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Judge orders agency to pay for farm water



The heavy-handedness of at least one federal environmental agency toward agricultural water users in California has been dealt a serious blow by a court in Washington, D.C.

The judge ruled recently that water diverted from farmers in California in 1992 and 1994 -- some 300,000 acre feet -- to provide protection for Delta smelt must be paid for by the government agency involved to the tune of $26 million.

The water was withheld from the farmers by order of the Endangered Species Act in violation of contracts they hold with state water agencies. Four water distribution agencies in Kern, Kings and Tulare counties were denied the water.

The attorney who represented the local water agencies, which are administered by boards comprised primarily of farmers, is now preparing a case on the same grounds that calls for water users in the Klamath Basin to be similarly compensated in the amount of $100 million.

Even the amount owned the Kern, Kings and Tulare county farmers will "either bankrupt the treasury or bankrupt our environments," according to Michael Wall, an attorney for the National Resources Defense Council.

On the farmers' side of the issue, attorney Roger Marzulla said: "... if the government takes private property it must pay for it. That's exactly what the court held ... "

The judge presides over the U.S. Court of Federal Claims. He said: "The government is certainly free to protect the fish, it must simply pay for the water it takes to do so."

The denial of water to farmers in the southern San Joaquin Valley resulted in some prime agricultural land being fallowed, and a loss to the state's economy.

Most of the farmers involved were able to compensate by concentrating on alternate crops temporarily without severe hardship.

However, in the Klamath Basin, withholding the water for only one season resulted in extreme financial stress for dozens of farm families and the communities in which they normally produce their crops. Some farm families and other businesses went bankrupt.

The Klamath water was diverted to allow salmon and some other fish species to swim toward their spawning grounds, allowing Native Americans along the waterways to catch them in a traditional manner.

The federal government has the right to appeal the decision against the Endangered Species Act, but it has not announced whether it will do so. The attorney for the farmers has said the least the federal forces can do is discuss their intentions with farmers and others affected before taking such drastic arbitrary action as they did in both cases.

California's respected farm publication, "California Farmer," reported the legal action in its April issue, saying the decision defines a new water state for farmers. That's a state of affairs farmers in California can appreciate.

Don Curlee is a freelance writer who specializes in agricultural issues. Write to him at Don Curlee-Public Relations, 457 Armstrong Ave., Clovis, CA 93612.

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