20090922Reply Brief on Reconsideration.pdf

LISA D. NORDSTROM
Senior Counsel
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An IDACORP Company
September 21,2009
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Re: Case No. IPC-E-08-22
RuleH
Dear Ms. Jewell:
Enclosed for filing please find an original and seven (7) copies of Idaho Power
Company's Reply Brief on Reconsideration in the above matter.
Very truly yours,£~f)'f~
Lisa D. Nordstrom
LDN:csb
Enclosures
P.O. Box 70 (83707)
1221 W. Idaho St.
Boise, ID 83702
LISA D. NORDSTROM (ISB No. 5733)
BARTON L. KLINE (ISB No. 1526)
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707
Tel: [phone]
Fax: [phone]
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Attorneys for Idaho Power Company
Street Address for Express Mail:
1221 West Idaho Street
Boise, Idaho 83702
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MAnER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR
AUTHORITY TO MODIFY ITS RULE H
LINE EXTENSION TARIFF RELATED TO
NEW SERVICE ATTACHMENTS AND
DISTRIBUTION LINE INSTALLATIONS.
)
) CASE NO. IPC-E-08-22
)
) IDAHO POWER COMPANY'S
) REPLY BRIEF ON
) RECONSIDERATION
)
Idaho Power Company (hereinafter "Idaho Powet' or "Company") hereby submits
its Reply Brief on Reconsideration pursuant to the Commission's Interlocutory Order No.
30883, issued August 19, 2009, and Idaho Code § 61-626 and RP 322.
In Interlocutory Order No. 30883, the Commission directed the Ada County
Highway District ("ACHD"), City of Nampa ("Nampa"), and the Association of Canyon
County Highway Districts ("ACCHD") (hereinafter collectively "the Public Road
Agencies" or "PRAs") to file Briefs concerning the legal arguments the Public Road
Agencies have raised in this proceeding. Idaho Power was also given the opportunity to
respond to the Public Road Agencies Briefs. Idaho Powets response is as follows:
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 1
i. Those Who Cause Costs to be Incurred Should Pay Those Costs.
In reading a legal brief, it is difficult not to become immersed in the details of the
various statutes and court decisions discussed in the brief. However, in reviewing the
briefs in this case, it is particularly important not to lose sight of the forest because of
the trees. Idaho Power initiated this proceeding to implement changes to its Rule H in
furtherance of one of the fundamental principles of electric utility regulation; that to the
extent practicable, utilty costs should be paid by those entities that cause the utilty to
incur the costs. This principle is often referred to as "cost-causation" and is one of the
bedrocks of utilty regulation. Idaho Powets Rule H is a good example of how the
Commission exercises its jurisdiction to address a "cost-causation" by requiring those
entities that cause Idaho Power to incur additional costs to pay those additional costs. If
the "cost-causers" do not pay, the electric rates for the utilties' other customers wil be
higher than they would otherwise be. If that result is allowed, Idaho Powets rates are
neither "just and reasonable" as required by Idaho Code § 61-503 nor non-
discriminatory and non-preferential as required by Idaho Code § 61-515.
This principle is not an alien one for PRAs. In the past, they have expressed the
need to assess and recover impact fees from entities that require the PRAs to construct
road improvements. The PRAs, like Idaho Power, have frequently emphasized the
need to have "growth pay its way." The situation is identical when considering recovery
of the costs of mandatory utilty relocations. Growth should pay its way.
Section 10 is new to Rule H. Idaho Power decided to add Section 10 and the
associated definitions contained in Section 1 of Rule H for two reasons. First, Section
10 is intended, to the extent permitted by law, to accomplish exactly what Rule H is
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 2
intended to accomplish, that is to recover costs from those entities that cause the costs
to be incurred.
Second, Idaho Power felt it was necessary to add Section 10 to Rule H because
of increasing concerns relating to public road agencies inappropriately faciltating shifts
of relocation expenses to Idaho Power and its customers. Idaho Power witness David
R. Lowry presented direct testimony describing this recent trend toward shifting
relocation expenses. (Lowry 01, pp. 5-8.) ACHD has acknowledged the cost-shifting
problem in the past. ACHD's Resolution 330, upon which Idaho Powets Section 10 or
Rule H is patterned, is a workable, reasonable approach to the problem. Because there
are so many PRAs in the Company's service area, the Company concluded that the
most practical way to establish a uniform approach across its entire service area was to
include Section 10 in Rule H.
