Did the 1984 Swan Falls Agreement subordinate Idaho Power's hydropower rights to aquifer recharge, and do later statutes create vested rights for Idaho Power against that subordination?
Plain-English summary
This is the corrected and authoritative version of Idaho Attorney General Opinion 06-2 (the original 06-2 was issued in March 2006, and 06-2A was reissued in February 2007 to correct scriveners' errors and add two supporting citations). Despite the suffix "A," the opinion is dated February 13, 2007, effective March 9, 2006.
The opinion answered two questions from Idaho House Speaker Bruce Newcomb about how the 1984 Swan Falls Agreement interacts with Eastern Snake Plain Aquifer recharge. The structure of the Swan Falls deal: Idaho Power's hydropower water rights at Swan Falls Dam above agreed minimum daily flows at the Murphy Gauge (3,900 c.f.s. April-October, 5,600 c.f.s. November-March) were transferred to the State of Idaho, which holds them in trust for both Idaho Power and the people of Idaho. The State, as trustee, retains the authority to reallocate that trust water to subsequent beneficial upstream uses approved under state law.
On Question 1 (subordination to recharge): Yes. The Agreement's subordination provision contains no carve-out for any particular type or category of beneficial use. The plain text and the legislative history (testimony of Idaho Power's own attorney before Senate committees in 1985) demonstrate that the parties understood the trust water was subject to all future beneficial uses, recharge included. The 1978 Ground Water Recharge Act predated Swan Falls by six years; the parties knew recharge was a recognized beneficial use when they drafted the deal.
On Question 2 (1994 statutes): No vested rights. In 1994 the Legislature added language to Idaho Code §§ 42-234(2) and 42-4201A(2) making recharge rights "secondary" to Idaho Power's hydropower rights subordinated under Swan Falls. The AG concluded those statutes were a 1994 policy choice the legislature can change at will. They created an incidental benefit for Idaho Power, not a vested right enforceable against the State. The integration clause at paragraph 17 of the 1984 Agreement expressly says subsequent legislation does not affect the Agreement's validity, and the 1985 legislative-history testimony confirmed both sides understood that.
Currency note
This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Swan Falls Agreement and the underlying statutes have been the subject of substantial litigation since 2006, including cases in the Snake River Basin Adjudication and the Idaho Supreme Court. Specific statutory text in Idaho Code §§ 42-234, 42-4201A, 42-203B, and 42-203C has also evolved. Anyone advising on Snake River water rights, hydropower subordination, or aquifer recharge today should consult current Idaho statutes, recent Idaho Supreme Court and SRBA decisions, and the current state of negotiations between Idaho Power, IDWR, and surface- and groundwater users in the ESPA basin.
Common questions
Q: What is the Swan Falls Agreement?
A: A 1984 settlement among the State of Idaho, the Idaho Attorney General, and Idaho Power Company that resolved litigation over the subordination of Idaho Power's water rights at the Swan Falls hydroelectric dam on the Snake River. The deal transferred legal title to Idaho Power's water rights above agreed minimum daily flows to the State, which holds them in trust.
Q: What are the "minimum flows" under the Agreement?
A: 3,900 cubic feet per second (c.f.s.) on average daily basis from April 1 to October 31, and 5,600 c.f.s. from November 1 to March 31, measured at the U.S.G.S. Murphy Gauge below Swan Falls Dam.
Q: Who is the trustee, and who are the beneficiaries?
A: The State of Idaho is the trustee. The beneficiaries are Idaho Power Company and the people of Idaho. The State has authority to reallocate the trust water to future appropriators in conformance with state law.
Q: What does "subordinated" mean here?
A: When the State approves a subsequent beneficial upstream use of the water, Idaho Power's hydropower right to that water is subordinated, meaning the upstream use takes priority. Idaho Power retained equitable title until subordination occurs.
Q: Why did the Legislature add the "secondary to hydropower" language in 1994?
A: As a 1994 policy choice. The AG read the language as expressing the legislature's intent at the time to treat recharge as secondary, but did not read it as a permanent grant of vested rights to Idaho Power that the legislature could not later modify.
Q: Could the Idaho Legislature change this priority again?
