16 U.S.C. 824p

§ 824p

TITLE 16—CONSERVATION

the change is just, reasonable, not unduly discriminatory or preferential, is in the public interest, and satisfies the requirements of subsection (c) of this section.
(g) Reliability reports
The ERO shall conduct periodic assessments of
the reliability and adequacy of the bulk-power
system in North America.
(h) Coordination with Canada and Mexico
The President is urged to negotiate international agreements with the governments of
Canada and Mexico to provide for effective compliance with reliability standards and the effectiveness of the ERO in the United States and
Canada or Mexico.
(i) Savings provisions
(1) The ERO shall have authority to develop
and enforce compliance with reliability standards for only the bulk-power system.
(2) This section does not authorize the ERO or
the Commission to order the construction of additional generation or transmission capacity or
to set and enforce compliance with standards for
adequacy or safety of electric facilities or services.
(3) Nothing in this section shall be construed
to preempt any authority of any State to take
action to ensure the safety, adequacy, and reliability of electric service within that State, as
long as such action is not inconsistent with any
reliability standard, except that the State of
New York may establish rules that result in
greater reliability within that State, as long as
such action does not result in lesser reliability
outside the State than that provided by the reliability standards.
(4) Within 90 days of the application of the
Electric Reliability Organization or other affected party, and after notice and opportunity
for comment, the Commission shall issue a final
order determining whether a State action is inconsistent with a reliability standard, taking
into consideration any recommendation of the
ERO.
(5) The Commission, after consultation with
the ERO and the State taking action, may stay
the effectiveness of any State action, pending
the Commission’s issuance of a final order.
(j) Regional advisory bodies
The Commission shall establish a regional advisory body on the petition of at least twothirds of the States within a region that have
more than one-half of their electric load served
within the region. A regional advisory body
shall be composed of one member from each participating State in the region, appointed by the
Governor of each State, and may include representatives of agencies, States, and provinces
outside the United States. A regional advisory
body may provide advice to the Electric Reliability Organization, a regional entity, or the
Commission regarding the governance of an existing or proposed regional entity within the
same region, whether a standard proposed to
apply within the region is just, reasonable, not
unduly discriminatory or preferential, and in
the public interest, whether fees proposed to be
assessed within the region are just, reasonable,

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not unduly discriminatory or preferential, and
in the public interest and any other responsibilities requested by the Commission. The Commission may give deference to the advice of any
such regional advisory body if that body is organized on an Interconnection-wide basis.
(k) Alaska and Hawaii
The provisions of this section do not apply to
Alaska or Hawaii.
(June 10, 1920, ch. 285, pt. II, § 215, as added Pub.
L. 109–58, title XII, § 1211(a), Aug. 8, 2005, 119
Stat. 941.)
STATUS OF ERO
Pub. L. 109–58, title XII, § 1211(b), Aug. 8, 2005, 119
Stat. 946, provided that: ‘‘The Electric Reliability Organization certified by the Federal Energy Regulatory
Commission under section 215(c) of the Federal Power
Act [16 U.S.C. 824o(c)] and any regional entity delegated
enforcement authority pursuant to section 215(e)(4) of
that Act [16 U.S.C. 824o(e)(4)] are not departments,
agencies, or instrumentalities of the United States
Government.’’
ACCESS APPROVALS BY FEDERAL AGENCIES
Pub. L. 109–58, title XII, § 1211(c), Aug. 8, 2005, 119
Stat. 946, provided that: ‘‘Federal agencies responsible
for approving access to electric transmission or distribution facilities located on lands within the United
States shall, in accordance with applicable law, expedite any Federal agency approvals that are necessary
to allow the owners or operators of such facilities to
comply with any reliability standard, approved by the
[Federal Energy Regulatory] Commission under section
215 of the Federal Power Act [16 U.S.C. 824o], that pertains to vegetation management, electric service restoration, or resolution of situations that imminently
endanger the reliability or safety of the facilities.’’

§ 824p. Siting of interstate electric transmission
facilities
(a) Designation of national interest electric
transmission corridors
(1) Not later than 1 year after August 8, 2005,
and every 3 years thereafter, the Secretary of
Energy (referred to in this section as the ‘‘Secretary’’), in consultation with affected States,
shall conduct a study of electric transmission
congestion.
(2) After considering alternatives and recommendations from interested parties (including
an opportunity for comment from affected
States), the Secretary shall issue a report, based
on the study, which may designate any geographic area experiencing electric energy transmission capacity constraints or congestion that
adversely affects consumers as a national interest electric transmission corridor.
(3) The Secretary shall conduct the study and
issue the report in consultation with any appropriate regional entity referred to in section 824o
of this title.
(4) In determining whether to designate a national interest electric transmission corridor
under paragraph (2), the Secretary may consider
whether—
(A) the economic vitality and development
of the corridor, or the end markets served by
the corridor, may be constrained by lack of
adequate or reasonably priced electricity;
(B)(i) economic growth in the corridor, or
the end markets served by the corridor, may

