Where the Wind Blows: Offshore Wind Farm Site Considerations

Introduction

The decision of where to develop an offshore wind farm (Project) is complex and governed by many factors. The location of Projects in the sea distinguishes this form of renewable energy from other sources because the Commonwealth of Australia does not have exclusive sovereignty over the use and control of oceans.

In this article, we consider the critical question of “where” to construct a Project and how domestic (state and Commonwealth) legislation as well as public international law can influence Project location.

Who owns the sea?

Maritime boundaries are complex and governed by a mix of domestic and international legal considerations. Maritime boundaries include:

The Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) introduced the legal framework for Projects in the Commonwealth offshore area. The Commonwealth offshore area includes the territory, seabed and subsoil beneath the territorial sea and Australia’s EEZ and excludes Coastal waters¹. The provisions of the OEI Act must be applied with existing legislation relating to the sea (for example, Seas and Submerged Lands Act 1973 (Cth) and the Coastal Waters (State Powers) Act 1980 (Cth)) and is also subject to Australia’s obligations under international law both within and outside of the Commonwealth offshore area.

Location & Size of Projects

Projects can be located up to 200 nautical miles from the shoreline. However, in practice, Project positioning is governed by:

1. technology: for example, the decision whether offshore wind should be fixed and floating (see more here);
2. proximity to natural resources: including high and consistent wind speeds and suitable water depths;
3. proximity to end users: including proximity to urban areas as well as existing electricity and maritime infrastructure (including ports);
4. proximity to existing sea users: including shipping routes and navigation, communication and hydrocarbon cabling, the maritime industry (such as fishing, aquaculture and tourism), coastal towns (frequently concerned about visual amenity)
5. environmental impact: including impact of maritime species².

As a result of these factors, Projects are presently best placed between 5km and 35km from the coastline. Under the Offshore Electricity Infrastructure Regulations³ up to 700 km² (approximately the land area of Singapore) can be licensed for the development of a Project.

The Australian Experience

The OEI Act empowers the Commonwealth to declare areas which are suitable for offshore infrastructure activities. To date, the Commonwealth has flagged its intention to declare the following offshore wind priority regions:

Source: Ecogeneration: Australian offshore wind farms get green light in landmark announcement¹⁰

What are the Australia’s obligations under international law in respect of Projects?

While wind is a non-living, non-extractive, renewable, and non-exhaustible resource, the conversion of wind into an energy resource has a unique spatial footprint which affects the water column, seabed, subsoil, and even the airspace above. This characteristic has significant implications the exercise of Australia’s sovereign rights in its territorial waters and EEZ.

Australia’s obligations under international law, particularly within the framework of the United Nations Convention on the Law of the Sea (UNCLOS) will impact Projects (particularly project location and design).

While Australia has sovereign rights over its EEZ, it must have due regard and consider the rights and duties of other countries¹¹, and other countries must do the same in respect of Australia’s rights¹². This general principle under UNCLOS is designed to balance the rights and interests of coastal countries with those of other countries, Projects introduce unique challenges and considerations to the application of these principles.

For instance, the following UNCLOS obligations may having bearing on a Project’s design and location:

• a coastal country must not unreasonably obstruct or interfere with a foreign vessel’s right of innocent passage or sea approaches and shipping routes.¹³ The establishment of safety zones around Projects, the potential increase in maritime traffic resulting from Project activities, and the specific placement of the Projects themselves all have the potential to impact this obligation. The extent and nature of such interference will be contingent upon Project design and geopolitical factors which will evolve as the industry matures and for which businesses must be prepared;
• freedom of overflight, the right to lay submarine cables and pipelines, and the freedom of navigation.¹⁴ This obligation has national security implications which must be considered in Project risk analyses; and
• the obligation to protect and preserve the marine environment,¹⁵ and take measures to minimise pollution from the installation of infrastructure used in the exploitation of natural resources or operating in the marine environment.¹⁶

It is evident from even a cursory evaluation of these obligations that a Project’s location and design have complex, far reaching implications.

Conclusion

Understanding the intricacies of the “where” aspect of Projects is essential for businesses seeking success in this industry that involves a careful of both domestic and international regulatory requirements and obligations to enable informed decision-making, risk mitigation, and collaborative ventures.

The Hamilton Locke team advises across the energy project life cycle – from project development, grid connection, financing, and construction, including the buying and selling of development and operating projects. For more information, please contact Matt Baumgurtel.

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²Camille Goodman (2023), ‘Harnessing the Wind Down Under: Applying the UNCLOS Framework to the Regulation of Offshore Wind by Australia and New Zealand, Ocean Development & International Law’.

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⁴The Hon Chris Bowen MP, Minister for Climate Change and Energy, Joint media release: Unlocking the power of offshore wind in Gippsland

⁵The Hon Chris Bowen MP, Minister for Climate Change and Energy, Area in the Pacific Ocean off the Hunter declared suitable for offshore wind

⁶The Hon Chris Bowen MP, Minister for Climate Change and Energy, Offshore wind industry to power regional jobs across the Southern Ocean region

⁷The Hon Chris Bowen MP, Minister for Climate Change and Energy, Consultation Opens for Offshore Wind Zone in the Illawarra, Driving Regional Jobs and Investment

⁸The Hon Chris Bowen MP, Minister for Climate Change and Energy, Speech to Asia Pacific Offshore Wind and Green Hydrogen Summit.

⁹The Hon Chris Bowen MP, Minister for Climate Change and Energy, Speech to Asia Pacific Offshore Wind and Green Hydrogen Summit.

¹⁰Ecogeneration, Australian offshore wind farms get green light in landmark announcement

¹¹Article 56(1)a

¹²Article 58(3)

¹³Articles 17 and 45

¹⁴Article 58(1)

¹⁵Article 192

¹⁶Article 194(3)