Offshore Wind Energy Development: Legal Framework

Offshore Wind Energy Development: Legal

Framework

Updated August 28, 2025

Congressional Research Service

https://crsreports.congress.gov

R40175

SUMMARY

Offshore Wind Energy Development: Legal

Framework

R40175

August 28, 2025

Adam Vann

Legislative Attorney

Technological advancement, financial incentives, and policy concerns have driven a global

expansion in the development of renewable energy resources. Wind energy, in particular, is often

cited as one of the fastest-growing commercial energy sources in the world. Currently, most U.S.

wind energy production capacity is based on land. A number of offshore projects have been

proposed and are at various stages of the regulatory and commercial process. However, a recent

executive order temporarily withdrew the entire U.S. Outer Continental Shelf (OCS) from wind energy leasing and

disposition, leaving the status of those and other potential offshore wind power projects in question.

The United States may permit and regulate offshore wind energy development within the areas under its jurisdiction. The

federal government and coastal states each have roles in the permitting process, and those roles depend on whether the

project is located in state or federal waters. Section 388 of the Energy Policy Act of 2005 (EPAct; P.L. 109-58) amended the

Outer Continental Shelf Lands Act (OCSLA) to address previous uncertainties regarding offshore wind projects. Under the

EPAct, the Secretary of the Interior has ultimate authority over offshore wind energy development. The statutory authority

granted by Section 388 is administered by the Bureau of Ocean Energy Management (BOEM), an agency within the

Department of the Interior. Since the passage of EPAct, BOEM has promulgated rules and guidelines governing the

permitting and operation of offshore wind facilities. In January 2023, BOEM issued a notice of proposed rulemaking that

would establish a leasing system for offshore renewable projects similar to the one in place for offshore oil and gas leasing.

In addition, several federal agencies have roles to play in permitting development and operation activities.

Congressional Research Service

Offshore Wind Energy Development: Legal Framework

Contents

Jurisdiction over the Ocean ............................................................................................................. 1

The Coastal Zone Management Act and the Role of the States ...................................................... 2

Federal Permitting ........................................................................................................................... 3

The Energy Policy Act of 2005 (EPAct) ................................................................................... 3

The National Environmental Policy Act (NEPA) ............................................................... 6

Other Statutes of Note ......................................................................................................... 8

Trump Administration Executive Orders ................................................................................. 11

Conclusion .............................................................................................................................. 13

Contacts

Author Information........................................................................................................................ 14

Congressional Research Service

Offshore Wind Energy Development: Legal Framework

echnological advancements, tax incentives, and concerns about climate change have

driven a global expansion in the development of renewable energy resources. Wind energy

is a fast-growing source of new electric power generation, and U.S. wind energy

production capacity has been increasing consistently over the past several years.1 In contrast to

Europe,2 the vast majority of wind power capacity in the United States is currently based on land.

However, multiple offshore wind and related infrastructure projects have been proposed in recent

years to the Bureau of Ocean Energy Management (BOEM).3

T

The focus of this report is the current law applicable to siting offshore wind facilities, including

the relationship between state and federal jurisdictional authorities. This report also discusses

court challenges to early federal offshore wind energy permitting decisions; regulatory activity

following the Energy Policy Act of 2005 (EPAct) that clarified jurisdiction over permitting of

offshore wind facilities;4 and recent developments with respect to the existing statutory and

regulatory framework for offshore wind energy production.

Jurisdiction over the Ocean

The United States’ authority over the oceans and its natural resources begins at the coast—often

called the “baseline” in this context—and generally extends 200 nautical miles out to sea. This is

known as the United States’ Exclusive Economic Zone (EEZ). The first 12 nautical miles

comprise the U.S. territorial sea.5 Under the 1982 United Nations Convention on the Law of the

Sea6 (UNCLOS), a coastal nation may claim sovereignty over the air space, water, seabed, and

subsoil within its territorial sea.7 U.S. Supreme Court precedent and international practice

establish that this sovereignty authorizes coastal nations to permit offshore development within

their territorial seas.8 Although the United States has not ratified UNCLOS, it generally acts in

alignment with the treaty’s terms.9

The U.S. contiguous zone extends beyond the territorial sea to 24 nautical miles from the

baseline. In this area, a coastal nation may regulate to protect its territorial sea and to enforce its

customs, fiscal, immigration, and sanitary laws.10

The jurisdiction of the federal government with respect to individual states is also important. The

Submerged Lands Act of 195311 assured coastal states control over the lands beneath coastal

1 Renewable & Alternative Fuels, U.S. ENERGY INFO. ADMIN., https://www.eia.gov/renewable/data.php#wind (last

visited July 24, 2025).

2 More information about European offshore wind projects can be found at Statistics, WIND EUROPE,

https://windeurope.org/data-and-analysis/statistics/ (last visited July 24, 2025).

3 An updated list of these leases and other documents related to offshore renewable energy projects, which are largely

wind energy projects, can be found at Lease and Grant Information, BUREAU OF OCEAN ENERGY MGMT., U.S. DEP’T OF

THE INTERIOR, https://www.boem.gov/renewable-energy/lease-and-grant-information (last visited July 24, 2025).

4 Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005) [hereinafter EPAct].

5 Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988).

6 U.N. Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261 (entered into force Nov. 16, 1994) [hereinafter

UNCLOS].

7 Id. at arts. 2.1, 2.2, 3; see also United States v. California, 332 U.S. 19, 29–41 (1947), superseded by statute,

Submerged Lands Act of 1953, 67 Stat. 29, 43 U.S.C. § 1301; Alabama v. Texas, 347 U.S. 272, 273–74 (1954).

8 See United States v. California, 436 U.S. 32, 36 (1978); United States v. Alaska, 422 U.S. 184, 198–99 (1975);

Alabama v. Texas, 347 U.S. at 273–74 (1954); United States v. California, 332 U.S. at 29–41 (1947).