II. Idaho Power Does Not Dispute Public Road Agencies'
Authority to Manage Their Rights-at-Way and Require Relocations.
The PRAs' Briefs can each be separated into two major parts. The first part of
each of the PRAs' Briefs consists of a recitation of the statutes and case law that
describe the jurisdiction of PRAs over their respective rights-of-way and their abilty to
require utilities to relocate utilty facilties previously placed in public rights-of-way. The
cases and statutes cited are the same ones the PRAs identified in their prior comments
in this proceeding. The cases and statutes they cite are straightforward and speak for
themselves. In general, Idaho Power does not dispute the general propositions
presented by the PRAs in this first part of their Brief that:
1. PRAs have exclusive general supervision and jurisdiction overall
highways and public rights-of-way within their highway system and full power to
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 3
establish design standards and establish use standards. (ACHD Brief, p. 3; Joint Brief,
p.2.)
2. Idaho Power only has a permissive right to use the public rights-of-
way for its facilities and if a PRA directs Idaho Power to relocate its facilities to a new
location in the public right-of-way because those facilties "incommode the public," such
order does not constitute a taking of Idaho Powets property. (ACHD, pp. 5-6; Joint
Brief, p. 2.)
Idaho Power respectfully disagrees with the balance of the PRAs' arguments
presented in their Briefs.
II. Section 10 at Rule H Does Not Encroach on the
PRAs' Legal Authority or Operations.
While PRAs assert repeatedly in their Briefs that Section 10 of Rule H would be a
material abridgement of the PRAs' authority and would therefore compromise their
abilty to manage highways and roads, they do not provide any examples of a
fundamental management function of the PRA that wil be adversely affected by Section
10 of Rule H. In the case of the ACHD, it is difficult to see how it could point out any
material problems because Idaho Power and ACHD have operated under Resolution
330, which is very similar to Section 10 of Rule H, for more than twenty years.
As proposed, Section 10 of Rule H allows the three PRAs to continue to: (1) fully
exercise their authority to determine that Idaho Power must relocate its facilities in
public rights-of-way to accommodate road improvements and (2) determine the
percentage, if any, a road improvement will benefit a third part and collect that
percentage from the third party. Under Section 10 of Rule H, Idaho Power wil use the
same percentage the PRA initially used to allocate the costs of the road improvement to
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 4
then allocate the cost of relocation of Idaho Power facilties to the same third parties that
contributed to the costs of the road improvement.
In its Reply Comments, Idaho Power presented a flowchart which shows how the
PRA and the Commission would each exercise its jurisdiction in implementing Section
10 of Rule H. Attachment No. 7 illustrates how Section 10 of Rule H would in no way
encroach on the jurisdiction or operations of the PRAs. For the Commission's
convenience, a copy of Attachment NO.7 is attached to this Reply Brief.
IV. The Commission Has Exclusive
Jurisdiction Over Utilty Facilty Relocation Expense.
The second parts of each of the PRAs' two briefs are directed to the
Commission's purported lack of jurisdiction to approve Section 10 or Rule H. Both
PRAs assert that the Commission does not have legal authority to require anyone to
reimburse the Company for costs the Company incurs to relocate utilty facilties in a
public right-of-way. They claim no Commission jurisdiction exists, even when a
relocation is required to provide a direct benefit to the private property of a non-PRA,
such as a real estate developer or land owners whose property is adjacent to a public
road. The Joint Brief of Nampa and ACCHD unequivocally states the PRAs' position:
Similarly, the Public Utilities Act does not give the IPUC the
jurisdiction to take utilty relocation costs and impose the
duty to pay them on public road agencies, government
entities, developers, or other third parties alleged to have
specifically benefited from the improvements. Idaho Code §
67-205 provides no express or implied authority for utilties to
charge third parties for relocations. If the governing public
road agency determines that relocation is necessary to
support the public use and safety, the utility must relocate at
its own cost.
(Joint Brief, p. 4.)
