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Home My WebLink About20180718Reply to Motion in Opposition.pdfSTATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL LAWRENCE G. WASDEN ftficIryE0 f$l$ -jijl f B fiit ll: SZ '., '...: ', -'_-t-ri i-,'. .,ri, i:,lSSl0fi July 18,2018 Transmitted Via Hand Delivery and E-mail Diane Hanian, Commission Secretary Idaho Public Utilities Commission 472W. Washington St. Boise,Idaho 83702 diane. hoIt@puc. idaha.gav Re: Case Nos. AVU-E-17-09 and AVU-G-17-05 Dear Ms. Hanian, Enclosed for filing with the Commission is the original andT copies of Reply to Motion in Opposition to IDWR's Petition to Intervene. Please contact me if you have any questions. Sincerely, AK Deputy Attorney General Natural Resources Division - Water Resources Section P.O. Box 83720 Boise, ldaho 83720-0098 Telephone: (2081 287 - 4801, Legal FAX: (2O8') 287 -67 00 Enclosures IlECEIVED itl$ JUL I I Ail il; SZ ];1 [JUSLIC l: C0l,{Ml$SlOltl I rtrLAWRENCE G. WASDEN ATTORNEY GENERAL DARRELL G. EARLY Deputy Attomey General Chiel Natural Resources Division GARRTCK L. BAXTER,ISB #6301 EMMI BLADES,ISB # #8682 Deputy Attorneys General Idaho Department of Water Resources P.O. Box 83720 Boise, Idaho 83720-0098 Telephone: (208) 287 -4800 Facsimile: (208) 287-6700 cqriek.idaho.sov emmi.blades@ idwr. idaho. gov Attorneys for the ldaho Department of Water Resources IN THE MATTER OF THE JOINT APPLICATION OF HYDRO ONE LIMITED AND AVISTA CORPORATION FOR APPROVAL OF MERGER AGREEMENT BEFORE THE IDAHO PUBLIC UTILITY COMMISSION CASE NOS. AVU-E-I7-09 AVU-G-17-05 REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE COMES NOW, the Idaho Department of Water Resources ("IDWR") by and through its undersigned attorneys of record, and hereby submits this REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE. On July 9,2018, Petitioner IDWR filed a petition with the Commission for an order granting intervention to IDWR to become apmty ("Petition to Intervene") pursuant to the REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE - Page 1 Commission's Rules of Procedure ("ROP"), IDAPA 37.01.01 .071-075, so that IDWR may participate in the upcoming formal technical hearing currently scheduled for July 23,2018. On July 16,2018, Avista Corporation ("Avista") and Hydro One Limited ("Hydro One") (hereinafter referred to as "Applicants") filed a Motion in Opposition to IDWR's Petition to Intervene ("Motion in Opposition"). This reply responds to arguments made by the Applicants in their Motion in Opposition. ARGUMENT The Applicants argue that IDWR seeks to unduly broaden the issues in this matter. Motion in Opposition at 3. This is incorrect and contrary to the record in this matter. Numerous comments have raised the issue of water and water rights. See Comment from Deanna Bramblett, Clerk of Benewah County Board of Commissioners, dated Jwrc27,2018 ("Benewah County is concemed about the impact that the proposed Hydro One/Avista merger will have on the ownership and control of Avista's dams, particularly the Post Falls dam, lake and river levels, woter rights and all of the associated economies.") (emphasis added); see also Comment from Andrew Scott, dated June 12,2018 (Expressing concem about the government of Ontario exercising control over Idaho' water and losing control over Idaho's water.) Moreover, there has been public testimony related to water rights. See orul testimony of Norman Semanko on behalf of Avista Customer Group at the public hearing in Coeur d'Alene on June 14,2018. The issue of water and water rights has been raised in this proceeding and thus IDWR's participation would not unduly broaden the scope ofissues. The Applicants also argue that IDWR failed to articulate "good cause" for intervention. Motion in Opposition at 3. IDWR does not concede that its petition is untimely, but even if the Idaho Public Utilities Commission ("PUC") concludes it is untimely, IDWR