20120211IPC Answer to ACHD Memo in Opposition.pdf

LISA D. NORDSTROM
Lead Counsel
Inordstromcmidahopower.com
eeslDA~PORCI
An IDACORP Company
February 10, 2012
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilties Commission
472 West Washington Street
Boise, Idaho 83702
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 Answer to the Ada County Highway District's Memorandum in Opposition to
Idaho Power Company's Amended Motion to Accept Conforming Rule H Section 1 o Tariff
in the above matter.
Very truly yours,
Xt~ l) Cr (h~
Lisa D. Nordstrom
LDN:csb
Enclosures
1221 W. Idaho St. (83702)
P.O. Box 70
Boise. ID 83707
LISA D. NORDSTROM (ISB No. 5733)
PATRICK A. HARRINGTON (ISB No. 3423)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
InordstromCãidahpower.com
pharringtonCãidahopower.com
Attorneys for Idaho Power Company
RECEIVED
2012 FEB l 0 PH 5: 02
I,. ~ tl("\ ::,: ;:"':('l 'rt,\rl: i. ru L'''1~f
UTILlfIES~ COMì\I\iSSION
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 A TI ACHMENTS AND )
DISTRIBUTION LINE INSTALLATIONS. )
)
)
)
)
)
CASE NO. IPC-E-08-22
IDAHO POWER COMPANY'S
ANSWER TO THE ADA COUNTY
HIGHWAY DISTRICT'S
MEMORANDUM IN OPPOSITION
TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT
CONFORMING RULE H SECTION 10
TARIFF
Pursuant to the Idaho Public Utilties Commission's ("Commission" or "IPUC") RP
57 and RP 256, Idaho Power Company ("Idaho Powet' or "Company"), by and through
its attorneys of record, hereby submits its Answer to the Ada County Highway District's
("ACHD") Memorandum in Opposition to Idaho Power Company's Amended Motion to
Accept Conforming Rule H Section 10 Tariff filed on January 25,2012.
I. BACKGROUND
Following is a summary of the proceedings which have led to Idaho Powets
current Answer to ACHD's Memorandum in Opposition in this case.
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 1
A. Commission Order No. 30853.
On November 30,2009, the Commission issued Order No. 30853 approving the
addition of Sections 10 and 11 to Idaho Power's Rule H line extension tariff. Sections 10
and 11 set forth certain rules authorizing Idaho Power to recover the cost of distribution
line relocations from public road rights-of-way from private beneficiaries.
B. ACHD v. IPUC.
ACHD objected to Sections 10 and 11 and appealed the Commission's decision in
Order No. 30853 to the Idaho Supreme Court, claiming that Sections 10 and 11
exceeded the Commission's statutory authority. The Supreme Court issued its decision
in Ada County Highway Dist. v. Idaho Public Utilities Commission, 253 P .3d 675 (Idaho
2011) ("ACHD v. IPUC'j on May 25, 2011, holding that Sections 10 and 11 exceeded the
Commission's authority under Idaho's public utilty statutes.
C. Amended Section 10.
In response to the Supreme Court's decision in ACHD v. IPUC, Idaho Power filed
its Amended Motion to Accept Conforming Rule H Section 10 Tariff with the Commission
on January 11, 2012 ("Conforming Motion"). The Conforming Motion proposes to
replace Rule H Sections 10 and 11, which the Supreme Court found to be deficient in
ACHD v. IPUC, with a new amended Rule H Section 10 ("Amended Section 10"). Idaho
Powets Conforming Motion was made under Idaho Code § 61-629, which provides that
if an order of the Commission is set aside in whole or in part by the Supreme Court, any
party to the proceeding may file a motion with the Commission to amend the order
appealed from to meet the objections of the Court.
Idaho Power consulted with ACHD in an attempt to reach an agreement on the
wording of Amended Section 10. As described in the Conforming Motion, Idaho Power
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 2
and ACHD reached agreement on the wording of the first two paragraphs of Amended
Section 10, but ACHD did not agree with the wording of the final sentence of the third
paragraph of Amended Section 10. Idaho Power and ACHD were not able to reach
agreement on this sentence and Idaho Power proceeded with its filng of the Conforming
Motion.