9 See Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988).

10 UNCLOS, art. 33.

11 43 U.S.C. §§ 1301–1303, 1311–1315.

Congressional Research Service

1

Offshore Wind Energy Development: Legal Framework

waters in an area stretching three nautical miles from the shore in most places, and nine nautical

miles in others.12 States may regulate the coastal waters within their jurisdiction, subject to

federal regulation for “commerce, navigation, national defense, and international affairs” and the

power of the federal government to preempt state law.13 The remaining outer portions of waters

over which the United States exercises jurisdiction are federal waters.14

Thus, the federal government has jurisdiction over the potential locations for offshore wind farms

to the boundaries of its EEZ. The scope of this federal authority is discussed in greater detail later

in this report.

The Coastal Zone Management Act and the Role of

the States

States play an important regulatory role when a wind energy project is proposed for construction

in waters under both federal and state jurisdiction. As an initial matter, any wind energy project or

facility associated with such a project to be constructed in state waters, including any cables that

would be necessary to transmit power back to shore, is subject to applicable state regulation or

permitting requirements. The federal Coastal Zone Management Act15 (CZMA) recognizes three

state regulatory frameworks that may be relevant: (1) “State establishment of criteria and

standards for local implementation, subject to administrative review and enforcement”; (2)

“[d]irect State land and water use planning and regulation”; and (3) regulation development and

implementation by local agencies, with state-level review of program decisions.16 Within these

categories, coastal zone regulation varies significantly among the states.

In addition, the CZMA encourages states to enact coastal zone management plans to coordinate

protection of habitats and resources in coastal waters.17 The CZMA establishes a policy of

preservation alongside sustainable use and development compatible with resource protection.18

State coastal zone management programs that are approved by the Secretary of Commerce

receive federal monetary and technical assistance. State programs must designate conservation

measures and permissible uses for land and water resources19 and must address various sources of

water pollution.20

Once a state program is in place, the CZMA requires that the federal government and federally

permitted activities be “consistent to the maximum extent practicable with” that program.21

Following a Supreme Court decision holding that oil and gas leasing in the federal waters of the

12 Id. § 1301(a)(2). State jurisdiction typically extends three nautical miles (approximately 3.3 miles) seaward of the

coast or “baseline.” Texas and the Gulf Coast of Florida have jurisdiction over an area extending three “marine

leagues” (nine nautical miles) from the baseline. Id. § 1301(a)(2).

13 Id. §§ 1314(a), 1311(a)(2).

14 Id. § 1302.

15 16 U.S.C. §§ 1451–1465.

16 Id. § 1455(d)(11).

17 Coastal U.S. states and territories, including the Great Lakes states, are eligible to receive federal assistance for their

coastal zone management programs. All eligible coastal and Great Lakes states and territories except Alaska participate

in the program. See Office For Coastal Management, Coastal Zone Management Programs, NAT’L OCEANIC &

ATMOSPHERIC ADMIN., https://coast.noaa.gov/czm/mystate/ (last visited July 24, 2025).

18 16 U.S.C. § 1452(1), (2).

19 Id. § 1455(d)(2), (9)–(12).

20 Id. § 1455(d)(16).

21 Id. § 1456(c).

Congressional Research Service

2

Offshore Wind Energy Development: Legal Framework

Outer Continental Shelf (OCS) did not trigger the requirement for state review under the CZMA,

Congress amended the “consistency review” provision to include the impacts on a state coastal

zone from actions in federal waters.22 Thus, states may participate in federal efforts to permit

projects in federal waters to ensure that such projects are consistent with state coastal zone

management regulation.

Federal Permitting

The production of energy on federal and federally controlled lands, including the OCS, requires

some form of permission, such as a right-of-way, easement, or license. For onshore wind projects

on federal public lands, the Department of the Interior (DOI), through the Bureau of Land

Management, has created a regulatory program under the Federal Land Policy and Management

Act of 1976.23 A federal statute expressly governing offshore wind energy development was not

enacted until the Energy Policy Act of 2005. Before enactment of EPAct, some permitting in

support of offshore wind energy development had taken place, but the use of the laws existing at

that time proved controversial and was challenged in court. The previous regulatory regime, the

conflicts it engendered, and EPAct’s grant of legal authority to permit offshore wind in federal

waters are discussed below.

The Energy Policy Act of 2005 (EPAct)

Prior to enactment of EPAct in 2005, the Army Corps of Engineers (Corps) took the lead role in

the federal offshore wind energy permitting process, exercising jurisdiction under Section 10 of

the Rivers and Harbors Act (RHA),24 as amended by the Outer Continental Shelf Lands Act

(OCSLA).25 The Corps has jurisdiction under these laws to permit obstructions to navigation

within the “navigable waters of the United States” and on the OCS.26 The Corps’ jurisdiction over

potential offshore wind projects had never been made explicit, however.

22 Id.; Sec’y of the Interior v. California, 464 U.S. 312, 315 (1984), superseded by statute, Coastal Zone Act

Reauthorization Amendments of 1990, Pub. L. No. 101-508, 104 Stat. 1388-299.

23 43 U.S.C. §§ 1701–1785.

24 33 U.S.C. §§ 403–687. Section 10 was enacted in 1899, and its text has not changed substantively since that time. It

states:

The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity

of any of the waters of the United States is prohibited; and it shall not be lawful to build or

commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or

other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the

United States, outside established harbor lines, or where no harbor lines have been established,

except on plans recommended by the Chief of Engineers and authorized by the Secretary of the

Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course,

location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge,

or enclosure within the limits of any breakwater, or of the channel of any navigable water of the

United States, unless the work has been recommended by the Chief of Engineers and authorized by

the Secretary of the Army prior to beginning the same.

33 U.S.C. § 403.

25 43 U.S.C. §§ 1331–1356a.

