20180709Petition to Intervene.pdf

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENEBAL
LAWRENCE G. WASDEN
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July 9,2018
Transmitted Via Hand Delivery and E-mail
Diane Hanian, Commission Secretary
Idaho Public Utilities Commission
472W. Washinglon St.
Boise,Idaho 83702
d iane.holt@puc. idaho. gov
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 IDWR's Notice of
Intent to Consider Conditions; IDWR's Petition to Intervene.
Please contact me if you have any questions.
S
Baxter
Deputy Attorney General
Natural Resources Division - Water Resources Section
P.O. Box 83720 Boise, ldaho 83720-0098
Telephone: [phone], Legal FAX: [phone]
Enclosures
R[CEIVED
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LAWRENCE G. WASDEN
ATTORNEY GENERAL
DARRELL G. EARLY
Deputy Attorney General
Chiel Natural Resources Division
GARRTCK L. BAXTER,ISB #630r
EMMI BLADES,ISB # #8682
Deputy Attorneys General
Idaho Department of Water Resources
P.O. Box 83720
Boise, Idaho 83720-0098
Telephone: [phone]
Facsimile: [phone]
garrick. baxter@idwr. idaho. gov
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- l7-05
IDWR'S NOTICE OF INTENT TO
CONSIDER CONDITIONS; IDWR'S
PETITION TO INTERVENE
COMES NOW, Petitioner the Idaho Department of Water Resources ("IDWR"), by and
through its undersigned attomeys of record, and hereby (l) provides notice to the Idaho Public
Utilities Commission ("Commission") of IDWR's intent to consider appropriate conditions to
require as part of any authorization and order issued by the Commission in this matter pursuant
to Idaho Code $ 42-1701(6); and (2) petitions the Commission for an order granting intervention
IDWR'S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR'S PETITION TO
INTERVENE - Page I
to IDWR to become aparty pursuant to the 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.
1. The address and name of the Petitioner is:
Idaho Department of Water Resources
3228. Front Street
P.O. Box 83720
Boise, Idaho 83720-0098
2. IDWR will be represented by the below counsel of record and effective immediately, all
notices, correspondence, pleadings, filings, or other communications should be directed
to the following persons at the address listed below:
Garrick L. Baxter
Idaho Department of Water Resources
322E. Front Street
P.O. Box 83720
Boise, Idaho 83720-0098
garrick. baxter@idwr. idaho. gov
3. IDWR is an executive agency of the State of Idaho created pursuant to Idaho Code $ 42-
I 70 I . All the waters of the State of Idaho, when flowing in their natural channels,
including the waters of all natural springs and lakes within the boundaries of the state are
the property of the State of Idaho. Idaho Code $ 42-101. IDWR, through its Director,
Gary Spackman, directs and controls the distribution of the water resources of the State
of Idaho. Idaho Code $ 42-601.
4. Avista operates certain hydroelectric plants within the State of Idaho and holds or claims
water rights for power generation purposes at these hydroelectric plants. These include,
IDWR'S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR,S PETITION TO
INTERVENE - Page2
but are not limited to water right or claim nos. 95-4518, 95-8003, 95-9115, 95-9119,96-
4565 , 96-2179 , 96-2180, and 96-2269 .
5. IDWR has a direct and substantial interest in this proceeding and pursuant to Idaho Code
$$ 6l-328 and 42-1701(6) has the authority to participate in these proceedings and should
be granted intervention as a matter of law. Idaho Code $ 42-1701(6) provides, in relevant
part:
(6)(a) Any authorization or order of the Idaho public utilities commission, under
the provisions of section 6l-328,Idaho Code, approving the sale, assignment or
transfer of hydropower water rights used in the generation of electric power shall
be issued only upon such conditions as the director of the department of water
resources shall require as necessary to prevent any change in use ofwater under
the water rights held for hydropower purposes that would cause injury to any
water rights existing on the date of the sale, assignment or transfer. Any such
conditions 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 $ 61-328 provides, in relevant part:
The commission shall include in any authorization or order the conditions
required by the director of the department of water resources under section
42-1701(6), Idaho Code. The commission may attach to its authorization
and order such other terms and conditions as in its judgment the public
convenience and necessity may require.
