Applications for Permits To Site Interstate Electric Transmission Facilities, 46682-46740 [2024-10879]
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Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules and Regulations
Final rule.
DEPARTMENT OF ENERGY
ACTION:
Federal Energy Regulatory
Commission
SUMMARY:
18 CFR Parts 50 and 380
[Docket No. RM22–7–000; Order No. 1977]
Applications for Permits To Site
Interstate Electric Transmission
Facilities
The Federal Energy
Regulatory Commission amends its
regulations governing applications for
permits to site electric transmission
facilities under the Federal Power Act,
as amended by the Infrastructure
Investment and Jobs Act of 2021, and
amends its National Environmental
Policy Act procedures.
DATES:
Federal Energy Regulatory
Commission.
AGENCY:
This rule is effective July 29,
Maggie Suter (Technical Information),
Office of Energy Projects, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, (202) 502–6344,
magdalene.suter@ferc.gov
Tara DiJohn Bruce (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, (202) 502–8671, tara.bruce@
ferc.gov.
2024.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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 ........................................................................................................................................
E. Notice of Proposed Rulemaking ...................................................................................................................................................
II. Discussion ............................................................................................................................................................................................
A. Commission Jurisdiction and State Siting Proceedings .............................................................................................................
1. IIJA Amendments and Commission Jurisdiction Under FPA Section 216(b)(1) ...............................................................
2. Commencement of Pre-Filing ................................................................................................................................................
B. Eminent Domain Authority and Applicant Efforts To Engage With Landowners and Other Stakeholders ...........................
1. NOPR Proposal .......................................................................................................................................................................
2. Comments ...............................................................................................................................................................................
3. Commission Determination ...................................................................................................................................................
C. Environmental Justice Public Engagement Plan .........................................................................................................................
1. NOPR Proposal .......................................................................................................................................................................
2. Comments ...............................................................................................................................................................................
3. Commission Determination ...................................................................................................................................................
D. 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. Clarifying Revisions to 18 CFR Part 50 ................................................................................................................................
E. Additional Considerations Raised by Commenters ....................................................................................................................
1. Grid-Enhancing Technologies ...............................................................................................................................................
2. Use of Existing Rights-of-Way ...............................................................................................................................................
3. Project Costs ...........................................................................................................................................................................
4. Miscellaneous .........................................................................................................................................................................
F. Regulations Implementing NEPA .................................................................................................................................................
1. Consultation With CEQ .........................................................................................................................................................
2. DOE Coordination ..................................................................................................................................................................
3. NEPA Document Procedures .................................................................................................................................................
4. Revisions to 18 CFR 380.16 ..................................................................................................................................................
5. Revisions to 18 CFR 380.13 and 380.14 ...............................................................................................................................
III. Information Collection Statement ......................................................................................................................................................
IV. Environmental Analysis .....................................................................................................................................................................
V. Regulatory Flexibility Act ...................................................................................................................................................................
VI. Document Availability .......................................................................................................................................................................
VII. Effective Date and Congressional Notification ................................................................................................................................
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),2 which
provides for Federal siting of electric
1 Public Law 117–58, sec. 40105, 135 Stat. 429
(2021).
2 16 U.S.C. 824p.
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transmission facilities under certain
circumstances. The Federal Energy
Regulatory Commission (Commission) is
amending 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
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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
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2. The authority to site electric
transmission facilities has traditionally
resided solely with the States; however,
the enactment of the Energy Policy Act
of 2005 (EPAct 2005) 3 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 authorizes
DOE to designate certain transmissionconstrained 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; 4
(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; 5
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.6
3 Public Law 109–58, sec. 1221, 119 Stat. 594
(Aug. 8, 2005) (amended 2021).
4 16 U.S.C. 824p(b)(1)(A) (prior to the IIJA
amendment in 2021). Instances in this rule citing
the statute prior to the IIJA amendment in 2021 are
noted by a parenthetical for clarity.
5 Id. 824p(b)(1)(B).
6 Id. 824p(b)(1)(C) (prior to the IIJA amendment in
2021).
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4. In addition, sections 216(b)(2)
through (6) required the Commission,
before issuing a permit, 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.7
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).8 Federal
and State-owned land was expressly
excluded from the purview of section
216(e) and thus could not be acquired
via eminent domain.9
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 was required to establish prompt
and binding intermediate milestones
and ultimate deadlines for all Federal
reviews and authorizations required for
a proposed electric transmission
facility.10 Under section 216(h)(5)(A),
DOE, as lead agency, was required to
prepare a single environmental review
document, in consultation with other
affected agencies, 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),
(4)(A)–(B), and (5).11 Specifically, the
Secretary delegated DOE’s lead agency
responsibilities to the Commission for
the purposes of coordinating all
7 Id.
8 Id.
824p(b)(2)–(6).
824p(e)(1) (prior to the IIJA amendment in
2021).
9 Id.
10 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.
16 U.S.C. 824p(h)(6)(A).
11 See DOE Delegation Order No. S1–DEL–FERC–
2006 (previously DOE Delegation Order No. 00–
004.00A).
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applicable Federal authorizations and
related environmental reviews and
preparing a single environmental review
document for proposed facilities under
the Commission’s siting jurisdiction.12
8. In August 2006, DOE issued a
Congestion Study pursuant to section
216(a), which identified two critically
congested areas in the Mid-Atlantic and
Southern California.13 Based on the
results of the Congestion Study, in
October 2007, DOE formally designated
two National Corridors, the MidAtlantic Corridor and the Southwest
Area Corridor.14
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.15 In addition, Order No.
689 adopted modifications to the
Commission’s regulations implementing
the National Environmental Policy Act
of 1969 (NEPA) 16 in part 380 of the
Commission’s regulations 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
12 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.
13 DOE, National Electric Transmission
Congestion Study, 71 FR 45047 (Aug. 8, 2006).
14 DOE, National Electric Transmission
Congestion Report, 72 FR 56992 (Oct. 5, 2007).
15 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), reh’g denied, 119 FERC
¶ 61,154 (2007).
16 42 U.S.C. 4321 et seq. See also 18 CFR pt. 380
(2023) (Commission’s regulations implementing
NEPA).
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application for more than one year.17
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.18
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,19 held that the Commission’s
interpretation of ‘‘withheld approval’’
was contrary to the plain meaning of the
statute, and that the Commission’s siting
authority does not apply when a State
has affirmatively denied a permit
application within the one-year
deadline.20 In addition, the Fourth
Circuit vacated the Commission’s
transmission-related amendments to its
NEPA regulations, finding that the
Commission had failed to consult with
the Council on Environmental Quality
(CEQ) before adopting the revisions.21
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
216.22 The Ninth Circuit vacated DOE’s
August 2006 Congestion Study and
October 2007 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.23
13. Since the Fourth Circuit and
Ninth Circuit decisions, 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. With
respect to DOE’s authority, the IIJA
amended section 216(a)(2) to expand the
circumstances in which DOE may
designate a National Corridor. In
addition to geographic areas currently
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17 Order
No. 689, 117 FERC ¶ 61,202 at PP 24–31,
reh’g denied, 119 FERC ¶ 61,154 at PP 7–23.
18 Order No. 689, 117 FERC ¶ 61,202 at P 26, reh’g
denied, 119 FERC ¶ 61,154 at P 11.
19 558 F.3d 304 (4th Cir. 2009), cert. denied, 558
U.S. 1147 (2010) (Piedmont).
20 Id. at 313.
21 Id. at 319, 320.
22 631 F.3d 1072 (9th Cir. 2011).
23 Id. at 1096, 1106.
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experiencing transmission capacity
constraints or congestion that adversely
affects consumers, amended section
216(a)(2) provides that 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.24
15. With respect to the Commission’s
siting 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 siting
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 a siting 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.25 This statutory
amendment resolves the jurisdictional
issue at the heart of Piedmont by
explicitly giving the Commission siting
authority when a State has denied an
application.26
16. Additionally, the IIJA amended
section 216(e), which grants a permit
holder the right to acquire the necessary
right-of-way by eminent domain.27 As
amended, section 216(e)(1) requires the
Commission to determine, as a
24 DOE may consider the following factors when
determining whether to designate a National
Corridor under section 216(a)(4): (1) the economic
vitality and development of the corridor, or the end
markets served by the corridor, may be constrained
by lack of adequate or reasonably priced electricity;
(2) economic growth in the corridor, or the end
markets served by the corridor, may be jeopardized
by reliance on limited sources of energy and a
diversification of supply is warranted; (3) the
energy independence or energy security of the
United States would be served by the designation;
(4) the designation would be in the interest of
national energy policy; (5) the designation would
enhance national defense and homeland security;
(6) the designation would enhance the ability of
facilities that generate or transmit firm or
intermittent energy to connect to the electric grid;
(7) the designation maximizes existing rights-of-way
and avoids and minimizes, to the maximum extent
practicable, and offsets to the extent appropriate
and practicable, sensitive environmental areas and
cultural heritage sites; and (8) the designation
would result in a reduction in the cost to purchase
electric energy for consumers.
25 16 U.S.C. 824p(b)(1)(C).
26 Id. 824p(b)(1)(C)(iii).
27 Id. 824p(e)(1).
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precondition to a permit holder
exercising such eminent domain
authority, that the permit holder has
made good faith efforts to engage with
landowners and other stakeholders early
in the applicable permitting process.28
E. Notice of Proposed Rulemaking
17. On December 15, 2022, the
Commission issued a Notice of
Proposed Rulemaking (NOPR), which
proposed revisions to its regulations in
parts 50 and 380 governing applications
for permits to site electric transmission
facilities.29 Among other revisions, the
Commission proposed changes to
address the IIJA’s amendments to
section 216 of the FPA.
18. First, the Commission proposed
revisions to make clear that the
Commission has the authority to issue
permits for the construction or
modification of electric transmission
facilities in a National Corridor if a State
has denied a siting application.30
19. Second, the Commission
announced a proposed policy change
that would allow an applicant that is
subject to a State siting authority to seek
to commence the Commission’s prefiling process once the relevant State
siting applications have been filed.31
The Commission explained that this
change, if adopted, would eliminate the
Commission’s prior policy of waiting
one year after the relevant State siting
applications have been filed before
allowing an applicant to seek to
commence the Commission’s pre-filing
process. The Commission further
proposed that, one year after the
commencement of the Commission’s
pre-filing process, if a State has not
made a determination on an application
before it, the State will have 90 days to
provide comments to the Commission
on any aspect of the pre-filing process,
including any information submitted by
the applicant.32
20. Third, the Commission proposed
to codify an Applicant Code of
Conduct.33 The Commission explained
that compliance with the Applicant
Code of Conduct is one way an
applicant may demonstrate that it has
made good faith efforts to engage with
landowners and other stakeholders early
28 Id.
29 Applications for Permits to Site Interstate Elec.
Transmission Facilities, 88 FR 2770 (Jan. 17, 2023),
181 FERC ¶ 61,205 (2022) (NOPR), errata notice,
182 FERC ¶ 61,020 (2023). The Commission’s errata
notice for the NOPR, issued on January 17, 2023,
reflected certain stylistic revisions requested by the
Federal Register as well as minor, non-substantive
editorial revisions.
30 Id. P 18.
31 Id. PP 20–21.
32 Id. P 23.
33 Id. PP 26–27.
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in the applicable permitting process as
required by section 216(e)(1) of the FPA
as a predicate to the use of eminent
domain.34 The Commission also
proposed that an applicant may choose
an alternative method of demonstrating
that it meets the ‘‘good faith efforts’’
standard, so long as it explains how its
alternative method is equal to or better
than compliance with the Applicant
Code of Conduct as a means of ensuring
that the statutory standard is met.
21. Fourth, the Commission proposed
to add a requirement that applicants
develop and file an Environmental
Justice Public Engagement Plan as part
of their Project Participation Plan,
which is already required early in the
pre-filing process.35 The Commission
explained that an Environmental Justice
Public Engagement Plan must describe
the applicant’s completed outreach to
environmental justice communities,
summarize comments from potentially
impacted communities, describe
planned outreach, and describe how the
applicant will reach out to
environmental justice communities
about potential mitigation.36
22. Finally, the Commission proposed
updates to the environmental
information that an application must
include. In addition to a variety of
proposed updates, clarifications, and
corrections to existing resource reports,
the Commission proposed to require an
applicant to provide information
regarding a proposed project’s impacts
on Tribal resources, environmental
justice communities, and air quality and
environmental noise in three new
resource reports.37
23. Comments on the NOPR were due
by April 17, 2023. In response to a
motion filed by the National Association
of Regulatory Utility Commissioners
(NARUC), the Commission extended the
comment deadline to May 17, 2023.
24. In response to the NOPR, 52
comments were filed.38 These
comments have informed our
determinations in this final rule.
25. Additionally, on February 28,
2024, the Joint Federal-State Task Force
on Electric Transmission (Task Force) 39
34 Id.
P 28.
PP 30–31; 18 CFR 50.4(a) (requiring Project
Participation Plan).
36 Id. P 31.
37 Id. PP 63–71.
38 Appendix B lists the entities that submitted
comments on the NOPR and the abbreviated names
used throughout this final rule to describe those
entities.
39 Joint Fed.-State Task Force on Elec.
Transmission, 175 FERC ¶ 61,224 (2021)
(establishing Task Force pursuant to FPA section
209(b)).
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35 Id.
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met to discuss transmission siting.40
The discussion included topics such as
how State and Federal siting reviews
should be sequenced and coordinated,
what factors the Commission should
consider in its siting proceedings under
section 216(b), and how the
Commission’s siting process will
interface with transmission planning
and cost allocation requirements.
II. Discussion
A. Commission Jurisdiction and State
Siting Proceedings
26. As discussed above, section
216(b)(1) of the FPA, as revised by the
IIJA, provides the circumstances that
trigger the Commission’s jurisdiction.
As discussed further below, in this final
rule, the Commission revises § 50.6 of
its regulations to reflect the IIJA’s
amendments to section 216(b)(1). The
Commission also declines to adopt the
policy change proposed in the NOPR
with respect to when the Commission’s
pre-filing process may commence.
1. IIJA Amendments and Commission
Jurisdiction Under FPA Section
216(b)(1)
a. NOPR Proposal
27. Section 50.6 of the Commission’s
regulations describes the information
that is required in each application filed
pursuant to the part 50 regulations.
Section 50.6(e) provides that each
application must provide evidence
demonstrating that one of the bases for
the Commission’s jurisdiction 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, in the NOPR the
Commission proposed 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.41
40 Joint
Fed.-State Task Force on Elec.
Transmission, Notice of Meeting and Agenda,
Docket No. AD21–15–000 (Feb. 13, 2024). The
transcript of this meeting can be found in Docket
No. AD21–15–000. For context, the Commission
established the Task Force in June 2021 to formally
explore transmission-related topics such as
generator interconnection, grid enhancing
technologies, physical security, and regulatory gaps
or challenges in oversight. The Task Force was
composed of all FERC Commissioners as well as
representatives from 10 State commissions
nominated by NARUC, with two originating from
each NARUC region. The Task Force convened for
multiple formal meetings annually, which were
open to the public.
41 NOPR, 181 FERC ¶ 61,205 at P 43. While the
statute, as amended by the IIJA, does not define the
term ‘‘interregional,’’ the Commission proposed to
apply a meaning that is consistent with Order No.
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46685
28. As discussed above, the IIJA also
amended FPA section 216(b)(1)(C) 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 application to site such
transmission facilities.42 To reflect this
amendment, in the NOPR the
Commission proposed 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.43
b. Comments
29. Several commenters ask the
Commission to clarify its jurisdiction
under section 216(b)(1) of the FPA.
ACEG seeks confirmation that the
Commission’s regulations will apply in
instances where a State does not have
authority to approve the siting of
facilities or consider a project’s
expected interstate or interregional
benefits, or when an applicant does not
qualify for a State permit or siting
approval because the applicant does not
serve end-use customers in that State.44
ACEG also urges the Commission to
‘‘expand upon the meaning of a State
‘lacking authority’ to approve the
proposed facilities.’’ 45
30. Commenters ask the Commission
to clarify whether specific
circumstances would trigger the
Commission’s siting authority under
FPA section 216(b)(1)(C), including
when a local government entity with
siting authority, such as a county zoning
board, has failed to act on, conditionally
approved, or denied a permit; 46 when a
State has not acted within a year but no
1000, which defines an interregional transmission
facility as one that is located in two or more
transmission planning regions. Id. (citing
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)).
42 See supra P 15.
43 NOPR, 181 FERC ¶ 61,205 at P 18.
44 ACEG Comments at 4–5 (citing 16 U.S.C.
824p(b)(1)(A)–(B)).
45 Id. at 7.
46 See ACEG Comments at 6; SEIA Comments at
7; Rail Electrification Council Comments at 13. Rail
Electrification Council also asks whether a State
transportation authority that owns or controls a
railroad right-of-way that is integral to a proposed
transmission project would qualify as a ‘‘State
commission or other entity’’ under FPA section
216(b)(1)(C)). Rail Electrification Council Comments
at 13.
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National Corridor has been
designated; 47 and when a multistate
project is approved by one or more
relevant States but denied by another.48
To clarify when the Commission’s
authority under section 216(b)(1) would
apply, ACEG recommends that the
Commission add an applicability
section to its regulations.49
31. Commenters also request
clarification on the Commission’s
authority to act under section
216(b)(1)(C)(ii) if it determines that a
State commission or other entity with
siting authority has conditioned its
approval in such a manner that the
proposed facilities will not significantly
reduce transmission capacity
constraints or congestion in interstate
commerce or is not economically
feasible. Several commenters urge the
Commission to opine on what it would
consider a significant reduction in
transmission capacity constraints or
congestion and how any such threshold
would be quantified.50 Maryland
Commission observes that the statutory
phrase ‘‘not economically feasible’’ is
broad and undefined and that State
conditions that simply impose an
economic burden on an applicant
should not be deemed sufficient to
trigger the Commission’s siting
jurisdiction.51 Rather, Maryland
Commission states that the Commission
should only consider asserting its siting
authority when confronted by State
conditions that are not supported by the
record, are contrary to law, or are
substantially outweighed by the
project’s regional benefits and would
jeopardize the existence of the project if
included.52
32. Some commenters urge the
Commission either to defer to State
siting decisions or to refrain from
prematurely exercising its jurisdiction
under section 216(b)(1)(C). New Jersey
Board states that the Commission
should refrain from exercising its
section 216 authority and allow a State
to reach its own determination, so long
as the State has acted in good faith and
there is no evidence that it is attempting
to delay the process.53 New Jersey Board
suggests that the Commission’s final
rule recognize good cause for an
application to remain in the State’s
purview.54 New York Commission
47 ACEG
Comments at 7.
Landowners Comments at 25.
49 ACEG Comments at 7.
50 See Michigan Commission Comments at 11;
New York Commission Comments at 6–1; OMS
Comments at 5–6.
51 Maryland Commission Comments at 25.
52 Id.
53 New Jersey Board Comments at 6.
54 Id.
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states that the Commission should defer
to State siting determinations that deny
an application because a project is
incompatible with public health, safety,
and the environment.55 Noting that the
ability to approve or deny transmission
siting applications is within States’
general police powers, New York
Commission argues that the NOPR is too
broad, does not respect State siting
authority, and is an overreach of the
Commission’s jurisdiction.56 For these
reasons, New York Commission urges
the Commission to identify a limited set
of specific circumstances that would
trigger the Commission’s jurisdiction if
State denial of a permit is unreasonable
or inappropriate.57
c. Commission Determination
33. We adopt the NOPR proposal’s
revisions to § 50.6(e), which clarifies the
evidence an applicant must provide to
demonstrate that one of the
jurisdictional bases set forth in section
216(b)(1) applies to the proposed
facilities, including the addition in
§ 50.6(e)(1) of the phrase ‘‘interregional
benefits’’ to clarify that an applicant
may provide evidence that a State does
not have authority to consider the
interregional benefits expected to be
achieved by the proposed project. We
decline to impose additional
requirements for the Commission to
assert its jurisdiction beyond those
required by the statute. We disagree
with commenters that, by revising the
Commission’s regulations to reflect the
IIJA’s amendments to section
216(b)(1)(C), the Commission does not
respect State siting authority, exceeds
its statutory authority, or coopts or
preempts State processes.
34. As stated previously in Order No.
689, mere consideration of an
application by the Commission does not
equate to a jurisdictional determination
or Commission approval of the
proposed project.58 Once the
Commission notices an application in
accordance with § 50.9, anyone who
questions the Commission’s jurisdiction
over the proposed project, the timing of
the exercise of that jurisdiction, or the
merits of the proposal can raise those
matters with the Commission by filing
comments, an intervention, or a protest
in the proceeding. The Commission will
make a jurisdictional determination and
address comments and protests in an
order addressing the proposed project.
35. Section 50.6(e)(1) of the
Commission’s regulations tracks the
55 New
York Commission Comments at 7–9.
at 8–9.
57 Id. at 9.
58 Order No. 689, 117 FERC ¶ 61,202 at P 32.
56 Id.
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statutory language that triggers the
Commission’s jurisdiction under FPA
section 216(b)(1)(A). Thus, in response
to ACEG’s clarification request, we
confirm that the Commission’s
regulations would apply in instances
where a State does not have authority to
approve the siting of facilities or
consider a project’s expected interstate
or interregional benefits, and when an
applicant does not qualify for a State
permit or siting approval because the
applicant does not serve end-use
customers in that State. We decline
ACEG’s invitation to expand on the
meaning of a State ‘‘lacking authority’’
to approve proposed facilities,59 as such
findings will be State-specific and,
perhaps, project-specific and will be
considered by the Commission on a
case-by-case basis.
36. We also do not find it necessary
to further define the scope of
circumstances that might trigger the
Commission’s siting authority under
section 216(b)(1). We note that § 50.6(e)
of the Commission’s the regulations
require an applicant to demonstrate that
the relevant statutory requirements have
been met. The Commission will make
such determinations case-by-case, based
upon the record in a given proceeding.
For this reason, we decline commenters’
requests to clarify the applicability of
FPA section 216(b)(1) to particular,
factual circumstances that are, at this
point, hypothetical.
37. We likewise decline commenters’
calls to expound on when a State
approval would be conditioned in a
manner that meets the statutory
threshold under FPA section
216(b)(1)(C)(ii). The Commission
addressed similar comments in Order
No. 689.60 As the Commission stated
then, these issues cannot be resolved
adequately on a generic basis.
Consistent with the Commission’s prior
approach, we decline to outline
potential conditions a State might
impose that would invoke the
Commission’s jurisdiction under FPA
section 216(b)(1).
2. Commencement of Pre-Filing
38. 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.61 As the
59 ACEG Comments at 7. While ACEG does not
cite a particular statutory provision, we presume
that ACEG’s comment is in reference to FPA section
216(b)(1)(A)(i), which provides that the
Commission may issue a permit if it finds that a
State in which the transmission facilities are to be
located does not have authority to approve the
siting of the facilities.
60 Order No. 689, 117 FERC ¶ 61,202 at P 34.
61 Id. P 19.
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Commission explained in Order No.
689, the statute 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 preapplication mechanism for all permit
decisions under Federal law.62 Thus,
the Commission has recognized that the
pre-filing process can occur at the same
time as State proceedings.63
39. Notwithstanding that the statute
allows simultaneous State and Federal
proceedings, the Commission in Order
No. 689 announced a policy that, in
cases where its jurisdiction rests on
section 216(b)(1)(C),64 the pre-filing
process would not commence until one
year after the relevant State applications
have been filed.65 This approach, the
Commission explained, would provide
the States one full year to process an
application without any overlapping
Commission processes, after which time
an applicant might seek to commence
the Commission’s pre-filing process.66
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 was otherwise not
in the public interest.67
a. NOPR Proposal
40. In the NOPR, the Commission
proposed to eliminate the one-year
delay before the Commission’s pre-filing
process may commence, thus allowing
simultaneous processing of State
applications and Commission pre-filing
proceedings (referred to herein as
simultaneous processing).68 The
Commission proposed to entertain
requests to commence pre-filing, and
potentially grant such requests, at any
time after the relevant State applications
have been filed. Additionally, the
Commission proposed to provide an
opportunity for State input before the
Commission would announce the
completion of the pre-filing process and
allow an application to be filed.69
Specifically, one year after the
commencement of the Commission’s
pre-filing process, if a State has not
made a determination on an application,
the Commission proposed to provide a
90-day window for the State to submit
62 Id.
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63 Id.
64 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.
65 Id. P 21.
66 Id.
67 Id.
68 NOPR, 181 FERC ¶ 61,205 at PP19–23.
69 Id. P 23.
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comments on any aspect of the prefiling process, including any
information submitted by the applicant.
The NOPR also sought 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. Comments
41. Numerous commenters express
support for the NOPR proposal.70 A
number of commenters agree that
simultaneous processing would enhance
efficiency by streamlining processes and
allowing decision-making entities to use
pre-existing data to make
determinations.71 For instance, Los
Angeles DWP believes that
simultaneous processing would enable
early engagement and coordination
between State and Federal regulators,
thereby increasing certainty in permit
application outcomes, reducing time
and costs of environmental reviews, and
better aligning projects with State and
Federal policy goals.72 Sabin Center
concurs that removing the one-year
delay will improve efficiency and
ensure more timely decision-making by
the Commission by streamlining
information collection.73
42. Several commenters assert that the
NOPR’s simultaneous processing
proposal affords sufficient deference to
States’ decision-making involving landuse and permitting decisions.74 ACEG
states that the Commission’s proposed
approach toward simultaneous
processing strikes the correct balance
between promoting efficiency and
respecting States’ primacy in the
process.75
43. Some commenters agree that
simultaneous processing is consistent
with the Commission’s statutory
authority under FPA section 216 and
70 Advanced Energy United Comments at 8–9;
American Chemistry Council Comments at 5; ACP
Comments at 2–7; ACORE Comments at 2–3; ACEG
Comments at 5–6, 8–9; CATF Comments at 3–7;
Clean Energy Buyers Comments at 6–7; ClearPath
Comments at 2; CLF Comments at 2,4; ELCON
Comments at 1,3; EDF Comments at 10–11; Los
Angeles DWP Comments at 2; Michigan
Commission Comments at 4; New Jersey Board
Comments at 5; Niskanen Comments at 5–7; Public
Interest Organizations Comments at 10–15; Sabin
Center Comments at 2–3; SEIA Comments at 2–7;
Chickahominy Indian Tribe, Nansemond Indian
Nation, Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe Comments at 3.
71 Los Angeles DWP Comments at 2; Michigan
Commission Comments at 4; New Jersey Board
Comments at 5.
72 Los Angeles DWP Comments at 3.
73 Sabin Center Comments at 3.
74 See, e.g., SEIA Comments at 5–7; EDF
Comments at 11.
75 ACEG Comments at 5–6.
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Congress’s intent.76 Advanced Energy
United states that the IIJA’s
amendments to FPA section 216 were
meant to expedite the permitting
process and that simultaneous
processing would meet that goal.77
44. Some commenters contend that
the NOPR’s simultaneous processing
proposal would enhance stakeholder
participation and communication in
both State and Federal transmission
siting proceedings.78 ACP states that
conducting concurrent review allows
the Commission to hear from
stakeholders early in the Federal siting
process—and potentially in tandem
with States.79 Niskanen also supports
simultaneous processing because it
believes that the Commission’s
implementation of the statute’s ‘‘good
faith’’ standard for engaging with
landowners and other stakeholders from
the beginning of the process will
standardize practices across the States
and decrease the ability of applicants to
exhibit bad faith when dealing with
only the State commission.80
45. Several commenters that
otherwise support the NOPR’s
simultaneous processing proposal
explicitly oppose the Commission’s prefiling process commencing prior to the
commencement of the State’s permitting
process or a State application being
filed.81 Several commenters that
support simultaneous processing also
urge the Commission to take steps to
limit stakeholder confusion, for
instance, by requiring applicants to
specify when they will file their
applications with States.82 The
Chickahominy Indian Tribe,
Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe are supportive
of simultaneous processing, but warn
that the Commission must ensure
meaningful stakeholder participation
during the pre-filing process.83
46. Many commenters oppose the
NOPR proposal to allow the
Commission’s pre-filing process to
commence at any time after the relevant
State siting applications have been filed
76 See, e.g., ClearPath Comments at 2; see also
Clean Energy Buyers Comments at 5; Public Interest
Organizations Comments at 11–12 (interpreting
Congress’s silence as an implicit grant of authority).
77 See, e.g., ACP Comments at 8; see also
Advanced Energy United Comments at 7.
78 Los Angeles DWP Comments at 2
79 ACP Comments at 5.
80 Niskanen Comments at 7.
81 ACORE Comments at 3; Yurok Tribe Comments
at 24; Clean Energy Buyers Comments at 7.
82 See California Commission Comments at 6;
EDF Comments at 11.
83 Chickahominy Indian Tribe, Nansemond
Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe Comments at 3.
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but before a State decision is made.84
Several commenters urge the
Commission to retain the existing policy
adopted in Order No. 689, where the
pre-filing process could not commence
until one year after the relevant State
applications have been filed.85 Some
commenters argue that the
Commission’s pre-filing process should
not begin until after the relevant State
authority determines that a State
application is complete 86 or after the
relevant State authority’s finishes its
adjudication.87 Georgia Commission is
concerned that simultaneous processing
would contradict current State statutes
and regulations guiding transmission
planning, which in Georgia occurs at
least every three years.88
47. Several commenters argue that
simultaneous processing would not
adequately respect the States’ primacy
and would impinge on State
jurisdiction.89 Joint Consumer
Advocates caution that the Commission,
in implementing its section 216
authority, must ensure State processes
are not coopted or preempted, and they
assert that the Federal process should be
a backstop, rather than an alternative, to
the State process.90 Georgia and Texas
Commissions express concerns that the
NOPR’s proposed simultaneous
processing will encroach on their
existing permitting schemes.91 Some
commenters argue that simultaneous
processing would undermine State
proceedings 92 and the public’s
84 Alabama Commission Comments at 1–3;
Georgia Commission Comments at 1–2; Impacted
Landowners Comments at 2–5; Joint Consumer
Advocates Comments at 6–11; Kansas Commission
Comments at 9–12; Kentucky Commission
Comments at 2–4; Louisiana Commission
Comments at 5–9; Maryland Commission
Comments at 2, 16–21; NESCOE Comments at 4, 6–
7; New York Commission Comments at 9–10; North
Carolina Commission and Staff Comments at 8, 10–
11; North Dakota Commission Comments at 5–6;
Pennsylvania Consumer Advocate Comments at 5–
7; Pennsylvania Commission Comments at 2, 4–6;
Texas Commission Comments at 5–6, 10–11;
Southern Comments at 3–8; Farm Bureaus
Comments at 3, 6; Chamber of Commerce
Comments at 2, 5.
85 See, e.g., North Dakota Commission Comments
at 6; NESCOE Comments at 4–6; Texas Commission
Comments at 6.
86 North Dakota Commission Comments at 5; Joint
Consumer Advocates Comments at 6; Maryland
Commission Comments at 21 (arguing that the oneyear should be tolled if material amendments are
filed at the State level).
87 New York Commission Comments at 9;
Maryland Commission Comments at 2, 18–19;
Pennsylvania Commission Comments at 7.
88 Georgia Commission Comments at 2.
89 See, e.g., Maryland Commission Comments at
2, 19; North Dakota Commission Comments at 2;
Louisiana Commission Comments at 5.
90 Joint Consumer Advocates Comments at 5.
91 Georgia Commission Comments at 2,4; Texas
Commission Comments at 6–9.
92 Louisiana Commission Comments at 5.
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confidence in State siting authorities.93
Pennsylvania Commission and North
Carolina Commission argue that
Congress meant to balance the
Commission’s process with State
primacy and that the NOPR’s
simultaneous processing proposal is
inconsistent with that goal.94
48. Several commenters argue that
simultaneous processing invites
potentially duplicative, wasteful
procedures, especially in instances
where the State ultimately approves the
application.95 Kentucky PSC contends
that the one-year delay actually helps
the Commission, as some projects will
be approved by States in that time,
saving the Commission from wasting
time and resources on commencing the
NEPA process.96 Chamber of Commerce
asserts that simultaneous processing, by
virtue of its design, guarantees that one
of the processes and the stakeholder
efforts will amount to a void and wasted
effort.97 Some commenters express
concerns that applicants may seek to
recover from ratepayers costs incurred
for commencing the Commission’s prefiling process in instances when the
State siting commission approves a
proposed transmission project.98
49. Commenters opposed to
simultaneous processing argue that the
NOPR proposal would
disproportionately burden State
agencies charged with processing
transmission siting applications. Some
commenters assert that simultaneous
proceedings would make it challenging
for State oversight agencies to
concurrently perform their quasijudicial role and act as intervenors in
Commission proceedings.99 Other
commenters contend that overlapping
hearings and comment deadlines 100
would strain State resources or divide
the attention of State experts.101
50. Multiple commenters assert that
the NOPR’s simultaneous processing
93 NESCOE
Comments at 6–7.
Commission Comments at 2;
North Carolina Commission and Staff Comments at
8.
95 See New York Commission Comments at 9;
Alabama Commission Comments at 2 n.3; North
Dakota Commission Comments at 6; North Carolina
Commission and Staff Comments at 8.
96 Kentucky Commission Comments at 3–4.
97 Chamber of Commerce Comments at 5;
Impacted Landowners Comments at 3.
98 Texas Commission Comments at 10–11;
Impacted Landowners Comments at 3.
99 See Kentucky Commission Comments at 2;
Alabama Commission Comments at 1; Pennsylvania
Commission Comments at 6.
100 See NESCOE Comments at 5–6.
101 See Kansas Commission Comments at 11–12;
New York Commission Comments at 9; Kentucky
Commission Comments at 2; Alabama Commission
Comments at 1; Pennsylvania Commission
Comments at 6.
94 Pennsylvania
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proposal would have an adverse effect
on stakeholder and applicant
participation in State proceedings.102 In
particular, some commenters express
concerns that multiple hearings and
comment deadlines resulting from
parallel State and Federal proceedings
would confuse stakeholders by
requiring interested participants and
affected landowners to learn and
comply with two sets of procedural
rules and substantive permitting
requirements.103 Some commenters
argued that the resulting confusion
would reduce stakeholder
participation.104
51. Several of the commenters that
oppose the simultaneous processing
proposal also oppose the proposed 90day comment period for States as an
inadequate replacement for the one-year
delay.105 Kentucky and Louisiana
Commissions argue that the 90-day
comment period for States will put them
in the position of choosing whether to
remain silent in the Commission prefiling process or to comment in favor of
or against a proposed project, essentially
‘‘prejudging’’ the project at the Federal
level while trying to maintain
impartiality in the ongoing State
proceeding.106 North Carolina
Commission and Staff oppose
simultaneous processing but support the
90-day comment period in the event
that the Commission adopts the
proposal, because it would afford the
States more time to participate in the
Commission’s pre-filing process.107
Although Pennsylvania Commission
also opposes simultaneous Federal and
State proceedings, it contends that the
90-day comment period is necessary
even in the absence of simultaneous
processing.108
52. Sabin Center and ClearPath both
suggest that the 90-day comment period
start one year after the start of the State
review, not one year after the
Commission’s pre-filing process has
begun.109 ClearPath suggests that there
be no 90-day comment period if a State
102 NESCOE comments at 5–6; Kansas
Commission Comments at 11–12.
103 See NESCOE Comments at 6; New York
Commission Comments at 9; Kansas Commission
Comments at 11–12.
104 See NESCOE Comments at 6.
105 See, e.g., Alabama Commission Comments at
2 n.6; Maryland Commission Comments at 19;
Kentucky Commission Comments at 2–3; Louisiana
Commission Comments at 5; Southern Comments at
8.
106 Kentucky Commission Comments at 2–3;
Louisiana Commission Comments at 5.
107 North Carolina Commission and Staff
Comments at 11–12.
108 Pennsylvania Commission Comments at 6–7.
109 Sabin Center comments at 3; ClearPath
Comments at 2.
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has already approved or denied an
application, as the State will have
already stated its position on the
project.110 Some entities seek clarity as
to whether the 90-day window
explicitly applies to every circumstance
triggering the Commission’s jurisdiction
under section 216.111 ACP points out
that the 90-day comment period would
serve as a second opportunity for State
input, as States will also have the
opportunity to provide input during
DOE’s National Corridor designation
process.112
c. Commission Determination
53. After further consideration and
review of the comments, we decline to
adopt the NOPR proposal to allow
simultaneous processing. We
acknowledge comments that argue that
simultaneous processing could result in
efficiencies, but given the concerns
raised by the States, we find that not
allowing simultaneous processing
strikes the appropriate balance at this
time between an efficient process and
respect for States’ primacy in siting
transmission infrastructure. We
continue to believe that the statute
allows parallel State and Commission
processes.113 Nevertheless, we make
this policy determination to continue
the Commission’s practice introduced in
Order No. 689, based on our review of
the record and, in particular, the
feedback received from States in their
filed comments and at the February 28,
2024 meeting of the Joint Federal-State
Task Force on Electric Transmission.114
Additionally, given this determination,
we are not adopting the NOPR proposal
to provide a 90-day period for the State
to comment on the pre-filing process.
54. We confirm that, in cases where
the Commission’s jurisdiction rests on
FPA section 216(b)(1)(C)(i),115 the
applicant should not begin the pre-filing
process until one year after the relevant
State applications have been filed. This
will give the States one full year to
process an application without any
overlapping Commission processes.
Once that year is complete, an applicant
may begin the Commission’s pre-filing
procedures pursuant to § 50.5. We
believe that continuing this approach
most adequately addresses State
concerns. However, as the Commission
previously stated in Order No. 689, if
we determine in the future that the lack
of a Commission pre-filing process prior
110 ClearPath
Comments at 2.
Consumer Advocates Comments at 6.
112 ACP Comments at 6.
113 Order No. 689, 117 FERC ¶ 61,202 at P 19.
114 See supra note 40, Tr. 79–90.
115 16 U.S.C. 824p(b)(1)(C)(i).
111 Joint
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to the end of the one year is delaying
projects or otherwise not in the public
interest, we may reexamine this issue.
B. Eminent Domain Authority and
Applicant Efforts To Engage With
Landowners and Other Stakeholders
55. Section 50.4 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 notifications early in both
the pre-filing and application review
processes. These notifications will
provide a range of information about 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 the rights an affected
landowner has at the Commission and
in proceedings under the eminent
domain rules of the relevant State.
1. NOPR Proposal
56. As described above, the IIJA
amended FPA section 216(e)(1) to
require the Commission to determine, as
a precondition to a permit holder
receiving eminent domain authority,
that the permit holder has made good
faith efforts to engage with landowners
and other stakeholders early in the
permitting process.116 Therefore, in the
NOPR, the Commission proposed to
supplement the existing landowner and
stakeholder participation provisions in
part 50 of its regulations.117
57. To address the IIJA’s amendment
to section 216(e)(1), in the NOPR the
Commission proposed to supplement
the regulatory requirements in § 50.4 by
adding a new § 50.12.118 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 includes recordkeeping (e.g.,
maintaining an affected landowner
discussion log) and information-sharing
requirements for engagement with
affected landowners, as well as more
general prohibitions against misconduct
in such engagement.
58. As the Commission proposed in
the NOPR, under § 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
116 16
U.S.C. 824p(e)(1).
181 FERC ¶ 61,205 at PP 24–29.
118 Id. PP 26–29.
117 NOPR,
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46689
Applicant Code of Conduct.119 Under
§ 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 non-compliance 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 noncompliance that were not disclosed in
prior monthly status reports and explain
any remedial actions taken to remedy
such instances of non-compliance.
59. In the NOPR, the Commission
emphasized that 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).120 Nevertheless, the
Commission stated 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. Thus, the
Commission proposed 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 statute’s good faith
efforts standard and explain for each
deviation from the Applicant Code of
Conduct why the chosen alternative is
an equal or better means to ensure that
the good faith efforts standard is met.
2. Comments
60. Public Interest Organizations and
the Yurok Tribe generally support the
Applicant Code of Conduct.121 In
addition, numerous commenters urge
the Commission to make compliance
with the Applicant Code of Conduct
mandatory for applicants to maximize
transparency and meaningfully assist
landowners and stakeholders.122 Public
Interest Organizations specifically
recommend that the Commission
elevate the Applicant Code of Conduct
as the sole means of demonstrating
compliance with the good faith efforts
standard in section 216(e)(1), asserting
that allowing alternative methods could
119 Id.
P 27.
P 28.
121 Public Interest Organizations Comments at 16–
17; Yurok Tribe Comments at 30.
122 EDF Comments at 13: Farm Bureaus
Comments at 11; Public Interest Organizations
Comments at 18; NESCOE Comments at 13;
Pennsylvania Consumer Advocate Comments at 7.
120 Id.
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result in ambiguity for the applicant and
other stakeholders.123
61. Impacted Landowners and EDF
urge the Commission to create clear
standards to guide its good faith efforts
determination, including for alternative
methods of demonstrating that an
applicant meets the good faith efforts
standard.124
62. In opposition, American
Chemistry Council and ClearPath state
that the Commission’s proposed good
faith efforts requirements are overly
prescriptive, intrusive, outside the
scope of the Commission’s statutory
mandates, and will turn efforts to
engage affected landowners into a boxchecking exercise instead of meaningful
engagement.125 American Chemistry
Council and ClearPath dispute the
Commission’s assertion that compliance
with the Applicant Code of Conduct is
voluntary given that applicants
pursuing alternative methods of meeting
the good faith efforts requirement must
explain how their methods are equal to
or better than compliance with the
Applicant Code of Conduct.126
ClearPath also contends that the
Applicant Code of Conduct contains
redundancies, including the
requirement in proposed § 50.12 that
applicants provide landowners, upon
first contact, with documentation about
the project, which, it says, is duplicative
of the notification requirements in
§ 50.4(c).127 Furthermore, ClearPath
contends that the NOPR proposal would
create inconsistent requirements for
transmission siting applications under
the FPA and natural gas pipeline
applications under the Natural Gas
Act.128
63. Impacted Landowners state that
merely having an Applicant Code of
Conduct will not result in actual good
faith efforts by an applicant to engage
with landowners and generally that
codes of conduct do not work. They
assert that there has historically been no
policing or punishment of violations
associated with codes of conduct.129
Further, Impacted Landowners assert
that although the proposed Applicant
Code of Conduct admonishes applicants
123 Public
Interest Organizations Comments at 42–
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44.
124 Impacted Landowners Reply Comments at 6;
EDF Comments at 13.
125 American Chemistry Council Comments at 6;
ClearPath Comments at 3.
126 American Chemistry Council Comments at 6;
ClearPath Comments at 3. For example, ClearPath
notes that the regulations require monthly status
reports and questions whether any less frequent
reporting would be deemed ‘‘equal or better’’ than
monthly reporting.
127 ClearPath Comments at 3.
128 Id.
129 Impacted Landowners Comments at 7–10.
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to avoid coercive tactics while they
engage in negotiations with landowners,
there is no way to bring up the possible
exercise of eminent domain without it
being interpreted by the landowner as
coercive.130
64. California Commission states that
the proposed regulations under
§ 50.12(b)(2) should be revised to
require a demonstration and
documentation of compliance with the
Applicant Code of Conduct rather than
only an ‘‘affirmation’’ to ensure
applicant compliance.131
65. Several commenters seek
clarification regarding the timing and
duration of the Commission’s good faith
efforts determination required by FPA
section 216(e)(1). For instance, Impacted
Landowners ask the Commission to
clarify the point at which the
‘‘applicable permitting process’’ begins,
during which applicants must make
good faith efforts to engage with
landowners and other stakeholders.
They also ask when the Commission
would determine if good faith efforts
have been made and whether applicants
will be expected or required to continue
to make good faith efforts to engage with
landowners and other stakeholders once
a permit is issued, asserting that after
permit issuance, applicants will likely
increase land acquisition efforts and
negotiations can become more
contentious.132 Several commenters
suggest that applicants must make good
faith efforts to engage with landowners
and other stakeholders throughout the
permitting process, including prior to
the start of the Commission’s pre-filing
process.133 EEI notes that in instances of
late project routing changes it may be
difficult to comply with the statutory
good faith efforts requirement.134
66. Similarly, several commenters
raise timing concerns with using an
alternative method, allowed in proposed
§ 50.12(c), to demonstrate that the good
faith efforts standard has been met.
Public Interest Organizations assert that
the proposed regulations are ambiguous
with respect to how or when the
Commission would determine that an
applicant’s alternative method is equal
to or better than the Commission’s
Applicant Code of Conduct.135 EEI asks
the Commission to avoid any disruption
130 Id.
at 8.
131 California
132 Impacted
Commission Comments at 7.
Landowners Reply Comments at 5–
6.
133 Public Interest Organizations Comments at 17
and 21; Niskanen Comments at 7.
134 EEI Comments at 7.
135 Public Interest Organizations Comments at 42–
44.
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or delay when making that
determination.136
67. Several commenters offer
suggestions with respect to the scope of
an applicant’s good faith efforts under
FPA section 216(e)(1). Public Interest
Organizations and SEIA claim that
proposed § 50.12, which applies to
communications with affected
landowners, fails to take into account
section 216(e)(1)’s statutory directive to
make good faith efforts to engage
‘‘landowners and other
stakeholders.’’ 137 Public Interest
Organizations and SEIA recommend
that the regulations in § 50.12 be
amended to include conduct with
‘‘other stakeholders,’’ 138 noting that this
change would extend the duty of good
faith to environmental justice
communities.139 The Yurok Tribe,
Chickahominy Indian Tribe,
Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe state that Tribes
should be included as a separate
stakeholder in the regulations with
whom applicants must demonstrate
good faith efforts to engage, including in
the Applicant Code of Conduct.140
68. Impacted Landowners argue that
the proposed Applicant Code of
Conduct only applies to applicants and
would not extend to contracted land
agents who negotiate with
landowners.141 Niskanen suggests that
the Commission add explicit language
to the Applicant Code of Conduct to
capture applicability to land agents
acting on behalf of applicants.142
69. Pennsylvania Consumer Advocate,
asserting that improper land agent
tactics are the most common cause of
complaints during transmission line
siting cases, urges Commission staff to
oversee interactions between applicants
and affected landowners.143 Several
commenters suggest that the
Commission establish compliance
procedures and communication
channels for landowners and
stakeholders to provide feedback to the
Commission concerning applicants’
efforts to engage in good faith and
violations of the Applicant Code of
136 EEI
Comments at 7.
Interest Organizations Comments at 3
137 Public
and 17.
138 Id. at 18–21.
139 Id. at 78–79; SEIA Comments at 10.
140 Yurok Tribe Comments at 30; Chickahominy
Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi
Indian Tribe Comments at 2.
141 Impacted Landowners Comments at 9–10.
142 Niskanen Comments at 18–20.
143 Pennsylvania Consumer Advocate Comments
at 8.
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Conduct.144 Public Interest
Organizations and Niskanen
recommend that the Commission assign
its Office of Public Participation to
receive from landowners and
stakeholders reports of abuse or
fraudulent behavior exhibited by the
applicant or any representative of the
applicant.145 Additionally, numerous
commenters state that the Commission
should add language to the Landowner
Bill of Rights instructing affected
landowners to promptly report to the
Commission any instances of abuse or
fraudulent behavior exhibited by the
applicant or any representative of the
applicant.146 Impacted Landowners
recommend that the Commission
independently investigate complaints of
violations of the Applicant Code of
Conduct, and that Commission-verified
violations should be punished to
prevent recurrence.147
70. Similarly, several commenters
recommend that the Commission
require applicants to include the
discussion logs required under
proposed § 50.12(a)(1) as part of the
monthly status reports applicants must
submit under § 50.5(e)(11),148 or,
alternatively, provide copies of
discussion logs to landowners,
stakeholders, and Tribes for the purpose
of verifying their accuracy.149 The
Yurok Tribe and Public Interest
Organizations ask that the Applicant
Code of Conduct include a requirement
for applicants to note within their
discussion logs who within a Tribe was
contacted, a description of the contacted
Tribal representative’s role, and whether
another Tribal representative was
suggested to be contacted.150 The Yurok
Tribe states that the applicant must be
held accountable to follow up on
alternative contact recommendations.
The Yurok Tribe also suggests that the
discussion logs include the date of any
144 Impacted Landowners Comments at 11;
Impacted Landowners Reply Comments at 5–6;
Public Interest Organizations Comments at 17;
Pennsylvania Consumer Advocate Comments at 7–
8.
145 Public Interest Organizations Comments at 40;
Niskanen Comments at 15–17.
146 Public Interest Organizations Comments at 40;
Niskanen Comments at 15–17.
147 Impacted Landowners Comments at 11.
148 Due to a clarifying edit, in this final rule the
Commission has split and redesignated what
appeared in the NOPR as § 50.5(e)(7) and (8) into
§ 50.5(e)(7), (8), and (9). With this change, the
NOPR’s redesignated § 50.5(e)(9) and (10) are
further redesignated to § 50.5(e)(10) and (11).
Consequently, this final rule references these
regulations according to the final redesignated
numbering.
149 Public Interest Organizations Comments at 22–
23; NESCOE Comments at 14, Niskanen Comments
at 20, Yurok Tribe Comments at 32 and 34.
150 Yurok Tribe Comments at 31–32; Public
Interest Organizations Comments at 70–71.
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questions posted by a Tribe, the
contents and date of any applicant
responses to questions, any follow-up
after the initial answer, and the method
of contact for each interaction (e.g.,
phone, email, in-person).151
71. Specific to the Applicant Code of
Conduct, Public Interest Organizations
note that proposed § 50.12(a)(2) requires
the applicant to provide certain
information to each stakeholder at first
contact. However, Public Interest
Organizations state that the regulations
do not include a deadline for the
applicant to provide these documents.
Public Interest Organizations
recommend that the Commission set a
reasonable deadline for providing this
information, such as sending the
document within three business days of
first contact.152
72. Several commenters provide
additional recommendations for the
Applicant Code of Conduct, including
requiring that company representatives:
provide landowners with a copy of the
Applicant Code of Conduct at first
notification; 153 present photo
identification; 154 consent to being
recorded or photographed,155 and
explain their position and decisionmaking authority along with providing
contact information for decision
makers.156 Impacted Landowners ask
that the Applicant Code of Conduct
require applicants to notify landowners
of their right to have counsel of their
choice review the easement agreement
before signing and that use of eminent
domain to acquire a right-of-way
requires payment of just compensation
determined by the appropriate court.157
Other commenters suggest that the
Commission require via the Applicant
Code of Conduct that applicants must
obtain consent from Tribes to enter any
form of Tribal land or any area known
to have cultural resources and that all
individuals who conduct outreach to
Tribes have undergone training,
including affected Tribes’ own
programming.158 ACEG recommends
that the Applicant Code of Conduct
require applicants to adequately protect
landowners’ personally identifiable
information.159 Finally, EDF suggests
that the Applicant Code of Conduct
include provisions for applicants to
151 Yurok
Tribe Comments at 32.
Interest Organizations Comments at 23.
153 Impacted Landowners Comments at 11.
154 Id.
155 Id.
156 Yurok Tribe Comments at 31; Public Interest
Organizations Comments at 70–71.
157 Impacted Landowners Comments at 11.
158 Yurok Tribe Comments at 33; Public Interest
Organizations Comments at 70.
159 ACEG Comments at 18.
152 Public
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46691
determine the preferred language of all
affected landowners and communicate
with affected landowners in their
preferred language.160
3. Commission Determination
73. To incorporate the IIJA’s
amendment to section 216(e)(1)
requiring a determination by the
Commission as to whether the permit
holder has made good faith efforts to
engage with landowners and other
stakeholders, we adopt the NOPR
proposal, with modifications. We find
that establishing standards via the
Applicant Code of Conduct provides
clarity on expectations for applicants
and will support the Commission in
making the required good faith efforts
determination. As discussed further
below, in response to commenter
feedback, we modify the NOPR proposal
to: clarify the timing and duration of
certain Applicant Code of Conduct
provisions, ensure applicant
representatives present photo
identification and provide the
applicant’s contact information during
discussions with affected landowners,
require that applicants explain to
affected landowners that they may
request copies of discussion log entries
that pertain to their property, and
require applicants to provide affected
landowners copies of their discussion
log entries upon request.
74. We both decline commenters’
requests to make the Applicant Code of
Conduct mandatory and disagree with
commenters who argue that, by setting
minimum requirements, we have de
facto made the Applicant Code of
Conduct mandatory. Given that the IIJA
requires, as a prerequisite to the permit
holder using eminent domain, that the
Commission determine whether a
permit holder has made good faith
efforts to engage with landowners and
other stakeholders early in the
applicable permitting process, we
believe it is important for the
Commission to identify a means for
potential applicants to obtain that
determination. At the same time, while
the Applicant Code of Conduct reflects
the principles, we find to be broadly
relevant to determining that an
applicant has made good faith efforts to
engage with landowners, we will not
declare that the specific steps outlined
in the Applicant Code of Conduct are
the only way those principles can be
achieved and demonstrated. Therefore,
we will allow applicants to propose for
the Commission’s consideration
alternative methods to demonstrate that
the statute’s good faith efforts standard
160 EDF
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will be met. We disagree that this
framework would lead to ambiguity as
commenters suggest. The scope and
complexity of projects that the
Commission may receive could
significantly vary and we find it
appropriate at this point not to forestall
alternative options to demonstrate
compliance with the good faith efforts
standard. We find that the Applicant
Code of Conduct and option to comply
with an alternative method provides
applicants sufficiently clear standards to
allow a demonstration of good faith
efforts while providing for appropriate
flexibility, which may be necessary
based on project-specific circumstances.
75. Establishing an Applicant Code of
Conduct does not exceed the
Commission’s authority under FPA
section 216. As described above,
Congress has directed the Commission
to determine, as a prerequisite to the use
of eminent domain under FPA section
216(e)(1), that a permit holder has made
good faith efforts to engage with
landowners and other stakeholders. It is
consistent with that directive to set forth
in the Commission’s regulations a set of
actions which we find, if followed, will
result in the appropriate engagement
expected of applicants in their
interactions with landowners and
provides guidance as to the standards
the Commission will apply in
determining whether an applicant has
met the statutory requirement.
76. Regarding ClearPath’s concerns
that the Applicant Code of Conduct
contains redundancies, we note that the
notification requirements under § 50.12
are structured to specifically address an
applicant’s demonstration of its good
faith efforts to engage affected
landowners. The Commission’s existing
notification requirements in § 50.4
facilitate participation from all
landowners and other stakeholders
during the Commission’s proceeding.
Although affected landowners may
receive multiple notifications from
applicants as a result of these
requirements, the Commission does not
view this as overly burdensome for
applicants.
77. We also are not persuaded by
ClearPath’s argument that the
Commission can only adopt reforms to
stakeholder participation requirements
if those revisions are applied equally to
other Commission infrastructure
processes (i.e., to natural gas and
hydropower proceedings).161 Section
161 The Commission is not obligated to implement
changes in a single, sweeping step, and is not
barred from implementing process improvements to
only one program at a time. See, e.g.,
Transportation Div. of the Int’l Ass’n of Sheet Metal,
Air, Rail & Transportation Workers v. Fed. R.R.
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216(e)(1) of the FPA requires the
Commission to determine, as a
prerequisite to 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.
There is no such requirement under the
NGA or Part I of the FPA.
78. In response to questions about the
timing of the Commission’s good faith
efforts determination, we clarify that,
regardless of whether the applicant
follows the Applicant Code of Conduct
or an alternative method, we expect to
issue such determinations concurrently
with an order on the merits of a permit
application under section 216(b), based
on the record in the proceeding.
79. Regarding Impacted Landowners’
question as to when the ‘‘applicable
permitting process’’ and good faith
efforts requirements begin and whether
applicants must continue to make good
faith efforts to engage after permit
issuance, we clarify that a good faith
efforts demonstration begins with the
commencement of the Commission’s
pre-filing process and continues through
the issuance of the Commission’s order
on the merits of the application. We
adopt a revision in the Applicant Code
of Conduct to relocate, from
§ 50.12(a)(1) to the introductory text in
paragraph (a) of this section, the phrase
‘‘for the duration of the pre-filing and
application review processes’’ to make
clear that this duration applies to all
Applicant Code of Conduct
requirements. We also expect applicants
to act in good faith in their dealings
with landowners and other stakeholders
during any post-authorization
engagement related to the exercise of
eminent domain, construction of the
project, and any post-construction
mitigation or other ongoing activities
involving landowners and other
stakeholders.
80. We also disagree with assertions
that merely adopting an Applicant Code
of Conduct would not result in actual
good faith efforts or could produce
contradictory results. Some of these
assertions appear premised on the
notion that any engagement in which an
applicant retains the potential to use
eminent domain is not in good faith.
However, we believe that an applicant
demonstrates good faith efforts by the
course of its engagement and efforts to
involve landowners and other
stakeholders in the process, rather than
by whether eminent domain is
Admin., 10 F.4th 869, 875 (D.C. Cir. 2021) (agencies
have great discretion to take one step at a time and
do not need to act in ‘‘one fell regulatory swoop’’)
(internal citation and quotation omitted).
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ultimately necessary or parties are
satisfied with the outcome of that
engagement. We also disagree with
claims that the Applicant Code of
Conduct will reduce engagement to a
‘‘box checking exercise.’’ 162 We believe
compliance with the informationsharing and recordkeeping provisions in
the Applicant Code of Conduct will
encourage meaningful engagement with
landowners and help ensure that
engagement meets the good faith efforts
standard.
81. We decline to revise proposed
§ 50.12(b)(2) to require further
demonstration beyond affirmation of
compliance with the Applicant Code of
Conduct. The Applicant Code of
Conduct requires thorough
documentation of an applicant’s
discussions with affected landowners,
and each month an applicant must
either affirm that it has complied with
the Applicant Code of Conduct or
provide a detailed explanation of any
instances of non-compliance and any
remedial actions taken or planned. As
noted above, an applicant must
demonstrate good faith efforts for the
duration of the Commission’s pre-filing
and application review processes. In
this final rule, we add § 50.12(b)(4) to
clarify that an applicant must continue
to file monthly status reports describing
its efforts to comply with the Applicant
Code of Conduct during the application
review process.
82. Regarding alternatives to the
Applicant Code of Conduct, we clarify
that an applicant that uses an alternative
method to demonstrate good faith efforts
to engage with landowners will bear the
burden to explain how its alternative
method is equal to or better than
compliance with the Applicant Code of
Conduct. The Commission would not
typically reach a determination that this
standard is met until it evaluates the
permit application and determines
whether to issue a permit. Thus, an
applicant who seeks to demonstrate that
an alternative method is equal to or
better than compliance with the
Applicant Code of Conduct will face
uncertainty regarding the acceptability
of its method until the Commission
determines it meets the regulatory
standard. We have set forth an
Applicant Code of Conduct that reflects
principles we find to be broadly
relevant to determining whether an
applicant has made good faith efforts to
engage with landowners and establishes
a set of practices we believe are
sufficient to achieve those principles.
Applicants should propose deviations
162 See, e.g., American Chemistry Council
Comments at 6; ClearPath Comments at 3.
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only where they are confident that their
approach is equal to or better than the
Applicant Code of Conduct as a means
of demonstrating that they have made
good faith efforts to engage with
landowners as required by the statute.
83. In response to EEI’s comment
regarding the potential for late-stage
route changes, we note that applicants
are required to file monthly reports
during the pre-filing process detailing
the efforts to comply with the Applicant
Code of Conduct. To the extent that
project route changes are developed
during the pre-filing process, we expect
that engagement with landowners and
other affected stakeholders who would
be newly impacted by the contemplated
route change will be documented in
monthly reports. In the instance of route
changes that occur after an application
is filed, § 50.4(c)(3) requires
notifications to newly affected
landowners when they are identified.
We expect applicants to continue to
make good faith efforts to engage
affected landowners, including those
impacted by post-application and postauthorization route changes, throughout
the application review process and
through construction and restoration
and mitigation efforts.
84. In response to comments
regarding the scope of proposed § 50.12,
we agree with commenters that FPA
section 216(e)(1) requires an applicant
to demonstrate good faith efforts to
engage with ‘‘landowners and other
stakeholders.’’ We decline to alter the
scope of the Applicant Code of Conduct,
which specifically provides an
applicant a means to demonstrate
compliance with the good faith efforts
standard in communications with
affected landowners. The Applicant
Code of Conduct specifies
recordkeeping and information-sharing
requirements that are tailored to
encourage productive and more
sustained engagement with affected
landowners regarding the use or
acquisition of their property, which may
not necessarily apply to engagement
with other stakeholders. With regard to
good faith efforts to engage with other
stakeholders, applicants bear the burden
to demonstrate good faith efforts at
engagement and should strive to
incorporate best practices used in
engagement with affected landowners in
engagement with other stakeholders, as
applicable. We also clarify that the
Commission will assess case-by-case an
applicant’s good faith efforts to engage
with other stakeholders, based on the
record in a proceeding. We will
consider, among other things, an
applicant’s efforts to engage
stakeholders as described in the Project
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Participation Plan (including
engagement with environmental justice
communities and Tribes), monthly
status reports describing stakeholder
communications during pre-filing, and
compliance with Commission
regulations for project notifications.
85. In response to the requests of
several Tribes, we clarify that Tribes
meeting the definition of Indian Tribe in
§ 50.1 qualify as stakeholders for which
applicants would be required to make
good faith efforts to engage. We
conclude that the good faith efforts
requirements as discussed herein will
ensure appropriate engagement with
Tribes. Accordingly, the Commission
would consider evidence of engagement
with Tribes in its assessment of whether
the good faith efforts standard has been
met.
86. As to applicability of the
Applicant Code of Conduct to land
agents, we note that proposed
§ 50.12(a)(12), adopted in this final rule,
explicitly applies the Applicant Code of
Conduct to any representative acting on
the applicant’s behalf, which includes
land agents.
87. We decline to adopt additional
mechanisms to monitor compliance
with the good faith efforts standard. We
do not believe that it is an appropriate
or practical use of Commission or
stakeholder resources to adjudicate good
faith efforts issues during the course of
a proceeding. We encourage affected
landowners and other stakeholders to
participate in the pre-filing process and
the permit proceeding once an
application is filed. Landowners and
other stakeholders may file comments in
the project-specific proceeding and may
contact the Commission’s landowner
helpline to identify perceived violations
of the Applicant Code of Conduct for
consideration and to request
investigation by the Commission. Any
comments submitted in the record may
inform the Commission’s deliberation
regarding the good faith efforts standard
and issuance of the permit. We also note
that the Office of Public Participation
may be able to provide technical
assistance to landowners and other
stakeholders regarding how to
participate in a proceeding, but will not
serve as an advocate for stakeholders.
88. We also decline to make any
additional changes to the applicant’s
duty under § 50.12(a)(1) to develop and
maintain a log of discussions because
we conclude that the proposed
requirements are sufficiently detailed to
record engagement with affected
landowners, and the Applicant Code of
Conduct, as discussed above, is
specifically aimed at promoting good
faith engagement. We similarly decline
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46693
to require applicants to file the
discussion logs with the applicant’s
monthly status reports required by
§ 50.5(e)(11), as such a categorical
requirement is not necessary to promote
good faith engagement and could result
in the public disclosure of information
that landowners may not want shared
with the general public. With respect to
commenters’ request that affected
landowners be provided with any
relevant discussion logs, this final rule
modifies § 50.12(a)(2) to require
applicants to explain to affected
landowners that they may request
copies of discussion log entries that
pertain to their property and how
affected landowners make such
requests, and modifies § 50.12(a)(5) to
require applicants to provide affected
landowners copies of discussion log
entries, upon request.
89. Turning to commenter feedback
on specific provisions in the Applicant
Code of Conduct, we agree with Public
Interest Organizations that requiring an
applicant to provide to each affected
landowner specified documents
‘‘immediately’’ after first contact may be
vague and confusing. Therefore, we
modify the NOPR proposal in
§ 50.12(a)(2) by deleting ‘‘immediately’’
and adding in its place ‘‘within three
business days’’ to clarify how soon after
the first contact the required document
must be provided to the landowner.
90. We decline to require applicants
to provide landowners with copies of
the Applicant Code of Conduct, as
recommended in comments. As stated
in the NOPR, 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. We do not
believe that requiring applicants to
provide the Commission’s regulatory
text to affected landowners is necessary
or will assist in our good faith efforts
determination. In any event, we note
that the Commission’s Electric
Transmission Facilities Permit Process
pamphlet—a copy of which applicants
must include as part of their Pre-filing
Notifications sent by mail—will be
updated to reflect the provisions in this
final rule, and will include the text of
the Applicant Code of Conduct.
91. Regarding requests that applicant
representatives present photo
identification when engaging with
affected landowners, we agree and
adopt this requirement in § 50.12(a)(3).
We find that a photo identification
requirement provides an important
protection to an affected landowner in
confirming the identity and business
association of the applicant
representative with whom the
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landowner is speaking, and such
requirement presents a minimal burden
on the applicant.
92. Given the protections to affected
landowners contained herein, including
in the Landowner Bill of Rights and the
required sharing of information by the
applicant, as well as the photo
identification requirement, we decline
to also add a requirement that applicant
representatives consent to being
recorded and photographed.
93. Regarding the request for company
representatives to provide contact
information for decision makers, we
assume commenters are referring to a
decision maker within the applicant’s
company. We agree that it is important
to provide affected landowners a way to
contact the applicant to obtain more
information about a project or report
any issues with land agents. Therefore,
we modify the NOPR proposal in
§ 50.12(a)(3) to require an applicant’s
representative to also provide contact
information for the applicant.
94. Regarding Tribal concerns for
obtaining consent to enter Tribal lands,
we clarify that the Applicant Code of
Conduct would apply to land owned in
fee by a Tribe or member of a Tribe, so
§ 50.12(a)(9) would require approval
from the Tribe or member of a Tribe
under those circumstances.
95. We also decline to adopt a
requirement that applicants have
specific engagement training that may
be provided by Tribes. While such
engagement training may constitute a
good business practice, we do not find
a generic requirement necessary to
promote good faith efforts to engage
with affected landowners or other
stakeholders. We reiterate that the
burden is on the applicant to
demonstrate that the good faith efforts
standard has been met, and we therefore
expect that the applicant will take
reasonable steps to engage with Tribes.
96. We also disagree that an addition
to the Applicant Code of Conduct to
protect landowners’ personally
identifiable information is necessary.
We expect applicants to protect
sensitive information from public
release, however, some personal
information (e.g., a landowner’s name or
mailing address) may be sourced from
public databases or applicants may need
to share such information with its own
contractors or submit it to agencies as
part of permitting application
submittals. Of course, when filing
information that may contain personal
information with the Commission,
applicants should use any appropriate
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filing classification for proper treatment
by the Commission.163
97. As to the suggestion that
applicants should communicate with
landowners in their preferred language,
we understand the importance of
communicating basic information about
the project, particularly to landowners
who may be subject to eminent domain,
in languages other than English where a
significant portion of the community
has limited English proficiency. As
discussed below, in response to
comments, we modify proposed § 50.4
to require applicants to identify census
block groups that include limited
English proficiency households, identify
the languages spoken in those census
block groups, and, under certain
circumstances, provide project
notifications in languages other than
English. Applicants must also describe
in the Environmental Justice Public
Engagement Plan how they will
identify, engage, and accommodate
people with limited English proficiency.
C. Environmental Justice Public
Engagement Plan
1. NOPR Proposal
98. In the NOPR, the Commission
stated that the existing provisions of
§ 50.4(a) require applicants to develop
and file a Project Participation Plan
early in the pre-filing process.164 The
Commission explained that this
requirement is intended to facilitate
stakeholder communications and the
dissemination of public information
about the proposed project, including
meaningful engagement early in the prefiling process with potentially affected
environmental justice communities. The
Commission further explained that
engagement with environmental justice
communities is consistent with a series
of executive orders, the Promising
Practices for EJ Methodologies in NEPA
Reviews (Promising Practices) report,
and the Commission’s Equity Action
Plan.165 Accordingly, the Commission
163 For example, applicants may request
privileged treatment for landowner mailing lists
submitted to the Commission by following the
procedures specified in § 388.112 of the
Commission’s regulations.
164 NOPR, 181 FERC ¶ 61,205 at P 30.
165 Id. (citing E.O. 12898, Federal Actions To
Address Environmental Justice in Minority
Populations and Low-Income Populations, 59 FR
7629 (Feb. 11, 1994); E.O. 14008, Tackling the
Climate Crises at Home and Abroad, 86 FR 7619
(Jan. 27, 2021); E.O. 13985, Advancing Racial
Equity and Support for Underserved Communities
Through the Federal Government, 86 FR 7009 (Jan.
20, 2021); Federal Interagency Working Group on
Environmental Justice & NEPA Committee,
Promising Practices for EJ Methodologies in NEPA
Reviews (Mar. 2016), https://www.epa.gov/sites/
default/files/2016-08/documents/nepa_promising_
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proposed to require, under § 50.4(a)(4)
as part of the Project Participation Plan,
that applicants develop an
Environmental Justice Public
Engagement Plan describing the
applicant’s outreach activities that are
targeted to identified environmental
justice communities.166
99. The NOPR explained that the
proposed Environmental Justice Public
Engagement Plan would require
applicants to 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.167 The proposed
plan must also describe the manner in
which the applicant will reach out to
environmental justice communities
about potential mitigation.168
2. Comments
100. Some commenters question the
Commission’s authority to require the
Environmental Justice Public
Engagement Plan, given the reliance on
executive orders and guidance.
Representatives McMorris Rodgers and
Duncan state that the NOPR appears to
broadly interpret the Commission’s
practices_document_2016.pdf.; Commission, Equity
Action Plan (2022), https://www.ferc.gov/equity.)
166 To identify potentially-affected environmental
justice communities in individual proceedings,
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%; or
(2) the aggregate minority population in the block
group affected is 10% higher than the aggregate
minority population percentage in the county.
Federal Interagency Working Group on
Environmental Justice & NEPA Committee,
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. Using Promising
Practices’ low-income threshold criteria method,
low-income populations are currently identified 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. E.g., Transcon.
Gas Pipe Line Co. LLC, 186 FERC 61,209, at PP 34–
36 (2024).
167 NOPR, 181 FERC ¶ 61,205 at P 31.
168 We note that the proposed 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
Part II.F.4.e.
