Rule2024-08157
Coordination of Federal Authorizations for Electric Transmission Facilities
Primary source
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Published
May 1, 2024
Effective
May 31, 2024
Issuing agencies
Energy Department
Abstract
The Department of Energy (DOE) is amending its regulations for the timely coordination of Federal authorizations for proposed interstate electric transmission facilities pursuant to the Federal Power Act (FPA). Specifically, DOE is establishing an integrated and comprehensive Coordinated Interagency Transmission Authorizations and Permits Program (CITAP Program); making participation in the Integrated Interagency Pre-Application (IIP) Process a pre-condition for assistance under the CITAP Program; re-establishing the IIP Process as an iterative and collaborative process between the proponent of a proposed electric transmission project and Federal and State agencies to develop information needed for Federal authorizations; requiring the project proponent to engage in robust engagement with the public, communities of interest, and Indian Tribes during the IIP Process; aligning and harmonizing the IIP Process and implementation of the FPA with the Fixing America's Surface Transportation Act; and ensuring that DOE may carry out its statutory obligation to prepare a single environmental review document sufficient for the purposes of all Federal authorizations necessary to site a proposed project.
Full Text
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[Federal Register Volume 89, Number 85 (Wednesday, May 1, 2024)]
[Rules and Regulations]
[Pages 35312-35382]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08157]
[[Page 35311]]
Vol. 89
Wednesday,
No. 85
May 1, 2024
Part II
Department of Energy
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10 CFR Part 900
Coordination of Federal Authorizations for Electric Transmission
Facilities; Final Rule
Federal Register / Vol. 89 , No. 85 / Wednesday, May 1, 2024 / Rules
and Regulations
[[Page 35312]]
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DEPARTMENT OF ENERGY
10 CFR Part 900
[DOE-HQ-2023-0050]
RIN 1901-AB62
Coordination of Federal Authorizations for Electric Transmission
Facilities
AGENCY: Grid Deployment Office, U.S. Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is amending its regulations for
the timely coordination of Federal authorizations for proposed
interstate electric transmission facilities pursuant to the Federal
Power Act (FPA). Specifically, DOE is establishing an integrated and
comprehensive Coordinated Interagency Transmission Authorizations and
Permits Program (CITAP Program); making participation in the Integrated
Interagency Pre-Application (IIP) Process a pre-condition for
assistance under the CITAP Program; re-establishing the IIP Process as
an iterative and collaborative process between the proponent of a
proposed electric transmission project and Federal and State agencies
to develop information needed for Federal authorizations; requiring the
project proponent to engage in robust engagement with the public,
communities of interest, and Indian Tribes during the IIP Process;
aligning and harmonizing the IIP Process and implementation of the FPA
with the Fixing America's Surface Transportation Act; and ensuring that
DOE may carry out its statutory obligation to prepare a single
environmental review document sufficient for the purposes of all
Federal authorizations necessary to site a proposed project.
DATES: This rule is effective May 31, 2024.
FOR FURTHER INFORMATION CONTACT: Liza Reed, U.S. Department of Energy,
Grid Deployment Office, 4H-065, 1000 Independence Avenue SW,
Washington, DC 20585. Telephone: (202) 586-2006. Email:
<a href="/cdn-cgi/l/email-protection#084b415c4958486079266c676d266f677e"><span class="__cf_email__" data-cfemail="6122283520312109104f050e044f060e17">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background and Authority
III. Summary of the Final Rule
IV. Tribal Sovereignty
V. Terminology and Clarification Changes
VI. Discussion of Comments
A. General
B. Purpose and Scope
C. Qualifying Projects
D. Purpose and Scope of IIP Process
E. Public Participation in the IIP Process
F. Timing of IIP Process and NOI Issuance
G. IIP Process Initiation Request
H. Standard and Project-Specific Schedules
I. Selection of NEPA Lead and Joint Lead Agencies and
Environmental Review
J. Section 106 of the NHPA
K. Definitions
L. Resource Reports
M. Administrative Docket
N. Interaction With FPA 216(a) and FPA 216(b)
O. Miscellaneous
P. Out of Scope Comments
VII. Section-by-Section Analysis
VIII. Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act of 1995
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 12988
F. Review Under Executive Order 13132
G. Review Under Executive Order 13175
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under Executive Order 12630
J. Review Under Executive Order 13211
K. Review Under the Treasury and General Government
Appropriations Act, 1999
L. Review Under the Treasury and General Government
Appropriations Act, 2001
IX. Congressional Notification
X. Rehearing
XI. Approval by the Office of the Secretary of Energy
I. Executive Summary
In this final rule, the Department of Energy (DOE) is amending its
regulations under section 216(h) of the Federal Power Act (16 U.S.C.
824p(h)) (FPA) to establish a Coordinated Interagency Transmission
Authorizations and Permits Program (CITAP Program) under which DOE will
coordinate and expedite Federal authorizations and environmental
reviews required to site proposed electric transmission facilities,
which may include reviews pursuant to the National Environmental Policy
Act of 1969 (Pub. L. 91-190, as amended, 42 U.S.C. 4321 et seq.)
(NEPA), the National Historic Preservation Act (Pub. L. 89-665, as
amended, 54 U.S.C. 30010 et seq.) (NHPA), the Endangered Species Act of
1973 (Pub. L. 93-205, as amended, 16 U.S.C. 1531 et seq.) (ESA), and
evaluations necessary for authorizations under the Federal Land Policy
and Management Act (Pub. L. 94-579, as amended, 43 U.S.C. 1701 et
seq.). DOE coordination under this final rule will increase the
efficiency and effectiveness of the Federal authorization and review
process for proposed electric transmission facilities by establishing
pre-application procedures designed to collect the information needed
to perform efficient and timely Federal authorization and environmental
reviews, reducing duplication of effort through preparation of a single
environmental review document as the basis for all Federal decisions,
and setting binding schedules for the completion of all Federal
authorizations and environmental reviews. In doing so, this final rule
aims to reduce the time it takes to site and permit the electric
transmission infrastructure needed to ensure the delivery of reliable,
resilient and low-cost electricity to American homes and businesses.
Actions to enable more rapid deployment of electric transmission
are more important than ever. As DOE documented in its 2023 National
Transmission Needs Study, additional transmission capacity is needed in
nearly every region of the country to improve the reliability and
resilience of electric service, alleviate high costs caused by
transmission congestion and constraints that prevents low-cost energy
from reaching customers, and access new low-cost low carbon energy
supplies to serve increasing electricity demands.\1\ Over the past
decade additional transmission capacity has been added at half the rate
of the previous three decades, at a time when electricity demand is
increasing and new diverse sources of electricity generation are needed
to serve that demand and meet Federal, State, and consumer goals to
reduce greenhouse gas emissions from the electricity sector.\2\
Accelerating the current pace of transmission infrastructure investment
and deployment is needed to meet these objectives and will generate
multiple benefits to the public, including improved reliability and
resilience, lower electricity costs, additional economic activity, and
reduced greenhouse gas emissions. By enabling rapid development of
transmission capacity, the CITAP Program will help increase access to a
diversity of generation sources, reduce transmission congestion and
power-sector emissions, and deliver reliable, affordable power that
future consumers will need when and where they need it.
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\1\ United States Department of Energy, National Transmission
Needs Study (Feb. 2023), available at: <a href="https://www.energy.gov/sites/default/files/2023-02/022423-DRAFTNeedsStudyforPublicComment.pdf">https://www.energy.gov/sites/default/files/2023-02/022423-DRAFTNeedsStudyforPublicComment.pdf</a>.
\2\ Jenkins, J.D. et al. (2022) Electricity transmission is key
to unlock the full potential of the Inflation Reduction Act, Zenodo.
Available at: https://zenodo.org/record/
7106176#:~:text=Previously%2C%20REPEAT%20Project%20estimated%20that%2
0IRA%20could%20cut,from%20electric%20vehicles%2C%20heat%20pumps%2C%20
and%20other%20electrification.
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On August 23, 2023, in accordance with section 216(h) of the FPA
and a
[[Page 35313]]
May 2023 Memorandum of Understanding (MOU) among nine Federal agencies
committing to expedite the siting, permitting, and construction of
electricity transmission infrastructure through more effective
implementation of section 216(h) of the FPA, DOE issued a notice of
proposed rulemaking (NOPR), to establish the CITAP Program. (88 FR
57011).\3\ Under the CITAP Program, the entity or individual heading
the project (``project proponent'') will work with DOE and other
Federal agencies to gather materials necessary to inform the completion
of authorizations and environmental reviews. These materials include
thirteen reports the project proponent will prepare that describe the
proposed project and its potential impacts on resources including land,
water, plant and animal life (``resource reports''); a summary of the
proposed project that will include details on which Federal
authorizations or permits may be necessary and the anticipated timeline
to completion of acquiring the described authorizations and permits;
and proposed project participation and public engagement plans, which
will outline opportunities for the public to participate in project
authorization decisions and ensure sufficient engagement with both
communities of interest and relevant stakeholders. This process of
collaborative information gathering is referred to as the ``Integrated
Interagency Pre-Application Process'' or ``IIP Process.''
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\3\ The nine 2023 MOU signatory agencies are USDA, DOC, DOD,
DOE, DOI, EPA, Federal Permitting Steering Improvement Steering
Council (Permitting Council), CEQ, and the Office of Management and
Budget (OMB). The 2023 MOU is publicly available at <a href="https://www.whitehouse.gov/wp-content/uploads/2023/05/Final-Transmission-MOU-with-signatures-5-04-2023.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/05/Final-Transmission-MOU-with-signatures-5-04-2023.pdf</a>.
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Under the CITAP Program, DOE will set intermediate milestones and
ultimate deadlines for the review of relevant authorizations and
environmental reviews that provide for their completion within two
years and establish DOE as the lead agency for the preparation of a
single environmental review document, in compliance with NEPA, that
supports the decisions of all relevant Federal entities.\4\ This final
rule confirms the CITAP Program and the restructured and improved IIP
Process as described in the NOPR and adopts revisions to the NOPR
proposals in response to comments regarding issues such as the Federal
evaluation timelines, approaches to environmental reviews, and levels
of details required for the Program.
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\4\ Section 900.2 of the final rule defines ``Federal entity''
as any Federal agency or department. That section also defines
``relevant Federal entity'' as a Federal entity with jurisdictional
interests that may have an effect on a proposed electric
transmission project, that is responsible for issuing a Federal
authorization for the proposed project, that has relevant expertise
with respect to environmental and other issues pertinent to or
potentially affected by the proposed project, or that provides
funding for the proposed project. The term includes participating
agencies. The term includes a Federal entity with either permitting
or non-permitting authority; for example, those entities with which
consultation or review must be completed before a project may
commence, such as DOD for an examination of military test, training
or operational impacts.
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The IIP Process is a project-proponent-driven process. Accordingly,
the time to complete the IIP Process and begin the time bound, two-year
Federal authorization and environmental review period depends on the
preparation and responsiveness of the project proponent. This final
rule establishes a series of checkpoints in the IIP Process (the three
anchor meetings described below) and requirements for the pre-
application materials that project proponents must develop to proceed
through the Process (principally, resource reports and public
participation and engagement plans, which are to be developed with
guidance from Federal entities). The timeline for completing the pre-
application process and proceeding through these checkpoints will
depend, in large part, on the readiness and responsiveness of project
proponents. As discussed further below, DOE has revised the NOPR
proposals in this final rule to reduce the time reserved for DOE to
review and respond to the requested information within the IIP Process
to just over six months. Coupled with the two-year timeline that DOE
and signatories to the 2023 Memorandum of Understanding Regarding
Facilitating Federal Authorizations for Electric Transmission
Facilities (2023 MOU) agreed to for review of applications and related
environmental review, DOE expects that the CITAP Program will
substantially reduce the time necessary for permitting of transmission
facilities.
In response to the NOPR, DOE received 50 comments during the public
comment period, as well as stakeholder input during the public webinar
and additional briefing provided by the Grid Deployment Office in DOE
that will be administering the CITAP Program. In this final rule, DOE
is making several changes to the regulatory text proposed in the NOPR
in response to public comments.
DOE received 27 comments in support of the CITAP Program, and
several specifically supporting the IIP Process, the Federal decision-
making timeline, and the requirement for the thirteen resource reports.
Commenters specifically lauded the resource reports for their early and
meaningful public engagement components, their effectiveness in
coordinating decision-making across different Federal agencies, and
their essential role in allowing the subsequent authorization and
environmental review processes to be completed within two years.
Commenters also affirmed the need for DOE to serve as the Lead Agency
for NEPA review, section 106 of the NHPA, and section 7 of the ESA for
projects in the CITAP Program to ensure that its objective of making
transmission permitting processing more effective and efficient is
realized.
The received comments were also instrumental in identifying
opportunities to streamline the IIP Process further to ensure that
these objectives are met. The IIP Process proposed in the NOPR would
have provided, at a maximum, 240 days for DOE evaluation and
determinations of completeness and readiness to move to the next steps
in the process. In response to comments requesting more efficiency, in
this final rule that timeline has been reduced by 55 days by
streamlining notification and convening timelines to now total 185 days
at a maximum. Additional reductions to documentation timelines, which
do not impact decision making, total 45 days, reducing all IIP Process
activity by 100 days. As noted previously, however, the total timeline
to complete the IIP Process will vary in each individual case based on
the project proponent's preparation and responsiveness and the
project's readiness to proceed to Federal authorization and
environmental reviews. Project proponents will move most quickly
through the IIP Process and Federal authorization and environment
review processes by ensuring their projects are ready to proceed and by
ensuring they are responsive to DOE and Federal agency requests for
information.
Section VI of this document discusses several other major issues
raised by commenters and provides DOE's responses.
II. Background and Authority
The electric transmission system is the backbone of the United
States' electricity system, connecting electricity generators to
distributors and customers across the nation. Electric transmission
facilities often traverse long distances and cross multiple
jurisdictions, including Federal, State, Tribal, and private lands. To
receive Federal financial support or build electric transmission
facilities on or through Federal lands and waters, project
[[Page 35314]]
developers often must secure authorizations from one or multiple
Federal agencies, which can take considerable time and result in costly
delays.
Recognizing the need for increased efficiency in the authorization
process for transmission facilities, the Energy Policy Act of 2005
(Pub. L. 109-58) (EPAct) established a national policy to enhance
coordination and communication among Federal agencies with authority to
site electric transmission facilities. Section 1221(a) of EPAct added a
new section 216 to Part II of the FPA, which sets forth provisions
relevant to the siting of interstate electric transmission facilities.
Section 216(h) of the FPA, ``Coordination of Federal Authorizations for
Transmission Facilities,'' requires DOE to coordinate all Federal
authorizations and related environmental reviews needed for siting
interstate electric transmission projects, including NEPA reviews,
permits, special use authorizations, certifications, opinions, or other
approvals required under Federal law.
Among other things, it authorizes DOE to act as the lead agency for
Federal coordination and reviews and requires the Secretary of Energy,
to the maximum extent practicable under Federal law, to coordinate the
Federal authorization and review process with any Indian Tribes, multi-
state entities, and State agencies that have their own separate
permitting and environmental reviews. 16 U.S.C. 824p(h)(2)-(3).
Relatedly, section 216(h) requires the Secretary to provide an
``expeditious'' pre-application mechanism for prospective project
proponents; directs the Secretary to establish prompt and binding
intermediate milestones and ultimate deadlines for the review of, and
Federal authorization decisions relating to, the proposed facility; and
provides a mechanism through which a project proponent or any State
where the facility would be located may appeal to the President for
review, if an agency fails to act within those deadlines or denies an
application. 16 U.S.C. 824p(h)(4), (h)(6). The statute also directs the
Secretary to prepare, in consultation with the affected agencies, a
single environmental review document to be used as the basis for all
decisions on the proposed project under Federal law, and to determine,
for each Federal land use authorization that must be issued, whether
the duration of such authorization is commensurate with the facility's
anticipated use. 16 U.S.C. 824p(h)(5)(A); (h)(8)(A).
As discussed in the proposed rule, in May 2023 DOE entered into an
implementing MOU with eight other agencies to unlock these benefits.
The 2023 MOU expanded upon prior efforts to ensure pre-construction
coordination and provides updated direction to Federal agencies in
expediting the siting, permitting, and construction of electric
transmission facilities. DOE subsequently published a NOPR in August
2023 to update and expand on its existing pre-application mechanism
provided in regulations at 10 CFR part 900. Through this rule, DOE
amends its section 216(h) implementing regulations to more effectively
implement this authority and better coordinate review of Federal
authorizations for proposed interstate electric transmission
facilities.
For the reasons explained in the following sections, in this final
rule, DOE adopts its proposal in the NOPR, with modifications discussed
below.
III. Summary of the Final Rule
This final rule is needed for DOE to update its regulations
implementing section 216(h) to establish the CITAP Program, improve the
IIP Process, and provide for the coordinated review of applications for
Federal authorizations necessary to site transmission facilities. DOE's
previous implementing regulations structured the IIP Process around two
anchor meetings: the Initial and Close-Out meetings. To inform Federal
agency coordination, project proponents were required to submit a
project summary, an affected environmental resources and impacts
summary, a summary of early identification of project issues, and data
including maps and geospatial information. Additionally, the
regulations included a process for identifying the NEPA lead agency and
for establishing a preliminary NEPA review schedule. These regulations
did not establish DOE as the lead agency for NEPA review, nor address
important environmental and resource reviews under NHPA or ESA.
Notably, these regulations did not establish a process through which
DOE would set binding milestones for environmental reviews and Federal
permitting and authorization decisions.
In this final rule, DOE first establishes a comprehensive and
integrated CITAP Program. The CITAP Program is the vehicle through
which DOE will implement its authority as defined in Section 216(h) of
the FPA, beginning with the IIP Process through the DOE-led
environmental review and including DOE's coordination of the schedule
for the Federal decisions on permits and authorizations.
Under the CITAP Program, DOE: (i) provides for an effective IIP
Process to facilitate timely submission of materials necessary to
inform Federal authorizations and related environmental reviews
required under Federal law; (ii) sets intermediate milestones and
ultimate deadlines for the review of such authorizations and
environmental reviews; and (iii) serves as the lead agency for the
preparation of a single environmental review document in compliance
with NEPA, designed to serve the needs of all relevant Federal entities
and effectively inform their corresponding Federal authorization
decisions. These elements of the CITAP Program are described in more
detail throughout this rule.
Second, pursuant to the FPA, DOE makes the IIP Process a mandatory
precondition for participation in the CITAP Program. A project
proponent's participation in the IIP Process is necessary for the
success of the other elements of the CITAP Program and for the
Secretary's satisfaction of the statutory obligations imposed by
section 216(h) and affords a unique opportunity for project proponents
to provide essential information and to coordinate with Federal
entities prior to submission of applications for Federal
authorizations. DOE has determined that it will not be able to fulfill
its role as lead agency under section 216(h)--including the
establishment of binding deadlines--for projects that do not complete
the IIP Process. DOE does not require the participation of any Federal
or non-Federal entity in the IIP Process; rather Federal entities have
agreed to participate through the 2023 MOU and non-Federal entities may
participate at their discretion. As discussed further below, DOE
concludes that the benefits of participating in the IIP Process, and
the resulting access to the CITAP Program, justify the costs to project
proponents. The CITAP Program will substantially accelerate the process
by which transmission projects are permitted and developed, and the
benefits of the expected reduction in permitting timelines are likely
to significantly exceed the cost of participating in the IIP Process.
