Siting Ocean and Tidal Energy Projects
Cherise M. Oram
STOEL RIVES LLP
Oregon Law Institute
Going Green: Advising Clients in the New World of Sustainability
April 25, 2008
New Hydro Technologies
Wave
Ocean Current
Tidal Current
In-Stream
Could double U.S. hydropower production from just
below 10% to close to 20% of national supply.
– Hydroelectric Infrastructure Technical Conference, Docket No. AD06-13-000
(Dec. 6, 2006), transcript 12; 22 (testimony of George Hagerman).
Regulatory Issues
• Issues raised by ocean and
tidal project siting:
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installation impacts
shipping and navigation
crabbing and fishing
endangered species
marine mammals
migratory birds
electromagnetic field
recreation and public
safety
• Envt’l Laws Implicated:
– Clean Water Act
– Endangered Species Act
– Magnuson-Stevens Fishery
Conservation and Management Act
– Marine Mammal Protection Act
– Coastal Zone Management Act
– National Historic Preservation Act
– Migratory Bird Treaty Act
– National Environmental Policy Act
– Oregon Revised Statute (“ORS”)
chapter 543 (water right)
– ORS 196.805 (Removal-Fill Permit)
– ORS 274.040 (Ocean Energy Facility
Lease)
– ORS 390 (Ocean Shore Permit)
– Oregon Coastal Management Plan
– Oregon Territorial Sea Plan
Federal Energy Regulatory
Commission (FERC)
• Jurisdiction under Federal Power Act (FPA)
• License required:
– navigable waters
– connected to grid
• License not required:
– experimental technology
– power not transmitted into, and does not displace
power from, national energy grid.
– Must obtain other necessary federal and states
approvals
FERC Licensing Process
• Extensive and complicated; framework for all other
environmental approvals
• 3+ years of pre-application studies, consultations
– Must perform reasonable studies requested by federal and
state agencies, other stakeholders
• Post-application, 2+ years to license
– “Pilot Project” process designed to take 6 months postapplication
• For demonstration projects up to 5 MW
• Timing doesn’t account for other agency permitting
• Up to 50-year licenses; 5 year Pilot Project licenses
• One license (Pilot Project) issued for Finavera’s
Makah Bay Wave Project
FERC Preliminary Permits
• Optional, three-year permits
• Maintain priority for a site
• Use time to determine project feasibility,
consult with stakeholders, perform baseline
studies, develop license application.
• 113 issued (7 wave, 8 ocean current, 35 tidal
current, 63 in-river)
• 77 pending
Minerals Management Service
(MMS) (Dep’t of Interior)
• Leases on outer continental shelf (OCS)
• OCS = beyond 3 nm off of coastal
shorelines; 9 nm off Texas, Florida
• Claims jurisdiction over “alternative
energy”
– Wind, wave, solar, underwater current,
generation of hydrogen
MMS’s “Alternative Energy and
Alternative Use” Program
• AEAU program will govern leasing
• Notice of Proposed Rulemaking (NOPR) due later
this year
• Hopes to complete rulemaking by late 2008
• MMS Interim Policy: identified five priority testing
sites
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New Jersey, Delaware, Georgia, Florida and California.
Includes wind, ocean current, wave
Temporary leases for data collection, technology testing
No commercial energy production
If competitive interest, will hold competitive sale
FERC vs. MMS
• EPAct 2005 granted MMS authority to
lease, but didn’t change other federal
law (ie., FPA).
• Attempt at MOU recently suspended
• Projects need MMS lease and FERC
license
• Preliminary permit or license from FERC
does not guarantee winning lease from
MMS in competitive bidding process
Other Relevant Federal/Tribal
Stakeholders
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U.S. Army Corps of Engineers
U.S. Coast Guard
National Marine Fisheries Service
U.S. Fish and Wildlife Service
Federal land owner agencies
(USFS, NPS, etc.)
• Affected Tribes
Relevant State Agencies
• State agency administering Coastal Zone
Management Act (“CZMA”)
• State agency administering Clean Water Act
(“CWA”) section 401 water quality
• certification
• State lands manager
• State fish and wildlife agency
• State water resources manager
• State and Tribal historic preservation offices
• State energy facility siting council
State and Local Law
• FPA preempts state and local laws
concerning hydroelectric licensing
• Exceptions
– proprietary water rights
– state approvals required by federal law
(e.g. 401 Certification; CZMA Concurrence)
• FERC may require compliance with state and
local requirements that do not make
compliance with FERC’s license impossible
or unduly difficult.
• Despite preemption, FERC must consider
state and local concerns.
FERC & Oregon MOU
• Effective March 26, 2008
• Covers ocean energy development in Oregon’s
Territorial Sea
• Agree to coordinate federal and state processes to
expedite licensing
• FERC will consider whether projects are consistent
with state Territorial Sea Plan
• Oregon intends to revise Territorial Sea Plan to
designate (limit) areas for ocean energy development
• FERC interested in reaching MOUs with other states
Local and Non-governmental
Stakeholders
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County commissions
Local governments
Ports
Non-governmental interest groups (environmental, fishing,
recreational)
• Public utility districts and Investor-owned utilities
• Private landowners
• Cable committee
 22 federal, state, tribal, local, NGO
stakeholders or categories of stakeholders:
Begin consultation early!
Resolving Uncertainties
• Initial projects: robust studies, adaptive management
• Settlement agreements are tool in FERC process
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resolve all known issues
agree on studies
create committees or technical teams to adaptively manage
FERC incorporates as conditions of project license
• Must have sufficient analysis, description of known impacts or
potential impacts, rationale for studies, to pass muster under
FPA, NEPA, ESA, CWA 401, CZMA, etc.
• Rely on best available data, best professional judgment,
adaptive management to address uncertainties.
Looking Forward
• All components of regulatory framework are
still developing
• Well intended policies may complicate rather
than streamline
• Leading project proponents can help shape
regulatory policies, ensure they fit industry
• Goal is to move toward commercially viable
(long term) projects
Cherise M. Oram
(206) 386-7622
cmoram@stoel.com