BOEM proposes Renewable Energy Modernization Rule for offshore wind

The U.S. Department of Interior's Bureau of Ocean Energy Management (BOEM) has announced a proposed rulemaking to amend its regulations governing offshore wind and other clean energy development on the U.S. Outer Continental Shelf (OCS). BOEM describes its proposed rule as "a major modernization of the regulations", reflecting lessons learned from the past 13 years. If finally adopted, BOEM projects that its Renewable Energy Modernization Rule would save the renewable energy industry $1 billion over 20 years, by reshaping the way the U.S. federal government leases sites on the OCS for offshore wind development.

The Energy Policy Act of 2005 authorized BOEM's predecessor, the Minerals Management Service (MMS), to issue leases, easements, and rights of way to allow for renewable energy development on the OCS. MMS first promulgated regulations governing renewable energy development on the OCS in 2009. In the ensuing years, the agency was restructured several times; since then, BOEM has conducted 11 auctions and issued 27 active commercial leases under its regulations implementing the OCS Lands Act.

According to BOEM, its accumulated experience and industry feedback have enabled the agency to identify "opportunities to modernize its regulations to facilitate the development of offshore wind energy resources to meet U.S. climate and renewable energy objectives." BOEM's proposed Renewable Energy Modernization Rule, issued on January 12, 2023, contains reforms including proposals for incremental funding of decommissioning accounts; more flexible geophysical and geotechnical survey submission requirements; streamlined approval of meteorological (met) buoys; revised project verification procedures; reform of BOEM’s renewable energy auction process; and greater clarity regarding safety requirements. 

In its notice of proposed rulemaking, BOEM asserts:

This proposed rule would facilitate the development of OCS renewable energy and would promote U.S. climate and renewable energy objectives in a safe and environmentally sound manner while providing a fair return to the U.S. taxpayer. These important goals would be accomplished by modernizing regulations, streamlining overly complex and burdensome processes, clarifying ambiguous provisions, enhancing compliance provisions, and correcting technical errors and inconsistencies. Through these changes, the Department aims to reduce administrative burdens for both developers and the Department’s staff, reduce developer costs and uncertainty, and introduce greater regulatory flexibility in a rapidly changing industry to foster the supply of OCS renewable energy to meet increasing demand, while maintaining environmental safeguards. 

These updates are necessary to ensure a durable and appropriate process is in place to advance renewable energy on the OCS.

BOEM's proposed rule contains eight major components, categorized under the following headings:

1. Eliminating unnecessary requirements for the deployment of met buoys.
2. Increasing survey flexibility.
3. Improving the project design and installation verification process.
4. Establishing a Public Renewable Energy Leasing Schedule.
5. Reforming BOEM's renewable energy auction regulations.
6. Tailoring financial assurance requirements and instruments.
7. Clarifying safety management system regulations.
8. Revising other provisions and making technical corrections.

Comments will be due 60 days after the notice's publication in the Federal Register.

Feds reap $405 million offshore wind bidding bonanza

In what the Trump administration has called a "bidding bonanza", the latest federal auction of rights to lease ocean space for offshore wind development has brought $405 million in winning bids.

On December 14, 2018, the federal Bureau of Ocean Energy Management conducted its eighth competitive lease auction for renewable energy in federal waters. At stake were the rights to lease three areas totaling about 390,000 acres over the Outer Continental Shelf offshore Massachusetts.
The three lease areas in question are located 19.8 nautical miles from Martha’s Vineyard, 16.7 nautical miles from Nantucket, and 44.5 nautical miles from Block Island. These sites were previously offered for leasing through a federal auction in 2015, but went unsold at that time.

Eleven companies participated in the auction by submitting bids, out of a total of nineteen companies that had been deemed qualified to bid. The three provisional winners were Equinor Wind US, LLC  and Mayflower Wind Energy, LLC (each bidding $135 million) and Vineyard Wind, LLC (bidding $135.1 million). These amounts are significantly higher than any previous federal auction for offshore wind sites has yielded; the previous record winning bid was just over $42 million in December 2016 for a lease area offshore New York.

After the Department of Justice and Federal Trade Commission perform an anti-competitiveness review of the auction results, each winning bidder will be required to pay the winning bid amount to the Bureau and to post financial assurance. In exchange, each winning bidder will receive a lease with a preliminary term of one year, during which the lessee may submit a Site Assessment Plan (SAP) to BOEM for approval. Under the regulations governing the federal leasing process, the SAP describes the buoys or other facilities a lessee plans to deploy to assess the lease area's wind resources and ocean conditions. After BOEM approves a lessee's SAP, the lessee may submit a detailed Construction and Operations Plan (COP) to BOEM within four and a half years for approval. When presented with a COP, BOEM will conduct an environmental review. Finally, after BOEM approves any COP, the lessee will have a 33-year term to construct and operate the project.

Federal auction set for Massachusetts offshore wind leases

The federal agency responsible for managing ocean energy development on the Outer Continental Shelf has scheduled an auction for about 390,000 acres offshore Massachusetts, to be held on December 13, 2018.

Under federal law, the U.S. Bureau of Ocean Energy Management is responsible for conducting auctions to lease parcels of federal waters for offshore wind energy development.

On October 17, Secretary of the Interior Ryan Zinke announced that BOEM will hold its next offshore wind auction in December. According to the Final Sale Notice published in the Federal Register on October 19, the agency will hold its Atlantic Wind Lease Sale 4A, covering 388,569 acres offshore Massachusetts. The sale will cover three separate leases, located within an area previously offered but unsold in 2015.

