Can Idaho counties team up with counties in Utah and Wyoming to build a Bear River water project, and can the Water Resource Board issue bonds to fund Idaho's share?

Plain-English summary

Idaho, Utah, and Wyoming share the Bear River. Since 1958 they have governed its waters under the Bear River Compact, amended in 1978 and consented to by Congress in 1980. The Director of Idaho's Department of Water Resources asked the Attorney General five questions about how a hypothetical joint water project on the Bear River would interact with Idaho law and the compact.

Question 1: Could Idaho counties team up with counties in Utah and Wyoming under Idaho's Joint Exercise of Powers Act? The AG concluded yes, but only for purposes Idaho counties already had independent authority to pursue. Idaho counties had clear authority to engage in irrigation or drainage projects under Idaho Code §§ 31-827 and 42-2801. They had no authority to produce or sell hydroelectric power; that power had been expressly granted only to irrigation districts and cities, not counties. So a joint project could pursue irrigation or drainage but not hydroelectric power, absent new legislation.

Question 2: Could the Idaho Water Resource Board issue revenue bonds, alone or jointly, to fund Idaho's share? The AG concluded yes. Idaho Const. art. XV, § 7 gave the Board the power to issue bonds repaid from project revenues. The legislature had implemented that authority in Idaho Code § 42-1734. The only constitutional or statutory limitation was that the legislature had to authorize construction of the project before the Board issued bonds for it. The Board's bonding authority extended jointly with Utah and Wyoming through Idaho Code § 67-2328(a), provided the other states had matching authority and could exercise it jointly with Idaho. The AG also noted that the Board's bonding authority for water projects had been held constitutional and not an "impermissible state debt" in Idaho Water Resource Board v. Kramer (1976).

Question 3: If a joint project was built in Idaho, did water allocated to Utah and Wyoming count against their compact shares? The AG concluded yes. Article V of the compact said water "shall be charged against the state in which it is used regardless of the location of the point of diversion."

Question 4: Could Idaho's compact share be allocated for use in another state? The AG concluded no. Bear River water put to use in Utah or Wyoming was, by definition, part of Utah's or Wyoming's share. As to non-signatory states, the AG analyzed the structure, language, legislative history, and policy of the compact and concluded that Bear River water was not intended to be used outside the three signatory states. Federal-law characterization of the compact (Congress had consented, so the compact was federal law) immunized the conclusion from Commerce Clause attack, citing the Ninth Circuit's Intake Water decision.

Question 5: Would an interbasin transfer of Bear River water from Idaho to Utah or Wyoming create precedent for other Idaho river basins? The AG concluded no. Article I of the compact expressly disclaimed any precedent for other interstate streams, and the compact (federal law) controlled, not Idaho law.

Currency note

This opinion was issued in 1989. 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.

Background and statutory framework

The Bear River flows from the Uinta Mountains in northeastern Utah, through Wyoming, back into Utah, north into Idaho, and finally back into Utah and the Great Salt Lake. The 1958 Bear River Compact and its 1978 amendments split the river into three divisions (Upper, Central, and Lower) with detailed allocations among the three states. Article V provides allocations for the Lower Division. Article VI addresses storage and surplus water in the Central and Upper Divisions, including specific acre-foot allocations for Utah, Wyoming, and Idaho.

Idaho's Water Resource Board is a constitutional entity created by the 1965 amendment to Idaho Const. art. XV, § 7. The 1980 amendment to that section adjusted legislative oversight of the Board's water-planning role. Section 7 expressly grants the Board power to construct and operate water projects, issue project-revenue bonds, generate and wholesale hydroelectric power at the site of production, appropriate public waters as trustee, acquire and encumber title to real property, and formulate the state water plan. Idaho Code § 42-1730 implements those powers. Idaho Code § 42-1734(11) requires legislative authorization for the Board to construct any water project.

The Joint Exercise of Powers Act (Idaho Code §§ 67-2326 to 67-2333) lets Idaho public agencies exercise their powers jointly with the state, with other Idaho public agencies, with the United States, or with other states' public agencies. The crucial limit at § 67-2328(a) is that nothing in the act extends the joint actor's jurisdiction beyond what it could do alone. So the joint exercise tracks each agency's underlying authority.

