McMillen Jacobs Associates

Boise Office Golden Eagle Building 1101 W. River St., Ste. no P.O. Box 7985 Boise, Idaho 83707 Tel. (208) 629-7447

Challis Office 1301 E. Main Ave. P.O. Box36 Challis, Idaho 83226 Tel. (208) 879-4488

~ ... r----S 5

SAWTOOTH LAW Twin Falls Office 236 River Vista Place Suite301

OFFICES, PLLC

Twin Falls, Idaho 83301 Tel. (208) 969-9585

Fax for all offices: (208) 629-7559

May 16,2019

Sent via Regular Mail and Electronic Mail

Kevin Webb, Hydro Licensing Manager Fulcrum, LLC 100 Brickstone Square, Suite 300 Andover, MA 01810 E-mail: Kevin.Webb({t,)enel.com

Heidi Wahto, Project Manager McMillen Jacobs Associates 1011 Western Ave., Suite 706 Seattle, W A 98205 E-mail: [email protected]

David P. Claiborne* [email protected]

S. Bryce Farris [email protected]

EvanT. Roth [email protected]

Daniel V. Steenson [email protected]

Andrew J. Waldera [email protected]

James R. Bennetts (retired) [email protected]

Attorneys licensed in Idaho • Also licensed in Washington

Re: Barber Dam FERC Relicensing; P-4881; Study Requests and Comments.

DearMr. Webb and Ms. Wahto:

On behalf of Nampa & Meridian Irrigation District ("NMID") and Pioneer Irrigation District ("PID") I am formally submitting Study Requests and Comments concerning the abovereferenced matter. Representatives ofNMID, PID and myself also attended the "Joint Meeting" held on March 21, 2019 and I provided verbal comments and requested a study during the question and answer period. These Study Requests and Comments are a continuation of any comments from the Joint Meeting.

As you know, both NMID and PID have ongoing concerns related to the Barber Dam, its operations and its interference with the diversions of NMID and PID which are located below Barber Dam. NMID and PID have on numerous occasions raised these concerns to Ada County and Enel and to date the concerns have not been addressed. For your ease of reference, I am enclosing as Exhibit A the prior correspondence which can be found in the Pre-Application

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Page 12 SAWTOOTH LAW OFF!CfS, FlLC

Document for this Relicensing matter at Appendix A, pgs. 134-146. This correspondence includes letters dated May 31, 2018, July 16, 2018 and July 31, 2018 detailing the concerns of NMID and PID and requesting immediate action of Ada County to address these concerns. Representatives of NMID, PID, the Boise River Watermaster and myself also met with representatives of Ada County and Enel on August 22, 2019 to discuss these concerns and to request Ada County and/or Enel take immediate action to prevent any future interference with NMID or PID's diversions. To date, neither Ada County or Enel have even attempted to address these concerns and in fact there was another occurrence of Barber Dam going "off-line" just this past month.

I am also enclosing for your ease of reference as Exhibit B the demand letter dated December 21, 2018 from the Director of the Idaho Department of Water Resources ("Director") to the Ada County Commissioners. In it, the Director clearly states that the interruption of power at the Barber Dam violates State law and "Ada County must ensure that the interruption of power at Barber Dam does not interfere with the proper distribution of water by the water district in accordance with the prior appropriation doctrine." To date, at least to my knowledge, neither Ada County or Enel have responded to the Director's letter and they certainly have not taken any action to address his concerns. As mentioned above, Barber Dam had yet another interruption of power, which resulted in an interruption of flow in the Boise River, within the past thirty days.

Ada County, Enel and Fulcrum are certainly aware of the issues and concerns of NMID, PID and the Director but have been unwilling to take any action to address these concerns. I believe it was Mr. Webb that described the concerns as the "Elephant in the Room" during the Joint Meeting. Paying lip service to the issue is not resolving the issue. Until an acceptable plan to permanently eliminate interference and interruption of flows in the Boise River is provided NMID and PID are adamantly opposed to any relicensing approvals for the Barber Dam. NMID and PID will also request that the Director take further actions as described in his letter to prevent future interference and interruption of flows in the Boise River. These issues must be addressed before Ada County, Enel or Fulcrum continue any further with the FERC relicensing.

