Errata Issued 1_17_23

182 FERC ¶ 61,020
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION

Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

ERRATA NOTICE
(January 17, 2023)
On December 15, 2022, the Commission issued a notice of proposed rulemaking
(NOPR) in the above-captioned docket.1 In this NOPR, the Commission proposes to
revise its existing regulations governing applications for permits to site electric
transmission facilities under section 216 of the Federal Power Act, as amended by the
Infrastructure Investment and Jobs Act of 2021. Subsequent to the Commission’s
issuance of this NOPR and prior to publication in the Federal Register, the Federal
Register requested various minor, non-substantive, editorial revisions to the NOPR,
including the preamble and regulatory text instructions. Staff also updated certain
regulatory cross-references for consistency and made other minor editorial revisions.
The NOPR as issued is hereby revised by this Errata Notice to reflect the editorial
revisions requested by the Federal Register as well as minor non-substantive editorial
revisions. Attached to this Errata Notice is a clean version and also a redlined version
showing the changes made to the clean version of the NOPR.

1

Applications for Permits to Site Interstate Electric Transmission Facilities,
181 FERC ¶ 61,205 (2022) (Notice of Proposed Rulemaking).

181 FERC ¶ 61,205
DEPARTMENT OF ENERGY
FEDERAL ENERGY REGULATORY COMMISSION
18 CFR Parts 50 and 380
[Docket No. RM22-7-000]
Applications for Permits to Site Interstate Electric Transmission Facilities
(Issued December 15, 2022)

AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Federal Energy Regulatory Commission proposes to revise its
existing regulations governing applications for permits to site electric transmission
facilities under section 216 of the Federal Power Act, as amended by the Infrastructure
Investment and Jobs Act of 2021.
DATES: Comments are due [INSERT DATE 90 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER].
ADDRESSES: Comments, identified by docket number, may be filed in the following
ways. Electronic filing through http://www.ferc.gov is preferred.
• Electronic Filing: Documents must be filed in acceptable native applications and
print-to-PDF, but not in scanned or picture format.
• For those unable to file electronically, comments may be filed by U.S. Postal
Service mail or by hand (including courier) delivery.

Docket No. RM22-7-000

o Mail via U.S. Postal Service only: Addressed to: Federal Energy
Regulatory Commission, Office of the Secretary, 888 First Street NE,
Washington, DC 20426.
o For delivery via any other carrier (including courier): Deliver to: Federal
Energy Regulatory Commission, Office of the Secretary, 12225 Wilkins
Avenue, Rockville, MD 20852.
The Comment Procedures section of this document contains more detailed filing
procedures.
FOR FURTHER INFORMATION CONTACT:
Brandon Cherry (Technical Information)
Office of Energy Projects
Federal Energy Regulatory Commission
888 First Street NE
Washington, DC 20426
(202) 502-8328
[email protected]
Cleo Deschamps (Legal Information)
Office of the General Counsel
Federal Energy Regulatory Commission
888 First Street NE
Washington, DC 20426
(202) 502-8377
[email protected]
SUPPLEMENTARY INFORMATION:

ii

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

NOTICE OF PROPOSED RULEMAKING
TABLE OF CONTENTS
Paragraph Numbers
I. Background ..................................................................................................................... 2.
A. Energy Policy Act of 2005 and FPA Section 216 ..................................................... 2.
B. Order No. 689 ............................................................................................................ 9.
C. Piedmont & California Wilderness Judicial Decisions ........................................... 11.
D. IIJA Amendments to FPA Section 216 ................................................................... 14.
II. Discussion .................................................................................................................... 17.
A. Commission Jurisdiction and State Siting Proceedings .......................................... 17.
1. IIJA Amendments to FPA Section 216(b)(1)(C) ................................................. 18.
2. Commencement of Pre-filing .............................................................................. 19.
B. Eminent Domain Authority and Applicant Efforts to Engage with Landowners and
Other Stakeholders ....................................................................................................... 24.
C. Environmental Justice Public Engagement Plan ..................................................... 30.
D. Other Proposed Revisions to 18 CFR Part 50 ......................................................... 32.
1. Section 50.1 – Definitions ................................................................................... 32.
2. Section 50.3 – Filing and Formatting Requirements ........................................... 34.
3. Section 50.4 – Stakeholder Participation ............................................................. 35.
4. Section 50.5 – Pre-filing Procedures ................................................................... 40.
5. Section 50.6 – General Content of Applications ................................................. 42.
6. Section 50.7 – Application Exhibits .................................................................... 44.
7. Section 50.11 – General Permit Conditions ........................................................ 46.
8. Proposed Clarifying Revisions to 18 CFR Part 50 .............................................. 48.
E. Regulations Implementing NEPA ........................................................................... 49.
1. Tribal Resources Resource Report ...................................................................... 63.
2. Environmental Justice Resource Report .............................................................. 65.
3. Air Quality and Environmental Noise Resource Report ..................................... 68.
4. Visual Resources ................................................................................................. 72.
5. Additional Proposed Revisions to 18 CFR 380.16 .............................................. 74.
6. Proposed Revisions to 18 CFR 380.13 and 380.14 ............................................. 83.
III. Information Collection Statement .............................................................................. 84.
IV. Environmental Analysis ............................................................................................. 98.

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V. Regulatory Flexibility Act ........................................................................................... 99.
VI. Comment Procedures ............................................................................................... 103.
VII. Document Availability ............................................................................................ 106.

181 FERC ¶ 61,205
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Richard Glick, Chairman;
James P. Danly, Allison Clements,
Mark C. Christie, and Willie L. Phillips.
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

NOTICE OF PROPOSED RULEMAKING
(Issued December 15, 2022)
On November 15, 2021, the Infrastructure Investment and Jobs Act (IIJA) became
law.1 The IIJA, among other things, amended section 216 of the Federal Power Act
(FPA), which provides for Federal siting of electric transmission facilities under certain
circumstances. The Federal Energy Regulatory Commission (Commission) proposes to
amend its regulations governing applications for permits to site electric transmission
facilities to ensure consistency with the IIJA’s amendments to FPA section 216, to
modernize certain regulatory requirements, and to incorporate other updates and
clarifications to provide for the efficient and timely review of permit applications.
I.

Background
A.

Energy Policy Act of 2005 and FPA Section 216

The authority to site electric transmission facilities has traditionally resided solely
with the States. However, the August 8, 2005 enactment of the Energy Policy Act of
2005 (EPAct 2005)2 established a limited Federal role in electric transmission siting by

1
2

Pub. L. 117-58, sec. 40105, 135 Stat. 429 (2021).
Pub. L. 109-58, sec. 1221, 119 Stat. 594 (2005) (amended 2021).

Docket No. RM22-7-000

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adding section 216 to the FPA. Under section 216, Federal siting authority for electric
transmission facilities (as defined in that section) is divided between the Department of
Energy (DOE) and the Commission. Section 216(a) directs DOE, on a triennial basis, to
conduct a study and issue a report on electric transmission congestion and permits DOE
to designate certain transmission-constrained or congested geographic areas as national
interest electric transmission corridors (National Corridors). Section 216(b) authorizes
the Commission in certain instances to issue permits for the construction or modification
of electric transmission facilities in areas that DOE has designated as National Corridors.
As originally enacted in EPAct 2005, section 216(b)(1) authorized the
Commission to issue permits to construct or modify electric transmission facilities in a
National Corridor if it found that: (A) a State in which such facilities are located lacks
the authority to approve the siting of the facilities or consider the interstate benefits
expected to be achieved by the proposed construction or modification of transmission
facilities in the State;3 (B) the permit applicant is a transmitting utility but does not
qualify to apply for a permit or siting approval in a State because the applicant does not
serve end-use customers in the State;4 or (C) a State commission or entity with siting
authority has withheld approval of the facilities for more than one year after an
application is filed or one year after the designation of the relevant National Corridor,
whichever is later, or the State conditions the construction or modification of the facilities

3
4

16 U.S.C. 824p(b)(1)(A) (2018).
Id. 824p(b)(1)(B) (2018).

Docket No. RM22-7-000

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in such a manner that the proposal will not significantly reduce transmission congestion
in interstate commerce or is not economically feasible.5
In addition, before issuing a permit, sections 216(b)(2) through (6) required the
Commission to find that the proposed facilities: (1) will be used for the transmission of
electricity in interstate commerce; (2) are consistent with the public interest; (3) will
significantly reduce transmission congestion in interstate commerce and protect or benefit
consumers; (4) are consistent with sound national energy policy and will enhance energy
independence; and (5) will maximize, to the extent reasonable and economical, the
transmission capabilities of existing towers or structures.6
Section 216(e) authorized a permit holder, if unable to reach agreement with a
property owner, to use eminent domain to acquire the necessary right-of-way for the
construction or modification of transmission facilities for which the Commission has
issued a permit under section 216(b).7 Federal and State-owned land was expressly
excluded from the purview of section 216(e) and thus could not be acquired via eminent
domain.8
Section 216(h)(2) designated DOE as the lead agency for purposes of coordinating
all Federal authorizations and related environmental reviews needed to construct
proposed electric transmission facilities. To ensure timely and efficient reviews and
permit decisions, under section 216(h)(4)(A), DOE is required to establish prompt and
binding intermediate milestones and ultimate deadlines for all Federal reviews and

5

Id. 824p(b)(1)(C) (2018).
16 U.S.C. 824p(b)(2)-(6) (as amended by IIJA section 1221).
7
Id. 824p(e)(1).
8
Id.
6

Docket No. RM22-7-000

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authorizations required for a proposed electric transmission facility.9 Under section
216(h)(5)(A), DOE, as lead agency, in consultation with other affected agencies, is
required to prepare a single environmental review document that would be used as the
basis for all decisions for proposed projects under Federal law.
On May 16, 2006, the Secretary of DOE delegated to the Commission authority to
implement parts of section 216(h), specifically paragraphs (2), (3), (4)(A)-(B), and (5),
for the proposed transmission facilities in designated National Corridors for which an
applicant has applied to the Commission for issuance of a permit under section 216(b).10
Specifically, the Secretary delegated DOE’s lead agency responsibilities to the
Commission for the purposes of coordinating all applicable Federal authorizations and
related environmental reviews and preparing a single environmental review document for
proposed facilities under the Commission’s siting jurisdiction.11
As discussed further below, the IIJA amended certain provisions of section 216
that pertain to the Commission’s permitting authority.
B.

Order No. 689

Section 216(c)(2) of the FPA required the Commission to issue rules specifying
the form of, and the information to be contained in, an application for proposed

9

Under FPA section 216(h)(6)(A), if any agency has denied a Federal authorization
required for a transmission facility, or has failed to act by the deadline established by the
Secretary of DOE, the applicant or any State in which the facility would be located may
file an appeal with the President.
10
See DOE Delegation Order No. 00-004.00A.
11
While Congress has provided the authority to establish prompt and binding milestones
and deadlines for the review of, and Federal authorization decisions relating to, facilities
proposed under section 216, 16 U.S.C. 824p(h)(4)(A), efficient processing of applications
will depend upon agencies complying with the established milestones and deadlines.

Docket No. RM22-7-000

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construction or modification of electric transmission facilities in National Corridors, and
the manner of service of notice of the permit application on interested persons. Pursuant
to this statutory requirement, on November 16, 2006, the Commission issued Order
No. 689, which implemented new regulations for section 216 permit applications by
adding part 50 to the Commission’s regulations.12 In addition, Order No. 689 adopted
certain modifications to the Commission’s regulations implementing the National
Environmental Policy Act of 1969 (NEPA) in part 380 to ensure that the Commission is
provided sufficient information to conduct an environmental analysis of a proposed
electric transmission project.
In Order No. 689, the Commission addressed a question of statutory interpretation
raised by commenters concerning the text of section 216(b)(1)(C), which, at the time,
conferred jurisdiction to the Commission whenever a State had withheld approval of a
State siting application for more than one year.13 The Commission interpreted the phrase
“withheld approval” to include any action that resulted in an applicant not receiving State
approval within one year, including a State’s express denial of an application to site
transmission facilities.14

12

Regulations for Filing Applications for Permits to Site Interstate Elec. Transmission
Facilities, Order No. 689, 71 FR 69440 (Dec. 1, 2006), 117 FERC ¶ 61,202 (2006)
(Order No. 689 Final Rule), reh’g denied, 119 FERC ¶ 61,154 (2007) (Order
No. 689 Rehearing Order).
13
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at PP 24-31; Order No. 689 Rehearing
Order, 119 FERC ¶ 61,154 at PP 7-23.
14
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at P 26; Order No. 689 Rehearing
Order, 119 FERC ¶ 61,154 at P 11.

Docket No. RM22-7-000
C.

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Piedmont & California Wilderness Judicial Decisions

In 2009, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit), in
Piedmont Environmental Council v. FERC,15 held that the Commission’s interpretation
of “withheld approval” was contrary to the plain meaning of the statute, and that the
Commission’s permitting authority does not apply when a State has affirmatively denied
a permit application within the one-year deadline.16 In addition, the Fourth Circuit
vacated the Commission’s transmission-related amendments to its regulations
implementing NEPA, finding that the Commission had failed to consult with the Council
on Environmental Quality (CEQ) before adopting the revisions.17
Two years later, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), in
California Wilderness Coalition v. DOE, considered petitions for review challenging
DOE’s actions following the enactment of section 216.18 In August 2006, DOE had
issued a Congestion Study, which identified two critically congested areas in the MidAtlantic and Southern California.19 Based on the results of the Congestion Study, in
October 2007, DOE formally designated two National Corridors, the Mid-Atlantic and
the Southwest Area Corridors.20 The Ninth Circuit vacated DOE’s Congestion Study and
National Corridor designations, finding that the agency: (1) failed to properly consult
with affected States in preparing the Congestion Study, as required by section 216; and

15

558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147 (2010) (Piedmont).
Id. at 313.
17
Id. at 319, 320.
18
631 F.3d 1072 (9th Cir. 2011) (California Wilderness).
19
Id. at 1081 (citing National Electric Transmission Congestion Study,
71 FR 45047 (Aug. 8, 2006)).
20
Id. at 1083 (citing National Electric Transmission Congestion Report,
72 FR 56992 (Oct. 5, 2007)).
16

Docket No. RM22-7-000

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(2) failed to consider the environmental effects of the National Corridor designations
under NEPA.21
Since the Ninth Circuit decision in 2011, DOE has not designated any National
Corridors, and the Commission has not received any applications for permits to site
electric transmission facilities.
D.

IIJA Amendments to FPA Section 216

On November 15, 2021, the IIJA amended section 216 of the FPA. As relevant
to the Commission’s permitting authority, the IIJA amended section 216(b)(1)(C) by
deleting the phrase “withheld approval” and by incorporating revisions to the statutory
text. As amended, section 216(b)(1)(C) provides that the Commission’s permitting
authority is triggered when a State commission or other entity with authority to approve
the siting of the transmission facilities: (i) has not made a determination on an
application by one year after the later of the date on which the application was filed or
the date on which the relevant National Corridor was designated; (ii) has conditioned
its approval such that the proposed project will not significantly reduce transmission
capacity constraints or congestion in interstate commerce or is not economically feasible;
or (iii) has denied an application.22 This statutory amendment resolves the jurisdictional
issue at the heart of Piedmont by giving the Commission permitting authority when a
State has denied an application.23

21

Id. at 1096, 1106.
16 U.S.C. 824p(b)(1)(C) (as amended by IIJA section 1221).
23
Id. 824p(b)(1)(C)(iii).
22

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Additionally, the IIJA amended section 216(e), which grants a permit holder the
right to acquire the necessary right-of-way by eminent domain.24 As amended, section
216(e)(1) requires the Commission to determine, as a precondition to such eminent
domain authority, that a permit holder has made good faith efforts to engage with
landowners and other stakeholders early in the applicable permitting process.25
With respect to DOE’s authority, the IIJA amended section 216(a)(2) to expand
the circumstances under which DOE may designate a National Corridor. In addition to
geographic areas currently experiencing transmission capacity constraints or congestion
that adversely affects consumers, DOE may designate National Corridors in geographic
areas expected to experience such constraints or congestion. The IIJA also amended
section 216(a)(4) to expand the factors that DOE may consider in determining whether to
designate a National Corridor.
II.

Discussion
A.

Commission Jurisdiction and State Siting Proceedings

Section 216(b)(1)(C) of the FPA addresses instances where a State commission or
other State entity with authority to site transmission facilities has acted, or has failed to
act, triggering the Commission’s jurisdiction. Below, the Commission proposes to revise
§ 50.6 of its regulations to reflect the IIJA’s amendments to section 216(b)(1)(C) and
announces a policy change with respect to the commencement of the Commission’s prefiling process for cases where the Commission’s jurisdiction rests on section
216(b)(1)(C).

24
25

Id. 824p(e)(1).
See id.

Docket No. RM22-7-000
1.

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IIJA Amendments to FPA Section 216(b)(1)(C)

As discussed above, the IIJA amended FPA section 216(b)(1)(C) by revising the
statutory text to expressly state that the Commission may issue a permit for the
construction or modification of electric transmission facilities in National Corridors if a
State has denied an applicant’s request to site transmission facilities.26 Therefore, the
Commission proposes to revise § 50.6 of its regulations, which describes the information
that is required in each application filed pursuant to our part 50 regulations. As relevant
here, § 50.6(e) requires the applicant to demonstrate that its proposed project would
satisfy the requirements of section 216(b)(1) through (6). To reflect the IIJA’s
amendments to section 216(b)(1)(C), the Commission proposes corresponding revisions
to § 50.6(e)(3) to provide that the applicant is required to submit evidence demonstrating
that a State has: (i) not made a determination on an application; (ii) conditioned its
approval in such a manner that the proposed facilities would not significantly reduce
transmission capacity constraints or congestion in interstate commerce or is not
economically feasible; or (iii) denied an application.
2.

Commencement of Pre-filing

The Commission has recognized that Congress, in enacting section 216 of the
FPA, adopted a statutory scheme that allows simultaneous State and Commission siting
processes.27 As explained in Order No. 689, the statute provides for this potential overlap
by allowing the Commission to issue a permit one year after the State siting process has
begun and requiring an expeditious pre-application mechanism for all permit decisions

26
27

See supra P 14.
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at P 19.

Docket No. RM22-7-000

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under Federal law.28 Thus, the Commission has recognized that our pre-filing process
can occur at the same time as simultaneous State proceedings.29
Notwithstanding that the statute allows simultaneous State and Federal
proceedings, the Commission in the preamble to Order No. 689 announced a policy that,
in cases where its jurisdiction rests on section 216(b)(1)(C),30 the pre-filing process
would not commence until one year after the relevant State applications have been filed.31
This approach, the Commission explained, would provide the States one full year to
process an application without any intervening Federal proceedings, including both the
pre-filing and application processes, after which time an applicant might seek to
commence the Commission’s pre-filing process.32 However, the Commission noted that
it would reconsider this issue if it later determined that requiring applicants to wait one
year before commencing the Commission’s pre-filing process was delaying projects or
otherwise not in the public interest.33
We are now reconsidering that policy. To ensure that permit applicants receive as
timely a decision as possible from the Commission, we propose to eliminate the one-year
delay before the Commission’s pre-filing process may commence. The purpose of the
pre-filing process is to facilitate maximum participation from all stakeholders to provide
them with an opportunity to present their views and recommendations with respect to the

28

Id.
Id.
30
In Order No. 689, the Commission explained that in all other instances, the pre-filing
process may be commenced at any time. Id. P 21 n.14.
31
Id. P 21.
32
Id.
33
Id.
29

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environmental impacts of the facilities early in the planning stages of the proposed
facilities. In addition to gathering stakeholder input, during the pre-filing process
Commission staff will work with the applicant to ensure the applicant has compiled the
necessary information for a complete application under §§ 50.6 and 50.7,34 and begin
our coordination with other agencies as required under section 216(h).35 Therefore, to
encourage the development of needed transmission infrastructure and to minimize the
risk of delays, we propose to allow simultaneous processing of State applications and
Commission pre-filing proceedings.
The Commission continues to recognize the primacy of the States’ role in siting
transmission infrastructure but, as discussed, believes that allowing for simultaneous
processing could facilitate a more efficient process. In addition, we note that, the
applicant could potentially collect information that is relevant to both State and Federal
proceedings only once, avoiding the need to re-do or update analysis needed to meet
Federal permit requirements. While states and other interested stakeholders are free to
submit information in the pre-filing process, they are under no obligation to participate
and will not waive any rights or otherwise be prejudiced if they choose not to do so. No
rights are adjudicated in the pre-filing process, nor are findings of fact made. The prefiling process is intended to facilitate the development of a complete application that can
be acted upon expeditiously.
Though the statute does not limit when the Commission’s pre-filing process may
begin, the Commission intends to entertain requests to commence pre-filing, and may

34
35

Id.
16 U.S.C. 824p(h); DOE Delegation Order No. 00-004.00A.

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grant such requests, at any time after the relevant State applications have been filed.
However, out of respect for State siting processes, the Commission proposes to provide
an additional opportunity for State input before we determine that the pre-filing process is
complete and that an application may be filed. Specifically, one year after the
commencement of the Commission’s pre-filing process, if a State has not made a
determination on an application, we propose to provide a 90-day window for the State to
provide comments on any aspect of the pre-filing process, including any information
submitted by the applicant. We also seek comment on the advantages or disadvantages
of the Commission entertaining requests to commence the pre-filing process before a
State application has been filed.
B.

Eminent Domain Authority and Applicant Efforts to Engage with
Landowners and Other Stakeholders

As described above, the IIJA amended FPA section 216(e)(1) to require the
Commission to determine, as a precondition to receiving eminent domain authority,
that the permit holder has made good faith efforts to engage with landowners and
stakeholders early in the permitting process.36 Therefore, the Commission proposes to
supplement the existing landowner and stakeholder participation provisions in part 50 of
its regulations.
Section 50.4 of the regulations requires the applicant to develop and file a Project
Participation Plan early in the pre-filing process and to distribute, by mail and newspaper
publication, project participation notices early in both the pre-filing and application

36

16 U.S.C. 824p(e)(1) (as amended by IIJA section 1221).

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review processes. Specifically, under § 50.4(a), the Project Participation Plan must:
(1) identify specific tools and actions to facilitate stakeholder communications and public
information; (2) list locations throughout the project area where the applicant will provide
copies of all project filings; and (3) explain how the applicant intends to respond to
requests for information from the public and other entities. Under § 50.4(c), the project
participation notices must provide a range of information on the proposed project and
permitting process, including a general description of the property an applicant would
need from an affected landowner and a brief summary of what rights an affected
landowner has at the Commission and in proceedings under the eminent domain rules of
the relevant State.
To address the IIJA’s amendment to section 216(e)(1), we propose to supplement
the regulatory requirements in § 50.4 by adding a new § 50.12. Under proposed § 50.12,
an applicant may demonstrate that it has met the statutory good faith efforts standard by
complying with an Applicant Code of Conduct in its communications with affected
landowners. The Applicant Code of Conduct in proposed § 50.12(a) includes particular
recordkeeping and information-sharing requirements for engagement with affected
landowners, as well as more general prohibitions against certain misconduct in such
engagement. For example, an applicant that chooses to comply with the Applicant Code
of Conduct set forth in proposed § 50.12(a) must: retain an affected landowner contact
log; provide affected landowners with certain information about the project and the
Commission; ensure communications with affected landowners are factually correct,
devoid of misrepresentation, and respectful; obtain affected landowner permission to
enter property and leave when asked; and, if applicable, provide an affected landowner

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with a copy of any appraisal prepared by, or on behalf of, the applicant for that
landowner’s property.
Under proposed § 50.12(b)(1), an applicant that chooses to show good faith by
complying with the Applicant Code of Conduct must file, as part of the pre-filing request
required under § 50.5(c), an affirmative statement indicating its intent to comply with the
Applicant Code of Conduct. Under proposed § 50.12(b)(2), such an applicant must, as
part of the monthly status reports required under § 50.5(e), demonstrate compliance by:
(i) affirming that the applicant and its representatives have complied with the Applicant
Code of Conduct; or (ii) explaining any instances of non-compliance during the relevant
month and any remedial actions taken or planned. Under proposed § 50.12(b)(3), an
applicant must also identify any known instances of non-compliance that were not
disclosed in prior monthly status reports and explain any remedial actions taken to
remedy such instances of non-compliance.
We emphasize that voluntary compliance with the Applicant Code of Conduct is
one way, but not the only way, that an applicant may demonstrate that it has met the
“good faith efforts” standard in section 216(e)(1). However, we believe that the
Applicant Code of Conduct reflects principles that are broadly relevant to determining
whether an applicant has made good faith efforts to engage with landowners and other
stakeholders early in the applicable permitting process. We propose to require under
§ 50.12 that an applicant that chooses not to rely on compliance with the Applicant Code
of Conduct must specify its alternative method of demonstrating that it meets the good
faith efforts standard, including any specific commitments to record-keeping and
information-sharing. The applicant must explain how its alternative method is equal to or

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superior to compliance with the Applicant Code of Conduct as a means to ensure the
good faith efforts standard is met. The applicant should specifically explain, for each
deviation from the Applicant Code of Conduct in its alternative method, its reasoning for
not following that provision of the Applicant Code of Conduct and why the alternative
method is an equal or better means to ensure the good faith standard is met
notwithstanding that deviation.
An applicant bears the burden of demonstrating it has met the good faith efforts
standard in a permit application proceeding. For an applicant that elects to rely on
compliance with the Applicant Code of Conduct, the Commission will assess “good faith
efforts” by evaluating whether evidence in the record shows the applicant substantially
complied with the provisions of the Applicant Code of Conduct in its engagement with
landowners and other stakeholders. For an applicant that elects to rely on an alternative
method to show good faith efforts, the Commission will first assess whether the
applicant’s alternative method is equal to or superior to the Applicant Code of Conduct
as a means to ensure the good faith efforts standard is met. If so, the Commission will
then assess “good faith efforts” by evaluating whether evidence in the record shows
the applicant substantially complied with the commitments of its alternative method.
C.

Environmental Justice Public Engagement Plan

As described above, applicants are currently required by § 50.4(a) to develop and
file a Project Participation Plan early in the pre-filing process. This requirement is
intended to facilitate stakeholder communication and the dissemination of public
information about the proposed project. Consistent with that goal, we believe that
applicants should, early in the pre-filing process, meaningfully engage with potentially

Docket No. RM22-7-000

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affected environmental justice communities. As discussed in this notice of proposed
rulemaking (NOPR), the term “environmental justice community” includes
disadvantaged communities that have been historically marginalized and overburdened
by pollution.37 The term also includes, but may not be limited to, minority populations,
low-income populations, or indigenous peoples.38 Applicants will identify potential
environmental justice communities using the identification methods consistent with
current Commission practice.39 This engagement would be consistent with:
(1) Executive Order 12898, which directs Federal agencies to identify and address
“disproportionately high and adverse human health or environmental effects” of their

37

E.O. 14008, 86 FR 7619, § 219 (Jan. 27, 2021).
See EPA, EJ 2020 Glossary (Aug. 18, 2022),
https://www.epa.gov/environmentaljustice/ej-2020-glossary.
39
To identify potential environmental justice communities, Commission staff uses
current U.S. Census American Community Survey data for the race, ethnicity, and
poverty data at the State, county, and block group level. As recommended in Promising
Practices, the Commission currently uses the fifty percent and the meaningfully greater
analysis methods to identify minority populations. Specifically, a minority population is
present where either: (1) the aggregate minority population of the block groups in the
affected area exceeds 50 percent; or (2) the aggregate minority population in the block
group affected is 10 percent higher than the aggregate minority population percentage
in the county. Environmental Protection Agency (EPA), Promising Practices for EJ
Methodologies in NEPA Reviews
(Mar. 2016) (Promising Practices), https://www.epa.gov/sites/default/files/201608/documents/nepa_promising_practices_document_2016.pdf. The Commission intends
to review and incorporate any updated guidance from CEQ and EPA in our future
analyses, as appropriate. Using Promising Practices’ low-income threshold criteria
method, Commission staff currently identifies low-income populations as block groups
where the percent of a low-income population in the identified block group is equal to or
greater than that of the county. We recognize that CEQ and EPA are in the process of
updating their guidance and recommendations regarding environmental justice. We
expect applicants to utilize the latest guidance and data from CEQ, EPA, the Census
Bureau, and other authoritative sources. The Commission intends to update our methods
for identifying potential environmental justice communities following review of any
updated environmental justice guidance and recommendations from CEQ and EPA, as
appropriate.
38

Docket No. RM22-7-000

- 17 -

actions on minority and low-income populations (i.e., environmental justice
communities);40 (2) Executive Order 14008, which directs agencies to develop
“programs, policies, and activities to address the disproportionately high and adverse
human health, environmental, climate-related and other cumulative impacts on
disadvantaged communities, as well as the accompanying economic challenges of such
impacts;”41 (3) Executive Order 13985, which requires Federal agencies to conduct
Equity Assessments to identify and remove barriers to underserved communities and “to
increase coordination, communication, and engagement with community-based
organizations and civil rights organizations;”42 and (4) the Environmental Protection
Agency’s (EPA) Promising Practices report.43 This engagement would also be
consistent with the Commission’s Equity Action Plan adhering to Executive Order
13985, which promotes equitable processes and outcomes for underserved communities,
including environmental justice communities, at the Commission.44

40

E.O. 12898, 59 FR 7629 (Feb. 16, 1994). Minority populations are those groups that
include: American Indian or Alaskan Native; Asian or Pacific Islander; Black, not
of Hispanic origin; or Hispanic. CEQ, Environmental Justice: Guidance Under the
National Environmental Policy Act at 25 (Dec. 1997) (CEQ’s Environmental Justice
Guidance),
https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQEJGuidance.pdf.
41
E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
42
E.O. 13985, 86 FR 7009, 7010-11 (Jan. 25, 2021).
43
EPA, Promising Practices for EJ Methodologies in NEPA Reviews (Mar. 2016),
https://www.epa.gov/sites/default/files/201608/documents/nepa_promising_practices_document_2016.pdf (Promising Practices).
The report includes guiding principles aimed at, among other things, early and
meaningful engagement with minority populations, low-income populations, and other
interested individuals, communities, and organizations in the NEPA process
44
FERC, Equity Action Plan (2022), https://www.ferc.gov/equity.

Docket No. RM22-7-000

- 18 -

Therefore, the Commission proposes to require applicants to develop and file an
Environmental Justice Public Engagement Plan as part of their Project Participation Plan
under § 50.4(a)(4). The Environmental Justice Public Engagement Plan must describe
the applicant’s completed and planned outreach activities that are targeted to identified
environmental justice communities. The plan must also summarize comments received
from potentially impacted environmental justice communities during any previous
outreach activities, if applicable, and describe planned outreach activities during the
permitting process, including efforts to identify, engage, and accommodate non-English
speaking groups or linguistically isolated communities. The plan should also describe the
manner in which the applicant will reach out to environmental justice communities about
potential mitigation.45
D.

Other Proposed Revisions to 18 CFR Part 50
1.

Section 50.1 – Definitions

Section 50.1 sets forth the definitions for part 50 of the Commission’s regulations.
The Commission proposes to add a definition for the term “Indian Tribe” for consistency
with its regulations governing other types of energy infrastructure projects.46
Specifically, the Commission proposes to define the term “Indian Tribe” as a Tribe that is

45

We note that the Environmental Justice Resource Report, discussed further below,
would require the applicant to describe any proposed mitigation measures intended to
avoid or minimize impacts on environmental justice communities, including any
community input received on the proposed mitigation measures and how that input
informed such measures. See infra P 65.
46
See, e.g., 18 CFR 4.30(b)(10) (2021) (defining “Indian Tribe” in reference to
an application for a license or exemption for a hydropower project) and 18 CFR 157.1
(defining “Indian Tribe” in reference to an application for a certificate of public
convenience and necessity for a natural gas pipeline project).

Docket No. RM22-7-000

- 19 -

recognized by treaty, by Federal statute, or by the U.S. Department of the Interior in its
periodic publication of Tribal governments.47 We also propose to add a definition for the
term “environmental justice community” to assist applicant compliance with the
requirement in proposed § 50.4(a)(4) that an applicant develop and file an Environmental
Justice Public Engagement Plan.48 Specifically, the Commission proposes to define the
term “environmental justice community” as any disadvantaged community that has been
historically marginalized and overburdened by pollution, including, but not limited to,
minority populations, low-income populations, or indigenous peoples. We seek comment
on the proposed definition of “environmental justice community” and whether the
Commission should consider adopting an alternative definition, and, if so, why? The
Commission also proposes to revise the definitions of: (1) “national interest electric
transmission corridor” to include any geographic area that is expected to experience
energy transmission capacity constraints or congestion, for consistency with the IIJA’s
amendments to section 216(a); (2) “permitting entity,” for clarity and consistency with
the statute; and (3) “stakeholder,” for clarity and to ensure that environmental justice
community members and other interested persons or organizations are covered by the
definition.
Section 50.1 defines “affected landowners” as owners of property interests, as
noted in the most recent county/city tax records as receiving the tax notice, whose
property: (1) is directly affected (i.e., crossed or used) by the proposed activity including
all facility sites, rights-of-way, access roads, staging areas, and temporary workspace; or

47
48

25 CFR 83.6(a) (2021).
See supra PP 30-31.

Docket No. RM22-7-000

- 20 -

(2) abuts either side of an existing right-of-way or facility site owned in fee by any utility
company, or abuts the edge of a proposed facility site or right-of-way which runs along a
property line in the area in which the facilities would be constructed, or contains a
residence within 50 feet of a proposed construction work area. The Commission is not
proposing to revise the definition of “affected landowners.” Nevertheless, we seek
comment on whether the Commission should revise the definition of “affected
landowners” to include landowners located within a certain geographic distance from the
proposed project facilities to address effects on visual (or other) resources, and, if so,
what geographic distance should be used and why?
2.

Section 50.3 – Filing and Formatting Requirements

Section 50.3 establishes the filing and formatting requirements for submissions in
the Commission’s pre-filing and application processes. The Commission proposes to
revise § 50.3(b) to eliminate the requirement that applications, amendments, and all
exhibits and other submissions must be submitted in an original and seven conformed
copies. Instead, to reduce waste, applicants would only be required to make these
submissions in electronic format.
3.

Section 50.4 – Stakeholder Participation
i.

Project Participation Plan

As described above, § 50.4(a) requires each applicant to develop and file a Project
Participation Plan for use during the pre-filing and application processes to ensure that
stakeholders have access to timely and accurate information on the proposed project and
permitting process. The Project Participation Plan must, among other things, identify
specific tools and actions to facilitate stakeholder communications and public

Docket No. RM22-7-000

- 21 -

information, including a regularly updated website. The Commission proposes to revise
§ 50.4(a)(1) to specify that an applicant’s website must include an interactive mapping
component to provide users with the ability to locate the proposed facilities in relation to
specific properties and other features. Additionally, as discussed above, the Commission
proposes to require an applicant to develop and file an Environmental Justice Public
Engagement Plan early in the pre-filing process, which would describe an applicant’s
outreach to environmental justice communities.49
ii.

Project Notification Requirements

As described above, § 50.4(c) sets forth the project notification requirements for
applicants. Section 50.4(c)(1) requires the applicant to distribute, by mail and newspaper
publication, project participation notices within a specified time following notice that
the pre-filing process has commenced and notice that an application has been filed.
Section 50.4(c)(1) directs the applicant to notify, among others, all affected landowners
and landowners with a residence within a quarter mile from the edge of the construction
right-of-way for the proposed project. The Commission proposes to revise § 50.4(c)(1)
for clarity and to ensure that applicants provide notice of the proposed project to all
interested individuals and organizations. We seek comment on whether a quarter-mile
limit is sufficient and, if not, what geographic distance should be used and why?
Section 50.4(c)(2)(i) describes the required contents of the pre-filing notice. For
clarity and to avoid confusion, the Commission proposes organizational changes in the
regulations to distinguish the requirements that pertain to any pre-filing notice that is sent

49

Supra PP 30-31.

Docket No. RM22-7-000

- 22 -

by mail or published in a newspaper (proposed § 50.4(c)(2)(i)) from the requirements that
pertain only to any pre-filing notice that is sent by mail to an affected landowner
(proposed § 50.4(c)(2)(ii)).
In addition to this reorganization, we propose to add a requirement that any prefiling notice mailed to an affected landowner also include a copy of a Commission
document titled “Landowner Bill of Rights in Federal Energy Regulatory Commission
Electric Transmission Proceedings” (Landowner Bill of Rights). We seek comment on a
draft version of the Landowner Bill of Rights provided in the Appendix to this NOPR.
The Commission believes that requiring the applicant to provide this information at the
outset of the permitting process would help ensure that affected landowners are informed
of their rights in dealings with the applicant, in Commission proceedings, and in eminent
domain proceedings. We also propose to require that any pre-filing notice sent by mail or
published in the newspaper include information clarifying that the Commission’s prefiling and application processes are separate from any simultaneous State siting
proceeding and explaining how to participate in any such State siting proceeding.
The Commission expects applicants to make a good faith effort to ensure that
individuals and organizations entitled to receive project participation notices can
comprehend the contents of such notices. Accordingly, applicants should consider the
need for project participation notices in languages other than English as part of the
Environmental Justice Public Engagement Plan described above. Additionally, we seek
comment on what methods of notice beyond mail and newspaper publication might be
utilized in order to effectively reach the largest number of stakeholders as possible.