BOEM map of the proposed lease areas available through the December 2018 auction.

Nineteen companies have qualified to participate as bidders in the lease sale:

• Avangrid Renewables, LLC
• Camellia Wind Energy LLC
• CI III Blue Cloud Wind Energy II LLC
• Cobra Industrial Services, Inc.
• Deepwater Wind New England, LLC
• East Wind LLC
• EC&R Development, LLC
• EDF Renewables Development, Inc.
• EDPR Offshore North America LLC
• Enbridge Holdings (Green Energy) L.L.C.
• Innogy US Renewable Projects LLC
• Mayflower Wind Energy LLC 
• Northeast Wind Energy LLC 
• Northland Power America Inc .
• PNE WIND USA, Inc.
• Equinor Wind US LLC
• Vineyard Wind LLC
• Wind Future LLC
• wpd offshore Alpha LLC

According to BOEM, if fully developed, the areas available for leasing could support about 4.1 gigawatts of commercial wind generation.

US Atlantic offshore wind leasing plan up for comment

U.S. ocean energy regulators have extended a deadline for public comment on a proposed path forward for offshore renewable energy leasing on the Atlantic Outer Continental Shelf. The Bureau of Ocean Energy Management's "Proposed Path Forward for Future Offshore Renewable Energy Leasing on the Atlantic Outer Continental Shelf" lists factors the agency proposes to consider in identifying areas for possible future offshore wind leasing.

BOEM is an agency of the Department of the Interior, charged with advancing the responsible development of offshore energy and marine mineral resources covering over 1.7 billion acres of the Outer Continental Shelf. As of May 2018, BOEM has held seven competitive lease sales, yielding over $68 million in high bids for almost 1.4 million acres in federal waters. BOEM now has 13 offshore wind energy leases, capable of supporting 17 gigawatts of generating capacity, covering every state from Massachusetts to North Carolina (Cape Cod to Cape Hatteras).

On April 6, 2018, BOEM published a Request for Feedback in the Federal Register, presenting the agency's "Proposed Path Forward for Future Offshore Renewable Energy Leasing on the Atlantic Outer Continental Shelf." In that notice, the agency said it is conducting a high-level assessment of all waters offshore the United States Atlantic Coast for potential future offshore wind lease locations, and proposes to rely on specific factors to help it assess which geographic areas along the Atlantic are the most likely to have highest potential for successful offshore wind development in the next three to five years.

BOEM said its intent in publishing the Notice was "to start a conversation surrounding its approach to future renewable energy leasing on the Atlantic OCS." Its proposed factors for identifying offshore wind forecast areas include exclusionary factors (which create "no-go" areas for offshore wind) and positive factors (increasing the likelihood that location would fall within a forecast area). Under BOEM's proposal, exclusionary factors would include areas prohibited by the Outer Continental Shelf Lands Act for leasing, Department of Defense conflict areas, and charted marine vessel traffic routes. Positive factors for an areas include that it has not previously been removed, is greater than 10 nautical miles from shore, is shallower than 60 meters in depth, is adjacent to states with offshore wind economic incentives or with an interest in identifying additional lease areas, or where industry has expressed interest.

Comments on BOEM's proposed path forward for offshore renewable energy leasing on the Atlantic were slated to be due on May 21, but on May 18, 2018, the Bureau of Ocean Energy Management announced that it would accept comments through July 5, 2018.

BOEM says this "Atlantic assessment is intended to inform future area identification processes, not replace them" -- so after reviewing comments it receives, BOEM will coordinate with its intergovernmental renewable energy task forces and conduct additional stakeholder outreach.

BOEM proposes Massachusetts offshore wind lease auction

U.S. ocean energy regulators have announced the proposed lease sale of two new areas offshore Massachusetts for commercial wind energy leasing, totaling about 390,000 acres.

On April 6, 2018, U.S. Secretary of the Interior Ryan Zinke announced that the Bureau of Ocean Energy Management would publish a Proposed Sale Notice for Commercial Leasing for Wind Power on the Outer Continental Shelf Offshore Massachusetts on April 11, 2018.

Through that Proposed Sale Notice, BOEM described its plans to conduct Atlantic Wind Lease Sale 4A. That auction would offer two lease areas offshore Massachusetts for potential commercial wind energy development: Lease OCS-A 0502 consisting of 248,015 acres, and Lease OCS-A 0503 consisting of 140,554 acres. These lease areas were previously offered in 2015, but were not sold.

The Proposed Sale Notice solicits reaffirmations of continued interest from previously qualified prospective bidders -- including 11 entities that qualified to participate in the 2015 Massachusetts lease sale. It also solicits qualification packages from any prospective bidders that BOEM has not previously qualified for a Massachusetts lease sale. The proposal also comes with a 60-day public comment period.

Following the public comment period, if BOEM proceeds with the Massachusetts lease auction, the agency will eventually publish a Final Sale Notice announcing the time and date of the lease sale. 

To date, the Bureau of Ocean Energy Management has awarded 13 commercial offshore wind leases, including sites off every state from Massachusetts to North Carolina.

US proposes offshore oil and gas leasing expansion

The Trump administration is taking steps that could ultimately lead to a significant expansion of U.S. outer continental shelf acreage available for oil and gas leasing.

