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Water Judge Rules on Swan Falls Controversy by Jennifer Sandmann Times-News, August 25, 2004

TWIN FALLS -- The state's water court says it won't reopen an agreement over Idaho Power Co.'s water rights when deciding how other water users are affected by it.

Fifth District Judge John Melanson, in a written decision this week, said he does not intend to entertain issues pertaining to the interpretation of the Swan Falls agreement.

That means any reference to the agreement in water rights finalized by the court would not alter how the rights are administered. Instead, acknowledgment of Swan Falls would be intended to avoid long-term ambiguity surrounding water use in Idaho.

Swan Falls is a 1984 agreement spelled out in state law that allows for more groundwater development in the Magic Valley while setting protected water flows in the Snake River downstream near Murphy for Idaho Power's hydroelectric dams.

To ensure that the state would be able to enforce the minimum river flows, a legal accounting of water rights in the Snake River Basin was needed. The Snake River Basin Adjudication emerged. It's the state's massive water rights case that involves most Idaho water users who operate with state-issued water rights to irrigate farms and pastures, run businesses and water livestock.

Some water attorneys speculated relitigation of the contentious Swan Falls issue could be the outcome of dredging it up in the SRBA.

But they also said the varied interpretations of the agreement that surfaced when negotiations were attempted to resolve the dilemma, and the threat that objections would be filed to water rights that don't reference Swan Falls, illustrate the need to tackle it.

Melanson summed up the issue this way: Should the Swan Falls agreement be addressed or memorialized somehow when water rights are issued? And if so, how?

"This court agrees, in part, that the Swan Falls Agreement needs to be addressed at some point in the SRBA. Even if the Swan Falls Contract and Agreement -- would survive without being addressed in the context of the SRBA, it would make no sense to leave room for uncertainty and create an ambiguity requiring litigation in the future," Melanson wrote in his decision signed Monday.

He noted that uncertainty is what led to the Swan Falls controversy in the first place.

Melanson granted attorneys' requests to delay the issue until 2005 when Idaho Power's water rights are scheduled to come before the court.