USA – CALIFORNIA Law and Practice Contributed by: Nora Sheriff, Gwenneth O’Hara, Samir Hafez, Antonio Carrejo and Timothy Lee, Buchalter LLP
• routing and siting conditions; • construction restrictions; • CEQA compliance and Tribal consultation, when triggered; • operational restrictions; • co-ordination with other agencies; • public and stakeholder engagement; and • technical and safety standards. On the federal level, the common terms and condi- tions include: • compliance with NEPA, the Clean Water Act, and • FERC backstop authority in designated corridors; • additional terms imposed under Section 1222 of the Energy Policy Act of 2005; • Tribal consultation; and • security, safety and interconnection standards. the Endangered Species Act (ESA); • right-of-way (ROW) on federal lands; To obtain an amendment or relaxation of a term or condition on approval, the proponent must file a Peti- tion for Modification (PFM) application with the CPUC. Once the application is filed, the CPUC staff will review the application and allow for public notice and a public comment period. Subsequently, the assigned admin- istrative law judge will issue a proposed decision with a recommendation for approval or denial. At the end of the application process, the CPUC commissioners vote to adopt, modify or reject the proposed decision. The federal process requires the proponent to file a formal request or amendment with the lead agency. If approved, the agency may do so as a permit amend- ment, supplemental record of decision, or modified ROW grant. 4.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Transmission Lines and Associated Facilities Private developers do not have automatic eminent domain rights in California. Instead, developers must partner with a utility that has the eminent domain rights, or must obtain public utility status from the CPUC. California Public Utilities Code Section 610 and California Constitution Article I, Section 19 grant
eminent domain authority to public utilities. However, the utilities must first obtain a CPCN from the CPUC in order to initiate condemnation proceedings under California Code of Civil Procedure Sections 1230 et seq. To obtain the rights to the surface of the land, propo- nents may enter voluntary agreements or assert emi- nent domain authority. Voluntary agreements include easements, fee simple purchases, and right-of-entry or temporary construction licences. The eminent domain action must be filed in the California Supe- rior Court, where the landowners may challenge the necessity of the taking and the compensation offered. The final compensation is determined by the court or a jury, based on appraisals. For projects that cross federal public lands, surface access and use is obtained through ROW grants, which are issued by the Bureau of Land Management or the US Forest Service. For access to and use of Tribal land, consultation and voluntary agreements are required. Eminent domain cannot be used on Tribal trust lands (without federal approval) or conservation easements. Both the California and US Constitution require just compensation for landowners when eminent domain is exercised. Such compensation may include: • fair market value; • severance damages if the value of the land dimin- ishes due to the transmission line; • temporary construction damage or licence fees; and • reimbursement of legal or appraisal fees – these may be negotiated, but are not required. 4.5 Monopoly Rights to Provide Transmission Services Transmission service is not an exclusive geographic monopoly in California, although traditional utility companies still own most transmission infrastructure. Unlike local distribution systems (the lower‑voltage lines that deliver electricity directly to homes and busi- nesses), high‑voltage transmission operates under a competitive, open‑access framework.
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