Regulation of Marine

Renewable Energy Development in the

United StatesA 15 Minute Encapsulation

_____________________

Carolyn Elefant, Esq.

Ocean Renewable Energy Coalition

202-297-6100

Carolyn.elefant@fercfights.com

Global Marine Renewable Energy Conference, New York City

April 17, 2008

Welcome to the United States!

For marine renewables, the U.S. is a land of enormous opportunity…

…and enormously complicated regulation!

This talk gives a snapshot of the regulation of marine renewables in the U.S. and some of the

challenges we face.

Here, my challenge is to complete my overview within fifteen minutes.

One reason for the complexity of regulation of marine renewables is that oceans are public resources held in trust

and accommodating multiple uses.

Regulation is particularly complex in the U.S. because of a

federalist system with dual state and national interests.

O OTEC

• NOAA has license authority under OTEC Act of 1980.

• NOAA withdrew regulations in 1996 since no company ever filed an application.

O Offshore Wind

• MMS empowered to issue wind leases on OCS per EPAct 2005.

• States approve projects on state submerged lands and portions of OCS projects that cross state lands.

OWave/Tidal

• 0-3 miles - FERC, under Part I, FPA

• 3-12 miles - MMS and FERC? Or MMS or FERC?

• 12-200 miles - MMS

OFERC/MMS: Key Differences

• FERC – Authority over entire project,

state and federal pieces– License does not confer

property interests– Rules adapted from hydro– Permit gives priority– Developer selects sites

• MMS– Authority stops at OCS limits– Lease confers property interest– Developer can nominate sites

but MMS may open for bid – Still developing rules– No priority rights in proposed

test lease rules– Programmatic approach

Different

FERC Approvals

• Preliminary Permit– 3 years, site study only, priority for

license• Verdant Exemption

– 18 month exempt to test facility• Pilot Project License

– 5 year, <5 MW, 1 year app. process, must decommission

• Conditional License– License but no construction until all

permits received• License

– 30-50 year term• Exemption

– Minimal FERC oversight after issuance

Different Types of MMS Leases

• Interim/Test Lease – For data collection or testing

facilities for alternative energy technologies on OCS

– As proposed, no priority rights– As proposed, competitive

process– NOPR, request for nominations

and draft proposed lease issued, awaiting final rule

• Longer Term Lease– ANOPR in Feb. 06, policy

under development– Programmatic EIS prepared

and issued

Statute/ Authorization

Prelim. Pe rmit

Ve rdan t Exemp t.

Pilot Lice ns e

Con ditio nal Lice ns e

Lice ns e MMS Le as es

Co as tal Zon e Manag eme nt Act (s tate)

O

P

P

P

P

P

Clean Water Act, sec. 404 (Corps.)*

O

P

P

P

P

No, not on OCS

Clean Water Act, sec. 401 (state)*

O

Technology dependent

Technology dependent

Technology dependent

Technology dependent

No, not on OCS

Rivers & Harbors Act Sec. 10 (Corps.)

O

P

O

O

O

P

NEPA (authorizing fed. Agency)

O

P

P

P

P

P

Endangered Species Act (DOI)

O

P

P

P

P

P

Various fed. Fish/migratory mammal laws

O

P

P

P

P

P

State and local envir. requirements

O

P

P

P

P

Not, not OCS.

MMS lease MMS says no PP on OCS

Not clear if MMS will allow VE on OCS

Yes, if on OCS

Yes, if on OCS

Yes, if on OCS

N/A

State land lease O

P

P

P

P O

P - Required O - Not required

Summary Chart of

State & Fed.RegulationsApplicable

To FERC andMMS Author-

izations

The puzzle for the U.S. is to regulate in a way that helps wave/tidal to “commercialize without compromise.”

What are the regulatory options for marine renewables?

One stop shopping centralizes the process, but won’t work unless agencies will cede control.

Streamlining speeds demos into the water, but developers may not use them without funding or option for build out.

Programmatic plan/zoning can give certainty…but do we have

enough data now to draw “lines in the sand?”

Adaptive management allows for data gathering and staged

growth…but what to do if impacts can’t be addressed?

Let’s use these next few days to create regulatory options that point marine renewables in the direction of success.

• It is time for Marine

Renewables to “seas” the day!

• For additional information, visit www.oceanrenewable.com