NEPA Permitting Process Crucial to Renewable Infrastructure Project Success

ACHP: Advisory Council on Historic Preservation

BLM: Bureau of Land Management

BMP: Best management practices

BOEM: Bureau of Ocean Energy Management

Call: Call for information and nominations

CBA: Community benefits agreement

CEQ: Council on Environmental Quality

COP: Construction and operations plan

DEIS: Draft environmental impact statement

EA: Environmental assessment

EIS: Environmental impact statement

FAST-41: Fixing America’s Surface Transportation Act, Title 41

FEIS: Final environmental impact statement

FONSI: Finding of no significant impact

FRA: Fiscal Responsibility Act of 2023

FWS: U.S. Fish and Wildlife Service

MAP: Mitigation action plan

MBTA: Migratory Bird Treaty Act

NOA: Notice of availability

NOI: Notice of intent

NWR: National wildlife refuge

OHV: Off-highway vehicle

OMB: Office of Management and Budget

ROD: Record of decision

ROW: Right-of-way

SAP: Site assessment plan

TEK: Traditional ecological knowledge¹⁵

WEA: Wind energy area

WTG: Wind turbine generator

On September 14, 2015, DCR Transmission LLC (DCRT) filed a right-of-way application with the BLM, proposing a 114-mile transmission route, including 83 miles on federal land.¹⁸ DCRT’s proposed action route would parallel the existing SCE Devers-Palo Verde 500-kV No.1 (DPV1) transmission line and other linear corridors, including transmission lines and natural gas pipeline rights-of-way. The proposed route would also cross the Kofa NWR.

On September 22, 2016, the project was listed on the FAST-41 dashboard. The permitting council oversaw a coordinated and transparent environmental review and authorization process involving the BLM, the National Park Service (NPS), the U.S. Fish and Wildlife Service (FWS), the Advisory Council on Historic Preservation (ACHP), the CEQ, the U.S. Department of Defense (DOD), the Federal Aviation Administration (FAA), Tribal leadership, project sponsor Lotus Infrastructure Partners, and local communities.¹⁹

Draft environmental impact statement

In August 2018, the BLM published the draft environmental impact statement (DEIS).²⁰ The BLM held three public meetings to discuss the DEIS in Phoenix, Arizona; Quartzsite, Arizona; and Blythe, California. Comments were accepted throughout a 90-day comment period, ending November 29, 2018. A total of 50 comment letters and emails were received from the public. The BLM noted that comments received during the scoping period were used to develop issues to be addressed in the EIS and were also used to refine and/or create alternatives to the proposed action. The issues identified helped the BLM make reasoned choices between the alternatives and ensure impacts were addressed in the EIS. The action alternative routes were formed by combining proposed and alternative segment combinations that linked together logically, while meeting certain objectives of the BLM, cooperating agencies, and stakeholders, as well as addressing public concerns.

Selected alternative

The BLM released the final environmental impact statement (FEIS) in September 2019, noting cooperation among the California Public Utilities Commission (CPUC), the Environmental Protection Agency, the DOD, the Bureau of Reclamation, the U.S. Army Corps of Engineers, the FWS, the Western Area Power Administration, the Arizona Game and Fish Department, Arizona State Land Department, the Maricopa Association of Governments, the town of Quartzsite, and La Paz County.²¹ The BLM also revised the FEIS based on public comments on the DEIS, particularly in response to the use of best management practices and mitigation measures, property values, wildlife, recreation, land use, and need to avoid the Kofa NWR.

On November 21, 2019, The BLM signed the record of decision, approving Alternative 2.²² Alternative 2 was developed to emphasize the use of BLM utility corridors while minimizing impacts to biological, cultural, recreational, and other resources and public uses, including avoidance of the Kofa NWR, as the FWS’ finding of appropriateness of a refuge use would not authorize a project across the NWR. Alternative 2 also avoided areas identified by the BLM for intensive long-term camping, off-highway vehicle use, and other forms of recreation; an area of dense cultural resources near the Mule Mountains in California; and residential and other development near Quartzsite, Arizona, and Blythe, California. The selected alternative also minimized impacts to the Colorado River Indian Tribes Reservation by completely avoiding reservation land and minimized the use of private agricultural land in California. The BLM noted that the selected alternative “will reasonably accomplish the purpose and need for the Federal action, while fulfilling the BLM’s statutory mission and responsibilities, giving consideration to environmental, economic, and technical factors.”²³

In addition to required elements of the project design, BLM-required best management practices, and the project proponent’s performance management procedures, the FEIS noted that additional monitoring and mitigation measures may be necessary to respond to potential environmental impacts. No mitigation would be required by the BLM for: air quality and greenhouse gases; geology, minerals, or soil resources; paleontological resources; land use; special designations, management allocations, or wilderness resources; noise; socioeconomics; environmental justice; and water resources, as the best management practices and management procedures would adequately address these resources. Instead, mitigation measures focused on visual resources, by minimizing disturbance at structure bases, limiting structure height, and not constructing access routes to structure sites; recreation, requiring that construction occur outside of peak off-highway vehicle season; and biological resources, where mitigation measures are determined in coordination with micrositing and final design and could include habitat improvement. A mitigation action plan would also be required if impacts were not addressed through implementation of all best management practices, management procedures, and additional monitoring and mitigation measures.²⁴ Compensatory mitigation was implemented only when required by the existing land use plan or when required by state or federal law, which resulted in compensatory mitigation measures only applying to the California portion of the transmission line.²⁵

On March 23, 2016, the BLM initiated the scoping process with a notice in the Federal Register²⁶ and sent scoping letters and emails to 778 potentially interested members of the public and 219 interested agency and Tribal representatives.²⁷ The agency held three public scoping meetings to inform the public of the proposed project and solicit feedback and comments.

Economic strategies workshop

During the scoping process, the BLM hosted an economic strategies workshop in Quartzsite, Arizona.²⁸ The purpose of the workshop was to identify potential social and economic issues, along with potential opportunities that might enhance or expand the social and economic goals of area communities. Workshop participants included local and regional businesses and government officials, as well as community organizations. The BLM sent invitations to the workshop to government agencies and individuals who expressed interest in the workshop during scoping.

Issues identified

The workshop discussion focused on economic market values, including the project’s impact on property values; recreation expenditures and tourism; commercial revenue, employment, and income; fiscal impacts; and the ability to accommodate future projects with increased capacity. Workshop attendees expressed concerns about the project’s effect on property values due to the loss of scenic quality, the possible closure of recreational trails, and cascading negative economic impacts; after agriculture, tourism is the largest revenue-generating industry in La Paz County. Attendees also noted the need to focus on retaining jobs and hiring locals first for new jobs, potentially with job training initiatives. On the other hand, some participants expressed interest in the benefits of the project, including whether the project would promote development of renewable projects in La Paz County and increase the likelihood that more renewables would become available on the grid.

