By Sara Orr, Bobbi-Jo Dobush and Francesca Bochner
On November 28, 2016, the Department of Energy’s (DOE) simplified Integrated Interagency Pre-Application (IIP) Process will go into effect.[i]
The IIP is a voluntary, pre-application process intended to streamline and improve the permitting and siting process for qualifying electric transmission projects. In an effort to increase efficiency, the IIP allows DOE to coordinate with applicable federal and non-federal entities to identify issues early in the process and before the developer submits a formal application.
Under the IIP, DOE is responsible for overseeing the IIP Process, coordinating the roles of other Federal entities and maintaining a consolidated administrative record. Developers may participate in two meetings with DOE and other federal and non-federal agencies (local, regional, and tribal stakeholders) to discuss potential issues with a project. While developers must still obtain all other necessary permits, the process is intended to minimize delays by involving all applicable parties from the outset. When the IIP process is complete, developers may submit their formal permit applications to agencies that have already had an opportunity to air concerns and suggest changes.
DOE has previously employed an IIP-type process with two projects. While transmission permitting usually takes multiple years, the IIP framework reduced review times for those two projects to 16–17 months from initiation to the issuance of a Final EIS.
The IIP process is only available to certain, specified types of projects. A “qualifying project” is defined in the regulations as “a non-marine high voltage electric transmission line (230 kV or above) … or other regionally or nationally significant non-marine electric transmission line and its attendant facilities, in which:
(1) All or part of the proposed electric transmission line is used for the transmission of electric energy in interstate commerce for sale at wholesale, and
(2) All or part of the proposed electric transmission line crosses jurisdictions administered by more than one Federal entity or crosses jurisdictions administered by a Federal entity and is considered for Federal financial assistance from a Federal entity.
[Q]ualifying projects do not include those for which a project proponent seeks a construction or modification permit from the FERC for electric transmission facilities in a DOE-designated National Interest Electric Transmission Corridor.”
The IIP process involves five stages, all of which occur prior to an applicant filing a request for authorization with Federal permitting agencies:
- First, a proponent of a qualifying project must submit an initiation request to DOE. The request must include summaries of the proposed project, applicant, potential environmental impacts, and any issues identified through stakeholder outreach. The summary of the project is not to exceed 10 pages, and must list potentially affected Federal and Non-Federal agencies.
- Second, DOE will schedule an Initial Meeting. DOE will identify, notify, and invite entities that could potentially have an authorization or consultation responsibility or other relevant expertise. At the Initial Meeting, the developer will present the project to the other parties, who will identify issues such as data gaps and proposed route modifications. The developer will then use this information to revise the proposal as necessary.
- Third, the developer will submit a request for a final Close-Out Meeting, along with any materials that have been revised based on feedback from the Initial Meeting.
- Fourth, at the final Close-Out Meeting, the developer and the other parties will discuss the updated materials. The federal entities will then provide more detailed feedback on issues of concern, potential mitigation, and process and timing for completion of federal authorizations.
- Finally, after the Close-Out Meeting, DOE will prepare and recommend a Final IIP Resources Report for the participating federal entities to use while conducting their NEPA review.
With this new formalized IIP process, DOE review of proposed electric transmission projects is expected to be significantly more efficient. Latham & Watkins Environment, Land and Resources attorneys are closely monitoring the IIP process, and will continue to report on its implementation and evolution.
[i] Coordination of Federal Authorizations for Electric Transmission Facilities, 81 Fed. Reg.66500 (proposed Sept. 28, 2016) (to be codified at 10 C.F.R. pt. 900). The proposed process was first published in the Federal Register on February 2, 2016. Public comments were accepted until April 4, 2016, and the final rule was published on September 28, 2016.
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