D. ACHD's Memorandum in Opposition.
In response to Idaho Powets Conforming Motion, ACHD filed its Memorandum in
Opposition on January 25, 2012. ACHD's Memorandum in Opposition objects to all
three paragraphs of Idaho Power's Amended Section 10, asserting that the language of
Amended Section 10 "expressly contradicts the Idaho Supreme Court's opinion" in
ACHD v. IPUC.
II. ARGUMENT
Idaho Power believes that Amended Section 10 conforms with the Supreme
Court's decision in ACHD v. IPUC and should be adopted by the Commission,
notwithstanding the objections raised by ACHD in its Memorandum of Opposition.
Following is an analysis of the three paragraphs contained in Amended Section 10,
including a rebuttal of the objections raised by ACHD to each paragraph.
A. Section 10. Paragraph 1.
The first paragraph of Amended Section 10 reads as follows:
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 wil meet with the Public Road Agency as
provided in Idaho Code § 40-210.
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 3
This paragraph replaces the former Rule H Section 11 which the Supreme Court
found exceeded the Commission's jurisdiction in ACHD v. IPUC. The former Section 11
read as follows:
11. Eliminating or Minimizing Relocation Costs in Public
Road Rights-of-Way.
Pursuant to Idaho Code § 40-210, the Company wil
participate in project design or development meetings
upon receiving written notice from the Public Road
Agency that a public road project may require the
relocation of distribution facilties. The Company and
other parties in the planning process wil use their
best efforts to find ways to eliminate the cost of
relocating utility facilties, or if elimination is not
feasible, to minimize the relocation costs to the
maximum extent reasonably possible. This provision
shall not limit the authority of the Public Road Agency
over the public road right-of-way. (Emphasis added.)
The Supreme Court held that Section 11's reference to "and other parties"
exceeded the authority of the Commission because the Commission did not have
authority to order "other parties" to use their best efforts to minimize relocation costs.
This point has been corrected in the first paragraph of Amended Section 10, which is
directed exclusively at Idaho Power: ". . . the Company will meet with the Public Road
Agency as provided in Idaho Code § 40-210." This is a simple instruction for Idaho
Power to meet with public highway agencies on public road projects as contemplated in
§ 40-210, which states in part:
(2) In furtherance of the legislative intent expressed in
subsection (1) of this section, public highway agencies
engaged in a public highway project that may require the
relocation of utility facilities, or any private party working with
a public highway agency on a project that may require the
relocation of utilty facilties in connection therewith, shall
permit the affected utilty to participate in project
development meetings. In addition, at the beginning of the
preliminary design phase of the project, the public highway
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 4
agency shall. upon giving written notice of not less than thirty
(30) days to the affected utilty. meet with the utility for the
purpose of allowing the utilty to review plans, understand
the goals, objectives and funding sources for the proposed
project, provide and discuss recommendations to the public
highway agency that would reasonably eliminate or minimize
utilty relocation costs, limit the disruption of utilty 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
such utility facilty relocation as may be necessary. 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 utilty 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.)
The first paragraph of Amended Section 10 has been modified to meet the
findings of the Supreme Court in ACHD v. IPUC, does not affect ACHD, and should be
adopted by the Commission.
B. Section 10, Paragraph 2.
The second paragraph of Amended Section 10 reads as follows:
If a Public Road Agency determines that the Company's
facilities incommode the public use of any road, highway or
street, the Public Road Agency can require the Company to
relocate or remove the facilties. If a Public Road Agency
determines that the Company's facilties must be relocated
or removed because they incommode the public use of the
road, highway or street, the Company wil relocate its
distribution facilties from or within the public road rights-of-
way and the Company wil bear the costs of such relocation.
ACHD claims in its Memorandum in Opposition that this paragraph should be
stricken because it "attempts to establish limits as to when a Public Road Agency 'can
require' Idaho Power to relocate or remove its facilities from the public rights-of-way and
when Idaho Power wil bear the cost of such relocation." ACHD Memorandum in
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 5
Opposition at 11-12. Idaho Power disagrees with this interpretation. As with the first
paragraph above, the second paragraph of Section 10 has no application whatsoever to
Public Road Agencies and does not in any way restrict the rights of Public Road
Agencies to require utilities to relocate or remove their facilties from public road rights-
of-way under Idaho law.
