2009-274, Appeal of Pennichuck Water Works, Inc. & a.

J. Mullen on the brief), for intervenor Anheuser-Busch. Ransmeier & Spellman, P.C., of Concord (John T. Alexander and Daniel

respondents. Conner and Misty Smith Kelley on the brief, and Mr. Conner orally), for the Bearman, Caldwell & Berkowitz, P.C., of Chattanooga, Tennessee (Joe A. Donovan & a. on the brief, and Mr. Donovan orally), and Baker, Donelson, McLane, Graf, Raulerson & Middleton, P.A., of Concord (Thomas J.

brief, for the petitioner. to press. Errors may be reported by E-mail at the following address: Richardson on the brief and orally), and James M. McNamee, of Nashua, by Upton & Hatfield, LLP, of North Conway (Robert Upton, II and Justin C.

(New Hampshire Public Utilities Commission) page is: http://www.courts.state.nh.us/supreme. APPEAL OF PENNICHUCK WATER WORKS, INC. & a.

No. 2009-274 editorial errors in order that corrections may be made before the opinion goes Public Utilities Commission Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 We affirm.

as well as the PUC’s determination of the fair market value of PWW’s assets.

the municipality’s qualified voters at a regular election or special meeting called

contesting the PUC’s dismissal of its petition with respect to PWW’s affiliates, conditions to satisfy the public interest. The City has filed a cross-appeal, The Utilities now appeal this determination and challenge the imposition of

have voted.” RSA 38:3. This vote must then be confirmed by a majority vote of

maintain and operate them as publicly owned facilities.”

38:3 (2000) that acquiring PWW’s plant and property was in the public interest.

a privately-owned utility “after 2/3 of the members of the governing body shall

eminent domain privately owned electric, gas and water utilities in order to

PUC found that the Utilities had failed to rebut the presumption under RSA summarize the procedures contained in RSA chapter 38. (collectively, the Utilities). In approving the City’s petition against PWW, the (Pennichuck East) and Pittsfield Aqueduct, Inc. (Pittsfield Aqueduct)

(2000). A municipality may move forward with a plan to assume ownership of

municipalities, with PUC approval and at a value set by the PUC, “to take by Corp. v. City of Nashua, 152 N.H. 729, 731 (2005). RSA chapter 38 empowers

Before setting forth the facts relevant to the instant appeal, we first

to acquire PWW and its affiliates, respondents Pennichuck East Utilities I. Background

petition filed by the petitioner, City of Nashua (City), in which the City sought order of the New Hampshire Public Utilities Commission (PUC) approving the DALIANIS, J. Respondent Pennichuck Water Works (PWW) appeals an

memorandum of law), for intervenor Town of Pittsfield. Mitchell Municipal Group, P.A., of Laconia (Laura A. Spector on the

brief), for intervenor Town of Merrimack. Boutin & Altieri, P.L.L.C., of Londonderry (Edmund J. Boutin on the

Valley Regional Water District. Pierre A. Chabot on the brief, and Mr. Judge orally), for intervenor Merrimack Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Stephen J. Judge and

brief), for intervenor Business & Industry Association of New Hampshire. Barbara A. M. Maloney, PLLC, of Auburn (Richard J. Maloney on the corporate entities; only PWW is engaged in the sale of water in the City.

p. 3 Middleton. PWW, Pennichuck East and Pittsfield Aqueduct are separate

Pittsfield; it has since expanded to serve customers in Barnstead, Conway and Pittsfield Aqueduct received the notice from the City, it served customers in Londonderry, Pelham, Plaistow, Raymond, Sandown and Windham. When

municipality must pay for the assets in question.

Hampshire, including: Atkinson, Bow, Derry, Hooksett, Lee, Litchfield,

The PUC also determines the amount of just compensation that the

4,900 customers in twelve municipalities in southern and central New utility in the state. Pennichuck East provides water service to approximately Milford, Newmarket, Plaistow and Salem. It is the largest investor-owned water of a possible sale of some or all of the Utilities’ assets.

the PUC “may set conditions and issue orders to satisfy the public interest.” 38:11 (2000), when determining whether the taking is in the public interest, PUC has determined that the taking is in the public interest. Pursuant to RSA residents. all or part of the privately-owned water works system serving the City’s N.H. at 732. On November 30, 2003, the City made a formal offer to purchase

Hampshire, including: Amherst, Bedford, Derry, Epping, Hollis, Merrimack, The City and the Utilities entered into negotiations concerning the terms

by condemnation if, after notice and hearing, pursuant to RSA 38:9 (2000), the

aldermen decided to establish a municipal water works system and to acquire

as determined by the [PUC].” RSA 38:6 (2000); customers in the City and ten other municipalities in southern and central New the municipality which the public interest may require, pursuant to RSA 38:11 PWW is a privately-owned public utility that serves approximately 24,500 located within the municipality, as well as “that portion, if any, lying without to establish a municipal water works system. Id. Id. In February 2003, the City notified the Utilities of its intent to acquire them by the mayor in December 2002 and confirmed by City voters in January 2003.

Pennichuck Corp., 152 N.H. at 732. This resolution was approved 38:7. RSA 38:10 (2000), in turn, allows the municipality to take the property

municipality may proceed to acquire the plant as provided in RSA 38:10.” RSA this case, the Utilities indicate their unwillingness to negotiate a sale, “the In November 2002, by a vote of fourteen to one, the City’s board of

at 731; see RSA 38:9, I, III, :10.

the utility and inquire if it is willing to sell the identified plant and property

731. The utility is given sixty days to respond. RSA 38:7 (2000). When, as in

Within thirty days of the confirming vote, the municipality must notify

public interest. Pennichuck Corp., 152 N.H. at 731. confirming vote creates a rebuttable presumption that the acquisition is in the for this purpose. Id.; Pennichuck Corp., 152 N.H. at 731. A favorable customers of PWW’s affiliates.

p. 4 plus the addition of $40 million for a mitigation fund for impacts to the

commissioner calculated the fair market value of PWW’s assets as $151 million but dissented with respect to their valuation of PWW’s assets. The third commissioners’ public interest determinations and imposition of conditions,

commissioner, Clifton C. Below, concurred with respect to the other

subsidiaries for the loss of the affiliation with PWW. A third PUC a mitigation fund of $40 million to reimburse customers of PWW’s other City’s petition upon the City fulfilling nine conditions, including the creation of

