A guide to the water charge (infrastructure) rules: Tier 2 requirements

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1 A guide to the water charge (infrastructure) rules: Tier 2 requirements June 2011

2 Australian Competition and Consumer Commission 23 Marcus Clarke Street, Canberra, Australian Capital Territory, 2601 Commonwealth of Australia 2011 This work is copyright. Apart from any use permitted by the Copyright Act 1968, no part may be reproduced without prior written permission from the Commonwealth available through the Australian Competition and Consumer Commission. Requests and inquiries concerning reproduction and rights should be addressed to the Director Publishing, Australian Competition and Consumer Commission, GPO Box 3131, Canberra ACT 2601 or by to ISBN information as required

3 Contents Abbreviations... i Glossary...ii 1 Introduction The three tiers of the WCIR The purpose of this guide Structure of this guide Summary of Tier 2 requirements Network service plan Key dates Scope Details and Format of a NSP Communicating changes to a NSP Providing a NSP to customers Penalties for non-compliance with NSP requirements Review of a NSP Scope Process for review Amending a NSP based on review Consultation requirements Key dates for a NCP Scope of a NCP Providing a NCP to customers Other consultation requirements Information statement Key dates Scope Appendix A - Some definitions A.1 Definition of a regulated charge under the WCIR A.2 Infrastructure services Appendix B Network service plan format and details Appendix C Network consultation paper format and details Appendix D Information statement format and details Contacts... 55

4 Abbreviations ACCC the Basin IS NCP NSP operator Australian Competition and Consumer Commission Murray Darling Basin information statement network consultation paper network service plan infrastructure operator WCIR Water Charge (Infrastructure) Rules 2010 i

5 Glossary This glossary endeavours to provide practical meanings of terms. Readers may need to consider the legal meaning of some terms under the Water Act 2007 (Cth) and obtain legal advice on these definitions, if required. administration expenditure capital expenditure All operating expenditure that is not operations expenditure or maintenance expenditure. This may include billing, customer enquiries, corporate support, board management, taxes (or payments under the taxation equivalent regime) and interest payments Includes expenditure on: new works renewals or replacements other expenditure that would otherwise be referred to as capital civil penalty infrastructure operator A court-ordered pecuniary penalty (sum of money) to be paid where a person has been found to contravene the WCIR. A person who owns or operates water service infrastructure for one or more of the following purposes: the storage of water the delivery of water the drainage of water for the purpose of providing a service to another person. infrastructure service maintenance expenditure managed water resources Access, or a service provided in relation to access to water service infrastructure and includes the storage, delivery, drainage and taking of water. Expenditure associated with asset maintenance and repair All water resources that are: Basin water resources water resources (not being Basin water resources) in a referring State, or part of a referring State, if ii

6 a law of the referring State provides that section 100B of the Act applies to the State, or that part of the State; and the regulations under the Act provide that section 100B of the Act applies to the State, or that part of the State. operating expenditure operation expenditure regulated charge water access entitlement Water Act water service infrastructure The sum of operation expenditure, maintenance expenditure and administration expenditure. Expenditure associated with rural water service delivery including activities such as water ordering, planning delivery, meter reading, pumping costs, monitoring and operating assets A charge to which the water infrastructure charge rules (section 91(1) (a) (b) and (d) of the Act) apply. A perpetual or ongoing entitlement, by or under a law of a state, to exclusive access to a share of the water resources of a water resource plan area. The Water Act 2007 (Cth). Infrastructure for the storage, delivery or drainage of water. iii

7 1 Introduction The Water Act 2007 (Cwlth) (the Water Act) creates new institutional and governance arrangements to address the sustainability and management of water resources in the Murray Darling Basin (MDB). Among other things, the Water Act gives the Minister for Sustainability, Environment, Water, Population and Communities (the minister) the role of making water charge rules. The Water Charge (Infrastructure) Rules 2010 (WCIR) are one subset of the water charge rules. The WCIR relate to water infrastructure fees and charges levied by bulk water and irrigation infrastructure operators infrastructure operators. The WCIR follow a three-tiered regulatory structure with more light-handed approaches under tier 1 and direct regulatory oversight of charges under tier 3. This guide is to help infrastructure operators develop and implement processes and practices necessary to comply with the tier 2 requirements of the WCIR. Tier 2 requirements can be found in Part 5 of the WCIR. Part 5 of the WCIR consists of rules 16 to The three tiers of the WCIR The three tiers of the WCIR apply to different operators depending on the ownership and size of each operator. Tier 1 rules require all infrastructure operators in the MDB to publish regulated water charges, with wider publication requirements applying to infrastructure operators that provide services in relation to more than 10 GL of water from managed water resources. Tier 1 rules also include non-discriminatory pricing requirements for member owned infrastructure operators. 1 Tier 2 rules require infrastructure operators to develop network service plans outlining the processes for determining charges, including approaches to asset management, every five years. Tier 2 rules apply to larger member owned infrastructure operators and medium-sized non-member owned infrastructure operators not captured under tier 3. Tier 3 rules address the potential misuse of market power and require larger non-member owned infrastructure operators to have their regulated water charges approved or determined by an independent economic regulator. 1 Non-discriminatory charging requirements include a distribution triggered price approval or determination process. 4

