12 CapitalPress.com
June 26, 2015
To date, calls have been resolved through mitigation plans
WATER from Page 1
is acting as mediator in the
discussions. “It’s too import-
ant to not be successful.”
The urgency to resolve the
longstanding problem was
heightened on May 1, when
groundwater users failed to
meet a deadline to acquire
89,000 acre feet Idaho De-
partment of Water Resourc-
es Director Gary Spackman
ordered in mitigation for this
season’s surface water inju-
ries.
But Spackman stayed cur-
tailment — which would have
affected wells junior to 1982,
including more than 86,000
acres of agricultural land, cit-
ies and industry — when the
parties announced their inten-
tions to negotiate a long-term
settlement.
Agreement terms
The sides have agreed on
broad concepts.
The Coalition has with-
drawn its methodology order,
which sets the rules governing
curtailment. Idaho Ground
Water Appropriators Inc., will
provide 110,000 acre feet of
mitigation water this season,
which should now be feasible
given heavy May rainfall.
Perhaps the hardest pill for
IGWA irrigators to swallow is
a proposed mandate that they
reduce their water usage by
roughly 13 percent in the fu-
ture to conserve 240,000 acre
feet annually, about equal to
the aquifer’s rate of decline.
The reduction would be aver-
aged out over a few years to
accommodate rotations with
higher-water crops.
IGWA would also provide
the coalition a flat 50,000 acre
feet of mitigation water annu-
ally. In wet years, mitigation
water could be left to soak
into the aquifer, called man-
aged recharge.
IGWA will also spend
about $1.1 million per year
to expand “soft conversions”
that switch well users to sur-
face water when possible.
To monitor progress, wells
would be fitted with meters,
replacing less accurate con-
sumption estimates based on
power usage. And water rights
transfers would be scrutinized
more closely.
A final term sheet address-
ing the finer points of the
agreement is due to Spack-
man by July 1, and the sides
have until Aug. 1 to get the
plan approved by as many of
their members as possible.
Groundwater users who opt
in will be granted safe har-
bor going forward; those who
don’t will remain subject to
curtailment.
The state has also agreed to
devote resources toward build-
ing aquifer levels, promising
to build new infrastructure for
conducting aquifer recharge,
with the goal of injecting
250,000 acre feet of surface
water into the aquifer annually.
“The good news is every-
one is kind of willing to do
their part, but they don’t want
to do the part their neighbor is
Carol Ryan Dumas/Capital Press
Brian Olmstead, general manager of Twin Falls Canal Co., kneels beside the Lowline Canal in Twin Falls County. Olmstead, whose company was one of two Surface Water
Coalition members that stood to gain mitigation water this season under an Idaho Department of Water Resources order that was rescinded when negotiations toward a
longterm solution began, believes it’s critical that the state stop using more groundwater than is naturally replenished.
Carol Ryan Dumas/Capital Press
Kent Giddings, left, general manager of Idaho Milk Products, visits with Rick Onaindia, CFO of
Bettencourt Dairies, and Jan Rogers, executive director of Southern Idaho Economic Development
Organization, during an open house at the company’s new technical center in Jerome, Idaho. Rogers
says Magic Valley’s food processing industry is amid a period of rapid growth.
responsible for,” Bedke said
prior to mediating negotia-
tions in Pocatello on June 18.
Change on the
horizon
Rep. Jim Patrick, R-Twin
Falls, who farms with surface
water, believes groundwater
users could achieve much of
the proposed water savings by
removing pivot end guns and
better maintaining sprinklers
to reduce leaks.
“When there’s account-
ability — and a 13 percent re-
duction creates that account-
ability — people will watch
their crops and not over-wa-
ter,” Patrick said.
But Patrick fears large-
scale curtailment would be
economically devastating.
Brian Olmstead, general
manager of Twin Falls Canal
Co., predicts farmers will also
have to change crop rotations
and farming practices. Olm-
stead, whose company was
one of two Coalition members
that stood to receive mitigation
water this season under Spack-
man’s order, anticipates well
irrigators will shift from raising
water-intensive forage crops to
more water-efficient malt bar-
ley.
“This may very well have a
limiting affect on expansion of
dairy cow levels on the aqui-
fer,” Olmstead said.