Docket No. RM22-7-000
4.

- 23 -

Section 50.5 – Pre-filing Procedures

Section 50.5 describes the required pre-filing procedures for applicants seeking a
permit under FPA section 216. Section 50.5(c) describes the information that an
applicant must provide in the pre-filing request. The Commission proposes to require
that any pre-filing request include a detailed description of how the proposed project will
reduce capacity constraints and congestion on the transmission system (proposed
§ 50.5(c)(8)) and, as described above, a statement indicating whether an applicant intends
to comply with the Applicant Code of Conduct (proposed § 50.5(c)(9)).
Section 50.5(e) describes the information that an applicant must provide once the
Director of the Office of Energy Projects has issued a notice commencing the pre-filing
process, and the respective deadlines for filing such information. The Commission
proposes clarifications to § 50.5(e)(3) and (4) to ensure consistency with the project
notification requirements in § 50.4(c). We also propose to require an applicant to file
congestion-related information earlier in the Commission’s permitting process to provide
sufficient time for Commission staff to evaluate the adequacy of information needed to
conduct the required analyses under section 216(b)(4).50 Specifically, within 30 days of
the notice commencing the pre-filing process, we propose to require an applicant to
file a draft version of Exhibit H, System analysis data, required by § 50.7 (proposed
§ 50.5(e)(8)), showing how the proposed project will reduce capacity constraints and
congestion on the transmission system. In addition to a draft version of Exhibit H, we

50

FPA section 216(b)(4) requires the Commission to find that the proposed construction
or modification of transmission facilities will significantly reduce transmission
congestion in interstate commerce and protects or benefits consumers.

Docket No. RM22-7-000

- 24 -

also propose to require an applicant to file additional supporting information such as
system impact study reports, relevant regional transmission plans, and, if applicable,
expert witness testimony and other relevant information submitted with the State
application(s) (proposed § 50.5(e)(7)).
5.

Section 50.6 – General Content of Applications

Section 50.6 describes the information that must be provided as part of an
application for a permit under FPA section 216. In § 50.6(c), the Commission proposes
to update certain terminology for clarity (e.g., deleting origin and termination points and
replacing those terms with point of receipt and point of delivery, respectively). We also
propose to revise § 50.6(d) to specify that verification that the proposed route lies within
a DOE-designated National Corridor must include the date of designation.
Each application filed under part 50 of the Commission’s regulations must provide
evidence demonstrating that one of the jurisdictional bases set forth in section 216(b)(1)
applies to the proposed facilities. To ensure consistency with section 216(b)(1)(A), as
amended by the IIJA, the Commission proposes to add to § 50.6(e)(1) the phrase “or
interregional benefits” to clarify that an application may provide evidence that a State
does not have the authority to consider the interstate benefits or interregional benefits
expected to be achieved by the proposed facilities. While the statute, as amended by the
IIJA, does not define the term “interregional,” the Commission for the purposes of this
NOPR proposes to apply a meaning that is consistent with Order No. 1000, which defines
an interregional transmission facility as one that is located in two or more transmission

Docket No. RM22-7-000

- 25 -

planning regions.51 As discussed above, we also propose revisions to § 50.6(e)(3) to
ensure that the regulatory text tracks the IIJA’s amendments to section 216(b)(1)(C).52
6.

Section 50.7 – Application Exhibits

Section 50.7 identifies the exhibits that applicants must file with an application
and describes the technical data that must be provided in each exhibit. Section 50.7(g)
requires each applicant to submit Exhibit G—Engineering data, which must include a
detailed project description. For consistency and clarity, the Commission proposes
revisions to ensure that the project description includes points of receipt and delivery
(§ 50.7(g)(1)(i)), line design features that minimize audible corona noise during rain or
fog (§ 50.7(g)(1)(vi)), and overhead and underground structures (§ 50.7(g)(2)(ii)).
The Commission also proposes revisions to § 50.7(h), which describes the
requirements for Exhibit H—System analysis data. Specifically, we propose to:
(1) require the analysis to include project impacts on transmission capacity constraints
(§ 50.7(h)(1)); (2) clarify that the analysis must include steady-state, short-circuit, and
dynamic power flow cases, as applicable, and consider planned and forecasted forced
outage rate for generation and transmission and generation dispatch scenarios
(§ 50.7(h)(2)); and (3) require the analysis to identify how the proposed project will
affect congestion on neighboring transmission systems (§ 50.7(h)(3)). This information
is necessary for Commission staff to evaluate whether the proposed facilities would

51

Transmission Plan. & Cost Allocation by Transmission Owning & Operating Public
Utilities, Order No. 1000, 76 FR 49842 (Aug. 11, 2011), 136 FERC ¶ 61,051, at
P 482 n.374 (2011).
52
Supra P 18.

Docket No. RM22-7-000

- 26 -

significantly reduce transmission congestion and protect or benefit consumers, as
required by section 216(b)(4).
7.

Section 50.11 – General Permit Conditions

Section 50.11 lists the general conditions that would apply to any permit issued
under part 50 of the Commission’s regulations. The Commission proposes clarifying
edits to §§ 50.11(a) and (b). The proposed revision to § 50.11(b) is intended to foreclose
a situation where an applicant would need to accept a permit in instances where rehearing
has been denied by operation of law and the applicant has appealed, but the Commission
intends to issue a future order before the record is filed with the court of appeals.
In addition, to balance our commitment to expeditiously respond to parties’
concerns in comprehensive orders on rehearing and the serious concerns posed by the
possibility of construction proceeding prior to the completion of Commission review, we
propose to add language to § 50.11(d) that would, under certain circumstances and for a
limited time, preclude the issuance of authorizations to proceed with construction of
transmission facilities authorized under FPA section 216 while requests for rehearing of
orders issuing permits remain pending before the Commission. This proposed addition,
which mirrors a regulation that the Commission previously adopted in the natural gas
context,53 would ensure that construction of approved transmission facilities does not
begin during 30-day rehearing period and, if a qualifying rehearing request is filed, until
that request is no longer pending before the Commission, the record of the proceeding is

53

See Limiting Authorizations to Proceed with Construction Activities Pending
Rehearing, Order No. 871-B, 86 FR 26150 (May 13, 2021), 175 FERC ¶ 61,098, order
on reh’g, Order No. 871-C, 86 FR 43077 (Aug. 6, 2021), 176 FERC ¶ 61,062 (2021).

Docket No. RM22-7-000

- 27 -

filed with the court of appeals, or 90 days has elapsed since the rehearing request was
deemed denied by operation of law.
8.

Proposed Clarifying Revisions to 18 CFR Part 50

In addition to the proposed revisions discussed above, we propose minor, nonsubstantive edits throughout part 50 of our regulations. These proposed revisions are
intended to clarify or streamline existing requirements, to correct grammatical errors and
cross-references, and to maintain consistency.
E.

Regulations Implementing NEPA

In Order No. 689, in addition to establishing the requirements for applications
filed under FPA section 216, the Commission also adopted several amendments to its
NEPA regulations. These amendments included revisions or additions to: § 380.3(c)
(adding electric transmission projects to the list of project types for which applicants
must provide environmental information), § 380.5(b)(14) (adding electric transmission
facilities to the list of project types for which the Commission will prepare an
Environmental Assessment), § 380.6(a)(5) (adding major electric transmission facilities
using right-of-way in which there is no existing facility to the list of project types for
which the Commission will prepare an Environmental Impact Statement), § 380.8
(designating the Office of Energy Projects as responsible for the preparation of
environmental documents for electric transmission facilities), § 380.10(a)(2)(iii)
(clarifying that pre-filing proceedings for electric transmission facilities are not open to
motions to intervene), and § 380.15 (stating that electric transmission project sponsors
must comply with the National Electric Safety Code and transmission rights-of-way are
subject to the same construction and maintenance requirements as natural gas pipelines).

Docket No. RM22-7-000

- 28 -

The Commission also added a new section to its NEPA regulations, 18 CFR
380.16, which describes the specific environmental information that must be included in
applications for permits to site transmission facilities under section 216. Section 380.16
currently requires each applicant to submit an environmental report that includes eleven
resource reports, as follows.
Resource Report 1 requires the applicant to describe the project and proposed
construction methods and requirements; submit topographic maps, aerial images and/or
photographs showing the proposed project facilities; identify all authorizations and
mitigation measures required to construct the proposed project; and provide the names
and addresses of all affected landowners.54
Resource Report 2 requires the applicant to provide information necessary to
determine the impact of the proposed project on water use and water quality and
proposed mitigation measures.55
Resource Report 3 requires the applicant to describe aquatic life, wildlife, and
vegetation in the vicinity of the proposed project; the expected impacts on these
resources; and proposed mitigation measures.56
Resource Report 4 requires the applicant to provide information necessary for the
Commission to consider the effect of a proposed project on cultural resources in
furtherance of the Commission’s obligations under section 106 of the National Historic
Preservation Act (NHPA).57

54

18 CFR 380.16(c) (2021).
Id. 380.16(d).
56
Id. 380.16(e).
57
Id. 380.16(f).
55

Docket No. RM22-7-000

- 29 -

Resource Report 5 requires the applicant to describe the socioeconomic impact
area and to identify and quantify the impacts of constructing and operating the proposed
project on factors affecting towns and counties in the project vicinity.58
Resource Report 6 requires the applicant to describe geological resources and
hazards in the project area that might be directly or indirectly affected by the proposed
facility or may place the proposed facility at risk, the potential effects of those hazards on
the facility, and the methods to reduce the effects or risks.59
Resource Report 7 requires the applicant to describe the soils that will be affected
by the proposed project and measures proposed to minimize or avoid impacts.60
Resource Report 8 requires the applicant to provide information concerning the
uses of land in the project area and proposed mitigation measures to protect and enhance
existing land use.61
Resource Report 9 requires the applicant to describe alternatives to the project,
including the “no action” alternative, and to compare the environmental impacts of such
alternatives.62
Resource Report 10 requires the applicant to address reliability and safety
considerations, including the potential hazard to the public from the proposed facilities
resulting from accidents or natural catastrophes; how these events would affect

58

Id. 380.16(g).
Id. 380.16(h).
60
Id. 380.16(i).
61
Id. 380.16(j).
62
Id. 380.16(k).
59

Docket No. RM22-7-000

- 30 -

reliability; and the procedures and design features employed to reduce potential
hazards.63
Finally, Resource Report 11 requires the applicant to provide design and
engineering data, including general design and engineering drawings of all major project
structures, and a supporting design report.64
As explained above, the Fourth Circuit’s 2009 Piedmont decision vacated Order
No. 689’s amendments to the Commission’s NEPA regulations because the court found
that the Commission had failed to consult with CEQ prior to issuing the revised
regulations.65 Notwithstanding the Fourth Circuit’s vacatur, the NEPA amendments set
forth in Order No. 689 are still reflected in 18 CFR Part 380. We seek comment on the
whole of the Commission’s NEPA regulations pertaining to electric transmission
facilities, as well as the specific proposed changes to those regulations described further
below. The Commission will consult with CEQ on the proposed changes to its NEPA
regulations described below as well as those originally implemented by Order No. 689.
1.

Tribal Resources Resource Report

The Commission recognizes the unique relationship between the United States and
Indian Tribes, acknowledges its trust responsibility to Indian Tribes, and endeavors to
work with tribes on a government-to-government basis, seeking to address the effects of
proposed projects on Tribal rights and resources through consultation.66 To evaluate the
effects of proposed transmission facilities on Tribal rights and resources, the

63

Id. 380.16(l).
Id. 380.16(m).
65
See supra P 11.
66
18 CFR 2.1c (2021).
64

Docket No. RM22-7-000

- 31 -

Commission’s existing regulations require an applicant to submit information describing
the project’s effects on Tribes, Tribal lands, and Tribal resources as part of the Land use,
recreation, and aesthetics resource report.67 Specifically, the applicant must identify
Tribes that may attach religious and cultural significance to historic properties within the
right-of-way or in the project vicinity;68 provide available information on traditional
cultural and religious properties;69 and ensure that specific site or location information,
disclosure of which will create a risk of harm, theft, or destruction or violate Federal law,
is not disclosed.70
The Commission proposes to relocate the existing Tribal resource-related
information requirements to a new, standalone resource report, Resource Report 6—
Tribal resources, in proposed § 380.16(h). In addition to consolidating the existing
requirements in a new resource report,71 we also propose to require an applicant to
identify potentially-affected Tribes (proposed § 380.16(h)(1)); describe the impacts of
project construction, operation, and maintenance on Tribes and Tribal interests, including
impacts related to enumerated resource areas (proposed § 380.16(h)(2)); and describe
project impacts that may affect Tribal interests that are not necessarily associated with
particular resource areas (e.g., treaties, Tribal practices, or agreements) (proposed
§ 380.16(h)(3)). The Commission believes this information is necessary to fully evaluate

67

See id. § 380.16(j)(5).
Id. § 380.16(j)(5)(i).
69
Id.
70
Id. § 380.16(j)(5)(ii).
71
See proposed §§ 380.16(h)(4)-(5).
68

Docket No. RM22-7-000

- 32 -

the effects of a proposed project in furtherance of the Commission’s trust responsibility
and our statutory obligations under the FPA and NEPA.
2.

Environmental Justice Resource Report

In conducting NEPA reviews of proposed transmission facilities, the Commission
intends to follow the instruction of Executive Orders 12898,72 14008,73 and 13985,74 as
described above, and relevant CEQ guidance75 and EPA’s Promising Practices report76
on assessing impacts on environmental justice communities under NEPA.77 Section
380.16 does not currently require an applicant to submit information on the potential
project impacts on environmental justice communities. Therefore, the Commission

72

E.O. 12898, 59 FR 7629 (Feb. 16, 1994). While the Commission is not one
of the specified agencies in Executive Order 12898, the Commission nonetheless
intends to address environmental justice in its analysis, in accordance with our governing
regulations and statutory duties. 16 U.S.C. 824p(b)(3); 18 CFR 380.16(g) (2021)
(requiring applicants to submit information about the socioeconomic impact area of a
project for the Commission’s consideration during NEPA review); see also FERC,
Guidance Manual for Environmental Report Preparation at 4-76 to 4-82 (Feb. 2017),
https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf
(providing guidance for preparing Resource Report 5—Socioeconomics, including
addressing project effects on environmental justice communities, for applications filed
under the Natural Gas Act).
73
E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
74
E.O. 13985, 86 FR 7009 (Jan. 25, 2021).
75
CEQ’s Environmental Justice Guidance,
https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQEJGuidance.pdf. CEQ offers recommendations on how Federal agencies can provide
opportunities for effective community participation in the NEPA process, including
identifying potential effects and mitigation measures in consultation with affected
communities and improving the accessibility of public meetings, crucial documents, and
notices.
76
See generally Promising Practices, https://www.epa.gov/sites/default/files/201608/documents/nepa_promising_practices_document_2016.pdf.
77
NEPA requires the Commission before taking an action, to analyze, disclose, and take
a “hard look” at the potential environmental impacts of that action. See 42 U.S.C.
4332(2)(C); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
(discussing the twin aims of NEPA).

Docket No. RM22-7-000

- 33 -

proposes to add a new resource report, Resource Report 7—Environmental justice, in
proposed § 380.16(i). Specifically, the resource report would require the applicant to
identify environmental justice communities within the project’s area of potential impacts
(proposed § 380.16(i)(1));78 describe the impacts of project construction, operation, and
maintenance on environmental justice communities, including whether any impacts
would be disproportionately high and adverse (proposed § 380.16(i)(2)); discuss
cumulative impacts on environmental justice communities, including whether any
cumulative impacts would be disproportionately high and adverse (proposed
§ 380.16(i)(3)); and describe any proposed mitigation measures intended to avoid or
minimize impacts on environmental justice communities, including any community input
received on the proposed measures and how the input informed the proposed measures
(proposed § 380.16(i)(4)).
The Commission also proposes a corresponding addition to § 380.2, which sets
forth the definitions for the Commission’s NEPA regulations. Specifically, the
Commission proposes to define the term “environmental justice community” in proposed
§ 380.2(f). The proposed definition of the term “environmental justice community” is
identical to the definition that the Commission proposes to add to § 50.1.79
Finally, while we recognize that EPA and CEQ are in the process of updating their
guidance regarding environmental justice, we expect applicants to utilize the latest

78

As discussed, to identify environmental justice communities, Commission staff
currently reviews U.S. Census Bureau population data for the applicable location and
applies population thresholds provided by EPA and CEQ in their environmental justice
recommendations and guidance. See supra at note 40.
79
See supra P 32.

Docket No. RM22-7-000

- 34 -

guidance and data from CEQ, EPA, the Census Bureau, and other authoritative sources.
The Commission intends to review and incorporate any updated guidance from CEQ and
EPA in our future analyses, as appropriate.
3.

Air Quality and Environmental Noise Resource Report

Section 380.16(l)(7) requires applicants, as part of the existing Reliability and
safety resource report, to indicate the noise level generated by the proposed transmission
line and compare the noise level to any known noise ordinances for the zoning districts
through which the line will pass. Section 380.16 does not currently require information
on proposed project emissions and the corresponding effects on air quality and the
environment.
To fully evaluate the effects of a proposed project in furtherance of our obligations
under NEPA,80 the Commission believes additional information on emissions, air quality,
and environmental noise is necessary. Therefore, the Commission proposes to add a new
resource report, Resource Report 11—Air quality and environmental noise, in proposed
§ 380.16(m). Proposed Resource Report 11 would require the applicant to estimate
emissions from the proposed project and the corresponding impacts on air quality and the
environment, estimate the impact of the proposed project on the noise environment, and
describe proposed measures to mitigate the impacts. Consistent with the Commission’s
requirements for natural gas compressor stations,81 we also propose to establish a noise

As noted above, NEPA requires the Commission to take a “hard look” at the
environmental impacts of a proposed action. See 42 U.S.C. 4332(2)(C); Balt. Gas &
Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. at 97.
81
18 CFR 380.12(k)(4)(v)(A) (2021).
80

Docket No. RM22-7-000

- 35 -

limit for proposed substations and appurtenant facilities at pre-existing noise-sensitive
areas, such as schools, hospitals, or residences.
Under proposed § 380.16(m)(1), the Air quality and environmental noise resource
report must describe the existing air quality in the project area, indicate if any project
facilities are located within a designated nonattainment or maintenance area under the
Clean Air Act,82 and provide the distance from the project facilities to any Class I area in
the project vicinity. Under proposed § 380.16(m)(3), the resource report must estimate
emissions from the proposed project and the corresponding impacts on air quality and the
environment. Specifically, the applicant must provide the reasonably foreseeable
emissions from construction, operation, and maintenance of the project facilities; provide
a comparison of emissions with applicable General Conformity thresholds (40 CFR part
93) for each designated nonattainment or maintenance area; identify the corresponding
impacts on communities and the environment in the project area; and describe any
proposed mitigation measures to control emissions.
Under proposed § 380.16(m)(2), the resource report must, for proposed
substations and appurtenant facilities, quantitatively describe existing noise levels at
nearby noise-sensitive areas. Under proposed § 380.16(m)(4), the resource report must
provide a quantitative estimate of project operation (including proposed transmission
lines, substations, and other appurtenant facilities) on noise levels. The operational noise
estimates must demonstrate that the proposed project will comply with applicable State
and local noise regulations and that noise attributable to any proposed substation or

82

42 U.S.C. 7401 et seq.

Docket No. RM22-7-000

- 36 -

appurtenant facility does not exceed a day-night sound level (Ldn) of 55 dBA at any preexisting noise-sensitive area.83 Additionally, the resource report must describe the impact
of proposed construction activities on the noise environment and any proposed mitigation
measures to reduce noise impacts.
4.

Visual Resources

Section 380.16(j)(11) requires applicants, as part of the existing Land use,
recreation, and aesthetics resource report, to describe the visual characteristics of the
lands and waters affected by the project, including how the transmission line facilities
will impact the visual character of the project right-of-way and surrounding vicinity and
related mitigation measures. The Commission’s existing regulations encourage, but do
not require, applicants to supplement this description with visual aids.
The Commission believes that more specific information is needed to evaluate the
effects of the proposed project facilities on visual resources. Above ground high-voltage
transmission lines may cause substantial visual contrast and be a major focus for viewer
attention. To assess visual impacts of infrastructure projects, including high-voltage
transmission lines, Commission staff has, in some cases, used the Bureau of Land
Management’s Visual Resource Management methodology,84 and other agencies have
used the Federal Highway Administration’s Visual Impact Assessment for Highway

83

The EPA has indicated that a day-night noise level of 55 decibels on the A-weighted
scale protects the public from indoor and outdoor activity interference. The Commission
has adopted this criterion and uses it to evaluate the potential noise impact from operation
of natural gas compressor facilities. Elba Express Co., L.L.C., 141 FERC ¶ 61,027, at P
21 n.12 (2012). We think it is appropriate to use this same criterion to evaluate the
potential noise impact from operation of substations and appurtenant facilities.
84
See, e.g., Final Environmental Impact Statement for the Swan Lake North Pumped
Storage Project (P-13318-003).

Docket No. RM22-7-000

- 37 -

Projects.85 The Commission seeks comment on whether either of these tools, or any
other tools, are appropriate for our analysis. Additionally, we believe that visual aids are
necessary to support this evaluation. Therefore, in proposed § 380.16(l)(10), we propose
to require the applicant to identify the area of potential visual effects from the proposed
project; describe any visually sensitive areas, visual classifications, and key viewpoints in
the project vicinity; and provide visual aids to support the evaluation of visual impacts
from the proposed project.
5.

Additional Proposed Revisions to 18 CFR 380.16

Because the Commission proposes to add to § 380.16 three new resource reports
(Tribal resources, Environmental justice and Air quality and environmental noise), we
propose to redesignate all resource reports after Resource Report 5—Socioeconomics as
follows: Resource Report 6—Tribal resources (proposed § 380.16(h)); Resource Report
7—Environmental justice (proposed § 380.16(i)); Resource Report 8—Geological
resources (proposed § 380.16(j)); Resource Report 9—Soils (proposed § 380.16(k));
Resource Report 10—Land use, recreation, and aesthetics (proposed § 380.16(l));
Resource Report 11—Air quality and environmental noise (proposed § 380.16(m));
Resource Report 12—Alternatives (proposed § 380.16(n)); Resource Report 13—
Reliability and safety (proposed § 380.16(o)); and Resource Report 14—Design and
engineering (proposed § 380.16(p)).

85

See, e.g., Final Environmental Impact Statement for the Susquehanna to Roseland
500kv Transmission Line Right-of-Way and Special Use Permit at 588,
https://parkplanning.nps.gov/document.cfm?documentID=49285&parkID=220&projectI
D=25147.

Docket No. RM22-7-000

- 38 -

In addition to the proposed addition of three new resource reports and the
proposed changes to the visual resources requirements described above, the Commission
proposes revisions throughout § 380.16. We discuss the main substantive revisions
below.
In § 380.16(b)(3), we propose to clarify the scope of cumulative effects that must
be identified in each resource report for consistency with the definition of cumulative
effects in CEQ’s NEPA regulations.86
In § 380.16(c)(2), we propose to revise Resource Report 1—General project
description to more clearly identify the types of facilities that must be depicted on the
topographic maps and aerial images or photo-based alignment sheets. We also propose to
add requirements to describe any proposed horizontal directional drilling and pile driving
that may be necessary (§ 380.16(c)(3)), indicate the days of the week and times of the day
during which construction activities would occur, and describe any proposed nighttime
construction activities (§ 380.16(c)(4)).
In § 380.16(d)(6), the Commission proposes to add a requirement that Resource
Report 2—Water use and quality describe the impact of proposed land clearing and
vegetation management practices on water resources. In § 380.16(e), the Commission
proposes to clarify that Resource Report 3—Fish, wildlife, and vegetation must describe
potential impacts on interior forest (§ 380.16(e)(3)), as well as the impact of proposed
land clearing and vegetation management practices on fish, wildlife, and vegetation
(§ 380.16(e)(4)).

86

40 CFR 1508.1(g)(3) (2021).

Docket No. RM22-7-000

- 39 -

In § 380.16(k)(4), the Commission proposes to add a requirement that Resource
Report 9—Soils describe any proposed mitigation measures intended to reduce the
potential for adverse impacts to soils or agricultural productivity.
In § 380.16(l)(4), the Commission proposes to add a requirement that Resource
Report 10—Land use, recreation, and aesthetics identify the area of direct effect of the
proposed facilities on interior forest. The Commission also proposes to: (1) clarify the
scope of facilities (e.g., buildings, electronic installations, airstrips, airports, and
heliports) in the project vicinity that must be identified; (2) clarify the corresponding
requirements to depict such facilities on the maps and photographs in Resource Report 1
(§ 380.16(l)(5)); and (3) require copies of any consultation with the Federal Aviation
Administration (§ 380.16(l)(5)(iii)).
In § 380.16(o)(3), the Commission proposes to add a requirement that Resource
Report 13—Reliability and safety include a discussion of any proposed measures
intended to ensure that the facilities proposed by the applicant would be resilient against
future climate change impacts. We also propose to clarify the existing requirement that
the Reliability and safety resource report discuss contingency plans for maintaining
service or reducing downtime by adding that such contingency plans should ensure that
the proposed facilities would not adversely affect the bulk electric system in accordance
with applicable North American Electric Reliability Corporation reliability standards
(§ 380.16(o)(4)). Finally, given the addition of new Resource Report 11—Air quality
and environmental noise, the Commission proposes to eliminate from the Reliability and
safety resource report the now redundant requirement that the applicant must indicate the
noise level generated by the transmission line.

Docket No. RM22-7-000

- 40 -

For all of the proposed revisions discussed above, we seek comment on, as
appropriate, whether the Commission has authority to impose such changes and, if it
does, whether it should impose such changes. We also propose minor, non-substantive
edits throughout § 380.16. These proposed revisions are intended to clarify or streamline
existing requirements, to correct grammatical errors and cross-references, and to maintain
consistency.
6.

Proposed Revisions to 18 CFR 380.13 and 380.14

Finally, the Commission also proposes to amend §§ 380.13 (Compliance with the
Endangered Species Act) and 380.14 (Compliance with the NHPA) to add crossreferences to the appropriate paragraphs of § 380.16. We believe the prior omission of
such cross-references to be an oversight. Section 380.14 also contains a proposed
revision to correct the legal citation for section 106 of the NHPA,87 following the act’s
recodification in title 54 of the U.S. Code.
III.

Information Collection Statement
The Paperwork Reduction Act88 requires each Federal agency to seek and obtain

the Office of Management and Budget’s (OMB) approval before undertaking a collection
of information directed to ten or more persons or contained in a rule of general
applicability. OMB regulations require approval of certain information collection
requirements contemplated by proposed rules.89 Upon approval of a collection of
information, OMB will assign an OMB control number and an expiration date.

87

54 U.S.C. 306108.
44 U.S.C. 3501-3521.
89
See 5 CFR 1320.11 (2021).
88

Docket No. RM22-7-000

- 41 -

Respondents subject to the filing requirements of a rule will not be penalized for failing
to respond to the collection of information unless the collection of information displays a
valid OMB control number.
Public Reporting Burden: In this NOPR, the Commission proposes to revise its
regulations governing applications for permits to site transmission facilities under section
216 of the FPA. This proposed rule would modify certain reporting and recordkeeping
requirements included in FERC-729 (OMB Control No. 1902-0239).90
The proposed revisions to the Commission’s regulations associated with the
FERC-729 information collection are intended to ensure consistency with section 216 of
the FPA, as amended by the IIJA. The Commission also proposes revisions to modernize
certain regulatory requirements and to incorporate other updates and clarifications to
provide for the efficient and timely review of permit applications. Several of the
proposed revisions have information collection implications. For example, the
Commission proposes to require an applicant to:
• maintain an affected landowner contact log, provide certain information to
affected landowners, file an affirmative statement with the Commission indicating
the applicant’s intent to comply with the Applicant Code of Conduct, and include
compliance updates as part of the monthly status reports required during the prefiling process;91

FERC-729 includes the reporting and recordkeeping requirements for “Electric
Transmission Facilities.”
91
These requirements would only apply to applicants who elect to comply with the
Applicant Code of Conduct set forth in proposed § 50.12.
90

Docket No. RM22-7-000

- 42 -

• provide additional congestion and system analysis information during the prefiling process and as part of the application;
• develop and file an environmental justice public engagement plan describing
completed and planned targeted outreach efforts during the pre-filing process and
after an application has been submitted;
• develop and file a new resource report describing the proposed project’s impacts
on Tribal resources;
• develop and file a new resource report describing the proposed project’s impacts
on environmental justice communities;
• develop and file a new resource report describing the proposed project’s impact on
air quality and environmental noise;
• provide additional information describing the proposed project’s visual impacts;
and
• provide additional information as part of the following existing resource reports:
General project description; Water use and quality; Fish, wildlife, and vegetation;
Soils; Land use, recreation, and aesthetics; and Reliability and safety.
These proposed revisions would represent an increase in information collection
requirements and burden for FERC-729.
The Commission recognizes that some of the estimates for the information
collection activities proposed in this NOPR are novel. Therefore, the Commission seeks
comments on the burden and costs associated with the requirements contained in this
NOPR.

Docket No. RM22-7-000

- 43 -

The estimated burden and cost for the requirements contained in this NOPR
follow.
Annual Changes Proposed by the NOPR in Docket No. RM22-7-000
No. of
Avg. Burden
Total Annual
No. of
Total No. of
Hrs. & Cost
Responses92
Burden
Hours &
Respondents
Responses
Per Response93
per
Total Annual Cost
(1)
(1)X(2)=(3)
Respondent
(3)X(4)=5
(4)
(2)
Current FERC 729 Collection
FERC-729
1
Applicant Code
of Conduct94
Environmental
Justice Public
Engagement
Plan
Congestion and
System
Analysis Data96
Other Updates
to 18 CFR pt.
5097

92

1
1
Proposed Revisions in RM22-7-000

9,600 hrs.
$873,600

9,600 hrs.
$873,600

195

1

1

136 hrs;
$12,376

136 hrs.;
$12,376

1

1

1

24 hrs.;
$2,184

24 hrs.;
$2,184

1

1

1

160 hrs.;
$14,560

160 hrs.;
$14,560

1

1

1

28 hrs.;
$2,548

28 hrs.;
$2,548

We consider the filing of an application, including the mandatory pre-filing
information, to be a “response.”
93
The estimates for cost per response are derived using the following formula: Average
Burden Hours per Response * $91 per Hour = Average Cost per Response.
The hourly cost figure is the FY2022 FERC average annual salary plus benefits
($188,992/year or $91/hour). Commission staff estimates that industry costs for salary
plus benefits are similar to Commission costs.
94
Notwithstanding that compliance with the Applicant Code of Conduct is voluntary, we
are providing the estimated burden hours associated with such compliance.
95
After implementation of this proposed rule, we estimate one application for a permit to
site electric transmission facilities will be filed per year.
96
This category covers the proposed updates to the congestion and system analysis data
that an applicant must provide during the pre-filing process and as part of the application
in Exhibit H, System analysis data.
97
This category covers additional proposed updates to part 50 of the Commission’s
regulations that involve minor increases in burden (e.g., adding an interactive mapping
feature to an applicant’s project website and including additional material in the project
notifications mailed to affected landowners) as well as a reduction in burden associated
with eliminating the requirement that an applicant provide seven paper copies of an
application, exhibits, and other submittals.

Docket No. RM22-7-000

- 44 -

Annual Changes Proposed by the NOPR in Docket No. RM22-7-000
No. of
Avg. Burden
Total Annual
No. of
Total No. of
Hrs. & Cost
Responses92
Burden
Hours &
Respondents
Responses
Per Response93
per
Total Annual Cost
(1)
(1)X(2)=(3)
Respondent
(3)X(4)=5
(4)
(2)
Resource
Report: Tribal
Resources
Resource
Report:
Environmental
Justice
Resource
Report: Air
Quality &
Environmental
Noise
Information on
Visual Impacts
Other Updates
to 18 CFR pt.
38098
TOTAL

1

1

1

40 hrs.;
$3,640

40 hrs.;
$3,640

1

1

1

80 hrs.;
$7,280

80 hrs.;
$7,280

1

1

1

1

1

1

296 hrs.;
$26,936
100 hrs.;
$9,100

296 hrs.;
$26,936
100 hrs.;
$9,100

1

1

1

148 hrs.;
$13,468

148 hrs.;
$13,468
1,012 hrs.;
$92,092

11

Titles: FERC-729 - Electric Transmission Facilities.
Action: Revisions to information collection FERC-729.
OMB Control Nos.: 1902-0238 (FERC-729).
Respondents: Entities proposing to construct electric transmission facilities
pursuant to the Commission’s authority under section 216 of the FPA.
Frequency of Information: Ongoing.
Necessity of Information: The new information collection requirements are
necessary for the Commission to carry out its responsibilities under the FPA, as amended

98

This category covers a variety of non-substantial proposed updates to § 380.16 of the
Commission’s regulations that, if adopted, would require an applicant to develop and
submit additional information as part of the following resource reports: General project
description; Water use and quality; Fish, wildlife, and vegetation; Soils; Land use,
recreation, and aesthetics; and Reliability and safety.

Docket No. RM22-7-000

- 45 -

by the IIJA, and NEPA. The required information would enable the Commission to
review the features of the proposed project and determine whether the proposed project
meets the statutory criteria enumerated in section 216(b) of the FPA. In addition, the
proposed revisions to the Commission’s mandatory pre-filing process that would require
certain information to be filed earlier in the process would help ensure that an application
can be acted on no later than one year after the date of filing in compliance with section
216(h)(4)(B). The revised regulations would affect only the number of entities that
would pursue a permit to site electric transmission facilities.
Internal Review: The Commission has reviewed the proposed revisions and has
determined that they are necessary. These requirements conform to the Commission’s
need for efficient information collection, communication, and management within the
energy industry. The Commission has assured itself, by means of internal review, that
there is specific, objective support for the burden estimates associated with the
information collection requirements.
Interested persons may obtain information on the reporting requirements by
contacting the Federal Energy Regulatory Commission, 888 First Street, NE,
Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by
email to [email protected] or by phone (202) 502-8663.
Comments concerning the collections of information and the associated burden
estimates may also be sent to: Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th Street, NW, Washington, DC 20503 [Attention:
Desk Officer for the Federal Energy Regulatory Commission]. Due to security concerns,
comments should be sent electronically to the following email address:

Docket No. RM22-7-000

- 46 -

[email protected]. Comments submitted to OMB should refer to FERC729 (OMB Control No. 1902-0238).
IV.

Environmental Analysis
The Commission is required to prepare an Environmental Assessment or an

Environmental Impact Statement for any action that may have a significant effect on the
human environment.99 The Commission has categorically excluded certain actions from
this requirement as not having a significant effect on the human environment, including
the promulgation of rules that are clarifying, corrective, or procedural, or that do not
substantially change the effect of legislation or the regulations being amended.100
Because the actions proposed herein fall within this categorical exclusion, preparation of
an Environmental Assessment or an Environmental Impact Statement is not required.
V.

Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA)101 generally requires a description

and analysis of proposed rules that will have significant economic impact on a substantial
number of small entities. The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a proposed rule and minimize any significant
economic impact on a substantial number of small entities.102 In lieu of preparing a

99

Regs. Implementing the Nat’l Env’l Pol’y Act of 1969, Order No. 486,
52 FR 47897 (Dec. 10, 1987), FERC Stats. & Regs. ¶ 30,783 (1987) (cross-referenced
at 41 FERC ¶ 61,284).
100
18 CFR 380.4(a)(2)(ii) (2021).
101
5 U.S.C. 601-612.
102
Id. 603(c).

Docket No. RM22-7-000

- 47 -

regulatory flexibility analysis, an agency may certify that a proposed rule will not have a
significant economic impact on a substantial number of small entities.103
The Small Business Administration’s (SBA) Office of Size Standards develops the
numerical definition of a small business.104 The SBA size standard for electric utilities is
based on the number of employees, including affiliates.105 Under SBA’s size standards, a
transmission owner covered under the category of Electric Bulk Power Transmission and
Control (NAICS code 221121)106 is small if, including its affiliates, it employs 500 or
fewer people.107
In Order No. 689, the Commission expected that entities seeking approval for
transmission siting projects under FPA section 216 would be major transmission utilities
capable of financing complex and costly transmission projects.108 At that time, the
Commission anticipated that the high cost of constructing transmission facilities would
preclude entry into this field by small entities as defined by the RFA.109 Though the SBA
size standard for electric utilities has changed from megawatt hours to number of
employees since Order No. 689 was issued, we continue to find it unlikely that small
entities in any number, let alone a substantial number, will pursue the permitting of

103

Id. 605(b).
13 CFR 121.101 (2021).
105
Id. 121.201.
106
The North American Industry Classification System (NAICS) is an industry
classification system that Federal statistical agencies use to categorize businesses for the
purpose of collecting, analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry Classification System,
https://www.census.gov/eos/www/naics/.
107
13 CFR 121.201 (Sector 22 - Utilities).
108
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at P 73.
109
Id.
104

Docket No. RM22-7-000

- 48 -

transmission projects before the Commission. Since Order No. 689, only Southern
California Edison, which would not qualify as a small entity under the SBA’s current size
standards, has participated in the Commission’s pre-filing process for applications to site
transmission facilities under section 216. To date, the Commission has not received any
applications for permits to site transmission facilities under section 216.
Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that
this proposed rule would not have a significant economic impact on a substantial number
of small entities.
VI.

