3. Substantial Contribution
In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. First, we look at whether the Commission adopted one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer. (§ 1802(i).) Second, if the customer's contentions or recommendations paralleled those of another party, we look at whether the customer's participation unnecessarily duplicated or materially supplemented, complemented, or contributed to the presentation of the other party. (§§ 1801.3(f) and 1802.5.)
As described in § 1802(i), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.
In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.7
Should the Commission not adopt any of the customer's recommendation, compensation may still be awarded if, in the judgment of the Commission, the customer's participation substantially contributed to the decision or order. For example, if a customer provided a unique perspective that enriched the Commission's deliberations and the record, the Commission could find that the customer made a substantial contribution. With this guidance in mind, we turn to IAG's claimed contributions to this proceeding.
IAG identified four separate areas in which it claimed it made a substantial contribution in this proceeding. Below, we perform our own independent assessment of these claims.
3.1. Reduction in Forecasted Capital Expenditures: Lundy Reline Conveyance System Project
IAG states that its participation resulted in a reduction in SCE's 2007-2011 forecasted capital expenditures in the amount of $2.4 million. This was the amount SCE forecasted was necessary for certain modifications to the Lundy Powerhouse hydroelectric project. The powerhouse discharges water to
Mill Creek. Part of the Lundy Project would have provided for redirection of water to Mill Creek. IAG claims that based on the record developed through its efforts, the Commission concluded that SCE must undergo a review by five and possibly as many as seven separate regulatory agencies before SCE could build this project.
IAG's characterization of the decision is not completely accurate. The decision excluded this amount from SCE's forecasted capital expenditure for several reasons. SCE did not appear prepared to start this project during this rate case cycle; it had made no formal project design request from its in-house engineering and technical services group; SCE had not submitted the project plans to the required 5-7 other agencies for review; SCE did not provide a specific time frame when it intended to actually undertake the project. This project was opposed by both IAG and The Utility Reform Network (TURN). We find that IAG's arguments in this area did not influence the decision to exclude these funds from SCE's forecasted capital expenditures for 2009.
3.2. Prevent Implementation of Project until Environmental Review is Completed
SCE proposed to enlarge and upgrade a water conveyance facility for the purpose of moving tailrace water from Wilson Creek to Mill Creek (also referred to herein as the Lundy Project). SCE claimed in prepared testimony that the project was necessary to "comply with a Federal Energy Regulatory Commission (FERC) relicensing requirement."8 IAG claims that its participation demonstrated that SCE failed to identify, or budget for, environmental review of the project. FERC and SCE, however, later clarified this statement in reply testimony. We find that IAG's participation did not make a substantial contribution in this area. SCE's reply testimony clarified the issue and IAG's participation added nothing further.
3.3. Savings of Potential Future Amounts for Long-Term Monitoring, Mitigation, and Liability Resulting from the Implementation of Lundy Reline Project without Adequate Planning
SCE's testimony presented the Lundy Project as a $2.4 million construction project with no analysis of potential environmental consequences and liability.9 IAG claims that its participation demonstrated that SCE had failed to consider a variety of potential consequences of the project that, if implemented without proper planning and review, could have resulted in escalated costs to ratepayers in order to monitor and mitigate these environmental consequences.
IAG submits that they introduced testimony that these costs could be extremely high and ongoing on a long-term basis. Potential ongoing future monitoring and mitigation resulting from this project could include mandatory monitoring of fishery resources, riparian habitat, and wetlands of Wilson Creek; mitigation and restoration of damaged habitat on Wilson Creek; development and implementation of a groundwater monitoring plan; and remedial actions to address harm caused to domestic and fire protection wells.
However, to the extent that IAG provided testimony at hearings regarding whether FERC had already approved the Lundy Project, these efforts were not helpful. Overall, much of the testimony submitted by IAG at hearing was not relevant to the scope of the proceeding, including testimony and exhibits about changing the allocation of flows between creeks and requesting resolution of complex water right issues.
We affirm that IAG's efforts in this area resulted in substantial contribution, but reduce IAG's request to reflect to reflect the work IAG performed that fell outside the scope of the proceeding.
3.4. Protection of Natural Environment for Enjoyment of Local Ratepayers and General Public
IAG alleges that through its participation, the Commission disallowed the funds for the various aspects of the Lundy Project that had the potential to cause significant environmental degradation adjacent to a national forest area. The proposed Lundy Project is adjacent to the Mono Basin National Forest Scenic Area. IAG's primary goal was to prevent the proposed Lundy Project to move water from Wilson Creek to Mill Creek without adequate consideration of the environmental consequences.
IAG says that this project has been the subject of intense community concern. The redirection of tailrace flows from Wilson Creek to Mill Creek would reduce flows into Wilson Creek. IAG's concerns included the negative impacts on wildlife habitats and the preservation of biodiversity; the impact on wild fishery; the impact on waterfowl; the impact on meadow habitats; and the potential degradation of recreational uses and scenery.
IAG claims that, through its efforts, the Commission disallowed SCE's request for funding for this project and advised SCE that it must first complete regulatory reviews of this project before it can be built. However, the Commission's decision was based on the finding that funding was premature and, until SCE took further steps to obtain federal and state regulatory approval, funding was not reasonable in this rate case. Our decision did not rely on IAG's environmental concerns as such matters fall outside the scope of the proceeding. We find that regarding this issue, IAG made, in part, a substantial contribution.
7 D.98-04-059, 79 CPUC2d 628 at 653.
8 Exhibit SCE-2M at 82.
9 Exhibit SCE-2M at 82.