has articulated REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE - Page2 "good cause" for the delay in intervention. See Petition to Intervene at 5. IDWR was only recently made aware of this proceeding by PUC staff. Once IDWR became aware of this issue, it quickly moved to intervene. The Applicants also make a number of arguments that do not address IDWR's Petition to Intervene but attempt to get the PUC to move forward with deciding this matter without input from the Director of IDWR. They argue this proceeding is not the "appropriate forum" for addressing the public's interest in Avista's hydropower water rights as it relates to the transaction between Avista and Hydro One and that IDWR "has no jurisdictional basis" for imposing conditions. Motion in Opposition at2,4. The Idaho Legislature has made it clear that the PUC is required to impose conditions mandated by the Director and if the Applicants disagree with the conditions mandated by the Director, their remedy is to appeal the Director's decision to Idaho courts, not challenge it before the PUC. Idaho Code $ 6l-328(1) requires authorization by the PUC before an electric public utility owning, controlling or operating any property located in Idaho used in the generation, transmission, distribution or supply of electric power and energy to the public may merge, sell, lease, assign or transfer, directly or indirectly, in any manner whatsoever, such property, or the operation or management or control thereof. Subsection four of Idaho Code $ 61-328 draws IDWR and water right issues into the PUC's process. Idaho Code $ 61-328(4), states, in relevant part: The [PUC] shall include in any authorization or order the conditions required by the director of [IDWR] under section 42-1701(6\ Idatro Code. The [PUC] may attach to its authorization and order such other terms and conditions as in its judgment the public convenience and necessity may require. REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE - Page 3 As quoted above, the PUC "shall include" in any authorization or order the conditions required by the Director of IDWR pursuant to Idaho Code $ 42-1701(6). The term "shall" when used in a statuteisconsideredmandatory. Paoliniv. Albertson's, lnc.,143 Idaho 547,149P.3d822,482 F.3d I149 (2006). Accordingly, if the Director of IDWR concludes that a condition should be imposed on the approval pursuant to Idaho Code $ 42-1701(6) and if the PUC approves the transaction, the PUC is required to include the condition in its authorization or order. It is not a discretionary decision for the PUC. The Idaho Legislature has also made it clear that if someone disagrees with the Director's final decision or order imposing conditions, their remedy is to appeal the Director's decision to district court, not to argue the issue before the PUC. Idaho Code $ 42-I701(6)(a) states: Any such conditions [imposed by the Director] shall ensure that the public interest, as it pertains to the use of water under the hydropower water rights, will not be adversely affected. Conditions, if any, imposed by the director shall be subject to review under section 42-l70lA(4), Idaho Code. Idaho Code $ 42-l70lA(4) provides that: Any person who is aggrieved by a final decision or order of the director is entitled to judicial review. The judicial review shall be had in accordance with the provisions and standards set forth in chapter 52,title 67, Idaho Code. Pursuant to the plain language of Idaho Code $ 42-1701A(4), if the Applicants disagree with the Director's determination, their remedy is seek'Judicial review" of the order pursuant to the Idaho APA. If the Applicants believe the Director lacks jurisdiction to impose conditions, that argument must be raised to district court not to the PUC. REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE _ Page 4 CONCLUSION For the reasons set forth above and in IDWR's Petition to Intervene, the