Calif. Water Districts Awarded $26M for Water Used in Federal Program
Source: 
Business Wire

Several California water district officials today praised a federal court decision awarding them approximately $26 million for water taken by the United States under the federal Endangered Species Act.

Judge John Wiese of the U.S. Court of Federal Claims has determined that a number of water districts, and their water users, in the San Joaquin Valley of California must be compensated for water taken by the United States under the federal Endangered Species Act (ESA).

The December 31, 2003, decision concludes that the fair market value of the water taken was approximately $14 million at the time of the take. It is expected that the final judgment in the case, with interest and litigation expenses, will be approximately $26 million.

The case was brought by the districts and water users involved to recover compensation under the Fifth Amendment to the United States Constitution for a taking of the water for federal purposes by the federal government. The water was taken between 1992 to 1994 for the benefit of species listed under the federal Endangered Species Act.

The decision comes after an earlier ruling in the case that the federal government was liable under the Fifth Amendment for the taking of the State Water Project (SWP) water, and a lengthy trial to assess the actual amount of water taken and its value. In its earlier ruling concerning the taking of water for ESA purposes, the court was direct and to the point: "The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so."

The recent decision, issued after thorough consideration of two weeks of testimony and evidence, finds that the federal government took more than 300,000 acre-feet of SWP water (an acre-foot covers a football field with water to a depth of 1 foot).

"It's a victory for both farmers and urban water users," says Gary Bucher of plaintiff Kern County Water Agency. "Anyone who uses water from the Delta – in California that's most of us – should welcome this decision."
Veteran claims court counsel Roger Marzulla hailed the ruling as "a reaffirmation that the federal government cannot take property without just compensation to its owners."

The exact amount of the judgment will depend upon calculation of interest and a determination of recoverable litigation expenses. The landmark ruling on liability of the federal government for water taken for the benefit of the ESA does not depend on the precise amount of the judgment.

This decision confirms the 5th Amendment principle that when the government takes property in the pursuit of its goals, it is bound to justly compensate the owners of that property.

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