20060804UWI to Staff 4.pdf

McDevitt & Miller LLP
Lawyers
[phone]
[phone] (Fax)
420 W. Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
Chas. F. McDevitt
Dean 1. (Joe) Miller
August 4, 2006
Re: Case No. UWI~ W ~06~
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1-1'a Hand Delivery
JeanJewell, Secretary
Idaho Public Utilities Commission
472 W. Washington St.
Boise, Idaho 83720
Dear Ms. Jewell:
Enclosed for filing in the above matter please find three (3) copies of United Water
Idaho s Response to Commission Staff's Second Production Requests.
An additional copy of the document and this letter is included for return to me with your
file stamp thereon.
DJMlhh
End.
OR\G\NAL
Dean J. Miller (ISB No. 1968)
MCDEVITT & MILLER LLP
420 West Bannock Street
O. BOX 2564-83701
Boise, Idaho 83702
Tel: [phone]
Fax: [phone]
ioe(ii),mcdevitt- miller .com
RECEIVED
200G AUG -4 ~M 9: 28
IDAHO PUBLIC
UTIL\TIES COMMISSION
Attorneys for United Water Idaho Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF UNITED WATER IDAHO INc., TO
AMEND AND REVISE CERTIFICATE OF
CONVENIENCE AND NECESSITY NO 143
UNITED WATER IDAHO INC'
RESPONSE TO COMMISSION
STAFF'S SECOND PRODUCTION
REQUESTS
CASE NO. UWI-O6-
United Water Idaho Inc, by and through its undersigned attorneys, hereby submits its
Response to Commission Staffs Second Production Requests as follows:
REQUEST NO.In response to Staffs Request No.2 to the City of Eagle, the City
submitted a map labeled as Exhibit 2 showing existing City-owned facilities as well as proposed
facilities that would be added to serve the Trailhead development and adjacent areas. The map
references item # 5 as the Floating Feather Well (existing). Please clarify United Water
ownership interest in the Floating Feather Well and describe any agreements United Water has
with the City of Eagle for utilization of the Floating Feather Well. Please provide copies of all
written agreements and correspondence between United Water and the City of Eagle and/or the
manager operator of the City water system related to the Floating Feather Well. Should the City
have rights to use Floating Feather water, has the City ever utilized such rights? Please provide
supporting data.
UNITED WATER IDAHO INC'S RESPONSE TO COMMISSION STAFF'S SECOND PRODUCTION REQUESTS-
RESPONSE TO REQUEST NO.
United Water Idaho (United Water) has complete ownership interest in all ofthe water
facilities known as the Floating Feather Well. The well was constructed in 1995 under United
Water s Capital Expenditure Authorization No. 95-650, and was paid for by United Water.
United Water holds a 100-year lease for the land on which the well is located from Roger and
Elizabeth Crandlemire, dated May 25, 1995. The City of Eagle (Eagle) has no ownership or
investment in United Water s Floating Feather Well. United Water has always paid and
continues to pay all purchased power, chemical, and associated operating, maintenance and
improvement costs for the well, while Eagle has never paid any of these costs.
United Water holds water right License No. 63-11090A, Permit No. 63-12452, and
Permit No. 63-12192 all of which identify the Floating Feather Well as a point of diversion
within the integrated United Water system.
Eagle holds a water right License No. 63-12448. In 1998 Eagle applied to the Idaho
Department of Water Resources to add the Floating Feather Well as an alternate point of
diversion addition to its Lexington Hills Well #1 and #2. Water right License No. 63-12448 is
used by Eagle to operate its Lexington Hills Wells, but does not give Eagle any ownership
interest in the Floating Feather Well, nor does it grant Eagle any particular right to use United
Water s Floating Feather Well. United Water did not oppose Eagle s addition of Floating
Feather Well as a point of diversion to their water right, but made it clear that actual use ofthe
Floating Feather Well by Eagle was dependent upon execution of appropriate agreements.
