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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

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Siting Ocean and Tidal Energy Projects


Oregon Law Institute

Going Green: Advising Clients in the New World of Sustainability

April 25, 2008

new hydro technologies
New Hydro Technologies


Ocean Current

Tidal Current


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:

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

Regulatory Issues
federal energy regulatory commission ferc
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
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 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
  • One license (Pilot Project) issued for Finavera’s Makah Bay Wave Project
ferc preliminary permits
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
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
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
    • 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
Other Relevant Federal/Tribal Stakeholders
  • 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
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
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
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
Local and Non-governmental Stakeholders
  • 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
Resolving Uncertainties
  • Initial projects: robust studies, adaptive management
  • Settlement agreements are tool in FERC process
    • 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
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