In this post, we will take a brief look at the regulations and permits related to offshore and onshore wind power generation across a range of leading wind markets. Where these regulations are developing, where these regulations fall short, what new regulation is needed.
Regulations in the US
Given the step-change ambition of the American Administration to secure a large capacity wind power generation industry over the next 10 years, it is prudent to also review the regulatory framework in place to underpin this. As it stands, electricity producers must adhere to federal laws including:
- the Public Utility Regulatory Policies Act of 1978 (PURPA) - enacted as part of deregulation of the US energy markets, in response to the crippling oil and gas embargoes of the 1970s. This acted more on the market, and the structure of energy contracts for energy generators. No targeted guidance on wind farms, ahead of the Wind Age.
- the Energy Policy Act of 2005 (EPACT 2005) - This Act put renewables firmly on the agenda - Mandating the US Department of Energy to investigate and research renewable technologies. At the time this Act was passed, the UK had just started operating its first offshore wind farm. At 60 MW capacity, North Hoyle was a minnow compared to the 1GW monster farms such as Dogger Bank that are being commissioned now and this decade.
- the Energy Independence and Security Act of 2007 (EISA 2007) - This Act directly talks to the installation of eligible renewable energy technologies on government buildings. It remains to be seen if this has had a significant impact.
These federal laws are interpreted differently within the individual states, leading to a different development environment depending on where you are. However, the language to communicate 'protect fish and birds', and 'manage defence concerns' are not covered in these Acts. This implies that such regulations are managed elsewhere, dissimilar to equivalent documentation passed in other leading wind energy countries - as we will cover below.
A broader look shows us that these individual concerns: defence, fish, birds, safe shipping passage are all managed by their related agencies as follows:
US Coast Guard / Bureau of Ocean Energy Management
The US Coast Guard advises to the BOEM on matters of offshore wind. In the BOEM Regulatory Framework document, (30 CFR 585 --> in section .102 - there are clear prescriptions about how the BOEM will act to ensure any developments are conducted:
[abridged]
- Safely, protecting the environment, preventing waste
- conserving natural resources
- maximise the economic and benefits the of the Outer Continental Shelf (OCS), while ensuring a reasonable return to the United States
- Protecting national security interests
This department specifically looks at the impact of wind farms on wildlife. Its page refers to analysis regarding raptor, bat and songbird mortality rates near wind farms. It cites the largest risk between birds and wind farms comes when the birds come to take off and land - as this brings their flight altitude within the swept volume of the wind turbines.
As a result, distance to stop off points and roosting areas for these birds is critical. To this end, a segment of their guidance for Fish and Wildlife Service Land-Based Wind Energy Guidelines.
On top of all this, States may also have their own individual mandates to promote renewable energy through Renewable Portfolio Standards (RPS) legislation.
As we looked closer to these specific agencies of the government, we can see:
- Taken together, we can see that the documentation from these government agencies gives clear guidance on the matters that we will see below from other leading wind energy countries.
- While there is some outdated information and guidance on the websites, we can see, from the U.S. Coastguard already that some documentation is being updated.
- The U.S. can also take advantage of lessons learned in regulation design from Europe and China because of rolling out many-GW capacity over the last decade while the US was largely (as a nation) inactive on wind investment.
UK Regulations for wind operators/ developers
There are different regulations by region within the UK and the kind of installation. This even goes down to the level of home-mounted wind-turbines, even though these units are very small and have poorer wind flow if the building itself is shorter and located in an urban area.
There are quite some examples of small wind power units mounted in UK new-build housing estates, apartment blocks and residential buildings. Most of the time these units are not turning or generating power which suggests to me that rather than being a serious attempt at local power generation, they are simply a compliance gambit to get the housing project through an increasingly skeptical council.
