FERC, BOEM marine hydrokinetic guidelines

Two key federal regulators of marine renewable energy production have issued an updated set of guidelines for regulatory aspects of marine and hydrokinetic energy projects.

The document, BOEM / FERC Guidelines on Regulation of Marine and Hydrokinetic Energy Projects on the OCS, is designed to to clarify jurisdictional responsibilities for marine and hydrokinetic projects on the Outer Continental Shelf (OCS) and to foster a cohesive, streamlined process that will help accelerate the development of MHK (i.e., wave, tidal, and ocean current) energy projects.

U.S. Coast Guard icebreaking tug THUNDER BAY at its home berth in Rockland, Maine.

The OCS includes all submerged lands, subsoil, and seabed lying between the seaward extent of the states' jurisdiction (approximately 3 nautical miles from shore, or 3 marine leagues for Texas and the Gulf coast of Florida) and the seaward extent of federal jurisdiction (approximately 200 nautical miles or more from shore).

As described in the guidelines, an MHK project generates electricity from the motion of waves or the unimpounded flow of tides, ocean currents, or inland waterways. (While ocean thermal energy conversion or OTEC projects also fall under the MHK umbrella, the new guidelines focus on ocean wave and ocean current technologies.)

The guidelines cover only MHK projects on the OCS. The guidelines therefore cover neither nearshore MHK projects in state-jurisdictional waters, nor offshore wind projects in federal or state waters. 
 
The guidelines published yesterday fit within the larger context of agreements between previously-sparring federal agencies.  BOEM regulates site leasing, while FERC regulates hydropower.  As marine hydrokinetic technologies improved to the point where developers began proposing commercial projects, tensions and inconsistency developed between how the two agencies regulated and interacted.

This situation led the U.S. Department of the Interior and FERC to execute a Memorandum of Understanding (MOU) in April 2009, recognizing each agency’s respective jurisdiction.  Under the agreement, BOEM has jurisdiction to issue leases on the OCS for MHK projects, while FERC has jurisdiction to issue licenses for these same projects. The agencies felt that the agreement established a cohesive, streamlined process to lease, license and regulate all renewable energy development activities on the OCS, including marine hydrokinetic sources.

FERC and BOEMs’ predecessor Minerals Management Service (MMS) issued the first set of joint guidelines in 2009. As part of MMS’s Guidelines for the Minerals Management Service Renewable Energy Framework, the agencies included an appendix presenting MMS / FERC Guidance on Regulation of Hydrokinetic Energy Projects on the OCS. That document covered procedures for obtaining leases and licenses, municipal preferences, fee structures, and procedures for pursuing hybrid projects (more than one form of renewable energy) or straddle projects (straddling the boundary dividing state waters and the OCS).

Yesterday’s announcement presents a refreshed version of these guidelines. The revised guidelines offer guidance on a number of key regulatory aspects of MHK development process. Since 2009, both FERC and BOEM have changed some of their processes in significant ways – for example, BOEM now allows research leases, and FERC has expedited its pilot project licensure process. The guidelines thus help developers and others in the marine community to understand the legal process for exploration and development of hydrokinetic ocean energy sites.