Third, this final rule improves the IIP Process to ensure that it
provides project proponents and Federal entities an opportunity to
identify as early as possible potential environmental and community
impacts associated with a proposed project. The IIP Process is intended
to ensure that necessary information is provided to the relevant
Federal entities in a timely and coordinated fashion; it is also
intended to avoid the duplication of cost and effort that project
proponents and Federal entities face in navigating the
[[Page 35315]]
series of authorizations necessary to site a transmission line and to
allow both the project proponent and the Federal entities to avoid
time- and resource-consuming pitfalls that would otherwise appear
during the application process. Accordingly, DOE requires that project
proponents submit resource reports and public participation and
engagement plans, developed with guidance from Federal entities, and
participate in a series of iterative meetings to ensure that Federal
entities have ample opportunities to provide this guidance. The
resource reports are intended to develop data and materials that will
facilitate Federal entities' review of the project proponent's
applications under the applicable Federal statutes. The early
engagement facilitated by the submission of public participation and
engagement plans will inform a project proponent's development of a
proposed project. This early engagement begins before an application is
submitted to the Federal Government and provides opportunities for
Tribes and communities to express their views early in the process and
to share their concerns directly with project proponents. However, the
IIP Process does not relieve the relevant Federal entities of their
legal obligation to comply with applicable requirements to consult with
Tribes and engage with communities. This rule provides that the total
time for DOE reviews and responses in the IIP Process is 185 days.\5\
Based on that timeline for DOE decision-making, DOE expects that a
prepared and responsive project proponent could complete the IIP
Process within a year.
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\5\ This excludes meeting information summaries, which DOE does
not categorize as review and response time that could impact a
project timeline, because preparation of required information for
subsequent IIP Process steps can happen in parallel.
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Fourth, pursuant to Congress's express directive in section
216(h)(4), DOE introduces the standard schedule and project-specific
schedules, through which DOE will establish binding intermediate
milestones and ultimate deadlines for Federal authorizations and
related environmental reviews. The standard schedule identifies the
steps generally needed to complete decisions on all Federal
environmental reviews and authorizations for a proposed electric
transmission project, including recommended timing for each step so as
to allow final decisions on all Federal authorizations within two years
of the publication of a notice of intent (NOI) to prepare an
environmental review document. This document serves as a template for
the development of project-specific schedules. During the IIP Process,
DOE and relevant Federal entities will prepare a project-specific
schedule, informed by the standard schedule, that establishes prompt
and binding intermediate milestones and ultimate deadlines for the
review of, and Federal authorization decisions relating to, a proposed
electric transmission project, accounting for relevant factors
particular to the specific proposed project, including the need for
early and meaningful consultation with potentially affected Indian
Tribes and engagement with stakeholders.
Fifth, DOE simplifies the development of an administrative record
by incorporating the IIP Process administrative file into a single
docket that contains all the information assembled and utilized by the
relevant Federal entities as the basis for Federal authorizations and
related reviews. DOE will maintain that docket, which will be available
to the public upon request except as restricted due to confidentiality
or protected information processes. Access to, and restrictions of
access to, the docket will be addressed at the time of project-specific
implementation.
Sixth, DOE amends its regulations to provide that DOE will serve as
the lead NEPA agency and that, in collaboration with any NEPA joint
lead agency \6\ determined pursuant to procedures established by these
regulations and the 2023 MOU and in coordination with the relevant
Federal entities, DOE will prepare a single environmental review
document to serve as the NEPA document for all required Federal
authorizations. DOE will also serve as lead for consultation under
section 106 of the NHPA and section 7 of the ESA for projects in the
CITAP Program, unless the relevant Federal entities designate
otherwise. As additional projects utilize the CITAP Program, DOE
anticipates that it will be able to improve upon its NEPA processes,
ultimately leading to greater efficiencies for both project proponents
and Federal agencies. Relatedly, the rule provides that DOE and the
relevant Federal entities shall issue, except where inappropriate or
inefficient, a joint decision document.
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\6\ As discussed in section V.D of this document, DOE is
replacing the term ``NEPA co-lead agency'' from the proposed
regulatory text with ``NEPA joint lead agency'' in this final rule.
The change is non-substantive. For clarity and readability, DOE uses
the term ``NEPA joint lead agency'' throughout the preamble in place
of ``NEPA co-lead agency'' even when discussing a comment or
document that originally referred to a ``NEPA co-lead agency.''
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Finally, DOE provides that the primary scope of the CITAP Program
is on-shore high-voltage or regionally or nationally significant
transmission projects that are expected to require preparation of an
environmental impact statement (EIS) and establishes procedures through
which projects outside of that primary scope can seek a determination
of qualifying-project status from the Grid Deployment Office on a case-
by-case basis.
IV. Tribal Sovereignty
DOE affirms the sovereignty of Federally recognized Indian Tribes
and confirms that this final rule makes no changes to Federal agencies'
government-to-government responsibilities. Tribal sovereignty refers to
Federally recognized Indian Tribes' original, inherent authority to
govern themselves, their lands, and their resources. Because of their
unique status as sovereigns, Federally recognized Tribes have a direct,
government-to-government relationship with the Federal government. The
United States has a general, ongoing trust relationship with Indian
Tribes as well as with the Native Hawaiian Community. Neither section
216(h) nor this final rule in any way alters that relationship.
Tribal and Native Hawaiian consultation is a process for
communication between the Federal government and Indian Tribes and the
Native Hawaiian Community that is grounded in the government-to-
government or the government-to-sovereign relationship, respectively.
Tribal and Native Hawaiian consultation may be required as part of
compliance with section 106 of the NHPA, or may arise from other
Federal authorities such as Executive Order 13007 or the Presidential
Memorandum on Uniform Standards for Tribal Consultation (2022).
Agencies often consult with Indian Tribes and the Native Hawaiian
Community in conjunction with fulfilling their obligations under NEPA.
Consistent with these requirements and authorities, during
implementation of the CITAP Program, DOE commits to undertake Tribal
and Native Hawaiian consultation as appropriate. Also as appropriate,
DOE commits to designate Indian Tribes with special expertise regarding
a qualifying project, including knowledge about sacred sites that the
project could affect, that are eligible, to become cooperating agencies
under NEPA, and to consult with Indian Tribes and Native Hawaiian
Organizations as required by the NHPA in the Section 106 process.
Finally, DOE clarifies that the IIP Process, resource reports, and
other submissions are not
[[Page 35316]]
intended to, nor will they, satisfy DOE's or other Federal agencies'
legal obligations and responsibilities under the relevant statutes,
such as NEPA, NHPA, and ESA. The Federal agencies remain legally
responsible for their compliance with the applicable statutes.
V. Terminology and Clarification Changes
In this final rule, DOE has made a number of changes to ensure
consistent use of terminology across part 900.
A. ``Project Area'' v. ``Study Corridor'' v. ``Route''
The proposed rule used several terms related to areas. In this
final rule, DOE has ensured that the usage of these terms is
consistent. DOE clarifies here their meaning and use. For the area
containing the study corridors selected by the project proponent for
in-depth consideration and the immediate surroundings of the end points
of the proposed electric transmission facility, DOE uses the term
``project area.'' For a location within a project area where multiple
transmission line designs may be contemplated, DOE used the term
``study corridor''; within the project area, there may be multiple
study corridors. Within a given study corridor, DOE refers to
``potential routes'' or ``route segments''; within the study corridor,
there may be multiple potential routes or route segments.
Notably, DOE revises the definition of project area from what was
proposed by replacing ``containing all study corridors'' with
``containing the study corridors selected by the project proponent for
in-depth consideration'' to clarify the scope of this term.
Additionally, to clarify the role of study corridors, DOE added to the
study corridors definition that ``study corridor does not necessarily
coincide with `permit area,' `area of potential effect,' `action area,'
or other defined terms that are specific to types of regulatory
review.''
The proposed rule used multiple terms to refer to a route of an
electric transmission line that is considered during the IIP Process,
including ``proposed route'' and ``potential route.'' This final rule
replaces these synonymous terms with ``potential route.''
B. ``Potential Project'' v. ``Qualifying Project'' v. ``Transmission
Facility''
The proposed rule used several terms to refer to an electric
transmission facility that is proposed to be sited and constructed,
including ``transmission facility'' and ``electric transmission
facility.'' This final rule replaces these terms with ``proposed
electric transmission facility,'' which is shortened to ``proposed
facility'' when the identity of the facility is clear from the context.
Similarly, the proposed rule included a variety of phrases to refer
to an electric transmission project, including ``qualifying project,''
``electric transmission project,'' ``proposed qualifying project,''
``proposed undertaking'' and ``project.'' This final rule replaces
these terms with ``proposed electric transmission project,'' which is
shortened to ``proposed project'' when the identity of the project is
clear from the context. While the revision replaces the defined term
``qualifying project'' in a number of instances, the revision has no
substantive effect, because any proposed electric transmission project
that is accepted into the IIP Process must involve a proposed electric
transmission facility that is a qualifying project.
C. ``Plants'' v. ``Vegetation''
The proposed rule used several terms to describe plant life, such
as ``plant life,'' ``plants'' and ``vegetation.'' DOE has revised this
final rule to consistently use the term ``plants,'' except where the
rule uses an established term of art such as ``vegetation management''
or for consistency with Resource Report naming across agencies.
D. ``NEPA Co-Lead Agency'' vs ``NEPA Joint Lead Agency''
The proposed rule used the term ``NEPA co-lead agency'' to refer to
a Federal entity that may be designated under Sec. 900.11 to share the
responsibilities of DOE as lead agency in preparing an environmental
review document. DOE has revised the final rule to replace that term
with ``NEPA joint lead agency'' to better conform with the terminology
used in NEPA, as amended by Section 321 of the Fiscal Responsibility
Act of 2023 (Pub. L. 118-5). The change is non-substantive and only
reflects a difference in terminology.
VI. Discussion of Comments
A. General
In response to the NOPR, DOE received 50 sets of comments from the
following persons and groups:
Advanced Energy United (AEU), Alan Leiserson, American Clean Power
Association (ACP), American Council on Renewable Energy (ACORE),
American Electric Power Service Corporation (AEP), Americans for a
Clean Energy Grid (ACEG), Arizona Game and Fish Department (AZGFD),
Arizona State Historic Preservation Office (Arizona SHPO), California
Energy Commission and California Public Utilities Commission (CEC/
CPUC), Center for Biological Diversity (CBD), Clean Air Task Force
(CATF), Clean Energy Buyers Association (CEBA), ClearPath, Colorado
Governor's Office, Conrad Ko, Conservation and Renewable Energy
Coalition (CARE--comprised of the National Wildlife Federation, The
National Audubon Society, Environmental Law and Policy Center, and The
Nature Conservancy), Delaware Division of Historical and Cultural
Affairs (Delaware SHPO), EarthGrid PBC, Edison Electric Institute
(EEI), Environmental Defense Fund (EDF), Gallatin Power Partners, LLC
(Gallatin Power), Grid United LLC (Grid United), Idaho Governor's
Office of Energy and Mineral Resources, Idaho Power, James Birdwell,
Kentucky SHPO, Kris Pastoriza, Land Trust Alliance (LTA), Large Public
Power Council, Los Angeles Department of Water and Power (LADWP), mkron
mkron, National Association of Manufacturers, National Association of
Tribal Historic Preservation Officers (NATHPO), New Mexico Department
of Cultural Affairs Historic Preservation Division (NM SHPO), New York
Transmission Owners (NYTO), New York University School of Law Institute
for Policy Integrity (Policy Integrity), Niskanen Center, Oceti Sakowin
Power Authority (OSPA), Pew Charitable Trusts, PJM Interconnection, LLC
(PJM), Public Interest Organizations (PIOs, comprised of Earthjustice,
Natural Resources Defense Council, NW Energy Coalition, Southern
Environmental Law Center, Sustainable FERC Project, and WeACT for
Environmental Justice) (PIO), Santa Rosa Rancheria Tachi Yokut Tribe,
Scott Cooley, Solar Energy Industries Association (SEIA), State of
Colorado Governor's Office, State of Idaho Energy Office, Stoel Rives,
LLP, StopPATH WV, Todd Simmons, VEIR, Inc, and an anonymous commenter.
Of the 50 comments, 27 expressed general support for the proposed
rule and many supported specific aspects, including the IIP Process,
the Federal decision-making timelines, and the requirement for the
thirteen resource reports.\7\ Commenters specifically
[[Page 35317]]
lauded the resource reports for their early and meaningful public
engagement components, their effectiveness in coordinating decision-
making across different Federal agencies, and their essential role in
streamlining environmental permitting processes to two years.
---------------------------------------------------------------------------
\7\ Advanced Energy United; American Clean Power Association;
American Council on Renewable Energy; American Electric Power
Service Corporation; American Electric Power Service Corporation;
Americans for a Clean Energy Grid; Arizona Game and Fish Department;
California Energy Commission joint with California Public Utilities
Commission; Clean Air Task Force; Clean Energy Buyers Association;
Colorado Energy Office; Conrad Ko; Delaware State Historic
Preservation Office; Edison Electric Institute; Environmental
Defense Funds; Gallatin Power Partners, LLC; Grid United, LLC; New
York Transmission Owners; Niskanen Center; PJM Interconnection,
L.L.C.; Public Interest Organizations; Scott Cooley; Solar Energy
Industries Association; State of Idaho; Stoel Rives; The Pew
Charitable Trusts; and Todd Simmons.
---------------------------------------------------------------------------
Six commenters, NATHPO, Santa Rosa Rancheria Tachi Yokut Tribe,
StopPath WV, James Birdwell, ClearPath, and mkron mkron were not
supportive of the rulemaking.
The comments and DOE's responses are discussed in detail in the
subsequent subsections.
B. Purpose and Scope of Rule
DOE's Proposal
In the NOPR, DOE proposed to establish the CITAP Program; made the
IIP Process a mandatory precondition to participate in the CITAP
Program; described the procedures and timing of the IIP Process;
provided a process to set deadlines and milestones for projects;
designated DOE as the lead NEPA agency for the purposes of preparing a
single environmental impact statement; provided for earlier
coordination of and consultation between relevant Federal entities,
relevant non-Federal entities, and others pursuant to section 106 of
the NHPA; designated DOE as a co-lead agency for the section 106
process; and clarified applicability to qualifying projects. Finally,
DOE proposed to include a provision stating that participation in the
IIP Process does not alter any requirements to obtain necessary Federal
authorizations for electric transmission facilities nor does it alter
any responsibilities of the relevant Federal entities for environmental
review or consultation under applicable law.
Summary of Public Comments
DOE received several comments regarding DOE's authority to
establish the CITAP Program, the ability of the proposed CITAP Program
to meet the goals established by Congress in EPAct 2005, and the scope
of the proposed CITAP Program.
Regarding DOE's authority to establish the CITAP Program, EDF,
PIOs, and CATF observed that the CITAP Program is consistent with the
statutory language of section 216(h) of the FPA and with the 2023 MOU.
Pew Charitable Trusts expressed their support for several key elements
of the proposed rule, including the creation of a new framework for
coordinated Federal authorizations.
PIOs commented that DOE's proposed rule appropriately effectuates
the congressional intent underlying section 216(h) of the FPA, and that
DOE has sufficiently explained its proposed changes in the rule text by
demonstrating awareness of changing its policies and providing sound
reasons for doing so. PIOs also noted that although agencies do not
need to demonstrate that the reasons for the new policies are better
than the reasons for the old policies, they believed DOE has done so in
the proposed rule. On the other hand, NATHPO and the Santa Rosa
Rancheria Tachi Yokut Tribe requested that DOE withdraw the proposed
rule. NATHPO and the Santa Rosa Rancheria Tachi Yokut Tribe found the
proposed rule ``opaque'' and stated that they were unable to determine
if the rule represented a threat to Tribal Nations' cultural resources
and sacred places. Additionally, NATHPO and the Santa Rosa Rancheria
Tachi Yokut Tribe objected to the rule on the grounds that it contained
``numerous fundamental flaws,'' but only provided two examples, one
concerning the Communities of Interest report and one concerning the
Tribal Interests report. Specifically, regarding Communities of
Interest, the commenters expressed concern not with the proposed rule
text, but with a comment from DOE staff which the commenters believed
indicated this resource report would fulfill NHPA ``Section 106
responsibilities for determining the impact of projects on Tribal
Nations' cultural resources and sacred places.'' Regarding Resource
Report 13, the commenters expressed concerns with a comment from DOE
staff which the commenters believe indicated, contrary to the proposed
rule text, that this resource report would not include ``the effect of
projects on Tribal Nations' cultural resources.'' These concerns are
discussed in further detail and addressed in sections VI.J and
VI.L.xiii of this document. Finally, NATHPO and the Santa Rosa
Rancheria Tachi Yokut Tribe argued that DOE did not effectively engage
with Tribal Historic Preservation Officers (THPOs) while drafting the
proposed rule.
Regarding the ability of the proposed CITAP Program to meet the
stated goals of coordinating Federal authorizations and completing
environmental review within a 2-year schedule, PIOs stated they believe
the proposed rule will improve efficiency in Federal permitting for
transmission projects that are urgently needed to address the climate
crisis, improve reliability, and reduce congestion, and that the rule
will accelerate the development of infrastructure that will provide the
foundation for a clean and equitable energy grid. Pew Charitable Trusts
stated that it believes that the proposed rule offers an appropriately
streamlined approach to coordinating and facilitating transmission
project authorizations. Pew Charitable Trusts further noted that
previous studies of various types of infrastructure projects and
environmental reviews suggest that an open, transparent, and
comprehensive review process can work to the benefit of the public and
developers. Pew Charitable Trusts supported that the schedule can be
altered by DOE depending on the complexity of the review and other
factors. ACEG recommended adding ``prompt and binding'' to describe the
milestones and deadlines DOE will set in the schedule for Federal
decision-making. The State of Idaho agreed that Federal efforts to
reduce the time required for transmission project developers to receive
decisions on Federal authorizations are needed and agreed that such
actions should be encouraged. However, it also cautioned that those
efforts should be implemented in a way that avoids diminishing the
benefits of such reform by the addition of new permitting processes or
requirements. In contrast, StopPATH WV asked why the NOPR was written
in a way that presumes project approval, expressed concern that it was
not clear how this rulemaking would speed up timelines, and asserted
that if agencies could not change the project or deny it, then this
would be a bureaucratic waste of time. Kris Pastoriza requested
clarification on how the CITAP Program would change the jurisdiction of
the Federal Energy Regulatory Commission (FERC).
