Rule: Electric Utilities (Federal Power Act) : Interstate Electric Transmission Facilities Site Permit Applications Filing Requirements and Procedures

69440 Federal Register / Vol. 71, No.
231 / Friday, December 1, 2006 / Rules and Regulations
FDC Date State City Airport FDC No. Subject
11/06/06 ...... PA PHILADELPHIA ............... PHILADELPHIA INTL .......................... 6/5487 ILS RWY 27R, AMDT 10.
11/06/06 ...... PA PHILADELPHIA ............... PHILADELPHIA INTL .......................... 6/5488 ILS OR LOC RWY 17, AMDT
6A.
11/06/06 ...... PA PHILADELPHIA ............... PHILADELPHIA INTL .......................... 6/5489 ILS OR LOC RWY 9L, AMDT
4A.
11/06/06 ...... PA PHILADELPHIA ............... PHILADELPHIA INTL .......................... 6/5491 RNAV (GPS) RWY 35, AMDT 1.
11/07/06 ...... TX AUSTIN ........................... AUSTIN-BERGSTROM INTL ............... 6/5492 ILS RWY 17R, AMDT 2A.
11/07/06 ...... MO ST LOUIS ........................ LAMBERT-ST LOUIS INTL ................. 6/5680 ILS RWY 12R, AMDT 21B.
11/13/06 ...... MA HYANNIS ........................ BARNSTABLE MUNI-BOARDMAN/ 6/6061 ILS OR LOC RWY 24, AMDT
POLANDO FIELD. 17A.
11/13/06 ...... MI LANSING ......................... CAPITAL CITY ..................................... 6/6064 NDB OR GPS RWY 28L, AMDT
24.
11/13/06 ...... WA OAK HARBOR ................ WES LUPIEN ....................................... 6/6088 RADAR–1, ORIG.
11/14/06 ...... ME PORTLAND ..................... PORTLAND INTL JETPORT ............... 6/6193 ILS OR LOC RWY 11.
11/14/06 ...... NH PORTSMOUTH ............... PORTSMOUTH INTL AT PEASE ........ 6/6196 VOR OR TACAN OR GPS RWY
34, ORIG–A.
11/14/06 ...... NH PORTSMOUTH ............... PORTSMOUTH INTL AT PEASE ........ 6/6200 VOR OR TACAN RWY 16,
AMDT 5.
[FR Doc. E6–20156 Filed 11–30–06; 8:45 am] ACTION: Final rule John Schnagl, Office of Energy Projects,
BILLING CODE 4910–13–P Federal Energy Regulatory
SUMMARY: The Federal Energy Commission, 888 First Street, NE.,
Regulatory Commission (Commission) is Washington, DC 20426. (202) 502–
DEPARTMENT OF ENERGY implementing new regulations in 8756. john.schnagl@ferc.gov.
accordance with section 1221 of the
Carolyn Van Der Jagt, Office of the
Federal Energy Regulatory Energy Policy Act of 2005 to establish
Commission filing requirements and procedures for General Counsel, Federal Energy
entities seeking to construct electric Regulatory Commission, 888 First
18 CFR Parts 50 and 380 transmission facilities. The regulations Street, NE., Washington, DC 20426.
will coordinate the processing of (202) 502–8620.
[Docket No. RM06–12–000; Order No. 689] carolyn.VanDerJagt@ferc.gov.
Federal authorizations and
Regulations for Filing Applications for environmental review of electric
SUPPLEMENTARY INFORMATION:
Permits to Site Interstate Electric transmission facilities in national
Transmission Facilities interest transmission corridors.
Issued November 16, 2006. DATES:Effective Date: This rule will

AGENCY:Federal Energy Regulatory become effective February 2, 2007.
Commission, DOE. FOR FURTHER INFORMATION CONTACT:
TABLE OF CONTENTS
Paragraph
numbers
I. Background .......................................................................................................................................................................................... 2
II. Discussion .......................................................................................................................................................................................... 11
A. National Interest Transmission Corridors ................................................................................................................................. 11
B. Permit Findings .......................................................................................................................................................................... 14
1. Commission Jurisdiction under 216(b)(1) .......................................................................................................................... 14
a. One Year Clock/Pre-filing ............................................................................................................................................. 16
b. Withholding/Conditioning Approval .......................................................................................................................... 24
c. Other Jurisdictional Issues ........................................................................................................................................... 35
2. Other Findings under 216(b)(2) through (6) ....................................................................................................................... 37
C. Project Participation ................................................................................................................................................................... 45
1. Landowners .......................................................................................................................................................................... 50
2. Stakeholders and Notification ............................................................................................................................................. 60
3. Document Availability ......................................................................................................................................................... 73
4. Participation Process ........................................................................................................................................................... 74
D. Pre-filing ...................................................................................................................................................................................... 90
1. Initial Consultation Issues ................................................................................................................................................... 92
2. Third-party Contractors ....................................................................................................................................................... 100
3. Subsequent Filing Requirements ........................................................................................................................................ 103
4. Lead Agency Issues/Coordinating Federal Permits ........................................................................................................... 105
5. Timeframe for Pre-filing ...................................................................................................................................................... 112
6. Review of Director’s Decisions in Pre-filing ...................................................................................................................... 116
rmajette on PROD1PC67 with RULES1
E. Application Requirements .......................................................................................................................................................... 118

F. Filing Requirements .................................................................................................................................................................... 120
1. State Record ......................................................................................................................................................................... 122
2. Exhibits ................................................................................................................................................................................. 126
a. Exhibit E—Maps ........................................................................................................................................................... 129
b. Exhibit F—Environmental Requirements .................................................................................................................... 130
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Federal Register / Vol. 71, No. 231 / Friday, December 1, 2006 / Rules and Regulations 69441
TABLE OF CONTENTS
Paragraph
numbers
i. Section 380.5-Actions that Require EAs ............................................................................................................... 134

ii. Section 380.6 Actions that Require EISs ............................................................................................................. 135
iii. Section 380.10—Participation in Commission Proceeding ............................................................................... 137
iv. Resource Report 1—General Requirements ........................................................................................................ 138
v. Resource Report 2—Water Use and Quality ........................................................................................................ 142
vi. Resource Report 3-Fish, Wildlife, and Vegetation ............................................................................................. 144
vii. Resource Report 4—Cultural Resources ............................................................................................................ 146
viii. Resource Report 5—Socioeconomics ................................................................................................................ 150
ix. Resource Report 6—Geological Resources .......................................................................................................... 159
x. Resource Report 7—Soils ...................................................................................................................................... 160
xi. Resource Report 8—Land Use, Recreation, and Aesthetics ............................................................................... 162
xii. Resource Report 9—Alternatives ........................................................................................................................ 175
xiii. Resource Report 10—Reliability and Safety ..................................................................................................... 180
xiv. Resource Report 11—Design and Engineering ................................................................................................. 182
c. Exhibit G—Engineering Data ........................................................................................................................................ 185
d. Exhibit H—System Analysis Data ............................................................................................................................... 188
e. Exhibit I—Project Cost and Financing ......................................................................................................................... 192
G. Critical Energy Infrastructure Information ................................................................................................................................ 194
H. Accepting/Rejecting Applications ............................................................................................................................................. 198
I. Hearings ........................................................................................................................................................................................ 199
J. Permit Conditions ........................................................................................................................................................................ 204
K. State and Local Permits ............................................................................................................................................................. 213
L. Subsequent Modifications to Facilities ..................................................................................................................................... 219
M. Definitions .................................................................................................................................................................................. 221
N. Eminent Domain Issues ............................................................................................................................................................. 225
O. Filing Fees/Funding ................................................................................................................................................................... 228
P. Technical Conferences ................................................................................................................................................................ 229
III. Information Collection Statement .................................................................................................................................................... 231
IV. Environmental Analysis ................................................................................................................................................................... 236
V. Regulatory Flexibility Act ................................................................................................................................................................. 237
VI. Document Availability ..................................................................................................................................................................... 238
VII. Effective Date and Congressional Notification .............................................................................................................................. 241
Before Commissioners: Joseph T. Power Act (FPA), providing for Federal because the applicant does not serve
Kelliher, Chairman; Suedeen G. Kelly, siting of electric transmission facilities end-use customers in the State; or (3)
Marc Spitzer, Philip D. Moeller, and under certain circumstances. the State commission or entity with
Jon Wellinghoff. 3. New FPA section 216 requires that siting authority withholds approval of
1. On June 16, 2006, the Federal the Secretary of the Department of the facilities for more than one year after
Energy Regulatory Commission Energy (DOE or Secretary) identify an application is filed or one year after
(Commission) issued a Notice of transmission constraints. It mandates the designation of the relevant national
Proposed Rulemaking (NOPR) in this that the Secretary conduct a study of interest electric transmission corridor,
proceeding.1 In the NOPR, the electric transmission congestion within whichever is later, or the State
Commission proposed regulations in one year of enactment and every three conditions the construction or
accordance with section 1221 of the years thereafter, and that the Secretary modification of the facilities in such a
Energy Policy Act of 2005 (EPAct then issue a report. The Secretary is manner that the proposal will not
2005) 2 to implement filing requirements further empowered to designate certain significantly reduce transmission
and procedures for entities seeking constrained areas as national interest congestion in interstate commerce or is
permits to construct or modify electric electric transmission corridors (National not economically feasible.3
transmission facilities under the Corridors). 5. Additionally, under FPA sections
circumstances set forth in that section. 216 (b)(2) through (6), before issuing a
4. FPA section 216(b) provides that permit the Commission must find that
This Final Rule considers comments the Commission may issue permits to
submitted in response to the NOPR, and the proposed facility: (1) Will be used
construct or modify electric for the transmission of electric energy in
as a result, makes various modifications transmission facilities in a National
to the regulatory text described in the interstate commerce; (2) is consistent
Corridor under certain circumstances. with the public interest; (3) will
NOPR. Following the issuance of this The Commission has the authority to
rule, we will convene regional significantly reduce transmission
issue permits to construct or modify congestion in interstate commerce and
conferences to assist stakeholders in its electric transmission facilities if it finds
implementation. protect or benefit consumers; (4) is
that: (1) A State in which such facilities consistent with sound national energy
I. Background are located does not have the authority policy and will enhance energy
2. On August 8, 2005, EPAct 2005 to approve the siting of the facilities or
became law. Section 1221 of EPAct 2005 to consider the interstate benefits 3 Under FPA section 216(i)(4), the Commission
adds a new section 216 to the Federal expected to be achieved by the may not issue a permit for facilities within a State
construction or modification of the that is a party to an interstate compact establishing
a regional transmission siting agency unless the
1 71 FR 36258 (June 26, 2006); FERC Stats. & Regs. facilities; (2) the applicant is a members of the compact are in disagreement and
¶ 32,605 (2006). transmitting utility but does not qualify the Secretary of the Department of Energy makes
2 Pub. L. 109–58, 119 Stat. 594 (2005). to apply for siting approval in the State certain findings.
69442 Federal Register / Vol. 71, No. 231 / Friday, December 1, 2006 / Rules and Regulations
independence; and (5) will maximize, to states that it expects the study to open 216(c)(2) of the FPA requires that the
the extent reasonable and economical, a dialogue with stakeholders in areas of Commission issue rules specifying the
the transmission capabilities of existing the Nation where congestion is a matter form of the application, the information
towers or structures. of concern, focusing on ways in which to be contained in the application, and
6. New FPA section 216(h)(2) these problems might be alleviated. DOE the manner of service and notice of the
designates DOE as lead agency to states that where appropriate in relation permit application on interested
coordinate all Federal authorizations to the congestion areas, it may designate persons. While the Commission has no
needed to construct proposed electric National Corridors. authority to issue a permit unless a
transmission facilities in National 9. Also on August 8, 2006, several facility is in a National Corridor, this
Corridors. Under FPA section Federal agencies including DOE and the does not affect the Commission’s ability
216(h)(4)(A), to ensure timely efficient Commission entered into a to put in place the filing requirements
reviews and permit decisions, DOE is Memorandum of Understanding on that will apply once National Corridors
required to establish prompt and Early Coordination of Federal are designated. The Commission,
binding intermediate milestones and Authorization and Related therefore, declines to delay issuance of
ultimate deadlines for all Federal Environmental Reviews Required in the Final Rule. The Commission
reviews and authorizations required for Order to Site Electric Transmission believes that prompt issuance of the
a proposed electric transmission Facilities (MOU).7 The purpose of the Final Rule, coupled with regional
facility.4 Section 216(h)(5)(A) of the MOU is to establish a framework for conferences to discuss its
FPA requires that DOE as lead agency, early cooperation and participation that implementation, is in the public interest
in consultation with the other affected will enhance coordination of all and provides timely notice to
agencies, prepare a single applicable land use authorizations, stakeholders of the procedures that will
environmental review document that related environmental, cultural, and apply to applications submitted under
would be used as the basis for all historic preservation reviews, and any FPA section 216.
decisions for the proposed projects other approvals that may be required 13. American Electric Power Service
under Federal law. under Federal law in order to site an Corporation (AEP) requests that the
7. On May 16, 2006, the Secretary electric transmission facility. Commission define what constitutes a
delegated paragraphs (2), (3), (4)(A)–(B), 10. FPA section 216(c)(2) requires that National Corridor and whether the
and (5) of FPA section 216(h) to the the Commission issue rules specifying designation is a permanent one.
Commission as they apply to proposed the form of, and the information to be Massachusetts Energy and Facilities
facilities in designated National contained in, an application for Siting Board (Massachusetts Energy
Corridors for which an application for proposed construction or modification Board) requests that the Commission
authority to construct has been of electric transmission facilities in define the ends, geographic dimensions,
submitted to the Commission.5 National Corridors, and the manner of and specified boundaries for a National
Specifically, the Secretary delegated to service of notice of the permit Corridor. U.S. Department of the Interior
the Commission DOE’s lead agency application on interested persons. The (DOI) also requests clarification on what
responsibilities for the purpose of Commission is implementing those constitutes a National Corridor. The
coordinating all applicable Federal regulations in a new part 50 of existing Commission declines to make such
authorizations and related subchapter B of its regulations. rulings. DOE, not the Commission, is
environmental review and preparing a responsible for designating and defining
single environmental review document II. Discussion
the National Corridors under EPAct
for facilities falling within the A. National Interest Transmission 2005. Thus, it would be inappropriate
Commission’s siting jurisdiction. With Corridors for the Commission to establish an
respect to such projects, the independent definition in the Final Rule
11. As stated, on August 8, 2006, DOE
Commission will establish prompt and or opine on whether a corridor
issued its National Electric
binding intermediate milestones and designation is a permanent one.
Transmission Congestion Study and
ultimate deadlines for the review, and
stated that where appropriate in relation B. Permit Findings
ensure that all Federal permits are
to the congestion areas, it may designate
issued, and reviews are completed, 1. Commission Jurisdiction Under
National Corridors. Once DOE
within a year or as soon as practicable 216(b)(1)
designates a National Corridor, the
thereafter.
Commission has the authority under 14. Under FPA section 216(b)(1), the
8. On August 8, 2006, DOE issued its
FPA section 216(b) to issue permits to Commission has the authority to issue
National Electric Transmission
construct or modify electric permits to construct or modify electric
Congestion Study that examined
transmission facilities in such a corridor transmission facilities if: (A) A State in
transmission congestion and constraints
under certain circumstances. which the transmission facilities are to
and identified affected transmission
12. The Western Interstate Energy be constructed or modified does not
paths in many areas of the nation.6 DOE
Board and Committee on Regional have the authority to—(i) approve the
4 Under FPA section 216(h)(6)(A), if any agency Electric Power Cooperation (Western siting of the facilities; or (ii) consider
has denied a Federal authorization required for a Energy Board) and Western Governor’s the interstate benefits expected to be
transmission facility, or has failed to act by the Association (Western Governors) achieved by the proposed construction
deadline established by the Secretary, the applicant request that the Commission delay or modification of transmission facilities
or any State in which the facility would be located
may file an appeal with the President. issuing the Final Rule until DOE acts on in the State; (B) the applicant for a
5 Department of Energy Delegation Order No. 00– establishing National Corridors. Section permit is a transmitting utility under
004.00A. this Act but does not qualify to apply for
6 Department of Energy, National Electric 7 The other agencies include the Department of a permit or siting approval for the
Transmission Congestion Study, Executive Defense, the Department of Agriculture, the proposed project in a State because the
Summary (2006), http://www.oe.energy.gov/ Department of the Interior, the Department of
energy_policy/epa_sec1221.htm#Timeline (follow commerce, the Environmental Protection Agency,
applicant does not serve end-use
‘‘Congestion Study Executive Summary’’ the Council on Environmental Quality, and the customers in the State; or (C) a State
hyperlink). Advisory Council on Historic Preservation. commission or other entity that has
authority to approve the siting of the commenters contend that the States allowing the Commission to issue a
facilities has—(i) withheld approval for should have the ability to re-start the construction permit one year after the
more than 1 year after the filing of an one-year review period if the applicant State siting process has begun and
application or 1 year after the significantly modifies or makes requiring an expeditious pre-application
designation of the relevant national substantive changes to its application.10 mechanism for all permit decisions
interest electric transmission corridor, The Wilderness Society (Wilderness) under Federal law. Thus, the
whichever is later; or (ii) conditioned its states that the Commission should Commission pre-filing process can
approval in such a manner that the require that the applicant prove that it occur at the same time as parallel State
proposed construction or modification made a good faith effort to comply with proceedings.13 To ensure that needed
will not significantly reduce State siting and permitting infrastructure is built, Congress
transmission congestion in interstate requirements. The Western Energy therefore adopted a statutory scheme
commerce or is not economically Board requests that the Commission that permits parallel proceedings.
feasible. clarify that an applicant who has not 20. While we believe the statute
15. Numerous commenters request obtained the required Federal permit clearly permits parallel Commission-
that the Commission specifically findings in support of a State State processes, after taking into account
address what it will require of application has not filed a complete the comments of State agencies and
applicants to establish the basis and State application. Iowa Board states that other stakeholders, we do not adopt the
supporting rationale for the one-year time period should not include approach proposed in the NOPR.
Commission’s claiming jurisdiction over periods of appellate review. Rather, we adopt an approach that is
proposed electric transmission 17. Several commenters also request more fully respectful of State
facilities.8 Specifically, they request that that the Commission require an jurisdiction.
the Commission clarify how it intends applicant demonstrate how its proposed 21. Although some overlap in State
to determine when the clock starts and application has met the statutory and Federal proceedings is inevitable, as
stops for the one-year time period for requirements for Commission was contemplated by FPA section 216,
State action on siting requests under jurisdiction prior to initiating the pre- we believe that States which have
FPA section 216(b)(1)(C). They also filing process.11 Others request that the authority to approve the siting of
request that the Commission clarify Commission begin the pre-filing process facilities should have one full year to
under what circumstances it will while the State process is ongoing.12 consider a siting application without
determine that a State has withheld 18. Communities Against Regional there being any overlapping
approval and what conditions in a State Interconnect (Communities) contend Commission process. Therefore, we find
authorization the Commission will that permitting the pre-filing process to that, in cases where our jurisdiction
consider sufficient to trigger be initiated simultaneous with the rests on FPA section 216(b)(1)(C),14 the
Commission jurisdiction. The ongoing State process represents pre-filing process should not commence
commenters also request that the nothing more than the Commission’s until one year after the relevant State
Commission generally explain how, and desire to ‘‘pounce’’ at the moment its applications have been filed. This will
when, it will make the determination jurisdiction is triggered. Communities, give the States one full year to process
that it indeed has jurisdiction over a CA Resources, and New York DPS are an application without any intervening
proposed project. concerned that simultaneous filings Federal proceedings, including both the
could result in an unwarranted and pre-filing and application processes.
a. One Year Clock/Pre-Filing massive expenditure of time and Once that year is complete, an applicant
16. Many commenters request that the resources, if it turns out the Commission may seek to commence our pre-filing
Commission specifically address when lacks jurisdiction to consider the process. Thereafter, once the pre-filing
the one-year period for State processing application. Iowa Board contends that process is complete, the applicant may
of an application will commence. They simultaneous filing deprives States of submit its application for a construction
state that the Commission should their authority and conflicts with the permit. We believe this approach most
specify that the one-year clock will not purpose of the law. Senator Wright and adequately addresses State concerns. If
start running until the State determines NARUC note that allowing the pre-filing we determine in the future, however,
that the application submitted to it is process to begin at such an early stage that the lack of a Commission pre-filing
final and in compliance with the State’s prevents the Commission from fully process prior to the end of the one year
filing requirements.9 Several considering the information brought is delaying projects or otherwise not in
forth during the State siting process. the public interest, we will reconsider
8 American Public Power Association (APPA),
19. The Commission appreciates the this issue.
American Transmission Co. (American concerns of the States regarding the
Transmission), California Resources Agency (CA 22. The States also express concern
Resources), Edison Electric Institute (EEI), Kentucky potential for overlap in State and that the one-year time period can be
Public Service Commission (Kentucky PSC), New Commission siting processes. However, abused. For example, an applicant
York Department of Public Service (DPS), New York the language of FPA section 216 might not provide complete information
State Senator Wright (Senator Wright), Southern provides for this potential overlap by
Company Services (Southern Company), Southern to the States in the hopes of frustrating
California Edison Co. (SoCal Edison), Washington their ability to act within one year and,
Energy Facility Site Evaluation Council (SDG&E), Western Energy Board, Public Service hence, invoking the Commission’s
(Washington Council), Western Energy Board, Commission of Wisconsin (Wisconsin PSC), and
Washington Council. jurisdiction. The Commission believes
Western Governors, and the Wilderness Society
(Wilderness). 10 Iowa Board, NARUC, and Wisconsin PSC. such instances should be rare. We also
9 Allegheny Power (Allegheny), California Public 11 CA Resources, Communities, Iowa Board,
Utilities Commission (California PUC), Iowa NARUC, New York PSC, Senator Wright, SoCal 13 The Commission’s pre-filing process is
Utilities Board (Iowa Board), Massachusetts Energy Edison, Washington Council, and Western Energy discussed in section II.D. of this Final Rule.
Board, National Association of Regulatory Utility Board. 14 In all other instances (i.e., where the state does
Commissioners (NARUC), Pennsylvania Public 12 APPA, AEP, Allegheny, Southern Companies, not have jurisdiction to act or otherwise to consider
Utilities Commission (Pennsylvania PUC), Pepco National Grid USA (National Grid), SDG&E, interstate benefits, or the applicant does not qualify
Holdings, Potomac Electric Power Co., Delmarva National Rural Electric Cooperative Association to apply for a permit with the State because it does
Power & Light Co., and Atlantic City Electric Co. (NRECA), and Virginia Electric and Power Co. not serve end use customers in the State), the pre-
(PHI Companies), San Diego Gas & Electric (Virginia Electric). filing process may be commenced at any time.
wish to make clear that we will not extend its process beyond a year for that in addition to giving the
countenance such behavior. The those reasons. Commission jurisdiction to site
Commission expects all potential 25. The Iowa Board and Senator transmission facilities whenever a State
applicants under FPA section 216 to act Wright state that the Commission has ‘‘withheld approval’’ for more than
in good faith as it relates to State should clarify that a State’s timely and a year, FPA section 216(b)(1)(C) also
jurisdiction. Although the Commission lawful denial of a transmission project gives the Commission jurisdiction to act
may exercise jurisdiction in all should not give rise to Commission in instances where a State has approved
instances where a State has withheld jurisdiction. The Iowa Board also construction, but ‘‘conditioned its
approval for more than one year, the contends that any other conclusion approval’’ in such a manner that the
Commission, in determining whether to would allow an applicant to sidestep an proposed construction or modification
do so, will weigh heavily clear evidence adverse State ruling by subsequently is not economically feasible. Since
that an applicant has abused the State requesting Federal jurisdiction. The Congress has provided the Commission
process. Wisconsin PSC asks that the with the authority to intervene in
23. Under the approach adopted Commission clarify that State denial for circumstances where a State has issued
herein, once the one-year time period failure to meet proper State an authorization which will essentially
has elapsed the applicant may requirements does not trigger the prevent a project from going forward, it
commence pre-filing. At the pre-filing withheld approval provision. It claims would not be reasonable to interpret the
consultation required under § 50.5(b) of that this would be a situation where a statute in such a manner that would
the Commission’s regulations, the State agency acted properly and is not leave the Commission without authority
applicant will need to tell Commission guilty of regulatory failure. to intervene in instances where a State
staff the date that it filed its application Communities state that the Commission has expressly denied an application.
and the status of that application. As should not have jurisdiction where the 29. Moreover, legislative history lends
part of the pre-filing consultation, the State denies siting approval for valid support to this interpretation of the
Director of the Office of Energy Projects reasons under State law, such as the statute. Congress devoted substantial
(OEP) will review the applicant’s protection of environmental resources, time to consideration of energy
progress at the State proceeding. After the health and safety of its citizens, or legislation in the years immediately
the initial consultation process, if the if better alternatives are identified prior to the enactment of EPAct 2005. It
Director of OEP determines that there is through the process. is noteworthy that transmission siting
sufficient reason to commence pre- 26. FPA section 216(b)(1)(C) provides language first appeared in legislation
filing, a notice will be issued under jurisdiction to the Commission considered in the House of
§ 50.5(d) of the regulations. To the whenever a State has ‘‘withheld Representatives in 2003. That measure
extent the State proceeding is still approval’’ for more than one year. The (H.R. 6) allowed the Commission to
ongoing, the Commission will host a statute does not explicitly define the full exercise jurisdiction where a State
scoping meeting or technical conference range of State actions that are deemed entity with transmission siting authority
to work with the applicant and the State to be withholding approval. ‘‘has withheld approval, conditioned its
agencies to discuss the need to Nonetheless, to promote regulatory approval in such a manner that the
coordinate, among other things, certainty, we believe it is our proposed construction or modification
simultaneous environmental reviews. responsibility to interpret the statutory will not significantly reduce
We believe that such coordination is language in this proceeding and to give transmission congestion in interstate
appropriate because, in some instances, all parties notice of such interpretation. commerce and is otherwise not
the State may be able to complete its To this end, we believe that a reasonable economically feasible, or delayed final
action while our pre-filing process is interpretation of the language in the approval for more than one year after
ongoing, possibly allowing us to context of the legislation supports a the filing of an application seeking
terminate any proceedings under FPA finding that withholding approval approval * * *.’’ 17 In addition, the
section 216. includes denial of an application. report language accompanying the
b. Withholding/Conditioning Approval 27. Support for this interpretation is above legislative text states, ‘‘The
found in comparing the language added section provides that for such lines,
24. Numerous commenters request by EPAct 2005 as new FPA section persons may obtain a permit from FERC
that the Commission define the criteria 216(b)(1)(C)(i) to that of new FPA and exercise eminent domain if, after
it would use to determine that a State section 203(a)(5), also added by EPAct one year, a State is unable or refuses to
has withheld approval or conditioned 2005. There, in requiring that the site the line.’’ 18 The fact that this
its approval so as to render a project not Commission grant or deny applications precursor to the transmission siting
economically feasible, triggering for approval of certain merger provision of EPAct 2005 distinguished
Commission jurisdiction.15 The Western transactions within 180 days after the ‘‘withholding approval’’ from ‘‘delaying
Energy Board and California PUC application is filed, the statute specifies final approval for more than one year’’
maintain that a State should not be the consequences ‘‘[i]f the Commission and was interpreted to include a State
deemed to have withheld or does not act.’’ The Commission has an ‘‘refusing to site a line’’ supports the
unreasonably conditioned approval if it obligation to construe a statute in such conclusion that ‘‘withholding approval’’
fails to act within one year because a a manner as to give every word some was intended to mean something
project has not received Federal agency operative effect.16 Interpreting the beyond a failure to act.
approvals or because of delays related to phrase ‘‘withhold approval’’ to mean 30. Finally, Section 216(b)(1)(C)(i)
‘‘another provision of Federal law.’’ ‘‘does not act’’ fails to recognize allows the Commission to exercise
California PUC points out that FPA Congress’ use of different words to jurisdiction where a State entity with
§ 216(h)(4)(B) allows the Commission to express its intent. siting authority has ‘‘withheld approval
15 Department of Interior, Iowa Utility Board,