Example of residential wind turbine installation - seen here in 2010 - the turbines atop the building are blurry because of movement of turbines. Credit: Google Maps
Example of residential wind turbine installation - seen here in 2019 - in similar weather conditions - picture static because of non-function. As they also still in all previous Google Maps picture over the years since the initial image above. Credit: Google MapsGiven the maintenance requirement for large and small wind turbines, and that these units are typically unaccessible without scaffolding and a specialist access system means they simply aren't maintained. This should highlight for the reader the downside and vulnerability of regulations and permit processes which incentivise certain kinds of construction features.
Be on the guard for seeing such during wind farm development proposals and implementations. Remember, any extras to help push a project through planning approvals can sometimes end up as useless and mothballed appendage once the main facility is up and running.
For the record - local authorities also make provisions around mixed use housing developments to ensure that there is some retail units in the construction - preventing the onset of cheap poor quality housing, housing, housing everywhere. However, in the same vein - because these mixed use retail outlets are purely to help the development get across the planning gauntlet, they often are not populated for a very long time, being unattractive lots.
When we turn our attention to larger, industrial scale onshore and offshore wind turbines, we have a different set of regulations, with onshore wind having much more onerous restrictions than offshore wind.
Onshore Wind - UK Planning Regs
Specifically, when pressed about restoring wind subsidies for onshore wind projects, the Prime Minister Boris Johnson did advise that they would become available in 2021. However, these subsidies come with two key conditions in England. Firstly, any onshore development proposal must be sited within a wind approved zone in Local Plans. Because these plans (maps, layouts, etc) are kept with local councils, and those councils typically are very stretched for budget - there isn't a person to manage this paperwork. Accordingly, getting an area ripe for wind development recognised as such on one of these plans is challenging and does not happen often.
Secondly, any planning impacts relating to the proposed wind farm identified by locals must be investigated. Additionally the whole project must ultimately have local backing. As a result, and I won't lean on this point, the project can quite simply be shot down by NIMBY politics.
Reading between the lines - a cynical interpretation of this could be as follows:
This subsidy plan has the feeling of loud and cheerful approval from country leadership, however when attempting to leverage the plan - it is too onerous, fraught with delays and ultimately a blocker. In this way, the Prime Minister can score cheap political capital and make broad statements, safe in the knowledge that very few onshore prospects will make it past that hurdle.
As a result, such prospects are strongly discouraged by planning regulations with all public voices to the contrary, fully supporting the concept.
Furthermore, bowing to fears for higher bills for consumers, ministers, during the same session, closed the Renewables Obligation 2015 (related to UK 2020 renewable energy targets) to new onshore wind turbine projects which had not already entered a contract or started development.
Offshore Wind - UK Planning Regs
For Offshore Wind - the picture is much clearer and because most offshore wind projects are significant capital projects, there is a strong hand from the state involved.
It may come as a surprise, but the official government page outlining the permits and regulations also treats the issue of community engagement:
"All renewable energy developments take place within a formal planning procedure which allows everyone to be involved in considering the impact of a new project on the environment and the community." - Offshore Wind, Uk.gov
However, there is some reassurance against NIMBY intervention because of a later qualification of this point as follows:
- bird and fish populations
- electromagnetic radar interference
- shipping and flight navigation
- impact on the landscape
Here we can see that the concern moves more away from traditional planning concerns - i.e. too close to homes, interference/ noise for people, blinding/ epilepsy/ photosensitive impacts. Rather here, we can see the impact on other commercial impacts, namely shipping, bird and fish populations. I'll talk to each of these points in turn and try to treat the concerns.
Bird and Fish populations
Fish populations and UK waters are synonymous with each other when discussing problems with industrial activity at sea. The concerns about fishing stocks, fish population diversity, catch methods and catch quotas has been a key media-pushed issue during Brexit. Indeed ever since the Cod Wars, UK fish populations have been a concern generally, and more usefully, a lever for quick media coverage.
