March 22, 2023
Tim Keane Director, Planning and Development Services City of Boise
150 N Capitol Blvd
Boise, ID 83702
Re: Zoning Code Update
Dear Tim,
Thank you for the City’s outreach and engagement with Boise State University’s staff during the zoning code update. The University’s long-standing zoning designation has been significantly improved by clearly supporting the responsible and adequate use of our campus property
We particularly appreciate the attention given to dimensional standards in the newly designated MX-U (University) zone. Our campus is part of the Downtown Planning Area, and the removal of a height limit brings numerous positive impacts for future planning efforts. Being able to develop taller, downtownappropriate facilities will limit horizontal expansion, and allow for greater infill development on campus. We also support the preservation of certain perimeter controls, and the requirement for a public engagement when projects may impact the surrounding community. The relationships we hold with our neighbors are important, and this approach will ensure an inclusive and collaborative process.
We look forward to continued collaboration with the City of Boise, as Boise State fulfills the objectives of its Strategic Plan and Campus Master Plan.
Sincerely,
Drew Alexander Director of Planning
CC: Alicia Estey, Vice President for University Affairs and Chief Operating Officer
1445 N Orchard St
Boise ID 83706 • (208) 373-0550
April 13, 2023
City of Boise
Planning and Zoning Commission
PO Box 500
Boise, ID 83701-0500
Brad Little, Governor Jess Byrne, Director
Subject: ZOA23-00001 Zoning Ordinance Amendment of Boise City Code Title 11
CPA23-00001 Comprehensive Plan Map Amendment
Dear City of Boise:
Thank you for the opportunity to respond to your request for comment. While DEQ does not review projects on a project-specific basis, we attempt to provide the best review of the information provided. DEQ encourages agencies to review and utilize the Idaho Environmental Guide to assist in addressing project-specific conditions that may apply. This guide can be found at:
https://www.deq.idaho.gov/public-information/assistance-and-resources/outreach-and-education/
The following information does not cover every aspect of this project; however, we have the following general comments to use as appropriate:
1. AIR QUALITY
• Please review IDAPA 58.01.01 for all rules on Air Quality, especially those regarding fugitive dust (58.01.01.651), trade waste burning (58.01.01.600-617), and odor control plans (58.01.01.776).
For questions, contact David Luft, Air Quality Manager, at (208) 373-0550.
• IDAPA 58.01.01.201 requires an owner or operator of a facility to obtain an air quality permit to construct prior to the commencement of construction or modification of any facility that will be a source of air pollution in quantities above established levels. DEQ asks that cities and counties require a proposed facility to contact DEQ for an applicability determination on their proposal to ensure they remain in compliance with the rules.
For questions, contact the DEQ Air Quality Permitting Hotline at 1-877-573-7648.
2. WASTEWATER AND RECYCLED WATER
• DEQ recommends verifying that there is adequate sewer to serve this project prior to approval. Please contact the sewer provider for a capacity statement, declining balance report, and willingness to serve this project.
• IDAPA 58.01.16 and IDAPA 58.01.17 are the sections of Idaho rules regarding wastewater and recycled water. Please review these rules to determine whether this or future projects will require DEQ approval. IDAPA 58.01.03 is the section of Idaho rules regarding subsurface disposal of wastewater. Please review this rule to determine whether this or future projects will require permitting by the district health department.
• All projects for construction or modification of wastewater systems require preconstruction approval. Recycled water projects and subsurface disposal projects require separate permits as well.
• DEQ recommends that projects be served by existing approved wastewater collection systems or a centralized community wastewater system whenever possible. Please contact DEQ to discuss potential for development of a community treatment system along with best management practices for communities to protect ground water.
• DEQ recommends that cities and counties develop and use a comprehensive land use management plan, which includes the impacts of present and future wastewater management in this area. Please schedule a meeting with DEQ for further discussion and recommendations for plan development and implementation.
For questions, contact Valerie Greear, Water Quality Engineering Manager at (208) 3730550.
3. DRINKING WATER
• DEQ recommends verifying that there is adequate water to serve this project prior to approval. Please contact the water provider for a capacity statement, declining balance report, and willingness to serve this project.
• IDAPA 58.01.08 is the section of Idaho rules regarding public drinking water systems. Please review these rules to determine whether this or future projects will require DEQ approval.
• All projects for construction or modification of public drinking water systems require preconstruction approval.
• DEQ recommends verifying if the current and/or proposed drinking water system is a regulated public drinking water system (refer to the DEQ website at: https://www.deq.idaho.gov/water-quality/drinking-water/. For non-regulated systems, DEQ recommends annual testing for total coliform bacteria, nitrate, and nitrite.
• If any private wells will be included in this project, we recommend that they be tested for total coliform bacteria, nitrate, and nitrite prior to use and retested annually thereafter.
• DEQ recommends using an existing drinking water system whenever possible or construction of a new community drinking water system. Please contact DEQ to discuss this project and to explore options to both best serve the future residents of this development and provide for protection of ground water resources.
• DEQ recommends cities and counties develop and use a comprehensive land use management plan which addresses the present and future needs of this area for adequate, safe, and sustainable drinking water. Please schedule a meeting with DEQ for further discussion and recommendations for plan development and implementation.
For questions, contact Valerie Greear, Water Quality Engineering Manager at (208) 3730550.
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4. SURFACE WATER
• Please contact DEQ to determine whether this project will require an Idaho Pollutant Discharge Elimination System (IPDES) Permit. A Construction General Permit from DEQ may be required if this project will disturb one or more acres of land, or will disturb less than one acre of land but are part of a common plan of development or sale that will ultimately disturb one or more acres of land.
• For questions, contact James Craft, IPDES Compliance Supervisor, at (208) 373-0144.
• If this project is near a source of surface water, DEQ requests that projects incorporate construction best management practices (BMPs) to assist in the protection of Idaho’s water resources. Additionally, please contact DEQ to identify BMP alternatives and to determine whether this project is in an area with Total Maximum Daily Load stormwater permit conditions.
• The Idaho Stream Channel Protection Act requires a permit for most stream channel alterations. Please contact the Idaho Department of Water Resources (IDWR), Western Regional Office, at 2735 Airport Way, Boise, or call (208) 334-2190 for more information. Information is also available on the IDWR website at: https://idwr.idaho.gov/streams/stream-channel-alteration-permits.html
• The Federal Clean Water Act requires a permit for filling or dredging in waters of the United States. Please contact the US Army Corps of Engineers, Boise Field Office, at 10095 Emerald Street, Boise, or call 208-345-2155 for more information regarding permits. For questions, contact Lance Holloway, Surface Water Manager, at (208) 373-0550.
5. SOLID WASTE, HAZARDOUS WASTE AND GROUND WATER CONTAMINATION
• Solid Waste. No trash or other solid waste shall be buried, burned, or otherwise disposed of at the project site. These disposal methods are regulated by various state regulations including Idaho’s Solid Waste Management Regulations and Standards (IDAPA 58.01.06), Rules and Regulations for Hazardous Waste (IDAPA 58.01.05), and Rules and Regulations for the Prevention of Air Pollution (IDAPA 58.01.01). Inert and other approved materials are also defined in the Solid Waste Management Regulations and Standards
• Hazardous Waste. The types and number of requirements that must be complied with under the federal Resource Conservations and Recovery Act (RCRA) and the Idaho Rules and Standards for Hazardous Waste (IDAPA 58.01.05) are based on the quantity and type of waste generated. Every business in Idaho is required to track the volume of waste generated, determine whether each type of waste is hazardous, and ensure that all wastes are properly disposed of according to federal, state, and local requirements.
Page 3 of 4
• Water Quality Standards. Site activities must comply with the Idaho Water Quality Standards (IDAPA 58.01.02) regarding hazardous and deleterious-materials storage, disposal, or accumulation adjacent to or in the immediate vicinity of state waters (IDAPA 58.01.02.800); and the cleanup and reporting of oil-filled electrical equipment (IDAPA 58.01.02.849); hazardous materials (IDAPA 58.01.02.850); and used-oil and petroleum releases (IDAPA 58.01.02.851 and 852). Petroleum releases must be reported to DEQ in accordance with IDAPA 58.01.02.851.01 and 04. Hazardous material releases to state waters, or to land such that there is likelihood that it will enter state waters, must be reported to DEQ in accordance with IDAPA 58.01.02.850.
• Ground Water Contamination. DEQ requests that this project comply with Idaho’s Ground Water Quality Rules (IDAPA 58.01.11), which states that “No person shall cause or allow the release, spilling, leaking, emission, discharge, escape, leaching, or disposal of a contaminant into the environment in a manner that causes a ground water quality standard to be exceeded, injures a beneficial use of ground water, or is not in accordance with a permit, consent order or applicable best management practice, best available method or best practical method.”
For questions, contact Rebecca Blankenau, Waste & Remediation Manager, at (208) 373-0550.
6. ADDITIONAL NOTES
• If an underground storage tank (UST) or an aboveground storage tank (AST) is identified at the site, the site should be evaluated to determine whether the UST is regulated by DEQ. EPA regulates ASTs. UST and AST sites should be assessed to determine whether there is potential soil and ground water contamination. Please call DEQ at (208) 373-0550, or visit the DEQ website https://www.deq.idaho.gov/waste-management-andremediation/storage-tanks/leaking-underground-storage-tanks-in-idaho/ for assistance.
• If applicable to this project, DEQ recommends that BMPs be implemented for any of the following conditions: wash water from cleaning vehicles, fertilizers and pesticides, animal facilities, composted waste, and ponds. Please contact DEQ for more information on any of these conditions.
We look forward to working with you in a proactive manner to address potential environmental impacts that may be within our regulatory authority. If you have any questions, please contact me, or any of our technical staff at (208) 373-0550.
Sincerely,
Aaron Scheff Regional Administrator
c:
2021AEK
Page 4 of 4
April 12, 2023
Crystal Rain
PDS – Current Planning
RE: ZOA23-00001 2023 Boise City Zoning Code Amendment
Dear Crystal,
Boise Fire Department has reviewed the proposed zoning code amendment along with the new zoning map. Upon this review, the Boise Fire Department can approve of the amendment as it allows us to effectively respond in our service to the public as we do today. It will also allow for our continued improvement in planning for our future needs in public safety.
Regards,
Mike Bisagno
Mike Bisagno
Division Chief
Fire Marshal Boise Fire Department
–
601 W. Bannock Street PO Box 2720
Boise, ID 83701 Main: 208-388-1200
www.givenspursley.com
Preston N. Carter Direct: 208-388-1222 prestoncarter@givenspursley.com
VIA Hand Delivery and Email Planning and Zoning Commission City of Boise
150 N. Capitol Blvd Boise, ID 83702-5920 zoningrewrite@cityofboise.org
April 20, 2023
Re: Intermountain Gas Company’s Comments on new zoning code ordinance (ZOA23-00001 and CPA23-00001)
Dear Planning and Zoning Commissioners, City Staff, and Elected Officials:
Please accept these comments on behalf of Intermountain Gas Company (Intermountain Gas) in response to Boise’s Zoning Code Rewrite. These comments address the restrictions on energy source (limited to electricity or geothermal) in Section 11-03-03.2H(1)(f)(i) (amenities for multi-family housing developments) and throughout Section 11-04-03.7(D) (incentives available for exemption from density limits in various zoning districts) in the February 2023 Adoption Draft (Draft Ordinance).
