[House Report 112-252]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-252

======================================================================



 
                 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.

                                  
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