Regarding DOE's role as a lead agency for environmental review and
preparation of a single EIS, DOE received several comments in support
of the role and the consistency of this designation with existing
regulations and legislation. EDF commented that the rule is consistent
with Section 107 of the Fiscal Responsibility Act of 2023, which
amended NEPA to require the designation of a lead agency to coordinate
and schedule environmental review, as well as the related amendments to
NEPA implementing regulations proposed by the Council for Environmental
Quality. AEP, SEIA, Pew Charitable Trusts, EEI, and CEBA each
[[Page 35318]]
commented in support of DOE serving as the lead agency for developing a
single environmental review document. SEIA noted that currently a lack
of coordination among agencies causes unpredictability and inefficiency
in the environmental review process and effective coordination will
provide a more predictable and efficient process, a reduction in
unnecessary delays and costs, and heightened allowance for more robust
environmental reviews. ACEG recommended replacing the phrase
``environmental impact statement'' with ``NEPA document'' because that
phrasing more closely matches the statutory language in section
216(h)(5)(A) and because it accounts for the breadth of reviews
organized under the CITAP Program. EEI recommended that DOE must also
rely on the expertise of Federal agencies to ensure certainty and
minimize risk of post record decision litigation.
Regarding the authority of the Director of the Grid Deployment
Office to waive requirements, PIOs recommended establishing specific,
transparent criteria by which the Director of the Grid Deployment
Office can waive the review requirements for a proposed project that
are deemed unnecessary, duplicative, or impracticable and further
argued for the establishment of an appeal process for said waivers.
PIOs further provided that if DOE declines to implement criteria and an
appeals process that this final rule should eliminate the waiver
provision.
DOE Response
In this final rule, DOE retains the proposal in the NOPR to
establish the CITAP Program, which requires the IIP Process for CITAP
Program participation, sets binding schedules for Federal decision
making, and through which DOE will serve as lead agency for
environmental review and document preparation. In response to comments,
DOE makes minor changes to this final rule for clarification but
retains the full intent and scope of the proposed rule.
With respect to NATHPO's comment regarding outreach, DOE believes
that it engaged with appropriate entities regarding the rulemaking. DOE
met with the Advisory Council for Historic Preservation in developing
the language of the proposed rule and specifically with respect to
addressing potential impacts on cultural resources and consistency of
the CITAP Program with the requirements of the NHPA. Further, DOE
developed the NOPR with substantive engagement from other Federal
entities through the interagency review process. DOE then provided a
45-day public comment period during which DOE noticed and provided a
public webinar open to anyone to attend, and organized briefings with
interested groups to introduce the proposed rule and listen to
comments, to which NATHPO, THPOs, and State Historical Preservation
Officers (SHPOs) were invited. In this final rule, DOE has made changes
to provide additional clarity in the rule text and resolve ambiguity
when possible. In particular, DOE clarifies certain issues relating to
Tribal sovereignty, cultural resources, and the section 106 process in
response to specific concerns raised by NATHPO, Santa Rosa Rancheria
Tachi Yokut Tribe, and other commenters.
In response to the State of Idaho's concerns and Kris Pastoriza's
question regarding DOE implementing its coordinating authority, this
final rule neither establishes new permitting requirements nor alters
FERC's siting authority over transmission lines. Rather, DOE will be
coordinating agencies' exercise of their existing authorities. This
final rule maintains the NOPR provision that the IIP Process does not
alter any requirements to obtain necessary Federal or non-Federal
authorizations for electric transmission facilities. Similarly, DOE
disagrees with the assertion that the proposed rule presumes project
approval. The CITAP Program as described in the proposed rule and
confirmed in this final rule coordinates and sets a schedule for
Federal decision-making for qualified projects; it does not presume or
require the outcome of such Federal decisions. Regarding DOE's schedule
setting role in the CITAP Program, DOE agrees with ACEG's
recommendation to align the language of this final rule with the
authorizing statute and includes ``prompt and binding'' in the
description of milestones in this final rule.
Regarding DOE serving as lead agency for environmental review and
development of a single EIS designed to serve the needs of all relevant
Federal agencies and inform all Federal authorization decisions on the
proposed qualifying project, DOE acknowledges that it will rely on
other Federal agencies' expertise and believes the CITAP Program and
IIP Process confirmed in this final rule will ensure this occurs. DOE
agrees with ACEG's recommendation to align the language with the
authorizing statute and changes ``EIS'' to ``environmental review
document'' throughout this final rule.
DOE makes no changes to the proposal to allow the Director of the
Grid Deployment Office to waive requirements of the CITAP Program, nor
does DOE adopt specific criteria for such waivers. The purpose of the
CITAP Program and IIP Process is to allow DOE to perform a coordinating
function for electric transmission facilities seeking Federal
authorizations. Giving the Director the discretion to waive
requirements of the CITAP Program helps ensure that this coordination
function promotes efficiency and reduces duplication, as Congress
intended in FPA section 216(h). In addition, it is important to note
that a waiver granted by the Director under the CITAP Program would not
waive Federal requirements for authorizations or permits. For these
reasons, DOE is not persuaded that a lack of specific criteria for
waivers in this final rule will substantively harm any entity or party.
C. Qualifying Projects
DOE's Proposal
Section 216(h) of the FPA authorizes DOE to perform its
coordinating function for all transmission facilities seeking Federal
authorizations. In the NOPR, DOE proposed to prioritize the subset of
these facilities that benefit the most from DOE's coordinating role and
provide the most benefits to the American public from expeditious
environmental review.
In the NOPR, DOE proposed to define the subset of proposed electric
transmission facilities for which to perform its coordinating
function--called ``qualifying projects''--by defining two types of
qualification: qualification by attribute and qualification by request.
For qualification by attribute (set out in paragraph (1) of the
proposed definition of ``qualifying project''), DOE proposed in the
NOPR to categorize a proposed electric transmission facility as a
``qualifying project'' based on the presence of certain enumerated
attributes: it must be high-voltage (defined as 230 kV or above) or
``regionally or nationally significant''; it will be used for the
transmission of electric energy in interstate or international commerce
for sale at wholesale; it will need one or more Federal authorizations
expected to require preparation of an environmental impact statement
(EIS) pursuant to NEPA; it will not require authorization under section
8(p) of the Outer Continental Shelf Lands Act; the developer will not
require a construction or modification permit from FERC pursuant to
section 216(b) of the FPA; and the proposed transmission facility will
not be wholly located within the Electric Reliability Council of Texas
interconnection.
[[Page 35319]]
DOE proposed that, if a proposed electric transmission facility did
not qualify for the CITAP Program by attribute it could still qualify
by request, as provided by paragraph (2) of the proposed definition of
qualifying project and under the process set out in proposed Sec.
900.3 of the NOPR. Under that process, DOE proposed that the project
proponent file a request for coordination under the CITAP Program with
the Director of the Grid Deployment Office. Then, the Director of the
Grid Deployment Office, in consultation with the relevant Federal
entities, determine, within 30 calendar days of receipt of the request,
whether the proposed electric transmission facility is a ``qualifying
project.'' In the NOPR, DOE proposed that proposed electric
transmission facilities requiring a permit from FERC could be
qualifying projects if the request came from the FERC Chair. DOE also
proposed that projects proposed for authorization under section 8(p) of
the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.)
independent of any generation project may be qualifying projects at the
discretion of MOU signatory agencies.
DOE proposed to exclude from both types of qualification, and from
the CITAP Program altogether, any project proposed to be authorized
under section 8(p) of the Outer Continental Shelf Lands Act in
conjunction with a generation project and any project for which the
proposed transmission facility is wholly located within the Electric
Reliability Council of Texas interconnection.
Summary of Public Comments
DOE received several comments on the proposed definition of
``qualifying project.''
Starting with the qualification by attribute in paragraph (1) of
the definition, DOE received several comments on the specific proposed
attributes. Both AEP and Niskanen Center supported the proposed high-
voltage threshold of 230 kV or above. On the other hand, CEC/CPUC
opposed limiting eligibility based on a voltage threshold and instead
suggest expanding eligibility to proposed electric transmission
facilities at any voltage level.
With regard to DOE's proposal for qualification by attribute to
require that a proposed electric transmission facility that does not
satisfy the voltage threshold must be ``regionally or nationally
significant,'' both Niskanen Center and ClearPath asserted that this
alternative criterion is ambiguous. ClearPath recommended removing the
alternative criterion altogether and only allowing for high-voltage
transmission lines (i.e., those that satisfy the 230 kV or above
threshold) to be ``qualifying projects.'' Niskanen Center recommended
instead that DOE adopt factors that it will consider when determining
whether a proposed transmission facility is ``regionally or nationally
significant.'' Specifically, Niskanen Center suggested these factors:
``(i) a reduction in the congestion costs for generating and delivering
energy; (ii) a mitigation of weather and variable generation
uncertainty; (iii) an enhanced diversity of supply; (iv) any reduced or
avoided carbon emissions from the increased use of clean energy; and
(v) an increased market liquidity and competition.''
Moving to the other attributes, CEC/CPUC asked DOE to clarify how
it will determine whether all or part of a proposed electric
transmission facility will be ``used for the transmission of electric
energy in interstate or international commerce for sale at wholesale.''
Further, CEC/CPUC recommended that DOE expand the attribute list to
include a proposed electric transmission facility that will be used in
intrastate commerce because, according to CEC/CPUC, intrastate
transmission lines can traverse lands managed by several Federal
agencies, such that DOE coordination under the CITAP Program would
provide benefits to these projects as well. In the alternative, CEC/
CPUC asked that DOE clarify how a proposed intrastate transmission
facility, such as an onshore, intrastate transmission facility built to
support offshore wind development, that traverses Federal lands, could
be a ``qualifying project.''
On the proposed attribute that the proposed electric transmission
facility would need one or more Federal authorizations that require
preparation of an EIS pursuant to NEPA, AEP supported the proposal
whereas Niskanen Center and PIOs recommended expanding the proposal to
include proposed electric transmission facilities for which preparation
of either an environmental assessment (EA) or an EIS is anticipated.
PIOs also encouraged DOE to define which proposed electric transmission
facilities are ``expected'' to require preparation of an EIS and which
are expected to require preparation of an EA. In support of the
recommendation to expand eligibility to include proposed electric
transmission facilities for which preparation of an EA is expected (in
addition to those for which preparation of an EIS is expected), PIOs
argued that FERC regulations only require preparation of an EA for
proposed electric transmission facilities sited within an existing
right-of-way. If DOE adopts the proposal without PIOs' recommended
expansion, PIOs explained that such proposed electric transmission
facilities may be excluded from the CITAP Program, resulting in the
CITAP Program not providing its full purported benefits. Similar to
Niskanen Center and PIOs, CEC/CPUC recommended that DOE expand the
definition of ``qualifying project'' such that any proposed electric
transmission facility for which multiple Federal agency approvals will
be required are eligible, regardless of what type of document is
required under NEPA.
On qualification by request--i.e., when a project proponent seeks
qualifying-project status through a request to the Director of the Grid
Deployment Office--several commenters expressed concern about DOE's
level of discretion in the proposal. EEI requested examples of the
types of proposed electric transmission facilities that may be deemed
``qualifying projects'' by request. PIOs argued that the proposal
appears to be wholly discretionary, making it difficult for project
proponents, relevant regulators, and members of the public to
understand what proposed electric transmission facilities may be
eligible to participate in the CITAP Program. PIOs suggested that DOE
establish criteria for how DOE will evaluate requests, which would
assist project proponents in making well-grounded requests for
participation in the CITAP Program. According to PIOs, these criteria
should be: if the proposed electric transmission facility will benefit
from DOE's coordination in terms of expeditious authorizations; if
DOE's coordination will provide benefits that exceed the costs; and, if
Federal and non-Federal regulators have sufficient resources to
dedicate to the project's participation in the CITAP Program. PIOs also
suggested that DOE require project proponents to explain what portions
of their proposed electric transmission facility do not meet the
``qualifying project'' definition (i.e., the attributes) and how the
CITAP Program will facilitate Federal authorizations for the project or
be otherwise beneficial. Further, PIOs recommended that DOE adopt a
requirement that the Director of the Grid Deployment Office explain in
writing the determination of whether a project is deemed a ``qualifying
project'' by request. PIOs also recommended that if DOE rejects a
request to participate in the CITAP Program, project proponents should
be allowed to appeal the
[[Page 35320]]
decision to the Secretary of Energy. Similarly, ACP commented that the
proposed rule lacked clarity regarding what can qualify as an ``other
project'' and recommended that DOE provide further detail on the
aspects which it will consider when making this determination.
As proposed, qualification by request included a limitation in
Sec. 900.3(d): for a proposed electric transmission facility seeking a
permit from FERC pursuant to section 216(b) of the Federal Power Act,
DOE may only consider a request for coordination if the requestor is
FERC acting through its chair. ACORE recommended that DOE provide more
detailed guidance for this category of proposed electric transmission
facilities and for DOE to authorize relevant project proponents to
submit a petition requesting such a request from the FERC Chair.
Likewise, CEBA urged DOE to clarify the relationship between the
section 216(b) and section 216(h) processes and to explain how the FERC
Chair can request that a proposed electric transmission facility be
eligible to participate in the CITAP Program under section 216(h). Both
qualification by attribute and qualification by request included
limitations related to offshore transmission facilities. For
qualification by attribute, one listed attribute provided that the
proposed electric transmission facility would not require authorization
under section 8(p) of the Outer Continental Shelf Lands Act. Likewise,
for qualification by request, DOE proposed to exclude electric
transmission facilities proposed to be authorized under section 8(p) of
the Outer Continental Shelf Lands Act in conjunction with a generation
project. However, projects proposed to be authorized under section 8(p)
of the Outer Continental Shelf Lands Act could be allowed at the
discretion of the MOU signatory agencies (as defined in the proposed
rule) if the proposed offshore transmission facility is independent of
any generation project.
A number of commenters expressed concerns regarding DOE's treatment
of proposed offshore transmission facilities. Broadly, ACP, ACORE, and
PIOs contended that DOE must explain why the limitations on offshore
transmission facilities are included and how the CITAP Program will
apply to offshore transmission facilities in practice. ACP and ACORE
suggested that DOE establish a process to allow potential State-
proposed transmission facilities to participate in the CITAP Program
before a project developer is selected and include a process to enable
the Bureau of Ocean Energy Management or a State to engage or request
that a project participate in the CITAP Program.
More specific to DOE's proposal, NYTOs opposed the offshore
transmission facility-related attribute, asserting that its inclusion
prevents proposed offshore transmission facilities from benefiting from
the CITAP Program for project sections located closer to shore as well
as for project sections that fall under the scope of the Outer
Continental Shelf Lands Act. PIOs suggested removing the limitations in
qualification by request and instead allowing for proposed offshore
transmission facilities to take advantage of the CITAP Program without
the approval of the MOU signatories. At a minimum, PIOs suggested
removing the limitation that proposed offshore transmission facilities
tied to generation projects cannot participate in the CITAP Program.
Moreover, both PIOs and ACORE requested that DOE revise its proposal
from requiring agreement from all MOU signatories and instead only
requiring agreement from relevant MOU signatories participating in the
environmental review or authorization.
Finally, other commenters proposed revisions to DOE's proposed
definition of ``qualifying project'' based on advanced transmission
technologies and undergrounding. VEIR recommended that DOE include
superconductors in its definition of ``qualifying projects'' because,
according to VEIR, a superconductor can transfer more power at lower
voltages than qualifying high-voltage transmission lines. EarthGrid
asserted that underground transmission projects should be considered as
a distinct category. And CBD suggested that DOE require that a proposed
electric transmission facility be strictly necessary and that non-
transmission alternatives could not adequately address the issue
addressed by the proposed electric transmission facility before
allowing the project to participate in the CITAP Program.
DOE Response
In this final rule, DOE retains the proposal in the NOPR to provide
two types of qualification (qualification by attribute and
qualification by request) for proposed electric transmission facilities
to be ``qualifying projects.'' In response to commenters, DOE is making
the following revisions to the details of those two types of
qualification.
First, consistent with commenters' suggestions, DOE has adopted
factors that DOE may consider when determining that a proposed electric
transmission facility is a qualifying project. For qualification by
attribute, this final rule includes factors that DOE may consider when
assessing if a proposed electric transmission facility is regionally or
nationally significant. Similarly, for qualification by request, this
final rule includes factors that DOE may consider when assessing if a
proposed electric transmission facility is a qualifying project.
Second, this final rule removes the requirement that projects seeking a
permit from FERC under FPA section 216(b) may only be accepted into the
CITAP Program if requested by FERC acting through its chair and states
that the coordination between FERC and DOE on projects seeking permits
under FPA section 216(b) will be consistent with the relevant
delegation order governing DOE's coordination authority under FPA
section 216(h), which may change from time to time. Third, this final
rule also states that if DOE does not determine that a project is
qualifying project, DOE will provide the reasons for its finding in
writing.
DOE believes that the definition of ``qualifying project'' adopted
in this final rule appropriately balances the value of focusing DOE's
resources on those proposed electric transmission facilities for which
Federal coordination will be most impactful with the aims of the broad
grant of authority to DOE under FPA section 216(h). By initially
limiting the definition of ``qualifying project'' to those proposed
electric transmission facilities that qualify by attribute, i.e., those
that are high-voltage or regionally or nationally significant and that
possess the other listed attributes, DOE is targeting for Federal
coordination those complex proposed electric transmission facilities
that will reap the greatest benefits from the CITAP Program. DOE
believes that these proposed electric transmission facilities are also
likely to provide substantial benefits to consumers in the form of
congestion relief, emissions reductions, and increased reliability and
resilience, among other benefits, to ensure reliable, affordable power
can be delivered to consumers when and where they need it.
Qualification by request provides DOE with additional flexibility to
consider whether projects that do not meet the targeted attributes may
be appropriate for participation in the CITAP Program as well,
consistent with DOE's authority under section 216(h) to coordinate for
all transmission facilities seeking Federal authorizations.
As for specific aspects of the NOPR proposal, starting with
qualification by attribute and the voltage threshold therein (i.e.,
proposed electric transmission facilities must be 230 kV or above), DOE
declines to adopt the suggestion by CEC/CPUC to expand
[[Page 35321]]
eligibility to proposed transmission facilities at any voltage level.
Such an expansion, although permissible by the statute, would not be
the most effective use of DOE's authority because it would likely
result in DOE providing coordination for proposed transmission
facilities that would benefit less from the program. For example, DOE
could be obligated to provide coordination for less complex proposed
electric transmission facilities for which there is a low risk of
protracted Federal authorization and review timelines and thereby have
fewer resources to dedicate to those transmission facilities with more
complex permitting requirements and/or more Federal authorizations and
thus more risk of protracted review timelines in the absence of DOE
coordination. Nonetheless, DOE acknowledges that voltage alone does not
determine complexity nor whether the proposed transmission facility may
benefit from participation in the CITAP Program. That is why this final
rule provides multiple avenues for lower-voltage proposed transmission
facilities to be ``qualifying projects,'' whether because they are
``regionally or nationally significant'' or because they are determined
to be qualifying projects by request to the Director of the Grid
Deployment Office, on a case-by-case basis. In addition, satisfying the
high-voltage threshold alone does not make a proposed transmission
facility a ``qualifying project;'' it still must demonstrate the
attributes listed in this final rule.
As for the alternative criterion under qualification by attribute--
whether the proposed transmission facility is ``regionally or
nationally significant''--DOE declines to remove this criterion but
agrees that the proposal was ambiguous and therefore adopts clarifying
revisions in this final rule. DOE believes that this alternative to the
voltage threshold is important to ensure that lower-voltage
transmission facilities that may benefit from participation in the
CITAP Program have an avenue to be ``qualifying projects,'' as
explained in the prior paragraph. Nevertheless, DOE appreciates
commenters' requests for greater transparency and thus adopts factors
to guide DOE's determination whether a proposed transmission facility
is ``regionally or nationally significant.''
