[House Report 112-252]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-252
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ADVANCING OFFSHORE WIND PRODUCTION ACT
_______
October 14, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2173]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 2173) to facilitate the development of offshore
wind energy resources, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited at the ``Advancing Offshore Wind Production
Act''.
SEC. 2. OFFSHORE METEOROLOGICAL SITE TESTING AND MONITORING PROJECTS.
(a) Definition of an Offshore Meteorological Site Testing and
Monitoring Project.--In this section, the term ``offshore
meteorological site testing and monitoring project'' means a project
carried out on or in the waters of the Outer Continental Shelf
administered by the Department of the Interior to test or monitor
weather (including wind, tidal, current, and solar energy) using
towers, buoys, or other temporary ocean infrastructure, that--
(1) causes--
(A) less than 1 acre of surface or seafloor
disruption at the location of each meteorological tower
or other device; and
(B) not more than 5 acres of surface or seafloor
disruption within the proposed area affected by for the
project (including hazards to navigation);
(2) is decommissioned not more than 5 years after the date of
commencement of the project, including--
(A) removal of towers, buoys, or other temporary
ocean infrastructure from the project site; and
(B) restoration of the project site to approximately
the original condition of the site; and
(3) provides meteorological information obtained by the
project to the Secretary of the Interior.
(b) Offshore Meteorological Project Permitting.--
(1) In general.--The Secretary of the Interior shall by
regulation require that any applicant seeking to conduct an
offshore meteorological site testing and monitoring project on
the outer Continental Shelf (as that term is defined in the
Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.))
must obtain a permit and right of way for the project in
accordance with this subsection.
(2) Permit and right of way timeline and conditions.--
(A) Deadline for approval.--The Secretary shall
decide whether to issue a permit and right of way for
an offshore meteorological site testing and monitoring
project within 30 days after receiving an application.
(B) Public comment and consultation.--During the
period referred to in subparagraph (A), the Secretary
shall--
(i) provide an opportunity for submission of
comments by the public; and
(ii) consult with the Secretary of Defense,
the Commandant of the Coast Guard, and the
heads of other Federal, State, and local
agencies that would be affected by issuance of
the permit and right of way.
(C) Denial of permit; opportunity to remedy
deficiencies.--If the application is denied, the
Secretary shall provide the applicant--
(i) in writing, clear and comprehensive
reasons why the application was not approved
and detailed information concerning any
deficiencies in the application; and
(ii) an opportunity to remedy such
deficiencies.
(c) NEPA Exclusion.--Section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)) shall not apply with respect
to an offshore meteorological site testing and monitoring project.
(d) Protection of Information.--The information provided to the
Secretary of the Interior pursuant to subsection (a)(3) shall be
treated by the Secretary as proprietary information and protected
against disclosure.
PURPOSE OF THE BILL
The purpose of H.R. 2173, as ordered reported, is to
facilitate the development of offshore wind energy resources.
BACKGROUND AND NEED FOR LEGISLATION
The Advancing Offshore Wind Production Act (H.R. 2173)
facilitates the development of offshore wind power by
streamlining the process for the Bureau of Ocean Energy
Management, Regulation, and Enforcement to develop offshore
wind power. The legislation would waive Section 102(2)(C) of
the National Environmental Policy Act (NEPA, 42 U.S.C.
4332(2)(C)) for temporary meteorological towers that cause less
than five acres of disturbance, are removed within five years
of the completion of the project and are installed to test the
viability of an area for potential wind power. This could
shorten the permitting process for installing an offshore wind
project by at least two years.
Obtaining the necessary permits and licenses for an
offshore wind farm is a process that spans multiple agencies
and potential stumbling blocks and is estimated to take seven
years. While the Cape Wind project received approval in April
2011 to begin construction off the coast of Cape Cod in
Nantucket Sound, it was a ten year process that was subject to
numerous bureaucratic delays and red tape.
Under the National Offshore Wind Strategy, the Department
of Energy is pursuing a scenario that includes deployment of 10
gigawatts of offshore wind generating capacity by 2020 and 54
gigawatts by 2030. Those scenarios include development in both
federal and state offshore areas, including along the Atlantic,
Pacific and Gulf coasts as well as in Great Lakes and Hawaiian
waters. Those levels of development will require an expedited
permitting process and the removal of obstacles to meet those
goals.
Because of the long duration from inception to
construction, a great deal of uncertainty surrounds offshore
wind projects. The electricity market, for one, can shift
greatly over the course of seven years. Lawsuits can also be
brought against the project which could further delay
completion or even stop the project. Finally, policies
favorable to offshore wind that may currently exist could very
well be discontinued by the time a project comes to fruition.
