Opinion 89-1

STATE O F IDAHO OFFICE OF THE ATTOFiNEY GENERAL B O I S E 83720 ATTORNEY GENERAL OPINION NO. 89-1 R I Keith Higginson, ~ i r e c t o r artment of Water Resources tehouse Mail se, I D 83720 Per Request f o r Attorney ~ e n e r a l ' s Opinion TELEPHONE 12081 334-2400 STIONS PRESENTED : 1. Do Idaho counties have the authority t o reement with counties of U t r - h and Wyoming t o develop a joint c t on t h e Bear River? oes t h e Idaho Water Resource Board have authority t o nue bonds, e i t h e r separately or jointly with the other s t a t e s , t o fund Idaho's share of a joint water project River within Idaho, o r within Utah or Wyoming? a j o i n t p r o j e c t i s developed i n Idaho, i s project ated t o Utah and Wyoming chargeable t o t h e i r shakes of ., water under the compact? May any portion of Idaho's share of the waters or' Bear e r t h e Bear River Compact be allocated f o r use i n another . I f t h e r e i s an i n t e r b a s i n transfer of Bear River water a j o i n t p r o j e c t i n Idaho, would t h i s create a legal precedent f f e c t i n g other r i v e r basins i n the s t a t e ? enter into an R . Keith Higginson, Director Department of Water Resourc6?s ONCLUS IONS : 1. Idaho counties have authority t o join i n - an agreement with counties of Utah and Wyoming t o develop a j o i n t water project on t h e Bear River. Under Idaho law, however, the purposes of the water p r o j e c t must be limited t o the i r r i g a t i o n o r drainage of lands i n t h e respective counties. 2 . The Idaho Water Resource Board has authority t o issue revenue bonds, e i t h e r separately o r jointly with the other compacting s t a t e s , t o fund Idaho's share of a joint water project on t h e Bear River within Idaho, Utah, o r Wyoming. However, the Idaho Legislature must authorize construction of the project before t h e Idaho Water Resou.rce Board may issue the revenue bonds. 3. I f a j o i n t water p r o j e c t on the Bear River i s developed i n Idaho, water allocated f o r beneficial use i n Utah and Wyoming w i l l be charged against Utah' s o r Wyoming's share of water under t h e Amended Bear River Compact. 4. Idaho' s share of Bear River water under the Bear River Compact cannot be allocated f o r use i n another s t a t e . 5. An i n t e r b a s i n t r a n s f e r of Bear River water from a joint p r o j e c t i n Idaho t o Utah o r Wyoming w i l l not create a legal precedent a f f e c t i n g other r i v e r basins i n the s t a t e , Question No. 1 Your f i r s t question asks whether counties i n Idaho have authority t o e n t e r i n t o agreements with counties i n Utah and Wyoming t o develop a j o i n t water project on the Bear River. The J o i n t Exercise of Powers Act, Idaho Code 5 5 67-2326 t o 67-2333 ( 1 9 8 0 and Supp. 1988), authorizes public agencies i n Idaho to..enter. i n t o cooperative agreements with other public agencies i n Idaho and other s t a t e s . Idaho Code § 67-2327 defines "public agency" t o mean any c i t y o r p o l i t i c a l subdivision of t h i s s t a t e , including counties. Idaho Code 5 67-2326 s t a t e s t h e purpose of the act: I t i s t h e purpose of t h i s a c t t o permit the s t a t e and public agencies t o make t h e most e f f i c i e n t use of t h e i r powers by enabling them t o cooperate t o t h e i r mutual advantage and . , * R. Keith Higginson, Director Department of Water ResourcGs Page 3 thereby provide services and f a c i l i t i e s and perform functions i n a manner t h a t w i l l . best accord with geographic, economic, population, and other f a c t o r s influencing the needs and development of t h e respective e n t i t i e s . Idaho Code § 67-2328(a) s p e l l s out the circumstances under which a public agency may p a r t i c i p a t e i n a joint exercise of powers: ( a ) Any power, ~ r i v i l e q e or authority, authorized by t h e Idaho Constitution, s t a t u t e o r c h a r t e r , held by t h e s t a t e of Idaho o r a public aqency of s a i d s t a t e , may be exercised and enjoyed j o i n t l y with the s t a t e of Idaho or any public aqency of t h i s s t a t e havinq the same powers, privileqe o r authority; but never beyond t h e l i m i t a t i o n of such powers, p r i v i l e g e s o r authority; and the s t a t e o r public aaency of t h e s t a t e , may exercise such powers, privileges and authority jointly with t h e United S t a t e s , any other s t a t e , o r public aqency of any of them, t o the extent t h a t the laws of the United S t a t e s or s i s t e r s t a t e , s r a