Control Number : 42729 Item Number : 184 Addendum StartPage : 0
SOAH DOCKET NO. 473-15-0647 PUC DOCKET NO. 42729 APPLICATION OF SOUTHWESTERN PUBLIC SERVICE COMPANY TO AMEND A CERTIFICATE OF CONVENIENCE AND NECESSITY FOR A PROPOSED 230-KV LINE IN LUBBOCK COUNTY, TEXAS (WOLFFORTH TO CARLISLE) ^' ErI^. ^ VLE- D 2011 ADo - ] 4!i g. ^^ BEFORE '^ft1f5jat^(^^ ICE FtLtNG CLER^HOSStQtj OF ADMINISTRATIVE HEARINGS COMMISSION STAFF'S REPLY BRIEF Respectfully Submitted, Margaret Uhlig Pemberton Division Director Legal Division Karen S. Hubbard Managing Attorney Legal Division Ralph J. 'gne ult State Bar N. 4040755 Attorney, Legal Division Public Utility Commission of Texas 1701 N. Congress Avenue P.O. Box 13326 Austin, Texas 78711-3326 (512) 936-7348 (512) 936-7268 (facsimile) ralp.daigneault@puc.texas.gov Date: April 7, 2015 Page 1 of 10 ^^
Table of Contents Page Cover Page... 1 Table of Contents... 2 Index of Authorities... 3 1. Introduction and Summary... 4 II. Staff's Replies... 4 A. Curtis Giffith... 5 B. Duhan Family LP... 5 C. West Lubbock Land LLC... 5 D. Travis & Diane Casler... 5 E. Burgamy Development Corporation...... 6 F. Southwestern Public Service Company... 7 III. Conclusion...... 10 Certificate of Service...... 10 Staff s Reply Brief Page 2 of 10
Statutes Index of Authorities Page Public Utility Regulatory Act, TEx. UTIL. CODE ANN. 11.001-66.016 (Vernon 1998 & Supp. 2013)... Rules 4,10 P.U.C. SUBST. R. 25.101(b)(3)(B)(i)-(iv)... 4,10 Page 3 of 10
SOAH DOCKET NO. 473-15-0647 PUC DOCKET NO. 42729 APPLICATION OF SOUTHWESTERN PUBLIC SERVICE COMPANY TO AMEND A CERTIFICATE OF CONVENIENCE AND NECESSITY FOR A PROPOSED 230-KV LINE IN LUBBOCK COUNTY, TEXAS (WOLFFORTH TO CARLISLE) THE STATE OFFICE OF ADMINISTRATIVE HEARINGS COMMISSION STAFF'S REPLY BRIEF Commission Staff (Staff) of the Public Utility Commission of Texas (Commission) files its Reply Brief. In support of its Reply Brief, Staff states the following: 1. INTRODUCTION AND SUMMARY Staff continues to recommend approval of Route L because it best addresses the requirements and applicable factors listed in Public Utility Regulatory Act, TEx. UTIL. CODE ANN. 11.001-66.016 (Vernon 1998 & Supp. 2013) (PURA), and the Commission's substantive rules, P.U.C. SUBST. R. 25.101(b)(3)(B)(i)-(iv). Route L is superior to the other proposed routes because it impacts the fewest habitable structures, parallels existing transmission line Right of Way (ROW) and compatible ROW for 65% of its total length, is the fourth least expensive route, and was overwhelmingly preferred by the intervening parties.1 II. STAFF'S REPLIES TO THE FILED POST-HEARING BRIEFS With the exception of Burgamy Development Corporation (Burgamy) (on behalf of itself and Wayne Worley and Reagan Johnston et al.), all of the intervenors that filed a post-hearing brief support Route L, the route recommended by both Southwestern Public Service Company (SPS or Applicant) and Staff.Z 1 See Staff's Initial Brief at 6-12. 2 See Application of Southwestern Public Service Company to Amend a Certificate of Convenience and Necessity for a Proposed 230-KV Line in Lubbock County, Texas (Wolfforth to Carlisle), SOAH Docket No. 473-15-0647,, Initial Brief of Curtis Griffith at 3 (March 23, 2015); Application, Initial Brief SPS Wolfforth to Carlisle of Duhan Family L.P. at 1(March 24, 2015); SPS Wolfforth to Carlisle Application, Brief of Casler at 3 (March 24, 2015); Initial SPS Woobrth to Carlisle Application, Initial Brief L.L.C. at 1(March 24, 2015). of West Lubbock Land, Page 4 of 10
Staff offers the following replies to the filed post-hearing briefs. A. Curtis Griffith In support of Route L, Curtis Griffith stated that "Route L has the fewest number of habitable structures within 300 feet of its centerline, including the fewest number of newly affected habitable structures."3 While Staff also supports Route L, it did not consider "newly affected habitable structures" in its routing analysis as that category is not laid out in PURA or the Commission's rules,4 and is not considered independent of "affected habitable structures."5 B. Duhan Family L.P. No reply. C. West Lubbock Land, LLC No reply. D. Travis & Diane Casler In support of Route L, Casler stated that "Route L has the fewest number of habitable structures within 300 feet of its centerline (41), including the fewest number of newly affected habitable structures (15)."6 When comparing Route L to the modified Route Ll, Casler stated that "Route L affects only 15 newly affected habitable structures while Route L l affects 42 - that's an increase of 27 newly affected habitable structures."7 Casler also noted with emphasis that Staff's witness Kevin Mathis considered Route L the best option.8 Again, while Staff supports Route L, it did not consider "newly affected habitable 3 Griffith Initial Brief at 4. Tr. At 101. See Application of LCRA Transmission Services Corporation to Amend its Certificate of Convenience and Necessity for the Gillespie to Newton 345-KV CREZ Transmission Line in Gillespie, Llano, San Saha, Burnet, and Lampasas Counties, Texas, Docket No. 37448; SOAH Docket No. 473-10-1097, Chairman Smitherman's Memo to Commissioners Re: The Two Alternative at 3(April 22, 2010) ("In order to minimize this number, both the ALJ and the intervenors... put forth this concept of "newly affected habitable structures," and attempt to persuade the Commission to focus on this number rather than the total number of habitable structures. After much searching, I am unable to fmd a statutory or PUC rule basis for the concept of "newly affected habitable structures." In fact, none of our preceding CREZ CCN cases have used the number of newly affected habitable structures as a decision factor. Therefore, I'm unwilling to give this new concept any weight in this case"). 