6. IDWR is in the process of evaluating what conditions should be required pursuant to
Idaho Code $ 42-1701(6)(a). IDWR hereby provides notice to the Commission of
IDWR's intent to consider appropriate conditions to require as part of any authorization
and order issued by the Commission in the proceeding pursuant to Idaho Code $ 42-
l70l(6)(a).
7. IDWR also seeks to intervene in this proceeding to make the Commission aware of
IDWR's concerns with the proposed merger and its potential impact on Avista's historic
IDWR,S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR,S PETITION TO
INTERVENE - Page 3
hydropower operations.r Pursuant to Idaho Code $$ 42-1701(6) and 6l-328, IDWR
should be permitted to intervene as a matter of right due to the mandatory duty of the
Commission to consider and include any conditions required by the Director.
8. Because of IDWR's statutory right to participate in these proceedings, IDWR may
commence its participation at any time. IDWR's request to intervene, therefore is timely.
Moreover, a petition to intervene is timely filed if it is "filed at least fourteen (14) days
before the date set for hearing or prehearing conference, whichever is earlier, unless a
different time is provided by order or notice." ROP 73. The Commission's Order No.
33903 (Oct. 5, 2017) set a deadline of October 26,2017, to petition to intervene for the
purpose of participating at hearing, and Order No. 33950 set a formal technical hearing
for June 27,2018. That case schedule was subsequently vacated and replaced with a
new, arnended schedule, which did not include a formal hearing date, prehearing
conference date, or deadline for intervention. Notice of Proposed Settlement; Notice of
Modified Procedure; Notice of Public Hearings; Notice of Amended Schedule; Order No.
34061 (May 16,2018). A formal technical hearing date was subsequently approved by
the Commission to address the concerns and issues raised by the public. Notice of
Technical Hearing (July 3, 2018). This Petition to Intervene is filed more than l4 days
before the formal technical hearing, which is currently scheduled for July 23,2018, and is
thus timely under ROP 73. IDWR's intervention will not unduly broaden the issues in
I Avista has contacted IDWR and has suggested Idaho Code S 42-1701 does not apply to this proceeding. IDWR is
filing this petition to intervene out of an abundance of caution, as IDWR believes that the issue of Avista's historical
hydropower subordination is an issue of public concern and directly relates to the Commission's public interest
considerations.
IDWR'S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR'S PETITION TO
INTERYENE - Page 4
this matter. The issues of concern for IDWR are rurrrow and focus specifically on the
public interest issues related to Avista's hydropower operations.
9. In the event that the Commission determines IDWR's petition to intervene is untimely,
the Commission should conditionally grant the petition for good cause pursuant to ROP
73. IDWR was only recently made aware of this proceeding when asked by the
Commission staff to provide the conditions it would require pursuant to Idaho Code $ 42-
1701(6). As the Commission must make specific findings with regards to the public
interest, the Department has information relevant to this issue.
For the foregoing reasons, IDWR's Petition to Intervene should be granted to allow
IDWR to intervene in this matter and participate in the July 23 technical hearing.
DATED ttris -f,aay of July 2018.
