SWEPCO seeking to overturn judge’s rulings to protect property rights
Becky Gillette

One of the biggest landowner rights’ issues about the proposed American Electric Power (AEP)/Southwestern Electric Power Company (SWEPCO) proposal for a high voltage transmission line through the Ozarks isn’t just cutting down all vegetation within a 150-ft. right-of-way for 49-56 miles, depending on the route chosen. There have been concerns raised by many property owners potentially affected about the continual use of herbicides on rights-of-way, and how that might affect water quality in wells, streams and lakes.

Arkansas Public Service Commission (APSC) Administrative Law Judge Connie Griffin addressed those concerns in Order 32 that gave SWEPCO permission to build the transmission line on Route 109 that goes through Missouri for 25.5 miles. However, SWEPCO has objected to the judge’s provisions for landowners to be contacted for permission to use herbicides on their property, and be allowed to maintain the right of way themselves.

“SWEPCO shall avoid construction and maintenance practices that are inconsistent with the landowner’s or tenant’s use of the land, particularly the use of fertilizer, herbicides or other pesticides,” the judge’s order states. “To that effect, SWEPCO shall contact the landowner or his designee to obtain approval for the use of any herbicide prior to any application on the right-of-way. The landowner may request that there be no application of herbicides on any part of the site within the landowner’s property. Additionally, the landowner may choose to care for the right-of-way himself. SWEPCO shall permit landowners to care for the right-of-way as long as the landowner adequately performs this task.”

SWEPCO objected to the order contending that it “presents a substantial safety issue.” SWEPCO has asked to replace that paragraph entirely with:

“SWEPCO shall utilize best practices during construction and right-of-way maintenance. Fourteen calendar days prior to the use of any herbicide, SWEPCO shall contact the landowner or his designee. Any landowner may request that there be no application of herbicides on any part of the site within the landowner's property. Such requests must be made within ten days of the date the notice is sent. All herbicides that are used on the right-of-way shall be applied in a safe and cautious manner so as to avoid non-targeted vegetation or animal life and as to not damage property, including crops, orchards, tree farms, or gardens. At the landowner’s request, SWEPCO shall evaluate the landowner’s use and maintenance within the right-of-way on a case by case basis and determine if right-of-way maintenance is required.”

In filings responding to SWEPCO’s petition for a limited rehearing regarding the APSC decision on the power link, Save The Ozarks argued that SWEPCO provided no proof that complying with that order would present a “substantial safety issue.” While SWEPCO asserts that restrictions on herbicide use would result in additional right-of-way maintenance costs and that manual clearing will be more time-consuming, more frequent and more expensive, STO said SWEPCO has provided no support for such claims.

SWEPCO claims that requiring landowner approval prior to the use of herbicides presents a significant logistical challenge, and it could prove impractical to obtain either a written or verbal permission from each landowner prior to right-of-way maintenance. 

According to STO, SWEPCO claims it “cannot delegate or contract away its responsibility to maintain the right-of-way to landowners.” SWEPCO contradicts this statement by acknowledging that right-of-way maintenance can be delegated to some landowners – those whose land is pastureland.

SWEPCO meets its responsibility for ensuring compliance with federal reliability standards by inspecting rights-of-way to determine that standards are being met, and reporting results of such inspections to the NERC. STO claims contractors hired by SWEPCO to perform such inspections would have no more qualms or difficulties with inspecting rights-of-way maintained by landowners who don’t have pastureland than those maintained by landowners who do, or those maintained by commercial maintenance firms.

SWEPCO says it is “willing to cooperate with landowners on a case by case basis and evaluate the land use and need for subsequent right-of-way maintenance.” STO responds the evaluation of a landowner’s use of his or her own land is for the landowner to determine, not SWEPCO.

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