8 There are five different guides relevant to the WCIR. These are summarized in table 1 below and will be applicable to the different types of infrastructure operators captured under the tiers of the WCIR. These guides are available on the ACCC s website. 5

9 Table 1: Guides under the WCIR Type of operator Relevant Guide All infrastructure operators A guide to the water charge (infrastructure) rules: publishing and non-discriminatory charging requirements provides guidance on the publishing and non-discriminatory charging requirements under Tier 1 Member owned operators that pay a distribution to members and provide services in relation to more than 10 GL of water A guide to the water charge (infrastructure) rules: publishing and non-discriminatory charging requirements A guide to the water charge (infrastructure) rules: distribution triggered price approvals or determinations (Part 7 rules) provides guidance on the process and information requirements for approvals or determinations under Part 7 of the WCIR ACCC pricing principles for price approvals or determinations under the water charge (infrastructure) rule) provides guidance on technical pricing issues relevant to approvals or determinations under Parts 6 and 7 of the WCIR Member owned operators that provide services in relation to more than 125 GL of water and Non-member owned operators that provide services in relation to between 125 GL and 250 GL of water A guide to the water charge (infrastructure) rules: publishing and non-discriminatory charging requirements A guide to the water charge (infrastructure) rules Tier 2 requirements provides guidance on the processes for formulating and communicating network service plans under Part 5 of the WCIR Non-member owned operators that provide services in relation to more than 250 GL of water A guide to the water charge (infrastructure) rules: publishing and non-discriminatory charging requirements ACCC pricing principles for price approvals or determinations under the water charge (infrastructure) rules 1.2 The purpose of this guide This document fulfils the ACCC s commitment in its advice to the minister to provide infrastructure operators with guidelines to assist them with the implementation of and 6

10 compliance with the WCIR. 2 Specifically, this document addresses issues that relate to the application of the Tier 2 requirements under the WCIR by providing guidance on the detail that should be provided in network service plans, network consultation papers and information statements. This guide should be read in conjunction with the WCIR, 3 the explanatory statement accompanying these rules and the Australian Competition and Consumer Commission (ACCC) s final advice to the minister. 4 The ACCC encourages all parties affected by part 5 of the WCIR to follow this guide, both in the text and the spirit of the document. The information provided in this document is for guidance purposes only and does not constitute legal advice. If you remain in doubt about the application of any of the publication and nondiscriminatory charging requirements under the WCIR, you are encouraged to seek your own independent legal advice. This guide does not provide a guarantee against enforcement action. Enforcement issues where an organisation appears to be in breach of these or other relevant rules, will be considered by the ACCC on a case-by-case basis, taking into account all relevant circumstances. 1.3 Structure of this guide Chapter 2 briefly describes the Tier 2 requirements. Chapter 3 discusses the network service plan requirements. Chapter 4 discusses the independent review of the network service plan. Chapter 5 discusses the consultation requirements before the network service plan is completed. Chapter 6 discusses the information statement. Appendix A provides some key definitions. Appendix B outlines the recommended format and required details to be included in a network service plan. Appendix C outlines the recommended format and required details to be included in a network consultation paper. 2 ACCC, op. cit 3 WCIR are available at: A FC?OpenDocument 4 ACCC, Water infrastructure charge rules Advice to the Minister for Climate Change and Water,

