---------------------------------------------------------------------------

    \977\ APS Initial Comments at 11-12; Avangrid Initial Comments
at 32-33; Clean Energy Associations Initial Comments at 25; Fervo
Energy Initial Comments at 4; Fervo Energy Reply Comments at 4;
LADWP Initial Comments at 4; Pattern Energy Initial Comments at 18;
Pine Gate Initial Comments at 21-22; Tri-State Initial Comments at
12, 34; Vistra Initial Comments at 5.
---------------------------------------------------------------------------

c. Commission Determination
    486. We decline to adopt the NOPR proposal to revise the pro forma
LGIP and pro forma LGIA to implement shared network upgrades between
interconnection customers in an earlier cluster and interconnection
customers in a subsequent cluster. We find that the reforms adopted in
this final rule that require transmission providers to allocate network
upgrade costs to interconnection customers within the same cluster
using a proportional impact method, as discussed above, will provide
interconnection customers with more cost certainty during the
interconnection process and will allow for sharing of network upgrade
costs between interconnection customers that benefit from those network
upgrades within the same cluster.
    487. The record demonstrates the complexity of the NOPR proposal
and potentially significant administrative burdens associated with
implementing it for at least some transmission providers, especially
under the Commission's interconnection pricing policy. We agree with
some commenters that adopting the proposal would not provide cost
certainty to interconnection customers in earlier clusters at the point
that they have to proceed in the interconnection process because they
would lack certainty about potential reimbursement for network upgrades
from interconnection customers in subsequent clusters.\978\ Thus, the
NOPR proposal is unlikely to reduce barriers to generation development
due to the absence of network upgrade cost sharing provisions. Further,
the proposal may introduce burdens for lower-queued interconnection
customers that could be faced with reimbursing a higher-queued
interconnection customer for a new shared network upgrade cost late in
the interconnection process. For these reasons, we decline to adopt
this NOPR proposal.\979\
---------------------------------------------------------------------------

    \978\ AEE Initial Comments at 16; Clean Energy Associations
Initial Comments at 25; Dominion Initial Comments at 23-24; EEI
Initial Comments at 22; Enel Initial Comments at 30; Indicated PJM
TOs Initial Comments at 22-23; Indicated PJM TOs Reply Comments at
40; NARUC Initial Comments at 9; NextEra Initial Comments at 18;
Pine Gate Initial Comments at 22; PJM Initial Comments at 38; U.S.
Chamber of Commerce Initial Comments at 8; Xcel Initial Comments at
48.
    \979\ We note that MISO, ISO-NE, and NYISO, which have
independent entity variations to the Commission's crediting policy,
have similar shared network upgrade mechanisms to the NOPR proposal.
See Midwest Indep. Transmission Sys. Operator, Inc., 133 FERC ]
61,221, at P 336 (2010); ISO New England Inc., 161 FERC ] 61,123, at
PP 92-96 (2017); N.Y. Indep. Sys. Operator, Inc., 124 FERC ] 61,238,
at P 34 (2008).
---------------------------------------------------------------------------

    488. We find that the final rule's reforms to conduct cluster
studies and to allocate the costs of any assigned network upgrades to
the cluster's interconnection customers on a proportional basis address
the ``first mover/free rider'' issue.\980\ Under this final rule, a
transmission provider must study interconnection customers in an
earlier cluster study based on the transmission system at that time,
and those interconnection customers will be assigned network upgrades
that would not be needed but for their interconnection to the
transmission system; then, the transmission provider will study
interconnection customers in a subsequent cluster study based on the
transmission system at that point in time, and those interconnection
customers will be assigned any necessary network upgrades that would
not be needed but for their interconnection to the transmission system.
Further, we note that under the Commission's interconnection pricing
policy, interconnection customers receive reimbursement for network
upgrade costs, which helps to mitigate any ``first mover/free rider''
concerns because interconnection customers are reimbursed through
transmission credits. In addition, we find that the aforementioned
reforms to conduct cluster studies and use a proportional impact method
to allocate the costs of network upgrades within a cluster will also
address ``first mover/free rider'' concerns in regions with independent
entity variations to the interconnection pricing policy.
---------------------------------------------------------------------------

    \980\ See ELCON Initial Comments at 9; Longroad Energy Reply
Comments at 13; Pattern Energy Initial Comments at 18; SEIA Initial
Comments at 12; Shell Initial Comments at 27; Vistra Initial
Comments at 4; Xcel Initial Comments at 27.
---------------------------------------------------------------------------

    489. Because we decline to adopt this proposal, we do not respond
to the requests for clarification or the requests for modifications to
the NOPR proposal that would not address the reasons provided above for
declining to adopt the NOPR proposal as a general matter.
6. Increased Financial Commitments and Readiness Requirements
    490. In the NOPR, the Commission stated that the pro forma LGIP
allows an interconnection customer to proceed through the generator
interconnection process without having shown evidence to the
transmission provider of meaningful progress toward achieving
commercial viability.\981\ The Commission stated its concern that,
without requiring this type of evidence, interconnection customers will
continue to submit multiple speculative interconnection requests and
later withdraw those requests, triggering rounds of restudies. The
Commission therefore proposed a set of reforms to adopt more stringent
financial commitments and readiness requirements for interconnection
customers to remain in the interconnection queue to discourage
speculative interconnection requests and allow transmission providers
to focus on processing viable interconnection requests and to better
approximate the cost of the interconnection study process.\982\
---------------------------------------------------------------------------

    \981\ NOPR, 179 FERC ] 61,194 at P 102.
    \982\ Id. P 103.

---------------------------------------------------------------------------

a. Increased Study Deposits
i. NOPR Proposal
    491. In the NOPR, the Commission proposed to adopt the following
study deposit framework in the pro forma LGIP: \983\
---------------------------------------------------------------------------

    \983\ Id. P 106.

------------------------------------------------------------------------
   Size of proposed generating facility
  associated with interconnection request         Amount of deposit
------------------------------------------------------------------------
> 20 MW < 80 MW...........................  $35,000 + $1,000/MW.
>= 80 MW < 200 MW.........................  $150,000.
>= 200 MW.................................  $250,000.
------------------------------------------------------------------------

    492. The Commission proposed to require transmission providers to
collect this study deposit before each phase of the new first-ready,
first-served cluster study process (i.e., cluster study, cluster
restudy, and facilities study).\984\ The Commission proposed to require
the interconnection customer to provide: (1) an initial study deposit
along with its interconnection request, which will be used to pay for
the cluster study; (2) the second study deposit of the same amount
within 20 days of receiving the cluster study report from the
transmission provider to cover the cost of any clustered restudies; and
(3) the third study deposit of the same amount along with its executed
facilities study agreement. The Commission explained that study
deposits would be refundable, and that the transmission provider would
refund any portion of the study deposits above the applicable study
costs and withdrawal penalties once the interconnection customer
executes the LGIA, requests the filing of an unexecuted LGIA and
submits the corresponding payment discussed below, or withdraws from
the interconnection queue. The Commission also proposed to delete
section 8.1.1 of the pro forma LGIP to remove the requirement for
transmission providers to invoice interconnection customers on a
monthly basis for the work conducted on the facilities study.
---------------------------------------------------------------------------

    \984\ Id. P 107.
---------------------------------------------------------------------------

    493. The Commission sought comment on whether: (1) the proposed
study deposit amounts accurately estimate the cost of conducting
cluster studies; and (2) to adopt additional provisions or a different
framework that would require larger proposed generating facilities to
provide a higher deposit amount--such as a per MW framework.\985\
---------------------------------------------------------------------------

    \985\ Id. P 110.
---------------------------------------------------------------------------

ii. Comments
    494. Several commenters fully support the NOPR proposal to increase
study deposits in order to support more effective interconnection queue
management and reduce speculative interconnection requests.\986\
---------------------------------------------------------------------------

    \986\ AEP Initial Comments at 20; APPA-LPPC Initial Comments at
18; CAISO Initial Comments at 15-16; Consumers Energy Initial
Comments at 5; EEI Initial Comments at 6-7; NARUC Initial Comments
at 10; NYTOs Initial Comments at 17; Pennsylvania Commission Initial
Comments at 14; SoCal Edison Initial Comments at 5; U.S. Chamber of
Commerce Initial Comments at 8; UMPA Initial Comments at 5; Vistra
Initial Comments at 6.
---------------------------------------------------------------------------

    495. Other commenters express qualified support for the
proposal.\987\ For example, ELCON, New York Commission and NYSERDA, and
NextEra contend that it is important that such measures be carefully
balanced so that they are not overly burdensome or discouraging to
interconnection customers with legitimate proposed generating
facilities that may be delayed for reasons out of their control.\988\
Clean Energy Associations do not oppose the heightened study deposit
requirements, provided that they are paired with real predictability on
the timing of studies and real certainty on the costs of network
upgrades.\989\ CAISO argues that the Commission must raise study
deposits significantly, and contends that it is illusory to argue that
interconnection customers without significant capital can progress to
commercial operation in today's hyper-competitive climate.\990\ PPL
asserts that the Commission's proposed study deposits are likely on the
low end of what is required to ensure proper ``skin in the game,'' but
should work for many regions, including New England.\991\ Tri-State
overall supports the proposed study deposit amounts but notes that
interconnection customers proposing smaller generating facilities will
end up paying a lower study deposit than what Tri-State is currently
charging.\992\ ENGIE, MISO, and SPP would prefer to collect study
deposits only once upon entry into the cluster, rather than at each
stage of the cluster study process, to reduce administrative burden on
them and the interconnection customers.\993\ MISO and Shell argue that
limiting speculative interconnection requests and ensuring more
concrete financial readiness would be better achieved by requiring a
single study deposit at the initiation of the generator interconnection
process.\994\ Shell urges the Commission to base that deposit on the
generating facility's size.
---------------------------------------------------------------------------

    \987\ ACE-NY Initial Comments at 4; AES Initial Comments at 14;
Ameren Initial Comments at 14; APPA-LPPC Initial Comments at 18; APS
Initial Comments at 13; Avangrid Initial Comments at 16; Bonneville
Initial Comments at 11; CESA Initial Comments at 8-9; Clean Energy
Associations Initial Comments at 30; Cypress Creek Initial Comments
at 20; Dominion Initial Comments at 24; EEI Initial Comments at 6;
ELCON Initial Comments at 10; ENGIE Initial Comments at 4;
Eversource Initial Comments at 16; Google Initial Comments at 20;
Fervo Energy Initial Comments at 4; Idaho Power Initial Comments at
6; ISO-NE Initial Comments at 27; MISO Initial Comments at 49;
National Grid Initial Comments at 20; NESCOE Reply Comments at 8,
10; New York Commission and NYSERDA Initial Comments at 8; NextEra
Initial Comments at 20; NRECA Initial Comments at 25; NV Energy
Initial Comments at 14; NYISO Initial Comments at 19-20; Omaha
Public Power Initial Comments at 6; Pacific Northwest Utilities
Initial Comments at 4; PJM Initial Comments at 24; PPL Initial
Comments at 15; SEIA Initial Comments at 13; Southern Initial
Comments at 8-9; SPP Initial Comments at 9; Tri-State Initial
Comments at 4, 12.
    \988\ ELCON Initial Comments at 10; New York Commission and
NYSERDA Initial Comments at 8-9; NextEra Initial Comments at 20.
    \989\ Clean Energy Associations Initial Comments at 30.
    \990\ CAISO Initial Comments at 15-16.
    \991\ PPL Initial Comments at 15 (noting that PJM's
interconnection queue reform proposal includes higher deposits,
ranging from $75,000 to $400,000 and a 10% nonrefundable component).
    \992\ Tri-State Initial Comments at 12.
    \993\ ENGIE Initial Comments at 4; MISO Initial Comments at 50;
SPP Initial Comments at 9.
    \994\ MISO Initial Comments at 51; Shell Initial Comments at 17;
Shell Reply Comments at 22.
---------------------------------------------------------------------------

    496. Several commenters argue that the final rule should provide
each region with flexibility concerning the scope and application of
any modifications to increased study deposits.\995\ Indicated PJM TOs
contend that the transmission provider should be entitled to adjust the
study deposit value if it observes that the actual cost of studies
tends to be materially higher or lower.\996\ Dominion adds that the
Commission should respect the previously accepted reforms made by
transmission providers like Dominion and PJM with regard to study
deposits.\997\
---------------------------------------------------------------------------

