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U.S. to Pay Farmers In Calif. Water Flap

$16.7 Million Pact May Alter Protection of Endangered Species

By Juliet Eilperin
Washington Post Staff Writer
Wednesday, December 22, 2004; Page A03

The Bush administration agreed yesterday to pay California farmers $16.7 million to compensate for water the government held back to preserve two imperiled fish species in the early 1990s, a pact that some legal experts said will make it harder for the federal government to protect endangered species.

Property rights advocates hailed the settlement between the Justice Department and several thousand farmers from five San Joaquin Valley water districts, who lost as much as a third of their water deliveries in 1992 and 1994, when a long drought threatened the survival of the area's chinook salmon and delta smelt populations. The agreement affirmed a federal judge's 2001 decision that federal authorities' decisions to conserve water for the fish violated farmers' property rights.

The farmers' lawyer, Roger Marzulla, who served in the Justice Department's environmental division under President Ronald Reagan, said the government will no longer be able to deny citizens use of their land or water without compensation, even if a species is in trouble.

"The principle has been established that if the federal government does take water rights . . . then the federal government must pay for that water," Marzulla said in a telephone interview. "It is now on the books."

Both California authorities and lawyers at the National Oceanic and Atmospheric Administration, which oversees efforts to protect the fish, had urged the Justice Department to appeal the 2001 verdict on the grounds that a settlement would spark new legal challenges to state and federal water policies. Judge John Paul Wiese ruled the government owed the farmers $14 million, a figure that ballooned after the court added in attorneys' fees and accrued interest.

Tom Dresslar, spokesman for California Attorney General Bill Lockyer, said that "the claims court decision will present problems for the state, and hinder its ability to manage water to protect the environment and meet other public interests."

At the Justice Department, spokesman Blain Rethmeier did not explain why the administration decided to forgo an appeal, aside from saying, "This settlement is the result of careful and deliberate negotiations between the parties."

John D. Echeverria, who directs Georgetown University's Environmental Law and Policy Institute, said an appeals court could rule differently on the matter at some point, but "in the meantime, the United States government has given a great big stocking stuffer to California's cotton industry."

It was unclear how much of a legal precedent the settlement might establish. Sue Ellen Wooldridge, an Interior Department lawyer, said many federal and state water contracts include language that protects the government from liability when it acts to protect species. The three-page agreement between the administration and the San Joaquin Valley farmers also says the settlement should not "be interpreted to constitute a precedent or argument in this or any other case."

But Marzulla said government officials had already begun to accommodate private property interests because of his lawsuit, and experts across the political spectrum said it could affect government decisions involving water used for public recreation and navigation.

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