28. Further support for this for more than 1 year after the filing of
Massachusetts Energy Board, National Parks,
interpretation can be found in the fact
17 H.R. 6, 108th Cong. § 16012 (2003).
National Regulatory Commissioners, Pennsylvania
PUC, PJM, Washington Council, Wisconsin PSC, 16 Cooper Industries, Inc. v. Aviall Services, Inc., 18 H.R. Rep No. 108–65 (April 6, 2003) (emphasis
Western Energy Board. 543 U.S. 157, 167 (2004). added).
an application seeking approval The Commission will make a does not have the authority to grant
pursuant to applicable law * * *.’’ If an jurisdictional determination and eminent domain rights for transmission
applicant seeks State siting approval address comments and protests in a facilities, that constitutes the State not
pursuant to applicable law, and the subsequent order issued on the merits of having authority to approve the siting of
State does not grant the application the proposed project. facilities, thus giving a project sponsor
within one year, the approval is 33. Allegheny requests that the immediate access to the Commission’s
withheld, regardless of whether the Commission address whether the jurisdiction. While State law may not
State takes a specific action denying it. following would constitute withholding authorize the taking of property by
Indeed, the term ‘‘withhold’’ in this approval: (1) A State cannot make a eminent domain, if it still has laws that
context means to refrain from granting decision in one year due to State address the siting of electric
approval, and, conversely, the term statutes or rules; (2) the State has transmission facilities, it appears that
‘‘deny’’ is synonymous with declined to establish a procedural the Commission’s jurisdiction will not
‘‘withhold.’’ Webster’s Third New schedule for reaching a decision within attach unless the State fails to act or
International dictionary defines a year; (3) a State commission, after an denies an application as required by
‘‘withhold’’ as ‘‘* * * to desist or elapse of one year, has not acted on an FPA section 216(b)(1)(C). We will,
refrain from granting, giving, or application; and (4) approval is however, consider such issues if, and
allowing * * *.’’ The same dictionary conditioned in an unacceptable manner, when, they arise.
defines ‘‘deny’’ as ‘‘ * * * to refuse to but does not meet the significantly
reduce transmission congestion or not 2. Other Findings Under 216(b)(2)
grant: WITHHOLD’’ [caps in original].
economically feasible test. Wilderness Through (6)
‘‘Denial,’’ similarly, is defined as
‘‘refusal to grant * * *: rejection of states that the Commission should adopt 37. Under FPA sections 216(b)(2)
something requested.’’ Furthermore, detailed standards defining what through (6), the Commission must find
Roget’s International Thesaurus 4th Ed., constitutes an economically infeasible that the proposed facility: (1) Will be
Section 776 (‘‘Refusal’’) at paragraph project or restrictions that prevent a used for the transmission of electric
776.4 lists ‘‘deny, withhold, hold back proposed project from significantly energy in interstate commerce; (2) is
* * *’’ as synonyms. Thus, there is no reducing congestion. Communities consistent with the public interest; (3)
textual or lexical basis for saying that a argue that Commission jurisdiction will significantly reduce transmission
formal denial does not entail refraining should not be triggered simply because congestion in interstate commerce and
to grant or allow (i.e. to withhold). To mitigation measures might increase the protect or benefit consumers; (4) is
say that an official denial does not count costs of the project. DOI also encourages consistent with sound national energy
as a withholding is to say that ‘‘to deny’’ the Commission to look closely at the policy and will enhance energy
means something other than ‘‘to refrain reason that certain conditions were independence; and (5) will maximize, to
from granting,’’ which would not be a imposed on a project. the extent reasonable and economical,
reasonable interpretation. 34. The Commission believes that the transmission capabilities of existing
31. Therefore, the Commission finds these issues cannot be resolved towers or structures.
that when a State fails to act or rejects adequately on a generic basis in this 38. NARUC asserts that the final rule
an application, it has withheld approval rule. Rather, it is important to consider needs to state more clearly how the
and the proposed facility would be all relevant factors presented on a case- Commission will implement all five of
subject to the Commission’s by-case basis. The Commission will, the above criteria. Pacific Gas and
jurisdiction. However, the fact that we therefore, not limit its ability to review Electric Company (PG&E) requests that
possess jurisdiction does not mean that an application on a case-by-case basis the Commission clarify how it intends
it will be exercised in all cases. Rather, by establishing specific criteria that it to measure and analyze sufficient
we retain the discretion, in appropriate will consider in determining if its showings related to consistency with
circumstances, to allow State processes jurisdiction had properly been invoked the public interest and national policy.
to be completed beyond the one-year under FPA section 216(b)(1). DOI and Laura and John Reinhardt
period provided in the statute. Indeed, (Reinhardts) request that the
c. Other Jurisdictional Issues Commission define the criteria
under the approach described above, the
States will, in many cases, have more 35. PJM Interconnection (PJM) necessary to establish a basis for the
than two years to complete their action, requests that the Commission address public interest determination.
and thereby avoid issuance of a the Commission’s jurisdiction over Massachusetts Energy Board states the
construction permit by this facilities that span multiple States Commission should define ‘‘consistent
Commission, because our pre-filing and where one State may have approved the with the public interest’’ to include that
construction permit processes typically facilities and another does not. While there is no superior approach to the
take more than one year to complete the Commission’s jurisdiction may, in identified transmission project; there is
(which is in addition to the one year these circumstances, only attach to the no superior alternative to the proposed
provided to State authorities). portion of the facility that would qualify route; and all feasible mitigation of
32. We also clarify that mere under FPA section 216(b)(1), under the environmental impacts and any adverse
consideration of an application by the National Environmental Policy Act of reliability impacts will be undertaken.
Commission does not equate to a 1969 (NEPA), the Commission would 39. Wisconsin PSC states the
jurisdictional determination or have to analyze the impact of the entire Commission should examine a variety
Commission approval of the proposed project. The Commission may, however, of factors, including cost-effectiveness,
project. Once an application is filed for adopt State analyses where possible. safety, engineering, project alternatives,
consideration by the Commission, Additionally, to make its determination individual hardships, reliability,
anyone who questions the under FPA sections 216(b)(2) through competitive impacts, and environmental
Commission’s jurisdiction over the (6) the Commission would have to impact to judge whether a project is in
proposed project, the timing of the review the operation of the facility as a the public interest. PJM believes the
exercise of that jurisdiction, or the whole. Commission should specifically look at
merits of the proposal can raise those 36. PHI Companies request that the adding a reliability requirement and a
matters in its intervention or protest. Commission clarify that where a State market efficiency analysis. NARUC
requests that the Commission consider adverse impacts. The Commission will process before beginning the pre-filing
the impact of the project on host States review the proposed project and process.
and any possible mitigation, and also determine if it reduces the transmission 44. The Commission agrees that the
require that harmful financial impacts of congestion identified in DOE’s study determinations of an independent
the project are mitigated through an and if it will protect or benefit entity, such as an RTO, should be given
applicable cost allocation methodology consumers. It will investigate and due weight in our assessment of
within the Commission’s jurisdiction. determine the impact the proposed whether a particular facility is needed to
40. PSEG Companies contend that the facility will have on the existing protect or benefit customers. We will,
Commission should define the term transmission grid and the reliability of therefore, consider any such
public interest to consider the energy the system. independent determinations as a factor,
and environmental policies of the States 42. The Commission will also along with all other relevant factors, in
where the transmitted energy will consider the adverse effects the determining whether the statutory
provide power. It states that proposed facilities will have on criteria have been met.
‘‘significant’’ should be defined as it landowners and local communities. The
applies to the reduction of congestion C. Project Participation
Commission will evaluate the entire
and that ‘‘sound national energy policy’’ record of the proceeding, and after due 45. Section 216(d) of the FPA requires
should be clarified to consider that consideration of the issues raised, that the Commission afford each State in
national security concerns will be taken determine if the proposed project is which the transmission facility covered
into consideration. Finally, PSEG consistent with Congress’ goals and by the permit application is or will be
Companies state that the criteria for objectives in enacting FPA section 216, located, each affected Federal agency
approval should be on a cost-benefit while avoiding unnecessary disruptions and Indian tribe, private property
basis and an applicant should specify to the environment and the unneeded owners, and other interested persons, a
whether the project is being built for exercise of eminent domain. The reasonable opportunity to present their
reliability or for economic reasons Commission’s review of a proposed views and recommendations with
because that could lead to a different project will be a flexible balancing respect to the need for and impact of a
evaluation. Wilderness asserts that the process during which it will weigh the facility covered by the permit
Commission’s public interest factors presented in a particular application. Additionally, under FPA
determination should consider the application. It will impose appropriate section 216(h)(3) and its delegated
benefits of electric transmission, the conditions necessary to avoid adverse authority, the Commission needs to
project’s environmental impacts, and coordinate the Federal authorization
economic, competitive, environmental
alternatives with less environmental and review process with any Federal
or other effects on the relevant interests
impacts. Progress Energy (Progress) agencies, Indian tribes, multistate
from the construction of a new project,
cautions the Commission to be mindful entities, and State agencies that are
and will approve the project only where
that a policy of maximum use of responsible for conducting separate
the public benefits to be achieved from
existing towers and structures should be permitting and environmental reviews
the project outweigh the adverse effects.
conditioned upon maintaining or of the facilities.
improving the reliability of the 43. PG&E states the Commission
should rebuttably presume a need for a 46. Under the Commission’s review
transmission system. process, any interested entity or
41. While commenters have raised a project subject to the independent
oversight of an approved independent individual will have multiple
number of valid public interest opportunities to participate and express
considerations, the Commission cannot system operator (ISO) or regional
transmission organization (RTO) its views on the proposed project.19
adopt an exclusive list of factors or Under § 50.4 of the Commission’s
construct a bright-line test to determine without a direct economic interest in
the application process. It contends that regulations, the applicant is required to
whether a project meets all the statutory
this will maximize efficiency as develop a Project Participation Plan
criteria. It is difficult to construct
participants must already make (Participation Plan) to facilitate
helpful bright line standards or tests for
showings of local or regional need to participation from all stakeholders
this area. Bright line tests are unlikely
gain approval from an ISO or RTO. during the Commission’s proceedings.
to be flexible enough to resolve specific
PSEG Companies encourages the The Participation Plan will be used to
cases and to allow the Commission to
Commission to incorporate the results of provide accurate and timely
take into account the different interests
the RTO process into its proceeding. information, including the
that must be considered. In reviewing a
APPA asserts that if a project results environmental impacts, as well as the
proposed project, the Commission will
consider all relevant factors presented from an open and collaborative regional national and local benefits, of the
on a case-by-case basis and balance the planning process designed to meet the proposed project, to all stakeholders.
public benefits against the potential transmission needs of load-serving The Commission expects that the
adverse consequences. The Commission entities (LSE) within the national applicant will conduct various outreach
will conduct an independent interest electric transmission corridors, activities to solicit comments on its
environmental analysis of the project or a consortium with broad LSE proposal before commencing the
and determine if there is no significant ownership/participation then there Commission’s review process.
impact as required by NEPA. It will look should be a presumption of public 47. In addition to the applicant’s
at alternatives, including, as interest. Similarly, NRECA contends outreach activities, Commission staff
appropriate, alternatives other than that the Commission cannot reasonably will conduct its pre-filing process. As
transmission lines, and consider make the FPA section 216(b)(2) through part of this process, Commission staff
whether the proposed facilities would (6) findings unless the proposed will start its scoping and environmental
maximize the use of existing expansion or modification arose from a review of the proposed project as
transmission facilities. It will review the truly open and inclusive joint 19 The Commission considers any interested
alternatives for their respective impacts transmission planning process. It entity or individual to be included in its definition
on the environment and will determine requests that the Commission require an of stakeholder in § 50.1 of the Commission’s
mitigation measures to lessen the applicant to complete a joint planning regulations.
required by NEPA. As part of this notify any landowner with a residence owners of property either directly
review, it will seek comments and within a quarter mile from the edge of within or adjacent to the proposed right-
recommendations from interested the construction right-of-way. of-way and construction area. If a land
stakeholders. Commission staff will use 51. Communities contend that the management agency manages land on or
those comments during its preliminary definition of affected landowner is too adjacent to the proposed right-of-way
review of the proposed project to limited and must be broadened to and construction area, it will be
formulate the issues raised by the provide a fair opportunity for considered an affected landowner.
project and to assist the applicant in intervention and a comprehensive While the definition only encompasses
compiling the information necessary for environmental review. It states that it land on or abutting a proposed right-of-
the Commission staff to draft the should include all landowners directly way, the applicant must also notify all
environmental document and for the affected by the proposed facility so that landowners with a residence within a
Commission to address those issues all such individuals are allowed to quarter mile of the edge of the
during the application process. participate fully in the proceeding. DOI construction right-of-way under the
48. Once the application is filed, it requests that the definition of affected notification requirements of § 50.4(c)(1).
will be noticed and interested landowners include land management The Commission believes that between
stakeholders will be able to file to agencies. Similarly, National Parks the definition of affected landowner and
intervene and/or file protests and/or Conservation Association (Parks the expanded quarter mile notification
comments concerning the applicant’s Association) requests that the definition requirement, a sufficient group of
proposal. Additionally, during the of affected landowner be reworded so individuals will be notified of the
application proceeding, the Commission that land managing agencies with fee proposed project.
will issue a draft environmental simple lands and those lands in which 54. Stakeholders do not need to be an
document.20 The environmental agencies own scenic easements, are affected landowner or live in a
document will also be subject to a notified during the appropriate times.21 residence within a quarter mile of the
comment period where any stakeholder They contend that if the Commission proposed site to participate in the
may file comments concerning the does not include Federal agencies as Commission’s proceedings. Under the
findings made in that document. ‘‘affected landowners,’’ it needs to definition of stakeholder in § 50.1, any
Finally, the Commission will issue a develop a notification criterion for interested entity or person may file
final environmental document and an Federal agencies that manage public comments as a stakeholder and
order addressing the issues raised in the lands. DOI also encourages the participate in the Commission’s process.
proceeding. Commission to add a procedure for Even if a specific land management
49. The Commission received notifying stakeholders who would be agency is not included in the definition
numerous comments on its proposal for within the viewshed, but not necessarily of affected landowner, it can still
public participation in its siting process. abutting, the proposal project to help participate as a stakeholder. Resource
Many commenters requested notify other Federal governments and Report 8, in § 380.16(j), requires that the
clarification on how the Commission agencies involved in the project. applicant identify the existing land use
envisioned its notification requirements 52. Parks Association requests that the in the vicinity of the proposed facility,
would be implemented, who would be reference to ‘‘directly affected’’ including areas designated for studies
notified about the project, and how an landowners in § 50.1(a)(1) needs to be under Federal law under § 380.16(j)(7).
interested stakeholder would be able to defined since an electricity corridor If, for some reason, a specific land
access information and participate in might not cross or use parklands, but management agency is not identified in
the Commission’s proceedings. Some could still ‘‘directly’’ affect the scenic the early planning stages of a project, as
commenters were concerned that the and historic resources of a park. It also discussed below, during the pre-filing
Commission’s definition of affected states that a specific definition of process Commission staff will work
landowners was too limited. Others ‘‘used’’ in § 50.1 should be added and with the applicant to determine if any
thought it was too broad. Some include landowners whose property is potential stakeholder has been missed
commenters were afraid that their group exposed to noise and visual impacts. and if they have, to make sure that they
may be excluded from the definition of Moreover, Park Associations believes have had notice of the proposed project
stakeholder. Others thought a the quarter mile distance requirement is and an opportunity to participate.
stakeholder’s right to participate should inadequate to address the possible 55. Southern states that owners with
be restricted. adverse impacts on lands discussed in property interests that abut an existing
the land use, recreation, and aesthetics right-of-way should not be included in
1. Landowners the definition of affected landowners
resource report. Massachusetts Energy
50. Under § 50.1, an affected Board requests that the Commission unless it becomes necessary to secure
landowner is an owner of property define affected landowner using a easements or other rights from such
interests, as noted in the most recent tax distance greater than 50 feet from owners. It argues that the definition
notice, whose property is: (1) Directly overhead transmission lines or use a should be limited to owners of property
affected, crossed or used, by the definition based on a distance from the interests directly affected by the project
proposed project; or (2) abuts either side edge of the cleared or permanent right- and not to property interests that abut
of an existing right-of-way or proposed of-way.22 existing rights-of-way. Allegheny states
facility site or right-of-way, or contains 53. The definition of affected that the Commission should only
a residence within 50 feet of a proposed landowner is meant to encompass require notification of landowners with
construction work area. In addition, residence within 50 feet of a
§ 50.4(c) requires that the applicant 21 Lackawaxen River Conservancy adopts the construction work site, as required
comment of the Parks Association. under the affected landowner definition
20 The Commission will issue an environmental 22 Additionally, Massachusetts Siting Board also under the Commission’s natural gas
assessment under § 380.5 or an environmental states that the word ‘‘and’’ should be replaced with pipeline regulations in § 157.6(d)(2)(ii)
impact statement under § 380.6 of the Commission’s ‘‘or’’ after the phrase ‘‘temporary workspace’’. We
regulations depending upon the level of NEPA agree that the word ‘‘and’’ between the two
and not expand the landowner group to
review that will be required for the proposed requirements should be replaced with ‘‘or’’ and residences within a quarter mile of the
project. have changed the regulation accordingly. right-of-way as required under § 50.4(c).
56. While property owners with land 2. Stakeholders and Notification periodically update the notification list
that abuts the proposed right-of-way or 60. Section § 50.1 defines a as properties change hands.
with a residence within 50 feet of the 63. The Commission agrees that
stakeholder as a Federal, State, or
proposed construction work area may electric utilities and transmission
multistate, Tribal or local agency, any
not be required to negotiate easements owners and operators that are connected
affected non-governmental organization,
once the ultimate route is determined, to the applicant’s proposed transmission
or other interested person. In other
one of the purposes of the pre-filing facilities should be notified of the
words, a stakeholder includes agencies
process is to review the applicant’s proposed project. We also believe it is
and individuals contemplated under
proposed route and explore route appropriate for the applicant to notify
FPA section 216(d) and the permitting individuals that have expressed an
alternatives and variations based on the agencies contemplated under FPA
input the Commission receives from interest in the State proceeding, if a list
section 216(h)(3).23 Under § 50.4(c) the of those individuals is available to the
property owners and other interested applicant is required to notify all known
entities and individuals. It is important applicant. Accordingly, we will expand
stakeholders, including affected the notification requirement in
that potentially affected property landowners, of the proposed new
owners are notified early on in this § 50.4(c)(1) to include electric utilities
facilities or modification of existing and transmission owners and operators
review process to provide the facilities within 14 days after the
Commission with their views and that are or may be connected to the
Director of OEP or his designee notifies applicant’s proposed transmission
recommendations as required under the applicant of the commencement of
FPA section 216(d). Additionally, once facilities and any known individuals
the pre-filing process. Additionally, that have expressed an interest in the
construction commences, abutting under proposed § 50.4(c)(1)(ii), the
property owners may be impacted by State proceeding.
applicant must publish the notice of the 64. Section 50.4(c)(3) requires that the
the construction activities conducted in pre-filing request and application filing
such close proximity to their property applicant supply a stakeholder notice of
twice in a daily or weekly newspaper of the proposed project if a stakeholder is
and should be made aware of these general circulation in each county in
activities. identified subsequent to the initial
which the facilities will be located. notice of the project. If a property
57. The Commission also believes it is 61. Communities states that while changes hands during the pre-filing and
appropriate to notify all landowners counties are technically included in the application proceeding, the applicant is
within a quarter mile of the proposed definition of a person under required to notify the new owners once
right-of-way. Unlike gas pipelines § 385.102(d) of the Commission’s they are identified. We will not,
which are generally buried regulations they should, nevertheless, however, require that the applicant
underground, electric transmission lines be prominently listed as stakeholders actively monitor land sales along the
can be seen from greater distances. for the purposes of these regulations. project route to determine if a piece of
Therefore, more surrounding Imperial states that as a political property happens to be sold during the
landowners should be directly notified subdivision, it should be accorded Commission’s proceedings.
by the applicant. The fact that these stakeholder status. The Commission 65. White Mountain Apache Tribe
landowners are not designated as considers any interested entity or (White Mountain) recommends that the
affected landowners does not diminish individual to be included in its Commission require applicants to
their right to be notified and participate definition of stakeholder in § 50.1 of the publish the notice of a pre-filing request
in the Commission’s proceedings. regulations. Thus, if a particular entity, in tribal newspapers when any part of
Additionally, the Commission will also such as a non-public utility or a county, the project will affect tribal lands. We
notify these individuals of its intent to is not specifically listed in the agree and will add tribal newspapers to
conduct its environmental review and definition of stakeholder, it still may the notification requirement of
will seek comments from them during comment and participate in the § 50.4(c)(1)(ii).
that review. Commission’s proceedings. 66. DOI recommends that the notices
58. PG&E states that the Commission 62. SoCal Edison, PG&E, and NRECA published in the newspapers include a
should defer to States’ distance request that the applicant provide map of sufficient detail to allow the
requirements for notification of affected electric utilities and affected reader an immediate understanding of
landowners. It requests that where there transmission owners and operators with the general location or the proposed
is no corresponding State requirement, notice and opportunities to participate construction right-of-way. Section
the Commission should designate the in the process if they would be 50.4(c)(2)(i)(C) requires the filing of a
appropriate minimum distance between connected to an applicant’s proposed general location map. The notice also
the proposed project and a landowner’s transmission facility, provide service in provides information concerning how
property that would trigger the direct the service area, or would be impacted, an individual can seek additional
notification requirement. National Grid either by environmental, reliability or information if the information in the
recommends that the Commission only structural impact, as a result of the newspaper is not sufficient.
require notification within 300 feet of project. Western Energy Board requests 67. Affiliated Tribes of Northwest
the construction right-of-way. that the applicant should also notify Indians (Affiliated) and White Mountain
59. The Commission does not believe individuals who have expressed an state that the Commission should assure
it is appropriate to defer to States’ interest in the State proceeding. It also that all Tribal entities whose traditional
distance requirements for notification of requests that the Commission include a lands or cultural places are crossed by
affected landowners or that notification requirement for the applicant to a potential project should be notified.
within 300 feet is sufficient to reach the National Grid states that the
broad group of participants that the 23 Section § 50.1 defines a permitting entity as any Commission should clarify what Tribal
Commission seeks to include in these entity, including Federal, State, Tribal, or governments involved in the project
proceedings. Moreover, having different multistate, or local agency that is responsible for means so the proper ones can be
conducting reviews for any Federal authorization
requirements in different States may that will be required to construct an electric
notified. Section 50.4(c)(1) requires that
result in inconsistent requirements transmission facility in a national interest electric the applicant notify tribal governments.
along the route of a multistate project. transmission corridor. We believe this is sufficient to address
Affiliated’s and White Mountain’s available on the Commission’s Web site. required to serve these materials on all
concerns. We also do not believe any We find that is sufficient notification of parties as required under § 385.2010 of
clarification of Tribal government is the commencement of the pre-filing the Commission’s regulations. Thus, we
necessary. That information is readily process. will add § 50.4(b)(3) to the regulations to
available from the Bureau of Indian 71. Reinhardts request that the state:
Affairs or the State or Tribal Historic Commission require that the applicant An applicant is not required to serve
Preservation Office. Moreover, as file a formal affidavit with: A copy of voluminous or difficult to reproduce
discussed below, part of the pre-filing the notice sent to landowners; a copy of material, such as copies of certain
process is for the Commission staff to the newspaper notices and list of environmental information, to all parties, as
work with the applicant to determine if publications where they appeared; and long as such material is publicly available in
any potential stakeholder has been the names and addresses of all notified an accessible central location in each county
missed and if they have, to make sure entities so that third parties are able to throughout the project area and on the
that they have had notice of the verify that the applicant has complied applicant’s project Web site.
proposed project and an opportunity to with the notice requirements. Western 4. Participation Process
participate. Energy Board states that the applicant
68. EEI requests that the Commission should be held to a higher standard than 74. As stated, under the Commission’s
limit the term stakeholder to an affected ‘‘good faith effort’’ for the notification of review process all interested
agency or person.24 It contends that property owners. Affiliated contends stakeholders will have numerous
interested person could include a broad that the notice requirements are opportunities to present their views and
range of parties that are not impacted by insufficient because there are no recommendations with respect to the
the proposed project. Southern states penalties to assure that all stakeholders need for and impact of a proposed
that interested person should be are identified at the beginning of the facility. Those opportunities include
reasonably and precisely drawn to project. American Transmission asserts participating during the applicant’s
clearly specify the scope of their that the notification should be made on outreach activities, during the
participation, including actions these a good faith effort basis and Commission’s NEPA process during
participants may take with respect to stakeholders will have a reasonable both the pre-filing and application
any project or application. National Grid opportunity to receive notice. NRECA processes, and through the
states that the Commission should states that the notification requirement Commission’s intervention and protest
require stakeholders to provide notice to should be deemed deficient if the procedures during the application
Commission staff and the applicant of applicant learns of additional process. Numerous commenters raise
the stakeholder’s interest and intended stakeholders after the 14-day period. concerns about their ability to
involvement in the pre-filing process. 72. Pre-filing is an information- participate in the pre-filing and
69. The Commission intends to seek gathering process. During this process, application processes.
comments from a broad group of Commission staff will work with the 75. Reinhardts state that the
participants during the pre-filing applicant to make sure that all Participation Plan should include
process. Once the application is filed interested stakeholders have been made information of how interested persons
the Commission will still entertain aware of the proposed project and have may be notified of dates and times for
comments from interested entities and had an opportunity for their views and public meetings or hearings on the
individuals. If anyone wishes to recommendations to be considered. proposed project. Star Group (Star)
intervene in the application proceeding Thus, part of the pre-filing process is for states that the Participation Plan should
and become a party, however, they will the Commission staff to review who the identify the means by which
need to file a motion to intervene in applicant has notified and to work with stakeholders will be given the
accordance with § 385.214 of the the applicant to determine if a potential opportunity to meet with the applicant
Commission’s regulations. Under stakeholder has been missed and if they to attempt to understand and resolve
§ 385.214(b)(2) the motion to intervene have, to make sure that they received key issues. American Transmission
must show that the movant has an notice of the proposed project and an believes the Commission should give
interest that is directly affected by the opportunity to participate. The more guidance concerning what
outcome of the proceeding. Commission has successfully relied on constitutes a complete Participation
70. Old Dominion Electric this process in its review of Plan. Old Dominion requests that the
Cooperative (Old Dominion) is hydroelectric and natural gas projects. Commission require the applicants
concerned that stakeholders will not provide a summary of stakeholder
receive sufficient notice of the 3. Document Availability participation to date in the Participation
commencement of the pre-filing 73. Under § 50.4(b), an applicant is Plan, including concerns expressed by
proceeding because the Director of OEP required to make copies of all of its stakeholders, and efforts by the
will only notify the applicant under filings readily available for all applicant to address those concerns.
§ 50.5(d). Old Dominion suggests, stakeholders to review at accessible 76. The Commission expects that the
among other things, that the Director’s central locations, either in paper or applicant will have conducted outreach
notice be published in the Federal electronic format, and on the applicant’s activities at the planning and/or State
Register and be made available on the project Web site. Allegheny requests level prior to commencing the
Commission’s website. As discussed that the Commission add a provision Commission’s pre-filing process. The
above, the Commission has modified the comparable to those in the natural gas Participation Plan must detail all of the
group of stakeholders listed in pipeline certificate regulations that outreach activities the applicant has
§ 50.5(e)(3) that are required to receive reduce the applicant’s service done to date and summarize the input
notification of the Director of OEP’s requirements if its materials include it received during that outreach. It also
notice commencing the pre-application voluminous or difficult to reproduce must include a list and schedule of all
process from the applicant. material. The Commission agrees that if pre-filing and application activities the
Additionally, the notice will be these materials are readily available at applicant is planning, including, among
central locations and on the applicant’s other things, consultations, information
24 PHI Companies supports EEI’s comments. project Web site, it should not be gathering, and proposed location(s) and
date(s) for the meetings. The applicant comments filed by stakeholders in that ask questions, which continue to
must also describe how it intends to docket, and any issuances made by the postpone a project. AEP recommends
keep the stakeholders apprised of any Commission in that docket, including that the process should be modeled
updates to its Participation Plan, notices and requests for additional more like a rulemaking with time-
including, but not limited to, postings to information will be posted on eLibrary limited input. EEI asserts that the
its project Web site and how the under that docket number.25 applicant should not necessarily be
stakeholder can reach the company’s 80. Once the Commission staff obligated to communicate with parties
contact to seek additional information. establishes that the applicant has filed that have not demonstrated that they
77. Parks Association and DOI request sufficient preliminary information to will be impacted by the proposed
that the Commission require applicants proceed with pre-filing, the Commission project. Southern states that the
to release a pre-route proposal before will issue a notice of intent (NOI) to obligation to entertain requests for
the pre-filing process begins for a prepare an environmental document. information should be limited in scope
permit. One of the purposes of the pre- The NOI will describe the project, list and in terms of the participants that
filing process is for Commission staff to potential issues identified by the may request additional information or
work with the applicant and interested Commission staff,26 and explain the else it would lead to significant delays.
stakeholders to determine the ultimate Commission’s scoping and 83. During pre-filing, the Commission
route of the proposed project. Moreover, environmental review process. It will will solicit comments from
for siting proceedings that are initiated explain how to participate in the stakeholders. Any notice issued by the
in a State proceeding, stakeholders will Commission’s process by submitting Commission soliciting comments will
already have some idea of the written comments. The notice will set a include a deadline date for those
approximate route from that proceeding. date by which time the comments will comments. The Commission expects
The Commission does not believe it is be due. It will also list the scoping that the applicant will address
necessary to add yet another level of meetings the Commission staff will hold stakeholder concerns in various ways.
notification to an already potentially at various locations throughout the Under § 50.4(a)(1), the applicant is
lengthy process. proposed project route to access the required to have a point of contact
78. PSE&G and Allegheny request that maximum amount of participation within the company to answer general
the Commission establish a docketed, possible. The Commission will have a inquiries that may arise. The applicant
publicly-noticed proceeding for pre- transcriber at its scoping meeting to can also establish a link on the project
filing or use a technical conference to create a record of the comments Web site that addresses frequently asked
assure that stakeholders will be afforded received at that meeting. questions and refer the inquiry to that
a formal opportunity to present their 81. Depending on the issues that arise link or other areas on the Web site to
views. New Jersey Board of Public during the course of pre-filing, address inquiries, as appropriate.
Utilities (New Jersey BPU) requests that Commission staff may determine that it 84. Based on the comments received
the Commission provide for is necessary to hold various technical in response to the NOI and information
videoconferencing of the meetings. Old conferences or other meetings to acquire gathered on visits to the site of the
Dominion states that the Commission additional input and information proposed project, Commission staff will
should not only fix the time by which concerning the proposed project. The work with the applicant to compile the
interventions are due, but also provide Commission will issue notices of these information and conduct the studies
a fixed time for interested parties to file meetings in the docket number assigned necessary for the Commission staff to
comments or protests to applications. to the project. Additionally, the prepare a draft environmental
Communities, Old Dominion, and Star applicant will need to update its document. Once the Director of OEP has
are concerned that the pre-filing process Participation Plan to reflect any determined that sufficient information
does not provide an opportunity to give additional outreach that may be has been gathered for the Commission to
any meaningful input to the conducted as part of the Commission’s proceed with the final review of the
Commission. Communities argue that review process. If the Commission applicant’s proposed project, pre-filing
without notice and comment during the determines it is appropriate, it could will end and the applicant will file an
pre-filing process or transparency in the arrange to provide for application.
Commission’s decision-making process, 85. Once the application is filed, it
videoconferencing of certain meetings.
intervenors and the public will be will be noticed and interested entities
However, because the Commission
significantly handicapped in their and individuals will be able to file to
conducts various meetings along the
efforts to meaningfully participate once intervene and become a party to the
route of the proposed project, proceeding under Subpart B of Part 385
the formal application process begins.
videoconferencing should not be of the Commission’s regulations.
They are also concerned that interested
necessary. Additionally, transcripts of Instructions on how to do this will be
parties and the public will not have any
the meeting will be available under the explained in the notice of the
intervention rights or any comment
assigned docket in eLibrary and the application and are available on the
rights during the pre-filing process.
79. The Commission’s pre-filing Commission’s Web site. Commission’s Web site.
82. AEP is concerned that there is no 86. American Transmission requests
procedures offer numerous occasions for
limit on stakeholder input in the pre- that the Commission allow State, local,
stakeholders to express their interests
filing process. It states that stakeholders
and make meaningful contributions. and regional planning and siting entities
can push for revisions and continue to
Once the Commission commences the to participate in the proceeding as a
pre-filing proceeding, it will assign a 25 Information concerning how to use the
matter of right. Communities state that
docket number to the project. All the Commission’s services can be found on the local counties that will be impacted by
applicant’s pre-filing materials will be Commission’s Web site at http://www.ferc.gov and the proposed facilities should have
posted under that docket number in the will also be included in the notices the Commission automatic rights to intervene and
Commission’s eLibrary and will be issues concerning the proposed project. receive notices and information. NRECA
26 The list of issues may be modified during the
available through the Commission’s environmental review process based on the
contends that the Commission should
Web site. All subsequent filings made in comments received during the Commission staff’s coordinate closely with the Rural
that docket by the applicant, any analysis. Utilities Service to avoid duplication
and the imposition of additional D. Pre-Filing third-party contractor to assist in