Intermountain Gas provides natural gas service to approximately 405,000 customers throughout Idaho, including customers within the City of Boise (City). Intermountain Gas values its relationship with its customers, the City, developers, and other stakeholders, and appreciates the opportunity to provide comments on the Draft Ordinance. As a general matter, Intermountain Gas understands and appreciates the time, energy, and effort that has gone into the Draft Ordinance. Intermountain Gas shares many of the goals embodied in the Draft, including encouraging affordable and fair housing and promoting the use of environmentally friendly development practices and energy conservation.1
Intermountain Gas does, however, have concerns with the Draft Ordinance. Two sections of the Draft Ordinance appear to regulate the source of energy available to new developments by providing preferential treatment to developments that use only electricity or geothermal energy rather than natural gas. First, under Section 11-03-03.2H(1)(f), a multi-family housing development must provide at least two of the six listed “amenities” in certain zoning districts. The Draft Ordinance considers a prohibition on natural gas connections as an “amenity” for
1 Draft Ordinance Section 11-01-03 (Purpose).
purposes of this section.2 Stated another way, the Draft Ordinance regulates the source of energy for certain new, multi-family dwellings by classifying a natural-gas-free development as an “amenity.” Indeed, it appears that a restriction on natural gas connections would satisfy one-half of the developer’s obligation regarding amenities for the development.
Second, throughout Section 11-04-03.7(D), housing developments are exempted from density standards, parking requirements, and height restrictions if they meet certain requirements. One of these requirements is prohibiting natural gas connections to the development.3 Stated another way, under the Draft Ordinance, a developer is entitled to an exemption from certain density standards only if the developer prohibits natural gas connections within the development.
Intermountain Gas submits that these sections of the Draft Ordinance should and indeed must be removed. As a legal matter, recent legislation prohibits this type of energy-source restriction in a city’s zoning code. See Idaho Code §§ 50-346, 39-9701.4 House Bill 106, codified as Idaho Code Section 50-346, prohibits a city from “enact[ing] or implement[ing] any resolution, policy, or ordinance that: . . . (2) Restricts, or has the effect of restricting, the source of the electricity, natural gas, propane, or other energy utility service provided by a public utility, municipality, or cooperative utility; or (3) Requires residents or businesses within the municipality to use a particular type or generation source of electricity, natural gas, propane or other fuel.”
The text of House Bill 106 prohibits the energy-source restrictions contained in the Draft Ordinance. Designating “electricity or geothermal” as an “amenity” both “has the effect of restricting[] the source of the electricity, natural gas, propane, or other energy utility service” as well as requires “residents or businesses” to use a “particular type or generation source,” namely electricity or geothermal. See Section 11-03-03.2H(1)(f)(i). Similarly, the density exemption eligibility for which requires a natural-gas-free development has “the effect of restricting” the energy source. See Sections 11-04-03.7(D)(1)(b)(i), (3)(c)(i), (4)(b)(i), (5)(b)(i). In turn, residents or businesses in those developments will be required to use a particular type or generation source.
The legislative history confirms that the Legislature intended to prevent the energysource restriction contained in the Draft Ordinance. In the Senate’s debate on House Bill 106, Senator Rabe explained that it would prohibit a voluntary program that creates incentives,
2 Specifically, the Draft Ordinance designates, as an amenity, a building that restricts the source of energy to “electricity or geothermal” to meet all “heating, hot water, and appliance energy needs” for all dwelling units. Section 11-03-03.2H(1)(f)(i) (Use-Specific Standards for Residential Uses).
3 One of the requirements to earn these exemptions is that the “building shall use electricity or geothermal energy to meet all of its heating, hot water, and appliance energy needs” in all dwelling units. Sections 11-04-03.7(D)(1)(b)(i), (3)(c)(i), (4)(b)(i), (5)(b)(i) (Incentives to Create Affordable and Sustainable Housing).
4 Even if these statutes didn’t directly apply, the City of Boise would still lack authority for this type of action. Idaho is a Dillon’s rule state; cities lack inherent authority to legislate. Rather, their lawmaking power derives from grants of authority expressly granted or necessarily implied by the Idaho Constitution or statute. Caesar v. State, 101 Idaho 158, 160, 610 P.2d 517, 519 (1980). While the Local Land Use and Planning Act grants Idaho cities authority to make land-use decisions, including zoning decisions, cities lack authority to regulate sources of energy.
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including the City of Boise’s ability to incentivize connections to geothermal. Senator Wintrow’s comments reflected a similar understanding of the Bill 5
House Bill 287, codified as Idaho Code Section 39-9701, “preempt[s], eliminate[s], and prohibit[s] cities . . . from adopting energy code or energy-related requirements through any code, ordinance, process, policy, or guidance that differ from or are more extensive than the requirements of the Idaho energy conservation code as provided for in this chapter.” (emphasis added). As previously discussed, in order to obtain the exemption from certain density standards, developers are required to use only electricity or geothermal energy. This is an energy-related requirement that differs from or is more extensive than the requirements of the Idaho energy conservation code. Accordingly, these provisions of the Draft Ordinance are expressly preempted.
As a factual matter, these provisions are contrary to the City’s stated goals of promoting affordable housing. Natural gas is an affordable and stable energy source. The American Gas Association notes that households that use natural gas for heating, cooking, and clothes drying save an average of $1,068 per year compared to homes using electricity for those applications. In addition, the U.S. Energy Information Administration projects that natural gas will continue to be 30–50% less than the price of other fuels through 2050.6 Natural gas is not only cheaper than electricity, but also provides more heating comfort and better cooking performance.7 Removing these provisions would align the Draft Ordinance with the City’s goals regarding affordable housing.
In sum, the current energy-source restrictions in the Draft Ordinance are inconsistent with Idaho law as well as the City’s affordable-housing goals. As discussed above, both Bills were recently passed, likely after the drafting of the proposed ordinance. However, the Draft Ordinance can be brought into conformance with the law by simply removing these provisions. Thank you for your consideration of these comments. If you would like to discuss any of these comments further, please contact me at (208) 388-1200.
Sincerely,
Preston N. Carter
Morgan D. Goodin Givens Pursley, LLP Attorneys for Intermountain Gas
5 See Senate Chambers Digital Media Archive (Mar. 14, 2023). Video at 2:19:18-2:32:50, available at https://lso.legislature.idaho.gov/MediaArchive/ShowCommitteeOrMedia.do;jsessionid=70CF07950B33C6E96D09F 40A3840B827 Senators Rabe and Wintrow both advocated against House Bill 106, as they both appeared to support the type of energy-source restrictions contained in the Draft Ordinance.
6 U.S. Energy Information Administration, Annual Energy Outlook 2020, available at, https://www.eia.gov/outlooks/aeo/data/browser/#/?id=3-AEO2020®ion=10&cases=ref2020&start=2019&end=2050&f=A&linechart=ref2020-d112119a.3-3-AEO2020.1-0~ref2020d112119a.5-3-AEO2020.1-0&map=ref2020-d112119a.4-3-AEO2020.10&ctype=linechart&chartindexed=0&sid=ref2020-d112119a.5-3-AEO2020.1-0&sourcekey=0.
7 See Kenneth W. Costello, Why Kill Natural Gas?, REGULATION, Spring 2022, at 27, attached as Exhibit 1
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Director of Planning and Development Services Jayme B. Sullivan, Boise City Attorney
20, 2023 Page 4 of 4
April
cc: Tim Keane,
16714498_6.docx
E XHIBIT 1 EXHIBIT 1
CITY OF BOISE
INTER-DEPARTMENT CORRESPONDENCE
Date: 2 March 2023
To: Planning and Development Services
From: Tom Marshall, PW Street Lighting Supervisor Public Works Engineering
Subject: Street Light Comments
ZOA23-00001 & CPA23-00001: Citywide:
No comments.
If you have further questions, please contact Tom Marshall at 208-608-7526
Tom Marshall
PW Street Light Program Supv
Public Works
Office: (208)608-7526
tmarshall@cityofboise.org cityofboise.org
Creating a city for everyone.
I:\PWA\Subjects\Review Comments\CUs\templates and process\CU Streetlight master comment templete.docx
March 21, 2023
RE: Initial comments on the new zoning code ordinance (ZOA23-0001 & CPA23-0001)
Dear Planning and Zoning Commission, City Staff, and Elected Officials,
Thank you for giving Veolia Water Idaho the opportunity to review and comment on the soon-to-be-finalized planning and zoning update
We are filing this letter to have our input included in the staff report to the Planning and Zoning Commission We plan to send additional information beforeApril 20 after taking more time to digest the many implications this rewrite might have
I can say wholeheartedly, we support the city’s initiatives to promote water conservation, a core value shared by Veolia and its employees.
We have many unanswered questions on the modern zoning code’s section 11-04-010Assured Water Supply.
While Veolia is the state's largest drinking water utility, we are not the only provider operating within Boise’s city limits Safe drinking water is provided to the community from a variety of systems and developments of all sizes Any of these operations could meet requirements to be a “designated water provider” under the city’s new planning and zoning definition
We are also curious as to how section 11-04-010 would be administered and enforced, and how that overlaps with the authority of Idaho Department of Water Resources, Idaho Public Utilities Commission, and other established state agencies
The proposed ordinance raises concerns regarding Idaho Code section 42-201(7) which delegates exclusive authority over the appropriation of the public surface and ground waters of the state to the Idaho Department of Water Resources. It states that “no other agency, department, county, city, municipal corporation or other instrumentality or political subdivision of the state shall enact any rule or ordinance or take any other action to prohibit, restrict or regulate the appropriation of the public surface or ground waters of the state, and any such action shall be null and void.”
Veolia
Idaho Operations
8248 W Victory Road
Boise, ID 83709
tel (208) 362-7304
wwwmywater@veolia
us
Our customers must come first as we evaluate the proposed changes to code It is imperative that any potential conflicts of interest in regulatory authority and increases to service costs are settled before any new rules have the potential to adversely affectTreasure Valley residents. We look forward to working with you to address these outstanding questions.
Sincerely,
MarshallThompson
V.P. & General Manager Veolia Water Idaho
Idaho Operations 8248 W. Victory Road Boise, ID 83709 tel (208) 362-7304
Veolia
www.mywater@veolia.us
April 20, 2023 (email to zoningrewrite@cityofboise.org)
Planning and Zoning Commission
City of Boise
150 N Capitol Blvd
Boise, ID 83702-5920
Re: Additional comments from Veolia Water Idaho, Inc. (“Veolia” or the “Company”) on new zoning code ordinance (ZOA23-00001 and CPA23-00001)
Dear Planning and Zoning Commissioners, City Staff, and Elected Officials,
Thank you for the opportunity to provide additional comments on the City of Boise’s Zoning Code Rewrite These comments primarily address the Assured Water Supply provisions found in section 11-04-010 of the Adoption Draft of the City of Boise Zoning Code Rewrite (dated February 2023) Today’s comments, and the attached memorandum of law, supplement the preliminary comments Veolia provided to the City of Boise (“City”) on March 21, 2023
Support for the rewrite e ort
We begin by commending the City and its Planning and Zoning Commission for the extraordinary effort they have undertaken in tackling a complete rewrite of the zoning code. The City wisely recognized that its zoning code is “fragmented, difficult to use, and difficult to administer ” ZOA23-00001 and CPA23-00001 at 5 The rewrite is a monumental task of great importance to the long-term success of the City. Sound City planning is critical to the success of Veolia and every other business enterprise invested in the City’s future
We agree with the City’s assessment that the existing code fails to fully reflect and implement the vision first articulated in Blueprint Boise that will allow increased density while protecting and revitalizing existing neighborhoods, promoting efficient intermodal transportation, facilitating complimentary mixed uses, and discouraging sprawl.
