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Presidential Permit (8-FD-e)

Information current as of 2018
In the United States, a developer may need a Presidential Permit from the United States Department of Energy’s Office of Electricity to construct, operate, maintain or connect an international electric transmission facility. 10 C.F.R. §§ 205.300 – 205.309, Application for Authorization to Transmit Electric Energy to a Foreign County; 10 C.F.R. §§ 205.320 – 205.329, Application for Presidential Permit; U.S. Department of Energy – Interpretive Guidance on the Requirements of 10 C.F.R. § 205.322.


Any person, firm, co-operative, corporation or other entity who operates an electric power transmission facility crossing the border of the United States, for the transmission of electric energy between the United States and a foreign country must have a Presidential Permit. 10 C.F.R. § 205.320. Operators of cross border transmission facilities should follow the principles of comparable open access and non-discrimination principles contained in the Federal Power Act. U.S. Department of Energy – Notice of Intent to Prepare an Environmental Impact Statement for Champlain Hudson Power Express Presidential Permit (2014).

The United States Department of Energy (DOE) is responsible for implementing Executive Order 10485, as amended by Executive Order 12038, which delegates to DOE authority to issue Presidential Permits for the construction, operation, maintenance, or connection of electric transmission facilities at the U.S. international borders. The authority to administer the International Electricity Regulatory Program through the regulation of electricity exports and the issuance of Presidential Permits has been delegated to the Assistance Secretary for the Office of Electricity Delivery and Energy Reliability by Redelegation Order No. 00-006.05.


Presidential Permit Process

8-FD-e.1 – Presidential Permit Application

A developer must submit a complete Presidential Permit Application (Application) and two conformed copies of the Application and all accompanying documents required under 10 C.F.R. §§ 205.320 – 205.327 to the United States Department of Energy’s Office of Electricity Transmission Permitting and Assistance Division. 10 C.F.R. § 205.324.

A complete Application must include, at minimum, the following:

  • The applicant’s (developer) name, name of all partners;
  • The name, title, post office address, and telephone number of the person to whom correspondence in regard to the Application must be addressed;
  • Whether the applicant (developer) or its transmission lines are owned wholly or in part by a foreign government or directly or indirectly assisted by a foreign government or instrumentality thereof; or
  • Whether the applicant (developer) has any agreement pertaining to such ownership by or assistance from any foreign government or instrumentality;
  • A list of all existing contracts that the applicant (developer) has with any foreign government, or any foreign private concerns, relating to any purchase, sale or delivery of electric energy;
  • A showing, including a signed opinion of counsel, that the construction, connection, operation, or maintenance of the proposed facility is within the corporate power of the applicant (developer), and that the developer has complied with or will comply with all pertinent federal and state laws;
  • A technical description providing the following information:
    • number of circuits, with identification as to whether the circuit is overhead or underground;
    • the operating voltage and frequency; and
    • conductor size, type and number of conductors per phase.
  • A general area map with a scale not greater than 1 inch=40 kilometers (1 inch=25 miles) showing the overall system, and a detailed map at a scale of 1 inch=8 kilometers (1 inch=5 miles) showing the physical location, longitude and latitude of the facility on the international border. The map shall indicate ownership of the facilities at or on each side of the border between the United States and the foreign country. The maps, plans, and description of the facilities must distinguish the facilities or parts thereof already constructed from those to be constructed.

10 C.F.R. § 205.322(a)-(b).

The Application must also include, at minimum, the following environmental information:

  • Information regarding the environmental impacts of each routing alternative, including:
    • a statement of the environmental impacts of the proposed facilities including a list of each flood plain, wetland, critical wildlife habitat, navigable waterway crossing, Indian land, or historic site which may be impacted by the proposed facility with a description of proposed activities;
    • a list of any known Historic Places, as specified in 36 C.F.R. §§ 800.1 – 800.16, Protection of Historic Properties, which may be eligible for the National Park Service - National Register of Historic Places;
    • details regarding the minimum right-of-way width for construction, operation and maintenance of the transmission lines and the rationale for selecting that right-of-way width.
    • a list of threatened or endangered wildlife or plant life which may be located in the proposed alternative.
  • A brief description of all practical alternatives to the proposed facility and a discussion of the general environmental impacts of each alternative;
  • The original of each Application must be signed and verified under oath by an officer of the applicant (developer), having knowledge of the matters.

10 C.F.R. § 205.322(c)-(e).

Bulk Power Supply Facility of 138 kV or More

Applications for the bulk power supply facility which is proposed to be operated at 138 kilovolts or higher must also contain the following bulk power system information:

  • Data regarding the expected power transfer capability, using normal and short time emergency conductor ratings;
  • System power flow plots for the applicant's (developer) service area for heavy summer and light spring load periods, with and without the proposed international interconnection, for the year the line is scheduled to be placed in service and for the fifth year thereafter. The power flow plots submitted can be in the format customarily used by the utility, but a detailed legend must be included with the power flow plots;
  • Data on the line design features for minimizing television and/or radio interference caused by operation of the subject transmission facilities;
  • A description of the relay protection scheme, including equipment and proposed functional devices; and
  • After receipt of the system power flow plots, DOE may require the applicant (developer) to furnish system stability analysis for the applicant's (developer) system.