As far as requested studies, NMID and PID request detailed studies to:

1. Provide alternatives, including cost and feasibility of each, to address the concerns of NMID and PID. The study must be more than simply a notification process of when the hydropower plant goes off-line. Any interruption of flow is not acceptable so the alternatives must be, as the Director also demands, to "ensure that the interruption of power at Barber Dam does not interfere" with the flow of water in the Boise River. The enclosed letters suggest various alternatives, but it is up to Ada County and Enel to provide acceptable alternatives which eliminate entirely any interruption of flows. Any such study should also include a timeline to complete the modifications/alternatives and assurances as to how the alternatives will be funded; and

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SAWTOOTH LAW OFFICfS,PU.C

2. Provide alternatives, including costs, of eliminating the hydropower plant at Barber Dam altogether. During the Joint Meeting, it was suggested by Mr. Webb that depending upon the comments that FERC may condition the relicensing. This assumes that the relicensing will be approved. If acceptable alternatives to eliminate the interruption of the flows in the Boise River cannot be provided or accomplished then Ada County, Enel and Fulcrum should provide a detailed study to eliminate the hydropower plant altogether.

Like the Director, NMID and PID are resolute in ensuring that the Barber Dam hydropower plant does not interrupt flows in the Boise River or interfere with their respective diversions. Any interference, no matter how small or short in duration, is unacceptable. "The Elephant in the Room" cannot be ignored and until Ada County, Enel and Fulcrum choose to address it NMID and PID remain opposed to FERC relicensing or the continued operation of the hydropower plant.

As always, please contact me should you have any questions.

Very truly yours,

~ceF~ Enclosures

PAD - Appendix A, pgs. 134-146 December 21, 2018 Letter from the Director to Ada County

cc: Greg Curtis - NMID - via e-mail Daren Coon- NMID - via e-mail Rex Barrie - Boise River Watermaster- via e-mail Mark Zirschky- Pioneer Irrigation District - via e-mail Board of Ada County Commissioners -via e-mail (boccl @adaweb.net) Gary Spackman, Director of the Idaho Department ofWater Resources- via e-mail eFiled with FERC at www.ferc.gov

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EXHIBIT A Page 1 of 13

From: To: Cc:

Subject: Date: Attachments:

Ms. Wahto:

Bryce Farris Wahto Hejdj

Lorna Joraensen; Webb Kevin CEGP North Amerjca l; Wardle I ewis; ~;Greg Curtis; Andy Waldera; Mark Zirschky [email protected]); Debby Long; "Daren Coon [email protected])"

RE: Barber Dam FERC Relicensing - Stakeholder Questionnaire & Contact Request

Wednesday, September 26, 2018 8:37:30 AM jmageOOl.png 2018-Q9-26 NMID & PID Response to P-4881 Stakeholder guestjonnajre Sent pdf

Thank you for providing us with the opportunity to provide input/information concerning the Barber

Dam FERC Relicensing. As you may already know, our clients, Nampa & Meridian Irrigation District

and Pioneer Irrigation District, have expressed concerns with the operations of Barber Dam, have

written letters to Ada County and Fulcrum expressing those concerns, and have met with Ada

County and Enel as recently as August 22, 2018 to discuss these concerns. To date, these concerns

have not been satisfactorily addressed and until such concerns are addressed our clients Q.QJ1Q.Z. any

relicensing of Barber Dam.

I have attached hereto your Questionnaire & Contact Request Form as well as copies of various

letters which have been provided to Ada County and Fulcrum regarding our clients' concerns.

I'm not sure of all of the persons/organizations your e-mail went out to but I would suggest that you

also include the Boise River Watermaster, Rex Barrie (e-mail: Waterdistrict63 tiil Jwestoffic~) on

all future correspondence regarding this matter. I have cc'd Mr. Barrie on this e-mail.

Thanks and please do not hesitate to contact me shou ld you have any questions.

S. Bryce Farris Attorney at Law SAWTOOTH LAW OFFICES, PLLC

1101 W. River St., Ste. 110

P.O. Box 7985

Boise, ID 83707

Tel: (208) 629-7447

Fax: (208) 629-7559

[email protected]

SAWTOOTH LAW OffiCES, PLLC

From: Wahto, Heidi [mailto:[email protected]] Sent: Friday, September 07, 2018 4:45 PM To: Wahto, Heidi Cc: Lorna Jorgensen; Webb, Kevin (EGP North America); Wardle, Lewis Subject: Barber Dam FERC Relicensing - Stakeholder Questionnaire & Contact Request


Dear Stakeholders and Interested Parties:

Fulcrum, LLC, a subsidiary of Enel Green Power North America, Inc., along with Ada County, Idaho

are co-licensees of the Barber Dam Project (No. P-4881), a 3.7-megawatt (MW) hydropower project

located on the Boise River in Ada County just outside of Boise, Idaho.

