Nevada Utility Environmental Protection Act Permitting (9-NV-a)
Utility Environmental Protection Act Permitting Process
9-NV-a.1 to 9-NV-a.2 – Is the Project a “Utility Facility” as Defined in 704.860?
UEPA permits are only required for utility facilities. If the developer is not constructing a utility facility, as defined in NRS 704.860, no UEPA permit is required and the developer may proceed with the project. In part a “utility facility” is:
- An electric generating plant and its associated facilities, except electric generating plants and their associated facilities which use or will use renewable energy and which have a nameplate capacity of 70 MW or less; or
- Electric transmission lines and substations that are designed to operate at 200 kilovolts or more, are not required to be placed underground by local ordinance and are constructed outside of any incorporated city.
As such, solar and geothermal facilities under 70 MW are exempt from UEPA.
See NRS 704.860.
9-NV-a.3 – Hold Pre-Filing Meeting
The PUCN’s UEPA Guide for Applicants – Electric Facilities recommends that developers schedule a pre-filing meeting with PUCN staff.
9-NV-a.4 – Utility Environmental Protection Act (UEPA) Application
The UEPA Application must be submitted to the PUCN and must contain the following:
- A description of the location and of the utility facility to be built thereon;
- A summary of any studies which have been made of the environmental impact of the facility; and
- A description of any reasonable alternate location or locations for the proposed facility, a description of the comparative merits or detriments of each location submitted, and a statement of the reasons why the primary proposed location is best suited for the facility.
See NRS 704.870. In addition, a copy of the environmental studies must be filed with the PUCN and be available for public inspection. See NRS 704.870(1). If the application is for a utility facility for which analysis under the National Environmental Policy Act of 1969 (NEPA) is required and has not been conducted, the following information must be included in the application:
- A description of the location of the proposed utility facility as required by subsection 1 of NRS 704.870, including:
- A general description of the location of the proposed utility facility, including a regional map that identifies the location of the proposed utility facility;
- A legal description of the site of the proposed utility facility, with the exception of electric lines… for which only a detailed description of the site is required; and
- Appropriately scaled site plan drawings of the proposed utility facility, vicinity maps and routing maps;
- A description of the proposed utility facility, including:
- The size and nature of the proposed utility facility;
- The natural resources that will be used during the construction and operation of the proposed utility facility;
- Layout diagrams of the proposed utility facility and its associated equipment;
- Scaled diagrams of the structures at the proposed utility facility; and
- A statement concerning whether the proposed utility facility is an electric generating plant or the associated facilities of an electric generating plant that uses renewable energy as its primary source of energy to generate electricity;
- A copy and summary of any studies which have been made of the environmental impact of the proposed utility facility as required by subsection 1 of NRS 704.870;
- A description of any reasonable alternate locations for the proposed utility facility, a description of the comparative merits or detriments of each location submitted, and a statement of the reasons why the location is best suited for the proposed utility facility, as required by subsection 1 of NRS 704.870;
- A copy of the public notice of the application and proof of the publication of the public notice, as required by subsection 4 of NRS 704.870;
- Proof that a copy of the application has been submitted to the Nevada State Clearinghouse within the State Department of Conservation and Natural Resources;
- An explanation of the nature of the probable effect on the environment, including:
- A reference to any studies described, if applicable; and
- An environmental statement that includes:
- The name, qualifications, professions and contact information of each person with primary responsibility for the preparation of the environmental statement;
- The name, qualifications, professions and contact information of each person who has provided comments or input in the preparation of the environmental statement;
- A bibliography of materials used in the preparation of the environmental statement; and
- A description of:
- The environmental characteristics of the project area existing at the time the application is filed with the Commission;
- The environmental impacts that the construction and operation of the proposed utility facility will have on the project area before mitigation; and
- The environmental impacts that the construction and operation of the proposed utility facility will have on the project area after mitigation.
