The Florida Senate BILL ANALYSIS AND FISCAL IMPACT STATEMENT (This document is based on the provisions contained in the legislation as of the latest date listed below.) Prepared By: The Professional Staff of the Committee on Fiscal Policy BILL: CS/SB 194 INTRODUCER: Regulated Industries Committee and Senator Hooper SUBJECT: Utility System Rate Base Values DATE: April 24, 2023 ANALYST STAFF DIRECTOR REFERENCE ACTION 1. Schrader Imhof RI Fav/CS 2. Sanders Betta AEG Favorable 3. Schrader Yeatman FP Pre-meeting Please see Section IX. for Additional Information: COMMITTEE SUBSTITUTE - Substantial Changes I. Summary: CS/SB 194 creates s. 367.0811, F.S., to authorize public water and wastewater utilities to utilize an alternative fair market valuation methodology to establish the rate base for an acquired water or wastewater utility system 1 using the lesser of either: The purchase price paid for the acquired utility; or The average of three appraisals of the value of the acquired utility (appraised by three licensed appraisers chosen from a list established by the Florida Public Service Commission (PSC)). The impact to state revenues and expenditures is indeterminate at this time as the impact to state agencies is not known at this time nor is clear how the change to the PSC’s cost for transfer and rate proceedings will be affected. The effective date of the bill is July 1, 2023. 1 Under the bill, the acquired system may be an investor-owned water or wastewater utility, a municipal water or wastewater utility as described in s. 367.022(2). REVISED: BILL: CS/SB 194 Page 2 II. Present Situation: Challenges for Small Water Utilities The water and wastewater industry is one of the most capital intensive industries in the United States. 2 As of 2018, the United States Environmental Protection Agency (EPA) estimated $473 billion was needed to maintain and improve water infrastructure over the next 20 years and thousands of treatment plants, storage tanks, and other key infrastructure need to be improved or replaced. 3 According to the American Society of Engineers (AASE) there is a water main break in the United States every two minutes and six million gallons of treated water is lost, on average, each day to such breaks. 4 AASE also states funding for water infrastructure has not kept up with the need to address aging systems and, in many places, water infrastructure is aging and deteriorating. 5 Small water systems can especially struggle to make these needed investments. This happens for a number of reasons: Lack of expertise, these systems may simply lack the staff or managerial expertise necessary to identify systems in need of maintenance, repair, or replacement. Lack of capital, or at least the inability to access to lower-cost capital, to invest in system infrastructure. Lack of economies of scale inherent in larger systems. System abandonment due to disinterest of owners or management in running a system, death of the owner or operator of the system with no clear plan of succession, or frustration with an inability to meet water standards and other regulatory requirements. 6 These challenges show up in system violations. Of the 38,853 Safe Drinking Water Act (SDWA) 7 violations in the United States in 2021, 30,153 (77 percent) were in very small systems. For Florida, of the 1,382 SDWA violations, 1,017 (73 percent) were in very small systems. Fair Market Value Statutes in General Given the potential issues with small water systems, states have looked into ways to encourage system consolidation. One tool that has been used in other states is a concept called fair market valuation. Fair market valuation (FMV) is a regulatory tool that seeks to incentivize larger water utilities that may be better positioned to make investments in the system and may have better 2 National Regulatory Research Institute, A Review of State Fair Market Value Acquisitions Policies for Water and Wastewater Systems, Sep. 2021 (available at https://pubs.naruc.org/pub/ED8E5710-1866-DAAC-99FB-B70190F3D64A). 3 Environmental Protection Agency, Infographic: EPA’s 6 th Drinking Water Infrastructure Needs Survey and Assessment, Aug. 2018, https://www.epa.gov/sites/default/files/2018-08/documents/dwinsa_infographic_august_2018_final.pdf. 4 American Society of Engineers, 2021 Report Card for America’s Future, https://infrastructurereportcard.org/ (last visited March 18, 2023). 5 American Society of Engineers, The Economic Benefits of Investing in Water Infrastructure, pg. 9-12, 2020 https://www.uswateralliance.org/sites/uswateralliance.org/files/publications/VOW%20Economic%20Paper_0.pdf 6 National Regulatory Research Institute, supra note 2, at 8-11. 7 The Safe Drinking Water Act, Pub. L. 93-523, is intended to ensure the quality drinking water by regulating public water systems in the United States. Under this Act, the EPA sets standards for drinking water quality and oversees the states, federally-recognized tribes, and territories that implement the United States’ drinking water program. BILL: CS/SB 194 Page 3 access to economies of scale, lower cost capital, and water and wastewater system expertise. 