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HomeMy Public PortalAboutExhibit RC 101- Rate Commission Pre-Hearing ConferenceBEFORE THE RATE COMMISSION OF THE METROPOLITAN ST. LOUIS SEWER DISTRICT For Consideration of a ) Stormwater &Wastewater Rate Change ) Proposal by the Rate Commission of the ) Metropolitan St. Louis Sewer District ) PREHEARING CONFERENCE REPORT OF BLACK & VEATCH, RATE CONSULTANT, AND LASHLY & BAER, P.C., LEGAL COUNSEL TO THE RATE COMMISSION Black & Veatch and Lashly & Baer, P.C., as Rate Consultant and Legal Counsel, respectively, to the Rate Commission of the Metropolitan St. Louis Sewer District (“Rate Commission”), respectfully submit this Prehearing Conference Report regarding the Stormwater and Wastewater Rate Change Proposal (“Rate Change Proposal”) submitted to the Rate Commission by the Metropolitan St. Louis Sewer District (the “District”) on March 24, 2023, Ex. MSD 1. The Rate Commission is to determine whether the Rate Change Proposal or any Alternative Proposal meets the criteria for recommendation contained in §§ 7.040 and 7.270 of the Charter Plan. The Prehearing Conference Report is to identify, define, resolve or settle the issues raised by the prepared testimony and to describe the participant’s position, if any, on each of the criteria and factors for recommendation. THE DISTRICT RATE CHANGE PROPOSAL Wastewater The District’s Rate Change Proposal was presented to the Rate Commission on March 24, 2023. It sets forth the District’s proposal to use a combination of means, including issuing Exhibit RC 101 2 additional revenue bonds and increasing wastewater user charges, to fund its Capital Improvement and Replacement Program (“CIRP”) for Fiscal Year (“FY”) 2025 through FY 2028; to provide the funds needed to comply with regulatory requirements relating to deficiencies in the District’s wastewater system, including sewers, pump stations, and treatment plants; and to satisfy the requirements of the Consent Decree in the matter captioned United States of America, the State of Missouri and the Missouri Coalition for the Environment Foundation vs. the Metropolitan St. Louis Sewer District. On July 15, 2011, the District entered into a Consent Decree program with the United States Environmental Protection Agency (the “EPA”), the State of Missouri and the Missouri Coalition for the Environment Foundation obligating the District to invest $4.7 billion (in 2010 dollars) over a 23-year period in activities described in the Consent Decree (“Consent Decree”). See Ex. MSD 37. The proposed wastewater rate increases to fund the CIRP are set forth in Table 4-18 of the Rate Change Proposal. See Ex. MSD 1, p. 4-36. The estimated CIRP for the rate cycle FY 2025 through FY 2028 is approximately $1.65 billion. See Ex. MSD 1, p. 4-15. The District proposes to finance the required capital improvements by a combination of wastewater user charg e revenues, available fund balances, senior revenue bonds, Water Infrastructure Finance and Innovation Act (“WIFIA”) loans, Missouri State Revolving Fund (“SRF”) loans, grants and contributions, and interest income. See Ex. MSD 1, p. 4-17. To adequately fund the CIRP, the District proposes wastewater rate increases averaging 7.25% per year over the rate cycle. See Ex. MSD 1, p. ES-2. In order to meet its projected debt obligations under this proposal, the District will be required to obtain an additional bond authorization in the amount of $750 million before the start of FY 2025. See Ex. MSD 1, p. 4-25. The impact of the Rate Change Proposal upon 3 wastewater rates, if principally funded by bond financing, is described in Ex. MSD 1, p. 4-36, Table 4-18. In the event that voters of the District do not approve additional bond financing for the CIRP, the District proposes cash financing in order to comply with the terms of the Consent Decree. The impact of the Rate Change Proposal upon wastewater rates, if principally funded by cash financing, is described in Ex. MSD 1, p. 7-4 and Table 7-3. Stormwater For stormwater, the Rate Change Proposal proposes to add: (1) for residential property within the District, an ad valorem property tax of $0.0745 per $100 of assessed valuation; and (2) for non-residential property, an impervious surface charge of $1.05 pe r 1,000 square feet of imperious area. See Ex. MSD 1, p. 5-6. The Stormwater Rate Change