Applications for Permits To Site Interstate Electric Transmission Facilities, 2770-2794 [2022-27716]
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Federal Register / Vol. 88, No. 10 / Tuesday, January 17, 2023 / Proposed Rules
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ADDRESSES:
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Parts 50 and 380
[Docket No. RM22–7–000]
Applications for Permits To Site
Interstate Electric Transmission
Facilities
Federal Energy Regulatory
Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Federal Energy
Regulatory Commission proposes to
revise its existing regulations governing
applications for permits to site electric
transmission facilities under section 216
of the Federal Power Act, as amended
by the Infrastructure Investment and
Jobs Act of 2021.
DATES: Comments are due April 17,
2023.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Brandon Cherry (Technical
Information), Office of Energy
Projects, Federal Energy Regulatory
Commission, 888 First Street NE,
Washington, DC 20426, (202) 502–
8328, brandon.cherry@ferc.gov.
Cleo Deschamps (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, (202) 502–8377,
cleo.deschamps@ferc.gov.
SUPPLEMENTARY INFORMATION:
United States of America
Federal Energy Regulatory Commission
Applications for Permits To Site
Interstate Electric Transmission
Facilities Docket No. RM22–7–000
Notice of Proposed Rulemaking
Table of Contents
Paragraph
Nos.
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I. Background ............................................................................................................................................................................................
A. Energy Policy Act of 2005 and FPA Section 216 .......................................................................................................................
B. Order No. 689 ...............................................................................................................................................................................
C. Piedmont & California Wilderness Judicial Decisions ...............................................................................................................
D. IIJA Amendments to FPA Section 216 ........................................................................................................................................
II. Discussion ............................................................................................................................................................................................
A. Commission Jurisdiction and State Siting Proceedings .............................................................................................................
1. IIJA Amendments to FPA Section 216(b)(1)(C) ....................................................................................................................
2. Commencement of Pre-Filing ................................................................................................................................................
B. Eminent Domain Authority and Applicant Efforts To Engage With Landowners and Other Stakeholders ...........................
C. Environmental Justice Public Engagement Plan .........................................................................................................................
D. Other Proposed Revisions to 18 CFR Part 50 .............................................................................................................................
1. Section 50.1—Definitions ......................................................................................................................................................
2. Section 50.3—Filing and Formatting Requirements ............................................................................................................
3. Section 50.4—Stakeholder Participation ..............................................................................................................................
4. Section 50.5—Pre-Filing Procedures ....................................................................................................................................
5. Section 50.6—General Content of Applications ..................................................................................................................
6. Section 50.7—Application Exhibits ......................................................................................................................................
7. Section 50.11—General Permit Conditions ..........................................................................................................................
8. Proposed Clarifying Revisions to 18 CFR Part 50 ................................................................................................................
E. Regulations Implementing NEPA .................................................................................................................................................
1. Tribal Resources Resource Report ........................................................................................................................................
2. Environmental Justice Resource Report ...............................................................................................................................
3. Air Quality and Environmental Noise Resource Report .....................................................................................................
4. Visual Resources ....................................................................................................................................................................
5. Additional Proposed Revisions to 18 CFR 380.16 ...............................................................................................................
6. Proposed Revisions to 18 CFR 380.13 and 380.14 ..............................................................................................................
III. Information Collection Statement ......................................................................................................................................................
IV. Environmental Analysis .....................................................................................................................................................................
V. Regulatory Flexibility Act ...................................................................................................................................................................
VI. Comment Procedures .........................................................................................................................................................................
VII. Document Availability ......................................................................................................................................................................
181 FERC ¶ 61,205
Applications for Permits to Site
Interstate Electric Transmission
Facilities Docket No. RM22–7–000
United States of America
Federal Energy Regulatory Commission
Before Commissioners: Richard Glick,
Chairman; James P. Danly, Allison
Clements, Mark C. Christie, and
Willie L. Phillips.
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(Issued December 15, 2022)
(IIJA) became law.1 The IIJA, among
other things, amended section 216 of the
Federal Power Act (FPA), which
provides for Federal siting of electric
transmission facilities under certain
circumstances. The Federal Energy
1. On November 15, 2021, the
Infrastructure Investment and Jobs Act
1 Public Law 117–58, sec. 40105, 135 Stat. 429
(2021).
Notice of Proposed Rulemaking
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Federal Register / Vol. 88, No. 10 / Tuesday, January 17, 2023 / Proposed Rules
Regulatory Commission (Commission)
proposes to amend its regulations
governing applications for permits to
site electric transmission facilities to
ensure consistency with the IIJA’s
amendments to FPA section 216, to
modernize certain regulatory
requirements, and to incorporate other
updates and clarifications to provide for
the efficient and timely review of permit
applications.
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I. Background
A. Energy Policy Act of 2005 and FPA
Section 216
2. The authority to site electric
transmission facilities has traditionally
resided solely with the States. However,
the August 8, 2005 enactment of the
Energy Policy Act of 2005 (EPAct
2005) 2 established a limited Federal
role in electric transmission siting by
adding section 216 to the FPA. Under
section 216, Federal siting authority for
electric transmission facilities (as
defined in that section) is divided
between the Department of Energy
(DOE) and the Commission. Section
216(a) directs DOE, on a triennial basis,
to conduct a study and issue a report on
electric transmission congestion and
permits DOE to designate certain
transmission-constrained or congested
geographic areas as national interest
electric transmission corridors (National
Corridors). Section 216(b) authorizes the
Commission in certain instances to
issue permits for the construction or
modification of electric transmission
facilities in areas that DOE has
designated as National Corridors.
3. As originally enacted in EPAct
2005, section 216(b)(1) authorized the
Commission to issue permits to
construct or modify electric
transmission facilities in a National
Corridor if it found that: (A) a State in
which such facilities are located lacks
the authority to approve the siting of the
facilities or consider the interstate
benefits expected to be achieved by the
proposed construction or modification
of transmission facilities in the State; 3
(B) the permit applicant is a
transmitting utility but does not qualify
to apply for a permit or siting approval
in a State because the applicant does not
serve end-use customers in the State; 4
or (C) a State commission or entity with
siting authority has withheld approval
of the facilities for more than one year
after an application is filed or one year
after the designation of the relevant
National Corridor, whichever is later, or
2 Public Law 109–58, sec. 1221, 119 Stat. 594
(2005) (amended 2021).
3 16 U.S.C. 824p(b)(1)(A) (2018).
4 Id. 824p(b)(1)(B) (2018).
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the State conditions the construction or
modification of the facilities in such a
manner that the proposal will not
significantly reduce transmission
congestion in interstate commerce or is
not economically feasible.5
4. In addition, before issuing a permit,
sections 216(b)(2) through (6) required
the Commission to find that the
proposed facilities: (1) will be used for
the transmission of electricity in
interstate commerce; (2) are consistent
with the public interest; (3) will
significantly reduce transmission
congestion in interstate commerce and
protect or benefit consumers; (4) are
consistent with sound national energy
policy and will enhance energy
independence; and (5) will maximize, to
the extent reasonable and economical,
the transmission capabilities of existing
towers or structures.6
5. Section 216(e) authorized a permit
holder, if unable to reach agreement
with a property owner, to use eminent
domain to acquire the necessary rightof-way for the construction or
modification of transmission facilities
for which the Commission has issued a
permit under section 216(b).7 Federal
and State-owned land was expressly
excluded from the purview of section
216(e) and thus could not be acquired
via eminent domain.8
6. Section 216(h)(2) designated DOE
as the lead agency for purposes of
coordinating all Federal authorizations
and related environmental reviews
needed to construct proposed electric
transmission facilities. To ensure timely
and efficient reviews and permit
decisions, under section 216(h)(4)(A),
DOE is required to establish prompt and
binding intermediate milestones and
ultimate deadlines for all Federal
reviews and authorizations required for
a proposed electric transmission
facility.9 Under section 216(h)(5)(A),
DOE, as lead agency, in consultation
with other affected agencies, is required
to prepare a single environmental
review document that would be used as
the basis for all decisions for proposed
projects under Federal law.
7. On May 16, 2006, the Secretary of
DOE delegated to the Commission
authority to implement parts of section
216(h), specifically paragraphs (2), (3),
5 Id.
824p(b)(1)(C) (2018).
U.S.C. 824p(b)(2)–(6) (as amended by IIJA
section 1221).
7 Id. 824p(e)(1).
8 Id.
9 Under FPA section 216(h)(6)(A), if any agency
has denied a Federal authorization required for a
transmission facility, or has failed to act by the
deadline established by the Secretary of DOE, the
applicant or any State in which the facility would
be located may file an appeal with the President.
6 16
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(4)(A)–(B), and (5), for the proposed
transmission facilities in designated
National Corridors for which an
applicant has applied to the
Commission for issuance of a permit
under section 216(b).10 Specifically, the
Secretary delegated DOE’s lead agency
responsibilities to the Commission for
the purposes of coordinating all
applicable Federal authorizations and
related environmental reviews and
preparing a single environmental review
document for proposed facilities under
the Commission’s siting jurisdiction.11
8. As discussed further below, the IIJA
amended certain provisions of section
216 that pertain to the Commission’s
permitting authority.
B. Order No. 689
9. Section 216(c)(2) of the FPA
required the Commission to issue rules
specifying the form of, and the
information to be contained in, an
application for proposed construction or
modification of electric transmission
facilities in National Corridors, and the
manner of service of notice of the permit
application on interested persons.
Pursuant to this statutory requirement,
on November 16, 2006, the Commission
issued Order No. 689, which
implemented new regulations for
section 216 permit applications by
adding part 50 to the Commission’s
regulations.12 In addition, Order No.
689 adopted certain modifications to the
Commission’s regulations implementing
the National Environmental Policy Act
of 1969 (NEPA) in part 380 to ensure
that the Commission is provided
sufficient information to conduct an
environmental analysis of a proposed
electric transmission project.
10. In Order No. 689, the Commission
addressed a question of statutory
interpretation raised by commenters
concerning the text of section
216(b)(1)(C), which, at the time,
conferred jurisdiction to the
Commission whenever a State had
withheld approval of a State siting
10 See
DOE Delegation Order No. 00–004.00A.
Congress has provided the authority to
establish prompt and binding milestones and
deadlines for the review of, and Federal
authorization decisions relating to, facilities
proposed under section 216, 16 U.S.C.
824p(h)(4)(A), efficient processing of applications
will depend upon agencies complying with the
established milestones and deadlines.
12 Regulations for Filing Applications for Permits
to Site Interstate Elec. Transmission Facilities,
Order No. 689, 71 FR 69440 (Dec. 1, 2006), 117
FERC ¶ 61,202 (2006) (Order No. 689 Final Rule),
reh’g denied, 119 FERC ¶ 61,154 (2007) (Order No.
689 Rehearing Order).
11 While
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application for more than one year.13
The Commission interpreted the phrase
‘‘withheld approval’’ to include any
action that resulted in an applicant not
receiving State approval within one
year, including a State’s express denial
of an application to site transmission
facilities.14
National Corridor designations under
NEPA.21
13. Since the Ninth Circuit decision
in 2011, DOE has not designated any
National Corridors, and the Commission
has not received any applications for
permits to site electric transmission
facilities.
C. Piedmont & California Wilderness
Judicial Decisions
D. IIJA Amendments to FPA Section 216
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11. In 2009, the U.S. Court of Appeals
for the Fourth Circuit (Fourth Circuit),
in Piedmont Environmental Council v.
FERC,15 held that the Commission’s
interpretation of ‘‘withheld approval’’
was contrary to the plain meaning of the
statute, and that the Commission’s
permitting authority does not apply
when a State has affirmatively denied a
permit application within the one-year
deadline.16 In addition, the Fourth
Circuit vacated the Commission’s
transmission-related amendments to its
regulations implementing NEPA,
finding that the Commission had failed
to consult with the Council on
Environmental Quality (CEQ) before
adopting the revisions.17
12. Two years later, the U.S. Court of
Appeals for the Ninth Circuit (Ninth
Circuit), in California Wilderness
Coalition v. DOE, considered petitions
for review challenging DOE’s actions
following the enactment of section
216.18 In August 2006, DOE had issued
a Congestion Study, which identified
two critically congested areas in the
Mid-Atlantic and Southern California.19
Based on the results of the Congestion
Study, in October 2007, DOE formally
designated two National Corridors, the
Mid-Atlantic and the Southwest Area
Corridors.20 The Ninth Circuit vacated
DOE’s Congestion Study and National
Corridor designations, finding that the
agency: (1) failed to properly consult
with affected States in preparing the
Congestion Study, as required by
section 216; and (2) failed to consider
the environmental effects of the
13 Order No. 689 Final Rule, 117 FERC ¶ 61,202
at PP 24–31; Order No. 689 Rehearing Order, 119
FERC ¶ 61,154 at PP 7–23.
14 Order No. 689 Final Rule, 117 FERC ¶ 61,202
at P 26; Order No. 689 Rehearing Order, 119 FERC
¶ 61,154 at P 11.
15 558 F.3d 304 (4th Cir. 2009), cert. denied, 558
U.S. 1147 (2010) (Piedmont).
16 Id. at 313.
17 Id. at 319, 320.
18 631 F.3d 1072 (9th Cir. 2011) (California
Wilderness).
19 Id. at 1081 (citing National Electric
Transmission Congestion Study, 71 FR 45047 (Aug.
8, 2006)).
20 Id. at 1083 (citing National Electric
Transmission Congestion Report, 72 FR 56992 (Oct.
5, 2007)).
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14. On November 15, 2021, the IIJA
amended section 216 of the FPA. As
relevant to the Commission’s permitting
authority, the IIJA amended section
216(b)(1)(C) by deleting the phrase
‘‘withheld approval’’ and by
incorporating revisions to the statutory
text. As amended, section 216(b)(1)(C)
provides that the Commission’s
permitting authority is triggered when a
State commission or other entity with
authority to approve the siting of the
transmission facilities: (i) has not made
a determination on an application by
one year after the later of the date on
which the application was filed or the
date on which the relevant National
Corridor was designated; (ii) has
conditioned its approval such that the
proposed project will not significantly
reduce transmission capacity
constraints or congestion in interstate
commerce or is not economically
feasible; or (iii) has denied an
application.22 This statutory
amendment resolves the jurisdictional
issue at the heart of Piedmont by giving
the Commission permitting authority
when a State has denied an
application.23
15. Additionally, the IIJA amended
section 216(e), which grants a permit
holder the right to acquire the necessary
right-of-way by eminent domain.24 As
amended, section 216(e)(1) requires the
Commission to determine, as a
precondition to such eminent domain
authority, that a permit holder has made
good faith efforts to engage with
landowners and other stakeholders early
in the applicable permitting process.25
16. With respect to DOE’s authority,
the IIJA amended section 216(a)(2) to
expand the circumstances under which
DOE may designate a National Corridor.
In addition to geographic areas currently
experiencing transmission capacity
constraints or congestion that adversely
affects consumers, DOE may designate
National Corridors in geographic areas
expected to experience such constraints
or congestion. The IIJA also amended
21 Id.
at 1096, 1106.
U.S.C. 824p(b)(1)(C) (as amended by IIJA
section 1221).
23 Id. 824p(b)(1)(C)(iii).
24 Id. 824p(e)(1).
25 See id.
22 16
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section 216(a)(4) to expand the factors
that DOE may consider in determining
whether to designate a National
Corridor.
II. Discussion
A. Commission Jurisdiction and State
Siting Proceedings
17. Section 216(b)(1)(C) of the FPA
addresses instances where a State
commission or other State entity with
authority to site transmission facilities
has acted, or has failed to act, triggering
the Commission’s jurisdiction. Below,
the Commission proposes to revise
§ 50.6 of its regulations to reflect the
IIJA’s amendments to section
216(b)(1)(C) and announces a policy
change with respect to the
commencement of the Commission’s
pre-filing process for cases where the
Commission’s jurisdiction rests on
section 216(b)(1)(C).
1. IIJA Amendments to FPA Section
216(b)(1)(C)
18. As discussed above, the IIJA
amended FPA section 216(b)(1)(C) by
revising the statutory text to expressly
state that the Commission may issue a
permit for the construction or
modification of electric transmission
facilities in National Corridors if a State
has denied an applicant’s request to site
transmission facilities.26 Therefore, the
Commission proposes to revise § 50.6 of
its regulations, which describes the
information that is required in each
application filed pursuant to our part 50
regulations. As relevant here, § 50.6(e)
requires the applicant to demonstrate
that its proposed project would satisfy
the requirements of section 216(b)(1)
through (6). To reflect the IIJA’s
amendments to section 216(b)(1)(C), the
Commission proposes corresponding
revisions to § 50.6(e)(3) to provide that
the applicant is required to submit
evidence demonstrating that a State has:
(i) not made a determination on an
application; (ii) conditioned its approval
in such a manner that the proposed
facilities would not significantly reduce
transmission capacity constraints or
congestion in interstate commerce or is
not economically feasible; or (iii) denied
an application.
2. Commencement of Pre-Filing
19. The Commission has recognized
that Congress, in enacting section 216 of
the FPA, adopted a statutory scheme
that allows simultaneous State and
Commission siting processes.27 As
explained in Order No. 689, the statute
26 See
supra P 14.
No. 689 Final Rule, 117 FERC ¶ 61,202
27 Order
at P 19.
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provides for this potential overlap by
allowing the Commission to issue a
permit one year after the State siting
process has begun and requiring an
expeditious pre-application mechanism
for all permit decisions under Federal
law.28 Thus, the Commission has
recognized that our pre-filing process
can occur at the same time as
simultaneous State proceedings.29
20. Notwithstanding that the statute
allows simultaneous State and Federal
proceedings, the Commission in the
preamble to Order No. 689 announced
a policy that, in cases where its
jurisdiction rests on section
216(b)(1)(C),30 the pre-filing process
would not commence until one year
after the relevant State applications
have been filed.31 This approach, the
Commission explained, would provide
the States one full year to process an
application without any intervening
Federal proceedings, including both the
pre-filing and application processes,
after which time an applicant might
seek to commence the Commission’s
pre-filing process.32 However, the
Commission noted that it would
reconsider this issue if it later
determined that requiring applicants to
wait one year before commencing the
Commission’s pre-filing process was
delaying projects or otherwise not in the
public interest.33
21. We are now reconsidering that
policy. To ensure that permit applicants
receive as timely a decision as possible
from the Commission, we propose to
eliminate the one-year delay before the
Commission’s pre-filing process may
commence. The purpose of the prefiling process is to facilitate maximum
participation from all stakeholders to
provide them with an opportunity to
present their views and
recommendations with respect to the
environmental impacts of the facilities
early in the planning stages of the
proposed facilities. In addition to
gathering stakeholder input, during the
pre-filing process Commission staff will
work with the applicant to ensure the
applicant has compiled the necessary
information for a complete application
under §§ 50.6 and 50.7,34 and begin our
coordination with other agencies as
required under section 216(h).35
28 Id.
29 Id.
30 In Order No. 689, the Commission explained
that in all other instances, the pre-filing process
may be commenced at any time. Id. P 21 n.14.
31 Id. P 21.
32 Id.
33 Id.
34 Id.
35 16 U.S.C. 824p(h); DOE Delegation Order No.
00–004.00A.
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Therefore, to encourage the
development of needed transmission
infrastructure and to minimize the risk
of delays, we propose to allow
simultaneous processing of State
applications and Commission pre-filing
proceedings.
22. The Commission continues to
recognize the primacy of the States’ role
in siting transmission infrastructure but,
as discussed, believes that allowing for
simultaneous processing could facilitate
a more efficient process. In addition, we
note that, the applicant could
potentially collect information that is
relevant to both State and Federal
proceedings only once, avoiding the
need to re-do or update analysis needed
to meet Federal permit requirements.
While states and other interested
stakeholders are free to submit
information in the pre-filing process,
they are under no obligation to
participate and will not waive any rights
or otherwise be prejudiced if they
choose not to do so. No rights are
adjudicated in the pre-filing process,
nor are findings of fact made. The prefiling process is intended to facilitate
the development of a complete
application that can be acted upon
expeditiously.
23. Though the statute does not limit
when the Commission’s pre-filing
process may begin, the Commission
intends to entertain requests to
commence pre-filing, and may grant
such requests, at any time after the
relevant State applications have been
filed. However, out of respect for State
siting processes, the Commission
proposes to provide an additional
opportunity for State input before we
determine that the pre-filing process is
complete and that an application may
be filed. Specifically, one year after the
commencement of the Commission’s
pre-filing process, if a State has not
made a determination on an application,
we propose to provide a 90-day window
for the State to provide comments on
any aspect of the pre-filing process,
including any information submitted by
the applicant. We also seek comment on
the advantages or disadvantages of the
Commission entertaining requests to
commence the pre-filing process before
a State application has been filed.
B. Eminent Domain Authority and
Applicant Efforts To Engage With
Landowners and Other Stakeholders
24. As described above, the IIJA
amended FPA section 216(e)(1) to
require the Commission to determine, as
a precondition to receiving eminent
domain authority, that the permit holder
has made good faith efforts to engage
with landowners and stakeholders early
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in the permitting process.36 Therefore,
the Commission proposes to
supplement the existing landowner and
stakeholder participation provisions in
part 50 of its regulations.
25. Section 50.4 of the regulations
requires the applicant to develop and
file a Project Participation Plan early in
the pre-filing process and to distribute,
by mail and newspaper publication,
project participation notices early in
both the pre-filing and application
review processes. Specifically, under
§ 50.4(a), the Project Participation Plan
must: (1) identify specific tools and
actions to facilitate stakeholder
communications and public
information; (2) list locations
throughout the project area where the
applicant will provide copies of all
project filings; and (3) explain how the
applicant intends to respond to requests
for information from the public and
other entities. Under § 50.4(c), the
project participation notices must
provide a range of information on the
proposed project and permitting
process, including a general description
of the property an applicant would need
from an affected landowner and a brief
summary of what rights an affected
landowner has at the Commission and
in proceedings under the eminent
domain rules of the relevant State.
26. To address the IIJA’s amendment
to section 216(e)(1), we propose to
supplement the regulatory requirements
in § 50.4 by adding a new § 50.12. Under
proposed § 50.12, an applicant may
demonstrate that it has met the statutory
good faith efforts standard by complying
with an Applicant Code of Conduct in
its communications with affected
landowners. The Applicant Code of
Conduct in proposed § 50.12(a) includes
particular recordkeeping and
information-sharing requirements for
engagement with affected landowners,
as well as more general prohibitions
against certain misconduct in such
engagement. For example, an applicant
that chooses to comply with the
Applicant Code of Conduct set forth in
proposed § 50.12(a) must: retain an
affected landowner contact log; provide
affected landowners with certain
information about the project and the
Commission; ensure communications
with affected landowners are factually
correct, devoid of misrepresentation,
and respectful; obtain affected
landowner permission to enter property
and leave when asked; and, if
applicable, provide an affected
landowner with a copy of any appraisal
36 16 U.S.C. 824p(e)(1) (as amended by IIJA
section 1221).
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prepared by, or on behalf of, the
applicant for that landowner’s property.
27. Under proposed § 50.12(b)(1), an
applicant that chooses to show good
faith by complying with the Applicant
Code of Conduct must file, as part of the
pre-filing request required under
§ 50.5(c), an affirmative statement
indicating its intent to comply with the
Applicant Code of Conduct. Under
proposed § 50.12(b)(2), such an
applicant must, as part of the monthly
status reports required under § 50.5(e),
demonstrate compliance by: (i)
affirming that the applicant and its
representatives have complied with the
Applicant Code of Conduct; or (ii)
explaining any instances of noncompliance during the relevant month
and any remedial actions taken or
planned. Under proposed § 50.12(b)(3),
an applicant must also identify any
known instances of non-compliance that
were not disclosed in prior monthly
status reports and explain any remedial
actions taken to remedy such instances
of non-compliance.
28. We emphasize that voluntary
compliance with the Applicant Code of
Conduct is one way, but not the only
way, that an applicant may demonstrate
that it has met the ‘‘good faith efforts’’
standard in section 216(e)(1). However,
we believe that the Applicant Code of
Conduct reflects principles that are
broadly relevant to determining whether
an applicant has made good faith efforts
to engage with landowners and other
stakeholders early in the applicable
permitting process. We propose to
require under § 50.12 that an applicant
that chooses not to rely on compliance
with the Applicant Code of Conduct
must specify its alternative method of
demonstrating that it meets the good
faith efforts standard, including any
specific commitments to record-keeping
and information-sharing. The applicant
must explain how its alternative method
is equal to or superior to compliance
with the Applicant Code of Conduct as
a means to ensure the good faith efforts
standard is met. The applicant should
specifically explain, for each deviation
from the Applicant Code of Conduct in
its alternative method, its reasoning for
not following that provision of the
Applicant Code of Conduct and why the
alternative method is an equal or better
means to ensure the good faith standard
is met notwithstanding that deviation.
29. An applicant bears the burden of
demonstrating it has met the good faith
efforts standard in a permit application
proceeding. For an applicant that elects
to rely on compliance with the
Applicant Code of Conduct, the
Commission will assess ‘‘good faith
efforts’’ by evaluating whether evidence
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in the record shows the applicant
substantially complied with the
provisions of the Applicant Code of
Conduct in its engagement with
landowners and other stakeholders. For
an applicant that elects to rely on an
alternative method to show good faith
efforts, the Commission will first assess
whether the applicant’s alternative
method is equal to or superior to the
Applicant Code of Conduct as a means
to ensure the good faith efforts standard
is met. If so, the Commission will then
assess ‘‘good faith efforts’’ by evaluating
whether evidence in the record shows
the applicant substantially complied
with the commitments of its alternative
method.
C. Environmental Justice Public
Engagement Plan
30. As described above, applicants are
currently required by § 50.4(a) to
develop and file a Project Participation
Plan early in the pre-filing process. This
requirement is intended to facilitate
stakeholder communication and the
dissemination of public information
about the proposed project. Consistent
with that goal, we believe that
applicants should, early in the pre-filing
process, meaningfully engage with
potentially affected environmental
justice communities. As discussed in
this notice of proposed rulemaking
(NOPR), the term ‘‘environmental
justice community’’ includes
disadvantaged communities that have
been historically marginalized and
overburdened by pollution.37 The term
also includes, but may not be limited to,
minority populations, low-income
populations, or indigenous peoples.38
Applicants will identify potential
environmental justice communities
using the identification methods
consistent with current Commission
practice.39 This engagement would be
37 E.O.
14008, 86 FR 7619, § 219 (Jan. 27, 2021).
EPA, EJ 2020 Glossary (Aug. 18, 2022),
https://www.epa.gov/environmentaljustice/ej-2020glossary.
39 To identify potential environmental justice
communities, Commission staff uses current U.S.
Census American Community Survey data for the
race, ethnicity, and poverty data at the State,
county, and block group level. As recommended in
Promising Practices, the Commission currently uses
the fifty percent and the meaningfully greater
analysis methods to identify minority populations.
Specifically, a minority population is present where
either: (1) the aggregate minority population of the
block groups in the affected area exceeds 50
percent; or (2) the aggregate minority population in
the block group affected is 10 percent higher than
the aggregate minority population percentage in the
county. Environmental Protection Agency (EPA),
Promising Practices for EJ Methodologies in NEPA
Reviews (Mar. 2016) (Promising Practices), https://
www.epa.gov/sites/default/files/2016-08/
documents/nepa_promising_practices_document_
2016.pdf. The Commission intends to review and
38 See
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consistent with: (1) Executive Order
12898, which directs Federal agencies to
identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority and lowincome populations (i.e., environmental
justice communities); 40 (2) Executive
Order 14008, which directs agencies to
develop ‘‘programs, policies, and
activities to address the
disproportionately high and adverse
human health, environmental, climaterelated and other cumulative impacts on
disadvantaged communities, as well as
the accompanying economic challenges
of such impacts;’’ 41 (3) Executive Order
13985, which requires Federal agencies
to conduct Equity Assessments to
identify and remove barriers to
underserved communities and ‘‘to
increase coordination, communication,
and engagement with community-based
organizations and civil rights
organizations;’’ 42 and (4) the
Environmental Protection Agency’s
(EPA) Promising Practices report.43 This
engagement would also be consistent
with the Commission’s Equity Action
Plan adhering to Executive Order 13985,
which promotes equitable processes and
outcomes for underserved communities,
incorporate any updated guidance from CEQ and
EPA in our future analyses, as appropriate. Using
Promising Practices’ low-income threshold criteria
method, Commission staff currently identifies lowincome populations as block groups where the
percent of a low-income population in the
identified block group is equal to or greater than
that of the county. We recognize that CEQ and EPA
are in the process of updating their guidance and
recommendations regarding environmental justice.
We expect applicants to utilize the latest guidance
and data from CEQ, EPA, the Census Bureau, and
other authoritative sources. The Commission
intends to update our methods for identifying
potential environmental justice communities
following review of any updated environmental
justice guidance and recommendations from CEQ
and EPA, as appropriate.
40 E.O. 12898, 59 FR 7629 (Feb. 16, 1994).
Minority populations are those groups that include:
American Indian or Alaskan Native; Asian or
Pacific Islander; Black, not of Hispanic origin; or
Hispanic. CEQ, Environmental Justice: Guidance
Under the National Environmental Policy Act at 25
(Dec. 1997) (CEQ’s Environmental Justice
Guidance), https://www.energy.gov/sites/default/
files/nepapub/nepa_documents/RedDont/G-CEQEJGuidance.pdf.
41 E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
42 E.O. 13985, 86 FR 7009, 7010–11 (Jan. 25,
2021).
43 EPA, Promising Practices for EJ Methodologies
in NEPA Reviews (Mar. 2016), https://www.epa.gov/
sites/default/files/2016-08/documents/nepa_
promising_practices_document_2016.pdf
(Promising Practices). The report includes guiding
principles aimed at, among other things, early and
meaningful engagement with minority populations,
low-income populations, and other interested
individuals, communities, and organizations in the
NEPA process.
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including environmental justice
communities, at the Commission.44
31. Therefore, the Commission
proposes to require applicants to
develop and file an Environmental
Justice Public Engagement Plan as part
of their Project Participation Plan under
§ 50.4(a)(4). The Environmental Justice
Public Engagement Plan must describe
the applicant’s completed and planned
outreach activities that are targeted to
identified environmental justice
communities. The plan must also
summarize comments received from
potentially impacted environmental
justice communities during any
previous outreach activities, if
applicable, and describe planned
outreach activities during the permitting
process, including efforts to identify,
engage, and accommodate non-English
speaking groups or linguistically
isolated communities. The plan should
also describe the manner in which the
applicant will reach out to
environmental justice communities
about potential mitigation.45
D. Other Proposed Revisions to 18 CFR
Part 50
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1. Section 50.1—Definitions
32. Section 50.1 sets forth the
definitions for part 50 of the
Commission’s regulations. The
Commission proposes to add a
definition for the term ‘‘Indian Tribe’’
for consistency with its regulations
governing other types of energy
infrastructure projects.46 Specifically,
the Commission proposes to define the
term ‘‘Indian Tribe’’ as a Tribe that is
recognized by treaty, by Federal statute,
or by the U.S. Department of the Interior
in its periodic publication of Tribal
governments.47 We also propose to add
a definition for the term ‘‘environmental
justice community’’ to assist applicant
compliance with the requirement in
proposed § 50.4(a)(4) that an applicant
develop and file an Environmental
Justice Public Engagement Plan.48
Specifically, the Commission proposes
44 FERC, Equity Action Plan (2022), https://
www.ferc.gov/equity.
45 We note that the Environmental Justice
Resource Report, discussed further below, would
require the applicant to describe any proposed
mitigation measures intended to avoid or minimize
impacts on environmental justice communities,
including any community input received on the
proposed mitigation measures and how that input
informed such measures. See infra P 65.
46 See, e.g., 18 CFR 4.30(b)(10) (2021) (defining
‘‘Indian Tribe’’ in reference to an application for a
license or exemption for a hydropower project) and
18 CFR 157.1 (defining ‘‘Indian Tribe’’ in reference
to an application for a certificate of public
convenience and necessity for a natural gas pipeline
project).
47 25 CFR 83.6(a) (2021).
48 See supra PP 30–31.
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to define the term ‘‘environmental
justice community’’ as any
disadvantaged community that has been
historically marginalized and
overburdened by pollution, including,
but not limited to, minority populations,
low-income populations, or indigenous
peoples. We seek comment on the
proposed definition of ‘‘environmental
justice community’’ and whether the
Commission should consider adopting
an alternative definition, and, if so,
why? The Commission also proposes to
revise the definitions of: (1) ‘‘national
interest electric transmission corridor’’
to include any geographic area that is
expected to experience energy
transmission capacity constraints or
congestion, for consistency with the
IIJA’s amendments to section 216(a); (2)
‘‘permitting entity,’’ for clarity and
consistency with the statute; and (3)
‘‘stakeholder,’’ for clarity and to ensure
that environmental justice community
members and other interested persons
or organizations are covered by the
definition.
33. Section 50.1 defines ‘‘affected
landowners’’ as owners of property
interests, as noted in the most recent
county/city tax records as receiving the
tax notice, whose property: (1) is
directly affected (i.e., crossed or used)
by the proposed activity including all
facility sites, rights-of-way, access roads,
staging areas, and temporary workspace;
or (2) abuts either side of an existing
right-of-way or facility site owned in fee
by any utility company, or abuts the
edge of a proposed facility site or rightof-way which runs along a property line
in the area in which the facilities would
be constructed, or contains a residence
within 50 feet of a proposed
construction work area. The
Commission is not proposing to revise
the definition of ‘‘affected landowners.’’
Nevertheless, we seek comment on
whether the Commission should revise
the definition of ‘‘affected landowners’’
to include landowners located within a
certain geographic distance from the
proposed project facilities to address
effects on visual (or other) resources,
and, if so, what geographic distance
should be used and why?
2. Section 50.3—Filing and Formatting
Requirements
34. Section 50.3 establishes the filing
and formatting requirements for
submissions in the Commission’s prefiling and application processes. The
Commission proposes to revise § 50.3(b)
to eliminate the requirement that
applications, amendments, and all
exhibits and other submissions must be
submitted in an original and seven
conformed copies. Instead, to reduce
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2775
waste, applicants would only be
required to make these submissions in
electronic format.
3. Section 50.4—Stakeholder
Participation
i. Project Participation Plan
35. As described above, § 50.4(a)
requires each applicant to develop and
file a Project Participation Plan for use
during the pre-filing and application
processes to ensure that stakeholders
have access to timely and accurate
information on the proposed project and
permitting process. The Project
Participation Plan must, among other
things, identify specific tools and
actions to facilitate stakeholder
communications and public
information, including a regularly
updated website. The Commission
proposes to revise § 50.4(a)(1) to specify
that an applicant’s website must include
an interactive mapping component to
provide users with the ability to locate
the proposed facilities in relation to
specific properties and other features.
Additionally, as discussed above, the
Commission proposes to require an
applicant to develop and file an
Environmental Justice Public
Engagement Plan early in the pre-filing
process, which would describe an
applicant’s outreach to environmental
justice communities.49
ii. Project Notification Requirements
36. As described above, § 50.4(c) sets
forth the project notification
requirements for applicants. Section
50.4(c)(1) requires the applicant to
distribute, by mail and newspaper
publication, project participation
notices within a specified time
following notice that the pre-filing
process has commenced and notice that
an application has been filed. Section
50.4(c)(1) directs the applicant to notify,
among others, all affected landowners
and landowners with a residence within
a quarter mile from the edge of the
construction right-of-way for the
proposed project. The Commission
proposes to revise § 50.4(c)(1) for clarity
and to ensure that applicants provide
notice of the proposed project to all
interested individuals and
organizations. We seek comment on
whether a quarter-mile limit is sufficient
and, if not, what geographic distance
should be used and why?
37. Section 50.4(c)(2)(i) describes the
required contents of the pre-filing
notice. For clarity and to avoid
confusion, the Commission proposes
organizational changes in the
regulations to distinguish the
49 Supra
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requirements that pertain to any prefiling notice that is sent by mail or
published in a newspaper (proposed
§ 50.4(c)(2)(i)) from the requirements
that pertain only to any pre-filing notice
that is sent by mail to an affected
landowner (proposed § 50.4(c)(2)(ii)).
38. In addition to this reorganization,
we propose to add a requirement that
any pre-filing notice mailed to an
affected landowner also include a copy
of a Commission document titled
‘‘Landowner Bill of Rights in Federal
Energy Regulatory Commission Electric
Transmission Proceedings’’ (Landowner
Bill of Rights). We seek comment on a
draft version of the Landowner Bill of
Rights provided in the Appendix to this
NOPR. The Commission believes that
requiring the applicant to provide this
information at the outset of the
permitting process would help ensure
that affected landowners are informed of
their rights in dealings with the
applicant, in Commission proceedings,
and in eminent domain proceedings. We
also propose to require that any prefiling notice sent by mail or published
in the newspaper include information
clarifying that the Commission’s prefiling and application processes are
separate from any simultaneous State
siting proceeding and explaining how to
participate in any such State siting
proceeding.
39. The Commission expects
applicants to make a good faith effort to
ensure that individuals and
organizations entitled to receive project
participation notices can comprehend
the contents of such notices.