26 33 U.S.C. § 403. Corps regulations define the “navigable waters of the United States” as “those waters that are

subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible

for use to transport interstate or foreign commerce.” 33 C.F.R. § 329.4. Under the RHA, navigable waters “includes

only those ocean and coastal waters that can be found up to three geographic miles seaward of the coast.” Alliance to

Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 288 F. Supp. 2d 64, 72 (D. Mass. 2003), aff’d, 398 F.3d 105 (1st

(continued...)

Congressional Research Service

3

Offshore Wind Energy Development: Legal Framework

Section 388 of EPAct addresses some of the uncertainty related to federal jurisdiction over

offshore wind energy development by amending OCSLA to establish legal authority for federal

review and approval of various offshore energy-related projects. Section 388 authorizes the

Secretary of the Interior, in consultation with other federal agencies, to grant leases, easements, or

rights-of-way on the OCS for certain activities—wind energy development among them—not

authorized by other relevant statutes.27

EPAct also makes clear that federal agencies with permitting authority under other federal laws

retain their jurisdiction.28 Thus, offshore development continues to require a Corps permit

pursuant to the RHA. Federal agencies that take actions with respect to energy development must

also, for example, comply with applicable environmental review requirements and species

protection laws.29 The legislative language does not clearly dictate which agency should take the

lead role in coordinating federal permitting and responsibility for preparing analysis under the

National Environmental Policy Act (NEPA).30 However, the language does suggest that DOI is

charged with primary responsibility: The EPAct directs the Secretary of the Interior to consult

with other agencies as a part of its leasing, easement, and right-of-way granting process,31 and

DOI is responsible for ensuring that activities carried out pursuant to its new authority provide for

“coordination with relevant federal agencies.”32 The law also directs the Secretary to establish a

system of “royalties, fees, rentals, bonuses, or other payments” that will ensure a fair return to the

United States for any property interest granted under this provision.33

While Section 388 of EPAct provided DOI with significant flexibility in crafting a regulatory

regime for offshore wind energy development, the act specifically addressed certain aspects of the

process related to the grant of property interests. First, the act directed that leases, easements, and

rights-of-way are to be issued on a competitive basis, subject to limited exceptions.34 The

Cir. 2005); see also 33 C.F.R. § 329.12(a). On the OCS, however, the Corps’ regulatory jurisdiction extends beyond

that three-mile limit for certain purposes. 43 U.S.C. § 1333(a)(1), (e).

27 43 U.S.C. § 1337(p)(1). DOI authority to grant leases, easements, or rights-of-way on the OCS is contingent upon the

permitted activities being consistent with the purposes specified by the law. The relevant property interest may only be

issued if the OCS activity will:

(A) support exploration, development, production, or storage of oil or natural gas, except that a

lease, easement, or right-of-way shall not be granted in an area in which oil and gas preleasing,

leasing, and related activities are prohibited by a moratorium;

(B) support transportation of oil or natural gas, excluding shipping activities;

(C) produce or support production, transportation, or transmission of energy from sources other

than oil and gas; or

(D) use, for energy-related purposes or for other authorized marine-related purposes, facilities

currently or previously used for activities authorized under ... [the OCLSA], except that any oil and

gas energy-related uses shall not be authorized in areas in which oil and gas preleasing, leasing, and

related activities are prohibited by a moratorium.

EPAct, § 388(a), adding new 43 U.S.C. § 1337(p)(1)(A)-(D).

28 43 U.S.C. § 1337(p)(9).

29 See, e.g., Env’t Def. Ctr. v. BOEM, 36 F.4th 850, 891 (9th Cir. 2022) (holding that BOEM had not satisfied its

requirements under NEPA, the ESA, and the CZMA when it authorized well stimulation treatments off the coast of

California).

30 NEPA and its role in the offshore wind permitting process are discussed infra in the subsection entitled “Other

Statutes of Note.”

31 43 U.S.C. § 1337(p)(1).

32 Id. § 1337(p)(4).

33 Id. § 1337(p)(2)(A).

34 Id. § 1337(p)(3). The statute provides for two exceptions to the general requirement that a property interest issued

(continued...)

Congressional Research Service

4

Offshore Wind Energy Development: Legal Framework

Secretary is further authorized to provide for the duration of any property interest granted under

this subsection and to provide for suspension and cancellation of any lease, easement, or right-ofway.35

In general, an offshore wind energy developer that is granted a lease, easement, or right-of-way is

responsible for royalties or other payments. Section 388 of EPAct also established the method for

allocating those payments among states. The allocation is based upon a formula that equitably

distributes to states 27% of the revenues collected by the federal government, based on the

proximity of the project to the affected states’ offshore boundaries.36 The act established that

states that have a “coastline that is located within 15 miles of the geographic center of the

project” are entitled to a revenue share.37 Thus more than one state may be eligible to receive a

portion of these revenues, depending upon the location of a project.

In addition, EPAct authorized considerable regulation of impacts associated with offshore

development. It required the Secretary to ensure that “any activity under this subsection” be

carried out in a manner that adequately addresses specified issues, including environmental

protection, safety, protection of U.S. national security, and protection of the rights of others to use

the OCS and its resources.38 It also established specific financial security requirements for

projects. The law requires the holder of a Section 388 property interest to “provide for the

restoration of the lease, easement, or right-of-way” and to furnish a surety bond or other form of

security, leaving the amount and the exact purposes to which any forfeited sums will be applied to

the Secretary’s discretion.39 Further, in conjunction with the authority to require some form of

financial assurance, the Secretary is empowered to impose “such other requirements as the

Secretary considers necessary to protect the interests of the public and the United States.”40 Thus

the Secretary, depending on how these authorities are exercised, may potentially regulate many

aspects of any industry that is permitted to operate on the OCS under this subsection of the

OCSLA.