Proposal would fund only capital improvement projects, rather than operations and maintenance, which are financed through an existing 10-cent property tax, and regulatory expenses, which are funded through an existing 2- cent property tax. The stormwater ad valorem property tax and impervious surface charge would collectively generate approximately $34 million annually to finance these capital improvements, with the residential tax generating approximately $19.3 million per year, and the non-residential impervious surface charge generating approximately $14.8 million per year. See Ex. MSD 1, p. 5- 6. The District intends to seek voter approval for both the ad valorem property tax and the impervious surface charge. See Ex. MSD 1, p. 5-8. STANDARD FOR RECOMMENDATION Upon receipt of a Rate Change Notice from the District, the Rate Commission is to recommend to the District’s Board changes in a wastewater, stormwater, or tax rate necessary to pay: (i) interest and principal falling due on bonds issued to finance assets of the District; (ii) the 4 costs of operation and maintenance; and (iii) such amounts as may be required to cover emergencies and anticipated delinquencies. See Charter Plan, § 7.040. Any change in a rate recommended to the Board by the Rate Commission pursuant to § 7.270 of the Charter Plan is to be accompanied by a statement of the Rate Commission that the proposed rate change: (i) is consistent with constitutional, statutory, or common law as amended from time to time; (ii) enhances the District’s ability to provide adequate sewer and drainage systems and facilities, or related services; (iii) is consistent with and not in violation of any covenant or provision relating to any outstanding bonds or indebtedness of the District; (iv) does not impair the ability of the District to comply with applicable Federal or State laws or regulations as amended from time to time; and (v) considers the financial impact on all classes of ratepayers in determining a fair and reasonable burden. See Charter Plan, § 7.270. The Prehearing Conference Report is to identify, define, resolve or settle the issues raised by the prepared testimony and to describe the participant’s position, if any, on each of the criteria and factors for recommendation. See Ex. RC 67, p. 8. The issues raised by the prepared testimony1 relate primarily to the criteria set forth in § 7.270(v) of the Charter Plan – whether the Rate Change Proposal considers the financial impact on all classes of ratepayers in determining a fair and reasonable burden. The Rate Commission, in its Rate Recommendation Report, will be required to provide affirmative support that its rate recommendation meets each of the criteria. Although the issues 1 At the Prehearing conference on August 1, 2023, we identified as a potential issue the Fluidized Bed Incinerators, the timing/costs of construction of the incinerators, and the methodology of treating bio -solids, to be considered herein and in the Rate Commission’s final report. The District has since info rmed us that the Board of Trustees has already approved an ordinance to authorize a contract for the work on the Fluidized Bed Incinerators. Thus, whether these projects are appropriate is less salient of an issue than it would be if those projects were directly tied to the Rate Change Proposal. We do not intend to address these projects in the Rate Recommendation Report unless the Rate Commission requests that we do so. 5 herein are discussed primarily in the context of compliance with § 7.270(v), the issues may also affect the discussion of compliance with the other factors and criteria in §§ 7.040 and 7.270. EXTRA STRENGTH SURCHARGES The Rate Change Proposal includes a significant increase in wastewater extra strength surcharges. See Ex. MSD 1, p. 4-36; pgs. 4-38–4-39. Extra strength surcharges are applied to wastewater loadings that exceed normal strength limits of 300 mg/l for suspended solids and 300 mg/l for Biological Oxygen Demand (“BOD”) or 600 mg/l for Chemical Oxygen Demand (“COD”). See Ex. MSD 1, pgs. 4-38–4-39. The Rate Change Proposal notes that the significant increase is driven primarily by the capital cost associated with the District’s fluidized bed incinerators, and the fact that “units of service for extra strength BOD and COD decreased by 15% and TSS [Total Suspended Solids] decreased