Attached is a copy of a letter from United Water to the Department of Water Resources (copy to
Eagle) dated December 7, 1998 that references Eagle s Application. The letter plainly states that
United Water owns the Floating Feather Well and that any use of the well by Eagle would have
UNITED WATER IDAHO INC'S RESPONSE TO COMMISSION STAFF'S SECOND PRODUCTION REQUESTS- 2
to be accomplished via an appropriate agreement. Since the approval of the alternate point of
diversion in 2000 United Water and Eagle have not entered into any agreements granting the
City any right to use the Floating Feather Well.
There are two written agreements between United Water and Eagle relating to water use
(see attached "Agreement To Provide Supplemental Water For Fire Flows" dated August 1 , 1997
and "Agreement" dated December 2, 1997, which cover fire protection water and emergency
back-up water use from the United Water system in support of the Eagle water system. The
Commission acknowledged and accepted the Supplemental Fire Flow agreement by Order No.
27121 in Case No. UWI-97-
Although the Supplemental Fire Flow agreement anticipated Eagle being billed for water
use through a meter, no such metering point was ever installed because of the concern that a
meter could fail and render service unavailable at a time when it was most critically needed, such
as during a fire. Additionally, a meter at the initiation of Eagle s 12-inch main near the Floating
Feather well was unfeasible since United Water constructed it's 16-inch main (Northwest
Pipeline) connecting to the eastern end of Eagle s 12-inch main in Floating Feather in order to
transmit water to the rest of United Water s West Main service level. Instead the parties reached
an understanding in which United Water would charge it's approved tariff rate for fire service
connections, in this instance a 12-inch connection near North Park Forest, and later an 8-inch at
the entrance to Brookwood.
The second agreement ("Agreement") called for United Water to provide emergency
back-up water to Eagle. In consideration ofthe provision of emergency back-up water, Eagle
allowed United Water to convey water to and through Eagle s 12-inch main in Floating Feather
Road to the rest of United Water s system east of Eagle s system. In early 2005 United Water
UNITED WATER IDAHO INC'S RESPONSE TO COMMISSION STAFF'S SECOND PRODUCTION REQUESTS- 3
completed installation of its own 16-inch main line in Floating Feather Road from its Floating
Feather Well to its main (Northwest Pipeline) situated in Floating Feather west of North Park
Forest Road, thus paralleling Eagle s 12-inch main, in order to improve flows to United Water
system. At that time the inter-ties with the Eagle system were transferred from Eagle s 12-inch
main to United Water s 16-inch main and Eagle s 12-inch main was dedicated solely to Eagle
use. Because of the construction of these facilities, the agreement has largely been superseded
by subsequent events and is no longer operationally significant.
There have been two occasions in which Eagle s Lexington Hills Well pump failed, once
in February 2004 and again in May 2006, during which time United Water supplied water to the
Eagle system until repairs were made to the Eagle well.
United Water does not maintain records of fire events within the Eagle system and thus
has no information as to the use of water for fire protection purposes.
DATED this day of August , 2006.
Respectfully submitted
McDEVITT & MILLER LLP
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Attorneys for United Water Idaho Inc.
UNITED WATER IDAHO INC'S RESPONSE TO COMMISSION STAFF'S SECOND PRODUCTION REQUESTS- 4
. . '.. .
RECEIVED & FILEDCITY OF EAGLE
JUt 1 ~ 1997
AGREEMENT TO PROVIDE SUPPLEMENTAl WATER FOR FIRE FlO S
This Agreement to Provide Supplemental Water for Fife Rows (U1is "Agreemen . W~~i~first day of Augus~ 1997 by and between THE CITY OF EAGLE CITY, a municipal corpoa~' )1 whose address is 310 East Stale Street, Eagle, Idaho 83616, and UNITED Vl!ATER 10Idaho corporation ("United Water'), whose address is P.O. Box 7488, Boise, Idaho 83709.
