[Federal Register Volume 88, Number 157 (Wednesday, August 16, 2023)]
[Proposed Rules]
[Pages 55826-55855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17283]
[[Page 55825]]
Vol. 88
Wednesday,
No. 157
August 16, 2023
Part II
Department of Energy
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10 CFR Part 900
Coordination of Federal Authorizations for Electric Transmission
Facilities; Proposed Rule
Federal Register / Vol. 88, No. 157 / Wednesday, August 16, 2023 /
Proposed Rules
[[Page 55826]]
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DEPARTMENT OF ENERGY
10 CFR Part 900
[DOE-HQ-2023-0050]
RIN 1901-AB62
Coordination of Federal Authorizations for Electric Transmission
Facilities
AGENCY: Grid Deployment Office, U.S. Department of Energy.
ACTION: Notice of proposed rulemaking and request for comment.
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SUMMARY: The Department of Energy (DOE) is proposing to amend its
regulations for the timely coordination of Federal authorizations for
proposed interstate electric transmission facilities pursuant to the
Federal Power Act (FPA). Specifically, DOE is proposing to establish an
integrated and comprehensive Coordinated Interagency Transmission
Authorizations and Permits Program (CITAP Program); make participation
by application in the Integrated Interagency Preapplication (IIP)
Process a pre-condition for a decision under the CITAP Program; require
project proponents to develop resource reports and public engagement
plans for communities that would be affected by a proposed qualifying
project through an iterative and collaborative process with Federal
agencies while providing that Federal entities would remain responsible
for completion of environmental reviews, for government-to-government
consultation with Indian Tribes (and government-to-sovereign
consultation in the context of Native Hawaiian relations), and for any
findings and determinations; require project proponents to conduct
robust engagement with all Tribes and communities of interest that
would be affected by a proposed qualifying project; ensure that DOE may
carry out its statutory obligation to prepare a single Environmental
Impact Statement (EIS) sufficient for the purposes of all Federal
authorizations necessary to site a qualifying project; and align and
harmonize the IIP Process and implementation of the FPA with Title 41
of the Fixing America's Surface Transportation (FAST) Act.
DATES: DOE will accept comments, data, and information regarding this
proposed rule on or before October 2, 2023. Please refer to section V
(Public Participation--Submission of Comments) of the SUPPLEMENTARY
INFORMATION section of this proposed rule for additional information.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at www.regulations.gov, under docket
number DOE-HQ-2023-0050. Follow the instructions for submitting
comments. Alternatively, interested persons may submit comments,
identified by docket number DOE-HQ-2023-0050 and/or Regulation
Identification Number (RIN) 1901-AB62, by any of the following methods:
Email: [email protected]. Include docket number DOE-HQ-
2023-0050 and/or RIN 1901-AB62 in the subject line of the email.
Mail: Address written comments to U.S. Department of
Energy, Grid Deployment Office, 4H-065, 1000 Independence Avenue SW,
Washington, DC 20585.
Hand Delivery/Courier: U.S. Department of Energy, Grid
Deployment Office, 4H-065, 1000 Independence Avenue SW, Washington, DC
20585.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Participation--Submission of Comments'' (section V) of the
SUPPLEMENTARY INFORMATION section of this proposed rule.
Docket: The docket for this activity, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at www.regulations.gov, under docket number
DOE-HQ-2023-0050. All documents in the docket are listed in the
www.regulations.gov index. However, some documents listed in the index,
such as those containing information that is exempt from public
disclosure, may not be publicly available.
FOR FURTHER INFORMATION CONTACT: Liza Reed, U.S. Department of Energy,
Grid Deployment Office, 4H-065, 1000 Independence Avenue SW,
Washington, DC 20585. Telephone: (202) 586-2006. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background and Authority
A. Section 216(h): Implementation History
B. Need for Proposed Revisions
III. Section-by-Section Analysis
IV. Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act of 1995
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 12988
F. Review Under Executive Order 13132
G. Review Under Executive Order 13175
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under Executive Order 12630
J. Review Under Executive Order 13211
K. Review Under the Treasury and General Government
Appropriations Act, 1999
L. Review Under the Treasury and General Government
Appropriations Act, 2001
V. Public Participation--Submission of Comments
VI. Approval by the Office of the Secretary of Energy
I. Executive Summary
In this notice of proposed rulemaking (NOPR), DOE is proposing
regulatory amendments to 10 CFR part 900 in response to the
Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, also
known as the ``Bipartisan Infrastructure Law'') and the Inflation
Reduction Act (IRA) (Pub. L. 117-169). The IIJA and IRA made
significant investments in clean energy manufacturing and generation,
and the electrification of homes, businesses, and vehicles. The full
benefits of those investments will not be realized, however, unless the
United States can quickly, sustainably, and equitably expand our
electric transmission infrastructure. Transmission solutions are needed
to accommodate the generation and load changes enabled by the financial
incentives included in both laws.\1\
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\1\ DOE, National Transmission Needs Study (Feb. 2023),
available at: https://www.energy.gov/sites/default/files/2023-02/022423-DRAFTNeedsStudyforPublicComment.pdf.
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Given the capacity constraints and congestion on the nation's
electric transmission grid, it is imperative that the Federal
Government provide a clear, efficient, and well-coordinated process to
allow project proponents \2\ to obtain expedient approval to fill this
vital need. For these reasons, DOE is proposing to amend part 900 to
establish a Coordinated Interagency Transmission Authorizations and
Permits Program (CITAP Program) that will reduce the time required for
transmission project developers to receive decisions on Federal
authorizations \3\ for transmission projects.
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\2\ Throughout the preamble discussion, DOE uses terminology
defined in the proposed regulatory text. Unless the meaning of the
term is made clear from the context of the discussion, the first
occurrence of the term is accompanied by a footnote that provides
the proposed definition of the term. Proposed Sec. 900.2 defines
``project proponent'' as a person or entity who initiates the IIP
Process in anticipation of seeking a Federal authorization for a
qualifying project.
\3\ Section 216(h)(1) of the Federal Power Act defines ``Federal
authorization'' as ``any authorization required under Federal law in
order to site a transmission facility'' and provides that the term
includes ``permits, special use authorizations, certifications,
opinions, or other approvals as may be required under Federal law in
order to site a transmission facility.'' Proposed Sec. 900.2
defines ``authorization'' as any license, permit, approval, finding,
determination, or other administrative decision required under
Federal, state, local, or Tribal law to site an electric
transmission facility, including permits, special use authorization,
certifications, opinions, or other approvals. Proposed Sec. 900.2
defines ``Federal authorization'' as any authorization required
under Federal law.
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[[Page 55827]]
II. Background and Authority
The electric transmission system is the backbone of the United
States' electricity system, connecting electricity generators to
distributors and customers across the nation. Electric transmission
facilities often traverse long distances and cross multiple
jurisdictions, including Federal, State, Tribal, and private lands. To
receive Federal financial support or build electric transmission
facilities on or through Federal lands and waters, project developers
often must secure authorizations from one or multiple Federal agencies,
which can take considerable time and result in costly delays.
Recognizing the need for increased efficiency in the authorization
process for transmission facilities, the Energy Policy Act of 2005
(Pub. L. 109-58) (EPAct) established a national policy to enhance
coordination and communication among Federal agencies with authority to
site electric transmission facilities. Section 1221(a) of EPAct added a
new section 216 to Part II of the Federal Power Act (16 U.S.C. 824p)
(FPA), which sets forth provisions relevant to the siting of interstate
electric transmission facilities. Section 216(h) of the FPA (16 U.S.C.
824p(h)), ``Coordination of Federal Authorizations for Transmission
Facilities,'' requires the DOE to coordinate all Federal authorizations
and related environmental reviews needed for siting interstate electric
transmission projects, including National Environmental Policy Act of
1969 (Pub. L. 91-190, as amended, 42 U.S.C. 4321 et seq.) (NEPA)
reviews. DOE is proposing to amend its section 216(h) implementing
regulations, found in 10 CFR part 900, to implement this authority and
better coordinate review of Federal authorizations for proposed
interstate electric transmission facilities.
Section 216(h) of the FPA provides for DOE's coordination of
Federal transmission siting determinations for project proponents
seeking permits, special use authorizations, certifications, opinions,
or other approvals required under Federal law to site an electric
transmission facility.
First, section 216(h)(2) authorizes DOE to act as the lead agency
to coordinate Federal authorizations and related environmental reviews
required to site an interstate electric transmission facility. 16
U.S.C. 824p(h)(2). Section 216(h)(3) requires the Secretary of Energy,
to the maximum extent practicable under Federal law, to coordinate the
Federal authorization and review process with any Indian Tribes, multi-
state entities, and state agencies that have their own separate
permitting and environmental reviews. 16 U.S.C. 824p(h)(3).
Second, section 216(h)(4)(A) directs the Secretary to ``establish
prompt and binding intermediate milestones and ultimate deadlines for
the review of, and Federal authorization decisions relating to, the
proposed facility.'' 16 U.S.C. 824p(h)(4)(A). If an agency fails to act
on an application within the deadline set by DOE, or denies an
application, the project proponent or any state where the facility
would be located may appeal to the President for review of the
application. 16 U.S.C. 824p(h)(6)(A).
Third, the statute directs the Secretary to ``provide an
expeditious pre-application mechanism for prospective [project
proponents]. . . .'' 16 U.S.C. 824p(h)(4)(C).
Fourth, the statute directs the Secretary, ``in consultation with
the affected agencies,'' to ``prepare a single environmental review
document, which shall be used as the basis for all decisions on the
proposed project under Federal law.'' 16 U.S.C. 824p(h)(5)(A).
Finally, section 216(h)(7) directs the Secretary to issue
regulations necessary to implement section 216(h) and directs the
Secretary and the heads of all affected agencies to enter into a
memorandum of understanding (MOU) to ``ensure the timely and
coordinated review and permitting of electricity transmission
facilities.'' 16 U.S.C. 824p(h)(7).
As discussed in the following section, DOE entered into an
implementing MOU with eight other agencies and has established the pre-
application mechanism required by section 216(h)(4)(C) under
regulations at 10 CFR part 900. For the reasons explained in the
following sections, DOE is proposing modifications to update and expand
part 900.
A. Section 216(h): Implementation History
In 2006, nine Federal agencies with permitting or other Federal
authorization responsibility for the siting of electric transmission
facilities entered into a Memorandum of Understanding on Early
Coordination of Federal Authorizations and Related Environmental
Reviews Required in Order to Site Electric Transmission Facilities
(2006 MOU).\4\
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\4\ The 2006 MOU signatory agencies are the Department of Energy
(DOE), the Department of Agriculture (USDA), the Department of
Defense (DOD), the Department of the Interior (DOI), the Department
of Commerce (DOC), the Federal Energy Regulatory Commission (FERC),
the Environmental Protection Agency (EPA), the Council on
Environmental Quality (CEQ), and the Advisory Council on Historic
Preservation (ACHP). The 2006 MOU is publicly available at https://www.energy.gov/oe/articles/memorandum-understanding-early-coordination-federal-authorizations-and-related.
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On September 19, 2008, DOE published an interim final rule
establishing procedures at 10 CFR part 900 under which prospective
project proponents could request that DOE coordinate Federal
authorizations for the siting of interstate electric transmission
facilities and related environmental reviews pursuant to section 216(h)
(73 FR 54456). The interim final rule became effective on October 20,
2008. Also on September 19, 2008, DOE published a NOPR, which proposed
amendments to the interim final rule (73 FR 54461) (2008 NOPR).
Comments were filed in response to the 2008 interim final rule and 2008
NOPR. DOE addressed the comments submitted in response to both the
interim final rule and the 2008 NOPR in a 2011 NOPR issued on December
13, 2011 (77 FR 77432). In 2009, nine Federal agencies signed the
Memorandum of Understanding Regarding Coordination in Federal Agency
Review of Electric Transmission Facilities on Federal Land (2009 MOU),
superseding the 2006 MOU.\5\
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\5\ The nine 2009 MOU signatory agencies are the USDA, DOC, DOD,
DOE, EPA, CEQ, ACHP, DOI, and FERC. The 2009 MOU is publicly
available at https://www.energy.gov/sites/prod/files/Transmission%20Siting%20on%20Federal%20Lands%20MOU%20October%2023%2C%202009.pdf.
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On February 2, 2016, DOE withdrew the 2011 NOPR and instead
proposed revisions to 10 CFR part 900 that would establish an
Integrated Interagency Pre-Application (IIP) Process to encourage
cooperation prior to the submission of a formal application for
authorizations necessary to site transmission facilities (81 FR 5383).
On September 28, 2016, DOE issued a final rule establishing the IIP
Process (81 FR 66500). The final rule went into effect on November 28,
2016.
In May 2023, nine Federal agencies signed the Memorandum of
Understanding Regarding Facilitating Federal Authorizations for
Electric Transmission Facilities (2023 MOU), superseding the 2009
MOU.\6\ The 2023
[[Page 55828]]
MOU signatory agencies recognized that insufficient budgetary
resources, lack of agency staff, and limited mechanisms for
coordination across Federal agencies have contributed to delays in
permitting timelines for transmission facilities. In the 2023 MOU, DOE
agreed, in consultation with the heads of the other signatory agencies,
to update its regulations implementing section 216(h) within six months
of signing the 2023 MOU. The 2023 MOU expands efforts to ensure pre-
construction coordination and provide updated direction to Federal
agencies in expediting the siting, permitting, and construction of
electric transmission infrastructure. After the execution of the 2023
MOU but before the publication of this NOPR, Congress enacted the
Fiscal Responsibility Act of 2023 (Pub. L. 118-5) (FRA). Section 107 of
the FRA, entitled ``Timely and Unified Federal Reviews,'' amended NEPA
to require the designation of a lead agency empowered to perform a
coordinating and schedule-setting function. Although the source of
authority for this NOPR is section 216(h), through which Congress
specifically addressed Federal reviews for electric transmission
facilities, the reforms proposed in this NOPR are consistent with the
FRA and, DOE believes, likely to advance Congress' goal of achieving a
timely and unified review process among Federal agencies. In this NOPR,
DOE has referred to ``lead'' and ``co-lead'' agencies, consistent with
the terminology used in the 2023 MOU. DOE believes these terms to be
substantively equivalent to the FRA's ``lead'' and ``joint lead''
agencies. DOE seeks comment on its use of these terms.
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\6\ The nine 2023 MOU signatory agencies are USDA, DOC, DOD,
DOE, DOI, EPA, Federal Permitting Steering Improvement Steering
Council (FPISC), CEQ, and the Office of Management and Budget (OMB).
The 2023 MOU is publicly available at https://www.whitehouse.gov/wp-content/uploads/2023/05/Final-Transmission-MOU-with-signatures-5-04-2023.pdf.
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B. Need for Proposed Revisions
DOE is proposing to update its regulations implementing section
216(h) to establish the CITAP Program, improve the IIP Process, and
provide for the coordinated review of applications for Federal
authorizations necessary to site transmission facilities.
First, DOE is establishing a comprehensive and integrated CITAP
Program. Under this program, DOE proposes to: (i) provide for an
effective IIP Process to facilitate timely submission of materials
necessary for Federal authorizations and related environmental reviews
required under Federal law; (ii) set intermediate milestones and
ultimate deadlines for the review of such authorizations and
environmental reviews; and (iii) serve as the lead agency for the
preparation of a single EIS in compliance with NEPA, designed to serve
the needs of all relevant Federal entities \7\ and effectively inform
their corresponding Federal authorization decisions. These elements of
the CITAP Program are described in more detail throughout this proposed
rule.
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\7\ Proposed Sec. 900.2 defines ``Federal entity'' as any
Federal agency or department. That section also defines ``relevant
Federal entity'' as a Federal entity with jurisdictional interests
that may have an effect on a qualifying project, that is responsible
for issuing a Federal authorization for the qualifying project, that
has relevant expertise with respect to environmental and other
issues pertinent to or potentially affected by the qualifying
project, or that provides funding for the qualifying project. The
term includes participating agencies. The term includes a Federal
entity with either permitting or non-permitting authority; for
example, those entities with which consultation or review must be
completed before a project may commence, such as DOD for an
examination of military test, training or operational impacts.
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Second, pursuant to the FPA, DOE proposes to make the IIP Process a
mandatory precondition for participation in the CITAP Program.
Consistent with DOE's interpretation in 2016, in this rule, DOE does
not propose to require the participation of any Federal or non-Federal
entity \8\ in the IIP Process. 81 FR 66500. Rather, Federal entities
have agreed to participate through the 2023 MOU. Non-Federal entities
may participate at their discretion. DOE does, however, propose that a
project proponent's participation in the IIP Process is a prerequisite
for the coordination and schedule-setting aspects of the CITAP Program.
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\8\ Proposed Sec. 900.2 defines ``non-Federal entity'' as an
Indian Tribe, multi-state governmental entity, state agency, or
local government agency.
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DOE recognizes that this represents a departure from the IIP
Process established by DOE's 2016 rule. However, DOE has concluded that
a project proponent's participation in the IIP Process is necessary for
the success of other elements of the CITAP Program and for the
Secretary's satisfaction of the statutory obligations imposed by
section 216(h). Specifically, section 216(h)(4)(B) requires that the
Secretary determine that ``an application has been submitted with such
data as the Secretary considers necessary'' and requires that the
Secretary ``ensure'' that, once such data is submitted, ``all permit
decisions and related environmental reviews under all applicable
Federal law . . . be completed'' as soon as is practicable. DOE has
determined that participation in the IIP Process is necessary for a
project proponent to provide the ``data . . . the Secretary considers
necessary'' such that the Secretary may determine that the permit
decisions and related environmental reviews relevant to that
application may be completed within the time period DOE will establish
by schedule. As detailed further below, the IIP Process affords a
unique opportunity for project proponents to provide essential
information and to coordinate with Federal entities prior to submission
of applications for Federal authorizations. DOE has determined that it
will not be able to establish binding milestones and deadlines for
projects that do not complete the IIP Process. DOE will also not be
able to prepare a single EIS for such a project. Accordingly, DOE has
proposed to make participation in the IIP Process a mandatory
precondition for participation in those other aspects of the Program.
In 2016, when DOE issued its previous regulations, there was no
CITAP Program. Accordingly, DOE had no occasion then to consider
whether a project proponent was required to participate in the IIP
Process to benefit from the CITAP Program. For the reasons explained
above, DOE has determined that the CITAP Program requires a project
proponent's participation in the IIP Process. As discussed further
below, DOE tentatively concludes that the benefits of participating in
the IIP Process, and the resulting access to the CITAP Program, will
justify the costs to project proponents. DOE expects that the CITAP
Program will substantially accelerate the process by which transmission
projects are permitted and developed. The expected reduction in
permitting timelines will generate benefits that, while difficult to
quantify with specificity, are likely to significantly exceed the cost
of participating in the IIP Process.
Third, DOE proposes to improve the IIP Process to ensure that it
provides project proponents and Federal entities an opportunity to
identify as early as possible potential environmental and community
impacts associated with a proposed project. Accordingly, DOE proposes
to require that project proponents submit resource reports and public
participation and engagement plans, developed with guidance from
Federal entities, and participate in a series of meetings to ensure
that Federal entities have ample opportunities to provide this
guidance.
As proposed, the IIP Process is an iterative process, anchored by
three meetings: the initial meeting, the review meeting, and the close-
out meeting. These meetings, defined in proposed Sec. Sec. 900.5,
900.8 and 900.9, are milestones in the process, and are not
[[Page 55829]]
intended to preclude any additional meetings or communications between
the project proponent and the relevant Federal entities. The iterative
nature of the process is provided for in procedures for evaluating the
completeness and the suitability for relevant agency decision-making of
materials before each milestone.
The project proponent resource reports are intended to develop data
and materials that will facilitate Federal entities' review of the
project proponent's applications under a number of Federal statutes,
including, but not limited to, NEPA, section 106 of the National
Historic Preservation Act of 1966 (54 U.S.C. 306108) (NHPA), section 10
of the Rivers and Harbors Act (33 U.S.C. 403), section 404 of the Clean
Water Act (33 U.S.C. 1344) (CWA), and the Endangered Species Act (16
U.S.C. 1531 et seq.) (ESA). As proposed, drafts of the reports would be
submitted before the IIP Process review meeting. Federal entities
responsible for making determinations under those statutes would have
the opportunity to review the reports before the meeting and would then
be able to present any concerns at the meeting. The project proponent
would be required to submit final versions of the reports before the
IIP Process close-out meeting.
DOE recognizes that the information requested in the proposed
resource reports is extensive and that gathering that information will
require a significant investment of time and effort on the part of the
project proponent. However, the investment of time and resources
required by this proposed process cannot be assessed against a zero-
investment baseline. The information DOE proposes to require is
information necessary for Federal entities to review applications for
authorizations and prepare related environmental reviews. Accordingly,
most information required to be submitted in the proposed resource
reports would likely be required absent this proposal. The IIP Process
is intended to ensure that all necessary information is provided to
relevant Federal entities in a timely and coordinated fashion; it is
also intended to avoid the duplication of cost and effort that project
proponents and Federal entities face in navigating the series of
authorizations necessary to site a transmission line.
