20110714Motion.pdf

LISA D. NORDSTROM
Lead Counsel
InordstromCâidahopower.com
eslDA~POR~
An IDACORP Company
July 14, 2011
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilties Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Re: Case No. IPC-E-08-22
IN THE MATTER OF THE APPLICA TlON OF IDAHO POWER COMPANY
FOR AUTHORITY TO MODIFY ITS RULE H LINE EXTENSION TARIFF
RELATED TO NEW SERVICE ATTACHMENTS AND DISTRIBUTION LINE
INSTALLA TlONS
Dear Ms. Jewell:
Enclosed for filing please find an original and seven (7) copies of Idaho Power
Company's Motion to Accept Conforming Rule H Section 10 Tariff in the above matter.
Very truly yours,
;e--l)1t~
Lisa D. Nordstrom
LDN:csb
Enclosures
1221 W. Idaho St. (83702)
P.O. Box 70
Boise. ID 83707
LISA D. NORDSTROM (ISB No. 5733)
DONOVAN E. WALKER (ISB No. 5921)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
InordstromCâidahopower.com
dwalkerCâidahopower.com
RECEI
20ff JUL '4 PM 3: 23
Attorneys for Idaho Power Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATIER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR
AUTHORITY TO MODIFY ITS RULE H
LINE EXTENSION TARIFF RELATED TO
NEW SERVICE ATIACHMENTS AND
DISTRIBUTION LINE INSTALLATIONS.
)
) CASE NO. IPC-E-08-22
)
) IDAHO POWER COMPANY'S
) MOTION TO ACCEPT
) CONFORMING RULE H SECTION
) 10 TARIFF
)
Idaho Power Company ("Idaho Powet' or "Company"), in accordance with RP
056 and Idaho Code §§ 61-624 and -629, hereby moves that the Idaho Public Utilities
Commission ("Commission") issue an order approving Section 10 of the Rule H line
extension tariff, conforming it to Idaho Supreme Court Opinion No. 56 issued in Ada
County Highway Dist. v. Idaho Public Utiities Com'n, --- P.3d ----, 2011 WL 2023259, on
May 25, 2011 ("Opinion").
This Motion is based on the following:
I. BACKGROUND
1. On October 30, 2008, Idaho Power filed an Application seeking authority
to update and clarify its line extension tariff. R. Vol. I, pp. 1-55. Specifically, the
IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF-1
Company sought to update the charges that recover the costs it incurs for installng new
service lines and relocating existing electric distribution facilities for private parties. The
existing language on relocations was expanded to include recovery of utility relocation
costs within the public right-of-way from those receiving a private benefit.
2. On July 1, 2009, the Commission issued Order No. 30853 partially
approving the Company's request to modify its line extension tariff. R. Vol. II, pp. 313-
326. The Ada County Highway District ("ACHD") timely filed a Petition for
Reconsideration in which it argued that the Commission exceeded its statutory authority
in approving the changes to Sections 1 0 ("Relocations in Public Road Rights-of-Way")
and 11 ("Eliminating or Minimizing Relocation Costs in Public Road Rights-of-Way") of
the tariff. In Order No. 30883 issued August 19, 2009, the Commission granted
reconsideration to review the legal arguments, scheduling briefs and an oral argument
on October 13,2009. R. Vol. III, pp. 405-410. After reviewing the initial record and the
reconsideration testimony and briefs, the Commission issued final Order No. 30955 on
reconsideration affirming, rescinding, amending, and clarifying parts of its initial Order
pursuant to Idaho Code § 61-624. R. Vol. IV, pp. 648-678.
3. On January 10, 2010, ACHD filed an appeal to the Idaho Supreme Court
from the Commission's final Order, contending that Sections 10 and 11 of the amended
tariff infringed upon its exclusive jurisdiction to determine whether a third party is
required to reimburse a utilty for all or a portion of its cost of relocating the utilty's
distribution facilities that are in a public right-of-way and that the Commission exceeded
the authority granted it by the legislature. R. Vol. IV, pp. 679-683. Appellate briefs were
filed by ACHD; the Commission; Idaho Power; and the Idaho Association of Highway
IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 2
Districts, the Association of Idaho Cities, and the Idaho Association of Counties. On
May 9, 2011, the ACHD, the Commission, and Idaho Power argued the matter to the
Idaho Supreme Court ("Court"). The Court later issued its Opinion on May 25, 2011.