$203 million as of December 31, 2008; and (4) conditioning approval of the

water; (3) determining that the fair market value of the assets in question was

structure and provides all customers with the same quantity and quality of continues to operate the entire PWW system according to a unified rate outside of the City’s borders was in the public interest provided that the City

finding that the City had demonstrated that the taking of PWW’s property

Commissioner Below stated that he would have granted rehearing on the issue

taking of its property within the City’s borders was in the public interest; (2) 4 order: (1) finding that PWW had failed to rebut the presumption that the commissioners, Thomas B. Getz and Graham J. Morrison, issued a lengthy

Commissioners Getz and Morrison denied these motions for rehearing.

condemnation of any of PWW’s assets was in the public interest.

ten days in September 2007. On July 25, 2008, two of the PUC’s

The Utilities and the City moved for rehearing. On March 13, 2009,

ruling, the PUC emphasized that it had not yet determined whether

PUC heard the merits of the City’s petition over two days in January 2007 and

that the City could continue its condemnation proceeding against PWW. In so they did not provide water service to City residents. The PUC ruled, however, ruling that the City could not condemn the property of these utilities because

and to determine damages. to find that the condemnation of the Utilities’ assets was in the public interest judgment action, the City filed a condemnation petition with the PUC, asking it After the parties engaged in extensive discovery and motion practice, the

judgment in favor of the City. We affirmed the trial court’s decision.

dismissed the City’s petition against Pennichuck East and Pittsfield Aqueduct,

Approximately one month after the Utilities filed their declaratory

730-31.

superior court rendered its decision in August 2004, granting summary judgment to terminate or limit the City’s condemnation efforts. Id. The The Utilities, thereafter, filed suit in superior court, seeking a declaratory

December 2003 and terminated negotiations in January 2004. Id. the Utilities’ assets for $121 million. Id. The Utilities rejected this offer in p. 5 Aqueduct.

urges us to uphold the PUC’s establishment of the $40 million mitigation fund.

double the combined values and revenues of Pennichuck East and Pittsfield Pennichuck East and Pittsfield Aqueduct; and (3) required a mitigation fund of flawed theory; (2) dismissed the City’s petition to acquire the assets of

the PUC’s public interest finding is wrong; and, finally, the Town of Pittsfield Town of Merrimack opposes the City’s petition to take PWW and argues that indicated it would convey PWW, challenges the PUC’s valuation of PWW; the

PUC erroneously: (1) calculated the fair market value of PWW based upon a

public interest; Merrimack Valley, the entity to which the City’s initial petition the evidence, that the order is unjust or unreasonable. RSA 541:13 (2007); 5

generate the necessary revenue. In its cross-appeal, the City contends that the fund, it does not support a finding that $40 million would be sufficient to evidence, the admission of hearsay or technically irrelevant or immaterial methodology; and (5) although the evidence supports the need for a mitigation

argues that we should reverse the PUC’s finding that this taking is in the the City’s operation of PWW; BIA opposes the City’s petition to take PWW and demonstrating that the order is contrary to law or, by a clear preponderance of Anheuser-Busch urges us to uphold the conditions imposed by the PUC upon

262 (2003). Further, because the PUC is not bound by the technical rules of required by the New Hampshire Constitution; (4) the PUC failed to set forth its Utilities Comm’n, 118 N.H. 93, 99 (1978); see Appeal of Basani, 149 N.H. 259, PUC could conclude as it did. Legislative Utility Consumers’ Council v. Public this presumption only by showing that there was no evidence from which the of Verizon New England, 153 N.H. at 56. The appealing party may overcome PUC are presumed prima facie lawful and reasonable. RSA 541:13; see Appeal Appeal of Verizon New England, 153 N.H. 50, 56 (2005). Findings of fact by the

A party seeking to set aside an order of the PUC has the burden of Merrimack and Pittsfield. Briefly summarized, their positions are as follows: II. Standard of Review

the PUC failed to weigh the benefits and burdens of the proposed taking, as imposing conditions, the PUC violated PWW’s procedural due process rights; (3) exercise jurisdiction over the City in violation of RSA 362:4 (2009); (2) by

Merrimack Valley Regional Water District (Merrimack Valley), and the Towns of Anheuser-Busch, Business & Industry Association of New Hampshire (BIA), In addition to the parties, five intervenors have filed appellate briefs:

the PUC exceed its statutory authority because enforcing them requires it to

determination.

In their appeal, the Utilities argue that: (1) the conditions imposed by

municipal buyer would pay for PWW as a foundation for its valuation of whether the PUC erred by using the price a hypothetical not-for-profit merits was issued.

p. 6 examining the language of pertinent provisions of RSA chapter 38 governing

not ask the PUC to reconsider its dismissal until after the final order on the The Utilities assert that the City failed to preserve its argument because it did corporate affiliates servicing customers in towns and cities other than the City). express words or the necessary implication of those words,” we begin by

the [PUC] and not to the preference of reviewing courts.” to acquire the assets of Pennichuck East and Pittsfield Aqueduct (PWW’s within the clear definition of the grant,” and this “definition is bounded by the and that the legislature has entrusted such policy to the informed judgment of for a public use, being derogatory of common right, may be exercised only Because “[i]t is fundamental that a legislative grant of power to condemn

to analyze its merits. City’s motion for rehearing was sufficient to preserve its argument, and proceed within thirty days of agency order). We assume, without deciding, that the

We first address whether the PUC erred by dismissing the City’s petition recognize that discretionary choices of policy necessarily affect such decisions, A. Dismissal of Petition to Acquire PWW’s Affiliates

supplant the PUC’s balance of interests with one more nearly to our liking.” III. Analysis anticipate such an administrative resolution, our responsibility is not to novo. See Appeal of Verizon New England, 158 N.H. at 695. to its statutory interpretation; we review the PUC’s statutory interpretation de While we give the PUC’s policy choices considerable deference, we do not defer Conservation Law Foundation, 127 N.H. 606, 616 (1986) (quotation omitted).