10 C.F.R. § 205.322(b).

Note: DOE recognizes that the developer (applicant) may not have control over the preparation schedule for certain technical studies required to provide system power flow plot information. Therefore, it is DOE’s policy that an applicant (developer) may supplement the Application with the addition of the technical studies after the initial Application filing. As long as these technical analyses fulfill the requirements of 10 C.F.R. § 205.322(b) and are promptly added to the Application when reasonably possible. U.S. Department of Energy – Interpretive Guidance on the Requirements of 10 C.F.R. § 205.322.

Overhead Transmission Lines

If the proposed interconnection is an overhead line the following additional information must also be provided:

  • The wind and ice loading design parameters;
  • A full description and drawing of a typical supporting structure including strength specifications;
  • Structure spacing with typical ruling and maximum spans;
  • Conductor (phase) spacing; and
  • The designed line to ground and conductor side clearances.

10 C.F.R. § 205.322(a)-(b).

Underground or Underwater Interconnection

If an underground or underwater interconnection is proposed, the following additional information must also be provided:

  • Burial depth;
  • Type of cable and a description of any required supporting equipment, such as insulation medium pressurizing or forced cooling; and
  • Cathodic protection scheme. Technical diagrams which provide clarification of any of the above items should be included.

10 C.F.R. § 205.322(b)(iii).

Fee

The developer must submit a $150 filling fee with the Application. 10 C.F.R. § 205.326.

8-FD-e.2 to 8-FD-e.3 – Review Application Materials for Completeness

DOE reviews the Application for administrative and technical completeness. DOE may request supplemental information in writing and a prompt response from the applicant (developer) is expected. 10 C.F.R. § 205.327.

8-FD-e.4 – Forward Application Materials

DOE forwards the Application materials to the U.S. Secretary of Energy and all affected state public utility regulatory agencies. Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 2.

8-FD-e.5 to 8-FD-e.6 – Review Application Materials to Provide Recommendations

The Secretary of DOE, Secretary of United States Department of Defense, and Secretary of State must review the Application materials and provide recommendations regarding approval to DOE. Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 2.

8-FD-e.7 – Publish Notice of Application

DOE must publish notice of the Application in the Federal Register in accordance with sections 552-553 of the Administrative Procedure Act (5 U.S.C. §§ 500 – 596). The Department of Energy Organization Act, 42 U.S.C § 7191(a)-(b); Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 2 . Notice must include, at minimum, the following:

  • Information on how to obtain a copy of the Application materials;
  • A statement in either the terms or substance of the proposed action or a description of the subjects, and issues involved;
  • A statement of research, analysis, and other available information in support of, the need for, and the probable effect of, the Permit approval;
  • A statement of how to comment on the proposed action; and
  • A reference to the legal authority.

5 U.S.C § 553(b). The Department of Energy Organization Act, 42 U.S.C § 7191(a)-(b); Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 1-2.

DOE must also publish notice of the Application in at least two (2) newspapers of state-wide circulation. Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 1-2.

8-FD-e.8 – Comment on the Application (Optional)

DOE must provide for a minimum of a 30-day public comment period on the Application from the date of publishing notice of the Application in the Federal Register. 5 U.S.C § 553(d). The Department of Energy Organization Act, 42 U.S.C § 7191(a)-(b); Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 1-2.

8-FD-e.9 to 8-FD-e.10 – Is the Project Exempt from the Environmental Requirements?

In certain circumstances a project may be completely or partially exempt from the environmental requirements of 10 C.F.R. § 205.328. DOE may determine that a project is exempt from the environmental requirements of 10 C.F.R. § 205.328 if the project:

  • Is no longer economically feasible, or a substantial financial burden would be imposed by the applicant (developer) bearing all of the costs of the NEPA studies, DOE may waive the requirement set forth in paragraphs (a) and (b) of 10 C.F.R. § 205.328 and perform the necessary environmental review, completely or in part, with its own resources.

If DOE determines the proposed project is partially or completely exempt from the environmental compliance requirements as set forth in paragraphs (a) and (b) of 10 C.F.R. § 205.328 the developer should consult with DOE regarding the exempt review process.

8-FD-e.11 – Review Application Materials for Environmental Determination

DOE must review the Application to make an environmental determination. DOE must determine whether an Environmental Assessment (EA) or Environmental Impact Statement (EIS) for National Environmental Policy Act (NEPA) review is required within 45 days of receipt of a complete Application and the environmental information submitted pursuant to 10 C.F.R. § 205.322(c)-(d). 10 C.F.R. § 205.328.

