16 U.S.C. § 824p : US Code - Section 824P: Siting of interstate electric transmission facilities

Search 16 U.S.C. § 824p : US Code - Section 824P: Siting of interstate electric transmission facilities

(a) Designation of national interest electric transmission
corridors
(1) Not later than 1 year after August 8, 2005, and every 3 years
thereafter, the Secretary of Energy (referred to in this section as
the "Secretary"), in consultation with affected States, shall
conduct a study of electric transmission congestion.
(2) After considering alternatives and recommendations from
interested parties (including an opportunity for comment from
affected States), the Secretary shall issue a report, based on the
study, which may designate any geographic area experiencing
electric energy transmission capacity constraints or congestion
that adversely affects consumers as a national interest electric
transmission corridor.
(3) The Secretary shall conduct the study and issue the report in
consultation with any appropriate regional entity referred to in
section 824o of this title.
(4) In determining whether to designate a national interest
electric transmission corridor under paragraph (2), the Secretary
may consider whether -
(A) the economic vitality and development of the corridor, or
the end markets served by the corridor, may be constrained by
lack of adequate or reasonably priced electricity;
(B)(i) economic growth in the corridor, or the end markets
served by the corridor, may be jeopardized by reliance on limited
sources of energy; and
(ii) a diversification of supply is warranted;
(C) the energy independence of the United States would be
served by the designation;
(D) the designation would be in the interest of national energy
policy; and
(E) the designation would enhance national defense and homeland
security.
(b) Construction permit
Except as provided in subsection (i) of this section, the
Commission may, after notice and an opportunity for hearing, issue
one or more permits for the construction or modification of
electric transmission facilities in a national interest electric
transmission corridor designated by the Secretary under subsection
(a) of this section if the Commission finds that -
(1)(A) a State in which the transmission facilities are to be
constructed or modified does not have authority to -
(i) approve the siting of the facilities; or
(ii) consider the interstate benefits expected to be achieved
by the proposed construction or modification of transmission
facilities in the State;
(B) the applicant for a permit is a transmitting utility under
this chapter but does not qualify to apply for a permit or siting
approval for the proposed project in a State because the
applicant does not serve end-use customers in the State; or
(C) a State commission or other entity that has authority to
approve the siting of the facilities has -
(i) withheld approval for more than 1 year after the filing
of an application seeking approval pursuant to applicable law
or 1 year after the designation of the relevant national
interest electric transmission corridor, whichever is later; or
(ii) conditioned its approval in such a manner that the
proposed construction or modification will not significantly
reduce transmission congestion in interstate commerce or is not
economically feasible;
(2) the facilities to be authorized by the permit will be used
for the transmission of electric energy in interstate commerce;
(3) the proposed construction or modification is consistent
with the public interest;
(4) the proposed construction or modification will
significantly reduce transmission congestion in interstate
commerce and protects or benefits consumers;
(5) the proposed construction or modification is consistent
with sound national energy policy and will enhance energy
independence; and
(6) the proposed modification will maximize, to the extent
reasonable and economical, the transmission capabilities of
existing towers or structures.
(c) Permit applications
(1) Permit applications under subsection (b) of this section
shall be made in writing to the Commission.
(2) The Commission shall issue rules specifying -
(A) the form of the application;
(B) the information to be contained in the application; and
(C) the manner of service of notice of the permit application
on interested persons.
(d) Comments
In any proceeding before the Commission under subsection (b) of
this section, the Commission shall afford each State in which a
transmission facility covered by the permit is or will be located,
each affected Federal agency and Indian tribe, private property
owners, and other interested persons, a reasonable opportunity to
present their views and recommendations with respect to the need
for and impact of a facility covered by the permit.
(e) Rights-of-way
(1) In the case of a permit under subsection (b) of this section
for electric transmission facilities to be located on property
other than property owned by the United States or a State, if the
permit holder cannot acquire by contract, or is unable to agree
with the owner of the property to the compensation to be paid for,
the necessary right-of-way to construct or modify the transmission
facilities, the permit holder may acquire the right-of-way by the
exercise of the right of eminent domain in the district court of
the United States for the district in which the property concerned
is located, or in the appropriate court of the State in which the
property is located.
(2) Any right-of-way acquired under paragraph (1) shall be used
exclusively for the construction or modification of electric
transmission facilities within a reasonable period of time after
the acquisition.
(3) The practice and procedure in any action or proceeding under
this subsection in the district court of the United States shall
conform as nearly as practicable to the practice and procedure in a
similar action or proceeding in the courts of the State in which
the property is located.
(4) Nothing in this subsection shall be construed to authorize
the use of eminent domain to acquire a right-of-way for any purpose
other than the construction, modification, operation, or
maintenance of electric transmission facilities and related
facilities. The right-of-way cannot be used for any other purpose,
and the right-of-way shall terminate upon the termination of the
use for which the right-of-way was acquired.
(f) Compensation
(1) Any right-of-way acquired pursuant to subsection (e) of this
section shall be considered a taking of private property for which
just compensation is due.
(2) Just compensation shall be an amount equal to the fair market
value (including applicable severance damages) of the property
taken on the date of the exercise of eminent domain authority.
(g) State law
Nothing in this section precludes any person from constructing or
modifying any transmission facility in accordance with State law.
(h) Coordination of Federal authorizations for transmission
facilities
(1) In this subsection:
(A) The term "Federal authorization" means any authorization
required under Federal law in order to site a transmission
facility.
(B) The term "Federal authorization" includes such permits,
special use authorizations, certifications, opinions, or other
approvals as may be required under Federal law in order to site a
transmission facility.
