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Regulatory and Permitting Information Desktop Toolkit

Federal FERC Electric Transmission Construction Permit (8-FD-d)

Under the Energy Policy Act of 2005, the United States Department of Energy was given the authority to establish National Interest Electric Transmission Corridors to indicate areas within the transmission system that are susceptible to congestion and in need of further development. To encourage further development of transmission projects, the Energy Policy Act of 2005 added Section 216(b) to the Federal Power Act granting the Federal Energy Regulatory Commission (FERC) the authority to consider an application to issue a permit to construct proposed facilities. FERC is allowed to grant such construction permits if a state withholds approval for more than one year, does not have the authority to site transmission facilities, or cannot consider interstate benefits of a proposed project located in a National Corridor. However, this triggering mechanism has been challenged in the courts. Subsequently, FERC's ability to act after a state's denial of an application has been placed into doubt. Moreover, as of 20014, FERC's backstop authority has never been used.


This flowchart illustrates the procedure for obtaining an Electric Transmission Construction Permit from FERC. This certification process is integrated with the environmental requirements outlined in the National Environmental Policy Act. Compliance with the FERC Electric Transmission Construction Permit requirements and processes will result in a completed environmental review and necessary documents for NEPA purposes.


FERC Electric Transmission Construction Permit Process

8-FD-d.1 – Conduct Initial Consultation

The developer is required to consult with relevant federal, state and interstate resource agencies before filing an application with FERC. These agencies may include: the National Marine Fisheries Service, the United States Fish and Wildlife Service, Bureau of Indian Affairs, the National Park Service, the United States Environmental Protection Agency, and the federal agency administering any United States lands utilized or occupied by the project. 18 CFR 5.1(d). The developer must also discuss the project with FERC. The initial consultation provides an opportunity for FERC to offer suggestions and comments related to the environmental, engineering, and safety features of the proposal.

8-FD-d.2 – Notice of Intent to File an Application

Notice of Intent to File an Application

The developer will be required to file with FERC notice of their intent to file an application for a FERC Electric Transmission Construction Permit under 18 CFR 5.5. The notice must be in the form of a letter to FERC. The letter must contain the following information:

  • The developer’s name and address;
  • The project number, if any;
  • The license expiration date, if any
  • An unequivocal statement of the developer’s intention to file an application for an original license;
  • The type of principal project works licensed, if any, such as dam reservoir, powerhouse, or transmission lines;
  • The location of the project by state, country, and stream, and, when appropriate, by city or nearby city;
  • The installed plant capacity, if any;
  • The names and mailing addresses of:
  1. Every county in which any part of the project is located, and in which any federal facility that is used or to be used by the project is located;
  2. Every city, town, or similar political subdivision implicated by the project;
  3. Every irrigation district, drainage district, or similar special purpose political subdivision implicated by the project;
  4. Every other political subdivision in the general area of the project or proposed project that there is reason to believe would be likely to be interested in, or affected by, the notification; and
  5. Affected Indian Tribes. 18 CFR 5.5(b)(8).


Pre-Application Document

When the developer files notice of intent to seek a license, they must also file a Pre-Application Document as required in 18 CFR 5.6. The document must be distributed to the appropriate federal, state and interstate resource agencies, Indian Tribes, local governments, and members of the public likely to be interested in the proceeding. The developer must exercise due diligence in determining what information exists that is relevant to describing the existing environmental and potential impacts of the project proposal. The Pre-Application document must include a plan and schedule for all pre-application activities that incorporates the time frames for pre-filing consultation, information gathering, and studies.