    \995\ Avangrid Initial Comments at 17; Bonneville Initial
Comments at 11; Dominion Initial Comments at 24; Indicated PJM TOs
Reply Comments at 29; Interwest Reply Comments at 12; ISO-NE Initial
Comments at 28; National Grid Initial Comments at 21; New York
Commission and NYSERDA Initial Comments at 9; NESCOE Reply Comments
at 9-10; NRECA Initial Comments at 26; NYISO Initial Comments at 19;
Pacific Northwest Utilities Initial Comments at 2; SPP Initial
Comments at 10.
    \996\ Indicated PJM TOs Reply Comments at 29.
    \997\ Dominion Initial Comments at 24.
---------------------------------------------------------------------------

    497. APS suggests that any refundable deposits should not include
the Commission interest rate and argues that, by requiring additional
funds to be deposited as described in the NOPR, the Commission's
proposal would lead to an exorbitant increase in the amount of
Commission interest paid back to an interconnection customer as it
moves along through the process at the transmission provider's
expense.\998\
---------------------------------------------------------------------------

    \998\ APS Initial Comments at 13.
---------------------------------------------------------------------------

    498. Other commenters mostly oppose the NOPR proposal to increase
study

deposits.\999\ CREA and NewSun agree that a tiered study deposit level
tied to interconnection capacity requested may be warranted and at most
study deposits should be increased to more accurately cover the cost of
the studies, but comment that the rest of the NOPR's proposal appears
to increase the study deposit levels solely to deter interconnection
customers from entering the interconnection queue, not because the
current level of study deposits is insufficient to cover the costs of
the studies.\1000\ CREA and NewSun argue that, if this rulemaking
generates evidence that the current study deposit levels are
insufficient to cover the typical costs of studies, an increase may be
justified, but until then, study deposits should not be increased.
Eversource recommends that the Commission consider making the rate of
increase per MW more gradual, and that based on the current proposed
figures, the deposits may increase too quickly relative to generating
facility size.\1001\ rPlus argues that study deposit requirements are
unduly discriminatory or punitive to pumped storage as compared to
other renewable technologies because a large capacity pumped storage
facility would expect to hit the maximum deposit and/or penalty in
every stage of the interconnection study process, LGIA, and potential
withdrawal.\1002\ RWE Renewables fully supports allocating some risk
for each generating facility entered into the interconnection queue to
interconnection customers, but argues that increased financial deposits
have unfortunately not been an adequate deterrent to a high volume of
non-viable generating facilities entering into the interconnection
queues.\1003\
---------------------------------------------------------------------------

    \999\ CREA and NewSun Initial Comments at 51-52; Eversource
Initial Comments at 16; rPlus Initial Comments at 5; RWE Renewables
Initial Comments at 2.
    \1000\ CREA and NewSun Initial Comments at 51-52.
    \1001\ Eversource Initial Comments at 16.
    \1002\ rPlus Initial Comments at 5.
    \1003\ RWE Renewables Initial Comments at 2.
---------------------------------------------------------------------------

    499. In response to the Commission's request for comment on whether
the proposed study deposit amounts accurately estimate the cost of
conducting cluster studies, Ameren states that, based on its
experience, the proposed study deposits are in line with the cost of
conducting the cluster studies.\1004\ Xcel contends that the proposed
study deposits are more than the cost of studies in its experience, but
as studies will need to be accelerated under the Commission's proposal
(to meet timelines) and may involve more actions, the proposed study
cost may be appropriate.\1005\ NV Energy states that, on average, it
spends between $80,000 and $100,000 between the cluster system impact
study and facilities studies and refunds the remaining deposits with
interest.\1006\ Cypress Creek comments that in its experience, study
costs can vary widely depending on the transmission provider, the staff
resources it has available to conduct the study, and whether it needs
to contract with external resources to conduct the study.\1007\
---------------------------------------------------------------------------

    \1004\ Ameren Initial Comments at 14.
    \1005\ Xcel Energy Initial Comments at 29-30.
    \1006\ NV Energy Initial Comments at 14.
    \1007\ Cypress Creek Initial Comments at 20-21.
---------------------------------------------------------------------------

    500. CREA and NewSun urge the Commission to maintain a lower study
deposit prior to obtaining the initial cluster study. They argue that
larger study deposits are only justified once the interconnection
customer can realistically assess the commercial viability of its
proposed generating facility within the cluster after obtaining the
potential interconnection costs.\1008\ Fervo Energy contends that more
information is needed before one can conclude that the proposed study
deposit amount framework would not result in deposits that far exceed
the actual cost of the studies, particularly in light of the withdrawal
penalty proposal.\1009\ Cypress Creek suggests that the Commission
should provide additional justification and argues that the NOPR fails
to provide any further justification for study costs (i.e., based on a
market analysis or other method), stating only that the proposed
amounts ``better approximate the cost of the interconnection study
process.'' \1010\
---------------------------------------------------------------------------

    \1008\ CREA and NewSun Initial Comments at 53.
    \1009\ Fervo Energy Initial Comments at 4.
    \1010\ Cypress Creek Initial Comments at 20 (quoting NOPR, 179
FERC ] 61,194 at P 103).
---------------------------------------------------------------------------

    501. In response to the Commission's request for comment on whether
the Commission should adopt additional provisions or a different
framework that would require larger proposed generating facilities to
provide a higher study deposit amount, such as a per MW framework, PJM
contends that the Commission should adopt readiness payments or study
deposits based on the costs of the network upgrades necessary to
interconnect the generating facilities in the cluster, which also
contain ``at-risk'' non-refundable provisions.\1011\
---------------------------------------------------------------------------

    \1011\ PJM Initial Comments at 24.
---------------------------------------------------------------------------

iii. Commission Determination
    502. We adopt, with modification, the NOPR proposal to require
interconnection customers to pay, and transmission providers to
collect, study deposits as part of the cluster study process.\1012\
Specifically, we adopt the NOPR proposal to require the following study
deposit framework in section <IP_ADDRESS> of the pro forma LGIP:
---------------------------------------------------------------------------

    \1012\ Here, we refer to initial study deposits separately from
the LGIA deposit. We discuss the latter in section III.A.6.d below.
In the NOPR, the Commission discussed the deposits together, NOPR,
179 FERC ] 61,194 at P 109, although the proposed pro forma LGIP
treated the initial study deposit, proposed pro forma LGIP section
<IP_ADDRESS> (Initial Study Deposit), separate from the LGIA deposit,
proposed pro forma LGIP section <IP_ADDRESS> (LGIA Deposit).

------------------------------------------------------------------------
   Size of proposed generating facility
  associated with interconnection request         Amount of deposit
------------------------------------------------------------------------
> 20 MW < 80 MW...........................  $35,000 + $1,000/MW.
>= 80 MW < 200 MW.........................  $150,000.
>= 200 MW.................................  $250,000.
------------------------------------------------------------------------

    503. However, we modify the NOPR proposal to require transmission
providers to collect a single study deposit only once upon entry into
the cluster (initial study deposit), rather than requiring transmission
providers to collect a study deposit at each phase of the cluster study
process, as proposed in the NOPR. Therefore, we decline to adopt the
proposed revisions to sections <IP_ADDRESS>, 7.5, and 8.1 of the pro forma
LGIP that would have implemented the phased study deposit approach. As
a result of this modification to the NOPR proposal, the initial study
deposit will be required only at the time the interconnection customer
submits an interconnection request. The amount of the initial study
deposit will be calculated using the tiered approach proposed in the
NOPR based on the proposed MW size of the generating facility, as shown
in the chart above.
    504. We adopt the tiered approach based on the proposed MW size of
the generating facility for determining the amount of the initial study
deposit because larger proposed generating facilities within a cluster
generally cost more to study than smaller proposed generating
facilities within a cluster. Further, although we acknowledge that this
approach does not perfectly approximate study costs, we find it
appropriate to require the transmission provider to collect a study
deposit based on a tiered approach because study costs will be trued up
and any excess deposit refunded once the interconnection customer
executes the LGIA or requests the filing of an unexecuted LGIA and
submits the corresponding payment discussed below or withdraws from the
interconnection queue.
    505. We modify the NOPR proposal to require only a single initial
study deposit, rather than multiple deposits at

different stages of the cluster study process, as proposed in the NOPR.
We believe that this modification will appropriately reduce the
administrative burden for transmission providers to collect and manage
the deposits.\1013\ We recognize that the amount of the study deposit
for interconnection customers will be lower than that proposed in the
NOPR because of this modification. We are persuaded by commenters'
arguments that initial study deposits are best used to provide
transmission providers with funds to cover the costs of studies
performed for interconnection customers rather than to serve as a
disincentive against speculative interconnection requests.\1014\ We
therefore adopt an initial study deposit framework that better reflects
the costs of the interconnection studies. For example, NV Energy states
that, on average, it spends between $80,000 and $100,000 between the
cluster system impact study and facilities studies and refunds the
remaining deposits with interest.\1015\ Under the study deposit
framework we adopt, study deposits range between $55,000 and $250,000
for the smallest and largest proposed generating facilities,
respectively, and thus reasonably track likely study costs based on the
record. We believe that other reforms adopted in this final rule--
notably, the commercial readiness deposits and the site control
requirements--will adequately serve as a disincentive against
speculative interconnection requests without unnecessarily duplicating
those efforts through increased study deposits.
---------------------------------------------------------------------------

    \1013\ See ENGIE Initial Comments at 4; MISO Initial Comments at
50; SPP Initial Comments at 9.
    \1014\ See Order No. 2003, 104 FERC ] 61,103 at P 220.
    \1015\ NV Energy Initial Comments at 14.
---------------------------------------------------------------------------

    506. Additionally, we adopt the NOPR proposal to delete section
8.1.1 of the pro forma LGIP to remove the requirement for transmission
providers to invoice interconnection customers on a monthly basis for
the work conducted on the facilities study. We find that this monthly
invoicing requirement is burdensome to the transmission provider and
unnecessary given that section 13.3 of the pro forma LGIP includes
policies for invoicing and establishes that interconnection customers
are responsible for the actual costs of interconnection studies.
Accordingly, we also delete from pro forma LGIP Appendix 3
(Interconnection Facilities Study Agreement), the portion of article
5.0 that includes the monthly invoicing requirement.
    507. We disagree with rPlus' argument that study deposit
requirements are unduly discriminatory or punitive to pumped storage
because of its large capacity.\1016\ We note that the initial study
deposit reforms we adopt in this final rule are agnostic to the type of
generating facility. Rather, the initial study deposits are based on
the MW size of the proposed generating facility, regardless of the type
of generating facility, such that interconnection customers proposing
larger generating facilities will pay a larger deposit. As explained
above, this reflects the fact that the expected costs to study those
generating facilities are generally higher. Nonetheless, the
modification we adopt here has the effect of lowering the required
study deposit for all interconnection customers relative to the NOPR
proposal, a finding which may partially allay rPlus' concern.
---------------------------------------------------------------------------

    \1016\ See rPlus Initial Comments at 5.
---------------------------------------------------------------------------

b. Demonstration of Site Control
i. NOPR Proposal
    508. In the NOPR, the Commission stated that it believed that more
stringent site control requirements will help prevent interconnection
customers from submitting interconnection requests for speculative,
commercially non-viable proposed generating facilities.\1017\ The
Commission preliminarily found that an interconnection customer
securing the exclusive land right necessary to construct its proposed
generating facility (or for co-located resources, demonstration of
shared land use) is sufficient evidence of the interconnection
customer's commitment to construct the generating facility.
---------------------------------------------------------------------------

    \1017\ NOPR, 179 FERC ] 61,194 at P 115.
---------------------------------------------------------------------------

    509. The Commission proposed to revise the pro forma LGIP to
require interconnection customers to demonstrate 100% site control for
their proposed generating facilities when they submit their
interconnection request.\1018\ The Commission proposed to have
transmission providers include in their tariff specific acreage
requirements for each generating facility technology type to
demonstrate site control.
---------------------------------------------------------------------------

    \1018\ Id. P 116. In the NOPR, the Commission proposed to define
``site control'' as ``the exclusive land right to develop,
construct, operate, and maintain the Generating Facility over the
term of expected operation of the Generating Facility.''
Specifically, the NOPR definition explained that site control may be
demonstrated by documentation establishing: (1) ownership of, a
leasehold interest in, or a right to develop a site of sufficient
size to construct and operate the Generating Facility or multiple
Generating Facilities on a shared site behind one Point of
Interconnection; (2) an option to purchase or acquire a leasehold
site for such purpose; (3) site of sufficient size to construct and
operate the Generating Facility; or (4) any other documentation that
clearly demonstrates the right of Interconnection Customer to
exclusively occupy a site of sufficient size to construct and
operate the Generating Facility. Site Control for any Co-Located
Resource is demonstrated by a contract or other agreement
demonstrating shared land use for all Co-Located Resources that meet
the aforementioned provisions of the Site Control definition.
---------------------------------------------------------------------------