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statutory authority and thus request that
the Commission specify what statutory
authorities it is relying upon.169
Conversely, NESCOE argues that the
proposed Environmental Justice Public
Engagement Plan aligns with the
Commission’s statutory authority under
FPA section 216(b).170 ClearPath is also
concerned that reliance on best
practices derived from CEQ, the
Environmental Protection Agency
(EPA), Census Bureau, and other
authoritative sources, introduces
uncertainty and delay should applicants
have to re-do compliance requirements
every time new data or guidance
becomes available.171
101. American Chemistry Council and
ClearPath argue that, although they
support community engagement, the
proposed Environmental Justice Public
Engagement Plan does not advance this
goal because the proposal imposes
extensive new requirements, as well as
specific notice and follow-up actions
that are likely to undermine community
engagement, redirect effort from
engagement to duplicative and
excessive paperwork, and foster
increased procedural litigation and
challenges—leading to delays.172
American Chemistry Council states that
the Commission should limit any new
planning mandates to outlining strategic
goals, planned communication tools and
strategies, and desired outcomes.173
Representatives McMorris Rodgers and
Duncan argue that the Environmental
Justice Public Engagement Plan includes
vague requirements and asks whether
the Commission will issue more specific
guidelines.174 ClearPath argues that the
Commission failed to explain how the
current stakeholder participation
revisions are deficient for
environmental justice communities, but
not for the general public; therefore, it
recommends that the Commission
continue to utilize its existing public
participation procedures and not add a
separate, duplicative Environmental
Justice Public Engagement Plan.175
102. On the other hand, several
commenters support the requirement for
an Environmental Justice Public
Engagement Plan. Public Interest
Organizations believe that the
Commission must take concrete,
tangible action to require robust
169 Representatives McMorris Rodgers and
Duncan Comments at 2.
170 NESCOE Comments at 15–26.
171 ClearPath Comments at 4.
172 American Chemistry Council Comments at 7;
ClearPath Comments at 4–5.
173 American Chemistry Council Comments at 7.
174 Representatives McMorris Rodgers and
Duncan Comments at 2.
175 ClearPath Comments at 4.
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community engagement and
partnership.176 Environmental Law &
Policy Center states that this early
stakeholder engagement will improve
the transmission siting process.177 Clean
Energy Buyers also comment in support
but recognize that the success of a plan
will depend on the applicant’s ability to
actually engage with the target
communities.178
103. Several commenters request
clarification and revision to the
proposed requirement for an
Environmental Justice Public
Engagement Plan. EDF states that
because the NOPR was drafted before
the issuance of Executive Order 14096,
the Commission should review its
proposal in light of renewed and
strengthened environmental justice
requirements to ensure compliance with
updated rules and guidance.179 It also
encourages the Commission to mandate
engagement on mitigation, including the
discussion of alternatives and
community benefit programs.
Environmental Law & Policy Center
urges the Commission to adopt specific
recommendations to ensure that
engagement is more than a box-checking
exercise for developers.180 NESCOE
states that, under the NOPR proposal,
applicants would not be required to
comply with any actual standards for
engaging with environmental justice
communities, including documentation,
accountability, and enforcement of
consequences for inadequate
engagement.181 EDF requests that the
Commission periodically review the
results of applicants’ Environmental
Justice Public Engagement Plans and
determine whether they are yielding
sufficient engagement with
environmental justice communities.182
104. Several commenters recommend
specific methodology and terminology
clarifications.183 Public Interest
Organizations ask the Commission to
require applicants to use updated
information from CEQ and EPA when
identifying environmental justice
communities as part of their
Environmental Justice Public
176 Public Interest Organizations Comments at 44,
86–89.
177 Environmental Law & Policy Center
Comments at 2.
178 Clean Energy Buyers Comments at 8–9.
179 EDF Comments at 9 (referencing E.O. 14096,
Revitalizing Our Nation’s Commitment to
Environmental Justice for All, 88 FR 25251 (Apr.
21, 2023)).
180 Environmental Law & Policy Center
Comments at 2.
181 NESCOE comments at 25; EDF Comments at
9.
182 EDF Comments at 9.
183 EDF Comments at 8; Environmental Law &
Policy Center Comments at 4.
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Engagement Plan or providing
specificity on the additional sources the
Commission expects applicants to use,
to ensure consistency and transparency
in the methodology selection process.184
Public Interest Organizations state that
the Commission must: prioritize
identification methodologies that
promote accurate identification of
environmental justice communities;
provide guardrail language to guide the
methodology selection process while
creating flexibility; acknowledge the
scope and limitations of potential
databases and tools, where applicable;
and commit to promptly update its
methods for identifying environmental
justice communities.185 In addition,
they state that the Commission should
refine the term ‘‘outreach activities’’ in
order to require developers to seek
guidance on and then incorporate
community-based best practices and
methods for both disseminating and
requesting information and input from
the community.186 Public Interest
Organizations argue that outreach
activities should include a reciprocal
educational component where
developers as well as the community
members share and meaningfully engage
with each other.187
105. EDF and Policy Integrity
recommend that the Commission and
developers utilize specific tools such as
the EPA’s EJScreen Tool, CEQ’s Climate
and Economic Justice Screening Tool
(CEJST), and State-developed mapping
tools to identify environmental justice
communities.188 Public Interest
Organizations agree on the need for
more nuanced and fulsome
identification of environmental justice
communities, but state that utilization
of the EJScreen and CEJST can only be
useful first steps in this methodology
given that both tools have inherent
limitations.189
106. Policy Integrity states that the
Commission should require
incorporation of screening tools that use
a combination of environmental and
socioeconomic proxies, such as
proximity to pollution, because relying
upon demographic-only proxies like
income and race might not capture
localized harms and omit communities
that would otherwise satisfy the
proposed definition of environmental
184 Public
Interest Organizations Comments at 86.
at 84–85.
186 Id. at 88.
187 Id.
188 EDF Comments at 9; Policy Integrity
Comments at 24–37; Environmental Law & Policy
Center Comments at 4.
189 Public Interest Organizations Comments at 84–
85.
185 Id.
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justice community.190 It asks the
Commission to recognize any
historically marginalized community
that bears any type of disproportionate
environmental burden or faces
disparities in access to environmental
benefits as an environmental justice
community.191 In addition, Policy
Integrity states that the Commission
should establish a mechanism for
communities to self-identify as
environmental justice communities, and
then adjudicate whether a community
should be considered an environmental
justice community in light of submitted
evidence.192
107. Commenters make additional
recommendations in support of
transparency and accountability in the
process of engaging with environmental
justice communities, including
requiring notices in languages other
than English, maintaining a project
website, and using additional
notification methods.193 NESCOE
recommends several engagement best
practices such as holding in-person
meetings ‘‘in locations that are
accessible by public transportation . . .
[and] at times that would allow working
individuals to attend,’’ providing
childcare during such meetings,
designating a community liaison, and
disseminating non-technical
information that meaningfully explains
how one might be impacted by the
project.194 Some commenters
recommend that the Commission’s
Office of Public Participation have a role
in the identification of barriers to
participation as well as helping foster
engagement between the Commission,
applicants, and environmental justice
communities.195
108. NESCOE and Clean Energy
Buyers suggest that the Commission
should ensure that its public
engagement and environmental justice
review practices are generally consistent
and coordinated with applicable State
policies and agencies.196 Joint
Consumer Advocates argue that the
Commission’s proposed approach only
requires applicants to describe outreach
activities and summarize comments,
which largely places the burden on
disadvantaged populations to describe
anticipated impacts to human health or
Integrity Comments at 24.
at 2.
192 Id. at 37–39.
193 ClearPath Comments at 5; Public Interest
Organizations Comments at 87; NESCOE Comments
at 26.
194 NESCOE Comments at 26.
195 Id. at 25–26; Public Interest Organizations
Comments at 89–91.
196 NESCOE Comments at 26; Clean Energy
Buyers Comments at 9.
the environment, rather than engaging
State agencies like consumer advocate
offices.197
3. Commission Determination
109. We adopt the NOPR proposal to
require an Environmental Justice Public
Engagement Plan under § 50.4(a)(4) as a
component of the Project Participation
Plan, with the following modification.
The NOPR proposed that the plan
describe an applicant’s efforts to
identify, engage, and accommodate
‘‘non-English speaking groups and
linguistically isolated communities;’’
however, this final rule updates that
terminology to ‘‘people with limited
English proficiency.’’
110. As an initial matter, we disagree
that requiring applicants to include an
Environmental Justice Public
Engagement Plan as part of its Project
Participation Plan exceeds the
Commission’s statutory authority. NEPA
requires the Commission to evaluate the
environmental impacts of any major
Federal action, such as the issuance of
a permit to site electric transmission
facilities under section 216 of the
FPA.198 The Commission’s obligation to
take a ‘‘hard look’’ at such impacts
under NEPA requires consideration of
impacts on environmental justice
communities, much as it requires the
Commission to consider impacts on
other affected communities.199 This
requirement facilitates the development
of the record, including the
Environmental justice resource report,
that the Commission needs to assess
impacts on environmental justice
communities by providing a roadmap
for applicants’ engagement with
environmental justice communities and
an opportunity for comment on that
engagement. In addition, requiring
applicants to describe engagement with
identified environmental justice
communities will assist the Commission
in meeting its statutory obligations
under FPA section 216. Because
environmental justice communities may
experience environmental impacts more
acutely than other communities or
targeted methods of engagement may be
more effective,200 we appropriately
require that an applicant develop a
190 Policy
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191 Id.
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197 Joint
Consumer Advocate Comments at 18.
U.S.C. 4332(2)(C); see Sierra Club v. FERC,
38 F.4th 220, 226 (D.C. Cir. 2022).
199 See Sierra Club v. FERC, 867 F.3d 1357, 1368
(D.C. Cir. 2017).
200 For example, targeted methods of engagement
may include additional notification to community
leaders, religious institutions, and other community
resources, and the publishing of project information
via community newspapers and radio stations.
198 42
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targeted outreach plan for
environmental justice communities.201
111. Requiring an applicant to
describe its outreach targeted to
environmental justice communities as
part of its Project Participation Plan is
also consistent with the Executive
Orders that direct Federal agencies to
identify and address disproportionate
and adverse human health or
environmental effects of their actions on
minority and low-income populations
(i.e. environmental justice
communities).202 In response to EDF’s
request that we review Executive Order
14096, we note that the new Executive
Order did not rescind Executive Order
12898. The Commission’s current
practices as an independent regulatory
agency are largely consistent with the
principles and goals of Executive Order
14096.203 This requirement is also
consistent with the Commission’s 2022
Equity Action Plan, which promotes
equitable processes and outcomes for
underserved communities, including
environmental justice communities, at
the Commission.204
112. Regarding comments stating that
the proposed Environmental Justice
Public Engagement Plan does not
advance the goal of community
engagement and imposes extensive new
or duplicative requirements, we
disagree. The Commission currently
requires a Project Participation Plan in
§ 50.4(a), which requires applicants to
identify specific tools and actions to
facilitate stakeholder communications
and public information, including those
tools and actions used to engage
stakeholders.205 To advance stakeholder
participation under § 50.4, we are
requiring applicants to plan and target
their outreach to ensure appropriate and
effective meaningful engagement with
201 See E.O. 14096, Revitalizing Our Nation’s
Commitment to Environmental Justice for All, 88
FR 25251, 25252 (Apr. 21, 2023).
202 See E.O. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and
Low-Income Populations, 59 FR 7629 (Feb. 11,
1994); E.O. 14008, Tackling the Climate Crises at
Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O.
13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal
Government, 86 FR 7009 (Jan. 20, 2021); E.O.
14096, Revitalizing Our Nation’s Commitment to
Environmental Justice for All, 88 FR 25251 (Apr.
21, 2023).
203 E.O. 14096, Revitalizing Our Nation’s
Commitment to Environmental Justice for All, 88
FR 25251 (Apr. 21, 2023).
204 FERC, Equity Action Plan (2022), https://
www.ferc.gov/equity.
205 Consistent with the revised definition of
‘‘stakeholder’’ in § 50.1 in this final rule, all
stakeholders mean any ‘‘Federal, State, interstate, or
local agency; any Indian Tribe; any affected
landowner; any environmental justice community
member; or any other interested person or
organization.’’
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potentially affected environmental
justice communities.
113. The requirement to address
targeted outreach to identified
environmental justice communities
merely codifies the expectation that
engagement with stakeholders in
differing circumstances will require
differing approaches in order to be
effective. Therefore, we do not believe
this requirement imposes additional
administrative burden or delay for
applicants. This separate provision aims
to ensure that applicants do not use a
‘‘one size fits all’’ approach to outreach,
and it fosters the inclusion of outreach
techniques that are tailored to
communication with environmental
justice communities.
114. With regard to potential burdens
placed on environmental justice
communities in having to communicate
potential adverse impacts caused or
exacerbated by the project, we
acknowledge this concern and require
applicants to identify the measures
taken to accommodate environmental
justice communities who may face
barriers to traditional outreach or
engagement methods. Additionally, the
Commission’s Office of Public
Participation will continue to engage
with the public and act as a liaison to
members of the public affected by and
interested in Commission proceedings.
115. In response to comments
recommending that the Commission
require the utilization of specific
screening tools to identify
environmental justice communities
such as CEQ’s CEJST, we decline to do
so. The Commission currently uses the
smallest geographic data area available,
census block groups, to identify
environmental justice communities in
accordance with the identification
methodology put forth in Promising
Practices and described above.206 In
contrast, CEJST uses census tracts, a
larger geographic data area, to identify
‘‘disadvantaged communities’’ based on
a variety of thresholds. We decline to
require the use of alternative screening
tools that do not provide a localized
review of smaller environmental justice
communities in block groups. Further,
to the extent that commenters argue that
the Commission should utilize the tools
to expand the definition of
environmental justice communities, we
206 Supra note 166. E.g., ANR Pipeline Co., 185
FERC ¶ 61,191, at P 96 (2023); see also PennEast
Pipeline Co. LLC, 170 FERC ¶ 61,198, at 62,305
(2020) (upholding staff’s reliance on EPA’s EJScreen
Tool to identify census block groups meeting the
definition of an environmental justice community
despite the availability of alternative screening
tools).
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decline for the reasons expressed
addressing definitions below.207
116. We acknowledge the desire
expressed by commenters for specific
guidance for the Environmental Justice
Public Engagement Plan and best
practices for engagement with
environmental justice communities.208
But we find that the provisions of § 50.4
are sufficient to establish applicants’
obligation to prepare a Project
Participation Plan that includes how
they will address outreach to
environmental justice communities.
117. Likewise, we decline to
incorporate policies of States or other
agencies. Such specific practices may
not be universally or practically
applicable across the variety of
applications and contexts relevant to
this rule. Imposing an overly
prescriptive set of requirements
mandating specific methodologies could
negatively impact flexibility needed to
address engagement in the context of a
broad spectrum of applications. Instead,
we believe such practices may more
appropriately be considered as part of
future action by the Commission in
specific proceedings and/or as guidance,
intended to assist applicants to more
effectively implement their regulatory
obligations.
118. We also decline to adopt
requirements mandating specific levels
of engagement as part of this rule.
Again, adopting such requirements is
impracticable given the variety of
applications and related factual contexts
we expect to encounter.
D. Revisions to 18 CFR Part 50
1. Section 50.1—Definitions
119. Section 50.1 sets forth the
definitions for part 50 of the
Commission’s regulations. The
Commission proposed in the NOPR to
add definitions for ‘‘Indian Tribe’’ and
‘‘environmental justice community.’’
The Commission also proposed to revise
the definitions of ‘‘national interest
electric transmission corridor,’’
‘‘permitting entity,’’ and ‘‘stakeholder.’’
Although the Commission did not
propose to revise the definition of
‘‘affected landowners,’’ the NOPR
sought comment on whether the
Commission should revise the
definition to include landowners within
a certain geographic distance from the
proposed project facilities.
207 Infra
P 135.
of this final rule, the Commission has
received comments on best practices for
engagement with environmental justice
communities during the Environmental Justice
Roundtable and filed in Docket No. AD23–5–000.
208 Outside
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46697
120. This final rule adopts a
definition for ‘‘Indian Tribe,’’ as
proposed in the NOPR, consistent with
the Commission’s regulations governing
other types of energy infrastructure
projects.209 We also adopt the definition
of ‘‘permitting entity’’ as proposed in
the NOPR. In addition, we modify
several proposed definitions as further
discussed below.
a. Definition of Environmental Justice
Community
i. NOPR Proposal
121. The Commission in the NOPR
proposed 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.210
Specifically, the Commission proposed
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.’’
ii. Comments
122. Farm Bureaus state that at the
Federal level there is no clear definition
of environmental justice
communities.211 American Chemistry
Council and NESCOE agree and
encourage the Commission to work with
EPA, DOE, and other Federal agencies to
develop one consistent definition for
environmental justice communities, as
the lack of a consistent terminology and
definition across government programs
creates confusion and uncertainty for all
stakeholders.212 ClearPath questions the
legal durability of the Commission’s
definition, particularly if other agencies
adopt different definitions.213 ClearPath
and Chamber of Commerce assert that
adding the definition of ‘‘environmental
justice community’’ may exceed the
Commission’s statutory authority and
expertise, increasing opportunities for
legal challenges.214
209 See, e.g., 18 CFR 4.30(b)(10) (2023) (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).
210 See discussion supra Part II.C.
211 Farm Bureaus Comments at 13.
212 American Chemistry Council Comments at 7;
NESCOE Comments at 27.
213 ClearPath Comments at 4.
214 ClearPath Comments at 4; Chamber of
Commerce Comments at 4.
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123. ClearPath and Representatives
McMorris Rodgers and Duncan assert
that the Commission’s definition of
‘‘environmental justice community’’ is
standardless, such that the term
‘‘overburdened by pollution’’ has
neither a quantitative methodology for
applicants to follow nor a threshold for
a designation to be made in a legally
durable manner.215 ClearPath states that
the Commission makes the definition
open-ended when it states it ‘‘includes,
but may not be limited to minority
populations, low-income populations,
or indigenous people.’’ 216 Chamber of
Commerce states that transmission line
infrastructure is not a source of
‘‘pollution’’ as contemplated under the
Commission’s proposed definition of
‘‘environmental justice community.’’ 217
124. CATF suggests that the proposed
definition of ‘‘environmental justice
community’’ be modified, specifically to
remove the word ‘‘disadvantaged,’’
citing a CEQ memorandum which states
that some communities and advocates
prefer ‘‘overburdened and underserved’’
instead of ‘‘disadvantaged.’’ 218
125. EDF and Policy Integrity state
that the Commission’s definition for
‘‘environmental justice community’’ is
too narrow, risking the omission of
communities that bear disproportionate
environmental burdens beyond
pollution (e.g., flooding) and health
impacts resulting from industry and
infrastructure, or that lack equal access
to environmental benefits (e.g., green
space).219
126. EDF also states that the
Commission’s proposed definition
could be read as limiting the
consideration of communities that can
specifically demonstrate that they have
been historically marginalized or
overburdened by pollution, since it
contains an additional requirement that
the community be a ‘‘disadvantaged
community,’’ without a definition of
that term.
127. Impacted Landowners state that
rural landowners along the center line
of a proposed overhead transmission
project on a new right-of-way should be
considered environmental justice
communities because such landowners
are disadvantaged and marginalized.220
Further, Impacted Landowners suggest
that identification of environmental
justice communities should include
religious affiliation, occupation, age, or
215 ClearPath Comments at 4; Representatives
McMorris Rodgers and Duncan Comments at 2.
216 ClearPath Comments at 4.
217 Chamber of Commerce Comments at 3–4.
218 CATF Comments at 9.
219 EDF Comments at 8; Policy Integrity
Comments at 2.
220 Impacted Landowners Comments at 20.
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those who have been historically
impacted due to numerous energy
infrastructure projects located on their
property.221
128. Los Angeles DWP proposes
defining environmental justice
community as ‘‘a group of people or a
community that is disproportionately
affected by environmental pollution,
hazards, or other environmental risks,
and that may face social, economic, or
political barriers to accessing a healthy
and sustainable environment.’’ 222
129. Public Interest Organizations
recommend revising the Commission’s
proposed definition of environmental
justice community to include ‘‘any
community that is historically
marginalized and/or overburdened by
pollution, including but not limited to
communities with significant
representation of communities of Color,
low-income communities, or Indian
Tribes and Indigenous peoples.’’ 223
Public Interest Organizations also state
that using the term ‘‘communities with
significant representations of
communities of Color,’’ rather than
‘‘minority populations’’ reflects the
Commission’s practice of using the Fifty
Percent Analysis and Meaningfully
Greater Analysis, as recommended in
Promising Practices.
130. Public Interest Organizations also
request that the Commission include a
definition of ‘‘overburdened’’ in
§ 50.1.224 They point to the EPA 2020 EJ
Glossary for the Commission to model
in defining ‘‘overburdened
communities.’’ 225
131. SEIA recommends revising the
Commission’s proposed definition of
‘‘environmental justice community’’ to
‘‘a geographic location with significant
representation of persons of color, lowincome persons, indigenous persons, or
members of Tribal nations, where such
persons experience, or are at risk of
221 Impacted
Landowners Comments at 24.
Angeles DWP Comments at 3.
223 Public Interest Organizations Comments at 81.
224 Public Interest Organizations Comments at 83.
225 The EPA 2020 EJ Glossary defines
‘‘overburdened communities’’ as ‘‘minority, lowincome, tribal, or Indigenous populations or
geographic locations in the United States that
potentially experience disproportionate
environmental harms and risks. This
disproportionality can be as a result of greater
vulnerability to environmental hazards, lack of
opportunity for public participation, or other
factors. Increased vulnerability may be attributable
to an accumulation of negative or lack of positive
environmental, health, economic, or social
conditions within these populations or places. The
term describes where multiple factors, including
both environmental and socio-economic stressors,
may act cumulatively to affect health and the
environment and contribute to persistent
environmental health disparities.’’ EPA, EJ 2020
Glossary (Feb. 2024), https://www.epa.gov/system/
files/documents/2024-02/ej-2020-glossary.pdf.
222 Los
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experiencing, higher or more adverse
human health or environmental
outcomes.’’ 226 SEIA states that this
definition would be quantifiable based
on census data, and can allow all
stakeholders to work from a common
understanding of what would make an
environmental justice community.
iii. Commission Determination
132. The Commission adopts the
definition of ‘‘environmental justice
community’’ as proposed in the NOPR
with one modification, removing
‘‘disadvantaged’’ in the definition, as
further discussed herein.
133. As an initial matter, we disagree
that defining ‘‘environmental justice
community’’ exceeds the Commission’s
legal authority for the same reasons
expressed above.227 Further, we decline
to defer establishing a definition of
‘‘environmental justice community’’
until such time as a universal definition
can be agreed upon by multiple agencies
because the Commission cannot wait to
carry out its statutory responsibilities
under NEPA and section 216 of the
FPA.
134. We are informed by Executive
Order 14008’s focus on communities
that have been historically and
disproportionately marginalized and
overburdened by pollution.228 The term
‘‘environmental justice community’’
includes, but may not be limited to,
minority populations, low-income
populations, or indigenous peoples.229
This definition is substantially the same
definition the Commission has used in
its environmental reviews and orders
pertaining to energy infrastructure
development applications over the last
several years.230 The definition has
allowed the Commission, applicants,
and stakeholders to have a general sense
of the types of communities that may
fall under the term, while the
identification methodology noted
above 231 and in each of the
Commission’s NEPA documents and
Commission orders provides a common
understanding of the steps necessary to
identify environmental justice
226 SEIA
Comments at 12.
PP 110–111.
14008, Tackling the Climate Crises at
Home and Abroad, 86 FR 7619 (Jan. 27, 2021); see
also E.O. 14096, Revitalizing Our Nation’s
Commitment to Environmental Justice for All, 88
FR 25251 (Apr. 21, 2023).
229 See E.O. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and
Low-Income Populations, 59 FR 7629 (Feb. 11,
1994); see also EPA, EJ 2020 Glossary (Feb. 2024),
https://www.epa.gov/system/files/documents/202402/ej-2020-glossary.pdf.
230 See, e.g., Columbia Gas Transmission, LLC,
186 FERC ¶ 61,048, at P 20 n.36 (2024); Andrew
Peklo III, 186 FERC P 61,208, at P 23 n.41 (2024).
231 Supra note 166.
227 Supra
228 E.O.
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communities. To the extent that the
Commission, applicants, or participants
identify additional populations with
environmental justice concerns, the
Commission will address impacts on
these communities in the context of
specific proceedings.
135. We define ‘‘environmental
justice community’’ with the intent of
neither too rigidly limiting nor strictly
defining a set list of demographic
populations or communities. We are
intentionally allowing flexibility in the
definition of ‘‘environmental justice
community,’’ as this acknowledges that
there are many environmental or human
health qualifiers that may need to be
analyzed separately by Commission staff
to determine anticipated impacts on
potential environmental justice
communities. This flexibility is
intended to strike a balance between
applying an identification methodology
that can be used in all proceedings and
allowing the identification of other
populations, during scoping or in
comments filed in the record of
individual proceedings, that may fall
outside of the categories of minority
populations, low-income populations,
or indigenous peoples. We do not agree
that this flexibility renders the
definition practically unworkable, as
applicants seeking to develop energy
infrastructure in other contexts have
been able to use the definition and
identification methodology to
successfully develop and submit the
information that the Commission needs
to process applications.232 Likewise, we
do not agree that the definition of
‘‘environmental justice community’’ is
so expansive that it cannot be readily
understood and applied.
136. Commenters’ assertion that
transmission line infrastructure is not a
source of ‘‘pollution’’ as contemplated
under the definition of ‘‘environmental
justice community’’ is inapposite.
Defining an environmental justice
community as one that has been
overburdened by pollution
acknowledges the historical burdens of
disproportionate rates of pollution faced
by environmental justice
communities.233 We believe that there
are many ways in which transmission
line infrastructure may result in
reasonably foreseeable adverse impacts
on environmental justice communities
during construction, operation, and
maintenance of the project facilities.
137. We acknowledge commenters’
concerns regarding use of the word
232 E.g.,
ANR Pipeline Co., 185 FERC ¶ 61,191 at
‘‘disadvantaged’’ in the definition of
‘‘environmental justice community.’’
Given that the definition of
environmental justice communities
adopted in this final rule includes
language indicating its applicability to
communities that have been historically
marginalized and overburdened by
pollution, we agree that it is not
necessary to include the word
‘‘disadvantaged’’ in the definition and
have removed it in this final rule. We
also decline to adopt a separate
definition for the term ‘‘overburdened’’
or to add ‘‘underserved’’ to the
definition. As explained above, the
proposed definition has allowed the
Commission, applicants, and
stakeholders to have a general sense of
the types of communities that may fall
under the phrase without the need for
further definition or including
additional terms, while the
Commission’s identification
methodology provides a common
understanding of the steps necessary to
identify environmental justice
communities.
138. We decline to adopt the phrase
‘‘communities with significant
representations of communities of
Color’’ because we conclude that the
definition we are adopting is
sufficiently broad to identify
communities that have been historically
marginalized and overburdened by
pollution without that addition. We will
continue our practice of defining
‘‘environmental justice communities’’ as
including, but not being limited to,
minority populations, low-income
populations, or indigenous peoples.
b. Definition of National Interest Electric
Transmission Corridor
i. NOPR Proposal
139. The Commission proposed in the
NOPR to revise the definition of
‘‘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).
ii. Comments
140. While EDF states that the
proposed definition of ‘‘national interest
electric transmission corridor’’ is
appropriate, Farm Bureaus and
Kentucky Commission state that the
definition is too broad, as a National
Corridor could include any geographic
area that has any amount of
congestion.234 Kentucky Commission
requests that the Commission modify
P 96.
233 See E.O. 14008, Tackling the Climate Crises at
Home and Abroad, 86 FR 7619 (Jan. 27, 2021).
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234 EDF Comments at 5; Farm Bureaus Comments
at 2; Kentucky Commission Comments at 3.
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46699
the definition to include a threshold for
congestion, while Farm Bureaus request
that the Commission reopen public
comment on this proposal after DOE has
identified National Corridors.235 EDF
notes that the Commission and DOE
should coordinate to ensure consistent
definitions.
iii. Commission Determination
141. We adopt the definition of
‘‘national interest electric transmission
corridor’’ proposed in the NOPR in this
final rule. As stated in the NOPR, the
Commission proposed changes to the
definition of ‘‘national interest electric
transmission corridor’’ strictly to
incorporate the revisions to the term in
the IIJA’s amendment to section 216(a)
of the FPA, and we continue to find it
appropriate to define this term based on
the statute. Section 216(a) of the FPA
designates the Secretary of DOE as the
sole authority to determine whether a
geographic area is experiencing, or
expected to experience, sufficient
capacity constraints or congestion to
warrant the designation of a ‘‘national
interest electric transmission corridor,’’
and the Commission will defer to DOE’s
interpretation of the statute for those
purposes. Additionally, as the proposed
definition is derived directly from the
statute, it is unnecessary to wait to
finalize this regulation until DOE has
identified a National Corridor.236
c. Definition of Stakeholder
i. NOPR Proposal
142. The Commission in the NOPR
proposed to revise the definition of
‘‘stakeholder’’ for clarity and to ensure
that environmental justice community
members and other interested persons
or organizations are covered by the
definition. As proposed, § 50.1 defines
‘‘stakeholder’’ as 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.
ii. Comments
143. Impacted Landowners state that
grouping severely impacted landowners
235 Kentucky Commission Comments at 3; Farm
Bureaus Comments at 2.
236 In DOE’s recent Guidance on section 216(a),
DOE’s definition of a National Corridor closely
matches the Commission’s proposed definition.
DOE defined a National Corridor as ‘‘. . . a
geographic area where, based on the Needs Study
or other relevant information, DOE has identified
. . . present or expected transmission capacity
constraints or congestion that adversely affects
consumers, and which has been designated by the
Secretary as a [National Corridor].’’ DOE Grid
Deployment Office, Guidance on Implementing
Section 216(a) of the Federal Power Act, at 16 (Dec.
19, 2023).
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with individuals who have generalized
environmental concerns, or project
advocates who will profit from the
project, and considering them all equal
‘‘stakeholders’’ is unfair and unjust.
Impacted Landowners suggest that a
stakeholder should be defined as a
person or entity with an interest in a
project but who will experience no
impacts.237 Niskanen states that the
definition of stakeholder is too broad
and suggests the definition be modified
to include any Federal, State, interstate,
Tribal, or local agency or Tribal
government involved with approving or
whose interests may be affected by the
proposed transmission facilities, and
any environmental justice community
that could be potentially impacted in
some way by a proposed project.238
144. Public Interest Organizations
recommend that the Commission amend
the definition of stakeholder to replace
‘‘Tribal government’’ with ‘‘Indian
Tribe,’’ and that the Commission should
add ‘‘Indigenous peoples’’ to the
definition of stakeholders.239 Public
Interest Organizations explain that the
distinction between Indian Tribes and
any Tribal community member will
preserve the government-to-government
relationship between the Federal
government and Indian Tribes.
Niskanen also notes that the proposed
definition for stakeholder as it relates to
‘‘any Tribal government’’ is inconsistent
with the definition given in § 50.1 of
‘‘Indian Tribe.’’
iii. Commission Determination
145. We adopt the definition of
‘‘stakeholder’’ proposed in the NOPR,
with one modification. We agree with
Public Interest Organizations and
Niskanen that the definition of
‘‘stakeholder’’ should include the term
‘‘Indian Tribe’’ instead of ‘‘Tribal
government,’’ for consistent use of
defined terms in the Commission’s
regulations. Therefore, this final rule
adopts usage of ‘‘Indian Tribe’’ in the
definition of ‘‘stakeholder.’’ Similarly,
the use of ‘‘Tribal government’’ in
applicant notification requirements in
§ 50.4(c)(1) is replaced with ‘‘Indian
Tribe.’’
146. We also decline to limit the
definition of stakeholders to entities that
may be interested but would experience
no impacts from a project, or to only
agencies or governments that would be
affected by a project. The extent of
project-related effects is evaluated and
refined throughout the review process
237 Impacted
Landowners Comments at 22.
Comments at 9–11.
239 Public Interest Organizations Comments at 53–
54.
238 Niskanen
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and may not be well understood early
in the review process when engagement
with stakeholders should begin. Further,
impacts from a project can vary from
direct environmental effects to indirect
effects on users of public spaces to nonenvironmental effects for individuals
who will experience less congestion,
increased reliability of their electric
grid, or rate changes. Further,
Niskanen’s suggested definition would
remove from consideration landowners
or other individuals who do not meet
the definition of affected landowner and
are not members of an environmental
justice community, but who may be
affected by a project. As such, we find
it appropriate to allow any interested
party to be considered a stakeholder.
147. With respect to Public Interest
Organizations’ request to add
‘‘Indigenous peoples’’ to the definition
of ‘‘stakeholder,’’ we note that
Indigenous peoples are considered
stakeholders under the definition
proposed and adopted in this final rule.
d. Definition of Affected Landowner
i. NOPR Proposal
148. In the NOPR, the Commission
did not propose any revisions to the
existing definition of ‘‘affected
landowners’’ in § 50.1, which 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-ofway 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. Nevertheless,
the NOPR sought comment on whether
the Commission should revise the
definition 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.
ii. Comments
149. ClearPath opposes any revisions
to the existing definition of ‘‘affected
landowners,’’ arguing that the
Commission has not provided evidence
that the definition is deficient or that
Congress directed the Commission to
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revise the definition.240 ClearPath also
states that the NOPR fails to address
whether expanding the definition of
‘‘affected landowners’’ would qualify
the additional affected landowners for
compensation under eminent domain,
which may make projects economically
unviable.241
150. Several commenters note that
property tax bills do not list more than
one person even if there are multiple
owners of property, and do not list
tenants with possessory interests. These
commenters request that the
Commission revise the definition of
‘‘affected landowners’’ to include any
person with a legal right or interest in
the property (e.g., a landowner, a
contract purchaser of record, a person
possessing the property under a lease, a
record lienholder, a record
encumbrancer of the property, and
conservation easement holders).242 EDF
and Public Interest Organizations ask
that the Commission clarify the
definition of ‘‘affected landowners’’ as it
relates to Tribal lands, particularly
whether individual Tribal members
residing on trust land satisfy the
definition, and request that Tribes be
included in the definition due to trust
responsibilities.243
151. EDF, Niskanen, Public Interest
Organizations, and SEIA state that the
Commission should use DOE’s
definition of ‘‘affected landowners’’
from its then-current regulations
implementing section 216(h) of the FPA
(i.e., landowners located within either
0.25 miles of a proposed study corridor
or route of a qualifying project or at a
minimum distance specified by State
law, as well as those with a residence
within 3,000 feet of a proposed
construction work area for a qualifying
project),244 because it is broader than
the Commission’s definition and will
provide for regulatory consistency
between the Commission and DOE.245
Public Interest Organizations argue that
240 ClearPath
Comments at 5.
241 Id.
242 EDF Comments at 5; Farm Bureaus Comments
at 2–3; Land Trust Alliance Comments at 2–3.
243 EDF Comments at 5; Public Interest
Organizations Comments at 26–27.
244 10 CFR 900.3 (2023). On May 1, 2024, DOE
issued a final rule revising its regulations
implementing section 216(h) of the FPA that,
among other things, revises this definition and
removes the distance criteria. See DOE,
Coordination of Federal Authorizations for Electric
Transmission Facilities, 89 FR 35312 (May 1, 2024).
Regarding the revised definition to be codified at 10
CFR 900.2, DOE provides that a ‘‘potentially
affected landowner’’ is one whose real property
interest is potentially affected directly or indirectly
by a proposed project. 89 FR 35340. DOE’s final
rule is effective on May 31, 2024.
245 EDF Comments at 6; Niskanen Comments at
6–9; Public Interest Organizations Comments at 25–
26.
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limiting affected landowners to those
within 50 feet of proposed facilities fails
to provide surrounding residents and
communities the opportunity to
meaningfully participate in the
permitting process, and may cause
landowners beyond this distance to feel
marginalized, which may add
unnecessarily high regulatory and
litigation risks.246
152. Impacted Landowners request
that the Commission use the term
‘‘impacted landowners’’ instead of
‘‘affected landowners,’’ noting that it is
the degree of impact, not an arbitrary
distance, that creates an impacted
landowner.247 Niskanen indicates that
the current definition does not
adequately consider visual impacts or
light pollution and subsequent
devaluation of property.248 EDF and
Land Trust Alliance suggest that the
Commission use the results of a visual
impact assessment to identify affected
landowners, and define ‘‘affected
landowners’’ as any landowner whose
viewshed or ecosystem services may be
affected.249 Conversely, ClearPath
argues that broadly expanding the
affected landowner definition to anyone
whose viewshed is affected could
include properties up to 17 miles away
and that the resource report addressing
visual impacts in an application
requires evaluating visual effects
without the need to increase the affected
landowner definition.250
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iii. Commission Determination
153. We continue to find the
definition of affected landowner in our
existing regulations appropriate and
adopt no changes.
154. In response to ClearPath’s
concern that changing the definition
might mean additional landowners
would be entitled to compensation, we
note that section 216(f) of the FPA
provides that any right-of-way acquired
for construction or modification of
transmission facilities through the use
of eminent domain is considered a
taking of private project for which just
compensation is due. Whether a
landowner is entitled to just
compensation under section 216(f) is in
no way connected to how the
Commission’s regulations define an
affected landowner.
155. As part of the Commission’s
review process, we seek to ensure that
landowners are given an opportunity to
246 Public
Interest Organizations Comments at 25–
26.
247 Impacted
Landowners Comments at 21.
Comments at 6–9.
249 EDF Comments at 6; Land Trust Alliance
Comments at 3.
250 ClearPath Comments at 5.
248 Niskanen
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submit comments and participate in the
Commission proceeding. Therefore, the
definition of ‘‘affected landowners’’ is
meant to encompass owners of property
that: are proposed to be crossed by the
project, are most likely to be affected by
minor route adjustments or variations
that may occur to avoid or minimize
impacts to sensitive resources based on
environmental survey results, or may be
impacted by construction activities
conducted in close proximity. The
definition of ‘‘stakeholder’’ is then
intended to capture other landowners
and parties who may have an interest in
a project or may be otherwise affected
by a project and can inform the
Commission’s review of an application.
156. We acknowledge the numerous
requests for a broader and more
inclusive definition of an affected
landowner (e.g., to include lessees,
multiple property owners, conservation
easement holders) but decline to adopt
such a definition. The definition of
‘‘affected landowners’’ sets forth the
scope of other regulatory obligations,
including specific notification
requirements, and applicants must have
a practicable means of determining
which entities fall within the scope of
the definition. We find that there are not
sufficient means for an applicant to
readily identify a broader set of entities,
as proposed by commenters,
particularly for lengthy proposed
transmission lines. The existing
definition of ‘‘affected landowners’’ is
practicable and likely to identify most
entities with interests in the property.
While a Tribe or member of a Tribe
would not be an affected landowner if
they occupy lands held in trust by the
United States, a Tribe or member of a
Tribe may qualify as an affected
landowner if they occupy land that is
not held in trust by the United States
and otherwise meet the definition.251
157. While there are numerous
requests for larger geographic bounds to
be used in the definition, we decline to
modify the definition in this manner.
Commenters suggest such a
modification is necessary to ensure a
broader group of stakeholders who may
be impacted by a proposed project are
251 We note that with regard to the Commission’s
trust responsibilities, Tribes are afforded additional
outreach and consultations consistent with the
Commission’s consultation practices under its
Tribal Consultation Policy, as well as the
Commission’s trust responsibilities and
government-to-government relationships with
Tribes. Pol’y Statement on Consultation with Indian
Tribes in Comm’n Procs., Order No. 635, 68 FR
46452 (Sept. 5, 2033), 104 FERC ¶ 61,108 (2003),
revised, Order No. 863, 84 FR 56940 (Oct. 24, 2019)
169 FERC ¶ 61,036 (2019). The policy statement is
codified at 18 CFR 2.1c (2023). These activities do
not depend on whether Tribal members are
‘‘affected landowners.’’
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46701
aware of and have an opportunity to
share their views on the proposal. We
note, however, that the applicant must
also notify all landowners with a
residence within a quarter mile of the
edge of the construction right-of-way
under the notification requirements in
§ 50.4(c)(1). Moreover, stakeholders do
not need to be an affected landowner or
live in a residence within a quarter mile
of the proposed site to participate in the
Commission’s proceedings. Under the
definition of ‘‘stakeholder’’ in § 50.1,
any interested entity or person may file
comments as a stakeholder and
participate in the Commission’s prefiling and application processes. We
believe that the existing definition of
‘‘affected landowners’’ and existing
quarter mile notification requirement
provides individuals with appropriate
notification of a proposed project to
allow an opportunity to participate in
Commission proceedings.
158. Although some commenters
argue that the definition of affected
landowners should include landowners
who may be impacted by visual or other
project effects, the geographic extent of
impacts will vary by region and project,
and it is therefore difficult to identify a
bright-line definition that could be used
by an applicant to identify landowners
who may experience visual impacts
shortly after the commencement of the
pre-filing process (when initial
notifications to affected landowners
must occur). Proposed transmission
projects will be subject to NEPA, and
the environmental effects of a project
(including visual impacts) will be
analyzed and addressed through the
NEPA process. The NEPA and FPA
processes include opportunities for
landowners and other stakeholders to
participate in the review process and
comment on anticipated effects of a
project, including visual impacts.
2. Section 50.3—Filing and Formatting
Requirements
159. Section 50.3 establishes the filing
and formatting requirements for
submissions in the Commission’s prefiling and application processes. In the
NOPR, the Commission proposed 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 waste, the
Commission proposed that applicants
only be required to make these
submissions in electronic format. We
received no comments regarding this
proposed change. This final rule adopts
§ 50.3 as proposed.
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3. Section 50.4—Stakeholder
Participation
a. Project Participation Plan
i. NOPR Proposal
160. The Commission explained in
the NOPR that § 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 about
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. In the NOPR, the
Commission proposed to revise
§ 50.4(a)(1) to incorporate minor
clarifying language and 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 proposed to require an
applicant to develop and file an
Environmental Justice Public
Engagement Plan as part of its Project
Participation Plan under § 50.4(a) early
in the pre-filing process.252
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ii. Comments
161. Arizona Game and Fish
recommends that § 50.4’s Project
Participation Plan include a
requirement for applicants to consult or
coordinate with specific entities, such
as State wildlife or natural resource
agencies.253 Maryland Commission
urges that county and municipal
governments affected by a proposed
transmission line be given the
opportunity to participate fully in the
Commission’s proceeding and provide
recommendations.254
162. The Yurok Tribe requests that the
Commission require applicants to
develop a Tribal Participation
Engagement Plan in the pre-filing
process, similar to the Environmental
Justice Public Engagement Plan.255
iii. Commission Determination
163. We adopt the NOPR proposal to
revise the Project Participation Plan
requirements to incorporate minor
clarifications, specify that an applicant’s
website must include an interactive
mapping component, and include an
Environmental Justice Public
252 See
discussion supra Part II.C.
Game and Fish Comments at 2–3.
254 Maryland Commission Comments at 8.
255 Yurok Tribe Comments at 27–28.
253 Arizona
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Engagement Plan and a Tribal
Engagement Plan.
164. Regarding requests to include
coordination and consultation
requirements for State, county and local
agencies or governments in the Project
Participation Plan, we do not believe
such changes are needed. As further
discussed below, the § 50.4(c) project
notification requirements adopted in
this final rule extend to, among others,
permitting entities and other local,
State, and Federal governments and
agencies involved in the project, which
include the entities that Arizona Game
and Fish and Maryland Commission
suggest. The project notification
requirements inform recipients how to
participate in the Commission’s
proceeding, including opportunities to
provide recommendations to the
Commission and how to contact the
applicant. Local agencies and
governments are typically included on
project stakeholder mailing lists, as they
are stakeholders as defined by § 50.1,
who receive Commission notices
regarding opportunities to submit
comments, attend meetings and site
visits, and participate in the pre-filing
and application phases; and we
encourage their participation. The
Commission will consider comments
submitted by any State, county, or local
agencies during the processing of an
application.
165. We adopt the Yurok Tribe’s
suggestion to require applicants to
address outreach targeted to Indian
Tribes, similar to the requirement to
include an Environmental Justice Public
Engagement Plan in an applicant’s
Project Participation Plan. Requiring
applicants to develop a plan to identify
and engage Tribal communities will
facilitate the development of the record,
including the Tribal resources resource
report as discussed below, which the
Commission needs to assess impacts on
Indian Tribes. Therefore, new
§ 50.4(a)(5) requires an applicant to
include a Tribal Engagement Plan as a
component of the Project Participation
Plan that addresses all outreach that is
targeted to identified Tribes, including a
summary of comments from potentially
affected Tribes in previous outreach, a
description of planned Tribal outreach
activities, and a description of how the
applicant will engage Tribes about
potential mitigation measures.256
256 We note that this new provision of the Project
Participation Plan does not affect and is separate
from the Commission’s consultation practices under
its Tribal Consultation Policy, as well as existing
trust responsibilities and government-togovernment relationships with Tribes. Order No.
635, 104 FERC ¶ 61,108, revised, Order No. 863, 169
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b. Project Notification Requirements
i. NOPR Proposal
166. Section 50.4(c) sets forth the
project notification requirements for
applicants. Section 50.4(c)(1) requires
applicants to distribute, by mail and
newspaper publication, project
notifications within specified time
periods, first, following commencement
of the pre-filing process and, second,
after 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. In the NOPR, the
Commission proposed to revise
§ 50.4(c)(1) for clarity and to ensure that
applicants provide notification of the
proposed project to all interested
individuals and organizations. The
NOPR also sought comment on whether
a quarter-mile limit is sufficient and, if
not, what geographic distance should be
used and why.
167. Section 50.4(c)(2)(i) describes the
required contents of the Pre-filing
Notification. For clarity, in the NOPR,
the Commission proposed
organizational changes in the
regulations to distinguish the
requirements that pertain to any Prefiling Notification that is sent by mail or
published in a newspaper (proposed
§ 50.4(c)(2)(i)) from the requirements
that pertain to any Pre-filing
Notification that is sent by mail
specifically to an affected landowner
(proposed § 50.4(c)(2)(ii)).
168. The Commission in the NOPR
proposed to add a requirement that any
Pre-filing Notification 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). The Commission also
proposed in the NOPR to require that
any Pre-filing Notification 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.
169. In the NOPR, the Commission
explained that it expects applicants to
make a good faith effort to ensure that
individuals and organizations entitled
to receive project notifications can
comprehend the contents of such
notifications. Accordingly, the NOPR
FERC ¶ 61,036. The policy statement is codified at
18 CFR 2.1c (2023).
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directed applicants to consider the need
for project notifications in languages
other than English as part of the
Environmental Justice Public
Engagement Plan, as described above.
The NOPR also sought comment on
what methods of notification beyond
mail and newspaper publication might
be utilized in order to effectively reach
the largest possible number of
stakeholders.
ii. Comments
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170. Public Interest Organizations and
Niskanen suggest that the Commission
require the two applicant project
notifications in § 50.4(c) to include
information on how to become an
intervenor in a Commission proceeding
and the consequences of failing to
intervene, namely, lacking standing to
petition for rehearing and pursue
judicial review of an order issued by the
Commission.257 Public Interest
Organizations also request that
§ 50.4(c)(2)(iii) of the Commission’s
regulations be modified to require
inclusion of the Landowner Bill of
Rights in the Application Notification
required under § 50.4(c)(1)(i)(B),258 and
further urge the Commission to consider
changes to § 50.4(c)(2)(i) to require that
the pre-filing notice clearly state how
affected landowners and other
stakeholders can participate in the prefiling process in order to make the
communities feel heard, support the
applicant in meeting landowner needs,
and reduce legal risks.259
171. The existing regulations in
§ 50.4(c)(1)(ii) require applicants to
publish a notification of the pre-filing
request and application filings in
newspapers of general circulation. Some
commenters suggest that the
Commission modify this requirement to
include other methods of notice, such as
social media, popular internet sites,
local digital newspapers, online-only
publications that serve a local interest,
neighborhood listservs and community
web pages, utility web pages, and
including a QR code on notices that
directs the reader to an appropriate web
page.260 CLF and EDF encourage
requiring the notices be posted in a
range of locations in the community
(e.g., churches, mosques, temples,
community centers, public parks, post
257 Public Interest Organizations Comments at 18;
Niskanen Comments at 17–18.
258 Public Interest Organizations Comments at 32
and 38.
259 Id. at 13–14.
260 CLF Comments at 7; ELCON Comments at 4;
Michigan PSC Comments at 10; SEIA Comments at
11; Los Angeles DWP Comments at 5.
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offices, and schools) where transmission
projects are proposed.261
172. Public Interest Organizations
recommend that the Commission’s
newspaper notification requirements in
§ 50.4(c)(2)(i)(B) be modified to include
the website address for the
Commission’s pamphlet Electric
Transmission Facilities Permit
Process.262 Niskanen states that the
Commission should create accessible
online and paper versions of the
pamphlet, written in layperson’s terms
and should include: the scope of the
Commission’s transmission siting
authority; what findings the
Commission must make to approve a
project; an explanation as to how to
obtain ongoing, accurate project
information from the Commission; clear
contact information for the Office of
Public Participation; basic, step-by-step
descriptions of the Commission’s prefiling and application processes; and a
description of how to participate in
these processes, including clear, bolded
instructions on when, why, and how to
become an intervenor in the relevant
proceeding.263
173. Impacted Landowners and SEIA
request that § 50.4(c)(2) require the
notices be written in plain language.264
Several commenters suggest that notices
be provided in multiple languages.265
Impacted Landowners and ACEG
request that the notices contain a
summary of rights a landowner has in
reference to the Federal eminent domain
laws that would be applicable, instead
of just the State laws proposed for
reference in the NOPR.266
174. Public Interest Organizations and
the Yurok Tribe state that the
Commission should develop
standardized language that all
applicants must include in each notice
under § 50.4(c) that clearly explains the
Commission’s processes, all necessary
deadlines, and the purpose and
consequences of intervening or seeking
rehearing.267 Public Interest
Organizations and the Yurok Tribe also
suggest that these standard notices
explain the roles of the Commission’s
Office of Public Participation, Tribal
Liaison, and the Environmental Justice
261 CLF
comments at 7; EDF Comments at 12.
Interest Organizations Comments at 33.
263 Niskanen Comments at 14.
264 Impacted Landowners Comments at 23; SEIA
Comments at 11.
265 SEIA Comments at 11; NESCOE Comments at
28–29; Impacted Landowners Comments at 23;
Public Interest Organizations Comments at 30.
266 Impacted Landowners Comments at 23; ACEG
Comments at 17–18.
267 Public Interest Organizations Comments at 17–
18; Yurok Tribe Comments at 25.
262 Public
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46703
Liaison,268 and how to contact each of
them.269 Finally, Public Interest
Organizations ask that the Commission
revise its standard notice to clarify the
different ways interested persons may
participate in the pre-filing process, in
which restrictions on off-the-record (ex
parte) communications do not apply.
175. Public Interest Organizations and
the Yurok Tribe suggest that the
Commission change its requirement
under § 50.4(c)(1)(i)(A) for mailing
notification of the pre-filing process.
Specifically, they ask that the Pre-filing
Notifications be mailed within 3
business days after the Director of the
Commission’s Office of Energy Projects
notifies the applicant of the
commencement of the pre-filing
process, instead of within 14 days as
currently required.270 The Yurok Tribe
states that there is no justification for
the existing 14-day period and that
Tribes and stakeholders should be given
as much time as possible to prepare and
participate through an earlier
notification.
176. CLF and NESCOE assert that not
all residents own the property in which
they reside and request that project
notifications under § 50.4(c)(1) be sent
to residents (e.g., renters/lessees) in
addition to the landowners.271
177. The Chickahominy Indian Tribe,
Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe state that Tribes
should be included in the Stakeholder
Participation section of the proposed
regulations regardless of whether the
Tribes are already involved in a project
and should be addressed separately
from, or as a required element of, the
Environmental Justice Public
Engagement Plan.272 Specifically, the
Tribes, as well as the Yurok Tribe, state
that proposed § 50.4(c)(1) appears to
limit the requirement to notify Tribes to
those who are already involved in a
project, and they suggest that the
Commission should amend its
regulations to require that project
268 Public Interest Organizations recommend that
the Commission establish Environmental Justice
Liaisons as non-decisional staff within the Office of
Public Participation. Public Interest Organizations
Comments at 89–90. While the Commission has a
Senior Counsel for Environmental Justice and
Equity and an Environmental Justice and Equity
Group within the Office of General Counsel, it does
not currently have an Environmental Justice
Liaison.
269 Public Interest Organizations Comments at 30;
Yurok Tribe Comments at 26.
270 Public Interest Organizations Comments at 28–
29; Yurok Tribe Comments at 26.
271 CLF Comments at 6–7; NESCOE Comments at
28.
272 Chickahominy Indian Tribe, Nansemond
Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe Comments at 2.
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notifications are sent to all Tribes with
ancestral or current-day lands that may
experience impacts from the project.273
178. Conversely, ClearPath suggests
that § 50.4(c)(1) should remove the
word, ‘‘all,’’ which immediately
precedes the entities that an applicant is
required to notify, asserting that
requiring applicants to notify ‘‘all’’
listed entities would put the applicant
at risk for unnecessary litigation and
may incur unnecessary delay.274
Similarly, Niskanen suggests removing
the word ‘‘any’’ from the § 50.4(c)(1)
requirement that applicants notify ‘‘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 (emphasis added).’’ 275
Niskanen argues that requiring
applicants to notify ‘‘any’’ individual or
organization that has merely expressed
an interest in a proposed project may
invite protracted legal challenges to any
given project.276 Niskanen also asserts
that the Commission should be
responsible for ensuring that all
stakeholders are properly accounted for
and sent notice through the applicant,
and should create an accountability
mechanism for applicants to follow up
on undeliverable notifications.277
179. ACP and ACEG question how the
Commission will consider notification
requirements in the instances of route
changes, particularly ones that occur
relatively late in the Commission’s
proceeding.278 ACP states that
applicants would have complied with
the Applicant Code of Conduct and
conducted early outreach, and,
therefore, should not be required to
restart the notice and comment periods
in instances of reroutes. ACEG suggests
notifying landowners along alternative
routes earlier in the process or allowing
for an expedited notice and comment
process if newly impacted parties are
identified.
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iii. Commission Determination
180. To support the Commission’s
good faith efforts determinations under
the IIJA’s amendment to section
216(e)(1) and make needed clarifications
to the Commission’s existing project
notification requirements under
273 Chickahominy Indian Tribe, Nansemond
Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe Comments at 3;
Yurok Tribe Comments at 26.
274 ClearPath Comments at 6.
275 Niskanen Comments at 12.
276 Id.
277 Id. at 13.
278 ACP Comments at 14; ACEG Comments at 15.
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§ 50.4(c), we adopt the NOPR proposal,
with modifications. Specifically, we
revise § 50.4(c) to address confusion
over the use of the terms ‘‘notice’’ and
‘‘notification.’’ We also revise
§ 50.4(c)(1)(ii) to expand newspaper
publication requirements to reach a
broader audience and revise
§ 50.4(c)(2)(i)(B) to require applicants to
include the website address for the
Commission’s pamphlet Electric
Transmission Facilities Permit Process
in newspaper publications to improve
accessibility of information regarding
the Commission’s processes. We revise
§ 50.4(c)(1)(i)(C) to include a new
requirement for applicants to mail
project notifications in other languages
under certain circumstances. Finally, to
reflect that we are not adopting the
NOPR’s proposal to allow simultaneous
processing, we adjust the required
contents of the participation notification
concerning information about State
siting proceeding(s) in § 50.4(c)(2)(i)(H).
181. As an initial matter, we recognize
that § 50.4(c)’s interchangeable and
intermittent use of ‘‘notice’’ and
‘‘notification’’ may have created
confusion for commenters, some of
whom conflated § 50.4(c)’s notification
requirements for applicants with the
Commission’s notice requirements as
described in § 50.9. Accordingly, we
make minor consistency edits
throughout § 50.4(c) to consistently use
the term ‘‘notification’’ to apply
exclusively to applicants’ obligation to
provide certain information, and the
term ‘‘notice’’ to apply exclusively to
Commission-issued notices.
Additionally, we clarify which
provisions in § 50.4(c) apply to Prefiling Notifications versus Application
Notifications.
182. We decline commenters’ requests
to revise § 50.4(c) to require additional
information in Applicant Notifications
concerning intervening in Commission
proceedings. We find that the proposed
revisions to § 50.4(c), as modified in this
final rule, will adequately inform those
affected landowners and other
stakeholders interested in becoming
parties to a Commission proceeding of
the Commission’s processes and timing
for filing motions to intervene. Although
there is no intervention period during
the pre-filing process, as no application
is before the Commission, the
regulations in § 50.4(c)(2)(i)(G) already
require an applicant’s Pre-filing
Notifications to include information
explaining the Commission’s pre-filing
and application processes and when
and how to intervene in application
proceedings. Following the
commencement of the pre-filing
process, applicants will be required
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under § 50.4(c)(2)(ii)(B)—as adopted
herein—to include a copy of the
Landowner Bill of Rights, which notifies
recipients of their right to intervene in
any open Commission proceeding,
within the Pre-filing Notification mailed
to affected landowners.
183. We decline Public Interest
Organizations’ request to require that
the Landowner Bill of Rights be
provided in the Application Notification
required by § 50.4(c)(1)(i)(B) to be
distributed within 3 business days after
the Commission publishes notice of the
application under § 50.9. As discussed
above, under proposed
§ 50.4(c)(2)(ii)(B), as adopted herein, the
Landowner Bill of Rights must be
included in an applicant’s mailed Prefiling Notification. Proposed § 50.4(c)(3)
also requires applicants to provide the
Landowner Bill of Rights in instances
where affected landowners are
identified after the initial notifications
are mailed. Therefore, we find that all
affected landowners will be provided a
copy of the Landowner Bill of Rights
and, as such, it is not necessary to
provide it again with the Application
Notification.
184. We agree with commenters’
recommendations that the Commission
include additional requirements in
§ 50.4(c) for the publication of
notifications in media beyond
newspapers of general circulation.
There are accessibility limitations
inherent in relying solely on any single
media platform, whether print
publications or electronic, for
notification of Commission proceedings,
and no single media platform is
reasonably assured of reaching a general
audience across varying geographical
locations. Therefore, we revise
§ 50.4(c)(1)(ii) to expand the publication
requirements for applicant notifications
beyond newspaper print publications.
Specifically, we require that in addition
to newspaper print publications,
applicant notifications be published in
other online or hard copy periodicals of
general circulation serving the affected
area, as appropriate. These notifications
must also be submitted to any available
county and municipal government
online bulletin boards and other similar
community resources.
185. We also agree with Public
Interest Organizations that the
applicant’s Pre-filing Notifications
should include the website address for
the Commission’s Electric Transmission
Facilities Permit Process pamphlet.
Thus, we revise § 50.4(c)(2)(i)(B) to
adopt this requirement. However, we
decline at this time to adopt Niskanen’s
recommendations to include certain
information in the pamphlet. The
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pamphlet will be updated to reflect the
requirements of this final rule and will
be posted to the Commission’s public
website when available.
186. We agree with Impacted
Landowners and SEIA that applicant
notifications should be written to be
readily understood by the public. We
also agree with commenters that
notifications should be provided in
multiple languages. Therefore, we add a
new provision in § 50.4(c)(1)(i)(C) to
require applicants to mail project
notifications in languages other than
English under certain circumstances.
Our approach is intended to ensure that
applicants provide meaningful
notification to people with limited
English proficiency who are affected
landowners or landowners within a
quarter mile of the right-of-way.
187. Under this new notification
requirement in § 50.4(c)(1)(i)(C),
applicants may be required to include
written translations of the applicant’s
notifications to affected landowners and
landowners with residences located
within a quarter mile from the edge of
the construction right-of-way for a
proposed project. To determine whether
written translations are required,
applicants must identify the
landowners’ census block groups,
ascertain whether any of the census
block groups include people with
limited English proficiency, and, for
each census block group, identify the
languages spoken by people with
limited English proficiency. For each
language identified in the census block
group that accounts for five percent of
households or 1,000 persons,279
whichever is less, applicants must
include written translation of the
applicant’s notifications with the
applicant’s mailed notifications to all
landowners entitled to notification
within that census block group. The
U.S. Census American Community
Survey’s 5-year estimates include the
information needed to identify the
number of limited English proficiency
households, similar to the information
collected for identifying environmental
justice communities.
188. We retain the existing
requirement that any Pre-filing
Notification mailed to an affected
landowner include a brief summary of
the specific rights the landowner has in
proceedings under the eminent domain
laws of the relevant State. We decline
commenters’ suggestion that this
notification should instead include a
279 The number of people with limited English
proficiency within the census block group level
may be estimated using the census tract’s average
household size.
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summary of Federal eminent domain
law. Section 216(e)(1) of the FPA allows
permit holders to bring an eminent
domain proceeding in the appropriate
court in the Federal district or the State
in which the property is located.280
Section 216(e)(3) provides that the
practice and procedure in any eminent
domain proceeding in Federal district
court must conform as nearly as
practicable to the practice and
procedure in a similar proceeding in the
applicable State court.281 Thus, if an
eminent domain proceeding is initiated
in Federal district court, the court will
determine the appropriate procedures
for individual proceedings. For this
reason, and because the rules governing
eminent domain proceedings may vary
by State, we find it most helpful for the
Pre-filing Notification required to be
sent by the applicant to contain a brief
summary of the landowner’s rights
under the eminent domain laws of the
relevant State.
189. We decline commenters’ requests
to adopt standardized language in
applicant notifications under § 50.4(c).
Commission-issued notices in the prefiling and application review processes
will convey standardized information
about the Commission’s processes and
identify applicable deadlines for
comments and intervention. In addition,
much of the information that Public
Interest Organizations request be
included in the standard notifications
will be addressed via guidance or
informational brochures, like in the
Electric Transmission Facilities Permit
Process pamphlet that applicants must
provide with their notification of
commencing the pre-filing process.
190. We also note that Commission
notices typically explain the role of and
provide contact information for the
Office of Public Participation, which
can be a helpful resource for
stakeholders who need assistance
understanding how to participate in
Commission matters, including
stakeholders with environmental justice
concerns. In addition, Commission staff
issue separate letters to engage Indian
Tribes, which typically contain the
contact information for the
Commission’s Tribal Liaison, project
manager, and assigned project
archaeologist who will be most familiar
with the project and able to address
Tribal questions. These Commission
notices and letters sufficiently provide
landowners, Tribes, and stakeholders
with opportunities and support for
engagement.
280 16
281 Id.
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824p(e)(3).
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46705
191. We decline Public Interest
Organizations’ and the Yurok Tribe’s
suggestions to modify § 50.4(c)’s timing
requirements with respect to mailing
project notifications. The Commission
carefully considered the timing and
coordination for each notification in the
Order No. 689 rulemaking proceeding
and proposed no changes to the
deadline for applicants to mail required
notifications in the NOPR. We continue
to find no changes are necessary. The
Director’s notice under § 50.5(d)
commences the pre-filing process for a
project and triggers numerous
additional applicant requirements (e.g.,
finalizing a Project Participation Plan,
refining the mailing list for the Pre-filing
Notification, finalizing a contract with
the selected third-party contractor, and
notifying permitting entities). Given the
numerous obligations triggered by the
commencement of the pre-filing
process, we find it appropriate to allow
applicants 14 calendar days from the
Director’s notice date to send the Prefiling Notification. We believe that this
will result in more accurate
notifications.
192. We decline CLF’s and NESCOE’s
requests to modify § 50.4(c)(1) to require
that project notifications must be mailed
to ‘‘residents.’’ As explained above in
our discussion of the definition of
‘‘affected landowner,’’ we find that there
are insufficient means to readily
identify residents (e.g., renters/lessees),
particularly across potentially hundreds
of miles of transmission line.
Accordingly, we will continue to
require notifications based on the
landowner identified in tax records.
However, under § 50.4(c)(1) as adopted
herein, residents who are not identified
in tax records may express interest in a
project to be added to the applicant’s
mailing list as stakeholders so that they
can receive project notifications.
193. We agree with the Chickahominy
Indian Tribe, Nansemond Indian
Nation, Rappahannock Indian Tribe,
and Upper Mattaponi Indian Tribe, as
well as the Yurok Tribe, that applicants
should include Tribes whose ancestral
or current-day lands may be affected by
a project in their required notifications,
regardless of whether the Tribes are
already involved in a project. Within the
notification requirements of § 50.4(c)(1),
we adopt a minor revision to the
placement of ‘‘Indian Tribe’’ within the
list of entities to be notified to remove
applicability of the qualifier ‘‘involved
in the project’’ to Indian Tribes. With
this modification, applicants must
notify Indian Tribes regardless of any
prior involvement in the project.
194. We disagree with ClearPath’s and
Niskanen’s recommendations to modify
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§ 50.4(c)(1) to remove reference to the
terms ‘‘all’’ and ‘‘any,’’ respectively.
Although § 50.4(c)(1) requires the
applicant to make a good faith effort to
notify all listed entities,282 it is
generally understood that project
mailing lists will evolve throughout the
pre-filing process as additional entities
learn about a project and express
interest. During the pre-filing process,
we expect applicants to make all
reasonable efforts to ensure that
interested stakeholders have been made
aware of the proposed project. In
addition, § 50.4(c)(4), as proposed in the
NOPR and adopted herein, requires
applicants to make reasonable attempts
to find the correct address and re-send
the notification if it is returned as
undeliverable.
195. Regarding questions from ACP
and ACEG about how the Commission
will consider notification requirements
in the instances of late route changes,
we note that § 50.4(c)(3), as proposed in
the NOPR and adopted herein, provides
that if, for any reason, a person or entity
entitled to receive these project
notifications has not yet been identified
when the notifications are sent or
published, the applicant must provide
the required information at the time the
person or entity is identified. This
provision applies where new
landowners are identified as ‘‘affected
landowners’’ subject to route changes.
The Commission addresses reopening of
comment periods due to reroutes on a
project-specific basis, generally to
account for numerous factors (e.g., if
new landowners are involved in the
reroute, whether those landowners have
been involved in the project to date,
whether landowners requested the
reroute on their property, where in the
process a project is, and upcoming
opportunities for landowner input). The
Commission will issue revised notices
with applicable comment periods when
appropriate for a given reroute on a
project.
c. Landowner Bill of Rights
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i. NOPR Proposal
196. As part of the Project Notification
requirements, in the NOPR, the
Commission proposed to add a
requirement that any Pre-filing
Notification 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). The NOPR sought
comment on a draft version of the
282 18
CFR 50.4(c)(1).
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Landowner Bill of Rights provided in
the Appendix to the NOPR. The
Commission explained that requiring
the applicant to provide this document
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.
ii. Comments
197. Pennsylvania Commission states
that, regardless of whether simultaneous
or consecutive review processes at the
State and Commission occur,
landowners are likely to be
overwhelmed and confused about where
and when to participate, particularly
after receiving multiple notices for each
process and, in some cases, State
versions of a Landowner Bill of Rights
in addition to the Commission’s.283
Thus, instead of mandating mailing
specifically the Commission’s
Landowner Bill of Rights, Pennsylvania
Commission suggests establishing the
Landowner Bill of Rights as a
recommended framework and allowing
applicants to adapt and modify the
Landowner Bill of Rights, with
encouraged coordination with the State,
to have a single Landowner Bill of
Rights for a project.284
198. Public Interest Organizations and
Niskanen suggest that the Commission
amend the Landowner Bill of Rights to
require applicants to negotiate with
landowners in good faith early in the
permitting process as a prerequisite for
receiving eminent domain authority.285
Public Interest Organizations also ask
that the Commission add language to
the Landowner Bill of Rights stating that
the applicant may also not misrepresent
the status of discussions or negotiations
between itself and landowners or any
other party and must communicate
respectfully, avoiding harassing,
coercive, manipulative, or intimidating
communications or high-pressure
tactics.286
199. Farm Bureaus note that the
Landowner Bill of Rights does not
require applicants to provide any
information, but instead informs
landowners of the ‘‘right to access’’
certain information concerning the
applicant and project. Farm Bureaus
state that the Landowner Bill of Rights
should require the applicant to furnish
this information rather than burden
283 Pennsylvania
Commission Comments at 8–10.
at 9–10.
285 Public Interest Organizations Comments at 40;
Niskanen Comments at 15.
286 Public Interest Organizations Comments at 40.
284 Id.
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landowners with seeking it
themselves.287
200. In addition, several commenters
recommend changes to the Landowner
Bill of Rights to better inform
landowners about specific rights.
Specifically, Public Interest
Organizations and NESCOE suggest
adding language explaining why
compensation may be required, what
eminent domain is, and how the Federal
eminent domain process works.288
Impacted Landowners request the
Commission add plain language to the
Landowner Bill of Rights explaining
that landowners are not required to
negotiate easement agreements written
by transmission line owners without
advice from counsel.289 Public Interest
Organizations and Farm Bureaus ask
that the Landowner Bill of Rights clarify
the difference between participation in
the Commission’s pre-filing versus
application phase and how landowners
can participate in each process.290
201. Public Interest Organizations and
Niskanen ask that the Commission grant
intervenor status to all landowners that
comment in a proceeding or, in the
alternative, explain in the Landowner
Bill of Rights that affected landowners
lose their right to challenge any
Commission order or authorization of
the project if they do not intervene in
the Commission docket and become a
party to the proceeding.291
iii. Commission Determination
202. In this final rule, we adopt the
NOPR proposal to require applicants to
provide a copy of the Commission’s
Landowner Bill of Rights to affected
landowners with their Pre-filing
Notification. A final version of the
Landowner Bill of Rights is attached to
this final rule, with no changes from the
draft version included in the NOPR
except for the addition of a toll-free
telephone number for the Commission’s
Office of Public Participation, and we
will include an electronic copy on the
Commission’s public website for
reference.
203. We decline commenter
suggestions to afford applicants
flexibility to modify the Landowner Bill
of Rights. The purpose of the
Landowner Bill of Rights is to ensure
that affected landowners are informed
in a consistent manner of their rights in
dealings with the applicant and in
287 Farm
Bureaus Comments at 10.
Interest Organizations Comments at 39;
NESCOE Comments at 29–30.
289 Impacted Landowners Comments at 22–23.
290 Public Interest Organizations Comments at 40;
Farm Bureaus Comments at 10.
291 Public Interest Organizations Comments at 33
and 41; Niskanen Comments at 15–16.
288 Public
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Commission proceedings. Allowing
applicants to develop their own
document, as the Pennsylvania
Commission suggests, could produce
the uncertainty and confusion that the
Landowner Bill of Rights seeks to avoid.
