The Federal Government issues decree with initial guidelines for offshore wind power generation

2022 Feb.03

On January 25, the Federal Government issued Decree nº 10.946/22, which defined rules regarding the assignment of use of physical spaces and the use of natural resources in inland waters under the Federal Government’s domain, in the territorial sea, in the exclusive economic zone and on the continental shelf for the generation of electric energy from an offshore development.

The need for a regulatory framework that would answer market’s questions regarding implementation rules and concession models to be used in offshore projects had been pointed out as one of the crucial points for the development and exploitation of the offshore electric potential in Brazil.

The decree defines the procedures for requesting the assignment of use and what steps the entrepreneur must follow to carry out the requests for the project with the Federal Government.

The assignment of use can be issued through two different processes:

(i) Planned Assignment, which consists prisms (the vertical area of ​​depth where electric power generation activities can be carried out) previously delimited by the MME offered to interested parties;

(ii) Independent Assignment, which involves the transfer of required prisms, from the Federal Government, to parties interested in exploring the area.

Once the assignment of use is obtained, it will be the contractual obligation of the entrepreneur to carry out the necessary studies to identify the offshore energy potential, and it must meet the criteria and deadlines defined in a specific act of the MME.

As for the electricity generation grant issued by ANNEL, no changes were made, so it must be requested after the studies to identify the generation potential are made and must be requested directly to ANEEL, under the terms of Law No. 9,074, of July 7, 1995.

An interesting feature of the Decree is that, in order to centralize and speed the assignment of use process, the MME foresaw the possibility of ANEEL having the combined competence of granting the assignment of use as well as the electricity generation grant.

However, there are still some questions to be resolved, for example, whether there will be any type of reimbursement or benefit, such as preference in bidding processes, to entrepreneurs who carry out studies to identify the offshore energy potential, but do not obtain the grant for power generation with ANEEL.

Finally, the Decree will enter into force on June 15, 2022 and the MME will have 180 days to edit additional rules from this date, if deemed necessary.

Related attorneys: Maria João C. P. Rolim / Alice de Siqueira Khouri / Vivian Marcondes de Oliveira /