New beginnings in the new year! I've started my own law firm - Bayliff Law Firm PLLC!

 

I will continue representing landowners in transmission line cases at the Texas PUC. Other administrative law clients include competitive telecom companies, cable service providers, and retail electric providers (REPs).

 

My new office is located at 111 Congress Avenue, Suite 400 Austin, Texas 78701.

 

My email and direct dial telephone remain the same: bbayliff@RegLawFirm.com and (512) 225-0027.

I recently travelled to Knickerbocker, Texas, outside of San Angelo, to talk with landowners who were concerned about a proposed transmission line that may affect their properties. Because of the short notice for the meeting, I did not have a PowerPoint presentation or any handouts for the meeting and wished as I travelled to the meeting that I had something that I could use during my talk.

A week later, when I was working on a tansmission lines issues presentation for the University of Texas Continuing Legal Education 2010 Land Use Conference, I decided to adapt my conference presentation so I could use it for talks to landowners like those in Knickerbocker. The idea of making the presentation available online was then a natural outgrowth of that idea. I'm making the presentation available here on the Texas Power Lines Blog for landowners and others who want to learn more about transmission line proceedings in Texas. I hope to create videos of different sections of the presentation and make them available in the future.

Click the picture below for the landowner PowerPoint presentation.


If clicking the picture above does not work for you, please try this link.

The Railroad Commission (RRC) filed exceptions to the ALJ's Proposal for Decision (PFD) in Docket No. 37408. The docket is Oncor's application for approval of its proposed CREZ transmission line from the Riley to Bowman stations. The ALJ issued the PFD on February 12, 2010, the RRC filed its exceptions on the 19th. No parties contest Modified Route 20, which the parties agreed to in their settlement of the case.

The RRC exceptions focus on the appropriate way to address the potential impact of the proposed transmission line on active and inactive oil and gas wells. The Riley to Bowman line is located in Archer, Wichita, and Wilbarger Counties, which have dense oil and gas development. It is possible that there are inactive unplugged wells in the proposed right-of-way that cannot be plugged when the transmission line is active.

Oncor contends that it is not necessary to include any language governing wells in the PUC's final order approving the transmission line. PUC staff agrees with the RRC that additional language is necessary, but proposes language that the RRC contends will place the burden of identification and response on the RRC. The RRC's position is that the burden of identification and response should be on the utility. The PUC staff language requires the utility to file a map of the proposed transmission line with the RRC. Oncor would not be required to identify any known unplugged wells and is not restricted from constructing a transmission line over an existing oil and gas well even if it is aware of the presence of the well.

The RRC objects that the PUC staff's language puts the burden on the RRC to plug a well, even if the best response might be a minor deviation of the route to avoid the well. The RRC also objects to the staff's language as being inconsistent with the Texas Natural Resources Code and Texas Water Code to prevent waste of oil and natural gas resources.

The PUC staff and Oncor will respond to the RRC's exceptions before the PUC makes its final decision. This issue is important because the PUC's decision in this case will affect future transmission lines in areas where there is oil and gas development. Any ordering paragraphs approved in this docket likely will become standard ordering paragraphs in those cases.

The Public Utility Commission of Texas issued an order on February 12, 2010, suspending the subsequent CREZ projects that were scheduled to be filed between March 1 and July 26.

The suspension was necessary because a District Court in Austin issued a final judgment on January 15th, reversing and remanding the Commission's decision in Docket No. 35665 to award CREZ projects to several transmission service providers. The City of Garland had appealed the decision not to award any CREZ projects to Garland or any municipally-owned utility.

The Commission has determined that the record evidence in Docket No. 35665 will be reevaluated, so another full hearing will not be necessary. The previous schedule is no longer practical, however, so the Commission suspended the schedule for filing CCN applications for the subsequent projects until the assignment CREZ projects is decided in a new docket, Docket No 37902.

The suspension of the schedule for the subsequent projects does not affect the CREZ priority project applications that have been filed and for which hearings have been held or the sole remaining priority project, LCRA's McCamey D - Kendall - Gillespie project. That project is scheduled to be filed on July 6, 2010.