- Unless, pursuant to paragraph (b) of subsection 1 of NRS 704.890, the proposed utility facility is exempt from the requirement that the Commission find and determine the extent to which the proposed utility facility is needed to ensure reliable utility service to customers in this State, an explanation of the extent to which the proposed utility facility is needed to ensure reliable utility service to customers in this State, including:
- If the proposed utility facility was approved in a resource plan or an amendment to a resource plan, a reference to the previous approval by the Commission; or
- If the proposed utility facility was not approved in a resource plan or an amendment to a resource plan, a description of the extent to which the proposed utility facility will:
- Provide utility service to customers in this State;
- Enhance the reliability of utility service in this State; and
- Achieve interstate benefits by the proposed construction or modification of transmission facilities in this State, if applicable;
- An explanation of how the need for the proposed utility facility balances any adverse effects on the environment;
- An explanation of how the proposed utility facility represents the minimum adverse effect on the environment, including:
- The state of available technology;
- The nature of various alternatives; and
- The economics of various alternatives;
- An explanation of how the location of the proposed utility facility conforms to applicable state and local laws and regulations, including a list of all permits, licenses and approvals required by federal, state and local statutes, regulations and ordinances. The explanation must include a list that indicates:
- All permits, licenses and approvals the [developer] has obtained, including copies thereof; and
- All permits, licenses and approvals the [developer] is in the process of obtaining to commence construction of the proposed utility facility. The [developer] must provide an estimated timeline for obtaining these permits, licenses and approvals.
- An explanation of how the proposed utility facility will serve the public interest, including;
- The economic benefits that the proposed utility facility will bring to the [developer] and this State;
- The nature of the probable effect on the environment in this State if the proposed utility facility is constructed;
- The nature of the probable effect on the public health, safety and welfare of the residents of this State if the proposed utility facility is constructed; and
- The interstate benefits expected to be achieved by the proposed electric transmission facility in this State, if applicable.
See NAC 703.423.
9-NV-a.5 to 9-NV-9 - Will a Federal Agency Conduct an Environmental Study?
If a federal agency is required to perform a NEPA analysis of the developer’s proposed project, the developer must file a notice with the PUCN and with each other permitting agency. The notice must be filed no later than the date on which the developer files for approval from the federal agency to construct the utility facility. The developer must then file an application with the PUCN and each other permitting agency within 30 days of the issuance of the final environmental assessment/environmental impact statement, but not the record of decision or similar document. The application must include the information listed in 9-NV-a.4. See NRS 704.870(2).
9-NV-a.10 – Facilitate Coordination Between Federal and State Stakeholders
The application is forwarded to the Nevada State Clearinghouse for vetting with all state and federal stakeholders. The purpose of the Clearinghouse is to act as a single point of contact for all NEPA proposals in Nevada. The single point of contact is intended to streamline the consultation process. PUCN is required to accept and incorporate findings and conclusions of environmental review that have already been conducted. NRS 704.877(1).
9-NV-a.11 - Review Application
Both the PUCN and Nevada Department of Conservation and Natural Resources review the application for completeness as well as evaluate the application for potential environmental impacts the project may cause. The Nevada Department of Conservation and Natural Resources may also participate in any hearing held on the matter by the PUCN. However, only the PUCN has the power to approve or deny the application. See NRS 704.875.
9-NV-a.12 - Post Application with Clerk and Provide Public Notice
The NPUC is responsible for posting the application with every affected local government. Notice is posted with the appropriate county or municipal clerks.
9-NV-a.13 - Has a Protest to the Granting of the Permit Been Filed?
A hearing on the UEPA permit is generally required if a protest is filed within the time period set by the notice. If no protests ifs filed the PUCN may dispense with the hearing requirement. If a hearing is held, it must comply with the rules set for in NAC 703. See NRS 704.880.
9-NV-a.14 –Appoint Presiding Officer
The Chair of the PUCN may appoint a presiding officer or hearing officer to preside over and conduct any proceeding involving an application, petition or complaint before the PUCN. NAC 703.486.
9-NV-a.15 to 9-NV-a.16 – Provide Notice to Parties; Comment on Application
A 30-day minimum public notice is required where the PUC will provide any interested person the opportunity to comment on the proposed project. The PUCN must also provide notice regarding the pendency of the application to the parties. See NAC 703.492. Parties include applicants, complainants, petitioners, respondents or interveners. NAC 703.490. Non-parties who wish to participate in the proceedings must file with the PUCN a notice of intent to participate as a commenter. NAC 703.491(2). NAC 703.491(5) limits the scope of a commentators participation in the hearing. Parties and non-party commenters may file written comments with the PUCN before he hearing begins. See NAC 703.491(4).
9-NV-a.17 – Hold Prehearing Conference
Upon the motion of a party of record or the presiding officer's own motion a prehearing conference may be held. The prehearing conference is intended to accomplish the following purposes according to NAC 703.655:
- Formulate or simplify the issues involved in the proceeding;
- Obtain admission of fact or any stipulation of the parties;
- Arrange for the exchange of proposed exhibits or prepared expert testimony;
- Identify the witnesses and the subject matter of their expected testimony and limit the number of witnesses, if necessary;
- Rule on any pending procedural motions, motions for discovery or motions for protective orders;
- Determine the necessary and appropriate content of the notice of hearing;
- Establish a schedule for the submission of a statement of issues and positions by all parties to a hearing;
- Establish any other procedure which may expedite the orderly conduct and disposition of the proceedings.
