Applications for Permits To Site Interstate Electric Transmission Facilities

Federal RegisterMay 29, 2024

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 50 and 380

[Docket No. RM22-7-000; Order No. 1977]

Applications for Permits To Site Interstate Electric Transmission Facilities

AGENCY:

Federal Energy Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Federal Energy Regulatory Commission amends its regulations governing applications for permits to site electric transmission facilities under the Federal Power Act, as amended by the Infrastructure Investment and Jobs Act of 2021, and amends its National Environmental Policy Act procedures.

DATES:

This rule is effective July 29, 2024.

FOR FURTHER INFORMATION CONTACT:

Maggie Suter (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6344,

magdalene.suter@ferc.gov

Tara DiJohn Bruce (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8671,

tara.bruce@ferc.gov

SUPPLEMENTARY INFORMATION:

Table of Contents

Paragraph

Nos.

I. Background

A. Energy Policy Act of 2005 and FPA Section 216

B. Order No. 689

Piedmont

California Wilderness

Judicial Decisions

D. IIJA Amendments to FPA Section 216

E. Notice of Proposed Rulemaking

II. Discussion

A. Commission Jurisdiction and State Siting Proceedings

1. IIJA Amendments and Commission Jurisdiction Under FPA Section 216(b)(1)

2. Commencement of Pre-Filing

B. Eminent Domain Authority and Applicant Efforts To Engage With Landowners and Other Stakeholders

1. NOPR Proposal

2. Comments

3. Commission Determination

C. Environmental Justice Public Engagement Plan

1. NOPR Proposal

2. Comments

100

3. Commission Determination

109

D. Revisions to 18 CFR Part 50

119

1. Section 50.1—Definitions

119

2. Section 50.3—Filing and Formatting Requirements

159

3. Section 50.4—Stakeholder Participation

160

4. Section 50.5—Pre-Filing Procedures

223

5. Section 50.6—General Content of Applications

246

6. Section 50.7—Application Exhibits

257

7. Section 50.11—General Permit Conditions

261

8. Clarifying Revisions to 18 CFR Part 50

265

E. Additional Considerations Raised by Commenters

266

1. Grid-Enhancing Technologies

267

2. Use of Existing Rights-of-Way

269

3. Project Costs

273

4. Miscellaneous

275

F. Regulations Implementing NEPA

279

1. Consultation With CEQ

281

2. DOE Coordination

285

3. NEPA Document Procedures

295

4. Revisions to 18 CFR 380.16

301

5. Revisions to 18 CFR 380.13 and 380.14

411

III. Information Collection Statement

412

IV. Environmental Analysis

426

V. Regulatory Flexibility Act

427

VI. Document Availability

431

VII. Effective Date and Congressional Notification

434

1. On November 15, 2021, the Infrastructure Investment and Jobs Act (IIJA) became law.

The IIJA, among other things, amended section 216 of the Federal Power Act (FPA),

which provides for Federal siting of electric transmission facilities under certain circumstances. The Federal Energy Regulatory Commission (Commission) is amending its regulations governing applications for permits to site electric transmission facilities to ensure consistency with the IIJA's amendments to FPA section 216, to modernize certain regulatory requirements, and to incorporate other updates and clarifications to provide for the efficient and timely review of permit applications.

Public Law 117-58, sec. 40105, 135 Stat. 429 (2021).

16 U.S.C. 824p.

I. Background

A. Energy Policy Act of 2005 and FPA Section 216

2. The authority to site electric transmission facilities has traditionally resided solely with the States; however, the enactment of the Energy Policy Act of 2005 (EPAct 2005)

established a limited Federal role in electric transmission siting by adding section 216 to the FPA. Under section 216, Federal siting authority for electric transmission facilities (as defined in that section) is divided between the Department of Energy (DOE) and the Commission. Section 216(a) directs DOE, on a triennial basis, to conduct a study and issue a report on electric transmission congestion and authorizes DOE to designate certain transmission-constrained or congested geographic areas as national interest electric transmission corridors (National Corridors). Section 216(b) authorizes the Commission in certain instances to issue permits for the construction or modification of electric transmission facilities in areas that DOE has designated as National Corridors.

Public Law 109-58, sec. 1221, 119 Stat. 594 (Aug. 8, 2005) (amended 2021).

3. As originally enacted in EPAct 2005, section 216(b)(1) authorized the Commission to issue permits to construct or modify electric transmission facilities in a National Corridor if it found that: (A) a State in which such facilities are located lacks the authority to approve the siting of the facilities or consider the interstate benefits expected to be achieved by the proposed construction or modification of transmission facilities in the State;

(B) the permit applicant is a transmitting utility but does not qualify to apply for a permit or siting approval in a State because the applicant does not serve end-use customers in the State;

or (C) a State commission or entity with siting authority has withheld approval of the facilities for more than one year after an application is filed or one year after the designation of the relevant National Corridor, whichever is later, or the State conditions the construction or modification of the facilities in such a manner that the proposal will not significantly reduce transmission congestion in interstate commerce or is not economically feasible.

16 U.S.C. 824p(b)(1)(A) (prior to the IIJA amendment in 2021). Instances in this rule citing the statute prior to the IIJA amendment in 2021 are noted by a parenthetical for clarity.

Id.

824p(b)(1)(B).

Id.

824p(b)(1)(C) (prior to the IIJA amendment in 2021).

4. In addition, sections 216(b)(2) through (6) required the Commission, before issuing a permit, to find that the proposed facilities: (1) will be used for the transmission of electricity in interstate commerce; (2) are consistent with the public interest; (3) will significantly reduce transmission congestion in interstate commerce and protect or benefit consumers; (4) are consistent with sound national energy policy and will enhance energy independence; and (5) will maximize, to the extent reasonable and economical, the transmission capabilities of existing towers or structures.

Id.

824p(b)(2)-(6).

5. Section 216(e) authorized a permit holder, if unable to reach agreement with a property owner, to use eminent domain to acquire the necessary right-of-way for the construction or modification of transmission facilities for which the Commission has issued a permit under section 216(b).

Federal and State-owned land was expressly excluded from the purview of section 216(e) and thus could not be acquired via eminent domain.

Id.

824p(e)(1) (prior to the IIJA amendment in 2021).

Id.

6. Section 216(h)(2) designated DOE as the lead agency for purposes of coordinating all Federal authorizations and related environmental reviews needed to construct proposed electric transmission facilities. To ensure timely and efficient reviews and permit decisions, under section 216(h)(4)(A), DOE was required to establish prompt and binding intermediate milestones and ultimate deadlines for all Federal reviews and authorizations required for a proposed electric transmission facility.

Under section 216(h)(5)(A), DOE, as lead agency, was required to prepare a single environmental review document, in consultation with other affected agencies, that would be used as the basis for all decisions for proposed projects under Federal law.

Under FPA section 216(h)(6)(A), if any agency has denied a Federal authorization required for a transmission facility or has failed to act by the deadline established by the Secretary of DOE, the applicant or any State in which the facility would be located may file an appeal with the President. 16 U.S.C. 824p(h)(6)(A).

7. On May 16, 2006, the Secretary of DOE delegated to the Commission authority to implement parts of section 216(h), specifically paragraphs (2), (3), (4)(A)-(B), and (5).

Specifically, the Secretary delegated DOE's lead agency responsibilities to the Commission for the purposes of coordinating all applicable Federal authorizations and related environmental reviews and preparing a single environmental review document for proposed facilities under the Commission's siting jurisdiction.

See

DOE Delegation Order No. S1-DEL-FERC-2006 (previously DOE Delegation Order No. 00-004.00A).

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

8. In August 2006, DOE issued a Congestion Study pursuant to section 216(a), which identified two critically congested areas in the Mid-Atlantic and Southern California.

Based on the results of the Congestion Study, in October 2007, DOE formally designated two National Corridors, the Mid-Atlantic Corridor and the Southwest Area Corridor.

DOE, National Electric Transmission Congestion Study, 71 FR 45047 (Aug. 8, 2006).

DOE, National Electric Transmission Congestion Report, 72 FR 56992 (Oct. 5, 2007).

B. Order No. 689

9. Section 216(c)(2) of the FPA required the Commission to issue rules specifying the form of, and the information to be contained in, an application for proposed construction or modification of electric transmission facilities in National Corridors, and the manner of service of notice of the permit application on interested persons. Pursuant to this statutory requirement, on November 16, 2006, the Commission issued Order No. 689, which implemented new regulations for section 216 permit applications by adding part 50 to the Commission's regulations.

In addition, Order No. 689 adopted modifications to the Commission's regulations implementing the National Environmental Policy Act of 1969 (NEPA)

in part 380 of the Commission's regulations to ensure that the Commission is provided sufficient information to conduct an environmental analysis of a proposed electric transmission project.

Regulations for Filing Applications for Permits to Site Interstate Elec. Transmission Facilities,

Order No. 689, 71 FR 69440 (Dec. 1, 2006) 117 FERC ¶ 61,202 (2006),

reh'g denied,

119 FERC ¶ 61,154 (2007).

42 U.S.C. 4321

et seq. See also

18 CFR pt. 380 (2023) (Commission's regulations implementing NEPA).

10. In Order No. 689, the Commission addressed a question of statutory interpretation raised by commenters concerning the text of section 216(b)(1)(C), which, at the time, conferred jurisdiction to the Commission whenever a State had withheld approval of a State siting

application for more than one year.

The Commission interpreted the phrase “withheld approval” to include any action that resulted in an applicant not receiving State approval within one year, including a State's express denial of an application to site transmission facilities.

Order No. 689, 117 FERC ¶ 61,202 at PP 24-31,

reh'g denied,

119 FERC ¶ 61,154 at PP 7-23.

Order No. 689, 117 FERC ¶ 61,202 at P 26,

reh'g denied,

119 FERC ¶ 61,154 at P 11.

C. Piedmont & California Wilderness Judicial Decisions

11. In 2009, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit), in

Piedmont Environmental Council

FERC

held that the Commission's interpretation of “withheld approval” was contrary to the plain meaning of the statute, and that the Commission's siting authority does not apply when a State has affirmatively denied a permit application within the one-year deadline.

In addition, the Fourth Circuit vacated the Commission's transmission-related amendments to its NEPA regulations, finding that the Commission had failed to consult with the Council on Environmental Quality (CEQ) before adopting the revisions.

558 F.3d 304 (4th Cir. 2009),

cert. denied,

558 U.S. 1147 (2010) (

Piedmont

Id.

at 313.

Id.

at 319, 320.

12. Two years later, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), in

California Wilderness Coalition

DOE,

considered petitions for review challenging DOE's actions following the enactment of section 216.

The Ninth Circuit vacated DOE's August 2006 Congestion Study and October 2007 National Corridor designations, finding that the agency: (1) failed to properly consult with affected States in preparing the Congestion Study, as required by section 216; and (2) failed to consider the environmental effects of the National Corridor designations under NEPA.

631 F.3d 1072 (9th Cir. 2011).

Id.

at 1096, 1106.

13. Since the Fourth Circuit and Ninth Circuit decisions, DOE has not designated any National Corridors, and the Commission has not received any applications for permits to site electric transmission facilities.

D. IIJA Amendments to FPA Section 216

14. On November 15, 2021, the IIJA amended section 216 of the FPA. With respect to DOE's authority, the IIJA amended section 216(a)(2) to expand the circumstances in which DOE may designate a National Corridor. In addition to geographic areas currently experiencing transmission capacity constraints or congestion that adversely affects consumers, amended section 216(a)(2) provides that DOE may designate National Corridors in geographic areas expected to experience such constraints or congestion. The IIJA also amended section 216(a)(4) to expand the factors that DOE may consider in determining whether to designate a National Corridor.

DOE may consider the following factors when determining whether to designate a National Corridor under section 216(a)(4): (1) the economic vitality and development of the corridor, or the end markets served by the corridor, may be constrained by lack of adequate or reasonably priced electricity; (2) economic growth in the corridor, or the end markets served by the corridor, may be jeopardized by reliance on limited sources of energy and a diversification of supply is warranted; (3) the energy independence or energy security of the United States would be served by the designation; (4) the designation would be in the interest of national energy policy; (5) the designation would enhance national defense and homeland security; (6) the designation would enhance the ability of facilities that generate or transmit firm or intermittent energy to connect to the electric grid; (7) the designation maximizes existing rights-of-way and avoids and minimizes, to the maximum extent practicable, and offsets to the extent appropriate and practicable, sensitive environmental areas and cultural heritage sites; and (8) the designation would result in a reduction in the cost to purchase electric energy for consumers.

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

This statutory amendment resolves the jurisdictional issue at the heart of

Piedmont

by explicitly giving the Commission siting authority when a State has denied an application.

16 U.S.C. 824p(b)(1)(C).

Id.

824p(b)(1)(C)(iii).

16. Additionally, the IIJA amended section 216(e), which grants a permit holder the right to acquire the necessary right-of-way by eminent domain.

As amended, section 216(e)(1) requires the Commission to determine, as a precondition to a permit holder exercising such eminent domain authority, that the permit holder has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process.

Id.

824p(e)(1).

Id.

E. Notice of Proposed Rulemaking

17. On December 15, 2022, the Commission issued a Notice of Proposed Rulemaking (NOPR), which proposed revisions to its regulations in parts 50 and 380 governing applications for permits to site electric transmission facilities.

Among other revisions, the Commission proposed changes to address the IIJA's amendments to section 216 of the FPA.

Applications for Permits to Site Interstate Elec. Transmission Facilities,

88 FR 2770 (Jan. 17, 2023), 181 FERC ¶ 61,205 (2022) (NOPR),

errata notice,

182 FERC ¶ 61,020 (2023). The Commission's errata notice for the NOPR, issued on January 17, 2023, reflected certain stylistic revisions requested by the

Federal Register

as well as minor, non-substantive editorial revisions.

