Offshore wind energy and planned amendments to the Maritime Areas Act
Companies’ increased interest in offshore wind energy makes the legal regulations in this area a subject of interest for the parliament, which is trying to upgrade the regulations. The latest changes are intended to ensure safety during construction and operation of offshore wind farms.
On 2 March 2022, the government submitted a bill to amend the Maritime Safety Act and the Act on Maritime Areas of the Republic of Poland and Maritime Administration (print no. 2071). It contains provisions primarily aimed at ensuring safety during construction and operation of offshore wind farms in the Polish exclusive economic zone of the Baltic Sea and the set of devices used to evacuate power from offshore wind farms to the place of delimitation of the property.
The amendments concerning the Maritime Areas Act of 21 March 1991 focus on securing the possibility to evacuate power from offshore wind farms to the land. To this end, the proposal would introduce modifications regarding permits to erect or use artificial islands, structures and devices.
Definitions of an “offshore wind farm” and a “set of devices for power evacuation” were introduced in the Offshore Act (Offshore Wind Farm Generation Promotion Act of 17 December 2020). Pursuant to Art. 3(13) of the Offshore Act, a “set of devices for power evacuation” should be understood to mean “a separate unit of devices and structures connected or not permanently connected to the ground, including the seabed, serving to evacuate the power from an offshore wind farm from the terminals of the high-voltage side of the transformer or transformers located on the electrical substation or substations located in Polish maritime areas to the place of ownership delimitation specified in the preliminary connection conditions or connection conditions.”
It should be noted that erection or use of artificial islands, structures and devices in Polish maritime areas requires a permit determining their location and specifying the conditions for their use in these areas. Among other things, such a permit is obtained for a set of equipment for power evacuation or its components. Importantly, the location permits for such export facilities and cables are generally issued separately from permits for offshore wind farms. Evacuation of power from offshore wind farms is one of the key elements in making these projects happen, as it ensures that the generated energy will be supplied to the National Power System (KSE) while preserving continuity and reliability of supply.
So far, the practice shows that applications for location permits are submitted not only for locations covered by offshore wind farm permits, but also for areas where the proceedings for granting location permits are still pending and have not been resolved yet. The possibility of obtaining a location permit for a device even if the device does not formally meet the current demand for such infrastructure has proved to be a significant shortcoming of the current regulations, threatening the spatial order of Polish maritime areas. In the future, this could even lead to blocking power evacuation from offshore wind farms due to occupation of a strip of seabed necessary for laying export cables.
More formal requirements…
Pursuant to the proposed amendments, an applicant for a permit in such a case will be required to obtain connection conditions, preliminary connection conditions, or an agreement for connection to the transmission or distribution grid for an offshore wind farm, from which power will be derived by means of a set of devices used for power evacuation or elements thereof. Therefore, the catalogue of formal requirements for a permit to erect artificial islands, structures and devices has been expanded accordingly. A new Art. 27a(2)(9) would be added to the Maritime Areas Act, stating: “The applicant shall also attach the original or certified copies of the preliminary connection conditions, connection conditions, or an agreement or agreements for connection to the transmission or distribution network for an offshore wind farm from which the power will be evacuated by means of a set of devices for power evacuation or components thereof, covered by the application.” This formal requirement would not apply to all permit applications regarding artificial islands, structures and devices or cables and cable arrangements, but only applications concerning a set of devices for power evacuation.
The drafters expect introduction of the new appendix to have a twofold benefit. First, it should ensure appropriate power evacuation capacity. Second, it should ensure rational development of maritime areas by designating places for realistically planned offshore wind farms, for which such devices will be necessary.
…but the difficulties are minor
From the business point of view, this should not prolong the administrative procedure. As the documents mentioned are obtained as part of the procedures related to proper functioning of the wind farm (obligations arising under the Offshore Act), the business should have them at its disposal.
An additional formal requirement would also apply to ongoing administrative proceedings. Applicants would be required to complete the application within 30 days from entry into force of the amendment. As of now, this would mean that all pending proceedings for issuance of location permits for cables (except for export cables from offshore wind farms Baltica 1 and Bałtyk 1) would be discontinued, as this is the sanction for not completing the application for a permit to erect or use artificial islands, structures and devices on time. This is because, apart from the two farms mentioned above, no permits have been granted yet for erection or use of artificial islands, structures and devices for offshore wind farms with respect to other areas relating to the second offshore phase. As a result, the preliminary connection conditions for these projects have not yet been issued. Future wind farm developers would not have to incur the costs of acquiring a cable-laying permit from an entity that previously obtained such a permit.
We should mention that work is also underway on a draft regulation on technical requirements for power evacuation from offshore wind farms. The solutions proposed in the draft regulation are aimed at ensuring that at the stage of construction, operation and decommissioning, the equipment used for evacuation of power from offshore wind farms will meet requirements for safety of the structure and construction (strength, bearing capacity and stability), fire safety, operational safety, environmental protection and operational conditions appropriate for the intended use of various types of equipment and structures or installations forming part of the offshore wind farm.
These planned legal solutions should not constitute an excessive burden for businesses planning to implement offshore wind farm projects and enable their proper operation, as no entirely new documentation is introduced that would have to be obtained specifically for this circumstance. Therefore, enclosing the indicated connection conditions or connection agreements with an application for a location permit for power generating facilities, which in any case are necessary for construction of an offshore wind farm, should not pose a barrier discouraging private entities from investing in Polish maritime areas.
Dr Adrianna Ogonowska, attorney-at-law, Environment practice, Wardyński & Partners