Accordingly, applicants should consider
the need for project participation
notices in languages other than English
as part of the Environmental Justice
Public Engagement Plan described
above. Additionally, we seek comment
on what methods of notice beyond mail
and newspaper publication might be
utilized in order to effectively reach the
largest number of stakeholders as
possible.
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4. Section 50.5—Pre-Filing Procedures
40. Section 50.5 describes the
required pre-filing procedures for
applicants seeking a permit under FPA
section 216. Section 50.5(c) describes
the information that an applicant must
provide in the pre-filing request. The
Commission proposes to require that
any pre-filing request include a detailed
description of how the proposed project
will reduce capacity constraints and
congestion on the transmission system
(proposed § 50.5(c)(8)) and, as described
above, a statement indicating whether
an applicant intends to comply with the
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Applicant Code of Conduct (proposed
§ 50.5(c)(9)).
41. Section 50.5(e) describes the
information that an applicant must
provide once the Director of the Office
of Energy Projects has issued a notice
commencing the pre-filing process, and
the respective deadlines for filing such
information. The Commission proposes
clarifications to § 50.5(e)(3) and (4) to
ensure consistency with the project
notification requirements in § 50.4(c).
We also propose to require an applicant
to file congestion-related information
earlier in the Commission’s permitting
process to provide sufficient time for
Commission staff to evaluate the
adequacy of information needed to
conduct the required analyses under
section 216(b)(4).50 Specifically, within
30 days of the notice commencing the
pre-filing process, we propose to require
an applicant to file a draft version of
Exhibit H, System analysis data,
required by § 50.7 (proposed
§ 50.5(e)(8)), showing how the proposed
project will reduce capacity constraints
and congestion on the transmission
system. In addition to a draft version of
Exhibit H, we also propose to require an
applicant to file additional supporting
information such as system impact
study reports, relevant regional
transmission plans, and, if applicable,
expert witness testimony and other
relevant information submitted with the
State application(s) (proposed
§ 50.5(e)(7)).
5. Section 50.6—General Content of
Applications
42. Section 50.6 describes the
information that must be provided as
part of an application for a permit under
FPA section 216. In § 50.6(c), the
Commission proposes to update certain
terminology for clarity (e.g., deleting
origin and termination points and
replacing those terms with point of
receipt and point of delivery,
respectively). We also propose to revise
§ 50.6(d) to specify that verification that
the proposed route lies within a DOEdesignated National Corridor must
include the date of designation.
43. Each application filed under part
50 of the Commission’s regulations must
provide evidence demonstrating that
one of the jurisdictional bases set forth
in section 216(b)(1) applies to the
proposed facilities. To ensure
consistency with section 216(b)(1)(A), as
amended by the IIJA, the Commission
50 FPA section 216(b)(4) requires the Commission
to find that the proposed construction or
modification of transmission facilities will
significantly reduce transmission congestion in
interstate commerce and protects or benefits
consumers.
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proposes to add to § 50.6(e)(1) the
phrase ‘‘or interregional benefits’’ to
clarify that an application may provide
evidence that a State does not have the
authority to consider the interstate
benefits or interregional benefits
expected to be achieved by the proposed
facilities. While the statute, as amended
by the IIJA, does not define the term
‘‘interregional,’’ the Commission for the
purposes of this NOPR proposes to
apply a meaning that is consistent with
Order No. 1000, which defines an
interregional transmission facility as
one that is located in two or more
transmission planning regions.51 As
discussed above, we also propose
revisions to § 50.6(e)(3) to ensure that
the regulatory text tracks the IIJA’s
amendments to section 216(b)(1)(C).52
6. Section 50.7—Application Exhibits
44. Section 50.7 identifies the exhibits
that applicants must file with an
application and describes the technical
data that must be provided in each
exhibit. Section 50.7(g) requires each
applicant to submit Exhibit G—
Engineering data, which must include a
detailed project description. For
consistency and clarity, the Commission
proposes revisions to ensure that the
project description includes points of
receipt and delivery (§ 50.7(g)(1)(i)), line
design features that minimize audible
corona noise during rain or fog
(§ 50.7(g)(1)(vi)), and overhead and
underground structures (§ 50.7(g)(2)(ii)).
45. The Commission also proposes
revisions to § 50.7(h), which describes
the requirements for Exhibit H—System
analysis data. Specifically, we propose
to: (1) require the analysis to include
project impacts on transmission
capacity constraints (§ 50.7(h)(1)); (2)
clarify that the analysis must include
steady-state, short-circuit, and dynamic
power flow cases, as applicable, and
consider planned and forecasted forced
outage rate for generation and
transmission and generation dispatch
scenarios (§ 50.7(h)(2)); and (3) require
the analysis to identify how the
proposed project will affect congestion
on neighboring transmission systems
(§ 50.7(h)(3)). This information is
necessary for Commission staff to
evaluate whether the proposed facilities
would significantly reduce transmission
congestion and protect or benefit
consumers, as required by section
216(b)(4).
51 Transmission Plan. & Cost Allocation by
Transmission Owning & Operating Public Utilities,
Order No. 1000, 76 FR 49842 (Aug. 11, 2011), 136
FERC ¶ 61,051, at P 482 n.374 (2011).
52 Supra P 18.
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7. Section 50.11—General Permit
Conditions
46. Section 50.11 lists the general
conditions that would apply to any
permit issued under part 50 of the
Commission’s regulations. The
Commission proposes clarifying edits to
§§ 50.11(a) and (b). The proposed
revision to § 50.11(b) is intended to
foreclose a situation where an applicant
would need to accept a permit in
instances where rehearing has been
denied by operation of law and the
applicant has appealed, but the
Commission intends to issue a future
order before the record is filed with the
court of appeals.
47. In addition, to balance our
commitment to expeditiously respond
to parties’ concerns in comprehensive
orders on rehearing and the serious
concerns posed by the possibility of
construction proceeding prior to the
completion of Commission review, we
propose to add language to § 50.11(d)
that would, under certain circumstances
and for a limited time, preclude the
issuance of authorizations to proceed
with construction of transmission
facilities authorized under FPA section
216 while requests for rehearing of
orders issuing permits remain pending
before the Commission. This proposed
addition, which mirrors a regulation
that the Commission previously adopted
in the natural gas context,53 would
ensure that construction of approved
transmission facilities does not begin
during 30-day rehearing period and, if a
qualifying rehearing request is filed,
until that request is no longer pending
before the Commission, the record of the
proceeding is filed with the court of
appeals, or 90 days has elapsed since
the rehearing request was deemed
denied by operation of law.
8. Proposed Clarifying Revisions to 18
CFR Part 50
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48. In addition to the proposed
revisions discussed above, we propose
minor, non-substantive edits throughout
part 50 of our regulations. These
proposed revisions are intended to
clarify or streamline existing
requirements, to correct grammatical
errors and cross-references, and to
maintain consistency.
E. Regulations Implementing NEPA
49. In Order No. 689, in addition to
establishing the requirements for
applications filed under FPA section
53 See Limiting Authorizations to Proceed with
Construction Activities Pending Rehearing, Order
No. 871–B, 86 FR 26150 (May 13, 2021), 175 FERC
¶ 61,098, order on reh’g, Order No. 871–C, 86 FR
43077 (Aug. 6, 2021), 176 FERC ¶ 61,062 (2021).
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216, the Commission also adopted
several amendments to its NEPA
regulations. These amendments
included revisions or additions to:
§ 380.3(c) (adding electric transmission
projects to the list of project types for
which applicants must provide
environmental information),
§ 380.5(b)(14) (adding electric
transmission facilities to the list of
project types for which the Commission
will prepare an Environmental
Assessment), § 380.6(a)(5) (adding major
electric transmission facilities using
right-of-way in which there is no
existing facility to the list of project
types for which the Commission will
prepare an Environmental Impact
Statement), § 380.8 (designating the
Office of Energy Projects as responsible
for the preparation of environmental
documents for electric transmission
facilities), § 380.10(a)(2)(iii) (clarifying
that pre-filing proceedings for electric
transmission facilities are not open to
motions to intervene), and § 380.15
(stating that electric transmission
project sponsors must comply with the
National Electric Safety Code and
transmission rights-of-way are subject to
the same construction and maintenance
requirements as natural gas pipelines).
50. The Commission also added a new
section to its NEPA regulations, 18 CFR
380.16, which describes the specific
environmental information that must be
included in applications for permits to
site transmission facilities under section
216. Section 380.16 currently requires
each applicant to submit an
environmental report that includes
eleven resource reports, as follows.
51. Resource Report 1 requires the
applicant to describe the project and
proposed construction methods and
requirements; submit topographic maps,
aerial images and/or photographs
showing the proposed project facilities;
identify all authorizations and
mitigation measures required to
construct the proposed project; and
provide the names and addresses of all
affected landowners.54
52. Resource Report 2 requires the
applicant to provide information
necessary to determine the impact of the
proposed project on water use and water
quality and proposed mitigation
measures.55
53. Resource Report 3 requires the
applicant to describe aquatic life,
wildlife, and vegetation in the vicinity
of the proposed project; the expected
impacts on these resources; and
proposed mitigation measures.56
54 18
CFR 380.16(c) (2021).
380.16(d).
56 Id. 380.16(e).
55 Id.
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54. Resource Report 4 requires the
applicant to provide information
necessary for the Commission to
consider the effect of a proposed project
on cultural resources in furtherance of
the Commission’s obligations under
section 106 of the National Historic
Preservation Act (NHPA).57
55. Resource Report 5 requires the
applicant to describe the socioeconomic
impact area and to identify and quantify
the impacts of constructing and
operating the proposed project on
factors affecting towns and counties in
the project vicinity.58
56. Resource Report 6 requires the
applicant to describe geological
resources and hazards in the project
area that might be directly or indirectly
affected by the proposed facility or may
place the proposed facility at risk, the
potential effects of those hazards on the
facility, and the methods to reduce the
effects or risks.59
57. Resource Report 7 requires the
applicant to describe the soils that will
be affected by the proposed project and
measures proposed to minimize or
avoid impacts.60
58. Resource Report 8 requires the
applicant to provide information
concerning the uses of land in the
project area and proposed mitigation
measures to protect and enhance
existing land use.61
59. Resource Report 9 requires the
applicant to describe alternatives to the
project, including the ‘‘no action’’
alternative, and to compare the
environmental impacts of such
alternatives.62
60. Resource Report 10 requires the
applicant to address reliability and
safety considerations, including the
potential hazard to the public from the
proposed facilities resulting from
accidents or natural catastrophes; how
these events would affect reliability; and
the procedures and design features
employed to reduce potential hazards.63
61. Finally, Resource Report 11
requires the applicant to provide design
and engineering data, including general
design and engineering drawings of all
major project structures, and a
supporting design report.64
62. As explained above, the Fourth
Circuit’s 2009 Piedmont decision
vacated Order No. 689’s amendments to
the Commission’s NEPA regulations
57 Id.
380.16(f).
380.16(g).
59 Id. 380.16(h).
60 Id. 380.16(i).
61 Id. 380.16(j).
62 Id. 380.16(k).
63 Id. 380.16(l).
64 Id. 380.16(m).
58 Id.
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because the court found that the
Commission had failed to consult with
CEQ prior to issuing the revised
regulations.65 Notwithstanding the
Fourth Circuit’s vacatur, the NEPA
amendments set forth in Order No. 689
are still reflected in 18 CFR part 380. We
seek comment on the whole of the
Commission’s NEPA regulations
pertaining to electric transmission
facilities, as well as the specific
proposed changes to those regulations
described further below. The
Commission will consult with CEQ on
the proposed changes to its NEPA
regulations described below as well as
those originally implemented by Order
No. 689.
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1. Tribal Resources Resource Report
63. The Commission recognizes the
unique relationship between the United
States and Indian Tribes, acknowledges
its trust responsibility to Indian Tribes,
and endeavors to work with tribes on a
government-to-government basis,
seeking to address the effects of
proposed projects on Tribal rights and
resources through consultation.66 To
evaluate the effects of proposed
transmission facilities on Tribal rights
and resources, the Commission’s
existing regulations require an applicant
to submit information describing the
project’s effects on Tribes, Tribal lands,
and Tribal resources as part of the Land
use, recreation, and aesthetics resource
report.67 Specifically, the applicant
must identify Tribes that may attach
religious and cultural significance to
historic properties within the right-ofway or in the project vicinity; 68 provide
available information on traditional
cultural and religious properties; 69 and
ensure that specific site or location
information, disclosure of which will
create a risk of harm, theft, or
destruction or violate Federal law, is not
disclosed.70
64. The Commission proposes to
relocate the existing Tribal resourcerelated information requirements to a
new, standalone resource report,
Resource Report 6—Tribal resources, in
proposed § 380.16(h). In addition to
consolidating the existing requirements
in a new resource report,71 we also
propose to require an applicant to
identify potentially-affected Tribes
(proposed § 380.16(h)(1)); describe the
impacts of project construction,
65 See
supra P 11.
CFR 2.1c (2021).
67 See id. § 380.16(j)(5).
68 Id. § 380.16(j)(5)(i).
69 Id.
70 Id. § 380.16(j)(5)(ii).
71 See proposed §§ 380.16(h)(4)–(5).
66 18
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operation, and maintenance on Tribes
and Tribal interests, including impacts
related to enumerated resource areas
(proposed § 380.16(h)(2)); and describe
project impacts that may affect Tribal
interests that are not necessarily
associated with particular resource areas
(e.g., treaties, Tribal practices, or
agreements) (proposed § 380.16(h)(3)).
The Commission believes this
information is necessary to fully
evaluate the effects of a proposed
project in furtherance of the
Commission’s trust responsibility and
our statutory obligations under the FPA
and NEPA.
2. Environmental Justice Resource
Report
65. In conducting NEPA reviews of
proposed transmission facilities, the
Commission intends to follow the
instruction of Executive Orders 12898,72
14008,73 and 13985,74 as described
above, and relevant CEQ guidance 75
and EPA’s Promising Practices report 76
on assessing impacts on environmental
justice communities under NEPA.77
Section 380.16 does not currently
require an applicant to submit
information on the potential project
impacts on environmental justice
communities. Therefore, the
Commission proposes to add a new
resource report, Resource Report 7—
72 E.O. 12898, 59 FR 7629 (Feb. 16, 1994). While
the Commission is not one of the specified agencies
in Executive Order 12898, the Commission
nonetheless intends to address environmental
justice in its analysis, in accordance with our
governing regulations and statutory duties. 16
U.S.C. 824p(b)(3); 18 CFR 380.16(g) (2021)
(requiring applicants to submit information about
the socioeconomic impact area of a project for the
Commission’s consideration during NEPA review);
see also FERC, Guidance Manual for Environmental
Report Preparation at 4–76 to 4–82 (Feb. 2017),
https://www.ferc.gov/sites/default/files/2020-04/
guidance-manual-volume-1.pdf (providing
guidance for preparing Resource Report 5—
Socioeconomics, including addressing project
effects on environmental justice communities, for
applications filed under the Natural Gas Act).
73 E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
74 E.O. 13985, 86 FR 7009 (Jan. 25, 2021).
75 CEQ’s Environmental Justice Guidance, https://
www.energy.gov/sites/default/files/nepapub/nepa_
documents/RedDont/G-CEQ-EJGuidance.pdf. CEQ
offers recommendations on how Federal agencies
can provide opportunities for effective community
participation in the NEPA process, including
identifying potential effects and mitigation
measures in consultation with affected
communities and improving the accessibility of
public meetings, crucial documents, and notices.
76 See generally Promising Practices, https://
www.epa.gov/sites/default/files/2016-08/
documents/nepa_promising_practices_document_
2016.pdf.
77 NEPA requires the Commission before taking
an action, to analyze, disclose, and take a ‘‘hard
look’’ at the potential environmental impacts of that
action. See 42 U.S.C. 4332(2)(C); Balt. Gas & Elec.
Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97
(1983) (discussing the twin aims of NEPA).
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Environmental justice, in proposed
§ 380.16(i). Specifically, the resource
report would require the applicant to
identify environmental justice
communities within the project’s area of
potential impacts (proposed
§ 380.16(i)(1)); 78 describe the impacts of
project construction, operation, and
maintenance on environmental justice
communities, including whether any
impacts would be disproportionately
high and adverse (proposed
§ 380.16(i)(2)); discuss cumulative
impacts on environmental justice
communities, including whether any
cumulative impacts would be
disproportionately high and adverse
(proposed § 380.16(i)(3)); and describe
any proposed mitigation measures
intended to avoid or minimize impacts
on environmental justice communities,
including any community input
received on the proposed measures and
how the input informed the proposed
measures (proposed § 380.16(i)(4)).
66. The Commission also proposes a
corresponding addition to § 380.2,
which sets forth the definitions for the
Commission’s NEPA regulations.
Specifically, the Commission proposes
to define the term ‘‘environmental
justice community’’ in proposed
§ 380.2(f). The proposed definition of
the term ‘‘environmental justice
community’’ is identical to the
definition that the Commission
proposes to add to § 50.1.79
67. Finally, while we recognize that
EPA and CEQ are in the process of
updating their guidance regarding
environmental justice, we expect
applicants to utilize the latest guidance
and data from CEQ, EPA, the Census
Bureau, and other authoritative sources.
The Commission intends to review and
incorporate any updated guidance from
CEQ and EPA in our future analyses, as
appropriate.
3. Air Quality and Environmental Noise
Resource Report
68. Section 380.16(l)(7) requires
applicants, as part of the existing
Reliability and safety resource report, to
indicate the noise level generated by the
proposed transmission line and
compare the noise level to any known
noise ordinances for the zoning districts
through which the line will pass.
Section 380.16 does not currently
require information on proposed project
78 As discussed, to identify environmental justice
communities, Commission staff currently reviews
U.S. Census Bureau population data for the
applicable location and applies population
thresholds provided by EPA and CEQ in their
environmental justice recommendations and
guidance. See supra at note 40.
79 See supra P 32.
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emissions and the corresponding effects
on air quality and the environment.
69. To fully evaluate the effects of a
proposed project in furtherance of our
obligations under NEPA,80 the
Commission believes additional
information on emissions, air quality,
and environmental noise is necessary.
Therefore, the Commission proposes to
add a new resource report, Resource
Report 11—Air quality and
environmental noise, in proposed
§ 380.16(m). Proposed Resource Report
11 would require the applicant to
estimate emissions from the proposed
project and the corresponding impacts
on air quality and the environment,
estimate the impact of the proposed
project on the noise environment, and
describe proposed measures to mitigate
the impacts. Consistent with the
Commission’s requirements for natural
gas compressor stations,81 we also
propose to establish a noise limit for
proposed substations and appurtenant
facilities at pre-existing noise-sensitive
areas, such as schools, hospitals, or
residences.
70. Under proposed § 380.16(m)(1),
the Air quality and environmental noise
resource report must describe the
existing air quality in the project area,
indicate if any project facilities are
located within a designated
nonattainment or maintenance area
under the Clean Air Act,82 and provide
the distance from the project facilities to
any Class I area in the project vicinity.
Under proposed § 380.16(m)(3), the
resource report must estimate emissions
from the proposed project and the
corresponding impacts on air quality
and the environment. Specifically, the
applicant must provide the reasonably
foreseeable emissions from
construction, operation, and
maintenance of the project facilities;
provide a comparison of emissions with
applicable General Conformity
thresholds (40 CFR part 93) for each
designated nonattainment or
maintenance area; identify the
corresponding impacts on communities
and the environment in the project area;
and describe any proposed mitigation
measures to control emissions.
71. Under proposed § 380.16(m)(2),
the resource report must, for proposed
substations and appurtenant facilities,
quantitatively describe existing noise
levels at nearby noise-sensitive areas.
Under proposed § 380.16(m)(4), the
80 As noted above, NEPA requires the
Commission to take a ‘‘hard look’’ at the
environmental impacts of a proposed action. See 42
U.S.C. 4332(2)(C); Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, Inc., 462 U.S. at 97.
81 18 CFR 380.12(k)(4)(v)(A) (2021).
82 42 U.S.C. 7401 et seq.
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resource report must provide a
quantitative estimate of project
operation (including proposed
transmission lines, substations, and
other appurtenant facilities) on noise
levels. The operational noise estimates
must demonstrate that the proposed
project will comply with applicable
State and local noise regulations and
that noise attributable to any proposed
substation or appurtenant facility does
not exceed a day-night sound level (Ldn)
of 55 dBA at any pre-existing noisesensitive area.83 Additionally, the
resource report must describe the
impact of proposed construction
activities on the noise environment and
any proposed mitigation measures to
reduce noise impacts.
4. Visual Resources
72. Section 380.16(j)(11) requires
applicants, as part of the existing Land
use, recreation, and aesthetics resource
report, to describe the visual
characteristics of the lands and waters
affected by the project, including how
the transmission line facilities will
impact the visual character of the
project right-of-way and surrounding
vicinity and related mitigation
measures. The Commission’s existing
regulations encourage, but do not
require, applicants to supplement this
description with visual aids.
73. The Commission believes that
more specific information is needed to
evaluate the effects of the proposed
project facilities on visual resources.
Above ground high-voltage transmission
lines may cause substantial visual
contrast and be a major focus for viewer
attention. To assess visual impacts of
infrastructure projects, including highvoltage transmission lines, Commission
staff has, in some cases, used the Bureau
of Land Management’s Visual Resource
Management methodology,84 and other
agencies have used the Federal Highway
Administration’s Visual Impact
Assessment for Highway Projects.85 The
Commission seeks comment on whether
83 The EPA has indicated that a day-night noise
level of 55 decibels on the A-weighted scale
protects the public from indoor and outdoor activity
interference. The Commission has adopted this
criterion and uses it to evaluate the potential noise
impact from operation of natural gas compressor
facilities. Elba Express Co., L.L.C., 141 FERC
¶ 61,027, at P 21 n.12 (2012). We think it is
appropriate to use this same criterion to evaluate
the potential noise impact from operation of
substations and appurtenant facilities.
84 See, e.g., Final Environmental Impact
Statement for the Swan Lake North Pumped Storage
Project (P–13318–003).
85 See, e.g., Final Environmental Impact
Statement for the Susquehanna to Roseland 500kv
Transmission Line Right-of-Way and Special Use
Permit at 588, https://parkplanning.nps.gov/
document.cfm?documentID
=49285&parkID=220&projectID=25147.
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2779
either of these tools, or any other tools,
are appropriate for our analysis.
Additionally, we believe that visual aids
are necessary to support this evaluation.
Therefore, in proposed § 380.16(l)(10),
we propose to require the applicant to
identify the area of potential visual
effects from the proposed project;
describe any visually sensitive areas,
visual classifications, and key
viewpoints in the project vicinity; and
provide visual aids to support the
evaluation of visual impacts from the
proposed project.
5. Additional Proposed Revisions to 18
CFR 380.16
74. Because the Commission proposes
to add to § 380.16 three new resource
reports (Tribal resources, Environmental
justice and Air quality and
environmental noise), we propose to
redesignate all resource reports after
Resource Report 5—Socioeconomics as
follows: Resource Report 6—Tribal
resources (proposed § 380.16(h));
Resource Report 7—Environmental
justice (proposed § 380.16(i)); Resource
Report 8—Geological resources
(proposed § 380.16(j)); Resource Report
9—Soils (proposed § 380.16(k));
Resource Report 10—Land use,
recreation, and aesthetics (proposed
§ 380.16(l)); Resource Report 11—Air
quality and environmental noise
(proposed § 380.16(m)); Resource Report
12—Alternatives (proposed § 380.16(n));
Resource Report 13—Reliability and
safety (proposed § 380.16(o)); and
Resource Report 14—Design and
engineering (proposed § 380.16(p)).
75. In addition to the proposed
addition of three new resource reports
and the proposed changes to the visual
resources requirements described above,
the Commission proposes revisions
throughout § 380.16. We discuss the
main substantive revisions below.
76. In § 380.16(b)(3), we propose to
clarify the scope of cumulative effects
that must be identified in each resource
report for consistency with the
definition of cumulative effects in CEQ’s
NEPA regulations.86
77. In § 380.16(c)(2), we propose to
revise Resource Report 1—General
project description to more clearly
identify the types of facilities that must
be depicted on the topographic maps
and aerial images or photo-based
alignment sheets. We also propose to
add requirements to describe any
proposed horizontal directional drilling
and pile driving that may be necessary
(§ 380.16(c)(3)), indicate the days of the
week and times of the day during which
construction activities would occur, and
86 40
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describe any proposed nighttime
construction activities (§ 380.16(c)(4)).
78. In § 380.16(d)(6), the Commission
proposes to add a requirement that
Resource Report 2—Water use and
quality describe the impact of proposed
land clearing and vegetation
management practices on water
resources. In § 380.16(e), the
Commission proposes to clarify that
Resource Report 3—Fish, wildlife, and
vegetation must describe potential
impacts on interior forest
(§ 380.16(e)(3)), as well as the impact of
proposed land clearing and vegetation
management practices on fish, wildlife,
and vegetation (§ 380.16(e)(4)).
79. In § 380.16(k)(4), the Commission
proposes to add a requirement that
Resource Report 9—Soils describe any
proposed mitigation measures intended
to reduce the potential for adverse
impacts to soils or agricultural
productivity.
80. In § 380.16(l)(4), the Commission
proposes to add a requirement that
Resource Report 10—Land use,
recreation, and aesthetics identify the
area of direct effect of the proposed
facilities on interior forest. The
Commission also proposes to: (1) clarify
the scope of facilities (e.g., buildings,
electronic installations, airstrips,
airports, and heliports) in the project
vicinity that must be identified; (2)
clarify the corresponding requirements
to depict such facilities on the maps and
photographs in Resource Report 1
(§ 380.16(l)(5)); and (3) require copies of
any consultation with the Federal
Aviation Administration
(§ 380.16(l)(5)(iii)).
81. In § 380.16(o)(3), the Commission
proposes to add a requirement that
Resource Report 13—Reliability and
safety include a discussion of any
proposed measures intended to ensure
that the facilities proposed by the
applicant would be resilient against
future climate change impacts. We also
propose to clarify the existing
requirement that the Reliability and
safety resource report discuss
contingency plans for maintaining
service or reducing downtime by adding
that such contingency plans should
ensure that the proposed facilities
would not adversely affect the bulk
electric system in accordance with
applicable North American Electric
Reliability Corporation reliability
standards (§ 380.16(o)(4)). Finally, given
the addition of new Resource Report
11—Air quality and environmental
noise, the Commission proposes to
eliminate from the Reliability and safety
resource report the now redundant
requirement that the applicant must
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indicate the noise level generated by the
transmission line.
82. For all of the proposed revisions
discussed above, we seek comment on,
as appropriate, whether the Commission
has authority to impose such changes
and, if it does, whether it should impose
such changes. We also propose minor,
non-substantive edits throughout
§ 380.16. These proposed revisions are
intended to clarify or streamline
existing requirements, to correct
grammatical errors and cross-references,
and to maintain consistency.
6. Proposed Revisions to 18 CFR 380.13
and 380.14
83. Finally, the Commission also
proposes to amend §§ 380.13
(Compliance with the Endangered
Species Act) and 380.14 (Compliance
with the NHPA) to add cross-references
to the appropriate paragraphs of
§ 380.16. We believe the prior omission
of such cross-references to be an
oversight. Section 380.14 also contains
a proposed revision to correct the legal
citation for section 106 of the NHPA,87
following the act’s recodification in title
54 of the U.S. Code.
III. Information Collection Statement
84. The Paperwork Reduction Act 88
requires each Federal agency to seek
and obtain the Office of Management
and Budget’s (OMB) approval before
undertaking a collection of information
directed to ten or more persons or
contained in a rule of general
applicability. OMB regulations require
approval of certain information
collection requirements contemplated
by proposed rules.89 Upon approval of
a collection of information, OMB will
assign an OMB control number and an
expiration date. Respondents subject to
the filing requirements of a rule will not
be penalized for failing to respond to the
collection of information unless the
collection of information displays a
valid OMB control number.
85. Public Reporting Burden: In this
NOPR, the Commission proposes to
revise its regulations governing
applications for permits to site
transmission facilities under section 216
of the FPA. This proposed rule would
modify certain reporting and
recordkeeping requirements included in
FERC–729 (OMB Control No. 1902–
0239).90
86. The proposed revisions to the
Commission’s regulations associated
87 54
U.S.C. 306108.
U.S.C. 3501–3521.
89 See 5 CFR 1320.11 (2021).
90 FERC–729 includes the reporting and
recordkeeping requirements for ‘‘Electric
Transmission Facilities.’’
88 44
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with the FERC–729 information
collection are intended to ensure
consistency with section 216 of the
FPA, as amended by the IIJA. The
Commission also proposes revisions to
modernize certain regulatory
requirements and to incorporate other
updates and clarifications to provide for
the efficient and timely review of permit
applications. Several of the proposed
revisions have information collection
implications. For example, the
Commission proposes to require an
applicant to:
• maintain an affected landowner
contact log, provide certain information
to affected landowners, file an
affirmative statement with the
Commission indicating the applicant’s
intent to comply with the Applicant
Code of Conduct, and include
compliance updates as part of the
monthly status reports required during
the pre-filing process; 91
• provide additional congestion and
system analysis information during the
pre-filing process and as part of the
application;
• develop and file an environmental
justice public engagement plan
describing completed and planned
targeted outreach efforts during the prefiling process and after an application
has been submitted;
• develop and file a new resource
report describing the proposed project’s
impacts on Tribal resources;
• develop and file a new resource
report describing the proposed project’s
impacts on environmental justice
communities;
• develop and file a new resource
report describing the proposed project’s
impact on air quality and environmental
noise;
• provide additional information
describing the proposed project’s visual
impacts; and
• provide additional information as
part of the following existing resource
reports: General project description;
Water use and quality; Fish, wildlife,
and vegetation; Soils; Land use,
recreation, and aesthetics; and
Reliability and safety.
These proposed revisions would
represent an increase in information
collection requirements and burden for
FERC–729.
87. The Commission recognizes that
some of the estimates for the
information collection activities
proposed in this NOPR are novel.
Therefore, the Commission seeks
comments on the burden and costs
91 These requirements would only apply to
applicants who elect to comply with the Applicant
Code of Conduct set forth in proposed § 50.12.
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associated with the requirements
contained in this NOPR.
88. The estimated burden and cost for
the requirements contained in this
NOPR follow.
ANNUAL CHANGES PROPOSED BY THE NOPR IN DOCKET NO. RM22–7–000
Number of
respondents
Number of
responses 92 per
respondent
Total number
of responses
Average burden hours &
cost per response 93
Total annual burden hours
& total annual cost
(1)
(2)
(1) × (2) = (3)
(4)
(3) × (4) = 5
Current FERC 729 Collection
FERC–729 .........................
1
1
1
9,600 hrs.; $873,600 ........
9,600 hrs.; $873,600.
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Proposed Revisions in RM22–7–000
Applicant Code of Conduct 94.
Environmental Justice Public Engagement Plan.
Congestion and System
Analysis Data 96.
Other Updates to 18 CFR
pt. 50 97.
Resource Report: Tribal
Resources.
Resource Report: Environmental Justice.
Resource Report: Air Quality & Environmental
Noise.
Information on Visual Impacts.
Other Updates to 18 CFR
pt. 380 98.
95 1
1
1
136 hrs; $12,376 ..............
136 hrs.; $12,376.
1
1
1
24 hrs.; $2,184 .................
24 hrs.; $2,184.
1
1
1
160 hrs.; $14,560 .............
160 hrs.; $14,560.
1
1
1
28 hrs.; $2,548 .................
28 hrs.; $2,548.
1
1
1
40 hrs.; $3,640 .................
40 hrs.; $3,640.
1
1
1
80 hrs.; $7,280 .................
80 hrs.; $7,280.
1
1
1
296 hrs.; $26,936 .............
296 hrs.; $26,936.
1
1
1
100 hrs.; $9,100 ...............
100 hrs.; $9,100.
1
1
1
148 hrs.; $13,468 .............
148 hrs.; $13,468.
Total ............................
........................
..............................
11
...........................................
1,012 hrs.; $92,092.
89. Titles: FERC–729—Electric
Transmission Facilities.
90. Action: Revisions to information
collection FERC–729.
91. OMB Control Nos.: 1902–0238
(FERC–729).
92. Respondents: Entities proposing to
construct electric transmission facilities
pursuant to the Commission’s authority
under section 216 of the FPA.
93. Frequency of Information:
Ongoing.
94. Necessity of Information: The new
information collection requirements are
necessary for the Commission to carry
out its responsibilities under the FPA,
as amended by the IIJA, and NEPA. The
required information would enable the
Commission to review the features of
the proposed project and determine
whether the proposed project meets the
statutory criteria enumerated in section
216(b) of the FPA. In addition, the
proposed revisions to the Commission’s
mandatory pre-filing process that would
require certain information to be filed
earlier in the process would help ensure
that an application can be acted on no
later than one year after the date of
filing in compliance with section
216(h)(4)(B). The revised regulations
would affect only the number of entities
that would pursue a permit to site
electric transmission facilities.
95. Internal Review: The Commission
has reviewed the proposed revisions
and has determined that they are
necessary. These requirements conform
to the Commission’s need for efficient
information collection, communication,
and management within the energy
industry. The Commission has assured
itself, by means of internal review, that
there is specific, objective support for
the burden estimates associated with the
information collection requirements.
96. Interested persons may obtain
information on the reporting
requirements by contacting the Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC 20426
[Attention: Ellen Brown, Office of the
Executive Director], by email to
92 We consider the filing of an application,
including the mandatory pre-filing information, to
be a ‘‘response.’’
93 The estimates for cost per response are derived
using the following formula: Average Burden Hours
per Response * $91 per Hour = Average Cost per
Response. The hourly cost figure is the FY2022
FERC average annual salary plus benefits
($188,992/year or $91/hour). Commission staff
estimates that industry costs for salary plus benefits
are similar to Commission costs.
94 Notwithstanding that compliance with the
Applicant Code of Conduct is voluntary, we are
providing the estimated burden hours associated
with such compliance.
95 After implementation of this proposed rule, we
estimate one application for a permit to site electric
transmission facilities will be filed per year.
96 This category covers the proposed updates to
the congestion and system analysis data that an
applicant must provide during the pre-filing
process and as part of the application in Exhibit H,
System analysis data.
97 This category covers additional proposed
updates to part 50 of the Commission’s regulations
that involve minor increases in burden (e.g., adding
an interactive mapping feature to an applicant’s
project website and including additional material in
the project notifications mailed to affected
landowners) as well as a reduction in burden
associated with eliminating the requirement that an
applicant provide seven paper copies of an
application, exhibits, and other submittals.
98 This category covers a variety of nonsubstantial proposed updates to § 380.16 of the
Commission’s regulations that, if adopted, would
require an applicant to develop and submit
additional information as part of the following
resource reports: General project description; Water
use and quality; Fish, wildlife, and vegetation;
Soils; Land use, recreation, and aesthetics; and
Reliability and safety.
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DataClearance@ferc.gov or by phone
(202) 502–8663.
97. Comments concerning the
collections of information and the
associated burden estimates may also be
sent to: Office of Information and
Regulatory Affairs, Office of
Management and Budget, 725 17th
Street NW, Washington, DC 20503
[Attention: Desk Officer for the Federal
Energy Regulatory Commission]. Due to
security concerns, comments should be
sent electronically to the following
email address: oira_submission@
omb.eop.gov. Comments submitted to
OMB should refer to FERC–729 (OMB
Control No. 1902–0238).
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IV. Environmental Analysis
98. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant effect on the human
environment.99 The Commission has
categorically excluded certain actions
from this requirement as not having a
significant effect on the human
environment, including the
promulgation of rules that are clarifying,
corrective, or procedural, or that do not
substantially change the effect of
legislation or the regulations being
amended.100 Because the actions
proposed herein fall within this
categorical exclusion, preparation of an
Environmental Assessment or an
Environmental Impact Statement is not
required.
V. Regulatory Flexibility Act
99. The Regulatory Flexibility Act of
1980 (RFA) 101 generally requires a
description and analysis of proposed
rules that will have significant
economic impact on a substantial
number of small entities. The RFA
mandates consideration of regulatory
alternatives that accomplish the stated
objectives of a proposed rule and
minimize any significant economic
impact on a substantial number of small
entities.102 In lieu of preparing a
regulatory flexibility analysis, an agency
may certify that a proposed rule will not
have a significant economic impact on
a substantial number of small
entities.103
100. The Small Business
Administration’s (SBA) Office of Size
Standards develops the numerical
99 Regs. Implementing the Nat’l Env’l Pol’y Act of
1969, Order No. 486, 52 FR 47897 (Dec. 10, 1987),
FERC Stats. & Regs. ¶ 30,783 (1987) (crossreferenced at 41 FERC ¶ 61,284).
100 18 CFR 380.4(a)(2)(ii) (2021).
101 5 U.S.C. 601–612.
102 Id. 603(c).
103 Id. 605(b).
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definition of a small business.104 The
SBA size standard for electric utilities is
based on the number of employees,
including affiliates.105 Under SBA’s size
standards, a transmission owner
covered under the category of Electric
Bulk Power Transmission and Control
(NAICS code 221121) 106 is small if,
including its affiliates, it employs 500 or
fewer people.107
101. In Order No. 689, the
Commission expected that entities
seeking approval for transmission siting
projects under FPA section 216 would
be major transmission utilities capable
of financing complex and costly
transmission projects.108 At that time,
the Commission anticipated that the
high cost of constructing transmission
facilities would preclude entry into this
field by small entities as defined by the
RFA.109 Though the SBA size standard
for electric utilities has changed from
megawatt hours to number of employees
since Order No. 689 was issued, we
continue to find it unlikely that small
entities in any number, let alone a
substantial number, will pursue the
permitting of transmission projects
before the Commission. Since Order No.
