U.S. Water News Online
WASHINGTON -- Farmers from Northern California and Oregon
tried to convince a federal judge they should be compensated for
water the government diverted from irrigation in 2001 to protect
Klamath River salmon.
But a government attorney argued that the irrigation districts
don't have property rights that allow compensation if they don't get
as much water as they're supposed to.
"There is simply no state law-based water right that has
attributes of property rights," Justice Department attorney Kristine
Tardiff told U.S. Court of Federal Claims Judge Francis M. Allegra.
Roger Marzulla, representing the water users, disagreed,
contending legal precedent "has squarely held that the plaintiffs
hold a property right."
"There is as of today no water right for fish" under Oregon law,
The argument was a step in determining whether the two dozen
Klamath Basin irrigators and property owners will collect $100
million they claim they are owed for the 2001 water diversions that
sent about one-third of their allotted water to help the threatened
Allegra said he would rule at a later date on the motions under
consideration at the five-hour hearing, which focused on whether the
rights the Klamath irrigators had to the water were like other
property rights, and therefore required compensation.
The Endangered Species Act requires water to be used to protect
species in some circumstances where agriculture also claims it, and
traditionally, no compensation has been given. But property rights
supporters in this case and others are increasingly arguing that such
diversions of water must be regarded as a government "taking" of
private property, and compensation must be paid.
Allegra's questions suggested he was undecided. "It is important
... not only to define whether we have property, but what the nature
of the property is," he said.
The Klamath basin farmers say the loss of the water in 2001
prevented some growers from producing any significant harvest that
year, and even forced some off their property when they couldn't make
enough money to pay their mortgages.
But attorneys for the government and for the Pacific Coast
Federation of Fishermen's Associations, which was allowed to
intervene in the case, contend that fish and wildlife resources have
to be protected, too. In 2002, a year after the farmers were denied
water, less water was given to fish and tens of thousands of adult
chinook died when they returned to warm low water conditions in the
Klamath River and were hit by gill rot disease.
Requiring payment for water used to protect species could
undermine the Endangered Species Act by making it too expensive to
uphold, environmentalists say.
But the position that the government should pay for water it
diverts got encouragement when the Bush administration spent $16.7
million in December to settle a lawsuit by four California water
districts over water sent to help threatened fish. Environmentalists
had hoped the government would appeal a ruling in favor of the water
districts rather than settle.
The circumstances of that case are not identical to the one
Allegra is considering, so attorneys for the government and fishermen
hope the outcome will be different.
Water allocations continue to be a contentious issue in the
Klamath Basin, where the Bureau of Reclamation is charged with
providing water for endangered suckers in Upper Klamath Lake,
threatened coho salmon in the Klamath River, and more than 1,000
farms in the Klamath Reclamation District straddling the
Oregon-California border south of Klamath Falls.
Also, congressional investigators released a report on the "water
bank" the Bureau of Reclamation operates in the Klamath Basin as a
way to hold water in reserve to supplement river flows. The water
bank was instituted after the drought conditions in 2000 and 2001.
The report by the Government Accountability Office found that the
Bureau of Reclamation has delivered the required amount of water. But
it said the bureau failed to provide stakeholders with clear
information about the water bank's management and status. In a letter
of response the Bureau of Reclamation said it would seek to improve
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