Monday May 2, 2016
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I've only taken a few geology courses, but the one thing that penetrated the bone was that where water flows above the ground it also flows beneath the ground--in even greater quantity.
So how can Lou Manganiello and the rest of the folks in East Verde Estates be "out of water?"
What kind of well does Brooke Utilities have over there? Is it adequate? Is Brooke doing its best to serve the public? Or is Brooke trying to maximize its profit in ways that might be unacceptable to the Arizona Corporation Commission? A public utility company has a responsibility to supply the community for which is has been granted a Certificate of Convenience and Necessity, not just to feed off that community. How long has it been since Brooke updated its well or wells? Would it pay the residents to form their own water company? Would an assured water supply affect property values, making the homes there worth a great deal more than they are worth now?
We formed a water district in Pine and we are happy about the result. If the residents decide to form their own water company, are they under any obligation to buy Brooke's pipes, storage tanks, and pumps if the ACC decides to cancel that Certificate of Convenience and Necessity because Brooke's facilities are inadequate? If Brooke cannot meet the needs of the community, it may very well be that they are in violation of ACC regulations which would allow the residents to go it on their own.
Perhaps the people of East Verde need to file a formal complaint with the ACC. I'll post the applicable parts of the Arizona state code, showing that the ACC has the authority to make a judgment regarding "adequacy of service," and I'll add a few more words.
40-321. Power of commission to determine adequacy of service rendered by public service corporation; enforcement by order or regulation; duty of compliance by corporation; surety; utility surety fund.
A. When the commission finds that the equipment, appliances, facilities or service of any public service corporation, or the methods of manufacture, distribution, transmission, storage or supply employed by it, are unjust, unreasonable, unsafe, improper, inadequate or insufficient, the commission shall determine what is just, reasonable, safe, proper, adequate or sufficient, and shall enforce its determination by order or regulation.
B. The commission shall prescribe regulations for the performance of any service or the furnishing of any commodity, and upon proper demand and tender of rates, the public service corporation shall furnish the commodity or render the service within the time and upon the conditions prescribed.
Notice that the ACC has regulations "for the performance of any service or the furnishing of any commodity." Perhaps it would be wise to read them. I did that once. It was very enlightening.
Want to call the ACC? Here's their toll free number.
Want to E-mail the utilities Division? Here's their e-mail address.
Talk to them. They are there to protect you. They will give you advice, but they will not act as your lawyer or give you legal advice because they have to remain neutral.
Filing a formal complaint is simple and easy. The hearing is fair and impartial. There are NO legal procedures you won't understand.
As I just mentioned, I filed a formal complaint against Brooke once, all on my own as just one water user In Pine. I drove to the ACC offices in Phoenix, won easily, and got a nice cash judgment. It took one form and one hearing, a total of less than an hour. I had no legal advice and brought no lawyer with me. Brooke brought a lawyer, but he just made a sap out of himself and got yelled out in the parking lot by Bob Hardcastle. That was fun to listen to and watch. During the few minutes the whole process took I was working for the highest rate of pay I ever earned, nearly $1000 an hour.
And my wife gave me a big kiss afterwards. :-)
Check into it, Lou. What have you got to lose?
They should definitely file a complaint with the ACC.
I think it would pay someone over there to do a little reading of the statutes and ACC regulations. It's a small development, but the severe drop in house values caused by the water shortages they constantly experience is a big number. That alone might make it worthwhile.
They ACC will not issue certificate which gives an utility a monopoly in an area if the utility is not able to provide adequate service or supply. It makes sense that the ACC might cancel the certificate if a company failed to maintain that supply, or might take action to require the utility to perform as stated in the original application.
I know that the utility would then try to push the cost of updating its equipment and service onto the rate payers, but whether or not the ACC would allow that is a question. The prime question to be asked about that should be how many homes were erected AFTER the company was well aware that it had a problem. If the company knew that it could not supply adequate water, or should have known it, then the cost of upgrading should reasonably be theirs because they allowed it to happen. The company can absorb all or most of the cost by means a period of reduced profit. You can't have it both ways. You can't expect the ACC to shut down competition while you sit there collecting your charges, adding meter, and failing to fulfill the contract you signed when you installed them.