The Pre-Application Document must contain a detailed description of the proposed project facilities, including:

  • The physical composition, dimensions, and general configuration of any dams, spillways, penstocks, canals, powerhouses, tailraces, and other structures proposed to be included as part of the project or connected directly to it;
  • The normal maximum water surface area and normal maximum water surface elevation, gross storage capacity of any impoundments;
  • The number, type, and minimum and maximum hydraulic capacity and installed (rated) capacity and installed (rated) capacity of any proposed turbines or generators to be included as part of the project;
  • The number, length, voltage, and interconnections of any primary transmission lines proposed to be included as part of the project, including a single-line diagram showing the transfer of electricity from the project to the transmission grid or point of use; and
  • An estimate of the dependable capacity, average annual, and average monthly energy production in kilowatt hours. 18 CFR 5.6(d)(iii).

8-FD-d.3 – Conduct Tribal Consultation

FERC must hold a meeting with each Indian tribe likely to be affected by the potential license application if the Indian tribe agrees to the meeting. The meeting must be held no later than 30 days following the developer filing the notice of intent to file an application. 18 CFR 5.7.

8-FD-d.4 – Request Initiation of Pre-Filing Process

Following the initial consultation, the developer will formally request initiation of the pre-filing process with FERC.

8-FD-d.5 to 8-FD-d.6 – Does OEP Approve Initiation of Pre-Filing Process?

FERC’s Office of Energy Projects (OEP) may approve or deny the request for pre-filing process. If the pre-filing process is not approved, then the developer should amend project specifications or consider other project locations.

8-FD-d.7 to 8-FD-d.8 – Provide Notice of Pre-Filing Process Approval

Following pre-filing process approval, FERC will provide notice of approval and intention to prepare environmental documents under NEPA. FERC is required to allow the public to comment on the approval and intention to conduct environmental review.

8-FD-d.9 – Develop and Implement a Public Participation Plan

The developer is required to develop a plan for public participation in the permitting process during the pre-application phase. The implemented Public Participation Plan identifies specific tools and actions to facilitate stakeholder communication and dissemination of public information to those who are interested in the proposed transmission project.

8-FD-d.10 to 8-FD-d.11 – Proposed Study Plan

The developer is required to file a proposed study plan with FERC within 45 days following the deadline for filing comments on the Pre-Application Document. The proposed study plan must include with respect to each proposed study:

  • A detailed description of the study and the methodology to be used;
  • A schedule for conducting the study;
  • Provisions for the periodic progress reports, including the manner and extent to which information will be shared; and sufficient time for technical review of the analysis and results; and
  • If the developer does not adopt a requested study, an explanation of why the request was not adopted. 18 CFR 5.11(b).

Comments on the proposed study plan must be filed within 90 days after the plan is filed with FERC. 18 CFR 5.12.

8-FD-d.12 to 8-FD-d.13 – Revised Study Plan

The developer must file a Revised Study Plan with FERC within 30 days following the deadline for filing comments on the proposed study plan. The Revised Study Plan must include the comments on the Proposed Study Plan and a description of efforts made to resolve differences over study requests. 18 CFR 5.13(a). The public may file comments on the Revised Study Plan for 15 days following its filing. 18 CFR 5.13(b).

8-FD-d.14 to 8-FD-d.15 – Study Plan Determination

FERC will issue a Study Plan Determination within 30 days following the filing of the Revised Study Plan. 18 CFR 5.13(c).

8-FD-d.16 – Scoping Document 1

At the same time that FERC issues the Notice of the Scoping Document, they will also issue Scoping Document 1. Scoping Document 1 will include the following:

  • An introductory section describing the purpose of the scoping document, the date and time of the scoping meeting, procedures for submitting written comments, and a request for information or study requests from state and federal resource agencies, Indian tribes, non-governmental organizations, and individuals;
  • Identification of the proposed action, including a description of the project’s location, facilities, and operation, and any proposed protection and enhancement measures, and other alternatives to the proposed action, including alternatives considered but eliminated from further study, and the no action alternative;
  • Identification of resource issues to be analyzed in the environmental document, including those that would be cumulatively affected along with a description of the geographic and temporal scope of the cumulatively affected resources;
  • A list of qualifying federal and state comprehensive waterway plans;
  • A list of qualifying tribal comprehensive waterway plans;
  • A process plan and schedule and a draft outline of the environmental document; and
  • A list of recipients. 18 CFR 5.8(c).