    510. To cut down on multiple interconnection customers leasing the
same site in order to remain in the interconnection queue, the
Commission proposed to revise the pro forma LGIP to require
interconnection customers to demonstrate the exclusive land right
(where the land rights are exclusive to the interconnection customer,
not necessarily the individual generating facility) to develop,
construct, operate, and maintain its generating facility or, where
facilities are co-located, to demonstrate a shared land use right to
develop, construct, operate, and maintain co-located facilities.\1019\
---------------------------------------------------------------------------

    \1019\ Id. P 117.
---------------------------------------------------------------------------

    511. Additionally, the Commission proposed to include a limited
option for interconnection customers to submit a deposit in lieu of
site control when they submit their interconnection request only when
regulatory limitations prohibit the interconnection customer from
obtaining site control.\1020\ The Commission explained that in such
instances, the interconnection customer would submit an initial deposit
in lieu of site control of $10,000 per MW, subject to a floor of
$500,000 and a ceiling of $2 million, which would be applied toward any
interconnection studies or a withdrawal penalty, if applicable. The
Commission specified that such an interconnection customer must
demonstrate 100% site control prior to the facilities study. The
Commission further proposed that, after the interconnection customer
notifies the transmission provider of a change to its site control
demonstration, the transmission provider must give the interconnection
customer 10 business days to demonstrate that the site control
demonstration meets the applicable requirement after
notification.\1021\
---------------------------------------------------------------------------

    \1020\ Id. P 118.
    \1021\ Id. P 119.
---------------------------------------------------------------------------

    512. The Commission sought comment on: (1) whether there are other
specific situations in which the Commission should accept a deposit in
lieu of site control; (2) whether the definition of site control,
including the requirement to obtain an exclusive land right (or, for
co-located resources, a shared land right), should be broadened or
refined to account for circumstances that may arise in, for example,
the siting

and permitting of offshore resources in bodies of water and/or
submerged land; (3) whether and how the definition of site control
should be adjusted for interconnection customers to account for any
regulatory requirements they may have associated with proposed
generating facilities developed on sites owned or physically controlled
by a state government entity and/or a Federal Government entity; (4)
the appropriate stage in developing such sites when the Commission
should view completion of such stage as indicative of an
interconnection customer's request being non-speculative and whether
there are substantive differences among interconnection customers
developing sites owned or physically controlled by a state government
entity and/or a Federal Government entity; (5) whether the Commission
should allow transmission providers to accept demonstrations of less
than 100% site control in the initial phases of the interconnection
study process, outside of when regulatory limitations prohibit the
interconnection customer from obtaining site control; and (6) whether
the Commission should instead adopt site control provisions that allow
a deposit in lieu of site control to enter the generator
interconnection process and be evaluated under the first-ready, first-
served cluster study process described above but require
interconnection customers to demonstrate site control to enter the
facilities study.\1022\
---------------------------------------------------------------------------

    \1022\ Id. PP 121-123.
---------------------------------------------------------------------------

ii. Comments
(a) General Comments
    513. Several parties generally support the proposal to increase
site control requirements.\1023\ These commenters generally agree that
the proposal is reasonable and that these measures can reduce
speculative interconnection requests, represent a reasonable financial
burden, help ensure that the interconnection customer is ready to enter
the interconnection queue,\1024\ help load serving entities have
generating facilities interconnected as quickly and efficiently as
possible,\1025\ and reduce harm to other interconnection customers that
have successfully secured site control for their proposed generating
facility.\1026\
---------------------------------------------------------------------------

    \1023\ AEP Initial Comments at 21; AES Initial Comments at 15;
Ameren Initial Comments at 15-16; APPA-LPPC Initial Comments at 17-
18; Avangrid Initial Comments at 9, 18-19; Bonneville Initial
Comments at 11; CAISO Initial Comments at 16; Consumers Energy
Initial Comments at 5; Dominion Reply Comments at 15; ELCON Initial
Comments at 10; Enel Initial Comments at 40-42; Eversource Initial
Comments at 16; Fervo Energy Reply Comments at 6; GSCE Initial
Comments at 1; Hydropower Commenters Initial Comments at 12;
Interwest Energy Alliance Reply Comments at 13; Invenergy Initial
Comments at 9; Longroad Energy Initial Comments at 12; MISO Initial
Comments at 53; NARUC Initial Comments at 10; NRECA Initial Comments
at 27; NV Energy Initial Comments at 15; NYTOs Initial Comments at
18-19; [Oslash]rsted Initial Comments at 10; Pacific Northwest
Utilities Initial Comments at 4; PG&E Initial Comments at 4; Pattern
Energy Initial Comments at 29-30; Pine Gate Initial Comments at 23;
PJM Initial Comments at 21-22; SEIA Initial Comments at 14; SoCal
Edison Initial Comments at 6; Tri-State Initial Comments at 13-15;
U.S. Chamber of Commerce Initial Comments at 8; UMPA Initial
Comments at 5; Xcel Initial Comments at 32.
    \1024\ Enel Initial Comments at 40.
    \1025\ Ameren Initial Comments at 15-16.
    \1026\ PJM Initial Comments at 29.
---------------------------------------------------------------------------

    514. CREA and NewSun, on the other hand, argue that the
Commission's proposed site control requirements are anti-competitive
because they allow utilities to erect market barriers to competitors'
generating facilities and because the requirements bar investment by
companies seeking to develop generating facilities using a merchant
generation model.\1027\
---------------------------------------------------------------------------

    \1027\ CREA and NewSun Reply Comments at 46.
---------------------------------------------------------------------------

(b) Comments on Specific Proposal
(1) Definition and Reasonable Evidence of Site Control
    515. Some commenters support the proposed definition of site
control.\1028\ MISO notes that the proposed requirement for exclusivity
or the demonstration of a right to co-locate generating facilities is
in MISO's current tariff and that these requirements have proven to be
successful at preventing speculative interconnection requests from
entering or continuing in the interconnection queue.\1029\
---------------------------------------------------------------------------

    \1028\ MISO Initial Comments at 53; National Grid Initial
Comments at 22.
    \1029\ MISO Initial Comments at 53.
---------------------------------------------------------------------------

    516. Some commenters suggest modifications to the definition of
site control. ENGIE and Tri-State recommend that the Commission
consider requirements similar to MISO's requirements to identify when
and whether an interconnection request is non-speculative.\1030\ Xcel
supports modifying the definition of site control to ensure exclusivity
and allow for co-ownership.\1031\
---------------------------------------------------------------------------

    \1030\ ENGIE Initial Comments at 5; Tri-State Initial Comments
at 14.
    \1031\ Xcel Initial Comments at 31.
---------------------------------------------------------------------------

    517. PJM requests that the Commission clarify that interconnection
customers are prohibited from submitting evidence of site control that
uses the same land for multiple interconnection requests, unless the
site is large enough to host multiple generating facilities.\1032\
---------------------------------------------------------------------------

    \1032\ PJM Initial Comments at 31.
---------------------------------------------------------------------------

    518. Enel supports the proposal to require land rights that are
exclusive to one development company, but not necessarily to the
individual generating facility.\1033\ According to Enel, when used
regarding land rights, ``exclusive'' means that only the owner of those
land rights can possess the property, and this interpretation could
prevent co-located resources from being built if one parent company was
using two separate special purpose vehicles for two different
generating facilities sharing land. Enel therefore recommends that the
Commission clarify the intent of this word so that it does not
artificially restrict multi-use applications.
---------------------------------------------------------------------------

    \1033\ Enel Initial Comments at 42 (referencing NOPR, 179 FERC ]
61,194 at P 117).
---------------------------------------------------------------------------

    519. Cypress Creek believes that, to the extent the Commission
intends that a ``land right'' should involve zoning approval, such a
proposal would be unreasonable because interconnection customers do not
typically initiate local permitting until the system impact study
phase, due to the system impact study's impact to overall generating
facility commercial viability.\1034\
---------------------------------------------------------------------------

    \1034\ Cypress Creek Initial Comments at 22.
---------------------------------------------------------------------------

    520. Southern requests that the Commission clarify subpart (3) of
the proposed site control definition, arguing that, as written, it
appears to be an incomplete statement that may authorize an
interconnection customer to simply provide evidence that a site is big
enough to host a proposed generating facility rather than evidence that
the interconnection customer actually has any rights to that
property.\1035\ Enel argues that subpart (3) to the definition should
be deleted, because as modified, that item is duplicative of and a
subset of the materials covered under subpart (1).\1036\
---------------------------------------------------------------------------

    \1035\ Southern Initial Comments at 34-35.
    \1036\ Enel Initial Comments at 82.
---------------------------------------------------------------------------

    521. Other parties request that the Commission clarify the
definition of site control to specify what constitutes reasonable
evidence to demonstrate 100% site control \1037\ or provide suggestions
for what should be considered reasonable evidence of site
control.\1038\ NYISO requests that the final rule establish uniform
requirements across regions for making the 100% site control
determination.\1039\ APS requests that the Commission specify what is
considered reasonable evidence in the same manner that the

Commission defines commercial readiness milestones and argues that
clarification is needed in order to avoid subjectivity regarding what
is considered ``reasonable'' evidence to the transmission
provider.\1040\
---------------------------------------------------------------------------

    \1037\ APS Initial Comments at 7; NYISO Initial Comments at 21-
22; Omaha Public Power Initial Comments at 7.
    \1038\ EPSA Initial Comments at 8; National Grid Initial
Comments at 22; NRECA Initial Comments at 27; Omaha Public Power
Initial Comments at 7; SoCal Edison Initial Comments at 6.
    \1039\ NYISO Initial Comments at 21-22.
    \1040\ APS Initial Comments at 7.
---------------------------------------------------------------------------

    522. Omaha Public Power requests that the Commission clarify
whether transmission providers will be able to accept lease options,
instead of executed leases, as sufficient evidence of site
control.\1041\ Omaha Public Power notes that it has become industry
standard to use lease options and argues that the Commission should not
enact a rule that conflicts with current industry standard practices.
SoCal Edison supports the NOPR proposal, provided that 100% site
control includes an option to lease up to, and including, the
commercial operation date or acquire the land when the interconnection
request is submitted.\1042\
---------------------------------------------------------------------------

    \1041\ Omaha Public Power Initial Comments at 7-8.
    \1042\ SoCal Edison Initial Comments at 6.
---------------------------------------------------------------------------

    523. EPSA advises the Commission to consider options to demonstrate
site control, including requiring attestations that a lessee or
potential owner is in exclusive negotiations to establish site control,
though it generally supports the development of clearer
demonstrations.\1043\ Interwest Energy Alliance recommends that the
Commission consider evidence of active negotiations as potentially a
sufficient demonstration of site control before the closing of the
cluster request window.\1044\
---------------------------------------------------------------------------

    \1043\ EPSA Initial Comments at 8.
    \1044\ Interwest Energy Alliance Reply Comments at 13.
---------------------------------------------------------------------------

    524. SoCal Edison recommends that the Commission consider requiring
that site control agreements be between the site owner and the same
legal entity that is submitting the interconnection request.\1045\
SoCal Edison explains that it has run into challenges when trying to
determine whether interconnection customers have exclusive site
control, in part due to the fact that companies change over time with
renaming and/or mergers.
---------------------------------------------------------------------------

    \1045\ SoCal Edison Initial Comments at 6.
---------------------------------------------------------------------------

    525. NRECA suggests that demonstration of site control with
exclusive land rights should be allowed to include provisions that such
rights are contingent upon favorable interconnection study results,
inclusive of cost and schedule.\1046\ NRECA notes that site control
land options on many occasions come with a caveat that the lessee or
purchaser has the ability to terminate within a due diligence period if
interconnection results are unfavorable due to cost or schedule.\1047\
---------------------------------------------------------------------------

    \1046\ NRECA Initial Comments at 27.
    \1047\ Id. at 27 n.70.
---------------------------------------------------------------------------

    526. NV Energy requests clarification on whether an interconnection
request should be deemed withdrawn if the interconnection customer does
not provide demonstration of site control by the execution of the
facilities study agreement.\1048\
---------------------------------------------------------------------------

    \1048\ NV Energy Initial Comments at 15.
---------------------------------------------------------------------------