burdens on applicants.27 90. The purpose of the pre-filing preparing a NEPA document under the
87. Under § 385.214 of the process is to facilitate maximum direction of the Commission staff.
Commission’s regulations, any State 94. Virginia Electric requests that the
participation from all stakeholders to
Commission explain what will be
commission, Advisory Council on provide them with an opportunity to
reviewed by staff in the initial
Historical Preservation, the U.S. present their views and
consultation and when such reviews
Departments of Agriculture, Commerce, recommendations with respect to the
will take place. American Transmission
and the Interior, any State fish and need for and impact of the facilities
requests that the Commission define
wildlife, water quality certification, or early on in the planning stages of the
what constitutes a complete set of pre-
water rights agency, or Indian tribe with proposed facilities as required under
filing information to assist in expediting
authorization to issue a water quality FPA section 216(d). In addition to the process.
certification is a party to any proceeding gathering stakeholder input, during this 95. While any applicant may seek
upon filing a notice of intervention in time Commission staff will work with guidance on a potential project from
that proceeding. The Commission sees the applicant to compile the information Commission staff at any time, the
no reason to expand this regulation. All required for a complete application Commission expects that the applicant
other interested persons may seek under §§ 50.6 and 50.7. will commence the initial consultation
intervention by filing a motion to 91. The filing requirements in §§ 50.6 process for pre-filing when it believes
intervene. and 50.7 set forth the basic information that there is sufficient evidence that a
that the Commission will need for a proposed project will be subject to the
88. DOI raises several issues
generic project. However, each project Commission’s jurisdiction and it has
pertaining to the timing of the draft
will have its own unique issues that will prepared the required pre-filing
environmental document under the
need to be considered on a case-by-case information. At the pre-filing
NEPA. Specifically, it is concerned as to
basis. For example, an electric consultation, Commission staff will
when other Federal agencies will get an
transmission facility constructed review the applicant’s specific project
opportunity to review the draft
through farmland will have a different and the information the applicant has
document. It encourages the
impact than one that will go through a compiled to date and discuss how that
Commission to include a timeframe for
heavily populated area. During the pre- information complies with the initial
public review of the NEPA document
filing process, Commission staff will pre-filing filing requirements in § 50.5(e)
along with clarification as to when the initiate its independent environmental
Commission will issue the NEPA and the application filing requirements
analysis of the project as required by in §§ 50.6 and 50.7. Commission staff
document. After the application is filed, NEPA. It will conduct scoping meetings
the Commission will issue a draft will also review what work the
and site visits. Staff will use the applicant has done at the State level, the
environmental document, on which information gathered through this
interested stakeholders will be able to amount of community outreach the
process and from information acquired applicant has conducted, and the results
comment. All comments received will from stakeholder input to define the of that outreach.
be addressed in the final environmental issues particular to a specific project. 96. While the potential differences
document which will be completed Based on these activities, Commission between projects make it difficult for the
before the Commission issues an order staff assists the applicant in compiling Commission to specifically define what
on the merits of the application. the information necessary for the would constitute complete pre-filing
89. When the Commission completes Commission to address the specific information, § 50.5(e) lists the minimum
its review of the application, it will concerns raised by the proposed project filing requirements that are needed for
issue an order addressing the issues during the application process. an applicant to commence the pre-filing
raised in the proceeding and issuing, or process. If the Commission staff find
1. Initial Consultation Issues
denying, a permit to construct the that the applicant has sufficient
proposed facilities. Under FPA section 92. Section 50.5(b) requires that an information to comply with the pre-
313(a) and § 385.713 of the applicant meet with the Director of OEP filing filing requirements in § 50.5(e),
Commission’s regulations, any party before filing its pre-filing materials. the applicant will be allowed to
may file a request for rehearing. During the consultation process, commence pre-filing. If the applicant
Requests for rehearing must include the Commission staff will review the does not have sufficient information to
information required under § 385.719(c) applicant’s proposed project meet the pre-filing filing requirements,
of the Commission’s regulations. The description, including the status of the Commission staff will work with the
Commission will issue an order applicant’s progress towards collecting applicant to determine what additional
addressing the issues raised in the the data needed to commence the pre- information will be needed to proceed.
rehearing requests. If the Commission filing process, and any preliminary If the applicant does not have the
denies the rehearing requests, any party contacts the applicant has had with necessary information, it may take more
who intervened in the proceeding and is stakeholders, including its progress in than one pre-filing consultation before
aggrieved by the Commission’s order DOE’s pre-application process and in the applicant is prepared to commence
may file, under FPA section 313(b), an the State proceeding, if applicable. pre-filing.
appeal in the United States Court of 93. Commission staff will review the 97. EEI argues that rather than
Appeals. applicant’s eligibility for Commission requiring applicants to develop and
jurisdiction for a permit for the implement an extensive new pre-filing
27 The Rural Utilities Service provides capital to proposed facility, outline the pre-filing public Participation Plan, the
upgrade, expand, maintain, and replace America’s process, and provide guidance as to Commission should simply require the
vast rural electric infrastructure. NRECA states that what further work is necessary to applicant to provide appropriate
financing obtained through the Rural Utilities prepare the pre-filing request. notification to stakeholders that the
Service is subject to rigorous long-term planning
obligations that are substantially more demanding
Commission staff will also review the venue for the siting approval process
than the resource adequacy requirements that apply proposed project to determine if the has moved from the State to the Federal
to other LSEs. applicant will be required to hire a level along with an explanation of how
they can become involved in the should generally defer to the applicant’s process. Since part of the pre-filing
Commission’s process as an intervenor choice because the applicant is process is to assist the applicant in
or under NEPA. SDG&E recommends financially responsible for the compiling the information needed to file
that an applicant should be able to contractor’s work. Los Angeles DWP is a complete application, the Commission
bypass the pre-filing stage, if at the concerned that the requirement to does not expect that the preliminary
initial consultation with the Director of finalize the contract with the third-party resource reports filed at the beginning of
OEP it is determined that it has contractor may take 90 days or longer the pre-filing process will contain every
submitted sufficient information with unless one of the four NEPA contractors detail required for the ultimate report
OEP to support beginning to process the selected who is currently under contract that will need to be filed with the
application, has submitted a with the Los Angeles DWP. American application. The resource reports
Participation Plan, and has complied Transmission requests that the required in § 50.5(e)(7) should be
with the pre-filing requirements of Commission clarify why it requires that preliminary reports that contain
§ 50.5(e). PHI Companies similarly third party contracts be finalized in two sufficient information for Commission
suggest the pre-filing process should be weeks in all cases; instead it staff to commence the pre-filing process
optional. recommends that it should be 45 days. and specifically the NEPA process.
98. Because pre-filing is a fact-finding DOI requests clarification or a reference Commission staff will work with the
process used by the Commission staff to to the criteria that the Commission will applicant throughout the pre-filing
commence and initiate its independent use to determine if a third-party process to develop all the necessary
environmental analysis and to define contractor must be hired. information for each resource report. It
specific issues raised by specific 102. The Commission is required should be noted, however, that delays in
projects, it is not possible for an under NEPA to do an independent filing these materials may delay the
applicant to by-pass the process. analysis of the environmental impacts of decision to allow an application to be
However, the time it takes for an a proposed project. Depending on the filed.
applicant to complete the pre-filing amount of work involved, it often
process could be significantly reduced 4. Lead Agency Issues/Coordinating
requires that the applicant hire a third- Federal Permits
depending on the amount of work the party contractor to assist the
applicant had completed in compiling Commission in analyzing the proposed 105. Effective May 16, 2006, DOE
the necessary information prior to the project. The third-party contractor, delegated paragraphs (2), (3), (4)(A)–(B),
pre-filing process. while paid for by the applicant, reports and (5) of FPA section 216(h) to the
99. PJM requests that the Commission Commission as they apply to proposed
directly to Commission staff. Thus, the
staff commence its system analysis facilities in designated national interest
Director of OEP will designate the
review of the proposed facilities during electric transmission corridors.29
appropriate third-party contractor.28
the pre-filing process. Commission staff Specifically, it delegated lead agency
While § 50.5(e)(2) requires that the
primarily focuses on compiling the responsibilities for the purpose of
applicant finalize the contract with the
information for the subsequent coordinating all applicable Federal
selected third-party contractor within 14
environmental review during pre-filing. authorizations and related
days the Commission may waive that
In cases where a project would be environmental review and preparing a
requirement rule for good cause. If the
located in the geographic area covered single environmental review document
applicant cannot finalize the contract
by an RTO, we expect much of the for facilities in a National Corridor.
with the third-party contractor within 106. PJM states that the Final Rule
information for the system analysis to be
two weeks, it can request a waiver of the should promote coordination among
developed in consultation with the RTO
requirement of § 50.5(e)(2). We note, Federal agencies and the resolution of
during the pre-filing phase. If necessary,
however, that preparation of an disputes among Federal agencies. AEP
however, Commission staff will work
environmental document is a time and states that while the Commission
with the applicant during pre-filing to
labor intensive process. The developed well-defined procedures for
identify specific information that will be
Commission has implemented the 14- interacting with State agencies, it
required for the Commission to conduct
day requirement as a way to expedite should also coordinate siting for the
a system analysis during the application
the process. various Federal agencies. DOI requests
process.
3. Subsequent Filing Requirements clarification on whether there are two
2. Third-Party Contractors separate pre-filing processes (one led by
100. Under § 50.5(c)(6) the applicant 103. Section 50.5(e) lists the initial DOE and one led by the Commission).
is required to propose at least three filing requirements and filing deadlines Western Energy Board raises similar
third-party NEPA contractors for the that are required for the Commission concerns regarding the duplication of
Commission to consider for the staff to commence the pre-filing process. the two processes.
proposed project. Under § 50.5(d)(1), the Parks Associations is concerned that 107. As stated, several Federal
Director of OEP’s pre-filing notice will this language does not impose strict agencies including DOE and the
designate the chosen third-party deadlines to protect the public interest. Commission entered into a MOU to
contractor at the beginning of the pre- On the other hand, National Grid establish a framework for early
filing process. requests that the Commission permit cooperation and participation that will
101. Southern states that the applicant reasonable extensions of time beyond enhance coordination of all applicable
should be entitled to select any third- the 60-day timeframe for submitting land use authorizations, related
party NEPA contractor to use in its pre- resource reports. environmental, cultural, and historic
filing and application process, insofar as 104. The deadline requirements in the preservation reviews, and any other
the Director of OEP determines that a regulations are intended by the approvals that may be required under
third-party contractor will be necessary. Commission to expedite the pre-filing Federal law in order to site electric
Similarly, National Grid states that an 28 See 40 CFR 1506.5(c), requiring that a
transmission facilities. The MOU
applicant should be permitted to contractor used to prepare an environmental impact requires participating agencies, to the
express a preference for a particular statement is to be chosen solely by the lead agency
contractor and the Commission’s staff (or where appropriate, by a cooperating agency). 29 Supra note 5.
extent practicable, to commit to early authority only pertains to facilities the Commission explain the variables in
involvement and cooperation to ensure subject to the Commission’s jurisdiction determining how long the pre-filing and
that timely decisions are made and that in National Corridors. DOE retains lead NEPA processes will take. Allegheny
the responsibilities of each agency are agency authority for coordinating states that a two-year process for
met. The Commission intends to work Federal action on facilities not subject to authorization is too long for extensive,
with DOE and the participating agencies the Commission’s delegated authority. reliability-driven transmission projects.
to ensure that all Federal permit 115. As stated in the NOPR and
5. Timeframe for Pre-Filing above, because of the potential
decisions are rendered in a timely
manner. 112. Because of the potential for differences between projects, the
108. National Grid states that the differences between projects, the Commission cannot establish or predict
Commission should request that DOE Commission does not propose to set timeframes for electric transmission
delegate lead agency status to the exact timeframes for the pre-filing projects proceedings. NEPA requires the
Commission at the time the process. The timeframe will depend Commission to conduct an independent
Commission’s pre-filing process begins upon, among other things, the size of environmental analysis of a proposed
rather than at the filing of an the project, stakeholder participation, project. The Commission’s NEPA
application. Virginia Electric states that the applicant’s preparedness, and the analysis may require a more stringent
the Commission should try to amend its applicant’s progress at the State level. review of the environmental impacts
delegated authority to transfer DOE’s The Commission expects that the pre- than is required at the State level. The
pre-application coordination to the filing process for large, multistate pre-filing timeframe is dependent upon
Commission or coordinate and use ‘‘greenfield’’ projects, will take longer how far along the applicant is on
DOE’s pre-application process to the than the pre-filing process for minor compiling the information needed by
maximum extent practicable as its own modifications to existing facilities.30 the Commission, the complexity of the
pre-filing process. It contends that The Commission anticipates that the project, and what additional
anything else may require the applicant pre-filing process for extensive projects information will be required based on
to duplicate its agency review activities may take a year to complete. the specific issues raised for the
with the Commission and DOE. EEI Additionally, the environmental individual project. The Commission
requests that the Commission explain resource reports required under agrees that time is of the essence in the
the timing and coordination of its lead § 380.16, discussed below, will require siting of these facilities. Thus, it
agency authority with DOE and clarify comprehensive field work to compile believes that it is incumbent on a project
that filing requirements from permitting the information necessary to comply sponsor and States to work together in
agencies be relevant, and preferably with the Commission’s obligations an attempt to site the facilities at the
significant. under NEPA. State level. This would be the most
109. We anticipate working closely 113. Southern states that the expeditious way to site the facilities.
with DOE and other Federal agencies Commission should acknowledge that
under the terms of the DOE MOU to the time required for processing 6. Review of Director’s Decisions in Pre-
coordinate all Federal actions and to Filing
applications will vary and that the
ensure that DOE’s and Commission’s Commission may also lack authority to 116. Under § 50.5(f), the Director of
processes interact seamlessly and with require any deadline is met. American OEP will determine when there is
as little duplication of effort as possible. Transmission states that the sufficient information for the applicant
We expect that we will coordinate with Commission should create a definitive to file its application. Old Dominion
DOE on an ongoing basis on general timeline for the submission of requests that the Commission provide
issues regarding these matters, as well information and for the receipt of an opportunity for stakeholder comment
as on specific cases. In light of this, we responsive action by Commission staff. before the OEP Director determines that
see no need to seek amendment of DOI also urges the Commission to the pre-filing process is complete.
DOE’s delegation order. establish a chronological timeline to Allegheny states that since the
110. Progress contends that the assist applicants and permitting entities Commission had delegated broad
Commission should exercise lead to better understand the timing of steps authority to OEP, it should provide
agency authority in circumstances within the permitting process. EEI potential applicants with an
where Federal agencies are impeding opposes a uniform pre-filing process opportunity to seek Commission review
the construction of new transmission schedule. Allegheny states that minor of OEP’s decisions. Southern states that
facilities regardless of whether the State modifications should not require a full- the Commission should add a review
still has jurisdiction or if it is outside a blown pre-filing process. process to allow applicants to review
National Corridor. California PUC 114. Northern Wasco County Peoples and challenge a determination by the
similarly urges the Commission to use Utility District and Seattle City Light Director of OEP. It claims that an
its lead agency authority to get Federal state that since major transmission absence of due process could lead to
agencies to expeditiously review projects entail long lead-times for land court challenges. DOI requests that
applications during the time an acquisition, procurement, design/ Federal agencies be consulted prior to
application is filed at the State level. engineering and construction, they are the conclusion of the pre-filing process.
PSE&G encourages the Commission not concerned that the rule may 117. Stakeholders have various
to overstep its statutory authority in this unnecessarily prolong the amount of opportunities to comment during the
regard. time required to take action on project pre-filing process. Therefore, we do not
111. Under DOE’s May 17, 2006 applications. SDG&E states that the believe it is necessary to add any
delegation order, the Commission is rules should embody the urgency additional round of comments.
responsible for acting as lead agency reflected in the statute that energy Moreover, once the pre-filing process is
when an applicant has submitted an security may be at stake due to delays complete, the applicant will be filing an
application to the Commission to in transmission siting. EEI requests that application for Commission review of
construct or modify electric the proposed facility which will be
transmission facilities. Thus, the 30 Greenfield facilities are facilities that primarily noticed and subject to the Commission’s
Commission’s lead agency delegated will be located in new rights-of-way. intervention and protest procedures. As
a general matter, the Commission relies State proceeding to satisfy some of the Commission is required under NEPA to
on its staff to develop the record Commission’s filing requirements. do an independent review of
necessary for the Commission to act on environmental impacts. The
1. State Record
energy project applications, and it does Commission will take all filed
not anticipate entertaining interlocutory 122. The Commission received information into consideration as it
appeals regarding the Director of OEP’s numerous comments requesting that it conducts its review. Similarly, it will
pre-filing decisions. maximize the use of information, consider the State findings while it
notices, and materials produced during considers its own findings under FPA
E. Application Requirements the State siting process to avoid the section 216(b). Its ultimate
118. Pennsylvania PUC states that for costly duplication of materials.31 determination on whether to issue a
a more informed process the Specifically, Allegheny states that the permit, however, will be based on the
Commission should include procedures Commission should not require an entire record developed in the
whereby the application would publicly applicant to notify stakeholders, Commission proceeding after due
disclose what information or data the conduct public meetings, and submit consideration of all the issues raised.
application has omitted. Section 50.2(c) studies of information that are
duplicative of State commission 2. Exhibits
requires that the applicant provide all
information required in Part 50 unless it requirements. PHI Companies contend 126. Section § 50.7 contains the
shows that the information is not that, at a minimum, the Commission requirements for the exhibits that must
necessary. We find that this is sufficient should allow for a waiver of various pre- be filed with the application. The
to address the concern raised by filing and application steps that the exhibits will contain the technical data
Pennsylvania PUC. applicant can demonstrate have been needed for the Commission’s analysis of
satisfied in the State proceeding. the application. All the environmental
119. NRECA states that entities
Committees request that the data required under Part 380,
seeking permits should be required to
Commission require that the record specifically the Resource Reports
show that all requirements are met,
already developed for any State required under § 380.16, will be filed as
including Federal, State, and Tribal
permitting authority be filed and proposed Exhibit F. Engineering data
permitting requirements which would
included in the Commission’s record. and system analysis data must be filed
be consistent with the natural gas 123. California PUC states that the in Exhibits G and H.
regulations. Section 50.2(d) is identical Commission should incorporate the 127. The Massachusetts Energy Board
to the requirement in § 157.5(c) and no findings from the State siting process recommends that the Commission add
further modification is necessary. into its proceeding. SDG&E asserts that another exhibit that would require that
F. Filing Requirements the Commission should accept the the applicant submit construction
State’s environmental review to the information including: construction
120. Section 50.6 lists the general extent it satisfies the requirements of procedures; construction schedules;
requirements that need to be met when NEPA and to rely on prior NEPA plans to coordinate with local
filing an application for a permit. analysis performed as well. authorities; construction noise impacts
Section 50.6(e) requires that the Pennsylvania PSC states that the and noise mitigation; mitigation of
applicant demonstrate how its proposed Commission should incorporate the wetland impacts of construction; plans
project would satisfy the requirements work of already existing planning for mitigation of the traffic impacts of
of FPA section 216(b)(2) through (6). processes conducted either by regional project construction; and plans to
The Commission will review this State organizations or RTOs. SoCal inhibit unauthorized travel on the right-
information in addition to the technical Edison recommends that the of-way. These are all required to be filed
information provided in the Exhibits Commission adopt generally applicable under the environmental requirements
submitted under § 50.7 in making its standards for the submission of in Exhibit F or will be addressed in the
findings concerning the proposed previously collected materials to Commission environmental analysis.
project. As stated, the filing expedite the process. PPL Electric urges Therefore, additional exhibits are not
requirements in §§ 50.6 and 50.7 are the the Commission to rely on the aid of necessary.
basic information that the Commission State officials to navigate the State siting 128. Affiliated contends that either
will need for a generic project. However, procedures. § 50.6 or § 50.7 should require an
each project will have its own unique 124. It is our expectation that by exhibit which describes all tribal
issues that will need to be considered working with States, applicants, Federal interests in the project and outcomes
on a case-by-case basis. An applicant agencies and other stakeholders on an from all Tribal stakeholder participation
may request a waiver of a specific ongoing basis, we will be able to ensure, in the project pre-filing activities and
requirement if it believes it may not be to the maximum extent possible, that any issues discussed and whether they
applicable to its particular project. information developed in State were either resolved or unresolved and
Similarly, the Commission may request proceedings can be used, where details of the resolution or breakdown
additional information if it deems it is appropriate, at the Commission, thereby in discussions. Tribal governments or
necessary to address issues raised by a increasing efficiency and lessening agencies are required to be notified at
proposed project. burdens on all parties. the beginning of the pre-filing process.
121. Various commenters raised 125. While the Commission will In addition, information concerning
issues concerning the Commission’s accept any pertinent information tribal interests are required under
need for specific requirements in each developed in the State proceeding or § 360.16(f) and § 360.16(j). The
of the exhibits. Some requested that the elsewhere into its record, the Commission believes this is sufficient
Commission require additional basic information for the Commission to
information. Others question the 31 Communities, American Public Power, EEI, commence its review of a proposed
Commission’s need for some of the PHI Companies, PSE&G, NARUC, Allegheny, project. As stated, each project will raise
SDG&E, National Grid, American Transmission,
required information. Several SoCal Edison, Pennsylvania PUC, Western
its own unique issues for which the
commenters request that the Governor’s, Virginia Electric, PPL Electric, and Commission may request additional
Commission accept the record from the California PUC. information if it deems it is necessary to
address particular issues raised by a lines, and specific mitigation measures is applicable for a proposed project. If
proposed project. Any information to avoid or minimize environmental the Commission determines that an EA
developed during the pre-filing process impact; and (3) encourage and facilitate is appropriate, the Commission will
will be made part of the record and will public involvement in the accept an applicant-prepared
be considered by the Commission as it environmental review process. During preliminary draft. After reviewing the
conducts its substantive review when an the application process, the Commission draft, the Commission may still require
application is subsequently filed. will review the analysis created in the a third-party contractor to assist with
environmental document in concert finalizing the draft NEPA document.
a. Exhibit E—Maps
with the other information analyzed
129. Section 50.7(e) states that the during its review process to determine ii. Section 380.6—Actions That Require
format for maps will be determined if it is in the public interest to issue a EISs
during the initial pre-filing consultation. permit to construct the facilities. If it 135. Section 380.6 requires that an
American Transmission contends that determines that it is not, it will deny the EIS be prepared for major electric
the Commission should use a uniform application. transmission facilities using a right-of-
format that satisfies other government 132. Reinhardts state that the way in which there is no existing
agencies and avoids redundancy. Commission should broaden its rules facility.32 Affiliated proposes that the
Because technology changes over time, and its area of inquiry to reasonably Commission also add ‘‘for which there
the Commission will not specify a justify whether one State or region are likely to be endangered species
specific format in its regulations. should suffer the significant impacted, substantial issues under the
Particular formats will be addressed environmental and aesthetic burdens National Preservation Act, or a
during the initial pre-filing consultation. associated with large transmission significant impact to the natural or
Additionally, a potential applicant may infrastructure to bring economic benefit human environment.’’ The Commission
contact Commission staff at any time for and pollution reduction to another. The will require an EIS for these and several
guidance on the Commission’s required Commission’s mandate under the FPA other reasons. The decision on what
formats. is to determine if the proposed facility
needs to be addressed in the EIS
b. Exhibit F—Environmental is consistent with the public interest on
generally is determined on a case-by-
Requirements a national level. It may be that a
case basis based on the information
transmission facility will cross several
130. The Commission is required to compiled during the pre-filing process.
States in order to benefit consumers in
conduct an environmental analysis of a We do not believe it is appropriate to
other States. The fact that the facility
proposed electric transmission project add language that could be interpreted
may not benefit the State’s crossed by
under NEPA. Exhibit F requires that the to limit the Commission’s discretion to
the facility is not determinative on the
applicant file the environmental prepare an EIS.
Commission’s decision if the facility
information required under Part 380 of benefits a broader region. 136. Virginia Electric contends that
the Commission’s regulations. As stated, 133. Communities state that the the Commission should delete the
the filing requirements are the basic applicant should be required to ‘‘major’’ before ‘‘transmission facilities’’
information that the Commission will demonstrate a good faith attempt to in § 380.6 because FPA section 216
need for a generic project. However, negotiate access, and if access is denied, confers jurisdiction to the Commission
each project will have its own unique provide thorough research of all over all electric transmission facilities.
issues that will need to be considered available documentation regarding the The word major in § 380.6 denotes
on a case-by-case basis. At the pre-filing property. The Commission expects that when the Commission will prepare an
consultation and throughout the pre- the applicant will attempt to negotiate EIS under § 380.6 as opposed to an EA
filing process, Commission staff will access to as much of the proposed right- under § 380.5. The Commission will
work with the applicants and of-way as possible for survey purposes. still review all proposals for electric
stakeholders to determine the issues It is in landowners’ best interests to transmission facilities under its FPA
that arise for each project. Depending on allow the applicant access and to get jurisdiction.
those issues, the Commission staff may involved in the pre-filing process to
require additional information. iii. Section 380.10—Participation in
have input in the ultimate alignment of
Conversely, if certain of the filing Commission Proceeding
the proposed facility. During the pre-
requirements are not needed for certain filing and application processes, there is 137. In § 380.10(a)(2)(iii), the
projects, Commission staff will consider more flexibility to achieving shifts in Commission clarified that interventions
whether waivers are appropriate for alignment of the proposed facility to should not be filed in natural gas pre-
those requirements. accommodate individual landowner filing proceedings and in the proposed
131. Massachusetts Energy Board needs on their property. electric transmission pre-filing
states that the Commission should proceedings. Old Dominion points out
include regulatory procedures for i. Section 380.5—Actions That Require
EAs that while interested parties cannot
evaluating alternatives to a project, intervene in the pre-filing phase, they
minimizing environmental impacts, and 134. Section 380.5 (b)(14) provides can submit comments. New Jersey BPU
denying a permit to construct a project that under certain circumstances the states that this section should reference
that has significant avoidable adverse Commission may prepare an the stakeholder participation provided
impacts. The principal purposes of the environmental assessment (EA) instead in §§ 50.4 and 50.5 to clarify that
Commission’s environmental review are of an environmental impact statement
to: (1) Identify and assess the potential (EIS) for a proposed project. American 32 Section 380.6 also lists when EISs are required
impact on the natural and human Transmission seeks clarification on for natural gas pipelines and hydroelectric projects.
environment that would result from the whether the Commission will allow AEP requests that the Commission eliminate the
implementation of a proposed project; applicants the option of preparing a references to pipeline projects. Those sections were
added to assure the proper placement of the
(2) identify and recommend reasonable preliminary applicant-prepared semicolons and the word ‘‘and’’. They have no
alternatives, including, as appropriate, environmental assessment. The other purpose relative to electric transmission
alternatives other than transmission Commission will decide if an EA or EIS siting.
stakeholders have the right to be losses, criteria pollutants, and vii. Resource Report 4—Cultural
involved in the process. greenhouse gas emissions. The Resources
Section 380.10(a)(2)(iii) already refers Commission will review these impacts 146. Section 360.16(f) requires that
back to the pre-filing activities under of the proposed facilities, as required by the applicant file the information
§ 50.5. We do not believe any further NEPA and all other relevant needed for the Commission to
reference to that section is necessary. environmental laws. determine that it has complied with the
iv. Resource Report 1—General v. Resource Report 2—Water Use and requirements of the National Historic
Requirements Quality Preservation Act (NHPA). Wilderness
138. Resource Report 1 requires that states that Resource Report 4 should
142. Section 380.16(d) requires that explicitly state that the project must
the applicant describe, among other the applicant describe water quality and
things, the facilities associated with the comply with section 106 of the NHPA.
provide data sufficient to determine the DOI requests that the report should be
project, special construction and expected impact of the project and
operation procedures, and construction expanded to cover nationally and
effectiveness of mitigation, regionally significant historical and
timetables. National Grid contends that enhancement, or protective measures.
whether a project is going to be built in cultural resources. It also believes the
DOI urges the Commission to review the report should cover the potential
an existing right-of-way should dictate regional impact from local water use.
the amount and type of data needed on construction impacts on archeological
EEI states that the requirement that the sites which may be present in the
construction methods, workspace, and applicant identify known public and
related matters. As stated, specific identified project site.
private groundwater supply wells or 147. Resource Report 4 is specifically
projects will be considered on a case-by- springs is inappropriate for above-
case basis. Projects constructed in an designed to gather all the information
ground facilities. AEP contends that the necessary for the Commission to comply
existing right-of-way will raise different
Commission should eliminate this with NHPA section 106. We do not
issues than a greenfield facility.
requirement because it only pertains to believe it is necessary to specifically
139. Section 380.16(c)(2)(i), requires
maps and photos covering at least a one- pipeline projects. National Grid states state this in the list of information that
half mile wide corridor centered on the that the Commission should grant the Commission requires the applicant
electric transmission facility centerline. requests for waiver for this report for to file. Resource Report 4 requires that
Communities contend that a fair overhead electric transmission projects the applicant provide the information
definition of the area of impact should where no water use or quality effects requested by DOI. Moreover, the
begin with a minimum of one-half mile would occur. Commission’s environmental review
and require an evaluation of the extent 143. The construction of electric document will cover the potential
beyond that point for each type of transmission facilities will create impacts on the identified sites.
impact. National Grid states that the ground disturbance that may disrupt 148. Communities state that there is
map and photos should be consistent groundwater in the area of the no valid reason for allowing the delay
with the State’s corridor requirements. construction. Thus, the Commission in the filing of certain reports until
The Commission uses the one-half mile will require that the applicant comply immediately before the permit is issued.
distance as a generally acceptable with the requirements of this section. They contend that all such reports
distance for its map requirements. On a vi. Resource Report 3—Fish, Wildlife, should be filed with the application or
case-by-case basis, it will determine the and Vegetation the application may be deemed
extent of the area of impact based on the incomplete until such filings are made.
specific information gathered during the 144. Section 360.16(e) requires that The Commission does not believe it is
review process. the applicant file information describing necessary that the applicant have all the
140. Section 380.16(c)(2)(i) requires aquatic life, wildlife, and vegetation in cultural resources reports and plans
United States Geological Survey (USGS) the vicinity of the proposed project. completed before it issues a permit.
7.5-minutes series topographic maps or Massachusetts Energy Board requests Under some circumstance where access
maps of equivalent detail. The that the Commission require applicants to private property is denied, the
Massachusetts Energy Board contends to provide habitat information obtained applicant will not have access to the
that these maps are not adequate for a from State natural heritage officials. property to complete the report until
detailed evaluation of impacts in Section 360.16 (e)(8) requires that after the permit is issued and the
densely populated areas and requests a applicants include correspondence applicant gains access by eminent
better resolution of detail than USGS- from, among others, State fish and domain. The Commission will not
based maps. We agree that the impact of wildlife agencies. We believe this is authorize construction, however, until
a proposed facility in a densely sufficient to address Massachusetts permittee has complied with all the
populated area will raise different issues Energy Board’s concern. requirements of NHPA and all other
than a facility located in a rural area. 145. DOI requests that the applicant relevant environmental laws.
The Commission will address the identify Federal- and State-listed 149. National Grid contends that the
issues, as necessary, in each individual threatened or endangered species in the Commission should grant requests for
proceeding before the Commission. project area and the impacts to such waiver of Resource Report 4 if overhead
141. The Center for Biological species in this report. It also requests electric lines are on existing rights-of-
Diversity requests that the general the section be expanded to require way. Regardless of the location of the
content requirement include a full mitigation for invasive species. Sections facilities, the Commission will still need
lifecycle assessment and air quality and 360.16(e)(4) and (5) require that the to comply with NHPA section 106.
greenhouse gas emissions. It contends applicant address specific areas of
that the Commission’s NEPA analyses significant habitats or communities of viii. Resource Report 5—
must address the full lifecycle of electric species of special concern to the Socioeconomics
generation and include analysis, Federal- and State-listed or proposed 150. Section 360.16(g) requires that
mitigation measures, and alternatives threatened or endangered species or the applicant provide information
that address air quality impacts, energy critical habitat, respectively. concerning the impact of the proposed
project on the towns and counties in the conclusions would be highly risk, the potential effects of those
vicinity of the project. Section speculative. hazards on the facilities, and methods
360.16(g)(2) requires that the applicant 155. EEI and SoCal Edison assert that proposed to reduce the effects or risks.
evaluate the impact of any substantial there is no similar requirement in the National Grid states that this
immigration of people on governmental Commission’s regulation regarding the requirement should be eliminated for
facilities and services, and plans to siting of other energy infrastructure. overhead electric transmission line
reduce the impact on local SoCal Edison states that such an projects and required only for
infrastructure. analysis is not required by NEPA. EEI, underground projects, where the nature
151. EEI states that electric National Grid, and SoCal Edison also of the facility makes such analysis
transmission line construction typically note that this type of information is not relevant and appropriate.33
does not involve a large influx of generally required at the state level. Construction of electric transmission
workers into an area, so a requirement 156. Communities request that the facilities will require the placement of
for an evaluation of the impact of the analysis include all landowners, towers subject to substantial loads in
immigration of people and a fiscal residential and commercial, within the areas with potential geological hazards
impact analysis evaluating incremental entire area of impact and should require that the Commission would want to take
local government expenditures is a fiscal impact analysis on both local into account in its analysis. Therefore,
unnecessary. The construction of any and regional economies. Wilderness we will not eliminate this requirement.
major energy infrastructure facility has recommends that the Commission’s
the potential to require some influx of analysis use the methods described in x. Resource Report 7—Soils
workers into the areas. Depending on ‘‘Socio-Economic Framework for Public 160. Section 360.16(i) requires that
the facilities available, number of Land Management Planning: Indicators the applicant provide information on
employees, and duration of their stay for the West’s Economy’’. In addition, it the soils that will be affected by the
they may have a major impact on requests that the assessment consider proposed project, the effect on those
communities. This may especially be the potential impacts on the values of soils, and measures to minimize or
the case with the expedited construction public lands. avoid impact. EEI, AEP, and National
we expect for permitted projects. 157. After considering the comments Grid contend that the Commission
152. Under § 360.16(g)(7), the raised in this proceeding, the should eliminate this requirement
applicant is required to conduct a Commission agrees that the property because electric transmission projects
property value impact analysis of the value impact analysis should be will have no significant impacts on soil.
proposed transmission line for eliminated from the Final Rule. The We disagree. Whenever there is ground
residential properties located adjacent Commission believes that requiring disturbance and the possibility of
to or abutting the right-of-way. such information could significantly erosion, the Commission needs to
Numerous commenters recommended delay the development of transmission determine the potential impact of that
expansion or deletion of the proposed projects, which is contrary to the activity.
property value impact analysis. national interest. The Commission also 161. DOI recommends that this report
153. EEI requests that the Commission is concerned with the accuracy of such include a requirement to identify highly
delete the requirement for a property studies and the fact that no uniform erodible soils. Section 360.16(i)(1)
value impact analysis for residential methodology is available to calculate requires that the applicant list the soil
properties located adjacent or abutting the impact of transmission lines on associations that would be crossed and
to the proposed right-of-way. National property values. In many cases, such describe, among other things, the
Grid asserts that requiring property studies could be highly speculative and erosion potential. We think this
value impact for these facilities is inaccurate while providing limited adequately addresses DOI’s concern.
unwarranted and it would serve only to beneficial information to the public. xi. Resource Report 8—Land Use,
promote and fuel not-in-my-backyard Finally, the Commission agrees that Recreation, and Aesthetics
sentiment. It also contends that there is no particular rationale why such
assessing property values for virgin a study should be required when it is 162. Section 360.16(j) requires that
right-of-ways would be very time not required for other infrastructure the applicant describe the existing uses
consuming with no tangible benefits. projects before the Commission or of land within a quarter mile of the edge
154. Virginia Electric states that there generally required at the State level. of the proposed right-of-way and
is no consensus to support a conclusion 158. Given the speculative nature of changes to the land use if the project is
that transmission lines have any impact these reports and the time and resources approved. It also requires that the
on real property values and that the type the application would need to dedicate applicant list all buildings within a half-
of property value impact studies in this towards completion of this study, the mile of the center of the proposed right-
regulation would overstate, by double- Commission does not believe such a of-way. Communities state that the
counting, the normal right-of-way cost requirement is consistent with the Commission should clarify in the
for the project. SoCal Edison believes purpose of EPAct 2005. The regulation that not only must existing
such a requirement would be highly Commission will consider such land use be evaluated but also all
subjective and could significantly delay information when provided in making a permitted land use. Under § 360.16(j)(3),
approval of a transmission facility. EEI determination on the project, but such the applicant is required to provide
is concerned that a property value information will not be required. information on ‘‘planned development’’
impact study would be highly subjective in the project area, which is defined as
and could further complicate ix. Resource Report 6—Geological development included in a master plan
negotiations and communication Resources or on file with local planning authorities
between the transmission project 159. Section 350.16(h) requires that and would included permitted land use.
sponsor and homeowners in the vicinity the applicant describe geological

