NVIC 02-07: Coast Guard role in offshore renewable energy installations

NAVIGATION AND VESSEL CIRCULAR NO. 02-07

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — PURPOSE.

The purpose of this Circular is to provide guidance on information and factors the Coast Guard will consider when reviewing an application for a permit to build and operate an Offshore Renewable Energy Installation (OREI) in the navigable waters of the United States. This Circular identifies information that the Coast Guard will consider when evaluating the potential impacts of an OREI in the areas of navigational safety and the traditional uses of waterways and on Coast Guard missions. This will assist the Coast Guard in providing input to Minerals Management Service (MMS) or another lead permitting agency for environmental review and decision making purposes. Additionally, this Circular provides guidance to members of industry, port safety and security stakeholders, and the general public on the Coast Guard's role and responsibilities in the OREI application process.

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — ACTION.

a. The Coast Guard will be a cooperating agency under the National Environmental Policy Act (NEPA) with MMS or another lead permitting agency considering the issuance of a lease, right of use and easement, or right of way for an OREI. As such, the role of the Coast Guard is limited to providing any such lead permitting agency with an evaluation of the potential impacts of the proposed facility on the safety of navigation and, the traditional uses of the particular waterway and other Coast Guard missions in order for MMS or another lead permitting agency to prepare their Environmental Impact Statement (EIS). The Coast Guard should help develop appropriate terms and conditions that provide for navigational safety and minimize potential impacts on other Coast Guard missions in and around the proposed facility and recommend them to MMS or another lead permitting agency for consideration. The Coast Guard will not approve or disapprove an OREI application. The Coast Guard's role is limited to assessing navigation impacts of an OREI and forwarding such considerations to the lead permitting agency. b. Applicants planning to build an OREI are encouraged to refer to this Circular to better understand the Coast Guard review process, provide information to assist the Coast Guard and expedite this process, and for guidance on addressing the necessary marine safety and security issues when preparing their application for submission to MMS or another lead permitting agency. c. This Circular will be distributed by electronic means only. It is available on the World Wide Web at http://www.uscg.mil/hq/g-m/index.htm.

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — DIRECTIVES AFFECTED. None

DIRECTIVES AFFECTED. None

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — BACKGROUND.

a.

OREI History: To reduce the United States' dependence on foreign energy supplies, alternative energy sources are being pursued.

While much research continues to be done on various forms, recent developments have made the pursuit of renewable energy sources especially attractive.

Often these techniques seek to exploit naturally occurring renewable sources such as solar, wind, and hydrodynamic energy.

Although no OREIs presently exist in U.

S. waters, several are contemplated following the successful demonstration of this technology in other countries around the world including the United Kingdom and Denmark. b.

Permitting Agency for OREI on the Outer Continental Shelf (OCS): The Department of the Interior (DOI), under the authority of the Energy Policy Act (EPAct) of 2005, is the lead Federal agency for permitting and approval of OREIs located on the OCS.

DOI has delegated this authority to the MMS.

Once MMS receives an application for an OREI permit, in accordance with the NEPA, MMS is required to complete an EIS. c.

Other Permitting Agencies: For OREIs located other than on the OCS, other agencies such as the Army Corps of Engineers (ACoE) or Federal Energy Regulatory Commission (FERC) may be the lead permitting agency.

Regardless of who the lead permitting agency is, the Coast Guard's role remains that of providing assistance to the lead permitting agency as described in paragraph 2.a which is to recommend reasonable terms and conditions necessary to provide for navigational safety and minimize potential adverse impacts on Coast Guard missions. d.

Coast Guard Authority: The Ports and Waterways Safety Act (PWSA) acknowledges that navigation and vessel safety and protection of the marine environment are matters of national importance.

The PWSA requires the Coast Guard to conduct studies when indicated to provide safe access routes for vessel traffic in the waters under the jurisdiction of the U.

S.

In addition, the Coast Guard must take into account all possible uses of the waterways to reconcile the need for safe access routes with the needs of all other uses of the waterways.

The Coast Guard plays an important role in assisting MMS and other lead permitting agencies whose activities touch upon Coast Guard missions described above.

The Coast Guard will consider the application and make recommendations to MMS or another lead permitting agency concerning the impacts of OREIs. e.

Involvement of Other Agencies: Other Federal agencies that may be involved in the process include the Departments of Commerce, Defense, Energy, and Transportation, and the Environmental Protection Agency (EPA).

In addition, appropriate state agencies and tribal governments may also be involved.