EPAct also contained a provision expressly providing for a state consultative role in the

permitting process. Section 388 requires the Secretary of the Interior to provide for coordination

and consultation with a state’s governor or the executive of any local government that may be

affected by a lease, easement, or right-of-way granted under this authority.41 In addition, the law

makes clear that it does not affect any state’s claim to “jurisdiction over, or any right, title, or

interest in, any submerged lands.”42

In 2009, DOI issued a final rule establishing the permitting process and setting forth a royalty

collection and allocation structure for OCS renewable energy projects, as directed by EPAct.43

under this provision be granted on a “competitive basis”: (1) if the Secretary of the Interior determines that there is no

competitive interest, or (2) if the project meets certain criteria indicating a limited scope. Id.

35 Id. § 1337(p)(5).

36 Id. § 1337(p)(2)(B).

37 Id.

38 Id. § 1337(p)(4). DOI also appears to have adopted this interpretation in a rulemaking, stating that it “interprets the

authority granted in section 388(a) of the Energy Policy Act of 2005 to issue leases, easements or rights-of-way as also

providing MMS authority to regulate or permit the activities that occur on those leases, easements or rights-of-way, if

those activities are energy related.” 70 Fed. Reg. 77345, 77346 (Dec. 30, 2005).

39 43 U.S.C. § 1337(p)(6).

40 Id.

41 Id. § 1337(p)(7).

42 EPAct, § 388(e).

43 74 Fed. Reg. 19638 (Apr. 29, 2009).

Congressional Research Service

5

Offshore Wind Energy Development: Legal Framework

The rulemaking authorized BOEM to issue two types of OCS leases. Limited leases grant access

and operational rights to the lessee for activities related to the production of energy, including

assessment and testing activities, but do not authorize production of energy products for sale or

distribution.44 Such leases generally support exploration and allow the lessee to develop a fuller

proposal for energy production, potentially leading to the sale of a commercial lease. Commercial

leases give the lessee full rights to receive authorizations necessary to assess, test, and produce

renewable energy on a commercial scale over the long term (approximately 30 years).45

The 2009 final rule set forth a formula for determining payment amounts, including lease

payments and royalties, owed by parties participating in OCS renewable energy projects.46 The

rulemaking also establishes a formula for allocation of federal revenues from lessees. As

mandated by EPAct, BOEM shares 27% of revenues for any project “located wholly or partially

within the area extending three nautical miles seaward of State submerged lands”47 with any

“eligible state,” which is defined as a “coastal State having a coastline (measured from the nearest

point) no more than 15 miles from the geographic center of a qualified project area.”48 To

determine each eligible state’s share of those revenues, the agency uses an “inverse distance

formula, which apportions shares according to the relative proximity of the nearest point on the

coastline of each eligible State to the geographic center of the qualified project area.”49

In April 2024, BOEM issued a rule to amend the administrative processes for offshore renewable

energy leasing, including wind energy.50 The rule requires BOEM to schedule offshore wind

leasing well in advance for planning purposes (similar to the five-year plans required for offshore

oil and gas operations under the OCSLA), reform the competitive auction process for offshore

wind leases, and allow for more flexibility in oversight of offshore geophysical and geotechnical

surveying.51

The National Environmental Policy Act (NEPA)

NEPA requires federal agencies to analyze and disclose the environmental consequences of

certain federal actions. In general, NEPA requires various levels of environmental analysis

depending on the circumstances and the type of federal action contemplated.52 While a number of

categorical exclusions may be available to bypass full NEPA analysis, major federal actions that

are found to significantly affect the environment generally require the preparation of an

environmental impact statement (EIS), a document containing detailed analysis of the project as

proposed, as well as other alternatives, including taking no action at all.53 If it is uncertain

whether the action will have a significant environmental impact, an agency may prepare an

environmental assessment (EA) to assess the impacts of the project, and proceed to an EIS only if

44 30 C.F.R. § 585.113.

45 Id. § 585.235.

46

30 C.F.R. § 585.540.

47 Id.

48 Id. at §§ 585.112, 585.540.

49 Id. § 585.540(c).

50 Renewable Energy Modernization Rule, 89 Fed. Reg. 42602 (May 15, 2024).

51 Id. For more information on the five-year planning process for offshore oil and gas leasing, see CRS Report

RL33404, Offshore Oil and Gas Development: Legal Framework, by Adam Vann (2018).

52 For more information on NEPA’s requirements, see CRS In Focus IF12560, National Environmental Policy Act: An

Overview, by Kristen Hite and Heather McPherron (2025).

53 43 U.S.C. § 4336.

Congressional Research Service

6

Offshore Wind Energy Development: Legal Framework

necessary.54 Potential environmental impacts of offshore wind energy projects include, for

example, impacts on fish and wildlife (e.g., marine mammals, birds, shellfish, finfish) and their

habitats, including ocean waters and the benthic zone wildlife; impacts on aesthetics, cultural

resources, and socioeconomic conditions; and impacts on air and water quality.55

Many wind energy projects have similar environmental impacts, and the impacts of activities at

the exploration or assessment stages may be less significant than the potential impacts of

commercial activity. In addition, a lessee may need to develop a detailed project description for

commercial leasing before the impacts of the full project may be known. To account for these

common variables, DOI began a “tiered” review process for offshore wind permitting in late

2007, publishing the Programmatic Environmental Impact Statement for Alternative Energy

Development and Production and Alternate Use of Facilities on the Outer Continental Shelf.56

Among other things, this document established a baseline analysis that helps to satisfy the

requirements of NEPA for offshore renewable energy leasing, including offshore wind projects.

This can reduce the regulatory burden of NEPA obligations for subsequent federal actions related

to offshore wind.