In particular, DOE adopts regulations in this final rule that
provide that, in determining whether a proposed transmission facility
is ``regionally or nationally significant,'' DOE will consider whether
a proposed transmission facility will reduce congestion costs, mitigate
uncertainty, and enhance supply diversity. These factors are consistent
with the overarching goals of focusing the CITAP Program on proposed
transmission facilities for which DOE's coordination will be most
impactful. The adopted regulations provide that DOE may consider other
factors as well. This discretion is important to ensure that DOE has
flexibility to best use its resources to provide Federal coordination
where consistent with the goals of the CITAP Program and available
resources. As explained in DOE's 2023 Needs Study, transmission
infrastructure improvements can benefit consumers by improving grid
reliability, resource adequacy, and resilience of the power system, as
well as reducing congestion and losses and enabling access to clean,
diverse energy supply. While transmission that addresses unnecessarily
high costs to consumers may be regionally or nationally significant, so
too may be transmission that reduces the vulnerability of the electric
system to disruptive events, which risk high costs and service
interruptions. The benefits of transmission also extend beyond the
power system--to increased employment, tax revenues, and other economic
development benefits. These benefits are all relevant to DOE's
determination of whether a transmission line is ``regionally or
nationally significant.''
Although Niskanen Center suggested two additional factors for DOE
to list as part of its determination as to whether a proposed electric
transmission facility is ``regionally or nationally significant''
beyond those adopted herein (specifically focused on reduced or avoided
carbon emissions and increased market liquidity and competition from
the proposed electric transmission facility), DOE declines to adopt
additional factors. For one, project proponents are unlikely to have
substantial information at the stage of development recommended for
initiation of the IIP Process for DOE to evaluate vis-[agrave]-vis
these recommended factors. If such information is available, though,
DOE may nevertheless consider it because, as explained above, DOE is
maintaining discretion to consider other factors as part of its
assessment of whether a proposed transmission facility is ``regionally
or national significant.''
As for the proposed attribute concerning whether all or part of a
proposed transmission facility will be ``used for the transmission of
electric energy in interstate or international commerce for sale at
wholesale,'' DOE declines to provide further clarification in this
final rule because this determination will be made based on the facts
and circumstances of the proposed electric transmission facility
seeking DOE coordination at the time of application. DOE expects that
this determination will be informed by relevant precedent interpreting
similar language in other provisions of the FPA, though DOE is not
bound by that precedent in interpreting its own regulatory language.
DOE declines to expand the listed attributes of a qualifying
proposed electric transmission facility to also include intrastate
transmission facilities. As previously explained, DOE's intent in
defining a subset of electric transmission facilities for which DOE
will conduct Federal coordination is to focus on where the CITAP
Program is likely to be most impactful. While intrastate transmission
facilities can have significant benefits, they are generally less
likely to be the types of facilities that DOE expects will reap the
greatest benefits from DOE's coordination or that would provide the
greatest benefits to consumers as a result of more efficient permitting
of critical transmission infrastructure. Nonetheless, DOE does not
prohibit proponents of intrastate transmission facilities (e.g., high-
voltage intrastate transmission facilities that may require multiple
Federal authorizations) from seeking qualification by request.
Regarding the proposed attribute that a proposed electric
transmission facility would need one or more Federal authorizations
that require preparation of an EIS pursuant to NEPA, DOE declines to
make the changes suggested by Niskanen Center, PIOs, and CEC/CPUC. As
explained above, DOE is aiming to identify as ``qualifying projects''
those proposed electric transmission facilities for which DOE
coordination under the CITAP Program is likely to be most impactful and
to yield the greatest benefits for consumers. DOE believes that
focusing on proposed electric transmission facilities for which
preparation of an EIS is expected is an appropriate factor for
narrowing the list of potential electric transmission facilities for
DOE coordination because an EIS is typically needed for more complex
projects. Preparation of an EIS is also a longer, more involved process
and one that poses a greater risk of delays absent interagency
coordination. Note that, although qualification by attribute is limited
to those for which an EIS is likely required, qualification by request
does not have this limitation, such that a project proponent is
permitted to request DOE coordination even if an EIS
[[Page 35322]]
is not expected and seek a determination from the Director of the Grid
Deployment Office on eligibility for the CITAP Program. As for the
request that DOE define which proposed transmission facilities are
expected to require an EIS, DOE declines to do so in this final rule.
DOE and its fellow agencies will apply NEPA and its implementing
regulations and will follow applicable regulations pursuant to NEPA, as
will other relevant Federal agencies, to determine whether an EIS needs
to be prepared, and those same regulations will inform any expectations
as to whether an EIS is likely to be required.
Regarding qualification by request, DOE agrees with commenters that
criteria regarding the types of proposed electric transmission
facilities that may be deemed ``qualifying projects'' under this
process would be beneficial to project proponents, and ultimately to
DOE in identifying the subset of projects that best suit the CITAP
Program's goals. Consequently, DOE adopts criteria in this final rule
that the Director of the Grid Deployment Office may consider when
evaluating a request to determine whether a proposed electric
transmission facility is a ``qualifying project.'' DOE will consider
whether a proposed electric transmission facility will benefit from
coordination under the CITAP program, reduce congestion costs, mitigate
uncertainty, and enhance supply diversity. These factors are consistent
with the overarching goals of focusing the CITAP Program on proposed
electric transmission facilities for which DOE's coordination will be
most impactful, to the ultimate benefit of consumers via reduced
congestion and enhanced reliability and resilience, among other
benefits. DOE believes the remaining discretion for DOE to determine
which proposed electric transmission facilities are ``qualifying
projects'' is consistent with the statutory framework that permits DOE
to coordinate the Federal authorizations necessary for any transmission
facility and the aim of the section 216(h) itself, notably the timely
permitting of transmission projects.
DOE agrees that it should explain its determinations of whether
qualification by request is granted in writing and consequently
establishes a requirement for such an explanation in this final rule.
DOE makes no revisions in response to the suggestion that an
appeals process be incorporated into the rule text for non-qualifying
projects. DOE notes that any project not accepted under qualification
by attribute may seek qualification by request of the Director of the
Grid Deployment Office, and that this final rule does not disallow
projects from resubmitting materials.
Turning to the proposed limitation to qualification by request for
a proposed electric transmission facility seeking a permit from FERC
pursuant to section 216(b) of the FPA, which stated that DOE may only
consider a request for coordination if the requestor is FERC acting
through its chair, DOE revises its proposal in this final rule to
clarify that the request for Federal coordination for proposed
transmission facilities seeking a permit from FERC under section 216(b)
must be consistent with Delegation Order No. 1-DEL-FERC-2006 or any
similar, subsequent delegation to FERC, which depend on the mutual and
continuing agreement of both agencies. With respect to CEBA and ACORE's
requests for more detail on the procedures for the FERC Chair to
request that a proposed electric transmission facility be eligible to
participate in the CITAP Program, such procedures will depend on the
state of any delegations of DOE's authority under FPA section 216(h);
therefore, DOE finds that clarifying these procedures is best done
through guidance outside the rulemaking process. Similarly, with
respect to ACORE's request to be able to submit a petition for the FERC
Chair to request DOE to consider a request for assistance under the
proposed section, the removal of that section in this final rule
obviates the need for such a process to be established by DOE and the
establishment of any processes at FERC are outside the scope of this
rulemaking.
With respect to the treatment of offshore transmission facilities,
commenters expressed concerns with the limitations related to offshore
transmission facilities and sought further explanation, at a minimum.
DOE adopts the proposal to exclude transmission facilities proposed to
be authorized under section 8(p) of the Outer Continental Shelf Lands
Act in conjunction with a generation project. DOE and the 2023 MOU
signatories determined that offshore transmission facilities connected
to generation projects should not be eligible for participation in the
CITAP Program because the authorizations of, and permits for, these
transmission facilities are typically included in the authorizations
and permits for the connected generation projects. Coordinating Federal
authorizations for generation projects, and reducing timelines for
joint transmission-generation projects with interdependent permitting
requirements, are beyond the scope of the 2023 MOU and the CITAP
Program. This limitation allows DOE to focus its resources on
addressing known challenges for transmission facility permitting.
With respect offshore transmission facilities whose Federal
authorizations and project development are independent of generation
development, DOE is finalizing an approach consistent with the 2023
MOU. For qualification by attribute, DOE declines to remove the
requirement that the proposed electric transmission facility will not
require authorization under section 8(p) of the Outer Continental Shelf
Lands Act. Excluding offshore transmission from the qualification by
attribute will facilitate a more efficient allocation of resources.
Shared offshore transmission is a nascent industry with unique and
unsettled permitting issues. Considering proposed offshore transmission
facilities as potentially eligible for the CITAP Program in
consultation with the MOU signatories, which is provided under
qualification by request, will allow DOE to adopt a more tailored and
responsive approach to this new industry.
In order for offshore transmission facilities to be eligible for
the CITAP Program via qualification by request, DOE proposed, and
adopts here, the requirement that the MOU signatories must agree to DOE
coordination for offshore transmission facilities for the reasons
explained in the prior paragraph. DOE declines to only require
agreement from those MOU signatories that are authorizing Federal
agencies. DOE is unpersuaded that a single, non-authorizing agency
would unilaterally hold up a proposed offshore transmission facility's
eligibility for the CITAP Program, such that those agencies should not
be allowed to participate in the eligibility decision making. Instead,
DOE believes that continuing the coordination demonstrated by the MOU
is consistent with the spirit of the CITAP Program and important for
keeping all relevant agencies involved in ongoing development of
offshore transmission permitting.
DOE also declines to establish a process to allow potential State-
awarded transmission facilities to participate and to enable the Bureau
of Ocean Energy Management or a State to request that a project
participate, as ACP and ACORE suggested. At this time, DOE is focusing
the CITAP Program on addressing well-documented and understood Federal
authorization issues via improved coordination for a subset of proposed
electric transmission facilities for which DOE coordination is likely
to be most impactful. DOE is not persuaded that
[[Page 35323]]
creating a process for entities other than the project proponent to
request participation for a proposed project in the CITAP Program is
necessary to provide the benefits of the program to a project. DOE may
consider revising its approach to offshore transmission facilities in
future rulemakings pursuant to FPA section 216(h).
Concerning commenters' proposed revisions to the definition of
``qualifying project'' based on advanced transmission technologies or
undergrounding, DOE declines to adopt such revisions. As explained
throughout this section, DOE's approach is targeted towards proposed
transmission facilities that are likely facing the types of permitting
challenges for which FPA section 216(h) and the CITAP Program were
created. Commenters provide no evidence to suggest that superconductor
permitting or undergrounding are unique as to warrant special
recognition within the definition of ``qualifying project.'' This is
not to say that a proponent of a transmission facility that contains
these features cannot also be a ``qualifying project'' under DOE's
adopted definition.
Finally, DOE declines to adopt CBD's suggestion that DOE impose a
necessity test for proposed electric transmission facilities compared
to non-transmission alternatives as a gateway to participation in the
CITAP Program. Congress directed DOE to coordinate the authorizations
necessary for the siting of transmission lines. DOE understands that to
mean that Congress believes transmission lines are necessary and that
Congress did not intend to supplant existing transmission planning
processes. Through the CITAP Program, DOE will coordinate
authorizations for transmission lines, which remain subject to the
statutes relevant to their authorization, including NEPA. Through these
statutes and their associated environmental review processes that DOE
will coordinate, reasonable alternatives will be considered by the
appropriate Federal agency as appropriate, which may or may not include
non-transmission alternatives.
D. Purpose and Scope of the IIP Process
DOE's Proposal
Under the proposed rule, the IIP Process is intended for qualifying
project proponents who have sufficiently advanced their project such
that they have identified potential study corridors and/or potential
routes and the proposed locations of any intermediate substations. DOE
proposed to establish the IIP Process as a mandatory prerequisite for
coordination under the CITAP Program and require the submission of
thirteen project proponent resource reports that will serve as inputs,
as appropriate, into the relevant Federal analyses and facilitate early
identification of project issues. Within these resource reports, DOE
proposed to require reasonably foreseeable information in three of
them: in the General Project Summary, DOE proposed to require
reasonably foreseeable plans for future expansion of facilities and
specific generation resources that are known or reasonably foreseen to
be developed or interconnected; in the air quality and noise effects
report, DOE proposed to require estimates on reasonably foreseeable
emissions construction, operation, and maintenance, and reasonably
foreseeable changes in greenhouse gas emissions and indirect emissions;
and in the Reliability, Resilience, and Safety report, DOE proposed to
require a description of the reasonably foreseeable impacts from a
failure of the proposed facility.
DOE also proposed to also establish the IIP Process as an iterative
process anchored by three meetings, which function as milestones in the
process: the initial meeting, review meeting, and close-out meeting.
DOE proposed in the NOPR to require the project proponent to submit an
initiation request containing certain information to DOE to initiate
the IIP Process, including a summary of the qualifying project not to
exceed 10 single-spaced pages and a project participation plan not to
exceed 10 single-spaced pages. DOE also proposed to require the
proponent to submit meeting review requests containing certain
information to DOE prior to each of the three meetings. DOE proposed
that the project proponent submit incomplete information so long as an
acceptable reason for the absence of the information and an acceptable
timeline for filing it is provided, and it provided the Director with
discretion to waive any requirement imposed on a project proponent if
the Director determines that that the requirement is unnecessary,
duplicative, or impracticable under the relevant circumstances.
The proposed rule explained that the IIP Process would ensure early
interaction between the project proponent, relevant Federal entities,
and relevant non-Federal entities, and that DOE would, to the maximum
extent practicable and consistent with Federal law, coordinate the IIP
Process with any relevant non-Federal entities. DOE also proposed in
the NOPR that the IIP Process did not preclude additional
communications between the project proponent and relevant Federal
entities outside the IIP Process meetings.
Additionally, the NOPR proposed to provide a process by which a
person may submit confidential information during the IIP Process or to
request designation of information containing Critical Electric
Infrastructure Information (CEII); these provisions established the
mechanisms through which the IIP Process complied with 10 CFR 1004.11
and 1004.13.
In the NOPR, DOE specifically sought comment on the page
limitations and on the resource report requirements to avoid, to the
maximum extent practicable, duplication in these requirements.
Summary of Public Comments
DOE received several comments that addressed the purpose and scope
of the IIP Process including comments on the IIP Process as a
prerequisite for DOE coordination; the level of detail required during
the IIP Process and in resource reports, including page limits and
reasonably foreseeable impacts; the role of the three anchor meetings;
participation of Federal and non-Federal entities; and protection of
confidential information and/or CEII. Comments to specific resource
report requirements are addressed in section VI.L of this document on
an individual report basis.
DOE received many comments in support of the proposed IIP Process.
Grid United, PIOs, State of Colorado Governor's Office, EEI, ACP,
ACORE, PJM, and CEBA expressed support for the revitalized IIP Process
proposed in the NOPR. PIOs stated that the IIP Process will help
Federal agencies coordinate information exchange that is necessary to
fulfill their individual statutory mandates, avoid duplication of cost
and effort for project proponents, and reduce the potential for
unexpected delays later in the permitting process. PIOs also agreed
with DOE that, by increasing the pace of transmission development
through the IIP Process, the proposed rule will confer significant
public benefits. The State of Colorado Governor's Office recognized
that the IIP Process would provide developers a uniform mechanism for
projects to identify siting constraints and opportunities, engage with
Indian Tribes, local communities, and other stakeholders, and to gather
information that would serve as inputs, as appropriate, into Federal
authorization decisions. EEI and ACP recognized the potential benefits
to be gained from the IIP Process and encouraged DOE to move swiftly to
both finalize the proposed approach and commit to
[[Page 35324]]
working closely with project proponents to ensure that the IIP Process
produces the promised results. EEI stated its belief that by
collaborating with electric companies, DOE can significantly increase
the efficiency of the process and reduce the time needed for NEPA
reviews while ensuring environmental integrity and project deployment.
ACP and ACORE both supported the mandatory nature of the IIP
Process as a prerequisite to participation in the CITAP Program,
provided that it serves its intended objective of enhancing
coordination, reducing permitting timelines, and minimizing
duplication. ACP and ACORE noted that the IIP Process's early
environmental review could conserve resources for public and private
participations. PJM noted that the requirement should help avoid the
current multi-agency piecemeal approach.
DOE also received comments generally in support of the
establishment of the resource reports. AEU and the CARE Coalition
expressed support for the thirteen resource reports proposed by DOE.
AEU commented that the resource reports provided a comprehensive and
wide-ranging analysis of the project. CARE Coalition commented that the
resource reports were sufficiently comprehensive and detailed to enable
Federal agencies, State and Tribal authorities, stakeholders, and the
public to adequately review the project. AZGFD explained that the
heightened consideration for resources through submitting 13 resource
reports early in the process enables coordination and prevents
implementation delays. It also stated that in some cases, adequate
assessment of resources could take multiple years and multiple
revisions before Federal environmental review is complete.
However, while commenters were broadly supportive, some commenters
suggested changes to the level of detail required during the IIP
Process and resource reports, indicating these would add flexibility
and avoid what they perceived as unnecessary or burdensome tasks. Pew
Charitable Trusts, in response to potential opposition to the level of
information required in the pre-application phase, cited previous
studies that conclude that a transparent and thorough siting process
can benefit both the public and developers. AEP emphasized that an IIP
Process should only be mandatory if it (1) informs the NEPA process and
(2) minimizes duplication by project proponents and Federal entities.
AEP noted that the IIP Process should also conserve the resources of
project developers by actively encouraging permitting authorities to
rely on the IIP Process's early environmental review. AEP also urged
DOE to coordinate with transmission developers to enhance efficiency
and protect environmental objectives. ACP cautioned against a
burdensome pre-application phase and encouraged DOE to demand a level
of information that is appropriate for NEPA scoping and consistent with
the project's development. ACEG agreed with these assertions, adding
that the level of information required in the IIP Process should be
appropriate to support the relevant Federal entities' reviews and
consultations, including under NEPA, ESA, and NHPA. ACEG emphasized the
importance of reasonable and flexible demands. Similarly, CEBA
cautioned against an IIP Process that was too complicated or time
consuming. ACORE noted that the timeline for the submission of
information in the IIP Process should align with when developers have
the needed information and recommended that DOE provide some
flexibility in those instances when the full scope of the information
required in the IIP reports is not yet available. The NYTOs also
suggested DOE should ensure that its data requests and sufficiency
determinations align with the reliable data and information standards
now set forth in sections 102(E) and 106(b)(3) of NEPA. These NEPA
standards emphasize the use of reliable data and explicitly provide in
NEPA section 106(b)(3)(B) that in making a determination regarding the
level of review under NEPA, an agency ``is not required to undertake
new scientific or technical research unless the new scientific or
technical research is essential to a reasoned choice among
alternatives, and the overall costs and time frame of obtaining it are
not unreasonable.'' Similarly, Grid United recommended that DOE should
consider section 106(b)(3) of NEPA in determining the level of
information that is sufficient for each IIP Process meeting. AEP
cautioned against a CITAP or IIP Process that duplicates or exceeds
State regulatory application requirements.
