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City of Blackfoot v. Spackman

Supreme Court of Idaho

June 20, 2017

THE CITY OF BLACKFOOT, Petitioner-Appellant,
v.
GARY SPACKMAN, in his capacity as Director of the Idaho Department of Water Resources, and THE IDAHO DEPARTMENT OF WATER RESOURCES, Respondent-Respondent on Appeal, and A&B IRRIGATION DISTRICT, BURLEY IRRIGATION DISTRICT, MILNER IRRIGATION DISTRICT, AMERICAN FALLS IRRIGATION DISTRICT #2, MINIDOKA IRRIGATION DISTRICT, NORTH SIDE CANAL COMPANY, TWIN FALLS CANAL COMPANY, Intervenors-Respondents. IN THE MATTER OF APPLICATION FOR PERMIT NO. 27-12261, In the name of the City of Blackfoot.

         2017 Opinion No. 67

         Appeal from the District Court of the Seventh Judicial District, State of Idaho, Snake River Basin Adjudication. Hon. Eric J. Wildman, District Judge.

         District court decision on water right, affirmed..

          Holden, Kidwell, Hahn & Crapo, PLLC, Blackfoot, for appellants. Robert L. Harris argued.

          Garrick L. Baxter, Idaho Department of Water Resources, Boise, argued for respondent Spackman.

          Barker, Rosholt & Simpson, LLP, Twin Falls, for respondents A & B Irrigation District, Burley Irrigation District, Milner Irrigation District, North Side Canal Company and Twin Falls Canal Company. Travis L. Thompson argued.

          Fletcher Law Office, Burley, for respondents American Falls Irrigation District #2 and Minidoka Irrigation District.

          BURDICK, Chief Justice.

         The Bingham County District Court affirmed a ruling by the Idaho Department of Water Resources (IDWR or Department) denying the City of Blackfoot's (City) application for a water right, Application for Permit No. 27-12261 (12261), to be offset by mitigation through another water right, Water Right No. 01-181C (181C). The district court ruled that the Department was correct in ruling that 181C could not be used for groundwater recharge without an approved transfer application and could not be used as mitigation for 12261 until such transfer was approved. The City appeals and we affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The City currently pumps water from the Blackfoot River and delivers it to irrigators east of I-15. Due to the cost of operating and maintaining the pump, the City filed 12261 to appropriate 9.71 cfs of groundwater. This groundwater, in place of the surface water from the Blackfoot River, would then be delivered to the irrigators east of I-15. To offset the injury resulting from the appropriation, the City wishes to use 1, 066 afa of mitigation credit resulting from seepage that occurs under 181C.

         Under its purpose of use element, 181C allows for five different uses: Irrigation Storage, Irrigation from Storage, Diversion to Storage, Recreation Storage, and Irrigation. This allows the City, during the irrigation season, to divert 2, 466.80 afa from the Snake River to fill a recreation reservoir in Jensen's Grove. Of that diversion, 1, 100 acre feet are allocated to remain in the reservoir for recreation storage, 980.9 acre feet seep into the aquifer, and 186 acre feet are lost to evaporation. At the end of the season, the remaining 1, 100 acre feet are left to seep into the aquifer. The other provisions element of 181C states that the use and diversion of water is subject to "additional conditions and limitations contained in a settlement agreement - IDWR transfer of water right, Transfer no. 72385, date June 2006 . . . ." (Settlement Agreement). The Settlement Agreement, among others things, states the City "must file the appropriate application for permit and/or transfer" if it wishes to use 181C for groundwater recharge or mitigation purposes. In its application for 12261, the City proposed using part of the seepage described in 181C as mitigation for 12261.[1]

         The City's application for 12261 was protested by the Coalition.[2] In its protest, the Coalition asserted that the City failed to establish that 12261 would not reduce the quantity of water under existing rights. After holding an administrative hearing, the hearing officer determined that that the proposed appropriation in 12261 was a consumptive use of water and, without mitigation, would reduce the quantity of water under existing rights. The hearing officer also concluded that 181C does not authorize the City to use the seepage described in 181C for recharge and therefore the City could not use 181C as mitigation for 12261. However, the hearing officer approved 12261 on the condition that the City successfully apply for a transfer to add recharge as an authorized purpose of use for 181C.

         The City filed exceptions to the hearing officer's rulings, challenging, among other things, the requirement that it needs to apply for a transfer to add recharge as a purpose of use before it can use 181C for mitigation. The Director of the Department (Director) reviewed the City's exceptions and agreed with the hearing officer that 181C does not authorize the City to use water for recharge and a transfer would be required to authorize such use. However, the Director disagreed with the hearing officer's grant of conditional approval and denied the application for 12261 without prejudice, suggesting the City could refile its application for 12261 in conjunction with a transfer application for 181C.

         Following the Director's order, the City filed a petition with the district court asserting that the Director's ruling was contrary to law. After permitting the Coalition to appear as intervenors, a hearing was held on the City's petition. The district court found the plain unambiguous language of 181C's purpose of use element does not authorize the City to use water for recharge and if the City wanted to use 181C as mitigation for 12261 it would have to file a transfer. The City appeals the district court's ruling.

         II. STANDARD OF REVIEW

         When reviewing the decision of a district court acting in its appellate capacity under the Idaho Administrative Procedure Act, " 'we review the decision of the district court to determine whether it correctly decided the issues presented to it.' However, we review the agency record independently of the district court's decision." Rangen, Inc. v. Idaho Dep't of Water Res., 160 Idaho 251, 255, 371 P.3d 305, 309 (2016) (quoting Clear Springs Foods v. Spackman, 150 Idaho 790, 797, 252 P.3d 71, 78 (2011)). Furthermore, "the agency's factual determinations are binding on the reviewing court, even when there is conflicting evidence before the agency, so long as the determinations are supported by substantial competent evidence in the record." Id. (quoting A & B Irrigation Dist. v. Idaho Dep't of Water Res., 153 Idaho 500, 505-06, 284 P.3d 225, 230-31 (2012)). We review questions of law de novo. Vickers v. Lowe, 150 Idaho 439, 442, 247 P.3d 666, 669 (2011).

         When the agency was required by the provisions of this chapter or by other provisions of law to issue an order, the court shall affirm the agency action unless the court finds that the agency's findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) not supported by substantial evidence on the record as a ...

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