Recent developments may influence BOEM’s NEPA compliance efforts for offshore wind

projects. First, in Seven County Infrastructure Coalition v. Eagle County, the Supreme Court held

that federal agencies are not required to consider indirect environmental impacts upstream or

downstream of a project requiring federal authorization.57 The Court also held that federal

agencies are entitled to “substantial deference” in evaluating scope, causality, potential

alternatives to the action, and other technical aspects of NEPA review.58

Additionally, in November 2024, the U.S. Court of Appeals for the D.C. Circuit declared that

President Carter’s 1977 executive order mandating CEQ to issue regulations binding on all

federal agencies exceeded the President’s statutory authority.59 However, a subsequent majority

concurring en banc declined to extend that reasoning.60 Also, in February 2025, the U.S. District

Court for the District of North Dakota invalidated CEQ’s 2024 regulations based in part on

54 Id.

55 See, e.g., BUREAU OF OCEAN ENERGY MGMT., U.S. DEP’T OF THE INTERIOR, VINEYARD WIND 1 FINAL

ENVIRONMENTAL IMPACT STATEMENT (2021), https://www.boem.gov/sites/default/files/documents/renewableenergy/state-activities/Vineyard-Wind-1-FEIS-Volume-1.pdf.

56 Document available at Bureau of Ocean Energy Mgmt., U.S. Dep’t of the Interior, Guide To The OCS Alternative

Energy Final Programmatic Environmental Impact Statement (2007), https://www.boem.gov/renewable-energy/guideocs-alternative-energy-final-programmatic-environmental-impact-statement-eis. NEPA requires programmatic

environmental impact statements be reconsidered every five years. See 42 U.S.C. § 4336b. Where an existing NEPA

analysis may serve for a given proposal, DOI allows documentation via memorandum to file that a proposed action is

adequately analyzed in an existing environmental impact statement or environmental assessment. U.S. Dep’t of the

Interior Handbook of National Environmental Policy Act Implementing Procedures § 3.1, available at

https://www.doi.gov/media/document/doi-nepa-handbook. If a programmatic analysis is on file to support a specific

project, existing analysis may be incorporated by reference and supplemented with new analysis pertinent to the action

at hand. Id. at 3.2. For further discussion of tiered reviews and other aspects of NEPA compliance, see CRS In Focus

IF12560, National Environmental Policy Act: An Overview, by Kristen Hite and Heather McPherron (2025).

57 145 S. Ct. 1497 (2025). For further discussion of Seven County, see CRS Legal Sidebar LSB11333, “Deference

Squared”: Supreme Court Limits NEPA’s Scope and Courts’ Reach in Seven County Infrastructure Coalition, by

Kristen Hite (2025).

58 Seven Cnty., 145 S. Ct. at 1511-1512.

59 Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902 (D.C. Cir. 2024).

60 See Marin Audubon Socy. v. Fed. Aviation Administration, 129 F.4th 869, 873 (D.C. Cir. 2025).

Congressional Research Service

7

Offshore Wind Energy Development: Legal Framework

finding that they exceeded statutory authority, but that ruling was subsequently vacated and

dismissed as moot by the U.S. Court of Appeals for the Eighth Circuit.61

Following the Eighth Circuit decision, CEQ rescinded its NEPA regulations in their entirety.62

Other agencies have also amended or rescinded portions of their NEPA regulations, including

DOI, which issued an interim final rule partially rescinding its NEPA regulations and transferring

many others to an internal handbook via interim final rule on July 3, 2025.63 It is unclear whether

and to what extent these changes will impact DOI’s offshore wind leasing oversight.

Other Statutes of Note64

In addition to the role interested parties and cooperating agencies may play under NEPA, certain

federal agencies have independent sources of jurisdiction over specific ocean resources. Some of

the most relevant authorities are the Endangered Species Act (ESA),65 the Marine Mammal

Protection Act (MMPA),66 and the Migratory Bird Treaty Act (MBTA).67 The agencies that

administer those statutes do not have final authority over leasing decisions, but are likely to be

involved in the environmental review process leading to a final DOI decision.68

Briefly, each of those laws sets parameters for federal activities that potentially harm designated

species of plants and animals. Offshore wind energy projects may impact marine species due to

their obstructive, noise, or water quality impacts, and they may impact avian species primarily as

a navigational hazard (i.e., birds striking wind turbine blades in motion).69

The ESA prohibits any person, including private entities and government agencies, from

“tak[ing]” an endangered species.70 This prohibition may be extended to “threatened” species.71

Take is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or

collect, or to attempt to engage in any such conduct.”72 Additionally, a federal agency undertaking

an action, such as issuing a permit, that could affect a listed species or its critical habitat is subject

61 Iowa v. CEQ, 765 F. Supp. 3d 859 (D.N.D. 2025), vacated and appeal dismissed by, No. 25-1641, 2025 WL

2205808 (8th Cir. July 29, 2025); see also CRS Legal Sidebar LSB11260, Marin Audubon Society v. Federal Aviation

Administration: D.C. Circuit Challenges CEQ’s Authority to Issue NEPA Regulations, by Kristen Hite and Abigail A.

Graber (2025).

62 Removal of National Environmental Policy Act Implementing Regulations, Interim Final Rule, 90 Fed. Reg. 10610

(Feb. 25. 2025).

63 National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 29498 (July 3,2025).

64 CRS Coordinator of Research Planning for the American Law Division Erin Ward and former Legislative Attorney

Linda Tsang assisted with the preparation of this section.

65 16 U.S.C. §§ 1531–1544.

66 Id. §§ 1361–1407.

67 Id. §§ 703–712.

68 These agencies include the U.S. Fish and Wildlife Service, an agency under the jurisdiction of the Department of the

Interior, and the National Marine Fisheries Service, an agency under the jurisdiction of the Department of Commerce.

69 See BUREAU OF OCEAN ENERGY MGMT., U.S. DEP’T OF THE INTERIOR, SUPPORTING NATIONAL ENVIRONMENTAL

POLICY ACT DOCUMENTATION FOR OFFSHORE WIND ENERGY DEVELOPMENT RELATED TO AVIAN SPECIES RESEARCH

(2022), https://www.boem.gov/sites/default/files/documents/renewable-energy/stateactivities/Avian%20White%20Paper.pdf.

70 Under the ESA, species are listed as either “endangered” or “threatened” based on the risk of their extinction. An

“endangered” species is “any species which is in danger of extinction throughout all or a significant portion of its

range.” 16 U.S.C. § 1532(6).