The discussion of economic nonmarket values focused on the project’s impact to consumer surplus value of recreation, ecosystem services, social values, quality of life, environmental justice, and health and safety. Multiple participants expressed concerns about the visual impact of the project and the consequent effect on tourism. Other participants noted the project’s benefits, including the reinforcement of aging grid infrastructure and avoidance of blackouts or brownouts.

The BLM noted that no significant new issues were raised during the workshop and comment period that had not been previously raised during scoping. However, participants elaborated on and discussed multiple issues in the context of their potential economic impact on affected areas. For example, the workshop helped the BLM better understand how impacts to wildlife could cause potential losses to the tourism economy of La Paz County.

Scoping report

On June 21, 2016, the BLM released the scoping report.²⁹ During the scoping period, the agency received 44 responses—16 percent from nongovernmental organizations, 34 percent from agencies, and 50 percent from individuals.³⁰ The majority—57 percent—of the comments originated in Arizona. Based upon internal, agency, and public scoping, the BLM identified issues associated with the project, addressing both the human and natural environment and summarizing generally stated concerns incorporating multiple scoping comments about the NEPA process and how environmental resources may be affected. The BLM identified these issues to assist in making reasoned choices between alternatives and to address impacts in the EIS.

Perceived lack of transparency

Notably, the BLM identified an issue regarding the NEPA process—specifically, “Information provided to the public to date has been perceived as insufficient or difficult to understand.”³¹ Commenters expressed concern about the lack of information provided to the public or that the information provided was hard to understand. Commenters encouraged the BLM to hold an open, inclusive, and thorough stakeholder process to ensure all stakeholders had their concerns and questions addressed and to incorporate community knowledge, which is built up over time through direct interaction with a resource or environment. Commenters also expressed concern that the project would only benefit the project proponent and not the local public.

Identified utility corridors

Another issue identified during scoping concerned project alternatives. Commenters advocated for the development of alternatives to reduce or avoid impacts to the Kofa NWR, Johnson Canyon, and state lands. Particularly, commenters advocated for alternatives that took advantage of identified utility corridors. Some commenters stated that the project proponent should develop an alternative that considered running the transmission line parallel to the existing DPV1 line to avoid further impacts. Other commenters expressed concerns that based on previous attempts to site a transmission line through the Kofa NWR, the project would be controversial, which would result in delays and a costly permitting process. And as a result, the project would not be compatible with the mission of and purpose of the Kofa NWR.

Adverse economic impacts

Another issue identified during scoping focused on socioeconomic impacts, as commenters noted that the project could improve access to and reduce the cost of environmentally friendly energy sources. On the other hand, commenters noted that the project could adversely affect property rents and values or economic opportunities related to tourism and recreation in the project area. Adverse economic fallouts for local communities would also lead to adverse social impacts and undermine future economic development.

FWS denial of a right-of-way permit

In January of 2017, the FWS released a finding that the proposed project, which would cross the Kofa NWR, “does not meet the criteria for an appropriate use and would interfere with and detract from fulfilling the NWRS mission and purpose of Kofa NWR. As such, the Service has found that the proposed project cannot be authorized and a right of way permit will not be granted for this project on Kofa NWR.”³² The FWS finding thus required that the BLM explore Kofa NWR avoidance alternatives.

Stakeholder support

From January to April 2020, eight stakeholders provided letters of support to the project, including the NRDC, the National Audubon Society, the town of Quartzsite, Tucson Electric Power, Arizona Public Service, Eolus North America, 174 Power Global, National Off-Highway Vehicle Conservation Council, and La Paz County. At the DEIS stage, the NRDC, the Wilderness Society, Defenders of Wildlife, the National Audubon Society, Sonoran Institute, and the Sierra Club urged the BLM not to approve a route through the Kofa NWR due to the reserve’s unique and fragile habitat.³³ These groups supported the BLM’s approval of Alternative 2, as it avoids the Kofa NWR entirely, and applauded the BLM for responding to stakeholder input in the agency’s selection of its preferred alternative; a broad suite of stakeholders had previously submitted comments to the BLM opposing routing the project through the Kofa NWR and urging the BLM to reduce the risk of bird collisions by crossing the Colorado River where it was channelized and following the DPV1 across agricultural lands. La Paz County also noted in comments on the DEIS that the BLM’s preferred alternative avoided impacts to locations and uses established by tourists and La Paz County residents.³⁴ In a letter of support for the project, the town of Quartzite stated that “The Town relies heavily upon winter visitors and the tourism industry for economic development. Therefore, we’re naturally sensitive to any industrial development that potentially impacts those activities. We were initially concerned with a route developed by BLM that would have bisected the Town. However, since that route was removed from consideration, the Town is comfortable with the project.”³⁵

Completion of permitting

Because the project received FAST-41 coverage in 2016, Ten West Link had the benefit of a coordinated and transparent environmental review and authorization process overseen by the permitting council. The BLM worked with the NPS, the FWS, the ACHP, the CEQ, the DOD, the FAA, Tribal leadership, project sponsor Lotus Infrastructure Partners, and the local community to shepherd the project to the final approval stage. By July 13, 2022, all five permitting processes were complete, and construction began in January 2023. This represented a rather quick approval process for a large transmission project; Christine Harada, executive director of the permitting council, stated that the relatively quick approval of Ten West demonstrated “the fruits of the coordination, collaboration, and transparency of the FAST-41 interagency coordination process” and “what is possible when infrastructure projects are covered by FAST-41.”³⁶

The BLM’s chosen alternative reflected resolution of concerns raised by stakeholders during the NEPA process and consideration of trade-offs between the proposed transmission line pathway and impacts on stakeholders. Meaningful stakeholder engagement, supported by the NEPA process, helped achieve an efficient project timeline.

The Ten West Link project demonstrates several examples of meaningful public engagement supported by the NEPA process, including:

• Early and effective engagement with all stakeholders can help avoid delays in the project life cycle. Through the NEPA process, stakeholder concerns were raised at an early stage. Consideration of input from jurisdictional agencies, particularly the FWS, which refused to issue a finding of appropriateness of a refuge use, require the BLM to consider other pathways more tenable for other stakeholders.
• Through a thoughtful examination of trade-offs between the proposed transmission line pathway and impacts on stakeholders, the BLM ultimately selected an alternative project was tenable for the project developer and stakeholders. The selected alternative completely avoids the Kofa NWR and all major population centers, minimizing ecological impacts to the NWR and negative economic impacts to communities. The BLM’s choice of this alternative eliminated most of the opposition to the project.

The construction of the Vineyard Wind offshore wind farm followed an extensive process by BOEM to deconflict competing ocean uses and identify a wind energy area (WEA) appropriate for development.⁴³ BOEM began evaluating potential Outer Continental Shelf wind energy leasing and offshore development in Massachusetts in 2009, through the establishment of an intergovernmental renewable energy task force comprising elected officials from state, local, and Tribal governments, as well as other federal agency representatives.⁴⁴ Through consultation with the task force, BOEM ultimately removed 12 nautical miles of inhabited coastline from further consideration for offshore wind leasing due to potential visual impacts.

