20210903Response to Atova Petition.pdf

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Michael C. Creamer (ISB No. 4030)
Preston N. Carter (ISB No. 8462)
Givens Pursley LLP
601 W. Bannock St.
Boise, ID 83702
Telephone: [phone]
Facsimile: (208) 388- I 300
mcc@ gi venspursley. com
prestoncarter@ gi venspursley. com
Attorneys for SUEZ Water ldaho Inc
I 58 16126_6.docx [30.2 l8]
IN THE MATTER OF THE
APPLICATION OF SUEZ WATER
IDAHO FOR AMENDMENT OF
CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Case No. SAZ-21-02
SUEZ W,lrrn lo.lno lxc.'s Rpspoxse
TO ATovA's PBTTTTON FOR
RrcoxsmERATroN oF FrNAL Onnnn
No.35130
SUEZ Water Idaho Inc. ("SUEZ") files this response to the Petition for Reconsideration
and Clarification ("Petition for Reconsideration" or "Petition") filed by Atova, [nc. ("Atova").
As set forth in more detail below, SUEZ respectfully submits that the Petition should be denied.
Bacxcnouxo
As set forth in the Application, over the years, the area removed from SUEZ's
certificated service area ("Area 3") has been a source of friction between the City of Eagle
("City") and SUEZ. Application at2-3. To address this friction, as well as other disputes
between the parties, SUEZ and the City signed a Water Management Agreement ("WMA"),
under which SUEZ agreed to request removal of Area 3 from its CPCN. Under the WMA, Area
3 was designated as a "Gray Area," and City and SUEZ agreed that, in response to future
requests for service in the area, the Party that has facilities available in the vicinity or that is
otherwise most easily, efficiently, and reliably able to serve a new customer request shall provide
RespoNsE To ArovA's PETrrroN ron RTcoNSTDERATToN oF FrNAL Onorn' 35130- I
water service to that portion of the area as is included or addressed in the particular new
customer service request Application at fll6; WMA at 2.
In a comment letter, the City of Eagle expressed its willingness and ability to serve Area
3. See July 8, 2021Email from Murray Feldman, attached as Exhibit 1. Although now removed
from its certificated service area, SUEZ also retains the ability to extend service to the area, in
accordance with the terms of the WMA and upon confirmation of the requesting party's needs.
Neither Atova nor any other party intervened in the proceeding. On August 9, 2021 , the
Commission approved the Application and removed Area 3 from SUEZ's CPCN, noting that
l) "customers will not be impacted by removal of the area from CPCN No. 143;" 2) the WMA
"provides the Company and the City a mechanism to engage in discussions involving future
expansion in or around the City's service area," which will hopefully "allow the City and the
Company to plan for fufure water service area investments cooperatively and in customers' best
interest;" and 3) if the area is developed, "the City has represented it can and will serve
customers in the area if it is no longer in the Company's certificated area." ,See Final Order No.
35130 at 3.
On August 27,2021 Atova filed the Petition for Reconsideration. Atova asserts that, as a
result of the Commission's order, no water provider is legally compelled to provide water service
within Area #3. Petition for Reconsideration at2-3.
RrspoxsB
1. Atova has not identified any aspect of the Commission's Order that is unreasonable,
unlawful, or erroneous.
Under the Commission's rules, "any person interested in a final order . . . may petition for
reconsideration." Commission Rule 331, IDAPA 31.01.01.331.01. Petitions for reconsideration
"must set forth specifically the ground or grounds why the petitioner contends that the order or
RrspoNsB To ArovA's PETrrroN FoR RECoNSTDERATToN oF FrNAL Onnsn 35130- 2
any issue in the order is unreasonable, unlawful, erroneous or not in conformity with the law, and
a staternent of the nature and quantity of evidence or argument the petition will offer if
reconsideration is granted." Id.
Atova has not identified any aspects of the Commission's decision that are umeasonable,
unlawful, erroneous, or not in conformity with the law. Atova merely identifies one of the legal
consequences of the Commission's decision-that SUEZ is no longer legally obligated to
provide service to the area. Petition for Reconsideration at2-3. The Commission was aware of,
and implicitly acknowledged, this component of its decision. Final Order No. 351310 at2-3
(noting the hope that the WMA will allow the City and SUEZ to work together to serve future
areas, and noting the City's representations that it is able to serve the area if the area is still
outside SUEZ's service territory).