8 To date, 14 states have passed some sort of FMV legislation: California, Illinois, Indiana, Iowa, Kentucky, Maryland, Missouri, New Jersey, North Carolina, Ohio, Pennsylvania, Texas, West Virginia, and Virginia. 9 Valuation of a Water Utility The traditional basis for determining the rate base of a utility is the original cost minus depreciation (also known as net book value). 10 This type of valuation is typically called “original cost valuation.” 11 Two other types of valuation are fair value—which attempts to value at a rate more closely reflecting actual market value—and reproduction cost—which attempts to value at a rate that would permit the reproduction of the property in question. 12 The theory behind original cost valuation is that by applying a required rate of return (i.e. a return on investment) of the depreciated original cost of the investment in utility property devoted to public service, and then accounting for utility operating costs and taxes, the investors in the utility are given reasonable return on their capital put at risk in operating the utility. 13 Stemming from this original cost methodology, the traditional method for valuing a utility is to use the original rate base value of the utility and deduct any depreciation. The presumption with this methodology is the value of the system is based on the value of the presumed life left in the system, based off of the original investment. 14 Proponents of FMV state this methodology can sometimes undervalue a system and make it difficult to acquire as sellers can feel as though they are not getting a fair value for their system. 15 Thus, what FMV statutes attempt to do, is set a rate that attempts to match the “market rate” for the system. This is typically done by requiring multiple appraisals of the system to be acquired and comparing that with the price paid for the system. 16 Potential Issues with Fair Market Valuation Generally, the purpose of FMV statutes is to encourage larger utilities (that generally have improved economies of scale and better access to capital) to acquire smaller or distressed systems, with the intent of improving water and wastewater system infrastructure for the acquired utility. However, FMV statutes can present some risks to ratepayers: 8 National Regulatory Research Institute, supra note 2, at 1-11, and United States Government Accountability Office, Private Water Utilities: Actions Needed to Enhance Ownership Data, pgs 38-39, March 2021 (available at https://www.gao.gov/assets/gao-21-291.pdf). 9 National Association of Water Companies: Truth from the Tap, The Many Benefits of Utility Valuation Reform, https://truthfromthetap.com/the-many-benefits-of-utility-valuation-reform/ (last visited: March 28, 2023). 10 Florida Public Service Commission, Bill Analysis for SB 194 (Feb. 10, 2023) (on file with the Senate Appropriations Committee on Agriculture, Environment, and General Government). 11 Walter J, Primeaux, Jr., Edward L. Bubnys, and Robert H. Rasche, Fair Value Versus Original Cost Rate Base Valuation During Inflation, The Energy Journal, Vol. 5, No. 2 (April 1984) (available at https://ipu.msu.edu/wp- content/uploads/2018/12/41321682.pdf). 12 Id. 13 Florida Public Service Commission, Bill Analysis for SB 194, supra note 10. 14 National Regulatory Research Institute, supra note 2, at 1. 15 Id. and National Association of Water Companies: Truth from the Tap, Municipalities and Taxpayers Deserve a Fair Deal for Utility Assets, https://truthfromthetap.com/wp-content/uploads/2022/01/FMV-Factsheet.pdf (last visited March 18, 2023). 16 National Regulatory Research Institute, supra note 2, at 1. BILL: CS/SB 194 Page 4 It can encourage utilities to simply swap assets and increase ratepayer costs without any guarantee of improvement of quality of service or increased cost efficiencies. 17 Buyers and sellers both have an incentive to raise the purchase price of the acquired utility as high as possible. Typical market forces controlling acquisition prices (i.e. buyer and seller pressuring the acquisition price in opposing directions) do not work the same for monopoly businesses. Buyers can benefit when a premium is reflected in rate base that they can pass along to customers, plus the additional opportunity to service new customers. Sellers can stand to reap a financial windfall from proceeds from the sale, and these proceeds significantly exceed their investment. 18 Monopoly assets can be difficult to value because there are not as many comparable available. There may also be a shortage of experts who can do these types of valuations. 