LAWRENCE G. WASDEN
Attomey General
DARRELL G. EARLY
Deputy Attorney General
Chief, Natural Resources Division
BAXTER
Deputy General
Idaho Department of Water Resources
IDWR,S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR,S PETITION TO
INTERVENE - Page 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 'fljday 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 I overnight Mail
Avista corporation E |ffili"il'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-l158
liz.thomas@kl gates.com
kari.vanderstoep@kl gates. com
dirk.middents@klsates. com
James Scarlett
Executive Vice President & Chief
Legal Officer
Hydro One Limited
i scarlett@hydroone. com
Brandon Karpen
Deputy Attorney General
Idaho Public Utilities Commission
472W. Washington
P.O. Box 83720
Boise, lD 83720-0074
brandon.karpen@puc. idaho. gov
E u.s. Mail, postage prepaid
E Hana Delivery
! Overnight Mail
E Facsimile
X Email
HYDRO ONE LIMITED
E U.S. Mail, postage prepaid
E Hana Delivery
! overnight Mail
E Facsimile
X Email
E U.S. Mail, postage prepaid
E uana Delivery
! Overnight Mail
E Facsimile
X Email
COMMISSION STAFF
X U.S. Mail, postage prepaid
! uanA Delivery
! Overnight Mail
E Facsimile
X Email
IDWR'S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR'S PETITION TO
INTERVENE - Page 6
Ronald Williams
Williams Bradbury, PC
P.O. Box 388
Boise,ID 87301
ron@,wi I liamsbradbury. com
Larry A. Crowley, Director
The Energy Strategies Institute, Inc.
5549 S. Cliffsedge Ave.
Boise,ID 83716
[e-mail]
Dean J. Miller
deanj mi I I er@ c ab I eone. net
Dr. Don Reading
6070 Hill Road
Boise,ID 83703
dreadin g@mindspring. com
IDAHO FOREST GROUP, LLC
X U.S. Mail, postage prepaid
E uand Delivery
E Overnight uail
E Facsimile
X Email
X U.S. Mail, postage prepaid
E Hana Delivery
I overnight tvtail
E Facsimile
X Email
n U.S. Mail, postage prepaid
I uand Delivery
I Overnight Mail
E Facsimile
X Email
CLEARWATER PAPER CORPORATION
Peter J. Richardson X U.S. Mail, postage prepaid
Richardson Adams, PLLC F Hano Delivery
515 N. 27th St.
=
overnight Mail
Boise, rD 83702 H iffiii''.
peter@richardsonadams. com
[e-mail]
[e-mail]
j ohn j acobs @ c I earwaterpaper. com
david. wren@ clearwaterpaper.com
nathan. smith@ c learwaterpaper. com
X u.s. Mail, postage prepaid
E Hana Delivery
! overnight Mail
E Facsimile
X Email
X Email
X Email
X Email
X Email
X Email
IDWR'S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR,S PETITION TO
INTERVENE - Page7
COMMUNITY ACTION PARTNERSHIP ASSOCIATION OF IDAHO
Brady M. Purdy X u.s. Mail, postage prepaid
Attomey at Law E gana Delivery
2019 N. 17th St. E Overnight Mail
Boise, tD s3702 E iil:li'"'[e-mail]
botto
WASHINGTON AND NORTHERN IDAHO DISTRICT COUNCIL OF LABORERS
Danielle Franco-Malone X U.S. Mail, postage prepaid
Schwerin Campbell Barnard E Hand Delivery
Iglitzin *,faii1yfp E overnighttvtail
18 west Mercer Street, Suite 400 E [ffiii""'Seattle, WA 98119-3971
[e-mail]
Benjamin J. Otto
Idaho Conservation League
710 N. 6th St.
Boise, ID 83702
Norman M. Semanko
Parsons Behle & Latimer
800 West Main Street, Ste. 1300
Boise,Idaho 83702
nsemanko@parsonsbehle. com
IDAHO CONSERVATION LEAGUE
X U.S. Mail, postage prepaid
! Uana Delivery
! Overnight Mail
! Facsimile
X Email
AVISTA CUSTOMERGROUP
X u.S. Mail, postage prepaid
E Hand Delivery
f] overnight tvtail
! Facsimile
I Email
IDWR'S NOTICE OF INTENT TO CONSIDER CONDITIONS; IDWR'S PETITION TO
INTERVENE - Page 8