SUEZ respectfully submits that Atova has not met the threshold requirements for
reconsideration. Nor has Atova identified any issue the Commission did not consider in issuing
its final order. Accordingly, SUEZ respectfully submits that the Petition should be denied.
2. Like other developers within unincorporated Ada County outside SUEZ's service
territory, Atova has several options for water service.
Removing Area 3 from SUEZ's CPCN leaves Atova in a position familiar to developers
that are located in unincorporated Ada County outside SUEZ's service territory. They have a
number of options to obtain water service. They are free to request water service from SUEZ,
from the nearest municipality, or to develop their own water supply. That has not proven to be an
deterrent to growth in these areas.
If anything, a developer within Area 3, such as Atova, is in a better position than other
developers. Throughout the years, SUEZ and the City have competed for customers within this
area. Both water providers are so keen to serve this area that removal of the area from SUEZ's
RespoNsr ro ArovA's PETrrroN FoR RECoNSTDERATToN oF FrNAL ORosR 35130- 3
CPCN-which opens the way to competition-was a key component in settling litigation
between the City and SUEZ. The City has expressed its willingness and ability to serve the area.
SUEZ, as well, is willing and able to serve the area. As noted in the WMA, when faced with
requests to serve within Area 3, the City and SUEZ will confer and the provider that can provide
service most efficiently will ultimately serve that area.
SUEZ recognizes that Atova might prefer that some water provider have the current legal
obligation to sere. However, SUEZ respectfully submits that, under the circumstances, Atova is
in no way stranded. SUEZ is confident that Atova will be able to obtain water service when
service becomes necessary.
Coxcr,usron
SUEZ respectfully submits that Atova has not identified any unreasonable, effoneous, or
unlawful aspect of the Commission's decision, and that Atova has not provided any other
persuasive reason for the Commission to reconsider its final order. Accordingly, SUEZ
respectfully submits that the Petition for Reconsideration should be denied.
DATED this 3'd day of September, 2021.
SUEZ Water ldaho Inc.
," ,- -::'- a" d-- { -
By:
Preston N. Carter
Givens Pursley LLP
Attorneys for SUEZ Water Idaho Inc.
RrspoNsn To ArovA's PETrrroN FoR RECoNSTDERATToN oF FrNAL Onprn 35130- 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 3d day of September,2O2l, a true and correct copy of the
foregoing document was served on the following in the manner indicated:
Jan Noriyuki
Commission Secretary
Idaho Public Utilities Commission
I l33l W. Chinden Blvd., Bldg No. 8,
Suite 201-,4. (83714)
PO Box 83720
Boise, D 83720-0074
Dayn Hardie
Deputy Attorneys General
Idaho Public Utilities Commission
I l33l W. Chinden Blvd., Bldg No. 8,
Suite 201-A (83714)
PO Box 83720
Boise, D 83720-0074
IPUC
Marshall Thompson
SUEZ Water Idaho Inc
8248 W. VictoryRd.
Boise, ID 83709
SUEZ
David M. Fogg
ELC Legal Services, LLC
3142W. Belltower Drive
Meridian,Idaho 83646
Atova
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Preston N. Carter
RrspoNsr ro ArovA's PETITIoN FoR RECoNSIDERATToN or FnrAL Ononn 35130- 5
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EXHIBIT 1
Preston N. Carter
Sent:
To:
Cc:
Flom:
Attachments:
Murray Feldman < [e-mail] >
Thursday, July 8, 20212:32?M
secreta ry@ puc.ida ho.gov
Michael C Creame[ Preston N. Cartef [e-mail]
City of Eagle comments on SUZ-W-21-02
City of Eagle comment ltr PUC SUEZ application SUZ_W_21_02 (070821).pdf
Subiect:
Dear Gommission Secretary:
Attached for filing in this matter are the written comments of the City of Eagle on this application
Murray Feldman
Partner, Holland & Hart LLP
800 W. Main Street, Suite 1750, Boise, lD 83702
T 208.383.3921 F 208.343.8869
HOTLAND&}IARX,trEM@NFIDENTIALITY NOTICE: Thb mess4o b confrderilial and may be pdvlleged. lf you belleve thafi thls emall has been sent lo you in eror, please rcply to the
senderthat pu rccehred the message ln onor; then pleaae delete thb e-+nall.
