Legalectric, Inc. Carol Overland Attorney at Law, MN #254617 Energy Consultant—Transmission, Power Plants, Nuclear Waste [email protected] P. O. Box 176 P.O. Box 69 Red Wing, Minnesota 55066 Port Penn, Delaware 19731 612.227.8638 302.834.3466 January 6, 2011 Burl Haar, Executive Secretary via email and eFiling Public Utilities Commission 121 – 7th Place East, Suite 350 St. Paul, MN 55101 RE: NoCapX 2020 & U-CAN Exceptions to ALJ Remand Recommendation PUC Docket 08-1474 Dear Dr. Haar: Attached for filing please find NoCapX 2020 and United Citizen Action Network Exceptions to ALJ Remand Recommendation in the above-entitled matter. These documents have been eFiled and eServed. Very truly yours, Carol A. Overland Attorney for NoCapX 2020 and United Citizen Action Network cc: eFiled & eServed STATE OF MINNESOTA BEFORE THE MINNESOTA PUBLIC UTILITIES COMMISSION David C. Boyd Chair J. Dennis 0’Brien Commissioner Thomas Pugh Commissioner Phyhs A. Reha Commissioner Betsy Wergin Commissioner In the Matter of the Route Permit PUC Docket No. ET2/TL-08-1474 Application for a 345 kV Transmission OAH Docket No. 7-2500-20283-2 Line from Brookings County, South Dakota to Hampton, Minnesota REMAND - EXCEPTIONS NO CAPX 2020 and UNITED CITIZENS ACTION NETWORK REMAND – EXCEPTIONS TO RECOMMENDATION AND REQUEST FOR ORAL ARGUMENT NoCapX 2020 and U-CAN offer the attached exceptions to the Report of ALJ Luis filed on December 22, 2010, and request that the routing permit for this CapX 2020 Brookings transmission line be denied because the applicants have not proposed a feasible or constructible option for crossing the Minnesota River. Applicants acknowledged the problems with the LeSueur crossing and shifted preference to the Belle Plaine Crossing. However, the record does not support an aerial crossing of the Minnesota River Valley, either at LeSueur or at Belle Plaine. Further, the Myrick Alternative, necessary to cross at LeSueur, is not available as it was not addressed in the EIS. For these reasons, there is no feasible route and the route permit request should be denied as infeasible. In the alternative, if the Commission wishes to approve a route permit, the Commission should require mitigation of harm to eagles and other migratory birds by requiring the project be undergrounded in the migratory path of the Minnesota River Valley at whichever crossing location the Commission might choose. NoCapX 2020 and United Citizens Action Network also hereby request oral argument before the Commission. The two ALJ Recommendations, and any Commission decision, to the extent that they rely on these Recommendations and the record, are flawed because they are based upon the ongoing fiction in this case due to failure by Minnesota Office of Energy Security to timely make public the state and federal agency comment letters regarding EIS scoping and Draft EIS. The specific fiction is that the routing decision was unexpectedly thrown in disarray due to a last- minute, outside of the record, letter from United States Fish & Wildlife, and that this remand was based on upon questions regarding that letter. However, that’s an inaccurate and small part of the story. There are facts and concerns raised by state and federal agencies, such as MnDOT, DNR and USFWS, that have a determinative impact on routing. There are facts, concerns and options raised by the Citizens Advisory Task Force, which recognized the infeasibility of the route options proposed and recommended a route that avoided the Minnesota River crossing entirely, but their informed suggestion was rejected in the scoping decision. The MOES fiction ignores agency and Task Force comments. Any decision made presuming the fiction in this case renders that decision unsupportable. The Applicants and MOES knew or should have known no later than April 30, 2009, over a year and a half ago, that the LeSueur crossing was not feasible based on MnDOT scenic easements, that the DNR had significant concerns, and that either crossing at LeSueur or crossing at Belle Plaine, was recommended be non-aerial, and if aerial, would result in a prohibited eagle take. The Applicants and MOES knew or should have known, yet this important information 2 was not conveyed to the Commission. When the reality of those ignored comments became known during the public hearings, Applicants scrambled to find a way through, going beyond the established corridor for a way around the problem and the rules, resulting in the Myrick route proposed in late-filed “Supplemental” testimony on December 15, 2009, and not reviewed in the EIS. This route option was proposed by the Applicants DURING the hearing, and for which notice was not sent to landowners until after January 1, 2010, AFTER the hearing had closed, not in the EIS and not available to the Commission as a routing option. Now, months later, after the initial Recommendation and the remand, we’ve received yet another “Recommendation” that is no recommendation – it again says essentially the