Wave New World: Promoting Ocean Wave Energy Development through Federal-State Coordination and Streamlined Licensing

By Sherman, Mark | Environmental Law, Fall 2009 | Go to article overview

Wave New World: Promoting Ocean Wave Energy Development through Federal-State Coordination and Streamlined Licensing


Sherman, Mark, Environmental Law


I.   INTRODUCTION
II.  WAVE ENERGY CONVERSION: TECHNOLOGICAL AND ENVIRONMENTAL
     CONSIDERATIONS
     A. Types of WEC Devices in Development.
     B. Potential Environmental Effects
     C. Dominant Environmental Laws that Apply to WEC Devices
III. JURISDICTIONAL JUMBLE
     A. Location, Location, Location: Overview of the FERC-MMS
        Jurisdictional Dispute
     B. FERC's Jurisdiction over Hydropower Projects
     C. Murky Waters: FERC's Basis for Asserting Jurisdiction over Wave
        Energy Projects
     D. MMS's Basis for Asserting Jurisdiction over Hydrokinetic
        Projects Located on the OCS
     E. Lost Opportunity to Calm the Waters
IV.  WHICH AGENCY'S REGULATORY SCHEME  IS BETTER?
     A. FERC's Licensing Process for Wave Energy Projects
        1. The Hydrokinetic Pilot Project License Process and
           Conditioned Licenses
        2. Choppy Waters: How Not to Coordinate the WEC Licensing
           Process
        3. Good FERC, Bad FERC: Post Makah Bay Developments
     B. MMS's Proposed Rule for OCS Alternative Energy Projects
        1. States' Views of the Proposed Rule
        2. The Ocean Energy Industry's View of the Proposed Rule
        3. MMS and the OCS According to FERC
     C. Rising Tide of Cooperation: Everybody Wins?
        1. The FERC-MMS MOU
        2. The Final Rule
        3. FERC and MMS Offer Guidance
     D. Another Option: Jettison FERC and Leave WEC to the States
        and MMS
V.   WAVE OF THE FUTURE: STREAMLINING WAVE ENERGY LICENSING WITH A
     ONE-STOP SHOP
     A. OTEC Act: A Forgotten Model of Federal One-Stop Licensing
     B. Other Federal One-Stop Programs
     C. State Models of Streamlined Permitting.
     D. Regulatory Streamlining in Denmark
VI.  FINDING THE PERFECT WAVE ENERGY CONVERSION ACT
     A. Make the States Equal Partners in Siting Wave Energy Projects
     B. Federal Support for Research and Development of Wave Energy
     C. Financial incentives
VII. CONCLUSION

I. INTRODUCTION

With colorful names like AquaBuOY, (1) CETO, (2) Pelamis, (3) Wavebob, (4) and Wave Dragon, (5) wave energy conversion (WEC) devices are ready for prime time, and wave energy is generating excitement as one of the most promising of the emerging renewable energy sources. In development around the world, a plethora of WEC devices battle to prove their technological supremacy. Members of the European Union have caught the wave, and Portugal recently laid claim to the first operational wave energy park that now produces a modest amount of electricity powering a thousand homes. (7) In the United States, wave power could add considerably to the U.S. energy supply, (8) and it "could be among the most environmentally benign electricity-generation technologies yet developed." (9) Wave energy, formed by wind currents passing over open water, has advantages over its better known and more developed cousin wind energy, such as the higher energy density of water compared to windy Most importantly, wave energy is not intermittent like wind, and this greater reliability makes it easier to integrate into the electric transmission grid. (11)

Yet, however exciting the possibilities for wave energy development may be, the current regulatory framework in the United States creates an unfavorable climate for the commercial development of WEC. Critics describe this framework as "a patchwork of policies" (12) that is "unclear or unfavorable" (13) and "destined for conflict," (14) largely because of the unanswered question of which federal agency has primary authority over wave energy projects located beyond state territorial waters (from three to nine nautical miles (15) from shore) on the outer continental shelf (OCS). However, after more than three years of interagency squabbling in which both the Federal Energy Regulatory Commission (FERC) and the Department of the Interior's Minerals Management Service (MMS) claimed this jurisdictional authority, the two agencies reached an agreement in 2009 that is an important first step toward regulatory certainty for WEC developers. …

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