On August 10, 2023 in response to incentives made available through the Bipartisan Infrastructure Law and the Inflation Reduction Act, the U.S. Department of Energy (“DOE”) proposed reforms to its regulations governing the coordination of Federal authorizations for the development of interstate, onshore electric transmission facilities and to establish the Coordinated Interagency Transmission Authorizations and Permits Program (“CITAP Program”). The main goal of the CITAP Program, which will be administered by DOE’s Grid Deployment Office, is to “reduce the time required for transmission project developers to receive decisions on Federal authorizations for transmission projects.” Public comments are due by 11:59pm ET on October 2, 2023.
As enacted by the Energy Policy Act of 2005, section 216(h) of the Federal Power Act (“FPA”) authorizes DOE to serve as the lead agency for Federal authorizations and environmental reviews required to site electric transmission facilities. Pursuant to that authority, DOE had previously entered into a memorandum of understanding (“MOU”) with nine other Federal agencies to facilitate such coordination and established an Integrated Interagency Pre-Application Process (“IIP Process”). As part of a recent update to that MOU, DOE is proposing to revise its regulations implementing FPA section 216, including making improvements to the IIP Process and the establishment of the CITAP Program.
In order to streamline the review process, DOE proposes to establish the CITAP Program to improve the IIP Process for submitting materials necessary for evaluating Federal authorizations thereunder, to allow DOE to serve as the lead agency for purposes of environmental review under the National Environmental Policy Act (“NEPA”), and set intermediate milestones and deadlines targeting a final decision within two years from its notice of intent to prepare an Environmental Impact Statement (“EIS”). Further, DOE proposes that participation in the IIP Process should be mandatory for the project’s proponent, with Federal agencies participating voluntarily through the MOU and other governmental entities such as state and tribal authorities participating at their discretion. DOE also proposes to improve the IIP Process to allow earlier identification of potential environmental and community impacts through information collection and meetings with Federal agencies. Additionally, DOE proposes to simplify the development of an administrative record by incorporating the IIP Process administrative file into a single docket managed by DOE and any co-lead agency under NEPA. As lead agency under NEPA, DOE proposes to be responsible for preparing a single EIS to serve as the NEPA document for all of the project’s Federal authorizations. Finally, DOE proposes to limit the CITAP Program to high voltage projects of 230 kV and above but is also proposing to establish a path for non-qualifying projects to seek assistance under the regulations.
According to DOE, the CITAP Program “does not replace any state or local government permitting or siting authorities or any requirement under Federal law.” However, on May 9, 2023, DOE issued a Notice of Intent and Request for Information to separately establish a process to designate National Interest Electric Transmission Corridors (“NIETC”). FPA section 216 authorizes DOE to designate NIETCs, which opens up Federal financing tools through the Bipartisan Infrastructure Law and the Inflation Reduction Act for electric transmission facilities, and further authorizes FERC to permit those facilities over denials at the state and local levels.