Although uncertainty is not prohibitive in and of itself, its
combination with large capital costs for offshore wind makes
any endeavor a risky proposition. Cape Wind, for instance, is
projected to cost $2.5 billion excluding financing costs, while
other projects range between hundreds of millions of dollars to
billions of dollars depending on their capacity. Unplanned
delays, such as lawsuits, drive costs up even further, not to
mention the construction of necessary transmission
infrastructure associated with the offshore generation of
energy by wind.
This type of regulatory uncertainty discourages developers
from investing. Furthermore, it significantly delays this
homegrown American energy from getting to American consumers,
sometimes by several years. Streamlining the permitting process
will enable offshore wind projects to begin construction within
a shorter time frame and allow for quicker production of energy
for American consumers.
COMMITTEE ACTION
H.R. 2173 was introduced on June 14, 2011, by Congressman
Rob Wittman (R-VA). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Energy and Mineral Resources. On June 23, 2011, the
Subcommittee on Energy and Mineral Resources held a hearing on
the bill. On July 13, 2011, the Natural Resources Committee met
to consider the bill. The Subcommittee on Energy and Mineral
Resources was discharged by unanimous consent. Congressman Rob
Wittman (R-VA) offered an amendment; the amendment was adopted
by voice vote. Congresswoman Colleen Hanabusa (D-HI) offered an
amendment designated .002; the amendment was not adopted by a
bipartisan roll call vote of 16-25, as follows:
Congresswoman Niki Tsongas (D-MA) offered amendment
designated .003; the amendment was not adopted by a bipartisan
roll call vote of 17-25, as follows:
The bill, as amended, was then ordered favorably reported
to the House of Representatives by a bipartisan roll call vote
of 24-18, as follows:
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This Act may be cited as the ``Advancing Offshore Wind
Production Act.''
Section 2. Offshore meteorological site testing and monitoring projects
The Secretary of the Interior should decide within 30 days
of receiving a permit application whether to approve a permit
for a meteorological testing project. During that period the
Secretary shall accept public comment and consult with the
Secretary of Defense, the Commandant of the Coast Guard and
heads of affected Federal, State, and local agencies. If the
application is denied, the applicant will receive a notice in
writing and an opportunity to remedy any deficiencies. Section
102(2)(C) of the National Environmental Policy Act shall not
apply to an offshore meteorological testing project as defined
in this section. Any information provided to the Secretary of
the Interior as a result of the project will be treated as
proprietary information.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 2173--Advancing Offshore Wind Production Act
H.R. 2173 would exempt certain weather testing and
monitoring activities on the Outer Continental Shelf (OCS) from
compliance with provisions of the National Environmental Policy
Act (NEPA). Based on information from the Bureau of Ocean
Energy Management, Regulation, and Enforcement (BOEMRE), CBO
estimates that implementing the legislation would have no
significant impact on the federal budget. Enacting H.R. 2173
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
Under the bill, environmental impact reviews under NEPA
would not be required for weather testing and monitoring
activities on the OCS that meet certain requirements related to
the duration of the activities, the amount of seafloor or water
surface disturbed, and the restoration of the project site. The
bill also would establish a permitting process for such
activities and require BOEMRE to act on permit applications
within 30 days. Based on information provided by the agency,
CBO expects that implementing the legislation could affect the
workload of certain BOEMRE offices; however, we estimate that
the budgetary impact of any such effects would be negligible.
H.R. 2173 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on State, local, or tribal governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. CBO estimates that
implementing the legislation would have no significant impact
on the federal budget. Enacting H.R. 2173 would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
We oppose H.R. 2173 because it would establish a burdensome
new permitting scheme that would unduly complicate the process
for obtaining a lease to construct an offshore meteorological
testing facility. The bill would also exempt certain testing
offshore meteorological testing facilities from any review
under the National Environmental Policy Act (NEPA) despite the
potential impacts offshore facilities can have on military
training activities, aviation operations, the laying of
underwater telecommunication cables, and fisheries resources.
The Majority asserts that this bill is good for offshore wind
energy development because it is endorsed by the National Ocean
Industries Association. Yet, as the letter plainly states, the
organization's members are primarily focused on offshore oil
and gas production, not offshore wind development. H.R. 2173 is
not endorsed by the Offshore Wind Development Coalition.
