Army Corps Proposes New Nationwide Permit for Offshore Wind and Hydrokinetic Pilot Projects
The Army Corps of Engineers (the “Corps”) is seeking comments on a new proposed nationwide permit (“NWP”) for offshore wind and hydrokinetic pilot projects. In its February 16, 2011 Proposal to Reissue and Modify Nationwide Permits, the Corps described a new NWP for “Water-Based Renewable Energy Pilot Projects” that could give developers a reprieve from obtaining permits under § 10 of the Rivers and Harbors Act and § 404 of the Clean Water Act for the “construction, expansion, or modification of water-based wind or hydrokinetic pilot projects and their attendant features.”
Under the new NWP, "attendant features" may include transmission lines, roads, land-based distribution facilities, parking lots, and stormwater management facilities.
The new NWP would authorize wind and hydrokinetic pilot projects with no more than 10 individual generation units (e.g., turbines, buoys) that do not cause the loss of greater than 1/2 acre of waters of the United States, including the loss of no more than 300 linear feet of stream bed. However, the NWP would not authorize activities on coral reefs and no structure could be placed in (1) established danger zones or restricted areas, (2) shipping safety fairways or traffic separation schemes established by the U.S. Coast Guard, or (3) open water dredged material disposal areas designated by the Corps or the Environmental Protection Agency. Permitees under the new NWP would be required to notify the Corps’ district engineer as early as possible prior to construction.
It is important to note that the general conditions for all nationwide permits would apply to the new NWP, including Condition 25. Because the new NWP has not previously received a state coastal zone management consistency concurrence, Condition 25 would require that one be obtained or a presumption of concurrence must occur. The requirement for a consistency determination under Section 307(c)(1) of the Coastal Zone Management Act permits coastal states to propose additional conditions on the new NWP that would apply to development in that state. Although all of the western coastal states and Maine have signed memoranda of understanding with the Federal Energy Regulatory Commission to advance hydrokinetic energy projects, and many east coast states like New Jersey have taken steps to incentivize the development of offshore wind, the states will have an opportunity to change how the new NWP is implemented once adopted.
Comments on the new NWP are due no later than April 18, 2011.
BOEMRE Proposes to Streamline Leasing on the OCS
There’s good news for offshore wind and hydrokinetic project developers looking to site projects on the Outer Continental Shelf (“OCS”). The Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE” or the “Bureau”) issued a Notice of Proposed Rulemaking (“NOPR”) on February 16, 2010 to delete a step in the regulatory process for issuing noncompetitive leases to renewable energy projects on the OCS when an applicant responds to a Request for Interest (“RFI”) or a Call for Information and Nomination (“Call”) issued by BOEMRE.
As originally adopted, the regulations governing renewable energy leasing on the OCS outline two methods by which BOEMRE may issue leases noncompetitively.
- First, the Bureau may issue a noncompetitive lease if (1) the applicant submits an unsolicited request for a noncompetitive lease and (2) after issuing notice of the request and soliciting comments, the Bureau determines that no competitive interest in the proposed lease area exists. In this situation, BOEMRE is required to initiate only one public process.
- Second, the Bureau may issue a noncompetitive lease if (1) it publishes an RFI or a Call, (2) the applicant submits an area of interest for leasing in response, and (3) after issuing notice of the area of interest and soliciting comments, the Bureau determines that no competitive interest exists. In this situation, BOEMRE is required to initiate two public processes (the initial RFI or Call and a subsequent notice and comment period) even if the responses to the RFI or Call indicate no overlap in the respondents’ areas of interest.
In its NOPR, the Bureau recognized that “this requirement for a second notice is redundant and is at odds with the noncompetitive process prescribed for cases in which a party submits an unsolicited request . . . and requiring only one RFI notice would make BOEMRE’s leasing processes more streamlined and efficient while maintaining BOEMRE’s obligation to notify the public of areas that may be leased.”
