20030723Comments.pdf

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DONALD L. HOWELL, II
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 3366
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Street Address for Express Mail:
472 W. WASHINGTON
BOISE, IDAHO 83702-5983
Attorney for the Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
UNITED ELECTRIC CO-OP, INC. AND THE
CITY OF HEYBURN FOR AN ORDER
APPROVING A SERVICE TERRITORY
AGREEMENT PURSUANT TO IDAHO CODE
~ 61-333(1).
CASE NO. GNR-O3-
COMMENTS OF THE
COMMISSION STAFF
COMES NOW the Staff of the Idaho Public Utilities Commission, by and through its
attorney of record, Donald L. Howell, II, Deputy Attorney General, and submits the following
comments in response to Order No. 29280 issued on July 7, 2003.
APPLICATION
On June 20, 2003, United Electric Co-op, Inc. and the City of Heyburn filed an
Application for approval of a service territory contract pursuant to the Idaho Electric Suppliers
Stabilization Act (ESSA). United is the successor entity following the consolidation of Rural
Electric Company and Unity Light & Power. Both United and the City supply electric service to
STAFF COMMENTS JULY 23 , 2003
their respective consumers in adjacent and contiguous service territories. Idaho Code ~ 61-
332A(4).
The parties ask that the Commission approve their "Service Area Stabilization and
Wheeling Agreement" dated February 14, 1996. In the Agreement, United's predecessor Rural
Electric and the City agreed to establish separate service territories for each party in Minidoka
County. The Agreement also addressed the exchange of five customers and United agreed to
transfer distribution facilities serving the exchanged customers. Exhibit No., ~~ 1-, 4. One
customer moves from United to the City and four customers will move from United to the City
when the City annexes the underlying properties. Id. at ~l (C) and (E). The Agreement provided
that the City shall have the right to install its own streetlights, pumps and other facilities for the
delivery of city services located within United's service territory. Id. at ~5. United also agreed to
deliver electric service to the City s facilities within United's service area.
The Application states that the Agreement was negotiated to settle and establish service
territories between the parties, to provide stability and safety in service to consumers, and to
eliminate duplication of services. Application at ~3. Because the Agreement predated the 2000
amendments to the ESSA, the parties now request that the Commission approve the Agreement.
STAFF COMMENTS
In December 2000 and February 2001 , the Idaho Legislature amended portions of the
ESSA. In particular Idaho Code ~ 61-333 was amended to provide that all service agreements
that allocate territory or customers between electric suppliers be filed with the Commission. Idaho
Code ~ 61-333(1) now provides in pertinent part that
the commission shall after notice and opportunity for hearing, review
and approve or reject (such) contracts... between municipalities and
cooperatives... .the commission shall approve such contracts only upon
finding that the allocation of territories or consumers is in conformance
with the provisions and purposes of this act.
Idaho Code ~ 61-333(1) (2001). As set out more fully in Idaho Code ~ 61-332, the purposes of
the ESSA are to: (1) promote harmony among and between electric suppliers; (2) prohibit the
pirating" of consumers served by another supplier; (3) discourage duplication of electric
STAFF COMMENTS JULY 23 2003
facilities; (4) stabilize the territory and consumers served by the suppliers; (5) actively supervise
certain conduct of the suppliers.
The Agreement appears to provide the least cost service option for customers and complies
with the ESSA by drawing boundaries that identify each supplier s service territory. Staff believes
that the Agreement contained in this Application fulfills the purposes and provisions of the ESSA
that have been previously stated.
With regard to the transfer of customers discussed in the agreement, United Electric Coop
has provided the following updated information. The single customer who was to be transferred
from Rural (i., United) to the City of Heyburn (Paragraph 1.C) was never transferred because the
house was removed. The single customer who was to be "temporarily" transferred from United to
the City (Paragraph 1.D) was not transferred, even on a temporary basis, because it was decided to
not extend the "neutral" line, which would have caused the unsafe clearance condition. Finally,
the four customers in the City s service territory that were being served by United (Paragraph 1.
are still being served by United because that area has not yet been annexed by the City, which is a
provision in the Agreement. Under these latter circumstances, an exception to the anti-pirating
provision of the ESSA appears reasonable if the transfer were to occur when considering the
purposes of the ESSA. Idaho Code ~ 61-334 B(l).
Finally, Staff notes that Paragraph 18 of the Agreement provides that the prevailing party
to the Agreement may recover reasonable attorney fees if that party commences an action to
enforce the Agreement. At the time this Agreement was executed in 1996 Idaho Code ~ 61-334B
provided that any supplier whose rights under the ESSA are in jeopardy, may bring suit in district
court. This section was repealed and amended in December 2000 and February 2001.
Idaho Code ~ 61-334A now provides that an aggrieved customer or supplier "may file a
complaint with the Commission" and the Commission shall resolve the matter. See Idaho Code
~~ 61-334A(2-3); 61-334B(3). In other words, resolution of disputes was removed from the
court's jurisdiction and was to be submitted to the Commission. Under the Public Utilities Law
the Commission does not have authority to award attorney fees other than intervenor funds
pursuant to Idaho Code ~ 61-617 A. See Idaho Power Company v. Idaho PUC, 102 Idaho 744
639P.2d 442 (1981).
STAFF COMMENTS JULY 23, 2003
STAFF RECOMMENDATION
Staff recommends approval of the Agreement.
Respectively submitted this 23Jday of July 2003.
Donald L. H ell, II
Deputy Attorney General
Technical Staff: Keith Hessing
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STAFF COMMENTS JULY 23 , 2003
CERTIFICATE OF SERVICE
HEREBY CERTIFY THAT I HAVE THIS 23RD DAY OF JULY 2003
SERVED THE FOREGOING COMMENTS OF THE COMMISSION STAFF IN CASE
NO. GNR-03-, BY MAILING A COpy THEREOF POSTAGE PREP AID, TO THE
FOLLOWING:
WILLIAM A. PARSONS
PARSONS SMITH & STONE LLP
PO BOX 910
BURLEY ID 83318
STEVEN A TUFT
ATTORNEY AT LAW
PO BOX 759
BURLEY ID 83318
SECRETARY
CERTIFICATE OF SERVICE