n t similar powers, privileges or authority, t o t h e United S t a t e s and i t s public agencies, o r t o t h e s i s t e r s t a t e and i t s ~ u b l i c agencies; and provided the laws of the U n ~ t e d States o r a s i s t e r s t a t e allow such exercise of joint power, privilege o r aut3ority. The s t a t e or any public agency thereof when acting j o i n t l y with another public agency of t h i s s t a t e may exercise and enjoy t h e power, privilege and a u t h o r i t y conferred by t h i s act; but nothing i n t h i s a c t s h a l l be construed t o extend the j u r i s d i c t i o n , power, privilege or authority of t h e s t a t e or public agency thereof, beyond the power, privilege o r authority said s t a t e or public agency might have i f acting alone. (Emphasis added.) Idaho counties desiring t o exercise t h e i r powers jointly with counties of Utah and Wyoming t o develop a joint water project on t h e Bear River a r e subject t o t h e above restrictions. The Idaho counties must f i r s t possess t h e independent authority t o develop a water p r o j e c t before they a r e authorized t o exercise those powers j o i n t l y with counties i n Utah and Wyoming. - Id. The counties of - R. Keith Higginson, Director I . Department of Water Resources Page 4 Utah and Wyoming are required to possess similar authority to develop a water project and to exercise those powers jointly with Idaho counties. - Id. Whether or not the counties of Utah and Wyoming possess such authority is a question best answered by their respective states and is not addressed in this opinion. Any joint or cooperative exercise of powers under the act ecpires a formal agreement between the cooperating public gencies. Idaho Code 3 67-2328. That section also prescribes the orm of the agreement and various substantive provisions which must e included such, as the duration of the agreement, financing rovisions, and various administrative provisions. Any agreement under the act involving a sister state must be filed with the 1daho Secretary of State. Idaho Code 3 67-2329. The agreement shall not become effective until an opinion from the rney General, requested by the Secretary of State, states the ement does not violate the U.S. or Idaho constitution or any o statute. Failure of the Attorney General to render an nion within thirty days of receipt from the Secretary of State stitutes approval of the agreement. As noted above, to enter into a joint exercise of powers agreement, Idaho counties must have independent authority to engage in the type of activity contemplated. Thus, it is necessary to consider the independent authority of counties in Idaho to develop water projects. Idaho Code 3 31-827 pertains to the construction of water projects. It authorizes the boards of county commissioners to expend up to "$1000 in procuring data, surveys, estimates, measurements, maps, plats, and all other matter which may be necessary to the promotion of any irrigation scheme or system," provided a petition is filed with the board signed by at least one hundred (100) taxpayers of the county requesting such expenditure. The provisions of title 42, ch. 28, Idaho Code, give broader authority to counties for the construction of water projects. For example, Idaho Code 5 42-2801 authorizes Idzho counties to act independently or jointly to promote the irrigation and drainage of lands lying within their respective borders, provided that county bonds issued or sold for such purposes shall be approved by a two-thirds vote of the electors of the counties. A county acting independently under Idaho Code 5 42-2801 is authorized to develop a water project only for the irrigation or drainage of lands within that county. If a county develops a project jointly with other Idaho counties, lands within each participating county may be . & . R. Keith Higginson, Director Department of Water ~esourcgs Page 5 *I **. (-- served by the project. Likewise, if one or more Idaho counties .develop a water project jointly with one or more authorized Utah or Wyoming counties having similar powers, lands within the cooperating counties of each state may be served by the project. Idaho Code § § 31-827 and 42-2801 make it clear that counties have broad authority to engage in water projects if €he purpose of the project is irrigation or drainage of lands within the respective counties; however, there are no statutes conferring on counties the authority to produce and sell hydroelectric power. The legislature, by way of contrast, has expressly granted to irrigation districts the power