The purpose of the second paragraph is simply to describe how Idaho Power
typically relocates its facilities from road rights-of-way in Idaho. This background
description is helpful as a lead-in to paragraph three, which provides substantive rules
for Idaho Power's recovery of relocation costs from Private Beneficiaries. The second
paragraph is not intended to provide an exhaustive list of all conditions under which
Idaho Power is to relocate or remove its facilties from the public road right-of-way. It
simply states, by far, the most common reason for descriptive purposes - where the
Company's facilities "incommode the public use" (as referenced in Idaho Code § 62-705,
authorizing electric utilities to locate their facilties in county road rights-of-way). Nothing
in the second paragraph is inaccurate or detracts in any way from the legal rights of
Public Road Agencies to require utilities to relocate their facilties from road rights-of-way
at the cost of the utility.
c. Section 10. Paragraph 3.
The third paragraph of Amended Section 10 reads as follows:
If 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
or removed for the benefit of the Private Beneficiaries, the
Company wil use reasonable efforts to recover that portion
of the total Relocation or removal costs attributable to the
request from the Private Beneficiaries. If the Private
Beneficiaries dispute the Company's calculation of the
Private Beneficiaries' cost responsibilty, either the Company
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 6
or the affected Private Beneficiaries may initiate a
proceeding to have the Commission establish the
reasonableness of the Company's calculation of the
Relocation or removal cost responsibility as between the
Company and the Private Beneficiaries.
ACHD argues in its Memorandum in Opposition that the third paragraph of
Amended Section 10 should be stricken, in part because "The Idaho Supreme Court
expressly held (in ACHD v. ipuq that the Commission does not have 'authority to
determine whether the relocation, in whole or in part, is for the benefit of a third party.'"
ACHD Memorandum in Opposition at 12. ACHD should read the third paragraph more
closely. In order to conform with the Supreme Court's holding, the third paragraph of
Amended Section 10 now focuses on a "request" from a Private Beneficiary for the
relocation of Idaho Power facilities from the road right-of-way. The request from the
Private Beneficiary may be made either "directly or indirectly through a Public Road
Agency." The Supreme Court stated unequivocally that when a private party (Private
Beneficiary) requests utility services such as relocation of utilty facilties, the
Commission's primary jurisdiction is invoked.
The Supreme Court stated in ACHD v. IPUC at 682:
IPUC certainly has the authority to determine the costs that
Company can charge a private person who requests
services from Company. However, Section 10 goes further
than that. Under Section 10, when a Public Road Agency
(FN3) requires that Idaho Power relocate its distribution
facilities, I PUC has the authority to determine whether the
relocation, in whole or in part, is for the benefit of a third
party. If it determines that it is, then Section 10 would
allocate all or a portion of the costs of relocation to that third
party. Thus, IPUC could require a third party to pay for
services that the third party did not request from Company if
IPUC determined that a relocation required by a Public Road
Agency benefied the third party. IPUC has not pointed to
any statute granting it that authority. (Emphasis added.)
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF-7
This paragraph sets forth the Supreme Court's basis for concluding that the
original Section 10 exceeded the Commission's authority. However, unlike ACHD, Idaho
Power does not believe the Supreme Court stated that the Commission never has
authority to determine who should pay for a relocation of utilty facilities located in the
public right-of-way. Idaho Power believes that the critical distinction in the Supreme
Court's analysis is whether the Private Beneficiary has requested service from Idaho
Power. Under this analysis, the Commission could in fact allocate costs to a Private
Beneficiary if it were determined that the Private Beneficiary requested the relocation
services in question from Idaho Power.
ACHD also asserts that the third paragraph of Amended Section 10 should be
stricken because it states that the Company or a Private Beneficiary may request that
the Commission establish the reasonableness of the "Company's calculation of the
Relocation or removal cost responsibilty as between the Company and the Private
Beneficiaries." According to ACHD, the Commission cannot make such a determination
based on the Supreme Court's holding in ACHD v. IPUC. Idaho Power disagrees.