He believes growers may
opt to graze rather than plant
their least productive ground.
“There are ways to conserve
water and still make a profit,”
Olmstead said.
Olmstead hopes addition-
al savings will be achieved by
eliminating illegal diversions.
IGWA attorney Randy
Budge expects most affect-
ed groundwater users will opt
into the agreement, but agrees
they’ll have to raise fewer wa-
ter-intensive crops and fallow
some acres to meet the neces-
sary reduction.
“We’re at a crossroads
where we can have chronic
pain or acute pain,” Budge said.
Gradual decline
Farming practices of the past,
such as running canals during
winter and flood irrigating crops,
artificially enhanced aquifer lev-
els through extra seepage.
The aquifer peaked around
1960. Then levels began a
steady and continuing decline,
largely because of the rise of
efficient sprinkler irrigation and
the expansion of groundwater
pumping.
“There have been a lot of
industries built up on the water
levels that were at least tem-
porarily artificially enhanced
by early irrigation practices
of flood irrigation,” said Lyle
Swank, watermaster for the
district that includes the Upper
Snake River.
Nearly 30 years ago, Idaho
was among the first states to
acknowledge concerns with
its major groundwater source
when it commenced with the
Snake River Adjudication —
an exhaustive process to cat-
alogue tens of thousands of
water rights and establish how
much water was available to
be appropriated. The recent
completion of that process,
coupled with improvements to
state groundwater models, has
opened the door to water calls
by senior users, in a state gov-
erned by the principle “first in
time, first in right.”
To date, calls have all been
resolved through mitigation
plans, but absent change, wa-
ter managers fear the day will
come when curtailment is the
only option.
Lingering questions
The Coalition’s call stems
from spring declines at the cen-
ter of the aquifer and encom-
passes well irrigators through-
out the Snake Plain.
Growers in the aquifer’s
eastern portion are less expe-
rienced at dealing with water
calls. Swank believes they face
a steep learning curve but will
be critical to the agreement’s
success.
“There are people who ha-
ven’t been on the front lines
of this who don’t understand
how big of a concern it could
be if they don’t get a permanent
solution,” Swank said.
Growers also eagerly await
answers to questions regard-
ing how much credit farmers
should receive for their past
efforts to implement water-effi-
cient farming practices and the
amount of burden that should
be placed on junior well users
relative to pumpers with more
senior rights. Bedke said such
details will likely be addressed
by individual groundwater dis-
tricts.
There are even questions
regarding whom should be at
the table, based on a recent
court ruling Fifth District
Judge Eric Wildman rendered
in a call filed by the Rangen,
Inc., trout farm in Hagerman.
Wildman disagreed with ID-
WR’s justification for a trim
line — a practice excluding
portions of the aquifer from
calls in which the injured par-
ty would derive relatively in-
significant benefits from well
curtailments.
A trim line was also ap-
plied in the Coalition’s call,
excluding about 20 percent
of the aquifer below parts
of Rexburg, St. Anthony,
Bliss, Wendell and King Hill.
Though the Coalition’s trim
line was based on different
rationale, IDWR Deputy Di-
rector Mat Weaver said it’s
on shaky ground, given the
Rangen ruling, and growers
within the designated area
of common groundwater but
outside of the trim line could
be affected by a future call.
Otter said he won’t let such
details derail the agreement.
“Reaching a consensus
agreement that takes into ac-
count all of the competing needs
and the limited resource is ab-
solutely necessary for continu-
ing development and economic
growth in the watershed,” said
Mark Warbis, a spokesman for
Otter. “We’ve long since passed
the time when we can consider
surface and groundwater as a
separate resource.”
Settlement negotiations faltered in 2012 and 2013
SPUDS from Page 1
UPGA was initially optimis-
tic that its supply management
strategy was protected by the
Capper-Volstead Act, which pro-
vides farmers with some exemp-
tions from antitrust law.
However, Chief U.S. Dis-
trict Judge Lynn Winmill dealt
the cooperative’s legal defense a
big blow in 2011 by ruling that
“acreage reductions, production
restrictions, or collusive crop
planning” weren’t shielded under
Capper-Volstead.
Since then, the cooperative
and potato companies have
turned over more than 3.6 million
pages of documents that were re-
viewed by the plaintiffs and their
economic experts, according to
court documents filed with the
settlement.
