Permitted Ponds-Siting Hurdles for Algae Development

Algae developers are riding a wave of interest due to the single-celled plant's ability to grow rapidly and produce valuable products that can be used to make biodiesel. How industrial algae plants will be configured is yet unknown, but producers will face the same problems as other alternative energy producers-where to put the facility and how to get government permission to build it.
By Jerry Kram | January 15, 2009
It is hard work getting an industrial plant built. Developers need to find a site with easy access to infrastructure for water, power and transportation yet not too close to residential or commercial areas that may object to noise, traffic, odor or any number of other inconveniences. They must then contend with a thicket of agencies, starting with local zoning boards and state pollution control agencies and sometimes even needing federal approvals before they can start pushing dirt and laying foundations. Even then, community residents and outsiders, who may believe they weren't consulted properly can still swoop in and cause more headaches with lawsuits and media campaigns designed to delay or stop a project.

These problems can be magnified when a project is a "first-of-its-kind" facility for what promises to be a booming industry in the future. Algae production for biofuels, biomass, chemicals and other products faces these challenges. Companies pursuing algae production could learn from previous generations of alternative energy production, says Peter Mostow, a partner with Wilson, Sonsini, Goodrich & Rosati, a law firm that works with many clean technology and renewable energy firms.

Mostow says the experience of developing wind power and ocean energy show the importance of siting and permitting in bringing a new industry to commercial-scale production. The two industries started to develop about the same time but, while wind power companies have added thousands of megawatts of capacity in the past two decades, ocean energy has barely gotten out of the starting gate. "Like algae, these were green sources of energy, so you would think they would have the support of environmental regulators," Mostow says. "But what we discovered in getting the first generation of really large-scale wind farms permitted and what we have discovered getting ocean energy projects permitted is that you don't get any breaks just because you're green."

The experience of the first large wind farm in the United States at Altamont Pass, Calif., was important for the future development of wind energy in the U.S. Birds of prey, including eagles and condors were killed in unacceptably large numbers by the whirling windmill blades. Research done at the pass found that taller windmills with larger, therefore slower moving, blades lowered bird mortality significantly. The first of the modern generation of wind turbines were also built largely on private land, allowing them relief from the scrutiny that accompanies projects on government-owned property. "There wasn't all the big-time federal review that has to go on, so people were able to get the local regulators over the unknowns and allow the projects to go forward," Mostow explains. "Altamont Pass was almost like Three Mile Island for the wind industry. But with a combination of good science and some patience, the industry got past the bird kill issue. As a result, we have seen something like 15,000 megawatts of wind energy installed in the past 10 years."

Ocean energy is subject to additional layers of permitting because of the complex and sensitive environment of the oceans, not to mention an additional layer of federal environmental oversight. Study after study has been required to estimate impacts on everything from beaches to marine mammals such as whales and dolphins. "It is completely and unavoidably federal because of the federal control of offshore waters," Mostow says. "You are always going to need an Army Corps of Engineers' 404 permit. You are always going to deal with the Marine Minerals Management Service. You have the Endangered Species Act so you have the National Marine Fisheries Service involved. Their attitude has been that we don't have the science to understand the impacts and nothing will be permitted until we do."

Lessons for Algae
Research and development in algae production has largely been guided down three tracks­-open and covered ponds, photobioreactors and fermenters-with the first two being the most widely pursued. Mostow says the technology an algae production company develops will have a significant impact on the siting and permitting process. Photobioreactors are more likely to be located in industrial zones and fit into regulator's comfort zone. Therefore, Mostow believes, the permitting for those plants is likely to resemble the process for permitting ethanol or biodiesel plants. While permitting for such plants can sometimes be lengthy, it isn't as complicated as getting permission for more extensive facilities. "Traditional ethanol, for example, just isn't that big a deal because it's just been an industrial building done in an industrially zoned area," Mostow says. "It's almost nothing from a permitting context other than the air permits."

"Photobioreactors could look a lot like an ethanol plant or industrial-type facility," Mostow says. "They may not have any special permitting issues at all. They'll need water and have wastewater discharge, similar to ethanol or biodiesel. There may be some level of air emissions, but it just won't be anything different."

While growing algae in ponds may not be as technologically challenging as creating a working photobioreactor, siting and permitting a facility that covers hundreds and possibly thousands of acres could give photobioreactors an advantage at least in the short term. Much of the attention given to developing pond-based algae production in the U.S. has been centered in the Desert Southwest because of its open spaces and intense sunshine. However, deserts are far from just being empty space and are home to many rare and endangered plant and animal species. "Several thousands of acres of ponds will raise a number of issues," Mostow says. "You are going to get the wildlife agencies more concerned with attracting wildlife and increasing mortality. What happens if birds drink the water? Will you have to net the ponds? All of these issues have come up with [permitting] power plants."