Striking this delicate balance is essential to achieving all the things that make Boise great Veolia commends the City for taking on this challenge.
Veolia has no concern and no comment with regard to what might be described as the traditional land use components of the proposed rewrite. Those are matters in which Veolia has
no particular expertise Accordingly, we defer to the input of the general public and the good work undertaken by the land use experts who fill the City’s ranks.
Veolia supports the City’s water conservation e orts
Veolia enthusiastically supports the water conservation and xeriscaping standards included in the proposed rewrite Adoption Draft § 11-04-09 3 E Water conservation is at the core of Veolia’s mission. The City’s requirements imposed on new development are aligned with Veolia’s efforts to promote water conservation through education and outreach These new code provisions fall squarely within the City’s responsibilities to regulate land use Veolia looks forward to further opportunities to share information and cooperate with the City in promoting these efforts
The Assured Water Supply requirements are redundant with IDWR review
Veolia’s principal concern is that the proposed Assured Water Supply requirements in section 11-04-010 overlap with the responsibilities of the Idaho Department of Water Resources (“IDWR”) Veolia is continually engaged with IDWR in review of its water rights and water supply 1 The requirement in the proposed rewrite that Veolia submit information quantifying its water rights, predicting long-term demand, and evaluating the gap between them fall squarely within IDWR’s exclusive jurisdiction Likewise, Veolia’s ongoing efforts to explore options for new water rights and associated infrastructure are matters that necessarily go before IDWR
The attached legal memorandum prepared by the Company’s external counsel addresses state law on this subject It concludes that the Assured Water Supply provisions may pass muster in other Western states, but not in the State of Idaho. As you are aware, Idaho municipalities are limited in their lawmaking authority, and the Idaho Legislature has expressly provided that IDWR’s jurisdiction over water rights is exclusive These legal hurdles, among others, are explored in depth in the attached memorandum.
The Assured Water Supply requirements are problematic for a regional water provider
Veolia is a regional provider of municipal water Boise customers comprise the largest segment of Veolia’s current certificated area and future planning area, but Veolia also serves customers in other cities and unincorporated areas Veolia is legally obligated to be consistent in how it provides services to all of its customers Likewise, Veolia’s water rights and infrastructure know no municipal boundaries. Accordingly, it is impossible to segregate how much water supply
1 Veolia is also under the jurisdiction of the Idaho Public Utilities Commission (“IPUC”), which has extensive authority to regulate this public utility Accordingly, Veolia’s investments in water supply are subject to additional scrutiny provided by this forum
Veolia holds for the City of Boise Nor can Veolia’s gap analysis and other aspects of its water supply planning be isolated to Boise customers. The same goes for its infrastructure.
If other municipalities were to adopt similar assured water supply requirements, they could reach conflicting conclusions regarding the adequacy of Veolia’s water supply and what steps should be taken to address future needs Veolia cannot place itself in the position of having its region-wide planning determined by a single municipal entity
Again, both IDWR and the IPUC already provide the necessary oversight
The Assured Water Supply requirements are unnecessary
The regulatory oversight of Veolia’s water supply by IDWR and the IPUC is a matter of public record which affords the City full access and the opportunity to participate Much, if not all, of what is sought by the City’s Assured Water Supply requirements is readily available in those forums Indeed, the City has participated in these forums, including in the development of Veolia’s 50-year planning exercise embodied in the Integrated Municipal Application Package (“IMAP”) proceeding under IDWR’s auspices.
Importantly, regulation by those state agencies is not the only source of water supply analysis Just last year, Veolia engaged HDR/SPF to undertake a comprehensive analysis of water supply options available to Veolia Treasure Valley Water-Supply Options to Meet Projected Municipal Demand (May 23, 2022) This analysis was a direct outgrowth of ongoing discussions between Veolia and the City.
Veolia remains committed to working with the City of Boise and all jurisdictions served by Veolia, and will continue to share information regarding the Company’s activities that address long-term water needs throughout the region That is a process grounded in trust and cooperation It is not a regulatory process
Veolia received inadequate prior notice
The City’s zoning rewrite has been underway for four (4) years. Like most Boise-area businesses, Veolia has been aware that an overhaul of the zoning code was underway However, given that Veolia is not in the “development business,” it has paid only passing attention to the zoning rewrite. As noted above, Veolia welcomes that effort, but defers to the City’s land use expertise in planning and zoning matters
The initial drafts contained no provisions addressing Assured Water Supply, and none would be expected because zoning codes in Idaho are ordinarily aimed at land use planning and zoning, not regional water supply Accordingly, Veolia was taken by surprise when the City first called the Company’s attention to these provisions on March 15, 2023.
Based on our review of the City’s website, it appears that the Assured Water Supply provisions first appeared in the July 2022 draft amendments (Modules 1 and 2). Thus, the City has contemplated these requirements for at least eight (8) months prior to the release of the Adoption Draft. During that time, Veolia and City staff met six (6) times, which included our contractually-required meeting last October 2022 at City Hall and a visit with Veolia leadership in August 2022, all part of our ongoing efforts to facilitate communication and cooperation regarding matters of mutual concern.
It is unfortunate that Veolia did not have an opportunity to express its concerns sooner so they could be taken into account before the very last stage of adoption of the zoning code. Accordingly, we take this opportunity to share our concerns respectfully and hope they will be received in this manner
Veolia remains firmly committed to its ongoing dialogue with the City and looks forward to its meeting with City representatives on April 21, 2023
Sincerely,
Marshall Thompson
V P & General Manager Veolia Water Idaho, Inc
Enclosed: Memorandum of Law (April 20, 2023)
cc: Tim Keane, Director of Planning and Development Services Jayme B Sullivan, Boise City Attorney
TO: Veolia Water Idaho Inc.
FROM: Christopher H. Meyer Michael P Lawrence
RE: Evaluation of the lawfulness of the “Assured Water Supply” and other provisions of Boise’s proposed Zoning Code Rewrite
DATE: April 19, 2023 (draft #5)
MEMORANDUM OF LAW Page 1 of 31 30-199: 16703439 17 docx (printed 4/19/2023 9:21 PM)
(1)
(b)
(1) LLUPA 14
(a) Idaho Code § 67-6502(b): One of LLUPA’s goals is to facilitate the provision of adequate public facilities and services. 14
(b) Idaho Code § 67-6508(h): Planning and zoning commissions are required to consider water supply in their comprehensive planning process 14
(c) Idaho Code §§ 67-6511(2)(a), 67-6512(a), 67-6512(d)(6) and 67-6512(d)(8): Municipalities may consider services provided by political subdivisions. 14
(d) Idaho Code § 67-6537(1): LLUPA requires that surface water be used for irrigation when available 16
(e) Idaho Code § 67-6537(4): Municipalities are required to consider the effect of their comprehensive plans on the source, quantity, and quality of ground water. 17
(2) EPHA 18
TABLE OF CONTENTS EXECUTIVE SUMMARY.................................................................................................. 4 DISCUSSION................................................................................................................. 6 I. The
supply 6
Idaho is a Dillon’s rule state. 6 B The municipal “police power” includes the power to zone but is constrained by the requirement that local regulation not be in conflict with other statutes. 7 C. IDWR has exclusive authority over water rights administration. 8
law governing municipal and IDWR authority over water
A.
Implied preemption analysis (Naylor Farms) 9
(2) Idaho Code § 42-201(7) 11
(a) The 2006 statute 11
Eagle Creek
D The Legislature has authorized municipalities to address water supply only in specifically defined circumstances. 13
Partners 12
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(a) Idaho Code § 39-126: The EPHA requires local governments to take ground water quality into account in their permitting decisions. 18
(3) County and city laws 19
(a) Idaho Code § 31-3805: Municipalities are required to assess the suitability of certain irrigation delivery systems to serve proposed developments. 19
(b) Idaho Code §§ 50-1326 through 50-1329 and 50-1334: Certifications are required on subdivision plats respecting water supply. 19
(c)
have authority to operate their own utilities providing water, sewer, and solid waste facilities, and flood control 20
E. In sum, what authority do municipalities retain over water supply? 21 II. The water conservation requirements............................................... 24 III. The Assured Water Supply requirements......................................... 24 A. The Assured Water Supply requirements invade the exclusive jurisdiction assigned to IDWR. 24 B The Assured Water Supply provisions impose obligations on “non-parties” to the entitlement process 27 C. The Assured Water Supply requirements violate the Idaho Constitution by regulating beyond the City’s corporate limits. 28 D. The Assured Water Supply requirements are modeled on other states whose law is different than Idaho’s. 29 E. The Assured Water Supply provisions have technical and other drafting errors that should be addressed 30 MEMORANDUM OF LAW Page 3 of 31 30-199: 16703439 17 docx (printed 4/19/2023 9:21 PM)
Municipalities
This memorandum addresses the lawfulness of the “Assured Water Supply” provisions in section 11-04-010 of the Adoption Draft of the City of Boise’s (“City” or “Boise”) Zoning Code Rewrite (dated February 2023). It concludes that these provisions violate the exclusive authority over water rights delegated to the Idaho Department of Water Resources (“IDWR” or “Department”) In addition, the provisions have two other problems touched on at the conclusion of the memorandum namely, that it imposes obligations on “non-parties” to the entitlement process and it violates the Idaho Constitution by attempting to regulate beyond the City’s corporate limits. Finally, the memorandum observes that assured water supply requirements at the municipal level appear to be lawful in Colorado and other states, but the law is different in Idaho.
The memorandum also addresses the water conservation requirements in section 11-04-09.3.E of the proposal. (These requirements are not part of the Assured Water Supply provisions ) It concludes that the conservation provisions do not invade IDWR’s jurisdiction and are therefore lawful and appropriate See discussion in sections I E and II .
In Idaho and all western states, the law of water rights and land use planning developed along entirely different paths which have intersected only recently.
The quick (and somewhat over-simplified) distinction is that IDWR has control over the appropriation, transfer, and administration of water rights in Idaho, while cities and counties (together, referred to as municipalities) have control over land use (including planning, zoning, and subdivision). A third entity, the Idaho Department of Environmental Quality (“IDEQ”), has jurisdiction over water quality. Finally, the Idaho Public Utilities Commission (“IPUC”) regulates public utilities including municipal providers of water, with particular attention to the rates they charge and the expenses they incur.
This memorandum focuses primarily on the intersection of the authority of IDWR and municipalities. In particular, it explores the extent to which IDWR’s exclusive authority over water rights administration limits the authority of municipalities to address or regulate water supply in the context of land use regulation.
