20060119reconsideration_final_order_no_29956.pdf

Office of the Secretary
Service Date
January 19, 2006
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF
HILL VIEW DEVELOPMENT
CORPORATION TO OBTAIN WATER
SERVICE TO COVENANT HILL
SUBDIVISION, AN AREA WITHIN THE
CERTIFICATE BOUNDARIES OF BOTH
EAGLE WATER COMPANY AND UNITED
WATER IDAHO INc.
PETITION
CASE NO. EAG-O5-
UWI-O5-
ORDER NO. 29956
On October 7, 2005 , Hillview Development Corporation (Hillview) filed a Petition
with the Idaho Public Utilities Commission (Commission) requesting water service to Covenant
Hill subdivision, an area located at 1501 and 1601 West Floating Feather Road in Eagle, Idaho.
The site is 48.54 acres and has been approved by the Eagle City Council for development of 41
single-family lots. As platted the Covenant Hill subdivision fell within the certificated service
areas of Eagle Water Company and United Water Idaho Inc. Reference Eagle Water Certificate
No. 278; United Water Certificate No. 143.
On October 19, 2005 , the Commission issued a Notice of Petition and Proposed
Order in Case Nos. EAG-05-3 and UWI-05-3 finding Hillview s request for a single water
provider to the Covenant Hill subdivision to be reasonable and finding that the public
convenience and necessity would be served by authorizing water service to Covenant Hill
subdivision by United Water Idaho Inc. IDAPA 31.01.01.312. Comments on the Commission
Proposed Order were filed by Eagle Water, United Water, Commission Staff, Idaho Department
of Environmental Quality and the developer, Hillview.
On December 13 , 2005, the Commission issued final Order No. 29929 in Case Nos.
EAG-05-3 and UWI-05-setting forth additional findings, authorizing and directing
United Water to provide potable water service to Covenant Hill subdivision and directing the two
utilities to file amended Certificates of Public Convenience and Necessity and area of service
maps.
On January 3, 2006, the statutory deadline for reconsideration, Eagle Water
Company caused to be filed with the Commission after business hours a facsimile transmission
of its Petition for Reconsideration. Hard copy originals were received by the Commission
ORDER NO. 29956
through u.S. Mail on January 5, 2006, not by overnight mail on the next working day as required
by Commission Rules. Reference Idaho Code ~ 61-626; IDAPA 31.01.01.331.04 and IDAPA
31.01.01.061.02.
As grounds for reconsideration Eagle Water s Petition sets forth the following:
1. Contrary to the Commission s statement at Page 1 of its Order, Eagle
Water has not stated that it could not guarantee adequate service to
Covenant Hill subdivision without 12-inch mainline extension from its
Well No.6. Eagle Water has been ready, willing and able to serve the
Calhoun property (site of the proposed subdivision), since installation of
its Floating Feather water line in 1996. The 12-inch mainline from Well
No.6 is irrelevant to Eagle Water s service of the Covenant Hill
subdivision.
2. Eagle Water never received the August 17 letter allegedly sent to it by
Hillview Development Corporation.
3. Contrary to the Commission s statement at Page 1 of its Order, Eagle
Water has provided a letter from the Eagle Fire Department verifying that
fire flow requirements for the subdivision can be met by Eagle Water.
4. Eagle Water issued a letter on November 4, 2005 providing a cost
estimate for service to Covenant Hill subdivision of$155,405.
5. January 3 letter from Jim Rees, P.
Attached to the Petition as exhibits are copies of November 4, 2005 letter
from Eagle Water Company and letter from Jim Rees dated January 3
2006.
Although disputing specific findings and submitting additional letters not previously
of record, the Petition contains no contention or assertion, as required, that the Commission
Order was otherwise unreasonable, unlawful, erroneous or not in conformity with the law.
Reference IDAP A 31.01.01.331.01. Nor does the Petition state, as required, whether Eagle
Water requests reconsideration by evidentiary hearing, written briefs, comments
interrogatories. Reference IDAP A 31.01.01.331.03.
