Coordination Works | February 2, 2011 | Dan Byfield --

It took 16 months, but the coordination process was a key component in stopping a major electric transmission line from being constructed through a small, rural county deep in the Heart of Texas.

When we received the call, the Public Utility Commission (PUC) had just postponed making their decision to run a 345 kV transmission line through an adjoining county and created, out of thin air, an alternate route through Mason County, Texas.

Mason County sits in the center of the scenic Texas Hill Country, has a population of 3,700 people on a good day, has no major shopping centers like a Wal-Mart or grocery chain, and is considered by the Texas Parks and Wildlife as one of the last “unspoiled places” in the state.

Our chairman Mike Dail, asked us to help Mason County protect the private property of hundreds of landowners who were being threatened by an arrogant utility company that had the backing of the state Public Utility Commission.    

Texas has a state statute that allows cities and counties to form planning commissions and requires state agencies to coordinate their plans with the local commission.  The statute is Section 391 of the Local Government Code and the specific section that requires coordination is 391.009(c).

When we found that statute in 2006, we used this vehicle to aid in stopping the I-35 Trans-Texas Corridor.  People in Mason heard about our victory and wondered if our strategy could stop the CREZ power line threatening their county.  We got the call in September, 2009.

Our first step was to get them educated on coordination, the 391 planning commission structure, and get them organized.  Fortunately, the county had dedicated elected officials who represented the will of the people.  They quickly learned the benefit of implementing coordination and formed a sub-regional planning commission allowed by the Local Government Code.

We then helped the citizens form a local support group that became known as the Hill Country Heritage Association.  It quickly grew into a 600 plus member, non-profit organization that began collecting money to help their local governments fight the transmission battle.

Our next step was learning who we were fighting.  The CREZ legislation designated the Texas Public Utility Commission as the lead state agency in charge of locating the regions where wind farms would be sited.  They also were to award lucrative contracts to 11 utility companies to construct thousands of miles of 345 kV electric transmission lines connecting the wind farms with major metropolitan cities like Dallas, San Antonio, and Austin.

The Lower Colorado River Authority (LCRA), a state created quasi-governmental water authority, was given the contract as the utility to build the “McCamey D to Kendall to Gillespie 345-kV CREZ Transmission Line” in the Hill Country where Mason is located. 

Initially, Mason wasn’t chosen for any of the alternate routes, but politics being as they are, PUC altered the course throwing Mason County into the mix without any warning.

Because of the PUC trick, Mason County literally had no more than two months to get organized and running.  Within that timeframe, we brought the city council and the county commissioners and county judge up to speed on the law, helped get them and the local folks organized, and demanded the two state agencies – LCRA and the PUC – begin coordinating with the City of Mason and Mason County.  Reluctantly, the two agencies agreed to meet. 

Our first meeting was in late November, 2009, with LCRA and two employees of the PUC.  One was a very arrogant attorney for the PUC who no more wanted to be in the meeting than going to the dentist to have a tooth pulled.  But, in that meeting, we used coordination to place both agencies on notice that what they were doing in Mason violated numerous federal statutes, namely the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) because the proposed line crossed two endangered songbird’s habitat and none of the proper studies were being performed.

The project manager for LCRA responded by saying there was “no federal action” that caused NEPA to apply, and the PUC attorney claimed they had exclusive jurisdiction because the transmission line was purely a state administrative process and all actions fell under their administrative purview.

That was the wrong position to take.  We knew we had them on the law and told them such in the meeting and the follow-up letter signed by Jerry Bearden, Mason County Judge.  Both state agencies now had the legal notice from a local government that they were in violation of two federal environmental statutes. 

Our next move was then to bring U.S. Fish and Wildlife Service (FWS) to the coordination table to discuss the Service’s role in ensuring proper environmental approval. Their local biologist came to Mason and in the government-to-government meeting stated the FWS was going to require a “full and rigorous Environmental Impact Study” as required by NEPA for the CREZ line going through Mason County.

In fact, he informed us that the Notice was drafted and currently being reviewed by his Washington office, that LCRA would be conducting the study and that LCRA had known of their duty for at least a year.  This put the LCRA and PUC in quite a box since just a few months prior they had taken the position, on the record, that an EIS was not required because there was no “federal triggers.”

The executive director of LCRA followed up the FWS meeting promptly with a letter explaining why his project manager made the statements he did to the Commission, and continued to take the position that their activities were sanctioned by the state and they were complying with all laws required.

Utilizing the home town expertise of two of Mason’s landowners, Dean Kothmann and Gerry Bohmfalk, we prepared an EIS work plan for the FWS and LCRA outlining the issues that must be rigorously analyzed in the NEPA study such as the economic impact, social cohesiveness of the community, destruction of cultural and historical resources, as well as, the pristine ecological resources that had been so well protected by Mason landowners since it was settled in the early 1800’s.