A: Per the AG's reading, yes. Idaho Code §§ 42-234(2) and 42-4201A(2) are statutes; the legislature has constitutional authority to amend or repeal statutes. The 1984 Agreement's integration clause expressly contemplates that subsequent legislation will not destabilize the Agreement itself, but the Agreement also did not lock in a permanent priority for Idaho Power against the State's reallocation authority.
Q: Is this opinion binding?
A: No. AG opinions are persuasive authority. The conclusions are the State's litigating position; courts could reach different conclusions in adjudicating actual disputes between Idaho Power, IDWR, and other appropriators.
Q: What is the Eastern Snake Plain Aquifer?
A: A massive groundwater aquifer underlying southern Idaho. It has been managed conjunctively with surface water in the Snake River basin for decades, and recharge programs (using surplus surface water to replenish the aquifer during high-flow periods) are a key element of the State's water management strategy.
Background and statutory framework
The opinion's reasoning rests on three pillars: contract interpretation of the 1984 Agreement; the legislative history of Senate Bill 1008, the 1985 implementing legislation; and the structure of the trust created by Idaho Code §§ 42-203B and 42-203C.
Contract interpretation. Paragraph 7(B) of the Agreement reads (in relevant part) that Idaho Power's water rights "in excess of the [minimum flow] amounts stated in 7(A) shall be subordinate to subsequent beneficial upstream uses upon approval of such uses by the State in accordance with State law." That language contains no exclusion for any specific category of use. The AG applied standard Idaho contract-interpretation rules: when contract terms are unambiguous, plain meaning controls (Tolley v. THI Co., 140 Idaho 253 (2004); Clear Lakes Trout Co., 141 Idaho 117 (2005)).
Legislative history. Idaho Power's lead attorney Tom Nelson testified before the Senate Resources and Environment Committee in January and February 1985, and was repeatedly asked to clarify the company's understanding of the subordination provision. He testified that "[a]nything above the minimum flow the state is free to do as it likes" and that "one of the big questions is what will future uses be of the remaining water." That testimony confirmed Idaho Power understood the deal subjected the trust water to all future beneficial uses, not a closed category.
Trust structure. The Statement of Legislative Intent for SB 1008, read into the Senate Journal in 1985, describes the State holding legal title to all of Idaho Power's water rights above the agreed minimum flows, with Idaho Power holding equitable title subject to the trust. Future appropriators are persons on whose behalf the trust waters are held; when a future appropriation is granted, Idaho Power's interest in that appropriated water is subordinated.
The 1994 amendments to Idaho Code §§ 42-234(2) and 42-4201A(2) inserted language making recharge rights "secondary to all prior perfected water rights, including those water rights for power purposes that may otherwise be subordinated by" the Swan Falls Agreement. The AG read that as an express acknowledgement that, absent the 1994 amendments, the Swan Falls subordination would have placed recharge ahead of Idaho Power. That statutory choice was the legislature's to make in 1994 and the legislature's to revisit later.
Citations and references
Statutes:
- Idaho Code § 42-203B (transferred trust water rights)
- Idaho Code § 42-203C (criteria for reallocation)
- Idaho Code § 42-234 (Ground Water Recharge)
- Idaho Code § 42-4201 et seq. (Ground Water Recharge Act of 1978)
- Idaho Code § 42-4201A
- Idaho Const. art. 7, § 13 (no money drawn from treasury except by appropriation)
Cases:
- Idaho Power Co. v. Dept. of Water Resources, 104 Idaho 575 (1983) (the underlying litigation)
- Miles v. Idaho Power Co., 116 Idaho 635 (1989) (purpose of subordination)
- Clear Lakes Trout Co. v. Clear Springs Foods, 141 Idaho 117 (2005)
- Tolley v. THI Co., 140 Idaho 253 (2004)
- Pinehaven Planning Bd. v. Brooks, 138 Idaho 826 (2003)
- Maroun v. Wyreless Systems, 141 Idaho 604 (2005)
- Dept. of Parks v. IDWA, 96 Idaho 440 (1974) (beneficial uses change over time)
Other authorities:
- "Agreement" (Oct. 25, 1984) (the "Swan Falls Agreement")
- Statement of Legislative Intent for S.B. 1008, JOURNAL OF THE STATE SENATE, 48th Legislature, 1st Regular Session (Idaho 1985)
- Minutes of the Idaho Senate Resources and Environment Committee, January 18 and February 1, 1985
- 1994 Idaho Sess. Laws 851, 1397 (the recharge-secondary amendments)
- 1978 Idaho Sess. Laws 725 (Ground Water Recharge Act)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion06-2A.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
ATTORNEY GENERAL OPINION 06-2A
Hand Delivered
Honorable Bruce Newcomb
Speaker of the House
Idaho House of Representatives
STATEHOUSE
Per Request for Attorney General's Opinion
Regarding Swan Falls Agreement and Idaho Code §§ 42-234(2) and 42-4201A(2)
Dear Speaker Newcomb:
This opinion responds to the questions in your letter dated February 27, 2006, regarding the effect of Idaho Code §§ 42-234(2) and 42-4201A(2) on the use of natural flow to recharge the Eastern Snake Plain Aquifer. In order to respond to your questions, it is first necessary to review the Swan Falls Agreement and to then consider the effect, if any, of Idaho Code §§ 42-234(2) and 42-4201A(2) on the Swan Falls Agreement. The questions presented are set forth below.
