PUCT defers decision on relocation of Pedernales transmission line

Comments of State Rep. Erin Zwiener

Representative Zwiener noted that this issue was first brought to her attention in 2019, after which she filed a letter with the PUCT. She reiterated her concerns about the impact of the voluntary relocation of this transmission line on a community in Driftwood. She stated that impacted homeowners have not had any say in this process, have not been given the usual opportunity to voice their concerns and it would set a dangerous precedent for all future routing cases, creating a loophole that would allow an approved route to use a technical opportunity to move it to another route and impact more homeowners. Representative Zwiener requested that the PUCT require PEC to amend its CCN to ensure that the relocation of the transmission line is executed so that the affected parties are granted due process.

Oral Argument

Homeowner Doug Crosson opposed the rerouting of the transmission line from 900 feet from his house to 200 feet, adding that PEC had not gone through the process of amending its CCN. He noted that burying the line had been part of settlement discussions but it turned out that analysis has only just begun.

Acknowledging that Mr. Crosson is “pro-growth,” Commissioner McAdams asked Mr. Crosson where he would “draw the line” for triggering a “full blown CCN process,” to protect basic property rights.

Mr. Crosson replied that “routine activities” in the relocation exception are not the same as a “major project,” suggesting that moving a transmission line to within 300 feet of multiple homes is not routine but in fact rerouting.

Trish Lebo addressed community values, historical and aesthetic values, and environmental integrity, adding that, being there first, the homeowners right to the “spectacular views” advertised by the golf course should be protected. She urged that the transmission line be installed underground.

Bo Lebo discussed the real estate developer, Discovery’s, self-proclaimed cultural and environmental benefits, which he asserted were not reflected by this development.

Linda Crosson requested that the PUCT not allow the rerouting of the transmission line or at least require PEC to follow the CCN process. She suggested that the rerouting would have significant negative environmental, aesthetic and property value impacts.

Brian Tolga noted that one of the reasons he had chosen to live in the Rim Rock development was because it’s electricity service was buried, preserving the topography of the landscape. He suggested that PEC started on the wrong foot by providing notification rather than due process. Mr. Tolga noted that positive interactions had occurred until PEC and Discovery went “radio silent,” which seemed odd and led to a group of homeowners submitting a memorandum of understanding, which was not responded to. The next thing that happened was PEC’s filing with the PUCT of a request for a ruling.

Attorney Patrick Reznik, suggested that this is not a hard case because the transmission line is being proposed to be moved to within 300 feet of homes. Mr. Reznik noted that the PUCT has the authority to determine whether a CCN is required but this case does not include a finding that the PUCT has done so.

Evan Johnson, representing PEC, informed the Commission that this relocation request was received in 2018 and, when the complaint was filed in 2019, PEC acted as an arbiter to try to get the landowners to reach an agreement, adding that, being entirely within the bounds of the developer’s property, PEC sees this as a private dispute between private landowners. Mr. Johnson noted that PEC agrees with the PFD, that the relocation request complies with the relocation exception rule and there is no exception in the rule for the proximity of neighboring habitable structures.

Mr. Johnson informed the Commission that in January 2022 PEC received a communication from the developer informing them that they would be moving ahead with either an overhead or underground transmission option. PEC informed the developer that this proceeding needed to move forward in order to determine a schedule for meeting their timeline.

Mr. Johnson noted that this process has been going on for almost 4 years and PEC is trying to comply with the rule, not do an “end run around the CCN process.”

Commissioner Glotfelty asked if moving the line would cause any reliability impacts due to it being out of service.

Mr. Johnson was not aware of any reliability issues.

Commissioner Cobos asked if PEC had visited with any of the other homeowners and whether undergrounding was still being considered.

Mr. Johnson replied that all homeowners had been noticed and many had intervened in the proceeding. He noted that Driftwood was still considering undergrounding but had been taken aback by the magnitude of the additional cost.

Staff agreed with the PFD but noted, while not necessary for a decision in this case, they would be happy to reopen the rulemaking if the Commission desired.

Open Meeting Discussion

Chairman Lake suggested that this “does not fit neatly within the existing CCN rule, being a very gray area.” He was encouraged by the possibility of ongoing settlement discussions.

Commissioner Cobos noted that there are a lot of rules and precedent at play here. She suggested that a strict reading of the rule would require no CCN amendment. She noted that we are in a rapidly growing state and these issues will be coming up more in the future. Commissioner Cobos noted the need to strike a balance between economic development and property rights. The commissioner suggested that there is precedent in an Oncor case, which is consistent with the PFD.