    527. [Oslash]rsted urges the Commission to clarify that, for
offshore wind projects, the definition of ``exclusive site control of
the entire generating facility'' means exclusive control of the Bureau
of Ocean Energy Management (BOEM) issued offshore wind lease area, not
cable routes on state submerged land or onshore cable routes to the
point of interconnection.\1049\ [Oslash]rsted reasons that, due to the
extensive state and Federal permitting process, offshore wind
developers may not have authorization in the form of permits or other
land use rights for portions of the offshore wind project on state
submerged land or for the offshore and onshore cable routes during the
interconnection process.
---------------------------------------------------------------------------

    \1049\ [Oslash]rsted Initial Comments at 14.
---------------------------------------------------------------------------

    528. NYTOs and Pacific Northwest Utilities argue that it is unclear
what would constitute 100% site control and therefore regions should be
allowed to implement appropriate definitions for their regions on
compliance to address their specific circumstances.\1050\
---------------------------------------------------------------------------

    \1050\ NYTOs Initial Comments at 19; Pacific Northwest Utilities
Initial Comments at 4.
---------------------------------------------------------------------------

    529. ISO-NE states that its existing LGIP and SGIP provisions,
which are consistent with those proposed in the NOPR, have proven to be
effective, and that the Commission should extend flexibility so that
they may be maintained.\1051\ Similarly, Indicated PJM TOs argue that
the final rule should permit PJM to implement its 2022 interconnection
queue reform proposal for demonstrating site control, which is more
rigorous than the NOPR proposal.\1052\
---------------------------------------------------------------------------

    \1051\ ISO-NE Initial Comments at 29.
    \1052\ Indicated PJM TOs Initial Comments at 25 (citing PJM
Interconnection, L.L.C., Tariff Revisions for Interconnection
Process Reform, Docket No. ER22-2110-000 (filed June 14, 2022)). The
Commission conditionally accepted PJM's filing on November 29, 2022
and accepted PJM's associated compliance filing on February 2, 2023.
See PJM Interconnection, L.L.C., 181 FERC ] 61,162 (2022), order on
reh'g, 184 FERC ] 61,006 (2023); PJM Interconnection, L.L.C., Docket
No. ER22-2110-003 (Feb. 2, 2023) (delegated letter order).
---------------------------------------------------------------------------

    530. Several parties support the NOPR proposal to define 100% site
control as an acreage requirement specific to the generating facility
type and to require these acreage requirements in the tariff.\1053\
Enel states that inclusion of acreage requirements in the tariff gives
the Commission visibility into regional requirements to ensure that no
transmission provider is significantly out of line with national
assumptions.\1054\
---------------------------------------------------------------------------

    \1053\ AES Initial Comments at 15; Enel Initial Comments at 42;
NYISO Initial Comments at 21; Tri-State Initial Comments at 13.
    \1054\ Enel Initial Comments at 42.
---------------------------------------------------------------------------

    531. Several commenters request that the Commission create a
process by which an interconnection customer can demonstrate that its
generating facility requires a different amount of acreage than the
default value listed in the tariff.\1055\ AES predicts that this
approach will help ensure viable generating facilities are not
inadvertently removed from the interconnection queue.\1056\ MISO states
that its tariff also allows an interconnection customer to demonstrate
that it can operate the proposed generating facility with fewer
acres.\1057\ National Grid believes that regional flexibility would
certainly be required for each transmission provider's proposed acreage
requirements and requests clarification accordingly.\1058\ Some
commenters suggest that transmission providers be required to update
the acreage requirements periodically to reflect technological
advancements.\1059\
---------------------------------------------------------------------------

    \1055\ AES Initial Comments at 16; Clean Energy Associations
Initial Comments at 32-33; Public Interest Organizations Initial
Comments at 27.
    \1056\ AES Initial Comments at 16.
    \1057\ MISO Initial Comments at 54.
    \1058\ National Grid Initial Comments at 23.
    \1059\ Clean Energy Associations Initial Comments at 32-33;
Longroad Energy Initial Comments at 12; Pattern Energy Initial
Comments at 29-30.
---------------------------------------------------------------------------

    532. Other parties oppose the NOPR proposal to require specific
acreage requirements in the tariff \1060\ or suggest that these
requirements should be included in business practice manuals rather
than tariffs.\1061\ Some commenters argue that these acreage
requirements will likely change with technology advances, and it would
be burdensome if transmission providers are required to submit an FPA
section 205 filing every time they need to change acreage
requirements.\1062\ Fervo Energy argues that the risk in this proposal
is that the acreage requirements may understate the energy

density of a generating facility and thus overstate the number of acres
required for a given number of MW, resulting in discriminatory
treatment between competing generation technologies.\1063\
---------------------------------------------------------------------------

    \1060\ EPSA Initial Comments at 8; Fervo Energy Initial Comments
at 4; [Oslash]rsted Initial Comments at 11; Pine Gate Initial
Comments at 24-25; PJM Initial Comments at 30.
    \1061\ MISO Initial Comments at 53-54; Pine Gate Initial
Comments at 24-25; PJM Initial Comments at 30; Tri-State Initial
Comments at 13.
    \1062\ [Oslash]rsted Initial Comments at 11; PJM Initial
Comments at 30; Pine Gate Initial Comments at 24-25.
    \1063\ Fervo Energy Initial Comments at 4.
---------------------------------------------------------------------------

    533. [Oslash]rsted recommends that transmission providers use the
most recent estimates of power density from BOEM when establishing
acreage requirements for offshore wind projects.\1064\ [Oslash]rsted
notes that offshore wind turbines have grown much larger in recent
years, which allows significantly more power production from the same
amount of acreage, and they argue that if transmission providers'
tariffs were not updated frequently enough, the acreage requirements
may become unreasonable.
---------------------------------------------------------------------------

    \1064\ [Oslash]rsted Initial Comments at 11.
---------------------------------------------------------------------------

    534. Pine Gate recommends that acreage requirements specifically
address how the requirements will be applied to hybrid and co-located
generating facilities.\1065\
---------------------------------------------------------------------------

    \1065\ Pine Gate Initial Comments at 24-25.
---------------------------------------------------------------------------

    535. Some commenters request that the Commission clarify whether
the site control requirement is limited to the generating facility or
whether it also applies to transmission system elements like
interconnection facilities or other upgrades that may be identified
through the interconnection study process.\1066\ Several parties argue
that, for the initial request and study phase, 100% site control should
not apply to land required to finalize routes for generator ties
lines.\1067\ AES argues that interconnection customers require
flexibility when siting generator tie lines, which usually occurs near
the very end of the interconnection process.\1068\ Enel notes that
there are sometimes crossings of railroads, streams, or other
circumstances that require considerable time to complete and are
outside the interconnection customer's control.\1069\ AEE explains that
issues can occur when interconnection customers have all but one small
parcel on the route of their generating facility secured, with only one
small piece of connectivity missing due to permitting delays or other
issues.\1070\ Similarly, Invenergy argues that it is unreasonable and
impractical to predict and obtain rights to land for facilities that
have not yet been identified.\1071\ Invenergy also states that the
point of interconnection can change during the study process, thus
changing the land needs for the interconnection customer's
interconnection facilities, and this change may be driven by a number
of different factors, including the transmission provider's preference,
which may be outside the interconnection customer's control.
---------------------------------------------------------------------------

    \1066\ Interwest Energy Alliance Reply Comments at 13; NYISO
Initial Comments at 22.
    \1067\ ACE-NY Initial Comments at 5; AES Initial Comments at 15;
Avangrid Initial Comments at 18; Clean Energy Associations Initial
Comments at 32; Enel Initial Comments at 41; ENGIE Initial Comments
at 5; Equinor Reply Comments at 3; rPlus Initial Comments at 2-3;
Shell Reply Comments at 23.
    \1068\ AES Initial Comments at 15.
    \1069\ Enel Initial Comments at 41.
    \1070\ AEE Initial Comments at 17.
    \1071\ Invenergy Initial Comments at 10.
---------------------------------------------------------------------------

    536. [Oslash]rsted, ACE-NY, and Equinor Wind note a myriad of
challenges for obtaining site control for interconnection facilities
for offshore wind projects, such as conflicts between Federal and state
permitting entity requirements for project flexibility and
adaptability.\1072\ [Oslash]rsted argues that site control for
interconnection facilities for offshore wind developers is only
obtainable very late in the interconnection process.\1073\
---------------------------------------------------------------------------

    \1072\ ACE-NY Initial Comments at 5; Equinor Reply Comments at
4; [Oslash]rsted Initial Comments at 13; [Oslash]rsted Reply
Comments at 2, 4, 5; Shell Reply Comments at 29.
    \1073\ [Oslash]rsted Initial Comments at 12.
---------------------------------------------------------------------------

    537. Other commenters argue that the Commission should expand the
proposed definition of site control to apply some degree of site
control requirements to interconnection facilities, such as a
requirement to demonstrate 50% site control for interconnection
facilities when submitting the interconnection request.\1074\ MISO
encourages the Commission to require site control for interconnection
facilities at the same time that it requires site control for the
generating facilities.\1075\ AEP explains that some interconnection
customers submit interconnection requests that are not feasible given
where interconnection customer interconnection facilities would have to
be sited to connect the generating facility to the transmission system
at the selected point of interconnection.\1076\ Additionally, AEP
explains that, even if a generation site is suitable, there may not be
``room'' at certain locations for a substation or switchyard due to a
variety of issues, including abandoned mines, surrounding wetlands, or
other geographic impediments.\1077\ According to AEP, site control for
generating facilities can be far less important than feasible control
over the land needed to connect the generating facility to the
transmission system.
---------------------------------------------------------------------------

    \1074\ AEE Initial Comments at 18; AEP Initial Comments at 21-
23; Cypress Creek Initial Comments at 22; Enel Initial Comments at
41; MISO Initial Comments at 56; National Grid Initial Comments at
22-23; Shell Reply Comments at 23.
    \1075\ MISO Initial Comments at 56.
    \1076\ AEP Initial Comments at 22.
    \1077\ Id. at 23.
---------------------------------------------------------------------------

    538. Enel argues that the addition of a generator tie line site
control requirement will increase the quality of interconnection study
results and increase certainty for interconnection customers as the
interconnection process becomes more costly and risky to
navigate.\1078\ Enel states that it has observed or heard of
interconnection customers submitting existing site control from very
remote locations to secure interconnection queue positions, and later
submitting a modification request to move the generating facility site
close to the point of interconnection after the generating facility's
actual intended site control has been obtained. Enel states that this
is done by interconnection customers to reduce the duration and
subsequently the cost of maintaining site control, as a failed distant
asset can be used for a new interconnection queue position elsewhere
until site control for the new generating facility area is complete. In
addition, Enel states that it supports SPP's approach, which also
requires 75% of generator tie line site control after the first cluster
restudy, to ensure interconnection customers are making reasonable
progress.
---------------------------------------------------------------------------

    \1078\ Enel Initial Comments at 41-42.
---------------------------------------------------------------------------

    539. National Grid argues that demonstrating site control for
interconnection facilities is crucial for generating facility
development and interconnection queue management particularly in cases
where numerous interconnection requests in the interconnection queue
are reliant on the construction of certain network upgrades.\1079\
National Grid argues that the payment of cash or the provision of other
security in lieu of demonstration of site control of transmission owner
interconnection facilities or network upgrades built by an
interconnection customer does not further the goals of the NOPR.
---------------------------------------------------------------------------

    \1079\ National Grid Initial Comments at 23.
---------------------------------------------------------------------------

(2) Site Control Demonstration
    540. Several commenters support the NOPR proposal to require
interconnection customers to demonstrate 100% site control for their
proposed generating facilities when they submit their interconnection
request.\1080\ MISO argues that obtaining site control is consistent
with the ``first-ready, first-served'' model and that delaying site
control for interconnection

requests until later in the interconnection process just increases the
instances of late-stage withdrawals that leads to uncertainty,
unplanned restudies, and delays for the remaining interconnection
requests.\1081\ National Grid asserts that the demonstration of
complete and exclusive site control is necessary at the interconnection
request stage to avoid submission of interconnection requests
prematurely, potential conflicts with other interconnection requests,
and delays in issuing cluster studies.\1082\ GSCE contends that there
should be few exceptions to a site exclusivity requirement to enter the
cluster study process so leniency is not granted to the type of
interconnection requests that linger in the interconnection queue while
they struggle to secure difficult land rights and permitting.\1083\
---------------------------------------------------------------------------

    \1080\ ACE-NY Initial Comments at 5; APS Initial Comments at 14;
MISO Initial Comments at 56; National Grid Initial Comments at 22;
[Oslash]rsted Initial Comments at 12.
    \1081\ MISO Initial Comments at 56-57.
    \1082\ National Grid Initial Comments at 22.
    \1083\ GSCE Initial Comments at 7.
---------------------------------------------------------------------------