11 Appendix D outlines the recommended format and required details to be included in a information statement. 8

12 2 Summary of Tier 2 requirements The overarching aim of the Tier 2 requirements in the WCIR is to ensure that customers of these operators are provided with information about estimated future charges over a forthcoming five year period and the expenditure plans and levels of service on which charges are expected to be based. The requirements also ensure that customers have the opportunity to provide feedback to the operator when infrastructure plans are developed, and are provided with information about actual charges where they are different to charges previously forecast. The Tier 2 requirements apply to: member owned infrastructure operators where the maximum volume of water from managed water resources in respect of which the operator provides infrastructure services relates to more than 125 GL of water access entitlements non-member owned infrastructure operators where the total maximum volume of water from managed water resources in respect of which the operator provides infrastructure services relates to more than 125GL but less than 250GL of water access entitlements. 5 and include the following requirements: Development of a network service plan At least once every five years, an infrastructure operator regulated under the Tier 2 requirements must develop a network service plan (NSP) that provides details of the operator s plans relating to its water service infrastructure over a forthcoming 5 year period. The NSP must contain: 6 details of the operator's plans for the levels of service it intends to provide for customers in each year of the 5 year period details of the operator's plans for works, other than minor works, for the maintenance, improvement, enhancement or expansion of the water service infrastructure in each year of the 5 year period estimates of capital and recurrent expenditure relating to the water service infrastructure in each year of the 5 year period and estimates of revenue, including revenue from regulated charges, required for that expenditure plans for the financing of capital and recurrent works during each year of the 5 year period 5 WCIR, rule 16 6 WCIR, rule 19 9

13 details of any grants or subsidies that have been or may be received or applied for, together with details of conditions to which grants or subsidies may be subject estimates of the regulated charges during each year of the 5 year period stated without an inflation factor but identifying the inflation index published by the Australian Bureau of Statistics that the operator will apply to those estimates during each year of the period. NSP requirements are discussed further in Chapter 3 and Appendix B. Review of a NSP Operators must submit a copy of their NSP to the ACCC who will provide it to a qualified engineer for comment and advice on the prudency and efficiency of the plan. 7 The ACCC will then provide any comment or advice from the engineer to the operator. Within 20 business days after receiving the comment or advice, the operator must give a copy to each of its customers. A NSP must be submitted to the ACCC no later than when the NSP is provided to customers. However, if operators wish to consider any of the engineer s findings for inclusion in the NSP, it is recommended the NSP is provided to the ACCC at least four months prior to providing a final version to customers. The review is discussed further in Chapter 4. Consultation prior to completing a NSP Prior to completing a NSP, infrastructure operators regulated under the Tier 2 requirements must provide to customers a network consultation paper (NCP). The NCP must include: options and alternatives for works, other than minor works, for the maintenance, improvement, enhancement or expansion of the operator's water service infrastructure options and alternatives for levels of service during the 5 year period estimates of capital and recurrent expenditure proposed in each year of the 5 year period for each option or alternative and, where appropriate, a suggested ranking in priority for implementation details of known or anticipated factors that are or may be relevant to the several options and alternatives, such as risks, compliance with requirements under applicable legislation relating to environmental, safety or construction matters and contractual obligations anticipated regulated charges during the 5 year period to which the plan relates 7 WCIR, rule 18 10

14 any relevant reports of consultant engineers or other experts identifying maintenance or other requirements of the water service infrastructure or options for meeting such requirements. Operators must also invite written comments on the NCP. When the NSP is completed, operators must provide to customers a summary of consultation undertaken in developing the NSP and an explanation of the decisions made by the operator in completing the NSP. Consultation requirements are discussed further in Chapter 5 and Appendix C. Information statement When providing customers with a current schedule of charges after the first network service plan has been prepared, Tier 2 operators must provide customers with an information statement that includes: 8 details of, and an explanation of the reasons for any adjustments made to the current regulated charges from charges estimated in the NSP updated information on revenue received from regulated charges, and estimated revenue from regulated charges an explanation of the reasons for any differences in regulated charges in respect of the same class of infrastructure service where covered by rule 10 of the WCIR. The information statement requirements are discussed further in Chapter 6 and Appendix D. 8 WCIR, rule 22 11

15 Figure 1 Tier 2 requirements Network consultation paper (NCP) What?: Presents options to customers on infrastructure plans over a forthcoming five year period. When?: Before NSP is completed. Must allow a two month period for submissions from customers. Provide copy of NCP to customers. The operator may invite customers to attend a meeting (with at least ten business days notice). Operator considers customer feedback Information statement (IS) Network service plan (NSP) Review of NSP What?: Explains why charges have changed from the NSP and the reasons for changes. When?: Each time charges change. What?: Presents infrastructure plans and estimated regulated charges for infrastructure over a five year period. When?: At least once every five years. First NSP for existing Part 5 operators to start by 1 July The operator may modify the NSP to address the advice. What?: Review of prudency and efficiency of NSP by a qualified engineer. When?: Operator must provide NSP to ACCC (who will provide the NSP to the engineer) no later than when NSP is provided to customers. Operator provides IS to customers when providing them with a schedule of charges. Operator provides a copy to customers at least one month before the NSP is to begin. Operator provides a copy to customers within twenty business days of receiving comment/advice. 12