Thus, BOEMRE’s proposed change would eliminate the requirement for a second notice and comment period if, in response to an RFI or a Call, an applicant expresses interest in a lease area that does not overlap with another applicant’s area of interest. This small change could reduce the time to acquire a noncompetitive lease by 12 months. In the event that two respondents indicate an interest in the same lease area, the Bureau’s rules governing competitive leasing would govern.
So far, the vast majority of substantive comments on the NOPR have been positive. All comments are due no later than March 18, 2011.
REMINDER: Applications for SBIR and STTR Phase I Grants Due November 15th
Don't forget that the deadline for Phase I grant applications under the U.S. Department of Energy's ("DOE") Small Business Innovation Research ("SBIR") and Small Business Technology Transfer ("STTR") programs is 8:00 p.m. Eastern, November 15, 2010. Qualified small businesses with strong research capabilities in science or engineering in any of the research areas identified in the September 28, 2010 Funding Opportunity Announcement are encouraged to apply. Phase I grants of up to $150,000 will be awarded in FY 2011 under the SBIR; and grants of up to $100,000 will be awarded under the STTR.
The Phase I Technical Topics document lists several areas of particular interest for the renewable energy industry. Note that the following is not an exhaustive list. The full list and descriptions can be found in the Phase I Technical Topics document.
- Advanced Cooling and Waste Heat Recovery: Advanced Cooling; Advanced Waste Heat Recovery; Geoexchange heat pump (GHP) component R&D; Innovative GHP System/Loop Designs.
- Production of Bioenergy and Biofuels from Cellulosic and Non-Food Biomass: Biomass Feedstock Stabilization and Drying; Biomass Torrefaction; Sugar Catalysis to Advanced Biofuels and Chemical Intermediates; Pyrolytic Thermal Depolymerization.
- Hydrogen and Fuel Cells: Reducing the Cost of High Pressure Hydrogen Storage Tanks; Fuel Cell Balance-of-Plant; Demonstration of Alternative-Fuel Fuel CElls as Range Extenders.
- Innovative Solar Power: High Efficiency, Low Cost Thin Film Photovoltaics; Low Cost Building Integrated Photovoltaics; Static Module PV Concentrators; Solar-Powered Water Desalination; Distributed Concentrating Solar Power ("CSP").
- Advanced Water Power Technologies: Pumped Storage Hydropower; Advanced Hydropower Systems; Wave and Current Energy Technologies; Advanced Component Design for Ocean Thermal Energy Conversion Systems.
- Wind Energy Technologies: Transportation and Assembly of Extremely Large Wind Turbine Components for Land-Based Wind Turbines; Wind Energy Capture in Non-Conventional Wind Resources; Offshore Grid Infrastructure Hardware Development; Offshore Mooring and Anchoring Technology.
Detailed descriptions of each subtopic are included in the Phase I Technical Topics document.
A National Renewable Energy Standard Bill Surfaces in DC
Sens. Jeff Bingaman (D-NM) and Sam Brownback (R-KS), with Sens. Byron Dorgan (D-ND), Susan Collins (R-ME), Tom Udall (D-NM), Mark Udall (D-CO) and others joining, announced today that they will introduce a stand-alone Renewable Electricity Standard (RES) bill. The bill will require sellers of electricity to obtain the following milestones in adding renewable energy resources or energy efficiency:
2012-2013 - 3%
2014-2015 - 6%
2017-2018 - 9%
2019-2020 - 12%
2021 - 2039 -15%
Renewable resources that can be used toward compliance will include wind, solar, ocean, geothermal, biomass, landfill gas, incremental hydropower, hydrokinetic, new hydropower at existing dams, and waste-to-energy. For utilities that are unable to meet their RES targets, the bill proposes to charge a compliance payment at a rate of 2.1 cents per kilowatt hour, with such amounts then being used for renewable energy development or to offset consumers' bills.
A first step, yes. But a small one.
Follow the link to learn more:
Interagency Ocean Policy Task Force Issues Final Recommendations
On Monday, July 19, 2010, the White House Council on Environmental Quality ("CEQ") issued the Final Recommendations of the Interagency Ocean Policy Task Force. The Final Recommendations are the culmination of a process that began on June 12, 2009 when President Obama formed the Task Force and tasked it with developing recommendations to enhance national stewardship of the ocean, coasts, and the Great Lakes and promote the long-term conservation of those resources.