Under federal law, the U.S. Bureau of Ocean Energy Management is charged with administering site leasing for energy development on the outer continental shelf. The Outer Continental Shelf Lands Act requires the Secretary of the Interior, through BOEM, to develop a five-year national plan for oil and gas sales in federal waters. The law requires the Secretary to balance criteria including environmental impacts, energy needs and resources, and adverse effects on the coastal zone.

On January 4, 2018, Secretary of the Interior Ryan Zinke announced a new Draft Proposed Program. He described its release as "an early step in a multi-year process to develop a final National OCS Program for 2019-2024," and as consistent with an April 2017 Executive Order implementing an "America-First Offshore Energy Strategy."

The Draft Proposed Program includes 47 potential lease sales -- the largest number of lease sales ever proposed for the National OCS Program’s 5-year lease schedule.  The plan includes 19 sales off Alaska, 7 in the Pacific Region, 12 in the Gulf of Mexico, and 9 in the Atlantic Region. Some of these areas have not seen leases sold in decades; for example, there have been no sales in the Atlantic since 1983 and there are no existing leases.

By contrast, the draft program includes 8 Atlantic lease sales between 2020 and 2024, covering federal waters offshore Maine, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina, Georgia, and Florida. The Pacific leases would similarly be the first sold in that region since 1984.

According to the press release announcing the draft's release, "Inclusion of an area in the DPP is not a final indication that it will be included in the approved Program or offered in a lease sale, because many decision points still remain. By proposing to open these areas for consideration, the Secretary ensures that he will receive public input and analysis on all of the available OCS to better inform future decisions on the National OCS Program."

Even if an area is offered in a lease sale, it may not draw commercial interest; even if leased, an area might not actually be used for exploration and production. But the draft plan significantly expands the acreage that would be available for leasing -- according to the Secretary, "the current program puts 94 percent of the OCS off limits," while the proposed program "proposes to make over 90 percent of the total OCS acreage and more than 98 percent of undiscovered, technically recoverable oil and gas resources in federal offshore areas available to consider for future exploration and development."

BOEM has solicited public comment on the draft plan, which will inform several further rounds of proposals and comment, before a Proposed Final Program (PFP) is considered. In the meantime, until a new program is finalized and adopted, the present 2017-2022 Five Year Program remains in effect.

US considers Arctic offshore oil exploration

U.S. regulators are evaluating an application by a company seeking to explore for oil in the Arctic.

On June 12, the federal Bureau of Ocean Energy Management or BOEM announced that it had deemed Eni US Operating Co.'s exploration plan (or EP) to be submitted, and invited public comment on the plan. The company is a subsidiary of the Italian gas and oil company Eni S.p.A.

Under federal law, an Exploration Plan describes all exploration activities planned by the operator for a specific lease or leases, including information on locations, timing, drilling processes, and actions to be taken to meet safety and environmental standards and to protect access to subsistence resources. 

According to its Exploration Plan for the Nikaitchuq North Project dated March 2017, Eni proposes to drill into submerged lands on the Outer Continental Shelf beneath the Beaufort Sea, from its existing Spy Island drillsite which is located in Alaska state-jurisdictional waters.  Eni has secured federal leases for the "Alaska – Harrison Bay Block 6423 Unit".

BOEM's decision to deem the Exploration Plan as submitted triggers various deadlines:

• BOEM has opened a 10-day public comment window to provide information on issues that should be examined in the application's Environmental Assessment.  This window closes at midnight Eastern Time on Thursday, June 22.
• BOEM opened a 21-day public comment window for comments on the Exploration Plan itself.  This window closes at midnight Eastern Time on Monday, July 3.
• BOEM has 30 days within which it must evaluate the Exploration Plan, including a site-specific Environmental Assessment under the National Environmental Policy Act. By the end of the 30-day period BOEM may approve the EP, require modifications to the EP, or disapprove the EP.

While the Obama administration placed an indefinite hold on further leasing in much of the Beaufort Sea and other U.S. Arctic waters in December 2016, the Trump administration has expressed interest in reversing this decision in favor of expanded U.S. Arctic oil exploration and production.  The Arctic Ocean is home to significant fossil fuel resources, but environmental and logistical concerns have recently proved challenging. 

NY blueprint for offshore wind master plan

A New York state energy office has released its Blueprint for the New York State Offshore Wind Master Plan.

The New York State Energy Research and Development Authority, known as NYSERDA, promotes energy efficiency and the use of renewable energy sources.  It mission is to advance innovative energy solutions in ways that improve New York's economy and environment.

New York recently adopted a Clean Energy Standard, which will require that 50% of New York State’s electricity come from renewable resources by 2030.  NYSERDA has described offshore wind as playing "a critical role in turning this aggressive goal into a reality."  NYSERDA has been tasked with leading the state's development of a master plan for New York offshore wind development.

On September 15, 2016, NYSERDA released its Blueprint for the New York State Offshore Wind Master Plan.  The Blueprint presents NYSERDA’s vision of the process, steps, and timeline to develop the master plan.  While the Master Plan's release is scheduled for 2017, NYSERDA noted that releasing an initial Blueprint serves to outline New York State’s comprehensive offshore wind strategy and advance the State’s Reforming the Energy Vision (REV) strategy to build a cleaner, more resilient, and affordable energy system for all New Yorkers.

