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Regulation of Marine Renewable Energy Development in the
United StatesA 15 Minute Encapsulation
_____________________
Carolyn Elefant, Esq.
Ocean Renewable Energy Coalition
202-297-6100
Carolyn.elefant@fercfights.com
Global Marine Renewable Energy Conference, New York City
April 17, 2008
Welcome to the United States!
For marine renewables, the U.S. is a land of enormous opportunity…
…and enormously complicated regulation!
This talk gives a snapshot of regulation of marine renewables in the U.S.
My challenge is to cover the topic within fifteen minutes.
One reason that regulation is so complicated is because of dual state and national interests.
O OTEC
• NOAA has license authority under OTEC Act of 1980.
• NOAA withdrew regulations in 1996 since no company ever filed an application.
O Offshore Wind
• MMS empowered to issue wind leases on OCS per EPAct 2005.
• States approve projects on state submerged lands and portions of OCS projects that cross state lands.
OWave/Tidal
• 0-3 miles - FERC, under Part I, FPA
• 3-12 miles - MMS and FERC? Or MMS or FERC?
• 12-200 miles - MMS
OFERC/MMS: Key Differences
• FERC – Authority over entire project,
state and federal pieces– License does not confer
property interests– Rules adapted from hydro– Permit gives priority– Developer selects sites
• MMS– Authority stops at OCS limits– Lease confers property interest– Developer can nominate sites
but MMS may open for bid – Still developing rules– No priority rights in proposed
test lease rules– Programmatic approach
Different
FERC Approvals
• Preliminary Permit– 3 years, site study only, priority for
license• Verdant Exemption
– 18 month exempt to test facility• Pilot Project License
– 5 year, <5 MW, 1 year app. process, must decommission
• Conditional License– License but no construction until all
permits received• License
– 30-50 year term• Exemption
– Minimal FERC oversight after issuance
Different Types of MMS Leases
• Interim/Test Lease – For data collection or testing
facilities for alternative energy technologies on OCS
– As proposed, no priority rights– As proposed, competitive
process– NOPR, request for nominations
and draft proposed lease issued, awaiting final rule
• Longer Term Lease– ANOPR in Feb. 06, policy
under development– Programmatic EIS prepared
and issued
Statute/ Authorization
Prelim. Pe rmit
Ve rdan t Exemp t.
Pilot Lice ns e
Con ditio nal Lice ns e
Lice ns e MMS Le as es
Co as tal Zon e Manag eme nt Act (s tate)
O
P
P
P
P
P
Clean Water Act, sec. 404 (Corps.)*
O
P
P
P
P
No, not on OCS
Clean Water Act, sec. 401 (state)*
O
Technology dependent
Technology dependent
Technology dependent
Technology dependent
No, not on OCS
Rivers & Harbors Act Sec. 10 (Corps.)
O
P
O
O
O
P
NEPA (authorizing fed. Agency)
O
P
P
P
P
P
Endangered Species Act (DOI)
O
P
P
P
P
P
Various fed. Fish/migratory mammal laws
O
P
P
P
P
P
State and local envir. requirements
O
P
P
P
P
Not, not OCS.
MMS lease MMS says no PP on OCS
Not clear if MMS will allow VE on OCS
Yes, if on OCS
Yes, if on OCS
Yes, if on OCS
N/A
State land lease O
P
P
P
P O
P - Required O - Not required
Summary Chart of
State & Fed.RegulationsApplicable
To FERC andMMS Author-
izations
The puzzle for the U.S. is to regulate in a way that helps wave/tidal to “commercialize without compromise.”
What are the regulatory options for marine renewables?
One stop shopping centralizes the process, but won’t work unless agencies will cede control.
Streamlining speeds demos into the water, but developers may not use them without funding or option for build out.
Programmatic plan/zoning can give certainty…but do we have
enough data now to draw “lines in the sand?”
Adaptive management allows for data gathering and staged
growth…but what to do if impacts can’t be addressed?
Let’s use these next few days to create regulatory options that point marine renewables in the direction of success.
• It is time for Marine
Renewables to “seas” the day!
• For additional information, visit www.oceanrenewable.com