Comment Procedures
The Commission invites interested persons to submit comments on the matters and

issues proposed in this notice to be adopted, including any related matters or alternative
proposals that commenters may wish to discuss. Comments are due [INSERT DATE
90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
Comments must refer to Docket No. RM22-7-000 and must include the commenter’s
name; the organization they represent, if applicable; and their address in their comments.
All comments will be placed in the Commission’s public files and may be viewed,
printed, or downloaded remotely as described in the Document Availability section
below. Commenters on this proposal are not required to serve copies of their comments
on other commenters.
The Commission encourages comments to be filed electronically via the eFiling
link on the Commission’s website at http://www.ferc.gov. The Commission accepts most
standard word processing formats. Documents created electronically using word

Docket No. RM22-7-000

- 49 -

processing software must be filed in native applications or print-to-PDF format and not in
a scanned format. Commenters filing electronically do not need to make a paper filing.
Commenters that are not able to file comments electronically may file an original
of their comment by U.S. Postal Service mail or by courier or other delivery services.
For submission sent via U.S. Postal Service only, filings should be mailed to: Federal
Energy Regulatory Commission, Office of the Secretary, 888 First Street, NE,
Washington, DC 20426. Submission of filings other than by U.S. Postal Service should
be delivered to: Federal Energy Regulatory Commission, 12225 Wilkins Avenue,
Rockville, MD 20852.
VII.

Document Availability
In addition to publishing the full text of this document in the Federal Register,

the Commission provides all interested persons an opportunity to view and/or print the
contents of this document via the Internet through the Commission’s Home Page
(http://www.ferc.gov). At this time, the Commission has suspended access to the
Commission’s Public Reference Room due to the President’s March 13, 2020
proclamation declaring a National Emergency concerning the Novel Coronavirus Disease
(COVID-19).
From the Commission’s Home Page on the Internet, this information is available
on eLibrary. The full text of this document is available on eLibrary in PDF and
Microsoft Word format for viewing, printing, and/or downloading. To access this
document in eLibrary, type the docket number excluding the last three digits of this
document in the docket number field.

Docket No. RM22-7-000

- 50 -

User assistance is available for eLibrary and the Commission’s website during
normal business hours from the Commission’s Online Support at (202) 502-6652 (toll
free at 1-866-208-3676) or email at [email protected], or the Public Reference
Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at
[email protected].
List of Subjects
18 CFR Part 50
Administrative practice and procedure, Electric power, Reporting and
recordkeeping requirements.
18 CFR Part 380
Environmental impact statements, Reporting and recordkeeping requirements.
By direction of the Commission. Commissioner Danly is concurring with a separate
statement attached.
Commissioner Christie is concurring with separate
statement attached.
(SEAL)

Issued December 15, 2022
Debbie-Anne A. Reese,
Deputy Secretary.

Docket No. RM22-7-000

- 51 -

In consideration of the foregoing, the Commission proposes to amend Parts 50 and
380, Chapter I, Title 18, Code of Federal Regulations, as follows.
PART 50 – APPLICATIONS FOR PERMITS TO SITE INTERSTATE
ELECTRIC TRANSMISSION FACILITIES
1. The authority citation for part 50 continues to read as follows:
Authority: 16 U.S.C. 824p; DOE Delegation Order No. 00-004.00A.
2. Amend § 50.1 as follows:
a. Add a definition in alphabetical order for “Environmental justice community”;
b. Remove the words “special use authorization” in the definition of “Federal
authorization” and add in its place the words “special use authorizations”;
c. Add a definition in alphabetical order for “Indian Tribe”; and
d. Revise the definitions of “National interest electric transmission corridor”,
“Permitting entity”, and “Stakeholder”.
The additions and revisions read as follows:
§ 50.1 Definitions.
* * * * *
Environmental justice community means any disadvantaged community that has
been historically marginalized and overburdened by pollution. Environmental justice
communities include, but may not be limited to, minority populations, low-income
populations, or indigenous peoples.
* * * * *

Docket No. RM22-7-000

- 52 -

Indian Tribe means an Indian Tribe that is recognized by treaty with the United
States, by Federal statute, or by the U.S. Department of the Interior in its periodic listing
of Tribal governments in the Federal Register in accordance with 25 CFR 83.6(a), and
whose Tribal interests may be affected by the development and operation of the proposed
transmission facilities.
National interest electric transmission corridor means any geographic area that is
experiencing electric energy transmission capacity constraints or congestion that
adversely affects consumers or is expected to experience such energy transmission
capacity constraints or congestion, as designated by the Secretary of Energy.
Permitting entity means any Federal or State agency, Indian Tribe, or multistate
entity that is responsible for issuing separate authorizations pursuant to Federal law that
are required to construct electric transmission facilities in a national interest electric
transmission corridor.
Stakeholder means any Federal, State, interstate, or local agency; any Tribal
government; any affected landowner; any environmental justice community member; or
any other interested person or organization.
* * * * *
§ 50.2 [Amended]
3. Amend § 50.2 as follows:
a. Remove the word “tribes” in the third sentence of paragraph (a) and add in its
place the word “Tribes”; and
b. Remove the word “which” in paragraph (c) and add in its place the word “that”.
4. Amend § 50.3 by revising paragraph (b) to read as follows:

Docket No. RM22-7-000

- 53 -

§ 50.3 Applications/pre-filing; rules and format.
* * * * *
(b) Applications, amendments, and all exhibits and other submissions required to
be furnished by an applicant to the Commission under this part must be submitted in
electronic format.
* * * * *
5. Amend § 50.4 as follows:
a. Revise paragraphs (a)(1) through (3);
b. Add paragraph (a)(4); and
c. Revise the first sentence of paragraph (c)(1) introductory text and revise
paragraphs (c)(1)(ii) and (c)(2) through (4).
The revisions and addition read as follows:
§ 50.4 Stakeholder participation.
* * * * *
(a) * * *
(1) Identifies specific tools and actions to facilitate stakeholder communications
and public information, including an up-to-date project website with an interactive
mapping component, and a readily accessible, single point of contact for the applicant;
(2) Lists all central locations in each county throughout the project area where the
applicant will provide copies of all its filings related to the proposed project;
(3) Includes a description and schedule explaining how the applicant intends to
respond to requests for information from the public, permitting entities, and other legal
entities with local authorization requirements; and

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(4) Includes an Environmental Justice Public Engagement Plan that addresses all
targeted outreach to identified environmental justice communities. This plan must
summarize comments received from potentially impacted environmental justice
communities during any previous outreach activities and describe planned targeted
outreach activities with such communities during the pre-filing process and after the
filing of an application, including efforts to identify, engage, and accommodate nonEnglish speaking groups or linguistically isolated communities. This plan must also
describe how the applicant will conduct outreach to environmental justice communities
about any potential mitigation.
* * * * *
(c) * * *
(1) The applicant must make a good faith effort to notify all: affected landowners;
landowners with a residence within a quarter mile of the edge of the construction rightof-way of the proposed project; municipalities in the project area; permitting entities;
other local, State, Tribal, and Federal governments and agencies involved in the project;
electric utilities and transmission owners and operators that are, or may be, connected to
the proposed transmission facilities; any known individuals or organizations that have
expressed an interest in the State siting proceeding; and any other individuals or
organizations that have expressed to the applicant, or its representatives, an interest in the
proposed project. * * *
* * * * *
(ii) By twice publishing a notice of the pre-filing request and application filings, in
a daily, weekly, and/or Tribal newspaper of general circulation in each county in which

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the project is located, no later than 14 days after the date that a docket number is assigned
for the pre-filing process or to the application.
(2) Contents of participation notice. (i) Any pre-filing request notification sent by
mail or published in a newspaper must, at a minimum, include:
(A) The docket number assigned to the proceeding;
(B) The most recent edition of the Commission’s pamphlet Electric Transmission
Facilities Permit Process. The newspaper notice need only refer to the pamphlet and
indicate that it is available on the Commission’s website;
(C) A description of the applicant and a description of the proposed project, its
location (including a general location map), its purpose, and the proposed project
schedule;
(D) Contact information for the applicant, including a local or toll-free telephone
number, the name of a specific contact person who is knowledgeable about the project,
and information on how to access the project website;
(E) Information on how to get a copy of the pre-filing information from the
applicant and the location(s) where copies of the pre-filing information may be found as
specified in paragraph (b) of this section;
(F) A copy of the Director’s notification of commencement of the pre-filing
process, the Commission’s Internet address, and contact information for the
Commission’s Office of Public Participation;
(G) Information explaining the pre-filing and application processes and when and
how to intervene in the application proceedings; and
(H) Information explaining that the Commission’s pre-filing and application

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processes are separate from any simultaneous State siting proceeding(s) and how to
participate in any such State siting proceeding(s).
(ii) In addition to the requirements of paragraph (c)(2)(i) of this section, any prefiling request notification sent by mail to an affected landowner must also include:
(A) A general description of the property the applicant will need from an affected
landowner if the project is approved;
(B) The most recent edition of the document entitled “Landowner Bill of Rights in
Federal Energy Regulatory Commission Electric Transmission Proceedings,” on its own
page(s) in at least 12-point font, legible, and contained within the first 10 pages of the
notification; and
(C) A brief summary of what specific rights the affected landowner has in
proceedings under the eminent domain rules of the relevant State.
(iii) The application notification must include the Commission’s notice issued
under § 50.9 and restate, or clearly identify the location of, the comment and intervention
instructions provided in the Commission’s notice.
(3) If, for any reason, a person or entity entitled to this notice has not yet been
identified when the notices under this paragraph (c) are sent or published, the applicant
must supply the information required under paragraphs (c)(2)(i) through (iii) of this
section, as applicable, when the person or entity is identified.
(4) If the notification is returned as undeliverable, the applicant must make a
reasonable attempt to find the correct address and re-send the notice.
* * * * *
6. Amend § 50.5 as follows:

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a. Revise paragraph (c) introductory text, the first sentence of paragraph (c)(3)
introductory text, paragraph (c)(3)(i), and the first sentence of paragraph (c)(5);
b. Add paragraphs (c)(8) and (9);
c. Revise paragraphs (d)(1)(i) and (e)(3)(i);
d. Remove paragraph (e)(3)(ii);
e. Redesignate paragraph (e)(3)(iii) as (e)(3)(ii);
f. Revise the first sentence of paragraph (e)(4);
g. Redesignate paragraphs (e)(7) and (8) as paragraphs (e)(9) and (10),
respectively;
h. Add new paragraphs (e)(7) and (8); and
i. Revise the first sentence of newly redesignated paragraph (e)(10).
The revisions and additions read as follows:
§ 50.5 Pre-filing procedures.
* * * * *
(c) Contents of the initial filing. An applicant’s pre-filing request cannot be filed
prior to the initial consultation and must include the following information:
* * * * *
(3) A list of the permitting entities responsible for conducting separate Federal
permitting and environmental reviews and authorizations for the project, including
contact names and telephone numbers, and a list of Tribal, State, and local entities with
authorization requirements. * * *
(i) How the applicant intends to account for each of the relevant entity’s
permitting and environmental review schedules, including its progress in the Department

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of Energy’s pre-application process; and
* * * * *
(5) A description of completed work, including contacting stakeholders, agency
and Tribal consultations, project engineering, route planning, environmental and
engineering contractor engagement, environmental surveys/studies, open houses, and any
work completed or actions taken in conjunction with a State proceeding. * * *
* * * * *
(8) A detailed description of how the proposed project will reduce capacity
constraints and congestion on the transmission system.
(9) A statement indicating whether the applicant intends to comply with the
Applicant Code of Conduct described in § 50.12, and, if not, how the applicant intends to
ensure good faith dealings with affected landowners.
(d) * * *
(1) * * *
(i) The notification will designate the third-party contractor, if applicable, and
* * * * *
(e) * * *
(3) * * *
(i) Provide project notification in compliance with the requirements of § 50.4(c);
and
* * * * *
(4) Within 30 days, submit a mailing list of all notifications made under paragraph
(e)(3) of this section, including the names of the Federal, State, Tribal, and local

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jurisdictions’ representatives. * * *
* * * * *
(7) Within 30 days, file supporting information showing how the proposed project
will reduce capacity constraints and congestion on the transmission system, including:
(i) Full report(s) of the System Impact Study for the proposed project;
(ii) For each transmission planning region that would be crossed by the proposed
project, the most recent Regional Transmission Plan; and
(iii) Expert witness testimony and other relevant information submitted with the
State siting application(s), where applicable.
(8) Within 30 days, file a draft Exhibit H – System analysis data required in §
50.7.
* * * * *
(10) On a monthly basis, file status reports detailing the applicant’s project
activities, including surveys, stakeholder communications, agency and Tribal meetings,
and updates on the status of other required permits or authorizations. * * *
* * * * *
7. Amend § 50.6 as follows:
a. Revise paragraph (b), the second sentence of paragraph (c), and paragraphs (d),
(e)(1), and (e)(3)(i) and (ii);
b. Add paragraph (e)(3)(iii); and
c. Revise paragraph (i).
The revisions and addition read as follows:
§ 50.6 Applications: general content.

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* * * * *
(b) A concise description of applicant’s existing operations, if applicable.
(c) * * * The description must, at a minimum: identify the proposed geographic
location of the principal project features and the planned routing of the transmission line;
contain the general characteristics of the transmission line, including voltage, types of
towers, point of receipt and point of delivery, and the geographic character of the area
traversed by the line; and be accompanied by an overview map of sufficient scale to show
the entire transmission route on one (or a few) 8.5 by 11-inch sheets.
(d) Verification that the proposed route lies within a national interest electric
transmission corridor designated by the Secretary of the Department of Energy under
section 216 of the Federal Power Act, including the date on which the relevant corridor
was designated.
(e) * * *
(1) A State in which the transmission facilities are to be constructed or modified
does not have the authority to approve the siting of the facilities or consider the interstate
benefits or interregional benefits expected to be achieved by the proposed construction or
modification of transmission facilities in the State;
* * * * *
(3) * * *
(i) Not made a determination on an application seeking approval pursuant to
applicable law;

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(ii) Conditioned its approval in such a manner that the proposed construction or
modification will not significantly reduce transmission capacity constraints or congestion
in interstate commerce or is not economically feasible; or
(iii) Denied an application seeking approval pursuant to applicable law.
* * * * *
(i) A full statement as to whether any other application to supplement or effectuate
the applicant’s proposal must be (or is to be) filed by the applicant, any of the applicant’s
customers, or any other person with any other Federal, State, Tribal, or other regulatory
body; and if so, the nature and status of each such application.
* * * * *
8. Amend § 50.7 as follows:
a. Revise the introductory text and paragraphs (g)(1)(i) and (vi), (g)(2)(ii) and (vi),
(g)(3)(iii), (g)(4)(iii), (g)(5) introductory text, (g)(6) introductory text, (g)(6)(ii), (g)(8),
(h)(1), the first sentence of paragraph (h)(2) introductory text, and paragraph (h)(2)(ii);
b. Remove paragraphs (h)(3) and (4);
c. Redesignate paragraphs (h)(5) and (6) as paragraphs (h)(3) and (4); and
d. Revise newly redesignated paragraphs (h)(3) and (4) and paragraphs (i)(2) and
(j).
The revisions read as follows:
§ 50.7 Applications: exhibits.
Each exhibit must contain a title page showing the applicant’s name, the title of
the exhibit, and the proper letter designation of the exhibit. If an exhibit is 10 or more
pages in length, it must include a table of contents citing (by page, section number, or

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subdivision) the component elements or matters contained in the exhibit.
* * * * *
(g) * * *
(1) * * *
(i) Name, point of receipt, and point of delivery of the project;
* * * * *
(vi) Line design features that minimize audible corona noise during fog/rain
caused by operation of the proposed facilities.
(2) * * *
(ii) Type of structures, including overhead and underground structures;
* * * * *
(vi) A list of the names of all new (and existing, if applicable) substations or
switching stations that will be associated with the proposed transmission line.
(3) * * *
(iii) Width of the right-of-way; and
* * * * *
(4) * * *
(iii) Conductor size, conductor type, and number of conductors per phase.
(5) If the proposed project includes an overhead transmission line, the following
additional information also must be provided:
* * * * *
(6) If an underground or underwater transmission line is proposed, the following
additional information also must be provided:

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* * * * *
(ii) Type of cable and a description of any required supporting equipment, such as
pressurizing plants;
* * * * *
(8) Any other data or information identified as a minimum requirement for the
siting of a transmission line in the State in which the facility will be located.
(h) * * *
(1) An analysis of the existing and expected capacity constraints and congestion
on the electric transmission system.
(2) Steady-state, short-circuit, and dynamic power flow cases, as applicable, used
to analyze the existing transmission system, proposed project, and future transmission
system under anticipated load growth, operating conditions, variations in power import
and export levels, generation additions and retirements, and additional transmission
facilities required for system reliability. * * *
* * * * *
(ii) State the assumptions, criteria, and guidelines upon which the models are
based and take into consideration transmission facility loading, planned and forecasted
forced outage rate for generation and transmission, generation dispatch scenarios, system
protection, and system stability.
(3) A concise analysis of how the proposed project will:
(i) Improve system reliability over the long and short term;
(ii) Impact long-term regional transmission expansion plans;
(iii) Impact congestion on the applicant’s entire system and neighboring systems;

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and
(iv) Incorporate any advanced technology design features, if applicable.
(4) Single-line diagrams, including existing system facilities identified by name
and circuit number, that show system transmission elements, in relation to the project and
other principal interconnected system elements, as well as power flow and loss data that
represent system operating conditions.
(i) * * *
(2) The estimated capital cost and estimated annual operations and maintenance
expense of each proposed mitigation measure.
* * * * *
(j) Exhibit J - Construction, operation, and management. A concise statement
providing arrangements for supervision, management, engineering, accounting, legal, or
other similar services to be rendered in connection with the construction, operation, and
maintenance of the project, if not to be performed by employees of the applicant,
including reference to any existing or contemplated agreements, together with a statement
showing any affiliation between the applicant and any parties to the agreements or
arrangements.
§ 50.8 [Amended]
9. Amend § 50.8 as follows:
a. Remove the word “applicant’s” in the second sentence of paragraph (b) and add
in its place the word “applicant”; and
b. Remove the comma directly following the word “rejected” in paragraph (c).
10. Amend § 50.9 by revising paragraph (b) to read as follows:

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§ 50.9 Notice of Application
* * * * *
(b) The notice will establish prompt and binding intermediate milestones and
ultimate deadlines for the review of, and Federal authorization decisions relating to, the
proposed facilities.
§ 50.11 [Amended]
11. Amend § 50.11 as follows:
a. Revise paragraph (a) and the second sentence of paragraph (b);
b. Add a sentence at the end of paragraph (d) introductory text and add paragraphs
(d)(1) and (2);
c. Remove the word “permitee” in the first sentence of paragraph (e) and add in its
place the word “permittee”;
d. Remove the word “Order” in the first sentence of paragraph (g) introductory
text and add in its place the word “order”; and
e. Remove the word “Orders” in paragraph (g)(2) and add in its place the word
“orders”.
The revisions and addition read as follows:
§ 50.11 General conditions applicable to permits.
(a) The following terms and conditions, along with others that the Commission
finds are required by the public interest, will attach to the issuance of each permit and to
the exercise of the rights granted under the permit.
(b) * * * Provided that, when an applicant files for rehearing of the order in
accordance with FPA section 313(a), the acceptance must be filed within 30 days after

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final disposition of the request for rehearing. * * *
* * * * *
(d) * * * Provided that, no authorization to proceed with construction activities
will be issued:
(1) Until the time for the filing of a request for rehearing under 16 U.S.C. 825l(a)
has expired with no such request being filed, or
(2) If a timely request for rehearing raising issues reflecting opposition to project
construction, operation, or need is filed, until:
(i) The request is no longer pending before the Commission;
(ii) The record of the proceeding is filed with the court of appeals; or
(iii) 90 days has passed after the date that the request for rehearing may be deemed
to have been denied under 16 U.S.C. 825l(a).
* * * * *
12. Add § 50.12 to read as follows:
§ 50.12 Applicant code of conduct for landowner engagement.
Under section 216(e)(1) of the Federal Power Act, any applicant that may, upon
receipt of a permit, seek to acquire the necessary right-of-way by the exercise of the right
of eminent domain must demonstrate to the Commission that it has made good faith
efforts to engage with landowners and other stakeholders early in the applicable
permitting process. An applicant’s commitment to and compliance with the Applicant
Code of Conduct in its communications with affected landowners during the permitting
process is one way to demonstrate to the Commission that such good faith efforts have
been made.

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(a) Applicant code of conduct. To promote good faith engagement with affected
landowners, applicants committing to comply with the Applicant Code of Conduct must:
(1) For the duration of the pre-filing and application review process, develop and
retain a log of discussions with affected landowners, organized by name and property
address, that includes:
(i) The name of the affected landowner;
(ii) The substance of the items discussed;
(iii) The nature of the contact (such as in-person, virtual meeting, telephone,
electronic mail);
(iv) The date of the contact; and
(v) The status of discussions with the affected landowner following the contact,
including any permissions granted, negotiations, or future meetings scheduled.
(2) In addition to the pre-filing request notification required by § 50.4(c)(1)(i) and
(ii), provide to each affected landowner, prior to, during, or immediately after the first
contact, a document that, at a minimum, includes: a description of the project, a
description of the Commission and its role, a map of the project route, and the
Landowner Bill of Rights in the form described in § 50.4(c)(2)(ii)(B). If the first contact
with the affected landowner is in-person, the applicant must offer to provide the affected
landowner at least one paper copy of the document. If the first contact with the affected
landowner is by telephone, text, or electronic mail, the applicant may provide the affected
landowner with a copy of the document by electronic means or by first class mail, at the
affected landowner’s preference. The applicant must review the provisions of the
document with the affected landowner upon request.

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(3) Ensure that any representative acting on the applicant’s behalf states their full
name, title, and employer, as well as the name of the applicant that they represent, at the
beginning of any discussion with an affected landowner, and provides the
representative’s contact information, including mailing address, telephone number, and
electronic mail address, prior to the end of the discussion.
(4) Ensure that all communications with affected landowners are factually correct.
The applicant must correct any statements made by it or any representative acting on its
behalf that it becomes aware were:
(i) Inaccurate when made; or
(ii) Have been rendered inaccurate based on subsequent events, within three
business days of discovery of any such inaccuracy.
(5) Ensure that communications with affected landowners do not misrepresent the
status of the discussions or negotiations between the parties.
(6) Provide affected landowners with updated contact information whenever an
applicant’s contact information changes.
(7) Communicate respectfully with affected landowners and avoid harassing,
coercive, manipulative, or intimidating communications or high-pressure tactics.
(8) Except as otherwise provided by State or local law, abide by an affected
landowner’s request to end the communication or for the applicant or its representative to
leave the affected landowner’s property.
(9) Except as otherwise provided by State or local law, obtain an affected
landowner’s permission prior to entering the property, including for survey or

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environmental assessment, and leave the property without argument or delay if the
affected landowner revokes permission.
(10) Refrain from discussing an affected landowner’s communications or
negotiations status with any other affected landowner.
(11) Provide the affected landowner with a copy of any appraisal that has been
prepared by, or on behalf of, the applicant for that affected landowner’s property, if any,
before discussing the value of the property in question.
(12) Ensure that any representative acting on the applicant’s behalf complies with
all provisions of the Applicant Code of Conduct described in this paragraph (a).
(b) Compliance with Applicant Code of Conduct. Applicants committing to
comply with the Applicant Code of Conduct must:
(1) File, as part of the pre-filing request required by § 50.5(c), an affirmative
statement that the applicant intends to comply with the Applicant Code of Conduct.
(2) Include, as part of the monthly status reports required by § 50.5(e)(10):
(i) An affirmation that the applicant and its representatives have, to the best of
their knowledge, complied with the Applicant Code of Conduct during the month in
question; or
(ii) A detailed explanation of any instances of non-compliance with the Applicant
Code of Conduct during the month in question and any remedial actions taken or
planned.
(3) Identify, in a filing with the Commission or as part of the monthly status
reports required by § 50.5(e)(10), any known instances of non-compliance that were not

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disclosed in prior monthly status reports and explain any remedial actions taken in the
current month to address instances of non-compliance occurring in prior months.
(c) Compliance with an alternative method. Applicants not committing to comply
with the Applicant Code of Conduct must:
(1) File, as part of the pre-filing request required by § 50.5(c):
(i) An affirmative statement that the applicant intends to rely on an alternative
method of demonstrating that it meets the good faith efforts standard;
(ii) A detailed explanation of the alternative method of demonstrating that it meets
the good faith efforts standard, including any commitments to record-keeping,
information-sharing, or other conduct;
(iii) An explanation of how the alternative method is equal to or superior to
compliance with the Applicant Code of Conduct as a means to ensure the good faith
efforts standard is met;
(iv) An explanation, for each component of the Applicant Code of Conduct with
which it does not comply, why it did not follow that component; and
(v) An explanation, for each component of the Applicant Code of Conduct with
which it does not comply, why the alternative method is an equal or better means to
ensure the good faith standard is met notwithstanding that deviation from the Applicant
Code of Conduct.
PART 380 – REGULATIONS IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
13. The authority citation for part 380 continues to read as follows:
Authority: 42 U.S.C. 4321-4370h, 7101-7352; E.O. 12009, 3 CFR 1978

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Comp., p. 142.
14. Amend § 380.2 by redesignating paragraphs (f) and (g) as paragraphs (g) and
(h) and adding new paragraph (f).
The addition reads as follows:
§ 380.2 Definitions and terminology.
* * * * *
(f) Environmental justice community means any disadvantaged community that
has been historically marginalized and overburdened by pollution. Environmental justice
communities include, but may not be limited to, minority populations, low-income
populations, or indigenous peoples.
* * * * *
§ 380.13 [Amended]
15. Amend § 380.13 in paragraph (b)(2)(i) by adding “or § 380.16, as applicable”
directly after the reference to “§ 380.12”.
§ 380.14 [Amended]
16. Amend § 380.14 in paragraph (a) introductory text as follows:
a. Remove the parenthetical reference to “16 U.S.C. 470(f)” in the first sentence
and adding, in its place, a parenthetical reference to “54 U.S.C. 306108”; and
b. Add the “or § 380.16(f), as applicable” directly after the reference to
“380.12(f)”.
17. Amend § 380.16 as follows:

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a. Revise the second sentence of paragraph (a)(1), revise paragraph (b)(3), revise
the first sentence of paragraph (c) introductory text and the first sentence of paragraph
(c)(1), and revise paragraphs (c)(2)(i) through (iii) and (c)(3) and (4);
b. Revise paragraph (d)(6) and the second sentence of paragraph (d)(7);
c. Revise paragraph (e)(3), the first two sentences of paragraph (e)(4), the first and
third sentences of paragraph (e)(5), and paragraphs (e)(6) through (8);
d. Revise paragraphs (f)(1)(i), (iii), (iv), and (v), (f)(2) introductory text, and the
first sentence of paragraph (f)(4);
e. Revise the first sentence of paragraph (g) introductory text and paragraphs
(g)(3) and (6);
f. Redesignate paragraphs (k) through (m) as paragraphs (n) through (p);
g. Redesignate paragraphs (h) through (j) as paragraphs (j) through (l);
h. Add new paragraphs (h) and (i);
i. Revise the heading and the second sentence of newly redesignated paragraph (j)
introductory text and revise newly redesignated paragraph (j)(3);
j. Revise the newly redesignated paragraph (k) heading and paragraphs (k)
introductory text and (k)(2) and (3);
k. Add paragraph (k)(4);
l. Revise newly redesignated paragraph (l);
m. Add new paragraph (m);
n. Revise the newly redesignated paragraph (n) heading and introductory text, the
second sentence of newly redesignated paragraph (n)(2)(i), and the second sentence of
newly redesignated paragraph (n)(2)(ii);

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o. Revise the newly redesignated paragraph (o) heading and introductory text,
newly redesignated paragraphs (o)(1) through (4), the first sentence of newly
redesignated paragraph (o)(5), and newly redesignated paragraph (o)(7); and
p. Revise the newly redesignated paragraph (p) heading, the second sentence of
newly redesignated paragraph (p) introductory text, the third sentence of newly
redesignated paragraph (p)(2), and newly redesignated paragraphs (p)(3)(i) and (iii) and
(p)(4).
The revisions and additions read as follows:

§ 380.16 Environmental reports for Section 216 Federal Power Act Permits.
(a) * * *
(1) * * * The environmental report must include the 14 resource reports and
related material described in this section.
* * * * *
(b) * * *
(3) Identify the effects of construction, operation (including malfunctions), and
maintenance, as well as cumulative effects resulting from the incremental effects of the
project when added to the effects of other past, present, and reasonably foreseeable
actions;
* * * * *
(c) * * * This report must describe facilities associated with the project; special
construction, operation, and maintenance procedures; construction timetables; future
plans for related construction; compliance with regulations and codes; and permits that

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must be obtained. * * *
(1) Describe and provide location maps of all project facilities (such as
transmission line towers, substations, and any appurtenant facilities) to be constructed,
modified, replaced, or removed, and related construction and operational support
activities and areas, such as maintenance bases, staging areas, communications towers,
power lines, and new access roads (roads to be built or modified). * * *
(2) * * *
(i) Current, original United States Geological Survey (USGS) 7.5–minute series
topographic maps, or maps of equivalent detail, covering at least a 0.5–mile-wide
corridor centered on the electric transmission facility centerline, with integer mileposts
identified, showing the location of rights-of-way, new access roads, other linear
construction areas, substations, and construction materials storage areas. Nonlinear
construction areas must be shown on maps at a scale of 1:3,600, or larger, keyed
graphically and by milepost to the right-of-way maps. The topographic maps must depict
the facilities identified under paragraph (l)(5) of this section, including any facilities
located outside of the 0.5-mile-wide corridor.
(ii) Original aerial images or photographs or photo-based alignment sheets based
on these sources, not more than one year old (unless older ones accurately depict current
land use and development) and with a scale of 1:6,000, or larger, showing the proposed
transmission line route and location of transmission line towers, substations and
appurtenant facilities, covering at least a 0.5-mile-wide corridor, and including mileposts.
The aerial images or photographs or photo-based alignment sheets must show all existing
transmission facilities located in the area of the proposed facilities and the facilities

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identified under paragraph (l)(5) of this section, including any facilities located outside of
the 0.5-mile-wide corridor. Older images/photographs/alignment sheets must be modified
to show any facilities not depicted in the original. Alternative formats (e.g., blue-line
prints of acceptable resolution) need prior approval by the environmental staff of the
Commission’s Office of Energy Projects.
(iii) In addition to the requirements under § 50.3(b) of this chapter, the applicant
must contact the environmental staff of the Office of Energy Projects regarding the need
for any additional copies of topographic maps and aerial images/photographs.
(3) Describe and identify, by milepost, proposed general construction and
restoration methods, and any special methods to be used in areas of rugged topography,
residential areas, active croplands, and sites where explosives are likely to be used.
Describe any proposed horizontal directional drilling and pile driving that may be
necessary.
(4) Identify the number of construction spreads, average workforce requirements
for each construction spread and estimated duration of construction from initial clearing
to final restoration. Indicate the days of the week and times of the day that proposed
construction activities would occur and describe any proposed nighttime construction
activities.
* * * * *
(d) * * *
(6) Discuss proposed mitigation measures to reduce the potential for adverse
impacts to surface water, wetlands, or groundwater quality. Discuss the potential for
blasting or contamination/spills to affect water wells, springs, and wetlands, and

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measures to be taken to detect and remedy such effects. Describe the impact of proposed
land clearing and vegetation management practices, including herbicide treatment, in the
project area on water resources.
(7) * * * Identify locations of Environmental Protection Agency or Statedesignated, sole-source aquifers and wellhead protection areas crossed by the proposed
transmission line facilities.
(e) * * *
(3) Describe and provide the acreage of vegetation cover types that would be
affected, including unique ecosystems or communities, such as remnant prairie, interior
forest, or old-growth forest, or significant individual plants, such as old-growth specimen
trees.
(4) Describe the impact of construction, operation, and maintenance on aquatic
and terrestrial species and their habitats, including the possibility of a major alteration to
ecosystems or biodiversity, and any potential impact on State-listed endangered or
threatened species. Describe the impact of proposed land clearing and vegetation
management practices, including herbicide treatment, in the project area on fish, wildlife,
and vegetation. * * *
(5) Identify all federally listed or proposed threatened or endangered species and
critical habitat that potentially occur in the vicinity of the project. * * * The application
must include the results of any required surveys unless seasonal considerations make this
impractical. * * *
(6) Identify all federally listed essential fish habitat (EFH) that potentially occurs
in the vicinity of the project. Provide information on all EFH, as identified by the

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pertinent Federal fishery management plans, that may be adversely affected by the
project and the results of abbreviated consultations with the National Marine Fisheries
Service, and any resulting EFH assessments.
(7) Describe proposed, site-specific mitigation measures to minimize impacts on
fisheries, wildlife, and vegetation.
(8) Include copies of correspondence not provided under paragraph (e)(5) of this
section, containing recommendations from appropriate Federal and State fish and wildlife
agencies to avoid or limit impacts on wildlife, fisheries, and vegetation, and the
applicant’s response to the recommendations.
(f) * * *
(1) * * *
(i) Documentation of the applicant’s initial cultural resource consultations,
including consultations with Native Americans and other interested persons (if
appropriate);
* * * * *
(iii) An Evaluation Report, as appropriate;
(iv) A Treatment Plan, as appropriate; and
(v) Written comments from State Historic Preservation Officer(s) (SHPO), Tribal
Historic Preservation Officers (THPO), as appropriate, and applicable land-management
agencies on the reports in paragraphs (f)(1)(i) through (iv) of this section.
(2) The application or pre-filing documents, as applicable, must include the
documentation of initial cultural resource consultation(s), the Overview and Survey
Reports, if required, and written comments from SHPOs, THPOs, and land-management

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agencies, if available. The initial cultural resource consultations should establish the need
for surveys. If surveys are deemed necessary by the consultation with the SHPO/THPO,
the survey reports must be filed with the application or pre-filing documents.
* * * * *
(4) The applicant must request privileged treatment for all material filed with the
Commission containing location, character, and ownership information about cultural
resources in accordance with § 388.112 of this chapter. * * *
* * * * *
(g) * * * This report must identify and quantify the impacts of project
construction, operation, and maintenance on factors affecting municipalities and counties
in the vicinity of the project. * * *
* * * * *
(3) Describe on-site manpower requirements and payroll during construction,
operation, and maintenance, including the number of construction personnel who
currently reside within the impact area, will commute daily to the site from outside the
impact area, or will relocate temporarily within the impact area.
* * * * *
(6) Conduct a fiscal impact analysis evaluating incremental local government
expenditures in relation to incremental local government revenues that will result from
the project. Incremental expenditures include, but are not limited to, school operation,
road maintenance and repair, public safety, and public utilities.
(h) Resource Report 6—Tribal resources. This report must describe Indian Tribes,
Tribal lands, and Tribal interests that may be affected by the proposed project. Resource

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Report 6 must:
(1) Identify Indian Tribes that may be affected by the construction, operation, and
maintenance of the proposed transmission facilities.
(2) Describe the impacts of construction, operation, and maintenance of the project
on Indian Tribes and Tribal interests, including those related to: water use and quality;
wildlife and vegetation; cultural and historic resources; socioeconomics; geological
resources; soils; land use, recreation, and aesthetics; air quality and environmental noise;
traffic; and health.
(3) Identify project impacts that may affect Tribal interests not necessarily
associated with resources specified in paragraph (h)(2) of this section, e.g., treaties,
Tribal practices, or agreements between the Indian Tribe and entities other than the
applicant.
(4) Identify Indian Tribes that may attach religious and cultural significance to
historic properties within the proposed project right-of-way or in the project vicinity, as
well as available information on Indian traditional cultural and religious properties,
whether on or off of any Indian reservation.
(5) Ensure that information made available under this section not include specific
site or property locations, the disclosure of which will create a risk of harm, theft, or
destruction of archaeological or Tribal cultural resources or to the site at which the
resources are located, or which would violate any Federal law, including the
Archaeological Resources Protection Act of 1979, 16 U.S.C. 470hh, and the National
Historic Preservation Act of 1966, 54 U.S.C. 307103.
(i) Resource Report 7—Environmental justice. This report must address the effects