33 DOI requests that Resource Report 6 address
of the project. AEP states that the resources and hazards in the project
impacts to local aquifers or water sources which
Commission should reconsider area that might be directly or indirectly may supply water to local communities. These
requiring this information because it affected by the proposed action or that impacts are specifically addressed in Resource
will be time-consuming and the could place the proposed facilities at Report—2—Water use and quality.
163. DOI requests that this report regulations should emphasize the 171. Pre-filing is an information
include identification of the loss of protection of the special values of gathering process. During this process,
agricultural/grazing property within the public lands. Section 360.16(j)(4) Commission staff will work with the
project area. Section 360.16(j) requires requires that the applicant identify all applicant to make sure that all
that the applicant address changes to lands owned and controlled by Federal interested stakeholders, including any
those land uses that will occur if the or State agencies, as well as land owned tribes, have been made aware of the
project is approved. by private preservation groups in proposed project and have had an
164. EEI states that the requirement addition to parks and recreation areas. opportunity for their views and
that the applicant submit information We believe this sufficiently covers the recommendations to be considered. Any
regarding a corridor that is one-half mile areas of concern raised by Wilderness in issues particular to a proposed project
wide is unnecessarily broad, and could its comment. If Wilderness believes that will be raised and evaluated during the
pose an undue burden on the applicant, something was overlooked when an pre-filing process. Information
and would exceed the study corridor applicant makes a specific filing, it can developed during the pre-filing process
width used in many States. It contends file comments during the Commission’s will be made part of the record and will
that the appropriate corridor width will scoping period. be considered by the Commission as it
vary from State to State depending on 168. EEI states that the Commission’s conducts its review when an application
topography, the nature of development requirement that the applicant identify is subsequently filed.
in the vicinity, and other factors. Indian Tribes that may attach 172. Southern contends that the
Therefore, it requests that the Final Rule significance to the project’s right-of-way requirement in § 350.16(j)(6) to list all
be modified to permit the applicant to is broad and vague and should be schools, homes, and other structures
propose a corridor width that takes removed. It contends that there are within one-half mile of a proposed
these factors into account. In the transmission lines that are hundreds of facility and AM radio transmitters
alternative, EEI states that the Final Rule miles long and that it would be difficult within 10,000 feet imposes an enormous
should be modified to require to determine the ‘‘project vicinity’’. EEI burden with no discernible benefit. We
information be provided for a corridor asserts that the cultural resources disagree. It is more efficient for
that is 200 feet wide, an approach that consultations with Native Americans Commission staff to consider the land
it states is consistent with current required in § 380.16(f) and the use and aesthetic issues within a wider
practice in certain States. Southern requirement that the applicant identify area than to prematurely narrow the
raises similar concerns. AEP states that Native American religious sites and focus of the evaluation and scoping
the Commission’s land use requirement cultural properties in § 380.16(j)(4) process. Any lesser requirement might
of a quarter mile would be excessively should be sufficient to assure that require the applicant to do a more
costly. DOI also requests that the appropriate consideration is given to the
expansive review later in the process in
Commission explain the justification for response to stakeholder comments
impacts on tribal resources of a
the quarter-mile distance requirement. which could potentially extend the
proposed transmission facility.
165. The Commission believes that it processing time for the proposed
is reasonable to require preliminary 169. Affiliated states that the project.
information on land uses and inhabited applicant should provide names of all 173. Section 380.16(j)(11) requires
buildings within a half-mile corridor Indian tribes who may have permit that the applicant describe the visual
along a proposed transmission line. authority or the ability to consent to, or characteristics of the lands and waters
Having information about such areas withhold consent over, any aspect of the affected by the project. EEI states that
from the outset will enable the project. Affiliated also asserts that the significant visual impacts are inherent
Commission to more efficiently examine rule should describe the different in virtually all transmission line
minor routing alternatives or interests tribes have in projects, either construction and cannot be avoided or
modifications. In some instances, based as permitting and consenting entities minimized in most cases. Therefore, it
on a review of the preliminary materials inside the external boundaries of argues that the Commission’s
and information gained during the reservations, or outside of reservations requirement that the applicant describe
scoping process, the Commission may on tribal traditional lands or cultural how the facilities will impact the visual
request additional information. places. It should also explicitly cite, character of the project right-of-way and
166. Section 350.16(j)(4) requires that describe, and inform other stakeholders list measures to lessen these impacts
the applicant identify various areas of the Commission’s tribal obligations, should be modified to clarify that an
including, among others, sugar maple identify treaty rights, and any other applicant must only propose measures
stands, orchards and nurseries, game tribal interests that may be impacted by to lessen such impacts ‘‘to the extent
management areas, national or State the proposed project. Confederated practicable.’’ The Commission
forest, parks, golf courses, or Tribes of the Warm Springs Reservation understands that it is difficult to lessen
recreational or scenic areas. of Oregon (Confederated Tribes) the impact of an electric transmission
Massachusetts Energy Board requests requests that the Commission require an facility and will consider visual impacts
that the Commission add cranberry bogs applicant to identify treaty rights and on a case-by-case basis, but nevertheless
after orchards and nurseries. The any other tribal interests that may be needs visual impact information to
Commission will consider additional impacted by the proposed project in complete its NEPA and public interest
areas that need to be identified on a § 380.16(j)(5). analysis.
case-by-case basis depending on the 170. As discussed above, the 174. National Grid states that the
proposed project. Commission believes that the filing Commission should change this report
167. Wilderness requests that the requirements concerning tribal interests to require the applicant to identify and
Commission lands managed by the under § 360.16(f) and § 360.16(j) and the give a general description of the
Bureau of Land Management, the notification requirements under surrounding areas and describe the
National Park Service, and the U.S. § 50.4(c) are sufficient to provide the effect of the proposed project on those
Forest Service be specifically listed as basic information for the Commission to areas. A general description of the
requiring information in Resource commence its review of a proposed surrounding areas is not sufficient for
Report 8. It contends that the project. the Commission’s land use review. As
stated, it is more efficient for the interregional planning process and waive the requirements where the
Commission to consider land use issues should not be among the alternatives applicant can demonstrate that
within a wider area. evaluated by the Commission in the comparable requirements are being
construction permit application process. complied with at a local level. As
xii. Resource Report 9—Alternatives
Massachusetts Energy Board, New discussed above, an applicant may use
175. Section 380.16(k) requires that Jersey BPU, and Pennsylvania PUC all any information developed during its
the applicant describe alternatives to the request that the Commission consider planning stage and for the State
project and compare the environmental alternatives beyond new transmission proceeding to satisfy the Commission’s
impacts of the alternatives. Center for lines, including configuration and filing requirements. However, it must
Biological Diversity wants to ensure the design alternatives, upgrades to existing clearly explain and demonstrate how
full environmental impacts of the transmission facilities, and demand side that information complies with the
alternatives are considered. National alternatives. Reinhardts suggest the Commission’s specific requirements.
Grid states that the Commission should Commission consider ‘‘system
clarify that the applicant is only alternatives’’ to a proposed project as xiv. Resource Report 11—Design and
required to prepare resource reports for opposed to just route alternatives. Engineering
proposed projects, not alternatives. California PUC contends that the
American Transmission requests that Commission should consider 182. EEI states that the requirement
the Commission specify what is meant alternatives inside and outside the that the applicant submit detailed
by all alternatives, including the National Corridors and use all the design and engineering drawings
identity of the number of alternative information on alternatives developed showing all major project structures is
routes that must be considered. AEP in the State siting process. Communities inconsistent with typical industry and
states that Resource Report 9 would requests that the Commission require State permitting practice which is to
require excessive research, including the applicant to evaluate all only submit pole spotting or spacing
costly environmental analyses, to be technologically achievable alternatives. information and general consideration
completed on an undefined and 179. NEPA requires the Commission of structure type when siting
seemingly limitless number of to consider and discuss reasonable authorization is sought. It states that
alternative routes. Southern states that it alternatives; it does not require detailed engineering is then completed
is not clear how much information an consideration of patently unsuitable after a proposed transmission project is
applicant needs to collect to review and alternatives.34 The Commission’s authorized. EEI contends that electric
report on alternatives and that it could experience in the hydropower and gas transmission lines are subject to specific
lead to an enormous burden. pipeline programs is that the range of field designs along their entire length to
176. For the preliminary reports reasonable alternatives can best be accommodate particular circumstances.
required at the early stages of pre-filing, determined based upon the facts of a Therefore, it states it would be more
the applicant need only submit specific siting proposal. In light of the appropriate for the Commission to
information that would allow specific facts raised by individual require the submission of detailed
Commission staff to discern reasonable projects, the applicant will be required engineering information after a permit is
alternatives. As the Commission to address a variety of alternatives in the issued rather than beforehand. National
conducts its site visits and reviews the resource reports, including, where Grid states that this requirement should
comments submitted during the scoping appropriate, alternatives other than new be modified to require only maps of the
period, alternatives will be considered. transmission lines. Moreover, proposed siting route and drawings
Once the applicant reaches a decision reasonable alternatives can be identified depicting the predominate type of
regarding its final proposed route, it will by Commission staff or other structures to be used.
need to comply with the resource report stakeholders at various points during 183. The Commission expects the
requirements for that route before the the proceeding for consideration in the applicant to be able to commence
application is filed. NEPA process.
177. Wilderness states that construction when the Commission
alternatives should be identified to xiii. Resource Report 10—Reliability issues the permit. The applicant can
avoid the locations identified in and Safety develop its design during the pre-filing
Resource Report 8 or to explain why phase, but the Commission expects that
180. Section 380.16(l) requires that all design plans should be well-defined
they could not be avoided altogether. It the applicant address potential hazards
also requests that a transparent when it files its application.
to the public and how these will affect
comparison of costs and environmental reliability. Communities request that the 184. Massachusetts Energy Board
impacts should be included in this report include an evaluation of requests that the Commission require
section. The purpose of the homeland security issues and whether applicants to provide an explanation for
Commission’s NEPA analysis is to the project will result in energy any selection of a structure design that
analyze the potential environmental independence. Homeland security is different from structures already
impacts of a proposed project and related issues will be addressed on a present and an explanation of any
reasonable alternatives to that project. case-by-case basis. structure placement that is
Section 380.16(k) requires that 181. Southern states that the longitudinally offset from existing
applicants describe and evaluate Commission should not require an structures. Resource Report 1 requires
alternatives including a discussion of applicant to include a discussion on that the applicant describe the facilities
costs and benefits. While the avoidance potential acoustic or electric noise from associated with the proposed
of impacts to special land use areas is electric and magnetic fields (EMF). construction. If the Massachusetts
not specifically addressed in the National Grid contends that since these Energy Board believes additional
resource report, it will be explored requirements are duplicative of local information is required for a specific
through the course of the NEPA review. requirements, the Commission should project, it should file comments during
178. APPA states that non-wires the NEPA scoping process and those
alternatives should be thoroughly 34 See American Rivers v. FERC, 201 F.3d 1186, comments will be addressed in that
evaluated ‘‘up front’’ during the 1200 (9th Cir. 2000). proceeding.
c. Exhibit G—Engineering Data reliability assessments completed by detailed analysis of the projected cost
185. The Commission requires State commissions, ISO, RTO, energy impact on customers both inside and
specific engineering data to support its service companies and the like. New outside the National Corridors.
review of a proposed transmission line Jersey BPU states that the Commission California PUC states that the
in Exhibit G. National Manufacture’s analysis should include input from a description of project financing should
contend that flexibility should be RTO/ISO (if applicable) because they identify the specific mechanisms by
allowed in the permit application are in the best position to analyze the which the applicant will seek cost
impact new facilities will have on recovery, what categories of ratepayer
facilities description because the design
overall system performance. In costs would be recovered from, and
will probably not be finalized at the
determining whether to issue a permit what rate or other incentives the
time of permit application. It also notes
to construct the proposed facilities, the applicant proposes to seek. It contends
that filings have historically been made
Commission will review all processes that this will provide adequate
5 to 10 years before the final design is
that were conducted by the applicant transparency regarding the financial
completed. The Commission expects
with the relevant stakeholders in impact of the project on the State or
that the applicant will be prepared to
determining whether to approve the region.
commence construction when the 193. Cost recovery and the effect on
proposed facilities, including input
permit is issued. Thus, it will need to customer rates are not part of the
from RTOs and ISOs.
have all its final designs completed 190. Reinhardts contend that the proceeding to issue a construction
prior to when the Commission issues an Commission must consider how permit. The Commission will address
order on the merit of a proposed project. interstate transmission will impact issues related to the costs associated
186. Massachusetts Energy Board electricity available to individual States with the proposed facilities in separate
states that the Commission should and regions. They state that the rate proceedings filed under FPA
require applicants to provide: (1) Commission’s rules must include data section 205.35 Any concerns about cost
Existing and expected EMF cross- requirements that would shed light on recovery should be raised in those
sectional profiles for points along a potential reliability issues. They also proceedings.
proposed project and identify any low- assert that the rules should: (1) Require
cost mitigation of EMF; (2) information G. Critical Energy Infrastructure
full disclosure of all electric generation
on interference with existing cathodic Information
(new or existing) for which the new
protection systems; (3) an analysis of transmission facilities have been 194. Information filed during the pre-
noise levels: (4) engineering data on proposed; (2) require that alternatives to filing and application proceedings will
substations and switching station that the proposed transmission include likely contain critical energy
would be constructed or altered in alternative electric generation scenarios; infrastructure information (CEII). Under
connection with the transmission line and (3) require a detailed analysis of all § 50.4(c)(5), access to this information is
project; and (5) any other information impacts that would be imposed by subject to the CEII requirement in
that has been identified as a construction of the desired interstate § 388.113 of the Commission’s
requirement component of siting review transmission resources that are expected regulations.
or of an application to construct in the to feed into the new transmission 195. Western Energy Board,36
State in which the facility will be facilities to meet identifiable power NARUC, and CA Resources contend that
located. DOI also requests the needs. APPA and PJM suggest more the Commission should recognize that
Commission review the potential details concerning the reliability criteria State agencies with permitting or other
environmental impact of noise. the Commission will use to approve regulatory authority with respect to a
187. The information Massachusetts projects. PSEG Companies and APPA project are distinguishable from
Energy Board and DOI recommend the contend that there is a need for a broad individuals or businesses seeking CEII
Commission should require applicants congestion analysis. information for their own private
to provide is already required by 191. The Commission anticipates that interests. They state that such agencies
Resource Report 10. Should other DOE will designate corridors to help are invested by statute with
pertinent information be identified connect existing generation to load. In safeguarding the public interest and as
during the State siting process, this most cases, the proposed project will be such, have a need to know with respect
information may be filed for limited to transmission facilities to CEII, and should not be required to
consideration by the Commission. designed to achieve this purpose. The demonstrate a need for the CEII when
Commission’s decision on the proposed requesting this material. In their filings,
d. Exhibit H—System Analysis Data they make various recommendations for
project will take into account the
188. Exhibit H requires information to applicant’s submitted reliability and changes to the Commission’s CEII
evaluate the impact the proposed systems analysis, an analysis of regulations.
facilities will have on the existing alternatives, and an analysis of project 196. On September 21, 2006, in
electric transmission system impacts as required by NEPA. Docket No. RM06–23–000, the
performance, including an analysis of Additionally, based on the specific Commission issued a notice of proposed
existing and expected congestion, power issues that arise in individual projects, rulemaking regarding its regulations for
flow cases which include contingency the Commission may request additional access to CEII.37 Copies of the comments
data files, a list of assumptions and information to assure that the proposed 35 See, e.g., Allegheny Energy, Inc., 116 FERC ¶
guidelines used in the cases, a stability project is in compliance with any 61,058 (2006), American Electric Power Service
analysis, a short circuit analysis and a Commission-approved reliability Corp., 116 FERC ¶ 61,059 (2006). See also
concise analysis that explains how standard. Promoting Transmission Investment through
system reliability will be improved, how Pricing Reform, 71 FR 43294 (July 31, 2006); FERC
long-term regional planning is impacted e. Exhibit I—Project Cost and Financing Stats. & Regs. ¶ 31,222 (2006).
36 Washington Council adopts the comments of
and how congestion will be impacted on 192. Exhibit I requires general
the Western Energy Board.
the applicant’s entire system. information concerning the cost of the 37 Critical Energy Infrastructure Information, 71
189. Communities state that system proposed project. Communities state FR 58321 (Oct. 3, 2006); FERC Stats. & Regs. ¶
analyses should include all relevant that the applicant should provide a 32,607 (2006).
submitted by Western Energy Board, docket from both the applicant and appropriate protections. Western
NARUC, Washington Council, and CA stakeholders will be available for Governors raise similar concerns.
Resources have been placed in the anyone to comment on. During this 203. The Commission believes that in
official record in Docket No. RM06–23– process, Commission staff will work most instances, the Commission will
000, and will be addressed in that with the applicant to make sure that all make its ultimate determination on the
proceeding. interested stakeholders have been made basis of the paper record compiled in
197. DOI requests the Commission aware of the proposed project and have the proceeding. The Commission may
include a definition of CEII along with had an opportunity for their views and order a trial-type hearing, however,
an identified procedure for obtaining recommendations to be considered. The either on its own motion or the motion
CEII. The Commission finds that the Commission staff also will start its of any interested party of record in
reference in § 50.4(c)(5) to the CEII environmental scoping and review accordance with subpart E of Part 385
regulations § 388.113 is sufficient to process. During this process, of the regulations if the Commission
direct the reader to the Commission’s Commission staff will conduct public deems it appropriate.
procedures concerning CEII. meetings and/or technical conferences J. Permit Conditions
H. Accepting/Rejecting Applications and work with the applicant and all
stakeholders to formulate the issues 204. Section 50.11(b) requires that the
198. Under § 50.8(b), the Director of raised by a particular project and to permittee accept the permit in writing
OEP may reject an application that does compile the information that will be within 30 days from the date of the
not comply with any applicable statute, needed by the Commission to address order issuing the permit. EEI contends
rule, or order as provided for under those issues when it conducts the that the deadline should be extended to
§ 385.2001(b) of the Commission’s substantive review of the proposed allow the permittee to seek rehearing. It
regulations. Allegheny requests that the project during the application process. states that this is necessary because
Commission impose a 10-day deadline During pre-filing, Commission staff will certain aspects of the permit order may
for the rejection of applications as be available to provide guidance on the render the proposed project uneconomic
required under § 157.8(a) of the process to both the applicant and any or otherwise infeasible. Therefore, it
Commission’s natural gas regulations. interested stakeholder. states that the applicant’s rehearing
The Director of OEP will either notice 201. Once the Commission staff request must be addressed before it can
the application or reject it, in a timely determines that there is sufficient determine whether or not to accept the
manner. Assigning an arbitrary deadline information for the Commission to permit. Allegheny makes similar
for these actions is not in the interest of evaluate the proposed project, the arguments. The Commission agrees that
an applicant who is earnestly trying to applicant will file its application. At an applicant should be able to appeal
perfect an application. that point, the hearing envisioned under the Commission’s decision before it is
FPA section 216(b) will commence. The required to accept its permit and has
I. Hearings
application will be subject to the modified § 50.11(b) accordingly.
199. Section 50.3(e) states that the Commission’s notice, intervention, and 205. Los Angeles Department of Water
Commission will conduct a paper protest requirements. Based on the and Power (Los Angeles DWP) contends
hearing on applications for permits for information in the application and the that acceptance of a permit would
electric transmission facilities. NARUC information compiled during the require approval of its Board of
contends that the regulations do not application proceeding, the Commission Commissioners and that the approval
provide for notice and an opportunity will evaluate the proposed project and may take more than 30 days. Los
for a hearing as required under FPA issue an order on the merits. Thus, any Angeles DWP proposes that the 30 day
section 216(b). They argue that the interested stakeholder will have period be extended in response to a
major portion of the Commission’s numerous opportunities to participate reasonable request by the applicant. The
examination of the application and the not only informally during the pre-filing Commission may waive a rule for good
participation of the States occurs in the process, but also formally during the cause shown. If a permittee needs an
pre-filing process and that the applicant, application process. extension of time to accept its permit it
not the Commission, is tasked with 202. Southern contends that a paper may request a waiver of § 50.11(b).
deciding what kind of participation hearing should not preclude an 206. Section 50.11(c) requires, among
process will provide interested persons evidentiary hearing in the event that other things, that the facilities be
an opportunity to be heard. They state circumstances dictate one. Iowa Board constructed in a matter to prevent
that because the majority of the similarly argues that paper hearings interference with service furnished by
evaluative work performed with respect should not foreclose the possibility of a other public utilities. Imperial states
to the application will occur before the live hearing if it is more appropriate. that the construction, installation,
hearing process ever begins, the New Jersey BPU states that the operation, and maintenance of new
Commission will deprive interested Commission should determine the transmission facilities should be
persons of the ability to participate in a nature of the hearing depending on the conducted in a manner that prevents
fair and open process. NARUC also circumstances, including whether interference with service not only
states that during the pre-filing process material issues of fact are in dispute that furnished by public utilities, but also
the applicant can make its case to the cannot be adequately resolved on the services furnished by non-public
Commission before interested persons written record. Pennsylvania PUC urges utilities. We will add non-public
can intervene, test the information the Commission to adopt provisions that utilities to § 50.11(c).
provided by the applicant, and provide provide for a hearing that affords 207. Section 50.11(d) requires written
their own analysis without being subject entities an opportunity to present their authorization from the Director of OEP
to the Commission’s ex parte case in full using all due process prior to commencing construction or
restrictions. protections afforded by a contested on- initiating operations of the approved