Several comments addressed the level of detail required in the
resource reports and the burden this would represent to the project
proponent. ACP expressed concerns with the level of time and effort
required for the development and submission of DOE's proposed resource
reports so early in the process, when their usefulness in NEPA's EIS
review process is uncertain, and urged DOE to consider that there may
be limited information available in the early stages of permitting. ACP
requested that the mandatory ``shall'' language be changed to
``should'' or ``to the extent practicable.'' ACEG, SEIA, and CEBA noted
that DOE needs to strike a balance between requiring enough information
to be helpful in streamlining the review but not making requirements so
strict that project proponents are discouraged. ACEG stated that
information required in the resource reports must be limited to the
information available at the time of submission, as this is a
preliminary stage and developers should not be discouraged from
applying if they do not yet have all the information. ACEG recommended
that the detail of each resource report must be commensurate with the
level of available information at the time of the submission.
Relatedly, DOE received several comments regarding the requirements
that project proponents account for reasonably foreseeable effects.
PIOs commented in support of the proposed rule's requirement to assess
climate impacts. PIOs explained that the proposed rule's requirements
that resource reports account for generation resources that are
reasonably foreseen to be developed or interconnected and for
reasonably foreseeable changes in emissions will ensure a rigorous
environmental analysis that properly accounts for the project's climate
impacts and are well-founded in NEPA's plain text and implementing
regulations, CEQ guidance, and judicial precedent. Policy Integrity
provided similar rationale and additionally indicated that providing
such data would be ``relatively easy'' for proponents. Policy Integrity
elaborated that FERC has historically required such estimates from
transmission developers, that developers have previously submitted
these data and analysis to both DOE and FERC, and that power system
emissions estimates are accessible through readily available modeling
software. Along similar lines, AEU commented that the resource reports
are comprehensive and require a wide-ranging analysis of the project,
and that the requirement to describe reasonably foreseeable generation
resources is especially beneficial because it illustrates the project's
value and benefits to the larger regional and interregional grid.
On the other hand, CATF suggested that instead of requiring project
proponents to describe reasonably foreseeable generation resources, DOE
should request this specific information only for generator
interconnections designed to connect specific generation resources to
the bulk power system.
[[Page 35325]]
CATF explained that it may be difficult for certain qualifying projects
to determine the scope of what generation resources are reasonably
foreseeable. Accordingly, CATF recommended that DOE not require project
proponents to determine associated generation resources where
burdensome, speculative, and of limited value to decision makers, and
revise the provision to include only ``specific'' generation resources.
CATF cited to judicial decisions to support the proposition that an
analysis of foreseeable generation is not required where the generation
would likely have occurred even absent the project. ClearPath offered
additional criticisms of the foreseeable generation requirement.
ClearPath urged DOE not to exceed its jurisdiction to conduct
environmental reviews by including additional requirements without
consulting CEQ, and stated that DOE's requirements to consider indirect
impacts of the project and identify effects from existing or reasonably
foreseeable projects are beyond DOE's statutory authority and are
contrary to CEQ Guidance. ClearPath recommended that DOE limit IIP
Process requirements, and subsequent review in an EIS, to only an
electric transmission line and its attendant facilities within Federal
jurisdiction. Finally, the NM SHPO inquired generally about foreseeable
generation, and whether foreseeable development will be considered in
the assessment of historic properties under NHPA section 106 and its
implementing regulations.
DOE also received comments on the iterative nature of the IIP
Process and the role and scope of the three anchor meetings. While ACP
approved of the general structure of anchor meetings, ACP emphasized
the importance of flexibility in order to accommodate proposed projects
that already have conducted significant Federal and State outreach or
have agency-specific reporting that may differ in approach and timing
to the IIP. ACP also suggested that DOE clarify how potential route
changes can be accommodated without restarting the process, and that
the final rule provide specific criteria that DOE and relevant Federal
entities would follow in their consideration of adding, deleting, or
modifying these routes.
ACEG suggested that DOE amend the proposed rule to strike or
significantly modify its ``sufficiency'' standard for scheduling
meetings, which DOE proposed to be required for scheduling each of the
three required anchor meeting requests. ACEG and NYTOs commented that
DOE should only find a meeting request insufficient when the
information provided in the meeting request is insufficient to support
a productive meeting, e.g., a review meeting request should only
require sufficient information to hold a productive discussion on the
initial resource reports. For an example, NYTOs stated that as an
``initial review meeting'' is intended to identify issues of concern,
information gaps or data needs--the existence of information gaps or
the need for additional data, itself, should not be an appropriate
basis for declining to proceed with a review meeting. ACEG expressed
concerns that the current approach could allow an application to be
indefinitely ``parked'' by unreasonable or overly burdensome demands
for more information for purposes of a sufficiency determination.
Similarly, Idaho Power asked, recognizing that review under the IIP
Process is iterative, what controls there are to avoid continued and
repeated refinement of analysis. Idaho Power also asked if the resource
report requirement change infers the project proponent will have
already identified potential resource concerns by consulting with
relevant, Federal land managers.
DOE requested comments on page limits for certain submission in the
NOPR and received seven responses. CBD and the CARE Coalition both
expressed a general concern with page limits on environmental reviews,
with CBD stating that arbitrary limits risk sacrificing detail,
undermining public participation, and causing delays. The Kentucky SHPO
stated that page limits may be applicable if resource reports will
serve only as background information, but page limits may not comply
with NHPA or applicable State statutes if documentation is intended to
be utilized by the project proponent or Federal agency for section 106
consultation materials. AZGFD noted that the NOPR only mentions page
limits in the documents Summary of the Qualifying Project and Project
Participation Plan, required by Sec. 900.5, and recommended that DOE
not include page limits for resource reports. ACP expressed concern
with imposing page limits on project summaries and participations plans
required by Sec. 900.5 and instead recommended that DOE allow for
flexibility and allow for page-limit carve outs for appendices where
appropriate. Gallatin Power stated that the page limits for the Summary
of the Qualifying Project and Project Participation Plan are reasonable
but noted that the scope of transmission projects will vary greatly and
suggested that DOE allow project proponents to request additional pages
if deemed necessary. The CEC/CPUC stated that the page limit for the
Summary of the Qualifying Project is appropriate but the limit for the
Project Participation Plan may be limiting. Similarly, EDF raised a
concern that the ten-page limitation for a Project Participation Plan
might constrain the level of detail needed to comprehensively and
holistically assess the project's impact and may signal to project
proponents that only a cursory assessment is needed.
DOE received one comment regarding the participation of relevant
Federal entities. EEI noted that transmission projects that
interconnect, parallel, or cross facilities owned or operated by
Federal power marketing administrations, such as Bonneville Power
Administration and the Western Area Power Administration, may also be
qualifying projects under the CITAP Program as proposed. EEI suggested
that in such cases, the Federal power marketing administrations must be
involved in some manner as relevant Federal entities, either as joint
lead agency with DOE or otherwise, and should remain actively involved
in the coordination process. EEI further noted that providing a
coordination role for Federal power marketing administrations is
consistent with section 216(h).
DOE received comments from ACEG, AEP, and PIOs that addressed
participation of relevant non-Federal entities. AEP urged DOE to be
mindful of the important and necessary roles State and local
decisionmakers play in the proposed transmission project approval
process. ACEG and PIOs generally supported the clear and increased role
for non-Federal entities, including Indian Tribes, SHPOs, and THPOs, in
the IIP Process but noted that the important role of these additional
entities in the process can also complicate reviews. ACEG recommended
that DOE ensure that these non-Federal entities not only have but also
use their seat at the IIP Process table and have necessary resources to
fully participate in the process. PIOs stated that such improved
coordination will be essential to ensure that resource reports provide
all the necessary analysis and information to enable project proponents
to receive all relevant authorizations. ACEG also noted that one way
DOE can facilitate this participation is by effectively implementing
its grant funding opportunities for transmission siting and permitting
participation.
Regarding confidential information and/or CEII, the CARE Coalition
recommended that DOE specifically
[[Page 35326]]
invite comments from Indian Tribes regarding best practices around
outreach by project proponents and prioritize Tribal recommendations.
The CARE Coalition also recommended that DOE create a list of best
practices; add free, prior, and informed consent (FPIC) to that list;
and add language stating agencies must apply FPIC to all interactions
between agencies and Tribal governments. The CARE Coalition believes
that these changes will ensure that agencies adhere to both the United
Nations Declaration on the Rights of Indigenous Peoples and the Federal
trust responsibility to Tribal governments. Relatedly, PIOs recommended
that DOE adopt language from the Washington State Attorney General's
Centennial Accord Plan, Indigenous Knowledge requirements, and
requirements from the 2022 Biden Memorandum on Uniform Consultation
Standards. The CARE Coalition recommended that DOE add a separate
provision requiring agencies to clearly articulate the levels of
confidentiality afforded to the public and governmental engagement for
the information shared therein. The CARE Coalition recommended that DOE
ensure that sacred sites, locations, and Indigenous Knowledge are
protected from public disclosure to the greatest extent practicable.
The NM SHPO added that agency officials should address concerns about
confidentiality with Tribes.
DOE received comments requesting clarification on how the proposed
rule would affect transmission projects that are already in the
permitting process from Stoel Rives LLP and Idaho Power and a comment
from Gallatin Power regarding the interaction of the IIP Process with
other permitting processes. Stoel Rives argued that these projects
should also be eligible for DOE's improved and expedited approval
process, under the CITAP Program or otherwise. Stoel Rives encouraged
DOE to consider these projects in this final rule and provide a roadmap
detailing how they can be integrated into the process. Gallatin Power
raised a concern that under the current provisions, a project proponent
will not be able to submit applications to relevant Federal agencies
for necessary Federal authorizations until after the completion of the
IIP Process. Gallatin Power contended that the submission of an
authorization application and supporting materials allows for the
developer to identify its interest in a right-of-way path impacting
Federal land and be designated the ``first-in-line'' for review.
Forcing the application submittal to later in the process could result
in multiple developers attempting to complete the IIP Process,
including the intensive resource reports, for the same lands at the
same time. This would create substantial inefficiencies for both the
project proponents and the agencies involved. Gallatin Power suggested
that to avoid this, DOE should either continue to allow developers to
submit applications to Federal agencies prior to initiating the IIP
Process or institute a similar ``first-in-line'' approach based on when
projects are proposed for the CITAP Program. Gallatin Power also
proposed that the transmission projects that have already submitted
applications for authorizations to relevant Federal agencies should not
be forced to redo their application process or have their applications
invalidated until the IIP Process is completed. They argued that doing
so would be highly disruptive to development efforts and
counterproductive to DOE's goals.
DOE also received comments regarding studies that may be undertaken
during the IIP Process. The CEC/CPUC encouraged early coordination and
review of a project proponent's supporting study methods for the IIP
Process because reviewing study methods and securing necessary
approvals for field review, before a proponent has conducted its
studies, could reduce later delays. Additionally, the CEC/CPUC
encouraged DOE to help other Federal agencies set schedules for timely
study authorizations and afford exemptions to allow project proponents
to initiate the IIP/CITAP Process if other Federal agency
authorizations are delayed. Idaho Power asked DOE to clarify if the
level of study is assumed to be desktop/GIS-informed or if there an
expectation that field surveys will be completed for all project
alternatives. Idaho Power also asked if DOE would be the final arbiter
of completeness for studies or if each relevant Federal land management
agency would have the authority to request additional information.
Gallatin Power commented that DOE should clarify when the project
proponent will receive authorization from Federal agencies to complete
field resource surveys. Gallatin Power further stated that a lack of
structure could allow for the permitting timelines to remain the same
since uncertainty would be shifted to before the start of the rule's
proposed two-year NEPA deadline.
Five commenters provided responses to DOE's request regarding the
duplicative aspects of the NOPR. ACP commented that project proponents
should be permitted to incorporate by reference existing data,
environmental reviews, and public engagement efforts to streamline the
process. ACEG recommended that the specific language regarding
incorporation by reference be clarified so that incorporation by
reference is permissible for all data, not just material in other
resource reports and provided some suggested edits to the provision.
CEC/CPUC stated that duplicative aspects of reports should be
eliminated to limit inconsistencies in review, providing as an example
that the Cultural Resources resource report, the Tribal Resources
resource report, the Communities of Interest resource report, and the
Socioeconomic resource report all overlap but may not be reviewed by
the same agency subject matter experts, which may result in
inconsistent evaluations.
ClearPath stated that the requirement for project proponents to
list and describe all dwellings and related structures or other
structures normally or intended to be inhabited by humans within a 0.5-
mile-wide corridor centered on the proposed transmission line was
duplicative of information regarding affected landowners required in
General Project Description resource report and should be omitted.
ACP recommended that DOE not require the public disclosure of names
of people project proponents spoke to in preparing the resource
reports, as this is overly onerous and lack of detail in this section
should not be a basis to legally challenge DOE's eventual
determination.
DOE Response
In this final rule, DOE retains the purpose and scope of the IIP
Process as proposed in the NOPR, including the three-anchor-meeting
structure and information requirements for progressing through the
process, with minor revisions. DOE revises this final rule for clarity
and to reduce burdensome and duplicative requirements in response to
comments, as described below. DOE revises the page limits in this final
rule to allow for project proponents to request a waiver. DOE makes no
other revisions in response to these comments but notes that revisions
to resource reports and IIP Process meetings in response to other,
specific comments received on those aspects are addressed in sections
VI.N and G of this document.
DOE declines to act on those comments urging greater flexibility in
the IIP Process and in the content of resource reports because it
believes such measures are unnecessary. This final rule confirms the
provisions in the NOPR that provide for sufficient
[[Page 35327]]
flexibility: the three anchor meetings, which provide structured
opportunities to discuss and establish expectations; the provision
permitting the project proponent to submit resource reports missing
discrete pieces of information so long as the project proponent
provides an acceptable reason for the omission and an acceptable
timeline for curing the omission; and the provision granting the
Director of the Grid Deployment Office with discretion to waive any
requirement imposed on a project proponent if the Director of the Grid
Deployment Office determines that that it is unnecessary, duplicative,
or impracticable under the relevant circumstances. DOE finds that
together these provisions provided the flexibility necessary to respond
to a wide variety of circumstances.
Regarding comments from ACP, ACEG, ACORE, SEIA, and CEBA on the
level of detail requested in resource reports and specifically the
availability of information based on project maturity and compliance
with NEPA regulations, DOE makes no revisions in response to these
comments. First, DOE believes the level of detail in the resource
reports is necessary for DOE to implement its authority under section
216(h), which includes both environmental review and the coordination
of decision making with relevant Federal entities. Second, this final
rule adopts the proposed provision that project proponents may address
and justify omissions or incomplete information. DOE believes this
provides sufficient flexibility to accommodate project differences
without further revision. Regarding ACP's request to modify language
from shall to ``should'' or ``to the extent practicable'', where DOE
intends to impose a mandatory obligation, it uses appropriate language,
including ``shall.''
Regarding the inclusion of reasonably foreseeable effects, DOE
declines to make changes to the requirements that project proponents
identify certain reasonably foreseeable effects. DOE's obligations
under NEPA, as well as corresponding obligations under section 106 of
the NHPA and the ESA, require the Department to consider the reasonably
foreseeable effects of major Federal actions affecting the quality of
the human environment, as noted in PIOs' comment. While the scope of
any NEPA review will be determined at the close of the IIP Process and
on a case-by-case basis, the information required for inclusion within
the resource reports discussed in this section is likely to be relevant
for preparation of environmental review documents necessary for
authorizations subject to this rule. In order to assist DOE in fully
considering this relevant information, DOE seeks input from project
proponents to identify reasonably foreseeable generation projects that
may be caused by a Federal authorization. Even when DOE determines a
particular generation resource to be outside the scope of review DOE
may still need to identify the resource and explain its conclusion. The
language of the rule tracks these statutory obligations, and is
consistent with the Secretary of Energy's authority under section
216(h) to require the submission of all data considered necessary.
Regarding the iterative nature and level of information requested
for the three anchor meetings, DOE makes minor changes in this final
rule regarding the discussion of and criteria for modifying study
corridors in response to comments. DOE restates that the IIP Process is
designed to allow for flexibility throughout the process while
maintaining sufficient review periods to ensure that the project
proponent is taking the steps necessary to complete the required
Federal authorization processes.
In response to ACP's concern on how route changes will be
accommodated without restarting the IIP Process, DOE believes the
iterative nature of the IIP Process provides mechanisms to account for
route changes, including: meetings, the use of analysis areas for
resource report assessments (discussed in section VI.K.ii of this
document in detail), study corridors that may contain multiple routes,
and the resubmission of resources reports, none of which require a
restart to the IIP Process. Accordingly, DOE makes no changes in
response. Regarding ACP's request for criteria on adding or deleting
routes, DOE revises the rule for clarity. First, DOE relocates the list
of criteria from the initial meeting to Sec. 900.4, Purpose and Scope
of the IIP Process, and clarifies in the text that these are the
initial list of criteria the project proponent should consider when
developing potential study corridors and potential routes for the IIP
Process. The change encourages the project proponent to utilize the
criteria in identifying routes and corridors throughout the IIP
Process, rather than just after the initial meeting. Second, DOE
removes ``deleting'' from the initial meeting discussion topic to
clarify that the IIP Process does not include a Federal entity deleting
any corridors or routes. This final rule retains the requirement for
DOE and other agencies to identify other criteria for adding or
modifying potential routes and includes that the agencies should also
identify criteria for potential study corridors as well. DOE makes no
further revisions as these changes sufficiently clarify the criteria
recommended and how they will be considered, and any additional
criteria will be discussed on a project-by-project basis.
DOE makes no changes to the final rule in response to comments from
ACEG and NYTO regarding establishing a standard for determining the
sufficiency of materials required for each IIP Process meeting. DOE
requests the information it deems necessary and sufficient for each
meeting as described in the rule and has chosen not to provide a
specific standard in order to maintain flexibility to evaluate
submitted materials depending on the specific needs and circumstances
of each project. As previously noted, IIP Process materials may be
submitted with omissions provided that the omission is noted, a reason
is given, and reasonable timeline for curing the omission is provided.
Additionally, the final rule confirms the proposed provisions through
which DOE will provide reasons for finding the submissions deficient
and how such deficiencies may be addressed by the project proponent.
DOE believes these provisions provide flexibility for a wide range of
project circumstances.
Regarding concerns from Idaho Power and ACEG that projects could be
``parked'' in the IIP Process, DOE makes no revisions to the final
rule. This final rule confirms the intended iterative nature of the IIP
Process and the interests of DOE in engaging in communications that are
not limited to the three anchor meetings. These provisions are intended
to prevent the situation described by the commenters where a request is
rejected due to information or knowledge gaps or continued study
refinement, by providing a communication mechanism through which such
gaps could be discussed in advance. Additionally, as previously
explained, DOE provides sufficient flexibility to the IIP Process to
accommodate unique circumstances.
Regarding Idaho Power's question as to whether project proponents
are expected to engage with agencies prior to the IIP Process, DOE
responds that project proponents may choose to consult with relevant
entities prior to IIP Process at their discretion, but are not required
or expected to do so.