Land use control and, in particular, the authority to zone, resides in Idaho cities and counties. Idaho is a Dillon’s rule state (as opposed to a home rule state), meaning that cities and counties have no inherent authority to legislate. Rather, their law-making power derives from authority expressly granted or necessarily implied by the Idaho Constitution or statutes
1
EXECUTIVE SUMMARY
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The authority of cities over land use and of IDWR over water are largely distinct. But they may overlap and come into conflict if IDWR attempts to guide land development through water rights administration or if municipalities attempt to regulate the public water supply.
IDWR’s exclusive control over water rights administration derives from two sources: (1) implied preemption analysis based on Idaho statutes assigning authority over water rights to IDWR, and (2) a 2006 statute expressly recognizing IDWR’s exclusive authority over water rights (Idaho Code § 42-201(7)). The former is addressed in an Idaho Supreme Court decision, Ralph Naylor Farms v. Latah Cnty. (“Naylor Farms”), 144 Idaho 806, 810, 172 P.3d 1081, 1085 (2007) (Trout, J. Pro. Tem.). The latter is addressed in an unappealed district court decision, Eagle Creek Partners, LLC v. Blaine Cnty., Case No. CR-2007-670, Idaho Dist. Ct., Fifth Judicial Dist. (May 6, 2008) (Robert J. Elgee, J.). Both concluded that IDWR’s jurisdiction is exclusive.
A handful of statutes grant municipalities limited authority to address water supply and related issues in specific contexts These statutes are addressed in section I D Some but not all of them were addressed by Naylor Farms and Eagle Creek Due to their limited scope, none of them provides a basis for municipalities to act in ways that infringe on IDWR’s exclusive authority to regulate the use of the public water supply.
The proposed Assured Water Supply provisions require municipal providers of water to obtain a certification from the City “as a Designated Water Provider by demonstrating it has an Assured Water Supply . . . . ” Adoption Draft § 11-04-010.3. To become certified, the municipal provider must make an extensive and costly showing, including documentation of the adequacy of its infrastructure, financial capability, and long-term water supply. Adoption Draft §§ 11-04-010.4.B, 11-04-010.4.C, and 11-04-010 4 D In addition, the provider must prepare an analysis of future water demand based on “reasonable population projections within the existing certificated area” and a “hydrological analysis demonstrating the physical water supply is sufficient to meet the total forecasted demand at full buildout.” Adoption Draft §§ 11-04-010.4 and 11-04-010.4.A.2.b. As discussed in section III.A , these requirements substantially overlap IDWR’s responsibilities and hence violate the Department’s exclusive jurisdiction over the appropriation of the state’s public surface and ground waters.
There are two other problems with the Assured Water Supply requirements.
First, as discussed in section III.B , the City imposes obligations on non-parties to entitlement applications namely, the so-called “Designated Water Providers.” The City plainly has jurisdiction to impose requirements on applicants for land use entitlements It is not evident what authority Boise has to require non-parties to appear before the City and demonstrate that its water business meets the City’s aspirations.
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Second, the Assured Water Supply provisions purport to regulate water supplies and water entities like Veolia whose water rights and infrastructure are parts of integrated diversion and delivery systems that extend outside of Boise. As discussed in section III.C , this violates the constitutional prohibition on city regulation outside of its corporate limits (including its area of city impact) The documentation and analysis required by the proposed Assured Water Supply provisions cannot be limited to water rights and infrastructure serving Boise residents, because neither Veolia’s rights nor its infrastructure is so confined. In apparent recognition of this, the proposed provisions expressly require analysis based on the entire certificated area. Hence the regulation is unlawfully extra-jurisdictional in operation.
2 DISCUSSION
I. THE LAW GOVERNING MUNICIPAL AND IDWR AUTHORITY OVER WATER SUPPLY A. Idaho is a Dillon’s rule state.
In “home rule” states, cities have broad authority to govern and need not rely on specific authorization Idaho is not a home rule state It is what is known as a “Dillon’s rule” state.1 In Dillon’s rule states, municipalities have only such authority as has been granted to them expressly or by necessary implication by the Idaho Constitution or statute.2
1 Dillon’s Rule is named after the Iowa Supreme Court Justice who authored it. Justice Dillon stated:
In determining the question now made, it must be taken for settled law, that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation—against the existence of the power.
Merriam v Moody’s Executors, 25 Iowa 163, 170 (1868) (Dillon, C.J.). In Merriam, the court invalidated the sale of a home for nonpayment of a special tax, noting that the Legislature authorized the tax, but did not expressly authorize the sale of property for nonpayment of the tax. The quoted passage is restated in nearly the same words in 1 J. Dillon, Commentaries on the Law of Municipal Corporations § 237 (5th Ed. 1911).
2 Bradbury v. City of Idaho Falls, 32 Idaho 28, 32, 177 P. 388, 389 (1918) (Morgan, J.) (quoting 1 Dillon on Municipal Corporations § 237 (5th ed.)); Caesar v State, 101 Idaho 158, 160, 610 P.2d 517, 519 (1980) (Donaldson, C.J.).
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B. The municipal “police power” includes the power to zone but is constrained by the requirement that local regulation not be in conflict with other statutes.
Idaho’s Constitution expressly requires legislative authorization for local taxation.3 Idaho Const. art. VII, § 6. In contrast, it grants the police power directly to cities and counties (without need for implementing legislation).
Local police regulations authorized. Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.
Idaho Const. art. XII, § 2 (emphasis added).
The police power includes the power to zone.4 Thus, cities lawfully engaged in zoning even before the first comprehensive land use planning statute was enacted in 1975 (the Local Land Use Planning Act (“LLUPA”), Idaho Code §§ 67-6501 to 67-6538) 5 Today, however, local authority over land use is controlled and constrained by the comprehensive regime set out in LLUPA as well as other statutes.
The key words in the constitutional grant of police power state (quoted above) that local regulations adopted pursuant to the police power not be “in conflict with its charter or with the general laws.” Idaho Const. art. XII, § 2.
Thus, the specific contours of LLUPA now constrain the authority of municipalities to engage in planning and zoning. And LLUPA is not the only constraint. In addition, and of particular note here, cities are constrained by other laws granting authority to other regulatory agencies, notably the Idaho Department of Water Resources
3 As a result, impact fees, connection or capitalization fees, service fees, and other land use fees all require statutory authority (except for those described as regulatory fees, which fall under the police power). This has given rise to a mountain of litigation in Idaho all of which underscores the limited scope of regulatory authority held by Idaho cities.
4 “The power of counties and municipalities to zone is a police power authorized by Art. 12, § 2 of the Idaho Constitution.” Gumprecht v. City of Coeur d’Alene, 104 Idaho 615, 617, 661 P.2d 1214, 1216 (1983), overruled on other grounds by City of Boise City v Keep the Commandments Coalition, 143 Idaho 254, 257, 141 P.3d 1123, 1126 (2006). See, Michael C. Moore, Powers and Authorities of Idaho Cities: Home Rule or Legislative Control?, 14 Idaho L. Rev 143, 154 (1977).
5 For example, Boise’s first zoning code was adopted in 1966, before the enactment of LLUPA in 1975.
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(“IDWR”). Where the Legislature has seen fit to grant implicitly or explicitly exclusive authority over water rights and water supply to the IDWR, municipalities may not rely on their police power to justify their own regulation of water supply. Doing so runs afoul of the Constitution’s requirement that local regulations not be “in conflict with . . . with the general laws ” Idaho Const art XII, § 2 More simply put, the authority of municipalities over water supply is preempted by the delegation of authority to IDWR This preemptive effect is discussed in section I.C immediately .
Hypothetically, any delegation of exclusive authority to IDWR could be overridden by clear legislative authority granted to municipalities over water rights and water supply. Accordingly, this memorandum evaluates all statutory provisions authorizing municipal involvement in matters relating to water. These authorities are discussed in section I.D . That evaluation demonstrates that these authorities are sharply limited. None would justify a departure from the conclusion that IDWR has exclusive authority over water rights and water supply Indeed, the expressly narrow range of municipal responsibilities described in these statutes reinforces the conclusion that municipal authority over water matters is not supported by an unbounded police power but is limited to those authorities set out in these statutes.
C. IDWR has exclusive authority over water rights administration.
IDWR’s exclusive control over water rights and the management of water supply finds support in both (1) a traditional implied preemption analysis based on the implicit effect of laws delegating regulatory authority over water use to IDWR, and (2) explicit preemption in the form of a 2006 statute, Idaho Code § 42-201(7). These are discussed in turn below.
(1) Implied preemption analysis (Naylor Farms)
IDWR traces its authority over water rights back to its predecessor, the Office of State Engineer, created in 1895 (five years after statehood). The Department’s authority is grounded in the State Constitution and buttressed by statutes dating to territorial times.6
6 Idaho Const. art. XV, approved in 1890, governs water rights. See, Dennis C. Colson, Water Rights in the Idaho Constitution, 53 Idaho Advocate, 20 (Dec. 2010). The first Idaho statute addressing water rights was enacted by the Territorial Legislature in 1881. 1881 Idaho Sess. Laws 273-75. The earliest parts of what is now Idaho’s water code (Title 42) date to 1899. 1889 Idaho Sess. Laws, pp. 380-87; 1901 Idaho Sess. Laws, pp. 191-201, in particular § 9b at p. 200-01 (codified to Idaho Code § 42-101). MEMORANDUM
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Since 1900, Idaho’s water code has assigned to the State the authority to control the distribution and use of water. Idaho Code § 42-101.7 “I.C. § 42-101 provides that control over the appropriation of water is vested in the State . . . . ” Naylor Farms, 144 Idaho at 810, 172 P.3d at 1085.
On the other hand, as discussed in section I.D , other statutes assign at least some responsibility for consideration of water quality and supply issues to other governmental entities
In Naylor Farms, the Court weighed the interaction among three of these statutes (Idaho Code §§ 42-101, 67-6537(4), and 39-126) and the county’s Groundwater Management Overlay Zone. Naylor Farms, 144 Idaho at 810, 172 P.3d at 1085.8 The Court agreed with the district court’s determination that the county’s ordinance was preempted by section 42-101 and was not saved by the other three statutes.
The case involved an ordinance adopted by Latah County creating the “Moscow Sub-basin Groundwater Management Overlay Zone.” The ordinance prohibited the county from accepting applications for specified new land uses that were found to consume large quantities of water (mineral extraction and processing, large CAFOs, and golf courses) Naylor Farms, 144 Idaho at 811, 172 P 3d at 1086 The ordinance was enacted as a direct response to the county’s failed protest of Naylor Farms’ application to IDWR for a ground water right for mineral extraction.
The district court applied the common law “implied preemption analysis” articulated in Envirosafe Services of Idaho, Inc. v. Cnty. of Owyhee, 112 Idaho 687, 689,
7 The very first section of Idaho’s water code, codified in 1900 and unchanged since then, assigns to the State control over Idaho’s water: Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a beneficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose Idaho Code § 42-101 (emphasis added).
8 The Naylor Farms decision did not address Idaho Code § 42-201(7) (then 42-201(4)), which was on the books at the time of the appeal but was not in effect during the relevant time.
