Valley farmers win in court over water loss

By Dale Kasler -- Bee Staff Writer
Published 2:15 a.m. PST Wednesday, January 14, 2004

In a major victory for California farmers, a federal judge has said the U.S. government must compensate a group of San Joaquin Valley growers for diverting some of their water to protect endangered fish.

The ruling could tilt the balance between farmers and environmentalists in their endless battle over California's water supply -- and make federal officials hesitate to use the Endangered Species Act to take water from agriculture.

"It makes the decision (to enforce the Endangered Species Act) harder because there's direct financial consequences up front," said Lester Snow, a Sacramento water consultant and former regional director of the U.S. Bureau of Reclamation. "It's a sea change in the way they manage the Endangered Species Act."

Under the ruling by Judge John Paul Wiese of the U.S. Court of Federal Claims, a group of farmers in the San Joaquin Valley must be paid about $26 million for water they didn't receive during drought-like conditions between 1992 and 1994. The court handles claims against the federal government.

The case arose when federal officials invoked the Endangered Species Act to reduce the amount of water being pumped from the Sacramento-San Joaquin Delta to the vast farming operations of the San Joaquin Valley. The action was taken to protect two species of fish, the chinook salmon and Delta smelt, which were getting sucked into the government's giant water pumps and killed in ever-increasing numbers.

The action took millions of gallons of water from a group of farmers in the Tulare Lake basin area at the south end of the valley. As customers of the State Water Project, they're charged an annual fee to pay off the cost of building the project, regardless of how much water they get.

Now a judge has ruled they must be compensated by the federal government. Even though the farmers paid the state for that water, "it's the federal government that got the water, that got the use of the water," said Roger Marzulla, a Washington, D.C., lawyer who represented the farmers.

Farming interests said their lawsuit, filed in 1998, didn't represent an assault on the Endangered Species Act.

"The government had every right to take the water under the ESA, but they had to pay for it," said Brent Graham, general manager of the Tulare Lake Basin Water Storage District. The district buys water from the State Water Project on behalf of 13 customers, led by mega-farmer J.G. Boswell Co.

But environmentalist Barry Nelson of the Natural Resources Defense Council said the ruling could "force the public to choose between bankrupting the (government) and bankrupting the environmental protection laws."

And Tom Graff, a water lawyer with the advocacy group Environmental Defense, questioned whether the Bush administration, known for its strong advocacy of private property rights, fought the case very hard.

"One isn't sure the federal government is making all that aggressive an effort to achieve the environmental objectives," Graff said.

He also noted that the farmers' lead attorney, Marzulla, has strong ties to Interior Secretary Gale Norton. They worked together at the Colorado-based Mountain States Legal Foundation.

Fred Disheroon, a Justice Department lawyer who worked on the case, said, "We fought it very hard and we believe we made a very compelling case." He said it was unknown if the government will appeal the ruling.

A spokesman for Norton referred questions to the U.S. Fish and Wildlife Service, an agency of the Department of Interior that invoked the species act to put the brakes on water pumping. The service said it had no comment.

The judge first ruled in May 2001 that the farmers were to be compensated for diverted water. His new decision, which was filed Dec. 31 but didn't hit the media until this week, set the compensation at $13.9 million. Farming interests said the total ruling is valued at $26 million, including interest.

That's far short of the $65.7 million the farmers were seeking. But Graham said future cases could be even costlier to the federal government.

He said the judge declared that the farmers should receive about $66 an acre-foot, an amount tied to a state-run water market that was in operation in the early 1990s. But under the fledgling free market for water in California, water could be worth two or three times as much, he said.

An acre-foot is 326,000 gallons of water, a year's supply for one to two California households.

 

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