By Ted Waddell
UPPER DELAWARE RIVER VALLEY May 16, 2006 People are gearing up for a possible test court case that might develop into a precedent-setting legal battle between the U.S. Department of Energy (DOE) and the National Park Service (NPS), a branch of the U.S. Department of Interior (DOI).
In the rapidly building opposition to New York Regional Interconnect (NYRI), a privately owned, Canadian-based company which plans to construct a 200-mile-long series of 85'-135' high voltage direct current (HVDC) transmission line towers designed to carry a nominal 400,000 volts from near Utica to the Rock Tavern substation in Orange County, a grassroots organization called the Upper Delaware Preservation Coalition (UPDC) is rallying opponents under the banner "Save the River Valley! No Power Lines Along the Delaware River!"
Statements made by NYRI at its first public informational meeting held at New Windsor in response to questions about linear spacing of the towers ranged from 800 feet to a reported 200 feet.
If the towers were evenly spaced every 800 feet along the 200-mile length of the proposed route, that's 1,300 towers (5,200 feet per mile x 200 miles = 1,040,000 feet, divided by 800 = 1,300 towers).
In 1976, Congress passed the Wild & Scenic Rivers Act (Public Law 9-542). The federal legislation was the brainchild of former President Jimmy Carter, a frequent flyfisherman on the Upper Delaware River, and was designed to protect designated waterways from negative ecological/environmental impacts.
In 1978, former NPS Superintendent John T. Hutsky was put in charge of the Upper Delaware Scenic & Recreational River, a 73.4-mile section of river from the confluence below Hancock to just above Port Jervis, when it was added to the national Wild & Scenic Rivers system.
On August 8, 2005, President Bush signed the Energy Policy Act, and Congress passed the EPAct of 2005 on July 29, 2005 as Public Law 109-58.
The EPAct was designed to improve the nation's electricity capacity and reliability, and legislation provides for "enforceable mandatory reliability standards, incentives for transmission grid improvements and reform of transmission siting rules. These improvements will attract new investment into the industry and ensure the reliability of our nation's electricity grid in order to stop future blackouts [a reference to the Blackout of 2003]."
Highlights of the act, as listed by the U.S. House Committee on Energy and Commerce (energycommerce .house.gov) pertaining to electricity include: "Promotes investment in critical electric transmission capacity and efficiency measures by directing the Federal Energy Regulatory Commission (FERC) to do an incentive rate rulemaking. . . . Provides for expedited siting processes on both federal and private lands . . . authorizing federal utilities to participate in Regional Transmission Organizations (RTOs). . . . Promotes investment in the electric sector by repealing the existing Public Utility Holding Company Act (PUHCA)."
Section 1221(a) of the EPAct of 2005 directs the Secretary of Energy to conduct an annual study of transmission congestion within a year of enactment and then every three years thereafter.
Subsequent to the study, the secretary may designate National Interest Energy Transmission Corridor (NIETCs).
If a developer of a proposed transmission line in an area that has been deemed to qualify as an NIETC fails to get approval from the state within a year, FERC has the authority to override (pre-empt) the state (including any local municipality below the state level) and permit the developer to condemn land (excluding federal/ state land) for the project.
NYRI has asked the DOE to consider its request for an early designation of the geographic area listed in the proposal as a NIETC, thus eliminating state and/or home rule from the process if the area is determined to be "congested with energy constraints" and/or the cause of "economic decline and/or weakened national security."
NYRI has asked the state for a "certificate of environmental compatibility and public need" in accordance with Article VI of the NYS Public Service Law, which would allow it to install the powerlines locally.
In the river valley, the central issue is whether or not the EPAct of 2005 and provisions of possible NIETC designation may supersede the 1978 inclusion of the Upper Delaware into federal protection from such development under the Wild & Scenic Rivers Act.
Pursuant to Section 7(a) of the Wild & Scenic Rivers Act, FERC "shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or any other project works under the Federal Power Act (41 Stat. 1063), as amended (16 USC, 791a et seq), on or directly affecting any river which is designated . . . as a component of this national wild and scenic rivers system."
As two federal agencies may eventually face each other in court over the NYRI project, the UDPC is hoping to throw a monkey wrench into the mix by rallying public and political support in opposition.
To that end, the UDPC recently retained the services of Richard J. Lippes and Associates.
"The Upper Delaware and its river basin are an extremely important environmental resource for the Northeast and for our nation," said Lippes. "It is a wild, scenic river . . . and we need to protect the designation."
On Sunday, May 7, the UDPC held a public meeting to discuss the NYRI project and UDPC's grassroots efforts to fight it.
"You can fight city hall," said Lippes, noting that if the NYRI/UDPC contest goes to court, it could very well be a test case of national significance.
For more information, visit the NYRI Website at www.nyri.us or call 1-877-394-6974, or visit the UDPC Website at www.udpc.net
This Thursday, May 18 (7 p.m. to 9 p.m.), NYRI will present its only public informational meeting in Sullivan County at the Delaware Youth Center in Callicoon.