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of the proposed project on environmental justice communities, as defined in § 380.2 of
this chapter. Resource Report 7 must:
(1) Identify environmental justice communities within the area of potential project
impacts using current guidance and data, including localized data, from the
Environmental Protection Agency, the Council, the Census Bureau, and other
authoritative sources. Provide maps depicting identified environmental justice
communities in relation to the proposed project facilities using granular data.
(2) Describe the impacts of construction, operation, and maintenance of the project
on environmental justice communities, including those related to: water use and quality;
wildlife and vegetation; cultural and historic resources; socioeconomics; geological
resources; soils; land use, recreation, and aesthetics; air quality and environmental noise;
traffic; and health. Identify any disproportionately high and adverse impacts on
environmental justice communities.
(3) Discuss any cumulative impacts on environmental justice communities,
regarding resources affected by the project, including whether any cumulative impacts
would be disproportionately high and adverse. Describe the proposed project’s impacts in
relation to the aggregation of past, present, and reasonably foreseeable actions taken by
Federal or non-Federal entities, and the environmental justice communities’ capacity to
tolerate additional impacts.
(4) Describe any proposed mitigation measures to avoid or minimize impacts on
environmental justice communities, including any community input received on the
proposed measures and how the input informed the proposed measures.
(j) Resource Report 8—Geological resources. * * * Resource Report 8 must:

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* * * * *
(3) Describe how the project will be located or designed to avoid or minimize
adverse effects to geological resources or risk to itself. Describe any geotechnical
investigations and monitoring that would be conducted before, during, and after
construction. Discuss the potential for blasting to affect structures and the proposed
measures to be taken to remedy such effects.
* * * * *
(k) Resource Report 9—Soils. This report must describe the soils that will be
affected by the proposed project, the effect on those soils, and measures proposed to
minimize or avoid impacts. Resource Report 9 must:
* * * * *
(2) Identify, by milepost, potential impacts from: soil erosion due to water, wind,
or loss of vegetation; soil compaction and damage to soil structure resulting from
movement of construction vehicles; wet soils and soils with poor drainage that are
especially prone to structural damage; damage to drainage tile systems due to movement
of construction vehicles and trenching activities; and interference with the operation of
agricultural equipment due to the possibility of large stones or blasted rock occurring on
or near the surface as a result of construction.
(3) Identify, by milepost, cropland and residential areas where project construction
may result in the loss of soil fertility, including any land classified as prime or unique
farmland by the U.S. Department of Agriculture, Natural Resources Conservation
Service.
(4) Describe any proposed mitigation measures to reduce the potential for adverse

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impacts to soils or agricultural productivity.
(l) Resource Report 10—Land use, recreation, and aesthetics. This report must
describe the existing uses of land in the project vicinity and changes to those land uses
that will occur if the project is approved. The report must discuss proposed mitigation
measures, including the protection and enhancement of existing land use. Resource
Report 10 must:
(1) Describe the width and acreage requirements of all construction and permanent
rights-of-way for project construction, operation and maintenance.
(i) List, by milepost, locations where the proposed construction or permanent
rights-of-way would be adjacent to existing rights-of-way of any kind.
(ii) Identify, preferably by diagrams, existing rights-of-way that will be used for a
portion of the construction or permanent rights-of-way, the overlap and how much
additional width will be required.
(iii) Identify the total amount of land to be purchased or leased for each project
facility; the amount of land that would be disturbed for construction, operation, and
maintenance of the facility; and the proposed use of the remaining land not required for
project operation and maintenance, if any.
(iv) Identify the size of typical staging areas and expanded work areas, such as
those at railroad, road, and waterbody crossings, and the size and location of all
construction materials storage yards and access roads.
(2) Identify, by milepost, the existing use of lands crossed by, or adjacent to, the
proposed project facilities or rights-of-way.
(3) Describe planned development on land crossed by, or within 0.25 mile of, the

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proposed facilities, the time frame (if available) for such development, and proposed
coordination to minimize impacts on land use. Planned development means development
that is included in a master plan or is on file with the local planning board or the county.
(4) Identify, by milepost and length of crossing, the area of direct effect of each
proposed facility and operational site on sugar maple stands; orchards and nurseries;
landfills; operating mines; hazardous waste sites; State wild and scenic rivers; State or
local designated trails; nature preserves; game management areas; remnant prairie; oldgrowth forest; interior forest; national or State forests or parks; golf courses; designated
natural, recreational or scenic areas; registered natural landmarks; Native American
religious sites and traditional cultural properties (to the extent they are known to the
public at large) and reservations; lands identified under the Special Area Management
Plan of the Office of Coastal Zone Management, National Oceanic and Atmospheric
Administration; and lands owned or controlled by Federal or State agencies or private
preservation groups. Also identify if any of those areas are located within 0.25 mile of
any proposed facility.
(5) Identify and describe buildings, electronic installations, airstrips, airports, and
heliports in the project vicinity. The facilities identified under this paragraph (l)(5) must
be depicted on the maps and photographs in Resource Report 1, as required by paragraph
(c)(2) of this section.
(i) Buildings: List all single-family and multi-family dwellings and related
structures, mobile homes, apartment buildings, commercial structures, industrial
structures, business structures, churches, hospitals, nursing homes, schools, or other
structures normally inhabited by humans or intended to be inhabited by humans on a

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daily or regular basis within a 0.5–mile-wide corridor centered on the proposed
transmission line alignment. Provide a general description of each habitable structure and
its distance from the centerline of the proposed project. In cities, towns, or rural
subdivisions, houses can be identified in groups. Provide the number of habitable
structures in each group and list the distance from the centerline to the closest habitable
structure in the group. Provide a list of all habitable structures within 200 feet of a
proposed construction work area for all proposed project facilities, including transmission
line towers, substations, access roads, and appurtenant facilities; a general description of
each habitable structure; and the distance of each habitable structure from the proposed
construction work area.
(ii) Electronic installations: List all commercial AM radio transmitters located
within 10,000 feet of the centerline of the proposed project and all FM radio transmitters,
microwave relay stations, or other similar electronic installations located within 2,000
feet of the centerline of the proposed project. Provide a general description of each
installation and its distance from the centerline of the proposed project.
(iii) Airstrips, Airports, and Heliports: List all known private airstrips within
10,000 feet of the centerline of the project. List all airports registered with the Federal
Aviation Administration (FAA), with at least one runway more than 3,200 feet in length,
that are located within 20,000 feet of the centerline of the proposed project. Indicate
whether any transmission structures will exceed a 100:1 horizontal slope (one foot in
height for each 100 feet in distance) from the closest point of the closest runway. List all
airports registered with the FAA having no runway more than 3,200 feet in length that are
located within 10,000 feet of the centerline of the proposed project. Indicate whether any

Docket No. RM22-7-000

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transmission structures will exceed a 50:1 horizontal slope from the closest point of the
closest runway. List all heliports located within 5,000 feet of the centerline of the
proposed project. Indicate whether any transmission structures will exceed a 25:1
horizontal slope from the closest point of the closest landing and takeoff area of the
heliport. Provide a general description of each private airstrip, registered airport, and
registered heliport, and state the distance of each from the centerline of the proposed
transmission line. Include copies of any consultation with the FAA.
(6) Describe any areas crossed by, or within 0.25 mile of, the proposed
transmission project facilities that are included in, or are designated for study for
inclusion in: the National Wild and Scenic Rivers System (16 U.S.C. 1271), the National
Trails System (16 U.S.C. 1241), or a wilderness area designated under the Wilderness
Act (16 U.S.C. 1132).
(7) For facilities within a designated coastal zone management area, provide a
consistency determination or evidence that the applicant has requested a consistency
determination from the State’s coastal zone management program.
(8) Describe the impact the project will have on present uses of the affected areas
as identified above, including commercial uses, mineral resources, recreational areas,
public health and safety, and the aesthetic value of the land and its features. Describe any
temporary or permanent restrictions on land use resulting from the project.
(9) Describe proposed mitigation measures intended for all special use areas
identified under this section.
(10) Identify the area of potential visual effects from the proposed project.
Describe the visual characteristics of the lands and waters affected by the project,

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including any visually sensitive areas, visual classifications, and key viewpoints in the
project vicinity. Describe how the transmission line project facilities will impact the
visual character and scenic quality of the landscape and proposed mitigation measures to
lessen these impacts. Provide visual aids to support the textual descriptions required by
this paragraph.
(11) Demonstrate that applications for rights-of-way authorizations or other
proposed land uses have been, or soon will be, filed with Federal land-management
agencies with jurisdiction over land that would be affected by the project.
(m) Resource Report 11—Air quality and environmental noise. This report must
estimate emissions from the proposed project and the corresponding impacts on air
quality and the environment, estimate the impact of the proposed project on the noise
environment, and describe proposed measures to mitigate the impacts. Resource Report
11 must:
(1) Describe the existing air quality in the project area, indicate if any project
facilities are located within a designated nonattainment or maintenance area under the
Clean Air Act (42 U.S.C. 7401 et seq.), and provide the distance from the project
facilities to any Class I area in the project vicinity.
(2) For proposed substations and appurtenant facilities, quantitatively describe
existing noise levels at nearby noise-sensitive areas, such as schools, hospitals, or
residences.
(i) Report existing noise levels as the Leq (day), Leq (night), and Ldn and include
the basis for the data or estimates.
(ii) Include a plot plan that identifies the locations and duration of noise

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measurements, time of day, weather conditions, wind speed and direction, engine load,
and other noise sources present during each measurement.
(iii) Identify any State or local noise regulations that may be applicable to the
project facilities.
(3) Estimate emissions from the proposed project and the corresponding impacts
on air quality and the environment.
(i) Estimate the reasonably foreseeable emissions from construction, operation,
and maintenance of the project facilities (such as emissions from tailpipes, equipment,
fugitive dust, open burning, and substations) expressed in tons per year. Include
supporting calculations, emissions factors, fuel consumption rates, and annual hours of
operation.
(ii) For each designated nonattainment or maintenance area, provide a comparison
of the emissions from construction, operation, and maintenance of the project facilities
with the applicable General Conformity thresholds (40 CFR part 93).
(iii) Identify the corresponding impacts on communities and the environment in
the project area from the estimated emissions.
(iv) Describe any proposed mitigation measures to control emissions identified
under this section.
(4) Estimate the impact of the proposed project on the noise environment.
(i) Provide a quantitative estimate of the impact of transmission line operation on
noise levels at the edge of the proposed right-of-way, including corona, insulator, and
Aeolian noise. For proposed substations and appurtenant facilities, provide a quantitative
estimate of the impact of operations on noise levels at nearby noise-sensitive areas,

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including discrete tones.
(A) Include step-by-step supporting calculations or identify the computer program
used to model the noise levels, input and raw output data and all assumptions made when
running the model, far-field sound level data for maximum facility operation, and source
of the data.
(B) Include sound pressure levels for project facilities, dynamic insertion loss for
structures, and sound attenuation from the project facilities to the edge of the right-ofway or to nearby noise-sensitive areas (as applicable).
(C) Far-field sound level data measured from similar project facilities in service
elsewhere, when available, may be substituted for manufacturer's far-field sound level
data.
(D) The operational noise estimates must demonstrate that 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.
(ii) Describe the impact of proposed construction activities, including any
nighttime construction, on the noise environment. Estimate the impact of any horizontal
directional drilling, pile driving, or blasting on noise levels at nearby noise-sensitive areas
and include supporting assumptions and calculations.
(iii) Describe any proposed mitigation measures to reduce noise impacts identified
under this section.
(n) Resource Report 12—Alternatives. This report must describe alternatives to the
project and compare the environmental impacts (as identified in Resource Reports 1

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through 11 of this section) of such alternatives to those of the proposal. * * * Resource
Report 12 must:
* * * * *
(2) * * *
(i) * * * Where applicable, identify the location of such alternatives on maps of
sufficient scale to depict their relationship to the proposed action and existing rights-ofway; and
(ii) * * * Provide comparative tables showing the differences in environmental
characteristics for the alternatives and proposed action. * * *
(o) Resource Report 13—Reliability and safety. This report must address the
potential hazards to the public from failure of facility components resulting from, among
other things, accidents or natural catastrophes; how these events would affect reliability;
and proposed procedures and design features to reduce potential hazards. Resource
Report 13 must:
(1) Discuss hazards, environmental impacts, and service interruptions that could
reasonably ensue from failure of the proposed facilities.
(2) Describe proposed measures to protect the public from failure of the proposed
facilities (including coordination with local agencies).
(3) Discuss proposed design and operational measures to avoid or reduce risk,
including any measures to ensure that the proposed project facilities would be resilient
against future climate change impacts in the project area.
(4) Discuss proposed contingency plans for maintaining service or reducing
downtime to ensure that the proposed facilities would not adversely affect the bulk

Docket No. RM22-7-000

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electric system in accordance with applicable North American Electric Reliability
Corporation reliability standards.
(5) Describe proposed measures to exclude the public from hazardous areas. * *
*
* * * * *
(7) Discuss the potential for electrical noise from electric and magnetic fields,
including shadowing and reradiation, as they may affect health or communication
systems along the transmission right-of-way.
* * * * *
(p) Resource Report 14—Design and engineering. * * * If the version of this
report submitted with the application is preliminary in nature, the applicant must state
that in the application. * * *
* * * * *
(2) * * * If a permit is granted on the basis of preliminary designs, the applicant
must submit final design drawings for written approval by the Director of the Office of
Energy Projects prior to commencement of any construction of the project.
(3) * * *
(i) An assessment of the suitability of the locations of proposed transmission line
towers, substations, and appurtenant structures based on geological and subsurface
investigations, including investigations of soils and rock borings and tests evaluating all
foundations and construction materials;
* * * * *
(iii) An identification of all borrow areas and quarry sites and an estimate of

Docket No. RM22-7-000

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required quantities of suitable construction material; and
* * * * *
(4) The applicant must submit the supporting design report described in paragraph
(p)(3) of this section at the time preliminary and final design drawings are filed. If the
report contains preliminary drawings, it must be designated as a “Preliminary Supporting
Design Report.”

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Note: The following appendix will not appear in the Code of Federal Regulations.
Appendix
Draft Version: Landowner Bill of Rights in Federal Energy Regulatory
Commission Electric Transmission Proceedings
1. You have the right to receive compensation if your property is necessary for the
construction or modification of an authorized project. The amount of such
compensation would be determined through a negotiated easement agreement
between you and the entity applying to the Federal Energy Regulatory
Commission (Commission) for authorization to construct a transmission line
(applicant) or through an eminent domain proceeding in the appropriate Federal or
State court. The applicant cannot seek to take a property by eminent domain
unless and until the Commission approves the application, unless otherwise
provided by State or local law.
2. You have the right to request the full name, title, contact information including email address and phone number, and employer of every representative of the
applicant that contacts you about your property.
3. You have the right to access information about the proposed project through a
variety of methods, including by accessing the project website that the applicant
must maintain and keep current, by visiting a central location in your county
designated by the applicant for review of project documents, or by accessing the
Commission’s eLibrary online document information system at www.ferc.gov.
4. You have the right to participate, including by filing comments and, after an
application is filed, by intervening in any open Commission proceedings regarding
the proposed transmission project in your area. Deadlines for making these filings
may apply. For more information about how to participate and any relevant
deadlines, contact the Commission’s Office of Public Participation by phone (202502-6595) or by email ([email protected]).
5. When contacted by the applicant or a representative of the applicant either in
person, by phone, or in writing, you have the right to communicate or not to
communicate. You also have the right to hire counsel to represent you in your
dealings with the applicant and to direct the applicant and its representatives to
communicate with you only through your counsel.
6. The applicant may seek to negotiate a written easement agreement with you that
would govern the applicant’s and your rights to access and use the property that is
at issue and describe other rights and responsibilities. You have the right to
negotiate or to decline to negotiate an easement agreement with the applicant;
however, if the Commission approves the proposed project and negotiations fail or

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you chose not to engage in negotiations, there is a possibility that your property
could be taken through an eminent domain proceeding, in which case the
appropriate Federal or State court would determine fair compensation.
7. You have the right to hire your own appraiser or other professional to appraise the
value of your property or to assist you in any easement negotiations with the
applicant or in an eminent domain proceeding before a court.
8. Except as otherwise provided by State or local law, you have the right to grant or
deny access to your property by the applicant or its representatives for preliminary
survey work or environmental assessments, and to limit any such grant in time and
scope.
9. In addition to the above rights, you may have additional rights under Federal,
State, or local laws.

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

(Issued December 15, 2022)
DANLY, Commissioner, concurring:
I concur with the issuance of this Notice of Proposed Rulemaking (NOPR)
because it is not my habit to oppose any but the most infirm proposed rules. Today’s
issuance purports to be the first step in discharging the Commission’s obligations under
Infrastructure Investment and Jobs Act,1 which, among other things, included
amendments to certain provisions of section 216 of the Federal Power Act2 (FPA) to
clarify Federal “backstop” siting of electric transmission facilities in limited
circumstances when states fail to act on certain transmission proposals. The NOPR itself,
however, largely appears to be an exercise to extend various environmental reviews
typically seen in natural gas project proceedings—a regime in which the majority of the
Commission has been imposing pervasive, standardless environmental tests well beyond
our statutory authority.
I agree that our “backstop” siting authority is limited under the Commission’s
governing statutes. I disagree that the limited “backstop” siting authority that the
Commission has been granted also confers extensive powers as an environmental and
social regulator. Regardless, the statute certainly did not extend our obligations beyond
the requirements we have always observed in order to discharge our duties under the
National Environmental Policy Act (NEPA).
In going far beyond that which is required by the Infrastructure Investment and
Jobs Act, this NOPR instead appears to represent the majority’s “environmental justice”
wish list. Accordingly, I specifically solicit citations to the provisions in section 216, as
amended—or any other statutory basis—to support each revision proposed in the NOPR
(such citations are often omitted in the NOPR itself).3 Once statutory authority is certain,
1

Pub. L. 117-58, § 40105, 135 Stat. 429.
16 U.S.C. § 824p (2018).
3
As amended by the Infrastructure Investment and Jobs Act, FPA section 216(a)(4)(G)
provides that in determining whether to designate a national interest electric transmission
corridor the Secretary of Energy “may consider” whether the designation “avoids and
minimizes, to the maximum extent practicable, and offsets to the extent appropriate and
practicable, sensitive environmental areas and cultural heritage sites.” 16 U.S.C.
§§ 824p(a)(4), 824p(a)(4)(G)(ii). As amended, FPA section 216(e)(1) provides that a
permit holder may acquire rights-of-way by the exercise of eminent domain if, among
other things, “in the determination of the Commission, the permit holder has made good
2

Docket No. RM22-7-000

-2-

commenters should further provide legal analysis and evidence whether the proposed rule
constitutes good policy, such as, for example, whether it will be beneficial in determining
whether to site electric transmission projects when the states have not done so, or whether
the rule will tend to ensure almost nothing is ever sited.
For example, we propose to “require [electric transmission project] applicants to
develop and file an Environmental Justice Public Engagement Plan as part of their
Project Participation Plan under § 50.4(a)(4).”4 The Commission does not cite any
statute that requires or even permits us to require this Environmental Justice Public
Engagement Plan, instead citing Executive Orders, at least one of which the majority
acknowledges does not bind the Commission.5 The Commission further “proposes to
define the term ‘environmental justice community’ as any disadvantaged community that
has been historically marginalized and overburdened by pollution, including, but not
limited to, minority populations, low-income populations, or indigenous peoples.”6 What
does it mean to be “overburdened by pollution?” Is this a concept that the Commission—
a Federal energy rate regulator—is authorized and equipped to define or establish? Will
the regulated community of transmission developers have any idea how to comply with
such ambiguities? Is there anything about being “overburdened” in the Infrastructure
Investment and Jobs Act?
The Commission also seeks to decree that the Environmental Justice Public
Engagement Plan must “describe the manner in which the applicant will reach out to
environmental justice communities about potential mitigation,”7 or, in other words,
include a mitigation plan, even though “NEPA not only does not require agencies to
discuss any particular mitigation plans that they might put in place, it does not require

faith efforts to engage with landowners and other stakeholders early in the applicable
permitting process.” Id. § 824p(e)(1). It is stretching these amendments to FPA section
216 beyond their breaking point to use them to justify the scope of environmental review
the Commission now proposes in the NOPR.
4
Applications for Permits to Site Interstate Elec. Transmission Facilities, 181 FERC
¶ 61,205 at P 31 (2022) (NOPR); see also 18 C.F.R. § 50.4(a).
5
NOPR, 181 FERC ¶ 61,205 at PP 30, 65, n.72. The Commission also proposes to
require a new “Environmental Justice Report” as part of its regulations implementing
NEPA. See id. PP 65-67. Again, I would like to know where the Commission gets this
authority. We also “expect applicants to utilize the latest guidance and data from [the
Council on Environmental Quality], [the Environmental Protection Agency], the Census
Bureau, and other authoritative sources.” Id. P 67. Does the “latest” guidance and data
include anything issued after pre-filing but before permitting? What about the day after
permitting? What about during the pendency of a rehearing request? And who or what
are “other authoritative sources?”
6
Id. P 32 (emphasis added).
7
Id. P 31.

Docket No. RM22-7-000

-3-

agencies—or third parties—to effect any.”8 Commenters should tell us how the
Commission can impose such a requirement when the Supreme Court and the D.C.
Circuit have ruled otherwise.
By way of further example, as part of its NEPA review, the Commission proposes
to require applicants to submit “Resource Report 10” on “Air quality and environmental
noise.”9 “Proposed Resource Report 10 would require the applicant to estimate
emissions from the proposed project . . . and describe proposed measures to mitigate the
impacts.”10 “Specifically, the applicant must provide the reasonably foreseeable
emissions from construction, operation, and maintenance of the project facilities . . . and
describe any proposed mitigation measures to control emissions.”11 Someone better
propose some standards because these proposals sound much more like aspirational goals
than clear rules that a developer could figure out how to comply with. What are
“foreseeable emissions” from “maintenance,” for example? If a transmission line falls in
a storm, is a transmission developer supposed to predict “reasonably foreseeable”
emissions from the truck the utility line worker uses to drive out to the site? If the line
worker uses a rechargeable ratchet to loosen a bolt, is the transmission developer
supposed to predict the “reasonably foreseeable” emissions from electric generation
required to recharge the battery? And, again, by what authority do we propose to require
a mitigation plan over directly contrary judicial precedent?12
As another example, the Commission proposes to “add language to § 50.11(d) that
would, under certain circumstances and for a limited time, preclude the issuance of
authorizations to proceed with construction of transmission facilities authorized under
FPA section 216 while requests for rehearing of orders issuing permits remain pending
before the Commission.”13 Though in a different context and sounding in a different
statute, the majority imposed a similar policy, including the issuance of stays, for natural
gas projects, over my dissent.14 I solicit comment whether we have this authority, and if
so, whether it is sound policy to exercise it as part of our limited “backstop” siting
jurisdiction.

8

Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 206 (D.C. Cir. 1991) (citing
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 & n.16 (1989)).
9
NOPR, 181 FERC ¶ 61,205 at P 69.
10
Id.
11
Id. P 70.
12
See supra P 5 n.8.
13
NOPR, 181 FERC ¶ 61,205 at P 47.
14
See Limiting Authorizations to Proceed with Constr. Activities Pending Rehearing,
Order No. 871-B, 175 FERC ¶ 61,098 (Danly, Comm’r, dissenting), order on reh’g, 176
FERC ¶ 61,062 (2021) (Danly, Comm’r, dissenting).

Docket No. RM22-7-000

-4-

I have similar questions to those raised here about nearly every aspect of the
NOPR.15 The powers that Congress has granted the Commission are narrow, as has been
acknowledged, but they are profound and, depending upon how the Commission
implements those authorities, can have a lasting effect on the development of the
transmission system. Accordingly, I invite comments from every interested party on my
questions and any other aspect of the proposed rules so that the Commission will have a
full record as it considers whether to promulgate these or related rules.
It is hard to reconcile today’s proposed rule, adorned as it is by burdensome,
unnecessary requirements, with what appears, at the merest glance, to have been the
purpose of Congress when passing the Infrastructure Investment and Jobs Act—to
facilitate, not inhibit, the siting of transmission infrastructure.
For these reasons, I respectfully concur.

________________________
James P. Danly
Commissioner

15

For example, I question whether we are complying with the purpose of the act to
engage in parallel activity with the states during the pendency of the states’ review of
transmission project proposals, a subject that Commissioner Christie has thoroughly
canvassed in his separate statement to this order.

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

(Issued December 15, 2022)
CHRISTIE, Commissioner, concurring:
Updating the Commission’s existing regulations and practices governing the
Commission’s exercise of its transmission siting backstop authority is required by a
statutory change adopted last year by Congress.1 While, of course, we must implement
the change made by Congress, a simple update to our existing regulation would have
been sufficient. This order,2 however, goes beyond merely implementing the required
conforming changes to our existing regulation. So while I concur with putting these
amendments out for comment, I look forward to reviewing the comments on this
proposal, particularly from organizations representing State regulators.
Some relevant history: States have historically had sole authority for permitting
and siting transmission lines (two very separate functions), and for good reasons. Every
power line, from the small ones below 100 kV to the huge 765 kV lines, visible for many
miles around, comes with its own unique set of facts and local concerns. One of those
concerns—let us not forget— is the cost, and that cost will be paid, in some portion, by
consumers in the situs state, through FERC formula rates. So, whenever the day comes
when FERC orders a line built after a State has found it was not needed or found the cost
was not reasonable and prudent, FERC will not only be choosing a route that was rejected
by State regulators, but FERC will be ordering the State’s consumers to pay for the
project, under applicable cost allocation rules. And even if the proposed project ends up
being litigated for years before any steel is in the ground — a virtual certainty for a
controversial project that was rejected by State regulators but imposed by FERC —

1

The Infrastructure Investment and Jobs Act (IIJA), Pub. L. 117-58, § 40105, 135 Stat.
429 (2021), amended section 216 of the Federal Power Act (FPA) in certain respects.
Most notably, it explicitly allows the Commission to grant transmission siting authority
even when a State has denied an application within one year. 16 U.S.C. 824p(b)(1)(C)
(as amended by IIJA section 1221).
2
Applications for Permits to Site Interstate Electric Transmission Facilities, 181 FERC ¶
61,205 (2022) (Backstop Siting NOPR).

Docket No. RM22-7-000

6

consumers will likely be paying through formula rates for years for pre-construction
costs, which can be substantial.3
State regulators are much better prepared to deal with that myriad of local
concerns, including concerns over routing and costs, than FERC. Furthermore, State
processes are far more convenient and user-friendly than processes at FERC, if for no
other reason than geographic proximity. So, waiting one full year to allow a State to “go
first” and make its decision makes sense for a lot of reasons. One obvious reason is that
if the line is truly needed, the State regulators will in all likelihood approve it, and no
FERC staff time and resources will need to be expended at all. The whole mantra that
goes “the states are blocking needed transmission all over the country!” is simply a
political and special-interest narrative. The steadily mounting increases over the past
decade in transmission rate base nationally,4 with concomitant skyrocketing increases in
transmission costs to consumers, blows up the narrative that states are systemically
blocking needed transmission lines. Contrary to the narrative, states need more authority
to scrutinize transmission projects for need and prudence of cost, not less, to protect
consumers.
This proposed regulation changes the practice this Commission adopted in 2006 of
holding off on all processes here for a year, to one in which pre-filing processes will
begin, potentially concurrent with the initiation of State proceedings.5 That change is not
required by last year’s congressional action. It is an act of discretion.
Some more history: The Energy Policy Act of 20056 altered the traditional
arrangement of State authority by creating FPA section 216, which provided this
Commission with supplemental or “backstop” siting authority in certain narrow
For example, the Potomac-Appalachian Transmission Highline (PATH) Project —
which was abandoned, and never even completed — spawned several years of litigation
and imposed many millions of dollars in costs (including return on equity) to ratepayers.
See Newman v. FERC, 27 F.4th 690 (D.C. Cir. 2022) (noting that PATH sought recovery
through rates of over $121 million in abandonment costs alone, charges that were
litigated over several years).
4
See, e.g., RRA Regulatory Focus An Overview of Transmission Ratemaking in the U.S.
— 2021 Update, S&P GLOBAL MARKET INTELLIGENCE, Sept. 16, 2021 (“Growth in
aggregate transmission rate base, 2012-2020” chart at page 3, showing increase from
$57.8 billion to $131.7 billion); see also Jim O’Reilly, PJM, AEP transcos drive 9.17%
YOY [year-over-year] increase in US transmission rate base, S&P CAPITAL IQ PRO,
November 1, 2022 (“Transmission rate base among a group of 76 utilities in the U.S.
maintained year-over-year growth above 9% for the third consecutive year . . . .”.”)
(emphasis added).
5
Backstop Siting NOPR, 181 FERC ¶ 61,205 at PP 21-23.
6
Pub. L. 109-58, § 1221, 119 Stat. 594 (2005) (amended 2021) (EPAct 2005).
3

Docket No. RM22-7-000

7

circumstances. This authority was limited, not plenary: As discussed in greater detail in
the order, EPAct 2005 explicitly authorized the Commission to exercise transmission
siting authority in DOE-designated “national-interest” transmission corridors when a
State application had been rendered futile because the State lacks authority to act, the
applicant lacks standing to obtain authority from the State, the State attaches conditions
rendering the project infeasible, or the State fails to act within one year.7
In Order No. 689, the Commission implemented this new FPA section 216
authority.8 In doing so, it construed that authority expansively in two respects. First, it
construed the statute as vesting siting authority in the Commission even when a State acts
within a year to deny an application. Second, it construed the statute as “permit[ting]
parallel Commission-State processes.”9 But these expansive constructions were promptly
curbed: the first, by the Fourth Circuit Court of Appeals; the second, by the Commission
itself.
As for the first, the Fourth Circuit correctly found in Piedmont that Congress had
not, in fact, authorized the Commission to grant an application that had been timely
denied by a State.10 In direct response to the Fourth Circuit’s opinion, last year Congress
expanded the Commission’s FPA section 216 a notch further, by empowering the
Commission essentially to exercise a veto over a State’s timely decision to deny a
transmission siting application. In other words, in the IIJA, Congress sought to (and did)
overturn the key holding in Piedmont.
As for the second, the Commission wisely decided that “that States which have
authority to approve the siting of facilities should have one full year to consider a siting
application without there being any overlapping Commission process,” and therefore
found that, “in cases where our jurisdiction rests on FPA section 216(b)(1)(C), the prefiling process should not commence until one year after the relevant State applications
have been filed.”11 This policy was not set in stone, of course — the Commission noted
that it would “reconsider the issue” if in the future it turned out “that the lack of a
7

See Backstop Siting NOPR, 181 FERC ¶ 61,205 at PP 2-7.
Regulations for Filing Applications for Permits to Site Interstate Electric Transmission
Facilities, Order No. 689, FERC Stats. & Regs. ¶ 31,234 (2006) (Order No. 689), reh’g
denied, 119 FERC ¶ 61,154 (2007).
9
Id. P 20; see also id. P 19 (same). I won’t opine on whether this construction is correct
or not — though seemingly reasonable, it doesn’t seem to be rooted in anything more
than an inference from the fact that the Commission may act if the State has failed to do
so within a year — but I will observe that it is not compelled by citations to the statutory
text or legislative history.
10
Piedmont Envtl. Council v. FERC, 558 F.3d 304 (4th Cir. 2009) (Piedmont), cert.
denied, 558 U.S. 1147 (2010).
11
Order No. 689, FERC Stats. & Regs. ¶ 31,234 at P 21 (footnote omitted).
8

Docket No. RM22-7-000

8

Commission pre-filing process prior to the end of the one year is delaying projects or
otherwise not in the public interest.”12
This was sound policy in 2006, and I am not convinced that the intervening years
have taught us that “the lack of a Commission pre-filing process prior to the end of the
one year is delaying projects or otherwise not in the public interest.”13 Nor did Congress,
in the IIJA, do anything to suggest that commencement of the Commission’s pre-filing
process should be accelerated — although of course it could have.
Nonetheless, I support this order, in its current form, because I believe that the
proposal to allow states a 90-day comment period following a year of pre-filing processes
may afford adequate protection for the states and their processes, provided that the
Commission’s pre-filing process does not begin before the relevant State processes have
been commenced. This order actually invites comment on whether FERC’s pre-filing
processes should be allowed to commence prior to the initiation of State proceedings.14 I
would not even have raised that prospect. I ask states in particular to review closely and
comment on these provisions. There are also other examples of this order going beyond
where it needed to go.15
To be clear, I have no concern with informal communications between applicants
and Commission staff before the states have had a year to act. Nor do I have any concern
with allowing an initial consultation or other preparatory work during this one-year
period. But as discussed above, I believe strongly that the states should have an
opportunity to complete their processes without any impediment or distraction from
Commission proceedings.
I support revising the Commission’s Regulations to reflect the modest expansion
of its authority worked on FPA section 216 by the IIJA, and I am inclined to believe that
the 90-day comment period afforded to states at the close of a year’s worth of pre-filing
may adequately protect a State’s interests. To that extent, I support putting this order out
for comment and I look forward to the comments the Commission will receive.

12

Id.
Id.
14
Backstop Siting NOPR, 181 FERC ¶ 61,205 at P 23.
15
For example, the order proposes a new regulatory definition of “environmental justice
community.” Id. P 32. This concept has been in flux since it was created and it
continues to evolve; nothing in the IIJA’s amendments to FPA section 216 either
explicitly or implicitly requires the Commission to adopt any such definition at all herein.
13

Docket No. RM22-7-000
For these reasons, I concur.
______________________________
Mark C. Christie
Commissioner

9

181 FERC ¶ 61,205
DEPARTMENT OF ENERGY
FEDERAL ENERGY REGULATORY COMMISSION
18 CFR Parts 50 and 380
[Docket No. RM22-7-000]
Applications for Permits to Site Interstate Electric Transmission Facilities
(Issued December 15, 2022)

AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Federal Energy Regulatory Commission proposes to revise its
existing regulations governing applications for permits to site electric transmission
facilities under section 216 of the Federal Power Act, as amended by the Infrastructure
Investment and Jobs Act of 2021.
DATES: Comments are due [INSERT DATE 90 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER].
ADDRESSES: Comments, identified by docket number, may be filed in the following
ways. Electronic filing through http://www.ferc.gov is preferred.
• Electronic Filing: Documents must be filed in acceptable native applications and
print-to-PDF, but not in scanned or picture format.
• For those unable to file electronically, comments may be filed by U.S. Postal
Service mail or by hand (including courier) delivery.

Docket No. RM22-7-000

o Mail via U.S. Postal Service only: Addressed to: Federal Energy
Regulatory Commission, Office of the Secretary, 888 First Street NE,
Washington, DC 20426.
o For delivery via any other carrier (including courier): Deliver to: Federal
Energy Regulatory Commission, Office of the Secretary, 12225 Wilkins
Avenue, Rockville, MD 20852.
The Comment Procedures section of this document contains more detailed filing
procedures.
FOR FURTHER INFORMATION CONTACT:
Brandon Cherry (Technical Information)
Office of Energy Projects
Federal Energy Regulatory Commission
888 First Street NE
Washington, DC 20426
(202) 502-8328
[email protected]
Cleo Deschamps (Legal Information)
Office of the General Counsel
Federal Energy Regulatory Commission
888 First Street NE
Washington, DC 20426
(202) 502-8377
[email protected]
SUPPLEMENTARY INFORMATION:

ii

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

NOTICE OF PROPOSED RULEMAKING
TABLE OF CONTENTS
Paragraph Numbers
I. Background ..................................................................................................................... 2.
A. Energy Policy Act of 2005 and FPA Section 216 ..................................................... 2.
B. Order No. 689 ............................................................................................................ 9.
C. Piedmont & California Wilderness Judicial Decisions ........................................... 11.
D. IIJA Amendments to FPA Section 216 ................................................................... 14.
II. Discussion .................................................................................................................... 17.
A. Commission Jurisdiction and State Siting Proceedings .......................................... 17.
1. IIJA Amendments to FPA Section 216(b)(1)(C) ................................................. 18.
2. Commencement of Pre-filing .............................................................................. 19.
B. Eminent Domain Authority and Applicant Efforts to Engage with Landowners and
Other Stakeholders ....................................................................................................... 24.
C. Environmental Justice Public Engagement Plan ..................................................... 30.
D. Other Proposed Revisions to 18 CFR Part 50 ......................................................... 32.
1. Section 50.1 – Definitions ................................................................................... 32.
2. Section 50.3 – Filing and Formatting Requirements ........................................... 34.
3. Section 50.4 – Stakeholder Participation ............................................................. 35.
4. Section 50.5 – Pre-filing Procedures ................................................................... 40.
5. Section 50.6 – General Content of Applications ................................................. 42.
6. Section 50.7 – Application Exhibits .................................................................... 44.
7. Section 50.11 – General Permit Conditions ........................................................ 46.
8. Proposed Clarifying Revisions to 18 CFR Part 50 .............................................. 48.
E. Regulations Implementing NEPA ........................................................................... 49.
1. Tribal Resources Resource Report ...................................................................... 63.
2. Environmental Justice Resource Report .............................................................. 65.
3. Air Quality and Environmental Noise Resource Report ..................................... 68.
4. Visual Resources ................................................................................................. 72.
5. Additional Proposed Revisions to 18 CFR 380.16 .............................................. 74.
6. Proposed Revisions to 18 CFR 380.13 and 380.14 ............................................. 83.
III. Information Collection Statement .............................................................................. 84.
IV. Environmental Analysis ............................................................................................. 98.