RECITALS:
United Water provides domestic, commercial. and fire flow water in the Eagle, Idahoarea and is a public utility wiUlin the meaning of the Idaho Public Ublity law.B. Eagle desires to obtain an additional source of waler, including for fire protectionpurposes, to serve Eagle.C. United Water is willing and able to make quantities available to Eagle during each monthof the year for the tenn hereof, as provided further herein.
NOW, THEREFORE, in consideration of the mutual promises. and covenants herein contained, tobe kept and perfonned by the parties, and for other good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged by the parties, ~ is mutually agreed as follows 10 wit
1. Provision of Water.United Water agrees to provide to City additional water andsupplemental fire flow as hereinafter set forth. Said flow shall be provided on August 1 , 1997 or within areasonable time after approval by the Idaho Public Ublities Commission (8'PUC.) of such provision byUnited Water. Water for fire flow shall not be less than One Thousand Ave Hundred (1 500) gallons perminute measured at the hydrant nearest to the point of diversion of such water flow from United Water toCity. United Water shall provide such flow by tying to City's water system at United Water's FloatingFeather Well.
2. Payment:City will pay, as billed monthly, for actual flow through the meter, at themetered tariff rates then allowed to United Water by the IPUC for such provision.
3. Assistance by City. City agrees to use its best efforts to aid and assist United Water inobtaining IPue approval, as required or as helpful for such approval or to speed such approval. Theparties acknowledge that City cannot force said entities to provide such consents, and the onlyrequirement hereof is that City reasonably use its best efforts to such e!1d.
4. Term. The term of this Agreement shall be for one year from and after the date abovewritten, during which term this Agreement may not be terminated by either party. Thereafter. theAg reement shall be deemed automatically extended for successive one-year periods unless terminated asherein provided. Eagle may terminate this Agreement by providing written notice of intention to soterminate at least twelve months prior to the proposed termination. United Water may terminate this
Agreement by providing written notice of intention to so terminate at least twetve months prior to theproposed tennination.
5. Interruptions: United Water shall use reasonable care and diligence to prevent
interruptions and fluctuations in delivering the water provided for in this Agreement. Both parties agreethat they will make no claim against each other for damages in the event United Water is unable to deliver
water because of tile need to make repairs for breaks or leaks or OHler repairs to its facilities, or becauseof other causes beyond its control. United Water agrees thaI any necessary repairs or maintenance shallbe scheduled so as to minimize disruption to Eagle. Further, il repairs or maintenance are necessar/.United Water will provide to Eagle reasonable advance notice of tile need to make repairs and sllal1complete said repairs or maintenance in a timely and workmanlike manner.
Agreement. 1
uwi\eagle\water agr
EXHIBIT
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6. Indel11l1iw. EDCIl of UIC pm tics hereto agrees to indemnify and hold hamdess the oU1erparty from and against all actions suits proceedings, judgments, costs and expenses relating to anyclaims arising in connection with the subject matter hereof prior to U1e execution of this Agreement
Notices:All notices required or desired to be given under Ulis Agreement shall be inwriting and delivered personally or sent by facsimile or by first class United States mail, postage prepaidaddressed as follows:
Agreement - 2
uwi\eagte\waler .agr
If to Eagle:
310 East Stale Street
Eagle. Idaho 83616
2081939-6813
208/939-6827 (facsimile)
Alto: City Clerk
If to Uniled Water.
United Water Idaho Inc.
O. Box 7488
Boise, Idaho 83709
208/362-1704
2081362-3858 (facsimile)
Miscellaneous:
Enforcement The failure on the part of any party to enforce its rights as to any
provision of the Agreement shall not be construed as a waiver of such party or partiesrights to enforce such provision in the future.
AssiQnment.This Agreemen~ and the terms hereof, are binding on the partiesnamed herein, their heirs, suCCessors, and assigns. This Agreement shall not be
assigned without Ule written consent of the other parties hereto not to be
unreasonably wiU1held; provided however, U1at if the business of United Water istaken over by or transferred to a successor company. such shall not be deemed anassignment hereunder. United Water agrees to give Eagle prompt written notice ofany such change in ownership.