to construct and operate electric power plants pursuant to Idaho Code 5 42-313. Likewise, the egislature has expressly conferred on cities the authority to own nd operate electric power plants pursuant to Idaho Code 5 50-325. his implies that the legislature did not intend to confer such owers on counties. The absence of statutory authority for counties to engage in power projects is important since counties have only such powers as are specifically delegated by law or reasonably implied from powers delegated. Idaho Constitution, art. XVIII, 11; Shillingford v. Benewah County, 48 Idaho 447, 452, 282 P. 864, 866 (1929). Since the legislature has not given Idaho counties authority to produce and sell electric power as separate entities, Idaho counties cannot exercise such powers jointly with lounties in Utah or Wyoming. Idaho counties lack authority to enter into an agreement with counties of other states to develop a joint water project for the production and sale of hydroelectric power. In conclusion, Idaho counties have authority to join in an agreement with counties of Utah and Wyoming to develop a joint water project on the Eear River, assuming the counties in the sister states possess like authori-ty. Under Idaho law, however, the purposes of such a water project must be limited to the irrigation or drainage of lands within the respective counties. In order to participate in a joint hydroelectric project, interested counties should seek legislation authorizing them to enter into such agreements. guestion No. 2 The second question asks whether 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, or within R . Keith Higginson, Director . . Department of Water Resources * Page 6 -6 * C Utah o r Wyoming. Before addressing t h i s question, it i s necessary t o review ~ d a h o ' s r o l e i n t h e management of the waters of the Bear River. Since 1958, t h e waters of t h e Bear River have been governed by a compact among t h e s t a t e s of Idaho, Utah and Wyoming. Congress consented t o t h e o r i g i n a l compact i n the Act of March 17, 1958, Pub. L. No. 85-348, 72 S t a t . 38. The compacting s t a t e s negotiated an Amended Bear River Compact i n 1978. Congress consented t o these amendments i n t h e Act of February 8, 1980, Pub. L. No. 96-189, 94 S t a t . 4. The l e g i s l a t u r e s of Idaho, Utah and Wyoming had r a t i f i e d t h e compact e a r l i e r . Idaho Code 9 02-3402 (Supp. 1988); Utah Code Ann. 9 73-16-2 (1980); Wyo. S t a t . 9 41-12-101 (Supp. 1988). A r t i c l e VII of t h e amended compact recites the policy of the compacting s t a t e s t o encourage additional water projects on the r River: I t i s t h e policy of the signatory s t a t e s t o encourage additional projects f o r the development of t h e water resources of the Bear River t o obtain the maximum beneficial use of water with a minimum of waste, and i n furtherance of such policy, authority i s granted within t h e limitations provided by t h i s compact, t o investigate, plan, construe"., and operate such projects without regard ~o s t a t e boundaries, provided t h a t water r i g h t s f o r each such project s h a l l , except a s provided i n a r t i c l e VI, paragraphs A and B thereof, be subject t o r i g h t s theretofore i n i t i a t e d and i n good standing. Idaho Code 9 42-3402 (Amended Bear River Compact, a r t . VII) . With t h i s introduction we now t u r n t o the question of the authority of t h e Idaho Water Resource Board t o issue revenue bonds f o r a water p r o j e c t on t h e Bear River. The board i s a c o n s t i t u t i o n a l e n t i t y established i n 1965 pursuant t o Idaho Const. a r t . XV, 5 7 . The c o n s t i t u t i o n a l provision, as amended i n 1980, reads: 9 7 - S t a t e Water Resource Agency. -- There s h a l l be constituted a Water Resource Aqency, composed as t h e Legislature may now or h e r e a f t e r prescribe, which s h a l l have power t o construct and operate water projects; t o issue R . Keith Higginson, Director ' ' Department of Water Resourc$s Page 7 5 bonds, without s t a t e obligation, t o be repaid from revenues of projects; t o generate and wholesale hydroelectric power a t the s i t e of production; t o appropriate public waters as t r u s t e e f o r Agency projects; t o acquire, t r a n s f e r and encumber t i t l e t o real property f o r water p r o j e c t s and t o have control and administrative authority over s t a t e lands required f o r water projects; a l l under such laws as mav be prescribed by the Leqislature. Additionally, t h e S t