Hawaii National Marine Renewable Energy Center

Licensing & Permitting

Licensing and Permitting of WEC and OTEC Devices: The proposed location determines the various agencies and regulations that apply.  In general, one must consider the Federal Energy Regulatory Commission (FERC), the Bureau of Ocean Energy Management (BOEM) {formerly the  Minerals Management Service (MMS)} of the Department of the Interior (DOI), the Army Corps of Engineers, the Environmental Protection Agency (EPA), the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce (DOC), the US Coast Guard and various state, county and city agencies.  In addition to the licenses and permits that must be secured from different agencies, the project must comply with several other applicable laws.

OTEC Federal Requirements: In the case of OTEC, the 1980 OTEC Act (OTECA) gives NOAA the authority for licensing the construction and operation of Commercial OTEC plants.  After the promulgation of OTECA in 1981 licensing regulations were developed by NOAA, but in 1996 NOAA rescinded these regulations and eliminated its OTEC office because no applications had been received.  NOAA is currently in the process of developing new licensing regulations.  Under OTECA, NOAA is required to coordinate with Coastal States and the US Coast Guard as well as other Federal Agencies (presently these would include BOEM among others).  An EIS would be required for each license.  It is expected that the majority if not all federal, state and local requirements would be handled through the NOAA licensing process.

The original Act (Sec. 9126) exempts test platforms, defined as “any test platform which will not operate as an ocean thermal energy conversion facility or plantship after conclusion of the testing period”, from NOAA’s licensing requirements.   The original Act also gave the Secretary of Energy the authority to exempt commercial demonstration projects from NOAA’s licensing requirements.  Unfortunately there is no strict definition of “commercial demonstration project” in the Act.  The Act states: “The provisions of this subchapter shall not apply to ownership, construction, or operation of any ocean thermal energy conversion facility or plantship which the Secretary of Energy has designated in writing as a demonstration proj­ect for the development of alternative energy sources for the United States which is conducted by, participated in, or approved by the Department of Energy. The Secretary of Energy, after consultation with the Administrator, shall require such demonstration projects to abide by as many of the substantive requirements of this subchapter as he deems to be practicable without damaging the nature of or unduly delaying such projects.”

The distinction between test and demonstration plants is due to the fact that in the late 70’s early 80’s the Federal Government  was  actively engaged in the commercial-scale demonstration of the OTEC technology.  The goal was to sponsor a  40 MW Pilot Plant.  A distinction was made between test platforms , like the 50 kW MiniOTEC (1979), and the pilot (demonstration) plant  that was meant to operate for decades and sell electricity to a Power Company under an Independent Power Producer (IPP) arrangement.  A consortium was awarded a competitive federal contract but unfortunately, due to a change in the USA Presidency, the program did not proceed beyond design of a 40 MW land based plant at Kahe Pt. in Oahu.

WEC Devices: Independently of location, licensing of WEC devices is the responsibility of FERC.  In Hawai’i, the State Government has jurisdiction up to 3 nautical miles (nm) offshore.  The Federal Government has jurisdiction in the Outer-Continental-Shelf (OCS) extending between the outer limits of state waters and the inner boundary of international waters, which begins approximately 200 nm offshore.  BOEM defines the OCS as including submerged lands, subsoil, and seabed.

Outer-Continental-Shelf: For wave energy projects to be located on the OCSBOEM will issue leases, easements, and rights-of-way and will conduct any necessary environmental reviews including those under the National Environmental Policy Act (NEPA). FERC has exclusive jurisdiction to issue licenses and exemptions for the construction and operation of wave energy projects and will conduct any necessary analyses, including those under NEPA, related to those actions.  FERC, however, will not issue a license or exemption until the applicant has first obtained a lease, easement, or right-of- way from BOEM.  Moreover, BOEM and FERC can choose to become a cooperating agency in the preparation of any environmental document required under either process.  This does not preclude other DOI agencies (e.g., U.S. Fish and Wildlife Service, the National Park Service, and the Bureau of Indian Affairs) from intervening. This situation could lead to the requirement of two distinct (although similar in content) Environmental Impact Statements (EIS): one for BOEM and subsequently another for FERC.

State Waters: For wave energy projects to be located in State Waters, BOEM has no jurisdiction, licenses would still be issued by FERC and all other requirements would be under state, county and city rules.  Simply stated, wave energy developers should strive to avoid first generation projects in the OCS.

The following partial list of major requirements for a WEC project off the island of Maui is provided for illustrative purposes:

Federal Permits 

  • BOEM leases, easements, and rights-of-way only if located on OCS;  and, FERC Licensing everywhere;
  • National Environmental Policy Act (NEPA) Environmental Impact Assessment (EIS);
  • Department of  the Interior: Fish & Wildlife Service; and Department of Commerce: National Marine Fisheries Service
  • Army Corps of Engineers Construction Permit (Rivers and Harbors Act Section 10);
  • Army Corps of Engineers Dredge and Fill Permit (Clean Water Act Section 404);
  • Private Aids to Navigation Permit from US Coast Guard (Hazards to Navigation).

State of Hawai’i Permits

  • Non-Utility Generator: application, interconnection requirements study (IRS), power purchase agreement followed by establishment of rates by Public Utilities Commission;
  • EIS: Water Quality Certification (Dept of Health); CZM Consistency Certification from DBED&T; Conservation District Use Permit DLNR; Rights to Use of State Land to Seaward of Shoreline (DLNR, Submerged Lands Act). Under Hawai’i Revised Statues (Chapter 343) EIS incorporates: – Natural Historic Preservation Act (DLNR), – Fish and Wild Life Coordination Act (DLNR), – Endangered Species Act (DLNR), – Marine Mammals Act (DLNR).

Maui County Permits

  • Shoreline Certification;
  • Special Management Area Use Permit;
  • Transmission line easement from landside owners.


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