Entire AQreement This Agreement contains the entire agreement between the
parties hereto in connection with the transactions contemplated herein and
supersedes all previous or contemporaneous communications, representations or
agreements. This Agreement may be modified only by written amendment signed byall parties.
Severability. If any section, subsection , sentence, clause, phrase or portion of thisAgreement is for any reason held invalid, preempted or unconstitutional by any court
or by any Federal or Slate agency of competent jurisdiction, such portion shall bedeemed a separate, distinct and independent provision of this Agreement, and suchholding shall not affect the validity of the remaining portions hereof.
6QP.Jication of Law. This Agreement is subject to all applicable laws
of the State ofIdaho.
Survival.The terms, representations, provisions, covenants, agreements andindemnities shall remain binding upon and for the parties hereto until fully observedkept or periormed.
. _.- ~
!\ulhorilY. The par lies herclo represent and corlli'lII Ulal Ihey have lhe :JUUlOrily 10execule lhis Agreement on Uleir behalf and on behalF of the olher persons named
herein, a/UlOugh Ulose persons may not have executed this Agreement
Counterparts. This Agreement may be executed in counterparts, each of which shall
consUtute an original, but all togeU\ef shall consUlule one and the same Agreement
IN WITNESS WHEREOF, Ole undersigned have executed this Agreement as of the date first abovewritten.
CITY OF EAGLE
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Agreement - 3
uwi\eagle\waler.agr
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AGREEMENT
This Agreement is made thib1.ad- day of OR'Nvro i:u1"/1997, by and between the City of Eagle, an
Idaho municipal corporation (herein called "City"), and United Water Idaho Inc., an Idaho corporation
(herein called "UWID"
RECITALS
A. City is the owner of a municipal, domestic water transmission and distribution system in
the City of Eagle (hereinafter called the "System ). The geographical boundaries of the System are shown
on Exhibit A, attached hereto and made a part hereof, which geographical boundaries of the System may
be amended by the City from time to time.B. UWID is engaged in the business of owning, operating and managing a potable water
systems, and delivering potable water. UWID owns and operates a potable water reservoir commonly
known as the Hidden Hollow reservoir (the "Reservoir
C. City desires to have UWID provide such emergency back-up water to City and UWID
desires to provide emergency back-up water to City.D. Conveyance of emergency back-up water to City from the Reservoir will require that
UWID convey potable water to and through the System. City desires to have UWID convey such
emergency back up water to City from the Reservoir to and through the System.
NOW, THEREFORE, in consideration of the recitals above which are incorporated below, the
mutual terms, conditions, covenants and agreements contained herein, the parties hereto agree as follows:1. In consideration of conveyance of emergency back-up water to City from the Reservoir
City hereby grants to UWID, and to its successors and assigns, the exclusive right and privilege, for a
period of thirty (30) years from the first day following the hereof, to convey potable water to and through
the System, all subject to the terms and conditions hereinafter specified.2. The System shall be constructed and at all times maintained in good order and condition
and in accordance with standard engineering practices and all applicable safety codes and lawful
governmental regulations, including all applicable local , state, and federal regulations.3. UWID shall at all times indemnify and hold City, its officers, employees and agent
harmless from any and all expenses or liability arising from or by reason of any negligent act or omission
of UWID, its agents or employees, in conveying water to and through the System.4. Before UWID shall have any rights hereunder, UWID shall file with City Clerk a certificate
of insurance evidencing general liability insurance which covers claims for bodily injury, property damage
and personal injury. Such insurance shall have minimum limits of $1 000 000 per occurrence. City of
Eagle shall be named as an additional named insured under UWID's insurance policy. Should the
minimum limits of insurance as set forth herein be increased above $1 000,000, pursuant to the Idaho Tort
Claims Act (Idaho Code Section 6-901 , et. seq.) or any similar legislation, UWID shall, upon City s request,
be required to provide City with a new certificate of insurance evidencing such higher limits.5. This Agreement shall at all times be subject to all rules, regulations and orders that may be
lawfully prescribed by the IPUC or by any other governmental authority now or hereafter having
jurisdiction over such matters.