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Is aquifer recharge a use to which Idaho Power Company subordinated its hydropower water rights under the Swan Falls Agreement?
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If Idaho Power Company subordinated its water rights to recharge under the Swan Falls Agreement, do the provisions in Idaho Code §§ 42-234(2) and 42-4201A(2) change the Swan Falls Agreement and create any vested rights or priorities in Idaho Power Company?
This opinion supersedes Attorney General Opinion No. 06-2 and corrects several scriveners' errors therein. This opinion also adds two supporting citations to the primary citation following the indented block quote on page 4 and footnote no. 8 regarding the minimum flow at Milner dam.
CONCLUSIONS
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Under the Swan Falls Agreement, Idaho Power Company subordinated its hydropower water rights in excess of the agreed-upon minimum flows to all "subsequent beneficial upstream uses upon approval of such uses by the State in accordance with State law," regardless of the type or kind of beneficial use. Thus, the hydropower rights referenced in the Swan Falls Agreement are subordinated to aquifer recharge in accordance with state law.
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Idaho Code §§ 42-234(2) and 42-4201A(2) do not create any vested rights or priorities in Idaho Power Company because the State, as trustee, holds legal title to the water placed in trust and, in accordance with the Swan Falls Agreement, the State has the right to determine how the trust water will be used. Idaho Code §§ 42-234(2) and 42-4201A(2) create only an incidental statutory benefit in favor of Idaho Power that the State is free to modify or rescind at any time.
ANALYSIS
I. THE SWAN FALLS AGREEMENT DOES NOT LIMIT THE TYPES OF BENEFICIAL USES FOR WHICH THE TRUST WATERS MAY BE ALLOCATED
You have asked whether aquifer recharge is a use to which Idaho Power Company ("Idaho Power") subordinated its water rights under the Swan Falls Agreement. This question raises the issue of whether the Swan Falls Agreement limits the subordination of Idaho Power's water rights to any particular types or kinds of beneficial uses, and therefore categorically excludes other uses for purposes of subordination. These issues present a question of the interpretation of the Swan Falls Agreement.
The objective in interpreting a contract such as the Swan Falls Agreement is to give effect to the parties' intentions, which should be ascertained from the language of the contract, if possible. Tolley v. THI Co., 140 Idaho 253, 260, 92 P.3d 503, 510 (2004). The contract must be viewed as a whole and in its entirety. Clear Lakes Trout Co., Inc. v. Clear Springs Foods, Inc., 141 Idaho 117, 120, 106 P.3d 443, 446 (2005). If its terms are clear and unambiguous, their meaning and legal effect are questions of law controlled by the plain meaning of the words. Id.
[The full opinion runs approximately 13 pages, with extensive section-by-section analysis of the Swan Falls Agreement, the 1985 implementing legislation (S.B. 1008), the trust structure created by Idaho Code §§ 42-203B and 42-203C, the 1994 amendments adding the Swan Falls reference to the recharge statutes, and committee testimony from January, February, and March 1985 confirming the parties' shared understanding that subsequent legislation would not destabilize the Agreement. See the linked PDF for the complete text.]
DATED this 13th day of February, 2007, effective March 9, 2006.
LAWRENCE G. WASDEN
Attorney General
Analysis by:
CLIVE J. STRONG
MICHAEL ORR
Deputy Attorneys General