In 2012, BOEM released a call for information and nominations (call) to solicit industry interest in acquiring commercial leases for developing wind energy projects in the call area and to seek public input on environmental resources and other uses in the call area.⁴⁵ Based on comments received on the call, BOEM excluded additional areas from the call area, particularly areas of high sea duck concentration and high-value fisheries, in establishing a WEA offshore Massachusetts in May 2012.⁴⁶ The WEA was approximately 40 percent smaller than the preliminary call area. ⁴⁷

In November 2012, BOEM published a notice of availability of an environmental assessment for leasing of the WEA.⁴⁸ After considering comments on the environmental assessment, in May 2013, BOEM published a revised environmental assessment and a finding of no significant impact (FONSI) as to site characterization surveys in the WEA.⁴⁹ In issuing the revised May 2013 environmental assessment, BOEM considered comments on the November 2012 environmental assessment and responded as appropriate. For example, based on comments received on the November 2012 environmental assessment, BOEM added language to the revised environmental assessment to require bird monitoring surveys as a condition of any lease. The agency also included knowledge about all bird species known to forage and rest in or near the WEA, protected under the Migratory Bird Treaty Act (MBTA), because of requests from commenters. BOEM altered the standard operating conditions in the revised environmental assessment to avoid or minimize potential impacts to marine mammals and sea turtles from vessel strikes by imposing more stringent speed limit restrictions. BOEM also supplemented information on underwater noise because of geological and geophysical survey activities and the impacts they may have on marine mammals. Finally, BOEM altered the notification procedures to inform recreational and commercial fishing communities about fishing restrictions during site assessment and site characterization surveys.

In June 2014, BOEM published a proposed sale notice identifying 742,978 acres for offshore wind development in Massachusetts.⁵⁰ The agency published a final sale notice in November 2014 and held a competitive lease sale in January 2015, in which Vineyard Wind won one of the lease areas.⁵¹ In November 2017, Vineyard Wind submitted its site assessment plan to BOEM and its construction and operations plan in December 2017. The construction and operations plan proposed development of an offshore wind energy project with capacity of approximately 800 MW in the northern portion of the lease area.

In March 2018, BOEM published a notice of intent to prepare an EIS.⁵² BOEM consequently held five public scoping meetings in Massachusetts and Rhode Island.⁵³ During the public comment period for the DEIS, released in December 2018, BOEM held five public hearings, also in Massachusetts and Rhode Island, and received 341 unique submittals from the public, agencies, other interested groups, and stakeholders. The topics most referenced during the DEIS comment period included concerns about impacts to commercial fisheries and for-hire recreational fishing, finfish, invertebrates, and essential fish habitat.

In response to comments, BOEM published a notice of availability for a supplement to the DEIS,⁵⁴ analyzing reasonably foreseeable effects from an expanded cumulative activities scenario for offshore wind development, previously unavailable fishing data, a new transit lane alternative, and changes to the construction and operations plan since the DEIS. During the public comment period for the supplement to the DEIS and the five public meetings, BOEM received roughly 3,500 unique submittals from the public, agencies, and other interested groups and stakeholders, mostly focused on impacts to commercial fisheries and for-hire recreational fishing. The dramatic increase in comments from the DEIS to the supplemental DEIS demonstrates the growing interest in and contention surrounding offshore wind projects, particularly from the fishing community.

Selected alternative

After consideration of comments in the DEIS and supplement, and considering the alternatives in the FEIS, BOEM decided to approve the construction and operations plan using a combination of alternatives that slightly reduced the project size, selected a specific layout, and prohibited surface occupancy in the northern-most portion of the project area.⁵⁵ These trade-offs resulted in reduced visual impacts from shore and lowered impacts on vessel traffic due to more unobstructed space, but they still granted the project the ability to meet an 800-MW capacity. Under the selected alternative, only 84 wind turbine generators (WTGs) could be installed in 100 of the 106 locations proposed by Vineyard Wind, and WTGs were prohibited from being installed in six locations in the northern-most portion of the project area. BOEM required that the turbine layout orient east-west with all WTGs in the north-south, east-west direction with a minimum spacing between them of 1 nautical mile, consistent with U.S. Coast Guard (USCG) recommendations.

BOEM selected this alternative based on the input of stakeholders, the needs of the project, and impacts to recreation and tourism. Because fewer WTGs would be within view of the shore, and more unobstructed space in the northern portion of the lease area would cause fewer impacts on navigation and vessel traffic, there would be fewer impacts on recreation and tourism than under the proposed action. But removal of the six turbine locations in the northern portion of the lease area would still allow the project to meet an 800-MW capacity.⁵⁶

Further, the chosen array for WTGs received strong public support. Vessel activity data demonstrated that fishing activity generally crosses the area east-west, and most transit activity crosses northwest-southeast. The USCG suggested maintaining the ability and option for mariners to transit on a single or near-single course through the length of the WEA, allowing vessel operators to set predictable courses. The selected layout was supported by most public comments on the supplement to the DEIS, including support from the USCG, the states of Massachusetts and Rhode Island, the Massachusetts Audubon Society, and the National Wildlife Federation. BOEM received almost 30,000 form letters in support of the project, with approximately one-third of them supporting the selected layout, demonstrating the impact that sophisticated groups can have through organized letter writing campaigns.⁵⁷

BOEM found that the selected alternative would also reduce impacts for almost half of the environmental resources analyzed: air quality; water quality; benthic resources; marine mammals; sea turtles; cultural, historical, and archaeological resources; recreation and tourism; commercial fisheries and for-hire recreational fishing; and navigation and vessel traffic.

BOEM’s chosen alternative reflected real considerations of the trade-offs identified in the NEPA process between development of the lease area and the concerns of stakeholders and ocean users. Ultimately, in a compromise between concerns over habitat, transit, and economic feasibility, BOEM chose an alternative that reduced project size to address habitat concerns and selected a specific layout to resolve transit concerns, yet still supported sufficient development of the lease area to meet energy needs and economic feasibility. The chosen alternative also reflected the outcome of significant public engagement and consultation in advance of the lease sale, which worked to deconflict areas in advance of the lease sale.

Community benefits agreement

Vineyard Power Cooperative is a nonprofit based in Martha’s Vineyard that aims keep the benefits and control of local renewable energy resources within the island community.⁵⁸ The nonprofit was formed after witnessing the controversy surrounding the Cape Wind offshore wind project that was ultimately never constructed. Vineyard Wind collaborated with Vineyard Power Cooperative to submit a joint response to the 2012 call soliciting interest in commercial wind leasing offshore Massachusetts and Rhode Island. This partnership continued, and in 2015, Vineyard Wind and Vineyard Power Cooperative signed the nation’s first, federally recognized offshore wind CBA,⁵⁹ supporting local job creation and the construction of an offshore wind operations and maintenance facility in Vineyard Haven Harbor.