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 5
In making this broad assertion, Nampa and ACCHD fail to acknowledge that
Idaho Power constructs relocations of its facilties for its customers every day. Those
relocations are governed by Rule H. Rule H has been in effect, in one form or another,
for at least thirty years.
No one seriously argues, and the PRAs do not so argue, that the Commission
does not have the authority to regulate how Idaho Power charges for relocating its utilty
facilties when a customer requests that they be moved. Rule H requires that the
beneficiaries of a relocation of utilty facilties must pay the cost of relocating those
facilties. For example, if a real estate developer needs to have Idaho Power facilities
relocated to accommodate the entrance to a new subdivision, Rule H governs that
relocation and establishes how those costs wil be recovered from the developer. If a
PRA asked Idaho Power to relocate its facilties not in the public right-of-way in order to
accommodate construction of a new building for the PRA, Rule H would apply and
would require that the PRA bear the cost of that relocation. PRAs do not assert that the
Commission has no jurisdiction over utility facilty relocations in those situations.
It is only when utilty facilities are located in public road rights-of-way that PRAs
assert that the Commission is divested of jurisdiction over utility facility relocations. In
that one instance, they argue an exception to the general rule is legally mandated.
Idaho Power respectfully submits that PRAs' position is neither reasonable nor legally
correct.
V. The Commission's Authority to Regulate How Idaho Power Charges Its
Customers for Relocations Comes Directly from the Idaho Code.
In their briefs, the PRAs correctly note that the jurisdiction of the Commission is
limited to the authority given to it by the Legislature. They cite the Kootenai
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 6
Environmental Allance case and others as support for that proposition. The PRAs rely
on the broad discussions of the limits of the Commission's jurisdiction in Kootenai to
assert that the Commission does not have the requisite authority to approve Section 10
of Rule H. Idaho Power respectfully submits that the PRAs' assertions in that regard
are incorrect. In order to understand how the Commission derives its jurisdiction to
approve Section of Rule H, it is necessary to consider several provisions of the Idaho
Code.
In exercising its jurisdiction, the Idaho Supreme Court has noted that the
Commission is allowed all power necessary to effectuate its purpose. Idaho Code § 61-
501 provides as follows:
61-501. Investment of Authority. The public utilities
commission is hereby vested with power and jurisdiction to
supervise and regulate every public utilty in the state and to
do all things necessary to carry out the spirit and intent of the
provisions of this act.
Idaho Code § 61-503 provides as follows:
61-503. Power to investigate and fix rates and
regulations. The commission shall have power, upon a
hearing, had upon its own motion or upon complaint, to
investigate a single rate, fare, toll, rental, charge,
classification, rule, regulation, contract or practice, or any
number thereof, or the entire schedule or schedules of rates,
fares, tolls, rentals, charges, classifications, rules,
regulations, contracts or practices, or any thereof, of any
public utilty, and to establish new rates, fares, tolls, rentals,
charges, classifications, rules, regulations, contracts or
practices or schedule or schedules in lieu thereof.
Idaho Code § 61-315 provides as follows:
61-315. Discrimination and preference prohibited. No
public utilty shall, as to rates, charges, service, facilties or in
any other respect, make or grant any preference or
advantage to any corporation or person or subject any
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION-7
corporation or person to any prejudice or disadvantage. No
public utilty shall establish or maintain any unreasonable
difference as to rates, charges, service, facilties or in any
other respect, either as between localities or as between
classes of service. The commission shall have the power to
determine any question of fact arising under this section.
Idaho Code § 61-507 provides as follows:
61-507. Determination of rules and regulations. The
commission shall prescribe rules and regulations for the
performance of any service or the furnishings of any
commodity of the character furnished or supplied by any
public utilty, and, on proper demand and tender of rates,
such public utility shall furnish such commodity or render
such service within the time and upon the conditions
provided in such rules.
Idaho Code § 61-301 provides as follows:
61-301. Charges just and reasonable. All charges made,
demanded or received by any public utilty, or by any two (2)
or more public utilties, for any product or commodity
furnished or to be furnished or any service rendered or to be
rendered shall be just and reasonable. Every unjust or
unreasonable charge made, demanded or received for such
product or commodity or service is hereby prohibited and
declared unlawfuL.
