Building Contractors Ass'n of Southwestern Idaho, Inc. v. Idaho Public Utilities Commission

916 P.2d 1259, 128 Idaho 534, 1996 Ida. LEXIS 21
CourtIdaho Supreme Court
DecidedMarch 5, 1996
DocketNo. 21714
StatusPublished
Cited by4 cases

This text of 916 P.2d 1259 (Building Contractors Ass'n of Southwestern Idaho, Inc. v. Idaho Public Utilities Commission) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Building Contractors Ass'n of Southwestern Idaho, Inc. v. Idaho Public Utilities Commission, 916 P.2d 1259, 128 Idaho 534, 1996 Ida. LEXIS 21 (Idaho 1996).

Opinion

SCHROEDER, Justice.

This is an appeal by the Building Contractors Association of Southwest Idaho (Building Contractors) from that portion of a general rate order (Order No. 25640), issued on July 14, 1994, by the Idaho Public Utilities Commission (IPUC), which increased the amount of hook-up fees1 Boise Water Corporation (Boise Water) may charge for new connections to its water service system from July 25,1994, forward. To the extent the fee increase disproportionately allocates new plant facility costs solely to Boise Water customers connecting new service from July 25, 1994, forward, the increase unlawfully discriminates against the new customers. The decision of the IPUC is vacated and the case is remanded to the IPUC for further proceedings consistent with this opinion.

I.

BACKGROUND AND FACTS

In 1986 Congress passed the Safe Drinking Water Act, pursuant to which the Environmental Protection Agency (EPA) promulgated new surface water rules. These rules require that Boise Water chemically treat any water it collects from below the Boise River’s stream bed in its four “Ranney collectors” located in the east end of Boise. The east end Ranney collectors provide 25 percent of Boise Water’s supply for its service area north of the Boise River. Because of the geological condition of the aquifer in the east end of Boise Water’s service territory, potable groundwater to replace the Ranney collector water is unavailable. The only other viable source of water would be water imported from other parts of Boise Water’s service area. The cost of importing this water is as substantial as the construction of a new treatment plant and presents other disadvantages. Consequently, Boise Water undertook construction of the Marden Street water treatment plant near Warms Springs Avenue at a cost of $16 million. The treatment plant was completed in 1994 and treats water from three of the Ranney collectors as well as water taken directly from the Boise River.

On December 16, 1993, Boise Water filed an application with the IPUC to increase its rates and charges for water service, including authorization to increase the one-time fee [536]*536it assesses for new connections to its system. This hook-up fee is assessed whenever new service is furnished, whether to a former Boise Water customer who has moved into a newly constructed home or budding, or to a new customer from outside Boise Water’s service territory. Boise Water has charged hook-up fees to offset the cost of serving new customers off-and-on since at least 1978.

On January 14, 1994, the IPUC issued a Notice of Application establishing a deadline for all persons interested in appearing as a party at the hearing. The Coalition of Boise Water Customers (Coalition), the Idaho Citizens Coalition (ICC), and Sharon Ullman intervened and participated in the hearing. The appellant, Budding Contractors, chose not to intervene.

Boise Water established that its cost per customer of constructing a new wed is approximately $250.00, compared with a per customer cost of $1,944.00 for construction of its Marden Street plant. Prior to the decision in this matter Boise Water’s hook-up fees were based solely on the cost of new wed construction. Thus, the fees did not offset the cost of the new water treatment plant.

No party to the hearing objected to an increase of Boise Water’s hook-up fees. The proposed fees ranged from $0 to $2,740.00.2 Boise Water proposed revising its hook-up fees to reflect the current cost of constructing new wells, and it proposed re-including two previously included components to hookup fees: booster pumping and storage. That proposal would have increased the hook-up fee from $190.00 to $465.00 for residential customers with %-ineh or smader service meters. The IPUC staff proposed a hook-up fee that varied depending on a new customer’s location to reflect actual location-specific variations in the cost of service. The Coadtion proposed a $2,100.00 hook-up fee for new service connections without access to a separate irrigation system for non-potable water consumption and a fee of $465.00 for those with access to separate irrigation. The ICC’s witness, Dr. Thomas Power, an economist from the University of Montana, recommended an increase to fudy cover the actual cost of adding a new customer to the system.3

On July 14, 1994, the IPUC issued Order No. 25640 approving a 29.59 percent general rate increase and increasing the hook-up fee to $1,200.00 for %-inch meters or smader. A simflar increase was approved for larger meters. The IPUC reasoned that, because the cost of supply for a new service connection varied greatly depending on whether the water supply came from a wed or a water treatment plant, it was reasonable to use an average of the two costs, plus an amount for storage and pumping boosters. The IPUC also noted that the $1,200.00 fee was roughly the mid-point between the IPUC Staffs recommended range of $0 to $2,740.00, and that its decision would help protect existing ratepayers from the costs associated with growth and “ensure that growth pays for itself.”

The IPUC rejected its staffs proposal to tie individual hook-up fees to the actual costs associated with a specific location, because a practical method of delineating between customers based on their geographic location does not exist. The IPUC agreed with the Coalition that a discount should be offered to those connecting new service who have access to a separate irrigation system, because, as a whole, they wid contribute much less to Boise Water’s peak demand.

On August 4, 1994, the Budding Contractors became involved in the proceeding for the first time by filing a Petition for Reconsideration of Order No. 25640. The Budding [537]*537Contractors argued that the new hook-up fees discriminate between old and new customers in contravention of this Court’s ruling in Idaho State Homebuilders v. Washington Water Power Co., 107 Idaho 415, 690 P.2d 350 (1984), and that the discount for those with access to a separate irrigation system promotes urban sprawl. The Building Contractors requested that the IPUC reopen the record or, in the alternative, that reconsideration be granted through written briefing.

The IPUC granted the Building Contractors’ petition but declined to reopen the record for the introduction of additional evidence, because the Budding Contractors’ challenge was not based on a factual dispute. The IPUC issued Order No. 25761 on October 14, 1994, rejecting the Building Contractors’ arguments and affirming the findings contained in Order No. 25640. In particular, the IPUC concluded that the Budding Contractors’ reliance on Homebuilders was misplaced:

We find that the [Budding Contractors’] interpretation of Homebuilders is incorrect. We do not believe that the Supreme Court prohibited this Commission from recovering from customers, through hook-up fees, the cost of supply, so long as the hook-up fees are based on one or more of the factors enumerated in Homebuilders, such as cost of service or time, nature and pattern of use.

The IPUC also found that, because the cost of connecting to a separate irrigation system more than offset the $735.00 discount such customers received in their hook-up fee, the “discount” did not constitute preferential treatment.

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916 P.2d 1259, 128 Idaho 534, 1996 Ida. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/building-contractors-assn-of-southwestern-idaho-inc-v-idaho-public-idaho-1996.