The compact's federal-law status matters for Commerce Clause analysis. Sporhase v. Nebraska (1982) held that water is an article of commerce subject to the dormant Commerce Clause. But once Congress consents to a compact, the compact "presents a federal question" and "becomes a law of the United States" (Cuyler v. Adams, 1981). The Ninth Circuit applied that reasoning to the Yellowstone River Compact in Intake Water Co. (1985), concluding the compact is federal law and immune from Commerce Clause attack. The same characterization protects the Bear River Compact's restrictions.

Common questions

Could Idaho counties join Utah/Wyoming counties on water projects?

Under the 1989 reading, yes, for purposes Idaho counties already had authority to pursue. Irrigation and drainage of lands within the respective counties were authorized. Hydroelectric power generation was not, since the legislature had granted that authority only to irrigation districts and cities. Each agreement had to be filed with the Idaho Secretary of State, who would request an AG opinion that the agreement did not violate the U.S. or Idaho Constitution or any Idaho statute.

Did the Water Resource Board need legislative approval before issuing bonds?

Bonding itself didn't require explicit legislative approval, but project construction did, under Idaho Code § 42-1734(11). The AG observed that the practical consequence was thin: bond markets would generally not finance a water project without legislative approval anyway.

If Utah took water diverted in Idaho, whose compact share got charged?

Utah's. Article V of the compact said water "shall be charged against the state in which it is used regardless of the location of the point of diversion." That rule answered the symmetric question for Idaho-Wyoming arrangements as well.

Could Idaho sell or allocate part of its compact share to Nevada or California?

No. Bear River water put to beneficial use outside Idaho would, by definition, no longer be part of Idaho's share. As to non-signatory states more broadly, the compact's structure, language, legislative history, and policy supported confining use to the three signatory states.

Did using Bear River water across state lines violate the dormant Commerce Clause?

No. Once Congress consented to the compact, it became federal law. Federal law cannot be a state law impermissibly burdening commerce. The Ninth Circuit reached the same conclusion for the Yellowstone River Compact in Intake Water Co. (1985).

Did permitting interbasin transfer of Bear River water create precedent for other Idaho river basins?

No. Article I of the compact expressly disclaimed any precedent for other interstate streams. And because the compact (federal law) controlled the transfers, not Idaho law, no Idaho-law precedent could be created.

Citations

Constitutions: Idaho Const. art. XV, § 7; Idaho Const. art. XVIII, § 11; U.S. Const. art. I, § 10, cl. 3; U.S. Const. art. VI, cl. 2.

Idaho statutes: Idaho Code §§ 31-827, 42-313, 42-1732, 42-1734, 42-2801, 42-3402, 50-325, 67-2326 to 67-2333.

Federal statutes: Act of March 17, 1958, Pub. L. No. 85-348, 72 Stat. 38; Act of February 8, 1980, Pub. L. No. 96-189, 94 Stat. 4.

Sister-state statutes: Utah Code Ann. § 73-16-2 (1980); Wyo. Stat. § 41-12-101 (Supp. 1988).

Idaho cases: Idaho Power Co. v. State, 104 Idaho 570, 661 P.2d 736 (1983); Idaho Water Resource Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976); Shillingford v. Benewah County, 48 Idaho 447, 282 P. 864 (1929).

Federal cases: Cuyler v. Adams, 449 U.S. 433 (1981); Intake Water Co. v. Yellowstone River Compact Comm'n, 769 F.2d 568 (9th Cir. 1985), cert. denied, 476 U.S. 1163 (1986); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959); Sporhase v. Nebraska, 458 U.S. 941 (1982); Texas v. New Mexico, 462 U.S. 554 (1983).

Other authority: H.R. Rep. No. 1375, 85th Cong., 2d Sess. (1958); 103 Cong. Rec. 1628 (1957).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP89-01.pdf

Original opinion text

Best-effort transcription from the official PDF, which includes typographical artifacts in the original. Refer to the linked PDF for authoritative text.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

BOISE 83720

TELEPHONE
(208) 334-2400

ATTORNEY GENERAL OPINION NO. 89-1

R. Keith Higginson, Director
Department of Water Resources
Statehouse Mail
Boise, ID 83720

Per Request for Attorney General's Opinion

QUESTIONS PRESENTED:

1. Do Idaho counties have the authority to enter into an agreement with counties of Utah and Wyoming to develop a joint water project on the Bear River?

