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GW2/lil 2/28/2017

GW2/lil 2/28/2017 FILED 2-28-17 02:50 PM BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

FILED

2-28-17

02:50 PM

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Application of California-American Water Company (U210W) for Approval of the Monterey Peninsula Water Supply Project and Authorization to Recover All Present and Future Costs in Rates.

Application 12-04-019 (Filed April 23, 2012)

ADMINISTRATIVE LAW JUDGE’S RULING DENYING JOINT MOTION TO STRIKE PUBLIC WATER NOW’S NOTICE REGARDING SECTION 3.1 OF THE LARGE SETTLEMENT AGREEMENT AND EX PARTE SANCTIONS

Summary

The September 23, 2016, Joint Motion to Strike Public Water Now’s Notice

Regarding Section 3.1 of the Large Settlement Agreement (LSA) is denied. All

parties and interested persons are cautioned to follow ex parte statutes and rules,

particularly as recently amended by Senate Bill 215 (Statues 2016, Chapter 807).

This includes the prohibition on ex parte communication adopted in this matter.

Background

The following 6 pleadings have been filed and are addressed in this

Ruling:

178202638

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Line

Date

Title

No

1

September 12, 2016

Public Water Now (formerly Citizens for Public Water) Notice Regarding Section 3.1 of the Large Settlement Agreement

2

September 23, 2016

Joint Motion to Strike Public Water Now’s Notice Regarding Section 3.1 of the Large Settlement Agreement

3

September 29, 2016

Public Trust Alliance Opposition to Motion to Strike Public Water Now’s Notice Regarding Section 3.1 of the Large Settlement Agreement

4

September 30, 2016

Public Water Now Response and Opposition to Joint Motion to Strike Public Water Now’s Notice Regarding Section 3.1 of the Large Settlement Agreement

5

September 30, 2016

Marina Coast Water District’s Response in Opposition to the September 23, 2016 Joint Motion to Strike Public Water Now’s Notice Regarding Section 3.1 of the Large Settlement Agreement

6

October 28, 2016

Notice of Intent of Public Water Now (formerly Citizens for Public Water) to Withdraw from the LSA that Supports Cal Am’s Monterey Peninsula Water Supply Project

Discussion On September 23, 2016, Joint Parties 1 moved to strike Attachment A to the September 12, 2016 Notice of Public Water Now (PWN). 2 Joint Parties also ask

1 There are nine parties to this joint motion: California-American Water Company, Coalition of Peninsula Businesses, the City of Pacific Grove, County of Monterey, Monterey County Water Resources Agency, Monterey County Farm Bureau, Monterey Peninsula Water Management District, Monterey Regional Water Pollution Control Agency, and Salinas Valley Water Coalition.

2 The motion is titled a motion to strike PWN’s Notice. The introductory paragraph states the Joint Parties move to strike the Notice. Both the discussion and the conclusion in the motion, however, focus on Attachment A. In particular, the conclusion is that Joint Parties “request that the Commission strike Attachment A to PWN’s Notice in its entirety…” (Joint Motion at 4.)

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that PWN be admonished not to violate ex parte rules again or be subject to monetary sanctions. PWN and others filed responses in opposition to the motion. The motion and other matters are addressed below.

1. Attachment A

Joint Parties move to strike Attachment A, asserting it is an improper ex parte communication. (Joint Motion at 3.) To the contrary, Attachment A is part of the September 12, 2016 PWN Notice. The Notice was filed and served in this proceeding. Filed and served pleadings, including attachments, are not ex parte communications. The motion is denied.

Joint Parties also assert that Attachment A is an improper and untimely attempt to comment on the LSA. (Joint Motion at 4.) Joint Parties say comments on the LSA were due by August 30, 2013, and reply comments by September 16,

2013. Joint Parties conclude that Attachment A is untimely and must be struck.

Joint Parties are incorrect. Attachment A is not a comment on the LSA. Rather,

Attachment A identifies actions taken by PWN and explains those actions.

