Regulatory Frameworks

The following information on regulatory frameworks is intended to provide an overview of country-specific requirements for environmental review and permitting (consenting) of marine renewable energy devices (specifically wave and tidal). This information is intended for general purposes only and should not be construed as legal advice or a legal opinion. It does not represent a complete record of the regulatory requirements for a given country, nor is it correct to assume that all the authorizations necessarily apply to all marine renewable energy projects. Please email jonathan.whiting@pnnl.gov with any corrections for outdated/incorrect information.

 

A recent report by OES also provides details for consenting: Consenting Processes for Ocean Energy on OES Member Countries (WaveEC 2015)

 

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Contents 1 Australia 2 Belgium 3 Canada 4 China 5 Denmark 6 Germany 7 Ireland 8 Italy 9 Japan 10 Mexico 11 Monaco 12 New Zealand 13 Nigeria 14 Norway 15 Portugal 16 Republic of Korea 17 Singapore 18 South Africa 19 Spain 20 Sweden 21 The Netherlands 22 United Kingdom 22.1 England 22.2 Northern Ireland 22.3 Scotland 22.4 Wales 23 United States of America

Australia

Environmental reviews are carried out by the Australian Government under the Environment Protection and Biodiversity Conservation Act 1999 and require an environmental assessment. Marine energy projects can obtain consent under the Coastal Management Act 1995. Consent is then administered at the state level.

 

Victoria, a state in the southwestern region of Australia, has the most developed process to date, structured by the Department of Environment and Primary Industries.

(Last updated April 9, 2015)

 

Belgium

Development of marine renewable activities in the portion of the North Sea managed by Belgium is covered by legal rules and procedures allowing or rejecting a license or concession for the planned activity. The permit system covers concessionary rights and exploitation authorization, including environmental impact assessments (EIAs).

 

The permit system and the regulating authorities involved reflect the sectoral legal framework. Four permits are required for offshore wind parks: Domain Concession, Environmental permit, Authorization for the construction and operation, offshore cable building permit. Four authorities are in charge of the permitting procedure: Ministry of Energy, FPS Environment, MUMM, and Flemish planning administration. Offshore cable building permit is delivered by DG Energy within the Federal Ministry of Energy.

 

Rules and procedures have been adapted to stimulate and facilitate the process. The permit system is clearly defined and lasts less than one year.

(Last updated April 9, 2015)

 

Canada

The regulation of offshore renewable energy projects in Canada is a shared responsibility between federal and provincial/territorial governments. Provincial/territorial requirements for project approval can vary across Canada. With regards to federal oversight, all projects must adhere to applicable federal legislation regardless of where the project is located , e.g., Canadian Environmental Assessment Act, 2012 (CEAA 2012); Canadian Environmental Protection Act, 1999; Fisheries Act; Migratory Birds Convention Act; Navigable Waters Protection Act and Species at Risk Act. For information on the type of projects that may trigger a federal environmental assessment under CEAA 2012, refer to the Canadian Environmental Assessment Agency’s website. For a complete list of acts, orders and regulations, refer to Justice Canada’s website.

(Last updated April 9, 2015)

 

China

The 2010 Renewable Energy Law of the People’s Republic of China (Amendment) outlines a policy to accelerate and promote the development of renewable energy projects. The Ministry of Finance launched a special funding program for marine renewable energy projects in 2010. The State Oceanic Administration (SOA) created the Administrative Centre for Marine Renewable Energy (ACMRE) to coordinate and manage the special funding programme for marine renewable energy under the leadership of the Ministry of Finance and SOA. The special funding programme has entered the third round, with a total funding of ¥600 million since 2010. In 2012, the SOA promulgated the National Marine Functional Zoning (2011-2020) to arrange the sea-area utilization including the marine renewable energy devices. The National Energy Administration (NEA) has drafted the 12th Five-Year Plan for Marine Renewable Energy jointly with SOA since 2011.

 

In 2012, China adopted National Marine Functional Zoning for all sea related projects. Ocean energy projects are further required to submit to a bifurcated system, where government investments are put through an “examination and approval system,” while privately funded projects are reviewed with a “ratification system.”