200. Pre-filing is an information- the-record proceeding. SoCal Edison facilities. American Transmission states
gathering process. The Commission will states that when material disputes are that the Commission’s issuance of a
assign a docket number at the beginning raised, the Commission should have a permit should be sufficiently final so
of the process. All filings made in that full hearing before an ALJ with the that applicants can begin the
construction process, including making landowners consulted many years we note, any State or local permits
financial commitments. It contends that previously. The Commission is issuing issued with respect to jurisdictional
any further delay would be unnecessary. a permit to construct the facilities. If a facilities must be consistent with the
The Commission generally imposes a permit is transferred at any time before conditions of the Commission’s permit.
substantial number of conditions in its the facilities are constructed, the new The Commission encourages
orders authorizing project construction, permittee will be required to contact all cooperation between the applicants and
such as requests that the permittee landowners subject to easement local authorities. However, this does not
receive all final comments from various agreements that a different company mean that State and local agencies,
resource agencies before commencing will be constructing the facilities and through application of State or local
construction. Additionally, the who they will need to contact while the laws, may prohibit or unreasonably
permittee may not be able to conduct all facilities are being constructed. delay the construction of facilities
of the required surveys until it is able 211. Affiliated states that compliance approved by the Commission.38
to condemn the property with the with applicable tribal law should be 215. Communities state that while the
eminent domain authority received with included as condition to a permit. Commission may assert jurisdiction
the issuance of the Commission’s Section 50.11 details general conditions over the siting of transmission facilities,
permit. Thus, the Commission requires that will apply to all permits issued by it cannot ignore the role the States must
that the permittee complete all the Commission. The Commission also still play in the siting process. They
conditions precedent before it will will impose other conditions to address argue that the Commission is attempting
authorize the construction of the specific issues that will arise in a to limit State authority to only State
facilities. proceeding on a case-by-case basis. agencies that provide authorization
208. Virginia Electric states that 212. American Transmission states under Federal law. They contend that
written authorization obtained from the that the Commission should include this is inconsistent with the
Director of OEP should permit both reporting requirements which could requirements of FPA section 216(h)(3)
commencing construction of the capture any changes since a permit is which requires that the NEPA review
facilities and initiating operations. A issued. National Grid states that there process be coordinated with State
single permit will allow for the timely should be no ongoing reporting agencies conducting separate permitting
construction and operations of new requirements regarding operations and and environmental reviews.
transmission facilities. Generally, the maintenance. The Commission’s 216. FPA section 216(h), which is
Commission will not authorize the jurisdiction under FPA section 216 is to entitled ‘‘Coordination of Federal
commencement of service on the new issue permits to construct electric Authorizations for Transmission
facilities until it determines that the transmission facilities. Once the Facilities’’, directs the Commission,
rehabilitation and restoration of the facilities are constructed and under its delegated authority, to
right-of-way and other areas affected by operational and all the Commission’s ‘‘coordinate the Federal authorization
the project are proceeding satisfactorily. right-of-way restoration conditions have and review process under this
Accordingly, the permittee needs been met, the Commission’s jurisdiction subsection with * * * State agencies’’.
authorization from the Director of OEP over the facilities under FPA section Section 216(h)(3) specifically involves
to make the facilities available for 216 ends. Thus, there will be no only Federal authorizations. Under FPA
service. changes to the permits or any ongoing section 216(h)(4), however, the
209. Communities contend that in reporting and maintenance Commission can coordinate with ‘‘State
instances of delayed construction, there requirements. agencies that are willing to coordinate
should be a provision for reopening the their own separate permitting and
K. State and Local Permits
order granting the permit to allow for environmental reviews with the Federal
public scrutiny of the change of 213. Under §§ 50.5(c)(2) and (3) the
authorizations and environmental
circumstances to ensure that the delay applicant is required to include a
reviews.’’
is in the public interest. Section 50.11(e) description of the zoning requirements 217. As stated, under § 50.5(c)(3), in
requires that the facilities be completed for the facilities and a list of local the initial pre-filing filing requirements
within the timeframe specified in the entities with local authorization the applicant is required to list all local
Commission order. If the facilities are requirements, respectively. EEI states entities with local authorization
constructed as required by the that the requirements that the applicant requirements. Section 50.5(c)(3) also
Commission, there will be no reason to describe the zoning and site availability requires that the applicant explain how
revisit the Commission’s decision. for any permanent facilities and to it intends to account for the local
Section 50.11(e) also states that if the account for each of the local permitting permits in the environmental review
permittee does not complete the requirements could potentially be process and when it intends to file for
facilities within the specified timeframe misconstrued by localities to imply that such permits. Once the pre-filing
it must file a request for an extension of a transmission project sponsor must process commences, under § 50.5(e)(6),
time. obtain local permits. It contends that the applicant is required to submit a
210. Under § 50.11(g) a permitee must this is counter to the plain language of schedule detailing when it intends to
notify affected landowners that have FPA section 216 that preempts State and submit the applications with the local
executed easement agreements to local law, including zoning agency. Further, under § 50.5(e)(8), the
convey property rights for the proposed requirements. It requests that the applicant is required to submit status
facilities if the permit is transferred. EEI Commission clarify that the Final Rule reports updating its progress in
states that the requirement that the preempts State and local permitting obtaining those permits.
permit holder notify all affected requirements. American Transmission 218. Commission staff will work with
landowners if a permit is transferred requests that the Commission clarify the
the applicant and the local agencies