What I want to communicate is separate to that side show - that is regarding offshore wind and fish populations. Let's take an objective look at the works for a wind farm:
1) Depth of Water - Depending on depth of water (and much of the time with the wind farms in operations and construction are in approx. 30 m of water ) - you can either pile into the seabed with a monopile, or in deeper waters, look to a floating structure for the foundation of the turbine. With a floating structure, anchoring is important. We took a brief look at anchorage options in a previous post.
With any seabed works, there is risk of damage to reefs and breeding sites for certain species. However, after construction, these installations go from being an open sea-space to one requiring much greater caution. See the below shot of an admiralty chart - we can see that the area is effectively enclosed and this means a restriction - i.e. do not sail through here.
From a legal standpoint, as I understand it, vessels can still sail through a wind farm in the UK, but must keep a 50 m minimum stand-off distance to the turbines. Between novice sailors, and the tight grouping between turbines, this could be a recipe for disaster so likely the vessel will skirt around the edge of the wind farm.
If a wind farm did fall under a strict exclusion zone, this could be considered akin to Enclosure - something witnessed again in the UK as The Tragedy of the Commons, some hundreds of years back (what was a key driving lever to generate the workforce needed to fuel the British Industrial Revolution).
What this means for sea-life however, is that even though small boats can transit through, many will avoid a wind farm. This will result in less traffic going through that area relative to previously. We can see in experiments completed to understand coral reef rehabilitation and also defences from offshore companies against removing oil platform jackets, these installations quickly become home for flora and fauna in the area.
2) Cable Runs - Once the wind turbines are sited and installed - the power from those turbines must be routed to a gathering station - an offshore high voltage substation. from there, the power is routed to an onshore power grid. As a result, for each turbine, there is at least 1 trench (which if filled with the data cables, power cables and left exposed).
A video of the Van Oord Cable laying vessel from Gemini Wind - here laying infield cables - the connections between wind turbines and the HV substation. Credit: Gemini Wind, via YoutubeThis work does not damage the seabed like trenching does for oil and gas pipelines. By laying the cables on the seabed, the surrounding structures are left relatively intact.
Regulations in Germany
The picture for wind power in Germany is slightly different to the UK. Where the UK legislation seems to promote wind projects because of residential / town planning concerns, a recent German regulation covers wind turbine spacing to residential areas. In a regulation passed in June 2020, the minimum separation distance of a wind farm to residential areas to minimum 1000 m. This regulation specifically aims to ensure minimum impact to residential areas from wind power negative impacts, including sound and photosensitivity effects.
However, because this federal legislation is not binding, devolved states of Germany can set for themselves how far up to 1000 m the spacing should be. This means we could see some inconsistency in how this is applied, leaning to lower spacing in states which are keen for wind power, and those states with coal power industry, lobbying efforts could be expected to push for the maximum spacing and reduce the availability for feasible spaces. Indeed, on the part of wind-favoured states, opinion polls advise that wind power is more popular in areas with operational wind farms.
Interestingly, there German Constitutional Court recently found that the 2017 "Wind Energy at Sea Act" is partly in conflict with the Federal constitution. This sounds counter-intuitive, however, it is centred around offshore wind projects Kaikas.
This 580 MW capacity prospect, 110 km offshore was originally pre-worked by developer WPD, using their own capital to do so. Ultimately the project, gained approval by the Federal Maritime and Hydrographic Agency in 2013. In this example, the mandated mechanism for wind power developer remuneration was the Electricity Feed In Act (1991).
The cutover to an Auction mechanism came during the 2014 implementation of the Erneuerbare-Energien-Gesetz (Renewable Energy Act). It was after this, that the tender and approvals of offshore wind became unconstitutional regarding those projects which had been approved and assigned under the previous Act.
A feed in tariff is typically a more expensive mode of remuneration to renewable generators, typically deployed to incentivise developers to stake their own capital. This kind of inducement was common in both solar and wind to help prove the technology and commercials before it was a 'guaranteed' positive return on investment. As wind capacity started to take off in the early-to-mid 2010s, it may have presented to government accountants that continued federal support on that mechanism would quickly become unsustainable, especially without a time-based taper of the rate. As a result, it is likely that in order to reduce costs to the state, and align with tender/ auction structures deployed in other European countries successfully, the bureau made the cut-over in the 2014 Act.
