In what appears to be a groundbreaking tactic Northern Pass says it plans to ask the state’s Site Evaluation Committee to give it permission to bury its transmission lines on roadside property that the Society for the Protection of New Hampshire Forest says it controls.
But there are serious doubts that the Site Evaluation Committee has that authority, leading to the prospect of a court fight and delay in the project.
The society says it has land in two places that are blocking the new route Northern Pass announced in June. To try and win more support Northern Pass said it would bury about eight miles of transmission lines and locate some towers in more remote areas.
Part of Northern Pass’s new route runs through Clarksville along a section of Route 3.
And this stretch of road is a problem for Northern Pass, says Will Abbott, an official with the Society for the Protection of New Hampshire Forests.
“We’re looking at an expanse of land that is part of a 2,100-acre Forest Society reservation called the Washburn Family Forest,” Abbott says.
The Forest Society obtained the land years ago.
“We own both sides of the road, including underneath the road from here up to the town line. And we own over to the center line of the Connecticut River,” says Abbott.
Northern Pass’ new plan calls for burying the transmission lines here, along Route 3.
But Abbott says Northern Pass does not have permission to use almost 500 feet of land owned by the Forest Society.
And a little farther east there’s another section of the proposed route that could also pose problems.
It’s along Bear Rock Road in Stewartstown and Rod McAllaster’s family has farmed the area for decades.
His family bought this little parcel of land around Bear Rock Road about forty years ago.
“Well, it’s some fields, some woods it was an individual farm at one time, probably a 10-cow farm at a time when people farmed with horses,” he says.
Recently he sold a conservation easement to The Forest Society so it could block Northern Pass.
“They own under this road,” he says. “The state and the town only own the right-of-way as far as I know.”
And because of that, and the section of route in Clarksville, the Forest Society’s Will Abbott claims the Northern Pass project is in trouble.
“Well, I think they are between a rock and a hard place at the moment and I can’t believe but that they don’t think the same thing.”
But Michael Skelton, a spokesman for Northern Pass, disagrees.
“We obviously have a different perspective than The Forest Society and we think what we are proposing to do is in alignment with state law and what has been an accepted practice for close to 100 years here in New Hampshire,” he says.
Skelton says on roads throughout the state there are utility poles above ground and sometimes pipelines below.
“So, what we are proposing to do is not dissimilar to that,” Skelton says. “We are using an established public roadway for the placement of a utility line.”
And he says state officials can approve such requests.
“Ultimately the arbiter in deciding whether that is an appropriate use of that pubic roadway is the New Hampshire Site Evaluation Committee,” he says.
Abbott disagrees. He says the Forest Society’s lawyers will argue the Site Evaluation Committee does not have the authority to take private land.
“Northern Pass seems to be making the argument that they can go to the state and the state can wave some magic wand and use land that is privately owned for this project as they are proposing,” he says.
Indeed the Site Evaluation Committee does not have the authority to take private land, says Michael Iacopino, the SEC’s lawyer.
Iacopino declined to predict how the SEC might handle such a request from Northern Pass since the project is pending.
But he said someone asking the SEC to approve the use of private lands over the opposition of the land owner would be a “novel” issue and one that has never before been encountered by the SEC.
Former Public Utilities Commission chairman Doug Patch says having the SEC resolve a dispute between The Forest Society and Northern Pass is an “unlikely scenario.”
Patch is an energy lawyer from Concord and for the last 20 years he has been involved with the SEC as a committee member or an attorney practicing before it.
“I can’t think of a situation like that where the committee has been presented with an issue like this and actually had to resolve it or whether they have been deemed to have the jurisdictional authority to resolve it,” he said in a telephone interview.
“It seems more likely to me that this kind of issue would be resolved in a different forum, perhaps before a probate court or in some other forum, some other litigated forum,” Patch says.
That could mean a long court fight.
Or Northern Pass might simply decide to try another route.
Northern Pass spokesman Michael Skelton says the route announced recently is a “proposed route and that route could change going through the permitting process based on what we learn.”
One alternative noted in Northern Pass’ most recent filing with the U.S. Department of Energy is trying to cross 100 feet of the Connecticut Lakes Headwaters, which is protected by a conservation easement held by the state.
But Northern Pass’ Skelton says that is not being seriously considered and was only included due to a regulatory requirement to list alternatives.