The bill demonstrates a fundamental misunderstanding of the
needs of the offshore renewable energy industry, as evident in
the approach to restructuring how the Bureau of Ocean Energy
Management, Regulation, and Enforcement (BOEMRE) reviews and
approves projects on the outer continental shelf. Currently, an
offshore wind energy developer receives permission to build a
meteorological tower as part of its larger lease application to
construct a wind farm. This is desirable from an industry
perspective because a developer would never want to spend
millions of dollars constructing a weather tower on the outer
continental shelf (OCS) unless the company had certainty that
it could also develop a wind farm on that same parcel. The
industry expressed this in its written statement for record
when the committee held the legislative hearing on this bill.
BOEMRE does not currently offer companies a ``permit and right
of way'' to build offshore meteorological towers or wind farms,
and developers have not shown any interest in obtaining them.
Yet this is what the bill proposes.
Under H.R. 2173, BOEMRE will have to create a new
permitting scheme to build these weather testing facilities and
they would have to be torn down within 5 years. Underscoring
the absurdity of the new permitting mandate in H.R. 2173, the
offshore wind energy industry does not want to install short
term testing facilities for only five years. Installing a
meteorological tower on the OCS is an expensive and complex
construction project, and an offshore wind developer would
prefer leaving the meteorological tower in place for the full
operating life of the wind farm, rather than tearing it down
after 5 years. This was also expressed in the industry's
statement for the hearing record.
Here again, the bill's proponents incorrectly identify NEPA
as the roadblock to the development of offshore renewable
energy. NEPA provides a valuable procedural framework for
evaluating the potential impacts of a proposed project, and it
serves as one of the most effective means of coordinating
interagency consultations, consultations with States, and
consultations with local communities. BOEMRE possesses the
statutory authority to utilize the categorical exemption
process for projects that it has determined do not cause
significant impacts. We recognize that offshore testing
facilities are still a relatively new technology, and that
because of this, some environmental review is appropriate.
Currently, BOEMRE envisions a one year process for reviewing
meteorological testing facilities under NEPA. Eventually, a
categorical exclusion may be appropriate for such facilities,
once BOEMRE has had time to evaluate whether any of these
facilities have caused significant environmental impacts. But
waiving NEPA altogether, which is what H.R. 2173 does, is not
responsible and will lead to BOEMRE rejecting more project
applications.
Under H.R. 2173, BOEMRE must make a final decision on an
application for an offshore meteorological tower and complete
all consultations within 30 days, including reviews under
Endangered Species Act, Magnuson-Stevens Fishery Conservation
and Management Act, National Historic Preservation Act,
National Marine Sanctuaries Act, Marine Mammal Protection Act,
and Coastal Zone Management Act. This is not realistic. In
addition, during this short time period BOEMRE would have to
consult with the Navy on whether a facility would interfere
with critical military training activities. The Navy has
expressed concerns about the bill in formal written comments.
They must consult with the Federal Communications Commission on
whether the siting of a facility might compromise a vital
telecommunications cable. They must consult with the Federal
Aviation Administration (FAA), which is required to conduct an
independent hazard analysis of proposed meteorological towers
and wind farms prior to construction under 49 Sec. U.S.C.
44718. The FAA has also expressed concerns about the bill.
Since BOEMRE has no authority to compel any of these
independent agencies to expedite their own reviews, H.R. 2173
ensures that consultations are an empty exercise if they occur
at all.
During the mark-up of this bill, an amendment was offered
by Representative Hanabusa that would have required the
Secretary of Interior to complete its consultations with the
FAA notwithstanding the arbitrary 30 day deadline imposed by
H.R. 2173. The amendment was defeated 25-16, with virtually all
Republicans opposing. An amendment was offered by
Representative Tsongas that would have required the Secretary
of Interior to complete its consultations with the Secretary of
Defense to ensure that critical military training activities
are not impacted by the siting of renewable energy testing
facilities. Arguing that impacts to military training
activities from the siting of a renewable energy facility are
only a possibility, and not a certainty, the Majority defeated
this amendment 25-16, with virtually all Republicans opposing.
H.R. 2173 is unnecessarily burdensome and fails to address
the real needs of the offshore renewable energy industry in
facilitating the deployment of renewable energy on the outer
continental shelf. The renewable energy industry has not
suggested this solution and
does not support the legislation. It has the potential to
interfere with the activities of other key agencies, including
the Navy, the FAA, and the FCC. We oppose it.
Edward J. Markey.
Gregorio Kilili Camacho Sablan.
Colleen W. Hanabusa.
Rush Holt.
Grace F. Napolitano.
Niki Tsongas.
Frank Pallone, Jr.
Madeleine Z. Bordallo.
Betty Sutton.
Ben R. Lujan.
Raul M. Grijalva.
John Garamendi.