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TITLE 16—CONSERVATION

be jeopardized by reliance on limited sources
of energy; and
(ii) a diversification of supply is warranted;
(C) the energy independence of the United
States would be served by the designation;
(D) the designation would be in the interest
of national energy policy; and
(E) the designation would enhance national
defense and homeland security.
(b) Construction permit
Except as provided in subsection (i) of this section, the Commission may, after notice and an
opportunity for hearing, issue one or more permits for the construction or modification of
electric transmission facilities in a national interest electric transmission corridor designated
by the Secretary under subsection (a) of this
section if the Commission finds that—
(1)(A) a State in which the transmission facilities are to be constructed or modified does
not have authority to—
(i) approve the siting of the facilities; or
(ii) consider the interstate benefits expected to be achieved by the proposed construction or modification of transmission facilities in the State;
(B) the applicant for a permit is a transmitting utility under this chapter but does not
qualify to apply for a permit or siting approval for the proposed project in a State because the applicant does not serve end-use customers in the State; or
(C) a State commission or other entity that
has authority to approve the siting of the facilities has—
(i) withheld approval for more than 1 year
after the filing of an application seeking approval pursuant to applicable law or 1 year
after the designation of the relevant national interest electric transmission corridor, whichever is later; or
(ii) conditioned its approval in such a manner that the proposed construction or modification will not significantly reduce transmission congestion in interstate commerce
or is not economically feasible;
(2) the facilities to be authorized by the permit will be used for the transmission of electric energy in interstate commerce;
(3) the proposed construction or modification is consistent with the public interest;
(4) the proposed construction or modification will significantly reduce transmission
congestion in interstate commerce and protects or benefits consumers;
(5) the proposed construction or modification is consistent with sound national energy
policy and will enhance energy independence;
and
(6) the proposed modification will maximize,
to the extent reasonable and economical, the
transmission capabilities of existing towers or
structures.
(c) Permit applications
(1) Permit applications under subsection (b) of
this section shall be made in writing to the
Commission.
(2) The Commission shall issue rules specifying—

§ 824p

(A) the form of the application;
(B) the information to be contained in the
application; and
(C) the manner of service of notice of the
permit application on interested persons.
(d) Comments
In any proceeding before the Commission
under subsection (b) of this section, the Commission shall afford each State in which a transmission facility covered by the permit is or will
be located, each affected Federal agency and Indian tribe, private property owners, and other
interested persons, a reasonable opportunity to
present their views and recommendations with
respect to the need for and impact of a facility
covered by the permit.
(e) Rights-of-way
(1) In the case of a permit under subsection (b)
of this section for electric transmission facilities to be located on property other than property owned by the United States or a State, if
the permit holder cannot acquire by contract, or
is unable to agree with the owner of the property to the compensation to be paid for, the necessary right-of-way to construct or modify the
transmission facilities, the permit holder may
acquire the right-of-way by the exercise of the
right of eminent domain in the district court of
the United States for the district in which the
property concerned is located, or in the appropriate court of the State in which the property
is located.
(2) Any right-of-way acquired under paragraph
(1) shall be used exclusively for the construction
or modification of electric transmission facilities within a reasonable period of time after the
acquisition.
(3) The practice and procedure in any action or
proceeding under this subsection in the district
court of the United States shall conform as
nearly as practicable to the practice and procedure in a similar action or proceeding in the
courts of the State in which the property is located.
(4) Nothing in this subsection shall be construed to authorize the use of eminent domain
to acquire a right-of-way for any purpose other
than the construction, modification, operation,
or maintenance of electric transmission facilities and related facilities. The right-of-way cannot be used for any other purpose, and the rightof-way shall terminate upon the termination of
the use for which the right-of-way was acquired.
(f) Compensation
(1) Any right-of-way acquired pursuant to subsection (e) of this section shall be considered a
taking of private property for which just compensation is due.
(2) Just compensation shall be an amount
equal to the fair market value (including applicable severance damages) of the property taken
on the date of the exercise of eminent domain
authority.
(g) State law
Nothing in this section precludes any person
from constructing or modifying any transmission facility in accordance with State law.
(h) Coordination of Federal authorizations for
transmission facilities
(1) In this subsection:

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TITLE 16—CONSERVATION

(A) The term ‘‘Federal authorization’’ means
any authorization required under Federal law
in order to site a transmission facility.
(B) The term ‘‘Federal authorization’’ includes such permits, special use authorizations, certifications, opinions, or other approvals as may be required under Federal law
in order to site a transmission facility.
(2) The Department of Energy shall act as the
lead agency for purposes of coordinating all applicable Federal authorizations and related environmental reviews of the facility.
(3) To the maximum extent practicable under
applicable Federal law, the Secretary shall coordinate the Federal authorization and review
process under this subsection with any Indian
tribes, multistate entities, and State agencies
that are responsible for conducting any separate
permitting and environmental reviews of the facility, to ensure timely and efficient review and
permit decisions.
(4)(A) As head of the lead agency, the Secretary, in consultation with agencies responsible for Federal authorizations and, as appropriate, with Indian tribes, multistate entities,
and State agencies that are willing to coordinate their own separate permitting and environmental reviews with the Federal authorization
and environmental reviews, shall establish
prompt and binding intermediate milestones and
ultimate deadlines for the review of, and Federal
authorization decisions relating to, the proposed
facility.
(B) The Secretary shall ensure that, once an
application has been submitted with such data
as the Secretary considers necessary, all permit
decisions and related environmental reviews
under all applicable Federal laws shall be completed—
(i) within 1 year; or
(ii) if a requirement of another provision of
Federal law does not permit compliance with
clause (i), as soon thereafter as is practicable.
(C) The Secretary shall provide an expeditious
pre-application mechanism for prospective applicants to confer with the agencies involved to
have each such agency determine and communicate to the prospective applicant not later
than 60 days after the prospective applicant submits a request for such information concerning—
(i) the likelihood of approval for a potential
facility; and
(ii) key issues of concern to the agencies and
public.
(5)(A) As lead agency head, the Secretary, in
consultation with the affected agencies, shall
prepare a single environmental review document, which shall be used as the basis for all decisions on the proposed project under Federal
law.
(B) The Secretary and the heads of other agencies shall streamline the review and permitting
of transmission within corridors designated
under section 503 of the Federal Land Policy and
Management Act 1 (43 U.S.C. 1763) by fully tak1 So

in original. Probably should be followed by ‘‘of 1976’’.

Page 1344

ing into account prior analyses and decisions relating to the corridors.
(C) The document shall include consideration
by the relevant agencies of any applicable criteria or other matters as required under applicable law.
(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 pursuant to this section for deciding whether to issue the authorization, the
applicant or any State in which the facility
would be located may file an appeal with the
President, who shall, in consultation with the
affected agency, review the denial or failure to
take action on the pending application.
(B) Based on the overall record and in consultation with the affected agency, the President may—
(i) issue the necessary authorization with
any appropriate conditions; or
(ii) deny the application.
(C) The President shall issue a decision not
later than 90 days after the date of the filing of
the appeal.
(D) In making a decision under this paragraph,
the President shall comply with applicable requirements of Federal law, including any requirements of—
(i) the National Forest Management Act of
1976 (16 U.S.C. 472a et seq.);
(ii) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.);
(iii) the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.);
(iv) the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.); and
(v) the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).
(7)(A) Not later than 18 months after August 8,
2005, the Secretary shall issue any regulations
necessary to implement this subsection.
(B)(i) Not later than 1 year after August 8,
2005, the Secretary and the heads of all Federal
agencies with authority to issue Federal authorizations shall enter into a memorandum of understanding to ensure the timely and coordinated review and permitting of electricity transmission facilities.
(ii) Interested Indian tribes, multistate entities, and State agencies may enter the memorandum of understanding.
(C) The head of each Federal agency with authority to issue a Federal authorization shall
designate a senior official responsible for, and
dedicate sufficient other staff and resources to
ensure, full implementation of the regulations
and memorandum required under this paragraph.
(8)(A) Each Federal land use authorization for
an electricity transmission facility shall be issued—
(i) for a duration, as determined by the Secretary, commensurate with the anticipated
use of the facility; and
(ii) with appropriate authority to manage
the right-of-way for reliability and environmental protection.
(B) On the expiration of the authorization (including an authorization issued before August 8,