by 13% from FY 2018 through FY 2022. These factors result in an increase in rates that is larger than other rate components.” See Ex. MSD 1, pgs. 4-39. The District intends to adjust the extra strength surcharge rates to cost of service, rather than phasing-in the increase over a period of time. It is the District’s position that it is appropriate to set rates based on cost of service, rather than phase-in the increases. Mr. Thomas Beckley testified that if “the proposed rate increases … are phased-in rather than congruent with the timing of the proposed rate changes, other customers not subject to those extra strength surcharges, including residential customers will bear a greater portion of those costs which will create a subsidy by those customers to the extra strength customers.” See Ex. MSD 84B, p. 1; ll. 6-10. It is the Rate Consultant’s position that the District should strongly consider phasing in the surcharge rates over at least a two-year period. See Ex. RC 78, pg. 27, ll. 23; p. 28; ll. 1-2. Ms. 6 Pamela Lemoine notes that the TSS increase is 105% of the existing rate. See Ex. RC 78, pg. 27, ll. 22. She states that phasing-in such increases “would mitigate potential ‘rate shock’ that could accelerate industrial customers to additional pre-treatment or other operational changes that would reduce the District’s revenues further. Such a phase-in would require the District to adjust other rate components, including the Base Charges, Volume Charges, and Compliance Charges, to provide full revenue recovery.” See Ex. RC 78, pg. 28, ll. 1-5. Mr. Beckley responded at the surrebuttal technical conference that a phase-in approach would result in other customers subsidizing extra strength surcharge customers by approximately $1.2 million, with $750,000 of such cost being borne by residential customers. See Ex. MSD 84B, p. 1, ll. 10-12. In the surrebuttal technical conference, Mr. Beckley noted that this translates to approximately an additional $0.11 per month for typical residential ratepayers. See Ex. MSD 92, p. 62, ll. 20-25; p. 63, ll. 1-5. Mr. Beckley noted that the District made a decision to limit the impact on residential bills, rather than requiring residential ratepayers to bear the burden of the increase. See Ex. MSD 92, p. 65, ll. 3-4, 14-19. STORMWATER GRANT PROGRAM The Stormwater Rate Change Proposal, consisting of an ad valorem tax on residential properties, and an impervious surface charge for non-residential properties, is anticipated to generate approximately $34 million per year. See Ex. MSD 1, p. 5-6. The District intends to spend 50% of the revenue on stormwater capital projects Districtwide on a prioritized basis, a goal of providing 30% of the revenues to the municipalities as grants, a goal of spending 10% of the revenues on capital projects in designated Environmental Justice areas, and 10% of the revenues on projects identified by the District and an area-wide advisory committee, such as a special committee of the Municipal League of Metro St. Louis. See Ex. MSD 1, pgs. 5-9–5-10. 7 The 30% to be used as municipal grants was a topic of discussion during technical conferences of the Rate Commission. The District proposes to group municipalities based on population into 7 groups. See Ex. MSD 1, p. 8-83. The smallest municipalities would be eligible for grants of $30,000 annually, while the most populated municipalities would be eligible for $300,000 annual grants. See Ex. MSD 1, p. 8-83. Typical eligible projects and proposed groupings of municipalities are set forth in Section 8-18 of Ex. MSD 1. The Rate Consultant testified that the District’s goal to allocate 30% of the revenues for municipal grants was appropriate. See Ex. RC 77, p. 15, ll. 10-17. However, Ms. Anna White stated that using population to determine a municipality’s eligibility for grants has the result of favoring bedroom communities, at the expense of municipalities with lots of impervious area and commercial uses. See Ex. RC 77, p. 15, ll. 10-17. She states that the “District should consider a methodology based on a blend of both population and impervious area for allocating grant funding to municipalities.” See Ex. RC 77, p. 15, ll. 10-17. The District responded that it made the decision to allocate grants based on population because it is “a more simplistic and commonly used approach to the grant