DOE believes that collating this information at an early stage of
the CITAP Program will ultimately allow both the project proponent and
the Federal entities to avoid time and resource-consuming pitfalls that
would otherwise appear during the application process. Nevertheless,
the IIP Process does not relieve the relevant Federal entities of their
legal obligation to comply with applicable environmental requirements.
In addition to the resource reports, DOE also proposes to require
submission of public participation and engagement plans for communities
that would be affected as described in the proposed qualifying
project.\9\ DOE further proposes requiring project proponents to follow
these plans and coordinate with relevant Federal entities to conduct
robust engagement with all Tribes \10\ and communities that could be
affected by the proposed qualifying project. This early engagement
would inform a project proponent's development of a proposed project
and would begin before an application is submitted to the Federal
Government. Such engagement would not relieve the Federal entities of
legal obligations to consult with Tribes and engage with communities,
but rather would provide opportunities for Tribes and communities to
express their views early in the process and to share their concerns
directly with project proponents.
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\9\ Proposed changes to the term ``qualifying project'' are
discussed in more detail in this section and the following sections.
``Qualifying project'' is defined in proposed Sec. 900.2.
\10\ Proposed Sec. 900.2 defines ``Indian Tribe'' as having the
same meaning as provided by 25 U.S.C. 5304(e). The preamble
discussion uses the terms ``tribe'' and ``Indian tribe''
interchangeably.
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As a key example, the contents of Resource Report 4 in Sec. 900.6
are intended to facilitate initiation of section 106 of the NHPA. As
proposed, the rule is intended to allow project proponents to obtain as
much information as possible about cultural and historic resources
located within the affected environment, including preliminary detailed
information about resources that may be implicated in the section 106
process, such as cultural and historic resources that may be listed on
the National Register of Historic Places. This initial information-
gathering and recommendation stage will give Federal entities insight
into the potential range of resources and impacts implicated in the
proposed project; gathering this information from project proponents
does not bind Federal entity decisionmakers. Federal entities remain
responsible for findings and determinations required by and reserved to
them in 36 CFR part 800.
The initial information-gathering phase precedes the formal
consultation process under section 106. As proposed, DOE would
authorize project proponents, as applicants to the CITAP Program, to
begin section 106 consultation during the IIP Process, but only at such
time as a project is sufficiently well developed to allow formal
consultation to begin. DOE proposes that, within 45 days of the IIP
Process review meeting described in proposed Sec. 900.8, DOE would
determine whether the project proponent has developed the scope of its
proposed project and alternatives adequately for DOE to determine that
there exists an ``undertaking'' for purposes of section 106 of the
NHPA. If DOE so determines, then DOE would authorize project proponents
to initiate consultation with State Historical Preservation Officers
(SHPOs), Tribal Historical Preservation Officers (THPOs), and others
consistent with 36 CFR 800.2(e)(4). For all qualifying projects, DOE
and the relevant Federal entity or entities shall serve as co-lead
agencies for consultation for section 106 of the NHPA per 36 CFR
800.2(a)(2). This would maximize coordination between NEPA and section
106 processes per 36 CFR 800.8, for example, by enabling DOE to seek
public input on the section 106 process during the opportunities for
public comment provided by NEPA. Agencies often use the public input
process of NEPA to seek public input on section 106. DOE would remain
responsible for consulting on a government-to-government basis with
Tribes (and government-to-sovereign consultation in the context of
Native Hawaiian relations), including pursuant to section 106. DOE
would also remain legally responsible for all findings and
determinations charged to the agency under section 106.
Fourth, DOE proposes to establish intermediate milestones and
ultimate deadlines for Federal authorizations and related environmental
reviews through the introduction of standard and project-specific
schedules. This proposal is intended to implement Congress's express
directive to ``establish prompt and binding intermediate milestones and
ultimate deadlines for the review of, and Federal authorization
decisions relating to'' the projects. 16 U.S.C. 824p(h)(4)(A). Congress
also contemplated a specific timeline in section 216(h)(4)(B), which
directs the Secretary of Energy to ensure that, ``once an application
[for a Federal authorization] has been submitted with such data as the
Secretary considers necessary,'' the decision on that application shall
be completed within 1 year or as soon as practicable.
In the 2023 MOU, the agencies determined that DOE would prepare a
``standard schedule,'' upon which each project's project-specific
schedule
[[Page 55830]]
would be based. The standard schedule is intended as a template showing
the steps and expected timeline of a model transmission project from
the beginning of the IIP Process through the end of the Federal
authorizations process. The MOU signatory agencies agreed that the
standard schedule should allow for ``a final decision on all Federal
authorizations within two years of the publication of a notice of
intent to prepare an EIS or as soon as practicable thereafter.'' (2023
MOU at section V(b)(i)) The agencies also agreed to a process for
modifying a project-specific schedule if deadlines are not met. (2023
MOU at section V(b)(v))
Consistent with the 2023 MOU and section 216(h)(4)(A), DOE proposes
to establish project-specific schedules for each project participating
in the IIP Process. The project-specific schedule will establish the
binding deadlines by which Federal authorizations and related
environmental reviews for a particular project must be completed. (See
MOU at sections V(b) and (c)) The project-specific schedule will be
developed during the IIP Process through consultation with the project
proponent and other Federal agencies and finalized at the conclusion of
that process.
Fifth, DOE proposes to simplify the development of an
administrative record by incorporating the IIP Process administrative
file into a single docket that contains all the information assembled
and utilized by the relevant Federal entities as the basis for Federal
authorizations and related reviews. DOE and any NEPA co-lead agency
will then maintain that docket. Access to, and restrictions of access
to, the docket will be worked out at the time of project-specific
implementation.
Sixth, DOE proposes to amend its regulations to provide that DOE
will serve as the lead NEPA agency and that, in collaboration with any
NEPA co-lead agency determined pursuant to procedures established by
these regulations and the 2023 MOU and in coordination with the
relevant Federal entities, DOE will prepare a single EIS to serve as
the NEPA document for all required Federal authorizations. DOE
recognizes that this proposal reflects a departure from the 2016 Rule.
This proposed change is intended to establish a transparent and
consistent NEPA process for the project proponent. Under current
regulations, the lead agency is determined through consultation with
relevant Federal entities and may not be known until the IIP Process
close-out meeting. The proposed revisions would eliminate the
uncertainty of that process, instead ensuring that DOE will serve as
the lead agency for every project alongside a co-lead, as appropriate.
This change would provide consistency in the NEPA process for all
projects under the CITAP Program. Moreover, as additional projects
utilize the CITAP Program, DOE anticipates that it will be able to
improve upon its NEPA processes, ultimately leading to greater
efficiencies for both project proponents and Federal agencies.
Finally, DOE proposes to limit the scope of the CITAP Program to
high voltage transmission projects that are expected to require
preparation of an EIS. Accordingly, DOE proposes to amend its
regulations to define ``qualifying projects'' as those with electric
transmission lines of (generally though not necessarily) 230 kV and
above. Further, DOE is proposing to revise its regulations for the
application process in Sec. 900.3 by which a project proponent may
seek DOE assistance under these regulations for projects that do not
meet the qualifying projects definition. DOE also proposes to clarify
that, while ``qualifying project'' definition does not apply to marine
lines, under the processes for accepting ``other projects'' summarized
at Sec. 900.3, these and other lines that are expected to require an
EIS, may, with the agreement of the relevant Federal entities,
participate in the CITAP Program.
III. Section-by-Section Analysis
This proposed rule would revise 10 CFR part 900 in several
respects. The following discussion explains the revisions using the
section numbers from the proposed rule.
A. Section 900.1 Purpose and Scope
DOE proposes to revise Sec. 900.1 to update the purpose of part
900, reference the establishment of the CITAP Program, and improve
readability. These changes reflect DOE's understanding that Congress
intended DOE to make the process to obtain multiple Federal
authorizations more efficient and reduce administrative delays, which
requires clear authority, process, and timelines. The proposed changes
in this section reflect DOE's intent to carry out the full scope of the
authority that Congress provided.
DOE is proposing to divide Sec. 900.1 into proposed paragraphs (b)
through (d). Portions of the text dealing with the IIP Process would be
updated to clarify that the process will require submission of
materials necessary for Federal authorizations and that the IIP Process
should be initiated prior to the submission of any application for a
Federal authorization. The proposed changes also clarify that the IIP
Process is integrated into the CITAP Program.
Proposed paragraph (a) would be added to establish the overarching
CITAP Program and provide a roadmap to authorities and processes
proposed to be added to part 900. The proposed paragraph would state
that DOE will act as a lead agency for preparing an EIS for any
qualifying project. Proposed paragraph (a), as well as proposed
paragraph (d), would also point out DOE's role in establishing and
monitoring adherence to intermediate milestones and final deadlines, as
required by section 216(h). Paragraph (d) also elaborates on the role
DOE will play in determining when a project proponent may initiate
section 106 consultation for an undertaking consistent with 36 CFR
800.2(c)(4).
DOE proposes to add paragraph (e) to clarify the intended
relationship between the early coordination envisioned by the IIP
Process and the duties prescribed by section 106 of the NHPA and the
implementing regulations at 36 CFR part 800. In particular, DOE intends
to clarify that nothing in the IIP Process is intended to abrogate the
obligations of Federal agencies under 36 CFR part 800. Additionally,
DOE intends to authorize a project proponent as an applicant to the
CITAP Program to initiate section 106 consultation during that
proponent's involvement in the IIP Process.
DOE proposes to redesignate paragraphs (a) and (e) of current Sec.
900.2 as new paragraphs (f) and (g) of this section because the
paragraphs contain general propositions regarding part 900 and are
better suited to the general ``Purpose and scope'' section.
Proposed paragraph (h) would be added to afford the Director of
DOE's Grid Deployment Office, or that person's delegate, flexibility
necessary to ensure that part 900 does not result in unnecessary,
duplicative, or impracticable requirements. DOE proposes to authorize
the Director to waive any such requirements. Further, this paragraph
specifically contemplates a scenario in which a Federal entity is the
principal project developer. Under such circumstances, DOE proposes
that the Director will consider modifications to the requirements under
this part as may be necessary under the circumstances.
B. Section 900.2 Definitions
DOE proposes to redesignate Sec. 900.3 as Sec. 900.2 for the
purpose of providing the definitions of terms before those
[[Page 55831]]
terms occur in the body of the regulation. DOE proposes to:
Add a definition for ``authorization'' to provide clarity
in several places where that term occurs. Amend the definition for
``Federal authorization'' to account for the new definition of
``authorization.''
Add a definition for ``communities of interest'' to ensure
broad coverage of potentially impacted populations during the public
engagement process and establishment of the public engagement plan.
Add a definition for ``participating agencies'' to serve
as shorthand for the group of agencies that will serve various roles
under the proposed amendments to the coordination of Federal
authorizations.
Add a definition of ``NEPA co-lead agency'' to identify
where information about the designation of a NEPA co-lead agency occurs
in the rule.
Remove the term ``OE-1,'' meaning the Assistant Secretary
for DOE's Office of Electricity Delivery and Energy Reliability, and
replace it with the definition for ``Director,'' meaning the Director
of DOE's Grid Deployment Office or that person's delegate. Under
section 1.14(D) of Delegation Order No. S1-DEL-S3-2023 and section
1.9(D) of Redelegation Order No. S3-DEL-GD1-2023 the Secretary of
Energy delegated authority to exercise authority under section 216(h)
to the Grid Deployment Office. That authority had previously been
delegated to DOE's Office of Electricity Delivery and Energy
Reliability. The proposed text would make the same substitution
throughout part 900 to reflect that delegation change.
Revise the reference to the definition of ``Indian Tribe''
in the United States Code to the correct reference following the 2016
editorial reclassification. This proposed change does not amend the
definition.
Add the definitions for ``relevant Federal entity'' and
``relevant non-Federal entity'' using the substance of the definitions
from ``Federal entity'' and ``non-Federal entity,'' respectively. These
proposed changes are intended to show that the terms only mean Federal
or non-Federal entities with some relation to a particular qualifying
project. These changes would be updated throughout part 900.
Revise the definitions for ``regional mitigation
approach'' and ``regional mitigation strategies or plans'' as
``landscape mitigation approach'' and ``landscape mitigation strategies
or plans'', respectively, to reflect terminology in current use. The
definition of ``landscape mitigation approach'' is further revised to
improve readability and promote consistency in terminology with other
agencies.
Revise the definition for ``MOU signatory agency'' to
reflect the title of the 2023 MOU and the agencies to which it applies.
Revise the definition for ``qualifying project'' in a
number of ways. First, the proposed definition would remove the
qualifier ``non-marine'' before high voltage transmission line and
electric transmission line to match potential scope of the Program with
that agreed to in the MOU. Second, the proposed definition would limit
the term to projects that are expected to require preparation of an EIS
because the Federal coordination will be most impactful for such
projects due to their complexity. Third, the proposed revision would
provide a mechanism under proposed Sec. 900.3 by which a project that
does not meet the definition of a qualifying project may still
participate in the Program. This change is discussed in more detail in
the following section. Fourth, in accordance with the 2023 MOU, DOE
proposes to amend the definition to state that the term does not
include any transmission facility authorized under section 8(p) of the
Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)). The exception to
that restriction included in the 2023 MOU is provided for in the
proposed changes to Sec. 900.3 and discussed further in that following
section. Also, in accordance with the 2023 MOU, the term excludes a
transmission facility that would require a construction or modification
permit from the Federal Energy Regulatory Commission (FERC) pursuant to
section 216(b) of the FPA. Fifth and finally, the proposed definition
would exclude projects located wholly within the Electric Reliability
Council of Texas interconnection, as required by section 216(k) (16
U.S.C. 824p(k)). This exclusion is also located in Sec. 900.2(c) of
the current rule, but DOE proposes to replicate it in this proposed
definition for clarity.
Remove the definitions of ``DOE'', ``NEPA'', and ``FPA''
because those terms are acronyms best addressed in the regulatory text
rather than as definitions.
Remove the definitions for ``early identification of
project issues,'' ``IIP resources report'', ``IIP process
administrative file'', ``lead 216(h) agency'', ``MOU principals'', and
``other projects'' because those terms no longer occur in the proposed
part 900.
Remove the definition for ``NEPA Lead Agency'' because
that term is self-explanatory in the context in which it occurs.
C. Section 900.3 Applicability to Other Projects
Section 900.2 of the current rule, titled ``Applicability'',
provides an application process by which a project proponent may seek
DOE assistance under part 900 for an ``other project.'' Current Sec.
900.3 defines an ``other project'' to be a transmission facility that
does not meet the definition of ``qualifying project''. The proposed
rule would redesignate Sec. 900.2 as Sec. 900.3 and retain a
mechanism by which projects that do not otherwise qualify as
``qualifying projects'' may be treated as such but would modify the
text as follows.
Current Sec. 900.2(b) would be reworded and divided into proposed
Sec. 900.3(a) through (c) to more clearly communicate the process by
which a project proponent may request that a facility be approved as a
qualifying project. In particular, the proposed rule would remove the
definition of the term ``other project'' and instead include the
substance of that term in paragraph (a) of the revised section.
DOE proposes to redesignate paragraphs (d) and (e) of current Sec.
900.2 to proposed Sec. 900.1 as new paragraphs (f) and (g),
respectively, because those paragraphs contain general propositions
regarding part 900 and are better suited to the general ``Purpose and
scope'' section. Current paragraphs (g) and (h) would be relocated to
proposed Sec. 900.4 as paragraphs (e) and (f), respectively, because
proposed Sec. 900.4 provides a general background to the IIP Process,
and the substance of those paragraphs is more relevant to the IIP
Process than the rest of part 900.
The first sentence of current Sec. 900.2(e) is proposed to be
removed as unnecessary because part 900 does not purport to affect
other Federal law requirements except in specific, articulated
instances. Current paragraph (f), which describes the IIP process as a
complementary process that does not supplant existing pre-application
processes, is proposed to be removed because the proposed rule
establishes the IIP Process as the mandatory precondition for
coordination under section 216(h).
Whereas the current version of paragraph (d) provides that the
section does not apply to a transmission facility that will require a
construction or modification permit from FERC, the revised version
would allow such projects to take advantage of part 900, provided that
the FERC chair submits
[[Page 55832]]
the request to be included in the CITAP Program.
The proposed rule would add new paragraphs (e) and (f)(1) that
allow a project proposed to be authorized under section 8(p) of the
Outer Continental Shelf Lands Act to receive coordination assistance
under part 900, provided that the project is not proposed to be
authorized in connection to a generation project and that all 2023 MOU
signatories agree to the project's inclusion in the CITAP Program.
These additions reflect the terms of the 2023 MOU.
Finally, current paragraph (c) is proposed to be moved to paragraph
(f)(2) to improve the readability of the section.
D. Section 900.4 Purpose of IIP Process
Section 900.4 of the current rule states the purpose and structure
of the IIP Process. The proposed rule would divide this section into
proposed Sec. Sec. 900.4, 900.5, 900.8, and 900.9 to improve
readability. Section 900.4(a) of the current rule would remain in Sec.
900.4 but would be further divided into proposed paragraphs (a), (b),
and (c) to improve readability.
Additionally, while the current paragraph (a) describes the IIP
Process as an optional process, the proposed Sec. 900.4(b) would
establish the IIP Process as a prerequisite for coordination,
consistent with the statutory language and the proposed revisions to
the purpose of part 900 in Sec. 900.1.
The proposed rule would add a new paragraph (d) to clarify that the
IIP Process does not preclude additional communications between the
project proponent and relevant Federal entities outside of the meetings
envisioned by the IIP Process. The paragraph further emphasizes that
DOE intends for the IIP Process to be an iterative process and that
each milestone in the process is designed to improve upon the materials
that Federal entities have available for authorization and
environmental review decisions.
As described previously, the proposed rule would redesignate Sec.
900.2(g) and (h) as proposed Sec. 900.4(e) and (f), respectively,
because Sec. 900.4 provides a general background to the IIP Process,
and the substance of those paragraphs is more relevant to the IIP
Process than the rest of part 900.
Paragraph (g) of the proposed Sec. 900.4 would give authority to
the Director to request additional information from a project proponent
during the IIP Process to ensure that DOE can collect the information
needed to adequately complete the IIP Process.
Finally, the proposed rule would add new paragraphs (h) and (i),
which provide processes by which a person may submit confidential
information during the IIP Process or to request designation of
information containing Critical Electric Infrastructure Information
(CEII). These provisions would establish the mechanisms through which
the IIP Process complies with 10 CFR 1004.11 and 1004.13.
E. Section 900.5 Initiation of IIP Process
Proposed Sec. 900.5 is composed of current Sec. 900.4(b), (c),
(e), (g), (h), (i), and (j). DOE proposes to revise these provisions to
enumerate the documents and information required to initiate the IIP
Process, expedite that process, ensure that community impacts from the
project are identified early, and improve the overall readability and
clarity of the provisions.
Currently, an initiation request to begin the IIP Process must
include a summary of the qualifying project; a summary of affected
environmental resources and impacts, including associated maps,
geospatial information, and studies; and a summary of early
identification of project issues. The proposed rule would make several
changes to the contents of the request. First, DOE proposes to update
the contents required in the summary of the qualifying project in
proposed paragraph (b) to include project proponent details;
identification of any environmental and engineering firms and
subcontractors under contract to develop the qualifying project; and a
list of anticipated relevant Federal and non-Federal entities to ensure
sufficient information is provided for DOE to review and to include all
necessary agencies in the process. DOE also proposes to require
additional maps as part of the initiation request, as detailed in
proposed paragraph (c). DOE believes the additional information in
proposed paragraphs (b) and (c) are necessary to properly identify the
relevant agencies for efficient coordination.
DOE also proposes to require submission of a project participation
plan as part of the initiation request. This plan is proposed in place
of the summary of early identification of project issues currently
required under the rule. The project participation plan, as detailed in
proposed paragraph (d), would include the project proponent's history
of engagement and a public engagement plan for the project proponent's
future engagement with communities of interest and with Indian Tribes
that would be affected by a proposed qualifying project. The plan would
include specific information on the proponent's engagement with
communities of interest and with Indian Tribes that would be affected
by a proposed qualifying project. An updated public engagement plan
would be required at the end of the IIP Process to reflect any
activities during that process. The addition of a public engagement
plan that includes communities of interest and Indian Tribes that could
be affected by a proposed qualifying project, would ensure that the
project proponent follows best practices around outreach. Moreover, by
including this plan in the IIP Process, the proposed regulation would
provide relevant Federal entities an opportunity to provide input into
the project proponent's engagement efforts, and to ensure that the
project proponent engages with all communities of interest and Indian
Tribes that could be affected by the proposed qualifying project. The
engagement would complement Tribal consultation and public engagement
undertaken by the relevant Federal entities and would not substitute
for Federal agencies engaging in Nation-to-Nation consultation with
Indian Tribes and public engagement with stakeholders and communities
of interest.