    541. PJM opposes any requirement on transmission providers to
accept demonstrations of less than 100% site control at the time of an
interconnection request, except for accommodations for interconnection
requests for proposed generating facilities to be sited offshore or on
government owned land.\1084\
---------------------------------------------------------------------------

    \1084\ PJM Initial Comments at 32.
---------------------------------------------------------------------------

    542. MISO notes that its tariff requires redemonstrations of site
control.\1085\ Similarly, Indicated PJM TOs support requiring 100% site
control at more than one decision point,\1086\ and assert that
transmission providers should be allowed to confirm site control
throughout the interconnection process.\1087\ Indicated PJM TOs and
Longroad Energy argue that the Commission should strengthen the
proposed site control requirements to ensure that interconnection
customers are maintaining site control throughout the interconnection
process.\1088\
---------------------------------------------------------------------------

    \1085\ MISO Initial Comments at 53.
    \1086\ Indicated PJM TOs Initial Comments at 26 (citing PJM
Interconnection, L.L.C., Motion for Leave to Answer and Answer of
PJM Interconnection, L.L.C., Docket No. ER22-2110-000, at 20 (filed
Aug. 2, 2022)).
    \1087\ Id. at 8, 26.
    \1088\ Indicated PJM TOs Reply Comments at 30; Longroad Energy
Reply Comments at 18.
---------------------------------------------------------------------------

    543. On the other hand, APS believes that simultaneous submission
of the interconnection customer-executed LGIA and the continued
demonstration of site control is duplicative and unnecessary if an
interconnection customer demonstrates site control at the time an
interconnection request is made.\1089\
---------------------------------------------------------------------------

    \1089\ APS Initial Comments at 7.
---------------------------------------------------------------------------

    544. Several commenters oppose the NOPR proposal to require an
interconnection customer to demonstrate 100% site control at the time
of the interconnection request and/or propose alternative site control
requirements.\1090\ A number of commenters express concern that the
NOPR proposal is not compatible with the generating facility
development cycle.\1091\ EPSA argues that a 100% exclusive site control
requirement in advance of the processing of the facilities study is not
reasonable because it overlooks the complicated and extensive process
of negotiating for land leases or purchases.\1092\ Similarly, Cypress
Creek and AEE argue that the NOPR proposal does not reflect realities
of development, which include stringent permitting requirements, and
may disadvantage certain interconnection customers despite being on a
path to full site control and commercial readiness.\1093\ CESA and
Clean Energy Associations argue that the requirement for 100% site
control at the interconnection request stage is excessively stringent
and would significantly favor utility-owned projects.\1094\
---------------------------------------------------------------------------

    \1090\ AEE Initial Comments at 17-18; Clean Energy Associations
Initial Comments at 31-32; CREA and NewSun Initial Comments at 54;
Cypress Creek Initial Comments at 22; EPSA Initial Comments at 8;
NextEra Initial Comments at 21; Pine Gate Initial Comments at 24; R
Street Initial Comments at 8; SEIA Initial Comments at 15; Shell
Reply Comments at 23-24.
    \1091\ AEE Initial Comments at 17; Clean Energy Associations
Initial Comments at 31; CREA and NewSun Initial Comments at 54;
Cypress Creek Initial Comments at 22; EPSA Initial Comments at 8;
NextEra Initial Comments at 21; R Street Initial Comments at 8.
    \1092\ EPSA Initial Comments at 8.
    \1093\ AEE Initial Comments at 17.
    \1094\ CESA Reply Comments at 5.
---------------------------------------------------------------------------

    545. CREA and NewSun argue that the NOPR proposal is not adequately
supported and urge the Commission to maintain the existing site control
requirements.\1095\ CREA and NewSun argue that the proposal is
unreasonable and ``creates a Catch-22'': specifically, that without
reliable visibility as to the interconnection costs and viability for
its proposed generating facility within the specific cluster, the
interconnection customer will not be able to attract investment needed
to secure site control. CREA and NewSun also argue that a landowner
hoping to see property developed may not agree to permanently tie up
land in a lease before the interconnection customer can show
interconnection is viable. CREA and NewSun argue that interconnection
requests may prove uneconomic after receipt of initial interconnection
studies and thereafter cannot finalize site control due to uneconomic
interconnection costs. CREA and NewSun also assert that the Commission
made no effort in the NOPR to ascertain the impact on the market of the
``draconian'' site control rules for such transmission providers that
have been allowed to adopt them.
---------------------------------------------------------------------------

    \1095\ CREA and NewSun Initial Comments at 54-55.
---------------------------------------------------------------------------

    546. R Street argues that requiring even partial site control at
the time of the interconnection request may create delays and increase
project development costs because it would require more options
contracts to be in place with landowners.\1096\ NextEra argues that
site control is a limited indicator of generating facility
viability.\1097\ rPlus argues that requiring 100% site control at the
interconnection request stage will inhibit the flexibility for
interconnection request design changes that is needed to develop pumped
storage projects.\1098\
---------------------------------------------------------------------------

    \1096\ R Street Initial Comments at 13.
    \1097\ NextEra Initial Comments at 21-22.
    \1098\ rPlus Initial Comments at 2.
---------------------------------------------------------------------------

    547. Several commenters recommend that the Commission modify the
site control requirements in the final rule to require less than 100%
site control at the time of the interconnection request. For example,
Clean Energy Associations, SEIA, and Cypress Creek argue that no more
than 75% site control is appropriate at the time of the interconnection
request.\1099\ Shell argues that the Commission should only require
partial site control when the interconnection request is made.\1100\
Clean Energy Associations supports an escalating schedule of site
control through the interconnection process and suggests that the
Commission should modify the NOPR proposal to also require 90% site
control at the post-cluster study decision point and 100% site control
at the post-facilities study decision point.\1101\
---------------------------------------------------------------------------

    \1099\ Clean Energy Associations Initial Comments at 31-32;
Cypress Creek Initial Comments at 22; SEIA Initial Comments at 15.
    \1100\ Shell Reply Comments at 23-24.
    \1101\ Clean Energy Associations Initial Comments at 31-32.
---------------------------------------------------------------------------

    548. AEE argues that 90% site control at the time of the
interconnection request provides interconnection customers sufficient
flexibility.\1102\ Additionally, several commenters state that 100%
site control at the post-facilities study decision point would be
appropriate.\1103\ AEE argues that these altered requirements will
reduce speculative interconnection requests while also providing
incentive for

interconnection customers to pursue remaining land rights after
entering the interconnection queue.\1104\
---------------------------------------------------------------------------

    \1102\ AEE Initial Comments at 18.
    \1103\ Id.; CESA Reply Comments at 5-6; Clean Energy
Associations Initial Comments at 31-32; Cypress Creek Initial
Comments at 22; Xcel Initial Comments at 32.
    \1104\ AEE Initial Comments at 18.
---------------------------------------------------------------------------

    549. Some commenters note that less than 100% site control at the
interconnection request stage would allow interconnection customers
flexibility to address the results of interconnection studies or other
regulatory processes, which may lead to changes in the size or design
of a generating facility.\1105\ Additionally, SEIA requests that the
Commission require transmission providers to allow interconnection
customers to change site boundaries or reduce the size of a proposed
generating facility, as long as the point of interconnection remains
the same, in order to accommodate changes resulting from
interconnection studies or regulatory changes.\1106\ Pine Gate notes
that sometimes interconnection customers are still actively negotiating
with landowners close to the deadline for a cluster review window and
requests the Commission to permit interconnection customers to
demonstrate to the transmission prover that they are in active
negotiations to meet the heightened site control requirements.\1107\
---------------------------------------------------------------------------

    \1105\ CREA and NewSun Initial Comments at 55; SEIA Initial
Comments at 14-15.
    \1106\ SEIA Initial Comments at 15.
    \1107\ Pine Gate Initial Comments at 23-24. Pine Gate notes that
this approach is similar to PJM's where, if PJM accepts the
interconnection customer's demonstration, then PJM will add a
condition precedent to the interconnection agreement requiring that
all site control requirements be met within 180 days of execution.
---------------------------------------------------------------------------

    550. Some commenters highlight that the NOPR proposal may be
problematic or challenging for interconnection customers of certain
technology types or other circumstances where obtaining site control is
difficult. Hydropower Commenters argue that most new hydropower
facilities are sited at existing non-powered dams and therefore
hydropower interconnection customers face unique challenges when it
comes to obtaining site control.\1108\ The Ohio Commission Consumer
Advocate asserts that the proposal may be problematic for
interconnection customers in Ohio because a recent Ohio law permits
Ohio counties to designate unincorporated areas in a county as an area
in which the development of a renewable energy project is
prohibited.\1109\
---------------------------------------------------------------------------

    \1108\ Hydropower Commenters Initial Comments at 13.
    \1109\ Ohio Commission Consumer Advocate Initial Comments at 11.
---------------------------------------------------------------------------

    551. According to Enel, some states limit the duration of site
control.\1110\ Enel asserts that, if site control is near to expiring
for any reason, whether due to state restriction or simply because the
interconnection customer did not anticipate the length of
interconnection or permitting processes, landowners can demand higher
payments than agreed to in the original site control contract. Enel
states that this can change the economics of a proposed generating
facility and even make a proposed generating facility unprofitable,
potentially leading to a late-stage interconnection request withdrawal.
---------------------------------------------------------------------------

    \1110\ Enel Initial Comments at 40.
---------------------------------------------------------------------------

    552. Several commenters argue that the Commission should reject
proposals to weaken the site control requirements proposed in the
NOPR.\1111\ APPA-LPPC argue that EPSA's and SEIA's generalized
complaints do not identify a specific obstacle created by the
Commission's proposal, and APPA-LPPC argue that SEIA's proposal to
scale back the site control requirement to not more than 75% was
considered and rejected by MISO's management and stakeholders over
concerns that it may not be rigorous enough to mitigate the entry of
speculative interconnection requests in the queue.\1112\
---------------------------------------------------------------------------

    \1111\ APPA-LPPC Reply Comments at 2-3; CREA and NewSun Initial
Comments at 55; Indicated PJM TOs Reply Comments at 30; Ohio
Commission Consumer Advocate Initial Comments at 11-12.
    \1112\ APPA-LPPC Reply Comments at 4 (citing Midcontinent Indep.
Sys. Operator, Inc., 169 FERC ] 61,173, at P 9 (2019)).
---------------------------------------------------------------------------

(3) Deposits in Lieu of Site Control
    553. Several commenters support the NOPR proposal to eliminate the
option for interconnection customers to submit a deposit in lieu of
site control except in limited circumstances for regulatory
limitations.\1113\ These commenters express that allowing deposits in
lieu of site control is not sufficient to demonstrate readiness or
deter speculative interconnection requests.\1114\ PJM notes that, in
its experience, the option to provide money in lieu of actual site
control is easily abused by interconnection customers with speculative
interconnection requests.\1115\ CAISO notes that its most recent
cluster study was inundated by interconnection requests without site
control because even a $250,000 deposit in lieu of site control has not
proven to be a deterrent for interconnection customers.\1116\
---------------------------------------------------------------------------

    \1113\ AES Initial Comments at 15; APPA-LPPC Reply Comments at
4; CAISO Initial Comments at 16-17; CREA and NewSun Reply Comments
at 50; Cypress Creek Initial Comments at 22; Dominion Initial
Comments at 31; ENGIE Initial Comments at 4; EEI Initial Comments at
7-8; Eversource Initial Comments at 17; MISO Initial Comments at 57;
NY Commission and NYSERDA Initial Comments at 8-9; NYTOs Initial
Comments at 18-19; Ohio Commission Consumer Advocate Initial
Comments at 12; SEIA Initial Comments at 15; Shell Initial Comments
at 23; Tri-State Initial Comments at 13.
    \1114\ APPA-LPPC Initial Comments at 19; Bonneville Initial
Comments at 11; Idaho Power Initial Comments at 7; PJM Initial
Comments at 26; PPL Initial Comments at 16; Southern Initial
Comments at 8-9; Xcel Initial Comments at 30, 32.
    \1115\ PJM Initial Comments at 26.
    \1116\ CAISO Initial Comments at 17.
---------------------------------------------------------------------------