The CBA established obligations for both parties. Vineyard Wind and Vineyard Power Cooperative agreed to explore how jobs could be created locally from offshore wind development and how Vineyard Power Cooperative could finance, purchase, own, or take equity in up to 100 MW of offshore wind capacity. Both parties agreed to work together to secure power purchase agreements that would enable the development of offshore wind off the coast of Martha’s Vineyard while providing energy to the local community. The CBA requires Vineyard Wind to consult regularly with Vineyard Power Cooperative to receive input from community members throughout the planning and development process and to continually adapt the project to maximize local community benefits. Vineyard Wind provides financial support to Vineyard Power Cooperative’s operations, and Vineyard Power Cooperative agreed to advocate for and support offshore wind at the Massachusetts Legislature through education and outreach campaigns. The CBA further enabled Vineyard Wind to receive a 10 percent credit factor in the auction 2015 auction that led to Vineyard Wind winning the lease.⁶⁰

Although outside the NEPA process, engagement by the project developer with stakeholders potentially reduced delay in the project. Concerns from the local community were addressed, and the affected community was able to negotiate real direct and indirect benefits.

Other stakeholder support 

The National Audubon Society initially opposed the project and sought the inclusion of measures that would estimate impacts to marine birds and migratory birds protected by the MBTA and the Endangered Species Act, prioritizing the endangered roseate tern, red knot, and piping plover. ⁶¹ Audubon had also requested best management practices and other measures to avoid and minimize impacts to these birds, as well as the development and implementation of new technologies to monitor the presence of birds in the project site and their interactions with turbines before and during construction and during operation.

BOEM responded to Audubon by requiring that Vineyard Wind develop a monitoring program that includes pre- and post-construction avian surveys; install radio telemetry receivers within the project area; deploy radio transmitter backpacks to species of concern that may interact with the Vineyard Wind 1 project; and use additional monitoring technologies as they become available. BOEM further acknowledged that the results of the monitoring program should be publicly available and used within an adaptive management strategy in which additional mitigation measures are applied if observed impacts to birds are greater than anticipated. Finding this satisfactory, the National Audubon Society released a letter of support for the Vineyard Wind project, noting that “the project has taken care to reduce impact to migratory birds” and that “responsibly sited and reviewed clean energy projects like Vineyard Wind are critical” to the survival of billions of migratory birds.⁶² Additionally, Audubon found that the project was well located to avoid the most important offshore habitats for marine birds, based on the best available science.

Stakeholder opposition

It is unreasonable to expect early and meaningful stakeholder outreach to resolve all conflicts. Infrastructure projects require trade-offs, and some opposition is inevitable. Despite considerable outreach by BOEM and incorporating feedback to evaluate trade-offs, and ultimately to approve a smaller project with a more limited footprint, several groups are still determinedly opposed to the project. Four cases have challenged BOEM’s decision to approve the Vineyard Wind facility: two from landowners⁶³ and two from fishing groups.⁶⁴ The fishing group challenges argue that the government inadequately failed to consider Vineyard Wind’s impact on fishermen and the endangered North Atlantic right whale and that BOEM completed an inadequate cumulative impacts analysis. In its filings, BOEM noted that it conducted a cumulative impact analysis; removed six turbine locations from Vineyard Wind’s initial plans in order to accommodate fishing traffic; and imposed requirements designed to protect the right whale, such as seasonal restrictions around pile driving and a halt to construction if the animal is spotted in the project’s vicinity. The challenges from landowners also allege that BOEM inadequately considered impacts on North Atlantic right whales and that the agency should have performed a cumulative review of the projects proposed along the East Coast before awarding permits to individual developments. In both landowner challenges, the court denied the landowners’ motions and granted BOEM’s and Vineyard Wind’s motions for summary judgment. The Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management plaintiffs have appealed to the U.S. Court of Appeals for the 1st Circuit.⁶⁵ In Seafreeze Shoreside Inc. v. U.S. Department of the Interior, the court also denied the plaintiffs’ motion for summary judgment, and the plaintiffs have likewise appealed to the 1st Circuit.⁶⁶ The District Court’s decision reflects judicial deference to agency scientific judgments, indicating that courts reviewing Administrative Procedure Act claims related to offshore wind projects can look past sensationalized, though sympathetic, claims related to impacts on marine mammals and instead focus on whether agency action is rationally supported by the administrative record.

The Vineyard Wind offshore wind project demonstrates several examples of meaningful public engagement supported by the NEPA process, including:

• BOEM’s early and effective engagement with all stakeholders deconflicted many stakeholder concerns in advance of the development of the lease area. This deconfliction process reduced the potential for later conflict and delay.
• Through a thoughtful examination of trade-offs, BOEM was able to select an alternative that was tenable for the project developer and stakeholders. Although the developer cannot install as many turbines in as many locations as initially planned, the project will still produce the promised 800 MW of electricity. Despite BOEM’s consideration of real trade-offs, there is still determined opposition from some groups, although these groups in all likelihood would remain opposed no matter the level of outreach, engagement, and consideration of trade-offs by BOEM.
• The developer’s use of a CBA helped manage risks and the local community’s concerns by tying the project developer and the project’s success to real commitments. The CBA also worked to the benefit of the project developer, as the developer could count on the local community for support and advocacy, reducing the risk of the project. Finally, the CBA committed to creating well-paying union jobs in the affected community.
• The project attracted the attention of many sophisticated groups at the comment stage, and, later in litigation, these groups were able to organize and rally their members in support and opposition to the project. Although these entities may be well resourced, their efforts demonstrate the kind of outcomes that underserved communities can achieve with effective advocacy and use of environmental collaboration and conflict resolution processes.

SunZia first submitted a right-of-way application for a transmission line in September 2008.⁶⁸ A DEIS was published in May 2012, the FEIS in June 2013, and the record of decision issued in January 2015.⁶⁹ The project became a priority of the Obama administration, as it would provide new electricity transmission facilities to carry renewable energy, enhance energy security, and support the administration’s Climate Action Plan.

The 2015 record of decision

Following the 2013 FEIS, the DOD objected to the construction and operation of the proposed overhead transmission lines in the WSMR Northern Call-Up Area (NCUA), as the military expressed concern that the transmission lines would obstruct military flight tests and that military drones would damage transmission lines.⁷⁰ After discussions between DOD, the U.S Department of the Interior, and the BLM, the DOD proposed mitigation measures to minimize impacts to military readiness and operations at the WSMR. As a result, the 2015 record of decision contained additional mitigation measures from the 2013 FEIS to mitigate the project’s potential impact to national security. These mitigation measures included: burying a portion of the power lines; including a hold-harmless clause in the right-of-way grant; implementing procedures to allow for unimpeded testing to occur during construction and maintenance of the power lines; and creating procedures for micrositing the power lines to minimize WSMR operational impact.