Regarding page limits, DOE believes that the limitation on the
number of pages in the Summary of the Qualifying Project and the
Project Participation Plan is generally useful and appropriate, but
agrees with commenters that some complex projects may require
additional pages to address pertinent information for the project and
the project
[[Page 35328]]
proponent's outreach. Accordingly, DOE revises this final rule to allow
for project proponents to request waivers to the page limitations of
the Summary of the Qualifying Project and the Project Participation
Plan. As the proposed rule established no specific page limitations on
the environmental review document or resource reports, DOE makes no
additional revisions in response to comments on those documents but
acknowledges that relevant statutory page limits for environmental
review documents will be followed.
Regarding the participation of relevant Federal entities, DOE has
made no changes in response to EEI's suggestion to include Federal
power marketing administrations because DOE has determined that such a
scenario is already allowed by the regulatory text in the definition of
relevant Federal entity.
Regarding the participation of relevant non-Federal entities, DOE
agrees that not all relevant non-Federal entities will have the
resources available to participate in the IIP Process. DOE makes no
changes to this final rule, however, because provisions for cost-
recovery and contribution of funds, which may assist in those entities'
participation, are already included in the IIP Process. The
recommendation of coordination of grant funding is outside the scope of
this rulemaking, which is limited to implementation of DOE's
coordinating authority under section 216(h) of the FPA. DOE has made no
changes in response to this comment. DOE encourages non-Federal
entities with authority to make permitting decisions regarding proposed
electric transmission projects (e.g., State siting authorities) to
actively participate in the CITAP Program, and will continue to seek
ways to support such participation as the Program is implemented.
Regarding confidentiality of information and recommendations from
the CARE Coalition among others, DOE makes no changes to this final
rule. DOE finds that existing statutory provisions referenced in the
proposed rule and confirmed in this final rule provide a framework for
the protection of certain sensitive information from public disclosure.
DOE recognizes that Indian Tribes are entitled to decline to provide
information potentially at issue in the resource reports and IIP
Process, and notes that this final rule does not mandate that Indian
Tribes provide any material or information to project proponents. DOE
will work with Indian Tribes to access relevant material and
incorporate it into relevant decision-making while protecting the
confidential and sensitive nature of that information as necessary and
legally permitted. Additionally, as noted in section IV of this
document, DOE affirms the sovereignty of Federally recognized Indian
Tribes and confirms that the rule makes no changes to Federal agencies'
government-to-government responsibilities. DOE commits to undertake
Tribal consultation as appropriate, including as required by applicable
authorities such as Executive Order 13007 or the Presidential
Memorandum on Uniform Standards for Tribal Consultation, and commits to
designate Indian Tribes with special expertise regarding a qualifying
project, including knowledge about sacred sites that the project could
affect, that are eligible, to become cooperating agencies under NEPA.
DOE declines to include in the final rule best practices around
outreach by project proponents or to import existing requirements
related to Tribal engagement into this rule. The form and scope of
outreach may vary by project and DOE believes these issues are best
addressed on a project-by-project basis or in guidance outside of this
rule.
Regarding participation of projects already undergoing a permitting
process, DOE notes that nothing in the definition of qualifying project
excludes such projects from participation and that the flexibility
provided for in the IIP Process will allow DOE to determine
accommodations for such projects on a project-by-project basis. DOE
disagrees with Gallatin Power's interpretation that the CITAP Program
would disallow or invalidate permitting applications previously
submitted prior to initiation of the IIP Process or submitted during
the IIP Process. DOE acknowledges that some applications for
authorizations may already be submitted prior to initiation of the IIP
Process or may be submitted during the IIP Process and accommodates for
such scenarios in the rule. For example, this final rule confirms the
NOPR provisions that the initiation request and the review meeting
request require the project proponent to provide a list of anticipated
and completed dates of applications for authorizations or permits.
Further, the rule specifically provides in Sec. 900.5(h)(2) that at
the initial meeting DOE will identify any Federal applications that
must be submitted during the IIP Process to enable relevant Federal
entities to begin work on the review process. DOE finds that these
provisions sufficiently provide that this final rule will not impede
developers' strategies for seeking authorizations for their projects.
Nowhere in the rule does DOE indicate that these applications will be
invalidated or require resubmission, nor does DOE have authority to do
so.
Regarding study methods and approvals as raised by CEC/CPUC, Idaho
Power, and Gallatin Power, DOE revises this final rule to provide
clarity on the extent to which analysis of alternatives is expected
(discussed in more detail in section VI.L.xi of this document) and to
specify that required or recommended surveys or studies will be
discussed in the IIP Process during the initial and review meeting. DOE
makes no further revisions to this final rule in response to these
comments as study methods and authorization timelines are specific to
project circumstances and DOE will address these on a project-by-
project basis. DOE clarifies here that DOE leads the IIP Process and
will determine the completeness of documents and studies for the
purpose of progressing through the milestones, while relevant Federal
entities maintain statutory authority for determining the completeness
of information needed for their decision-making.
Regarding the duplicative nature of some resources reports, DOE
makes minor revisions in response to these comments. DOE agrees that
incorporation by reference should extend to publicly available sources,
such as existing data and environmental reviews, but only if they exist
in electronic form (to ensure relevant entities can reasonably access
the material), and revises this final rule to allow for such
references. In response to the request to combine resource reports to
assure consistent review, DOE makes no revisions in response to this
comment as DOE believes the division of resource reports will provide
specific information pertinent to that resource topic that is necessary
for DOE to implement its coordination authority. Further DOE believes
the coordination of reviews within the IIP Process with relevant
Federal entities will provide consistency of evaluation, and notes that
the review of project proponent resource reports does not replace or
supplant Federal entities' responsibilities to evaluate necessary
information for decision making on authorizations and permits under
their purview. Regarding the request to remove duplication in reporting
of affected landowners and dwellings proximate to the proposed route,
DOE makes no revisions in this final rule. DOE does not agree that
these are duplicative requests, as affected landowner describes a
person or entity and dwelling describes a building.
In response to ACP's concern about the burden of providing detailed
information on all persons contacted in
[[Page 35329]]
development of the resource reports, DOE agrees that this provision
represents an unnecessary burden on project proponents and removes it
from this final rule.
E. Public Participation in the IIP Process
DOE's Proposal
The proposed rule included several provisions addressing public
participation. In the NOPR, DOE proposed the project proponent submit,
as part of the initiation request, a project participation plan. The
proposed project participation plan included the project proponent's
history of engagement with communities of interest and stakeholders,
and a public engagement plan for the project proponent's future
engagement with communities of interest and with Indian Tribes that
would be affected by a proposed qualifying project. Before the review
and close-out meetings, DOE proposed that the project proponent provide
an updated public engagement plan to reflect any activities during the
IIP Process. Additionally, the proposed rule required the standard
schedule to take into consideration the need for early and meaningful
consultation with Indian Tribes and engagement with stakeholders and
communities of interest. Likewise, the project-specific schedule was
required to account for early and meaningful consultation with Indian
Tribes and engagement with stakeholders.
Summary of Public Comments
DOE received several comments addressing public participation
during the IIP Process, including the requirement of project proponents
to plan for and report on engagement with various groups, and
recommendations for modifications, clarifications, expansions, and
reductions of the proposed public engagement reporting requirements.
Many commenters supported DOE's requirement to have a project
proponent submit project participation and engagement plans. ACP, AEU,
ACEG, SEIA, Pew Charitable Trusts, CEBA, and PIOs all expressed support
for the requirement, expressing that such engagement would build trust
and allow prompt response to concerns. PIOs expressed that they believe
DOE is correct to require project proponents to furnish ``specific
information on the proponent's engagement with communities of interest
and with Indian Tribes'' and that requiring a public participation plan
is well-grounded in binding Federal authorities. Additionally, PIOs
expressed appreciation to DOE for noting that project proponent
outreach efforts are merely complementary and not substitutive for
Federal agencies' own engagement with communities and Indian Tribes nor
are they substitutive for formal requirements under NEPA or other laws
that provide formal avenues for community input. ACP supported DOE's
efforts to encourage early and consistent engagement by project
proponents with affected communities, as this represents a best
practice for identifying, mitigating, and avoiding risks of sometimes-
contentious transmission project development.
DOE received several comments recommending changes to the role of
public participation and the scope of participants. EDF stated that the
project participation plan is too narrowly focused, as public input
should be expansive and not limited to ``project engineering and route
planning.'' The CARE Coalition encouraged DOE to require that project
participation and public engagement plans include information about
engagement with advocates for the public interest, such as advocates
for wildlife protection, who may not be covered under the definition of
``communities of interest.'' The CARE Coalition argued that the
inclusion of these groups and individuals in the project participation
and public engagement plans would help develop resource reports, reduce
litigation risk, reduce delays, and reduce overall project costs. PIOs
recommended that DOE require separate engagement plans for Indian
Tribes and communities of interest.
Commenters requested more guidance on public engagement, including
parameters, minimum requirements, metrics, and best practices. EDF
commented that proposed rule does not require the project proponent to
strictly define communities of interest and recommended that the
communities considered should be based on CEQ's Climate and Economic
Justice Screening Tool or a comparable tool. EDF further recommended
refining the public engagement plan to include mandatory deadlines or
frequency of outreach requirements, to specify when communities of
interest will have an opportunity to raise concerns, and to list
additional tools that would facilitate communication in order to
improve the efficacy of the plan. EDF expressed concern that the
project participation plan did not require project proponents to engage
with communities before substantive plans were solidified or require
that input from communities of interest is taken into account in the
beginning stages of plan development. Similarly, Niskanen Center was
concerned that the proposed rule did not have sufficient notification
or consultation requirements regarding the proposed public engagement
plan, such that a project proponent would actually have to engage early
or meaningfully with impacted parties or communities of interest.
Niskanen Center accordingly recommended adopting notice requirements
with defined timing and linked to specific milestones such as the
notice of an initiation request. The CARE Coalition recommended that
DOE adopt a definition of ``early and meaningful engagement'' similar
to EPA's definition of ``meaningful involvement'' in its Environmental
Justice 2020 Glossary and stated that providing a definition will
ensure that engagement with communities does not simply consist of
``check-the-box'' exercises without meaningfully engaging with
communities that are disproportionately and adversely affected by
certain Federal activities. ACP suggested that DOE should provide
additional clarity as to what specific steps are required for
engagement, and what DOE considers as ``successful'' engagement, and
AEU echoed this comment. ACP, AEU and ACEG requested that DOE expressly
recognize that engagement with potentially affected parties does not
necessarily mean that all parties will reach a consensus on all issues.
The CARE Coalition suggested DOE require submission of an ``Applicant
Code of Conduct'' with additional information collection and sharing
requirements for engagement, which would bring the rule into better
alignment with FERC's proposed backstop permitting rule. Similarly,
PIOs suggested that DOE require project proponents to adhere to a
rigorous ethical code of conduct. Additionally, EDF suggested that the
proposed rule might benefit from the expertise of DOE's Office of
Economic Impact and Diversity.
The CARE Coalition, CBD, and CEBA suggested including best
practices for public engagement and providing guidelines for project
proponents as to what activities are considered engagement.
Commenters also expressed concern about the extent and approach to
public engagement. AEP cautioned against a CITAP Program or IIP Process
that duplicates or exceeds the RTO stakeholder process or required
State and local permitting functions that ensure robust community and
landowner engagement and outreach. ClearPath expressed opposition to
requirements in the project participation plan and public engagement
plan that
[[Page 35330]]
create duplicative engagement requirements and institute different
standards of engagement for different population segments. ClearPath
specifically took issue with the different standards for ``communities
of interest'' and ``stakeholders'' in the plans and suggested that the
distinction was counterproductive to development of transmission
projects and possibly unconstitutional. ClearPath also recommended
amending the requirement that a project participation plan must include
``[a] description of . . . any entities and organizations interested in
the proposed undertaking.'' ClearPath stated that it was impossible to
describe any interested entities and organizations because DOE did not
provide a threshold for what actions constitute a demonstration of
interest. ClearPath recommended reevaluating whether this requirement
was feasible and overly burdensome. StopPATH WV expressed its view that
the project participation plan described in the NOPR is one-sided given
that the developer and agencies have primary decision-making power and
suggested that the name should be changed.
DOE received three comments regarding the role of community
benefits plans. Alan Leiserson commented that the public engagement
plans should require that the project proponent propose a community
benefit plan and consider affected communities' suggestions for it. EDF
also proposed that CITAP project participation plans and public
engagement plans be required to include information on any potential
community benefits agreements and the process that would be used to
work with communities of interest in developing such agreements. EDF
reasoned that information about any community benefit agreement or plan
would support the CITAP review process and allow for coordinated review
of the compliance of those plans with any other legal requirements. ACP
supported DOE's efforts to encourage early and consistent engagement by
project sponsors with affected communities. ACP expressed that DOE
should consider environmental mitigation and community benefits
developed under this community engagement process as project mitigation
and/or design features in NEPA reviews.
PIOs, CARE Coalition, CBD, and Policy Integrity recommended that
DOE incorporate additional opportunities for public participation in
the IIP Process. PIOs stated that communities and organizations with
relevant expertise should be allowed to participate in the three
required meetings. CARE Coalition and PIOs suggested that DOE add an
opportunity for public comment on project proponents' compliance with
their participation plans and provide a mechanism for affected
communities to make concerns known if proponents interact with the
communities in a manner that is aggressive, coercive, dishonest, or
otherwise unethical or if stakeholders disagree with project proponents
over the scope or nature of a project's impacts. Similarly, CBD
suggested including junctures at which the public could provide input
into the resource reports and public participation plan. Policy
Integrity also recommended that DOE modify the proposed IIP Process to
allow for early public comments, arguing that early community feedback
and expert opinion could reveal pitfalls in a project in the pre-
application stage. Without this step, Policy Integrity expressed
concern that the public would have no voice until after the
participating agencies have deliberated and potentially come to a
consensus on certain issues in the pre-application stage. For example,
Policy Integrity noted that agencies may deem project proponents'
Alternatives Report as complete once they ratify it during the IIP
Process, without any consideration for public input. Additionally,
Policy Integrity argued that its proposed revision would bring the IIP
Process into closer alignment with the pre-filing process for natural
gas infrastructure at FERC, which accepts formal public comment, and
suggested the consolidated administrative docket be allowed to provide
public feedback.
DOE Response
In this final rule, DOE retains the proposals in the NOPR to
require a project participation plan and a public engagement plan, and
the provisions in the NOPR addressing engagement with communities of
interest, Indian Tribes, potentially affected landowners, and
stakeholders. In response to these comments, DOE makes minor changes to
this final rule to clarify the scope of topics on which project
proponents should seek public engagement, for the reasons discussed
below. Revisions to the definitions of communities of interest,
potentially affected landowners, stakeholders, and to the resource
reports are addressed in sections VI.J and VI.K of this document in
response to other comments.
Regarding the role of public participation and the scope of
participants, DOE makes minor changes in response to these comments.
DOE clarifies that the project participation plan may include--but is
not limited to--engagement related to project engineering and route
planning and strikes ``project engineering and route planning'' from
this final rule to reflect this. DOE makes no changes in response to
the request to require engagement with advocates for the public
interest because DOE believes further expanding the required engagement
creates an undue burden on project proponents without substantial
benefit to communities of interest. Furthermore, DOE understands that
these advocates may, and often do, act as representatives on behalf of
communities of interest and are therefore likely to be engaged through
those relationships. DOE is unpersuaded that two public engagement
plans, one for communities of interest and another for Tribal
engagement, are necessary and believes that the proposed resource
report requirements for communities of interest and Tribal interests
allow for sufficient differentiation on the topics for DOE's
consideration.
Regarding requests for minimum standards, deadlines, frequency,
specific steps, use of tools for identifying communities of interest,
and notice requirements, from CARE Coalition, CBD, CEBA, EDF, and
Niskanen Center, DOE makes no revisions in this final rule in response
to these comments. DOE believes the provisions for public engagement in
the proposed rule and confirmed here establish sufficiently clear
expectations for project proponent activities while maintaining
flexibility for the project proponent to shape engagement consistent
with the project circumstances and development. These provisions as
proposed and now finalized sufficiently support the goals of the CITAP
Program by encouraging engagement on the part of the project proponent
to identify concerns early and to allow for the project proponent to
consider adjustments in a timely and responsive manner. Additionally,
these provisions are complementary and additional to Federal agencies'
own engagement with communities and Indian Tribes and the requirements
under NEPA or other laws that provide formal avenues for public input
including notice and consultation requirements. DOE is not persuaded
that additional requirements are necessary or appropriate for the IIP
Process.
Regarding codes of conduct, DOE has determined that defining a
singular code within the regulatory text is unnecessary at this time.
In its role coordinating the IIP Process and the CITAP Program, DOE
will work closely with project proponents, relevant
[[Page 35331]]
Federal entities, communities, and other stakeholders. In that role,
DOE will endeavor to ensure that project proponents engage in good
faith with all participants. In contrast to FERC, DOE does not have
specific statutory authority regarding eminent domain and thus
alignment with all aspects of FERC's proposed rulemaking pursuant to
engagement practices is not appropriate but may be addressed on a
project-by-project basis where relevant. With experience, DOE may find
it appropriate to provide code-of-conduct or ethical guidance and may
rely on the resources provided by commenters. DOE also clarifies, in
response to EDF's concern, that offices across the agency, including
the Office of Energy Justice and Equity (formerly Economic Impact and
Diversity), were consulted in the development of the rule.
DOE declines to define ``successful,'' as requested by ACP, or
``early and meaningful'' engagement as requested by the CARE Coalition,
because DOE believes the required information on engagement (including
what groups and individuals were engaged, how they were identified,
topics that were raised, and the project proponent's responses)
provides sufficient clarity and additional definitions are unnecessary.
DOE declines to include the statement requested by ACP, AEU and ACEG
that engagement with potentially affected parties does not necessarily
mean that all parties will reach a consensus on all issues because DOE
is not persuaded that the proposed rule indicates that all parties will
reach a consensus on all issues and therefore finds such a statement
unnecessary.
DOE believes that best practices are best provided in guidance
rather than regulatory text to allow for flexibility and evolution of
such practices and makes no changes in this final rule in response to
the comments by CARE Coalition, CBD, and CEBA. In the future, DOE may
issue guidance for community-led engagement, measuring engagement,
identifying communities of interest, and ethical and meaningful
engagement, which may include or reference the sources provided by
commenters as necessary for implementation of the CITAP Program.
In response to ClearPath's concern about different standards of
engagement, DOE reiterates that the various requirements, including the
resource reports and public engagement plan, are tailored to fulfill
various, not mutually exclusive, purposes to facilitate transmission
authorizations pursuant to the CITAP Program, and are not intended to,
nor do they, establish a hierarchy of treatment and consideration of
impacts across population segments.
In response to StopPath WV's objection to the project participation
plan, DOE declines to change the name of the project participation plan
because DOE is not persuaded that the phrase implies any decision-
making authority.