same thing, “cross at LeSueur, and if not, cross at Belle Plaine.” We’re no further than we were before the remand. Why? Because crossing the river is not feasible and applicants knew or should have known, yet persisted. The Commission should tell the Applicants what the record demonstrates, that these options are not feasible and to come back when they have two feasible routes for review. I. LEGAL BASIS FOR AND CRITERIA DRIVING SELECTION OF ROUTE Minnesota Rules pertaining to siting (selected) 7850.1900, Subp. 2. Route permit for HVTL. An application for a route permit for a high voltage transmission line shall contain the following information: A. a statement of proposed ownership of the facility at the time of filing the application and after commercial operation ; B. the precise name of any person or organization to be initially named as permittee or permittees and the name of any other person to whom the permit may be transferred if transfer of the permit is contemplated ; C. at least two proposed routes for the proposed high voltage transmission line and identification of the applicant's preferred route and the reasons for the preference; D. a description of the proposed high voltage transmission line and all associated facilities including the size and type of the high voltage transmission line; E. the environmental information required under subpart 3; 3 F. identification of land uses and environmental conditions along the proposed routes; G. the names of each owner whose property is within any of the proposed routes for the high voltage transmission line; H. United States Geological Survey topographical maps or other maps acceptable to the commission showing the entire length of the high voltage transmission line on all proposed routes; I. identification of existing utility and public rights-of-way along or parallel to the proposed routes that have the potential to share the right-of-way with the proposed line; J. the engineering and operational design concepts for the proposed high voltage transmission line, including information on the electric and magnetic fields of the transmission line; K. cost analysis of each route, including the costs of constructing, operating, and maintaining the high voltage transmission line that are dependent on design and route; L. a description of possible design options to accommodate expansion of the high voltage transmission line in the future; M. the procedures and practices proposed for the acquisition and restoration of the right-of- way, construction, and maintenance of the high voltage transmission line; N. a listing and brief description of federal, state, and local permits that may be required for the proposed high voltage transmission line; and O. a copy of the Certificate of Need or the certified HVTL list containing the proposed high voltage transmission line or documentation that an application for a Certificate of Need has been submitted or is not required. Minn. R. 7850.2700 FINAL DECISION. Subp. 2. EIS adequacy. The commission shall not make a final decision on a permit until the commission has found the environmental impact statement to be adequate Minn. R. 7850.2500 EIS Preparation Subp. 10. Adequacy determination. The Public Utilities Commission shall determine the adequacy of the final environmental impact statement. The commission shall not decide the adequacy for at least ten days after the availability of the final environmental impact statement is announced in the EQB Monitor. The final environmental impact statement is adequate if it: A. addresses the issues and alternatives raised in scoping to a reasonable extent considering the availability of information and the time limitations for considering the permit application; B. provides responses to the timely substantive comments received during the draft environmental impact statement review process; and 4 C. was prepared in compliance with the procedures in parts 7850.1000 to 7850.5600. If the commission finds that the environmental impact statement is not adequate, the commission shall direct the staff to respond to the deficiencies and resubmit the revised environmental impact statement to the commission as soon as possible. II. USFWS HAS SUFFICIENTLY STATED THREATS TO EAGLES The Commission should take action that is consistent with the policies and directives of the U.S. Fish & Wildlife Service and federal law. USFWS is a federal agency, not subject to state subpoena, informing the record can be difficult, and the intersection of state and federal jurisdiction can be an uneasy one. In the specific issue ordered reviewed in this remand, the state’s DNR acquiesces to the jurisdiction of USFWS. Tr. Vol. 3, Testimony of Jamie Schrenzel, DNR, October 5, 2010. The Public Utilities Commission should give great weight and deference to this federal agency which pre-empts state jurisdiction over eagles and migratory birds. USFWS has consistently recommended a non-aerial crossing if the Minnesota River Valley.