20070914Decision memo.pdf

DECISION MEMORANDUM
TO:CO MMISSI 0 NER KJELLAND ER
COMMISSIONER SMITH
CO MMISSI 0 NER HANSEN
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
FROM:SCOTT WOODBURY
DATE:SEPTEMBER 14, 2007
SUBJECT:CASE NO. UWI-07-02 (United Water) - LANEWOOD ESTATES
MOTION TO VACATE HEARING (SCHEDULING) - CITY OF EAGLE
On January 31 , 2007, United Water Idaho Inc. (United Water; Company) filed an
Application with the Idaho Public Utilities Commission (Commission) requesting authority to
amend and revise its Certificate of Public Convenience and Necessity No. 143, as amended, to
include an area in Ada County, Idaho identified as Lanewood Estates. Idaho Code ~ 61-526;
IDAPA 31.01.01.112. On March 1 , 2007, the City of Eagle filed letter comments with the
Commission apprising the Commission of the City's intent to serve Lanewood Estates, objecting
to United Water s Certificate Application and requesting a hearing.
This matter was originally set for hearing on May 24, 2007. As reflected in the
transcript of proceedings, the City of Eagle and Capital Development requested "that the
Commission stay this matter and notice it for a hearing after (the Commission s) first available
date occurring after August 24, 2007.Tr. p. 9. On August 30, 2007, the Commission issued
Notice of Additional Scheduling and Second Notice of Hearing. The Commission established a
September 17, 2007, simultaneous prefile date for supplemental testimony (i., changes that
have occurred subsequent to May 24, 2007). The Commission also established a September 24
2007 public hearing date.
Motion to Vacate - City of Eagle
On September 13 , 2007 , the City of Eagle filed a Motion with the Commission
requesting that the September 17, 2007 prefile date and the September 24, 2007 hearing date be
vacated. The City requests expedited consideration and pursuant to RP 256.02.b has provided
DECISION MEMORANDUM
actual notice of the Motion by contacting counsel for all parties by telephone and by personal
delivery of the Motion.
Noting that this matter was originally set for hearing on May 24, 2007 , the City
recites that the request for stay at that time by the City of Eagle and Capital Development until
the first available hearing date after August 24 2007 was based on the fact that on May 23,2007
the City of Eagle and Capital Development reached agreement (Annexation and Cooperation
Agreement) on settling this matter. See Motion Exhibit 1. This Agreement was a
memorialization of proceedings at a City of Eagle City Council meeting on May 22, 2007 and
continuing to May 23 , 2007, during which Capital Development agreed to annex into the City
and utilize city water services. See Motion Exhibit 2, Meeting Minutes.
Under the Agreement, the City of Eagle was to withdraw its objections to the
applications filed by Capital Development at Ada County and to provide periodic updates to
Capital Development about the status of water service plans for the development. Capital
Development, in turn, was to "promptly file" an annexation application with the City upon
approval of its applications with the County and to submit "all improvement plans" and "plans
for water service" to the City for expeditious review.
Upon approval of the settlement, the City relates that it immediately filed a letter
with Ada County on May 24 , 2007, withdrawing its objections to the applications filed with the
county. On July 11 , 2007, the City states that the county approved Capital Development's
preliminary plat and related applications. In the intervening period, the City contends that it has
provided status reports on development of water services to Capital Development on
approximately a two-week schedule as set forth in the Agreement.
To date, however, the City reports that Capital Development has not filed any
application for annexation with the City nor submitted any development plans for the City to
review, and specifically has submitted no plan for water services. The City by letter dated
September 13 2007 has requested Capital Development to submit those plans and the annexation
application. Motion Exhibit 3. In its letter to Capital Development the City states: "The City of
Eagle has. . . undertaken in good faith to ensure it had sufficient water rights to serve the
development. This is notice that the City has those water rights and will meet its commitment to
provide service consistent with the Agreement."
DECISION MEMORANDUM
The City of Eagle considers Capital Development to be in breach of the Agreement
entered into in settlement of the present case before the Commission. The City contends that if
the testimony prefile date is maintained and the hearing proceeds, the parties will be required to
incur needless expense. If the Commission chooses to not vacate the testimony prefile date and
hearing date, the City requests that the hearing date be continued for 45 days so that the City may
undertake discovery in the form of depositions of Capital Development, and if necessary, United
Water so that the City may file appropriate testimony in this matter and prepare for hearing.
United Water and Capital Development - Initial Replies
On September 14 , 2007, Initial Replies were filed by United Water and Capital
Development. Both parties urge the Commission to
Require that prefiled supplemental testimony be filed on Monday,
September 17, as previously ordered;
Require that full replies to Eagle s Motion be filed by Wednesday,
September 19 2007; and
Thereafter enter its Order determining whether to vacate the hearing
scheduled for September 24, or alternatively, to receive additional oral
argument on September 24.
In its reply, United Water states: as will "be revealed by Supplemental Pre-filed
Testimony and a full reply to the Motion
The City s Motion is an attempt to divert attention away from the central fact
that the City has been unable to obtain from the Idaho Department of Water
Resources a final non-appealable order approving a water right permit
serve the Lanewood Development and, in consequence, the City has no
present ability to serve the development.
COMMISSION DECISION
The City of Eagle has filed a Motion to Vacate Scheduling and Hearing in Case No.
UWI-07-02 and has requested expeditious consideration of its Motion. Reply comments were
filed by United Water and Capital Development. The respective requests of each are set forth
above. How does the Commission wish to act on the City of Eagle s Motion?
Scott Woodbury
bls/M:UWI-O7-02 sw2
DECISION MEMORANDUM