20100716Idaho Power's Brief.pdf

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IN THE SUPREME COURT OF THE STATE OF IDAHO
IN THE MATTR OF TH APPLICATION OF
IDAHO POWER COMPANY TO MODIFY ITS
RULE H LIN EXTENSION TARIFF
RELATED TO NEW SERVICE
ATTACHMNTS AND DISTRIUTION LIN
INSTALLATIONS.
ADA COUNTY HIGHWAY DISTRICT,
Petitioner-Appellant,
v.
IDAHO PUBLIC UTILITIES COMMSSION
and IDAHO POWER COMPANY,
Respondents on AppeaL.
RECEIVED
ZUlU JULl 6 Aft H: 36
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) Supreme Court Docket No. 37294-2010
) (lPUC Case No. rnC-E-08-22)
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RESPONDENT IDAHO POWER COMPANY'S BRIF
Appeal from the Idaho Public Utilties Commission
Commissioner Marsha H. Smith, Presiding
Merlyn W. Clark (lSB No. 1026)
D. John Ashby (lSB No. 7228)
HAWLEY TROXELL ENNS &
HAWLEY,LLP
877 Main Street, Suite 1000
P.O. Box 1617
Boise, Idaho 83701-1617
Attorneys for Petitioner-Appellant Ada County
Highway District
LAWRENCE G. WASDEN
Attorney General
WELDON B. STUTZMAN (lSB No. 3283)
KRSTIN A. SASSER (lSB No. 6618)
Deputy Attorneys General
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Attorneys for Respondent Idaho Public Utilities
Commission
LISA D. NORDSTROM (lSB No. 5733)
DONOVAN E. WALKER (lSB No. 5921)
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, Idaho 83707
Attorneys for Respondent Idaho Power Company
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TABLE OF CONTENTS
I. STATEMENT OF .CASE.......................................................................................................... 1
A. Natue of the Case. ......................................... .................................................................. 1
B. Course of Proceedings......................................... .............................................................2
C. Statement of the Facts ......................................................................................................4
1. How Section 10 Allocates Utiity Relocation Costs ...... .... ....... ........... ......... ............. ... 5
2. The Commission's Initial Order No. 30853 ................................................................. 7
3. ACHD's Petition for Reconsideration ..........................................................................7
4. The Commssion's Order on Reconsideration.............................................................. 8
II. ISSUES PRESENTED ON APPEAL................................................................................... 10
A. Whether the Commssion Has Jursdiction Under Idaho Law to Establish
How a Utility Wil Recover the Costs It Incured to Relocate Its Facilities
With Public Rights-of-Way From Private Beneficiares ............................................ 10
B. Whether Commssion Order No. 30955 Is a Lawf Exercise of the
Commission's Authority to Regulate Utility Operatig Expenditues and
Recovery Thereof ................................ .......................................................................... 10
HI. STANAR OF REVIEW ................................................................................................. 10
IV. ARGUMENT ........................................................................................................................ 12
A. The Purose of Section 10: "Relocation in Public Road Rights-of-Way".................... 12
1. Reduce the Shifting of Developer Expenses to Idaho Power Customers ....... ............ 13
2. Recognie Commssion Rate Setting Jursdiction Over Reimbursement
of Company Relocation Costs .................................................................................... 15
3. Uniformly Allocate Idaho Power's Relocation Costs to Prvate Beneficiares .......... 15
4. Assess Utility Costs to "Cost Causers"....................................................................... 16
B. The Exclusive Jurisdiction of the Public Road Agencies Over Public Road
Rights-of-Way is Undisputed ......... .... ..... ..... .... ....... ..... .., '" .... ......... ........... ..... .............. 17
C. The Commssion Has Jursdiction Under Idaho Law to Determine Whch
Costs Incured to Relocate Utility Facilties Within the Public Road
Rights-of- Way May Be Collected From Private Beneficiares ..................................... 18
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1. Commssion Has Broad Authority Withn Its Limited Jursdiction ...... ..... .... .... ........ 19
2. The Commssion Does Not Exceed Its Jursdiction ..................... .............................. 24
D. Commission Order No. 30955 Is a Lawf Exercise of the Commission's
Jursdiction to Regulate Utility Operating Expenditues and Recovery Thereof ...... .... 26
iv. CONCLUSION .............................-........................................................................................31
ADDENDUM
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TABLE OF AUTHORIIES
Empire Lumber Co. v. Washington Water Power, 114 Idao 191, 193, 755 P.2d 1229,
1231 (1987)...............................................................................................................................11
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Grindstone Butte Mutual Canal Co. v. Idaho Public Utilties Commission, 102 Idao
175,627 P.2d 804 (1981)..........................................................................................................22
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Hayden Pines Water Companyv.IPUC, 111 Idaho 331, 336, 723 P.2d 875,880 (1986)............12
Hulet v. Idaho Public Utilties Comm 'n, 138 Idao 476,65 P.3d 498 (2003) .............................11
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Idaho State Homebuilders v. Washington Water Power, 107 Idao 415, 421,690
P.2d 350 (1984).........................................................................................................................22
Industrial Customers of Idaho Power v. Idaho Public Utilities Comm 'n, 200 P.u.R.
4th 371, 134 Idao 285, 288, 1 P.3d 786, 789 (2000) ......................................................... 10, 11
K NEnergy, Inc., v. FE.R.C, 133 P.U.R. 4th 607, 968 F.2d 1295, 1300 (C.A.D.C.1992).......... 16
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, i Key Transp., Inc., v. Trans Magic Airlines Corp., 96 Idaho 110, 112-13,524 P.2d
1338, 1340-41 (1974)................................................................................................................10
Pacifc Gas & Electric Company v. Damé Construction Co., Inc., 191 Cal.App.3d 233,
236 CaLRptr. 351 (1987) .......................................................................................................... 27
Rosebud Enterprises v. Idaho Public Utilties Comm 'n, 128 Idaho 624, 631,917
P.2d 781, 788 (1996)................................................................................................................. 11
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.J Rosebud Enterprises, Inc., v. Idaho Public Utilities Comm 'n, 128 Idaho 609, 618,
917P.2d 766, 775 (1996)..............................................................................,......................11,12
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State ex rel Rich v. Idaho Power Co., 32 P.U.R. 3d 75,81 Idaho 487,346 P.2d
596 (1959)...........................................................................................................................28,29
Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idao 368, 376, 597 P.2d
1058, 1066 (1979)..................................................................................................................... 11
Vilage of Lapwai v. Allgier, 78 Idaho 124, 129,229 P.2d 475,479 (1956)......................... 26, 27
Washington Water Power Company v. Idaho Public Utilties Commission, 101
Idaho 567, 575, 617 P.2d 1242, 1250 (1980)............................................................................12
Washington Water Power Company v. Kootenai Environmental Allance, 99 Idao
875,591 P.2d 122 (1979).......................................................................................................... 19
Rules
IDAPA 31.01.01.201 ......................................................................................................................2
Statutes
Idaho Code § 40-210.................................................................................................................9,25
Idaho Code § 61-301................................................................................................... 15,21,22,23
Idaho Code § 61-302.....................................................................................................................21
Idaho Code § 61-332A..................................................................................................................22
Idaho Code § 61-501...............................................................................................................20,23
Idaho Code § 61-502......................................................................................................... 15,20,23
Idaho Code § 61-503................................................................................................... 16,21,22,23
Idaho Code § 61-507.....................................................................................................................20
Idaho Code § 61-515..................................................................................................................... 16
Idaho Code § 61-624.......................................................................................................................4
Idao Code § 61 -626. ....... ..... ....... ... ............ ..... ...... ... .................. ............................. ... ..... ..... .... .... 10
Idaho Code § 61-629.........................................................................................................10, 11,31
Idaho Code § 62-705 ....................................................................................................................... 4
IPUC Orders
Order No. 30687 ............................................................. .......................................................... ...... 2
Order No. 30719 .............................................................................................................................2
Order No. 30746 .............................................................................................................................3
Order No. 30853 .................................................................................................................... passim
Order No. 30883 ......................................................................................................................... 3, 8
Order No. 30955 .................................................................................................................... passim
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Other Authorities
Ada County Highway Distrct Resolution 330 ............................................................................. 29
Arcle 7 § 17 of the Idaho Constitution ... .... ...... ...... .... ..... ..... ............... ......... ....... ............ ..... ........ 7
Aricle 8 § 2 of the Idaho Constitution. ............ ............ ..... ...... .... ... ....... .... ............ ............ ... ... ... .... 7
Aricle V, Section 9 of the. Idaho Constitution... .......... ..... .............. .... ........ ........... ..... ...... ........... 10
Californa Public Utilities Code § 6297. ..... .... .... ........... ..... ......................... .......... ...... ...... ........... 28
Electrc Supplier Stãbilization Act (codified at Idao Code §§ 61-332 though 61-334C).......... 22
Ada County Highway Distrct Impact Fee Ordinance No. 202 .................................................... 17
1 Ada County Righway Distrct Impact Fee Ordince No. 208 .................................................... 17
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I. STATEMENT OF CASE
A. Nature of the Case.
In this case the Ada County Highway Distrct ("ACHD") is challenging the jursdiction
of the Idaho Public' Utilities Commission's ("Commssion") to set rates and charges for the
services of regulated utilities under Title 61 of the Idaho Code. Commssion Order No. 30955
issued in Case No. IPC-E-08-22 modifies Idaho Power's line extension taff to specificaly
requie private pares to reimburse Idaho Power for costs it incurs to relocate facilities in.the
public rights-of-way to benefit the private par. The line extension taiff, commonly referred to
as Rule H, already includes language addressing reimbursement for the costs of relocating Idaho
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. ¡ Power's facilities outside public rights-of-way.
¡ ACHD has framed the issue before ths Cour as an attempt by the Commssion to usur
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ACHD's exclusive jursdiction over public rights-of-way. Ths is a red herrg. The
Commssion's Order clearly recognzes the exclusive authority of ACHD and other highway
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districts over public rights-of-way. The Commission's exclusive jursdiction over utility rate
settng and ACHD's exclusive jursdiction over public rights-of-way do not confct in the
context of Idao Power's line extension tarff. Consequently, Commssion Order No. 30955's
exercise of jursdiction over utility facility relocation cost reimbursement to require private
beneficiares to reimburse Idaho Power where the relocation of facilities in public rights-of-way
confers a private benefit should be upheld.
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B. Course of Proceedings.
On October 30, 2008, Idaho Power Company ("Idaho Power" or "the Company") filed an
Application seeking authority to update and clarfy its line extension tarff. R. VoL. I, pp. 1-55.
. ì Specifically, the Company sought to update the charges that recover the costs it incurs forl
installing new servce lines and relocating existig electrc distrbution facilities for private
paries. The existing language on relocations was expanded to include recovery of utility
relocation costs with the public right-of-way from those receiving a private benefit. On
November 26,2008, the Commission issued a Notice of Application and Intervention Deadline.
Order No. 30687; R. VoL. I, pp. 94-97. Four paries petitioned to intervene and were granted
r~J intervention: the Building Contractors Association of Southwestern Idao ("BCA"), the City of
Nampa, The Kroger Company, and Association of Canyon County Highway Distcts
("ACCHD"). The Commssion issued its Notice of Paries on December 30, 2008. R. VoL. I,
\. J pp. 126-128.