In new paragraph (e), DOE proposes to require submission of a
statement regarding the project's status under Title 41 of the Fixing
America's Surface Transportation Act (FAST-41) (42 U.S.C. 4370m et
seq.) as part of the initiation request. This statement is intended to
facilitate coordination between the IIP Process and the FAST-41
Process. Project proponents would be required to indicate whether their
proposed project currently is a FAST-41 ``covered project''.
DOE proposes to add paragraph (f) to outline the timeline for DOE's
review of the initiation request and provide relevant Federal entities
and relevant non-Federal entities with a copy of the initiation request
and notify each entity as to whether it should participate in the IIP
Process and DOE's rationale for that determination. Under proposed
paragraph (g), DOE would notify the project proponent and all relevant
Federal entities and relevant non-Federal entities whether the
initiation request meets the requirements of this section.
The proposed rule would remove the requirement to submit an
affected environmental resources and impacts summary as part of the
initiation request. As discussed in more detail in the next section,
that summary would be replaced by thirteen resource reports
[[Page 55833]]
submitted after the IIP Process initial meeting.
This section also proposes changes to the timeline for convening
the IIP Process initial meeting. Under the current rule, DOE is
required to convene the initial meeting within 45 days of providing
notice to the project proponent and the relevant Federal and non-
Federal entities that it has received an IIP Process initiation
request. The proposed rule would require DOE to convene the IIP Process
initial meeting within 30 days of providing notice under proposed
paragraph (g) that the initiation request meets the requirements of the
section.
Likewise, the contents of the initial meeting would be updated.
Under proposed Sec. 900.5(h)(1), DOE and the relevant Federal entities
would be required to discuss the IIP Process and requirements with the
project proponent, and the different Federal authorization processes.
This meeting would also include discussion of arrangements for the
project proponent to contribute funds to DOE to cover costs in the IIP
Process (in accordance with 42 U.S.C. 7278), establishment of cost
recovery agreements or procedures in accordance with regulations of
relevant Federal entities, where applicable, or the use of third-party
contractors under DOE's supervision, where applicable. DOE believes an
early discussion of the process and requirements will ensure efficient
participation of the parties and early identification of potential
issues.
Proposed Sec. 900.5(h)(2) would require DOE to identify certain
applications that need to be submitted to relevant Federal entities
during the IIP Process (for example, Standard Form 299, which an
applicant would file to seek authorization for transmission lines
crossing Federal property). The timing of the expected Federal
applications, including which applications may be required during the
IIP Process and which should be submitted following the conclusion of
the IIP Process, will be covered in the initial meeting.
Additionally, the current rule requires DOE to produce a final
initial meeting summary within 30 days of receiving corrections to the
draft summary. The proposed rule would reduce this timeframe to 15
days. Both changes are intended to expedite the IIP Process.
The proposed section in paragraph (l) requires DOE to add the final
initial meeting summary to the consolidated administrative docket. This
requirement was previously located in Sec. 900.6 and is currently
required under the proposed revision of that section, but is duplicated
here for clarity.
Finally, portions of paragraph (j)(3)(v) are proposed to be removed
as unnecessary because the contents are addressed elsewhere.
F. Section 900.6 Project Proponent Resource Reports
The proposed rule would require project proponents to develop, in
collaboration with relevant Federal entities, thirteen resource reports
that will serve as inputs, as appropriate, into the relevant Federal
entities' own environmental analysis and authorization processes. This
pre-application material would provide for earlier collection of
critical information to inform the future application process relating
to the proposed transmission line and facilities, including preliminary
information to support DOE's and the relevant Federal entities'
compliance with section 106 of the NHPA, the ESA, and NEPA. The
thirteen resource reports are: General project description; Water use
and quality; Fish, wildlife, and vegetation; Cultural resources;
Socioeconomics; Geological resources; Soil resources; Land use,
recreation, and aesthetics; Communities of interest; Air and noise
quality; Alternatives; Reliability and safety; and Tribal interests.
DOE proposes to require project proponents develop these resource
reports as part of the pre-application process instead of the affected
environmental resources and impacts summary document required from
project proponents under the existing rule at Sec. 900.4(d). The
proposed resource reports identify information needed to complete NEPA
and other review and authorization requirements. However, the topics
identified and the proposed reports do not limit the information
relevant Federal entities may need, require from project proponents, or
develop independently, as necessary to satisfy each relevant Federal
entity's applicable statutory and regulatory obligations. Each resource
report will comprehensively discuss the baseline conditions and
anticipated impacts to resources relevant to DOE's required
environmental review, namely under NEPA, ESA, and section 106 of the
NHPA. NEPA requires Federal agencies to analyze and assess potential
environmental effects of the proposed Federal agency action, and these
effects can vary in significance and complexity. Accordingly, by giving
each resource proper consideration in individualized reports, DOE
anticipates it will be able to meet its requirements under the various
environmental laws referenced previously. In addition, proper
assessment of the resources potentially affected by the proposed action
can also help DOE identify resource conflicts, missing information, and
needs from other agencies, and inform the project-specific schedule.
These conflicts and needs can then be discussed and addressed during
the review meeting and throughout the IIP Process.
These resource reports would be developed by project proponents
during the IIP Process with input and feedback from the Federal and
non-Federal entities involved in authorization decisions. As proposed,
this procedure better matches the IIP Process with the project
development and Federal review timelines. Under the proposed changes, a
project proponent may initiate the IIP Process without detailed
environmental resources information, but the detailed information
required by this proposed section must be developed to complete the IIP
Process. The more detailed pre-application information, presented in
the resource reports, would allow project proponents and the relevant
Federal entities to coordinate and identify issues prior to submission
of applications for authorizations, inform project design, and expedite
relevant Federal entities' environmental reviews by providing
environmental information that relevant Federal entities can use after
submission of applications to inform their own reviews and by ensuring
those applications are complete.
DOE is particularly interested in seeking comment on these items in
the proposed resource reports: (1) whether 0.25 mile distance of the
proposed transmission project facilities is an adequate distance to:
affected landowners, the National Wild and Scenic Rivers System (16
U.S.C. 1271), the National Wildlife Refuge system (16 U.S.C. 668dd-ee),
the National Wilderness Preservation System (16 U.S.C. 1131), the
National Trails System (16 U.S.C. 1241), the National Park System (54
U.S.C. 100101), National Historic Landmarks (NHLs), National Natural
Landmarks (NNLs), Land and Water Conservation Fund (LWCF) acquired
Federal lands, LWCF State Assistance Program sites and the Federal
Lands to Parks (FLP) program lands, or a wilderness area designated
under the Wilderness Act (16 U.S.C. 1132); or the National Marine
Sanctuary System, including national marine sanctuaries (16 U.S.C. 1431
et seq.) and Marine National Monuments as designated under authority by
the Antiquities Act (54 U.S.C. 320301-320303) or by Congress; (2)
whether any other distances listed in the regulations are appropriate;
and (3) whether the page limits identified in the regulations
[[Page 55834]]
is appropriate; (4) whether the duplicative aspects of the resource
reports should be rectified; and (5) whether further revisions are
needed to proposed Sec. 900.6(m)(8).
As discussed in the following sections, the proposed rule would
provide for additional opportunity for project proponents, DOE,
relevant Federal entities, and relevant non-Federal entities to
communicate regarding the potential impacts of a proposed project.
G. Section 900.7 Standard and Project-Specific Schedules
Section 216(h) directs DOE to ``establish prompt and binding
intermediate milestones and ultimate deadlines for the review of, and
Federal authorization decisions relating to, the proposed facility.''
16 U.S.C. 824p(h)(4)(A). DOE proposes to amend how it will carry out
that obligation. Specifically, in paragraph (a), the proposed rule
describes the ``standard schedule,'' which DOE will publish as guidance
and update from time to time. The standard schedule is not project
specific. Rather, DOE proposes that it will describe, as a general
matter, the steps necessary to review applications for Federal
authorizations, and the related environmental reviews necessary to site
qualifying projects. DOE proposes that this schedule will contemplate
that authorizations and related environmental reviews be completed
within two years.
Paragraph (b) describes the project-specific schedule. As discussed
further, DOE proposes to develop this schedule with the NEPA co-lead
agency and the relevant Federal entities on a per-project basis during
the IIP Process. This schedule would provide the ``binding intermediate
milestones and ultimate deadlines'' required by section 216(h). This
proposed provision is intended to specify the considerations that DOE
will incorporate into its determination of the appropriate project-
specific schedule including co-lead and other agency-specific
regulations and schedules. Section 216(h)(4)(B) requires DOE to set a
project-specific schedule under which all Federal authorizations may be
completed within one year of the filing of a complete application
unless other requirements of Federal law require a longer schedule. DOE
intends to determine the project-specific schedule based on the
considerations specified in proposed paragraph (b).
H. Section 900.8 IIP Process Review Meeting
The proposed rule would amend the IIP Process to ensure that DOE
and the Federal and non-Federal entities involved have meaningful
opportunities to identify issues of concern prior to the project
proponent's submission of applications for authorizations. In addition
to the initial and close-out meetings included in the current text of
part 900, the proposed rule would establish an IIP Process review
meeting, to be held at the request of the project proponent following
initial submission of the requisite thirteen resource reports. In
addition, DOE proposes to require that a project proponent requesting
the review meeting also update DOE on the status of the project public
engagement, and provide updated environmental information.
As proposed, the IIP Process review meeting would ensure that DOE
and the relevant Federal and non-Federal entities involved have
meaningful opportunities to identify issues of concern prior to the
close of the IIP Process and submission of applications for Federal
authorizations. To this end, DOE proposes in paragraph (e) that at the
review meeting the relevant Federal entities should discuss any
remaining issues of concern, information gaps, data needs, potential
issues or conflicts, statutory and regulatory standards, and
expectations for complete applications for Federal authorizations.
Additionally, DOE proposes that the meeting participants would provide
updates on the siting process, including stakeholder outreach and
input. To facilitate these discussions, DOE proposes in paragraph (a)
that a project proponent should submit a request for the review meeting
containing helpful documents and information such as a summary table of
changes made to the project since the initial meeting, maps of proposed
routes within study corridors, a conceptual plan for implementation and
monitoring of mitigation measures, and an updated public engagement
plan.
Additionally, the proposed IIP Process review meeting would provide
an opportunity for DOE and the relevant Federal and non-Federal
entities to review the detailed resource reports prepared pursuant to
Sec. 900.6. Therefore, DOE proposes in paragraph (a) that the review
meeting would only be held after submission of the reports. As proposed
at Sec. 900.8(e)(8), during the IIP Process review meeting DOE and the
relevant Federal and non-Federal entities would identify any updates to
the information included in those reports that the project proponent
must make before the conclusion of the IIP Process. Finally, proposed
Sec. 900.8(i) would require the project proponent to revise resource
reports based on feedback received during the meeting. DOE believes
that identifying and addressing issues in the reports during the IIP
Process instead of at the end of that process would expedite DOE's
preparation of an EIS and increase the likelihood of readiness of the
project proponent's application(s) for Federal authorization(s).
Furthermore, the IIP Process review meeting would integrate DOE's
statutory schedule-setting function discussed in the previous section
into the IIP Process. For this purpose, DOE proposes that the review
meeting request under proposed paragraph (a) should include a schedule
for completing upcoming field resource surveys, if known, and estimated
dates that the project proponent will file requests for Federal and
non-Federal authorizations and consultations. These resources will
assist DOE in preparing the proposed project-specific schedule, which
DOE would be required to present at the review meeting under proposed
Sec. 900.8(e)(9). At the meeting, the relevant Federal entities would
discuss the process for, and estimated time to complete, required
Federal authorizations. These discussions along with other matters
discussed at the review meeting would, in turn, allow DOE to continue
refining the project-specific schedule.
DOE proposes in paragraph (b) that within 15 days of receiving the
review meeting request, DOE must provide relevant Federal entities and
relevant non-Federal entities with materials included in the request
and resource reports submitted under proposed Sec. 900.6. In paragraph
(c), DOE proposes a 60-day period to review the request for sufficiency
and provide notice to the proponent and relevant Federal and non-
Federal agencies. Furthermore, DOE proposes in paragraph (d) to convene
the review meeting within 30 days of providing notice that the request
has been accepted. These timelines will ensure that the IIP Process is
pursued expeditiously while affording the relevant Federal entities
sufficient time to review the relevant materials. The requirement to
share the review meeting request and resources reports in paragraph (b)
would ensure that all entities participating in the meeting have access
to the materials being discussed at the meeting.
DOE proposes in paragraphs (e), (f), and (g) that the IIP Process
review meeting would conclude with a draft and, subsequently, a final
review meeting summary, to be prepared by DOE. This summary would be
included in the consolidated administrative docket described by Sec.
900.10. It would serve as a docket of the issues identified by the
parties to the review meeting, and to ensure that the project
[[Page 55835]]
proponent, the relevant Federal and non-Federal entities, and DOE, have
a shared understanding of the work remaining to be done during the IIP
Process.
DOE proposes in paragraph (h) to include a mechanism by which it
may determine whether the project proponent has developed the scope of
its proposed project and alternatives sufficiently for DOE to determine
that there exists an undertaking with the potential to affect historic
properties for purposes of section 106 of the NHPA. If DOE so
determines, DOE would initiate its section 106 review of the
undertaking and authorize project proponents as CITAP Program
applicants to initiate consultation with SHPOs, THPOs, and others
consistent with 36 CFR 800.2(c)(4). This provision is intended to allow
initiation of section 106 consultation during the IIP Process, prior to
submission of applications for authorizations, but with sufficient
opportunity for the project proponent, the relevant Federal entities,
and DOE, to determine the scope of the proposed project.
I. Section 900.9 IIP Process Close-Out Meeting
The proposed rule also would amend the close-out meeting provisions
of the current rule at Sec. 900.4(k) and (l). As in the current rule,
DOE proposes that the IIP Process would conclude with the close-out
meeting. The proposed rule would require submission of a close-out
meeting request to specify the modifications to the project since the
review meeting. However, while the current rule states that the request
may be submitted no less than 45 days after the initial meeting, DOE
proposes to remove that requirement because changes to the IIP Process
in the proposed rule no longer allow for a request to be submitted
within that timeframe.
DOE proposes to pare down the request by removing paragraphs
(k)(3), (5), (8), and (9). The information required under those
paragraphs would be submitted with the review meeting request under
proposed Sec. 900.8(a). Likewise, DOE proposes to remove paragraphs
(k)(4), (6), and (7) because the information required under those
paragraphs would be submitted in the resources reports under proposed
Sec. 900.6. Finally, paragraph (k)(1) is proposed to be removed
because the submission of close-out meeting request materials is
presumed to indicate that a close-out meeting is being requested.
However, DOE also proposes that new materials be included with the
request for the purpose of updating meeting participants on changes to
the project. Paragraphs (a)(2) and (3) would require a description of
all changes made to the qualifying project since the review meeting and
a final public engagement plan. In paragraph (a)(4) DOE proposes the
project proponent provide the requests for Federal authorizations for
the qualifying project. These are proposed to be included in the close-
out meeting request to ensure that the project proponent is ready to
begin the Federal authorization process.
DOE proposes to revise the timelines for requesting and convening a
close-out meeting. In current paragraphs (a)(1) through (3), DOE has 30
days to respond to a close-out meeting request and 60 days from the
date of providing a response to convene the close-out meeting. DOE
proposes in paragraph (b) that within 15 days of receiving the request,
DOE must provide relevant Federal entities and relevant non-Federal
entities with materials included in the request and any updated
resource reports submitted under Sec. 900.6. Proposed paragraph (c)
provides that DOE has 60 days to review the request for sufficiency and
notify the project proponent and all relevant Federal and non-Federal
entities of DOE's decision. Under proposed paragraph (d), DOE would
convene the close-out meeting within 30 days of notifying the project
proponent that the request has been accepted. These new timelines will
ensure that the IIP Process is pursued expeditiously. Furthermore, the
requirement to share the close-out meeting request materials in
paragraph (b) would ensure that all entities participating in the
meeting have access to the materials being discussed at the meeting.
DOE proposes that the substance of the close-out meeting will no
longer include a description of remaining issues of concern,
information gaps, data needs, and potential issues or conflicts that
could impact the time it will take relevant Federal entities to process
applications for Federal authorizations. That information is proposed
to be covered at the review meeting under Sec. 900.8(d). Likewise, DOE
proposes to eliminate paragraphs (l)(3)(ii) through (v) because that
information is now required to be discussed at the review meeting. DOE
proposes in paragraph (e) that DOE will present the final project-
specific schedule at the meeting, in keeping with DOE's statutory
schedule-setting function discussed previously. As explained
previously, the project-specific schedule will include the intermediate
milestones and final deadlines for review of the project proponent's
application and related environmental reviews.
DOE proposes to remove the portion of paragraph (l) of the current
regulation which states that ``The IIP Process Close-Out Meeting will
also result in the identification of a potential NEPA Lead Agency
pursuant to Sec. 900.6 described.'' DOE proposes to select the NEPA
co-lead agency earlier in the IIP Process to allow for sufficient
coordination.
DOE proposes to remove paragraph (l)(3)(vi) because the information
covered by the Final IIP Resources Report is proposed to be covered by
the thirteen resources reports. Additionally, DOE proposes to remove
paragraph (l)(3)(vii), which encourages agencies to use the Final IIP
Resources Report to inform the NEPA Process. Instead, DOE proposes at
Sec. 900.12(f) to require all relevant Federal entities to use the EIS
as the basis for Federal authorization decisions. That requirement is
discussed in more detail below.
DOE proposes to remove paragraph (l)(3)(viii), which requires
relevant Federal entities to identify a preliminary schedule for
authorizations for the proposed qualifying project, because DOE now
proposes to set a project-specific schedule for all relevant Federal
entities in consultation with such entities.
DOE proposes in paragraphs (f) through (h) that the IIP Process
close-out meeting would conclude with a draft and, subsequently a final
close-out meeting summary, to be prepared by DOE. This summary would be
included in the administrative docket. It would serve as a docket of
the issues identified by the parties to the close-out meeting, and
ensure that the project proponent, the relevant Federal and non-Federal
entities, and DOE, have a shared understanding of the conclusion of the
IIP Process.
In paragraph (h)(4), in accordance with the 2023 MOU, DOE proposes
to notify the Federal Permitting Improvement Steering Council (FPISC)
Executive Director that the project should be included on the FPISC
Dashboard as a transparency project if the project is not identified as
a covered project pursuant to Sec. 900.5(e).
Finally, in paragraph (i), DOE proposes that DOE and the NEPA co-
lead agency shall issue a notice of intent to publish an EIS in
accordance with the final project-specific schedule.
J. Section 900.10 Consolidated Administrative Docket
Current Sec. 900.6 requires DOE to maintain an IIP Process
Administrative File with all relevant documents and communications
between the project
[[Page 55836]]
proponent and the agencies and encourages agencies to work with DOE to
create a single record. To better integrate and coordinate Federal
authorizations, the new section proposes to dispense with the IIP
Process Administrative File and combine all documents that were
previously included in that file along with all information assembled
by relevant Federal entities for authorizations and reviews after
completion of the IIP Process into a single, consolidated
administrative docket.
To this end, the proposed Sec. 900.10 expands current paragraph
(b) as a new paragraph (a) to articulate more clearly the information
that should be included in the docket, including requests made during
the IIP Process, IIP Process meeting summaries, resources reports, and
the final project-specific schedule. The sentence in current paragraph
(b) regarding the Freedom of Information Act is proposed to be removed
because that law applies to requests for information from the public on
its own terms.
Current paragraph (b) also requires DOE to share the IIP Process
Administrative File with the co-lead NEPA agency. However, proposed
paragraph (c) would require DOE to make the consolidated administrative
docket available to both the NEPA co-lead agency and any Federal or
non-Federal entity that will issue an authorization for the project.
This change is proposed to ensure that other entities are able to use
the docket for their own authorizations. Consequently, the proposed
rule also proposes to remove current paragraph (d), which says that
Federal entities are strongly encouraged to maintain information
developed during the IIP Process.
The proposed rule would also add a new paragraph (d) providing
notice that, as necessary and appropriate, DOE may require a project
proponent to contract with a qualified docket-management consultant to
assist DOE and the NEPA co-lead agency in compiling and maintaining the
administrative docket. Such a contractor may assist DOE and the
relevant Federal entities in maintaining a comprehensive and readily
accessible docket. DOE is also proposing that any such contractor shall
operate at the direction of DOE, and that DOE shall retain
responsibility and authority over the content of the docket to ensure
the integrity and completeness of the docket.
Finally, the proposed rule relocates paragraph (a) of the current
rule to paragraph (b) for organizational purposes.