2. E-mails

Attachment A to the motion contains two e-mails sent to the service list. The service list included Commission decisionmakers. The e-mails are dated July 26, 2015 and August 9, 2016. Without specific reference to the July 26, 2015 e-mail, a Ruling was issued on September 16, 2015. The Ruling addresses several communications including but not limited to the July 26, 2015 e-mail. The Ruling reminds parties and interested persons that ex parte communications are prohibited in this proceeding. The Ruling explains that ex parte rules are not intended “to stifle conversation, but to channel the conversation – through public workshops, public hearings, filed pleadings, or filed legal briefs, for example - so that

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everyone knows who said what and to whom, and has a chance to reply.” The Ruling states that e-mail on any substantive issue in this proceeding with service of that e-mail on any Commission decisionmaker is prohibited. To the extent the service list included decisionmakers PWN acknowledges that it violated the ex parte ban. (September 30, 2016 PWN Response at 6.) PWN says: “[i]f that happened it was inadvertent and unintended.” (Id.) Even if the e-mails sent in July 2015 and August 2016 violate the ban, they were served not just on decisionmakers but on the entire service list. 3 They are communications made in a way that everyone knows who said what and to whom, and everyone had a chance to reply. This does not excuse PWN for violations of the ex parte ban but, even if they violate the ban, the harm was mitigated since there was no attempt to conceal the communication from anyone. The September 23, 2016 Joint Parties’ motion does not propose a specific monetary or other sanction against PWN for the July 2015 and August 2016 e-mails, and none are adopted in this Ruling.

3. Admonishment and Sanctions

Joint Parties ask that PWN be admonished not to violate the ex parte rules or be subject to monetary sanctions. Joint Parties are correct, but this is true for

all parties and interested persons, not just PWN.

3 Ex parte communications are prohibited in this proceeding. Absent the prohibition, however, the Public Utilities Code provides in ratesetting cases (such as this one) that: “[w]ritten ex parte communications may be permitted by any party provided that copies of the communication are transmitted to all parties on the same day.” (Section 1701.3(c).) The PWN e-mails conform with Section 1701.3(c).

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In particular, all parties and interested persons are admonished not to violate the ex parte rules, including the ex parte ban specific to this proceeding. 4 This includes provisions regarding ex parte communication recently added to the Public Utilities Code by Senate Bill 215 ( Statues 2016, Chapter 807), effective January 1, 2017. These changes are in, but not necessarily limited to, Public Utilities Code Sections 1701.1, 1701.2, 1701.3, 1701.4, and 1701.6. These provisions include new limitations, reporting requirements, and the potential for substantial sanctions or adverse consequences in Commission proceedings. Parties and interested persons are advised that, to the extent the requirements of Rule 8.1 et seq. of the Commission’s Rules of Practice and Procedure deviate from these new sections of the Public Utilities Code, the statutory provisions govern. Parties and interested persons may seek assistance from the Commission’s Public Advisor on ways to effectively participate in this or any proceeding (e.g., how to become a party, participate in public hearings, submit comments). The Public Advisor can also provide advice on participation in compliance with ex parte obligations, including the specific ex parte prohibition this proceeding.

4. PWN Notice of Withdrawal from LSA

On October 28, 2016, PNW filed its Notice of Intent to not only withdraw from Section 3.1 of the LSA but the entirety of the LSA. No pleading was filed by any party with respect to PWN’s Notice.

4 See January 23, 2015 Ruling with respect to ex parte ban. See September 16, 2015 Ruling with respect to interested persons, including non-parties.

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A.12-04-019 GW2/lil

IT IS RULED that:

1. The September 23, 2016, Joint Motion to Strike Public Water Now’s Notice

Regarding Section 3.1 of the Large Settlement Agreement is denied.

2. All parties and interested persons are admonished not to violate the

ex parte rules, including the ex parte ban specific to this proceeding. Parties are

advised that this includes new provisions recently added to the Public Utilities

Code.

Dated February 28, 2017, at San Francisco, California.

/s/ JEANNE MCKINNEY for

Gary Weatherford Administrative Law Judge

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