Idaho Code § 61-302 provides as follows:
61-302. Maintenance of adequate service. Every public
utilty shall furnish, provide and maintain such service,
instrumentalities, equipment and facilities as shall promote
the safety, health, comfort and convenience of its patrons,
employees and the public, and as shall be in all respects
adequate, effcient, just and reasonable.
With that general statutory foundation laid, Idaho Power can address the specific
argument of the PRAs.
Throughout their Briefs, the PRAs repeatedly argue that the Public Utilty Law
does not refer to "relocation of utilty facilities located in public rights-of-way." They
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 8
argue that without a specific reference in the statutes to the Commission's jurisdiction to
"impose upon public road agencies, entities of government, third parties, and
developers the duty to pay for such relocations . . ." (ACHD Brief, p. 10), the
Commission is without jurisdiction to approve Section 10 of Rule H. Such a view is
inconsistent with the Idaho Supreme Court's interpretation of the scope of the
Commission's jurisdiction under the above-cited statutes and the Commission's
obligation to act in the public interest.
In an Idaho Power rate case in 1978, the Commission approved a new rate
design for irrigation customers in which the Commission cited concepts of energy
conservation, optimum use of energy, and resource allocation as some of the support
for its decision. Grindstone Butte Mutual Canal Company and a number of other
irrigation and soil drainage customers appealed the Commission's decision. The
appellants contended that the Commission acted outside its constitutional and statutory
limitations by giving consideration to a number of concepts that are not specifically
identified in the Public Utilty Law. In Grindstone Butte Etc. v. Idaho Power, 102 Idaho,
175, 627 P .2d 804 (1981), the Court upheld the Commission's rate design decision and
in its Opinion explained that the Commission operates in the public interest and can
take into consideration relevant criteria in setting utility rates and charges.
Appellants contend that the Commission acted outside its
constitutional and statutory limitations by giving
consideration to the concepts of conservation, optimum use
and resource allocation. We do not agree. While the Idaho
Public Utilities Commission is a body with statutorily defined
jurisdiction, it is also true that the Commission operates in
the public interest to insure that every public utilty operates
as shall promote the safety, health, comfort of the public and
as shall be in all respects adequate, efficient, just and
reasonable. i.C. §§ 61-301 & 61-302. The power to fix rates
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 9
is for the public welfare. Agricultural Products v. Utah Power
& Light Co., supra. The Commission has the authority to
investigate and determine whether a rate is unjust,
unreasonable, discriminatory or preferential, or in any wise in
violation of any provision of law. I.C. §§ 61-502 & 61-503.
'Every power expressly granted, or fairly to be implied from
the language used, where necessary to enable the
Commission to exercise the powers expressly granted
should be afforded.' Washington Water Power Co. v.
Kootenai Environmental Allance, 99 Idaho 875, 879, 591
P.2d 122, 126 (1979). Citing United States v. Utah Power &
Light Co., 98 Idaho 665, 667, 570 P.2d 1353, 1355 (1977),
quoting 64 Am. Jur.2d, Public Utilities, § 232 (1972). Absent
a legislative pronouncement to the contrary, we find it within
the Commission's jurisdictional province to consider in its
rate making capacity all relevant criteria including energy
conservation and concomitant concepts of optimum use and
resource allocation. In the proceedings below, we find no
error in these considerations as made by the Commission in
what it perceived as a need to develop new rate designs
which would be responsive to current economic realities. It
is in the public interest to make such considerations in
decisions which impact upon the consumption of energy,
especially in light of the advancing 'poliical, economic and
environmental costs imposed on society.' Bunker Hil Co. v.
Washington Water Power Co., 98 Idaho 249,253,561 P.2d
391,395 (1977). (Grindstone Butte Etc., 102 Idaho 175, 181
(1981 ).
It is beyond question that it is within the Commission's statutory authority and
obligation to protect the public interest by establishing utility practices, like Rule H, that
help ensure that entities that cause a utility to increase its costs are required to pay
rates and charges that recover those costs and do not shift such costs to the utilties'
other customers.
Even though the terms "mandatory relocation of utility facilties from the public
right-of-way" or "payment for relocations" are not set out in the statutes that establish
the Commission's jurisdiction, the Commission has a right to rely on its undisputed
authority to require developers and other customers to pay for utility line extensions and
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 10
line relocations. The Commission also has a right to rely its obligation to act in the
public interest as authority to allocate the costs of mandatory utility relocations to those
non-PRA entities that receive a private benefit from expansion or modification of the
public right-of-way.