corresponding obligation of judicial deference are the more acute when we staff. (quotation, ellipsis and brackets omitted). “The statutory presumption, and the

agency orders which seek to balance competing economic interests, or which of Verizon New England, 158 N.H. 693, 695 (2009). “When we are reviewing We deferentially review PUC orders such as the one at issue. See Appeal

matter for its judgment based upon the evidence presented.” Id. presented by staff witnesses in preference to that offered by the company is a witnesses. Id. at 102. “Whether it should rely upon the expert testimony not compelled to accept the opinion evidence of any one witness or group of New England Tel. & Tel. Co. v. State, 113 N.H. 92, 101-02 (1973). It is upon the evidence presented, but also upon its own expertise and that of its Additionally, in arriving at its conclusions, the PUC may rely not only

Appeal of McKenney, 120 N.H. 77, 81 (1980); see RSA 541:17 (2007). evidence is insufficient to render its order unjust, unreasonable, or unlawful. indisputably have not been engaged in distributing water for sale in the City. p. 7 East and Pittsfield Aqueduct, the other separately incorporated entities that PWW’s assets by eminent domain, and may not take the assets of Pennichuck

utility that is not engaged at all in serving municipal residents. RSA 38:2, I,

qualified voters. Under RSA 38:6, “[w]ithin 30 days after the confirming vote that it is expedient to do so” and after this action is confirmed by a majority of

RSA 38:11 as determined by the [PUC].” without the municipality which the public interest may require, pursuant to

may permit. We do not interpret RSA 38:2, I, to allow a municipality to take a

after two-thirds “of the members of the governing body shall have voted . . .

Under RSA 38:6, the municipality “shall purchase that portion, if any, lying

undisputed that, of the three utilities, only PWW was engaged in distributing distributing . . . water for sale in the municipality.” RSA 38:6. As it is owned water utility that is “engaged, at the time of the vote, in generating or use of its inhabitants and others, and for such other purposes” as the PUC allows it to take a plant for the distribution of water “for municipal use, for the In arguing for a contrary result, the City focuses upon RSA 38:2, I, which RSA 38:3 enables a municipality to move forward to “establish such a plant”

governing body determines to be necessary for the municipal utility service.” the utility’s plant and property located within such municipality that the the vote.” RSA 38:6 allows the municipality to “purchase all or such portion of

these statutes allow a municipality only to take by eminent domain a privately- Giving these words their plain meaning, we agree with the PUC that

others, and for such other purposes as may be permitted . . . by the [PUC].” whole. distribution of . . . water for municipal use, for the use of its inhabitants and and maintain and operate . . . one or more suitable plants for the . . .

the vote, in generating or distributing . . . water for sale in the municipality, of . . . the governing body shall notify in writing any utility engaged, at the time of where reasonably possible, to effectuate their underlying policies.

legislature’s intent as expressed in the words of the statute considered as a

RSA 38:2, I, empowers a municipality to “take . . . or otherwise acquire

possible, we will construe the various statutory provisions harmoniously. Id. School Dist. v. State, 140 N.H. 457, 458 (1995). Insofar as reasonably

consideration of the plain meaning of the relevant statutes, construing them, Ashland Elec. Dept., 141 N.H. 336, 340 (1996). Our analysis must start with in isolation, but in the context of the overall statutory scheme. Appeal of Zorn v. Demetri, 158 N.H. 437, 438 (2009). We interpret statutes not

In matters of statutory interpretation, we are the final arbiters of the

utility. Interstate Bridge &c. v. Ham, 91 N.H. 179, 181 (1940). the power of a municipality to take property from a privately-owned public burden of persuasion, as well as the burden of producing evidence.” p. 8 presumed fact. In such situations, the presumption should act to shift the the introduction of some evidence tending to rebut the existence of the 8 should have disappeared, and the PUC should have determined, some evidence that the taking was not in the public interest, the presumption the presumption embodies. In general, jurisdictions will adopt the Morgan is spent and disappears.”

strong social policy reasons underlying some presumptions may persist despite

was in the public interest. In effect, they argue that because they presented thus operates with a weight commensurate with the policy considerations that presumed fact. If that evidence is produced by the adversary, the presumption standard.” Cunningham, 129 N.H. at 236. “A Morgan theory presumption presumed fact by at least a preponderance of the evidence, if not by a greater opponent of the presumption must then demonstrate the non-existence of the assets was in the public interest. these utilities. Cunningham, 129 N.H. at 236; see Dix et al., supra § 344, at 509, 517. “The

ed., 6th ed. 2006). The second theory, the Morgan theory, “holds that the see 2 G. Dix et al., McCormick on Evidence § 344, at 508 (Kenneth S. Broun to rebut the presumption that the City’s taking of PWW’s assets within the City Cunningham, 129 N.H. at 235 (quotation omitted);

of a presumption is to shift the burden of producing evidence with regard to the Reporter’s Notes. The first theory, the Thayer theory, “holds that the only effect Manchester Fire Dep’t the City, the PUC ruled that the City had demonstrated that taking these, 129 N.H. 232, 235 (1987); see N.H. R. Ev. 301 There are two theories of presumptions. residents. Accordingly, RSA 38:2, I, and RSA 38:6 do not allow the City to take Cunningham, Adm’x v.

the taking was not in the public interest.

The Utilities first argue that the PUC erred when it found that they failed

failed to rebut the presumption. With respect to PWW assets located outside of neither Pennichuck East nor Pittsfield Aqueduct has ever serviced City located within the City. The PUC found that those opposing the City’s petition part, in servicing a municipality’s own residents. Here, it is undisputed that dispute, that this presumption applies only to the City’s taking of PWW’s assets these statutes allow a municipality to take a utility that is engaged, at least in See Pennichuck Corp., 152 N.H. at 731. The PUC ruled, and the parties do not municipality’s acquisition of a privately-owned utility is in the public interest. is in the public interest. RSA 38:3 creates a rebuttable presumption that a We next address the PUC’s finding that the City’s taking of PWW’s assets

B. Public Interest Finding

and others.” Reading this language together with RSA 38:6, we conclude that authorizes the taking of a plant “for the use of [the municipality’s] inhabitants the PUC’s order is more than sufficient for our review. p. 9 the PUC’s findings or its underlying reasoning. Accordingly, we conclude that

order discussed the public interest issue, we have no difficulty in discerning

is in the public interest. Because of the thoroughness with which the PUC public if a taking occurs for the intended purpose.

related concepts.

located outside of the City, the City established that the taking of these assets the public interest, and whether, with respect to the taking of PWW assets showing of a public purpose for any taking and of a probable net benefit to the sufficient evidence to rebut the presumption that the taking of such assets is in evidence, that the proposed taking was not in the public interest. petition to acquire PWW had to demonstrate, by at least a preponderance of the

appellate review. (1985). As we have previously explained:

See Merrill v. City of Manchester, 127 N.H. 234, 236-37

589, 595 (1988). “Public purpose” and “probable net benefit to the public” are

domain power to “public uses,” which has been interpreted to require a with respect to the taking of PWW assets located within the City, there was Part I, Article 12 of the State Constitution limits exercise of the eminent to conduct the net public benefit analysis, which was constitutionally required. facilities”). Accordingly, to rebut this presumption, those opposing the City’s The Utilities and the Town of Merrimack also assert that the PUC failed

is governed by the Morgan theory. distribution system, we conclude that the presumption contained in RSA 38:3 objectives in favor of allowing municipalities to take over an existing water

submitted by the parties on this issue and then carefully analyzed whether, public interest issue. The PUC exhaustively described all of the evidence owned . . . utilities in order to maintain and operate them as publicly owned The PUC devoted no fewer than thirty-six pages of its 120-page order to the

See Appeal of Town of Newington, 149 N.H. 347, 352 (2003).

The Utilities next argue that the PUC failed to set forth its reasoning or

petition failed to meet this standard was unjust or unreasonable. cannot say that the PUC’s determination that the opponents to the City’s instructive. Here, because RSA 38:3 reflects the legislature’s significant policy Cunningham, 129 N.H. at 236. Based upon our review of the record, we

chapter 38 is to empower municipalities to take by eminent domain privately City of Dover, 153 N.H. 181, 190 (2006) (recognizing that “[t]he purpose of RSA Departments and Administration, Hr’g on HB 528 1-3 (April 21, 1997); State v.

541:17, we find this discussion of the different theories of presumption Although the rules of evidence do not govern PUC proceedings, see RSA

judiciary wishes to implement a significant policy objective.” Id. theory of the effect of a particular presumption when the legislature or public interest would not be served by allowing a municipality to acquire it.”

p. 10 conjunction with its regulated affiliates . . . , is a successful regional utility the Constitution. The PUC stated that it did not agree with the Utilities that “because PWW, in violate the public use requirement of part I, article 12 of the State however, that the PUC considered this evidence and found it unpersuasive.

from private) in nature to raise constitutional difficulties.”

participants, and the use of the power of eminent domain will expand into new areas.” (Quotations and brackets omitted.) The record shows,

the proposed taking is being challenged as insufficiently public (as distinct

benefits of the project will accrue only to its private sponsors and concerning Pennichuck’s positive record as a utility and its willingness to instance, the Utilities contend that the PUC “never weighed evidence . . . evidence before it regarding whether the taking was in the public interest. For 10

further observed, “this is not a proceeding in which the underlying purpose of

constitutional sufficiency.” be said to be built for a public use. In such a case, the true social costs exceed the probable benefits, then the project cannot social costs of the loss of the property in its present form. If the Utilities and the Town of Merrimack, the PUC considered and weighed all of the

purpose for which the power of condemnation may be delegated.”). As the PUC

a given “[t]hat the provision of public water supply is a public purpose of

characteristics of the property in its present form, reduced by the The record in this case reveals that, contrary to the assertions of the

(1963) (“It has long been established that supplying electricity is a public properly be used.

purpose of the taking is unassailable and undisputed. As the PUC noted, it is In this case, unlike many other eminent domain proceedings, the public proposed project and the benefits of the eradication of any harmful Id. at 236-37 (citations and quotation omitted). The net benefit to the public will consist of the benefits of the the extent to which the proposed project will benefit the public.

purposes for the accomplishment of which public money may

being condemned is a public use, we must accordingly consider In determining whether the purpose for which property is

private uses, which is forbidden, or whether they will serve public expenditures will be primarily of benefit to private persons or proposed condemnation, we must determine whether the resolved by the courts. In gauging the constitutionality of a Whether a particular use is a public use is a question of law to be provide that this contractor handle all customer inquiries; (4) have technical

p. 11 customer service functions and amend its contract with its contractor to

systems,” this evidence was merely speculative. suggested that PWW was more willing than the City “to acquire troubled water within certain risk parameters.” The PUC observed that while the evidence terms and conditions of all existing wholesale contracts; (3) not bifurcate its provide service to all PWW’s wholesale users in accordance with the rates, location, with the same service at the same rates, terms and conditions; (2)

interests of shareholders, who expect to maximize return on their investment decisions.” adopt such a skeptical view of the ability of elected officials to make good

service to all customers within the current PWW territory, regardless of

owned utility cannot be expected to do so unless such a decision is in the best duty to determine the proper weight to be given to evidence. that result was consistent with good public policy, . . . ultimately an investor- assertion and rejected it, noting that “[i]t would be inappropriate for us to [PWW] and its subsidiaries have been willing to expand into new areas when approval of the City’s taking of PWW, which required the City to: (1) provide more nearly to our liking.” conveyance at issue were lawful. The PUC imposed nine conditions upon its We next address whether the conditions the PUC imposed upon the

C. Conditions

reviewing PUC orders. Id. McKenney, 120 N.H. at 81. This court does not sit as a trier of fact when

evidence that the City’s taking was not in the public interest. It is the PUC’s elect those politicians.” To the contrary, the PUC expressly considered this Merrimack contend that the PUC failed to accord proper weight to their and rejected it as speculative. The PUC stated that while “[i]t is laudable that (quotation and brackets omitted). In effect, the Utilities and the Town of

the Town of Merrimack to “supplant the PUC’s balance of interests with one issue was in the public interest. We decline the invitation of the Utilities and before it and engaged in the proper analysis to determine whether the taking at In short, the record shows that the PUC considered all of the evidence

operation of a water system not to the benefit of those communities that cannot statewide.” The record shows, however, that the PUC considered this evidence that the City’s ownership of PWW “would interject a political element into the operational capability necessary to assist and take over troubled water systems Similarly, the Town of Merrimack argues that the PUC ignored evidence largest investor-owned regional water company, with the capital and

the public interest of the state as a whole from losing access to the state’s The Utilities likewise contend that the PUC “never weighed the damage to p. 12 III-a(a) (2009).