DOD conflicts remained unresolved

The additional mitigation measures, however, did not fully allay the DOD’s concerns, and the deal unraveled after the presidential transition. From 2017 to 2019, SunZia and the DOD engaged in numerous discussions regarding current and future WSMR test protocols that may be affected by the location of the NCUA segment of the SunZia project on the 2015 selected route, as well as about potential alternative routes that could reduce or eliminate such impacts.⁷¹ The DOD noted that since issuance of the record of decision in 2015, the WSMR’s testing activities had escalated for testing new weapons and countermeasures. Then-Assistant Secretary of Defense for Sustainment Robert McMahon issued a letter to SunZia in December 2018 reiterating the DOD’s concerns with the segment of the 2015 selected route.⁷² McMahon repeated that national security interests and WSMR operations would be better served by SunZia pursuing potential alternative routes that would relocate the project’s proposed transmission line and associated facilities away from the WSMR NCUA.

Additional conflicts

The 2015 selected route also cut across the Rio Grande near Socorro, New Mexico, a ranching and farming community that relies heavily on tourism, particularly from wildlife enthusiasts. Ranchers and chili farmers expressed concern that the route would decrease land values, and conservationists expressed concern about the project’s impact on migratory birds and tourism.⁷³ Although SunZia had negotiated to provide compensation payments to multiple ranchers, other engaged parties felt their concerns were not addressed. The group mobilized politically and urged the New Mexico Public Regulation Commission to reject SunZia’s application. Their efforts were successful, and the commission rejected SunZia’s application in September 2018, effectively killing the 2015 selected route.⁷⁴

Amended right-of-way application

In response to the commission’s rejection, SunZia performed a siting study in 2019 to develop and evaluate alternative routes.⁷⁵ Alternative routes would allow partial location within an existing utility corridor; minimize potential conflicts with transmission facilities and DOD training and testing missions; address concerns related to obtaining private property rights-of-way; and avoiding areas that would require building the transmission line underground, given SunZia’s concerns about the technical and economic feasibility of undergrounding. Alternatives that co-located with existing utility easements across the Sevilleta NWR would address the BLM’s basis for eliminating certain options from detailed analysis in the 2013 FEIS. In addition, based on the recent development of proposed wind-generation facilities, relocating the planned 40-acre SunZia east substation to the north, near Corona in Torrance County, would optimize the potential interconnection of future renewable resources and allow an opportunity to co-locate a segment of the line with the Western Spirit Wind project transmission line by paralleling that project where feasible. During internal and external scoping, additional local alternatives were identified to avoid land management conflicts.

On March 27, 2020, SunZia submitted an application to amend the existing right-of-way.⁷⁶ The new route would cross the Rio Grande at a different spot, farther from Socorro, and was identified by reviewing GPS data from migratory birds in order to minimize impacts to species of concern.⁷⁷ The new route would also avoid the WSMR NCUA. The proposed amendments, consistent with the original right-of-way grant, would still include up to two 500-kV transmission lines located on federal, state, and private lands between Torrance County, New Mexico, and Pinal County, Arizona. In its review, the BLM developed several local alternatives to avoid existing landowner conflicts and constraints that had developed along the route modifications since the 2015 selected route was identified.

Selected alternative

The BLM’s selected alternative avoids existing landowner conflicts and constraints that have developed along the six localized route modifications since the 2015 selected route was identified; accommodates the necessary and additional right-of-way for SunZia to access, construct, and operate the project; avoids impacts to the Ladron Mountain-Devil’s Backbone complex area of critical environmental concern; avoids impacts to military operations associated with the WSMR; parallels existing infrastructure and transmission lines outside the Sevilleta NWR; and co-locates with a transmission line within and north of the Sevilleta NWR, across the Rio Grande, and through other locations.⁷⁸ The BLM selected the alternative in part because it completely addressed the national security concerns associated with the WSMR NCUA and also reduced costs associated with undergrounding transmission infrastructure.

In the 2013 FEIS, the BLM eliminated from detailed analysis several alternatives crossing through the Sevilleta NWR, on the basis that such alternatives would conflict with the refuge management policy and with restrictions that prohibit commercial uses, as stated in the Sevilleta NWR land grant deed. The Sevilleta NWR comprehensive conservation plan (CCP) provides management tools and priorities for the 230,000-acre NWR. The purpose of the refuge is guided by the 1972 warranty deed between The Nature Conservancy and the FWS, which states the purpose is “to preserve and enhance the integrity and the natural character of the ecosystems of the property by creating a wildlife refuge managed as nearly as possible in its natural state, employing only those management tools and techniques that are consistent with the maintenance of natural ecological processes.”⁷⁹ The warranty deed and the CCP further state that the priority shall not be subject to commercial exploitation and shall not be leased or used for any commercial purpose other than where deemed appropriate by the FWS and The Nature Conservancy for sound wildlife management. In the 2013 FEIS, co-location with the existing utility lines across the NWR was not considered. El Paso Electric has a 345-kV transmission line in a 100-foot-wide easement, and Tri-State Generation and Transmission Association Inc. has a 115-kV transmission line in a 50-foot-wide easement. Due to existing easement widths, only one new SunZia transmission line could be routed within each easement, requiring modification and replacement of each transmission line. Tri-State and El Paso Electric would need to request use of refuge lands outside existing easement footprints for temporary uses and long-term maintenance. As proposed and analyzed in the FEIS, and as authorized in the record of decision, co-location with existing utility lines within existing easements allowed the FWS and the BLM to reconsider the alternative routes across the Sevilleta NWR, although modification and replacement of each transmission line would be required.⁸⁰

The FWS issued its compatibility determination in August 2023, and construction of the SunZia transmission line began on September 1, 2023.⁸¹ The BLM’s chosen alternative, reconsidered after a more robust alternatives analysis and public engagement process to involve all stakeholders, ultimately avoided most identified conflicts, including national security concerns associated with the WSMR NCUA.

Community benefits agreement

SunZia and Socorro County, New Mexico, entered a CBA in May 2020 to benefit the residents of the county.⁸² Under the CBA, SunZia promised to contribute approximately $1.8 million to the county to support health, safety, and welfare projects, with an additional $50,000 to support youth scholarships. SunZia also promised to prepare an annual report detailing the general status of permitting, development, construction, operations, and the anticipated timeline for payments. The county promised to be transparent and provide reports on how money is spent.

