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Ocean and Tidal Energy

Ocean and Tidal Energy

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Ocean and Tidal Energy

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  1. Emerging Technologies: Permitting, Generation and Transmission Ocean and Tidal Energy Cherise M. Oram 2009 Environmental and Land Use Law Section Midyear Meeting and Seminar

  2. What are the New Hydrokinetics? • Ocean wave, current, tidal and in-stream current • 80+ technologies worldwide • 20+ being investigated in the United States • Ocean wave/current: • 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 • Industry expects 3 wave (on shore, near shore, off shore), 1 current, 1 tidal technology to prevail

  3. Wave

  4. 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)

  5. Benefits • 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)

  6. 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 • installation impacts • shipping and navigation • crabbing and fishing • endangered species • marine mammals • migratory birds • electromagnetic field • recreation and public safety • sediment transfer/erosion

  7. Regulatory Environment • 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

  8. 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

  9. 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

  10. Minerals Management Service leases • Final rule issued yesterday • Renewable energy leases on Outer Continental Shelf • wind, wave, current, solar, generation of hydrogen • Limited lease • Commercial lease • Financial assurance requirements • Per acre and production fees ....STILL WORKING ON HOW TO MARRY FERC and MMS PROCESSES

  11. 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?

  12. 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

  13. Settlement Agreements • 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

  14. 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

  15. 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

  16. Cherise M. Oram(206) 386-7622 cmoram@stoel.com