More Confusion Generating About Regulatory Authority

Yesterday, we had one post regarding questions of whether the Corps or the Secretary of Interior have primary regulatory authority over the Cape Wind project. Here's what the Corps has to say on the issue, at least initially. By way of background, back on January 30, 2003, the Corps published a notice of Winergy's permit application to the Corps of Engineers to install, operate and maintain a fixed tower seven miles southeast of Nantucket to collect data on wind resources. The permit applications and proceedings can be accessed from theCorps' Northeast Office Website . Interestingly, review of the materials there indicate that the Corps also found it necessary to issue a "clarification of its jurisdiction" in response to inaccuracies reported in the media. The Corps' clarification states:

Under its jurisdiction under Section 10 of the Rivers and Harbors Act, the Corps does not lease sites to a permit applicant. The Corps does not secure sites. A permit applicant does not secure a site nor offer exclusive rights to an applicant.

Now, if an applicant were constructing a project in state waters, it could seek a lease from the appropriate state authority. But how, then does an applicant secure rights to construct a project on the outer continental shelf? Does the Department of Interior have the power under the Outer Continental Shelf Act, as now drafted, to grant such leases? Or does an applicant even need to lease the OCS at all - even where the project will occupy a substantial area of the OCS. The mystery remains...and either Congress or the appropriate agencies (to the extent their enabling legislation permits) must resolve these questions for offshore renewable development to proceed unobstructed.

Still on the topic, opponents of the Nantucket Capewind project have been able take advantage of uncertainty to stall development (as I predicted in my piece Regulatory Uncertainty). This article from the Environmental News Network by Bipasha Ray (2/13/03) reports that:

The seabed of Nantucket Sound belongs to the federal government, Attorney General Tom Reilly said Tuesday, refuting an assertion by the Army Corps of Engineers, which has permitted preliminary construction of the nation's first offshore wind farm in the waterway.

Reilly filed a friend of the court brief in U.S. District Court Tuesday, favoring an environmental group and fishers who are suing the Army Corps and a private developer, challenging the legality of a test tower for the proposed Nantucket Sound wind farm.

The Army Corps, which approved the initial data-collecting tower, argued that the federal government did not own the seabed, and therefore the Corps could permit a private developer to build on that land, Reilly's office said.

Reilly wrote in the brief that the Army Corps' position leaves the seabed "wide open to promoters and developers of all stripes and schemes.

"We have not gotten a satisfactory answer to the question of how the federal government can allow a private party to occupy federal land with only a permit from the Army Corps," Reilly said in a statement, adding that a 1986 Supreme Court decision had already established federal ownership. "It is ironic that the United States has demanded that we pay for the use of Nantucket Sound seabed and is now attempting to let private parties use it for free," he said.

.The battle goes on and on....