20240625Petition to Amended Interlocutory Order No 36165.pdf

RECEIVED
2024 June 25 PM 3:33
IDAHO PUBLIC
Jennifer Reinhardt-Tessmer (ISB 7432) UTILITIES COMMISSION
Ashton G. Ruff (ISB 12220)
KIRTON MCCONKIE
1100 W. Idaho St., Ste. 930
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Dry Creek Water Company LLC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
INVESTIGATION INTO DRY CREEK ) CASE NO. DRY-W-24-01
WATER COMPANY, LLC OWNER OF A )
WATER SUPPLY AND DISTRIBUTION ) DRY CREEK WATER
SYSTEM ) COMPANY'S EXPEDITED
PETITION TO AMEND
INTERLOCUTORY ORDER NO.
36195
Dry Creek Water Company, LLC ("Dry Creek" or "Respondent"), in accordance
with the Idaho Public Utilities Commission ("IPUC" or "Commission") Rules 53 and 322,
IDAPA 31.01.01.53 and 31.01.01.322, petitions the Commission to amend interlocutory
Order 36195 ("the Order") to extend the Order's deadline for Respondent's Reply
Comments by four weeks (28 days). Given the impending reply comment deadline of
June 26, 2024, Dry Creek respectfully requests expedited review of this Petition.
I. RELEVANT BACKGROUND
In February of 2017, Dry Creek Water Company was formed to distribute water to
the Homeowners'Association (HOA)of Dry Creek Ranch. On a monthly basis, Dry Creek
DRY CREEK WATER COMPANY'S EXPEDITED PETITION TO AMEND
INTERLOCUTORY ORDER NO. 36195- 1

issues a single monthly bill to the HOA. The HOA, in turn, charges residents of Dry Creek
Ranch for their respective use of the water for potable and irrigation purposes. Dry Creek
does not make a profit on the water distributed to the HOA, and in fact, has historically
operated at a significant loss. Likewise, the HOA does not profit off what is collected for
water expenses from the Dry Creek Ranch residents.
In November of 2022, a Deputy Attorney General, Mr. Hardie, acting on behalf of
IPUC Staff, sent Dry Creek correspondence indicating concerns that Dry Creek was
operating as an unregulated public utility. Over the next —16 months, IPUC Staff
performed an informal investigation, with Dry Creek's cooperation. On May 24, 2024, the
IPUC issued a formal Notice of Investigation (the Order), which provided the case may
be reviewed through written submissions. The Order set forth a deadline for Staff and
public comments of June 12, 2024 and a Respondent reply comment deadline of June
26, 2024. Staff filed its comments on June 12th. No public comments were filed. On
June 24, 2024, Dry Creek retained the law firm of Kirton McConkie as legal counsel in
these proceedings.
II. FAIRNESS AND EFFICIENCY WOULD BE SERVED THROUGH
AN EXTENSION
Counsel of record, Kirton McConkie, was retained yesterday, on June 24, 2024, to
evaluate and respond to Staff's June 12th comments. Upon being retained, Kirton
McConkie contacted Staff's Deputy Attorney General, Mr. Triplett, and requested Staff's
investigative documents, which are forthcoming, but have not yet been received.
Although Staff has worked on its analysis for approximately 18 months, Dry Creek did not
receive Staff's conclusions, or the basis for its conclusions, until it reviewed Staff's
DRY CREEK WATER COMPANY'S EXPEDITED PETITION TO AMEND
INTERLOCUTORY ORDER NO. 36195- 2

comments just 11 days (8 business days) ago. As such, more time is necessary for Dry
Creek and its counsel to appropriately evaluate and respond to Staff's concerns and to
offer any necessary evidentiary support— all of which is critical to fairly inform the IPUC's
decision.
Additionally, more time is necessary to allow communications directly between Dry
Creek's newly retained counsel and Staff and the Deputy Attorney General to further
demonstrate that Dry Creek is not a corporation; it is not dedicated to serving the public;
and it is not operating for a profit but rather at cost, and therefore is not subject to the
Commission's authority.1 Of particular note, Staff's Comments express concern
regarding the bonus depreciation method instituted by the previous administration that
Dry Creek utilized and its potential to interfere with a clear analysis of whether Dry Creek
was operating at cost. The parties would be best served to work through these evidentiary
issues and to allow Dry Creek's counsel to review the evidentiary support and discuss
with Staff and explore potential resolutions, which may be dispositive of the matter. If the
matter can be resolved accordingly, it would be the most efficient course of action going
forward.
III. PROCEDURE
Dry Creek does not request a hearing on its Petition and requests it be processed
under the Commission's Rules of Modified Procedure, by written submissions rather than
by hearing.
1 The threshold question of the Commission's jurisdiction should be resolved before additional matters
are explored regarding Dry Creek's potential status as a water company and whether its invested capital
should be included in rate base. See Staff's Confidential Comments, 5.
DRY CREEK WATER COMPANY'S EXPEDITED PETITION TO AMEND
INTERLOCUTORY ORDER NO. 36195- 3

IV. COMMUNICATIONS AND SERVICE OF PLEADINGS
Communications and other documents relating to this proceeding should be sent
to:
Jennifer Reinhardt-Tessmer (ISB 7432)
Ashton G. Ruff (ISB 12220)
KIRTON MCCONKIE
1100 W. Idaho St., Ste. 930
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
V. REQUEST FOR RELIEF
Dry Creek respectfully requests that the Commission grant Respondent an
additional 28 days to file its reply comments. Given that the current reply comment
deadline is tomorrow, Respondent respectfully requests expedited review of this Petition.
Respectfully submitted this 25t" day of June, 2024.
/s/Jennifer Reinhardt-Tessmer
Jennifer Reinhardt-Tessmer
Attorney for Dry Creek Water Company
DRY CREEK WATER COMPANY'S EXPEDITED PETITION TO AMEND
INTERLOCUTORY ORDER NO. 36195- 4

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 25th day of June, 2024, 1 served the foregoing
document upon the following named parties by the method indicated below, and
addressed to the following:
Idaho Public Utilities Commission: Hand Delivered
Commission Secretary U.S. Mail
Idaho Public Utilities Commission __Overnight Mail
P.O. Box 83720 FAX
Boise, ID 83720-0074 X Email
[e-mail]
Valerie Altig
Legal Assistant for Kirton �cConkie,
Counsel for Dry Creek Water Co., LLC
DRY CREEK WATER COMPANY'S EXPEDITED PETITION TO AMEND
INTERLOCUTORY ORDER NO. 36195- 5