allocation. We found that population and income level are common models for government grant allocation…. Distribution by population plus impervious area … was never considered. This type of allocation would require considerable and sometimes complex calculation for 89 municipalities, St. Louis County and the City of St. Louis.” See Ex MSD 84A, p. 1, ll. 19-25; p. 2, ll. 1-3. The District further expressed at the prehearing conference that using impervious area to determine grant eligibility could create an incentive to retain and add impervious area. As part of the Stormwater Rate Change Proposal, the existing OMCI subdistricts with a current tax assessment would have their tax rates set to zero, with the remaining fund balances to 8 be used to plan, design, and construct needed capital improvements within such district, until the funds are depleted. See Ex. MSD 3C, p. 7, ll. 16-19. During the technical conference for direct testimony, it was noted that some municipalities may receive less revenue through the proposed grant program than they currently receive through their OMCI districts. See Ex. MSD 74, p. 132, ll. 17-25; p. 133, ll. 1-2. The District expressed openness to permitting some of these OMCI subdistricts that may wish to continue to levy a tax to do so. See Ex. MSD 74, p. 124, ll. 19-20. The District stated at the prehearing conference that it is open to making modifications to the proposed grant program so long as the changes are consistent with the District’s goals as identified in the Rate Change Proposal. The District does not wish to use a competitive selection process and prefers to give municipalities some discretion to set priorities for themselves. STORMWATER CREDIT PROGRAM The Rate Change Proposal presented to the Rate Commission did not include a credit program. The Rate Consultant recommended that the District consider implementing such a program to mitigate the business impact on large non-residential customers. Ms. Anna White testified that a “credit program can be a component of the non-residential stormwater charge…. The program would offer non-residential customers an opportunity to reduce their stormwater fee by implementing an onside best management practice structure to control volume and peak flow reduction of stormwater and water quality.” See Ex. RC 77, p. 20, ll. 10-16. The District testified that it “chose not to propose credit for stormwater BMP’s with its program for several reasons. With the proposed rate structure being a combined property tax (residential) and impervious area-based charge (non-residential), and the inability to provide for partial or full ‘tax credit’, the District would be unable to equitably allow for stormwater credits for both classes of customers.” See Ex. MSD 84A, p. 5, ll. 9-13. Additionally, such a program 9 would lead to lost revenue. See Ex. MSD 84A, p. 5, ll. 13-14. However, Richard Unverferth testified that the District “would support implementation of a 50% credit program of captured impervious area for detention basins managing stormwater quantity when sized for the MSD regulatory volume criteria…. This program would apply to non-residential customers only.” See Ex. MSD 84A, p. 6, ll. 11-17. STORMWATER CAPITAL RATE – VACANT NON-RESIDENTIAL PROPERTY Under the Rate Change Proposal, the District would not assess the stormwater capital rate to vacant non-residential property with no impervious surface. Vacant residential property would be subject to the ad valorem stormwater tax. It is the Rate Consultant’s position that the District should consider assessing the stormwater capital rate to vacant non-residential property. Ms. Anna White testified that “The District has only included parcels with visual improvements. It excluded parcels with no impervious area features that may have surfaces such as compacted dirt that restrict infiltration and therefore, still contribute stormwater runoff. Excluding these types of improved vacant land parcels completely from stormwater billing could potentially impact the equity of cost recovery, as these types of improved vacant land also contribute some level of stormwater runoff, especially during high intensity wet weather events. Rather than completely exclude such parcels from impervious area determination, the District could have considered estimating an effective impervious area by applying a