8-FD-d.17 – Issue Notice of Commencement of Proceeding and Scoping Document

FERC will issue notice of commencement of proceeding and scoping document within 60 days of their receipt of notification of intent to file an application 18 CFR 5.8(a). The developer must provide public notice by:

  • Publishing notice in the Federal Register;
  • Publishing notice in a daily or weekly newspaper published in the county or counties in which the project or any part thereof or the lands affected thereby are situated, and, as appropriate, tribal newspapers; and
  • Notifying appropriate federal, state, and interstate resource agencies, state water quality and coastal zone management plan consistency certification agencies, Indian tribes, and non-governmental organizations, by electronic means if practical, otherwise by mail. 18 CFR 5.8(e).

8-FD-d.18 – Comment on Scoping Document 1

The public may comment on Scoping Document 1 for 60 days following the notice required under 18 CFR 5.8(a). Any comments provided to FERC must include any information gathering and study requests, and should include information and studies needed for consultation under section 7 of the Endangered Species Act and water quality certification under Section 401 of the Clean Water Act.

8-FD-d.19 to 8-FD-d.20 – Hold Public Scoping Meeting

FERC will hold a public scoping meeting for the project and conduct a site visit. The purpose of the scoping meeting and site visit is to:

  • Initiate issues scoping pursuant to NEPA;
  • Review and discuss existing conditions and resource management objectives;
  • Review and discuss existing information and make preliminary identification of information and study needs;
  • Review, discuss, and finalize the process plan and schedule for pre-filing activity that incorporates the time periods provided for in this part and, to the extent reasonably possible, maximizes coordination of federal, state, and tribal permitting and certification processes, including consultation under the Endangered Species Act and water quality certification or waiver thereof under the Clean Water Act; and
  • Discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document pursuant to the National Environmental Policy Act. 18 CFR 5.8(d).

8-FD-d.21 – Scoping Document 2

FERC must, within 45 days following the deadline for filing comments on Scoping Document 1, issue a Scoping Document 2 if the project so requires. 18 CFR 5.10. Scoping Document 2 will incorporate any relevant comments received for Scoping Document 1.

8-FD-d.22 – Preliminary Licensing Proposal

The developer must file a Preliminary Licensing Proposal with FERC no less than 150 days before when the application must be filed. 18 CFR 5.16(a). The Preliminary Licensing Proposal must include the following:

  • A clear description of the proposed project facilities, including project lands and waters;
  • Clear description of proposed project operation and maintenance plans, to include measures for protection, mitigation, and enhancement measures with respect to each resource affected by the project proposal; and
  • The developer’s draft environmental analysis by resource area of the continuing and incremental impacts, if any, of its preliminary licensing proposal, including the results of it studies conducted under the approved study plan. 18 CFR 5.16(b).

8-FD-d.23 – Application for FERC Construction Permit

The developer files an application with FERC for a construction permit. Each application must:

  • Identify every person, citizen, association of citizens, domestic corporation, municipality, or state that has or intends to obtain and will maintain any proprietary right necessary to construct, operate, or maintain the project;
  • Identify (including names and mailing addresses):
  1. Every county in which any part of the project, and any federal facilities that would be used by the project would be located;
  2. Every city, town, or similar local political subdivision where the project will be located or that has a population of 5,000 or more people and is located within 15 miles of the project dam;
  3. Every other political subdivision in the general area of the project that there is reason to believe would likely be interested in, or affected by, the application; and
  4. All Indian tribes that may be affected by the project. 18 CFR 5.18(a)(2).
  • State that the developer has made a good faith effort to give notification by certified mail of the filing of the application to any interested property owners and other federal, state, municipal or other local government agencies that would likely be interested in the action. 18 CFR 5.18(a).