Additional environmental mitigation

With the revised right-of-way, SunZia also committed to additional environmental mitigation measures, beyond the standard and selective mitigation measures identified in the NEPA process, and the compensatory mitigation required as a condition of the right-of-way grant.⁸³ The additional measures were developed with environmental stakeholders to serve as a model for environmental mitigation. The measures focus on the acquisition and protection of habitat, research and monitoring, impact minimization, and conservation project funding. Benefits to migratory birds and their habitat are prioritized and exceed the project’s minimum mitigation obligations. Examples of measures include:

• Acquisition of property and transfer to local government and conservation organizations, with the ultimate purpose of transferring ownership to the FWS for incorporation into the Sevilleta NWR to be managed as habitat for wildlife, and particularly migratory birds such as sandhill cranes
• Funding for research regarding the Avian Collision Avoidance System (ACAS), along with a promise to deploy the ACAS at the crossing of the Rio Grande and continue to contribute to research regarding collision risk
• Expanded bird flight diverter deployment on power lines to avoid or minimize avian exposure to collisions
• Other measures, with an unclear nexus to impacts from the project, including funding for soil and water erosion research studies in southeast Arizona; buffelgrass eradication; prairie dog research; and wildlife water catchments

After modification of the route and incorporation of the additional mitigation measures, Audubon Southwest, a regional office of National Audubon Society in New Mexico and Arizona, supported the project.⁸⁴

Engagement with stakeholders both within and outside the NEPA process ultimately reduced further project development delay—as concerns were addressed and stakeholders obtained satisfactory mitigation, solidifying their support for the project and reducing potential conflict.

The SunZia transmission project, although initially unsuccessful, provides examples of meaningful public engagement supported by the NEPA process, including:

• Effective engagement with stakeholders can help—or, in this instance, could have helped—avoid delays in the project life cycle. Although concerns were raised regarding the original project’s effect on national security and activities at the WSMR NCUA, and the impact on the local community, these concerns were not addressed until the state commission rejected the developer’s application, forcing a reexamination of the proposed pathway.
• Every project has trade-offs that must be examined and thoughtfully managed. CBAs can help manage trade-offs and work to benefit affected communities and project developers. Here, the developer’s engagement with the surrounding county resulted in a CBA, with approximately $1.8 million provided in funds to the county to support health, safety, and welfare projects.
• Stakeholder engagement resulted in additional environmental benefits beyond those required. With the revised right-of-way, SunZia committed to ecological mitigation measures, beyond the standard and selective mitigation measures identified in the NEPA process, and the compensatory mitigation required as a condition of the right-of-way grant. The BLM and SunZia developed the additional measures with environmental stakeholders to serve as a model for environmental mitigation.
• Community outreach must also include outreach to jurisdictional agencies—here, the DOD and state commission. Broadening the definition of “community” is valuable for NEPA coordination but also for identifying and addressing objections. Here, national security concerns and state transmission line siting interests could be addressed after all stakeholders were effectively engaged, allowing the project to consider trade-offs more carefully and proceed along a more mutually beneficial path.

In 2008, BrightSource Energy applied to develop a solar thermal renewable energy power generation facility of up to 1,200 MW on approximately 12,000 acres of a 44,000-acre application area.⁸⁷ The right-of-way application was never completed. In April 2017, Solar Partners XI acquired the project from BrightSource and submitted an amended right-of-way application in July 2017. The project was listed on the FAST-41 dashboard in July 2018. Fewer than two years later, within weeks of the original schedule, the BLM signed the record of decision for the project. The project developers have celebrated the FAST-41 process as essential to the permitting process’s transparency, accountability, coordination, and efficient navigation.

Solar programmatic environmental impact statement

The 2012 solar programmatic environmental impact statement (PEIS)⁸⁸ does not apply to the Gemini Solar Project because the 2008 right-of-way application preceded the PEIS, and the 2017 amended right-of-way application is not considered a new application.⁸⁹ As such, the BLM needed to prepare an EIS for the Gemini Solar Project but could rely on useful information within the solar PEIS, particularly as the Gemini Solar Project is close to the Dry Lake Solar Energy Zone, one of the solar energy zones defined in the 2012 PEIS.⁹⁰

Pre-application coordination

In 2011, the BLM issued guidance encouraging pre-application meetings for renewable energy projects.⁹¹ The BLM worked closely with project developer Solar Partners XI during the pre-application phase to identify appropriate locations and configurations for the project. Guidelines from the solar PEIS were used to identify optimal sites; the BLM discouraged Solar Partners XI from including locations with significant environmental concerns in the application, including areas of critical habitat, areas of critical environmental concern, desert wildlife management areas, designated off-highway vehicle areas, wilderness study areas, and designated wilderness areas.⁹² Through the pre-application phase, working with the project developer to identify project locations, the BLM deconflicted many potential stakeholder concerns in advance.

Scoping report

In July 2018, the BLM published the notice of intent to prepare an EIS for the Gemini Solar Project, initiating a 45-day public scoping period for the EIS.⁹³ During the scoping period, stakeholders raised concerns over impacts to the viewshed; cumulative impacts from numerous solar projects in the area; and the closure of trails for hikers, mountain bikers, and off-highway vehicle users. Multiple individuals and entities raised concerns over impacts to three-corner milkvetch and desert tortoise populations and habitat.

Alternatives development

Siting alternatives and alternative configurations

Although the project was proposed on roughly 12,000 acres of land within the 44,000-acre right-of-way application area, the remaining 32,000 acres of land not proposed for development were analyzed as siting alternatives within the application area for the project.⁹⁴ Approximately 3,881 acres of the application area were immediately ruled out due to a slope of greater than 5 percent, which could not support PV installation. Large areas of the remaining application area were not considered due to proximity to slopes greater than 5 percent, which would disallow a contiguous area large enough to support a solar layout. Of the remaining acres, two relatively flat areas located on the northeast side of the application area were reviewed. Both sites were in close to the Valley of Fire Road, providing suitable access. However, both sites were located adjacent to the eastern boundary of the application area, which abuts the Muddy Mountains. Proximity to the Muddy Mountains increased the scenic quality of these two sites and would make them more visible to recreationalists in the mountains. Development on these two sites would increase the visual impacts from the project, and these sites were eliminated from further review.

The southern portion of the application area, located on a large swath of relatively flat land, was also reviewed for suitability. This area is located farther from both I-15 and the Valley of Fire Road than the proposed development, which would complicate access and would locate the solar facility farther from existing transmission lines, requiring construction of longer gen-tie lines. For these reasons, this alternative site was eliminated from further consideration.

The BLM limited the development area to the proposed 10,670-acre study area within the application area. Within the study area, various alternative configurations were developed that met the basic purpose and need of the project and were economically feasible, with considerations for site constraints such as biological resources, visual resources, recreation, and utilities. Alternative configurations that were at least 7,100 acres were carried forward as alternatives.

Technology alternatives

BrightSource’s original 2008 application proposed development of a solar thermal generation facility. The amended 2017 application proposed 690 MW of solar PV panels. In considering technology alternatives, the BLM rejected the solar thermal power option because the economics of solar thermal were no longer cost-competitive to solar PV, and it would therefore not meet the applicant’s objectives.⁹⁵ Additionally, a solar thermal project would have similar or considerably more significant environmental impacts on biological resources, including on desert tortoises and birds; water consumption, as mirrors require washing; and visual effects associated with glare from the mirrors and the high visibility of the 450-foot power towers required for solar thermal generation.