Additionally, the federal government owns much of the land in these states, including more than 40 percent of New Mexico, 50 percent of Arizona and 80 percent of Nevada. This means a project of any size is likely to require at least some federal acreage. "It's hard to get a large area for a project without needing some federal land," Mostow says.

The ideal location for a pond-flat and sunny-is also an ideal location for thermal solar electricity production. Thermal solar is a more mature industry than algae, Mostow says, and many of the prime locations have already been leased for solar development. "Solar collectors will take one or two square miles and blanket that area with mirrors or collectors," Mostow says. "So a lot of good spots are completely leased. The solar people are also finding that there are permitting issues with those parcels of land even though they look completely barren. They often have endangered tortoises or fringe-toed lizards or that kind of thing. And when you blanket an area with mirrors or ponds you totally change the ecosystem."

Another problem, which has come up in wind and solar energy development, is that local zoning codes don't anticipate the creation of a new industry. "You often get into the issue of whether some designation in the zoning code-food processing or fish hatchery-covers you or whether you need to amend the code to cover your new kind of facility," Mostow says. "That might be a safer process even if it does take a couple of extra months."

Another concern with locating these ventures in the Southwest is the region's history of contentious water issues. Even projects that tap nonpotable saltwater aquifers will have to deal with wastewater treatment and disposal issues in a region where fast-growing cities such as Las Vegas and Phoenix keep a watchful eye on any threat to the quantity and quality of water available.

Algae ponds also differ from wind power in that it will totally change the land-use pattern, Mostow says. A wind farm requires only a small percentage of the area leased for the actual towers and support structures, allowing existing landowners to continue using the area for ranching, farming or other activities. As with the solar collectors, the land for algae ponds must be nearly fully dedicated to energy production. The practical effect is that developers need to purchase any private land for their facilities rather than leasing development rights from the current landowner. "You may as well buy the land, because nobody will be doing anything else on it," Mostow says.

Another issue facing the development of open ponds is the use of genetically modified strains of algae designed to produce specific products. There are concerns about such organisms being released into the environment, and these concerns are multiplied for open-pond systems compared with keeping the organism isolated in a closed photobioreactor.

Breaking Barriers
While siting and permitting concerns are significant for algae development, Mostow doesn't think they are insurmountable. In fact, algae photobioreactors that are collocated with existing power plants as a carbon dioxide source are likely to have a relatively easy permitting process as much of the infrastructure for the facility will already be in place. "For those kinds of facilities I see permitting as a low barrier to entry," Mostow says. "I don't anticipate that permitting will be a real factor in the growth and development of the technology. The real factor will be does it work?"

Permitting will be a more substantial issue for open-pond facilities. Mostow thinks that the permitting issues for large-scale ponds will be as significant as those for solar thermal collectors and possibly as limiting as ocean energy if federal lands are needed for the project. "Solar thermal is not growing at the same rate that wind energy has," Mostow says. "Part of this is absolutely that there are greater permitting challenges and a lot more of it is on federal land. It is a guess because there isn't an algae industry yet, but I think it will be more in that camp. I would say that is a middle area of permitting difficulty, compared with ocean energy, which has been completely stymied by permitting and federal jurisdiction issues. I don't think algae will have that big of a roadblock."

A final key to keeping permitting problems to a manageable level is working with area residents, communities and decision makers to increase their comfort level with algae development. "There are two things budding algae producers can do, and it is the recipe the wind industry used," Mostow says. "First, understand what the most significant issues will be both in the minds of regulators and citizens in that community. You need to know if you have adequate science to address those issues and understand if they are real or not and act accordingly."

Mostow says the wind industry knew that bird mortality would be the biggest issue and developed new projects and technology to minimize that factor. They also did the science that was necessary to show regulators and the public that the changes they implemented worked.

"No. 2, is practicing engagement with communities early," Mostow says. "I think you can trade on the 'green' aspect, the positive karma if you will, of these projects. But you can only do that if you are out in front of the issue and being proactive. If something comes up that makes it seem like you don't care about it or address it then no one cares if you are a renewable energy source or clean fuel or anything like that. They'll just think you don't care about the environment and then you have lost that chip."

Jerry W. Kram is a Biodiesel Magazine staff writer. Reach him at or (701) 738-4920.
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