Pursuant to Order No. 30687, the paries met on Janua 14, 2009, to discuss the
processing of this case. ACHD did not petition to intervene or paricipate in the preheag
conference. The paricipating pares agreed that the case did not require a techncal hearg or
pre-filed testimony and therefore recommended that the case be processed under Modified1 . . .Procedure with comments due no later than March 20, 2009. Order No. 30719; R. VoL. I, pp.
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i "Modified Procedure" refers to development of the Commission's record by wrtten submissions
following a preliminar Commission fmdig that the public interest may not require a hearg to consider the issues
presented in that proceeding. IDAPA 31.01.01.201.
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j 129-132. The comment deadline was subsequently extended until April 17,2009, with response
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comments due no later than May 1,2009. Order No. 30746; R. VoL. I, pp. 146-149.
On July 1, 2009, the Commission issued Order No. 30853 parially approving the
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Company's request to modify its line extension taff. R. VoL. II, pp. 313-326. The ACHD, City
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of Nampa, Association of Canyon County Highway Distcts (collectively "the Distcts"), and
the BCA all filed timely Petitions for Reconsideration. The Distrcts argued that the
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("Relocations in Public Road Rights-of-Way"). The BCA objected to changes to the line
extension rate strctue concerning "allowances" or credits for the instalation of new servce and
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"""" J the elimination of subdivision lot refuds. On July 29, 2009, Idao Power filed an Answer to the
I Petitions. R. VoL. II, pp. 383-404.
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In Order No. 30883 issued August 19,2009, the Commssion granted in par and denied
in par the Petitions for Reconsideration. R. VoL. III, pp. 405-410. The Commission granted
reconsideration to the Distrcts to review the legal arguents, scheduling briefs and an oral
argument on October 13, 2009. The Commission parially grted reconsideration to the BCA
and scheduled an evidentiar hearing regarding the appropriate amount for line extension
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allowances contaned in Rule H. The evidentiar hearg was held on October 20,2009. Post-
hearing reconsideration briefs were filed by BCA andIdaho Power on October 27,2009: R. VoL.
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VoL. IV, pp. 612-647.
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Afer reviewing the initial record and the reconsideration testimony and briefs, the
Commssion issued final Order No. 30955 on reconsideration afrming, rescinding, amending,
and clarfying pars of its intial Order pursuat to Idaho Code § 61-624. R. VoL. IV, pp. 648-
678. On Janua 10, 2010, ACHD filed an appeal to the Supreme Cour for the Commssion's
final Order. R. VoL. IV, pp. 679-683.
C. Statement of the Facts.
The vast majority of Idaho Power's distrbution facilities are located on public road
¡ rights-of-way. Trasmission facilities, because of their large size and for safety and operatig
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reasons, are generally located on private rights-of-way or on public land where the Company
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The desirability of utilizing public road rights-of-way to locate electrcal distrbution
facì1ties was recognized early in Idaho's history. In 1903, the Legislatue established Idaho
Code § 62-705, which granted electrc utilities the right to utì1ze all public roads, streets, and
highways for electric facilities so long as tht usage did not "incommode the public use of the
road, highway, street. . . ."
On October 30, 2008, Idaho Power applied to modify its line extension taff. R. VoL. 1,
pp. 1-55. Idaho Power proposed a new taff Section 10 entitled "Relocations in Public Road
Rights-of-Way" to specifically address the recovery of costs when the Company relocates its
facilities in public rights-of-way puruat to Idao Code § 62-705. The tarff identifies when and
to what extent the Company could recover costs it incured in relocating facilities from private
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beneficiaries2 such as real estate developers or adjacent landowners. This determination of cost
recovery from private paries involves only the Company and the afected private par. It has
no impact on the jursdiction of ACHD or the varous highway distrcts (hereiner referred to as
the "Public Road Agencies,,3) over their respective rights-of-way. Section 10 does not requie
cost recovery from Public Road Agenci~s for utility facility relocations that occur in public
rights-of way.
1.How Section 10 Allocates Utility Relocation Costs.
Section 10 provides a simple, tie-tested stadard for determinng whether the Company
or a private beneficiar should pay for utility relocations caused by road improvements. The
basic rue is that the private beneficiar should pay the same percentage of the utity relocation
costs as it pays for the underlyig road improvement costs. In sumary, the Commssion-
approved Section 10 rues provide:
2 Section 10 of the taff originally fied with the Application on October 30, 2008, defied a ''tird-par
beneficiar" as "private or public third pares such as real estate developers, local improvement distrcts, or adjacent
landowners." R. Vol. I, p.22.
At the Commission's direction in Order No. 30853, on August 28, 2009, Idaho Power clarfied this definition to
read: "Third-Par Beneficiar is any individual, fi or entity that provides fuding for road improvements
performed by a Public Road Agency as set fort in Section 10. A third-Par Beneficiar may include, but is not
limited to, real estate developers, Local Improvement Distrcts or adjacent landowners." R. VoL. II, p.415.
On Reconsideration, Commission Order No. 30955 ultiately renamed the defiition "Prvate Beneficiar," which
is "any individual, fi or entity that provides fuding for road improvements performed by a Public Road Agency
or compensates the Company for the Relocation of distrbution facilties as set fort in Section 10. A Private
Beneficiar may include, but is not limited to, real estate developers, adjacent landowners, or existing customers of
the Company." R. VoL. IV, pp. 664 and 677.
3 The Rule H line extension tarff approved by Commission Order No. 30955 defmes a "Public Road
Agency" as any state or local agency which constrcts, operates, maitains or adminisers public road rights-of-way
in Idao, including where appropriate the Idao Tranporttion Deparent, any city or county street deparent, or
a highway distrct. R. VoL. IV, p. 676. The approved ta is included in its entiety in the Addendwn to ths Brief.
RESPONDENT IDAHO POWER COMPAN'S BRIF - 5
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a.If the Public Road Agency determnes that it will use 100 percent of its
own fuds for the road improvements tht necessitate the utility relocation, then Idao Power
would pay 100 percent of the utility relocation costs it incurs. R. VoL. IV, p. 677.
b. If the Public Road Agency determines that 100 percent of the cost of a
road widening or other improvement should be fuded by payments from a par other than the
Public Road Agency, "a private beneficiar," then it will be presumed that the highway project is
being perfonned to exclusively benefit the private beneficiar makg the contrbution. In tht
instace, utility relocation costs would be reimbursed 100 percent by the private beneficiar. !d.
c. If the Public Road Agency determines a highway improvement should be
fuded parially by using the Public Road Agency's own fuds and parially by a contrbution
from a private beneficiar, then the utility would collect the same percentage of relocation costs
from the private beneficiar. Id. For example, if the Public Road Agency was fudig 40
percent of the cost of a right-of-way improvement from its own fuds and a private beneficiar
was paying an impact fee or otherwse fuding the other 60 percent of the cost of the right-of-
way improvement, the utility would collect 60 percent of its relocation expense from the private
beneficiar and the balance would be recovered in the Company's electrc rates.
The cost-shag argement outlined in Section lOis adstratively simple and
allows the Public Road Agency to determe to what degree the road improvement and resulting
utility relocation are for a public purose versus the benefit of a private par. Ths policy also
ensures that the costs of relocations are borne by the pares benefittng from the requests and not
by all of the Company's customers though higher electrc rates.
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2. The Commission's Initial Order No. 30853.
On July 1,2009, the Commission issued fial Order No. 30853. R. VoL. II, pp. 313-326.
Idaho Power had proposed, and the Commssion approved, Section 10 as a mechanism to
determine who, as between Idaho Power and pnvate beneficiaries, has responsibility for the costs
of facility relocations in public nghts-of-way. The Commission specifically noted that Section
lOin no way grants Idaho Power or the Commssion authonty to impose relocation costs on a
Public Road Agency. Id., p. 325. The Commssion found it persuasive tht if a Public Road
Agency determnes that a pnvate thrd par should pay for a portion of a road improvement
project, it is a reasonable and appropnate indication of responsibility for the allocation of utility
relocation costs incured as a result of the road improvement project. Id Furermore, based on
concerns noted by the paries, Idaho Power was directed to clarfy and resubmit the definitions of
"Local Improvement Distrct" and "Thrd-Par Beneficiar." Id.
3. ACHD's Petition for Reconsideration.
ACHD filed a Petition for Reconsideration on July 22,2009, requestng reconsideration
and clarfication on the Commssion's approval of Section 10 of Idaho Power's line extension
tarff relating to utility relocations. R. VoL. II, pp. 341-357. ACHD requested reconsideration on
the grounds that Section 10 of Rile H usurs the exclusive jursdiction of Public Road Agencies
over public nghts-of-way and that the portions of Rile H requirg Local Improvement Distrcts
to pay any portion of relocation costs violate Arcle 8 § 2 and Aricle 7 § 17 of the Idao
Constitution. The ACCHD and the City of Nampa filed simlar Petitions for Reconsideration.
Id, pp. 379-382. Additionaly, the BCA petitioned for reconsideration of unelated portions of
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Rule H. Id., pp. 358-372. Idao Power filed an Answer to the Petitions on July 29, 2009. Id.,
383-404.
On August 19,2009, the Commssion issued Order No. 30883 grating reconsideration,
setting fort a briefing schedule and asking Idaho Power to make certain clarfications to its
proposed Rule H. Id. at VoL. III, pp. 405-410. Idaho Power filed the clarfications requested by
the Commission on August 28, 2009. R. VoL. III, pp. 411-427. In recogntion that the ACHD
and Idaho Transportation Deparent had already adopted reguations related to utility
relocations on public rights-of-way, Idao Power proposed a new provision to Section 10 of Rule
H to make clear that their existing regulations would not be subject to and in no way conflict
with Section 10 of Rule H. The proposed "savings clause" stated:
Ths Section shall not apply to utility relocations withn public
road rights-of-way of Public Road Agencies which have adopted
legally bindig guidelines for the allocation of utility relocations
costs between the utility and Third-Par Beneficiares that are
substatially similar to the rules set out in Section 10 of Rule H.
Id., p. 427.
4. The Commission's Order on Reconsideration.
After briefing and oral arguent, the Idaho Public Utilities Commssion issued Order No.
30955. R. VoL. IV, pp. 648-678. In that Order, the Commssion approved a modified version of
Section 10. The Commssion generally held that Section 10 does not usur the Public Road
Agencies' exclusive jursdiction over public rights-of-way withn their distcts. Id, p. 658.
Although it is reasonable to expect a Local Improvement Distrct to include the cost of necessar
utility facility relocations as par of the tota fudig amount of the distrct improvement, the
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Commission "was not persuaded that the Commission could compel such reimbursement" and
declined to include language in Section 10 requiring Local Improvement Distrcts to pay
relocation costs. Id., p. 662. Thus, the Commssion replaced the term "Thrd-Pary
Beneficiares," which included Local Improvement Distrcts, with "Private Beneficiares," which
does not include any governenta entities. Id., pp. 660-664 and p. 676.