16 3 Network service plan A network service plan (NSP) is intended to be the primary document for Tier 2 operators to communicate to customers their forecast regulated charges over a forthcoming five year period and the reasons why charges are expected to change over this period. In doing so, operators will need to provide all relevant details on regulated charges including: the major capital expenditure and maintenance items expected to affect charges over the period of the NSP the expected levels of service it intends to provide for customers over the period of the NSP the expected cost of providing infrastructure services how infrastructure services are financed the revenue required to provide infrastructure services how regulated charges are calculated. Operators should provide customers with information that enables them to draw the links between each of the above elements. In other words, based on the charges they are likely to pay over the period of the NSP, customers should be able to understand the revenue likely to be collected from these charges, how this revenue funds expenditure on infrastructure services over the period of the NSP and the factors that ultimately contribute to this expenditure. Figure 2 provides a general overview of how these different elements are linked. When providing the NSP to customers, operators must also provide to customers a summary of the submissions and comments received from customers in consultation, and an explanation of the decisions made by the operator in completing the NSP. The WCIR does not dictate to Tier 2 operators what investments they should make over the relevant five year period nor what fees and charges should be payable by customers. This is a decision to be made by operators. It is not intended that the NSP be overly voluminous. Details about future network plans only need to be provided in the NSP where they have the potential to significantly affect the regulated charges payable by customers. Minor changes to the network anticipated over the relevant five year period do not need to be presented in the NSP. 3.1 Key dates Period for first NSP Operators classified as a Tier 2 operator on 1 July 2011 must have their first NSP in place no later than 1 July A NSP refers to a five year period. 13

17 These requirements are likely to apply to five operators: Murrumbidgee Irrigation Ltd, Coleambally Irrigation Ltd, Murray Irrigation Ltd, SunWater and Central Irrigation Trust. Date for providing NSP to customers A completed NSP must be provided to customers at least one month before the NSP commences. Therefore if the NSP is to commence on 1 July 2012, a completed NSP must be provided to all customers by 1 June However, an operator may choose to update its NSP before being required to if they no longer intend to invest in some of the plans listed in the current NSP. To ensure that the NSP accurately communicates to customers the operator s future network maintenance and improvement plans, an operator may decide to issue a new NSP. 9 If the operator chooses to issue a new NSP, they would be required to undertake consultation (discussed in Chapter 4). Relevant dates for a new Tier 2 operator For operators that are not regulated under the Tier 2 requirements on 1 July 2011 but become so after this date, the operator must have a current NSP in place no later than 24 months after they first become a Tier 2 operator. Consistent with the provisions above, these operators must provide a NSP to customers at least one month prior to the date the NSP is scheduled to begin. 9 Note that an information statement is required if operators are to change charges from those anticipated in the NSP. As part of the information statement, operators are required to communicate the reasons that charges have changed. 14

18 Figure 2 The link between infrastructure services and regulated charges Infrastructure services provided by the operator What are the main infrastructure services? Outline the major infrastructure works and the maintenance program over the life of the NSP What are the expected levels of service? Expenditure on infrastructure services What are the main factors driving expenditure (e.g new infrastructure plans, changes in levels of service)? What is estimated opex and capex for all infrastructure services? For different types of infrastructure services? Required revenue for infrastructure services What is the required revenue to meet expenditure on all infrastructure services? How is the revenue required different between different infrastructure services Financing How are infrastructure services financed? How does the financing of infrastructure services relate to required revenue for infrastructure services? Revenue from regulated charges Grants and subsidies + + Other funding (customer contributions, sale of assets) Regulated charge A + Regulated charge B Regulated + charge C + Other regulated charges (etc.) 15

19 3.2 Scope Coverage of NSP A NSP must relate to the infrastructure services provided by the regulated operator in relation to managed water resources to which a regulated charge under the WCIR applies. 10 The definition of a regulated charge under the WCIR is provided in Appendix A.1. Where an infrastructure operator levies different regulated charges specific to a geographic area, it is not necessary for the operator to issue separate plans for separate geographic areas. One NSP may cover the regulated charges for all infrastructure services provided by the operator in relation to the Basin. For instance, an operator may manage several water supply schemes, or provide services across different valleys within the Basin. One NSP can cover all different schemes and valleys. Dealing with charges outside the scope of the NSP Where an operator provides services for which there is no regulated charge, the operator is not required to report this information. To ensure that customers receive the same information regardless of whether the charges they face are covered by the rules, the operator may wish to prepare an infrastructure plan that relates to these charges and the services on which they are based. The operator may wish to provide this information to customers at the same time and in the same format as the NSP. For instance, the operator may wish to prepare a five year plan that covers charges for infrastructure services it undertakes outside the Basin. Where an operator prepares plans for this purpose, the operator may include this information within the regulated NSP or prepare a separate document. If the operator includes information on details outside the scope of a regulated NSP, it is recommended the operator provide this information within a separate section of the NSP. 3.3 Details and Format of a NSP A NSP must include: the date on which the 5 year period of the NSP is to begin 10 The concept managed water resources accounts for the provision in section 100B of the Act where Basin jurisdictions may elect to make arrangements to apply the water WCIR outside the Basin (optin). A Basin jurisdiction may opt-in by passing legislation that extends the application of the water WCIR to its water resources that are not Basin water resources. At the time when this guide was drafted, no state has opted-in and only Basin water resources are managed water resources. 16