In their Briefs, PRAs cast Order No. 30853 as an effort on the part of the
Commission to "regulate" PRAs, local improvement districts, land owners adjacent to
public roads, and real estate developers. ACHD argues in its Brief that "the state's
highway districts, public road agencies, entities of government, third parties, and
developers are not 'public utilties' as defined in Idaho Code § 61-129." (ACHD, p. 9.)
ACHD's argument goes too far. Rule H does not subject any of these parties to utilty-
type regulation. But it does make it clear that these parties are subject to the
Commission's authority to authorize Idaho Power to establish rules and regulations and
set rates and charges so that the Company can recover the cost of relocating its
facilties just like it could if the utilty facilties were not in public rights-of-way. By
requiring the developers and others to provide reimbursement, Section 10 wil reduce
upward pressure on retail rates and avoid discrimination and preference as required by
Idaho Code § 61-315.
ACHD, the City of Nampa, and ACCHD take umbrage at Idaho Powets
observation that an Idaho Power customer in Pocatello does not see the benefit from
roadway improvements constructed to accommodate a new shopping center in Nampa.
All of the PRAs go to great lengths to explain how, while it may not look like projects
such as those described above would confer a benefit on an Idaho Power customer in
Pocatello, in fact, all public road improvements, including those made to develop new
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 11
entrances to shopping centers or to put in sidewalks in Nampa, provide a benefit to
Idaho Powets customers across the state and therefore it is reasonable to expect the
Company to pay relocation costs in those instances. (Joint Brief, p. 4; ACHD Brief, p.
14.)
These arguments simply gloss over the fact that if the developers and third-party
beneficiaries do not pay the costs Idaho Power incurs to relocate its facilities, those
costs are transferred to all of Idaho Powets customers and place upward pressure on
rates. Idaho Power does not believe it is unreasonable to expect that those non-PRA
entities that cause Idaho Power to incur costs, bear those costs. Customers in Jerome
or McCall should not be forced to subsidize economic development in Nampa or Boise
cloaked in the guise of public safety or convenience.
Vi. Avoidance of "Contribution Competition" is
Not a Reasonable Basis for Rejection of Section 10.
ACHD argues that if the Commission approves Section 10 of Rule H, this wil
"artificially and inappropriately inject the allocation of utility relocation costs into any
development agreement between highway districts and third parties." (ACHD Brief, p.
11.) Nampa and ACCHD make the same claim in more detail in their Joint Brief.
Section 10 and its treatment of third party beneficiaries
would interfere with the ability of the public road agencies to
cooperate with other government entities, with
neighborhoods, and with developments. Rather than being
in a position to negotiate and cooperate between parties,
Section 10 imposes a scheme where now these entities are
in competition with each other to minimize their contribution
to the project and therefore avoid Idaho Power imposing
relocation costs. This is another example of how Section 10
as proposed interferes with the exclusive authority of public
road agencies and impedes their ability to negotiate
appropriately with all parties.
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION -12
(Joint Brief, p. 6.)
This argument by the PRAs is troubling. It indicates that in their dealings with
local developers, local improvement districts ("LIDs"), etc., one of the PRAs' principal
concerns would be making sure that payments to Idaho Power for utility relocations are
minimized to the extent needed to achieve an agreement rather than allocating costs
according to public/private benefit. Idaho Power is concerned that a desire to
encourage local economic development might be coloring how local road improvements
are being characterized at the expense of Idaho Powets customers outside of the
PRAs.
It should be noted that ACHD's Resolution 330 would seemingly cause the same
problem. Idaho Power appreciates ACHD's ability to manage this issue over the past
twenty years that Resolution 330 has been in effect.