K. Section 900.11 NEPA Lead Agency and Selection of NEPA Co-Lead Agency
Under the proposed rule, DOE would serve in the NEPA lead agency
role contemplated in section 216(h) except where a co-lead is
designated.
Under the current Sec. 900.5, DOE coordinates the selection of a
NEPA lead agency in compliance with NEPA, CEQ implementing regulations
at 40 CFR part 1500, and each agency's respective NEPA implementing
regulations and procedures. Paragraphs (a) through (d) of the current
section govern the selection of a NEPA lead agency for projects that
cross lands administered by both the Department of Interior (DOI) and
the Department of Agriculture (USDA).
The proposed rule proposes to redesignate current Sec. 900.5 to
new Sec. 900.11 and proposes to update this section to reflect that
DOE, in accordance with section 216(h)(5)(A) and the 2023 MOU, will
serve as lead agency for purposes of NEPA along with any NEPA co-lead
agency as designated pursuant to the MOU and Sec. 900.11 consistent
with its obligation as lead agency to coordinate with relevant Federal
entities.
In the 2023 MOU, the MOU signatory agencies agreed to a process by
which a NEPA co-lead agency could be designated. Under that process,
DOE and the agency with the most significant interest in the management
of Federal lands or waters that would be traversed or affected by the
qualifying project would serve as lead agencies jointly responsible for
preparing an EIS under NEPA. Proposed Sec. 900.11(b) reflects that
agreed-upon process.
The proposed amendments also provide that, for projects that would
traverse both USDA and DOI lands, DOE will request that USDA and DOI
determine the appropriate NEPA co-lead agency.
L. Section 900.12 Environmental Review
Consistent with DOE's proposed role as lead agency, a new Sec.
900.12 proposes to define DOE's responsibilities as lead agency for
environmental reviews and the NEPA process, including by preparing a
single EIS designed to serve the needs of all relevant Federal
entities. In paragraph (a) of this section, the proposed rule would
clarify that DOE will begin preparing an EIS following the conclusion
of the IIP Process and after receipt of a relevant application. It also
notes that DOE will do so in conjunction with any NEPA co-lead agency
selected under Sec. 900.11.
The other provisions of this proposed section specify details of
DOE's--and any NEPA co-lead agency's--role as lead NEPA agency,
including to arrange for contractors, publish completed documents, and
identify the full scope of alternatives for analysis. As proposed, the
applicable permitting agencies would maintain responsibility for
identifying information, analysis, and alternatives necessary for their
respective authorizations.
Consistent with section 216(h)(5)(A), which requires that DOE's EIS
serve as ``the basis for all decisions on the project under Federal
law,'' proposed paragraph (f) would establish that the relevant Federal
agencies will use the EIS as the basis for their respective decisions.
Finally, proposed paragraph (g) would specify that DOE and the
applicable permitting agency or agencies will serve as co-lead agencies
for purposes of consultation under the ESA and compliance with the
NHPA. This provision would allow DOE to meet its obligation under
section 216(h)(2) to coordinate ``all . . . related environmental
reviews of the facility.''
M. Section 900.13 Severability
Proposed Sec. 900.13 would provide that the provisions of the
proposed rule are separate and severable from one another, and that if
any provision is stayed or determined to be invalid by a court of
competent jurisdiction, the remaining provisions shall continue in
effect. This standard severability clause is intended to clearly
express the Department's intent that should a provision be stayed or
invalidated the remaining provisions shall continue in effect. The
Department has carefully considered the requirements of the proposed
rule, both individually and in their totality, including their
potential costs and benefits to project proponents. In the event a
court were to stay or invalidate one or more provisions of this rule as
finalized, the Department would want the remaining portions of the rule
as finalized to remain in full force and legal effect.
IV. Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by
E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821
(Jan. 21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory
Review,'' 88 FR 21879 (April 11, 2023), requires agencies, to the
extent permitted by law, to (1) propose or adopt a regulation only
[[Page 55837]]
upon a reasoned determination that its benefits justify its costs
(recognizing that some benefits and costs are difficult to quantify);
(2) tailor regulations to impose the least burden on society,
consistent with obtaining regulatory objectives, taking into account,
among other things, and to the extent practicable, the costs of
cumulative regulations; (3) select, in choosing among alternative
regulatory approaches, those approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity); (4) to the
extent feasible, specify performance objectives, rather than specifying
the behavior or manner of compliance that regulated entities must
adopt; and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public. DOE
emphasizes as well that E.O. 13563 requires agencies to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible. In its guidance, the
Office of Information and Regulatory Affairs (OIRA) has emphasized that
such techniques may include identifying changing future compliance
costs that might result from technological innovation or anticipated
behavioral changes. For the reasons stated in the preamble, this
proposed regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 requires agencies to submit
``significant regulatory actions'' to OIRA for review. OIRA has
determined that this proposed regulatory action constitutes a
``significant regulatory action'' within the scope of E.O. 12866.
Accordingly, this action is subject to review under E.O. 12866 by OIRA
of the Office of Management and Budget (OMB).
Section 6(a) of E.O. 12866 requires an agency issuing a
``significant regulatory action'' to provide an assessment of the
potential costs and benefits of the regulatory action. To that end, DOE
has further assessed the qualitative and quantitative costs and
benefits of this NOPR.
The societal costs of the action are the direct costs incurred by
project proponents during the IIP Process. DOE discussed in the
previous sections that most of the information required to be submitted
during the IIP Process would likely be required absent this proposal
and therefore the investment of time and resources required by this
proposed process are unlikely to be an additional burden on
respondents. However, the full costs are considered in this analysis
for transparency. These costs of $399,083 per year are detailed in the
Paperwork Reduction Act burden analysis. The table below captures the
10-year and 20-year net present value (NPV) of those annual costs under
two discount rates (3% and 7%), assuming annual cost increases of
2%.\11\
---------------------------------------------------------------------------
\11\ NPV analysis uses a 2% annual inflation, informed by the
Federal Reserve Economic Data 10-year and 30-year Inflation
Expectations and 5-year Forward Inflation Expectation.
CITAP Program NPV Cost Estimates
------------------------------------------------------------------------
Discount rate 3% 7%
------------------------------------------------------------------------
10-year NPV............................. $3,783,815.40 $3,096,337.74
20-year NPV............................. 7,215,911.27 5,015,060.67
------------------------------------------------------------------------
The benefits of the CITAP Program, designed to reduce the Federal
authorization timelines for interstate electric transmission facilities
and enable more rapid deployment of transmission infrastructure,
include direct benefits to the project proponents in decreased time and
expenditure on authorizations and a series of indirect social benefits.
DOE seeks comment on how much time or expense could be saved by the
procedures in the proposed rule.
Increasing the current pace of transmission infrastructure
deployment will generate benefits to the public in multiple ways that
can be categorized into grid operations, system planning, and non-
market benefits. Grid operation benefits include a reduction in the
congestion costs for generating and delivering energy; mitigation of
weather and variable generation uncertainty enhanced diversity of
supply, which increases market competition and reduces the need for
regional backup power options; and increased market liquidity and
competition.\12\ From a system planning standpoint, accelerated
transmission investments will allow the development of new, low cost
power plants in areas of high congestion which might not otherwise see
investment due to capacity constraints, and additional grid hardening
or resilience. Finally, non-market benefits to the public include
reduced costs for meeting public policy goals related to emissions and
equitable energy access, as well as emissions reductions system
wide.\13\
---------------------------------------------------------------------------
\12\ Millstein, A. et al. (2022) Empirical estimates of
transmission value using locational marginal prices, Empirical
Estimates of Transmission Value using Locational Marginal Prices
[verbar] Electricity Markets and Policy Group, 6. Available at:
https://emp.lbl.gov/publications/empirical-estimates-transmission.
\13\ Id.
---------------------------------------------------------------------------
The DOE Grid Deployment Office released a draft of the 2023
National Transmission Needs Study (Needs Study), which identified
significant need for the expansion of electric transmission across the
contiguous United States.\14\ This draft Needs Study and 2022
interconnection queue analysis by Berkeley Lab support DOE's analysis
that the CITAP Program will provide substantial benefits by reducing
authorization timelines for transmission projects and increasing the
speed of transmission development and clean energy integration.\15\
---------------------------------------------------------------------------
\14\ DOE, National Transmission Needs Study (Feb. 2023),
available at: https://www.energy.gov/sites/default/files/2023-02/022423-DRAFTNeedsStudyforPublicComment.pdf.
\15\ Berkeley Lab, Queued up: Characteristics of power plants
seeking transmission interconnection (2023), Electricity Markets and
Policy Group. Available at: https://emp.lbl.gov/queues.
---------------------------------------------------------------------------
The quantitative benefits of the CITAP Program will ultimately
depend on the projects that are designed and developed by project
proponents. However, the quantifiable benefits of transmission
development can be estimated generally. These quantifiable benefits are
the result of reductions in transmission congestion costs and avoided
emissions from the increased use of clean energy enabled by additional
transmission.
A 2023 analysis of transmission congestion costs by a consulting
group found that congestion costs have risen from an average of $7.1
billion between 2016 and 2021 to $20.8 billion in 2022.\16\ A 2022
study by Lawrence Berkeley National Lab found that between 2012 and
2021, a 1000 megawatts (MW) interregional transmission line could have
provided $20 to $670 million dollars per year in value by providing
congestion relief, which would have lowered energy costs to
consumers.\17\ Forward-looking projections for transmission value along
these parameters are not available, and DOE is reluctant to project the
complex changes to technical operations and market dynamics given the
wide range in projected value. However, DOE notes that it has estimated
that the CITAP Program will serve three projects a year that are each
roughly equivalent to a 1000 MW line, an increase in the average number
of these transmission projects authorized by a Federal agency
[[Page 55838]]
in the past 17 years. With decreased authorization times after the
CITAP Program is initialized, the additional capacity enabled by this
proposed action would likely provide substantial congestion relief,
consistent with the studies cited above.
---------------------------------------------------------------------------
\16\ (2023) Transmission congestion costs rise again in U.S.
RTOS, 1. Available at: https://gridstrategiesllc.com/wp-content/uploads/2023/07/GS_Transmission-Congestion-Costs-in-the-U.S.-RTOs1.pdf.
\17\ Millstein, et al., 2022, 15.
---------------------------------------------------------------------------
A key driver of transmission congestion costs is that the growth of
low-cost renewable energy projects is outpacing the rate of
transmission expansion. Inadequate transmission capacity can lead to
curtailment of available renewable energy in favor of thermal
generators, which increases costs to consumers due to fuel prices and
increases emissions.18 19 A recent projection found that
transmission capacity must expand by 2.3% annually to realize the full
benefits of the clean energy investments in the IRA. However, in the
last decade, transmission capacity has only increased an average of 1%
per year.\20\ The modeling projects that increasing the rate of
transmission capacity expansion by even just 50% (1% to 1.5% annually)
would significantly reduce emissions by enabling more clean energy on
the grid, estimating nearly 600 million tons of avoided emissions
(CO2 equivalent) in 2030 alone.\21\ An annual 1.5% increase
in transmission capacity is estimated to add 7,000 MW to the grid in
2030 and provide an estimated $53.4 billion in societal benefits from
avoided emissions that year, using a $89/ton social cost of carbon.\22\
DOE estimates that the CITAP Program will increase the number of high
capacity projects seeking Federal authorizations, providing a portion
of projected avoided emissions benefits through increased transmission
capacity. These benefits would continue to grow in the following years
as transmission capacity is increased.
---------------------------------------------------------------------------
\18\ Howland, E. (2023) US grid congestion costs jumped 56% to
$20.8B in 2022: Report, Utility Dive. Available at: https://
www.utilitydive.com/news/grid-congestion-costs-transmission-gets-
grid-strategies-report/687309/
#:~:text=Costs%20to%20consumers%20from%20congestion%20on%20the%20U.S.
,report%20released%20Thursday%20by%20consulting%20firm%20Grid%20Strat
egies.
\19\ Nationwide transmission congestion costs rise to $20.8
billion in 2022 (2023). Advanced Power Alliance. Available at:
https://poweralliance.org/2023/07/13/nationwide-transmission-
congestion-costs-rise-to-20-8-billion-in-2022/
#:~:text=By%20extrapolating%20data%20from%20Independent%20Market%20Mo
nitor%20reports,congestion%20costs%20reached%20%2420.8%20billion%20na
tionwide%20last%20year.
\20\ Jenkins, J.D. et al. (2022) Electricity transmission is key
to unlock the full potential of the Inflation Reduction Act, Zenodo.
Available at: https://zenodo.org/record/
7106176#:~:text=Previously%2C%20REPEAT%20Project%20estimated%20that%2
0IRA%20could%20cut,from%20electric%20vehicles%2C%20heat%20pumps%2C%20
and%20other%20electrification.
\21\ Id.
\22\ Technical support document: Social cost of carbon, methane,
(2021) whitehouse.gov, 5. Available at: https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf.
---------------------------------------------------------------------------
While these estimates of quantitative benefits are necessarily
approximate, the benefits of the CITAP Program to the public far offset
the costs to project proponents. By enabling rapid development of
enhanced transmission capacity, the CITAP Program will help increase
access to a diversity of generation sources, offset transmission
congestion and carbon costs, and deliver reliable, affordable power
that future consumers will need when and where they need it.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires that an agency prepare an initial regulatory flexibility
analysis for any regulation for which a general notice of proposed
rulemaking is required, unless the agency certifies that the rule, if
promulgated, will not have a significant economic impact on a
substantial number of small entities (5 U.S.C. 605(b)). As required by
E.O. 13272, ``Proper Consideration of Small Entities in Agency
Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published procedures and
policies on February 19, 2003, to ensure that the potential impacts of
its rules on small entities are properly considered during the
rulemaking process (see 68 FR 7990). DOE has made its procedures and
policies available on the Office of the General Counsel's website
(www.energy.gov/gc/office-general-counsel).
DOE reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. DOE certifies that the proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. The factual basis for this certification is set forth.
DOE expects that the provisions of this proposed rule, if adopted,
would not affect the substantive interests of such project proponents,
including any project proponents that are small entities. DOE expects
actions taken under the provisions to coordinate information and agency
communication before applications for Federal authorizations are
submitted to Federal agencies for review and consideration would help
reduce application review and decision-making timelines. Ensuring that
all project proponents avail themselves of the benefits of the IIP
Process will result in a clear, non-duplicative, process. Participation
in the CITAP Program is optional. Thus, proposing to make the IIP
Process a condition of the Program does not prevent project proponents
from submitting application outside of the Program. DOE, however,
encourages project proponents to take advantage of the Program based on
the urgency and a consensus among 2023 MOU signatories of the
anticipated benefits the Program will provide.
Furthermore, these changes are procedural and apply only to project
proponents that develop electric transmission infrastructure.
Historically, entities that develop transmission infrastructure are
larger entities. Therefore, these procedures are unlikely to directly
affect small businesses or other small entities. For these reasons, DOE
certifies that this proposed rule would not have a significant economic
impact on a substantial number of small entities. Accordingly, DOE has
not prepared a regulatory flexibility analysis for this proposed
rulemaking. DOE's certification and supporting statement of factual
basis will be provided to the Chief Counsel for Advocacy of the Small
Business Administration for review under 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act of 1995
The proposed rule contains information collection requirements
subject to review and approval by OMB pursuant to the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and the procedures
implementing that Act (5 CFR 1320.1 through 1320.18). The request to
approve and revise this collection requirement has been submitted to
OMB for approval. The proposed amendments are intended to improve the
pre-application procedures and result in more efficient processing of
applications.
This proposed rule would modify certain reporting and recordkeeping
requirements included in OMB Control No. 1910-5185 which is an ongoing
collection. The proposed revisions to DOE's regulations associated with
the OMB Control No. 1910-5185 information collection are intended to
ensure that DOE may carry out its statutory obligations under section
216(h) of the FPA.
Information supplied will be used to support an initiation request
necessary to begin DOE's IIP Process. The proposed revisions include a
project
[[Page 55839]]
proponent provide: (1) additional maps and information for the summary
of qualifying project; (2) a project participation plan; and (3) a
statement regarding whether the project is a FAST-41 covered project.
Additional information collection required includes thirteen resource
reports describing the project and its impacts to allow DOE to complete
a single EIS as part of the IIP Process. Those reports are: General
project description; Water use and quality; Fish, wildlife, and
vegetation; Cultural resources; Socioeconomics; Geological resources;
Soil resources; Land use, recreation, and aesthetics; Communities of
interest; Air and noise quality; Alternatives; Reliability and safety;
and Tribal interests. Additionally, during the review and close-out
meetings, project proponents will provide updates to project documents
and the project schedule.
The proposed revisions would represent an increase in information
collection requirements and burden for OMB No. 1910-5185.
The estimated burden and cost for the requirements contained in
this NOPR follow.
Each entry indicates the time estimated for a meeting or the time
estimated for the respondent to prepare the report or request.
Estimate of Annual Respondent Reporting and Recordkeeping Burden and Cost
----------------------------------------------------------------------------------------------------------------
Estimated
burden hours
Estimated Estimated Estimated (total Estimated
Form No./title (and/or other number of number of number of responses x reporting and
collection instrument name) respondents total burden hours number of recordkeeping
responses * per response hours per cost burden **
response)
----------------------------------------------------------------------------------------------------------------
Current Rule Estimate of Annual Respondent Reporting and Recordkeeping Burden and Cost
----------------------------------------------------------------------------------------------------------------
Section 900.2................... 5 5 1 5 $ 283
Section 900.4................... 5 10 5 50 2,830
-------------------------------------------------------------------------------
Total....................... .............. 15 .............. 55 3,113
----------------------------------------------------------------------------------------------------------------
Proposed Rule Estimate of Annual Respondent Reporting and Recordkeeping Burden and Cost
----------------------------------------------------------------------------------------------------------------
Initiation Request.............. 3 3 30 90 5,855
Initial Meeting................. 3 3 2 6 390
Resource Report 1: General 3 3 96 288 18,734
project description............
Resource Report 2: Water use and 3 3 125 375 24,394
quality........................
Resource Report 3: Fish, 3 3 200 600 39,030
wildlife, and vegetation.......
Resource Report 4: Cultural 3 3 200 600 39,030
resources......................
Resource Report 5: 3 3 160 480 31,224
Socioeconomics.................
Resource Report 6: Geological 3 3 160 480 31,224
resources......................
Resource Report 7: Soil 3 3 200 600 39,030
resources......................
Resource Report 8: Land use, 3 3 220 660 42,933
Recreation and aesthetics......
Resource Report 9: Communities 3 3 96 288 18,734
of interest....................
Resource Report 10: Air and 3 3 220 660 42,933
noise quality..................
Resource Report 11: Alternatives 3 3 160 480 31,224
Resource Report 12: Reliability 3 3 100 300 19,515
and safety.....................
Resource Report 13: Tribal 3 3 160 480 31,224
interests......................
Review Meeting Request.......... 3 3 1 3 195
Review Meeting.................. 3 3 2 6 390
Close-Out Meeting Request....... 3 3 1 3 195
Close-Out Meeting............... 3 3 1 3 195
-------------------------------------------------------------------------------
Total....................... 3 3 2,134 6,402 416,451
----------------------------------------------------------------------------------------------------------------
* One response per respondent.
** estimated cost based on median hourly wage for a project manager from https://www.bls.gov/oes/current/oes131111.htm ($45.81/hr) and fully burdened scaling factor from https://www.bls.gov/regions/southwest/news-release/employercostsforemployeecompensation_regions.htm (1.42).
DOE recognizes that some of the above estimates for the information
collection activities proposed are new. Therefore, DOE seeks comment on
the burden and costs associated with the requirements contained in this
proposed rule.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
D. Review Under the National Environmental Policy Act of 1969
DOE has analyzed this proposed rule in accordance with NEPA and
DOE's NEPA implementing regulations (10 CFR part 1021). DOE has
determined that this proposed rule is covered under the categorical
exclusion located at 10 CFR part 1021, subpart D, appendix A,
Categorical Exclusion A5 because the proposed rule would revise
existing regulations at 10 CFR part 900. The changes would affect the
process for the consideration of future proposals for electricity
transmission, and potential environmental impacts associated with any
particular proposal would be analyzed pursuant to NEPA and other
applicable requirements. DOE has considered whether this action would
result in extraordinary circumstances that would warrant preparation of
an Environmental Assessment or EIS and has determined that no such
extraordinary circumstances exist.
[[Page 55840]]
Therefore, DOE has determined that this proposed rulemaking does not
require an Environmental Assessment or an EIS.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal
agencies the general duty to adhere to the following requirements: (1)
eliminate drafting errors and ambiguity; (2) write regulations to
minimize litigation; (3) provide a clear legal standard for affected
conduct rather than a general standard; and (4) promote simplification
and burden reduction. Section 3(b) of E.O. 12988 specifically requires
that agencies make every reasonable effort to ensure that the
regulation: (1) clearly specifies the preemptive effect, if any; (2)
clearly specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; (6) specifies whether
administrative proceedings are to be required before parties may file
suit in court and, if so, describes those proceedings and requires the
exhaustion of administrative remedies; and (7) addresses other
important issues affecting clarity and general draftsmanship under any
guidelines issued by the Attorney General. Section 3(c) of E.O. 12988
requires agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this proposed rule meets the relevant standards of
E.O. 12988.
