Stakeholders seek drafting fixes: CPCN timing for ESPW, statutory cross-reference and wording on $500,000 threshold
Summary
At the PUC hearing, parties asked the commission to clarify whether CPCN filing or ERP processes should determine ESPW project status, recommended cross-referencing the statutory ESPW definition to avoid paraphrase errors, and flagged ambiguous language about a $500,000 'presumption of prudence.'
Several procedural drafting questions surfaced during the March 4 public comment hearing that the commission said it will address in its interim decision and during the redline process.
Judge Farley asked whether using a CPCN application filing as the mechanical trigger for determining when a project becomes an Energy Sector Public Works (ESPW) project was appropriate. Ryan Saray, counsel for Public Service, answered that for gas projects or projects that do not go through an ERP the CPCN filing could be a sensible point to 'lock in' project value, but he acknowledged ERP projects would require different treatment.
Dietrich Heffner, representing Tri-State, suggested the proposed rules should cross-reference the statutory ESPW definition (24-92-303) rather than attempt to paraphrase it in the rule text, arguing that paraphrase risks introducing ambiguity or errors. "Can we just reference the definition that we've been given rather than try and paraphrase it within the rules?" Heffner asked.
A Black Hills representative flagged an ambiguity in draft language referencing a $500,000 ratepayer funding threshold tied to a presumption of prudence, and requested wordsmithing so the text does not read as if the presumption applies only to projects above that dollar amount.
Judge Farley asked parties to include suggested language in their redlines so the commission can consider cross-referencing and clearer drafting as part of the April submissions.
