CA: Farmers win $26 million landmark water suit
Bakersfield Californian | 1/13/04 | Vic Pollard

Posted on 01/13/2004 11:20:05 AM PST by NormsRevenge

For more than a decade, Kern County farmers and water officials have been complaining bitterly about irrigation water they lost when federal agencies began diverting it to protect endangered fish.

Now, a court has ruled that federal agencies must pay for water they took for environmental protection in the early 1990s, an estimated $26 million.

In a case that could leave the government liable in other programs around the country, a federal claims court judge in Washington, D.C., has given agricultural and urban water agencies a major victory.

The ruling is a blow to environmentalists and federal environmental officials who argued that taxpayers should not have to pay water users for environmental damage caused by their water diversions.

Officials of the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, the targets of the legal action, could not be reached Monday for comment on the case or on whether they will appeal the decision.

The issue arose when the federal agencies took steps that forced the State Water Project and the federal Central Valley Project to sharply reduce the amount of water they pumped out of the Sacramento-San Joaquin Delta in 1992, 1993 and 1994.

Alarmed at the rising number of tiny Chinook salmon and delta smelt that were being sucked into the pumps and killed, the agencies ordered the pumping slowed under the Endangered Species Act.

In a lawsuit filed by the Kern County Water Agency and other users, claims court Judge John Wiese ruled in 2001 that the government was required to compensate the farmers for the water they lost.

In a final decision issued Dec. 31, he said they lost more than 300,000 acre-feet of water that was worth nearly $14 million at the time.

With interest, that has swollen to $25 million to $26 million today, said John Stovall, the Kern water agency's chief attorney.

"The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so," Judge Wiese wrote.

If the ruling is not overturned on appeal, the money will eventually be divided among hundreds of farmers in Kern, Tulare and Kings counties who purchase water from the state project's California Aqueduct. A water district that serves the urban Bakersfield area also lost water in the case and should also share in the award, officials said.

The claims were filed only for the three-year period in the early 1990s because a subsequent series of heavy rainfall years required fewer pumping restrictions. And by the time restrictions were reimposed, federal agencies had begun buying water, much of it from Kern County, to replace the lost irrigation water.

However, the attorney who represented the valley water agencies, Roger Marzulla of Washington D.C., said the ruling has implications in other areas. He pointed to the Klamath River basin, where the federal government has imposed severe restrictions on water supplies to farmers in order to protect fish.

Valley water officials were elated with the ruling.

"It's a victory for farmers and urban water users," said Gary Bucher, water supply manager for the Kern County Water Agency. "Anyone who uses water from the Delta -- in California that's most of us -- should welcome this decision."

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