F. Review Under Executive Order 13132
E.O. 13132, ``Federalism'', 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. E.O. 13132 also requires agencies to have
an accountable process to ensure meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications. On March 14, 2000, DOE published a statement
of policy describing the intergovernmental consultation process it will
follow in the development of such regulations (see 65 FR 13735). DOE
has examined this document and has tentatively determined that the
proposed rule would not preempt State law and would not have a
substantial direct effect on the States, the relationship between the
National Government and the States, or the distribution of power and
responsibilities among the various levels of government. No further
action is required by E.O. 13132.
G. Review Under Executive Order 13175
Under E.O. 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' 65 FR 67249 (Nov. 6, 2000), DOE may not issue a
discretionary rule that has Tribal implications or that imposes
substantial direct compliance costs on Indian Tribal governments unless
DOE provides funds necessary to pay the costs of the Tribal governments
or consults with Tribal officials before promulgating the rule. The
proposed rule aims to improve the coordination of Federal
authorizations for proposed interstate electric transmission facilities
pursuant to the FPA. Specifically, the proposed amendments are intended
to refine the pre-application procedures and result in more efficient
processing of applications. As a result, the proposed amendments in
this document would not have substantial direct effects on one or more
Indian Tribes, would not impose substantial direct compliance costs on
Indian Tribal governments, and would not preempt Tribal laws.
Accordingly, the funding and consultation requirements of E.O. 13175 do
not apply, and a Tribal summary impact statement is not required.
DOE invites Indian Tribal governments to provide comments on the
costs and effects that this proposed rule could potentially have on
Tribal communities.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub.
L. 104-4) requires each Federal agency to assess the effects of a
Federal regulatory action on State, local, and Tribal governments, and
the private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C.
1531)) For a proposed regulatory action likely to result in a rule that
may cause the expenditure by State, local, and Tribal governments, in
the aggregate, or by the private sector of $100 million or more in any
one year (adjusted annually for inflation), section 202 of UMRA
requires a Federal agency to publish a written statement that estimates
the resulting costs, benefits, and other effects on the national
economy (2 U.S.C. 1532(a), (b)). UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
Federal intergovernmental mandate,'' and requires an agency plan for
giving notice and opportunity for timely input to potentially affected
small governments before establishing any requirements that might
significantly or uniquely affect them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA (see 62 FR 12820) (this policy is also available at:
www.energy.gov/gc/guidance-opinions). DOE examined the proposed rule
according to UMRA and its statement of policy and has determined that
the rule contains neither an intergovernmental mandate, nor a mandate
that may result in the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any year. Accordingly, no further assessment or
analysis is required under UMRA.
I. Review Under Executive Order 12630
DOE has determined, under E.O. 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' 53 FR
8859 (March 18, 1988), that this proposed rule would not result in any
takings that might require compensation under the Fifth Amendment to
the U.S. Constitution.
J. Review Under Executive Order 13211
E.O. 13211, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22,
2001), requires Federal agencies to prepare and submit to the OMB a
Statement of Energy Effects for any proposed significant energy action.
A ``significant energy action'' is defined as any action by an agency
that promulgated or is expected to lead to promulgation of a final
rule, and that: (1)(i) is a significant regulatory action under E.O.
12866, or any successor order; and (ii) is likely to have a significant
adverse effect on the supply, distribution, or use of energy, or (2) is
designated by the Administrator of OIRA as a significant energy action.
For any proposed significant energy action, the agency must give a
detailed statement of any adverse effects on energy supply,
distribution, or use should the proposal be implemented, and of
reasonable alternatives to the
[[Page 55841]]
action and their expected benefits on energy supply, distribution, and
use. This proposed rule is intended to improve the pre-application
procedures for certain transmission projects, and therefore result in
the more efficient processing of applications, and thus this proposed
rule would not have a significant adverse effect on the supply,
distribution, or use of energy and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
K. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well-being. This proposed rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
L. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for Federal agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002).
DOE has reviewed this proposed rule under the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
V. Public Participation--Submission of Comments
DOE will accept comments, data, and information regarding this
proposed rule no later than the date provided in the DATES section at
the beginning of this document. Interested individuals are invited to
participate in this proceeding by submitting data, views, or arguments
with respect to the specific sections addressed in this proposed rule
using the methods described in the ADDRESSES section at the beginning
of this document.
1. Submitting comments via www.regulations.gov. The
www.regulations.gov web page will require you to provide your name and
contact information. Your contact information will be viewable by DOE
Grid Deployment Office staff only. Your contact information will not be
publicly viewable except for your first and last names, organization
name (if any), and submitter representative name (if any). If your
comment is not processed properly because of technical difficulties,
DOE will use this information to contact you. If DOE cannot read your
comment due to technical difficulties and cannot contact you for
clarification, DOE may not be able to consider your comment. However,
your contact information will be publicly viewable if you include it in
the comment itself or in any documents attached to your comment. Any
information that you do not want to be publicly viewable should not be
included in your comment, nor in any document attached to your comment.
Persons viewing comments will see only first and last names,
organization names, correspondence containing comments, and any
documents submitted with the comments.
Do not submit to www.regulations.gov information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (CBI)). Comments submitted through
www.regulations.gov cannot be claimed as CBI. Comments received through
www.regulations.gov will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
DOE processes submissions made through www.regulations.gov before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that www.regulations.gov
provides after you have successfully uploaded your comment.
2. Submitting comments via email or mail. Comments and documents
submitted via email or mail will also be posted to www.regulations.gov.
If you do not want your personal contact information to be publicly
viewable, do not include it in your comment or any accompanying
documents. Instead, provide your contact information in a cover letter.
Include your first and last names, email address, telephone number, and
optional mailing address. The cover letter will not be publicly
viewable as long as it does not include any comments.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, that are written in English, and that are free of any
defects or viruses. Documents should not contain special characters or
any form of encryption and, if possible, they should carry the
electronic signature of the author.
3. Confidential Business Information. Pursuant to the provisions of
10 CFR 1004.11, any person submitting information or data he or she
believes to be confidential and exempt by law from public disclosure
should submit two well-marked copies: One copy of the document marked
``CONFIDENTIAL'' including all the information believed to be
confidential, and one copy of the document marked ``NON-CONFIDENTIAL''
with the information believed to be confidential deleted. Submit these
documents via email to [email protected]. DOE will make its own
determination about the confidential status of the information and
treat it according to its determination.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
4. Campaign form letters. Please submit campaign form letters by
the originating organization in batches of between 50 to 500 form
letters per PDF or as one form letter with a list of supporters' names
compiled into one or more PDFs. This reduces comment processing and
posting time.
VI. Approval by the Office of the Secretary of Energy
The Secretary of Energy has approved publication of this notice of
proposed rulemaking and request for comment.
List of Subjects in 10 CFR Part 900
Electric power, Electric utilities, Energy, Reporting and
recordkeeping requirements.
Signing Authority
This document of the DOE was signed on August 8, 2023, by Maria D.
Robinson, Director, Grid Deployment Office, pursuant to delegated
authority from the Secretary of Energy. That document with the original
signature and date is maintained by DOE. For administrative purposes
only, and in compliance with requirements of the Office of the Federal
Register, the
[[Page 55842]]
undersigned DOE Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of the Department of Energy. This administrative
process in no way alters the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on August 8, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, the Department of Energy
proposes to revise 10 CFR part 900 to read as follows:
PART 900--COORDINATION OF FEDERAL AUTHORIZATIONS FOR ELECTRIC
TRANSMISSION FACILITIES
Sec.
900.1 Purpose and scope.
900.2 Definitions.
900.3 Applicability to other projects.
900.4 Purpose of IIP Process.
900.5 Initiation of IIP Process.
900.6 Project proponent resource reports.
900.7 Standard and project-specific schedules.
900.8 IIP Process review meeting.
900.9 IIP Process close-out meeting.
900.10 Consolidated administrative docket.
900.11 NEPA lead agency and selection of NEPA co-lead agency.
900.12 Environmental review.
900.13 Severability.
Authority: 16 U.S.C. 824p(h).
Sec. 900.1 Purpose and scope.
(a) Pursuant to section 216(h) of the Federal Power Act (16 U.S.C.
824p(h)), the Department of Energy (DOE) establishes the Coordinated
Interagency Transmission Authorizations and Permits Program (CITAP
Program) under this part to coordinate the review and processes related
to Federal authorizations necessary to site a transmission facility.
Pursuant to section 216(h)(4)(A), this part establishes the mechanism
by which DOE will set intermediate milestones and ultimate deadlines
for the processes related to deciding whether to issue such
authorizations. In addition, as the lead agency and in collaboration
with any National Environmental Policy Act (NEPA) co-lead agency and in
consultation with the relevant Federal entities, as applicable, DOE
will prepare a single environmental impact statement (EIS), which will
be designed to serve the needs of all relevant Federal agencies and
inform all Federal authorization decisions on the proposed qualifying
project.
(b) This part provides a process for the timely submission of
information needed for Federal decisions related to authorizations for
proposed electric transmission facilities. This part seeks to ensure
that electric transmission projects are developed consistent with the
nation's environmental laws, including laws that protect endangered and
threatened species, critical habitats, and cultural and historic
properties. This part provides a framework, called the Integrated
Interagency Pre-Application (IIP) Process, by which DOE will coordinate
submission of materials necessary for Federal authorizations and
related environmental reviews required under Federal law to site
qualified electric transmission facilities, and integrates the IIP
Process into the CITAP Program.
(c) This part describes the timing and procedures for the IIP
Process, which should be initiated prior to a project proponent's
submission of any application for a required Federal authorization. The
IIP Process provides for timely and focused pre-application meetings
with relevant Federal and non-Federal entities, as well as for early
identification of potential siting constraints and opportunities and
seeks to promote thorough and consistent stakeholder engagement by a
project proponent. At the close-out of each IIP Process, DOE in
coordination with the relevant Federal entities will establish the
schedule by which all Federal authorizations and related reviews
necessary for the qualifying project will be conducted.
(d) This part improves the Federal permitting process by
facilitating the early submission, compilation, and documentation of
information needed for coordinated review by relevant Federal entities
under the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
This part also facilitates expeditious action on necessary Federal
authorizations by ensuring that relevant Federal entities coordinate
their consideration of those applications and by providing non-Federal
entities the opportunity to coordinate their non-Federal permitting and
environmental reviews with the reviews of the relevant Federal
entities.
(e) This part facilitates improved and earlier coordination of and
consultation between relevant Federal entities, relevant non-Federal
entities, and others pursuant to section 106 of the National Historic
Preservation Act (54 U.S.C. 306108) (NHPA) and its implementing
regulations found at 36 CFR part 800. Under this part, DOE may
establish it has an undertaking with the potential to affect historic
properties and, following the IIP review meeting, authorize a project
proponent, as a CITAP applicant, to initiate section 106 consultation
for the undertaking consistent with 36 CFR 800.2(c)(4). Prior to that
determination, this part requires project proponents to gather initial
information and make recommendations relevant to the section 106
process to the extent possible. This part also establishes DOE as co-
lead for the section 106 process, consistent with DOE's role as lead or
co-lead agency for purposes of NEPA, in order to maximize opportunities
for coordination between the NEPA and section 106 processes. Federal
entities remain responsible for government-to-government consultation
with Indian Tribes (and government-to-sovereign consultation in the
context of Native Hawaiian relations) and for any findings and
determinations required by and reserved to Federal agencies in 36 CFR
part 800.
(f) This part applies only to qualifying projects as defined by
Sec. 900.2.
(g) Participation in the IIP Process does not alter any
requirements to obtain necessary Federal authorizations for electric
transmission facilities. Nor does this part alter any responsibilities
of the relevant Federal entities for environmental review or
consultation under applicable law.
(h) The Director may waive any requirement imposed on a project
proponent under this part if, in the Director's discretion, the
Director determines that the requirement is unnecessary, duplicative,
or impracticable under the circumstances relevant to the qualifying
project. Where the principal project developer is itself a Federal
entity that would be otherwise expected to prepare an EIS for the
project, the Director shall consider modifications to the requirements
under this part as may be necessary under the circumstances.
Sec. 900.2 Definitions.
As used in this part:
Affected landowner means an owner of real property interests who is
usually referenced in the most recent county or city tax records, and
whose real property:
(1) Is located within either 0.25 miles of a proposed study
corridor or route of a qualifying project or at a minimum distance
specified by State law, whichever is greater; or
(2) Contains a residence within 3,000 feet of a proposed
construction work area for a qualifying project.
Authorization means any license, permit, approval, finding,
determination, or other administrative decision required under Federal,
State,
[[Page 55843]]
local, or Tribal law to site an electric transmission facility,
including permits, special use authorization, certifications, opinions,
or other approvals.
Communities of interest include disadvantaged, fossil energy,
rural, Tribal, indigenous, geographically proximate, or communities
with environmental justice concerns that could be affected by the
qualifying project.
Director means the Director of the DOE Grid Deployment Office, that
person's delegate, or another DOE official designated to perform the
functions of this part by the Secretary of Energy.
Federal authorization means any authorization required under
Federal law.
Federal entity means any Federal agency or department.
Indian Tribe has the same meaning as provided by 25 U.S.C. 5304(e).
Landscape mitigation approach means an approach that applies the
mitigation hierarchy to develop mitigation measures for impacts to
resources from a qualifying project at the relevant scale, however
narrow or broad, that is necessary to sustain those resources, or
otherwise achieve established goals for those resources. The mitigation
hierarchy refers to an approach that first seeks to avoid, then
minimize impacts, then, when necessary, compensate for residual
impacts. A landscape mitigation approach identifies the needs and
baseline conditions of targeted resources, potential impacts from the
qualifying project, cumulative impacts of past and likely projected
disturbances to those resources, and future disturbance trends, then
uses this information to identify priorities for mitigation measures
across the relevant area to provide the maximum benefit to the impacted
resources. Such an approach includes full consideration of the
conditions of additionality (meaning that the benefits of a
compensatory mitigation measure improve upon the baseline conditions in
a manner that is demonstrably new and would not have occurred without
the mitigation measure) and durability (meaning that the effectiveness
of a mitigation measure is sustained for the duration of the associated
direct and indirect impacts).
Landscape mitigation strategies or plans mean documents developed
through, or external to, the NEPA process that apply a landscape
mitigation approach to identify appropriate mitigation measures in
advance of potential impacts to resources from qualifying projects.
MOU signatory agency means a signatory of the interagency
Memorandum of Understanding (MOU) executed in May 2023, titled
``Memorandum of Understanding among the U.S. Department of Agriculture,
Department of Commerce, Department of Defense, Department of Energy,
the Environmental Protection Agency, the Council on Environmental
Quality, the Federal Permitting Improvement Steering Council,
Department of the Interior, and the Office of Management and Budget
Regarding Facilitating Federal Authorizations for Electric Transmission
Facilities.''
NEPA co-lead agency means the agency means the Federal entity
designated under Sec. 900.11.
Non-Federal entity means an Indian Tribe, multi-State governmental
entity, State agency, or local government agency.
Participating agencies means:
(1) The Department of Agriculture (USDA);
(2) The Department of Commerce;
(3) The Department of Defense (DOD);
(4) The Department of Energy;
(5) The Environmental Protection Agency (EPA);
(6) The Council on Environmental Quality;
(7) The Office of Management and Budget;
(8) The Department of the Interior (DOI);
(9) The Federal Permitting Improvement Steering Council (FPISC);
(10) Other agencies and offices as the Secretary of Energy may from
time to time invite to participate; and
(11) The following independent agencies, to the extent consistent
with their statutory authority and obligations, and determined by the
chair or executive director of each agency, as appropriate:
(i) The Federal Energy Regulatory Commission (FERC); and
(ii) The Advisory Council on Historic Preservation.
Project area means the geographic area considered when the project
proponent develops study corridors and then potential routes for
environmental review and potential project siting as a part of the
project proponent's planning process for a qualifying project. It is an
area located between the two end points of the project (e.g.,
substations), including their immediate surroundings, as well as any
proposed intermediate substations. The size of the project area should
be sufficient to allow for the evaluation of various potential
alternative routes and route segments with differing environmental,
engineering, and regulatory constraints. The project area does not
necessarily coincide with ``permit area,'' ``area of potential
effect,'' ``action area,'' or other defined terms of art that are
specific to types of regulatory review.
Project proponent means a person or entity who initiates the IIP
Process in anticipation of seeking a Federal authorization for a
qualifying project.
Qualifying project means:
(1) A high-voltage electric transmission line (230 kV or above) and
its attendant facilities, or other regionally or nationally significant
electric transmission line and its attendant facilities:
(i) For which all or part of the proposed electric transmission
line is used for the transmission of electric energy in interstate or
international commerce for sale at wholesale;
(ii) Which is expected to require preparation of an environmental
impact statement (EIS) pursuant to NEPA to inform an agency decision on
a Federal authorization;
(iii) Which is not proposed for authorization under section 8(p) of
the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p));
(iv) Which will not require a construction or modification permit
from FERC pursuant to section 216(b) of the Federal Power Act; and
(v) Which is not wholly located within the Electric Reliability
Council of Texas interconnection; or
(2) An electric transmission facility that is approved by the
Director under the process set out in Sec. 900.3.
Relevant Federal entity means a Federal entity with jurisdictional
interests that may have an effect on a qualifying project, that is
responsible for issuing a Federal authorization for the qualifying
project, that has relevant expertise with respect to environmental and
other issues pertinent to or potentially affected by the qualifying
project, or that provides funding for the qualifying project. The term
includes participating agencies. The term includes a Federal entity
with either permitting or non-permitting authority; for example, those
entities with which consultation or review must be completed before a
project may commence, such as DOD for an examination of military test,
training or operational impacts.
Relevant non-Federal entity means a non-Federal entity with
relevant expertise or jurisdiction within the project area, that is
responsible for issuing an authorization for the qualifying project,
that has special expertise with respect to environmental and other
issues pertinent to or potentially affected by the qualifying
[[Page 55844]]
project, or that provides funding for the qualifying project. The term
includes an entity with either permitting or non-permitting authority,
such as an Indian Tribe, Native Hawaiian Organization, or State or
Tribal Historic Preservation Offices, with whom consultation must be
completed in accordance with section 106 of the NHPA prior to approval
of a permit, right-of-way, or other authorization required for a
Federal authorization.
Route means an area along a linear path within which a qualifying
project could be sited that is:
(1) Wide enough to allow minor adjustments in the alignment of the
qualifying project to avoid sensitive features or to accommodate
potential engineering constraints; and
(2) Narrow enough to allow detailed study.
Stakeholder means any relevant non-Federal entity, any non-
governmental organization, affected landowner, or other person
potentially affected by a proposed qualifying project.
Study corridor means a contiguous area (not to exceed one mile in
width) within the project area where alternative routes or route
segments may be considered for further study.
Sec. 900.3 Applicability to other projects.
(a) Following the procedures set out in this section, the Director
may determine that an electric transmission facility that does not meet
the description of a qualifying project under paragraph (1) of the
definition in Sec. 900.2 is a qualifying project under paragraph (2)
of the definition.
(b) A requestor seeking DOE assistance under this part for an
electric transmission facility that does not meet the description of a
qualifying project under paragraph (1) of the definition in Sec. 900.2
must file a request for coordination with the Director. The request
must contain:
(1) The legal name of the requester; its principal place of
business; and the name, title, and mailing address of the person or
persons to whom communications concerning the request for coordination
are to be addressed;
(2) A concise description of the proposed facility sufficient to
explain its scope and purpose;
(3) A list of anticipated relevant Federal entities involved in the
proposed facility; and
(4) A list of anticipated relevant non-Federal entities involved in
the proposed facility, including any agency serial or docket numbers
for pending applications.
(c) Not later than 30 calendar days after the date that the
Director receives a request under this section, the Director, in
consultation with the relevant Federal entities, will determine if the
electric transmission facility is a qualifying project under this part
and will notify the project proponent in writing of one of the
following:
(1) If accepted, that the facility is a qualifying project and the
project proponent must submit an initiation request as set forth under
Sec. 900.5; or
(2) If not accepted, that the project proponent must follow the
procedures of each relevant Federal entity that has jurisdiction over
the facility without DOE performing a coordinating function.
(d) For a transmission facility that will require a construction or
modification permit from FERC pursuant to section 216(b) of the Federal
Power Act, DOE may not consider a request for assistance under this
section unless the requestor under paragraph (b) of this section is
FERC acting through its chair.
(e) At the discretion of the MOU signatory agencies, this section
may be applied to a transmission facility proposed for authorization
under section 8(p) of the Outer Continental Shelf Lands Act, if the
proposed authorization is independent of any generation project.
