Commissioner Rosner’s and Commissioner LaCerte’s Joint Concurrence to Order Adopting Categorical Exclusions from Tennessee Valley Authority Under the National Environmental Policy Act (CX26-1-000)

Docket No. CX26-1-000

We vote to approve the Commission’s adoption of Tennessee Valley Authority’s (TVA) categorical exclusions 16, 17, 36, 37, and 38. We write separately to note that these exclusions represent a pragmatic step toward regulatory efficiency and will reduce the administrative burden for approving activities that pose minimal or no environmental impact.  In short, consistent with our shared priorities, today’s action will get electricity to market faster in this instance by expediting the turnaround for certain approvals by the Commission.[1]  Moreover, the categorical exclusions we accept today may themselves shine an even brighter light on the Commission’s November 20, 2025 notice inviting public comment on its processes for reviewing certain post-licensing activities at hydroelectric projects under Part I of the Federal Power Act (FPA) (Hydroelectric NOI).[2]

The regulatory framework of the FPA is designed as a cohesive lifecycle for hydroelectric project development.  FPA section 10(a) establishes the “comprehensive plan” at license issuance and project inception.[3]  FPA section 10(c) thereafter imposes a continuous, affirmative duty on the licensee to maintain project works in a state of adequate repair.[4]  And, FPA section 10(b) serves as the jurisdictional gatekeeper, reserving Commission prior approval for substantial alterations or additions from the approved plan.[5]

In furtherance of the review that the Commission began in the Hydroelectric NOI, it is our hope that this Commission will continually review our existing interpretations and practices with an eye to ensuring that they do not exceed the statutory criteria outlined by Congress.  In that review, we would encourage discussion among our colleagues such that the Commission does not act in a manner that unnecessarily creates or supports undue delays for necessary investment in hydroelectric projects.  For example, when a licensee must upgrade aging turbine components with modern equivalents that improve reliability, rewind a generator, undertake routine maintenance, does our current paradigm create unnecessary delays and costs?  If so, do those delays affect grid reliability, public safety, ratepayers, and Commission resources?  Would clarifying the Commission’s interpretation of the statutory scope of section 10(b) help focus Commission resources on reviews requiring greater consideration?  Would identifying a non-exhaustive and non‑exclusive list of maintenance activities that are consistent with section 10(c) do the same?  We are eager to tackle these issues in the Hydroelectric NOI and through every vehicle available to the Commission.   

We also encourage the Commission to think more broadly. For example, we believe that the Commission should also consider whether there are certain activities at natural gas and liquefied natural gas (LNG) facilities that could be included as categorical exclusions to streamline our environmental reviews for activities that other federal agencies have found to have no significant effect on the human environment.  In that spirit, the Commission has already initiated an inquiry as to whether and how the Commission could establish streamlined procedures for certain activities at LNG facilities.[6]  And, the Commission is currently exploring whether and how it should revise its Part 157, Subpart F blanket certificate regulations to adjust cost limitations for certain projects that interstate natural gas pipelines may construct without a case-specific authorization.[7]  

We appreciate the opportunity to share these thoughts and look forward to working with our fellow Commissioners as we consider these issues that are vital to the growth and reliability of the industries and the markets that this Commission regulates.