Thomas (T.J.) Reinhardt

Renewable wave energy is an underused energy market widely available across the world’s coasts. These same coasts are also at the highest risk of rising oceans due to fossil fuel-induced climate change. Although wave energy is a relatively recent development compared to other renewable energy sources, projects worldwide are set to determine its long-term sustainability. This piece seeks to explain wave energy technology, note regulatory hurdles for investors in these developments, describe an existing project in the United States, and strategize how future development of wave energy projects may be promoted to address the increasing threat of climate change.

I. The Basics of Wave Energy

Marine hydrokinetic energy, which includes wave energy, is a technology that uses waves or wind currents on the ocean’s surface to capture energy. Wave energy has many benefits. This energy form is a relatively reliable resource, as it would generally be available twenty-four hours per day, three-hundred-sixty-five days per year.[1] It can be accurately forecasted several days in advance.[2] Wave energy is also generally more affordable when compared to other energy forms.[3] What’s more, harnessing wave energy does not release any greenhouse gasses (GHG) or require nearly as much land as other renewable energy forms, using smaller amounts of area in otherwise unused water space.[4]

There are generally four methods of converting waves into energy: terminator devices, attenuators, point absorbers, and overtopping devices. Terminator devices are most often used in near-shore energy collection.[5] These devices feature a submerged opening that allows water to flow in, trapping air inside an enclosed chamber with the water. When the water level rises with the passing wave, that trapped air is pushed upwards, which pushes a turbine as the wave goes by.[6]

Attenuators, similarly, use the rising water levels from the ocean’s waves to power a turbine.[7] These devices are typically fixed to the ocean floor and float on the surface in “long floating pontoons.”[8]

Point absorbers, much smaller than terminators and attenuators, use a buoy within the device that rises and falls as waves roll in, which powers hydraulic converters inside the machine.[9] These devices are the wave energy converters used in the Florida Atlantic University (FAU) wave energy project, one of the first wave energy projects in the U.S. (discussed later).[10]

Finally, overtopping devices, arguably the most complex of the four, use ocean waves to push water into an elevated reservoir. When the reservoir releases the water back into the ocean, it flows over a turbine mechanism, which causes the turbine to generate electricity.[11]

II. Wave Energy Projects & Their Many Regulators

“12 miles off the coast of Fort Lauderdale lies one of the few marine hydrokinetic energy projects in the United States.”[12] This is FAU’s wave energy development, Florida’s first renewable wave energy farm. As outlined below, projects like this one must navigate many hurdles with regulatory compliance, funding, environmental assessments, and other challenges.

Florida has a three-mile territorial sea boundary, so a project like FAU’s, twelve miles from shore, would be in federal waters. This means that, under the Outer Continental Shelf Land Act, various federal agencies must step into the picture.[13] The main federal agencies creating laws impacting wave energy projects, like FAU’s, are the Federal Energy Regulatory Commission (FERC) and the Bureau of Oceanic Energy Management (BOEM).

FERC oversees inland hydropower in the United States and, since 2002, also oversees offshore hydropower.[14] Under the Outer Continental Shelf Land Act, any entity desiring to begin a hydrokinetic energy project must first obtain licensing from FERC.[15] In this sense, FERC’s near-exclusive jurisdiction generally extends to all marine hydrokinetic energy projects. Often BOEM is allowed to co-regulate the project with FERC.[16] In most cases, however, BOEM’s ability to regulate will be limited to solely state shore territory.[17]

While FERC and BOEM are the main regulators in wave energy projects, there are more. For example, FAU’s wave energy project, and likely others, also required an analysis under the National Environmental Policy Act (NEPA) that illustrated the impacts of the proposed development on stakeholders.[18] In FAU’s NEPA analysis, it first needed to comply with the National Historic Preservation Act.[19] Typically, this is a low bar, as offshore historic sites are quite rare.[20] Developments must also comply with the Endangered Species Act, assessing threats to certain species in conjunction with the Fish and Wildlife Services and the National Marine Fisheries Service.[21] Similarly, projects must ensure they are not disturbing important fish habitats in compliance with the Magnuson-Stevens Fishery Conservation and Management Act.[22]

It is important to note this is a non-exhaustive list of, mainly, federal laws and regulations. Proposed marine hydrokinetic energy projects in state waters will likely be required to comply with state laws as well. For example, FAU’s project also needed to address the Coastal Zone and Marine Act, a regulation only required in Florida.[23] In short, the successful development of wave energy projects requires a massive amount of upfront work and a solid understanding of federal and state law to maintain compliance.

III. Streamlining the Process for Greater Impact

Despite wave energy’s great potential and positive impacts, governmental and private sector encouragement has been slightly lacking. The best way to help promote wave energy projects in the U.S. would be to simplify the permitting process.[24] As one can see above, there are many protections put in place in the U.S. to ensure the sustainable development of these projects. These protections are understandable, given the desire to protect vulnerable environments and species. However, jumping through so many of these “hoops” makes getting these developments up and running extremely difficult and expensive. It is true that other energy projects, wind farms for example, similarly have rigorous compliance standards. However, because of their established nature and more widespread implementation, these projects typically have more active investors, making development and deployment less difficult.

FERC already has memoranda of understanding (MOUs) with multiple states to “coordinate the regulatory actions which significantly helps to clarify and speed up [a] proposed wave energy project.”[25] Coastal states, like Florida, need to take this step just as California, Oregon, Maine, and Washington have in order to promote wave energy investment on their coastlines.[26]

Additionally, increasing publicity for wave energy developments would help encourage support, funding, and awareness for them. Higher visibility would show the benefits of these projects to lawmakers, investors, and the public. Hopefully, this would promote beneficial policy changes, which would, in turn, support new wave energy farms.

IV. Conclusion: Slow, but Exciting, Beginnings

While wave energy seems to be catching on slower than other renewable energy projects, its abundance and eco-friendly attributes make it an exciting field for more research and development.

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[1] Andrew Thornquest, The New Wave of Florida Energy: The Regulatory Path to Harnessing Marine Hydrokinetic Power, 34 Pub. Land & Res. L. Rev. 191, 193-194 (2013).

[2] Id.

[3] Id.

[4] Id. at 198.

[5] Id. at 195.

[6] Id. at 195.

[7] Thornquest, supra note 1 at 195–196.

[8] Id. at 195.

[9] Id.

[10] Id. at 193.

[11] Id. at 197.

[12] Id. at 200.

[13] See 43 U.S.C. § 1331.

[14] Thornquest, supra note 1 at 202.

[15] Id.

[16] Id. at 202.

[17] Id. at 203.

[18] Id. at 207.

[19] Id. at 208 (citing 54 U.S.C. § 306108).

[20] One example of an offshore historic site would be a protected shipwreck.

[21] Thornquest, supra note 1 at 208 (citing 16 U.S.C. § 1536).

[22] Id. at 209  (citing 16 U.S.C. §1801-1891).

[23] Id. (citing 16 U.S.C. §1451).

[24] Id. at 214.

[25] Id. at 203-204.

[26] Id. at 203.