Approval procedure for the construction and operation of installations
The construction and operation of installations in the EEZ for commercial
purposes are subject to approval by the BSH, in compliance with Art. 2 of the
Marine Facilities Ordinance. The BSH’s responsibility is defined in Art. 5,
para. 1.4 in connection with Art. 1, 10a of the Federal Maritime Responsibilities
Act. Before approval can be granted, the regional Waterways and Shipping Directorate
(WSD) must have granted consent and confirmed that the project does not impair
the safety and efficiency of navigation, in accordance with Art. 6 of the Marine
Facilities Ordinance. Article 3 of the Marine Facilities Ordinance contains
the approval requirements and reasons for denying approval. Approval for a wind
farm project will be denied if it is likely to impair the safety and efficiency
of navigation or poses a threat to the marine environment without there being
any suitable measures, either in the form of a time limitation or by imposing
requirements, to prevent or compensate the detrimental effects.
Under Art. 3 of the Marine Facilities Ordinance, an approval is a non-discretionary
administrative act, i.e. in the absence of both of the above reasons for refusal
applicants have a legal claim to approval.
An offshore wind farm approval procedure according to the Marine Facilities
Ordinance consists of several phases:
Upon receipt of a planning application, it is first checked for completeness.
If that is not the case, the applicant has the opportunity to correct and complete
it. At the same time, in the first round of participation, the competent authorities
(including the regional Waterways and Shipping Directorates, mining authority,
Federal Environmental Agency, Federal Agency for Nature Conservation) are informed
about the project application and asked to comment.
After evaluation of the first comments, a larger number of stakeholders takes
part in the second round of participation. It also involves associations (e.g.
nature protection, commercial and small craft shipping, fisheries, wind energy
associations) and the public, which has the opportunity to inspect the planning
documents.
An important aspect of the approval procedure is an early involvement of
the German coastal states, which have to approve the laying of land feeder cables
through the territorial sea for the transport of electricity to onshore substations.
Offshore wind farms normally have to be connected to the onshore grid through
feeder cables. Cables to be laid on the seabed in the territorial sea have to
be approved by the competent German coastal state.
Subsequent to the second round of participation, an application conference
is held during which the applicant has the opportunity to give a presentation
on the project. Conflicting interests and uses are discussed, and the scope
of investigations required to study possible effects on the marine environment
is determined. On the basis of the environmental studies, the applicant prepares
an Environmental Impact Assessment (EIA). A risk analysis dealing with the probability
of vessels colliding with wind farm installations is also mandatory.
After having received the documentation from the applicant, the BSH passes
it on to the competent authorities and associations, asking them to comment.
This is followed by a discussion, during which the comments and information
concerning the marine environmental features to be protected, the subject of
navigational safety, and other interests and uses are discussed with all stakeholders.
Parallel to this, the documents are once more available for public inspection
and comment at the BSH.
Then, the BSH reviews whether the requirements for granting approval have
been met. At the same time, the competent regional Waterways and Shipping Directorate
reviews whether consent can be granted with a view to the safety and efficiency
of navigation.
In case the BSH has received several applications for the same site, Art.
5 of the Marine Facilities Ordinance requires that the application which first
meets all requirements for approval is decided first. An application is considered
to meet all requirements for approval when all documents needed for the decision
are available to the approval authority.
After both authorities have consented to the application and approval has
been granted, a notification of approval is issued. An important part of each
approval granted by the BSH for an offshore wind farm is the incidental provisions,
which are issued in a largely standardised form. They include, among others,
a limitation of the approval to a 25-year period, the requirement to start building
the installations within 2.5 years after receiving the notification of approval,
as well as requirements concerning
- safety
in the construction phase,
- a state-of-the-art
geotechnical study,
- use of state-of-the-art
methods in the construction of wind turbines, prior to start-up,
- presentation
of a safety concept,
- installation
of lights, radar, and the automatic identification system (AIS) on the turbines,
- use
of environmentally compatible materials and non-glare paint,
- foundation
design minimising collision impact,
- noise
reduction during turbine construction and low-noise operation,
-
presentation of a bank guarantee covering the cost of decommissioning.
The decision on the development application is published in the German notices
to mariners (NfS) and in two national papers and is available at the BSH for
public inspection. It is sent to all authorities and associations involved in
the approval procedure.
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