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Rules Finalized for Offshore Renewable Energy Projects

Beveridge & Diamond, P.C., April 29, 2009

The Department of the Interior’s Minerals Management Service (“MMS”) has issued final regulations for the development of wind, wave and other renewable energy projects on the U.S. Outer Continental Shelf (“OCS”) beyond state waters.  These long-awaited rules establish a process for granting leases, easements, and rights-of-way for renewable energy development on the OCS and also establish a method for sharing revenues generated from these projects with adjacent coastal States.

MMS made a number of changes to the final rules based on hundreds of comments submitted in response to the proposed rule, which was published last July.  MMS also plans to publish a guidance document that will support the regulations and describe the type of information the agency will look for in a plan submittal. 

Congress provided the MMS with the authority to develop a renewable energy OCS program in the Energy Policy Act of 2005.  The finalization of regulations was delayed, in part, due to a jurisdictional dispute between MMS and the Federal Energy Regulatory Commission (“FERC”) over which agency had authority to regulate hydrokinetic (e.g., wave and current) projects on the OCS.  This jurisdictional uncertainty was resolved on April 9, 2009 in a Memorandum of Understanding (“MOU”) signed by the agencies.  Under the MOU, MMS has exclusive jurisdiction over offshore wind and solar projects and has exclusive jurisdiction to issue leases for hydrokinetic projects on the OCS.  FERC has exclusive jurisdiction to grant licenses for OCS hydrokinetic projects once they have first obtained a lease from MMS.

The new rules are a critical step forward for the development of offshore renewable energy projects in federal waters and were published in the Federal Register on April 29, 2009 and will be effective 60 days after publication.

For more information, please contact Peter Schaumberg (pschaumberg@bdlaw.com), Fred Wagner (fwagner@bdlaw.com), or Anne Finken (afinken@bdlaw.com). 

For a printable PDF of this article, please click here.

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