19 Acquisitions can result in significant “rate shock” for ratepayers, especially in systems that have been historically underinvested in. 20 FMV statutes can encourage “bad behavior” in utility owners considering selling their systems as these owners may calculate that they do not need to invest in/properly maintain their system in order to sell it for a profit. 21 The hope with most FMV statutes is that struggling and distressed utilities will be acquired by larger, better run utilities. However, what can happen with FMV statutes is that the most lucrative systems to acquire are the ones that are acquired first (or at all), and, potentially, the ones most in need of investment are not. 22 Increases in the underlying value of the land upon which the acquired utility is situated can result in significant rate increases solely based on real estate prices. 23 Inflated purchase costs can run counter to two of the typical reasons for FMV statutes: lower costs for the consumer and improved performance. 24 Given these risks, most states that have enacted FMV statutes have placed restrictions on which, and under what circumstances, a water or wastewater utility may be acquired under an FMV statute. These may include: Requiring the acquiring utility be of sufficient size. Requiring the acquired utility be municipal, small, or disadvantaged or distressed. Requiring acquisition benefit from economies of scale. Providing an initial moratorium or a limit on rate increases (i.e. “rate shock protection”). This could be through a rate stabilization plan submitted by the acquiring utility or required by the utility regulator. 17 Florida Public Service Commission, Bill Analysis for SB 194, supra note 10. 18 Janice Beecher, Water utility consolidation: is fair market value fair?, Michigan State University Institute of Public Utilities, 5, 2019 (available at https://ipu.msu.edu/wp-content/uploads/2019/06/Beecher-Fair-Market-Value-Water-June- 2019.pdf), Scott Hempling, Water Mergers: are they making economic sense?, June 2019 (available at https://energiahoy.com/2019/06/02/water-mergers-are-they-making-economic-sense/), and United States Government Accountability Office, supra note 8, at 39-40. 19 National Regulatory Research Institute, supra note 2, at 17. 20 Id. 21 Id. at 18. 22 Id. at 18-19. 23 Florida Public Service Commission, Bill Analysis for SB 194, supra note 10. 24 Scott Hempling, supra note 18. BILL: CS/SB 194 Page 5 Requiring disclosure of anticipated rate impacts in an FMV application. 25 Other proposed ideas for ratepayer protections include limiting or linking rate increases to cost savings or service improvements, or creating competition amongst potential acquirers and the acquirer with the most value offered to the ratepayer “wins” (this would essentially be an auction of the utility once it puts itself up for sale). 26 Florida Public Service Commission The Florida Public Service Commission (PSC) is an arm of the legislative branch of government. 27 The role of the PSC is to ensure Florida’s consumers receive utility services, including electric, natural gas, telephone, water, and wastewater, in a safe, affordable, and reliable manner. 28 In order to do so, the PSC exercises authority over public utilities in one or more of the following areas: rate base or economic regulation; competitive market oversight; and monitoring of safety, reliability, and service issues. 29 Florida Public Service Commission Regulation of Water and Wastewater Utilities Florida’s Water and Wastewater System Regulatory Law, ch. 367, F.S., regulates water and wastewater systems in the state. Section 367.011, F.S., states the PSC has exclusive jurisdiction over each utility with respect to its authority, service, and rates. For the chapter, a “utility” is defined as “a water or wastewater utility and, except as provided in s. 367.022, F.S., includes every person, lessee, trustee, or receiver owning, operating, managing, or controlling a system, or proposing construction of a system, who is providing, or proposes to provide, water or wastewater service to the public for compensation.” Section 367.022, F.S., exempts certain types of water and wastewater operations from the PSC’s jurisdiction and the provisions of ch. 367, F.S. (except as expressly provided). Such exempt operations include: municipal water and wastewater systems, public lodging systems that only provide service to their guests, systems with a 100-person or less capacity, landlords that include service to their tenants without specific compensation for such service, and mobile home parks operating both as a mobile home park and a mobile home subdivision that provide “service within the park and subdivision to a combination of both tenants and lot owners, provided that the service to tenants is without specific compensation.” 30 The PSC also does not regulate utilities that have exempted themselves from regulation pursuant to s. 367.171, F.S. Currently, the PSC has over 149 water, wastewater, and water and wastewater utilities that are under its regulatory authority. 