Court decision may save farm water

By Reggie Ellis

Agriculture scored its fist victory in the war against environmentalist invasions of water rights after a federal claims court judge recently ruled that the federal government may have to pay irrigators for water supplies taken to save endangered fish.

The ruling is actually a second opinion on Judge John Paul Wiese's 2001 ruling that stated, "The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so." The second opinion stated that the federal government owes irrigators $14 million, which could grow to more than $25 million with the addition of interest and legal fees.

The decision is considered a major beachhead for irrigators with state water contracts, such as Southern California water districts and the Tulare Lake Basin Water Storage Project in Kern County, which originally filed the lawsuit with several other water agencies.

However, the decision may only be an empty threat for irrigators with federal contracts, such as the Friant Water Users Authority (FWUA), including the Exeter and Lindsay-Strathmore irrigation districts.

FWUA is one unit of the Central Valley Project, an irrigation water distribution system administered by the U.S. Bureau of Reclamation. Friant Dam on the San Joaquin River creates the Millerton Reservoir northeast of Fresno. The water is distributed to more than 1 million acres on 15,000 small farms along 150 miles of eastern San Joaquin Valley through the Friant-Kern Canal.

A spokesman for the FWUA said that the decision does little to aid the Central Valley water association in its current environmental battle. The National Resources Defense Council (NRDC) filed suit against FWUA and the U.S. Bureau of Reclamation on Dec. 20, 1988 to force FWUA to release water in order to restore Chinook salmon spawning ground of the San Joaquin River. FWUA and the Bureau of Reclamation argued that the Friant-Kern Canal should be exempt from the Endangered Species Act (ESA) because of historic water rights. NRDC argues that no water agencies are exempt from the ESA.

The legal battle has gone back and forth and has been appealed to the U.S. District Court in Sacramento. Since the Friant-Kern Canal is part of the federally administered Central Valley Water Project, Wiese's decision may be irrelevant.

Former FWUA Director and civil engineer Richard Moss said water administered by the federal government is subject to many stipulations and mandates, including the ESA. Moss said the decision may not affect federal water irrigators now, but, under the right circumstances, may eventually find its way into court for federal contracts.

"The decision does establish water as a property right," he said. "That may make ESA enforcement check each situation much more carefully. It will also make environmental groups be more responsible with their actions."

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