Aug 16 -- 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.
DOE will accept comments, data, and information regarding this proposed rule on or before October 2, 2023.
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 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 for transmission projects.
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. . . .
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 and effectively inform their corresponding Federal authorization decisions. These elements of the CITAP Program are described in more detail throughout this proposed rule.
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 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. . . .
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. . . .
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. . . .
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 § 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 § 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. . . .