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May 4, 2001

POWER GRAB
Landowners, utilities wrangle over rights-of-way

By Lana Robinson
Field Editor

Part I of a two-part series

Thanks to the government's commitment some 60 years ago to bring electricity to rural areas of Texas–when it would have been unprofitable for private providers to have done so–people in even the most sparsely populated recesses of the state were extended service. Landowners were willing to grant rights-of-ways and easements to deliver this miracle power to citizens all across Texas. In the years since, farmers and ranchers have sacrificed land to the detriment of their properties' value and for very little compensation, to accommodate power companies and other public utilities and pipelines. Now, with the rush to implement electrical "choice" in the Lone Star State, some 30 power plants are planned, or under construction, and with them, a rash of new transmission lines. Sadly, respect for those being asked to give up private land for the public good has eroded to the point that some utility providers have departed from the practice of routing lines along fence rows and/or using existing rights-of-way where possible. This is especially problematic in a state where 97 percent of the land is privately owned.

Earlier this year, State Representative Judy Hawley (D-Portland) sponsored a bill, backed by the Texas Farm Bureau, which would put into law the common courtesy provisions requiring utility companies to strive for routings that are the least intrusive to landowners granting these rights-of-ways. Although the bill has philosophical support, Gary Joiner, Texas Farm Bureau associate legislative director, said investor-owned utility companies' opposition to the measure recently stalled the bill in committee.

"We haven't totally given up on the bill. It's possible we could attach it to some other legislation that is moving, but there probably isn't enough time to do anything more this session. And we aren't interested in amending it because the suggested language from the utilities does not meet our policy objective," Joiner reported on April 23.

Joiner noted that, to their credit, South Texas Electric Cooperative testified in support of the Hawley bill and the landowners.

Proponents of the transmission line argue that it is one of several investor-owned projects making up the necessary infrastructure to bring competition and lower utility rates to Texas consumers.

Landowners in Karnes and Goliad counties had urged the legislation when it was learned in 1999 that Central Power & Light (CPL) planned to build a 52-mile transmission line from their generation plant at Coleto Creek, in Goliad County, cutting across their farms to a substation at Pawnee, in Karnes County. Henry Miller of Kenedy spearheaded a landowner coalition to challenge CPL during the permitting process to show the need for taking new land for the proposed line. Especially troubling to Miller and others was the fact that CPL wanted to cut a totally new path rather than using a nearby, existing right-of-way which already dissects Miller's and many fellow intervenors' properties. And unless something changes, the PUC is going to allow it.

"Using an existing route rather than taking new land is a stated policy of the Public Utility Commission. They also have guidelines that say they (utility companies) should not cross a property diagonally. Yet, this line cuts through 97 properties and 67 are crossed diagonally. I am very, very disappointed in PUC. They, as CPL, say what should be said, but don't do what should be done," said Miller. "I understand eminent domain. If the public interest is greater than mine as a property owner, I must yield. But this is a private, for-profit company."

District 12 Texas Farm Bureau Director Zackary X. Yanta of Runge owns property in Goliad County which is also in the line of fire.

"My grandfather bought it in the early 1920s. We ranch, and we have a little farm land. The proposed site they have it going through is some brush I use in the winter time for my cattle to calve. It's good shelter for the cattle and lots of wildlife. There is an existing, pretty good size power line going through our land already, built by South Texas Electric Coop. Now CPL has plans for a mammoth tower, maybe 100 feet tall. They have not followed procedures or the rules and regulations in getting permits and permission from landowners. They tried to steamroll right over the landowners. That got my dander up, when they came out here to try to survey. They have shown almost a total disregard for anyone's private property," said Yanta, noting that the boards of directors of both Goliad and Karnes County Farm Bureaus had drafted resolutions in support of the landowners' position and consistent with Farm Bureau policy favoring the use of existing rights-of-way.

In a letter to the PUC commissioners last October, Texas Farm Bureau President Donald Patman expressed the farm organization's concern regarding the potential for damage to the state's agricultural land by the design, placement, construction, and operation of electric transmission lines.

"Decisions by the Public Utility Commission of Texas have the effect of allowing companies seeking to build transmission lines to exercise the power of eminent domain. The PUC should not authorize the use of this power to take agricultural land without establishing through specific evidence and proof that there is an urgent and overriding need for the land that is more important than future production of food and fiber," Patman warned. "Consistent with this policy, the PUC should require that utilities route transmission lines along existing rights-of-way. In addition, before authorizing the use of eminent domain to take cultivated land, the PUC should require the utilities to show that there is no alternative to placing the transmission line on the agricultural land. It is the understanding of Texas Farm Bureau that the PUC's past decisions regarding proposed transmission lines were consistent with this policy. Texas Farm Bureau is concerned that current and future decisions regarding proposed transmission lines threaten this policy."

