03-7018 in the Name of Idaho Power Co. v. Idaho Dep't of Water Res. (In re Licensed Water Right No.)
Citation | 255 P.3d 1152,151 Idaho 266 |
Decision Date | 26 May 2011 |
Docket Number | No. 37348.,37348. |
Court | United States State Supreme Court of Idaho |
Parties | In the Matter of Licensed Water Right No. 03–7018 in the Name of Idaho Power Company. IDAHO POWER COMPANY, Petitioner–Respondent, v. IDAHO DEPARTMENT OF WATER RESOURCES, Respondent–Appellant. |
Honorable Lawrence G. Wasden, Attorney General, Boise, for appellant. Garrick L. Baxter argued.
Barker Rosholt & Simpson, LLP, and James C. Tucker, Boise, for respondent. Shelley M. Davis argued.
The Idaho Department of Water Resources (Department) appeals an order of the district court requiring the Department to strike a term condition from a hydropower water right license issued to Idaho Power Company. We reverse.
On December 24, 1975, Idaho Power Company filed an application with the Department for a permit to divert and use 5000 cfs of water for hydropower generation purposes at its Brownlee Dam facility.1 The Department approved the application on January 29, 1976, and issued permit no. 03–7018. The permit required Idaho Power to submit proof that the project had been completed and the water had been applied to beneficial use by February 1, 1980. The permit also contained a subordination condition stating that, "[t]he rights for the use of the waters under this permit shall be subordinate to and not prevent or interfere with any future upstream diversion and use of the waters of the Snake River and its tributaries for the irrigation of lands or other consumptive beneficial uses in the Snake River watershed." The permit did not include a condition limiting the water right to a term of years.
Idaho Power subsequently applied for, and was granted, an extension of time to provide proof of beneficial use.2 On August 7, 1980, Idaho Power submitted proof that the project was complete and the water had been applied to beneficial use. The Department acknowledged it had received Idaho Power's submission of proof of beneficial use by responding with a letter indicating that the Department was required to conduct a field examination prior to issuing a license.
During the time that Idaho Power was applying for, and attempting to obtain, this water right at Brownlee Dam, both Idaho Power and the Department were involved in a controversy surrounding water rights in the Snake River Basin. See Idaho Power Co. v. State, 104 Idaho 575, 580–83, 661 P.2d 741, 746–49 (1983). In part, this controversy was the result of two decades of increased groundwater pumping by other water users upstream of the Swan Falls Dam, which decreased the water flow at the dam.
Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 794–95, 252 P.3d 71, 75–76 (2011). As a result, Idaho Power filed a lawsuit against the State and various water users, seeking a determination of the validity of its water rights at the Swam Falls Dam and seeking a ruling that its water rights were not subject to future upstream depletion. Id. One of the other issues in the case brought by Idaho Power involved a subordination clause in the federal license that Idaho Power had obtained for its Hells Canyon Project. Id. The district court held that the subordination clause in the federal license applied to all of Idaho Power's water rights used for hydropower purposes at all of its facilities on the Snake River watershed, including its facilities at Swan Falls. Id. On appeal, this Court reversed the district court's holding in that regard, and remanded the case for further proceedings. Id. Idaho Power responded by filing a second lawsuit against the State of Idaho and approximately 7500 people who claimed water rights in the Snake River Basin. In re Snake River Basin Water System, 115 Idaho 1, 3, 764 P.2d 78, 80 (1988).
I.C. § 42–203B(6) (emphasis added).
I.C. § 42–203B(7) (emphasis added).
After the enactment of I.C. § 42–203B, the Department conducted a beneficial use examination with respect to the permit. On September 8, 1985, the Department submitted a beneficial use field report confirming that the project had been completed and recommending licensure. On November 16, 2007, the Department issued a preliminary order approving a license for water right no. 03–7018. The license contained the following term condition:
The diversion and use of water for hydropower purposes under this license is subject to review by the Director after the date of expiration of the Federal Energy Regulatory Commission license for Brownlee Dam.3 Upon appropriate findings relative to the interest of the public, the Director may cancel all or any part of the use authorized herein and may revise, delete or add conditions under which the right may be exercised.
This term condition was not included in the original permit.
Idaho Power later withdrew its protest and petition for hearing, and the Department issued an order designating license no. 03–7018 a final order. In its order, the Department articulated the legal basis for including the term condition in the license. Specifically, the Department determined that the plain language of I.C. § 42–203B gives the Department the authority to insert a term condition in a permit or a license. The Department also concluded that Idaho Power did not have a vested water right prior to obtaining the license because a permit is merely an inchoate right that only ripens into a vested right upon obtaining a license and, therefore, including a term condition in the license did not interfere with a vested right.
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