Emerging Technologies: Permitting, Generation and Transmission
Ocean and Tidal Energy
Cherise M. Oram
2009 Environmental and Land Use Law Section Midyear Meeting and Seminar
What are the New Hydrokinetics?
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Ocean wave, current, tidal and in-stream current
– 80+ technologies worldwide
– 20+ being investigated in the United States
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Ocean wave/current:
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West Coast, Hawaii, Alaska, New England
Single and multiple point absorbers
Oscillating water columns, change in pressure drives turbine
Overtopping devices (not favored in US)
Tidal energy:
– Washington, California, Maine, Massachusetts
– Technologies do not rely on impoundments, but operate like submerged
wind turbines
– Pivot or change direction to take advantage of tide coming in and going out
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Industry expects 3 wave (on shore, near shore, off shore), 1 current, 1
tidal technology to prevail
Wave
Yes, it’s really happening
• Two FERC licenses issued
– Hastings, Minnesota project on Mississippi River
– Makah Bay project (surrendered but permitting completed)
• FERC site priority granted for:
– 11 wave projects
– 37 tidal/current projects (mostly Puget Sound, Alaska)
– 126 in-stream projects (Mississippi, Missouri & Ohio rivers)
Benefits
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Clean, domestic, renewable
Close to major coastal cities and inland waterways
Predictable by days (waves) and years (tides)
Could double hydro production from 10% to 20%
national supply
• Conservative estimates:
– 12,500 MW from in-stream (does not include constructed
waterways)
– 10,000-20,000 MW from ocean wave/current (assumed only
15% of energy can be extracted)
Challenges
• Technology
– Survivability: broken
turbines, sunken buoys
– Performance
• Costs
– Estimated at 6 to 16
cents/kWh depending on
technology
• wind has decreased from
40 to 4-6 cents/kWh over
20+ years
• Issues raised
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installation impacts
shipping and navigation
crabbing and fishing
endangered species
marine mammals
migratory birds
electromagnetic field
recreation and public safety
sediment transfer/erosion
Regulatory Environment
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Federal Power Act and/or Outer Continental Shelf Lands Act
Clean Water Act (sections 401 and 404)
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
Aid to Navigation permit
State water right
State removal-fill permit
State lease
State shoreline permit
State Coastal/territorial sea plans
Recent jurisdictional battle on OCS
• OCS => beyond 3 nm; 9 nm off Texas, Florida
• FERC claimed jurisdiction in 2003
• EPAct 2005 granted MMS authority to lease, but
reserved existing authorities
• MMS claimed “exclusive” jurisdiction
• MOU signed this month
• Projects need MMS lease and FERC license on OCS
• Agencies likely to conduct separate NEPA
FERC licensing process
• 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
• 2+ years post-application
– “Pilot Project” process designed to take 6 months post-application
• 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
• Can get exemptions if under 5 MW
• License not required if off-grid and grid power not displaced
Minerals Management Service leases
• Final rule issued yesterday
• Renewable energy leases on Outer Continental Shelf
– wind, wave, current, solar, generation of hydrogen
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Limited lease
Commercial lease
Financial assurance requirements
Per acre and production fees
....STILL WORKING ON HOW TO MARRY FERC and
MMS PROCESSES
Addressing environmental uncertainties
• Information needs:
– Marine mammal impacts
• Entanglement, migration, noise/vibration, haul out?
– Sea birds
• Collisions, nesting?
– Installation
• Alteration of sea bed?
– Effects to shoreline?
– EMF?
– Fishing, crabbing, recreation?
Studies and adaptive management
• Must have sufficient analysis, description of known
impacts or potential impacts to pass muster under
FPA, NEPA, ESA, CWA 401, CZMA, etc.
• Initial projects: robust studies, open-ended adaptive
management
• Use studies and adaptive management to confirm
anticipated impacts and make any necessary
changes to meet existing authorities
• Phase projects to grow as we develop information
Settlement Agreements
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FERC process tool
Resolve all known issues, agree on studies
Create committees or technical teams to adaptively manage
FERC incorporates process as term of project license
Gets projects in the water based on best available data
– Ensures community “buy in”
– Neither developer or agencies are “giving up” anything
• Agencies have no more or less authority
• Developers are not guaranteeing they’ll agree to changes in the
future (preserve right to challenge)
– Fosters communication, requires attempt to work together before
moving to other options
State and local laws
• 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, and state’s authority under CWA and CZMA is broad
Wave and Tidal Energy:
Looking forward
• Technologies are being tested now
• More demonstration projects and small commercial
projects
• Expect phased approach to installing full-scale
commercial projects using adaptive management
• As we learn more about impacts (or lack thereof):
– Developers and stakeholders can agree on more measures,
so conditions can be more prescriptive
– Continue monitoring, but fewer studies
– Everyone gets more certainty
Cherise M. Oram
(206) 386-7622
cmoram@stoel.com