(Last updated April 9, 2015)

 

Denmark

Denmark has adopted an Energy Agreement (Energy Bill) for the period 2012–2020 focused on offshore wind turbines and sea spaces. It does not reserve specific ocean spaces. The Danish Energy Agency (DEA) grants all licenses under the Promotion of Renewable Energy Act for all projects within 200 nautical miles of Denmark. The three required licenses are:

1. License to carry out preliminary investigations.
2. License to establish the offshore project (only given if preliminary investigations show that the project is compatible with the relevant interests at sea).
3. License to exploit the energy source for a given number of years, and an approval of electricity production (given if conditions in license to establish project are kept).

A decision requiring an EIA is made on a case-by-case basis by the Danish Energy Agency and Danish Environmental Agency, which is also the single point of contact to streamline the process.

(Last updated April 9, 2015)

 

Germany

The Federal Maritime and Hydrographic Agency (BSH) is the federal agency overseeing licensing for renewable energy projects in the EEZ based on the Maritime Spatial Plan for the North Sea and the Baltic Sea. The approval procedure has the following steps:

1. Authorities like the regional Waterways and Shipping Directorates and the Federal Agency for Nature Conservation are informed about the project application and asked to comment.
2. Stakeholder and public involvement is encouraged with regard to inspecting the planning documents. A project presentation is offered to the project planner during an application conference.
3. The applicant prepares an Environmental Impact Assessment and a risk analysis to be reviewed by the BSH and granted approval if requirements have been met.

The Infrastrukturplanungsbeschleunigungsgesetz of 2006 obliges the transmission system operator to install the grid connection in its control area and cover the costs for the grid connection. The Federal Energy Regulator (BundesNetzagentur) is in charge of approving applications for an offshore grid on economic grounds.

(Last updated April 9, 2015)

 

Ireland

The Department of Communications, Energy and Natural Resources published its Offshore Renewable Energy Development Plan (OREDP) in 2014, which provides a framework for the sustainable development of Ireland’s offshore renewable energy resources. The OREDP is accompanied by a Strategic Environmental Assessment and Appropriate Assessment (documents can be accessed here). The Sustainable Energy Authority of Ireland (SEAI) plays a pivotal role in transforming Ireland into a society based on sustainable energy structures, technologies and practices and is central to enabling research and development of ocean energy through its Prototype Development Fund and the wave energy test centres on the west coast.

 

A new Maritime Area and Foreshore (Amendment) Bill is expected to be enacted in 2015 will align the foreshore consent system with the planning system in order to streamline the EIA and AA processes for projects. Currently, to deploy a device at sea a developer requires a Foreshore Licence (for non-exclusive and temporary uses) and/or a Foreshore Lease (exclusive and permanent uses) granted by the Minister of the Environment, Community & Local Government. Deployment of an ocean energy device may require an Environmental Impact Assessment depending on its nature, size and location, in accordance with European Union (EU) law and national legislation. Similarly where a development is located in or near a site designated for nature conservation purposes, under the EU Habitats Directive, an Appropriate Assessment may also be required. If a development comprises onshore works (terrestrial) planning permission from the adjoining planning authority (County Council) will be required.

 

Electrical elements of a project are governed by the Electricity Regulation Act, 1999, which requires a developer to obtain a Licence to Generate and Supply Electricity and an Authorisation to Construct or Reconstruct a Generating Station. Processing of these consents is conducted by the Commission for Energy Regulation (CER). In Ireland, the transmission system (high voltage) is operated by EirGrid; a State-owned commercial company. The distribution system (medium and low voltage) is operated by the Electricity Supply Board (ESB), each of whom issue connection offers through competitive leasing rounds. The CER sets the connections policy but has no specific role in how the application process for connection offers is administered.

 

Over-arching energy policy is the responsibility of the Department of Communications, Energy & Natural Resources (DCENR). This includes the Renewable Energy Feed in Tariff (REFIT), the primary means through which electricity from renewable sources is supported in Ireland.

(Last updated April 9, 2015)

 

Italy

Information will be available soon.

(Last updated April 9, 2015)

 

Japan

Information will be available soon.

(Last updated April 9, 2015)

 

Mexico

With no experience in marine energy, there is no specific process that includes licenses, consents or permits for project deployment. Proponents should contact the Secretariat of Environment and Natural Resources and ask for the correct process they should follow to deploy a device in national waters and avoid any Ecological Planning Program. In addition, permission of the local government would be required. It is possible to infer which existing permits and laws would apply to ocean energy projects.