McMillen Jacobs Associates is leading the consultant team and requests your review and response to

this email. The co-licensees are interested in your feedback on and participation in the Barber Dam

FERC Relicensing. The attached Stakeholder Questionnaire will allow you to provide us initial

information about yourself and your organization.

Please return completed forms by September 28, 2018 to me, Heidi Wahto, by email to

wahto rn mcm jac com.

You may use the attached form or you may contact the consultant team at:

Heidi Wahto

Project Manager

206-755-4867

Lewis Wardle

Deputy PM

208-859-3409

Many thanks,

Heidi Wahto, MPA

Practice Lead, Regulatory & Environmental Services

McMillen Jacobs Associates

1011 Western Ave., Suite 706 I Seattle, WA 98104

206.743.9210 p I 206.755.4867 c I wahto @ mr m j c com


Barber Dam FERC Relicensing Stakeholder Questionnaire

2.0 Questionnaire

Question #1:

Response:

September 2018

Do you expect your organization to be an active participant in the Barber Dam Project cERC Relicensing effort? Please provide your contact details: name, address, email, phone. (lfNo, you may still provide your contact information to be kept on the Mailing List to receive project information).

Yes. Please send all information to the following:

S. Bryce Farris Sawtooth Law Offices, PLLC 1101 W. River Street, Suite 110 !P.O. Box 7985 Boise, ID 83 707 Phone: 208-629-7447 !Email: [email protected] !Attorneys for Nampa & Meridian Irrigation District

lAndy J. Waldera Sawtooth Law Offices, PLLC 1101 W. River Street, Suite 110 !P.O. Box 7985 !Boise, ID 83707 IPhone: 208-629-7447 !Email: [email protected] !Attorneys for Pioneer Irrigation District

!Daren Coon, Secretary/Treasurer preg Curtis, Water Superintendent !Nampa & Meridian Irrigation District 1503 First Street South !Nampa, ID 83651 IPhone: 208-466-7861

!Mark Zirschky, District Superintendent !Pioneer Irrigation District IP.O. Box 426 !caldwell, ID 83606 !Phone: 208-459-3617

2



Question #2: If applicable, can you identify the authority [e.g., statutory, regulatory] that is relevant to ~our organization's participation in the relicensing?

Response: Nampa and Meridian Irrigation District ("NMID") and Pioneer Irrigation District ("PID") are irrigation districts with natural flow and storage water rights which divert water from he Boise River below Barber Dam and have raised numerous concerns regarding the

operations of Barber Dam. These concerns have yet to be addressed. For your ease of eference, I am attaching three (3) recent letters from both NMID and PID expressing ~oncerns.

NMID and PID representatives met with Ada County and Enel on August 22,2018, to discuss these concerns. To date, there have been no actions by Ada County or Enel to address these concerns and thus NMID and PID oppose any Barber Dam FERC Relicensing.

p uestion #3: Do you personally plan to be a key/major participant in the relicensing? Are there others in your organization who will be important participants? (If so, please provide names and ontact info for each participant.)

Response: Yes. See answer to Question No. 1.

puestion #4: What are your organization' s major goals regarding the relicensing the Barber Dam Project? Are the goals based on law or regulations, agency policy, or management plans elative to the affected area?

Response: rv es, the goals relate to the protection and non-interference with State water rights and the tprevention of damages to NMID, PID, their landowners which rely upon their respective !water rights and the prevention of damages to property and third persons as a result of the operations of Barber Dam. See the attached letters for more specifics.

puestion #5: What do you see as important issues or questions that should be addressed during the elicensing process from your organization's perspective and why these are important ssues?

Response: See the attached letters. Until the concerns ofNMID and PID are adequately addressed both NMID and PID oppose any FERC relicensing of Barber Dam.

September 2018 3



Question #6: Are you aware of any information, either current or historical, related to the project, its operations, potentially affected resources, etc., that we should include in our preliminary esearch?

Response: See the attached letters.

p uestion #7: !What is your preferred method of receiving project information/documents: email, US nail, website, other?

Response: !Email.

3.0 Additional Notes

Please use the space below to provide any other information you'd like to share.