could be unduly burdensome in many need for zoning requirement throughout the pre-filing and
instances when the permittee no longer information.
knows the identity of landowners along 214. While the Commission may, 38 See, e.g., Schneidewind v. ANR Pipeline Co.,
the right-of-way because the where appropriate, require applicants 485 U.S. 293 (1988); National Fuel Gas Supply v.
transmission line was authorized and comply with State and local permitting, Public Service Comm’n, 894 F.2d 571 (2d Cir. 1990).
application process to get the define the terms ‘‘project’’ and request that the pre-filing notifications
information required for all applicable ‘‘transmission facility’’ to clarify that include a statement that the applicant
Federal and State permit processes they only pertain to the portions of will have the ability to use the power of
needed to site the proposed facilities. transmission facilities that a eminent domain to get the land for the
However, as discussed above, a State or transmission owner is unable to facility and the basis for that authority.
local agency cannot prevent the successfully site through a State Southern states that the Commission
construction of the facility through its process. Southern contends that the should not require an applicant to
permitting process, which is preempted Commission should consider defining summarize the State eminent domain
by Federal law in instances where our ‘‘project’’ to embody the triggering rules because the applicant would be
jurisdiction is triggered under FPA requirements in FPA section 216(b). The legally liable for the accuracy of this
section 216. For example, it would be only projects that the Commission will information.
inconsistent with the text, purpose and be issuing permits to are those that will 226. The Commission believes that
intent of FPA section 216 to allow a fall under FPA section 216(b). Thus, no the applicant should provide
State permitting agency to halt the further explanation of those terms is landowners with some basic
construction of a facility that has been necessary. information concerning what is
permitted by the Commission for the 222. National Grid requests that the involved in the eminent domain
very reason that the State agency Commission define ‘‘Electric process. The general public is probably
withheld approval of the project for transmission facilities’’ to include those not greatly informed on these matters
more than one year. To hold otherwise facilities, including various listed and may need to invest significant time
would essentially render FPA section equipment and materials, used for the and money just to get a basic
216 a nullity. transmission of electric energy in understanding. We do not believe that
interstate commerce for the sale of providing this information would put
L. Subsequent Modifications to Facilities electric energy at wholesale. the applicant at risk for unnecessary
219. Several commenters request Transmission facilities that will be litigation, especially if the applicant
clarification on how a permittee may subject to a Commission permit will prefaces its explanation with a
make minor improvements to the include all the facilities necessary to disclaimer statement. It can also refer
facilities authorized by the Commission provide service on the facilities the landowner to a State agency or the
after they are constructed. EEI requests approved by the Commission. Further State Attorney General for further
that the permit include provisions that definition of facilities in the regulations information concerning the laws of their
allow a permittee to make minor is unnecessary. State, if appropriate. Additionally, we
improvements after facilities are 223. Section 50.1 defines transmitting will require that the applicant explain
constructed. Allegheny states that the utility as an entity that owns, operates, that it has the right to acquire the
Commission should clarify the process or controls facilities used for the property by eminent domain under FPA
for making modifications to existing transmission of electric energy in section 216(e).
facilities to specify that an applicant is interstate commerce for the sale of 227. Communities suggest that if State
not required to first seek State approval. electric energy at wholesale. law limits eminent domain authority,
Allegheny further requests that when Massachusetts Energy Board states that the Federal court likewise is
such a modification is proposed, the the Commission should consider constrained. Southern states that the
Commission’s review be limited to the defining the terms ‘‘transmission’’ and Commission should make clear how,
proposed modifications, whether the ‘‘wholesale’’ in the definition of and to what extent, the United States
existing facility was sited by the transmitting utility or reference the District Courts are to employ State
Commission or State siting authority. existing CFR definitions. Section 50.1 practices and procedures as part of an
National Grid contends that a defines a transmitting utility consistent eminent domain proceeding
transmission siting permit is valid in with the definition in FPA section 3(23). commenced in a Federal forum. Section
perpetuity. It argues that otherwise, an The Commission does not believe any 216(e)(3) of the FPA states:
applicant would have no incentive for further definition is necessary. The practice and procedures of any action
investment. It also requests that the 224. Southern requests that the or proceeding conducted under this
Commission develop criteria to Commission define the term subsection in the district court of the United
determine whether project modification ‘‘applicant’’ and clarify that the States shall conform as nearly as practicable
requires notice to the Commission or a permitting process will only be to the practice and procedures in a similar
revision to the permit. available to transmission utilities, action or proceeding in the courts of the State
220. As stated, once the facilities are unless exceptional circumstances are in which the property is located.
constructed, the Commission’s shown. The Commission does not Thus, it is for the court to decide what
jurisdiction under FPA section 216 believe that it was Congress’ intent in procedures are appropriate for their
ends. All modifications to existing enacting EPAct 2005 to limit the individual proceedings.
transmission facilities will be subject to construction of electric transmission
O. Filing Fees/Funding
the provisions of FPA section 216 at the facilities in national interest
time the facilities are proposed. transmission corridors to any specific 228. Affiliated states that if Tribes are
Specifically, the facilities will have to entity. The Commission will accept any impacted by any project, a filing fee
be located in a then-designated National viable project proposed by any should be required by the Commission
Corridor and will have to qualify for the prospective transmission company. to fund reasonable tribal responses and
Commission’s jurisdiction under FPA requirements under these regulations.
N. Eminent Domain Issues Washington Council contends that the
section 216(b)(1).
225. Under § 50.4(c)(2)(i)(E), the Commission should require the
M. Definitions applicant must include a brief summary applicants fund reasonable State
221. Section 50.1 lists the terms the of what rights the affected landowner participation in FERC siting
Commission determined needed to be has at the Commission and in proceedings. Parks Association request
specifically defined in the regulations. proceedings under the eminent domain that the applicant fund third-party
Allegheny requests that the Commission rules of the relevant State. Reinhardts contractors for the research that other
agencies will need to do for the resource 230. The Commission believes that the Secretary. Also, Federal permitting
reports. The Commission does not the comments filed in response to the of electric transmission facilities used in
require that applicants fund any NOPR are sufficient for the Commission interstate commerce will occur only if,
participation in Commission to issue a Final Rule without further or when, States do not or cannot act on
proceedings and will not do so here. proceedings. By acting promptly, the an application, or have conditioned a
Commission is assured that it will have project in such a manner that the
P. Technical Conferences
its procedures required under FPA proposed construction or modification
229. APPA, NARUC, and CA section 216(c) in place when DOE will not significantly reduce congestion
Resources request that the Commission designates National Corridors. in interstate commerce or is not
hold a technical conference prior to economically feasible. Any estimates of
issuing the Final Rule to discuss various III. Information Collection Statement
the number of anticipated electric
issues raised in the NOPR. Specifically, 231. The Commission is submitting transmission construction permit
APPA requests that the Commission the following collection of information
applications are extremely variable,
hold a technical conference to help contained in this proposed rulemaking
ranging from two to 20 per year.
define diverse State and Federal to the Office of Management and Budget
processes and the regulator’s legal (OMB) for review under section 3507(d) 233. The Commission solicited
authorities. NARUC contends that the of the Paperwork Reduction Act of comments on the Commission’s need for
Commission should hold a technical 1995.39 The Commission will identify the information required by the
conference to give the State the information provided for under the proposed regulations, whether the
commissions an opportunity to address proposed Part 50 as FERC–729. information will have practical utility,
key matters related to the 232. The number of applicants for the accuracy of the provided burden
implementation of this rule. CA electric transmission permits in national estimates, ways to enhance the quality
Resources Agency requests that the interest electric transmission corridors and clarity of the information that the
Commission hold a technical conference is unknown. Proposed transmission Commission will collect, and any
or establish an informal workshop to projects would have to, among other suggested methods for minimizing the
develop solutions to the issue of the things, significantly reduce electric respondent’s burden, including the use
concurrent jurisdiction and with regard transmission congestion in a national of information techniques. The burden
to potential changes to the interest electric transmission corridor. estimates for complying with this
Commission’s CEII regulations. These corridors are yet to be defined by proposed rule are as follows:
Number of Number of Hours per Total annual

