Iowa Utilities Board Sets a Procedural Schedule for Pipeline Proposal

June 9, 2015
Kristine A. Tidgren

On January 20, 2015, Dakota Access, LLC, filed with the Iowa Utilities Board a petition for a hazardous liquid pipeline permit. The proposal to construct a crude oil pipeline from the Bakkan oil fields to an Illinois refinery includes 346 miles of 30-inch pipeline through 18 Iowa counties. Since filing its petition, Dakota Access has been attempting to negotiate voluntary easement agreements with the landowners who would be impacted by the proposed project. If IUB grants Dakota Access approval to build the pipeline, it would most likely also give Dakota Access the authority to condemn those properties through which the pipeline passes for which voluntary easements were not acquired.

Before the IUB can formally schedule a hearing to determine whether to grant the permit, Dakota Access must file a final Exhibit H. Exhibit H contains detailed information about each property over which Dakota Access seeks the power of eminent domain. Typically this exhibit is not filed until the company proposing the project has exhausted its attempts to negotiate voluntary easements. Properties for which it obtains voluntary easements are not included in the Exhibit H.

Dakota Access has not yet filed its final Exhibit H. Yesterday, however, the IUB filed an "order setting procedural schedule" for the project. The IUB acknowledged that the schedule cannot be official because the final Exhibit H has not been filed. The order states, however, that it would be helpful to the public and to Dakota Access to have potential deadlines and dates established. The IUB stresses in the order that the potential hearing date is "subject to change."

Landowners potentially impacted by this project need to be aware of the dates set forth in this schedule so they do not forfeit any rights.

July 27, 2015 Petitions to Intervene must be filed or "good cause" for intervention must be shown.
August 10, 2015 Dakota Access may file its final Exhibit H (this is within the discretion of Dakota Access, but the rest of the schedule rests on this).
August 21, 2015 IUB staff will prepare a report on the petition by this date identifying substantive issues Dakota Access should include in its testimony.
September 8, 2015 Dakota Access and supporting intervenors shall file prepared direct testimony and exhibits.
September 14, 2015 IUB staff will review Exhibit H and inform Dakota Access of substantive matters it should address in testimony with respect to Exhibit H.
September 23, 2015 Dakota Access and aligned intervenors will submit testimony and exhibits supporting Exhibit H.
October 12, 2015 Office of Consumer Advocate and Intervenors not supporting pipeline shall file prepared direct testimony and exhibits (including that relating to Exhibit H).
October 26, 2015 Dakota Access and aligned intervenors may file rebuttal testimony and exhibits
November 12, 2015 First day IUB has set aside for the hearing.
December 2, 2015 Last day IUB has set aside for the hearing.

 

The IUB states in its order that although it has set aside November 12 through December 2 for the hearing, it does not know if the hearing will take that long. The IUB also states that it does not expect landowner intervenors to have to sit through the entire hearing if they do not want to. Instead, the IUB will block off certain timeframes, by county, within which to address landowner concerns. The order also states that the following key questions will be submitted to the IUB at the same time:

  1. whether the proposed pipeline will promote the public convenience and necessity,
  2. whether the location and route of the proposed pipeline should be approved, and
  3. whether and to what extent the power of eminent domain should be granted
 
Key to this schedule is that landowners or others with an "interest" in this project must file a petition to intervene by July 27 if they wish to request the opportunity to present testimony or evidence at the hearing. The IUB may grant a petition to intervene in its discretion after considering the following factors:
  • The prospective intervenor's interest in the subject matter of the proceeding
  • The effect of the decision that may be rendered on the proposed intervenor's interests
  • The extent to which the proposed intervenor's interests may be represented by other parties
  • The availability of other means through which the proposed intervenor's interests may be protected
  • The extent to which the proposed intervenor's participation may reasonably be expected to contribute to the development of a sound record through the presentation of relevant evidence and argument.
  • Any other relevant factors

The IUB can also limit an intervenor's participation to a particular issue or a particular stage of the hearing.

If a landowner is interested in intervening in the hearing to determine whether Dakota Access will be granted a petition to proceed with the project, I recommend that he or she contact a trusted attorney. Multiple landowners can be represented by the same attorney as long as their interests align.

We will keep you posted as developments unfold. If the proposed schedule is followed, it is likely that the IUB will render its decision by the end of the year (or the beginning of 2016). If the IUB grants the permit and authorizes Dakota Access to use eminent domain, the condemnation proceedings described in this previous article would then begin.

CALT does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. CALT's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.

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