II. Overview of Issues

A. Parties Positions

The IOUs, ORA, and TURN argue that the Commission has legal authority to impose CRS on MDL customers, and must do so in order to hold MDL responsible for their share of DWR and IOU costs. For purposes of identifying customers that would be subject to the CRS, PG&E defines MDL, based on its Commission-approved tariffs,¹¹ to encompass customers within its service territory that purchase or consume electricity supplied and delivered by a publicly owned utility after January 17, 2001, such as a municipal utility district or an irrigation district. PG&E specifically includes "new municipal load" that is added within its service territory on or after January 17, 2001, but that purchased or consumed electricity supplied and delivered by a new or expanding publicly owned utility.¹² PG&E does not include current or future load served by a publicly owned utility within the publicly owned utility's exclusive service territory in its definition of municipal departing load.

SCE also relies on its tariffs¹³ in defining MDL as that portion of load for which the customer, on or after December 20, 1995, "(1) discontinues or reduces its purchases of electricity supply and delivery services from SCE; (2) purchases or consumes electricity supplied and delivered by sources other than SCE to replace such SCE purchases; and (3) remains physically located at the same location or within SCE's service territory as it existed on December 20, 1995."¹⁴ SCE's definition includes load regardless of whether it is in an annexed area of a municipal utility or moves from one portion of its system to another that has been annexed by a municipal utility.

SDG&E defines departing load as the electric load of any IOU bundled customers that reduce or terminate their service from the IOU, yet continue to use electricity from another source to serve the reduced or terminated electric load. SDG&E cites customer load that is served by a new or expanding municipal entity that otherwise would be served by the IOU as an example of MDL. SDG&E believes that municipalization in the form of community aggregation under DA should pay the same surcharges and be subject to the same DA suspension rules as other DA customers for the same reasons.

PG&E and SCE propose that DWR bond and power charges apply to MDL customer load served by a municipality or irrigation district that was located in the IOU service territory as it existed on January 17, 2001, the date that DWR began procuring power concurrent with enactment of Senate Bill 7, First Extraordinary Session of 2001-2002 (SB7X).¹⁵ PG&E and SCE propose that tail CTC be applied to MDL based upon whether the load received service within the IOU service territory as it existed on December 20, 1995. SCE also proposes that MDL pay a Historic Procurement Charge (HPC), based on an effective date of March 29, 2002, as described in Section IV.D.

SDG&E proposes that the DWR surcharge apply to any customer load served by municipal utilities that begin serving this load in any of the IOU's service territories on or after July 1, 2001.¹⁶ SDG&E believes that the payment of a DWR surcharge, together with the payment of the ongoing Competition Transition Charge (CTC), will achieve bundled customer indifference with respect to MDL.

The IOU state that their proposals are intended to charge MDL customers for the costs they cause DWR and the utilities to incur, to protect bundled customers from cost shifting, and to impose responsibility for CTC in accordance with state law. ORA likewise argues that this proceeding must be resolved so as to ensure that bundled service customers are indifferent and that costs attributable to departing municipal customers are not shifted to bundled ratepayers. To that end, ORA proposes that the Commission impose a surcharge on customers who departed bundled IOU service after January 17, 2001, to be served by a municipality.

Municipal parties generally deny that the Commission has jurisdictional authority to impose CRS on municipal utility customers. To the extent that the Commission nonetheless issues an order imposing costs, municipal parties present various proposals to limit costs that would be imposed. CMUA acknowledges that at least a colorable basis exists to apply certain of the cost responsibility surcharges to Municipal Departing Load. CMUA argues that any surcharges applicable to MDL should only be those that are expressly set forth in legislation, including CTC and the historic DWR costs.

For purposes of identifying customers that would pay the CRS, CMUA defines MDL as follows:

Load that has previously been interconnected with and received electric service from an investor-owned utility but, subsequent to December 20, 1995, becomes served by a publicly owned utility, either through the acquisition of facilities previously owned by an investor-owned utility or through a newly established interconnection with the load.

CMUA opposes any surcharges being applied to "new municipal load," associated with new facilities that have never been connected to an IOU system, as explained further in Section VA below.

Merced and Modesto represent the interests of irrigation districts, which are a special category of publicly owned utilities. The irrigation districts likewise claim that the Commission lacks jurisdiction to impose a CRS on customers served by irrigation districts. Merced argues that to the extent any charges are imposed on irrigation districts, they be limited to (1) DWR Bond Charge (at the level proposed in the Settlement Agreement in the Customer Generation phase of the proceeding); and (2) tail CTC, as defined and limited in Public Utilities Code¹⁷ Section 374(a). Section 374 contains a 75 megawatt (MW) exemption from CTC for Merced.

Merced argues that no ongoing DWR power charges should be assessed on irrigation districts because DWR accounted for the fact that some load would leave the utility system for a number of reasons, including to take service from another provider, such as an irrigation district. Merced also opposes surcharges to recover historical utility undercollections. Merced argues that a number of policy considerations mitigate against imposing surcharges on irrigation district load. Merced notes that the Commission and CEC have encouraged irrigation district participation in the marketplace, and argues that the Commission should not interfere with longstanding irrigation district statutory authorizations to provide a variety of electric services by imposing surcharges.