Data collection respondents responses response hours
FERC–729 ....................................................................................................... 10 1 9,600 96,000
The Commission did not receive any Upon approval of a collection of (202) 273–0873, e-mail:
specific comments concerning its information, OMB will assign an OMB michael.miller@ferc.gov]
burden estimates. Where commenters control number and an expiration date. 235. For submitting comments
raised concerning specific information Respondents subject to the filing concerning the collection(s) of
collection requirement would be requirements of this rule will not be information and the associated burden
burdensome to implement, the penalized for failing to respond to these estimate(s), please send your comments
Commission has addressed elsewhere in collections of information unless the to the contact listed above and to the
the rule. collections of information display a Office of Management and Budget,
Information Collection Costs: Because valid OMB control number or the Office of Information and Regulatory
of the regional differences and the Commission has provided justification Affairs, Washington, DC 20503,
various staffing levels that will be as to why the control number should [Attention: Desk Officer for the Federal
involved in preparing the not be displayed. Energy Regulatory Commission, phone:
documentation (legal, technical and Respondents: Businesses or other for (202) 395–4650, fax: (202) 395–7285, e-
support) the Commission is using an profit, State, local, or Tribal mail: oira_submission@omb.eop.gov. As
hourly rate of $150 to estimate the costs government. the OMB control number has not been
for filing and other administrative assigned to this information collection,
Necessity of the Information: The please use the docket number for
processes (reviewing instructions,
information collected from applicants reference in your comments.
searching data sources, completing and
will be used by the Commission to
transmitting the collection of IV. Environmental Analysis
review the suitability of the proposal for
information). The estimated annual cost
a permit to construct the proposed 236. The Commission is required to
is anticipated to be $14.4 million. The
electric transmission facilities. prepare an EA or an EIS for any action
Commission sought comments on these
estimates and did not receive any. 234. Interested persons may obtain that may have a significant adverse
Therefore, it will use these estimates in information on the reporting effect on the human environment.40 No
the Final Rule. requirements by contacting the environmental consideration is raised
Title: FERC–729 Electric following: Federal Energy Regulatory by the promulgation of a rule that is
Transmission Facilities. Commission, 888 First Street, NE., procedural in nature or does not
Washington, DC 20426 [Attention: substantially change the effect of
Action: Proposed Data Collections. Michael Miller, Office of the Executive legislation or regulations being
OMB Control No.: To be determined. Director, Phone: (202) 502–8415, fax: amended. The proposed regulations
39 44 U.S.C. 3507(d). 40 Order No. 486, Regulations Implementing the (Dec. 17, 1987), FERC Stats. Regs. Preambles 1986–
National Environmental Policy Act, 52 FR 47897 1990 ¶30,783 (1987).
implement the procedural filing as defined in section 351 of the Small within 50 feet of a proposed
requirements for applications to Business Regulatory Enforcement construction work area.
construct electric transmission facilities. Fairness Act of 1996. The Commission Director means the Director of the
Accordingly, neither an EIS nor EA is will submit the Final Rule to both Office of Energy Projects or his
required. houses of Congress and to General designees.
Accounting Office Federal authorization means permits,
V. Regulatory Flexibility Act
List of Subjects special use authorization, certifications,
237. The Regulatory Flexibility Act of opinions, or other approvals that may be
1980 (RFA) 41 generally requires a 18 CFR Part 50 required under Federal law in order to
description and analysis of final rules site a transmission facility.
that will have significant economic Administrative practice and
procedure, Electric power, Reporting National interest electric transmission
impact on a substantial number of small corridor means any geographic area
entities. The Commission expects and recordkeeping requirements.
experiencing electric energy
entities seeking approval for interstate 18 CFR Part 380 transmission capacity constraints or
transmission siting will be major congestion that adversely affects
transmission utilities capable of Environmental impact statements,
Reporting and recordkeeping consumers, as designated by the
financing complex and costly Secretary of Energy.
transmission projects. The Commission requirements.
Permitting entity means any Federal
anticipates that the high cost of By the Commission. Commissioner Kelly
dissenting in part with a separate statement or State agency, Indian tribe, multistate,
construction of transmission facilities or local agency that is responsible for
will bar the entry into this field by small attached.
Magalie R. Salas, issuing separate authorizations pursuant
entities as defined by the RFA. to Federal law that are required to
Therefore, the Commission concludes Secretary.
construct electric transmission facilities
that this proposed rule would not have ■ In consideration of the foregoing, the in a national interest electric
a significant economic impact on a Commission adds Part 50 and amends transmission corridor.
substantial number of small entities. Part 380, Chapter I, Title 18, Code of Stakeholder means any Federal, State,
VI. Document Availability Federal Regulations, as follows: interstate, Tribal, or local agency, any
■ 1. Part 50 is added to Subchapter B to affected non-governmental organization,
238. In addition to publishing the full read as follows:
text of this document in the Federal affected landowner, or interested
Register, the Commission provides all person.
PART 50—APPLICATIONS FOR
interested persons an opportunity to Transmitting utility means an entity
PERMITS TO SITE INTERSTATE
view and/or print the contents of this that owns, operates, or controls facilities
ELECTRIC TRANSMISSION FACILITIES
document via the Internet through used for the transmission of electric
FERC’s Home Page (http://www.ferc.gov) Sec. energy in interstate commerce for the
and in FERC’s Public Reference Room 50.1 Definitions. sale of electric energy at wholesale.
during normal business hours (8:30 a.m. 50.2 Purpose and intent of rules.
50.3 Applications/pre-filing; rules and § 50.2 Purpose and intent of rules.
to 5 p.m. Eastern time) at 888 First format. (a) The purpose of the regulations in
Street, NE., Room 2A, Washington DC 50.4 Stakeholder participation. this part is to provide for efficient and
20426. 50.5 Pre-filing procedures.
239. From FERC’s Home Page on the timely review of requests for permits for
50.6 Applications: general content. the siting of electric transmission
Internet, this information is available on 50.7 Applications: exhibits.
eLibrary. The full text of this document 50.8 Acceptance/rejection of applications.
facilities under section 216 of the
is available on eLibrary in PDF and 50.9 Notice of application. Federal Power Act. The regulations
Microsoft Word format for viewing, 50.10 Interventions. ensure that each stakeholder is afforded
printing, and/or downloading. To access 50.11 General conditions applicable to an opportunity to present views and
this document in eLibrary, type the permits. recommendations with respect to the
docket number excluding the last three Authority: 16 U.S.C. 824p, DOE Delegation need for and impact of a facility covered
digits of this document in the docket Order No. 00–004.00A. by the permit. They also coordinate, to
number field. the maximum extent practicable, the
§ 50.1 Definitions. Federal authorization and review
240. User assistance is available for
eLibrary and the FERC’s website during As used in this part: processes of other Federal and State
normal business hours from our Help Affected landowners include owners agencies, Indian tribes, multistate, and
line at (202) 502–8222 or the Public of property interests, as noted in the local entities that are responsible for
Reference Room at (202) 502–8371 Press most recent county/city tax records as conducting any separate permitting and
0, TTY (202) 502–8659. E-mail the receiving the tax notice, whose environmental reviews of the proposed
Public Reference Room at property: facilities.
public.reference room@ferc.gov. (1) Is directly affected (i.e., crossed or (b) Every applicant shall file all
used) by the proposed activity, pertinent data and information
VII. Effective Date and Congressional including all facility sites, rights-of-way, necessary for a full and complete
Notification access roads, staging areas, and understanding of the proposed project.
241. These regulations are effective temporary workspace; or (c) Every requirement of this part will
January 30, 2007. The Commission has (2) Abuts either side of an existing be considered as an obligation of the
determined, with the concurrence of the right-of-way or facility site owned in fee applicant which can only be avoided by
Administrator of the Office of by any utility company, or abuts the a definite and positive showing that the
Information and Regulatory Affairs of edge of a proposed facility site or right- information or data called for by the
OMB, that this rule is not a ‘‘major rule’’ of-way which runs along a property line applicable rules is not necessary for the
in the area in which the facilities would consideration and ultimate
41 5 U.S.C. 601–612. be constructed, or contains a residence determination of the application.
(d) The burden of assuring that all intends to respond to requests for The newspaper notice need only refer to
applications and information submitted information from the public as well as the pamphlet and indicate that it is
under this part is in an intelligible form Federal, State, and Tribal permitting available on the Commission’s website;
and any omission of data is justified agencies, and other legal entities with (C) A description of the applicant and
rests with the applicant. local authorization requirements. a description of the proposed project, its
(b) Document Availability. (1) Within location (including a general location
§ 50.3 Applications/pre-filing; rules and three business days of the date the pre- map), its purpose, and the timing of the
format.
filing materials are filed or application project;
(a) Filings are subject to the formal is issued a docket number, an applicant (D) A general description of the
paper and electronic filing requirements must ensure that: property the applicant will need from
for proceedings before the Commission (i) Complete copies of the pre-filing or an affected landowner if the project is
as provided in part 385 of this chapter. application materials are available in approved, how to contact the applicant,
(b) Applications, amendments, and all accessible central locations in each including a local or toll-free phone
exhibits and other submissions required county throughout the project area, number, the name of a specific person
to be furnished by an applicant to the either in paper or electronic format; and to contact who is knowledgeable about
Commission under this part must be (ii) Complete copies of all filed the project, and a reference to the
submitted in an original and 7 materials are available on the project project website. The newspaper notice
conformed copies. Web site. need not include a description of the
(c) When an application considered (2) An applicant is not required to property, but should indicate that a
alone is incomplete and depends vitally serve voluminous or difficult to separate notice is being mailed to
upon information in another reproduce material, such as copies of affected landowners and governmental
application, it will not be accepted for certain environmental information, on entities;
filing until the supporting application all parties, as long as such material is (E) A brief summary of what rights the
has been filed. When applications are publicly available in an accessible affected landowner has at the
interdependent, they must be filed central location in each county Commission and in proceedings under
concurrently. throughout the project area and on the the eminent domain rules of the
(d) All filings must be signed in applicant’s project website. relevant State. The newspaper notice
compliance with § 385.2005 of this (c) Project notification. (1) The does not need to include this summary;
chapter. applicant must make a good faith effort (F) Information on how to get a copy
(e) The Commission will conduct a to notify: all affected landowners; of the pre-filing information from the
paper hearing on applications for landowners with a residence within a company and the location(s) where
permits for electric transmission quarter mile from the edge of the copies of the pre-filing information may
facilities. construction right-of-way of the be found as specified in paragraph (b) of
(f) Permitting entities will be subject proposed project; towns and this section;
to the filing requirements of this section communities; permitting agencies; other (G) A copy of the Director’s
and the prompt and binding local, State, Tribal, and Federal notification of commencement of the
intermediate milestones and ultimate governments and agencies involved in pre-filing process, the Commission’s
deadlines established in the notice the project; electric utilities and Internet address, and the telephone
issued under § 50.9. transmission owners and operators that number for the Commission’s Office of
(g) Any person submitting documents are or may be connected to the External Affairs; and
containing critical energy infrastructure application’s proposed transmission (H) Information explaining the pre-
information must follow the procedures facilities; and any known individuals filing and application process and when
specified in § 388.113 of this chapter. that have expressed an interest in the and how to intervene in the application
State permitting proceeding. proceedings.
§ 50.4 Stakeholder participation.
Notification must be made: (ii) The application notification must
A Project Participation Plan is (i) By certified or first class mail, sent: include the Commission’s notice issued
required to ensure stakeholders have (A) Within 14 days after the Director under § 50.9.
access to accurate and timely notifies the applicant of the (3) If, for any reason, a stakeholder
information on the proposed project and commencement of the pre-filing process has not yet been identified when the
permit application process. under § 50.5(d); notices under this paragraph are sent or
(a) Project Participation Plan. An (B) Within 3 business days after the published, the applicant must supply
applicant must develop a Project Commission notices the application the information required under
Participation Plan and file it with the under § 50.9; and paragraphs (c)(2)(i) and (ii) of this
pre-filing materials under § 50.5(c)(7) (ii) By twice publishing a notice of the section when the stakeholder is
that: pre-filing request and application identified.
(1) Identifies specific tools and filings, in a daily, weekly, and/or tribal (4) If the notification is returned as
actions to facilitate stakeholder newspaper of general circulation in each undeliverable, the applicant must make
communications and public county in which the project is located, a reasonable attempt to find the correct
information, including an up-to-date no later than 14 days after the date that address and notify the stakeholder.
project Web site and a readily a docket number is assigned for the pre- (5) Access to critical energy
accessible, single point of contact filing process or to the application. infrastructure information is subject to
within the company; (2) Contents of participation notice the requirements of § 388.113 of this
(2) Lists all central locations in each (i) The pre-filing request notification chapter.
county throughout the project area must, at a minimum, include:
where the applicant will provide copies (A) The docket number assigned to § 50.5 Pre-filing procedures.
of all their filings related to the the proceeding; (a) Introduction. Any applicant
proposed project; and (B) The most recent edition of the seeking a permit to site new electric
(3) Includes a description and Commission’s pamphlet Electric transmission facilities or modify
schedule explaining how the applicant Transmission Facilities Permit Process. existing facilities must comply with the
following pre-filing procedures prior to (4) A list of all affected landowners (iii) Notify permitting entities and
filing an application for Commission and other stakeholders (include contact request information detailing any
review. names and telephone numbers) that specific information not required by the
(b) Initial consultation. An applicant have been contacted, or have contacted Commission in the resource reports
must meet and consult with the Director the applicant, about the project. required under § 380.16 of this chapter
concerning the proposed project. (5) A description of what other work that the permitting entities may require
(1) At the initial consultation meeting, already has been done, including, to reach a decision concerning the
the applicant must be prepared to contacting stakeholders, agency and proposed project. The responses of the
discuss the nature of the project, the Indian tribe consultations, project permitting entities must be filed with
contents of the pre-filing request, and engineering, route planning, the Commission, as well as being
the status of the applicant’s progress environmental and engineering provided to the applicant.
toward obtaining the information contractor engagement, environmental (4) Within 30 days, submit a mailing
required for the pre-filing request surveys/studies, open houses, and any list of all stakeholders contacted under
described in paragraph (c) of this work done or actions taken in paragraph (e)(3) of this section,
section. conjunction with a State proceeding. including the names of the Federal,
(2) The initial consultation meeting This description also must include the State, Tribal, and local jurisdictions’
will also include a discussion of identification of the environmental and representatives. The list must include
whether a third-party contractor is engineering firms and sub-contractors information concerning affected
likely to be needed to prepare the under contract to develop the project. landowner notifications that were
environmental documentation for the (6) Proposals for at least three returned as undeliverable.
project and the specifications for the prospective third-party contractors from (5) Within 30 days, file a summary of
applicant’s solicitation for prospective which Commission staff may make a the project alternatives considered or
third-party contractors. selection to assist in the preparation of under consideration.
(3) The applicant also must discuss the requisite NEPA document, if the (6) Within 30 days, file an updated
how its proposed project will be subject Director determined a third-party list of all Federal, State, Tribal, and
to the Commission’s jurisdiction under contractor would be necessary in the local agencies permits and
section 216(b)(1) of the Federal Power Initial Consultation meeting. authorizations that are necessary to
Act. If the application is seeking (7) A proposed Project Participation construct the proposed facilities. The
Commission jurisdiction under section Plan, as set forth in § 50.4(a). list must include:
216(b)(1)(C) of the Federal Power Act, (d) Director’s notice. (1) When the (i) A schedule detailing when the
the applicant must be prepared to Director finds that an applicant seeking applications for the permits and
discuss when it filed its application authority to site and construct an authorizations will be submitted (or
with the State and the status of that electric transmission facility has were submitted);
application. adequately addressed the requirements (ii) Copies of all filed applications;
(c) Contents of the initial filing. An of paragraphs (a), (b), and (c) of this and
applicant’s pre-filing request will be section, and any other requirements (iii) The status of all pending permit
filed after the initial consultation and determined at the Initial Consultation or authorization requests and of the
must include the following information: meeting, the Director will so notify the
(1) A description of the schedule Secretary of Energy’s pre-application
applicant. process being conducted under section
desired for the project, including the (i) The notification will designate the
expected application filing date, desired 216(h)(4)(C) of the Federal Power Act.
third-party contractor, and
date for Commission approval, and (7) Within 60 days, file the draft
(ii) The pre-filing process will be
proposed project operation date, as well resource reports required in § 380.16 of
deemed to have commenced on the date
as the status of any State siting this chapter.
of the Director’s notification.
proceedings. (2) If the Director determines that the (8) On a monthly basis, file status
(2) A detailed description of the contents of the initial pre-filing request reports detailing the applicant’s project
project, including location maps and are insufficient, the applicant will be activities including surveys, stakeholder
plot plans to scale showing all major notified and given a reasonable time to communications, and agency and tribe
components, including a description of correct the deficiencies. meetings, including updates on the
zoning and site availability for any (e) Subsequent filing requirements. status of other required permits or
permanent facilities. Upon the Director’s issuance of a notice authorizations. If the applicant fails to
(3) A list of the permitting entities commencing an applicant’s pre-filing respond to any request for additional
responsible for conducting separate process, the applicant must: information, fails to provide sufficient
Federal permitting and environmental (1) Within 7 days, finalize and file the information, or is not making sufficient
reviews and authorizations for the Project Participation Plan, as defined in progress towards completing the pre-
project, including contact names and § 50.4(a), and establish the dates and filing process, the Director may issue a
telephone numbers, and a list of local locations at which the applicant will notice terminating the process.
entities with local authorization conduct meetings with stakeholders and (f) Concluding the pre-filing process.
requirements. The filing must include Commission staff. The Director will determine when the
information concerning: (2) Within 14 days, finalize the information gathered during the pre-
(i) How the applicant intends to contract with the selected third-party filing process is complete, after which
account for each of the relevant entity’s contractor, if applicable. the applicant may file an application.
permitting and environmental review (3) Within 14 days: An application must contain all the
schedules, including its progress in (i) Provide all identified stakeholders information specified by the
DOE’s pre-application process; and with a copy of the Director’s notification Commission staff during the pre-filing
(ii) When the applicant proposes to commencing the pre-filing process; process, including the environmental
file with these permitting and local (ii) Notify affected landowners in material required in part 380 of this
entities for the respective permits or compliance with the requirements of chapter and the exhibits required in
other authorizations. § 50.4(c); and § 50.7.
§ 50.6 Applications: general content. (f) A demonstration that the facilities applicant is not an individual, a
Each application filed under this part to be authorized by the permit will be conformed copy of its articles of
must provide the following information: used for the transmission of electric incorporation and bylaws, or other
(a) The exact legal name of applicant; energy in interstate commerce, and that similar documents.
its principal place of business; whether the proposed construction or (b) Exhibit B—State authorization. For
the applicant is an individual, modification: each State where the applicant is
partnership, corporation, or otherwise; (1) Is consistent with the public authorized to do business, a statement
the State laws under which the interest; showing the date of authorization, the
applicant is organized or authorized; (2) Will significantly reduce scope of the business the applicant is
and the name, title, and mailing address transmission congestion in interstate authorized to carry on and all
of the person or persons to whom commerce and protects or benefits limitations, if any, including expiration
communications concerning the consumers; dates and renewal obligations. A
application are to be addressed. (3) Is consistent with sound national conformed copy of applicant’s
(b) A concise description of energy policy and will enhance energy authorization to do business in each
applicant’s existing operations. interdependence; and State affected must be supplied upon
(c) A concise general description of (4) Will maximize, to the extent request.
the proposed project sufficient to reasonable and economical, the (c) Exhibit C—Company officials. A
explain its scope and purpose. The transmission capabilities of existing list of the names and business addresses
description must, at a minimum: towers or structures. of the applicant’s officers and directors,
Describe the proposed geographic (g) A description of the proposed or similar officials if the applicant is not
location of the principal project features construction and operation of the a corporation.
and the planned routing of the facilities, including the proposed dates (d) Exhibit D—Other pending
transmission line; contain the general for the beginning and completion of applications and filings. A list of other
characteristics of the transmission line construction and the commencement of applications and filings submitted by
including voltage, types of towers, service. the applicant that are pending before the
origin and termination points of the (h) A general description of project Commission at the time of the filing of
transmission line, and the geographic financing. an application and that directly and
character of area traversed by the line; (i) A full statement as to whether any significantly affect the proposed project,
and be accompanied by an overview other application to supplement or including an explanation of any
map of sufficient scale to show the effectuate the applicant’s proposals material effect the grant or denial of
entire transmission route on one or a must be or is to be filed by the those other applications and filings will
few 8.5 by 11-inch sheets. applicant, any of the applicant’s have on the application and of any
(d) Verification that the proposed customers, or any other person, with material effect the grant or denial of the
route lies within a national interest any other Federal, State, Tribal, or other application will have on those other
electric transmission corridor regulatory body; and if so, the nature applications and filings.
designated by the Secretary of the and status of each such application. (e) Exhibit E—Maps of general
Department of Energy under section 216 (j) A table of contents that must list all location of facilities. The general
of the Federal Power Act. exhibits and documents filed in location map required under § 50.5(c)
(e) Evidence that: compliance with this part, as well as all must be provided as Exhibit E. Detailed
(1) A State in which the transmission other documents and exhibits otherwise maps required by other exhibits must be
facilities are to be constructed or filed, identifying them by their filed in those exhibits, in a format
modified does not have the authority to appropriate titles and alphabetical letter determined during the pre-filing process
approve the siting of the facilities or designations. The alphabetical letter in § 50.5.
consider the interstate benefits expected designations specified in § 50.7 must be (f) Exhibit F—Environmental report.
to be achieved by the proposed strictly adhered to and extra exhibits An environmental report as specified in
construction or modification of submitted at the volition of applicant §§ 380.3 and 380.16 of this chapter. The
transmission facilities in the State; must be designated in sequence under applicant must submit all appropriate
(2) The applicant is a transmitting the letter Z (Z1, Z2, Z3, etc.). revisions to Exhibit F whenever route or
utility but does not qualify to apply for (k) A form of notice suitable for site changes are filed. These revisions
a permit or siting approval of the publication in the Federal Register, as must identify the locations by mile post
proposed project in a State because the provided by § 50.9(a), which will briefly and describe all other specific
applicant does not serve end-use summarize the facts contained in the differences resulting from the route or
customers in the State; or application in such a way as to acquaint site changes, and should not simply
(3) A State commission or other entity the public with its scope and purpose. provide revised totals for the resources
that has the authority to approve the The form of notice also must include the affected. The format of the
siting of the facilities has: name, address, and telephone number of environmental report filing will be
(i) Withheld approval for more than an authorized contact person. determined during the pre-filing process
one year after the filing of an required under § 50.5.
application seeking approval under § 50.7 Applications: exhibits.
(g) Exhibit G—Engineering data.
applicable law or one year after the Each exhibit must contain a title page (1) A detailed project description
designation of the relevant national showing the applicant’s name, title of including:
interest electric transmission corridor, the exhibit, the proper letter designation (i) Name and destination of the
whichever is later; or of the exhibit, and, if 10 or more pages, project;
(ii) Conditioned its approval in such a table of contents, citing by page, (ii) Design voltage rating (kV);
a manner that the proposed construction section number or subdivision, the (iii) Operating voltage rating (kV);
or modification will not significantly component elements or matters (iv) Normal peak operating current
reduce transmission congestion in contained in the exhibit. rating;
interstate commerce or is not (a) Exhibit A—Articles of (v) Line design features for
economically feasible. incorporation and bylaws. If the minimizing television and/or radio
interference cause by operation of the (iii) Cathodic protection scheme; and (i) Exhibit I—Project Cost and
proposed facilities; and (iv) Type of dielectric fluid and Financing. (1) A statement of estimated
(vi) Line design features that safeguards used to limit potential spills costs of any new construction or
minimize audible noise during fog/rain in waterways. modification.
caused by operation of the proposed (7) Technical diagrams that provide (2) The estimated capital cost and
facilities, including comparing expected clarification of any of the above items estimated annual operations and
audible noise levels to the applicable should be included. maintenance expense of each proposed
Federal, State, and local requirements. (8) Any other data or information not environmental measure.
(2) A conductor, structures, and previously identified that has been (3) A statement and evaluation of the
substations description including: identified as a minimum requirement consequences of denial of the
(i) Conductor size and type; for the siting of a transmission line in transmission line permit application.
(ii) Type of structures; the State in which the facility will be (j) Exhibit J—Construction, operation,
(iii) Height of typical structures; located. and management. A concise statement
(iv) An explanation why these (h) Exhibit H—System analysis data. providing arrangements for supervision,
structures were selected; An analysis evaluating the impact the management, engineering, accounting,
(v) Dimensional drawings of the proposed facilities will have on the legal, or other similar service to be
typical structures to be used in the existing electric transmission system rendered in connection with the
project; and performance, including: construction or operation of the project,
(vi) A list of the names of all new (and (1) An analysis of the existing and
if not to be performed by employees of
existing if applicable) substations or expected congestion on the electric
the applicant, including reference to any
switching stations that will be transmission system.
(2) Power flow cases used to analyze existing or contemplated agreements,
associated with the proposed new
the proposed and future transmission together with a statement showing any
transmission line.
(3) The location of the site and right- system under anticipated load growth, affiliation between the applicant and
of-way including: operating conditions, variations in any parties to the agreements or
(i) Miles of right-of-way; power import and export levels, and arrangements.
(ii) Miles of circuit; additional transmission facilities § 50.8 Acceptance/rejection of
(iii) Width of the right-of-way; required for system reliability. The cases applications.
(iv) A brief description of the area must:
traversed by the proposed transmission (a) Applications will be docketed
(i) Provide all files to model normal, when received and the applicant so
line, including a description of the single contingency, multiple
general land uses in the area and the advised.
contingency, and special protective (b) If an application patently fails to
type of terrain crossed by the proposed systems, including the special
line; comply with applicable statutory
protective systems’ automatic switching
(4) Assumptions, bases, formulae, and requirements or with applicable
or load shedding system; and
methods used in the development and (ii) State the assumptions, criteria, Commission rules, regulations, and
preparation of the diagrams and and guidelines upon which they are orders for which a waiver has not been
accompanying data, and a technical based and take into consideration granted, the Director may reject the
description providing the following transmission facility loading; first application as provided by § 385.2001(b)
information: contingency incremental transfer of this chapter. This rejection is without
(i) Number of circuits, with capability (FCITC); normal incremental prejudice to an applicant’s refiling a
identification as to whether the circuit transfer capability (NITC); system complete application. However, an
is overhead or underground; protection; and system stability. application will not be rejected solely
(ii) The operating voltage and (3) A stability analysis including on the basis that the environmental
frequency; and study assumptions, criteria, and reports are incomplete because the
(iii) Conductor size, type and number guidelines used in the analysis, company has not been granted access by
of conductors per phase. including load shedding allowables. affected landowners to perform required
(5) If the proposed interconnection is (4) A short circuit analysis for all surveys.
an overhead line, the following power flow cases. (c) An application that relates to a
additional information also must be (5) A concise analysis to include: proposed project or modification for
provided: (i) An explanation of how the which a prior application has been filed
(i) The wind and ice loading design proposed project will improve system and rejected, will be docketed as a new
parameters; reliability over the long and short term; application.
(ii) A full description and drawing of (ii) An analysis of how the proposed
a typical supporting structure including project will impact long term regional § 50.9 Notice of application.
strength specifications; transmission expansion plans; (a) Notice of each application filed,
(iii) Structure spacing with typical (iii) An analysis of how the proposed except when rejected in accordance
ruling and maximum spans; project will impact congestion on the with § 50.8, will be issued and
(iv) Conductor (phase) spacing; and applicant’s entire system; and subsequently published in the Federal
(v) The designed line-to-ground and (iv) A description of proposed high Register.
conductor-side clearances. technology design features. (b) The notice will establish prompt
(6) If an underground or underwater (6) Detailed single-line diagrams, and binding intermediate milestones
interconnection is proposed, the including existing system facilities and ultimate deadlines for the
following additional information also identified by name and circuit number, coordination, and review of, and action
must be provided: that show system transmission on Federal authorization decisions
(i) Burial depth; elements, in relation to the project and relating to, the proposed facilities.
(ii) Type of cable and a description of other principal interconnected system
any required supporting equipment, elements, as well as power flow and loss § 50.10 Interventions.
such as insulation medium pressurizing data that represent system operating Notices of applications, as provided
or forced cooling; conditions. by § 50.9, will fix the time within which
any person desiring to participate in the permitee within a period of time to be adding a new paragraph (c)(3) to read as
proceeding may file a petition to specified by the Commission in each follows:
intervene, and within which any order issuing the transmission line
interested regulatory agency, as construction permit. If facilities are not § 380.3 Environmental information to be
supplied by an applicant.
provided by § 385.214 of this chapter, completed within the specified
desiring to intervene may file its notice timeframe, the permittee must file for an (a) An applicant must submit
of intervention. extension of time under § 385.2008 of information as follows:
this chapter. * * * * *
§ 50.11 General conditions applicable to (b) An applicant must also:
permits.
(f) A permittee must file with the
Commission, in writing and under oath, * * * * *
(a) The following terms and an original and four conformed copies, (c) * * *
conditions, among others as the (3) Electric transmission project. For
as provided in § 385.2011 of this
Commission will find are required by pre-filing requests and applications filed
chapter, of the following:
the public interest, will attach to the (1) Within ten days after the bona fide under section 216 of the Federal Power
issuance of each permit and to the beginning of construction, notice of the Act identified in §§ 380.5(b)(14) and
exercise of the rights granted under the date of the beginning; and 380.6(a)(5).
permit. (2) Within ten days after authorized ■ 4. Section 380.5 is amended by
(b) The permit will be void and
facilities have been constructed and revising paragraphs (b)(11), (b)(12), and
without force or effect unless accepted
placed in service, notice of the date of (b)(13), and by adding a new paragraph
in writing by the permittee within 30
the completion of construction and (b)(14) to read as follows:
days from the date of the order issuing
commencement of service.
the permit. Provided that, when an § 380.5 Actions that require an
(g) The permit issued to the applicant
applicant files for rehearing of the order environmental assessment.
may be transferred, subject to the
in accordance with FPA section 313(a), (b) * * *
approval of the Commission, to a person
the acceptance must be filed within 30 (11) Approval of electric
who agrees to comply with the terms,
days from the issue date of the order of interconnections and wheeling under
limitations or conditions contained in
the Commission upon the application section 202(b), 210, 211, and 212 of the
the filing and in every subsequent Order
for rehearing or within 30 days from the Federal Power Act, unless excluded
issued thereunder. A permit holder
date on which the application may be under § 380.4(a)(17);
seeking to transfer a permit must file
deemed to have been denied when the (12) Regulations or proposals for
with the Secretary a petition for
Commission has not acted on such legislation not included under
approval of the transfer. The petition
application within 30 days after it has § 380.4(a)(2);
must:
been filed. Provided further, that when (13) Surrender of water power
(1) State the reasons supporting the
a petition for review is filed in licenses and exemptions where project
transfer;
accordance with the provisions of FPA (2) Show that the transferee is works exist or ground disturbing
section 313(b), the acceptance shall be qualified to carry out the provisions of activity has occurred and amendments
filed within 30 days after final the permit and any Orders issued under to water power licenses and exemptions
disposition of the judicial review the permit; that require ground disturbing activity
proceedings thus initiated. (3) Be verified by all parties to the or changes to project works or
(c) Standards of construction and operations; and
proposed transfer;
operation. In determining standard (14) Except as identified in § 380.6,
(4) Be accompanied by a copy of the
practice, the Commission will be guided authorization to site new electric
proposed transfer agreement;
by the provisions of the American transmission facilities under section 216
(5) Be accompanied by an affidavit of
National Standards Institute, of the Federal Power Act and DOE
service of a copy on the parties to the
Incorporated, the National Electrical Delegation Order No. 00–004.00A.
permit proceeding; and
Safety Code, and any other codes and ■ 5. Section 380.6 is amended by
(6) Be accompanied by an affidavit of
standards that are generally accepted by revising paragraphs (a)(3) and (a)(4) and
publication of a notice concerning the
the industry, except as modified by this by adding a new paragraph (a)(5) to read
petition and service of such notice on
Commission or by municipal regulators as follows:
all affected landowners that have
within their jurisdiction. Each electric
executed agreements to convey property § 380.6 Actions that require an
utility will construct, install, operate,
rights to the transferee and all other environmental impact statement.
and maintain its plant, structures,
persons, municipalities or agencies (a) * * *
equipment, and lines in accordance
entitled by law to be given notice of, or (3) Major pipeline construction
with these standards, and in a manner
be served with a copy of, any projects under section 7 of the Natural
to best accommodate the public, and to
application to construct a major electric Gas Act using right-of-way in which
prevent interference with service
generation facility. there is no existing natural gas pipeline;
furnished by other public or non-public
utilities insofar as practical. (4) Licenses under Part I of the
PART 380—REGULATIONS Federal Power Act and part 4 of this
(d) Written authorization must be IMPLEMENTING THE NATIONAL
obtained from the Director prior to chapter for construction of any
ENVIRONMENTAL POLICY ACT unconstructed water power projects;
commencing construction of the
facilities or initiating operations. ■ 2. The authority citation for part 380 and
Requests for these authorizations must continues to read as follows: (5) Major electric transmission
demonstrate compliance with all terms facilities under section 216 of the
Authority: 42 U.S.C. 4321–4370a, 7101– Federal Power Act and DOE Delegation
and conditions of the construction 7352; E.O. 12009, 3 CFR 1978. Comp., p. 142.
permit. Order No. 00–004.00A using right-of-
(e) Any authorized construction or ■ 3. Section 380.3 is amended by way in which there is no existing
modification must be completed and republishing paragraphs (a) introductory facility.
made available for service by the text and (b) introductory text, and by * * * * *
■ 6. Section 380.8 is revised to read as areas, should be planted in trees and describe facilities associated with the
follows: shrubs, or other appropriate landscaping project, special construction and
and should be installed to enhance the operation procedures, construction
§ 380.8 Preparation of environmental appearance of the facilities, consistent timetables, future plans for related
documents.
with operating needs. construction, compliance with
The preparation of environmental regulations and codes, and permits that
■ 9. A new § 380.16 is added to read as
documents, as defined in § 1508.10 of must be obtained. Resource Report 1
follows:
the regulations of the Council on must:
Environmental Quality (40 CFR § 380.16 Environmental reports for section (1) Describe and provide location
1508.10), on hydroelectric projects, 216 Federal Power Act Permits. maps of all project facilities, include all
natural gas facilities, and electric (a) Introduction. (1) The applicant facilities associated with the project
transmission facilities in national must submit an environmental report (such as transmission line towers,
interest electric transmission corridors with any application that proposes the substations, and any appurtenant
is the responsibility of the construction or modification of any facilities), to be constructed, modified,
Commission’s Office of Energy Projects, facility identified in § 380.3(c)(3). The replaced, or removed, including related
888 First Street NE., Washington, DC environmental report must include the construction and operational support
20426, (202) 219–8700. Persons 11 resource reports and related material activities and areas such as maintenance
interested in status reports or described in this section. bases, staging areas, communications
information on environmental impact (2) The detail of each resource report towers, power lines, and new access
statements or other elements of the must be commensurate with the roads (roads to be built or modified). As
NEPA process, including the studies or complexity of the proposal and its relevant, the report must describe the
other information the Commission may potential for environmental impact. length and size of the proposed
require on these projects, can contact Each topic in each resource report must transmission line conductor cables, the
this office. be addressed or its omission justified, types of appurtenant facilities that
■ 7. Section 380.10 is amended by unless the data is not required for that would be constructed, and associated
adding paragraph (a)(2)(iii) to read as type of proposal. If material required for land requirements.
follows: one resource report is provided in (2) Provide the following maps and
another resource report or in another photos:
§ 380.10 Participation in Commission exhibit, it may be cross referenced. If (i) Current, original United States
proceeding. Geological Survey (USGS) 7.5-minute
any resource report topic is required for
(a) * * * a particular project but is not provided series topographic maps or maps of
(2) * * * at the time the application is filed, the equivalent detail, covering at least a 0.5-
(iii) Commission pre-filing activities environmental report must explain why mile-wide corridor centered on the
commenced under §§ 157.21 and 50.5 of it is missing and when the applicant electric transmission facility centerline,
this chapter, respectively, are not anticipates it will be filed. with integer mileposts identified,
considered proceedings under part 385 (b) General requirements. As showing the location of rights-of-way,
of this chapter and are not open to appropriate, each resource report must: new access roads, other linear
motions to intervene. Once an (1) Address conditions or resources construction areas, substations, and
application is filed under part 157 that are likely to be directly or indirectly construction materials storage areas.
subpart A or part 50 of this chapter, any affected by the project; Nonlinear construction areas must be
person may file a motion to intervene in (2) Identify significant environmental shown on maps at a scale of 1:3,600 or
accordance with §§ 157.10 or 50.10 of effects expected to occur as a result of larger keyed graphically and by
this chapter or in accordance with this the project; milepost to the right-of-way maps. In
section. (3) Identify the effects of construction, areas where the facilities described in
* * * * * operation (including maintenance and paragraph (j)(6) of this section are
■ 8. Section 380.15 is amended by malfunctions), as well as cumulative located, topographic map coverage must
revising paragraph (c), the heading in effects resulting from existing or be expanded to depict those facilities.
paragraph (d), and paragraph (f)(5) to reasonably foreseeable projects; (ii) Original aerial images or
read as follows: (4) Identify measures proposed to photographs or photo-based alignment
enhance the environment or to avoid, sheets based on these sources, not more
§ 380.15 Siting and maintenance mitigate, or compensate for adverse than one year old (unless older ones
requirements. effects of the project; and accurately depict current land use and
* * * * * (5) Provide a list of publications, development) and with a scale of
(c) Safety regulations. The reports, and other literature or 1:6,000, or larger, showing the proposed
requirements of this paragraph do not communications, including agency transmission line route and location of
affect a project sponsor’s obligations to contacts, that were cited or relied upon transmission line towers, substations
comply with safety regulations of the to prepare each report. This list must and appurtenant facilities, covering at
U.S. Department of Transportation and include the names and titles of the least a 0.5 mile-wide corridor, and
recognized safe engineering practices for persons contacted, their affiliations, and including mileposts. The aerial images
Natural Gas Act projects and the telephone numbers. or photographs or photo-based
National Electric Safety Code for section (6) Whenever this section refers to alignment sheets must show all existing
216 Federal Power Act projects. ‘‘mileposts’’ the applicant may transmission facilities located in the
(d) Pipeline and electric transmission substitute ‘‘survey centerline stationing’’ area of the proposed facilities and the
facilities construction. * * * if so preferred. However, whatever location of habitable structures, radio
* * * * * method is chosen must be used transmitters and other electronic