8-FD-d.24 – Provide Notice of Application Filing

The developer is required to provide public notice of its filing of an application twice, no later than 14 days after the filing date in a daily or weekly newspaper of general circulation in each county in which the project is located. The developer is then required to provide FERC with proof of publication. 18 CFR 5.17(d)(1).

8-FD-d.25 to 8-FD-d.27 – Review Application Materials for Completeness

If the application is incomplete, FERC will notify the developer of the deficiency within 30 days of filing the application. The developer will have an opportunity to submit any necessary information to FERC. 18 CFR 5.21.

8-FD-d.28 – Provide Notice of Completed Application

FERC provides notice that the application is complete and all issues have been resolved, and that the application is ready for environmental analysis. 18 CFR 5.22(a).

8-FD-d.29 – Comment on Completed Application and Readiness for Environmental Analysis

The public is permitted to submit comments on the acceptance of the application, and start of the environmental analysis process. Comments must be submitted no later than 60 days after the notice of completed application is given. 18 CFR 5.23(a).

8-FD-d.30 – Is a Draft Environmental Document Necessary?

FERC determines whether a draft Environmental Assessment is necessary for the project.

8-FD-d.31 – Draft Environmental Impact Statement or Draft Environmental Assessment

If FERC determines that the license application will be processed with an Environmental Impact Statement, or a draft and final Environmental Assessment, a draft will be issued no later than 180 days from the date responses are due to the notice of completed application. 18 CFR 5.25(a). Each draft environmental document will include draft license articles and a preliminary determination of the consistency of any recommendations from each fish and wildlife agency made pursuant to Section 10(j) of the Federal Power Act. 18 CFR 5.25(b).

8-FD-d.32 – Provide Notice of Draft Environmental Document

FERC provides public notice that a draft environmental document is available for review and comment.

8-FD-d.33 – Comment on Draft Environmental Document

The public may submit comments on the draft environmental document no later than 30 or 60 days after the document is issued. 18 CFR 5.25(c). FERC has discretion to determine the length of the public comment period. FERC will outline the exact time frame for comments in the public notice.

8-FD-d.34 – Final Environmental Impact Statement or Final Environmental Assessment

FERC then issues a final environmental document.

8-FD-d.35 – Provide Notice of Final Environmental Document

FERC provides public notice that a final environmental document is available for review and comment.

8-FD-d.36 – Comment on Final Environmental Document

The public may submit comments on the final environmental document no later than 30 or 60 days after the document is issued. 18 CFR 5.25(c). FERC has discretion to determine the length of the public comment period. FERC will outline the exact time frame for comments in the public notice.

8-FD-d.37 – Environmental Assessment

If FERC determines that a draft environmental document is not necessary, then they will issue an Environmental Assessment no later than 120 days from the date responses are due to the notice of completed application. 18 CFR 5.24(a). The Environmental Assessment will include draft license articles and a preliminary determination of the consistency of any recommendations from each fish and wildlife agency made pursuant to Section 10(j) of the Federal Power Act.

8-FD-d.38 – Provide Notice of Availability of Environmental Assessment

FERC provides public notice that the Environmental Assessment is available for review and comment.

8-FD-d.39 – Comment on Environmental Assessment

The public may submit comments on the Environmental Assessment no later than 30 or 45 days following issuance of the Environmental Assessment. 18 CFR 5.24(c). FERC has discretion to determine the length of the public comment period. FERC will outline the exact time frame for comments in the public notice.

8-FD-d.40 – FERC Electric Transmission Construction Permit

FERC issues an Electric Transmission Construction Permit following completion of the environmental analysis.

In order to issue a permit under Section 216 of the Federal Power Act, FERC must find that the proposed project:

  • Is eligible for a construction permit issued by FERC;
  • Is located in a National Corridor designated by the Department of Energy;
  • Will be used in interstate commerce;
  • Is in the public interest;
  • Will significantly reduce transmission congestion and protect and benefit consumers;
  • Is consistent with sound national energy policy and will enhance energy independence; and
  • Will maximize the use of existing towers or structures, to the extent reasonably and economically possible.




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