APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
BEFORE THE
ARKANSAS PUBLIC SERVICE COMMISSION
IN THE MATTER OF THE PETITION OF )
DIAMOND PIPELINE LLC d/b/a
)
DP PIPELINE LLC FOR AUTHORITY AND )
APPROVAL TO CONSTRUCT AND
)
OPERATE NAVIGABLE WATER CROSSINGS)
OF (1) THE ARKANSAS RIVER, FRANKLIN )
COUNTY, ARKANSAS; (2) THE ILLINOIS )
BAYOU, POPE COUNTY, ARKANSAS;
)
(3) THE WHITE RIVER, PRAIRIE COUNTY, )
ARKANSAS; (4) THE ST. FRANCIS RIVER, )
ST. FRANCIS COUNTY, ARKANSAS; AND )
(5) THE MISSISSIPPI RIVER,
)
CRITTENDEN COUNTY, ARKANSAS
)
DOCKET NO. 16-038-U
LEGAL MEMORANDUM REGARDING JURISDICTION AND OTHER ISSUES
Clarksville Light and Water Company's ("CLW") testimony filed August 4th herein
suggests certain legal issues, including issues regarding the Commission's jurisdiction, that are
more appropriately responded to by legal memorandum than factual or opinion testimony.
Diamond Pipeline LLC, d/b/a DP Pipeline LLC ("DP Pipeline") therefore respectfully submits
the following:
1.
DP Pipeline has filed a petition to construct, own and operate a 20-inch diameter
crude oil pipeline as a common carrier and river crossing proprietor of five navigable water
crossings located on (1) the Arkansas River in Franklin County, Arkansas; (2) the Illinois
Bayou in Pope County, Arkansas; (3) the White River in Prairie County, Arkansas; (4) the St.
Francis River in St. Francis County, Arkansas; and (5) the Mississippi River in Crittenden
County, Arkansas across and under the beds of those waterways. See Docket 16-038-U-Doc. 1.
2.
The testimony of CLW reveals the complete lack of any factual or legal issues
with any of the river crossings proposed by DP Pipeline. Rather, in contrast, CLW is concerned
1
1327429-vi
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
with the route of the pipeline as it crosses two creeks well east of the Arkansas River crossing;
these creek crossings are CLW's only point of contact with the pipeline anywhere in the
proposed route. However, the Commission has jurisdiction over navigable water crossings.
Ark. Code Ann. § 23-3-503(a). The creeks with which CLW is concerned have never been
recognized by any authority — legislative, judicial, or administrative — as navigable waterways.
They do not appear on lists of navigable waters maintained by the U.S. Army Corps of
Engineers or the Arkansas Waterways Commission. (See Exhibits A and B hereto.)
3.
Moreover, while CLW's testimony claims the creeks are used for recreation,
even if that is true of all of them for the better part of the year (a fact in dispute and requiring
more than mere assertion), they still do not qualify as navigable under the relevant statute,
which expressly employs the traditional definition:
"Navigable waterway" means any navigable river, lake, or other
body of water used, or susceptible of being used in its natural
condition as highways for commerce located wholly or partially
within the state."
Ark. Code Ann. § 23-3-501(e) (emphasis added). No claim is made that these creeks are
commercial thoroughfares.
4.
Nor has the General Assembly expressly delegated to the Commission the power
and authority to make navigability determinations. The Commission should be loath to take
unto itself the responsibility of adjudicating interests in real property as between the State and
riparian owners, with all of the due process trappings attendant thereto. Simply put, the
Commission is not well-equipped as a matter of tradition or expertise, to settle questions
regarding stream bed ownership.
5.
In addition, CLW's testimony makes clear that the relief it seeks is not within the
power of the Commission to grant. Ark. Code Ann. § 23-3-507(a) is clear:
2
1327429-v1
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
"(a) Upon the hearing, if it appears that the United States Secretary of the Army,
or such other federal agency as may have jurisdiction to consent to the
construction of erections in navigable waterways, has approved or permissively
authorized the proposed navigable water crossings, then the Arkansas Public
Service Commission shall grant the prayer of the river crossing proprietor's
petition unless the commission enters specific findings, based upon a
preponderance of the evidence that:
(1) The proposed navigable water crossing, if constructed and
operated as proposed, will jeopardize the public safety; or
(2) The construction of the proposed navigable water crossing at
the point specified in the petition will result in an unlawful
interference with some other paramount public or private use of the
navigable waterway or its underlying bed at the point of the
proposed crossing."
