Ocean CDR Permitting and Regulations 101

Posted on June 28, 2023 by Jasmine Yu

The ocean is a promising tool for carbon dioxide removal (CDR). It covers over 70% of the surface area of the planet, holds about 50 times more carbon than the atmosphere, and can store carbon for millennia at its deepest depths. The ocean removes carbon dioxide from the atmosphere through two main ways: 1) a natural chemical adjustment system: where the seawater absorbs carbon dioxide from the atmosphere, and 2) by photosynthesis of organisms, like seaweed, to remove carbon. Together, this shows that ocean CDR has a substantial ability to scale.

Ocean CDR innovations are in the early stages of research and development, with most innovations occurring in a laboratory setting and some companies conducting early field trials. These efforts are important, but in order to move from the lab to deployment, widespread field tests are necessary to understand and validate the effectiveness in a real ocean environment. Today, real-world ocean CDR tests are nearly impossible to conduct in the U.S. due to unclear regulatory processes and laws. Additionally, situations with existing regulatory frameworks, that may include CDR activities, require an arduous and opaque permitting process. For instance, early field trials in the U.S. are being performed by start-ups like Planetary through wastewater permits, and Vesta through beach restoration. Without changes and clarifications, the current U.S. regulatory processes and laws pose significant challenges for full-scale deployment of ocean CDR and could send U.S. innovators to develop and deploy in countries with more favorable regulatory systems.

We are beginning to see this happen. Planetary, whose technology was originally conceived at the Lawrence Livermore National Labs in California, has focused work in the United Kingdom and Canada, in part due to different in-ocean regulations. A clear and predictable U.S. regulatory process for ocean CDR pathways is needed to ensure that America can lead the world in ocean CDR research, development, and deployment (RD&D).

The ocean’s natural chemical adjustment system removes CO2 from the atmosphere to balance the amount of CO2 in the atmosphere and the ocean. Therefore, with increasing atmospheric CO2, the ocean absorbs more CO2, which leads to ocean acidification, which has impacted ocean health, and has reduced the ability of the ocean to act as a carbon sink. Ocean CDR pathways are a potential method to deacidify the ocean to maintain its crucial role in global carbon sequestration.

Table 1. Comparison of Ocean Carbon Dioxide Removal Pathways

Source: NOAA

*The State of Carbon Removal of 2023 report estimates alkalinity enhancement upper-bound to be 100 Gt CO2 removed per year.

** The mean seawater residence time of alkaline dissolved carbon is about 100,000 years, based on the annual input of alkaline carbon from rivers (0.3 GtC/yr), the alkaline pool of dissolved alkaline carbon resident in the ocean (about 34,000 GtC), and assuming steady state.

The Need for an Ocean CDR Regulatory Framework

There are a number of promising ocean CDR pathways, Table 1 compares the different types of innovations. For a full summary of each ocean CDR and storage pathway explore our Carbon Dioxide Removal 101.

However, there is no legal framework specific to ocean CDR RD&D in the United States. Instead, existing projects are shoehorned into several, often outdated, environmental regulations and laws which regulate other activities – such as aquaculture, wastewater or the dumping of hazardous materials into the ocean. Under these laws, ocean CDR projects would be subject to multiple overlapping permitting processes and other requirements (see the Appendix for details). Additionally, even within this shoehorning approach, different laws apply to different types of ocean CDR projects.

Some technologies may require the installation of structures onto the seafloor in the Outer Continental Shelf (OCS), outlined in Figure 1. Other projects may sink materials to the ocean floor within the U.S. waters but outside the OCS. Each of these pathways is governed by different laws, and innovators lack the clarity needed to proceed with testing. The legal jurisdictions of federal U.S. waters are highlighted in Figure 2, and the locations of existing beach nourishment sites described and presented in the Appendix.

Updates to the regulatory process should be made to ensure timely and transparent regulatory processing while addressing any risks.

Figure 1. Maritime Zones

Source: NOAA

The development of clear and streamlined legal frameworks for ocean CDR is also essential for facilitating a better understanding of appropriate legal safeguards to minimize the risks of potential negative environmental and social outcomes. Clearly defined requirements in these legal frameworks simplify the permitting of projects, reduce uncertainties and risks, and help promote greater confidence among investors, policymakers, project developers, other stakeholders, and the general public.