18. First, the Commission proposed revisions to make clear that the Commission has the authority to issue permits for the construction or modification of electric transmission facilities in a National Corridor if a State has denied a siting application.

Id.

P 18.

19. Second, the Commission announced a proposed policy change that would allow an applicant that is subject to a State siting authority to seek to commence the Commission's pre-filing process once the relevant State siting applications have been filed.

The Commission explained that this change, if adopted, would eliminate the Commission's prior policy of waiting one year after the relevant State siting applications have been filed before allowing an applicant to seek to commence the Commission's pre-filing process. The Commission further proposed that, one year after the commencement of the Commission's pre-filing process, if a State has not made a determination on an application before it, the State will have 90 days to provide comments to the Commission on any aspect of the pre-filing process, including any information submitted by the applicant.

Id.

PP 20-21.

Id.

P 23.

20. Third, the Commission proposed to codify an Applicant Code of Conduct.

The Commission explained that compliance with the Applicant Code of Conduct is one way an applicant may demonstrate that it has made good faith efforts to engage with landowners and other stakeholders early

in the applicable permitting process as required by section 216(e)(1) of the FPA as a predicate to the use of eminent domain.

The Commission also proposed that an applicant may choose an alternative method of demonstrating that it meets the “good faith efforts” standard, so long as it explains how its alternative method is equal to or better than compliance with the Applicant Code of Conduct as a means of ensuring that the statutory standard is met.

Id.

PP 26-27.

Id.

P 28.

21. Fourth, the Commission proposed to add a requirement that applicants develop and file an Environmental Justice Public Engagement Plan as part of their Project Participation Plan, which is already required early in the pre-filing process.

The Commission explained that an Environmental Justice Public Engagement Plan must describe the applicant's completed outreach to environmental justice communities, summarize comments from potentially impacted communities, describe planned outreach, and describe how the applicant will reach out to environmental justice communities about potential mitigation.

Id.

PP 30-31; 18 CFR 50.4(a) (requiring Project Participation Plan).

Id.

P 31.

22. Finally, the Commission proposed updates to the environmental information that an application must include. In addition to a variety of proposed updates, clarifications, and corrections to existing resource reports, the Commission proposed to require an applicant to provide information regarding a proposed project's impacts on Tribal resources, environmental justice communities, and air quality and environmental noise in three new resource reports.

Id.

PP 63-71.

23. Comments on the NOPR were due by April 17, 2023. In response to a motion filed by the National Association of Regulatory Utility Commissioners (NARUC), the Commission extended the comment deadline to May 17, 2023.

24. In response to the NOPR, 52 comments were filed.

These comments have informed our determinations in this final rule.

Appendix B lists the entities that submitted comments on the NOPR and the abbreviated names used throughout this final rule to describe those entities.

25. Additionally, on February 28, 2024, the Joint Federal-State Task Force on Electric Transmission (Task Force)

met to discuss transmission siting.

The discussion included topics such as how State and Federal siting reviews should be sequenced and coordinated, what factors the Commission should consider in its siting proceedings under section 216(b), and how the Commission's siting process will interface with transmission planning and cost allocation requirements.

Joint Fed.-State Task Force on Elec. Transmission,

175 FERC ¶ 61,224 (2021) (establishing Task Force pursuant to FPA section 209(b)).

Joint Fed.-State Task Force on Elec. Transmission,

Notice of Meeting and Agenda, Docket No. AD21-15-000 (Feb. 13, 2024). The transcript of this meeting can be found in Docket No. AD21-15-000. For context, the Commission established the Task Force in June 2021 to formally explore transmission-related topics such as generator interconnection, grid enhancing technologies, physical security, and regulatory gaps or challenges in oversight. The Task Force was composed of all FERC Commissioners as well as representatives from 10 State commissions nominated by NARUC, with two originating from each NARUC region. The Task Force convened for multiple formal meetings annually, which were open to the public.

II. Discussion

A. Commission Jurisdiction and State Siting Proceedings

26. As discussed above, section 216(b)(1) of the FPA, as revised by the IIJA, provides the circumstances that trigger the Commission's jurisdiction. As discussed further below, in this final rule, the Commission revises § 50.6 of its regulations to reflect the IIJA's amendments to section 216(b)(1). The Commission also declines to adopt the policy change proposed in the NOPR with respect to when the Commission's pre-filing process may commence.

1. IIJA Amendments and Commission Jurisdiction Under FPA Section 216(b)(1)

a. NOPR Proposal

27. Section 50.6 of the Commission's regulations describes the information that is required in each application filed pursuant to the part 50 regulations. Section 50.6(e) provides that each application must provide evidence demonstrating that one of the bases for the Commission's jurisdiction set forth in section 216(b)(1) applies to the proposed facilities. To ensure consistency with section 216(b)(1)(A), as amended by the IIJA, in the NOPR the Commission proposed to add to § 50.6(e)(1) the phrase “or interregional benefits” to clarify that an application may provide evidence that a State does not have the authority to consider the interstate benefits or interregional benefits expected to be achieved by the proposed facilities.

NOPR, 181 FERC ¶ 61,205 at P 43. While the statute, as amended by the IIJA, does not define the term “interregional,” the Commission proposed to apply a meaning that is consistent with Order No. 1000, which defines an interregional transmission facility as one that is located in two or more transmission planning regions.

Id.

(citing

Transmission Plan. & Cost Allocation by Transmission Owning & Operating Public Utilities,

Order No. 1000, 76 FR 49842 (Aug. 11, 2011), 136 FERC ¶ 61,051, at P 482 n.374 (2011)).

28. As discussed above, the IIJA also amended FPA section 216(b)(1)(C) to expressly state that the Commission may issue a permit for the construction or modification of electric transmission facilities in National Corridors if a State has denied an application to site such transmission facilities.

To reflect this amendment, in the NOPR the Commission proposed corresponding revisions to § 50.6(e)(3) to provide that the applicant is required to submit evidence demonstrating that a State has: (i) not made a determination on an application; (ii) conditioned its approval in such a manner that the proposed facilities would not significantly reduce transmission capacity constraints or congestion in interstate commerce or is not economically feasible; or (iii) denied an application.

See supra

P 15.

NOPR, 181 FERC ¶ 61,205 at P 18.

b. Comments

29. Several commenters ask the Commission to clarify its jurisdiction under section 216(b)(1) of the FPA. ACEG seeks confirmation that the Commission's regulations will apply in instances where a State does not have authority to approve the siting of facilities or consider a project's expected interstate or interregional benefits, or when an applicant does not qualify for a State permit or siting approval because the applicant does not serve end-use customers in that State.

ACEG also urges the Commission to “expand upon the meaning of a State `lacking authority' to approve the proposed facilities.”

ACEG Comments at 4-5 (citing 16 U.S.C. 824p(b)(1)(A)-(B)).

Id.

at 7.

30. Commenters ask the Commission to clarify whether specific circumstances would trigger the Commission's siting authority under FPA section 216(b)(1)(C), including when a local government entity with siting authority, such as a county zoning board, has failed to act on, conditionally approved, or denied a permit;

when a State has not acted within a year but no

National Corridor has been designated;

and when a multistate project is approved by one or more relevant States but denied by another.

To clarify when the Commission's authority under section 216(b)(1) would apply, ACEG recommends that the Commission add an applicability section to its regulations.

See

ACEG Comments at 6; SEIA Comments at 7; Rail Electrification Council Comments at 13. Rail Electrification Council also asks whether a State transportation authority that owns or controls a railroad right-of-way that is integral to a proposed transmission project would qualify as a “State commission or other entity” under FPA section 216(b)(1)(C)). Rail Electrification Council Comments at 13.

ACEG Comments at 7.

Impacted Landowners Comments at 25.

ACEG Comments at 7.

31. Commenters also request clarification on the Commission's authority to act under section 216(b)(1)(C)(ii) if it determines that a State commission or other entity with siting authority has conditioned its approval in such a manner that the proposed facilities will not significantly reduce transmission capacity constraints or congestion in interstate commerce or is not economically feasible. Several commenters urge the Commission to opine on what it would consider a significant reduction in transmission capacity constraints or congestion and how any such threshold would be quantified.

Maryland Commission observes that the statutory phrase “not economically feasible” is broad and undefined and that State conditions that simply impose an economic burden on an applicant should not be deemed sufficient to trigger the Commission's siting jurisdiction.

Rather, Maryland Commission states that the Commission should only consider asserting its siting authority when confronted by State conditions that are not supported by the record, are contrary to law, or are substantially outweighed by the project's regional benefits and would jeopardize the existence of the project if included.

See

Michigan Commission Comments at 11; New York Commission Comments at 6-1; OMS Comments at 5-6.

Maryland Commission Comments at 25.

Id.

32. Some commenters urge the Commission either to defer to State siting decisions or to refrain from prematurely exercising its jurisdiction under section 216(b)(1)(C). New Jersey Board states that the Commission should refrain from exercising its section 216 authority and allow a State to reach its own determination, so long as the State has acted in good faith and there is no evidence that it is attempting to delay the process.

New Jersey Board suggests that the Commission's final rule recognize good cause for an application to remain in the State's purview.

New York Commission states that the Commission should defer to State siting determinations that deny an application because a project is incompatible with public health, safety, and the environment.

Noting that the ability to approve or deny transmission siting applications is within States' general police powers, New York Commission argues that the NOPR is too broad, does not respect State siting authority, and is an overreach of the Commission's jurisdiction.

For these reasons, New York Commission urges the Commission to identify a limited set of specific circumstances that would trigger the Commission's jurisdiction if State denial of a permit is unreasonable or inappropriate.

New Jersey Board Comments at 6.

Id.

New York Commission Comments at 7-9.

Id.

at 8-9.

Id.

at 9.

c. Commission Determination

33. We adopt the NOPR proposal's revisions to § 50.6(e), which clarifies the evidence an applicant must provide to demonstrate that one of the jurisdictional bases set forth in section 216(b)(1) applies to the proposed facilities, including the addition in § 50.6(e)(1) of the phrase “interregional benefits” to clarify that an applicant may provide evidence that a State does not have authority to consider the interregional benefits expected to be achieved by the proposed project. We decline to impose additional requirements for the Commission to assert its jurisdiction beyond those required by the statute. We disagree with commenters that, by revising the Commission's regulations to reflect the IIJA's amendments to section 216(b)(1)(C), the Commission does not respect State siting authority, exceeds its statutory authority, or coopts or preempts State processes.

34. As stated previously in Order No. 689, mere consideration of an application by the Commission does not equate to a jurisdictional determination or Commission approval of the proposed project.

Once the Commission notices an application in accordance with § 50.9, anyone who questions the Commission's jurisdiction over the proposed project, the timing of the exercise of that jurisdiction, or the merits of the proposal can raise those matters with the Commission by filing comments, an intervention, or a protest in the proceeding. The Commission will make a jurisdictional determination and address comments and protests in an order addressing the proposed project.

Order No. 689, 117 FERC ¶ 61,202 at P 32.

35. Section 50.6(e)(1) of the Commission's regulations tracks the statutory language that triggers the Commission's jurisdiction under FPA section 216(b)(1)(A). Thus, in response to ACEG's clarification request, we confirm that the Commission's regulations would apply in instances where a State does not have authority to approve the siting of facilities or consider a project's expected interstate or interregional benefits, and when an applicant does not qualify for a State permit or siting approval because the applicant does not serve end-use customers in that State. We decline ACEG's invitation to expand on the meaning of a State “lacking authority” to approve proposed facilities,

as such findings will be State-specific and, perhaps, project-specific and will be considered by the Commission on a case-by-case basis.

ACEG Comments at 7. While ACEG does not cite a particular statutory provision, we presume that ACEG's comment is in reference to FPA section 216(b)(1)(A)(i), which provides that the Commission may issue a permit if it finds that a State in which the transmission facilities are to be located does not have authority to approve the siting of the facilities.

36. We also do not find it necessary to further define the scope of circumstances that might trigger the Commission's siting authority under section 216(b)(1). We note that § 50.6(e) of the Commission's the regulations require an applicant to demonstrate that the relevant statutory requirements have been met. The Commission will make such determinations case-by-case, based upon the record in a given proceeding. For this reason, we decline commenters' requests to clarify the applicability of FPA section 216(b)(1) to particular, factual circumstances that are, at this point, hypothetical.

37. We likewise decline commenters' calls to expound on when a State approval would be conditioned in a manner that meets the statutory threshold under FPA section 216(b)(1)(C)(ii). The Commission addressed similar comments in Order No. 689.

As the Commission stated then, these issues cannot be resolved adequately on a generic basis. Consistent with the Commission's prior approach, we decline to outline potential conditions a State might impose that would invoke the Commission's jurisdiction under FPA section 216(b)(1).

Order No. 689, 117 FERC ¶ 61,202 at P 34.

2. Commencement of Pre-Filing

38. The Commission has recognized that Congress, in enacting section 216 of the FPA, adopted a statutory scheme that allows simultaneous State and Commission siting processes.

As the

Commission explained in Order No. 689, the statute provides for this potential overlap by allowing the Commission to issue a permit one year after the State siting process has begun and requiring an expeditious pre-application mechanism for all permit decisions under Federal law.

Thus, the Commission has recognized that the pre-filing process can occur at the same time as State proceedings.

Id.

P 19.

Id.

39. Notwithstanding that the statute allows simultaneous State and Federal proceedings, the Commission in Order No. 689 announced a policy that, in cases where its jurisdiction rests on section 216(b)(1)(C),

the pre-filing process would not commence until one year after the relevant State applications have been filed.