municipality”; or (2) it supplies bulk water to another municipality. RSA 362:4, of water or a level of water service equal to that served to customers within the its municipal customers . . . and serves those customers a quantity and quality

municipal boundaries “a rate no higher than 15 percent above that charged to

“public utility” for other purposes if: (1) it charges “new customers” outside

corporation that provides water service outside of its boundaries is not a operate a plant to distribute water accounting, reporting or auditing functions. RSA 362:4, II (2009). A municipal services outside of its boundaries is also not a “public utility” for the purpose of

that seeks to establish, expand, take or otherwise acquire, maintain and

jurisdiction. RSA 362:2, I (2009). A municipal corporation that provides water

proposed seven.

generally not “public utilities” subject to the PUC’s jurisdiction, a municipality

solely within its corporate limits, is not a “public utility” subject to the PUC’s utility.” RSA 362:4, I (2009). A municipal corporation, however, that operates entity that owns or operates a water system or part thereof is deemed a “public

obtain permission and approval from the PUC). RSA chapter 38 “sets forth in any described in RSA 374:48-:56 (2009). Of these nine conditions, the City entity seeking to operate as a public utility in New Hampshire to first policies. forth in RSA chapter 38. See RSA 38:2; see also RSA 374:22 (2009) (requiring

the overall statutory scheme. violates RSA chapter 362. We interpret the pertinent statutes in the context of Although municipal water companies that are already in operation are jurisdiction over the City after the conveyance occurs, which, they contend,

owned, operated or controlled by the same.” RSA 374:3 (2009). Generally, any

in the underground utility damage prevention system known as “Digsafe” as where reasonably possible, harmoniously to effectuate their underlying contractors incorporating these conditions; and (9) participate as an operator affiliation with PWW; (8) submit for PUC approval its agreements with its

statutory authority because enforcing them will require it to exercise its

The PUC has “general supervision of all public utilities and the plants

Nashua School Dist., 140 N.H. at 458.

We start with the plain meaning of the relevant statutes, construing them, incurred by PWW’s other utility subsidiaries arising out of the loss of their Appeal of Ashland Elec. Dept., 141 N.H. at 340. water system; (7) establish a mitigation fund to account for the costs ultimately recommendations concerning technical operations and policies related to the request from any customer; (6) establish a technical advisory board to provide The Utilities first assert that the nine conditions exceeded the PUC’s

process information available electronically daily or more frequently, upon advisors on call twenty-four hours per day; (5) make technical water treatment expressly created one.

p. 13 have so stated. We will not imply a limitation when the legislature has not intended to limit the PUC’s authority in the way the Utilities suggest, it could meaningless. purchase or taking, qualify as a regulated public utility. Had the legislature

public interest. this way, the Utilities’ construction of the statutes renders RSA 38:11 virtually purchase or taking of a public utility unless the municipality will, after the of municipalities that qualify as “public utilities” under RSA chapter 362. In acquisition or taking, the municipality happened to fall within the small group

interest” when the PUC determines whether the purchase or taking is in the 38:11 allows the PUC to “set conditions and issue orders to satisfy the public to be purchased from the other plant and property of the owner.” Further, RSA in RSA 38:11 precludes the PUC from imposing conditions upon municipal The plain language of RSA 38:11 does not support this construction. Nothing system, but would lack any authority to enforce them unless, after the municipality will qualify as a regulated public utility under RSA chapter 362.

specific statute controls over the general statute.”

of damages, if any, caused by the severance of the plant and property proposed conditions upon a municipality’s taking or acquisition of a water distribution or taking of a public utility, unless, after the purchase or taking occurs, the

statutory construction “that in the case of conflicting statutory provisions, the

plants. establishment, expansion, or acquisition of electric, gas or water distribution the price to be paid for such plant and property” and to “determine the amount conflicts with RSA chapter 38, RSA chapter 38 specifically governs municipal purchase. Additionally, RSA 38:9, III requires the PUC, upon petition, to “fix Under the Utilities’ interpretation, the PUC would have the authority to impose 500, 510 (1985) (quotation omitted). Here, to the extent that RSA chapter 362 of the municipality that the public interest may require the municipality to require it to exercise jurisdiction over a municipality after municipal purchase Appeal of Plantier, 126 N.H.

The Utilities’ argument is also contrary to our well-settled rule of

The Utilities’ construction would also lead to an anomalous result. PUC to determine the portion of the utility’s plant and property located outside authority in RSA 38:11, the PUC may not enforce any conditions that would

specific aspects of such an acquisition. For instance, RSA 38:6 requires the The Utilities argue, in effect, that notwithstanding the broad grant of

Several provisions within RSA chapter 38 require the PUC to oversee

constructing ‘a plant.’” Appeal of Ashland Elec. Dept., 141 N.H. at 340. great detail the procedures a municipal utility must follow before acquiring or require additional PUC action does not mean that no avenue of recourse exists.

p. 14 available should the City violate the conditions or should compliance with them conditions themselves do not describe the avenues of recourse that may be renders the taking no longer in the public interest.” The fact that the

chapter 362. after the acquisition, the City will not operate as a “public utility” under RSA

changes to contractor agreements . . . such that it has an impact on rates and

the cooperative. acquisition upon the City’s fulfillment of certain prerequisites, even though,

proposed expansion within its own borders. or if the PUC “is faced with the reality of significant, but necessary, cost million fund has structural defects or will not yield sufficient annual revenues” the public “with no recourse . . . if the PUC later determines that the $40 public utility. The Utilities also argue that the conditions imposed left the Utilities and jurisdiction once it decided to build a distribution plant in territory served by a

See RSA 38:11.

build its own distribution plant to service the customers currently served by generally and RSA 38:11 specifically, the PUC may condition its approval of the :3. As part of the oversight authority expressly granted to it by RSA chapter 38 utility by eminent domain is subject to the PUC’s jurisdiction. See RSA 38:2, was not subject to PUC jurisdiction, the PUC had no authority to regulate its jurisdiction if it operated its own water system, the City’s taking of a public Similarly, here, although the City would not normally be subject to PUC

See id. chapter 38.

Ashland was not generally subject to PUC jurisdiction, it became subject to this territory served by a public utility. Id. Although as a municipal utility, municipal utility seeks to acquire or construct a distribution plant within town chose not to take the property by eminent domain, but instead decided to 340. RSA chapter 38, we explained, governs whenever a municipality or assertion in part because it violated provisions within RSA chapter 38. Id. at

Ashland argued that because it was a municipal utility that generally

ruling. Id. at 337, 338.