On January 6, 2006, United Water Idaho Inc. filed an Answer to Eagle Water
Petition for Reconsideration. United Water contends that the recitals of Eagle Water s Petition
do not rise to the level of a specific demonstration that Order No. 29929 is "unreasonable
unlawful, erroneous or not in conformity with the law " nor does the Petition contain a
statement of nature in quantity of evidence or argument the petitioner will offer if
ORDER NO. 29956
reconsideration is granted " all of which United Water contends is required by Commission Rule
of Procedure 331.01.
United Water states that in reliance on the Commission s Order No. 29929, and at the
request of the project developer, United Water has incurred expense in preparation for project
construction. United Water states that it has examined and approved a final water system.
United Water is currently preparing work orders and a mainline extension agreement. These, it
is anticipated, it states, will be available for signature during the third week of January and
construction is expected to commence during the fourth week of January.
While the filing of a Petition for Reconsideration, from a legal point of view, does
not stay the effectiveness of Order No. 29929 (see Idaho Code ~ 61-626), United Water contends
that the pendency of the Petition causes uncertainty for United Water as to whether it should
proceed with planned efforts. United Water requests that the Commission act expeditiously to
deny the Petition.
On January 9, 2006, Hillview Development Corporation, the developer of Covenant
Hill subdivision, made a letter filing with the Commission refuting item by item the grounds for
reconsideration cited by Eagle Water in its Petition for Reconsideration.
1. Item No.1 states "
. . .
The I 2-inch mainline from Well No.6 is irrelevant
to Eagle Water service of the Covenant Hill Subdivision.This statement
is absolutely false. In our letter of November 25 2005, we correctly
pointed out to the Commission that if this were truly the case then DEQ
would not continue to condition the "Will Serve Letter" acceptance on
Eagle Water s assurances of the timing of the construction for the offsite
12-inch loop from Eagle Water s Well No.6. Please see DEQ's letter
dated November 21 , 2005. This certainly indicates that for final DEQ
approval of Covenant Hill, the Eagle Water offsite 12-inch loop is
necessary.
2. Item No.2 states Eagle Water never received the August 17th letter
allegedly sent to it by Hillview Development Corporation.This is an
odd assertion by Eagle Water. Hillview Development has not alleged that
it sent a letter to Eagle Water on August 17th. The letter in question was
from Tomlinson Consulting, Inc and was hand delivered by Richard
Tomlinson to Eagle Water s office. A copy was also hand delivered by
Richard Tomlinson to MTC Inc. (Eagle Water s engineer). Mr. Jim Rees
of MTC Inc. acknowledges receipt of the letter from Richard Tomlinson
and has had several discussions with him about the letter. Why Eagle
Water does not acknowledge receipt of the letter we can only speculate.
Also, the letter was merely a summary of the items that were discussed
with Eagle Water s president, Robert DeShazo, in a meeting on August
ORDER NO. 29956
, 2005. Additionally this letter was included in our submittal to the
PUC on October 5, 2005 therefore Eagle Water most certainly had
reviewed it by then. Even in the PUC staff comments on November 9
2005 , the PUC mentions they previously discussed with Eagle Water
issues which were essentially the substance of the letter submitted to
Eagle Water on August 172005.
3. Item No.3 references "
. ..
a letter from Eagle Fire Department verifying
that fireflow requirements for the subdivision can be met by Eagle
Water.The only letter we can find in the record from Eagle Fire
Department that was submitted to the PUC by Eagle Water is a letter
from the Eagle Fire Department to Eagle Water on November 10, 2005.
This letter does not contain any reference to Covenant Hill Subdivision.
It addresses a fire flow test from October 2002, in a subdivision (Clear
Creek Crossing) which is approximately 3/4 of mile east of the proposed
entrance to Covenant Hill. This fire flow may be unreliable as there have
been numerous connections made to the Eagle Water system since
October 2002.