a t e Water Resource Agency s h a l l have power t o formulate and implement a s t a t e water plan f o r optimum development of water resources i n t h e public i n t e r e s t . The Legislature of t h e S t a t e of Idaho shall have t h e authority t o amend or r e j e c t the s t a t e water plan i n a manner provided by law. Thereafter any change i n the s t a t e water plan s h a l l be submitted t o the Legislature of the S t a t e of Idaho upon t h e f i r s t day of a regular session following t h e change and the change s h a l l become e f f e c t i v e unless amended or r e j e c t e d by law within s i x t y days of its admission t o the Legislature. ; Idaho Const., a r t . XV, Q 7 (emphasis added). 4 .Ir The l e g i s l a t u r e established the Idaho Wate, Resource Board as t h e c o n s t i t u t i o n a l water agency called f o r by the constitutional provision. Idaho Code Q 42-1732 (Supp. 1988). Idaho Code Q 42-1730 l i s t s t h e following pertinent powers and duties of the board: (1) To have and exercise a l l of the rights, powers, duties and p r i v i l e g e s vested by a r t i c l e XV, section 7, of the constitution of t h i s s t a t e i n the water resource agency .... ( 5 ) To generate and wholesale hydroelectric power a t the s i t e of production i f such power production i s connected with another purpose f o r such project. ( 6 ) To f i l e applications and obtain permits i n t h e name of the board, t o appropriate, store, R. Keith Higginson, Director . . Department of Water Resourcss Page 8 0 o r use t h e unappropriated waters of any body, stream, o r other surface or underground source of water f o r s p e c i f i c water projects. Such f i l i n g s and appropriations by the board, o r any water r i g h t s owned o r claimed by the board, s h a l l be made i n t h e same manner and subject t o a l l of t h e s t a t e laws r e l a t i n g t o appropriation of water, with t h e exception t h a t the board w i l l n o t be required t o pay any fees required by t h e laws of t h i s s t a t e f o r i t s appropriations. The f i l i n g s and appropriations by t h e board s h a l l be subject t o contest o r l e g a l action the same as any other f i l i n g and appropriation and such f i l i n g s and appropriations s h a l l not have priority over or a f f e c t existing p r i o r water r i g h t s of any kind o r nature; provided t h a t t h e board shall have t h e r i g h t t o f i l e f o r water riqhts with appropriate o f f i c i a l s of other s t a t e s as t r u s t e e f o r p r o j e c t users, and t o do a l l things necessary i n connection therewith; ( 7 ) To finance s a i d projects with revenue bonds o r such moneys as may be available; (11) - To present t o the governor f o r presentation t o t h e l e g i s l a t u r e not l a t e r than t h e 30th of November p r i o r t o the convening of a regular l e g i s l a t i v e session the f i n a l report containing the complete plans, costs and f e a s i b i l i t y estimates f o r any water project which t h e board recommends t h a t the s t a t e construct i n accordance with the comprehensive s t a t e water plan; and t o construct any water p r o j e c t s p e c i f i c a l l y autkorized by the l e g i s l a t u r e ; Idaho Code 3 42-l73o(l), ( 5 ) , ( 6 ) , ( 7 ) , (11) (Supp. 1988) (emphasis added). The only pertinent constitutional and statutory limitation placed on t h e board's power regarding e i t h e r financing or construction of water p r o j e c t s i s the requirement of legislative R. Keith Higginson, Director Department of Water Resources Page 9 authorization to construct a project. Idaho Code 3 42-1734(11). 1 There app2ar to be no limitations on the board's financing authority. This difference is not easily explained because t h ~ policy reasons are substantially the same for requiring legislative approval either of financing or of construction of water projects. However, this difference in statutory authority has few practical consequences because it is unlikely that any bonding authority would accept the risk of financing a water project without legislative approval. Since the Idaho Water Resource Board is a "public agency," it may exercise its powers, privileges and authority jointly with the states of Utah and Wyoming. Idaho Code 3 67-2328(a). Thus, the board has authority to issue revenue bonds to fund Idaho's share of a joint water project on the Bear River within Idaho, Utah or Wyoming. This joint exercise of power is subject to the requirements that the other states have the power to issue