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CapitalPress.com
Friday, August 27, 2021
149-year-old Washington farm
fights over water for survival
By DON JENKINS
Capital Press
Lori Maricle/WGC
Aki Watanabe, left, from Miller Milling Co. in Minneap-
olis, Minn., and Nobukazu Mae from Rogers Foods in
Vancouver, Canada, in front of the Washington State
University “welcome” hillside on their way to visit the
USDA Agricultural Research Service’s Western Wheat
Quality Lab in Pullman, Wash.
First in-person wheat
trade team tours
PNW’s ‘unusual’ crop
By MATTHEW WEAVER
Capital Press
The first in-person trade
team representing overseas
wheat customers since the
start of the COVID-19 pan-
demic toured the Pacific
Northwest last week.
Two North American
representatives of the Nis-
shin Seifun Group from
Japan visited Idaho, Ore-
gon and Washington. They
are based in Minneapolis,
Minn., and Vancouver, B.C.,
in Canada.
“Due to COVID restric-
tions, it’s still really diffi-
cult for people to get to the
United States from Japan
and vice versa,” said Joe
Bippert, program director of
the Washington Grain Com-
mission. “If you have peo-
ple that are already vacci-
nated living in a country
with easier access to the
United States, it just made
more sense.”
The U.S. wheat indus-
try has been relying on
“virtual” trade teams using
online platforms since
March 2020.
The group represents
one of the four major flour
mills in Japan. Japan is the
third largest customer for
U.S. wheat, annually buy-
ing an average of 2.83 mil-
lion metric tons in the last
five years, according to U.S.
Wheat Associates, the over-
seas marketing arm of the
industry.
The group usually visits
once a year, but the trip was
canceled in 2020 due to the
pandemic.
“This year, it wasn’t orig-
inally planned, but given the
unusual crop, they wanted
to make a point to send a
team over,” Bippert said.
Japan desires a consis-
tent product throughout the
year, and typically requires
a maximum protein content
of 10.5%. Drought and heat
stress this year have resulted
in higher protein levels in
some Pacific Northwest
wheat.
The U.S. industry rec-
ommends Japan change its
specifications to allow grain
elevators and exporters to
blend proteins.
“It’s going to be chal-
lenging as the year pro-
gresses to be able to meet
that (10.5%) specification,”
Bippert said. “As opposed
to supplying them what they
need early on and then not
having enough later, we’re
hoping they’ll change their
specification ... and allow
them some time to com-
municate to their custom-
ers what the change is going
to be so the end-users can
make whatever adjustments
that are needed to make sure
the quality stays consistent.”
Other large markets for
Northwest wheat, such as
the Philippines and South
Korea, are making adjust-
ments to their specifications
to account for the higher
protein, Bippert said.
The group sent ques-
tionnaires about the crop
to each grain elevator, and
requested samples, which
they will blend together
into a sample representa-
tive of PNW wheat, milling
and testing for performance,
Bippert said.
They will take answers
about the harvest and crop
quality back to the Minis-
try of Agriculture, Forestry
and Fisheries, the wheat
purchasing agent for Japan,
and make recommendations
about what to change in pur-
chase specifications.
During the visits, the
team considered each grain
elevator’s COVID-19 proto-
cols. Some required mask-
ing inside, while one wanted
a meeting outdoors, Bippert
said.
“There were some adjust-
ments,” he said. “Noth-
ing that took away from the
quality of the meeting.”
The grain commission
is beginning to hear from
more teams hoping to visit
the region, he said.
As new information
regarding the Delta vari-
ant of COVID-19 becomes
available, travel require-
ments for the U.S. and cus-
tomers overseas will likely
change, he said.
“If companies are able
to adjust and meet those
requirements, I think the
preference will be for an
in-person visit,” he said.
VANCOUVER, Wash. — The Zim-
merman family farm has survived 149
years, but may soon close if it can’t get
the water right it applied for in 2009 from
the Washington Department of Ecology.
