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A Takings of Water


Can't We Find A Better Way to End Water Conflicts?
| posted 02.16.04 |
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This is a story of water, salmon, farmers and the US Constitution.

It's one of those big stories that doesn't get much attention ... that slips under the radar. After all the ruling came on December 31st when many reporters were watching Dick Clark count backwards on TV.

Of course, it could be nothing. A court decision that gets overturned on later appeal, or a ruling that stands but doesn't stand as a precedent for similar, more far-ranging cases.

On the other hand, it could be big.

To understand what's going on here, you need to know a little civics. The Fifth Amendment to the Constitution bans the government from taking the private property of its citizens without just compensation. Seems the British had a habit of taking whatever the army needed from the Colonists and our fore-fathers were determined that the US government wouldn't follow suit.

It's a good rule -- but 200 years later it is still be interpreted.

In recent years property rights advocates have argued that regulation can essentially constitute a government "takings" of a person's property. If land use laws or environmental regulation keeps you from using your land -- for example -- hasn't the government "taken" your property without compensation? Others take it even further -- arguing that whenever regulation reduces the assessed value of property, why, that's like taking money out of your pocket.

Takings initiatives have been on the ballot in both Washington and Oregon -- both seeking to expand the definition of takings to require compensation any time property values are reduced by regulation. Washington voters rejected the measure while Oregon voters approved it -- only to have it later deemed unconstitutional.

Good thing too -- the nature of such an extreme definition of property takings would make land use regulation essentially unenforceable. No government could afford to compensate every property owner for every fluctuation in land value.

However, in some cases the courts have ruled with the property advocates -- but usually it is in cases where government regulation has prohibited all reasonable use of property.

Of course there are other cases that push property rights issues in other directions. One such is the case down in California in which farmers asserted that they had a constitutional right to water from a federal project to irrigate their crops. When the government withheld that water to save some fish. Well, that was as good as taking money from their pockets, the farmer's argued. So far, the courts have seen things their way.

Plenty of big questions being raised here: Who owns the water? Can water from a federal project really be private property -- and thus protected as a property right?

If the farmers own the water -- or at least have a Constitutional property right to it -- there could be some very big implications for natural resources in Salmon Nation.

Salmon, along with a number of other critters, need water. Of course, there are competing demands for that water -- from growing cities to growing crops. Water is one of the fundamental flashpoints of environmental conflict in the West. If the case stands and sets a precedent, it could alter how the government makes water diversion decisions and could recast the economic calculus of saving salmon and other species.

“There may be implications for how the Endangered Species Act is implemented,” Alf  Brandt, the Interior Department lawyer who argued the government’s case told AP. “There may be implications for how water diversions are made.”

It all started a decade ago when the government tried to protect winter-run Chinook salmon and delta smelt by withholding billions of gallons of water from California farmers. About 250 farmers in two water districts sued, saying the water shut-off amounted to a taking of their property.

It's easy to see where the farmers are coming from. The government spent the first part of the last century building water projects in the West to attract farmers and foster an agriculture industry. Agriculture in much of the West is built on a government commitment that irrigation water will be available each year to make the crops grow. So there's little arguing that the farmers are harmed when the water is taken away. The larger question is whether government owned the water, or whether the farmers had a Constitutional property right to it. Do commitments and history and economic dependence add up to a "right?"

The case has wound its way through the courts for the better part of a decade -- being closely watched by property rights advocates and environmentalists. Then on December 31st, Court of Federal Claims Senior Judge John Wiese ruled that the water shut off constituted a “taking” of the farmer's private property rights. The judge said the farmers and water districts were owed roughly $26 million by the federal government.

This case is significant because it's the first time a federal judge has ruled that water is protected by private property rights. Even water from a government irrigation project is subject to compensation when diverted to protect or restore endangered species. The case doesn't say the government lacks the right to save water for salmon and other endangered species, but it requires federal resource managers to compensate water users when it does so.

"When the federal government decides to take water from them for environmental purposes, there's nothing wrong with that. But they better be prepared to pay for it," Robin Rivett told the Contra Costa Times. Rivett is a lawyer for the Sacramento-based Pacific Legal Foundation, a nonprofit law firm that specializes in private property rights. "This case is not going to be the only case that focuses on these kinds of issues."

That of course, could make water diversions for salmon restoration much more expensive.

In addition to the suit by Klamath Basin farmers, the US Forest Service is being sued for closing irrigation ditches in the Methow Valley of Washington, the Bureau of Reclamation is trying to take water away from farmers and cities to help and endangered fish native to the Rio Grande. In California, water diversions are common and this case could lead to "billions of dollars" of claims against the state, according to John Echeverria, executive director of the Environmental Law and Policy Institute at the Georgetown University Law Center.

At the same time, buying and leasing water back from farmers for endangered salmon has become more accepted practice in recent years. Rather than lawsuits -- which take years to make their way through the courts and appeals, a more productive approach is for conservation groups to work together with farmers to ensure there is enough water for salmon. (I'd rather see the money go to the farmers than the lawyers anyway.) Indeed, long-term water leases could allow for rural redevelopment and help struggling farmers switch to crops, cultivation methods or livestock that use less water. That could help avoid future conflicts over water, while helping both farmers and fish.

It's unclear how much of a precedent this case will set. It has already spurred a similiar suit in the Klamath Basin, but there is a wide diversity in the water contracts that farmers sign with federal government. In this particular case, for example, the farmers had to pay the federal government for the water -- even when the water was not delivered due to environmental restrictions. Those payments may have been enough of a toehold to give the farmers a "takings" claim, while other farmers and other water districts have very different arrangements that may not make for such a strong "takings" argument.

Regardless, the success of the case -- and the multi-million dollar judgment -- is likely to attract an increasing number of takings claims. Don't be surprised if the federal government alters its approach to these issues to avoid "takings" lawsuits.

"These takings cases are really a backdoor attack on environmental protection laws," Barry Nelson, a water policy analyst for the Natural Resources Defense Council. said. "They're designed to force the public to choose between bankrupting state and federal budgets and bankrupting environmental protection laws."

"It´s important to start finding solutions that help both farmers and fish and support a more diverse economy,” George Grant, owner of Falcon Butte Farms told the Idaho Statesman. "In our view, programs like this one can be very good for the redevelopment of rural Idaho communities.”

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