NYSERDA has also expressed interest in bidding in an auction to be held by the U.S. Bureau of Ocean Energy Management, for the right to lease offshore wind development sites in federal waters over the Outer Continental Shelf.  The 81,000-acre lease area is located south of Long Island, off the Rockaway Peninsula.  BOEM is expected to hold the lease sale later this year.

Vineyard Wind offshore project changes hands

Danish fund management company Copenhagen Infrastructure Partners has acquired Offshore MW LLC, the holder of an offshore wind energy lease issued by the U.S. Bureau of Ocean Energy Management over an area south of Massachusetts.

Copenhagen Infrastructure Partners describes itself as a fund management company founded in 2012. On August 25, 2016, CIP announced that on behalf of its fund Copenhagen Infrastructure II it had acquired 100% of Offshore MW LLC.

Acquired company Offshore MW LLC is developing the Vineyard Wind project over the Outer Continental Shelf south of Massachusetts.  The site is part of the Massachusetts Wind Energy Area originally designated by BOEM for leasing in 2012.  Offshore MW won the lease rights through a competitive lease auction held by the Bureau of Ocean Energy Management on January 29, 2015, in which it submitted the winning bid for Lease Area OCS-A 0501.  That lease area covers 166,886 acres, or roughly 260 square miles of sea space in federal waters off Massachusetts. 

According to CIP, it will continue with the Massachusetts project's development.  The Vineyard Wind project could receive a boost from recently enacted Massachusetts legislation that will require utilities to purchase about 1,600 megawatts worth of offshore wind energy by 2027.  That law, known as H. 4568, "An Act to promote energy diversity," requires electric distribution companies to issue an initial joint competitive solicitation for offshore wind proposals by June 30, 2017.

Offshore wind in Massachusetts energy bill

The Massachusetts legislature has enacted an energy bill that will require utilities to purchase offshore wind energy by 2027.  The legislation, known as H. 4568, "An Act to promote energy diversity," has been laid before Governor Charlie Baker for signature.

Earlier this session, the Massachusetts House and Senate had passed two different bills calling for renewable energy procurement.  A conference committee reported out the final bill, H. 4568, on July 31.  Through the newly enacted law, the Massachusetts legislature has added a new program of offshore wind energy procurement. 

The final enacted bill adds a new section 83C to the state's 2008 Green Communities Act.  Among other provisions, section 83C provides, "In order to facilitate the financing of offshore wind energy generation resources in the commonwealth, not later than June 30, 2017, every distribution company shall jointly and competitively solicit proposals for offshore wind energy generation; and, provided, that reasonable proposals have been received, shall enter into cost-effective long-term contracts."

Much of the solicitation and contracting process will occur pursuant to regulations yet to be promulgated by the Department of Public Utilities.  The law provides a framework for developing and approving the competitive bidding process, and requires the schedule to "ensure that the distribution companies enter into cost-effective long-term contracts for offshore wind energy generation equal to approximately 1,600 megawatts of aggregate nameplate capacity not later than June 30, 2027."  Individual solicitations must be seek proposals for 400 megawatts or more, and may be conducted jointly with other states.

Proposed long-term contracts are subject to the review and approval of the Department of Public Utilities.  The law requires the department of public utilities to weigh the potential costs and benefits of the proposed long-term contract, and directs it to approve a proposed long-term contract "if the department finds that the proposed contract is a cost-effective mechanism for procuring reliable renewable energy on a long-term basis," taking into account factors like reliability, mitigation of price volatility, cost-effectiveness, mitigation of environmental impacts, and economic development.

The law requires the implementing regulations to be adopted by the Department of Public Utilities to "provide for an annual remuneration for the contracting distribution company up to 2.75 per cent of the annual payments under the contract to compensate the company for accepting the financial obligation of the long-term contract."  It also entitles distribution companies to cost recovery of payments made under an approved long-term contract.  Utilities may elect to to use any energy purchased under such contracts for sale to its customers and retain renewable energy certificates for their use, or may sell the energy and RECs into the market.  Any proceeds from such market re-sales will be netted against the cost of contract payments, resulting in a credit or charge to all distribution customers through a uniform fully reconciling annual factor in distribution rates.

The law also provides a variety of "outs" or circumstances under which contracts might not result, such as if a "proposal’s terms and conditions would require the contract obligation to place an unreasonable burden" on a distribution company’s balance sheet.

Notably, the law's definitions of “Offshore wind developer” and “Offshore wind energy generation” place a variety of restrictions on projects eligible for contracting.  The definitions effectively require that projects be located on the Outer Continental Shelf, in a designated wind energy area for which an initial federal lease was issued on a competitive basis after January 1, 2012, have no turbine located within 10 miles of any inhabited area, and have a commercial operations date on or after January 1, 2018, that has been verified by the department of energy resources.  This effectively limits projects to a subset of those winning recent (or future) federal Bureau of Ocean Energy Management lease auction sales.

To date, no commercial offshore wind projects operate in U.S. waters, although Deepwater Wind is currently constructing the Block Island Wind Farm off Rhode Island.   Federal programs, along with some state incentives, are available to support qualifying offshore wind projects.

NY offshore wind leasing advances

The U.S. Bureau of Ocean Energy Management is moving closer to leasing ocean sites offshore New York for commercial offshore wind development.

On June 2, 2016, the Department of the Interior and BOEM announced the proposed lease sale for 81,130 acres offshore New York for commercial wind energy leasing.  The area available for leasing includes a Wind Energy Area designated by BOEM earlier this year.  Roughly triangular, the WEA starts about 11 nautical miles offshore Long Beach, and runs about 26 nautical miles southeast.

