Regulatory Filters

There are a number of state and federal agencies with overlapping jurisdiction for MHK power. Although FERC (an independent agency within DOE) was granted jurisdiction over hydroelectric development through the Federal Power Act, leases on the U.S. outer continental shelf require approval by BOEM (Department of the Interior) according to the Outer Continental Shelf Lands Act and the Energy Policy Act of 2005 (Righi, 2011). This is further complicated in the case of ocean thermal energy conversion (OTEC), because NOAA (Department of Commerce) was given responsibility for licensing commercial OTEC facilities under the Ocean Thermal Energy Conversion Act of 1980. Because no applications were received, in 1996 the regulations for licensing commercial OTEC plants were rescinded. OTEC demonstration projects are not required to receive a license but must instead be designated as a demonstration project by DOE.

FWS (Department of the Interior) and NOAA are charged with coordinating activities to protect marine mammals from potentially harmful development under both the Marine Mammal Protection Act of 1972 (16 U.S.C. § 31) and the Endangered Species Act (16 U.S.C. § 1531-1544). NOAA also has jurisdiction under the Magnuson-Stevens Fisheries Act to protect essential fish habitats (16 U.S.C. § 1855(b)(2)). Projects in navigable waters typically fall under the jurisdiction of USACE under the Rivers and Harbors Act but may also require involvement from the U.S. Coast Guard (Righi, 2011). USACE permitting may also be required for any projects involving dredging rivers or coastal areas under the Clean Water Act (PNNL, 2010). The Coastal Zone Management Act involves coordination among local, state, and federal agencies to ensure that plans are in accordance with a state’s own coastal management program (PNNL, 2010). In addition to dealing with federal authorities, offshore renewable development in state waters will fall under state rules, with parts of the system (e.g., the transmission cable on land) also subject to county and municipal zoning.

A good example of the complexity of these jurisdictional issues is from California, where, owing to the state’s own laws and regulations—for example, California Organic Act, California Harbors and Navigation Code, and California Coastal Act)—the California Natural Resources Agency, the California Environmental Protection Agency, and the California Public Utilities Commission were all involved in a memorandum of understanding with FERC regarding the development of MHK off the coast of California (CalEPA et al., 2010).1


1 The memorandum of understanding “seeks to develop a procedure for coordinated and efficient review of proposed [marine and] hydrokinetic projects that is responsive to

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