Opinion No. 67
from the District Court of the Seventh Judicial District,
State of Idaho, Snake River Basin Adjudication. Hon. Eric J.
Wildman, District Judge.
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
Fletcher Law Office, Burley, for respondents American Falls
Irrigation District #2 and Minidoka Irrigation District.
BURDICK, Chief Justice.
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
City's application for 12261 was protested by the
Coalition. 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.
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.
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.
STANDARD OF REVIEW
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).
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
(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