Under BOEM's leasing procedures, the agency published a “Proposed Sale Notice (PSN) for Commercial Leasing for Wind Power on the Outer Continental Shelf Offshore New York” in the Federal Register on June 6, 2016.  The PSN includes a 60-day public comment period ending on August 5, 2016.

Any companies wishing to participate in the lease sale must also submit a qualification package by that date, demonstrating legal, technical, and financial qualification to participate.  To date, seven companies have qualified to participate in a future auction for the New York Wind Energy Area.

As required by federal environmental law, BOEM also published an Environmental Assessment (EA) considering potential impacts associated with issuing a lease, associated surveys, and approving the installation of resource assessment facilities in the area.  The EA is available for public comment for 30 days.

BOEM has scheduled a public seminar Wednesday, June 29, 2016 in New York City to describe the auction format, explain the auction rules, and demonstrate the auction process through meaningful examples.  Other public meetings will focus on the agency's planning and leasing efforts regarding New York offshore wind energy activities, as well as the EA.

So far, BOEM has awarded 11 commercial offshore wind leases, generating approximately $16 million in winning bids for over 1,000,000 acres in federal waters.  Previous competitive lease sales have resulted in 9 leases: two offshore New Jersey, two in an area offshore Rhode Island-Massachusetts, another two offshore Massachusetts, two offshore Maryland and one offshore Virginia.

NH regulation of solar PPAs, leases

As distributed energy resources like solar panels become more widely adopted, how do typical solar business models like solar power purchase agreements or solar leases match up to state utility laws?  While the answer may vary from state to state, an order issued by the New Hampshire Public Utilities Commission earlier this year found found that offering solar power purchase agreements or solar leases to customers in New Hampshire would not subject a solar company to Commission regulation under any of several theories.  The order finding no regulation required is consistent with other state policy and precedent supporting distributed generation, and could be a model for other states.

Federal law controls some many aspects of the U.S. electricity industry, but states can and do regulate public utilities and competitive electric power suppliers.  Knowing who these state-regulated utilities and suppliers were was straightforward under the dominant utility models of the twentieth century.  But as new technologies like solar photovoltaic panels or other distributed energy resources become more widely adopted, and new business models like solar power purchase agreements and solar leases arise, their regulatory status can be uncertain.  If a solar company installs solar panels on a customer's roofs, and sells that customers the power produced, will it be regulated like a public utility or supplier under state law?  What if the company leases the panels to the customer?

The New Hampshire Public Utilities Commission recently addressed these questions in answering a 2015 petition by Vivint Solar, Inc.  In that petition, Vivint asked the New Hampshire Public Utilities Commission for a declaratory ruling that it would not regulate Vivint as a public utility, competitive electric power supplier, or limited producer of electrical energy under state law, for offering solar power purchase agreements or solar leases to residential customers in New Hampshire.

In a January 15, 2016 order -- Order No. 25,859 -- the Commission granted Vivint's petition.  First, the Commission noted the value of regulatory certainty:

We believe it is important for a party planning to do business in the state to have a vehicle through which it may clarify its regulatory status prior to entering the marketplace, provided that it can describe in sufficient detail its business plans and practices and these plans and practices are not hypothetical or speculative.

Next, the Commission concluded that the operations described by Vivint would not constitute sales to or for the "public" within the meaning of the statutory definition of "public utility."  Key factors recited in the order included the "conditional nature and relative complexity of Vivint’s relationships with its customers."

The Commission then analyzed its rules regarding competitive electric power suppliers, concluding that although Vivint might meet the regulatory definition of a supplier, that definition "should not be read in isolation but in the context of the overall purpose and effect" of the rules in their entirety.  The Commission then noted that those "Puc 2000" rules "seem intended to regulate  a set of relationships and related transactions that is quite different from those undertaken in the context of customer-sited, behind-the-meter, distributed generation development involving sales of electricity directly to the host customers pursuant to the terms and conditions of PPAs."

Finally, the Commission concluded that neither Vivint's PPAs nor solar leases should be subject to Commission regulation under the New Hampshire Limited Electrical Energy Producers Act.  The Commission interpreted that act's retail sales provisions "as applicable to sales of electricity off-site from the generation facilities," not "on-site and behind-the-meter" sales of power as contemplated by Vivint.

The New Hampshire Public Utilities Commission noted that while the petition and briefs in the case focused on the residential solar energy market, its analysis and conclusions "would not be different if the relevant customers were non - residential, assuming that the Systems were installed on the customers’ premises behind the utility retail electric meter, we re sized no larger than necessary to meet the customers’ reasonably anticipated electric consumption, and involved sales of electricity directly to the host customer or leases of the installed Systems to the host customer."

While the ruling technically applies to the company and facts asserted in the petition, it confirms the possibility of an important role for third-party involvement in distributed generation.

DONG Energy proposes Massachusetts offshore wind farm

A subsidiary of Danish energy company DONG Energy has proposed an offshore wind development to be located in federal waters off the Massachusetts coast.  The "Bay State Wind" project would be a utility scale offshore wind farm, located 15 miles south of Martha's Vineyard.

Largely owned by the Danish government, DONG is the world’s largest developer of offshore wind projects, reportedly having built over 3,000 megawatts or about a third of all installed offshore wind capacity in the world.  Other branches of the company engage in serving Danish customers, oil and natural gas exploration and production, and thermal power generation. 