The questions for the Commission regarding the pending petition are only: (1) whether the
navigable water crossing itself is a danger to the public; or (2)whether the crossing itself will
unlawfully interfere with lawful use of the same waterway. The relief sought from the
Commission by CLW goes far beyond the statutory boundaries of the Commission's authority.
6.
In essence, CLW implicitly asks the Commission to become the overall routing
authority for oil pipelines crossing any part of the state, using its river crossing authority for
leverage to exercise this broad authority. There is no statutory warrant whatever for such
jurisdiction.
7.
In contrast, the statutory scheme regarding approval of river crossings has
explicitly limited the Commission's authority to disapprove a crossing where, as here, it has
already been approved by the Federal authority. CLW's attempt to expand this proceeding into
a broader discussion is therefore simply inappropriate under all of the relevant laws.
In conclusion, the Commission is a creature of the Legislature and can exercise only
such authority as the Legislature has delegated to it. Arkansas Gas Consumers v. Arkansas
Public Service Commission , 354 Ark. 37, 118 S.W.3d 109 (2003); Southwestern Bell
3
1327429-vi
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
Telephone Co. v. Arkansas Public Service Commission, 267 Ark. 550, 593 S.W.2d 434 (1980).
In this case, CLW wants the Commission to pursue authority that has simply not been granted
to it.
Respectfully submitted,
WRIGHT, LINDSEY & JENNINGS LLP
200 West Capitol Avenue, Suite 2300
Little Rock, Arkansas 72201-3699
(501) 371-0808
FAX: (501) 376-9442
E-MAIL: [email protected]
[email protected]
By /s/ N.M. Norton
N.M. Norton (74114)
Erika Gee (2001196)
Attorneys for Diamond Pipeline LLC, d/b/a
DP Pipeline LLC
CERTIFICATE OF SERVICE
I do hereby certify that a copy of the foregoing has been served upon all parties of record
by electronic mail, this 9t1i day of August, 2016.
/s/N.M. Norton
N.M. Norton
4
1327429-v1
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
EXHIBIT A
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
05/19/04
STREAMS CONSIDERED NAVIGABLE
IN LITTLE ROCK DISTRICT
("NAVIGABLE WATERS OF THE U.S.")
Stream
Arkansas River
(McClellan-Kerr
Navigation System)
Tributary of
White River
Head of
Navigation
Mouth of Grand (Neosho) River,
Oklahoma (Head of Nay. Not in LRD)
Goshen, AR (Hwy 45 Bridge)
31-17-28W, Washington Co., AR
(Portion of White Riv, Between
McClellan-Kerr Ark Riv Nav System Lock
#1 at mile 10, and Newport, AR, at mile
255 are under jurisdiction of Memphis
District)
Navigable
length in
SWL miles,
approx.
Total
Navigable
length in
miles,
approx.
303
391
441
686
218
218
White River
(mile 0+010 and 255
to 686)
Mississippi River
Black River
White River
Mengo, MO (Mo-Pac R.R. Bridge)
22-25N-6E, Butler Co., MO
Big Maumelle River
Arkansas River
Lake Maumelle Dam
34-3N-14W, Pulaski Co., AR
6
6
Buffalo River
White River
Mouth of Rush Creek
11-17N-15W, Marion Co, AR
22
22
Cadron Creek
Arkansas River
8
8
Current River
Black River
Van Buren, MO (Hwy 60)
24-27N-1W, Carter Co., MO
90
90
Eleven Point River
Spring River
Bardley, MO (Hwy 160)
19-23N-2W, Oregon Co., MO
54
54
Fourche Creek
Arkansas River
Little Rock, AR
16-1N-12W, Pulaski Co., AR
9.2
9.2
Fourche LaFave River
Arkansas River
Perryville, AR (Hwy 9)
15-4N-17W, Perry Co., AR
26
26
71
71
12
12
Greers Ferry Lake
Little Red River
Illinois Bayou
Arkansas River
Pleasant Valley, AR
(Mouth East Fork)
9-6N-14W, Faulkner Co., AR
Dam to Devils Fork mile 11.5
(Lat 92°02'N)
NE 3-11N-10W, Cleburne Co., AR
Middle Fork Mile 10.5
(92°15', 35°39')
NW NE 27-12N-12W, Van Buren Co, AR
and South Fork mile 21.5
(92°26', 35°34')
NW NW 25-11N-14W, Van Buren Co, AR
Shiloh, AR
(Russellville Water Supply Dam)
SE SW 17-8N-20W, Pope Co, AR
Lake Langhofer
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
Pine Bluff, AR (Cutoff Dam)
Arkansas River.
