Sec. B-1. 12 MRSA §1862, as amended by PL 2009, c. 270, Pt. B, §1 and c. 316, §§1 to 6 and affected by §7, is further amended to read:
§ 1862. Submerged and intertidal lands owned by State
(1) An offshore wind power project, as defined by Title 38, section 480-B, subsection 6-A or by Title 38, section 482, subsection 8, and with an aggregate generating capacity of 3 megawatts or more;
(2) A community-based offshore wind energy project, as defined by section 682, subsection 19;
(3) A hydropower project, as defined by Title 38, section 632, subsection 3, that uses tidal or wave action as a source of electrical or mechanical power; or
(4) Other development activity that produces electric or mechanical power solely through use of wind, waves, tides, currents, ocean temperature clines, marine biomass or other renewable sources in, on or over the State's coastal waters, as defined by section 6001, subsection 6, to the 3-mile limit of state ownership recognized under the federal Outer Continental Shelf Lands Act, 43 United States Code, Chapter 29, Subchapter III (2009), and that includes both "generating facilities," as defined by Title 35-A, section 3451, subsection 5 and "associated facilities," as defined by Title 35-A, section 3451, subsection 1.
(1) The Except as otherwise provided by subsection 13, the director shall charge the lessee a rent that practically approximates the fair market rental value of the submerged land. The reduction factors and base rate for use categories are as follows:
(a) A reduction factor of 0% with no base rate or rental fee for nonprofit organizations or publicly owned facilities that offer free public use or public use with nominal user fees. Public uses include, but are not limited to, municipal utilities and facilities that provide public access to the water, town wharves, walkways, fishing piers, boat launches, parks, nature reserves, swimming or skating areas and other projects designed to allow or enhance public recreation, fishing, fowling and navigation and for which user fees are used exclusively for the maintenance of the facility;
(b) A reduction factor of 0.1% plus a base rate of $0.025 per square foot for commercial fishing uses of renewable aquatic resources. Commercial uses of renewable aquatic resources include, but are not limited to, facilities that are directly involved in commercial fishing activities. Such facilities include, but are not limited to, fish piers, lobster impoundments, fish processing facilities and floats or piers for the storage of gear;
(c) A reduction factor of 2% for any slip space rented or otherwise made available for private use by commercial fishing boats for a fee;
(d) A reduction factor of 0.2% plus a base rate of $0.05 per square foot for water-dependent commerce, industry and private uses. Water-dependent commerce, industry and private uses other than commercial uses of renewable aquatic resources include, but are not limited to, all facilities that are functionally dependent upon a waterfront location, can not reasonably be located or operated on an upland site or are essential to the operation of the marine industry. Such facilities include, but are not limited to, privately owned piers and docks, cargo ports, private boat ramps, shipping and ferry terminals, tug and barge facilities, businesses that are engaged in watercraft construction, maintenance or repair, aquariums and the area within marinas occupied by service facilities, gas docks, breakwaters and other structures not used for slip space;
(e) A reduction factor of 4% for any slip space rented or otherwise made available for private use for recreational boats for a fee; and
(f) A reduction factor of 0.2% for upland uses and fill located on submerged lands prior to July 1, 2009 and 0.4% for new upland uses and fill after July 1, 2009 plus a base rate of $0.05 per square foot. Upland uses include, but are not limited to, all uses that can operate in a location other than on the waterfront or that are not essential to the operation of the marine industry. These facilities include, but are not limited to, residences, offices, restaurants and parking lots. Fill must include the placement of solid material other than pilings or other open support structures upon submerged lands.
If the director determines that the municipally assessed value of the adjacent upland is not an accurate indicator of the value of submerged land, the director may make adjustments in the municipally assessed value so that it more closely reflects the value of comparable waterfront properties in the vicinity or require the applicant to provide an appraisal of the submerged land. The appraisal must be approved by the director.
For offshore projects where municipally assessed value for the adjacent upland or submerged lands appraisals are unavailable or the director determines that such assessment or appraisals do not accurately indicate the value of the submerged land, the director may establish the submerged lands annual rental rate and other public compensation as appropriate by negotiation between the bureau and the applicant. In such cases the annual rent and other public compensation must take into account the proposed use of the submerged lands, the extent to which traditional and customary public uses may be diminished, the public benefit of the project, the economic value of the project and the avoided cost to the applicant. If the State's ability to determine the values listed in this paragraph or to carry out negotiations requires expertise beyond the program's capability, the applicant must pay for the costs of contracting for such expertise;
(2) After October 1, 1990, the director may revalue all existing rents to full fair market rental value. Rents for all uses except slip space may be adjusted annually as needed over a period not to exceed 5 years until the full fair market rental value is reached. After the full fair market rental value is reached, the director may revalue rents for all uses except slip space every 5 years based on changes in municipally assessed value and programmatic cost adjustments to the base rate. Adjustments to the base rate may not exceed 4% per year. Rents for slip space may fluctuate annually depending on the gross income of the facility;
(3) The Except as otherwise provided by subsection 13, the director may also lease a buffer zone of not more than 30 feet in width around a permanent structure located on submerged or intertidal land, provided that as long as the lease is necessary to preserve the integrity and safety of the structure and that the Commissioner of Marine Resources consents to that lease;
(4) Any existing or proposed lease may be subleased for the period of the original lease for the purpose of providing berthing space for any boat or vessel;
(5) No portion of an existing or proposed lease may be transferred from a person subleasing that portion to provide berthing space for any boat or vessel except for a transfer to heirs upon death of the sublessee holder or a transfer to the original leaseholder subject to terms agreed to by the lessor and sublessee at the time of the sublease. This subparagraph does not apply to any subleasing arrangements entered into before June 15, 1989; and
(6) The director may grant the proposed lease if the director finds that, in addition to any other findings that the director may require, the proposed lease:
(a) Will not unreasonably interfere with navigation;
(b) Will not unreasonably interfere with fishing or other existing marine uses of the area;
(c) Will not unreasonably diminish the availability of services and facilities necessary for commercial marine activities; and
(d) Will not unreasonably interfere with ingress and egress of riparian owners.
