Item E-1 | News Release

Good morning, Mr. Chairman and Commissioners.

Item E-1 is a draft Notice of Proposed Rulemaking (NOPR) that proposes to revise the Commission’s regulations, located in 18 CFR Parts 50 and 380, governing applications for permits to site electric transmission facilities under section 216 of the Federal Power Act (FPA).

The authority to site electric transmission facilities has traditionally resided solely with the States.  However, the Energy Policy Act of 2005 established a limited Federal role in electric transmission siting by adding section 216 to the FPA and authorizing the Commission under certain circumstances to issue permits for the transmission facilities in geographic areas that the Department of Energy (DOE) has designated as National Interest Electric Transmission Corridors.  Pursuant to this statutory requirement, in November 2006, the Commission implemented new regulations for section 216 permit applications.  Subsequently, in 2009 and 2011 two court cases vacated key parts of the Commission’s as well as the DOE’s actions to implement the statute. 

On November 15, 2021, the Infrastructure Investment and Jobs Act (IIJA) was signed into law.  Among other things, the IIJA amended FPA section 216 to modify the circumstances under which the Secretary of Energy may designate national corridors and to clarify the circumstances giving rise to the Commission’s jurisdiction.  This draft NOPR proposes revisions to the Commission’s regulations to ensure consistency with the IIJA’s section 216 amendments, to modernize certain regulatory requirements, and to incorporate other various updates and clarifications.

In addition to making various revisions and updates to the Commission’s Parts 50 and 380 regulations, this NOPR proposes four overarching clarifications and additions.  

First, in accordance with the IIJA, the NOPR clarifies the Commission’s siting authority by expressly stating that the Commission may issue a permit for the construction or modification of electric transmission facilities in DOE-designated national corridors if a State has denied an application to site transmission facilities.  

Second, the NOPR announces a proposed change in Commission policy that would eliminate the one-year delay following the submittal of a State application before the Commission’s mandatory pre-filing process may commence.  Instead, the Commission proposes to allow the simultaneous processing of State applications and Commission pre-filing proceedings.  This change will allow applicants to simultaneously pursue approval before a state and the Commission if they so choose.  However, out of respect for State siting processes, the NOPR proposes to provide an additional opportunity for State input before the Commission determines that the pre-filing process is complete and that an application may be filed.  Specifically, one year after the commencement of the Commission’s pre-filing process, if a State has not made a determination on an application, the NOPR proposes to establish a 90-day window for the State to provide comments on any aspect of the pre-filing process, including any information submitted by the applicant.

Third, the IIJA added a new clause requiring the Commission to determine that a permit holder “has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process” as a precondition to the permit holder acquiring the necessary right-of-way by eminent domain.  The draft NOPR proposes that one way for an applicant to demonstrate that it has met the “good faith efforts” standard is to elect to comply with an Applicant Code of Conduct in its communications with affected landowners.  The Applicant Code of Conduct includes particular recordkeeping and information-sharing requirements for engagement with affected landowners, as well as more general prohibitions against certain misconduct in such engagement.  Although a commitment to the Applicant Code of Conduct is voluntary, an applicant that chooses not to comply with the Applicant Code of Conduct must specify its alternative method of demonstrating that it meets the good faith efforts standard.  The NOPR also proposes to require prospective applicants to provide additional information, including a Landowner Bill of Rights, to affected landowners in the pre-filing participation notice to ensure affected landowners are informed of their rights in their dealings with the applicant, in Commission proceedings, and in eminent domain proceedings.

Fourth, the draft NOPR proposes to add three resource reports to the application including an Environmental Justice Resource Report, a Tribal Resources Report, and an Air Quality and Environmental Noise Resource Report. 

The Environmental Justice Resource Report would require information that identifies environmental justice communities affected by the project and discusses project impacts. To help ensure that applicants actually consider impacts to EJ communities, applicants must describe any proposed mitigation measures intended to avoid or minimize impacts on environmental justice communities.  In addition to the Environmental Justice Resource Report, the Commission is also proposing to require an applicant to develop and file an Environmental Justice Public Engagement Plan early in the pre-filing process to describe the applicant’s completed and planned outreach activities.

The Tribal Resources Report would consolidate existing requirements that an applicant submit information describing the project’s effects on Tribes, Tribal lands, and Tribal resources.  In addition, the NOPR proposes to require an applicant to identify potentially-affected Tribes and to describe the impacts of project construction, operation, and maintenance on Tribes and Tribal interests.

The Air Quality and Environmental Noise Resource 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.  The NOPR also proposes to establish a noise limit for proposed substations and appurtenant facilities at pre-existing noise-sensitive areas, such as schools, hospitals, or residences.

The information provided in these three resource reports, as well as in the other resource reports required in an application, will enable the Commission to fully evaluate the effects of a proposed project in furtherance of our statutory obligations under the FPA and the National Environmental Policy Act (NEPA). 

Finally, the Commission seeks comment on the definitions of the terms “affected landowner” and “environmental justice community,” and what methods of notice beyond mail and newspaper publication might be utilized effectively, and on the Commission’s NEPA regulations pertaining to siting electric transmission facilities.

Comments on the NOPR are due 90 days after publication in the Federal Register. 

Staff would like to thank the entire cross-office team behind this NOPR effort, but particularly Tara DiJohn and Brandon Cherry.

This concludes our presentation.  We are happy to answer any questions you may have.

This page was last updated on December 16, 2022