Consider a time when Verde is in Stage 4 or Stage 5. Any homeowner could reasonably claim that the minimum charge should not apply in those stages since the company is not able to provide the minimally adequate amount of water. Furthermore, anyone who has sold in the area could file a lawsuit based on the reasonable claim that the failure of the water company to meet its contractual requirements was the direct cause of inability to sell at market price and the resultant loss. I'm sure a good lawyer could come up with a dozen more ways in which the failure to meet the supply end of a utility contract creates grounds for legal action.
Look at it this way: A utility is granted a monopoly in an area based on its written and legally binding assurances to the ACC that it will supply the needs of its customers. Then it enters into an equally legally binding contract with those customers. That contract does not only bind the customers to pay for the service provided; it also binds the company to provide that service.
The company can claim, of course, that it cannot provide the stated service, and that the cost of improving its ability to do so should be borne by the customer, but that is not the way the ACC may see it if it can be shown that any of the homes in the area were built AFTER the shortage began. In that case it becomes clear that the company knew in advance of the event that its wells were inadequate, and it should have stopped issuing meters, or if it wanted the additional revenue it should then have found more water.
Just an opinion, of course.
Tom, remember those houses that were built after the shortage was known were issued building permits by Gila County which also must have known about the shortage.
Verde should file a complaint with the ACC, lpossibly look into forming a water district (Arizona Revised Statutes would be helpful) and get some sound advice about purchasing the water company. I would suggest talking to someone over in Star Valley who was involved with their water company purchase. That purchase seemed to have gone well and seemed to not have been driven by emotions. They should also get some good financial advice.
I know this will surprise you, perhaps even amaze you, and may even make you angry, but when Gila County issues a building permit it does not take into account water availability, only whether or not you have an installed meter. I asked that question once, and that was the answer I got--in writing.
I only mentioned that because I thought you would like to know it. It doesn't change the fact that what you are saying makes sense.
Actually, if it were me I would not be looking to buy the water company. I would do what Ray Pugel started out to do. He originally filed with the ACC showing why he should be allowed to dig his own well. The reason he gave--a good one--was that Brooke could not supply the land he intended to develop, which fell in the area covered by Brooke's certificate. I believe the way to fight a water fight is to go to the original statements made to obtain a certificate.
I wonder if we'll ever hear from anyone in Verde?
Gila county also approved all of the subdivisions. Several years ago I read guide lines for subdivisions. Gila county has a designation of "summer subdivision." If you are in a summer subdivision the developer only had to prove 125 gals of water per day per lot. These guidelines might be different today.
Also, I was told by a developer that I should not be concerned about the water requirement because "it is very unlikely that all of the lots in a subdivision will be sold and developed."
Tom, as far as water shortages are concerned there is enough blame to go around to many, many people. Like people who sold property knowing of the water problem and failed to inform the purchaser.
Usually a developer drills the well first and then applies to subdivide. I believe that was done in Strawberry Hollow and Solitude Trails. If my memory serves me right Pugel wanted to remove his property from Hardcastle's CC&R's. Can't remember what I did five minutes ago let alone what happened some 5 years ago. jSo my recall could be a bit off.
I think (that ol' memory problem) I really meant CC&N's. CC&R's are for HOA's. CC&N's Certifcate of Convenience and Needs???????????????/
Memory is the first to go and I can't remember the second one. (:
Thanks, Pat. I needed a good laugh.
Bernice, you are right. Ray Pugel wanted to remove his development from the Brooke certificate based on the demonstrable fact that Brooke could not provide us with an adequate supply. Why he changed and decided to push for a water district (PSWID) and sell the well to us I do not know.
It looks like this string is a wasted effort. If no one from East Verde is going to respond we are just pushing air around.
It is too bad that residents seem to not want to take action to solve their problem. Once again, if I remember correctly some Verde residents showed up at the ACC when the PSWID matter was being discussed. I also believe that some Geronimo Estates people showed up. Maybe they just wanted a free ride to the valley???????????///:-)
I agree if they don't want to do something, well -----outsiders can't do it for them
I don't live there but I'll bet a lot of the homes have thier own wells and being near the river aren't worried about thire wells running dry. So there aren't enough people worried about it..
Only an opinion.
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