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — DISCUSSION.

a. OREI Safety Concerns: The concerns caused by the construction and location of an OREI are primarily related to their impacts on marine navigation safety. An OREI's proposed location may physically affect commercial shipping, fishing and/or recreational boating operations, or other traditional uses of the particular waterway. In addition, the OREI may affect the performance of electronic navigation systems used in the maritime environment, including radars and communications systems. b. USCG and MMS Cooperation:

(1) Under authority delegated by DOI, MMS is the permitting agency for OREIs to be located on the OCS. As such MMS will prepare a programmatic EIS. In addition, MMS inherited the responsibility to review proposals which were originally submitted to the ACoE by Cape Wind Associates for a wind turbine park on Nantucket Sound and Long Island Offshore Wind Park (LIOWP), LLC, for a wind turbine park off Long Island, NY. As part of its review process and as lead permitting agency, MMS will develop EISs for these specific projects.

(2) MMS invited the Coast Guard to be a cooperating agency under NEPA for both projects as well as for its programmatic EIS. The Coast Guard has agreed to be a cooperating agency under NEPA for the Cape Wind and LIOWP projects, and for MMS' programmatic EIS. The Coast Guard will serve as a subject matter expert for maritime safety, maritime security, maritime mobility, national defense, and protection of natural resources. The Coast Guard will provide MMS with expertise and resources at the earliest possible time in MMS' NEPA process. Future MMS NEPA documents may be handled in a similar fashion. However, the Coast Guard will determine its cooperating agency role on a case-by-case basis.

(3) During MMS' preparation of their NEPA documentation, the Coast Guard should participate at the earliest possible time. This includes "the scoping process" as defined in the Council on Environmental Quality (CEQ) regulations (40 CFR 1501.7).

(4) The Coast Guard and MMS recognize the important role that risk management strategies play in ensuring the safe, secure, and environmentally responsible construction and operation of an OREI. Vessel, facility, and waterway navigational safety and security assessments are a key component of the risk management approach. Accordingly, the Coast Guard and MMS have agreed that future OREI applicants, at the time they formally submit their proposal, should commence a navigational safety risk assessment for the proposal. Useful guidance on conducting a navigation assessment such as this can be found in this NVIC.

(5) The assigned Coast Guard Sector should make contact with MMS as early as possible in the permitting process for an OREI, to identify and establish communications with the Project Manager assigned by MMS. c. USCG Cooperation: The Coast Guard, when requested by any lead permitting agency to be a cooperating agency, may agree to be a cooperating agency for the identified project and will serve as a subject matter expert for maritime safety, maritime security, maritime mobility, national defense, and protection of natural resources. d. Role of the OREI Applicant:

(1) Applicants should file their applications for an OREI permit to MMS in accordance with regulations or procedures established by MMS or another appropriate lead permitting agency.

(2) OREI applicants and their environmental and risk assessors evaluate, based on guidance in this NVIC and available information, all navigational issues that could be reasonably foreseeable by which the siting, construction, establishment, operations, maintenance and/or decommissioning of an OREI could 1) cause or contribute to an obstruction of, or danger to, navigation; 2) affect traditional uses of the particular waterway where the OREI will be located; or 3) impact the Coast Guard's search and rescue mission, or otherwise impair any other Coast Guard missions. Such an evaluation should be reflected in the preparation of applicable assessments, scoping documents, engineering reports, and environmental review documents such as EISs.

(3) OREI applicants should address and utilize existing studies or any known standard industry practices that have been conducted or created for similar OREIs by other governments or agencies, such as the United Kingdom or Denmark, to determine any applicability of the studies or industry practices for their specific OREI.

(4) OREI applicants and their environmental and risk assessors should assess potential navigational or communications impacts to any mariners or emergency services providers using the site area and its environment. Those impacts which could contribute to a marine casualty leading to injury, death, or loss of property, either at sea or among the population ashore, should be highlighted as well as those affecting emergency services. Consultation with Federal, State, and local search and rescue authorities should be initiated and consideration given to the types of vessels and equipment which might be used in emergencies. This should include the possible use of OREI structures as emergency refuges.

(5) Additional assessments should be made of the consequences of vessels deviating from normal routes or recreational craft entering shipping routes in order to avoid proposed sites. Special regard should be given to evaluating situations which could lead to safety of navigation being compromised (e.g., an increase in risk of collision, reduction in sea-room or water depth for maneuvering, etc). e. Risk Management and Standards:

(1) Since the risk factors for OREIs vary significantly from location to location, it is not possible to create a "one-size-fits-all" policy. Rather, the applicant should use a risk-based approach when evaluating the impact its OREI will have on the particular waterway being considered. This risk analysis should address two major areas of concern: 1) navigational safety and the impact on traditional uses of the particular waterway where the OREI will be located; and 2) impacts on other Coast Guard missions. Depending on the complexities of the waterway and range of stakeholders involved, the applicant is encouraged to consult with appropriate stakeholders concerning navigational safety issues and the adequacy of its risk assessment. More specific guidance on the risk assessment process is provided in enclosures (4) through (8). Risk management guidance, which lists risk factors and mitigating strategies, is provided in enclosure (9). Further guidance on risk assessment can be found in reference (f).