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735 P.2d 998, 1000 (1987) (Huntley, J.). Naylor Farms, 144 Idaho at 810, n.1, 172 P.3d at 1085, n.1. It concluded that the assignment of control over water allocation to IDWR occupied the field and preempted Latah County’s ordinance. “The district court concluded that the effect of the Ordinance was to control access to water within the Groundwater Management Overlay Zone by controlling certain uses within that zone and therefore, there was an implicit conflict between the Ordinance and the general laws of the State.” Naylor Farms, 144 Idaho at 810, 172 P.3d at 1085. Thus, “the County’s actions were preempted by State law.” Naylor Farms, 144 Idaho at 811, 172 P.3d at 1086.
As for section 67-6537(4), “the [district] court concluded that the Ordinance went beyond considering the effects on water and, in effect, was an attempt to manage water in Idaho.” Naylor Farms, 144 Idaho at 810, 172 P.3d at 1085. In other words, the mandate to “consider” ground water in comprehensive planning is not authority to regulate or restrict the diversion of ground water See discussion of this statute in section I D(1)(e)
The Court also gave short shrift to section 39-126, which instructs local governments to “take into account” the effect of a permitted activity on ground water quality. See discussion in section I.D(2)(a) .
The county did not appeal, but Naylor Farms appealed the district court’s denial of its attorney fee request. Although the appeal was limited to the issue of attorney fees, the Idaho Supreme Court found it necessary to address the merits of the preemption issue in order to determine whether the county acted unreasonably. In so doing, the Idaho Supreme Court essentially upheld the district court’s preemption analysis. “[W]e respect the district court’s analysis of the Ordinance and preemption by State law . . . . ” Naylor Farms, 144 Idaho at 811, 172 P.3d at 1086. The Idaho Supreme Court not only agreed with (or at least “respected”) the district court’s preemption analysis, it also upheld the district court’s decision not to award attorney fees against the county because the preemption question was not well settled prior to Naylor Farms.
(2) Idaho Code § 42-201(7)
(a) The 2006 statute
In 2006, the Idaho Legislature enacted a statute intended to further shore up IDWR’s authority over water rights. 2006 Idaho Sess. Laws, ch. 256 (S.B. 1353) (now codified at Idaho Code § 42-201(7), originally codified as section 42-201(4)).
In a sense, Idaho Code § 42-201(7) may be seen as codifying the common law preemption analysis articulated a year later in Naylor Farms (that the statutory delegation of water right authority to IDWR occupies the field). In other words, any doubt about the strength of the Naylor Farms precedent is now resolved. The 2006 statute expressly
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delegates to IDWR “exclusive authority over the appropriation of the public surface water and ground waters of the state” and prohibits any other governmental entity from taking any “action to prohibit, restrict or regulate the appropriation” of water. It reads in full:
This title [Title 42] delegates to the department of water resources exclusive authority over the appropriation of the public surface and ground waters of the state No other agency, department, county, city, municipal corporation or other instrumentality or political subdivision of the state shall enact any rule or ordinance or take any other action to prohibit, restrict or regulate the appropriation of the public surface or ground waters of the state, and any such action shall be null and void.
2006 Idaho Sess. Laws, ch. 256 (S.B. 1353) (now codified at Idaho Code § 42-201(7), originally codified to Idaho Code § 42-201(4)) (emphasis added)
The legislation was a direct response to a draft ordinance contemplated by the City of Parma that would have required the City’s approval of any new ground water well The bill’s sponsors viewed this as an attempt by the City to usurp IDWR’s authority over water appropriation. Accordingly, the bill clarifies that local governments may not set up regulatory processes that mimic the responsibilities of IDWR regarding the appropriation of water.
The Statement of Purpose for the 2006 statute describes its goal as keeping IDWR and municipalities in their own lanes. While municipalities are forbidden from usurping IDWR’s authority over water rights, the statute is not intended to deprive municipalities of their power to zone. “It will have no impact on the zoning authority or other powers inherent in political subdivisions ”9
9 The Statement of Purpose reads in full: Title 42 of the Idaho Code delegates comprehensive authority to the Idaho Department of Water Resources over the appropriation of the waters of the State. This delegation of authority preempts other agencies and political subdivisions from regulating the appropriation of the public waters of the State. This legislation further clarifies these principles to ensure that no other agency or political subdivision takes any action which impinges upon the Department of Water Resource's exclusive jurisdiction over the appropriation of the waters of the state. The legislation will not affect the right of an agency or political subdivision to file a protest in a water right proceeding. It will have no impact on the zoning authority or other powers inherent in political subdivisions.
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(b) Eagle Creek Partners
No appellate case has addressed Idaho Code § 42-201(7). The only district court decision of which we are aware is Eagle Creek Partners, LLC v. Blaine Cnty., Case No. CR-2007-670, Idaho Dist. Ct., Fifth Judicial Dist. (May 6, 2008) (Robert J. Elgee, J.). In that case, the court invalidated a condition imposed on a subdivision approval found to be in violation of the 2006 statute
Eagle Creek Partners sought to subdivide 37-plus acres of farm land in the Ketchum area into four large residential lots The land was served by an irrigation company, which approved the development plan including the construction of five irrigation ponds intended to “gain a higher discharge for sprinkler irrigation systems.” Eagle Creek Partners at 2. In the subdivision hearing, IDFG and others raised concerns about possible adverse effects of the ponds on fish and wildlife. The county approved the subdivision, subject to a condition requiring the developer fill in (i.e., obliterate) the ponds (which it had already built after receiving approval from the irrigation company) and devise a more efficient water distribution system
The district court found this condition violated recently enacted Idaho Code § 42-201(4) (now 42-201(7)):
Thus, the first question is whether the County’s action, in requiring Condition 1, constitutes a restriction or regulation on Eagle Creek’s appropriation. The Court concludes that it does. . . . . Making a determination that Eagle Creek could come up with a more efficient system is no different than telling Eagle Creek it has too much water, or does not need the water it has, or there are other beneficial uses that the water should be applied to. . . .
The Court also concludes the County cannot measure or regulate efficiency of water use; Regulating or managing efficiency is measuring or restricting or regulating beneficial use and the process of applying water to its beneficial use a uniquely state function.
Eagle Creek Partners at 7-8 (emphasis original).
Blaine County pointed to Idaho Code § 31-3805(1)(b)(iii) as a way around the 2006 statute. (See discussion in section I.D(3)(a) .) The county contended section
There would also be no impact on private contracts, covenants, or restrictions.
Statement of Purpose, R.S. 15889 (which became S.B. 1353, now codified at Idaho Code § 42-201(7)).
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31-3805(1)(b)(iii) provides a specific grant of authority to evaluate and approve an applicant’s water delivery system. The district court disagreed, holding that this statute only requires municipalities to evaluate the suitability of the delivery system to deliver water so that the buyer of property may be informed thereof. It does not authorize the county to require the developer to design and construct what the county perceives to be a better delivery system
The district court did not address Idaho Code § 67-6537(4) (the statute requiring municipalities to “consider” the impact of its comprehensive plan on ground water, see discussion in section I.D(1)(e) )10 or Idaho Code § 39-126 (requiring local governments to take ground water quality into account, see discussion in section I.D(2)(a) ). Presumably, that was because the proposed development used surface water. Nor did the court mention the recently-decided case of Naylor Farms.
D. The Legislature has authorized municipalities to address water supply only in specifically defined circumstances.
The following statutes contain provisions dealing with the authority of municipalities to address water quality and/or water supply.
(1) LLUPA
(a) Idaho Code § 67-6502(b): One of LLUPA’s goals is to facilitate the provision of adequate public facilities and services.
The introductory section of LLUPA lists its goals. One is “To ensure that adequate public facilities and services are provided to the people at reasonable cost.” Idaho Code § 67-6502(b). This objective is implemented through any number of requirements in LLUPA from comprehensive planning to the establishment of areas of city impact all of which are intended to foster the efficient provision of public services It is an aspirational goal, not an extension of additional regulatory authority Moreover, the goal emphasizes reasonable cost, which weighs against the imposition of unnecessary new burdens on those who provide municipal water.
10 The district court made a passing reference to section 67-6537, but that was in the context of the “surface water only” requirement in section 67-6537(1). Eagle Creek Partners at 6.
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(b) Idaho Code § 67-6508(h): Planning and zoning commissions are required to consider water supply in their comprehensive planning process.
Idaho Code § 67-6508(h) instructs planning and zoning commissions to conduct a comprehensive planning process that considers a long list of components, including “water supply ” The statute does not provide any regulatory authority with respect to water supply in the comprehensive planning process
(c) Idaho Code §§ 67-6511(2)(a), 67-6512(a), 67-6512(d)(6) and 67-6512(d)(8): Municipalities may consider services provided by political subdivisions.
Three provisions of LLUPA authorize municipalities to address impacts of development on public facilities or services provided by political subdivisions.
The rezone provision of LLUPA states:
Particular consideration shall be given to the effects of any proposed zone change upon the delivery of services by any political subdivision providing public services, including school districts, within the planning jurisdiction.
Idaho Code § 67-6511(2)(a) (emphasis added).
The section of LLUPA dealing with conditional use permits authorizes municipalities to take into account the public services that will be required by the development
A special use permit may be granted to an applicant if the proposed use is conditionally permitted by the terms of the ordinance . . ., subject to the ability of political subdivisions, including school districts, to provide services for the proposed use . . . .
Idaho Code § 67-6512(a) (emphasis added). This section then sets out a non-exclusive list of conditions that may be imposed on a CUP. The first allows conditions “[r]equiring the provision for on-site or off-site public facilities or services.” Idaho Code § 67-6512(d)(6). The second authorizes conditions “[r]equiring mitigation of effects of the proposed development upon service delivery by any political subdivision, including school districts, providing services within the planning jurisdiction ” Idaho Code § 67-6512(d)(8).
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These sections are limited to addressing impacts on services provided by “political subdivisions.”11 Thus, it appears that municipalities have authority to consider and to
11 LLUPA contains no definition of political subdivision. The term is defined in various contexts elsewhere in the Idaho Code. E.g., Idaho Code §§ 6-902(2), 7-1303(6), 12-117(6)(b), 42-3207, 44-2013(2)(a), 42-3218C, 46-1002(4), 50-3002(12), 56-1402(5), 58-1102(c), 59-802(5); 63-3622O(2)(j), and 67-2809(2)(b)(i).
All the statutory definitions, and common usage, recognize that political subdivisions are limited to governmental entities with the power to tax. Some definitions are narrow. For example, the Idaho Video Service Act limits the term to cities and counties. Idaho Code § 50-3002(12). At the other end of the spectrum is the Idaho Sales Tax Act which includes this broad definition:
“Political subdivision” means:
(i) A governmental organization that:
1. Embraces a certain territory,
2. Is organized for public advantage and not in the interest of private individuals or classes,
3. Has been delegated functions of government, and
4. Has the statutory power to levy taxes; or
(ii) A public health district created by section 39-408, Idaho Code; or
(iii) A soil conservation district as defined in section 22-2717, Idaho Code; or
(iv) A drainage district created pursuant to chapter 29, title 42, Idaho Code; or
(v) An irrigation district created pursuant to title 43, Idaho Code; or
(vi) A state grazing board created by section 57-1204, Idaho Code; or
(vii) A water measurement district created pursuant to section 42-705 or 42-706, Idaho Code; or
(viii) A ground water management district created pursuant to chapter 51, title 42, Idaho Code. Idaho Code § 63-3622O(2)(j).