6 Casler Initial Brief at 4. ' Id. at 6. 8 Id. at 4. Page 5 of 10
structures" in its routing analysis as that category is not laid out in PURA or the Commission's rules,9 and is not considered independent of "affected habitable structures." 10 Additionally, when comparing alternate routes in its prudent avoidance analysis, Staff considered only the total number of affected habitable structures. l i Staff's analysis determined that Route L impacts the fewest number of habitable structures of all proposed routes.12 E. Burgamy Development Corporation In its Initial Brief, Staff states that up until that point, it had not been informed of any landowner who has made or has committed to making financial contributions to offset any incremental cost associated with alternative routes or facility configurations.13 In its Initial Brief, Burgamy notes the following: E. Peverhouse-Burgamy-MCP offer assistance to construct Route Ll and help other landowners Peverhouse Development Corporation, Burgamy Development Corporation and MCP Enterprises LLC own the land west of the substation and south of 4th Street. The north property boundary of this land is offered to SPS to make the engineering and construction of Route L 1 easier. ia Although Staff continues to recommend Route L, a party's decision to donate ROW is considered a positive factor in mitigating the cost of a proposed line. Additionally, Burgamy asserts that Staff's routing analysis failed to take into 9 Tr. At 101. 10 See Application of LCRA Transmission Services Corporation to Amend its Certificate of Convenience and Necessity for the Gillespie to Newton 345-KV CREZ Transmission Line in Gillespie, Llano, San Saba, Burnet, and Lampasas Counties, Texas, Docket No. 37448; SOAH Docket No. 473-10-1097, Chairman Smitherman's Memo to Commissioners Re: The Two Alternative at 3 (April 22, 2010) ("In order to minimize this number, both the ALJ and the intervenors....put forth this concept of "newly affected habitable structures," and attempt to persuade the Commission to focus on this number rather than the total number of habitable structures. After much searching, I am unable to find a statutory or PUC rule basis for the concept of "newly affected habitable structures." In fact, none of our preceding CREZ CCN cases have used the number of newly affected habitable structures as a decision factor. Therefore, I'm unwilling to give this new concept any weight in this case"). " Staff Ex. 1 at 30-31. 12 Staff's Initial Brief at 12-13. 131a'. at 14. 14 Burgamy Initial Brief at 7. Page 6 of 10
consideration all the benefits of Route L1.15 For example, Burgamy states that Staff's witness Mathis, "notes that the utilities give consideration to the sensitivity of routing in close proximity to schools, but then fails to mention that Route L1 eliminates the impact on the Terra Vista Middle School," and explicitly cites to Mr. Mathis' cross examination testimony in the transcript of the hearing on the merits.16 Mr. Mathis did in fact acknowledge that Route L1 would avoid the school in the following exchange: Q. (Zakrasek) Okay. And Route 1- L1 would avoid the school? A. (Mathis) Yes. Q. (Zakrasek) Thank you. 17 Staff does not contend that Route L is preferable to Route L l in every respect, or that Route L l is not a viable option. Staff does however recommend Route L after giving significant consideration to all statutory and rule criteria for all proposed routes, and finds that Route L best meets the factors contained in PURA 37.056(c) and P.U.C. SUBST. R. 25.101(b)(3)(B).18 F. SPS In its Initial Brief, SPS states that its proposed finding of fact, conclusions of law, and ordering paragraphs, "effectively incorporate the recommendations made by Commission Staff's witness Kevin Mathis concerning [Texas parks and Wildlife Department] TPWD's letter," in his direct testimony.19 The actual language used by SPS is virtually identical to the language recommended by Staff in its Initial Brief with no substantive differences.20 Staff therefore recommends the following standard mitigation language, used in Staff's Initial Brief, be used in the proposal for decision: 1. In the event SPS or its contractors encounter any archeological artifacts or other cultural resources during project construction, work shall cease immediately in 1 5 Burgamy Initial Brief at 9. 16 id. " Tr. At 98. 18 See Staff Ex. 1; Staff s Initial Brief at 8-14. 19 SPS Initial Brief at 18. 20 See SPS Initial Brief at 51-53; Staff's Initial Brief at 14-17 Staffs Reply Brief Page 7 of 10