The Final Recommendations will likely be carried over into an Executive Order to be signed by the President, which will establish a National Policy for the Stewardship of the Ocean, Coasts, and Great Lakes and create a National Ocean Council to enhance ocean governance and coordination between federal and state agencies. The Final Recommendations also express the Task Force's unanimous agreement that the United States should acceed to the Convention on the Law of the Sea and ratify its 1994 Implementing Agreement.
The CEQ's press release is available here. Attorneys at Stoel Rives are reviewing the Final Recommendations and assessing their impact on, among other things, offshore renewable energy development including offshore wind and marine and hydrokinetic projects. Stay tuned for more on this important development.
U.S. DOE Releases Funding Opportunity Announcement for Marine and Hydrokinetic Technology Development
Today, the U.S. Department of Energy (the "DOE") released the long-awaited Financial Assistance Funding Opportunity Announcement ("FOA") titled "Marine and Hydrokinetic Technology Readiness Advancement Initiative." Federal funding for this initiative for fiscal year 2010 is expected to be up to $15.36 million, with the possibility of continued funding at, or near, that level for up to an additional two years. (Because all federal funding is subject to annual appropriations, these figures should be treated as estimates.)
The DOE has recognized that marine hydrokinetic ("MHK") technologies can provide renewable, environmentally responsible, and predictable baseload electricity to load centers along the nation's coastlines. And to help accelerate the development and deployment of these technologies, the DOE intends to advance the technological and operational readiness of MHK systems and components across a range of technology readiness levels ("TRLs") through this Funding Opportunity Announcement.
Although TRLs have been used for years by both NASA and the Department of Defense to develop advanced, mission-critical systems, this is the first time TRLs have been used by the DOE to assess the technological readiness of new renewable energy technologies. Recognizing that MHK devices and components are still largely in the early stages of research and development, the DOE has adopted a simplified TRL structure for purposes of this Funding Opportunity Announcement. The DOE is seeking applications in two topic areas: (1) MHK Technologies Concept Development (TRLs 1-3) and (2) MHK Technology Readiness Level Advancement (TRLs 4-9).
Funding will be made available in each topic area for both "systems" and "components." The DOE organized and grouped the TRLs into four discrete funding categories:
- Discovery / Concept Definition / Early Stage Development, Design and Engineering (TRL 1-3);
- Proof of Concept (TRL 4);
- System Integration and Technology Laboratory Demonstration (TRL 5/6); and
- Open Water System Testing, Demonstration, and Operation (TRL 7/8).
Each category has prescribed funding levels and project performance periods. A brief summary of the expected number of awards in each topic area and the associated expected federal funding is included below. For a complete funding breakdown for systems and components, see the Funding Opportunity Announcement.
| Topic Area | Period of Performance | Expected Number of Awards | Total Estimated Federal Funding | Estimated FY 2010 Federal Funding |
|
MHK Technologies Concept Development (TRLs 1-3) |
12 months |
8 (4 systems, 4 components) |
$1.6M | $1.6M |
|
MHK Technology Readiness Level Advancement (TRLs 4-9) |
18-36 months (see FOA) |
18 (11 systems, 7 components) |
$36.72M | $13.76M |
Applications are due to DOE by 11:59 PM Eastern Time on June 7, 2010.
REMINDER: Upcoming DOE Funding for Marine Hydrokinetics
On March 11, 2010, I posted a blog about the U.S. Department of Energy's (the "DOE") upcoming Funding Opportunity Announcement ("FOA") for hydrokinetic technology development. The DOE issued a Notice of Intent announcing the FOA earlier that week. To access the Notice of Intent, click here, and enter "hydrokinetic" in the search field.
The DOE was expected to issue the FOA by March 31, 2010. This blog is intended as a reminder that all interested parties should make sure they have followed the necessary steps to apply or submit questions regarding the FOA. For official procedures, see the Notice of Intent.