!Response: I' I II I

September 2018 4


Boise Office Golden Eagle Building 1101 W. River St., Ste. 110

P.O. Box 7985 Boise, Idaho 83707 Tel. (208) 629-7447

ChnlJis Office 1301 E. Main Ave. P.O. Box36 Challis, Idaho 83226 Tel. (208) 879-4488 SAWTOOTH LAW Twin Falls Office 236 River Vista Place Suite301

OFFICES, PLLC



Sent via Electronic Mail

Lorna Jorgensen Ada County Prosecuting Attorney 200 W. Front Street, Rm. 3191 Boise, ID 83 702 E-mail: [email protected]

May 31,2018

David P. Claiborne* [email protected]




Andrew J. Wa.ldera [email protected]


A!tarneys /iceru;ed In Idaho • Also licensed in Washington

Re: Barber Dam; Plant Shutdowns and Interruption of Flows in the Boise River; FERC License No. 4881.

Dear Lorna:

I am writing to you and the Ada County Board of Commissioners (hereinafter "Ada County") on behalf of Nampa & Meridian Irrigation District (hereinafter "NMID") concerning the above-referenced matter. I am writing to you, as the prosecuting attorney for Ada County, because you have been part of the prior e-mail correspondence concerning this matter. You will notice I have also copied several other individuals which have also been part of said correspondence. You will also notice that I copied Fulcrum, Inc. on this letter because the hydro-power water right for Barber Dam is in the name of Fulcrum, Inc. and it appears they are also a licensee under the FERC License.

As you know, NMID owns, operates and maintains the Ridenbaugh Canal and its numerous laterals for delivery of water to its landowners. NMID also owns several water rights, and has contracts for storage water from Arrowrock and Anderson Ranch Reservoirs, for the delivery of water to lands within NMID consisting of more than 60,000 acres in Ada and Canyon Counties. As you also know, NMID's diversion for the Ridenbaugh Canal at the Boise River is downstream and below Barber Dam. NMID maintains check boards in the Boise River and has automated gates which maintain the flow of water into the Ridenbaugh Canal. These check boards and automated gates regulate the Ridenbaugh Canal diversions are adjusted based upon

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Page 12 I Lt\W

the flows in the Boise River and the information provided by the Boise River Watennaster. Please note that the check boards in the Boise River are not automated and as explained below cannot be easily adjusted if flows in the Boise River abruptly change.

Interruptions or interference with NMID's water rights, diversions and delivery to its landowners cannot and will not be tolerated. The water right for Barber Dam, 63-10028, which is in the name of Fulcrum, Inc. does not provide for any storage and instead is a hydro-power right which specifically states that "the use of water under this right shall be non-consumptive" and that the right is "junior and subordinate to all rights for the use of water other than hydropower." In other words, the water right is junior in priority to all ofNMTD's water rights and Barber Dam cannot divert, backup, store or consumptively use any water which would deprive, interfere with or interrupt NMID's diversions at the Ridenbaugh Canal. Even the slightest interruptions because of power failures at the Barber Dam power plant are not authorized by the water right or Idaho law.

In addition to interference with NMID's water rights and diversions to the Ridenbaugh Canal, sudden and abrupt changes to the Boise River flows without proper notice can have devastating consequences to the Ridenbaugh Canal and surrounding properties. If flows abruptly go down but then suddenly come back up without proper notice then the Ridenbaugh Canal can divert more water than it can carry which will result in water overtopping its banks. The automated gates may be adjusted but, again, the check boards cannot be easily modified or adjusted to account abrupt and sudden changes in the flows. This is a real concern that NMID has previously identified to Ada County and NMID reiterates this concern at this time. NMID intends to hold Ada County responsible for any and all damages or claims which may result to NMID, the Ridenbaugh Canal, NMID's landowners or adjoining property owners as a result of abrupt changes in Boise River flows caused by Barber Dam altering the flows of the Boise River.

The purpose of this letter is not just to reiterate NMID's concerns with the operations of Barber Dam or to notify Ada County that it will be responsible for damages as a result of its interruption of flows in the Boise River, but also to demand that Ada County take immediate action to address these concerns. There has been an ongoing discussion about these concerns for the past several years and NMID does not believe that these concerns have been adequately addressed. In fact, during the month of April of 2018 there were three reported instances where the Barber Dam powerhouse went down. The impacts to NMID are not as significant during high flows because Barber Dam does not abruptly modify the flows of the Boise River when the powerhouse goes down. However, as flows decline this will continue to be a real concern of NMID. In other words, this issue needs addressed before flood control releases cease.

I should also add that NMID appreciates that Ada County and/or its contractors operating Barber Dam have attempted to create a notification process to alert the Boise River watennaster, NMID and others of when the Barber Dam powerhouse goes down. However, those notifications have been unsatisfactory in that the notifications are not consistent as to the method and means of notification, i.e. text vs. e-mail, and more importantly, the notifications are not timely. Most, if not all, of the time the notifications occur well after the interruption of flow has

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Page 13

occurred and in many instances the notification occurs after NMJD has been notified by its own automation system that the flows have abruptly changed. The point is that the real time notifications which would prevent interference with NMID's diversions to the Ridenbaugh Canal have not occurred.

