Montana Lieutenant Governor Mike Cooney.

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 WATER LAW

Seeking Settlements and Solutions

A Conversation with John Penn Carter

Reaching mutually agreeable solutions to problems is never easy, and nowhere is this truer than in disputes over water rights. Such disputes often lead to lengthy and costly litigation that ultimately results in less-than-optimal solutions. Successfully negotiating a settlement can be a more difficult but ultimately more beneficial method of resolving complex water issues. John Penn Carter has made a career of negotiating and implementing such settlements. As a water attorney, he has had to convince opposing parties as well as his own clients that negotiated settlements are superior to litigation, to stay the course during difficult negotiations, and to only go to court as a last resort. Mr. Carter recently sat down with Irrigation Leader’s editor-in-chief, Kris Polly, to discuss the cases he has successfully resolved throughout his career, how he was able to achieve settlements in difficult cases, and how parties involved in water disputes can often obtain better outcomes at the negotiation table than in the courts.

 

Kris Polly: Can you please give us a brief history of the various water conflicts you have been involved with in the West?

 

John Carter: I come from a family of farmers, and my paternal great-grandfather helped build the canals in the Imperial Valley at the turn of the 20th century. My grandfather later became a farmer and reportedly grew the first iceberg lettuce crop in the valley. My father eventually took over the farming operations, and I worked there until I went to college and law school. At that same time, the U.S. Department of the Interior decided that the 160-acre limitation under the Reclamation Act should apply to the lands in the Imperial Valley, even though those lands had prior vested rights as a result of acquiring water rights under state law. I wrote an article for the law review about the inapplicability of the acreage limitation, and when I began working for the law firm that represented the Imperial Irrigation District (IID), the U.S. government filed a lawsuit arguing that the limitation should apply. Since I had worked on it during law school, I became involved with that litigation. We won that case in the federal district court before it was overturned on appeal in the 9th Circuit Court. In 1980, the U.S. Supreme Court ultimately decided that the acreage limitation did not apply because the lands in the Imperial Valley had prior vested rights.

Later, some farmers in the Imperial Valley were concerned that IID was allowing too much drainage water to flow into the Salton Sea, and it was affecting their lands around the edge of the sea. The California Department of Water Resources became involved and filed a report that was sent to the state Water Resources Control Board, which in turn filed proceedings stating that IID needed to do a better job of using water more efficiently. In 1984, the board ruled that IID and its farmers were using water inefficiently and unreasonably under California law. In 1988, the Water Resources Control Board told the district that it should conserve 100,000 acre-feet annually and find a third party to help finance the necessary projects. As that was happening, I realized that Imperial Valley needed to consider a new strategy, and I recommended that it be proactive and invite urban Southern California entities to lease conserved water from it. The IID board ultimately agreed and adopted a resolution to that effect. This was a sea change in IID water policy and led to several historic water rights agreements.

 

Kris Polly: What are some of the most important factors in effectively resolving water disputes?

 

John Carter: You have to know the law, know the facts, understand where others are coming from, and be able to sit down with all the parties and find a workable solution while still being prepared to litigate if necessary. It takes time and focus to keep everyone at the table until an agreement is reached, but that is the best way to settle these issues.

 

Kris Polly: Is it often difficult for you to convince your own clients that entering into an agreement or settlement is in their best interests?

 

John Carter: It can be challenging at times because people can dig their heels in. That was the case when I recommended that IID enter into a historic agreement with the Metropolitan Water District (MWD) of Southern California in 1988 and the landmark agreement with the San Diego County Water Authority. The MWD agreement focused on saving water by infrastructure improvements, such as canal lining. The 1995 agreement with San Diego focused on conserving water on the farms by undertaking measures that would allow farmers to continue to grow the same crops using less water.

IID and the farmers said that they did not want to transfer water to San Diego or anyone else, but I said that they already do so anyway as part of their crops. Lettuce, watermelon, and other produce are largely water, so I told them to think of ways they could produce the same crop with less water. This would allow them to essentially produce two crops at once—the fruits, vegetables, and other crops they were growing, and water—the water they no longer needed could be leased to other users.

The farmers eventually agreed, the documents were signed, and both sides are benefiting from the conservation efforts that the farmers undertook. Over the term of the IID/San Diego agreement, Imperial Valley will be receiving billions of dollars for the conserved water, the farmers are able to continue growing and selling their crops, and San Diego will have a reliable supply of water to help meet its needs.

 

Kris Polly: What are some of the techniques you have used in the past to bring parties together?

 

John Carter: Bring everyone into the room, ask them to turn off their cell phones and computers, and just start working on how to reach a resolution. That was how I recently helped resolve a decades-old water rights dispute among five Indian tribes, the Vista Irrigation District, and the city of Escondido. It took a while, but we were able to reach an agreement after a lot of hard work, which was rewarded when Congress, the court, and FERC [Federal Energy Regulatory Commission] approved that settlement in 2017.

 

Kris Polly: Is there one central message you would like to convey to irrigation districts or others involved in water rights disputes?

 

John Carter: Be prepared to litigate, but even more, be genuinely willing to sit down and negotiate an agreement in good faith. That approach will produce better outcomes and more cooperation and good will in the long term from all the parties involved.

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