To respond to FOAs, either as an applicant to to submit questions, parties must first be registered with FedConnect. In order to register for FedConnect, a party must:
- Have a Duns and Bradstreet Data Universal Numbering System (a "DUNS Number"). If you do not know your company's DUNS Number or if your company does not have one, you can search for it or request one here; and
- Be registered with the Central Contractor Registry (the "CCR"). If you are not currently registered for the CCR, you can register at the CCR website.
If you are the first person to register in your company for FedConnect, you will need your company's CCR MPIN. If your company is already registered with the CCR, then you can find out who has your CCR MPIN by going to the CCR website and clicking "Search CCR." A company's CCR must be updated annually. To update your company's CCR, visit the CCR renewal website.
NOTE: CCR and FedConnect registration can take at least 21 days to complete. Since the DOE is expecting a quick turnaround on the FOA once it is released, interested parties should begin the registration process as soon as possible.
Department of Energy, Department of the Interior, and Army Corps of Engineers Sign Memorandum of Understanding for Hydropower
On March 24, 2010, three federal agencies announced a Memorandum of Understanding for Hydropower (the “MOU”) that impacts developers of traditional hydropower, hydrokinetic, pumped storage, and small-scale hydropower facilities. The Department of Energy (“DOE”), the Department of the Interior (“DOI”), and the Department of the Army, through the U.S. Army Corps of Engineers (“USACE”) (collectively, the “Agencies”), signed the MOU to "meet the Nation’s needs for reliable, affordable, and environmentally sustainable hydropower by building a long-term working relationship, prioritizing similar goals, and aligning ongoing and future renewable energy development efforts" between the agencies. The MOU comes at a time when industry representatives and eleven U.S. Senators are requesting that DOE support a $200 million appropriations request for the advancement of both conventional and advanced waterpower technologies.
In this “new approach to hydropower,” the Agencies intend to focus their collective efforts on advancing sustainable, low-impact, and small hydropower projects and promoting the goal of energy efficiency through water conservation or improved water management. Operating under the MOU, the Agencies will work together to advance four primary objectives:
- Support the maintenance and sustainable optimization of existing Federal and non-Federal hydropower projects;
- Elevate the goal of increased hydropower generation as a priority of each Agency to the extent permitted by their respective statutory authorities;
- Promote energy efficiency; and
- Ensure that new hydropower generation is implemented in a sustainable manner.
For more information on the MOU, including potential next steps for the Agencies, read the Energy Law Alert by Stoel Rives attorneys Cherise Oram, Michael O'Connell, and Chad Marriott posted here.
If you would like to sign up to receive our Energy Law Alerts when they are released, click here.
FERC and Washington Sign MOU on Hydrokinetic Projects
Late last week, the Federal Energy Regulatory Commission (“FERC”) and the State of Washington signed a Memorandum of Understanding (“MOU”) to coordinate their review of hydrokinetic energy projects in Washington state waters. The MOU is intended to reduce some of the regulatory barriers associated with siting and permitting such projects, while also ensuring that projects are undertaken in an environmentally and culturally sensitive manner.
As described in the MOU, FERC and Washington have pledged to collaborate in the following ways: (1) notifying each other of potential applicants for a preliminary permit, pilot project license, or license; (2) agreeing upon a schedule for processing license applications that will include milestones and encourage collaboration among various stakeholders; (3) coordinating the environmental reviews of projects proposed in Washington state waters and consulting with stakeholders on the design of applicable studies; and (4) agreeing that if Washington prepares a comprehensive plan with respect to the siting of hydrokinetic projects, in determining whether to approve a project license, FERC will consider whether the project is consistent with the state plan. Notably, the MOU recognizes that Washington may submit an amendment to its coastal zone management plan to the National Oceanic and Atmospheric Administration (“NOAA”) for approval, and that such a plan may identify a limited number of areas within Washington state waters where hydrokinetic projects may be initially located. Whether NOAA would approve such a plan is unclear.
