Idaho Power Co. v. Idaho Department of Water Resources
255 P.3d 1152
Idaho2011Background
- Idaho Power applied in 1975 for a 5000 cfs hydropower diversion at Brownlee Dam, permit 03-7018 issued January 29, 1976, with a subordination clause to upstream uses;
- Power provided proof of beneficial use by February 1, 1980;
- Department deferred licensure pending a field examination after confirming completion and beneficial use;
- Swan Falls controversy and broader Snake River Basin water rights litigation influenced statutory change;
- 1985 enactment of I.C. § 42-203B empowered the Department to subordinate hydropower rights and to limit a permit or license to a term of years;
- 2007 license issued with a term condition allowing post-issuance Director review, which Idaho Power protested as not in the original permit
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to add term condition to license post-permit | Power: authority limited to permits; | Department: authority to add term under §42-203B(6) and (7); | Department has authority to include term in license |
| Vesting of water right prior to statute | Power had vested rights before 1985; | Right vests only after license issuance under statute; | Right vests at license issuance; no retroactive impairment |
| Delay in issuing license | Delay prejudiced Power; license should have issued earlier by operation of law | Delay justified by Swan Falls controversy; no demonstrated prejudice | Delay not unlawful or prejudicial under the record |
| Need for a specific term of years in license | Department must specify a finite term | Authority to set term exists; exact duration not essential for review here | Issue declined; not properly raised or adequately supported on appeal |
| IDAPA 37.03.08.050.03 policy violation raised post-appeal | Department violated its own rule by adding term not in permit | Not raised below; record insufficient | Not addressed on appeal |
Key Cases Cited
- In re Hidden Springs Trout Ranch, Inc., 102 Idaho 623, 636 P.2d 745 (1981) (Idaho, 1981) (vested right timing under statutory adherence doctrine)
- Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983) (Idaho, 1983) (context of groundwater and water rights controversies)
- Fremont-Madison Irr. Dist. & Mitigation Group v. Idaho Ground Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301 (1996) (Idaho, 1996) (statutory method of appropriation; vesting framework)
- In re SRBA Case No. 39576 (Subcase No. 36-08099), Slip op., SRBA Ct. Jan. 11, 2000 (SRBA Court, 2000) (SRBA court: license issuance marks vesting of water rights)
- Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 307, 109 P.3d 161 (2005) (Idaho, 2005) (statutory interpretation and plain language principles)