As a result, the original approval to WPD was rescinded, but instead of being given "Right To Enter" the subsequent tender (and to try to win the development in the new auction process), financial compensation was offered instead. Having been blocked from the opportunity to build a revenue-generating wind asset, the developer was unable to participate. This is the non-constitutional element.
This highlights the need for fore-sight when designing regulation to ensure flexibility to modify terms and yet remain aligned end to end. In this way, it is only partly unconstitutional.
In the Renewable Energy Sources Act 2021, there is specific provision to make legally binding requirements for renewables contribution to the German grid mix - 65% by 2030. Specifically,
Reading the Offshore Wind Energy Act - as it relates to planning and approvals stages, the approvals part of the Act covers much the same areas that the UK regulation covers:
"
the marine environment is not endangered, in particular
a) there are no concerns about pollution of the marine environment within the meaning of Article 1 paragraph 1 number 4 of the United Nations Convention on the Law of the Sea of 10 December 1982 (Federal Law Gazette 1994 II p. 1799) and
b) no danger is posed to bird migration, and
the safety and efficiency of traffic is not impaired,
the security of the defence of the nation and the Alliance is not impaired,
it is compatible with priority activities under mining law,
it is compatible with existing and planned cables, offshore connections, pipelines and other lines,
it is compatible with existing and planned sites of converter platforms or transformers,
the undertaking pursuant to Section 66 subsection 2 has been declared effective if the plan refers to offshore wind energy installations, and
- other requirements imposed by the Act and other public law provisions are met. "
As it relates to offshore wind, there are further qualifications. Namely that:
- Approvals are only be given if the applicant party has a funding - i.e. they have the means to fulfil the obligations post-award.
- The approval can be revoked if the party does not act to operate the site within 3 years (i.e. must have constructed and started operations), or if agreed deadlines are not met (this talks to the point of Federal policy toward renewable capacity generation. Even though the constructions and operations aren't federally owned, the government is liable if the operator misses the renewable targets deadlines agreed at national level.
Further, any awards are made on the provision of a 25 year life which can be applied for an extension up to 5 years, if the operator doesn't apply for a follow-up - likely related to re-powering/ applying newer turbines.
How are these regulations evolving?
Certain base components of these regulations are the same between nations - namely elements related to safe shipping, defence and bird safety.
However, it is interesting that the German regulations look closer at the impact integration of new farms and substations with existing infrastructure (both of wind farm and oil-and-gas types). Given the criss-crossing of the seabed with cable runs and offshore infrastructure, it is critical that such is considered. This has far reaching implications: if the laying of new cables interfere with subsea gas or oil export pipelines, and cause a loss of primary containment (an LOPC) this could be a political and environmental headache.
There is some excellent research collating and comparing, contrasting of the regulations across all European states with regard to wind power. In this, we can see a whole range of considerations, from tender design, to subsidy provision, connection to grid, and distribution of generation assets relative to the location of the consumers. However, as discussed above - if animal protection, nation defence and shipping are sacrosanct, there is no way to improve on this. The attention then moves rightly, to the commercials and how to apply a little government incentive as a lever to move the whole industry, and nation forward to successfully meet Renewables Policy Goals.
It is clear that those states with more mature and larger wind capacity, having invested and engaged with it earlier are less likely to deploy a Feed-In Tariff because there is sufficient competition and industry in that country to sustain without over-support from governments.
Some other questions we might ask of these regulations:
Do they differ by requirement on size of wind farm/ size of operator?
What are the shortcomings of these regulations? Where do they not go far enough?
Is there anything about local labor/ local content (innovation/ manufacturing locally)? Is this the right place for that?
You can reach me on Twitter @Ronnie_Writes
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