The Idaho Power Company challenge to the terms of the 1984 Swan Falls agreement ended on March 25 when the company, together with state officials and others, agreed to a “reaffirmation” of the deal, with a few adjustments.
One quick result of the agreement was introduction in the Idaho Legislature, two days later, of Senate Bill 1169, aimed at locking the new framework agreement into place. The measure said the “Public Utilities Commission shall have no jurisdiction to consider in any proceeding, whether instituted before or after the effective date of this act, any issue as to whether any electric utility, including Idaho Power Company, should have or could have preserved, maintained or protected its water rights and hydroelectric generation in a manner inconsistent with the Framework Reaffirming the Swan Falls Settlement entered into by the Governor, Attorney General and the Idaho Power Company dated March 25, 2009.”
The measure had not progressed to hearing by month’s end. The Idaho Legislature was expected to adjourn sometime in mid- to late April.
The agreement also is expected to be delivered to the Snake River Basin Adjudication court, which has been considering the Idaho Power challenge, soon.
In 1984, the Swan Falls agreement resolved a struggle between the State and Idaho Power over the company’s water rights at its Swan Falls hydroelectric facility on the Snake River. The agreement provided that Idaho Power’s water rights at its hydroelectric facilities between Milner Dam and Swan Falls – south of Boise – entitled the company to a minimum flow at Swan Falls of 3,900 cubic feet per second (cfs) during the irrigation season and 5,600 cfs during the non-irrigation season.
The 1984 agreement placed the portion of the company’s water rights beyond those minimum flows in a trust established by the Idaho Legislature for the benefit of Idaho Power and the citizens of the state. Legislation establishing the trust granted the state the authority to allocate the trust water to future beneficial uses in accordance with State law. Idaho Power retained the right to use water in excess of the minimum flows at its facilities for hydroelectric generation until it was reallocated to other uses.
Idaho Power filed suit in the Snake River Basin Adjudication in 2007 as a result of disputes about the meaning and application of the Swan Falls agreement. The company asked that the court resolve issues associated with the ownership of Idaho Power’s water rights and the application and effect of the trust provisions of the Swan Falls agreement. In addition, Idaho Power asked the court to determine whether the agreement subordinated the company’s hydropower water rights to aquifer recharge.
The new proposed settlement resolves the litigation by clarifying that the water rights held in trust by the State are subject to subordination to future upstream beneficial uses, including aquifer recharge. It also commits the State and Idaho Power to further discussions on important water management issues