Save the Ozarks (STO), a group granted intervener status in the certificate of environmental capability and public need (CECPN) proceeding for Southwestern Electric Power Company’s (SWEPCO) Shipe Road to Kings River project, not only has failed to prove that the project’s need was not established, but has only managed to regurgitate already refuted arguments, according to the Southwest Power Pool, SWEPCO and Arkansas state regulatory staff.
SWEPCO and SPP both demonstrated the project’s necessity in order to relieve reliability risks and meet minimum reliability requirements in Benton and Carroll counties in Arkansas, SPP said in a March 28 filing (Docket No. 13-041-u).
“The need was established in the Ozark Transmission Study and the 2007 SPP Transmission Expansion Plan, as evidenced by the notification to construct that SWEPCO relied upon in its application,” SPP said.
The Arkansas Public Service Commission (PSC) approved the Shipe Road to Kings River project on Jan. 17. Save the Ozarks’ basis for its March 18 request for rehearing of the approval pivoted on an Arkansas law that, according to STO, mandates that environmental permits be submitted to the regulatory commission so that the commission can include them in its deliberation of the project application. STP’s petition quoted testimony submitted to the commission to the effect that the company had not yet obtained these permits, and did not intend to obtain them until after the commission issued a decision on the application.
“SWEPCO has intentionally not applied for, obtained, or submitted to the commission several such permits including Army Corps issued River and Harbors Act Section 10 permits and Army Corps issued Section 404 CWA permits,” STP said in its petition for rehearing on March 18. “Because SWEPCO has not yet obtained these required permits and has not submitted such permits for review by the commission, SWEPCO has not complied with Arkansas Code § 23-18-519(b)(4) and SWEPCO’s non-compliance precludes the commission from complying with its obligations under Arkansas Code § 23-18-519(b)(4). Consequently, the commission should have denied SWEPCO’s application. Its failure to do so is contrary to law.”
Both commission staff and SWEPCO in their separate March 28 responses to the petition for rehearing said that Arkansas law does not require that all environmental permits be obtained before seeking a CECPN, and that STO has misconstrued the law.
“On its face, the statute says nothing of the kind; neither does precedent or practice make such a requirement,” SWEPCO said. “The plain language of the statute requires that environmental permits be ‘considered’ along with ‘other pertinent considerations’ in the APSC’s own analysis of whether the environmental impact is ‘acceptable.’ There is no CECPN requirement that permits be first obtained for all routes being considered.”
Furthermore, SWEPCO argued, obtaining permits for the six routes under consideration would be a waste of state and federal manpower and resources when only one route will be approved.
Both staff and SWEPCO said that the burden of proof that the need for the project was not established rested with STO, which failed to meet it. They further noted that the interpretation that STO has sought to apply to the Arkansas law has been fully argued and refuted during the project application proceedings.
“[T]he commission determined that the plain language of Ark. Code Ann. § 23-18-519(b)(4) does not require an applicant to first ‘obtain’ necessary permits before the commission may grant a [CECPN] application,” staff said. “STO, however, argues against this plain reading of the statute insisting instead, that when the legislature mandated the commission ‘consider’ permits, it was actually mandating that the applicant ‘obtain’ the permits prior to filing the application. STO’s conclusion is contrary to the plain language of the statute and nonsensical.”
STO initially requested intervener status in the project application proceeding in order to represent potentially affected landowners, but was granted intervener status by the Arkansas PSC insofar as the group furthered the purposes of environmental conservation and protection.
The group is not the only source of resistance to the project. Missouri lawmakers have proposed legislation that restricts utilities’ power of eminent domain as well as restricts regulators’ authority to approve a project when it originates and terminates in a state other than Missouri.
The Shipe Road to Kings River project is a 56-mile, 345-kV transmission line connecting the new Shipe Road substation in Centerton, Ark., and a new Kings River substation in Berryville, Ark. The project would cross into Missouri and run for 25 miles on the Missouri side of the Arkansas-Missouri border.
The project is estimated to cost $123.3m, which includes line construction, right-of-way acquisition, and construction of the new substation.