204. We decline to amend the
Landowner Bill of Rights to include
requirements for applicants in their
negotiations and interactions with
landowners because we find such
revisions unnecessary. The Landowner
Bill of Rights is intended to inform
landowners, in plain language, about
landowner rights and about actions
landowners can take in a Commission
proceeding, but it does not establish
requirements for applicants to follow.
Refraining from certain misconduct in
communications with landowners,
avoiding misrepresenting the status of
discussions or negotiations, and
avoiding harassing, coercive,
manipulative, or intimidating
communications are factors the
Commission may consider as part of its
good faith efforts determinations.
205. We disagree with Farm Bureaus’
assumption that the Landowner Bill of
Rights requires landowners to seek
information. The Pre-filing and
Application Notification requirements
in § 50.4(c) require the applicant to
provide information to landowners,
including about the location and
schedule of the project and their rights.
We believe that these requirements
afford landowners ready access to
central information about a project.
206. We decline to modify the
Landowner Bill of Rights to incorporate
a summary of the eminent domain
process. The eminent domain process
may vary State to State and including
generic language in the Landowner Bill
of Rights that would be applicable
across all States would be less useful
than the summary of the eminent
domain laws of the relevant State that
applicants must include in the Pre-filing
Notification that is sent by mail to
affected landowners under
§ 50.4(c)(2)(ii)(C). Further, the
Landowner Bill of Rights explains that
landowners have the right to receive
compensation if their land is necessary
for construction of a proposed project
and that the amount of compensation
would be determined through a
negotiated easement agreement or
through an eminent domain proceeding
in the appropriate Federal or State
court.
207. With respect to commenters’
request that the Commission include
language about landowners’ rights in
negotiating easements and hiring legal
counsel, we note that the Landowner
Bill of Rights already informs
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landowners of their rights to negotiate
easement agreements, hire legal counsel,
and hire their own appraiser or other
professional to assist in any easement
negotiations. Therefore, we find no need
to modify the Landowner Bill of Rights
on these topics.
208. We also decline to include
provisions distinguishing the pre-filing
and application review processes in the
Landowner Bill of Rights. With the
exception of filing a motion to
intervene, which is clearly identified as
an activity that may only occur after an
application is filed, none of the other
rights listed in the Landowner Bill of
Rights are contingent on the project’s
phase.
209. Finally, we decline to grant
intervenor status to all landowners that
comment in a proceeding. A landowner
may not wish to intervene or become a
party to the proceeding. Additionally,
we find that our project notification
requirements at § 50.4(c)(2)(i), which
require applicants to provide access to
the Commission’s Electric Transmission
Facilities Permit Process pamphlet and
information explaining when and how
to intervene in a proceeding, will afford
sufficient information about the steps to
participate in a Commission proceeding
and become an intervenor.
d. Office of Public Participation
Involvement
i. NOPR Proposal
210. In the NOPR, the Commission
did not propose any changes to the role,
function, or duties of the Commission’s
Office of Public Participation.
ii. Comments
211. Environmental Law and Policy
Center and CLF ask that the
Commission direct its Office of Public
Participation, Tribal Liaison, and
Environmental Justice Liaison 292 to
develop best practices for facilitating
stakeholder engagement that, at a
minimum, would ensure notification to
environmental justice communities
affected by proposed projects; provide
meaningful opportunities to participate,
including opportunities for the public to
provide written and oral comments to
the Commission; provide resources and
technical assistance, including plain
language summaries and translated
materials as needed; and provide
environmental justice engagement
recommendations on a project-byproject basis that are tailored based on
affected communities and anticipated
292 As explained above, Environmental Justice
Liaison is a position that does not currently exist
at the Commission. See supra note 268.
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46707
environmental justice impacts.293 CLF
also suggests that applicants be required
to consult with the Office of Public
Participation when developing both the
Environmental Justice Public
Engagement Plans and the
Environmental justice resource report to
help ensure that applicants adequately
consider any impacts on environmental
justice communities and conduct
comprehensive outreach to
environmental justice communities.294
212. Public Interest Organizations
recommend that the Office of Public
Participation engage with any
stakeholder that submits comments in a
State proceeding to explain the
Commission’s pre-filing process and
siting process.295 Additionally, Public
Interest Organizations and the Yurok
Tribe request that the Commission
require applicants to file with the
Commission any comments received in
State-level proceedings.296 The Yurok
Tribe also suggests that the Commission
require applicants to provide the State
commissions with copies of any
comments submitted in the
Commission’s proceeding.
iii. Commission Determination
213. We do not find it is necessary to
have a requirement for applicants to
engage with the Office of Public
Participation when developing the
Environmental Justice Public
Engagement Plan or the Environmental
justice resource report. The Office of
Public Participation is able to engage
with applicants regarding best practices
for stakeholder communications and
outreach activities, in general, including
meaningful early engagement with
potentially affected environmental
justice communities. However, the
Office of Public Participation can
neither review nor comment on
applicant drafts or documents in
contested proceedings.
214. With respect to the Office of
Public Participation creating best
practices on environmental justice
engagement, we find that the Pre-filing
and Application Notification
requirements in § 50.4(c) and Project
Participation Plan requirements in
§ 50.4(a), which would include the
Environmental Justice Public
Engagement Plan filing requirement we
are adopting in this final rule, afford
adequate notification of key information
about the project, information about
opportunities to participate in the pre293 Environmental Law and Policy Center
Comments at 5; CLF Comments at 11.
294 CLF Comments at 7–8.
295 Public Interest Organizations Comments at 15.
296 Id. at 14; Yurok Tribe Comments at 27.
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filing process and any Commission
proceeding, and address how applicants
plan to accommodate people with
limited English proficiency. These
notifications and plans are tailored to
the specific project and unique
circumstances of any environmental
justice communities that may be
affected by a project and are the more
appropriate means for Commission staff
to provide feedback or support to an
applicant in developing outreach efforts.
215. We decline to adopt commenters’
recommendations requiring the Office of
Public Participation’s involvement in
State-level proceedings. The Office of
Public Participation’s role is to support
stakeholders that have expressed
interest in engaging in the Commission’s
processes, not other agency or State
processes. Additionally, requiring the
Office of Public Participation to engage
with all stakeholders that provide
comments in a State proceeding would
be infeasible. Project notifications
required in § 50.4(c) and the Project
Participation Plan required in § 50.4(a)
ensure that stakeholders have sufficient
notification of the proposed project and
opportunities to provide their views on
the project during the pre-filing and
application review processes.
216. We also decline to require that an
applicant file with the Commission the
comments submitted in a State-level
proceeding or file with the relevant
State commissions comments placed in
the Commission’s record. We do not
presume that commenters intend to
have their comment filed with the
Federal and State entities without their
permission.
e. Tribal Consultation Policy
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i. NOPR Proposal
217. In the NOPR, the Commission
did not propose any changes to the
Commission’s Tribal consultation
policy.297
and intervenor compensation.299 The
Yurok Tribe notes that the Inflation
Reduction Act allocated $100 million to
the Commission to assist in
environmental reviews, including
stakeholder engagement, and that these
funds should go to support Tribal
participation.
219. To more fully meet the
Commission’s trust obligations,
commenters urge the Commission to
create a Tribal Advisory Committee to
advise on all Commission interactions
with Tribes and to recommend changes
to Commission policies and establish a
better relationship with Tribes.300
Similarly, these commenters ask that the
Commission clarify and revise the role
of the Commission’s Tribal Liaison to be
non-decisional, help facilitate the
process to receive Tribal funds, support
Tribal consultation and participation,
and be located within the Commission’s
Office of Public Participation.301
220. The Yurok Tribe suggests several
changes to Commission Tribal
consultation practices and recommends
the adoption of a new Tribal
Consultation Policy with opportunity
for Tribes to review and comment on a
draft of the policy.302 The Yurok Tribe
states that Tribes should have an
opportunity to comment on whether an
action requires consultation and be
allowed to initiate consultation if the
Commission fails to begin consultation.
The Yurok Tribe also recommends that
Tribes be afforded an opportunity to
have a pre-meeting with Commission
staff prior to a consultation meeting to
allow for clarifying questions. After a
consultation meeting, the Yurok Tribe
suggests that the Commission follow up
with Tribes to confirm next steps,
schedule additional meetings, and
advise the Tribe of the results of
consultation.
iii. Commission Determination
221. While we appreciate Public
Interest Organizations’ and the Yurok
ii. Comments
Tribe’s comments on the distribution of
218. The Yurok Tribe and Public
dedicated resources to enable Tribal
Interest Organizations state that the
participation, the creation of a Tribal
Commission must adopt a stronger
Advisory Committee, the role of the
Tribal consultation policy.298 The Yurok Commission’s Tribal Liaison, and
Tribe also believes that the Commission proposed revisions to the Commission’s
should provide dedicated resources
Tribal Consultation Policy are all related
within the Office of Public Participation to broader Commission consultation
to support consultation with and enable practices across all project types, rather
participation by Tribes. The Yurok Tribe than requirements that would apply to
and Public Interest Organizations
an applicant under FPA section 216,
suggest that the Commission provide
299 Yurok Tribe Comments at 19–20 and 37;
funding to support Tribal participation
297 Order
No. 635, 104 FERC ¶ 61,108, revised,
Order No. 863, 169 FERC ¶ 61,036. The policy
statement is codified at 18 CFR 2.1c (2023).
298 Yurok Tribe Comments at 6–7 and 14–15;
Public Interest Organizations Comments at 55–58.
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Public Interest Organizations Comments at 58–60.
300 Yurok Tribe Comments at 20–21; Public
Interest Organizations Comments at 63–64.
301 Yurok Tribe Comments at 20–23; Public
Interest Organizations Comments at 60–63.
302 Yurok Tribe Comments at 15–17.
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and are therefore beyond the scope of
this final rule.
222. We also note that applicants are
required to send a Pre-filing Notification
to all Indian Tribes whose interest may
be affected by the proposed project with
initial project information and how to
participate in the Commission’s process.
Commission staff also reaches out to
potentially affected Tribes, initiates
government-to-government
consultation, and opens public
comment periods as part of the review
process. Tribes may use any of the
available opportunities to comment on
whether an action requires consultation
and may request to initiate consultation
at any time. As such, we find no
changes to the Commission’s regulations
are necessary.
4. Section 50.5—Pre-Filing Procedures
a. Congestion-Related Information
i. NOPR Proposal
223. 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. In the
NOPR, the Commission proposed 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
Applicant Code of Conduct (proposed
§ 50.5(c)(9)).
224. 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. In the NOPR, the
Commission proposed clarifications to
§ 50.5(e)(3) and (4) to ensure
consistency with the project notification
requirements in § 50.4(c). The
Commission also proposed 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
FPA section 216(b)(4).303 Specifically,
within 30 days of the notice
commencing the pre-filing process, the
303 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. 16 U.S.C. 824p(b)(4).
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Commission proposed to require an
applicant to file a draft version of
Exhibit H, System analysis data,
required by § 50.7 (proposed
§ 50.5(e)(9)). In addition to a draft
version of Exhibit H, the Commission
also proposed to require an applicant to
file additional supporting information
showing how the proposed project will
reduce capacity constraints and
congestion on the transmission system,
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) and
(8)).
ii. Comments
225. ACEG suggests that the
requirement to submit a full system
impact report early in the pre-filing
process is unnecessary and
unreasonable.304 It argues that the
system impact study can take more than
a year to complete and that the level of
detail required may not be available at
the early pre-filing stage.305
Accordingly, ACEG recommends that
the Commission revise this requirement
so that an applicant need only provide
a status report on the system impact
study during pre-filing, as opposed to
the study itself.306 ACEG believes this
would likely achieve the Commission’s
goal of ensuring appropriate
consideration of the proposed project’s
impact on the safety and reliability of
the transmission system while also
avoiding unnecessary delays.307
Additionally, ACEG states that the
proposed requirements that an applicant
file, early in the pre-filing process, a full
system impact study report (§ 50.5(e)(8))
and a draft version of Exhibit H
(§ 50.5(e)(9)) are duplicative. ACEG
recommends deleting paragraph (e)(9)
and specifying in paragraph (e)(8) that a
status report, rather than a full report of
the system impact study, is sufficient.308
226. Likewise, Impacted Landowners
state that it is unclear who is
responsible for preparing the detailed
description of how the proposed project
will reduce capacity constraints and
congestion on the transmission system
that, as proposed in the NOPR, would
be submitted as part of an application
(proposed Exhibit H in § 50.7(h)(3)).309
Impacted Landowners recommend that
this information be verified by
304 ACEG
Comments at 10.
at 10.
306 Id. at 11.
307 Id.
308 Id. at 11–12.
309 Impacted Landowners Comments at 11–13.
305 Id.
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independent, impartial entities with
expertise in transmission planning, such
as Regional Transmission
Organizations/Independent System
Operators (RTO/ISO).310 They urge the
Commission to ‘‘make a clear
determination of who has authority to
determine these factors [for
transmission capacity and congestion
determinations] and apply them evenly
across the board.’’ 311
iii. Commission Determination
227. We adopt the NOPR proposal for
§ 50.5 in this final rule, with the
following modifications in response to
commenter feedback. With regard
specifically to the congestion supporting
information requirements detailed in
proposed § 50.5(e)(8) and (e)(9), we are
modifying the timeline associated with
the submission of this information so
that applicants will have a greater
degree of flexibility as they navigate the
pre-filing process.
228. We disagree with ACEG that the
requirement that an applicant submit a
full system impact study report during
pre-filing is unnecessary and
unreasonable. Upon entry into the
Commission’s pre-filing process, we
expect that most applicants will have
already completed a system impact
study for the proposed project to
identify the constraints, mitigation, and
transmission upgrades that will
significantly reduce transmission
congestion. However, the Commission
does not intend for completion of the
study report to be a barrier to applicants
that otherwise would be ready to enter
into and benefit from the pre-filing
process. Therefore, applicants who have
already completed a full system impact
study are required to submit the full
system impact study report at initiation
of pre-filing; however, applicants who
have not completed the study report can
submit a status report of the system
impact study instead of the full report.
Commission staff will review this status
report and communicate with the
applicant to establish a submission
deadline for the full system impact
study report during the pre-filing
process.
229. Additionally, the draft version of
Exhibit H is not duplicative of the
system impact study report, but rather
complementary and essential to
contextualizing and verifying the
report’s findings. The system impact
study report contains the narrative
approach to the modeling and
conclusions, while draft Exhibit H
requires the actual power flow cases
310 Id.
311 Id.
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46709
utilized as inputs into the report. Draft
Exhibit H also includes system analysis
data, such as model input files and the
assumptions, criteria, and guidelines
upon which the models are based and
which take into consideration
transmission facility loading (planned
and forecasted forced outages).
Commission staff can use draft Exhibit
H data to replicate and validate the
models and assumptions in the
applicant-provided system impact study
report. However, as draft Exhibit H is
not useful to the Commission until the
full system impact study report is
submitted, an applicant must submit
draft Exhibit H within 30 days of
submission of the full system impact
study report and not within 30 days of
the notice commencing the pre-filing
process. The pre-filing process will not
be concluded until the full system
impact study report and draft Exhibit H
is submitted and staff has had sufficient
time to review and validate the report
and data.
230. In response to requests for
clarification regarding which entity may
prepare information under § 50.7(h)(3),
we clarify that applicants are
responsible for submitting to the
Commission the requisite pre-filing
materials, including the detailed
description of how the proposed project
will address transmission capacity
constraints and congestion. We decline
to limit the information that may be
submitted to support a finding under
FPA section 216(b)(4) based upon who
prepared the information, as a wide
range of information from different
sources may be relevant depending on
the factual circumstances. Commission
staff will review all submitted
information and request additional
information, as necessary, to ensure that
any filed application is complete and
contains sufficient information for the
Commission to determine whether the
proposed project will significantly
reduce transmission congestion in
interstate commerce and protects or
benefits consumers, as required by FPA
section 216(b)(4).
b. Regional Transmission Planning
Information
i. NOPR Proposal
231. Proposed § 50.5(c)(8) would
require an applicant to include in its
pre-filing request a detailed description
of how the proposed project will reduce
capacity constraints and congestion on
the transmission system. In addition,
within 30 days of the notice
commencing the pre-filing process,
proposed § 50.5(e)(7)(i) would require
an applicant to submit the most recent
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regional transmission plan for each
transmission planning region that
would be crossed by the proposed
project. Finally, under proposed Exhibit
H in § 50.7, any application must
include an analysis of how the project
will: improve system reliability over the
long and short-term; impact long-term
regional transmission expansion plans;
impact congestion on the applicant’s
entire system and neighboring systems;
and incorporate any advanced
technology design features, if
applicable.312
ii. Comments
232. Joint Consumer Advocates
request that the Commission require an
applicant to explain in its pre-filing
consultation whether an RTO or ISO has
identified the project as necessary to
address a need identified through a
regional transmission planning process,
arguing that this will ensure projects
submitted through the FPA section 216
process are limited to those necessary to
address congestion issues.313 Joint
Consumer Advocates also ask the
Commission to revise § 50.5(c) to
require that an applicant’s pre-filing
request address the proposed project’s
cost effectiveness (i.e., the project’s
benefits and costs to the consumer).314
233. Relatedly, EEI states that the
Commission should require applicants
to demonstrate during pre-filing that the
project meets a clear need and is not
duplicative of other proposed or
existing transmission projects.315 EEI
further recommends that the
Commission consult with the relevant
transmission planning entities to ensure
that the proposed project supports
system reliability.316
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iii. Commission Determination
234. We adopt the NOPR proposal
concerning regional transmission
planning information in § 50.5(e)(7) and
§ 50.5(c), with minor terminology
clarifications, given that the relative
benefits and costs of a project can take
a variety of forms. Further, we clarify
that the requested analysis in Exhibit H
in § 50.7 of how the proposed project
will impact congestion on the system
where it will be located as well as
neighboring systems will apply to
neighboring systems only when relevant
to the individual proposed project.
235. We decline commenters’ requests
to require an applicant to explain in the
pre-filing consultation whether an RTO
312 NOPR,
181 FERC ¶ 61,205 at PP 41, 45.
Consumer Advocates Comments at 13.
314 Id. at 13.
315 EEI Comments at 8.
316 Id. at 8.
313 Joint
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or ISO has identified the project as
necessary to address a need identified in
a regional transmission planning
process. While we expect that, in many
cases, an applicant may indicate in its
pre-filing submissions whether the
proposed transmission project has or
has not been identified as necessary to
meet a need identified by a regional
transmission planning process, we do
not find it necessary to revise the
regulations to specify that an applicant
must provide this information during
the initial consultation. Additionally,
§ 50.5(e)(7)(i) requires an applicant to
submit regional transmission plans, and
this information will likely provide
insight into whether a project was
deemed necessary to meet a regional
need. We further note that a proposed
transmission project may not always be
identified by an RTO or ISO through its
regional transmission planning process,
or included in a regional transmission
plan, such as a merchant transmission
project. In such circumstances, the
applicant must nevertheless
demonstrate early in the pre-filing
process how the proposed project will
reduce capacity constraints and
congestion on the transmission system,
as required under § 50.5(c)(8) and (e)(7).
236. We similarly decline a request to
require under § 50.5(c) submission of
specific information regarding the
proposed project’s cost-effectiveness.
Under § 50.6(f), an applicant is required
to include a demonstration that the
proposed facility meets each of the
statutory standards under section FPA
section 216(b)(2)-(6) for the Commission
to issue a permit, including the
requirement under section 216(b)(4) that
a proposed project ‘‘protects or benefits
consumers.’’ While evidence related to
the project’s cost-effectiveness would be
relevant to the Commission’s
consideration of the statutory standards
under FPA section 216(b), information
about the relative benefits and costs of
a project could take a variety of forms.
Accordingly, we decline to modify
§ 50.5 to require submission of
particularized information, and
assessment of the adequacy of
information to demonstrate the statutory
standards under section FPA 216(b) will
occur on a case-by-case basis.
237. We do not find it necessary to
codify a process for consulting with
relevant transmission planning entities
to ensure that a proposed project
supports system reliability. As
previously stated, we agree that
determinations of an independent
entity, such as an RTO or ISO, should
be afforded due weight in the
Commission’s assessment of whether a
particular project is needed to protect or
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benefit consumers.317 Therefore, we will
consider any such independent
determinations as a factor, along with
all other relevant factors, in determining
whether the statutory criteria have been
met.
c. Existing Rights-of-Way Information
i. NOPR Proposal
238. The Commission did not propose
any requirements related to rights-ofway data or analysis under § 50.5.
ii. Comments
239. Rail Electrification Council and
Impacted Landowners request that, as
part of the pre-filing submittals required
by § 50.5, applicants be required to
provide information related to the
consideration, availability, and use of
railroad rights-of-way or any other
relevant existing rights-of-way to site all
or a portion of a project.318
iii. Commission Determination
240. We decline to modify § 50.5 to
require submission of additional
information about the consideration and
availability of existing rights-of-way. An
applicant is already required to identify
certain information about the use of
existing-rights-of-way as part of the
resource reports that applicants must
submit in draft form during the prefiling process. Specifically, in the Land
use, recreation, and aesthetics resource
report discussed further below,
applicants must identify where
construction or permanent rights-of-way
will be adjacent or overlap existing
rights-of-way (proposed § 380.16(l)(1)).
Additionally, in the Alternatives
resource report discussed further below,
applicants must submit information on
the consideration of alternatives to the
proposed project, including their
relationship to existing rights-of-way.
d. State Permitting Information
i. NOPR Proposal
241. The Commission’s existing
regulations in § 50.5(e)(3)(iii) require
applicants to notify permitting
entities 319 and request information on
material not required by the
Commission’s resource reports under
§ 380.16 that permitting entities may
require to reach a decision on the
proposed project. The NOPR proposed
317 Order
No. 689, 117 FERC ¶ 61,202 at P 44.
Electrification Council Comments at 9–12;
Impacted Landowners Reply Comments at 8.
319 As proposed in the NOPR and adopted herein,
the term permitting entity means any Federal or
State agency, Indian Tribe, or multistate entity that
is responsible for issuing separate authorizations
under Federal law that are required to construct
electric transmission facilities in a National
Corridor.
318 Rail
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to redesignate paragraph (e)(3)(iii) as
(e)(3)(ii) but made no changes to the
substance of this existing requirement.
ii. Comments
242. Joint Consumer Advocates
request that applicants be required, as
part of the initial consultation meeting
under § 50.5(b), to identify any
differences between the filing
requirements for the Commission and
applicable States, and then provide any
additional information required in the
State process during the pre-filing
process.320
243. Joint Consumer Advocates also
request that the monthly status reports
required under § 50.5(e)(11) include
details on the associated State(s)
permitting proceeding(s) and that
stakeholders be allowed to review the
monthly status reports and, if necessary,
file comments with the Commission.321
Joint Consumer Advocates believe this
would allow the Commission to
determine if an applicant is fully
engaged in the State permitting
proceeding.
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iii. Commission Determination
244. We decline to modify § 50.5 to
require submission of information
required under State law. The initial
consultation meeting and pre-filing
request are initial steps to enter the prefiling process and are intended to
introduce a project to Commission staff
and ensure applicants have sufficient
information or project development to
begin engaging with Commission staff.
We do not find it necessary to modify
§ 50.5 to require submission of
information that is unnecessary for that
purpose, and which may or may not be
relevant to Commission determinations
under FPA section 216(b). Any entity,
including a State, may file copies of
information considered in a related
State proceeding for consideration in
the Commission’s proceeding.
245. Similarly, we decline to modify
the monthly status report requirements
in § 50.5(e)(11) because we find the
requested changes unnecessary. The
monthly status reports already require
applicants to detail the applicant’s
project activities, agency and Tribal
meetings, and updates on the status of
other required permits or
authorizations. The regulations also
require that the monthly status reports
be filed with the Commission, and
therefore will be available for
stakeholders to review.
320 Joint
Consumer Advocates Comments at 10–
11.
321 Id.
at 10.
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5. Section 50.6—General Content of
Applications
a. NOPR Proposal
246. Section 50.6 describes the
information that must be provided as
part of an application for a permit under
FPA section 216. In the NOPR, the
Commission proposed to revise § 50.6(c)
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). The Commission also
proposed to revise § 50.6(d) to specify
that verification that the proposed route
lies within a DOE-designated National
Corridor must include the date of
designation.
247. Under existing § 50.6(e), each
application must also demonstrate that
one of the jurisdictional bases set forth
in FPA section 216(b)(1) applies to the
proposed facilities. As discussed above,
the NOPR proposed revisions to
§§ 50.6(e)(1) and (3) to ensure that the
Commission’s regulatory text tracks the
IIJA’s amendments to FPA sections
216(b)(1)(A) and (C), respectively.322
248. In addition, existing § 50.6(f)
provides that each application must
demonstrate that the proposed facilities
meet the statutory criteria in FPA
sections 216(b)(2) through (6),
including, as relevant here, that the
proposed construction or modification
is consistent with the public interest.
The NOPR did not propose any changes
to § 50.6(f).
b. Comments
249. Several commenters ask the
Commission to clarify how it would
determine whether the proposed
facilities are consistent with the public
interest, as required by FPA section
216(b)(3).323 North Carolina
Commission and Staff urge the
Commission to explicitly require
applicants to demonstrate, either in prefiling or in the application, that the
proposed project serves the public
interest.324 For example, North Carolina
Commission and Staff provide a list of
public interest criteria that, in its view,
applicants should be required to
demonstrate, including that the project’s
expected benefits to ratepayers are
roughly commensurate with its costs;
that consumers are protected from risks
of project abandonment; that the project
is consistent with system needs as
demonstrated in Commission-mandated
322 Supra
P 15.
North Carolina Commission and Staff
Comments at 12–15; Sabin Center Comments at 2,
5; Yurok Tribe Comments at 9–13.
324 North Carolina Commission and Staff
Comments at 13.
323 E.g.,
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46711
planning processes and, if applicable,
State integrated resource plans; that the
project is preferable to reasonably
available alternatives that would reduce
congestion (e.g., additional generation,
non-wires alternatives, and other lessintrusive or less-costly transmission
projects); and that the project will
enhance reliability.325
250. The Yurok Tribe states that the
public interest standard under FPA
section 216(b)(3) requires the
Commission to consider, minimize, and
mitigate impacts on Tribal resources.326
The Yurok Tribe urges the Commission
to adopt a presumption that projects
denied by States on the basis of adverse
Tribal impacts are not in the public
interest.327
251. Texas Commission states that
there is no requirement that a Federal
application include a State’s final order
denying an application and argues that
it would be inefficient and burdensome
for the States to have to recapitulate the
entirety of its reasoning for denying an
application in its comments in the
Federal proceeding. Therefore, Texas
Commission requests that the
Commission expressly require that an
application filed under FPA section
216(b)(1)(C)(iii) include a copy of the
State’s final and non-appealable order
denying approval of the application.328
Further, Texas Commission requests
that the Commission adopt a policy that,
upon request of a State commission or
the applicant, the record in the
Commission’s proceeding include the
record in the State proceeding.329
c. Commission Determination
252. This final rule adopts the
revisions to § 50.6 as proposed in the
NOPR. We decline to further revise this
section based on commenters’
suggestions, as discussed below.
253. Consistent with the
Commission’s position in Order No.
689, we decline to adopt an exclusive
list of factors or a bright-line test to
determine whether a project meets the
statutory criteria for issuing a permit in
FPA sections 216(b)(2) through (6),
including the requirement to
demonstrate that a proposed project is
consistent with the public interest.330
As the Commission explained in Order
No. 689, in reviewing a proposed
project, the Commission will consider
all relevant factors presented on a caseby-case basis and balance the public
325 Id.
at 14.
Tribe Comments at 9–12.
327 Id. at 12–13.
328 Texas Commission Comments at 13.
329 Texas Commission Comments at 14.
330 Order No. 689, 117 FERC ¶ 61,202 at P 41.
326 Yurok
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benefits against the potential adverse
consequences. The Commission will
also conduct an independent
environmental analysis of the project as
required by NEPA, including reasonable
alternatives to the proposed project. The
Commission will review the proposed
project and determine if it reduces
transmission congestion and if it will
protect or benefit consumers. The
Commission will also consider the
impact that the proposed facility will
have on the existing transmission grid
and the reliability of the system.
254. The Commission will also
consider the adverse effects the
proposed facilities will have on Tribes,
landowners, and local communities.
After evaluating the entire record of the
proceeding and due consideration of the
issues raised, the Commission will
determine if the proposed project meets
the criteria in FPA section 216(b). The
Commission’s review of a proposed
project will be a flexible balancing
during which it will weigh the factors
presented in the project proceeding. The
Commission will also impose
appropriate conditions necessary to
mitigate adverse effects on the relevant
interests from the construction and
operation of a proposed project and will
approve the project only where the
public benefits to be achieved from the
project outweigh the adverse effects.
255. Regarding Texas Commission’s
request that an application filed under
FPA section 216(b)(1)(C)(iii) include a
copy of the State’s final and nonappealable denial order, the
Commission, in revised § 50.6(e)(3)(iii),
requires an applicant to provide
evidence that a State commission, or
other entity that has the authority to
approve the siting of facilities, has
denied an application. In circumstances
where a State denial triggers the
Commission’s jurisdiction, we expect
that most applicants would file a copy
of the State’s denial order as this would
likely be the best evidence that the State
had denied the applicant’s siting
application. If an applicant does not
submit to the Commission a copy of the
State’s denial order, the State may
choose to file a copy as part of its
comments on the application or
Commission staff may direct the
applicant to file it. Therefore, we do not
believe that the requested change to the
Commission’s regulations is necessary.
256. We also decline to adopt a policy
that the State record be incorporated
into the record of the Commission’s
siting proceeding upon a State
commission’s or applicant’s request. To
the extent that the Commission may
find certain elements of the State siting
proceeding useful in its decision-
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making process, it will request this
information, as needed, on a case-bycase basis. We do not believe that
incorporating the State record in its
entirety into the Commission’s record as
a general rule is necessary as it would
require the submission and review of
information that may not be relevant.
6. Section 50.7—Application Exhibits
a. NOPR Proposal
257. 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. In the
NOPR, the Commission proposed
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)).
258. The Commission also proposed
revisions to § 50.7(h), which describes
the requirements for Exhibit H—System
analysis data. Specifically, in the
NOPR, the Commission proposed 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)).
b. Comments
259. ACEG recommends that the
Commission modify § 50.7(g)(8) to
clarify that the relevant information
‘‘may be provided through the state
filing process,’’ i.e., through the filing of
an application with the State.331
c. Commission Determination
260. This final rule adopts the
revisions to § 50.7 as proposed in the
NOPR. This information will enable
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). We note that applicants may
also file additional information to
contextualize the required analyses. We
331 ACEG
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decline to revise § 50.7(g), as ACEG
suggests, to clarify that the information
required under § 50.7(g)(8) may be
provided through the State filing
process. Section 50.7(g)(8) directs an
applicant to include any other
engineering 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 as part of its Exhibit G filing. We
interpret ACEG’s recommendation to
mean that the Commission rely on
information provided by an applicant
through a separate State filing process
rather than requiring the applicant to
identify and file with the Commission
any other information identified by the
State as a minimum siting requirement.
While in many cases an application
filed with the State would likely include
the necessary information to satisfy
§ 50.7(g)(8), this may not always be the
case. Moreover, we find it is necessary
that any additional engineering
information that the State identifies as
a minimum siting requirement be
identified in Exhibit G and filed as part
of the Commission record.
7. Section 50.11—General Permit
Conditions
a. NOPR Proposal
261. Section 50.11 lists the general
conditions that would apply to any
permit issued under part 50 of the
Commission’s regulations. In the NOPR,
the Commission proposed to clarify
§ 50.11(a) and (b) and proposed 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.332 The Commission
explained that the proposed addition,
which mirrors a regulation that the
Commission previously adopted in the
natural gas pipeline context,333 would
ensure that construction of approved
transmission facilities does not begin
during the 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
332 NOPR,
181 FERC ¶ 61,205 at PP 46–47.
Limiting Authorizations to Proceed with
Construction Activities Pending Rehearing, Order
No. 871, 85 FR 40113 (July 6, 2020), 171 FERC
¶ 61,201 (2020), order on reh’g, Order No. 871–B,
86 FR 26150 (May 5, 2021), 175 FERC ¶ 61,098,
order on reh’g, Order No. 871–C, 176 FERC ¶ 61,062
(2021).
333 See
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denied by operation of law.334 The
Commission stated that this revision is
intended to balance the Commission’s
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.335
b. Comments
262. Chamber of Commerce,
American Chemistry Council, and
ClearPath disagree with the proposed
revisions to § 50.11. American
Chemistry Council states that the
provision would delay action on needed
investment.336 Similarly, ClearPath
argues that projects with a likelihood of
approval following a rehearing process
should be timely developed and project
developers should bear the risk of
commencing construction while a
rehearing request is pending.337
Chamber of Commerce asserts that
delaying the effectiveness of a final
Commission order pending rehearing is
inconsistent with the FPA’s provision
stating that the filing of an application
for rehearing does not operate as a stay
of the Commission’s order.338
263. On the other hand, CATF, EDF,
and Public Interest Organizations
support the proposed addition to
§ 50.11(d).339 CATF believes that
holding construction pending rehearing
to resolve challenges to project
construction and need builds trust in
the permitting process.340 While Public
Interest Organizations agree with the
requirement in § 50.11(d), they
recommend that the Commission clarify
that, before issuing a permit, the
Commission will ensure that the
applicant has obtained all necessary
Federal and State permits and not
authorize any activities that would take
private property or alter the
environment.341
c. Commission Determination
264. We adopt the revisions to § 50.11
as proposed in the NOPR. We are not
persuaded by arguments that precluding
issuance of authorizations to proceed
with construction of transmission
facilities during certain limited periods
of time would result in undue delay of
334 NOPR,
181 FERC ¶ 61,205 at P 47.
335 Id.
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336 American
Chemistry Council Comments at 4.
Comments at 6.
338 Chamber of Commerce Comments at 6 (citing
16 U.S.C. 825l(c)).
339 CATF Comments at 12; EDF Comments at 15;
Public Interest Organizations Comments at 139.
340 CATF Comments at 12.
341 Public Interest Organizations Comments at
139.
337 ClearPath
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needed infrastructure development. We
are committed to encouraging the
development of needed transmission
infrastructure and to minimizing the
risk of delays. Nonetheless, we also
consider the interest in expeditiously
responding to parties’ concerns on
rehearing and the serious concerns
posed by the possibility of construction
commencing prior to the completion of
agency review, including the potential
for irreparable harm to property
interests or the environment.342 The
purpose of the revision is to preclude
construction during the period the
Commission may act on rehearing under
the defined circumstances and for a
limited period of time, such that
construction does not commence before
the Commission has completed its
decision-making process. The rehearing
process serves as a mechanism for the
Commission to carefully consider the
arguments presented, in order to resolve
disputes or bring its expertise to bear on
complex, technical matters before they
are potentially presented to the
courts.343 Further, it is correct that
section 313(c) of the FPA states that the
filing of a rehearing request does not
stay a Commission order. We believe by
exercising our discretion to add
language to § 50.11(d), we are
addressing the significant fairness and
due process concerns that could arise if
the Commission authorized a developer
to commence construction before the
Commission has finalized its proceeding
and an aggrieved party can seek court
review of a Commission decision.344
Any incremental delay or uncertainty
created by this provision is acceptable
given the benefits that it provides.
Moreover, we note that the Commission
has previously implemented this policy
in the context of natural gas pipeline
authorizations, with no deleterious
effects of which we are aware.
8. Clarifying Revisions to 18 CFR Part 50
265. In addition to the revisions
discussed above, the Commission
proposed minor, non-substantive edits
throughout part 50 of the regulations.
This final rule adopts the proposed
revisions and makes additional minor
edits, which are intended to clarify or
streamline existing requirements, to
correct grammatical errors and crossreferences, and to maintain consistency.
In addition, this final rule revises
§ 50.5(c)(6) to require that an applicant
include as part of its pre-filing request
proposals for all prospective third-party
342 See
Order No. 871, 171 FERC ¶ 61,201 at P 11.
P 9.
344 See Order No. 871–B, 175 FERC ¶ 61,098 at P
49.
343 Id.
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46713
contractors instead of at least three
proposals. This change is consistent
with the Commission’s current practice
for the review of third-party contractors
to assist Commission staff with
preparing environmental documents for
natural gas and hydropower
proceedings.345
E. Additional Considerations Raised by
Commenters
266. The Commission received a
number of comments on topics that
were not directly implicated by the
NOPR’s proposed changes to part 50 of
the Commission’s regulations. Those
comments and our determinations are
discussed in this section. We find no
need to modify the final rule in
response to these comments, as further
discussed below.
1. Grid-Enhancing Technologies
a. Comments
267. California Commission states that
the Commission’s siting process should
consider non-wire alternatives that are
cost effective, noting that these types of
analyses are required in California prior
to the issuance of Certificates of Public
Convenience and Necessity.346
Environmental Law & Policy Center
agrees, contending that requiring the
consideration of grid-enhancing
technologies and other advanced
technologies in the transmission
planning and siting processes would
remedy a deficiency in the NOPR of an
arbitrary line drawn between wires and
non-wires solutions.347 Further,
Environmental Law & Policy Center
suggests that consideration of gridenhancing technologies and advanced
transmission technologies would help
address stakeholder concerns commonly
associated with large infrastructure
development (i.e., siting conflicts, visual
impacts, habitat loss, and environmental
justice concerns) because it can reduce
the footprint of a transmission
project.348
b. Commission Determination
268. We find that no modification of
the regulations is required to allow for
consideration of grid-enhancing or other
advanced technologies. As proposed in
the NOPR and adopted herein,
345 See FERC, Handbook for Using Third-Party
Contractors to Prepare Environmental Documents
(July 2022), https://www.ferc.gov/media/handbookusing-third-party-contractors-prepareenvironmental-documents.
346 California Commission Comments at 4.
347 Environmental Law & Policy Center Reply
Comments at 6–7 (citing California Commission
Comments at 4).
348 Environmental Law & Policy Center Reply
Comments at 6–7.
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§ 50.7(h)(3)(iv) requires an applicant to
include, as part of the Exhibit H system
analysis data, an analysis of how the
proposed project will incorporate any
advanced technology design features, if
applicable. Accordingly, the
Commission will consider any proposed
advanced technology design features
submitted by an applicant as part of its
Exhibit H system analysis data, on a
case-by-case basis. The Commission will
also consider on a project-specific basis
information submitted regarding nonwires alternatives. As discussed further
below, an applicant is required to
address a variety of alternatives in the
environmental resource reports,
including, where appropriate,
alternatives other than new
transmission lines.349
2. Use of Existing Rights-of-Way
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a. Comments
269. Some commenters assert that the
Commission should use its authority
under FPA section 216(b) to promote
the use of existing rights-of-way to site
new transmission projects, including
using highway and railroad corridors, as
well as burying transmission projects in
existing rights-of-way.350 Rail
Electrification Council states that
section 216 allows the Commission to
consider whether utilizing existing
rights-of-way for proposed transmission
lines would promote efficient use of
resources, advance regional plans, and
avert or minimize undue harm to
communities and the environment.351
Further, Rail Electrification Council
asserts that the Commission should
promote the use of best practices in
siting transmission facilities, one of
which is the use of existing rights-ofway where financially and operationally
feasible and where beneficial to
developers, property owners, and local
economies.352
270. Rail Electrification Council also
asks the Commission to opine on
whether specific railroad rights-of-way
could be designated as National
Corridors and whether such designation
would facilitate transmission
development by reducing project
impacts and by authorizing the use of
eminent domain, including in instances
349 See Resource Report 12—Alternatives
discussion infra Part II.F.4.h.
350 See Impacted Landowners Comments at 2;
Rail Electrification Council Comments at 7–9;
Impacted Landowners Reply Comments at 3–4.
351 Rail Electrification Council Comments at 8
(referencing https://nextgenhighways.org/; ACEG,
Recommended Siting Practices for Electric
Transmission Developers, Sec. 4 ‘‘Co-Location in
Existing Rights-of-Way’’ (Feb. 2023), https://
cleanenergygrid.org/portfolio/recommended-sitingpractices-electric-transmission-developers/).
352 Id. at 7–9.
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where State law might prevent access to
privately held rights-of-way.353
4. Miscellaneous
b. Commission Determination
271. Under FPA section 216(a), one of
the factors that DOE may consider in
determining whether to designate a
National Corridor is whether the
designation maximizes existing rightsof-way.354 Section 216(b), however,
does not include a comparable
provision that the Commission consider
whether proposed transmission
facilities maximize use of existing
rights-of-way for transmission siting.
Although we agree that co-location in
existing rights-of-way may benefit
landowners, reduce costs and
environmental impacts, and shorten
construction time,355 co-location in
existing rights-of-way may not always
be feasible. The Commission will
consider whether and to what degree a
project may be able to use existing
rights-of-way on a case-by-case basis.
Because an applicant is already required
to submit information to the
Commission regarding a project’s use of
existing rights-of-way, no further
changes are needed to the regulations.
272. Regarding the suitability and
benefits of designating specific railroad
rights-of-way as National Corridors,
DOE, not the Commission, is
responsible for designating National
Corridors under section 216(a) of the
FPA. Thus, this is a matter for DOE to
consider, and is beyond the scope of
this final rule.
275. Farm Bureaus argue that the
proposed rule is unclear as to whether
a non-incumbent transmission
developer could apply for a Federal
permit at the same time that an
incumbent transmission developer is
obtaining a State permit, which they
state would create a major conflict
between State and Federal law.357
276. Farm Bureaus also note that ISOs
and RTOs are responsible for identifying
current priority transmission corridors
and state that it is unclear how National
Corridors relate to projects and ‘‘multivalue priority areas’’ that have already
been identified by ISOs and RTOs.358
3. Project Costs
a. Comments
273. Several commenters contend that
the NOPR does not address how the
costs of projects subject to the
Commission’s siting authority will be
evaluated, allocated, or recovered.356
b. Commission Determination
274. We find that no modification of
the regulations is necessary in response
to commenters’ concerns that the NOPR
did not address cost considerations.
Such issues are outside of the scope of
this final rule. Nothing in this final rule
is intended to modify existing
Commission processes governing the
evaluation, allocation, and cost recovery
of a transmission project.
353 Id.
at 13.
U.S.C. 824p(a)(4)(G).
355 See ACEG, Recommended Siting Practices for
Electric Transmission Developers 8 (Feb. 2023),
https://cleanenergygrid.org/portfolio/
recommended-siting-practices-electrictransmission-developers/.
356 California Commission Comments at 4;
Louisiana Commission Comments at 8–9; North
Carolina Commission and Staff Comments at 14;
Senator Barrasso Comments at 5.
354 16
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a. Comments
b. Commission Determination
277. We find that no modification of
the regulations is necessary in response
to Farm Bureaus’ comments. This
rulemaking proceeding is not the
appropriate forum to address individual
hypothetical scenarios. As we have
stated elsewhere in this final rule, we
will take into account information
specific to each application, including
information regarding the jurisdictional
basis to support the submission of an
application with the Commission.359
278. In response to the request that
the final rule explain how National
Corridors relate to RTO/ISO-identified
projects and priority areas, we reiterate
that the designation of National
Corridors is within DOE’s exclusive
authority under FPA section 216(a). For
that reason, we find that Farm Bureaus’
requested clarification is outside the
scope of this final rule.
F. Regulations Implementing NEPA
279. In Order No. 689, the
Commission also amended its
regulations implementing NEPA to
incorporate environmental review
procedures for electric transmission
facilities. 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 (EA)),
§ 380.6(a)(5) (adding major electric
transmission facilities using right-ofway in which there is no existing
facility to the list of project types for
which the Commission will prepare an
357 Farm
Bureaus Comments at 5.
at 7.
359 See supra P 34.
358 Id.
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environmental impact statement (EIS)),
§ 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).
The Commission also added § 380.16,
which describes the specific
environmental information that
applications for permits to site
transmission facilities under section 216
must include. The applicant must
submit this information in an
environmental report, consisting of
resource-specific reports, described
further below.
280. As explained above, the Fourth
Circuit’s 2009 Piedmont decision
vacated Order No. 689’s amendments to
the Commission’s NEPA regulations
because the court found that the
Commission had failed to consult with
CEQ prior to issuing the revised
regulations.360 Despite the Fourth
Circuit’s vacatur, the amendments to the
Commission’s NEPA regulations set
forth in Order No. 689 are still reflected
in 18 CFR part 380 although they are not
currently effective.361
1. Consultation with CEQ
281. In the NOPR, the Commission
sought 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 also committed to
consulting 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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282. Commenters including Public
Interest Organizations, EEI, and
ClearPath note that the Commission
must consult with CEQ when updating
its NEPA regulations and that the
Commission must take CEQ’s input
supra P 11.
that these regulations are not
currently effective, for ease of reference, the term
‘‘existing’’ is used in Part II.F. to denote Order No.
689’s amendments to the Commission’s NEPA
regulations in 18 CFR part 380.
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2. DOE Coordination
a. NOPR Proposal
285. The Commission did not propose
any specific process regarding
coordination with DOE in the NOPR.
362 Public
b. Comments
361 Notwithstanding
c. Commission Determination
283. On March 2, 2023, a letter was
sent to CEQ requesting consultation
related to the proposed NEPA
regulations.364 Following discussion of
the proposed regulations among CEQ
and Commission staff, CEQ provided its
comments on the proposal on August
24, 2023.
284. On June 3, 2023, Congress
enacted the Fiscal Responsibility Act.365
A section titled ‘‘Builder Act’’ amended
NEPA in several ways.366 We have
reviewed the Builder Act amendments
and have determined that no changes
are needed to the Commission’s
regulations to implement NEPA. We are
also reviewing CEQ’s Phase 2
rulemaking to determine whether any of
the Commission’s NEPA implementing
regulations need to be revised.367 If so,
the Commission will follow the
appropriate rulemaking procedures in a
separate proceeding.
b. Comments
286. Multiple commenters urge the
Commission to clarify how it will
coordinate with DOE to avoid
unnecessarily lengthy and duplicative
Federal environmental review processes
for National Corridor designation and
transmission permitting.368 Specifically,
a. NOPR Proposal
360 See
seriously and incorporate CEQ’s
proposed alterations.362 Public Interest
Organizations also explain that CEQ is
in the process of updating its NEPA
regulations and that the Commission’s
NEPA implementing regulations may
need to be updated based on CEQ’s
forthcoming updates.363
Interest Organizations Comments at
101–102; EEI Comments at 9; ClearPath Comments
at 6–7.
363 Public Interest Organizations Comments at
101–102.
364 Commission General Counsel March 2, 2023
Letter to CEQ Requesting Consultation (filed Mar.
21, 2023).
365 Fiscal Responsibility Act of 2023, Pub.L. 118–
5, 137 Stat 10.
366 Id. § 321 (providing the ‘‘Builder Act’’).
367 On May 1, 2024, CEQ published its Phase 2
final rule revising its regulations implementing
NEPA, including to implement the Builder Act
amendments. CEQ, National Environmental Policy
Act Implementing Regulations Revisions Phase 2,
89 FR 35442 (May 1, 2024). CEQ’s Phase 2 final rule
is effective on July 1, 2024, and agencies will have
12 months from the effective date to develop or
revise proposed procedures to implement CEQ’s
revised regulations.
368 ACP Comments at 7–13 and 15; ACORE
Comments at 4–5; EDF Comments at 11; Public
Interest Organizations Comments at 105.
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46715
commenters state that the Commission
should tier its NEPA analysis for its
permit decision off DOE’s NEPA
analysis for the National Corridor
designation, and only focus on elements
that DOE did not address or that have
changed since DOE’s review.369
287. EEI recommends that the
Commission conduct programmatic
NEPA reviews that encompass all
potential transmission development
projects at a regional scale, instead of
each one individually.370 EEI suggests
that individual project NEPA reviews
could be tiered from the programmatic
NEPA document.
288. Several commenters ask that the
Commission serve as a cooperating
agency during DOE’s environmental
review process for designating National
Corridors but also independently assess
that analysis before relying on its use.371
EEI states that the Commission should
adopt categorical exclusions that match
DOE’s existing categorical exclusions for
electric transmission facilities.372
289. ACORE states that, although the
Commission is not a signatory to the
May 2023 interagency Memorandum of
Understanding (MOU) with other
Federal agencies to expedite electric
transmission infrastructure under
section 216(h) of the FPA, the
Commission should work with DOE to
clarify whether the provisions of that
MOU can be used for non-qualifying
projects where the Commission is the
lead agency.373
290. ACEG and SEIA ask that the
Commission clarify how the
Commission’s siting process timing
would align with a project voluntarily
complying with DOE’s regulations in 10
CFR part 900 for early coordination,
information sharing, and environmental
reviews, particularly where DOE serves
as the lead agency.374
369 ACP Comments at 7–9, 11–13 (explaining that
a tiering approach would better align with
Congress’s intent under FPA section 216(h)(5));
CATF Comments at 18–22 (recommending that
tiering and adopting existing NEPA analyses is a
best practice for infrastructure permitting as per the
March 2023 Guidance from the Federal Permitting
Improvement Steering Council, Office of
Management and Budget, and the CEQ, encouraging
agencies to ‘‘rely on, adopt, or incorporate by
reference components of any high quality
NEPA. . . analyses.’’); Public Interest Organizations
Comments at 103–105; ACEG Comments at 18–19.
See generally, Off. of Mgmt. and Budget, M–23–14,
Memorandum for the Heads of Executive
Departments and Agencies, Implementation
Guidance for the Biden-Harris Permitting Action
Plan, at 5 (Mar. 6, 2023).
370 EEI Comments at 10–12.
371 Public Interest Organizations Comments at
105; CATF Comments at 20–21.
372 EEI Comments at 9.
373 ACORE Comments at 3–4.
374 ACEG Comments at 10; SEIA Comments at 7–
8.
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c. Commission Determination
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291. The Commission will coordinate
with DOE to the maximum extent
practicable to minimize redundancy and
promote efficiency in the Federal
environmental review processes under
section 216 of the FPA. However, the
framework for the Commission’s
coordination with DOE in exercising
DOE’s separate authority to designate
National Corridors under section 216(a)
of the FPA is beyond the scope of this
final rule. Accordingly, the Commission
will consider each request it receives
from DOE to be a cooperating agency
individually based on the specific
circumstances. Further, the Commission
will coordinate with other agencies
throughout the Commission’s review
process to comply with the
requirements of section 216(h) of the
FPA, as delegated to the Commission by
the Secretary of DOE, and to promote
timely and efficient Federal reviews and
permit decisions.
292. The Commission will consider
tiering on a case-by-case basis, as
appropriate. Tiering allows a Federal
agency to avoid duplicating previous
environmental analysis by referring to
another NEPA document containing the
necessary analysis.375 The
appropriateness of tiering is dependent
on numerous factors, including the
scope and timing of the original NEPA
document, the underlying assumptions
used in the original analysis, and
changes to the affected environment
since the original analysis.376 We
recognize that the new NEPA provisions
established in the Builder Act support
the development of a single NEPA
document for use, to the extent
practicable, by multiple agencies 377 and
continue to allow the use of
programmatic NEPA documents.378
293. Regarding ACEG’s and SEIA’s
questions about how the Commission’s
siting process would align with projects
complying with DOE’s regulations
implementing section 216(h) of the FPA
in 10 CFR part 900, the Commission
notes that recently revised § 900.1(f)
specifies that part 900 applies only to
qualifying projects which, as defined in
§ 900.2, excludes projects seeking a
construction or modification permit
from the Commission under section
375 Rio Grande LNG, LLC, 182 FERC ¶ 61,027
(2023) (citing 40 CFR 1501.11).
376 See 42 U.S.C. 4336b (describing circumstances
where an agency can rely on a higher-tier
programmatic environmental document); 40 CFR
1501.11(c) (describing circumstances when tiering
is appropriate).
377 42 U.S.C. 4336a(b).
378 42 U.S.C. 4336b.
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216(b) of the FPA.379 However, in the
event that an applicant originally
complying with 10 CFR part 900
decides to seek a permit from the
Commission under section 216(b) of the
FPA, nothing in this final rule precludes
the reuse of materials submitted to DOE.
The Commission will coordinate, to the
maximum extent practicable, with the
applicant and DOE in order to facilitate
an efficient transition.
294. As to EEI’s request for the
Commission to adopt categorical
exclusions that match DOE’s existing
categorical exclusions, the Commission
will establish any categorical exclusions
related to our siting authority that
appear appropriate after the
Commission has gained experience
reviewing applications, which is
consistent with CEQ guidance.380
3. NEPA Document Procedures
i. NOPR Proposal
295. In the NOPR, the Commission
did not propose any changes to the
types of facilities or actions that require
each type of NEPA document or how
the Commission prepares, distributes,
and receives comments on its NEPA
documents as described in §§ 380.4
through 380.9 of the Commission’s
regulations.
ii. Comments
296. Public Interest Organizations
assert that existing § 380.9 makes NEPA
documents available to the public
pursuant to the Freedom of Information
Act and via the Commission’s physical
reading room ‘‘at a fee.’’ They request
that the Commission specify in its
regulations that it will also make NEPA
documents publicly available online at
no charge.381
297. Public Interest Organizations
express concern that under the existing
§§ 380.5 and 380.6, only those
transmission projects sited in existing
rights-of-way are potentially subject to
an EA instead of the lengthier EIS,
which creates an incentive to site in
existing rights-of-way and may diminish
the rigor of the assessment of a project’s
impacts.382
379 As noted above, DOE recently issued a final
rule revising its regulations implementing section
216(h) of the FPA. DOE, Coordination of Federal
Authorizations for Electric Transmission Facilities,
89 FR 35312 (May 1, 2024).
380 CEQ, Establishing, Applying, and Revising
Categorical Exclusions under the National
Environmental Policy Act, at 4 (2010), https://
ceq.doe.gov/docs/ceq-regulations-and-guidance/
NEPA_CE_Guidance_Nov232010.pdf.
381 Public Interest Organizations Comments at
135–136.
382 Public Interest Organizations Comments at
126–131.
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298. Public Interest Organizations and
the Yurok Tribe request that the
Commission’s regulations be revised to
clearly state that the public will have an
opportunity to comment on any draft
NEPA document that the Commission
issues.383 The Yurok Tribe states that
although agencies frequently provide
30-day comment periods on NEPA
documents, the Commission should
provide Tribes with at least 60 days to
provide input, noting this longer
comment period is appropriate in light
of Tribes’ sovereign status and limited
resources.384
iii. Commission Determination
299. We decline to modify our
regulations regarding the availability of
Commission NEPA documents. Existing
§ 380.9 states that the Commission will
make NEPA documents available to the
public, and the Commission does so, at
no charge, through the Commission’s
eLibrary system.385 The reference to
obtaining materials ‘‘at a fee’’ in the
regulations refers to obtaining copies of
records already available through the
Commission’s website or for obtaining
records subject to Freedom of
Information Act or Critical Energy
Infrastructure Information requests.
300. With respect to commenters’
concerns regarding the development of
an EA or EIS for a particular project
affecting the rigor of the Commission’s
reviews and the appropriate length of
time for comment periods, the
Commission will make such
determinations on a case-by-case basis
because the appropriate approach is
likely to vary based on the factual
circumstances. Existing §§ 380.5 and
380.6 also include provisions to allow
flexibility for Commission staff to
prepare an EA or EIS based on projectspecific circumstances. We note that
Commission proceedings, whether
involving either an EA or an EIS,
typically include numerous
opportunities for public comment (and,
in the case of Tribes, government-togovernment consultation).
4. Revisions to 18 CFR 380.16
a. Addition of New Resource Reports
and General Revisions to Existing
Reports
i. NOPR Proposal
301. In the NOPR, the Commission
proposed to add to § 380.16 three new
resource reports (Tribal resources,
Environmental justice and Air quality
and environmental noise). For this
383 Public Interest Organizations Comments at
126–131; Yurok Tribe Comments at 38–39.
384 Yurok Tribe Comments at 38–39.
385 18 CFR 380.9 (2023).
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reason, the Commission proposed to
redesignate all resource reports after
Resource Report 5—Socioeconomics as
follows: Resource Report 6—Tribal
resources (§ 380.16(h)); Resource Report
7—Environmental justice (§ 380.16(i));
Resource Report 8—Geological
resources (§ 380.16(j)); Resource Report
9—Soils (§ 380.16(k)); Resource Report
10—Land use, recreation, and aesthetics
(§ 380.16(l)); Resource Report 11—Air
quality and environmental noise
(§ 380.16(m)); Resource Report 12—
Alternatives (§ 380.16(n)); Resource
Report 13—Reliability and safety
(§ 380.16(o)); and Resource Report 14—
Design and engineering (§ 380.16(p)).
The Commission also proposed minor,
non-substantive edits throughout
§ 380.16 intended to clarify or
streamline existing requirements, to
correct grammatical errors and crossreferences, and to maintain consistency.
302. The Commission proposed to
revise the General project description
resource report to more clearly identify
the types of facilities that must be
depicted on the topographic maps and
aerial images or photo-based alignment
sheets. The Commission also proposed
to add requirements to describe any
proposed horizontal directional drilling
and pile driving that may be necessary,
indicate the days of the week and times
of the day during which construction
activities would occur, and describe any
proposed nighttime construction
activities.
303. The Commission proposed to
add a requirement that the Water use
and quality resource report describe the
impact of proposed land clearing and
vegetation management practices on
water resources. The Commission also
proposed to add a requirement that the
Soils resource report describe any
proposed mitigation measures intended
to reduce the potential for adverse
impacts to soils or agricultural
productivity. In addition, the
Commission proposed only minor,
clarifying edits to the Socioeconomics,
Geologic resources, and Design and
engineering resource reports.
304. The discussion that follows this
section focuses on the individual
resource reports for which we received
substantive comments.386 For each of
those resource reports, we describe the
NOPR proposal, comments received,
and the Commission’s determination.
ii. Comments
305. No comments were received on
the proposed revisions to the General
project description, Water use and
386 See discussion infra Parts II.F.4.b. through
II.F.4.j.
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quality, Socioeconomic, Geologic
resources, Soils, and Design and
engineering resource reports.
306. Several commenters argue that
the three new resource reports expand
the Commission’s authority beyond the
scope of section 216 of the FPA,
opening the door to future legal
challenges.387 Chamber of Commerce
further states that the Tribal resources
and Environmental justice resource
reports appear to impede rather than
facilitate efficient siting and
construction of necessary transmission
facilities. American Chemistry Council
questions whether the three new
resource reports or any expansions to
existing resource reports are needed as
the information is already required by
State partners and there is little
justification for increased resources and
burden.
iii. Commission Determination
307. We adopt the NOPR’s proposed
revisions to the General project
description, Water use and quality,
Socioeconomic, Geologic resources,
Soils, and Design and engineering
resource reports in this final rule. We
continue to find that the NOPR’s
revisions to these reports will clarify
information needed to support the
Commission’s NEPA analyses. In
addition, this final rule adopts the
proposed minor, non-substantive edits
throughout § 380.16 and makes
additional minor edits to clarify or
streamline existing requirements, to
correct grammatical errors and crossreferences, and to maintain consistency.
308. We also adopt the NOPR’s three
new resource reports (Tribal resources,
Environmental justice and Air quality
and environmental noise). We disagree
with commenters that the designation of
three new resource reports alters the
scope of the Commission’s legal
authority, or in some way impedes the
Commission’s consideration of
applications under FPA section 216.
The required information in these
resource reports is necessary for the
Commission to fully evaluate the effects
of a proposed project and meet its
statutory obligations under the FPA and
NEPA. Additionally, the Commission
routinely requests this type of
information from applicants for natural
gas and hydroelectric projects through
existing regulatory requirements or data
requests.
309. Regarding American Chemistry
Council’s concerns that information in
387 American Chemistry Council Comments at 7–
8; Chamber of Commerce Comments at 3; ClearPath
Comments at 6–7; ELCON Comments at 5–6; North
Dakota Commission Comments at 7–8.
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46717
the new resource reports is already
required by State partners, we note that
not all States require the same
information for their respective reviews
of electric infrastructure. Regardless of
the relevant State filing requirements,
this information should be filed on the
record for the Commission to use it in
its proceeding. In the instances where
information is already developed for a
State review process, applicants can
provide that same information to the
Commission to support the
Commission’s NEPA review.
b. Resource Report 3—Fish, Wildlife,
and Vegetation
i. NOPR Proposal
310. The Fish, wildlife, and vegetation
resource report 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.388 In the NOPR,
the Commission proposed to modify
existing § 380.16(e)(3) and (4) to include
additional requirements in the Fish,
wildlife, and vegetation resource report.
Specifically, the Commission proposed
to require that applicants describe the
potential impact on interior forest (in
§ 380.16(e)(3)), as well as the impact of
proposed land clearing and vegetation
management practices on fish, wildlife,
and vegetation (in § 380.16(e)(4)).
ii. Comments
311. Arizona Game and Fish requests
that the Commission include additional
requirements in the Fish, wildlife, and
vegetation resource report beyond the
NOPR proposal. Specifically, Arizona
Game and Fish recommends that
applicants identify, analyze, and
develop mitigation measures to address
potential impacts on wildlife
connectivity and movement corridors,
habitat loss and fragmentation, and the
introduction and spread of noxious
weeds and non-native species.389
312. Arizona Game and Fish also calls
for revisions to existing § 380.16(e)(4) to
require the resource report to include
information from State Wildlife Action
Plans and a description of potential
impacts on species listed under State
Species of Greatest Conservation
Need.390
313. Interior supports the NOPR
proposal.391 In addition, Interior
recommends that the Fish, wildlife, and
vegetation resource report require
applicants to identify all known and
388 18
CFR 380.16(e).
Game and Fish Comments at 1–2.
390 Id. at 2.
391 Interior Comments at 1.
389 Arizona
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potential bald and golden eagle nesting
and roosting sites, migratory bird
flyways, and any sites important to
migratory bird breeding, feeding, and
sheltering.392 Interior further requests
that the resource report require
commitments from applicants to
implement avoidance and minimization
measures to reduce the likelihood of
incidental take of eagles and migratory
birds. Finally, Arizona Game and Fish
recommends incorporating standards
established by the Avian Power Line
Interaction Committee into the resource
report to address the vulnerability of
birds of prey to powerline strikes and
electrocution.393
iii. Commission Determination
314. To support the Commission’s
NEPA analyses, we adopt the NOPR’s
proposal, with additional modifications,
to revise the Fish, wildlife, and
vegetation resource report in existing
§ 380.16(e) to require the applicant to
describe potential impacts on interior
forest as well as the impact of proposed
land clearing and vegetation
management practices on fish, wildlife,
and vegetation. In response to
comments, we modify existing
§ 380.16(e)(2) to include wildlife
corridors and we modify existing
§ 380.16(e)(3) to include noxious weeds
and non-native species.394 To support
the Commission in assessments under
the Migratory Bird Treaty Act and the
Bald and Golden Eagle Protection Act,
we add a new provision in
§ 380.16(e)(7) 395 to address migratory
birds and bald and golden eagles.396
392 Id.
393 Arizona
Game and Fish Comments at 2.
staff routinely asks applicants in
natural gas and hydropower proceedings to provide
information about noxious weeds and invasive
species. See, e.g., Commission staff, Environmental
Information Request, Docket No. CP23–536, at 4
(issued Nov. 3, 2023) (Question No. 9); Commission
staff, Deficiency of License Application and
Additional Information Request, Project No. 14851–
003, at B–14 (issued Apr. 28, 2023) (Question No.
42(b)); see also FERC, Guidance Manual for
Environmental Report Preparation—Volume 1, at
4–65 and 4–66 (Feb. 2017), https://www.ferc.gov/
sites/default/files/2020-04/guidance-manualvolume-1.pdf.
395 Because of the addition of this new
requirement, the requirements in the Fish, wildlife,
and vegetation resource report after existing
§ 380.16(e)(6) are redesignated from paragraphs
(e)(7) and (e)(8) to paragraphs (e)(8) and (e)(9),
respectively.
396 Commission staff routinely asks applicants in
natural gas and hydropower proceedings to provide
information about migratory bird species and bald
and golden eagles. See, e.g., Commission staff,
Environmental Information Request, Docket No.
CP23–536, at 5 (issued Nov. 3, 2023) (Question Nos.
14–16); Commission staff, Deficiency of License
Application and Additional Information Request,
Project No. 14851–003, at B–14 through B–19
(issued Apr. 28, 2023) (Question Nos. 42(d)–(f), 43,
44(j), 45, and 47–50); see also FERC, Guidance
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394 Commission
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315. We agree with Arizona Game and
Fish that requiring the applicant to
identify and analyze potential impacts
on wildlife corridors would help ensure
that this specific habitat is adequately
identified in support of the
Commission’s NEPA analyses.
Therefore, we modify existing
§ 380.16(e)(2) to include a requirement
to describe wildlife corridors. We also
agree with Arizona Game and Fish that
requiring the applicant to identify and
analyze noxious weeds and non-native
species would establish a baseline of
known areas where noxious weeds and
non-native species occur. Therefore, we
modify existing § 380.16(e)(3) to require
the resource report to describe any areas
of noxious weeds and non-native
species. This change will support the
Commission’s NEPA analysis by
identifying areas that may require
different restoration methods or
additional vegetation management
during construction, operation, and
maintenance.
316. We decline to modify the
requirements in the Fish, wildlife, and
vegetation resource report to require the
applicant to identify conservation or
mitigation measures. We find that the
existing regulations already require the
applicant to address the disclosure of
potential project impacts, specifically,
§ 380.16(e)(4) directs that the Fish,
wildlife, and vegetation resource report
describe the possibility of a major
alteration to ecosystems or
biodiversity.397 Further, a description of
site-specific mitigation measures is
required in redesignated § 380.16(e)(8)
of this final rule. These existing
regulations adequately address the
potential impacts and mitigation
measures.
317. Similarly, we decline Arizona
Game and Fish’s request to modify
existing § 380.16(e)(4) to require that the
Fish, wildlife, and vegetation resource
report include State Species of Greatest
Conservation Need and incorporate
information from State Wildlife Action
Plans. We find that the species of
concern to States are already addressed.
Section 380.16(e)(4) requires the
applicant to describe potential impacts
on all plant and animal wildlife,
including species of special concern and
State-listed endangered or threatened
species. Therefore, we do not believe
that the suggested revisions are
necessary.
Manual for Environmental Report Preparation—
Volume 1, at 4–62 and 4–63 (Feb. 2017), https://
www.ferc.gov/sites/default/files/2020-04/guidancemanual-volume-1.pdf.
397 18 CFR 380.16(e)(4).
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318. We decline Arizona Game and
Fish’s request to prescribe the standards
established by the Avian Power Line
Interaction Committee into the
Commission’s regulations. The
Commission supports practices to
protect birds; however, in the event the
referenced standards are subsequently
revised based on new scientific data, the
Commission’s regulations could become
outdated or inaccurate. Commission
staff will consider applicable Avian
Power Line Interaction Committee
standards on a project-specific basis.
319. We agree with Interior’s
comments that the Fish, wildlife, and
vegetation resource report should
require the identification of all known
and potential bald and golden eagle
nesting and roosting sites, migratory
bird flyways, and any sites important to
migratory bird breeding, feeding, and
sheltering. We find that this information
may assist the Commission in its
assessments under the Migratory Bird
Treaty Act and the Bald and Golden
Eagle Protection Act. Accordingly, this
final rule adds a new requirement in
§ 380.16(e)(7) to identify migratory birds
and bald and golden eagles in the
project area. This final rule also adopts
corresponding changes in existing
§ 380.16(e)(4), redesignated (e)(8), and
redesignated (e)(9) to include impacts,
mitigation, and correspondence on
migratory birds and bald and golden
eagles.
c. Resource Report 4—Cultural
Resources
i. NOPR Proposal
320. The Cultural resources resource
report 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 of
1966 (NHPA).398 In the NOPR, the
Commission proposed only minor
clarifying edits to this resource report.
ii. Comments
321. Commenters suggest that Tribes
be allowed to choose the assessors that
will study land with the Tribes’ cultural
resources, and that assessors must
follow all Tribal rules and guidelines for
land surveys and assessments.399
iii. Commission Determination
322. We adopt the minor changes to
the Cultural resources resource report as
proposed in the NOPR. We decline to
398 18
CFR. 380.16(f).
Tribe Comments at 33; Public Interest
Organizations Comments at 70 and 72.
399 Yurok
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modify the regulations to require that
Tribes choose the assessors used by an
applicant to study cultural resources. To
complete cultural resources surveys, we
encourage applicants to consider Tribal
input, including recommendations on
survey methodology or accessor
selection. With respect to the request to
specify the rules and guidelines for
cultural resources surveys and
assessments, applicants and consultants
should follow the Secretary of the
Interior’s Standards and Guidelines for
Archeology and Historic
Preservation,400 and they would have to
follow the appropriate State laws on
private lands and the requirements of
Federal land-managing agencies on
Federal lands. If a proposed project
would affect Tribal land, the applicant
must adhere to any Tribal requirements
for conducting cultural resources
studies on Tribal lands.401
d. Resource Report 6—Tribal Resources
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i. NOPR Proposal
323. In the NOPR, the Commission
stated that it 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.402 To
help the Commission 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.403 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; 404
provide available information on
traditional cultural and religious
properties; 405 and ensure that specific
site or location information is not
disclosed, because disclosure will create
a risk of harm, theft, or destruction or
violate Federal law.406
324. In the NOPR, the Commission
proposed to relocate the existing Tribal
400 Department of the Interior, National Park
Service, Archeology and Historic Preservation;
Secretary of the Interior’s Standards and
Guidelines, 48 FR 44716 (Sept. 29, 1983).
401 18 CFR 380.14(a)(2).
402 18 CFR 2.1c (2023).
403 See 18 CFR 380.16(j)(5).
404 Id. § 380.16(j)(5)(i).
405 Id.
406 Id. § 380.16(j)(5)(ii).
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resource-related information
requirements to a new, standalone
resource report, Resource Report 6—
Tribal resources, in § 380.16(h). In
addition to consolidating the existing
requirements in a new resource
report,407 the Commission also
proposed to require an applicant to
identify potentially-affected Tribes;
describe the impacts of project
construction, operation, and
maintenance on Tribes and Tribal
interests, including impacts related to
enumerated resource areas; 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). The NOPR explained that
the Commission believes this
information is necessary to allow it to
fully evaluate the effects of a proposed
project in furtherance of the
Commission’s trust responsibility and
the Commission’s statutory obligations
under the FPA and NEPA.
ii. Comments
325. CLF asks that the final rule
explain how the Tribal resources
resource report and Cultural resources
resource report relate and interact and
clarify that the Tribal Resources
resource report is not duplicative of the
Cultural Resources resource report, but
instead addresses Tribal interests and
resources that may not be considered
under the NHPA.408
326. The Chickahominy Indian Tribe,
Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe support the new
Tribal Resources resource report but
request the Commission require better
supported and more detailed
information than is required for a
cultural resources background literature
discussion.409 For example, the Tribes
ask that the report be prepared using
consultants with a proven track record
of considering research by members of
the Tribes, with the Commission
evaluating the resource report
considering the expertise and
sufficiency of the consultant.410 The
Chickahominy Indian Tribe,
Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe also suggest that
applicants be required to engage with
Tribes in identifying sacred areas and
other culturally significant regions and
to develop Tribal history. Public Interest
407 See
id. § 380.16(h)(4)–(5).
