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Arkansas Code Annotated

Ark. Code Ann. § 23-3-201 (2020)

Requirement for new construction or extension

✓ Arkansas Code release r76: Acts through about 2020 (2021-2025 sessions missing)
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  1. New construction or operation of equipment or facilities for supplying a public service or the extension of a public service shall not be undertaken without first obtaining from the Arkansas Public Service Commission a certificate that public convenience and necessity require or will require the construction or operation.
    1. This section does not require a certificate of public convenience and necessity for:
      1. The replacement or expansion of existing equipment or facilities with similar equipment or facilities in substantially the same location or the rebuilding, upgrading, modernizing, or reconstructing of equipment or facilities that increase capacity if no increase in the width of an existing right-of-way is required;
      2. The construction or operation of equipment or facilities for supplying a public service that has begun under a limited or conditional certificate or authority as provided in §§ 23-3-203 — 23-3-205;
      3. The extension of a public service:
        1. Within a municipality or district where a public service has been lawfully supplied;
        2. Within or to territory then being served; or
        3. That is necessary in the ordinary course; or
      4. Except as provided in § 23-18-504(c), the construction or operation of a major utility facility as defined in the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq., or any exemption under the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq.;
      1. This section does not require a certificate of public convenience and necessity for an electric utility that owns or has a legally recognized right-of-way, easement, or similar property right to property that is not being acquired by eminent domain and is traversed by the construction or connection of the following electric utility facilities:
        1. A new or existing transmission or distribution substation, transmission switching station, or transmission metering point and associated facilities or the extension to such facilities, provided that the public utility owns or has a legally recognized right-of-way, easement, or similar property right to the property that is traversed by the construction or connection of the facilities;
        2. If the electric public utility is not an electric cooperative:
          1. Any distribution lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section;
          2. Transmission lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section of up to two (2) line miles in length with a voltage of greater than one hundred kilovolts (100 kV); or
          3. Transmission lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section of up to five (5) line miles in length with a voltage of less than or equal to one hundred kilovolts (100 kV); or
        3. If the electric public utility is an electric cooperative:
          1. Any distribution lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section; or
          2. Any transmission lines up to five (5) line miles in length to or from the facilities identified in subdivision (b)(2)(A)(i) of this section if the electric cooperative has informed the landowners whose property is traversed according to the electric cooperative's business practices.
      2. Property that the public utility has previously acquired by eminent domain for the construction, operation, or connection of any other public utility facility is considered a legally recognized property right for the purposes of this subdivision (b)(2).
      3. This subdivision (b)(2) does not apply if the transmission or distribution lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section include a navigable waterway crossing subject to § 23-3-501 et seq.
  3. To the extent a member cooperative of a generation and transmission cooperative, as defined under § 23-4-1101, is exempt from the requirement to obtain a certificate of public convenience and necessity under subsection (b) of this section, the exemption shall extend to the generation and transmission cooperative.
  4. An exemption claimed by a public utility under § 23-18-504(a)(5) does not bar the:
    1. Public utility from seeking the issuance of a certificate of public convenience and necessity under this section; or
    2. Commission from granting the public utility the certificate of public convenience and necessity sought under subdivision (d)(1) of this section and thereby allowing the public utility to seek recovery of the reasonable cost of the equipment or facilities through rates.

History. Acts 1935, No. 324, § 41; Pope's Dig., § 2104; Acts 1957, No. 103, § 3; 1967, No. 234, § 5; A.S.A. 1947, § 73-240; Acts 1999, No. 1556, § 6; 2001, No. 324, § 1; 2003, No. 204, § 8; 2007, No. 468, § 1; 2009, No. 164, § 1; 2011, No. 910, § 12; 2013, No. 341, § 1; 2015, No. 736, § 2; 2015, No. 917, § 1; 2017, No. 273, § 1; 2017, No. 334, § 2; 2019, No. 765, § 1.

A.C.R.C. Notes. Acts 2003, No. 204, § 16, provided:

“Nothing in this act shall alter or diminish the Arkansas Public Service Commission's authority under otherwise applicable law.”

Publisher's Notes. Acts 2001, No. 324, § 1, repealed the amendment by Acts 1999, No. 1556, § 6, that was to become effective Jan. 1, 2002.

Acts 2001, No. 324, § 2, provided in part that its amendment of this section will be effective Oct. 1, 2003.

Amendments. The 2009 amendment rewrote the section.

The 2011 amendment added (b)(4).

The 2013 amendment added (b)(3)(D).

The 2015 amendment by No. 736 added (d).