AGREEMENT - 1
UWI\eagie\reser.agr
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6. City and UWIO acknowledge that delivery of water other than water controlled by City
and/or UWIO is undesirable and agree that City shall not grant a permit, license or other agreement for the
use of the System to another water service provider during the term of this Agreement.7. In the event of an amendment to the laws, rules or regulations of City, the State of Idaho,
or the IPUC applicable to this Agreement, or for periodic review of any section of this Agreement, the
terms of this Agreement and the rights and privileges hereby conferred may be changed, altered, amended
or modified upon mutual agreement between City and UWID to carrying out the intent of this Agreement.
In all cases, sixty (60) days notice shall be required on the part of City or UWID to reopen the Agreement
pursuant to this section.
8. Sale, assignment, lease or other transfer of this Agreement by UWID may occur only
subsequent to notification to City. Sale of the System by City shall be subject to the terms of this
Agreement.
GENERAL PROVISIONS.a. All notices, demands, requests, and other communications under this Agreement shall be
in writing and shall be deemed properly served or delivered, if delivered by hand to the party to
whose attention it is directed, or when sent, three (3) days after deposit in the U.S. mail, postage
prepaid, by registered or certified mail, return receipt requested, or if sent by facsimile to the party
to whose attention it is directed, addressed as follows:
If to City:The City of Eagle
Attn: Mayor
City Hall
310 E. State Street
Eagle, 10 83616
[phone]
[phone](facsimile)
If to UWfD:United Water Idaho Inc.
Attn: President
8248 W. Victory Road
Boise, Idaho 83707
[phone]
[phone] (facsimile)
or at such other address or to such other party which any party entitled to receive notice
hereunder designates to the other in writing as provided above.b. Upon reasonable request by City, UWID shall send a representative to any particular
meeting of City s Council and shall provide City with quarterly reports of activities in connection
with conveying water to and through the System.c. The failure on the part of either party to enforce its rights as to any provision of the
Agreement shall not be construed as a waiver of its rights to enforce such provision in the future.d. If any party shall fail to perform such party's obligation(s) contemplated herein for any
reason, one or more of the other parties may pursue any and all remedies at law or equity;
provided, however, all parties affected by any default agree to attempt to mediate a settlement in
good faith prior to initiating litigation. In the event litigation is filed, the prevailing party or parties
shall be entitled to an award of reasonable costs and attorneys' fees.
AGREEMENT - 2
UWI\eagle\reser.agr
...
e. If any section, subsection, sentence, clause, phrase or portion of the Agreement is for any
reason held invalid, preempted or unconstitutional by any Federal or State court of competent
jurisdiction, such portion shall be deemed a separate, distinct and independent provision of the
Agreement, and such holding shall not affect the validity of the remaining portions hereof.
City.
The Agreement is subject to all applicable laws of the State of Idaho and ordinances of
g.
The terms, representations, provisions, covenants, agreements and indemnities shall
remain binding upon and for the parties hereto until fully observed, kept or performed.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first
above written.