Merced opposes the use of an effective date of January 17, 2001, for applicability of any DWR charges to municipal load customers. Merced argues that any DWR liability should only apply to customers who left an IOU after March 29, 2002. This date coincides with the issuance of the ALJ ruling prescribing that this proceeding would consider cost responsibility for departing load customers. Merced argues that March 29, 2002, is the earliest date that DL customers were notified of the potential of surcharges relating to DWR costs, and that, prior to the ruling, the Commission had limited the potential reach of any surcharges to DA customers.

Corona goes even farther, arguing that municipal customers have not yet received sufficient notice that they may be responsible for a CRS, and that such notice cannot become effective until or unless express statutory authority to impose a CRS on municipal load is put in place. Corona claims no such express statute now exists.

Modesto opposes imposition of any DWR-related surcharges, either for Bonds or ongoing power costs. Modesto also opposes any utility-related costs beyond those fees specifically authorized by AB 1890.

B. Discussion

As explained below, we conclude that authority exists for this Commission to impose a CRS on MDL customers as outlined herein. Although DL has different characteristics from DA, both forms of load result in departures from IOU bundled service and raise similar concerns regarding the potential shifting of costs to bundled customers. As we did for DA customers in D.02-11-022, we conclude that imposing cost responsibility on MDL customers is warranted in order to hold such customers responsible for their share of the identified costs, and to avoid cost shifting among customers.

Although the criteria and basis for applying a CRS to municipal load is based on the record in this phase of the proceeding, the determination of specific cost elements shall rely upon the modeling methodologies adopted in D.02-11-022 applicable to DA customers, in conjunction with other companion proceedings.¹⁸

In the interests of avoiding cost shifting, we shall hold such MDL customers responsible for their fair share of costs necessary to achieve the goal of bundled ratepayer indifference. Some parties have argued that because MDL represents only a de minimus amount in comparison to total bundled load, no significant cost shifting would result from exempting MDL from CRS. We reject such arguments. Cost shifting is not determined by how large any resulting cost effects are, but involves consistent application of a legislatively mandated intent independent of the specific magnitude of load.

We also reject the claim of parties that MDL customers were not served proper notice of cost responsibility until March 29, 2001, or (in the case of Corona) that proper notice has even now not yet been served. We find that all electric consumers within the IOU service territories were placed on notice of their potential liabilities for DWR's procurement costs when the Legislature enacted SB 7X on January 17, 2001, and were placed on further notice by the enactment of AB 1X on February 1, 2001, authorizing DWR to continue its procurement program through December 31, 2002. With respect to the HPC, we accept the date of March 29, 2001, for purposes of serving notice since it is outside the scope of the above-mentioned legislation.

The adopted MDL CRS shall comprise the following:

(1) DWR Bond Charge. The charge for MDL customers shall be equal to the bundled customer charge pursuant to D.02-11-074, as modified by D.02-12-072 (Bond Charge Phase of A.00-11-038 et al.¹⁹

(2) DWR Power Charge representing the above-market portion of DWR power costs.²⁰ MDL's share of costs (a) between September 21, 2001,²¹ and the effective date of surcharges implemented pursuant to this order, and (b) prospective costs beginning on the effective date of this order continuing until DWR contract costs have been paid in full.

(3) A separate charge to cover the tail CTC as explained in further detail below.

(4) For SCE only, a "Historical Procurement Charge."

The DWR Bond and Power Charge shall apply to MDL customers that took bundled IOU service on February 1, 2001, but shall exclude customers that have been served by municipalities continuously since before February 1, 2001. Municipal customers that departed the IOU prior to February 1, 2001, did not receive the benefits of DWR long-term contract power purchases and thus shall not be assessed DWR charges. New municipal load, as defined in this order, that migrated to a municipality or irrigation district after February 1, 2001, shall bear DWR surcharges. This treatment is consistent with the approach adopted in D.02-11-022 in which we exempted "continuous" DA customers (i.e., those that took DA continuously since February 1, 2001, or earlier) from DWR surcharges.

All municipal load customers subsequent to December 20, 1995, shall continue to pay tail CTC, as prescribed by statute. If a municipality extends existing service territories into currently undeveloped areas of the IOU service territories then, consistent with Public Utilities Code Section369,²² customers taking service in these areas should be responsible for CTC.

MDL customers that departed from SCE's system after March 29, 2002, shall be responsible for paying an HPC. We agree that by virtue of the ALJ ruling issued as of this date, MDL customers had notice served that they were potentially responsible for HPC. MDL customers departing prior to March 29, 2002, shall not pay an HPC.

The cost-per-kWh determination of the DWR surcharge elements applicable to DA customers pursuant to the approach adopted in D.02-11-022 shall serve as the basis for determining the MDL CRS. Further proceedings will be required to develop more specifically a process for identifying, billing, and collecting the CRS from the applicable MDL customers, as explained in Section V.C. below.