The Idaho Public Utilities Commssion also rejected Idaho Power's proposal that Section
10 require payment of relocation costs to Idaho Power "in advance of the company's relocation
work" because. Idaho Power had other ways to recover its relocation costs, includig the
termnation of service to a developer that refuses to pay the relocation costs. Id., pp. 665-666.
The Commission approved the newly added "savings clause" to Section 10, clarng that
Section 10 "shall not apply to Relocations V\thin public road rights-of-way of Public Road
Agencies which have adopted legally binding gudelines for the allocation of utilty relocations
costs between the Company and other pares that are substatially similar to the rules set out in
Section 10 of Rule H.,,4 R. VoL. IV, p. 678.
On its own intiative, the Idaho Public Utilities Commssion also added a new section,
Section 11, to Rule H that incorporated provisions of Idaho Code § 40-210. Section 11 directs
Idao Power Company to parcipate in road project design or development meetigs if the
project may require relocation of distrbution facilities to mimie relocation expense to the
maxum extent possible.
4 This "savings clause" la nguge was approved in Order No. 30955 issued on November 30, 2009.
Although simlar, the language quoted on page 24 of ACHD's Appellant Brief was taen from the Company's
August 28,2009, filing and not wholly adopted by the Commission. See R. VoL.lI, p. 427.
RESPONDENT IDAHO POWER COMPAN'S BRIF - 9
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Commission Order No. 30955 directed Idaho Power to file new tariff sheets consistent
with the Order. R. VoL. IV, p. 674. The Commission adopted the Company's tarff on
November 30, 2009, for rates and charges effective December 1,2009.5
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On Janua 10, 2010, ACHD filed an appeal to the Supreme Cour from the
Commission's final Order. R. VoL. IV, pp. 679-683.
II. ISSUES PRESENTED ON APPEAL
A. Whether the Commission Has Juridiction Under Idaho Law to Establish How a
Utilty Wil Recover the Costs It Incurred to Relocate Its Facilties Within Public
Rights-of-Way From Private Beneficiaries.
B. Whether Commission Order No. 30955 Is a Lawful Exercise of the Commission's
Authority to Regulate Utility Operating Expenditures and Recovery Thereof.
III. STANARD OF REVIEW
The standard of review on appeal from an Order of the Commission has been clearly
ariculated in Idaho law. Arcle V, Section 9 of the Idaho Constitution provides that the
Supreme' Cour shall have jursdiction to review on appeal any Order of the Commssion. An
issue not presented to the Commission for rehearng wil not be considered on appeal. Idaho
-1 Code §§ 61-626 and 61-629; Industrial Customers of Idaho Power v. Idaho Public Utilities
Comm 'n, 200 P.U.R. 4th 371, 134 Idaho 285,288, 1 P.3d 786, 789 (2000); Key Transp., Inc., v.
Trans Magic Airlines Corp., 96 Idaho 110, 112-13,524 P.2d 1338, 1340-41 (1974). Idao Code
§ 61-629 defines the scope of the Supreme Cour's limted review and states in relevant par:
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The review on appeal shall not be extended fuer than to
determne whether the commssion has regularly pursued its
authority, including a determination of whether the Order appealed
from violates any right of the appellant under the Constitution of
the United States or of the state of Idaho.
See also Rosebud Enterprises, Inc., v. Idaho Public Utilities Comm 'n, 128 Idaho 609, 618, 917
P.2d 766, 775 (1996); A. W Brown Co., Inc., v. Idaho Power Co., 121 Idaho 812, 815, 828 P.2d
841,844 (1992).
In 2000, the Supreme Cour recited the review stadards and degree of deference that
¡ must be given to decisions of the Commssion. In Industrial Customers, the Cour stated that
J review of Commssion determinations as to "questions of law" is limted to determg whether
J the Commission has regularly. pursued its authority and whether the constitutiona rights of the
i appellant have been violated. Industrial Customers, 134 Idaho at 288, 1 P.3d at 789. RegardigI"questions of fact," the Cour stated that where the Commission's findigs are supported by
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Commssion's decision. Id; Hulet v. Idaho Public Utilties Comm 'n, 138 Idaho 476, 65 P.3d
498 (2003); Rosebud Enterprises v. Idaho Public Utilties Comm 'n, 128 Idao 624, 631, 917
~P.2d 781, 788 (1996). See also A. W Brown, 121 Idao at 815-16, 828 P.2d at 844-45 and
Empire Lumber Co. v. Washington Water Power, 114 Idaho 191, 193, 755 P.2d 1229, 1231
(1987), cert. denied, 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988).
!.J The Commssion's findings of fact are to be sustaned uness it appears tht the clear
weight of the evidence is against its conclusion or that the evidence is stong and persuaive that
the Commission abused its discretion. A. W Brown, 121 Idaho at 816, 828 P.2d at 845 Utah-i
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Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 376, 597 P.2d 1058, 1066 (1979).
Ths Cour will not displace the Commssion's fidings of fact when faced with confictig
evidence, even though the Cour would have made a different choice had the matter been before
it de novo. Rosebud Enterprises, 128 Idao at 618, 917 P.2d at 785; Hayden Pines Water
Company v. IPUC, 111 Idaho 331, 336, 723 P.2d 875,880 (1986).
The Commssion's findings need not tae any parcular form so long as they fairly
disclose the basic facts upon which the Commssion relies and support the ultimate conclusions.
What is essential are sufficient fidings to permit the reviewig cour to determe that the
Commission has not acted arbitrarly. Rosebud Enterprises, 128 Idaho at 624, 917 P.2d at781;
Boise Water Corp. v. Idaho Public Utilties Comm'n, 97 Idao 832, 840, 555 P.2d 163, 171
(1976); Washington Water Power Company v. Idaho Public Utilties Commission, 101 Idao
567,575,617 P.2d 1242, 1250 (1980).
IV. ARGUMNT
A. The Purpose of Section 10: "Relocation in Public Road Rights-of-Way."
Idaho Power proposed Section 10 for several reasons: (1) to reduce the incidence of
Public Road Agencies shifting relocation costs from local developers and landowners to Idao
Power's mai body of customers, (2) to explicitly recognize the Commission's authority to
determne how Idaho Power recovers relocation costs from private paries for utility facilities
located in public rights-of-way, (3) to provide unformty in Idaho Power's dealings with the
dozens of municipalities and highway distrcts within its servce terrtory, and (4) to conf the
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Commssion's authority to require private pares to reimburse Idaho Power for relocation costs
the private paries cause Idaho Power to incur.
1. Reduce the Shiftig of Developer Expenses to Idaho Power Customers.
First, Idao Power believed it was necessar to add Section 10 to address instaces where
Public Road Agencies inappropriately facilitate the shift of relocation expenses from developers
to Idao Power and its customers. Idao Power witness David R. Lowr presented direct
testiony describing ths recent trend toward shifting relocation expenses. Tr. VoL. II, pp. 5-8.
To ilustrate ths problem, Mr. Lowr described how the developers of the Gateway Mall in
Nampa submitted plans to have the intersection of Happy Valley Road and Stam Lane rebuilt
as a new entrance into the MalL. When informed that the project was postpned for a year, Idaho
Power refuded the collected relocation cost for the project to the developer at the developer's
request. Shorty thereafer, a request for relocation was received from the City of Nampa for the
same intersection with no disclosure of the interest of a thd-par developer. Mr. Lowr noted
that "it was only though the communcation of Idao Power employees that the discovery of the
thrd-pary developer beneficiar interest in the 'city's' project was made." Tr. VoL. II, p. 159,
LL. 2-13.
ACHD has acknowledged the cost-shifting problem in the past. ACHD argued in the
underlying case that if the Commssion approves Section 10 of Rule H, ths wil "arificially and
inappropriately inject the allocation of utility relocation costs into any development agreement
I between highway distrcts and thd pares." R. VoL. III, p. 469. Nampa and ACCHD made the
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Section 10 and its treatment of third par beneficiares would
interfere with the ability of the public road agencies to cooperate
with other governent entities, with neighborhoods, and with
developments. Rather than being in a position to negotiate and
cooperate between paries, Section 10 imposes a scheme where
now these entities are in competition with each other to minmize
their contrbution to the project and therefore avoid Idao 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 paries.
R. VoL. III, p. 437.
These statements indicate that in their dealings with local developers, one of the Public
Road Agencies' principal concern would be makg sure that payments to Idaho Power for
J utility relocations are minimized to encourage local economic development. Idaho Power is
concerned that without Section 10, ths will be done at the expense of Idaho Power's customers
outside of the Public Road Agencies' distrcts.
Because there are so many Public Road Agencies in the Company's servce area, the
Company concluded that the most practical way to establish a unform approach across its entire
servce area was to propose Section lOin its line extension taff. In effect, ths would provide a
general frework to make cost allocations of utility relocations more transparent and less
susceptible to inappropriate subsidization of local economic development.
Neither Idaho Power nor the Commission disagrees with ACHD's contention that the
public benefits from road projects fuded by entities of governent, thd paries, and
developers. R. VoL. II, p. 399. However, utility rates that socialize costs of utility relocation in
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- the majority of which live outside the area served by the public road agency - canot be just
and reasonable as required by Idaho Code §§ 61-301 and -502. Idaho Power customers in
Pocatello do not benefit from roadway improvements solely benefitting a new shopping center in
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Section 10 addresses this issue of fudaental fairness and is squarely with the Commssion's
jursdiction.
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2.Recognize Commission Rate Setting Jurisdiction, Over Reimbursement. of
Company Relocation Costs.
Second, for at least 30 years, Idaho Power's line extension tarffs have required that
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pares who request the relocation of Company utility facilities outside public rights-of-way are
obligated to pay for the costs of the relocations. R. VoL. II, p. 272. However, the taff did not
address how the utility's relocation costs should be assigned inside public rights-of-way. Idao
Power therefore proposed Section 10 to resolve the ambiguity and clearly delineate cost
responsibility for private paries requesting utility relocations within public rights-of-way.
I.J 3.Uniformly Allocate Idaho Power's Relocation Costs to Priate Beneficiaries.
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Third, Section 10 allocates the costs of Idao Power's relocation of facilities with the
public right-of-way in a unform maner to private beneficiares, no matter which Public Road
Agency is involved. Idaho Power has dealings with the dozens of muncipalities and highway
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distrcts with its service terrtory, some of which do not address cost allocation for relocation of
utility facilities located in the public rights-of-way in their ordinaces. By incorporating such
languge into Section 10, Idaho Power offers consistency and unformty to its road construction
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counterpars thoughout southern Idaho.
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4. Assess Utility Costs to "Cost Causers."
Finally, Section 10 is intended, to the extent permtted by law, to accomplish exactly
what the rest of Idaho Power's line extension tariff is intended to accomplish - to recover costs
from those paries that cause Idaho Power to incur costs. Idaho Power intiated ths proceeding
to implement changes to its line extension ta in fuerance of one of the fudamenta
principles of utility regulation; tht to the extent practicable, utilty costs should be paid by those
entities that cause the utility to incur the costs. This cost of servce principle is often referred to
as "cost-causation" and promotes both fairness and accurate consumer price signals. "Simply
put, it has been traditionally required that all approved rates reflect to some degree the costs
actually caused by the customer who must pay them." K N Energy, Inc., v. F.E.R.C., 133 P.U.R.
