COMMENTS FROM BARC ELECTRIC COOPERATIVE

REGARDING PESTICIDE CONTROL LAW RULEMAKING

(Coake Petition for Rulemaking)

11.08.2012

BARC Electric Cooperative (BARC) is a rural electric distribution cooperative serving the far west/southwest portion of Virginia.  With approximately 2,000 miles of electric distribution line, BARC’s service territory stretches from the top of the Blue Ridge Mountains down into the Shenandoah Valley and back into the Alleghany Mountains to the West Virginia border.  BARC’s territory is among the most rugged, heavily forested and mountainous terrain in the state.  As BARC relies heavily upon a herbicide cycle program to control right-of-way re-growth, BARC believes these proposed rule changes would have a disparate and direct impact on BARC and its ratepayers.  BARC therefore opposes the petitions.

There are two types of right-of-way easements in place today:  written and prescriptive.  A prescriptive easement is deemed to exist according to Virginia’s laws regarding adverse possession for right-of-way that is at least 20 years old.  In general terms, prior to 1985, BARC, like many electric utilities, did not obtain written easements.  Since more than 20 years has now passed (from 1985), BARC considers a prescriptive easement to exist on all such right-of-way, which courts have upheld.  The majority of BARC’s easements are prescriptive and not written.

Around 1985, BARC began obtaining written easements and began recording those easements in the appropriate county.  BARC’s written easements include the following language: 

Co-op shall at all times have the right to keep the designated rights of way clear of all buildings, structures, and other obstructions (except fences), trees, roots and undergrowth by both mechanical and chemical means.  Additionally, Co-op may cut, trim and control by the aforesaid means any trees located adjacent to the designated rights of way which interferes with, threaten or endanger the operation and maintenance of said lines.

BARC interprets “chemical means” to include herbicide applications.  No prior written notice of an herbicide application, or additional permission, is required under BARC’s written easements.  Because BARC’s easements are recorded against the real property, BARC’s easements “run with the land” in perpetuity, even if the ownership of the property changes.

The proposed rule regarding notice and permission would create major customer confusion.  Specifically, there would be differing opinions about whether BARC’s written easements would be grandfathered or superseded by the proposed rule.  Further, confusion would exist whether BARC’s right to apply herbicide in its prescriptive easements required prior notice and permission.  If the proposed rule did apply to prescriptive easements (which the vast majority of BARC’s easements are), the administrative burden on BARC’s small staff to coordinate the notice and permission of thousands of property owners would be significant.  BARC would require major additions to staff, and incur significant additional costs, to manage such a task.  Those costs would be borne by our ratepayers through electric rate increases to recover those costs.

The proposed rule may constitute a “taking” under the Virginia constitution.  It is not equitable for a landowner, or the government (by rule), to take away the right of the utility to maintain its ROW by chemical means, a right that it acquired either in writing (written, recorded easement that runs with the land) or via prescriptive means, particularly if BARC compensated the landowner for the easement originally.  Compensation would be due to the utility for such a taking.

Herbicide is a cost-effective control method for controlling re-growth between mechanical trimming cycles.  The re-growth must still be maintained regardless of this proposed rule change.  The alternative to herbicide is annual or semi-annual brush hogging or hand clearing, which is a tremendously more expensive and labor-intensive method of right-of-way re-growth control.  On the BARC system there are some places where after two growing seasons the brush is too big to brush hog.  These additional costs would again be borne by our ratepayers through electric rate increases to recover those costs.

This rule would for all practical purposes make it impossible for BARC to maintain any sort of coherent, comprehensive, and cost effective herbicide application plan.  Such a rule would create a geographic patchwork of properties that did or did not permit spraying.  Some would be contiguous with like property and some would not.  There would be thousands of landowners to contact.  The written notice process would require a dedicated staff to determine mailing addresses, track letters out, letters received, nature of response, research and field marking (and re-marking when flags or signs are removed or lost) of property boundaries relative to the right-of-way, production of paper maps for use in the field by the applicator.  In cases where the landowner cannot be reached, confusion would abound about whether BARC could proceed without affirmative permission granted.

Matching right-of-way boundaries with specific property boundaries is simply not practical.  In many areas, the county real estate office does not have accurate mapping of property boundaries.  It is not feasible, or cost effective, to survey and mark each landowner’s property boundary, which this rule would essentially require.  It would be required to prevent overspray getting onto an adjacent landowner who does not allow spraying.

BARC Electric Cooperative appreciates this opportunity to offer comments in opposition to the Coake Petitions for Rulemaking.  Thank you.

Michael Keyser

CEO

BARC ELECTRIC COOPERATIVE
84 High Street
P.O. Box 264
Millboro, Virginia 24460-0264