The legal issues surrounding wind energy in Texas continue to gain attention in the legal world. Dallas attorney and wind energy developer Steven DeWolf recently signed on with publisher LexisNexis-Matthew Bender to co-author an upcoming book on legal issues surrounding wind energy.

The book, currently titled "Texas Wind Law," will address the many aspects of Texas law that impact wind energy, including relevant statutes, regulations and rulings, as well as offering commentary and insight on wind energy issues from someone with firsthand experience. The book is scheduled to be available in the Spring of 2011.

DeWolf and his co-authors plan to address legal issues associated with the development, construction and operation of wind farms. Among the main topics will be wind energy leases, government incentives, transmission issues, offshore leasing, potential litigation, and compliance with Electric Reliability Council of Texas protocols and Public Utility Commission of Texas regulations.

DeWolf should have an interesting point of view and is in a position to look at several sides of this issue, through his operation of Wind Tex Energy Inc., an independent wind power development company in Dallas. Wind Tex Energy has developed four wind farms now in operation in West Texas.

Joining DeWolf as co-authors will be Ernest E. Smith, a University of Texas School of Law professor, and Roderick E. Wetsel, a Sweetwater, Texas, attorney.

Three SOAH ALJs issued orders late last week establishing initial procedural schedules and discovery guidelines. The orders request that Staff file its recommendations as to deficiencies, notice, and procedural schedules on Oct. 7.  

        Docket No. 37407    Docket No. 37408     Docket No. 37409

Due to the expedited nature of the proceedings, the ALJs state that initial prehearing conferences before the deadlines for intervention are appropriate. The hearing date will be discussed at the first conferences. The second conferences will require discussions of proposed scheduling orders and hearing dates. It appears that the first prehearing conferences will be held simultaneously.

Docket No. 37407 First Prehearing Conference - Oct. 6, 10:00 a.m., Second Prehearing Conference - Oct. 27th, 10:00 a.m.

Docket No. 37408 First Prehearing Conference - Oct. 6, 10:00 a.m., Second Prehearing Conference - week of October 19th.

Docket No. 37409 First Prehearing Conference - Oct. 6, 10:00 a.m., Second Prehearing Conference - week of October 19th. 

Because the case is proceeding on an expedited basis, the ALJs found that it is preferable to have discovery deadlines shortened. Responses to RFIs and Requests for Admission must be provided within 10 calendar days, objections to discovery must be made within 5 working days of receipt, motions to compel must be filed within 2 days of receipt. If a motion to compel is filed, the ALJs will require the party filing the objection to file a response, even if the dispute is settled.

The administrative law judges assigned to the dockets are:

Docket No. 37407 - Judge Steven D. Arnold
Docket No. 37408 -  Judge Katherine L. Smith
Docket No. 37409 - Judge Kerrie Qualtrough

In a recent filing in Docket No. 37260, a TPWD letter briefly notes that a written response to the TPWD recommendations may be required by law. The TPWD letter included several recommendations to protect wildlife resources. The Texas Parks and Wildlife Code, Sec. 12.0011 has for some time identified the department’s resource protection activities : 
    (1) investigating fish kills; 
    (2) providing recommendations that will protect fish and wildlife resources to local, state, and federal agencies that approve, permit, license, or construct developmental projects; 
    (3) providing information on fish and wildlife resources to any local, state, and federal agencies or private organizations that make decisions affecting those resources; and 
    (4) providing recommendations to the Texas Department of Water Resources.

This year's Legislature passed HB 3391, which added new language that requires an agency with statewide jurisdiction that receives a TPWD recommendation or informational comment to respond to TPWD in writing. The agency's response must include for each recommendation or comment provided by the department: 
    (1) a description of the proposed project, fish and wildlife resource decision, or water flow schedule resulting from the recommendation or comment; 
    (2) any other disposition of the recommendation or comment: and 
    (3) any reason the agency disagreed with or did not act on or incorporate the recommendation or comment.

The response to TPWD must be submitted within 90 days of the agency’s decision or action related to the recommendation or comment. This response is public information under the Texas Government Code.