(f) * * * consistently throughout the resource installations, and airstrips. Older
(5) For Natural Gas Act projects, the reports. images/photographs/alignment sheets
site of above-ground facilities which are (c) Resource Report 1—General must be modified to show any
visible from nearby residences or public project description. This report must residences not depicted in the original.
In areas where the facilities described in (2) Provide a description of site- would be affected, including unique
paragraph (j)(6) of this section are specific construction techniques that ecosystems or communities such as
located, aerial photographic coverage will be used at each major waterbody remnant prairie or old-growth forest, or
must be expanded to depict those crossing. significant individual plants, such as
facilities. Alternative formats (e.g., blue- (3) Describe typical staging area old-growth specimen trees.
line prints of acceptable resolution) requirements at waterbody and wetland (4) Describe the impact of
need prior approval by the crossings. Also, identify and describe construction and operation on aquatic
environmental staff of the Office of waterbodies and wetlands where staging and terrestrial species and their habitats,
Energy Projects. areas are likely to be more extensive. including the possibility of a major
(iii) In addition to the copies required (4) Include National Wetland alteration to ecosystems or biodiversity,
under § 50.3(b) of this chapter, the Inventory (NWI) maps. If NWI maps are and any potential impact on State-listed
applicant must send three additional not available, provide the appropriate endangered or threatened species.
copies of topographic maps and aerial State wetland maps. Identify for each Describe the impact of maintenance,
images/photographs directly to the crossing, the milepost, the wetland clearing and treatment of the project
environmental staff of the Commission’s classification specified by the U.S. Fish area on fish, wildlife, and vegetation.
Office of Energy Projects. and Wildlife Service, and the length of Surveys may be required to determine
(3) Describe and identify by milepost, the crossing. Include two copies of the specific areas of significant habitats or
proposed construction and restoration NWI maps (or the substitutes, if NWI communities of species of special
methods to be used in areas of rugged maps are not available) clearly showing concern to State, Tribal, or local
topography, residential areas, active the proposed route and mileposts. agencies.
croplands and sites where explosives Describe by milepost, wetland crossings (5) Identify all Federally-listed or
are likely to be used. as determined by field delineations proposed threatened or endangered
(4) Identify the number of using the current Federal methodology. species and critical habitat that
construction spreads, average workforce (5) Identify aquifers within excavation potentially occur in the vicinity of the
requirements for each construction depth in the project area, including the project. Discuss the results of the
spread and estimated duration of depth of the aquifer, current and consultation requirements listed in
construction from initial clearing to projected use, water quality, and known § 380.13(b) through § 380.13(b)(5)(i) and
final restoration, and any identified or suspected contamination problems. include any written correspondence that
(6) Discuss proposed mitigation resulted from the consultation. The
constraints to the timing of
measures to reduce the potential for initial application must include the
construction.
adverse impacts to surface water, results of any required surveys unless
(5) Describe reasonably foreseeable
wetlands, or groundwater quality. seasonal considerations make this
plans for future expansion of facilities,
Discuss the potential for blasting to impractical. If species surveys are
including additional land requirements
affect water wells, springs, and impractical, there must be field surveys
and the compatibility of those plans
wetlands, and measures to be taken to to determine the presence of suitable
with the current proposal.
detect and remedy such effects. habitat unless the entire project area is
(6) Describe all authorizations (7) Identify the location of known suitable habitat.
required to complete the proposed public and private groundwater supply (6) Identify all Federally-listed
action and the status of applications for wells or springs within 150 feet of essential fish habitat (EFH) that
such authorizations. Identify proposed construction areas. Identify potentially occurs in the vicinity of the
environmental mitigation requirements locations of EPA or State-designated, project. Provide information on all EFH,
specified in any permit or proposed in sole-source aquifers and wellhead as identified by the pertinent Federal
any permit application to the extent not protection areas crossed by the fishery management plans, that may be
specified elsewhere in this section. proposed transmission line facilities. adversely affected by the project and the
(7) Provide the names and mailing (e) Resource Report 3—Fish, wildlife, results of abbreviated consultations with
addresses of all affected landowners and vegetation. This report must NMFS, and any resulting EFH
identified in § 50.5(c)(4) of this chapter describe aquatic life, wildlife, and assessments.
and certify that all affected landowners vegetation in the vicinity of the (7) Describe site-specific mitigation
will be notified as required in § 50.4(c) proposed project; expected impacts on measures to minimize impacts on
of this chapter. these resources including potential fisheries, wildlife, and vegetation.
(d) Resource Report 2—Water use and effects on biodiversity; and proposed (8) Include copies of correspondence
quality. This report must describe water mitigation, enhancement, or protection not provided under paragraph (e)(5) of
quality and provide data sufficient to measures. Resource Report 3 must: this section, containing
determine the expected impact of the (1) Describe commercial and recommendations from appropriate
project and the effectiveness of recreational warmwater, coldwater, and Federal and State fish and wildlife
mitigative, enhancement, or protective saltwater fisheries in the affected area agencies to avoid or limit impact on
measures. Resource Report 2 must: and associated significant habitats such wildlife, fisheries, and vegetation, and
(1) Identify and describe by milepost as spawning or rearing areas and the applicant’s response to the
waterbodies and municipal water estuaries. recommendations.
supply or watershed areas, specially (2) Describe terrestrial habitats, (f) Resource Report 4—Cultural
designated surface water protection including wetlands, typical wildlife resources. In order to prepare this
areas and sensitive waterbodies, and habitats, and rare, unique, or otherwise report, the applicant must follow the
wetlands that would be crossed. For significant habitats that might be principles in § 380.14.
each waterbody crossing, identify the affected by the proposed action. (1) Resource Report 4 must contain:
approximate width, State water quality Describe typical species that have (i) Documentation of the applicant’s
classifications, any known potential commercial, recreational, or aesthetic initial cultural resources consultations,
pollutants present in the water or value. including consultations with Native
sediments, and any potable water intake (3) Describe and provide the affected Americans and other interested persons
sources within three miles downstream. acreage of vegetation cover types that (if appropriate);
(ii) Overview and Survey Reports, as cultural resource reports and plans have (3) Describe how the project will be
appropriate; been approved. located or designed to avoid or
(iii) Evaluation Report, as appropriate; (g) Resource Report 5— minimize adverse effects to the
(iv) Treatment Plan, as appropriate; Socioeconomics. This report must resources or risk to itself, including
and identify and quantify the impacts of geotechnical investigations and
(v) Written comments from State constructing and operating the proposed monitoring that would be conducted
Historic Preservation Officer(s) (SHPO), project on factors affecting towns and before, during, and after construction.
Tribal Historic Preservation Officers counties in the vicinity of the project. Discuss also the potential for blasting to
(THPO), as appropriate, and applicable Resource Report 5 must: affect structures, and the measures to be
land-managing agencies on the reports (1) Describe the socioeconomic taken to remedy such effects.
in paragraphs (f)(1)(i) through (iv) of this impact area. (4) Specify methods to be used to
section. (2) Evaluate the impact of any prevent project-induced contamination
(2) The initial application or pre-filing substantial immigration of people on from surface mines or from mine
documents, as applicable, must include governmental facilities and services and tailings along the right-of-way and
the documentation of initial cultural plans to reduce the impact on the local whether the project would hinder mine
resource consultation(s), the Overview infrastructure. reclamation or expansion efforts.
and Survey Reports, if required, and (3) Describe on-site manpower (i) Resource Report 7—Soils. This
written comments from SHPOs, THPOs, requirements and payroll during report must describe the soils that will
and land-managing agencies, if construction and operation, including be affected by the proposed project, the
available. The initial cultural resources the number of construction personnel effect on those soils, and measures
consultations should establish the need who currently reside within the impact proposed to minimize or avoid impact.
for surveys. If surveys are deemed area, will commute daily to the site from Resource Report 7 must:
necessary by the consultation with the (1) List, by milepost, the soil
outside the impact area, or will relocate
SHPO/THPO, the survey reports must associations that would be crossed and
temporarily within the impact area.
be filed with the initial application or describe the erosion potential, fertility,
(4) Determine whether existing
pre-filing documents. and drainage characteristics of each
housing within the impact area is
(i) If the comments of the SHPOs, association.
sufficient to meet the needs of the (2) Identify, by milepost, potential
THPOs, or land-management agencies
additional population. impact from: Soil erosion due to water,
are not available at the time the
(5) Describe the number and types of wind, or loss of vegetation; soil
application is filed, they may be filed
residences and businesses that will be compaction and damage to soil structure
separately, but they must be filed before
displaced by the project, procedures to resulting from movement of
a permit is issued.
(ii) If landowners deny access to be used to acquire these properties, and construction vehicles; wet soils and
private property and certain areas are types and amounts of relocation soils with poor drainage that are
not surveyed, the unsurveyed area must assistance payments. especially prone to structural damage;
be identified by mileposts, and (6) Conduct a fiscal impact analysis damage to drainage tile systems due to
supplemental surveys or evaluations evaluating incremental local movement of construction vehicles and
must be conducted after access is government expenditures in relation to trenching activities; and interference
granted. In those circumstances, reports, incremental local government revenues with the operation of agricultural
and treatment plans, if necessary, for that will result from construction of the equipment due to the possibility of large
those inaccessible lands may be filed project. Incremental expenditures stones or blasted rock occurring on or
after a permit is issued. include, but are not limited to, school near the surface as a result of
(3) The Evaluation Report and operating costs, road maintenance and construction.
Treatment Plan, if required, for the repair, public safety, and public utility (3) Identify, by milepost, cropland,
entire project must be filed before a costs. and residential areas where loss of soil
permit is issued. (h) Resource Report 6—Geological fertility due to construction activity can
(i) In preparing the Treatment Plan, resources. This report must describe occur. Indicate which are classified as
the applicant must consult with the geological resources and hazards in the prime or unique farmland by the U.S.
Commission staff, the SHPO, and any project area that might be directly or Department of Agriculture, Natural
applicable THPO and land-management indirectly affected by the proposed Resources Conservation Service.
agencies. action or that could place the proposed (j) Resource Report 8—Land use,
(ii) Authorization to implement the facilities at risk, the potential effects of recreation, and aesthetics. This report
Treatment Plan will occur only after the those hazards on the facility, and must describe the existing uses of land
permit is issued. methods proposed to reduce the effects on, and (where specified) within 0.25
(4) Applicant must request privileged or risks. Resource Report 6 must: mile of, the edge of the proposed
treatment for all material filed with the (1) Describe, by milepost, mineral transmission line right-of-way and
Commission containing location, resources that are currently or changes to those land uses that will
character, and ownership information potentially exploitable. occur if the project is approved. The
about cultural resources in accordance (2) Describe, by milepost, existing and report must discuss proposed mitigation
with § 388.112 of this chapter. The potential geological hazards and areas of measures, including protection and
cover and relevant pages or portions of nonroutine geotechnical concern, such enhancement of existing land use.
the report should be clearly labeled in as high seismicity areas, active faults, Resource Report 8 must:
bold lettering: ‘‘CONTAINS and areas susceptible to soil (1) Describe the width and acreage
PRIVILEGED INFORMATION—DO NOT liquefaction; planned, active, and requirements of all construction and
RELEASE.’’ abandoned mines; karst terrain; and permanent rights-of-way required for
(5) Except as specified in a final areas of potential ground failure, such as project construction, operation and
Commission order, or by the Director of subsidence, slumping, and landsliding. maintenance.
the Office of Energy Projects, Discuss the hazards posed to the facility (i) List, by milepost, locations where
construction may not begin until all from each one. the proposed right-of-way would be
adjacent to existing rights-of-way of any project vicinity, as well as available Indicate whether any transmission
kind. information on Indian traditional structures will exceed a 100:1 horizontal
(ii) Identify, preferably by diagrams, cultural and religious properties, slope (one foot in height for each 100
existing rights-of-way that will be used whether on or off of any Federally- feet in distance) from the closest point
for a portion of the construction or recognized Indian reservation. of the closest runway. List all airports
operational right-of-way, the overlap (ii) Information made available under registered with the FAA having no
and how much additional width will be this section must delete specific site or runway more than 3,200 feet in length
required. property locations, the disclosure of that are located within 10,000 feet of the
(iii) Identify the total amount of land which will create a risk of harm, theft, centerline of the proposed project.
to be purchased or leased for each or destruction of archaeological or Indicate whether any transmission
project facility, the amount of land that Native American cultural resources or to structures will exceed a 50:1 horizontal
would be disturbed for construction, the site at which the resources are slope from the closest point of the
operation, and maintenance of the located, or which would violate any closest runway. List all heliports located
facility, and the use of the remaining Federal law, including the within 5,000 feet of the centerline of the
land not required for project operation Archaeological Resources Protection Act proposed project. Indicate whether any
and maintenance, if any. of 1979, 16 U.S.C. 470w–3, and the transmission structures will exceed a
(iv) Identify the size of typical staging National Historic Preservation Act of 25:1 horizontal slope from the closest
areas and expanded work areas, such as 1966, 16 U.S.C. 470hh. point of the closest landing and takeoff
those at railroad, road, and waterbody (6) Identify, by milepost, all area of the heliport. Provide a general
crossings, and the size and location of residences and buildings within 200 feet description of each private airstrip,
all construction materials storage yards of the edge of the proposed transmission registered airport, and registered
and access roads. line construction right-of-way and the heliport, and state the distance of each
(2) Identify, by milepost, the existing distance of the residence or building from the centerline of the proposed
use of lands crossed by the proposed from the edge of the right-of-way. transmission line. Locate all airstrips,
transmission facility, or on or adjacent Provide survey drawings or alignment airports, and heliports on a routing map.
to each proposed project facility. sheets to illustrate the location of the (7) Describe any areas crossed by or
(3) Describe planned development on transmission facilities in relation to the within 0.25 mile of the proposed
land crossed or within 0.25 mile of buildings. transmission project facilities which are
proposed facilities, the time frame (if (i) Buildings: List all single-family and included in, or are designated for study
available) for such development, and multi-family dwellings and related for inclusion in: The National Wild and
proposed coordination to minimize structures, mobile homes, apartment Scenic Rivers System (16 U.S.C. 1271);
impacts on land use. Planned buildings, commercial structures, The National Trails System (16 U.S.C.
development means development which industrial structures, business 1241); or a wilderness area designated
is included in a master plan or is on file structures, churches, hospitals, nursing under the Wilderness Act (16 U.S.C.
with the local planning board or the homes, schools, or other structures 1132).
county. normally inhabited by humans or (8) For facilities within a designated
(4) Identify, by milepost and length of intended to be inhabited by humans on coastal zone management area, provide
crossing, the area of direct effect of each a daily or regular basis within a 0.5- a consistency determination or evidence
proposed facility and operational site on mile-wide corridor centered on the that the applicant has requested a
sugar maple stands, orchards and proposed transmission line alignment. consistency determination from the
nurseries, landfills, operating mines, Provide a general description of each State’s coastal zone management
hazardous waste sites, wild and scenic habitable structure and its distance from program.
rivers, designated trails, nature the centerline of the proposed project. (9) Describe the impact the project
preserves, game management areas, In cities, towns, or rural subdivisions, will have on present uses of the affected
remnant prairie, old-growth forest, houses can be identified in groups. areas as identified above, including
national or State forests, parks, golf Provide the number of habitable commercial uses, mineral resources,
courses, designated natural, recreational structures in each group and list the recreational areas, public health and
or scenic areas, or registered natural distance from the centerline to the safety, and the aesthetic value of the
landmarks, Native American religious closest habitable structure in the group. land and its features. Describe any
sites and traditional cultural properties (ii) Electronic installations: List all temporary or permanent restrictions on
to the extent they are known to the commercial AM radio Transmitters land use resulting from the project.
public at large, and reservations, lands located within 10,000 feet of the (10) Describe mitigation measures
identified under the Special Area centerline of the proposed project and intended for all special use areas
Management Plan of the Office of all FM radio transmitters, microwave identified under this section.
Coastal Zone Management, National relay stations, or other similar electronic (11) Describe the visual characteristics
Oceanic and Atmospheric installations located within 2,000 feet of of the lands and waters affected by the
Administration, and lands owned or the centerline of the proposed project. project. Components of this description
controlled by Federal or State agencies Provide a general description of each include a description of how the
or private preservation groups. Also installation and its distance from the transmission line project facilities will
identify if any of those areas are located centerline of the projects. Locate all impact the visual character of project
within 0.25 mile of any proposed installations on a routing map. right-of-way and surrounding vicinity,
facility. (iii) Airstrips: List all known private and measures proposed to lessen these
(5) Tribal resources. Describe Indian airstrips within 10,000 feet of the impacts. Applicants are encouraged to
tribes, tribal lands, and interests that centerline of the project. List all airports supplement the text description with
may be affected by the project. registered with the Federal Aviation visual aids.
(i) Identify Indian tribes that may Administration (FAA) with at least one (12) Demonstrate that applications for
attach religious and cultural runway more than 3,200 feet in length rights-of-way or other proposed land use
significance to historic properties that are located within 20,000 feet of the have been or soon will be filed with
within the project right-of-way or in the centerline of the proposed project. Federal land-management agencies with
jurisdiction over land that would be (5) Describe measures used to exclude (3) Supporting design report. The
affected by the project. the public from hazardous areas. applicant must submit, at a minimum,
(k) Resource Report 9—Alternatives. Discuss measures used to minimize the following supporting information to
This report must describe alternatives to problems arising from malfunctions and demonstrate that existing and proposed
the project and compare the accidents (with estimates of probability structures are safe and adequate to
environmental impacts of such of occurrence) and identify standard fulfill their stated functions and must
alternatives to those of the proposal. It procedures for protecting services and submit such information in a separate
must discuss technological and public safety during maintenance and report at the time the application is
procedural constraints, costs, and breakdowns. filed:
benefits of each alternative. The (6) Provide a description of the (i) An assessment of the suitability of
potential for each alternative to meet electromagnetic fields to be generated the transmission line towers and
project purposes and the environmental by the proposed transmission lines, appurtenant structures locations based
consequences of each alternative must including their strength and extent. on geological and subsurface
be discussed. Resource Report 9 must: Provide a depiction of the expected field investigations, including investigations
(1) Discuss the ‘‘no action’’ alternative compared to distance horizontally along of soils and rock borings and tests for
and other alternatives given serious the right-of-way under the conductors, the evaluation of all foundations and
consideration to achieve the proposed and perpendicular to the centerline of construction materials sufficient to
objectives. the right-of-way laterally. determine the location and type of
(2) Provide an analysis of the relative (7) Discuss the potential for acoustic transmission line tower or appurtenant
environmental benefits and impacts of and electrical noise from electric and structures suitable for the site;
each such alternative, including but not magnetic fields, including shadowing (ii) Copies of boring logs, geology
limited to: and reradiation, as they may affect reports, and laboratory test reports;
(i) For alternatives considered in the health or communication systems along (iii) An identification of all borrow
initial screening for the project but the transmission right-of-way. Indicate areas and quarry sites and an estimate
eliminated, describe the environmental the noise level generated by the line in of required quantities of suitable
characteristics of each alternative, and both dB and dBA scales and compare construction material;
the reasons for rejecting it. Where this to any known noise ordinances for (iv) Stability and stress analyses for
applicable, identify the location of such the zoning districts through which the all major transmission structures and
alternatives on maps of sufficient scale transmission line will pass. conductors under all probable loading
to depict their location and relationship (8) Discuss the potential for induced conditions, including seismic, wind,
to the proposed action, and the or conducted currents along the and ice loading, as appropriate, in
relationship of the transmission transmission right-of-way from electric sufficient detail to permit independent
facilities to existing rights-of-way; and and magnetic fields. staff evaluation.
(ii) For alternatives that were given (m) Resource Report 11—Design and (4) The applicant must submit two
more in-depth consideration, describe Engineering. This report consists of copies of the supporting design report
the environmental characteristics of general design and engineering described in paragraph (m)(3) of this
each alternative and the reasons for drawings of the principal project section at the time preliminary and final
rejecting it. Provide comparative tables facilities described under Resource design drawings are filed. If the report
showing the differences in Report 1—General project description. If contains preliminary drawings, it must
environmental characteristics for the the version of this report submitted with be designated a ‘‘Preliminary
alternative and proposed action. The the application is preliminary in nature, Supporting Design Report.’’
location, where applicable, of any applicant must state that in the Note: The following Appendix will not be
alternatives in this paragraph shall be application. The drawings must published in the Code of Federal Regulations.
provided on maps equivalent to those conform to the specifications
required in paragraph (c)(2) of this determined in the initial consultation Appendix—List of Commenters
section. meeting required by § 50.5(b) of this Affiliated Tribes of Northwest Indians
(l) Resource Report 10—Reliability chapter. Allegheny Power
and Safety. This report must address the (1) The drawings must show all major American Electric Power Service Corp.
potential hazard to the public from project structures in sufficient detail to American Public Power Association
facility components resulting from provide a full understanding of the American Transmission Co.
accidents or natural catastrophes, how project including: California Public Utilities Commission
these events will affect reliability, and (i) Plans (overhead view); California Resources Agency
what procedures and design features (ii) Elevations (front view); Center for Biological Diversity
(iii) Profiles (side view); and Communities Against Regional Interconnect
have been used to reduce potential Confederate Tribes of the Warm Springs
hazards. Resource Report 10 must: (iv) Sections.
(2) The applicant may submit Reservation of Oregon
(1) Describe measures proposed to Edison Electric Institute
protect the public from failure of the preliminary design drawings with the Imperial Irrigation District
proposed facilities (including pre-filing documents or application. The Iowa Utilities Board
coordination with local agencies). final design drawings may be submitted Kentucky Public Service Commission
(2) Discuss hazards, the during the construction permit process Lackawaxen River Conservancy
environmental impact, and service or after the Commission issues a permit Los Angeles Department of Water and Power
interruptions which could reasonably and must show the precise plans and Massachusetts Energy and Facilities Siting
ensue from failure of the proposed specifications for proposed structures. If Board
a permit is granted on the basis of National Association of Regulatory Utility
facilities.
Commissioners
(3) Discuss design and operational preliminary designs, the applicant must National Electric Manufacturers Association
measures to avoid or reduce risk. submit final design drawings for written National Grid USA
(4) Discuss contingency plans for approval by the Director of the Office of National Parks Conservation Association
maintaining service or reducing Energy Project’s prior to commencement National Rural Electric Cooperative
downtime. of any construction of the project. Association
New Jersey Board of Public Utilities view, it defies common sense to insert the regulated subject matter permits no other
New York Department of Public Service concept of ‘‘reject’’ or ‘‘deny’’ into this conclusion, or that the Congress has
New York Independent System Operator universally acknowledged definition. unmistakably so ordained.’’ 49 In short, courts
New York State Senator Wright Moreover statutory provisions must be read must start with the ‘‘basic assumption that
Northern Wasco Peoples Utility District in context.44 The language at issue here is Congress did not intend to displace state
Old Dominion Electric Cooperative not, as the majority asserts, ‘‘withheld law.’’ 50
Pacific Gas and Electric Co. approval.’’ Rather, it is ‘‘withheld approval There is no evidence to counter this
Pennsylvania Public Utilities Commission for more than 1 year after the filing of an ‘‘presumption against pre-emption.’’ To the
PEPCO Holdings, Potomac Electric Power application.’’ When ‘‘withheld approval’’ is contrary, I find it inconceivable that Congress
Co., Delmarva Power & Light Co., and read in its appropriate context, it simply would have specifically listed in section
Atlantic City Electric Co. cannot mean ‘‘deny,’’ because otherwise the 216(b)(1) a number of circumstances that will
PPL Electric Utilities Corp. provision must be read to mean that the trigger Commission jurisdiction, yet fail to
Progress Energy Commission would have jurisdiction when a include on that list denial of a permit. If
PSEG Companies state has ‘‘denied approval for more than 1 Congress had intended to take away the
Public Service Commission of Wisconsin year after the filing of an application.’’ This States’ authority to lawfully deny a permit,
Reinhardt, Laura and John reading is nonsensical; yet to read it as the surely it would have said so in unmistakable
San Diego Gas & Electric majority does would render the phrase ‘‘for terms.
Sayward, Mazur more than one year’’ superfluous. As noted Like me, I suspect that many will be
Seattle City Light in Cooper Industries, Inc. Aviall Services— surprised by the majority’s interpretation.
Southern California Edison Co. the very opinion the majority cites for the The Commission received 51 letters
Southern Company Services notion that it must give every word in a commenting on the proposed rule, including
Star Group statute some operative effect—any reading many that delved into minute details of the
The Wilderness Society that would render part of a statute entirely rule. Yet, no one opined, let alone argued,
U.S. Department of the Interior superfluous is something a court should be that the Commission has jurisdiction if a
Virginia Electric and Power Co. ‘‘loath to do.’’ 45 State denies a permit.
Virginia Farm Bureau Federation States have always had exclusive, plenary Indeed, there is evidence beyond the plain
Washington Energy Facility Site Evaluation jurisdiction over transmission siting.46 In meaning of the statute that Congress did not
Council 2005, Congress passed EPAct, which, for the intend to give the Commission the authority
Western Governor’s Association first time, carefully carves out a limited role to override a State’s denial of a permit
Western Interstate Energy Board and for the federal government in the area of application. In Section 216(b)(1)(A)(ii),
Committee on Regional Electric Power transmission siting. EPAct amended the FPA Congress told the States that they cannot
Cooperation to give the Commission the authority to site retain jurisdiction to site transmission
White Mountain Apache Tribe electric transmission facilities in five specific facilities unless they have the authority to
Wyoming Infrastructure Authority situations.47 The majority’s interpretation of ‘‘consider the interstate benefits expected to
KELLY, Commissioner, dissenting in part: Section 216(b)(1)(C)(i) would add a sixth be achieved by the proposed construction or
situation: The Commission would have modification of transmission facilities in the
Section 216(b)(1)(c)(i) of the Federal Power
jurisdiction to approve the siting of a State.’’ It makes little sense that Congress
Act provides that the Commission may issue
transmission line pursuant to federal law would have said, on the one hand, the State
a permit for the construction of an electric
where the State has lawfully denied an has the authority to review a permit
transmission line if the State having the
application pursuant to state law. application if it takes these factors into
authority to site the line has
The authority to lawfully deny a permit is account, but on the other hand, it doesn’t
(i) withheld approval for more than 1 year
critically important to the States for ensuring really matter if the State takes these factors
after the filing of an application seeking
that the interests of local communities and into account because if the State doesn’t
approval pursuant to applicable law or 1 year
their citizens are protected. What the approve the permit, it loses jurisdiction to
after the designation of the relevant national
Commission does today is a significant the Commission.
interest electric corridor, whichever is later.
inroad into traditional state transmission I realize that the majority is concerned that
The majority finds that this language also
siting authority. It gives states two options: the goal of Section 216 to encourage the
means that the Commission can issue a
Either issue a permit, or we’ll do it for them. construction of transmission facilities may be
permit for the construction of an electric
Obviously this is no choice. This is frustrated if our backstop authority does not
transmission line if the State has denied the
preemption. extend to denials of permits. However, I
permit application. I believe the majority’s
Courts ‘‘have long presumed that Congress believe that States, as well as applicants, will
interpretation flies in the face of the plain
does not cavalierly pre-empt’’ state law.48 act in good faith in processing requests for
language of the statute, the purposes of the
Indeed, courts should not find federal pre- permits. Moreover, as noted above, Congress
statute, well-established principles of
emption ‘‘in the absence of persuasive included the requirement that States must
statutory interpretation and supporting case
reasons—either that the nature of the have the authority to consider the interstate
law, and inappropriately preempts the States
benefits of applicants’ proposals.
in the process.
When interpreting a statute, there is an 44 Bailey v. United States, 516 U.S. 137, 145 Accordingly, States will be required to look
understanding that Congress says what it (1995). beyond their borders in considering whether
means and means what it says therefore, the
45 Cooper Industries, Inc. v. Aviall Services, Inc., to approve or deny permit applications. If a
court will first determine whether the 543 U.S. 157 (2004). State does not adequately take these benefits
language at issue has a plain and
46 FPA section 201(a) confers to the Commission into account and denies the permit
unambiguous meaning.42 To that end, words jurisdiction over the transmission of electric energy application, then applicants will have a
in interstate commerce and the sale of such energy remedy in court.
will be interpreted as taking their ordinary, at wholesale in interstate commerce, and notes that
contemporary, common meaning.43 For these reasons, I respectfully dissent.
such regulation extends ‘‘only to those matters
The word ‘‘withhold’’ is variously defined lllllllllllllll
which are not subject to regulation by the States.’’
as ‘‘to refrain from giving, granting, or See also New York v. FERC, 535 U.S. 1, 24 (2002) Suedeen G. Kelly
permitting’’ (American Heritage Dictionary), (‘‘FERC has recognized that the States retain [FR Doc. E6–20001 Filed 11–30–06; 8:45 am]
‘‘to hold back . . . keep from action—to significant control over local matters’’), citing Order
No. 888 at 31,782 & n. 543, FERC Stats. & Regs., BILLING CODE 6717–01–P
desist or refrain from granting, giving, or
Regs. Preamble, Jan. 1991-June 1996, ¶ 31,036,
allowing’’ (Webster’s Dictionary), and ‘‘to
31,632, 61 Fed. Reg. 21540 (1996) (‘‘Among other 49 Fla. Lime & Avocado Growers, Inc. v. Paul, 373
omit to disclose upon request; as, to withhold things, Congress left to the States authority to U.S. 132, 142 (1963); See also Gregory v. Ashcroft,
information’’ (Black’s Law Dictionary). In my regulate generation and transmission siting’’). 501 U.S. 452 (1991) (for a court to find federal pre-
47 See Section 216(b)(1) subsections (A)(i), (A)(ii), emption, it must be ‘‘unmistakably clear’’ that
42 Hartford Underwriters Ins. Co. v. Union B, (C)(i), (C)(ii). Congress intended to do so).
Planters Bank, N.A., 120 S.Ct. 1942, 1947 (2000). 48 Meditronic, Inc. v. Lohr, 518 U.S. 470, 485 50 Building & Construction Trades Council v.
43 Perrin v. United States, 444 U.S. 37, 42 (1979). (1996). Associated Builders, 507 U.S. 218 (1993).

Rule: Electric Utilities (Federal Power Act) : Interstate Electric Transmission Facilities Site Permit Applications Filing Requirements and Procedures

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Rule: Electric Utilities (Federal Power Act) : Interstate Electric Transmission Facilities Site Permit Applications Filing Requirements and Procedures

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69440 Federal Register / Vol. 71, No.

231 / Friday, December 1, 2006 / Rules and Regulations

FDC Date State City Airport FDC No. Subject

Issued November 16, 2006. DATES:Effective Date: This rule will

E. Application Requirements .......................................................................................................................................................... 118

i. Section 380.5-Actions that Require EAs ............................................................................................................... 134

15 Department of Interior, Iowa Utility Board,

and the imposition of additional D. Pre-Filing third-party contractor to assist in

sponsor and homeowners in the vicinity the applicant describe geological

restrictions. protections afforded by a contested on- initiating operations of the approved

the applicant and the local agencies

Number of Number of Hours per Total annual

FERC–729 ....................................................................................................... 10 1 9,600 96,000

* * * * * method is chosen must be used transmitters and other electronic

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