the vicinity of the resource and the discovery shall be reported to the Texas Historical Commission (THC). SPS shall take action as directed by the THC. 2. SPS shall follow the procedures outlined in the following publications for protecting raptors: Suggested Practices for Raptor Protection on Power Lines: The State of the Art in 2006, Avian Power Line Interaction Committee (APLIC) (2006), and the Avian Protection Plan Guidelines published by APLIC in April, 2005. Also, Applicant should consult Reducing Avian Collisions with Power Lines: State of the Art in 2012. The Applicant shall take precautions to avoid disturbing occupied nests and will take steps to minimize the impact of construction on migratory birds, especially during nesting season.21 3. SPS shall exercise extreme care to avoid affecting non-targeted vegetation or animal life when using chemical herbicides to control vegetation within the ROW and such herbicide use shall comply with rules and guidelines established in the Federal Insecticide, Fungicide and Rodenticide Act and with Texas Department of Agriculture regulations. 4. SPS shall minimize the amount of flora and fauna disturbed during construction of the proposed transmission line, except to the extent necessary to establish appropriate right-of-way clearance for the transmission line. In addition, SPS shall revegetate using native species and shall consider landowner preferences in doing so. Furthermore, to the maximum extent practicable, SPS shall avoid adverse environmental impacts to sensitive plant and animal species and their habitats as identified by TPWD and the U.S. Fish and Wildlife Service (USFWS). 5. SPS shall implement erosion control measures as appropriate. Also, SPS shall return each affected landowner's property to its original contours and grades unless otherwise agreed to by the landowner or the landowner's representative. Applicant shall not be required to restore original contours and grades where different contour or grade is necessary to ensure the safety or stability of the project's structures or the safe operation and maintenance of the line. 21 While Mr. Mathis did not directly discuss the 2012 update, it was recommended in the letters by TPWD. See Staff Ex. I at 44 (Attachment KM-3); SPS Ex. 1, Attachment 1(Environmental Assessment), Appendix A. Staffs Reply Brief Page 8 of 10
6. Applicant shall use best management practices to minimize the potential impact to migratory birds and threatened or endangered species. 7. SPS shall cooperate with directly affected landowners to implement minor deviations in the approved route to minimize the impact of the transmission line. Any minor deviation to the approved route shall only directly affect landowners who were sent notice of the transmission line under P.U.C. PROC. R. 22.52(a)(3) and shall directly affect only those landowners that have agreed to the minor deviation, excluding public ROWs. 8. SPS shall be permitted to deviate from the approved route in any instance in which the deviation would be more than a minor deviation, but only if the following two conditions are met. First, Applicant shall receive consent from all landowners who would be affected by the deviation regardless of whether the affected landowner received notice of or participated in this proceeding. Second, the deviation shall result in a reasonably direct path towards the terminus of the line and not cause an unreasonable increase in cost or delay the project. Unless these two conditions are met, this paragraph does not authorize SPS to deviate from the approved route except as allowed by the other ordering paragraphs in the Order.22 It should be noted that SPS incorrectly identifies23 the respective increases in total cost from Route L to Route L1 and Route L to Route L2.24 Route L1 would increase the total cost of Route L by approximately $506,000.25 Route L2 would increase the total cost of Route L by approximately $1,656,000.26 22 Staff Ex. 1 at I 1-12. 23 SPS has indicated it is aware of the errors and will address them in a subsequent filing. 24 SPS Initial Brief at 16, 21. 25 Staff's Initial Brief at 11-12. 26 id. Page 9 of 10
III. CONCLUSION Staff recommends Route L because it best meets the factors contained in PURA 37.056(c) and P.U.C. SUBST. R. 25.101(b)(3)(B). Route L is superior when compared to the other 14 proposed routes: Route L impacts the fewest habitable structures, parallels existing transmission line ROW and compatible ROW for 65% of its total length, is the fourth least expensive route, and was overwhelmingly preferred by the intervening parties. reasons discussed above, Staff recommends selection of Route L. For all the SOAH DOCKET NO. 473-15-0647 PUC DOCKET NO. 42729 CERTIFICATE OF SERVICE I certify that a copy of this document was served on all parties of record on April 7, 2015, in accordance with P.U.C. PROC. R. 22.74. Ralph0'a t Page 10 of 10