Regarding the role of community benefits and community benefits
plans, DOE makes no changes to this final rule. DOE believes that the
public participation provisions proposed and confirmed here are
sufficient to allow project proponents to engage with communities in
the development of plans or agreements and for compliance to be
evaluated in the CITAP Program where relevant for Federal permitting or
authorization decisions. DOE does not agree that additional
requirements are needed, as the comments suggest that the situations
described are not universal but rather depend on the project, and
therefore are best addressed on a project-by-project basis.
Regarding recommendations for inclusion of expert groups in the IIP
Process meetings and providing avenues for public comments, DOE makes
no changes in this final rule in response to these comments. First, as
noted previously, DOE believes the provisions in the proposed rule and
confirmed here are sufficient to support the goals of the CITAP
Program. DOE has structured the three IIP Process meetings to serve as
milestones for coordination between the project proponent and the
relevant Federal and non-Federal entities to ensure DOE can meet its
obligations under FPA section 216(h) and DOE does not intend to use
these meetings to solicit feedback from communities of interest or
receive expert input from other organizations. The public participation
plan is designed with the intent to identify issues well ahead of the
IIP Process meetings for this reason, as the meetings themselves are
not intended to serve as avenues for broader input. Second, as noted by
DOE throughout the rule and supported by commenters, the CITAP Program
public participation requirements are complementary and additional to
Federal agencies' own engagement with communities and Indian Tribes and
the requirements under NEPA or other laws that provide formal avenues
for public input and public comment, including on project impacts.
DOE disagrees with Policy Integrity's interpretation that agencies
will make decisions on Federal authorizations during the IIP Process.
Federal agency decisions remain subject to distinct decision-making
processes with requirements under NEPA and other laws that provide
formal avenues for public input. Furthermore, with respect to Policy
Integrity's specific concern regarding project proponent's Alternatives
resource report, as discussed in further detail below, see section
VI.K.xi of this document, the project proponent's Alternatives resource
report must discuss alternatives identified and considered by the
project proponent. However, while a project proponent's study
corridors, potential routes, and range of potential routes are relevant
information, they do not displace the overall alternatives development
process that must take place in consultation with relevant Federal and
non-Federal entities, stakeholders, and the public. That process
remains subject to public comment pursuant to NEPA and other laws.
F. Timing of IIP Process and NOI Issuance
DOE's Proposal
The proposed rule included several provisions addressing the IIP
Process timeline. In the NOPR, DOE proposed to, within 15 calendar days
of receiving an IIP Process initiation request, notify relevant Federal
entities and relevant non-Federal entities of the initiation request
along with a determination that the recipient is either a relevant
Federal entity or a relevant non-Federal entity and whether the project
proponent should participate in the IIP Process. Also, DOE proposed to,
within 30 calendar days of receiving the request, notify the project
proponent and all relevant Federal entities and relevant non-Federal
entities whether the initiation request meets the applicable
requirements. If the request is found to meet the applicable
requirements, DOE proposed, in consultation with the identified
relevant Federal entities, to convene the IIP Process initial meeting
within 30 days of providing notice to the project proponent.
In the NOPR, DOE proposed to, within 15 calendar days after the
initial meeting with the project proponent and relevant entities,
prepare and deliver a draft initial meeting summary to the project
proponent, relevant federal entities, and any non-Federal entities that
participated in the meeting. The proposed rule provided a period of 15
calendar days after receipt of the draft initial meeting summary for
relevant entities to review and provide corrections to DOE.
In the NOPR, DOE proposed, within 15 calendar days of the close of
the 15-day review period, to prepare a final meeting summary that
incorporates
[[Page 35332]]
received corrections, as appropriate, and incorporate the final summary
into the consolidated administrative docket.
DOE proposed in the NOPR to, within 60 calendar days after
receiving a project proponent's review meeting request, notify the
project proponent and all relevant Federal entities and relevant non-
Federal entities that the review meeting request has been accepted. In
the NOPR, DOE proposed, within 30 calendar days after DOE provides
notice that the review meeting request has been accepted, to convene
the review meeting with the project proponent and relevant Federal
agencies.
DOE proposed in the NOPR to, within 15 calendar days after the
review meeting, prepare and deliver a draft review meeting summary to
the project proponent, relevant Federal entities, and any non-Federal
entities that participated in the meeting. In the NOPR, DOE proposed to
provide a period of 15 calendar days after receipt of the draft review
meeting summary for relevant entities to review and provide corrections
to DOE.
DOE proposed in the NOPR to, within 15 calendar days of the close
of the 15-day review period, prepare a final review meeting summary
that incorporates received corrections, as appropriate, and to
incorporate the final summary into the consolidated administrative
docket.
In the NOPR, DOE proposed to, within 60 calendar days after receipt
of the close-out meeting request, notify the project proponent and all
relevant Federal entities and relevant non-Federal entities that the
close-out meeting request has been accepted. DOE also proposed to,
within 30 calendar days of DOE notifying the project proponent that the
close-out meeting request has been accepted, convene the close-out
meeting with the project proponent and all relevant Federal entities.
DOE proposed in the NOPR to, within 15 calendar days after the
close-out meeting, prepare and deliver a draft close-out meeting
summary to the project proponent, relevant federal entities, and any
non-Federal entities that participated in the meeting. In the NOPR, DOE
provided a period of 15 calendar days after receipt of the draft close-
out meeting summary for relevant entities to review and provide
corrections to DOE.
In the NOPR, DOE proposed to, within 15 calendar days of the close
of the 15-day review period, prepare a final close-out meeting summary
that incorporates received corrections, as appropriate, and to
incorporate the final summary into the consolidated administrative
docket.
Summary of Public Comments
DOE received comments from PIOs, SEIA, ClearPath, and AEU that
expressed general support for DOE's proposed IIP Process timelines.
Several commenters suggested specific changes to the IIP Process
timelines proposed in the NOPR. Grid United and ACP recommended
reducing the time between receipt of an initiation request and the date
of the initial meeting to no more than 30 calendar days. NYTOs
recommended that DOE adopt a 60-day maximum period between receipt of a
review meeting request and the convening of the review meeting because
a significant amount of the information would have already been
reviewed as part of the initial meeting.
ACEG suggested that DOE reduce the 45-day summary and report
process after each of the three anchor meetings (initial meeting, the
review meeting, and the close-out meeting) and further suggested that
DOE require a real-time wrap-up at the end of each meeting during which
DOE would provide a meeting summary and participating entities would
immediately make any needed corrections. ACEG also recommended that DOE
reduce the number of days between the initiation request and initial
meeting to 15 days, and reduce the number of days between the close out
meeting request and that meeting to 30 days. Grid United also suggested
shortening the meeting summary process by emphasizing close-out and
action item discussions at the meeting and designating a 15-day period,
thereafter, for finalizing the meeting report.
Several commenters requested more information on the total timeline
for the IIP Process and the CITAP Program. ACP recommended that the IIP
Process include a general timetable to ensure that it does not add
unnecessary costs or delays. Similarly, ACEG and CEBA recommended that
the rule establish a presumptive one-year limit for completion of the
IIP Process. ACORE commented that it supports ACEG's recommendation
that DOE commit that any transmission project will be fully authorized
in under three years and not longer than five years (from initiation of
the pre-application process through issuance of all required Federal
authorizations, including any required notice to proceed). CEBA argued
that, ideally, the IIP Process and application process, including all
environmental review procedures, would be completed within three years.
CEBA added that DOE should work with the project developer on a joint
schedule that may better accommodate the unique nature of the proposed
project. Similarly, ClearPath suggested that the IIP Process timeline
in the rule could serve as a baseline and that DOE should allow a
project proponent to submit a proposed IIP Process schedule. EDF noted
that the IIP Process could take more than one year given the lack of
specific deadlines for specific IIP Process steps. EDF stated that
there are IIP Process requirements such as the project participation
plan that require significant effort and time to develop and that this
development time is not captured in the IIP Process schedule. EDF
recommended that DOE consider specifying a time period for when a
developer must resubmit its review meeting request and close-out
meeting request if either request does not meet the specified
requirements.
CEBA noted that the burden of completing the IIP Process in a
timely manner is highly dependent on the level of effort and resources
brought to bear by the project proponent and suggested that DOE should
anticipate and recognize a broad diversity of project proposals and
afford maximum flexibility for the developer. CEBA further encouraged
DOE to ensure that the IIP Process does not become too complicated and
time consuming, which could undermine the objective reflected in recent
law to shorten the Federal authorization process. Gallatin Power stated
that a lack of structure could allow for the permitting timelines to
remain the same because timeline uncertainty would be shifted to before
the start of the rule's proposed two-year NEPA deadline.
PJM noted that although the NOPR describes the CITAP Program
deadlines as ``binding,'' the May 2023 MOU contemplates a process to
modify the project-specific deadlines. PJM believes that due to this
and the fact that the extensive, mandatory IIP Process is not factored
into the two-year timeline, the actual review and approval process will
most likely take longer than two years. Hence, PJM requested that DOE
carefully reexamine that the proposed revisions will actually aid in
accelerating the current process in a way that will ensure that, at a
minimum, the CITAP Program is able, in all but the most unusual of
cases, to be completed within the two-year time frame or less.
Four commenters, NYTOs, Grid United, ACEG, and ClearPath, expressed
concern over the lack of a deadline for DOE to issue the NOI. Grid
United recommended that the presumptive deadline should be 90 days
after the
[[Page 35333]]
close-out meeting. The NYTOs recommended a presumptive deadline of 45
days after either the close-out meeting or the project proponent's
completion of applicable filing procedures for each involved Federal
agency. ACEG suggested that DOE require the NOI to be issued within 90
days of the project proponent filing all applications and resource
reports. ACP recommended that DOE ensure that as little time as
possible elapses between submittal of an application for an EIS Scoping
NOI, and the subsequent publication in the Federal Register.
DOE Response
This final rule makes several revisions to the DOE decision-making
timelines that reduce the total time for DOE reviews and responses in
the IIP Process by 55 days and the total time for all IIP Process steps
by 100 days. DOE also revises this final rule to establish a deadline
for DOE and any NEPA joint lead agency to issue an NOI to prepare an
environmental review document for the proposed project. That deadline
is established as within 90 days of the later of the IIP Process close-
out meeting or the receipt of a complete application for a Federal
authorization for which NEPA review will be required. DOE makes no
revisions to establish timelines for project proponents or to set a
timeline for the IIP Process or overall CITAP Program. DOE recognizes
that some of the IIP Process is within the government's control, and,
where reasonable, for those pieces of the process this final rule
adopts shorter timelines. For other pieces of the process, however, the
pace is dictated by the project proponent (or factors outside anyone's
control, like inclement weather). For those pieces, DOE has not set
timelines.
Regarding reducing time between meeting requests and meeting
convenings, DOE makes several revisions. DOE agrees that the deadlines
for determining the sufficiency of the initiation request and convening
the initial meeting can be moved forward to streamline evaluation and
coordination. To simplify the initiation request review and reduce the
timeline, in this final rule DOE is combining the deadline for
providing notice to Federal and non-Federal entities under Sec.
900.5(f) of the NOPR with the deadline for providing notice of the
sufficiency determination. Further, this final rule reduces the
timeline for making a sufficiency determination on the initiation
request from 30 calendar days after receiving the initiation request to
20 calendar days. Finally, DOE revises the timeline for convening the
initial meeting from 30 calendar days after providing notice of the
sufficiency determination to 15 calendar days. In sum, the revisions
reduce the maximum time period between receiving the initiation request
and the initial meeting from 60 calendar days to 35 calendar days.
DOE also agrees that the other IIP Process meetings can be convened
in less time. Accordingly, the final rule revises the timeline for
convening the review meeting and close-out meeting from within 30
calendar days of sufficiency determination to within 15 calendar days.
Regarding NYTO's comment that the time between a review meeting request
and the review meeting could be reduced, in this final rule DOE
shortens the period from 90 days to 75 days by convening the review
meeting within 15 days rather than 30 days. However, DOE maintains the
review period for the meeting request at a maximum of 60 days because
DOE and the relevant Federal and relevant non-Federal entities will be
reviewing both the meeting request and the draft submission of the 13
resource reports, which will be substantial and will benefit from
careful review. The review meeting timeline may be significantly
reduced if the project proponent chooses to submit resource reports in
advance, and communicates with DOE, as provided for in the IIP Process.
DOE declines to adopt an immediate meeting summary review process
as suggested by ACEG and Grid United because the content of each of the
meetings is likely to be substantial, with multiple subject matter
experts likely to attend from the relevant Federal entities and
relevant non-Federal entities. DOE does not agree that immediate
summaries will adequately capture an initial draft of the meeting
outcomes. DOE also wishes to clarify that the meeting summary timelines
do not add to the total time of the IIP Process because they are not
precursors to any subsequent milestones. That is, while DOE is
preparing summaries of each meeting, preparation or revisions to the
resource reports or other materials needed for subsequent IIP Process
steps can and should continue. Nonetheless, DOE does agree that these
timelines should be reduced. Consequently, this final rule changes the
deadline for DOE to deliver a meeting summary from 15 calendar days
after the meeting to 10 calendar days after the meeting, for all three
of the IIP Process meetings. Similarly, this final rule shortens the
deadline for a project proponent and other entities to review the
meeting summary from 15 calendar days after receiving the summary to 10
calendar days after receiving the summary. Finally, the deadline for
DOE to provide the final meeting summary is changed from 15 calendar
days after the period for corrections to 10 calendar days after the
period for corrections. DOE notes that since these deadlines are
expressed as calendar days, not work days, DOE is declining additional
reductions to ensure the expectations can be met. In sum, the revisions
reduce the maximum time period between the conclusion of an IIP Process
meeting and the finalization of the meeting summary from 45 calendar
days to 30 calendar days.
In response to comments requesting a general timetable or
presumptive timeline for the IIP Process or the CITAP Program, DOE
makes no changes in this final rule. In the proposed rule and confirmed
here, DOE provides decision-making timelines for DOE's responsibilities
in the IIP Process, leaving the timing of project proponent actions to
trigger the next milestone flexible to account for differences in
projects. When factoring the changes described above, the maximum total
time for DOE reviews and responses in the IIP Process in this final
rule is 185 days. Based on that timeline for DOE decision-making, DOE
expects that a prepared and responsive project proponent could readily
complete the IIP Process within a year.
DOE does not agree that this final rule should set a total time for
the IIP Process or CITAP Program. DOE has chosen to set expeditious
timelines for the actions it and its fellow agencies can control. But
the time required for each IIP process will ultimately depend on the
needs and capabilities of the project proponent. Some projects will be
able to move quickly and complete the process well within a year, while
others may need more time. Even the best-prepared project proponents
may need time to accommodate re-routing or design changes that result
from unforeseen developments in the land acquisition process, the
interconnection process, or other activities that they pursue in
parallel to the IIP Process and that are not entirely within their
control. DOE makes no revisions to establish timelines for project
proponents to resubmit materials in response to EDF's request to
accommodate project proponents with different capabilities. DOE is also
declining to make revisions in response to ClearPath's or CEBA's
recommendations to allow for individualized IIP Process schedules;
again, the overall schedule for the IIP Process will ultimately be
determined by the project proponent. Regarding PJM's comment that the
IIP Process is not accounted for in the two-year
[[Page 35334]]
schedule described in the 2023 MOU, DOE confirms that this is accurate
and reflects the agreement in the 2023 MOU. DOE clarifies that the two-
year timeline begins with the publication of an NOI to prepare an
environmental review document; the IIP Process is intended to precede
the publication of the NOI. As discussed in this section and section
VI.H addressing the standard schedule and project-specific schedules,
DOE has reviewed the timelines set out in this rule and modified
certain timelines in the IIP Process to further streamline where
appropriate.
In response to comments requesting a timeline for NOI issuance, DOE
revises this final rule to state that DOE will issue an NOI within 90
days of the later of the IIP Process close-out meeting or the receipt
of a complete application for a Federal authorization for which NEPA
review will be required. This 90-day timeline aligns with recommended
performance schedules established by the Federal Permitting Improvement
Steering Council (FPISC). DOE does not adopt the recommendation to time
the issuance of the NOI on the receipt of all applications, because
some applications may require more information or project development
before filing. For instance, both the FPISC-recommended performance
schedules \8\ and DOE's draft standard schedule indicate that
applications for Clean Water Act (33 U.S.C. 1251 et seq.) (CWA) or
Rivers and Harbors Act (33 U.S.C. 401 et seq.) permit applications may
be filed after the NOI is issued.\9\
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\8\ ``Recommended Performance Schedules.'' Permitting Dashboard:
Federal Infrastructure Projects, FEDERAL PERMITTING IMPROVEMENT
STEERING COUNCIL, Nov. 2023, <a href="http://www.permits.performance.gov/sites/permits.dot.gov/files/2023-11/RPS_November%202023.pdf">www.permits.performance.gov/sites/permits.dot.gov/files/2023-11/RPS_November%202023.pdf</a>.
\9\ ``Draft Standard Schedule.'' Grid Deployment Office, United
States Department of Energy, Aug. 2023, <a href="http://www.energy.gov/sites/default/files/2023-08/CITAP-Standard-Schedule-Draft.pdf">www.energy.gov/sites/default/files/2023-08/CITAP-Standard-Schedule-Draft.pdf</a>.
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G. IIP Process Initiation Request
DOE's Proposal
To participate in the CITAP Program, DOE proposed to require a
project proponent to submit an IIP Process initiation request to DOE
that included a summary of the qualifying project; associated maps,
geospatial information, and studies (provided in electronic format); a
project participation plan; and a statement regarding the proposed
qualifying project's status pursuant to Title 41 of the Fixing
America's Surface Transportation Act (FAST-41) (42 U.S.C. 4370m-
2(b)(2)).
Summary of Public Comments
DOE received two comments on the contents of the initiation request
for the IIP Process. LTA recommended that DOE add sufficient and
satisfactory title work for the real property through which an electric
transmission facility will pass to the list of required materials for
an initiation request in order to identify conserved lands. ACEG stated
that additional clarity is needed on how the CITAP program will align
with FAST-41 and stated that a project proponent might not be able to
state whether the project is covered under FAST-41 in the IIP Process
initiation request. ACEG also stated it is unclear how DOE will
coordinate with FPISC if the project is covered under the CITAP Program
and FAST-41.
DOE Response
In this final rule DOE maintains the required initiation request
materials proposed in the NOPR with no revisions.
In response to the request to add title work to the requirements,
DOE does not make this revision because DOE believes this would be
overly burdensome on the project proponent at the initiation stage of
the IIP Process, when a project proponent may not have a finalized
route.
In response to the request for more information on alignment with
FAST-41, DOE first provides clarification on the provision in the
proposed rule. In the proposed rule, DOE would request the status of a
project under FAST-41 at the time of the initiation request. But this
provision would not ask the project proponent to speculate as to
whether the project may be covered in the future. DOE believes the
project proponent will be able to state if the project has applied for
coverage under FAST-41 and if a coverage determination has been made at
the time of the initiation request, and therefore DOE makes no changes
in this final rule. Additionally, DOE provides no revisions regarding
coordination with the Permitting Council because, as noted by the
commenter, a project's FAST-41 status may change during the CITAP
Program and therefore DOE expects that coordination between the
Permitting Council and DOE will vary on a project-by-project basis.
Examples of such coordination are described in the 2023 MOU, and DOE
designed the CITAP Program timelines to work in harmony with the
Permitting Council processes accordingly.