similar bonds in their respective states and the authority to jointly exercise that power with the Idaho Water Resource Board. In conclusion, if specific authorization is given by the Idaho legislature, the Idaho Water Resource Board may construct water his opinion does not address whether this limitation on the board's authority to construct water pros~cts is valid. Idaho Const. art. XV, g 7 specifically authorizes the board to construct and operate water projects "all under such laws as may be prescribed by the Legislature. " In Idaho Power Co. v. State, 104 Idaho 570, 661 P.2d 736 (1983)) the Idaho Supreme Court voided as unconstitutional a statutory provision authorizing legislative oversight regarding the board's water planning functions. The court interpreted the quoted phrase as applying "primarily to procedural matters, and not to the specific, substantive grants of power enumerated in art. 15, 3 7. " - Id. 104 Idaho at 573, 661 P. 2d at 739. In 1984, the electorate approved an amendment to Idaho Const. art. XV, 9 7, that specifically authorized legislative oversight of the board's water planning Functions. The amendment in 1984 did not address the board's power to construct and operate water projects. 2 ~ h e board1 s authority to issue revenue bonds for water projects has been held not to create an "impermissible state debt or liability.". Idaho Water Resource Board v. Kramer, 97 Idaho 535, 556, 548 P.2d 35, 56 (1976). R. Keith Higginson, Director Department of Water Resources Page 10 p r o j e c t s on t h e Bear River i n Idaho, Utah, or Wyoming. The board could issue revenue bonds t o fund Idaho's share of a joint water p r o j e c t constructed by another e n t i t y without legislative approval. guestion No. 3 8 I f a j o i n t Bear River water project i s developed i n Idaho, question number t h r e e asks whether project water allocated t o Utah and Wyoming i s chargeable t o t h e i r shares of Bear River water under t h e compact? The compact divides t h e Eear River and i t s t r i b u t a r i e s into t h r e e divisions . The t h r e e divisions are designated the Upper, Central and Lower Divisions: 3 . "Upper Division" means the portion of Bear River from i t s source i n the Uinta Mountains t o and including Pixley Dam, a diversion dam i n t h e Southeast Quarter of Section 25, Township 23 North, Range 120 West, Sixth Principal Meridian, Wyoming; 4. "Central Division" means t h e portion of Bear River from Pixley Dam t o and including Stewart Dam, a diversion dam i n Section 34, Township 13 South, Range 44 East, Soise Base and Meridian, Idaho; 5. "Lower Division" means the portion of t h e Bear River between Stewart Dam and Great S a l t Lake, including Bear Lake and i t s t r i b u t a r y drainage; Idaho Code 3 42-3402 (Amended Bear River Compact, a r t . 11). A r t i c l e V of t h e amended compact allocates water depletions i n t h e Lower Division, which a r e not based on beneficial use pri'or t o January 1 , 1976, f o r use i n Idaho and Utah. Article V specifically provides t h a t : A . Water r i g h t s i n the Lower Division acquired under t h e laws of Idaho and Utah covering water applied t o beneficial use p r i o r t o January 1, 1976, are hereby recognized and s h a l l be administered i n accordance with s t a t e law based on p r i o r i t y of r i g h t s a s provided i n a r t i c l e IV, . - . . R . Keith Higginson, Director Department of Water ~ e s o u r c g s Page 11 c.. paragraph A 3 . Rights t o water f i r s t applied t o beneficial use on or a f t e r January. 1, 1976, s h a l l be s a t i s f i e d from the respective a l l o c a t i o n s made t o Idaho and Utah i n t h i s paragraph and t h e water allocated t o each s t a t e s h a l l be administered i n accordance with s t a t e law. Subject t o the foregoing provisions, the remaining water i n the Lower Division, including ground water tributary t o t h e Bear River, i s hereby apportioned f o r use i n Idaho and Utah a s follows: (1) Idaho s h a l l have the f i r s t right t o t h e use of such remaining water resulting i n an annual depletion of not more than 125,000 acre-feet. ( 2 ) Utah s h a l l have the second right t o the use of such remaining water resulting i n an annual depletion of not more than 275,000 acre-feet. ( 3 ) Idaho and Utah s h a l l each- have an additional r i g h t t o deplete annually on an equal b a s i s , 75,000 acre-feet of t h e remaining water a f t e r the r i g h t s provided by subparagraph? (1) a ~ d ( 2 ) above have been s a t i s f i e d . ( 4 ) Any remaining water i n the Lower