Id. The PUC denied this request, and we affirmed the PUC’s

service area within town limits without prior PUC approval pursuant to RSA

Id. Ashland asked the PUC to declare that it could expand its

When the rural electric cooperative responded that it was unwilling to sell, the voted to acquire the rural electric cooperative’s distribution plant. Id. at 338. service. Id. at 337-38. The town decided to expand Ashland’s service area and 38. A rural electric cooperative provided service to the areas Ashland did not most, but not all, of the town. Appeal of Ashland Elec. Dept., 141 N.H. at 337- (Ashland), was a municipal electric utility that provided electrical service to 41, is instructive. In that case, the petitioner, Ashland Electric Department Our decision in Appeal of Ashland Electric Department, 141 N.H. at 340staff, related to the allocation of customer service functions between City

p. 15 meaningful manner.” to the holder of the interest the right to be heard at a meaningful time and in a interest, the due process clause of the New Hampshire Constitution guarantees

throughout the proceeding. For instance, one of the concerns, raised by PUC

federal opinions for guidance only. Constitutions, we first address them under the State Constitution, and cite 15 PUC imposed. “Where governmental action would affect a legally protected

which prompted the PUC to impose the nine conditions, were well vetted

Utilities have raised these arguments under both the State and Federal deprived them of an opportunity to be heard with respect to the conditions the

This argument lacks merit. The record demonstrates that the concerns,

(quotation omitted).

and its prefiled testimony.” We address each argument in turn. Although the In their next argument, the Utilities essentially claim that the PUC proposals that varied significantly from the one [the City] made in its petition legislature”; and (2) deprived the Utilities “of [their] due process right to address the City’s petition. reject the Utilities’ assertion that the PUC failed to be impartial when deciding See id. at 492-93; Petition of Betty Sprague, 132 N.H. at 266. Accordingly, we rebut the presumption that the PUC was a fair and impartial decision-maker. state constitutional procedural due process rights. imposed conditions, as RSA 38:11 expressly allows it to do, is not sufficient to sufficient evidence to rebut this presumption. Id. The fact that the PUC N.H. 484, 492 (1995). The burden is upon the party alleging bias to present conscience and capable of reaching a just and fair result. Appeal of Dell, 140 officials who serve in an adjudicatory capacity are presumed to be of impartial tribunal is an essential element of a fair hearing.”). Administrative 934, 939 (1982); see Petition of Betty Sprague, 132 N.H. 250, 266 (1989) (“An hearing before a fair and impartial decision-maker. adjudicate the proposal before it” and “[i]nstead, . . . performed as a super- Appeal of Beyer, 122 N.H. CONST. pt. I, art. 15; U.S. CONST. amend. XIV. Due process requires a the Utilities’ due process rights because it did not act impartially. See N.H. We interpret the Utilities’ first argument to assert that the PUC violated

because, by imposing them, the PUC deprived the Utilities of their federal and State v. Ball, 124 N.H. 226, 231-33 (1983).

judicial obligation to serve as a neutral arbiter of the public interest . . . and to rights to procedural due process because the PUC: (1) “exceeded its quasi- V, XIV; N.H. CONST. pt. I, art. 15. They contend that the PUC violated their

The Utilities next argue that the nine conditions are unconstitutional

or legal remedy. Nothing in the language of the conditions abrogates any existing administrative substantial weight in such bargaining.”

p. 16 (quotations omitted)); have been made to find the purchaser who will give the highest price for it”

constitutional right to an opportunity to be heard. 16 considerations that fairly might be brought forward and reasonably be given

“the price which the property will bring in a fair market, after reasonable efforts

in imposing the nine conditions, the PUC did not deprive the Utilities of their owner willing to sell and a purchaser desiring to buy, taking into account all

740, 742 (1985).

142, 146 (1957) (property must be taxed at its “full and true value,” which is (2003) (quotation omitted); cf. Public Service Co. v. New Hampton, 101 N.H.

the proposed solutions to them. Under these circumstances, we conclude that, State Constitution. that the Utilities had ample opportunity to be heard about the concerns and in all probability would have been arrived at by fair negotiations between an proposed by the City to address PUC staff concerns. The record demonstrates the Justices, 131 N.H. 504, 510 (1989). Fair market value is “the price which that the standard for “just compensation” is fair market value. See Opinion of See Pennichuck Corp., 152 N.H. at 731; RSA 38:9, I, III, :10. The parties agree compensation” or damages that the City would have to pay for PWW’s assets. does the State Constitution with respect to the right to a neutral decision- this proceeding, the PUC was required to determine the amount of “just with the Digsafe program. We next address whether the PUC erroneously valued PWW’s assets. In

D. Valuation

reach the same results under the Federal Constitution as we do under the 168-69 (1975); Goldberg v. Kelly, 397 U.S. 254, 267 (1970). Accordingly, we the Digsafe program. Indeed, most of the nine conditions were specifically Society for Protection of N.H. Forests v. Site Evaluation Comm., 115 N.H. 163, 421 U.S. 35, 46-47 (1975), and the right to an opportunity to be heard, see see Appeal of Grimm, 141 N.H. 719, 720-22 (1997); Withrow v. Larkin,

The Federal Constitution offers the Utilities no greater protection than raised by PUC staff, related to whether the City would commit to complying that this contractor handle all customer inquiries. Another concern, also functions and required it to amend its contract with its contractor to provide

concern, the PUC imposed a condition that required the City to participate in participate in the Dig Safe program for its water utility.” In light of this request from PUC staff, the City stated that it “will become a member of and

a condition that precluded the City from bifurcating its customer service employees and the City’s contractor. In light of this concern, the PUC imposed comparison.” p. 17 comparable properties, based on relevant, market-derived elements of

an indication of present value.”

describe each approach. adjustments to the sale prices (or unit prices, as appropriate) of the comparable sales approach, and capitalized earnings approach. We briefly

depreciation from total cost; and adding the estimated land value.” Appraisal for) the existing structure, including an entrepreneurial incentive; deducting Id. at 445. by estimating the current cost to construct a reproduction of (or replacement property’s capacity to generate future benefits and capitalizes the income into known as the income capitalization approach, “an appraiser analyzes a