4th 607, 968 F.2d 1295, 1300 (C.A.D.C.1992). Idaho Power's Rule H taff is a good example of
how the Commssion exercises its jursdiction to address "cost-causation" by requirg those
entities tht cause Idao Power to incur additiona costs to pay those additional costs. If the
"cost-causers" do not pay, the electrc rates for the Company's other customers will be higher
than they would otherwse be. Order No. 30955, p. 13; R. VoL. IV, p. 660. If that result is
allowed, Idaho Power's rates are neither "just and reasonable" as requied by Idao Code § 61-
503 nor non-discrimitory and non-preferential as required by Idaho Code § 61-515. Id.
Ths priciple is not unamiliar to ACHD and other Public Road Agencies. In the past,
they have expressed the need to assess and recover impact fees from entities that requie the
Public Road Agencies to constrct road improvements. Public Road Agencies, like Idaho
Power, have frequently emphaized the need to have "growt pay its way." For example, on
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August 26, 2009, ACHD adopted Impact Fee Ordinance No. 208 (replacing Impact Fee
Ordice No. 202) with intent to "promote orderly growt and development by estblishing
unform stdads by which those who benefit from new growth and development pay a
proportionate share of the cost of new public facilities under the jursdiction of the Ada County
Highway Distrct which are needed to serve new growt and development . . . .,,6 Recoverig
costs of utility relocations is no different. Growt should pay its way.
B.The Exclusive Jurisdiction of the Public Road Agencies Over Public Road Rights-of-
Way is Undisputed.
Order Nos. 30853 and 30955 acknowledge that the Public Road Agencies have exclusive
jursdiction and authority to" requie Idaho Power to relocate its facilities in public road rights-of-
way, at no cost to the Public Road Agency, where the facilities would incommode the public use.
R. VoL. II, p. 324 and VoL. IV, p. 656. Public Road Agencies have exclusive general supervision
and jurisdiction over all highways and public rights-of-way withn their highway system and full
power to establish design standards and establish use stadards. Id. Consequently, Idaho Power
only has a permssive right to use the public rights-of-way for its facilities and if a Public Road
Agency directs Idaho Power to relocate its facilities to a new location in the public right-of-way
because those facilities "incommode the public," ths does not constitute a tag of Idaho
Power's propert. These points oflaw are not in dispute.
All paries agree that Public Road Agencies like ACHD have authority to determe
when relocation of utility facilities in public rights-of-way is necessar. "Although highway
6 Ada County Highway Distct Impact Fee Ordinance No. 208 can be found at
htt://ww.achd.ada.id.uslDeparents/ROWDSlDocs/mpact_Fees/Ordinance/Fina1/1_ Ord _ 20S.pdf.
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distrcts have broad powers and authority over streets and highways, it must be held in balance
with the statutory responsibilities of other entities." Alpert v. Boise Water Corp., 1 18 Idaho 136,
143, 795 P.2d 298,305 (1990) citing Worley Highway Dist. v. Kootenai County, 104 Idaho 833,
663 P.2d 1135 (Ct.App. 1983). The authority to requie relocation does not give Public Road
Agencies authority to decide if the utility will receive any subsequent reimbursement from third
pares other than the general public if private pares also benefit from the facilities relocation.
For if Public Road Agencies had that authority, how would they institute a utility rate or charge
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to recover the cost from private beneficiares? Because the cost of relocatig utiity facilties
directly bears on utility rates and charges, reimbursement of utilty relocation expenses must fall
. r withn the jursdiction of the Commssion.
C. The Commission Has Jurisdiction Under Idaho Law to Determine Which Costs
Incurred to Relocate Utilty Facilties Within the Public Road Rights-or-Way May
Be Collected From Private Beneficiaries.
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It is ACHD's position that Public Road Agencies have sole and complete jursdiction to
determe when relocation. is required to avoid "incommoding the public." Idaho Power agrees.
paries benefitting from the road improvement and relocation. It is ths second step that
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encroaches on the Commssion's jurisdiction. The Commission has an obligation to protect the
public interest, which covers every citizen of the state of Idaho receiving utility servce from
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determine utility rates and charges, the Commission has exclusive jursdiction.
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1. Commission Has Broad Authority Within Its Limited Jurisdiction.
ACHD correctly notes in its Brief that the jursdiction of the Commission is limited to
that expressly granted by the Legislatue. Washington Water Power Company v. Kootenai
Environmental Allance, 99 Idaho 875, 591 P.2d 122 (1979). Idaho Power agrees. However, it
canot be seriously argued (and ACHD does not so argue) tht the Commssion does. not have
the authority to. regulate how utilities will recover the costs of relocatig facilities in their rates,
and charges. Ths includes the authority to require the beneficiares of a utilty facilties
relocation to financially contrbute and offset the cost of that relocation. Such contrbutions
afect rates because if the utility receives a contribution in aid of constrction, it does not have to
include those costs in its rates, thereby reducing upward pressure on rates.
In spite of this long-stading principle of cost-causation ratemakg, ACHD in effect
argues that in this one situation the Legislatue has divested the Commssion of its authority to
determe how utilities will recover the cost of relocatig utilty facilities in their rates. ACHD
inists that in ths one instance, the Legislatue intended that the reguation of how utilities
recover the costs of relocating their facilties should be handed over to the dozens of stte and
local Public Road Agencies in Idao Power's service terrtory.
Idaho Power does not believe any intent to limit the Commssion's jursdiction to
regulate utilty cost recovery is manfested in any of the cases or statutes cited by ACHD.
Intead, Idaho Power contends that the Commssion has been given exclusive jursdiction to
determine utility rates and charges arsing out of the cost of relocation of utilty facilities. The
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Company's position is supported by Idaho statutes and case law. Idao Code § 61-501 provides
as follows:
INESTMET OF AUTHORITY. The public utilities
commission is hereby vested with power and jursdiction to
supervise and regulate every public utility in the state and to do all
thgs necessar to car out the spirit and intent of the provisions
of this act.
Idaho Code § 61-502 provides:
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DETERMINATION OF RATES. Whenever the commssion, afer
a hearng had upon its own motion or upon complaint, shall find
that the rates, fares, tolls, rentals, charges or classifications, or any
of them, demanded, observed, charged or collected by any .public
utility for . any servce or product or commodity, or in connection
therewith, includig the rates. or fares for excursions or
commutation tickets, or that the rules, regulations, practices, or
contracts or any of them, affecting such rates, fares, tolls,
rentas, charges or classifications, or any of them, are unjust,
uneasonable, discrinatory or preferential, or in any wise in
violation of any provision of law, or that such rates, fares, tolls,
rentals, charges or classifications are insuffcient, the commission
shall determine the just, reasonable or suffcient rates, fares, tolls,
rentas, charges, classifications, rules, regulations, practices or
contracts to be thereafer observed and in force and shall fi the
same by order as hereinafter provided, and shall, under such
rues and regulations as the commssion may prescribe, fix the
reasonable maxmum rates to be charged for water by any public
utility coming with the provisions of ths act relatig to the sale
of water. (Emphasis added.) .
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Idaho Cod~ § 61-507 provides:
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DETERMINATION OF RULES AND REGULATIONS. The
commssion shall prescribe rules and regulations for the
penormance of any servce or the fushings of any commodity
of the character fushed or supplied by any public utility, and, on
proper demand and tender of rates, such public utility shall fush
such commodity or render such service with the time and upon
the conditions provided in such rues. (Emphais added.)
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These sections of the Idaho Code make clear that the Legislatue has granted the
Commission broad authority to regulate the practices and contracts of utilties as they affect
rates. They also make it clear that the Commission has the authority to determne jus and
reasonable utilty practices and contracts, and to issue orders addressing those practices.
Idaho Code § 61-503 provides:
POWER TO INESTIGATE AND FIX RATES AND
REGULATIONS. The commssion shall have power, upon a
hearng, had upon its own motion or upon complait, to investigate
a single rate, fare, toll, rental, charge, classification, rule,
reguation, contract or practice, or any number thereof, or the
entire schedule or schedules of rates, fares, tolls, rentas, charges,
classifcations, rues, regulations, contracts or practices, or any
thereof, of any public utility, and to establish new rates, fares, tolls,
rentals, charges, classifications, rules, regulations, contracts or
practices or schedule or schedules in lieu thereof.
Idaho Code § 61-301 provides:
CHAGES ruST AN REASONABLE. All charges made,
demanded or received by any public utity, or by any two (2) or
more public utilities, for any product or commodity fushed or to
be fushed or any service rendered or to be rendered shall be
just and reasonable. Every unjust or uneasonable charge made,
demanded or received for such product or commodity or service is
hereby prohibited and declared unawf. (Emphais added.)
Idaho Code § 61-302 also provides:
MAINTENANCE OF ADEQUATE SERVICE. Every public
utility shal fush, provide and maita such servce,
instruentaities, equipment and facilties as shall promote the
safety, health, comfort and convenience of its patrons, employees
and the public, and as shal be in all respects adequate, effcient,
jus and reasonable.
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Whle ACHD argues on page 21 of its Appellate Bnef that facilities relocation is not a
"service" for which the Commssion can set a charge because it is not "electrc servce" as
defined by Idaho Code § 61-332A,7 these foregoing sections are not so narowly drawn. Idaho
Code §§ 61-301 and 61-503 require the Commission to set just and reasonable charges for any
utility commodity fushed or any service rendered. Relocating electrc facilities to
accommodate the interests of others is a service for which Idaho Power collects a charge. A
relocation charge is one of the nonrecurg charges imposed on new customers to extend
existing distrbution line referenced in the Homebuilders decision. Idaho State Homebuilders v.
Washington Water Power, 107 Idaho 415, 421, 690 P.2d 350 (1984). Such charges are common
in utility regulation and the Commssion has set charges to recover the costs of utilty services
such as these for decades.
ACHD argues that Section 10 adopted by the Commssion exceeds the authonty granted
to the Commission by the Idaho Constitution and Legislatue. Idaho Power disagrees. In the
case of Grindstone Butte Mutual Canal Co. v. Idaho Public Utilities Commission, 102 Idao 175,
627 P.2d 804 (1981), the Idao Supreme Cour analyzed the constitutional and statutory
limitations placed on the Commssion and found the Commission ha broad authonty over a
public utility's rates and charges. The Cour stated:
Appellants contend that the Commssion acted outside its
constitutional and statutory limtations by givig consideration to
the concepts of conservation, optium use and resource allocation.
We do not agree. While the Idaho Public Utilties Commission is a
body with statutonly defined jursdiction, it is also tre tht the
7 The defiition of "electric service" pertais specifcally to the Electrc Supplier Stabiliztion Act codified
at Idaho Code §§ 61-332 though 61-334C.
RESPONDENT IDAHO POWER COMPANY'S BRIF - 22
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Commission operates in the public interest to insure that every
public utility operates as shall promote the safety, health, comfort
of the public and as shall be in all respects adequate, effcient, just
and reasonable. I.C. §§ 61-301 & 61-302. The power to fix rates
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, uneasonable,
discrinatory 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 Commssion to exercise the powers
expressly granted should be aforded.' 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).