There is no doubt that water and sewer districts are political subdivisions of the state. “The judges of election shall certify the returns of the election to the district court having jurisdiction. If a majority of the votes cast at said election are in favor of the organization, the district court shall declare the [water or sewer] district organized and give it a corporate name by which, in all proceedings, it shall thereafter be known, and designated the first board of directors elected, and thereupon the district shall be a governmental subdivision of the state of Idaho and a body corporate with all the powers of a public or quasi-municipal corporation.” Idaho Code § 42-3207 (providing for the creation of water and sewer districts) (emphasis provided). See also, Idaho Code § 42-3218C (“Each water or sewer subdistrict created and established as provided in sections 42-3218A through 42-3218D, Idaho Code, shall be a political subdivision of the state of Idaho.”).
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impose requirements aimed at mitigating the impacts of a rezone or conditional use permit on the ability of a water and sewer district (for example) to provide services to a proposed development. But this statutory authority is limited to political subdivisions and does not address the ability of non-governmental entities (such as Veolia) to provide water service
(d) Idaho Code § 67-6537(1): LLUPA requires that surface water be used for irrigation when available.
In 2005, the Idaho Legislature enacted legislation requiring land developers to provide for surface water for lawn irrigation systems if possible. 2005 Idaho Sess. Laws, ch. 338) (H.B. 281a) (codified at Idaho Code § 67-6537) (sponsored by Rep. Mike Moyle).12 “All applicants proposing to make land use changes shall be required to use surface water, where reasonably available, as the primary water source for irrigation.” Idaho Code § 67-6537(1). This mandate is driven by the assumption that ground water (which typically does not require treatment to be used as drinking water and which is available year-round) is more precious than surface water
The legislation is not directed to IDWR Instead, it amended LLUPA, which governs planning and zoning actions by cities and counties.
The 2005 act applies to any applicant “proposing to make land use changes ” That is very broad, presumably including zoning changes, conditional use permits, planned unit developments, annexations, or any other application for a new land use.
Nothing in this statute authorizes municipalities to regulate water supplies, other than to require that surface water be used when reasonably available.
The same is true for irrigation districts. Bettwieser v. New York Irrigation Dist., 154 Idaho 317, 329, 297 P.3d 1134, 1146 (2013) (holding that an irrigation district is a political subdivision within the meaning of section 12-117). It is equally clear that public utilities, which have no governmental or taxing authority, are not political subdivisions.
12 Idaho Code § 67-6537 was first enacted as a part of the Ground Water Quality Protection Act of 1989, 1989 Idaho Sess. Laws, ch. 421. At that time, it contained only what is now codified, as amended, as Idaho Code § 67-6537(4). In 1989, it simply required local governments to “consider the effect the proposed amendment, repeal or adoption of the comprehensive plan would have on the quality of ground water in the area.” It was not until 2005 that section 67-6537 was substantially amended to add the mandate in section 67-6537(1) that developers use surface water when available. 2005 Idaho Sess. Laws ch. 338. The 2005 amendment recodified the original section 67-6337 to 67-6537(4) and amended it to include consideration of the source and quantity (as well as quality) of ground water in the area.
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(e) Idaho Code § 67-6537(4): Municipalities are required to consider the effect of their comprehensive plans on the source, quantity, and quality of ground water.
In 1989, as part of larger legislation expanding IDEQ’s role in ground water protection, the Idaho Legislature enacted a law requiring municipalities to address ground water impacts when updating their comprehensive plans 1989 Idaho Sess Laws, ch 421 (now codified at Idaho Code § 67-6537(4)) (see footnote 12 ). The provision, as amended in 2005, reads:
When considering amending, repealing or adopting a comprehensive plan, the local governing board shall consider the effect the proposed amendment, repeal or adoption of the comprehensive plan would have on the source, quantity and quality of ground water in the area.
Subsection 67-6537(4).
A comprehensive plan, as its name implies, articulates goals and objectives that will shape future growth within the geographic boundaries of the city or county. Idaho Code § 67-6508 These are broad, conceptual planning documents, not descriptions of what is allowed under current zoning “This Court has held that a comprehensive plan does not operate as legally controlling zoning law, but rather serves to guide and advise the governmental agencies responsible for making zoning decisions.” Urrutia v. Blaine Cnty., 134 Idaho 353, 357-58, 2 P.3d 738, 742-43 (2000) (Trout, C.J.)
In Naylor Farms (discussed in section I.C(1) ), the Court agreed with the district court’s finding that the mandate to “consider” ground water impacts in the context of a comprehensive plan does not overcome IDWR’s exclusive authority and does not authorize municipalities “to manage water in Idaho.” Naylor Farms, 144 Idaho at 810, 172 P 3d at 1085
(2) EPHA
(a) Idaho Code § 39-126: The EPHA requires local governments to take ground water quality into account in their permitting decisions.
The Idaho Environmental Protection and Health Act (“EPHA”), Idaho Code § 39-101 to 39-130, established the Idaho Department of Environmental Quality
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(“IDEQ”).13 A provision of this statute instructs local governments to take ground water effects into account in their permitting decisions. Idaho Code § 39-126(2). However, the next subsection cautions local governments not to second guess the decisions of other state agencies that already have addressed the ground water quality issue. Idaho Code § 39-126(3)
The regulatory authority granted by this statute is limited in several ways First, it is limited to “a permit or license that deals with the environment ” Arguably, that does not include permits and other entitlements issued under LLUPA or the subdivision statute. Second, the statute is limited to ground water quality; it does not extend to ground water supply or quantity issues. Third, as noted, subsection (3) prohibits local governments from acting where state agencies already have addressed the water quality issue. Fourth, subsection (4) expressly addresses preemption: “Nothing contained in this section shall be deemed to permit cities, counties or other political subdivisions of the state to regulate ground water quality with respect to any activity for which another statute or other statutes may have expressly or impliedly preempted such local ground water quality regulation.”
Perhaps these limitations are the reason section 39-126 was given short shrift in Naylor Farms (see discussion in section I.C(1) ).
(3) County and city laws
(a) Idaho Code § 31-3805: Municipalities are required to assess the suitability of certain irrigation delivery systems to serve proposed developments.
Idaho Code § 31-3805 sets out requirements for the subdivision of property within the boundaries of irrigation districts, canal companies, and the like.14 For cities, “the irrigation system must be approved by the city zoning authority or city council, as provided by ordinance, with the advice of the irrigation entity charged with delivery of water to said lands ” Idaho Code § 31-3805(1)(b)(i) Similar provisions address subdivisions within the area of city impact (section 31-3805(1)(b)(ii)) and other unincorporated areas of the county (section 31-3805(1)(b)(iii)).
The functionally identical subsection applying to unincorporated areas (section 31-3805(1)(b)(iii)) was addressed in Eagle Creek Partners (see discussion in section
13 Section 39-126 was enacted by 1989 Idaho Sess. Laws ch. 421, with non-substantive amendments in S.B. 1426, 2000 Idaho Sess. Laws ch. 132.
14 Note that sections 31-3805 and 67-6537 are crossed referenced by LLUPA in Idaho Code § 67-6519(4).
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I.C(2)(b) ). The district court ruled that this provision did not overcome the exclusive authority granted to IDWR under Idaho Code § 42-201(7) (then codified at section 42-201(4)). The court said that section 31-3805 is essentially “a consumer protection statute, designed to insure a buyer of land in an irrigation district (under a proposed subdivision) either gets the water he is entitled to from the water provider, or receives notice that he is still liable for assessments for that water ” Eagle Creek Partners at 9 The court continued: “The statute does not go on to provide the County the authority to approve or deny the subdivision on that basis, or to require modifications acceptable to the County . . . . ” Eagle Creek Partners at 10.
In short, section 31-3805 calls for evaluation and notice to the purchaser of land regarding the adequacy of irrigation delivery systems operated by irrigation entities, but the statute includes no regulatory authority over those delivery systems.
(b) Idaho Code §§ 50-1326 through 50-1329 and 50-1334: Certifications are required on subdivision plats respecting water supply.
Sections 50-1326 through 50-1329 of the Municipal Code provide that all subdivision plats (except for agricultural land) are subject to a “sanitary restriction ” The sanitary restriction may be satisfied by providing a certificate of approval issued by IDEQ with respect to water and sewer facilities.
Similarly, section 50-1334 requires persons filing subdivision plats to certify that the lots will be served by either (1) individual wells, (2) an existing water system, or (3) a new water system.15
15 More specifically, the act requires certification that at least one of the following is the case:
(1) The individual lots described in the plat will not be served by any water system common to one (1) or more of the lots, but will be served by individual wells.
(2) All of the lots in the plat will be eligible to receive water service from an existing water system, be the water system municipal, a water district, a public utility subject to the regulation of the Idaho public utilities commission, or a mutual or nonprofit water company, and the existing water distribution system has agreed in writing to serve all of the lots in the subdivision.
(3) If a new water system will come into being to serve the subdivision, that it has or will have sufficient contributed capital to allow the water system’s wells, springboxes, reservoirs and mains to be constructed to provide service without further connection charges or fees to the landowners of the lots, except for connection of laterals, meters or other plant exclusively for the lot owner ’s own use.
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These provisions are directed to the county clerk and recorder and to IDEQ. They extend no authority to municipalities.
(c) Municipalities have authority to operate their own utilities providing water, sewer, and solid waste facilities, and flood control.
In addition to the specific authorities addressed above, municipalities have broad authority to construct and operate their own sewer systems, to require landowners to connect to them, to issue bonds and to impose ad valorem taxes, user fees, and hook-up or capitalization fees to pay for the systems, and/or to require developers to construct their own centralized sewer systems.
Other statutes authorize cities to establish and operate their own domestic water systems and solid waste facilities and to impose user fees, etc. to finance these systems.
In addition, Idaho cities have express authority to engage in activities relating to drainage and flood prevention and to impose the cost thereof on property owners.
The voluminous body of law on this subject is addressed in the Idaho Land Use Handbook.
None of these constitute authority to regulate the public water supply.
E. In sum, what authority do municipalities retain over water supply?
As discussed above, the Legislature has given municipalities express authority over water quality and supply in the following areas However, these statutory authorities are specific and limited in scope to the following:
● Municipalities are obligated to “consider” the source, quantity, and quality of ground water in developing their comprehensive plans. Idaho Code § 67-6537(4) (see section I.D(1)(e) ).
● Similarly, they must include a discussion of “water supply” when updating their comprehensive plans Idaho Code § 67-6508(h) (see I D(1)(b) )
● Municipalities must take ground water quality into account in certain permitting decisions. Idaho Code § 39-126 (see section I.D(2)(a) ).
● Municipalities must ensure that new developments seeking land use entitlements employ surface water when it is available. Idaho Code § 67-6537(1) (see section I D(1)(d) )
Idaho Code § 50-1334.
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● At the time of subdivision, municipalities must assess the suitability of water delivery systems operated by certain irrigation entities. Idaho Code § 31-3805 (see section I.D(3)(a) ).
● LLUPA’s rezone and conditional use permit provisions authorized municipalities to address impacts of development on public facilities or services that are provided by political subdivisions (e.g., schools and water and sewer districts). Idaho Code §§ 67-6511(2)(a), 67-6512(d)(6), 67-6512(a), and 67-6512(d)(8) (see section I.D(1)(c) ).