All that said, NMID is demanding that Ada County take immediate action to address NMID's concerns. Notifications after the fact are unacceptable and NMID thus demands that such actions must include consideration of the following: 1) having an operator on-site 2417 (during the irrigation season which is generally April 1 to November 1) to immediately restart the plant if there is a shutdown; 2) performing proper tests or other measures to ensure that there fewer shutdowns; 3) having a generator or other back up means to immediately restart the plant so there are no shutdowns; and 4) installing a by-pass flow to allow water to pass immediately through, around or over the dam during a shutdown to ensure that the flows downstream at the Ridenbaugh Canal diversion are not impacted by a shutdown.

Finally, I understand that the FERC License for Barber Dam is up for renewal in the next five years. NMID does not support the renewal of said License until and unless these issues/concerns have been satisfactorily addressed. NMID does not want to get into an adversarial dispute with Ada County over this issue, including having to seek an injunction or other relief preventing further interference with NMID's water rights, but it cannot tolerate the continued interference with its diversions and delivery to its landowners. At this point, I would request that Ada County immediately provide NMID with options Ada County is willing to consider to address these concerns (more than just a process for notifying NMID of shutdowns) and then we can schedule a meeting for discussion. Since the flood control season is waning, and flows in the Boise River will be reduced in the next month or so, I would request a response within twenty (20) days of the date ofthis letter.


Very truly yours,

~ce;~ ~ cc: NMID

Rex Barrie- Boise River Watennaster- via e-mail Mark Zirschky - Pioneer Irrigation District- via e-mail Board of Ada County Commissioners -via e-mail (bocc 1 [email protected]) Fulcrum, Inc., 1555 Shoreline Dr. #200, Boise, Idaho 83707



ise Office Golden Eagle Building 1101 W. River St., Ste. no P.O. Box 7985 Boise, Idaho 83707 Tel. (208) 629-7447

Challis Office (

1301 E. Main Ave. P.O.Box36 Challis, Idaho 83226 Tel. (208) 879-4488 SAWTOOTH LAW Twin Falls Office 236 River Vista Place Suite301

OFFICES, PLLC



Sent via Eledronic Mail

Lorna Jorgensen Ada County Prosecuting Attorney 200 W. Front Street, Rm. 3191 Boise, ID 83 702 E-mail: [email protected]

July 16, 2018

David P. Claibol'lle * [email protected]




Andrew J. Waldera [email protected]


Attorneys lioonsed in Idaho • Also licensed in Washington

Re: Barber Dam; Plant Shutdowns and Interruption of Flows in the Boise River; FERC License No. 4881.

Dear Lorna:

This letter is to follow up my prior letter to you dated May 31, 2018 regarding the abovereferenced matter and to respond to your letter dated June 20, 2018. Your letter raises several issues which need further clarification.

First, your letter suggests that generator would not solve the problem because when the plant goes off-line it "cannot restart until the issue is resolved." NMID was not suggesting that a generator would be used to restart the plant or to keep the plant up and running when it is offline. Rather, NMID's suggestion was that when the plant when off-line there could be separate gate which would open, if necessary by a generator, and which allowed the Boise River flows to continue downstream so as to prevent fluctuations in the flows. As previously mentioned the NMID's concern is that when the plant goes off-line, Barber Dam backs up the water behind the Dam and disrupts the flows in the Boise River. NMID's demands are that Ada County and its contractors take actions to prevent the disruption of the flows in the Boise River and a separate gate and generator is simply one suggestion for doing so. While your letter suggests that Ada County's contractors may take time to safely restart the plant after it goes off-line, a bypass flow, which may include a separate generator, would prevent disruption of the flows in the Boise River

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Page 12 SAWJ.SmtJ LAW

while they took their time to do so. This is simply a suggestion for Ada County to consider but Ada County may consider other options to prevent disruption of flows.