689, only Southern California Edison,
which would not qualify as a small
entity under the SBA’s current size
standards, has participated in the
Commission’s pre-filing process for
applications to site transmission
facilities under section 216. To date, the
Commission has not received any
applications for permits to site
transmission facilities under section
216.
102. Accordingly, pursuant to section
605(b) of the RFA, the Commission
certifies that this proposed rule would
not have a significant economic impact
on a substantial number of small
entities.
VI. Comment Procedures
103. The Commission invites
interested persons to submit comments
on the matters and issues proposed in
this notice to be adopted, including any
related matters or alternative proposals
that commenters may wish to discuss.
Comments are due April 17, 2023.
104 13
CFR 121.101 (2021).
121.201.
106 The North American Industry Classification
System (NAICS) is an industry classification system
that Federal statistical agencies use to categorize
businesses for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S.
economy. United States Census Bureau, North
American Industry Classification System, https://
www.census.gov/eos/www/naics/.
107 13 CFR 121.201 (Sector 22—Utilities).
108 Order No. 689 Final Rule, 117 FERC ¶ 61,202
at P 73.
109 Id.
105 Id.
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Comments must refer to Docket No.
RM22–7–000 and must include the
commenter’s name; the organization
they represent, if applicable; and their
address in their comments. All
comments will be placed in the
Commission’s public files and may be
viewed, printed, or downloaded
remotely as described in the Document
Availability section below. Commenters
on this proposal are not required to
serve copies of their comments on other
commenters.
104. The Commission encourages
comments to be filed electronically via
the eFiling link on the Commission’s
website at https://www.ferc.gov. The
Commission accepts most standard
word processing formats. Documents
created electronically using word
processing software must be filed in
native applications or print-to-PDF
format and not in a scanned format.
Commenters filing electronically do not
need to make a paper filing.
105. Commenters that are not able to
file comments electronically may file an
original of their comment by U.S. Postal
Service mail or by courier or other
delivery services. For submission sent
via U.S. Postal Service only, filings
should be mailed to: Federal Energy
Regulatory Commission, Office of the
Secretary, 888 First Street NE,
Washington, DC 20426. Submission of
filings other than by U.S. Postal Service
should be delivered to: Federal Energy
Regulatory Commission, 12225 Wilkins
Avenue, Rockville, MD 20852.
VII. Document Availability
106. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the internet through the
Commission’s Home Page (https://
www.ferc.gov). At this time, the
Commission has suspended access to
the Commission’s Public Reference
Room due to the President’s March 13,
2020 proclamation declaring a National
Emergency concerning the Novel
Coronavirus Disease (COVID–19).
107. From the Commission’s Home
Page on the internet, this information is
available on eLibrary. The full text of
this document is available on eLibrary
in PDF and Microsoft Word format for
viewing, printing, and/or downloading.
To access this document in eLibrary,
type the docket number excluding the
last three digits of this document in the
docket number field.
108. User assistance is available for
eLibrary and the Commission’s website
during normal business hours from the
Commission’s Online Support at (202)
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502–6652 (toll free at 1–866–208–3676)
or email at ferconlinesupport@ferc.gov,
or the Public Reference Room at (202)
502–8371, TTY (202) 502–8659. Email
the Public Reference Room at
public.referenceroom@ferc.gov.
List of Subjects
18 CFR Part 50
Administrative practice and
procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 380
Environmental impact statements,
Reporting and recordkeeping
requirements.
By direction of the Commission.
Commissioner Danly is concurring with
a separate statement attached.
Commissioner Christie is concurring
with separate statement attached.
(S E A L)
Issued December 15, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.
In consideration of the foregoing, the
Commission proposes to amend Parts 50
and 380, Chapter I, Title 18, Code of
Federal Regulations, as follows.
PART 50—APPLICATIONS FOR
PERMITS TO SITE INTERSTATE
ELECTRIC TRANSMISSION FACILITIES
1. The authority citation for part 50
continues to read as follows:
Authority: 16 U.S.C. 824p; DOE
Delegation Order No. 00–004.00A.
2. Amend § 50.1 as follows:
a. Add a definition in alphabetical
order for ‘‘Environmental justice
community’’;
■ b. Remove the words ‘‘special use
authorization’’ in the definition of
‘‘Federal authorization’’ and add in its
place the words ‘‘special use
authorizations’’;
■ c. Add a definition in alphabetical
order for ‘‘Indian Tribe’’; and
■ d. Revise the definitions of ‘‘National
interest electric transmission corridor’’,
‘‘Permitting entity’’, and ‘‘Stakeholder’’.
The additions and revisions read as
follows:
■
■
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Definitions.
*
*
*
*
*
Environmental justice community
means any disadvantaged community
that has been historically marginalized
and overburdened by pollution.
Environmental justice communities
include, but may not be limited to,
minority populations, low-income
populations, or indigenous peoples.
*
*
*
*
*
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§ 50.2
[Amended]
3. Amend § 50.2 as follows:
a. Remove the word ‘‘tribes’’ in the
third sentence of paragraph (a) and add
in its place the word ‘‘Tribes’’; and
■ b. Remove the word ‘‘which’’ in
paragraph (c) and add in its place the
word ‘‘that’’.
■ 4. Amend § 50.3 by revising paragraph
(b) to read as follows:
■
■
■
§ 50.1
Indian Tribe means an Indian Tribe
that is recognized by treaty with the
United States, by Federal statute, or by
the U.S. Department of the Interior in its
periodic listing of Tribal governments in
the Federal Register in accordance with
25 CFR 83.6(a), and whose Tribal
interests may be affected by the
development and operation of the
proposed transmission facilities.
National interest electric transmission
corridor means any geographic area that
is experiencing electric energy
transmission capacity constraints or
congestion that adversely affects
consumers or is expected to experience
such energy transmission capacity
constraints or congestion, as designated
by the Secretary of Energy.
Permitting entity means any Federal
or State agency, Indian Tribe, or
multistate entity that is responsible for
issuing separate authorizations pursuant
to Federal law that are required to
construct electric transmission facilities
in a national interest electric
transmission corridor.
Stakeholder means any Federal, State,
interstate, or local agency; any Tribal
government; any affected landowner;
any environmental justice community
member; or any other interested person
or organization.
*
*
*
*
*
§ 50.3 Applications/pre-filing; rules and
format.
*
*
*
*
*
(b) Applications, amendments, and all
exhibits and other submissions required
to be furnished by an applicant to the
Commission under this part must be
submitted in electronic format.
*
*
*
*
*
■ 5. Amend § 50.4 as follows:
■ a. Revise paragraphs (a)(1) through (3);
■ b. Add paragraph (a)(4); and
■ c. Revise the first sentence of
paragraph (c)(1) introductory text and
revise paragraphs (c)(1)(ii) and (c)(2)
through (4).
The revisions and addition read as
follows:
§ 50.4
Stakeholder participation.
*
*
*
*
*
(a) * * *
(1) Identifies specific tools and
actions to facilitate stakeholder
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2783
communications and public
information, including an up-to-date
project website with an interactive
mapping component, and a readily
accessible, single point of contact for the
applicant;
(2) Lists all central locations in each
county throughout the project area
where the applicant will provide copies
of all its filings related to the proposed
project;
(3) Includes a description and
schedule explaining how the applicant
intends to respond to requests for
information from the public, permitting
entities, and other legal entities with
local authorization requirements; and
(4) Includes an Environmental Justice
Public Engagement Plan that addresses
all targeted outreach to identified
environmental justice communities.
This plan must summarize comments
received from potentially impacted
environmental justice communities
during any previous outreach activities
and describe planned targeted outreach
activities with such communities during
the pre-filing process and after the filing
of an application, including efforts to
identify, engage, and accommodate nonEnglish speaking groups or
linguistically isolated communities.
This plan must also describe how the
applicant will conduct outreach to
environmental justice communities
about any potential mitigation.
*
*
*
*
*
(c) * * *
(1) The applicant must make a good
faith effort to notify all: affected
landowners; landowners with a
residence within a quarter mile of the
edge of the construction right-of-way of
the proposed project; municipalities in
the project area; permitting entities;
other local, State, Tribal, and Federal
governments and agencies involved in
the project; electric utilities and
transmission owners and operators that
are, or may be, connected to the
proposed transmission facilities; any
known individuals or organizations that
have expressed an interest in the State
siting proceeding; and any other
individuals or organizations that have
expressed to the applicant, or its
representatives, an interest in the
proposed project. * * *
*
*
*
*
*
(ii) By twice publishing a notice of the
pre-filing request and application
filings, in a daily, weekly, and/or Tribal
newspaper of general circulation in each
county in which the project is located,
no later than 14 days after the date that
a docket number is assigned for the prefiling process or to the application.
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(2) Contents of participation notice. (i)
Any pre-filing request notification sent
by mail or published in a newspaper
must, at a minimum, include:
(A) The docket number assigned to
the proceeding;
(B) The most recent edition of the
Commission’s pamphlet Electric
Transmission Facilities Permit Process.
The newspaper notice need only refer to
the pamphlet and indicate that it is
available on the Commission’s website;
(C) A description of the applicant and
a description of the proposed project, its
location (including a general location
map), its purpose, and the proposed
project schedule;
(D) Contact information for the
applicant, including a local or toll-free
telephone number, the name of a
specific contact person who is
knowledgeable about the project, and
information on how to access the project
website;
(E) Information on how to get a copy
of the pre-filing information from the
applicant and the location(s) where
copies of the pre-filing information may
be found as specified in paragraph (b) of
this section;
(F) A copy of the Director’s
notification of commencement of the
pre-filing process, the Commission’s
internet address, and contact
information for the Commission’s Office
of Public Participation;
(G) Information explaining the prefiling and application processes and
when and how to intervene in the
application proceedings; and
(H) Information explaining that the
Commission’s pre-filing and application
processes are separate from any
simultaneous State siting proceeding(s)
and how to participate in any such State
siting proceeding(s).
(ii) In addition to the requirements of
paragraph (c)(2)(i) of this section, any
pre-filing request notification sent by
mail to an affected landowner must also
include:
(A) A general description of the
property the applicant will need from
an affected landowner if the project is
approved;
(B) The most recent edition of the
document entitled ‘‘Landowner Bill of
Rights in Federal Energy Regulatory
Commission Electric Transmission
Proceedings,’’ on its own page(s) in at
least 12-point font, legible, and
contained within the first 10 pages of
the notification; and
(C) A brief summary of what specific
rights the affected landowner has in
proceedings under the eminent domain
rules of the relevant State.
(iii) The application notification must
include the Commission’s notice issued
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under § 50.9 and restate, or clearly
identify the location of, the comment
and intervention instructions provided
in the Commission’s notice.
(3) If, for any reason, a person or
entity entitled to this notice has not yet
been identified when the notices under
this paragraph (c) are sent or published,
the applicant must supply the
information required under paragraphs
(c)(2)(i) through (iii) of this section, as
applicable, when the person or entity is
identified.
(4) If the notification is returned as
undeliverable, the applicant must make
a reasonable attempt to find the correct
address and re-send the notice.
*
*
*
*
*
■ 6. Amend § 50.5 as follows:
■ a. Revise paragraph (c) introductory
text, the first sentence of paragraph
(c)(3) introductory text, paragraph
(c)(3)(i), and the first sentence of
paragraph (c)(5);
■ b. Add paragraphs (c)(8) and (9);
■ c. Revise paragraphs (d)(1)(i) and
(e)(3)(i);
■ d. Remove paragraph (e)(3)(ii);
■ e. Redesignate paragraph (e)(3)(iii) as
(e)(3)(ii);
■ f. Revise the first sentence of
paragraph (e)(4);
■ g. Redesignate paragraphs (e)(7) and
(8) as paragraphs (e)(9) and (10),
respectively;
■ h. Add new paragraphs (e)(7) and (8);
and
■ i. Revise the first sentence of newly
redesignated paragraph (e)(10).
The revisions and additions read as
follows:
§ 50.5
Pre-filing procedures.
*
*
*
*
*
(c) Contents of the initial filing. An
applicant’s pre-filing request cannot be
filed prior to the initial consultation and
must include the following information:
*
*
*
*
*
(3) A list of the permitting entities
responsible for conducting separate
Federal permitting and environmental
reviews and authorizations for the
project, including contact names and
telephone numbers, and a list of Tribal,
State, and local entities with
authorization requirements. * * *
(i) How the applicant intends to
account for each of the relevant entity’s
permitting and environmental review
schedules, including its progress in the
Department of Energy’s pre-application
process; and
*
*
*
*
*
(5) A description of completed work,
including contacting stakeholders,
agency and Tribal consultations, project
engineering, route planning,
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environmental and engineering
contractor engagement, environmental
surveys/studies, open houses, and any
work completed or actions taken in
conjunction with a State proceeding.
* * *
*
*
*
*
*
(8) A detailed description of how the
proposed project will reduce capacity
constraints and congestion on the
transmission system.
(9) A statement indicating whether
the applicant intends to comply with
the Applicant Code of Conduct
described in § 50.12, and, if not, how
the applicant intends to ensure good
faith dealings with affected landowners.
(d) * * *
(1) * * *
(i) The notification will designate the
third-party contractor, if applicable, and
*
*
*
*
*
(e) * * *
(3) * * *
(i) Provide project notification in
compliance with the requirements of
§ 50.4(c); and
*
*
*
*
*
(4) Within 30 days, submit a mailing
list of all notifications made under
paragraph (e)(3) of this section,
including the names of the Federal,
State, Tribal, and local jurisdictions’
representatives. * * *
*
*
*
*
*
(7) Within 30 days, file supporting
information showing how the proposed
project will reduce capacity constraints
and congestion on the transmission
system, including:
(i) Full report(s) of the System Impact
Study for the proposed project;
(ii) For each transmission planning
region that would be crossed by the
proposed project, the most recent
Regional Transmission Plan; and
(iii) Expert witness testimony and
other relevant information submitted
with the State siting application(s),
where applicable.
(8) Within 30 days, file a draft Exhibit
H—System analysis data required in
§ 50.7.
*
*
*
*
*
(10) On a monthly basis, file status
reports detailing the applicant’s project
activities, including surveys,
stakeholder communications, agency
and Tribal meetings, and updates on the
status of other required permits or
authorizations. * * *
*
*
*
*
*
■ 7. Amend § 50.6 as follows:
■ a. Revise paragraph (b), the second
sentence of paragraph (c), and
paragraphs (d), (e)(1), and (e)(3)(i) and
(ii);
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b. Add paragraph (e)(3)(iii); and
c. Revise paragraph (i).
The revisions and addition read as
follows:
■
■
§ 50.6
Applications: general content.
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*
*
*
*
*
(b) A concise description of
applicant’s existing operations, if
applicable.
(c) * * * The description must, at a
minimum: identify the proposed
geographic location of the principal
project features and the planned routing
of the transmission line; contain the
general characteristics of the
transmission line, including voltage,
types of towers, point of receipt and
point of delivery, and the geographic
character of the area traversed by the
line; and be accompanied by an
overview map of sufficient scale to
show the entire transmission route on
one (or a few) 8.5 by 11-inch sheets.
(d) Verification that the proposed
route lies within a national interest
electric transmission corridor
designated by the Secretary of the
Department of Energy under section 216
of the Federal Power Act, including the
date on which the relevant corridor was
designated.
(e) * * *
(1) A State in which the transmission
facilities are to be constructed or
modified does not have the authority to
approve the siting of the facilities or
consider the interstate benefits or
interregional benefits expected to be
achieved by the proposed construction
or modification of transmission facilities
in the State;
*
*
*
*
*
(3) * * *
(i) Not made a determination on an
application seeking approval pursuant
to applicable law;
(ii) Conditioned its approval in such
a manner that the proposed construction
or modification will not significantly
reduce transmission capacity
constraints or congestion in interstate
commerce or is not economically
feasible; or
(iii) Denied an application seeking
approval pursuant to applicable law.
*
*
*
*
*
(i) A full statement as to whether any
other application to supplement or
effectuate the applicant’s proposal must
be (or is to be) filed by the applicant,
any of the applicant’s customers, or any
other person with any other Federal,
State, Tribal, or other regulatory body;
and if so, the nature and status of each
such application.
*
*
*
*
*
■ 8. Amend § 50.7 as follows:
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a. Revise the introductory text and
paragraphs (g)(1)(i) and (vi), (g)(2)(ii)
and (vi), (g)(3)(iii), (g)(4)(iii), (g)(5)
introductory text, (g)(6) introductory
text, (g)(6)(ii), (g)(8), (h)(1), the first
sentence of paragraph (h)(2)
introductory text, and paragraph
(h)(2)(ii);
■ b. Remove paragraphs (h)(3) and (4);
■ c. Redesignate paragraphs (h)(5) and
(6) as paragraphs (h)(3) and (4); and
■ d. Revise newly redesignated
paragraphs (h)(3) and (4) and paragraphs
(i)(2) and and (j).
The revisions read as follows:
■
§ 50.7
Applications: exhibits.
Each exhibit must contain a title page
showing the applicant’s name, the title
of the exhibit, and the proper letter
designation of the exhibit. If an exhibit
is 10 or more pages in length, it must
include a table of contents citing (by
page, section number, or subdivision)
the component elements or matters
contained in the exhibit.
*
*
*
*
*
(g) * * *
(1) * * *
(i) Name, point of receipt, and point
of delivery of the project;
*
*
*
*
*
(vi) Line design features that
minimize audible corona noise during
fog/rain caused by operation of the
proposed facilities.
(2) * * *
(ii) Type of structures, including
overhead and underground structures;
*
*
*
*
*
(vi) A list of the names of all new (and
existing, if applicable) substations or
switching stations that will be
associated with the proposed
transmission line.
(3) * * *
(iii) Width of the right-of-way; and
*
*
*
*
*
(4) * * *
(iii) Conductor size, conductor type,
and number of conductors per phase.
(5) If the proposed project includes an
overhead transmission line, the
following additional information also
must be provided:
*
*
*
*
*
(6) If an underground or underwater
transmission line is proposed, the
following additional information also
must be provided:
*
*
*
*
*
(ii) Type of cable and a description of
any required supporting equipment,
such as pressurizing plants;
*
*
*
*
*
(8) Any other data or information
identified as a minimum requirement
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2785
for the siting of a transmission line in
the State in which the facility will be
located.
(h) * * *
(1) An analysis of the existing and
expected capacity constraints and
congestion on the electric transmission
system.
(2) Steady-state, short-circuit, and
dynamic power flow cases, as
applicable, used to analyze the existing
transmission system, proposed project,
and future transmission system under
anticipated load growth, operating
conditions, variations in power import
and export levels, generation additions
and retirements, and additional
transmission facilities required for
system reliability. * * *
*
*
*
*
*
(ii) State the assumptions, criteria,
and guidelines upon which the models
are based and take into consideration
transmission facility loading, planned
and forecasted forced outage rate for
generation and transmission, generation
dispatch scenarios, system protection,
and system stability.
(3) A concise analysis of how the
proposed project will:
(i) Improve system reliability over the
long and short term;
(ii) Impact long-term regional
transmission expansion plans;
(iii) Impact congestion on the
applicant’s entire system and
neighboring systems; and
(iv) Incorporate any advanced
technology design features, if
applicable.
(4) Single-line diagrams, including
existing system facilities identified by
name and circuit number, that show
system transmission elements, in
relation to the project and other
principal interconnected system
elements, as well as power flow and loss
data that represent system operating
conditions.
(i) * * *
(2) The estimated capital cost and
estimated annual operations and
maintenance expense of each proposed
mitigation measure.
*
*
*
*
*
(j) Exhibit J—Construction, operation,
and management. A concise statement
providing arrangements for supervision,
management, engineering, accounting,
legal, or other similar services to be
rendered in connection with the
construction, operation, and
maintenance of the project, if not to be
performed by employees of the
applicant, including reference to any
existing or contemplated agreements,
together with a statement showing any
affiliation between the applicant and
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(i) The request is no longer pending
before the Commission;
(ii) The record of the proceeding is
filed with the court of appeals; or
(iii) 90 days has passed after the date
that the request for rehearing may be
deemed to have been denied under 16
U.S.C. 825l(a).
*
*
*
*
*
■ 12. Add § 50.12 to read as follows:
any parties to the agreements or
arrangements.
§ 50.8
[Amended]
9. Amend § 50.8 as follows:
a. Remove the word ‘‘applicant’s’’ in
the second sentence of paragraph (b)
and add in its place the word
‘‘applicant’’; and
■ b. Remove the comma directly
following the word ‘‘rejected’’ in
paragraph (c).
■ 10. Amend § 50.9 by revising
paragraph (b) to read as follows:
■
■
§ 50.9
§ 50.12 Applicant code of conduct for
landowner engagement.
Notice of Application
*
*
*
*
*
(b) The notice will establish prompt
and binding intermediate milestones
and ultimate deadlines for the review of,
and Federal authorization decisions
relating to, the proposed facilities.
§ 50.11
[Amended]
11. Amend § 50.11 as follows:
a. Revise paragraph (a) and the second
sentence of paragraph (b);
■ b. Add a sentence at the end of
paragraph (d) introductory text and add
paragraphs (d)(1) and (2);
■ c. Remove the word ‘‘permitee’’ in the
first sentence of paragraph (e) and add
in its place the word ‘‘permittee’’;
■ d. Remove the word ‘‘Order’’ in the
first sentence of paragraph (g)
introductory text and add in its place
the word ‘‘order’’; and
■ e. Remove the word ‘‘Orders’’ in
paragraph (g)(2) and add in its place the
word ‘‘orders’’.
The revisions and addition read as
follows:
■
■
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§ 50.11 General conditions applicable to
permits.
(a) The following terms and
conditions, along with others that the
Commission finds are required by the
public interest, will attach to the
issuance of each permit and to the
exercise of the rights granted under the
permit.
(b) * * * Provided that, when an
applicant files for rehearing of the order
in accordance with FPA section 313(a),
the acceptance must be filed within 30
days after final disposition of the
request for rehearing. * * *
*
*
*
*
*
(d) * * * Provided that, no
authorization to proceed with
construction activities will be issued:
(1) Until the time for the filing of a
request for rehearing under 16 U.S.C.
825l(a) has expired with no such request
being filed, or
(2) If a timely request for rehearing
raising issues reflecting opposition to
project construction, operation, or need
is filed, until:
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Under section 216(e)(1) of the Federal
Power Act, any applicant that may,
upon receipt of a permit, seek to acquire
the necessary right-of-way by the
exercise of the right of eminent domain
must demonstrate to the Commission
that it has made good faith efforts to
engage with landowners and other
stakeholders early in the applicable
permitting process. An applicant’s
commitment to and compliance with
the Applicant Code of Conduct in its
communications with affected
landowners during the permitting
process is one way to demonstrate to the
Commission that such good faith efforts
have been made.
(a) Applicant code of conduct. To
promote good faith engagement with
affected landowners, applicants
committing to comply with the
Applicant Code of Conduct must:
(1) For the duration of the pre-filing
and application review process, develop
and retain a log of discussions with
affected landowners, organized by name
and property address, that includes:
(i) The name of the affected
landowner;
(ii) The substance of the items
discussed;
(iii) The nature of the contact (such as
in-person, virtual meeting, telephone,
electronic mail);
(iv) The date of the contact; and
(v) The status of discussions with the
affected landowner following the
contact, including any permissions
granted, negotiations, or future meetings
scheduled.
(2) In addition to the pre-filing request
notification required by § 50.4(c)(1)(i)
and (ii), provide to each affected
landowner, prior to, during, or
immediately after the first contact, a
document that, at a minimum, includes:
a description of the project, a
description of the Commission and its
role, a map of the project route, and the
Landowner Bill of Rights in the form
described in § 50.4(c)(2)(ii)(B). If the
first contact with the affected landowner
is in-person, the applicant must offer to
provide the affected landowner at least
one paper copy of the document. If the
first contact with the affected landowner
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is by telephone, text, or electronic mail,
the applicant may provide the affected
landowner with a copy of the document
by electronic means or by first class
mail, at the affected landowner’s
preference. The applicant must review
the provisions of the document with the
affected landowner upon request.
(3) Ensure that any representative
acting on the applicant’s behalf states
their full name, title, and employer, as
well as the name of the applicant that
they represent, at the beginning of any
discussion with an affected landowner,
and provides the representative’s
contact information, including mailing
address, telephone number, and
electronic mail address, prior to the end
of the discussion.
(4) Ensure that all communications
with affected landowners are factually
correct. The applicant must correct any
statements made by it or any
representative acting on its behalf that it
becomes aware were:
(i) Inaccurate when made; or
(ii) Have been rendered inaccurate
based on subsequent events, within
three business days of discovery of any
such inaccuracy.
(5) Ensure that communications with
affected landowners do not
misrepresent the status of the
discussions or negotiations between the
parties.
(6) Provide affected landowners with
updated contact information whenever
an applicant’s contact information
changes.
(7) Communicate respectfully with
affected landowners and avoid
harassing, coercive, manipulative, or
intimidating communications or highpressure tactics.
(8) Except as otherwise provided by
State or local law, abide by an affected
landowner’s request to end the
communication or for the applicant or
its representative to leave the affected
landowner’s property.
(9) Except as otherwise provided by
State or local law, obtain an affected
landowner’s permission prior to
entering the property, including for
survey or environmental assessment,
and leave the property without
argument or delay if the affected
landowner revokes permission.
(10) Refrain from discussing an
affected landowner’s communications
or negotiations status with any other
affected landowner.
(11) Provide the affected landowner
with a copy of any appraisal that has
been prepared by, or on behalf of, the
applicant for that affected landowner’s
property, if any, before discussing the
value of the property in question.
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(12) Ensure that any representative
acting on the applicant’s behalf
complies with all provisions of the
Applicant Code of Conduct described in
this paragraph (a).
(b) Compliance with Applicant Code
of Conduct. Applicants committing to
comply with the Applicant Code of
Conduct must:
(1) File, as part of the pre-filing
request required by § 50.5(c), an
affirmative statement that the applicant
intends to comply with the Applicant
Code of Conduct.
(2) Include, as part of the monthly
status reports required by § 50.5(e)(10):
(i) An affirmation that the applicant
and its representatives have, to the best
of their knowledge, complied with the
Applicant Code of Conduct during the
month in question; or
(ii) A detailed explanation of any
instances of non-compliance with the
Applicant Code of Conduct during the
month in question and any remedial
actions taken or planned.
(3) Identify, in a filing with the
Commission or as part of the monthly
status reports required by § 50.5(e)(10),
any known instances of non-compliance
that were not disclosed in prior monthly
status reports and explain any remedial
actions taken in the current month to
address instances of non-compliance
occurring in prior months.
(c) Compliance with an alternative
method. Applicants not committing to
comply with the Applicant Code of
Conduct must:
(1) File, as part of the pre-filing
request required by § 50.5(c):
(i) An affirmative statement that the
applicant intends to rely on an
alternative method of demonstrating
that it meets the good faith efforts
standard;
(ii) A detailed explanation of the
alternative method of demonstrating
that it meets the good faith efforts
standard, including any commitments to
record-keeping, information-sharing, or
other conduct;
(iii) An explanation of how the
alternative method is equal to or
superior to compliance with the
Applicant Code of Conduct as a means
to ensure the good faith efforts standard
is met;
(iv) An explanation, for each
component of the Applicant Code of
Conduct with which it does not comply,
why it did not follow that component;
and
(v) An explanation, for each
component of the Applicant Code of
Conduct with which it does not comply,
why the alternative method is an equal
or better means to ensure the good faith
standard is met notwithstanding that
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deviation from the Applicant Code of
Conduct.
PART 380—REGULATIONS
IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
13. The authority citation for part 380
continues to read as follows:
■
Authority: 42 U.S.C. 4321–4370h, 7101–
7352; E.O. 12009, 3 CFR 1978 Comp., p. 142.
14. Amend § 380.2 by redesignating
paragraphs (f) and (g) as paragraphs (g)
and (h) and adding new paragraph (f).
The addition reads as follows:
■
§ 380.2
Definitions and terminology.
*
*
*
*
*
(f) Environmental justice community
means any disadvantaged community
that has been historically marginalized
and overburdened by pollution.
Environmental justice communities
include, but may not be limited to,
minority populations, low-income
populations, or indigenous peoples.
*
*
*
*
*
§ 380.13
[Amended]
15. Amend § 380.13 in paragraph
(b)(2)(i) by adding ‘‘or § 380.16, as
applicable’’ directly after the reference
to ‘‘§ 380.12’’.
■
§ 380.14
[Amended]
16. Amend § 380.14 in paragraph (a)
introductory text as follows:
■ a. Remove the parenthetical reference
to ‘‘16 U.S.C. 470(f)’’ in the first
sentence and adding, in its place, a
parenthetical reference to ‘‘54 U.S.C.
306108’’; and
■ b. Add the ‘‘or § 380.16(f), as
applicable’’ directly after the reference
to ‘‘380.12(f)’’.
■ 17. Amend § 380.16 as follows:
■ a. Revise the second sentence of
paragraph (a)(1), revise paragraph (b)(3),
revise the first sentence of paragraph (c)
introductory text and the first sentence
of paragraph (c)(1), and revise
paragraphs (c)(2)(i) through (iii) and
(c)(3) and (4);
■ b. Revise paragraph (d)(6) and the
second sentence of paragraph (d)(7);
■ c. Revise paragraph (e)(3), the first two
sentences of paragraph (e)(4), the first
and third sentences of paragraph (e)(5),
and paragraphs (e)(6) through (8);
■ d. Revise paragraphs (f)(1)(i), (iii), (iv),
and (v), (f)(2) introductory text, and the
first sentence of paragraph (f)(4);
■ e. Revise the first sentence of
paragraph (g) introductory text and
paragraphs (g)(3) and (6);
■ f. Redesignate paragraphs (k) through
(m) as paragraphs (n) through (p);
■ g. Redesignate paragraphs (h) through
(j) as paragraphs (j) through (l);
■
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h. Add new paragraphs (h) and (i);
i. Revise the heading and the second
sentence of newly redesignated
paragraph (j) introductory text and
revise newly redesignated paragraph
(j)(3);
■ j. Revise the newly redesignated
paragraph (k) heading and paragraphs
(k) introductory text and (k)(2) and (3);
■ k. Add paragraph (k)(4);
■ l. Revise newly redesignated
paragraph (l);
■ m. Add new paragraph (m);
■ n. Revise the newly redesignated
paragraph (n) heading and introductory
text, the second sentence of newly
redesignated paragraph (n)(2)(i), and the
second sentence of newly redesignated
paragraph (n)(2)(ii);
■ o. Revise the newly redesignated
paragraph (o) heading and introductory
text, newly redesignated paragraphs
(o)(1) through (4), the first sentence of
newly redesignated paragraph (o)(5),
and newly redesignated paragraph
(o)(7); and
■ p. Revise the newly redesignated
paragraph (p) heading, the second
sentence of newly redesignated
paragraph (p) introductory text, the
third sentence of newly redesignated
paragraph (p)(2), and newly
redesignated paragraphs (p)(3)(i) and
(iii) and (p)(4).
The revisions and additions read as
follows:
■
■
§ 380.16 Environmental reports for Section
216 Federal Power Act Permits.
(a) * * *
(1) * * * The environmental report
must include the 14 resource reports
and related material described in this
section.
*
*
*
*
*
(b) * * *
(3) Identify the effects of construction,
operation (including malfunctions), and
maintenance, as well as cumulative
effects resulting from the incremental
effects of the project when added to the
effects of other past, present, and
reasonably foreseeable actions;
*
*
*
*
*
(c) * * * This report must describe
facilities associated with the project;
special construction, operation, and
maintenance procedures; construction
timetables; future plans for related
construction; compliance with
regulations and codes; and permits that
must be obtained. * * *
(1) Describe and provide location
maps of all project facilities (such as
transmission line towers, substations,
and any appurtenant facilities) to be
constructed, modified, replaced, or
removed, and related construction and
operational support activities and areas,
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such as maintenance bases, staging
areas, communications towers, power
lines, and new access roads (roads to be
built or modified). * * *
(2) * * *
(i) Current, original United States
Geological Survey (USGS) 7.5–minute
series topographic maps, or maps of
equivalent detail, covering at least a
0.5–mile-wide corridor centered on the
electric transmission facility centerline,
with integer mileposts identified,
showing the location of rights-of-way,
new access roads, other linear
construction areas, substations, and
construction materials storage areas.
Nonlinear construction areas must be
shown on maps at a scale of 1:3,600, or
larger, keyed graphically and by
milepost to the right-of-way maps. The
topographic maps must depict the
facilities identified under paragraph
(l)(5) of this section, including any
facilities located outside of the 0.5-milewide corridor.
(ii) Original aerial images or
photographs or photo-based alignment
sheets based on these sources, not more
than one year old (unless older ones
accurately depict current land use and
development) and with a scale of
1:6,000, or larger, showing the proposed
transmission line route and location of
transmission line towers, substations
and appurtenant facilities, covering at
least a 0.5-mile-wide corridor, and
including mileposts. The aerial images
or photographs or photo-based
alignment sheets must show all existing
transmission facilities located in the
area of the proposed facilities and the
facilities identified under paragraph
(l)(5) of this section, including any
facilities located outside of the 0.5-milewide corridor. Older images/
photographs/alignment sheets must be
modified to show any facilities not
depicted in the original. Alternative
formats (e.g., blue-line prints of
acceptable resolution) need prior
approval by the environmental staff of
the Commission’s Office of Energy
Projects.
(iii) In addition to the requirements
under § 50.3(b) of this chapter, the
applicant must contact the
environmental staff of the Office of
Energy Projects regarding the need for
any additional copies of topographic
maps and aerial images/photographs.
(3) Describe and identify, by milepost,
proposed general construction and
restoration methods, and any special
methods to be used in areas of rugged
topography, residential areas, active
croplands, and sites where explosives
are likely to be used. Describe any
proposed horizontal directional drilling
and pile driving that may be necessary.
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(4) Identify the number of
construction spreads, average workforce
requirements for each construction
spread and estimated duration of
construction from initial clearing to
final restoration. Indicate the days of the
week and times of the day that proposed
construction activities would occur and
describe any proposed nighttime
construction activities.
*
*
*
*
*
(d) * * *
(6) Discuss proposed mitigation
measures to reduce the potential for
adverse impacts to surface water,
wetlands, or groundwater quality.
Discuss the potential for blasting or
contamination/spills to affect water
wells, springs, and wetlands, and
measures to be taken to detect and
remedy such effects. Describe the
impact of proposed land clearing and
vegetation management practices,
including herbicide treatment, in the
project area on water resources.
(7) * * * Identify locations of
Environmental Protection Agency or
State-designated, sole-source aquifers
and wellhead protection areas crossed
by the proposed transmission line
facilities.
(e) * * *
(3) Describe and provide the acreage
of vegetation cover types that would be
affected, including unique ecosystems
or communities, such as remnant
prairie, interior forest, or old-growth
forest, or significant individual plants,
such as old-growth specimen trees.
(4) Describe the impact of
construction, operation, and
maintenance on aquatic and terrestrial
species and their habitats, including the
possibility of a major alteration to
ecosystems or biodiversity, and any
potential impact on State-listed
endangered or threatened species.
Describe the impact of proposed land
clearing and vegetation management
practices, including herbicide treatment,
in the project area on fish, wildlife, and
vegetation. * * *
(5) Identify all federally listed or
proposed threatened or endangered
species and critical habitat that
potentially occur in the vicinity of the
project. * * * The application must
include the results of any required
surveys unless seasonal considerations
make this impractical. * * *
(6) Identify all federally listed
essential fish habitat (EFH) that
potentially occurs in the vicinity of the
project. Provide information on all EFH,
as identified by the pertinent Federal
fishery management plans, that may be
adversely affected by the project and the
results of abbreviated consultations with
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the National Marine Fisheries Service,
and any resulting EFH assessments.
(7) Describe proposed, site-specific
mitigation measures to minimize
impacts on fisheries, wildlife, and
vegetation.
(8) Include copies of correspondence
not provided under paragraph (e)(5) of
this section, containing
recommendations from appropriate
Federal and State fish and wildlife
agencies to avoid or limit impacts on
wildlife, fisheries, and vegetation, and
the applicant’s response to the
recommendations.
(f) * * *
(1) * * *
(i) Documentation of the applicant’s
initial cultural resource consultations,
including consultations with Native
Americans and other interested persons
(if appropriate);
*
*
*
*
*
(iii) An Evaluation Report, as
appropriate;
(iv) A Treatment Plan, as appropriate;
and
(v) Written comments from State
Historic Preservation Officer(s) (SHPO),
Tribal Historic Preservation Officers
(THPO), as appropriate, and applicable
land-management agencies on the
reports in paragraphs (f)(1)(i) through
(iv) of this section.