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Section 10 of Idao Power's Rule H falls squaely within the Commssion's grant of
authority as described in the above-cited cases and statutes. There is nothing in Idaho Code §§
61-301, -501, -502, or -503 to suggest that the Legislatue divested the Commission of its
authority to determe how utiities will recover the cost of relocatig utiity facilities in their
rates if public right-of-way relocations are involved. In these statues, the Legislatue invested
the Commission with broad authority to regulate the services, practices, and contracts of utilties
-- as they afect customer rates.
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The Commssion is charged with ensurg that costs of utility facilities relocation have
not been uneasonably charged to Idao Power customers when, in fact, the relocation of utility
facilties wholly or parially benefits a person or entity other th the public. If costs are being
uneasonably allocated, the Commission has the authority to provide a remedy. Ths
Commssion's authority is entirely separate from the jursdiction of Public Road Agencies to
determe when relocations with the public rights-of-way must be made.
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2. The Commission Does Not Exceed Its Jurisdiction.
Although much is made of the Public Road Agencies' exclusive jursdiction over the
supervision, constrction, operation, and maintenance of highways withi their distcts, Section
10 of Idao Power's Rule H tarff addresses the entiely separate issue of whether the utility's
cost of relocation should be borne by the utility (and its customers) or by a third par who
over its rights-of-way. If Idao Power seeks reimbursement from a private beneficiar for
relocation costs assigned to the Company by a Public Road Agency, it should be of no concern to
the Public Road Agency (which is not a pary to subsequent reimbursement dealings).
Moreover, the Commssion's Order does not seek to contravene the common law rue
that the utility's use of the public road right-of-way is subordinate to the paramount use of public
road right-of-way if that use interferes with the public benefit. Section 10 does not require
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relocation is required to benefit the public. The Commission would have jursdiction only over
the portion of the relocation paid the by utility, and the utility's subsequent collection of the
proportonal amount that benefitted a private par.
ACHD's misinterprets how Section 10 will apply to recovery of utilty relocation
expenses fróm private beneficiares. ACHD believes that Section 10 will "preempt" public road
agency regulations that are not substatially simlar to Section 10. Appellat Brief at p. 26; Tr.
at 58, LL. 1-4. Ths conclusion is inaccurate - no language exists anywhere in Section 10 that
RESPONDENT IDAHO POWER COMPAN'S BRIF - 24
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would prevent a Public Road Agency ordinance from determining the relocation cost
responsibility to the utility as required by the Public Road Agency. The Commssion only has
ratemakng jursdiction to determe how Idaho Power must recover its costs from private
beneficiares. There is no confict between the two. Ths is the point of Commssioner Smith's
ly
quotes cited on pages 15 and 26 of the Appellant's Brief and what ACHD continues to
misunderstd. As Commssioner Smith makes clear, "The tarff is only applicable to the utility
and the people who are tag services under the conditions where the rues apply. It canot
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invalidate your (ACHD's) resolution." Tr. VoL. I, p. 61, LL. 16-19. Moreover, the savings
clause should be viewed "as an accommodation of your (ACHD's) existg practices so that they
(Section 10 provisions) don't get in the way of what's already in place." Id, p. 61 L. 24 - p. 62,
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If the Public Road Agency's ordinance governng the initial relocation cost allocation is
different than Section 10 governg the utility's subsequent reimburement of its costs, so be it.
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operations or authority. In short, ACHD has no claim or injur resulting from the application of
Section 10 to the utility and private beneficiares. ACHD has no cost responsibility for utility
relocations in public rights-of-way.
ACHD also misunderstads the purose of Section 11, which directs the Company to
paricipate in public road project design or development meetings to eliminate or minie
relocation costs in public road rights-of-way. With the exception of Idaho Power, Section 11
imposes no affirative obligation on any par that is not aleady imposed by Idaho Code § 40-
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210. Section 11 makes it clear tht Idaho Power has more than the mere option to paricipate in
these meetings - it has a duty imposed by the Commission to parcipate and minimize costs to
its customers. If the Cour were to stre Section 1 1 from the Company's taff, Idao Code §
40-210 would stil apply by its terms and nothng would change.
The Commssion is obligated to protect the public interest and is charged with ensurg
that costs of utility facility relocation have not been uneasonably charged to Idaho Power
customers when, in fact, the relocation of utility facilities wholly or parially benefits a person or
entity other than the public. If costs are being uneasonably allocated, the Commission has the
authority to provide a remedy. It is reasonable and prudent tht the Commission should approve
rues that require the private par causing facility relocation to reimburse Idao Power so that
ì the cost of the public right-of-way relocation are not unfaily shifted to the Company's
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customers.
D.Commission Order No. 30955 Is a Lawful Exercise of the Commission's Jurisdiction
to Regulate Utiity Operatig Expenditures and Recovery Thereof.
ACHD directs the bulk of its Brief to describing the exclusive jursdiction the Public
Road Agencies possess to manage public highways and public rights-of-way with the Public
Road Agencies' respective geographic boundares. It characterizes Section 10 of the Company's
Rule H tarff as an encroachment on the Public Road Agencies' authority to exercise its ongoing
responsibilities for constructig, operating, and maitanig road systems.
ACHD cites Vilage of Lapwai v. Allgier, 78 Idao 124, 129,229 P.2d 475, 479 (1956)
as support for their position. Lapwai confrms the common law rue that municipalities, though
franchise agreements with utilities, exercise authority with their muncipal boundares to allow
RESPONDENT IDAHO POWER COMPANY'S BRIF - 26
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or disallow a utility to locate facilities in their streets and alleys. Lapwai, however, does not
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address the central question presented here, that is a utility's ability to obtain compensation from
private paries that receive a benefit when a city requires the relocation of utility facilities withn
the public right-of-way when that utility has a valid franchise to operate in that city.
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The Californa Cour of Appeal addressed ths issue of the common law rue in 1987
when it held a developer liable for costs incured in the relocation of Pacific Gas and Electrc
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development company, argued that PG&E was solely liable for the relocation costs because of
the common law rule that a franchised utility must bear its own costs of relocation when
requested to move its equipment by an authorized governental agency. Dame maitaed that
in the absence of express statutory authority, which PG&E admitted was lacking, a utility canot
shift ths obligation to others, even where a private developer undertes the improvements that
make the equipment relocation necessar. The Cour held that the common law rue, tht a
franchised utility must bear its own costs of relocation when requested to move its equipment by
an authoried governenta agency, does not apply to a dispute over relocation costs between a
~"-1 utility and a private developer. The Cour held that "where a private par, on its own initiative
and not that of the governent, develops a parcel of land and thereby creates or aggravates a
need for public improvement requirig the relocation of existing utility equipment, the private
par, and not the utility, must bear the necessar relocation costs." Pacifc Gas & Electric
Company v. Damé Con struction Co., Inc., 191 Cal.App.3d 233, 236 Cal.Rptr. 351 (1987).
Because PG&E's ratepayers were comparable to muncipal taxpayers protected from beag the
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cost burden by the common law rue codified in Californa Public Utilities Code § 6297, the
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Cour found that analogous reasonig favored imposing liability on Dame. By clarfyng Idaho
Power's line extension taiff to confi that private beneficiares must reimburse Idaho Power
for theÌr proportional share of public rights-of-way relocation expenses, the Commssion Ìs
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simply arculating that cost responsibility for the relocation of utilìty facilties must follow the
benefits derived by the relocatÌon.
J ACHD also cites State ex ref Rich v. Idaho Power Co., 32 P.U.R. 3d 75, 81 Idaho 487,
346 P.2d 596 (1959) in support of their position. Again, Rich does not speak to the issue
presented by Section 10 of the line extension taff. In the Rich case, the Idao Board of
Highway Directors had sought a declaratory judgment to determe the constitutionaity of a
I statute passed by the Idaho Legislatue in 1957 providing that utilities would be reimbursed out
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of dedicated state highway fuds for the cost of relocating their utility facilities located on any
federal-aid prima or secondar system or on the inter-state system of Idaho publìc highways,
when determined necessar by the Idaho Board of Highway Directors. WiIe Rich upheld the
common law rue that utilities locating facÌlìties Ìn public rights-of-way can be requied to
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~relocate their facilities at their own expense if the safety of the public requied Ìt, the principal
issue addressed in Rich was the source of fudig for the utilìty's cost of relocation. In Rich, the
cour decided that the recently passed statute requing utilty relocation costs be reimbursed to
the utility out of the dedicated state highway fud violated the Idaho Constitution's prohibition
on the lending of state credit.
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No such issue exists here. Under Idaho Power's proposed Section 10, public highway
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fuds are never used to reimburse Idaho Power for relocation expense. To the extent it is
applicable to ths cast; Rich is essentially a restatement of the common rue law. Neither Idao
Power nor the Commission seeks to contravene the common law rule tht the Company's use of
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the public road right-of-way is subordinate to the paramount use of public road right-of-way if
that use interferes with the public benefit. Section 10 does not requie any of the Public Road
I.1 Agencies to reimburse the Company for relocation costs where relocation of utility facilties in
the public right-of-way is requied. It is only in those cases where the road widenig or
improvement pricipally benefits a private par that the Commission must playa role to ensure
that the costs of the relocation are not unairly shifted to utility customers.
Although ACHD asserts repeatedl y that Section 10 of Rule H would be a material
abridgement of the Public Road Agencies' authority and would therefore compromise its ability
~to manage highways and roads, it does not provide any examples of a fudamenta management
fuction of the Public Road Agencies that will be adversely afected by Section 10 of Rule H. In
the case of the ACHD, it is diffcult to see how it could point out any material problems because
Idaho Power and ACHD have operated under Resolution 330,8 which is similar to Section 10 of
Rule H, for more than twenty years. For instace, ACHD refers to Section 10's silence on
improvements to public rights-of-way that would normally be paid for by a private developer but
for ACHD's determation tht it would have made that improvement with thee years. ACHD
8 Adopted in 1986, Resolution 330 establishes regulations for utility and sewer relocations within the
public rights-of-way under the jursdiction of ACHD. These reguations include the assignent of fiancial
, responsibilty and establishment of operational procedures. ACHD Appellant Brief, p. 4.
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Appellate Brief, pp. 6-7 and 24. As Company witness David Lowr explained, ths thee-year
exception is not a confict. Tr. Vol. II, p. 157, LL. 19-24.
If a private developer causes ACHD to accelerate road work that would have otherwse
been made by ACHD with thee years, Idao Power would be responsible for the cost of
relocatig its utility facilities for the .road work under both Resolution 330 and Section 10.
Under Section 10, Idaho Power may only recover relocation costs from a private developer if the
private developer pays for par or all of the road work requirig the utility relocations. Where
the ACHD road work would otherwse have been made by ACHD withn three years, the private
developer would not be required to pay for the road work, and thus would not be required to pay
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. ) for the resulting Idaho Power utility relocation work either. Thus, the result is the same under
1 both Resolution 330 and Section 10; in either case, I~aho Power is required to bear the cost of
relocatig its facilities for private related road work that would have otherwse been made by
~ ACHD with thee years.