VII. Section 10 of Rule H Should be Applied to LIDs.
In their briefs, both PRAs argue that local improvement districts or LIDs must be
excluded from the application of Section 10 of Rule H. They argue that because LIDs
are created by government units, i.e., a city, highway district, or public road agency,
they must be excluded from the application of Section \ 10 of Rule H. Idaho Power
respectfully disagrees. First, a LID is not a public road agency that is charged with
operating and maintaining public roads. An LID is simply a vehicle by which taxation
can occur but not be included in the general budget of a public road agency. The only
function the LID performs is to collect money. Idaho Power does not believe it is
unreasonable to expect a LID to include in the amount of money it will fund an amount
to cover the cost of utilty facilty relocation. In his testimony in this proceeding, Idaho
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 13
Power witness David Lowry discusses the problems that can occur when local
improvement districts are formed to install sidewalks or other improvements which
require the relocation of Company facilties. He explains that if the LID has no
obligation to include the cost of utility relocation as a part of the cost of the work to be
done, the LID wil collect funding from nearby propert owners only for the cost of the
improvements and the cost of relocating city utilities but not for the cost of relocating
other utilities in the right-of-way. (Lowry 01, p. 6, i. 17 through p. 7, i. 12.) Mr. Lowry
also included as Exhibit No. 1 to his testimony correspondence describing how the lack
of requirement for a LID to include costs of relocation of Idaho Powets facilties in its
funding requirement resulted in adverse impacts to an Idaho Department of
Transportation highway project and ultimately prevented the Company from recovering
its relocation costs.
In light of problems the Company has experienced with LIDs and the fact that it
,
would be very easy for LIDs to include cost of utilty relocations in their initial funding,
Idaho Power urges the Commission to retain LIDs among the entities subject to Section
10 of Rule H.
VII. ACHD Misunderstands Subsection CD) of Section 10 of Rule H.
On page 16 of its Brief, ACHD concludes that the Commission made an
erroneous finding when the Commission held:
'Section 1 0 in. no way grants Idaho Power or this
Commission authority to impose such costs on a public road
agency.' ACHD directs the IPUC to Subsection d of Section
10 which states: '... where the Company has a private right
of occupancy for its power line facilties within the public
right-of-way, such an easement or other private right, the
costs of the relocation is borne by the Public Road Agency.'
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 14
ACHD interprets Subsection (d) as requiring that PRAs pay for utility relocations
associated with road projects. ACHD asserts that this is a violation of the Idaho
Constitution. ACHD wrongly interprets Subsection (d) of Section 10. Subsection (d)
applies specifically to those very limited situations where a utiity is occupying a privately
owned right-of-way that crosses a public right-of-way. Idaho Power witness Lowry
addressed how that can happen on page 5 of his prefied testimony (Lowry, p. 5, 11. 1-
12.) Probably the most common instance of how this occurs is when a PRA decides to
expand the width of a public road and in so doing, expands its public right-of-way to
include land where utility facilties are located on a private easement that the utilty
purchased prior to the road expansion. In that situation, Idaho Power has the same
status as any private property owner that has its property acquired by a PRA. Failure to
compensate the utilty would constitute an unlawful taking under both Art. I § 14 of the
Idaho Constitution and the Fifth Amendment of the United States Constitution. ACHD's
argument that Subsection (d) of Rule H is inconsistent with the Idaho Constitution is
further rebutted by the fact that ACHD's own Resolution 330 acknowledges that in
situations involving private utilty easements, relocation costs wil be the responsibility of
ACHD. See Resolution 330, Exhibit A to Affidavit of Susan K. Slaughter, Section
1.A.(2).
If a utilty or sewer company has facilties located on private
property, with a right of occupancy other than its right to
locate in a public right-of-way, and the District requires that
any facilty so located be relocated, the actual costs for such
relocation shall be the responsibility of the District. Such
costs shall be exclusive of profit allowances.
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION -15
IX. Idaho Power Wil Work With PRAs to Avoid Scheduling Conflicts.
In its brief, ACHD expresses concern that Section 10 of Rule H could impact a
PRAs' schedule for performing road improvements (ACHD Brief, p. 12.) In particular,
ACHD expresses concern about the portion of Section 10 that requires payments from
third-party beneficiaries to cover relocation costs be made prior to the Company
performing relocation work. Idaho Power acknowledges that scheduling of construction,
for both Idaho Power and the PRAs, can be complicated and there are economic
impacts associated with scheduling. Fortunately, Idaho Power and ACHD have a long
history of cooperation in scheduling construction in accordance with the provisions of
Resolution 330. Idaho Power believes that it has maintained a good working
relationship with ACHD and wil continue, as it has over the past twenty years, to work
with ACHD and other PRAs in scheduling utilty relocations to coordinate with highway
construction projects initiated by the PRAs. Idaho Power believes it does a good job of
working with all PRAs in scheduling and completing utility relocations in response to
PRA-initiated construction projects. The inclusion of Section 10 in Rule H wil not
change that commitment to cooperation and coordination.