Docket No. RM22-7-000

-2-

V. Regulatory Flexibility Act ........................................................................................... 99.
VI. Comment Procedures ............................................................................................... 103.
VII. Document Availability ............................................................................................ 106.

181 FERC ¶ 61,205
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Richard Glick, Chairman;
James P. Danly, Allison Clements,
Mark C. Christie, and Willie L. Phillips.
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

NOTICE OF PROPOSED RULEMAKING
(Issued December 15, 2022)
On November 15, 2021, the Infrastructure Investment and Jobs Act (IIJA) became
law.1 The IIJA, among other things, amended section 216 of the Federal Power Act
(FPA), which provides for Federal siting of electric transmission facilities under certain
circumstances. The Federal Energy Regulatory Commission (Commission) proposes to
amend its regulations governing applications for permits to site electric transmission
facilities to ensure consistency with the IIJA’s amendments to FPA section 216, to
modernize certain regulatory requirements, and to incorporate other updates and
clarifications to provide for the efficient and timely review of permit applications.
VIII. Background
A.

Energy Policy Act of 2005 and FPA Section 216

The authority to site electric transmission facilities has traditionally resided solely
with the States. However, the August 8, 2005 enactment of the Energy Policy Act of
2005 (EPAct 2005)2 established a limited Federal role in electric transmission siting by

1
2

Pub. L. 117-58, sec.§ 40105, 135 Stat. 429 (2021).
Pub. L. 109-58, sec.§ 1221, 119 Stat. 594 (2005) (amended 2021).

Docket No. RM22-7-000

-2-

adding section 216 to the FPA. Under section 216, Federal siting authority for electric
transmission facilities (as defined in that section) is divided between the Department of
Energy (DOE) and the Commission. Section 216(a) directs DOE, on a triennial basis, to
conduct a study and issue a report on electric transmission congestion and permits DOE
to designate certain transmission-constrained or congested geographic areas as national
interest electric transmission corridors (National Corridors). Section 216(b) authorizes
the Commission in certain instances to issue permits for the construction or modification
of electric transmission facilities in areas that DOE has designated as National Corridors.
As originally enacted in EPAct 2005, section 216(b)(1) authorized the
Commission to issue permits to construct or modify electric transmission facilities in a
National Corridor if it found that: (A) a State in which such facilities are located lacks
the authority to approve the siting of the facilities or consider the interstate benefits
expected to be achieved by the proposed construction or modification of transmission
facilities in the State;3 (B) the permit applicant is a transmitting utility but does not
qualify to apply for a permit or siting approval in a State because the applicant does not
serve end-use customers in the State;4 or (C) a State commission or entity with siting
authority has withheld approval of the facilities for more than one year after an
application is filed or one year after the designation of the relevant National Corridor,
whichever is later, or the State conditions the construction or modification of the facilities

3
4

16 U.S.C. 824p(b)(1)(A) (2018).
Id. 824p(b)(1)(B) (2018).

Docket No. RM22-7-000

-3-

in such a manner that the proposal will not significantly reduce transmission congestion
in interstate commerce or is not economically feasible.5
In addition, before issuing a permit, sections 216(b)(2) through (6) required the
Commission to find that the proposed facilities: (1) will be used for the transmission of
electricity in interstate commerce; (2) are consistent with the public interest; (3) will
significantly reduce transmission congestion in interstate commerce and protect or benefit
consumers; (4) are consistent with sound national energy policy and will enhance energy
independence; and (5) will maximize, to the extent reasonable and economical, the
transmission capabilities of existing towers or structures.6
Section 216(e) authorized a permit holder, if unable to reach agreement with a
property owner, to use eminent domain to acquire the necessary right-of-way for the
construction or modification of transmission facilities for which the Commission has
issued a permit under section 216(b).7 Federal and State-owned land was expressly
excluded from the purview of section 216(e) and thus could not be acquired via eminent
domain.8
Section 216(h)(2) designated DOE as the lead agency for purposes of coordinating
all Federal authorizations and related environmental reviews needed to construct
proposed electric transmission facilities. To ensure timely and efficient reviews and
permit decisions, under section 216(h)(4)(A), DOE is required to establish prompt and
binding intermediate milestones and ultimate deadlines for all Federal reviews and

5

Id. 824p(b)(1)(C) (2018).
16 U.S.C. 824p(b)(2)-(6) (as amended by IIJA section 1221).
7
Id. 824p(e)(1).
8
Id.
6

Docket No. RM22-7-000

-4-

authorizations required for a proposed electric transmission facility.9 Under section
216(h)(5)(A), DOE, as lead agency, in consultation with other affected agencies, is
required to prepare a single environmental review document that would be used as the
basis for all decisions for proposed projects under Federal law.
On May 16, 2006, the Secretary of DOE delegated to the Commission authority to
implement parts of section 216(h), specifically paragraphs (2), (3), (4)(A)-(B), and (5),
for the proposed transmission facilities in designated National Corridors for which an
applicant has applied to the Commission for issuance of a permit under section 216(b).10
Specifically, the Secretary delegated DOE’s lead agency responsibilities to the
Commission for the purposes of coordinating all applicable Federal authorizations and
related environmental reviews and preparing a single environmental review document for
proposed facilities under the Commission’s siting jurisdiction. 11
As discussed further below, the IIJA amended certain provisions of section 216
that pertain to the Commission’s permitting authority.
B.

Order No. 689

Section 216(c)(2) of the FPA required the Commission to issue rules specifying
the form of, and the information to be contained in, an application for proposed

9

Under FPA section 216(h)(6)(A), if any agency has denied a Federal authorization
required for a transmission facility, or has failed to act by the deadline established by the
Secretary of DOE, the applicant or any State in which the facility would be located may
file an appeal with the President.
10
See DOE Delegation Order No. 00-004.00A.
11

While Congress has provided the authority to establish prompt and binding milestones
and deadlines for the review of, and Federal authorization decisions relating to, facilities
proposed under section 216, 16 U.S.C. 824p(h)(4)(A), efficient processing of applications
will depend upon agencies complying with the established milestones and deadlines.

Docket No. RM22-7-000

-5-

construction or modification of electric transmission facilities in National Corridors, and
the manner of service of notice of the permit application on interested persons. Pursuant
to this statutory requirement, on November 16, 2006, the Commission issued Order
No. 689, which implemented new regulations for section 216 permit applications by
adding part 50 to the Commission’s regulations.12 In addition, Order No. 689 adopted
certain modifications to the Commission’s regulations implementing the National
Environmental Policy Act of 1969 (NEPA) in part 380 to ensure that the Commission is
provided sufficient information to conduct an environmental analysis of a proposed
electric transmission project.
In Order No. 689, the Commission addressed a question of statutory interpretation
raised by commenters concerning the text of section 216(b)(1)(C), which, at the time,
conferred jurisdiction to the Commission whenever a State had withheld approval of a
State siting application for more than one year.13 The Commission interpreted the phrase
“withheld approval” to include any action that resulted in an applicant not receiving State
approval within one year, including a State’s express denial of an application to site
transmission facilities.14

12

Regulations for Filing Applications for Permits to Site Interstate Elec. Transmission
Facilities, Order No. 689, 71 FR 69440 (Dec. 1, 2006), 117 FERC ¶ 61,202 (2006)
(Order No. 689 Final Rule), reh’g denied, 119 FERC ¶ 61,154 (2007) (Order
No. 689 Rehearing Order).
13
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at PP 24-31; Order No. 689 Rehearing
Order, 119 FERC ¶ 61,154 at PP 7-23.
14
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at P 26; Order No. 689 Rehearing
Order, 119 FERC ¶ 61,154 at P 11.

Docket No. RM22-7-000
C.

-6-

Piedmont & California Wilderness Judicial Decisions

In 2009, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit), in
Piedmont Environmental Council v. FERC,15 held that the Commission’s interpretation
of “withheld approval” was contrary to the plain meaning of the statute, and that the
Commission’s permitting authority does not apply when a State has affirmatively denied
a permit application within the one-year deadline.16 In addition, the Fourth Circuit
vacated the Commission’s transmission-related amendments to its regulations
implementing NEPA, finding that the Commission had failed to consult with the Council
on Environmental Quality (CEQ) before adopting the revisions.17
Two years later, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), in
California Wilderness Coalition v. DOE, considered petitions for review challenging
DOE’s actions following the enactment of section 216.18 In August 2006, DOE had
issued a Congestion Study, which identified two critically congested areas in the MidAtlantic and Southern California.19 Based on the results of the Congestion Study, in
October 2007, DOE formally designated two National Corridors, the Mid-Atlantic and
the Southwest Area Corridors.20 The Ninth Circuit vacated DOE’s Congestion Study and
National Corridor designations, finding that the agency: (1) failed to properly consult
with affected States in preparing the Congestion Study, as required by section 216; and

15

558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147 (2010) (Piedmont).
Id. at 313.
17
Id. at 319, 320.
18
631 F.3d 1072 (9th Cir. 2011) (California Wilderness).
19
Id. at 1081 (citing National Electric Transmission Congestion Study,
71 FR 45047 (Aug. 8, 2006)).
20
Id. at 1083 (citing National Electric Transmission Congestion Report,
72 FR 56992 (Oct. 5, 2007)).
16

Docket No. RM22-7-000

-7-

(2) failed to consider the environmental effects of the National Corridor designations
under NEPA.21
Since the Ninth Circuit decision in 2011, DOE has not designated any National
Corridors, and the Commission has not received any applications for permits to site
electric transmission facilities.
D.

IIJA Amendments to FPA Section 216

On November 15, 2021, the IIJA amended section 216 of the FPA. As relevant
to the Commission’s permitting authority, the IIJA amended section 216(b)(1)(C) by
deleting the phrase “withheld approval” and by incorporating revisions to the statutory
text. As amended, section 216(b)(1)(C) provides that the Commission’s permitting
authority is triggered when a State commission or other entity with authority to approve
the siting of the transmission facilities: (i) has not made a determination on an
application by one year after the later of the date on which the application was filed or
the date on which the relevant National Corridor was designated; (ii) has conditioned
its approval such that the proposed project will not significantly reduce transmission
capacity constraints or congestion in interstate commerce or is not economically feasible;
or (iii) has denied an application.22 This statutory amendment resolves the jurisdictional
issue at the heart of Piedmont by giving the Commission permitting authority when a
State has denied an application.23

21

Id. at 1096, 1106.
16 U.S.C. 824p(b)(1)(C) (as amended by IIJA section 1221).
23
Id. 824p(b)(1)(C)(iii).
22

Docket No. RM22-7-000

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Additionally, the IIJA amended section 216(e), which grants a permit holder the
right to acquire the necessary right-of-way by eminent domain.24 As amended, section
216(e)(1) requires the Commission to determine, as a precondition to such eminent
domain authority, that a permit holder has made good faith efforts to engage with
landowners and other stakeholders early in the applicable permitting process.25
With respect to DOE’s authority, the IIJA amended section 216(a)(2) to expand
the circumstances under which DOE may designate a National Corridor. In addition to
geographic areas currently experiencing transmission capacity constraints or congestion
that adversely affects consumers, DOE may designate National Corridors in geographic
areas expected to experience such constraints or congestion. The IIJA also amended
section 216(a)(4) to expand the factors that DOE may consider in determining whether to
designate a National Corridor.
IX.

Discussion
A.

Commission Jurisdiction and State Siting Proceedings

Section 216(b)(1)(C) of the FPA addresses instances where a State commission or
other State entity with authority to site transmission facilities has acted, or has failed to
act, triggering the Commission’s jurisdiction. Below, the Commission proposes to revise
§ 50.6 of its regulations to reflect the IIJA’s amendments to section 216(b)(1)(C) and
announces a policy change with respect to the commencement of the Commission’s prefiling process for cases where the Commission’s jurisdiction rests on section
216(b)(1)(C).

24
25

Id. 824p(e)(1).
See id.

Docket No. RM22-7-000
1.

-9-

IIJA Amendments to FPA Section 216(b)(1)(C)

As discussed above, the IIJA amended FPA section 216(b)(1)(C) by revising the
statutory text to expressly state that the Commission may issue a permit for the
construction or modification of electric transmission facilities in National Corridors if a
State has denied an applicant’s request to site transmission facilities.26 Therefore, the
Commission proposes to revise § 50.6 of its regulations, which describes the information
that is required in each application filed pursuant to our part 50 regulations. As relevant
here, § 50.6(e) requires the applicant to demonstrate that its proposed project would
satisfy the requirements of section 216(b)(1) through (6). To reflect the IIJA’s
amendments to section 216(b)(1)(C), the Commission proposes corresponding revisions
to § 50.6(e)(3) to provide that the applicant is required to submit evidence demonstrating
that a State has: (i) not made a determination on an application; (ii) conditioned its
approval in such a manner that the proposed facilities would not significantly reduce
transmission capacity constraints or congestion in interstate commerce or is not
economically feasible; or (iii) denied an application.
2.

Commencement of Pre-filing

The Commission has recognized that Congress, in enacting section 216 of the
FPA, adopted a statutory scheme that allows simultaneous State and Commission siting
processes.27 As explained in Order No. 689, the statute provides for this potential overlap
by allowing the Commission to issue a permit one year after the State siting process has
begun and requiring an expeditious pre-application mechanism for all permit decisions

26
27

See supra P 14.
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at P 19.

Docket No. RM22-7-000

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under Federal law.28 Thus, the Commission has recognized that our pre-filing process
can occur at the same time as simultaneous State proceedings.29
Notwithstanding that the statute allows simultaneous State and Federal
proceedings, the Commission in the preamble to Order No. 689 announced a policy that,
in cases where its jurisdiction rests on section 216(b)(1)(C),30 the pre-filing process
would not commence until one year after the relevant State applications have been filed.31
This approach, the Commission explained, would provide the States one full year to
process an application without any intervening Federal proceedings, including both the
pre-filing and application processes, after which time an applicant might seek to
commence the Commission’s pre-filing process.32 However, the Commission noted that
it would reconsider this issue if it later determined that requiring applicants to wait one
year before commencing the Commission’s pre-filing process was delaying projects or
otherwise not in the public interest.33
We are now reconsidering that policy. To ensure that permit applicants receive as
timely a decision as possible from the Commission, we propose to eliminate the one-year
delay before the Commission’s pre-filing process may commence. The purpose of the
pre-filing process is to facilitate maximum participation from all stakeholders to provide
them with an opportunity to present their views and recommendations with respect to the

28

Id.
Id.
30
In Order No. 689, the Commission explained that in all other instances, the pre-filing
process may be commenced at any time. Id. P 21 n.14.
31
Id. P 21.
32
Id.
33
Id.
29

Docket No. RM22-7-000

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environmental impacts of the facilities early in the planning stages of the proposed
facilities. In addition to gathering stakeholder input, during the pre-filing process
Commission staff will work with the applicant to ensure the applicant has compiled the
necessary information for a complete application under §§ 50.6 and 50.7,34 and begin
our coordination with other agencies as required under section 216(h).35 Therefore, to
encourage the development of needed transmission infrastructure and to minimize the
risk of delays, we propose to allow simultaneous processing of State applications and
Commission pre-filing proceedings.
The Commission continues to recognize the primacy of the States’ role in siting
transmission infrastructure but, as discussed, believes that allowing for simultaneous
processing could facilitate a more efficient process. In addition, we note that, the
applicant could potentially collect information that is relevant to both stateState and
federalFederal proceedings only once, avoiding the need to re-do or update analysis
needed to meet federalFederal permit requirements. While states and other interested
stakeholders are free to submit information in the pre-filing process, they are under no
obligation to participate and will not waive any rights or otherwise be prejudiced if they
choose not to do so. No rights are adjudicated in the pre-filing process, nor are findings
of fact made. The pre-filing process is intended to facilitate the development of a
complete application that can be acted upon expeditiously.
Though the statute does not limit when the Commission’s pre-filing process may
begin, the Commission intends to entertain requests to commence pre-filing, and may

34
35

Id.
16 U.S.C. 824p(h); DOE Delegation Order No. 00-004.00A.

Docket No. RM22-7-000

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grant such requests, at any time after the relevant State applications have been filed.
However, out of respect for State siting processes, the Commission proposes to provide
an additional opportunity for State input before we determine that the pre-filing process is
complete and that an application may be filed. Specifically, one year after the
commencement of the Commission’s pre-filing process, if a State has not made a
determination on an application, we propose to provide a 90-day window for the State to
provide comments on any aspect of the pre-filing process, including any information
submitted by the applicant. We also seek comment on the advantages or disadvantages
of the Commission entertaining requests to commence the pre-filing process before a
State application has been filed.
B.

Eminent Domain Authority and Applicant Efforts to Engage with
Landowners and Other Stakeholders

As described above, the IIJA amended FPA section 216(e)(1) to require the
Commission to determine, as a precondition to receiving eminent domain authority,
that the permit holder has made good faith efforts to engage with landowners and
stakeholders early in the permitting process.36 Therefore, the Commission proposes to
supplement the existing landowner and stakeholder participation provisions in part 50 of
its regulations.
Section 50.4 of the regulations requires the applicant to develop and file a Project
Participation Plan early in the pre-filing process and to distribute, by mail and newspaper
publication, project participation notices early in both the pre-filing and application

36

16 U.S.C. 824p(e)(1) (as amended by IIJA section 1221).

Docket No. RM22-7-000

- 13 -

review processes. Specifically, under § 50.4(a), the Project Participation Plan must:
(1) identify specific tools and actions to facilitate stakeholder communications and public
information; (2) list locations throughout the project area where the applicant will provide
copies of all project filings; and (3) explain how the applicant intends to respond to
requests for information from the public and other entities. Under § 50.4(c), the project
participation notices must provide a range of information on the proposed project and
permitting process, including a general description of the property an applicant would
need from an affected landowner and a brief summary of what rights an affected
landowner has at the Commission and in proceedings under the eminent domain rules of
the relevant State.
To address the IIJA’s amendment to section 216(e)(1), we propose to supplement
the regulatory requirements in § 50.4 by adding a new § 50.12. Under proposed § 50.12,
an applicant may demonstrate that it has met the statutory good faith efforts standard by
complying with an Applicant Code of Conduct in its communications with affected
landowners. The Applicant Code of Conduct in proposed § 50.12(a) includes particular
recordkeeping and information-sharing requirements for engagement with affected
landowners, as well as more general prohibitions against certain misconduct in such
engagement. For example, an applicant that chooses to comply with the Applicant Code
of Conduct set forth in proposed § 50.12(a) must: retain an affected landowner contact
log; provide affected landowners with certain information about the project and the
Commission; ensure communications with affected landowners are factually correct,
devoid of misrepresentation, and respectful; obtain affected landowner permission to
enter property and leave when asked; and, if applicable, provide an affected landowner

Docket No. RM22-7-000

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with a copy of any appraisal prepared by, or on behalf of, the applicant for that
landowner’s property.
Under proposed § 50.12(b)(1), an applicant that chooses to show good faith by
complying with the Applicant Code of Conduct must file, as part of the pre-filing request
required under § 50.5(c), an affirmative statement indicating its intent to comply with the
Applicant Code of Conduct. Under proposed § 50.12(b)(2), such an applicant must, as
part of the monthly status reports required under § 50.5(e), demonstrate compliance by:
(i) affirming that the applicant and its representatives have complied with the Applicant
Code of Conduct; or (ii) explaining any instances of non-compliance during the relevant
month and any remedial actions taken or planned. Under proposed § 50.12(b)(3), an
applicant must also identify any known instances of non-compliance that were not
disclosed in prior monthly status reports and explain any remedial actions taken to
remedy such instances of non-compliance.
We emphasize that voluntary compliance with the Applicant Code of Conduct is
one way, but not the only way, that an applicant may demonstrate that it has met the
“good faith efforts” standard in section 216(e)(1). However, we believe that the
Applicant Code of Conduct reflects principles that are broadly relevant to determining
whether an applicant has made good faith efforts to engage with landowners and other
stakeholders early in the applicable permitting process. We propose to require under
§ 50.12 that an applicant that chooses not to rely on compliance with the Applicant Code
of Conduct must specify its alternative method of demonstrating that it meets the good
faith efforts standard, including any specific commitments to record-keeping and
information-sharing. The applicant must explain how its alternative method is equal to or

Docket No. RM22-7-000

- 15 -

superior to compliance with the Applicant Code of Conduct as a means to ensure the
good faith efforts standard is met. The applicant should specifically explain, for each
deviation from the Applicant Code of Conduct in its alternative method, its reasoning for
not following that provision of the Applicant Code of Conduct and why the alternative
method is an equal or better means to ensure the good faith standard is met
notwithstanding that deviation.
An applicant bears the burden of demonstrating it has met the good faith efforts
standard in a permit application proceeding. For an applicant that elects to rely on
compliance with the Applicant Code of Conduct, the Commission will assess “good faith
efforts” by evaluating whether evidence in the record shows the applicant substantially
complied with the provisions of the Applicant Code of Conduct in its engagement with
landowners and other stakeholders. For an applicant that elects to rely on an alternative
method to show good faith efforts, the Commission will first assess whether the
applicant’s alternative method is equal to or superior to the Applicant Code of Conduct
as a means to ensure the good faith efforts standard is met. If so, the Commission will
then assess “good faith efforts” by evaluating whether evidence in the record shows
the applicant substantially complied with the commitments of its alternative method.
C.

Environmental Justice Public Engagement Plan

As described above, applicants are currently required by § 50.4(a) to develop and
file a Project Participation Plan early in the pre-filing process. This requirement is
intended to facilitate stakeholder communication and the dissemination of public
information about the proposed project. Consistent with that goal, we believe that
applicants should, early in the pre-filing process, meaningfully engage with potentially

Docket No. RM22-7-000

- 16 -

affected environmental justice communities. As discussed in this notice of proposed
rulemaking (NOPR), the term “environmental justice community” includes
disadvantaged communities that have been historically marginalized and overburdened
by pollution.37 The term also includes, but may not be limited to, minority populations,
low-income populations, or indigenous peoples.38 Applicants will identify potential
environmental justice communities using the identification methods consistent with
current Commission practice.39 This engagement would be consistent with:
(1) Executive Order 12898, which directs Federal agencies to identify and address
“disproportionately high and adverse human health or environmental effects” of their

37

E.O. 14008, 86 FR 7619, § 219 (Jan. 27, 2021).
See EPA, EJ 2020 Glossary (Aug. 18, 2022),
https://www.epa.gov/environmentaljustice/ej-2020-glossary.
39
To identify potential environmental justice communities, Commission staff uses
current U.S. Census American Community Survey data for the race, ethnicity, and
poverty data at the State, county, and block group level. As recommended in Promising
Practices, the Commission currently uses the fifty percent and the meaningfully greater
analysis methods to identify minority populations. Specifically, a minority population is
present where either: (1) the aggregate minority population of the block groups in the
affected area exceeds 50 percent; or (2) the aggregate minority population in the block
group affected is 10 percent higher than the aggregate minority population percentage
in the county. Environmental Protection Agency (EPA), Promising Practices for EJ
Methodologies in NEPA Reviews
(Mar. 2016) (Promising Practices), https://www.epa.gov/sites/default/files/201608/documents/nepa_promising_practices_document_2016.pdf. The Commission intends
to review and incorporate any updated guidance from CEQ and EPA in our future
analyses, as appropriate. Using Promising Practices’ low-income threshold criteria
method, Commission staff currently identifies low-income populations as block groups
where the percent of a low-income population in the identified block group is equal to or
greater than that of the county. We recognize that CEQ and EPA are in the process of
updating their guidance and recommendations regarding environmental justice. We
expect applicants to utilize the latest guidance and data from CEQ, EPA, the Census
Bureau, and other authoritative sources. The Commission intends to update our methods
for identifying potential environmental justice communities following review of any
updated environmental justice guidance and recommendations from CEQ and EPA, as
appropriate.
38

Docket No. RM22-7-000

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actions on minority and low-income populations (i.e., environmental justice
communities);40 (2) Executive Order 14008, which directs agencies to develop
“programs, policies, and activities to address the disproportionately high and adverse
human health, environmental, climate-related and other cumulative impacts on
disadvantaged communities, as well as the accompanying economic challenges of such
impacts;”41 (3) Executive Order 13985, which requires federalFederal agencies to
conduct Equity Assessments to identify and remove barriers to underserved communities
and “to increase coordination, communication, and engagement with community-based
organizations and civil rights organizations;”42 and (4) the Environmental Protection
Agency’s (EPA) Promising Practices report.43 This engagement would also be
consistent with the Commission’s Equity Action Plan adhering to Executive Order
13985, which promotes equitable processes and outcomes for underserved communities,
including environmental justice communities, at the Commission.44

40

E.O. 12898, 59 FR 7629 (Feb. 16, 1994). Minority populations are those groups that
include: American Indian or Alaskan Native; Asian or Pacific Islander; Black, not
of Hispanic origin; or Hispanic. CEQ, Environmental Justice: Guidance Under the
National Environmental Policy Act at 25 (Dec. 1997) (CEQ’s Environmental Justice
Guidance),
https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQEJGuidance.pdf.
41
E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
42
E.O. 13985, 86 FR 7009, 7010-11 (Jan. 25, 2021).
43
EPA, Promising Practices for EJ Methodologies in NEPA Reviews (Mar. 2016),
https://www.epa.gov/sites/default/files/201608/documents/nepa_promising_practices_document_2016.pdf (Promising Practices).
The report includes guiding principles aimed at, among other things, early and
meaningful engagement with minority populations, low-income populations, and other
interested individuals, communities, and organizations in the NEPA process
44
FERC, Equity Action Plan (2022), https://www.ferc.gov/equity.

Docket No. RM22-7-000

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Therefore, the Commission proposes to require applicants to develop and file an
Environmental Justice Public Engagement Plan as part of their Project Participation Plan
under § 50.4(a)(4). The Environmental Justice Public Engagement Plan must describe
the applicant’s completed and planned outreach activities that are targeted to identified
environmental justice communities. The plan must also summarize comments received
from potentially impacted environmental justice communities during any previous
outreach activities, if applicable, and describe planned outreach activities during the
permitting process, including efforts to identify, engage, and accommodate non-English
speaking groups or linguistically isolated communities. The plan should also describe the
manner in which the applicant will reach out to environmental justice communities about
potential mitigation.45
D.

Other Proposed Revisions to 18 CFR Part 50
1.

Section 50.1 – Definitions

Section 50.1 sets forth the definitions for part 50 of the Commission’s regulations.
The Commission proposes to add a definition for the term “Indian Tribe” for consistency
with its regulations governing other types of energy infrastructure projects.46
Specifically, the Commission proposes to define the term “Indian Tribe” as a Tribe that is

45

We note that the Environmental Justice Resource Report, discussed further below,
would require the applicant to describe any proposed mitigation measures intended to
avoid or minimize impacts on environmental justice communities, including any
community input received on the proposed mitigation measures and how that input
informed such measures. See infra P 65.
46
See, e.g., 18 CFR 4.30(b)(10) (2021) (defining “Indian Tribe” in reference to
an application for a license or exemption for a hydropower project) and 18 CFR 157.1
(defining “Indian Tribe” in reference to an application for a certificate of public
convenience and necessity for a natural gas pipeline project).

Docket No. RM22-7-000

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recognized by treaty, by federalFederal statute, or by the U.S. Department of the Interior
in its periodic publication of Tribal governments.47 We also propose to add a definition
for the term “environmental justice community” to assist applicant compliance with the
requirement in proposed § 50.4(a)(4) that an applicant develop and file an Environmental
Justice Public Engagement Plan.48 Specifically, the Commission proposes to define the
term “environmental justice community” as any disadvantaged community that has been
historically marginalized and overburdened by pollution, including, but not limited to,
minority populations, low-income populations, or indigenous peoples. We seek comment
on the proposed definition of “environmental justice community” and whether the
Commission should consider adopting an alternative definition, and, if so, why? The
Commission also proposes to revise the definitions of: (1) “national interest electric
transmission corridor” to include any geographic area that is expected to experience
energy transmission capacity constraints or congestion, for consistency with the IIJA’s
amendments to section 216(a); (2) “permitting entity,” for clarity and consistency with
the statute; and (3) “stakeholder,” for clarity and to ensure that environmental justice
community members and other interested persons or organizations are covered by the
definition.
Section 50.1 defines “affected landowners” as owners of property interests, as
noted in the most recent county/city tax records as receiving the tax notice, whose
property: (1) is directly affected (i.e., crossed or used) by the proposed activity including
all facility sites, rights-of-way, access roads, staging areas, and temporary workspace; or

47
48

25 CFR 83.6(a) (2021).
See supra PP 30-31.

Docket No. RM22-7-000

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(2) abuts either side of an existing right-of-way or facility site owned in fee by any utility
company, or abuts the edge of a proposed facility site or right-of-way which runs along a
property line in the area in which the facilities would be constructed, or contains a
residence within 50 feet of a proposed construction work area. The Commission is not
proposing to revise the definition of “affected landowners.” Nevertheless, we seek
comment on whether the Commission should revise the definition of “affected
landowners” to include landowners located within a certain geographic distance from the
proposed project facilities to address effects on visual (or other) resources, and, if so,
what geographic distance should be used and why?
2.

Section 50.3 – Filing and Formatting Requirements

Section 50.3 establishes the filing and formatting requirements for submissions in
the Commission’s pre-filing and application processes. The Commission proposes to
revise § 50.3(b) to eliminate the requirement that applications, amendments, and all
exhibits and other submissions must be submitted in an original and seven conformed
copies. Instead, to reduce waste, applicants would only be required to make these
submissions in electronic format.
3.

Section 50.4 – Stakeholder Participation
i.

Project Participation Plan

As described above, § 50.4(a) requires each applicant to develop and file a Project
Participation Plan for use during the pre-filing and application processes to ensure that
stakeholders have access to timely and accurate information on the proposed project and
permitting process. The Project Participation Plan must, among other things, identify
specific tools and actions to facilitate stakeholder communications and public

Docket No. RM22-7-000

- 21 -

information, including a regularly updated website. The Commission proposes to revise
§ 50.4(a)(1) to specify that an applicant’s website must include an interactive mapping
component to provide users with the ability to locate the proposed facilities in relation to
specific properties and other features. Additionally, as discussed above, the Commission
proposes to require an applicant to develop and file an Environmental Justice Public
Engagement Plan early in the pre-filing process, which would describe an applicant’s
outreach to environmental justice communities.49
ii.

Project Notification Requirements

As described above, § 50.4(c) sets forth the project notification requirements for
applicants. Section 50.4(c)(1) requires the applicant to distribute, by mail and newspaper
publication, project participation notices within a specified time following notice that
the pre-filing process has commenced and notice that an application has been filed.
Section 50.4(c)(1) directs the applicant to notify, among others, all affected landowners
and landowners with a residence within a quarter mile from the edge of the construction
right-of-way for the proposed project. The Commission proposes to revise § 50.4(c)(1)
for clarity and to ensure that applicants provide notice of the proposed project to all
interested individuals and organizations. We seek comment on whether a quarter-mile
limit is sufficient and, if not, what geographic distance should be used and why?
Section 50.4(c)(2)(i) describes the required contents of the pre-filing notice. For
clarity and to avoid confusion, the Commission proposes organizational changes in the
regulations to distinguish the requirements that pertain to any pre-filing notice that is sent

49

Supra PP 30-31.

Docket No. RM22-7-000

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by mail or published in a newspaper (proposed § 50.4(c)(2)(i)) from the requirements that
pertain only to any pre-filing notice that is sent by mail to an affected landowner
(proposed § 50.4(c)(2)(ii)).
In addition to this reorganization, we propose to add a requirement that any prefiling notice mailed to an affected landowner also include a copy of a Commission
document titled “Landowner Bill of Rights in Federal Energy Regulatory Commission
Electric Transmission Proceedings” (Landowner Bill of Rights). We seek comment on a
draft version of the Landowner Bill of Rights provided in the Appendix to this NOPR.
The Commission believes that requiring the applicant to provide this information at the
outset of the permitting process would help ensure that affected landowners are informed
of their rights in dealings with the applicant, in Commission proceedings, and in eminent
domain proceedings. We also propose to require that any pre-filing notice sent by mail or
published in the newspaper include information clarifying that the Commission’s prefiling and application processes are separate from any simultaneous stateState siting
proceeding and explaining how to participate in any such stateState siting proceeding.
The Commission expects applicants to make a good faith effort to ensure that
individuals and organizations entitled to receive project participation notices can
comprehend the contents of such notices. Accordingly, applicants should consider the
need for project participation notices in languages other than English as part of the
Environmental Justice Public Engagement Plan described above. Additionally, we seek
comment on what methods of notice beyond mail and newspaper publication might be
utilized in order to effectively reach the largest number of stakeholders as possible.

Docket No. RM22-7-000
4.

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Section 50.5 – Pre-filing Procedures

Section 50.5 describes the required pre-filing procedures for applicants seeking a
permit under FPA section 216. Section 50.5(c) describes the information that an
applicant must provide in the pre-filing request. The Commission proposes to require
that any pre-filing request include a detailed description of how the proposed project will
reduce capacity constraints and congestion on the transmission system (proposed
§ 50.5(c)(8)) and, as described above, a statement indicating whether an applicant intends
to comply with the Applicant Code of Conduct (proposed § 50.5(c)(9)).
Section 50.5(e) describes the information that an applicant must provide once the
Director of the Office of Energy Projects has issued a notice commencing the pre-filing
process, and the respective deadlines for filing such information. The Commission
proposes clarifications to § 50.5(e)(3) and (4) to ensure consistency with the project
notification requirements in § 50.4(c). We also propose to require an applicant to file
congestion-related information earlier in the Commission’s permitting process to provide
sufficient time for Commission staff to evaluate the adequacy of information needed to
conduct the required analyses under section 216(b)(4).50 Specifically, within 30 days of
the notice commencing the pre-filing process, we propose to require an applicant to
file a draft version of Exhibit H, System analysis data, required by § 50.7 (proposed
§ 50.5(e)(8)), showing how the proposed project will reduce capacity constraints and
congestion on the transmission system. In addition to a draft version of Exhibit H, we

50

FPA section 216(b)(4) requires the Commission to find that the proposed construction
or modification of transmission facilities will significantly reduce transmission
congestion in interstate commerce and protects or benefits consumers.

Docket No. RM22-7-000

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also propose to require an applicant to file additional supporting information such as
system impact study reports, relevant regional transmission plans, and, if applicable,
expert witness testimony and other relevant information submitted with the State
application(s) (proposed § 50.5(e)(7)).
5.

Section 50.6 – General Content of Applications

Section 50.6 describes the information that must be provided as part of an
application for a permit under FPA section 216. In § 50.6(c), the Commission proposes
to update certain terminology for clarity (e.g., deleting origin and termination points and
replacing those terms with point of receipt and point of delivery, respectively). We also
propose to revise § 50.6(d) to specify that verification that the proposed route lies within
a DOE-designated National Corridor must include the date of designation.
Each application filed under part 50 of the Commission’s regulations must provide
evidence demonstrating that one of the jurisdictional bases set forth in section 216(b)(1)
applies to the proposed facilities. To ensure consistency with section 216(b)(1)(A), as
amended by the IIJA, the Commission proposes to add to § 50.6(e)(1) the phrase “or
interregional benefits” to clarify that an application may provide evidence that a State
does not have the authority to consider the interstate benefits or interregional benefits
expected to be achieved by the proposed facilities. While the statute, as amended by the
IIJA, does not define the term “interregional,” the Commission for the purposes of this
NOPR proposes to apply a meaning that is consistent with Order No. 1000, which defines
an interregional transmission facility as one that is located in two or more transmission

Docket No. RM22-7-000

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planning regions.51 As discussed above, we also propose revisions to § 50.6(e)(3) to
ensure that the regulatory text tracks the IIJA’s amendments to section 216(b)(1)(C).52
6.

