Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 243
Offshore Wind Worldwide 2023
within Philippine waters may require the
acquisition of water rights.111 All Philippine waters belong to the State,112 and
cannot be the subject of acquisition.
However, the State may allow the use of
water by administrative concession,113
through the issuance of a water permit114 and which is under the regulation
of the National Water Resources Board
(NWRB).115 Like the above agreements,
only Philippine nationals may apply for a
water permit.116
(d) Offshore Wind Facility permanently
fixed to the seabed and within the
territorial sea
Given the foregoing discussion, if the
OSW facility is permanently fixed to the
seabed within the territorial sea, it appears that an FLA or MLA is needed for the
right to use the seabed and/or subsoil
within the Philippine waters. However,
as discussed above, only Philippine nationals are qualified to lease or sublease
under the FLA or MLA. As such, a wholly
owned foreign corporation is not qualified to build an OSW facility fixed to the
seabed within the territorial sea through
an FLA or MLA.
Note, however, that the template
243
OSWESC authorizes the RE developer
to construct machines or other related
equipment that convert wind energy
into useful electrical or mechanical energy and conduct wind energy operations.
This would imply that there would be
no need to acquire a FLA or MLA over
the subsoil or seabed within Philippine Waters and hence, the nationality
restriction on FLA or MLA would not be
relevant. However, this may not be free
from doubt in view of Section 2, Article
XII of the Philippine Constitution.
6.3 OSW plant and grid connection
in the EEZ
Unlike for the use of seawater in Philippine
waters, the NWRB has not issued any rules
and regulations on the use of the seawater
in the EEZ of the Philippines and, as abovediscussed, it does not have jurisdiction
over the use of seawater in the EEZ.117 There
is also no clear administrative guidance
regarding the use and development of the
seabed in the EEZ.
The most applicable is Executive Order
No. 462 (EO 462)118 and its Implementing
Rules and Regulations (EO 462 IRR) which
govern the exploration, development, and
111 This is the view of the DOE and NWRB based on our informal phone inquiry on a no-names basis.
112 Water Code of the Philippines [hereinafter referred to as "Water Code"], Presidential Decree No. 1067, Article 5.
113 Water Code, Article 9.
114 Water Code, Article 13.
115 Water Code, Article 3 and 13.
116 Water Code Implementing Rules and Regulations, Section 2.
117 Id.
118 Enabling Private Sector Participation in the Exploration, Development, Utilization, and Commercialization of Ocean, Solar and Wind Energy Resources
for Power Generation and Other Energy Uses, Executive Order No. 462 (1997) [hereinafter referred to as "EO 462"], as amended by Executive Order No.
232 (2000).