Because the Bay State Wind project's site is over the outer continental shelf, it falls under federal jurisdiction for site leasing purposes under subsection 8(p) of the Outer Continental Shelf Lands Act.  The wind energy area in question was originally auctioned by the U.S. Bureau of Ocean Energy Management in January 2015.  In that January auction, RES America Developments, Inc. provisionally won the rights to Lease OCS-A 0500 (187,523 acres) with a winning bid of $281,285.  BOEM signed the commercial wind energy lease for the site on March 23, 2015, and the lease went into effect on April 1, 2015.

In April 2015, RES agreed to transfer the lease to DONG.  In accordance with BOEM's process for assigning a site lease, BOEM agreed to assign the lease to DONG Energy Massachusetts (U.S.) LLC on June 12.

According to DONG, full development of the Bay State Wind project might entail 1,000 megawatts of generating capacity.  Its lease area is adjacent to the wind energy area offshore Rhode Island and Massachusetts won by Deepwater Wind in 2013 in BOEM's first competitive lease sale for offshore wind sites.

Auction set for NJ offshore wind sites

The U.S. government has scheduled an auction for the rights to lease two areas of federal ocean space off New Jersey for offshore wind energy development.  The auction, to be held November 9, 2015, will be the fifth competitive lease sale for renewable energy on the outer continental shelf.

Under the Outer Continental Shelf Lands Act, the Department of the Interior has responsibility for managing use and development of the federally controlled outer continental shelf and the waters above it.  The Bureau of Ocean Energy Management exercises key functions in support of this role, managing resource evaluation, planning, and site leasing for energy activities ranging from oil and natural gas exploration and production to hydrokinetic, offshore wind, and other renewable ocean energy projects.

Since early in the Obama administration, BOEM has worked to offer leases to federal ocean sites for offshore wind development or related activities.  To date, BOEM has awarded seven offshore wind site leases through competitive lease sales, plus two more commercial wind leases offshore New Jersey awarded through earlier interim policies.  BOEM's competitive processes have generated over $14.5 million in high bids for over 700,000 acres in federal waters off states including Massachusetts, Maryland, Virginia, and Rhode Island.

Since at least 2009, BOEM has been involved in efforts to lease sites off New Jersey for offshore wind development, including multiple task force meetings, a 2011 Call for Information and Nominations – Commercial Leasing for Wind Power on the Outer Continental Shelf Offshore New Jersey, and a 2014 Proposed Sale Notice.  That notice described a 343,833-acre Wind Energy Area split in two parts, known for leasing as OCS-A 0498 and OCS-A 0499:

BOEM has now announced that it will publish a Final Sale Notice setting a commercial lease sale for November 9, 2015, for the Wind Energy Area offshore New Jersey.  Similar in format to other recent BOEM offshore wind site auctions, the New Jersey sale will include consideration of both monetary factors (the bid) and nonmonetary factors (i.e., whether a bidder has obtained a Power Purchase Agreement or New Jersey Offshore Renewable Energy Certificate award).

No offshore wind projects are in commercial operation in the U.S., although Deepwater Wind is currently constructing its Block Island Wind Farm in state waters offshore Rhode Island.

NH regulation of solar PPAs, leases

If a solar energy company installs solar panels on its customers' roofs, and sells those customers the power they produce, will it be regulated like a public utility under state law?  A petition by Vivint Solar, Inc. has asked the New Hampshire Public Utilities Commission to declare that it will not regulate Vivint Solar as a public utility, competitive electric power supplier, or limited producer of electrical energy under state law.

Vivint Solar describes itself as the second largest installer of residential solar energy systems in the U.S. residential market, with approximately 42,000 residential customers and 274 megawatts of solar systems installed.  The company describes two primary business structures for residential solar projects: long-term power purchase agreements or PPAs, under which a customer agrees to purchase all of the power generated by a solar energy system installed on the customer’s rooftop; and solar leases, under which a customer leases the solar energy system which is installed at the customer’s site. In either case, the solar facilities are owned by Vivint Solar’s affiliates and financing parties to enable efficient use of tax benefits and low-to-no upfront costs for customers.

In its August 14, 2015 petition, Vivint Solar asked New Hampshire regulators for “regulatory clarity on how it may be regulated” if it enters the state to offer its PPAs and solar leases to New Hampshire customers. In particular, Vivint Solar argues that because it would not sell the electricity generated by its solar energy systems to the broad “public,” it is not a public utility under New Hampshire law. Vivint Solar also argues that its contractual relationship with residential customers is fundamentally different from the relationship between a competitive electric power suppliers and its customers, largely because Vivint Solar’s activity occurs on the customer’s side of the utility meter. The company  also asks the Commission to declare that it would not be a limited producer of electric energy, a kind of generator regulated lightly by the Commission. Vivint Solar also notes that its PPAs and solar leases promote New Hampshire’s goal of encouraging competition for retail access, and customer choice for more affordable electricity, as well as New Hampshire’s renewable portfolio standard and other clean energy policies.

The New Hampshire Public Utilities Commission has issued an Order of Notice in the case, with interventions due and a prehearing conference scheduled for early October.

North Carolina offshore wind environmental assessment

The U.S. Department of the Interior's Bureau of Ocean Energy Management has released an environmental assessment of the impacts of leasing sites off the North Carolina coast for offshore wind projects.  This milestone supports the Obama administration's plan to offer site leases on the outer continental shelf for renewable energy projects.