(f) This section does not apply to:
(1) A transmission facility proposed to be authorized under section
8(p) of the Outer Continental Shelf Lands Act in conjunction with a
generation project; or
(2) A transmission facility wholly located within the Electric
Reliability Council of Texas interconnection.
Sec. 900.4 Purpose of IIP Process.
(a) The Integrated Interagency Pre-Application (IIP) Process is
intended for a project proponent who has identified potential study
corridors and/or potential routes and the proposed locations of any
intermediate substations for a qualifying project.
(b) Participation in the IIP Process is a prerequisite for the
coordination provided by DOE between relevant Federal entities,
relevant non-Federal entities, and the project proponent.
(c) The IIP Process ensures early interaction between the project
proponents, relevant Federal entities, and relevant non-Federal
entities to enhance early understanding by those entities. Through the
IIP Process, the project proponent will provide relevant Federal
entities and relevant non-Federal entities with a clear description of
the qualifying project, the project proponent's siting process, and the
environmental and community setting being considered by the project
proponent for siting the transmission line; and will coordinate with
relevant Federal entities to develop resource reports that will serve
as inputs, as appropriate, into the relevant Federal analyses and
facilitate early identification of project issues.
(d) The IIP Process is an iterative process anchored by three
meetings: the initial meeting, review meeting, and close-out meeting.
These meetings, defined in Sec. Sec. 900.5, 900.8 and 900.9, are
milestones in the process and do not preclude any additional meetings
or communications between the project proponent and the relevant
Federal entities. The iterative nature of the process is provided for
in procedures for evaluating the completeness of submitted materials
and the suitability of materials for the relevant Federal entities'
decision-making before each milestone.
(e) DOE, in exercising its responsibilities under this part, will
communicate regularly with FERC, electric reliability organizations and
electric transmission organizations approved by FERC, relevant Federal
entities, and project proponents. DOE will use information technologies
to provide opportunities for relevant Federal entities to participate
remotely.
(f) DOE, in exercising its responsibilities under this part, will
to the maximum extent practicable and consistent with Federal law,
coordinate the IIP Process with any relevant non-Federal entities. DOE
will use information technologies to provide opportunities and reduce
burdens for relevant non-Federal entities to participate remotely.
(g) The Director may at any time require the project proponent to
provide additional information necessary to resolve issues raised by
the IIP Process.
(h) Pursuant to 10 CFR 1004.11, any person submitting information
during the IIP Process that the person believes to be confidential and
exempt by law from public disclosure should submit two well-marked
copies, one marked ``confidential'' that includes all the information
believed to be confidential, and one marked ``non-confidential'' with
the information believed to be confidential deleted or redacted. DOE
will make its own determination about the confidential status of the
information and treat it according to its determination. The project
proponent must request confidential treatment for all material filed
with DOE containing location, character, and ownership information
about cultural resources.
(i) Pursuant to 10 CFR 1004.13, any person submitting information
during
[[Page 55845]]
the IIP Process that the person believes might contain Critical
Electric Infrastructure Information (CEII) should submit a request for
CEII designation of information.
Sec. 900.5 Initiation of IIP Process.
(a) Initiation request. A project proponent shall submit an
initiation request to DOE. The project proponent may decide when to
submit the initiation request. The initiation request must include,
based on best available information:
(1) A summary of the qualifying project, as described by paragraph
(b) of this section;
(2) Associated maps, geospatial information, and studies (provided
in electronic format), as described by paragraph (c) of this section;
(3) A project participation plan, as described by paragraph (d) of
this section; and
(4) A statement regarding the proposed qualifying project's status
pursuant to Title 41 of the Fixing America's Surface Transportation Act
(FAST-41) (42 U.S.C. 4370m-2(b)(2)), as described by paragraph (e) of
this section.
(b) Summary of the qualifying project. The summary of the
qualifying project is limited to 10 pages, single-spaced and must
include:
(1) The following information:
(i) The project proponent's legal name and principal place of
business;
(ii) The project proponent's contact information and designated
point(s) of contact;
(iii) Whether the project proponent is an individual, partnership,
corporation, or other entity and, if applicable, the State laws under
which the project proponent is organized or authorized; and
(iv) If the project proponent resides or has its principal office
outside the United States, documentation related to designation by
irrevocable power of attorney of an agent residing within the United
States;
(2) A statement of the project proponent's interests and
objectives;
(3) To the extent available, copies of or links to:
(i) Any regional electric transmission planning documents, regional
reliability studies, regional congestion or other related studies that
relate to the qualifying project or the need for the qualifying
project; and
(ii) Any relevant interconnection requests;
(4) A brief description of the evaluation criteria and methods used
by the project proponent to identify and develop the potential study
corridors or potential routes for the proposed qualifying project;
(5) A brief description of the proposed qualifying project,
including end points, voltage, ownership, intermediate substations if
applicable, and, to the extent known, any information about constraints
or flexibility with respect to the qualifying project;
(6) Identification of any environmental and engineering firms and
sub-contractors under contract to develop the qualifying project;
(7) The project proponent's proposed schedule for filing necessary
Federal and State applications, construction start date, and planned
in-service date, assuming receipt of all necessary authorizations; and
(8) A list of anticipated relevant Federal entities and relevant
non-Federal entities, including contact information for each Federal
agency, State agency, Indian Tribe, or multi-State entity that is
responsible for or has a role in issuing an authorization or
environmental review for the qualifying project.
(c) Maps, geospatial information, and studies. The Integrated
Interagency Pre-Application (IIP) Process initiation request must
include maps, geospatial information, and studies in support of the
information provided in the summary of the qualifying project under
paragraph (b) of this section. Maps must be of sufficient detail to
identify the proposed route or routes. Project proponents must provide
the maps, information, and studies as electronic data files that may be
readily accessed by relevant Federal entities and relevant non-Federal
entities. The maps, information, and studies described in this
paragraph (c) must include:
(1) Location maps and plot plans to scale showing all major
components, including a description of zoning and site availability for
any permanent facilities; cultural resource location information should
be submitted in accordance with Sec. 900.4(h);
(2) A map of the project area showing potential study corridors
and/or potential routes;
(3) Electronic access to any existing data or studies relevant to
the summary information provided as part of the initiation request; and
(4) Citations identifying sources, data, and analyses used to
develop the IIP Process initiation request materials.
(d) Project participation plan. The project participation plan,
which may not exceed 10, single-spaced pages, summarizes the
stakeholder outreach that the project proponent conducted prior to
submission of the initiation request, and describes the project
proponent's planned outreach to communities of interest going forward.
A supplemental appendix may be submitted to provide sufficient detail
in addition to the narrative elements. The project participation plan
must include:
(1) A summary of prior outreach to communities of interest and
stakeholders including:
(i) A description of what work already has been done, including
stakeholder and community outreach and public engagement related to
project engineering and route planning, as well as any entities and
organizations interested in the proposed undertaking;
(ii) A list of environmental, engineering, public affairs, other
contractors or consultants employed by the proponent to facilitate
public outreach;
(iii) A description of any materials provided to the public, such
as environmental surveys or studies;
(iv) A description of the communities of interest identified and
the process by which they were identified;
(v) A general description of the real property interests that would
be impacted by the project and the rights that the owners and Federal
land managers of those property interests would have under State law;
and
(vi) A summary of comments received during these previous
engagement activities, issues identified by stakeholders, communities
of interest (including various resource issues, differing project
alternative corridors or routes, and revisions to routes), and
responses provided to commenters, if applicable; and
(2) A public engagement plan, which must:
(i) Describe the project proponent's outreach plan and status of
those activities, including planned future activities corresponding to
each of the items identified in paragraphs (d)(1)(i) through (vi) of
this section, specifying the planned dates or frequency;
(ii) Describe the manner in which the project proponent will reach
out to communities of interest about potential mitigation of concerns;
(iii) Describe planned outreach activities during the permitting
process, including efforts to identify, and engage, individuals with
limited English proficiency and linguistically isolated communities,
and provide accommodations for individuals with accessibility needs;
and
(iv) Discuss the specific tools and actions used by the project
proponent to facilitate stakeholder communications and public
information, including a readily accessible, easily identifiable,
[[Page 55846]]
single point of contact for the project proponent.
(e) FAST-41 statement. The FAST-41 statement required under
paragraph (a) of this section must specify the status of the proposed
qualifying project pursuant to FAST-41. The statement must either:
(1) State whether the project proponent has sought FAST-41 coverage
pursuant to 42 U.S.C. 4370m-2(a)(1); and state whether the Executive
Director of the FPISC has created an entry on the Permitting Dashboard
for the project as a covered project pursuant to 42 U.S.C. 4370m-
2(b)(2)(A); or
(2) State that the project proponent elected not to apply to be a
FAST-41 covered project at this time.
(f) Determination. Not later than 15 calendar days after DOE
receives an IIP Process initiation request, DOE shall provide relevant
Federal entities and relevant non-Federal entities with an electronic
copy of the initiation request, and notify each entity that:
(1) Based on DOE's initial review of the initiation request, DOE
has identified the entity as either a relevant Federal entity or
relevant non-Federal entity for the project; and
(2) The entity should participate in the IIP Process for the
project, with DOE's rationale for that determination.
(g) Notification of initiation request determination. Not later
than 30 calendar days after the date that DOE receives an initiation
request, DOE shall notify the project proponent and all relevant
Federal entities and relevant non-Federal entities that:
(1) The initiation request meets the requirements of this section,
including that the project is a qualifying project; or
(2) The initiation request does not meet the requirements of this
section. DOE will provide the reasons for that finding and a
description of how the project proponent may, if applicable, address
any deficiencies in the initiation request so that DOE may reconsider
its determination.
(h) Initial meeting. If a project proponent submits a valid
initiation request, DOE, in consultation with the identified relevant
Federal entities, shall convene the IIP Process initial meeting with
the project proponent and all relevant Federal entities notified by DOE
under paragraph (g) of this section as soon as practicable and no later
than 30 calendar days after the date that DOE provides notice under
paragraph (g) that the initiation request meets the requirements of
this section. DOE shall also invite relevant non-Federal entities to
participate in the initial meeting. During the initial meeting:
(1) DOE and the relevant Federal entities shall discuss with the
project proponent the IIP Process, Federal authorization process,
related environmental reviews, any arrangements for the project
proponent to contribute funds to DOE to cover costs incurred by DOE and
the relevant Federal entities in the IIP Process (in accordance with 42
U.S.C. 7278), any requirements for entering into cost recovery
agreements, and paying for third-party contractors under DOE's
supervision, where applicable;
(2) DOE will identify any Federal applications that must be
submitted during the IIP Process, to enable relevant Federal entities
to begin work on the review process, and those applications that will
be submitted after the IIP Process. All application submittal timelines
will be accounted for in the project-specific schedule described in
Sec. 900.7;
(3) The project proponent shall describe the qualifying project and
the contents of the initiation request; and
(4) DOE and the relevant Federal entities, along with any relevant
non-Federal entities who choose to participate, will review the
information provided by the project proponent and publicly available
information, and, to the extent possible and based on agency expertise
and experience, preliminarily identify the following and other
reasonable criteria for adding, deleting, or modifying preliminary
routes from further consideration within the identified study
corridors, including:
(i) Potential environmental, visual, historic, cultural, economic,
social, or health effects or harm based on the potential project or
proposed siting, and anticipated constraints (for instance, pole height
and corridor width based on line capacity to improve safety and
resiliency of project);
(ii) Potential cultural resources and historic properties of
concern;
(iii) Areas under (or potentially under) special protection by
State or Federal statute and areas subject to a Federal entity or non-
Federal entity decision that could potentially increase the time needed
for project evaluation and potentially foreclose approval of siting a
transmission line route. Such areas may include, but are not limited
to, properties or sites that may be of traditional religious or
cultural importance to Indian Tribe(s), National Scenic and Historic
Trails, National Landscape Conservation system units managed by the
Bureau of Land Management (BLM), Land and Water Conservation Fund
lands, National Wildlife Refuges, national monuments, units of the
National Park System, national marine sanctuaries, or marine national
monuments;
(iv) Opportunities to site routes through designated corridors,
previously disturbed lands, and lands with existing infrastructure as a
means of potentially reducing impacts and known conflicts as well as
the time needed for affected Federal land managers to evaluate an
application for a Federal authorization if the route is sited through
such areas (e.g., colocation with existing infrastructure or location
on previously disturbed lands or in energy corridors designated by the
Department of the Interior or the Department of Agriculture under
section 503 of the Federal Land Policy and Management Act (Pub. L. 94-
579) or section 368 of the Energy Policy Act of 2005 (Pub. L. 109-58),
an existing right-of-way, a National Interest Energy Transmission
Corridor, or a utility corridor identified in a land management plan);
(v) Potential constraints caused by impacts on military test,
training, and operational missions, including impacts on installations,
ranges, and airspace;
(vi) Potential constraints caused by impacts on the United States'
aviation system;
(vii) Potential constraints caused by impacts to navigable waters
of the United States;
(viii) Potential avoidance, minimization, and conservation
measures, such as compensatory mitigation (onsite and offsite),
developed through a landscape mitigation approach or, where available,
landscape mitigation strategies or plans to reduce the potential impact
of the qualifying project to resources requiring mitigation; and
(ix) Based on available information provided by the project
proponent, biological (including threatened, endangered, or otherwise
protected avian, aquatic, and terrestrial species and aquatic
habitats), visual, cultural, historic, and other surveys and studies
that may be required for preliminary proposed routes.
(i) Feedback to project proponent. Feedback provided to the project
proponent under paragraph (h) of this section does not constitute a
commitment by any relevant Federal entity to approve or deny a Federal
authorization request, nor does the IIP Process limit agency discretion
regarding NEPA review.
(j) Draft initial meeting summary. Not later than 15 calendar days
after the initial meeting, DOE shall:
(1) Prepare a draft initial meeting summary that includes a summary
of the meeting discussion, a description of
[[Page 55847]]
key issues and information gaps identified during the meeting, and any
requests for more information from relevant Federal entities and
relevant non-Federal entities; and
(2) Convey the draft summary to the project proponent, relevant
Federal entities, and any relevant non-Federal entities that
participated in the meeting.
(k) Corrections. The project proponent and entities that received
the draft initial meeting summary under paragraph (j) of this section
will have 15 calendar days following receipt of the draft initial
meeting summary to review the draft and provide corrections to DOE.
(l) Final summary. Not later than 15 calendar days following the
close of the 15-day review period under paragraph (k) of this section,
DOE shall:
(1) Prepare a final initial meeting summary by incorporating
received corrections, as appropriate;
(2) Add the final summary to the consolidated administrative docket
described by Sec. 900.10; and
(3) Provide an electronic copy of the summary to all relevant
Federal entities, relevant non-Federal entities, and the project
proponent.
Sec. 900.6 Project proponent resource reports.
(a) Preparation and submission. The project proponent shall prepare
and submit to DOE the 13 project proponent resource reports (``resource
reports'') described in this section. The project proponent may submit
the resource reports at any time before requesting a review meeting
under Sec. 900.8 and shall, at the direction of DOE, revise resource
reports in response to comments received from relevant Federal entities
and relevant non-Federal entities during the Integrated Interagency
Pre-Application (IIP) Process.
(b) Content. Each resource report must include concise
descriptions, based on the best available scientific and commercial
information, of the known existing environment and major site
conditions in the project area. The detail of each resource report must
be commensurate with the complexity of the proposal and its potential
for environmental impacts. Each topic in each resource report must be
addressed or its omission justified. If material required for one
resource report is provided in another resource report or in another
exhibit, it may be incorporated by reference. If any resource report
topic is not addressed at the time the applicable resource report is
filed or its omission is not addressed, the report must explain why the
topic is missing.
(c) Requirements for IIP Process progression. Failure of the
project proponent to provide at least the required initial or revised
content will prevent progress through the IIP Process to the IIP review
or close-out meetings, unless the Director determines that the project
proponent has provided an acceptable reason for the item's absence and
an acceptable timeline for filing it. Failure to file within the
accepted timeline will prevent further progress in the IIP Process.
(d) General requirements. As appropriate, each resource report
shall:
(1) Address conditions or resources that might be directly or
indirectly affected by the qualifying project;
(2) Identify environmental effects expected to occur as a result of
the project;
(3) Identify the potential effects of construction, operation
(including maintenance and malfunctions), and termination of the
project, as well as potential cumulative effects resulting from
existing or reasonably foreseeable projects;
(4) Identify measures proposed to enhance the environment or to
avoid, mitigate, or compensate for potential adverse effects of the
project; and
(5) Provide:
(i) A list of publications, reports, and other literature or
communications, including agency communications, that were cited or
relied upon to prepare each report; and
(ii) The name and title of the person contacted in any
communication, their affiliations, and telephone number or email
address.
(e) Federal responsibility. The resource reports prepared by the
project proponent under this section do not supplant the requirements
under existing environmental laws related to the information required
for Federal authorization or consultation processes. The agencies shall
independently evaluate the information submitted and shall be
responsible for the accuracy, scope, and contents of all Federal
authorization decision documents and related environmental reviews.
(f) Resource Report 1--General project description. This report
will describe facilities associated with the project, special
construction and operation procedures, construction timetables, future
plans for related construction, compliance with regulations and codes,
and permits that must be obtained. Resource Report 1 must:
(1) Describe and provide location maps of all facilities to be
constructed, modified, abandoned, replaced, or removed, including
related construction and operational support activities and areas such
as maintenance bases, staging areas, communications towers, power
lines, and new access roads (roads to be built or modified), as well as
any existing infrastructure proposed to be used for the project (i.e.,
existing substations, connections to existing transmission, existing
access roads);
(2) Describe specific generation resources that are known or
reasonably foreseen to be developed or interconnected as a result of
the project, if any;
(3) Identify other companies that may construct facilities related
to the project (i.e., fiber optic cables) and where those facilities
would be located;
(4) Provide the following information for facilities described
under paragraphs (f)(1) through (3) of this section:
(i) A brief description of each facility, including, as
appropriate, ownership, land requirements, megawatt size, construction
status, and an update of the latest status of Federal, State, and local
permits and approvals;
(ii) Current topographic maps showing the location of the
facilities;
(iii) Any communications with the appropriate State Historic
Preservation and Officers (SHPOs) and Tribal Historic Preservation
Officers (THPOs) regarding cultural and historic resources in the
project area;
(iv) Correspondence with the U.S. Fish and Wildlife Service (USFWS)
(and National Marine Fisheries Service (NMFS), if appropriate)
regarding potential impacts of the proposed facility on federally
listed threatened and endangered species and their designated critical
habitats; and
(v) An indication of whether the project proponent will need to
submit a Coastal Zone Management Act (CZMA) Federal consistency
certification to State coastal management program(s) for the proposed
transmission project, as required by the National Oceanic and
Atmospheric Administration's (NOAA) Federal consistency regulations at
15 CFR part 930, subpart D; and
(vi) An indication of whether the project proponent will need to
obtain a water quality certification under section 401 of the Clean
Water Act (CWA) (33 U.S.C. 1341) for the proposed project.
(5) Identify and describe the following if the project is
considering abandonment of certain resources:
(i) Facilities to be abandoned, and state how they would be
abandoned, how the site would be restored, who would own the site or
right-of-way after abandonment, and who would be responsible for any
facilities abandoned in place; and
(ii) When the right-of-way or the easement would be abandoned,
identify
[[Page 55848]]
whether landowners were or will be given the opportunity to request
that the facilities on their property, including foundations and below
ground components, be removed, identify any landowners whose
preferences the company does not intend to honor, and provide the
reasons why the company does not intend to honor them;
(6) Describe, by milepost, proposed construction and restoration
methods to be used in areas of rugged topography, residential areas,
active croplands, sites where the project would be located parallel to
and under roads, and sites where explosives may be used;
(7) Unless provided in response to Resource Report 5 (see paragraph
(j) of this section), describe estimated workforce requirements,
including the number of construction spreads, average workforce
requirements for each construction spread, estimated duration of
construction from initial clearing to final restoration, and number of
personnel to be hired to operate the proposed project;
(8) Describe reasonably foreseeable plans for future expansion of
facilities, including additional land requirements and the
compatibility of those plans with the current proposal;
(9) To the extent they are available and in accordance with the
project-specific schedule described by Sec. 900.7, describe all
authorizations required to complete the proposed action and the status
of applications for such authorizations and identify environmental
mitigation requirements specified in any permit or proposed in any
permit application to the extent not specified elsewhere in this
resource report or another;
(10) Provide the names and mailing addresses of all affected
landowners to certify that all affected landowners have been notified;
(11) Summarize any relevant potential avoidance, minimization, and
conservation measures, such as proposed compensatory mitigation (onsite
and offsite), developed through the use of a landscape mitigation
approach or, where available, landscape mitigation strategies or plans,
and anticipated by the project proponent to reduce the potential
impacts of the qualifying project to resources warranting or requiring
mitigation; and
(12) Describe how the project will reduce capacity constraints and
congestion on the transmission system, meet unmet demand, or connect
generation resources (including the expected type of generation, if
known) to load, as appropriate.