This approach, the Commission explained, would provide the States one full year to process an application without any overlapping Commission processes, after which time an applicant might seek to commence the Commission's pre-filing process.

However, the Commission noted that it would reconsider this issue if it later determined that requiring applicants to wait one year before commencing the Commission's pre-filing process was delaying projects or was otherwise not in the public interest.

In Order No. 689, the Commission explained that in all other instances, the pre-filing process may be commenced at any time.

Id.

P 21 n.14.

Id.

P 21.

Id.

a. NOPR Proposal

40. In the NOPR, the Commission proposed to eliminate the one-year delay before the Commission's pre-filing process may commence, thus allowing simultaneous processing of State applications and Commission pre-filing proceedings (referred to herein as simultaneous processing).

The Commission proposed to entertain requests to commence pre-filing, and potentially grant such requests, at any time after the relevant State applications have been filed. Additionally, the Commission proposed to provide an opportunity for State input before the Commission would announce the completion of the pre-filing process and allow an application to be filed.

Specifically, one year after the commencement of the Commission's pre-filing process, if a State has not made a determination on an application, the Commission proposed to provide a 90-day window for the State to submit comments on any aspect of the pre-filing process, including any information submitted by the applicant. The NOPR also sought comment on the advantages or disadvantages of the Commission entertaining requests to commence the pre-filing process before a State application has been filed.

NOPR, 181 FERC ¶ 61,205 at PP19-23.

Id.

P 23.

b. Comments

41. Numerous commenters express support for the NOPR proposal.

A number of commenters agree that simultaneous processing would enhance efficiency by streamlining processes and allowing decision-making entities to use pre-existing data to make determinations.

For instance, Los Angeles DWP believes that simultaneous processing would enable early engagement and coordination between State and Federal regulators, thereby increasing certainty in permit application outcomes, reducing time and costs of environmental reviews, and better aligning projects with State and Federal policy goals.

Sabin Center concurs that removing the one-year delay will improve efficiency and ensure more timely decision-making by the Commission by streamlining information collection.

Advanced Energy United Comments at 8-9; American Chemistry Council Comments at 5; ACP Comments at 2-7; ACORE Comments at 2-3; ACEG Comments at 5-6, 8-9; CATF Comments at 3-7; Clean Energy Buyers Comments at 6-7; ClearPath Comments at 2; CLF Comments at 2,4; ELCON Comments at 1,3; EDF Comments at 10-11; Los Angeles DWP Comments at 2; Michigan Commission Comments at 4; New Jersey Board Comments at 5; Niskanen Comments at 5-7; Public Interest Organizations Comments at 10-15; Sabin Center Comments at 2-3; SEIA Comments at 2-7; Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments at 3.

Los Angeles DWP Comments at 2; Michigan Commission Comments at 4; New Jersey Board Comments at 5.

Los Angeles DWP Comments at 3.

Sabin Center Comments at 3.

42. Several commenters assert that the NOPR's simultaneous processing proposal affords sufficient deference to States' decision-making involving land-use and permitting decisions.

ACEG states that the Commission's proposed approach toward simultaneous processing strikes the correct balance between promoting efficiency and respecting States' primacy in the process.

See, e.g.,

SEIA Comments at 5-7; EDF Comments at 11.

ACEG Comments at 5-6.

43. Some commenters agree that simultaneous processing is consistent with the Commission's statutory authority under FPA section 216 and Congress's intent.

Advanced Energy United states that the IIJA's amendments to FPA section 216 were meant to expedite the permitting process and that simultaneous processing would meet that goal.

See, e.g.,

ClearPath Comments at 2;

see also

Clean Energy Buyers Comments at 5; Public Interest Organizations Comments at 11-12 (interpreting Congress's silence as an implicit grant of authority).

See, e.g.,

ACP Comments at 8;

see also

Advanced Energy United Comments at 7.

44. Some commenters contend that the NOPR's simultaneous processing proposal would enhance stakeholder participation and communication in both State and Federal transmission siting proceedings.

ACP states that conducting concurrent review allows the Commission to hear from stakeholders early in the Federal siting process—and potentially in tandem with States.

Niskanen also supports simultaneous processing because it believes that the Commission's implementation of the statute's “good faith” standard for engaging with landowners and other stakeholders from the beginning of the process will standardize practices across the States and decrease the ability of applicants to exhibit bad faith when dealing with only the State commission.

Los Angeles DWP Comments at 2

ACP Comments at 5.

Niskanen Comments at 7.

45. Several commenters that otherwise support the NOPR's simultaneous processing proposal explicitly oppose the Commission's pre-filing process commencing prior to the commencement of the State's permitting process or a State application being filed.

Several commenters that support simultaneous processing also urge the Commission to take steps to limit stakeholder confusion, for instance, by requiring applicants to specify when they will file their applications with States.

The Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe are supportive of simultaneous processing, but warn that the Commission must ensure meaningful stakeholder participation during the pre-filing process.

ACORE Comments at 3; Yurok Tribe Comments at 24; Clean Energy Buyers Comments at 7.

See

California Commission Comments at 6; EDF Comments at 11.

Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments at 3.

46. Many commenters oppose the NOPR proposal to allow the Commission's pre-filing process to commence at any time after the relevant State siting applications have been filed

but before a State decision is made.

Several commenters urge the Commission to retain the existing policy adopted in Order No. 689, where the pre-filing process could not commence until one year after the relevant State applications have been filed.

Some commenters argue that the Commission's pre-filing process should not begin until after the relevant State authority determines that a State application is complete

or after the relevant State authority's finishes its adjudication.

Georgia Commission is concerned that simultaneous processing would contradict current State statutes and regulations guiding transmission planning, which in Georgia occurs at least every three years.

Alabama Commission Comments at 1-3; Georgia Commission Comments at 1-2; Impacted Landowners Comments at 2-5; Joint Consumer Advocates Comments at 6-11; Kansas Commission Comments at 9-12; Kentucky Commission Comments at 2-4; Louisiana Commission Comments at 5-9; Maryland Commission Comments at 2, 16-21; NESCOE Comments at 4, 6-7; New York Commission Comments at 9-10; North Carolina Commission and Staff Comments at 8, 10-11; North Dakota Commission Comments at 5-6; Pennsylvania Consumer Advocate Comments at 5-7; Pennsylvania Commission Comments at 2, 4-6; Texas Commission Comments at 5-6, 10-11; Southern Comments at 3-8; Farm Bureaus Comments at 3, 6; Chamber of Commerce Comments at 2, 5.

See, e.g.,

North Dakota Commission Comments at 6; NESCOE Comments at 4-6; Texas Commission Comments at 6.

North Dakota Commission Comments at 5; Joint Consumer Advocates Comments at 6; Maryland Commission Comments at 21 (arguing that the one-year should be tolled if material amendments are filed at the State level).

New York Commission Comments at 9; Maryland Commission Comments at 2, 18-19; Pennsylvania Commission Comments at 7.

Georgia Commission Comments at 2.

47. Several commenters argue that simultaneous processing would not adequately respect the States' primacy and would impinge on State jurisdiction.

Joint Consumer Advocates caution that the Commission, in implementing its section 216 authority, must ensure State processes are not coopted or preempted, and they assert that the Federal process should be a backstop, rather than an alternative, to the State process.

Georgia and Texas Commissions express concerns that the NOPR's proposed simultaneous processing will encroach on their existing permitting schemes.

Some commenters argue that simultaneous processing would undermine State proceedings

and the public's confidence in State siting authorities.

Pennsylvania Commission and North Carolina Commission argue that Congress meant to balance the Commission's process with State primacy and that the NOPR's simultaneous processing proposal is inconsistent with that goal.

See, e.g.,

Maryland Commission Comments at 2, 19; North Dakota Commission Comments at 2; Louisiana Commission Comments at 5.

Joint Consumer Advocates Comments at 5.

Georgia Commission Comments at 2,4; Texas Commission Comments at 6-9.

Louisiana Commission Comments at 5.

NESCOE Comments at 6-7.

Pennsylvania Commission Comments at 2; North Carolina Commission and Staff Comments at 8.

48. Several commenters argue that simultaneous processing invites potentially duplicative, wasteful procedures, especially in instances where the State ultimately approves the application.

Kentucky PSC contends that the one-year delay actually helps the Commission, as some projects will be approved by States in that time, saving the Commission from wasting time and resources on commencing the NEPA process.

Chamber of Commerce asserts that simultaneous processing, by virtue of its design, guarantees that one of the processes and the stakeholder efforts will amount to a void and wasted effort.

Some commenters express concerns that applicants may seek to recover from ratepayers costs incurred for commencing the Commission's pre-filing process in instances when the State siting commission approves a proposed transmission project.

See

New York Commission Comments at 9; Alabama Commission Comments at 2 n.3; North Dakota Commission Comments at 6; North Carolina Commission and Staff Comments at 8.

Kentucky Commission Comments at 3-4.

Chamber of Commerce Comments at 5; Impacted Landowners Comments at 3.

Texas Commission Comments at 10-11; Impacted Landowners Comments at 3.

49. Commenters opposed to simultaneous processing argue that the NOPR proposal would disproportionately burden State agencies charged with processing transmission siting applications. Some commenters assert that simultaneous proceedings would make it challenging for State oversight agencies to concurrently perform their quasi-judicial role and act as intervenors in Commission proceedings.

Other commenters contend that overlapping hearings and comment deadlines

100

would strain State resources or divide the attention of State experts.

101

See

Kentucky Commission Comments at 2; Alabama Commission Comments at 1; Pennsylvania Commission Comments at 6.

100

See

NESCOE Comments at 5-6.

101

See

Kansas Commission Comments at 11-12; New York Commission Comments at 9; Kentucky Commission Comments at 2; Alabama Commission Comments at 1; Pennsylvania Commission Comments at 6.

50. Multiple commenters assert that the NOPR's simultaneous processing proposal would have an adverse effect on stakeholder and applicant participation in State proceedings.

102

In particular, some commenters express concerns that multiple hearings and comment deadlines resulting from parallel State and Federal proceedings would confuse stakeholders by requiring interested participants and affected landowners to learn and comply with two sets of procedural rules and substantive permitting requirements.

103

Some commenters argued that the resulting confusion would reduce stakeholder participation.

104

102

NESCOE comments at 5-6; Kansas Commission Comments at 11-12.

103

See

NESCOE Comments at 6; New York Commission Comments at 9; Kansas Commission Comments at 11-12.

104

See

NESCOE Comments at 6.

51. Several of the commenters that oppose the simultaneous processing proposal also oppose the proposed 90-day comment period for States as an inadequate replacement for the one-year delay.

105

Kentucky and Louisiana Commissions argue that the 90-day comment period for States will put them in the position of choosing whether to remain silent in the Commission pre-filing process or to comment in favor of or against a proposed project, essentially “prejudging” the project at the Federal level while trying to maintain impartiality in the ongoing State proceeding.

106

North Carolina Commission and Staff oppose simultaneous processing but support the 90-day comment period in the event that the Commission adopts the proposal, because it would afford the States more time to participate in the Commission's pre-filing process.

107

Although Pennsylvania Commission also opposes simultaneous Federal and State proceedings, it contends that the 90-day comment period is necessary even in the absence of simultaneous processing.

108

105

See, e.g.,

Alabama Commission Comments at 2 n.6; Maryland Commission Comments at 19; Kentucky Commission Comments at 2-3; Louisiana Commission Comments at 5; Southern Comments at 8.

106

Kentucky Commission Comments at 2-3; Louisiana Commission Comments at 5.

107

North Carolina Commission and Staff Comments at 11-12.

108

Pennsylvania Commission Comments at 6-7.

52. Sabin Center and ClearPath both suggest that the 90-day comment period start one year after the start of the State review, not one year after the Commission's pre-filing process has begun.

109

ClearPath suggests that there be no 90-day comment period if a State

has already approved or denied an application, as the State will have already stated its position on the project.

110

Some entities seek clarity as to whether the 90-day window explicitly applies to every circumstance triggering the Commission's jurisdiction under section 216.

111

ACP points out that the 90-day comment period would serve as a second opportunity for State input, as States will also have the opportunity to provide input during DOE's National Corridor designation process.

112

109

Sabin Center comments at 3; ClearPath Comments at 2.

110

ClearPath Comments at 2.

111

Joint Consumer Advocates Comments at 6.

112

ACP Comments at 6.

c. Commission Determination

53. After further consideration and review of the comments, we decline to adopt the NOPR proposal to allow simultaneous processing. We acknowledge comments that argue that simultaneous processing could result in efficiencies, but given the concerns raised by the States, we find that not allowing simultaneous processing strikes the appropriate balance at this time between an efficient process and respect for States' primacy in siting transmission infrastructure. We continue to believe that the statute allows parallel State and Commission processes.

113

Nevertheless, we make this policy determination to continue the Commission's practice introduced in Order No. 689, based on our review of the record and, in particular, the feedback received from States in their filed comments and at the February 28, 2024 meeting of the Joint Federal-State Task Force on Electric Transmission.

114

Additionally, given this determination, we are not adopting the NOPR proposal to provide a 90-day period for the State to comment on the pre-filing process.

113

Order No. 689, 117 FERC ¶ 61,202 at P 19.

114

See supra

note 40, Tr. 79-90.

54. We confirm that, in cases where the Commission's jurisdiction rests on FPA section 216(b)(1)(C)(i),

115

the applicant should not begin the pre-filing process until one year after the relevant State applications have been filed. This will give the States one full year to process an application without any overlapping Commission processes. Once that year is complete, an applicant may begin the Commission's pre-filing procedures pursuant to § 50.5. We believe that continuing this approach most adequately addresses State concerns. However, as the Commission previously stated in Order No. 689, if we determine in the future that the lack of a Commission pre-filing process prior to the end of the one year is delaying projects or otherwise not in the public interest, we may reexamine this issue.