Selected alternative

After consideration of comments and a review of impacts, the BLM selected the hybrid alternative identified in the FEIS, which incorporated mowing for roughly 65 percent of the development area and traditional development methods for the remaining 35 percent.⁹⁶ Several proposed development areas would not be developed, and other development areas were reduced in size due to the presence of cultural resources and three-corner milkvetch. Selection of the hybrid alternative greatly reduced the project’s impacts as compared with the proposed action, but the minimum acreage required to generate 690 MW of power with battery storage would still be developed. The BLM found that, when compared with the proposed action, the hybrid alternative mowing method would result in fewer impacts on native vegetation, potentially reduce effects to desert tortoise, reduce effects to soils that contain seed banks for special-status plant species, and reduce impacts related to the spread of invasive weeds. The chosen alternative also allows desert tortoise the opportunity to potentially reoccupy approximately 65 percent of the development areas after construction, employing a new and unproven method of mowing and tortoise reoccupation. Given the novelty of the method, the BLM also required extensive long-term monitoring to better understand the results of the method and adapt as needed to reduce potential effects to desert tortoise. In the record of decision, the BLM noted that the long-term monitoring “will provide opportunities to implement adaptive management to address any observed unanticipated effects.”⁹⁷ The USGS Southwest Biological Science Center will also conduct vegetation monitoring to document changes in vegetation that occur on the Gemini Solar Project site before and after construction and site maintenance; this includes vegetation being mowed and/or crushed under and between solar panels and occasionally trimmed to prevent shading of solar panels. Impacts to native plant species will also be documented, including the endangered three-corner milkvetch plant and the abundance of invasive nonnative plant species. Monitoring will document changes to the physical condition of the site, including soil erosion, dust emission, temperature, and soil moisture.

The BLM’s chosen alternative reflected consideration of the trade-offs identified in the NEPA process related to the area’s development and the stakeholders’ concerns. Ultimately, in a compromise between concerns over habitat for desert tortoises and three-corner milkvetch, viewshed impacts, cultural resources, and economic feasibility, the BLM selected an alternative that reduced the proposed project size to mitigate effects and required extensive monitoring to identify and resolve unanticipated consequences, yet still supported sufficient development of the lease area to meet energy needs.

In response to the DEIS published in December 2019, the Moapa Band of Paiute Indians submitted comments opposing the project, given the potential impacts on desert tortoise.⁹⁸ The Tribe was particularly concerned that if proposed mowing methods to reduce impacts on desert tortoise were unsuccessful, desert tortoise located within the Paiute Reservation bordering the project would become more critical for the preservation and recovery of the species, limiting the ability of the Paiute to engage in future development on the reservation. As a result, the Gemini Solar Project agreed to relocate threatened desert tortoises before construction and reintroduce tortoise to the site after construction. Vegetation monitoring conducted by the USGS as a condition of record-of-decision approval will also inform habitat suitability upon reintroduction.

The Moapa Band of Paiute Indians has unique experience with solar development within the region’s ecology, including the first large-scale solar project built on Tribal trust land. As a result of meaningful engagement with the Moapa Band of Paiute Indians, the Tribe provided water, critical access to the project, and expertise in ongoing construction and infrastructure improvements. This partnership demonstrates how the NEPA process drew out traditional ecological knowledge and the special expertise of the Paiute Indians, benefiting the Tribe, the developer, and other stakeholders. The Tribe is now a project partner.⁹⁹

The Gemini Solar Project demonstrates several examples of meaningful public engagement supported by the NEPA process, including:

• Early and effective engagement can avoid delays in the project life cycle by deconflicting stakeholder concerns before project development. In pre-application meetings, the BLM discouraged the developer from including in its application alternative BLM land locations with significant environmental concerns. Extensive location and technology deconfliction occurred prior to the submission of the amended right-of-way application, which allowed for a more efficient permitting process, as the most contentious pathways had been removed from consideration.
• Through a thoughtful analysis of impacts and concessions on all sides, the BLM selected an alternative that was tenable for the project developer and stakeholders. By engaging with an examination of trade-offs between proposed solar development and impacts on stakeholders, many concerns were addressed in a manner that benefited the developer and the community. Several proposed development areas were off-limits for development, and other development areas were reduced in size due to the presence of cultural resources and endangered vegetation such as the three-corner milkvetch plant, greatly reducing the project’s impacts as compared with the proposed action. But the minimum acreage needed to generate 690 MW of power plus battery storage would still be developed.
• The NEPA process drew out traditional ecological knowledge through engagement of the Moapa Band of Paiute Indians, who later served as a partner on the project. The developer’s partnership with the Tribe resulted in a project that better managed trade-offs, mitigated project impacts, and worked to the benefit of the affected community and the project developer.

The initiation of construction for South Fork Wind followed a 12-year process that deconflicted competing ocean uses and thoughtfully considered the effects of developing a wind energy area and the developer’s detailed plans for construction and operations of the offshore wind farm. The process was initiated in July 2010, when the governors of Rhode Island and Massachusetts identified an “Area of Mutual Interest” off their coastlines for BOEM to consider for offshore wind leasing.¹⁰⁰ In August 2011, BOEM published a call to solicit industry interest in acquiring commercial leases for developing wind energy projects in the call area and to seek public input on environmental resources and other potentially competing uses in the area.¹⁰¹ In response to comments received on the call, BOEM excluded several areas, particularly common fishing areas on Coxes Ledge, in establishing a WEA within the call area offshore New York and Rhode Island in February 2012.¹⁰²

In July 2012, BOEM published a notice of availability of an environmental assessment for offshore wind leasing.¹⁰³ After considering comments on the assessment, BOEM published a notice of availability for a revised environmental assessment and a FONSI for site characterization surveys in the WEA.¹⁰⁴ In December 2012, BOEM published a proposed sale notice, identifying 164,750 acres for offshore wind development, and published a final sale notice in June 2013, which resulted in the country’s first competitive lease sale for offshore wind held in July 2013.¹⁰⁵ Deepwater Wind New England—later, renamed South Fork Wind—won the lease area in the auction. In April 2016, Deepwater Wind filed its site assessment plan and received BOEM’s approval in October 2017.¹⁰⁶

In June 2018, South Fork Wind submitted a construction and operations plan to BOEM for the project. The plan proposed development of an offshore wind energy project with up to 15 wind turbine generators, submarine cables between the WTGs, an offshore substation, and an export cable to the South Fork of Long Island. The area of the proposed project comprised 13,700 acres of the WEA.¹⁰⁷

In October 2018, BOEM published a notice of intent to prepare an EIS. BOEM consequently held three public scoping meetings for the EIS in Massachusetts, New York, and Rhode Island. During the public comment period for the DEIS, released in January 2021, BOEM held three virtual public hearings and received 388 unique submittals from the public, agencies, other interested groups, and stakeholders. During the DEIS comment period, the most repeated concerns were about impacts to commercial fisheries and for-hire recreational fishing; finfish; invertebrates; and essential fish habitat.