4. The Court found that tariff Section 10, providing that when a utilty was
required to relocate its distribution facilities within a public right-of-way for the benefit of
a private beneficiary, such beneficiaries may be required to pay some or all of the costs
incurred in doing so, did not usurp ACHD's exclusive jurisdiction over the public rights-
of-way. Opinion at 4-9.
5. The Court agreed that the Commission has the authority to determine the
costs that the Company can charge a private person who requests services from the
Company. Id. at 10. However, the Court ruled that the Commission exceeded its
authority when it adopted that portion of Section 10 that would have allowed the
Commission to require a third party to pay for services it did not request from Idaho
Power if the Commission determined a relocation required by a public road agency
benefited the third party. Id. at 11. Because parties such as county highway districts
are not entities regulated by the Commission, the Court also found that the Commission
exceeded its authority when it adopted Section 11 of the tariff, which could be
interpreted as giving the Commission the authority to order non-utility parties to use
their best efforts to find ways to minimize or eliminate the cost of relocating utilty
facilties. Id. at 12. Accordingly, the Court set aside Sections 10 and 11 of the Rule H
tariff.
6. In situations where the Idaho Supreme Court sets aside the Commission's
order in whole or in part, Idaho Code §§ 61-624 and -629 provide that the Commission
IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 3
wil alter or amend the order appealed from to meet the ruling of the Court. In the
manner provided by these statutes, Idaho Power requests the Commission approve
Section 10 as set forth in the proposed tariff included with this Motion as Attachment
NO.1. Idaho Power does not propose a new Section 11.
7. Idaho Power believes the proposed Rule H Section 10 tariff satisfies the
objections of the Court. Incorporating the language of Idaho Code § 40-210 that was
previously found in tariff Section 11, the proposed tariff Section 10 clarifies the
Commission's expectation that Idaho Power wil participate in public road agency
planning and coordination meetings to minimize or eliminate utilty relocation costs. The
proposed language removes mention of "other parties" using their best efforts to
minimize or eliminate utilty relocation costs from the tariff.1
8. The last paragraph of the proposed tariff Section 10 requires that:
If, however, during the process provided in Idaho Code §
40-210, the Company determines that one or more Private
Beneficiaries has, directly or indirectly through a Public
Road Agency, requested that the Company's facilties be
relocated for the benefit of the Private Beneficiaries, the
Company shall recover the Relocation Costs associated
with such request from the Private Beneficiaries. If there is
a dispute, the Company may initiate a proceeding to have
the Commission establish the reasonableness of the
Company's calculation of the Relocation cost responsibilty
as between the Company and the Private Beneficiaries.
This language is consistent with the Court's finding that the Commission has authority
to determine the costs that the Company can charge a private person who requests
Company services. Id. at 10. It also recognizes that the Commission has jurisdiction
1 Participant inclusive language continues to be part of Idaho Code § 40-210(2), which states:
"While recognizing the essential goals and objectives of the public highway agency in proceeding with
and completing a project, the parties shall use their best efforts to find ways to (a) eliminate the cost to
the utility of relocation of the utility facilities, or (b) if elimination of such costs is not feasible, minimize the
relocation costs to the maximum extent reasonably possible." (Emphasis added.)
IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 4
under Idaho Code § 61-507 to regulate any utilty "service," which reasonably
includes removing and reinstallng distribution facilties. Id. The proposed Section
10 makes clear that the Commission has authority to determine the costs that the
Company can charge for relocation services in situations where private parties have
requested Idaho Power to relocate its facilities indirectly through a Public Road
Agency. The proposed tariff language does not exert jurisdiction over non-utilty third
parties, nor does it claim that the Commission can enforce collection of relocation
costs from third parties (which the Company would seek in a court of law). Id. at 11-
12.