The odds look long for Bill Zimmer-
man, whose forefathers bought the prop-
erty in 1872. He pumps from a well to
irrigate about 100 acres, and Ecology
says that is illegal. The department’s
stance comes down to this: Zimmerman
must prove the water he uses won’t lower
a nearby creek by one drop.
If he does, he’ll have to somehow put
that drop back in the creek. A drop for a
drop. To keep farming, Zimmerman has
to navigate this zero-sum game.
“It’s been anything but simple,” he
said. “It’s really been complex.”
For generations, Western Washing-
ton farmers supplemented ample rain-
fall with short irrigation seasons. Water
rights were not as well developed as in
arid Eastern Washington. At the same
time, Washington water law encouraged
family farms.
Times changed, however, and the
Legislature made fish a priority.
State Supreme Court decisions further
favored keeping water in streams. And
the idea that wells and streams are con-
nected — it’s called “hydraulic continu-
ity” — took hold, erasing the distinction
between groundwater rights and surface
water rights.
Zimmerman, 67, said he realized
more than a decade ago he needed to
secure a water right. The farm had con-
verted to water-intensive fruits and veg-
etables after the market for clover seed
shriveled.
“We realized, ‘Gosh, people really
wanted fresh produce, and we could sup-
ply that,” Zimmerman said.
The farm built a roadside store and
capitalized on Clark County’s growing
population. City residents flock to Bi-Zi
Farms to buy fresh produce and to pet
farm animals.
To grow berries, corn, cucumbers
and other crops, Zimmerman applied 12
years ago to pump 300 gallons a minute,
up to 120 acre-feet a year, to irrigate 94
acres.
While waiting for a permit, he irri-
gated and occasionally checked with
Ecology. “I was always told, ‘You’re
almost to the top of the pile. Anyway,
you’ll be fine,’” he said.
Last November, Ecology mailed let-
ters to water-right applicants in the basin,
including Zimmerman. The letter said
to submit a “mitigation plan” or forget
about getting a water right.
Zimmerman checked the only box
that wouldn’t have killed his produce
farm.
The letter told him he must “hire a
qualified consultant to evaluate the proj-
ect.” Submitting a mitigation plan “in
no way guarantees approval of a water
right.”
Ecology’s authority stems from an
“in-stream flow rule” in the Washington
Administrative Code. The rule prohib-
its any new water right that “adversely
impacts in-stream resources.”
Some waterways have in-stream flow
rules and some don’t. Salmon Creek has
one, making it a “closed stream basin.”
Any new water right — whether from
groundwater or surface water — must
offset “100%” of its impact to the creek
and its tributaries. This typically means
relinquishing a water right to get a new
one.
Ecology tried another way once. It
proposed offsetting a city’s new water
right by improving fish habitat. The plan
took 20 years to write and had broad
support.
The state Supreme Court nixed it.
The 6-3 decision in 2015 said Ecol-
ogy couldn’t claim it was in the public’s
interest to permanently take water from
a stream, even if there was a net bene-
fit to fish.
The decision prevents anything other
than a “water-for-water” mitigation plan.
Following through on his response to
Ecology, Zimmerman hired a consultant.
He said he’s spent about $5,000, but has
no plan.
Zimmerman could connect to a public
waterline that runs past the farm. He esti-
mates his water bill would be a cost-pro-
hibitive $100,000 a year, a figure the
water utility doesn’t dispute.
Another option would be to buy
existing water rights. Zimmerman esti-
mates that would cost between $1,000
and $3,000 an acre-foot. The one-time
expense would be doable, he said, but he
has to find available water rights in the
same sub-basin, and so far he hasn’t.
Recently, Zimmerman went pub-
lic with his plight, framing the issue on
social media as Ecology denying water to
grow food.
An online petition has collected thou-
sands of signatures. Comments sympa-
thetic to Zimmerman and hostile to Ecol-
ogy pour in on Facebook.