This statute now gives TPWD’s recommendations a greater influence in transmission line cases in Texas. In the past, TPWD reviewed the environmental assessment prepared by the utility’s consultants and suggested that certain actions be taken to protect fish and wildlife resources. The Commission was not required to acknowledge or act on those recommendations. Now, the Commission must not only acknowledge the recommendations, it must publicly identify any modifications that were made as a result of those recommendations or explain why it did not act on or incorporate the recommendations. 

On Tuesday, Sept. 22nd, PUC Staff and Oncor filed comments only two days before the PUC’s Open Meeting on Thursday, asking that changes be made in the proposed Findings of Fact. The changes addressed several findings relating to ERCOT’s cost estimates. ERCOT based its initial cost estimates on preliminary information provided by Oncor. The new Findings of Fact clarify that non-CCN station work associated with the transmission line was not included in the cost estimate due to time limitations. On Wednesday, the ALJ submitted a correction memo incorporating the changes.

 

Commissioner Donna Nelson also submitted proposed changes to the proposed order in this docket, including revisions to a Finding of Fact and a Conclusion of Law that address the project’s status as a CREZ project.

 

The Commission approved the CCN application with the proposed changes at its Sept. 24th Open Meeting.

Many of the commenters that submitted comments this summer in PUC Docket Nos. 37049 and 37051 received personal replies from PUC Chairman Smitherman. As discussed in previous entries, Chairman Smitherman has revised his letter over the past few months, starting with a traditional “Thanks for writing, I’m filing your comments in the appropriate comments docket” letter. He later revised his letters to include personal recollection of his family’s ranch in the Hill Country and his priorities for review of CCN applications, and sent some letters referring to the benefit of wind energy in light of Washington’s expected global warming legislation. Some letters also referenced the transmission congestion and high costs being experienced in Houston and South Texas.

 

The Commission’s recent responses to political entities, associations, and people referred by U.S. Sen. Kay Bailey Hutchison's office have been signed by either all three commissioners or a PUC legislative assistant, are very short, and filed by the Commission’s Governmental Relations office. The new letters thank the author for their correspondence and state that a copy of the correspondence has been filed in a comments docket. The author is directed to send all future correspondence to Central Records instead of the Commissioners and directions are provided on obtaining filings in the docket.

 

It appears that individual letters to Chairman Smitherman are continuing to receive a current form response from the Chairman. In a letter to Hill Country landowners, Chairman Smitherman now refers to the PUC’s approval of LCRA’s request to study additional routes and routing concepts. He says that LCRA indicated that the scope of the new review would include a study area approximately double the size so the original study area. The Chairman then states that he is hopeful that LCRA will develop new routes that will help address citizens’ concerns.

On Thursday, Sept. 24th, the Public Utility Commission of Texas (PUC) voted to give the Lower Colorado River Authority (LCRA) additional time to study potential routes for the proposed CREZ transmission lines that may affect the Texas Hill Country. The additional time will allow LCRA to expand its study area to review possible routes in a wider area that will consider existing rights-of-way along I-10 and highways and current transmission line routes. The scope of the new review will include a study area approximately double the size of the previous study area. The additional time to expand the study area does not remove any of the existing proposed routes from consideration by LCRA and the PUC.

 

Industry representatives seemed to understand the political nature of the LCRA request and filed comments generally supporting the extension of time. E.ON, for example supported the extension if the length of time is reasonable and review of additional routes necessary. NextEra submitted a response that stated it recognizes the importance and concerns underlying the request, but there are urgent reliability and other needs for the priority transmission projects. NextEra urged the Commission to inquire into and determine whether the length of the requested delays is excessive. AES Wind said it “defers to the Commission for balancing all of the interests” but expressed concerns about when the lines will be energized. 

LCRA originally was required to begin submitting its applications for the lines in October. The additional time will extend filing dates to Oct. 28 for the Gillespie-Newton project, Jan. 15, 2010, for the Twin Buttes-McCamey D project, and July 6, 2010, for the McCamey D-Kendall-Gillespie project. The completion of the projects likely will be delayed from 2012 to the end of 2013.

 

The PUC’s decision was cheered by members of the Clear View Alliance, but it is likely that any new routes in the expanded study area are likely to bring their own opposition. Mason Mayor Brent Hinkley filed comments saying the citizens of Mason have become concerned about the proposed expansion and submitting a copy of a resolution stating the city's concerns.