(2) The effective management of risks begins with a sound understanding of the hazards. OREIs can adversely affect navigational safety. Therefore, the issues related to navigational safety as described in enclosures (4) through (8) are the primary focus of the risk assessment. The recommended risk assessment approach is a "change analysis" technique whereby the potential impacts of the OREI can be considered and compared to the baseline situation. The risks associated with the proposed OREI should be assessed and appropriate risk mitigation strategies should be developed and evaluated. Guidance on performing a change analysis is contained in reference (f).

(3) In order for the Coast Guard to evaluate a risk assessment and provide MMS appropriate recommendations, it is important that the data considered is described, the experts consulted are identified, and the assumptions made are thoroughly explained. To evaluate the risk assessment, consideration must be paid to the suitability of the approach; the appropriateness, reliability, and validity of the data; and any potential biases that might influence the expert's judgment or conclusions. In addition, the uncertainty associated with the estimates should be described and a sensitivity analysis of the key assumptions performed. The sensitivity analysis should include worst-case scenarios. f. Stakeholder Involvement: The navigational safety risk assessment process should be conducted in cooperation and consultation with a wide range of Federal, State, and local agencies; local maritime industry representatives; and the general public. Specific groups to consider include representatives of the fishing industry; recreational boating; passenger vessels; tug and barge companies; large commercial vessels; pilots; port authorities; waterfront facility owners and operators; law enforcement personnel; emergency responders; environmental groups; and any other stakeholders for the waterway in which the OREI will be placed.

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — IMPLEMENTATION.

After an applicant files an application with MMS or the proper lead permitting agency in accordance with their applicable regulations/requirements: MMS or the lead permitting agency will— • Advise Commandant (CG-3PWN-4) of the receipt of an application. • Forward the application or parts of it as appropriate to Commandant (CG-3PWN-4). • Inform Commandant (CG-3PWN-4) that it has advised the applicant of the availability of this NVIC.

Commandant (CG-3PWN-4) will— • Acknowledge receipt of the application to MMS or lead permitting agency. • Forward a copy of the application to the appropriate Coast Guard Area Commander within whose Area of responsibility (AOR) the OREI will be located. • Provide assistance with interpreting/validation of technical data submitted by the applicant if requested by the Sector, District, or Area Commander. • Provide MMS or the lead permitting agency with the name of the Sector's Point of Contact (POC) and authorize direct liaison between the Sector and MMS or the lead permitting agency. • Review the Area and District Commanders' recommendations that include proposed terms, conditions, and mitigation measures. • Provide a final package containing the Coast Guard's recommendations that include proposed terms, conditions and mitigation measures to MMS or the lead permitting agency.

Area Commanders will— • Review the application and forward to the appropriate District Commander within whose AOR the OREI will be located. • Obtain from the District Commander and provide to Commandant (CG-3PWN-4) the name of the Sector's Point of Contact (POC). • Review and forward, with endorsement, the District Commander's recommendations that include proposed terms, conditions, and mitigation measures.

District Commanders will— • Identify the Sector and its POC who will be responsible to review the application per this NVIC and provide this information to Commandant (CG-3PWN-4) and the Area Commander. • Review the Sector's input. • Forward the Sector's recommendations to include proposed terms, conditions, and mitigation measures with endorsement to Commandant (CG-3PWN-4), via the Area Commander.

Sector Commanders will— • Consult with stakeholders as appropriate. • Work with the applicant in the review of the application. • Work with MMS or the lead permitting agency as necessary in the review of the application. • Provide recommendations that include proposed terms, conditions, and mitigation measures concerning the OREI to the District office.

Enclosure (2) provides a flow/milestone table.

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — DISCLAIMER. Each Coast Guard Sector has discretionary authority over how best to address specific safety and security concerns within their AOR. Nothing in this NVIC is meant to override or subvert the discretion of the Sector when addressing the unique safety and security concerns for an OREI operation within their AOR. While the guidance in this document may assist industry, the genera

7. DISCLAIMER. Each Coast Guard Sector has discretionary authority over how best to address specific safety and security concerns within their AOR. Nothing in this NVIC is meant to override or subvert the discretion of the Sector when addressing the unique safety and security concerns for an OREI operation within their AOR. While the guidance in this document may assist industry, the general public, the Coast Guard, as well as other Federal and State regulators in applying statutory and regulatory requirements, the guidance is not a substitute for applicable legal requirements, nor is it a regulation itself. Thus, it is not intended to nor does it impose legally binding requirements on any party, including the Coast Guard, other Federal or State agencies, or the regulated community.

Guidance on the Coast Guard's role and responsibilities for Offshore Renewable Energy Installations (OREI). — CHANGES. This Circular will be posted on the web at www.uscg.mil/hq/g-m/nvic/index00.htm. Changes to this Circular will be issued as necessary. Suggestions for improvements of this circular should be submitted in writing to Commandant (CG-3PWN-4).

C. E. BONE Rear Admiral, U.S. Coast Guard Assistant Commandant for Prevention Encl: (1) Glossary (2) Flow/Milestone Table