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2005), the authorization shall be reviewed for renewal taking fully into account reliance on such
electricity infrastructure, recognizing the importance of the authorization for public health,
safety, and economic welfare and as a legitimate
use of Federal land.
(9) In exercising the responsibilities under this
section, the Secretary shall consult regularly
with—
(A) the Federal Energy Regulatory Commission;
(B) electric reliability organizations (including related regional entities) approved by the
Commission; and
(C) Transmission Organizations approved by
the Commission.
(i) Interstate compacts
(1) The consent of Congress is given for three
or more contiguous States to enter into an
interstate compact, subject to approval by Congress, establishing regional transmission siting
agencies to—
(A) facilitate siting of future electric energy
transmission facilities within those States;
and
(B) carry out the electric energy transmission siting responsibilities of those States.
(2) The Secretary may provide technical assistance to regional transmission siting agencies
established under this subsection.
(3) The regional transmission siting agencies
shall have the authority to review, certify, and
permit siting of transmission facilities, including facilities in national interest electric transmission corridors (other than facilities on property owned by the United States).
(4) The Commission shall have no authority to
issue a permit for the construction or modification of an electric transmission facility within a
State that is a party to a compact, unless the
members of the compact are in disagreement
and the Secretary makes, after notice and an
opportunity for a hearing, the finding described
in subsection (b)(1)(C) of this section.
(j) Relationship to other laws
(1) Except as specifically provided, nothing in
this section affects any requirement of an environmental law of the United States, including
the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
(2) Subsection (h)(6) of this section shall not
apply to any unit of the National Park System,
the National Wildlife Refuge System, the National Wild and Scenic Rivers System, the National Trails System, the National Wilderness
Preservation System, or a National Monument.
(k) ERCOT
This section shall not apply within the area
referred to in section 824k(k)(2)(A) of this title.
(June 10, 1920, ch. 285, pt. II, § 216, as added Pub.
L. 109–58, title XII, § 1221(a), Aug. 8, 2005, 119
Stat. 946.)
REFERENCES IN TEXT
The National Forest Management Act of 1976, referred to in subsec. (h)(6)(D)(i), is Pub. L. 94–588, Oct. 22,
1976, 90 Stat. 2949, as amended, which enacted sections
472a, 521b, 1600, and 1611 to 1614 of this title, amended
sections 500, 515, 516, 518, 576b, and 1601 to 1610 of this

§ 824q

title, repealed sections 476, 513, and 514 of this title, and
enacted provisions set out as notes under sections 476,
513, 528, 594–2, and 1600 of this title. For complete classification of this Act to the Code, see Short Title of 1976
Amendment note set out under section 1600 of this title
and Tables.
The Endangered Species Act of 1973, referred to in
subsec. (h)(6)(D)(ii), is Pub. L. 93–205, Dec. 28, 1973, 87
Stat. 884, as amended, which is classified principally to
chapter 35 (§ 1531 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 1531 of this title and Tables.
The Federal Water Pollution Control Act, referred to
in subsec. (h)(6)(D)(iii), is act June 30, 1948, ch. 758, as
amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86
Stat. 816, which is classified generally to chapter 26
(§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the
Code, see Short Title note set out under section 1251 of
Title 33 and Tables.
The National Environmental Policy Act of 1969, referred to in subsecs. (h)(6)(D)(iv) and (j), is Pub. L.
91–190, Jan. 1, 1970, 83 Stat. 852, as amended, which is
classified generally to chapter 55 (§ 4321 et seq.) of Title
42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note
set out under section 4321 of Title 42 and Tables.
The Federal Land Policy and Management Act of
1976, referred to in subsec. (h)(6)(D)(v), is Pub. L. 94–579,
Oct. 21, 1976, 90 Stat. 2743, as amended, which is classified principally to chapter 35 (§ 1701 et seq.) of Title 43,
Public Lands. For complete classification of this Act to
the Code, see Short Title note set out under section
1701 of Title 43 and Tables.

§ 824q. Native load service obligation
(a) Definitions
In this section:
(1) The term ‘‘distribution utility’’ means an
electric utility that has a service obligation to
end-users or to a State utility or electric cooperative that, directly or indirectly, through
one or more additional State utilities or electric cooperatives, provides electric service to
end-users.
(2) The term ‘‘load-serving entity’’ means a
distribution utility or an electric utility that
has a service obligation.
(3) The term ‘‘service obligation’’ means a
requirement applicable to, or the exercise of
authority granted to, an electric utility under
Federal, State, or local law or under long-term
contracts to provide electric service to endusers or to a distribution utility.
(4) The term ‘‘State utility’’ means a State
or any political subdivision of a State, or any
agency, authority, or instrumentality of any
one or more of the foregoing, or a corporation
that is wholly owned, directly or indirectly, by
any one or more of the foregoing, competent
to carry on the business of developing, transmitting, utilizing, or distributing power.
(b) Meeting service obligations
(1) Paragraph (2) applies to any load-serving
entity that, as of August 8, 2005—
(A) owns generation facilities, markets the
output of Federal generation facilities, or
holds rights under one or more wholesale contracts to purchase electric energy, for the purpose of meeting a service obligation; and
(B) by reason of ownership of transmission
facilities, or one or more contracts or service
agreements for firm transmission service,