FERC contests minerals service authority over ocean power projects

Federal Energy Regulatory Commission staff has urged the federal Minerals Management Service to back off plans to regulate ocean energy projects that FERC contends are within FERC's regulatory jurisdiction.

FERC staff commented in response to an MMS proposed rulemaking in which the minerals service maintains it is the lead federal agency for regulating ocean and tidal energy projects on the offshore Outer Continental Shelf. (HNN 7/10/08)

The FERC staff filing recommends that MMS, an Interior Department agency, coordinate its efforts to regulate OCS projects with FERC's ocean and tidal project regulatory program. FERC staff also urged MMS to refrain from issuing any rule that would: conflict with the Federal Power Act; interfere with the regulatory responsibilities of the commission and other agencies under that act; or frustrate the orderly development of hydropower projects on the Outer Continental Shelf.

FERC staff said regulating hydropower on the Outer Continental Shelf is a FERC responsibility under the FPA, which states the commission is responsible for authorizing private development of hydroelectric facilities on all navigable waters, including oceans up to at least 12 nautical miles offshore.

�The commission cannot ignore the jurisdiction conferred on it by Congress in the FPA,� commission staff said. �Similarly, the MMS cannot eliminate the jurisdictional structure and application of the FPA through rulemaking.�

MMS previously said the agencies were unable to resolve conflicting views as to whether the FPA grants FERC jurisdiction to at least 12 nautical miles offshore, which would limit MMS authority to oversee wave or current projects. Although MMS and FERC at one time agreed to develop a memorandum of understanding to resolve jurisdictional issues, MMS has not signed the memorandum.

The commission staff recommends MMS remove wave and ocean current energy from the proposed rule and, as a land management agency under the Federal Power Act, work closely with FERC �to foster the orderly and environmentally sound development of these resources.�

�To this end, commission staff also recommend that the MMS sign and begin implementing the previously mentioned MOU with the commission,� FERC staff added.

In January, MMS issued a decision to proceed with management of alternative energy projects, including ocean energy projects, on the OCS. At that time, it said it would consider individual energy projects on a case-by-case basis before it completes final programmatic regulations.

Comments are due Sept. 8 on the proposed rulemaking (MMS-2008-OMM-0012) for regulating alternative energy production activities and alternate uses of existing facilities on the OCS. MMS plans to complete the final rule by December.

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