DOE uses the Application and the environmental information, as well as other sources as a basis for making the environmental determination. 10 C.F.R. § 205.328(a).

If DOE determines an EA is necessary, then it may permit the applicant (developer) to prepare an EA pursuant to 40 C.F.R. § 1506.5(b) for review and adoption by DOE, or the applicant (developer) may enter into a third-party contract as set forth in 10 C.F.R. § 205.328. 10 C.F.R. § 205.328(a)(2).

If DOE determines that an EIS is necessary, the applicant (developer) must enter into a contract with an independent third party, which may be a Government-owned, contractor-operated National Laboratory, or a qualified private entity selected by DOE. The third-party contractor must be qualified to conduct an environmental review and prepare an EIS, as appropriate, under the supervision of DOE, and may not have a financial or other interest in the outcome of the proceedings. The NEPA process must be completed and approved before DOE will issue a Presidential Permit. 10 C.F.R. § 205.328(a)(1).

8-FD-e.12 to 8-FD-e.13 – Environmental Document Preparation Agreement (Optional)

DOE, the applicant (developer), and the independent third party, which may be a Government-owned, contractor-operated National Laboratory or a private entity, must enter into an agreement in which the applicant (developer) engages and pays directly for the services of the qualified third party to prepare the necessary environmental documents for NEPA review. 10 C.F.R. § 205.328(b).

The agreement must outline the responsibilities of each party and its relationship to the other two parties regarding the work to be done or supervised. DOE must approve the information to be developed and supervise the gathering, analysis and presentation of the information. In addition, DOE must have the authority to approve and modify any statement, analysis, and conclusion contained in the environmental documents prepared by the third party. Before commencing preparation of the environmental document, the third party executes a DOE-prepared disclosure document stating that it does not have any conflict of interest, financial or otherwise, in the outcome of either the environmental process or the Presidential Permit Application. 10 C.F.R. § 205.328(b).

For more information on the NEPA environmental review and EA or EIS documentation, see:

Department of Energy - NEPA Review:
9-FD-e

8-FD-e.14 – Conduct Electric Reliability Impact Analysis

DOE must conduct an electric reliability impact analysis that meets the standards of the North American Electric Reliability Corporation (NERC) and regional NERC reliability standards.

8-FD-e.15 to 8-FD-e.17 – Review Application Materials for Approval

The DOE’s Office of Electricity reviews the Application for approval. DOE must find that the proposed action is consistent with the public interest to approve an Application for a Presidential Permit. Executive Order 12038. DOE makes a public interest determination by evaluating the electric reliability impacts, the potential environmental impacts, and any other factors that DOE may also consider relevant to the public interest. Specifically, DOE uses two primary criteria to determine if a proposed project is consistent with the public interest:

Presidential Permits are issued without term limits and are not transferable or assignable. Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 4.

8-FD-e.18 – Petition for Reconsideration (Optional)

Any person aggrieved by an interpretation may submit a Petition for Reconsideration to DOE General Counsel within 30 days of service of the interpretation from which the reconsideration is sought. 10 C.F.R. § 205.85(f)(1). An interpretation means a written statement issued by DOE General Counsel or his delegate or Regional Counsel, in response to a written request, that applies the regulations, rulings or other precedents previously issued, to the particular facts of a prospective or completed act or transaction. 10 C.F.R. § 205.2; Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 3.

There has not been an exhaustion of administrative remedies until a period of 30 days from the date of service of the interpretation has elapsed without receipt by the General Counsel of a Petition for Reconsideration or if a Petition for Reconsideration or, if a Petition for Reconsideration of the interpretation has been filed in a timely manner, until the Petition for Reconsideration has been filed in a timely manner, until that petition has been acted on by the General Counsel. However, a petition to which the General Counsel does not respond within 60 days of the date of receipt thereof, or within such extended time as the General Counsel may prescribe by written notice to the petitioner concerned within that 60-day period, shall be considered denied. 10 C.F.R. § 205.85(f)(1); Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 3.

DOE General Counsel may summarily deny a Petition for Reconsideration if:

  • It is not filed in a timely manner, unless good cause is shown; or
  • It is defective on its face for failure to state, and to present facts and legal argument in support thereof, that the interpretation was erroneous in fact or in law, or that it was arbitrary or capricious.

The General Counsel may deny any Petition for Reconsideration if the petitioner does not establish that—

  • The Petition for Reconsideration was filed by a person aggrieved by an interpretation;
  • The interpretation was erroneous in fact or in law; or
  • The interpretation was arbitrary or capricious. The denial of a Petition for Reconsideration must be a final order of which the petitioner may seek judicial review.

10 C.F.R. § 205.85(f)(1); Regulatory Side-by-Side – Governing Permitting of Cross-Border Electricity Transmission Between the United States and Canada (2015), at Table 4, p. 3.


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