16-5S-9W, Jefferson Co., AR
5
Lee Creek
Arkansas River
Van Buren, AR
SW SW 4-9N-32W, Crawford Co., AR
Little Maumelle River
Arkansas River
Little Red River
Mulberry River
5
6
6
Pinnacle, AR (Hwy 300 Bridge)
3-2N-14W, Pulaski Co., AR
8.6
8.6
White River
Bee Rock, AR
SE SW 36-8N-7W, White Co., AR
31
31
Arkansas River
Mulberry, AR (1-40 Bridge)
24-10N-29W, Franklin-Crawford Co., AR
6
6
North Fork RiverNorfork Lake
White River
Dawt, MO (Unnamed Road Crossing)
3-22N-12W, Ozark Co., MO
Petit Jean River
Arkansas River
Spring River
Black River
Little River
Red River
50
50
24
24
8
8
16
16
°
Rocky Crossing, AR (Hwy 7)
23-5N-21W, Yell Co., AR
Sloan, AR
South Line Sec 25,
North Line Sec 36-18N-2W,
Lawrence-Randolph Co., AR
Millwood Dam
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
EXHIBIT B
8/9/2016
AWC I Rivers
Agencies
I Online
Services
State
Directory
APSC FILED Time: 8/9/2016 3:02:51
PM: Recvd
8/9/2016
3:01:13JPM:
Docket
16-038-U-Doc. 15
Home About Us
Commission
ravers
Pons ana iermmais
Intermodal
A+ I A- J Text I Print
News
caucanon
Search Site
Rivers
Arkansas River
Mississippi River
Ouachita River
Red River
Links
Contact Us
Home > Rivers
Rivers
Did you know that Arkansas is THIRD in our nation in the number of inland waterway miles? Arkansas is one of only
24 states in the United States to have the unique resource of inland waterways.
White River
For more information on each of Arkansas' navigable rivers, click the links to the left.
The Mississippi River forms the eastern border of the state. This mighty river is the main trade corridor for goods
produced in the northern part of the U.S. traveling to gateway ports near the Gulf of Mexico.
The Arkansas, Ouachita, Red and White Rivers are also important transportation routes serving Arkansas. As trade
between the U.S. and Latin America grows, the importance of Arkansas waterways and the strategic location of the
state will enhance manufacturing and distribution opportunities.Arkansas enjoys one of the largest inventories of
navigable waterways in the nation with 1000 miles along five rivers.
• Map of U.S. inland waterways system - PDF
• Map of products shipped from Arkansas waterways - PDF
• Map of Arkansas Ports - PDF
http://waterways.arkansas.gov/rivers/Pages/default.aspx
1/2
8/9/2016
Home
About Us
Commission
Rivers
Ports
AWC I Rivers
Intermodal
Finc7 Us On.,
APSC FILED Time: 8/9/2016 3:02:51 PM: Recvd 8/9/2016 3:01:13 PM: Docket 16-038-U-Doc. 15
News
-acebook
Education
ill rider
Links
=M. YouTube
Accessibility I Privacy I Security I Acceptable Use
http://waterways.arkansas.gov/rivers/Pages/default.aspx
101 East Capitol Ave. Suite 370
Little Rock, AR 72201
Phone (501) 682-1173
Google Map I Contact Us
Copyright © 2012 State of Arkansas. All Rights Reserved.
2/2