APSC's SWEPCO ruling stands; Route 109 approved as opposition in two states stays strong

Tuesday, February 25, 2014 ~ Updated 1:49 PM
Route 109

LITTLE ROCK -- The commissioners of the Arkansas Public Service Commission have effectively handed off to Missouri the decision of whether Southwestern Electric Power Co. will be allowed to construct some 50 miles of 150-foot-tall 345,000 Volt transmission lines through portions of Benton and Carroll counties.

And Missouri isn't lying down quietly, according to all indications.

The APSC commissioners chose to remain silent through the deadline for a decision early this week, meaning that the ruling of APSC Administrative Law Judge Connie Griffin recommending that SWEPCO's plans be approved and Route 109 be used now becomes the commission's final decision. The commission had the options of doing nothing and allowing the judge's ruling to stand, altering her ruling, or throwing it out altogether and forming a new one. They chose the former.

Griffin on Jan. 17 filed Order No. 32, giving SWEPCO the go-ahead to construct its 345 kV transmission line from the Shipe Road station in Benton County to the proposed Kings River station, northwest of Berryville off Highway 143.

Of the six routes SWEPCO proposed for running the line, Griffin recommended Route 109, which runs from the Shipe Road station north, into Missouri for about 25 miles, and then back into Arkansas, through Carroll County -- running just north of Eureka Springs and crossing below Holiday Island near the intersection of Arkansas Highways 187 and 23 -- to the Kings River station.

Order 32 also gives permission for SWEPCO to construct the Kings River station. The estimated cost to construct the transmission line for Route 109 is $102.84 million and the Kings River station construction costs, $20.44 million, for a total of $123.28 million.

SWEPCO issued a statement in reply to Griffin's order, saying the company is "pleased that the administrative law judge has confirmed the need for the transmission project and selected a route for the facilities."

SWEPCO will now need to start the process to get approval from the Missouri Public Service Commission since part of the approved route is in the state. Additionally, SWEPCO is currently only authorized to do business in Arkansas, Texas and Louisiana -- not Missouri.

"We will start the process needed to complete the Missouri portion of the route," SWEPCO said in its statement.

RESISTANCE TO THE NORTH

As of early this week, SWEPCO had not filed any paperwork with the Missouri Public Service Commission, officials there said.

Missouri residents and officials are lining up in opposition to SWEPCO's plans to route its proposed transmission line through McDonald and Barry counties in the state's southwest region.

Lawmakers there already have been actively opposing Route 109's approval, filing several bills that, if passed, would block the MPSC from approving any of SWEPCO's requests for approval and/or would block SWEPCO from being able to obtain the land it needs via eminent domain.

Missouri state Rep. Scott Fitzpatrick, who represents the southwest part of the state, introduced HB 1622 a few weeks ago. If passed, it will remove from the Missouri Public Service Commission the authority to approve any power lines in McDonald and Barry counties that originate and end in Arkansas and that serve no customers in Missouri.

Fitzpatrick confirmed that the bill was written to specifically target SWEPCO's Route 109, which follows a 56-mile-long path, entering Missouri in McDonald County and exiting in Barry County, near Seligman, thus bypassing Arkansas' Pea Ridge, Gateway and Garfield in Benton County.

He said another bill has been filed now in both the state House and Senate in Missouri to oppose Route 109 on a different front: the sticky issue of eminent domain. Fitzpatrick explained that he and others are concerned that SWEPCO may be able to get around obtaining MPSC permission since the utility has no customers within the state and since the Route 109 proposal does not require any power stations or other facilities to be built -- other than the 150-foot-tall power poles erected every 600-800 feet that would require clearing a 150-foot right-of-way.

"We're doing everything we can on our end," Fitzpatrick told the Lovely County Citizen. "I can't say much more about the second piece of legislation because we're still doing research, but we think between the two bills, we can stop this thing."

Any entity seeking approval to build power facilities in Missouri must obtain a certificate of convenience and necessity from the MPSC; SWEPCO had not yet applied for that nor had it filed a notice of intent to file or anything else for that matter, a MPSC spokesman said Monday.

Once the notice of intent has been filed, SWEPCO then has 60 days to file its application with the MPSC; then the commission would set a deadline for intervening parties to participate and potentially set dates for public hearings.

Missouri law does not specify how long the commission has to issue a ruling on SWEPCO's application, but once it it does rule, the commission's decision can be appealed in court, much like in Arkansas.

SWEPCO has not held any public hearings there nor has it notified any of the Missouri residents who would be affected by Route 109.

STO KEEPS FIGHTING

Meanwhile, back in Arkansas, opposition group Save The Ozarks is not relying on Missouri to block SWEPCO's plans.

"We are taking all the steps necessary to challenge the administrative law judge's ruling before the commission," Pat Costner, director of STO, said. "If needed, we will appeal any adverse commission decision in court."

"We really feel like the judge made the wrong decision," Doug Stowe of Save the Ozarks told the Lovely County Citizen.

According to Stowe, SWEPCO's opposition has 30 days after the APSC decision is finalized to apply for a rehearing. An appeal with the Arkansas State Court of Appeals can be filed within 30 days of the date of the rehearing is decided by the APSC, or, if no decision is taken, within 30 days of the application for the rehearing.

"I believe we have excellent grounds for that appeal," Stowe said, citing the environmental study done on the area. "There's a very strong likelihood that we'll be successful."

Costner had some advice for local residents opposed to the SWEPCO plans:

"We will, of course, appeal this commission's approval of SWEPCO's proposal. In the interim however, there are steps that all of us who are on Route 109 need to take," Costner told the Citizen. "The first step is to go to the STO website, www.SaveTheOzarks.org, download and complete the 'no trespass' letter and send it by certified mail to the people identified in the letter. The second step is to be sure that everyone on Route 109 understands that, if they are approached by a SWEPCO land agent, their interests are best served if they speak with the agent only in the presence of their own lawyer."

STO will post a fact sheet on eminent domain on its website in the next day or two, she added.

March 17 is the deadline for intervenors such as Save The Ozarks to apply for a re-hearing with the APSC. STO is planning to do so and its leaders say they believe that because of inconsistencies and omissions in written and oral testimony -- particularly regarding the Environmental Impact Study -- approval for a re-hearing is a strong possibility.

Once the commission issues its final ruling, opponents have 30 days to petition the Arkansas Court of Appeals to review the ruling. The likely deadline for that petition is March 17, said Costner with STO.

A decision from the Court of Appeals would likely come by this fall. If opponents still are unhappy with the ruling, it can then be appealed to the Arkansas Supreme Court, the final decision-makers in cases such as these.

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