Under the Submerged Lands Act, Coastal states have jurisdiction over their coastal waters and the use of the seabed from their shoreline extending three nautical miles seaward.1 Federal waters extend from three nautical miles to 200 nautical miles out to sea to the Outer Continental Shelf.2 So while most wind farms would be sited more than three miles from the shoreline and therefore in federal waters, transmission lines running from the turbines to the grid onshore would be required in state waters in order to deliver the electricity produced. State governments have jurisdiction over the permitting and siting of transmission lines running through state waters.
The Energy Policy Act of 2005 grants the Department of the Interior jurisdiction for the approval and siting of offshore wind farms in federal waters. The authority to lease and grant use rights in the seabed to developers is exercised through BOEMRE.
In addition to approval and siting requirements, BOEMRE is required under NEPA to consider the impact on the environment when granting a permit or approval for construction of an offshore wind farm. BOEMRE will need to determine whether to submit an environmental assessment or a more involved environmental impact statement ("EIS"). Under an EIS, BOEMRE will need to consider and identify alternatives to a proposed wind farm and its environmental impacts and consequences, taking into account all relevant statutes and regulations.3
The federal government and individual Coastal states may have overlapping jurisdiction in coastal waters that are considered "navigable waters."4 Under the Rivers and Harbors Appropriations Act of 1899, the Army Corps of Engineers must approve the creation of any obstruction-which would include wind turbines-in navigable waters. So even if a wind farm were to be built in state waters, the federal government would be involved.
Federal and state interests are further intertwined under a process mandated by the Coastal Zone Management Act of 1972 ("CZMA"). Under the CZMA, states have the authority to review projects outside of state waters for consistency with state coastal policies if the proposed activity may impact the resources or uses within state waters. For an offshore wind farm, BOEMRE must make a determination whether a proposed project will affect a state's coastal zone, and if so, it must make a determination whether such project is consistent with the state's coastal policies. Such determination is then submitted to the relevant state agency which then has the opportunity to review and comment upon BOEMRE's determination. The state agency can attempt to impose further restrictions on the activity or permit or appeal the consistency determination to the Secretary of Commerce. If the Secretary finds that the activity or permit is consistent with state coastal policies or is otherwise in the interest of national security, the Secretary can overrule the state's appeal.
Since the development of offshore wind projects necessarily implicates federal, state and local laws and interests, the nascent offshore wind industry will be looking to state governments to provide incentives for future bids to develop offshore wind power. Along the Eastern seaboard, all states other than Connecticut are offering incentives or issuing requests for bids on projects. The State of New Jersey provides a good example of what one state is doing to promote the development of offshore wind.