Section 50.7 – Application Exhibits

Section 50.7 identifies the exhibits that applicants must file with an application
and describes the technical data that must be provided in each exhibit. Section 50.7(g)
requires each applicant to submit Exhibit G—Engineering data, which must include a
detailed project description. For consistency and clarity, the Commission proposes
revisions to ensure that the project description includes points of receipt and delivery
(§ 50.7(g)(1)(i)), line design features that minimize audible corona noise during rain or
fog (§ 50.7(g)(1)(vi)), and overhead and underground structures (§ 50.7(g)(2)(ii)).
The Commission also proposes revisions to § 50.7(h), which describes the
requirements for Exhibit H—System analysis data. Specifically, we propose to:
(1) require the analysis to include project impacts on transmission capacity constraints
(§ 50.7(h)(1)); (2) clarify that the analysis must include steady-state, short-circuit, and
dynamic power flow cases, as applicable, and consider planned and forecasted forced
outage rate for generation and transmission and generation dispatch scenarios
(§ 50.7(h)(2)); and (3) require the analysis to identify how the proposed project will
affect congestion on neighboring transmission systems (§ 50.7(h)(3)). This information
is necessary for Commission staff to evaluate whether the proposed facilities would

51

Transmission Plan. & Cost Allocation by Transmission Owning & Operating Public
Utilities, Order No. 1000, 76 FR 49842 (Aug. 11, 2011), 136 FERC ¶ 61,051, at
P 482 n.374 (2011).
52
Supra P 18.

Docket No. RM22-7-000

- 26 -

significantly reduce transmission congestion and protect or benefit consumers, as
required by section 216(b)(4).
7.

Section 50.11 – General Permit Conditions

Section 50.11 lists the general conditions that would apply to any permit issued
under part 50 of the Commission’s regulations. The Commission proposes clarifying
edits to §§ 50.11(a) and (b). The proposed revision to § 50.11(b) is intended to foreclose
a situation where an applicant would need to accept a permit in instances where rehearing
has been denied by operation of law and the applicant has appealed, but the Commission
intends to issue a future order before the record is filed with the court of appeals.
In addition, to balance our commitment to expeditiously respond to parties’
concerns in comprehensive orders on rehearing and the serious concerns posed by the
possibility of construction proceeding prior to the completion of Commission review, we
propose to add language to § 50.11(d) that would, under certain circumstances and for a
limited time, preclude the issuance of authorizations to proceed with construction of
transmission facilities authorized under FPA section 216 while requests for rehearing of
orders issuing permits remain pending before the Commission. This proposed addition,
which mirrors a regulation that the Commission previously adopted in the natural gas
context,53 would ensure that construction of approved transmission facilities does not
begin during 30-day rehearing period and, if a qualifying rehearing request is filed, until
that request is no longer pending before the Commission, the record of the proceeding is

53

See Limiting Authorizations to Proceed with Construction Activities Pending
Rehearing, Order No. 871-B, 86 FR 26150 (May 13, 2021), 175 FERC ¶ 61,098, order
on reh’g, Order No. 871-C, 86 FR 43077 (Aug. 6, 2021), 176 FERC ¶ 61,062 (2021).

Docket No. RM22-7-000

- 27 -

filed with the court of appeals, or 90 days has elapsed since the rehearing request was
deemed denied by operation of law.
8.

Proposed Clarifying Revisions to 18 CFR Part 50

In addition to the proposed revisions discussed above, we propose minor, nonsubstantive edits throughout part 50 of our regulations. These proposed revisions are
intended to clarify or streamline existing requirements, to correct grammatical errors and
cross-references, and to maintain consistency.
E.

Regulations Implementing NEPA

In Order No. 689, in addition to establishing the requirements for applications
filed under FPA section 216, the Commission also adopted several amendments to its
NEPA regulations. These amendments included revisions or additions to: § 380.3(c)
(adding electric transmission projects to the list of project types for which applicants
must provide environmental information), § 380.5(b)(14) (adding electric transmission
facilities to the list of project types for which the Commission will prepare an
Environmental Assessment), § 380.6(a)(5) (adding major electric transmission facilities
using right-of-way in which there is no existing facility to the list of project types for
which the Commission will prepare an Environmental Impact Statement), § 380.8
(designating the Office of Energy Projects as responsible for the preparation of
environmental documents for electric transmission facilities), § 380.10(a)(2)(iii)
(clarifying that pre-filing proceedings for electric transmission facilities are not open to
motions to intervene), and § 380.15 (stating that electric transmission project sponsors
must comply with the National Electric Safety Code and transmission rights-of-way are
subject to the same construction and maintenance requirements as natural gas pipelines).

Docket No. RM22-7-000

- 28 -

The Commission also added a new section to its NEPA regulations, 18 CFR
380.16, which describes the specific environmental information that must be included in
applications for permits to site transmission facilities under section 216. Section 380.16
currently requires each applicant to submit an environmental report that includes eleven
resource reports, as follows.
Resource Report 1 requires the applicant to describe the project and proposed
construction methods and requirements; submit topographic maps, aerial images and/or
photographs showing the proposed project facilities; identify all authorizations and
mitigation measures required to construct the proposed project; and provide the names
and addresses of all affected landowners.54
Resource Report 2 requires the applicant to provide information necessary to
determine the impact of the proposed project on water use and water quality and
proposed mitigation measures.55
Resource Report 3 requires the applicant to describe aquatic life, wildlife, and
vegetation in the vicinity of the proposed project; the expected impacts on these
resources; and proposed mitigation measures.56
Resource Report 4 requires the applicant to provide information necessary for the
Commission to consider the effect of a proposed project on cultural resources in
furtherance of the Commission’s obligations under section 106 of the National Historic
Preservation Act (NHPA).57

54

18 CFR 380.16(c) (2021).
Id. 380.16(d).
56
Id. 380.16(e).
57
Id. 380.16(f).
55

Docket No. RM22-7-000

- 29 -

Resource Report 5 requires the applicant to describe the socioeconomic impact
area and to identify and quantify the impacts of constructing and operating the proposed
project on factors affecting towns and counties in the project vicinity.58
Resource Report 6 requires the applicant to describe geological resources and
hazards in the project area that might be directly or indirectly affected by the proposed
facility or may place the proposed facility at risk, the potential effects of those hazards on
the facility, and the methods to reduce the effects or risks.59
Resource Report 7 requires the applicant to describe the soils that will be affected
by the proposed project and measures proposed to minimize or avoid impacts.60
Resource Report 8 requires the applicant to provide information concerning the
uses of land in the project area and proposed mitigation measures to protect and enhance
existing land use.61
Resource Report 9 requires the applicant to describe alternatives to the project,
including the “no action” alternative, and to compare the environmental impacts of such
alternatives.62
Resource Report 10 requires the applicant to address reliability and safety
considerations, including the potential hazard to the public from the proposed facilities
resulting from accidents or natural catastrophes; how these events would affect

58

Id. 380.16(g).
Id. 380.16(h).
60
Id. 380.16(i).
61
Id. 380.16(j).
62
Id. 380.16(k).
59

Docket No. RM22-7-000

- 30 -

reliability; and the procedures and design features employed to reduce potential
hazards.63
Finally, Resource Report 11 requires the applicant to provide design and
engineering data, including general design and engineering drawings of all major project
structures, and a supporting design report.64
As explained above, the Fourth Circuit’s 2009 Piedmont decision vacated Order
No. 689’s amendments to the Commission’s NEPA regulations because the court found
that the Commission had failed to consult with CEQ prior to issuing the revised
regulations.65 Notwithstanding the Fourth Circuit’s vacatur, the NEPA amendments set
forth in Order No. 689 are still reflected in 18 CFR Part 380. We seek comment on the
whole of the Commission’s NEPA regulations pertaining to electric transmission
facilities, as well as the specific proposed changes to those regulations described further
below. The Commission will consult with CEQ on the proposed changes to its NEPA
regulations described below as well as those originally implemented by Order No. 689.
1.

Tribal Resources Resource Report

The Commission recognizes the unique relationship between the United States and
Indian Tribes, acknowledges its trust responsibility to Indian Tribes, and endeavors to
work with tribes on a government-to-government basis, seeking to address the effects of

63

Id. 380.16(l).
Id. 380.16(m).
65
See supra P 11.
64

Docket No. RM22-7-000

- 31 -

proposed projects on Tribal rights and resources through consultation.66 To evaluate the
effects of proposed transmission facilities on Tribal rights and resources, the
Commission’s existing regulations require an applicant to submit information describing
the project’s effects on Tribes, Tribal lands, and Tribal resources as part of the Land use,
recreation, and aesthetics resource report.67 Specifically, the applicant must identify
Tribes that may attach religious and cultural significance to historic properties within the
right-of-way or in the project vicinity;68 provide available information on traditional
cultural and religious properties;69 and ensure that specific site or location information,
disclosure of which will create a risk of harm, theft, or destruction or violate
federalFederal law, is not disclosed.70
The Commission proposes to relocate the existing Tribal resource-related
information requirements to a new, standalone resource report, Resource Report 6—
Tribal resources, in proposed § 380.16(h). In addition to consolidating the existing
requirements in a new resource report,71 we also propose to require an applicant to
identify potentially-affected Tribes (proposed § 380.16(h)(1)); describe the impacts of
project construction, operation, and maintenance on Tribes and Tribal interests, including
impacts related to enumerated resource areas (proposed § 380.16(h)(2)); and describe
project impacts that may affect Tribal interests that are not necessarily associated with
particular resource areas (e.g., treaties, Tribal practices, or agreements) (proposed

66

18 CFR 2.1c (2021).
See id. § 380.16(jh)(5).
68
Id. § 380.16(jh)(5)(i).
69
Id.
70
Id. § 380.16(jh)(5)(ii).
71
See proposed §§ 380.16(h)(4)-(5).
67

Docket No. RM22-7-000

- 32 -

§ 380.16(h)(3)). The Commission believes this information is necessary to fully evaluate
the effects of a proposed project in furtherance of the Commission’s trust responsibility
and our statutory obligations under the FPA and NEPA.
2.

Environmental Justice Resource Report

In conducting NEPA reviews of proposed transmission facilities, the Commission
intends to follow the instruction of Executive Orders 12898,72 14008,73 and 13985,74 as
described above, and relevant CEQ guidance75 and EPA’s Promising Practices report76
on assessing impacts on environmental justice communities under NEPA.77 Section
380.16 does not currently require an applicant to submit information on the potential

72

E.O. 12898, 59 FR 7629 (Feb. 16, 1994). While the Commission is not one
of the specified agencies in Executive Order 12898, the Commission nonetheless
intends to address environmental justice in its analysis, in accordance with our governing
regulations and statutory duties. 16 U.S.C. 824p(b)(3); 18 CFR 380.16(g) (2021)
(requiring applicants to submit information about the socioeconomic impact area of a
project for the Commission’s consideration during NEPA review); see also FERC,
Guidance Manual for Environmental Report Preparation at 4-76 to 4-82 (Feb. 2017),
https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf
(providing guidance for preparing Resource Report 5—Socioeconomics, including
addressing project effects on environmental justice communities, for applications filed
under the Natural Gas Act).
73
E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
74
E.O. 13985, 86 FR 7009 (Jan. 25, 2021).
75
CEQ’s Environmental Justice Guidance,
https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQEJGuidance.pdf. CEQ offers recommendations on how Federal agencies can provide
opportunities for effective community participation in the NEPA process, including
identifying potential effects and mitigation measures in consultation with affected
communities and improving the accessibility of public meetings, crucial documents, and
notices.
76
See generally Promising Practices, https://www.epa.gov/sites/default/files/201608/documents/nepa_promising_practices_document_2016.pdf.
77
NEPA requires the Commission before taking an action, to analyze, disclose, and take
a “hard look” at the potential environmental impacts of that action. See 42 U.S.C.
4332(2)(C); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
(discussing the twin aims of NEPA).

Docket No. RM22-7-000

- 33 -

project impacts on environmental justice communities. Therefore, the Commission
proposes to add a new resource report, Resource Report 7—Environmental justice, in
proposed § 380.16(i). Specifically, the resource report would require the applicant to
identify environmental justice communities within the project’s area of potential impacts
(proposed § 380.16(i)(1));78 describe the impacts of project construction, operation, and
maintenance on environmental justice communities, including whether any impacts
would be disproportionately high and adverse (proposed § 380.16(i)(2)); discuss
cumulative impacts on environmental justice communities, including whether any
cumulative impacts would be disproportionately high and adverse (proposed
§ 380.16(i)(3)); and describe any proposed mitigation measures intended to avoid or
minimize impacts on environmental justice communities, including any community input
received on the proposed measures and how the input informed the proposed measures
(proposed § 380.16(i)(4)).
The Commission also proposes a corresponding addition to § 380.2, which sets
forth the definitions for the Commission’s NEPA regulations. Specifically, the
Commission proposes to define the term “environmental justice community” in proposed
§ 380.2(fh). The proposed definition of the term “environmental justice community” is
identical to the definition that the Commission proposes to add to § 50.1.79

78

As discussed, to identify environmental justice communities, Commission staff
currently reviews U.S. Census Bureau population data for the applicable location and
applies population thresholds provided by EPA and CEQ in their environmental justice
recommendations and guidance. See supra at note 40.
79
See supra P 32.

Docket No. RM22-7-000

- 34 -

Finally, while we recognize that EPA and CEQ are in the process of updating their
guidance regarding environmental justice, we expect applicants to utilize the latest
guidance and data from CEQ, EPA, the Census Bureau, and other authoritative sources.
The Commission intends to review and incorporate any updated guidance from CEQ and
EPA in our future analyses, as appropriate.
3.

Air Quality and Environmental Noise Resource Report

Section 380.16(l)(7) requires applicants, as part of the existing Reliability and
safety resource report, to indicate the noise level generated by the proposed transmission
line and compare the noise level to any known noise ordinances for the zoning districts
through which the line will pass. Section 380.16 does not currently require information
on proposed project emissions and the corresponding effects on air quality and the
environment.
To fully evaluate the effects of a proposed project in furtherance of our obligations
under NEPA,80 the Commission believes additional information on emissions, air quality,
and environmental noise is necessary. Therefore, the Commission proposes to add a new
resource report, Resource Report 110—Air quality and environmental noise, in proposed
§ 380.16(m). Proposed Resource Report 101 would require the applicant to estimate
emissions from the proposed project and the corresponding impacts on air quality and the
environment, estimate the impact of the proposed project on the noise environment, and
describe proposed measures to mitigate the impacts. Consistent with the Commission’s

As noted above, NEPA requires the Commission to take a “hard look” at the
environmental impacts of a proposed action. See 42 U.S.C. 4332(2)(C); Balt. Gas &
Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. at 97.
80

Docket No. RM22-7-000

- 35 -

requirements for natural gas compressor stations,81 we also propose to establish a noise
limit for proposed substations and appurtenant facilities at pre-existing noise-sensitive
areas, such as schools, hospitals, or residences.
Under proposed § 380.16(m)(1), the Air quality and environmental noise resource
report must describe the existing air quality in the project area, indicate if any project
facilities are located within a designated nonattainment or maintenance area under the
Clean Air Act,82 and provide the distance from the project facilities to any Class I area in
the project vicinity. Under proposed § 380.16(m)(3), the resource report must estimate
emissions from the proposed project and the corresponding impacts on air quality and the
environment. Specifically, the applicant must provide the reasonably foreseeable
emissions from construction, operation, and maintenance of the project facilities; provide
a comparison of emissions with applicable General Conformity thresholds (40 CFR part
93) for each designated nonattainment or maintenance area; identify the corresponding
impacts on communities and the environment in the project area; and describe any
proposed mitigation measures to control emissions.
Under proposed § 380.16(m)(2), the resource report must, for proposed
substations and appurtenant facilities, quantitatively describe existing noise levels at
nearby noise-sensitive areas. Under proposed § 380.16(m)(4), the resource report must
provide a quantitative estimate of project operation (including proposed transmission
lines, substations, and other appurtenant facilities) on noise levels. The operational noise
estimates must demonstrate that the proposed project will comply with applicable State

81
82

18 CFR 380.12(k)(4)(v)(A) (2021).
42 U.S.C. 7401 et seq.

Docket No. RM22-7-000

- 36 -

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 preexisting noise-sensitive area.83 Additionally, the resource report must describe the impact
of proposed construction activities on the noise environment and any proposed mitigation
measures to reduce noise impacts.
4.

Visual Resources

Section 380.16(j)(11) requires applicants, as part of the existing Land use,
recreation, and aesthetics resource report, to describe the visual characteristics of the
lands and waters affected by the project, including how the transmission line facilities
will impact the visual character of the project right-of-way and surrounding vicinity and
related mitigation measures. The Commission’s existing regulations encourage, but do
not require, applicants to supplement this description with visual aids.
The Commission believes that more specific information is needed to evaluate the
effects of the proposed project facilities on visual resources. Above ground high-voltage
transmission lines may cause substantial visual contrast and be a major focus for viewer
attention. To assess visual impacts of infrastructure projects, including high-voltage
transmission lines, Commission staff has, in some cases, used the Bureau of Land

83

The EPA has indicated that a day-night noise level of 55 decibels on the A-weighted
scale protects the public from indoor and outdoor activity interference. The Commission
has adopted this criterion and uses it to evaluate the potential noise impact from operation
of natural gas compressor facilities. Elba Express Co., L.L.C., 141 FERC ¶ 61,027, at P
21 n.12 (2012). We think it is appropriate to use this same criterion to evaluate the
potential noise impact from operation of substations and appurtenant facilities.

Docket No. RM22-7-000

- 37 -

Management’s Visual Resource Management methodology,84 and other agencies have
used the Federal Highway Administration’s Visual Impact Assessment for Highway
Projects.85 The Commission seeks comment on whether either of these tools, or any
other tools, are appropriate for our analysis. Additionally, we believe that visual aids are
necessary to support this evaluation. Therefore, in proposed § 380.16(l)(10), we propose
to require the applicant to identify the area of potential visual effects from the proposed
project; describe any visually sensitive areas, visual classifications, and key viewpoints in
the project vicinity; and provide visual aids to support the evaluation of visual impacts
from the proposed project.
5.

Additional Proposed Revisions to 18 CFR 380.16

Because the Commission proposes to add to § 380.16 three new resource reports
(Tribal resources, Environmental justice and Air quality and environmental noise), we
propose to redesignate all resource reports after Resource Report 5—Socioeconomics as
follows: Resource Report 6—Tribal resources (proposed § 380.16(h)); Resource Report
7—Environmental justice (proposed § 380.16(i)); Resource Report 8—Geological
resources (proposed § 380.16(j)); Resource Report 9—Soils (proposed § 380.16(k));
Resource Report 10—Land use, recreation, and aesthetics (proposed § 380.16(l));
Resource Report 11—Air quality and environmental noise (proposed § 380.16(m));
Resource Report 12—Alternatives (proposed § 380.16(n)); Resource Report 13—

84

See, e.g., Final Environmental Impact Statement for the Swan Lake North Pumped
Storage Project (P-13318-003).
85
See, e.g., Final Environmental Impact Statement for the Susquehanna to Roseland
500kv Transmission Line Right-of-Way and Special Use Permit at 588,
https://parkplanning.nps.gov/document.cfm?documentID=49285&parkID=220&projectI
D=25147.

Docket No. RM22-7-000

- 38 -

Reliability and safety (proposed § 380.16(o)); and Resource Report 14—Design and
engineering (proposed § 380.16(p)).
In addition to the proposed addition of three new resource reports and the
proposed changes to the visual resources requirements described above, the Commission
proposes revisions throughout § 380.16. We discuss the main substantive revisions
below.
In § 380.16(b)(3), we propose to clarify the scope of cumulative effects that must
be identified in each resource report for consistency with the definition of cumulative
effects in CEQ’s NEPA regulations.86
In § 380.16(c)(2), we propose to revise Resource Report 1—General project
description to more clearly identify the types of facilities that must be depicted on the
topographic maps and aerial images or photo-based alignment sheets. We also propose to
add requirements to describe any proposed horizontal directional drilling and pile driving
that may be necessary (§ 380.16(c)(3)), indicate the days of the week and times of the day
during which construction activities would occur, and describe any proposed nighttime
construction activities (§ 380.16(c)(4)).
In § 380.16(d)(6), the Commission proposes to add a requirement that Resource
Report 2—Water use and quality describe the impact of proposed land clearing and
vegetation management practices on water resources. In § 380.16(e), the Commission
proposes to clarify that Resource Report 3—Fish, wildlife, and vegetation must describe
potential impacts on interior forest (§ 380.16(e)(3)), as well as the impact of proposed

86

40 CFR 1508.1(g)(3) (2021).

Docket No. RM22-7-000

- 39 -

land clearing and vegetation management practices on fish, wildlife, and vegetation
(§ 380.16(e)(4)).
In § 380.16(k)(4), the Commission proposes to add a requirement that Resource
Report 9—Soils describe any proposed mitigation measures intended to reduce the
potential for adverse impacts to soils or agricultural productivity.
In § 380.16(l)(4), the Commission proposes to add a requirement that Resource
Report 10—Land use, recreation, and aesthetics identify the area of direct effect of the
proposed facilities on interior forest. The Commission also proposes to: (1) clarify the
scope of facilities (e.g., buildings, electronic installations, airstrips, airports, and
heliports) in the project vicinity that must be identified; (2) clarify the corresponding
requirements to depict such facilities on the maps and photographs in Resource Report 1
(§ 380.16(l)(65)); and (3) require copies of any consultation with the Federal Aviation
Administration (§ 380.16(l)(65)(iii)).
In § 380.16(o)(3), the Commission proposes to add a requirement that Resource
Report 13—Reliability and safety include a discussion of any proposed measures
intended to ensure that the facilities proposed by the applicant would be resilient against
future climate change impacts. We also propose to clarify the existing requirement that
the Reliability and safety resource report discuss contingency plans for maintaining
service or reducing downtime by adding that such contingency plans should ensure that
the proposed facilities would not adversely affect the bulk electric system in accordance
with applicable North American Electric Reliability Corporation reliability standards
(§ 380.16(o)(4)). Finally, given the addition of new Resource Report 11—Air quality
and environmental noise, the Commission proposes to eliminate from the Reliability and

Docket No. RM22-7-000

- 40 -

safety resource report the now redundant requirement that the applicant must indicate the
noise level generated by the transmission line.
For all of the proposed revisions discussed above, we seek comment on, as
appropriate, whether the Commission has authority to impose such changes and, if it
does, whether it should impose such changes. We also propose minor, non-substantive
edits throughout § 380.16. These proposed revisions are intended to clarify or streamline
existing requirements, to correct grammatical errors and cross-references, and to maintain
consistency.
6.

Proposed Revisions to 18 CFR 380.13 and 380.14

Finally, the Commission also proposes to amend §§ 380.13 (Compliance with the
Endangered Species Act) and 380.14 (Compliance with the NHPA) to add crossreferences to the appropriate paragraphs of § 380.16. We believe the prior omission of
such cross-references to be an oversight. Section 380.14 also contains a proposed
revision to correct the legal citation for section 106 of the NHPA,87 following the act’s
recodification in title 54 of the U.S. Code.
X.

Information Collection Statement
The Paperwork Reduction Act88 requires each Federal agency to seek and obtain

the Office of Management and Budget’s (OMB) approval before undertaking a collection
of information directed to ten or more persons or contained in a rule of general
applicability. OMB regulations require approval of certain information collection

87
88

54 U.S.C. 306108.
44 U.S.C. 3501-3521.

Docket No. RM22-7-000

- 41 -

requirements contemplated by proposed rules.89 Upon approval of a collection of
information, OMB will assign an OMB control number and an expiration date.
Respondents subject to the filing requirements of a rule will not be penalized for failing
to respond to the collection of information unless the collection of information displays a
valid OMB control number.
Public Reporting Burden: In this NOPR, the Commission proposes to revise its
regulations governing applications for permits to site transmission facilities under section
216 of the FPA. This proposed rule would modify certain reporting and recordkeeping
requirements included in FERC-729 (OMB Control No. 1902-0239).90
The proposed revisions to the Commission’s regulations associated with the
FERC-729 information collection are intended to ensure consistency with section 216 of
the FPA, as amended by the IIJA. The Commission also proposes revisions to modernize
certain regulatory requirements and to incorporate other updates and clarifications to
provide for the efficient and timely review of permit applications. Several of the
proposed revisions have information collection implications. For example, the
Commission proposes to require an applicant to:
• maintain an affected landowner contact log, provide certain information to
affected landowners, file an affirmative statement with the Commission indicating
the applicant’s intent to comply with the Applicant Code of Conduct, and include

89

See 5 CFR 1320.11 (2021).
FERC-729 includes the reporting and recordkeeping requirements for “Electric
Transmission Facilities.”
90

Docket No. RM22-7-000

- 42 -

compliance updates as part of the monthly status reports required during the prefiling process;91
• provide additional congestion and system analysis information during the prefiling process and as part of the application;
• develop and file an environmental justice public engagement plan describing
completed and planned targeted outreach efforts during the pre-filing process and
after an application has been submitted;
• develop and file a new resource report describing the proposed project’s impacts
on Tribal resources;
• develop and file a new resource report describing the proposed project’s impacts
on environmental justice communities;
• develop and file a new resource report describing the proposed project’s impact on
air quality and environmental noise;
• provide additional information describing the proposed project’s visual impacts;
and
• provide additional information as part of the following existing resource reports:
General project description; Water use and quality; Fish, wildlife, and vegetation;
Soils; Land use, recreation, and aesthetics; and Reliability and safety.
These proposed revisions would represent an increase in information collection
requirements and burden for FERC-729.

91

These requirements would only apply to applicants who elect to comply with the
Applicant Code of Conduct set forth in proposed § 50.12.

Docket No. RM22-7-000

- 43 -

The Commission recognizes that some of the estimates for the information
collection activities proposed in this NOPR are novel. Therefore, the Commission seeks
comments on the burden and costs associated with the requirements contained in this
NOPR.
The estimated burden and cost for the requirements contained in this NOPR
follow.
Annual Changes Proposed by the NOPR in Docket No. RM22-7-000
No. of
Avg. Burden
Total Annual
No. of
Total No. of
Hrs. & Cost
Responses92
Burden
Hours &
Respondents
Responses
Per Response93
per
Total Annual Cost
(1)
(1)X(2)=(3)
Respondent
(3)X(4)=5
(4)
(2)
Current FERC 729 Collection
FERC-729
1
Applicant Code
of Conduct94
Environmental
Justice Public
Engagement
Plan
Congestion and
System
Analysis Data96

92

1
1
Proposed Revisions in RM22-7-000

9,600 hrs.
$873,600

9,600 hrs.
$873,600

195

1

1

136 hrs;
$12,376

136 hrs.;
$12,376

1

1

1

24 hrs.;
$2,184

24 hrs.;
$2,184

1

1

1

160 hrs.;
$14,560

160 hrs.;
$14,560

We consider the filing of an application, including the mandatory pre-filing
information, to be a “response.”
93
The estimates for cost per response are derived using the following formula: Average
Burden Hours per Response * $91 per Hour = Average Cost per Response.
The hourly cost figure is the FY2022 FERC average annual salary plus benefits
($188,992/year or $91/hour). Commission staff estimates that industry costs for salary
plus benefits are similar to Commission costs.
94
Notwithstanding that compliance with the Applicant Code of Conduct is voluntary, we
are providing the estimated burden hours associated with such compliance.
95
After implementation of this proposed rule, we estimate one application for a permit to
site electric transmission facilities will be filed per year.
96
This category covers the proposed updates to the congestion and system analysis data
that an applicant must provide during the pre-filing process and as part of the application
in Exhibit H, System analysis data.

Docket No. RM22-7-000

- 44 -

Annual Changes Proposed by the NOPR in Docket No. RM22-7-000
No. of
Avg. Burden
Total Annual
No. of
Total No. of
Hrs. & Cost
Responses92
Burden
Hours &
Respondents
Responses
Per Response93
per
Total Annual Cost
(1)
(1)X(2)=(3)
Respondent
(3)X(4)=5
(4)
(2)
Other Updates
to 18 CFR pt.
5097
Resource
Report: Tribal
Resources
Resource
Report:
Environmental
Justice
Resource
Report: Air
Quality &
Environmental
Noise
Information on
Visual Impacts
Other Updates
to 18 CFR pt.
38098
TOTAL

1

1

1

28 hrs.;
$2,548

28 hrs.;
$2,548

1

1

1

40 hrs.;
$3,640

40 hrs.;
$3,640

1

1

1

80 hrs.;
$7,280

80 hrs.;
$7,280

1

1

1

1

1

1

296 hrs.;
$26,936
100 hrs.;
$9,100

296 hrs.;
$26,936
100 hrs.;
$9,100

1

1

1

148 hrs.;
$13,468

148 hrs.;
$13,468
1,012 hrs.;
$92,092

11

Titles: FERC-729 - Electric Transmission Facilities.
Action: Revisions to information collection FERC-729.
OMB Control Nos.: 1902-0238 (FERC-729).

This category covers additional proposed updates to part 50 of the Commission’s
regulations that involve minor increases in burden (e.g., adding an interactive mapping
feature to an applicant’s project website and including additional material in the project
notifications mailed to affected landowners) as well as a reduction in burden associated
with eliminating the requirement that an applicant provide seven paper copies of an
application, exhibits, and other submittals.
98
This category covers a variety of non-substantial proposed updates to § 380.16 of the
Commission’s regulations that, if adopted, would require an applicant to develop and
submit additional information as part of the following resource reports: General project
description; Water use and quality; Fish, wildlife, and vegetation; Soils; Land use,
recreation, and aesthetics; and Reliability and safety.
97

Docket No. RM22-7-000

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Respondents: Entities proposing to construct electric transmission facilities
pursuant to the Commission’s authority under section 216 of the FPA.
Frequency of Information: Ongoing.
Necessity of Information: The new information collection requirements are
necessary for the Commission to carry out its responsibilities under the FPA, as amended
by the IIJA, and NEPA. The required information would enable the Commission to
review the features of the proposed project and determine whether the proposed project
meets the statutory criteria enumerated in section 216(b) of the FPA. In addition, the
proposed revisions to the Commission’s mandatory pre-filing process that would require
certain information to be filed earlier in the process would help ensure that an application
can be acted on no later than one year after the date of filing in compliance with section
216(h)(4)(B). The revised regulations would affect only the number of entities that
would pursue a permit to site electric transmission facilities.
Internal Review: The Commission has reviewed the proposed revisions and has
determined that they are necessary. These requirements conform to the Commission’s
need for efficient information collection, communication, and management within the
energy industry. The Commission has assured itself, by means of internal review, that
there is specific, objective support for the burden estimates associated with the
information collection requirements.
Interested persons may obtain information on the reporting requirements by
contacting the Federal Energy Regulatory Commission, 888 First Street, NE,
Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by
email to [email protected] or by phone (202) 502-8663.

Docket No. RM22-7-000

- 46 -

Comments concerning the collections of information and the associated burden
estimates may also be sent to: Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th Street, NW, Washington, DC 20503 [Attention:
Desk Officer for the Federal Energy Regulatory Commission]. Due to security concerns,
comments should be sent electronically to the following email address:
[email protected]. Comments submitted to OMB should refer to FERC729 (OMB Control No. 1902-0238).
XI.

Environmental Analysis
The Commission is required to prepare an Environmental Assessment or an

Environmental Impact Statement for any action that may have a significant effect on the
human environment.99 The Commission has categorically excluded certain actions from
this requirement as not having a significant effect on the human environment, including
the promulgation of rules that are clarifying, corrective, or procedural, or that do not
substantially change the effect of legislation or the regulations being amended.100
Because the actions proposed herein fall within this categorical exclusion, preparation of
an Environmental Assessment or an Environmental Impact Statement is not required.
XII.

Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA)101 generally requires a description

and analysis of proposed rules that will have significant economic impact on a substantial

99

Regs. Implementing the Nat’l Env’l Pol’y Act of 1969, Order No. 486,
52 FR 47897 (Dec. 10, 1987), FERC Stats. & Regs. ¶ 30,783 (1987) (cross-referenced
at 41 FERC ¶ 61,284).
100
101

18 CFR 380.4(a)(2)(ii) (2021).
5 U.S.C. 601-612.

Docket No. RM22-7-000

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number of small entities. The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a proposed rule and minimize any significant
economic impact on a substantial number of small entities.102 In lieu of preparing a
regulatory flexibility analysis, an agency may certify that a proposed rule will not have a
significant economic impact on a substantial number of small entities.103
The Small Business Administration’s (SBA) Office of Size Standards develops the
numerical definition of a small business.104 The SBA size standard for electric utilities is
based on the number of employees, including affiliates.105 Under SBA’s size standards, a
transmission owner covered under the category of Electric Bulk Power Transmission and
Control (NAICS code 221121)106 is small if, including its affiliates, it employs 500 or
fewer people.107
In Order No. 689, the Commission expected that entities seeking approval for
transmission siting projects under FPA section 216 would be major transmission utilities
capable of financing complex and costly transmission projects.108 At that time, the
Commission anticipated that the high cost of constructing transmission facilities would
preclude entry into this field by small entities as defined by the RFA.109 Though the SBA

102

Id. 603(c).
Id. 605(b).
104
13 CFR 121.101 (2021).
105
Id. 121.201.
106
The North American Industry Classification System (NAICS) is an industry
classification system that Federal statistical agencies use to categorize businesses for the
purpose of collecting, analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry Classification System,
https://www.census.gov/eos/www/naics/.
107
13 CFR 121.201 (Sector 22 - Utilities).
108
Order No. 689 Final Rule, 117 FERC ¶ 61,202 at P 73.
109
Id.
103

Docket No. RM22-7-000

- 48 -

size standard for electric utilities has changed from megawatt hours to number of
employees since Order No. 689 was issued, we continue to find it unlikely that small
entities in any number, let alone a substantial number, will pursue the permitting of
transmission projects before the Commission. Since Order No. 689, only Southern
California Edison, which would not qualify as a small entity under the SBA’s current size
standards, has participated in the Commission’s pre-filing process for applications to site
transmission facilities under section 216. To date, the Commission has not received any
applications for permits to site transmission facilities under section 216.
Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that
this proposed rule would not have a significant economic impact on a substantial number
of small entities.
XIII. Comment Procedures
The Commission invites interested persons to submit comments on the matters and
issues proposed in this notice to be adopted, including any related matters or alternative
proposals that commenters may wish to discuss. Comments are due [INSERT DATE
90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
Comments must refer to Docket No. RM22-7-000 and must include the commenter’s
name; the organization they represent, if applicable; and their address in their comments.
All comments will be placed in the Commission’s public files and may be viewed,
printed, or downloaded remotely as described in the Document Availability section
below. Commenters on this proposal are not required to serve copies of their comments
on other commenters.

Docket No. RM22-7-000

- 49 -

The Commission encourages comments to be filed electronically via the eFiling
link on the Commission’s website at http://www.ferc.gov. The Commission accepts most
standard word processing formats. Documents created electronically using word
processing software must be filed in native applications or print-to-PDF format and not in
a scanned format. Commenters filing electronically do not need to make a paper filing.
Commenters that are not able to file comments electronically may file an original
of their comment by U.S. Postal Service mail or by courier or other delivery services.
For submission sent via U.S. Postal Service only, filings should be mailed to: Federal
Energy Regulatory Commission, Office of the Secretary, 888 First Street, NE,
Washington, DC 20426. Submission of filings other than by U.S. Postal Service should
be delivered to: Federal Energy Regulatory Commission, 12225 Wilkins Avenue,
Rockville, MD 20852.
XIV. Document Availability
In addition to publishing the full text of this document in the Federal Register,
the Commission provides all interested persons an opportunity to view and/or print the
contents of this document via the Internet through the Commission’s Home Page
(http://www.ferc.gov). At this time, the Commission has suspended access to the
Commission’s Public Reference Room due to the President’s March 13, 2020
proclamation declaring a National Emergency concerning the Novel Coronavirus Disease
(COVID-19).
From the Commission’s Home Page on the Internet, this information is available
on eLibrary. The full text of this document is available on eLibrary in PDF and
Microsoft Word format for viewing, printing, and/or downloading. To access this

Docket No. RM22-7-000

- 50 -

document in eLibrary, type the docket number excluding the last three digits of this
document in the docket number field.
User assistance is available for eLibrary and the Commission’s website during
normal business hours from the Commission’s Online Support at (202) 502-6652 (toll
free at 1-866-208-3676) or email at [email protected], or the Public Reference
Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at
[email protected].
List of Subjects
18 CFR Part 50
Administrative practice and procedure, Electric power, Reporting and
recordkeeping requirements.
18 CFR Part 380
Environmental impact statements, Reporting and recordkeeping requirements.
By direction of the Commission. Commissioner Danly is concurring with a separate
statement attached.
Commissioner Christie is concurring with separate
statement attached.
(SEAL)

Issued December 15, 2022
Debbie-Anne A. Reese,
Deputy Secretary.