The bureau shall adopt rules pertaining to this subparagraph by March 15, 1990.
In making findings pursuant to this subsection regarding a renewable ocean energy project, the director shall adopt all pertinent findings and conclusions in a permit issued for the project pursuant to chapter 206-A or pursuant to Title 38, chapter 3, subchapter 1, article 5-A or 6 or Title 38, chapter 5, subchapter 1, article 1, subarticle 1-B, as applicable, and may condition issuance of a lease for such a project on receipt of all pertinent approvals by the Department of Environmental Protection or the Maine Land Use Regulation Commission, as applicable, and other conditions the director considers reasonable.
The joint standing committee of the Legislature having jurisdiction over submerged lands matters shall review the report and submit a written recommendation regarding the bureau's proposed budget to the joint standing committee of the Legislature having jurisdiction over appropriations and financial affairs on or before March 15th of each year.
(1) The State's coastal waters and submerged lands provide unique and valuable opportunities for development of wind and tidal power and, potentially, other indigenous, renewable ocean energy resources, such as wave power;
(2) Climate change and related degradation or loss of marine resources and related human uses make development of and transition to use of renewable ocean energy resources consistent with sound stewardship of the State's public trust resources;
(3) Proper and efficient functioning of certain generation and associated facilities that use the energy potential of the State's indigenous, renewable ocean energy resources depends upon their deployment in a marine environment and, accordingly, such facilities may to the extent necessary be located in, on or over state-owned submerged lands; and
(4) With appropriate provision for avoidance and minimization of and compensation for harm to existing public trust-related uses and resources, such as fishing and navigation; consideration of potential adverse effects on existing uses of the marine environment; restoration of affected lands upon completion of authorized uses pursuant to permitting criteria; and adequate compensation to the public for use of its trust resources pursuant to state submerged lands leasing criteria, development of these renewable ocean energy resources in appropriate locations promises significant public trust-related benefits to the people of this State for whom the State holds and manages submerged lands and their resources.
(1) No more than 30 days prior to filing applications in accordance with this paragraph, an applicant for a lease or easement for a renewable ocean energy project shall participate in a joint interagency preapplication meeting that includes the Department of Marine Resources and is in accordance with permitting procedures of the Department of Environmental Protection or the Maine Land Use Regulation Commission, as applicable.
(2) An applicant for a lease or easement for a renewable ocean energy project must file and certify to the director that it has filed completed applications for requisite state permits under chapter 206-A or Title 38, chapter 3, subchapter 1, article 5-A or 6 or Title 38, chapter 5, subchapter 1, article 1, subarticle 1-B, as applicable, prior to or concurrently with submission of its submerged lands lease application under this section and shall provide a copy of any such applications to the director upon request.
(3) The director shall provide notice to the Marine Resources Advisory Council under section 6024 and any lobster management policy council established pursuant to section 6447 in whose or within 3 miles of whose designated lobster management zone created pursuant to section 6446 the proposed development is located. The Marine Resources Advisory Council and any lobster management policy council notified pursuant to this subparagraph may provide comments within a reasonable period established by the director, and the director shall consider the comments in making findings pursuant to subsection 2, paragraph A, subparagraph (6).
(4) The director may issue a lease or easement for a hydropower project, as defined in Title 38, section 632, subsection 3, that uses tidal or wave action as a source of electrical or mechanical power, for a term not to exceed 50 years, as long as the lease term is less than or equal to the term of the license for the project issued by the Federal Energy Regulatory Commission.