Zimmerman calls the response “heart-
warming.” He also said he knows Ecol-
ogy is “ticked off.”
Ecology spokesman Jeff Zenk said
the public-relations push has not helped,
nor changed Ecology’s position.
“We have an obligation to identify
how much impact he’s going to have on
the in-stream flow,” Zenk said.
“We aren’t trying to overstep our
authority. We have to go by what the
courts, the Legislature and the (adminis-
trative code) tell us,” he said.
Furthermore, Ecology does not have
anti-agricultural bent, Zenk said.
“Nobody wants to see Mr. Zimmer-
man’s farm close. The public doesn’t.
Ecology doesn’t. Nobody does,” Zenk
said. “The rules are being applied to Mr.
Zimmerman the same as to anybody in
that situation.”
By continuing to irrigate, Zimmer-
man risks fines — $5,000 a day for all
summer.
Zenk said he can’t speculate on
whether Ecology will take enforcement
action, but adds, “it’s obviously against
the law.”
Zimmerman said he’s continued to
irrigate “to finish out the crops we have
and produce food for the community.”
One only has to look at surround-
ing houses to believe builders covet the
farmland. But Zimmerman said he has
no thoughts of selling.
One son, Doug, works on the farm.
The other, Joe, manages a county-owned
educational farm in Vancouver.
“My family wants to continue,” Bill
Zimmerman said. “If we don’t get the
water right, it puts us in a box. As to what
we would do, I don’t know.”
He said he has no regrets about stir-
ring up the public, even as he goes back
and forth with Ecology.
9th Circuit rules against landowners in Clean Water Act dispute
By MATEUSZ PERKOWSKI
Capital Press
A federal appeals court
has ruled against Idaho land-
owners who disputed that
their property contains wet-
lands that can’t be filled
without a Clean Water Act
permit.
The lawsuit came to
national attention nearly a
decade ago, when the U.S.
Supreme Court allowed
Chantell and Michael Sack-
ett to challenge a federal
order that accused them of
unlawfully altering wetlands
to build a house near Priest
Lake.
Though the Sacketts won
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Don Jenkins/Capital Press
Clark County, Wash., farmer Bill Zimmerman says his farm could go under if
it can’t get a water right for his family’s 149-year-old operation.
12682 Route 6 Kensington, PE
C0B 1M0 Canada
S258500-1
that case, the 9th U.S. Cir-
cuit Court of Appeals has
now agreed with the U.S.
Environmental Protection
Agency’s underlying deci-
sion that their property con-
tains wetlands under Clean
Water Act jurisdiction.
“In sum, EPA reasonably
determined that the Sack-
etts’ property contains wet-
lands that share a significant
nexus with Priest Lake, such
that the lot was regulable
under the CWA and the rel-
evant regulations,” the 9th
Circuit said.
The couple believes the
9th Circuit’s opinion is in
error and is reviewing the
ruling with its lawyers to
decide how best to free the
property from federal CWA
authority, said Tony Fran-
cois, senior attorney with the
Pacific Legal Foundation, a
nonprofit law firm that rep-
resented the Sacketts.
The 9th Circuit’s reason-
ing could endanger other
landowners in the West,
including farmers, whose
property comes under the
ruling’s broad definition of a
federally regulated wetland,
Francois said. “It’s certainly
not unique to the Sacketts.”
Under the ruling’s ratio-
nale, the EPA can “reach
across fairly significant dis-
tances of dry ground” to
claim that “any swampy soil
on your property” is adja-
cent to a federal waterway
and thus subject to CWA
regulations, he said.
“The EPA’s own inves-
tigation found there is no
surface flow between the
Sackett’s lot and the lake,”
Francois said. “They’re
completely isolated from the
lake.”
The Clean Water Act is
controversial in agricul-
ture because farmers fear
that if their property is sub-
ject to the statute’s author-
ity, they can be forced to
limit the uses of their land
unless they obtain an expen-
sive and time-consuming
permit.