(g) Resource Report 2--Water use and quality. This report must
describe water resources, water use, and water quality as well as
potential impacts associated with the project on these resources. It
must also provide data sufficient to determine the expected impact of
the project and the effectiveness of mitigation, enhancement, or
protective measures. Project proponents should also describe the
measures taken to avoid and minimize adverse effects to such water
resources, where appropriate. Resource Report 2 must:
(1) Identify and describe waterbodies, including perennial
waterbodies, intermittent streams, and ephemeral waterbodies, as well
as municipal water supply or watershed areas, specially designated
surface water protection areas and sensitive waterbodies, floodplains,
and wetlands that would be crossed by the project;
(2) For each waterbody, floodplain, or wetland crossing identified
under paragraph (g)(1) of this section, identify the approximate width,
State water quality classifications, any known potential pollutants
present in the water or sediments, and any potable water intake sources
within three miles downstream;
(3) Describe typical staging area requirements at waterbody,
floodplain, and wetland crossings and identify and describe waterbodies
and wetlands where staging areas are likely to be more extensive to
avoid, minimize, or compensate for any potential impacts to water
resources in those staging areas;
(4) Provide two copies of floodplain and National Wetland Inventory
(NWI) maps or, if not available, appropriate State wetland maps clearly
showing the proposed route and mileposts;
(5) For each wetland crossing, identify the milepost, the wetland
classification specified by the USFWS, and the length of the crossing,
and describe, by milepost, wetland crossings as determined by field
delineations using the current Federal methodology;
(6) For each floodplain crossing, identify the mileposts, acres of
floodplains affected, flood elevation, and basis for determining that
elevation;
(7) Discuss proposed avoidance and mitigation measures to reduce
the potential for adverse impacts to surface water, wetlands,
floodplains, or groundwater quality, as well as any potential
compensation that will be provided for remaining unavoidable impacts;
(8) Identify the location of known public and private groundwater
supply wells or springs within 150 feet of proposed construction areas;
(9) Identify locations of EPA or State-designated principal-source
aquifers and wellhead protection areas crossed by the proposed
facilities; and
(10) Discuss the results of any coordination with relevant Federal
entities or non-Federal entities related to permitting and include any
written correspondence that resulted from the coordination.
(h) Resource Report 3--Fish, wildlife, and vegetation. This report
must describe aquatic life, wildlife, and vegetation in the proposed
project area; expected impacts on these resources including potential
effects on biodiversity; and proposed mitigation, enhancement,
avoidance, or protection measures. Surveys may be required to determine
specific areas of significant habitats or communities of species of
special concern to Federal, Tribe, State, or local agencies. If species
surveys are impractical, there must be field surveys to determine the
presence of suitable habitat unless the entire project area is suitable
habitat. Project proponents should describe proposed measures to avoid
and minimize incidental take of federally protected species, including
eagles and migratory birds. Resource Report 3 must:
(1) Describe commercial and recreational warmwater, coldwater, and
saltwater fisheries in the affected area and associated significant
habitats such as spawning or rearing areas and estuaries;
(2) Describe terrestrial habitats, including wetlands, typical
wildlife habitats, and rare, unique, or otherwise significant habitats
that might be affected by the proposed project;
(3) Describe typical species that have commercial, recreational, or
aesthetic value and that may be affected by the proposed project;
(4) Describe and provide the acreage of vegetation cover types that
would be affected, including unique ecosystems or communities such as
remnant prairie or old-growth forest, or significant individual plants,
such as old-growth specimen trees;
(5) Describe the impact of construction and operation on aquatic
and terrestrial species and their habitats, including the possibility
of a major alteration to ecosystems or biodiversity, and any potential
impact on State-listed endangered or threatened species;
(6) Describe the impact of maintenance, clearing, and treatment of
the project area on fish, wildlife, and vegetation;
(7) Identify all federally listed or proposed endangered or
threatened species and critical habitats that potentially occur in the
project area;
(8) Identify all known and potential bald and golden eagle nesting
and
[[Page 55849]]
roosting sites, migratory bird flyways, and any sites important to
migratory bird breeding, feeding, and sheltering within 10 miles of the
proposed project area. This should coincide with the USFWS's most
current maps at the time this resource report is submitted;
(9) Discuss the results of any discussions conducted by the
proponent to date with relevant Federal entities or relevant non-
Federal entities related to fish, wildlife, and vegetation resources,
and include any written correspondence that resulted from the
discussions;
(10) Include the results of any required surveys unless seasonal
considerations make this impractical, in which case such seasonal
considerations should be specified in the report;
(11) If present, identify all federally listed essential fish
habitat (EFH) that potentially occurs in the project area and provide:
(i) Information on all EFH, as identified by the pertinent Federal
fishery management plans, which may be adversely affected by the
project;
(ii) The results of discussions with NMFS; and
(iii) Any resulting EFH assessments;
(12) Describe anticipated site-specific mitigation measures to
minimize impacts on fisheries, wildlife (including migration
corridors), grazing, and vegetation; and
(13) Include copies of any correspondence not provided pursuant to
paragraph (h)(9) or (10) of this section containing recommendations
from appropriate Federal and State fish and wildlife agencies to avoid
or limit impact on wildlife, fisheries, and vegetation, and the project
proponent's response to those recommendations.
(i) Resource Report 4--Cultural resources. This report must
describe potential impacts to cultural resources, including but not
limited to preliminary identification of the project's area of
potential effects, of cultural resources within that area that may be
eligible for listing on the National Register of Historic Places, and
of potential adverse effects to those cultural resources. To the extent
possible, the project proponent should provide initial recommendations
for avoidance and minimization measures to address potential adverse
effects. The information provided in Resource Report 4 will contribute
to the satisfaction of DOE's and relevant Federal entities' obligations
under section 106 of the NHPA.
(1) Resource Report 4 must contain:
(i) A summary of initial known cultural and historic resources in
the affected environment including but not limited to those listed or
eligible for listing on the National Register of Historic Places;
(ii) A description of potential adverse effects to the resources
identified in paragraph (i)(1)(i) of this section;
(iii) Documentation of the project proponent's initial
communications and engagement, including preliminary outreach and
coordination, with Indian Tribes, indigenous peoples, THPOs, SHPOs,
communities of interest, and other entities having knowledge of,
interest regarding, or an understanding about the resources identified
in paragraph (i)(1)(i) of this section and any written comments from
SHPOs, THPOs, other tribal historic preservation offices or
governments, or others, as appropriate and available;
(iv) Recommended avoidance and minimization measures to address
potential effects;
(v) Any initial and preliminary existing surveys or listing of
cultural and historic resources in the affected environment; and
(vi) Recommendations for any additional surveys needed.
(2) If the project proponent chooses to undertake further
preliminary surveys identified in paragraph (i)(1)(vi) of this section,
the associated preliminary survey reports should be submitted as part
of this report; if landowners deny access to private property and
certain areas are not surveyed, the unsurveyed area must be identified
by mileposts.
(3) The project proponent must request confidential treatment for
all material filed with DOE containing location, character, and
ownership information about cultural resources in accordance with Sec.
900.4(h).
(j) Resource Report 5--Socioeconomics. This report must identify
and quantify the impacts of constructing and operating the proposed
project on the demographics and economics of communities in the project
area, including minority and underrepresented communities. Resource
Report 5 must:
(1) Describe the socioeconomic resources that may be affected in
the proposed project area;
(2) Describe the positive and adverse socioeconomic impacts of the
project;
(3) Evaluate the impact of any substantial migration of people into
the proposed project area on governmental facilities and services and
describe plans to reduce the impact on the local infrastructure;
(4) Describe on-site labor requirements during construction and
operation, including projections of the number of construction
personnel who currently reside within the impact area, who would
commute daily to the site from outside the impact area, or who would
relocate temporarily within the impact area;
(5) Determine whether existing affordable housing within the impact
area is sufficient to meet the needs of the additional population; and
(6) Describe the number and types of residences and businesses that
would be displaced by the project, procedures to be used to acquire
these properties, and types and amounts of relocation assistance
payments.
(k) Resource Report 6--Geological resources. This report must
describe geological resources and hazards in the project area that
might be directly or indirectly affected by the proposed action or that
could place the proposed facilities at risk, the potential effects of
those hazards on the facility, and methods proposed to reduce the
effects or risks. Resource Report 6 must:
(1) Describe mineral resources that are currently or potentially
exploitable, if relevant;
(2) Describe, by milepost, existing and potential geological
hazards and areas of nonroutine geotechnical concern, such as high
seismicity areas, active faults, and areas susceptible to soil
liquefaction; planned, active, and abandoned mines; karst terrain
(including significant caves protected under the Federal Cave Resources
Protection Act (Pub. L. 100-691, as amended) (16 U.S.C. 4301 et seq.));
and areas of potential ground failure, such as subsidence, slumping,
and land sliding;
(3) Discuss the risks posed to the project from each hazard
identified in paragraph (k)(2) of this section;
(4) Describe how the project would be located or designed to avoid
or minimize adverse effects to the resources or risk to itself,
including geotechnical investigations and monitoring that would be
conducted before, during, and after construction;
(5) Discuss the potential for blasting to affect structures and the
measures to be taken to remedy such effects; and
(6) Specify methods to be used to prevent project-induced
contamination from mines or from mine tailings along the right-of-way
and whether the project would hinder mine reclamation or expansion
efforts.
(l) Resource Report 7--Soil resources. This report must describe
the soils that would be affected by the proposed project, the effect on
those soils, and measures proposed to avoid, minimize, or mitigate
impact. Resource Report 7 must:
(1) List, by milepost, the soil associations that would be crossed
and describe the erosion potential, fertility,
[[Page 55850]]
and drainage characteristics of each association;
(2) If a site is larger than five acres:
(i) List the soil series within the property and the percentage of
the property comprised of each series;
(ii) List the percentage of each series which would be permanently
disturbed;
(iii) Describe the characteristics of each soil series; and
(iv) Indicate which are classified as prime or unique farmland by
the USDA, Natural Resources Conservation Service;
(3) Identify, potential impact from: soil erosion due to water,
wind, or loss of vegetation; soil compaction and damage to soil
structure resulting from movement of construction vehicles; wet soils
and soils with poor drainage that are especially prone to structural
damage; damage to drainage tile systems due to movement of construction
vehicles and trenching activities; and interference with the operation
of agricultural equipment due to the probability of large stones or
blasted rock occurring on or near the surface as a result of
construction;
(4) Identify, by milepost, cropland and residential areas where
loss of soil fertility due to trenching and backfilling could occur;
and
(5) Describe proposed avoidance, minimization, or mitigation
measures to reduce the potential for adverse impact to soils or
agricultural productivity.
(m) Resource Report 8--Land use, recreation, and aesthetics. This
report must describe the existing uses of land on, and within various
distances (as specified in paragraphs (m)(1) through (16) of this
section), the proposed project and changes to those land uses and
impacts to inhabitants and users that would occur if the project is
approved. The report must discuss proposed mitigation measures,
including protection and enhancement of existing land use. Resource
Report 8 must:
(1) Describe the width and acreage requirements of all construction
and permanent rights-of-way required for project construction,
operation, and maintenance;
(2) List locations where the proposed right-of-way would be
adjacent to existing rights-of-way of any kind, and where lines in the
proposed project may be co-located within existing rights-of-way for
other facilities (e.g., for roads, other utility) and any required
utility coordination, permits, and fees that would be associated as a
result;
(3) Identify, preferably by diagrams, existing rights-of-way that
will be used for a portion of the construction or operational right-of-
way, the overlap and how much additional width will be required;
(4) Identify the total amount of land to be purchased or leased for
each project facility, the amount of land that would be disturbed for
construction, operation, and maintenance of the facility, and the use
of the remaining land not required for project operation and
maintenance, if any;
(5) Identify the size of typical staging areas and expanded work
areas, such as those at railroad, road, and waterbody crossings, and
the size and location of all construction materials storage yards and
access roads;
(6) Identify, by milepost, the existing use of lands crossed by the
proposed transmission facility, or on or adjacent to each proposed
project facility;
(7) Describe planned development on land crossed by or within 0.25
mile of proposed facilities, the time frame (if available) for such
development, and proposed coordination to minimize impacts on land use.
Planned development means development that is included in a master plan
or is on file with the local planning board or the county;
(8) Identify, by milepost and length of crossing, the area of
direct effect of each proposed facility and operational site on lands
owned or controlled by Federal or State agencies with special
designations not otherwise mentioned in other resource reports, as well
as lands controlled by private preservation groups (examples include
sugar maple stands, orchards and nurseries, landfills, hazardous waste
sites, nature preserves, game management areas, remnant prairie, old-
growth forest, national or State forests, parks, designated natural,
recreational or scenic areas, registered natural landmarks, or areas
managed by Federal entities under existing land use plans as Visual
Resource Management Class I or Class II areas), and identify if any of
those areas are located within 0.25 mile of any proposed facility;
(9) Describe Tribal resources, including Indian Tribes, Tribal
lands, and interests, including established treaty rights, that may be
affected by the project; and
(i) Identify Indian Tribes and indigenous communities that may
attach traditional cultural or religious significance to properties,
whether on or off of any federally recognized Indian reservation; and
(ii) Submit, consistent with Sec. 900.4(h), information made
available under this paragraph (m)(9), including specific site or
property locations, the disclosure of which will create a risk of harm,
theft, or destruction of archaeological or Native American cultural
resources or to the site at which the resources are located, or which
would violate any Federal law, including section 9 of the
Archaeological Resources Protection Act of 1979 (Pub. L. 96-95, as
amended) (16 U.S.C. 470hh) and section 3 of the NHPA (54 U.S.C.
307103);
(10) Describe any areas crossed by or within 0.25 mile of the
proposed transmission project facilities that are included in, or are
designated for study for inclusion in if available: the National Wild
and Scenic Rivers System (Pub. L. 90-542) (16 U.S.C. 1271 et seq.), the
National Wildlife Refuge system (16 U.S.C. 668dd 668ee), the National
Wilderness Preservation System (16 U.S.C. 1131), the National Trails
System (16 U.S.C. 1241), the National Park System (54 U.S.C. 100101),
National Historic Landmarks (NHLs), National Natural Landmarks (NNLs),
Land and Water Conservation Fund (LWCF) acquired Federal lands, LWCF
State Assistance Program sites and the Federal Lands to Parks (FLP)
program lands, or a wilderness area designated under the Wilderness Act
(16 U.S.C. 1132); or the National Marine Sanctuary System, including
national marine sanctuaries (16 U.S.C. 1431 et seq.) and Marine
National Monuments as designated under authority by the Antiquities Act
(54 U.S.C. 320301-320303) or by Congress;
(11) Indicate whether the project proponent will need to submit a
CZMA Federal consistency certification to State coastal management
program(s) for the proposed transmission project, as required by NOAA's
Federal consistency regulations at 15 CFR part 930, subpart D;
(12) Describe the impact the project will have on present uses of
the affected areas as identified in paragraphs (m)(1) through (11) of
this section, including commercial uses, mineral resources,
recreational areas, public health and safety, Federal scientific
survey, research and observation activities, protected resources and
habitats, and the aesthetic value of the land and its features and
describe any temporary or permanent restrictions on land use resulting
from the project;
(13) Describe mitigation measures intended for all special use
areas identified under this paragraph (m);
(14) Provide a detailed operations and maintenance plan for
vegetation management;
(15) Describe the visual characteristics of the lands and waters
affected by the project. Components of this description include a
description of how the transmission line project facilities will impact
the visual character of project right-of-way and surrounding vicinity,
[[Page 55851]]
and measures proposed to lessen these impacts. Project proponents are
encouraged to supplement the text description with visual aids; and
(16) Identify, by milepost, all residences and buildings within 200
feet of the edge of the proposed transmission line construction right-
of-way and the distance of the residence or building from the edge of
the right-of-way and provide survey drawings or alignment sheets to
illustrate the location of the transmission facilities in relation to
the buildings.
(i) Buildings. The report must list all dwellings and related
structures, commercial structures, industrial structures, places of
worship, hospitals, nursing homes, schools, or other structures
normally inhabited by humans or intended to be inhabited by humans on a
regular basis within a 0.5 mile-wide corridor centered on the proposed
transmission line alignment and provide a general description of each
habitable structure and its distance from the centerline of the
proposed project. In cities, towns, or rural subdivisions, houses can
be identified in groups, and the report must provide the number of
habitable structures in each group and list the distance from the
centerline to the closest habitable structure in the group.
(ii) Electronic installations. The report must list all known
commercial AM radio transmitters located within 10,000 feet of the
centerline of the proposed project and all known FM radio transmitters,
microwave relay stations, or other similar electronic installations
located within 2,000 feet of the centerline of the proposed project;
provide a general description of each installation and its distance
from the centerline of the projects; and locate all installations on a
routing map.
(iii) Airstrips. list all known private airstrips within 10,000
feet of the centerline of the project. List all airports registered
with the Federal Aviation Administration (FAA) with at least one runway
more than 3,200 feet in length that are located within 20,000 feet of
the centerline of the proposed project. Indicate whether any
transmission structures will exceed a 100:1 horizontal slope (one foot
in height for each 100 feet in distance) from the closest point of the
closest runway. List all airports registered with the FAA having no
runway more than 3,200 feet in length that are located within 10,000
feet of the centerline of the proposed project. Indicate whether any
transmission structures will exceed a 50:1 horizontal slope from the
closest point of the closest runway. List all heliports located within
5,000 feet of the centerline of the proposed project. Indicate whether
any transmission structures will exceed a 25:1 horizontal slope from
the closest point of the closest landing and takeoff area of the
heliport. Provide a general description of each private airstrip,
registered airport, and registered heliport, and state the distance of
each from the centerline of the proposed transmission line. Locate all
airstrips, airports, and heliports on a routing map.
(n) Resource Report 9--Communities of Interest. This report must
summarize known information about the presence of communities of
interest that could be affected by the qualifying project. The resource
report must identify and describe the potential impacts of
constructing, operating, and maintaining the project on communities of
interest; and describe any proposed measures intended to avoid,
minimize, or mitigate such impacts or community concerns. The report
must include a discussion of any disproportionate and/or adverse human
health or environmental impacts to communities of interest.
(o) Resource Report 10--Air quality and noise effects. This report
must identify the effects of the project on the existing air quality
and noise environment and describe proposed measures to mitigate the
effects. Resource Report 10 must:
(1) Describe the existing air quality in the project area, indicate
if any project facilities are located within a designated nonattainment
or maintenance area under the Clean Air Act (42 U.S.C. 7401 et seq.),
and provide the distance from the project facilities to any Class I
area in the project area;
(2) Estimate emissions from the proposed project and the
corresponding impacts on air quality and the environment;
(i) Estimate the reasonably foreseeable emissions from
construction, operation, and maintenance of the project facilities
(such as emissions from tailpipes, equipment, fugitive dust, open
burning, and substations) expressed in tons per year; include
supporting calculations, emissions factors, fuel consumption rates, and
annual hours of operation;
(ii) Estimate the reasonably foreseeable change in greenhouse gas
emissions from the existing, proposed, and reasonably foreseeable
generation resources identified in Resource Report 1 (see paragraph (f)
of this section) that may connect to the project or interconnect as a
result of the line, if any, as well as any other modeled air emissions
impacts;
(iii) For each designated nonattainment or maintenance area,
provide a comparison of the emissions from construction, operation, and
maintenance of the project facilities with the applicable General
Conformity thresholds (40 CFR part 93);
(iv) Identify the corresponding impacts on communities and the
environment in the project area from the estimated emissions;
(v) Describe any proposed mitigation measures to control emissions
identified under this section; and
(vi) Estimate the reasonably foreseeable effect of the project on
indirect emissions;
(3) Describe existing noise levels at noise-sensitive areas, such
as schools, hospitals, or residences, including any areas covered by
relevant State or local noise ordinances, and consider noise effects in
sensitive wildlife habitat for federally threatened or endangered
species, if appropriate;
(i) Report existing noise levels as the a-weighted decibel (dBA)
Leq (day), Leq (night), and Ldn (day-night sound level) and include the
basis for the data or estimates;
(ii) Include a plot plan that identifies the locations and duration
of noise measurements, the time of day, weather conditions, wind speed
and direction, engine load, and other noise sources present during each
measurement; and
(iii) Identify any State or local noise regulations that may be
applicable to the project facilities;
(4) Estimate the impact of the proposed project on the noise
environment;
(i) Provide a quantitative estimate of the impact of transmission
line operation on noise levels at the edge of the proposed right-of-
way, including corona, insulator, and Aeolian noise; and for proposed
substations and appurtenant facilities, provide a quantitative estimate
of the impact of operations on noise levels at nearby noise-sensitive
areas, including discrete tones; the operational noise estimates must
demonstrate that the proposed project will comply with applicable State
and local noise regulations and that noise attributable to any proposed
substation or appurtenant facility does not exceed a day-night sound
level (Ldn) of 55 dBA at any pre-existing noise-sensitive area;
(A) Include step-by-step supporting calculations or identify the
computer program used to model the noise levels, the input and raw
output data and all assumptions made when running the model, far-field
sound level data for maximum facility operation, and the source of the
data;
(B) Include sound pressure levels for project facilities, dynamic
insertion loss for structures, and sound attenuation
[[Page 55852]]
from the project facilities to the edge of the right-of-way or to
nearby noise-sensitive areas (as applicable);
(C) Include far-field sound level data measured from similar
project facilities in service elsewhere, when available, may be
substituted for manufacturers' far-field sound level data; and
(D) Describe wildlife-specific noise thresholds, like those
specific to avian species that may be relevant in significant wildlife
areas, if appropriate; and
(ii) Describe the impact of proposed construction activities,
including any nighttime construction, on the noise environment;
estimate the impact of any horizontal directional drilling, pile
driving, or blasting on noise levels at nearby noise-sensitive areas
and include supporting assumptions and calculations; and
(5) Describe measures, and manufacturer's specifications for
equipment, proposed to mitigate impact to air and noise quality,
including emission control systems, installation of filters, mufflers,
or insulation of piping and buildings, and orientation of equipment
away from noise-sensitive areas.