115

16 U.S.C. 824p(b)(1)(C)(i).

B. Eminent Domain Authority and Applicant Efforts To Engage With Landowners and Other Stakeholders

55. Section 50.4 requires the applicant to develop and file a Project Participation Plan early in the pre-filing process and to distribute, by mail and newspaper publication, project participation notifications early in both the pre-filing and application review processes. These notifications will provide a range of information about the proposed project and permitting process, including a general description of the property an applicant would need from an affected landowner and a brief summary of the rights an affected landowner has at the Commission and in proceedings under the eminent domain rules of the relevant State.

1. NOPR Proposal

56. As described above, the IIJA amended FPA section 216(e)(1) to require the Commission to determine, as a precondition to a permit holder receiving eminent domain authority, that the permit holder has made good faith efforts to engage with landowners and other stakeholders early in the permitting process.

116

Therefore, in the NOPR, the Commission proposed to supplement the existing landowner and stakeholder participation provisions in part 50 of its regulations.

117

116

16 U.S.C. 824p(e)(1).

117

NOPR, 181 FERC ¶ 61,205 at PP 24-29.

57. To address the IIJA's amendment to section 216(e)(1), in the NOPR the Commission proposed to supplement the regulatory requirements in § 50.4 by adding a new § 50.12.

118

Under proposed § 50.12, an applicant may demonstrate that it has met the statutory good faith efforts standard by complying with an Applicant Code of Conduct in its communications with affected landowners. The Applicant Code of Conduct includes recordkeeping (

e.g.,

maintaining an affected landowner discussion log) and information-sharing requirements for engagement with affected landowners, as well as more general prohibitions against misconduct in such engagement.

118

Id.

PP 26-29.

58. As the Commission proposed in the NOPR, under § 50.12(b)(1), an applicant that chooses to show good faith by complying with the Applicant Code of Conduct must file, as part of the pre-filing request required under § 50.5(c), an affirmative statement indicating its intent to comply with the Applicant Code of Conduct.

119

Under § 50.12(b)(2), such an applicant must, as part of the monthly status reports required under § 50.5(e), demonstrate compliance by: (i) affirming that the applicant and its representatives have complied with the Applicant Code of Conduct; or (ii) explaining any instances of non-compliance during the relevant month and any remedial actions taken or planned. Under proposed § 50.12(b)(3), an applicant must also identify any known instances of non-compliance that were not disclosed in prior monthly status reports and explain any remedial actions taken to remedy such instances of non-compliance.

119

Id.

P 27.

59. In the NOPR, the Commission emphasized that compliance with the Applicant Code of Conduct is one way, but not the only way, that an applicant may demonstrate that it has met the good faith efforts standard in section 216(e)(1).

120

Nevertheless, the Commission stated that the Applicant Code of Conduct reflects principles that are broadly relevant to determining whether an applicant has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process. Thus, the Commission proposed to require under § 50.12 that an applicant that chooses not to rely on compliance with the Applicant Code of Conduct must specify its alternative method of demonstrating that it meets the statute's good faith efforts standard and explain for each deviation from the Applicant Code of Conduct why the chosen alternative is an equal or better means to ensure that the good faith efforts standard is met.

120

Id.

P 28.

2. Comments

60. Public Interest Organizations and the Yurok Tribe generally support the Applicant Code of Conduct.

121

In addition, numerous commenters urge the Commission to make compliance with the Applicant Code of Conduct mandatory for applicants to maximize transparency and meaningfully assist landowners and stakeholders.

122

Public Interest Organizations specifically recommend that the Commission elevate the Applicant Code of Conduct as the sole means of demonstrating compliance with the good faith efforts standard in section 216(e)(1), asserting that allowing alternative methods could

result in ambiguity for the applicant and other stakeholders.

123

121

Public Interest Organizations Comments at 16-17; Yurok Tribe Comments at 30.

122

EDF Comments at 13: Farm Bureaus Comments at 11; Public Interest Organizations Comments at 18; NESCOE Comments at 13; Pennsylvania Consumer Advocate Comments at 7.

123

Public Interest Organizations Comments at 42-44.

61. Impacted Landowners and EDF urge the Commission to create clear standards to guide its good faith efforts determination, including for alternative methods of demonstrating that an applicant meets the good faith efforts standard.

124

Impacted Landowners Reply Comments at 6; EDF Comments at 13.

62. In opposition, American Chemistry Council and ClearPath state that the Commission's proposed good faith efforts requirements are overly prescriptive, intrusive, outside the scope of the Commission's statutory mandates, and will turn efforts to engage affected landowners into a box-checking exercise instead of meaningful engagement.

125

American Chemistry Council and ClearPath dispute the Commission's assertion that compliance with the Applicant Code of Conduct is voluntary given that applicants pursuing alternative methods of meeting the good faith efforts requirement must explain how their methods are equal to or better than compliance with the Applicant Code of Conduct.

126

ClearPath also contends that the Applicant Code of Conduct contains redundancies, including the requirement in proposed § 50.12 that applicants provide landowners, upon first contact, with documentation about the project, which, it says, is duplicative of the notification requirements in § 50.4(c).

127

Furthermore, ClearPath contends that the NOPR proposal would create inconsistent requirements for transmission siting applications under the FPA and natural gas pipeline applications under the Natural Gas Act.

128

125

American Chemistry Council Comments at 6; ClearPath Comments at 3.

126

American Chemistry Council Comments at 6; ClearPath Comments at 3. For example, ClearPath notes that the regulations require monthly status reports and questions whether any less frequent reporting would be deemed “equal or better” than monthly reporting.

127

ClearPath Comments at 3.

128

Id.

63. Impacted Landowners state that merely having an Applicant Code of Conduct will not result in actual good faith efforts by an applicant to engage with landowners and generally that codes of conduct do not work. They assert that there has historically been no policing or punishment of violations associated with codes of conduct.

129

Further, Impacted Landowners assert that although the proposed Applicant Code of Conduct admonishes applicants to avoid coercive tactics while they engage in negotiations with landowners, there is no way to bring up the possible exercise of eminent domain without it being interpreted by the landowner as coercive.

130

129

Impacted Landowners Comments at 7-10.

130

Id.

at 8.

64. California Commission states that the proposed regulations under § 50.12(b)(2) should be revised to require a demonstration and documentation of compliance with the Applicant Code of Conduct rather than only an “affirmation” to ensure applicant compliance.

131

California Commission Comments at 7.

65. Several commenters seek clarification regarding the timing and duration of the Commission's good faith efforts determination required by FPA section 216(e)(1). For instance, Impacted Landowners ask the Commission to clarify the point at which the “applicable permitting process” begins, during which applicants must make good faith efforts to engage with landowners and other stakeholders. They also ask when the Commission would determine if good faith efforts have been made and whether applicants will be expected or required to continue to make good faith efforts to engage with landowners and other stakeholders once a permit is issued, asserting that after permit issuance, applicants will likely increase land acquisition efforts and negotiations can become more contentious.

132

Several commenters suggest that applicants must make good faith efforts to engage with landowners and other stakeholders throughout the permitting process, including prior to the start of the Commission's pre-filing process.

133

EEI notes that in instances of late project routing changes it may be difficult to comply with the statutory good faith efforts requirement.

134

132

Impacted Landowners Reply Comments at 5-6.

133

Public Interest Organizations Comments at 17 and 21; Niskanen Comments at 7.

134

EEI Comments at 7.

66. Similarly, several commenters raise timing concerns with using an alternative method, allowed in proposed § 50.12(c), to demonstrate that the good faith efforts standard has been met. Public Interest Organizations assert that the proposed regulations are ambiguous with respect to how or when the Commission would determine that an applicant's alternative method is equal to or better than the Commission's Applicant Code of Conduct.

135

EEI asks the Commission to avoid any disruption or delay when making that determination.

136

135

Public Interest Organizations Comments at 42-44.

136

EEI Comments at 7.

67. Several commenters offer suggestions with respect to the scope of an applicant's good faith efforts under FPA section 216(e)(1). Public Interest Organizations and SEIA claim that proposed § 50.12, which applies to communications with affected landowners, fails to take into account section 216(e)(1)'s statutory directive to make good faith efforts to engage “landowners and other stakeholders.”

137

Public Interest Organizations and SEIA recommend that the regulations in § 50.12 be amended to include conduct with “other stakeholders,”

138

noting that this change would extend the duty of good faith to environmental justice communities.

139

The Yurok Tribe, Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe state that Tribes should be included as a separate stakeholder in the regulations with whom applicants must demonstrate good faith efforts to engage, including in the Applicant Code of Conduct.

140

137

Public Interest Organizations Comments at 3 and 17.

138

Id.

at 18-21.

139

Id.

at 78-79; SEIA Comments at 10.

140

Yurok Tribe Comments at 30; Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments at 2.

68. Impacted Landowners argue that the proposed Applicant Code of Conduct only applies to applicants and would not extend to contracted land agents who negotiate with landowners.

141

Niskanen suggests that the Commission add explicit language to the Applicant Code of Conduct to capture applicability to land agents acting on behalf of applicants.

142

141

Impacted Landowners Comments at 9-10.

142

Niskanen Comments at 18-20.

69. Pennsylvania Consumer Advocate, asserting that improper land agent tactics are the most common cause of complaints during transmission line siting cases, urges Commission staff to oversee interactions between applicants and affected landowners.

143

Several commenters suggest that the Commission establish compliance procedures and communication channels for landowners and stakeholders to provide feedback to the Commission concerning applicants' efforts to engage in good faith and violations of the Applicant Code of

Conduct.

144

Public Interest Organizations and Niskanen recommend that the Commission assign its Office of Public Participation to receive from landowners and stakeholders reports of abuse or fraudulent behavior exhibited by the applicant or any representative of the applicant.

145

Additionally, numerous commenters state that the Commission should add language to the Landowner Bill of Rights instructing affected landowners to promptly report to the Commission any instances of abuse or fraudulent behavior exhibited by the applicant or any representative of the applicant.

146

Impacted Landowners recommend that the Commission independently investigate complaints of violations of the Applicant Code of Conduct, and that Commission-verified violations should be punished to prevent recurrence.

147

143

Pennsylvania Consumer Advocate Comments at 8.

144

Impacted Landowners Comments at 11; Impacted Landowners Reply Comments at 5-6; Public Interest Organizations Comments at 17; Pennsylvania Consumer Advocate Comments at 7-8.

145

Public Interest Organizations Comments at 40; Niskanen Comments at 15-17.

146

Public Interest Organizations Comments at 40; Niskanen Comments at 15-17.

147

Impacted Landowners Comments at 11.

70. Similarly, several commenters recommend that the Commission require applicants to include the discussion logs required under proposed § 50.12(a)(1) as part of the monthly status reports applicants must submit under § 50.5(e)(11),

148

or, alternatively, provide copies of discussion logs to landowners, stakeholders, and Tribes for the purpose of verifying their accuracy.

149

The Yurok Tribe and Public Interest Organizations ask that the Applicant Code of Conduct include a requirement for applicants to note within their discussion logs who within a Tribe was contacted, a description of the contacted Tribal representative's role, and whether another Tribal representative was suggested to be contacted.

150

The Yurok Tribe states that the applicant must be held accountable to follow up on alternative contact recommendations. The Yurok Tribe also suggests that the discussion logs include the date of any questions posted by a Tribe, the contents and date of any applicant responses to questions, any follow-up after the initial answer, and the method of contact for each interaction (

e.g.,

phone, email, in-person).

151

148

Due to a clarifying edit, in this final rule the Commission has split and redesignated what appeared in the NOPR as § 50.5(e)(7) and (8) into § 50.5(e)(7), (8), and (9). With this change, the NOPR's redesignated § 50.5(e)(9) and (10) are further redesignated to § 50.5(e)(10) and (11). Consequently, this final rule references these regulations according to the final redesignated numbering.

149

Public Interest Organizations Comments at 22-23; NESCOE Comments at 14, Niskanen Comments at 20, Yurok Tribe Comments at 32 and 34.

150

Yurok Tribe Comments at 31-32; Public Interest Organizations Comments at 70-71.

151

Yurok Tribe Comments at 32.

71. Specific to the Applicant Code of Conduct, Public Interest Organizations note that proposed § 50.12(a)(2) requires the applicant to provide certain information to each stakeholder at first contact. However, Public Interest Organizations state that the regulations do not include a deadline for the applicant to provide these documents. Public Interest Organizations recommend that the Commission set a reasonable deadline for providing this information, such as sending the document within three business days of first contact.

152

Public Interest Organizations Comments at 23.

72. Several commenters provide additional recommendations for the Applicant Code of Conduct, including requiring that company representatives: provide landowners with a copy of the Applicant Code of Conduct at first notification;

153

present photo identification;

154

consent to being recorded or photographed,

155

and explain their position and decision-making authority along with providing contact information for decision makers.

156

Impacted Landowners ask that the Applicant Code of Conduct require applicants to notify landowners of their right to have counsel of their choice review the easement agreement before signing and that use of eminent domain to acquire a right-of-way requires payment of just compensation determined by the appropriate court.

157

Other commenters suggest that the Commission require via the Applicant Code of Conduct that applicants must obtain consent from Tribes to enter any form of Tribal land or any area known to have cultural resources and that all individuals who conduct outreach to Tribes have undergone training, including affected Tribes' own programming.

158

ACEG recommends that the Applicant Code of Conduct require applicants to adequately protect landowners' personally identifiable information.