reasonably low runoff factor to the parcel lot size.” See Ex. RC 77, p. 19, ll. 10-18. The District did not consider assessing vacant non-residential properties, primarily due to the administrative burdens associated with developing and assessing an “effective” impervious area rate for such properties. “For many reasons – including cost to administer and implement, simplicity and objectivity, ability for our customers to better understand, and because additional 10 runoff beyond that occurring naturally is a direct function of impervious area – the District decided then to base the stormwater user charge solely on the amount of impervious area on a property.” See Ex. MSD 84A, p. 2, ll. 19-23. Mr. Unverferth noted that there are approximately 32,000 non- residential parcels, of which 4,400 are vacant. See Ex. MSD 84A, p. 4, ll. 8-10. “Performing effective impervious area calculations, along with the potential for customer appeals and on-site validations on 4,400 or possibly 32,000 parcels would be unduly burdensome and add disproportionate cost to the administration of the program. It is estimated to require a minimum of 2-3 FTEs to coordinate, validate, and effectively manage this implementation.” See Ex. MSD 84A, p. 4, ll. 12-16. Additionally, he noted that the District has “found that even explaining impervious area measurements to be challenging, and this is far more technical to address with customers.” See Ex. MSD 84A, p. 5, ll. 1-2. LEGAL AUTHORITY FOR AND FAIRNESS OF PROPOSED RATES The Rate Commission is required to include in its Rate Recommendation Report a statement as to whether the Rate Change Proposal “is consistent with constitutional, statutory, or common law as amended from time to time….” As to wastewater, while increases in rates are proposed, the District is not proposing to meaningfully alter the methodology (for both metered and non-metered customers) from what was found to be permissible in Missouri Growth Ass’n v. Metro. St. Louis Sewer Dist., 941 S.W.2d 615, 624 (Mo. App. E.D. 1997). The District has authority under § 3.020(16) of the Charter Plan to “establish by ordinance a schedule of rates, rentals, and other charges, to be collected from all the real property served by the sewer facilities of the District.” Similarly, the District has authority under § 3.020(16) to “levy, assess, and collect from all taxable property within the District….” The District is proposing an ad valorem tax on residential 11 property to fund stormwater capital projects. See Ex. MSD 1, p. 5-9. While the Charter (Plan) provides authority for such a tax, the District will need to consider the applicability of § 204.700, RSMo. Section 204.700, RSMo provides that “[n]o person who owns real property that is used for residential purposes within the boundaries of any district created under Section 30 of Article VI of the Missouri Constitution shall be assessed any fee, charge, or tax for storm water management services if the district does not directly provide sanitary sewer services to such property and if the storm water runoff from such person’s property does not flow, or is not otherwise conveyed, to a sewer maintained by such district.” If valid, this statute would prohibit the District from assessing the ad valorem stormwater tax on those properties within the District that do not have sanitary sewer service from the District, and that do not generate runoff that flows or is conveyed to the District’s sewers. During the 2018 Stormwater Rate Change proceeding, it was the District’s position that this statute is an invalid special law in violation of Art. III, § 40 of the Missouri Constitution, that the bill enacting this statute violated the single-subject requirement in Art. III, § 23 of the Missouri Constitution, and that the statute conflicts with the Charter (Plan), and is, thus, preempted. Ms. Myers testified that the District’s position remains that § 204.700 is unconstitutional and is preempted by the Charter (Plan). See Ex. MS 74, p. 31, ll. 2-14. In 2018, the Rate Commission considered the applicability of § 204.700, and concluded in its Rate Recommendation Report, that the stormwater charge at issue in that Rate Change Proceeding was consistent with constitutional, statutory, and common law, as amended from time to time. See Ex. MSD 6, p. 74. 