(5) If requested by an applicant, and with provision for public notice and comment, the director may issue one or more of the following for a renewable ocean energy project prior to issuance of a 30-year lease for the project:
(a) A lease option, for a term not to exceed 2 years, that establishes that the leaseholder, for purposes of consideration of its application for state permit approvals under chapter 206-A or Title 38, chapter 3, subchapter 1, article 5A or 6 or Title 38, chapter 5, subchapter 1, article 1, subarticle 1-B, as applicable, has title, right or interest in a specific area of state submerged lands needed to achieve the purposes of the project as described in conceptual plans in the lease application;
(b) A submerged lands lease, for a term not to exceed 3 years, that authorizes the leaseholder to undertake feasibility testing and predevelopment monitoring for ecological and human use impacts as described in conceptual plans in the lease application and conditioned on receipt of requisite federal, state and local approvals; and
(c) A submerged lands lease, for a term not to exceed 5 years, that authorizes the leaseholder to secure requisite federal, state and local approvals and complete preoperation construction, as long as the applicant provides detailed development plans describing all operational conditions and restrictions.
(6) Except as otherwise provided in this paragraph, the annual rent for a wind energy demonstration project for which a general permit has been issued under Title 38, section 480HH is $10,000 per year for the term of the general permit. The annual rent for a tidal energy demonstration project for which a general permit has been issued under Title 38, section 636A is $100 per acre of submerged lands occupied by the project for the term of the general project, except that the annual rent may not exceed $10,000. As used in this paragraph, "submerged lands occupied" includes the sum of the area on which turbines, testing and monitoring equipment, anchoring or mooring lines, submerged transmission cables or other structures are placed and any additional area from which the director finds it necessary to exclude transient public trust uses to avoid unreasonable interference with the project's purposes. An annual rent is not required for an offshore wind energy demonstration project located in the Maine Offshore Wind Energy Research Center, as designated by the department under section 1868, subsection 2.
(7) The director shall charge a lessee an annual rent in accordance with a fee schedule, established by the bureau by rule, that balances state goals of assurance of fair compensation for use and mitigation of potential adverse effects on or conflict with existing uses of state-owned submerged lands that are held in trust for the people of the State with state renewable ocean energy-related goals, including state wind energy generation goals established in Title 35-A, section 3404, subsection 2. Rules adopted pursuant to this subparagraph are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
(8) The director may not require additional public compensation pursuant to subsection 9.
(9) The director may issue a lease for a buffer zone comprising a land or water area around permanent structures located on submerged or intertidal land if:
(a) The director determines such a buffer zone is necessary to preserve the integrity or safety of the structure or fulfill the purposes of the project; and
(b) The director consults with the Commissioner of Marine Resources regarding the need for such a buffer, its location and size and options to minimize its potential effects on existing uses.
Sec. B-2. 12 MRSA §1863, sub-§3, as repealed and replaced by PL 1999, c. 401, Pt. I, §1, is amended to read:
Sec. B-3. 12 MRSA §1863-A is enacted to read:
§ 1863-A. Renewable Ocean Energy Trust
Sec. B-4. Establishment of fee schedule for renewable ocean energy development projects. No later than one year from the effective date of this section and in accordance with the Maine Revised Statutes, Title 12, section 1862, subsection 13, paragraph B, subparagraph (6), the Department of Conservation, Bureau of Parks and Lands shall amend its submerged lands leasing rules to establish a fee schedule for leasing submerged lands for a renewable ocean energy project as defined in Title 12, section 1862, subsection 1, paragraph F-1 that balances state goals of assurance of fair compensation for use and mitigation of potential adverse effects on or conflict with existing uses of state-owned submerged lands that are held in trust for the people of the State with state renewable ocean energy-related goals, including state wind energy generation goals established in Title 35-A, section 3404, subsection 2. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. Prior to adoption of such a fee schedule, the Director of the Bureau of Parks and Lands shall determine the rent on a case-by-case basis. In developing rules pursuant to this section, the bureau shall:
1. Establish fees that are commercially reasonable and comparable to pertinent lease fees in other jurisdictions both in terms of the fee amounts and provision for a graduated fee schedule that reflects consideration of energy production levels and debt service obligations in the initial years of a renewable ocean energy project;
2. Consider renewable ocean energy-related submerged lands leasing fees in other states; fees provided for by the United States Department of Interior, Minerals Management Service's Renewable Energy Program; current market practices in the wind power industry regarding lease arrangements; and other pertinent information;
3. Include in the fee schedule an amount adequate to cover the bureau's pertinent administrative costs;
4. Allow the developer of a renewable ocean energy project to enter into a contract for sale or use of project-generated power that, through reduced rates or otherwise, provides the State or electric consumers in this State a portion of the dollar value of the pertinent rental fee for use of state submerged lands and obligates the developer to provide monetary payment to the State for the remaining portion of the rental fee as provided in this Act;
5. Consult with and consider the recommendations of the Public Utilities Commission regarding provisions in the rules regarding subsection 4 and related permit terms and conditions for a lease for a renewable ocean energy project;
6. Clarify that potential adverse effects on existing uses, such as fishing, are addressed through the fee schedule and that the bureau may not require case-by-case payment of an amount in addition to rent as compensation for such project-specific effects;
7. Incorporate the annual rent and exemption established in Title 12, section 1862, subsection 13, paragraph B, subparagraph (5); and
8. Otherwise amend its rules for consistency with the provisions of this Act.