159

Finally, EDF suggests that the Applicant Code of Conduct include provisions for applicants to determine the preferred language of all affected landowners and communicate with affected landowners in their preferred language.

160

153

Impacted Landowners Comments at 11.

154

Id.

155

Id.

156

Yurok Tribe Comments at 31; Public Interest Organizations Comments at 70-71.

157

Impacted Landowners Comments at 11.

158

Yurok Tribe Comments at 33; Public Interest Organizations Comments at 70.

159

ACEG Comments at 18.

160

EDF Comments at 13.

3. Commission Determination

73. To incorporate the IIJA's amendment to section 216(e)(1) requiring a determination by the Commission as to whether the permit holder has made good faith efforts to engage with landowners and other stakeholders, we adopt the NOPR proposal, with modifications. We find that establishing standards via the Applicant Code of Conduct provides clarity on expectations for applicants and will support the Commission in making the required good faith efforts determination. As discussed further below, in response to commenter feedback, we modify the NOPR proposal to: clarify the timing and duration of certain Applicant Code of Conduct provisions, ensure applicant representatives present photo identification and provide the applicant's contact information during discussions with affected landowners, require that applicants explain to affected landowners that they may request copies of discussion log entries that pertain to their property, and require applicants to provide affected landowners copies of their discussion log entries upon request.

74. We both decline commenters' requests to make the Applicant Code of Conduct mandatory and disagree with commenters who argue that, by setting minimum requirements, we have

de facto

made the Applicant Code of Conduct mandatory. Given that the IIJA requires, as a prerequisite to the permit holder using eminent domain, that the Commission determine whether a permit holder has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process, we believe it is important for the Commission to identify a means for potential applicants to obtain that determination. At the same time, while the Applicant Code of Conduct reflects the principles, we find to be broadly relevant to determining that an applicant has made good faith efforts to engage with landowners, we will not declare that the specific steps outlined in the Applicant Code of Conduct are the only way those principles can be achieved and demonstrated. Therefore, we will allow applicants to propose for the Commission's consideration alternative methods to demonstrate that the statute's good faith efforts standard

will be met. We disagree that this framework would lead to ambiguity as commenters suggest. The scope and complexity of projects that the Commission may receive could significantly vary and we find it appropriate at this point not to forestall alternative options to demonstrate compliance with the good faith efforts standard. We find that the Applicant Code of Conduct and option to comply with an alternative method provides applicants sufficiently clear standards to allow a demonstration of good faith efforts while providing for appropriate flexibility, which may be necessary based on project-specific circumstances.

75. Establishing an Applicant Code of Conduct does not exceed the Commission's authority under FPA section 216. As described above, Congress has directed the Commission to determine, as a prerequisite to the use of eminent domain under FPA section 216(e)(1), that a permit holder has made good faith efforts to engage with landowners and other stakeholders. It is consistent with that directive to set forth in the Commission's regulations a set of actions which we find, if followed, will result in the appropriate engagement expected of applicants in their interactions with landowners and provides guidance as to the standards the Commission will apply in determining whether an applicant has met the statutory requirement.

76. Regarding ClearPath's concerns that the Applicant Code of Conduct contains redundancies, we note that the notification requirements under § 50.12 are structured to specifically address an applicant's demonstration of its good faith efforts to engage affected landowners. The Commission's existing notification requirements in § 50.4 facilitate participation from all landowners and other stakeholders during the Commission's proceeding. Although affected landowners may receive multiple notifications from applicants as a result of these requirements, the Commission does not view this as overly burdensome for applicants.

77. We also are not persuaded by ClearPath's argument that the Commission can only adopt reforms to stakeholder participation requirements if those revisions are applied equally to other Commission infrastructure processes (

i.e.,

to natural gas and hydropower proceedings).

161

Section 216(e)(1) of the FPA requires the Commission to determine, as a prerequisite to eminent domain authority, that a permit holder has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process. There is no such requirement under the NGA or Part I of the FPA.

161

The Commission is not obligated to implement changes in a single, sweeping step, and is not barred from implementing process improvements to only one program at a time.

See, e.g., Transportation Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & Transportation Workers

Fed. R.R. Admin.,

10 F.4th 869, 875 (D.C. Cir. 2021) (agencies have great discretion to take one step at a time and do not need to act in “one fell regulatory swoop”) (internal citation and quotation omitted).

78. In response to questions about the timing of the Commission's good faith efforts determination, we clarify that, regardless of whether the applicant follows the Applicant Code of Conduct or an alternative method, we expect to issue such determinations concurrently with an order on the merits of a permit application under section 216(b), based on the record in the proceeding.

79. Regarding Impacted Landowners' question as to when the “applicable permitting process” and good faith efforts requirements begin and whether applicants must continue to make good faith efforts to engage after permit issuance, we clarify that a good faith efforts demonstration begins with the commencement of the Commission's pre-filing process and continues through the issuance of the Commission's order on the merits of the application. We adopt a revision in the Applicant Code of Conduct to relocate, from § 50.12(a)(1) to the introductory text in paragraph (a) of this section, the phrase “for the duration of the pre-filing and application review processes” to make clear that this duration applies to all Applicant Code of Conduct requirements. We also expect applicants to act in good faith in their dealings with landowners and other stakeholders during any post-authorization engagement related to the exercise of eminent domain, construction of the project, and any post-construction mitigation or other ongoing activities involving landowners and other stakeholders.

80. We also disagree with assertions that merely adopting an Applicant Code of Conduct would not result in actual good faith efforts or could produce contradictory results. Some of these assertions appear premised on the notion that any engagement in which an applicant retains the potential to use eminent domain is not in good faith. However, we believe that an applicant demonstrates good faith efforts by the course of its engagement and efforts to involve landowners and other stakeholders in the process, rather than by whether eminent domain is ultimately necessary or parties are satisfied with the outcome of that engagement. We also disagree with claims that the Applicant Code of Conduct will reduce engagement to a “box checking exercise.”

162

We believe compliance with the information-sharing and recordkeeping provisions in the Applicant Code of Conduct will encourage meaningful engagement with landowners and help ensure that engagement meets the good faith efforts standard.

162

See, e.g.,

American Chemistry Council Comments at 6; ClearPath Comments at 3.

81. We decline to revise proposed § 50.12(b)(2) to require further demonstration beyond affirmation of compliance with the Applicant Code of Conduct. The Applicant Code of Conduct requires thorough documentation of an applicant's discussions with affected landowners, and each month an applicant must either affirm that it has complied with the Applicant Code of Conduct or provide a detailed explanation of any instances of non-compliance and any remedial actions taken or planned. As noted above, an applicant must demonstrate good faith efforts for the duration of the Commission's pre-filing and application review processes. In this final rule, we add § 50.12(b)(4) to clarify that an applicant must continue to file monthly status reports describing its efforts to comply with the Applicant Code of Conduct during the application review process.

82. Regarding alternatives to the Applicant Code of Conduct, we clarify that an applicant that uses an alternative method to demonstrate good faith efforts to engage with landowners will bear the burden to explain how its alternative method is equal to or better than compliance with the Applicant Code of Conduct. The Commission would not typically reach a determination that this standard is met until it evaluates the permit application and determines whether to issue a permit. Thus, an applicant who seeks to demonstrate that an alternative method is equal to or better than compliance with the Applicant Code of Conduct will face uncertainty regarding the acceptability of its method until the Commission determines it meets the regulatory standard. We have set forth an Applicant Code of Conduct that reflects principles we find to be broadly relevant to determining whether an applicant has made good faith efforts to engage with landowners and establishes a set of practices we believe are sufficient to achieve those principles. Applicants should propose deviations

only where they are confident that their approach is equal to or better than the Applicant Code of Conduct as a means of demonstrating that they have made good faith efforts to engage with landowners as required by the statute.

83. In response to EEI's comment regarding the potential for late-stage route changes, we note that applicants are required to file monthly reports during the pre-filing process detailing the efforts to comply with the Applicant Code of Conduct. To the extent that project route changes are developed during the pre-filing process, we expect that engagement with landowners and other affected stakeholders who would be newly impacted by the contemplated route change will be documented in monthly reports. In the instance of route changes that occur after an application is filed, § 50.4(c)(3) requires notifications to newly affected landowners when they are identified. We expect applicants to continue to make good faith efforts to engage affected landowners, including those impacted by post-application and post-authorization route changes, throughout the application review process and through construction and restoration and mitigation efforts.

84. In response to comments regarding the scope of proposed § 50.12, we agree with commenters that FPA section 216(e)(1) requires an applicant to demonstrate good faith efforts to engage with “landowners and other stakeholders.” We decline to alter the scope of the Applicant Code of Conduct, which specifically provides an applicant a means to demonstrate compliance with the good faith efforts standard in communications with affected landowners. The Applicant Code of Conduct specifies recordkeeping and information-sharing requirements that are tailored to encourage productive and more sustained engagement with affected landowners regarding the use or acquisition of their property, which may not necessarily apply to engagement with other stakeholders. With regard to good faith efforts to engage with other stakeholders, applicants bear the burden to demonstrate good faith efforts at engagement and should strive to incorporate best practices used in engagement with affected landowners in engagement with other stakeholders, as applicable. We also clarify that the Commission will assess case-by-case an applicant's good faith efforts to engage with other stakeholders, based on the record in a proceeding. We will consider, among other things, an applicant's efforts to engage stakeholders as described in the Project Participation Plan (including engagement with environmental justice communities and Tribes), monthly status reports describing stakeholder communications during pre-filing, and compliance with Commission regulations for project notifications.

85. In response to the requests of several Tribes, we clarify that Tribes meeting the definition of Indian Tribe in § 50.1 qualify as stakeholders for which applicants would be required to make good faith efforts to engage. We conclude that the good faith efforts requirements as discussed herein will ensure appropriate engagement with Tribes. Accordingly, the Commission would consider evidence of engagement with Tribes in its assessment of whether the good faith efforts standard has been met.

86. As to applicability of the Applicant Code of Conduct to land agents, we note that proposed § 50.12(a)(12), adopted in this final rule, explicitly applies the Applicant Code of Conduct to any representative acting on the applicant's behalf, which includes land agents.

87. We decline to adopt additional mechanisms to monitor compliance with the good faith efforts standard. We do not believe that it is an appropriate or practical use of Commission or stakeholder resources to adjudicate good faith efforts issues during the course of a proceeding. We encourage affected landowners and other stakeholders to participate in the pre-filing process and the permit proceeding once an application is filed. Landowners and other stakeholders may file comments in the project-specific proceeding and may contact the Commission's landowner helpline to identify perceived violations of the Applicant Code of Conduct for consideration and to request investigation by the Commission. Any comments submitted in the record may inform the Commission's deliberation regarding the good faith efforts standard and issuance of the permit. We also note that the Office of Public Participation may be able to provide technical assistance to landowners and other stakeholders regarding how to participate in a proceeding, but will not serve as an advocate for stakeholders.

88. We also decline to make any additional changes to the applicant's duty under § 50.12(a)(1) to develop and maintain a log of discussions because we conclude that the proposed requirements are sufficiently detailed to record engagement with affected landowners, and the Applicant Code of Conduct, as discussed above, is specifically aimed at promoting good faith engagement. We similarly decline to require applicants to file the discussion logs with the applicant's monthly status reports required by § 50.5(e)(11), as such a categorical requirement is not necessary to promote good faith engagement and could result in the public disclosure of information that landowners may not want shared with the general public. With respect to commenters' request that affected landowners be provided with any relevant discussion logs, this final rule modifies § 50.12(a)(2) to require applicants to explain to affected landowners that they may request copies of discussion log entries that pertain to their property and how affected landowners make such requests, and modifies § 50.12(a)(5) to require applicants to provide affected landowners copies of discussion log entries, upon request.

89. Turning to commenter feedback on specific provisions in the Applicant Code of Conduct, we agree with Public Interest Organizations that requiring an applicant to provide to each affected landowner specified documents “immediately” after first contact may be vague and confusing. Therefore, we modify the NOPR proposal in § 50.12(a)(2) by deleting “immediately” and adding in its place “within three business days” to clarify how soon after the first contact the required document must be provided to the landowner.

90. We decline to require applicants to provide landowners with copies of the Applicant Code of Conduct, as recommended in comments. As stated in the NOPR, the Applicant Code of Conduct reflects principles that are broadly relevant to determining whether an applicant has made good faith efforts to engage with landowners. We do not believe that requiring applicants to provide the Commission's regulatory text to affected landowners is necessary or will assist in our good faith efforts determination. In any event, we note that the Commission's

Electric Transmission Facilities Permit Process

pamphlet—a copy of which applicants must include as part of their Pre-filing Notifications sent by mail—will be updated to reflect the provisions in this final rule, and will include the text of the Applicant Code of Conduct.

91. Regarding requests that applicant representatives present photo identification when engaging with affected landowners, we agree and adopt this requirement in § 50.12(a)(3). We find that a photo identification requirement provides an important protection to an affected landowner in confirming the identity and business association of the applicant representative with whom the

landowner is speaking, and such requirement presents a minimal burden on the applicant.

92. Given the protections to affected landowners contained herein, including in the Landowner Bill of Rights and the required sharing of information by the applicant, as well as the photo identification requirement, we decline to also add a requirement that applicant representatives consent to being recorded and photographed.

93. Regarding the request for company representatives to provide contact information for decision makers, we assume commenters are referring to a decision maker within the applicant's company. We agree that it is important to provide affected landowners a way to contact the applicant to obtain more information about a project or report any issues with land agents. Therefore, we modify the NOPR proposal in § 50.12(a)(3) to require an applicant's representative to also provide contact information for the applicant.