Comments at 15.
409 Chickahominy Indian Tribe, Nansemond
Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe Comments at 1.
410 Id. at 2.
408 CLF
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46719
Organizations state that the Commission
must accept Indigenous Knowledge as
relevant and reliable data in all resource
reports, but especially in the Tribal
Resources resource report.411
327. Public Interest Organizations
state that the Commission’s regulations
should require applicants to protect
from public disclosure, to the maximum
extent practicable, Tribal information,
including sacred sites, locations, and
Indigenous Knowledge.412
328. CLF and the Yurok Tribe also
recommend that the Tribal resources
resource report describe any proposed
mitigation measures intended to avoid
or minimize impacts on Tribes, or
explain why such mitigation measures
were not pursued.413
iii. Commission Determination
329. We adopt the NOPR’s proposal to
add Resource Report 6—Tribal
resources with one modification to
require a description of any proposed
mitigation measures. These
requirements will ensure that an
application contains information that
helps the Commission assess a project’s
impacts on Tribal rights and resources.
330. In response to CLF’s request that
we clarify the relationship between the
Tribal resources and Cultural resources
resource reports, we explain that the
latter is intended to elicit information
regarding efforts to identify and
determine effects on historic properties
in furtherance of the Commission’s
obligations under section 106 of the
NHPA. The Tribal Resources resource
report is intended to elicit information
that will enable the Commission to fully
evaluate the effects of a proposed
project on Tribal resources in
furtherance of the Commission’s trust
responsibility and the Commission’s
statutory obligations under the FPA and
NEPA. It is possible that some, but not
all, of the information filed in the two
reports may be duplicative, but the
Tribal Resources resource report will
note Tribal interests in resources that
may not be historic properties,
including but not limited to treaty
rights.
331. As to Tribes’ comments on the
qualifications of consultants that
prepare the Tribal resources resource
report, applicants should use qualified
consultants that meet the expected
standards, for example the National
Park Service’s Archeology and Historic
Preservation, Secretary of the Interior’s
411 Public
Interest Organizations Comments at 66–
69.
412 Public
Interest Organizations Comments at 73–
74.
413 CLF Comments at 15; Yurok Tribe Comments
at 34–35.
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Standards and Guidelines, and any
other applicable standards. We
encourage applicants to engage with
Tribes to identify sacred areas and other
culturally significant regions and to
develop Tribal history. Any information
filed on the record by Tribes on a
project, including Indigenous
Knowledge, would be reviewed and
considered by the Commission.
332. Regarding public disclosure
concerns, pursuant to proposed
§ 380.16(h)(5), applicants must ensure
that the Tribal resources resource report
does not include sensitive Tribal
information—such as specific site or
property locations—the disclosure of
which could 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 NHPA and the
Archaeological Resources Protection
Act.414
333. Finally, in response to
commenters’ feedback, we modify the
proposed resource report to require a
description of any proposed mitigation
measures to avoid or minimize impacts
on Tribal resources, including any input
received from Indian Tribes regarding
the proposed measures and how the
input informed the proposed measures.
This addition is consistent with a
comparable requirement in the
Environmental justice resource report
adopted herein.415
e. Resource Report 7—Environmental
Justice
i. NOPR Proposal
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334. In the NOPR, the Commission
proposed to add new Resource Report
7—Environmental justice, in § 380.16(i).
Specifically, the resource report would
require the applicant to identify
environmental justice communities
within the project’s area of potential
impacts; 416 describe the impacts of
project construction, operation, and
maintenance on environmental justice
communities, including whether any
impacts would be disproportionate and
adverse; discuss cumulative impacts on
environmental justice communities,
including whether any cumulative
414 See also 18 CFR 380.16(f)(4) (directing
applicants to request privileged treatment for all
material filed with the Commission containing
cultural resource location, character, and ownership
information in accordance with the Commission’s
procedures in § 388.112).
415 See proposed § 380.16(i)(4).
416 As discussed, to identify environmental
justice communities, Commission staff currently
reviews U.S. Census Bureau population data for the
applicable location, relevant guidance, and agency
best practices. See supra note 166.
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impacts would be disproportionate and
adverse; 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.
335. The Commission also proposed a
corresponding addition to § 380.2,
which sets forth the definitions for the
Commission’s NEPA regulations, to
define the term ‘‘environmental justice
community.’’
ii. Comments
336. Several commenters support the
addition of the Environmental justice
resource report to ensure that the
Commission complies with its NEPA
obligations.417 Other commenters object
to the inclusion of the new resource
report.418
337. ClearPath and North Dakota
Commission oppose the proposed
addition of the Environmental justice
resource report because the Commission
proposes to rely on executive orders
(including executive orders that do not
specify the Commission as a
participant), guidance, and poorly
defined criteria rather than laws,
statutes, and regulations, thus
threatening to introduce challenges and
legal vulnerabilities.419
338. ClearPath states that the
Commission has failed to set clear and
predictable procedures for applicants to
follow should updates to data and
guidance be made during the pre-filing
and application processes, created
duplicative requirements and
paperwork for applicants, and ClearPath
claims that the Commission has
instituted a hierarchy of treatment and
consideration of project impacts across
population segments that could have
equal protection concerns under the
Constitution.420 Similarly, ELCON
objects to including a new resource
report specific to one stakeholder type,
environmental justice communities,
with identification and mitigationmeasure requirements when other
similarly situated stakeholders do not
receive such treatment.421
339. CLF states that the Commission
must commit to a policy of ensuring that
environmental justice communities are
not more adversely impacted by the
417 See, e.g., ACEG Comments at 16; CATF
Comments at 15–16.
418 See, e.g., ClearPath Comments at 7; ELCON
Comments at 7–8; North Dakota Commission
Comments at 7–8.
419 ClearPath Comments at 7; North Dakota
Commission Comments at 7–8.
420 ClearPath Comments at 7.
421 ELCON Comments at 8.
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Commission’s siting authority
(including when accounting for the
impacts of other, existing energy
projects) than non-environmental justice
communities, and to the extent that
impacts are unavoidable, impacted
communities should receive benefits
that mitigate or compensate for those
impacts.422
340. Public Interest Organizations
state that proposed § 380.16(i)(3) must
require an integrated cumulative
impacts analysis of environmental and
non-environmental stressors,
independently reviewed by Commission
staff.423 They also ask that the
Commission ensure that flexibility in
data sets and factors is not harmful to
impacted communities and prevent the
cherry-picking of analytical tools and
methods to fit a desired outcome.424
Likewise, Policy Integrity requests that
the Commission provide applicants
with additional guidance on how to
analyze cumulative impacts on
environmental justice communities.425
It states that this guidance should define
key terms and describe authoritative
resources for how to perform such an
analysis.
iii. Commission Determination
341. We adopt the NOPR’s proposal to
add Resource Report 7—Environmental
Justice. As an initial matter, as
discussed above, the Commission’s
authority to require submission of
information to assess the potential for
impacts to communities due to
development of an energy infrastructure
project is well-established under law,
and necessary for the Commission to
achieve its statutory obligations under
the FPA and NEPA.426 Accordingly,
commenters incorrectly presume that
consideration of such impacts, when
gathered in the form of a separate
resource report, is a novel practice or
treads new legal ground. These concerns
are unfounded.
342. We also disagree with
commenters’ concerns that we have
inappropriately based the addition of
the Environmental justice resource
report solely on Executive Orders and
guidance. While we use Executive
Orders and guidance to help establish
the information Commission staff needs
to perform its analysis, the Commission
has a responsibility under NEPA to
evaluate project-related impacts on the
quality of the human environment,
422 CLF
Comments at 11–12.
Interest Organizations Comments at 91–
423 Public
92.
424 Id.
at 93.
Integrity Comments at 2, 39–45.
426 Supra P 110.
425 Policy
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which include impacts on
environmental justice communities.
343. We disagree with comments
asserting that we have failed to set clear
procedures given the potential for
updates to data and guidance. As with
all resource reports, applicants are
expected to use the best available data
and follow guidance in place at the time
they submit their application. By
requiring an environmental justicespecific resource report, we are setting
a clear expectation regarding the
information Commission staff will need
to adequately assess project-related
impacts on environmental justice
communities. Commenters provide no
examples or explanation of how the new
resource report creates duplicative
requirements and paperwork.
344. We do not believe that the
requirements institute a hierarchy of
treatment and consideration of project
impacts across population segments.
Analyses of impacts are conducted in a
manner consistent with the
requirements of NEPA. NEPA requires a
‘‘hard look’’ at all the environmental
consequences of a proposed action and
consideration of whether there are steps
that could be taken to mitigate any
adverse environmental consequences,
without mandating specific substantive
outcomes.427 These requirements ensure
the Commission has information
necessary to assess the potential impacts
of the project but do not dictate an
approach for weighing such potential
impacts or determining whether
mitigation may be appropriate.
345. We decline to adopt precise
methodologies to assess cumulative
impacts, but instead will allow
flexibility in the scope and level of
analysis needed. Cumulative impacts on
environmental justice communities will
vary based on project- and site-specific
conditions. Commission staff will use
the pre-filing process to review all
information filed on the record and
provide feedback to applicants to assist
applicants in identifying cumulative
projects and resources to be addressed
in this analysis. We expect applicants to
follow the latest rules, guidance, and
data from the Commission, CEQ, the
Census Bureau, and other authoritative
sources when performing this analysis.
346. Finally, we agree with Public
Interest Organizations that the
Commission should perform its own
independent assessment of cumulative
impacts on environmental justice
communities. Commission-issued NEPA
documents reflect Commission staff’s
427 Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 350–351 (1989).
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independent analysis of all
environmental effects of a project.
f. Resource Report 10—Land Use,
Recreation, and Aesthetics
i. NOPR Proposal
347. The existing Land use,
recreation, and aesthetics resource
report 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.428 In the
NOPR, the Commission proposed to add
a requirement to this resource report to
identify the area of direct effect of the
proposed facilities on interior forest. We
also proposed 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 General project
description resource report; and (3)
require copies of any consultation with
the Federal Aviation Administration.
348. The existing Land use,
recreation, and aesthetics resource
report requires applicants 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.
349. In the NOPR, the Commission
explained that more specific
information is needed to evaluate the
effects of the proposed project facilities
on visual resources. Additionally, to
assess visual impacts of infrastructure
projects, including high-voltage
transmission lines, staff has, in some
cases, used the Bureau of Land
Management’s Visual Resource
Management methodology,429 and other
agencies have used the Federal Highway
Administration’s Visual Impact
Assessment for Highway Projects.430
Therefore, the NOPR sought comment
on whether either of these tools, or any
other tool, is appropriate for our
analysis. In the NOPR, the Commission
428 18
CFR 380.16(j).
e.g., Final Environmental Impact
Statement for the Swan Lake North Pumped Storage
Project (P–13318–003).
430 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.
429 See,
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46721
also proposed to revise the Land use,
recreation, and aesthetics resource
report to require that the applicant
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.
ii. Comments
350. Arizona Game and Fish
recommends including coordination
with State natural resource agencies and
other local stakeholders to identify
potential impacts on recreation and
opportunities to maintain public
access.431
351. Interior requests that
§ 380.16(l)(4), as revised and
redesignated in the NOPR, be further
modified to require the applicant to
identify, by milepost and length of
crossing, any National Park System
units and program lands within 0.25
mile of a proposed facility.432
352. Impacted Landowners state that
the Land use, recreation, and aesthetics
resource report must identify
agricultural land by acreage and use,
and describe permanent and temporary
impacts on agritourism, crops, yields,
irrigation, drainage, soil quality,
livestock, aerial application of seed,
fertilizer, and pesticides.433 Impacted
Landowners also ask that this resource
report include estimates of financial
impacts on the impacted agricultural
businesses from the construction and
operation of the project over its
expected life and identify farmlands
designated as prime, unique, or
farmlands of statewide or local
importance, including an explanation of
how the construction of a transmission
project on working farmland complies
with the Farmland Protection Policy
Act.434
353. Impacted Landowners request
that the Land use, recreation, and
aesthetics resource report require
applicants to investigate transmission
line interference with farm equipment
electronics and GPS systems that are
essential to modern precision
agriculture.435 They further state that
different positions of the transmission
line in relation to the field may also
produce different effects.
354. Interior recommends including
National Park System units and program
431 Arizona
Game and Fish Comments at 3.
Comments at 2.
433 Impacted Landowners Comments at 17.
434 7 U.S.C. 4201–4209.
435 Impacted Landowners Comments at 17.
432 Interior
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lands in the described areas of potential
visual effects by adding the following to
redesignated § 380.16(l)(6): the National
Park System (54 U.S.C. 100101),
National Historic Landmarks, National
Natural Landmarks, Land and Water
Conservation Fund State Assistance
Program sites, and the Federal Lands to
Parks program lands.436
355. In response to the Commission
seeking comment in the NOPR on
whether any specific tools are
appropriate for our visual analysis,
commenters provide various
recommendations.
356. First, ACEG recommends that the
Commission and other Federal agencies
involved in assessing impacts from
transmission facilities consistently
apply the same methodologies for
reviewing visual impacts (e.g., Bureau of
Land Management or Federal Highway
Administration visual impact
assessment tools).437 ACEG states that
consistently applying the same
methodology will allow the Commission
to further develop expertise with that
particular methodology.
357. Interior recommends that
applicants use the National Park Service
Visual Impact Assessment Methodology
and Guidelines when describing
visually sensitive areas within the
viewsheds of National Park System
units.438
358. The Chickahominy Indian Tribe,
Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe support the
proposed requirement in the Land use,
recreation, and aesthetics resource
report that visual aids be prepared to
evaluate visual impacts. The Tribes state
that the regulations should expressly
provide that Tribes be consulted in
identifying visually sensitive areas and
key viewpoints. The Tribes suggest
using a combination of the Bureau of
Land Management’s Visual Resource
Management methodology to guide onthe-ground work and the National Park
Service’s Visual Impact Assessment
Evaluation Guide for Renewable Energy
Projects to set the methodological
framework to conduct the visual
impacts analysis.439
iii. Commission Determination
359. We adopt the NOPR’s proposal to
revise the Land use, recreation, and
aesthetics resource report to include
interior forest, clarify the scope of
structures and facilities to be identified
436 Interior
Comments at 2.
Comments at 19.
438 Interior Comments at 2.
439 Chickahominy Indian Tribe, Nansemond
Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe Comments at 4.
437 ACEG
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and depicted on maps, require copies of
any consultation with the Federal
Aviation Administration, and identify
the area of potential visual effects and
visual characteristics of the affected
lands and waters, including use of
visual aids. Based on commenter
feedback regarding appropriate tools for
performing visual analyses, we also
adopt one modification to redesignated
§ 380.16(l)(10) to require the applicant
to identify, and justify the selection of,
the tools or methodologies it uses to
develop the required information on
visual effects. We find that adopting this
modification and the changes proposed
in the NOPR will assist the
Commission’s analysis of effects on land
use and aesthetics under NEPA.
360. In response to Arizona Game and
Fish’s request to require coordination
with State natural resource agency and
other local stakeholders, under § 50.4(c),
applicants are required to provide
project notifications to stakeholders
upon entering the pre-filing process and
submitting an application to the
Commission, which includes State
natural resource agencies and other
local stakeholders, as applicable. In
addition, the Commission would
include such stakeholders on project
mailing lists to receive Commission
notices throughout the project’s review.
Thus, State agencies and local
stakeholders will be invited to
participate in the process.
361. Regarding Interior’s request for
National Park System units and program
lands to be identified in the Land use,
recreation, and aesthetics resource
report, the existing regulations in
redesignated § 380.16(l)(4) already
require applicants to identify national
parks that would be directly affected or
are within 0.25 mile of any proposed
facility.
362. In response to Impacted
Landowners’ requested additions
regarding agricultural lands and
qualities, the Land use, recreation, and
aesthetics resource report already
requires the applicant to identify
agricultural land by acreage and use
(redesignated § 380.16(l)(2)) and
describe permanent and temporary
impacts on agricultural land use
(redesignated § 380.16(l)(8)). In
addition, the Soils resource report
requires the applicant to identify prime
and unique farmlands (redesignated
§ 380.16(k)(3)) and address soil quality/
characteristics, including drainage,
potential impacts on soils, and
mitigation measures (redesignated
§§ 380.16(k)(1) through 380.16(k)(4)).
The financial impacts from crop loss are
highly specific, based on the type of
crop, duration of impact, and local
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market conditions. Thus, these impacts
are more appropriately addressed
through easement negotiations or
through an eminent domain proceeding.
363. As to compliance with the
Farmland Protection Policy Act, this
law applies to Federal programs that
may permanently convert farmland to
nonagricultural use, where Federal
programs are activities that ‘‘involve
undertaking, financing, or assisting
construction or improvement projects or
acquiring, managing, or disposing of
Federal lands and facilities.’’ 440
Further, the regulations implementing
the Farmland Protection Policy Act
specifically exclude Federal permitting
and licensing programs for activities on
private or non-Federal lands.441
Accordingly, the Farmland Protection
Policy Act does not apply to the
Commission’s review of electric
transmission projects.
364. Regarding transmission line
interference with farm equipment
electronics and GPS systems,
§ 50.7(g)(1)(v) already requires
applicants to describe line design
features for minimizing radio
interference caused by operation of
proposed facilities. In addition,
redesignated §§ 380.16(o)(6) through
(o)(8) under the Reliability and safety
resource report, as proposed in the
NOPR and adopted herein, include
requirements to: describe the
electromagnetic fields to be generated
by proposed transmission lines,
including strength and extent; discuss
the potential for electrical noise from
electric and magnetic fields as they may
affect communication systems; and
discuss the potential for induced or
conducted currents along the
transmission right-of-way from electric
and magnetic fields. Therefore, the
requested update to the Land use,
recreation, and aesthetics resource
report is unnecessary.
365. In response to Interior’s
requested additions to redesignated
§ 380.16(l)(6) to describe areas of
potential visual effects, we note that the
referenced regulation is not applicable
to visual effects, but simply requires the
applicant to identify National Wild and
Scenic Rivers Systems, National Trails
Systems, and Wilderness Act areas that
would be crossed by, or within 0.25
mile of, a project. However, the Land
use, recreation, and aesthetics resource
report requires applicants to identify the
area of potential visual effects,
including visually sensitive areas and
key viewpoints, under the NOPR’s
revised and redesignated § 380.16(l)(10).
440 7
441 7
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applicant’s efforts to engage Tribes early
in the permitting process, during
government-to-government consultation
with the Commission, or during any of
the comment periods that occur during
the Commission’s pre-filing and
application processes.
Further, the National Park System
would be included on the Commission’s
stakeholder mailing list, if lands are in
close proximity to a proposed project,
and the Commission would work with
the applicant during pre-filing to
identify any visually sensitive areas that
need to be evaluated, including any
National Park System lands.
366. Considering the comments
received on whether any specific tools
are appropriate for our visual analysis,
and additional research, we recognize
that a number of Federal agencies have
developed their own visual impact
assessment tools or methodologies for
purposes of assessing proposed
infrastructure projects.442
367. Based on the comments received,
there is no consensus on the appropriate
methodology or tool that the
Commission or applicants should use to
assess the visual effects of proposed
transmission projects. Further, proposed
projects under the Commission’s
jurisdiction could be within the
viewshed of any number of Federal
lands, where relevant land management
agencies may employ different
methodologies. We also recognize that
new or revised methodologies and tools
may become available in the future.
Therefore, we decline to mandate the
use of a specific tool or methodology in
the Commission’s regulations. Instead,
this final rule revises § 380.16(l)(10) to
require the applicant to identify, and
justify the selection of, the tools or
methodologies it uses to develop the
required information on visual effects.
We recognize that there may be
efficiency gains if applicants use the
applicable Federal agency guidance,
methodology, or tool for assessing visual
impacts on corresponding Federal
agency land (e.g., applicants use the
National Park Service Visual Impact
Assessment Methodology and
Guidelines when analyzing visual
impacts on the viewsheds of National
Park System units) and we support
allowing for such flexibility in the
Commission’s regulations.
368. Regarding Tribes’ requests that
Tribes be consulted in identifying
visually sensitive areas and key
viewpoints, we encourage applicants to
seek to engage Tribes when identifying
visually sensitive areas and key
viewpoints. Tribes may provide
comments on visually sensitive areas
and key viewpoints during the
369. The Commission explained in
the NOPR that the existing Reliability
and safety resource report requires
applicants 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. The NOPR further explained that
the Commission’s regulations do not
currently require applicants to submit
information on proposed project
emissions and the corresponding effects
on air quality and the environment.
370. The Commission stated in the
NOPR that, to fully evaluate the effects
of a proposed project in furtherance of
the Commission’s obligations under
NEPA,443 additional information on
emissions, air quality, and
environmental noise is necessary.
Therefore, the Commission proposed to
add a new resource report, Resource
Report 11—Air quality and
environmental noise, in § 380.16(m). As
proposed, the report 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,444 the NOPR also proposed to
establish a noise limit for proposed
substations and appurtenant facilities as
experienced at pre-existing noisesensitive areas, such as schools,
hospitals, or residences.
371. 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,445 and provide
the distance from the project facilities to
442 See Bureau of Land Management’s Visual
Resource Management methodology, Federal
Highway Administration’s Visual Impact
Assessment for Highway Projects, National Park
Service’s Visual Impact Assessment Methodology
and Guidelines, and U.S. Army Corps of Engineers’
Visual Resources Assessment Procedure.
443 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. 87, 97
(1983).
444 18 CFR 380.12(k)(4)(v)(A) (2023).
445 42 U.S.C. 7401 et seq.
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g. Resource Report 11—Air Quality and
Environmental Noise
i. NOPR Proposal
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46723
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.
372. 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
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 of 55
decibels on the A-weighted scale at any
pre-existing noise-sensitive area.446
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.
ii. Comments
373. Multiple commenters express
support for the inclusion of the new Air
quality and environmental noise
resource report, stating that the
Commission is well within its statutory
authority to adopt NEPA regulations
that include information needed to
perform air quality analyses.447
446 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.
447 Arizona Game and Fish Comments at 2; Public
Interest Organizations Comments at 108–114; CATF
Comments at 14; Los Angeles DWP Comments at 4–
5.
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Conversely, Chamber of Commerce
states that the Commission should
remove the Air quality and
environmental noise resource report
because it is unclear what emissions
result from the direct operation of a
transmission line, and the focus on any
such emissions lacks congressional
direction.448
374. ClearPath opposes the proposal
to estimate emissions from the project,
including reasonably foreseeable
emissions, because the requirements are
too vague to be met or understood by
applicants 449 and ELCON recommends
that the Commission remove the
mitigation requirements.450 ACORE and
ACEG recommend that the Commission
apply the ‘‘rule of reason and the
concept of proportionality’’ to emissions
requirements so as not to require an indepth disclosure of emissions for small
projects.451
375. Policy Integrity requests that the
Commission clarify that the analysis of
alternatives under NEPA include
upstream emissions from changes to
power-system operations as these
changes are reasonably foreseeable and
essential to the Commission’s public
interest determination under the
FPA.452 Similarly, Sabin Center and
Policy Integrity recommend requiring
that applicants provide an estimate of
both direct and indirect emissions,
including upstream emissions
associated with upstream electric
generation facilities.453 Conversely,
Representatives McMorris Rodgers and
Duncan question what specific statutory
authority the Commission is relying
upon to require the estimation of
upstream emissions.454
376. Several commenters request that
the Commission consider a transmission
project’s effect on greenhouse gas (GHG)
emissions or climate change as part of
its NEPA reviews.455 ACEG also
recommends that along with the ‘‘rule of
reason’’ for emissions disclosure, the
Commission should consider the air
quality benefits from a project due to
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448 Chamber
of Commerce Comments at 3.
449 ClearPath Comments at 7–8.
450 ELCON Comments at 9–10.
451 ACORE Comments at 5 (citing CEQ’s Interim
Guidance on Consideration of Greenhouse Gas
Emissions and Climate Change, 88 FR 1196 (Jan. 9,
2023) (CEQ’s Interim GHG Guidance)); ACEG
Comments at 19–20 (same).
452 Policy Integrity Comments at 2 and 4–17.
453 Sabin Center Comments at 2 and 6–8; Policy
Integrity Comments at 12–17.
454 Representatives McMorris Rodgers and
Duncan Comments at 2.
455 Sabin Center Comments at 2 and 5–8; Public
Interest Organizations Comments at 108–114; CATF
Comments at 16 (recommending that the
Commission follow the CEQ’s Interim GHG
Guidance).
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connection of renewable energy projects
onto the grid.456 Several commenters
state that the Commission or the
applicant should include information
on how a transmission project would
impact the climate due to upstream
GHG emissions from the generation of
electricity—and the Commission’s FPA
determination should consider this
analysis.457 The commenters indicate
that data and models exist to estimate
these changes and constitute a
reasonably foreseeable impact.
Conversely, Senator Barrasso states that
the Commission should not apply CEQ’s
Interim GHG Guidance to electric
transmission facility reviews,
questioning its applicability to the
Commission as an independent
agency.458
377. Policy Integrity states that the
Commission should explicitly require
that cumulative impacts analyses
include increased exposure to criteria
pollutants even when the overall
modeled impacts remain below the
Clear Air Act’s National Ambient Air
Quality Standards (NAAQS).459 It notes
that the NAAQS are not set at a level of
zero risk, and that sub-NAAQS impacts
can be especially significant in
environmental justice communities with
certain sensitive receptors.
Additionally, Policy Integrity requests
that the Commission consider the health
impacts that environmental justice
communities face under higher levels of
criteria pollutants, including from
power-system impacts, even when the
NAAQS are not exceeded.460
378. Interior and Arizona Game and
Fish recommend considering the effect
of noise from the proposed project on
wildlife and habitat.461 In regard to the
effects of noise in sensitive wildlife
habitats on threatened and endangered
species, Interior recommends that the
Commission require applicants to
address wildlife-specific noise
thresholds, like those specific to sage
grouse and other avian species that may
be relevant in significant wildlife areas.
iii. Commission Determination
379. We adopt the NOPR’s proposal to
add Resource Report 11—Air quality
and environmental noise with one
modification to clarify noise compliance
standards. We agree with commenters
that the Commission’s authority to
Comments at 19–20.
Center Comments at 2 and 5; Public
Interest Organizations Comments at 108–114; Policy
Integrity Comments at 2 and 4–17.
458 Senator Barrasso Comments at 2 and 6.
459 Policy Integrity Comments at 43–44.
460 Policy Integrity Comments at 44.
461 Interior Comments at 1; Arizona Game and
Fish Comments at 2.
require submission of information to
assess the potential for air quality and
environmental noise impacts from the
development of an energy infrastructure
project is well-established under law,
and necessary for the Commission to
achieve its statutory obligations under
the FPA, NEPA, and the Clean Air Act.
380. In response to the Chamber of
Commerce’s comments, we clarify that
the Commission is required under
NEPA to consider impacts from the
proposed project that are reasonably
foreseeable.462 While the scope of
project impacts that are reasonably
foreseeable is a fact-specific
determination, we note that such
impacts may include emissions due to
construction, operation, and
maintenance of proposed transmission
facilities.
381. In addition to NEPA, the
Commission has further responsibilities
under the Clean Air Act.463 Specifically,
under EPA’s General Conformity
regulations,464 the Commission must
address whether an action will result in
construction or operation emissions that
exceed de minimis thresholds in areas
designated as having poor or recovering
air quality.
382. We are adopting the proposed
requirement for applicants to provide an
estimate of reasonably foreseeable
emissions from construction, operation,
and maintenance of the project facilities
to ensure that the Commission meets its
NEPA obligation to take a ‘‘hard look’’
at environmental impacts and so that
the Commission can satisfy its Clean Air
Act obligations. In response to ELCON’s
comments, we clarify that the Air
quality and environmental noise
resource report does not require an
applicant to mitigate impacts, but rather
requires the applicant to submit
information about any proposed
mitigation of impacts. We also clarify, in
response to ACORE’s and ACEG’s
comments, that the necessary analysis of
emissions impacts will vary based on
the factual circumstances, including
whether such impacts are reasonably
foreseeable.465
383. We disagree that upstream
emissions, including GHGs, from a
proposed project should always be
provided by the applicant. As noted
above, the proposed Air quality and
environmental noise resource report
requires applicants to estimate the
456 ACEG
457 Sabin
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462 42
U.S.C. 4332(2)(C).
U.S.C. 7506(c).
464 40 CFR 93.150–93.165 (2023).
465 We will not opine on the applicability of
CEQ’s Interim GHG Guidance in this final rule,
which relates to the Commission’s own evaluation
of GHG emissions and not the information that
applicants must file in the resource report.
463 42
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reasonably foreseeable emissions from
the proposed project, and the scope of
project effects that are reasonably
foreseeable is a fact-specific
determination made on a case-by-case
basis. We find that the NOPR’s proposed
regulations are sufficient to afford the
flexibility needed for applicants to
include the appropriate scope of
emissions to support the Commission’s
NEPA analysis, which will use relevant
and applicable guidance at the time of
each analysis. If upstream emissions are
determined, based on the factual
circumstances, to be reasonably
foreseeable and caused by the proposed
project, the Commission may request
any needed information and assess
those emissions under NEPA.
384. We decline Policy Integrity’s
request to specify the content of
cumulative impacts analyses because
Policy Integrity’s comments appear to
focus on the Commission’s cumulative
impact analyses under NEPA and not
the information that applicants must file
in the resource report. The proposed Air
quality and environmental noise
resource report requires sufficient
information for Commission staff to
review the magnitude and nature of
emissions on a project-by-project basis
to determine whether those emissions
will have an impact on, among other
things, local and regional air quality and
environmental justice communities. If
case-specific circumstances require
more information to address cumulative
air quality impacts, Commission staff
may request supplemental information
from the applicant.
385. We decline to adopt specific
requirements in the Air quality and
environmental noise resource report to
address wildlife-specific noise impacts.
We note that Commission staff consults
with relevant resource agencies to
identify potential impacts, including
noise impacts, on sensitive habitats and
federally listed threatened or
endangered species during the NEPA
review process and the consultation
process under section 7 of the
Endangered Species Act 466 for a
proposed project. Accordingly, impacts
on wildlife and wildlife-specific noise
thresholds are best considered on a
case-by-case basis while working with
applicable agencies.
386. Finally, this final rule modifies
proposed § 380.16(m)(4)(i)(D) to clarify
the applicant’s responsibilities
regarding operational noise estimates
and applicable State and local noise
regulations, consistent with the
Commission’s noise analyses in natural
466 16
U.S.C. 1536(a)(2).
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gas proceedings.467 Specifically, we
clarify that the applicant must
demonstrate that noise attributable to
any proposed substation or appurtenant
facility does not exceed a day-night
sound level of 55 decibels on the Aweighted scale at any pre-existing noise
sensitive area and compare the
proposed project’s operational noise
estimates with applicable State and
local noise regulations.
h. Resource Report 12—Alternatives
i. NOPR Proposal
387. This resource report requires the
applicant to describe alternatives to the
project, including the ‘‘no action’’
alternative, and to compare the
environmental impacts of such
alternatives. In the NOPR, the
Commission proposed only minor,
clarifying edits to this resource report.
ii. Comments
388. California Commission states that
the Commission should consider nonwire alternatives.468 Similarly, North
Carolina Commission and Staff urge the
Commission to require applicants to
demonstrate that the project is
preferable to reasonably available
alternatives to reduce congestion,
including additional generation, nonwire alternatives, and other lessintrusive or less-costly transmission
projects.469
389. Public Interest Organizations
advocate for a robust consideration of
alternatives, and request that the
Commission amend its regulations to
require the consideration of
accomplishing the proposed objectives
of a transmission project through the
use of other systems or energy
conservation, and require an analysis of
alternative routes, similar to the
Commission’s requirement for natural
gas pipeline projects.470 Commenters
further state that although the
Commission may only approve
transmission projects within National
Corridors, considering alternative routes
outside of National Corridors is still
467 Commission staff routinely asks applicants in
natural gas proceedings to provide information
about State and local noise regulations. See, e.g.,
Commission staff, Environmental Data Request,
Docket No. CP16–486, at 7 (issued Oct. 7, 2016)
(Question No. 6); Commission staff, Environmental
Data Request, Docket No. CP18–548, at 15 (issued
Dec. 18, 2018) (Question No. 60); see also FERC,
Guidance Manual for Environmental Report
Preparation—Volume. 1, at 4–130 (Feb. 2017),
https://www.ferc.gov/sites/default/files/2020-04/
guidance-manual-volume-1.pdf.
468 California Commission Comments at 4.
469 North Carolina Commission and Staff
Comments at 14.
470 Public Interest Organizations Comments at
123–125.
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46725
necessary, and that the Commission
should ensure that alternatives
proposed by the public during the
NEPA process and those developed
within the State siting process are
considered.471 Noting that many States
require the consideration of multiple
routes, OMS seeks clarity on whether
the Commission will evaluate multiple
routes and how the Commission defines
alternatives.472
390. The Yurok Tribe states that the
Commission must require consideration
of alternatives that do not negatively
affect Tribes, including alternative
routes or significant mitigation
measures.473 The Yurok Tribe further
requests the Commission require among
the alternatives at least one alternative
that includes mitigation measures for
which Tribes have communicated
explicit support.474 The Yurok Tribe
states that a robust study of alternatives
is critical not only to NEPA compliance,
but also to implement the FPA’s
mandate that approved projects be
‘‘sound national energy policy’’ and
‘‘consistent with the public interest.’’ 475
The Yurok Tribe states that
consideration of alternatives put forth
by Tribes is a fundamental part of the
NEPA process, the Tribal consultation
process, and the Federal trust duty.
Finally, the Yurok Tribe states that it
would be antithetical to the rulemaking
for the Commission to not incorporate a
requirement to consider any alternatives
put forth by Tribes and not provide indepth explanation if that alternative is
not pursued.476
391. Impacted Landowners and Rail
Electrification Council state that the
Commission should require at least one
alternative exploring the use of existing
road or rail rights-of-way, including the
consideration of buried transmission
lines to reduce environmental and
economic impacts, and reliability and
safety hazards.477 Rail Electrification
Council argues that the consideration of
proposed transmission lines within or
alongside existing rights-of-way serves
as a means of mitigating or avoiding
altogether potentially adverse
environmental, socio-economic,
reliability, or other impacts of a project;
promotes an efficient use of resources;
advances regional plans; and averts or
471 California Commission Comments at 7; Public
Interest Organizations Comments at 123–125.
472 OMS Comments at 5.
473 Yurok Tribe Comments at 40–42.
474 Id.
475 Id. at 41.
476 Id. at 41–42.
477 Impacted Landowners Comments at 18; Rail
Electrification Council Comments at 7–9.
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minimizes undue harm to
communities.478
392. Conversely, Public Interest
Organizations state that the
Commission’s regulations should clarify
how the requirement to consider using
existing rights-of-way can be rendered
more equitable through the
consideration of alternatives that
mitigate impacts to communities and
habitats that already bear burdens from
existing infrastructure.479 Public Interest
Organizations notes that, when facilities
are located in existing rights-of-way, the
NEPA analysis must include
alternatives that reduce cumulative
impacts in these rights-of-way.
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iii. Commission Determination
393. We adopt the NOPR’s proposal to
make minor, clarifying edits to the
Alternatives resource report. As
discussed below, we find it unnecessary
to add new requirements to this report
as suggested by commenters.
394. In response to comments
regarding non-wire, system, and energy
conservation alternatives; multiple route
alternatives; alternatives that use
existing rights-of-way; alternatives
outside of National Corridors; and
alternatives put forth by Tribes and
other stakeholders, NEPA requires the
Commission to consider and discuss
only reasonable alternatives.480 Based
on the Commission’s experience in
hydropower and natural gas pipeline
proceedings, the range of reasonable
alternatives can best be determined
based upon the facts of a specific siting
proposal. Under NEPA, an alternative
that the Commission considers must be
able to meet the action’s purpose and
need and must be technically and
economically feasible (i.e., not merely
speculative), both which vary based on
the circumstances.481 We therefore
decline requests to determine, on a
generic basis, reasonable alternatives
that must be analyzed in every case.
395. In response to comments
requesting that the Commission’s
regulations include information and
findings regarding alternatives as
developed within the State siting
process, we again note that the
478 Rail Electrification Council Comments at 8
(referencing https://nextgenhighways.org/; see also
ACEG, Report: Recommended Siting Practices for
Electric Transmission Developers, Sec. 4 ‘‘CoLocation in Existing Rights-of-Way’’ (Feb. 2023),
https://cleanenergygrid.org/portfolio/
recommended-siting-practices-electrictransmission-developers/).
479 Public Interest Organizations Comments at
130–131.
480 See American Rivers v. FERC, 201 F.3d 1186,
1200 (9th Cir. 2000).
481 See 42 U.S.C. 4332(C)(iii) (as amended by the
Builder Act).
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Commission will consider all reasonable
alternatives raised in a Commission
proceeding.
i. Resource Report 13—Reliability and
Safety
i. NOPR Proposal
396. This resource report 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.482
397. In the NOPR, the Commission
proposed to add a requirement that the
Reliability and safety resource report
include a discussion of any proposed
measures intended to ensure that the
facilities proposed by the applicant
would be resilient with respect to future
climate change impacts. The
Commission also proposed 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. Finally, given the proposed
addition of a new Air quality and
environmental noise resource report, the
NOPR also proposed to eliminate a
redundant requirement from the
Reliability and safety resource report
that the applicant must indicate the
noise level generated by the
transmission line.
ii. Comments
398. Sabin Center recommends that
the Commission require applicants to
submit information on expected future
climate change impacts and the
proposed project’s risk from and
resilience to future climate change
impacts.483
399. Impacted Landowners express
concern about the impact on workers
and farmers from exposure to the
electromagnetic fields from proposed
transmission lines, which would be
greater than the sporadic exposure to
the public, and request that this
additional hazard be considered.484
482 18
CFR 380.16(l).
Center Comments at 2, 9–10; National
Wildlife Federation Action Fund Comments at 1;
National Wildlife Federation Outdoors Comments
at 1.
484 Impacted Landowners Comments at 18.
483 Sabin
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400. Impacted Landowners state that
this resource report should be expanded
to address the applicant’s efforts to
prevent intentional physical acts to
destroy electric infrastructure.485
Additionally, Impacted Landowners
recommend that this resource report
explore the potential for the increased
reliability and safety of transmission
lines when buried on existing linear
rights-of-way or installed under bodies
of water.486
iii. Commission Determination
401. We adopt the NOPR’s proposed
changes to the Reliability and safety
resource report. No commenter raised
concerns with the proposed changes,
and we find that requiring this
additional information will support the
evaluation of the reliability and safety of
proposed projects. As discussed below,
we find it unnecessary to add new
requirements to this report in response
to comments.
402. In response to comments
regarding future climate change
impacts, no additional changes to the
regulations are needed because
§ 380.16(o)(3), as proposed and adopted
herein, requires applicants to disclose
any proposed measures to ensure that
the project facilities would be resilient
against future impacts—such as
subsidence, slope slumping, wildfires,
flooding, and storms—that could be
exacerbated by climate change. As part
of the NEPA analysis, Commission staff
would evaluate the site-specific risks of
the existing and future environment on
the proposed facilities.
403. As to Impacted Landowners’
comments urging consideration of
impacts from situational exposure to
electromagnetic fields, we decline to
adopt specific requirements in the
resource reports. The EPA 487 and the
National Institute of Environmental
Health Sciences 488 have concluded that
studies have not consistently shown
that exposure to electromagnetic fields,
even for workers over a typical
workday, constitutes a carcinogenic
risk. Therefore, we find it more
appropriate to address related concerns
as they are raised on a project-specific
basis.
404. Similarly, regarding intentional
physical attacks on infrastructure, we
485 Id.
at 18–19.
486 Id.
487 EPA, Electric and Magnetic Fields from Power
Lines, https://www.epa.gov/radtown/electric-andmagnetic-fields-power-lines.
488 National Institute of Environmental Health
Sciences, EMF Electric and Magnetic Fields
Associated with the Use of Electric Power (June
2002), https://www.niehs.nih.gov/health/topics/
agents/emf.
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decline to adopt additional
requirements in the resource report.
Based on our experience in natural gas
and hydroelectric proceedings, the risk
and potential impact of intentional
physical attacks are more appropriately
analyzed on a project-specific basis. As
part of the NEPA analysis for a
particular project, Commission staff
would identify the impact of the
proposed facilities on public safety risk.
Additionally, staff would analyze
reasonable project-specific alternatives,
such as undergrounding transmission
lines. During this analysis, each
alternative’s impact on public safety
would be considered.
j. Cumulative Impacts
i. NOPR Proposal
405. In addition to the substance of
the individual resource reports
described above, existing § 380.16
includes general requirements that
apply to each resource report. In the
NOPR, the Commission proposed a
revision to § 380.16(b)(3) 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.489
ii. Comments
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406. Several commenters request that
the Commission apply a robust
cumulative impacts analysis when
reviewing transmission proposals and
minimize and mitigate impacts on
wildlife, with clear evaluation
methodologies informed by the most
updated data and best available science,
including Indigenous Knowledge and
information from local communities.490
Arizona Game and Fish encourages the
Commission to further clarify that the
cumulative effects identified under
380.16(b)(3) consider all known or
potential projects that could occur
within the vicinity of the transmission
line and potential impacts on natural
resources, including wildlife habitat and
fragmentation.491
407. The Yurok Tribe states that the
Commission must recognize a broad
range of cumulative impacts.492 The
Tribe indicates that fragmented lands
are a form of cumulative environmental
injustice often experienced by Tribes;
therefore, the cumulative effects
analyses must also consider the
489 See
40 CFR 1508.1(g)(3) (2023).
490 National Wildlife Federation Comments at 2;
National Wildlife Federation Action Fund
Comments at 1; National Wildlife Federation
Outdoors Comments at 1.
491 Arizona Game and Fish Comments at 2.
492 Yurok Tribe Comments at 39–40.
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cumulative disruption that projects can
cause to cultural resources, cultural
landscapes, and sacred sites.493 The
Tribe further claims that the
Commission must evaluate a
transmission project’s impacts in the
context of all prior harms that Tribes’
lands, cultural resources, and cultural
landscapes have sustained, and that to
properly study cumulative effects, the
Commission must build in time for
Tribal feedback in the development and
review of NEPA documents.494 Public
Interest Organizations also indicate that
placing new infrastructure in existing
rights-of-way can exacerbate existing
impacts on habitats and communities,
which may already bear
disproportionate burdens.495
iii. Commission Determination
408. We adopt the revision to
§ 380.16(b)(3) as proposed in the NOPR.
As proposed and adopted herein,
§ 380.16(b)(3) requires each resource
report to identify the effects of
construction, operation, 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. We find
this language appropriately defines the
scope of cumulative impact analyses, as
is defined in CEQ’s NEPA regulations.
409. We acknowledge the
Commission’s responsibility to conduct
a cumulative impact analysis
independent from the applicant’s input,
consistent with the Commission’s
responsibilities under NEPA and CEQ’s
regulations. The scope of each
cumulative impact analysis, including
other projects to consider, past Tribal
harms, and the specific resources that
may be impacted, will vary on a caseby-case basis.
410. In response to comments, we
note that concerns regarding fragmented
lands and siting new infrastructure in
existing rights-of-way as potential forms
of cumulative environmental injustice
and disproportionate burdens will be
addressed in project-specific
proceedings. Commission staff would
evaluate these concerns, as appropriate,
in its cumulative impacts analysis
pursuant to NEPA.
5. Revisions to 18 CFR 380.13 and
380.14
411. We adopt the NOPR’s proposed
amendments to §§ 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. As the
Commission explained in the NOPR, the
prior omission of these cross-references
appears to be an oversight. We also
adopt the NOPR’s proposed revision to
§ 380.14 to correct the legal citation for
section 106 of the NHPA,496 following
the act’s recodification in title 54 of the
U.S. Code.
III. Information Collection Statement
412. The Paperwork Reduction Act 497
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 contained in
final rules published in the Federal
Register.498 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.
413. Public Reporting Burden: The
Commission is revising its regulations
governing applications for permits to
site transmission facilities under section
216 of the FPA. This final rule modifies
certain reporting and recordkeeping
requirements included in FERC–729
(OMB Control No. 1902–0238).499
414. The 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
revisions are also intended 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 revisions
have information collection
implications. For example, the final rule
requires 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 submit monthly
496 54
U.S.C. 306108.
U.S.C. 3501–3521.
498 See 5 CFR 1320.12 (2023).
499 FERC–729 includes the reporting and
recordkeeping requirements for ‘‘Electric
Transmission Facilities.’’
497 44
493 Id.
at 39.
at 39–40.
495 Public Interest Organizations Comments at
126–131.
494 Id.
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compliance updates during the prefiling and application review
processes; 500
• provide additional congestion and
system analysis information during the
pre-filing process and as part of the
application;
• develop and file, as part of the
Project Participation Plan, an
Environmental Justice Public
Engagement Plan describing completed
and planned targeted outreach to
environmental justice communities;
• Develop and file, as part of the
Project Participation Plan, a Tribal
Engagement Plan describing completed
and planned targeted outreach to
identified Indian Tribes;
• include in mailed notifications to
landowners written translations under
certain circumstances, publish project
notifications in online or hard copy
periodicals and submit the same to
available county and municipal
government online bulletin boards, and
provide the Commission with proof of
publication;
• 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 revisions represent an increase
in information collection requirements
and burden for FERC–729.
415. The Commission recognizes that
some of the information collection
activities proposed in the NOPR and
updated in this final rule are novel.
Therefore, the Commission sought
comments on the burden hours and
costs associated with the requirements
contained in the NOPR.
416. The estimated burden and cost
for the requirements contained in this
final rule follow.
ANNUAL CHANGES RESULTING FROM THE FINAL RULE IN DOCKET NO. RM22–7–000
Number of
respondents
Number of
responses 501
per respondent
Total number of
responses
Avg. burden hrs. &
cost per response 502
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.; $960,000 ..
9,600 hrs.; $960,000.
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Revisions in RM22–7–000
Applicant Code of Conduct 503 ............................................
Environmental Justice Public Engagement Plan ................
Tribal Engagement Plan .....................................................
Project Notification Requirements 505 .................................
Congestion and System Analysis Data 506 .........................
Other Updates to 18 CFR pt. 50 507 ...................................
Resource Report: Tribal Resources ...................................
Resource Report: Environmental Justice ...........................
Resource Report: Air Quality & Environmental Noise ........
Information on Visual Impacts ............................................
Other Updates to 18 CFR pt. 380 508 .................................
504 1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
160 hrs; $16,000 ........
24 hrs.; $2,400 ...........
24 hrs.; $2,400 ...........
144 hrs.; $14,400 .......
165 hrs.; $16,500 .......
20 hrs.; $2,000 ...........
43 hrs.; $4,300 ...........
80 hrs.; $8,000 ...........
296 hrs.; $29,600 .......
104 hrs.; $10,400 .......
182 hrs.; $18,200 .......
160 hrs.; $16,000.
24 hrs.; $2,400.
24 hrs.; $2,400.
144 hrs.; $14,400.
165 hrs.; $16,500.
20 hrs.; $2,000.
43 hrs.; $4,300.
80 hrs.; $8,000.
296 hrs.; $29,600.
104 hrs.; $10,400.
182 hrs.; $18,200.
REQUESTED TOTAL ..................................................
PREVIOUSLY APPROVED PLUS REQUESTED
TOTAL.
........................
........................
..........................
..........................
11
12
.....................................
.....................................
1,242 hrs.; $124,200.
10,842 hrs.;
$1,084,200.
417. Titles: FERC–729—Electric
Transmission Facilities.
418. Action: Revisions to information
collection FERC–729.
419. OMB Control Nos.: 1902–0238
(FERC–729).
420. Respondents: Entities proposing
to construct electric transmission
facilities pursuant to the Commission’s
authority under section 216 of the FPA.
421. Frequency of Information:
Ongoing.
500 These requirements would only apply to
applicants who elect to comply with the Applicant
Code of Conduct set forth in proposed § 50.12.
501 We consider the filing of an application,
including the mandatory pre-filing information, to
be a ‘‘response.’’
502 The estimates for cost per response are derived
using the following formula: Average Burden Hours
per Response * $100 per Hour = Average Cost per
Response. The hourly cost figure is the FY2024
FERC average annual salary plus benefits
($207,786/year or $100/hour). Commission staff
estimates that industry costs for salary plus benefits
are similar to Commission costs. We note that the
NOPR provided cost estimates in 2022 dollars.
503 Notwithstanding that compliance with the
Applicant Code of Conduct is voluntary, we are
providing the estimated burden hours associated
with such compliance.
504 After implementation of this final rule, we
estimate one application for a permit to site electric
transmission facilities will be filed per year.
505 This category covers the updates to the project
notification requirements in § 50.4(c) that require an
applicant to provide written translation under
certain circumstances, publish project notifications
in other appropriate print and digital media outlets
in addition to newspaper publication, submit proof
of publication, and include additional material in
the project notifications mailed to affected
landowners (e.g., the Landowner Bill of Rights).
506 This category covers the 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.
507 This category covers additional 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), a reduction in burden (eliminating the
requirement that an applicant provide seven paper
copies of an application, exhibits, and other
submittals), and no change in burden (revising the
requirement to provide proposals for prospective
third-party contractors). We note that eight burden
hours that the NOPR reported in this category have
been relocated to ‘‘Project Notification
Requirements,’’ a new category added to reflect
several project notification requirements adopted in
this final rule.
508 This category covers a variety of updates to
§ 380.16 of the Commission’s regulations that
require an applicant to develop and submit
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.
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422. 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
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.
423. Internal Review: The
Commission has reviewed the 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.
424. Interested persons may obtain
information on the reporting
requirements by contacting the Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC 20426
[Attention: Jean Sonneman, Office of the
Executive Director], by email to
DataClearance@ferc.gov or by phone
(202) 502–8663.
425. 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).
IV. Environmental Analysis
426. The Commission is required to
prepare an EA or an EIS for any action
that may have a significant effect on the
human environment.509 The
509 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).
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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.510 Because the final rule falls
within this categorical exclusion,
preparation of an EA or an EIS is not
required.
V. Regulatory Flexibility Act
427. The Regulatory Flexibility Act of
1980 (RFA) 511 generally requires a
description and analysis of final 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
applicable statutes and minimize any
significant economic impact on small
entities.512 In lieu of preparing a
regulatory flexibility analysis, an agency
may certify that a final rule will not
have a significant economic impact on
a substantial number of small
entities.513
428. The Small Business
Administration’s (SBA) Office of Size
Standards develops the numerical
definition of a small business.514 The
SBA size standard for electric utilities is
based on the number of employees,
including affiliates.515 Under SBA’s size
standards, a transmission owner
covered under the category of Electric
Bulk Power Transmission and Control
(NAICS code 221121) 516 is small if,
including its affiliates, it employs 500 or
fewer people.517
429. 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.518 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
510 18
CFR 380.4(a)(2)(ii) (2023).
U.S.C. 601–612.
512 Id. 603(c).
513 Id. 605(b).
514 13 CFR 121.101 (2023).
515 Id. 121.201.
516 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/.
517 13 CFR 121.201 (Sector 22—Utilities).
518 Order No. 689, 117 FERC ¶ 61,202 at P 73.
511 5
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46729
RFA.519 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.
430. Accordingly, pursuant to section
605(b) of the RFA, the Commission
certifies that this final rule would not
have a significant economic impact on
a substantial number of small entities.
VI. Document Availability
431. 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).
432. 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.
433. User assistance is available for
eLibrary and the FERC’s website during
normal business hours from FERC
Online Support at (202) 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.
VII. Effective Date and Congressional
Notification
434. These regulations are effective
July 29, 2024. The Commission has
determined, with the concurrence of the
Administrator of the Office of
Information and Regulatory Affairs of
OMB, that this rule is not a major rule
as defined in section 251 of the Small
Business Regulatory Enforcement
519 Id.
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Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules and Regulations
Fairness Act of 1996.520 This rule is
being submitted to the Senate, House,
Government Accountability Office, and
Small Business Administration.
By the Commission.
Issued May 13, 2024.
Debbie-Anne A. Reese,
Acting Secretary.
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.
In consideration of the foregoing, the
Commission amends 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 is
revised to read as follows:
§ 50.2
Authority: 16 U.S.C. 824p; DOE Delegation
Order No. S1–DEL–FERC–2006.
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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:
§ 50.3 Applications/pre-filing; rules and
format.
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■
§ 50.1
Definitions.
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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 Indian
Tribe; any affected landowner; any
environmental justice community
member; or any other interested person
or organization.
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Environmental justice community
means any 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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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 entities in the
520 5
U.S.C. 804(2).
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[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:
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(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.
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■ 5. Amend § 50.4 as follows:
■ a. Revise paragraphs (a)(1) through (3);
■ b. Add paragraphs (a)(4) and (5); and
■ c. Revise paragraphs (b)(1)(ii) and
(c)(1) through (4).
The revisions and addition read as
follows:
§ 50.4
Stakeholder participation.
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(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;
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(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
people with limited English proficiency.
This plan must also describe how the
applicant will conduct outreach to
environmental justice communities
about any potential mitigation
measures.
(5) Includes a Tribal Engagement Plan
that addresses all targeted outreach to
identified Indian Tribes. This plan must
summarize comments received from
potentially affected Indian Tribes 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. This plan must also
describe how the applicant will engage
Indian Tribes about any potential
mitigation measures.
(b) * * *
(1) * * *
(ii) Complete copies of all filed
materials are available on the project
website.
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(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, and Federal
governments and agencies involved in
the project; Indian Tribes; 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
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representatives, an interest in the
proposed project. Notification must be
made:
(i) By certified or first class mail, sent:
(A) Within 14 days after the Director
notifies the applicant of the
commencement of the pre-filing process
under § 50.5(d) (Pre-filing Notification);
(B) Within 3 business days after the
Commission notices the application
under § 50.9 (Application Notification);
and
(C) With written translations in the
applicable language(s) to all affected
landowners and landowners with a
residence within a quarter mile of the
edge of the construction right-of-way of
the proposed project in a census block
group in which the number of limited
English proficiency households that
speak the same language constitutes at
least five percent of the census block
group or 1,000 people, whichever is
less.
(ii) By twice publishing a Pre-filing
Notification and Application
Notification, in a daily or weekly
newspaper of general circulation in each
county in which the project is located
and, as appropriate, Tribal newspapers
and other online or hard copy
periodicals of general circulation
serving the affected area. These
notifications must also be submitted to
any available county and municipal
government online bulletin boards and
other similar community resources. All
such publications and submittals should
occur no later than 14 days after the
date that a docket number is assigned
for the pre-filing process or to the
application. The applicant must
promptly provide the Commission with
proof of any publication.
(2) Project notifications must include
specified content.
(i) Any Pre-filing Notification sent by
mail or published in a newspaper,
periodical, or county/municipal online
bulletin board or community resource
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 notification need only
refer to the pamphlet and indicate the
website address where 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
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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 ongoing
State siting proceeding(s) and describing
the status of any such State siting
proceeding(s).
(ii) In addition to the requirements of
paragraph (c)(2)(i) of this section, any
Pre-filing 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 § 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 these notifications has
not yet been identified when the
notifications 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 notification.
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■ 6. Amend § 50.5 as follows:
■ a. Revise paragraph (c) introductory
text, the first sentence of paragraph
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(c)(3) introductory text, paragraph
(c)(3)(i), the first sentence of paragraph
(c)(5), and revise paragraph (c)(6);
■ 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)(10) and (11),
respectively;
■ h. Add new paragraphs (e)(7) and (8)
and add paragraph (9); and
■ i. Revise the first sentence of newly
redesignated paragraph (e)(11).
The revisions and additions read as
follows:
§ 50.5
Pre-filing procedures.
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(c) * * * An applicant’s pre-filing
request cannot be filed prior to the
initial consultation and must include
the following information:
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(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
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(5) A description of completed work,
including engagement with Federal,
State, and local agencies, Indian Tribes,
and stakeholders; 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. * * *
(6) Proposals for all prospective thirdparty contractors from which
Commission staff may make a selection
to assist in the preparation of the
requisite NEPA document, if the
Director determined a third-party
contractor would be necessary in the
Initial Consultation meeting.
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(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
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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
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(e) * * *
(3) * * *
(i) Provide project notification in
compliance with the requirements of
§ 50.4(c); and
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(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. * * *
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(7) Within 30 days, file supporting
information showing how the proposed
project will reduce capacity constraints
and congestion on the transmission
system, including:
(i) For each transmission planning
region that would be crossed by the
proposed project, the most recent
regional transmission plan; and
(ii) Expert witness testimony and
other relevant information submitted
with the State siting application(s),
where applicable.
(8) Within 30 days, file the full reports
of the System Impact Study for the
proposed project if the reports are
already completed. If the reports are not
already completed at this time, the
applicant must alternatively submit a
status report that includes when during
the pre-filing process the full reports
will be submitted.
(9) Within 30 days of submission of
the full System Impact Study reports,
file a draft Exhibit H—System analysis
data required in § 50.7. The pre-filing
process will not be concluded until all
submittals required in paragraphs (e)(8)
and (9) of this section are submitted.
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(11) 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. * * *
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■ 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);
■ b. Add paragraph (e)(3)(iii); and
■ c. Revise paragraph (i).
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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;
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(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.
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(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.
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■ 8. Amend § 50.7 as follows:
■ a. Revise the introductory text and
paragraphs (g)(1)(i) and (vi), (g)(2)(ii)
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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 (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.
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(g) * * *
(1) * * *
(i) Name, point of receipt, and point
of delivery of the project;
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(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;
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(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
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(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:
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(6) If an underground or underwater
transmission line is proposed, the
following additional information also
must be provided:
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(ii) Type of cable and a description of
any required supporting equipment,
such as pressurizing plants;
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(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.
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(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. * * *
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(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 system
where the proposed project will be
located and, as relevant, the 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.
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(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
any parties to the agreements or
arrangements.
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§ 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 following the
word ‘‘rejected’’ in paragraph (c).
■ 10. Amend § 50.9 by revising
paragraph (b) to read as follows:
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§ 50.9
Notice of application.
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(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.
■ 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) and add paragraphs (d)(1)
and (2);
■ c. Remove the word ‘‘permitee’’ in the
first sentence of paragraph I 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:
§ 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. * * *
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(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
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(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).
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■ 12. Add § 50.12 to read as follows:
§ 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 during
the permitting process is one way to
demonstrate to the Commission that
such good faith efforts have been made
with respect to affected landowners.
(a) Applicant code of conduct. To
promote good faith engagement with
affected landowners, applicants
committing to comply with the
Applicant Code of Conduct must for the
duration of the pre-filing and
application review processes:
(1) Develop and maintain 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
Notification required by § 50.4(c)(1)(i)
and (ii), provide to each affected
landowner, prior to, during, or within 3
business days of 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, an
explanation that affected landowners
may request from applicants copies of
discussion log entries that pertain to
their property and how to make such
requests, 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 inperson, the applicant must offer to
provide the affected landowner at least
one paper copy of the document. If the
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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, and presents a photo
identification badge at the beginning of
any discussion with an affected
landowner, and provides the
representative’s and applicant’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. Provide an affected landowner
upon request a copy of any discussion
log entries that pertain to that affected
landowner’s property.
(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, Tribal, 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, Tribal, 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.
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(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.
(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)(11):
(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)(11),
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.
(4) File monthly status reports
providing the information required in
paragraphs (b)(2) and (3) of this section,
for the duration of the application
review process.
(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
recordkeeping, information-sharing, or
other conduct;
(iii) An explanation of how the
alternative method is equal to or better
than compliance with the Applicant
Code of Conduct as a means to ensure
the good faith efforts standard is met;
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(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
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 a new paragraph (f).
The addition reads as follows:
■
§ 380.2
Definitions and terminology.
*
*
*
*
*
(f) Environmental justice community
means any 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’’ after the reference to
‘‘§ 380.12’’.
■
§ 380.14
[Amended]
16. Amend § 380.14 in paragraph (a)
introductory text as follows:
■ a. Remove the reference ‘‘(16 U.S.C.
470(f))’’ in the first sentence and add in
its place the reference ‘‘(54 U.S.C.
306108)’’; and
■ b. Add ‘‘or § 380.16(f), as applicable’’
after the reference ‘‘380.12(f)’’ in the
second sentence.
■ 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 paragraphs (e)(2) and (3), the
first two sentences of paragraph (e)(4),
the first and third sentences of
■
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paragraph (e)(5), and revise paragraph
(e)(6);
■ d. Redesignate paragraphs (e)(7) and
(8) as paragraphs (e)(8) and (9);
■ e. Add new paragraph (e)(7);
■ f. Revise newly redesignated
paragraphs (e)(8) and (9);
■ g. Revise paragraphs (f)(1)(i), (iii), (iv),
and (v), (f)(2) introductory text, and the
first sentence of paragraph (f)(4);
■ h. Revise the first sentence of
paragraph (g) introductory text and
paragraphs (g)(2), (3) and (6);
■ i. Redesignate paragraphs (k) through
(m) as paragraphs (n) through (p);
■ j. Redesignate paragraphs (h) through
(j) as paragraphs (j) through (l);
■ k. Add new paragraphs (h) and (i);
■ l. Revise the heading for newly
redesignated paragraph (j), remove
‘‘Resource Report 6 must:’’ and add in
its place ‘‘Resource Report 8 must:’’ in
newly redesignated paragraph (j)
introductory text, and revise newly
redesignated paragraph (j)(3);
■ m. Revise the heading for newly
redesignated paragraph (k) and revise
paragraphs (k) introductory text and
(k)(2) and (3);
■ n. Add paragraph (k)(4);
■ o. Revise newly redesignated
paragraph (l);
■ p. Add new paragraph (m);
■ q. In newly redesignated paragraph
(n):
■ i. Revise the heading;
■ ii. Revise the first sentence of the
introductory text and remove ‘‘Resource
Report 9 must:’’ and add in its place
‘‘Resource Report 12 must:’’ in the
introductory text;
■ iii. Revise the second sentences in
paragraphs (n)(2)(i) and (ii);
■ r. Revise the heading for newly
redesignated paragraph (o) and its
introductory text, newly redesignated
paragraphs (o)(1) through (4), the first
sentence of newly redesignated
paragraph (o)(5), and revise newly
redesignated paragraph (o)(7); and
■ s. Revise the heading for newly
redesignated paragraph (p), the second
sentence of newly redesignated
paragraph (p) introductory text, the
third sentence of newly redesignated
paragraph (p)(2), and revise 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.
*
*
*
*
*
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(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,
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 0.5mile-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-mile-
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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 § 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) * * *
(2) Describe terrestrial habitats,
including wetlands, typical wildlife
habitats and corridors, and rare, unique,
or otherwise significant habitats that
might be affected by the proposed
action. Describe typical species that
have commercial, recreational, or
aesthetic value.
(3) Describe and provide the acreage
of vegetation cover types that would be
affected, including unique ecosystems
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or communities, such as remnant
prairie, interior forest, or old-growth
forest, or significant individual plants,
such as old-growth specimen trees.
Describe any areas of noxious weeds
and non-native species in the project
area.
(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,
including migratory birds and bald and
golden eagles; 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) Identify migratory bird species and
bald and golden eagles that potentially
occur in the vicinity of the project,
including bald and golden eagle nesting
and roosting sites, migratory bird
flyways, and any habitat/sites important
to migratory bird breeding, feeding, and
sheltering.
(8) Describe proposed, site-specific
mitigation measures to minimize
impacts on fisheries; wildlife, including
migratory birds and bald and golden
eagles; and vegetation.
(9) 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, including migratory birds and
bald and golden eagles; fisheries; and
vegetation, and the applicant’s response
to the recommendations.
(f) * * *
(1) * * *
(i) Documentation of the applicant’s
initial cultural resource consultations,
including engagement with Indian
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Tribes 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. * * *
*
*
*
*
*
(2) Evaluate the impact of any
substantial migration of people on
governmental facilities and services and
plans to reduce the impact on the local
infrastructure.
(3) Describe on-site manpower
requirements and payroll during
construction, operation, and
maintenance, including the number of
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.
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(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 Tribal
traditional cultural and religious
properties, whether on or off of any
Indian reservation.
(5) Ensure that information made
available under this section does 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.
(6) Describe any proposed mitigation
measures to avoid or minimize impacts
on Tribal resources, including any input
received from Indian Tribes on the
proposed measures and how the input
informed the proposed measures.
(i) Resource Report 7—Environmental
justice. This report must address the
effects of the proposed project on
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.
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Provide maps depicting identified
environmental justice communities in
relation to the proposed project facilities
using localized 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 disproportionate 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
disproportionate 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.
*
*
*
*
*
(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;
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damage to drainage tile systems due to
movement of construction vehicles and
excavating 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.
(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
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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 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.
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(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
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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. Identify, and justify the
selection of, the tools or methodologies
used to develop the information
required in 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 (daynight) 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,
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
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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 noise attributable
to any proposed substation or
appurtenant facility does not exceed a
day-night sound level (Ldn) of 55
decibels on the A-weighted scale (dBA)
at any pre-existing noise-sensitive area.
Compare the proposed project’s
operational noise estimates with
applicable State and local noise
regulations.
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(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. * * *
*
*
*
*
*
(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. * * *
*
*
*
*
*
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(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 appendices will not
appear in the Code of Federal Regulations.
Appendix A—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
eminent domain unless and until the
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46739
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 toll
free at 1–866–208–3372) 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.
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Appendix B: Abbreviated Names of
Commenters
Advanced Energy United ...............................................................................................
Alabama Public Service Commission ............................................................................
American Chemistry Council .........................................................................................
American Clean Power Association ..............................................................................
American Council on Renewable Energy ......................................................................
American Farm Bureau Federation, Illinois Farm Bureau, Iowa Farm Bureau, Kansas Farm Bureau, Missouri Farm Bureau Federation, and other State Farm Bureaus.
Americans for a Clean Energy Grid ...............................................................................
Arizona Game and Fish Department .............................................................................
California Public Utilities Commission .........................................................................
Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock Indian
Tribe, and Upper Mattaponi Indian Tribe.
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Clean Air Task Force ......................................................................................................
Clean Energy Buyers Association ..................................................................................
ClearPath, Inc ..................................................................................................................
Conservation Law Foundation .......................................................................................
Earthjustice, National Wildlife Federation, Natural Resources Defense Council, NW
Energy Coalition, Sierra Club, Sustainable FERC Project, Union of Concerned
Scientists, and WE ACT for Environmental Justice.
Edison Electric Institute and WIRES .............................................................................
Electricity Consumers Resource Council ......................................................................
Environmental Defense Fund .........................................................................................
Environmental Law and Policy Center, National Audubon Society, and Vote Solar
Georgia Public Service Commission ..............................................................................
Impacted Landowners ....................................................................................................
Institute for Policy Integrity at New York University School of Law .........................
Kansas Corporation Commission ...................................................................................
Kentucky Public Service Commission ...........................................................................
Land Trust Alliance ........................................................................................................
Los Angeles Department of Water & Power ..................................................................
Louisiana Public Service Commission ..........................................................................
Maryland Public Service Commission ..........................................................................
Michigan Public Service Commission ...........................................................................
National Wildlife Federation Action Fund (submitting 10,753 comments by fund
supporters) and National Wildlife Federation Outdoors (submitting 332 comments by hunter and angler members).
National Wildlife Federation, Environmental League of Massachusetts, Montana
Wildlife Federation, and Nevada Wildlife Federation.
New England States Committee on Electricity .............................................................
New Jersey Board of Public Utilities .............................................................................
New Jersey Division of Rate Counsel, Maryland Office of the People’s Counsel,
and Delaware Division of the Public Advocate.
New York State Public Service Commission ................................................................
Niskanen Center ..............................................................................................................
North Carolina Utilities Commission and North Carolina Utilities Commission
Public Staff.
North Dakota Public Service Commission ....................................................................
Organization of MISO States, Inc ..................................................................................
Pennsylvania Office of Consumer Advocate .................................................................
Pennsylvania Public Utility Commission ......................................................................
Public Utility Commission of Texas ..............................................................................
Rail Electrification Council ............................................................................................
Sabin Center for Climate Change Law, Columbia Law School ....................................
Solar Energy Industries Association ..............................................................................
Southern Company Services, Inc ...................................................................................
U.S. Chamber of Commerce, Global Energy Institute ...................................................
U.S. Department of the Interior .....................................................................................
U.S. Representatives Cathy McMorris Rodgers and Jeff Duncan .................................
U.S. Senator Charles Schumer .......................................................................................
U.S. Senator John Barrasso .............................................................................................
Yurok Tribe .....................................................................................................................
Advanced Energy United.
Alabama Commission.
American Chemistry Council.
ACP.
ACORE.
Farm Bureaus.
ACEG.
Arizona Game and Fish.
California Commission.
Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe.
CATF.
Clean Energy Buyers.
ClearPath.
CLF.
Public Interest Organizations.
EEI.
ELCON.
EDF.
Environmental Law & Policy Center.
Georgia Commission.
Impacted Landowners.
Policy Integrity.
Kansas Commission.
Kentucky Commission.
Land Trust Alliance.
Los Angeles DWP.
Louisiana Commission.
Maryland Commission.
Michigan Commission.
National Wildlife Federation Members.
National Wildlife Federation.
NESCOE.
New Jersey Board.
Joint Consumer Advocates.
New York Commission.
Niskanen.
North Carolina Commission and Staff.
North Dakota Commission.
OMS.
Pennsylvania Consumer Advocate.
Pennsylvania Commission.
Texas Commission.
Rail Electrification Council.
Sabin Center.
SEIA.
Southern.
Chamber of Commerce.
Interior.
Representatives McMorris Rodgers and Duncan.
Senator Schumer.
Senator Barrasso.
Yurok Tribe.