(2) The application or pre-filing
documents, as applicable, must include
the documentation of initial cultural
resource consultation(s), the Overview
and Survey Reports, if required, and
written comments from SHPOs, THPOs,
and land-management agencies, if
available. The initial cultural resource
consultations should establish the need
for surveys. If surveys are deemed
necessary by the consultation with the
SHPO/THPO, the survey reports must
be filed with the application or prefiling documents.
*
*
*
*
*
(4) The applicant must request
privileged treatment for all material
filed with the Commission containing
location, character, and ownership
information about cultural resources in
accordance with § 388.112 of this
chapter. * * *
*
*
*
*
*
(g) * * * This report must identify
and quantify the impacts of project
construction, operation, and
maintenance on factors affecting
municipalities and counties in the
vicinity of the project. * * *
*
*
*
*
*
(3) Describe on-site manpower
requirements and payroll during
construction, operation, and
maintenance, including the number of
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construction personnel who currently
reside within the impact area, will
commute daily to the site from outside
the impact area, or will relocate
temporarily within the impact area.
*
*
*
*
*
(6) Conduct a fiscal impact analysis
evaluating incremental local
government expenditures in relation to
incremental local government revenues
that will result from the project.
Incremental expenditures include, but
are not limited to, school operation,
road maintenance and repair, public
safety, and public utilities.
(h) Resource Report 6—Tribal
resources. This report must describe
Indian Tribes, Tribal lands, and Tribal
interests that may be affected by the
proposed project. Resource Report 6
must:
(1) Identify Indian Tribes that may be
affected by the construction, operation,
and maintenance of the proposed
transmission facilities.
(2) Describe the impacts of
construction, operation, and
maintenance of the project on Indian
Tribes and Tribal interests, including
those related to: water use and quality;
wildlife and vegetation; cultural and
historic resources; socioeconomics;
geological resources; soils; land use,
recreation, and aesthetics; air quality
and environmental noise; traffic; and
health.
(3) Identify project impacts that may
affect Tribal interests not necessarily
associated with resources specified in
paragraph (h)(2) of this section, e.g.,
treaties, Tribal practices, or agreements
between the Indian Tribe and entities
other than the applicant.
(4) Identify Indian Tribes that may
attach religious and cultural
significance to historic properties
within the proposed project right-of-way
or in the project vicinity, as well as
available information on Indian
traditional cultural and religious
properties, whether on or off of any
Indian reservation.
(5) Ensure that information made
available under this section not include
specific site or property locations, the
disclosure of which will create a risk of
harm, theft, or destruction of
archaeological or Tribal cultural
resources or to the site at which the
resources are located, or which would
violate any Federal law, including the
Archaeological Resources Protection Act
of 1979, 16 U.S.C. 470hh, and the
National Historic Preservation Act of
1966, 54 U.S.C. 307103.
(i) Resource Report 7—Environmental
justice. This report must address the
effects of the proposed project on
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environmental justice communities, as
defined in § 380.2 of this chapter.
Resource Report 7 must:
(1) Identify environmental justice
communities within the area of
potential project impacts using current
guidance and data, including localized
data, from the Environmental Protection
Agency, the Council, the Census
Bureau, and other authoritative sources.
Provide maps depicting identified
environmental justice communities in
relation to the proposed project facilities
using granular data.
(2) Describe the impacts of
construction, operation, and
maintenance of the project on
environmental justice communities,
including those related to: water use
and quality; wildlife and vegetation;
cultural and historic resources;
socioeconomics; geological resources;
soils; land use, recreation, and
aesthetics; air quality and
environmental noise; traffic; and health.
Identify any disproportionately high
and adverse impacts on environmental
justice communities.
(3) Discuss any cumulative impacts
on environmental justice communities,
regarding resources affected by the
project, including whether any
cumulative impacts would be
disproportionately high and adverse.
Describe the proposed project’s impacts
in relation to the aggregation of past,
present, and reasonably foreseeable
actions taken by Federal or non-Federal
entities, and the environmental justice
communities’ capacity to tolerate
additional impacts.
(4) Describe any proposed mitigation
measures to avoid or minimize impacts
on environmental justice communities,
including any community input
received on the proposed measures and
how the input informed the proposed
measures.
(j) Resource Report 8—Geological
resources. * * * Resource Report 8
must:
*
*
*
*
*
(3) Describe how the project will be
located or designed to avoid or
minimize adverse effects to geological
resources or risk to itself. Describe any
geotechnical investigations and
monitoring that would be conducted
before, during, and after construction.
Discuss the potential for blasting to
affect structures and the proposed
measures to be taken to remedy such
effects.
*
*
*
*
*
(k) Resource Report 9—Soils. This
report must describe the soils that will
be affected by the proposed project, the
effect on those soils, and measures
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proposed to minimize or avoid impacts.
Resource Report 9 must:
*
*
*
*
*
(2) Identify, by milepost, potential
impacts from: soil erosion due to water,
wind, or loss of vegetation; soil
compaction and damage to soil structure
resulting from movement of
construction vehicles; wet soils and
soils with poor drainage that are
especially prone to structural damage;
damage to drainage tile systems due to
movement of construction vehicles and
trenching activities; and interference
with the operation of agricultural
equipment due to the possibility of large
stones or blasted rock occurring on or
near the surface as a result of
construction.
(3) Identify, by milepost, cropland
and residential areas where project
construction may result in the loss of
soil fertility, including any land
classified as prime or unique farmland
by the U.S. Department of Agriculture,
Natural Resources Conservation Service.
(4) Describe any proposed mitigation
measures to reduce the potential for
adverse impacts to soils or agricultural
productivity.
(l) Resource Report 10—Land use,
recreation, and aesthetics. This report
must describe the existing uses of land
in the project vicinity and changes to
those land uses that will occur if the
project is approved. The report must
discuss proposed mitigation measures,
including the protection and
enhancement of existing land use.
Resource Report 10 must:
(1) Describe the width and acreage
requirements of all construction and
permanent rights-of-way for project
construction, operation and
maintenance.
(i) List, by milepost, locations where
the proposed construction or permanent
rights-of-way would be adjacent to
existing rights-of-way of any kind.
(ii) Identify, preferably by diagrams,
existing rights-of-way that will be used
for a portion of the construction or
permanent rights-of-way, the overlap
and how much additional width will be
required.
(iii) Identify the total amount of land
to be purchased or leased for each
project facility; the amount of land that
would be disturbed for construction,
operation, and maintenance of the
facility; and the proposed use of the
remaining land not required for project
operation and maintenance, if any.
(iv) Identify the size of typical staging
areas and expanded work areas, such as
those at railroad, road, and waterbody
crossings, and the size and location of
all construction materials storage yards
and access roads.
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(2) Identify, by milepost, the existing
use of lands crossed by, or adjacent to,
the proposed project facilities or rightsof-way.
(3) Describe planned development on
land crossed by, or within 0.25 mile of,
the proposed facilities, the time frame
(if available) for such development, and
proposed coordination to minimize
impacts on land use. Planned
development means development that is
included in a master plan or is on file
with the local planning board or the
county.
(4) Identify, by milepost and length of
crossing, the area of direct effect of each
proposed facility and operational site on
sugar maple stands; orchards and
nurseries; landfills; operating mines;
hazardous waste sites; State wild and
scenic rivers; State or local designated
trails; nature preserves; game
management areas; remnant prairie; oldgrowth forest; interior forest; national or
State forests or parks; golf courses;
designated natural, recreational or
scenic areas; registered natural
landmarks; Native American religious
sites and traditional cultural properties
(to the extent they are known to the
public at large) and reservations; lands
identified under the Special Area
Management Plan of the Office of
Coastal Zone Management, National
Oceanic and Atmospheric
Administration; and lands owned or
controlled by Federal or State agencies
or private preservation groups. Also
identify if any of those areas are located
within 0.25 mile of any proposed
facility.
(5) Identify and describe buildings,
electronic installations, airstrips,
airports, and heliports in the project
vicinity. The facilities identified under
this paragraph (l)(5) must be depicted
on the maps and photographs in
Resource Report 1, as required by
paragraph (c)(2) of this section.
(i) Buildings: List all single-family and
multi-family dwellings and related
structures, mobile homes, apartment
buildings, commercial structures,
industrial structures, business
structures, churches, hospitals, nursing
homes, schools, or other structures
normally inhabited by humans or
intended to be inhabited by humans on
a daily or regular basis within a 0.5mile-wide corridor centered on the
proposed transmission line alignment.
Provide a general description of each
habitable structure and its distance from
the centerline of the proposed project.
In cities, towns, or rural subdivisions,
houses can be identified in groups.
Provide the number of habitable
structures in each group and list the
distance from the centerline to the
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closest habitable structure in the group.
Provide a list of all habitable structures
within 200 feet of a proposed
construction work area for all proposed
project facilities, including transmission
line towers, substations, access roads,
and appurtenant facilities; a general
description of each habitable structure;
and the distance of each habitable
structure from the proposed
construction work area.
(ii) Electronic installations: List all
commercial AM radio transmitters
located within 10,000 feet of the
centerline of the proposed project and
all FM radio transmitters, microwave
relay stations, or other similar electronic
installations located within 2,000 feet of
the centerline of the proposed project.
Provide a general description of each
installation and its distance from the
centerline of the proposed project.
(iii) Airstrips, Airports, and Heliports:
List all known private airstrips within
10,000 feet of the centerline of the
project. List all airports registered with
the Federal Aviation Administration
(FAA), with at least one runway more
than 3,200 feet in length, that are
located within 20,000 feet of the
centerline of the proposed project.
Indicate whether any transmission
structures will exceed a 100:1 horizontal
slope (one foot in height for each 100
feet in distance) from the closest point
of the closest runway. List all airports
registered with the FAA having no
runway more than 3,200 feet in length
that are located within 10,000 feet of the
centerline of the proposed project.
Indicate whether any transmission
structures will exceed a 50:1 horizontal
slope from the closest point of the
closest runway. List all heliports located
within 5,000 feet of the centerline of the
proposed project. Indicate whether any
transmission structures will exceed a
25:1 horizontal slope from the closest
point of the closest landing and takeoff
area of the heliport. Provide a general
description of each private airstrip,
registered airport, and registered
heliport, and state the distance of each
from the centerline of the proposed
transmission line. Include copies of any
consultation with the FAA.
(6) Describe any areas crossed by, or
within 0.25 mile of, the proposed
transmission project facilities that are
included in, or are designated for study
for inclusion in: the National Wild and
Scenic Rivers System (16 U.S.C. 1271),
the National Trails System (16 U.S.C.
1241), or a wilderness area designated
under the Wilderness Act (16 U.S.C.
1132).
(7) For facilities within a designated
coastal zone management area, provide
a consistency determination or evidence
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that the applicant has requested a
consistency determination from the
State’s coastal zone management
program.
(8) Describe the impact the project
will have on present uses of the affected
areas as identified above, including
commercial uses, mineral resources,
recreational areas, public health and
safety, and the aesthetic value of the
land and its features. Describe any
temporary or permanent restrictions on
land use resulting from the project.
(9) Describe proposed mitigation
measures intended for all special use
areas identified under this section.
(10) Identify the area of potential
visual effects from the proposed project.
Describe the visual characteristics of the
lands and waters affected by the project,
including any visually sensitive areas,
visual classifications, and key
viewpoints in the project vicinity.
Describe how the transmission line
project facilities will impact the visual
character and scenic quality of the
landscape and proposed mitigation
measures to lessen these impacts.
Provide visual aids to support the
textual descriptions required by this
paragraph.
(11) Demonstrate that applications for
rights-of-way authorizations or other
proposed land uses have been, or soon
will be, filed with Federal landmanagement agencies with jurisdiction
over land that would be affected by the
project.
(m) Resource Report 11—Air quality
and environmental noise. This report
must estimate emissions from the
proposed project and the corresponding
impacts on air quality and the
environment, estimate the impact of the
proposed project on the noise
environment, and describe proposed
measures to mitigate the impacts.
Resource Report 11 must:
(1) Describe the existing air quality in
the project area, indicate if any project
facilities are located within a designated
nonattainment or maintenance area
under the Clean Air Act (42 U.S.C. 7401
et seq.), and provide the distance from
the project facilities to any Class I area
in the project vicinity.
(2) For proposed substations and
appurtenant facilities, quantitatively
describe existing noise levels at nearby
noise-sensitive areas, such as schools,
hospitals, or residences.
(i) Report existing noise levels as the
Leq (day), Leq (night), and Ldn and
include the basis for the data or
estimates.
(ii) Include a plot plan that identifies
the locations and duration of noise
measurements, time of day, weather
conditions, wind speed and direction,
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engine load, and other noise sources
present during each measurement.
(iii) Identify any State or local noise
regulations that may be applicable to the
project facilities.
(3) Estimate emissions from the
proposed project and the corresponding
impacts on air quality and the
environment.
(i) Estimate the reasonably foreseeable
emissions from construction, operation,
and maintenance of the project facilities
(such as emissions from tailpipes,
equipment, fugitive dust, open burning,
and substations) expressed in tons per
year. Include supporting calculations,
emissions factors, fuel consumption
rates, and annual hours of operation.
(ii) For each designated
nonattainment or maintenance area,
provide a comparison of the emissions
from construction, operation, and
maintenance of the project facilities
with the applicable General Conformity
thresholds (40 CFR part 93).
(iii) Identify the corresponding
impacts on communities and the
environment in the project area from the
estimated emissions.
(iv) Describe any proposed mitigation
measures to control emissions identified
under this section.
(4) Estimate the impact of the
proposed project on the noise
environment.
(i) Provide a quantitative estimate of
the impact of transmission line
operation on noise levels at the edge of
the proposed right-of-way, including
corona, insulator, and Aeolian noise.
For proposed substations and
appurtenant facilities, provide a
quantitative estimate of the impact of
operations on noise levels at nearby
noise-sensitive areas, including discrete
tones.
(A) Include step-by-step supporting
calculations or identify the computer
program used to model the noise levels,
input and raw output data and all
assumptions made when running the
model, far-field sound level data for
maximum facility operation, and source
of the data.
(B) Include sound pressure levels for
project facilities, dynamic insertion loss
for structures, and sound attenuation
from the project facilities to the edge of
the right-of-way or to nearby noisesensitive areas (as applicable).
(C) Far-field sound level data
measured from similar project facilities
in service elsewhere, when available,
may be substituted for manufacturer’s
far-field sound level data.
(D) The operational noise estimates
must demonstrate that the proposed
project will comply with applicable
State and local noise regulations and
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that noise attributable to any proposed
substation or appurtenant facility does
not exceed a day-night sound level
(Ldn) of 55 dBA at any pre-existing
noise-sensitive area.
(ii) Describe the impact of proposed
construction activities, including any
nighttime construction, on the noise
environment. Estimate the impact of any
horizontal directional drilling, pile
driving, or blasting on noise levels at
nearby noise-sensitive areas and include
supporting assumptions and
calculations.
(iii) Describe any proposed mitigation
measures to reduce noise impacts
identified under this section.
(n) Resource Report 12—Alternatives.
This report must describe alternatives to
the project and compare the
environmental impacts (as identified in
Resource Reports 1 through 11 of this
section) of such alternatives to those of
the proposal. * * * Resource Report 12
must:
*
*
*
*
*
(2) * * *
(i) * * * Where applicable, identify
the location of such alternatives on
maps of sufficient scale to depict their
relationship to the proposed action and
existing rights-of-way; and
(ii) * * * Provide comparative tables
showing the differences in
environmental characteristics for the
alternatives and proposed action. * * *
(o) Resource Report 13—Reliability
and safety. This report must address the
potential hazards to the public from
failure of facility components resulting
from, among other things, accidents or
natural catastrophes; how these events
would affect reliability; and proposed
procedures and design features to
reduce potential hazards. Resource
Report 13 must:
(1) Discuss hazards, environmental
impacts, and service interruptions that
could reasonably ensue from failure of
the proposed facilities.
(2) Describe proposed measures to
protect the public from failure of the
proposed facilities (including
coordination with local agencies).
(3) Discuss proposed design and
operational measures to avoid or reduce
risk, including any measures to ensure
that the proposed project facilities
would be resilient against future climate
change impacts in the project area.
(4) Discuss proposed contingency
plans for maintaining service or
reducing downtime to ensure that the
proposed facilities would not adversely
affect the bulk electric system in
accordance with applicable North
American Electric Reliability
Corporation reliability standards.
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(5) Describe proposed measures to
exclude the public from hazardous
areas. * * *
*
*
*
*
*
(7) Discuss the potential for electrical
noise from electric and magnetic fields,
including shadowing and reradiation, as
they may affect health or
communication systems along the
transmission right-of-way.
*
*
*
*
*
(p) Resource Report 14—Design and
engineering. * * * If the version of this
report submitted with the application is
preliminary in nature, the applicant
must state that in the application. * * *
*
*
*
*
*
(2) * * * If a permit is granted on the
basis of preliminary designs, the
applicant must submit final design
drawings for written approval by the
Director of the Office of Energy Projects
prior to commencement of any
construction of the project.
(3) * * *
(i) An assessment of the suitability of
the locations of proposed transmission
line towers, substations, and
appurtenant structures based on
geological and subsurface
investigations, including investigations
of soils and rock borings and tests
evaluating all foundations and
construction materials;
*
*
*
*
*
(iii) An identification of all borrow
areas and quarry sites and an estimate
of required quantities of suitable
construction material; and
*
*
*
*
*
(4) The applicant must submit the
supporting design report described in
paragraph (p)(3) of this section at the
time preliminary and final design
drawings are filed. If the report contains
preliminary drawings, it must be
designated as a ‘‘Preliminary Supporting
Design Report.’’
Note: The following appendix will not
appear in the Code of Federal Regulations.
Appendix
Draft Version: Landowner Bill of Rights in
Federal Energy Regulatory Commission
Electric Transmission Proceedings
1. You have the right to receive
compensation if your property is necessary
for the construction or modification of an
authorized project. The amount of such
compensation would be determined through
a negotiated easement agreement between
you and the entity applying to the Federal
Energy Regulatory Commission
(Commission) for authorization to construct a
transmission line (applicant) or through an
eminent domain proceeding in the
appropriate Federal or State court. The
applicant cannot seek to take a property by
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eminent domain unless and until the
Commission approves the application, unless
otherwise provided by State or local law.
2. You have the right to request the full
name, title, contact information including
email address and phone number, and
employer of every representative of the
applicant that contacts you about your
property.
3. You have the right to access information
about the proposed project through a variety
of methods, including by accessing the
project website that the applicant must
maintain and keep current, by visiting a
central location in your county designated by
the applicant for review of project
documents, or by accessing the Commission’s
eLibrary online document information
system at www.ferc.gov.
4. You have the right to participate,
including by filing comments and, after an
application is filed, by intervening in any
open Commission proceedings regarding the
proposed transmission project in your area.
Deadlines for making these filings may apply.
For more information about how to
participate and any relevant deadlines,
contact the Commission’s Office of Public
Participation by phone (202–502–6595) or by
email (OPP@ferc.gov).
5. When contacted by the applicant or a
representative of the applicant either in
person, by phone, or in writing, you have the
right to communicate or not to communicate.
You also have the right to hire counsel to
represent you in your dealings with the
applicant and to direct the applicant and its
representatives to communicate with you
only through your counsel.
6. The applicant may seek to negotiate a
written easement agreement with you that
would govern the applicant’s and your rights
to access and use the property that is at issue
and describe other rights and responsibilities.
You have the right to negotiate or to decline
to negotiate an easement agreement with the
applicant; however, if the Commission
approves the proposed project and
negotiations fail or you chose not to engage
in negotiations, there is a possibility that
your property could be taken through an
eminent domain proceeding, in which case
the appropriate Federal or State court would
determine fair compensation.
7. You have the right to hire your own
appraiser or other professional to appraise
the value of your property or to assist you in
any easement negotiations with the applicant
or in an eminent domain proceeding before
a court.
8. Except as otherwise provided by State or
local law, you have the right to grant or deny
access to your property by the applicant or
its representatives for preliminary survey
work or environmental assessments, and to
limit any such grant in time and scope.
9. In addition to the above rights, you may
have additional rights under Federal, State,
or local laws.
United States of America
Federal Energy Regulatory Commission
Applications for Permits to Site Interstate
Electric Transmission Facilities Docket
No. RM22–7–000
(Issued December 15, 2022)
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DANLY, Commissioner, concurring:
1. I concur with the issuance of this Notice
of Proposed Rulemaking (NOPR) because it is
not my habit to oppose any but the most
infirm proposed rules. Today’s issuance
purports to be the first step in discharging the
Commission’s obligations under
Infrastructure Investment and Jobs Act,1
which, among other things, included
amendments to certain provisions of section
216 of the Federal Power Act 2 (FPA) to
clarify Federal ‘‘backstop’’ siting of electric
transmission facilities in limited
circumstances when states fail to act on
certain transmission proposals. The NOPR
itself, however, largely appears to be an
exercise to extend various environmental
reviews typically seen in natural gas project
proceedings—a regime in which the majority
of the Commission has been imposing
pervasive, standardless environmental tests
well beyond our statutory authority.
2. I agree that our ‘‘backstop’’ siting
authority is limited under the Commission’s
governing statutes. I disagree that the limited
‘‘backstop’’ siting authority that the
Commission has been granted also confers
extensive powers as an environmental and
social regulator. Regardless, the statute
certainly did not extend our obligations
beyond the requirements we have always
observed in order to discharge our duties
under the National Environmental Policy Act
(NEPA).
3. In going far beyond that which is
required by the Infrastructure Investment and
Jobs Act, this NOPR instead appears to
represent the majority’s ‘‘environmental
justice’’ wish list. Accordingly, I specifically
solicit citations to the provisions in section
216, as amended—or any other statutory
basis—to support each revision proposed in
the NOPR (such citations are often omitted in
the NOPR itself).3 Once statutory authority is
certain, commenters should further provide
legal analysis and evidence whether the
proposed rule constitutes good policy, such
as, for example, whether it will be beneficial
in determining whether to site electric
transmission projects when the states have
not done so, or whether the rule will tend to
ensure almost nothing is ever sited.
4. For example, we propose to ‘‘require
[electric transmission project] applicants to
1 Public
Law 117–58, § 40105, 135 Stat. 429.
U.S.C. 824p (2018).
3 As amended by the Infrastructure Investment
and Jobs Act, FPA section 216(a)(4)(G) provides that
in determining whether to designate a national
interest electric transmission corridor the Secretary
of Energy ‘‘may consider’’ whether the designation
‘‘avoids and minimizes, to the maximum extent
practicable, and offsets to the extent appropriate
and practicable, sensitive environmental areas and
cultural heritage sites.’’ 16 U.S.C. 824p(a)(4),
824p(a)(4)(G)(ii). As amended, FPA section
216(e)(1) provides that a permit holder may acquire
rights-of-way by the exercise of eminent domain if,
among other things, ‘‘in the determination of the
Commission, the permit holder has made good faith
efforts to engage with landowners and other
stakeholders early in the applicable permitting
process.’’ Id. § 824p(e)(1). It is stretching these
amendments to FPA section 216 beyond their
breaking point to use them to justify the scope of
environmental review the Commission now
proposes in the NOPR.
2 16
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develop and file an Environmental Justice
Public Engagement Plan as part of their
Project Participation Plan under
§ 50.4(a)(4).’’ 4 The Commission does not cite
any statute that requires or even permits us
to require this Environmental Justice Public
Engagement Plan, instead citing Executive
Orders, at least one of which the majority
acknowledges does not bind the
Commission.5 The Commission further
‘‘proposes to define the term ‘environmental
justice community’ as any disadvantaged
community that has been historically
marginalized and overburdened by pollution,
including, but not limited to, minority
populations, low-income populations, or
indigenous peoples.’’ 6 What does it mean to
be ‘‘overburdened by pollution?’’ Is this a
concept that the Commission—a Federal
energy rate regulator—is authorized and
equipped to define or establish? Will the
regulated community of transmission
developers have any idea how to comply
with such ambiguities? Is there anything
about being ‘‘overburdened’’ in the
Infrastructure Investment and Jobs Act?
5. The Commission also seeks to decree
that the Environmental Justice Public
Engagement Plan must ‘‘describe the manner
in which the applicant will reach out to
environmental justice communities about
potential mitigation,’’ 7 or, in other words,
include a mitigation plan, even though
‘‘NEPA not only does not require agencies to
discuss any particular mitigation plans that
they might put in place, it does not require
agencies—or third parties—to effect any.’’ 8
Commenters should tell us how the
Commission can impose such a requirement
when the Supreme Court and the D.C. Circuit
have ruled otherwise.
6. By way of further example, as part of its
NEPA review, the Commission proposes to
require applicants to submit ‘‘Resource
Report 10’’ on ‘‘Air quality and
environmental noise.’’ 9 ‘‘Proposed Resource
Report 10 would require the applicant to
estimate emissions from the proposed project
. . . and describe proposed measures to
mitigate the impacts.’’ 10 ‘‘Specifically, the
4 Applications for Permits to Site Interstate Elec.
Transmission Facilities, 181 FERC ¶ 61,205 at P 31
(2022) (NOPR); see also 18 CFR 50.4(a).
5 NOPR, 181 FERC ¶ 61,205 at PP 30, 65, n.72.
The Commission also proposes to require a new
‘‘Environmental Justice Report’’ as part of its
regulations implementing NEPA. See id. PP 65–67.
Again, I would like to know where the Commission
gets this authority. We also ‘‘expect applicants to
utilize the latest guidance and data from [the
Council on Environmental Quality], [the
Environmental Protection Agency], the Census
Bureau, and other authoritative sources.’’ Id. P 67.
Does the ‘‘latest’’ guidance and data include
anything issued after pre-filing but before
permitting? What about the day after permitting?
What about during the pendency of a rehearing
request? And who or what are ‘‘other authoritative
sources?’’
6 Id. P 32 (emphasis added).
7 Id. P 31.
8 Citizens Against Burlington, Inc. v. Busey, 938
F.2d 190, 206 (D.C. Cir. 1991) (citing Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 353
& n.16 (1989)).
9 NOPR, 181 FERC ¶ 61,205 at P 69.
10 Id.
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applicant must provide the reasonably
foreseeable emissions from construction,
operation, and maintenance of the project
facilities . . . and describe any proposed
mitigation measures to control emissions.’’ 11
Someone better propose some standards
because these proposals sound much more
like aspirational goals than clear rules that a
developer could figure out how to comply
with. What are ‘‘foreseeable emissions’’ from
‘‘maintenance,’’ for example? If a
transmission line falls in a storm, is a
transmission developer supposed to predict
‘‘reasonably foreseeable’’ emissions from the
truck the utility line worker uses to drive out
to the site? If the line worker uses a
rechargeable ratchet to loosen a bolt, is the
transmission developer supposed to predict
the ‘‘reasonably foreseeable’’ emissions from
electric generation required to recharge the
battery? And, again, by what authority do we
propose to require a mitigation plan over
directly contrary judicial precedent? 12
7. As another example, the Commission
proposes to ‘‘add language to § 50.11(d) that
would, under certain circumstances and for
a limited time, preclude the issuance of
authorizations to proceed with construction
of transmission facilities authorized under
FPA section 216 while requests for rehearing
of orders issuing permits remain pending
before the Commission.’’ 13 Though in a
different context and sounding in a different
statute, the majority imposed a similar
policy, including the issuance of stays, for
natural gas projects, over my dissent.14 I
solicit comment whether we have this
authority, and if so, whether it is sound
policy to exercise it as part of our limited
‘‘backstop’’ siting jurisdiction.
8. I have similar questions to those raised
here about nearly every aspect of the
NOPR.15 The powers that Congress has
granted the Commission are narrow, as has
been acknowledged, but they are profound
and, depending upon how the Commission
implements those authorities, can have a
lasting effect on the development of the
transmission system. Accordingly, I invite
comments from every interested party on my
questions and any other aspect of the
proposed rules so that the Commission will
have a full record as it considers whether to
promulgate these or related rules.
9. It is hard to reconcile today’s proposed
rule, adorned as it is by burdensome,
unnecessary requirements, with what
appears, at the merest glance, to have been
the purpose of Congress when passing the
Infrastructure Investment and Jobs Act—to
facilitate, not inhibit, the siting of
transmission infrastructure.
11 Id.
P 70.
supra P 5 n.8.
13 NOPR, 181 FERC ¶ 61,205 at P 47.
14 See Limiting Authorizations to Proceed with
Constr. Activities Pending Rehearing, Order No.
871–B, 175 FERC ¶ 61,098 (Danly, Comm’r,
dissenting), order on reh’g, 176 FERC ¶ 61,062
(2021) (Danly, Comm’r, dissenting).
15 For example, I question whether we are
complying with the purpose of the act to engage in
parallel activity with the states during the pendency
of the states’ review of transmission project
proposals, a subject that Commissioner Christie has
thoroughly canvassed in his separate statement to
this order.
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12 See
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For these reasons, I respectfully concur.
James P. Danly,
Commissioner.
United States of America
Federal Energy Regulatory Commission
Applications for Permits to Site Interstate
Electric Transmission Facilities Docket
No. RM22–7–000
(Issued December 15, 2022)
CHRISTIE, Commissioner, concurring:
1. Updating the Commission’s existing
regulations and practices governing the
Commission’s exercise of its transmission
siting backstop authority is required by a
statutory change adopted last year by
Congress.1 While, of course, we must
implement the change made by Congress, a
simple update to our existing regulation
would have been sufficient. This order,2
however, goes beyond merely implementing
the required conforming changes to our
existing regulation. So while I concur with
putting these amendments out for comment,
I look forward to reviewing the comments on
this proposal, particularly from organizations
representing State regulators.
2. Some relevant history: States have
historically had sole authority for permitting
and siting transmission lines (two very
separate functions), and for good reasons.
Every power line, from the small ones below
100 kV to the huge 765 kV lines, visible for
many miles around, comes with its own
unique set of facts and local concerns. One
of those concerns—let us not forget—is the
cost, and that cost will be paid, in some
portion, by consumers in the situs state,
through FERC formula rates. So, whenever
the day comes when FERC orders a line built
after a State has found it was not needed or
found the cost was not reasonable and
prudent, FERC will not only be choosing a
route that was rejected by State regulators,
but FERC will be ordering the State’s
consumers to pay for the project, under
applicable cost allocation rules. And even if
the proposed project ends up being litigated
for years before any steel is in the ground—
a virtual certainty for a controversial project
that was rejected by State regulators but
imposed by FERC—consumers will likely be
paying through formula rates for years for
pre-construction costs, which can be
substantial.3
1 The
Infrastructure Investment and Jobs Act
(IIJA), Public Law 117–58, 40105, 135 Stat. 429
(2021), amended section 216 of the Federal Power
Act (FPA) in certain respects. Most notably, it
explicitly allows the Commission to grant
transmission siting authority even when a State has
denied an application within one year. 16 U.S.C.
824p(b)(1)(C) (as amended by IIJA section 1221).
2 Applications for Permits to Site Interstate
Electric Transmission Facilities, 181 FERC ¶ 61,205
(2022) (Backstop Siting NOPR).
3 For example, the Potomac-Appalachian
Transmission Highline (PATH) Project—which was
abandoned, and never even completed—spawned
several years of litigation and imposed many
millions of dollars in costs (including return on
equity) to ratepayers. See Newman v. FERC, 27
F.4th 690 (D.C. Cir. 2022) (noting that PATH sought
recovery through rates of over $121 million in
abandonment costs alone, charges that were
litigated over several years).
PO 00000
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Fmt 4701
Sfmt 4700
2793
3. State regulators are much better
prepared to deal with that myriad of local
concerns, including concerns over routing
and costs, than FERC. Furthermore, State
processes are far more convenient and userfriendly than processes at FERC, if for no
other reason than geographic proximity. So,
waiting one full year to allow a State to ‘‘go
first’’ and make its decision makes sense for
a lot of reasons. One obvious reason is that
if the line is truly needed, the State regulators
will in all likelihood approve it, and no FERC
staff time and resources will need to be
expended at all. The whole mantra that goes
‘‘the states are blocking needed transmission
all over the country!’’ is simply a political
and special-interest narrative. The steadily
mounting increases over the past decade in
transmission rate base nationally,4 with
concomitant skyrocketing increases in
transmission costs to consumers, blows up
the narrative that states are systemically
blocking needed transmission lines. Contrary
to the narrative, states need more authority
to scrutinize transmission projects for need
and prudence of cost, not less, to protect
consumers.
4. This proposed regulation changes the
practice this Commission adopted in 2006 of
holding off on all processes here for a year,
to one in which pre-filing processes will
begin, potentially concurrent with the
initiation of State proceedings.5 That change
is not required by last year’s congressional
action. It is an act of discretion.
5. Some more history: The Energy Policy
Act of 2005 6 altered the traditional
arrangement of State authority by creating
FPA section 216, which provided this
Commission with supplemental or
‘‘backstop’’ siting authority in certain narrow
circumstances. This authority was limited,
not plenary: As discussed in greater detail in
the order, EPAct 2005 explicitly authorized
the Commission to exercise transmission
siting authority in DOE-designated ‘‘nationalinterest’’ transmission corridors when a State
application had been rendered futile because
the State lacks authority to act, the applicant
lacks standing to obtain authority from the
State, the State attaches conditions rendering
the project infeasible, or the State fails to act
within one year.7
6. In Order No. 689, the Commission
implemented this new FPA section 216
authority.8 In doing so, it construed that
4 See, e.g., RRA Regulatory Focus An Overview of
Transmission Ratemaking in the U.S.—2021
Update, S&P Global Market Intelligence, Sept. 16,
2021 (‘‘Growth in aggregate transmission rate base,
2012–2020’’ chart at page 3, showing increase from
$57.8 billion to $131.7 billion); see also Jim
O’Reilly, PJM, AEP transcos drive 9.17% YOY
[year-over-year] increase in US transmission rate
base, S&P Capital IQ Pro, November 1, 2022
(‘‘Transmission rate base among a group of 76
utilities in the U.S. maintained year-over-year
growth above 9% for the third consecutive
year. . . .’’.’’) (emphasis added).
5 Backstop Siting NOPR, 181 FERC ¶ 61,205 at PP
21–23.
6 Public Law 109–58, 1221, 119 Stat. 594 (2005)
(amended 2021) (EPAct 2005).
7 See Backstop Siting NOPR, 181 FERC ¶ 61,205
at PP 2–7.
8 Regulations for Filing Applications for Permits
to Site Interstate Electric Transmission Facilities,
E:\FR\FM\17JAP2.SGM
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17JAP2
2794
Federal Register / Vol. 88, No. 10 / Tuesday, January 17, 2023 / Proposed Rules
authority expansively in two respects. First,
it construed the statute as vesting siting
authority in the Commission even when a
State acts within a year to deny an
application. Second, it construed the statute
as ‘‘permit[ting] parallel Commission-State
processes.’’ 9 But these expansive
constructions were promptly curbed: the
first, by the Fourth Circuit Court of Appeals;
the second, by the Commission itself.
7. As for the first, the Fourth Circuit
correctly found in Piedmont that Congress
had not, in fact, authorized the Commission
to grant an application that had been timely
denied by a State.10 In direct response to the
Fourth Circuit’s opinion, last year Congress
expanded the Commission’s FPA section 216
a notch further, by empowering the
Commission essentially to exercise a veto
over a State’s timely decision to deny a
transmission siting application. In other
words, in the IIJA, Congress sought to (and
did) overturn the key holding in Piedmont.
8. As for the second, the Commission
wisely decided that ‘‘that States which have
authority to approve the siting of facilities
should have one full year to consider a siting
application without there being any
khammond on DSKJM1Z7X2PROD with PROPOSALS2
Order No. 689, FERC Stats. & Regs. ¶ 31,234 (2006)
(Order No. 689), reh’g denied, 119 FERC ¶ 61,154
(2007).
9 Id. P 20; see also id. P 19 (same). I won’t opine
on whether this construction is correct or not—
though seemingly reasonable, it doesn’t seem to be
rooted in anything more than an inference from the
fact that the Commission may act if the State has
failed to do so within a year—but I will observe that
it is not compelled by citations to the statutory text
or legislative history.
10 Piedmont Envtl. Council v. FERC, 558 F.3d 304
(4th Cir. 2009) (Piedmont), cert. denied, 558 U.S.
1147 (2010).
VerDate Sep<11>2014
20:28 Jan 13, 2023
Jkt 259001
overlapping Commission process,’’ and
therefore found that, ‘‘in cases where our
jurisdiction rests on FPA section 216(b)(1)(C),
the pre-filing process should not commence
until one year after the relevant State
applications have been filed.’’ 11 This policy
was not set in stone, of course—the
Commission noted that it would ‘‘reconsider
the issue’’ if in the future it turned out ‘‘that
the lack of a Commission pre-filing process
prior to the end of the one year is delaying
projects or otherwise not in the public
interest.’’ 12
9. This was sound policy in 2006, and I am
not convinced that the intervening years have
taught us that ‘‘the lack of a Commission prefiling process prior to the end of the one year
is delaying projects or otherwise not in the
public interest.’’ 13 Nor did Congress, in the
IIJA, do anything to suggest that
commencement of the Commission’s prefiling process should be accelerated—
although of course it could have.