20 details of the operator's plans for the levels of service it intends to provide for customers in each year of the 5 year period details of the operator's plans for works, other than minor works, for the maintenance, improvement, enhancement or expansion of the water service infrastructure in each year of the 5 year period estimates of capital and recurrent expenditure relating to the water service infrastructure in each year of the 5 year period and estimates of revenue, including revenue from regulated charges, required for that expenditure plans for the financing of capital and recurrent works during each year of the 5 year period details of any grants or subsidies that have been or may be received or applied for, together with details of conditions to which grants or subsidies may be subject estimates of the regulated charges during each year of the 5 year period stated without an inflation factor but identifying the inflation index published by the Australian Bureau of Statistics that the operator will apply to those estimates during each year of the period. a summary of consultation undertaken prior to completing the plan, including submissions and comments received from customers, and an explanation of the decisions made by the operator in completing the plan. Appendix B outlines the ACCC s recommended format of a NSP and further elaborates on the details that should be included in a NSP. Addressing uncertainty An NSP will be based on an operator s forecast of the operating environment over the relevant five year period, providing customers with best estimates about regulated charges and the expenditure on which charges are based. There are a number of ways in which an operator can address uncertainty about the projects, expenditure and charges. This can be addressed both in the NSP and after the NSP is completed. For instance, while the operator is required to estimate a likely value for a regulated charge, in a NSP the operator could also specify the range of possible values which a charge might be. This may be beneficial where there is significant uncertainty around the cost base and/or the number of customers that the operator is likely to provide services in relation to in the future. Some projects or events may not be considered likely but the operator may still wish to inform customers that there is some possibility of these projects being implemented. For these projects or events the operator should not include the expenditure in the estimates of regulated charges, but can still provide details in the NSP of the projects, when it is possible they would be implemented and the possible impact on charges. 17

21 After the NSP has been completed, when charges change from the charges estimated in the NSP, operators will also have the opportunity to explain these changes via the information statement. 11 Suitability of other documents Some operators may already produce documents that outline details about forthcoming investments. These could be produced to meet other regulatory requirements, or for the benefit of customers. While these documents may partly provide detail required by NSPs, it is unlikely they would satisfactorily meet all requirements of the Tier 2 requirements of the WCIR. Where material produced for other documents is relevant for the NSP, the material should be modified accordingly for the purpose and audience of the NSP before including it within the NSP. Addressing confidential information As noted above, information provided in the NSP is intended to provide customers with sufficient information to understand the charges they are likely to face over a five year period of the NSP, and the costs on which these charges are based. This is intended to improve pricing transparency for customers. Appendix B details the information an operator should provide in a NSP. The expenditure data to be provided in the NSP is either across the whole of the operator s network, at a regional level, or forecast expenditure across the life of major projects. Detail is, in general, required at an aggregated level. It should also be noted that expenditure data provided in the NSP is forecast data and is subject to change during the period to which the NSP relates. Forecasts do not lock the operator into carrying out this expenditure. For these reasons, it is difficult to foresee that information required by the NSP would be considered confidential. 3.4 Communicating changes to a NSP An operator may amend a NSP in any way before it has been provided to customers. If a NSP has already been provided to customers, an operator can amend a NSP after it has been provided to customers (without having to undertake a new consultation process) but only if the amendments are to address the comment or advice from the engineer (the engineer s review is discussed in Chapter 4). 11 Information statement requirements are explained in Chapter 6 and Appendix D. 18

