April 2005 U.S. Water News Online
WASHINGTON
-- Farmers from Northern California and Oregon tried to convince a federal
judge they should be compensated for water the government diverted from
irrigation in 2001 to protect Klamath River salmon. But a government attorney
argued that the irrigation districts don't have property rights that allow
compensation if they don't get as much water as they're supposed to. "There is
simply no state law-based water right that has attributes of property rights,"
Justice Department attorney Kristine Tardiff told U.S. Court of Federal Claims
Judge Francis M. Allegra. Roger Marzulla, representing the water users,
disagreed, contending legal precedent "has squarely held that the plaintiffs
hold a property right." "There is as of today no water right for fish" under
Oregon law, he added. The argument was a step in determining whether the two
dozen Klamath Basin irrigators and property owners will collect $100 million
they claim they are owed for the 2001 water diversions that sent about
one-third of their allotted water to help the threatened coho salmon. Allegra
said he would rule at a later date on the motions under consideration at the
five-hour hearing, which focused on whether the rights the Klamath irrigators
had to the water were like other property rights, and therefore required
compensation. The Endangered Species Act requires water to be used to protect
species in some circumstances where agriculture also claims it, and
traditionally, no compensation has been given. But property rights supporters
in this case and others are increasingly arguing that such diversions of water
must be regarded as a government "taking" of private property, and compensation
must be paid. Allegra's questions suggested he was undecided. "It is important
... not only to define whether we have property, but what the nature of the
property is," he said. The Klamath basin farmers say the loss of the water in
2001 prevented some growers from producing any significant harvest that year,
and even forced some off their property when they couldn't make enough money to
pay their mortgages. But attorneys for the government and for the Pacific Coast
Federation of Fishermen's Associations, which was allowed to intervene in the
case, contend that fish and wildlife resources have to be protected, too. In
2002, a year after the farmers were denied water, less water was given to fish
and tens of thousands of adult chinook died when they returned to warm low
water conditions in the Klamath River and were hit by gill rot disease.
Requiring payment for water used to protect species could undermine the
Endangered Species Act by making it too expensive to uphold, environmentalists
say. But the position that the government should pay for water it diverts got
encouragement when the Bush administration spent $16.7 million in December to
settle a lawsuit by four California water districts over water sent to help
threatened fish. Environmentalists had hoped the government would appeal a
ruling in favor of the water districts rather than settle. The circumstances of
that case are not identical to the one Allegra is considering, so attorneys for
the government and fishermen hope the outcome will be different. Water
allocations continue to be a contentious issue in the Klamath Basin, where the
Bureau of Reclamation is charged with providing water for endangered suckers in
Upper Klamath Lake, threatened coho salmon in the Klamath River, and more than
1,000 farms in the Klamath Reclamation District straddling the
Oregon-California border south of Klamath Falls. Also, congressional
investigators released a report on the "water bank" the Bureau of Reclamation
operates in the Klamath Basin as a way to hold water in reserve to supplement
river flows. The water bank was instituted after the drought conditions in 2000
and 2001. The report by the Government Accountability Office found that the
Bureau of Reclamation has delivered the required amount of water. But it said
the bureau failed to provide stakeholders with clear information about the
water bank's management and status. In a letter of response the Bureau of
Reclamation said it would seek to improve its operations. This information and
much more that you need to know about the ESA, the Klamath Basin, and private
property rights can be found at The Klamath Bucket Brigade's website -
http://www.klamathbucketbrigade.org/ -- please visit today. |