Id. at 297. In the capitalized earnings approach, otherwise

appraised, identifying appropriate units of comparison, and making capitalized earnings, and reproduction cost less depreciation. valuing PWW’s assets: the reproduction cost less depreciation approach, similar properties that have recently been sold with the property being (rate base or net book), comparable sales, cost of alternative facilities, comparison approach derives value for the subject property “by comparing

The Appraisal of Real Estate 378 (13th ed. 2008). The sales

directive.” cost approach, “a value . . . is derived for the fee simple interest in a property In the reproduction cost less depreciation approach, also known as the

Experts for both the City and the Utilities considered three approaches to techniques in valuing public utility property: original cost less depreciation omitted). brackets omitted). “Rather, judgment is the touchstone.” Id. at 600 (quotation

Tennessee Gas Pipeline Co., 145 N.H. at 602 (quotation and

hands with a rigid fair market value formula in the absence of legislative this area.” Co., 117 N.H. at 638. “[W]e have . . . never attempted to tie the fact finder’s enumerated approaches are valid, but all also have weaknesses. Public Serv. weight to any one of the approaches listed.” market value on the property of a regulated utility.” Id. (quotation omitted). All of the relevant factors must be considered, but a trier of fact need not allocate specific

The trier of fact may use any one or a combination of five appraisal

(2000).

Tennessee Gas Pipeline Co. v. Town of Hudson, 145 N.H. 598, 600

Because of this difficulty, “we give the trier of fact considerable deference in Ashland, 117 N.H. 635, 638 (1977); see Public Service Co., 101 N.H. at 146.

have previously recognized “the extraordinary difficulties in placing a fair Merrimack Condo. Assoc. v. Town of Merrimack, 139 N.H. 253, 255 (1994). We “Determination of fair market value is an issue of fact . . . .” Society Hill at Ltd. v. City of Keene, 122 N.H. 284, 285 (1982) (quotation omitted). snipe hunt carried on at midnight on a moonless landscape.” 590 Realty Co. “[T]he search for fair market value is not an easy one, and is akin to a must be given full effect.”

p. 18 here, their influence on valuation as part of the population of willing buyers profit buyers, that is more than one such buyer, to buy PWW, which is the case point. The PUC concluded “that so long as it is legally permissible for not-for-

PWW. The PUC found the testimony of the Utilities’ experts persuasive on this

the market, while the Utilities’ experts assumed that they would. its discounted cash flow analysis. which the City’s experts relied were not, in fact, comparable.

City’s experts assumed that a buyer would be a privately-owned entity like worth $210,349,285 as of December 31, 2008. Utilities’ experts assumed that a buyer would be a not-for-profit entity, the regulated rate-of-return capitalization rate to compute value. Whereas the 18

the City’s experts assumed that the presence of these entities would not affect Utilities’ experts used a not-for-profit cash flow as the measure of earnings in limited market for regulated utilities like PWW, and finding that the sales upon

property. Ultimately, under this approach, the PUC valued PWW’s assets to be used by the Utilities’ experts to value PWW’s land and certain intangible By contrast, the City’s experts used PWW’s own regulated income stream and credible than its use by the City’s experts. Thus, the PUC accepted the figures

potential hypothetical buyers when using the capitalized earnings approach, experts for both sides included not-for-profit entities within their pool of estimates for earnings and capitalization rates, the PUC observed that the 60% and the capitalized earnings approach 40%. Additionally, while the sales approach, ruling that this approach is of marginal usefulness given the

municipal financing, property tax savings, and relief from regulatory expense. PUC found that the use of this approach by the Utilities’ experts was more profit cost advantages, such as income tax savings, access to low-cost statements and then made adjustments to them to account for certain not-for-

With respect to the capitalized earnings approach, which focuses upon Utilities’ experts weighted the reproduction cost less depreciation approach them. Like the Utilities’ experts, the PUC gave no weight to the comparable conclusive, and, instead, evaluated each approach and assigned weights to inherently included in it,” the PUC declined to treat one approach as

With respect to the reproduction cost less depreciation approach, the

comparable sales and capitalized earnings approaches equal weight; the weight to the comparable sales approach. The City’s experts gave the the reproduction cost less depreciation approach; the Utilities’ experts gave no 117 N.H. at 638, and requires adjustments to “overcome items of value not Recognizing that each approach has weaknesses, see Public Serv. Co.,

analyses, they weighted them differently. The City’s experts gave no weight to Although experts for the parties considered all three approaches in their proceedings.

p. 19 including that of the expert witnesses,” PUC proceedings the evidentiary standards we have adopted for trial making these arguments, the City and Merrimack Valley seek to impose upon PUC could have made its own assumptions because they were flawed. In

assets to be $203,031,079 as of December 31, 2008. and, with that weighting, calculated the overall fair market value of PWW’s 19 rate. experts. using a not-for-profit cash flow to estimate earnings and a 5% capitalization

accept or reject such portions of the evidence presented as [it] found proper,

and reports of the Utilities’ experts do not constitute evidence from which the

depreciation approach at 60% and the capitalized earnings approach at 40% PUC’s assumptions were based upon the testimony and reports of the Utilities’ hypothetical buyers of PWW and that the presence of these entities required standards do not apply to PUC proceedings. See Appeal of McKenney, 120

See RSA 516:29-a (2007); N.H. R. Ev. 702. These evidentiary

that conflicts in the evidence are to be resolved by the [trier of fact], who could

The City and Merrimack Valley mistakenly contend that the testimony

(1994).

Southern N.H. Water Co. v. Town of Hudson, 139 N.H. 139, 141 December 31, 2008. The PUC then weighted the reproduction cost less

assets was $169,974,131 as of December 31, 2005, and $192,053,771 as of N.H. 563, 570 (1997) (quotation and brackets omitted), and by the fact that the for the years 2006 to 2009, and determined that the final value of PWW’s that there could be more than one not-for-profit entity within the pool of Crown Paper Co. v. City of Berlin, 142 the capitalized earnings approach, asserting that the PUC erred by assuming Specifically, both the City and Merrimack Valley contest how the PUC applied 118 N.H. at 99. This argument “is readily dismissed by the common principle the PUC could have made them. See Legislative Utility Consumers’ Council, PUC’s assumptions are unreasonable because there is no evidence from which We first address the argument of the City and Merrimack Valley that the

deducted $826,099 to account for the present value of negative net cash flows

eventually convey PWW) challenge the PUC’s valuation of PWW’s assets. Both the City and Merrimack Valley (the entity to which the City may

used the Utilities’ base rate and the City’s 0% growth rate. growth. The PUC found that the Utilities’ growth rate was inflated, and, thus the City’s experts recommending a 7.2% rate from which 0% is deducted for