[FR Doc. 2024–10879 Filed 5–28–24; 8:45 am]
BILLING CODE 6717–01–P
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]]>Agencies
[Federal Register Volume 89, Number 104 (Wednesday, May 29, 2024)]
[Rules and Regulations]
[Pages 46682-46740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10879]
[[Page 46681]]
Vol. 89
Wednesday,
No. 104
May 29, 2024
Part IV
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; Final Rule
Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules
and Regulations
[[Page 46682]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 50 and 380
[Docket No. RM22-7-000; Order No. 1977]
Applications for Permits To Site Interstate Electric Transmission
Facilities
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission amends its
regulations governing applications for permits to site electric
transmission facilities under the Federal Power Act, as amended by the
Infrastructure Investment and Jobs Act of 2021, and amends its National
Environmental Policy Act procedures.
DATES: This rule is effective July 29, 2024.
FOR FURTHER INFORMATION CONTACT:
Maggie Suter (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-6344, [email protected]
Tara DiJohn Bruce (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8671, [email protected].
SUPPLEMENTARY INFORMATION:
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
E. Notice of Proposed Rulemaking........................ 17
II. Discussion.............................................. 26
A. Commission Jurisdiction and State Siting Proceedings. 26
1. IIJA Amendments and Commission Jurisdiction Under 27
FPA Section 216(b)(1)..............................
2. Commencement of Pre-Filing....................... 38
B. Eminent Domain Authority and Applicant Efforts To 55
Engage With Landowners and Other Stakeholders..........
1. NOPR Proposal.................................... 56
2. Comments......................................... 60
3. Commission Determination......................... 73
C. Environmental Justice Public Engagement Plan......... 98
1. NOPR Proposal.................................... 98
2. Comments......................................... 100
3. Commission Determination......................... 109
D. Revisions to 18 CFR Part 50.......................... 119
1. Section 50.1--Definitions........................ 119
2. Section 50.3--Filing and Formatting Requirements. 159
3. Section 50.4--Stakeholder Participation.......... 160
4. Section 50.5--Pre-Filing Procedures.............. 223
5. Section 50.6--General Content of Applications.... 246
6. Section 50.7--Application Exhibits............... 257
7. Section 50.11--General Permit Conditions......... 261
8. Clarifying Revisions to 18 CFR Part 50........... 265
E. Additional Considerations Raised by Commenters....... 266
1. Grid-Enhancing Technologies...................... 267
2. Use of Existing Rights-of-Way.................... 269
3. Project Costs.................................... 273
4. Miscellaneous.................................... 275
F. Regulations Implementing NEPA........................ 279
1. Consultation With CEQ............................ 281
2. DOE Coordination................................. 285
3. NEPA Document Procedures......................... 295
4. Revisions to 18 CFR 380.16....................... 301
5. Revisions to 18 CFR 380.13 and 380.14............ 411
III. Information Collection Statement....................... 412
IV. Environmental Analysis.................................. 426
V. Regulatory Flexibility Act............................... 427
VI. Document Availability................................... 431
VII. Effective Date and Congressional Notification.......... 434
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),\2\ which provides for Federal siting of
electric transmission facilities under certain circumstances. The
Federal Energy Regulatory Commission (Commission) is amending 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).
\2\ 16 U.S.C. 824p.
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[[Page 46683]]
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 enactment of
the Energy Policy Act of 2005 (EPAct 2005) \3\ 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 authorizes 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.
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\3\ Public Law 109-58, sec. 1221, 119 Stat. 594 (Aug. 8, 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;
\4\ (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; \5\ 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.\6\
---------------------------------------------------------------------------
\4\ 16 U.S.C. 824p(b)(1)(A) (prior to the IIJA amendment in
2021). Instances in this rule citing the statute prior to the IIJA
amendment in 2021 are noted by a parenthetical for clarity.
\5\ Id. 824p(b)(1)(B).
\6\ Id. 824p(b)(1)(C) (prior to the IIJA amendment in 2021).
---------------------------------------------------------------------------
4. In addition, sections 216(b)(2) through (6) required the
Commission, before issuing a permit, 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.\7\
---------------------------------------------------------------------------
\7\ Id. 824p(b)(2)-(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 right-of-way for the construction or modification of
transmission facilities for which the Commission has issued a permit
under section 216(b).\8\ Federal and State-owned land was expressly
excluded from the purview of section 216(e) and thus could not be
acquired via eminent domain.\9\
---------------------------------------------------------------------------
\8\ Id. 824p(e)(1) (prior to the IIJA amendment in 2021).
\9\ 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 was required to establish prompt and binding
intermediate milestones and ultimate deadlines for all Federal reviews
and authorizations required for a proposed electric transmission
facility.\10\ Under section 216(h)(5)(A), DOE, as lead agency, was
required to prepare a single environmental review document, in
consultation with other affected agencies, that would be used as the
basis for all decisions for proposed projects under Federal law.
---------------------------------------------------------------------------
\10\ 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. 16 U.S.C. 824p(h)(6)(A).
---------------------------------------------------------------------------
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).\11\ 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.\12\
---------------------------------------------------------------------------
\11\ See DOE Delegation Order No. S1-DEL-FERC-2006 (previously
DOE Delegation Order No. 00-004.00A).
\12\ 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. In August 2006, DOE issued a Congestion Study pursuant to
section 216(a), which identified two critically congested areas in the
Mid-Atlantic and Southern California.\13\ Based on the results of the
Congestion Study, in October 2007, DOE formally designated two National
Corridors, the Mid-Atlantic Corridor and the Southwest Area
Corridor.\14\
---------------------------------------------------------------------------
\13\ DOE, National Electric Transmission Congestion Study, 71 FR
45047 (Aug. 8, 2006).
\14\ DOE, National Electric Transmission Congestion Report, 72
FR 56992 (Oct. 5, 2007).
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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.\15\ In addition, Order No. 689 adopted modifications to
the Commission's regulations implementing the National Environmental
Policy Act of 1969 (NEPA) \16\ in part 380 of the Commission's
regulations to ensure that the Commission is provided sufficient
information to conduct an environmental analysis of a proposed electric
transmission project.
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\15\ 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), reh'g denied, 119 FERC ]
61,154 (2007).
\16\ 42 U.S.C. 4321 et seq. See also 18 CFR pt. 380 (2023)
(Commission's regulations implementing NEPA).
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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 46684]]
application for more than one year.\17\ 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.\18\
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\17\ Order No. 689, 117 FERC ] 61,202 at PP 24-31, reh'g denied,
119 FERC ] 61,154 at PP 7-23.
\18\ Order No. 689, 117 FERC ] 61,202 at P 26, reh'g denied, 119
FERC ] 61,154 at P 11.
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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,\19\ held
that the Commission's interpretation of ``withheld approval'' was
contrary to the plain meaning of the statute, and that the Commission's
siting authority does not apply when a State has affirmatively denied a
permit application within the one-year deadline.\20\ In addition, the
Fourth Circuit vacated the Commission's transmission-related amendments
to its NEPA regulations, finding that the Commission had failed to
consult with the Council on Environmental Quality (CEQ) before adopting
the revisions.\21\
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\19\ 558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147
(2010) (Piedmont).
\20\ Id. at 313.
\21\ 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.\22\ The Ninth Circuit vacated DOE's August
2006 Congestion Study and October 2007 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.\23\
---------------------------------------------------------------------------
\22\ 631 F.3d 1072 (9th Cir. 2011).
\23\ Id. at 1096, 1106.
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13. Since the Fourth Circuit and Ninth Circuit decisions, 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.
With respect to DOE's authority, the IIJA amended section 216(a)(2) to
expand the circumstances in which DOE may designate a National
Corridor. In addition to geographic areas currently experiencing
transmission capacity constraints or congestion that adversely affects
consumers, amended section 216(a)(2) provides that 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.\24\
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\24\ DOE may consider the following factors when determining
whether to designate a National Corridor under section 216(a)(4):
(1) the economic vitality and development of the corridor, or the
end markets served by the corridor, may be constrained by lack of
adequate or reasonably priced electricity; (2) economic growth in
the corridor, or the end markets served by the corridor, may be
jeopardized by reliance on limited sources of energy and a
diversification of supply is warranted; (3) the energy independence
or energy security of the United States would be served by the
designation; (4) the designation would be in the interest of
national energy policy; (5) the designation would enhance national
defense and homeland security; (6) the designation would enhance the
ability of facilities that generate or transmit firm or intermittent
energy to connect to the electric grid; (7) the designation
maximizes existing rights-of-way and avoids and minimizes, to the
maximum extent practicable, and offsets to the extent appropriate
and practicable, sensitive environmental areas and cultural heritage
sites; and (8) the designation would result in a reduction in the
cost to purchase electric energy for consumers.
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15. With respect to the Commission's siting 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 siting
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 a siting 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.\25\ This statutory amendment resolves the
jurisdictional issue at the heart of Piedmont by explicitly giving the
Commission siting authority when a State has denied an application.\26\
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\25\ 16 U.S.C. 824p(b)(1)(C).
\26\ Id. 824p(b)(1)(C)(iii).
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16. Additionally, the IIJA amended section 216(e), which grants a
permit holder the right to acquire the necessary right-of-way by
eminent domain.\27\ As amended, section 216(e)(1) requires the
Commission to determine, as a precondition to a permit holder
exercising such eminent domain authority, that the permit holder has
made good faith efforts to engage with landowners and other
stakeholders early in the applicable permitting process.\28\
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\27\ Id. 824p(e)(1).
\28\ Id.
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E. Notice of Proposed Rulemaking
17. On December 15, 2022, the Commission issued a Notice of
Proposed Rulemaking (NOPR), which proposed revisions to its regulations
in parts 50 and 380 governing applications for permits to site electric
transmission facilities.\29\ Among other revisions, the Commission
proposed changes to address the IIJA's amendments to section 216 of the
FPA.
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\29\ Applications for Permits to Site Interstate Elec.
Transmission Facilities, 88 FR 2770 (Jan. 17, 2023), 181 FERC ]
61,205 (2022) (NOPR), errata notice, 182 FERC ] 61,020 (2023). The
Commission's errata notice for the NOPR, issued on January 17, 2023,
reflected certain stylistic revisions requested by the Federal
Register as well as minor, non-substantive editorial revisions.
---------------------------------------------------------------------------
18. First, the Commission proposed revisions to make clear that the
Commission has the authority to issue permits for the construction or
modification of electric transmission facilities in a National Corridor
if a State has denied a siting application.\30\
---------------------------------------------------------------------------
\30\ Id. P 18.
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19. Second, the Commission announced a proposed policy change that
would allow an applicant that is subject to a State siting authority to
seek to commence the Commission's pre-filing process once the relevant
State siting applications have been filed.\31\ The Commission explained
that this change, if adopted, would eliminate the Commission's prior
policy of waiting one year after the relevant State siting applications
have been filed before allowing an applicant to seek to commence the
Commission's pre-filing process. The Commission further proposed that,
one year after the commencement of the Commission's pre-filing process,
if a State has not made a determination on an application before it,
the State will have 90 days to provide comments to the Commission on
any aspect of the pre-filing process, including any information
submitted by the applicant.\32\
---------------------------------------------------------------------------
\31\ Id. PP 20-21.
\32\ Id. P 23.
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20. Third, the Commission proposed to codify an Applicant Code of
Conduct.\33\ The Commission explained that compliance with the
Applicant Code of Conduct is one way an applicant may demonstrate that
it has made good faith efforts to engage with landowners and other
stakeholders early
[[Page 46685]]
in the applicable permitting process as required by section 216(e)(1)
of the FPA as a predicate to the use of eminent domain.\34\ The
Commission also proposed that an applicant may choose an alternative
method of demonstrating that it meets the ``good faith efforts''
standard, so long as it explains how its alternative method is equal to
or better than compliance with the Applicant Code of Conduct as a means
of ensuring that the statutory standard is met.
---------------------------------------------------------------------------
\33\ Id. PP 26-27.
\34\ Id. P 28.
---------------------------------------------------------------------------
21. Fourth, the Commission proposed to add a requirement that
applicants develop and file an Environmental Justice Public Engagement
Plan as part of their Project Participation Plan, which is already
required early in the pre-filing process.\35\ The Commission explained
that an Environmental Justice Public Engagement Plan must describe the
applicant's completed outreach to environmental justice communities,
summarize comments from potentially impacted communities, describe
planned outreach, and describe how the applicant will reach out to
environmental justice communities about potential mitigation.\36\
---------------------------------------------------------------------------
\35\ Id. PP 30-31; 18 CFR 50.4(a) (requiring Project
Participation Plan).
\36\ Id. P 31.
---------------------------------------------------------------------------
22. Finally, the Commission proposed updates to the environmental
information that an application must include. In addition to a variety
of proposed updates, clarifications, and corrections to existing
resource reports, the Commission proposed to require an applicant to
provide information regarding a proposed project's impacts on Tribal
resources, environmental justice communities, and air quality and
environmental noise in three new resource reports.\37\
---------------------------------------------------------------------------
\37\ Id. PP 63-71.
---------------------------------------------------------------------------
23. Comments on the NOPR were due by April 17, 2023. In response to
a motion filed by the National Association of Regulatory Utility
Commissioners (NARUC), the Commission extended the comment deadline to
May 17, 2023.
24. In response to the NOPR, 52 comments were filed.\38\ These
comments have informed our determinations in this final rule.
---------------------------------------------------------------------------
\38\ Appendix B lists the entities that submitted comments on
the NOPR and the abbreviated names used throughout this final rule
to describe those entities.
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25. Additionally, on February 28, 2024, the Joint Federal-State
Task Force on Electric Transmission (Task Force) \39\ met to discuss
transmission siting.\40\ The discussion included topics such as how
State and Federal siting reviews should be sequenced and coordinated,
what factors the Commission should consider in its siting proceedings
under section 216(b), and how the Commission's siting process will
interface with transmission planning and cost allocation requirements.
---------------------------------------------------------------------------
\39\ Joint Fed.-State Task Force on Elec. Transmission, 175 FERC
] 61,224 (2021) (establishing Task Force pursuant to FPA section
209(b)).
\40\ Joint Fed.-State Task Force on Elec. Transmission, Notice
of Meeting and Agenda, Docket No. AD21-15-000 (Feb. 13, 2024). The
transcript of this meeting can be found in Docket No. AD21-15-000.
For context, the Commission established the Task Force in June 2021
to formally explore transmission-related topics such as generator
interconnection, grid enhancing technologies, physical security, and
regulatory gaps or challenges in oversight. The Task Force was
composed of all FERC Commissioners as well as representatives from
10 State commissions nominated by NARUC, with two originating from
each NARUC region. The Task Force convened for multiple formal
meetings annually, which were open to the public.
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II. Discussion
A. Commission Jurisdiction and State Siting Proceedings
26. As discussed above, section 216(b)(1) of the FPA, as revised by
the IIJA, provides the circumstances that trigger the Commission's
jurisdiction. As discussed further below, in this final rule, the
Commission revises Sec. 50.6 of its regulations to reflect the IIJA's
amendments to section 216(b)(1). The Commission also declines to adopt
the policy change proposed in the NOPR with respect to when the
Commission's pre-filing process may commence.
1. IIJA Amendments and Commission Jurisdiction Under FPA Section
216(b)(1)
a. NOPR Proposal
27. Section 50.6 of the Commission's regulations describes the
information that is required in each application filed pursuant to the
part 50 regulations. Section 50.6(e) provides that each application
must provide evidence demonstrating that one of the bases for the
Commission's jurisdiction 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, in the NOPR the Commission proposed 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.\41\
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\41\ NOPR, 181 FERC ] 61,205 at P 43. While the statute, as
amended by the IIJA, does not define the term ``interregional,'' the
Commission proposed 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.
Id. (citing 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)).
---------------------------------------------------------------------------
28. As discussed above, the IIJA also amended FPA section
216(b)(1)(C) 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 application
to site such transmission facilities.\42\ To reflect this amendment, in
the NOPR the Commission proposed 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.\43\
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\42\ See supra P 15.
\43\ NOPR, 181 FERC ] 61,205 at P 18.
---------------------------------------------------------------------------
b. Comments
29. Several commenters ask the Commission to clarify its
jurisdiction under section 216(b)(1) of the FPA. ACEG seeks
confirmation that the Commission's regulations will apply in instances
where a State does not have authority to approve the siting of
facilities or consider a project's expected interstate or interregional
benefits, or when an applicant does not qualify for a State permit or
siting approval because the applicant does not serve end-use customers
in that State.\44\ ACEG also urges the Commission to ``expand upon the
meaning of a State `lacking authority' to approve the proposed
facilities.'' \45\
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\44\ ACEG Comments at 4-5 (citing 16 U.S.C. 824p(b)(1)(A)-(B)).
\45\ Id. at 7.
---------------------------------------------------------------------------
30. Commenters ask the Commission to clarify whether specific
circumstances would trigger the Commission's siting authority under FPA
section 216(b)(1)(C), including when a local government entity with
siting authority, such as a county zoning board, has failed to act on,
conditionally approved, or denied a permit; \46\ when a State has not
acted within a year but no
[[Page 46686]]
National Corridor has been designated; \47\ and when a multistate
project is approved by one or more relevant States but denied by
another.\48\ To clarify when the Commission's authority under section
216(b)(1) would apply, ACEG recommends that the Commission add an
applicability section to its regulations.\49\
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\46\ See ACEG Comments at 6; SEIA Comments at 7; Rail
Electrification Council Comments at 13. Rail Electrification Council
also asks whether a State transportation authority that owns or
controls a railroad right-of-way that is integral to a proposed
transmission project would qualify as a ``State commission or other
entity'' under FPA section 216(b)(1)(C)). Rail Electrification
Council Comments at 13.
\47\ ACEG Comments at 7.
\48\ Impacted Landowners Comments at 25.
\49\ ACEG Comments at 7.
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31. Commenters also request clarification on the Commission's
authority to act under section 216(b)(1)(C)(ii) if it determines that a
State commission or other entity with siting authority has conditioned
its approval in such a manner that the proposed facilities will not
significantly reduce transmission capacity constraints or congestion in
interstate commerce or is not economically feasible. Several commenters
urge the Commission to opine on what it would consider a significant
reduction in transmission capacity constraints or congestion and how
any such threshold would be quantified.\50\ Maryland Commission
observes that the statutory phrase ``not economically feasible'' is
broad and undefined and that State conditions that simply impose an
economic burden on an applicant should not be deemed sufficient to
trigger the Commission's siting jurisdiction.\51\ Rather, Maryland
Commission states that the Commission should only consider asserting
its siting authority when confronted by State conditions that are not
supported by the record, are contrary to law, or are substantially
outweighed by the project's regional benefits and would jeopardize the
existence of the project if included.\52\
---------------------------------------------------------------------------
\50\ See Michigan Commission Comments at 11; New York Commission
Comments at 6-1; OMS Comments at 5-6.
\51\ Maryland Commission Comments at 25.
\52\ Id.
---------------------------------------------------------------------------
32. Some commenters urge the Commission either to defer to State
siting decisions or to refrain from prematurely exercising its
jurisdiction under section 216(b)(1)(C). New Jersey Board states that
the Commission should refrain from exercising its section 216 authority
and allow a State to reach its own determination, so long as the State
has acted in good faith and there is no evidence that it is attempting
to delay the process.\53\ New Jersey Board suggests that the
Commission's final rule recognize good cause for an application to
remain in the State's purview.\54\ New York Commission states that the
Commission should defer to State siting determinations that deny an
application because a project is incompatible with public health,
safety, and the environment.\55\ Noting that the ability to approve or
deny transmission siting applications is within States' general police
powers, New York Commission argues that the NOPR is too broad, does not
respect State siting authority, and is an overreach of the Commission's
jurisdiction.\56\ For these reasons, New York Commission urges the
Commission to identify a limited set of specific circumstances that
would trigger the Commission's jurisdiction if State denial of a permit
is unreasonable or inappropriate.\57\
---------------------------------------------------------------------------
\53\ New Jersey Board Comments at 6.
\54\ Id.
\55\ New York Commission Comments at 7-9.
\56\ Id. at 8-9.
\57\ Id. at 9.
---------------------------------------------------------------------------
c. Commission Determination
33. We adopt the NOPR proposal's revisions to Sec. 50.6(e), which
clarifies the evidence an applicant must provide to demonstrate that
one of the jurisdictional bases set forth in section 216(b)(1) applies
to the proposed facilities, including the addition in Sec. 50.6(e)(1)
of the phrase ``interregional benefits'' to clarify that an applicant
may provide evidence that a State does not have authority to consider
the interregional benefits expected to be achieved by the proposed
project. We decline to impose additional requirements for the
Commission to assert its jurisdiction beyond those required by the
statute. We disagree with commenters that, by revising the Commission's
regulations to reflect the IIJA's amendments to section 216(b)(1)(C),
the Commission does not respect State siting authority, exceeds its
statutory authority, or coopts or preempts State processes.
34. As stated previously in Order No. 689, mere consideration of an
application by the Commission does not equate to a jurisdictional
determination or Commission approval of the proposed project.\58\ Once
the Commission notices an application in accordance with Sec. 50.9,
anyone who questions the Commission's jurisdiction over the proposed
project, the timing of the exercise of that jurisdiction, or the merits
of the proposal can raise those matters with the Commission by filing
comments, an intervention, or a protest in the proceeding. The
Commission will make a jurisdictional determination and address
comments and protests in an order addressing the proposed project.
---------------------------------------------------------------------------
\58\ Order No. 689, 117 FERC ] 61,202 at P 32.
---------------------------------------------------------------------------
35. Section 50.6(e)(1) of the Commission's regulations tracks the
statutory language that triggers the Commission's jurisdiction under
FPA section 216(b)(1)(A). Thus, in response to ACEG's clarification
request, we confirm that the Commission's regulations would apply in
instances where a State does not have authority to approve the siting
of facilities or consider a project's expected interstate or
interregional benefits, and when an applicant does not qualify for a
State permit or siting approval because the applicant does not serve
end-use customers in that State. We decline ACEG's invitation to expand
on the meaning of a State ``lacking authority'' to approve proposed
facilities,\59\ as such findings will be State-specific and, perhaps,
project-specific and will be considered by the Commission on a case-by-
case basis.
---------------------------------------------------------------------------
\59\ ACEG Comments at 7. While ACEG does not cite a particular
statutory provision, we presume that ACEG's comment is in reference
to FPA section 216(b)(1)(A)(i), which provides that the Commission
may issue a permit if it finds that a State in which the
transmission facilities are to be located does not have authority to
approve the siting of the facilities.
---------------------------------------------------------------------------
36. We also do not find it necessary to further define the scope of
circumstances that might trigger the Commission's siting authority
under section 216(b)(1). We note that Sec. 50.6(e) of the Commission's
the regulations require an applicant to demonstrate that the relevant
statutory requirements have been met. The Commission will make such
determinations case-by-case, based upon the record in a given
proceeding. For this reason, we decline commenters' requests to clarify
the applicability of FPA section 216(b)(1) to particular, factual
circumstances that are, at this point, hypothetical.
37. We likewise decline commenters' calls to expound on when a
State approval would be conditioned in a manner that meets the
statutory threshold under FPA section 216(b)(1)(C)(ii). The Commission
addressed similar comments in Order No. 689.\60\ As the Commission
stated then, these issues cannot be resolved adequately on a generic
basis. Consistent with the Commission's prior approach, we decline to
outline potential conditions a State might impose that would invoke the
Commission's jurisdiction under FPA section 216(b)(1).
---------------------------------------------------------------------------
\60\ Order No. 689, 117 FERC ] 61,202 at P 34.
---------------------------------------------------------------------------
2. Commencement of Pre-Filing
38. 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.\61\ As the
[[Page 46687]]
Commission explained in Order No. 689, the statute 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.\62\ Thus, the Commission has recognized that the pre-filing
process can occur at the same time as State proceedings.\63\
---------------------------------------------------------------------------
\61\ Id. P 19.
\62\ Id.
\63\ Id.
---------------------------------------------------------------------------
39. Notwithstanding that the statute allows simultaneous State and
Federal proceedings, the Commission in Order No. 689 announced a policy
that, in cases where its jurisdiction rests on section
216(b)(1)(C),\64\ the pre-filing process would not commence until one
year after the relevant State applications have been filed.\65\ This
approach, the Commission explained, would provide the States one full
year to process an application without any overlapping Commission
processes, after which time an applicant might seek to commence the
Commission's pre-filing process.\66\ 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 was otherwise not in the public
interest.\67\
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\64\ 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.
\65\ Id. P 21.
\66\ Id.
\67\ Id.
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a. NOPR Proposal
40. In the NOPR, the Commission proposed to eliminate the one-year
delay before the Commission's pre-filing process may commence, thus
allowing simultaneous processing of State applications and Commission
pre-filing proceedings (referred to herein as simultaneous
processing).\68\ The Commission proposed to entertain requests to
commence pre-filing, and potentially grant such requests, at any time
after the relevant State applications have been filed. Additionally,
the Commission proposed to provide an opportunity for State input
before the Commission would announce the completion of the pre-filing
process and allow an application to be filed.\69\ Specifically, one
year after the commencement of the Commission's pre-filing process, if
a State has not made a determination on an application, the Commission
proposed to provide a 90-day window for the State to submit comments on
any aspect of the pre-filing process, including any information
submitted by the applicant. The NOPR also sought comment on the
advantages or disadvantages of the Commission entertaining requests to
commence the pre-filing process before a State application has been
filed.
---------------------------------------------------------------------------
\68\ NOPR, 181 FERC ] 61,205 at PP19-23.
\69\ Id. P 23.
---------------------------------------------------------------------------
b. Comments
41. Numerous commenters express support for the NOPR proposal.\70\
A number of commenters agree that simultaneous processing would enhance
efficiency by streamlining processes and allowing decision-making
entities to use pre-existing data to make determinations.\71\ For
instance, Los Angeles DWP believes that simultaneous processing would
enable early engagement and coordination between State and Federal
regulators, thereby increasing certainty in permit application
outcomes, reducing time and costs of environmental reviews, and better
aligning projects with State and Federal policy goals.\72\ Sabin Center
concurs that removing the one-year delay will improve efficiency and
ensure more timely decision-making by the Commission by streamlining
information collection.\73\
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\70\ Advanced Energy United Comments at 8-9; American Chemistry
Council Comments at 5; ACP Comments at 2-7; ACORE Comments at 2-3;
ACEG Comments at 5-6, 8-9; CATF Comments at 3-7; Clean Energy Buyers
Comments at 6-7; ClearPath Comments at 2; CLF Comments at 2,4; ELCON
Comments at 1,3; EDF Comments at 10-11; Los Angeles DWP Comments at
2; Michigan Commission Comments at 4; New Jersey Board Comments at
5; Niskanen Comments at 5-7; Public Interest Organizations Comments
at 10-15; Sabin Center Comments at 2-3; SEIA Comments at 2-7;
Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock
Indian Tribe, and Upper Mattaponi Indian Tribe Comments at 3.
\71\ Los Angeles DWP Comments at 2; Michigan Commission Comments
at 4; New Jersey Board Comments at 5.
\72\ Los Angeles DWP Comments at 3.
\73\ Sabin Center Comments at 3.
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42. Several commenters assert that the NOPR's simultaneous
processing proposal affords sufficient deference to States' decision-
making involving land-use and permitting decisions.\74\ ACEG states
that the Commission's proposed approach toward simultaneous processing
strikes the correct balance between promoting efficiency and respecting
States' primacy in the process.\75\
---------------------------------------------------------------------------
\74\ See, e.g., SEIA Comments at 5-7; EDF Comments at 11.
\75\ ACEG Comments at 5-6.
---------------------------------------------------------------------------
43. Some commenters agree that simultaneous processing is
consistent with the Commission's statutory authority under FPA section
216 and Congress's intent.\76\ Advanced Energy United states that the
IIJA's amendments to FPA section 216 were meant to expedite the
permitting process and that simultaneous processing would meet that
goal.\77\
---------------------------------------------------------------------------
\76\ See, e.g., ClearPath Comments at 2; see also Clean Energy
Buyers Comments at 5; Public Interest Organizations Comments at 11-
12 (interpreting Congress's silence as an implicit grant of
authority).
\77\ See, e.g., ACP Comments at 8; see also Advanced Energy
United Comments at 7.
---------------------------------------------------------------------------
44. Some commenters contend that the NOPR's simultaneous processing
proposal would enhance stakeholder participation and communication in
both State and Federal transmission siting proceedings.\78\ ACP states
that conducting concurrent review allows the Commission to hear from
stakeholders early in the Federal siting process--and potentially in
tandem with States.\79\ Niskanen also supports simultaneous processing
because it believes that the Commission's implementation of the
statute's ``good faith'' standard for engaging with landowners and
other stakeholders from the beginning of the process will standardize
practices across the States and decrease the ability of applicants to
exhibit bad faith when dealing with only the State commission.\80\
---------------------------------------------------------------------------
\78\ Los Angeles DWP Comments at 2
\79\ ACP Comments at 5.
\80\ Niskanen Comments at 7.
---------------------------------------------------------------------------
45. Several commenters that otherwise support the NOPR's
simultaneous processing proposal explicitly oppose the Commission's
pre-filing process commencing prior to the commencement of the State's
permitting process or a State application being filed.\81\ Several
commenters that support simultaneous processing also urge the
Commission to take steps to limit stakeholder confusion, for instance,
by requiring applicants to specify when they will file their
applications with States.\82\ The Chickahominy Indian Tribe, Nansemond
Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian
Tribe are supportive of simultaneous processing, but warn that the
Commission must ensure meaningful stakeholder participation during the
pre-filing process.\83\
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\81\ ACORE Comments at 3; Yurok Tribe Comments at 24; Clean
Energy Buyers Comments at 7.
\82\ See California Commission Comments at 6; EDF Comments at
11.
\83\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 3.
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46. Many commenters oppose the NOPR proposal to allow the
Commission's pre-filing process to commence at any time after the
relevant State siting applications have been filed
[[Page 46688]]
but before a State decision is made.\84\ Several commenters urge the
Commission to retain the existing policy adopted in Order No. 689,
where the pre-filing process could not commence until one year after
the relevant State applications have been filed.\85\ Some commenters
argue that the Commission's pre-filing process should not begin until
after the relevant State authority determines that a State application
is complete \86\ or after the relevant State authority's finishes its
adjudication.\87\ Georgia Commission is concerned that simultaneous
processing would contradict current State statutes and regulations
guiding transmission planning, which in Georgia occurs at least every
three years.\88\
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\84\ Alabama Commission Comments at 1-3; Georgia Commission
Comments at 1-2; Impacted Landowners Comments at 2-5; Joint Consumer
Advocates Comments at 6-11; Kansas Commission Comments at 9-12;
Kentucky Commission Comments at 2-4; Louisiana Commission Comments
at 5-9; Maryland Commission Comments at 2, 16-21; NESCOE Comments at
4, 6-7; New York Commission Comments at 9-10; North Carolina
Commission and Staff Comments at 8, 10-11; North Dakota Commission
Comments at 5-6; Pennsylvania Consumer Advocate Comments at 5-7;
Pennsylvania Commission Comments at 2, 4-6; Texas Commission
Comments at 5-6, 10-11; Southern Comments at 3-8; Farm Bureaus
Comments at 3, 6; Chamber of Commerce Comments at 2, 5.
\85\ See, e.g., North Dakota Commission Comments at 6; NESCOE
Comments at 4-6; Texas Commission Comments at 6.
\86\ North Dakota Commission Comments at 5; Joint Consumer
Advocates Comments at 6; Maryland Commission Comments at 21 (arguing
that the one-year should be tolled if material amendments are filed
at the State level).
\87\ New York Commission Comments at 9; Maryland Commission
Comments at 2, 18-19; Pennsylvania Commission Comments at 7.
\88\ Georgia Commission Comments at 2.
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47. Several commenters argue that simultaneous processing would not
adequately respect the States' primacy and would impinge on State
jurisdiction.\89\ Joint Consumer Advocates caution that the Commission,
in implementing its section 216 authority, must ensure State processes
are not coopted or preempted, and they assert that the Federal process
should be a backstop, rather than an alternative, to the State
process.\90\ Georgia and Texas Commissions express concerns that the
NOPR's proposed simultaneous processing will encroach on their existing
permitting schemes.\91\ Some commenters argue that simultaneous
processing would undermine State proceedings \92\ and the public's
confidence in State siting authorities.\93\ Pennsylvania Commission and
North Carolina Commission argue that Congress meant to balance the
Commission's process with State primacy and that the NOPR's
simultaneous processing proposal is inconsistent with that goal.\94\
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\89\ See, e.g., Maryland Commission Comments at 2, 19; North
Dakota Commission Comments at 2; Louisiana Commission Comments at 5.
\90\ Joint Consumer Advocates Comments at 5.
\91\ Georgia Commission Comments at 2,4; Texas Commission
Comments at 6-9.
\92\ Louisiana Commission Comments at 5.
\93\ NESCOE Comments at 6-7.
\94\ Pennsylvania Commission Comments at 2; North Carolina
Commission and Staff Comments at 8.
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48. Several commenters argue that simultaneous processing invites
potentially duplicative, wasteful procedures, especially in instances
where the State ultimately approves the application.\95\ Kentucky PSC
contends that the one-year delay actually helps the Commission, as some
projects will be approved by States in that time, saving the Commission
from wasting time and resources on commencing the NEPA process.\96\
Chamber of Commerce asserts that simultaneous processing, by virtue of
its design, guarantees that one of the processes and the stakeholder
efforts will amount to a void and wasted effort.\97\ Some commenters
express concerns that applicants may seek to recover from ratepayers
costs incurred for commencing the Commission's pre-filing process in
instances when the State siting commission approves a proposed
transmission project.\98\
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\95\ See New York Commission Comments at 9; Alabama Commission
Comments at 2 n.3; North Dakota Commission Comments at 6; North
Carolina Commission and Staff Comments at 8.
\96\ Kentucky Commission Comments at 3-4.
\97\ Chamber of Commerce Comments at 5; Impacted Landowners
Comments at 3.
\98\ Texas Commission Comments at 10-11; Impacted Landowners
Comments at 3.
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49. Commenters opposed to simultaneous processing argue that the
NOPR proposal would disproportionately burden State agencies charged
with processing transmission siting applications. Some commenters
assert that simultaneous proceedings would make it challenging for
State oversight agencies to concurrently perform their quasi-judicial
role and act as intervenors in Commission proceedings.\99\ Other
commenters contend that overlapping hearings and comment deadlines
\100\ would strain State resources or divide the attention of State
experts.\101\
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\99\ See Kentucky Commission Comments at 2; Alabama Commission
Comments at 1; Pennsylvania Commission Comments at 6.
\100\ See NESCOE Comments at 5-6.
\101\ See Kansas Commission Comments at 11-12; New York
Commission Comments at 9; Kentucky Commission Comments at 2; Alabama
Commission Comments at 1; Pennsylvania Commission Comments at 6.
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50. Multiple commenters assert that the NOPR's simultaneous
processing proposal would have an adverse effect on stakeholder and
applicant participation in State proceedings.\102\ In particular, some
commenters express concerns that multiple hearings and comment
deadlines resulting from parallel State and Federal proceedings would
confuse stakeholders by requiring interested participants and affected
landowners to learn and comply with two sets of procedural rules and
substantive permitting requirements.\103\ Some commenters argued that
the resulting confusion would reduce stakeholder participation.\104\
---------------------------------------------------------------------------
\102\ NESCOE comments at 5-6; Kansas Commission Comments at 11-
12.
\103\ See NESCOE Comments at 6; New York Commission Comments at
9; Kansas Commission Comments at 11-12.
\104\ See NESCOE Comments at 6.
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51. Several of the commenters that oppose the simultaneous
processing proposal also oppose the proposed 90-day comment period for
States as an inadequate replacement for the one-year delay.\105\
Kentucky and Louisiana Commissions argue that the 90-day comment period
for States will put them in the position of choosing whether to remain
silent in the Commission pre-filing process or to comment in favor of
or against a proposed project, essentially ``prejudging'' the project
at the Federal level while trying to maintain impartiality in the
ongoing State proceeding.\106\ North Carolina Commission and Staff
oppose simultaneous processing but support the 90-day comment period in
the event that the Commission adopts the proposal, because it would
afford the States more time to participate in the Commission's pre-
filing process.\107\ Although Pennsylvania Commission also opposes
simultaneous Federal and State proceedings, it contends that the 90-day
comment period is necessary even in the absence of simultaneous
processing.\108\
---------------------------------------------------------------------------
\105\ See, e.g., Alabama Commission Comments at 2 n.6; Maryland
Commission Comments at 19; Kentucky Commission Comments at 2-3;
Louisiana Commission Comments at 5; Southern Comments at 8.
\106\ Kentucky Commission Comments at 2-3; Louisiana Commission
Comments at 5.
\107\ North Carolina Commission and Staff Comments at 11-12.
\108\ Pennsylvania Commission Comments at 6-7.
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52. Sabin Center and ClearPath both suggest that the 90-day comment
period start one year after the start of the State review, not one year
after the Commission's pre-filing process has begun.\109\ ClearPath
suggests that there be no 90-day comment period if a State
[[Page 46689]]
has already approved or denied an application, as the State will have
already stated its position on the project.\110\ Some entities seek
clarity as to whether the 90-day window explicitly applies to every
circumstance triggering the Commission's jurisdiction under section
216.\111\ ACP points out that the 90-day comment period would serve as
a second opportunity for State input, as States will also have the
opportunity to provide input during DOE's National Corridor designation
process.\112\
---------------------------------------------------------------------------
\109\ Sabin Center comments at 3; ClearPath Comments at 2.
\110\ ClearPath Comments at 2.
\111\ Joint Consumer Advocates Comments at 6.
\112\ ACP Comments at 6.
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c. Commission Determination
53. After further consideration and review of the comments, we
decline to adopt the NOPR proposal to allow simultaneous processing. We
acknowledge comments that argue that simultaneous processing could
result in efficiencies, but given the concerns raised by the States, we
find that not allowing simultaneous processing strikes the appropriate
balance at this time between an efficient process and respect for
States' primacy in siting transmission infrastructure. We continue to
believe that the statute allows parallel State and Commission
processes.\113\ Nevertheless, we make this policy determination to
continue the Commission's practice introduced in Order No. 689, based
on our review of the record and, in particular, the feedback received
from States in their filed comments and at the February 28, 2024
meeting of the Joint Federal-State Task Force on Electric
Transmission.\114\ Additionally, given this determination, we are not
adopting the NOPR proposal to provide a 90-day period for the State to
comment on the pre-filing process.
---------------------------------------------------------------------------
\113\ Order No. 689, 117 FERC ] 61,202 at P 19.
\114\ See supra note 40, Tr. 79-90.
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54. We confirm that, in cases where the Commission's jurisdiction
rests on FPA section 216(b)(1)(C)(i),\115\ the applicant should not
begin the pre-filing process until one year after the relevant State
applications have been filed. This will give the States one full year
to process an application without any overlapping Commission processes.
Once that year is complete, an applicant may begin the Commission's
pre-filing procedures pursuant to Sec. 50.5. We believe that
continuing this approach most adequately addresses State concerns.
However, as the Commission previously stated in Order No. 689, if we
determine in the future 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, we may reexamine this issue.
---------------------------------------------------------------------------
\115\ 16 U.S.C. 824p(b)(1)(C)(i).
---------------------------------------------------------------------------
B. Eminent Domain Authority and Applicant Efforts To Engage With
Landowners and Other Stakeholders
55. Section 50.4 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
notifications early in both the pre-filing and application review
processes. These notifications will provide a range of information
about 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 the rights an affected landowner has
at the Commission and in proceedings under the eminent domain rules of
the relevant State.
1. NOPR Proposal
56. As described above, the IIJA amended FPA section 216(e)(1) to
require the Commission to determine, as a precondition to a permit
holder receiving eminent domain authority, that the permit holder has
made good faith efforts to engage with landowners and other
stakeholders early in the permitting process.\116\ Therefore, in the
NOPR, the Commission proposed to supplement the existing landowner and
stakeholder participation provisions in part 50 of its
regulations.\117\
---------------------------------------------------------------------------
\116\ 16 U.S.C. 824p(e)(1).
\117\ NOPR, 181 FERC ] 61,205 at PP 24-29.
---------------------------------------------------------------------------
57. To address the IIJA's amendment to section 216(e)(1), in the
NOPR the Commission proposed to supplement the regulatory requirements
in Sec. 50.4 by adding a new Sec. 50.12.\118\ 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 includes recordkeeping (e.g., maintaining an affected landowner
discussion log) and information-sharing requirements for engagement
with affected landowners, as well as more general prohibitions against
misconduct in such engagement.
---------------------------------------------------------------------------
\118\ Id. PP 26-29.
---------------------------------------------------------------------------
58. As the Commission proposed in the NOPR, under 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.\119\ Under 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.
---------------------------------------------------------------------------
\119\ Id. P 27.
---------------------------------------------------------------------------
59. In the NOPR, the Commission emphasized that 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).\120\ Nevertheless, the Commission stated
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. Thus, the Commission proposed 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 statute's good
faith efforts standard and explain for each deviation from the
Applicant Code of Conduct why the chosen alternative is an equal or
better means to ensure that the good faith efforts standard is met.
---------------------------------------------------------------------------
\120\ Id. P 28.
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2. Comments
60. Public Interest Organizations and the Yurok Tribe generally
support the Applicant Code of Conduct.\121\ In addition, numerous
commenters urge the Commission to make compliance with the Applicant
Code of Conduct mandatory for applicants to maximize transparency and
meaningfully assist landowners and stakeholders.\122\ Public Interest
Organizations specifically recommend that the Commission elevate the
Applicant Code of Conduct as the sole means of demonstrating compliance
with the good faith efforts standard in section 216(e)(1), asserting
that allowing alternative methods could
[[Page 46690]]
result in ambiguity for the applicant and other stakeholders.\123\
---------------------------------------------------------------------------
\121\ Public Interest Organizations Comments at 16-17; Yurok
Tribe Comments at 30.
\122\ EDF Comments at 13: Farm Bureaus Comments at 11; Public
Interest Organizations Comments at 18; NESCOE Comments at 13;
Pennsylvania Consumer Advocate Comments at 7.
\123\ Public Interest Organizations Comments at 42-44.
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61. Impacted Landowners and EDF urge the Commission to create clear
standards to guide its good faith efforts determination, including for
alternative methods of demonstrating that an applicant meets the good
faith efforts standard.\124\
---------------------------------------------------------------------------
\124\ Impacted Landowners Reply Comments at 6; EDF Comments at
13.
---------------------------------------------------------------------------
62. In opposition, American Chemistry Council and ClearPath state
that the Commission's proposed good faith efforts requirements are
overly prescriptive, intrusive, outside the scope of the Commission's
statutory mandates, and will turn efforts to engage affected landowners
into a box-checking exercise instead of meaningful engagement.\125\
American Chemistry Council and ClearPath dispute the Commission's
assertion that compliance with the Applicant Code of Conduct is
voluntary given that applicants pursuing alternative methods of meeting
the good faith efforts requirement must explain how their methods are
equal to or better than compliance with the Applicant Code of
Conduct.\126\ ClearPath also contends that the Applicant Code of
Conduct contains redundancies, including the requirement in proposed
Sec. 50.12 that applicants provide landowners, upon first contact,
with documentation about the project, which, it says, is duplicative of
the notification requirements in Sec. 50.4(c).\127\ Furthermore,
ClearPath contends that the NOPR proposal would create inconsistent
requirements for transmission siting applications under the FPA and
natural gas pipeline applications under the Natural Gas Act.\128\
---------------------------------------------------------------------------
\125\ American Chemistry Council Comments at 6; ClearPath
Comments at 3.
\126\ American Chemistry Council Comments at 6; ClearPath
Comments at 3. For example, ClearPath notes that the regulations
require monthly status reports and questions whether any less
frequent reporting would be deemed ``equal or better'' than monthly
reporting.
\127\ ClearPath Comments at 3.
\128\ Id.
---------------------------------------------------------------------------
63. Impacted Landowners state that merely having an Applicant Code
of Conduct will not result in actual good faith efforts by an applicant
to engage with landowners and generally that codes of conduct do not
work. They assert that there has historically been no policing or
punishment of violations associated with codes of conduct.\129\
Further, Impacted Landowners assert that although the proposed
Applicant Code of Conduct admonishes applicants to avoid coercive
tactics while they engage in negotiations with landowners, there is no
way to bring up the possible exercise of eminent domain without it
being interpreted by the landowner as coercive.\130\
---------------------------------------------------------------------------
\129\ Impacted Landowners Comments at 7-10.
\130\ Id. at 8.
---------------------------------------------------------------------------
64. California Commission states that the proposed regulations
under Sec. 50.12(b)(2) should be revised to require a demonstration
and documentation of compliance with the Applicant Code of Conduct
rather than only an ``affirmation'' to ensure applicant
compliance.\131\
---------------------------------------------------------------------------
\131\ California Commission Comments at 7.
---------------------------------------------------------------------------
65. Several commenters seek clarification regarding the timing and
duration of the Commission's good faith efforts determination required
by FPA section 216(e)(1). For instance, Impacted Landowners ask the
Commission to clarify the point at which the ``applicable permitting
process'' begins, during which applicants must make good faith efforts
to engage with landowners and other stakeholders. They also ask when
the Commission would determine if good faith efforts have been made and
whether applicants will be expected or required to continue to make
good faith efforts to engage with landowners and other stakeholders
once a permit is issued, asserting that after permit issuance,
applicants will likely increase land acquisition efforts and
negotiations can become more contentious.\132\ Several commenters
suggest that applicants must make good faith efforts to engage with
landowners and other stakeholders throughout the permitting process,
including prior to the start of the Commission's pre-filing
process.\133\ EEI notes that in instances of late project routing
changes it may be difficult to comply with the statutory good faith
efforts requirement.\134\
---------------------------------------------------------------------------
\132\ Impacted Landowners Reply Comments at 5-6.
\133\ Public Interest Organizations Comments at 17 and 21;
Niskanen Comments at 7.
\134\ EEI Comments at 7.
---------------------------------------------------------------------------
66. Similarly, several commenters raise timing concerns with using
an alternative method, allowed in proposed Sec. 50.12(c), to
demonstrate that the good faith efforts standard has been met. Public
Interest Organizations assert that the proposed regulations are
ambiguous with respect to how or when the Commission would determine
that an applicant's alternative method is equal to or better than the
Commission's Applicant Code of Conduct.\135\ EEI asks the Commission to
avoid any disruption or delay when making that determination.\136\
---------------------------------------------------------------------------
\135\ Public Interest Organizations Comments at 42-44.
\136\ EEI Comments at 7.
---------------------------------------------------------------------------
67. Several commenters offer suggestions with respect to the scope
of an applicant's good faith efforts under FPA section 216(e)(1).
Public Interest Organizations and SEIA claim that proposed Sec. 50.12,
which applies to communications with affected landowners, fails to take
into account section 216(e)(1)'s statutory directive to make good faith
efforts to engage ``landowners and other stakeholders.'' \137\ Public
Interest Organizations and SEIA recommend that the regulations in Sec.
50.12 be amended to include conduct with ``other stakeholders,'' \138\
noting that this change would extend the duty of good faith to
environmental justice communities.\139\ The Yurok Tribe, Chickahominy
Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe state that Tribes should be included as a
separate stakeholder in the regulations with whom applicants must
demonstrate good faith efforts to engage, including in the Applicant
Code of Conduct.\140\
---------------------------------------------------------------------------
\137\ Public Interest Organizations Comments at 3 and 17.
\138\ Id. at 18-21.
\139\ Id. at 78-79; SEIA Comments at 10.
\140\ Yurok Tribe Comments at 30; Chickahominy Indian Tribe,
Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe Comments at 2.
---------------------------------------------------------------------------
68. Impacted Landowners argue that the proposed Applicant Code of
Conduct only applies to applicants and would not extend to contracted
land agents who negotiate with landowners.\141\ Niskanen suggests that
the Commission add explicit language to the Applicant Code of Conduct
to capture applicability to land agents acting on behalf of
applicants.\142\
---------------------------------------------------------------------------
\141\ Impacted Landowners Comments at 9-10.
\142\ Niskanen Comments at 18-20.
---------------------------------------------------------------------------
69. Pennsylvania Consumer Advocate, asserting that improper land
agent tactics are the most common cause of complaints during
transmission line siting cases, urges Commission staff to oversee
interactions between applicants and affected landowners.\143\ Several
commenters suggest that the Commission establish compliance procedures
and communication channels for landowners and stakeholders to provide
feedback to the Commission concerning applicants' efforts to engage in
good faith and violations of the Applicant Code of
[[Page 46691]]
Conduct.\144\ Public Interest Organizations and Niskanen recommend that
the Commission assign its Office of Public Participation to receive
from landowners and stakeholders reports of abuse or fraudulent
behavior exhibited by the applicant or any representative of the
applicant.\145\ Additionally, numerous commenters state that the
Commission should add language to the Landowner Bill of Rights
instructing affected landowners to promptly report to the Commission
any instances of abuse or fraudulent behavior exhibited by the
applicant or any representative of the applicant.\146\ Impacted
Landowners recommend that the Commission independently investigate
complaints of violations of the Applicant Code of Conduct, and that
Commission-verified violations should be punished to prevent
recurrence.\147\
---------------------------------------------------------------------------
\143\ Pennsylvania Consumer Advocate Comments at 8.
\144\ Impacted Landowners Comments at 11; Impacted Landowners
Reply Comments at 5-6; Public Interest Organizations Comments at 17;
Pennsylvania Consumer Advocate Comments at 7-8.
\145\ Public Interest Organizations Comments at 40; Niskanen
Comments at 15-17.
\146\ Public Interest Organizations Comments at 40; Niskanen
Comments at 15-17.
\147\ Impacted Landowners Comments at 11.
---------------------------------------------------------------------------
70. Similarly, several commenters recommend that the Commission
require applicants to include the discussion logs required under
proposed Sec. 50.12(a)(1) as part of the monthly status reports
applicants must submit under Sec. 50.5(e)(11),\148\ or, alternatively,
provide copies of discussion logs to landowners, stakeholders, and
Tribes for the purpose of verifying their accuracy.\149\ The Yurok
Tribe and Public Interest Organizations ask that the Applicant Code of
Conduct include a requirement for applicants to note within their
discussion logs who within a Tribe was contacted, a description of the
contacted Tribal representative's role, and whether another Tribal
representative was suggested to be contacted.\150\ The Yurok Tribe
states that the applicant must be held accountable to follow up on
alternative contact recommendations. The Yurok Tribe also suggests that
the discussion logs include the date of any questions posted by a
Tribe, the contents and date of any applicant responses to questions,
any follow-up after the initial answer, and the method of contact for
each interaction (e.g., phone, email, in-person).\151\
---------------------------------------------------------------------------
\148\ Due to a clarifying edit, in this final rule the
Commission has split and redesignated what appeared in the NOPR as
Sec. 50.5(e)(7) and (8) into Sec. 50.5(e)(7), (8), and (9). With
this change, the NOPR's redesignated Sec. 50.5(e)(9) and (10) are
further redesignated to Sec. 50.5(e)(10) and (11). Consequently,
this final rule references these regulations according to the final
redesignated numbering.
\149\ Public Interest Organizations Comments at 22-23; NESCOE
Comments at 14, Niskanen Comments at 20, Yurok Tribe Comments at 32
and 34.
\150\ Yurok Tribe Comments at 31-32; Public Interest
Organizations Comments at 70-71.
\151\ Yurok Tribe Comments at 32.
---------------------------------------------------------------------------
71. Specific to the Applicant Code of Conduct, Public Interest
Organizations note that proposed Sec. 50.12(a)(2) requires the
applicant to provide certain information to each stakeholder at first
contact. However, Public Interest Organizations state that the
regulations do not include a deadline for the applicant to provide
these documents. Public Interest Organizations recommend that the
Commission set a reasonable deadline for providing this information,
such as sending the document within three business days of first
contact.\152\
---------------------------------------------------------------------------
\152\ Public Interest Organizations Comments at 23.
---------------------------------------------------------------------------
72. Several commenters provide additional recommendations for the
Applicant Code of Conduct, including requiring that company
representatives: provide landowners with a copy of the Applicant Code
of Conduct at first notification; \153\ present photo identification;
\154\ consent to being recorded or photographed,\155\ and explain their
position and decision-making authority along with providing contact
information for decision makers.\156\ Impacted Landowners ask that the
Applicant Code of Conduct require applicants to notify landowners of
their right to have counsel of their choice review the easement
agreement before signing and that use of eminent domain to acquire a
right-of-way requires payment of just compensation determined by the
appropriate court.\157\ Other commenters suggest that the Commission
require via the Applicant Code of Conduct that applicants must obtain
consent from Tribes to enter any form of Tribal land or any area known
to have cultural resources and that all individuals who conduct
outreach to Tribes have undergone training, including affected Tribes'
own programming.\158\ ACEG recommends that the Applicant Code of
Conduct require applicants to adequately protect landowners' personally
identifiable information.\159\ Finally, EDF suggests that the Applicant
Code of Conduct include provisions for applicants to determine the
preferred language of all affected landowners and communicate with
affected landowners in their preferred language.\160\
---------------------------------------------------------------------------
\153\ Impacted Landowners Comments at 11.
\154\ Id.
\155\ Id.
\156\ Yurok Tribe Comments at 31; Public Interest Organizations
Comments at 70-71.
\157\ Impacted Landowners Comments at 11.
\158\ Yurok Tribe Comments at 33; Public Interest Organizations
Comments at 70.
\159\ ACEG Comments at 18.
\160\ EDF Comments at 13.
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3. Commission Determination
73. To incorporate the IIJA's amendment to section 216(e)(1)
requiring a determination by the Commission as to whether the permit
holder has made good faith efforts to engage with landowners and other
stakeholders, we adopt the NOPR proposal, with modifications. We find
that establishing standards via the Applicant Code of Conduct provides
clarity on expectations for applicants and will support the Commission
in making the required good faith efforts determination. As discussed
further below, in response to commenter feedback, we modify the NOPR
proposal to: clarify the timing and duration of certain Applicant Code
of Conduct provisions, ensure applicant representatives present photo
identification and provide the applicant's contact information during
discussions with affected landowners, require that applicants explain
to affected landowners that they may request copies of discussion log
entries that pertain to their property, and require applicants to
provide affected landowners copies of their discussion log entries upon
request.
74. We both decline commenters' requests to make the Applicant Code
of Conduct mandatory and disagree with commenters who argue that, by
setting minimum requirements, we have de facto made the Applicant Code
of Conduct mandatory. Given that the IIJA requires, as a prerequisite
to the permit holder using eminent domain, that the Commission
determine whether a permit holder has made good faith efforts to engage
with landowners and other stakeholders early in the applicable
permitting process, we believe it is important for the Commission to
identify a means for potential applicants to obtain that determination.
At the same time, while the Applicant Code of Conduct reflects the
principles, we find to be broadly relevant to determining that an
applicant has made good faith efforts to engage with landowners, we
will not declare that the specific steps outlined in the Applicant Code
of Conduct are the only way those principles can be achieved and
demonstrated. Therefore, we will allow applicants to propose for the
Commission's consideration alternative methods to demonstrate that the
statute's good faith efforts standard
[[Page 46692]]
will be met. We disagree that this framework would lead to ambiguity as
commenters suggest. The scope and complexity of projects that the
Commission may receive could significantly vary and we find it
appropriate at this point not to forestall alternative options to
demonstrate compliance with the good faith efforts standard. We find
that the Applicant Code of Conduct and option to comply with an
alternative method provides applicants sufficiently clear standards to
allow a demonstration of good faith efforts while providing for
appropriate flexibility, which may be necessary based on project-
specific circumstances.
75. Establishing an Applicant Code of Conduct does not exceed the
Commission's authority under FPA section 216. As described above,
Congress has directed the Commission to determine, as a prerequisite to
the use of eminent domain under FPA section 216(e)(1), that a permit
holder has made good faith efforts to engage with landowners and other
stakeholders. It is consistent with that directive to set forth in the
Commission's regulations a set of actions which we find, if followed,
will result in the appropriate engagement expected of applicants in
their interactions with landowners and provides guidance as to the
standards the Commission will apply in determining whether an applicant
has met the statutory requirement.
76. Regarding ClearPath's concerns that the Applicant Code of
Conduct contains redundancies, we note that the notification
requirements under Sec. 50.12 are structured to specifically address
an applicant's demonstration of its good faith efforts to engage
affected landowners. The Commission's existing notification
requirements in Sec. 50.4 facilitate participation from all landowners
and other stakeholders during the Commission's proceeding. Although
affected landowners may receive multiple notifications from applicants
as a result of these requirements, the Commission does not view this as
overly burdensome for applicants.
77. We also are not persuaded by ClearPath's argument that the
Commission can only adopt reforms to stakeholder participation
requirements if those revisions are applied equally to other Commission
infrastructure processes (i.e., to natural gas and hydropower
proceedings).\161\ Section 216(e)(1) of the FPA requires the Commission
to determine, as a prerequisite to 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. There is
no such requirement under the NGA or Part I of the FPA.
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\161\ The Commission is not obligated to implement changes in a
single, sweeping step, and is not barred from implementing process
improvements to only one program at a time. See, e.g.,
Transportation Div. of the Int'l Ass'n of Sheet Metal, Air, Rail &
Transportation Workers v. Fed. R.R. Admin., 10 F.4th 869, 875 (D.C.
Cir. 2021) (agencies have great discretion to take one step at a
time and do not need to act in ``one fell regulatory swoop'')
(internal citation and quotation omitted).
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78. In response to questions about the timing of the Commission's
good faith efforts determination, we clarify that, regardless of
whether the applicant follows the Applicant Code of Conduct or an
alternative method, we expect to issue such determinations concurrently
with an order on the merits of a permit application under section
216(b), based on the record in the proceeding.
79. Regarding Impacted Landowners' question as to when the
``applicable permitting process'' and good faith efforts requirements
begin and whether applicants must continue to make good faith efforts
to engage after permit issuance, we clarify that a good faith efforts
demonstration begins with the commencement of the Commission's pre-
filing process and continues through the issuance of the Commission's
order on the merits of the application. We adopt a revision in the
Applicant Code of Conduct to relocate, from Sec. 50.12(a)(1) to the
introductory text in paragraph (a) of this section, the phrase ``for
the duration of the pre-filing and application review processes'' to
make clear that this duration applies to all Applicant Code of Conduct
requirements. We also expect applicants to act in good faith in their
dealings with landowners and other stakeholders during any post-
authorization engagement related to the exercise of eminent domain,
construction of the project, and any post-construction mitigation or
other ongoing activities involving landowners and other stakeholders.
80. We also disagree with assertions that merely adopting an
Applicant Code of Conduct would not result in actual good faith efforts
or could produce contradictory results. Some of these assertions appear
premised on the notion that any engagement in which an applicant
retains the potential to use eminent domain is not in good faith.
However, we believe that an applicant demonstrates good faith efforts
by the course of its engagement and efforts to involve landowners and
other stakeholders in the process, rather than by whether eminent
domain is ultimately necessary or parties are satisfied with the
outcome of that engagement. We also disagree with claims that the
Applicant Code of Conduct will reduce engagement to a ``box checking
exercise.'' \162\ We believe compliance with the information-sharing
and recordkeeping provisions in the Applicant Code of Conduct will
encourage meaningful engagement with landowners and help ensure that
engagement meets the good faith efforts standard.
---------------------------------------------------------------------------
\162\ See, e.g., American Chemistry Council Comments at 6;
ClearPath Comments at 3.
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81. We decline to revise proposed Sec. 50.12(b)(2) to require
further demonstration beyond affirmation of compliance with the
Applicant Code of Conduct. The Applicant Code of Conduct requires
thorough documentation of an applicant's discussions with affected
landowners, and each month an applicant must either affirm that it has
complied with the Applicant Code of Conduct or provide a detailed
explanation of any instances of non-compliance and any remedial actions
taken or planned. As noted above, an applicant must demonstrate good
faith efforts for the duration of the Commission's pre-filing and
application review processes. In this final rule, we add Sec.
50.12(b)(4) to clarify that an applicant must continue to file monthly
status reports describing its efforts to comply with the Applicant Code
of Conduct during the application review process.
82. Regarding alternatives to the Applicant Code of Conduct, we
clarify that an applicant that uses an alternative method to
demonstrate good faith efforts to engage with landowners will bear the
burden to explain how its alternative method is equal to or better than
compliance with the Applicant Code of Conduct. The Commission would not
typically reach a determination that this standard is met until it
evaluates the permit application and determines whether to issue a
permit. Thus, an applicant who seeks to demonstrate that an alternative
method is equal to or better than compliance with the Applicant Code of
Conduct will face uncertainty regarding the acceptability of its method
until the Commission determines it meets the regulatory standard. We
have set forth an Applicant Code of Conduct that reflects principles we
find to be broadly relevant to determining whether an applicant has
made good faith efforts to engage with landowners and establishes a set
of practices we believe are sufficient to achieve those principles.
Applicants should propose deviations
[[Page 46693]]
only where they are confident that their approach is equal to or better
than the Applicant Code of Conduct as a means of demonstrating that
they have made good faith efforts to engage with landowners as required
by the statute.
83. In response to EEI's comment regarding the potential for late-
stage route changes, we note that applicants are required to file
monthly reports during the pre-filing process detailing the efforts to
comply with the Applicant Code of Conduct. To the extent that project
route changes are developed during the pre-filing process, we expect
that engagement with landowners and other affected stakeholders who
would be newly impacted by the contemplated route change will be
documented in monthly reports. In the instance of route changes that
occur after an application is filed, Sec. 50.4(c)(3) requires
notifications to newly affected landowners when they are identified. We
expect applicants to continue to make good faith efforts to engage
affected landowners, including those impacted by post-application and
post-authorization route changes, throughout the application review
process and through construction and restoration and mitigation
efforts.
84. In response to comments regarding the scope of proposed Sec.
50.12, we agree with commenters that FPA section 216(e)(1) requires an
applicant to demonstrate good faith efforts to engage with ``landowners
and other stakeholders.'' We decline to alter the scope of the
Applicant Code of Conduct, which specifically provides an applicant a
means to demonstrate compliance with the good faith efforts standard in
communications with affected landowners. The Applicant Code of Conduct
specifies recordkeeping and information-sharing requirements that are
tailored to encourage productive and more sustained engagement with
affected landowners regarding the use or acquisition of their property,
which may not necessarily apply to engagement with other stakeholders.
With regard to good faith efforts to engage with other stakeholders,
applicants bear the burden to demonstrate good faith efforts at
engagement and should strive to incorporate best practices used in
engagement with affected landowners in engagement with other
stakeholders, as applicable. We also clarify that the Commission will
assess case-by-case an applicant's good faith efforts to engage with
other stakeholders, based on the record in a proceeding. We will
consider, among other things, an applicant's efforts to engage
stakeholders as described in the Project Participation Plan (including
engagement with environmental justice communities and Tribes), monthly
status reports describing stakeholder communications during pre-filing,
and compliance with Commission regulations for project notifications.
85. In response to the requests of several Tribes, we clarify that
Tribes meeting the definition of Indian Tribe in Sec. 50.1 qualify as
stakeholders for which applicants would be required to make good faith
efforts to engage. We conclude that the good faith efforts requirements
as discussed herein will ensure appropriate engagement with Tribes.
Accordingly, the Commission would consider evidence of engagement with
Tribes in its assessment of whether the good faith efforts standard has
been met.
86. As to applicability of the Applicant Code of Conduct to land
agents, we note that proposed Sec. 50.12(a)(12), adopted in this final
rule, explicitly applies the Applicant Code of Conduct to any
representative acting on the applicant's behalf, which includes land
agents.
87. We decline to adopt additional mechanisms to monitor compliance
with the good faith efforts standard. We do not believe that it is an
appropriate or practical use of Commission or stakeholder resources to
adjudicate good faith efforts issues during the course of a proceeding.
We encourage affected landowners and other stakeholders to participate
in the pre-filing process and the permit proceeding once an application
is filed. Landowners and other stakeholders may file comments in the
project-specific proceeding and may contact the Commission's landowner
helpline to identify perceived violations of the Applicant Code of
Conduct for consideration and to request investigation by the
Commission. Any comments submitted in the record may inform the
Commission's deliberation regarding the good faith efforts standard and
issuance of the permit. We also note that the Office of Public
Participation may be able to provide technical assistance to landowners
and other stakeholders regarding how to participate in a proceeding,
but will not serve as an advocate for stakeholders.
88. We also decline to make any additional changes to the
applicant's duty under Sec. 50.12(a)(1) to develop and maintain a log
of discussions because we conclude that the proposed requirements are
sufficiently detailed to record engagement with affected landowners,
and the Applicant Code of Conduct, as discussed above, is specifically
aimed at promoting good faith engagement. We similarly decline to
require applicants to file the discussion logs with the applicant's
monthly status reports required by Sec. 50.5(e)(11), as such a
categorical requirement is not necessary to promote good faith
engagement and could result in the public disclosure of information
that landowners may not want shared with the general public. With
respect to commenters' request that affected landowners be provided
with any relevant discussion logs, this final rule modifies Sec.
50.12(a)(2) to require applicants to explain to affected landowners
that they may request copies of discussion log entries that pertain to
their property and how affected landowners make such requests, and
modifies Sec. 50.12(a)(5) to require applicants to provide affected
landowners copies of discussion log entries, upon request.
89. Turning to commenter feedback on specific provisions in the
Applicant Code of Conduct, we agree with Public Interest Organizations
that requiring an applicant to provide to each affected landowner
specified documents ``immediately'' after first contact may be vague
and confusing. Therefore, we modify the NOPR proposal in Sec.
50.12(a)(2) by deleting ``immediately'' and adding in its place
``within three business days'' to clarify how soon after the first
contact the required document must be provided to the landowner.
90. We decline to require applicants to provide landowners with
copies of the Applicant Code of Conduct, as recommended in comments. As
stated in the NOPR, 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. We do not believe that
requiring applicants to provide the Commission's regulatory text to
affected landowners is necessary or will assist in our good faith
efforts determination. In any event, we note that the Commission's
Electric Transmission Facilities Permit Process pamphlet--a copy of
which applicants must include as part of their Pre-filing Notifications
sent by mail--will be updated to reflect the provisions in this final
rule, and will include the text of the Applicant Code of Conduct.
91. Regarding requests that applicant representatives present photo
identification when engaging with affected landowners, we agree and
adopt this requirement in Sec. 50.12(a)(3). We find that a photo
identification requirement provides an important protection to an
affected landowner in confirming the identity and business association
of the applicant representative with whom the
[[Page 46694]]
landowner is speaking, and such requirement presents a minimal burden
on the applicant.
92. Given the protections to affected landowners contained herein,
including in the Landowner Bill of Rights and the required sharing of
information by the applicant, as well as the photo identification
requirement, we decline to also add a requirement that applicant
representatives consent to being recorded and photographed.
93. Regarding the request for company representatives to provide
contact information for decision makers, we assume commenters are
referring to a decision maker within the applicant's company. We agree
that it is important to provide affected landowners a way to contact
the applicant to obtain more information about a project or report any
issues with land agents. Therefore, we modify the NOPR proposal in
Sec. 50.12(a)(3) to require an applicant's representative to also
provide contact information for the applicant.
94. Regarding Tribal concerns for obtaining consent to enter Tribal
lands, we clarify that the Applicant Code of Conduct would apply to
land owned in fee by a Tribe or member of a Tribe, so Sec. 50.12(a)(9)
would require approval from the Tribe or member of a Tribe under those
circumstances.
95. We also decline to adopt a requirement that applicants have
specific engagement training that may be provided by Tribes. While such
engagement training may constitute a good business practice, we do not
find a generic requirement necessary to promote good faith efforts to
engage with affected landowners or other stakeholders. We reiterate
that the burden is on the applicant to demonstrate that the good faith
efforts standard has been met, and we therefore expect that the
applicant will take reasonable steps to engage with Tribes.
96. We also disagree that an addition to the Applicant Code of
Conduct to protect landowners' personally identifiable information is
necessary. We expect applicants to protect sensitive information from
public release, however, some personal information (e.g., a landowner's
name or mailing address) may be sourced from public databases or
applicants may need to share such information with its own contractors
or submit it to agencies as part of permitting application submittals.
Of course, when filing information that may contain personal
information with the Commission, applicants should use any appropriate
filing classification for proper treatment by the Commission.\163\
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\163\ For example, applicants may request privileged treatment
for landowner mailing lists submitted to the Commission by following
the procedures specified in Sec. 388.112 of the Commission's
regulations.
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97. As to the suggestion that applicants should communicate with
landowners in their preferred language, we understand the importance of
communicating basic information about the project, particularly to
landowners who may be subject to eminent domain, in languages other
than English where a significant portion of the community has limited
English proficiency. As discussed below, in response to comments, we
modify proposed Sec. 50.4 to require applicants to identify census
block groups that include limited English proficiency households,
identify the languages spoken in those census block groups, and, under
certain circumstances, provide project notifications in languages other
than English. Applicants must also describe in the Environmental
Justice Public Engagement Plan how they will identify, engage, and
accommodate people with limited English proficiency.
C. Environmental Justice Public Engagement Plan
1. NOPR Proposal
98. In the NOPR, the Commission stated that the existing provisions
of Sec. 50.4(a) require applicants to develop and file a Project
Participation Plan early in the pre-filing process.\164\ The Commission
explained that this requirement is intended to facilitate stakeholder
communications and the dissemination of public information about the
proposed project, including meaningful engagement early in the pre-
filing process with potentially affected environmental justice
communities. The Commission further explained that engagement with
environmental justice communities is consistent with a series of
executive orders, the Promising Practices for EJ Methodologies in NEPA
Reviews (Promising Practices) report, and the Commission's Equity
Action Plan.\165\ Accordingly, the Commission proposed to require,
under Sec. 50.4(a)(4) as part of the Project Participation Plan, that
applicants develop an Environmental Justice Public Engagement Plan
describing the applicant's outreach activities that are targeted to
identified environmental justice communities.\166\
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\164\ NOPR, 181 FERC ] 61,205 at P 30.
\165\ Id. (citing E.O. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629 (Feb. 11, 1994); E.O. 14008, Tackling the
Climate Crises at Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O.
13985, Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government, 86 FR 7009 (Jan. 20,
2021); Federal Interagency Working Group on Environmental Justice &
NEPA Committee, 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.;
Commission, Equity Action Plan (2022), https://www.ferc.gov/equity.)
