Landowners impacted by BPA’s I-5 corridor project have rights

Proposed BPA project will require agency to obtain a right-of-way for new transmission line & access roads

Kelly Walsh

Last month, the Bonneville Power Administration (BPA) released its final Environmental Impact Statement for its I-5 Corridor Reinforcement project. The project proposes building a 500-kilovolt lattice-steel-tower transmission line that would run from a new substation near Castle Rock, Washington to a new substation near Troutdale, Oregon. The purpose of the project, as stated in the Impact Statement, is to “increase the long term electrical capacity” in Southwest Washington and Northwest Oregon.

The project will require BPA to obtain a 150-foot right-of-way for its new transmission line and a 50-foot right-of-way for access roads. Most of the land needed for the project is privately owned. To obtain the land it needs, BPA must acquire by condemnation the private land to allow BPA to “construct, operate and maintain the line in perpetuity.” According to the Impact Statement, the landowner would still own and use the property, but BPA would have the right to prevent or eliminate any uses of the right-of-way that would interfere with BPA’s operation.

The proposed route of the project (which can be viewed online at www.bpa.gov/Projects/Projects/I-5/Pages/EIS.aspx) will adversely impact nearly 200 landowners in Southwest Washington (Cowlitz and Clark counties). Since BPA is classified as a public agency under federal law, it has authority through the United States’ eminent domain powers to obtain this private property with or without the landowner’s consent. The eminent domain process (also referred to as condemnation) allows a government entity (such as BPA) to take private property for public use. The Fifth Amendment of the U.S. Constitution, however, provides that the government must pay “just compensation” to landowners in these cases. Washington state has a similar provision in its state constitution that requires comparable “just compensation” for the taking of private property. Thus, if a public agency “takes” your property, it is obligated to pay for it.

Most of the landowners affected by the project will face a “partial taking” – meaning that they may still be able to reside on their properties, but their rights to use their property will become subject to the limitations that BPA will impose. These takings can have serious consequences for the property owner for which they are entitled to be paid. In partial takings, just compensation includes the diminution in the fair market value of the remainder of the property that is impacted by the taking.

Damages that a property owner may be entitled to receive compensation for include obstruction of a view, loss of the ability to engage in farming, crop losses and the consequences of an electromagnetic field causing safety concerns. Even the perception that health hazards or safety concerns exist can reduce the value of a property. Not surprisingly, property owners and the government often disagree on the damages owed for such a taking and there is often a lot that can be done in defending a property owner who is being subjected to the government’s power of condemnation.

Eminent domain law is complex and changing. Landowners facing a taking of their property (or who have concerns regarding a taking of their property) should contact an attorney experienced in condemnation proceedings to determine their rights.

Kelly Walsh has a condemnation practice and Paige Spratt has a construction practice. Both are attorneys in the Vancouver offices of Schwabe, Williamson and Wyatt. Ms. Walsh can be reached at kwalsh@schwabe.com, 360.905.1432; and Ms. Spratt can be reached at pspratt@schwabe.com, 360.905.1433.

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