Energy Policies Influencing Hydrokinetic Energy

An article in the Energy Law Journal by Wellinghoff, Pederson, and Morenoff stated that “global carbon dioxide levels today exceed 380 parts per million, much higher than the 200–300 parts per million experienced in the last 800,000 years” and that “crude oil has sold above 100 dollars per barrel” indicating that the US economy has been increasing the climatic effects of greenhouse gases which has sparked the need for clean energy alternatives. A unique and reliable energy resource is through hydrokinetic energy harnessed by waves, tides, and even ocean currents. This idea was proposed as a new alternative method by the US Department of Energy which created the Water Power Program to organize a plan and direction of new techniques under the Federal Power Act. The Water Power Program is “committed to developing and deploying a portfolio of innovative technologies for clean, domestic power generation from resources such as hydropower, waves, and tides” (About, The development of hydrokinetic technologies for this renewable resource is currently underway but so is “the regulatory framework in which hydrokinetic systems will operate” (Wellinghoff et al.). The Federal Power Act has helped in developing projects on the Outer Continental Shelf (OCS) and is overseen by the US Department of the Interior’s Bureau of Ocean Energy Management (BOEM) and the Federal Energy Regulatory Commission (FERC) which issue “guidelines to clarify jurisdictional responsibilities for marine and hydrokinetic projects” related to “accelerating the development of these energy projects on the OCS” ( The OCS includes “all submerged lands, subsoil, and seabed lying between the seaward extent of the States’ jurisdiction” (, p 2). The Energy Policy Act of 2005 amended parts of the Federal Power Act in order to address energy production in the United States and is the main energy policy related to renewable energy.

According to the Water Power Program, “developing innovative water power technologies…can provide 80 percent of the US electricity needs from clean energy sources by 2035” ( It is known that research in creating these technologies have been completed but testing for commercial use and implementing methods of protecting the biological ecosystems where they will be placed is still in the works. Currently there is no one policy that is specific to this new, expanding clean energy resource, but one is expected to be drafted after gathering statistics on its effects in or on various fields. Until then, the Federal Power Act and its amendments by the Energy Policy Act of 2005 to expand FERC’s oversight to include hydrokinetic projects are the main policies that affect hydrokinetic energy. The most interesting part about these acts, which work hand-in-hand, is that they “require further authorizations within various state agencies under applicable federal laws, such as the Clean Water Act and the Coastal Zone Management Act” (Bertsch, pp 12–13). This makes achieving authorization difficult for birthing hydrokinetic energy companies such as Hydro Alternative Energy, Inc (HAC) to be able to develop technologies and test them in coastal areas because of many other acts. However, companies similar to HAC have overcome this major obstacle and are engineering technologies to harness the energy in ocean currents. The Energy Policy Act of 2005 initially stirred up conflict in appropriating the role of an agency in the regulatory process. The amendment by the Energy Policy Act of 2005 (EPAct) had also “amended the Outer Continental Shelf Lands Acts to allow the Secretary of the Interior to grant leases, easements, and rights-of-way for the production, transportation, or transmission of renewable energy on the OCS” which was delegated to the Minerals Management Service (MMS) (Bertsch, p 13). As a result of this, FERC and the MMS had to create a Memorandum of Understanding (MOU) signed by FERC and the Secretary of the Interior. The Federal Power Act and EPAct allows FERC to issue authorizations such as preliminary permits, project licenses, or exemptions from licensing which are imperative for development. The issuances from FERC can be combined with leases on the Outer Continental Shelf (OCS) hydrokinetic projects authorized by the US Department of the Interior’s Bureau of Ocean Energy Management (BOEM) recognized by the MOU.

Although the Federal Power Act (FPA) requires FERC to regulate hydrokinetic energy development, the FPA also requires hydrokinetic developers who wish to obtain a license to “supply the agency with “satisfactory evidence” of compliance with state laws regarding “appropriation, diversion, and use of water for power purposes” ” (Bertsch, 19). Obtaining just a BOEM lease and no FERC license is possible if the project developers are only conducting limited testing which “do not constitute as “developing electric power” for purposes of the FPA” and meet the other qualifications (, p 3).The FPA and the EPAct may be the policy stimulus for renewable energy and put FERC in charge of regulating hydrokinetic energy projects at the federal level but BOEM must issue additional leases if “ the project will produce or support the production, transportation, or transmission of energy; the project is to be located OCS; and the project involves the temporary or permanent attachment of a structure or device to the seabed” (, p 2 section 2.4). It is fascinating that the FPA and EPAct delegate authority which tries to put rules in place, but in reality there are loopholes which can be found through another US Department branch, BOEM, as long as the proposed project is temporary, experimental, and the energy is not displaced. Avoiding a FERC license would be difficult but not impossible.

With greenhouse gas emissions on the rise in the US, finding an alternative resource is imperative. Hydrokinetics is the innovative source of clean energy that harnesses energy from water sources such as ocean currents and tides. Sadly not enough people know this is a route that is available to them. Under the Federal Power Act, the Federal Energy Regulatory Commission is established to be the main regulator of energy production. The Energy Policy Act of 2005 expands and amends the Federal Power Act in hydropower to delegate FERC in overseeing renewable energy through project development and funding. Both the FPA and EPAct collaborate in developing hydrokinetic technology to eventually replace the US’s current energy source. However the main issues have been the lack of regulations and policies in this new field since there are no statistics on its effect for the US economy, as well as the effects in biological ecosystems in which the projects will be invading. The present energy policies clearly have been growing to accommodate programs such as the Water Power Program developed by the US Department of Energy and will continue to in the future.


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