71 Id. § 1533(d). A “threatened” species is “any species which is likely to become an endangered species within the

foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20).

72 Id. § 1532(19).

Congressional Research Service

8

Offshore Wind Energy Development: Legal Framework

to Section 7 of the ESA.73 Section 7 of the ESA requires that federal agencies ensure that their

actions do not jeopardize listed species or adversely modify or destroy critical habitat.74 To

comply with this obligation, the act requires federal agencies to consult with the U.S. Fish and

Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS or NOAA Fisheries),

depending upon the species affected, about the potential effect of their actions on listed species

and critical habitat.75

The Section 7 consultation process begins with a determination, with the help of FWS and

NMFS, that a listed species or its designated critical habitat may be present in a project area.76 If a

listed species or critical habitat may be present, then the “action agency” (in this context, DOI, as

it considers acting on a permitting decision) generally must prepare a biological assessment,

evaluating the potential effects of the action on the listed species and critical habitat.77 If the

acting federal agency determines that a project may adversely affect a listed species or critical

habitat, it must undertake formal consultation with the Services, which concludes with a

biological opinion.78 The biological opinion, which is prepared by FWS or NMFS as appropriate,

contains a detailed analysis of the effects of the agency action and determines whether the

proposed action is likely to (1) jeopardize the species or (2) destroy or adversely modify its

critical habitat.79

Projects that may take listed species but not jeopardize their survival may proceed, subject to

certain terms and conditions to implement “reasonable and prudent measures” to minimize their

impacts on the species.80 Any such biological opinion includes an “incidental take statement” that

allows the agency to move forward with the action or lease that is expected to result in take of

some individuals of a listed species without triggering penalties under the Act. The term

incidental means the harm occurs as part of, but is not the purpose of, carrying out an otherwise

lawful activity.81 The incidental take statement specifies the anticipated amount of incidental take

from the action, and any take consistent with the incidental take statement’s terms and conditions

is not considered a prohibited taking.82

The MMPA prohibits, with certain exceptions, taking marine mammals in U.S. waters and by

persons and vessels subject to U.S. jurisdiction on the high seas.83 The MMPA defines take to

mean to “harass, hunt, capture, or kill” marine mammals or to attempt those activities.84 The

statute is jointly administered by the Secretary of Commerce (through NOAA/NMFS) and the

73 Id. § 1536. Listed species are species determined to be threatened species or endangered species under the Act.

74 Id. § 1536(a)(2).

75 Id. For more on the consultation process, see CRS Report R46867, Endangered Species Act (ESA) Section 7

Consultation and Infrastructure Projects, by Erin H. Ward and Pervaze A. Sheikh (2021).

76 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c). Some protections also attach to species proposed for listing and

critical habitat proposed for designation. 16 U.S.C. § 1536(a)(4). Federal agencies must “confer” with the appropriate

Secretary if their actions are likely to jeopardize the continued existence of any proposed species or adversely modify

critical habitat proposed for designation. Id. This process is distinct from the Section 7 consultation process, less

formal, and meant to assist planning early in the process should the species be listed and more definite protections

attach. See id. § 1536(a)(4); 50 C.F.R. § 402.10.

77 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12(b), (d).

78 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14(e).

79 16 U.S.C. § 1536(b)(3); 50 C.F.R. § 402.14(h).

80 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).

81 16 U.S.C. § 1539(a)(1)(B).

82 Id. § 1536(b)(4), (o)(2); 50 C.F.R. § 402.14(i)(1)(i)–(v).

83 16 U.S.C. § 1371(a).

84 Id. § 1362(13).

Congressional Research Service

9

Offshore Wind Energy Development: Legal Framework

Secretary of the Interior (through FWS).85 The MMPA allows FWS and NMFS to authorize the

incidental taking of small numbers of marine mammals for a period of not more than five

consecutive years.86 Such incidental take may be authorized only upon certain findings, in

particular that the take will have a negligible impact on the species or stock.87

Implementing regulations establish procedures for administering the MMPA, including how to

apply for authorization for incidental takes.88 These regulations set forth the procedures for

submitting requests for such authorization to the NMFS or FWS, standards for review, and the

form of the authorization.89

The MBTA is the domestic law that implements U.S. obligations under various treaties for the

protection of migratory birds.90 The MBTA generally prohibits the taking, killing, possession, or

transportation of, and trafficking in, migratory birds, their eggs, parts, and nests unless authorized

by a permit.91 The MBTA does not define take. FWS regulations define take to mean to “pursue,

hunt, shoot, wound, kill, trap, capture, or collect” or to attempt to do so.92 The rotating turbines of

wind energy projects may unintentionally cause this type of harm to migratory bird species. It is

an open legal question whether the MBTA prohibits such “incidental take.”93 Unlike the ESA and

the MMPA, the MBTA does not explicitly authorize the incidental taking of birds by an otherwise

lawful activity, such as a wind energy project.94 To the extent the MBTA’s prohibitions apply to

the incidental take of migratory birds by the operation of permitted wind energy facilities, the

Secretary of the Interior is authorized to determine if, and by what means, the taking of migratory

birds should be allowed.95 Any such allowances must be “compatible with the terms of the

conventions” and give “due regard to the zones of temperature and to the distribution, abundance,

economic value, breeding habits, and times and lines of migratory flight” of migratory birds.96

FWS regulations at 50 C.F.R. Part 21 allow for take permits for special uses, although an

applicant must make “a sufficient showing of benefit to the migratory bird resource, important

85 The statute defines Secretary as the Secretary of the department in which NOAA is operating (Commerce) for

purposes of regulation related to all members of the order Cetacea (whales and porpoises) and all members, except

walruses, of the order Pinnipedia (seals). The statute defines Secretary as Secretary of the Interior (operating through

the FWS) with respect to all other marine mammals (manatees, dugongs, polar bears, sea otters, and walruses). 16

U.S.C. § 1362(12)(A).