\166\ To identify potentially-affected environmental justice
communities in individual proceedings, 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%; or (2) the
aggregate minority population in the block group affected is 10%
higher than the aggregate minority population percentage in the
county. Federal Interagency Working Group on Environmental Justice &
NEPA Committee, 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. Using
Promising Practices' low-income threshold criteria method, low-
income populations are currently identified 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. E.g., Transcon. Gas
Pipe Line Co. LLC, 186 FERC 61,209, at PP 34-36 (2024).
---------------------------------------------------------------------------
99. The NOPR explained that the proposed Environmental Justice
Public Engagement Plan would require applicants to 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.\167\ The proposed plan
must also describe the manner in which the applicant will reach out to
environmental justice communities about potential mitigation.\168\
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\167\ NOPR, 181 FERC ] 61,205 at P 31.
\168\ We note that the proposed 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 Part II.F.4.e.
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2. Comments
100. Some commenters question the Commission's authority to require
the Environmental Justice Public Engagement Plan, given the reliance on
executive orders and guidance. Representatives McMorris Rodgers and
Duncan state that the NOPR appears to broadly interpret the
Commission's
[[Page 46695]]
statutory authority and thus request that the Commission specify what
statutory authorities it is relying upon.\169\ Conversely, NESCOE
argues that the proposed Environmental Justice Public Engagement Plan
aligns with the Commission's statutory authority under FPA section
216(b).\170\ ClearPath is also concerned that reliance on best
practices derived from CEQ, the Environmental Protection Agency (EPA),
Census Bureau, and other authoritative sources, introduces uncertainty
and delay should applicants have to re-do compliance requirements every
time new data or guidance becomes available.\171\
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\169\ Representatives McMorris Rodgers and Duncan Comments at 2.
\170\ NESCOE Comments at 15-26.
\171\ ClearPath Comments at 4.
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101. American Chemistry Council and ClearPath argue that, although
they support community engagement, the proposed Environmental Justice
Public Engagement Plan does not advance this goal because the proposal
imposes extensive new requirements, as well as specific notice and
follow-up actions that are likely to undermine community engagement,
redirect effort from engagement to duplicative and excessive paperwork,
and foster increased procedural litigation and challenges--leading to
delays.\172\ American Chemistry Council states that the Commission
should limit any new planning mandates to outlining strategic goals,
planned communication tools and strategies, and desired outcomes.\173\
Representatives McMorris Rodgers and Duncan argue that the
Environmental Justice Public Engagement Plan includes vague
requirements and asks whether the Commission will issue more specific
guidelines.\174\ ClearPath argues that the Commission failed to explain
how the current stakeholder participation revisions are deficient for
environmental justice communities, but not for the general public;
therefore, it recommends that the Commission continue to utilize its
existing public participation procedures and not add a separate,
duplicative Environmental Justice Public Engagement Plan.\175\
---------------------------------------------------------------------------
\172\ American Chemistry Council Comments at 7; ClearPath
Comments at 4-5.
\173\ American Chemistry Council Comments at 7.
\174\ Representatives McMorris Rodgers and Duncan Comments at 2.
\175\ ClearPath Comments at 4.
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102. On the other hand, several commenters support the requirement
for an Environmental Justice Public Engagement Plan. Public Interest
Organizations believe that the Commission must take concrete, tangible
action to require robust community engagement and partnership.\176\
Environmental Law & Policy Center states that this early stakeholder
engagement will improve the transmission siting process.\177\ Clean
Energy Buyers also comment in support but recognize that the success of
a plan will depend on the applicant's ability to actually engage with
the target communities.\178\
---------------------------------------------------------------------------
\176\ Public Interest Organizations Comments at 44, 86-89.
\177\ Environmental Law & Policy Center Comments at 2.
\178\ Clean Energy Buyers Comments at 8-9.
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103. Several commenters request clarification and revision to the
proposed requirement for an Environmental Justice Public Engagement
Plan. EDF states that because the NOPR was drafted before the issuance
of Executive Order 14096, the Commission should review its proposal in
light of renewed and strengthened environmental justice requirements to
ensure compliance with updated rules and guidance.\179\ It also
encourages the Commission to mandate engagement on mitigation,
including the discussion of alternatives and community benefit
programs. Environmental Law & Policy Center urges the Commission to
adopt specific recommendations to ensure that engagement is more than a
box-checking exercise for developers.\180\ NESCOE states that, under
the NOPR proposal, applicants would not be required to comply with any
actual standards for engaging with environmental justice communities,
including documentation, accountability, and enforcement of
consequences for inadequate engagement.\181\ EDF requests that the
Commission periodically review the results of applicants' Environmental
Justice Public Engagement Plans and determine whether they are yielding
sufficient engagement with environmental justice communities.\182\
---------------------------------------------------------------------------
\179\ EDF Comments at 9 (referencing E.O. 14096, Revitalizing
Our Nation's Commitment to Environmental Justice for All, 88 FR
25251 (Apr. 21, 2023)).
\180\ Environmental Law & Policy Center Comments at 2.
\181\ NESCOE comments at 25; EDF Comments at 9.
\182\ EDF Comments at 9.
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104. Several commenters recommend specific methodology and
terminology clarifications.\183\ Public Interest Organizations ask the
Commission to require applicants to use updated information from CEQ
and EPA when identifying environmental justice communities as part of
their Environmental Justice Public Engagement Plan or providing
specificity on the additional sources the Commission expects applicants
to use, to ensure consistency and transparency in the methodology
selection process.\184\ Public Interest Organizations state that the
Commission must: prioritize identification methodologies that promote
accurate identification of environmental justice communities; provide
guardrail language to guide the methodology selection process while
creating flexibility; acknowledge the scope and limitations of
potential databases and tools, where applicable; and commit to promptly
update its methods for identifying environmental justice
communities.\185\ In addition, they state that the Commission should
refine the term ``outreach activities'' in order to require developers
to seek guidance on and then incorporate community-based best practices
and methods for both disseminating and requesting information and input
from the community.\186\ Public Interest Organizations argue that
outreach activities should include a reciprocal educational component
where developers as well as the community members share and
meaningfully engage with each other.\187\
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\183\ EDF Comments at 8; Environmental Law & Policy Center
Comments at 4.
\184\ Public Interest Organizations Comments at 86.
\185\ Id. at 84-85.
\186\ Id. at 88.
\187\ Id.
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105. EDF and Policy Integrity recommend that the Commission and
developers utilize specific tools such as the EPA's EJScreen Tool,
CEQ's Climate and Economic Justice Screening Tool (CEJST), and State-
developed mapping tools to identify environmental justice
communities.\188\ Public Interest Organizations agree on the need for
more nuanced and fulsome identification of environmental justice
communities, but state that utilization of the EJScreen and CEJST can
only be useful first steps in this methodology given that both tools
have inherent limitations.\189\
---------------------------------------------------------------------------
\188\ EDF Comments at 9; Policy Integrity Comments at 24-37;
Environmental Law & Policy Center Comments at 4.
\189\ Public Interest Organizations Comments at 84-85.
---------------------------------------------------------------------------
106. Policy Integrity states that the Commission should require
incorporation of screening tools that use a combination of
environmental and socioeconomic proxies, such as proximity to
pollution, because relying upon demographic-only proxies like income
and race might not capture localized harms and omit communities that
would otherwise satisfy the proposed definition of environmental
[[Page 46696]]
justice community.\190\ It asks the Commission to recognize any
historically marginalized community that bears any type of
disproportionate environmental burden or faces disparities in access to
environmental benefits as an environmental justice community.\191\ In
addition, Policy Integrity states that the Commission should establish
a mechanism for communities to self-identify as environmental justice
communities, and then adjudicate whether a community should be
considered an environmental justice community in light of submitted
evidence.\192\
---------------------------------------------------------------------------
\190\ Policy Integrity Comments at 24.
\191\ Id. at 2.
\192\ Id. at 37-39.
---------------------------------------------------------------------------
107. Commenters make additional recommendations in support of
transparency and accountability in the process of engaging with
environmental justice communities, including requiring notices in
languages other than English, maintaining a project website, and using
additional notification methods.\193\ NESCOE recommends several
engagement best practices such as holding in-person meetings ``in
locations that are accessible by public transportation . . . [and] at
times that would allow working individuals to attend,'' providing
childcare during such meetings, designating a community liaison, and
disseminating non-technical information that meaningfully explains how
one might be impacted by the project.\194\ Some commenters recommend
that the Commission's Office of Public Participation have a role in the
identification of barriers to participation as well as helping foster
engagement between the Commission, applicants, and environmental
justice communities.\195\
---------------------------------------------------------------------------
\193\ ClearPath Comments at 5; Public Interest Organizations
Comments at 87; NESCOE Comments at 26.
\194\ NESCOE Comments at 26.
\195\ Id. at 25-26; Public Interest Organizations Comments at
89-91.
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108. NESCOE and Clean Energy Buyers suggest that the Commission
should ensure that its public engagement and environmental justice
review practices are generally consistent and coordinated with
applicable State policies and agencies.\196\ Joint Consumer Advocates
argue that the Commission's proposed approach only requires applicants
to describe outreach activities and summarize comments, which largely
places the burden on disadvantaged populations to describe anticipated
impacts to human health or the environment, rather than engaging State
agencies like consumer advocate offices.\197\
---------------------------------------------------------------------------
\196\ NESCOE Comments at 26; Clean Energy Buyers Comments at 9.
\197\ Joint Consumer Advocate Comments at 18.
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3. Commission Determination
109. We adopt the NOPR proposal to require an Environmental Justice
Public Engagement Plan under Sec. 50.4(a)(4) as a component of the
Project Participation Plan, with the following modification. The NOPR
proposed that the plan describe an applicant's efforts to identify,
engage, and accommodate ``non-English speaking groups and
linguistically isolated communities;'' however, this final rule updates
that terminology to ``people with limited English proficiency.''
110. As an initial matter, we disagree that requiring applicants to
include an Environmental Justice Public Engagement Plan as part of its
Project Participation Plan exceeds the Commission's statutory
authority. NEPA requires the Commission to evaluate the environmental
impacts of any major Federal action, such as the issuance of a permit
to site electric transmission facilities under section 216 of the
FPA.\198\ The Commission's obligation to take a ``hard look'' at such
impacts under NEPA requires consideration of impacts on environmental
justice communities, much as it requires the Commission to consider
impacts on other affected communities.\199\ This requirement
facilitates the development of the record, including the Environmental
justice resource report, that the Commission needs to assess impacts on
environmental justice communities by providing a roadmap for
applicants' engagement with environmental justice communities and an
opportunity for comment on that engagement. In addition, requiring
applicants to describe engagement with identified environmental justice
communities will assist the Commission in meeting its statutory
obligations under FPA section 216. Because environmental justice
communities may experience environmental impacts more acutely than
other communities or targeted methods of engagement may be more
effective,\200\ we appropriately require that an applicant develop a
targeted outreach plan for environmental justice communities.\201\
---------------------------------------------------------------------------
\198\ 42 U.S.C. 4332(2)(C); see Sierra Club v. FERC, 38 F.4th
220, 226 (D.C. Cir. 2022).
\199\ See Sierra Club v. FERC, 867 F.3d 1357, 1368 (D.C. Cir.
2017).
\200\ For example, targeted methods of engagement may include
additional notification to community leaders, religious
institutions, and other community resources, and the publishing of
project information via community newspapers and radio stations.
\201\ See E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251, 25252 (Apr. 21, 2023).
---------------------------------------------------------------------------
111. Requiring an applicant to describe its outreach targeted to
environmental justice communities as part of its Project Participation
Plan is also consistent with the Executive Orders that direct Federal
agencies to identify and address disproportionate and adverse human
health or environmental effects of their actions on minority and low-
income populations (i.e. environmental justice communities).\202\ In
response to EDF's request that we review Executive Order 14096, we note
that the new Executive Order did not rescind Executive Order 12898. The
Commission's current practices as an independent regulatory agency are
largely consistent with the principles and goals of Executive Order
14096.\203\ This requirement is also consistent with the Commission's
2022 Equity Action Plan, which promotes equitable processes and
outcomes for underserved communities, including environmental justice
communities, at the Commission.\204\
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\202\ See E.O. 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR
7629 (Feb. 11, 1994); E.O. 14008, Tackling the Climate Crises at
Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O. 13985, Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government, 86 FR 7009 (Jan. 20, 2021); E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for
All, 88 FR 25251 (Apr. 21, 2023).
\203\ E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251 (Apr. 21, 2023).
\204\ FERC, Equity Action Plan (2022), https://www.ferc.gov/equity.
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112. Regarding comments stating that the proposed Environmental
Justice Public Engagement Plan does not advance the goal of community
engagement and imposes extensive new or duplicative requirements, we
disagree. The Commission currently requires a Project Participation
Plan in Sec. 50.4(a), which requires applicants to identify specific
tools and actions to facilitate stakeholder communications and public
information, including those tools and actions used to engage
stakeholders.\205\ To advance stakeholder participation under Sec.
50.4, we are requiring applicants to plan and target their outreach to
ensure appropriate and effective meaningful engagement with
[[Page 46697]]
potentially affected environmental justice communities.
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\205\ Consistent with the revised definition of ``stakeholder''
in Sec. 50.1 in this final rule, all stakeholders mean any
``Federal, State, interstate, or local agency; any Indian Tribe; any
affected landowner; any environmental justice community member; or
any other interested person or organization.''
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113. The requirement to address targeted outreach to identified
environmental justice communities merely codifies the expectation that
engagement with stakeholders in differing circumstances will require
differing approaches in order to be effective. Therefore, we do not
believe this requirement imposes additional administrative burden or
delay for applicants. This separate provision aims to ensure that
applicants do not use a ``one size fits all'' approach to outreach, and
it fosters the inclusion of outreach techniques that are tailored to
communication with environmental justice communities.
114. With regard to potential burdens placed on environmental
justice communities in having to communicate potential adverse impacts
caused or exacerbated by the project, we acknowledge this concern and
require applicants to identify the measures taken to accommodate
environmental justice communities who may face barriers to traditional
outreach or engagement methods. Additionally, the Commission's Office
of Public Participation will continue to engage with the public and act
as a liaison to members of the public affected by and interested in
Commission proceedings.
115. In response to comments recommending that the Commission
require the utilization of specific screening tools to identify
environmental justice communities such as CEQ's CEJST, we decline to do
so. The Commission currently uses the smallest geographic data area
available, census block groups, to identify environmental justice
communities in accordance with the identification methodology put forth
in Promising Practices and described above.\206\ In contrast, CEJST
uses census tracts, a larger geographic data area, to identify
``disadvantaged communities'' based on a variety of thresholds. We
decline to require the use of alternative screening tools that do not
provide a localized review of smaller environmental justice communities
in block groups. Further, to the extent that commenters argue that the
Commission should utilize the tools to expand the definition of
environmental justice communities, we decline for the reasons expressed
addressing definitions below.\207\
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\206\ Supra note 166. E.g., ANR Pipeline Co., 185 FERC ] 61,191,
at P 96 (2023); see also PennEast Pipeline Co. LLC, 170 FERC ]
61,198, at 62,305 (2020) (upholding staff's reliance on EPA's
EJScreen Tool to identify census block groups meeting the definition
of an environmental justice community despite the availability of
alternative screening tools).
\207\ Infra P 135.
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116. We acknowledge the desire expressed by commenters for specific
guidance for the Environmental Justice Public Engagement Plan and best
practices for engagement with environmental justice communities.\208\
But we find that the provisions of Sec. 50.4 are sufficient to
establish applicants' obligation to prepare a Project Participation
Plan that includes how they will address outreach to environmental
justice communities.
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\208\ Outside of this final rule, the Commission has received
comments on best practices for engagement with environmental justice
communities during the Environmental Justice Roundtable and filed in
Docket No. AD23-5-000.
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117. Likewise, we decline to incorporate policies of States or
other agencies. Such specific practices may not be universally or
practically applicable across the variety of applications and contexts
relevant to this rule. Imposing an overly prescriptive set of
requirements mandating specific methodologies could negatively impact
flexibility needed to address engagement in the context of a broad
spectrum of applications. Instead, we believe such practices may more
appropriately be considered as part of future action by the Commission
in specific proceedings and/or as guidance, intended to assist
applicants to more effectively implement their regulatory obligations.
118. We also decline to adopt requirements mandating specific
levels of engagement as part of this rule. Again, adopting such
requirements is impracticable given the variety of applications and
related factual contexts we expect to encounter.
D. Revisions to 18 CFR Part 50
1. Section 50.1--Definitions
119. Section 50.1 sets forth the definitions for part 50 of the
Commission's regulations. The Commission proposed in the NOPR to add
definitions for ``Indian Tribe'' and ``environmental justice
community.'' The Commission also proposed to revise the definitions of
``national interest electric transmission corridor,'' ``permitting
entity,'' and ``stakeholder.'' Although the Commission did not propose
to revise the definition of ``affected landowners,'' the NOPR sought
comment on whether the Commission should revise the definition to
include landowners within a certain geographic distance from the
proposed project facilities.
120. This final rule adopts a definition for ``Indian Tribe,'' as
proposed in the NOPR, consistent with the Commission's regulations
governing other types of energy infrastructure projects.\209\ We also
adopt the definition of ``permitting entity'' as proposed in the NOPR.
In addition, we modify several proposed definitions as further
discussed below.
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\209\ See, e.g., 18 CFR 4.30(b)(10) (2023) (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).
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a. Definition of Environmental Justice Community
i. NOPR Proposal
121. The Commission in the NOPR proposed 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.\210\ Specifically, the Commission proposed 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.''
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\210\ See discussion supra Part II.C.
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ii. Comments
122. Farm Bureaus state that at the Federal level there is no clear
definition of environmental justice communities.\211\ American
Chemistry Council and NESCOE agree and encourage the Commission to work
with EPA, DOE, and other Federal agencies to develop one consistent
definition for environmental justice communities, as the lack of a
consistent terminology and definition across government programs
creates confusion and uncertainty for all stakeholders.\212\ ClearPath
questions the legal durability of the Commission's definition,
particularly if other agencies adopt different definitions.\213\
ClearPath and Chamber of Commerce assert that adding the definition of
``environmental justice community'' may exceed the Commission's
statutory authority and expertise, increasing opportunities for legal
challenges.\214\
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\211\ Farm Bureaus Comments at 13.
\212\ American Chemistry Council Comments at 7; NESCOE Comments
at 27.
\213\ ClearPath Comments at 4.
\214\ ClearPath Comments at 4; Chamber of Commerce Comments at
4.
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[[Page 46698]]
123. ClearPath and Representatives McMorris Rodgers and Duncan
assert that the Commission's definition of ``environmental justice
community'' is standardless, such that the term ``overburdened by
pollution'' has neither a quantitative methodology for applicants to
follow nor a threshold for a designation to be made in a legally
durable manner.\215\ ClearPath states that the Commission makes the
definition open-ended when it states it ``includes, but may not be
limited to minority populations, low-income populations, or indigenous
people.'' \216\ Chamber of Commerce states that transmission line
infrastructure is not a source of ``pollution'' as contemplated under
the Commission's proposed definition of ``environmental justice
community.'' \217\
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\215\ ClearPath Comments at 4; Representatives McMorris Rodgers
and Duncan Comments at 2.
\216\ ClearPath Comments at 4.
\217\ Chamber of Commerce Comments at 3-4.
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124. CATF suggests that the proposed definition of ``environmental
justice community'' be modified, specifically to remove the word
``disadvantaged,'' citing a CEQ memorandum which states that some
communities and advocates prefer ``overburdened and underserved''
instead of ``disadvantaged.'' \218\
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\218\ CATF Comments at 9.
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125. EDF and Policy Integrity state that the Commission's
definition for ``environmental justice community'' is too narrow,
risking the omission of communities that bear disproportionate
environmental burdens beyond pollution (e.g., flooding) and health
impacts resulting from industry and infrastructure, or that lack equal
access to environmental benefits (e.g., green space).\219\
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\219\ EDF Comments at 8; Policy Integrity Comments at 2.
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126. EDF also states that the Commission's proposed definition
could be read as limiting the consideration of communities that can
specifically demonstrate that they have been historically marginalized
or overburdened by pollution, since it contains an additional
requirement that the community be a ``disadvantaged community,''
without a definition of that term.
127. Impacted Landowners state that rural landowners along the
center line of a proposed overhead transmission project on a new right-
of-way should be considered environmental justice communities because
such landowners are disadvantaged and marginalized.\220\ Further,
Impacted Landowners suggest that identification of environmental
justice communities should include religious affiliation, occupation,
age, or those who have been historically impacted due to numerous
energy infrastructure projects located on their property.\221\
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\220\ Impacted Landowners Comments at 20.
\221\ Impacted Landowners Comments at 24.
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128. Los Angeles DWP proposes defining environmental justice
community as ``a group of people or a community that is
disproportionately affected by environmental pollution, hazards, or
other environmental risks, and that may face social, economic, or
political barriers to accessing a healthy and sustainable
environment.'' \222\
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\222\ Los Angeles DWP Comments at 3.
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129. Public Interest Organizations recommend revising the
Commission's proposed definition of environmental justice community to
include ``any community that is historically marginalized and/or
overburdened by pollution, including but not limited to communities
with significant representation of communities of Color, low-income
communities, or Indian Tribes and Indigenous peoples.'' \223\ Public
Interest Organizations also state that using the term ``communities
with significant representations of communities of Color,'' rather than
``minority populations'' reflects the Commission's practice of using
the Fifty Percent Analysis and Meaningfully Greater Analysis, as
recommended in Promising Practices.
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\223\ Public Interest Organizations Comments at 81.
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130. Public Interest Organizations also request that the Commission
include a definition of ``overburdened'' in Sec. 50.1.\224\ They point
to the EPA 2020 EJ Glossary for the Commission to model in defining
``overburdened communities.'' \225\
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\224\ Public Interest Organizations Comments at 83.
\225\ The EPA 2020 EJ Glossary defines ``overburdened
communities'' as ``minority, low-income, tribal, or Indigenous
populations or geographic locations in the United States that
potentially experience disproportionate environmental harms and
risks. This disproportionality can be as a result of greater
vulnerability to environmental hazards, lack of opportunity for
public participation, or other factors. Increased vulnerability may
be attributable to an accumulation of negative or lack of positive
environmental, health, economic, or social conditions within these
populations or places. The term describes where multiple factors,
including both environmental and socio-economic stressors, may act
cumulatively to affect health and the environment and contribute to
persistent environmental health disparities.'' EPA, EJ 2020 Glossary
(Feb. 2024), https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf.
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131. SEIA recommends revising the Commission's proposed definition
of ``environmental justice community'' to ``a geographic location with
significant representation of persons of color, low-income persons,
indigenous persons, or members of Tribal nations, where such persons
experience, or are at risk of experiencing, higher or more adverse
human health or environmental outcomes.'' \226\ SEIA states that this
definition would be quantifiable based on census data, and can allow
all stakeholders to work from a common understanding of what would make
an environmental justice community.
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\226\ SEIA Comments at 12.
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iii. Commission Determination
132. The Commission adopts the definition of ``environmental
justice community'' as proposed in the NOPR with one modification,
removing ``disadvantaged'' in the definition, as further discussed
herein.
133. As an initial matter, we disagree that defining
``environmental justice community'' exceeds the Commission's legal
authority for the same reasons expressed above.\227\ Further, we
decline to defer establishing a definition of ``environmental justice
community'' until such time as a universal definition can be agreed
upon by multiple agencies because the Commission cannot wait to carry
out its statutory responsibilities under NEPA and section 216 of the
FPA.
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\227\ Supra PP 110-111.
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134. We are informed by Executive Order 14008's focus on
communities that have been historically and disproportionately
marginalized and overburdened by pollution.\228\ The term
``environmental justice community'' includes, but may not be limited
to, minority populations, low-income populations, or indigenous
peoples.\229\ This definition is substantially the same definition the
Commission has used in its environmental reviews and orders pertaining
to energy infrastructure development applications over the last several
years.\230\ The definition has allowed the Commission, applicants, and
stakeholders to have a general sense of the types of communities that
may fall under the term, while the identification methodology noted
above \231\ and in each of the Commission's NEPA documents and
Commission orders provides a common understanding of the steps
necessary to identify environmental justice
[[Page 46699]]
communities. To the extent that the Commission, applicants, or
participants identify additional populations with environmental justice
concerns, the Commission will address impacts on these communities in
the context of specific proceedings.
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\228\ E.O. 14008, Tackling the Climate Crises at Home and
Abroad, 86 FR 7619 (Jan. 27, 2021); see also E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for
All, 88 FR 25251 (Apr. 21, 2023).
\229\ See E.O. 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR
7629 (Feb. 11, 1994); see also EPA, EJ 2020 Glossary (Feb. 2024),
https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf.
\230\ See, e.g., Columbia Gas Transmission, LLC, 186 FERC ]
61,048, at P 20 n.36 (2024); Andrew Peklo III, 186 FERC P 61,208, at
P 23 n.41 (2024).
\231\ Supra note 166.
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135. We define ``environmental justice community'' with the intent
of neither too rigidly limiting nor strictly defining a set list of
demographic populations or communities. We are intentionally allowing
flexibility in the definition of ``environmental justice community,''
as this acknowledges that there are many environmental or human health
qualifiers that may need to be analyzed separately by Commission staff
to determine anticipated impacts on potential environmental justice
communities. This flexibility is intended to strike a balance between
applying an identification methodology that can be used in all
proceedings and allowing the identification of other populations,
during scoping or in comments filed in the record of individual
proceedings, that may fall outside of the categories of minority
populations, low-income populations, or indigenous peoples. We do not
agree that this flexibility renders the definition practically
unworkable, as applicants seeking to develop energy infrastructure in
other contexts have been able to use the definition and identification
methodology to successfully develop and submit the information that the
Commission needs to process applications.\232\ Likewise, we do not
agree that the definition of ``environmental justice community'' is so
expansive that it cannot be readily understood and applied.
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\232\ E.g., ANR Pipeline Co., 185 FERC ] 61,191 at P 96.
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136. Commenters' assertion that transmission line infrastructure is
not a source of ``pollution'' as contemplated under the definition of
``environmental justice community'' is inapposite. Defining an
environmental justice community as one that has been overburdened by
pollution acknowledges the historical burdens of disproportionate rates
of pollution faced by environmental justice communities.\233\ We
believe that there are many ways in which transmission line
infrastructure may result in reasonably foreseeable adverse impacts on
environmental justice communities during construction, operation, and
maintenance of the project facilities.
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\233\ See E.O. 14008, Tackling the Climate Crises at Home and
Abroad, 86 FR 7619 (Jan. 27, 2021).
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137. We acknowledge commenters' concerns regarding use of the word
``disadvantaged'' in the definition of ``environmental justice
community.'' Given that the definition of environmental justice
communities adopted in this final rule includes language indicating its
applicability to communities that have been historically marginalized
and overburdened by pollution, we agree that it is not necessary to
include the word ``disadvantaged'' in the definition and have removed
it in this final rule. We also decline to adopt a separate definition
for the term ``overburdened'' or to add ``underserved'' to the
definition. As explained above, the proposed definition has allowed the
Commission, applicants, and stakeholders to have a general sense of the
types of communities that may fall under the phrase without the need
for further definition or including additional terms, while the
Commission's identification methodology provides a common understanding
of the steps necessary to identify environmental justice communities.
138. We decline to adopt the phrase ``communities with significant
representations of communities of Color'' because we conclude that the
definition we are adopting is sufficiently broad to identify
communities that have been historically marginalized and overburdened
by pollution without that addition. We will continue our practice of
defining ``environmental justice communities'' as including, but not
being limited to, minority populations, low-income populations, or
indigenous peoples.
b. Definition of National Interest Electric Transmission Corridor
i. NOPR Proposal
139. The Commission proposed in the NOPR to revise the definition
of ``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).
ii. Comments
140. While EDF states that the proposed definition of ``national
interest electric transmission corridor'' is appropriate, Farm Bureaus
and Kentucky Commission state that the definition is too broad, as a
National Corridor could include any geographic area that has any amount
of congestion.\234\ Kentucky Commission requests that the Commission
modify the definition to include a threshold for congestion, while Farm
Bureaus request that the Commission reopen public comment on this
proposal after DOE has identified National Corridors.\235\ EDF notes
that the Commission and DOE should coordinate to ensure consistent
definitions.
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\234\ EDF Comments at 5; Farm Bureaus Comments at 2; Kentucky
Commission Comments at 3.
\235\ Kentucky Commission Comments at 3; Farm Bureaus Comments
at 2.
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iii. Commission Determination
141. We adopt the definition of ``national interest electric
transmission corridor'' proposed in the NOPR in this final rule. As
stated in the NOPR, the Commission proposed changes to the definition
of ``national interest electric transmission corridor'' strictly to
incorporate the revisions to the term in the IIJA's amendment to
section 216(a) of the FPA, and we continue to find it appropriate to
define this term based on the statute. Section 216(a) of the FPA
designates the Secretary of DOE as the sole authority to determine
whether a geographic area is experiencing, or expected to experience,
sufficient capacity constraints or congestion to warrant the
designation of a ``national interest electric transmission corridor,''
and the Commission will defer to DOE's interpretation of the statute
for those purposes. Additionally, as the proposed definition is derived
directly from the statute, it is unnecessary to wait to finalize this
regulation until DOE has identified a National Corridor.\236\
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\236\ In DOE's recent Guidance on section 216(a), DOE's
definition of a National Corridor closely matches the Commission's
proposed definition. DOE defined a National Corridor as ``. . . a
geographic area where, based on the Needs Study or other relevant
information, DOE has identified . . . present or expected
transmission capacity constraints or congestion that adversely
affects consumers, and which has been designated by the Secretary as
a [National Corridor].'' DOE Grid Deployment Office, Guidance on
Implementing Section 216(a) of the Federal Power Act, at 16 (Dec.
19, 2023).
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c. Definition of Stakeholder
i. NOPR Proposal
142. The Commission in the NOPR proposed to revise the definition
of ``stakeholder'' for clarity and to ensure that environmental justice
community members and other interested persons or organizations are
covered by the definition. As proposed, Sec. 50.1 defines
``stakeholder'' as 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.
ii. Comments
143. Impacted Landowners state that grouping severely impacted
landowners
[[Page 46700]]
with individuals who have generalized environmental concerns, or
project advocates who will profit from the project, and considering
them all equal ``stakeholders'' is unfair and unjust. Impacted
Landowners suggest that a stakeholder should be defined as a person or
entity with an interest in a project but who will experience no
impacts.\237\ Niskanen states that the definition of stakeholder is too
broad and suggests the definition be modified to include any Federal,
State, interstate, Tribal, or local agency or Tribal government
involved with approving or whose interests may be affected by the
proposed transmission facilities, and any environmental justice
community that could be potentially impacted in some way by a proposed
project.\238\
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\237\ Impacted Landowners Comments at 22.
\238\ Niskanen Comments at 9-11.
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144. Public Interest Organizations recommend that the Commission
amend the definition of stakeholder to replace ``Tribal government''
with ``Indian Tribe,'' and that the Commission should add ``Indigenous
peoples'' to the definition of stakeholders.\239\ Public Interest
Organizations explain that the distinction between Indian Tribes and
any Tribal community member will preserve the government-to-government
relationship between the Federal government and Indian Tribes. Niskanen
also notes that the proposed definition for stakeholder as it relates
to ``any Tribal government'' is inconsistent with the definition given
in Sec. 50.1 of ``Indian Tribe.''
---------------------------------------------------------------------------
\239\ Public Interest Organizations Comments at 53-54.
---------------------------------------------------------------------------
iii. Commission Determination
145. We adopt the definition of ``stakeholder'' proposed in the
NOPR, with one modification. We agree with Public Interest
Organizations and Niskanen that the definition of ``stakeholder''
should include the term ``Indian Tribe'' instead of ``Tribal
government,'' for consistent use of defined terms in the Commission's
regulations. Therefore, this final rule adopts usage of ``Indian
Tribe'' in the definition of ``stakeholder.'' Similarly, the use of
``Tribal government'' in applicant notification requirements in Sec.
50.4(c)(1) is replaced with ``Indian Tribe.''
146. We also decline to limit the definition of stakeholders to
entities that may be interested but would experience no impacts from a
project, or to only agencies or governments that would be affected by a
project. The extent of project-related effects is evaluated and refined
throughout the review process and may not be well understood early in
the review process when engagement with stakeholders should begin.
Further, impacts from a project can vary from direct environmental
effects to indirect effects on users of public spaces to non-
environmental effects for individuals who will experience less
congestion, increased reliability of their electric grid, or rate
changes. Further, Niskanen's suggested definition would remove from
consideration landowners or other individuals who do not meet the
definition of affected landowner and are not members of an
environmental justice community, but who may be affected by a project.
As such, we find it appropriate to allow any interested party to be
considered a stakeholder.
147. With respect to Public Interest Organizations' request to add
``Indigenous peoples'' to the definition of ``stakeholder,'' we note
that Indigenous peoples are considered stakeholders under the
definition proposed and adopted in this final rule.
d. Definition of Affected Landowner
i. NOPR Proposal
148. In the NOPR, the Commission did not propose any revisions to
the existing definition of ``affected landowners'' in Sec. 50.1, which
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. Nevertheless, the NOPR
sought comment on whether the Commission should revise the definition
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.
ii. Comments
149. ClearPath opposes any revisions to the existing definition of
``affected landowners,'' arguing that the Commission has not provided
evidence that the definition is deficient or that Congress directed the
Commission to revise the definition.\240\ ClearPath also states that
the NOPR fails to address whether expanding the definition of
``affected landowners'' would qualify the additional affected
landowners for compensation under eminent domain, which may make
projects economically unviable.\241\
---------------------------------------------------------------------------
\240\ ClearPath Comments at 5.
\241\ Id.
---------------------------------------------------------------------------
150. Several commenters note that property tax bills do not list
more than one person even if there are multiple owners of property, and
do not list tenants with possessory interests. These commenters request
that the Commission revise the definition of ``affected landowners'' to
include any person with a legal right or interest in the property
(e.g., a landowner, a contract purchaser of record, a person possessing
the property under a lease, a record lienholder, a record encumbrancer
of the property, and conservation easement holders).\242\ EDF and
Public Interest Organizations ask that the Commission clarify the
definition of ``affected landowners'' as it relates to Tribal lands,
particularly whether individual Tribal members residing on trust land
satisfy the definition, and request that Tribes be included in the
definition due to trust responsibilities.\243\
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\242\ EDF Comments at 5; Farm Bureaus Comments at 2-3; Land
Trust Alliance Comments at 2-3.
\243\ EDF Comments at 5; Public Interest Organizations Comments
at 26-27.
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151. EDF, Niskanen, Public Interest Organizations, and SEIA state
that the Commission should use DOE's definition of ``affected
landowners'' from its then-current regulations implementing section
216(h) of the FPA (i.e., landowners located within either 0.25 miles of
a proposed study corridor or route of a qualifying project or at a
minimum distance specified by State law, as well as those with a
residence within 3,000 feet of a proposed construction work area for a
qualifying project),\244\ because it is broader than the Commission's
definition and will provide for regulatory consistency between the
Commission and DOE.\245\ Public Interest Organizations argue that
[[Page 46701]]
limiting affected landowners to those within 50 feet of proposed
facilities fails to provide surrounding residents and communities the
opportunity to meaningfully participate in the permitting process, and
may cause landowners beyond this distance to feel marginalized, which
may add unnecessarily high regulatory and litigation risks.\246\
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\244\ 10 CFR 900.3 (2023). On May 1, 2024, DOE issued a final
rule revising its regulations implementing section 216(h) of the FPA
that, among other things, revises this definition and removes the
distance criteria. See DOE, Coordination of Federal Authorizations
for Electric Transmission Facilities, 89 FR 35312 (May 1, 2024).
Regarding the revised definition to be codified at 10 CFR 900.2, DOE
provides that a ``potentially affected landowner'' is one whose real
property interest is potentially affected directly or indirectly by
a proposed project. 89 FR 35340. DOE's final rule is effective on
May 31, 2024.
\245\ EDF Comments at 6; Niskanen Comments at 6-9; Public
Interest Organizations Comments at 25-26.
\246\ Public Interest Organizations Comments at 25-26.
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152. Impacted Landowners request that the Commission use the term
``impacted landowners'' instead of ``affected landowners,'' noting that
it is the degree of impact, not an arbitrary distance, that creates an
impacted landowner.\247\ Niskanen indicates that the current definition
does not adequately consider visual impacts or light pollution and
subsequent devaluation of property.\248\ EDF and Land Trust Alliance
suggest that the Commission use the results of a visual impact
assessment to identify affected landowners, and define ``affected
landowners'' as any landowner whose viewshed or ecosystem services may
be affected.\249\ Conversely, ClearPath argues that broadly expanding
the affected landowner definition to anyone whose viewshed is affected
could include properties up to 17 miles away and that the resource
report addressing visual impacts in an application requires evaluating
visual effects without the need to increase the affected landowner
definition.\250\
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\247\ Impacted Landowners Comments at 21.
\248\ Niskanen Comments at 6-9.
\249\ EDF Comments at 6; Land Trust Alliance Comments at 3.
\250\ ClearPath Comments at 5.
---------------------------------------------------------------------------
iii. Commission Determination
153. We continue to find the definition of affected landowner in
our existing regulations appropriate and adopt no changes.
154. In response to ClearPath's concern that changing the
definition might mean additional landowners would be entitled to
compensation, we note that section 216(f) of the FPA provides that any
right-of-way acquired for construction or modification of transmission
facilities through the use of eminent domain is considered a taking of
private project for which just compensation is due. Whether a landowner
is entitled to just compensation under section 216(f) is in no way
connected to how the Commission's regulations define an affected
landowner.
155. As part of the Commission's review process, we seek to ensure
that landowners are given an opportunity to submit comments and
participate in the Commission proceeding. Therefore, the definition of
``affected landowners'' is meant to encompass owners of property that:
are proposed to be crossed by the project, are most likely to be
affected by minor route adjustments or variations that may occur to
avoid or minimize impacts to sensitive resources based on environmental
survey results, or may be impacted by construction activities conducted
in close proximity. The definition of ``stakeholder'' is then intended
to capture other landowners and parties who may have an interest in a
project or may be otherwise affected by a project and can inform the
Commission's review of an application.
156. We acknowledge the numerous requests for a broader and more
inclusive definition of an affected landowner (e.g., to include
lessees, multiple property owners, conservation easement holders) but
decline to adopt such a definition. The definition of ``affected
landowners'' sets forth the scope of other regulatory obligations,
including specific notification requirements, and applicants must have
a practicable means of determining which entities fall within the scope
of the definition. We find that there are not sufficient means for an
applicant to readily identify a broader set of entities, as proposed by
commenters, particularly for lengthy proposed transmission lines. The
existing definition of ``affected landowners'' is practicable and
likely to identify most entities with interests in the property. While
a Tribe or member of a Tribe would not be an affected landowner if they
occupy lands held in trust by the United States, a Tribe or member of a
Tribe may qualify as an affected landowner if they occupy land that is
not held in trust by the United States and otherwise meet the
definition.\251\
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\251\ We note that with regard to the Commission's trust
responsibilities, Tribes are afforded additional outreach and
consultations consistent with the Commission's consultation
practices under its Tribal Consultation Policy, as well as the
Commission's trust responsibilities and government-to-government
relationships with Tribes. Pol'y Statement on Consultation with
Indian Tribes in Comm'n Procs., Order No. 635, 68 FR 46452 (Sept. 5,
2033), 104 FERC ] 61,108 (2003), revised, Order No. 863, 84 FR 56940
(Oct. 24, 2019) 169 FERC ] 61,036 (2019). The policy statement is
codified at 18 CFR 2.1c (2023). These activities do not depend on
whether Tribal members are ``affected landowners.''
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157. While there are numerous requests for larger geographic bounds
to be used in the definition, we decline to modify the definition in
this manner. Commenters suggest such a modification is necessary to
ensure a broader group of stakeholders who may be impacted by a
proposed project are aware of and have an opportunity to share their
views on the proposal. We note, however, that the applicant must also
notify all landowners with a residence within a quarter mile of the
edge of the construction right-of-way under the notification
requirements in Sec. 50.4(c)(1). Moreover, stakeholders do not need to
be an affected landowner or live in a residence within a quarter mile
of the proposed site to participate in the Commission's proceedings.
Under the definition of ``stakeholder'' in Sec. 50.1, any interested
entity or person may file comments as a stakeholder and participate in
the Commission's pre-filing and application processes. We believe that
the existing definition of ``affected landowners'' and existing quarter
mile notification requirement provides individuals with appropriate
notification of a proposed project to allow an opportunity to
participate in Commission proceedings.
158. Although some commenters argue that the definition of affected
landowners should include landowners who may be impacted by visual or
other project effects, the geographic extent of impacts will vary by
region and project, and it is therefore difficult to identify a bright-
line definition that could be used by an applicant to identify
landowners who may experience visual impacts shortly after the
commencement of the pre-filing process (when initial notifications to
affected landowners must occur). Proposed transmission projects will be
subject to NEPA, and the environmental effects of a project (including
visual impacts) will be analyzed and addressed through the NEPA
process. The NEPA and FPA processes include opportunities for
landowners and other stakeholders to participate in the review process
and comment on anticipated effects of a project, including visual
impacts.
2. Section 50.3--Filing and Formatting Requirements
159. Section 50.3 establishes the filing and formatting
requirements for submissions in the Commission's pre-filing and
application processes. In the NOPR, the Commission proposed 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, the
Commission proposed that applicants only be required to make these
submissions in electronic format. We received no comments regarding
this proposed change. This final rule adopts Sec. 50.3 as proposed.
[[Page 46702]]
3. Section 50.4--Stakeholder Participation
a. Project Participation Plan
i. NOPR Proposal
160. The Commission explained in the NOPR that 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 about
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. In the NOPR, the Commission proposed to
revise Sec. 50.4(a)(1) to incorporate minor clarifying language and
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 proposed to require an
applicant to develop and file an Environmental Justice Public
Engagement Plan as part of its Project Participation Plan under Sec.
50.4(a) early in the pre-filing process.\252\
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\252\ See discussion supra Part II.C.
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ii. Comments
161. Arizona Game and Fish recommends that Sec. 50.4's Project
Participation Plan include a requirement for applicants to consult or
coordinate with specific entities, such as State wildlife or natural
resource agencies.\253\ Maryland Commission urges that county and
municipal governments affected by a proposed transmission line be given
the opportunity to participate fully in the Commission's proceeding and
provide recommendations.\254\
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\253\ Arizona Game and Fish Comments at 2-3.
\254\ Maryland Commission Comments at 8.
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162. The Yurok Tribe requests that the Commission require
applicants to develop a Tribal Participation Engagement Plan in the
pre-filing process, similar to the Environmental Justice Public
Engagement Plan.\255\
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\255\ Yurok Tribe Comments at 27-28.
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iii. Commission Determination
163. We adopt the NOPR proposal to revise the Project Participation
Plan requirements to incorporate minor clarifications, specify that an
applicant's website must include an interactive mapping component, and
include an Environmental Justice Public Engagement Plan and a Tribal
Engagement Plan.
164. Regarding requests to include coordination and consultation
requirements for State, county and local agencies or governments in the
Project Participation Plan, we do not believe such changes are needed.
As further discussed below, the Sec. 50.4(c) project notification
requirements adopted in this final rule extend to, among others,
permitting entities and other local, State, and Federal governments and
agencies involved in the project, which include the entities that
Arizona Game and Fish and Maryland Commission suggest. The project
notification requirements inform recipients how to participate in the
Commission's proceeding, including opportunities to provide
recommendations to the Commission and how to contact the applicant.
Local agencies and governments are typically included on project
stakeholder mailing lists, as they are stakeholders as defined by Sec.
50.1, who receive Commission notices regarding opportunities to submit
comments, attend meetings and site visits, and participate in the pre-
filing and application phases; and we encourage their participation.
The Commission will consider comments submitted by any State, county,
or local agencies during the processing of an application.
165. We adopt the Yurok Tribe's suggestion to require applicants to
address outreach targeted to Indian Tribes, similar to the requirement
to include an Environmental Justice Public Engagement Plan in an
applicant's Project Participation Plan. Requiring applicants to develop
a plan to identify and engage Tribal communities will facilitate the
development of the record, including the Tribal resources resource
report as discussed below, which the Commission needs to assess impacts
on Indian Tribes. Therefore, new Sec. 50.4(a)(5) requires an applicant
to include a Tribal Engagement Plan as a component of the Project
Participation Plan that addresses all outreach that is targeted to
identified Tribes, including a summary of comments from potentially
affected Tribes in previous outreach, a description of planned Tribal
outreach activities, and a description of how the applicant will engage
Tribes about potential mitigation measures.\256\
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\256\ We note that this new provision of the Project
Participation Plan does not affect and is separate from the
Commission's consultation practices under its Tribal Consultation
Policy, as well as existing trust responsibilities and government-
to-government relationships with Tribes. Order No. 635, 104 FERC ]
61,108, revised, Order No. 863, 169 FERC ] 61,036. The policy
statement is codified at 18 CFR 2.1c (2023).
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b. Project Notification Requirements
i. NOPR Proposal
166. Section 50.4(c) sets forth the project notification
requirements for applicants. Section 50.4(c)(1) requires applicants to
distribute, by mail and newspaper publication, project notifications
within specified time periods, first, following commencement of the
pre-filing process and, second, after 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. In the NOPR, the Commission proposed to revise Sec.
50.4(c)(1) for clarity and to ensure that applicants provide
notification of the proposed project to all interested individuals and
organizations. The NOPR also sought comment on whether a quarter-mile
limit is sufficient and, if not, what geographic distance should be
used and why.
167. Section 50.4(c)(2)(i) describes the required contents of the
Pre-filing Notification. For clarity, in the NOPR, the Commission
proposed organizational changes in the regulations to distinguish the
requirements that pertain to any Pre-filing Notification that is sent
by mail or published in a newspaper (proposed Sec. 50.4(c)(2)(i)) from
the requirements that pertain to any Pre-filing Notification that is
sent by mail specifically to an affected landowner (proposed Sec.
50.4(c)(2)(ii)).
168. The Commission in the NOPR proposed to add a requirement that
any Pre-filing Notification 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). The Commission also proposed
in the NOPR to require that any Pre-filing Notification 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.
169. In the NOPR, the Commission explained that it expects
applicants to make a good faith effort to ensure that individuals and
organizations entitled to receive project notifications can comprehend
the contents of such notifications. Accordingly, the NOPR
[[Page 46703]]
directed applicants to consider the need for project notifications in
languages other than English as part of the Environmental Justice
Public Engagement Plan, as described above. The NOPR also sought
comment on what methods of notification beyond mail and newspaper
publication might be utilized in order to effectively reach the largest
possible number of stakeholders.
ii. Comments
170. Public Interest Organizations and Niskanen suggest that the
Commission require the two applicant project notifications in Sec.
50.4(c) to include information on how to become an intervenor in a
Commission proceeding and the consequences of failing to intervene,
namely, lacking standing to petition for rehearing and pursue judicial
review of an order issued by the Commission.\257\ Public Interest
Organizations also request that Sec. 50.4(c)(2)(iii) of the
Commission's regulations be modified to require inclusion of the
Landowner Bill of Rights in the Application Notification required under
Sec. 50.4(c)(1)(i)(B),\258\ and further urge the Commission to
consider changes to Sec. 50.4(c)(2)(i) to require that the pre-filing
notice clearly state how affected landowners and other stakeholders can
participate in the pre-filing process in order to make the communities
feel heard, support the applicant in meeting landowner needs, and
reduce legal risks.\259\
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\257\ Public Interest Organizations Comments at 18; Niskanen
Comments at 17-18.
\258\ Public Interest Organizations Comments at 32 and 38.
\259\ Id. at 13-14.
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171. The existing regulations in Sec. 50.4(c)(1)(ii) require
applicants to publish a notification of the pre-filing request and
application filings in newspapers of general circulation. Some
commenters suggest that the Commission modify this requirement to
include other methods of notice, such as social media, popular internet
sites, local digital newspapers, online-only publications that serve a
local interest, neighborhood listservs and community web pages, utility
web pages, and including a QR code on notices that directs the reader
to an appropriate web page.\260\ CLF and EDF encourage requiring the
notices be posted in a range of locations in the community (e.g.,
churches, mosques, temples, community centers, public parks, post
offices, and schools) where transmission projects are proposed.\261\
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\260\ CLF Comments at 7; ELCON Comments at 4; Michigan PSC
Comments at 10; SEIA Comments at 11; Los Angeles DWP Comments at 5.
\261\ CLF comments at 7; EDF Comments at 12.
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172. Public Interest Organizations recommend that the Commission's
newspaper notification requirements in Sec. 50.4(c)(2)(i)(B) be
modified to include the website address for the Commission's pamphlet
Electric Transmission Facilities Permit Process.\262\ Niskanen states
that the Commission should create accessible online and paper versions
of the pamphlet, written in layperson's terms and should include: the
scope of the Commission's transmission siting authority; what findings
the Commission must make to approve a project; an explanation as to how
to obtain ongoing, accurate project information from the Commission;
clear contact information for the Office of Public Participation;
basic, step-by-step descriptions of the Commission's pre-filing and
application processes; and a description of how to participate in these
processes, including clear, bolded instructions on when, why, and how
to become an intervenor in the relevant proceeding.\263\
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\262\ Public Interest Organizations Comments at 33.
\263\ Niskanen Comments at 14.
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173. Impacted Landowners and SEIA request that Sec. 50.4(c)(2)
require the notices be written in plain language.\264\ Several
commenters suggest that notices be provided in multiple languages.\265\
Impacted Landowners and ACEG request that the notices contain a summary
of rights a landowner has in reference to the Federal eminent domain
laws that would be applicable, instead of just the State laws proposed
for reference in the NOPR.\266\
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\264\ Impacted Landowners Comments at 23; SEIA Comments at 11.
\265\ SEIA Comments at 11; NESCOE Comments at 28-29; Impacted
Landowners Comments at 23; Public Interest Organizations Comments at
30.
\266\ Impacted Landowners Comments at 23; ACEG Comments at 17-
18.
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174. Public Interest Organizations and the Yurok Tribe state that
the Commission should develop standardized language that all applicants
must include in each notice under Sec. 50.4(c) that clearly explains
the Commission's processes, all necessary deadlines, and the purpose
and consequences of intervening or seeking rehearing.\267\ Public
Interest Organizations and the Yurok Tribe also suggest that these
standard notices explain the roles of the Commission's Office of Public
Participation, Tribal Liaison, and the Environmental Justice
Liaison,\268\ and how to contact each of them.\269\ Finally, Public
Interest Organizations ask that the Commission revise its standard
notice to clarify the different ways interested persons may participate
in the pre-filing process, in which restrictions on off-the-record (ex
parte) communications do not apply.
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\267\ Public Interest Organizations Comments at 17-18; Yurok
Tribe Comments at 25.
\268\ Public Interest Organizations recommend that the
Commission establish Environmental Justice Liaisons as non-
decisional staff within the Office of Public Participation. Public
Interest Organizations Comments at 89-90. While the Commission has a
Senior Counsel for Environmental Justice and Equity and an
Environmental Justice and Equity Group within the Office of General
Counsel, it does not currently have an Environmental Justice
Liaison.
\269\ Public Interest Organizations Comments at 30; Yurok Tribe
Comments at 26.
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175. Public Interest Organizations and the Yurok Tribe suggest that
the Commission change its requirement under Sec. 50.4(c)(1)(i)(A) for
mailing notification of the pre-filing process. Specifically, they ask
that the Pre-filing Notifications be mailed within 3 business days
after the Director of the Commission's Office of Energy Projects
notifies the applicant of the commencement of the pre-filing process,
instead of within 14 days as currently required.\270\ The Yurok Tribe
states that there is no justification for the existing 14-day period
and that Tribes and stakeholders should be given as much time as
possible to prepare and participate through an earlier notification.
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\270\ Public Interest Organizations Comments at 28-29; Yurok
Tribe Comments at 26.
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176. CLF and NESCOE assert that not all residents own the property
in which they reside and request that project notifications under Sec.
50.4(c)(1) be sent to residents (e.g., renters/lessees) in addition to
the landowners.\271\
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\271\ CLF Comments at 6-7; NESCOE Comments at 28.
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177. The Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe state that
Tribes should be included in the Stakeholder Participation section of
the proposed regulations regardless of whether the Tribes are already
involved in a project and should be addressed separately from, or as a
required element of, the Environmental Justice Public Engagement
Plan.\272\ Specifically, the Tribes, as well as the Yurok Tribe, state
that proposed Sec. 50.4(c)(1) appears to limit the requirement to
notify Tribes to those who are already involved in a project, and they
suggest that the Commission should amend its regulations to require
that project
[[Page 46704]]
notifications are sent to all Tribes with ancestral or current-day
lands that may experience impacts from the project.\273\
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\272\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 2.
\273\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 3; Yurok Tribe Comments at 26.
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178. Conversely, ClearPath suggests that Sec. 50.4(c)(1) should
remove the word, ``all,'' which immediately precedes the entities that
an applicant is required to notify, asserting that requiring applicants
to notify ``all'' listed entities would put the applicant at risk for
unnecessary litigation and may incur unnecessary delay.\274\ Similarly,
Niskanen suggests removing the word ``any'' from the Sec. 50.4(c)(1)
requirement that applicants notify ``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 (emphasis added).'' \275\ Niskanen argues that
requiring applicants to notify ``any'' individual or organization that
has merely expressed an interest in a proposed project may invite
protracted legal challenges to any given project.\276\ Niskanen also
asserts that the Commission should be responsible for ensuring that all
stakeholders are properly accounted for and sent notice through the
applicant, and should create an accountability mechanism for applicants
to follow up on undeliverable notifications.\277\
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\274\ ClearPath Comments at 6.
\275\ Niskanen Comments at 12.
\276\ Id.
\277\ Id. at 13.
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179. ACP and ACEG question how the Commission will consider
notification requirements in the instances of route changes,
particularly ones that occur relatively late in the Commission's
proceeding.\278\ ACP states that applicants would have complied with
the Applicant Code of Conduct and conducted early outreach, and,
therefore, should not be required to restart the notice and comment
periods in instances of reroutes. ACEG suggests notifying landowners
along alternative routes earlier in the process or allowing for an
expedited notice and comment process if newly impacted parties are
identified.
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\278\ ACP Comments at 14; ACEG Comments at 15.
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iii. Commission Determination
180. To support the Commission's good faith efforts determinations
under the IIJA's amendment to section 216(e)(1) and make needed
clarifications to the Commission's existing project notification
requirements under Sec. 50.4(c), we adopt the NOPR proposal, with
modifications. Specifically, we revise Sec. 50.4(c) to address
confusion over the use of the terms ``notice'' and ``notification.'' We
also revise Sec. 50.4(c)(1)(ii) to expand newspaper publication
requirements to reach a broader audience and revise Sec.
50.4(c)(2)(i)(B) to require applicants to include the website address
for the Commission's pamphlet Electric Transmission Facilities Permit
Process in newspaper publications to improve accessibility of
information regarding the Commission's processes. We revise Sec.
50.4(c)(1)(i)(C) to include a new requirement for applicants to mail
project notifications in other languages under certain circumstances.
Finally, to reflect that we are not adopting the NOPR's proposal to
allow simultaneous processing, we adjust the required contents of the
participation notification concerning information about State siting
proceeding(s) in Sec. 50.4(c)(2)(i)(H).
181. As an initial matter, we recognize that Sec. 50.4(c)'s
interchangeable and intermittent use of ``notice'' and ``notification''
may have created confusion for commenters, some of whom conflated Sec.
50.4(c)'s notification requirements for applicants with the
Commission's notice requirements as described in Sec. 50.9.
Accordingly, we make minor consistency edits throughout Sec. 50.4(c)
to consistently use the term ``notification'' to apply exclusively to
applicants' obligation to provide certain information, and the term
``notice'' to apply exclusively to Commission-issued notices.
Additionally, we clarify which provisions in Sec. 50.4(c) apply to
Pre-filing Notifications versus Application Notifications.
182. We decline commenters' requests to revise Sec. 50.4(c) to
require additional information in Applicant Notifications concerning
intervening in Commission proceedings. We find that the proposed
revisions to Sec. 50.4(c), as modified in this final rule, will
adequately inform those affected landowners and other stakeholders
interested in becoming parties to a Commission proceeding of the
Commission's processes and timing for filing motions to intervene.
Although there is no intervention period during the pre-filing process,
as no application is before the Commission, the regulations in Sec.
50.4(c)(2)(i)(G) already require an applicant's Pre-filing
Notifications to include information explaining the Commission's pre-
filing and application processes and when and how to intervene in
application proceedings. Following the commencement of the pre-filing
process, applicants will be required under Sec. 50.4(c)(2)(ii)(B)--as
adopted herein--to include a copy of the Landowner Bill of Rights,
which notifies recipients of their right to intervene in any open
Commission proceeding, within the Pre-filing Notification mailed to
affected landowners.
183. We decline Public Interest Organizations' request to require
that the Landowner Bill of Rights be provided in the Application
Notification required by Sec. 50.4(c)(1)(i)(B) to be distributed
within 3 business days after the Commission publishes notice of the
application under Sec. 50.9. As discussed above, under proposed Sec.
50.4(c)(2)(ii)(B), as adopted herein, the Landowner Bill of Rights must
be included in an applicant's mailed Pre-filing Notification. Proposed
Sec. 50.4(c)(3) also requires applicants to provide the Landowner Bill
of Rights in instances where affected landowners are identified after
the initial notifications are mailed. Therefore, we find that all
affected landowners will be provided a copy of the Landowner Bill of
Rights and, as such, it is not necessary to provide it again with the
Application Notification.
184. We agree with commenters' recommendations that the Commission
include additional requirements in Sec. 50.4(c) for the publication of
notifications in media beyond newspapers of general circulation. There
are accessibility limitations inherent in relying solely on any single
media platform, whether print publications or electronic, for
notification of Commission proceedings, and no single media platform is
reasonably assured of reaching a general audience across varying
geographical locations. Therefore, we revise Sec. 50.4(c)(1)(ii) to
expand the publication requirements for applicant notifications beyond
newspaper print publications. Specifically, we require that in addition
to newspaper print publications, applicant notifications be published
in other online or hard copy periodicals of general circulation serving
the affected area, as appropriate. These notifications must also be
submitted to any available county and municipal government online
bulletin boards and other similar community resources.
185. We also agree with Public Interest Organizations that the
applicant's Pre-filing Notifications should include the website address
for the Commission's Electric Transmission Facilities Permit Process
pamphlet. Thus, we revise Sec. 50.4(c)(2)(i)(B) to adopt this
requirement. However, we decline at this time to adopt Niskanen's
recommendations to include certain information in the pamphlet. The
[[Page 46705]]
pamphlet will be updated to reflect the requirements of this final rule
and will be posted to the Commission's public website when available.
186. We agree with Impacted Landowners and SEIA that applicant
notifications should be written to be readily understood by the public.
We also agree with commenters that notifications should be provided in
multiple languages. Therefore, we add a new provision in Sec.
50.4(c)(1)(i)(C) to require applicants to mail project notifications in
languages other than English under certain circumstances. Our approach
is intended to ensure that applicants provide meaningful notification
to people with limited English proficiency who are affected landowners
or landowners within a quarter mile of the right-of-way.
187. Under this new notification requirement in Sec.
50.4(c)(1)(i)(C), applicants may be required to include written
translations of the applicant's notifications to affected landowners
and landowners with residences located within a quarter mile from the
edge of the construction right-of-way for a proposed project. To
determine whether written translations are required, applicants must
identify the landowners' census block groups, ascertain whether any of
the census block groups include people with limited English
proficiency, and, for each census block group, identify the languages
spoken by people with limited English proficiency. For each language
identified in the census block group that accounts for five percent of
households or 1,000 persons,\279\ whichever is less, applicants must
include written translation of the applicant's notifications with the
applicant's mailed notifications to all landowners entitled to
notification within that census block group. The U.S. Census American
Community Survey's 5-year estimates include the information needed to
identify the number of limited English proficiency households, similar
to the information collected for identifying environmental justice
communities.
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\279\ The number of people with limited English proficiency
within the census block group level may be estimated using the
census tract's average household size.
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188. We retain the existing requirement that any Pre-filing
Notification mailed to an affected landowner include a brief summary of
the specific rights the landowner has in proceedings under the eminent
domain laws of the relevant State. We decline commenters' suggestion
that this notification should instead include a summary of Federal
eminent domain law. Section 216(e)(1) of the FPA allows permit holders
to bring an eminent domain proceeding in the appropriate court in the
Federal district or the State in which the property is located.\280\
Section 216(e)(3) provides that the practice and procedure in any
eminent domain proceeding in Federal district court must conform as
nearly as practicable to the practice and procedure in a similar
proceeding in the applicable State court.\281\ Thus, if an eminent
domain proceeding is initiated in Federal district court, the court
will determine the appropriate procedures for individual proceedings.
For this reason, and because the rules governing eminent domain
proceedings may vary by State, we find it most helpful for the Pre-
filing Notification required to be sent by the applicant to contain a
brief summary of the landowner's rights under the eminent domain laws
of the relevant State.
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\280\ 16 U.S.C. 824p(e)(1).
\281\ Id. 824p(e)(3).
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189. We decline commenters' requests to adopt standardized language
in applicant notifications under Sec. 50.4(c). Commission-issued
notices in the pre-filing and application review processes will convey
standardized information about the Commission's processes and identify
applicable deadlines for comments and intervention. In addition, much
of the information that Public Interest Organizations request be
included in the standard notifications will be addressed via guidance
or informational brochures, like in the Electric Transmission
Facilities Permit Process pamphlet that applicants must provide with
their notification of commencing the pre-filing process.
190. We also note that Commission notices typically explain the
role of and provide contact information for the Office of Public
Participation, which can be a helpful resource for stakeholders who
need assistance understanding how to participate in Commission matters,
including stakeholders with environmental justice concerns. In
addition, Commission staff issue separate letters to engage Indian
Tribes, which typically contain the contact information for the
Commission's Tribal Liaison, project manager, and assigned project
archaeologist who will be most familiar with the project and able to
address Tribal questions. These Commission notices and letters
sufficiently provide landowners, Tribes, and stakeholders with
opportunities and support for engagement.
191. We decline Public Interest Organizations' and the Yurok
Tribe's suggestions to modify Sec. 50.4(c)'s timing requirements with
respect to mailing project notifications. The Commission carefully
considered the timing and coordination for each notification in the
Order No. 689 rulemaking proceeding and proposed no changes to the
deadline for applicants to mail required notifications in the NOPR. We
continue to find no changes are necessary. The Director's notice under
Sec. 50.5(d) commences the pre-filing process for a project and
triggers numerous additional applicant requirements (e.g., finalizing a
Project Participation Plan, refining the mailing list for the Pre-
filing Notification, finalizing a contract with the selected third-
party contractor, and notifying permitting entities). Given the
numerous obligations triggered by the commencement of the pre-filing
process, we find it appropriate to allow applicants 14 calendar days
from the Director's notice date to send the Pre-filing Notification. We
believe that this will result in more accurate notifications.
192. We decline CLF's and NESCOE's requests to modify Sec.
50.4(c)(1) to require that project notifications must be mailed to
``residents.'' As explained above in our discussion of the definition
of ``affected landowner,'' we find that there are insufficient means to
readily identify residents (e.g., renters/lessees), particularly across
potentially hundreds of miles of transmission line. Accordingly, we
will continue to require notifications based on the landowner
identified in tax records. However, under Sec. 50.4(c)(1) as adopted
herein, residents who are not identified in tax records may express
interest in a project to be added to the applicant's mailing list as
stakeholders so that they can receive project notifications.
193. We agree with the Chickahominy Indian Tribe, Nansemond Indian
Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe, as
well as the Yurok Tribe, that applicants should include Tribes whose
ancestral or current-day lands may be affected by a project in their
required notifications, regardless of whether the Tribes are already
involved in a project. Within the notification requirements of Sec.
50.4(c)(1), we adopt a minor revision to the placement of ``Indian
Tribe'' within the list of entities to be notified to remove
applicability of the qualifier ``involved in the project'' to Indian
Tribes. With this modification, applicants must notify Indian Tribes
regardless of any prior involvement in the project.
194. We disagree with ClearPath's and Niskanen's recommendations to
modify
[[Page 46706]]
Sec. 50.4(c)(1) to remove reference to the terms ``all'' and ``any,''
respectively. Although Sec. 50.4(c)(1) requires the applicant to make
a good faith effort to notify all listed entities,\282\ it is generally
understood that project mailing lists will evolve throughout the pre-
filing process as additional entities learn about a project and express
interest. During the pre-filing process, we expect applicants to make
all reasonable efforts to ensure that interested stakeholders have been
made aware of the proposed project. In addition, Sec. 50.4(c)(4), as
proposed in the NOPR and adopted herein, requires applicants to make
reasonable attempts to find the correct address and re-send the
notification if it is returned as undeliverable.
---------------------------------------------------------------------------
\282\ 18 CFR 50.4(c)(1).
---------------------------------------------------------------------------
195. Regarding questions from ACP and ACEG about how the Commission
will consider notification requirements in the instances of late route
changes, we note that Sec. 50.4(c)(3), as proposed in the NOPR and
adopted herein, provides that if, for any reason, a person or entity
entitled to receive these project notifications has not yet been
identified when the notifications are sent or published, the applicant
must provide the required information at the time the person or entity
is identified. This provision applies where new landowners are
identified as ``affected landowners'' subject to route changes. The
Commission addresses reopening of comment periods due to reroutes on a
project-specific basis, generally to account for numerous factors
(e.g., if new landowners are involved in the reroute, whether those
landowners have been involved in the project to date, whether
landowners requested the reroute on their property, where in the
process a project is, and upcoming opportunities for landowner input).
The Commission will issue revised notices with applicable comment
periods when appropriate for a given reroute on a project.
c. Landowner Bill of Rights
i. NOPR Proposal
196. As part of the Project Notification requirements, in the NOPR,
the Commission proposed to add a requirement that any Pre-filing
Notification 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). The NOPR sought comment on a draft version of the
Landowner Bill of Rights provided in the Appendix to the NOPR. The
Commission explained that requiring the applicant to provide this
document 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.
ii. Comments
197. Pennsylvania Commission states that, regardless of whether
simultaneous or consecutive review processes at the State and
Commission occur, landowners are likely to be overwhelmed and confused
about where and when to participate, particularly after receiving
multiple notices for each process and, in some cases, State versions of
a Landowner Bill of Rights in addition to the Commission's.\283\ Thus,
instead of mandating mailing specifically the Commission's Landowner
Bill of Rights, Pennsylvania Commission suggests establishing the
Landowner Bill of Rights as a recommended framework and allowing
applicants to adapt and modify the Landowner Bill of Rights, with
encouraged coordination with the State, to have a single Landowner Bill
of Rights for a project.\284\
---------------------------------------------------------------------------
\283\ Pennsylvania Commission Comments at 8-10.
\284\ Id. at 9-10.
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198. Public Interest Organizations and Niskanen suggest that the
Commission amend the Landowner Bill of Rights to require applicants to
negotiate with landowners in good faith early in the permitting process
as a prerequisite for receiving eminent domain authority.\285\ Public
Interest Organizations also ask that the Commission add language to the
Landowner Bill of Rights stating that the applicant may also not
misrepresent the status of discussions or negotiations between itself
and landowners or any other party and must communicate respectfully,
avoiding harassing, coercive, manipulative, or intimidating
communications or high-pressure tactics.\286\
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\285\ Public Interest Organizations Comments at 40; Niskanen
Comments at 15.
\286\ Public Interest Organizations Comments at 40.
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199. Farm Bureaus note that the Landowner Bill of Rights does not
require applicants to provide any information, but instead informs
landowners of the ``right to access'' certain information concerning
the applicant and project. Farm Bureaus state that the Landowner Bill
of Rights should require the applicant to furnish this information
rather than burden landowners with seeking it themselves.\287\
---------------------------------------------------------------------------
\287\ Farm Bureaus Comments at 10.
---------------------------------------------------------------------------
200. In addition, several commenters recommend changes to the
Landowner Bill of Rights to better inform landowners about specific
rights. Specifically, Public Interest Organizations and NESCOE suggest
adding language explaining why compensation may be required, what
eminent domain is, and how the Federal eminent domain process
works.\288\ Impacted Landowners request the Commission add plain
language to the Landowner Bill of Rights explaining that landowners are
not required to negotiate easement agreements written by transmission
line owners without advice from counsel.\289\ Public Interest
Organizations and Farm Bureaus ask that the Landowner Bill of Rights
clarify the difference between participation in the Commission's pre-
filing versus application phase and how landowners can participate in
each process.\290\
---------------------------------------------------------------------------
\288\ Public Interest Organizations Comments at 39; NESCOE
Comments at 29-30.
\289\ Impacted Landowners Comments at 22-23.
\290\ Public Interest Organizations Comments at 40; Farm Bureaus
Comments at 10.
---------------------------------------------------------------------------
201. Public Interest Organizations and Niskanen ask that the
Commission grant intervenor status to all landowners that comment in a
proceeding or, in the alternative, explain in the Landowner Bill of
Rights that affected landowners lose their right to challenge any
Commission order or authorization of the project if they do not
intervene in the Commission docket and become a party to the
proceeding.\291\
---------------------------------------------------------------------------
\291\ Public Interest Organizations Comments at 33 and 41;
Niskanen Comments at 15-16.
---------------------------------------------------------------------------
iii. Commission Determination
202. In this final rule, we adopt the NOPR proposal to require
applicants to provide a copy of the Commission's Landowner Bill of
Rights to affected landowners with their Pre-filing Notification. A
final version of the Landowner Bill of Rights is attached to this final
rule, with no changes from the draft version included in the NOPR
except for the addition of a toll-free telephone number for the
Commission's Office of Public Participation, and we will include an
electronic copy on the Commission's public website for reference.
203. We decline commenter suggestions to afford applicants
flexibility to modify the Landowner Bill of Rights. The purpose of the
Landowner Bill of Rights is to ensure that affected landowners are
informed in a consistent manner of their rights in dealings with the
applicant and in
[[Page 46707]]
Commission proceedings. Allowing applicants to develop their own
document, as the Pennsylvania Commission suggests, could produce the
uncertainty and confusion that the Landowner Bill of Rights seeks to
avoid.
204. We decline to amend the Landowner Bill of Rights to include
requirements for applicants in their negotiations and interactions with
landowners because we find such revisions unnecessary. The Landowner
Bill of Rights is intended to inform landowners, in plain language,
about landowner rights and about actions landowners can take in a
Commission proceeding, but it does not establish requirements for
applicants to follow. Refraining from certain misconduct in
communications with landowners, avoiding misrepresenting the status of
discussions or negotiations, and avoiding harassing, coercive,
manipulative, or intimidating communications are factors the Commission
may consider as part of its good faith efforts determinations.