Notice of the hearing must be provided to all parties of record. Failure of any party to attend the prehearing conference will act as waiver of any objection to all agreements reached or rulings made at the conference. The prehearing conference must be made a part of the record, control the course of subsequent proceedings (unless they are modified by the presiding officer), and is binding on all current and subsequent parties. See NAC 703.655(2)-(3).
9-NV-a.18 – Conduct Discovery
If a protest is filed, there may be a need for discovery between the parties. Discovery under a PUCN proceeding is governed by NAC 703.680. Discovery is generally conducted through written data requests and oral depositions that must be reasonably calculated to obtain information relevant to the application. The presiding officer may, after a motion and opportunity for response, limit the number of data requests no later than 45 days after opening the docket. NAC 703.680(2).
Any party may object in whole or in part to a discovery request within 5 business days after receiving the request. The objection must be made in writing to the presiding officer, must state specific grounds for the objection and must be served on the requesting party within 10 days of receipt of the original request. NAC 703.680(6-7). Finally, discovery must be completed at least 15 days before the date set for the hearing unless the presiding officer has set a different date for close of discovery. See NAC 703.680(16).
9-NV-a.19 to 9-NV-a.20 – Hold Public Hearing
As stated above, the PUCN must hold a hearing on a UEPA application if a protest is filed during the notice and comment period. NRS 704.880. The hearing will be conducted by the presiding officer appointed by the PUCN and must follow the procedures described in NAC 703. NRS 704.880.
All testimony (expert or otherwise) presented at the hearing must be sworn testimony, except for matters which the presiding officer takes official notice of or matters which were entered by stipulation. See NAC 703.685(1). Witnesses may be cross examined by other parties to the hearing. See NAC 703.685(3). At the discretion of the presiding officer, the parties may also make opening statements at the hearing. See NAC 703.690(2).
The Presiding Officer will have the following authorities throughout the proceeding:
- Call a hearing to order and take appearances of the parties present;
- Hold appropriate conferences before or during the hearing;
- Receive and rule on the admissibility of evidence;
- Rule on the admissibility of amendments to pleadings;
- Act on any pending motions or petitions which do not involve a final determination of the proceeding;
- Make proposed opinions, findings and conclusions of law;
- Issue appropriate interim orders;
- Recess the hearing as required;
- Rule on all procedural matters; and
- Set reasonable time limits for the presentation of oral testimony.
See NAC 703.690.
9-NV-a.21 to 9-NV-a.22 – Is Additional Evidence Required by Presiding Officer?
At the hearing, the presiding officer may order presentation of further evidence on any issue. After the hearing, but before entry of a final decision and order, the PUCN or the presiding officer may issue an order requesting submission of additional exhibits. This order for additional submissions must specifically delineate which exhibits must be submitted and the subject matter to be addressed by the request. All parties of record will be served with the exhibits requested by this mechanism. NAC 703.725. All rulings and orders for additional evidence regarding admissibility of evidence are subject to review by the full Commission.
9-NV-a.23 to 9-NV-a.24 – Proposed Opinion, Findings and Conclusions of Law
The presiding officer must "file with the Commission a proposed order that sets forth [his or her] findings and conclusions… and the reasons and bases for those findings and conclusions," unless the proceeding is a noncontested case or a contested case that is settled in its entirety by stipulation. NAC 703.486(3). The proposed order must be served on each party of record in the proceeding. Parties receiving the proposed order may file comments that address the order in accordance with NAC 703.785. Exceptions to the proposed opinion may be filed within 10 days after the date of service of the proposed order, unless a different time is specified by the PUCN in the proposed order. See NAC 703.785(3)
Unless otherwise ordered, the matter of each application is submitted for a decision of the PUCN at the close of the hearing. NAC 703.770.
9-NV-a.25 – Is a Proposed Order Required or Requested by Any Party of Record?
If the proceeding falls under one of the exceptions listed above and a proposed order is not required from a hearing officer, the PUCN may still issue a proposed order. If it does so, it must notify all parties of record. See NAC 703.785(1). In addition, any party of record may file a petition requesting that a proposed order be issued by the PUCN. NAC 703.785(2). Any petition for a proposed order must set forth reasons for issuing the proposed order and state that it will promote the administration of justice and not cause unreasonable delay. Any adverse party is allowed the opportunity to object to the petition for a proposed order within 5 days after service of the petition.