4. Item No.4 references a letter issued" . . . on November 2005, providing a
cost estimate for service to Covenant Hill Subdivision.
. . .
" This is the
first time we have seen this letter. If it were truly issued on November 4
2005 , we would like to know to whom it was issued, and why it was not
submitted to the PUC along with the numerous submittals made by Eagle
Water to the PUC after November 4 2005, and prior to the PUC's Final
Order of December 13 2005.
5. Item No.5 references a letter from Jim Rees. This letter acknowledges
that Hillview Development did not get a "will serve" letter from Eagle
Water due to DEQ's concerns. It also acknowledges that" . . Service to
Covenant Hill Subdivision would not adversely affect water supply or
cause undue hardship to existing Eagle Water customers if the loop to
well Six (6) is completed." This statement actually confirms that the
offsite loop is most certainly necessary to serve Covenant Hill and
counter to Eagle Water s claim in Item No. I of their grounds for
reconsideration that "
. .
The 12-inch mainline from Well No.6 is
irrelevant.
Hillview Development Corporate states that it is now January 2006 and it continues to be
delayed by Eagle Water due to their last minute request for reconsideration. Hillview states that
it has final design plans completed and has final bids for the entire Covenant Hill project. It has
commenced construction on the site. However, it contends, that is not being allowed to finalize
its contract with United Water until the Commission s (reconsideration) decision is made.
ORDER NO. 29956
The Commission has reviewed the filings of record in Case Nos. EAG- W -05-3 and
UWI-05-3 including its final Order No. 29929, Eagle Water s Petition for Reconsideration
and the related filings of United Water Idaho and Hillview Development Corporation. The
Commission on multiple grounds described above finds Eagle Water Petition for
Reconsideration to be procedurally defective. The Commission further finds addressing the
merits of the Petition that Eagle Water makes no persuasive offer of proof and identifies no
grounds supported by specific explanation to warrant reconsideration of final Order No. 29929.
In our Order issued on December 13 2005 , we found that Eagle Water was unable to
satisfy DEQ's minimum peak hour demand requirement. Reference IDAPA 58.01.08.550.03.
, "
With any source out of service, the remaining source or sources should be capable of
providing either the peak hour demand of the system or maximum daily pumping demand plus
equalization storage." We were accordingly unable to find that the requested service could be
provided without adversely affecting the water supply of or otherwise causing an undue hardship
on the Company s existing customers. We also found the conditional commitment of the
Company to provide service based on its ability at some future date to demonstrate compliance
with minimum state requirements to be unacceptable and not equivalent to being presently
ready, willing and able" to serve.Contrary to Eagle Water s representation in Petition
Paragraph 1 that it is ready, willing and able to serve Covenant Hill subdivision, we find the
facts to be otherwise. We continue to find our Order No. 29929 to be well reasoned, supported
by the record and facts and in the best service of the public interest.
CONCLUSIONS OF LAW
The Commission has jurisdiction over Eagle Water Company and United Water
Idaho Inc., public water utilities, and the service issues raised in this case pursuant to Idaho
Code, Title 61 and the Commission s Rules of Procedure. IDAPA 31.01.01.000 et seq.
ORDER
In consideration of the foregoing and as more particularly described above, IT IS
HEREBY ORDERED and the Commission does hereby deny Eagle Water Company s Petition
for Reconsideration of Order No. 29929.
THIS IS A FINAL ORDER DENYING RECONSIDERATION.Any party
aggrieved by this Order or other final or interlocutory Orders previously issued in this Case No.
may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho
Appellate Rules. See Idaho Code ~ 61-627.
ORDER NO. 29956
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this /9.f1,.
day of January 2006.
iJ
MARSHA H. SMITH, COMMISSIONER
ATTEST:
~JC)je D. Jewell
Commission Secretary
O:EAG-05-03 UWI-05-03 sw3
ORDER NO. 29956