22 If an operator amends a NSP for this purpose and current charges change the operator would also be required to issue an information statement explaining why those charges have changed (the information statement is discussed in chapter 5). If the NSP has been provided to customers, amendments made for this purpose would not change the start date of the NSP. Alternatively, an operator could choose to issue a new NSP. However, if issuing a new NSP the operator will be required to undergo the consultation process explained in Chapter Providing a NSP to customers The WCIR are not prescriptive on how infrastructure operators must give the NSP to customers. Operators have the discretion to use alternative communication methods available to them, including: postal mail electronic mail sent as: a fax or an with the NSP in an attachment or with a hyperlink to a webpage that contains the NSP. Infrastructure operators must ensure that all customers receive the NSP in accordance with the WCIR. It is the operator s responsibility to ensure that each and every customer is provided with the NSP. An operator may provide customers with different options for receiving the NSP. General information provided to customers that the NSP is available on a website, without a hyperlink to a webpage that contains the NSP, will not satisfy the obligation on operators to provide the NSP to each customer. 3.6 Penalties for non-compliance with NSP requirements On or after the relevant date, a Tier 2 operator must not levy a regulated charge unless the operator has provided to its customers the relevant NSP and information statement. 12 A Tier 2 operator must not provide customers with a copy of its regulated charges or publish a schedule of those charges unless the operator has provided its customers with the relevant NSP and information statement in accordance with these rules. 13 Tier 2 operators risk a penalty of up to $110,000 for each breach of the above rules. 12 The relevant date for existing Part 5 operators is 1 July 2011, and for new Part 5 operators is 24 months after they became a Part 5 operator. 13 WCIR, rule 17 19

23 20

24 4 Review of a NSP The WCIR require Tier 2 operators to submit a completed NSP to the ACCC for review by a qualified engineer. The ACCC will choose the engineer and pay for the review. Every customer of a Tier 2 operator must be provided with a copy of the engineer s comment or advice. 4.1 Scope The engineer is required to provide advice on the prudency and efficiency of the NSP. In general, in advising on the prudency and efficiency of the NSP, the reviewer will be asked to consider whether the NSP represents a plan that would be expected of a commercially successful water infrastructure service provider in the same position, and whether the operator is able to cost-effectively deliver these services. In undertaking this analysis, it is likely the reviewer will be asked to provide comment and advice on the following matters: the reasons and evidence supporting the commencement of major projects proposed in the period of the NSP, including whether the projects listed are consistent with efficient long term expenditure on infrastructure services. the reasons and evidence supporting the major projects proposed in the NSP compared to other alternative projects the suitability of the engineering design of the projects proposed the robustness of the risk mitigation measures in the NSP whether the time proposed to undertake the projects in the NSP is reasonable, having regard to the operator s previous ability to deliver projects on time the accuracy of cost forecasts used in estimating the cost of projects in the NSP whether the operating expenditure forecasts in the NSP are reasonable, having regard to: historical expenditure on operating expenditure a reasonable expectation of productivity improvements over the period of the NSP available and relevant industry benchmarks of expenditure on infrastructure services. whether the NSP provides sufficient details and is communicated in a way that would be clear to a customer audience. 21

25 Where the reviewer is not satisfied with any matter in the NSP the reviewer will be asked to make recommendations on how the operator should address these matters. The reviewer will be contracted to prepare a technical report along with a summary report that contains their main findings and recommendations to assist with communication with customers. The reviewer will be required to meet with each infrastructure operator. The ACCC will co-ordinate with the operator to arrange suitable dates. 4.2 Process for review There are several stages in the review. This is outlined below and in Figure 2. Choosing the reviewer The ACCC will choose the engineer to undertake the review. This will be done in accordance with the ACCC s internal selection procedures. The ACCC will not select an engineer where there is potential for a conflict of interest to impact on the outcomes of the project. For instance the ACCC will not choose a reviewer where they have provided advice on that operator s NSP. Providing a NSP to the ACCC An operator must give a copy of a NSP to the ACCC no later than the date on which the operator provides copies of the plan to its customers. However, the operator may wish to consider the advice from the engineer first before providing the NSP to customers. To ensure the engineer has sufficient time to complete the review and the operator has sufficient time to consider the engineer s findings, it is strongly recommended that operators allow at least four months between when the NSP is provided to the ACCC and when the NSP is provided to customers. This assumes that the engineer will need up to three months to complete their review, and the operator will need at least one month to consider the engineer s findings after they have been provided with a final report. Therefore, if operators plan to give a NSP to customers on 1 June 2012 that incorporates any relevant findings of the comment or advice from the engineer, the operator should give a NSP to the ACCC by 1 February After the ACCC provides the NSP to the ACCC, the ACCC will provide it to the engineer. Preparing the review At the commencement of the review, the reviewer will be provided with a copy of the NSP. Soon after, the reviewer will be required to meet with the Tier 2 operator. It is expected that in this meeting the operator will have an opportunity to provide further background about its operating environment, its infrastructure and the detail in its NSP. 22