¡ Section 10 of Rule H allows the Public Road Agencies to continue to: (1) fully exercise
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their authority to determine that Idao Power must relocate its facilities in public rights-of-way
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improvement will benefit a thd pary and collect that percentage from the thd par. Under
Section 10 of Rule H, Idaho Power will use the same percentage the Public Road Agency
initially used to allocate the costs of the road improvement to then seek reimbursement of the
Company's cost of relocation of Idao Power facilties from the same private beneficiaries that
contrbuted to the costs of the road improvement. If a dispute between Idao Power and a
RESPONDENT IDAHO POWER COMPANY'S BRIF - 30
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private beneficiar should arse concernng cost recovery by Idaho Power, the Commission
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would have jursdiction to resolve the reimbursement dispute.
IV. CONCLUSION
Idaho Power acknowledges the contiuing vitality of 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 tht use "incommodes the public." Idaho Power does not contest the Public
Road Agencies' authority to determine that the relocation of utility facilities is necessar, or to
require that the relocation be paid by the utility if the facilities are in a public right-of-
way. Section 10 does not encroach on the Public Road Agencies' authority in this regard; it only
establishes how Idaho Power must allocate those costs among its customers and private
beneficiares after the Public Road Agencies' have made their initial determination. However,
once Idaho Power has relocated its facilties as diected by the Public Road Agencies, they have
j no jursdiction to determe how the utility will seek subsequent reimbursement from private
paries benefitting from the facilities relocation. This is the separate and exclusive ratemakg
domain of the Commssion, which is invested with the authority to do all things necessar to
car out the spirt and intent of the Public Utilities Law to ensure that customer rates are "just
and reasonable." Consequently, Idao Power respectflly requests the Cour uphold the
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Commssion's fidigs in Order Nos. 30853 and 30955. Idaho Code § 61-629.
Respectfly submitted ths 16th day of July 2010.£Q.~~LISAD.NO~OM .
Attorney for Respondent Idaho Power Company
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16th day of July 2010 I served a tre and correct copy
of RESPONDENT IDAHO POWER COMPANY'S BRIEF upon the followig named paries by
the method indicated below, and addressed to the following:
Idaho Public Utilities Commission
Jean D. Jewell, Secretay
Idaho Public Utilities Commssion
472 West Washigton Street
P.O. Box 83720
Boise, Idaho 83720-0074
--Hand Delivered
U.S. Mail
~ Overnght Mail
FAX
-X Email jean.jeweiicmpuc.idaho.gov
Weldon B. Stutzan
Krstine A. Sasser
Deputy Attorney General
.. Idaho Public Utilities Commission
472 West Washigton
P.O. Box 83720
Boise, Idaho 83720-0074
--Hand Delivered
U.S. Mail
_ Overnght Mail
FAX
-X Email weldon.stutzancmpuc.idao.gov
krs.sasser($uc.idaho. gov
Building Contractors Association of
Southwestern Idaho
Michael C. Creamer
Michael P. Lawrence
GIVENS PURSLEY, LLP
601 West Banock Street
P.O. Box 2720
Boise, Idaho 83701-2720
Hand Delivered
-- U.S. Mail
_ Overnght Mail
FAX
-X Email mcccmgivenspursley.com
michaellawrencecmgivenspursley.com
Ada County Highway Distrct
Merlyn W. Clark
D. John Ashby
HAWLEY TROXELL ENmS &
HAWLEY,LLP
877 Mai Street, Suite 1000
P.O. Box 1617
Boise, Idaho 83701-1617
Hand Delivered
--U.S. Mail
_ Overnght Mail
FAX
-X Email mc1ark~awleytoxell.com
jashbycmhawleytoxell.com
RESPONDENT IDAHO POWER COMPAN'S BRIF - 32
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Attorneys for the Idaho Association of
Highway Districts, the Association of
Idaho Cities and the Idaho Association of
Counties
David E. Wynoop
SHERER & WYNOOP, LLP
730 Nort Main Street
P.O. Box31
Meridian, Idaho 83680
Hand Delivered
-lU.S. Mail
_ Overnght Mail
FAX
-X Email dwyooplawCigmail.com
df"- 12 t0deLisa D. NordstroÆ
RESPONDENT IDAHO POWER COMPAN'S BRIF - 33
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Idaho Power Company
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-1
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1, 2009
Per O.N. 30955
Jean D. Jewell SecretaryRULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
This rule applies to requests for electric service under Schedules 1, 4, 5, 7, 9, 19, 24, 45, and 46
that require the installation, alteration, relocation, removal, or attachment of Company-owned
distribution facilties. New construction beyond the Point of Delivery for Schedule 9 or Schedule 19 is
subject to the provisions for facilities charges under those schedules. This rule does not apply to
transmission or substation facilties, or to requests for electric service that are of a speculative nature.
1. Definitions
Additional Applicant is a person or entity whose Application requires the Company to provide
new or relocated service from an existing section of distribution facilties with a Vested Interest.
Alteration is any change or proposed change to existing distribution facilties. An alteration may
include Relocation, Upgrade, Conversion, and/or removaL
Applicant is a person or entity whose Application requires the Company to provide new or
relocated service from distribution facilties that are free and clear of any Vested Interest.
Application is a request by an Applicant or Additional Applicant for new electric service from the
Company. The Company, at its discretion, may require the Applicant or Additional Applicant to
sign a written application.
Company Betterment is that portion of the Work Order Cost of a Line Installation and/or
Alteration that provides a benefit to the Company not required by the Applicant or Additional
Applicant. Increases in conductor size and work necessitated by the increase in conductor size
are considered a Company Betterment if the Connected Load added by the Applicant or
Additional Applicant is less than 100 kilowatts. If, however, in the Company's discretion, it is
determined that the additional Connected Load added by the Applicant or Additional Applicant,
even though less than 100 kilowatt, is (1) located in a remote location, or (2) a part of a
development or project which wil add a load greater than 100 kilowatts, the Company wil not
consider the work necessitated by the load increase to be a Company Betterment.
Connected Load is the total nameplate kW rating of the electic loads connected for commercial,
industrial, or'irrigation service. Connected Load for residences is considered to be 25 kW for
residences with electric space heat and 15 kW for all other residences.
Conversion is a request by a customer to replace overhead facilties with underground facilties.
Cost Quote is a written cost estimate provided by the Company that must be signed and paid by
the Applicant or Additional Applicant prior to the start of construction. Cost Quotes are derived
from Work Order Cost estimates.
Easement is the Company's legal right to use the real propert of another for the purpose of
installing or locating electric facilities.
I bAH 0
Issued - November 27, 2009
Effective - December 1, 2009
Issued by IDAHO POWERCOMPANY
John R. Gale, Vice President, Regulatory Afairs
1221 West Idaho Street, Boise, 10
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Idaho Power Company
J.P.U.C. No. 29. Tariff No. 101 Original Sheet No. H-2
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1,2009
Per O.N. 30955
Jean D. Jewell SecretaryRULEH
NEW SERVICE ArTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
AL TERA TIONS
(Continued)
1.Definitions (Continued)
Fire Protection Facilties are water pumps and other fire protection equipment, served
separately from the Applicant's other electric load, which operate only for short periods of time in
emergency situations and/or from time to time for testing purposes.
Line Installation is any installation of new distribution facilties owned by the Company. Line
Installations are exclusive of Service Attachments and eligible for Vested Interest Refunds.
Une Installation Allowance is the porton of the estimated cost of a Une Installation funded by
the Company.
Line Installation Charge is the partially refundable charge assessed an Applicant or Additional
Applicant whenever a Line Installation is built for that individual.
Local Improvement District is an entity created by an authorized governing body under the
statutory procedures set forth in Idaho code, Title 50, Chapter 17 or Idaho Code § 40-1322. For
the purpose of Rule H, the term LID also includes Urban Redevelopment projects set forth in
Idaho Code, Title 50, Chapter 20.
Multiple Occupancy Projects are projects that are intended to be occupied by more than four
owners or tenants. Examples include, but are not limited to condominiums and apartents.
Point of Delivery is the junction point between the facilties owned by the Company and the
facilties owned by the customer; OR the point at which the Company's lines first become
adjacent to the customets property; OR as otherwise specified in the Company's tarif.
Prior Right of Occupancy is a designate area within the public road right-of-way where the
Company and the Public Road Agency have agreed that the costs of the Relocation of facilities
in the designated area wil be borne by the Public Road Agency. For example, a Prior Right of
Occupancy may be created when the Public Road Agency expands the public road right-of-way
to encompass a Company Easement without compensating the Company for acquiring the
Easement but the parties agree in writing that the subsequent Relocation of distribution facilities
within the designated area wil be borne by the Public Road Agency.
Private Beneficiary is any individual, firm or entity that provides funding for road improvements
performed by a Public Road Agency or compensates the Company for the Relocation of
distribution facilties as set fort in Section 10. A Private Beneficiary may include, but is not
limited to, real estate developers, adjacent landowners, or existing customers of the Company.
Public Road Agency is any state or local agency which constructs, operates, maintains or
administers public road rights-of-way in Idaho, including where appropriate the Idaho
Transportation Department, any cit or county street department, or a highway district.
IDAHO
Issued - November 27, 2009
Effctive - December 1, 2009
Issued by IDAHO'POWER COMPANY
John R. Gale, Vice Preident, Regulatory Affairs
1221 West Idaho Street, Boise, ID
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Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1, 2009
Per O.N. 30955
Jean D. Jewell Secretary
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-3
RULEH
NEW SERVICE ATIACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
1.Definitions (Continued)
Relocation is a change in the location of existing distibution facilities.
Residence is a structure built primarily for permanent domestic dwellng. Dwellngs where
tenancy is typically less than 30 day~ in length, such as hotels, motels, camps, lodges, clubs,
and structures buil for storage or parkng do not qualify as a Residence.
Service Attachment is the interconnection between the Company's distrbution system and the
Applicanfs or Additional Applicanfs Point of Delivery.
Standard Terminal Facilties are the overhead Terminal Facilties the Company considers to be
most commonly installed for overhead single phase and three phase services. Single phase
Standard Terminal Facilties include the cost of providing and installng one overhead service
conductor and one 25 kVA transformer to serve a 200 amperage meter base. Three phase
Standard Terminal Facilities include the cost of providing and installing one overhead service
conductor and three 15 kVA transformers to serve a 200 amperage meter base.
Subdivision is the division of a lot, tract, or parcel of land into two or more parts for the purpose
of transferrng owership or for the construction of improvements thereon that is lawflly
recognized, platted and approved by the appropriate governmental authoriies.
Temporary Line Installation is a Line Installation for electric service of 18 calendar months or
less in duration.
Temporary Service Attachment is a Service Attachment to a customer-provided temporary pole
which typically furnishes electic service for constrcton.
Terminal Facilties include transformer, meter, overhead service conductor, or underground
service cable and conduit (where applicable). These facilities are not eligible for Vested Interest
Refunds.
Underground Service Attachment Charge is the non-refundable charge assessed an Applicant
or Additional Applicant whenever new underground service is required by a customer attaching
to the Company's distrbution system.