9. Idaho Power submits that the record in this proceeding is complete and
that after public notice, the Commission may approve the Company's proposed Rule H
Section 10 tariff.
II. CONCLUSION
For the reasons cited herein, Idaho Power respectfully submits that the enclosed
Rule H Section 10 tariff conforms to and is consistent with the Idaho Supreme Court's
Opinion issued in Ada County Highway Dist. v. Idaho Public Utilties Com'n. The
Company hereby requests that the Commission issue its order after public notice
approving the Company's proposed Section 10 of the Rule H line extension tariff.
DATED at Boise, Idaho, this 14th day of July 2011.
£yri~.LISA D. NORD ROM
Attorney for Idaho Power Company
IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 14th day of July 2011 I served a true and correct
copy of IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H
SECTION 10 TARIFF upon the following named parties by the method indicated below,
and addressed to the following:
Commission Staff
Weldon B. Stutzman
Deputy Attorney General
Idaho Public Utiities 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. Kurtz
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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-. Email weldon.stutzmanCâpuc.idaho.gov
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-. Email mccCâgivenspursley.com
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-. Email mjohnsonCâwhitepeterson.com
dvanderveldeCâwhitepeterson.com
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-. Email mkurtzCâBKLlawfirm.com
kboehmCâBKLlawfirm.com
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-. Email khigginsCâenergystrat.com
IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 6
Ada County Highway District
Scott D. Spears
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
Hand Delivered
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-. Email sspearsCâachd.ada.id.us
Merlyn W. Clark
D. John Ashby
HAWLEY TROXELL ENNIS &
HAWLEY, LLP
877 Main Street, Suite 1000
P.O. Box 1617
Boise, Idaho 83701-1617
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-. Email mclarkCâhawlevtroxell.com
¡ash byCâhawlevtroxell. com
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IDAHO POWER COMPANY'S MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 7
BEFORE THE
IDAHO PUBLIC UTiliTIES COMMISSION
CASE NO. IPC-E-08-22
IDAHO POWER COMPANY
ATTACHMENT NO.1
Idaho Power Company
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-14
RULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
10. Relocations in Public Road Rights-of-Way
The Company often locates its distribution facilities within state and local public road rights-of-
way under authority of Idaho Code § 62-705 (for locations outside Idaho city limits) and the
Company's city franchise agreements (for locations within Idaho city limits). When the
Company is notified of a road improvement project pursuant to Idaho Code § 40-210, the
Company will meet with the Public Road Agency to review plans, understand the goals,
objectives, and funding sources for the proposed project, provide and discuss recommendations
to reasonably eliminate or minimize relocation costs, limit the disruption of utility services,
eliminate or reduce the need for present or future utility facility relocation, and provide reasonable
schedules to enable coordination of the highway project construction and utilty facility relocation
as may be necessary.
If the Company's facilities must be relocated because they incommode the public use of the
road, highway or street, the Company wil relocate its distribution facilities from or within the
public road rights-of-way and the Company wil bear the costs of such relocation.
If, however, during the process provided in Idaho Code § 40-210, the Company determines
that one or more Private Beneficiaries has, directly or indirectly through a Public Road
Agency, requested that the Company's facilities be relocated for the benefit of the Private
Beneficiaries, the Company shall recover the Relocation Costs associated with such request
from the Private Beneficiaries. If there is a dispute, the Company may initiate a proceeding
to have the Commission establish the reasonableness of the Company's calculation of the
Relocation cost responsibility as between the Company and the Private Beneficiaries.
11. Existing Agreements
This rule shall not cancel existing agreements, including refund provisions, between the
Company and previous Applicants, or Additional Applicants. All Applications wil be governed
and administered under the rule or schedule in effect at the time the Application was received
and dated by the Company.
IDAHO
Issued - November 27,2009
Effective - December 1, 2009
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Affairs
1221 West Idaho Street, Boise, Idaho