1
HoLLAND&HARI-tr Murray D. Feldman
Partner
Phone [phone]
Fax [phone]
[e-mail]
Jnly 8,2021
Submitted via Email
s e c r et ar1@1t u c. id a h o. g ov
Commission Secretary
Idaho Public Utility Commission
P.O. Box 83720
Boise,ID 83720-0074
Case Comments of City of Eagle on Case No. SUZ-W-2142 (In Re SaEZ
Water ldaho's Applicationfor Amendment of Its Certificate of Public
Convenience and Necessitlt)
Dear Commission Secretary:
On behalf of the City of Eagle, this letter presents the comments of the City of Eagle on
the above-referenced case.
The City of Eagle supports SUEZ's proposed amendment to its Certificate of Public
Convenience and Necessity as set out in SUEZ's Application and Request for Modified
Procedure in this case (dated April 2, 2021\.
As noted in SUEZ's application, the requested modification is part of the Water
Management Agreement entered into between SUEZ and the City of Eagle to resolve litigation
and disagreements between those two parties concerning the SUEZ and Eagle Water Company
joint application to the Commission to approve the proposed acquisition of the Eagle Water
Company assets by SUEZ. SeeSWZ Application for CPCN Amendment,l[1[9-17.
Also as noted by SUEZ in its application, the original factual situations underlying the
Commission's prior determination in LIWI-W-06-04, whereby this area was originally added to
SUEZ's certificated service area, are no longer applicable. Among other things, the City now
has the capacity, desire, and ability to serve this area upon a request for service from a developer
or customer. The area is within and surrounded by the current and future service area for the
City of Eagle's municipal water system as identified in the Exhibit A map attached to the Water
Management Agreement between SUEZ and the City (copy attached here as Exhibit A).
Re
T 208.342.5000 F 208.343.8869
800 W. Main Street Suite 1750, Boise, lD 83702-5974
Mail to: P.O. Box 2527, Boise lD 83701-2527
www.hollandhart.com
Alaska
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ldaho
N/on tarra
Ne,rada
New lvlexrco
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Washinglon, D a-.
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HoIIAND&HART-tr
Ju.ly 8,2021
Page2
Also, the area is identified in the City's Water System Master Plan Update as being
surrounded by the eastem service area of the City's municipal water system, as well as being part
of the City's water service planning area under its 2015 modification. (See attached Exhibits B
and C, also denominated as "Map #1" and "Map #4" from the "City of Eagle Municipally
Owned Water System Master Plan Update #3" (Sept. 2015)).
In addition, the City is now able to provide municipal water service to this area. The
nearest water main and source of supply for the City to be able to serve this area is located at
Beacon Light Road and Yizcaya Way, about 0.85 miles from the nearest part of the area that is
the subject of the SUEZ application. Upon an appropriate application and request for service
from a developer or customer, that City of Eagle water supply infrastructure could be expanded
to serve the subject area.
In sum, the City supports the SUEZ application and request for CPCN amendment. The
City also notes and represents to the Commission that the City is willing and able to serve this
area upon appropriate request, the area is part of the City's long-range water service planning
area and within the City's identified area of future service, and the City has the water resource
supply and water resource delivery facilities nearby to enable it to serve this area upon an
appropriate request.
Sincerely,
HOLLAND & HART rrptuatu
Murray D. Feldman
MDF/cmc
cc: Michael Creamer, Preston Carter, Givens Pursley LLC
em ai I t o m c c @giv ens p urs I ey. c o m arltd pr e s to n c art er@giv ens purs I ey. c o m
Marshall Thompson, SUEZ Water Idaho Inc.
email to mars hal l. thomp s on@ uez. com
Attachments
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Exhibit A: [t/ap showing areas pertinent to the Agreement
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2021 Eagle-SUEZ Water Management Agreement
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Page 12 of 28
lnitialed by V.P. & G.M. of SUEZ:
Exhibit A
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