By GARRY RAYNO, InDepthNH
CONCORD – On the eve of deliberations on the Northern Pass Transmission project, intervenors asked the Site Evaluation Committee to reject a new motion from the project’s developers.
Eversource wants the committee to take jurisdiction over local roads impacted by project construction, an issue that will be determined during deliberations.
Earlier in the adjudicative hearings, Eversource asked the SEC to delegate authority over local roads to the New Hampshire Department of Transportation, but the agency said it lacks authority and jurisdiction over local roads, and the resources to do the work.
The new motion was to have the SEC allow archeological survey pits to be dug every 25 feet along 1.3 miles of local roads in Clarksville and Stewartstown where the line will be buried.
The motion was made Jan. 19 along with the applicant’s final legal brief before deliberations begin.
The motion comes after the committee closed the record Dec. 22 meaning no more testimony or evidence would be accepted in the case.
The Town of Bethlehem asked the committee Jan. 4 to reopen the record to allow the testimony of a hotel developer whose project would be impacted by a transition station abutting the planned development.
Committee chair Martin Honigberg turned down that request saying the committee has sufficient information on the transition station to make a decision.
“Bethlehem’s proffered new evidence is repetitive, second-hand information, some of which was obtained from a Facebook page,” Honigberg wrote. “The Subcommittee has extensive plans, maps and photographs depicting the area of Transition Station 5.”
The town of Bethlehem disagreed.
In Eversource’s motion to allow digging the archeological survey pits, attorney Barry Needleman cites a Supreme Court decision siding with Public Service of New Hampshire against the Town of Hampton on a similar issue.
“The legislative intent for a single process governing the review, approval and construction of utilities remains unchanged in the present statute,” Needleman writes. “Manifestly, such a unified approach is necessary to prevent local passions and parochial desires from undermining larger state interests.”
He notes the company approached the two towns and asked for their concerns to reach an agreement on the work but they refused.
Because of the rejections, Eversource seeks the SEC’s authorization, he said.
The survey pits in archeologically sensitive areas are needed for the federal approval under the National Historic Preservation Act of 1966.
Northern Pass’s motion was backed by the International Brotherhood of Electrical Workers, but opposed by almost all other intervenors. The Counsel for the Public did not take a position.
The towns’ selectmen and municipal groups filed objections to the motion.
Writing for the joint municipal groups, Concord Deputy Solicitor Danielle Pacik said the law gives only municipalities the authority to approve work on local roads with the only exception for railroads.
And she argues the SEC statute never intended SEC’s authority to override municipalities’ to decide construction on local roads.
“RSA chapter 162-H authorizes the Site Evaluation Committee to issue a certificate relative to the siting of an energy facility, and to monitor the construction and operation of an energy facility to ensure compliance with the certificate,” Pacik wrote. “RSA 164-H:4, I (powers and duties); RSA 162-H:16 (findings and certificate issuance). However, there is no language in RSA chapter 162-H that evidences an intent to override a municipality’s authority to regulate its municipal roadways.”
She said Eversource should not be allowed to submit additional evidence after the record was closed.
“Those minutes have been available for several months, and the Applicants have long been aware that the Towns of Clarksville and Stewartstown were unwilling to grant permission to conduct the archeological survey,” Pacik writes. “It is unfair to the parties to have minutes untimely submitted into the record that were available many months ago.”
The Site Evaluation Committee begins 12 days of deliberations Tuesday at 9 a.m. at 49 Donovan Street in Concord.
The SEC has to issue a final decision by the end of February and a written decision by the end of March.
Northern Pass hopes to begin construction this spring.
Garry Rayno may be reached at firstname.lastname@example.org