Second, your letter suggests that the disruption in flows is the result of the "operation of Lucky Peak and the New York Canal." This suggestion is not accurate. The Boise River Watermaster, which regulates the flows and diversion of water rights in the Boise River, has previously reviewed this as an excuse for the disruption in flows and has determined it is not the New York Canal diversions. Additionally, the flows out of Lucky Peak are regulated by either the Corps of Engineers during flood control or by the Boise River Watermaster. In either case, the flows are regulated and reported and there are not dramatic fluctuations as a result. The issue which NMID is raising involves Barber Dam going off-line, backing up the water behind the Dam and then changing the flows of the Boise River when it has no water right to do so. There are reported instances of this occurring including, but not limited to, complete drying up of the Boise River in 2015 (note: Idaho Rivers United sent a letter to Ada County regarding such on May 26, 20 15), and multiple instances just this past April.

Third, your letter suggests that "when the plant goes off-line, the water spills over the top." Such spilling may eventually occur but it is not immediate. The water backs up behind Barber Dam and the amount of water flowing downstream is delayed. This is the very fluctuation in flow that NMID has experienced and now demands to cease. Again, a bypass flow would allow the water to pass when the plant is shut down and there would be no delay for the water to spill over the Dam.

Finally, like Ada County and Fulcrum, NMID has no interest in getting into an adversarial dispute. However, your letter did not address NMID's concerns and it continues to demand immediate action to address these concerns. Until these concerns are satisfactorily addressed NMID will oppose any renewal of the FERC license for Barber Dam. As we discussed earlier this week, if Ada County and its contractors would like to meet and discuss these concerns NMID is more than willing to do so. Please advise when the contractor's representative will be in town and we can schedule such a meeting.


cc: NMID Rex Barrie- Boise River Waterrnaster- via e-mail Mark Zirschky- Pioneer Irrigation District - via e-mail Board of Ada County Commissioners -via e-mail (bocc 1 'li.adaweb.net) Fulcrum, Inc., 1555 Shoreline Dr. #200, Boise, Idaho 83707

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Boise Office Golden Eagle Building 1101 W. River St., Ste. uo P .0. Box 7985 Boise, Idaho 83707 Tel. (208) 629-7447

Challis Office 1301 E. Main Ave. P.O. Box36 Challis, Idaho 83226 Tel. (208) 879-4488 SAWTOOTH LAW Twin Falls Office 236 River Vista Place Suite 301

OFFICES, PLLC



July 31, 2018

Via Email to /[email protected] and U.S. Mail

Lorna Jorgensen Ada County Prosecuting Attorney 200 W. Front Street, Room 3191 Boise, ID 83 702

Re: Barber Dam Operations, Plant Failures, River Flow Fluctuations FERC License No. 4881

Dear Lorna:

David P. Claiborne * [email protected]




Andrew J. Waldera n

[email protected]


Attorneys il'censod in Idaho • Also il'censed in Washington

.. Also licensed in Oregon

I write you and the Ada County Board of County Commissioners ("County") on behalf of Pioneer Irrigation District ("Pioneer"). Pioneer provides irrigation water to approximately 34,000 acres of highly productive agricultural lands in Ada and Canyon Counties, as well as rapidly urbanizing lands within Nampa, Caldwell, and surrounding areas. Pioneer's Boise Riverbased diversions are into the Phyllis Canal, located on the south side of the river in the vicinity of the head of Eagle Island and Linder Road, and the Highline Canal, also located on the south side of the river in the vicinity of Star Road.

I write in follow-up to correspondence between the County and Nampa & Meridian Irrigation District ("NMID") regarding Barber Dam ("Dam") operations, and in response to the Dam's most recent power plant failure over the evening and early morning of July 24 and 25, respectively. I will not belabor the points already raised by NMID in its correspondence to you, dated May 31,2018. Suffice it to say, Pioneer shares NMID's concerns given that it is a senior water right owner both in terms of natural flow water rights and storage water in Arrowrock, Anderson Ranch, and Lucky Peak Reservoirs. Also like NMID, Pioneer owns, operates and maintains span-of-river check dams/structures used to regulate its canal diversions, together with headgate automation facilities at the heads of the canals themselves.

Despite river diversion locations several miles downstream ofNMID's Ridenbaugh Canal (at Eckert Road), power plant failures at the Dam and resulting river flow fluctuations adversely impact and interfere with Pioneer infrastructure and operations. These adverse impacts and interference are:

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Page 12 I '

(a) Contrary to the provisions of the Dam's operative water right license (63-10028), which authorizes Dam operation on a run-of-river basis (i.e., absent the impoundment and storage of water);

(b) Contrary to condition nos. 3 and 7 of the water right license and Idaho water law in general (which preclude interference with the exercise and use of Pioneer's senior water rights and the exercise and use of all other water rights other than those for hydropower generation purposes); and

(c) Contrary to the County's underlying FERC license, requiring operation ofthe Dam and related facilities on a run-of-river basis in a manner that does not conflict with preexisting or proposed developments (i.e., operation in a manner that does not interfere with river flow regimes and the preexisting legal entitlements of others).

