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BOEM Amends Offshore Renewable Energy Rules

Beveridge & Diamond, P.C., April 18, 2014

On April 17, 2014, the Bureau of Ocean Energy Management (BOEM) published a final rule for federal offshore renewable energy leases, rights of way, and other grants.  The principal change extends the timeframe for submitting Site Assessment Plans (SAPs) and General Activity Plans (GAPs) until 12 months following issuance of the lease or grant.  The same deadline now applies for both competitively-issued and noncompetitively-issued leases and grants. 

After a prospective wind or other renewable energy developer receives a federal lease or grant from BOEM, the next required step is to prepare and submit a SAP or GAP for BOEM’s approval.  Commercial lessees must prepare a SAP, which describes planned activities (e.g., installation of meteorological towers or meteorological buoys) to assess the specific site conditions and the renewable energy potential in the area or to test particular technology.  Non-commercial lessees and all grantees must submit a GAP, which describes the entire project the lessee or grantee intends to undertake (including site assessment and construction). 

A prerequisite for a SAP or GAP is completion of physical and environmental surveys to document the potential impacts of site assessment and other activities contemplated in the proposed plan.  To foster diligent efforts towards development, BOEM originally required submission of SAPs/GAPs within six months for competitively issued leases or grants, and within 60 days for non-competitive leases or grants.  Though BOEM reportedly has received only one proposed plan to date, the agency determined that the existing deadlines were impractical due to seasonal weather and other challenges on the Outer Continental Shelf.  Thus, BOEM will now afford 12 months for all renewable energy leases and grantees to submit a SAP or GAP.  Industry and public comments generally supported this regulatory change.

The final rule is not limited to the SAP/GAP extended deadline.  BOEM additionally clarified that developers submitting unsolicited proposals for offshore renewable energy projects (i.e., not through the competitive leasing process) need not submit a Coastal Zone Management Act consistency certification until BOEM determines there is no competitive interest in the area.  Moreover, BOEM adopted regulatory changes that it labels as “clarifying” or “technical.”  At least one regulatory change, however, is substantive and legally questionable – namely, the inclusion of renewable energy contractors and subcontractors, rather than only lessees, grantees, and operators, among the parties potentially liable to BOEM or the Bureau of Safety and Environmental Enforcement. 

Beveridge & Diamond’s Natural Resources and Project Development team advises clients on the complex legal issues impacting development of renewable and traditional energy resources on federal lands and the Outer Continental Shelf.  To discuss these issues further, please contact Jamie Auslander (jauslander@bdlaw.com, 202-789-6009), Peter Schaumberg (pschaumberg@bdlaw.com, 202-789-6043), or John Cossa (jcossa@bdlaw.com, 202-789-6093).  A copy of the final rule is available here.

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