X. Conclusion.
Idaho Power acknowledges the common law rule that the utility's use of the
public road right-of-way is subordinate to the paramount use of the public road right-of-
way if that use "incommodes the public." Nor does Idaho Power contest the Public
Road Agencies' authority to determine that the relocation of utility facilties is necessary,
or to require that the relocation be paid by the utility if no private easement exists.
Section 10 does not encroach on the Public Road Agencies' authority in this regard; it
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 16
establishes how Idaho Power will allocate those costs among its customers and third-
party beneficiaries after the Public Road Agencies' have made their initial
determination. However, once paid the amounts owed by the utilty, the PRAs have no
authority to determine how the utiliy will seek subsequent reimbursement from third
parties benefiting from the facilities relocation. This is solely the domain of the
Commission, which is invested with the authority to do all things necessary to carry out
the spirit and intent of the Public Utilties Law to ensure that customer rates are "just and
reasonable." Consequently, Idaho Power respectfully requests the Commission issue
an Order affirming its findings in Order No. 30853 and denying the Petitions for
Reconsideration filed by the Public Road Agencies.
DATED at Boise, Idaho, this 21st day of September 2009.
~Q~æMiw
üSA (l NOR ~TROM
Attorney for Idaho Power Company
IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 17
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 21 st day of September 2009 I served a true and
correct copy of IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION
upon the following named parties by the method indicated below, and addressed to the
following:
Commission Staff
Kristine A. Sasser
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington
P.O. Box 83720
Boise, Idaho 83720-0074
Building Contractors Association of
Southwestern Idaho
Michael C. Creamer
GIVENS PURSLEY, LLP
601 West Bannock Street
P.O. Box 2720
Boise, Idaho 83701-2720
City of Nampa AND
Association of Canyon County
Highway Districts
Matthew A. Johnson
Davis F. VanderVelde
WHITE PETERSON GIGRA Y
ROSSMAN NYE & NICHOLS, P.A.
5700 East Franklin Road, Suite 200
Nampa, Idaho 83687
Kroger Co.
Michael L. Kurt
Kurt J. Boehm
BOEHM, KURTZ & LOWRY
36 East Seventh Street, Suite 1510
Cincinnati, Ohio 45202
Kevin Higgins
Energy Strategies, LLC
Parkside Towers
215 South State Street, Suite 200
Salt Lake City, Utah 84111
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dvandervelde((whitepeterson.com
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kboehm((BKLlawfrm .com
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IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 18
Ada County Highway District
Scott D. Spears
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
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IDAHO POWER COMPANY'S REPLY BRIEF ON RECONSIDERATION - 19
BEFORE THE
IDAHO PUBLIC UTiliTIES COMMISSION
CASE NO. IPC-E-08-22
IDAHO POWER COMPANY
ATTACHMENT NO.7
Roadway
Agency
Jurisdiction
RELOCATIONS FLOWCHART
Roadway Agency receives
road widening or
improvement request.
l
Roadway Agency determines that Idaho Power must
relocate its facilities in public right-of-way to
accommodate road improvement and notifies Idaho
Power Com an ursuant to I.C. 62-705.
l
Roadway Agency determines the percentage amount, if
any, a road improvement wil benefit a third part.
Roadway Agency charges third party for its portion of
roadway improvement costs.
!
AGENCY
Collects third-party's
percentage share of
road improvement costs
l
Constructs
improvement
l
IDAHO POWER
COMPANY
Collects third-party's \
percentage share of
relocation costs based on
same percentage
Roadway Agency charged
third-part
l
Performs relocation of
utility facilities
l
Dispute resolution ..
(if needed)
IPUC
Jurisdiction
Attachment No. 7
Case No. IPC-E-08-22
Idaho Power Reply Comments
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