5%, which yielded an income valuation of $170,800,230. From this, it approach, the PUC divided earnings of $8,540,012 by a capitalization rate of To calculate the value of PWW’s assets under the capitalized earnings

experts recommending a 5% rate from which 2% is deducted for growth and The experts also disagreed about capitalization rates, with the Utilities’ the PUC noted, there was evidence that the City’s experts were specifically

p. 20 potential unregulated municipal buyer when valuing a water utility. entity. We have previously held, however, that it is error not to consider a purchaser would pay more than net book cost.” experts assumed that the eventual purchaser of PWW would be a for-profit

fact considerable deference in this area.” 20

have found (although it did not do so) that the City’s experts were biased. As

value. We have recognized, however, that “it is possible that a prospective advocated by the City’s experts was contrary to New Hampshire law. The City’s

so extraordinarily difficult and why this court has typically given the trier of

regulation on fair market value.” Additionally, there was evidence in the record from which the PUC could

145 N.H. at 602; see Public Service Co., 101 N.H. at 151.

flow, the City’s experts valued PWW essentially at its rate base or net book determination. The PUC could have reasonably determined that the approach Id. Moreover, by using PWW’s cash

unlikelihood of sale is, after all, the reason why valuation of public utilities is unlikely, we have held that it must be considered. Id. at 142. “The

purchaser in the capitalized earning approach “overestimates the effect of PUC Southern N.H. Water Co., 139 N.H. at 142. Failing to consider an unregulated

the PUC’s duty to resolve issues of fact and conflicts of opinion. earnings approach than the City’s experts. Once testimony is admitted, it is finding the Utilities’ experts more credible with respect to the capitalized Further, there was support in the record for the PUC’s credibility

uncontroverted evidence. See Brent v. Paquette, 132 N.H. 415, 418 (1989). decision-making an expertise and knowledge of the industries it regulates. Gas Pipeline Co., 145 N.H. at 602. The PUC was not required to believe even evidence as it found proper, including that of expert witnesses. See Tennessee See id. As the trier of fact, the PUC could accept or reject such portions of the evidence of any one witness or group of witnesses, including expert witnesses. McKenney, 120 N.H. at 81. The PUC is not compelled to accept the opinion

unreasonable or unlawful. admission in the PUC proceeding does not render its decision unjust, The City and Merrimack Valley essentially argue that the PUC erred by

Appeal of Public Serv. Co. of N.H., 122 N.H. 1062, 1075 (1982).

101-02. When deciding cases such as this one, the PUC must bring to its own experience and expertise. See New England Tel. & Tel. Co., 113 N.H. at upon the testimony and reports of the Utilities’ experts, but also relied upon its possibility that in making its assumptions, the PUC did not rely exclusively Further, the arguments of the City and Merrimack Valley ignore the

reports of the Utilities’ experts would have been inadmissible in a trial, their N.H. at 80-81; RSA 541:17. Even if we were to agree that the testimony and law, we uphold it. p. 21 valuation has support in the record and that it is not erroneous as a matter of

PWW’s assets was not fair market value. Having found that the PUC’s

assets. The PUC accepted the testimony of the Utilities’ expert that

district bid upon such a purchase at a time. legally erroneous, we disagree that the eventual value that the PUC gave to

Pittsfield Aqueduct customers from losing the synergies associated with PWW’s

RSA chapter 38 requires that only one municipality, town or regional water we conclude that this assumption was supported by the evidence and is not assumption has support in the record and is not legally erroneous. Because enhanced cash flow and a 5% capitalization rate. As previously discussed, this

required the City to create a fund to mitigate the harm to Pennichuck East and be purchased from the other plant and property of the owner,” the PUC damages, if any, caused by the severance of the plant and property proposed to regional water district from competing to purchase a public utility. Nothing in

purchaser of PWW would be a not-for-profit entity, thus requiring the use of an

approach to valuation.

pursuant to RSA 38:9, III, which obliges the PUC to “determine the amount of disagree that RSA chapter 38 precludes more than one municipality, town or entity within the pool of potential buyers of PWW violates RSA chapter 38. We contend that the assumption that there could be more than one not-for-profit and Merrimack Valley again fault the PUC for assuming that the likely instead, the investment value of PWW to the City. In this argument, the City under the capitalized earnings approach was not fair market value, but was,

than the Utilities’ experts with regard to their use of the capitalized earnings not compelled on the record before it to find the City’s experts more credible produced was close to this range. We conclude, therefore, that the PUC was of $40 million to compensate the customers of PWW’s affiliates. Acting Finally, we address whether the PUC erred by requiring a mitigation fund

that these assumptions were legally invalid. The City and Merrimack Valley E. Mitigation Fund

assumptions of the Utilities’ experts, the value the PUC gave to PWW’s assets

finance the purchase without raising rates, and that the valuation they

assumptions, we next address the arguments of the City and Merrimack Valley

The City and Merrimack Valley next argue that by adopting the

produce a valuation within a specific range, which would allow the City to the City’s experts promised the City, before they were engaged, that they would the City’s condemnation of PWW succeeded. Further, there was evidence that

Having concluded that there is evidence to support the PUC’s

There was evidence as well that the City’s experts stood to benefit financially if hired “to advocate that acquiring PWW’s assets was in the public interest.” p. 22 22

of PWW.

show that there is fund of this magnitude is unreasonable. Because the parties have failed to

East and Pittsfield Aqueduct from the rate increases related to the City’s taking

million annually. For its part, the City asserts that requiring it to establish a BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred.

testified that a fund of this size would insulate the customers of Pennichuck the $40 million mitigation fund. would be required to generate annual earnings of $3.4 million. The expert England, 158 N.H. at 695, we decline to overturn its findings with respect to deference we owe the PUC in such proceedings, the Utilities’ expert’s testimony that an initial fund investment of $40 million see Appeal of Verizon New see Legislative Utility Consumers’ Council, 118 N.H. at 99, and in light of the

The Utilities contend that a $40 million fund will not generate $3.4

in additional annual revenue if the City takes PWW. The PUC also accepted Pennichuck East and Pittsfield Aqueduct, combined, would need $3.4 million