USA Law and Practice Contributed by: David P. Flynn, Lindsey E. Haubenreich, Thomas F. Puchner and Dennis W. Elsenbeck, Phillips Lytle LLP
reduce impacts that are of concern to the regu- lators. 3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities A CPCN issued by a state public utility com- mission may include eminent domain rights for the facility developer under terms and conditions specific to that state and its relevant laws. To act on their eminent domain authority, the devel- oper must provide the landowner with just com- pensation based on the fair market value of the property being condemned, on the date that the eminent domain is exercised. 3.5 Decommissioning a Generation Facility Decommissioning is often included as part of the terms and conditions of approval for generation facilities. The specifics of such requirements and how they are implemented are highly dependent on the local, state or federal authorities involved, and their unique practices. Permitting authorities may require formal decommissioning plans and financial security. In some cases, decommissioning requirements are applied based on discretionary approval conditions, while in other cases, specific legal requirements for decommissioning may be derived from applicable laws or regulations. 4. Transmission Lines and Associated Facilities 4.1 Constructing and Operating Transmission Lines and Associated Facilities The US transmission system is generally com- prised of facilities that are privately, publicly, fed-
erally or co-operatively owned. While individual states may have primary authority over environ- mental reviews, siting and construction of elec- trical transmission lines and their associated facilities (including storage), federal authorities are involved when a project is subject to federal jurisdiction, located on federal lands, spans mul- tiple states or lies in certain designated areas. 4.2 Obtaining Approvals to Construct and Operate Transmission Lines and Associated Facilities Both state and federal certifications and approv- als can generally be required to construct and operate electrical transmission facilities. Some states may have a pre-filing consultation requirement designed to co-ordinate the review process across multiple agencies. Ultimately, the applicant will generally need to obtain a CPCN, or an equivalent certificate, from the state utility commission. As part of the CPCN proceeding, or as a separate process, an applicant may be subject to review by a multitude of state agen- cies and authorities, including the relevant coun- ties and municipalities, drainage districts, state natural resource and environmental agencies, transportation authorities and cultural heritage preservation offices. In addition to state permits and authorisations, an applicant may need to obtain approval from several federal agencies, including: • the US Army Corps of Engineers; • the Federal Aviation Administration; • the US Fish and Wildlife Service; • the Department of Agriculture; • the Department of Commerce; • the Department of Defense; • the DOE; • the Environmental Protection Agency (EPA);
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