Docket No. RM22-7-000

- 51 -

In consideration of the foregoing, the Commission proposes to amend Parts 50 and
380, Chapter I, Title 18, Code of Federal Regulations, as follows.
PART 50 – APPLICATIONS FOR PERMITS TO SITE INTERSTATE
ELECTRIC TRANSMISSION FACILITIES
1. The authority citation for part 50 continues to read as follows:
Authority: 16 U.S.C. 824p; DOE Delegation Order No. 00-004.00A.
2. Amend § 50.1 as follows:
a. Add a definition in alphabetical order for “Environmental justice community”;
ab. Remove the words “special use authorization” infrom the definition of
“Federal authorization” and add, in its place, the words “special use authorizations”;
c. Add a definition in alphabetical order for “Indian Tribe”; and
db. Revise the definitions of “National interest electric transmission corridor”, ;
c. Revise definition of “Permitting entitagency”, and ;
d. Add definition of “Indian Tribe”;
e. Add definition of “Environmental justice community”; and
f. Revise definition of “Stakeholder”.
The revisions and additions and revisions read as follows:
§ 50.1 Definitions.
* * * * *
Environmental justice community means any disadvantaged community that has
been historically marginalized and overburdened by pollution. Environmental justice

Docket No. RM22-7-000

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communities include, but may not be limited to, minority populations, low-income
populations, or indigenous peoples.
* * * * *
Indian Tribe means an Indian Tribe that is recognized by treaty with the United
States, by Ffederal statute, or by the U.S. Department of the Interior in its periodic listing
of Tribal governments in the Federal Register in accordance with 25 CFR 83.6(a), and
whose Tribal interests may be affected by the development and operation of the proposed
transmission facilities.
* * * * *
National interest electric transmission corridor means any geographic area that is
experiencing electric energy transmission capacity constraints or congestion that
adversely affects consumers or is expected to experience such energy transmission
capacity constraints or congestion, as designated by the Secretary of Energy.
Permitting entity means any Federal or State agency, Indian Tribe, or multistate
entity that is responsible for issuing separate authorizations pursuant to Federal law that
are required to construct electric transmission facilities in a national interest electric
transmission corridor.
* * * * *Indian Tribe means an Indian Tribe that is recognized by treaty with the
United States, by federal statute, or by the U.S. Department of the Interior in its periodic
listing of Tribal governments in the Federal Register in accordance with 25 CFR 83.6(a),
and whose Tribal interests may be affected by the development and operation of the
proposed transmission facilities.
Environmental justice community means any disadvantaged community that has been

Docket No. RM22-7-000

- 53 -

historically marginalized and overburdened by pollution. Environmental justice
communities include, but may not be limited to, minority populations, low-income
populations, or indigenous peoples.
Stakeholder means any Federal, State, interstate, or local agency; any Tribal
government; any affected landowner; any environmental justice community member; or
any other interested person or organization.
* * * * *
§ 50.2 [Amended]
3. Amend § 50.2 as follows:
a. Remove the word “tribes” in the third sentence of paragraph (a) and add, in its
place, the word “Tribes”; and
b. Remove the word “which” infrom paragraph (c) and add, in its place, the word
“that”.
4. Amend § 50.3 by revising paragraph (b) to read as follows:
§ 50.3 Applications/pre-filing; rules and format.
* * * * *
(b) Applications, amendments, and all exhibits and other submissions required to
be furnished by an applicant to the Commission under this part must be submitted in
electronic format.
* * * * *
5. Amend § 50.4 byas follows:
a. Revisinge paragraphs (a)(1) through (a)(3);
b. Add ing new paragraph (a)(4); and

Docket No. RM22-7-000

- 54 -

c. Reviseing the first sentence of paragraph (c)(1) introductory text and, revise
paragraphs (c)(1)(ii), and paragraphs (c)(2) through (c)(4).
The revisions and additions read as follows:
§ 50.4 Stakeholder participation.
* * * * *
(a) * * *
(1) Identifies specific tools and actions to facilitate stakeholder communications
and public information, including an up-to-date project website with an interactive
mapping component, and a readily accessible, single point of contact for the applicant;
(2) Lists all central locations in each county throughout the project area where the
applicant will provide copies of all its filings related to the proposed project;
(3) Includes a description and schedule explaining how the applicant intends to
respond to requests for information from the public, permitting entities, and other legal
entities with local authorization requirements; and
(4) Includes an Environmental Justice Public Engagement Plan that addresses all
targeted outreach to identified environmental justice communities. This plan must
summarize comments received from potentially impacted environmental justice
communities during any previous outreach activities and describe planned targeted
outreach activities with such communities during the pre-filing process and after the
filing of an application, including efforts to identify, engage, and accommodate nonEnglish speaking groups or linguistically isolated communities. This plan must also
describe how the applicant will conduct outreach to environmental justice communities
about any potential mitigation.

Docket No. RM22-7-000

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* * * * *
(c) * * *
(1) The applicant must make a good faith effort to notify all: affected landowners;
landowners with a residence within a quarter mile of the edge of the construction rightof-way of the proposed project; municipalities in the project area; permitting entities;
other local, State, Tribal, and Federal governments and agencies involved in the project;
electric utilities and transmission owners and operators that are, or may be, connected to
the proposed transmission facilities; any known individuals or organizations that have
expressed an interest in the State siting proceeding; and any other individuals or
organizations that have expressed to the applicant, or its representatives, an interest in the
proposed project. * * *

* * (i) * * *
(ii) By twice publishing a notice of the pre-filing request and application filings, in
a daily, weekly, and/or Tribal newspaper of general circulation in each county in which
the project is located, no later than 14 days after the date that a docket number is assigned
for the pre-filing process or to the application.
(2) Contents of participation notice.
(i) Any pre-filing request notification sent by mail or published in a newspaper
must, at a minimum, include:
(A) The docket number assigned to the proceeding;
(B) The most recent edition of the Commission’s pamphlet Electric Transmission
Facilities Permit Process. The newspaper notice need only refer to the pamphlet and

Docket No. RM22-7-000

- 56 -

indicate that it is available on the Commission’s website;
(C) A description of the applicant and a description of the proposed project, its
location (including a general location map), its purpose, and the proposed project
schedule;
(D) Contact information for the applicant, including a local or toll-free telephone
number, the name of a specific contact person who is knowledgeable about the project,
and information on how to access the project website;
(E) Information on how to get a copy of the pre-filing information from the
applicant and the location(s) where copies of the pre-filing information may be found as
specified in paragraph (b) of this section;
(F) A copy of the Director’s notification of commencement of the pre-filing
process, the Commission’s Internet address, and contact information for the
Commission’s Office of Public Participation;
(G) Information explaining the pre-filing and application processes and when and
how to intervene in the application proceedings; and
(H) Information explaining that the Commission’s pre-filing and application
processes are separate from any simultaneous stateState siting proceeding(s) and how to
participate in any such Sstate siting proceeding(s).
(ii) In addition to the requirements of paragraph (c)(2)(i) of this section, any prefiling request notification sent by mail to an affected landowner must also include:
(A) A general description of the property the applicant will need from an affected
landowner if the project is approved;

Docket No. RM22-7-000

- 57 -

(B) The most recent edition of the document entitled “Landowner Bill of Rights in
Federal Energy Regulatory Commission Electric Transmission Proceedings,” on its own
page(s) in at least 12-point font, legible, and contained within the first 10 pages of the
notification; and
(C) A brief summary of what specific rights the affected landowner has in
proceedings under the eminent domain rules of the relevant State.
(iii) The application notification must include the Commission’s notice issued
under § 50.9 and restate, or clearly identify the location of, the comment and intervention
instructions provided in the Commission’s notice.
(3) If, for any reason, a person or entity entitled to this notice has not yet been
identified when the notices under this paragraph (c) are sent or published, the applicant
must supply the information required under paragraphs (c)(2)(i) through -(iii) of this
section, as applicable, when the person or entity is identified.
(4) If the notification is returned as undeliverable, the applicant must make a
reasonable attempt to find the correct address and re-send the notice.
* * * * *
6. Amend § 50.5 as followsby:
a. Reviseing the paragraph (c) introductory text, the first sentence of paragraph
(c)(3) introductory text, paragraph (c)(3)(i), and the first sentence of paragraph (c)(5);
b. Adding new paragraphs (c)(8) and (c)(9);
c. Reviseing paragraphs (d)(1)(i) and paragraph (e)(3)(i);
d. Removeing paragraph (e)(3)(ii);
e. Redesignateing paragraph (e)(3)(iii) as (e)(3)(ii);

Docket No. RM22-7-000

- 58 -

f. Reviseing the first sentence of paragraph (e)(4);
g. Redesignateing paragraphs (e)(7) and (e)(8) as paragraphs (e)(9) and (e)(10),
respectively;
h. Adding new paragraphs (e)(7) and (e)(8); and
i. Reviseing the first sentence of newly redesignated paragraph (e)(10).
The revisions and additions read as follows:
§ 50.5 Pre-filing procedures.
* * * * *
(c) Contents of the initial filing. An applicant’s pre-filing request cannot be filed
prior to the initial consultation and must include the following information:
* * * * *
(3) A list of the permitting entities responsible for conducting separate Federal
permitting and environmental reviews and authorizations for the project, including
contact names and telephone numbers, and a list of Tribal, State, and local entities with
authorization requirements. * * *
(i) How the applicant intends to account for each of the relevant entity’s
permitting and environmental review schedules, including its progress in the Department
of Energy’s pre-application process; and
* * * * *
(5) A description of completed work, including contacting stakeholders, agency
and Tribal consultations, project engineering, route planning, environmental and
engineering contractor engagement, environmental surveys/studies, open houses, and any
work completed or actions taken in conjunction with a State proceeding. * * *

Docket No. RM22-7-000

- 59 -

* * * * *
(8) A detailed description of how the proposed project will reduce capacity
constraints and congestion on the transmission system.
(9) A statement indicating whether the applicant intends to comply with the
Applicant Code of Conduct described in § 50.12, and, if not, how the applicant intends to
ensure good faith dealings with affected landowners.
(d) * * *
(1) * * *
(i) The notification will designate the third-party contractor, if applicable, and
* * * * *
(e) * * *
(3) * * *
(i) Provide project notification in compliance with the requirements of § 50.4(c);
and
* * * * *
(4) Within 30 days, submit a mailing list of all notifications made under paragraph
(e)(3) of this section, including the names of the Federal, State, Tribal, and local
jurisdictions’ representatives. * * *
* * * * *
(7) Within 30 days, file supporting information showing how the proposed project
will reduce capacity constraints and congestion on the transmission system, including:
(i) Full report(s) of the System Impact Study for the proposed project;
(ii) For each transmission planning region that would be crossed by the proposed

Docket No. RM22-7-000

- 60 -

project, the most recent Regional Transmission Plan; and
(iii) Expert witness testimony and other relevant information submitted with the
State siting application(s), where applicable.
(8) Within 30 days, file a draft Exhibit H – System analysis data required in §
50.7.
* * * * *
(10) On a monthly basis, file status reports detailing the applicant’s project
activities, including surveys, stakeholder communications, agency and Tribal meetings,
and updates on the status of other required permits or authorizations. * * *
* * * * *
7. Amend § 50.6 as followsby:
a. Reviseing paragraph (b), the second sentence of paragraph (c), and paragraphs
(d), and paragraphs (e)(1), and (e)(3)(i), and (e)(3)(ii);
b. Adding new paragraph (e)(3)(iii); and
c. Revisinge paragraph (i).
The revisions and additions read as follows:
§ 50.6 Applications: general content.
* * * * *
(b) A concise description of applicant’s existing operations, if applicable.
(c) * * * The description must, at a minimum: identify the proposed geographic
location of the principal project features and the planned routing of the transmission line;
contain the general characteristics of the transmission line, including voltage, types of
towers, point of receipt and point of delivery, and the geographic character of the area

Docket No. RM22-7-000

- 61 -

traversed by the line; and be accompanied by an overview map of sufficient scale to show
the entire transmission route on one (or a few) 8.5 by 11-inch sheets.
(d) Verification that the proposed route lies within a national interest electric
transmission corridor designated by the Secretary of the Department of Energy under
section 216 of the Federal Power Act, including the date on which the relevant corridor
was designated.
(e) * * *
(1) A State in which the transmission facilities are to be constructed or modified
does not have the authority to approve the siting of the facilities or consider the interstate
benefits or interregional benefits expected to be achieved by the proposed construction or
modification of transmission facilities in the State;
* * * * *
(3) * * *
(i) Not made a determination on an application seeking approval pursuant to
applicable law;
(ii) Conditioned its approval in such a manner that the proposed construction or
modification will not significantly reduce transmission capacity constraints or congestion
in interstate commerce or is not economically feasible; or
(iii) Denied an application seeking approval pursuant to applicable law.
* * * * *
(i) A full statement as to whether any other application to supplement or effectuate
the applicant’s proposal must be (or is to be) filed by the applicant, any of the applicant’s
customers, or any other person with any other Federal, State, Tribal, or other regulatory

Docket No. RM22-7-000

- 62 -

body; and if so, the nature and status of each such application.
* * * * *
8. Amend § 50.7 byas follows:
a. Reviseing the introductory text and, paragraphs (g)(1)(i) and (vi), paragraphs
(g)(2)(ii) and (vi), paragraph (g)(3)(iii), paragraph (g)(4)(iii), paragraph (g)(5)
introductory text, paragraph (g)(6) introductory text, paragraph (g)(6)(ii), paragraph
(g)(8), paragraph (h)(1), the first sentence of paragraph (h)(2) introductory text, and
paragraph (h)(2)(ii);
b. Removeing paragraphs (h)(3) and (h)(4);
c. Redesignateing paragraphs (h)(5) and (h)(6) as paragraphs (h)(3) and (h)(4),
respectively; and
d. Reviseing newly redesignated paragraphs (h)(3) and (h)(4), and paragraphs
paragraph (i)(2), and and paragraph (j).
The revisions read as follows:
§ 50.7 Applications: exhibits.
Each exhibit must contain a title page showing the applicant’s name, the title of
the exhibit, and the proper letter designation of the exhibit. If an exhibit is 10 or more
pages in length, it must include a table of contents citing (by page, section number, or
subdivision) the component elements or matters contained in the exhibit.
* * * * *
(g) * * *
(1) * * *
(i) Name, point of receipt, and point of delivery of the project;

Docket No. RM22-7-000

- 63 -

* * * * *
(vi) Line design features that minimize audible corona noise during fog/rain
caused by operation of the proposed facilities.
(2) * * *
(ii) Type of structures, including overhead and underground structures;
* * * * *
(vi) A list of the names of all new (and existing, if applicable) substations or
switching stations that will be associated with the proposed transmission line.
(3) * * *
(iii) Width of the right-of-way; and
* * * * *
(4) * * *
(ii ) * * *
(iii) Conductor size, conductor type, and number of conductors per phase.
(5) If the proposed project includes an overhead transmission line, the following
additional information also must be provided:
* * * * *
(6) If an underground or underwater transmission line is proposed, the following
additional information also must be provided:
(i) * * * * *
(ii) Type of cable and a description of any required supporting equipment, such as
pressurizing plants;
* * * * *

Docket No. RM22-7-000

- 64 -

(8) Any other data or information identified as a minimum requirement for the
siting of a transmission line in the State in which the facility will be located.
(h) * * *
(1) An analysis of the existing and expected capacity constraints and congestion
on the electric transmission system.
(2) Steady-state, short-circuit, and dynamic power flow cases, as applicable, used
to analyze the existing transmission system, proposed project, and future transmission
system under anticipated load growth, operating conditions, variations in power import
and export levels, generation additions and retirements, and additional transmission
facilities required for system reliability. * * *
* * * * *
(ii) State the assumptions, criteria, and guidelines upon which the models are
based and take into consideration transmission facility loading, planned and forecasted
forced outage rate for generation and transmission, generation dispatch scenarios, system
protection, and system stability.
(3) A concise analysis of how the proposed project will:
(i) Improve system reliability over the long and short term;
(ii) Impact long-term regional transmission expansion plans;
(iii) Impact congestion on the applicant’s entire system and neighboring systems;
and
(iv) Incorporate any advanced technology design features, if applicable.
(4) Single-line diagrams, including existing system facilities identified by name
and circuit number, that show system transmission elements, in relation to the project and

Docket No. RM22-7-000

- 65 -

other principal interconnected system elements, as well as power flow and loss data that
represent system operating conditions.
(i) * * *
(2) The estimated capital cost and estimated annual operations and maintenance
expense of each proposed mitigation measure.
* * * * *
(j) Exhibit J - Construction, operation, and management. A concise statement
providing arrangements for supervision, management, engineering, accounting, legal, or
other similar services to be rendered in connection with the construction, operation, and
maintenance of the project, if not to be performed by employees of the applicant,
including reference to any existing or contemplated agreements, together with a statement
showing any affiliation between the applicant and any parties to the agreements or
arrangements.
§ 50.8 [Amended]
9. Amend § 50.8 as follows:
a. Remove the word “applicant’s” in the second sentence of paragraph (b) and add,
in its place, the word “applicant”; and
b. Remove the comma directly following the word “rejected” in paragraph (c).
10. Amend § 50.9 by revising paragraph (b) to read as follows:
§ 50.9 Notice of Application
* * * * *

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(b) The notice will establish prompt and binding intermediate milestones and
ultimate deadlines for the review of, and Federal authorization decisions relating to, the
proposed facilities.
§ 50.11 [Amended]
11. Amend § 50.11 as followsby:
a. Reviseing paragraph (a) and the second sentence of paragraph (b);
b. Adding a new sentence at the end of paragraph (d) introductory text and add
paragraphs (d)(1) and (2);
c. Removeing the word “permitee” in the first sentence of paragraph (e) and
adding, in its place, the word “permittee”;
d. Removeing the word “Order” in the first sentence of paragraph (g) introductory
text and adding, in its place, the word “order”; and
e. Removeing the word “Orders” in paragraph (g)(2) and adding, in its place, the
word “orders”.
The revisions and addition read as follows:
§ 50.11 General conditions applicable to permits.
(a) The following terms and conditions, along with others that the Commission
finds are required by the public interest, will attach to the issuance of each permit and to
the exercise of the rights granted under the permit.
(b) * * * Provided that, when an applicant files for rehearing of the order in
accordance with FPA section 313(a), the acceptance must be filed within 30 days after
final disposition of the request for rehearing. * * *
* * * * *

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(d) * * * Provided that, no authorization to proceed with construction activities
will be issued:
(1) Until the time for the filing of a request for rehearing under 16 U.S.C.
§ 825l(a) has expired with no such request being filed, or
(2) If a timely request for rehearing raising issues reflecting opposition to project
construction, operation, or need is filed, until:
(i) The request is no longer pending before the Commission;
(ii) The record of the proceeding is filed with the court of appeals; or
(iii) 90 days has passed after the date that the request for rehearing may be deemed
to have been denied under 16 U.S.C. § 825l(a).
* * * * *
12. Add new § 50.12 to read as follows:
§ 50.12 Applicant code of conduct for landowner engagement.
Under section 216(e)(1) of the Federal Power Act, any applicant that may, upon
receipt of a permit, seek to acquire the necessary right-of-way by the exercise of the right
of eminent domain must demonstrate to the Commission that it has made good faith
efforts to engage with landowners and other stakeholders early in the applicable
permitting process. An applicant’s commitment to and compliance with the Applicant
Code of Conduct in its communications with affected landowners during the permitting
process is one way to demonstrate to the Commission that such good faith efforts have
been made.
(a) Applicant code of conduct. To promote good faith engagement with affected
landowners, applicants committing to comply with the Applicant Code of Conduct must:

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(1) For the duration of the pre-filing and application review process, develop and
retain a log of discussions with affected landowners, organized by name and property
address, that includes:
(i) The name of the affected landowner;
(ii) The substance of the items discussed;
(iii) The nature of the contact (such as in-person, virtual meeting, telephone,
electronic mail);
(iv) The date of the contact; and
(v) The status of discussions with the affected landowner following the contact,
including any permissions granted, negotiations, or future meetings scheduled.
(2) In addition to the pre-filing request notification required by § 50.4(c)(1)(i) and
-(ii), provide to each affected landowner, prior to, during, or immediately after the first
contact, a document that, at a minimum, includes: a description of the project, a
description of the Commission and its role, a map of the project route, and the
Landowner Bill of Rights in the form described in § 50.4(c)(2)(ii)(B). If the first contact
with the affected landowner is in-person, the applicant must offer to provide the affected
landowner at least one paper copy of the document. If the first contact with the affected
landowner is by telephone, text, or electronic mail, the applicant may provide the affected
landowner with a copy of the document by electronic means or by first class mail, at the
affected landowner’s preference. The applicant must review the provisions of the
document with the affected landowner upon request.
(3) Ensure that any representative acting on the applicant’s behalf states their full
name, title, and employer, as well as the name of the applicant that they represent, at the

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beginning of any discussion with an affected landowner, and provides the
representative’s contact information, including mailing address, telephone number, and
electronic mail address, prior to the end of the discussion.
(4) Ensure that all communications with affected landowners are factually correct.
The applicant must correct any statements made by it or any representative acting on its
behalf that it becomes aware were:
(i) Iinaccurate when made; or
(ii) hHave been rendered inaccurate based on subsequent events, within three
business days of discovery of any such inaccuracy.
(5) Ensure that communications with affected landowners do not misrepresent the
status of the discussions or negotiations between the parties.
(6) Provide affected landowners with updated contact information whenever an
applicant’s contact information changes.
(7) Communicate respectfully with affected landowners and avoid harassing,
coercive, manipulative, or intimidating communications or high-pressure tactics.
(8) Except as otherwise provided by State or local law, abide by an affected
landowner’s request to end the communication or for the applicant or its representative to
leave the affected landowner’s property.
(9) Except as otherwise provided by State or local law, obtain an affected
landowner’s permission prior to entering the property, including for survey or
environmental assessment, and leave the property without argument or delay if the
affected landowner revokes permission.

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(10) Refrain from discussing an affected landowner’s communications or
negotiations status with any other affected landowner.
(11) Provide the affected landowner with a copy of any appraisal that has been
prepared by, or on behalf of, the applicant for that affected landowner’s property, if any,
before discussing the value of the property in question.
(12) Ensure that any representative acting on the applicant’s behalf complies with
all provisions of the Applicant Code of Conduct described in this paragraph (a).
(b) Compliance with Applicant Code of Conduct. Applicants committing to
comply with the Applicant Code of Conduct must:
(1) File, as part of the pre-filing request required by § 50.5(c), an affirmative
statement that the applicant intends to comply with the Applicant Code of Conduct.
(2) Include, as part of the monthly status reports required by § 50.5(e)(10):
(i) An affirmation that the applicant and its representatives have, to the best of
their knowledge, complied with the Applicant Code of Conduct during the month in
question; or
(ii) A detailed explanation of any instances of non-compliance with the Applicant
Code of Conduct during the month in question and any remedial actions taken or
planned.
(3) Identify, in a filing with the Commission or as part of the monthly status
reports required by § 50.5(e)(10), any known instances of non-compliance that were not
disclosed in prior monthly status reports and explain any remedial actions taken in the
current month to address instances of non-compliance occurring in prior months.

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(c) Compliance with an alternative method. Applicants not committing to comply
with the Applicant Code of Conduct must:
(1) File, as part of the pre-filing request required by § 50.5(c):
(i) Aan affirmative statement that the applicant intends to rely on an alternative
method of demonstrating that it meets the good faith efforts standard;
(ii) Aa detailed explanation of the alternative method of demonstrating that it
meets the good faith efforts standard, including any commitments to record-keeping,
information-sharing, or other conduct;
(iii) Aan explanation of how the alternative method is equal to or superior to
compliance with the Applicant Code of Conduct as a means to ensure the good faith
efforts standard is met;
(iv) Aan explanation, for each component of the Applicant Code of Conduct with
which it does not comply, why it did not follow that component; and
(v) Aan explanation, for each component of the Applicant Code of Conduct with
which it does not comply, why the alternative method is an equal or better means to
ensure the good faith standard is met notwithstanding that deviation from the Applicant
Code of Conduct.

PART 380 – REGULATIONS IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
13. The authority citation for part 380 continues to read as follows:
Authority: 42 U.S.C. 4321-4370h, 7101-7352; E.O. 12009, 3 CFR 1978
Comp., p. 142.

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14. Amend § 380.2 by redesignating paragraphs (f) and (g) as paragraphs (g) and
(h) and adding new new paragraph (fh).
The addition to reads as follows:
§ 380.2 Definitions and terminology.
* * * * *
(fh) Environmental justice community means any disadvantaged community that
has been historically marginalized and overburdened by pollution. Environmental justice
communities include, but may not be limited to, minority populations, low-income
populations, or indigenous peoples.
* * * * *
§ 380.13 [Amended]
15. Amend § 380.13 in paragraph (b)(2)(i) by adding the words “or § 380.16, as
applicable” directly after the reference to “§ 380.12”.
§ 380.14 [Amended]
16. Amend § 380.14 in paragraph (a) introductory text byas follows:
a. Removinge the parenthetical reference to “16 U.S.C. 470(f)” in the first
sentence and adding, in its place, a parenthetical reference to “54 U.S.C. 306108”; and
b. Adding the words “or § 380.16(f), as applicable” directly after the reference to
“380.12(f)”.
§ 380.16 [Amended]
17. Amend § 380.16 byas follows:

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a. Revisinge the second sentence of paragraph (a)(1), revise paragraph (b)(3),
revise the second first sentence of paragraph (c) introductory text, and the first sentence
of paragraph (c)(1), and revise paragraphs (c)(2)(i) through (iii) and, (c)(3), and (c)(4);
b. Reviseing the second sentence of paragraph (d)(6) and the second sentence of
paragraph (d)(7);
c. Revisinge paragraph (e)(3), the first two sentences of paragraph (e)(4), the first
and third sentences of paragraph (e)(5), and paragraphs (e)(6) through (e)(8);
d. Reviseing paragraphs (f)(1)(i), (iii), (iv), and (v);, paragraph (f)(2) introductory
text;, and the first sentence of paragraph (f)(4);
e. Reviseing the first sentence of paragraph (g) introductory text and paragraphs
(g)(3) and (g)(6);
f. Redesignateing paragraphs (k) through (m) as paragraphs (n) through (p),
respectively;

g. Redesignatinge paragraphs (h) through (j) as paragraphs (j) through (l),
respectively;
h. Adding new paragraphs (h) and (i);
i. In redesignated paragraph (j), rRevisinge the heading and the second sentence of
newly redesignated paragraph (j) introductory text and revise newly redesignated
paragraph (j)(3);
j. RIn redesignated paragraph (k), revisinge the newly redesignated paragraphs (k)
heading and paragraphs (k) introductory text and (k)(2) and (3);

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k. Add paragraph through (k)(4) heading and introductory text and paragraphs
(k)(2) and (3);
k. Adding new paragraph (k)(4);
lkl. In redesignated paragraph (l), revising the heading and introductory text, the
paragraph (l)(1) introductory text, paragraphs (l)(1)(i) through (iii), (l)(2), (l)(3), and the
first sentence of (l)(4); deleting paragraph (l)(5); redesignating paragraphs (l)(6) through
(l)(12) as paragraphs (l)(5) through (l)(11), respectively; revising the redesignated
paragraph (l)(5) introductory text; adding a new sentence at the end of redesignated
paragraph (l)(5)(i); and revising redesignated paragraphs (l)(5)(ii), the heading and the
first and final sentences of redesignated paragraph (l)(5)(iii), and redesignated paragraphs
(l)(6) and (l)(9) through (11)Revise newly redesignated paragraph (l);
m. Adding new paragraph (m);
n. RIn redesignated paragraph (n), revisinge the newly the redesignated paragraph
(n) the heading and introductory text, the second sentence of newly redesignated
paragraph newly redesignated (n)(2)(i), and the second sentence of newly redesignated
paragraph (n)(2)(ii);
o. RIn redesignated paragraph (o), revisinge the newly redesignated paragraph (o)
heading and introductory text, newly redesignated paragraphs (o)(1) through (4), the first
sentence of newly redesignated paragraph (o)(5), and newly redesignated paragraph
(o)(7); and
p. RIn redesignated paragraph (p), reviseing the newly redesignated paragraph
(p)the heading, and the second sentence of newly redesignated paragraph (p) introductory

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text, the third sentence of newly redesignated paragraph (p)(2), and newly redesignated
paragraphs (p)(3)(i) and, (3)(iii), and (p)(4).
The revisions and additions read as follows:

§ 380.16 Environmental reports for Section 216 Federal Power Act Permits.
(a) * * *
(1) * * * The environmental report must include the 134 resource reports and
related material described in this section.
* * * * *
(b) * * *
(3) Identify the effects of construction, operation (including malfunctions), and
maintenance, as well as cumulative effects resulting from the incremental effects of the
project when added to the effects of other past, present, and reasonably foreseeable
actions;
* * * * *
(c) * * * This report must describe facilities associated with the project; special
construction, operation, and maintenance procedures; construction timetables; future
plans for related construction; compliance with regulations and codes; and permits that
must be obtained. * * *
(1) Describe and provide location maps of all project facilities (such as
transmission line towers, substations, and any appurtenant facilities) to be constructed,
modified, replaced, or removed, and related construction and operational support
activities and areas, such as maintenance bases, staging areas, communications towers,

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power lines, and new access roads (roads to be built or modified). * * *
(2) * * *
(i) Current, original United States Geological Survey (USGS) 7.5–minute series
topographic maps, or maps of equivalent detail, covering at least a 0.5–mile-wide
corridor centered on the electric transmission facility centerline, with integer mileposts
identified, showing the location of rights-of-way, new access roads, other linear
construction areas, substations, and construction materials storage areas. Nonlinear
construction areas must be shown on maps at a scale of 1:3,600, or larger, keyed
graphically and by milepost to the right-of-way maps. The topographic maps must depict
the facilities identified under paragraph (lj)(65) of this section, including any facilities
located outside of the 0.5-mile-wide corridor.
(ii) Original aerial images or photographs or photo-based alignment sheets based
on these sources, not more than one year old (unless older ones accurately depict current
land use and development) and with a scale of 1:6,000, or larger, showing the proposed
transmission line route and location of transmission line towers, substations and
appurtenant facilities, covering at least a 0.5-mile-wide corridor, and including mileposts.
The aerial images or photographs or photo-based alignment sheets must show all existing
transmission facilities located in the area of the proposed facilities and the facilities
identified under paragraph (lj)(56) of this section, including any facilities located outside
of the 0.5-mile-wide corridor. Older images/photographs/alignment sheets must be
modified to show any facilities not depicted in the original. Alternative formats (e.g.,
blue-line prints of acceptable resolution) need prior approval by the environmental staff
of the Commission’s Office of Energy Projects.

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(iii) In addition to the requirements under § 50.3(b) of this chapter, the applicant
must contact the environmental staff of the Office of Energy Projects regarding the need
for any additional copies of topographic maps and aerial images/photographs.
(3) Describe and identify, by milepost, proposed general construction and
restoration methods, and any special methods to be used in areas of rugged topography,
residential areas, active croplands, and sites where explosives are likely to be used.
Describe any proposed horizontal directional drilling and pile driving that may be
necessary.
(4) Identify the number of construction spreads, average workforce requirements
for each construction spread and estimated duration of construction from initial clearing
to final restoration. Indicate the days of the week and times of the day that proposed
construction activities would occur and describe any proposed nighttime construction
activities.
* * * * *
(d) * * *
(6) Discuss proposed mitigation measures to reduce the potential for adverse
impacts to surface water, wetlands, or groundwater quality. * * * Discuss the potential
for blasting or contamination/spills to affect water wells, springs, and wetlands, and
measures to be taken to detect and remedy such effects. Describe the impact of proposed
land clearing and vegetation management practices, including herbicide treatment, in the
project area on water resources.
(7) * * * Identify locations of Environmental Protection Agency or Statedesignated, sole-source aquifers and wellhead protection areas crossed by the proposed

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transmission line facilities.
(e) * * *
(3) Describe and provide the acreage of vegetation cover types that would be
affected, including unique ecosystems or communities, such as remnant prairie, interior
forest, or old-growth forest, or significant individual plants, such as old-growth specimen
trees.
(4) Describe the impact of construction, operation, and maintenance on aquatic
and terrestrial species and their habitats, including the possibility of a major alteration to
ecosystems or biodiversity, and any potential impact on State-listed endangered or
threatened species. Describe the impact of proposed land clearing and vegetation
management practices, including herbicide treatment, in the project area on fish, wildlife,
and vegetation. * * *
(5) Identify all Federallyfederally listed or proposed threatened or endangered
species and critical habitat that potentially occur in the vicinity of the project. * * *
The application must include the results of any required surveys unless seasonal
considerations make this impractical. * * *
(6) Identify all fFederally listed essential fish habitat (EFH) that potentially occurs
in the vicinity of the project. Provide information on all EFH, as identified by the
pertinent Federal fishery management plans, that may be adversely affected by the
project and the results of abbreviated consultations with the National Marine Fisheries
Service, and any resulting EFH assessments.
(7) Describe proposed, site-specific mitigation measures to minimize impacts on
fisheries, wildlife, and vegetation.

