Water Ruling Could Have Effect in West: New York Times

Home Browse Search

CNN.com - Water ruling could threaten species protection - Feb. 12, 2004 Page 1 of 3 M.Com. Powered by (� IC b[ [ ' Water ruling could threaten species protection Judge ruled conservation efforts violated property rights SAN DIEGO, California (AP) - -An effort to save two rare fish more than a decade ago could come back to haunt environmentalists after a recent court decision awarded millions of dollars in compensation to farmers who lost water in the process. If the December ruling by a federal judge survives expected legal challenges, the government could find itself forced to pay much more for efforts to protect endangered fish, draining resources away from conservation. The eventual result would have implications across the West, where the federal government often clashes with property owners in attempts to save species on the brink of extinction. "There may be implications for how the Endangered Species Act is implemented," said Alf W. Brandt, the Interior Department lawyer who argued the government's case. "There may be implications for how water diversions are made." The case stemmed from the government's efforts to protect endangered winter -run chinook salmon and threatened delta smelt between 1992 and 1994 by withholding billions of gallons of water from farmers in California's Kern and Tulare counties. Court of Federal Claims Senior Judge John Wiese ruled that the government's halting of water constituted a "taking" or intrusion on the farmers' private property rights. The Fifth Amendment to the Constitution prohibits the government from taking private property without fair payment. Wiese's December 31 ruling, which awarded $26 million to a group of California farmers for the water diversion, is a clear victory for champions of property rights, who have sought to rein in what they see as regulatory excesses committed in the name of the environment. "What the court found is that the government is certainly free to protect the fish under the Endangered Species Act, but it must pay for the water that it takes to do so," said Roger J. Marzulla, the attorney representing the water districts that brought the claim. 'Backdoor attack' Environmentalists called the ruling a stealth attack on the Endangered Species Act that could gut efforts to preserve species in the future by making them too costly to enforce. http: / /cnn.usnews.printthis .clickability.com /pticpt? action =cpt& title= CNN.com +- +Water +ruling +c... 2/12/2004