2. Does the Idaho Water Resource Board have authority to issue revenue bonds, either separately or jointly with the other compacting states, to fund Idaho's share of a joint water project on the Bear River within Idaho, or within Utah or Wyoming?

3. If a joint project is developed in Idaho, is project water allocated to Utah and Wyoming chargeable to their shares of Bear River water under the compact?

4. May any portion of Idaho's share of the waters of Bear River under the Bear River Compact be allocated for use in another state?

5. If there is an interbasin transfer of Bear River water from a joint project in Idaho, would this create a legal precedent affecting other river basins in the state?

CONCLUSIONS:

1. Idaho counties have authority to join in an agreement with counties of Utah and Wyoming to develop a joint water project on the Bear River. Under Idaho law, however, the purposes of the water project must be limited to the irrigation or drainage of lands in the respective counties.

2. The Idaho Water Resource Board has authority to issue revenue bonds, either separately or jointly with the other compacting states, to fund Idaho's share of a joint water project on the Bear River within Idaho, Utah, or Wyoming. However, the Idaho Legislature must authorize construction of the project before the Idaho Water Resource Board may issue the revenue bonds.

3. If a joint water project on the Bear River is developed in Idaho, water allocated for beneficial use in Utah and Wyoming will be charged against Utah's or Wyoming's share of water under the Amended Bear River Compact.

4. Idaho's share of Bear River water under the Bear River Compact cannot be allocated for use in another state.

5. An interbasin transfer of Bear River water from a joint project in Idaho to Utah or Wyoming will not create a legal precedent affecting other river basins in the state.

[Full analysis follows in the original PDF, which addresses each question through the Joint Exercise of Powers Act, Idaho Const. art. XV § 7, Idaho Code § 42-1734, the Bear River Compact provisions, the Compact Clause and Supremacy Clause, the dormant Commerce Clause analysis under Sporhase and Intake Water Co., and the legislative history of the compact. Refer to the linked PDF for the complete text and footnotes, including the discussion of Idaho Water Resource Board v. Kramer on bonding constitutionality and the discussion of Idaho Power Co. v. State on legislative-oversight limits.]

AUTHORITIES CONSIDERED:

Constitutions
Idaho Constitution art. XV, § 7.
Idaho Constitution art. XVIII, § 11.
U.S. Constitution art. I, § 10, cl. 3.
U.S. Constitution art. VI, cl. 2.

Idaho Statutes
Idaho Code § 31-827.
Idaho Code § 42-313.
Idaho Code § 42-1732.
Idaho Code § 42-1734.
Idaho Code § 42-2801.
Idaho Code § 42-3402.
Idaho Code § 50-325.
Idaho Code §§ 67-2326 to 67-2333.

Idaho Cases
Idaho Power Co. v. State, 104 Idaho 570, 661 P.2d 736 (1983).
Idaho Water Resource Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).
Shillingford v. Benewah County, 48 Idaho 447, 282 P. 864 (1929).

Other Statutes
Act of March 17, 1958, Pub. L. No. 85-348, 72 Stat. 38.
Act of February 8, 1980, Pub. L. No. 96-189, 94 Stat. 4.
Utah Code Ann. § 73-16-2 (1980).
Wyo. Stat. § 41-12-101 (Supp. 1988).

Other Cases
Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981).
Intake Water Co. v. Yellowstone River Compact Comm'n, 769 F.2d 568 (9th Cir. 1985), cert. denied, 476 U.S. 1163, 106 S.Ct. 2288, 90 L.Ed.2d 729 (1986).
Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959).
Sporhase v. Nebraska, 458 U.S. 941, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982).
Texas v. New Mexico, 462 U.S. 554, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983).

Other Authorities
H.R. Rep. No. 1375, 85th Cong., 2d Sess. (1958).
103 Cong. Rec. 1628 (1957).

DATED this 19th day of January, 1989.

JIM JONES
Attorney General

Analysis by:
PHILLIP J. RASSIER
Deputy Attorney General
Idaho Department of Water Resources

CLIVE J. STRONG
Deputy Attorney General
Chief, Natural Resources Division