Division a f t e r t h e allocations provided f o r i n subparagraphs (1), ( 2 ) , and ( 3 ) above have been s a t i s f i e d shall be divided; t h i r t y (30) percent t o Idaho and seventy (70) percent t o Utah. B. Water allocated under the above subpzragraphs s h a l l be charqed against the s t a t e i n which it is used regardless of t h e location of t h e point of diversion. (Emphasis added.) Similarly, t h e compact language implies t h a t additional storage r i g h t s developed by t h e compacting s t a t e s i n the Central and Upper Divisions of t h e Bear River above Stewart Dam be charged against t h e s t a t e responsible f o r the storage and use of the water. For example, a r t . VI, para. A , grants 35,500 acre-feet of storage R. Keith Higginson, Director . . I Department of Water Resources Page 12 .- C per year "for use in Utah and Wyoming" on an equal basis, and 1,000 acre-feet of storage per year on Thomas Fork "for use in Idaho." Above these amounts, art. VI, para. B, grants an additional 70,000 acre-feet of annual storage "for use i n Utah and Wyoming to be divided equally" and 4,500 acre feet of Bear River annual storage "for use in Idaho. " If water surplus to that allocated under paragraphs A and B of art. VI occurs in the Central and Upper Divisions, para. C of art. VI provides how the three states may utilize this surplus water. Paragraph C defines surplus water as water "that otherwise would be bypassed or released from Bear Lake at times when all other direct flow and storage rights are satisfied." Storage rights under paragraph C shall be exercised with equal priority among the three states on the following basis: "six (6) percent thereof to Idaho; forty-seven (47) percent thereof to Utah; and forty-seven (47) percent thereof to Wyoming." It is concluded that, as is the case with the Lower Division under art. V of the compact, any water allocated in the Central and Upper Divisions under art. VI shall be charged against the state or states in which the water is used regardless of the location of the point of diversion. Ouestion No. 4 Question four asks whether any portion of ldahols share of Bear River water under the compact legally can be allocated for use in another state. We analyze this question first with regard to the other two signatory states, then with regard to non-signatory states. The compact clause of the U.S. Constitution requires that congressional consent be given before any state may "enter into any agreement or compact with another state." U.S. Const. art. I, 5 10, cl. 3. Once congressional consent has been given, the interstate compact is transformed "into a law of the United States." Cuvler v. Adams, 449 U.S. 433, 438, 101 S. Ct. 703, 707, 66 L. Ed.2d 641, 648 (1981). "One consequence of this metamorphosis is that, unless the compact to which Congress has consented is somehow unconstitutional, no court may order relief inconsistent with its express terms." Texas v. New Mexico, 462 U.S. 554, 564, 103 S. Ct. 2558, 2565, 77 L. Ed.2d 1, 12 (1983). Since Congress has given consent to the Amended Bear River Compact, Act of Feb. 8, 1980, Pub. L. No. 96-189, 94 Stat. 4, the compact has the force and effect of federal law. R. Keith Higginson, Directox Department of Water ~ e s o u r c e s Page 13 The supremacy clause of t h e Constitution requires t h a t laws of t h e United S t a t e s be t r e a t e d a s "the supreme law of the land." U . S . Const. a r t . V I , c l . 2 . A l l s t a t e laws i n d i r e c t c o n f l i c t with f e d e r a l laws a r e preempted by t h e federal laws. Article V I I I of the Bear River Compact mandates the following with respect t o water diverted f o r use i n another s t a t e : A. No s t a t e s h a l l deny the right of the United S t a t e s of Am~rica, and subject t o the conditions h e r e i n a f t e r contained, no s t a t e s h a l l deny t h e r i g h t of another signatory s t a t e , any person o r e n t i t y of another signatory s t a t e , t o acquire rights t o the use of water o r t o construct o r t o participate i n t h e construction and use of diversion works and storage reservoirs with appurtenant works, canals, and conduits i n one s t a t e for use of water i n another s t a t e , e i t h e r directly o r by exchange. Water r i g h t s acquired f o r out-of-state use s h a l l be appropriated i n the s t a t e where the p o i n t of diversion i s located i n t h e manner provided by law f o r appropriation of water f o r use within such s t a t e . E . Rights t o t h e use of water acquired under t h i s A r t i c