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OAH 15-2500-20599-2
PUC No. E-002/TL-09-38
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STATE OF MINNESOTA
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
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In the Matter of the Application for a High Voltage Transmission Line Route
Permit for the Hiawatha Transmission Project
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ORDER ADDRESSING HENNEPIN COUNTY’S
EVIDENTIARY MOTION DATED OCTOBER 19, 2009
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On October 19, 2009, Hennepin County
filed an Evidentiary Motion requesting an order addressing two issues: that the ALJ accept testimony on, and make
findings on, whether the added costs of placing the proposed transmission line
underground (undergrounding) should be treated as standard facility or special
facility costs; and that the ALJ find that the Commission lacks jurisdiction to
make rulings or factual findings on the issue of Applicant’s right of eminent
domain on government property, and that the ALJ shall not admit evidence on
that issue. By letter dated October 20,
2009, the parties were notified that they had until November 3, 2009, to file a
response to Hennepin
County’s Motion.
Responses were filed by the Applicants, City of Minneapolis and Midtown Greenway Coalition.
For the reasons set forth in the accompanying Memorandum, incorporated
herein,
ORDER
IT IS HEREBY ORDERED:
1.
Hennepin
County’s motion that the
ALJ accept evidence and make findings concerning the added costs of placing the
proposed transmission line underground is GRANTED. The parties may present evidence and legal
argument concerning the appropriate treatment of the proposed transmission line
as a standard facility or special facility, and the effect that such treatment
may have on the relative merits of each alternative.
2.
Hennepin
County’s motion for a
determination that the Commission lacks jurisdiction to make rulings or factual
findings on the issue of Applicant’s right of eminent domain over public
property, and that the ALJ shall not accept evidence related to that issue is GRANTED
IN PART and DENIED IN PART. The ALJ will
not make a recommendation concerning the Applicant’s power to condemn publicly-owned
property, but the parties may offer evidence and legal argument on the impact
that each alternative may have on the pre-existing use and planned future use
of public property. A record that
includes evidence and the respective positions of the parties on whether the
Applicant’s proposed use will interfere with another public use may aid the
Commission in issuing a route permit.
Dated: November 13, 2009
s/Beverly
Jones Heydinger
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BEVERLY JONES HEYDINGER
Administrative Law Judge
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MEMORANDUM
Hennepin County’s motion addresses two issues
that may affect the selection of a route for the Hiawatha Transmission
Project. The first issue is how the increased
costs of placing the high voltage transmission line (HVTL) underground will be characterized,
who will pay for that increase, and how those determinations may affect the
selection of a preferred route. The
County asserts that the treatment of the HVTL as a standard facility capital
cost, spread across all ratepayers, or as a special facility, with a surcharge
assigned to local residents and businesses, should be considered in determining
the most appropriate route.
The City of Minneapolis and the
Midtown Greenway Coalition agree that the treatment of the costs is relevant to
the route selection. The City contends
that its evidence will show the effect that undergrounding will have on the human
settlement and public health and safety, as contemplated by Minn. R. pt. 7850.4100
A. and B,
and that the costs to the property owners are relevant to painting the full
picture of these effects. Under both the
Minnesota Environmental Policy Act and the Minnesota Environmental Rights Act,
the Commission must take into account the possible impairment, pollution, or
destruction of the air, water, land, or other natural resources and select a
feasible and prudent alternative consistent with public health, safety and
welfare. Economic considerations shall not be the sole
determinative, but Hennepin County, the City of Minneapolis and the Midtown Greenway
Coalition all assert that the treatment of the costs is a key component of that
determination.
The Applicant also
agrees that the record should include evidence of all costs, and that it is
appropriate to include findings and a recommendation on the appropriate
treatment of those costs, for final determination by the Commission. The Applicant agrees that the treatment of
the costs may effect the route selection.
It should be noted that the Applicant’s response states that, to date,
it has taken no position in this proceeding on the how the costs should be
allocated or treated under its tariff.
It is
appropriate to fully consider the costs, and the appropriate treatment of them,
along with each of the other criteria, in the selection of the route. The Commission will benefit from a complete
record that fully sets forth all of the effects of each alternative, including
the effect that the treatment of the costs may have. Moreover, as pointed out by the Midtown
Greenway Coalition, in issuing a permit for a HVTL, the Commission shall
specify the design and route and also impose other conditions that it deems
necessary,
which could include a determination of the cost allocation. Thus, evidence of the costs of undergrounding
and the appropriate allocation of those costs will be admitted in this
proceeding.
In the second
part of its motion, Hennepin County asserts that the Commission lacks
jurisdiction to decide whether the Applicant has eminent domain authority over
public property, and should not “make rulings or factual findings on the issue
of Applicant’s right of eminent domain on government property with a prior
inconsistent public purpose and that the ALJ [should] not admit evidence on
that issue.” The City of Minneapolis
agrees with Hennepin
County. Midtown Greenway Coalition takes a slightly
different position, that the ALJ should not recommend, and the Commission
should not order, a route that is inconsistent with the current public use of
land.
The Applicant agrees
that the Commission does not have the authority to condemn any particular piece
of property, but that the Commission does have the exclusive jurisdiction to
decide the route for the HVTL. To make
that decision, the Commission must analyze the impact of the new facilities on
the existing and future land uses of each of the route alternatives.
Hennepin County is correct that eminent domain
proceedings, including resolution of potentially conflicting public uses, must be
conducted in the manner prescribed in Minnesota Statutes Chapter 117, which
requires that an action be filed in state district court. Thus, the ALJ agrees that it is inappropriate
to make a recommendation regarding the Applicant’s ability to condemn publicly-owned
property. However, the Commission will
benefit from a full record that lays out all of the evidence about each
alternative, including whether the alternative is incompatible with any
existing or anticipated future use.
Among the criteria to be considered are “effects on human settlement,
including, but not limited to, displacement, aesthetics, cultural values,
recreation, and public services.” Moreover, the Commission must also consider,
among the criteria, the “use of existing transportation, pipeline, and
electrical transmission systems or rights-of-way,” “adverse human and natural
environmental effects which cannot be avoided” and “irreversible and
irretrievable commitments of resources.” Thus, the record should be developed to
assure that the Commission is fully informed about the impact of each route
alternative. If, in that process, one or
more parties argue that the proposed alternative is incompatible with another
public use, those arguments will be fully considered in the route selection.
Developing a
full record does not confer jurisdiction where the Commission has none, but it
does assure that the Commission fully understands the benefits and
disadvantages of each alternative.
B. J. H.