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Western water rights come under new attack 


Government officials renege on promises, use slippery approach to laws


by BRANDON MIDDLETON and DAMIEN SCHIFF Herald and News Guest Commentary November 28, 2010

Brandon Middleton and Damien Schiff are attorneys with Pacific Legal Foundation.  Headquartered in Sacramento, PLF describes itself as a legal watchdog organization that litigates nationwide for limited government, property rights and a balanced approach to environmental regulation.


     “ , , everywhere ...,” begins a famous line by Coleridge.


   Today, in the American West, assaults on water rights can be seen practically everywhere.


   Government regulators and environmental activists lead the attacks, and farmers and ranchers are the immediate targets. But the negative impact threatens to ripple throughout the economy.


   After all, economic development in the West has always depended on respect for water rights. Water is scarce in much of the region, so certainty in water rights is a vital incentive to use this precious commodity productively, for the greatest good.


   More and more, however, government officials are sowing uncertainty by reneging on longstanding promises or taking a slippery approach to laws or contracts that water users have relied on for generations.  


   For example, is the Obama Administration suddenly downgrading how farms, ranches, and urban communities are treated by federal reclamation projects? Water agencies throughout the West are worried, after the Bureau of Reclamation told an irrigation district in Grant County, Wash., that its water fees will no longer purchase any rights in the facilities that those fees help finance.


   Ownership interest


   Historically, local water agencies that contract with federal projects (such as the Central Valley Project in California) have received ownership interest, over time, in the reservoirs, canals, and other infrastructure built on their dime. By backing away from this principle, federal officials send a disturbing message: Water contractors will be relegated to the role of tenants instead of partners in reclamation programs. It’s the feds who will call the shots — unilaterally and arbitrarily — on who gets water, and how much.


   The danger in giving unchecked control to federal bureaucrats can be seen in California’s San Joaquin Valley in recent years. In a controversial strategy to rescue a tiny fish — the Delta smelt — that is on the Endangered Species Act protected list, water for farms and cities was cut dramatically, fallowing hundreds of thousands of acres in one of the nation’s agricultural heartlands.


   These cutbacks, by federal officials, started even before the new threat to water contractors’ property interests. But they show how water flows could be turned on or off, unpredictably, if local agencies are squeezed out of any ownership role in federal reclamation projects.  


   State officials in California are also doing their part to dilute the rights of water users. Twisting the Fish and Game Code in a radical new way, the California Department of Fish and Game has begun to require a cumbersome permit process for people who seek to use their water rights in traditional ways.


   Civil and criminal penalties are threatened for farmers and ranchers if they don’t start asking the state’s leave before using water — even when they are drawing from rivers or streams that have been irrigating their acreage for a century or more in some cases.


   New legal campaign


   Meanwhile, a new legal campaign by environmentalist lawyers could end up sinking some ranches and farms, financially, by curtailing use of groundwater. The aim is to regulate groundwater under an archaic theory called public trust.


   The effect would be to rob water users of their rights — declaring a public trust over their water — without compensation. This is a breathtaking stretch, legally, because the public trust concept has always been associated with coastal waters and beaches, not inland areas and certainly not groundwater. In a practical sense, it amounts to a scorched earth campaign against many agricultural operations.


   Siskiyou County rancher Tom Menne predicts that the public trust crusade could “devastate” his ranch’s profitability, throwing its 25 employees out of work.  


   All three of these threats to water rights — from the Bureau of Reclamation, the State of California, and overzealous environmentalists — are being challenged in court. We’re proud to say that our organization — Pacific Legal Foundation, a watchdog for property rights and limited government — is in the thick of all the litigation to defend water rights.


   The cause should interest everyone concerned about returning our region, and our country, to economic health. The attack on the productive, job-creating use of water calls to mind the second half of Coleridge’s famous line:


   “Water, water everywhere, nor any drop to drink.”


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