205. We disagree with Farm Bureaus' assumption that the Landowner
Bill of Rights requires landowners to seek information. The Pre-filing
and Application Notification requirements in Sec. 50.4(c) require the
applicant to provide information to landowners, including about the
location and schedule of the project and their rights. We believe that
these requirements afford landowners ready access to central
information about a project.
206. We decline to modify the Landowner Bill of Rights to
incorporate a summary of the eminent domain process. The eminent domain
process may vary State to State and including generic language in the
Landowner Bill of Rights that would be applicable across all States
would be less useful than the summary of the eminent domain laws of the
relevant State that applicants must include in the Pre-filing
Notification that is sent by mail to affected landowners under Sec.
50.4(c)(2)(ii)(C). Further, the Landowner Bill of Rights explains that
landowners have the right to receive compensation if their land is
necessary for construction of a proposed project and that the amount of
compensation would be determined through a negotiated easement
agreement or through an eminent domain proceeding in the appropriate
Federal or State court.
207. With respect to commenters' request that the Commission
include language about landowners' rights in negotiating easements and
hiring legal counsel, we note that the Landowner Bill of Rights already
informs landowners of their rights to negotiate easement agreements,
hire legal counsel, and hire their own appraiser or other professional
to assist in any easement negotiations. Therefore, we find no need to
modify the Landowner Bill of Rights on these topics.
208. We also decline to include provisions distinguishing the pre-
filing and application review processes in the Landowner Bill of
Rights. With the exception of filing a motion to intervene, which is
clearly identified as an activity that may only occur after an
application is filed, none of the other rights listed in the Landowner
Bill of Rights are contingent on the project's phase.
209. Finally, we decline to grant intervenor status to all
landowners that comment in a proceeding. A landowner may not wish to
intervene or become a party to the proceeding. Additionally, we find
that our project notification requirements at Sec. 50.4(c)(2)(i),
which require applicants to provide access to the Commission's Electric
Transmission Facilities Permit Process pamphlet and information
explaining when and how to intervene in a proceeding, will afford
sufficient information about the steps to participate in a Commission
proceeding and become an intervenor.
d. Office of Public Participation Involvement
i. NOPR Proposal
210. In the NOPR, the Commission did not propose any changes to the
role, function, or duties of the Commission's Office of Public
Participation.
ii. Comments
211. Environmental Law and Policy Center and CLF ask that the
Commission direct its Office of Public Participation, Tribal Liaison,
and Environmental Justice Liaison \292\ to develop best practices for
facilitating stakeholder engagement that, at a minimum, would ensure
notification to environmental justice communities affected by proposed
projects; provide meaningful opportunities to participate, including
opportunities for the public to provide written and oral comments to
the Commission; provide resources and technical assistance, including
plain language summaries and translated materials as needed; and
provide environmental justice engagement recommendations on a project-
by-project basis that are tailored based on affected communities and
anticipated environmental justice impacts.\293\ CLF also suggests that
applicants be required to consult with the Office of Public
Participation when developing both the Environmental Justice Public
Engagement Plans and the Environmental justice resource report to help
ensure that applicants adequately consider any impacts on environmental
justice communities and conduct comprehensive outreach to environmental
justice communities.\294\
---------------------------------------------------------------------------
\292\ As explained above, Environmental Justice Liaison is a
position that does not currently exist at the Commission. See supra
note 268.
\293\ Environmental Law and Policy Center Comments at 5; CLF
Comments at 11.
\294\ CLF Comments at 7-8.
---------------------------------------------------------------------------
212. Public Interest Organizations recommend that the Office of
Public Participation engage with any stakeholder that submits comments
in a State proceeding to explain the Commission's pre-filing process
and siting process.\295\ Additionally, Public Interest Organizations
and the Yurok Tribe request that the Commission require applicants to
file with the Commission any comments received in State-level
proceedings.\296\ The Yurok Tribe also suggests that the Commission
require applicants to provide the State commissions with copies of any
comments submitted in the Commission's proceeding.
---------------------------------------------------------------------------
\295\ Public Interest Organizations Comments at 15.
\296\ Id. at 14; Yurok Tribe Comments at 27.
---------------------------------------------------------------------------
iii. Commission Determination
213. We do not find it is necessary to have a requirement for
applicants to engage with the Office of Public Participation when
developing the Environmental Justice Public Engagement Plan or the
Environmental justice resource report. The Office of Public
Participation is able to engage with applicants regarding best
practices for stakeholder communications and outreach activities, in
general, including meaningful early engagement with potentially
affected environmental justice communities. However, the Office of
Public Participation can neither review nor comment on applicant drafts
or documents in contested proceedings.
214. With respect to the Office of Public Participation creating
best practices on environmental justice engagement, we find that the
Pre-filing and Application Notification requirements in Sec. 50.4(c)
and Project Participation Plan requirements in Sec. 50.4(a), which
would include the Environmental Justice Public Engagement Plan filing
requirement we are adopting in this final rule, afford adequate
notification of key information about the project, information about
opportunities to participate in the pre-
[[Page 46708]]
filing process and any Commission proceeding, and address how
applicants plan to accommodate people with limited English proficiency.
These notifications and plans are tailored to the specific project and
unique circumstances of any environmental justice communities that may
be affected by a project and are the more appropriate means for
Commission staff to provide feedback or support to an applicant in
developing outreach efforts.
215. We decline to adopt commenters' recommendations requiring the
Office of Public Participation's involvement in State-level
proceedings. The Office of Public Participation's role is to support
stakeholders that have expressed interest in engaging in the
Commission's processes, not other agency or State processes.
Additionally, requiring the Office of Public Participation to engage
with all stakeholders that provide comments in a State proceeding would
be infeasible. Project notifications required in Sec. 50.4(c) and the
Project Participation Plan required in Sec. 50.4(a) ensure that
stakeholders have sufficient notification of the proposed project and
opportunities to provide their views on the project during the pre-
filing and application review processes.
216. We also decline to require that an applicant file with the
Commission the comments submitted in a State-level proceeding or file
with the relevant State commissions comments placed in the Commission's
record. We do not presume that commenters intend to have their comment
filed with the Federal and State entities without their permission.
e. Tribal Consultation Policy
i. NOPR Proposal
217. In the NOPR, the Commission did not propose any changes to the
Commission's Tribal consultation policy.\297\
---------------------------------------------------------------------------
\297\ Order No. 635, 104 FERC ] 61,108, revised, Order No. 863,
169 FERC ] 61,036. The policy statement is codified at 18 CFR 2.1c
(2023).
---------------------------------------------------------------------------
ii. Comments
218. The Yurok Tribe and Public Interest Organizations state that
the Commission must adopt a stronger Tribal consultation policy.\298\
The Yurok Tribe also believes that the Commission should provide
dedicated resources within the Office of Public Participation to
support consultation with and enable participation by Tribes. The Yurok
Tribe and Public Interest Organizations suggest that the Commission
provide funding to support Tribal participation and intervenor
compensation.\299\ The Yurok Tribe notes that the Inflation Reduction
Act allocated $100 million to the Commission to assist in environmental
reviews, including stakeholder engagement, and that these funds should
go to support Tribal participation.
---------------------------------------------------------------------------
\298\ Yurok Tribe Comments at 6-7 and 14-15; Public Interest
Organizations Comments at 55-58.
\299\ Yurok Tribe Comments at 19-20 and 37; Public Interest
Organizations Comments at 58-60.
---------------------------------------------------------------------------
219. To more fully meet the Commission's trust obligations,
commenters urge the Commission to create a Tribal Advisory Committee to
advise on all Commission interactions with Tribes and to recommend
changes to Commission policies and establish a better relationship with
Tribes.\300\ Similarly, these commenters ask that the Commission
clarify and revise the role of the Commission's Tribal Liaison to be
non-decisional, help facilitate the process to receive Tribal funds,
support Tribal consultation and participation, and be located within
the Commission's Office of Public Participation.\301\
---------------------------------------------------------------------------
\300\ Yurok Tribe Comments at 20-21; Public Interest
Organizations Comments at 63-64.
\301\ Yurok Tribe Comments at 20-23; Public Interest
Organizations Comments at 60-63.
---------------------------------------------------------------------------
220. The Yurok Tribe suggests several changes to Commission Tribal
consultation practices and recommends the adoption of a new Tribal
Consultation Policy with opportunity for Tribes to review and comment
on a draft of the policy.\302\ The Yurok Tribe states that Tribes
should have an opportunity to comment on whether an action requires
consultation and be allowed to initiate consultation if the Commission
fails to begin consultation. The Yurok Tribe also recommends that
Tribes be afforded an opportunity to have a pre-meeting with Commission
staff prior to a consultation meeting to allow for clarifying
questions. After a consultation meeting, the Yurok Tribe suggests that
the Commission follow up with Tribes to confirm next steps, schedule
additional meetings, and advise the Tribe of the results of
consultation.
---------------------------------------------------------------------------
\302\ Yurok Tribe Comments at 15-17.
---------------------------------------------------------------------------
iii. Commission Determination
221. While we appreciate Public Interest Organizations' and the
Yurok Tribe's comments on the distribution of dedicated resources to
enable Tribal participation, the creation of a Tribal Advisory
Committee, the role of the Commission's Tribal Liaison, and proposed
revisions to the Commission's Tribal Consultation Policy are all
related to broader Commission consultation practices across all project
types, rather than requirements that would apply to an applicant under
FPA section 216, and are therefore beyond the scope of this final rule.
222. We also note that applicants are required to send a Pre-filing
Notification to all Indian Tribes whose interest may be affected by the
proposed project with initial project information and how to
participate in the Commission's process. Commission staff also reaches
out to potentially affected Tribes, initiates government-to-government
consultation, and opens public comment periods as part of the review
process. Tribes may use any of the available opportunities to comment
on whether an action requires consultation and may request to initiate
consultation at any time. As such, we find no changes to the
Commission's regulations are necessary.
4. Section 50.5--Pre-Filing Procedures
a. Congestion-Related Information
i. NOPR Proposal
223. 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. In the NOPR, the Commission proposed 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)).
224. 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. In the NOPR, the Commission
proposed clarifications to Sec. 50.5(e)(3) and (4) to ensure
consistency with the project notification requirements in Sec.
50.4(c). The Commission also proposed 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
FPA section 216(b)(4).\303\ Specifically, within 30 days of the notice
commencing the pre-filing process, the
[[Page 46709]]
Commission proposed 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)(9)). In addition to a draft version of Exhibit H, the
Commission also proposed to require an applicant to file additional
supporting information showing how the proposed project will reduce
capacity constraints and congestion on the transmission system, 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) and
(8)).
---------------------------------------------------------------------------
\303\ 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. 16 U.S.C. 824p(b)(4).
---------------------------------------------------------------------------
ii. Comments
225. ACEG suggests that the requirement to submit a full system
impact report early in the pre-filing process is unnecessary and
unreasonable.\304\ It argues that the system impact study can take more
than a year to complete and that the level of detail required may not
be available at the early pre-filing stage.\305\ Accordingly, ACEG
recommends that the Commission revise this requirement so that an
applicant need only provide a status report on the system impact study
during pre-filing, as opposed to the study itself.\306\ ACEG believes
this would likely achieve the Commission's goal of ensuring appropriate
consideration of the proposed project's impact on the safety and
reliability of the transmission system while also avoiding unnecessary
delays.\307\ Additionally, ACEG states that the proposed requirements
that an applicant file, early in the pre-filing process, a full system
impact study report (Sec. 50.5(e)(8)) and a draft version of Exhibit H
(Sec. 50.5(e)(9)) are duplicative. ACEG recommends deleting paragraph
(e)(9) and specifying in paragraph (e)(8) that a status report, rather
than a full report of the system impact study, is sufficient.\308\
---------------------------------------------------------------------------
\304\ ACEG Comments at 10.
\305\ Id. at 10.
\306\ Id. at 11.
\307\ Id.
\308\ Id. at 11-12.
---------------------------------------------------------------------------
226. Likewise, Impacted Landowners state that it is unclear who is
responsible for preparing the detailed description of how the proposed
project will reduce capacity constraints and congestion on the
transmission system that, as proposed in the NOPR, would be submitted
as part of an application (proposed Exhibit H in Sec.
50.7(h)(3)).\309\ Impacted Landowners recommend that this information
be verified by independent, impartial entities with expertise in
transmission planning, such as Regional Transmission Organizations/
Independent System Operators (RTO/ISO).\310\ They urge the Commission
to ``make a clear determination of who has authority to determine these
factors [for transmission capacity and congestion determinations] and
apply them evenly across the board.'' \311\
---------------------------------------------------------------------------
\309\ Impacted Landowners Comments at 11-13.
\310\ Id. at 11-12.
\311\ Id. at 13.
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iii. Commission Determination
227. We adopt the NOPR proposal for Sec. 50.5 in this final rule,
with the following modifications in response to commenter feedback.
With regard specifically to the congestion supporting information
requirements detailed in proposed Sec. 50.5(e)(8) and (e)(9), we are
modifying the timeline associated with the submission of this
information so that applicants will have a greater degree of
flexibility as they navigate the pre-filing process.
228. We disagree with ACEG that the requirement that an applicant
submit a full system impact study report during pre-filing is
unnecessary and unreasonable. Upon entry into the Commission's pre-
filing process, we expect that most applicants will have already
completed a system impact study for the proposed project to identify
the constraints, mitigation, and transmission upgrades that will
significantly reduce transmission congestion. However, the Commission
does not intend for completion of the study report to be a barrier to
applicants that otherwise would be ready to enter into and benefit from
the pre-filing process. Therefore, applicants who have already
completed a full system impact study are required to submit the full
system impact study report at initiation of pre-filing; however,
applicants who have not completed the study report can submit a status
report of the system impact study instead of the full report.
Commission staff will review this status report and communicate with
the applicant to establish a submission deadline for the full system
impact study report during the pre-filing process.
229. Additionally, the draft version of Exhibit H is not
duplicative of the system impact study report, but rather complementary
and essential to contextualizing and verifying the report's findings.
The system impact study report contains the narrative approach to the
modeling and conclusions, while draft Exhibit H requires the actual
power flow cases utilized as inputs into the report. Draft Exhibit H
also includes system analysis data, such as model input files and the
assumptions, criteria, and guidelines upon which the models are based
and which take into consideration transmission facility loading
(planned and forecasted forced outages). Commission staff can use draft
Exhibit H data to replicate and validate the models and assumptions in
the applicant-provided system impact study report. However, as draft
Exhibit H is not useful to the Commission until the full system impact
study report is submitted, an applicant must submit draft Exhibit H
within 30 days of submission of the full system impact study report and
not within 30 days of the notice commencing the pre-filing process. The
pre-filing process will not be concluded until the full system impact
study report and draft Exhibit H is submitted and staff has had
sufficient time to review and validate the report and data.
230. In response to requests for clarification regarding which
entity may prepare information under Sec. 50.7(h)(3), we clarify that
applicants are responsible for submitting to the Commission the
requisite pre-filing materials, including the detailed description of
how the proposed project will address transmission capacity constraints
and congestion. We decline to limit the information that may be
submitted to support a finding under FPA section 216(b)(4) based upon
who prepared the information, as a wide range of information from
different sources may be relevant depending on the factual
circumstances. Commission staff will review all submitted information
and request additional information, as necessary, to ensure that any
filed application is complete and contains sufficient information for
the Commission to determine whether the proposed project will
significantly reduce transmission congestion in interstate commerce and
protects or benefits consumers, as required by FPA section 216(b)(4).
b. Regional Transmission Planning Information
i. NOPR Proposal
231. Proposed Sec. 50.5(c)(8) would require an applicant to
include in its pre-filing request a detailed description of how the
proposed project will reduce capacity constraints and congestion on the
transmission system. In addition, within 30 days of the notice
commencing the pre-filing process, proposed Sec. 50.5(e)(7)(i) would
require an applicant to submit the most recent
[[Page 46710]]
regional transmission plan for each transmission planning region that
would be crossed by the proposed project. Finally, under proposed
Exhibit H in Sec. 50.7, any application must include an analysis of
how the project will: improve system reliability over the long and
short-term; impact long-term regional transmission expansion plans;
impact congestion on the applicant's entire system and neighboring
systems; and incorporate any advanced technology design features, if
applicable.\312\
---------------------------------------------------------------------------
\312\ NOPR, 181 FERC ] 61,205 at PP 41, 45.
---------------------------------------------------------------------------
ii. Comments
232. Joint Consumer Advocates request that the Commission require
an applicant to explain in its pre-filing consultation whether an RTO
or ISO has identified the project as necessary to address a need
identified through a regional transmission planning process, arguing
that this will ensure projects submitted through the FPA section 216
process are limited to those necessary to address congestion
issues.\313\ Joint Consumer Advocates also ask the Commission to revise
Sec. 50.5(c) to require that an applicant's pre-filing request address
the proposed project's cost effectiveness (i.e., the project's benefits
and costs to the consumer).\314\
---------------------------------------------------------------------------
\313\ Joint Consumer Advocates Comments at 13.
\314\ Id. at 13.
---------------------------------------------------------------------------
233. Relatedly, EEI states that the Commission should require
applicants to demonstrate during pre-filing that the project meets a
clear need and is not duplicative of other proposed or existing
transmission projects.\315\ EEI further recommends that the Commission
consult with the relevant transmission planning entities to ensure that
the proposed project supports system reliability.\316\
---------------------------------------------------------------------------
\315\ EEI Comments at 8.
\316\ Id. at 8.
---------------------------------------------------------------------------
iii. Commission Determination
234. We adopt the NOPR proposal concerning regional transmission
planning information in Sec. 50.5(e)(7) and Sec. 50.5(c), with minor
terminology clarifications, given that the relative benefits and costs
of a project can take a variety of forms. Further, we clarify that the
requested analysis in Exhibit H in Sec. 50.7 of how the proposed
project will impact congestion on the system where it will be located
as well as neighboring systems will apply to neighboring systems only
when relevant to the individual proposed project.
235. We decline commenters' requests to require an applicant to
explain in the pre-filing consultation whether an RTO or ISO has
identified the project as necessary to address a need identified in a
regional transmission planning process. While we expect that, in many
cases, an applicant may indicate in its pre-filing submissions whether
the proposed transmission project has or has not been identified as
necessary to meet a need identified by a regional transmission planning
process, we do not find it necessary to revise the regulations to
specify that an applicant must provide this information during the
initial consultation. Additionally, Sec. 50.5(e)(7)(i) requires an
applicant to submit regional transmission plans, and this information
will likely provide insight into whether a project was deemed necessary
to meet a regional need. We further note that a proposed transmission
project may not always be identified by an RTO or ISO through its
regional transmission planning process, or included in a regional
transmission plan, such as a merchant transmission project. In such
circumstances, the applicant must nevertheless demonstrate early in the
pre-filing process how the proposed project will reduce capacity
constraints and congestion on the transmission system, as required
under Sec. 50.5(c)(8) and (e)(7).
236. We similarly decline a request to require under Sec. 50.5(c)
submission of specific information regarding the proposed project's
cost-effectiveness. Under Sec. 50.6(f), an applicant is required to
include a demonstration that the proposed facility meets each of the
statutory standards under section FPA section 216(b)(2)-(6) for the
Commission to issue a permit, including the requirement under section
216(b)(4) that a proposed project ``protects or benefits consumers.''
While evidence related to the project's cost-effectiveness would be
relevant to the Commission's consideration of the statutory standards
under FPA section 216(b), information about the relative benefits and
costs of a project could take a variety of forms. Accordingly, we
decline to modify Sec. 50.5 to require submission of particularized
information, and assessment of the adequacy of information to
demonstrate the statutory standards under section FPA 216(b) will occur
on a case-by-case basis.
237. We do not find it necessary to codify a process for consulting
with relevant transmission planning entities to ensure that a proposed
project supports system reliability. As previously stated, we agree
that determinations of an independent entity, such as an RTO or ISO,
should be afforded due weight in the Commission's assessment of whether
a particular project is needed to protect or benefit consumers.\317\
Therefore, we will consider any such independent determinations as a
factor, along with all other relevant factors, in determining whether
the statutory criteria have been met.
---------------------------------------------------------------------------
\317\ Order No. 689, 117 FERC ] 61,202 at P 44.
---------------------------------------------------------------------------
c. Existing Rights-of-Way Information
i. NOPR Proposal
238. The Commission did not propose any requirements related to
rights-of-way data or analysis under Sec. 50.5.
ii. Comments
239. Rail Electrification Council and Impacted Landowners request
that, as part of the pre-filing submittals required by Sec. 50.5,
applicants be required to provide information related to the
consideration, availability, and use of railroad rights-of-way or any
other relevant existing rights-of-way to site all or a portion of a
project.\318\
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\318\ Rail Electrification Council Comments at 9-12; Impacted
Landowners Reply Comments at 8.
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iii. Commission Determination
240. We decline to modify Sec. 50.5 to require submission of
additional information about the consideration and availability of
existing rights-of-way. An applicant is already required to identify
certain information about the use of existing-rights-of-way as part of
the resource reports that applicants must submit in draft form during
the pre-filing process. Specifically, in the Land use, recreation, and
aesthetics resource report discussed further below, applicants must
identify where construction or permanent rights-of-way will be adjacent
or overlap existing rights-of-way (proposed Sec. 380.16(l)(1)).
Additionally, in the Alternatives resource report discussed further
below, applicants must submit information on the consideration of
alternatives to the proposed project, including their relationship to
existing rights-of-way.
d. State Permitting Information
i. NOPR Proposal
241. The Commission's existing regulations in Sec. 50.5(e)(3)(iii)
require applicants to notify permitting entities \319\ and request
information on material not required by the Commission's resource
reports under Sec. 380.16 that permitting entities may require to
reach a decision on the proposed project. The NOPR proposed
[[Page 46711]]
to redesignate paragraph (e)(3)(iii) as (e)(3)(ii) but made no changes
to the substance of this existing requirement.
---------------------------------------------------------------------------
\319\ As proposed in the NOPR and adopted herein, the term
permitting entity means any Federal or State agency, Indian Tribe,
or multistate entity that is responsible for issuing separate
authorizations under Federal law that are required to construct
electric transmission facilities in a National Corridor.
---------------------------------------------------------------------------
ii. Comments
242. Joint Consumer Advocates request that applicants be required,
as part of the initial consultation meeting under Sec. 50.5(b), to
identify any differences between the filing requirements for the
Commission and applicable States, and then provide any additional
information required in the State process during the pre-filing
process.\320\
---------------------------------------------------------------------------
\320\ Joint Consumer Advocates Comments at 10-11.
---------------------------------------------------------------------------
243. Joint Consumer Advocates also request that the monthly status
reports required under Sec. 50.5(e)(11) include details on the
associated State(s) permitting proceeding(s) and that stakeholders be
allowed to review the monthly status reports and, if necessary, file
comments with the Commission.\321\ Joint Consumer Advocates believe
this would allow the Commission to determine if an applicant is fully
engaged in the State permitting proceeding.
---------------------------------------------------------------------------
\321\ Id. at 10.
---------------------------------------------------------------------------
iii. Commission Determination
244. We decline to modify Sec. 50.5 to require submission of
information required under State law. The initial consultation meeting
and pre-filing request are initial steps to enter the pre-filing
process and are intended to introduce a project to Commission staff and
ensure applicants have sufficient information or project development to
begin engaging with Commission staff. We do not find it necessary to
modify Sec. 50.5 to require submission of information that is
unnecessary for that purpose, and which may or may not be relevant to
Commission determinations under FPA section 216(b). Any entity,
including a State, may file copies of information considered in a
related State proceeding for consideration in the Commission's
proceeding.
245. Similarly, we decline to modify the monthly status report
requirements in Sec. 50.5(e)(11) because we find the requested changes
unnecessary. The monthly status reports already require applicants to
detail the applicant's project activities, agency and Tribal meetings,
and updates on the status of other required permits or authorizations.
The regulations also require that the monthly status reports be filed
with the Commission, and therefore will be available for stakeholders
to review.
5. Section 50.6--General Content of Applications
a. NOPR Proposal
246. Section 50.6 describes the information that must be provided
as part of an application for a permit under FPA section 216. In the
NOPR, the Commission proposed to revise Sec. 50.6(c) 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). The Commission also proposed 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.
247. Under existing Sec. 50.6(e), each application must also
demonstrate that one of the jurisdictional bases set forth in FPA
section 216(b)(1) applies to the proposed facilities. As discussed
above, the NOPR proposed revisions to Sec. Sec. 50.6(e)(1) and (3) to
ensure that the Commission's regulatory text tracks the IIJA's
amendments to FPA sections 216(b)(1)(A) and (C), respectively.\322\
---------------------------------------------------------------------------
\322\ Supra P 15.
---------------------------------------------------------------------------
248. In addition, existing Sec. 50.6(f) provides that each
application must demonstrate that the proposed facilities meet the
statutory criteria in FPA sections 216(b)(2) through (6), including, as
relevant here, that the proposed construction or modification is
consistent with the public interest. The NOPR did not propose any
changes to Sec. 50.6(f).
b. Comments
249. Several commenters ask the Commission to clarify how it would
determine whether the proposed facilities are consistent with the
public interest, as required by FPA section 216(b)(3).\323\ North
Carolina Commission and Staff urge the Commission to explicitly require
applicants to demonstrate, either in pre-filing or in the application,
that the proposed project serves the public interest.\324\ For example,
North Carolina Commission and Staff provide a list of public interest
criteria that, in its view, applicants should be required to
demonstrate, including that the project's expected benefits to
ratepayers are roughly commensurate with its costs; that consumers are
protected from risks of project abandonment; that the project is
consistent with system needs as demonstrated in Commission-mandated
planning processes and, if applicable, State integrated resource plans;
that the project is preferable to reasonably available alternatives
that would reduce congestion (e.g., additional generation, non-wires
alternatives, and other less-intrusive or less-costly transmission
projects); and that the project will enhance reliability.\325\
---------------------------------------------------------------------------
\323\ E.g., North Carolina Commission and Staff Comments at 12-
15; Sabin Center Comments at 2, 5; Yurok Tribe Comments at 9-13.
\324\ North Carolina Commission and Staff Comments at 13.
\325\ Id. at 14.
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250. The Yurok Tribe states that the public interest standard under
FPA section 216(b)(3) requires the Commission to consider, minimize,
and mitigate impacts on Tribal resources.\326\ The Yurok Tribe urges
the Commission to adopt a presumption that projects denied by States on
the basis of adverse Tribal impacts are not in the public
interest.\327\
---------------------------------------------------------------------------
\326\ Yurok Tribe Comments at 9-12.
\327\ Id. at 12-13.
---------------------------------------------------------------------------
251. Texas Commission states that there is no requirement that a
Federal application include a State's final order denying an
application and argues that it would be inefficient and burdensome for
the States to have to recapitulate the entirety of its reasoning for
denying an application in its comments in the Federal proceeding.
Therefore, Texas Commission requests that the Commission expressly
require that an application filed under FPA section 216(b)(1)(C)(iii)
include a copy of the State's final and non-appealable order denying
approval of the application.\328\ Further, Texas Commission requests
that the Commission adopt a policy that, upon request of a State
commission or the applicant, the record in the Commission's proceeding
include the record in the State proceeding.\329\
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\328\ Texas Commission Comments at 13.
\329\ Texas Commission Comments at 14.
---------------------------------------------------------------------------
c. Commission Determination
252. This final rule adopts the revisions to Sec. 50.6 as proposed
in the NOPR. We decline to further revise this section based on
commenters' suggestions, as discussed below.
253. Consistent with the Commission's position in Order No. 689, we
decline to adopt an exclusive list of factors or a bright-line test to
determine whether a project meets the statutory criteria for issuing a
permit in FPA sections 216(b)(2) through (6), including the requirement
to demonstrate that a proposed project is consistent with the public
interest.\330\ As the Commission explained in Order No. 689, in
reviewing a proposed project, the Commission will consider all relevant
factors presented on a case-by-case basis and balance the public
[[Page 46712]]
benefits against the potential adverse consequences. The Commission
will also conduct an independent environmental analysis of the project
as required by NEPA, including reasonable alternatives to the proposed
project. The Commission will review the proposed project and determine
if it reduces transmission congestion and if it will protect or benefit
consumers. The Commission will also consider the impact that the
proposed facility will have on the existing transmission grid and the
reliability of the system.
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\330\ Order No. 689, 117 FERC ] 61,202 at P 41.
---------------------------------------------------------------------------
254. The Commission will also consider the adverse effects the
proposed facilities will have on Tribes, landowners, and local
communities. After evaluating the entire record of the proceeding and
due consideration of the issues raised, the Commission will determine
if the proposed project meets the criteria in FPA section 216(b). The
Commission's review of a proposed project will be a flexible balancing
during which it will weigh the factors presented in the project
proceeding. The Commission will also impose appropriate conditions
necessary to mitigate adverse effects on the relevant interests from
the construction and operation of a proposed project and will approve
the project only where the public benefits to be achieved from the
project outweigh the adverse effects.
255. Regarding Texas Commission's request that an application filed
under FPA section 216(b)(1)(C)(iii) include a copy of the State's final
and non-appealable denial order, the Commission, in revised Sec.
50.6(e)(3)(iii), requires an applicant to provide evidence that a State
commission, or other entity that has the authority to approve the
siting of facilities, has denied an application. In circumstances where
a State denial triggers the Commission's jurisdiction, we expect that
most applicants would file a copy of the State's denial order as this
would likely be the best evidence that the State had denied the
applicant's siting application. If an applicant does not submit to the
Commission a copy of the State's denial order, the State may choose to
file a copy as part of its comments on the application or Commission
staff may direct the applicant to file it. Therefore, we do not believe
that the requested change to the Commission's regulations is necessary.
256. We also decline to adopt a policy that the State record be
incorporated into the record of the Commission's siting proceeding upon
a State commission's or applicant's request. To the extent that the
Commission may find certain elements of the State siting proceeding
useful in its decision-making process, it will request this
information, as needed, on a case-by-case basis. We do not believe that
incorporating the State record in its entirety into the Commission's
record as a general rule is necessary as it would require the
submission and review of information that may not be relevant.
6. Section 50.7--Application Exhibits
a. NOPR Proposal
257. 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. In the NOPR, the Commission proposed 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)).
258. The Commission also proposed revisions to Sec. 50.7(h), which
describes the requirements for Exhibit H--System analysis data.
Specifically, in the NOPR, the Commission proposed 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)).
b. Comments
259. ACEG recommends that the Commission modify Sec. 50.7(g)(8) to
clarify that the relevant information ``may be provided through the
state filing process,'' i.e., through the filing of an application with
the State.\331\
---------------------------------------------------------------------------
\331\ ACEG Comments at 13.
---------------------------------------------------------------------------
c. Commission Determination
260. This final rule adopts the revisions to Sec. 50.7 as proposed
in the NOPR. This information will enable 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). We note that applicants may also file additional information
to contextualize the required analyses. We decline to revise Sec.
50.7(g), as ACEG suggests, to clarify that the information required
under Sec. 50.7(g)(8) may be provided through the State filing
process. Section 50.7(g)(8) directs an applicant to include any other
engineering 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 as part of its Exhibit G filing. We interpret ACEG's
recommendation to mean that the Commission rely on information provided
by an applicant through a separate State filing process rather than
requiring the applicant to identify and file with the Commission any
other information identified by the State as a minimum siting
requirement. While in many cases an application filed with the State
would likely include the necessary information to satisfy Sec.
50.7(g)(8), this may not always be the case. Moreover, we find it is
necessary that any additional engineering information that the State
identifies as a minimum siting requirement be identified in Exhibit G
and filed as part of the Commission record.
7. Section 50.11--General Permit Conditions
a. NOPR Proposal
261. Section 50.11 lists the general conditions that would apply to
any permit issued under part 50 of the Commission's regulations. In the
NOPR, the Commission proposed to clarify Sec. 50.11(a) and (b) and
proposed 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.\332\ The
Commission explained that the proposed addition, which mirrors a
regulation that the Commission previously adopted in the natural gas
pipeline context,\333\ would ensure that construction of approved
transmission facilities does not begin during the 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
[[Page 46713]]
denied by operation of law.\334\ The Commission stated that this
revision is intended to balance the Commission's 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.\335\
---------------------------------------------------------------------------
\332\ NOPR, 181 FERC ] 61,205 at PP 46-47.
\333\ See Limiting Authorizations to Proceed with Construction
Activities Pending Rehearing, Order No. 871, 85 FR 40113 (July 6,
2020), 171 FERC ] 61,201 (2020), order on reh'g, Order No. 871-B, 86
FR 26150 (May 5, 2021), 175 FERC ] 61,098, order on reh'g, Order No.
871-C, 176 FERC ] 61,062 (2021).
\334\ NOPR, 181 FERC ] 61,205 at P 47.
\335\ Id.
---------------------------------------------------------------------------
b. Comments
262. Chamber of Commerce, American Chemistry Council, and ClearPath
disagree with the proposed revisions to Sec. 50.11. American Chemistry
Council states that the provision would delay action on needed
investment.\336\ Similarly, ClearPath argues that projects with a
likelihood of approval following a rehearing process should be timely
developed and project developers should bear the risk of commencing
construction while a rehearing request is pending.\337\ Chamber of
Commerce asserts that delaying the effectiveness of a final Commission
order pending rehearing is inconsistent with the FPA's provision
stating that the filing of an application for rehearing does not
operate as a stay of the Commission's order.\338\
---------------------------------------------------------------------------
\336\ American Chemistry Council Comments at 4.
\337\ ClearPath Comments at 6.
\338\ Chamber of Commerce Comments at 6 (citing 16 U.S.C.
825l(c)).
---------------------------------------------------------------------------
263. On the other hand, CATF, EDF, and Public Interest
Organizations support the proposed addition to Sec. 50.11(d).\339\
CATF believes that holding construction pending rehearing to resolve
challenges to project construction and need builds trust in the
permitting process.\340\ While Public Interest Organizations agree with
the requirement in Sec. 50.11(d), they recommend that the Commission
clarify that, before issuing a permit, the Commission will ensure that
the applicant has obtained all necessary Federal and State permits and
not authorize any activities that would take private property or alter
the environment.\341\
---------------------------------------------------------------------------
\339\ CATF Comments at 12; EDF Comments at 15; Public Interest
Organizations Comments at 139.
\340\ CATF Comments at 12.
\341\ Public Interest Organizations Comments at 139.
---------------------------------------------------------------------------
c. Commission Determination
264. We adopt the revisions to Sec. 50.11 as proposed in the NOPR.
We are not persuaded by arguments that precluding issuance of
authorizations to proceed with construction of transmission facilities
during certain limited periods of time would result in undue delay of
needed infrastructure development. We are committed to encouraging the
development of needed transmission infrastructure and to minimizing the
risk of delays. Nonetheless, we also consider the interest in
expeditiously responding to parties' concerns on rehearing and the
serious concerns posed by the possibility of construction commencing
prior to the completion of agency review, including the potential for
irreparable harm to property interests or the environment.\342\ The
purpose of the revision is to preclude construction during the period
the Commission may act on rehearing under the defined circumstances and
for a limited period of time, such that construction does not commence
before the Commission has completed its decision-making process. The
rehearing process serves as a mechanism for the Commission to carefully
consider the arguments presented, in order to resolve disputes or bring
its expertise to bear on complex, technical matters before they are
potentially presented to the courts.\343\ Further, it is correct that
section 313(c) of the FPA states that the filing of a rehearing request
does not stay a Commission order. We believe by exercising our
discretion to add language to Sec. 50.11(d), we are addressing the
significant fairness and due process concerns that could arise if the
Commission authorized a developer to commence construction before the
Commission has finalized its proceeding and an aggrieved party can seek
court review of a Commission decision.\344\ Any incremental delay or
uncertainty created by this provision is acceptable given the benefits
that it provides. Moreover, we note that the Commission has previously
implemented this policy in the context of natural gas pipeline
authorizations, with no deleterious effects of which we are aware.
---------------------------------------------------------------------------
\342\ See Order No. 871, 171 FERC ] 61,201 at P 11.
\343\ Id. P 9.
\344\ See Order No. 871-B, 175 FERC ] 61,098 at P 49.
---------------------------------------------------------------------------
8. Clarifying Revisions to 18 CFR Part 50
265. In addition to the revisions discussed above, the Commission
proposed minor, non-substantive edits throughout part 50 of the
regulations. This final rule adopts the proposed revisions and makes
additional minor edits, which are intended to clarify or streamline
existing requirements, to correct grammatical errors and cross-
references, and to maintain consistency. In addition, this final rule
revises Sec. 50.5(c)(6) to require that an applicant include as part
of its pre-filing request proposals for all prospective third-party
contractors instead of at least three proposals. This change is
consistent with the Commission's current practice for the review of
third-party contractors to assist Commission staff with preparing
environmental documents for natural gas and hydropower
proceedings.\345\
---------------------------------------------------------------------------
\345\ See FERC, Handbook for Using Third-Party Contractors to
Prepare Environmental Documents (July 2022), https://www.ferc.gov/media/handbook-using-third-party-contractors-prepare-environmental-documents.
---------------------------------------------------------------------------
E. Additional Considerations Raised by Commenters
266. The Commission received a number of comments on topics that
were not directly implicated by the NOPR's proposed changes to part 50
of the Commission's regulations. Those comments and our determinations
are discussed in this section. We find no need to modify the final rule
in response to these comments, as further discussed below.
1. Grid-Enhancing Technologies
a. Comments
267. California Commission states that the Commission's siting
process should consider non-wire alternatives that are cost effective,
noting that these types of analyses are required in California prior to
the issuance of Certificates of Public Convenience and Necessity.\346\
Environmental Law & Policy Center agrees, contending that requiring the
consideration of grid-enhancing technologies and other advanced
technologies in the transmission planning and siting processes would
remedy a deficiency in the NOPR of an arbitrary line drawn between
wires and non-wires solutions.\347\ Further, Environmental Law & Policy
Center suggests that consideration of grid-enhancing technologies and
advanced transmission technologies would help address stakeholder
concerns commonly associated with large infrastructure development
(i.e., siting conflicts, visual impacts, habitat loss, and
environmental justice concerns) because it can reduce the footprint of
a transmission project.\348\
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\346\ California Commission Comments at 4.
\347\ Environmental Law & Policy Center Reply Comments at 6-7
(citing California Commission Comments at 4).
\348\ Environmental Law & Policy Center Reply Comments at 6-7.
---------------------------------------------------------------------------
b. Commission Determination
268. We find that no modification of the regulations is required to
allow for consideration of grid-enhancing or other advanced
technologies. As proposed in the NOPR and adopted herein,
[[Page 46714]]
Sec. 50.7(h)(3)(iv) requires an applicant to include, as part of the
Exhibit H system analysis data, an analysis of how the proposed project
will incorporate any advanced technology design features, if
applicable. Accordingly, the Commission will consider any proposed
advanced technology design features submitted by an applicant as part
of its Exhibit H system analysis data, on a case-by-case basis. The
Commission will also consider on a project-specific basis information
submitted regarding non-wires alternatives. As discussed further below,
an applicant is required to address a variety of alternatives in the
environmental resource reports, including, where appropriate,
alternatives other than new transmission lines.\349\
---------------------------------------------------------------------------
\349\ See Resource Report 12--Alternatives discussion infra Part
II.F.4.h.
---------------------------------------------------------------------------
2. Use of Existing Rights-of-Way
a. Comments
269. Some commenters assert that the Commission should use its
authority under FPA section 216(b) to promote the use of existing
rights-of-way to site new transmission projects, including using
highway and railroad corridors, as well as burying transmission
projects in existing rights-of-way.\350\ Rail Electrification Council
states that section 216 allows the Commission to consider whether
utilizing existing rights-of-way for proposed transmission lines would
promote efficient use of resources, advance regional plans, and avert
or minimize undue harm to communities and the environment.\351\
Further, Rail Electrification Council asserts that the Commission
should promote the use of best practices in siting transmission
facilities, one of which is the use of existing rights-of-way where
financially and operationally feasible and where beneficial to
developers, property owners, and local economies.\352\
---------------------------------------------------------------------------
\350\ See Impacted Landowners Comments at 2; Rail
Electrification Council Comments at 7-9; Impacted Landowners Reply
Comments at 3-4.
\351\ Rail Electrification Council Comments at 8 (referencing
https://nextgenhighways.org/; ACEG, Recommended Siting Practices for
Electric Transmission Developers, Sec. 4 ``Co-Location in Existing
Rights-of-Way'' (Feb. 2023), https://cleanenergygrid.org/portfolio/recommended-siting-practices-electric-transmission-developers/).
\352\ Id. at 7-9.
---------------------------------------------------------------------------
270. Rail Electrification Council also asks the Commission to opine
on whether specific railroad rights-of-way could be designated as
National Corridors and whether such designation would facilitate
transmission development by reducing project impacts and by authorizing
the use of eminent domain, including in instances where State law might
prevent access to privately held rights-of-way.\353\
---------------------------------------------------------------------------
\353\ Id. at 13.
---------------------------------------------------------------------------
b. Commission Determination
271. Under FPA section 216(a), one of the factors that DOE may
consider in determining whether to designate a National Corridor is
whether the designation maximizes existing rights-of-way.\354\ Section
216(b), however, does not include a comparable provision that the
Commission consider whether proposed transmission facilities maximize
use of existing rights-of-way for transmission siting. Although we
agree that co-location in existing rights-of-way may benefit
landowners, reduce costs and environmental impacts, and shorten
construction time,\355\ co-location in existing rights-of-way may not
always be feasible. The Commission will consider whether and to what
degree a project may be able to use existing rights-of-way on a case-
by-case basis. Because an applicant is already required to submit
information to the Commission regarding a project's use of existing
rights-of-way, no further changes are needed to the regulations.
---------------------------------------------------------------------------
\354\ 16 U.S.C. 824p(a)(4)(G).
\355\ See ACEG, Recommended Siting Practices for Electric
Transmission Developers 8 (Feb. 2023), https://cleanenergygrid.org/portfolio/recommended-siting-practices-electric-transmission-developers/.
---------------------------------------------------------------------------
272. Regarding the suitability and benefits of designating specific
railroad rights-of-way as National Corridors, DOE, not the Commission,
is responsible for designating National Corridors under section 216(a)
of the FPA. Thus, this is a matter for DOE to consider, and is beyond
the scope of this final rule.
3. Project Costs
a. Comments
273. Several commenters contend that the NOPR does not address how
the costs of projects subject to the Commission's siting authority will
be evaluated, allocated, or recovered.\356\
---------------------------------------------------------------------------
\356\ California Commission Comments at 4; Louisiana Commission
Comments at 8-9; North Carolina Commission and Staff Comments at 14;
Senator Barrasso Comments at 5.
---------------------------------------------------------------------------
b. Commission Determination
274. We find that no modification of the regulations is necessary
in response to commenters' concerns that the NOPR did not address cost
considerations. Such issues are outside of the scope of this final
rule. Nothing in this final rule is intended to modify existing
Commission processes governing the evaluation, allocation, and cost
recovery of a transmission project.
4. Miscellaneous
a. Comments
275. Farm Bureaus argue that the proposed rule is unclear as to
whether a non-incumbent transmission developer could apply for a
Federal permit at the same time that an incumbent transmission
developer is obtaining a State permit, which they state would create a
major conflict between State and Federal law.\357\
---------------------------------------------------------------------------
\357\ Farm Bureaus Comments at 5.
---------------------------------------------------------------------------
276. Farm Bureaus also note that ISOs and RTOs are responsible for
identifying current priority transmission corridors and state that it
is unclear how National Corridors relate to projects and ``multi-value
priority areas'' that have already been identified by ISOs and
RTOs.\358\
---------------------------------------------------------------------------
\358\ Id. at 7.
---------------------------------------------------------------------------
b. Commission Determination
277. We find that no modification of the regulations is necessary
in response to Farm Bureaus' comments. This rulemaking proceeding is
not the appropriate forum to address individual hypothetical scenarios.
As we have stated elsewhere in this final rule, we will take into
account information specific to each application, including information
regarding the jurisdictional basis to support the submission of an
application with the Commission.\359\
---------------------------------------------------------------------------
\359\ See supra P 34.
---------------------------------------------------------------------------
278. In response to the request that the final rule explain how
National Corridors relate to RTO/ISO-identified projects and priority
areas, we reiterate that the designation of National Corridors is
within DOE's exclusive authority under FPA section 216(a). For that
reason, we find that Farm Bureaus' requested clarification is outside
the scope of this final rule.
F. Regulations Implementing NEPA
279. In Order No. 689, the Commission also amended its regulations
implementing NEPA to incorporate environmental review procedures for
electric transmission facilities. 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 (EA)), 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
[[Page 46715]]
environmental impact statement (EIS)), 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). The Commission also added Sec.
380.16, which describes the specific environmental information that
applications for permits to site transmission facilities under section
216 must include. The applicant must submit this information in an
environmental report, consisting of resource-specific reports,
described further below.
280. As explained above, the Fourth Circuit's 2009 Piedmont
decision vacated Order No. 689's amendments to the Commission's NEPA
regulations because the court found that the Commission had failed to
consult with CEQ prior to issuing the revised regulations.\360\ Despite
the Fourth Circuit's vacatur, the amendments to the Commission's NEPA
regulations set forth in Order No. 689 are still reflected in 18 CFR
part 380 although they are not currently effective.\361\
---------------------------------------------------------------------------
\360\ See supra P 11.
\361\ Notwithstanding that these regulations are not currently
effective, for ease of reference, the term ``existing'' is used in
Part II.F. to denote Order No. 689's amendments to the Commission's
NEPA regulations in 18 CFR part 380.
---------------------------------------------------------------------------
1. Consultation with CEQ
a. NOPR Proposal
281. In the NOPR, the Commission sought 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 also committed to
consulting with CEQ on the proposed changes to its NEPA regulations
described below as well as those originally implemented by Order No.
689.
b. Comments
282. Commenters including Public Interest Organizations, EEI, and
ClearPath note that the Commission must consult with CEQ when updating
its NEPA regulations and that the Commission must take CEQ's input
seriously and incorporate CEQ's proposed alterations.\362\ Public
Interest Organizations also explain that CEQ is in the process of
updating its NEPA regulations and that the Commission's NEPA
implementing regulations may need to be updated based on CEQ's
forthcoming updates.\363\
---------------------------------------------------------------------------
\362\ Public Interest Organizations Comments at 101-102; EEI
Comments at 9; ClearPath Comments at 6-7.
\363\ Public Interest Organizations Comments at 101-102.
---------------------------------------------------------------------------
c. Commission Determination
283. On March 2, 2023, a letter was sent to CEQ requesting
consultation related to the proposed NEPA regulations.\364\ Following
discussion of the proposed regulations among CEQ and Commission staff,
CEQ provided its comments on the proposal on August 24, 2023.
---------------------------------------------------------------------------
\364\ Commission General Counsel March 2, 2023 Letter to CEQ
Requesting Consultation (filed Mar. 21, 2023).
---------------------------------------------------------------------------
284. On June 3, 2023, Congress enacted the Fiscal Responsibility
Act.\365\ A section titled ``Builder Act'' amended NEPA in several
ways.\366\ We have reviewed the Builder Act amendments and have
determined that no changes are needed to the Commission's regulations
to implement NEPA. We are also reviewing CEQ's Phase 2 rulemaking to
determine whether any of the Commission's NEPA implementing regulations
need to be revised.\367\ If so, the Commission will follow the
appropriate rulemaking procedures in a separate proceeding.
---------------------------------------------------------------------------
\365\ Fiscal Responsibility Act of 2023, Pub.L. 118-5, 137 Stat
10.
\366\ Id. Sec. 321 (providing the ``Builder Act'').
\367\ On May 1, 2024, CEQ published its Phase 2 final rule
revising its regulations implementing NEPA, including to implement
the Builder Act amendments. CEQ, National Environmental Policy Act
Implementing Regulations Revisions Phase 2, 89 FR 35442 (May 1,
2024). CEQ's Phase 2 final rule is effective on July 1, 2024, and
agencies will have 12 months from the effective date to develop or
revise proposed procedures to implement CEQ's revised regulations.
---------------------------------------------------------------------------
2. DOE Coordination
a. NOPR Proposal
285. The Commission did not propose any specific process regarding
coordination with DOE in the NOPR.
b. Comments
286. Multiple commenters urge the Commission to clarify how it will
coordinate with DOE to avoid unnecessarily lengthy and duplicative
Federal environmental review processes for National Corridor
designation and transmission permitting.\368\ Specifically, commenters
state that the Commission should tier its NEPA analysis for its permit
decision off DOE's NEPA analysis for the National Corridor designation,
and only focus on elements that DOE did not address or that have
changed since DOE's review.\369\
---------------------------------------------------------------------------
\368\ ACP Comments at 7-13 and 15; ACORE Comments at 4-5; EDF
Comments at 11; Public Interest Organizations Comments at 105.
\369\ ACP Comments at 7-9, 11-13 (explaining that a tiering
approach would better align with Congress's intent under FPA section
216(h)(5)); CATF Comments at 18-22 (recommending that tiering and
adopting existing NEPA analyses is a best practice for
infrastructure permitting as per the March 2023 Guidance from the
Federal Permitting Improvement Steering Council, Office of
Management and Budget, and the CEQ, encouraging agencies to ``rely
on, adopt, or incorporate by reference components of any high
quality NEPA. . . analyses.''); Public Interest Organizations
Comments at 103-105; ACEG Comments at 18-19. See generally, Off. of
Mgmt. and Budget, M-23-14, Memorandum for the Heads of Executive
Departments and Agencies, Implementation Guidance for the Biden-
Harris Permitting Action Plan, at 5 (Mar. 6, 2023).
---------------------------------------------------------------------------
287. EEI recommends that the Commission conduct programmatic NEPA
reviews that encompass all potential transmission development projects
at a regional scale, instead of each one individually.\370\ EEI
suggests that individual project NEPA reviews could be tiered from the
programmatic NEPA document.
---------------------------------------------------------------------------
\370\ EEI Comments at 10-12.
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288. Several commenters ask that the Commission serve as a
cooperating agency during DOE's environmental review process for
designating National Corridors but also independently assess that
analysis before relying on its use.\371\ EEI states that the Commission
should adopt categorical exclusions that match DOE's existing
categorical exclusions for electric transmission facilities.\372\
---------------------------------------------------------------------------
\371\ Public Interest Organizations Comments at 105; CATF
Comments at 20-21.
\372\ EEI Comments at 9.
---------------------------------------------------------------------------
289. ACORE states that, although the Commission is not a signatory
to the May 2023 interagency Memorandum of Understanding (MOU) with
other Federal agencies to expedite electric transmission infrastructure
under section 216(h) of the FPA, the Commission should work with DOE to
clarify whether the provisions of that MOU can be used for non-
qualifying projects where the Commission is the lead agency.\373\
---------------------------------------------------------------------------
\373\ ACORE Comments at 3-4.
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290. ACEG and SEIA ask that the Commission clarify how the
Commission's siting process timing would align with a project
voluntarily complying with DOE's regulations in 10 CFR part 900 for
early coordination, information sharing, and environmental reviews,
particularly where DOE serves as the lead agency.\374\
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\374\ ACEG Comments at 10; SEIA Comments at 7-8.
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[[Page 46716]]
c. Commission Determination
291. The Commission will coordinate with DOE to the maximum extent
practicable to minimize redundancy and promote efficiency in the
Federal environmental review processes under section 216 of the FPA.
However, the framework for the Commission's coordination with DOE in
exercising DOE's separate authority to designate National Corridors
under section 216(a) of the FPA is beyond the scope of this final rule.
Accordingly, the Commission will consider each request it receives from
DOE to be a cooperating agency individually based on the specific
circumstances. Further, the Commission will coordinate with other
agencies throughout the Commission's review process to comply with the
requirements of section 216(h) of the FPA, as delegated to the
Commission by the Secretary of DOE, and to promote timely and efficient
Federal reviews and permit decisions.
292. The Commission will consider tiering on a case-by-case basis,
as appropriate. Tiering allows a Federal agency to avoid duplicating
previous environmental analysis by referring to another NEPA document
containing the necessary analysis.\375\ The appropriateness of tiering
is dependent on numerous factors, including the scope and timing of the
original NEPA document, the underlying assumptions used in the original
analysis, and changes to the affected environment since the original
analysis.\376\ We recognize that the new NEPA provisions established in
the Builder Act support the development of a single NEPA document for
use, to the extent practicable, by multiple agencies \377\ and continue
to allow the use of programmatic NEPA documents.\378\
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\375\ Rio Grande LNG, LLC, 182 FERC ] 61,027 (2023) (citing 40
CFR 1501.11).
\376\ See 42 U.S.C. 4336b (describing circumstances where an
agency can rely on a higher-tier programmatic environmental
document); 40 CFR 1501.11(c) (describing circumstances when tiering
is appropriate).
\377\ 42 U.S.C. 4336a(b).
\378\ 42 U.S.C. 4336b.
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293. Regarding ACEG's and SEIA's questions about how the
Commission's siting process would align with projects complying with
DOE's regulations implementing section 216(h) of the FPA in 10 CFR part
900, the Commission notes that recently revised Sec. 900.1(f)
specifies that part 900 applies only to qualifying projects which, as
defined in Sec. 900.2, excludes projects seeking a construction or
modification permit from the Commission under section 216(b) of the
FPA.\379\ However, in the event that an applicant originally complying
with 10 CFR part 900 decides to seek a permit from the Commission under
section 216(b) of the FPA, nothing in this final rule precludes the
reuse of materials submitted to DOE. The Commission will coordinate, to
the maximum extent practicable, with the applicant and DOE in order to
facilitate an efficient transition.
---------------------------------------------------------------------------
\379\ As noted above, DOE recently issued a final rule revising
its regulations implementing section 216(h) of the FPA. DOE,
Coordination of Federal Authorizations for Electric Transmission
Facilities, 89 FR 35312 (May 1, 2024).
---------------------------------------------------------------------------
294. As to EEI's request for the Commission to adopt categorical
exclusions that match DOE's existing categorical exclusions, the
Commission will establish any categorical exclusions related to our
siting authority that appear appropriate after the Commission has
gained experience reviewing applications, which is consistent with CEQ
guidance.\380\
---------------------------------------------------------------------------
\380\ CEQ, Establishing, Applying, and Revising Categorical
Exclusions under the National Environmental Policy Act, at 4 (2010),
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf.
---------------------------------------------------------------------------
3. NEPA Document Procedures
i. NOPR Proposal
295. In the NOPR, the Commission did not propose any changes to the
types of facilities or actions that require each type of NEPA document
or how the Commission prepares, distributes, and receives comments on
its NEPA documents as described in Sec. Sec. 380.4 through 380.9 of
the Commission's regulations.
ii. Comments
296. Public Interest Organizations assert that existing Sec. 380.9
makes NEPA documents available to the public pursuant to the Freedom of
Information Act and via the Commission's physical reading room ``at a
fee.'' They request that the Commission specify in its regulations that
it will also make NEPA documents publicly available online at no
charge.\381\
---------------------------------------------------------------------------
\381\ Public Interest Organizations Comments at 135-136.
---------------------------------------------------------------------------
297. Public Interest Organizations express concern that under the
existing Sec. Sec. 380.5 and 380.6, only those transmission projects
sited in existing rights-of-way are potentially subject to an EA
instead of the lengthier EIS, which creates an incentive to site in
existing rights-of-way and may diminish the rigor of the assessment of
a project's impacts.\382\
---------------------------------------------------------------------------
\382\ Public Interest Organizations Comments at 126-131.
---------------------------------------------------------------------------
298. Public Interest Organizations and the Yurok Tribe request that
the Commission's regulations be revised to clearly state that the
public will have an opportunity to comment on any draft NEPA document
that the Commission issues.\383\ The Yurok Tribe states that although
agencies frequently provide 30-day comment periods on NEPA documents,
the Commission should provide Tribes with at least 60 days to provide
input, noting this longer comment period is appropriate in light of
Tribes' sovereign status and limited resources.\384\
---------------------------------------------------------------------------
\383\ Public Interest Organizations Comments at 126-131; Yurok
Tribe Comments at 38-39.
\384\ Yurok Tribe Comments at 38-39.
---------------------------------------------------------------------------
iii. Commission Determination
299. We decline to modify our regulations regarding the
availability of Commission NEPA documents. Existing Sec. 380.9 states
that the Commission will make NEPA documents available to the public,
and the Commission does so, at no charge, through the Commission's
eLibrary system.\385\ The reference to obtaining materials ``at a fee''
in the regulations refers to obtaining copies of records already
available through the Commission's website or for obtaining records
subject to Freedom of Information Act or Critical Energy Infrastructure
Information requests.
---------------------------------------------------------------------------
\385\ 18 CFR 380.9 (2023).
---------------------------------------------------------------------------
300. With respect to commenters' concerns regarding the development
of an EA or EIS for a particular project affecting the rigor of the
Commission's reviews and the appropriate length of time for comment
periods, the Commission will make such determinations on a case-by-case
basis because the appropriate approach is likely to vary based on the
factual circumstances. Existing Sec. Sec. 380.5 and 380.6 also include
provisions to allow flexibility for Commission staff to prepare an EA
or EIS based on project-specific circumstances. We note that Commission
proceedings, whether involving either an EA or an EIS, typically
include numerous opportunities for public comment (and, in the case of
Tribes, government-to-government consultation).
4. Revisions to 18 CFR 380.16
a. Addition of New Resource Reports and General Revisions to Existing
Reports
i. NOPR Proposal
301. In the NOPR, the Commission proposed to add to Sec. 380.16
three new resource reports (Tribal resources, Environmental justice and
Air quality and environmental noise). For this
[[Page 46717]]
reason, the Commission proposed to redesignate all resource reports
after Resource Report 5--Socioeconomics as follows: Resource Report 6--
Tribal resources (Sec. 380.16(h)); Resource Report 7--Environmental
justice (Sec. 380.16(i)); Resource Report 8--Geological resources
(Sec. 380.16(j)); Resource Report 9--Soils (Sec. 380.16(k)); Resource
Report 10--Land use, recreation, and aesthetics (Sec. 380.16(l));
Resource Report 11--Air quality and environmental noise (Sec.
380.16(m)); Resource Report 12--Alternatives (Sec. 380.16(n));
Resource Report 13--Reliability and safety (Sec. 380.16(o)); and
Resource Report 14--Design and engineering (Sec. 380.16(p)). The
Commission also proposed minor, non-substantive edits throughout Sec.
380.16 intended to clarify or streamline existing requirements, to
correct grammatical errors and cross-references, and to maintain
consistency.
302. The Commission proposed to revise the General project
description resource report to more clearly identify the types of
facilities that must be depicted on the topographic maps and aerial
images or photo-based alignment sheets. The Commission also proposed to
add requirements to describe any proposed horizontal directional
drilling and pile driving that may be necessary, indicate the days of
the week and times of the day during which construction activities
would occur, and describe any proposed nighttime construction
activities.
303. The Commission proposed to add a requirement that the Water
use and quality resource report describe the impact of proposed land
clearing and vegetation management practices on water resources. The
Commission also proposed to add a requirement that the Soils resource
report describe any proposed mitigation measures intended to reduce the
potential for adverse impacts to soils or agricultural productivity. In
addition, the Commission proposed only minor, clarifying edits to the
Socioeconomics, Geologic resources, and Design and engineering resource
reports.
304. The discussion that follows this section focuses on the
individual resource reports for which we received substantive
comments.\386\ For each of those resource reports, we describe the NOPR
proposal, comments received, and the Commission's determination.
---------------------------------------------------------------------------
\386\ See discussion infra Parts II.F.4.b. through II.F.4.j.
---------------------------------------------------------------------------
ii. Comments
305. No comments were received on the proposed revisions to the
General project description, Water use and quality, Socioeconomic,
Geologic resources, Soils, and Design and engineering resource reports.
306. Several commenters argue that the three new resource reports
expand the Commission's authority beyond the scope of section 216 of
the FPA, opening the door to future legal challenges.\387\ Chamber of
Commerce further states that the Tribal resources and Environmental
justice resource reports appear to impede rather than facilitate
efficient siting and construction of necessary transmission facilities.
American Chemistry Council questions whether the three new resource
reports or any expansions to existing resource reports are needed as
the information is already required by State partners and there is
little justification for increased resources and burden.
---------------------------------------------------------------------------
\387\ American Chemistry Council Comments at 7-8; Chamber of
Commerce Comments at 3; ClearPath Comments at 6-7; ELCON Comments at
5-6; North Dakota Commission Comments at 7-8.
---------------------------------------------------------------------------
iii. Commission Determination
307. We adopt the NOPR's proposed revisions to the General project
description, Water use and quality, Socioeconomic, Geologic resources,
Soils, and Design and engineering resource reports in this final rule.
We continue to find that the NOPR's revisions to these reports will
clarify information needed to support the Commission's NEPA analyses.
In addition, this final rule adopts the proposed minor, non-substantive
edits throughout Sec. 380.16 and makes additional minor edits to
clarify or streamline existing requirements, to correct grammatical
errors and cross-references, and to maintain consistency.
308. We also adopt the NOPR's three new resource reports (Tribal
resources, Environmental justice and Air quality and environmental
noise). We disagree with commenters that the designation of three new
resource reports alters the scope of the Commission's legal authority,
or in some way impedes the Commission's consideration of applications
under FPA section 216. The required information in these resource
reports is necessary for the Commission to fully evaluate the effects
of a proposed project and meet its statutory obligations under the FPA
and NEPA. Additionally, the Commission routinely requests this type of
information from applicants for natural gas and hydroelectric projects
through existing regulatory requirements or data requests.
309. Regarding American Chemistry Council's concerns that
information in the new resource reports is already required by State
partners, we note that not all States require the same information for
their respective reviews of electric infrastructure. Regardless of the
relevant State filing requirements, this information should be filed on
the record for the Commission to use it in its proceeding. In the
instances where information is already developed for a State review
process, applicants can provide that same information to the Commission
to support the Commission's NEPA review.
b. Resource Report 3--Fish, Wildlife, and Vegetation
i. NOPR Proposal
310. The Fish, wildlife, and vegetation resource report 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.\388\ In the NOPR, the
Commission proposed to modify existing Sec. 380.16(e)(3) and (4) to
include additional requirements in the Fish, wildlife, and vegetation
resource report. Specifically, the Commission proposed to require that
applicants describe the potential impact on interior forest (in Sec.
380.16(e)(3)), as well as the impact of proposed land clearing and
vegetation management practices on fish, wildlife, and vegetation (in
Sec. 380.16(e)(4)).
---------------------------------------------------------------------------
\388\ 18 CFR 380.16(e).
---------------------------------------------------------------------------
ii. Comments
311. Arizona Game and Fish requests that the Commission include
additional requirements in the Fish, wildlife, and vegetation resource
report beyond the NOPR proposal. Specifically, Arizona Game and Fish
recommends that applicants identify, analyze, and develop mitigation
measures to address potential impacts on wildlife connectivity and
movement corridors, habitat loss and fragmentation, and the
introduction and spread of noxious weeds and non-native species.\389\
---------------------------------------------------------------------------
\389\ Arizona Game and Fish Comments at 1-2.
---------------------------------------------------------------------------
312. Arizona Game and Fish also calls for revisions to existing
Sec. 380.16(e)(4) to require the resource report to include
information from State Wildlife Action Plans and a description of
potential impacts on species listed under State Species of Greatest
Conservation Need.\390\
---------------------------------------------------------------------------
\390\ Id. at 2.
---------------------------------------------------------------------------
313. Interior supports the NOPR proposal.\391\ In addition,
Interior recommends that the Fish, wildlife, and vegetation resource
report require applicants to identify all known and
[[Page 46718]]
potential bald and golden eagle nesting and roosting sites, migratory
bird flyways, and any sites important to migratory bird breeding,
feeding, and sheltering.\392\ Interior further requests that the
resource report require commitments from applicants to implement
avoidance and minimization measures to reduce the likelihood of
incidental take of eagles and migratory birds. Finally, Arizona Game
and Fish recommends incorporating standards established by the Avian
Power Line Interaction Committee into the resource report to address
the vulnerability of birds of prey to powerline strikes and
electrocution.\393\
---------------------------------------------------------------------------
\391\ Interior Comments at 1.
\392\ Id.
\393\ Arizona Game and Fish Comments at 2.
---------------------------------------------------------------------------
iii. Commission Determination
314. To support the Commission's NEPA analyses, we adopt the NOPR's
proposal, with additional modifications, to revise the Fish, wildlife,
and vegetation resource report in existing Sec. 380.16(e) to require
the applicant to describe potential impacts on interior forest as well
as the impact of proposed land clearing and vegetation management
practices on fish, wildlife, and vegetation. In response to comments,
we modify existing Sec. 380.16(e)(2) to include wildlife corridors and
we modify existing Sec. 380.16(e)(3) to include noxious weeds and non-
native species.\394\ To support the Commission in assessments under the
Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act,
we add a new provision in Sec. 380.16(e)(7) \395\ to address migratory
birds and bald and golden eagles.\396\
---------------------------------------------------------------------------
\394\ Commission staff routinely asks applicants in natural gas
and hydropower proceedings to provide information about noxious
weeds and invasive species. See, e.g., Commission staff,
Environmental Information Request, Docket No. CP23-536, at 4 (issued
Nov. 3, 2023) (Question No. 9); Commission staff, Deficiency of
License Application and Additional Information Request, Project No.
14851-003, at B-14 (issued Apr. 28, 2023) (Question No. 42(b)); see
also FERC, Guidance Manual for Environmental Report Preparation--
Volume 1, at 4-65 and 4-66 (Feb. 2017), https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf.
\395\ Because of the addition of this new requirement, the
requirements in the Fish, wildlife, and vegetation resource report
after existing Sec. 380.16(e)(6) are redesignated from paragraphs
(e)(7) and (e)(8) to paragraphs (e)(8) and (e)(9), respectively.
\396\ Commission staff routinely asks applicants in natural gas
and hydropower proceedings to provide information about migratory
bird species and bald and golden eagles. See, e.g., Commission
staff, Environmental Information Request, Docket No. CP23-536, at 5
(issued Nov. 3, 2023) (Question Nos. 14-16); Commission staff,
Deficiency of License Application and Additional Information
Request, Project No. 14851-003, at B-14 through B-19 (issued Apr.
28, 2023) (Question Nos. 42(d)-(f), 43, 44(j), 45, and 47-50); see
also FERC, Guidance Manual for Environmental Report Preparation--
Volume 1, at 4-62 and 4-63 (Feb. 2017), https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf.
---------------------------------------------------------------------------
315. We agree with Arizona Game and Fish that requiring the
applicant to identify and analyze potential impacts on wildlife
corridors would help ensure that this specific habitat is adequately
identified in support of the Commission's NEPA analyses. Therefore, we
modify existing Sec. 380.16(e)(2) to include a requirement to describe
wildlife corridors. We also agree with Arizona Game and Fish that
requiring the applicant to identify and analyze noxious weeds and non-
native species would establish a baseline of known areas where noxious
weeds and non-native species occur. Therefore, we modify existing Sec.
380.16(e)(3) to require the resource report to describe any areas of
noxious weeds and non-native species. This change will support the
Commission's NEPA analysis by identifying areas that may require
different restoration methods or additional vegetation management
during construction, operation, and maintenance.
316. We decline to modify the requirements in the Fish, wildlife,
and vegetation resource report to require the applicant to identify
conservation or mitigation measures. We find that the existing
regulations already require the applicant to address the disclosure of
potential project impacts, specifically, Sec. 380.16(e)(4) directs
that the Fish, wildlife, and vegetation resource report describe the
possibility of a major alteration to ecosystems or biodiversity.\397\
Further, a description of site-specific mitigation measures is required
in redesignated Sec. 380.16(e)(8) of this final rule. These existing
regulations adequately address the potential impacts and mitigation
measures.
---------------------------------------------------------------------------
\397\ 18 CFR 380.16(e)(4).
---------------------------------------------------------------------------
317. Similarly, we decline Arizona Game and Fish's request to
modify existing Sec. 380.16(e)(4) to require that the Fish, wildlife,
and vegetation resource report include State Species of Greatest
Conservation Need and incorporate information from State Wildlife
Action Plans. We find that the species of concern to States are already
addressed. Section 380.16(e)(4) requires the applicant to describe
potential impacts on all plant and animal wildlife, including species
of special concern and State-listed endangered or threatened species.
Therefore, we do not believe that the suggested revisions are
necessary.
318. We decline Arizona Game and Fish's request to prescribe the
standards established by the Avian Power Line Interaction Committee
into the Commission's regulations. The Commission supports practices to
protect birds; however, in the event the referenced standards are
subsequently revised based on new scientific data, the Commission's
regulations could become outdated or inaccurate. Commission staff will
consider applicable Avian Power Line Interaction Committee standards on
a project-specific basis.
319. We agree with Interior's comments that the Fish, wildlife, and
vegetation resource report should require the identification of all
known and potential bald and golden eagle nesting and roosting sites,
migratory bird flyways, and any sites important to migratory bird
breeding, feeding, and sheltering. We find that this information may
assist the Commission in its assessments under the Migratory Bird
Treaty Act and the Bald and Golden Eagle Protection Act. Accordingly,
this final rule adds a new requirement in Sec. 380.16(e)(7) to
identify migratory birds and bald and golden eagles in the project
area. This final rule also adopts corresponding changes in existing
Sec. 380.16(e)(4), redesignated (e)(8), and redesignated (e)(9) to
include impacts, mitigation, and correspondence on migratory birds and
bald and golden eagles.
c. Resource Report 4--Cultural Resources
i. NOPR Proposal
320. The Cultural resources resource report 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 of 1966 (NHPA).\398\ In the NOPR, the Commission
proposed only minor clarifying edits to this resource report.
---------------------------------------------------------------------------
\398\ 18 CFR. 380.16(f).
---------------------------------------------------------------------------
ii. Comments
321. Commenters suggest that Tribes be allowed to choose the
assessors that will study land with the Tribes' cultural resources, and
that assessors must follow all Tribal rules and guidelines for land
surveys and assessments.\399\
---------------------------------------------------------------------------
\399\ Yurok Tribe Comments at 33; Public Interest Organizations
Comments at 70 and 72.
---------------------------------------------------------------------------
iii. Commission Determination
322. We adopt the minor changes to the Cultural resources resource
report as proposed in the NOPR. We decline to
[[Page 46719]]
modify the regulations to require that Tribes choose the assessors used
by an applicant to study cultural resources. To complete cultural
resources surveys, we encourage applicants to consider Tribal input,
including recommendations on survey methodology or accessor selection.