(Last updated April 9, 2015)

 

Monaco

The specific authority responsible for managing the ocean energy consenting process as a whole is the Ministry of Public Works, Environment and Urban Planning. Authorities involved in the consenting process are the Department of the Environment, the Department of Urban Amenities and the Department of Maritime Affairs. There are no specific laws or regulations for ocean energy. An Environmental Impact Assessment (EIA) process is required if the project could affect maritime traffic, or the environment in general.

(Last updated April 9, 2015)

 

New Zealand

Planning and resource consents for all marine energy deployments and developments are judged and approved by regional councils (coastal permits – for offshore and shore crossing activities) and district/city councils (land use permits –for onshore activities). If a project is deemed to be of national significance, there is an alternative process managed by the Environmental Protection Authority (which operates under the Ministry for the Environment).

 

The marine energy deployment fund was set up by the Energy Efficiency and Conservation Authority (EECA) to support the deployment of renewable energy devices.

(Last updated April 9, 2015)

 

Nigeria

The Environmental Impact Assessment Division is charged with the mandate of implementing the provisions of the EIA Acts No. 86 of 1992. The Act requires that proponents (public or private) of major development projects should subject their projects to the provisions of the EIA Acts. The EIA Division is made up of three branches and their activities are as follows:

• Planning, Policy and Registry (PPR) Branch is responsible for the registration of new projects, EIA revenue recording, co-ordination of training, Workshops, conferences, seminars, EIA Budget and the site verification of new projects, etc.
• Evaluation and Analysis Branch (EA) is responsible for EIA scoping, Risk Assessment and the review/evaluation of terms of references and EIA reports
• Impact Mitigation Monitoring (IMM) Branch is responsible for conducting Impact Mitigation Monitoring of approved projects, EIA Auditing and the post Impact Assessment of projects

After an EIA is submitted, and before implementation, statutory consultation is conducted with the Federal Ministry of Environment, stakeholders, communities and other responsible agencies.

(Last updated April 9, 2015)

 

Norway

Marine energy shares policies and programs with more general renewable energy. The 2010 Ocean Energy Bill regulates renewable offshore energy production by requiring licenses to build offshore wind, wave, and tidal farms in certain geographical areas. Licenses are granted through a governmental process where suitable areas are identified and made subject to consequence assessments and then made available for leasing. Projects are publically funded by the Norwegian Energy Agency (ENOVA) and the Research Council of Norway.

(Last updated April 9, 2015)

 

Portugal

In Portugal, the main consent required for marine renewable energy development is the “título de utilização dos recursos hídricos” (licence for the water resources use) and this can be authorised through a licence (projects lasting less than one year or are below or equal to 25 MW) or a concession (projects lasting more than one year or are above 25 MW). In both cases and to initiate the process, the applicant must submit the same pre-application form with the project and site characteristics. In cases where a concession is required for the project, a competitive public examination must be carried out. An Environmental Impact Assessment may be required during this stage of the process.

 

In addition to the licence for the water resources use of the project, a licence for the power production installation is required, which process begins with a pre-application that is submitted by the applicant to the “Direcção Geral de Engenharia e Geologia” (DGEG, Energy and Geology Directorate-General). If the project is to supply power to the grid the developer should apply to the Portuguese Electricity Utility (EDP, Electricidade De Portugal) for a licence and such application must include a map of the project location together with the geographical position of the connection point. If construction of infrastructure on land is required the licence is administered by the municipal council of the area of the project location.

 

The consenting process for wave energy projects in Portugal generally takes no more than 18 months, however this is a conservative estimate and does not include the preparation of the EIA report.

(Last updated April 9, 2015)

 

Republic of Korea

The legal base for offshore energy power production is governed and implemented by different national and domestic authorities. The Ministry of Ocean and Fisheries (MOF) has the Public Waters Management Act & Reclamation Act (Act No. 11690, 2013), which provides a framework for the management of building structures in public waters. An EIA is required.

(Last updated April 9, 2015)

 

Singapore

Information will be available soon.

(Last updated April 9, 2015)

 

South Africa

Ocean energy projects will fall under coastal regulations and energy generation permits. Any power generation plant greater than 100kW needs to obtain a power generator license from NERSA (National Energy Regulator of South Africa), if the plant is to be connected to the national grid, granted at their discretion.