12 Under the Stormwater Rate Change Proposal, non-residential property would be charged based on the amount of impervious surface on their property. See Ex. MSD 1, p. 5-9. This would be a new charge, and a new service to be performed by the District. Impervious surface charges have been proposed in previous rate cycles. The District cites to § 3.020(16) of the Charter Plan to “establish by ordinance a schedule of rates, rentals, and other charges,” as authority to collect and charge an impervious surface charge. The impervious surface charge poses several questions for the Rate Commission to consider in its Rate Recommendation Report. The District intends to seek voter approval for the impervious surface charge for non- residential property (as well as the ad valorem tax for residential property). See Ex. MSD 74, p. 17, ll. 2-4. This will remove the legal issue which led to the invalidation of a previous impervious surface charge proposed by the District in Zweig v. Metro. St. Louis Sewer Dist., 412 S.W.3d 223, 236 (Mo. banc 2013). In Zweig, the Missouri Supreme Court ruled that the impervious surface charge proposed by the District was not a user fee, but was a tax that must be approved by the voters under the Hancock Amendment, Art. X, §§ 16-24 of the Missouri Constitution. It is the District’s position that because it intends to seek voter approval of the impervious surface charge, the Keller2 factors – which courts use to evaluate whether a charge or remuneration to a political subdivision is a user fee or a tax – are not relevant. Ms. Susan Myers testified that if the impervious surface charge were later determined to be a tax, the impervious surface charge would likely not apply to government properties and non-profits, even if voter approval were obtained. See Ex. MSD 74, p. 39; ll. 6-11. Government property is exempt from taxation by Art. X, § 6 of the Missouri Constitution, while property owned by non-profits is exempt by § 137.100(5), RSMo. 2 Keller v. Marion Cnty. Ambulance Dist., 820 S.W.2d 301, 304 (Mo. banc 1991). 13 The differing funding mechanisms proposed by the District for residential and non- residential properties also raise some fairness questions which bear on the fifth factor in the Charter (Plan); whether the Rate Change Proposal “considers the financial impact on all classes of ratepayers in determining a fair and reasonable burden.” See Charter Plan, § 7.270. For instance, a vacant residential property with no impervious surface would be subject to the ad valorem property tax, while a vacant non-residential property with no impervious surface would not be subject to the stormwater capital rate. See Ex. RC 77, p. 19, ll. 10-15. A large residential property with lots of impervious area would likely pay less than a commercial property with similar dimensions and impervious area. See Ex. RC 77, p. 19, ll. 20-23; p. 20, ll. 1-9. A non-profit residential property would not be subject to the ad valorem property tax, while non -profit commercial property would be subject to the impervious surface charge. See Ex. MSD 92, p. 68, 15-24. 14 Respectfully submitted, LASHLY & BAER, P.C. By /s/ Lisa O. Stump Lisa O. Stump Brian J. Malone 714 Locust Street St. Louis, Missouri 63101 Tel: 314-621-2939 Fax: 314-621-6844 Email: lostump@lashlybaer.com Email: bmalone@lashlybaer.com BLACK & VEATCH Ms. Anna White 11401 Lamar Avenue Overland Park, Kansas 66211 Tel: 913-458-3025 Fax: 913-458-3579 Email: whiteam@bv.com BURNS & MCDONNELL Ms. Pamela Lemoine 425 S. Woods Mills Road, Suite 300 Chesterfield, Missouri 63017 Tel: 314-336-6320 Fax: 314-682-1600 Email: pam.lemoine@1898andco.com 15 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was sent by electronic transmission to Stephanie DeJarnette, Office Associate Senior, Metropolitan St. Louis Sewer District; Susan Myers, Counsel for the Metropolitan St. Louis Sewer District, and Diana Plescia, Counsel for Intervenor Missouri Industrial Energy Consumers, on this 7th day of August, 2023. Ms. Stephanie DeJarnette Office Associate Senior Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, MO 63103 sdejarnette@stlmsd.com Ms. Susan Myers General Counsel Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, MO 63103 smyers@stlmsd.com Ms. Diana Plescia Curtis, Heinz, Garrett & O’Keefe, P.C. 130 S. Bemiston Ave., Suite 200 Clayton, Missouri 63105 dplescia@chgolaw.com /s/ Brian J. Malone Brian J. Malone