l e s h a l l i n a l l respects be subject t o t h i s Compact. Idaho Code 5 42-3402 (Amended Bear River Compact, a r t . VIII). The conclusion t o be drawn with regard t o t h e other two signatory s t a t e s i s t h a t Bear River water may be appropriated and diverted i n Idaho f o r use i n Utah or Wyoming. However, water put t o beneficial use i n Utah o r Wyoming is, by dezlnition, not p a r t of Idaho's share of Bear River water and such water w i l l be charged. against Utah's o r Wyoming's share of Bear River water under the compact. Any s t a t e law t o t h e contrary w i l l be preempted, since t h e compact has t h e force and e f f e c t of federal law. T h e compact i s s i l e n t on t h e second part of t h i s question, i . e . , does not say whether any of Idaho's share of Bear River water may be acquired f o r use by a non-signatory s t a t e . The Amended Bear River Compact n e i t h e r expressly grants nor denies non-signatory s t a t e s the r i g h t t o use Bear River water. . . . R. Keith Higginson, Directqr Department of Water Resources w e Page 14 C Restrictions preventing the transport-of water across state boundaries arguably raise an issue involving the commerce clause of the U.S. Constitution. See Sporhase v. Nebraska, 458 U.S. 941, 102 S . Ct. 3456, 73 L. Ed.2d 1254 (1982). The Sporhase decision, however, is not controlling if the restriction preventing the transport of water across state boundaries is a result of federal rather than state law. In a case decided subsequent to Sporhase, the Ninth Circuit Court of Appeals held: "[Tlhe Yellowstone River Compact was approved by Congress; because it was approved by Congress, it is federal, not state, law for purposes of Commerce Clause objections; therefore, the compact cannot, by definition, be a state law impermissibly intersering with commerce but is instead a federal law, immune from attack." Intake Water Co.' v. Yellowstone River Compact ~omm'n, 769 F.2d 568, 569-570 (9th Cir. 1985)) cert. denied, 476 U.S. 1163, 106 S. Ct. 2288, 90 L. Ed.2d 729 (1986). The same characterization is applicable to the Amended Bear River Compact. When Congress consents to an interstate compact, the construction of that compact "presents a federal question." Cuyler v. Adams, supra. For that reason, when interpreting interstate com~acts the Supreme Court has turned "to federal not state law." Petty v. Tennessee-Missouri Bridqe Conn'n, 359 U.S. 275, 280, 79 S. Ct. 785, 789, 3 L. Ed.2d 804, 809 (19.59). In Cuvler, the Court construed the inter.state compact in light of the purpose of the compact, as reflected in the structure of the compact, "its language, and its legislative history." Cuyler, 449 U.S. at 450, 101 S. Ct. at 712, 66 L. Ed.2d at 655. The major purposes of the Amended Bear River Compact enunciated in art. I, para. A, are "to remove the causes of present and future controversy over the distribution and use of the w~lters of the Bear River; to provide for efficient use of water for multiple purposes; to permit additional development of the 'water resources of Bear River; to promote interstate comity; and to accomplish an equitable apportionment of the waters of the Bear River among the compacting States." Idaho Code 3 42-3402. Although none of these purposes by themselves mandates the exclusion of non-signatory states from acquiring Bear River water, the purposes, structure, language and legislative history of the compact weigh in favor of exclusion. For example, art. VIII, para. A, of the compact mandates that "no state shall deny the right of another signatory state, any person or entity of mother signatory state, to acquire rights to R. Keith Higginson, Directog Department of Water Resources Page 15 the use of water . . . in one state for use of water in another state, ..." If the compact was not intended to restrict the use of water to the compacting states, the term "signatory state" would not have been used. In addition, when a joint water commfssioner is required for an interstate tributary in any of the divisions, the proportion of the compensation and expenses paid to such a commissioner "by each [signatory] state shall be determined by the ratio between the number of acres therein which are irrigated by diversions from such tributary, and the total number of acres irrigated from such tributary." Amended Bear River Compact art. IV, para. C (emphasis added). This compensation plan does not provide for any diversions of water outside of the signatory states. If Congress had intended to allow diversions of water outside of the signatory states, it would have provided for the non-signatory states' participation in the paying of expenses. The legislative history for the compact also supports the conclusion that Bear River water was intended to remain in the signatory states. For example, Senator Watkins, one of the sponsors of the bill to give congressional consent to the Bear River Compact, requested action on the bill be expedited "so that the available water can be utilized in the communities and farming areas of the three-State Bear River Basin." 