The 2015 amendment by No. 917 deleted (b)(3)(D) and added (c).

The 2017 amendment by No. 273 added (b)(5).

The 2017 amendment by No. 334 redesignated (d) as (d)(1) and (2); added “or” at the end of the (d)(1); and, in (d)(2), substituted “Commission” for “nor shall such exemption bar the commission”, “the certificate” for “such certificate”, and inserted “sought under subdivision (d)(1) of this section”, and made stylistic changes.

The 2019 amendment redesignated (b)(1) through (b)(4) as (b)(1)(A) through (b)(1)(D); rewrote former (b)(5) and redesignated it as (b)(2)(A); and added (b)(2)(B) and (b)(2)(C).

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Utilities, 8 U. Ark. Little Rock L.J. 611.

Case Notes

Class C Water Utilities.

When the General Assembly deregulated Class C water utilities in 1987, it also nullified by implication any exclusive franchises which may have otherwise been in existence pursuant to a certificate of convenience and necessity. Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996).

Convenience and Necessity.

Order of the Department of Public Utilities (now Arkansas Public Service Commission) granting applicant a certificate of convenience and necessity to construct a natural gas pipe line to serve customers which were being served adequately by another company at a higher rate held supported by substantial evidence since element of cost, although not necessarily of itself sufficient, was a very important one for the department to consider in determining whether the public convenience and necessity will be served. Department of Pub. Utils. v. Arkansas La. Gas Co., 200 Ark. 983, 142 S.W.2d 213 (1940).

Commission's decision to grant a certificate of public convenience and necessity to construct a 69-kilovolt electric transmission line affirmed; notice to affected landowners held sufficient. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).

Effect of Repeal.

The repeal of Acts 1919, No. 571, § 13 requiring certificate of public convenience and necessity before constructing new utility did not violate the Constitution so as to alter a utility's franchise in a manner injurious to its corporators. City of Paragould v. Arkansas Utils. Co., 70 F.2d 530 (8th Cir.), cert. denied, 293 U.S. 586, 55 S. Ct. 101, 79 L. Ed. 682 (1934) (decision under prior law).

Legislative Intent.

The commission, in issuing or denying certificates of public convenience, acts legislatively and effectuates the legislative intent through the promulgation of rules and regulations. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).

Municipal Corporations.

A city is authorized to construct a light plant without obtaining a certificate of necessity and convenience as provided by this section. Kitchens v. City of Paragould, 191 Ark. 940, 88 S.W.2d 843 (1935).

Cited: Summers Appliance Co. v. George's Gas Co., 244 Ark. 113, 424 S.W.2d 171 (1968).

Notes of Decisions
Cited in 4 cases, 1996–2011 · leading case: Hempstead Cnty. Hunting Club, Inc. v. Sw. Elec. Power Co., 2011 Ark. 234, 385 S.W.3d 123.
Sort: Relevance Newest Treatment
Hempstead Cnty. Hunting Club, Inc. v. Sw. Elec. Power Co., 2011 Ark. 234, 385 S.W.3d 123. · cites it 4× “Second, Hempstead states that Ark.Code Ann. §§ 23-3-201 to -206 (Repl.2002 & Supp.”
Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty, 923 S.W.2d 860 (Ark. 1996). · cites it 5× “See Ark. Code Ann. § 23-3-201 (a) (1987). Section 23-3-201 (a) provides that “[n]o new construction or operation of any equipment or facilities for supplying a public service, or extension thereof, shall be undertaken without first obtaining from the commission a certificate.”
Hempstead Cnty. Hunting Club, Inc. v. Arkansas Pub. Serv. Comm'n, 2010 Ark. 221, 384 S.W.3d 477. · cites it 2× “Section 23-3-201 provides that no new construction or operation of equipment or facilities for supplying a public service may be undertaken |uwithout obtaining a CECPN.”
Harness v. Arkansas Pub. Serv. Comm'n, 962 S.W.2d 374 (Ark. Ct. App. 1998). · cites it 3× “§ 23-3-201 (1987), to construct, operate, and maintain a 69-kilovolt high-capacity transmission line from a substation to be constructed in the southwest portion of Harrison, Arkansas, to its existing substation in Dogpatch, Arkansas, and into Jasper, Arkansas. A hearing on…”
Ark. Code Ann. § 23-3-201(a): 1 case
Hempstead Cnty. Hunting Club, Inc. v. Sw. Elec. Power Co., 2011 Ark. 234, 385 S.W.3d 123. “Second, Hempstead states that Ark.Code Ann. §§ 23-3-201 to -206 (Repl.2002 & Supp.”
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