U.S. Interior Proposes Renewable Energy Regulations for the Outer Continental Shelf

For the first time since 2009, the U.S. Bureau of Ocean Energy Management (BOEM) is proposing to modernize rules promulgated by its predecessor, the Minerals Management Service (MMS), facilitating the development of wind energy resources on the outer continental shelf (OCS). The 93-page proposed rule, published in the Federal Register Monday, covers decommissioning, geophysical and geotechnical survey submission requirements, approval of meteorological (met) buoys, project verification procedures, and BOEM’s renewable energy auction process, among many others. A related, final rule codifies the division of responsibility between BOEM and another MMS successor, the Bureau of Safety and Environmental Enforcement, as set forth in a December 2020 memorandum of understanding.

Notably, BOEM projects that its proposed modernization will save the renewable energy industry $1 billion over 20 years. Each component of the proposed rule is designed primarily to streamline or clarify the process for development within the OCS and falls into one of eight major categories intended to

1. eliminate unnecessary requirements for the deployment of met buoys, including the site assessment plan
2. increase survey flexibility, including by deferring certain geotechnical survey requirements (e.g., boreholes, vibracores, and other penetrative methods) to allow more time for completion
3. improve project design and installation verification process by revising regulatory language surrounding a certified verification agent’s role to “verification” rather than “certification” of proposed activities’ compliance with safety standards and other requirements set forth in the Outer Continental Shelf Lands Act
4. establish a public renewable energy leasing schedule, which would be published every five years, to provide notice to stakeholders of areas being considered for future lease sales
5. reform BOEM’s renewable energy auction regulations to better address the use of bidding credits, deter potential bidder collusion, outline auction processes and requirements, and specify actions to be taken if a provisional winner fails to meet obligations
6. tailor financial assurance requirements and instruments to better align with actual risk by allowing incremental funding of decommissioning accounts based on BOEM-approved scheduling
7. clarify safety management system regulations to incentivize lessees and grant holders to obtain a safety management certification from an accredited body as a means to reduce the frequency and intensity of regulatory oversight
8. revise other provisions and make technical corrections, including to restructure commercial lease terms into four periods tied to activities required to develop the lease, explicitly allow regulatory departures before and after a lease or grant is issued or made, add specific procedures regarding lease segregation and consolidation, and standardize the annual rental rate per acre across most grants

BOEM seeks public comment on the proposed changes to the regulatory text at 30 C.F.R. Part 585, interpretation of the proposed rule, and specific areas of inquiry for which BOEM has not proposed regulatory text. The specific areas of inquiry include, for example, (i) what threshold should trigger a Construction and Operations Plan revision regarding changes in position or layout of bottom disturbances, (ii) whether there is a need for a future rulemaking to regulate surveys associated with OCS renewable energy activities, and (iii) whether the lease process for research activities warrants amendment. BOEM will accept comments on the proposed rule until Friday, March 31.

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