86 Id. § 1371(5)(A).

87 Id. § 1371(5)(A)(i).

88 50 C.F.R. pt. 18 (FWS regulations); 50 C.F.R. pt. 216, Subpart I (NMFS regulations).

89 50 C.F.R. §§ 18.27, 216.31–216.47.

90 16 U.S.C. §§ 703-712. See also CRS Report R44694, The Migratory Bird Treaty Act (MBTA): Selected Legal Issues,

by Cassandra J. Barnum (2025).

91 See 16 U.S.C. §§ 703-704. Birds that receive protection under the MBTA are listed at 50 C.F.R. § 10.13.

92 50 C.F.R. § 10.12.

93 See Barnum, supra note 90, at 7-16.

94 To address some of the uncertainty regarding incidental takes and compliance with the MBTA, in 2015, the FWS

announced that it was considering developing an MBTA permitting program to authorize incidental takes of migratory

birds. Migratory Bird Permits: Programmatic Environmental Impact Statement; Notice of Intent, 80 Fed. Reg. 30,032,

30,035 (proposed May 26, 2015) (noting that the FWS was considering “whether a general conditional authorization

can be developed for hazards to birds related to wind energy generation”). However, in 2018, the FWS announced that

it was no longer pursuing the action. Migratory Bird Permits; Programmatic Environmental Impact Statement,

Announcement, 83 Fed. Reg. 24,080 (May 24, 2018).

95 16 U.S.C. § 704.

96 Id.

Congressional Research Service

10

Offshore Wind Energy Development: Legal Framework

research reasons, reasons of human concern for individual birds, or other compelling

justification.”97

Due to differing legal analyses by various courts and changing interpretations of the MBTA’s

prohibitions by different Administrations, it is unclear how the MBTA prohibitions apply to

incidental taking of migratory birds from offshore wind energy projects.98 A number of DOI

memoranda have reached different conclusions on the MBTA’s applicability to incidental takes.

Most recently, on April 11, 2025, Acting Solicitor Gregory Zerzan of the second Trump

Administration issued a memorandum opinion, M-37085, instructing all offices and bureaus of

DOI to treat a 2017 opinion—which found that the MBTA’s take prohibitions “do not apply to the

accidental or incidental taking or killing of migratory birds”—as controlling “except with respect

to actions relying on such opinion that are to be taken within the jurisdiction of the United States

District Court for the Southern District of New York,” a nod to a 2020 decision from that court

that vacated the 2017 opinion.99

Additionally, on July 29, 2025, Secretary of the Interior Doug Burgum issued Order No. 3437,

titled “Ending Preferential Treatment for Unreliable, Foreign-Controlled Energy Sources in

Department Decision Making.”100 The order instructed Assistant Secretaries to conduct various

reviews, including of “wildlife permits and analyses, including but not limited to ... Incidental

Take permits” and “Migratory Bird Treaty Act compliance consultation.”101 It remains to be seen

whether this order will result in FWS further revising its position on incidental take under the

MBTA.

Trump Administration Executive Orders

The current Administration has issued a series of executive documents that may limit or even

prevent offshore wind energy development in federal waters. The first and arguably most

impactful of these for the wind energy industry is an executive memorandum titled “Temporary

Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review

of the Federal Government’s Leasing and Permitting Practices for Wind Projects” (the Wind

Directive), issued on the first day of the Administration, January 20 2025.102 This directive

mandated several actions designed to limit further wind energy leasing and development on the

OCS.

The Wind Directive withdrew all areas in the OCS from “disposition for wind energy leasing”

beginning on January 21, 2025, and remaining in effect until revocation via another executive

action. The authority for this withdrawal is Section 12(a) of OCSLA, which authorizes the

President to “from time to time, withdraw from disposition any of the unleased lands of the outer

Continental Shelf.”103 While previous Administrations have withdrawn offshore areas on many

occasions, this appears to be the first withdrawal under Section 12(a) of OCSLA that focuses

exclusively on offshore wind projects. There is a dearth of case law interpreting withdrawal

97 50 C.F.R.. § 21.95.

98 See Barnum, supra note 90, at 7-16.

99 Memorandum from Acting Solic., DOI, to Sec’y & Asst. Sec'y for Fish & Wildlife & Parks, DOI (Apr. 11, 2025)

https://www.doi.gov/sites/default/files/documents/2025-04/m-37085.pdf.

100 Secretary of the Interior, Order No. 3437: Ending Preferential Treatment for Unreliable, Foreign-Controlled Energy

Sources in Department Decision Making (July 29, 2025), available at https://www.doi.gov/document-library/secretaryorder/so-3437-ending-preferential-treatment-unreliable-foreign.

101 Id. at 3-4.

102 90 Fed. Reg. 8363 (Jan. 20, 2025) (hereinafter Wind Directive).

103 43 U.S.C. §1341(a).

Congressional Research Service

11

Offshore Wind Energy Development: Legal Framework

authority under Section 12, so it is not clear whether Presidents can limit withdrawals to certain

types of energy production. Similarly, it is not clear that the President has the authority to revoke

Section 12 withdrawals, and at least one federal court has held that he does not have such

authority.104 Note, however, that the Wind Directive contemplates a future revocation via

presidential memorandum, and thus the Administration could argue that conclusion of the

withdrawal is not a revocation but rather the endpoint of a Section 12 withdrawal that was always

intended to be time-limited.