103 Cong. Rec. 1628 ( 1 9 5 7 ) . Also, the House report on the original Bear River Compact states that the compact "[glrants additional -.:iqhts to store upstream from Stewart Dam certain specified quantities of water for further development and use in Idaho, Utah, and Wyoming." E.R. Report No. 1375, 85th Cong., 2d Sess. 2 (1958). There is no hint that Bear River water could be used outside the signatory states. In conclusion, Bear River water may be diverted in Idaho for use in Utah or Wyoming. However, Bear River water put to beneficial use in Utah or Wyoming is, by definition, part of Utah's or Wyoming's share. Otherwise, there would be no "apportionment of the waters of the Bear River among the compacting states." Amended Bear River Compact art. I, para. A. Further, the compact restricts the use of Bear River water within the boundaries of the compacting states. This conclusion is supported by the purposes, struct~re, language and legislative history of the compact. guestion No. 5 If there is an interbasin transfer of Bear River water from a joint project in Idaho, question number five asks whether this . R. Keith Higginson, Directw . Department of Water ~esdurces Page 16 would create a legal precedent affecting other river basins in the state. As previously stated, the Amended Bear River Compact has the effect of federal law. The compact requires that Idaho allow other signatory states, and any person or entity of another signatory state, to acquire rights to the use of water in Idaho for use in Utah or Wyoming. Thus, any interbasin transfer of Bear River water from Idaho to Utah or Wyoming is effectively controlled by the compact rather than by Idaho law. Article I of the compact states that, "No general principle or precedent with respect to any other interstate stream is intended to be established." Eecause the compact, rather than state law, will control the occurrence of interbasin transfers of Bear River water from Idaho to Utah or Wyoming, such transfers will not create a legal precedent affecting other river basins in Idaho. Eased upon the conclusion that the compact restricts the use of Bear River water to the signatory states, it is not necessary to consider the possible precedent created by a transfer of Bear River water to a non-signatory state. Authorities Considered: Constitutions Idaho Consti.+..ution art. XV, 5 7. Idaho Constitution art. XVIII, 5 11. U.S. Constitution art. I, 9 10, cl. 3. U.S. Constitution art. VI, cl. 2. Idaho Statutes Idaho Code 3 31-827. Idaho Code 5 42-313. Idaho Code 5 42-1732. Idaho Code 5 42-1734. Idaho Code 5 42-2801. Idaho Code 5 42-3402. Idaho Code 5 50-325. Idaho Code § § 67-2326 to 67-2333. Idaho Code 5 67-2326. Idaho Code 5 67-2327. Idaho Code 5 67-2328. Idaho Code 5 67-2329. R. Keith Higginson, D i r e c t o z Department o f Water Resources Page 17 Idaho Cases Idaho Power Co. v. S t a t e , 104 Idaho 570, 661 P.2d 736 (1983). Idaho Water Resource Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976). S h i l l i n q f o r d v. Benewah County, 48 Idaho 447, 282 P. 864 (1929). Other S t a t u t e s A c t of March 17) 1958, Pub. L. No. 85-348, 72 S t a t . 38. Act of February 8 , 1980, Pub. L. No. 96-189, 94 S t a t . 4. Utah Code Ann. § 73-16-2 (1980). Wyo. S t a t . 5 41-12-101 (Supp. 1988). Other Cases Cuyler v. Adams, 449 U . S . 433, 101 S. C t . 703, 66 L. Ed.2d 641 ( 1 9 8 1 ) . Intake Water Co. v. Yellowstone River Compact Comm'n, 769 F.2d 568 ( 9 t h C i r . 19851, c e r t . denied 476 U . S . 1163, 1C6 S. C t . 2288, 90 L . Ed.2d 729 (1986). P e t t y v. Tennessee-Missouri Bridqe Comm'n, 359 G . . S . 275, 79 S. C t . 785, 3 L . Ed.2d 804 (1959). S ~ o r h a s e v. Nebraska, 458 U . S . 941, 102 S . C t . 3456, 73 L. Ed.2d 1254 (1982). Texas v. New Mexico, 462 U . S . 554, 103 S. C t . 2558, 77 L. Ed.2d 1 (1983). t . R. Keith Higginson, Director . Department of Water ~esourE-es Page 18 Other Authorities H.R. Rep. No. 1375, 85 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 Jin CLIVE J. STRONG Deputy Attorney General Chief, Natural Resources Division