Reversing a district court – not SRBA Court – decision, the Idaho Supreme Court on May 26 said that the Idaho Department of Water Resources has authority under Idaho law to impose term conditions on Idaho Power Company water licenses even if the permit didn’t include the condition.
The case, Idaho Power Company v. Idaho Department of Water Resources, concerned right 03-7018, at the Brownlee Dam on the Snake River. It was decided originally by 3rd District Judge Susan Weibe.
The case stemmed from the company’s application in December 1975 for a hydropower right at Brown (at Washington County). The department approved it the next month, and said the water had to be applied to beneficial uses by February 1980. Idaho Power eventually asked for an extension on that, but said in August 1980 that the beneficial use was underway.
During that same period, the legal wrangling that led to the Swan Falls decision early in the 80s – and implicated water rights across much of the Snake River basin – was underway. The Supreme Court recalled, “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. 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. 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. On appeal, this Court reversed the district court’s holding in that regard, and remanded the case for further proceedings.” Much of that activity growing out of Swan Falls changed the legal and water landscape of the region.
Then, the Supreme Court noted, “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. 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 subsequently filed a protest and petition for hearing, objecting to the inclusion of the term condition in the license. Idaho Power argued that because the condition was not included in the water right permit, the term condition was unlawful.”
Idaho Power later pulled its protest but did ask for a judicial review, saying the department didn’t have authority to insert a new term condition in the license.
The Supreme Court said flatly that the department had the authority:
“In this case, the statute is unambiguous, and it is unnecessary for this Court to engage in statutory construction because the plain language of I.C. § 42-203B gives the Department the authority to include a term condition in either a permit or a license. As mentioned above, I.C. §42-203B(6) provides, ”The director shall also have the authority to limit a permit or license for power purposes to a specific term. ” I.C. § 42-203B(6) (emphasis added). The Legislature’s use of the disjunctive “or” specifically gives the Department the authority to include a term condition at the licensing stage, not just at the permitting stage as Idaho Power contends. Furthermore, it is important to note that the statute specifically states, “[s]ubsection (6) . . . shall not apply to licenses which have already been issued as of the effective date [July 1, 1985] of this act.” I.C. § 42-203B(6). In other words, the Legislature included a grandfather provision in the statute that prohibits the Department from adding a term condition in any license issued prior to the statute’s enactment. Importantly, the Legislature did not include any provision limiting the Department’s authority to insert a term condition in a license, such as Idaho Power’s, that is issued after the statute was enacted.”
In a related point, the court said, “it appears that Idaho Power is arguing that it obtained a vested water right akin to a license prior to the effective date of the statute, and because the statute specifically prohibits the Department from including term conditions in licenses issued prior to the statute’s enactment, the Department lacked the authority to include the term condition in Idaho Power’s license. On the other hand, the Department argues that Idaho Power did not have a vested right in the water until it received the license from the Department.”
[see the SRBA Digest for more.]