(2) The Department of Energy shall act as the lead agency for
purposes of coordinating all applicable Federal authorizations and
related environmental reviews of the facility.
(3) To the maximum extent practicable under applicable Federal
law, the Secretary shall coordinate the Federal authorization and
review process under this subsection with any Indian tribes,
multistate entities, and State agencies that are responsible for
conducting any separate permitting and environmental reviews of the
facility, to ensure timely and efficient review and permit
decisions.
(4)(A) As head of the lead agency, the Secretary, in consultation
with agencies responsible for Federal authorizations and, as
appropriate, with Indian tribes, multistate entities, and State
agencies that are willing to coordinate their own separate
permitting and environmental reviews with the Federal authorization
and environmental reviews, shall establish prompt and binding
intermediate milestones and ultimate deadlines for the review of,
and Federal authorization decisions relating to, the proposed
facility.
(B) The Secretary shall ensure that, once an application has been
submitted with such data as the Secretary considers necessary, all
permit decisions and related environmental reviews under all
applicable Federal laws shall be completed -
(i) within 1 year; or
(ii) if a requirement of another provision of Federal law does
not permit compliance with clause (i), as soon thereafter as is
practicable.
(C) The Secretary shall provide an expeditious pre-application
mechanism for prospective applicants to confer with the agencies
involved to have each such agency determine and communicate to the
prospective applicant not later than 60 days after the prospective
applicant submits a request for such information concerning -
(i) the likelihood of approval for a potential facility; and
(ii) key issues of concern to the agencies and public.
(5)(A) As lead agency head, the Secretary, in consultation with
the affected agencies, shall prepare a single environmental review
document, which shall be used as the basis for all decisions on the
proposed project under Federal law.
(B) The Secretary and the heads of other agencies shall
streamline the review and permitting of transmission within
corridors designated under section 503 of the Federal Land Policy
and Management Act (!1) (43 U.S.C. 1763) by fully taking into
account prior analyses and decisions relating to the corridors.
(C) The document shall include consideration by the relevant
agencies of any applicable criteria or other matters as required
under applicable law.
(6)(A) If any agency has denied a Federal authorization required
for a transmission facility, or has failed to act by the deadline
established by the Secretary pursuant to this section for deciding
whether to issue the authorization, the applicant or any State in
which the facility would be located may file an appeal with the
President, who shall, in consultation with the affected agency,
review the denial or failure to take action on the pending
application.
(B) Based on the overall record and in consultation with the
affected agency, the President may -
(i) issue the necessary authorization with any appropriate
conditions; or
(ii) deny the application.
(C) The President shall issue a decision not later than 90 days
after the date of the filing of the appeal.
(D) In making a decision under this paragraph, the President
shall comply with applicable requirements of Federal law, including
any requirements of -
(i) the National Forest Management Act of 1976 (16 U.S.C. 472a
et seq.);
(ii) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(iii) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.);
(iv) the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.); and
(v) the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.).
(7)(A) Not later than 18 months after August 8, 2005, the
Secretary shall issue any regulations necessary to implement this
subsection.
(B)(i) Not later than 1 year after August 8, 2005, the Secretary
and the heads of all Federal agencies with authority to issue
Federal authorizations shall enter into a memorandum of
understanding to ensure the timely and coordinated review and
permitting of electricity transmission facilities.
(ii) Interested Indian tribes, multistate entities, and State
agencies may enter the memorandum of understanding.
(C) The head of each Federal agency with authority to issue a
Federal authorization shall designate a senior official responsible
for, and dedicate sufficient other staff and resources to ensure,
full implementation of the regulations and memorandum required
under this paragraph.
(8)(A) Each Federal land use authorization for an electricity
transmission facility shall be issued -
(i) for a duration, as determined by the Secretary,
commensurate with the anticipated use of the facility; and
(ii) with appropriate authority to manage the right-of-way for
reliability and environmental protection.
(B) On the expiration of the authorization (including an
authorization issued before August 8, 2005), the authorization
shall be reviewed for renewal taking fully into account reliance on
such electricity infrastructure, recognizing the importance of the
authorization for public health, safety, and economic welfare and
as a legitimate use of Federal land.
(9) In exercising the responsibilities under this section, the
Secretary shall consult regularly with -
(A) the Federal Energy Regulatory Commission;
(B) electric reliability organizations (including related
regional entities) approved by the Commission; and
(C) Transmission Organizations approved by the Commission.
(i) Interstate compacts
(1) The consent of Congress is given for three or more contiguous
States to enter into an interstate compact, subject to approval by
Congress, establishing regional transmission siting agencies to -
(A) facilitate siting of future electric energy transmission
facilities within those States; and
(B) carry out the electric energy transmission siting
responsibilities of those States.
(2) The Secretary may provide technical assistance to regional
transmission siting agencies established under this subsection.
(3) The regional transmission siting agencies shall have the
authority to review, certify, and permit siting of transmission
facilities, including facilities in national interest electric
transmission corridors (other than facilities on property owned by
the United States).
(4) The Commission shall have no authority to issue a permit for
the construction or modification of an electric transmission
facility within a State that is a party to a compact, unless the
members of the compact are in disagreement and the Secretary makes,
after notice and an opportunity for a hearing, the finding
described in subsection (b)(1)(C) of this section.
(j) Relationship to other laws
(1) Except as specifically provided, nothing in this section
affects any requirement of an environmental law of the United
States, including the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(2) Subsection (h)(6) of this section shall not apply to any unit
of the National Park System, the National Wildlife Refuge System,
the National Wild and Scenic Rivers System, the National Trails
System, the National Wilderness Preservation System, or a National
Monument.
(k) ERCOT
This section shall not apply within the area referred to in
section 824k(k)(2)(A) of this title.