Like NMID, Pioneer will hold the County responsible for any and all service-related upsets/damages claims caused by Dam operations, including:

(a) Inability to meet irrigation water delivery demands within Pioneer's distribution system caused by the Dam's unauthorized and illegal impoundment of water;

(b) Infrastructure damage or loss caused by Dam-induced river flow fluctuations; and

(c) Property damage or loss along the Phyllis and/or Highline Canals owing to river flow fluctuations and surges caused by Dam power plant failures and ''re-starts" (which surges on plant restarting can overwhelm existing canal automation structures and lead to the unintended diversion of more water into the canals that the canals can safely handle).

Unfortunately, and as the County is aware, unauthorized impoundment of water and river flow fluctuations owing to Dam and power plant operations (or, perhaps more accurately, power plant failures) are recurring problems. In February 2015, power plant failure essentially dewatered the Boise River downstream of the Dam for several hours. In April2018, there were three reported instances of power plant failure. Most recently, the power plaint failed at approximately 7:40 p.m. Tuesday, July 24, 2018, and was not back online until nearly twelve (12) hours later (approximately 6:40a.m. on July 25, 2018).

During this most recent event (July 24-25), Boise River elevation at the Phyllis Canal check structure and headworks dropped 1.5 feet. Fortunately, this loss of elevation occurred primarily overnight when irrigation demand is comparably lower. Equally fortunate is that Pioneer's headgate automation was able to adjust quickly enough to essentially maintain canal flows; but that required Pioneer to divert virtually all available river flows at the head works. This, in turn, largely dewatered the river and interfered with the water diversion entitlements of others downstream of the Phyllis Canal. The event also would have led to Pioneer property loss had personnel not waited on-site through the middle of the night to retrieve check boards from the river and replace the same when river flows rebounded upon the restarting of the Dam power

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Page 13 SAWTOOTH LAW IHII'I' I'll(

plant. All told, Pioneer operations did not fully normalize until approximately noon on July 25-nearly seventeen (17) hours after the Dam power plaint initially failed.

Pioneer requests that the County correct these issues in short order. Dam power plant failures are not isolated events; NMID and others, including Idaho Conservation League, have been raising Dam operations concerns for years and yet the cycle continues. Pioneer supports and joins in the engineered and Dam site staffing·based potential solutions suggested by NMID. It is the County's responsibility and obligation (in concert with its power·generating contractor) to ensure that Dam operations are run·of·river only. Anything else impermissibly conflicts with the water rights and legal entitlements of others, and violates the applicable FERC license. If the County is unwilling or unable to address these issues, Pioneer will be left no choice but to oppose the County's FERC re·licensing efforts. Pioneer would rather work cooperatively with the County to chart a corrective course of action.

It is my understanding that the County has set a meeting on August 22, 2018, to discuss these matters with NMID representatives and the Water District 63 Watermaster. It is also my understanding that counsel for NMID suggested to you that Pioneer representatives attend as well, and that Pioneer's attendance is welcomed and expected. If my understanding regarding Pioneer attendance on August 22 is incorrect, please advise. Otherwise, we look forward to meeting with you and others then.

If you have any questions regarding Pioneer's interests in this matter, please feel free to contact me directly. You can reach me at 208-629-7447.

AJW/dll cc: Pioneer Irrigation District


EXHIBIT B Page 1 of 3

State of Idaho DEPARTMENT OF WATER RESOURCES 322 East Front StHet • P.O. Box 83720 • Boise, Idaho 83720-0098 Phone: (208) 287-4800 • Fax: (208) 287-6700 • Websit.e: www.idwr.ldaho.gov

C.L. "BUTCH" OTTER Gove~nor

Jim Tibbs, Commissioner Rick Visser, Commissioner Dave Case, Commissioner Ada County Commission 200 West Front Street, 3rd Floor Boise, ID 83 702

Re: Operation of Barber Dam Hydropower Plant

Dear Commissioners:

December 21, 20 18

GARY SPACKMAN Dirf:ctor

I recently met with Rex Barrie, Watermaster for the Boise River, and representatives/managers of several large canals diverting water from the Boise River (collectively referred to herein as "the water managers"). The water managers expressed concern about operations of the Barber Dam hydropower plant. I am writing this letter because Idaho Department of Water Resources records identify Ada County as the owner of Barber Dam, with Fulcrum Inc. holding water right no. 63-10028, which authorizes use of Boise River water at the Barber Dam hydropower plant.