31 This is in comparison to four investor-owned electric utilities 25 National Regulatory Research Institute, supra note 2, at 19-31. 26 Scott Hempling, supra note 18. 27 Section 350.001, F.S. 28 See Florida Public Service Commission, Florida Public Service Commission Homepage, http://www.psc.state.fl.us (last visited Mar. 3, 2023). 29 Florida Public Service Commission, About the PSC, https://www.psc.state.fl.us/about (last visited March 28, 2023). 30 Section 367.022(2), F.S. 31 Email from Mark Futrell, Deputy Executive Director—Technical, Florida Public Service Commission, to Senate Regulated Industries Staff (March 19, 2023)(on file with the Senate Regulated Industries Committee). BILL: CS/SB 194 Page 6 and eight investor-owned gas utilities in the state. 32 Florida’s investor-owned water and wastewater utilities are much less consolidated than the state’s investor-owned electric and gas utilities. Many of these systems are quite small—currently the United States Environmental Protection Agency (EPA) classifies 83.2 percent of Florida’s water systems as very small (meaning the system serves 500 people or less). 33 The PSC data also shows the vast majority of water and wastewater systems are quite small, with 83 water systems and 58 wastewater in Florida having gross annual revenues of $300,000 or less. This means these utilities qualify (due to their small size) to have PSC staff assistance in their rate cases. 34 Water and Wastewater Ratemaking in Florida Florida is an “original cost” state in terms of rate base value. The PSC sets rates for all water and wastewater utilities within its jurisdiction and the rates must be “just, reasonable, compensatory, and not unfairly discriminatory.” 35 Florida Administrative Code Rule 25-30.115, requires water and wastewater utilities maintain their accounts and records in conformity with the 1996 National Association of Regulatory Utility Commissioners (NARUC) Uniform Systems of Accounts (USOA). 36 The NARUC USOA states “’original cost’, as applied to a utility plant, means the cost of such property to the person first devoting it to the public service.” 37 As to the “compensatory” aspect of rates, the PSC is required, in each rate-setting proceeding, to consider “cost of providing the service, which shall include, but not be limited to, debt interest; the requirements of the utility for working capital; maintenance, depreciation, tax, and operating expenses incurred in the operation of all property used and useful in the public service; and a fair return on the investment of the utility in property used and useful in the public service.” 38 However, the PSC is prohibited from allowing “the inclusion of contributions-in-aid-of- construction 39 in the rate base of any utility during a rate proceeding,” nor can the PSC, “impute prospective future contributions-in-aid-of-construction against the utility’s investment in property used and useful in the public service; and accumulated depreciation on such contributions-in-aid-of-construction shall not be used to reduce the rate base, nor shall depreciation on such contributed assets be considered a cost of providing utility service.” 32 Florida Public Service Commission, 2022 Facts and Figures of the Florida Utility Industry, pg. 5, Apr. 2022 (available at https://www.floridapsc.com/pscfiles/website-files/PDF/Publications/Reports/General/FactsAndFigures/April%202022.pdf) 33 Environmental Protection Agency, Enforcement Compliance History Online, https://echo.epa.gov/trends/comparative- maps-dashboards/drinking-water-dashboard (last visited March 28, 2023). 34 Many small water and wastewater utilities struggle with the resources and expertise necessary to properly file for and complete a full rate case. Thus, Fla. Admin. Code R. 25-30.455, authorized pursuant to s. 367.0814, F.S., provides that “water and wastewater utilities whose total gross annual operating revenues are $300,000 or less for water service or $300,000 or less for wastewater service, or $600,000 or less on a combined basis,” may apply with the PSC for staff assistance with rate applications. In staff-assisted rate cases (SARCs), 35 Section 367.081(2)(a)1., F.S. 36 NARUC USOA is incorporated by reference into Florida Admin. Code Rule 25-30.115. 37 Florida Public Service Commission, Bill Analysis for SB 194, supra note 10. 