94. Regarding Tribal concerns for obtaining consent to enter Tribal lands, we clarify that the Applicant Code of Conduct would apply to land owned in fee by a Tribe or member of a Tribe, so § 50.12(a)(9) would require approval from the Tribe or member of a Tribe under those circumstances.

95. We also decline to adopt a requirement that applicants have specific engagement training that may be provided by Tribes. While such engagement training may constitute a good business practice, we do not find a generic requirement necessary to promote good faith efforts to engage with affected landowners or other stakeholders. We reiterate that the burden is on the applicant to demonstrate that the good faith efforts standard has been met, and we therefore expect that the applicant will take reasonable steps to engage with Tribes.

96. We also disagree that an addition to the Applicant Code of Conduct to protect landowners' personally identifiable information is necessary. We expect applicants to protect sensitive information from public release, however, some personal information (

e.g.,

a landowner's name or mailing address) may be sourced from public databases or applicants may need to share such information with its own contractors or submit it to agencies as part of permitting application submittals. Of course, when filing information that may contain personal information with the Commission, applicants should use any appropriate filing classification for proper treatment by the Commission.

163

For example, applicants may request privileged treatment for landowner mailing lists submitted to the Commission by following the procedures specified in § 388.112 of the Commission's regulations.

97. As to the suggestion that applicants should communicate with landowners in their preferred language, we understand the importance of communicating basic information about the project, particularly to landowners who may be subject to eminent domain, in languages other than English where a significant portion of the community has limited English proficiency. As discussed below, in response to comments, we modify proposed § 50.4 to require applicants to identify census block groups that include limited English proficiency households, identify the languages spoken in those census block groups, and, under certain circumstances, provide project notifications in languages other than English. Applicants must also describe in the Environmental Justice Public Engagement Plan how they will identify, engage, and accommodate people with limited English proficiency.

C. Environmental Justice Public Engagement Plan

1. NOPR Proposal

98. In the NOPR, the Commission stated that the existing provisions of § 50.4(a) require applicants to develop and file a Project Participation Plan early in the pre-filing process.

164

The Commission explained that this requirement is intended to facilitate stakeholder communications and the dissemination of public information about the proposed project, including meaningful engagement early in the pre-filing process with potentially affected environmental justice communities. The Commission further explained that engagement with environmental justice communities is consistent with a series of executive orders, the

Promising Practices for EJ Methodologies in NEPA Reviews

(

Promising Practices

) report, and the Commission's Equity Action Plan.

165

Accordingly, the Commission proposed to require, under § 50.4(a)(4) as part of the Project Participation Plan, that applicants develop an Environmental Justice Public Engagement Plan describing the applicant's outreach activities that are targeted to identified environmental justice communities.

166

164

NOPR, 181 FERC ¶ 61,205 at P 30.

165

Id.

(citing E.O. 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 11, 1994); E.O. 14008, Tackling the Climate Crises at Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O. 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, 86 FR 7009 (Jan. 20, 2021); Federal Interagency Working Group on Environmental Justice & NEPA Committee,

Promising Practices for EJ Methodologies in NEPA Reviews

(Mar. 2016),

https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf.

; Commission, Equity Action Plan (2022),

https://www.ferc.gov/equity

166

To identify potentially-affected environmental justice communities in individual proceedings, Commission staff uses current U.S. Census American Community Survey data for the race, ethnicity, and poverty data at the State, county, and block group level. As recommended in

Promising Practices,

the Commission currently uses the fifty percent and the meaningfully greater analysis methods to identify minority populations. Specifically, a minority population is present where either: (1) the aggregate minority population of the block groups in the affected area exceeds 50%; or (2) the aggregate minority population in the block group affected is 10% higher than the aggregate minority population percentage in the county. Federal Interagency Working Group on Environmental Justice & NEPA Committee,

Promising Practices for EJ Methodologies in NEPA Reviews

(Mar. 2016),

https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf

. Using

Promising Practices'

low-income threshold criteria method, low-income populations are currently identified as block groups where the percent of a low-income population in the identified block group is equal to or greater than that of the county.

E.g., Transcon. Gas Pipe Line Co. LLC,

186 FERC 61,209, at PP 34-36 (2024).

99. The NOPR explained that the proposed Environmental Justice Public Engagement Plan would require applicants to summarize comments received from potentially impacted environmental justice communities during any previous outreach activities, if applicable, and describe planned outreach activities during the permitting process, including efforts to identify, engage, and accommodate non-English speaking groups or linguistically isolated communities.

167

The proposed plan must also describe the manner in which the applicant will reach out to environmental justice communities about potential mitigation.

168

167

NOPR, 181 FERC ¶ 61,205 at P 31.

168

We note that the proposed

Environmental justice

resource report, discussed further below, would require the applicant to describe any proposed mitigation measures intended to avoid or minimize impacts on environmental justice communities, including any community input received on the proposed mitigation measures and how that input informed such measures.

See infra

Part II.F.4.e.

2. Comments

100. Some commenters question the Commission's authority to require the Environmental Justice Public Engagement Plan, given the reliance on executive orders and guidance. Representatives McMorris Rodgers and Duncan state that the NOPR appears to broadly interpret the Commission's

statutory authority and thus request that the Commission specify what statutory authorities it is relying upon.

169

Conversely, NESCOE argues that the proposed Environmental Justice Public Engagement Plan aligns with the Commission's statutory authority under FPA section 216(b).

170

ClearPath is also concerned that reliance on best practices derived from CEQ, the Environmental Protection Agency (EPA), Census Bureau, and other authoritative sources, introduces uncertainty and delay should applicants have to re-do compliance requirements every time new data or guidance becomes available.

171

169

Representatives McMorris Rodgers and Duncan Comments at 2.

170

NESCOE Comments at 15-26.

171

ClearPath Comments at 4.

101. American Chemistry Council and ClearPath argue that, although they support community engagement, the proposed Environmental Justice Public Engagement Plan does not advance this goal because the proposal imposes extensive new requirements, as well as specific notice and follow-up actions that are likely to undermine community engagement, redirect effort from engagement to duplicative and excessive paperwork, and foster increased procedural litigation and challenges—leading to delays.

172

American Chemistry Council states that the Commission should limit any new planning mandates to outlining strategic goals, planned communication tools and strategies, and desired outcomes.

173

Representatives McMorris Rodgers and Duncan argue that the Environmental Justice Public Engagement Plan includes vague requirements and asks whether the Commission will issue more specific guidelines.

174

ClearPath argues that the Commission failed to explain how the current stakeholder participation revisions are deficient for environmental justice communities, but not for the general public; therefore, it recommends that the Commission continue to utilize its existing public participation procedures and not add a separate, duplicative Environmental Justice Public Engagement Plan.

175

172

American Chemistry Council Comments at 7; ClearPath Comments at 4-5.

173

American Chemistry Council Comments at 7.

174

Representatives McMorris Rodgers and Duncan Comments at 2.

175

ClearPath Comments at 4.

102. On the other hand, several commenters support the requirement for an Environmental Justice Public Engagement Plan. Public Interest Organizations believe that the Commission must take concrete, tangible action to require robust community engagement and partnership.

176

Environmental Law & Policy Center states that this early stakeholder engagement will improve the transmission siting process.

177

Clean Energy Buyers also comment in support but recognize that the success of a plan will depend on the applicant's ability to actually engage with the target communities.

178

176

Public Interest Organizations Comments at 44, 86-89.

177

Environmental Law & Policy Center Comments at 2.

178

Clean Energy Buyers Comments at 8-9.

103. Several commenters request clarification and revision to the proposed requirement for an Environmental Justice Public Engagement Plan. EDF states that because the NOPR was drafted before the issuance of Executive Order 14096, the Commission should review its proposal in light of renewed and strengthened environmental justice requirements to ensure compliance with updated rules and guidance.

179

It also encourages the Commission to mandate engagement on mitigation, including the discussion of alternatives and community benefit programs. Environmental Law & Policy Center urges the Commission to adopt specific recommendations to ensure that engagement is more than a box-checking exercise for developers.

180

NESCOE states that, under the NOPR proposal, applicants would not be required to comply with any actual standards for engaging with environmental justice communities, including documentation, accountability, and enforcement of consequences for inadequate engagement.

181

EDF requests that the Commission periodically review the results of applicants' Environmental Justice Public Engagement Plans and determine whether they are yielding sufficient engagement with environmental justice communities.

182

179

EDF Comments at 9 (referencing E.O. 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251 (Apr. 21, 2023)).

180

Environmental Law & Policy Center Comments at 2.

181

NESCOE comments at 25; EDF Comments at 9.

182

EDF Comments at 9.

104. Several commenters recommend specific methodology and terminology clarifications.

183

Public Interest Organizations ask the Commission to require applicants to use updated information from CEQ and EPA when identifying environmental justice communities as part of their Environmental Justice Public Engagement Plan or providing specificity on the additional sources the Commission expects applicants to use, to ensure consistency and transparency in the methodology selection process.

184

Public Interest Organizations state that the Commission must: prioritize identification methodologies that promote accurate identification of environmental justice communities; provide guardrail language to guide the methodology selection process while creating flexibility; acknowledge the scope and limitations of potential databases and tools, where applicable; and commit to promptly update its methods for identifying environmental justice communities.

185

In addition, they state that the Commission should refine the term “outreach activities” in order to require developers to seek guidance on and then incorporate community-based best practices and methods for both disseminating and requesting information and input from the community.

186

Public Interest Organizations argue that outreach activities should include a reciprocal educational component where developers as well as the community members share and meaningfully engage with each other.

187

183

EDF Comments at 8; Environmental Law & Policy Center Comments at 4.

184

Public Interest Organizations Comments at 86.

185

Id.

at 84-85.

186

Id.

at 88.

187

Id.

105. EDF and Policy Integrity recommend that the Commission and developers utilize specific tools such as the EPA's EJScreen Tool, CEQ's Climate and Economic Justice Screening Tool (CEJST), and State-developed mapping tools to identify environmental justice communities.

188

Public Interest Organizations agree on the need for more nuanced and fulsome identification of environmental justice communities, but state that utilization of the EJScreen and CEJST can only be useful first steps in this methodology given that both tools have inherent limitations.

189

188

EDF Comments at 9; Policy Integrity Comments at 24-37; Environmental Law & Policy Center Comments at 4.

189

Public Interest Organizations Comments at 84-85.

106. Policy Integrity states that the Commission should require incorporation of screening tools that use a combination of environmental and socioeconomic proxies, such as proximity to pollution, because relying upon demographic-only proxies like income and race might not capture localized harms and omit communities that would otherwise satisfy the proposed definition of environmental

justice community.

190

It asks the Commission to recognize any historically marginalized community that bears any type of disproportionate environmental burden or faces disparities in access to environmental benefits as an environmental justice community.

191

In addition, Policy Integrity states that the Commission should establish a mechanism for communities to self-identify as environmental justice communities, and then adjudicate whether a community should be considered an environmental justice community in light of submitted evidence.

192

190

Policy Integrity Comments at 24.

191

Id.

at 2.

192

Id.

at 37-39.

107. Commenters make additional recommendations in support of transparency and accountability in the process of engaging with environmental justice communities, including requiring notices in languages other than English, maintaining a project website, and using additional notification methods.

193

NESCOE recommends several engagement best practices such as holding in-person meetings “in locations that are accessible by public transportation . . . [and] at times that would allow working individuals to attend,” providing childcare during such meetings, designating a community liaison, and disseminating non-technical information that meaningfully explains how one might be impacted by the project.

194

Some commenters recommend that the Commission's Office of Public Participation have a role in the identification of barriers to participation as well as helping foster engagement between the Commission, applicants, and environmental justice communities.

195

193

ClearPath Comments at 5; Public Interest Organizations Comments at 87; NESCOE Comments at 26.

194

NESCOE Comments at 26.

195

Id.

at 25-26; Public Interest Organizations Comments at 89-91.

108. NESCOE and Clean Energy Buyers suggest that the Commission should ensure that its public engagement and environmental justice review practices are generally consistent and coordinated with applicable State policies and agencies.

196

Joint Consumer Advocates argue that the Commission's proposed approach only requires applicants to describe outreach activities and summarize comments, which largely places the burden on disadvantaged populations to describe anticipated impacts to human health or the environment, rather than engaging State agencies like consumer advocate offices.

197

196

NESCOE Comments at 26; Clean Energy Buyers Comments at 9.

197

Joint Consumer Advocate Comments at 18.

3. Commission Determination

109. We adopt the NOPR proposal to require an Environmental Justice Public Engagement Plan under § 50.4(a)(4) as a component of the Project Participation Plan, with the following modification. The NOPR proposed that the plan describe an applicant's efforts to identify, engage, and accommodate “non-English speaking groups and linguistically isolated communities;” however, this final rule updates that terminology to “people with limited English proficiency.”

110. As an initial matter, we disagree that requiring applicants to include an Environmental Justice Public Engagement Plan as part of its Project Participation Plan exceeds the Commission's statutory authority. NEPA requires the Commission to evaluate the environmental impacts of any major Federal action, such as the issuance of a permit to site electric transmission facilities under section 216 of the FPA.

198

The Commission's obligation to take a “hard look” at such impacts under NEPA requires consideration of impacts on environmental justice communities, much as it requires the Commission to consider impacts on other affected communities.

199

This requirement facilitates the development of the record, including the

Environmental justice

resource report, that the Commission needs to assess impacts on environmental justice communities by providing a roadmap for applicants' engagement with environmental justice communities and an opportunity for comment on that engagement. In addition, requiring applicants to describe engagement with identified environmental justice communities will assist the Commission in meeting its statutory obligations under FPA section 216. Because environmental justice communities may experience environmental impacts more acutely than other communities or targeted methods of engagement may be more effective,

200

we appropriately require that an applicant develop a targeted outreach plan for environmental justice communities.