    554. Some commenters oppose the NOPR proposal and argue that the
option to make deposits in lieu of site control should be available for
all interconnection customers, not just those that demonstrate
regulatory limitations.\1117\ Avangrid believes that an at-risk deposit
in lieu of site control that is set at a reasonable magnitude may be a
good alternative to ensure that an interconnection customer is
rigorously pursuing completion of a proposed generating facility.\1118\
Pacific Northwest Utilities suggest that the Commission should allow
transmission providers the flexibility to determine whether deposits in
lieu of site control are applicable.\1119\
---------------------------------------------------------------------------

    \1117\ Avangrid Initial Comments at 19; Clean Energy
Associations Initial Comments at 32; CREA and NewSun Initial
Comments at 55; Interwest Energy Alliance Reply Comments at 13.
    \1118\ Avangrid Initial Comments at 19.
    \1119\ Pacific Northwest Utilities Initial Comments at 3.
---------------------------------------------------------------------------

(4) Site Control Considerations for Interconnection Customers With
Regulatory Limitations
    555. Some commenters contend that the Commission should modify the
proposed definition of site control to reasonably accommodate
interconnection customers developing generating facilities on sites
owned or controlled by a government entity.\1120\ Several commenters
highlight unique circumstances and challenges for obtaining site
control on certain public lands and other regulatory issues that may
affect an interconnection customer's ability to demonstrate site
control under the NOPR definition.\1121\
---------------------------------------------------------------------------

    \1120\ PPL Initial Comments at 16; Tri-State Initial Comments at
14; Xcel Initial Comments at 31.
    \1121\ Clean Energy Associations Initial Comments at 33-34; CREA
and NewSun Reply Comments at 47-49; Dominion Initial Comments at 31;
ENGIE Initial Comments at 4; Hydropower Commenters Initial Comments
at 14-18, 24-25; Idaho Power Initial Comments at 6-7; NV Energy
Initial Comments at 15-16; [Oslash]rsted Initial Comments at 12;
OSPA Initial Comments at 16-18; rPlus Initial Comments at 2-3.
---------------------------------------------------------------------------

    556. Several commenters argue that the Commission should provide
flexibility to allow transmission providers to establish site control
requirements for generating facilities sited on Federal and public
land.\1122\

Shell notes that securing site control can often be complicated by
fast-changing local, county, and state regulations, and encourages the
Commission to provide sufficient flexibility to enable transmission
providers to make accommodations for local site control
challenges.\1123\
---------------------------------------------------------------------------

    \1122\ Dominion Initial Comments at 32; Indicated PJM TOs
Initial Comments at 26; Pacific Northwest Utilities Initial Comments
at 3; PJM Initial Comments at 31; Shell Initial Comments at 23.
    \1123\ Shell Initial Comments at 23.
---------------------------------------------------------------------------

    557. Some commenters provide recommendations on how the Commission
could clarify what may constitute a sufficient demonstration of site
control for generating facilities being developed on land owned or
controlled by a government entity.\1124\ Pattern Energy argues that
interconnection customers proposing to develop generating facilities on
land owned or managed by state, Federal, or Tribal government entities
should be required to provide evidence that they submitted any required
applications to the relevant government entity or entities in order to
advance the development of their proposed generating facility. Pattern
Energy states that such an interconnection request should provide for
an exclusive right to advance the development of a generating facility,
provided that the relevant government entity or entities allow for such
an exclusive right.\1125\
---------------------------------------------------------------------------

    \1124\ Id. at 22-23; CREA and NewSun Reply Comments at 50;
Equinor Reply Comments at 4; Hydropower Commenters Initial Comments
at 15-18; Idaho Power Initial Comments at 7; Indicated PJM TOs Reply
Comments at 31; [Oslash]rsted Initial Comments at 12-13;
[Oslash]rsted Reply Comments at 2, 4-5; OSPA Initial Comments at 18;
Pattern Energy Initial Comments at 30; rPlus Initial Comments at 3-
4.
    \1125\ Pattern Energy Initial Comments at 30.
---------------------------------------------------------------------------

    558. PJM notes that the proposed site control requirements that PJM
included in its interconnection queue reform filing with the Commission
provide some leeway for generating facilities constructed on Federal or
state lands or water, such as offshore wind projects.\1126\
Alternatively, Dominion requests that the Commission clarify that the
deposit in lieu of site control exception would apply to offshore wind
projects, in addition to other proposed generating facilities subject
to similar government control that may prevent timely demonstration of
site control.\1127\
---------------------------------------------------------------------------

    \1126\ PJM Initial Comments at 29-30, 32; see PJM
Interconnection, L.L.C., 181 FERC ] 61,162 at PP 83-105.
    \1127\ Dominion Initial Comments at 32.
---------------------------------------------------------------------------

    559. Several commenters note that certain interconnection customers
with generating facilities and interconnection facilities on land
controlled by the Bureau of Land Management (BLM) face extended time
frames for obtaining firm site control.\1128\ For example, NV Energy
states that the BLM permitting process can take between 18 months and 5
years.\1129\ Idaho Power states that BLM goes through various stages of
review, but there is no specific stage that is indicative of an
interconnection customer's request having firm site control until the
permit is in hand, which can take up to three years to obtain.\1130\
Idaho Power states that, currently, interconnection customers with
generating facilities on BLM lands typically reference the section of
the site control definition that allows for ``an exclusivity or other
business relationship between interconnection customer and the entity
having the right to sell, lease or grant interconnection customer the
right to possess or occupy a site for such purpose.'' \1131\ Idaho
Power argues that generating facilities on land managed by BLM should
have the same site control requirements as all other generating
facilities, but that they would support an expanded and/or clarified
definition of site control to capture the limitations of these
generating facilities. Idaho Power states that, for example, site
control evidence may include evidence that the necessary application
has been received by the agency, is in process, and the agency has
indicated the generating facility is permittable.
---------------------------------------------------------------------------

    \1128\ CREA and NewSun Reply Comments at 49; Idaho Power Initial
Comments at 6; NV Energy Initial Comments at 16.
    \1129\ NV Energy Initial Comments at 16.
    \1130\ Idaho Power Initial Comments at 6-7.
    \1131\ Id.
---------------------------------------------------------------------------

    560. NV Energy proposes that the deposit in lieu of site control be
used for lands that are federally managed, and that those deposits be
held until the decision record, record of decision, notice to proceed,
or right-of-way grant is issued for a generating facility, which NV
Energy notes may not be until after the facilities study due to timing
of the BLM process.\1132\ To ensure the generating facility is
progressing in the BLM process, NV Energy also proposes that the
interconnection customer be required to submit with its interconnection
request a schedule of the land rights and permitting as well as
documentation from BLM that the draft environmental assessment or draft
environmental impact statement is expected to be completed by issuance
of the system impact study. NV Energy also proposes that
interconnection customers be required to provide the administrative
draft environmental assessment or draft environmental impact statement
to the transmission provider for review and comment once BLM has issued
it to ensure its interconnection facilities are included in the right-
of-way that BLM will issue.
---------------------------------------------------------------------------

    \1132\ NV Energy Initial Comments at 17.
---------------------------------------------------------------------------

    561. CREA and NewSun encourage the Commission to modify its
proposed site control requirements, such that an interconnection
customer developing generating facilities on public lands is allowed to
proceed with the interconnection process if it can demonstrate that the
relevant public agency has received and has agreed to process the
necessary permits to develop the interconnection customer's proposed
generating facility.\1133\
---------------------------------------------------------------------------

    \1133\ CREA and NewSun Reply Comments at 50.
---------------------------------------------------------------------------

    562. For generating facilities on Bureau of Reclamation lands,
Hydropower Commenters argue that a lease of power privilege should be
considered a sufficient demonstration of site control.\1134\
Additionally, Hydropower Commenters note that generating facilities
under a certain size can obtain an exemption from Commission licensing
requirements, and they argue that an exemption from licensing should
also be considered a sufficient demonstration of site control.
Similarly, Hydropower Commenters argue that developers of pumped
storage projects on U.S. Forest Service or BLM lands should not be
required to complete the required Federal Land Policy and Management
Act process before they can be considered to have demonstrated
sufficient evidence of site control.\1135\ Hydropower Commenters
contend that such generating facilities should be allowed to
demonstrate site control by submitting evidence that they have a permit
application pending with U.S. Forest Service or BLM.
---------------------------------------------------------------------------

    \1134\ Hydropower Commenters Initial Comments at 16-17.
    \1135\ Id. at 25.
---------------------------------------------------------------------------

    563. Some commenters argue that the 100% site control requirement
should not apply to generating facilities being developed on Tribal
lands.\1136\ OSPA claims that development on Tribal land is more
challenging than other kinds of development because Tribes have three
different classes of land that have different ownership structures and
regulatory restrictions, including ``Trust'' land, which is held by the
Federal Government on behalf of Tribes and regulated by the Bureau of
Indian Affairs.\1137\ OSPA notes that Tribes' Reservations are often
``checker-boarded'' with the three different classes of land, and that
large wind generating facilities will necessarily be sited on all three
classes of land. OSPA argues that

securing Bureau of Indian Affairs regulatory approvals can take years
and that the ownership structure of ``Allotted'' lands can make it even
difficult to expediently obtain consent from all owners to lease
certain tracts, which is required as part of the Bureau of Indian
Affairs process.\1138\
---------------------------------------------------------------------------

    \1136\ OSPA Initial Comments at 16; rPlus Initial Comments at 2.
    \1137\ OSPA Initial Comments at 17.
    \1138\ Id. at 17-18.
---------------------------------------------------------------------------

    564. OSPA proposes that, for Tribes and Tribal Energy Development
Organizations, the Commission clarify that interconnection queue
positions may be secured if the Tribe has signed a lease, even if the
Bureau of Indian Affairs has not issued a final approval.\1139\
Similarly, rPlus recommends that the filing of a valid preliminary
permit application with the Commission satisfy the site control
requirement for a pumped storage project and for generating facilities
on Tribal lands.\1140\ rPlus notes that suitable pumped storage sites
are limited in availability and are increasingly located on public or
Tribal lands, which involve significant environmental review. rPlus
notes that pumped storage projects located on Federal and Tribal lands
generally cannot achieve full site control until Federal environmental
reviews are complete and the Commission issues a license. For
circumstances where a pumped storage project does not require a
Commission license, rPlus requests that the site control requirement be
only 50% of the land needed for the core generating facility.\1141\
---------------------------------------------------------------------------

    \1139\ Id. at 18.
    \1140\ rPlus Initial Comments at 2-3.
    \1141\ Id. at 4.
---------------------------------------------------------------------------

    565. Several commenters state that the proposed site control
requirements may present challenges for offshore wind projects, which
face extensive permitting timelines.\1142\ Clean Energy Associations
argue that the formal issuance of a public lease often requires
multiple preliminary stages and major financial commitments from
interconnection customers and that requiring a lease prior to entering
the interconnection queue would unduly delay generating facilities on
public lands.\1143\ [Oslash]rsted and Clean Energy Associations further
explain that the permitting process for an offshore wind farm often
involves multiple Federal and state agencies and runs concurrently with
the interconnection process. [Oslash]rsted and Clean Energy
Associations note that the permitting process can lead to changes in
the generating facility layout within a lease area, routing of offshore
cables, siting of onshore cable landing, routing of onshore cables, and
siting of the interconnection switchyard.\1144\
---------------------------------------------------------------------------

    \1142\ Clean Energy Associations Initial Comments at 33; CREA
and NewSun Reply Comments at 48; Dominion Initial Comments at 31;
[Oslash]rsted Initial Comments at 12.
    \1143\ Clean Energy Associations Initial Comments at 33.
    \1144\ Id. at 33-34; [Oslash]rsted Initial Comments at 12.
---------------------------------------------------------------------------

    566. Shell, Dominion, and CREA and NewSun argue that the high cost
of market entry for offshore wind projects is a substantial financial
commitment and that such generating facilities are by their very nature
not speculative.\1145\ Shell argues that offshore wind generation
should be able to demonstrate site control by showing evidence of
commitments to purchase offshore lease areas from BOEM, as commitments
often demand hundreds of millions of dollars.\1146\
---------------------------------------------------------------------------

    \1145\ CREA and NewSun Reply Comments at 48; Dominion Initial
Comments at 31; Shell Initial Comments at 22.
    \1146\ Shell Initial Comments at 22.
---------------------------------------------------------------------------

    567. CREA and NewSun contend that the site control requirements in
the NOPR would require an offshore developer to win a competitive
solicitation or obtain a term sheet from an off-taker before entering
the interconnection queue, which at best will add years of delay to
developing these generating facilities and at worst will kill the
proposals outright due to a lack of information on interconnection
feasibility and cost.\1147\
---------------------------------------------------------------------------

