of England.

Wednesday
Jun242015

USFWS Explores MBTA Incidental Take Permit

The U.S. Fish and Wildlife Service has announced that it is looking into the creation of an incidental take permitting program under the Migratory Bird Treaty Act.  Currently the regulations under the MBTA only authorize incidental take for hunting; military readiness; scientific collection, falconry and other special purposes; and to control birds that cause depredation.  

USFWS will be preparing a programatic environmental impact statement (PEIS) to evaluate the impacts of setting up a comprehensive incidental take permitting program.  Four initial options have been identified:

  • Programmatic authorization for take associated with certain activities and industries.  The activities initially identified by USFWS are oil, gas and wastewater disposal pits; gas exhaust pipes at oil production facilities; communication towers; and electric transmission and distribution lines.  Other activities, specifically wind energy generation, are under consideration.
  • Individual permits authorizing activities on a case-by-case basis.  This option could exist in tandem with the programatic authorization option to permit incidental take for activities not included in the programmatic exemption.
  • Memoranda of understanding with federal agencies.  This is analogous to a programmatic authorization for incidental take caused by federal agency activities.  Whether such an MOU would authorize take by a third party acting under a federal regulatory program (e.g. pursuant to an Army Corps Section 404 permit) is under consideration.
  • Voluntary guidance.  This option would be a continuation of the status quo, where USFWS would not provide legal authorization in the form of a permit, but would use its enforcement discretion to give a pass to activities conducted in accordance with its guidance.  

USFWS will be accepting comments regarding its initial proposals until July 27.  In the meantime, USFWS is holding “open houses” on its proposal and will present a webinar on July 8.  USFWS has also created a website just for the MBTA rulemaking.

Hundreds of millions of migratory birds protected under the MBTA are killed by human activity every year.  The creation of a permitting system that allows otherwise lawful, socially desirable activity to go forward without relying on USFWS’s enforcement discretion to avoid criminal liability is long overdue.

Wednesday
May062015

News Flash: Wind Power Reduces Carbon, Other Harmful Emissions

A report released this week finds that wind power plays a significant role in reducing carbon and other harmful emissions in the state of Maine by displacing energy generation from traditional power plants.

The study, conducted by Massachusetts-based consulting firm Sustainable Energy Advantage, examined the environmental impacts of the 431 MW of wind power existing in Maine as of 2013, as well as a projection of 1,782 MW expected to be installed by 2020. 

The report estimates that Maine’s 2013 wind power fleet resulted in annual reduced carbon emissions equal to 1.1 billion miles driven by an average car. By 2020, the reduction in carbon emissions is projected to be equal to 4.8 billion car miles.

The full report can be read here.

Monday
May042015

Bruce Williamson Nominated to Maine Public Utilities Commission

Governor LePage announced today that he has nominated Bruce Williamson to the Maine Public Utilities Commission.  If confirmed, Dr. Williamson will be the third LePage appointee to the Commission, joining Mark Vannoy, Chair and Carlise McLean, Commissioner.

According to the Governor’s press release, Dr. Williamson is an economist at the University of Tennessee’s Howard Baker Center for Public Policy.  Dr. Wiliamson’s linked-in profile indicates that since June 2013, he has been the Senior Economist for the University of Tennessee’s Institute of Nuclear Security.

Dr. Williamson earned his PhD in economics at the University of New Mexico; holds an M.A. in International Relations from the Korbel School of International Studies in Colorado; and has an undergraduate degree from Cornell University.