26 The reviewer will have an opportunity to ask questions about the detail in the NSP and may request further information to help support their review. It is noted that all consultants working on a NSP review will be required to sign a confidentiality agreement with the ACCC. Draft review A draft review will be provided to both the ACCC and the Tier 2 operator for comment. All parties will have at least ten business days to provide comment. Final review After considering comment from both the ACCC and the Tier 2 operator, the reviewer will provide a final report to the ACCC. It is expected that the reviewer s final report will be completed within three months. However this is dependent on the operator providing timely input to the review where requested. Tardy responses from the operator in providing information could delay the completion of the review. Providing the review to customers The ACCC must give the Tier 2 operator a copy of any comment or advice received from the engineer. The operator must, within 20 business days after receiving a copy of any comment and advice from the engineer, provide the comment and advice to customers. This is to include the full report and the summary version. Consistent with the form in which the NSP is to be provided to customers, operators may either provide the comment and advice directly to customers via mail, , fax or post the comment or advice on the operator s website and notify each customer personally via mail or of where the comment/advice can be located on the operator s website. Providing customers with general information that the review is available on the operator s website will not satisfy the obligation on operators to provide the review to each customer. When providing the review to customers the operator may wish to outline its response to the engineer s comment or advice. If the operator is yet to decide on a response, it may wish to outline the areas in which it is giving further consideration to, as well as the process and timeline for further considering the engineer s recommendations. 23

27 Using a NSP and review for other purposes Operators should be aware that information obtained by the ACCC may be used for other purposes. A copy of the ACCC s information policy is available online Australian Competition and Consumer Commission, Australian Energy Regulator Information Policy, the collection use and disclosure of information, 24

28 Figure 2 Process for review 1. ACCC selects engineer 2. Tier 2 operator completes NSP Tier 2 operator provides completed NSP to ACCC ACCC provides NSP to engineer. 3. Engineer prepares review In preparing review, engineer meets with operator to understand business context, NSP, other relevant details Operator makes available other relevant documents on request. 4. Engineer completes draft review Up to three months to complete. Review provided to ACCC and Tier 2 operator in question Minimum of ten business days for the operator provide comment 5. Engineer completes final review Review provided to ACCC ACCC provides review to Tier 2 operators 6. Tier 2 operator provides review to customers Provide within twenty business days May amend NSP to reflect engineer s advice 25

29 4.3 Amending a NSP based on review Process for amending NSP As discussed in section 3.4, a Tier 2 operator may amend or vary its NSP to the extent appropriate to give effect to any comment or advice by the engineer. It is the operator s choice how it wishes to consider the comment or advice from the engineer. Where the engineer suggests material changes to the NSP, and the operator wishes to consider these changes in further detail, it is recommended that the operator re-consults with relevant customers. Start date for amended NSP If customers have already been provided with a copy of a NSP before the operator chooses to amend it, then this would not alter the start date for the NSP. In other words, the start date of the NSP is the date specified in the version of the NSP that was first provided to customers. 26

30 5 Consultation requirements As the NSP is intended to be the primary document for Tier 2 operators to communicate their regulated charges over a five year period and the infrastructure plans on which these charges are based, it is important that there is an opportunity for customers to provide input before the NSP is finalised. The network consultation paper (NCP) is the platform for presenting options to customers for investing in the network before the NSP is finalised. Customers will have the opportunity to provide feedback on these options as well as to make suggestions for additional options or alternatives before the NSP is completed. The NCP should clearly explain each option or alternative, how each option is estimated to impact on expenditure on infrastructure services over the period of the NSP and the estimated impact on charges and levels of services. 5.1 Key dates for a NCP Operators must provide the NCP to customers, along with an invitation for written comment on the NCP including suggestions for additional options or alternatives and preferred options and alternatives. The written period must be open for at least two months from when the NCP is provided to customers. 5.2 Scope of a NCP Details The NCP requirements include: the proposed commencement date of the NSP options and alternatives for works, other than minor works, for the maintenance, improvement, enhancement or expansion of the operator's water service infrastructure and levels of service during the 5 year period estimates of capital and recurrent expenditure proposed in each year of the 5 year period for each option or alternative and, where appropriate, a suggested ranking in priority for implementation details of known or anticipated factors that are or may be relevant to the several options and alternatives, such as risks, compliance with requirements under applicable legislation relating to environmental, safety or construction matters and contractual obligations anticipated regulated charges during the 5 year period to which the plan relates; and 27