John Poldreck, who farms between Choate and Charro, said all his hard work in concert with the Soil Conservation Service in trying to establish a wildlife program on his property will be out the window if the new power right-of-way comes through—and with it, his goal of making extra money with deer, quail and turkey.

"This line is going to destroy the back 100 acres of this program. There is a penalty for us, as landowners, if you destroy or get out of guidelines in this program. What I want to know is how come CPL and utilities are able to get away with it? We're the landowners and taxpayers and now, instead of using the existing rights-of-way, they want to come in here and destroy our program. They want to cut a whole new path through my land, which is right on the San Antonio River bottom," said Poldreck, adding that it will also run smack dab through the middle of his neighbor's 300-acre corn and cotton fields, which he describes as "prime farming land, some of the best anywhere."

If the controversial transmission line is built, it will be on the order of the largest power line that can be built in Texas.

"PUC is letting them use the large, lattice-type towers. The towers can be 170 feet tall, which is the equivalent of the average 11-story building," said Henry Miller. "The PUC expert, supposedly in charge of this project, put in written testimony that these towers would be placed to be hidden from view from roadways and residences. I'm thinking about having a contest to see who can hide one of these 170-foot towers. That's what a land-owner's up against_this kind of absurdity."

Although the utility companies and PUC say they are very concerned with the cost in building the lines, Miller wonders why they refuse to consider monopole construction, which, according to former PUC Commissioner Jo Campbell's testimony in the permit hearing, is cheaper and is being used by South Texas Electric Cooperative to build the other end of the same line.

Poldreck had the answer.

"I asked them couldn't they at least use the monopole? They said, `No. We already have the material bought for these big-four-legged towers," he said.

Marceline Reed, who inherited 125 acres, with 40 acres in cultivation, on Texas 72 west of Kenedy towards Pawnee, dreamed of passing the land on to her son and grandsons, but says the gargantuan towers on the proposed line will ruin the best sites for building homes.

"My house is too close to that line. They're wanting to put the new one the entire length of my place, inside the fence all the way down. What bothers me, there's already a right-of-way a mile before getting to my house. If they build this one, there will be two eyesores," says Reed, who was in Austin for the five days of testimony in the first hearing a year ago this spring.

What's even more frustrating to Reed and other affected property owners is that an administrative law judge (ALJ) agreed with them in that hearing last year that CPL had failed to prove need when applying for the permit and recommended to the PUC that the permit be denied.

Zachary Yanta recalled, "When they applied for the permit, CPL said they needed it to deliver power to an area south of here for Texas. In the meantime, they built a plant in the Rio Grande Valley and had plenty of power. In the hearing process, it was discovered they were planning to sell surplus power to Mexico through this line."

Despite the fact that justification for the line as described in the permit application was no longer relevant, which led to the ALJ's ruling that CPL failed to prove need—a requirement for a line that is not deemed critical by the PUC, as is the case with the proposed transmission line—the three PUC commissioners disregarded the ALJ's decision and approved the application. But not without misgivings by at least one commissioner. Former PUC Chairman Pat Wood III, who was recently appointed by President George W. Bush to the Federal Energy Regulatory Commission (FERC), in his concurring statement, wrote:

"I am concerned about the process used by CPL in this application to determine the routing of the line. As I discussed in the open meeting when this docket was taken up for the first time, transmission utilities should weigh the use of existing rights-of-way much more heavily than CPL and its consultant did in this case. The weighting factor apparent from the consultant's report in evidence is too low for this purpose. In future applications, I suggest that use of existing rights-of-way be a principal and heavily-weighted factor in determining routing.

"In a related concern, all of the northern routes were removed from further consideration by the consultant because of issues near the easternmost interconnection point. Unfortunately, the northern routes were those that have the greatest overlap with existing rights-of-way. CPL should have explored more ways to resolve these issues.

"The robust growth in Texas electricity demand combined with the lack of investment in new transmission facilities over the past decade means that more transmission projects will be before this Commission in coming years. It is incumbent on transmission utilities to accommodate landowners to the maximum extent possible in this effort, while being care ful to minimize right-of-way acquisition costs that must be borne by customers. Utilization of existing rights of way is a good way to accomplish both of these goals."

Still, Wood's admonition does little to help the current situation.

"We fully expect the PUC will ignore our final request for a rehearing," said Miller, indicating that he and several intervenors have hired lawyers and intend to appeal a dissenting opinion. "They may have done everything right until this application, but on this one, they've done everything wrong."

(Part II will focus on landowner recourse and the concept of annualized payments to property owners for the continued use of their land in the form of a right-of-way by which investor-owned utilities are earning profits.)