CITY OF EAGLE, an Idaho municipal corporation UNITED WATER IDAHO INc., an Idaho
corporation
By:
Mayor William C. Linam, President
ATTEST:
By:
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AGREEMENT - 3
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EXHIBIT A
Geographical Boundaries
City of Eagle Water System
Commencing at the section comer common to Sections 4, 5, 8 and 9, Township 4 North,
Range 1 East, Boise Meridian, Ada County, Idaho, the REAL POINT OF BEGINNING~
thence easterly along the section line common to Sections 4 9 and 10 approximately 2
miles to the section comer common to Sections 2, 3, 10 and 11, Township 4 North, Range
1 East, Boise Meridian, said point being the centerline of State Highway 55;
thence northwesterly along said centerline of State Highway S5 approximately 3/4 mile to
a point on the north line of the south half ofthe north half of said Section 3, Township 4
North, Range 1 East, Boise Meridian;
thence westerly along said north line of the south half of the north half of Section 3
approximately 3/4 mile to the common north-south section line of Sections 3 and 4
Township 4 North, Range 1 East, Boise Meridian~
thence southerly along said north-south section line of Sections 3 and 4 approximately 1/4
mile to the 1/4 comer common to said Sections 3 and 4, Township 4 North, Range 1 East
Boise Meridian~
thence westerly along the east - west half section line of said Section 4 approximately 1/8
mile to the centerline of Dry Creek;
thence southwesterly along said centerline of Dry Creek approximately 5/8 mile to the
west line of the east half of the west half pf said Section 4, Township 4 North, Range 1
East, Boise Meridian~ .
thence southerly along said west tine of the east half of the west half of Section 4
approximately 3/8 mile to the north line of the so~th half of the sou~h half of said Section
, Township 4 North, Range 1 Em, Boise Meridian~ . "
thence westerly along said north line of the south half of the south half of Section 4
approximately 1/4 mile to the common north - south section line of said Sections 4 and S
Township 4 North, Range lEast, Boise Meridian~
thence southerly along said north - south section line of Sections 4 an~ 5 approximately
1/4 mile to the section comer common to Sections 4~.5, 8 and9, Township 4 North,
Range 1 East, Boise Meridian, the REAL POINT OF BEGINNI~G~
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United Water ~'c
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December 7, 1998
RECEIVED
DEC 0 8 1998
WATER RESOURCES
WESTER~~ REGION
United Water Idaho
8248 West Victory Road
PO Box 7488
Boise, 1083707-1488
telephone [phone]
facsimile 208-362-1479
Mr. Gary Spackman
Regional Manager
Western Regional Office
Idaho Department of Water Resources
2735 Airport Way
Boise, ID 83705-5082
Subject: City of Eagle, Idaho Water Right No. 63-12448 (1998)
Dear Gary:
I am writing on behalf of United Water Idaho (UWID) in reference to the application
filed last Friday by the City of Eagle for Amendment of Permit for Water Right No. 63-
12448.
UWID owns the Floating Feather well, which the application seeks to add as an
additional point of diversion for Eagle s water right. UWID also owns certain water
rights, which utilize the Floating Feather well as a point of diversion. I write to confirm
that UWID has no objection to the City of Eagle including the Floating Feather well as an
alternative point of diversion for its water right, so long as it is understood by all that this
does not, in itself, entitle the City to pump ITom Floating Feather well. In other words
the City s use ofUWID's well is subject to its entering into the appropriate agreements
with UWID.
sinc~
E J
Ed Squires
Mayor Rick Yzaguirre, City of Eagle
Susan E. Buxton, Moore & McFadden
Christopher H. Meyer, Givens Pursley
CERTIFICATE OF SERVICE
I hereby certify that on the day of August, 2006, I caused to be served, via the
methodes) indicated below, true and correct copies of the foregoing document, upon:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83720-0074
i iewe11(tp,puc.state.id. us
Hand Delivered
S. Mail
Fax
Fed. Express
Email
1.....11
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City of Eagle
c/o Bruce Smith
225 North 9th Street, Suite 420
Boise, ID 83702
Hand Delivered 1.....11
S. Mail
Fax 1.....11
Fed. Express 1.....11
Email 1.....11
Hand Delivered 1.....11
S. Mail
Fax 1.....11
Fed. Express 1.....11
Email 1.....11
Scott Woodbury
Deputy Attorney General
472 W. Washington Street
Boise, ID 83702-5983
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UNITED WATER IDAHO INC'S RESPONSE TO COMMISSION STAFF'S SECOND PRODUCTION REQUESTS- 5