20210312Decision Memo.pdf

DECISION MEMORANDUM 1

DECISION MEMORANDUM

TO: COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF

FROM: JOHN R. HAMMOND JR.
DEPUTY ATTORNEY GENERAL

DATE: MARCH 12, 2021

SUBJECT: IN THE MATTER OF THE FORMAL COMPLAINT OF WESTERN
AIRCRAFT, INC, AGAINST SUEZ WATER IDAHO, INC.; CASE NO. SUZ-
W-21-01.
On January 28, 2021, Western Aircraft, Inc. (“Western”) filed a formal Complaint
against Suez Water Idaho, Inc. (“Suez”).
On February 3, 2021, the Commission issued a Summons to Suez directing it to answer
the Complaint within 21-days.
On February 24, 2021, Suez filed its Answer.
The issue before the Commission now is how to further process this case.
WESTERN COMPLAINT
Western receives water service from Suez at its existing airplane hangar (“Hangar 1”)
on the south side of the Boise Airport. Complaint at 1 and 3. Western states it is building a new,
larger hangar (“Hangar 0”) that will be separated from Hangar 1 by a “covered breezeway.” Id. at
3. Western contends the breezeway is in a former right of way of the abandoned Boeing Street
and contains the water main and sewer line from which Hangar 1 receives service. Id. at 3-4.
Western claims its maps did not correctly show the water line locations and depths and
that the water main and sewer lines under the breezeway are inadequately separated. Id. at 4.
Western claims it proposed a revised water-connection plan for Hangar 0 that met all Idaho
Department of Environmental Quality (“IDEQ”) water, sewer and fire line location, separation and
crossing requirements on August 20, 2020. Id. Western asserts Suez has unreasonably withheld
its approval of Western’s proposal. Id. Western also claims it requested “Commission mediation”
of its disputes with Suez, through which it received a second proposed water-connection solution
DECISION MEMORANDUM 2

in a September 1, 2020 letter from Commission Staff. Id. Western claims Suez also has
unreasonably withheld its approval of this second proposal. Id.
Western asserts it obtained, at Suez’s suggestion, an IDEQ conditional water line
separation variance that would permit the water line to be placed under the breezeway. Id.
Western alleges Suez then unreasonably withheld its cooperation. Id.
Western requests that the Commission order Suez:
1. To allow a temporary water connection to Hangar 0 from the existing Hangar 1
water line pending the final resolution of this matter.
2. To negotiate in good faith with Western by:
a. providing the requested comparative cost estimates for different proposals;
and either
b. approving the revised connection plan; or
c. indicating which proposed alternative solution will work without charging
excessive costs to Western.
3. To not charge Western excessive, unreasonable and discriminatory fees, nor to bear
any costs to upgrade or relocate Suez' own water mains on or adjacent to Western’s
rented real property.
Id. at 6-7.
Western states “[a] formal hearing herein is requested, if necessary to seek the relief,
obtain water service and avoid the damages described herein. Id. at 7.
SUEZ ANSWER
Suez asserts Western wants to place a permanent building with walls—which Western
calls the “breezeway”—directly above a water main. Answer at 1-2. Suez alleges this would put
its water system out of compliance with IDEQ rules. Id. at 2; see also IDAPA 58.01.08.542.11.
Suez asserts it will work with Western to identify solutions, but Western must refrain from
construction that will place Suez’s system out of compliance with IDEQ’s rules. Id. at 2-3. Suez
asserts placing the breezeway on top of the water main would prevent Suez from accessing,
maintaining, and repairing the water main, and create the potential for damage to Western’s
structure and surrounding structures. Id. Suez asserts that the Commission should not order Suez
to provide water service if a customer chooses to construct a building that creates these problems.
Id. at 3.
DECISION MEMORANDUM 3

Suez states it has worked with Western in good faith and will continue to work with
Western to ensure Western’s proposal complies with applicable rules while allowing Suez
sufficient access to maintain and repair its water system. Id. at 3 and 11.
Suez also states the Commission should not require it to provide cost estimates for work
that Western may or may not need to perform to ensure that Western’s proposal complies with the
rules. Id. at 12.
Suez denies that the August 20, 2020, plan proposed by Western’s engineers complies
with applicable rules. Id. at 13. Suez alleges that Western acknowledged that its proposal does
not comply with the rules by requesting a waiver from those rules, which was denied by IDEQ
(contrary to Western’s assertion that a variance was granted). Id.
Suez submits that the Commission should not endorse any particular “proposed
alternative solution” to Western’s dilemma because IDEQ, not the Commission, interprets and
administers the rules of public drinking water systems. Id. In addition, doubts the Commission
the jurisdiction to endorse a proposed solution that does not comply with IDEQ rules. Id. at 13-
14. However, if the Commission is inclined to select an alternative, Suez requests that the
Commission determine with specificity which party must pay for the components of any proposed
water line solution. Id. at 14.
Suez stated that Western has not alleged or proven any discriminatory treatment on the
part of Suez. Id. at 14. Suez asserts developers’ plans must comply with IDEQ and other rules
and allow Suez to access, repair, and maintain its water system. Id. Suez alleges Western is
responsible for any costs needed to construct its project, including any costs needed to ensure that
its project does not detrimentally impact water service to Western or other customers. Id.
Suez also denies that any relief is necessary and proper based on the Complaint. Id. at
14. Suez denies that a formal hearing is required or needed in this case. However, Suez would
not object to a hearing if the Commission determines one is necessary. Id. at 14.
STAFF RECOMMENDATION
Staff does not take a position on whether a hearing is necessary. If the Commission
chooses not to hold a hearing it could process this matter by modified procedure, allowing the
parties to submit written comments. In either case, Western and Suez have filed detailed pleadings
with a number of exhibits.
DECISION MEMORANDUM 4

Whether a hearing or modified procedure is employed by the Commission, Staff
recommends that the Commission encourage the parties to hold at least one settlement conference
to attempt to resolve their disputes.
If the Commission decides a hearing is needed, Staff can confer with the parties about
a schedule and report that to the Commission. Similarly, if the Commission opts for modified
procedure, Staff can confer with the parties about written comment deadlines and report on those.
COMMISSION DECISION
Does the Commission wish to hold a hearing concerning Western’s Complaint? If so,
does the Commission wish to direct Staff to confer with the parties on a proposed schedule to be
submitted to the Commission for review?
If not, does the Commission wish to process the Complaint by modified procedure? If
so, does the Commission wish to direct Staff to confer with the parties about proposed comment
deadlines to be submitted for Commission review – or - does the Commission wish to set a 21 day
comment deadline for Staff and Western followed by a 7 day reply comment deadline for the
Company?
Regardless of which procedure the Commission selects, does the Commission also
wish to encourage the parties to hold a settlement conference?

____________________________
John Hammond
Deputy Attorney General

I:\Legal\WATER\SUZ-W-21-01\memos\SUZW2101_dec_jrh.docx