Since 2012, BOEM has solicited public comment on the prospect of leasing about 307,590 acres off North Carolina for potential offshore wind development.  BOEM has identified three Wind Energy Areas offshore North Carolina:

• the Kitty Hawk Wind Energy Area (about 122,405 acres), beginning about 24 nautical miles (nm) from shore and extends approximately 25.7 nm in a general southeast direction;
• the Wilmington West Wind Energy Area (about 51,595 acres), beginning about 10 nm from shore and extends approximately 12.3 nm in an east-west direction at its widest point; and
• the Wilmington East Wind Energy Area (about 133,590 acres), beginning about 15 nm from Bald Head Island at its closest point and extends approximately 18 nm in the southeast direction at its widest point.

BOEM's map of North Carolina Wind Energy Areas.

On January 22, 2015, BOEM announced the availability of an environmental assessment for public review and comment.  Under the National Environmental Policy Act or NEPA, an environmental assessment or EA considers the potential impacts of proposed federal action and analyzes reasonable alternatives to the proposed action.  In this case, the action proposed is BOEM's issuance of commercial wind leases and allowing of site characterization and assessment activities on the Atlantic Outer Continental Shelf offshore North Carolina.

BOEM's environmental assessment for North Carolina offshore wind leasing provides the framework for potential federal lease auctions for North Carolina offshore wind sites.  The environmental assessment is available for public comment through February 23, 2015. 

Federal offshore wind auction held for sites off Massachusetts

Federal ocean energy managers have concluded an auction to lease over 350,000 acres off the Massachusetts coast to prepare for offshore wind development.  Of the four parcels up for bid in today's auction, one was provisionally awarded to RES America Developments, Inc. and another to Offshore MW LLC.  Two other parcels failed to attract any bids.

Onshore wind turbines near the Massachusetts coast.

In today's auction conducted by the Interior Department’s Bureau of Ocean Energy Management (BOEM), RES America Developments, Inc. provisionally won the rights to Lease OCS-A 0500 (187,523 acres) after two rounds of bidding, with a winning bid of $281,285.  Offshore MW LLC provisionally won the rights to Lease OCS-A 0501 (166,886 acres) after two rounds of bidding, with a winning bid of $166,886.  These winning bids are significantly below those that were required to win previous federal competitive lease sales for offshore wind sites.

While today's lease awards are a step forward for U.S. offshore wind, neither lease awarded today grants the right to construct or operate an offshore wind project.  Rather, these leases have a preliminary term of one year, to allow the lessee time to prepare a Site Assessment Plan describing the installation of meteorological towers and buoys and other activities the lessee plans to perform to assess local wind resources and ocean conditions.  Site Assessment Plans must be submitted to BOEM for review and approval.

Once BOEM approves a Site Assessment Plan, the lessee will then have up to five years in which to prepare and submit to BOEM a Construction and Operations Plan (COP) providing detailed information for the construction and operation of a wind energy project on the lease.  After BOEM receives a Construction and Operations Plan from a lessee, BOEM will conduct an environmental review of and public comment period for the proposed project.  If BOEM approves a Construction and Operations Plan, the lessee will have an operations term of 25 years.

Lease OCS-A 0502 (248,015 acres) and Lease OCS-A 0503 (140,554 acres) did not receive bids in today's auction.  As shown on a BOEM nautical chart of the Massachusetts Wind Energy Area, these lease areas are generally farther from the Massachusetts coast than the areas awarded through today's auction.

BOEM touts its offshore wind leasing program as part of President Obama’s Climate Action Plan.  The auction held today by BOEM represents the nation’s fourth competitive lease sale for renewable energy sites in federal waters.  Including this auction, competitive lease sales have generated more than $14.5 million in high bids for more than 700,000 acres in federal waters.  Previous auctions covered sites off Rhode Island and Massachusetts, Virginia, and Maryland.  BOEM expects to hold another competitive lease sale offshore the New Jersey coast in 2015.  

US to auction Massachusetts offshore wind sites

The U.S. Department of the Interior has announced plans to auction more than 742,000 acres offshore Massachusetts for commercial wind energy development.

On January 29, 2015, the Department's Bureau of Ocean Energy Management will hold a competitive commercial lease sale for the rights to site offshore wind facilities in the federally designated Massachusetts Wind Energy Area.  Generally located south of the islands of Martha's Vineyard and Nantucket, the area will be auctioned as four leases.  It starts about 12 nautical miles offshore Massachusetts; from its northern boundary, the area extends 33 nautical miles southward and runs about 47 nautical miles from east to west.  The Massachusetts Wind Energy Area is significantly larger than previously auctioned areas off Massachusetts, Rhode Island, Virginia, and Maryland.  The U.S. Department of Energy’s National Renewable Energy Laboratory has estimated that fully developing the Massachusetts area could support between 4 and 5 gigawatts of commercial wind generation.

BOEM has found twelve companies to be legally, technically and financially qualified to participate in the auction for the Massachusetts Wind Energy Area:

• Deepwater Wind New England, LLC
  
• EDF Renewable Development, Inc.
• Energy Management, Inc.
  
• Fishermen’s Energy, LLC
  
• Green Sail Energy, LLC
  
• IBERDROLA RENEWABLES, Inc.
  
• NRG Bluewater Wind Massachusetts, LLC
  
• OffshoreMW, LLC
  
• RES America Developments, Inc.
  