Figure 2. Map of the Legal Jurisdictions of Federal U.S. Waters

The ocean CDR RD&D regulatory framework could be developed by an interagency rulemaking team to provide comprehensive legal guidance in developing different ocean CDR pathways in U.S. ocean waters. The interagency rulemaking team may comprise experts from federal, state, tribal, and local groups involved in existing ocean regulations, some of which are described in Table 2 and the Appendix.

Table 2. Existing ocean regulations and permitting requirements that may impact scalable deployment of ocean CDR pathways

Ocean CDR testing is already occurring at a small scale in the U.S, early planning for potential large-scale deployment of ocean CDR pathways, by establishing a clear and predictable U.S. regulatory process is necessary to ensure that America can lead the world in ocean CDR research, development, and deployment.

Sources: NASEM, Sabin Center for Climate Change Law reports on Seaweed Cultivation and Ocean Alkalinity.

Implementation of an Ocean CDR Regulatory Framework

Once an ocean CDR RD&D regulatory framework is developed, the responsibility of implementation of the permitting process would benefit from being housed under a single lead federal agency, to ensure a consistent and efficient permitting experience for ocean CDR project researchers and developers. With a designated lead federal agency, permit-seeking applicants would no longer require approval from multiple agencies that may have varied levels of experience on ocean CDR. Additionally, this structure allows the lead federal agency to continuously gain experience to support and update the ocean CDR RD&D permitting process. The lead agency may choose to seek clarification or consultation from other agencies to ensure decisions are made with the most current knowledge of ocean CDR.

Criteria for selecting a lead agency may include extensive experience in ocean regulatory and permitting processes, knowledge about ocean CDR technologies, the capacity to establish and maintain a permitting office for the expanding and evolving ocean CDR industry, and experience with community engagement to establish projects.

Table 3. Agencies Involved in Ocean CDR Research and Permitting

Sources: NETL, ARPA-E> , DOE-EERE, EPA,U.S Naval Research Lab, NOAA , NOAA-mCDR, NOAA-IOOS.

Policy

A variety of ocean CDR pathways aim to effectively maximize the ocean’s carbon removal ability in the early stages of R&D. The development of a streamlined and consolidated legal framework, with the purpose of simplifying the ocean CDR permitting process, would provide clarity to researchers and project developers. Policy priorities in ocean CDR include:

Regulatory Permitting

Interagency Development of a Legal Framework — The Council on Environmental Quality (CEQ) would lead the development of an ocean CDR legal framework to clarify and streamline existing permitting requirements and laws, and coordinate with relevant agencies to access permitting experience and ocean CDR knowledge. Relevant agencies would include the Bureau of Ocean Energy Management (BOEM), the U.S. Coast Guard (USCG), the Environmental Protection Agency (EPA), the Army Corps of Engineers (USACE), the National Oceanic and Atmospheric Administration (NOAA), the Department of Energy (DOE) , and the Department of Defense (DOD).
Implementation of the Legal Framework — The Bureau of Ocean Energy Management (BOEM) would be the lead federal agency to guide the implementation of the ocean CDR legal framework, because of their extensive oceanic permitting experience, that covers the Outer Continental Shelf. Additionally, many ocean CDR pathways may require attachment to the seabed, which is under BOEM’s permitting jurisdiction. BOEM is also currently responsible for developing a regulatory framework for offshore geologic storage of carbon dioxide. BOEM would work in coordination with other federal agencies to ensure the accurate permits are issued to ocean CDR projects.
Resolution of Potential Disputes — CEQ would be the ideal agency to settle disputes between ocean CDR permitting agencies over conflicting interpretations of the ocean CDR legal framework as CEQ would have led the development of the legal framework and best understand the coordination between agencies. A time frame of no longer than 30 days, may be established to resolve any disputes.

Research and Development

Interagency Coordination — DOE & NOAA would be best suited to coordinate ocean CDR research and development. To date, DOE has led the charge in ocean CDR laboratory research. However, to truly understand applied ocean CDR solutions, NOAA must lead in facilitating research and testing in the ocean. Because ocean CDR is a uniquely diverse solution that ranges from engineered to natural solutions, pathways for research and testing, in addition to relevant permitting, are housed under various agencies. As such, it can be difficult to determine ownership among agencies, and DOE, NOAA, DOI, EPA, NSF, and DOD could ensure robust coordination and collaboration across agencies.