10. Nonetheless, I support this order, in its
current form, because I believe that the
proposal to allow states a 90-day comment
period following a year of pre-filing
processes may afford adequate protection for
the states and their processes, provided that
the Commission’s pre-filing process does not
begin before the relevant State processes have
been commenced. This order actually invites
comment on whether FERC’s pre-filing
processes should be allowed to commence
prior to the initiation of State proceedings.14
11 Order
No. 689, FERC Stats. & Regs. ¶ 31,234 at
P 21 (footnote omitted).
12 Id.
13 Id.
14 Backstop Siting NOPR, 181 FERC ¶ 61,205 at P
23.
PO 00000
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Fmt 4701
Sfmt 9990
I would not even have raised that prospect.
I ask states in particular to review closely and
comment on these provisions. There are also
other examples of this order going beyond
where it needed to go.15
11. To be clear, I have no concern with
informal communications between
applicants and Commission staff before the
states have had a year to act. Nor do I have
any concern with allowing an initial
consultation or other preparatory work
during this one-year period. But as discussed
above, I believe strongly that the states
should have an opportunity to complete their
processes without any impediment or
distraction from Commission proceedings.
12. I support revising the Commission’s
Regulations to reflect the modest expansion
of its authority worked on FPA section 216
by the IIJA, and I am inclined to believe that
the 90-day comment period afforded to states
at the close of a year’s worth of pre-filing may
adequately protect a State’s interests. To that
extent, I support putting this order out for
comment and I look forward to the comments
the Commission will receive.
For these reasons, I concur.
Mark C. Christie,
Commissioner.
[FR Doc. 2022–27716 Filed 1–13–23; 8:45 am]
BILLING CODE 6717–01–P
15 For example, the order proposes a new
regulatory definition of ‘‘environmental justice
community.’’ Id. P 32. This concept has been in flux
since it was created and it continues to evolve;
nothing in the IIJA’s amendments to FPA section
216 either explicitly or implicitly requires the
Commission to adopt any such definition at all
herein.
E:\FR\FM\17JAP2.SGM
17JAP2
]]>Agencies
[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Proposed Rules]
[Pages 2770-2794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27716]
[[Page 2769]]
Vol. 88
Tuesday,
No. 10
January 17, 2023
Part II
Department of Energy
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Federal Energy Regulatory Commission
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18 CFR Parts 50 and 380
Applications for Permits To Site Interstate Electric Transmission
Facilities; Proposed Rule
Federal Register / Vol. 88 , No. 10 / Tuesday, January 17, 2023 /
Proposed Rules
[[Page 2770]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 50 and 380
[Docket No. RM22-7-000]
Applications for Permits To Site Interstate Electric Transmission
Facilities
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission proposes to revise
its existing regulations governing applications for permits to site
electric transmission facilities under section 216 of the Federal Power
Act, as amended by the Infrastructure Investment and Jobs Act of 2021.
DATES: Comments are due April 17, 2023.
ADDRESSES: Comments, identified by docket number, may be filed in the
following ways. Electronic filing through https://www.ferc.gov is
preferred.
Electronic Filing: Documents must be filed in acceptable
native applications and print-to-PDF, but not in scanned or picture
format.
For those unable to file electronically, comments may be
filed by U.S. Postal Service mail or by hand (including courier)
delivery.
[cir] Mail via U.S. Postal Service only: Addressed to: Federal
Energy Regulatory Commission, Office of the Secretary, 888 First Street
NE, Washington, DC 20426.
[cir] For delivery via any other carrier (including courier):
Deliver to: Federal Energy Regulatory Commission, Office of the
Secretary, 12225 Wilkins Avenue, Rockville, MD 20852.
The Comment Procedures section of this document contains more
detailed filing procedures.
FOR FURTHER INFORMATION CONTACT:
Brandon Cherry (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8328, [email protected].
Cleo Deschamps (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8377, [email protected].
SUPPLEMENTARY INFORMATION:
United States of America
Federal Energy Regulatory Commission
Applications for Permits To Site Interstate Electric Transmission
Facilities Docket No. RM22-7-000
Notice of Proposed Rulemaking
Table of Contents
Paragraph
Nos.
I. Background............................................... 2
A. Energy Policy Act of 2005 and FPA Section 216........ 2
B. Order No. 689........................................ 9
C. Piedmont & California Wilderness Judicial Decisions.. 11
D. IIJA Amendments to FPA Section 216................... 14
II. Discussion.............................................. 17
A. Commission Jurisdiction and State Siting Proceedings. 17
1. IIJA Amendments to FPA Section 216(b)(1)(C)...... 18
2. Commencement of Pre-Filing....................... 19
B. Eminent Domain Authority and Applicant Efforts To 24
Engage With Landowners and Other Stakeholders..........
C. Environmental Justice Public Engagement Plan......... 30
D. Other Proposed Revisions to 18 CFR Part 50........... 32
1. Section 50.1--Definitions........................ 32
2. Section 50.3--Filing and Formatting Requirements. 34
3. Section 50.4--Stakeholder Participation.......... 35
4. Section 50.5--Pre-Filing Procedures.............. 40
5. Section 50.6--General Content of Applications.... 42
6. Section 50.7--Application Exhibits............... 44
7. Section 50.11--General Permit Conditions......... 46
8. Proposed Clarifying Revisions to 18 CFR Part 50.. 48
E. Regulations Implementing NEPA........................ 49
1. Tribal Resources Resource Report................. 63
2. Environmental Justice Resource Report............ 65
3. Air Quality and Environmental Noise Resource 68
Report.............................................
4. Visual Resources................................. 72
5. Additional Proposed Revisions to 18 CFR 380.16... 74
6. Proposed Revisions to 18 CFR 380.13 and 380.14... 83
III. Information Collection Statement....................... 84
IV. Environmental Analysis.................................. 98
V. Regulatory Flexibility Act............................... 99
VI. Comment Procedures...................................... 103
VII. Document Availability.................................. 106
181 FERC ] 61,205
United States of America
Federal Energy Regulatory Commission
Before Commissioners: Richard Glick, Chairman; James P. Danly, Allison
Clements, Mark C. Christie, and Willie L. Phillips.
Applications for Permits to Site Interstate Electric Transmission
Facilities Docket No. RM22-7-000
Notice of Proposed Rulemaking
(Issued December 15, 2022)
1. On November 15, 2021, the Infrastructure Investment and Jobs Act
(IIJA) became law.\1\ The IIJA, among other things, amended section 216
of the Federal Power Act (FPA), which provides for Federal siting of
electric transmission facilities under certain circumstances. The
Federal Energy
[[Page 2771]]
Regulatory Commission (Commission) proposes to amend its regulations
governing applications for permits to site electric transmission
facilities to ensure consistency with the IIJA's amendments to FPA
section 216, to modernize certain regulatory requirements, and to
incorporate other updates and clarifications to provide for the
efficient and timely review of permit applications.
---------------------------------------------------------------------------
\1\ Public Law 117-58, sec. 40105, 135 Stat. 429 (2021).
---------------------------------------------------------------------------
I. Background
A. Energy Policy Act of 2005 and FPA Section 216
2. The authority to site electric transmission facilities has
traditionally resided solely with the States. However, the August 8,
2005 enactment of the Energy Policy Act of 2005 (EPAct 2005) \2\
established a limited Federal role in electric transmission siting by
adding section 216 to the FPA. Under section 216, Federal siting
authority for electric transmission facilities (as defined in that
section) is divided between the Department of Energy (DOE) and the
Commission. Section 216(a) directs DOE, on a triennial basis, to
conduct a study and issue a report on electric transmission congestion
and permits DOE to designate certain transmission-constrained or
congested geographic areas as national interest electric transmission
corridors (National Corridors). Section 216(b) authorizes the
Commission in certain instances to issue permits for the construction
or modification of electric transmission facilities in areas that DOE
has designated as National Corridors.
---------------------------------------------------------------------------
\2\ Public Law 109-58, sec. 1221, 119 Stat. 594 (2005) (amended
2021).
---------------------------------------------------------------------------
3. As originally enacted in EPAct 2005, section 216(b)(1)
authorized the Commission to issue permits to construct or modify
electric transmission facilities in a National Corridor if it found
that: (A) a State in which such facilities are located lacks the
authority to approve the siting of the facilities or consider the
interstate benefits expected to be achieved by the proposed
construction or modification of transmission facilities in the State;
\3\ (B) the permit applicant is a transmitting utility but does not
qualify to apply for a permit or siting approval in a State because the
applicant does not serve end-use customers in the State; \4\ or (C) a
State commission or entity with siting authority has withheld approval
of the facilities for more than one year after an application is filed
or one year after the designation of the relevant National Corridor,
whichever is later, or the State conditions the construction or
modification of the facilities in such a manner that the proposal will
not significantly reduce transmission congestion in interstate commerce
or is not economically feasible.\5\
---------------------------------------------------------------------------
\3\ 16 U.S.C. 824p(b)(1)(A) (2018).
\4\ Id. 824p(b)(1)(B) (2018).
\5\ Id. 824p(b)(1)(C) (2018).
---------------------------------------------------------------------------
4. In addition, before issuing a permit, sections 216(b)(2) through
(6) required the Commission to find that the proposed facilities: (1)
will be used for the transmission of electricity in interstate
commerce; (2) are consistent with the public interest; (3) will
significantly reduce transmission congestion in interstate commerce and
protect or benefit consumers; (4) are consistent with sound national
energy policy and will enhance energy independence; and (5) will
maximize, to the extent reasonable and economical, the transmission
capabilities of existing towers or structures.\6\
---------------------------------------------------------------------------
\6\ 16 U.S.C. 824p(b)(2)-(6) (as amended by IIJA section 1221).
---------------------------------------------------------------------------
5. Section 216(e) authorized a permit holder, if unable to reach
agreement with a property owner, to use eminent domain to acquire the
necessary right-of-way for the construction or modification of
transmission facilities for which the Commission has issued a permit
under section 216(b).\7\ Federal and State-owned land was expressly
excluded from the purview of section 216(e) and thus could not be
acquired via eminent domain.\8\
---------------------------------------------------------------------------
\7\ Id. 824p(e)(1).
\8\ Id.
---------------------------------------------------------------------------
6. Section 216(h)(2) designated DOE as the lead agency for purposes
of coordinating all Federal authorizations and related environmental
reviews needed to construct proposed electric transmission facilities.
To ensure timely and efficient reviews and permit decisions, under
section 216(h)(4)(A), DOE is required to establish prompt and binding
intermediate milestones and ultimate deadlines for all Federal reviews
and authorizations required for a proposed electric transmission
facility.\9\ Under section 216(h)(5)(A), DOE, as lead agency, in
consultation with other affected agencies, is required to prepare a
single environmental review document that would be used as the basis
for all decisions for proposed projects under Federal law.
---------------------------------------------------------------------------
\9\ Under FPA section 216(h)(6)(A), if any agency has denied a
Federal authorization required for a transmission facility, or has
failed to act by the deadline established by the Secretary of DOE,
the applicant or any State in which the facility would be located
may file an appeal with the President.
---------------------------------------------------------------------------
7. On May 16, 2006, the Secretary of DOE delegated to the
Commission authority to implement parts of section 216(h), specifically
paragraphs (2), (3), (4)(A)-(B), and (5), for the proposed transmission
facilities in designated National Corridors for which an applicant has
applied to the Commission for issuance of a permit under section
216(b).\10\ Specifically, the Secretary delegated DOE's lead agency
responsibilities to the Commission for the purposes of coordinating all
applicable Federal authorizations and related environmental reviews and
preparing a single environmental review document for proposed
facilities under the Commission's siting jurisdiction.\11\
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\10\ See DOE Delegation Order No. 00-004.00A.
\11\ While Congress has provided the authority to establish
prompt and binding milestones and deadlines for the review of, and
Federal authorization decisions relating to, facilities proposed
under section 216, 16 U.S.C. 824p(h)(4)(A), efficient processing of
applications will depend upon agencies complying with the
established milestones and deadlines.
---------------------------------------------------------------------------
8. As discussed further below, the IIJA amended certain provisions
of section 216 that pertain to the Commission's permitting authority.
B. Order No. 689
9. Section 216(c)(2) of the FPA required the Commission to issue
rules specifying the form of, and the information to be contained in,
an application for proposed construction or modification of electric
transmission facilities in National Corridors, and the manner of
service of notice of the permit application on interested persons.
Pursuant to this statutory requirement, on November 16, 2006, the
Commission issued Order No. 689, which implemented new regulations for
section 216 permit applications by adding part 50 to the Commission's
regulations.\12\ In addition, Order No. 689 adopted certain
modifications to the Commission's regulations implementing the National
Environmental Policy Act of 1969 (NEPA) in part 380 to ensure that the
Commission is provided sufficient information to conduct an
environmental analysis of a proposed electric transmission project.
---------------------------------------------------------------------------
\12\ Regulations for Filing Applications for Permits to Site
Interstate Elec. Transmission Facilities, Order No. 689, 71 FR 69440
(Dec. 1, 2006), 117 FERC ] 61,202 (2006) (Order No. 689 Final Rule),
reh'g denied, 119 FERC ] 61,154 (2007) (Order No. 689 Rehearing
Order).
---------------------------------------------------------------------------
10. In Order No. 689, the Commission addressed a question of
statutory interpretation raised by commenters concerning the text of
section 216(b)(1)(C), which, at the time, conferred jurisdiction to the
Commission whenever a State had withheld approval of a State siting
[[Page 2772]]
application for more than one year.\13\ The Commission interpreted the
phrase ``withheld approval'' to include any action that resulted in an
applicant not receiving State approval within one year, including a
State's express denial of an application to site transmission
facilities.\14\
---------------------------------------------------------------------------
\13\ Order No. 689 Final Rule, 117 FERC ] 61,202 at PP 24-31;
Order No. 689 Rehearing Order, 119 FERC ] 61,154 at PP 7-23.
\14\ Order No. 689 Final Rule, 117 FERC ] 61,202 at P 26; Order
No. 689 Rehearing Order, 119 FERC ] 61,154 at P 11.
---------------------------------------------------------------------------
C. Piedmont & California Wilderness Judicial Decisions
11. In 2009, the U.S. Court of Appeals for the Fourth Circuit
(Fourth Circuit), in Piedmont Environmental Council v. FERC,\15\ held
that the Commission's interpretation of ``withheld approval'' was
contrary to the plain meaning of the statute, and that the Commission's
permitting authority does not apply when a State has affirmatively
denied a permit application within the one-year deadline.\16\ In
addition, the Fourth Circuit vacated the Commission's transmission-
related amendments to its regulations implementing NEPA, finding that
the Commission had failed to consult with the Council on Environmental
Quality (CEQ) before adopting the revisions.\17\
---------------------------------------------------------------------------
\15\ 558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147
(2010) (Piedmont).
\16\ Id. at 313.
\17\ Id. at 319, 320.
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12. Two years later, the U.S. Court of Appeals for the Ninth
Circuit (Ninth Circuit), in California Wilderness Coalition v. DOE,
considered petitions for review challenging DOE's actions following the
enactment of section 216.\18\ In August 2006, DOE had issued a
Congestion Study, which identified two critically congested areas in
the Mid-Atlantic and Southern California.\19\ Based on the results of
the Congestion Study, in October 2007, DOE formally designated two
National Corridors, the Mid-Atlantic and the Southwest Area
Corridors.\20\ The Ninth Circuit vacated DOE's Congestion Study and
National Corridor designations, finding that the agency: (1) failed to
properly consult with affected States in preparing the Congestion
Study, as required by section 216; and (2) failed to consider the
environmental effects of the National Corridor designations under
NEPA.\21\
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\18\ 631 F.3d 1072 (9th Cir. 2011) (California Wilderness).
\19\ Id. at 1081 (citing National Electric Transmission
Congestion Study, 71 FR 45047 (Aug. 8, 2006)).
\20\ Id. at 1083 (citing National Electric Transmission
Congestion Report, 72 FR 56992 (Oct. 5, 2007)).
\21\ Id. at 1096, 1106.
---------------------------------------------------------------------------
13. Since the Ninth Circuit decision in 2011, DOE has not
designated any National Corridors, and the Commission has not received
any applications for permits to site electric transmission facilities.
D. IIJA Amendments to FPA Section 216
14. On November 15, 2021, the IIJA amended section 216 of the FPA.
As relevant to the Commission's permitting authority, the IIJA amended
section 216(b)(1)(C) by deleting the phrase ``withheld approval'' and
by incorporating revisions to the statutory text. As amended, section
216(b)(1)(C) provides that the Commission's permitting authority is
triggered when a State commission or other entity with authority to
approve the siting of the transmission facilities: (i) has not made a
determination on an application by one year after the later of the date
on which the application was filed or the date on which the relevant
National Corridor was designated; (ii) has conditioned its approval
such that the proposed project will not significantly reduce
transmission capacity constraints or congestion in interstate commerce
or is not economically feasible; or (iii) has denied an
application.\22\ This statutory amendment resolves the jurisdictional
issue at the heart of Piedmont by giving the Commission permitting
authority when a State has denied an application.\23\
---------------------------------------------------------------------------
\22\ 16 U.S.C. 824p(b)(1)(C) (as amended by IIJA section 1221).
\23\ Id. 824p(b)(1)(C)(iii).
---------------------------------------------------------------------------
15. Additionally, the IIJA amended section 216(e), which grants a
permit holder the right to acquire the necessary right-of-way by
eminent domain.\24\ As amended, section 216(e)(1) requires the
Commission to determine, as a precondition to such eminent domain
authority, that a permit holder has made good faith efforts to engage
with landowners and other stakeholders early in the applicable
permitting process.\25\
---------------------------------------------------------------------------
\24\ Id. 824p(e)(1).
\25\ See id.
---------------------------------------------------------------------------
16. With respect to DOE's authority, the IIJA amended section
216(a)(2) to expand the circumstances under which DOE may designate a
National Corridor. In addition to geographic areas currently
experiencing transmission capacity constraints or congestion that
adversely affects consumers, DOE may designate National Corridors in
geographic areas expected to experience such constraints or congestion.
The IIJA also amended section 216(a)(4) to expand the factors that DOE
may consider in determining whether to designate a National Corridor.
II. Discussion
A. Commission Jurisdiction and State Siting Proceedings
17. Section 216(b)(1)(C) of the FPA addresses instances where a
State commission or other State entity with authority to site
transmission facilities has acted, or has failed to act, triggering the
Commission's jurisdiction. Below, the Commission proposes to revise
Sec. 50.6 of its regulations to reflect the IIJA's amendments to
section 216(b)(1)(C) and announces a policy change with respect to the
commencement of the Commission's pre-filing process for cases where the
Commission's jurisdiction rests on section 216(b)(1)(C).
1. IIJA Amendments to FPA Section 216(b)(1)(C)
18. As discussed above, the IIJA amended FPA section 216(b)(1)(C)
by revising the statutory text to expressly state that the Commission
may issue a permit for the construction or modification of electric
transmission facilities in National Corridors if a State has denied an
applicant's request to site transmission facilities.\26\ Therefore, the
Commission proposes to revise Sec. 50.6 of its regulations, which
describes the information that is required in each application filed
pursuant to our part 50 regulations. As relevant here, Sec. 50.6(e)
requires the applicant to demonstrate that its proposed project would
satisfy the requirements of section 216(b)(1) through (6). To reflect
the IIJA's amendments to section 216(b)(1)(C), the Commission proposes
corresponding revisions to Sec. 50.6(e)(3) to provide that the
applicant is required to submit evidence demonstrating that a State
has: (i) not made a determination on an application; (ii) conditioned
its approval in such a manner that the proposed facilities would not
significantly reduce transmission capacity constraints or congestion in
interstate commerce or is not economically feasible; or (iii) denied an
application.
---------------------------------------------------------------------------
\26\ See supra P 14.
---------------------------------------------------------------------------
2. Commencement of Pre-Filing
19. The Commission has recognized that Congress, in enacting
section 216 of the FPA, adopted a statutory scheme that allows
simultaneous State and Commission siting processes.\27\ As explained in
Order No. 689, the statute
[[Page 2773]]
provides for this potential overlap by allowing the Commission to issue
a permit one year after the State siting process has begun and
requiring an expeditious pre-application mechanism for all permit
decisions under Federal law.\28\ Thus, the Commission has recognized
that our pre-filing process can occur at the same time as simultaneous
State proceedings.\29\
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\27\ Order No. 689 Final Rule, 117 FERC ] 61,202 at P 19.
\28\ Id.
\29\ Id.
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20. Notwithstanding that the statute allows simultaneous State and
Federal proceedings, the Commission in the preamble to Order No. 689
announced a policy that, in cases where its jurisdiction rests on
section 216(b)(1)(C),\30\ the pre-filing process would not commence
until one year after the relevant State applications have been
filed.\31\ This approach, the Commission explained, would provide the
States one full year to process an application without any intervening
Federal proceedings, including both the pre-filing and application
processes, after which time an applicant might seek to commence the
Commission's pre-filing process.\32\ However, the Commission noted that
it would reconsider this issue if it later determined that requiring
applicants to wait one year before commencing the Commission's pre-
filing process was delaying projects or otherwise not in the public
interest.\33\
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\30\ In Order No. 689, the Commission explained that in all
other instances, the pre-filing process may be commenced at any
time. Id. P 21 n.14.
\31\ Id. P 21.
\32\ Id.
\33\ Id.
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21. We are now reconsidering that policy. To ensure that permit
applicants receive as timely a decision as possible from the
Commission, we propose to eliminate the one-year delay before the
Commission's pre-filing process may commence. The purpose of the pre-
filing process is to facilitate maximum participation from all
stakeholders to provide them with an opportunity to present their views
and recommendations with respect to the environmental impacts of the
facilities early in the planning stages of the proposed facilities. In
addition to gathering stakeholder input, during the pre-filing process
Commission staff will work with the applicant to ensure the applicant
has compiled the necessary information for a complete application under
Sec. Sec. 50.6 and 50.7,\34\ and begin our coordination with other
agencies as required under section 216(h).\35\ Therefore, to encourage
the development of needed transmission infrastructure and to minimize
the risk of delays, we propose to allow simultaneous processing of
State applications and Commission pre-filing proceedings.
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\34\ Id.
\35\ 16 U.S.C. 824p(h); DOE Delegation Order No. 00-004.00A.
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22. The Commission continues to recognize the primacy of the
States' role in siting transmission infrastructure but, as discussed,
believes that allowing for simultaneous processing could facilitate a
more efficient process. In addition, we note that, the applicant could
potentially collect information that is relevant to both State and
Federal proceedings only once, avoiding the need to re-do or update
analysis needed to meet Federal permit requirements. While states and
other interested stakeholders are free to submit information in the
pre-filing process, they are under no obligation to participate and
will not waive any rights or otherwise be prejudiced if they choose not
to do so. No rights are adjudicated in the pre-filing process, nor are
findings of fact made. The pre-filing process is intended to facilitate
the development of a complete application that can be acted upon
expeditiously.
23. Though the statute does not limit when the Commission's pre-
filing process may begin, the Commission intends to entertain requests
to commence pre-filing, and may grant such requests, at any time after
the relevant State applications have been filed. However, out of
respect for State siting processes, the Commission proposes to provide
an additional opportunity for State input before we determine that the
pre-filing process is complete and that an application may be filed.
Specifically, one year after the commencement of the Commission's pre-
filing process, if a State has not made a determination on an
application, we propose to provide a 90-day window for the State to
provide comments on any aspect of the pre-filing process, including any
information submitted by the applicant. We also seek comment on the
advantages or disadvantages of the Commission entertaining requests to
commence the pre-filing process before a State application has been
filed.
B. Eminent Domain Authority and Applicant Efforts To Engage With
Landowners and Other Stakeholders
24. As described above, the IIJA amended FPA section 216(e)(1) to
require the Commission to determine, as a precondition to receiving
eminent domain authority, that the permit holder has made good faith
efforts to engage with landowners and stakeholders early in the
permitting process.\36\ Therefore, the Commission proposes to
supplement the existing landowner and stakeholder participation
provisions in part 50 of its regulations.
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\36\ 16 U.S.C. 824p(e)(1) (as amended by IIJA section 1221).
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25. Section 50.4 of the regulations requires the applicant to
develop and file a Project Participation Plan early in the pre-filing
process and to distribute, by mail and newspaper publication, project
participation notices early in both the pre-filing and application
review processes. Specifically, under Sec. 50.4(a), the Project
Participation Plan must: (1) identify specific tools and actions to
facilitate stakeholder communications and public information; (2) list
locations throughout the project area where the applicant will provide
copies of all project filings; and (3) explain how the applicant
intends to respond to requests for information from the public and
other entities. Under Sec. 50.4(c), the project participation notices
must provide a range of information on the proposed project and
permitting process, including a general description of the property an
applicant would need from an affected landowner and a brief summary of
what rights an affected landowner has at the Commission and in
proceedings under the eminent domain rules of the relevant State.
26. To address the IIJA's amendment to section 216(e)(1), we
propose to supplement the regulatory requirements in Sec. 50.4 by
adding a new Sec. 50.12. Under proposed Sec. 50.12, an applicant may
demonstrate that it has met the statutory good faith efforts standard
by complying with an Applicant Code of Conduct in its communications
with affected landowners. The Applicant Code of Conduct in proposed
Sec. 50.12(a) includes particular recordkeeping and information-
sharing requirements for engagement with affected landowners, as well
as more general prohibitions against certain misconduct in such
engagement. For example, an applicant that chooses to comply with the
Applicant Code of Conduct set forth in proposed Sec. 50.12(a) must:
retain an affected landowner contact log; provide affected landowners
with certain information about the project and the Commission; ensure
communications with affected landowners are factually correct, devoid
of misrepresentation, and respectful; obtain affected landowner
permission to enter property and leave when asked; and, if applicable,
provide an affected landowner with a copy of any appraisal
[[Page 2774]]
prepared by, or on behalf of, the applicant for that landowner's
property.
27. Under proposed Sec. 50.12(b)(1), an applicant that chooses to
show good faith by complying with the Applicant Code of Conduct must
file, as part of the pre-filing request required under Sec. 50.5(c),
an affirmative statement indicating its intent to comply with the
Applicant Code of Conduct. Under proposed Sec. 50.12(b)(2), such an
applicant must, as part of the monthly status reports required under
Sec. 50.5(e), demonstrate compliance by: (i) affirming that the
applicant and its representatives have complied with the Applicant Code
of Conduct; or (ii) explaining any instances of non-compliance during
the relevant month and any remedial actions taken or planned. Under
proposed Sec. 50.12(b)(3), an applicant must also identify any known
instances of non-compliance that were not disclosed in prior monthly
status reports and explain any remedial actions taken to remedy such
instances of non-compliance.
28. We emphasize that voluntary compliance with the Applicant Code
of Conduct is one way, but not the only way, that an applicant may
demonstrate that it has met the ``good faith efforts'' standard in
section 216(e)(1). However, we believe that the Applicant Code of
Conduct reflects principles that are broadly relevant to determining
whether an applicant has made good faith efforts to engage with
landowners and other stakeholders early in the applicable permitting
process. We propose to require under Sec. 50.12 that an applicant that
chooses not to rely on compliance with the Applicant Code of Conduct
must specify its alternative method of demonstrating that it meets the
good faith efforts standard, including any specific commitments to
record-keeping and information-sharing. The applicant must explain how
its alternative method is equal to or superior to compliance with the
Applicant Code of Conduct as a means to ensure the good faith efforts
standard is met. The applicant should specifically explain, for each
deviation from the Applicant Code of Conduct in its alternative method,
its reasoning for not following that provision of the Applicant Code of
Conduct and why the alternative method is an equal or better means to
ensure the good faith standard is met notwithstanding that deviation.
29. An applicant bears the burden of demonstrating it has met the
good faith efforts standard in a permit application proceeding. For an
applicant that elects to rely on compliance with the Applicant Code of
Conduct, the Commission will assess ``good faith efforts'' by
evaluating whether evidence in the record shows the applicant
substantially complied with the provisions of the Applicant Code of
Conduct in its engagement with landowners and other stakeholders. For
an applicant that elects to rely on an alternative method to show good
faith efforts, the Commission will first assess whether the applicant's
alternative method is equal to or superior to the Applicant Code of
Conduct as a means to ensure the good faith efforts standard is met. If
so, the Commission will then assess ``good faith efforts'' by
evaluating whether evidence in the record shows the applicant
substantially complied with the commitments of its alternative method.
C. Environmental Justice Public Engagement Plan
30. As described above, applicants are currently required by Sec.
50.4(a) to develop and file a Project Participation Plan early in the
pre-filing process. This requirement is intended to facilitate
stakeholder communication and the dissemination of public information
about the proposed project. Consistent with that goal, we believe that
applicants should, early in the pre-filing process, meaningfully engage
with potentially affected environmental justice communities. As
discussed in this notice of proposed rulemaking (NOPR), the term
``environmental justice community'' includes disadvantaged communities
that have been historically marginalized and overburdened by
pollution.\37\ The term also includes, but may not be limited to,
minority populations, low-income populations, or indigenous
peoples.\38\ Applicants will identify potential environmental justice
communities using the identification methods consistent with current
Commission practice.\39\ This engagement would be consistent with: (1)
Executive Order 12898, which directs Federal agencies to identify and
address ``disproportionately high and adverse human health or
environmental effects'' of their actions on minority and low-income
populations (i.e., environmental justice communities); \40\ (2)
Executive Order 14008, which directs agencies to develop ``programs,
policies, and activities to address the disproportionately high and
adverse human health, environmental, climate-related and other
cumulative impacts on disadvantaged communities, as well as the
accompanying economic challenges of such impacts;'' \41\ (3) Executive
Order 13985, which requires Federal agencies to conduct Equity
Assessments to identify and remove barriers to underserved communities
and ``to increase coordination, communication, and engagement with
community-based organizations and civil rights organizations;'' \42\
and (4) the Environmental Protection Agency's (EPA) Promising Practices
report.\43\ This engagement would also be consistent with the
Commission's Equity Action Plan adhering to Executive Order 13985,
which promotes equitable processes and outcomes for underserved
communities,
[[Page 2775]]
including environmental justice communities, at the Commission.\44\
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\37\ E.O. 14008, 86 FR 7619, Sec. 219 (Jan. 27, 2021).
\38\ See EPA, EJ 2020 Glossary (Aug. 18, 2022), https://www.epa.gov/environmentaljustice/ej-2020-glossary.
\39\ To identify potential environmental justice communities,
Commission staff uses current U.S. Census American Community Survey
data for the race, ethnicity, and poverty data at the State, county,
and block group level. As recommended in Promising Practices, the
Commission currently uses the fifty percent and the meaningfully
greater analysis methods to identify minority populations.
Specifically, a minority population is present where either: (1) the
aggregate minority population of the block groups in the affected
area exceeds 50 percent; or (2) the aggregate minority population in
the block group affected is 10 percent higher than the aggregate
minority population percentage in the county. Environmental
Protection Agency (EPA), Promising Practices for EJ Methodologies in
NEPA Reviews (Mar. 2016) (Promising Practices), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf. The Commission intends
to review and incorporate any updated guidance from CEQ and EPA in
our future analyses, as appropriate. Using Promising Practices' low-
income threshold criteria method, Commission staff currently
identifies low-income populations as block groups where the percent
of a low-income population in the identified block group is equal to
or greater than that of the county. We recognize that CEQ and EPA
are in the process of updating their guidance and recommendations
regarding environmental justice. We expect applicants to utilize the
latest guidance and data from CEQ, EPA, the Census Bureau, and other
authoritative sources. The Commission intends to update our methods
for identifying potential environmental justice communities
following review of any updated environmental justice guidance and
recommendations from CEQ and EPA, as appropriate.
\40\ E.O. 12898, 59 FR 7629 (Feb. 16, 1994). Minority
populations are those groups that include: American Indian or
Alaskan Native; Asian or Pacific Islander; Black, not of Hispanic
origin; or Hispanic. CEQ, Environmental Justice: Guidance Under the
National Environmental Policy Act at 25 (Dec. 1997) (CEQ's
Environmental Justice Guidance), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-EJGuidance.pdf.
\41\ E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
\42\ E.O. 13985, 86 FR 7009, 7010-11 (Jan. 25, 2021).
\43\ EPA, Promising Practices for EJ Methodologies in NEPA
Reviews (Mar. 2016), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf (Promising
Practices). The report includes guiding principles aimed at, among
other things, early and meaningful engagement with minority
populations, low-income populations, and other interested
individuals, communities, and organizations in the NEPA process.
\44\ FERC, Equity Action Plan (2022), https://www.ferc.gov/equity.
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31. Therefore, the Commission proposes to require applicants to
develop and file an Environmental Justice Public Engagement Plan as
part of their Project Participation Plan under Sec. 50.4(a)(4). The
Environmental Justice Public Engagement Plan must describe the
applicant's completed and planned outreach activities that are targeted
to identified environmental justice communities. The plan must also
summarize comments received from potentially impacted environmental
justice communities during any previous outreach activities, if
applicable, and describe planned outreach activities during the
permitting process, including efforts to identify, engage, and
accommodate non-English speaking groups or linguistically isolated
communities. The plan should also describe the manner in which the
applicant will reach out to environmental justice communities about
potential mitigation.\45\
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\45\ We note that the Environmental Justice Resource Report,
discussed further below, would require the applicant to describe any
proposed mitigation measures intended to avoid or minimize impacts
on environmental justice communities, including any community input
received on the proposed mitigation measures and how that input
informed such measures. See infra P 65.
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D. Other Proposed Revisions to 18 CFR Part 50
1. Section 50.1--Definitions
32. Section 50.1 sets forth the definitions for part 50 of the
Commission's regulations. The Commission proposes to add a definition
for the term ``Indian Tribe'' for consistency with its regulations
governing other types of energy infrastructure projects.\46\
Specifically, the Commission proposes to define the term ``Indian
Tribe'' as a Tribe that is recognized by treaty, by Federal statute, or
by the U.S. Department of the Interior in its periodic publication of
Tribal governments.\47\ We also propose to add a definition for the
term ``environmental justice community'' to assist applicant compliance
with the requirement in proposed Sec. 50.4(a)(4) that an applicant
develop and file an Environmental Justice Public Engagement Plan.\48\
Specifically, the Commission proposes to define the term
``environmental justice community'' as any disadvantaged community that
has been historically marginalized and overburdened by pollution,
including, but not limited to, minority populations, low-income
populations, or indigenous peoples. We seek comment on the proposed
definition of ``environmental justice community'' and whether the
Commission should consider adopting an alternative definition, and, if
so, why? The Commission also proposes to revise the definitions of: (1)
``national interest electric transmission corridor'' to include any
geographic area that is expected to experience energy transmission
capacity constraints or congestion, for consistency with the IIJA's
amendments to section 216(a); (2) ``permitting entity,'' for clarity
and consistency with the statute; and (3) ``stakeholder,'' for clarity
and to ensure that environmental justice community members and other
interested persons or organizations are covered by the definition.
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\46\ See, e.g., 18 CFR 4.30(b)(10) (2021) (defining ``Indian
Tribe'' in reference to an application for a license or exemption
for a hydropower project) and 18 CFR 157.1 (defining ``Indian
Tribe'' in reference to an application for a certificate of public
convenience and necessity for a natural gas pipeline project).
\47\ 25 CFR 83.6(a) (2021).
\48\ See supra PP 30-31.
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33. Section 50.1 defines ``affected landowners'' as owners of
property interests, as noted in the most recent county/city tax records
as receiving the tax notice, whose property: (1) is directly affected
(i.e., crossed or used) by the proposed activity including all facility
sites, rights-of-way, access roads, staging areas, and temporary
workspace; or (2) abuts either side of an existing right-of-way or
facility site owned in fee by any utility company, or abuts the edge of
a proposed facility site or right-of-way which runs along a property
line in the area in which the facilities would be constructed, or
contains a residence within 50 feet of a proposed construction work
area. The Commission is not proposing to revise the definition of
``affected landowners.'' Nevertheless, we seek comment on whether the
Commission should revise the definition of ``affected landowners'' to
include landowners located within a certain geographic distance from
the proposed project facilities to address effects on visual (or other)
resources, and, if so, what geographic distance should be used and why?
2. Section 50.3--Filing and Formatting Requirements
34. Section 50.3 establishes the filing and formatting requirements
for submissions in the Commission's pre-filing and application
processes. The Commission proposes to revise Sec. 50.3(b) to eliminate
the requirement that applications, amendments, and all exhibits and
other submissions must be submitted in an original and seven conformed
copies. Instead, to reduce waste, applicants would only be required to
make these submissions in electronic format.
3. Section 50.4--Stakeholder Participation
i. Project Participation Plan
35. As described above, Sec. 50.4(a) requires each applicant to
develop and file a Project Participation Plan for use during the pre-
filing and application processes to ensure that stakeholders have
access to timely and accurate information on the proposed project and
permitting process. The Project Participation Plan must, among other
things, identify specific tools and actions to facilitate stakeholder
communications and public information, including a regularly updated
website. The Commission proposes to revise Sec. 50.4(a)(1) to specify
that an applicant's website must include an interactive mapping
component to provide users with the ability to locate the proposed
facilities in relation to specific properties and other features.
Additionally, as discussed above, the Commission proposes to require an
applicant to develop and file an Environmental Justice Public
Engagement Plan early in the pre-filing process, which would describe
an applicant's outreach to environmental justice communities.\49\
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\49\ Supra PP 30-31.