H. Standard and Project-Specific Schedules
DOE's Proposal
In the NOPR, DOE proposed to establish intermediate milestones and
ultimate deadlines for Federal authorizations and related environmental
reviews through the introduction of standard and project-specific
schedules in accordance with the terms of FPA section 216(h)(4) and of
the 2023 MOU. Specifically, DOE proposed to periodically publish a
standard schedule identifying the steps needed to complete decisions on
all Federal environmental reviews and authorizations for a qualifying
project along with the recommended timing for each step. In addition,
DOE proposed to establish project-specific schedules for each project
participating in the IIP Process, to set binding deadlines by which
Federal authorizations and related environmental reviews for a
particular project must be completed. DOE proposed to base the project-
specific schedule on the standard schedule, to develop it in
consultation with the project proponent and other Federal agencies, and
to finalize it at the conclusion of the IIP Process.
Summary of Public Comments
DOE received several comments regarding the standard schedule and
the development of project-specific schedules. Two commenters supported
these provisions. The State of Colorado Governor's Office stated its
belief that the standard schedule and the project-specific schedule
will provide added flexibility to each project and expressed hope that
doing so will minimize the time of the approval process. ClearPath
expressed its support for the development of the standard schedule to
serve as a baseline for developing project-specific schedules.
Three commenters raised concerns that the two-year timeline in the
standard schedule and presumed for the project-specific schedules was
too long, and a fourth commenter, PJM, commented in favor of the two-
year timeline, but expressed concerns that it may still not adequately
expedite the Federal permitting process. OSPA stated that the proposed
two-year EIS process is still too long. Alan Leiserson recommended that
the standard schedule deadline should be set at one year, or as soon
thereafter as practicable, to be consistent with section 216(h). AEP
recommended setting one-year timelines for environmental assessments
and two years for environmental impact statements. PJM proposed that
DOE clarify in the proposed revisions that
[[Page 35335]]
while developing the binding, project-specific milestones the relevant
agencies will endeavor to shorten the two-year timeline based on the
proposed project's scope and location in conjunction with the relevant
statutory requirements.
On the other hand, two commenters raised concerns that the two-year
timeline was too short. CBD cautioned against setting any timelines for
environmental reviews because it could cause agencies to cut corners
and result in increased opposition to proposed projects. Similarly,
AZGFD expressed concerns that expediting the approval process to
facilitate rapid transmission infrastructure development may have
unforeseen impacts on wildlife resources. AZGFD argued that although
establishing a standard schedule would help in streamlining the
process, some projects might require additional time for completion of
the NEPA analysis and identification of appropriate conservation
measures. AZGFD encouraged DOE to have provisions for independent
process-specific timeframes, rather than a standard schedule, to allow
adequate time for evaluation and assessment of potential impacts. AZGFD
requested DOE to provide clear guidelines on establishment of review
times for cooperating or participating agencies with statutory
authority or special expertise related to proposed actions. AZGFD
further mentioned that it is unclear whether the proposed two-year
timeframe applies to the IIP Process, the NEPA process, or the combined
process.
Three commenters suggested the project proponent provide more input
into the development of the project-specific schedule. ClearPath
recommended that DOE allow project proponents to propose a project-
specific schedule. Similarly, ACEG and Grid United proposed that the
project proponent have the opportunity to provide DOE and the relevant
entities with a draft project-specific schedule before the initial
meeting, which would be discussed at the initial meeting. Grid United
also suggested requiring ongoing consultation between the project
proponent, DOE, and the relevant agencies as part of finalizing the
project-specific schedule. PJM suggested that DOE include a provision
for revisiting the CITAP Program at least every two years to gauge
whether the process is meeting its intended goals.
DOE Response
In this final rule, DOE retains without revision the proposal in
the NOPR to publish a standard schedule for completing environmental
review and decision making for Federal authorizations for qualifying
projects within two-years and to develop a proposed schedule with the
NEPA joint lead agency and the relevant Federal entities on a project-
specific basis during the IIP Process.
Regarding requests to reduce the two-year time frame to complete
environmental reviews, DOE makes no changes to this final rule because
DOE maintains its conviction that, as a general matter, for
transmission projects of the type that meet the qualifying project
definition, a two-year timeframe is the shortest practicable length of
time necessary to consider applications for authorizations under
relevant Federal laws and complete the necessary environmental reviews.
Accordingly, DOE concludes that a two-year timeline is likely to be
consistent with DOE's statutory obligations under FPA section 216(h).
However, DOE notes that the rule does not preclude DOE, in consultation
with relevant agencies, from setting project-specific timelines that
are shorter than the two-year timeline, should such a timeline be
practicable.
Regarding concerns that the two-year timeframe is too short and
could reduce the quality of environmental review or impact wildlife
resources, DOE makes no changes to final rule because the CITAP Program
does not alter any Federal environmental review standards or
responsibilities towards wildlife resources. Additionally, this two-
year timeline is consistent with the timelines established by the
Fiscal Responsibility Act of 2023. Further, DOE notes that the standard
schedule is a general framework for environmental review and
authorizations, but that the proposed and now this final rule require
that DOE develop a schedule specific to each project that addresses the
unique permitting and review requirements for that project. In
addition, as explained in the proposed rule, DOE anticipates that the
IIP Process will inform the environmental review process, such that a
two-year timeline is reasonable. DOE believes this structure
sufficiently addresses AZGFD's concerns.
Regarding the request to establish a standard schedule for EAs, DOE
makes no changes to this final rule because the CITAP Program focuses
DOE resources on projects expecting to complete an EIS, and
adjustments, including to schedules, for any project requiring an EA
will be addressed on a project-specific basis. Accordingly, DOE finds
it unnecessary to establish a timeline for EAs in the text of this
final rule but notes that the rule does not prevent DOE from publishing
a standard schedule for EAs if the agency finds it necessary.
Regarding the suggestions that DOE allow the project proponent to
propose a project-specific schedule or provide additional opportunities
for the project proponent to discuss the project-specific schedule with
DOE and the relevant Federal entities, DOE notes that nothing in the
rule prevents the project proponent from proposing a schedule but DOE
maintains the statutory authority to set and maintain the schedule.
Additionally, as proposed and finalized here, DOE requires the project
proponent to submit information on the intended or desired timelines
for various Federal applications as part of each meeting request during
the IIP Process. DOE is required to present a proposed project-specific
schedule at the review meeting and a final project-specific schedule at
the close-out meeting. Project proponents are encouraged to communicate
with DOE and relevant entities throughout the IIP Process. Project
proponents are welcome to submit any information they believe will help
DOE create the project-specific schedule, including a draft schedule,
through any of these mechanisms. DOE believes these requirements
provide sufficient opportunity for the project proponent to give input
on the schedule and therefore makes no changes to the rule in response
to these comments.
In response to PJM's suggestion that DOE revisit the CITAP Program
every two years, DOE makes no revisions in this final rule. DOE will
evaluate the CITAP Program as appropriate, which may be based on time,
the number of projects DOE has coordinated in the process, or other
relevant factors.
I. Selection of NEPA Lead and Joint Lead Agencies and Environmental
Review
DOE's Proposal
Section 216(h)(2) of the FPA authorizes DOE to act as the lead
agency to coordinate Federal authorizations and related environmental
reviews required to site an interstate electric transmission facility.
DOE proposed in the NOPR that DOE serve as the NEPA lead agency to
prepare an EIS to serve the needs of all relevant entities. In the
NOPR, DOE proposed that a NEPA joint lead agency may be designated no
later than the IIP Process review meeting. The NEPA joint lead agency,
if any, would be the Federal entity with the most significant interest
in the management of the Federal lands or waters that would be
traversed or affected by the qualifying project, and DOE would make
this determination in consultation with all Federal entities that
manage Federal
[[Page 35336]]
lands or waters affected. The proposed rule also provided that for all
qualifying projects, DOE and the relevant Federal entity or entities
would serve as co-lead agencies for consultation under the ESA and for
compliance with section 106 of the NHPA.
After the IIP Process close-out meeting and once an application has
been received in accordance with the project-specific schedule, the
proposed rule would require DOE and the NEPA joint lead agency to
prepare an EIS for the qualifying project, which is meant to serve the
needs of all relevant Federal entities. The proposed rule would also
require DOE and the NEPA joint lead agency to consider the materials
developed throughout the IIP Process; consult with relevant Federal
entities and relevant non-Federal entities; draft the EIS, working with
contractors, as appropriate; publish all completed environmental review
documents; and identify the full scope of alternatives for analysis in
consultation with the relevant Federal entities.
Finally, the proposed rule would also require the Federal entities
or non-Federal entities that are responsible for issuing a Federal
authorization for the qualifying project to identify all information
and analysis needed to make the authorization decision, identify all
alternatives that need to be included, and to use the EIS as the basis
for their Federal authorization decision on the qualifying project to
the extent permitted by law.
Summary of Public Comments
DOE received several comments addressing NEPA lead and joint lead
designation and the environmental review DOE will undertake following
the IIP Process.
Regarding the proposal to establish DOE as the NEPA lead agency,
PJM and the State of Colorado Governor's Office expressed support. The
State of Colorado Governor's Office noted that DOE as the lead NEPA
agency could effectively lead an iterative, interagency process to
ensure applications for Federal authorizations are ready for review and
can meet the specified timelines. It also noted that having one agency
leading the NEPA process reduces duplication of work and improves
efficiency.
DOE received comments from CBD, PIOs, and Gallatin Power regarding
the process for designation of a joint lead agency. CBD expressed
concern that DOE would not have the expertise to evaluate impacts of
transmission projects on ecosystems, species, and the environment, and
recommended that the rules should require the designation of a land use
agency as the NEPA joint lead agency. Gallatin Power commented that DOE
should designate a joint lead agency that has experience permitting
transmission projects during the promulgation of the rule and should
implement a practice of identifying a joint lead agency prior to an IIP
Initial Meeting instead of after the completion of the IIP Process.
Gallatin Power argues that these joint lead agency designations will
allow DOE to rely on Federal agencies with substantial experience in
permitting and enable DOE to expedite approvals through the adoption of
invaluable insights and best practices. PIOs challenged the proposed
rule's assumption that only one agency can serve as a joint lead agency
on the basis that the assumption is a departure from the statute and
CEQ regulations both of which allow multiple agencies to serve as
``joint lead agencies.'' PIOs encouraged DOE to consider whether
allowing multiple joint lead agencies could better comport with NEPA
and CEQ regulations and better realize the proposed rule's goal of
improving efficiency in Federal analysis and decision-making.
Three commenters suggested that the CITAP Program issue a joint
record of decision for projects. CATF, PIOs, and SEIA recommended that
DOE should ensure that the CITAP Program is in alignment with the
congressional direction and best practices for NEPA. They recommended
that DOE provide that, where feasible, agency decisions should be
issued together in a joint record of decision, or provide greater
clarity as to why DOE declines to require a joint record of decision.
These commenters noted that requiring a joint record of decision aligns
with recent revisions to NEPA and CEQ's NEPA regulations and promotes
efficiency and coordination. They also suggested that a joint record of
decision effectuates Congressional direction that the basis for all
decisions under Federal law use DOE's environmental review and reduces
confusion about how to seek judicial review.
Multiple commenters submitted comments on the scope of
environmental reviews and considerations. AEP agreed that DOE should
carry out its statutory obligation to prepare a single EIS sufficient
for the purposes of all Federal authorizations necessary to site a
qualifying project. AEP further added that, to the extent practicable,
the EIS should also include any relevant information to satisfy state
permitting requirements to avoid duplication of reporting requirements.
PIOs noted that the rule's inclusion of a requirement to assess climate
impacts is well-founded in NEPA's plain text, its implementing
regulations, authoritative guidance, and judicial precedent. PIOs
further stated that DOE has both the authority and the responsibility
to require assessments of climate related impacts, as NEPA's plain text
explicitly includes ``reasonable foreseeable environment effects.''
However, PIOs also stated that DOE should use existing regulatory and
scientific tools that CEQ makes available to assist other Federal
agencies with their legally required analysis, and that the resulting
analysis of climate impacts need not be perfect. AZGFD noted that when
completing the IIP Process and developing the EIS, it is important to
ensure that adequate consideration is given to wildlife and wildlife
habitat resources along the project route, that effects to those
resources and areas are not generalized for the full project route, and
that, as necessary, suitable conservation measures are identified for
specific areas and resources. AZGFD stated that it is also important to
consider the varying purposes, management plans, and land use goals or
mandates for lands managed by different Federal agencies. Hence, AZGFD
requested further information on how the proposed rule and development
of a single EIS by DOE will ensure that wildlife and wildlife habitat
resources are considered and accommodated through the IIP Process. ACP
mentioned that CEQ is simultaneously conducting revisions to its
regulations implementing NEPA and suggested that DOE should ensure that
the CITAP Program and any potential DOE rulemaking aligns with CEQ's
NEPA rulemaking.
DOE received multiple recommendations for streamlining
environmental review. OSPA asserted that a Programmatic Environmental
Impact Statement (PEIS) would dramatically speed the deployment of
transmission in chronically underserved areas of the Upper Great
Plains. Similarly, ACP suggested that DOE develop resource-specific
programmatic NEPA reviews to reduce the administrative burden and legal
risk of project-specific reviews. AEP recommended allowing for greater
use of programmatic reviews and categorical exclusions. Alan Leiserson
said DOE should use more categorical exclusions for clean energy
projects. AEP recommended modifying thresholds for Federal agencies
when determining what requires development of an environmental
document. OSPA additionally recommended that DOE should expressly make
EIS underlying
[[Page 35337]]
data available to Federal and non-Federal permitting entities for
purposes of developing a PEIS. OSPA recommended that THPOs explicitly
have access to this data as well as well as any consultants hired by
THPOs.
Three commenters suggested DOE include statements about what
information or resources could be used in the environmental review. ACP
argued that the resource reports are useful beyond the IIP Process and
so this final rule should require that materials and findings in
resource reports be used in the NEPA EIS process. ACP further noted
that ideally this authority for consideration of the resource reports
would be DOE's alone rather than DOE and the joint lead agency. AEP
recommended stating that Federal agencies can use existing data and
studies in determining when to develop an environmental document. AEP
also recommended allowing for greater project proponent involvement in
preparing environmental documents. DOE received the following
additional comments:
CBD recommended that DOE prioritize development on already degraded
lands, existing rights of way, and other areas where communities will
not object to new infrastructure. ACORE noted that there may be
projects that do not participate in the CITAP Program, but that will
still have DOE as the lead agency. Accordingly, ACORE recommended that
DOE clarify which of CEQ's NEPA provisions, including timing
requirements, would apply to these types of projects.
DOE Response
In this final rule, DOE confirms its role as NEPA lead agency, the
process for selecting a joint lead agency, and the responsibilities DOE
will undertake for environmental review, with minor revisions in
response to these comments. DOE revises this final rule to state that
DOE and relevant Federal entities shall issue, except where
inappropriate or inefficient, a joint decision document.
Regarding the joint lead agency selection process, DOE makes no
revisions in response to these comments. As proposed and confirmed
here, the designation of a joint lead agency will be determined by DOE
and Federal entities that manage Federal lands or waters by no later
than the IIP Process review meeting. DOE believes the process for
designating a joint lead, if any, is consistent with NEPA implementing
regulations and provides flexibility to identify the relevant expertise
among the relevant entities. Further, since the rule requires DOE to
engage Federal land- and water-management agencies in the process, DOE
is not persuaded that including a joint lead requirement is necessary,
as suggested by CBD and Gallatin Power, and instead believes it is best
to leave that determination up to the Federal entities on a project-
specific basis. Regarding the timing of the designation, DOE notes that
this final rule confirms the same timing as the proposed rule,
requiring the designation by the review meeting, not the completion of
the IIP Process as indicated by the commenter. DOE does not agree that
a designation requirement is appropriate before the initial meeting
because DOE believes the initial meeting provides important project
information that could inform any joint lead designation. In response
to the PIO's comment about multiple joint leads, DOE maintains the
presumption in the rule that no more than one joint lead agency will be
designated to ensure efficiency and effectiveness, which will enable
DOE to meet its coordination and scheduling obligations under FPA
section 216(h).
In response to the recommendation that the CITAP Program issue
joint records of decision, DOE agrees with the commenters that this
would be consistent with NEPA as amended by the Fiscal Responsibility
Act of 2023. DOE also agrees that a policy in favor of joint records of
decision would be consistent with the purpose of FPA section 216(h) and
would enhance DOE's coordinating function. Accordingly, DOE revises
this final rule to provide that, except where inappropriate or
inefficient, the Federal agencies shall issue a joint record of
decision that includes all relevant Federal authorizations and, to
ensure consistency with the requirements of section 216(h), includes,
if applicable, the determination by the Secretary of Energy of a
duration for each land use authorization issued under section
216(h)(8)(A)(i).
Regarding the scope of environmental reviews, DOE makes no changes
to this final rule because the rule as proposed did not change any of
DOE or other Federal entities' responsibilities to comply with existing
NEPA regulations and environmental review laws. DOE will endeavor to
incorporate State requirements in the environmental review and makes no
revisions to address this because DOE believes this will be
accomplished through the inclusion of relevant non-Federal entities in
the IIP Process. Similarly, DOE will endeavor to follow NEPA best
practices and use available tools and does not find that these comments
require any revisions to the rule.
Regarding ACP's request to require the use of resource reports in
the preparation of the environmental review document, AEP's request
that DOE include a provision that existing data can be used, and AEP's
recommendation that DOE allow for greater project proponent involvement
in preparing environmental documents, DOE makes no changes in this
final rule. Data requirements for environmental reviews are outside of
scope of this rulemaking, which concerns only the implementation of
DOE's coordinating authority under FPA section 216(h) and does not
address the substance of NEPA compliance by DOE or its fellow agencies.
But DOE reiterates that the purpose of the resource reports is to
inform environmental review (and agency authorizations), and affirms
its commitment to adhering to best practices for leveraging existing
data sources. Comments suggesting revised environmental review
thresholds, the use of categorical exclusions, and PEISs, are likewise
outside the scope of this rulemaking.
In response to CBD's request that DOE prioritize development on
already degraded lands, DOE makes no changes to this final rule as this
is beyond the scope of DOE's coordinating authority. While DOE and its
fellow agencies may encourage development on degraded lands, DOE lacks
authority to impose any requirement to that effect in the final rule.
In response to ACORE's request for more information on how DOE will
serve as lead agency for projects that are not in the CITAP Program,
DOE makes no changes to this final rule as this is beyond the scope of
the rulemaking, which is the implementation of DOE's coordinating
authority under FPA section 216(h).
J. Section 106 of the NHPA
DOE's Proposal
In the NOPR, DOE explained that the project proponent resource
reports are intended to develop data and materials that will facilitate
Federal entities' review of the project proponent's applications under
a number of Federal statutes, including section 106 of the NHPA. DOE
also explained that this initial information-gathering phase precedes
the formal consultation process under section 106. DOE proposed to
authorize project proponents, as applicants to the CITAP Program, to
begin section 106 consultation during the IIP Process, but only at such
time as a project is sufficiently well developed to allow formal
consultation to begin. DOE pr
[…truncated; see source link]Indexed from Federal Register on May 1, 2024.
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