• Sea Breeze Energy, LLC
  
• US Mainstream Renewable Power (Offshore), Inc.
  
• U.S. Wind, Inc.

Bidders will be ranked based on a combination of monetary factors (primarily their bids) and non-monetary factors (whether or not the bidder has a Community Benefits Agreement or Power Purchase Agreement in place).

The Massachusetts auction will be the fourth competitive lease sale for renewable energy on the Outer Continental Shelf, following previous auctions for sites off Massachusetts-Rhode Island, Virginia and Maryland.  Bidders winning previous auctions have committed over $14 million in bids to secure over 357,500 acres in federal waters.  BOEM expects to hold another lease auction for sites offshore New Jersey in 2015.

Maryland offshore wind sites auctioned

The U.S. Bureau of Ocean Energy Management has sold the rights to lease sites for offshore wind projects in federal waters off Maryland to US Wind Inc. for $8.7 million.

A lighthouse on an island in the Atlantic Ocean, off Maine.

Part of the Obama administration's "Smart from the Start" offshore wind leasing program, yesterday's auction covered the rights to lease nearly 80,000 acres of the outer continental shelf.  The Maryland Wind Energy Area ranges seaward from about 10 nautical miles offshore Ocean City.  According to Department of Energy’s National Renewable Energy Laboratory, the area could support between 850 and 1450 megawatts of commercial wind generation.

The Maryland auction drew three bidders: US Wind Inc., Green Sail Energy LLC and SCS Maryland Energy LLC.  After 19 rounds, BOEM declared US Wind Inc. the provisional winner.  US Wind Inc. is a subsidiary of Italian firm Toto SpA's Renexia group. 

While winning the auction is an important first step in leasing federal ocean sites for offshore wind projects, the process will likely continue to play out for several years.  Following the auction results, US Wind Inc. will have one year within which to submit a Site Assessment Plan to BOEM for approval.  In the Site Assessment Plan, the lessee must describe what it intends to do to assess of the wind resources and ocean conditions of its commercial lease area -- for example, installing meteorological towers and buoys.  If that plan is approved, the lessee will then have up to 4½ years in which to submit a Construction and Operations Plan providing more detailed information for the construction and operation of a wind energy project on the lease.  The filing of that plan triggers further public comment and environmental review; if approved, BOEM will then issue a lease with an operations term of 25 years.  Notably, these leases generally require the lessee to pay ongoing rents; placing the winning bid in the auction conveys the right to pay that rent, but paying that bid does not count towards the lease payment obligation.

Moreover, this entire leasing process is just one of several aspects of the project that must move forward in parallel.  At the same time, US Wind Inc. is likely considering engineering issues such as turbine selection and interconnection design as well as how to finance the project.

Will federal waters offshore Maryland soon become home to an offshore wind project?

Feds to auction North Carolina offshore wind sites

The U.S. Department of the Interior's Bureau of Ocean Energy Management has announced plans to auction the rights to lease sites off the North Carolina coast for offshore wind projects.

Under the Bureau of Ocean Energy Management's "Smart from the Start" competitive program for leasing sites on the outer continental shelf (OCS) for commercial wind energy development, BOEM conducts a series of stakeholder and environmental review processes.  Through these processes, BOEM identifies areas that are attractive for commercial offshore wind development, while also protecting important viewsheds, sensitive habitats and resources and minimizing space use conflicts with activities such as military operations, shipping and fishing.

For North Carolina, the process began in December 2012 when BOEM published in the Federal Register a Call for Information and Nominations and a Notice of Intent to Prepare an Environmental Assessment.  After considering the public comments and responses, BOEM defined three Wind Energy Areas off North Carolina:

• The Kitty Hawk Wind Energy Area begins about 24 nautical miles (nm) from shore and extends approximately 25.7 nm in a general southeast direction at its widest point. Its seaward extent ranges from 13.5 nm in the north to .6 nm in the south. It contains approximately 21.5 OCS blocks (122,405 acres).
• The Wilmington West Wind Energy Area begins about 10 nm from shore and extends approximately 12.3 nm in an east - west direction at its widest point. It contains just over 9 OCS blocks (approximately 51,595 acres).
• The Wilmington East Wind Energy Area begins about 15 nm from Bald Head Island at its closest point and extends approximately 18 nm in the southeast direction at its widest point. It contains approximately 25 OCS blocks (133,590 acres). 

Map of North Carolina Wind Energy Areas, courtesy of BOEM.

The North Carolina auction will follow a series of similar auctions for East Coast offshore wind sites in federal waters over the past year, including sites off Massachusetts and Rhode Island and Virginia, and will come after the scheduled August 19 auction for sites off Maryland.  To date, BOEM has awarded five commercial wind energy leases off the Atlantic coast: two non-competitive leases (for the proposed Cape Wind project in Nantucket Sound and an area off Delaware) and three competitive leases (two offshore Massachusetts-Rhode Island and another offshore Virginia).  Altogether, the competitive lease sales have generated more than $5 million in high bids for more than 277,500 acres in federal waters.  BOEM expects to hold additional competitive auctions for wind energy areas offshore Massachusetts and New Jersey in the coming year.

When will North Carolina offshore wind sites be auctioned?  Who will bid?  Who will win -- and what will the high bid be?  Perhaps most fundamentally, will the BOEM leasing process lead to anyone developing a offshore wind project off North Carolina?