● LLUPA’s statement of goals, Idaho Code § 67-6502(b) (see discussion in section I.D(1)(a) ) speaks of facilitating the availability of adequate public facilities and services at reasonable cost. This is a goal, not a grant of regulatory authority.
● Sections 50-1326 through 50-1329 of the Municipal Code make subdivision plats subject to a “sanitary restriction” requiring the land owner to secure a certificate from IDEQ showing that private or public water and sewer have been provided. Similarly, section 50-1334 requires certification by persons filing plats that the new lots will be served by a private or public water supply. (See section I.D(3)(b) .)
● Municipalities have broad authority to operate their own utilities providing water, sewer, solid waste, and flood control service to city residents. (See section I.D(3)(c) ).
Beyond that, municipal ordinances or actions that impair, override, second-guess, or otherwise implicate IDWR’s water right administration or which limit the ability of water right holders to exercise their water rights are likely to be deemed “null and void” under Idaho Code § 42-201(7) and other statutes assigning water right authority to IDWR.
If the teaching of Naylor Farms and Eagle Creek Partners is followed, municipalities will find themselves on thin ice if their regulation of municipal water supply or delivery systems steps beyond the express authorities discussed above.
On the other hand, IDWR is not in the business of managing sewer systems or water quality in general. Accordingly, it would seem that Idaho Code § 42-201(7) should not be read to limit the authority of local governments to address water quality concerns via requirements for sewer connections or the construction of a central sewer system. Indeed, local governments routinely impose such requirements, often supported by bonds and fees to cover the cost of sewer services See discussion in section I D(3)(c)
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Whether municipalities have the authority to impose a requirement to construct or connect to a central water delivery system is perhaps a closer call. If such a requirement is framed as matter of water quality protection (to avoid aquifer contamination from multiple individual wells) it would seem to be justified for the same reasons as requiring a central sewer system 16 The argument that cities retain their long-standing authority to impose such requirements is strengthened by Idaho Code § 42-201(7)’s Statement of Purpose, which says that the 2006 bill is intended to “have no impact on the zoning authority or other powers inherent in political subdivisions.” See footnote 9 .
That said, it is reported that “some local governments do not require developers to install community wells because of concerns that they are prohibited from doing so under section 42-201(7) of the Idaho Code.” Nathan Bracken, Exempt Well Issues in the West, 40 Envtl. L. 141, 216 (2010) (citing a 2009 email communication from Jeff Peppersack of IDWR).
The decision in Eagle Creek Partners (overturning Blaine County’s requirement that a developer remove its irrigation ponds and design something more efficient) might be read to prohibit municipalities from requiring developers to employ efficient lawn and open space irrigation systems. We suggest that is going too far. Eagle Creek Partners should be limited to the circumstances of that case namely, municipal regulation imposed directly on the holder of water rights or entitlements. (The developer, Eagle Creek Partners, was the beneficial owner of the water rights at issue.) Where water is supplied to a development by a third party (e.g., a municipal provider), the concern raised by the court in Eagle Creek Partners does not arise. Thus, requiring a developer to install efficient irrigation equipment is no different than requiring the installation of low-flow toilets or xeriscaping These reduce water demand without interfering with or second-guessing IDWR’s determination of whether someone’s water rights are rightly sized (as was the case in Eagle Creek Partners).
Some municipal jurisdictions require an applicant for development to provide a “will serve” letter from the water supplier. For example, Ada County requires such letters at the time of preliminary plat for planned communities. Ada County Code § 8-6-3(L)(3)(f). Curiously, the current Boise City Code contains no similar provision.
16 A requirement for central water and sewer was upheld in a case that pre-dated Idaho Code § 42-201(7). In Sanders Orchard v. Gem Cnty., 137 Idaho 695, 702, 52 P.2d 840, 847 (2002), the Court vacated the county’s denial of a subdivision plat on the basis of the developer ’s failure to provide for a central water and sewer system. The Court found that there was no evidence in the record to support the county’s factual conclusion that sewer would soon be extended to the area. However, the Court made clear that the county had the authority to consider the feasibility of installing central water and sewer. Indeed, the Court strongly implied that the county could have simply mandated such a requirement without need for individual factual determinations. Sanders, 137 Idaho at 702-03, n.6, 52 P.3d at 847-48, n.6.
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Nor does the proposed Zoning Code Rewrite (except in the context of the “Assured Water Supply” requirement). Although there is no statute specifically authorizing municipalities to require “will serve” letters (confirming that water can and will be provided by a municipal water provider or other source), such authority may be found within the statutes discussed in section I D(1)(c) to the extent the water service is provided by a political subdivision Even in the absence of specific authorizing legislation, a requirement for a “will serve” letter probably falls within the municipal police power, which is not preempted because it entails no exercise of regulatory power by the municipality over the water supply.
Similarly, a municipality may require an applicant that is not served by a municipal provider (but is instead relying on wells or a private water system for the development) to provide documentation that it has secured or will secure water rights to support the use.
Whether a municipality can require a municipal provider to document its water rights is seemingly no different than requiring an applicant for a land use permit to provide a “will serve” letter or to document its own water rights However, it is problematical to impose such a requirement on a non-party (i e , on an entity like Veolia that generally is not a party to land use applications). (See discussion in section III.B .)
The law establishing that IDWR has exclusive authority to regulate use of the public water supply does not mean that local governments are obligated to grant every planning and zoning request simply because the applicant has obtained a water right for its project. But just where the line is between legitimate local regulation (e.g., requirements for water service connections and “will serve” letters) and improper intrusions into IDWR’s and the IPUC’s authority remains to be worked out. In any event, it is evident that the Legislature and the courts have moved in the direction of limiting municipal authority over water supply to actions that are expressly authorized by statute or exercises of the police power (e.g., water quality protection) that do not infringe on IDWR’s authority over the public’s use of state’s water resources.
II. THE WATER CONSERVATION REQUIREMENTS
The water conservation requirements in the Zoning Code Rewrite (Adoption Draft § 11-04-09.3.E) are appropriate, lawful, and reflect good public policy. (These provisions immediately precede the Assured Water Supply provisions.)
As discussed in section I.E , the holding in Eagle Creek Partners should be limited to circumstances where a municipality seeks to regulate or control the use of water rights owned by the applicant. Where water used in a development is supplied by a third party (such as Veolia) requirements aimed at reducing city-wide water demand (e g , requiring xeriscaping, low-flow toilets, or efficient lawn irrigation systems) are appropriate
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exercises of the police power because they do not implicate IDWR’s determinations respecting the beneficial use of specific water rights.
III. THE ASSURED WATER SUPPLY REQUIREMENTS
A. The Assured Water Supply requirements invade the exclusive jurisdiction assigned to IDWR.
For four years, Boise has been engaged in a comprehensive rewrite of its zoning code (Title 11 of the Boise City Code, also known as the development code) Initially, the revisions were aimed at what might be called traditional planning and zoning functions. The July 2022 draft was the first to contain the provision entitled “Assured Water Supply.” That provision now appears in section 11-04-010 of the Adoption Draft dated February 2023 (pp. 295-98).
The Assured Water Supply provisions are aimed at two types of entities: applicants for land use entitlements and municipal water providers. The discussion in this memorandum is limited to the latter.
The City’s proposal requires a “municipal provider of water as a public utility, with a service area within the City limits or the City Area of Impact to be certified as a Designated Water Provider by demonstrating it has an Assured Water Supply ” Adoption Draft § 11-04-010.3. To our knowledge, Veolia and Capital Water Corporation are the only entities that are regulated public utilities providing municipal water supply within the City of Boise’s city limits or area of city impact, and therefore implicated by this provision (Veolia, of course, being the City’s primary provider of municipal water supply).
To become certified as a “Designated Water Provider”, the municipal provider must make extensive showings regarding the adequacy of its water rights, infrastructure, finances, etc Adoption Draft § 11-04-010 3
These Assured Water Supply provisions substantially overlap the authority and function of IDWR IDWR is charged with regulating both new appropriations and the transfer of existing water rights of municipal providers. Both entail extensive regulatory requirements and exhaustive analysis by the Department of the documentation provided by municipal providers.
A case in point is Veolia’s Integrated Municipal Application Package (“IMAP”). This was a transfer application filed by Veolia (then known as United Water Idaho, Inc.) seeking “reasonably anticipated future needs” (“RAFN”) approval for 103 ground and
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surface water rights. Boise City participated in the IMAP proceeding.17 In the course of that proceeding, Veolia thoroughly documented the size and operation of its water rights portfolio and undertook a projection of its water needs over a 50-year planning horizon.
For example, on September 23, 2017, Veolia (at that time known as SUEZ Water Idaho Inc. or “SUEZ”) submitted a 334-page Master Water Plan for the Years 2015 to 2065 which documented and explained the company’s long-term water demand and supply, including a “gap analysis” comparing the two It also documented the company’s water conservation efforts and their impact on long-term water demand.
More recently, on November 30, 2020, SUEZ submitted two additional documents in the IMAP proceeding: SUEZ’s Response to IDWR’s Staff Memo and Declaration of Michael P. Lawrence Re Memorandum Analyzing Staff Memo Attachments 1 and 2. The first was 154 pages. It updated the gap analysis (among other things). The second included a so-called “side memo” numbering 137 pages explaining and updating the quantification of the company’s water rights portfolio. Quantification of such a complex portfolio is not a simple matter of summing the face value of individual diversion rates It is an extraordinarily complex undertaking involving combined use conditions, volume limits, seasonal limits, and other complexities.
These submissions are the tip of the iceberg in terms of the documentation that has been provided by Veolia documenting its water rights and water supply, and its 50-year demand projection. As a party to the IMAP, the City was served with copies of all documentation and pleadings.
These IMAP submissions are redundant with Boise’s proposed requirement that the municipal provider provide “A copy of the water right permit(s) or license(s) issued by the Idaho Department of Water Resources.” Adoption Draft § 11-04-010.4.A.2.a. If Boise simply wants a list of Veolia’s water rights “for the file” that is not particularly troubling Indeed, Boise already has the list
But if the City intends to second guess IDWR’s quantification and/or evaluation of (1) Veolia’s water rights portfolio, (2) Veolia’s 50-year demand projection, (3) the gap analysis of Veolia’s water supply, (4) the adequacy of the physical water supply supporting Veolia’s water rights, (5) Veolia’s water conservation efforts, or (6) any other aspect of Veolia’s water rights, each of those would be a plain violation of the exclusive authority assigned by the Legislature to IDWR.18
17 On July 17, 2012, the City of Boise filed a pleading in the IMAP contested case withdrawing its Protest and requesting that its status be changed to Intervenor in Support.
18 Among the many statutes setting out IDWR’s authority to evaluate and regulate water use are the following. Idaho Code § 42-203A(5)(b) (requiring the Director to reject a water right application if “the water supply itself is insufficient for the purpose for which it is sought to be
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It is evident that Boise’s proposed Zoning Code Rewrite contemplates far more than a list of Veolia’s water rights. For instance, it requires that Veolia prepare a “hydrological analysis demonstrating the physical water supply is sufficient to meet the total forecasted demand at full buildout.” Adoption Draft § 11-04-010.4.A.2.b. This shows that Boise intends to second guess the gap analysis undertaken by IDWR, substituting its own gap analysis based on physical water supply Doing so invades IDWR’s authority to administer the state’s public waters and ignores the state’s body of water law that allows market forces to work efficiently in response to water scarcity that might require curtailment during priority administration.