Settlement negotiations fal-
tered in 2012 and 2013, but the
discussions were renewed after
the plaintiffs asked for their case
to be certified as a class action
last year, which would allow
other affected parties to join the
lawsuit.
Wright said the settlement,
which should be finalized by late
this year, is not an admission of
guilt by the defendants.
“Despite negotiating a set-
tlement, potato growers stead-
fastly maintain they did not
participate in any illegal activity
or wrong-doing,” Wright said,
adding the settlement “clarifies
for growers nationwide protected
activities under the Capper-Vol-
stead Act and ensures a path for-
ward for UPGA and its constitu-
ent members.”
Wright said the agreement
doesn’t limit other UPGA func-
tions such as data gathering,
disseminating information and
making recommendations.
The talks nearly fell apart
again earlier in 2015 but ultimate-
ly proved successful, with the
parties agreeing to postpone the
litigation and eventually agreeing
on the $25 million payment and
injunction against pre-planting
supply management.
The potato cooperative’s
willingness to settle shows that
it likely recognized the sup-
ply management strategy isn’t
legally defensible, said Peter
Carstensen, a law professor spe-
cializing in agricultural antitrust
at the University of Wisconsin.
“Private action to regulate
output is inherently suspect,” he
said.
The production of other
crops is legally managed through
marketing orders overseen by
USDA, but those are a “different
animal” since a federal agency
has the final say on supply re-
strictions, Carstensen said.
“You have to have both autho-
rization and oversight,” he said.
Rather than trying to directly
restrict supplies, the agricultural
industry would benefit from im-
proved transparency about mar-
ket conditions, Carstensen said.
If growers knew more about
the anticipated demands of pro-
cessors and retailers, they could
make self-interested decisions
without collectively attempting
to influence the market, he said.
“That’s the kind of information
that is needed.”
University of Idaho Exten-
sion economist Paul Patterson,
who has long studied the cost of
producing potatoes in Idaho, be-
lieves acreage reductions noted
by the plaintiffs were bound to
occur regardless of UPGA’s in-
fluence, following a string of bad
years for potato prices.
“They’re being blamed ap-
parently for the entire price
change, and I think that is not
logical,” Patterson said. “The
whole allegation of price fixing
doesn’t seem to hold water under
close examination because why
would you set your price below
your cost of production? It was
below the cost of production in
some of the years they’re alleg-
ing price fixing took place.”
Wright declined to discuss
UPGA’s plans to pay the settle-
ment and costs associated with
litigation, but said the funding
will ultimately come from potato
growers and the potato industry.
Washington farmers may end up hiring about 15,000 guestworkers this season
he still had more than 100 H-2A
workers stranded at the border
costing him $30,000 in food
and housing to keep them
waiting for visas and costing
his customers approximately
$1 million in fruit not picked
and rotting.
Scaroni expects to hire and
manage more than 3,500 H-2A
workers this year for farmers
in the El Centro area.
The State Department said
that urgent humanitarian cas-
es and temporary agricultural
workers are being prioritized
for approval.
Basic questions remain
concerning whether the gov-
ernment is capable of adminis-
tering a legal worker program
that can meet the strict time-
lines set by Mother Nature,
Fazio said.
“The State Department is
not the culprit,” he said. “The
culprit is a system which re-
quires seamless coordination
by six government agencies.”
WAFLA, with the help of
Tom Roach, a Pasco immigra-
tion attorney, petitioned for visa
waivers. The State Department
supported the petition but the
Department of Homeland Se-
curity’s Customs and Border
Protection balked, asking for an
additional $591 per worker on
top of fees already paid, Fazio
said. The law provides for
waiver of fees in emergencies,
he said.
Eventually, the State De-
partment issued visas for about
90 percent of workers WAFLA
had waiting at the border from
southern Mexico.
Sens.
Patty
Murray,
D-Wash., and Dianne Fein-
stein, D-Calif., and Rep. Dan
Newhouse, R-Wash., all helped
to resolve the situation, Fazio
said.
Washington farmers may
end up hiring about 15,000
H-2A visa foreign guestwork-
ers this season to get through a
labor shortage, but it is difficult
to navigate six separate govern-
ment agencies, Fazio said.