To drive our point home, we drafted a letter to LCRA in April, 2010, that laid out all the violations according to federal NEPA and ESA statutes.  We showed how even though LCRA had complied with all the state regulations for obtaining their proper state permits to build the transmission line, they could not begin that construction prior to a complete NEPA process and issuance of an incidental take permit for endangered species.

Judge Bearden signed the letter and mailed it to LCRA, the PUC, the U.S. Fish and Wildlife Service, and several other federal agencies just for good measure.

That letter was the last correspondence we sent to all the agencies and parties involved.  On July 28, 2010, the LCRA filed their final route selection with the state PUC and Mason was not selected as the “preferred” route, but was left in their application as an alternate route.  Landowners couldn’t relax, but they had won the first round. 

So, within the first seven months of ASL helping Mason County, we had placed a major roadblock for a potential CREZ line through Mason County.  Completing a rigorous EIS would add at least another 18 months to the planning schedule, a delay that would very likely cause LCRA to miss the state-mandated online date in 2013.

From July 28, 2010, the PUC had 180 days to decide whether to accept LCRA’s recommendation or choose Mason County, which meant the fight wasn’t over until the very end of the 180 days.

From that point forward, the landowners along the route banded together to fight the administrative process at the state PUC level.  They raised $250,000, hired lawyers, and appeared before the three-member PUC board one time where they had 15 minutes to plead their case.

However, it was what happened on January 12, 2011, (and within that 180 day window), the day before the landowners appeared in Austin that tells the story.

In a rarely performed move, the chairman of the PUC, Mr. Barry Smitheman, filed a memorandum in opposition to the alternate route being proposed by LCRA through Mason County.  Specifically, he stated “I agree with the ALJ (Administrative Law Judge) that none of the ‘P-lines’(the one through Mason County) should be selected, as these routes are longer and more expensive…[P]lus, evidence presented…credibly demonstrates that these lines rank poorly from an environmental perspective.”

Donna Nelson, the second of three PUC commissioners also filed a similar and unprecedented memorandum specifying that the route through Mason would have an impact on migratory birds and threatened and endangered species and that LCRA would have to comply with the Migratory Bird Treaty Act and obtain all necessary permits as required for endangered species.

All those arguments were spelled out in our meetings, work plan and letters sent by the Commission to the LCRA, PUC, and the U.S. Fish and Wildlife Service six months before.  The Attorneys and lobbyist hired by Mason reinforced these arguments in the administrative process as well showing how one community can come together and with great facts and a well planned strategy, take on federal and state agencies.

Often, it is hard to know if you are making progress when you implement coordination with the agencies.  In this case, every response from the three agencies indicated they would not be working with the Commission as requested, that they disagreed with our interpretation of the law, and that everything they were doing was well within the state sanctioned PUC process.

But, the proof is in the results.  To date, the Mason route is the only CREZ transmission line in the State of Texas where an EIS has been required, something achieved solely through the coordination process.  Prior to this, everyone believed that when the PUC changed direction and added Mason as a route selection that the political deal had been cut and Mason was it. 

And, even though every other competing route alternative was as well represented with lawyers and lobbyist as was Mason in the administrative process, the “environmental concerns” raised through the coordination strategy developed early on made the difference. 

Gerry Bohmfalk, a local landowner and world-renowned entomologist who helped draft the work plan as a local consultant for the 391 commission said:  “…this story turned out about as good as it could and you folks (ASL) played a major role in making it happen.  Upon reflection, Mason County was in effect, blind-sided.  We did not see this coming.  But, with your help and advice, along with committed local leadership and sound science, we were able to build a foundation upon which to mount a defense.  Your understanding of the law and the various agencies clarified our rights as citizens.  Your experience suggested tactics and strategies that fit our abilities.  Your warm and caring attitude also helps more than you probably realize.  You stood by us as one of our most valuable resources.”

Dean Kothmann, a landowner born and raised in the County and a retired professional engineer on transmission lines from Leawood, KS, said:  “[W]hen ‘Big Government’ threatened private property in the City and the County of Mason Texas, the American Stewards of Liberty assisted County and City governments with organization of a 391 Coordination Commission composed of local politicians and citizens.”

“ASL helped develop a strategy, engage local experts, create a state wide communication strategy and began government-to-government coordination meetings.  The speed and depth of the response demonstrated to outside organizations that Mason plays by the rules and is prepared to respond to those that are larger and stronger politically and financially. In my opinion, the 391 Coordination process was an important component in identifying and implementing the best public policy solution for all parties involved,” Kothmann added. 

The final decision has now been made and the Mason route is off the table.  Mason dodged a big bullet thanks to a committed and organized local community of caring individuals.  We were proud to be a part of such a great group of folks who stood and fought for what was right.