Selected alternative

After consideration of comments on the DEIS, and considering the alternatives in the FEIS, BOEM approved the construction and operations plan, selecting the habitat alternative to minimize impacts to fisheries habitats and requiring South Fork Wind to exclude certain proposed WTGs and associated cable locations.¹⁰⁸ Under the selected alternative, only 12 of the 15 proposed WTGs will be installed. The turbine layout must be arranged in a uniform east-west and north-south grid, with 1×1 nautical mile spacing between WTGs,¹⁰⁹ and diagonal transit lanes of at least 0.6 nautical miles wide, consistent with the USCG’s recommendations in the Areas Offshore of Massachusetts and Rhode Island Port Access Route Study (MARIPARS). Additionally, WTGs in these locations must be microsited to minimize, to the extent practicable, impacts to complex habitat.

BOEM selected the habitat alternative because of the stakeholders’ input balancing their concerns with the needs of the project. In particular, BOEM rejected the transit alternative because it would preclude turbine placement in the six southern-most turbine locations and thereby reduce the economic feasibility of the project. Further, the range of direct impacts to all resources from the transit alternative would remain substantially like those of the proposed action, but due to occlusion of several turbine locations, the transit alternative would unnecessarily reduce the energy production potential of the lease. While the establishment of a transit lane would facilitate travel for vessels along the southern portion of the lease area, the final MARIPARS report stated that WTGs with 1-nautical-mile spacing and north-south/east-west orientation will:

• Facilitate traditional fishing methods, via east-west travel, in the project area
• Provide for typical transit routes through the combined lease areas, via northwest-southeast travel
• Avoid the need for formal or informal vessel routing measures because the uniform grid pattern would result in numerous navigation corridors that could safely accommodate both transit and fishing
• Provide the USCG with adequate search and rescue access

BOEM, therefore, found that choosing the transit alternative was not necessary to mitigate potential impacts on navigation in the lease area. Further, all developers in the Massachusetts and Rhode Island lease areas had agreed to a 1×1-nautical-mile uniform grid layout,¹¹⁰ and the addition of a transit lane to the South Fork Wind layout could increase navigational complexity. Choosing the transit alternative—thereby further reducing the area available for wind development—would render the project technically and economically infeasible or result in increased environmental impacts to complex habitats. Reducing the number of turbine locations to fewer than 12 to avoid complex habitats would result in the project being unable to meet the power purchase agreement of 130 MW. Thus, the transit alternative introduced significant economic and technical difficulties compared with the habitat alternative.

BOEM’s chosen alternative reflects consideration of the trade-offs identified in the NEPA process between the development of the lease area and the concerns of stakeholders and ocean users. Ultimately, in a compromise between concerns over habitat, transit, and economic feasibility, BOEM chose an alternative that reduced the project size to address habitat concerns, selected a specific layout to resolve transit concerns, and supported sufficient lease area development to meet energy needs.

Community benefits agreement

South Fork Wind’s export cable lands onshore in East Hampton and runs for 4 miles under town roads and trustee-owned land to a Long Island Power Authority substation. An active East Hampton homeowners and town preservation group strongly opposed the cable route. In 2021, South Fork Wind signed a host CBA with the town of East Hampton, New York, and the Trustees of the Freeholders and Commonalty of the Town of East Hampton.¹¹¹ As a result of the agreement, South Fork Wind will pay the town $700,000 annually for 25 years, including a 2 percent increase each year after the first year. The total comes to $28.9 million, including $100,000 in geotechnical access and license fees already paid to the town. South Fork Wind will also pay the property taxes on its onshore infrastructure, which is estimated to bring in an additional $4 million over the project’s life.¹¹² The funds will be made available to East Hampton through annual payments from South Fork Wind over the life of the project, starting six months after the commercial operation date. The leadership of the town and trustee boards will guide the use of the funds.

Ultimately, the town and trustees successfully negotiated nearly $29 million in payments and value to the community. Although the East Hampton township is a relatively well-resourced community, this CBA provides a blueprint for the kind of mitigation that underserved communities can obtain with effective advocacy and environmental collaboration and conflict resolution processes.

Within the CBA, South Fork Wind additionally committed to hire locally, employing a fisheries liaison for East Hampton and requiring their turbine maintenance contractor to establish its place of business in East Hampton. In exchange for South Fork Wind’s concessions, the town and trustees of East Hampton agreed not to oppose the project and grant a conditional easement for the cable within boundaries of town-owned roads and the beach.

This engagement by the project developer with stakeholders potentially reduced delay in development of the project, as concerns were addressed, and the affected community was able to negotiate real direct and indirect benefits. Meaningful stakeholder engagement prevented unnecessary conflict and delay, managed potential conflict, and increased support for the project. While this occurred outside the NEPA process, it demonstrates the importance of stakeholder engagement for timely project delivery.

Stakeholder opposition

It is unreasonable to expect early and meaningful stakeholder outreach to resolve all conflicts. Infrastructure projects require trade-offs, and some opposition is inevitable. Despite considerable outreach by BOEM and the project sponsor, and incorporating feedback to evaluate trade-offs and ultimately approve a smaller project with a more limited footprint, the project still faces litigation.—although the cases have been dismissed.¹¹³ One case, brought by homeowners in East Hampton, alleged that BOEM violated NEPA by failing to consider the spread of per- and polyfluoroalkyl substances (PFAS) from the transmission line’s potential disturbance of PFAS substances in soil, as well as the impact of PFAS disturbance on private and public well water. However, the court denied a preliminary injunction sought by the homeowners and granted BOEM’s motion to dismiss.¹¹⁴ The other challenge was briefly consolidated with one of the challenges to Vineyard Wind and alleged that BOEM inadequately considered impacts on the North Atlantic right whale and that BOEM should have performed a cumulative review of the projects proposed along the East Coast before awarding permits to individual developments.¹¹⁵ The challenge to South Fork Wind was later severed from the Vineyard Wind challenge and dismissed.¹¹⁶

The South Fork Wind offshore wind project demonstrates several examples of meaningful public engagement supported by the NEPA process, including:

• Through a thoughtful analysis of impacts, BOEM approved a solution that is tenable for the project developer and to stakeholders. Although the developer cannot install as many turbines in as many locations as initially planned, the project will still be able to produce the promised 132 MW of electricity, while avoiding significant impacts to habitat and transit access.
• The developer’s and community’s pursuit of a CBA helped manage the risks and concerns of the local community and worked to the benefit of the project developer, as the developer could count on the local community for support and advocacy, reducing the risk to the project. Although the East Hampton township is a relatively well-resourced community, this CBA demonstrates the mitigation that underserved communities can achieve with effective advocacy and the use of environmental collaboration and conflict resolution processes. The CBA also commits to creating well-paying union jobs in the affected community.