201

198

42 U.S.C. 4332(2)(C);

see Sierra Club

FERC,

38 F.4th 220, 226 (D.C. Cir. 2022).

199

See Sierra Club

FERC,

867 F.3d 1357, 1368 (D.C. Cir. 2017).

200

For example, targeted methods of engagement may include additional notification to community leaders, religious institutions, and other community resources, and the publishing of project information via community newspapers and radio stations.

201

See

E.O. 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, 25252 (Apr. 21, 2023).

111. Requiring an applicant to describe its outreach targeted to environmental justice communities as part of its Project Participation Plan is also consistent with the Executive Orders that direct Federal agencies to identify and address disproportionate and adverse human health or environmental effects of their actions on minority and low-income populations (

i.e.

environmental justice communities).

202

In response to EDF's request that we review Executive Order 14096, we note that the new Executive Order did not rescind Executive Order 12898. The Commission's current practices as an independent regulatory agency are largely consistent with the principles and goals of Executive Order 14096.

203

This requirement is also consistent with the Commission's 2022 Equity Action Plan, which promotes equitable processes and outcomes for underserved communities, including environmental justice communities, at the Commission.

204

202

See

E.O. 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 11, 1994); E.O. 14008, Tackling the Climate Crises at Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O. 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, 86 FR 7009 (Jan. 20, 2021); E.O. 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251 (Apr. 21, 2023).

203

E.O. 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251 (Apr. 21, 2023).

204

FERC,

Equity Action Plan

(2022),

https://www.ferc.gov/equity.

112. Regarding comments stating that the proposed Environmental Justice Public Engagement Plan does not advance the goal of community engagement and imposes extensive new or duplicative requirements, we disagree. The Commission currently requires a Project Participation Plan in § 50.4(a), which requires applicants to identify specific tools and actions to facilitate stakeholder communications and public information, including those tools and actions used to engage stakeholders.

205

To advance stakeholder participation under § 50.4, we are requiring applicants to plan and target their outreach to ensure appropriate and effective meaningful engagement with

potentially affected environmental justice communities.

205

Consistent with the revised definition of “stakeholder” in § 50.1 in this final rule, all stakeholders mean any “Federal, State, interstate, or local agency; any Indian Tribe; any affected landowner; any environmental justice community member; or any other interested person or organization.”

113. The requirement to address targeted outreach to identified environmental justice communities merely codifies the expectation that engagement with stakeholders in differing circumstances will require differing approaches in order to be effective. Therefore, we do not believe this requirement imposes additional administrative burden or delay for applicants. This separate provision aims to ensure that applicants do not use a “one size fits all” approach to outreach, and it fosters the inclusion of outreach techniques that are tailored to communication with environmental justice communities.

114. With regard to potential burdens placed on environmental justice communities in having to communicate potential adverse impacts caused or exacerbated by the project, we acknowledge this concern and require applicants to identify the measures taken to accommodate environmental justice communities who may face barriers to traditional outreach or engagement methods. Additionally, the Commission's Office of Public Participation will continue to engage with the public and act as a liaison to members of the public affected by and interested in Commission proceedings.

115. In response to comments recommending that the Commission require the utilization of specific screening tools to identify environmental justice communities such as CEQ's CEJST, we decline to do so. The Commission currently uses the smallest geographic data area available, census block groups, to identify environmental justice communities in accordance with the identification methodology put forth in

Promising Practices

and described above.

206

In contrast, CEJST uses census tracts, a larger geographic data area, to identify “disadvantaged communities” based on a variety of thresholds. We decline to require the use of alternative screening tools that do not provide a localized review of smaller environmental justice communities in block groups. Further, to the extent that commenters argue that the Commission should utilize the tools to expand the definition of environmental justice communities, we decline for the reasons expressed addressing definitions below.

207

206

Supra

note 166.

E.g., ANR Pipeline Co.,

185 FERC ¶ 61,191, at P 96 (2023);

see also

E.O. 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251 (Apr. 21, 2023).

229

See

E.O. 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 11, 1994);

see also

EPA, EJ 2020 Glossary (Feb. 2024),

https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf.

230

See, e.g., Columbia Gas Transmission, LLC,

186 FERC ¶ 61,048, at P 20 n.36 (2024);

Andrew Peklo III,

186 FERC P 61,208, at P 23 n.41 (2024).

231

Supra

note 166.

135. We define “environmental justice community” with the intent of neither too rigidly limiting nor strictly defining a set list of demographic populations or communities. We are intentionally allowing flexibility in the definition of “environmental justice community,” as this acknowledges that there are many environmental or human health qualifiers that may need to be analyzed separately by Commission staff to determine anticipated impacts on potential environmental justice communities. This flexibility is intended to strike a balance between applying an identification methodology that can be used in all proceedings and allowing the identification of other populations, during scoping or in comments filed in the record of individual proceedings, that may fall outside of the categories of minority populations, low-income populations, or indigenous peoples. We do not agree that this flexibility renders the definition practically unworkable, as applicants seeking to develop energy infrastructure in other contexts have been able to use the definition and identification methodology to successfully develop and submit the information that the Commission needs to process applications.

232

Likewise, we do not agree that the definition of “environmental justice community” is so expansive that it cannot be readily understood and applied.

232

E.g., ANR Pipeline Co.,

185 FERC ¶ 61,191 at P 96.

136. Commenters' assertion that transmission line infrastructure is not a source of “pollution” as contemplated under the definition of “environmental justice community” is inapposite. Defining an environmental justice community as one that has been overburdened by pollution acknowledges the historical burdens of disproportionate rates of pollution faced by environmental justice communities.

233

We believe that there are many ways in which transmission line infrastructure may result in reasonably foreseeable adverse impacts on environmental justice communities during construction, operation, and maintenance of the project facilities.

233

See

E.O. 14008, Tackling the Climate Crises at Home and Abroad, 86 FR 7619 (Jan. 27, 2021).

137. We acknowledge commenters' concerns regarding use of the word “disadvantaged” in the definition of “environmental justice community.” Given that the definition of environmental justice communities adopted in this final rule includes language indicating its applicability to communities that have been historically marginalized and overburdened by pollution, we agree that it is not necessary to include the word “disadvantaged” in the definition and have removed it in this final rule. We also decline to adopt a separate definition for the term “overburdened” or to add “underserved” to the definition. As explained above, the proposed definition has allowed the Commission, applicants, and stakeholders to have a general sense of the types of communities that may fall under the phrase without the need for further definition or including additional terms, while the Commission's identification methodology provides a common understanding of the steps necessary to identify environmental justice communities.

138. We decline to adopt the phrase “communities with significant representations of communities of Color” because we conclude that the definition we are adopting is sufficiently broad to identify communities that have been historically marginalized and overburdened by pollution without that addition. We will continue our practice of defining “environmental justice communities” as including, but not being limited to, minority populations, low-income populations, or indigenous peoples.

b. Definition of National Interest Electric Transmission Corridor

i. NOPR Proposal

139. The Commission proposed in the NOPR to revise the definition of “national interest electric transmission corridor” to include any geographic area that is expected to experience energy transmission capacity constraints or congestion, for consistency with the IIJA's amendments to section 216(a).

ii. Comments

140. While EDF states that the proposed definition of “national interest electric transmission corridor” is appropriate, Farm Bureaus and Kentucky Commission state that the definition is too broad, as a National Corridor could include any geographic area that has any amount of congestion.

234

Kentucky Commission requests that the Commission modify the definition to include a threshold for congestion, while Farm Bureaus request that the Commission reopen public comment on this proposal after DOE has identified National Corridors.

235

EDF notes that the Commission and DOE should coordinate to ensure consistent definitions.

234

EDF Comments at 5; Farm Bureaus Comments at 2; Kentucky Commission Comments at 3.

235

Kentucky Commission Comments at 3; Farm Bureaus Comments at 2.

iii. Commission Determination

141. We adopt the definition of “national interest electric transmission corridor” proposed in the NOPR in this final rule. As stated in the NOPR, the Commission proposed changes to the definition of “national interest electric transmission corridor” strictly to incorporate the revisions to the term in the IIJA's amendment to section 216(a) of the FPA, and we continue to find it appropriate to define this term based on the statute. Section 216(a) of the FPA designates the Secretary of DOE as the sole authority to determine whether a geographic area is experiencing, or expected to experience, sufficient capacity constraints or congestion to warrant the designation of a “national interest electric transmission corridor,” and the Commission will defer to DOE's interpretation of the statute for those purposes. Additionally, as the proposed definition is derived directly from the statute, it is unnecessary to wait to finalize this regulation until DOE has identified a National Corridor.

236

In DOE's recent Guidance on section 216(a), DOE's definition of a National Corridor closely matches the Commission's proposed definition. DOE defined a National Corridor as “. . . a geographic area where, based on the Needs Study or other relevant information, DOE has identified . . . present or expected transmission capacity constraints or congestion that adversely affects consumers, and which has been designated by the Secretary as a [National Corridor].” DOE Grid Deployment Office, Guidance on Implementing Section 216(a) of the Federal Power Act, at 16 (Dec. 19, 2023).

c. Definition of Stakeholder

i. NOPR Proposal

142. The Commission in the NOPR proposed to revise the definition of “stakeholder” for clarity and to ensure that environmental justice community members and other interested persons or organizations are covered by the definition. As proposed, § 50.1 defines “stakeholder” as any Federal, State, interstate, or local agency; any Tribal government; any affected landowner; any environmental justice community member; or any other interested person or organization.

ii. Comments

143. Impacted Landowners state that grouping severely impacted landowners

with individuals who have generalized environmental concerns, or project advocates who will profit from the project, and considering them all equal “stakeholders” is unfair and unjust. Impacted Landowners suggest that a stakeholder should be defined as a person or entity with an interest in a project but who will experience no impacts.

237

Niskanen states that the definition of stakeholder is too broad and suggests the definition be modified to include any Federal, State, interstate, Tribal, or local agency or Tribal government involved with approving or whose interests may be affected by the proposed transmission facilities, and any environmental justice community that could be potentially impacted in some way by a proposed project.

238

237

Impacted Landowners Comments at 22.

238

Niskanen Comments at 9-11.

144. Public Interest Organizations recommend that the Commission amend the definition of stakeholder to replace “Tribal government” with “Indian Tribe,” and that the Commission should add “Indigenous peoples” to the definition of stakeholders.

239

Public Interest Organizations explain that the distinction between Indian Tribes and any Tribal community member will preserve the government-to-government relationship between the Federal government and Indian Tribes. Niskanen also notes that the proposed definition for stakeholder as it relates to “any Tribal government” is inconsistent with the definition given in § 50.1 of “Indian Tribe.”

239

Public Interest Organizations Comments at 53-54.

iii. Commission Determination

145. We adopt the definition of “stakeholder” proposed in the NOPR, with one modification. We agree with Public Interest Organizations and Niskanen that the definition of “stakeholder” should include the term “Indian Tribe” instead of “Tribal government,” for consistent use of defined terms in the Commission's regulations. Therefore, this final rule adopts usage of “Indian Tribe” in the definition of “stakeholder.” Similarly, the use of “Tribal government” in applicant notification requirements in § 50.4(c)(1) is replaced with “Indian Tribe.”

146. We also decline to limit the definition of stakeholders to entities that may be interested but would experience no impacts from a project, or to only agencies or governments that would be affected by a project. The extent of project-related effects is evaluated and refined throughout the review process and may not be well understood early in the review process when engagement with stakeholders should begin. Further, impacts from a project can vary from direct environmental effects to indirect effects on users of public spaces to non-environmental effects for individuals who will experience less congestion, increased reliability of their electric grid, or rate changes. Further, Niskanen's suggested definition would remove from consideration landowners or other individuals who do not meet the definition of affected landowner and are not members of an environmental justice community, but who may be affected by a project. As such, we find it appropriate to allow any interested party to be considered a stakeholder.

147. With respect to Public Interest Organizations' request to add “Indigenous peoples” to the definition of “stakeholder,” we note that Indigenous peoples are considered stakeholders under the definition proposed and adopted in this final rule.

d. Definition of Affected Landowner

i. NOPR Proposal

148. In the NOPR, the Commission did not propose any revisions to the existing definition of “affected landowners” in § 50.1, which defines “affected landowners” as owners of property interests, as noted in the most recent county/city tax records as receiving the tax notice, whose property: (1) is directly affected (

i.e.,

crossed or used) by the proposed activity including all facility sites, rights-of-way, access roads, staging areas, and temporary workspace; or (2) abuts either side of an existing right-of-way or facility site owned in fee by any utility company, or abuts the edge of a proposed facility site or right-of-way which runs along a property line in the area in which the facilities would be constructed, or contains a residence within 50 feet of a proposed construction work area. Nevertheless, the NOPR sought comment on whether the Commission should revise the definition to include landowners located within a certain geographic distance from the proposed project facilities to address effects on visual (or other) resources, and, if so, what geographic distance should be used and why.

ii. Comments

149. ClearPath opposes any revisions to the existing definition of “affected landowners,” arguing that the Commission has not provided evidence that the definition is deficient or that Congress directed the Commission to revise the definition.

240

ClearPath also states that the NOPR fails to address whether expanding the definition of “affected landowners” would qualify the additional affected landowners for compensation under eminent domain, which may make projects economically unviable.

241

240

ClearPath Comments at 5.

241

Id.

150. Several commenters note that property tax bills do not list more than one person even if there are multiple owners of property, and do not list tenants with possessory interests. These commenters request that the Commission revise the definition of “affected landowners” to include any person with a legal right or interest in the property (

e.g.,

a landowner, a contract purchaser of record, a person possessing the property under a lease, a record lienholder, a record encumbrancer of the property, and conservation easement holders).

