SRBA Judge Eric Wildman on August 30 upheld a Department of Water Resources decision last fall (on October 18) imposing conditions on a water right permit, No. 01-7011, under the name of the Twin Falls Canal Company and North Side Canal Company.
The origins of the case date to 1977, when the companies filed for a water diversion right along the Snake River at Milner Dam. The water would be used for hydropower users, year-round. The department agreed, but imposed conditions:
? “Subject to all prior water rights.
? “Proof of construction of works and application of water to beneficial use shall be submitted on or before June 1, 1982.
? “Other: A measuring device of a type approved by the Director shall be permanently installed and maintained as part of the diverting works.”
The companies later asked for a significant extension of time to prove beneficial use: Another five years, to June 1, 1987. In February 1987, they asked for another extension. By that time, the Swan Falls settlement which led to the Snake River Basin Adjudication – which was ab out to commernce – had led to an upheaval in Idaho water law, not least water along the Snake River and used for hydropower.
The department and the canal companies began talks, and in April 1987 the department said it would place a subordination condition in their water right permit. It said: “The rights for the use of waster acquired under this permit shall be junior and subordinate to all other rights for the use of water, other than hydropower, within the state of Idaho that are initiated later in time than the priority of this permit and shall not give rise to any right or claim against any future rights for the use of water, other than hydropower, within the state of Idaho initiated later in time than the priority of this permit.”
The canal companies protested, saying their rights should not be subordinated in that way. They also asked for yet another extension on proving beneficial use, this one extending to November 1, 1993. A field examination held shortly before that deadline did result in a recommendation that the right be licensed for hydropower purposes.
The issue of the terms of the permit remained, however, as paper went back and forth between the agency and the companies. Finally, in October 2008, the department issued a permit with two key conditions, one involving subordination (as in the earlier case, to “all subsequent upstream beneficial depletionary uses” other than hydropower), the other specifying that the license would be reviewed again – that it would expire – in 2038.
The companies protested, saying the terms were more limiting than earlier conditions had been. Interim Director Gary Spackman considered the matter as an appeal, but upheld the conditions.
So did Wildman. He said that the department didn’t abuse or exceed its authority, and noted that “the Canal Companies did not acquire a veted right in water right 01-7011 prior to the time the license for that right was issued.”
There was some indication, however, that the department’s actions may have some limitation based on the particular conditions at play here. Wildman wrote that “this Court find that the Department had the authority pursuant to the plain language of Idaho Code 42-203B(6) to insert the Subordination Condition in the license for water right 01-7011. The language of that statute is specific to the licensing and subordination of hydropower watger rights, which is what we are dealing with here.”
Wildman upheld the October 2010 director’s ruling.