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Federal Links
FEDERAL AGENCIES
- National Oceanic and Atmospheric
Agency (NOAA)
NOAA's mission includes conservation and management of the nation's coastal and
marine resources. As such, NOAA has been authorized to administer licensing and
regulation of OTEC development
within the United States (although to date, no plants have ever been licensed.
- DOI Mineral Management Service (MMS)
MMS is a bureau of the Department of Interior. The
Outer Continental Shelf Lands Act (OCSLA) authorized the Secretary of the DOI to
manage exploration and development of the Outer Continental Shelf. The Secretary subsequently delegated this authority to the MMS which now administers offshore programs such as gas and oil leasing and exploration and has also developed the "Rigs to Reef" program under which defunct platforms are converted into artificial reefs.
- U.S. Army
Corps of Engineers
The U.S. Army Corps of Engineers has a variety of
programs which might impact ocean energy development. These include issuance of "Section 404" permits for dredge and fill (which would be required to construct or place an ocean energy project), ensuring navigability of waters and guarding against shoreline erosion both of which could be affected by ocean energy development.
- Department of Energy (DOE)
The Department of Energy does not permit or license renewable energy projects but undertakes research of renewables and sponsors many funding, grant and partnership programs for private renewable developers. The National Renewable Energy Laboratory is the DOE's primary laboratory for research and development of renewable energy and energy efficiency technology and sponsors many funding and grant programs. The DOE's Energy Efficiency and Renewable Energy (EREN) Network website offers numerous links to renewable resource materials, both within and outside of DOE and also contains links to DOE financing programs.
- Federal Energy Regulatory Commission (FERC)
FERC issues licenses for private hydropower development on navigable waterways, federal lands and for projects which affect interstate commerce located on commerce clause waters. While FERC would clearly have jurisdiction over wave technologies used in riverine environments, there is some question as to whether the definition of "navigable waterways" extends to coastal waters up to three miles from shore which would have the curious effect of giving FERC licensing jurisdiction over certain ocean based wave power projects. This jurisdictional issue of first impression would require resolution prior to development of a wave energy project.
FERC also has regulatory authority over the terms and rates for power sales from an ocean energy project to a local utility.
- Small Business Administration (SBA)Many ocean energy developers are the types of fledling small companies or businesses that SBA was created to assist. SBA offers loans and grants to small businesses and provides a wealth of information and reports of use to small businesses at its website. In addition, should a small company find itself experiencing enforcement problems with a federal regulatory agency, the SBA's
National Ombudsman Program can intercede on a small company's behalf and assist with negotiation of a settlement or investigation of a complaint against the agency.
- United States Patent and Trademark Office
The value of many ocean energy projects depends on appropriate protection of the underlying technology. The USPTO website offers substantial information on the patent process, although developers will likely need to consult with a patent attorney to ensure full protection of their rights in the technology.
FEDERAL STATUTES
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Federal Jurisdictional Issues and Ocean Energy
The federal bureaucracy poses one of the greatest potential hurdles to the development and eventual commercialization of ocean and wave energy in this country. At left, we have listed several of the federal agencies which could potentially exercise jurisdiction over ocean projects as well as some of the federal statutes which have implications for ocean energy development. Yet with the exception of NOAA which by statute regulates licensing of OTEC projects, no one agency has clear licensing authority over non-OTEC ocean energy projects. Identifying which federal agency should take the lead role in licensing ocean energy projects is a necessary step for the successful development and commercialization of ocean energy within the United States.
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Of course, resolution of the issue of appropriate federal agency jurisdiction does not eliminate the role of the states. Under most federal licensing regimes (e.g., FERC hydropower licensing, Section 404 permits, OCSLA leases and others), the federal agency must consult with the affected states and comply with their laws and regulations unless they are expressly preempted by federal law.
Power Sales
Ocean energy developers are also power sellers and thus require familiarity with energy regulatory laws. In most cases, small developers obtain certification as a "qualifying facility" (QF) or "exempt wholesale generator (EWG) to avoid regulation as a utility or in some cases, obtain more favorable rate treatment.
The FERC website contains a section on the Electric Industry which offers extensive information on the QF and EWG certification process.
FERC also has jurisdiction over sales by a developer to a utility which are known as "wholesale sales." In most cases, wholesale rates established in a contract between the supplier and purchaser and are then submitted for review to
FERC to ensure that rates are "just and reasonable." Retail sales, i.e., sales directly to the end user are regulated by the state utility commissions.
Federal Grants
While the Bush Adminisration's Energy Plan did not put great emphasis on renewable development, federal funds and grants may still be available for ocean energy projects, particularly those which hold commercialization potential. Many of the programs, however, may not specifically identify "ocean energy" as a technology covered by the program (since ocean energy was not considered viable when many of these programs were put in place). However, so long as the programs do not explicitly EXCLUDE ocean energy, ocean energy developers will likely be considered eligible. In addition, ocean energy developers can also classify their projects as hybrid wind/wave or solar/wave projects (or add a wind or solar component) to further secure eligibility to compete for grant funds. Below is a list of federal grant resources:
DOE Energy Efficiency and Renewables Solicitations (list of DOE Solicitations)
Research Tips
We have listed some of the federal laws which affect ocean energy development and identified some of the relevant federal agencies. Firstgov will enable you to locate other relevant agencies by conducting a topic based search. As for sources for additional legal research, Cornell LII US Code Collection contains a free database of the US Code. It is also important to check related federal regulations; these can be found at GPO Federal Register Website. You may also email LOCE with additional research questions.
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