242

EDF and Public Interest Organizations ask that the Commission clarify the definition of “affected landowners” as it relates to Tribal lands, particularly whether individual Tribal members residing on trust land satisfy the definition, and request that Tribes be included in the definition due to trust responsibilities.

243

242

EDF Comments at 5; Farm Bureaus Comments at 2-3; Land Trust Alliance Comments at 2-3.

243

EDF Comments at 5; Public Interest Organizations Comments at 26-27.

151. EDF, Niskanen, Public Interest Organizations, and SEIA state that the Commission should use DOE's definition of “affected landowners” from its then-current regulations implementing section 216(h) of the FPA (

i.e.,

landowners located within either 0.25 miles of a proposed study corridor or route of a qualifying project or at a minimum distance specified by State law, as well as those with a residence within 3,000 feet of a proposed construction work area for a qualifying project),

244

because it is broader than the Commission's definition and will provide for regulatory consistency between the Commission and DOE.

245

Public Interest Organizations argue that

limiting affected landowners to those within 50 feet of proposed facilities fails to provide surrounding residents and communities the opportunity to meaningfully participate in the permitting process, and may cause landowners beyond this distance to feel marginalized, which may add unnecessarily high regulatory and litigation risks.

246

244

10 CFR 900.3 (2023). On May 1, 2024, DOE issued a final rule revising its regulations implementing section 216(h) of the FPA that, among other things, revises this definition and removes the distance criteria.

See

DOE,

Coordination of Federal Authorizations for Electric Transmission Facilities,

89 FR 35312 (May 1, 2024). Regarding the revised definition to be codified at 10 CFR 900.2, DOE provides that a “potentially affected landowner” is one whose real property interest is potentially affected directly or indirectly by a proposed project. 89 FR 35340. DOE's final rule is effective on May 31, 2024.

245

EDF Comments at 6; Niskanen Comments at 6-9; Public Interest Organizations Comments at 25-26.

246

Public Interest Organizations Comments at 25-26.

152. Impacted Landowners request that the Commission use the term “impacted landowners” instead of “affected landowners,” noting that it is the degree of impact, not an arbitrary distance, that creates an impacted landowner.

247

Niskanen indicates that the current definition does not adequately consider visual impacts or light pollution and subsequent devaluation of property.

248

EDF and Land Trust Alliance suggest that the Commission use the results of a visual impact assessment to identify affected landowners, and define “affected landowners” as any landowner whose viewshed or ecosystem services may be affected.

249

Conversely, ClearPath argues that broadly expanding the affected landowner definition to anyone whose viewshed is affected could include properties up to 17 miles away and that the resource report addressing visual impacts in an application requires evaluating visual effects without the need to increase the affected landowner definition.

250

247

Impacted Landowners Comments at 21.

248

Niskanen Comments at 6-9.

249

EDF Comments at 6; Land Trust Alliance Comments at 3.

250

ClearPath Comments at 5.

iii. Commission Determination

153. We continue to find the definition of affected landowner in our existing regulations appropriate and adopt no changes.

154. In response to ClearPath's concern that changing the definition might mean additional landowners would be entitled to compensation, we note that section 216(f) of the FPA provides that any right-of-way acquired for construction or modification of transmission facilities through the use of eminent domain is considered a taking of private project for which just compensation is due. Whether a landowner is entitled to just compensation under section 216(f) is in no way connected to how the Commission's regulations define an affected landowner.

155. As part of the Commission's review process, we seek to ensure that landowners are given an opportunity to submit comments and participate in the Commission proceeding. Therefore, the definition of “affected landowners” is meant to encompass owners of property that: are proposed to be crossed by the project, are most likely to be affected by minor route adjustments or variations that may occur to avoid or minimize impacts to sensitive resources based on environmental survey results, or may be impacted by construction activities conducted in close proximity. The definition of “stakeholder” is then intended to capture other landowners and parties who may have an interest in a project or may be otherwise affected by a project and can inform the Commission's review of an application.

156. We acknowledge the numerous requests for a broader and more inclusive definition of an affected landowner (

e.g.,

to include lessees, multiple property owners, conservation easement holders) but decline to adopt such a definition. The definition of “affected landowners” sets forth the scope of other regulatory obligations, including specific notification requirements, and applicants must have a practicable means of determining which entities fall within the scope of the definition. We find that there are not sufficient means for an applicant to readily identify a broader set of entities, as proposed by commenters, particularly for lengthy proposed transmission lines. The existing definition of “affected landowners” is practicable and likely to identify most entities with interests in the property. While a Tribe or member of a Tribe would not be an affected landowner if they occupy lands held in trust by the United States, a Tribe or member of a Tribe may qualify as an affected landowner if they occupy land that is not held in trust by the United States and otherwise meet the definition.

251

We note that with regard to the Commission's trust responsibilities, Tribes are afforded additional outreach and consultations consistent with the Commission's consultation practices under its Tribal Consultation Policy, as well as the Commission's trust responsibilities and government-to-government relationships with Tribes.

Pol'y Statement on Consultation with Indian Tribes in Comm'n Procs.,

Order No. 635, 68 FR 46452 (Sept. 5, 2033), 104 FERC ¶ 61,108 (2003),

revised,

Order No. 863, 84 FR 56940 (Oct. 24, 2019) 169 FERC ¶ 61,036 (2019). The policy statement is codified at 18 CFR 2.1c (2023). These activities do not depend on whether Tribal members are “affected landowners.”

157. While there are numerous requests for larger geographic bounds to be used in the definition, we decline to modify the definition in this manner. Commenters suggest such a modification is necessary to ensure a broader group of stakeholders who may be impacted by a proposed project are aware of and have an opportunity to share their views on the proposal. We note, however, that the applicant must also notify all landowners with a residence within a quarter mile of the edge of the construction right-of-way under the notification requirements in § 50.4(c)(1). Moreover, stakeholders do not need to be an affected landowner or live in a residence within a quarter mile of the proposed site to participate in the Commission's proceedings. Under the definition of “stakeholder” in § 50.1, any interested entity or person may file comments as a stakeholder and participate in the Commission's pre-filing and application processes. We believe that the existing definition of “affected landowners” and existing quarter mile notification requirement provides individuals with appropriate notification of a proposed project to allow an opportunity to participate in Commission proceedings.

158. Although some commenters argue that the definition of affected landowners should include landowners who may be impacted by visual or other project effects, the geographic extent of impacts will vary by region and project, and it is therefore difficult to identify a bright-line definition that could be used by an applicant to identify landowners who may experience visual impacts shortly after the commencement of the pre-filing process (when initial notifications to affected landowners must occur). Proposed transmission projects will be subject to NEPA, and the environmental effects of a project (including visual impacts) will be analyzed and addressed through the NEPA process. The NEPA and FPA processes include opportunities for landowners and other stakeholders to participate in the review process and comment on anticipated effects of a project, including visual impacts.

2. Section 50.3—Filing and Formatting Requirements

159. Section 50.3 establishes the filing and formatting requirements for submissions in the Commission's pre-filing and application processes. In the NOPR, the Commission proposed to revise § 50.3(b) to eliminate the requirement that applications, amendments, and all exhibits and other submissions must be submitted in an original and seven conformed copies. Instead, to reduce waste, the Commission proposed that applicants only be required to make these submissions in electronic format. We received no comments regarding this proposed change. This final rule adopts § 50.3 as proposed.

3. Section 50.4—Stakeholder Participation

a. Project Participation Plan

i. NOPR Proposal

160. The Commission explained in the NOPR that § 50.4(a) requires each applicant to develop and file a Project Participation Plan for use during the pre-filing and application processes to ensure that stakeholders have access to timely and accurate information about the proposed project and permitting process. The Project Participation Plan must, among other things, identify specific tools and actions to facilitate stakeholder communications and public information, including a regularly updated website. In the NOPR, the Commission proposed to revise § 50.4(a)(1) to incorporate minor clarifying language and specify that an applicant's website must include an interactive mapping component to provide users with the ability to locate the proposed facilities in relation to specific properties and other features. Additionally, as discussed above, the Commission proposed to require an applicant to develop and file an Environmental Justice Public Engagement Plan as part of its Project Participation Plan under § 50.4(a) early in the pre-filing process.

252

See

discussion

supra

Part II.C.

ii. Comments

161. Arizona Game and Fish recommends that § 50.4's Project Participation Plan include a requirement for applicants to consult or coordinate with specific entities, such as State wildlife or natural resource agencies.

253

Maryland Commission urges that county and municipal governments affected by a proposed transmission line be given the opportunity to participate fully in the Commission's proceeding and provide recommendations.

254

253

Arizona Game and Fish Comments at 2-3.

254

Maryland Commission Comments at 8.

162. The Yurok Tribe requests that the Commission require applicants to develop a Tribal Participation Engagement Plan in the pre-filing process, similar to the Environmental Justice Public Engagement Plan.

255

Yurok Tribe Comments at 27-28.

iii. Commission Determination

163. We adopt the NOPR proposal to revise the Project Participation Plan requirements to incorporate minor clarifications, specify that an applicant's website must include an interactive mapping component, and include an Environmental Justice Public Engagement Plan and a Tribal Engagement Plan.

164. Regarding requests to include coordination and consultation requirements for State, county and local agencies or governments in the Project Participation Plan, we do not believe such changes are needed. As further discussed below, the § 50.4(c) project notification requirements adopted in this final rule extend to, among others, permitting entities and other local, State, and Federal governments and agencies involved in the project, which include the entities that Arizona Game and Fish and Maryland Commission suggest. The project notification requirements inform recipients how to participate in the Commission's proceeding, including opportunities to provide recommendations to the Commission and how to contact the applicant. Local agencies and governments are typically included on project stakeholder mailing lists, as they are stakeholders as defined by § 50.1, who receive Commission notices regarding opportunities to submit comments, attend meetings and site visits, and participate in the pre-filing and application phases; and we encourage their participation. The Commission will consider comments submitted by any State, county, or local agencies during the processing of an application.

165. We adopt the Yurok Tribe's suggestion to require applicants to address outreach targeted to Indian Tribes, similar to the requirement to include an Environmental Justice Public Engagement Plan in an applicant's Project Participation Plan. Requiring applicants to develop a plan to identify and engage Tribal communities will facilitate the development of the record, including the

Tribal resources

resource report as discussed below, which the Commission needs to assess impacts on Indian Tribes. Therefore, new § 50.4(a)(5) requires an applicant to include a Tribal Engagement Plan as a component of the Project Participation Plan that addresses all outreach that is targeted to identified Tribes, including a summary of comments from potentially affected Tribes in previous outreach, a description of planned Tribal outreach activities, and a description of how the applicant will engage Tribes about potential mitigation measures.

256

We note that this new provision of the Project Participation Plan does not affect and is separate from the Commission's consultation practices under its Tribal Consultation Policy, as well as existing trust responsibilities and government-to-government relationships with Tribes. Order No. 635, 104 FERC ¶ 61,108,

revised,

Order No. 863, 169 FERC ¶ 61,036. The policy statement is codified at 18 CFR 2.1c (2023).

b. Project Notification Requirements

i. NOPR Proposal

166. Section 50.4(c) sets forth the project notification requirements for applicants. Section 50.4(c)(1) requires applicants to distribute, by mail and newspaper publication, project notifications within specified time periods, first, following commencement of the pre-filing process and, second, after an application has been filed. Section 50.4(c)(1) directs the applicant to notify, among others, all affected landowners and landowners with a residence within a quarter mile from the edge of the construction right-of-way for the proposed project. In the NOPR, the Commission proposed to revise § 50.4(c)(1) for clarity and to ensure that applicants provide notification of the proposed project to all interested individuals and organizations. The NOPR also sought comment on whether a quarter-mile limit is sufficient and, if not, what geographic distance should be used and why.

167. Section 50.4(c)(2)(i) describes the required contents of the Pre-filing Notification. For clarity, in the NOPR, the Commission proposed organizational changes in the regulations to distinguish the requirements that pertain to any Pre-filing Notification that is sent by mail or published in a newspaper (proposed § 50.4(c)(2)(i)) from the requirements that pertain to any Pre-filing Notification that is sent by mail specifically to an affected landowner (proposed § 50.4(c)(2)(ii)).

168. The Commission in the NOPR proposed to add a requirement that any Pre-filing Notification mailed to an affected landowner also include a copy of a Commission document titled “

Landowner Bill of Rights in Federal Energy Regulatory Commission Electric Transmission Proceedings”

(Landowner Bill of Rights). The Commission also proposed in the NOPR to require that any Pre-filing Notification sent by mail or published in the newspaper include information clarifying that the Commission's pre-filing and application processes are separate from any simultaneous State siting proceeding and explaining how to participate in any such State siting proceeding.

169. In the NOPR, the Commission explained that it expects applicants to make a good faith effort to ensure that individuals and organizations entitled to receive project notifications can comprehend the contents of such notifications. Accordingly, the NOPR

directed applicants to consider the need for project notifications in languages other than English as part of the Environmental Justice Public Engagement Plan, as described above. The NOPR also sought comment on what methods of notification beyond mail and newspaper publication might be utilized in order to effectively reach the largest possible number of stakeholders.

ii. Comments

170. Public Interest Organizations and Niskanen suggest that the Commission require the two applicant project notifications in § 50.4(c) to include information on how to become an intervenor in a Commission proceeding and the consequences of failing to intervene, namely, lacking standing to petition for rehearing and pursue judicial review of an order issued by the Commission.

257

Public Interest Organizations also request that § 50.4(c)(2)(iii) of the Commission's regulations be modified to require inclusion of the Landowner Bill of

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