I am told that an outside source of electricity from Idaho Power is required to operate the Barber Dam hydropower plant. I am also told that when power from Idaho Power is interrupted, generation of hydropower at Barber Dam ceases. After the cessation of hydropower generation at the Barber Dam hydropower plant, water that would normally flow through the turbines in a "runof-the-river-operation" ceases to discharge from the turbines, and is stored in the Barber Dam impoundment until it builds sufficient head to flow over the ogee weir spillway.

I am also told that water levels must rise in the Barber Dam impoundment over several hours before flows increase over the spillway to match the flow of water that had previously flowed from the hydropower turbines.

During the time period of increasing impoundment and reduced Boise River flow below Barber Dam caused by the shutdown of the Barber Dam hydropower plant, gates in the Ridenbaugh Canal, Settlers Canal, and other diversions downstream automatically raise to maintain flows in the canals authorized by water rights identifying the canal headings as water right points of diversion. As the gates at the irrigation canal headings raise to divert more water, the water shortages in the Boise River propagate downstream, significantly reducing the water supply available to satisfy water rights for other canals. Of particular concern is the reduction in divertible flow for the Phillis Canal, operated by the Pioneer Irrigation District.


Ada County Commission December 21, 2018 Page 2

Conversely, when the Barber Darn hydropower plant begins generating electricity after a shutdown, gates in the canals that might be wide open cannot adjust quickly enough to adapt for the sudden increase in river flows. As a result, the changing river flows result in excess water in the canals, which can cause water to overtop canal banks, creating a risk of flooding and perhaps canal failure.

Water right no. 63-10028, held by Fulcrum Inc., authorizes diversion of Boise River water for hydropower production at Barber Dam. The water right does not authorize storage of water in the Barber Darn impoundment. The water right authorizes "run-of-the-river" operation of the Barber Darn hydropower plant. Furthermore, water rights for all of the canals negatively impacted by Barber Dam hydropower plant shutdowns bear priority dates earlier than water right no. 63-10028. Operation of the Barber Dam hydropower plant should not, under any circumstances, disrupt the supply of water to irrigation canals below Barber Dam.

Idaho Code§ 42-701(1) states: The appropriators or users of any public waters of the state of Idaho shall maintain to the satisfaction of the director of the department of water resources suitable headgates and controlling works at the point where the water is diverted. Each device shall be of such construction that it can be locked and kept closed by the watermaster or other officer in charge, and shall also be of such construction as to regulate the flow of water at the diversion point. (Emphasis added).

Idaho Code§ 42-701(3) states: Any appropriator or user of the public waters of the state of Idaho that neglects or refuses to construct or maintain such headgates, controlling works or measuring devices ... upon receiving ten (I 0) days' notice from the director of the department of water resources within which to begin and diligently pursue to completion the construction or installation of the required device or devices ... then the director of the department of water resources may order the duly qualified and acting watermaster of the water district to shut off and refuse to deliver at the point of diversion, the water owned by such appropriator or user until the user does construct and maintain such headgates, controlling works or measuring devices ....

I conclude that because the interruption of power at the Barber Dam hydropower plant results in the improper impoundment and reduction of Boise River flows at Barber Dam, Ada County has failed to maintain adequate controlling works at Barber Dam as required by Idaho Code§ 42-701(1). Ada County must ensure that the interruption of power at Barber Darn does not interfere with the proper distribution of water by the water district in accordance with the prior appropriation doctrine. This letter is a notice of a pending order requiring installation of headworks at Barber Dam "of such construction to regulate the flow of water" as "run-of-the-river" at the Barber Dam hydropower plant point of diversion. When the order is issued, Ada County and its contractors or operators of Barber Dam will have ten days "to begin and diligently pursue to completion the construction or installation of' the required headworks.


Ada County Commission December 21, 2018 Page 3

I am sending this letter hoping that some discussion about alternatives might reduce the cost of modifications to Barber Dam. I am, however, resolute in ensuring that water supplies for the water users relying on flows in the Boise River for irrigation and other uses are not diminished by operations of the Barber Dam hydropower plant.

Cc: Lorna Jorgensen Ada County

Fulcrum Inc.

Chuck Salo Conrad St. Pierre Enel Green Power North America

Rex Barrie Water District 63

Daren Coon Greg Curtis Nampa Meridian Irrigation District

Mark Zirschky Pioneer Irrigation District

8~ Gary Spackman Director

Documents

McMillen Jacobs Associates