Power Up: Infrastructure Site Selection
May 2009

A growing state results in the need for new infrastructure to meet the demands of an expanding population. These infrastructure projects include electrical, gas, water, drainage, transportation and other significant projects.

The current lull in growth and construction provides an opportunity to review the process under which infrastructure is developed. Fundamental issues in each case are locating the project to meet the particular needs of the area, and creating a project that is compatible with the environment and surrounding developments. In this article, the focus is on siting major electric transmission facilities. However, the principles discussed apply to the siting of almost any significant infrastructure project.

Checks and Balances
Utilities seeking to build a major transmission line of 115kV or more must apply for a certificate of environmental compatibility (CEC) with the Arizona Power Plant and Transmission Line Siting Committee (the Committee). After an evidentiary hearing, the Committee grants or denies the CEC. The Committee’s decision is reviewed by the Arizona Corporation Commission (ACC). The ACC, in the broad public interest, balances the need for the project against the impact of the project on the environment.

Interested parties, including landowners, members of the public, environmental groups, municipalities and others, may intervene and participate in the process. Participation may include presenting witnesses, cross-examining the applicant’s witnesses and filing legal memoranda. In a recent case before the Siting Committee, 17 such parties intervened, 28 witnesses and 125 exhibits were presented and the hearing lasted 16 days.

Picking Pieces
The Committee often faces the question of whether to site a project on public land or private land. Several factors are considered in evaluating the use of either public or private land. There are usually three major issues in evaluating the impact of a project on private land.

  • Is the land currently used? Is the private land developed with dwellings or commercial buildings that might be “taken” by placement of the transmission line project? The Committee usually avoids such a route.
  • Is the private land undeveloped but the subject of pending or approved plans, such as planned area developments and approved plats? The Committee gives weight to those future plans as required by state law, but must balance the project’s impact on such future plans against the need for the project.
  • If the private land is not developed or subject to any future plans, the private landowners may be concerned that the transmission line will negatively affect the future value of the land.

With respect to public lands, several issues arise.

  • An important public use or benefit may be associated with the land. For instance, the Arizona State Land Department (SLD) is a major holder of public land in Arizona. The SLD holds land in trust and the proceeds from the sale of SLD land to support education in the state.
  • Some state lands are identified for sale or auction, or may be in the process of being sold or auctioned.
  • Other state lands not so identified may not be sold for many years — if at all. The Committee must weigh the benefits of the project against the value of state lands and the extent to which the project may diminish that value.

Similarly, federal lands are often considered for major transmission projects. Federal lands are usually managed by the Bureau of Land Management (BLM). The BLM’s plans for the land may affect the Committee’s decision. In some cases, the BLM has identified utility corridors. Projects proposed for these utility corridors are usually deemed to be compatible. On the other side of the spectrum, some federal lands are designated as national monuments or natural preserves. Such lands are usually considered not compatible with major transmission projects. Lands that are neither a utility corridor nor identified as national monuments are a “gray area” and may be designated as open space. It is this land that tends to make the Committee’s decision more difficult when balancing whether private or public land is best for an infrastructure project.

Another factor affecting the Committee’s decision to use private or public lands is the fact that the governmental entity managing the public lands can override the Committee’s decision. In the case of both state and federal lands, the utility must obtain a separate right-of-way granted by the SLD or appropriate federal agency. Either entity may deny the utility’s right-of-way application, thereby nullifying the decision of the Committee and the ACC. In one such siting case, the Committee approved a route through U.S. Forest Service land. The U.S. Forest Service refused to grant the right-of-way and the project, which the Commission deemed necessary to provide reliable service to the Nogales area, still has not been sited or built.

Whether to place major infrastructure projects on public or private land must be decided on a case-by-case basis by addressing the issues discussed above. This decision-making process should be public and transparent, and allow interested stakeholders to voice their preferences. An open, efficient process will be necessary to support the next growth phase in Arizona. In the case of major transmission projects, the state siting process provides that public forum.


Carla A. Consoli
Carla A. Consoli
Practice Group Leader, Partner

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