IDAHO
Issued - November 27, 2009
Effective - December 1, 2009
IssuedbylDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Affairs
1221 West Idaho Street, Boise, 10
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Idaho Power Company
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-4
IDAHO PUBLIC UTILITIES COMMISSION.Approved Effective
Nov. 30, 2009 Dec. 1,2009
Per O.N. 30955
Jean D. Jewell SecretaryRULE H
NEW SERVICE AITACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
AL TERA TIONS
(Continued)
1.Definitions (Continued)
Unusual Conditions are construction conditions not normally encountered, but which the
Company may encounter during constrction which impose additional; project-speific costs.
These conditions may include, but are not limited to: frost, landscape replacement, road
compacton, pavement replacement, chip-sealing, rock digging/trenching, boring, nonstandard
facilties or construction practices, and other than available voltage requirements
Costs associated with unusual conditions are separately stated and are subjec to refund if not
encountered. If unusual conditions are not encountered, the Company wil issue the appropriate
refund within 90 days of completion of the project
Upgrade is a request by a customer to increase capacity and/or size of Company-owned
distribution facilities. Upgrades are eligible for Vested Interest Refunds.
Vested Interest is the right to a refund that an Applicant or Additional Applicant holds in a
specifc section of distribution facilities when Additional Applicants attach to that section of
distribution facilities.
Vested Interest Charge is an amount collected from an Additional Applicant for refund to a
Vested Interest Holder.
Vested Interest Holder is an entity that has paid a refundable Line Installation Charge to the
Company for a Line Installation. A Vested Interest Holder may also be an entity that has paid a
refundable charge to the Company under the provisions of a prior rule or schedule.
Vested Interest Refund is a refund payment to an existing Vested Interest Holder resulting from
a Vested Interest Charge to an Additional Applicant.
Vested Interest Portion is that part of the Company's distrbution system in which a Vested
Interest is held.
Work Order Cost is a cost estimate performed by the Company for a specific request for service
by an Applicant or Additional Applicant. The Work Order Cost wil include general overheads
limited to 1.5 percent. General overheads in excess of 1.5 percent wil be funded by the
Company.
IDAHO
Issued - November 27, 2009
Effective - December 1, 2009
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Affirs
1221 Wes Idaho Street, Boise, 10
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Idaho Power Company
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-5
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1, 2009
Per O.N. 30955
Jean D. Jewell SecretaryRULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
2. General Provisions
a. Cost Information. The Company wil provide preliminary cost information .addressing in
the charges contained in this rule, to potential Applicants and/or Additional Applicants.
This preliminary information wil not be considered a formal Cost Quote and wil not be
binding on the Company or Applicant but rather will assist the Applicant or Additional
Applicant in the decision to request a formal Cost Quote. Upon receiving a requet for a
formal Cost Quote, the Applicant or Additional Applicant wil be required to prepay non-
refundable engineering costs to the Company. A Cost Quote wil be binding in
accordance with its terms.
b.Owership. The Company wil own all distribution line facilities and retain all rights tó
them.
c. Rights-of-Way and Easements. The Company wil construct, own, operate, and
maintain lines only along public streets, roads, and highways that the Company has the
legal riht to occupy, and on public lands and pnvate propert across which rights-of-
way or easements satisfactory to the Company will be obtained at the Applicant's or
Additional Applicant's expense.
d. Removals. The Company reserves the right to remove any distribution facilities that
have not been use for 1-year. Facilites shall be removed only afer providing 60 days
written notice to the last customer of record and the owner of the propert served.
Propert Specifications. Applicants or Additional Applicants must provide the Company
with. final propert specifcations as required and approved by the appropriate
governmental authorities. These specifications may include but are not limited to:
recorded plat maps, utilty easements, final construction grade, property pins and proof
of ownership.
Undeveloped Subdivisions. When electric service is not provided to the individual
spaces or lots within a Subdivision, the Subdivision wil be classified as undeveloped.
Mobile Home Courts. Owners of mobile home courts will install, own, operate, and
maintain all termination poles, pedestals, meter loops, and conductors frm the Point of
Delivery.
h. Conditions for Start of Construction. Construction of Une Installations and Alerations
wil not be scheduled until the Applicant or Additional Applicant pays the appropriate
charges to the Company.
i. Terms of Payment. All payments listed under this section wil be paid to the Company in
cash, a minimum of 30 days and no more than 120 days, prior to the start of Company
construction, unless mutually agreed otherwise.
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, 10
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Idaho Power Company
I.P.U.C. No. 29, Tarif No. 101 Original Sheet No. H-6
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1,2009
Per O.N. 30955
Jean D. Jewell SecretaryRULE H
NEW SERVICE ATIACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
AL TEM TIONS
(Continued)
2. General Provisions (Continued)
j. Interest on Payment. If the Company does not start constructon on a Line Installation or
Alteration within 30 days after receipt of the construction payment, the Company wil
compute interest on the payment amount beginning on the 31st day and ending once
Company construction actually begins. Interest wil be computed at the rate applicable
under the Company's Rule L. If this computation results in a value of $10.00 or more,
the Company wil pay such interest to the Applicant, Additional Applicant, or subdivider.
An Applicant, Additional Applicant, or subdivider may request to delay the start of
construction beyond 30 days after receipt of payment in which case the Company wil
not compue or pay interest.
k.Fire Protection Facilties. The Company will.provide service to Fire Protecton Facilities
when the Applicant pays the full costs of the Line Installation including Terminal
Facilties, less Company Betterment. These costs are not subject to a Line Installation
Allowance, but are eligible for Vested Interest Refunds under Secton 6.a.
i. Customer Provided Trench Digging and Backfll. The Company will, at its discretion,
allow an Applicant, Additional Applicant or subdivider to provide trench digging and
backll. In a joint trench, backfll must be provided by the Company. Costs of customer-
provided trench and backll wil be removed from or not included in the Cost Quote and
will not be subject to refund.
3. line Installation Charges
If a Line Installation is required, the Applicant or Additional Applicant wil pay a partially
refundable Line Installation Charge equal to the Work Order Cost les applicable Line
Installation Allowances identified in Section 7.
IDAHO
Issued - November 27, 2009
Effctve - December 1, 2009
Issued-by IDAHO' POWERCOMPANY
John R. Gale, Vice President, Regulatory Affairs
1221 West Idaho Street, Boise, 10
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Idaho Power Company First Revised Sheet No. H-7
Cancels
Original Sheet No. H-7
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Feb. 22, 2010 March 15, 2010
Jean D. Jewell Secretary
I.P.U.C. No. 29, Tariff No. 101
RULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
4.Service Attachment Charges
a.Overhead Service Attchment Charge. . If an overhead Service Attachment is required,
the Applicant or Additional Applicant wil pay a non-refundable Servce Attchment
Charge equal to the Work Order Cost less applicable Servce Attachment allowances
identified in Section 7.
b.Underground Servce Attachment Charge. Each Applicant or Additional Applicant will
pay a non-refundable Underground' Service Attachment Charge for attaching new
Terminal Facilties to the Company's distribution system. The Company will determine
the location and maximum length of service cable.
i.Single Phase 400 Amps or Less
Underground Servce Cable (Base charge plus Distance charge)
Base charge from:
underground
overhead including 2" riser
overhead including 3" riser
$ 41.00
$408.00
$560.00
Distance charge (per foot)
Company Installed Facilties wit:
1/0 underground cable $7.04
4/0 underground cable $7.62
350 underground cable $9.65
Customer Provided Trench & Conduit with:
1/0 underground cable $2.15
4/0 underground cable $2.73
350 underground cable $4.17
ii.All Three Phase and Single Phase Greater than 400 Amps
If a three phase or ingle phase underground Servce Attachment greater than
400 amps is required, the Applicant or Additional Applicant wil pay a non-
refundable Underground Servce Attchment Charge equal to the Work Order
Cost.
IDAHO
Issued - December 30, 2009
Effective - March 15,2010
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Affairs
1221 West Idaho Street, Boise, 10
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Idaho Power Company First Revised Sheet No. H-8
Cancels
Original Sheet No. H-8
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Feb. 22,2010 March 15,2010
Jean D. Jewell Secretary
I.P.U.C. No. 29. Tariff No. 101
RULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
AL TERA TIONS
(Continued)
5.Vested Interest Charges
Additional Applicants connecting to a vested portion of a Une Installation wil pay a Vested
Interest. Charge to be refunded to the Vested Interest Holder. Additional applicants wil have
two payment options:
Option One - An Additional Applicant may choose to pay an amount determined by this
equation:
Vested Interest Charge = A x B x C where;
A = Load Ratio: Additonal Applicant's load divided by the sum of Additional
Applicant's load and Vested Interest Holder's load.
B = Distance Ratio: Additional Applicant's distance divided by oriinal distance.
C = Vested Interest Holder's unrefunded contributon
Option Two - An Additional Applicant may choose to pay the current Vested Interest, in
which case the Additional Applicant will become the Vested Interest Holder and, as
such, will become eligible to receive Vested Interest Refunds in accordance with Section
8.a.
If Option One is selected, the Additional Applicant has no Vested Interest and the previous
Vested Interest Holder remains the Vested Interest Holder. The Vested Interest Holder's
Vested Interest wil be reduced by the newest Additional Applicant's payment.
The Vested Interest Charge wil not exceed the sum of the Vested Interests in the Line
Installation. If an Additional Applicant connects to a portion of a vested Line Installation which
was established under a prior rule or schedule, the Vested Interest Charges of the previous rule
or schedule apply to the Additional Applicant.
6. Other Charges
a. Alteration Charges. If an Applicant or Additional Applicant requests a Relocation,
Upgrade, Conversion or removal of Company facilties, the Applicant or Additional
Applicant will pay a non-refundable charge equal to the Cost Quote.
b.Engineering Charge. Applicants or Additional Applicants wil be required to prepay all
engineering cots for Line Installations anclor Alterations greater than 16 estimated
hours. Estimates equal to or less than 16 hours wil be biled to the Applicant or
Additional Applicant as part of the construction costs, or after the engineering is
completed in instances where construction is not requested. Engineering charges wil
be calculated at $60.00per hour. .
IDAHO
Issued - December 30,2009
Effective - March 15, 2010
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Affairs
1221 West Idaho Street, Boise, 10
11
Firs Revised Sheet No. H-9
Cancels
Original Sheet No. H-9
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effctive
Feb. 22, 2010 March 15,2010
Jean D. Jewell SecretaryJ
Idaho Power Company
I.P.U.C. No. 29, Tariff No. 101
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RULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
Other Charges (Continued)
c. Engineering Charges for Agencies and Taxing Districts of the State of Idaho. Under the
authori of Idaho Code Secton §67 -2302, an agency or taxing district of the State of
Idaho may invoke its right to decline to pay engineering charges until the engineering
services have been performed and biled to the agency or taxng distrct. Any state
agency or taxing district that claims it falls within the provisions of Idaho Code §67 -2302
must notify Idaho Power of such claim at the time Idaho Power requests prepayment of
the engineering charges. Idaho Power may require that the state agency or taxing
district's claim be in writing. If the state agency or taxing district that has invoked the
provisions of Idaho Code Section §67 -2302 does not pay the engineering charges wiin
the 60 day period as provided in that statute, all the provisions of that statute will apply.