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ii. Project Notification Requirements
36. As described above, Sec. 50.4(c) sets forth the project
notification requirements for applicants. Section 50.4(c)(1) requires
the applicant to distribute, by mail and newspaper publication, project
participation notices within a specified time following notice that the
pre-filing process has commenced and notice that an application has
been filed. Section 50.4(c)(1) directs the applicant to notify, among
others, all affected landowners and landowners with a residence within
a quarter mile from the edge of the construction right-of-way for the
proposed project. The Commission proposes to revise Sec. 50.4(c)(1)
for clarity and to ensure that applicants provide notice of the
proposed project to all interested individuals and organizations. We
seek comment on whether a quarter-mile limit is sufficient and, if not,
what geographic distance should be used and why?
37. Section 50.4(c)(2)(i) describes the required contents of the
pre-filing notice. For clarity and to avoid confusion, the Commission
proposes organizational changes in the regulations to distinguish the
[[Page 2776]]
requirements that pertain to any pre-filing notice that is sent by mail
or published in a newspaper (proposed Sec. 50.4(c)(2)(i)) from the
requirements that pertain only to any pre-filing notice that is sent by
mail to an affected landowner (proposed Sec. 50.4(c)(2)(ii)).
38. In addition to this reorganization, we propose to add a
requirement that any pre-filing notice mailed to an affected landowner
also include a copy of a Commission document titled ``Landowner Bill of
Rights in Federal Energy Regulatory Commission Electric Transmission
Proceedings'' (Landowner Bill of Rights). We seek comment on a draft
version of the Landowner Bill of Rights provided in the Appendix to
this NOPR. The Commission believes that requiring the applicant to
provide this information at the outset of the permitting process would
help ensure that affected landowners are informed of their rights in
dealings with the applicant, in Commission proceedings, and in eminent
domain proceedings. We also propose to require that any pre-filing
notice sent by mail or published in the newspaper include information
clarifying that the Commission's pre-filing and application processes
are separate from any simultaneous State siting proceeding and
explaining how to participate in any such State siting proceeding.
39. The Commission expects applicants to make a good faith effort
to ensure that individuals and organizations entitled to receive
project participation notices can comprehend the contents of such
notices. Accordingly, applicants should consider the need for project
participation notices in languages other than English as part of the
Environmental Justice Public Engagement Plan described above.
Additionally, we seek comment on what methods of notice beyond mail and
newspaper publication might be utilized in order to effectively reach
the largest number of stakeholders as possible.
4. Section 50.5--Pre-Filing Procedures
40. Section 50.5 describes the required pre-filing procedures for
applicants seeking a permit under FPA section 216. Section 50.5(c)
describes the information that an applicant must provide in the pre-
filing request. The Commission proposes to require that any pre-filing
request include a detailed description of how the proposed project will
reduce capacity constraints and congestion on the transmission system
(proposed Sec. 50.5(c)(8)) and, as described above, a statement
indicating whether an applicant intends to comply with the Applicant
Code of Conduct (proposed Sec. 50.5(c)(9)).
41. Section 50.5(e) describes the information that an applicant
must provide once the Director of the Office of Energy Projects has
issued a notice commencing the pre-filing process, and the respective
deadlines for filing such information. The Commission proposes
clarifications to Sec. 50.5(e)(3) and (4) to ensure consistency with
the project notification requirements in Sec. 50.4(c). We also propose
to require an applicant to file congestion-related information earlier
in the Commission's permitting process to provide sufficient time for
Commission staff to evaluate the adequacy of information needed to
conduct the required analyses under section 216(b)(4).\50\
Specifically, within 30 days of the notice commencing the pre-filing
process, we propose to require an applicant to file a draft version of
Exhibit H, System analysis data, required by Sec. 50.7 (proposed Sec.
50.5(e)(8)), showing how the proposed project will reduce capacity
constraints and congestion on the transmission system. In addition to a
draft version of Exhibit H, we also propose to require an applicant to
file additional supporting information such as system impact study
reports, relevant regional transmission plans, and, if applicable,
expert witness testimony and other relevant information submitted with
the State application(s) (proposed Sec. 50.5(e)(7)).
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\50\ FPA section 216(b)(4) requires the Commission to find that
the proposed construction or modification of transmission facilities
will significantly reduce transmission congestion in interstate
commerce and protects or benefits consumers.
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5. Section 50.6--General Content of Applications
42. Section 50.6 describes the information that must be provided as
part of an application for a permit under FPA section 216. In Sec.
50.6(c), the Commission proposes to update certain terminology for
clarity (e.g., deleting origin and termination points and replacing
those terms with point of receipt and point of delivery, respectively).
We also propose to revise Sec. 50.6(d) to specify that verification
that the proposed route lies within a DOE-designated National Corridor
must include the date of designation.
43. Each application filed under part 50 of the Commission's
regulations must provide evidence demonstrating that one of the
jurisdictional bases set forth in section 216(b)(1) applies to the
proposed facilities. To ensure consistency with section 216(b)(1)(A),
as amended by the IIJA, the Commission proposes to add to Sec.
50.6(e)(1) the phrase ``or interregional benefits'' to clarify that an
application may provide evidence that a State does not have the
authority to consider the interstate benefits or interregional benefits
expected to be achieved by the proposed facilities. While the statute,
as amended by the IIJA, does not define the term ``interregional,'' the
Commission for the purposes of this NOPR proposes to apply a meaning
that is consistent with Order No. 1000, which defines an interregional
transmission facility as one that is located in two or more
transmission planning regions.\51\ As discussed above, we also propose
revisions to Sec. 50.6(e)(3) to ensure that the regulatory text tracks
the IIJA's amendments to section 216(b)(1)(C).\52\
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\51\ Transmission Plan. & Cost Allocation by Transmission Owning
& Operating Public Utilities, Order No. 1000, 76 FR 49842 (Aug. 11,
2011), 136 FERC ] 61,051, at P 482 n.374 (2011).
\52\ Supra P 18.
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6. Section 50.7--Application Exhibits
44. Section 50.7 identifies the exhibits that applicants must file
with an application and describes the technical data that must be
provided in each exhibit. Section 50.7(g) requires each applicant to
submit Exhibit G--Engineering data, which must include a detailed
project description. For consistency and clarity, the Commission
proposes revisions to ensure that the project description includes
points of receipt and delivery (Sec. 50.7(g)(1)(i)), line design
features that minimize audible corona noise during rain or fog (Sec.
50.7(g)(1)(vi)), and overhead and underground structures (Sec.
50.7(g)(2)(ii)).
45. The Commission also proposes revisions to Sec. 50.7(h), which
describes the requirements for Exhibit H--System analysis data.
Specifically, we propose to: (1) require the analysis to include
project impacts on transmission capacity constraints (Sec.
50.7(h)(1)); (2) clarify that the analysis must include steady-state,
short-circuit, and dynamic power flow cases, as applicable, and
consider planned and forecasted forced outage rate for generation and
transmission and generation dispatch scenarios (Sec. 50.7(h)(2)); and
(3) require the analysis to identify how the proposed project will
affect congestion on neighboring transmission systems (Sec.
50.7(h)(3)). This information is necessary for Commission staff to
evaluate whether the proposed facilities would significantly reduce
transmission congestion and protect or benefit consumers, as required
by section 216(b)(4).
[[Page 2777]]
7. Section 50.11--General Permit Conditions
46. Section 50.11 lists the general conditions that would apply to
any permit issued under part 50 of the Commission's regulations. The
Commission proposes clarifying edits to Sec. Sec. 50.11(a) and (b).
The proposed revision to Sec. 50.11(b) is intended to foreclose a
situation where an applicant would need to accept a permit in instances
where rehearing has been denied by operation of law and the applicant
has appealed, but the Commission intends to issue a future order before
the record is filed with the court of appeals.
47. In addition, to balance our commitment to expeditiously respond
to parties' concerns in comprehensive orders on rehearing and the
serious concerns posed by the possibility of construction proceeding
prior to the completion of Commission review, we propose to add
language to Sec. 50.11(d) that would, under certain circumstances and
for a limited time, preclude the issuance of authorizations to proceed
with construction of transmission facilities authorized under FPA
section 216 while requests for rehearing of orders issuing permits
remain pending before the Commission. This proposed addition, which
mirrors a regulation that the Commission previously adopted in the
natural gas context,\53\ would ensure that construction of approved
transmission facilities does not begin during 30-day rehearing period
and, if a qualifying rehearing request is filed, until that request is
no longer pending before the Commission, the record of the proceeding
is filed with the court of appeals, or 90 days has elapsed since the
rehearing request was deemed denied by operation of law.
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\53\ See Limiting Authorizations to Proceed with Construction
Activities Pending Rehearing, Order No. 871-B, 86 FR 26150 (May 13,
2021), 175 FERC ] 61,098, order on reh'g, Order No. 871-C, 86 FR
43077 (Aug. 6, 2021), 176 FERC ] 61,062 (2021).
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8. Proposed Clarifying Revisions to 18 CFR Part 50
48. In addition to the proposed revisions discussed above, we
propose minor, non-substantive edits throughout part 50 of our
regulations. These proposed revisions are intended to clarify or
streamline existing requirements, to correct grammatical errors and
cross-references, and to maintain consistency.
E. Regulations Implementing NEPA
49. In Order No. 689, in addition to establishing the requirements
for applications filed under FPA section 216, the Commission also
adopted several amendments to its NEPA regulations. These amendments
included revisions or additions to: Sec. 380.3(c) (adding electric
transmission projects to the list of project types for which applicants
must provide environmental information), Sec. 380.5(b)(14) (adding
electric transmission facilities to the list of project types for which
the Commission will prepare an Environmental Assessment), Sec.
380.6(a)(5) (adding major electric transmission facilities using right-
of-way in which there is no existing facility to the list of project
types for which the Commission will prepare an Environmental Impact
Statement), Sec. 380.8 (designating the Office of Energy Projects as
responsible for the preparation of environmental documents for electric
transmission facilities), Sec. 380.10(a)(2)(iii) (clarifying that pre-
filing proceedings for electric transmission facilities are not open to
motions to intervene), and Sec. 380.15 (stating that electric
transmission project sponsors must comply with the National Electric
Safety Code and transmission rights-of-way are subject to the same
construction and maintenance requirements as natural gas pipelines).
50. The Commission also added a new section to its NEPA
regulations, 18 CFR 380.16, which describes the specific environmental
information that must be included in applications for permits to site
transmission facilities under section 216. Section 380.16 currently
requires each applicant to submit an environmental report that includes
eleven resource reports, as follows.
51. Resource Report 1 requires the applicant to describe the
project and proposed construction methods and requirements; submit
topographic maps, aerial images and/or photographs showing the proposed
project facilities; identify all authorizations and mitigation measures
required to construct the proposed project; and provide the names and
addresses of all affected landowners.\54\
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\54\ 18 CFR 380.16(c) (2021).
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52. Resource Report 2 requires the applicant to provide information
necessary to determine the impact of the proposed project on water use
and water quality and proposed mitigation measures.\55\
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\55\ Id. 380.16(d).
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53. Resource Report 3 requires the applicant to describe aquatic
life, wildlife, and vegetation in the vicinity of the proposed project;
the expected impacts on these resources; and proposed mitigation
measures.\56\
---------------------------------------------------------------------------
\56\ Id. 380.16(e).
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54. Resource Report 4 requires the applicant to provide information
necessary for the Commission to consider the effect of a proposed
project on cultural resources in furtherance of the Commission's
obligations under section 106 of the National Historic Preservation Act
(NHPA).\57\
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\57\ Id. 380.16(f).
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55. Resource Report 5 requires the applicant to describe the
socioeconomic impact area and to identify and quantify the impacts of
constructing and operating the proposed project on factors affecting
towns and counties in the project vicinity.\58\
---------------------------------------------------------------------------
\58\ Id. 380.16(g).
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56. Resource Report 6 requires the applicant to describe geological
resources and hazards in the project area that might be directly or
indirectly affected by the proposed facility or may place the proposed
facility at risk, the potential effects of those hazards on the
facility, and the methods to reduce the effects or risks.\59\
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\59\ Id. 380.16(h).
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57. Resource Report 7 requires the applicant to describe the soils
that will be affected by the proposed project and measures proposed to
minimize or avoid impacts.\60\
---------------------------------------------------------------------------
\60\ Id. 380.16(i).
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58. Resource Report 8 requires the applicant to provide information
concerning the uses of land in the project area and proposed mitigation
measures to protect and enhance existing land use.\61\
---------------------------------------------------------------------------
\61\ Id. 380.16(j).
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59. Resource Report 9 requires the applicant to describe
alternatives to the project, including the ``no action'' alternative,
and to compare the environmental impacts of such alternatives.\62\
---------------------------------------------------------------------------
\62\ Id. 380.16(k).
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60. Resource Report 10 requires the applicant to address
reliability and safety considerations, including the potential hazard
to the public from the proposed facilities resulting from accidents or
natural catastrophes; how these events would affect reliability; and
the procedures and design features employed to reduce potential
hazards.\63\
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\63\ Id. 380.16(l).
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61. Finally, Resource Report 11 requires the applicant to provide
design and engineering data, including general design and engineering
drawings of all major project structures, and a supporting design
report.\64\
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\64\ Id. 380.16(m).
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62. As explained above, the Fourth Circuit's 2009 Piedmont decision
vacated Order No. 689's amendments to the Commission's NEPA regulations
[[Page 2778]]
because the court found that the Commission had failed to consult with
CEQ prior to issuing the revised regulations.\65\ Notwithstanding the
Fourth Circuit's vacatur, the NEPA amendments set forth in Order No.
689 are still reflected in 18 CFR part 380. We seek comment on the
whole of the Commission's NEPA regulations pertaining to electric
transmission facilities, as well as the specific proposed changes to
those regulations described further below. The Commission will consult
with CEQ on the proposed changes to its NEPA regulations described
below as well as those originally implemented by Order No. 689.
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\65\ See supra P 11.
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1. Tribal Resources Resource Report
63. The Commission recognizes the unique relationship between the
United States and Indian Tribes, acknowledges its trust responsibility
to Indian Tribes, and endeavors to work with tribes on a government-to-
government basis, seeking to address the effects of proposed projects
on Tribal rights and resources through consultation.\66\ To evaluate
the effects of proposed transmission facilities on Tribal rights and
resources, the Commission's existing regulations require an applicant
to submit information describing the project's effects on Tribes,
Tribal lands, and Tribal resources as part of the Land use, recreation,
and aesthetics resource report.\67\ Specifically, the applicant must
identify Tribes that may attach religious and cultural significance to
historic properties within the right-of-way or in the project vicinity;
\68\ provide available information on traditional cultural and
religious properties; \69\ and ensure that specific site or location
information, disclosure of which will create a risk of harm, theft, or
destruction or violate Federal law, is not disclosed.\70\
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\66\ 18 CFR 2.1c (2021).
\67\ See id. Sec. 380.16(j)(5).
\68\ Id. Sec. 380.16(j)(5)(i).
\69\ Id.
\70\ Id. Sec. 380.16(j)(5)(ii).
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64. The Commission proposes to relocate the existing Tribal
resource-related information requirements to a new, standalone resource
report, Resource Report 6--Tribal resources, in proposed Sec.
380.16(h). In addition to consolidating the existing requirements in a
new resource report,\71\ we also propose to require an applicant to
identify potentially-affected Tribes (proposed Sec. 380.16(h)(1));
describe the impacts of project construction, operation, and
maintenance on Tribes and Tribal interests, including impacts related
to enumerated resource areas (proposed Sec. 380.16(h)(2)); and
describe project impacts that may affect Tribal interests that are not
necessarily associated with particular resource areas (e.g., treaties,
Tribal practices, or agreements) (proposed Sec. 380.16(h)(3)). The
Commission believes this information is necessary to fully evaluate the
effects of a proposed project in furtherance of the Commission's trust
responsibility and our statutory obligations under the FPA and NEPA.
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\71\ See proposed Sec. Sec. 380.16(h)(4)-(5).
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2. Environmental Justice Resource Report
65. In conducting NEPA reviews of proposed transmission facilities,
the Commission intends to follow the instruction of Executive Orders
12898,\72\ 14008,\73\ and 13985,\74\ as described above, and relevant
CEQ guidance \75\ and EPA's Promising Practices report \76\ on
assessing impacts on environmental justice communities under NEPA.\77\
Section 380.16 does not currently require an applicant to submit
information on the potential project impacts on environmental justice
communities. Therefore, the Commission proposes to add a new resource
report, Resource Report 7--Environmental justice, in proposed Sec.
380.16(i). Specifically, the resource report would require the
applicant to identify environmental justice communities within the
project's area of potential impacts (proposed Sec. 380.16(i)(1)); \78\
describe the impacts of project construction, operation, and
maintenance on environmental justice communities, including whether any
impacts would be disproportionately high and adverse (proposed Sec.
380.16(i)(2)); discuss cumulative impacts on environmental justice
communities, including whether any cumulative impacts would be
disproportionately high and adverse (proposed Sec. 380.16(i)(3)); and
describe any proposed mitigation measures intended to avoid or minimize
impacts on environmental justice communities, including any community
input received on the proposed measures and how the input informed the
proposed measures (proposed Sec. 380.16(i)(4)).
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\72\ E.O. 12898, 59 FR 7629 (Feb. 16, 1994). While the
Commission is not one of the specified agencies in Executive Order
12898, the Commission nonetheless intends to address environmental
justice in its analysis, in accordance with our governing
regulations and statutory duties. 16 U.S.C. 824p(b)(3); 18 CFR
380.16(g) (2021) (requiring applicants to submit information about
the socioeconomic impact area of a project for the Commission's
consideration during NEPA review); see also FERC, Guidance Manual
for Environmental Report Preparation at 4-76 to 4-82 (Feb. 2017),
https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf (providing guidance for preparing Resource Report 5--
Socioeconomics, including addressing project effects on
environmental justice communities, for applications filed under the
Natural Gas Act).
\73\ E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
\74\ E.O. 13985, 86 FR 7009 (Jan. 25, 2021).
\75\ CEQ's Environmental Justice Guidance, https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-EJGuidance.pdf. CEQ offers recommendations on how Federal
agencies can provide opportunities for effective community
participation in the NEPA process, including identifying potential
effects and mitigation measures in consultation with affected
communities and improving the accessibility of public meetings,
crucial documents, and notices.
\76\ See generally Promising Practices, https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf.
\77\ NEPA requires the Commission before taking an action, to
analyze, disclose, and take a ``hard look'' at the potential
environmental impacts of that action. See 42 U.S.C. 4332(2)(C);
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87,
97 (1983) (discussing the twin aims of NEPA).
\78\ As discussed, to identify environmental justice
communities, Commission staff currently reviews U.S. Census Bureau
population data for the applicable location and applies population
thresholds provided by EPA and CEQ in their environmental justice
recommendations and guidance. See supra at note 40.
---------------------------------------------------------------------------
66. The Commission also proposes a corresponding addition to Sec.
380.2, which sets forth the definitions for the Commission's NEPA
regulations. Specifically, the Commission proposes to define the term
``environmental justice community'' in proposed Sec. 380.2(f). The
proposed definition of the term ``environmental justice community'' is
identical to the definition that the Commission proposes to add to
Sec. 50.1.\79\
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\79\ See supra P 32.
---------------------------------------------------------------------------
67. Finally, while we recognize that EPA and CEQ are in the process
of updating their guidance regarding environmental justice, we expect
applicants to utilize the latest guidance and data from CEQ, EPA, the
Census Bureau, and other authoritative sources. The Commission intends
to review and incorporate any updated guidance from CEQ and EPA in our
future analyses, as appropriate.
3. Air Quality and Environmental Noise Resource Report
68. Section 380.16(l)(7) requires applicants, as part of the
existing Reliability and safety resource report, to indicate the noise
level generated by the proposed transmission line and compare the noise
level to any known noise ordinances for the zoning districts through
which the line will pass. Section 380.16 does not currently require
information on proposed project
[[Page 2779]]
emissions and the corresponding effects on air quality and the
environment.
69. To fully evaluate the effects of a proposed project in
furtherance of our obligations under NEPA,\80\ the Commission believes
additional information on emissions, air quality, and environmental
noise is necessary. Therefore, the Commission proposes to add a new
resource report, Resource Report 11--Air quality and environmental
noise, in proposed Sec. 380.16(m). Proposed Resource Report 11 would
require the applicant to estimate emissions from the proposed project
and the corresponding impacts on air quality and the environment,
estimate the impact of the proposed project on the noise environment,
and describe proposed measures to mitigate the impacts. Consistent with
the Commission's requirements for natural gas compressor stations,\81\
we also propose to establish a noise limit for proposed substations and
appurtenant facilities at pre-existing noise-sensitive areas, such as
schools, hospitals, or residences.
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\80\ As noted above, NEPA requires the Commission to take a
``hard look'' at the environmental impacts of a proposed action. See
42 U.S.C. 4332(2)(C); Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. at 97.
\81\ 18 CFR 380.12(k)(4)(v)(A) (2021).
---------------------------------------------------------------------------
70. Under proposed Sec. 380.16(m)(1), the Air quality and
environmental noise resource report must describe the existing air
quality in the project area, indicate if any project facilities are
located within a designated nonattainment or maintenance area under the
Clean Air Act,\82\ and provide the distance from the project facilities
to any Class I area in the project vicinity. Under proposed Sec.
380.16(m)(3), the resource report must estimate emissions from the
proposed project and the corresponding impacts on air quality and the
environment. Specifically, the applicant must provide the reasonably
foreseeable emissions from construction, operation, and maintenance of
the project facilities; provide a comparison of emissions with
applicable General Conformity thresholds (40 CFR part 93) for each
designated nonattainment or maintenance area; identify the
corresponding impacts on communities and the environment in the project
area; and describe any proposed mitigation measures to control
emissions.
---------------------------------------------------------------------------
\82\ 42 U.S.C. 7401 et seq.
---------------------------------------------------------------------------
71. Under proposed Sec. 380.16(m)(2), the resource report must,
for proposed substations and appurtenant facilities, quantitatively
describe existing noise levels at nearby noise-sensitive areas. Under
proposed Sec. 380.16(m)(4), the resource report must provide a
quantitative estimate of project operation (including proposed
transmission lines, substations, and other appurtenant facilities) on
noise levels. The operational noise estimates must demonstrate that the
proposed project will comply with applicable State and local noise
regulations and that noise attributable to any proposed substation or
appurtenant facility does not exceed a day-night sound level
(Ldn) of 55 dBA at any pre-existing noise-sensitive
area.\83\ Additionally, the resource report must describe the impact of
proposed construction activities on the noise environment and any
proposed mitigation measures to reduce noise impacts.
---------------------------------------------------------------------------
\83\ The EPA has indicated that a day-night noise level of 55
decibels on the A-weighted scale protects the public from indoor and
outdoor activity interference. The Commission has adopted this
criterion and uses it to evaluate the potential noise impact from
operation of natural gas compressor facilities. Elba Express Co.,
L.L.C., 141 FERC ] 61,027, at P 21 n.12 (2012). We think it is
appropriate to use this same criterion to evaluate the potential
noise impact from operation of substations and appurtenant
facilities.
---------------------------------------------------------------------------
4. Visual Resources
72. Section 380.16(j)(11) requires applicants, as part of the
existing Land use, recreation, and aesthetics resource report, to
describe the visual characteristics of the lands and waters affected by
the project, including how the transmission line facilities will impact
the visual character of the project right-of-way and surrounding
vicinity and related mitigation measures. The Commission's existing
regulations encourage, but do not require, applicants to supplement
this description with visual aids.
73. The Commission believes that more specific information is
needed to evaluate the effects of the proposed project facilities on
visual resources. Above ground high-voltage transmission lines may
cause substantial visual contrast and be a major focus for viewer
attention. To assess visual impacts of infrastructure projects,
including high-voltage transmission lines, Commission staff has, in
some cases, used the Bureau of Land Management's Visual Resource
Management methodology,\84\ and other agencies have used the Federal
Highway Administration's Visual Impact Assessment for Highway
Projects.\85\ The Commission seeks comment on whether either of these
tools, or any other tools, are appropriate for our analysis.
Additionally, we believe that visual aids are necessary to support this
evaluation. Therefore, in proposed Sec. 380.16(l)(10), we propose to
require the applicant to identify the area of potential visual effects
from the proposed project; describe any visually sensitive areas,
visual classifications, and key viewpoints in the project vicinity; and
provide visual aids to support the evaluation of visual impacts from
the proposed project.
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\84\ See, e.g., Final Environmental Impact Statement for the
Swan Lake North Pumped Storage Project (P-13318-003).
\85\ See, e.g., Final Environmental Impact Statement for the
Susquehanna to Roseland 500kv Transmission Line Right-of-Way and
Special Use Permit at 588, https://parkplanning.nps.gov/document.cfm?documentID=49285&parkID=220&projectID=25147.
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5. Additional Proposed Revisions to 18 CFR 380.16
74. Because the Commission proposes to add to Sec. 380.16 three
new resource reports (Tribal resources, Environmental justice and Air
quality and environmental noise), we propose to redesignate all
resource reports after Resource Report 5--Socioeconomics as follows:
Resource Report 6--Tribal resources (proposed Sec. 380.16(h));
Resource Report 7--Environmental justice (proposed Sec. 380.16(i));
Resource Report 8--Geological resources (proposed Sec. 380.16(j));
Resource Report 9--Soils (proposed Sec. 380.16(k)); Resource Report
10--Land use, recreation, and aesthetics (proposed Sec. 380.16(l));
Resource Report 11--Air quality and environmental noise (proposed Sec.
380.16(m)); Resource Report 12--Alternatives (proposed Sec.
380.16(n)); Resource Report 13--Reliability and safety (proposed Sec.
380.16(o)); and Resource Report 14--Design and engineering (proposed
Sec. 380.16(p)).
75. In addition to the proposed addition of three new resource
reports and the proposed changes to the visual resources requirements
described above, the Commission proposes revisions throughout Sec.
380.16. We discuss the main substantive revisions below.
76. In Sec. 380.16(b)(3), we propose to clarify the scope of
cumulative effects that must be identified in each resource report for
consistency with the definition of cumulative effects in CEQ's NEPA
regulations.\86\
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\86\ 40 CFR 1508.1(g)(3) (2021).
---------------------------------------------------------------------------
77. In Sec. 380.16(c)(2), we propose to revise Resource Report 1--
General project description to more clearly identify the types of
facilities that must be depicted on the topographic maps and aerial
images or photo-based alignment sheets. We also propose to add
requirements to describe any proposed horizontal directional drilling
and pile driving that may be necessary (Sec. 380.16(c)(3)), indicate
the days of the week and times of the day during which construction
activities would occur, and
[[Page 2780]]
describe any proposed nighttime construction activities (Sec.
380.16(c)(4)).
78. In Sec. 380.16(d)(6), the Commission proposes to add a
requirement that Resource Report 2--Water use and quality describe the
impact of proposed land clearing and vegetation management practices on
water resources. In Sec. 380.16(e), the Commission proposes to clarify
that Resource Report 3--Fish, wildlife, and vegetation must describe
potential impacts on interior forest (Sec. 380.16(e)(3)), as well as
the impact of proposed land clearing and vegetation management
practices on fish, wildlife, and vegetation (Sec. 380.16(e)(4)).
79. In Sec. 380.16(k)(4), the Commission proposes to add a
requirement that Resource Report 9--Soils describe any proposed
mitigation measures intended to reduce the potential for adverse
impacts to soils or agricultural productivity.
80. In Sec. 380.16(l)(4), the Commission proposes to add a
requirement that Resource Report 10--Land use, recreation, and
aesthetics identify the area of direct effect of the proposed
facilities on interior forest. The Commission also proposes to: (1)
clarify the scope of facilities (e.g., buildings, electronic
installations, airstrips, airports, and heliports) in the project
vicinity that must be identified; (2) clarify the corresponding
requirements to depict such facilities on the maps and photographs in
Resource Report 1 (Sec. 380.16(l)(5)); and (3) require copies of any
consultation with the Federal Aviation Administration (Sec.
380.16(l)(5)(iii)).
81. In Sec. 380.16(o)(3), the Commission proposes to add a
requirement that Resource Report 13--Reliability and safety include a
discussion of any proposed measures intended to ensure that the
facilities proposed by the applicant would be resilient against future
climate change impacts. We also propose to clarify the existing
requirement that the Reliability and safety resource report discuss
contingency plans for maintaining service or reducing downtime by
adding that such contingency plans should ensure that the proposed
facilities would not adversely affect the bulk electric system in
accordance with applicable North American Electric Reliability
Corporation reliability standards (Sec. 380.16(o)(4)). Finally, given
the addition of new Resource Report 11--Air quality and environmental
noise, the Commission proposes to eliminate from the Reliability and
safety resource report the now redundant requirement that the applicant
must indicate the noise level generated by the transmission line.
82. For all of the proposed revisions discussed above, we seek
comment on, as appropriate, whether the Commission has authority to
impose such changes and, if it does, whether it should impose such
changes. We also propose minor, non-substantive edits throughout Sec.
380.16. These proposed revisions are intended to clarify or streamline
existing requirements, to correct grammatical errors and cross-
references, and to maintain consistency.
6. Proposed Revisions to 18 CFR 380.13 and 380.14
83. Finally, the Commission also proposes to amend Sec. Sec.
380.13 (Compliance with the Endangered Species Act) and 380.14
(Compliance with the NHPA) to add cross-references to the appropriate
paragraphs of Sec. 380.16. We believe the prior omission of such
cross-references to be an oversight. Section 380.14 also contains a
proposed revision to correct the legal citation for section 106 of the
NHPA,\87\ following the act's recodification in title 54 of the U.S.
Code.
---------------------------------------------------------------------------
\87\ 54 U.S.C. 306108.
---------------------------------------------------------------------------
III. Information Collection Statement
84. The Paperwork Reduction Act \88\ requires each Federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information directed to ten or more
persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements contemplated by proposed rules.\89\ Upon approval of a
collection of information, OMB will assign an OMB control number and an
expiration date. Respondents subject to the filing requirements of a
rule will not be penalized for failing to respond to the collection of
information unless the collection of information displays a valid OMB
control number.
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\88\ 44 U.S.C. 3501-3521.
\89\ See 5 CFR 1320.11 (2021).
---------------------------------------------------------------------------
85. Public Reporting Burden: In this NOPR, the Commission proposes
to revise its regulations governing applications for permits to site
transmission facilities under section 216 of the FPA. This proposed
rule would modify certain reporting and recordkeeping requirements
included in FERC-729 (OMB Control No. 1902-0239).\90\
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\90\ FERC-729 includes the reporting and recordkeeping
requirements for ``Electric Transmission Facilities.''
---------------------------------------------------------------------------
86. The proposed revisions to the Commission's regulations
associated with the FERC-729 information collection are intended to
ensure consistency with section 216 of the FPA, as amended by the IIJA.
The Commission also proposes revisions to modernize certain regulatory
requirements and to incorporate other updates and clarifications to
provide for the efficient and timely review of permit applications.
Several of the proposed revisions have information collection
implications. For example, the Commission proposes to require an
applicant to:
maintain an affected landowner contact log, provide
certain information to affected landowners, file an affirmative
statement with the Commission indicating the applicant's intent to
comply with the Applicant Code of Conduct, and include compliance
updates as part of the monthly status reports required during the pre-
filing process; \91\
---------------------------------------------------------------------------
\91\ These requirements would only apply to applicants who elect
to comply with the Applicant Code of Conduct set forth in proposed
Sec. 50.12.
---------------------------------------------------------------------------
provide additional congestion and system analysis
information during the pre-filing process and as part of the
application;
develop and file an environmental justice public
engagement plan describing completed and planned targeted outreach
efforts during the pre-filing process and after an application has been
submitted;
develop and file a new resource report describing the
proposed project's impacts on Tribal resources;
develop and file a new resource report describing the
proposed project's impacts on environmental justice communities;
develop and file a new resource report describing the
proposed project's impact on air quality and environmental noise;
provide additional information describing the proposed
project's visual impacts; and
provide additional information as part of the following
existing resource reports: General project description; Water use and
quality; Fish, wildlife, and vegetation; Soils; Land use, recreation,
and aesthetics; and Reliability and safety.
These proposed revisions would represent an increase in information
collection requirements and burden for FERC-729.
87. The Commission recognizes that some of the estimates for the
information collection activities proposed in this NOPR are novel.
Therefore, the Commission seeks comments on the burden and costs
[[Page 2781]]
associated with the requirements contained in this NOPR.
88. The estimated burden and cost for the requirements contained in
this NOPR follow.
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\92\ We consider the filing of an application, including the
mandatory pre-filing information, to be a ``response.''
\93\ The estimates for cost per response are derived using the
following formula: Average Burden Hours per Response * $91 per Hour
= Average Cost per Response. The hourly cost figure is the FY2022
FERC average annual salary plus benefits ($188,992/year or $91/
hour). Commission staff estimates that industry costs for salary
plus benefits are similar to Commission costs.
\94\ Notwithstanding that compliance with the Applicant Code of
Conduct is voluntary, we are providing the estimated burden hours
associated with such compliance.
\95\ After implementation of this proposed rule, we estimate one
application for a permit to site electric transmission facilities
will be filed per year.
\96\ This category covers the proposed updates to the congestion
and system analysis data that an applicant must provide during the
pre-filing process and as part of the application in Exhibit H,
System analysis data.
\97\ This category covers additional proposed updates to part 50
of the Commission's regulations that involve minor increases in
burden (e.g., adding an interactive mapping feature to an
applicant's project website and including additional material in the
project notifications mailed to affected landowners) as well as a
reduction in burden associated with eliminating the requirement that
an applicant provide seven paper copies of an application, exhibits,
and other submittals.
\98\ This category covers a variety of non-substantial proposed
updates to Sec. 380.16 of the Commission's regulations that, if
adopted, would require an applicant to develop and submit additional
information as part of the following resource reports: General
project description; Water use and quality; Fish, wildlife, and
vegetation; Soils; Land use, recreation, and aesthetics; and
Reliability and safety.
Annual Changes Proposed by the NOPR in Docket No. RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Number of responses \92\ Total number of Average burden hours & cost Total annual burden hours &
respondents per respondent responses per response \93\ total annual cost
(1) (2) (1) x (2) = (3) (4)........................ (3) x (4) = 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current FERC 729 Collection
--------------------------------------------------------------------------------------------------------------------------------------------------------
FERC-729................................ 1 1 1 9,600 hrs.; $873,600....... 9,600 hrs.; $873,600.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed Revisions in RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant Code of Conduct \94\.......... \95\ 1 1 1 136 hrs; $12,376........... 136 hrs.; $12,376.
Environmental Justice Public Engagement 1 1 1 24 hrs.; $2,184............ 24 hrs.; $2,184.
Plan.
Congestion and System Analysis Data \96\ 1 1 1 160 hrs.; $14,560.......... 160 hrs.; $14,560.
Other Updates to 18 CFR pt. 50 \97\..... 1 1 1 28 hrs.; $2,548............ 28 hrs.; $2,548.
Resource Report: Tribal Resources....... 1 1 1 40 hrs.; $3,640............ 40 hrs.; $3,640.
Resource Report: Environmental Justice.. 1 1 1 80 hrs.; $7,280............ 80 hrs.; $7,280.
Resource Report: Air Quality & 1 1 1 296 hrs.; $26,936.......... 296 hrs.; $26,936.
Environmental Noise.
Information on Visual Impacts........... 1 1 1 100 hrs.; $9,100........... 100 hrs.; $9,100.
Other Updates to 18 CFR pt. 380 \98\.... 1 1 1 148 hrs.; $13,468.......... 148 hrs.; $13,468.
---------------------------------------------------------------------------------------------------------------
Total............................... .............. ................. 11 ........................... 1,012 hrs.; $92,092.
--------------------------------------------------------------------------------------------------------------------------------------------------------
89. Titles: FERC-729--Electric Transmission Facilities.
90. Action: Revisions to information collection FERC-729.
91. OMB Control Nos.: 1902-0238 (FERC-729).
92. Respondents: Entities proposing to construct electric
transmission facilities pursuant to the Commission's authority under
section 216 of the FPA.
93. Frequency of Information: Ongoing.
94. Necessity of Information: The new information collection
requirements are necessary for the Commission to carry out its
responsibilities under the FPA, as amended by the IIJA, and NEPA. The
required information would enable the Commission to review the features
of the proposed project and determine whether the proposed project
meets the statutory criteria enumerated in section 216(b) of the FPA.
In addition, the proposed revisions to the Commission's mandatory pre-
filing process that would require certain information to be filed
earlier in the process would help ensure that an application can be
acted on no later than one year after the date of filing in compliance
with section 216(h)(4)(B). The revised regulations would affect only
the number of entities that would pursue a permit to site electric
transmission facilities.
95. Internal Review: The Commission has reviewed the proposed
revisions and has determined that they are necessary. These
requirements conform to the Commission's need for efficient information
collection, communication, and management within the energy industry.
The Commission has assured itself, by means of internal review, that
there is specific, objective support for the burden estimates
associated with the information collection requirements.
96. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown,
Office of the Executive Director], by email to
[[Page 2782]]
[email protected] or by phone (202) 502-8663.