31 any relevant reports or advice from consultant engineers or other experts identifying maintenance or other requirements of the water service infrastructure or options for meeting such requirements. Appendix C outlines the ACCC s recommended format of a NCP and further elaborates on the details to be included in a NCP to assist Tier 2 operators in meeting the above requirements. Options and alternatives An option or alternative might refer to: new major maintenance, improvement, enhancement or expansion plans; or no major maintenance, improvement, enhancement or expansion plans (i.e. status quo) options for service levels or performance against service levels. The ACCC expects that new maintenance, improvement, enhancement or expansion plans only need to be provided in the NCP where choosing that plan has the potential to significantly affect regulated charges and/or levels of services. Minor proposed changes to the network under consideration do not need to be presented to customers. The operator should also consider consulting with customers where it is proposing new types of service levels, or where it is proposing a change in the performance target for the service level from a target set in previous years. 5.3 Providing a NCP to customers Operators have the discretion to use alternative communication methods available to them when providing a NCP to customers. Options include: postal mail electronic mail sent as: a fax or an with the NCP in an attachment or with a hyperlink to a webpage that contains the NCP. General information provided to customers that the NCP is available on a website, without a hyperlink to a webpage that contains the NCP, will not satisfy the obligation on operators to provide the NCP to each customer. Customers must have at least two months to prepare a written submission on the NCP. 28

32 5.4 Other consultation requirements The operator may also invite customers to attend a meeting with the operator at which comments on the paper may be made. The operator must give at least 10 business days notice for such a meeting. Other consultation is up to the discretion of the operator. 29

33 6 Information statement When providing customers with a copy of its schedule of charges after the first network service plan has been provided to customers, Tier 2 operators must also provide customers with an information statement explaining where charges have changed from the NSP, the reasons why these changes have occurred and why they needed to be addressed through changes to charges. This will ensure that customers remain informed about developments influencing regulated charges across the period of the NSP. The information statement also requires actual revenue information for the completed years of the NSP. This will ensure that even after customers have paid their regulated charges, they are provided with relevant information if circumstances change after charges have been levied. For instance, changes in weather conditions during an irrigation season may lead to greater or less revenue collected from a charge than anticipated when the charge was levied. 6.1 Key dates An information statement must be provided to customers after a NSP has been provided to customers when providing them with a copy of its schedule of charges. In accordance with dates specified in section 3.1, the first NSP must be provided to customers by 1 June The first schedule of charges provided to customers after this date will most likely be a schedule specifying fees and charges for the 2012/13 irrigation season. The information statement must be provided with this schedule. The ACCC publication A guide to the water charge (infrastructure) rules: publishing and non-discriminatory charging requirements explains when a schedule of charges must be provided to customers and what it must include. Subsequent information statements must be provided to customers any time regulated charges change after this date. 6.2 Scope The information statement must include: details of, and an explanation of the reasons for, any adjustments made to the regulated charges in respect of that year as estimated in the network service plan, whether on account of unforeseen circumstances and events or changes in estimated costs, financing, grants or subsidies a statement of the anticipated revenue from regulated charges in respect of the current year of the period and each future year of the period a statement of the actual revenue received from regulated charges in respect of each completed year of the network service plan 30

34 an explanation of the reasons for different regulated charges determined in accordance with rule 10 in respect of each completed year of the network service plan. The ACCC s preferred format and preferred details to be included when addressing these requirements are provided in Appendix D. 31

35 Appendix A - Some definitions A.1 Definition of a regulated charge under the WCIR A regulated charge is a water charge levied by an infrastructure operator for an infrastructure service provided in relation to managed water resources. Regulated water charges covered by the infrastructure rules include: 15 charges payable to an irrigation infrastructure operator for: access to the operator s irrigation network (or services provided in relation to that access) changing access to the operator s irrigation network (or services in relation to that access) bulk water charges being charged for bulk water services including charges imposed on private diverters charges payable to water infrastructure operators that have been prescribed by the regulations for: 16 access to water service infrastructure or services provided in relation to that access changing access to water service infrastructure or services provided in relation to that access, including charges payable to a bulk water supplier for changing access to a bulk water service terminating access to water service infrastructure or services provided in relation to that access, including charges payable to a bulk water supplier for terminating access to a bulk water service surrendering to the operator a right to delivery of water through the operator's water services infrastructure. Water charges not regulated by the WCIR Water charges that are not regulated by the WCIR include: termination fees levied by irrigation infrastructure operators - these are dealt with in the Water Charge (Termination Fees) Rules 2009 charges authorised under the Water Market Rules 2009 in relation to transformation of irrigation rights 15 The Act, s91 (1)(a), (b) or (d) 16 See the Water Amendment Regulations 2009 (No.1) for the types of charges that have been prescribed for the purposes of s 91(1)(d) of the Act. 32

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