Rights-of-Way and Easement Charge. Applicants or Additional Applicants will be
responsible for any costs associated with the acquisition of rights-of-way or easements.
Temporary Line Installation Charge. Applicants or Additional Applicants will pay the
installation and removal costs of providing Temporary Line Installations.
Temporary Service Attachment Charge. Applicants or Additional Applicants wil pay for
Temporar Service Attachments as follows:
i. Underground - $41.00
The Customer-provided pole must be set within two linear feet of the Company's
existing transformer or junction box.
ii. Overhead - $17ROO
The Customer-provided pole shall be set in a location that does not require more
than 100 feet of #2 aluminum service conductor that can be readily attached to
the permanent location by merely relocating it.
The electrical facilties provided by the Customer on the pole shall be properly
grounded, electically safe, meet all clearance requirements, and ready for
connection to Company facilties.
The Customer shall obtain all permits required by the applicable state, county, or
municipal governments and will provide copies or verificaion to the Company as
required. The above conditions must be satisfied before the service wil be
attached.
IDAHO
Issued - December 3D, 2009
Effective - March 15,2010
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President Regulatory Affairs
1221 West Idaho Street, Boise, 10j
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Idaho Power Company
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-10
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1,2009
Per O.N. 30955
Jean D. Jewell SecretaryRULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
AL TERA TIONS
(Continued)
6. Other Charges (Continued)
g.Temporary Servce Return Trip Charge. If the conditions stated in Section 6.f. of this
rule are not satisfied prior to the Customer's request for temporary service, a Temporary
Service Return Trip Charge of $41.00 will be assessed each time Company personnel
are dispatched to the job site, but are unable to connect the service. The charge wil be
biled afer the conditions have been satisfied and the connection has been made.
h.Unusual Conditions Charge. Applicants, Additional Applicants, and subdividers wil pay
the Company the additional costs associated with any Unusual Conditons included in
the Cost Quote. This payment, or porton thereof, wil be refunded to the extent that the
Unusual Conditions are not encountered.
In the event that the estimate of the Unusual Conditions included in the Cost Quote is
equal to or greater than $10,000, the Applicant, Additional Applicant or subdivider may
either pay for the Unusual Conditions or may furnish an Irrevocable letter of Credit
drawn on a local bank or local branch offce issued in the name of Idaho Power
Company for the amount of the Unusual Conditions. Upon completion of that porton of
the project which included an Unusual Conditions estimatè, Idaho Power Company wil
bil the Applicant, Additional Applicant or subdivider for. the amount of Unusual
Conditions encountered up to the amount established in the Irrevocable Letter of Credit.
The Applicant, Additional Applicant or subdivider wil have 15 days from the issuance of
the Unusual Conditions biling to make payment. If the Applicant, Additional Applicant or
subdivider fails to pay th Unusual Conditions bil within 15 days, Idaho Power wil
request payment from the bank.
i. Joint Trench Charge. Applicant, Additional Applicants, and subdividers wil pay the
Company for trench and backfll costs included in the Cost Quote. In the event the
Company is able to defray any of the trench and backfll costs by sharing a trench with
other utilties, the cost reduction wil be included in the Cost Quote.
j. Underground Service Return Trip Charge. When a residential Customer agrees to
supply the trench, backfll, conduit, and compaction for an underground service, an
Underground Service Return Trip Charge of $68.00 wil be assessed each time the
Company's installation crew is dispatched to the job site at the Customer's request, but
is unable to complete the cable installation and energize the servce.
IDAHO
Issued - November 27, 2009
Effectve - December 1, 2009
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Affairs
1221 West Idaho Street, Boise, 10
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Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Feb. 22, 2010 March 15,2010
Jean D. Jewell Secretary
I.P.U.C. No. 29, Tarif No. 101
First Revised Sheet No. H-11
Cancels
Original Sheet No. H-11
RULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
7.Line Installation and Service Attachment Allowances
The Company wil contribute an allowanæ toward the Terminal Facilities and Line Installation
costs necessary for Line Installations and/or Service Attachments. Allowances are based on
the cost of providing and installng Standard Terminal Facilities for single phase and three
phase services.
a. Allowances for Overhead and Underground Line Installations and Overhead Service
Attachments
Class of Service Maximum Allowance per Service
Residential:
Schedules 1, 4, 5
Non-residence
$1,816.00
Cost of new meter only
Non-residential:
Schedules 7,9,24
Single Phase
Three Phase
$1,816.00
$3,658.00
Large Power Service
Schedule 19 Case-By-Case
b.Allowances for Subdivisions and Multiple Oa:upancy Projects
Developers of Subdivisions and Multiple Occupancy Projects wil receive a $1,816.00
allowance for each single phase transformer installed within a development. and a
$3,658.00 allowanæ for each three phase transformer installed within a development.
Subdividers will be eligible to receive allowances for Line Installations inside residential
and non-residential subdivisions.
IDAHO
Issued - December 30, 2009
Effective - March 15,2010
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Affairs
1221 West Idaho Stree, Boise, Idaho
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Idaho Power Company
I.P.U.C. No. 29. Tariff No. 101
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1, 2009
Per O.N. 30955
Jean D. Jewell Secretary
Original Sheet No. H-12
RULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
8. Refunds
a.Vested Interest Refunds. Vested Interest Refunds wil be paid by the Company and
funded by the Additional Applicant's Vested Interest Charge as calculated in accordance
with Secton 5. The initial Applicant wil be eligible to receive refunds up to 80 percent of
their original construction cost. Additional Applicants that become Vested Interest
Holders wil be eligible to receive refunds up to their total contribution less 20 percent of
the original construction cost.
A Vested Interest Holder and the Company may agree to waive the Vested Interest
payment requirements of Additional Applicants with loads less than an agred upon
leveL. Waived Additional Applicants wil not be considered Additional Applicants for
purpses of Secion.8.a.i. (1) below.
i. Vested Interest Refund Limitations
(1). Vested Interest Refunds wil be funded by no more than 4 Additional
Applicants during the 5-year period following the completion date of the
Line Installation for the initial Applicant.
(2). In no circumstance wil refunds exceed 100 percent of the refundable
portion of any part's cash, payment to the Company.
b. Subdivision Refunds.
i. Applicants wil be eligible for Vested Interest Refunds for facilties installed inside
Subdivisions if the constrcton was NOT part of the initial Line Installation.
Customers requesting additional Line Installations witin a Subdivision will be
considered new Applicants and become eligible for Vested Interest Refunds.
ii.A subdivider wil be eligible for Vested Interest Refunds for payments for Line
Installations outside subdivisions.
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. ID
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Idaho Power Company
I.P.U.C. No. 29, Tanff No. 101 Original Sheet No. H-13
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1, 2009
Per O.N. 30955
Jean D. Jewell SecretaryRULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
9.Local Improvement Districts
Unless specifically provided for under this paragraph, a Local Improvement District will be
provided service under the general terms of this rule.
The Company wil provide a cost estimate and feasibility study for a Local Improvement District
within 120 days after receiving the resolution from the requesting governing body. The Cost
Quote will be based on Work Order Costs and wil not be considered binding on the Company if
construction is not commenced within 6 months of the submission of the estimate for reasons
not within the control of the Company. The governing body issuing the resolution wil pay the
Company for the costs of preparing the cost estimate and feasibilty study regardless of whether
the Line Installation or Alteration actually takes place.
After passage of the Local Improvement District ordinance, the Company wil construct the Line
Installation or Alteration. Upon completion of the project, the Company wil submit a bil to the
Local Improvement District for the actual cost of the work performed, including the costs of
preparing the cost estimate and feasibilty study. If th actual cost is less than the estimated
cost, the Local Improvement District will pay the actual cost. If the actual cost exceeds the
estimated cost, the Local Improvement District wil pay only the estimated cost. Th governing
body wil pay the Company within 30 days after the bil has been submitted.
A Local Improvement District will be eligible for a Line Installation Allowance for any new load
connecting for service upon the completion of the Line Installation. A Local Improvement
District wil retain a Vested Interest in any Line Installation to the Local Improvement District. A
Local Improvement District may waive payments for Vested Interest from Additional Applicants
within the Local Improvement District.
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, 10
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Idaho Power Company
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-14
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1,2009
Per O.N. 30955
Jean D. Jewell SecretaryRULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
AL TERA TIONS
(Continued)
.1 10.. Relocations in Public Road Rights-of-Way../
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The Company often locates its distribution facilties within state and local public road rights-of-
way under authorit of Idaho Code § 62-705 (for locations outside Idaho city limits) and the
Company's city franchise agreements (for locations within Idaho city limits). At the request of a
Public Road Agency, the Company wil relocate its distribution facilites from or within the public
road rights-of-way. The Relocation may be for the benefit of the general public, or in some
cases, be a benefi to one or more Private Beneficiaries. Nothing in this Section bars a Local
Improvement District (LID) from voluntarily paying the Company for Relocations.
The Company's cost of Relocations from or within the public road rights-of-way shall be
allocated as follows:
a. Road Improvements Funded by the Public Road Agency - When the Relocation
of distrbution facilties is requested by the Public Road Agency to make roadway
improvements or other public improvements, the Company wil bear the cost of
the Relocation.
b.Road Improvements Partially Funded. by the Public Road Agency - When the
Public Road Agency requires the Relocation of distribution facilities for the
benefit of itself (or a LID) and a Private Beneficiary, the Company will bear the
Relocation costs equal to the percentage of the Relocation costs allocated to the
Public Road Agency or LID. The Priate Beneficiary will pay the Company for
the Relocation costs equal to the percentage of the road improvement costs
allocated to the Priate Beneficiary.
c.Road Improvements not Funded by the Public Road Agency - When the
Relocation of distribution facilities in the public road rights-of-way is solely for a
Private Beneficiary, the Priate Beneficiary wil pay the Company for the cost of
the Relocation.
d.Prior Right of Occupancy - When the Company and the Public Road Agency
have entered into an agreement regarding a Prior Right of Occupancy, the costs
of Relocation in such designated area will be borne by the Public Road Agency,
or as directed in the agreement.
All payments from Private Beneficiaries to the Company under this Section shall be based on
the Company's Work Order Cost.
This Section shall not apply to Relocations within the public road rights-of-way of Public Road
Agencies which have adopted legally bindìng guidelines for the allocation of utilty relocation costs
between the Company and other partes that are substantially similar to the rules set out in Secion 10
of Rule H.
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, 10
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Idaho Power Company
I.P.U.C. No. 29. Tariff No. 101 Original Sheet No. H-15
IDAHO PUBLIC UTILITIES COMMISSIONApproved Effective
Nov. 30, 2009 Dec. 1, 2009
Per O.N. 30955
Jean D. Jewell SecretaryRULEH
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continue)
11.Eliminating or Minimizing Relocation Costs.in Public Road Rights-of-Way
Pursuant to Idaho Code § 40-210, the Company will 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 facilities. 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.
12.Existing Agreements
This rule shall not cancl 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
Effectve - December 1, 2009
Issued by IDAHO POWER COMPANY
John R. Gale, Vice President, Regulatory Afairs
1221 West Idaho Street, Boise, 10