    \1147\ CREA and NewSun Reply Comments at 48.
---------------------------------------------------------------------------

    568. MISO notes that it has not interpreted its tariff to mean that
a BOEM-administered Wind Energy Area auction that an offshore wind
interconnection customer can participate in, but which will occur after
the close of an application window, is a regulatory restriction.\1148\
MISO is concerned that broadening the regulatory restriction
interpretation to allow for offshore wind to submit an interconnection
request in such instances would enable speculative interconnection
requests, which will result in withdrawals, restudies, uncertainty, and
study delays. MISO states that interconnection customers that seek to
develop a generating facility on government owned lands that are
awarded to the winner of an auction, and interconnection customers that
seek to develop a generating facility on private land, are held to the
same standard in the MISO process.
---------------------------------------------------------------------------

    \1148\ MISO Initial Comments at 55.
---------------------------------------------------------------------------

    569. Some commenters request that ``regulatory limitations'' be
more clearly defined.\1149\ CAISO expresses concern that, absent
clarification, the regulatory limitation provision will leave
transmission provider staff as adjudicators of whether obtaining site
control is possible for each proposed generating facility, and
interconnection staff are not experts on real property law or public
permitting requirements.\1150\ CAISO and Indicated PJM TOs argue that
without further clarification, the regulatory limitation provision may
be interpreted too broadly and interconnection customers could argue
site control was impossible where it was simply impractical or
expensive.\1151\ CAISO suggests, as an example, that the Commission
could limit ``regulatory limitations'' only to apply to interconnection
customers sited in offshore areas, public lands, and Tribal
lands.\1152\
---------------------------------------------------------------------------

    \1149\ APS Initial Comments at 14; CAISO Initial Comments at 17;
EEI Initial Comments at 7-8; NYISO Initial Comments at 22; PG&E
Reply Comments at 2; Indicated PJM TOs Initial Comments at 26-27;
Shell Reply Comments at 24.
    \1150\ CAISO Initial Comments at 17 & n.29.
    \1151\ Id. at 17; Indicated PJM TOs Initial Comments at 26-27,
31.
    \1152\ CAISO Initial Comments at 17.
---------------------------------------------------------------------------

    570. Several parties support the NOPR proposal to allow
interconnection customers with regulatory limitations to submit a
deposit in lieu of site control.\1153\ For projects on government
lands, Indicated PJM TOs argue that the interconnection customer should
be allowed to enter and remain in the interconnection queue, with a
deposit in lieu of site control, if they identify the steps needed to
achieve site control and show how they are exercising due diligence to
obtain a final government determination.\1154\ Indicated PJM TOs argue
that the regulatory limitations exception should be limited to just
government lands.
---------------------------------------------------------------------------

    \1153\ APPA-LPPC Initial Comments at 3-4; Cypress Creek Initial
Comments at 22; SEIA Initial Comments at 15-16; NY Commission and
NYSERDA Initial Comments at 8-9.
    \1154\ Indicated PJM TOs Reply Comments at 31.
---------------------------------------------------------------------------

    571. MISO supports such an option specifically when the
interconnection customer is prevented from obtaining site control by a
regulatory restriction that the passage of time itself will not cure
(e.g., while participating in an auction that occurs after the
interconnection request deadline can be cured by time, a requirement to
obtain an LGIA to participate in an auction cannot be cured by
time).\1155\
---------------------------------------------------------------------------

    \1155\ MISO Initial Comments at 57.
---------------------------------------------------------------------------

    572. Tri-State suggests modifying section 3.4.[1]2 of the pro forma
LGIP so that the site control for state or federally controlled land
must still be fully attained at the time of LGIA execution.\1156\ For
example, Tri-State states that in Colorado, a state land planning lease
(which does not meet the Commission's proposed definition of

site control) could be used with a financial deposit during the cluster
study process, and a state land production lease (which does meet the
Commission's proposed definition of site control) would be needed prior
to LGIA execution.\1157\
---------------------------------------------------------------------------

    \1156\ Tri-State Initial Comments at 13, 27.
    \1157\ Id. at 13.
---------------------------------------------------------------------------

    573. APPA-LPPC argue that, if the NOPR proposal is adopted, at a
minimum, the interconnection customer should be required to provide an
affidavit from a company officer, a detailed explanation, and
documentation justifying the proposed regulatory limitation exception
and to demonstrate 100% site control as soon as possible after the
generator interconnection request is submitted, and certainly prior to
the facilities study stage, as the NOPR proposes.\1158\ PPL contends
that, while additional flexibility for interconnection customers that
face regulatory limitation may be appropriate in the early stages of
review, the Commission should require that full site control be
demonstrated before proceeding to an LGIA.\1159\
---------------------------------------------------------------------------

    \1158\ APPA-LPPC Initial Comments at 20.
    \1159\ PPL Initial Comments at 16.
---------------------------------------------------------------------------

    574. A number of commenters oppose the NOPR's proposed option to
allow deposits in lieu of site control where Federal or state
regulatory limitations prohibit the interconnection customer from
obtaining site control.\1160\ Idaho Power argues that any allowance of
a deposit must be accompanied by some evidence of achieving site
control.\1161\ APS asserts that speculative interconnection requests do
not necessarily have financial limitations and extra deposits would not
act as the same deterrent as requiring 100% site control; therefore,
APS requests that the Commission not allow an exception for regulatory
restrictions.\1162\
---------------------------------------------------------------------------

    \1160\ APPA-LPPC Initial Comments at 19; APS Initial Comments at
14; Bonneville Initial Comments at 11; Idaho Power Initial Comments
at 7; Indicated PJM TOs Initial Comments at 11; Indicated PJM TOs
Reply Comments at 31; PJM Initial Comments at 26; PPL Initial
Comments at 16; Southern Initial Comments at 9; SPP Initial Comments
at 10; Xcel Initial Comments at 30, 32.
    \1161\ Idaho Power Initial Comments at 7.
    \1162\ APS Initial Comments at 14.
---------------------------------------------------------------------------

    575. OSPA argues that requiring interconnection customers that face
regulatory barriers to submit any deposits, including deposits in lieu
of site control, will create insuperable barriers to renewable energy
development by Native American Tribes and Tribal Energy Development
Organizations on Tribal lands,\1163\ stating that Tribes have limited
access to capital and face other challenges that large developers do
not share.\1164\
---------------------------------------------------------------------------

    \1163\ OSPA Initial Comments at 18.
    \1164\ OSPA Reply Comments at 12.
---------------------------------------------------------------------------

    576. A few commenters support the proposed amounts for the deposit
in lieu of site control.\1165\ MISO agrees that the proposed deposit
thresholds are sufficient, noting that the amount of the deposits under
MISO's tariff are the same amounts the Commission proposed in the
NOPR.\1166\ Tri-State contends that the proposed deposit amounts would
be sufficient to ensure advanced-stage interconnection requests are
able to continue to move toward interconnection.\1167\
---------------------------------------------------------------------------

    \1165\ MISO Initial Comments at 57; NV Energy Initial Comments
at 15; Tri-State Initial Comments at 13.
    \1166\ MISO Initial Comments at 57.
    \1167\ Tri-State Initial Comments at 13.
---------------------------------------------------------------------------

    577. Several parties support a deposit in lieu of site control high
enough to deter speculative interconnection requests that are unlikely
to achieve site control.\1168\ Avangrid argues that any deposit in lieu
of site control should be proportionate to the size of the
interconnection request, and ``reflect collateral'' while an
interconnection customer works through site control agreements.\1169\
Eversource similarly argues that the Commission should set the deposit
so that the interconnection customer fully internalizes the risk of
failing to obtain site control.\1170\ Tri-State also argues that the
deposit should not apply to interconnection study costs.\1171\
---------------------------------------------------------------------------

    \1168\ Id. at 14; Avangrid Initial Comments at 19; ENGIE Initial
Comments at 4; GSCE Initial Comments at 7; NYTOs Initial Comments at
19; Pacific Northwest Utilities Initial Comments at 3-4.
    \1169\ Avangrid Initial Comments at 19.
    \1170\ Eversource Initial Comments at 17.
    \1171\ Tri-State Initial Comments at 14.
---------------------------------------------------------------------------

    578. Some commenters provide alternative suggestions for the
deposit in lieu of site control amounts.\1172\ Longroad Energy argues
that the Commission should consider requiring that such deposits be set
as a multiple of the interconnection study deposit (such as three times
the deposit amount), rather than as a dollar amount per MW of
generating facility size, as proposed in the NOPR.\1173\ NYTOs argue
that the MW capacity of a generating facility is not necessarily
relevant to determining the appropriate deposit requirement and that
deposits should be more closely tied to the generating facility's
potential impact on the interconnection process.\1174\
---------------------------------------------------------------------------

    \1172\ Eversource Initial Comments at 17; Longroad Energy
Initial Comments at 12; NYTOs Initial Comments at 19.
    \1173\ Longroad Energy Initial Comments at 12; Longroad Energy
Reply Comments at 18.
    \1174\ NYTOs Initial Comments at 19.
---------------------------------------------------------------------------

    579. A number of entities argue that any deposits in lieu of site
control should be non-refundable.\1175\ Avangrid suggests that the
deposit be non-refundable to avoid gaming by prospective
interconnection customers.\1176\ National Grid argues that absent
circumstances outside the control of the interconnection customer, any
deposit should be non-refundable, and any security should be able to be
drawn upon in the event the interconnection customer withdraws or fails
to demonstrate site control at the required time.\1177\ National Grid
contends that if the Commission intends to permit refunds or returns of
a deposit in lieu of site control, such deposits should be provided
only after deducting the actual costs and fees, e.g., escrow account
initiation and maintenance fees, incurred by the transmission provider
or RTOs/ISOs prior to the time of the withdrawal request or the
demonstration of site control. National Grid also requests that the
Commission clarify that withdrawal penalties are separate and may be
deducted from the deposit amount.
---------------------------------------------------------------------------

    \1175\ Avangrid Initial Comments at 19; EEI Initial Comments at
8; Longroad Energy Initial Comments at 12; National Grid Initial
Comments at 23; NYTOs Initial Comments at 19.
    \1176\ Avangrid Initial Comments at 19.
    \1177\ National Grid Initial Comments at 23-24.
---------------------------------------------------------------------------

    580. Similarly, Longroad Energy suggests that to ensure that the
proper incentives exist, the Commission may wish to evaluate if a
security deposit in lieu of site control should become non-refundable
if an interconnection customer withdraws at any point in the
interconnection process or fails to achieve commercial operation.\1178\
EEI argues that the Commission can further reduce potential risks by
making deposits non-refundable, or if the Commission declines to do so,
it should ensure that withdrawal penalties are significant enough to
discourage speculative interconnection requests.\1179\ On the other
hand, NYTOs argue that regions should have the flexibility to determine
whether, under certain circumstances, deposits should become fully non-
refundable.\1180\
---------------------------------------------------------------------------

    \1178\ Longroad Energy Initial Comments at 12.
    \1179\ EEI Initial Comments at 8.
    \1180\ NYTOs Initial Comments at 19.
---------------------------------------------------------------------------

    581. Xcel argues that in addition to requiring a deposit,
interconnection customers facing regulatory limitations should be
required to provide status updates to the transmission provider, and
there should be sufficient penalties to ensure interconnection
customers provide accurate information on the

status of regulatory proceedings.\1181\ Xcel contends that, if
regulatory limitations prohibit an interconnection customer from
obtaining site control, transmission providers should be allowed to
propose constructs that facilitate interconnection, including the
ultimate achievement of site control.
---------------------------------------------------------------------------

    \1181\ Xcel Initial Comments at 30-31.
---------------------------------------------------------------------------

(c) Miscellaneous
    582. Public Interest Organizations argue that it is unreasonable
that the pro forma LGIP allows interconnection customers to propose a
decrease to the generating facility's output of up to 60% without
losing queue position while also requiring a demonstration of 100% site
control upon entering the interconnection queue.\1182\ Public Interest
Organizations also argue that the NOPR proposal to require
interconnection customers to remedy any change in site control within
10 days or have their interconnection request withdrawn is
unreasonable. In addition, Public Interest Organizations argue that it
is unduly discriminatory to allow interconnection customers proposing a
thermal project to keep their queue position by downsizing the
generating facility's turbines but not allow interconnection customers
proposing wind generating facilities to keep their queue position if
they lose part of a lease. Public Interest Organizations argue that the
cure period should be long enough to allow for routine events that
affect site control, such as the death of a landowner or the change of
ownership at a commercial facility hosting a proposed generating
facility.
---------------------------------------------------------------------------