38 Section 367.081(2)(a)1., F.S. 39 Section 367.021(3), F.S., defines “Contribution-in-aid-of-construction” as “any amount or item of money, services, or property received by a utility, from any person or governmental authority, any portion of which is provided at no cost to the utility, which represents a donation or contribution to the capital of the utility, and which is used to offset the acquisition, improvement, or construction costs of the utility property, facilities, or equipment used to provide utility services.” BILL: CS/SB 194 Page 7 As to the “a fair return on the investment of the utility in property used and useful in the public service” required under s. 367.081(2)(a)1., F.S., the PSC has consistently interpreted the “investment of the utility” to be the original cost of the property when first dedicated to public service. Florida Administrative Code Rule 25-30.140(1)(r), states, “[i]n the event that an asset is acquired that is already in public service, the original historic cost of the asset should be recorded in plant in service.” Water and Wastewater Utility Acquisitions in Florida Section 367.031, F.S., requires each water and wastewater utility under the PSC’s jurisdiction must obtain a certificate of authorization from the PSC. This certificate grants the utility the authorization to provide water or wastewater service within a defined geographic area. This certificate of authorization, or the corresponding utility’s facilities, may not be sold, assigned, or transferred without authorization from the PSC. Pursuant to s. 367.071(1), F.S., the PSC may approve a sale, assignment, or transfer if such is in the public interest. A sale, transfer, or assignment may occur prior to the PSC’s approval, if the contract executing such transaction is made contingent to the PSC’s approval. Section 367.071(5), F.S., provides the PSC “may establish the rate base for a utility or its facilities or property when the commission approves a sale, assignment, or transfer thereof, except for any sale, assignment, or transfer to a governmental authority.” III. Effect of Proposed Changes: Section 1 of the bill creates s. 367.0811, F.S., to establish an alternative fair market value (FMV) process for establishing the rate base of a purchased water system 40 to be used for ratemaking purposes in the acquiring utility’s next rate case. This method differs, and is an alternative, from the original cost method existing in current statute in s. 367.081, F.S. The bill provides Legislative intent in that it finds it is in the public interest to promote consolidation efforts with water and wastewater utility systems in order to encourage economies of scale, better access to lower material and supply costs, better access to capital, improvement in utility infrastructure, and improvement in the quality of service overall. The rate base established by the proposed procedure in the bill cannot exceed the lesser of the purchase price negotiated between the parties to the acquisition transaction or the average of three required appraisals. This amount may not be adjusted for contribution-in-aid-of- construction or used and useful in serving the public. The rate base value established may also include reasonable transaction and closing costs incurred by the acquiring utility and reasonable fees paid to the appraisers. The appraisers used in valuing the utility to be acquired must be paid by the acquiring utility (acquirer), chosen from a list provided by the Public Service Commission (PSC), and the appraisal they provide must be consistent with the Uniform Standards of Professional Appraisal Practice. The acquiring utility and the utility system to be acquired (acquiree) must jointly retain a licensed engineer to assess the tangible assets of the acquiree. This assessment must be provided to the appraisers to assist in valuing the acquiree. 40 Under the bill, the acquired system may be an investor-owned water or wastewater utility, a municipal water or wastewater utility as described in s. 367.022(2). BILL: CS/SB 194 Page 8 A petition filed pursuant to s. 367.0811, F.S., to establish an FMV rate base value must include: The requested rate base value for the acquiree. Copies of the required appraisals, including the average of the valuations produced by each appraisal. A copy of the required assessment of tangible assets. A three-year plan to address each deficiency identified by the assessment of tangible assets. The plan must address impact on quality of service and any planned improvements to water quality. The five-year projected rate impact on the customers of the acquiree, including, but not limited to, the rate impact of all of the following: o Any cost efficiencies expected to result from the acquisition transaction. o Use of this section, instead of the original cost method pursuant to s. 367.081, F.S., to establish the rate base value. The contract of sale. The estimated value of fees and transaction and closing costs to be incurred by the acquiring utility. A tariff, including rates equal to the rates of the utility system being acquired. The acquirer must also include a rate stabilization plan 41 if the acquisition would result in a significant individual increase in rates during the five-year projected rate period. If a completed petition meets all of the filing requirements of the bill, the PSC will have eight months from the date of filing to issue a final order on the petition. In its order, the PSC may, in the public interest, grant the petition, in whole or in part, or with modifications, or may deny the petition. However, the PSC may not approve a