The Wind Directive also directed the heads of all “relevant agencies” to refrain from issuing “new

or renewed approvals, rights of way, permits, leases, or loans for onshore or offshore wind

projects pending the completion of a comprehensive assessment and review of Federal wind

leasing and permitting practices.”105 The memorandum directs the Secretary of the Interior to lead

the comprehensive assessment effort in consultation with a number of other specified federal

agencies.106

In May 2025, 17 states brought a legal challenge seeking to enjoin the execution of the Wind

Directive.107 The states argue that “[t]he various actions taken by Agency Defendants to

implement the Wind Directive are arbitrary and capricious under the Administrative Procedure

Act”; that the directive and the implementing actions are “contrary to and in excess of statutory

authority under numerous federal statutes including the Clean Air Act, the Endangered Species

Act, and the Outer Continental Shelf Lands Act ... among others”; and that both are beyond any

legal authority of the executive branch as granted by Congress.108

DOI has also issued a series of orders in 2025 that may hamper or cease development of offshore

wind capacity in federal waters, including the following:

•

•

A July 15, 2025, secretarial order issued by DOI’s Deputy Chief of Staff—Policy

mandates that “all decisions, actions, consultations, and other undertakings ...

related to wind and solar energy facilities shall require submission to the Office

of the Executive Secretariat and Regulatory Affairs, subsequent review by the

Office of the Deputy Secretary, and final review by the Office of the

Secretary.”109 This requirement does not apply to other energy facilities.

An August 1, 2025, secretarial order issued by Secretary of the Interior Doug

Burgum directing DOI to “optimize the use of lands under its direct

management” during NEPA reviews by considering the surface area footprint of

proposed energy projects,110 an approach likely to hinder permitting of wind and

104 League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013 (D. Alaska 2019). For further discussion of this

litigation and the scope of the president’s Section 12 authority, see CRS Legal Sidebar LSB11259, Biden

Administration Withdraws Offshore Areas from Oil and Gas Leasing: Can a Withdrawal Be Withdrawn?, by Adam

Vann (2025).

105 90 Fed. Reg. at 8364.

106 Id.

107 Complaint for Declaratory and Injunctive Relief, New York v. Trump, No. 1-25-cv-11221 (D. Mass. May 5, 2025),

available at https://ag.ny.gov/sites/default/files/court-filings/state-of-new-york-et-al-v-donald-trump-united-statesdepartment-of-the-interior-complaint-2025.pdf.

108 Id. at 5.

109 United States Department of the Interior Memorandum: Departmental Review Procedures for Decisions, Actions,

Consultations, and Other Undertakings Related to Wind and Solar Energy Facilities (July 15, 2025), available at

https://www.doi.gov/media/document/departmental-review-procedures-decisions-actions-consultations-and-other.

110 United States Department of the Interior Secretarial Order 3438: Managing Federal Energy Resources and

Protecting the Environment (August 1, 2025), available at https://www.doi.gov/document-library/secretary-order/so3438-managing-federal-energy-resources-and-protecting.

Congressional Research Service

12

Offshore Wind Energy Development: Legal Framework

•

•

solar production facilities on federal lands, as these projects require a greater

surface acreage than other forms of energy production do. The order claims that

the land management requirements of various federal statutes “give rise to the

question on whether the use of Federal lands for any wind and solar projects is

consistent with the law, given these projects’ encumbrance on other land uses, as

well as their disproportionate land use when reasonable project alternatives with

higher capacity densities are technically and economically feasible.”111

An August 7, 2025, announcement that BOEM and BSEE will undertake a “full

review of offshore wind energy regulations,” including the Renewable Energy

Modernization Rule and financial assurance requirements and decommissioning

cost estimates for offshore wind projects, “to ensure alignment with [OCSLA]

and America’s energy priorities under President Donald J. Trump.”112

A series of actions aimed at specific offshore wind projects already in

development, including an August 22, 2025, director’s order issued by the acting

director of BOEM instructing Revolution Wind to “halt all ongoing activities

related to the Revolution Wind Project” off the coast of Rhode Island pending

review by BOEM to “address concerns related to the protection of national

security interests of the United States and prevention of interference with

reasonable uses of the exclusive economic zone, the high seas, and the territorial

seas”113 and reported plans to vacate BOEM’s recent approval of a U.S. wind

project off the coast of Maryland.114

Conclusion

Interest in developing offshore wind energy resources has grown in recent years, and a number of

projects are in various stages of development. The legal and regulatory framework to manage the

issuance of permits for offshore development in the U.S. territorial sea and on the Outer

Continental Shelf is still developing. The EPAct of 2005 was an important step in defining that

framework, as it amended OCSLA to provide DOI with authority to grant offshore property

interests for the purpose of wind energy development (exercised through BOEM). Additional

laws that predate the 2005 EPAct enactment continue in force and also appear likely to remain a

source of regulation. Further, states have a role under existing federal law in permitting offshore

wind energy development, including ensuring that the projects are consistent with their plans for

management of coastal zones. The second Trump Administration, however, has withdrawn

offshore areas for further wind leasing and has paused further action on offshore wind pending

review, leaving the near-term future of wind energy development uncertain.

111 Id.

112 U.S. Dep’t of the Interior, Interior Launches Overhaul of Offshore Wind Rules to Prioritize American Energy

Security (Aug. 7, 2025), available at https://www.doi.gov/pressreleases/interior-launches-overhaul-offshore-windrules-prioritize-american-energy-security.

113 U.S. Dep’t of the Interior, Bureau of Ocean Energy Management, Director’s Order (Aug. 22, 2025),

https://www.boem.gov/sites/default/files/documents/renewable-energy/Director%26%23039%3BsOrder20250822.pdf?VersionId=VO3AWAHsV_kDvT048xf8dG7A.Rsj6HZJ.

114 Reuters, Trump administration plans to cancel approval of Maryland offshore wind project (Aug. 26, 2025),

https://www.msn.com/en-us/news/us/trump-administration-plans-to-cancel-approval-of-maryland-offshore-windproject/ar-AA1LfYlT?ocid=BingNewsSerp.

Congressional Research Service

13

Offshore Wind Energy Development: Legal Framework

Author Information

Adam Vann

Legislative Attorney

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or

material from a third party, you may need to obtain the permission of the copyright holder if you wish to

copy or otherwise use copyrighted material.

Congressional Research Service

R40175 · VERSION 20 · UPDATED

14