Valley farmers win in court over water loss
By Dale Kasler -- Bee Staff Writer
Published 2:15 a.m. PST Wednesday, January 14,
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
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
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
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
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
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,
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,
An acre-foot is 326,000 gallons of water, a
year's supply for one to two California
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