The Supreme Court found that power line relocations represent a "service" by
Idaho Power ("The performance of any service indicates action by the public utilty, which
reasonably includes removing and reinstallng distribution facilties") and also held that
the Commission has authority to review and approve the costs of such services ("IPUC
certainly has the authority to determine the costs that Company can charge a private
person who requests services from Company"). See ACHD v. IPUC at 682.
Thus, it is clear from the Supreme Court's decision that (1) relocating facilties is a
service performed by Idaho Power and (2) the Commission has authority to determine
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 8
the costs Idaho Power can charge to parties who request such services. This is
precisely the process described in the final sentence of Amended Section 10:
If the Private Beneficiaries dispute the Company's
calculation of the Private Beneficiaries' cost responsibilty,
either the Company or the affected Private Beneficiaries may
initiate a proceeding to have the Commission establish the
reasonableness of the Company's calculation of the
Relocation or removal cost responsibilty as between the
Company and the Private Beneficiaries.
ACHD cites another portion of the Supreme Court's holding in ACHD v. IPUC
which references the Commission's statements in oral argument relating to the
Commission's jurisdiction:
During oral argument, IPUC admitted that it could not
adjudicate the dispute between the third party and Company.
It also admitted that if Company wanted to recover relocation
costs from a third party, it would have to sue in court and
Section 10 would not apply.
See ACHD v. IPUC at 683. Whether the Commission could adjudicate a dispute
between the third part and the Company under the previous Section 10 would have
been an important issue for the Commission to address if that section were stil under
review. However, it is crystal clear that the Commission does have authority to
adjudicate a dispute under the Amended Section 10, based on the Supreme Court's
holding that facilty relocations are a service and that "IPUC certainly has the authority to
determine the costs that Company can charge a private person who requests services
from Company." Id. at 682. The Commission adjudicates such disputes between utilties
and their customers all the time.
As to the reference to the Company's need to "sue in court" to enforce Section 10,
this is an accurate statement to the extent that if the Commission were to find that a
Private Beneficiary owes a certain amount to Idaho Power for relocation services
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 9
performed for the Private Beneficiary, then the Company would have to sue in court to
actually collect the amount owned if the Private Beneficiary did not pay. This is Idaho
Powets standard procedure whenever a third party does not pay an amount owed to the
Company, whether the payment is for a power bil or for other services provided by the
Company.
II. CONCLUSION
For the reasons described herein, Idaho Power maintains that Amended Section
10 is in conformance with the Supreme Court's decision in ACHD v. IPUC. The
Supreme Court held that the Commission could not require a third party to pay for
services that the third party did not request from the Company, and Amended Section 10
now expressly requires a direct or indirect request for relocation services by the Private
Beneficiary. Accordingly, Amended Section 10 is within the Commission's scope of
authority as described in ACHD v. IPUC.
Respectfully submitted this 10th day of February 2012.
eXR¿¡Q~~
LISA D. NORDS OM
Attorney for Idaho Power Company
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF -10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of February 2012 I served a true and
correct copy of IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY
HIGHWAY DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER
COMPANY'S AMENDED 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 Attomey 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 83687-7901
The Kroger Co.
Michael L. Kurtz
Kurt J. Boehm
BOEHM, KURTZ & LOWRY
36 East Seventh Street, Suite 1510
Cincinnati, Ohio 45202
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U.S. Mail
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FAX
-2 Email weldon.stutzmanCãpuc.idaho.gov
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dvanderveldeCãwhitepeterson .com
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kboehmcaBKLlawfirm.com
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 11
,
Kevin Higgins
Energy Strategies, LLC
215 South State Street, Suite 200
Salt Lake City, Utah 84111
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-- Email khigginscæenergystrat.com
Ada County Highway District
Scott D. Spears
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
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-- Email sspears(âachd.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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jashby(dhawleytroxell.com
g~j) 1(oi
lisa D. Nordstrom
IDAHO POWER COMPANY'S ANSWER TO THE ADA COUNTY HIGHWAY
DISTRICT'S MEMORANDUM IN OPPOSITION TO IDAHO POWER COMPANY'S
AMENDED MOTION TO ACCEPT CONFORMING RULE H SECTION 10 TARIFF - 12