Conclusion

Innovations in ocean CDR pathways have the potential to sequester carbon at scale. However, the absence of a clear regulatory framework specific to ocean CDR RD&D in the U.S, results in ocean CDR projects being shoehorned into several, often outdated, environmental regulations and laws which regulate other activities. Policies for the development and implementation of a streamlined and consolidated legal framework, with the purpose of simplifying the ocean CDR permitting process, would provide clarity to researchers and project developers, and ensure that America can lead the world in ocean CDR RD&D.

Appendix

U.S. Laws Relevant to Ocean CDR

The following laws may impact ocean CDR pathways depending on the location of projects (see Figure 1). Projects within state waters, typically up to three nautical miles from the coast, but nine nautical miles from Texas, Florida, and Puerto Rico, may be subject to state and/or local laws. Federal laws will apply to projects in federal waters, up to 200 nautical miles beyond state waters, while some projects may require additional activity on federal lands.

Seabed Use Laws

The Outer Continental Shelf Lands Act (OSCLA) authorizes the BOEM to issue leases for energy and mineral development and related activities on the outer continental shelf (OCS). Currently, there is no framework for leasing the OCS for other purposes, like ocean CDR. The Infrastructure Investment and Jobs Act of 2021 directed BOEM to issue a regulatory framework for offshore geologic storage of carbon dioxide, which has not yet been issued, and it is unclear whether that guidance will address ocean CDR in a comprehensive manner.
Coastal states regulate the use of state waters and generally require a lease for authorization.

Ocean Discharge Laws

The Marine Protection, Research, and Sanctuaries Act (MPRSA) or the “Ocean Dumping Act” requires a permit for discharges from a vessel, aircraft, or manmade structure within 12 nautical miles from the coast and beyond in other areas where the materials dumped are transported from the U.S. or on a U.S. registered vessel or aircraft.
The Clean Water Act (CWA) applies to the discharge of “dredge or fill” materials or “pollutants,” including “rock”, within 3 nautical miles of the U.S. coast.
The National Pollutant Discharge Elimination System (NPDES) regulations, which have authority from the CWA, regulate discharges into the ocean through pipes.

Environmental Review Laws

The National Environmental Policy Act (NEPA) requires the preparation of an environmental impact statement that analyzes the natural, economic, social, and cultural resource effects of the project and alternatives. This must be developed with public input and possibly consultation with Native American Tribes.
State NEPA equivalents, where they exist, will regulate ocean CDR in state waters.

Coastal and Ocean Management Laws

The Coastal Zone Management Act (CZMA) requires federal agency activities that impact the coasts to be consistent with state coastal management plans.
The National Marine Sanctuaries Act (NMSA) impacts projects conducted in, or affects, areas designated as marine sanctuaries.

Species Protection Laws

The Endangered Species Act (ESA) requires federal agencies to ensure actions will not harm the continued existence of any endangered or threatened species.
- Consultation with the U.S. Fish and Wildlife Service is required for any action that could affect land-based species.
- Consultation with the National Marine Fisheries Service is required for any action that could affect marine species.
The Marine Mammal Protection Act (MMPA) prohibits government and private actors from killing, harming, or taking endangered species and marine mammals.
The Magnuson-Stevens Fishery Conservation Management Act (MSFCMA) designates consultation with NMFS if fish habitats may be harmed and establishes regional fisheries councils to develop fisheries management plans designed to restore depleted stocks and set annual catch limits to prevent overfishing.

Other Laws

The National Historic Preservation Act (NHPA) requires federal agencies to consider the impact of projects on historic properties and provide opportunities for comment before implementation from the Advisory Council on Historic Preservation.
The American Indian Religious Freedom Act (AIRFA) protects and preserves American Indian access to sites, use, and possession of sacred objects, and the freedom to worship.

Figure 1. Beach Nourishment Projects in the U.S. Overlaying Federal U.S. Water Jurisdictions

Sources: Marine Cadastre

Beach nourishment is the process of adding large quantities of sand or sediment on a beach or in the nearshore, often to combat erosion and increase beach width. The length of total coastlines with beach nourishment is 962.4 miles. Florida has a fifth (~21%) of all projects. The ocean CDR start-up, Vesta, is implementing a beach nourishment project at North Sea Beach in the Town of Southampton. This project includes Coastal Carbon Capture, to advance climate science research, by placing olivine sand onto the North Sea Beach Colony frontage. Olivine is used for enhanced weathering, because it is a common and naturally occurring silicate material that removes carbon dioxide when it dissolves in water, and permanently stores it in the ocean as carbonate and bicarbonate.