(Last updated April 9, 2015)

 

Spain

In Spain no dedicated consenting process exists for ocean energy technologies. The consenting process is based on three main legal instruments:

1. Law 21/2013, December 9th, on Environmental Impact Assessment. According to this Law, all projects devoted to the production of energy on the marine environment are subject to be evaluated through a simplified environmental impact assessment process.

2. The Coastal Law (28^th July 1988), provides the legal framework for occupation of the territorial sea, as well as governing issues affecting the fishing sector and safety conditions for maritime navigation. Management and surveillance competences relating to the Public Maritime Domain on land (MTPD), which includes the territorial sea, rest with the General Council on Coast and Ocean Sustainability which forms part of the Ministry of Rural, Marine and Natural Environment. Coastal Demarcation Departments are their representatives in each coastal province and Autonomous Community. Therefore, the development of electric power projects in the territorial sea must comply with the legal requirements governing the administrative process for granting titles to territorial occupation (prior to and during project development) and associated arrangements e.g. deadlines, transfers and expiry.

3. Royal Decree 1028/2007 establishes the administrative procedure for processing applications for electricity generating facilities in territorial waters. Although it focuses on offshore wind, it also includes electricity generation from other marine renewable technologies (Article 32). This Decree foresees a simplified procedure governed by Royal Decree 1955/2000 (from 1^st December 2000) regulating energy transport, distribution, commercialisation, supply and the authorisation procedure for electrical power plants. RD 1955/2000 also provides that construction, extension, modification and exploitation of all electric installations listed (in article 111) require the following administrative procedures and sanctions to be followed:

   • Request for Administrative Authorisation (AA): refers to the project’s draft installation plan as a technical document.
   • Project Execution Approval (AEP): refers to the commissioning of the specific project and allows the applicant to start construction.
   • Exploitation Authorisation (EA): allows the installations, once the project is installed, to be powered up and proceed to commercial exploitation.

The total time needed to obtain approval is approximately two years but this timeframe varies between projects. For instance, consenting of the Biscay Marine Energy Platform (bimep), a test platform for research and demonstration of offshore Wave Energy Converters, started in July 2008 and ended in 2012, the concession of marine-terrestrial public domain and the authorisation for project execution. In contrast, the consenting of the Mutriku wave power plant took less than two years as it is located onshore and consequently was subject to the consenting process applicable to an ‘ordinary’ renewable energy plant. The reason for such variability in the time taken to obtain the final consent is attributed to whether an EIA is required or not. Until 2008, the requirement for an EIA of wave and current technologies was decided on a case-by-case analysis in Spain. Since 2013, the new EIA law in Spain (Law 21/2013, December 9^th, on Environmental Impact Assessment) institutes a simplified EIA process to all projects subject to produce energy in the marine environment. Also, the new EIA law in Spain aims to reduce the time scale needed for obtaining the Environmental Authorisation, establishing a time period of no more than 4 months, or 6 months if there are justified reasons, thus significantly reducing the time needed for this consenting process which was about 3 to 24 months according to the 2008 EIA Law.

(Last updated April 9, 2015)

 

Sweden

Several legislative acts lay the foundations for offshore renewable energy in the territorial sea and Exclusive Economic Zones (EEZ) in Sweden:

• The Environmental Act (1989, partially revised in 2009) covers cross-cutting issues – environmental objectives, national areas of interest for MSP, water quality management, and marine research.
• The National Maritime Policy Bill brings the connect of an integrated MSP, specifically the need for evaluation and investigation of current planning and responsibility for the territorial waters, the need for legislation for planning in EEZ and a responsible agency to be created.
• The Planning and Building Act (1987), reinforced by the Act on Technical Requirements for Construction Works (1994).
• The Swedish Economic Zone Act (1994) and the Fishery Act (1982) as amended by subsequent acts.

An application, plus EIA (+ technical documentation etc.) has to be filed with an Environmental Court, after mandatory statutory consultation with the County Administrative Board. The Environmental Court is the final arbiter, deciding whether to grant the permit. Sweden has a new Swedish Agency for Marine and Water Management, which has Efforts in marine spatial planning and may be simplifying consenting processes of offshore energy projects.

 

Additional licenses must be obtained from Svensa Kraftnӓt, who manages the Swedish national grid.

(Last updated April 9, 2015)

 

The Netherlands

Marine renewable energy development requires a license under the Public Works and Water Management Act. The Ministry of Infrastructure and the Environment is authorized to make the decision concerning the granting of the application for the Water Act license.