Commissioner Cobos noted that, while she understood the concerns and the need to strike a balance, there are no disputed facts in the case. She suggested that, despite the Commission’s broad authority, they would be granting an exception to an exemption, something that is “tricky from a policy standpoint.”

Commissioner Glotfelty noted that he would lean toward requiring a CCN proceeding in this instance. As a former transmission developer, he noted that having a dialogue with the community around a proposed line is “absolutely imperative.” He noted that if this was the initial development of a line, everyone would be involved and allowed to comment. In his opinion, one person cannot impose their will and hurt the will of others without due process. The commissioner suggested that PEC is not simply a bystander but, as the CCN holder, has a role to play in finding a solution that makes both sides happy.

Commissioner McAdams noted that there is 50 years of precedent involving balancing individual rights vs. the public interest and suggested there is a reason the statute has not been clarified in this regard.

Commissioner Cobos agreed that this situation will likely become more common and believed that requiring more CCN amendments would be a burdensome process for landowners. She suggested that setting the proper threshold in an expected future rulemaking would be appropriate.

Commissioner Glotfelty suggested it would be appropriate to err on the side of creating an opportunity for a CCN.

Chairman Lake added that the rule seems to be focused on routine operations and maintenance of existing transmission, not involving other landowners, and he doesn’t want to burden normal operations with endless CCN amendments but the Commission needs to be considerate of prudent avoidance in the future.

Chairman Lake recommended deferring a decision to allow further consideration, while encouraging all parties to continue settlement talks and discussion of options.

The Commission discussed requiring the development of a report to fully explain the current status of negotiations and any studies that are anticipated.

Mr. Johnson committed to provide more information to the Commission concerning the current status of negotiations and related studies.

Commissioner McAdams noted that it would be helpful for the Commission to know if Driftwood is close to being willing to underground a portion of the transmission line, whether the Commission is “trying to cross a big river or a little one.”

Background

The complainants filed the complaint at issue in this proceeding on October 1, 2019. The complainants own land adjacent to a tract owned by Driftwood DLC Austin II, LLC (Driftwood). A currently-certificated 138-kilovolt transmission line operated by Pedernales Electric Cooperative, Inc. (PEC) crosses the Driftwood tract in the northeast corner of the tract. Driftwood requested PEC relocate this portion of the transmission line to accommodate the building of a golf course. The proposed relocation site is within the Driftwood DLC tract, but would move a portion of the transmission line to within 300 feet of the complainants' residential tracts and habitable structures.

Driftwood agreed to pay PEC for the costs of relocation and furnish the necessary right-of-way. The complainants received notice from PEC of the relocation and were informed that a proceeding to amend PEC's CCN is not required because the relocation falls within the landowner-requested relocation exception.

The complainants requested a hearing to consider the proposed relocation and a stay against the commencement of construction activities.

On October 23, 2019, PEC filed a response to the complaint. In the response, PEC stipulated to all material facts alleged in the complaint, moved to dismiss the complaint on the basis that it fails to state a claim for which relief can be granted and for "other good cause."

On October 31, 2019, Staff filed a statement of position, supporting PEC's response in all respects and recommending dismissal of the complaint.

The administrative law judge (ALJ) concluded that PEC is entitled to a summary decision in its favor because the complaint does not allege a violation of a statute or Commission rule, and because the undisputed facts reflect that the complaint falls within the well-recognized exception.

A Proposal for Decision was filed on October 28, 2020.

In December 2020, the PUCT deferred a decision in the CCN proceeding after hearing comments from landowners concerning PEC’s plan to relocate the proposed transmission line to within 300 feet of their homes, reducing the impact of the previously approved route on a nearby golf course. PEC informed the Commission they had urged the parties to find a compromise route.

In July 2021, PEC filed a joint status report informing the Commission that the parties had been actively evaluating options to resolve this complaint, including the potential to underground the relocated transmission line, and requested additional time through January 2022 to engage engineering services to refine potential configurations and continue settlement discussions.

On February 2, 2022, PEC filed a status report informing the Commission that the parties were unable to identify a solution that satisfied all affected landowners in a way that could resolve the complaint. PEC requested that the Commission rule on the pending Proposal for Decision as soon as practicable.

On February 15, 2022, complainants filed a status report and requested oral argument, stating that since the “Snowpocalypse” of February 2021, four new PUC commissioners have been appointed and have not had the benefit of hearing from the parties or question them concerning the critical issues before them. Complainants added that whatever the new commissioners decide will have vast policy implications for all routing cases and the CCN process and its critical due process, impacting private property rights throughout the state of Texas.