PUC should grant IDWR's request to intervene in this matter DATED this 181 day of July 2018 LAWRENCE G. WASDEN Attorney General DARRELL G. EARLY Deputy Attorney General Chief, Natural Resources Division L. Deputy Attorney General Idaho Department of Water Resources REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE - Page 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this l8r - day of July 2018, I served a true and correct copy of the foregoing document on the following by the method(s) indicated. AVISTA CORPORATION David Meyer X u.s. Mail, postage prepaid Vice president and Chief Counsel of E Hana Delivery Regulatory & Governmental Affairs E overnight uail Avista corporatio E iil:il't''P.O.Box3727 Spokane, WA99220-3727 David.meyer@ avi stacorp. com Patrick Ehrbar Director of Rates State & Federal Regulation Avista Corporation patrick. ehrbar@ avi stacorp. com Elisabeth Thomas Kari Vander Stoep Dirk Middents K&L Gates LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104-1158 liz.thomas@kl gates.com kari.vanderstoep@kl gates.com dirk.middents@kl gates. com James Scarlett Executive Vice President & Chief Legal Officer Hydro One Limited j scarlett@,hydroone. com E u.s. Mail, postage prepaid E Hana Delivery E Overnight uail E Facsimile I Email HYDRO ONE LIMITED E U.S. Mail, postage prepaid E Hana Delivery ! overnight Mail E Facsimile X Email f] u.S. Mail, postage prepaid E uana Delivery ! Overnight Mail f] Facsimile X Email COMMISSION STAFF X U.S. Mail, postage prepaid n Hana Delivery ! overnight Mail E Facsimile X Email Brandon Karpen Deputy Attorney General Idaho Public Utilities Commission 472 W. Washington P.O. Box 83720 Boise, ID 83720-0074 idaho.eov REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE - Page 6 Ronald Williams Williams Bradbury, PC P.O. Box 388 Boise,ID 83701 ron@williamsbradbury.com Larry A. Crowley, Director The Energy Strategies Institute, lnc 5549 S. Cliffsedge Ave. Boise,ID 83716 crowleyla@aol.com Dean J. Miller deanj miller@cableone.net Peter J. Richardson Richardson Adams, PLLC 515 N. 27th St. Boise, lD 83702 peter@ri chardsonadams. com Dr. Don Reading 6070 Hill Road Boise,ID 83703 dreadin g@mindsprine. com IDAHO FOREST GROUP, LLC X U.S. Mail, postage prepaid E gana Delivery ! Overnight tvtail n Facsimile X Email X U.S. Mail, postage prepaid E Hand Delivery fl Overnight tvtail E Facsimile X Email U.S. Mail, postage prepaid Hand Delivery Overnight Mail Facsimile Email CLEARWATER PAPER CORPORATION X u.s. Mail, postage prepaid E Hand Delivery fl overnight Mail ! Facsimile X Email X u.S. Mail, postage prepaid E HanO Delivery ! Overnight Mail ! Facsimile I Email X Email X Email trtrtrtrx carol.hauen@clearwateroaper.com marv@malewallen.com j ohn j acobs @clearwaterpaper. com david. wren@ clearwaterpaper.com nathan. smith@clearwaterpaper. com I Email X Email X Email REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTERVENE - PageT Brady M. Purdy Attorney atLaw 2019 N. l7n St. Boise, ID 83702 bmpurdy@hotmail.com Benjamin J. Otto Idaho Conservation League 710 N. 6th St. Boise, ID 83702 botto@idahoconservation. ore Norman M. Semanko Parsons Behle & Latimer 800 West Main Street, Ste. 1300 Boise,Idaho 83702 nsemanko@parsonsbehle.com COMMUNITY ACTION PARTNERSHIP ASSOCIATION OF IDAHO X u.s. Mail, postage prepaid n Hana Delivery ! Overnight Mail E Facsimile X Email WASHINGTON AND NORTHERN IDAHO DISTRICT COUNCIL OF LABORERS Danielle Franco-Malone X U.S. Mail, postage prepaid Schwerin Campbell Bamard E Hand Delivery lglitzinA I-avitt ttp E overnight Mail 18 west Mercer street, Suite 400 E iffiii"t-Seattle, WA 98119-3971 franco@workerlaw.com IDAHO CONSERVATION LEAGUE X u.s. Mail, postage prepaid ! UanA Delivery ! Overnight Mail E Facsimile X Email AVISTA CUSTOMER GROUP X u.s. Mail, postage prepaid I Uana Delivery ! Overnight Mail E Facsimile X Email L. Baxter REPLY TO MOTION IN OPPOSITION TO IDWR'S PETITION TO INTER\TENE - Page 8