 

There are several laws and regulations that have to be considered when licenses in the Dutch Exclusive Economic Zone of the North Sea are required:

 

1. Sea Water Pollution Law
2. Environmental Administration Law
3. Spatial Arrangement Law
4. Environmental Protection Law
5. Water Act
6. Wreckage Law
7. Monuments Law
8. Excavation Works Law
9. North Sea Installations Law
10. (Sea) Bottom Protection Law
11. IMO sea lanes.

 

Total time for a decision is up to 6 months from submission. Important elements of the license include 1) construction of the wind farm must be started within 2 seasons after permit issue, 2) a bank guarantee must be given for the decommissioning of the wind farm and 3) it is not allowed to sell the licenses without permission of the minister.

 

The electrical connection point of the wind farm onshore must be discussed with TenneT, the national TSO, in what is effectively an ad hoc process. The permits of the cable route must also applied by and be discussed with the responsible local authorities.

(Last updated April 9, 2015)

 

United Kingdom

Certain jurisdictions in the UK have a modified consenting system. The situation is complex. Variations can be broadly attributed to the governance system in operation with central/federal and sub-national levels of government having different levels of responsibility in different maritime zones.

 

England

Regulatory authority is different compared to other areas in the UK, and authority also varies according to development size. There are two regimes for consenting renewable energy projects in English waters which are ultimately based on the size of a proposed project:

1. National Significant Infrastructure Projects (NSIPs) include those which are greater than 100 MW capacity. The applications for these projects are processed by Planning Inspectorate and recommendations are made to the Secretary of State. The Marine Management Organisation (MMO) is a key consultee in the process and responsible for monitoring compliance and enforcement of Deemed Marine License (DML) conditions.
2. Projects less than 100MW. Marine license is required from the MMO under section 66 of Marine and Coastal Access Act 2009; Section 36 consent (Electricity Act 1989) to build and operate an energy generation site is required for projects greater than 1 MW in 0-12 nm and greater than 50 MW outside 1 nm; Safety Zones under s95 of Energy Act 2004; European Protected Species license.

The Marine Management Organization (MMO) is responsible for planning, licensing, fisheries management, and enforcement functions. The Department of Energy and Climate Change (DECC) is responsible for decommissioning if a requirement under Energy Act 2004 and Local Planning Authority under Town and Country Planning Act.

(Last updated April 9, 2015)

 

Northern Ireland

The Northern Ireland Environmental Agency (NIEA) accepts applications for marine projects through an online system. The general license process is as follows:

• Pre-screening consultation with NIEA;
• Formal EIA screening and scoping (if applicable);
• Preparation of documentation, e.g. Environmental Statement (ES);
• Formal Application;
• Consultation, feedback, and mediation;
• License determination and issuing of license(s) (if needed);
• Management of returns, e.g. monitoring reports;
• Decommissioning (if required)

Some laws that a project must adhere to include the Conservation of Habitats and Species Regulations 2010 (as amended), the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (as amended), and the Water Framework Directive (WFD).

(Last updated April 9, 2015)

 

Scotland

There is a dedicated authority in Scotland, the Marine Scotland Licensing Operations Team, responsible for the oversight of marine renewable energy development.

(Last updated April 9, 2015)

 

Wales

The Marine Management Organization issues marine energy licenses under Part 4 of the Marine and Coastal Access Act 2009 as the single authority. Projects must also attain a European Protected Species (EPS) License, which prohibits deliberate disturbing, capturing, injuring, or destroying any breeding site of resting place of an EPS, issued under Regulation 53(2) of the Conservation Regulations.

 

The local planning authority permits onshore planning and the Department of Energy and Climate Change (DECC) decommissions projects under Energy Act 2004.

(Last updated April 9, 2015)

 

United States of America

The Federal Energy Regulatory Commission (FERC) asserts regulatory jurisdiction over marine and hydrokinetic projects in the United States as an extension of its authority under the Federal Power Act to regulate and license hydroelectric projects on navigable waters (approximately within 3 nautical miles of shore), and on any projects with an onshore grid connection. The Bureau of Ocean Energy Management (BOEM) asserts regulatory jurisdiction over marine projects on the outer continental shelf. Permits are also required from US Army Corps of Engineers (USACE) and US Coast Guard (USCG), with further agency consulting for environmental protection. For more information, view the MHK Regulatory Roadmap.

(Last updated April 9, 2015)