9-NV-a.26 to 9-NV-a.27 – Proposed Order
If requested or required, or if the PUCN deems it necessary, the PUCN will issue a Proposed Order. The Proposed Order will be served on all parties of record and open for public review. See NAC 703.785.
9-NV-a.28 to 9-NV-a.29 – Does Any Party of Record File an Exception to the Proposed Order?
Any party of record may file an exception to the proposed order within 10 days of the receipt of notice, unless a different time is specified by the Commission in the proposed order. The exception must be in writing and include a clear statement regarding the reason for the exception, the grounds supporting the exception, suggested correction of the matter, and a copy of the exception to be served on all parties of record. The PUCN may also hold a public hearing on the exception filing if the public interest would be served by such a hearing. See NAC 703.785(3)-(4). Parties may file an answer to the exception within five days of its receipt. See NAC 703.785(5). The PUCN will consider all exceptions, answers and briefs contained in the record of the proceeding before issuing a final order. See NAC 703.785(6).
9-NV-a.30 to 9-NV-a.31 – Is the UEPA Permit Approved by the PUCN?
Within 150 days after the developer files the UEPA application for a project that does not require NEPA review or 120 days after the developer files the UEPA application for a project that does require NEPA review, the PUCN and other permitting agencies with which an application was filed on or before the date of the UEPA application must grant or deny the approval of the application and other permits or licenses. NRS 704.8905(1). The PUCN makes the ultimate decision with regards to UEPA permits, despite the fact this is the environmental process. The PUCN may not grant the permit unless it finds and determines:
- The nature of the probable effect on the environment;
- If the utility facility emits greenhouse gases and does not use renewable energy as its primary source of energy to generate electricity, the extent to which the facility is needed to ensure reliable utility service to customers in this State;
- That the need for the facility balances any adverse effect on the environment;
- That the facility represents the minimum adverse effect on the environment, considering the state of available technology and the nature and economics of the various alternatives;
- That the location of the facility as proposed conforms to applicable state and local laws and regulations issued thereunder and the applicant has obtained, or is in the process of obtaining, all other permits, licenses and approvals required by federal, state and local statutes, regulations and ordinances; and
- That the facility will serve the public interest.
See NRS 704.890.
These findings are made with the input and assistance of the State Department of Conservation and Natural Resources. The PUCN may condition the issuance of the permit on a modification to the location of the facility or the procurement of all required federal, state or local permits and approvals. See NRS 704.890(2). The PUCN may grant or deny the application as filed, or grant the application “upon such terms, conditions or modifications of the construction, operation or maintenance of the utility facility as the Commission or other permitting entity deems appropriate.” See NRS 704.8905(2). The PUCN must serve a copy of its order and any accompanying opinion on each party of record. See NRS 704.8905(3).
9-NV-a.32 to 9-NV-a.35 – Is a Petition for Rehearing Filed?; Modified Final Order or Reaffirmed Final Order; Appeal to District Court
Any party of record may file a petition for rehearing to the PUCN. The petition must be filed with the PUC and served on all parties of record within 15 days after the issuance of the order. A petition for rehearing must include the following:
- Allegations that an order is in error because of an incomplete or inaccurate record;
- The nature and purpose of any additional evidence to be introduced; and
- A showing that evidence is not merely cumulative and that it could not have been introduced at the hearing
See NAC 703.801(2).
Parties may file an answer within 10 days of the filing of the petition. The PUCN must then decide whether to grant or deny the petition within 40 days. If the PUC grants a petition for rehearing, it conducts a hearing within 20 days to allow the parties to present additional evidence. The PUCN then issues a modified final order or affirms the original order. If no action is taken by the PUCN, the petition is deemed to be denied. A modified final order is the final decision of the PUCN . See NAC 703.801(3)-(9). Aggrieved parties may appeal the PUCN’s decision on rehearing to the district court within 30 days of the issuance of the PUCN’s final order on rehearing. The PUCN must send the transcript of the proceedings, a copy of its decision and a copy of its opinion to the district court upon receipt of the aggrieved party’s complaint. These documents constitute the record on judicial review. The scope of judicial review is limited to whether the PUCN’s order and opinion are:
- In conformity with the Constitution and the laws of the State of Nevada and of the United States;
- Supported by substantial evidence in the record;
- Made in accordance with the procedures set forth in NRS 704.820 to 704.900, inclusive, or established order, rule or regulation of the Commission; and
- Arbitrary, capricious or an abuse of discretion.
See NRS 704.895.
If there is a violation of any of the factors listed above, the district court may require the PUCN to reconsider its decision.
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