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(8) Include copies of correspondence not provided under paragraph (e)(5) of this
section, containing recommendations from appropriate Federal and State fish and wildlife
agencies to avoid or limit impacts on wildlife, fisheries, and vegetation, and the
applicant’s response to the recommendations.
(f) * * *
(1) * * *
(i) Documentation of the applicant’s initial cultural resource consultations,
including consultations with Native Americans and other interested persons (if
appropriate);
* * * * *
(iii) An Evaluation Report, as appropriate;
(iv) A Treatment Plan, as appropriate; and
(v) Written comments from State Historic Preservation Officer(s) (SHPO), Tribal
Historic Preservation Officers (THPO), as appropriate, and applicable land-management
agencies on the reports in paragraphs (f)(1)(i) through (iv) of this section.
(2) The application or pre-filing documents, as applicable, must include the
documentation of initial cultural resource consultation(s), the Overview and Survey
Reports, if required, and written comments from SHPOs, THPOs, and land-management
agencies, if available. The initial cultural resource consultations should establish the need
for surveys. If surveys are deemed necessary by the consultation with the SHPO/THPO,
the survey reports must be filed with the application or pre-filing documents.
* * * * *
(4) The applicant must request privileged treatment for all material filed with the

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Commission containing location, character, and ownership information about cultural
resources in accordance with § 388.112 of this chapter. * * *
* * * * *
(g) * * * This report must identify and quantify the impacts of project
construction, operation, and maintenance on factors affecting municipalities and counties
in the vicinity of the project. * * *
* * * * *
(3) Describe on-site manpower requirements and payroll during construction,
operation, and maintenance, including the number of construction personnel who
currently reside within the impact area, will commute daily to the site from outside the
impact area, or will relocate temporarily within the impact area.
* * * * *
(6) Conduct a fiscal impact analysis evaluating incremental local government
expenditures in relation to incremental local government revenues that will result from
the project. Incremental expenditures include, but are not limited to, school operation,
road maintenance and repair, public safety, and public utilities.
(h) Resource Report 6—Tribal resources. This report must describe Indian Tribes,
Tribal lands, and Tribal interests that may be affected by the proposed project. Resource
Report 6 must:
(1) Identify Indian Tribes that may be affected by the construction, operation, and
maintenance of the proposed transmission facilities.
(2) Describe the impacts of construction, operation, and maintenance of the project
on Indian Tribes and Tribal interests, including those related to: water use and quality;

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wildlife and vegetation; cultural and historic resources; socioeconomics; geological
resources; soils; land use, recreation, and aesthetics; air quality and environmental noise;
traffic; and health.
(3) Identify project impacts that may affect Tribal interests not necessarily
associated with resources specified in paragraph (h)(2) of this section, e.g., treaties,
Tribal practices, or agreements between the Indian Tribe and entities other than the
applicant.
(4) Identify Indian Tribes that may attach religious and cultural significance to
historic properties within the proposed project right-of-way or in the project vicinity, as
well as available information on Indian traditional cultural and religious properties,
whether on or off of any Indian reservation.
(5) Ensure that information made available under this section not include specific
site or property locations, the disclosure of which will create a risk of harm, theft, or
destruction of archaeological or Tribal cultural resources or to the site at which the
resources are located, or which would violate any Federal law, including the
Archaeological Resources Protection Act of 1979, 16 U.S.C. 470hh, and the National
Historic Preservation Act of 1966, 54 U.S.C. 307103.
(i) Resource Report 7—Environmental justice. This report must address the effects
of the proposed project on environmental justice communities, as defined in § 380.2 of
this chapter. Resource Report 7 must:
(1) Identify environmental justice communities within the area of potential project
impacts using current guidance and data, including localized data, from the
Environmental Protection Agency, the Council, the Census Bureau, and other

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authoritative sources. Provide maps depicting identified environmental justice
communities in relation to the proposed project facilities using granular data.
(2) Describe the impacts of construction, operation, and maintenance of the project
on environmental justice communities, including those related to: water use and quality;
wildlife and vegetation; cultural and historic resources; socioeconomics; geological
resources; soils; land use, recreation, and aesthetics; air quality and environmental noise;
traffic; and health. Identify any disproportionately high and adverse impacts on
environmental justice communities.
(3) Discuss any cumulative impacts on environmental justice communities,
regarding resources affected by the project, including whether any cumulative impacts
would be disproportionately high and adverse. Describe the proposed project’s impacts in
relation to the aggregation of past, present, and reasonably foreseeable actions taken by
Federal or non-Federal entities, and the environmental justice communities’ capacity to
tolerate additional impacts.
(4) Describe any proposed mitigation measures to avoid or minimize impacts on
environmental justice communities, including any community input received on the
proposed measures and how the input informed the proposed measures.
(j) Resource Report 8—Geological resources. * * * Resource Report 8 must:
* * * * *
(3) Describe how the project will be located or designed to avoid or minimize
adverse effects to geological resources or risk to itself. Describe any geotechnical
investigations and monitoring that would be conducted before, during, and after
construction. Discuss the potential for blasting to affect structures and the proposed

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measures to be taken to remedy such effects.
* * * * *
(k) Resource Report 9—Soils. This report must describe the soils that will be
affected by the proposed project, the effect on those soils, and measures proposed to
minimize or avoid impacts. Resource Report 9 must:
* * * * *
(2) Identify, by milepost, potential impacts from: soil erosion due to water, wind,
or loss of vegetation; soil compaction and damage to soil structure resulting from
movement of construction vehicles; wet soils and soils with poor drainage that are
especially prone to structural damage; damage to drainage tile systems due to movement
of construction vehicles and trenching activities; and interference with the operation of
agricultural equipment due to the possibility of large stones or blasted rock occurring on
or near the surface as a result of construction.
(3) Identify, by milepost, cropland and residential areas where project construction
may result in the loss of soil fertility, including any land classified as prime or unique
farmland by the U.S. Department of Agriculture, Natural Resources Conservation
Service.
(4) Describe any proposed mitigation measures to reduce the potential for adverse
impacts to soils or agricultural productivity.
(l) Resource Report 10—Land use, recreation, and aesthetics. This report must
describe the existing uses of land in the project vicinity and changes to those land uses
that will occur if the project is approved. The report must discuss proposed mitigation
measures, including the protection and enhancement of existing land use. Resource

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Report 10 must:
(1) Describe the width and acreage requirements of all construction and permanent
rights-of-way for project construction, operation and maintenance.
(i) List, by milepost, locations where the proposed construction or permanent
rights-of-way would be adjacent to existing rights-of-way of any kind.
(ii) Identify, preferably by diagrams, existing rights-of-way that will be used for a
portion of the construction or permanent rights-of-way, the overlap and how much
additional width will be required.
(iii) Identify the total amount of land to be purchased or leased for each project
facility; the amount of land that would be disturbed for construction, operation, and
maintenance of the facility; and the proposed use of the remaining land not required for
project operation and maintenance, if any.
(iv) Identify the size of typical staging areas and expanded work areas, such as
those at railroad, road, and waterbody crossings, and the size and location of all
construction materials storage yards and access roads.
(2) Identify, by milepost, the existing use of lands crossed by, or adjacent to, the
proposed project facilities or rights-of-way.
(3) Describe planned development on land crossed by, or within 0.25 mile of, the
proposed facilities, the time frame (if available) for such development, and proposed
coordination to minimize impacts on land use. Planned development means development
that is included in a master plan or is on file with the local planning board or the county.
(4) Identify, by milepost and length of crossing, the area of direct effect of each
proposed facility and operational site on sugar maple stands; orchards and nurseries;

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landfills; operating mines; hazardous waste sites; State wild and scenic rivers; State or
local designated trails; nature preserves; game management areas; remnant prairie; oldgrowth forest; interior forest; national or State forests or parks; golf courses; designated
natural, recreational or scenic areas; registered natural landmarks; Native American
religious sites and traditional cultural properties (to the extent they are known to the
public at large) and reservations; lands identified under the Special Area Management
Plan of the Office of Coastal Zone Management, National Oceanic and Atmospheric
Administration; and lands owned or controlled by Federal or State agencies or private
preservation groups. Also identify if any of those areas are located within 0.25 mile of
any proposed facility.
(5) Identify and describe buildings, electronic installations, airstrips, airports, and
heliports in the project vicinity. The facilities identified under this paragraph (l)(5) must
be depicted on the maps and photographs in Resource Report 1, as required by paragraph
(c)(2) of this section.
(i) Buildings: List all single-family and multi-family dwellings and related
structures, mobile homes, apartment buildings, commercial structures, industrial
structures, business structures, churches, hospitals, nursing homes, schools, or other
structures normally inhabited by humans or intended to be inhabited by humans on a
daily or regular basis within a 0.5–mile-wide corridor centered on the proposed
transmission line alignment. Provide a general description of each habitable structure and
its distance from the centerline of the proposed project. In cities, towns, or rural
subdivisions, houses can be identified in groups. Provide the number of habitable
structures in each group and list the distance from the centerline to the closest habitable

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structure in the group. Provide a list of all habitable structures within 200 feet of a
proposed construction work area for all proposed project facilities, including transmission
line towers, substations, access roads, and appurtenant facilities; a general description of
each habitable structure; and the distance of each habitable structure from the proposed
construction work area.
(ii) Electronic installations: List all commercial AM radio transmitters located
within 10,000 feet of the centerline of the proposed project and all FM radio transmitters,
microwave relay stations, or other similar electronic installations located within 2,000
feet of the centerline of the proposed project. Provide a general description of each
installation and its distance from the centerline of the proposed project.
(iii) Airstrips, Airports, and Heliports: List all known private airstrips within
10,000 feet of the centerline of the project. List all airports registered with the Federal
Aviation Administration (FAA), with at least one runway more than 3,200 feet in length,
that are located within 20,000 feet of the centerline of the proposed project. Indicate
whether any transmission structures will exceed a 100:1 horizontal slope (one foot in
height for each 100 feet in distance) from the closest point of the closest runway. List all
airports registered with the FAA having no runway more than 3,200 feet in length that are
located within 10,000 feet of the centerline of the proposed project. Indicate whether any
transmission structures will exceed a 50:1 horizontal slope from the closest point of the
closest runway. List all heliports located within 5,000 feet of the centerline of the
proposed project. Indicate whether any transmission structures will exceed a 25:1
horizontal slope from the closest point of the closest landing and takeoff area of the
heliport. Provide a general description of each private airstrip, registered airport, and

Docket No. RM22-7-000

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registered heliport, and state the distance of each from the centerline of the proposed
transmission line. Include copies of any consultation with the FAA.
(6) Describe any areas crossed by, or within 0.25 mile of, the proposed
transmission project facilities that are included in, or are designated for study for
inclusion in: the National Wild and Scenic Rivers System (16 U.S.C. 1271), the National
Trails System (16 U.S.C. 1241), or a wilderness area designated under the Wilderness
Act (16 U.S.C. 1132).
(7) For facilities within a designated coastal zone management area, provide a
consistency determination or evidence that the applicant has requested a consistency
determination from the State’s coastal zone management program.
(8) Describe the impact the project will have on present uses of the affected areas
as identified above, including commercial uses, mineral resources, recreational areas,
public health and safety, and the aesthetic value of the land and its features. Describe any
temporary or permanent restrictions on land use resulting from the project.
(9) Describe proposed mitigation measures intended for all special use areas
identified under this section.
(10) Identify the area of potential visual effects from the proposed project.
Describe the visual characteristics of the lands and waters affected by the project,
including any visually sensitive areas, visual classifications, and key viewpoints in the
project vicinity. Describe how the transmission line project facilities will impact the
visual character and scenic quality of the landscape and proposed mitigation measures to
lessen these impacts. Provide visual aids to support the textual descriptions required by
this paragraph.

Docket No. RM22-7-000

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(11) Demonstrate that applications for rights-of-way authorizations or other
proposed land uses have been, or soon will be, filed with Federal land-management
agencies with jurisdiction over land that would be affected by the project.(l) Resource
Report 10—Land use, recreation, and aesthetics. This report must describe the existing
uses of land in the project vicinity and changes to those land uses that will occur if the
project is approved. The report must discuss proposed mitigation measures, including the
protection and enhancement of existing land use. Resource Report 10 must:
(1) Describe the width and acreage requirements of all construction and permanent
rights-of-way for project construction, operation and maintenance.
(i) List, by milepost, locations where the proposed construction or permanent
rights-of-way would be adjacent to existing rights-of-way of any kind.
(ii) Identify, preferably by diagrams, existing rights-of-way that will be used for a
portion of the construction or permanent rights-of-way, the overlap and how much
additional width will be required.
(iii) Identify the total amount of land to be purchased or leased for each project
facility; the amount of land that would be disturbed for construction, operation, and
maintenance of the facility; and the proposed use of the remaining land not required for
project operation and maintenance, if any.
* * * * *
(2) Identify, by milepost, the existing use of lands crossed by, or adjacent to, the
proposed project facilities or rights-of-way.
(3) Describe planned development on land crossed by, or within 0.25 mile of, the
proposed facilities, the time frame (if available) for such development, and proposed

Docket No. RM22-7-000

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coordination to minimize impacts on land use. Planned development means development
that is included in a master plan or is on file with the local planning board or the county.
(4) Identify, by milepost and length of crossing, the area of direct effect of each
proposed facility and operational site on sugar maple stands; orchards and nurseries;
landfills; operating mines; hazardous waste sites; State wild and scenic rivers; State or
local designated trails; nature preserves; game management areas; remnant prairie; oldgrowth forest; interior forest; national or State forests or parks; golf courses; designated
natural, recreational or scenic areas; registered natural landmarks; Native American
religious sites and traditional cultural properties (to the extent they are known to the
public at large) and reservations; lands identified under the Special Area Management
Plan of the Office of Coastal Zone Management, National Oceanic and Atmospheric
Administration; and lands owned or controlled by Federal or State agencies or private
preservation groups. * * *
(5) Identify and describe buildings, electronic installations, airstrips, airports, and
heliports in the project vicinity. The facilities identified under this paragraph (k)(6) must
be depicted on the maps and photographs in Resource Report 1, as required by paragraph
(c)(2) of this section.
(i) * * * Provide a list of all habitable structures within 200 feet of a proposed
construction work area for all proposed project facilities, including transmission line
towers, substations, access roads, and appurtenant facilities; a general description of each
habitable structure; and the distance of each habitable structure from the proposed
construction work area.

Docket No. RM22-7-000

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(ii) Electronic installations: List all commercial AM radio transmitters located
within 10,000 feet of the centerline of the proposed project and all FM radio transmitters,
microwave relay stations, or other similar electronic installations located within 2,000
feet of the centerline of the proposed project. Provide a general description of each
installation and its distance from the centerline of the proposed project.
(iii) Airstrips, Airports, and Heliports: List all known private airstrips within
10,000 feet of the centerline of the project. List all airports registered with the Federal
Aviation Administration (FAA), with at least one runway more than 3,200 feet in length,
that are located within 20,000 feet of the centerline of the proposed project. * * *
Include copies of any consultation with the FAA.
(6) Describe any areas crossed by, or within 0.25 mile of, the proposed
transmission project facilities that are included in, or are designated for study for
inclusion in: the National Wild and Scenic Rivers System (16 U.S.C. 1271), the National
Trails System (16 U.S.C. 1241), or a wilderness area designated under the Wilderness
Act (16 U.S.C. 1132).
* * * * *
(9) Describe proposed mitigation measures intended for all special use areas
identified under this section.
(10) Identify the area of potential visual effects from the proposed project.
Describe the visual characteristics of the lands and waters affected by the project,
including any visually sensitive areas, visual classifications, and key viewpoints in the
project vicinity. Describe how the transmission line project facilities will impact the
visual character and scenic quality of the landscape and proposed mitigation measures

Docket No. RM22-7-000

- 91 -

proposed to lessen these impacts. Provide visual aids to support the textual descriptions
required by this paragraph.
(11) Demonstrate that applications for rights-of-way authorizations or other
proposed land uses have been, or soon will be, filed with Federal land-management
agencies with jurisdiction over land that would be affected by the project.
(m) Resource Report 11—Air quality and environmental noise. This report must
estimate emissions from the proposed project and the corresponding impacts on air
quality and the environment, estimate the impact of the proposed project on the noise
environment, and describe proposed measures to mitigate the impacts. Resource Report
11 must:
(1) Describe the existing air quality in the project area, indicate if any project
facilities are located within a designated nonattainment or maintenance area under the
Clean Air Act (42 U.S.C. 7401 et seq.), and provide the distance from the project
facilities to any Class I area in the project vicinity.
(2) For proposed substations and appurtenant facilities, quantitatively describe
existing noise levels at nearby noise-sensitive areas, such as schools, hospitals, or
residences.
(i) Report existing noise levels as the Leq (day), Leq (night), and Ldn and include
the basis for the data or estimates.
(ii) Include a plot plan that identifies the locations and duration of noise
measurements, time of day, weather conditions, wind speed and direction, engine load,
and other noise sources present during each measurement.
(iii) Identify any State or local noise regulations that may be applicable to the

Docket No. RM22-7-000

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project facilities.
(3) Estimate emissions from the proposed project and the corresponding impacts
on air quality and the environment.
(i) Estimate the reasonably foreseeable emissions from construction, operation,
and maintenance of the project facilities (such as emissions from tailpipes, equipment,
fugitive dust, open burning, and substations) expressed in tons per year. Include
supporting calculations, emissions factors, fuel consumption rates, and annual hours of
operation.
(ii) For each designated nonattainment or maintenance area, provide a comparison
of the emissions from construction, operation, and maintenance of the project facilities
with the applicable General Conformity thresholds (40 CFR part 93).
(iii) Identify the corresponding impacts on communities and the environment in
the project area from the estimated emissions.
(iv) Describe any proposed mitigation measures to control emissions identified
under this section.
(4) Estimate the impact of the proposed project on the noise environment.
(i) Provide a quantitative estimate of the impact of transmission line operation on
noise levels at the edge of the proposed right-of-way, including corona, insulator, and
Aeolian noise. For proposed substations and appurtenant facilities, provide a quantitative
estimate of the impact of operations on noise levels at nearby noise-sensitive areas,
including discrete tones.
(A) Include step-by-step supporting calculations or identify the computer program
used to model the noise levels, input and raw output data and all assumptions made when

Docket No. RM22-7-000

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running the model, far-field sound level data for maximum facility operation, and source
of the data.
(B) Include sound pressure levels for project facilities, dynamic insertion loss for
structures, and sound attenuation from the project facilities to the edge of the right-ofway or to nearby noise-sensitive areas (as applicable).
(C) Far-field sound level data measured from similar project facilities in service
elsewhere, when available, may be substituted for manufacturer's far-field sound level
data.
(D) The operational noise estimates must demonstrate that 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.
(ii) Describe the impact of proposed construction activities, including any
nighttime construction, on the noise environment. Estimate the impact of any horizontal
directional drilling, pile driving, or blasting on noise levels at nearby noise-sensitive areas
and include supporting assumptions and calculations.
(iii) Describe any proposed mitigation measures to reduce noise impacts identified
under this section.
(n) Resource Report 12—Alternatives. This report must describe alternatives to the
project and compare the environmental impacts (as identified in Resource Reports 1
through 11 of this section) of such alternatives to those of the proposal. * * * Resource
Report 12 must:
* * * * *

Docket No. RM22-7-000

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(2) * * *
(i) * * * Where applicable, identify the location of such alternatives on maps of
sufficient scale to depict their relationship to the proposed action and existing rights-ofway; and
(ii) * * * Provide comparative tables showing the differences in environmental
characteristics for the alternatives and proposed action. * * *
(o) Resource Report 13—Reliability and safety. This report must address the
potential hazards to the public from failure of facility components resulting from, among
other things, accidents or natural catastrophes; how these events would affect reliability;
and proposed procedures and design features to reduce potential hazards. Resource
Report 13 must:
(1) Discuss hazards, environmental impacts, and service interruptions that could
reasonably ensue from failure of the proposed facilities.
(2) Describe proposed measures to protect the public from failure of the proposed
facilities (including coordination with local agencies).
(3) Discuss proposed design and operational measures to avoid or reduce risk,
including any measures to ensure that the proposed project facilities would be resilient
against future climate change impacts in the project area.
(4) Discuss proposed contingency plans for maintaining service or reducing
downtime to ensure that the proposed facilities would not adversely affect the bulk
electric system in accordance with applicable North American Electric Reliability
Corporation reliability standards.
(5) Describe proposed measures to exclude the public from hazardous areas. * *

Docket No. RM22-7-000

- 95 -

*
* * * * *
(7) Discuss the potential for electrical noise from electric and magnetic fields,
including shadowing and reradiation, as they may affect health or communication
systems along the transmission right-of-way.
* * * * *
(p) Resource Report 14—Design and engineering. * * * If the version of this
report submitted with the application is preliminary in nature, the applicant must state
that in the application. * * *
* * * * *
(2) * * * If a permit is granted on the basis of preliminary designs, the applicant
must submit final design drawings for written approval by the Director of the Office of
Energy Projects prior to commencement of any construction of the project.
(3) * * *
(i) An assessment of the suitability of the locations of proposed transmission line
towers, substations, and appurtenant structures based on geological and subsurface
investigations, including investigations of soils and rock borings and tests evaluating all
foundations and construction materials;
* * * * *
(iii) An identification of all borrow areas and quarry sites and an estimate of
required quantities of suitable construction material; and
* * * * *
(4) The applicant must submit the supporting design report described in paragraph

Docket No. RM22-7-000

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(p)(3) of this section at the time preliminary and final design drawings are filed. If the
report contains preliminary drawings, it must be designated as a “Preliminary Supporting
Design Report.”

Docket No. RM22-7-000

- 97 -

Note: The following appendix will not appear in the Code of Federal Regulations.
Appendix
Draft Version: Landowner Bill of Rights in Federal Energy Regulatory
Commission Electric Transmission Proceedings
10. You have the right to receive compensation if your property is necessary for the
construction or modification of an authorized project. The amount of such
compensation would be determined through a negotiated easement agreement
between you and the entity applying to the Federal Energy Regulatory
Commission (Commission) for authorization to construct a transmission line
(applicant) or through an eminent domain proceeding in the appropriate Federal or
State court. The applicant cannot seek to take a property by eminent domain
unless and until the Commission approves the application, unless otherwise
provided by State or local law.
11. You have the right to request the full name, title, contact information including email address and phone number, and employer of every representative of the
applicant that contacts you about your property.
12. You have the right to access information about the proposed project through a
variety of methods, including by accessing the project website that the applicant
must maintain and keep current, by visiting a central location in your county
designated by the applicant for review of project documents, or by accessing the
Commission’s eLibrary online document information system at www.ferc.gov.
13. You have the right to participate, including by filing comments and, after an
application is filed, by intervening in any open Commission proceedings regarding
the proposed transmission project in your area. Deadlines for making these filings
may apply. For more information about how to participate and any relevant
deadlines, contact the Commission’s Office of Public Participation by phone (202502-6595) or by email ([email protected]).
14. When contacted by the applicant or a representative of the applicant either in
person, by phone, or in writing, you have the right to communicate or not to
communicate. You also have the right to hire counsel to represent you in your
dealings with the applicant and to direct the applicant and its representatives to
communicate with you only through your counsel.
15. The applicant may seek to negotiate a written easement agreement with you that
would govern the applicant’s and your rights to access and use the property that is
at issue and describe other rights and responsibilities. You have the right to
negotiate or to decline to negotiate an easement agreement with the applicant;
however, if the Commission approves the proposed project and negotiations fail or

Docket No. RM22-7-000

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you chose not to engage in negotiations, there is a possibility that your property
could be taken through an eminent domain proceeding, in which case the
appropriate Federal or State court would determine fair compensation.
16. You have the right to hire your own appraiser or other professional to appraise the
value of your property or to assist you in any easement negotiations with the
applicant or in an eminent domain proceeding before a court.
17. Except as otherwise provided by State or local law, you have the right to grant or
deny access to your property by the applicant or its representatives for preliminary
survey work or environmental assessments, and to limit any such grant in time and
scope.
18. In addition to the above rights, you may have additional rights under Federal,
State, or local laws.

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

(Issued December 15, 2022)
DANLY, Commissioner, concurring:
I concur with the issuance of this Notice of Proposed Rulemaking (NOPR)
because it is not my habit to oppose any but the most infirm proposed rules. Today’s
issuance purports to be the first step in discharging the Commission’s obligations under
Infrastructure Investment and Jobs Act,1 which, among other things, included
amendments to certain provisions of section 216 of the Federal Power Act2 (FPA) to
clarify Federal “backstop” siting of electric transmission facilities in limited
circumstances when states fail to act on certain transmission proposals. The NOPR itself,
however, largely appears to be an exercise to extend various environmental reviews
typically seen in natural gas project proceedings—a regime in which the majority of the
Commission has been imposing pervasive, standardless environmental tests well beyond
our statutory authority.
I agree that our “backstop” siting authority is limited under the Commission’s
governing statutes. I disagree that the limited “backstop” siting authority that the
Commission has been granted also confers extensive powers as an environmental and
social regulator. Regardless, the statute certainly did not extend our obligations beyond
the requirements we have always observed in order to discharge our duties under the
National Environmental Policy Act (NEPA).
In going far beyond that which is required by the Infrastructure Investment and
Jobs Act, this NOPR instead appears to represent the majority’s “environmental justice”
wish list. Accordingly, I specifically solicit citations to the provisions in section 216, as
amended—or any other statutory basis—to support each revision proposed in the NOPR
(such citations are often omitted in the NOPR itself).3 Once statutory authority is certain,
1

Pub. L. 117-58, § 40105, 135 Stat. 429.
16 U.S.C. § 824p (2018).
3
As amended by the Infrastructure Investment and Jobs Act, FPA section 216(a)(4)(G)
provides that in determining whether to designate a national interest electric transmission
corridor the Secretary of Energy “may consider” whether the designation “avoids and
minimizes, to the maximum extent practicable, and offsets to the extent appropriate and
practicable, sensitive environmental areas and cultural heritage sites.” 16 U.S.C.
§§ 824p(a)(4), 824p(a)(4)(G)(ii). As amended, FPA section 216(e)(1) provides that a
permit holder may acquire rights-of-way by the exercise of eminent domain if, among
other things, “in the determination of the Commission, the permit holder has made good
2

Docket No. RM22-7-000

-2-

commenters should further provide legal analysis and evidence whether the proposed rule
constitutes good policy, such as, for example, whether it will be beneficial in determining
whether to site electric transmission projects when the states have not done so, or whether
the rule will tend to ensure almost nothing is ever sited.
For example, we propose to “require [electric transmission project] applicants to
develop and file an Environmental Justice Public Engagement Plan as part of their
Project Participation Plan under § 50.4(a)(4).”4 The Commission does not cite any
statute that requires or even permits us to require this Environmental Justice Public
Engagement Plan, instead citing Executive Orders, at least one of which the majority
acknowledges does not bind the Commission.5 The Commission further “proposes to
define the term ‘environmental justice community’ as any disadvantaged community that
has been historically marginalized and overburdened by pollution, including, but not
limited to, minority populations, low-income populations, or indigenous peoples.”6 What
does it mean to be “overburdened by pollution?” Is this a concept that the Commission—
a Federal energy rate regulator—is authorized and equipped to define or establish? Will
the regulated community of transmission developers have any idea how to comply with
such ambiguities? Is there anything about being “overburdened” in the Infrastructure
Investment and Jobs Act?
The Commission also seeks to decree that the Environmental Justice Public
Engagement Plan must “describe the manner in which the applicant will reach out to
environmental justice communities about potential mitigation,”7 or, in other words,
include a mitigation plan, even though “NEPA not only does not require agencies to
discuss any particular mitigation plans that they might put in place, it does not require

faith efforts to engage with landowners and other stakeholders early in the applicable
permitting process.” Id. § 824p(e)(1). It is stretching these amendments to FPA section
216 beyond their breaking point to use them to justify the scope of environmental review
the Commission now proposes in the NOPR.
4
Applications for Permits to Site Interstate Elec. Transmission Facilities, 181 FERC
¶ 61,205 at P 31 (2022) (NOPR); see also 18 C.F.R. § 50.4(a).
5
NOPR, 181 FERC ¶ 61,205 at PP 30, 65, n.72. The Commission also proposes to
require a new “Environmental Justice Report” as part of its regulations implementing
NEPA. See id. PP 65-67. Again, I would like to know where the Commission gets this
authority. We also “expect applicants to utilize the latest guidance and data from [the
Council on Environmental Quality], [the Environmental Protection Agency], the Census
Bureau, and other authoritative sources.” Id. P 67. Does the “latest” guidance and data
include anything issued after pre-filing but before permitting? What about the day after
permitting? What about during the pendency of a rehearing request? And who or what
are “other authoritative sources?”
6
Id. P 32 (emphasis added).
7
Id. P 31.

Docket No. RM22-7-000

-3-

agencies—or third parties—to effect any.”8 Commenters should tell us how the
Commission can impose such a requirement when the Supreme Court and the D.C.
Circuit have ruled otherwise.
By way of further example, as part of its NEPA review, the Commission proposes
to require applicants to submit “Resource Report 10” on “Air quality and environmental
noise.”9 “Proposed Resource Report 10 would require the applicant to estimate
emissions from the proposed project . . . and describe proposed measures to mitigate the
impacts.”10 “Specifically, the applicant must provide the reasonably foreseeable
emissions from construction, operation, and maintenance of the project facilities . . . and
describe any proposed mitigation measures to control emissions.”11 Someone better
propose some standards because these proposals sound much more like aspirational goals
than clear rules that a developer could figure out how to comply with. What are
“foreseeable emissions” from “maintenance,” for example? If a transmission line falls in
a storm, is a transmission developer supposed to predict “reasonably foreseeable”
emissions from the truck the utility line worker uses to drive out to the site? If the line
worker uses a rechargeable ratchet to loosen a bolt, is the transmission developer
supposed to predict the “reasonably foreseeable” emissions from electric generation
required to recharge the battery? And, again, by what authority do we propose to require
a mitigation plan over directly contrary judicial precedent?12
As another example, the Commission proposes to “add language to § 50.11(d) that
would, under certain circumstances and for a limited time, preclude the issuance of
authorizations to proceed with construction of transmission facilities authorized under
FPA section 216 while requests for rehearing of orders issuing permits remain pending
before the Commission.”13 Though in a different context and sounding in a different
statute, the majority imposed a similar policy, including the issuance of stays, for natural
gas projects, over my dissent.14 I solicit comment whether we have this authority, and if
so, whether it is sound policy to exercise it as part of our limited “backstop” siting
jurisdiction.

8

Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 206 (D.C. Cir. 1991) (citing
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 & n.16 (1989)).
9
NOPR, 181 FERC ¶ 61,205 at P 69.
10
Id.
11
Id. P 70.
12
See supra P 5 n.8.
13
NOPR, 181 FERC ¶ 61,205 at P 47.
14
See Limiting Authorizations to Proceed with Constr. Activities Pending Rehearing,
Order No. 871-B, 175 FERC ¶ 61,098 (Danly, Comm’r, dissenting), order on reh’g, 176
FERC ¶ 61,062 (2021) (Danly, Comm’r, dissenting).

Docket No. RM22-7-000

-4-

I have similar questions to those raised here about nearly every aspect of the
NOPR.15 The powers that Congress has granted the Commission are narrow, as has been
acknowledged, but they are profound and, depending upon how the Commission
implements those authorities, can have a lasting effect on the development of the
transmission system. Accordingly, I invite comments from every interested party on my
questions and any other aspect of the proposed rules so that the Commission will have a
full record as it considers whether to promulgate these or related rules.
It is hard to reconcile today’s proposed rule, adorned as it is by burdensome,
unnecessary requirements, with what appears, at the merest glance, to have been the
purpose of Congress when passing the Infrastructure Investment and Jobs Act—to
facilitate, not inhibit, the siting of transmission infrastructure.
For these reasons, I respectfully concur.

________________________
James P. Danly
Commissioner

15

For example, I question whether we are complying with the purpose of the act to
engage in parallel activity with the states during the pendency of the states’ review of
transmission project proposals, a subject that Commissioner Christie has thoroughly
canvassed in his separate statement to this order.

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Applications for Permits to Site Interstate Electric
Transmission Facilities

Docket No. RM22-7-000

(Issued December 15, 2022)
CHRISTIE, Commissioner, concurring:
Updating the Commission’s existing regulations and practices governing the
Commission’s exercise of its transmission siting backstop authority is required by a
statutory change adopted last year by Congress.1 While, of course, we must implement
the change made by Congress, a simple update to our existing regulation would have
been sufficient. This order,2 however, goes beyond merely implementing the required
conforming changes to our existing regulation. So while I concur with putting these
amendments out for comment, I look forward to reviewing the comments on this
proposal, particularly from organizations representing stateState regulators.
Some relevant history: States have historically had sole authority for permitting
and siting transmission lines (two very separate functions), and for good reasons. Every
power line, from the small ones below 100 kV to the huge 765 kV lines, visible for many
miles around, comes with its own unique set of facts and local concerns. One of those
concerns—let us not forget— is the cost, and that cost will be paid, in some portion, by
consumers in the situs state, through FERC formula rates. So, whenever the day comes
when FERC orders a line built after a stateState has found it was not needed or found the
cost was not reasonable and prudent, FERC will not only be choosing a route that was
rejected by stateState regulators, but FERC will be ordering the stateState’s consumers to
pay for the project, under applicable cost allocation rules. And even if the proposed
project ends up being litigated for years before any steel is in the ground — a virtual
certainty for a controversial project that was rejected by stateState regulators but imposed

1

The Infrastructure Investment and Jobs Act (IIJA), Pub. L. 117-58, § 40105, 135 Stat.
429 (2021), amended section 216 of the Federal Power Act (FPA) in certain respects.
Most notably, it explicitly allows the Commission to grant transmission siting authority
even when a stateState has denied an application within one year. 16 U.S.C.
824p(b)(1)(C) (as amended by IIJA section 1221).
2
Applications for Permits to Site Interstate Electric Transmission Facilities, 181 FERC ¶
61,205 (2022) (Backstop Siting NOPR).

Docket No. RM22-7-000

2

by FERC — consumers will likely be paying through formula rates for years for preconstruction costs, which can be substantial.3
State regulators are much better prepared to deal with that myriad of local
concerns, including concerns over routing and costs, than FERC. Furthermore, stateState
processes are far more convenient and user-friendly than processes at FERC, if for no
other reason than geographic proximity. So, waiting one full year to allow a stateState to
“go first” and make its decision makes sense for a lot of reasons. One obvious reason is
that if the line is truly needed, the stateState regulators will in all likelihood approve it,
and no FERC staff time and resources will need to be expended at all. The whole mantra
that goes “the states are blocking needed transmission all over the country!” is simply a
political and special-interest narrative. The steadily mounting increases over the past
decade in transmission rate base nationally,4 with concomitant skyrocketing increases in
transmission costs to consumers, blows up the narrative that states are systemically
blocking needed transmission lines. Contrary to the narrative, states need more authority
to scrutinize transmission projects for need and prudence of cost, not less, to protect
consumers.
This proposed regulation changes the practice this Commission adopted in 2006 of
holding off on all processes here for a year, to one in which pre-filing processes will
begin, potentially concurrent with the initiation of stateState proceedings.5 That change
is not required by last year’s congressional action. It is an act of discretion.
Some more history: The Energy Policy Act of 20056 altered the traditional
arrangement of stateState authority by creating FPA section 216, which provided this
Commission with supplemental or “backstop” siting authority in certain narrow
For example, the Potomac-Appalachian Transmission Highline (PATH) Project —
which was abandoned, and never even completed — spawned several years of litigation
and imposed many millions of dollars in costs (including return on equity) to ratepayers.
See Newman v. FERC, 27 F.4th 690 (D.C. Cir. 2022) (noting that PATH sought recovery
through rates of over $121 million in abandonment costs alone, charges that were
litigated over several years).
4
See, e.g., RRA Regulatory Focus An Overview of Transmission Ratemaking in the U.S.
— 2021 Update, S&P GLOBAL MARKET INTELLIGENCE, Sept. 16, 2021 (“Growth in
aggregate transmission rate base, 2012-2020” chart at page 3, showing increase from
$57.8 billion to $131.7 billion); see also Jim O’Reilly, PJM, AEP transcos drive 9.17%
YOY [year-over-year] increase in US transmission rate base, S&P CAPITAL IQ PRO,
November 1, 2022 (“Transmission rate base among a group of 76 utilities in the U.S.
maintained year-over-year growth above 9% for the third consecutive year . . . .”.”)
(emphasis added).
5
Backstop Siting NOPR, 181 FERC ¶ 61,205 at PP 21-23.
6
Pub. L. 109-58, § 1221, 119 Stat. 594 (2005) (amended 2021) (EPAct 2005).
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circumstances. This authority was limited, not plenary: As discussed in greater detail in
the order, EPAct 2005 explicitly authorized the Commission to exercise transmission
siting authority in DOE-designated “national-interest” transmission corridors when a
stateState application had been rendered futile because the stateState lacks authority to
act, the applicant lacks standing to obtain authority from the stateState, the stateState
attaches conditions rendering the project infeasible, or the stateState fails to act within
one year.7
In Order No. 689, the Commission implemented this new FPA section 216
authority.8 In doing so, it construed that authority expansively in two respects.. First, it
construed the statute as vesting siting authority in the Commission even when a stateState
acts within a year to deny an application. Second, it construed the statute as “permit[ting]
parallel Commission-State processes.”9 But these expansive constructions were promptly
curbed: the first, by the Fourth Circuit Court of Appeals; the second, by the Commission
itself.
As for the first, the Fourth Circuit correctly found in Piedmont that Congress had
not, in fact, authorized the Commission to grant an application that had been timely
denied by a stateState.10 In direct response to the Fourth Circuit’s opinion, last year
Congress expanded the Commission’s FPA section 216 a notch further, by empowering
the Commission essentially to exercise a veto over a stateState’s timely decision to deny a
transmission siting application. In other words, in the IIJA, Congress sought to (and did)
overturn the key holding in Piedmont.
As for the second, the Commission wisely decided that “that States which have
authority to approve the siting of facilities should have one full year to consider a siting
application without there being any overlapping Commission process,” and therefore
found that, “in cases where our jurisdiction rests on FPA section 216(b)(1)(C), the prefiling process should not commence until one year after the relevant State applications
have been filed.”11 This policy was not set in stone, of course — the Commission noted
7

See Backstop Siting NOPR, 181 FERC ¶ 61,205 at PP 2-7.
Regulations for Filing Applications for Permits to Site Interstate Electric Transmission
Facilities, Order No. 689, FERC Stats. & Regs. ¶ 31,234 (2006) (Order No. 689), reh’g
denied, 119 FERC ¶ 61,154 (2007).
9
Id. P 20; see also id. P 19 (same). I won’t opine on whether this construction is correct
or not — though seemingly reasonable, it doesn’t seem to be rooted in anything more
than an inference from the fact that the Commission may act if the stateState has failed to
do so within a year — but I will observe that it is not compelled by citations to the
statutory text or legislative history.
10
Piedmont Envtl. Council v. FERC, 558 F.3d 304 (4th Cir. 2009) (Piedmont), cert.
denied, 558 U.S. 1147 (2010).
11
Order No. 689, FERC Stats. & Regs. ¶ 31,234 at P 21 (footnote omitted).
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Docket No. RM22-7-000

4

that it would “reconsider the issue” if in the future it turned out “that the lack of a
Commission pre-filing process prior to the end of the one year is delaying projects or
otherwise not in the public interest.”12
This was sound policy in 2006, and I am not convinced that the intervening years
have taught us that “the lack of a Commission pre-filing process prior to the end of the
one year is delaying projects or otherwise not in the public interest.”13 Nor did Congress,
in the IIJA, do anything to suggest that commencement of the Commission’s pre-filing
process should be accelerated — although of course it could have.
Nonetheless, I support this order, in its current form, because I believe that the
proposal to allow states a 90-day comment period following a year of pre-filing processes
may afford adequate protection for the states and their processes, provided that the
Commission’s pre-filing process does not begin before the relevant stateState processes
have been commenced. This order actually invites comment on whether FERC’s prefiling processes should be allowed to commence prior to the initiation of stateState
proceedings.14 I would not even have raised that prospect. I ask states in particular to
review closely and comment on these provisions. There are also other examples of this
order going beyond where it needed to go.15
To be clear, I have no concern with informal communications between applicants
and Commission staff before the states have had a year to act. Nor do I have any concern
with allowing an initial consultation or other preparatory work during this one-year
period. But as discussed above, I believe strongly that the states should have an
opportunity to complete their processes without any impediment or distraction from
Commission proceedings.
I support revising the Commission’s Regulations to reflect the modest expansion
of its authority worked on FPA section 216 by the IIJA, and I am inclined to believe that
the 90-day comment period afforded to states at the close of a year’s worth of pre-filing
may adequately protect a stateState’s interests. To that extent, I support putting this order
out for comment and I look forward to the comments the Commission will receive.

12

Id.
Id.
14
Backstop Siting NOPR, 181 FERC ¶ 61,205 at P 23.
15
For example, the order proposes a new regulatory definition of “environmental justice
community.” Id. P 32. This concept has been in flux since it was created and it
continues to evolve; nothing in the IIJA’s amendments to FPA ssection 216 either
explicitly or implicitly requires the Commission to adopt any such definition at all herein.
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Docket No. RM22-7-000
For these reasons, I concur.
______________________________
Mark C. Christie
Commissioner

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