Shared Use of Public Property

Shared Use of Public Property, the Energy Bill

By Charles W. Kleekamp

The issue of private use of public property has often been a focal point of contention regarding Cape Wind’s project in Nantucket Sound. And the issue is not without merit. After all, federal resources belong to all of us. Although Mr. Gordon, President of Cape Wind, has long said that he would pay any future lease cost, his statement alone has not been sufficient to quell the criticism.

So it was sensibly appropriate that a section of the new energy bill signed by President Bush on August 8th established the process for leasing offshore submerged lands for windfarms. It is described in Section 388, known as: “Alternate Energy-Related Uses on the Outer Continental Shelf.”

In this Act, the Secretary [of the Interior] along with other relevant agencies of the Federal Government, is directed to establish fees, rentals, and royalties for any lease, easement or right-of-way granted “to ensure a fair return to the United States [for the] production, transportation, or transmission of energy from sources other than oil and gas.” In other words, from offshore windfarms.

Furthermore, the act will provide for the payment of 27% of the revenues received by the Federal Government to costal states within 15 miles of the geographic center of the project. Meaning, in this case, to Massachusetts for the benefit of its residents.

As for safeguards, this act ensures that any activity is “carried out in a manner that provides for safety, protection of the environment, conservation of the natural resources, and national security interests of the United States.” It will also prevent leaseholder interference with other reasonable uses of the exclusive economic zone thereby insuring a shared use policy. This means recreational boaters and commercial fishermen will be welcome to share the use of Horseshoe Shoal among the turbines.

And finally, the act requires the lease holder to furnish a surety bond to comply with the provisions of the act and to restore the leased area on termination. To restore the site the supporting towers and cables would be pulled out at the end of their useful life or on lease termination thereby returning to its prior condition.

The Secretary must issue the necessary regulations to carry out this act by May 8th, 2006.

The implementation of this federal lease process certainly insures that the public will receive a fair return for the considerate use of Nantucket Sound especially bearing in mind the wind farm is not an extractive industry.

In addition, Cape Wind has already made a host community agreement with the Town of Yarmouth to bring the power transmission cable under the streets to the electrical substation near the Hyannis Airport. The 20 year agreement includes a $2.7 million charitable gift and approximately $6.7 million dollars in taxes.

Clean Power Now certainly feels that these monetary considerations will adequately compensate the public for the shared use of Horseshoe Shoal. For this consideration we will receive the enormous societal benefits of the most benign source of non-polluting electrical energy along with the achievement of a major first step to energy independence.

Charles W. Kleekamp, P.E. Ret., A Director of Clean Power Now

Endnotes to Page and Paragraph References of the Act

Page 1. Short Title (of the Energy Bill): “Energy Policy Act of 2005”Page 460, Section 388. “Alternate Energy-Related Uses on the Outer Continental Shelf.”
460 (1) The Secretary with other relevant agencies may grant a lease, easement, ...
462 (2) Payments and Revenues. The Secretary shall establish royalties, fees, rentals, for any lease...
463 (4) Provision for safety, environment, conservation of natural resources of the outer continental shelf, a fair return to the U. S. for the lease, (I) prevention of interference with reasonable uses (as determined by the Secretary) of the exclusive economic zone,
465 (5) Provision for Lease Duration, Issuance, Transfer, Renewal, Suspension, and Cancellation
465 (6) Require lease holder to “furnish a surety bond to comply with requirements and to provide for the restoration of the lease, easement or right-of-way.”
466 (8) Regulations. Not later than 270 days after enactment of this act the Secretary in consultation with relevant departments and agencies of the Federal Government shall issue any necessary regulation to carry out this subsection [388].
466 (10) Applicability. Does not apply to areas within the boundaries of the National Park System, National Wildlife Refuge System or National Marine Sanctuary System or any National Monument.