rate base value higher than that requested in the petition. In future rate cases, the bill permits the PSC, pursuant to ch. 367, F.S., to set rates for the acquired utility system in future rate cases and may classify the acquired utility system as a separate entity for ratemaking purposes if it is deemed to be in the public interest. The acquiring utility under s. 366.0811, F.S., must be engaged in an arms-length transaction with the acquiree, and either have 10,000 or more customers or be permitted to produce at least three million gallons per day of drinking water. In considering a rate base value petition pursuant to the section, the PSC must consider all of the following standards: Improvements in quality of service. Improvements in compliance with regulatory requirements. Rate reductions or rate stability over a long-term period. Cost efficiencies. A demonstration that the purchase is being made as part of an arms-length transaction. Economies of scale to be generated by the transaction. 41 The bill defines a “rate stabilization plan” as an acquirer’s plan to implement rate changes incrementally over a period of time to mitigate rate increases and to predictably achieve consolidated pricing over time. BILL: CS/SB 194 Page 9 A comparison of the acquirer’s net book value, to the extent available, and the proposed rate base value of the acquiree. A demonstration that the acquirer has greater access to capital than the acquiree. The PSC may use these standards to set reasonable performance goals and may review performance regarding the standards in a rate proceeding. The bill also directs the PSC to adopt rules to implement the section. Section 2 of the bill provides an effective date of July 1, 2023. IV. Constitutional Issues: A. Municipality/County Mandates Restrictions: None. B. Public Records/Open Meetings Issues: None. C. Trust Funds Restrictions: None. D. State Tax or Fee Increases: None. E. Other Constitutional Issues: None. V. Fiscal Impact Statement: A. Tax/Fee Issues: None. B. Private Sector Impact: Under CS/SB 194, some acquired utilities will likely see higher valuations than under Florida’s current rate base valuation scheme. This would increase the purchase price of those utilities and could lead to higher rates for such utilities’ customers, at least in the short term. Customers may also see a rate impact from transaction, closing, and appraiser costs allowed to be included in rate base value under the bill. BILL: CS/SB 194 Page 10 C. Government Sector Impact: According to the Public Service Commission’s (PSC) analysis, the impact of CS/SB 194 on state agencies is not known at this time. It is unclear how the change to the PSC’s cost for transfer and rate proceedings will be affected. 42 VI. Technical Deficiencies: None. VII. Related Issues: In its analysis of the bill, the Public Service Commission (PSC) stated it does not have expertise in property appraisers and thus they may be ill-equipped to establish and maintain a list of approved appraisers. The PSC suggested an alternative to have another agency with expertise in the area, such as the Department of Business and Professional Regulation, which regulates appraisers, maintain this list. 43 CS/SB 194 may generate litigation, as the PSC states all fair market value (FMV) acquisitions may have to be processed exclusively as s. 120.57, F.S., hearings. In addition, the PSC believes there may be litigation from ratepayers and consumer advocates in regards to assessment of potentially excessive rates and evaluation costs. The PSC also anticipates that it may have litigation in regards to establishing and maintaining the list of appraisers. 44 VIII. Statutes Affected: This bill creates section 367.0811 of the Florida Statutes. IX. Additional Information: A. Committee Substitute – Statement of Changes: (Summarizing differences between the Committee Substitute and the prior version of the bill.) CS by Regulated Industries on March 21, 2023: The committee substitute amended SB 194 to: Add legislative intent; Require that the acquiring utility file a rate stabilization plan if the acquisition would result in a significant individual increase in rates; Revise the applicability of the bill to water and wastewater utilities that are engaged in an arms-length transaction and either 1) provide water or wastewater service, or both, to more than 10,000 customers; or 2) are permitted to produce at least three million gallons per day of drinking water; Provide minimum standards that the Public Service Commission (PSC) must use in considering a rate base value petition pursuant to the bill; 42 Id. 43 Id. 44 Id. BILL: CS/SB 194 Page 11 Authorize the PSC to set reasonable performance goals for the acquiring utility based on the standards provided in the bill and review performance regarding these standards in a rate proceeding; and Make technical changes. B. Amendments: None. This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.