The same goes for the proposed requirement that Veolia prepare an analysis of future water demand based on “reasonable population projections within the existing certificated area.” Adoption Draft § 11-04-010.4. This is patently redundant with the 50-year demand forecast Veolia was required to prepare for IDWR in order to show that its water rights were held for “reasonably anticipated future needs” pursuant to Idaho Code § 42-202B(8) (requiring submission of a demand forecast based on “population and other planning data” of future needs that “are reasonably expected to be required within the planning horizon of each municipality within the service area”). Again, if all the City wants is for Veolia to provide this same analysis to the City (which it already has), then this requirement is not an issue. But if the City wants Veolia to update this analysis more frequently than IDWR requires, or second guess IDWR conclusions concerning the analysis, that would violate IDWR’s exclusive authority.
Finally, there are requirements that Veolia demonstrate the adequacy of its infrastructure, financial capability, and water supply Adoption Draft §§ 11-04-010 4 B, 11-04-010 4 C, and 11-04-010 4 D These, too, are responsibilities expressly assigned by statute to IDWR.
appropriated”); Idaho Code § 42-203A(5)(c) (requiring the Director to reject a water right application “where it appears to the satisfaction of the director that such application is not made in good faith, is made for delay or speculative purposes”); Idaho Code § 42-203A(5)(d) (requiring the Director to reject a water right application if “the applicant has not sufficient financial resources with which to complete the work involved therein”); Idaho Code §§ 42-203A(5)(e) and 42-202B(3) (requiring the Director to reject a water right application that “will conflict with the local public interest” in “the effects of such use on the public water resource”) (repeated in Idaho Code § 42-222(1)); Idaho Code § 42-203A(5)(f) (requiring the Director to reject a water right application that “is contrary to conservation of water resources within the state of Idaho”) (repeated in Idaho Code § 42-222(1)); Idaho Code § 42-203A(5)(g) (requiring the Director to reject a water right application that “that it will adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or local area where the source of water originates”) (repeated in Idaho Code § 42-222(1)).
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It may be that the measures set out in Boise’s proposed Zoning Code Rewrite vary in some ways with how IDWR’s responsibilities have been described by the Legislature. But that is precisely the problem. The Legislature has articulated in substantial detail (see footnote 18 ) when and how IDWR is to undertake the evaluation of proposed uses of the public water supply IDWR’s authority in this regard “occupies the field ” Boise City cannot lawfully evade the exclusivity of that assignment by re-phrasing, re-framing, or expanding the scope of the analysis.
B. The Assured Water Supply provisions impose obligations on “non-parties” to the entitlement process.
It is unclear what authority the City believes it has to require municipal providers to seek certification as a Designated Water Provider. LLUPA authorizes cities to require applicants for land use entitlements to seek approvals and subject themselves to standards and conditions Accordingly, the development code is directed to applicants for land use entitlements.
The proposed Zoning Code Rewrite goes beyond this It imposes requirements on “non-parties” those who are not applying for entitlements. Specifically, it purports to compel municipal providers like Veolia to appear before the City and satisfy requirements that have nothing to do with any application for entitlement filed by the municipal provider.
C. The Assured Water Supply requirements violate the Idaho Constitution by regulating beyond the City’s corporate limits.
The proposed requirements in the Zoning Code Rewrite are troubling as well in that they contemplate Boise City’s review and oversight of water rights and supply that extend beyond the city limits and even beyond area of city impact. Veolia is a regional supplier of municipal water. Its water rights and water supply infrastructure extend by the City’s jurisdiction. Even if Boise had authority to evaluate and regulate the water rights and water supply strategy of entities operating solely within the City (which it does not), it plainly has no authority to regulate water issues or anything for that matter outside its corporate limits.
Article XII, section 2 of the Idaho Constitution prevents a city from exercising jurisdiction outside its boundaries. Reardon v. Magic Valley Sand and Gravel, Inc., 140 Idaho 115, 120, 90 P.3d 340, 345 (2004) (awarding attorney fees against a city and county for adopting ordinances which purported to authorize the city to exercise jurisdiction within its ACI: “This Court recognized as far back as 1949 that a city’s exercise of jurisdiction in an impact area lying beyond a city’s limits is inconsistent with the
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constitutional limitations placed on a city’s powers by Article XII, § 2 of the Idaho Constitution.”).19
Reardon followed and confirmed the holding in Blaha v. Bd. of Ada Cnty. Comm’rs (“Blaha II”), 134 Idaho 770, 9 P.3d 1236 (2000) (Walters, J.).20 “Beyond the corporate limits of a city, the county has jurisdiction by statute to accept and approve subdivision plats See I C § 50-1308 For the City of Eagle to be allowed to exercise co-equal jurisdiction with Ada County in the impact area lying beyond the city limits would not only be in conflict with the statute but also inconsistent with constitutional limitations placed on a city’s powers.” Blaha II, 134 Idaho at 777, 9 P.3d at 1243 (citing Idaho Const. art., § 2).
It is impossible to segregate (or even identify) the portion of Veolia’s water rights and infrastructure that serve users within Boise’s corporate limits as opposed to those that serve users outside the City. The City’s proposal appears to recognize this, in that it requires the municipal provider to document its water supply throughout its entire certificated area Adoption Draft §§ 11-04-010 4, 11-04-010 4 A 2 b, 11-04-010 4 B, 11-04-010 4 C 2, 11-04-010 4 D 2, and 11-04-010 7 A 2
Accordingly, the City’s proposal to regulate the water supply of a regional water provider operating in other cities and unincorporated areas exceeds the City’s authority.
Aside from violating the Idaho Constitution, this extra-jurisdictional regulation could lead to irreconcilable conflicts if other cities or the county sought to impose their own “assured water supply” requirements on Veolia. For example, Veolia could find itself in the untenable position of being instructed by one jurisdiction to increase its water supply and by another to avoid unnecessary expenditures for additional water supply. This illustrates the wisdom of the Legislature’s decision to empower the IPUC not municipalities to regulate expenditures of public utilities engaged in providing public water supply
19 The reference to 1949 presumably refers to Clyde Hess Distrib. Co. v Bonneville Cnty., 69 Idaho 505, 210 P.2d 798 (1949), which is mentioned in Blaha v. Eagle City Council (“Blaha I”), 134 Idaho 768, 769, 9 P.3d 1234, 1235 (2000) (Walters, J.) and Blaha v Bd. of Ada Cnty Comm’rs (“Blaha II”), 134 Idaho 770, 777, 9 P.3d 1236, 1243 (2000) (Walters, J.). Clyde Hess, was not a land use case. It dealt with the division of authority among the city, county, and state to regulate the sale of beer Blaha I was the first case to address the division of authority between city and county with respect to areas of city impact.
20
In the companion case, Blaha v. Eagle City Council (“Blaha I”), 134 Idaho 768, 9 P.3d 1234 (2000) (Walters, J.), the Blahas challenged the City of Eagle’s approval of the same plat. The Court disposed of this appeal on procedural grounds.
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D. The Assured Water Supply requirements are modeled on other states whose law is different than Idaho’s.
Governments in a number of western states have authorized or adopted regulatory programs as part of the land use planning and zoning process aimed at ensuring that residents of the municipality have an assured water supply. A survey of regulatory actions in each of the Western states is found in Monica Green and Anne Castle, Assured Water Supply in the Western States: The Current State of Play, 28 Colo. Nat. Resources, Energy & Env’t L. Rev. 67 (2017).
Boise’s lead consultant in developing the Zoning Rode Rewrite is a Colorado firm. Colorado is among the states in which municipal governments are actively engaged in combining land use planning and water supply. Green and Castle at 101. Indeed, Colorado is a home rule state, where such things are allowed.21
Idaho is not among those states. “Idaho has no assured water supply law at the state level ” Green and Castle at 107 (emphasis supplied) The Green and Castle article found that Idaho and Utah have not gone down the “assured water supply” path for municipal land use planning. “The chart below provides an evaluation of the water adequacy laws of the nine states examined in this paper against the five criteria discussed above. Idaho and Utah are not included because those states do not have laws addressing the determination of water adequacy in the land use approval process for new development.” Green and Castle at 107 (emphasis supplied).
This article demonstrates that assured water supply provisions like those proposed by Boise and its Colorado-based consultant may be lawful elsewhere in the West but not in Idaho
E. The Assured Water Supply provisions have technical and other drafting errors that should be addressed.
Aside from the legal infirmities discussed above, the Assured Water Supply provisions have some technical and drafting flaws requiring the City’s attention.
Section 11-04-010.2.C states that the Assured Water Supply provisions apply to “[a]ll proposed development or redevelopment in a Groundwater Management District (GMD) as defined by Idaho Statute 42-5224.” But Idaho Code § 42-5224 deals with Ground Water Districts (not Ground Water Management Districts) and does not contain
21 In 1902, Colorado voters authorized home rule governance for cities and towns by amending the state constitution. Home rule governance for counties was authorized by voters through a separate amendment to the state constitution in 1970.
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any definitions. Ground Water Management Districts are governed by Chapter 51 of Title 42, Idaho Code.
The same subsection of the Assured Water Supply requirement also incorrectly states that the term “aquifer recharge district” is defined in Idaho Code § 42-4201.
Section 11-04-010 (which applies to “individual applicants” not municipal providers) requires the applicant to produce “a copy of a water right permit.” Not all water rights come in the form of permits Indeed, not all water entitlements come in the form of water rights Many are contract-based (e g , storage rights in federal reservoirs) or leased through the Water Supply Bank.
Moreover, this section does not seem to contemplate that the applicant may provide a “will serve” letter in lieu of documenting that it will provide its own water supply. Thus, the linkage between the individual applicant and the Designated Water Provider is missing.
Also note that not all water providers fit the definition of Designated Water Provider. Water may also be provided by irrigation districts or other entities that are not public utilities. There appears to be no equivalent provision to assure that those entities have an assured water supply.
The Assured Water Supply provisions do not say what happens if a municipal provider fails to seek certification, fails to obtain certification, or fails to seek or obtain recertification Must every land use application for land served by the provider be denied?
The Assured Water Supply provisions specify an effective date of July 1, 2024. Adoption Draft § 11-04-010.1. This is unrealistic considering the extraordinary burden placed on municipal providers to secure certification as a Designated Water Provider.
Section 11-04-010.4.A.2.b requires a gap analysis based on “full build out within the existing certificated area.” The term “full build out” is meaningful in the context of a specific, known development proposed by an individual applicant. It is not meaningful in the context of a certificated area that includes undeveloped land with no current development plans This is the reason that Veolia employed a different, and considerably more sophisticated, approach to quantifying its reasonably anticipated future needs in the IMAP.
Finally, note that the City’s proposal requires that future demand be based on population projections. Adoption Draft § 11-04-010.4. Veolia’s IMAP quantification of reasonably anticipated future needs was not based on population projections (which is only one factor in water demand) but on a complex analysis utilizing data refined down to individual “traffic analysis zones.” This is the same methodology employed by Idaho
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Power in its energy demand projections. Does the City intend to reject more sophisticated analyses that have been employed and approved by IDWR and IPUC?
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MEMORANDUM
