[Vision2020] Correction: Legal Issues: Hawkins Water & Sewer Agreement

[Ted Moffett]

*All:  It appears the legal discussion on out of state water sales was
truncated in my previous post on this subject.  Here is another attempt:*
*From:* Rassier, Phil
*Sent:* Tuesday, February =2, 2008 5:58 PM
*To:* 'Mark Solomon'
*Cc:* Haynes, Bob; 'rfife at ci.moscow.id.us'
*Subject:* RE: Moscow out =f state sale of water



For the reasons stated in the =track letter, the provisions of I.C. 50-324
do not provide usable authority =or the City of Moscow in the present case.
That statute provides =uthority for a city in Idaho to acquire and operate
an out of state private water =istribution system in order to supply water
to the Idaho city from an out of =tate source.

The Strack letter also addresses =he provisions of I.C. 42-401 governing
applications for use of public =aters outside the state. While this
statute certainly governs =pplications by persons from outside the state it
also governs applications from =ersons within Idaho who intend to "withdraw
water from any surface or =nderground water source in the state of Idaho and
transport it for use outside the =tate ..."  To read the statute otherwise
would mean the =egislature intended to withhold from Idaho citizens a
benefit required under the =ommerce Clause that is being provided to
non-citizens. In my view, this =ould not be a plausable reading of the
statute.

I appreciate your inquiry and hope =ou find this response helpful.

Sincerely,

Phil Rassier

Phillip J. =assier

Idaho Department of Water =esources

P.O. Box 83720

Phone: (208) =87-4808

Email: =hil.rassier at idwr.idaho.gov


 ------------------------------

*From:* Mark Solomon [mailto:msolomon at uidaho.edu]
*Sent:* Monday, February =1, 2008 11:22 AM
*To:* Rassier, Phil
*Subject:* Moscow out of =tate sale of water

Dear Phil,

I am writing you today to seek =our assistance in clarifying the statutory
authorities under which the City =f Moscow may seek IDWR permission to sell
water across the Washington =tate line to a private entity. The city
attorney, Randy Fife, and I have discussed =his matter and come to
diametrically held opinions. In the interest of =esolving this issue as
expeditiously as possible, informal guidance from IDWR, =hort of a court's
determination, may serve all the interests at hand - =specially if provided
prior to an actual application from the City of Moscow to =DWR.



50-324. CITIES AUTHORIZED TO =OINTLY PURCHASE OR LEASE, MAINTAIN OR OPERATE
A JOINT WATER SYSTEM.* All cities of this state are empowered by =rdinance
to negotiate for* and purchase or lease*


Here the state has spoken specifically to =he conditions under which cities
are authorized to distribute water across =he state line. By my
understanding of the rules of statutory =nterpretation, when a statute
speaks specifically to a circumstance, it then excludes the =xtension of the
power in question. In other words, by specifically granting =ities the power
to cooperate with adjoining cities in bordering states, the state excludes
the cities' power to cooperate with other entities in the =peration of a
joint water system across state lines. If my interpretation is correct =and
while I've read a lot of law, I am not a lawyer), then deciding how to
=roceed under 42-401 is a moot point.


If it is not mooted, then consideration =f the other statutes is required.
It is the City's position that 42-401 =rovides the authority and permitting
process for its sale of water across the state =ine. A simple reading of the
Chapter's title "APPROPRIATIONS FOR USE =UTSIDE STATE" would appear to
support that position. However, a plain =eading of the statute accompanied
by its legislative history indicates that this =tatute speaks to a set of
facts that do not fit the City's =ircumstances.

42-401 I.C. seems to be intended to =ddress facts similar to those that gave
rise to the U.S Supreme Court decision =n Sporhase v. Nebraska ex rel
=ouglas, 458 U.S. 941 (1982) and the subsequent test of New Mexico's statute
=nterpreting that decision in City of El Paso v. =eynolds (El Paso II), 597
F. Supp. 694 (D.N.M. 1984). 41-401 I.C. repeatedly =efers to an applicant's
use of water in an adjoining state as in Sporhase, not the provision of
=ater by an entity in Idaho to a different entity in another =tate:

(2)  Any person, firm =r corporation or any other entity intending to
withdraw water from =ny surface or underground water source in the state of
Idaho and =ransport it for use outside the state or to change the place or
purpose of use =f a water right from a place in Idaho to a place outside the
state shall =ile with the department of water resources an application for a
=ermit to do soŠ

 (3)  In order to approve an application under this chapter, the director
must find that the =pplicant's use of water outside the stateŠ.

 (7)  Upon submittal of the application, the applicant shall designate an
agent in the state of =daho for reception of service of processŠ.

 Sporhase*, but not with the intention of the City of =oscow to apply for a
permit to sell water across the state line. Even if =2-401 could be read so
broadly as to include such a sale, it appears the applicant =ould not be the
City of Moscow but would have to be the out-of-state entity =ho intends to
use the state's water. It is my reading that 42-401 et seq =imply does not
apply to the situation at hand no matter who is the =pplicant.
----------------------------

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New?;color:black?><TT>Vision2020 Post: Ted
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