With respect to the request to specify the rules and guidelines for
cultural resources surveys and assessments, applicants and consultants
should follow the Secretary of the Interior's Standards and Guidelines
for Archeology and Historic Preservation,\400\ and they would have to
follow the appropriate State laws on private lands and the requirements
of Federal land-managing agencies on Federal lands. If a proposed
project would affect Tribal land, the applicant must adhere to any
Tribal requirements for conducting cultural resources studies on Tribal
lands.\401\
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\400\ Department of the Interior, National Park Service,
Archeology and Historic Preservation; Secretary of the Interior's
Standards and Guidelines, 48 FR 44716 (Sept. 29, 1983).
\401\ 18 CFR 380.14(a)(2).
---------------------------------------------------------------------------
d. Resource Report 6--Tribal Resources
i. NOPR Proposal
323. In the NOPR, the Commission stated that it 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.\402\ To help the Commission 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.\403\ 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;
\404\ provide available information on traditional cultural and
religious properties; \405\ and ensure that specific site or location
information is not disclosed, because disclosure will create a risk of
harm, theft, or destruction or violate Federal law.\406\
---------------------------------------------------------------------------
\402\ 18 CFR 2.1c (2023).
\403\ See 18 CFR 380.16(j)(5).
\404\ Id. Sec. 380.16(j)(5)(i).
\405\ Id.
\406\ Id. Sec. 380.16(j)(5)(ii).
---------------------------------------------------------------------------
324. In the NOPR, the Commission proposed to relocate the existing
Tribal resource-related information requirements to a new, standalone
resource report, Resource Report 6--Tribal resources, in Sec.
380.16(h). In addition to consolidating the existing requirements in a
new resource report,\407\ the Commission also proposed to require an
applicant to identify potentially-affected Tribes; describe the impacts
of project construction, operation, and maintenance on Tribes and
Tribal interests, including impacts related to enumerated resource
areas; 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). The NOPR explained
that the Commission believes this information is necessary to allow it
to fully evaluate the effects of a proposed project in furtherance of
the Commission's trust responsibility and the Commission's statutory
obligations under the FPA and NEPA.
---------------------------------------------------------------------------
\407\ See id. Sec. 380.16(h)(4)-(5).
---------------------------------------------------------------------------
ii. Comments
325. CLF asks that the final rule explain how the Tribal resources
resource report and Cultural resources resource report relate and
interact and clarify that the Tribal Resources resource report is not
duplicative of the Cultural Resources resource report, but instead
addresses Tribal interests and resources that may not be considered
under the NHPA.\408\
---------------------------------------------------------------------------
\408\ CLF Comments at 15.
---------------------------------------------------------------------------
326. The Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe support the
new Tribal Resources resource report but request the Commission require
better supported and more detailed information than is required for a
cultural resources background literature discussion.\409\ For example,
the Tribes ask that the report be prepared using consultants with a
proven track record of considering research by members of the Tribes,
with the Commission evaluating the resource report considering the
expertise and sufficiency of the consultant.\410\ The Chickahominy
Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe also suggest that applicants be required
to engage with Tribes in identifying sacred areas and other culturally
significant regions and to develop Tribal history. Public Interest
Organizations state that the Commission must accept Indigenous
Knowledge as relevant and reliable data in all resource reports, but
especially in the Tribal Resources resource report.\411\
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\409\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 1.
\410\ Id. at 2.
\411\ Public Interest Organizations Comments at 66-69.
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327. Public Interest Organizations state that the Commission's
regulations should require applicants to protect from public
disclosure, to the maximum extent practicable, Tribal information,
including sacred sites, locations, and Indigenous Knowledge.\412\
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\412\ Public Interest Organizations Comments at 73-74.
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328. CLF and the Yurok Tribe also recommend that the Tribal
resources resource report describe any proposed mitigation measures
intended to avoid or minimize impacts on Tribes, or explain why such
mitigation measures were not pursued.\413\
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\413\ CLF Comments at 15; Yurok Tribe Comments at 34-35.
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iii. Commission Determination
329. We adopt the NOPR's proposal to add Resource Report 6--Tribal
resources with one modification to require a description of any
proposed mitigation measures. These requirements will ensure that an
application contains information that helps the Commission assess a
project's impacts on Tribal rights and resources.
330. In response to CLF's request that we clarify the relationship
between the Tribal resources and Cultural resources resource reports,
we explain that the latter is intended to elicit information regarding
efforts to identify and determine effects on historic properties in
furtherance of the Commission's obligations under section 106 of the
NHPA. The Tribal Resources resource report is intended to elicit
information that will enable the Commission to fully evaluate the
effects of a proposed project on Tribal resources in furtherance of the
Commission's trust responsibility and the Commission's statutory
obligations under the FPA and NEPA. It is possible that some, but not
all, of the information filed in the two reports may be duplicative,
but the Tribal Resources resource report will note Tribal interests in
resources that may not be historic properties, including but not
limited to treaty rights.
331. As to Tribes' comments on the qualifications of consultants
that prepare the Tribal resources resource report, applicants should
use qualified consultants that meet the expected standards, for example
the National Park Service's Archeology and Historic Preservation,
Secretary of the Interior's
[[Page 46720]]
Standards and Guidelines, and any other applicable standards. We
encourage applicants to engage with Tribes to identify sacred areas and
other culturally significant regions and to develop Tribal history. Any
information filed on the record by Tribes on a project, including
Indigenous Knowledge, would be reviewed and considered by the
Commission.
332. Regarding public disclosure concerns, pursuant to proposed
Sec. 380.16(h)(5), applicants must ensure that the Tribal resources
resource report does not include sensitive Tribal information--such as
specific site or property locations--the disclosure of which could
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 NHPA and
the Archaeological Resources Protection Act.\414\
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\414\ See also 18 CFR 380.16(f)(4) (directing applicants to
request privileged treatment for all material filed with the
Commission containing cultural resource location, character, and
ownership information in accordance with the Commission's procedures
in Sec. 388.112).
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333. Finally, in response to commenters' feedback, we modify the
proposed resource report to require a description of any proposed
mitigation measures to avoid or minimize impacts on Tribal resources,
including any input received from Indian Tribes regarding the proposed
measures and how the input informed the proposed measures. This
addition is consistent with a comparable requirement in the
Environmental justice resource report adopted herein.\415\
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\415\ See proposed Sec. 380.16(i)(4).
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e. Resource Report 7--Environmental Justice
i. NOPR Proposal
334. In the NOPR, the Commission proposed to add new Resource
Report 7--Environmental justice, in 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;
\416\ describe the impacts of project construction, operation, and
maintenance on environmental justice communities, including whether any
impacts would be disproportionate and adverse; discuss cumulative
impacts on environmental justice communities, including whether any
cumulative impacts would be disproportionate and adverse; 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.
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\416\ As discussed, to identify environmental justice
communities, Commission staff currently reviews U.S. Census Bureau
population data for the applicable location, relevant guidance, and
agency best practices. See supra note 166.
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335. The Commission also proposed a corresponding addition to Sec.
380.2, which sets forth the definitions for the Commission's NEPA
regulations, to define the term ``environmental justice community.''
ii. Comments
336. Several commenters support the addition of the Environmental
justice resource report to ensure that the Commission complies with its
NEPA obligations.\417\ Other commenters object to the inclusion of the
new resource report.\418\
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\417\ See, e.g., ACEG Comments at 16; CATF Comments at 15-16.
\418\ See, e.g., ClearPath Comments at 7; ELCON Comments at 7-8;
North Dakota Commission Comments at 7-8.
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337. ClearPath and North Dakota Commission oppose the proposed
addition of the Environmental justice resource report because the
Commission proposes to rely on executive orders (including executive
orders that do not specify the Commission as a participant), guidance,
and poorly defined criteria rather than laws, statutes, and
regulations, thus threatening to introduce challenges and legal
vulnerabilities.\419\
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\419\ ClearPath Comments at 7; North Dakota Commission Comments
at 7-8.
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338. ClearPath states that the Commission has failed to set clear
and predictable procedures for applicants to follow should updates to
data and guidance be made during the pre-filing and application
processes, created duplicative requirements and paperwork for
applicants, and ClearPath claims that the Commission has instituted a
hierarchy of treatment and consideration of project impacts across
population segments that could have equal protection concerns under the
Constitution.\420\ Similarly, ELCON objects to including a new resource
report specific to one stakeholder type, environmental justice
communities, with identification and mitigation-measure requirements
when other similarly situated stakeholders do not receive such
treatment.\421\
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\420\ ClearPath Comments at 7.
\421\ ELCON Comments at 8.
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339. CLF states that the Commission must commit to a policy of
ensuring that environmental justice communities are not more adversely
impacted by the Commission's siting authority (including when
accounting for the impacts of other, existing energy projects) than
non-environmental justice communities, and to the extent that impacts
are unavoidable, impacted communities should receive benefits that
mitigate or compensate for those impacts.\422\
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\422\ CLF Comments at 11-12.
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340. Public Interest Organizations state that proposed Sec.
380.16(i)(3) must require an integrated cumulative impacts analysis of
environmental and non-environmental stressors, independently reviewed
by Commission staff.\423\ They also ask that the Commission ensure that
flexibility in data sets and factors is not harmful to impacted
communities and prevent the cherry-picking of analytical tools and
methods to fit a desired outcome.\424\ Likewise, Policy Integrity
requests that the Commission provide applicants with additional
guidance on how to analyze cumulative impacts on environmental justice
communities.\425\ It states that this guidance should define key terms
and describe authoritative resources for how to perform such an
analysis.
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\423\ Public Interest Organizations Comments at 91-92.
\424\ Id. at 93.
\425\ Policy Integrity Comments at 2, 39-45.
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iii. Commission Determination
341. We adopt the NOPR's proposal to add Resource Report 7--
Environmental Justice. As an initial matter, as discussed above, the
Commission's authority to require submission of information to assess
the potential for impacts to communities due to development of an
energy infrastructure project is well-established under law, and
necessary for the Commission to achieve its statutory obligations under
the FPA and NEPA.\426\ Accordingly, commenters incorrectly presume that
consideration of such impacts, when gathered in the form of a separate
resource report, is a novel practice or treads new legal ground. These
concerns are unfounded.
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\426\ Supra P 110.
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342. We also disagree with commenters' concerns that we have
inappropriately based the addition of the Environmental justice
resource report solely on Executive Orders and guidance. While we use
Executive Orders and guidance to help establish the information
Commission staff needs to perform its analysis, the Commission has a
responsibility under NEPA to evaluate project-related impacts on the
quality of the human environment,
[[Page 46721]]
which include impacts on environmental justice communities.
343. We disagree with comments asserting that we have failed to set
clear procedures given the potential for updates to data and guidance.
As with all resource reports, applicants are expected to use the best
available data and follow guidance in place at the time they submit
their application. By requiring an environmental justice-specific
resource report, we are setting a clear expectation regarding the
information Commission staff will need to adequately assess project-
related impacts on environmental justice communities. Commenters
provide no examples or explanation of how the new resource report
creates duplicative requirements and paperwork.
344. We do not believe that the requirements institute a hierarchy
of treatment and consideration of project impacts across population
segments. Analyses of impacts are conducted in a manner consistent with
the requirements of NEPA. NEPA requires a ``hard look'' at all the
environmental consequences of a proposed action and consideration of
whether there are steps that could be taken to mitigate any adverse
environmental consequences, without mandating specific substantive
outcomes.\427\ These requirements ensure the Commission has information
necessary to assess the potential impacts of the project but do not
dictate an approach for weighing such potential impacts or determining
whether mitigation may be appropriate.
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\427\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350-351 (1989).
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345. We decline to adopt precise methodologies to assess cumulative
impacts, but instead will allow flexibility in the scope and level of
analysis needed. Cumulative impacts on environmental justice
communities will vary based on project- and site-specific conditions.
Commission staff will use the pre-filing process to review all
information filed on the record and provide feedback to applicants to
assist applicants in identifying cumulative projects and resources to
be addressed in this analysis. We expect applicants to follow the
latest rules, guidance, and data from the Commission, CEQ, the Census
Bureau, and other authoritative sources when performing this analysis.
346. Finally, we agree with Public Interest Organizations that the
Commission should perform its own independent assessment of cumulative
impacts on environmental justice communities. Commission-issued NEPA
documents reflect Commission staff's independent analysis of all
environmental effects of a project.
f. Resource Report 10--Land Use, Recreation, and Aesthetics
i. NOPR Proposal
347. The existing Land use, recreation, and aesthetics resource
report 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.\428\ In the NOPR, the Commission
proposed to add a requirement to this resource report to identify the
area of direct effect of the proposed facilities on interior forest. We
also proposed 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
General project description resource report; and (3) require copies of
any consultation with the Federal Aviation Administration.
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\428\ 18 CFR 380.16(j).
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348. The existing Land use, recreation, and aesthetics resource
report requires applicants 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.
349. In the NOPR, the Commission explained that more specific
information is needed to evaluate the effects of the proposed project
facilities on visual resources. Additionally, to assess visual impacts
of infrastructure projects, including high-voltage transmission lines,
staff has, in some cases, used the Bureau of Land Management's Visual
Resource Management methodology,\429\ and other agencies have used the
Federal Highway Administration's Visual Impact Assessment for Highway
Projects.\430\ Therefore, the NOPR sought comment on whether either of
these tools, or any other tool, is appropriate for our analysis. In the
NOPR, the Commission also proposed to revise the Land use, recreation,
and aesthetics resource report to require that the applicant 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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\429\ See, e.g., Final Environmental Impact Statement for the
Swan Lake North Pumped Storage Project (P-13318-003).
\430\ 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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ii. Comments
350. Arizona Game and Fish recommends including coordination with
State natural resource agencies and other local stakeholders to
identify potential impacts on recreation and opportunities to maintain
public access.\431\
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\431\ Arizona Game and Fish Comments at 3.
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351. Interior requests that Sec. 380.16(l)(4), as revised and
redesignated in the NOPR, be further modified to require the applicant
to identify, by milepost and length of crossing, any National Park
System units and program lands within 0.25 mile of a proposed
facility.\432\
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\432\ Interior Comments at 2.
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352. Impacted Landowners state that the Land use, recreation, and
aesthetics resource report must identify agricultural land by acreage
and use, and describe permanent and temporary impacts on agritourism,
crops, yields, irrigation, drainage, soil quality, livestock, aerial
application of seed, fertilizer, and pesticides.\433\ Impacted
Landowners also ask that this resource report include estimates of
financial impacts on the impacted agricultural businesses from the
construction and operation of the project over its expected life and
identify farmlands designated as prime, unique, or farmlands of
statewide or local importance, including an explanation of how the
construction of a transmission project on working farmland complies
with the Farmland Protection Policy Act.\434\
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\433\ Impacted Landowners Comments at 17.
\434\ 7 U.S.C. 4201-4209.
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353. Impacted Landowners request that the Land use, recreation, and
aesthetics resource report require applicants to investigate
transmission line interference with farm equipment electronics and GPS
systems that are essential to modern precision agriculture.\435\ They
further state that different positions of the transmission line in
relation to the field may also produce different effects.
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\435\ Impacted Landowners Comments at 17.
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354. Interior recommends including National Park System units and
program
[[Page 46722]]
lands in the described areas of potential visual effects by adding the
following to redesignated Sec. 380.16(l)(6): the National Park System
(54 U.S.C. 100101), National Historic Landmarks, National Natural
Landmarks, Land and Water Conservation Fund State Assistance Program
sites, and the Federal Lands to Parks program lands.\436\
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\436\ Interior Comments at 2.
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355. In response to the Commission seeking comment in the NOPR on
whether any specific tools are appropriate for our visual analysis,
commenters provide various recommendations.
356. First, ACEG recommends that the Commission and other Federal
agencies involved in assessing impacts from transmission facilities
consistently apply the same methodologies for reviewing visual impacts
(e.g., Bureau of Land Management or Federal Highway Administration
visual impact assessment tools).\437\ ACEG states that consistently
applying the same methodology will allow the Commission to further
develop expertise with that particular methodology.
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\437\ ACEG Comments at 19.
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357. Interior recommends that applicants use the National Park
Service Visual Impact Assessment Methodology and Guidelines when
describing visually sensitive areas within the viewsheds of National
Park System units.\438\
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\438\ Interior Comments at 2.
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358. The Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe support the
proposed requirement in the Land use, recreation, and aesthetics
resource report that visual aids be prepared to evaluate visual
impacts. The Tribes state that the regulations should expressly provide
that Tribes be consulted in identifying visually sensitive areas and
key viewpoints. The Tribes suggest using a combination of the Bureau of
Land Management's Visual Resource Management methodology to guide on-
the-ground work and the National Park Service's Visual Impact
Assessment Evaluation Guide for Renewable Energy Projects to set the
methodological framework to conduct the visual impacts analysis.\439\
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\439\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 4.
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iii. Commission Determination
359. We adopt the NOPR's proposal to revise the Land use,
recreation, and aesthetics resource report to include interior forest,
clarify the scope of structures and facilities to be identified and
depicted on maps, require copies of any consultation with the Federal
Aviation Administration, and identify the area of potential visual
effects and visual characteristics of the affected lands and waters,
including use of visual aids. Based on commenter feedback regarding
appropriate tools for performing visual analyses, we also adopt one
modification to redesignated Sec. 380.16(l)(10) to require the
applicant to identify, and justify the selection of, the tools or
methodologies it uses to develop the required information on visual
effects. We find that adopting this modification and the changes
proposed in the NOPR will assist the Commission's analysis of effects
on land use and aesthetics under NEPA.
360. In response to Arizona Game and Fish's request to require
coordination with State natural resource agency and other local
stakeholders, under Sec. 50.4(c), applicants are required to provide
project notifications to stakeholders upon entering the pre-filing
process and submitting an application to the Commission, which includes
State natural resource agencies and other local stakeholders, as
applicable. In addition, the Commission would include such stakeholders
on project mailing lists to receive Commission notices throughout the
project's review. Thus, State agencies and local stakeholders will be
invited to participate in the process.
361. Regarding Interior's request for National Park System units
and program lands to be identified in the Land use, recreation, and
aesthetics resource report, the existing regulations in redesignated
Sec. 380.16(l)(4) already require applicants to identify national
parks that would be directly affected or are within 0.25 mile of any
proposed facility.
362. In response to Impacted Landowners' requested additions
regarding agricultural lands and qualities, the Land use, recreation,
and aesthetics resource report already requires the applicant to
identify agricultural land by acreage and use (redesignated Sec.
380.16(l)(2)) and describe permanent and temporary impacts on
agricultural land use (redesignated Sec. 380.16(l)(8)). In addition,
the Soils resource report requires the applicant to identify prime and
unique farmlands (redesignated Sec. 380.16(k)(3)) and address soil
quality/characteristics, including drainage, potential impacts on
soils, and mitigation measures (redesignated Sec. Sec. 380.16(k)(1)
through 380.16(k)(4)). The financial impacts from crop loss are highly
specific, based on the type of crop, duration of impact, and local
market conditions. Thus, these impacts are more appropriately addressed
through easement negotiations or through an eminent domain proceeding.
363. As to compliance with the Farmland Protection Policy Act, this
law applies to Federal programs that may permanently convert farmland
to nonagricultural use, where Federal programs are activities that
``involve undertaking, financing, or assisting construction or
improvement projects or acquiring, managing, or disposing of Federal
lands and facilities.'' \440\ Further, the regulations implementing the
Farmland Protection Policy Act specifically exclude Federal permitting
and licensing programs for activities on private or non-Federal
lands.\441\ Accordingly, the Farmland Protection Policy Act does not
apply to the Commission's review of electric transmission projects.
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\440\ 7 U.S.C. 4201(c)(4).
\441\ 7 CFR 658.2(c) (2023).
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364. Regarding transmission line interference with farm equipment
electronics and GPS systems, Sec. 50.7(g)(1)(v) already requires
applicants to describe line design features for minimizing radio
interference caused by operation of proposed facilities. In addition,
redesignated Sec. Sec. 380.16(o)(6) through (o)(8) under the
Reliability and safety resource report, as proposed in the NOPR and
adopted herein, include requirements to: describe the electromagnetic
fields to be generated by proposed transmission lines, including
strength and extent; discuss the potential for electrical noise from
electric and magnetic fields as they may affect communication systems;
and discuss the potential for induced or conducted currents along the
transmission right-of-way from electric and magnetic fields. Therefore,
the requested update to the Land use, recreation, and aesthetics
resource report is unnecessary.
365. In response to Interior's requested additions to redesignated
Sec. 380.16(l)(6) to describe areas of potential visual effects, we
note that the referenced regulation is not applicable to visual
effects, but simply requires the applicant to identify National Wild
and Scenic Rivers Systems, National Trails Systems, and Wilderness Act
areas that would be crossed by, or within 0.25 mile of, a project.
However, the Land use, recreation, and aesthetics resource report
requires applicants to identify the area of potential visual effects,
including visually sensitive areas and key viewpoints, under the NOPR's
revised and redesignated Sec. 380.16(l)(10).
[[Page 46723]]
Further, the National Park System would be included on the Commission's
stakeholder mailing list, if lands are in close proximity to a proposed
project, and the Commission would work with the applicant during pre-
filing to identify any visually sensitive areas that need to be
evaluated, including any National Park System lands.
366. Considering the comments received on whether any specific
tools are appropriate for our visual analysis, and additional research,
we recognize that a number of Federal agencies have developed their own
visual impact assessment tools or methodologies for purposes of
assessing proposed infrastructure projects.\442\
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\442\ See Bureau of Land Management's Visual Resource Management
methodology, Federal Highway Administration's Visual Impact
Assessment for Highway Projects, National Park Service's Visual
Impact Assessment Methodology and Guidelines, and U.S. Army Corps of
Engineers' Visual Resources Assessment Procedure.
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367. Based on the comments received, there is no consensus on the
appropriate methodology or tool that the Commission or applicants
should use to assess the visual effects of proposed transmission
projects. Further, proposed projects under the Commission's
jurisdiction could be within the viewshed of any number of Federal
lands, where relevant land management agencies may employ different
methodologies. We also recognize that new or revised methodologies and
tools may become available in the future. Therefore, we decline to
mandate the use of a specific tool or methodology in the Commission's
regulations. Instead, this final rule revises Sec. 380.16(l)(10) to
require the applicant to identify, and justify the selection of, the
tools or methodologies it uses to develop the required information on
visual effects. We recognize that there may be efficiency gains if
applicants use the applicable Federal agency guidance, methodology, or
tool for assessing visual impacts on corresponding Federal agency land
(e.g., applicants use the National Park Service Visual Impact
Assessment Methodology and Guidelines when analyzing visual impacts on
the viewsheds of National Park System units) and we support allowing
for such flexibility in the Commission's regulations.
368. Regarding Tribes' requests that Tribes be consulted in
identifying visually sensitive areas and key viewpoints, we encourage
applicants to seek to engage Tribes when identifying visually sensitive
areas and key viewpoints. Tribes may provide comments on visually
sensitive areas and key viewpoints during the applicant's efforts to
engage Tribes early in the permitting process, during government-to-
government consultation with the Commission, or during any of the
comment periods that occur during the Commission's pre-filing and
application processes.
g. Resource Report 11--Air Quality and Environmental Noise
i. NOPR Proposal
369. The Commission explained in the NOPR that the existing
Reliability and safety resource report requires applicants 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. The NOPR further explained that the
Commission's regulations do not currently require applicants to submit
information on proposed project emissions and the corresponding effects
on air quality and the environment.
370. The Commission stated in the NOPR that, to fully evaluate the
effects of a proposed project in furtherance of the Commission's
obligations under NEPA,\443\ additional information on emissions, air
quality, and environmental noise is necessary. Therefore, the
Commission proposed to add a new resource report, Resource Report 11--
Air quality and environmental noise, in Sec. 380.16(m). As proposed,
the report 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,\444\ the NOPR also proposed to establish a noise
limit for proposed substations and appurtenant facilities as
experienced at pre-existing noise-sensitive areas, such as schools,
hospitals, or residences.
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\443\ 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. 87, 97 (1983).
\444\ 18 CFR 380.12(k)(4)(v)(A) (2023).
---------------------------------------------------------------------------
371. 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,\445\ 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.
---------------------------------------------------------------------------
\445\ 42 U.S.C. 7401 et seq.
---------------------------------------------------------------------------
372. 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 of 55
decibels on the A-weighted scale at any pre-existing noise-sensitive
area.\446\ 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.
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\446\ 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.
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ii. Comments
373. Multiple commenters express support for the inclusion of the
new Air quality and environmental noise resource report, stating that
the Commission is well within its statutory authority to adopt NEPA
regulations that include information needed to perform air quality
analyses.\447\
[[Page 46724]]
Conversely, Chamber of Commerce states that the Commission should
remove the Air quality and environmental noise resource report because
it is unclear what emissions result from the direct operation of a
transmission line, and the focus on any such emissions lacks
congressional direction.\448\
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\447\ Arizona Game and Fish Comments at 2; Public Interest
Organizations Comments at 108-114; CATF Comments at 14; Los Angeles
DWP Comments at 4-5.
\448\ Chamber of Commerce Comments at 3.
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374. ClearPath opposes the proposal to estimate emissions from the
project, including reasonably foreseeable emissions, because the
requirements are too vague to be met or understood by applicants \449\
and ELCON recommends that the Commission remove the mitigation
requirements.\450\ ACORE and ACEG recommend that the Commission apply
the ``rule of reason and the concept of proportionality'' to emissions
requirements so as not to require an in-depth disclosure of emissions
for small projects.\451\
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\449\ ClearPath Comments at 7-8.
\450\ ELCON Comments at 9-10.
\451\ ACORE Comments at 5 (citing CEQ's Interim Guidance on
Consideration of Greenhouse Gas Emissions and Climate Change, 88 FR
1196 (Jan. 9, 2023) (CEQ's Interim GHG Guidance)); ACEG Comments at
19-20 (same).
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375. Policy Integrity requests that the Commission clarify that the
analysis of alternatives under NEPA include upstream emissions from
changes to power-system operations as these changes are reasonably
foreseeable and essential to the Commission's public interest
determination under the FPA.\452\ Similarly, Sabin Center and Policy
Integrity recommend requiring that applicants provide an estimate of
both direct and indirect emissions, including upstream emissions
associated with upstream electric generation facilities.\453\
Conversely, Representatives McMorris Rodgers and Duncan question what
specific statutory authority the Commission is relying upon to require
the estimation of upstream emissions.\454\
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\452\ Policy Integrity Comments at 2 and 4-17.
\453\ Sabin Center Comments at 2 and 6-8; Policy Integrity
Comments at 12-17.
\454\ Representatives McMorris Rodgers and Duncan Comments at 2.
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376. Several commenters request that the Commission consider a
transmission project's effect on greenhouse gas (GHG) emissions or
climate change as part of its NEPA reviews.\455\ ACEG also recommends
that along with the ``rule of reason'' for emissions disclosure, the
Commission should consider the air quality benefits from a project due
to connection of renewable energy projects onto the grid.\456\ Several
commenters state that the Commission or the applicant should include
information on how a transmission project would impact the climate due
to upstream GHG emissions from the generation of electricity--and the
Commission's FPA determination should consider this analysis.\457\ The
commenters indicate that data and models exist to estimate these
changes and constitute a reasonably foreseeable impact. Conversely,
Senator Barrasso states that the Commission should not apply CEQ's
Interim GHG Guidance to electric transmission facility reviews,
questioning its applicability to the Commission as an independent
agency.\458\
---------------------------------------------------------------------------
\455\ Sabin Center Comments at 2 and 5-8; Public Interest
Organizations Comments at 108-114; CATF Comments at 16 (recommending
that the Commission follow the CEQ's Interim GHG Guidance).
\456\ ACEG Comments at 19-20.
\457\ Sabin Center Comments at 2 and 5; Public Interest
Organizations Comments at 108-114; Policy Integrity Comments at 2
and 4-17.
\458\ Senator Barrasso Comments at 2 and 6.
---------------------------------------------------------------------------
377. Policy Integrity states that the Commission should explicitly
require that cumulative impacts analyses include increased exposure to
criteria pollutants even when the overall modeled impacts remain below
the Clear Air Act's National Ambient Air Quality Standards
(NAAQS).\459\ It notes that the NAAQS are not set at a level of zero
risk, and that sub-NAAQS impacts can be especially significant in
environmental justice communities with certain sensitive receptors.
Additionally, Policy Integrity requests that the Commission consider
the health impacts that environmental justice communities face under
higher levels of criteria pollutants, including from power-system
impacts, even when the NAAQS are not exceeded.\460\
---------------------------------------------------------------------------
\459\ Policy Integrity Comments at 43-44.
\460\ Policy Integrity Comments at 44.
---------------------------------------------------------------------------
378. Interior and Arizona Game and Fish recommend considering the
effect of noise from the proposed project on wildlife and habitat.\461\
In regard to the effects of noise in sensitive wildlife habitats on
threatened and endangered species, Interior recommends that the
Commission require applicants to address wildlife-specific noise
thresholds, like those specific to sage grouse and other avian species
that may be relevant in significant wildlife areas.
---------------------------------------------------------------------------
\461\ Interior Comments at 1; Arizona Game and Fish Comments at
2.
---------------------------------------------------------------------------
iii. Commission Determination
379. We adopt the NOPR's proposal to add Resource Report 11--Air
quality and environmental noise with one modification to clarify noise
compliance standards. We agree with commenters that the Commission's
authority to require submission of information to assess the potential
for air quality and environmental noise impacts from the development of
an energy infrastructure project is well-established under law, and
necessary for the Commission to achieve its statutory obligations under
the FPA, NEPA, and the Clean Air Act.
380. In response to the Chamber of Commerce's comments, we clarify
that the Commission is required under NEPA to consider impacts from the
proposed project that are reasonably foreseeable.\462\ While the scope
of project impacts that are reasonably foreseeable is a fact-specific
determination, we note that such impacts may include emissions due to
construction, operation, and maintenance of proposed transmission
facilities.
---------------------------------------------------------------------------
\462\ 42 U.S.C. 4332(2)(C).
---------------------------------------------------------------------------
381. In addition to NEPA, the Commission has further
responsibilities under the Clean Air Act.\463\ Specifically, under
EPA's General Conformity regulations,\464\ the Commission must address
whether an action will result in construction or operation emissions
that exceed de minimis thresholds in areas designated as having poor or
recovering air quality.
---------------------------------------------------------------------------
\463\ 42 U.S.C. 7506(c).
\464\ 40 CFR 93.150-93.165 (2023).
---------------------------------------------------------------------------
382. We are adopting the proposed requirement for applicants to
provide an estimate of reasonably foreseeable emissions from
construction, operation, and maintenance of the project facilities to
ensure that the Commission meets its NEPA obligation to take a ``hard
look'' at environmental impacts and so that the Commission can satisfy
its Clean Air Act obligations. In response to ELCON's comments, we
clarify that the Air quality and environmental noise resource report
does not require an applicant to mitigate impacts, but rather requires
the applicant to submit information about any proposed mitigation of
impacts. We also clarify, in response to ACORE's and ACEG's comments,
that the necessary analysis of emissions impacts will vary based on the
factual circumstances, including whether such impacts are reasonably
foreseeable.\465\
---------------------------------------------------------------------------
\465\ We will not opine on the applicability of CEQ's Interim
GHG Guidance in this final rule, which relates to the Commission's
own evaluation of GHG emissions and not the information that
applicants must file in the resource report.
---------------------------------------------------------------------------
383. We disagree that upstream emissions, including GHGs, from a
proposed project should always be provided by the applicant. As noted
above, the proposed Air quality and environmental noise resource report
requires applicants to estimate the
[[Page 46725]]
reasonably foreseeable emissions from the proposed project, and the
scope of project effects that are reasonably foreseeable is a fact-
specific determination made on a case-by-case basis. We find that the
NOPR's proposed regulations are sufficient to afford the flexibility
needed for applicants to include the appropriate scope of emissions to
support the Commission's NEPA analysis, which will use relevant and
applicable guidance at the time of each analysis. If upstream emissions
are determined, based on the factual circumstances, to be reasonably
foreseeable and caused by the proposed project, the Commission may
request any needed information and assess those emissions under NEPA.
384. We decline Policy Integrity's request to specify the content
of cumulative impacts analyses because Policy Integrity's comments
appear to focus on the Commission's cumulative impact analyses under
NEPA and not the information that applicants must file in the resource
report. The proposed Air quality and environmental noise resource
report requires sufficient information for Commission staff to review
the magnitude and nature of emissions on a project-by-project basis to
determine whether those emissions will have an impact on, among other
things, local and regional air quality and environmental justice
communities. If case-specific circumstances require more information to
address cumulative air quality impacts, Commission staff may request
supplemental information from the applicant.
385. We decline to adopt specific requirements in the Air quality
and environmental noise resource report to address wildlife-specific
noise impacts. We note that Commission staff consults with relevant
resource agencies to identify potential impacts, including noise
impacts, on sensitive habitats and federally listed threatened or
endangered species during the NEPA review process and the consultation
process under section 7 of the Endangered Species Act \466\ for a
proposed project. Accordingly, impacts on wildlife and wildlife-
specific noise thresholds are best considered on a case-by-case basis
while working with applicable agencies.
---------------------------------------------------------------------------
\466\ 16 U.S.C. 1536(a)(2).
---------------------------------------------------------------------------
386. Finally, this final rule modifies proposed Sec.
380.16(m)(4)(i)(D) to clarify the applicant's responsibilities
regarding operational noise estimates and applicable State and local
noise regulations, consistent with the Commission's noise analyses in
natural gas proceedings.\467\ Specifically, we clarify that the
applicant must demonstrate that noise attributable to any proposed
substation or appurtenant facility does not exceed a day-night sound
level of 55 decibels on the A-weighted scale at any pre-existing noise
sensitive area and compare the proposed project's operational noise
estimates with applicable State and local noise regulations.
---------------------------------------------------------------------------
\467\ Commission staff routinely asks applicants in natural gas
proceedings to provide information about State and local noise
regulations. See, e.g., Commission staff, Environmental Data
Request, Docket No. CP16-486, at 7 (issued Oct. 7, 2016) (Question
No. 6); Commission staff, Environmental Data Request, Docket No.
CP18-548, at 15 (issued Dec. 18, 2018) (Question No. 60); see also
FERC, Guidance Manual for Environmental Report Preparation--Volume.
1, at 4-130 (Feb. 2017), https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf.
---------------------------------------------------------------------------
h. Resource Report 12--Alternatives
i. NOPR Proposal
387. This resource report requires the applicant to describe
alternatives to the project, including the ``no action'' alternative,
and to compare the environmental impacts of such alternatives. In the
NOPR, the Commission proposed only minor, clarifying edits to this
resource report.
ii. Comments
388. California Commission states that the Commission should
consider non-wire alternatives.\468\ Similarly, North Carolina
Commission and Staff urge the Commission to require applicants to
demonstrate that the project is preferable to reasonably available
alternatives to reduce congestion, including additional generation,
non-wire alternatives, and other less-intrusive or less-costly
transmission projects.\469\
---------------------------------------------------------------------------
\468\ California Commission Comments at 4.
\469\ North Carolina Commission and Staff Comments at 14.
---------------------------------------------------------------------------
389. Public Interest Organizations advocate for a robust
consideration of alternatives, and request that the Commission amend
its regulations to require the consideration of accomplishing the
proposed objectives of a transmission project through the use of other
systems or energy conservation, and require an analysis of alternative
routes, similar to the Commission's requirement for natural gas
pipeline projects.\470\ Commenters further state that although the
Commission may only approve transmission projects within National
Corridors, considering alternative routes outside of National Corridors
is still necessary, and that the Commission should ensure that
alternatives proposed by the public during the NEPA process and those
developed within the State siting process are considered.\471\ Noting
that many States require the consideration of multiple routes, OMS
seeks clarity on whether the Commission will evaluate multiple routes
and how the Commission defines alternatives.\472\
---------------------------------------------------------------------------
\470\ Public Interest Organizations Comments at 123-125.
\471\ California Commission Comments at 7; Public Interest
Organizations Comments at 123-125.
\472\ OMS Comments at 5.
---------------------------------------------------------------------------
390. The Yurok Tribe states that the Commission must require
consideration of alternatives that do not negatively affect Tribes,
including alternative routes or significant mitigation measures.\473\
The Yurok Tribe further requests the Commission require among the
alternatives at least one alternative that includes mitigation measures
for which Tribes have communicated explicit support.\474\ The Yurok
Tribe states that a robust study of alternatives is critical not only
to NEPA compliance, but also to implement the FPA's mandate that
approved projects be ``sound national energy policy'' and ``consistent
with the public interest.'' \475\ The Yurok Tribe states that
consideration of alternatives put forth by Tribes is a fundamental part
of the NEPA process, the Tribal consultation process, and the Federal
trust duty. Finally, the Yurok Tribe states that it would be
antithetical to the rulemaking for the Commission to not incorporate a
requirement to consider any alternatives put forth by Tribes and not
provide in-depth explanation if that alternative is not pursued.\476\
---------------------------------------------------------------------------
\473\ Yurok Tribe Comments at 40-42.
\474\ Id.
\475\ Id. at 41.
\476\ Id. at 41-42.
---------------------------------------------------------------------------
391. Impacted Landowners and Rail Electrification Council state
that the Commission should require at least one alternative exploring
the use of existing road or rail rights-of-way, including the
consideration of buried transmission lines to reduce environmental and
economic impacts, and reliability and safety hazards.\477\ Rail
Electrification Council argues that the consideration of proposed
transmission lines within or alongside existing rights-of-way serves as
a means of mitigating or avoiding altogether potentially adverse
environmental, socio-economic, reliability, or other impacts of a
project; promotes an efficient use of resources; advances regional
plans; and averts or
[[Page 46726]]
minimizes undue harm to communities.\478\
---------------------------------------------------------------------------
\477\ Impacted Landowners Comments at 18; Rail Electrification
Council Comments at 7-9.
\478\ Rail Electrification Council Comments at 8 (referencing
https://nextgenhighways.org/; see also ACEG, Report: Recommended
Siting Practices for Electric Transmission Developers, Sec. 4 ``Co-
Location in Existing Rights-of-Way'' (Feb. 2023), https://cleanenergygrid.org/portfolio/recommended-siting-practices-electric-transmission-developers/).
---------------------------------------------------------------------------
392. Conversely, Public Interest Organizations state that the
Commission's regulations should clarify how the requirement to consider
using existing rights-of-way can be rendered more equitable through the
consideration of alternatives that mitigate impacts to communities and
habitats that already bear burdens from existing infrastructure.\479\
Public Interest Organizations notes that, when facilities are located
in existing rights-of-way, the NEPA analysis must include alternatives
that reduce cumulative impacts in these rights-of-way.
---------------------------------------------------------------------------
\479\ Public Interest Organizations Comments at 130-131.
---------------------------------------------------------------------------
iii. Commission Determination
393. We adopt the NOPR's proposal to make minor, clarifying edits
to the Alternatives resource report. As discussed below, we find it
unnecessary to add new requirements to this report as suggested by
commenters.
394. In response to comments regarding non-wire, system, and energy
conservation alternatives; multiple route alternatives; alternatives
that use existing rights-of-way; alternatives outside of National
Corridors; and alternatives put forth by Tribes and other stakeholders,
NEPA requires the Commission to consider and discuss only reasonable
alternatives.\480\ Based on the Commission's experience in hydropower
and natural gas pipeline proceedings, the range of reasonable
alternatives can best be determined based upon the facts of a specific
siting proposal. Under NEPA, an alternative that the Commission
considers must be able to meet the action's purpose and need and must
be technically and economically feasible (i.e., not merely
speculative), both which vary based on the circumstances.\481\ We
therefore decline requests to determine, on a generic basis, reasonable
alternatives that must be analyzed in every case.
---------------------------------------------------------------------------
\480\ See American Rivers v. FERC, 201 F.3d 1186, 1200 (9th Cir.
2000).
\481\ See 42 U.S.C. 4332(C)(iii) (as amended by the Builder
Act).
---------------------------------------------------------------------------
395. In response to comments requesting that the Commission's
regulations include information and findings regarding alternatives as
developed within the State siting process, we again note that the
Commission will consider all reasonable alternatives raised in a
Commission proceeding.
i. Resource Report 13--Reliability and Safety
i. NOPR Proposal
396. This resource report 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.\482\
---------------------------------------------------------------------------
\482\ 18 CFR 380.16(l).
---------------------------------------------------------------------------
397. In the NOPR, the Commission proposed to add a requirement that
the Reliability and safety resource report include a discussion of any
proposed measures intended to ensure that the facilities proposed by
the applicant would be resilient with respect to future climate change
impacts. The Commission also proposed 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. Finally, given the proposed addition
of a new Air quality and environmental noise resource report, the NOPR
also proposed to eliminate a redundant requirement from the Reliability
and safety resource report that the applicant must indicate the noise
level generated by the transmission line.
ii. Comments
398. Sabin Center recommends that the Commission require applicants
to submit information on expected future climate change impacts and the
proposed project's risk from and resilience to future climate change
impacts.\483\
---------------------------------------------------------------------------
\483\ Sabin Center Comments at 2, 9-10; National Wildlife
Federation Action Fund Comments at 1; National Wildlife Federation
Outdoors Comments at 1.
---------------------------------------------------------------------------
399. Impacted Landowners express concern about the impact on
workers and farmers from exposure to the electromagnetic fields from
proposed transmission lines, which would be greater than the sporadic
exposure to the public, and request that this additional hazard be
considered.\484\
---------------------------------------------------------------------------
\484\ Impacted Landowners Comments at 18.
---------------------------------------------------------------------------
400. Impacted Landowners state that this resource report should be
expanded to address the applicant's efforts to prevent intentional
physical acts to destroy electric infrastructure.\485\ Additionally,
Impacted Landowners recommend that this resource report explore the
potential for the increased reliability and safety of transmission
lines when buried on existing linear rights-of-way or installed under
bodies of water.\486\
---------------------------------------------------------------------------
\485\ Id. at 18-19.
\486\ Id.
---------------------------------------------------------------------------
iii. Commission Determination
401. We adopt the NOPR's proposed changes to the Reliability and
safety resource report. No commenter raised concerns with the proposed
changes, and we find that requiring this additional information will
support the evaluation of the reliability and safety of proposed
projects. As discussed below, we find it unnecessary to add new
requirements to this report in response to comments.
402. In response to comments regarding future climate change
impacts, no additional changes to the regulations are needed because
Sec. 380.16(o)(3), as proposed and adopted herein, requires applicants
to disclose any proposed measures to ensure that the project facilities
would be resilient against future impacts--such as subsidence, slope
slumping, wildfires, flooding, and storms--that could be exacerbated by
climate change. As part of the NEPA analysis, Commission staff would
evaluate the site-specific risks of the existing and future environment
on the proposed facilities.
403. As to Impacted Landowners' comments urging consideration of
impacts from situational exposure to electromagnetic fields, we decline
to adopt specific requirements in the resource reports. The EPA \487\
and the National Institute of Environmental Health Sciences \488\ have
concluded that studies have not consistently shown that exposure to
electromagnetic fields, even for workers over a typical workday,
constitutes a carcinogenic risk. Therefore, we find it more appropriate
to address related concerns as they are raised on a project-specific
basis.
---------------------------------------------------------------------------
\487\ EPA, Electric and Magnetic Fields from Power Lines,
https://www.epa.gov/radtown/electric-and-magnetic-fields-power-lines.
\488\ National Institute of Environmental Health Sciences, EMF
Electric and Magnetic Fields Associated with the Use of Electric
Power (June 2002), https://www.niehs.nih.gov/health/topics/agents/emf.
---------------------------------------------------------------------------
404. Similarly, regarding intentional physical attacks on
infrastructure, we
[[Page 46727]]
decline to adopt additional requirements in the resource report. Based
on our experience in natural gas and hydroelectric proceedings, the
risk and potential impact of intentional physical attacks are more
appropriately analyzed on a project-specific basis. As part of the NEPA
analysis for a particular project, Commission staff would identify the
impact of the proposed facilities on public safety risk. Additionally,
staff would analyze reasonable project-specific alternatives, such as
undergrounding transmission lines. During this analysis, each
alternative's impact on public safety would be considered.
j. Cumulative Impacts
i. NOPR Proposal
405. In addition to the substance of the individual resource
reports described above, existing Sec. 380.16 includes general
requirements that apply to each resource report. In the NOPR, the
Commission proposed a revision to Sec. 380.16(b)(3) 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.\489\
---------------------------------------------------------------------------
\489\ See 40 CFR 1508.1(g)(3) (2023).
---------------------------------------------------------------------------
ii. Comments
406. Several commenters request that the Commission apply a robust
cumulative impacts analysis when reviewing transmission proposals and
minimize and mitigate impacts on wildlife, with clear evaluation
methodologies informed by the most updated data and best available
science, including Indigenous Knowledge and information from local
communities.\490\ Arizona Game and Fish encourages the Commission to
further clarify that the cumulative effects identified under
380.16(b)(3) consider all known or potential projects that could occur
within the vicinity of the transmission line and potential impacts on
natural resources, including wildlife habitat and fragmentation.\491\
---------------------------------------------------------------------------
\490\ National Wildlife Federation Comments at 2; National
Wildlife Federation Action Fund Comments at 1; National Wildlife
Federation Outdoors Comments at 1.
\491\ Arizona Game and Fish Comments at 2.
---------------------------------------------------------------------------
407. The Yurok Tribe states that the Commission must recognize a
broad range of cumulative impacts.\492\ The Tribe indicates that
fragmented lands are a form of cumulative environmental injustice often
experienced by Tribes; therefore, the cumulative effects analyses must
also consider the cumulative disruption that projects can cause to
cultural resources, cultural landscapes, and sacred sites.\493\ The
Tribe further claims that the Commission must evaluate a transmission
project's impacts in the context of all prior harms that Tribes' lands,
cultural resources, and cultural landscapes have sustained, and that to
properly study cumulative effects, the Commission must build in time
for Tribal feedback in the development and review of NEPA
documents.\494\ Public Interest Organizations also indicate that
placing new infrastructure in existing rights-of-way can exacerbate
existing impacts on habitats and communities, which may already bear
disproportionate burdens.\495\
---------------------------------------------------------------------------
\492\ Yurok Tribe Comments at 39-40.
\493\ Id. at 39.
\494\ Id. at 39-40.
\495\ Public Interest Organizations Comments at 126-131.
---------------------------------------------------------------------------
iii. Commission Determination
408. We adopt the revision to Sec. 380.16(b)(3) as proposed in the
NOPR. As proposed and adopted herein, Sec. 380.16(b)(3) requires each
resource report to identify the effects of construction, operation, 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. We find this
language appropriately defines the scope of cumulative impact analyses,
as is defined in CEQ's NEPA regulations.
409. We acknowledge the Commission's responsibility to conduct a
cumulative impact analysis independent from the applicant's input,
consistent with the Commission's responsibilities under NEPA and CEQ's
regulations. The scope of each cumulative impact analysis, including
other projects to consider, past Tribal harms, and the specific
resources that may be impacted, will vary on a case-by-case basis.
410. In response to comments, we note that concerns regarding
fragmented lands and siting new infrastructure in existing rights-of-
way as potential forms of cumulative environmental injustice and
disproportionate burdens will be addressed in project-specific
proceedings. Commission staff would evaluate these concerns, as
appropriate, in its cumulative impacts analysis pursuant to NEPA.
5. Revisions to 18 CFR 380.13 and 380.14
411. We adopt the NOPR's proposed amendments to 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. As the Commission explained in the NOPR, the prior
omission of these cross-references appears to be an oversight. We also
adopt the NOPR's proposed revision to Sec. 380.14 to correct the legal
citation for section 106 of the NHPA,\496\ following the act's
recodification in title 54 of the U.S. Code.
---------------------------------------------------------------------------
\496\ 54 U.S.C. 306108.
---------------------------------------------------------------------------
III. Information Collection Statement
412. The Paperwork Reduction Act \497\ 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 contained in final rules published in the Federal
Register.\498\ 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.
---------------------------------------------------------------------------
\497\ 44 U.S.C. 3501-3521.
\498\ See 5 CFR 1320.12 (2023).
---------------------------------------------------------------------------
413. Public Reporting Burden: The Commission is revising its
regulations governing applications for permits to site transmission
facilities under section 216 of the FPA. This final rule modifies
certain reporting and recordkeeping requirements included in FERC-729
(OMB Control No. 1902-0238).\499\
---------------------------------------------------------------------------
\499\ FERC-729 includes the reporting and recordkeeping
requirements for ``Electric Transmission Facilities.''
---------------------------------------------------------------------------
414. The 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 revisions are
also intended 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
revisions have information collection implications. For example, the
final rule requires 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 submit monthly
[[Page 46728]]
compliance updates during the pre-filing and application review
processes; \500\
---------------------------------------------------------------------------
\500\ 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, as part of the Project Participation
Plan, an Environmental Justice Public Engagement Plan describing
completed and planned targeted outreach to environmental justice
communities;
Develop and file, as part of the Project Participation
Plan, a Tribal Engagement Plan describing completed and planned
targeted outreach to identified Indian Tribes;
include in mailed notifications to landowners written
translations under certain circumstances, publish project notifications
in online or hard copy periodicals and submit the same to available
county and municipal government online bulletin boards, and provide the
Commission with proof of publication;
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 revisions represent an increase in information collection
requirements and burden for FERC-729.
415. The Commission recognizes that some of the information
collection activities proposed in the NOPR and updated in this final
rule are novel. Therefore, the Commission sought comments on the burden
hours and costs associated with the requirements contained in the NOPR.
---------------------------------------------------------------------------
\501\ We consider the filing of an application, including the
mandatory pre-filing information, to be a ``response.''
\502\ The estimates for cost per response are derived using the
following formula: Average Burden Hours per Response * $100 per Hour
= Average Cost per Response. The hourly cost figure is the FY2024
FERC average annual salary plus benefits ($207,786/year or $100/
hour). Commission staff estimates that industry costs for salary
plus benefits are similar to Commission costs. We note that the NOPR
provided cost estimates in 2022 dollars.
\503\ Notwithstanding that compliance with the Applicant Code of
Conduct is voluntary, we are providing the estimated burden hours
associated with such compliance.
\504\ After implementation of this final rule, we estimate one
application for a permit to site electric transmission facilities
will be filed per year.
\505\ This category covers the updates to the project
notification requirements in Sec. 50.4(c) that require an applicant
to provide written translation under certain circumstances, publish
project notifications in other appropriate print and digital media
outlets in addition to newspaper publication, submit proof of
publication, and include additional material in the project
notifications mailed to affected landowners (e.g., the Landowner
Bill of Rights).
\506\ This category covers the 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.
\507\ This category covers additional 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), a reduction in burden (eliminating the requirement
that an applicant provide seven paper copies of an application,
exhibits, and other submittals), and no change in burden (revising
the requirement to provide proposals for prospective third-party
contractors). We note that eight burden hours that the NOPR reported
in this category have been relocated to ``Project Notification
Requirements,'' a new category added to reflect several project
notification requirements adopted in this final rule.
\508\ This category covers a variety of updates to Sec. 380.16
of the Commission's regulations that require an applicant to develop
and submit 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.
---------------------------------------------------------------------------
416. The estimated burden and cost for the requirements contained
in this final rule follow.
Annual Changes Resulting From the Final Rule in Docket No. RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Number of responses \501\ Total number of Avg. burden hrs. & cost per Total annual burden hours &
respondents per respondent responses response \502\ 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.; $960,000........... 9,600 hrs.; $960,000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Revisions in RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant Code of Conduct \503\.... \504\ 1 1 1 160 hrs; $16,000............... 160 hrs.; $16,000.
Environmental Justice Public 1 1 1 24 hrs.; $2,400................ 24 hrs.; $2,400.
Engagement Plan.
Tribal Engagement Plan............. 1 1 1 24 hrs.; $2,400................ 24 hrs.; $2,400.
Project Notification Requirements 1 1 1 144 hrs.; $14,400.............. 144 hrs.; $14,400.
\505\.
Congestion and System Analysis Data 1 1 1 165 hrs.; $16,500.............. 165 hrs.; $16,500.
\506\.
Other Updates to 18 CFR pt. 50 1 1 1 20 hrs.; $2,000................ 20 hrs.; $2,000.
\507\.
Resource Report: Tribal Resources.. 1 1 1 43 hrs.; $4,300................ 43 hrs.; $4,300.
Resource Report: Environmental 1 1 1 80 hrs.; $8,000................ 80 hrs.; $8,000.
Justice.
Resource Report: Air Quality & 1 1 1 296 hrs.; $29,600.............. 296 hrs.; $29,600.
Environmental Noise.
Information on Visual Impacts...... 1 1 1 104 hrs.; $10,400.............. 104 hrs.; $10,400.
Other Updates to 18 CFR pt. 380 1 1 1 182 hrs.; $18,200.............. 182 hrs.; $18,200.
\508\.
--------------------------------------------------------------------------------------------------------------------
REQUESTED TOTAL................ .............. ............... 11 ............................... 1,242 hrs.; $124,200.
PREVIOUSLY APPROVED PLUS .............. ............... 12 ............................... 10,842 hrs.; $1,084,200.
REQUESTED TOTAL.
--------------------------------------------------------------------------------------------------------------------------------------------------------
417. Titles: FERC-729--Electric Transmission Facilities.
418. Action: Revisions to information collection FERC-729.
419. OMB Control Nos.: 1902-0238 (FERC-729).
420. Respondents: Entities proposing to construct electric
transmission facilities pursuant to the Commission's authority under
section 216 of the FPA.
421. Frequency of Information: Ongoing.
[[Page 46729]]
422. 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 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.
423. Internal Review: The Commission has reviewed the 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.
424. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426 [Attention: Jean Sonneman,
Office of the Executive Director], by email to [email protected]
or by phone (202) 502-8663.
425. 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
426. The Commission is required to prepare an EA or an EIS for any
action that may have a significant effect on the human
environment.\509\ 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.\510\
Because the final rule falls within this categorical exclusion,
preparation of an EA or an EIS is not required.
---------------------------------------------------------------------------
\509\ 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).
\510\ 18 CFR 380.4(a)(2)(ii) (2023).
---------------------------------------------------------------------------
V. Regulatory Flexibility Act
427. The Regulatory Flexibility Act of 1980 (RFA) \511\ generally
requires a description and analysis of final 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 applicable statutes and minimize
any significant economic impact on small entities.\512\ In lieu of
preparing a regulatory flexibility analysis, an agency may certify that
a final rule will not have a significant economic impact on a
substantial number of small entities.\513\
---------------------------------------------------------------------------
\511\ 5 U.S.C. 601-612.
\512\ Id. 603(c).
\513\ Id. 605(b).
---------------------------------------------------------------------------
428. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\514\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\515\ Under SBA's size standards, a
transmission owner covered under the category of Electric Bulk Power
Transmission and Control (NAICS code 221121) \516\ is small if,
including its affiliates, it employs 500 or fewer people.\517\
---------------------------------------------------------------------------
\514\ 13 CFR 121.101 (2023).
\515\ Id. 121.201.
\516\ 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/.
\517\ 13 CFR 121.201 (Sector 22--Utilities).
---------------------------------------------------------------------------
429. 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.\518\ 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.\519\ 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.
---------------------------------------------------------------------------
\518\ Order No. 689, 117 FERC ] 61,202 at P 73.
\519\ Id.
---------------------------------------------------------------------------
430. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this final rule would not have a significant
economic impact on a substantial number of small entities.
VI. Document Availability
431. 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).
432. 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.
433. User assistance is available for eLibrary and the FERC's
website during normal business hours from FERC Online Support at (202)
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].
VII. Effective Date and Congressional Notification
434. These regulations are effective July 29, 2024. The Commission
has determined, with the concurrence of the Administrator of the Office
of Information and Regulatory Affairs of OMB, that this rule is not a
major rule as defined in section 251 of the Small Business Regulatory
Enforcement
[[Page 46730]]
Fairness Act of 1996.\520\ This rule is being submitted to the Senate,
House, Government Accountability Office, and Small Business
Administration.
---------------------------------------------------------------------------
\520\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------
By the Commission.
Issued May 13, 2024.
Debbie-Anne A. Reese,
Acting Secretary.
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.
In consideration of the foregoing, the Commission amends 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 is revised to read as follows:
Authority: 16 U.S.C. 824p; DOE Delegation Order No. S1-DEL-FERC-
2006.
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 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 entities 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 Indian Tribe; 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 paragraphs (a)(4) and (5); and
0
c. Revise paragraphs (b)(1)(ii) and (c)(1) 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 people with limited English proficiency. This
plan must also describe how the applicant will conduct outreach to
environmental justice communities about any potential mitigation
measures.
(5) Includes a Tribal Engagement Plan that addresses all targeted
outreach to identified Indian Tribes. This plan must summarize comments
received from potentially affected Indian Tribes 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. This plan must also describe how the
applicant will engage Indian Tribes about any potential mitigation
measures.
(b) * * *
(1) * * *
(ii) Complete copies of all filed materials are available on the
project website.
* * * * *
(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, and Federal governments and agencies involved in the project;
Indian Tribes; 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
[[Page 46731]]
representatives, an interest in the proposed project. Notification must
be made:
(i) By certified or first class mail, sent:
(A) Within 14 days after the Director notifies the applicant of the
commencement of the pre-filing process under Sec. 50.5(d) (Pre-filing
Notification);
(B) Within 3 business days after the Commission notices the
application under Sec. 50.9 (Application Notification); and
(C) With written translations in the applicable language(s) to all
affected landowners and landowners with a residence within a quarter
mile of the edge of the construction right-of-way of the proposed
project in a census block group in which the number of limited English
proficiency households that speak the same language constitutes at
least five percent of the census block group or 1,000 people, whichever
is less.
(ii) By twice publishing a Pre-filing Notification and Application
Notification, in a daily or weekly newspaper of general circulation in
each county in which the project is located and, as appropriate, Tribal
newspapers and other online or hard copy periodicals of general
circulation serving the affected area. These notifications must also be
submitted to any available county and municipal government online
bulletin boards and other similar community resources. All such
publications and submittals should occur no later than 14 days after
the date that a docket number is assigned for the pre-filing process or
to the application. The applicant must promptly provide the Commission
with proof of any publication.
(2) Project notifications must include specified content.
(i) Any Pre-filing Notification sent by mail or published in a
newspaper, periodical, or county/municipal online bulletin board or
community resource 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 notification need
only refer to the pamphlet and indicate the website address where 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 ongoing State siting
proceeding(s) and describing the status of any such State siting
proceeding(s).
(ii) In addition to the requirements of paragraph (c)(2)(i) of this
section, any Pre-filing 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 these
notifications has not yet been identified when the notifications 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 notification.
* * * * *
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), the first
sentence of paragraph (c)(5), and revise paragraph (c)(6);
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)(10) and
(11), respectively;
0
h. Add new paragraphs (e)(7) and (8) and add paragraph (9); and
0
i. Revise the first sentence of newly redesignated paragraph (e)(11).
The revisions and additions read as follows:
Sec. 50.5 Pre-filing procedures.
* * * * *
(c) * * * 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 engagement with
Federal, State, and local agencies, Indian Tribes, and stakeholders;
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. * * *
(6) Proposals for all prospective third-party contractors from
which Commission staff may make a selection to assist in the
preparation of the requisite NEPA document, if the Director determined
a third-party contractor would be necessary in the Initial Consultation
meeting.
* * * * *
(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
[[Page 46732]]
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) For each transmission planning region that would be crossed by
the proposed project, the most recent regional transmission plan; and
(ii) Expert witness testimony and other relevant information
submitted with the State siting application(s), where applicable.
(8) Within 30 days, file the full reports of the System Impact
Study for the proposed project if the reports are already completed. If
the reports are not already completed at this time, the applicant must
alternatively submit a status report that includes when during the pre-
filing process the full reports will be submitted.
(9) Within 30 days of submission of the full System Impact Study
reports, file a draft Exhibit H--System analysis data required in Sec.
50.7. The pre-filing process will not be concluded until all submittals
required in paragraphs (e)(8) and (9) of this section are submitted.
* * * * *
(11) 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);
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 (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.
[[Page 46733]]
(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 system where the proposed project
will be located and, as relevant, the 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 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 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.
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) and add paragraphs (d)(1)
and (2);
0
c. Remove the word ``permitee'' in the first sentence of paragraph I
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 during the permitting process is one way
to demonstrate to the Commission that such good faith efforts have been
made with respect to affected landowners.
(a) Applicant code of conduct. To promote good faith engagement
with affected landowners, applicants committing to comply with the
Applicant Code of Conduct must for the duration of the pre-filing and
application review processes:
(1) Develop and maintain 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 Notification required by Sec.
50.4(c)(1)(i) and (ii), provide to each affected landowner, prior to,
during, or within 3 business days of 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,
an explanation that affected landowners may request from applicants
copies of discussion log entries that pertain to their property and how
to make such requests, 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
[[Page 46734]]
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, and presents a photo identification
badge at the beginning of any discussion with an affected landowner,
and provides the representative's and applicant'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. Provide an affected landowner upon request a copy of any
discussion log entries that pertain to that affected landowner's
property.
(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, Tribal, 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, Tribal, 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.
(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)(11):
(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)(11), 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.
(4) File monthly status reports providing the information required
in paragraphs (b)(2) and (3) of this section, for the duration of the
application review process.
(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 recordkeeping, information-sharing, or other
conduct;
(iii) An explanation of how the alternative method is equal to or
better than 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 a new paragraph (f).
The addition reads as follows:
Sec. 380.2 Definitions and terminology.
* * * * *
(f) Environmental justice community means any 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'' 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 reference ``(16 U.S.C. 470(f))'' in the first sentence
and add in its place the reference ``(54 U.S.C. 306108)''; and
0
b. Add ``or Sec. 380.16(f), as applicable'' after the reference
``380.12(f)'' in the second sentence.
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 paragraphs (e)(2) and (3), the first two sentences of
paragraph (e)(4), the first and third sentences of
[[Page 46735]]
paragraph (e)(5), and revise paragraph (e)(6);
0
d. Redesignate paragraphs (e)(7) and (8) as paragraphs (e)(8) and (9);
0
e. Add new paragraph (e)(7);
0
f. Revise newly redesignated paragraphs (e)(8) and (9);
0
g. Revise paragraphs (f)(1)(i), (iii), (iv), and (v), (f)(2)
introductory text, and the first sentence of paragraph (f)(4);
0
h. Revise the first sentence of paragraph (g) introductory text and
paragraphs (g)(2), (3) and (6);
0
i. Redesignate paragraphs (k) through (m) as paragraphs (n) through
(p);
0
j. Redesignate paragraphs (h) through (j) as paragraphs (j) through
(l);
0
k. Add new paragraphs (h) and (i);
0
l. Revise the heading for newly redesignated paragraph (j), remove
``Resource Report 6 must:'' and add in its place ``Resource Report 8
must:'' in newly redesignated paragraph (j) introductory text, and
revise newly redesignated paragraph (j)(3);
0
m. Revise the heading for newly redesignated paragraph (k) and revise
paragraphs (k) introductory text and (k)(2) and (3);
0
n. Add paragraph (k)(4);
0
o. Revise newly redesignated paragraph (l);
0
p. Add new paragraph (m);
0
q. In newly redesignated paragraph (n):
0
i. Revise the heading;
0
ii. Revise the first sentence of the introductory text and remove
``Resource Report 9 must:'' and add in its place ``Resource Report 12
must:'' in the introductory text;
0
iii. Revise the second sentences in paragraphs (n)(2)(i) and (ii);
0
r. Revise the heading for newly redesignated paragraph (o) and its
introductory text, newly redesignated paragraphs (o)(1) through (4),
the first sentence of newly redesignated paragraph (o)(5), and revise
newly redesignated paragraph (o)(7); and
0
s. Revise the heading for newly redesignated paragraph (p), the second
sentence of newly redesignated paragraph (p) introductory text, the
third sentence of newly redesignated paragraph (p)(2), and revise 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, 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) * * *
(2) Describe terrestrial habitats, including wetlands, typical
wildlife habitats and corridors, and rare, unique, or otherwise
significant habitats that might be affected by the proposed action.
Describe typical species that have commercial, recreational, or
aesthetic value.
(3) Describe and provide the acreage of vegetation cover types that
would be affected, including unique ecosystems
[[Page 46736]]
or communities, such as remnant prairie, interior forest, or old-growth
forest, or significant individual plants, such as old-growth specimen
trees. Describe any areas of noxious weeds and non-native species in
the project area.
(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, including migratory birds and bald and golden eagles; 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) Identify migratory bird species and bald and golden eagles that
potentially occur in the vicinity of the project, including bald and
golden eagle nesting and roosting sites, migratory bird flyways, and
any habitat/sites important to migratory bird breeding, feeding, and
sheltering.
(8) Describe proposed, site-specific mitigation measures to
minimize impacts on fisheries; wildlife, including migratory birds and
bald and golden eagles; and vegetation.
(9) 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, including migratory birds and bald and golden eagles;
fisheries; and vegetation, and the applicant's response to the
recommendations.
(f) * * *
(1) * * *
(i) Documentation of the applicant's initial cultural resource
consultations, including engagement with Indian Tribes 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. * * *
* * * * *
(2) Evaluate the impact of any substantial migration of people on
governmental facilities and services and plans to reduce the impact on
the local infrastructure.
(3) Describe on-site manpower requirements and payroll during
construction, operation, and maintenance, including the number of
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
Tribal traditional cultural and religious properties, whether on or off
of any Indian reservation.
(5) Ensure that information made available under this section does
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.
(6) Describe any proposed mitigation measures to avoid or minimize
impacts on Tribal resources, including any input received from Indian
Tribes on the proposed measures and how the input informed the proposed
measures.
(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.
[[Page 46737]]
Provide maps depicting identified environmental justice communities in
relation to the proposed project facilities using localized 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 disproportionate
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 disproportionate 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.
* * * * *
(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 excavating 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.
(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 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.
[[Page 46738]]
(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. Identify,
and justify the selection of, the tools or methodologies used to
develop the information required in 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 (day-night) 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, 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 noise
attributable to any proposed substation or appurtenant facility does
not exceed a day-night sound level (Ldn) of 55 decibels on the A-
weighted scale (dBA) at any pre-existing noise-sensitive area. Compare
the proposed project's operational noise estimates with applicable
State and local noise regulations.
[[Page 46739]]
(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. * * *
* * * * *
(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 appendices will not appear in the Code of
Federal Regulations.
Appendix A--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 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 toll free at 1-866-208-3372) 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.
[[Page 46740]]
Appendix B: Abbreviated Names of Commenters
Advanced Energy United.................. Advanced Energy United.
Alabama Public Service Commission....... Alabama Commission.
American Chemistry Council.............. American Chemistry Council.
American Clean Power Association........ ACP.
American Council on Renewable Energy.... ACORE.
American Farm Bureau Federation, Farm Bureaus.
Illinois Farm Bureau, Iowa Farm Bureau,
Kansas Farm Bureau, Missouri Farm
Bureau Federation, and other State Farm
Bureaus.
Americans for a Clean Energy Grid....... ACEG.
Arizona Game and Fish Department........ Arizona Game and Fish.
California Public Utilities Commission.. California Commission.
Chickahominy Indian Tribe, Nansemond Chickahominy Indian Tribe,
Indian Nation, Rappahannock Indian Nansemond Indian Nation,
Tribe, and Upper Mattaponi Indian Tribe. Rappahannock Indian Tribe,
and Upper Mattaponi Indian
Tribe.
Clean Air Task Force.................... CATF.
Clean Energy Buyers Association......... Clean Energy Buyers.
ClearPath, Inc.......................... ClearPath.
Conservation Law Foundation............. CLF.
Earthjustice, National Wildlife Public Interest Organizations.
Federation, Natural Resources Defense
Council, NW Energy Coalition, Sierra
Club, Sustainable FERC Project, Union
of Concerned Scientists, and WE ACT for
Environmental Justice.
Edison Electric Institute and WIRES..... EEI.
Electricity Consumers Resource Council.. ELCON.
Environmental Defense Fund.............. EDF.
Environmental Law and Policy Center, Environmental Law & Policy
National Audubon Society, and Vote Center.
Solar.
Georgia Public Service Commission....... Georgia Commission.
Impacted Landowners..................... Impacted Landowners.
Institute for Policy Integrity at New Policy Integrity.
York University School of Law.
Kansas Corporation Commission........... Kansas Commission.
Kentucky Public Service Commission...... Kentucky Commission.
Land Trust Alliance..................... Land Trust Alliance.
Los Angeles Department of Water & Power. Los Angeles DWP.
Louisiana Public Service Commission..... Louisiana Commission.
Maryland Public Service Commission...... Maryland Commission.
Michigan Public Service Commission...... Michigan Commission.
National Wildlife Federation Action Fund National Wildlife Federation
(submitting 10,753 comments by fund Members.
supporters) and National Wildlife
Federation Outdoors (submitting 332
comments by hunter and angler members).
National Wildlife Federation, National Wildlife Federation.
Environmental League of Massachusetts,
Montana Wildlife Federation, and Nevada
Wildlife Federation.
New England States Committee on NESCOE.
Electricity.
New Jersey Board of Public Utilities.... New Jersey Board.
New Jersey Division of Rate Counsel, Joint Consumer Advocates.
Maryland Office of the People's
Counsel, and Delaware Division of the
Public Advocate.
New York State Public Service Commission New York Commission.
Niskanen Center......................... Niskanen.
North Carolina Utilities Commission and North Carolina Commission and
North Carolina Utilities Commission Staff.
Public Staff.
North Dakota Public Service Commission.. North Dakota Commission.
Organization of MISO States, Inc........ OMS.
Pennsylvania Office of Consumer Advocate Pennsylvania Consumer
Advocate.
Pennsylvania Public Utility Commission.. Pennsylvania Commission.
Public Utility Commission of Texas...... Texas Commission.
Rail Electrification Council............ Rail Electrification Council.
Sabin Center for Climate Change Law, Sabin Center.
Columbia Law School.
Solar Energy Industries Association..... SEIA.
Southern Company Services, Inc.......... Southern.
U.S. Chamber of Commerce, Global Energy Chamber of Commerce.
Institute.
U.S. Department of the Interior......... Interior.
U.S. Representatives Cathy McMorris Representatives McMorris
Rodgers and Jeff Duncan. Rodgers and Duncan.
U.S. Senator Charles Schumer............ Senator Schumer.
U.S. Senator John Barrasso.............. Senator Barrasso.
Yurok Tribe............................. Yurok Tribe.
[FR Doc. 2024-10879 Filed 5-28-24; 8:45 am]
BILLING CODE 6717-01-P