(p) Resource Report 11--Alternatives. This report must describe
alternatives identified by the proponent during its initial analysis,
which may inform the relevant Federal entities' subsequent analysis of
alternatives. The report should address alternative routes and
alternative design methods and compare the potential environmental
impacts and potential impacts to cultural and historic resources of
such alternatives to those of the proposed project. This report must
also include all the alternatives identified by the proponent,
including those the proponent chose not to examine or not examine in
greater detail. The proponent should provide an explanation for the
proponent's choices regarding the identification and examination of
alternatives. The discussion must demonstrate whether and how
environmental benefits and costs were weighed against economic benefits
and costs to the public, and technological and procedural constraints
in developing the alternatives, as well as an explanation of the costs
to construct, operate, and maintain each alternative and the potential
for each alternative to meet project deadlines and the potential
environmental impacts of each alternative. Resource Report 11 must:
(1) Discuss the ``no action'' alternative and the potential for
accomplishing the proponent's proposed objectives using alternative
means;
(2) Provide an analysis of the potential relative environmental
benefits and costs for each alternative; and
(3) Describe alternative routes or locations considered for the
proposed transmission line and related facilities during the initial
screening for the project and include the analysis in the thirteen
environmental reports.
(i) Identify all the alternative routes the project proponent
considered in the initial screening for the project but not recommended
for further study and describe the environmental characteristics of
each route or site and include the reasons why the proponent chose not
to examine such alternatives. The report must identify the location of
such alternatives on maps of sufficient scale to depict their location
and relationship to the proposed action, and the relationship of the
proposed transmission line to existing rights-of-way.
(ii) For alternative routes or locations recommended for more in-
depth consideration, the report must describe the environmental
characteristics of each route or site the proponent chose not to
examine such alternatives in greater detail. The report must provide
comparative tables showing the differences in environmental
characteristics for the alternative and proposed action. The location
of any alternatives in this paragraph (p)(3)(ii) shall be provided on
maps.
(q) Resource Report 12--Reliability, resilience, and safety. This
report must address the potential hazard to the public from failure of
facility components resulting from accidents, intentional destructive
acts, or natural catastrophes; how these events would affect
reliability; and what procedures and design features have been used to
reduce potential hazards. This report should account for any changes to
the likelihood of relevant natural catastrophes resulting from climate
change. This report must also address any benefits to reliability
likely to result from the project. Resource Report 12 must:
(1) Describe measures proposed to protect the public from failure
of the proposed facilities (including coordination with local
agencies);
(2) Discuss hazards, the environmental impact, and service
interruptions that could reasonably ensue from failure of the proposed
facilities;
(3) Discuss design and operational measures to avoid or reduce
risk;
(4) Discuss contingency plans for maintaining service or reducing
downtime;
(5) Describe measures used to exclude the public from hazardous
areas, measures used to minimize problems arising from malfunctions and
accidents (with estimates of probability of occurrence) and identify
standard procedures for protecting services and public safety during
maintenance and breakdowns; and
(6) Describe improvements to reliability likely to result from the
project.
(r) Resource Report 13--Tribal interests. This report will identify
the Indian Tribes, indigenous communities, and their respective
interests, if any, that may be affected by the construction, operation,
and maintenance of the proposed transmission facilities, including
those Indian Tribes and indigenous communities that may attach
religious and cultural significance to historic properties within the
right-of-way or in the project area as well as any underlying Federal
land management agencies. To the extent Indian Tribes are willing to
communicate and share resource information, this report should discuss
the potential impacts of project construction, operation, and
maintenance on Indian Tribes and Tribal interests, including impacts
related to enumerated resources and areas identified in the resource
reports listed in this section (for instance, water rights, access to
property, wildlife and ecological resources, etc.), and set forth
available information on traditional cultural and religious resources
that could be affected by the proposed project. This resource report
should acknowledge existing relationships between adjacent and
underlying Federal land management agencies and the local Tribes and
engage the Federal land manager early to leverage existing
relationships. Specific site or location information, disclosure of
which may create a risk of harm, theft, or destruction, or otherwise
violate Federal law (see, e.g., 16 U.S.C. 470 et seq., 43 CFR 7.18, 36
CFR 800.11(c)), should be submitted separately. The project proponent
must request confidential treatment for all material filed with DOE
containing location, character, and ownership information about Tribal
resources in accordance with Sec. 900.4(h).
(s) Docketing of resource reports. DOE shall include in the
consolidated administrative docket, as detailed in Sec. 900.10, the
resource reports developed under this section, and any revisions to
those reports.
[[Page 55853]]
Sec. 900.7 Standard and project-specific schedules.
(a) DOE shall publish, and update from time to time, a standard
schedule that identifies the steps generally needed to complete
decisions on all Federal environmental reviews and authorizations for a
qualifying project. The standard schedule will include recommended
timing for each step so as to allow final decisions on all Federal
authorizations within two years of the publication of a notice of
intent to prepare an environmental impact statement under Sec. 900.9
or as soon as practicable thereafter, considering the requirements of
relevant Federal laws, and the need for robust analysis of project
impacts and early and meaningful consultation with potentially affected
Indian Tribes and public engagement with potentially-affected
stakeholders and communities of interest.
(b) During the Integrated Interagency Pre-Application (IIP)
Process, DOE, in coordination with any NEPA co-lead agency and relevant
Federal entities, shall prepare a project-specific schedule that is
informed by the standard schedule prepared under paragraph (a) of this
section and that establishes prompt and binding intermediate milestones
and ultimate deadlines for the review of, and Federal authorization
decisions relating to, a qualifying project, accounting for relevant
statutory requirements, the proposed route, reasonable alternative
routes, if any, the need to assess and address any impacts to military
testing, training, and operations, and other factors particular to the
specific qualifying project, including the need for early and
meaningful consultation with potentially affected Indian Tribes and
engagement with stakeholders. DOE may revise the project-specific
schedule as needed to satisfy applicable statutory requirements,
meaningfully engage with stakeholders, and to account for delays caused
by the actions or inactions of the project proponent.
Sec. 900.8 IIP Process review meeting.
(a) An Integrated Interagency Pre-Application (IIP) Process review
meeting is required for each qualifying project utilizing the IIP
Process and may only be held after the project proponent submits a
review meeting request to DOE. The project proponent may submit the
request at any time following submission of the resource reports
required under Sec. 900.6. The review meeting request must include:
(1) A summary table of changes made to the qualifying project since
the IIP Process initial meeting, including potential environmental and
community benefits from improved siting or design;
(2) Maps of potential proposed routes within study corridors,
including the line, substations and other infrastructure, which include
at least as much detail as required for the initial meeting initiation
request described by Sec. 900.5 and as modified in response to early
stakeholder input and outreach and feedback from relevant Federal
entities and relevant non-Federal entities as documented in the final
initial meeting summary described by Sec. 900.5;
(3) If known, a schedule for completing any upcoming field resource
surveys, as appropriate;
(4) A conceptual plan for implementation and monitoring of
mitigation measures, including avoidance, minimization, and
conservation measures, such as compensatory mitigation (offsite and
onsite), developed through the use of a landscape mitigation approach
or, where available, landscape mitigation strategies or plans to reduce
the potential impact of the qualifying project to resources warranting
or requiring mitigation;
(5) An updated public engagement plan described in Sec.
900.5(d)(2), reflecting actions undertaken since the project proponent
submitted the initiation request and input received from relevant
Federal entities and relevant non-Federal entities;
(6) Dates that the project proponent has already filed applications
or requests for Federal authorizations for the qualifying project, if
any, as well as estimated dates for any remaining such applications or
requests or any revisions to applications or requests that have already
been filed; and
(7) Estimated dates that the project proponent will file requests
for authorizations and consultations with relevant non-Federal
entities.
(b) Not later than 15 calendar days after the date that DOE
receives the review meeting request, DOE shall provide relevant Federal
entities and relevant non-Federal entities with materials included in
the request and resource reports submitted under Sec. 900.6 via
electronic means.
(c) Not later than 60 calendar days after the date that DOE
receives the review meeting request, DOE shall notify the project
proponent and all relevant Federal entities and relevant non-Federal
entities that:
(1) The meeting request meets the requirements of this section,
including that the initial resource reports are sufficiently detailed;
or
(2) The meeting request does not meet the requirements of this
section. DOE will provide the reasons for that finding and a
description of how the project proponent may, if applicable, address
any deficiencies in the meeting request or resource reports so that DOE
may reconsider its determination.
(d) Not later than 30 calendar days after the date that DOE
provides notice to the project proponent under paragraph (c) of this
section that the review meeting request has been accepted, DOE shall
convene the review meeting with the project proponent and the relevant
Federal entities. All relevant non-Federal entities participating in
the IIP Process shall also be invited.
(e) During the IIP Process review meeting:
(1) Relevant Federal entities shall identify any remaining issues
of concern, identified information gaps or data needs, and potential
issues or conflicts that could impact the time it will take the
relevant Federal entities to process applications for Federal
authorizations for the qualifying project;
(2) Relevant non-Federal entities may identify remaining issues of
concern, information needs, and potential issues or conflicts for the
project;
(3) The participants shall discuss the project proponent's updates
to the siting process to date, including stakeholder outreach
activities, resultant stakeholder input, and project proponent response
to stakeholder input;
(4) Based on information provided by the project proponent to date,
the relevant Federal entities shall discuss key issues of concern and
potential mitigation measures identified for the qualifying project;
(5) Led by DOE, all relevant Federal entities shall discuss
statutory and regulatory standards that must be met to make decisions
for Federal authorizations required for the qualifying project;
(6) Led by DOE, all relevant Federal entities shall describe the
process for, and estimated time to complete, required Federal
authorizations and, where possible, the anticipated cost (e.g.,
processing and monitoring fees and land use fees);
(7) Led by DOE, all relevant Federal entities shall describe their
expectations for a complete application for a Federal authorization for
the qualifying project;
(8) Led by DOE, all relevant Federal entities shall identify
necessary updates to the resource reports that must be made before
conclusion of the IIP Process, or, as necessary, following conclusion
of the IIP Process; and
[[Page 55854]]
(9) DOE shall present the proposed project-specific schedule
developed under Sec. 900.7.
(f) Not later than 15 calendar days after the review meeting, DOE
shall:
(1) Prepare a draft review meeting summary that includes a summary
of the meeting discussion, a description of key issues and information
gaps identified during the meeting, and any requests for more
information from relevant Federal entities and relevant non-Federal
entities; and
(2) Convey the draft summary to the project proponent, relevant
Federal entities, and any non-Federal entities that participated in the
meeting.
(g) The project proponent and entities that received the draft
review meeting summary under paragraph (f) of this section will have 15
calendar days following receipt of the draft to review the draft and
provide corrections to DOE.
(h) Not later than 15 calendar days following the close of the 15-
day review period under paragraph (g) of this section, DOE shall:
(1) Prepare a final review meeting summary incorporating received
corrections, as appropriate;
(2) Add the final summary to the consolidated administrative docket
described by Sec. 900.10;
(3) Provide an electronic copy of the summary to the relevant
Federal entities, relevant non-Federal entities, and the project
proponent; and
(4) Determine whether the project proponent has developed the scope
of its proposed project and alternatives sufficiently for DOE to
determine that there exists an undertaking for purposes of section 106
of the NHPA. If DOE so determines, then DOE shall authorize project
proponents to initiate consultation with SHPOs, THPOs, and others
consistent with 36 CFR 800.2(c)(4).
(i) After the review meeting and before the IIP Process close-out
meeting described by Sec. 900.9 the project proponent shall revise
resource reports submitted under Sec. 900.6 based on feedback from
relevant Federal entities and relevant non-Federal entities received
during the review meeting.
Sec. 900.9 IIP Process close-out meeting.
(a) An Integrated Interagency Pre-Application (IIP) Process close-
out meeting concludes the IIP Process for a qualifying project and may
only be held after the project proponent submits a close-out meeting
request to DOE. The close-out meeting request shall include:
(1) A summary table of changes made to the qualifying project
during the IIP Process, including potential environmental and community
benefits from improved siting or design;
(2) A description of all changes made to the qualifying project
since the review meeting, including a summary of changes made in
response to the concerns raised during the review meeting;
(3) A final public engagement plan, as described in Sec.
900.5(d)(2);
(4) Requests for Federal authorizations for the qualifying project;
and
(5) An updated estimated time of filing requests for all other
authorizations and consultations with non-Federal entities.
(b) Not later than 15 calendar days after the date that DOE
receives the close-out meeting request, DOE shall provide relevant
Federal entities and relevant non-Federal entities with materials
included in the request and any updated resource reports submitted
under Sec. 900.6 via electronic means.
(c) Not later than 60 calendar days after the date that DOE
receives the review meeting request, DOE shall notify the project
proponent and all relevant Federal entities and relevant non-Federal
entities that:
(1) The meeting request meets the requirements of this section,
including that the initial resource reports are sufficiently detailed;
or
(2) The meeting request does not meet the requirements of this
section. DOE will provide the reasons for that finding and a
description of how the project proponent may, if applicable, address
any deficiencies in the meeting request or resource reports so that DOE
may reconsider its determination.
(d) Not later than 30 calendar days after the date that DOE
provides notice to the project proponent under paragraph (c) of this
section that the close-out meeting request has been accepted, DOE shall
convene the close-out meeting with the project proponent and all
relevant Federal entities. All relevant non-Federal entities
participating in the IIP Process shall also be invited.
(e) The IIP Process close-out meeting concludes the IIP Process.
During the close-out meeting:
(1) The participants shall discuss the project proponent's updates
to the siting process to date, including stakeholder outreach
activities, resultant stakeholder input, and project proponent response
to stakeholder input; and
(2) DOE shall present the final project-specific schedule.
(f) Not later than 15 calendar days after the close-out meeting,
DOE shall:
(1) Prepare a draft close-out meeting summary; and
(2) Convey the draft summary to the project proponent, relevant
Federal entities, and any non-Federal entities that participated in the
meeting.
(g) The project proponent and entities that received the draft
close-out meeting summary under paragraph (f) of this section will have
15 calendar days following receipt of the draft to review the draft and
provide corrections to DOE.
(h) Not later than 15 calendar days following the close of the 15-
day review period under paragraph (g) of this section, DOE shall:
(1) Prepare a final close-out meeting summary by incorporating
received corrections, as appropriate;
(2) Add the final summary to the consolidated administrative docket
described by Sec. 900.10;
(3) Provide an electronic copy of the summary to all relevant
Federal entities, relevant non-Federal entities, and the project
proponent; and
(4) In the event that the project is not identified as a covered
project pursuant to Sec. 900.5(e), notify the Federal Permitting
Improvement Steering Council (FPISC) Executive Director that the
project ought to be included on the FPISC Dashboard as a transparency
project.
(i) DOE and any NEPA co-lead agency shall issue a Notice of Intent
to publish an environmental impact statement, consistent with the final
project-specific schedule.
Sec. 900.10 Consolidated administrative docket.
(a) DOE shall maintain a consolidated docket of:
(1) All information that DOE distributes to or receives from the
project proponent, relevant Federal entities, and relevant non-Federal
entities related to the Integrated Interagency Pre-Application (IIP)
Process, including:
(i) The IIP initiation request, review meeting request, and close-
out meeting request required by Sec. Sec. 900.5, 900.8, and 900.9;
(ii) The IIP Process final meeting summaries required by Sec. Sec.
900.5, 900.8 and 900.9;
(iii) The IIP Process final resources reports developed under Sec.
900.6;
(iv) The final project-specific schedule developed under Sec. Sec.
900.7 and 900.8;
(v) Other documents submitted by the project proponent as part of
the IIP Process or provided to the project proponent as part of the IIP
Process, including but not limited to maps, publicly available data,
and other supporting documentation; and
[[Page 55855]]
(vi) Communications between any Federal or non-Federal entity and
the project proponent regarding the IIP Process; and
(2) All information assembled and used by relevant Federal entities
as the basis for Federal authorizations and related reviews following
completion of the IIP Process.
(b) Federal entities should include DOE in all communications with
the project proponent related to the IIP Process for the qualifying
project.
(c) DOE shall make the consolidated docket available, as
appropriate, to the NEPA co-lead agency selected under Sec. 900.11;
any Federal or non-Federal entity responsible for issuing an
authorization for the qualifying project; and any consulting parties
per section 106 of the NHPA, consistent with 36 CFR part 800. DOE shall
exclude or redact privileged documents, as appropriate.
(d) Where necessary and appropriate, DOE may require a project
proponent to contract with a qualified record-management consultant to
compile a contemporaneous docket on behalf of all participating
agencies. Any such contractor shall operate at the direction of DOE,
and DOE shall retain responsibility and authority over the content of
the docket.
Sec. 900.11 NEPA lead agency and selection of NEPA co-lead agency.
(a) For a qualifying project that is accepted for the Integrated
Interagency Pre-Application (IIP) Process under Sec. 900.5, DOE shall
serve as the lead agency to prepare an environmental impact statement
(EIS) to serve the needs of all relevant entities. A NEPA co-lead
agency to prepare the EIS may also be designated pursuant to this
section, no later than by the IIP review meeting.
(b) The NEPA co-lead agency, if any, shall be the Federal entity
with the most significant interest in the management of Federal lands
or waters that would be traversed or affected by the qualifying
project. DOE shall make this determination in consultation with all
Federal entities that manage Federal lands or waters traversed or
affected by the qualifying project. For projects that would traverse
lands managed by both the USDA and the DOI, DOE will request that USDA
and DOI determine the appropriate NEPA co-lead agency, if any.
Sec. 900.12 Environmental review.
(a) After the Integrated Interagency Pre-Application (IIP) Process
close-out meeting, and after receipt of a relevant application in
accordance with the project-specific schedule, DOE and any NEPA co-lead
agency selected under Sec. 900.11 shall prepare an environmental
impact statement (EIS) for the qualifying project designed to serve the
needs of all relevant Federal entities.
(b) When preparing the EIS, DOE and any NEPA co-lead agency shall:
(1) Consider the materials developed throughout the IIP Process;
and
(2) Consult with relevant Federal entities and relevant non-Federal
entities.
(c) DOE, in consultation with any NEPA co-lead agency, will be
responsible for:
(1) Identifying, contracting with, directing, supervising, and
arranging for the payment of contractors, as appropriate, to draft the
EIS; and
(2) Publishing all completed environmental review documents.
(d) Each Federal entity or non-Federal entity that is responsible
for issuing a separate Federal authorization for the qualifying project
shall:
(1) Identify all information and analysis needed to make the
authorization decision; and
(2) Identify all alternatives that need to be included, including a
preferred alternative, with respect to the authorization.
(e) DOE and any NEPA co-lead agency, in consultation with relevant
Federal entities, shall identify the full scope of alternatives for
analysis, including the no action alternative.
(f) To the maximum extent permitted under law, relevant Federal
entities shall use the EIS as the basis for all Federal authorization
decisions on the qualifying project. Those entities shall execute their
own records of decision.
(g) For all qualifying projects, DOE and the applicable Federal
entity or entities shall serve as co-lead agencies for consultation
under the Endangered Species Act, per 50 CFR 402.07, and compliance
with section 106 of the National Historic Preservation Act, per 36 CFR
800.2(a)(2).
Sec. 900.13 Severability.
The provisions of this part are separate and severable from one
another. Should a court of competent jurisdiction hold any provision(s)
of this part to be stayed or invalid, such action shall not affect any
other provision of this part.
[FR Doc. 2023-17283 Filed 8-11-23; 8:45 am]
BILLING CODE 6450-01-P