    \1182\ Public Interest Organizations Initial Comments at 27-28.
---------------------------------------------------------------------------

iii. Commission Determination
    583. As discussed herein, we adopt in part and modify in part the
NOPR proposal to revise sections 1, 3.4.2, 7.5, 8.1, and 11.3 of the
pro forma LGIP and Appendix B of the pro forma LGIA to add more
stringency to the site control requirements and to help prevent
speculative interconnection requests from entering the interconnection
queue. We believe that, taken together, these reforms will help ensure
that commercially viable interconnection requests with demonstrated
site control or with demonstrated regulatory limitations will be able
to enter the interconnection queue, thereby reducing the negative
impacts of speculative interconnection requests.
(a) Definition and Reasonable Evidence of Site Control
    584. We adopt the NOPR proposal to revise the definition of site
control in section 1 of the pro forma LGIP with several modifications.
As modified, the definition states that site control may be
demonstrated by documentation establishing: ``(1) ownership of, a
leasehold interest in, or a right to develop a site of sufficient size
to construct and operate the Generating Facility; (2) an option to
purchase or acquire a leasehold site of sufficient size to construct
and operate the Generating Facility; or (3) any other documentation
that clearly demonstrates the right of Interconnection Customer to
exclusively occupy a site of sufficient size to construct and operate
the Generating Facility.'' Additionally, we agree with commenters'
observations \1183\ that subpart (3) of the pro forma LGIP definition
of site control proposed in the NOPR, which stated ``site of sufficient
size to construct and operate the Generating Facility,'' was
duplicative; therefore, we modify the NOPR proposal to delete this
subpart and provide clarification that all three remaining, enumerated
options to demonstrate site control require control of a site of
sufficient size to construct and operate the generating facility or
multiple generating facilities on a shared site.
---------------------------------------------------------------------------

    \1183\ See Enel Initial Comments at 82; Southern Initial
Comments at 34-35.
---------------------------------------------------------------------------

    585. To prevent multiple interconnection customers from leasing the
same site in order to remain in the interconnection queue, we adopt the
NOPR's proposed revisions to the pro forma LGIP that require an
interconnection customer to demonstrate the exclusive land right to
develop, construct, operate, and maintain its generating facility or,
where facilities are co-located, to demonstrate a shared land use right
to develop, construct, operate, and maintain co-located facilities. We
further clarify that the right to ``exclusively'' occupy the site to
develop, construct, operate, or maintain a generating facility means
both that the right belongs solely to the interconnection customer (no
other entity shares the right to use the site for those purposes), as
well as that the right is solely for purposes of a single
interconnection request. We find that an interconnection customer
securing the exclusive land right necessary to construct its proposed
generating facility (or for co-located generating facilities,
demonstration of shared land use) is sufficient evidence of the
interconnection customer's commitment to construct the generating
facility.
    586. We also modify section 3.4.2 of the pro forma LGIP to provide
that site control for a generating facility that is co-located with one
or more generating facilities on the same site and behind the same
point of interconnection must be demonstrated by a contract or other
agreement that allows for shared land use for all generating facilities
that are co-located that meet the provisions of the site control
definition. We clarify that interconnection customers are prohibited
from submitting evidence of site control that uses the same land for
multiple interconnection requests, unless the site is large enough to
host multiple generating facilities. We note that section 3.4.2 of the
pro forma LGIP that we adopt in this final rule permits shared land use
for co-located generating facilities on the same site and behind the
same point of interconnection, and we clarify below that transmission
providers have flexibility to establish appropriate technology-specific
acreage requirements for generating facilities.\1184\ Permitting
multiple interconnection requests to use the same land to demonstrate
exclusive site control would inherently result in at least one
commercially non-viable interconnection request entering the
interconnection queue and thus would be insufficient to ensure that
interconnection customers are able to interconnect to the transmission
system in a reliable, efficient, transparent, and timely manner. We
also clarify that the interconnection customer is required to meet the
technology-specific acreage requirement for its generating facility
that is publicly posted by the transmission provider at the time it
submits its interconnection request.
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    \1184\ This is consistent with the practice that several
transmission providers currently follow. See Midcontinent Indep.
Sys. Operator, Inc., 169 FERC ] 61,173 at P 48; Sw. Power Pool,
Inc., 128 FERC ] 61,114 at P 48; PJM Interconnection, L.L.C., 181
FERC ] 61,162 at P 102.
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    587. Likewise, in response to Enel, we clarify that the term
``exclusive land rights'' in the definition of site control applies
only to the exclusivity required to develop, construct, operate, and
maintain the interconnection customer's proposed generating facility;
the term ``exclusive land rights'' does not restrict multi-use
applications of the site in addition to its use for the generating
facility, such as agriculture, ranching, etc.\1185\ Similarly, in
response to Cypress Creek, we clarify that a land right does not
involve zoning approval.
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    \1185\ See Enel Initial Comments at 42.

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    588. In response to commenters,\1186\ we further clarify that the
adopted definition of site control permits an interconnection customer
to demonstrate site control with lease options, instead of executed
leases, provided that the interconnection customer is the exclusive
holder of such a lease option(s). The adopted definition explicitly
provides for such a lease option, by including the phrase, ``an option
to purchase or acquire a leasehold site.'' However, evidence of active
negotiations for a lease is not a sufficient demonstration of site
control at any time during the interconnection process. Allowing active
negotiations for a lease to serve as a demonstration of site control,
as some commenters suggest,\1187\ would allow speculative, commercially
non-viable interconnection requests to proceed through the
interconnection queue, which would be inconsistent with ensuring that
interconnection customers are able to interconnect to the transmission
system in a reliable, efficient, transparent, and timely manner.
Likewise, with respect to NRECA's request,\1188\ we clarify that this
final rule permits leases and lease options as sufficient evidence of
site control as discussed above, and transmission providers have
discretion to evaluate the content of such leases and lease options and
any conditions contained therein to determine whether they sufficiently
demonstrate site control.
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    \1186\ Omaha Public Power Initial Comments at 7; SoCal Edison
Initial Comments at 6.
    \1187\ EPSA Initial Comments at 8; Interwest Reply Comments at
13.
    \1188\ NRECA Initial Comments at 27.
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    589. Several commenters seek clarification as to whether the
proposed pro forma LGIP definition of site control would allow certain
types of generating facilities developed on lands owned or controlled
by a government entity to demonstrate site control. We agree with
commenters that offshore wind interconnection customers must make a
substantial financial commitment to win a competitive auction and
secure a lease from BOEM, and such generating facilities that have
secured a lease agreement are not speculative.\1189\ We therefore
clarify that a lease agreement with BOEM to pursue development of an
offshore wind generating facility can serve as a sufficient
demonstration of site control under the site control definition adopted
in this final rule. This clarification is consistent with our finding
above that a variety of lease options satisfy the site control
requirement. In response to MISO's concerns about allowing multiple
offshore wind interconnection customers to submit an interconnection
request for the same ``Wind Energy Area'' before it has been auctioned
by BOEM, we find that the pro forma LGIP site control definition that
we adopt herein appropriately limits such potentially speculative
interconnection requests by requiring offshore wind interconnection
customers to provide evidence of an exclusive right to develop a lease
area to satisfy the site control requirements.
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    \1189\ CREA and NewSun Reply Comments at 48; Dominion Initial
Comments at 31; Shell Initial Comments at 22.
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    590. With respect to OSPA's concerns regarding the challenges of
demonstrating site control on Tribal lands due to the nature of land
ownership on Reservations and the need for the Bureau of Indian Affairs
to approve certain leases, we clarify that under the site control
definition, interconnection customers developing generating facilities
on Tribal lands can demonstrate site control with a signed lease
agreement with the applicable Tribe-owner.\1190\ As discussed below in
section III.A.6.b.iii.b, an interconnection customer with a
demonstrated regulatory limitation, including those associated with
obtaining a lease on Tribal lands, may submit a deposit in lieu of site
control.
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    \1190\ OSPA Initial Comments at 17-18.
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    591. Similarly, in response to commenters' concerns about
demonstrating site control for hydropower projects on sites owned or
controlled by a government entity, we clarify that certain
documentation can be used to demonstrate site control under the pro
forma LGIP definition of site control. For interconnection customers
developing generating facilities at non-powered dams, we clarify that a
FERC license \1191\ can serve as a demonstration of site control under
subpart (3). However, we also clarify that neither a Memorandum of
Agreement with the U.S. Army Corps of Engineers regarding a proposed
hydropower project at a U.S. Army Corps of Engineers dam nor a
preliminary permit for a pumped storage project or other hydropower
generating facility to be located on Tribal lands would be sufficient
to demonstrate site control because we do not have enough information
in this record to determine that such documentation provides sufficient
evidence of the interconnection customer's exclusive right to occupy a
site of sufficient size to construct and operate a generating facility.
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    \1191\ A FERC license provides the licensee with the power of
eminent domain to secure property rights needed to construct and
operate the project. See 16 U.S.C. 814. While a FERC license does
not explicitly convey an exclusive right to develop a project, the
Commission does not approve more than one license for the same site.
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    592. For hydropower projects that are not subject to the
Commission's hydropower permitting jurisdiction, such as projects on
Bureau of Reclamation lands, we clarify that a lease of power privilege
can serve as a demonstration of site control under the site control
definition. Finally, for hydropower projects that are small enough to
be exempted from FERC licensing requirements, Hydropower Commenters
explain that an exemption from FERC licensing provides an exclusive
right to the recipient to develop a project at the site and the
exemption is issued in perpetuity.\1192\ Because such an exemption
includes an exclusive right to develop, we clarify that providing a
written statement as evidence of an exemption from licensing under the
FPA can serve as a demonstration of site control under subpart (3) of
the site control definition.
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    \1192\ Hydropower Commenters Initial Comments at 17.
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    593. We note NV Energy's explanation that its previous efforts to
allow interconnection customers to demonstrate site control by showing
a draft preliminary plan of development, one of the earlier required
documents in the BLM permitting process, have led to speculative
interconnection requests that slow down the interconnection
process.\1193\ We agree, and we therefore decline to adopt commenters'
proposal to modify the proposed pro forma LGIP definition of site
control to allow interconnection customers to demonstrate site control
by providing documentation indicating that they are pursuing the
necessary permits with the appropriate government entity or
entities.\1194\ As with our finding that active negotiations for lease
agreements are not sufficient to demonstrate site control, discussed
above, we find that such an expansion of the site control definition
could weaken the site control requirements included in the pro forma
LGIP and could undermine the effectiveness of this reform in helping to
prevent speculative interconnection requests.
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    \1193\ NV Energy Initial Comments at 15-16.
    \1194\ See CREA and NewSun Reply Comments at 50; Pattern Energy
Initial Comments at 30.
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(b) Site Control Demonstration and Deposits in Lieu of Site Control
    594. We adopt the NOPR proposal, with modification, to revise
section 3.4.2 of the pro forma LGIP to require

interconnection customers to demonstrate site control at the time of
submission of the interconnection request. However, we modify the
proposal and require interconnection customers to provide evidence of
90% site control for the generating facility at the time of submission
of the interconnection request and, pursuant to revised sections 8.1
and 11.3 of the pro forma LGIP, provide evidence of 100% site control
for the generating facility at the time of execution of the facilities
study agreement and when executing, or requesting the unexecuted filing
of, the LGIA.
    595. We decline to adopt the NOPR proposal to require technology-
specific acreages to be listed in the transmission provider's tariff.
As discussed below, instead, we require transmission providers to
establish acreage requirements for each generating facility technology
type and to publicly post these acreage requirements. We adopt the
following aspects of the NOPR proposal to revise sections 3.4.2 and
11.3 of the pro forma LGIP to: (1) eliminate the option to provide a
deposit in lieu of site control demonstration except in limited
circumstances where an interconnection customer demonstrates a
regulatory limitation to obtaining site control, as discussed below,
and eliminate the option to post $250,000 of non-refundable security in
lieu of site control at LGIA execution; and (2) require that
interconnection customers that could not demonstrate the requisite
level of site control at the relevant milestone of the interconnection
process (i.e., 90% for the cluster study and cluster restudy, and 100%
for the interconnection facilities study and when executing, or
requesting the unexecuted filing of, the LGIA) would have their
interconnection request deemed withdrawn and could be subject to
withdrawal penalties under certain circumstances, as discussed below.
    596. We adopt the NOPR proposal to revise sections 3.4.2, 7.5 and
8.1 of the pro forma LGIP such that, after notifying the transmission
provider of any change to the interconnection customer's site control
demonstration, the transmission provider must give the interconnection