97. Comments concerning the collections of information and the
associated burden estimates may also be sent to: Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street NW, Washington, DC 20503 [Attention: Desk Officer for the
Federal Energy Regulatory Commission]. Due to security concerns,
comments should be sent electronically to the following email address:
[email protected]. Comments submitted to OMB should refer to
FERC-729 (OMB Control No. 1902-0238).
IV. Environmental Analysis
98. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant effect on the human environment.\99\ The Commission
has categorically excluded certain actions from this requirement as not
having a significant effect on the human environment, including the
promulgation of rules that are clarifying, corrective, or procedural,
or that do not substantially change the effect of legislation or the
regulations being amended.\100\ Because the actions proposed herein
fall within this categorical exclusion, preparation of an Environmental
Assessment or an Environmental Impact Statement is not required.
---------------------------------------------------------------------------
\99\ Regs. Implementing the Nat'l Env'l Pol'y Act of 1969, Order
No. 486, 52 FR 47897 (Dec. 10, 1987), FERC Stats. & Regs. ] 30,783
(1987) (cross-referenced at 41 FERC ] 61,284).
\100\ 18 CFR 380.4(a)(2)(ii) (2021).
---------------------------------------------------------------------------
V. Regulatory Flexibility Act
99. The Regulatory Flexibility Act of 1980 (RFA) \101\ generally
requires a description and analysis of proposed rules that will have
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a proposed rule and minimize any
significant economic impact on a substantial number of small
entities.\102\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a proposed rule will not have a significant
economic impact on a substantial number of small entities.\103\
---------------------------------------------------------------------------
\101\ 5 U.S.C. 601-612.
\102\ Id. 603(c).
\103\ Id. 605(b).
---------------------------------------------------------------------------
100. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\104\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\105\ Under SBA's size standards, a
transmission owner covered under the category of Electric Bulk Power
Transmission and Control (NAICS code 221121) \106\ is small if,
including its affiliates, it employs 500 or fewer people.\107\
---------------------------------------------------------------------------
\104\ 13 CFR 121.101 (2021).
\105\ Id. 121.201.
\106\ The North American Industry Classification System (NAICS)
is an industry classification system that Federal statistical
agencies use to categorize businesses for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry
Classification System, https://www.census.gov/eos/www/naics/.
\107\ 13 CFR 121.201 (Sector 22--Utilities).
---------------------------------------------------------------------------
101. In Order No. 689, the Commission expected that entities
seeking approval for transmission siting projects under FPA section 216
would be major transmission utilities capable of financing complex and
costly transmission projects.\108\ At that time, the Commission
anticipated that the high cost of constructing transmission facilities
would preclude entry into this field by small entities as defined by
the RFA.\109\ Though the SBA size standard for electric utilities has
changed from megawatt hours to number of employees since Order No. 689
was issued, we continue to find it unlikely that small entities in any
number, let alone a substantial number, will pursue the permitting of
transmission projects before the Commission. Since Order No. 689, only
Southern California Edison, which would not qualify as a small entity
under the SBA's current size standards, has participated in the
Commission's pre-filing process for applications to site transmission
facilities under section 216. To date, the Commission has not received
any applications for permits to site transmission facilities under
section 216.
---------------------------------------------------------------------------
\108\ Order No. 689 Final Rule, 117 FERC ] 61,202 at P 73.
\109\ Id.
---------------------------------------------------------------------------
102. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
VI. Comment Procedures
103. The Commission invites interested persons to submit comments
on the matters and issues proposed in this notice to be adopted,
including any related matters or alternative proposals that commenters
may wish to discuss. Comments are due April 17, 2023. Comments must
refer to Docket No. RM22-7-000 and must include the commenter's name;
the organization they represent, if applicable; and their address in
their comments. All comments will be placed in the Commission's public
files and may be viewed, printed, or downloaded remotely as described
in the Document Availability section below. Commenters on this proposal
are not required to serve copies of their comments on other commenters.
104. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at https://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software must be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
105. Commenters that are not able to file comments electronically
may file an original of their comment by U.S. Postal Service mail or by
courier or other delivery services. For submission sent via U.S. Postal
Service only, filings should be mailed to: Federal Energy Regulatory
Commission, Office of the Secretary, 888 First Street NE, Washington,
DC 20426. Submission of filings other than by U.S. Postal Service
should be delivered to: Federal Energy Regulatory Commission, 12225
Wilkins Avenue, Rockville, MD 20852.
VII. Document Availability
106. In addition to publishing the full text of this document in
the Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (https://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
107. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
108. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at (202)
[[Page 2783]]
502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
List of Subjects
18 CFR Part 50
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 380
Environmental impact statements, Reporting and recordkeeping
requirements.
By direction of the Commission.
Commissioner Danly is concurring with a separate statement attached.
Commissioner Christie is concurring with separate statement attached.
(S E A L)
Issued December 15, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.
In consideration of the foregoing, the Commission proposes to amend
Parts 50 and 380, Chapter I, Title 18, Code of Federal Regulations, as
follows.
PART 50--APPLICATIONS FOR PERMITS TO SITE INTERSTATE ELECTRIC
TRANSMISSION FACILITIES
0
1. The authority citation for part 50 continues to read as follows:
Authority: 16 U.S.C. 824p; DOE Delegation Order No. 00-004.00A.
0
2. Amend Sec. 50.1 as follows:
0
a. Add a definition in alphabetical order for ``Environmental justice
community'';
0
b. Remove the words ``special use authorization'' in the definition of
``Federal authorization'' and add in its place the words ``special use
authorizations'';
0
c. Add a definition in alphabetical order for ``Indian Tribe''; and
0
d. Revise the definitions of ``National interest electric transmission
corridor'', ``Permitting entity'', and ``Stakeholder''.
The additions and revisions read as follows:
Sec. 50.1 Definitions.
* * * * *
Environmental justice community means any disadvantaged community
that has been historically marginalized and overburdened by pollution.
Environmental justice communities include, but may not be limited to,
minority populations, low-income populations, or indigenous peoples.
* * * * *
Indian Tribe means an Indian Tribe that is recognized by treaty
with the United States, by Federal statute, or by the U.S. Department
of the Interior in its periodic listing of Tribal governments in the
Federal Register in accordance with 25 CFR 83.6(a), and whose Tribal
interests may be affected by the development and operation of the
proposed transmission facilities.
National interest electric transmission corridor means any
geographic area that is experiencing electric energy transmission
capacity constraints or congestion that adversely affects consumers or
is expected to experience such energy transmission capacity constraints
or congestion, as designated by the Secretary of Energy.
Permitting entity means any Federal or State agency, Indian Tribe,
or multistate entity that is responsible for issuing separate
authorizations pursuant to Federal law that are required to construct
electric transmission facilities in a national interest electric
transmission corridor.
Stakeholder means any Federal, State, interstate, or local agency;
any Tribal government; any affected landowner; any environmental
justice community member; or any other interested person or
organization.
* * * * *
Sec. 50.2 [Amended]
0
3. Amend Sec. 50.2 as follows:
0
a. Remove the word ``tribes'' in the third sentence of paragraph (a)
and add in its place the word ``Tribes''; and
0
b. Remove the word ``which'' in paragraph (c) and add in its place the
word ``that''.
0
4. Amend Sec. 50.3 by revising paragraph (b) to read as follows:
Sec. 50.3 Applications/pre-filing; rules and format.
* * * * *
(b) Applications, amendments, and all exhibits and other
submissions required to be furnished by an applicant to the Commission
under this part must be submitted in electronic format.
* * * * *
0
5. Amend Sec. 50.4 as follows:
0
a. Revise paragraphs (a)(1) through (3);
0
b. Add paragraph (a)(4); and
0
c. Revise the first sentence of paragraph (c)(1) introductory text and
revise paragraphs (c)(1)(ii) and (c)(2) through (4).
The revisions and addition read as follows:
Sec. 50.4 Stakeholder participation.
* * * * *
(a) * * *
(1) Identifies specific tools and actions to facilitate stakeholder
communications and public information, including an up-to-date project
website with an interactive mapping component, and a readily
accessible, single point of contact for the applicant;
(2) Lists all central locations in each county throughout the
project area where the applicant will provide copies of all its filings
related to the proposed project;
(3) Includes a description and schedule explaining how the
applicant intends to respond to requests for information from the
public, permitting entities, and other legal entities with local
authorization requirements; and
(4) Includes an Environmental Justice Public Engagement Plan that
addresses all targeted outreach to identified environmental justice
communities. This plan must summarize comments received from
potentially impacted environmental justice communities during any
previous outreach activities and describe planned targeted outreach
activities with such communities during the pre-filing process and
after the filing of an application, including efforts to identify,
engage, and accommodate non-English speaking groups or linguistically
isolated communities. This plan must also describe how the applicant
will conduct outreach to environmental justice communities about any
potential mitigation.
* * * * *
(c) * * *
(1) The applicant must make a good faith effort to notify all:
affected landowners; landowners with a residence within a quarter mile
of the edge of the construction right-of-way of the proposed project;
municipalities in the project area; permitting entities; other local,
State, Tribal, and Federal governments and agencies involved in the
project; electric utilities and transmission owners and operators that
are, or may be, connected to the proposed transmission facilities; any
known individuals or organizations that have expressed an interest in
the State siting proceeding; and any other individuals or organizations
that have expressed to the applicant, or its representatives, an
interest in the proposed project. * * *
* * * * *
(ii) By twice publishing a notice of the pre-filing request and
application filings, in a daily, weekly, and/or Tribal newspaper of
general circulation in each county in which the project is located, no
later than 14 days after the date that a docket number is assigned for
the pre-filing process or to the application.
[[Page 2784]]
(2) Contents of participation notice. (i) Any pre-filing request
notification sent by mail or published in a newspaper must, at a
minimum, include:
(A) The docket number assigned to the proceeding;
(B) The most recent edition of the Commission's pamphlet Electric
Transmission Facilities Permit Process. The newspaper notice need only
refer to the pamphlet and indicate that it is available on the
Commission's website;
(C) A description of the applicant and a description of the
proposed project, its location (including a general location map), its
purpose, and the proposed project schedule;
(D) Contact information for the applicant, including a local or
toll-free telephone number, the name of a specific contact person who
is knowledgeable about the project, and information on how to access
the project website;
(E) Information on how to get a copy of the pre-filing information
from the applicant and the location(s) where copies of the pre-filing
information may be found as specified in paragraph (b) of this section;
(F) A copy of the Director's notification of commencement of the
pre-filing process, the Commission's internet address, and contact
information for the Commission's Office of Public Participation;
(G) Information explaining the pre-filing and application processes
and when and how to intervene in the application proceedings; and
(H) Information explaining that the Commission's pre-filing and
application processes are separate from any simultaneous State siting
proceeding(s) and how to participate in any such State siting
proceeding(s).
(ii) In addition to the requirements of paragraph (c)(2)(i) of this
section, any pre-filing request notification sent by mail to an
affected landowner must also include:
(A) A general description of the property the applicant will need
from an affected landowner if the project is approved;
(B) The most recent edition of the document entitled ``Landowner
Bill of Rights in Federal Energy Regulatory Commission Electric
Transmission Proceedings,'' on its own page(s) in at least 12-point
font, legible, and contained within the first 10 pages of the
notification; and
(C) A brief summary of what specific rights the affected landowner
has in proceedings under the eminent domain rules of the relevant
State.
(iii) The application notification must include the Commission's
notice issued under Sec. 50.9 and restate, or clearly identify the
location of, the comment and intervention instructions provided in the
Commission's notice.
(3) If, for any reason, a person or entity entitled to this notice
has not yet been identified when the notices under this paragraph (c)
are sent or published, the applicant must supply the information
required under paragraphs (c)(2)(i) through (iii) of this section, as
applicable, when the person or entity is identified.
(4) If the notification is returned as undeliverable, the applicant
must make a reasonable attempt to find the correct address and re-send
the notice.
* * * * *
0
6. Amend Sec. 50.5 as follows:
0
a. Revise paragraph (c) introductory text, the first sentence of
paragraph (c)(3) introductory text, paragraph (c)(3)(i), and the first
sentence of paragraph (c)(5);
0
b. Add paragraphs (c)(8) and (9);
0
c. Revise paragraphs (d)(1)(i) and (e)(3)(i);
0
d. Remove paragraph (e)(3)(ii);
0
e. Redesignate paragraph (e)(3)(iii) as (e)(3)(ii);
0
f. Revise the first sentence of paragraph (e)(4);
0
g. Redesignate paragraphs (e)(7) and (8) as paragraphs (e)(9) and (10),
respectively;
0
h. Add new paragraphs (e)(7) and (8); and
0
i. Revise the first sentence of newly redesignated paragraph (e)(10).
The revisions and additions read as follows:
Sec. 50.5 Pre-filing procedures.
* * * * *
(c) Contents of the initial filing. An applicant's pre-filing
request cannot be filed prior to the initial consultation and must
include the following information:
* * * * *
(3) A list of the permitting entities responsible for conducting
separate Federal permitting and environmental reviews and
authorizations for the project, including contact names and telephone
numbers, and a list of Tribal, State, and local entities with
authorization requirements. * * *
(i) How the applicant intends to account for each of the relevant
entity's permitting and environmental review schedules, including its
progress in the Department of Energy's pre-application process; and
* * * * *
(5) A description of completed work, including contacting
stakeholders, agency and Tribal consultations, project engineering,
route planning, environmental and engineering contractor engagement,
environmental surveys/studies, open houses, and any work completed or
actions taken in conjunction with a State proceeding. * * *
* * * * *
(8) A detailed description of how the proposed project will reduce
capacity constraints and congestion on the transmission system.
(9) A statement indicating whether the applicant intends to comply
with the Applicant Code of Conduct described in Sec. 50.12, and, if
not, how the applicant intends to ensure good faith dealings with
affected landowners.
(d) * * *
(1) * * *
(i) The notification will designate the third-party contractor, if
applicable, and
* * * * *
(e) * * *
(3) * * *
(i) Provide project notification in compliance with the
requirements of Sec. 50.4(c); and
* * * * *
(4) Within 30 days, submit a mailing list of all notifications made
under paragraph (e)(3) of this section, including the names of the
Federal, State, Tribal, and local jurisdictions' representatives. * * *
* * * * *
(7) Within 30 days, file supporting information showing how the
proposed project will reduce capacity constraints and congestion on the
transmission system, including:
(i) Full report(s) of the System Impact Study for the proposed
project;
(ii) For each transmission planning region that would be crossed by
the proposed project, the most recent Regional Transmission Plan; and
(iii) Expert witness testimony and other relevant information
submitted with the State siting application(s), where applicable.
(8) Within 30 days, file a draft Exhibit H--System analysis data
required in Sec. 50.7.
* * * * *
(10) On a monthly basis, file status reports detailing the
applicant's project activities, including surveys, stakeholder
communications, agency and Tribal meetings, and updates on the status
of other required permits or authorizations. * * *
* * * * *
0
7. Amend Sec. 50.6 as follows:
0
a. Revise paragraph (b), the second sentence of paragraph (c), and
paragraphs (d), (e)(1), and (e)(3)(i) and (ii);
[[Page 2785]]
0
b. Add paragraph (e)(3)(iii); and
0
c. Revise paragraph (i).
The revisions and addition read as follows:
Sec. 50.6 Applications: general content.
* * * * *
(b) A concise description of applicant's existing operations, if
applicable.
(c) * * * The description must, at a minimum: identify the proposed
geographic location of the principal project features and the planned
routing of the transmission line; contain the general characteristics
of the transmission line, including voltage, types of towers, point of
receipt and point of delivery, and the geographic character of the area
traversed by the line; and be accompanied by an overview map of
sufficient scale to show the entire transmission route on one (or a
few) 8.5 by 11-inch sheets.
(d) Verification that the proposed route lies within a national
interest electric transmission corridor designated by the Secretary of
the Department of Energy under section 216 of the Federal Power Act,
including the date on which the relevant corridor was designated.
(e) * * *
(1) A State in which the transmission facilities are to be
constructed or modified does not have the authority to approve the
siting of the facilities or consider the interstate benefits or
interregional benefits expected to be achieved by the proposed
construction or modification of transmission facilities in the State;
* * * * *
(3) * * *
(i) Not made a determination on an application seeking approval
pursuant to applicable law;
(ii) Conditioned its approval in such a manner that the proposed
construction or modification will not significantly reduce transmission
capacity constraints or congestion in interstate commerce or is not
economically feasible; or
(iii) Denied an application seeking approval pursuant to applicable
law.
* * * * *
(i) A full statement as to whether any other application to
supplement or effectuate the applicant's proposal must be (or is to be)
filed by the applicant, any of the applicant's customers, or any other
person with any other Federal, State, Tribal, or other regulatory body;
and if so, the nature and status of each such application.
* * * * *
0
8. Amend Sec. 50.7 as follows:
0
a. Revise the introductory text and paragraphs (g)(1)(i) and (vi),
(g)(2)(ii) and (vi), (g)(3)(iii), (g)(4)(iii), (g)(5) introductory
text, (g)(6) introductory text, (g)(6)(ii), (g)(8), (h)(1), the first
sentence of paragraph (h)(2) introductory text, and paragraph
(h)(2)(ii);
0
b. Remove paragraphs (h)(3) and (4);
0
c. Redesignate paragraphs (h)(5) and (6) as paragraphs (h)(3) and (4);
and
0
d. Revise newly redesignated paragraphs (h)(3) and (4) and paragraphs
(i)(2) and and (j).
The revisions read as follows:
Sec. 50.7 Applications: exhibits.
Each exhibit must contain a title page showing the applicant's
name, the title of the exhibit, and the proper letter designation of
the exhibit. If an exhibit is 10 or more pages in length, it must
include a table of contents citing (by page, section number, or
subdivision) the component elements or matters contained in the
exhibit.
* * * * *
(g) * * *
(1) * * *
(i) Name, point of receipt, and point of delivery of the project;
* * * * *
(vi) Line design features that minimize audible corona noise during
fog/rain caused by operation of the proposed facilities.
(2) * * *
(ii) Type of structures, including overhead and underground
structures;
* * * * *
(vi) A list of the names of all new (and existing, if applicable)
substations or switching stations that will be associated with the
proposed transmission line.
(3) * * *
(iii) Width of the right-of-way; and
* * * * *
(4) * * *
(iii) Conductor size, conductor type, and number of conductors per
phase.
(5) If the proposed project includes an overhead transmission line,
the following additional information also must be provided:
* * * * *
(6) If an underground or underwater transmission line is proposed,
the following additional information also must be provided:
* * * * *
(ii) Type of cable and a description of any required supporting
equipment, such as pressurizing plants;
* * * * *
(8) Any other data or information identified as a minimum
requirement for the siting of a transmission line in the State in which
the facility will be located.
(h) * * *
(1) An analysis of the existing and expected capacity constraints
and congestion on the electric transmission system.
(2) Steady-state, short-circuit, and dynamic power flow cases, as
applicable, used to analyze the existing transmission system, proposed
project, and future transmission system under anticipated load growth,
operating conditions, variations in power import and export levels,
generation additions and retirements, and additional transmission
facilities required for system reliability. * * *
* * * * *
(ii) State the assumptions, criteria, and guidelines upon which the
models are based and take into consideration transmission facility
loading, planned and forecasted forced outage rate for generation and
transmission, generation dispatch scenarios, system protection, and
system stability.
(3) A concise analysis of how the proposed project will:
(i) Improve system reliability over the long and short term;
(ii) Impact long-term regional transmission expansion plans;
(iii) Impact congestion on the applicant's entire system and
neighboring systems; and
(iv) Incorporate any advanced technology design features, if
applicable.
(4) Single-line diagrams, including existing system facilities
identified by name and circuit number, that show system transmission
elements, in relation to the project and other principal interconnected
system elements, as well as power flow and loss data that represent
system operating conditions.
(i) * * *
(2) The estimated capital cost and estimated annual operations and
maintenance expense of each proposed mitigation measure.
* * * * *
(j) Exhibit J--Construction, operation, and management. A concise
statement providing arrangements for supervision, management,
engineering, accounting, legal, or other similar services to be
rendered in connection with the construction, operation, and
maintenance of the project, if not to be performed by employees of the
applicant, including reference to any existing or contemplated
agreements, together with a statement showing any affiliation between
the applicant and
[[Page 2786]]
any parties to the agreements or arrangements.
Sec. 50.8 [Amended]
0
9. Amend Sec. 50.8 as follows:
0
a. Remove the word ``applicant's'' in the second sentence of paragraph
(b) and add in its place the word ``applicant''; and
0
b. Remove the comma directly following the word ``rejected'' in
paragraph (c).
0
10. Amend Sec. 50.9 by revising paragraph (b) to read as follows:
Sec. 50.9 Notice of Application
* * * * *
(b) The notice will establish prompt and binding intermediate
milestones and ultimate deadlines for the review of, and Federal
authorization decisions relating to, the proposed facilities.
Sec. 50.11 [Amended]
0
11. Amend Sec. 50.11 as follows:
0
a. Revise paragraph (a) and the second sentence of paragraph (b);
0
b. Add a sentence at the end of paragraph (d) introductory text and add
paragraphs (d)(1) and (2);
0
c. Remove the word ``permitee'' in the first sentence of paragraph (e)
and add in its place the word ``permittee'';
0
d. Remove the word ``Order'' in the first sentence of paragraph (g)
introductory text and add in its place the word ``order''; and
0
e. Remove the word ``Orders'' in paragraph (g)(2) and add in its place
the word ``orders''.
The revisions and addition read as follows:
Sec. 50.11 General conditions applicable to permits.
(a) The following terms and conditions, along with others that the
Commission finds are required by the public interest, will attach to
the issuance of each permit and to the exercise of the rights granted
under the permit.
(b) * * * Provided that, when an applicant files for rehearing of
the order in accordance with FPA section 313(a), the acceptance must be
filed within 30 days after final disposition of the request for
rehearing. * * *
* * * * *
(d) * * * Provided that, no authorization to proceed with
construction activities will be issued:
(1) Until the time for the filing of a request for rehearing under
16 U.S.C. 825l(a) has expired with no such request being filed, or
(2) If a timely request for rehearing raising issues reflecting
opposition to project construction, operation, or need is filed, until:
(i) The request is no longer pending before the Commission;
(ii) The record of the proceeding is filed with the court of
appeals; or
(iii) 90 days has passed after the date that the request for
rehearing may be deemed to have been denied under 16 U.S.C. 825l(a).
* * * * *
0
12. Add Sec. 50.12 to read as follows:
Sec. 50.12 Applicant code of conduct for landowner engagement.
Under section 216(e)(1) of the Federal Power Act, any applicant
that may, upon receipt of a permit, seek to acquire the necessary
right-of-way by the exercise of the right of eminent domain must
demonstrate to the Commission that it has made good faith efforts to
engage with landowners and other stakeholders early in the applicable
permitting process. An applicant's commitment to and compliance with
the Applicant Code of Conduct in its communications with affected
landowners during the permitting process is one way to demonstrate to
the Commission that such good faith efforts have been made.
(a) Applicant code of conduct. To promote good faith engagement
with affected landowners, applicants committing to comply with the
Applicant Code of Conduct must:
(1) For the duration of the pre-filing and application review
process, develop and retain a log of discussions with affected
landowners, organized by name and property address, that includes:
(i) The name of the affected landowner;
(ii) The substance of the items discussed;
(iii) The nature of the contact (such as in-person, virtual
meeting, telephone, electronic mail);
(iv) The date of the contact; and
(v) The status of discussions with the affected landowner following
the contact, including any permissions granted, negotiations, or future
meetings scheduled.
(2) In addition to the pre-filing request notification required by
Sec. 50.4(c)(1)(i) and (ii), provide to each affected landowner, prior
to, during, or immediately after the first contact, a document that, at
a minimum, includes: a description of the project, a description of the
Commission and its role, a map of the project route, and the Landowner
Bill of Rights in the form described in Sec. 50.4(c)(2)(ii)(B). If the
first contact with the affected landowner is in-person, the applicant
must offer to provide the affected landowner at least one paper copy of
the document. If the first contact with the affected landowner is by
telephone, text, or electronic mail, the applicant may provide the
affected landowner with a copy of the document by electronic means or
by first class mail, at the affected landowner's preference. The
applicant must review the provisions of the document with the affected
landowner upon request.
(3) Ensure that any representative acting on the applicant's behalf
states their full name, title, and employer, as well as the name of the
applicant that they represent, at the beginning of any discussion with
an affected landowner, and provides the representative's contact
information, including mailing address, telephone number, and
electronic mail address, prior to the end of the discussion.
(4) Ensure that all communications with affected landowners are
factually correct. The applicant must correct any statements made by it
or any representative acting on its behalf that it becomes aware were:
(i) Inaccurate when made; or
(ii) Have been rendered inaccurate based on subsequent events,
within three business days of discovery of any such inaccuracy.
(5) Ensure that communications with affected landowners do not
misrepresent the status of the discussions or negotiations between the
parties.
(6) Provide affected landowners with updated contact information
whenever an applicant's contact information changes.
(7) Communicate respectfully with affected landowners and avoid
harassing, coercive, manipulative, or intimidating communications or
high-pressure tactics.
(8) Except as otherwise provided by State or local law, abide by an
affected landowner's request to end the communication or for the
applicant or its representative to leave the affected landowner's
property.
(9) Except as otherwise provided by State or local law, obtain an
affected landowner's permission prior to entering the property,
including for survey or environmental assessment, and leave the
property without argument or delay if the affected landowner revokes
permission.
(10) Refrain from discussing an affected landowner's communications
or negotiations status with any other affected landowner.
(11) Provide the affected landowner with a copy of any appraisal
that has been prepared by, or on behalf of, the applicant for that
affected landowner's property, if any, before discussing the value of
the property in question.
[[Page 2787]]
(12) Ensure that any representative acting on the applicant's
behalf complies with all provisions of the Applicant Code of Conduct
described in this paragraph (a).
(b) Compliance with Applicant Code of Conduct. Applicants
committing to comply with the Applicant Code of Conduct must:
(1) File, as part of the pre-filing request required by Sec.
50.5(c), an affirmative statement that the applicant intends to comply
with the Applicant Code of Conduct.
(2) Include, as part of the monthly status reports required by
Sec. 50.5(e)(10):
(i) An affirmation that the applicant and its representatives have,
to the best of their knowledge, complied with the Applicant Code of
Conduct during the month in question; or
(ii) A detailed explanation of any instances of non-compliance with
the Applicant Code of Conduct during the month in question and any
remedial actions taken or planned.
(3) Identify, in a filing with the Commission or as part of the
monthly status reports required by Sec. 50.5(e)(10), any known
instances of non-compliance that were not disclosed in prior monthly
status reports and explain any remedial actions taken in the current
month to address instances of non-compliance occurring in prior months.
(c) Compliance with an alternative method. Applicants not
committing to comply with the Applicant Code of Conduct must:
(1) File, as part of the pre-filing request required by Sec.
50.5(c):
(i) An affirmative statement that the applicant intends to rely on
an alternative method of demonstrating that it meets the good faith
efforts standard;
(ii) A detailed explanation of the alternative method of
demonstrating that it meets the good faith efforts standard, including
any commitments to record-keeping, information-sharing, or other
conduct;
(iii) An explanation of how the alternative method is equal to or
superior to compliance with the Applicant Code of Conduct as a means to
ensure the good faith efforts standard is met;
(iv) An explanation, for each component of the Applicant Code of
Conduct with which it does not comply, why it did not follow that
component; and
(v) An explanation, for each component of the Applicant Code of
Conduct with which it does not comply, why the alternative method is an
equal or better means to ensure the good faith standard is met
notwithstanding that deviation from the Applicant Code of Conduct.
PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL
POLICY ACT
0
13. The authority citation for part 380 continues to read as follows:
Authority: 42 U.S.C. 4321-4370h, 7101-7352; E.O. 12009, 3 CFR
1978 Comp., p. 142.
0
14. Amend Sec. 380.2 by redesignating paragraphs (f) and (g) as
paragraphs (g) and (h) and adding new paragraph (f).
The addition reads as follows:
Sec. 380.2 Definitions and terminology.
* * * * *
(f) Environmental justice community means any disadvantaged
community that has been historically marginalized and overburdened by
pollution. Environmental justice communities include, but may not be
limited to, minority populations, low-income populations, or indigenous
peoples.
* * * * *
Sec. 380.13 [Amended]
0
15. Amend Sec. 380.13 in paragraph (b)(2)(i) by adding ``or Sec.
380.16, as applicable'' directly after the reference to ``Sec.
380.12''.
Sec. 380.14 [Amended]
0
16. Amend Sec. 380.14 in paragraph (a) introductory text as follows:
0
a. Remove the parenthetical reference to ``16 U.S.C. 470(f)'' in the
first sentence and adding, in its place, a parenthetical reference to
``54 U.S.C. 306108''; and
0
b. Add the ``or Sec. 380.16(f), as applicable'' directly after the
reference to ``380.12(f)''.
0
17. Amend Sec. 380.16 as follows:
0
a. Revise the second sentence of paragraph (a)(1), revise paragraph
(b)(3), revise the first sentence of paragraph (c) introductory text
and the first sentence of paragraph (c)(1), and revise paragraphs
(c)(2)(i) through (iii) and (c)(3) and (4);
0
b. Revise paragraph (d)(6) and the second sentence of paragraph (d)(7);
0
c. Revise paragraph (e)(3), the first two sentences of paragraph
(e)(4), the first and third sentences of paragraph (e)(5), and
paragraphs (e)(6) through (8);
0
d. Revise paragraphs (f)(1)(i), (iii), (iv), and (v), (f)(2)
introductory text, and the first sentence of paragraph (f)(4);
0
e. Revise the first sentence of paragraph (g) introductory text and
paragraphs (g)(3) and (6);
0
f. Redesignate paragraphs (k) through (m) as paragraphs (n) through
(p);
0
g. Redesignate paragraphs (h) through (j) as paragraphs (j) through
(l);
0
h. Add new paragraphs (h) and (i);
0
i. Revise the heading and the second sentence of newly redesignated
paragraph (j) introductory text and revise newly redesignated paragraph
(j)(3);
0
j. Revise the newly redesignated paragraph (k) heading and paragraphs
(k) introductory text and (k)(2) and (3);
0
k. Add paragraph (k)(4);
0
l. Revise newly redesignated paragraph (l);
0
m. Add new paragraph (m);
0
n. Revise the newly redesignated paragraph (n) heading and introductory
text, the second sentence of newly redesignated paragraph (n)(2)(i),
and the second sentence of newly redesignated paragraph (n)(2)(ii);
0
o. Revise the newly redesignated paragraph (o) heading and introductory
text, newly redesignated paragraphs (o)(1) through (4), the first
sentence of newly redesignated paragraph (o)(5), and newly redesignated
paragraph (o)(7); and
0
p. Revise the newly redesignated paragraph (p) heading, the second
sentence of newly redesignated paragraph (p) introductory text, the
third sentence of newly redesignated paragraph (p)(2), and newly
redesignated paragraphs (p)(3)(i) and (iii) and (p)(4).
The revisions and additions read as follows:
Sec. 380.16 Environmental reports for Section 216 Federal Power Act
Permits.
(a) * * *
(1) * * * The environmental report must include the 14 resource
reports and related material described in this section.
* * * * *
(b) * * *
(3) Identify the effects of construction, operation (including
malfunctions), and maintenance, as well as cumulative effects resulting
from the incremental effects of the project when added to the effects
of other past, present, and reasonably foreseeable actions;
* * * * *
(c) * * * This report must describe facilities associated with the
project; special construction, operation, and maintenance procedures;
construction timetables; future plans for related construction;
compliance with regulations and codes; and permits that must be
obtained. * * *
(1) Describe and provide location maps of all project facilities
(such as transmission line towers, substations, and any appurtenant
facilities) to be constructed, modified, replaced, or removed, and
related construction and operational support activities and areas,
[[Page 2788]]
such as maintenance bases, staging areas, communications towers, power
lines, and new access roads (roads to be built or modified). * * *
(2) * * *
(i) Current, original United States Geological Survey (USGS) 7.5-
minute series topographic maps, or maps of equivalent detail, covering
at least a 0.5-mile-wide corridor centered on the electric transmission
facility centerline, with integer mileposts identified, showing the
location of rights-of-way, new access roads, other linear construction
areas, substations, and construction materials storage areas. Nonlinear
construction areas must be shown on maps at a scale of 1:3,600, or
larger, keyed graphically and by milepost to the right-of-way maps. The
topographic maps must depict the facilities identified under paragraph
(l)(5) of this section, including any facilities located outside of the
0.5-mile-wide corridor.
(ii) Original aerial images or photographs or photo-based alignment
sheets based on these sources, not more than one year old (unless older
ones accurately depict current land use and development) and with a
scale of 1:6,000, or larger, showing the proposed transmission line
route and location of transmission line towers, substations and
appurtenant facilities, covering at least a 0.5-mile-wide corridor, and
including mileposts. The aerial images or photographs or photo-based
alignment sheets must show all existing transmission facilities located
in the area of the proposed facilities and the facilities identified
under paragraph (l)(5) of this section, including any facilities
located outside of the 0.5-mile-wide corridor. Older images/
photographs/alignment sheets must be modified to show any facilities
not depicted in the original. Alternative formats (e.g., blue-line
prints of acceptable resolution) need prior approval by the
environmental staff of the Commission's Office of Energy Projects.
(iii) In addition to the requirements under Sec. 50.3(b) of this
chapter, the applicant must contact the environmental staff of the
Office of Energy Projects regarding the need for any additional copies
of topographic maps and aerial images/photographs.
(3) Describe and identify, by milepost, proposed general
construction and restoration methods, and any special methods to be
used in areas of rugged topography, residential areas, active
croplands, and sites where explosives are likely to be used. Describe
any proposed horizontal directional drilling and pile driving that may
be necessary.
(4) Identify the number of construction spreads, average workforce
requirements for each construction spread and estimated duration of
construction from initial clearing to final restoration. Indicate the
days of the week and times of the day that proposed construction
activities would occur and describe any proposed nighttime construction
activities.
* * * * *
(d) * * *
(6) Discuss proposed mitigation measures to reduce the potential
for adverse impacts to surface water, wetlands, or groundwater quality.
Discuss the potential for blasting or contamination/spills to affect
water wells, springs, and wetlands, and measures to be taken to detect
and remedy such effects. Describe the impact of proposed land clearing
and vegetation management practices, including herbicide treatment, in
the project area on water resources.
(7) * * * Identify locations of Environmental Protection Agency or
State-designated, sole-source aquifers and wellhead protection areas
crossed by the proposed transmission line facilities.
(e) * * *
(3) Describe and provide the acreage of vegetation cover types that
would be affected, including unique ecosystems or communities, such as
remnant prairie, interior forest, or old-growth forest, or significant
individual plants, such as old-growth specimen trees.
(4) Describe the impact of construction, operation, and maintenance
on aquatic and terrestrial species and their habitats, including the
possibility of a major alteration to ecosystems or biodiversity, and
any potential impact on State-listed endangered or threatened species.
Describe the impact of proposed land clearing and vegetation management
practices, including herbicide treatment, in the project area on fish,
wildlife, and vegetation. * * *
(5) Identify all federally listed or proposed threatened or
endangered species and critical habitat that potentially occur in the
vicinity of the project. * * * The application must include the results
of any required surveys unless seasonal considerations make this
impractical. * * *
(6) Identify all federally listed essential fish habitat (EFH) that
potentially occurs in the vicinity of the project. Provide information
on all EFH, as identified by the pertinent Federal fishery management
plans, that may be adversely affected by the project and the results of
abbreviated consultations with the National Marine Fisheries Service,
and any resulting EFH assessments.
(7) Describe proposed, site-specific mitigation measures to
minimize impacts on fisheries, wildlife, and vegetation.
(8) Include copies of correspondence not provided under paragraph
(e)(5) of this section, containing recommendations from appropriate
Federal and State fish and wildlife agencies to avoid or limit impacts
on wildlife, fisheries, and vegetation, and the applicant's response to
the recommendations.
(f) * * *
(1) * * *
(i) Documentation of the applicant's initial cultural resource
consultations, including consultations with Native Americans and other
interested persons (if appropriate);
* * * * *
(iii) An Evaluation Report, as appropriate;
(iv) A Treatment Plan, as appropriate; and
(v) Written comments from State Historic Preservation Officer(s)
(SHPO), Tribal Historic Preservation Officers (THPO), as appropriate,
and applicable land-management agencies on the reports in paragraphs
(f)(1)(i) through (iv) of this section.
(2) The application or pre-filing documents, as applicable, must
include the documentation of initial cultural resource consultation(s),
the Overview and Survey Reports, if required, and written comments from
SHPOs, THPOs, and land-management agencies, if available. The initial
cultural resource consultations should establish the need for surveys.
If surveys are deemed necessary by the consultation with the SHPO/THPO,
the survey reports must be filed with the application or pre-filing
documents.
* * * * *
(4) The applicant must request privileged treatment for all
material filed with the Commission containing location, character, and
ownership information about cultural resources in accordance with Sec.
388.112 of this chapter. * * *
* * * * *
(g) * * * This report must identify and quantify the impacts of
project construction, operation, and maintenance on factors affecting
municipalities and counties in the vicinity of the project. * * *
* * * * *
(3) Describe on-site manpower requirements and payroll during
construction, operation, and maintenance, including the number of
[[Page 2789]]
construction personnel who currently reside within the impact area,
will commute daily to the site from outside the impact area, or will
relocate temporarily within the impact area.
