During the California drought of the early 1990s, the federal government cut back water deliveries to Central Valley irrigation districts to protect two rare fish species, the threatened delta smelt and the endangered chinook salmon. Now, the bill is due.
In a case that legal experts say could hobble aquatic protections under the Endangered Species Act, a federal claims court judge ruled recently that the U.S. government must give the irrigators $14 million for the water they never received.
The payment -- which could grow to more than $25 million with the addition of interest and legal fees -- stems from an earlier decision by the same judge that the water cutback amounted, under the U.S. Constitution, to a property taking. The case has become a major beachhead for the property rights movement, which is pressing similar claims elsewhere.
"There's no free water, just as there's no free lunch. The costs are going to be borne somewhere along the line," said Roger Marzulla, a Washington, D.C., property rights attorney who represents the water districts. "The plaintiffs have a recognized property right under state law. The federal government took it, and the federal government has to pay for it."
Government and environmental lawyers say that, if the decision by federal Claims Court Judge John Paul Wiese stands and other courts embrace it, the Endangered Species Act could become too expensive to enforce.
"It's an enormously important case," said Richard Frank, a chief deputy in the California attorney general's office.
It has the potential, Frank said, "for seriously limiting government scientists and regulators from enforcing the Endangered Species Act and other environmental and health requirements."
In California and the rest of the West, most rivers have more claimants than they have water. So when federal or state water deliveries are slashed to maintain flows for fish in dry periods, somebody usually must do without.
In previous federal cases, when farmers or irrigation districts have challenged such cutbacks, courts generally have found that protections in the Endangered Species Act trumped their contract rights with the federal government, which was therefore not liable for any water loss.
In this case, however, the judge found the federal government liable because its environmental restrictions had forced the state to reduce its water shipments to contractors.