* * * * *
(6) Conduct a fiscal impact analysis evaluating incremental local
government expenditures in relation to incremental local government
revenues that will result from the project. Incremental expenditures
include, but are not limited to, school operation, road maintenance and
repair, public safety, and public utilities.
(h) Resource Report 6--Tribal resources. This report must describe
Indian Tribes, Tribal lands, and Tribal interests that may be affected
by the proposed project. Resource Report 6 must:
(1) Identify Indian Tribes that may be affected by the
construction, operation, and maintenance of the proposed transmission
facilities.
(2) Describe the impacts of construction, operation, and
maintenance of the project on Indian Tribes and Tribal interests,
including those related to: water use and quality; wildlife and
vegetation; cultural and historic resources; socioeconomics; geological
resources; soils; land use, recreation, and aesthetics; air quality and
environmental noise; traffic; and health.
(3) Identify project impacts that may affect Tribal interests not
necessarily associated with resources specified in paragraph (h)(2) of
this section, e.g., treaties, Tribal practices, or agreements between
the Indian Tribe and entities other than the applicant.
(4) Identify Indian Tribes that may attach religious and cultural
significance to historic properties within the proposed project right-
of-way or in the project vicinity, as well as available information on
Indian traditional cultural and religious properties, whether on or off
of any Indian reservation.
(5) Ensure that information made available under this section not
include specific site or property locations, the disclosure of which
will create a risk of harm, theft, or destruction of archaeological or
Tribal cultural resources or to the site at which the resources are
located, or which would violate any Federal law, including the
Archaeological Resources Protection Act of 1979, 16 U.S.C. 470hh, and
the National Historic Preservation Act of 1966, 54 U.S.C. 307103.
(i) Resource Report 7--Environmental justice. This report must
address the effects of the proposed project on environmental justice
communities, as defined in Sec. 380.2 of this chapter. Resource Report
7 must:
(1) Identify environmental justice communities within the area of
potential project impacts using current guidance and data, including
localized data, from the Environmental Protection Agency, the Council,
the Census Bureau, and other authoritative sources. Provide maps
depicting identified environmental justice communities in relation to
the proposed project facilities using granular data.
(2) Describe the impacts of construction, operation, and
maintenance of the project on environmental justice communities,
including those related to: water use and quality; wildlife and
vegetation; cultural and historic resources; socioeconomics; geological
resources; soils; land use, recreation, and aesthetics; air quality and
environmental noise; traffic; and health. Identify any
disproportionately high and adverse impacts on environmental justice
communities.
(3) Discuss any cumulative impacts on environmental justice
communities, regarding resources affected by the project, including
whether any cumulative impacts would be disproportionately high and
adverse. Describe the proposed project's impacts in relation to the
aggregation of past, present, and reasonably foreseeable actions taken
by Federal or non-Federal entities, and the environmental justice
communities' capacity to tolerate additional impacts.
(4) Describe any proposed mitigation measures to avoid or minimize
impacts on environmental justice communities, including any community
input received on the proposed measures and how the input informed the
proposed measures.
(j) Resource Report 8--Geological resources. * * * Resource Report
8 must:
* * * * *
(3) Describe how the project will be located or designed to avoid
or minimize adverse effects to geological resources or risk to itself.
Describe any geotechnical investigations and monitoring that would be
conducted before, during, and after construction. Discuss the potential
for blasting to affect structures and the proposed measures to be taken
to remedy such effects.
* * * * *
(k) Resource Report 9--Soils. This report must describe the soils
that will be affected by the proposed project, the effect on those
soils, and measures proposed to minimize or avoid impacts. Resource
Report 9 must:
* * * * *
(2) Identify, by milepost, potential impacts from: soil erosion due
to water, wind, or loss of vegetation; soil compaction and damage to
soil structure resulting from movement of construction vehicles; wet
soils and soils with poor drainage that are especially prone to
structural damage; damage to drainage tile systems due to movement of
construction vehicles and trenching activities; and interference with
the operation of agricultural equipment due to the possibility of large
stones or blasted rock occurring on or near the surface as a result of
construction.
(3) Identify, by milepost, cropland and residential areas where
project construction may result in the loss of soil fertility,
including any land classified as prime or unique farmland by the U.S.
Department of Agriculture, Natural Resources Conservation Service.
(4) Describe any proposed mitigation measures to reduce the
potential for adverse impacts to soils or agricultural productivity.
(l) Resource Report 10--Land use, recreation, and aesthetics. This
report must describe the existing uses of land in the project vicinity
and changes to those land uses that will occur if the project is
approved. The report must discuss proposed mitigation measures,
including the protection and enhancement of existing land use. Resource
Report 10 must:
(1) Describe the width and acreage requirements of all construction
and permanent rights-of-way for project construction, operation and
maintenance.
(i) List, by milepost, locations where the proposed construction or
permanent rights-of-way would be adjacent to existing rights-of-way of
any kind.
(ii) Identify, preferably by diagrams, existing rights-of-way that
will be used for a portion of the construction or permanent rights-of-
way, the overlap and how much additional width will be required.
(iii) Identify the total amount of land to be purchased or leased
for each project facility; the amount of land that would be disturbed
for construction, operation, and maintenance of the facility; and the
proposed use of the remaining land not required for project operation
and maintenance, if any.
(iv) Identify the size of typical staging areas and expanded work
areas, such as those at railroad, road, and waterbody crossings, and
the size and location of all construction materials storage yards and
access roads.
[[Page 2790]]
(2) Identify, by milepost, the existing use of lands crossed by, or
adjacent to, the proposed project facilities or rights-of-way.
(3) Describe planned development on land crossed by, or within 0.25
mile of, the proposed facilities, the time frame (if available) for
such development, and proposed coordination to minimize impacts on land
use. Planned development means development that is included in a master
plan or is on file with the local planning board or the county.
(4) Identify, by milepost and length of crossing, the area of
direct effect of each proposed facility and operational site on sugar
maple stands; orchards and nurseries; landfills; operating mines;
hazardous waste sites; State wild and scenic rivers; State or local
designated trails; nature preserves; game management areas; remnant
prairie; old-growth forest; interior forest; national or State forests
or parks; golf courses; designated natural, recreational or scenic
areas; registered natural landmarks; Native American religious sites
and traditional cultural properties (to the extent they are known to
the public at large) and reservations; lands identified under the
Special Area Management Plan of the Office of Coastal Zone Management,
National Oceanic and Atmospheric Administration; and lands owned or
controlled by Federal or State agencies or private preservation groups.
Also identify if any of those areas are located within 0.25 mile of any
proposed facility.
(5) Identify and describe buildings, electronic installations,
airstrips, airports, and heliports in the project vicinity. The
facilities identified under this paragraph (l)(5) must be depicted on
the maps and photographs in Resource Report 1, as required by paragraph
(c)(2) of this section.
(i) Buildings: List all single-family and multi-family dwellings
and related structures, mobile homes, apartment buildings, commercial
structures, industrial structures, business structures, churches,
hospitals, nursing homes, schools, or other structures normally
inhabited by humans or intended to be inhabited by humans on a daily or
regular basis within a 0.5-mile-wide corridor centered on the proposed
transmission line alignment. Provide a general description of each
habitable structure and its distance from the centerline of the
proposed project. In cities, towns, or rural subdivisions, houses can
be identified in groups. Provide the number of habitable structures in
each group and list the distance from the centerline to the closest
habitable structure in the group. Provide a list of all habitable
structures within 200 feet of a proposed construction work area for all
proposed project facilities, including transmission line towers,
substations, access roads, and appurtenant facilities; a general
description of each habitable structure; and the distance of each
habitable structure from the proposed construction work area.
(ii) Electronic installations: List all commercial AM radio
transmitters located within 10,000 feet of the centerline of the
proposed project and all FM radio transmitters, microwave relay
stations, or other similar electronic installations located within
2,000 feet of the centerline of the proposed project. Provide a general
description of each installation and its distance from the centerline
of the proposed project.
(iii) Airstrips, Airports, and Heliports: List all known private
airstrips within 10,000 feet of the centerline of the project. List all
airports registered with the Federal Aviation Administration (FAA),
with at least one runway more than 3,200 feet in length, that are
located within 20,000 feet of the centerline of the proposed project.
Indicate whether any transmission structures will exceed a 100:1
horizontal slope (one foot in height for each 100 feet in distance)
from the closest point of the closest runway. List all airports
registered with the FAA having no runway more than 3,200 feet in length
that are located within 10,000 feet of the centerline of the proposed
project. Indicate whether any transmission structures will exceed a
50:1 horizontal slope from the closest point of the closest runway.
List all heliports located within 5,000 feet of the centerline of the
proposed project. Indicate whether any transmission structures will
exceed a 25:1 horizontal slope from the closest point of the closest
landing and takeoff area of the heliport. Provide a general description
of each private airstrip, registered airport, and registered heliport,
and state the distance of each from the centerline of the proposed
transmission line. Include copies of any consultation with the FAA.
(6) Describe any areas crossed by, or within 0.25 mile of, the
proposed transmission project facilities that are included in, or are
designated for study for inclusion in: the National Wild and Scenic
Rivers System (16 U.S.C. 1271), the National Trails System (16 U.S.C.
1241), or a wilderness area designated under the Wilderness Act (16
U.S.C. 1132).
(7) For facilities within a designated coastal zone management
area, provide a consistency determination or evidence that the
applicant has requested a consistency determination from the State's
coastal zone management program.
(8) Describe the impact the project will have on present uses of
the affected areas as identified above, including commercial uses,
mineral resources, recreational areas, public health and safety, and
the aesthetic value of the land and its features. Describe any
temporary or permanent restrictions on land use resulting from the
project.
(9) Describe proposed mitigation measures intended for all special
use areas identified under this section.
(10) Identify the area of potential visual effects from the
proposed project. Describe the visual characteristics of the lands and
waters affected by the project, including any visually sensitive areas,
visual classifications, and key viewpoints in the project vicinity.
Describe how the transmission line project facilities will impact the
visual character and scenic quality of the landscape and proposed
mitigation measures to lessen these impacts. Provide visual aids to
support the textual descriptions required by this paragraph.
(11) Demonstrate that applications for rights-of-way authorizations
or other proposed land uses have been, or soon will be, filed with
Federal land-management agencies with jurisdiction over land that would
be affected by the project.
(m) Resource Report 11--Air quality and environmental noise. This
report must estimate emissions from the proposed project and the
corresponding impacts on air quality and the environment, estimate the
impact of the proposed project on the noise environment, and describe
proposed measures to mitigate the impacts. Resource Report 11 must:
(1) Describe the existing air quality in the project area, indicate
if any project facilities are located within a designated nonattainment
or maintenance area under the Clean Air Act (42 U.S.C. 7401 et seq.),
and provide the distance from the project facilities to any Class I
area in the project vicinity.
(2) For proposed substations and appurtenant facilities,
quantitatively describe existing noise levels at nearby noise-sensitive
areas, such as schools, hospitals, or residences.
(i) Report existing noise levels as the Leq (day), Leq (night), and
Ldn and include the basis for the data or estimates.
(ii) Include a plot plan that identifies the locations and duration
of noise measurements, time of day, weather conditions, wind speed and
direction,
[[Page 2791]]
engine load, and other noise sources present during each measurement.
(iii) Identify any State or local noise regulations that may be
applicable to the project facilities.
(3) Estimate emissions from the proposed project and the
corresponding impacts on air quality and the environment.
(i) Estimate the reasonably foreseeable emissions from
construction, operation, and maintenance of the project facilities
(such as emissions from tailpipes, equipment, fugitive dust, open
burning, and substations) expressed in tons per year. Include
supporting calculations, emissions factors, fuel consumption rates, and
annual hours of operation.
(ii) For each designated nonattainment or maintenance area, provide
a comparison of the emissions from construction, operation, and
maintenance of the project facilities with the applicable General
Conformity thresholds (40 CFR part 93).
(iii) Identify the corresponding impacts on communities and the
environment in the project area from the estimated emissions.
(iv) Describe any proposed mitigation measures to control emissions
identified under this section.
(4) Estimate the impact of the proposed project on the noise
environment.
(i) Provide a quantitative estimate of the impact of transmission
line operation on noise levels at the edge of the proposed right-of-
way, including corona, insulator, and Aeolian noise. For proposed
substations and appurtenant facilities, provide a quantitative estimate
of the impact of operations on noise levels at nearby noise-sensitive
areas, including discrete tones.
(A) Include step-by-step supporting calculations or identify the
computer program used to model the noise levels, input and raw output
data and all assumptions made when running the model, far-field sound
level data for maximum facility operation, and source of the data.
(B) Include sound pressure levels for project facilities, dynamic
insertion loss for structures, and sound attenuation from the project
facilities to the edge of the right-of-way or to nearby noise-sensitive
areas (as applicable).
(C) Far-field sound level data measured from similar project
facilities in service elsewhere, when available, may be substituted for
manufacturer's far-field sound level data.
(D) The operational noise estimates must demonstrate that the
proposed project will comply with applicable State and local noise
regulations and that noise attributable to any proposed substation or
appurtenant facility does not exceed a day-night sound level (Ldn) of
55 dBA at any pre-existing noise-sensitive area.
(ii) Describe the impact of proposed construction activities,
including any nighttime construction, on the noise environment.
Estimate the impact of any horizontal directional drilling, pile
driving, or blasting on noise levels at nearby noise-sensitive areas
and include supporting assumptions and calculations.
(iii) Describe any proposed mitigation measures to reduce noise
impacts identified under this section.
(n) Resource Report 12--Alternatives. This report must describe
alternatives to the project and compare the environmental impacts (as
identified in Resource Reports 1 through 11 of this section) of such
alternatives to those of the proposal. * * * Resource Report 12 must:
* * * * *
(2) * * *
(i) * * * Where applicable, identify the location of such
alternatives on maps of sufficient scale to depict their relationship
to the proposed action and existing rights-of-way; and
(ii) * * * Provide comparative tables showing the differences in
environmental characteristics for the alternatives and proposed action.
* * *
(o) Resource Report 13--Reliability and safety. This report must
address the potential hazards to the public from failure of facility
components resulting from, among other things, accidents or natural
catastrophes; how these events would affect reliability; and proposed
procedures and design features to reduce potential hazards. Resource
Report 13 must:
(1) Discuss hazards, environmental impacts, and service
interruptions that could reasonably ensue from failure of the proposed
facilities.
(2) Describe proposed measures to protect the public from failure
of the proposed facilities (including coordination with local
agencies).
(3) Discuss proposed design and operational measures to avoid or
reduce risk, including any measures to ensure that the proposed project
facilities would be resilient against future climate change impacts in
the project area.
(4) Discuss proposed contingency plans for maintaining service or
reducing downtime to ensure that the proposed facilities would not
adversely affect the bulk electric system in accordance with applicable
North American Electric Reliability Corporation reliability standards.
(5) Describe proposed measures to exclude the public from hazardous
areas. * * *
* * * * *
(7) Discuss the potential for electrical noise from electric and
magnetic fields, including shadowing and reradiation, as they may
affect health or communication systems along the transmission right-of-
way.
* * * * *
(p) Resource Report 14--Design and engineering. * * * If the
version of this report submitted with the application is preliminary in
nature, the applicant must state that in the application. * * *
* * * * *
(2) * * * If a permit is granted on the basis of preliminary
designs, the applicant must submit final design drawings for written
approval by the Director of the Office of Energy Projects prior to
commencement of any construction of the project.
(3) * * *
(i) An assessment of the suitability of the locations of proposed
transmission line towers, substations, and appurtenant structures based
on geological and subsurface investigations, including investigations
of soils and rock borings and tests evaluating all foundations and
construction materials;
* * * * *
(iii) An identification of all borrow areas and quarry sites and an
estimate of required quantities of suitable construction material; and
* * * * *
(4) The applicant must submit the supporting design report
described in paragraph (p)(3) of this section at the time preliminary
and final design drawings are filed. If the report contains preliminary
drawings, it must be designated as a ``Preliminary Supporting Design
Report.''
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix
Draft Version: Landowner Bill of Rights in Federal Energy Regulatory
Commission Electric Transmission Proceedings
1. You have the right to receive compensation if your property
is necessary for the construction or modification of an authorized
project. The amount of such compensation would be determined through
a negotiated easement agreement between you and the entity applying
to the Federal Energy Regulatory Commission (Commission) for
authorization to construct a transmission line (applicant) or
through an eminent domain proceeding in the appropriate Federal or
State court. The applicant cannot seek to take a property by
[[Page 2792]]
eminent domain unless and until the Commission approves the
application, unless otherwise provided by State or local law.
2. You have the right to request the full name, title, contact
information including email address and phone number, and employer
of every representative of the applicant that contacts you about
your property.
3. You have the right to access information about the proposed
project through a variety of methods, including by accessing the
project website that the applicant must maintain and keep current,
by visiting a central location in your county designated by the
applicant for review of project documents, or by accessing the
Commission's eLibrary online document information system at
www.ferc.gov.
4. You have the right to participate, including by filing
comments and, after an application is filed, by intervening in any
open Commission proceedings regarding the proposed transmission
project in your area. Deadlines for making these filings may apply.
For more information about how to participate and any relevant
deadlines, contact the Commission's Office of Public Participation
by phone (202-502-6595) or by email ([email protected]).
5. When contacted by the applicant or a representative of the
applicant either in person, by phone, or in writing, you have the
right to communicate or not to communicate. You also have the right
to hire counsel to represent you in your dealings with the applicant
and to direct the applicant and its representatives to communicate
with you only through your counsel.
6. The applicant may seek to negotiate a written easement
agreement with you that would govern the applicant's and your rights
to access and use the property that is at issue and describe other
rights and responsibilities. You have the right to negotiate or to
decline to negotiate an easement agreement with the applicant;
however, if the Commission approves the proposed project and
negotiations fail or you chose not to engage in negotiations, there
is a possibility that your property could be taken through an
eminent domain proceeding, in which case the appropriate Federal or
State court would determine fair compensation.
7. You have the right to hire your own appraiser or other
professional to appraise the value of your property or to assist you
in any easement negotiations with the applicant or in an eminent
domain proceeding before a court.
8. Except as otherwise provided by State or local law, you have
the right to grant or deny access to your property by the applicant
or its representatives for preliminary survey work or environmental
assessments, and to limit any such grant in time and scope.
9. In addition to the above rights, you may have additional
rights under Federal, State, or local laws.
United States of America
Federal Energy Regulatory Commission
Applications for Permits to Site Interstate Electric Transmission
Facilities Docket No. RM22-7-000
(Issued December 15, 2022)
DANLY, Commissioner, concurring:
1. I concur with the issuance of this Notice of Proposed
Rulemaking (NOPR) because it is not my habit to oppose any but the
most infirm proposed rules. Today's issuance purports to be the
first step in discharging the Commission's obligations under
Infrastructure Investment and Jobs Act,\1\ which, among other
things, included amendments to certain provisions of section 216 of
the Federal Power Act \2\ (FPA) to clarify Federal ``backstop''
siting of electric transmission facilities in limited circumstances
when states fail to act on certain transmission proposals. The NOPR
itself, however, largely appears to be an exercise to extend various
environmental reviews typically seen in natural gas project
proceedings--a regime in which the majority of the Commission has
been imposing pervasive, standardless environmental tests well
beyond our statutory authority.
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\1\ Public Law 117-58, Sec. 40105, 135 Stat. 429.
\2\ 16 U.S.C. 824p (2018).
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2. I agree that our ``backstop'' siting authority is limited
under the Commission's governing statutes. I disagree that the
limited ``backstop'' siting authority that the Commission has been
granted also confers extensive powers as an environmental and social
regulator. Regardless, the statute certainly did not extend our
obligations beyond the requirements we have always observed in order
to discharge our duties under the National Environmental Policy Act
(NEPA).
3. In going far beyond that which is required by the
Infrastructure Investment and Jobs Act, this NOPR instead appears to
represent the majority's ``environmental justice'' wish list.
Accordingly, I specifically solicit citations to the provisions in
section 216, as amended--or any other statutory basis--to support
each revision proposed in the NOPR (such citations are often omitted
in the NOPR itself).\3\ Once statutory authority is certain,
commenters should further provide legal analysis and evidence
whether the proposed rule constitutes good policy, such as, for
example, whether it will be beneficial in determining whether to
site electric transmission projects when the states have not done
so, or whether the rule will tend to ensure almost nothing is ever
sited.
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\3\ As amended by the Infrastructure Investment and Jobs Act,
FPA section 216(a)(4)(G) provides that in determining whether to
designate a national interest electric transmission corridor the
Secretary of Energy ``may consider'' whether the designation
``avoids and minimizes, to the maximum extent practicable, and
offsets to the extent appropriate and practicable, sensitive
environmental areas and cultural heritage sites.'' 16 U.S.C.
824p(a)(4), 824p(a)(4)(G)(ii). As amended, FPA section 216(e)(1)
provides that a permit holder may acquire rights-of-way by the
exercise of eminent domain if, among other things, ``in the
determination of the Commission, the permit holder has made good
faith efforts to engage with landowners and other stakeholders early
in the applicable permitting process.'' Id. Sec. 824p(e)(1). It is
stretching these amendments to FPA section 216 beyond their breaking
point to use them to justify the scope of environmental review the
Commission now proposes in the NOPR.
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4. For example, we propose to ``require [electric transmission
project] applicants to develop and file an Environmental Justice
Public Engagement Plan as part of their Project Participation Plan
under Sec. 50.4(a)(4).'' \4\ The Commission does not cite any
statute that requires or even permits us to require this
Environmental Justice Public Engagement Plan, instead citing
Executive Orders, at least one of which the majority acknowledges
does not bind the Commission.\5\ The Commission further ``proposes
to define the term `environmental justice community' as any
disadvantaged community that has been historically marginalized and
overburdened by pollution, including, but not limited to, minority
populations, low-income populations, or indigenous peoples.'' \6\
What does it mean to be ``overburdened by pollution?'' Is this a
concept that the Commission--a Federal energy rate regulator--is
authorized and equipped to define or establish? Will the regulated
community of transmission developers have any idea how to comply
with such ambiguities? Is there anything about being
``overburdened'' in the Infrastructure Investment and Jobs Act?
---------------------------------------------------------------------------
\4\ Applications for Permits to Site Interstate Elec.
Transmission Facilities, 181 FERC ] 61,205 at P 31 (2022) (NOPR);
see also 18 CFR 50.4(a).
\5\ NOPR, 181 FERC ] 61,205 at PP 30, 65, n.72. The Commission
also proposes to require a new ``Environmental Justice Report'' as
part of its regulations implementing NEPA. See id. PP 65-67. Again,
I would like to know where the Commission gets this authority. We
also ``expect applicants to utilize the latest guidance and data
from [the Council on Environmental Quality], [the Environmental
Protection Agency], the Census Bureau, and other authoritative
sources.'' Id. P 67. Does the ``latest'' guidance and data include
anything issued after pre-filing but before permitting? What about
the day after permitting? What about during the pendency of a
rehearing request? And who or what are ``other authoritative
sources?''
\6\ Id. P 32 (emphasis added).
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5. The Commission also seeks to decree that the Environmental
Justice Public Engagement Plan must ``describe the manner in which
the applicant will reach out to environmental justice communities
about potential mitigation,'' \7\ or, in other words, include a
mitigation plan, even though ``NEPA not only does not require
agencies to discuss any particular mitigation plans that they might
put in place, it does not require agencies--or third parties--to
effect any.'' \8\ Commenters should tell us how the Commission can
impose such a requirement when the Supreme Court and the D.C.
Circuit have ruled otherwise.
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\7\ Id. P 31.
\8\ Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190,
206 (D.C. Cir. 1991) (citing Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 353 & n.16 (1989)).
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6. By way of further example, as part of its NEPA review, the
Commission proposes to require applicants to submit ``Resource
Report 10'' on ``Air quality and environmental noise.'' \9\
``Proposed Resource Report 10 would require the applicant to
estimate emissions from the proposed project . . . and describe
proposed measures to mitigate the impacts.'' \10\ ``Specifically,
the
[[Page 2793]]
applicant must provide the reasonably foreseeable emissions from
construction, operation, and maintenance of the project facilities .
. . and describe any proposed mitigation measures to control
emissions.'' \11\ Someone better propose some standards because
these proposals sound much more like aspirational goals than clear
rules that a developer could figure out how to comply with. What are
``foreseeable emissions'' from ``maintenance,'' for example? If a
transmission line falls in a storm, is a transmission developer
supposed to predict ``reasonably foreseeable'' emissions from the
truck the utility line worker uses to drive out to the site? If the
line worker uses a rechargeable ratchet to loosen a bolt, is the
transmission developer supposed to predict the ``reasonably
foreseeable'' emissions from electric generation required to
recharge the battery? And, again, by what authority do we propose to
require a mitigation plan over directly contrary judicial precedent?
\12\
---------------------------------------------------------------------------
\9\ NOPR, 181 FERC ] 61,205 at P 69.
\10\ Id.
\11\ Id. P 70.
\12\ See supra P 5 n.8.
---------------------------------------------------------------------------
7. As another example, the Commission proposes to ``add language
to Sec. 50.11(d) that would, under certain circumstances and for a
limited time, preclude the issuance of authorizations to proceed
with construction of transmission facilities authorized under FPA
section 216 while requests for rehearing of orders issuing permits
remain pending before the Commission.'' \13\ Though in a different
context and sounding in a different statute, the majority imposed a
similar policy, including the issuance of stays, for natural gas
projects, over my dissent.\14\ I solicit comment whether we have
this authority, and if so, whether it is sound policy to exercise it
as part of our limited ``backstop'' siting jurisdiction.
---------------------------------------------------------------------------
\13\ NOPR, 181 FERC ] 61,205 at P 47.
\14\ See Limiting Authorizations to Proceed with Constr.
Activities Pending Rehearing, Order No. 871-B, 175 FERC ] 61,098
(Danly, Comm'r, dissenting), order on reh'g, 176 FERC ] 61,062
(2021) (Danly, Comm'r, dissenting).
---------------------------------------------------------------------------
8. I have similar questions to those raised here about nearly
every aspect of the NOPR.\15\ The powers that Congress has granted
the Commission are narrow, as has been acknowledged, but they are
profound and, depending upon how the Commission implements those
authorities, can have a lasting effect on the development of the
transmission system. Accordingly, I invite comments from every
interested party on my questions and any other aspect of the
proposed rules so that the Commission will have a full record as it
considers whether to promulgate these or related rules.
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\15\ For example, I question whether we are complying with the
purpose of the act to engage in parallel activity with the states
during the pendency of the states' review of transmission project
proposals, a subject that Commissioner Christie has thoroughly
canvassed in his separate statement to this order.
---------------------------------------------------------------------------
9. It is hard to reconcile today's proposed rule, adorned as it
is by burdensome, unnecessary requirements, with what appears, at
the merest glance, to have been the purpose of Congress when passing
the Infrastructure Investment and Jobs Act--to facilitate, not
inhibit, the siting of transmission infrastructure.
For these reasons, I respectfully concur.
James P. Danly,
Commissioner.
United States of America
Federal Energy Regulatory Commission
Applications for Permits to Site Interstate Electric Transmission
Facilities Docket No. RM22-7-000
(Issued December 15, 2022)
CHRISTIE, Commissioner, concurring:
1. Updating the Commission's existing regulations and practices
governing the Commission's exercise of its transmission siting
backstop authority is required by a statutory change adopted last
year by Congress.\1\ While, of course, we must implement the change
made by Congress, a simple update to our existing regulation would
have been sufficient. This order,\2\ however, goes beyond merely
implementing the required conforming changes to our existing
regulation. So while I concur with putting these amendments out for
comment, I look forward to reviewing the comments on this proposal,
particularly from organizations representing State regulators.
---------------------------------------------------------------------------
\1\ The Infrastructure Investment and Jobs Act (IIJA), Public
Law 117-58, 40105, 135 Stat. 429 (2021), amended section 216 of the
Federal Power Act (FPA) in certain respects. Most notably, it
explicitly allows the Commission to grant transmission siting
authority even when a State has denied an application within one
year. 16 U.S.C. 824p(b)(1)(C) (as amended by IIJA section 1221).
\2\ Applications for Permits to Site Interstate Electric
Transmission Facilities, 181 FERC ] 61,205 (2022) (Backstop Siting
NOPR).
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2. Some relevant history: States have historically had sole
authority for permitting and siting transmission lines (two very
separate functions), and for good reasons. Every power line, from
the small ones below 100 kV to the huge 765 kV lines, visible for
many miles around, comes with its own unique set of facts and local
concerns. One of those concerns--let us not forget--is the cost, and
that cost will be paid, in some portion, by consumers in the situs
state, through FERC formula rates. So, whenever the day comes when
FERC orders a line built after a State has found it was not needed
or found the cost was not reasonable and prudent, FERC will not only
be choosing a route that was rejected by State regulators, but FERC
will be ordering the State's consumers to pay for the project, under
applicable cost allocation rules. And even if the proposed project
ends up being litigated for years before any steel is in the
ground--a virtual certainty for a controversial project that was
rejected by State regulators but imposed by FERC--consumers will
likely be paying through formula rates for years for pre-
construction costs, which can be substantial.\3\
---------------------------------------------------------------------------
\3\ For example, the Potomac-Appalachian Transmission Highline
(PATH) Project--which was abandoned, and never even completed--
spawned several years of litigation and imposed many millions of
dollars in costs (including return on equity) to ratepayers. See
Newman v. FERC, 27 F.4th 690 (D.C. Cir. 2022) (noting that PATH
sought recovery through rates of over $121 million in abandonment
costs alone, charges that were litigated over several years).
---------------------------------------------------------------------------
3. State regulators are much better prepared to deal with that
myriad of local concerns, including concerns over routing and costs,
than FERC. Furthermore, State processes are far more convenient and
user-friendly than processes at FERC, if for no other reason than
geographic proximity. So, waiting one full year to allow a State to
``go first'' and make its decision makes sense for a lot of reasons.
One obvious reason is that if the line is truly needed, the State
regulators will in all likelihood approve it, and no FERC staff time
and resources will need to be expended at all. The whole mantra that
goes ``the states are blocking needed transmission all over the
country!'' is simply a political and special-interest narrative. The
steadily mounting increases over the past decade in transmission
rate base nationally,\4\ with concomitant skyrocketing increases in
transmission costs to consumers, blows up the narrative that states
are systemically blocking needed transmission lines. Contrary to the
narrative, states need more authority to scrutinize transmission
projects for need and prudence of cost, not less, to protect
consumers.
---------------------------------------------------------------------------
\4\ See, e.g., RRA Regulatory Focus An Overview of Transmission
Ratemaking in the U.S.--2021 Update, S&P Global Market Intelligence,
Sept. 16, 2021 (``Growth in aggregate transmission rate base, 2012-
2020'' chart at page 3, showing increase from $57.8 billion to
$131.7 billion); see also Jim O'Reilly, PJM, AEP transcos drive
9.17% YOY [year-over-year] increase in US transmission rate base,
S&P Capital IQ Pro, November 1, 2022 (``Transmission rate base among
a group of 76 utilities in the U.S. maintained year-over-year growth
above 9% for the third consecutive year. . . .''.'') (emphasis
added).
---------------------------------------------------------------------------
4. This proposed regulation changes the practice this Commission
adopted in 2006 of holding off on all processes here for a year, to
one in which pre-filing processes will begin, potentially concurrent
with the initiation of State proceedings.\5\ That change is not
required by last year's congressional action. It is an act of
discretion.
---------------------------------------------------------------------------
\5\ Backstop Siting NOPR, 181 FERC ] 61,205 at PP 21-23.
---------------------------------------------------------------------------
5. Some more history: The Energy Policy Act of 2005 \6\ altered
the traditional arrangement of State authority by creating FPA
section 216, which provided this Commission with supplemental or
``backstop'' siting authority in certain narrow circumstances. This
authority was limited, not plenary: As discussed in greater detail
in the order, EPAct 2005 explicitly authorized the Commission to
exercise transmission siting authority in DOE-designated ``national-
interest'' transmission corridors when a State application had been
rendered futile because the State lacks authority to act, the
applicant lacks standing to obtain authority from the State, the
State attaches conditions rendering the project infeasible, or the
State fails to act within one year.\7\
---------------------------------------------------------------------------
\6\ Public Law 109-58, 1221, 119 Stat. 594 (2005) (amended 2021)
(EPAct 2005).
\7\ See Backstop Siting NOPR, 181 FERC ] 61,205 at PP 2-7.
---------------------------------------------------------------------------
6. In Order No. 689, the Commission implemented this new FPA
section 216 authority.\8\ In doing so, it construed that
[[Page 2794]]
authority expansively in two respects. First, it construed the
statute as vesting siting authority in the Commission even when a
State acts within a year to deny an application. Second, it
construed the statute as ``permit[ting] parallel Commission-State
processes.'' \9\ But these expansive constructions were promptly
curbed: the first, by the Fourth Circuit Court of Appeals; the
second, by the Commission itself.
---------------------------------------------------------------------------
\8\ Regulations for Filing Applications for Permits to Site
Interstate Electric Transmission Facilities, Order No. 689, FERC
Stats. & Regs. ] 31,234 (2006) (Order No. 689), reh'g denied, 119
FERC ] 61,154 (2007).
\9\ Id. P 20; see also id. P 19 (same). I won't opine on whether
this construction is correct or not--though seemingly reasonable, it
doesn't seem to be rooted in anything more than an inference from
the fact that the Commission may act if the State has failed to do
so within a year--but I will observe that it is not compelled by
citations to the statutory text or legislative history.
---------------------------------------------------------------------------
7. As for the first, the Fourth Circuit correctly found in
Piedmont that Congress had not, in fact, authorized the Commission
to grant an application that had been timely denied by a State.\10\
In direct response to the Fourth Circuit's opinion, last year
Congress expanded the Commission's FPA section 216 a notch further,
by empowering the Commission essentially to exercise a veto over a
State's timely decision to deny a transmission siting application.
In other words, in the IIJA, Congress sought to (and did) overturn
the key holding in Piedmont.
---------------------------------------------------------------------------
\10\ Piedmont Envtl. Council v. FERC, 558 F.3d 304 (4th Cir.
2009) (Piedmont), cert. denied, 558 U.S. 1147 (2010).
---------------------------------------------------------------------------
8. As for the second, the Commission wisely decided that ``that
States which have authority to approve the siting of facilities
should have one full year to consider a siting application without
there being any overlapping Commission process,'' and therefore
found that, ``in cases where our jurisdiction rests on FPA section
216(b)(1)(C), the pre-filing process should not commence until one
year after the relevant State applications have been filed.'' \11\
This policy was not set in stone, of course--the Commission noted
that it would ``reconsider the issue'' if in the future it turned
out ``that the lack of a Commission pre-filing process prior to the
end of the one year is delaying projects or otherwise not in the
public interest.'' \12\
---------------------------------------------------------------------------
\11\ Order No. 689, FERC Stats. & Regs. ] 31,234 at P 21
(footnote omitted).
\12\ Id.
---------------------------------------------------------------------------
9. This was sound policy in 2006, and I am not convinced that
the intervening years have taught us that ``the lack of a Commission
pre-filing process prior to the end of the one year is delaying
projects or otherwise not in the public interest.'' \13\ Nor did
Congress, in the IIJA, do anything to suggest that commencement of
the Commission's pre-filing process should be accelerated--although
of course it could have.
---------------------------------------------------------------------------
\13\ Id.
---------------------------------------------------------------------------
10. Nonetheless, I support this order, in its current form,
because I believe that the proposal to allow states a 90-day comment
period following a year of pre-filing processes may afford adequate
protection for the states and their processes, provided that the
Commission's pre-filing process does not begin before the relevant
State processes have been commenced. This order actually invites
comment on whether FERC's pre-filing processes should be allowed to
commence prior to the initiation of State proceedings.\14\ I would
not even have raised that prospect. I ask states in particular to
review closely and comment on these provisions. There are also other
examples of this order going beyond where it needed to go.\15\
---------------------------------------------------------------------------
\14\ Backstop Siting NOPR, 181 FERC ] 61,205 at P 23.
\15\ For example, the order proposes a new regulatory definition
of ``environmental justice community.'' Id. P 32. This concept has
been in flux since it was created and it continues to evolve;
nothing in the IIJA's amendments to FPA section 216 either
explicitly or implicitly requires the Commission to adopt any such
definition at all herein.
---------------------------------------------------------------------------
11. To be clear, I have no concern with informal communications
between applicants and Commission staff before the states have had a
year to act. Nor do I have any concern with allowing an initial
consultation or other preparatory work during this one-year period.
But as discussed above, I believe strongly that the states should
have an opportunity to complete their processes without any
impediment or distraction from Commission proceedings.
12. I support revising the Commission's Regulations to reflect
the modest expansion of its authority worked on FPA section 216 by
the IIJA, and I am inclined to believe that the 90-day comment
period afforded to states at the close of a year's worth of pre-
filing may adequately protect a State's interests. To that extent, I
support putting this order out for comment and I look forward to the
comments the Commission will receive.
For these reasons, I concur.
Mark C. Christie,
Commissioner.
[FR Doc. 2022-27716 Filed 1-13-23; 8:45 am]
BILLING CODE 6717-01-P
