Within hours of the release of a potentially adverse federal court decision in late December, the California State Water Resources Control Board (SWRCB) extended by two months the open public comment period for consideration of its Bay-Delta Plan.
Elements of its plan include an uncompensated mandate to increase flows on several major California rivers by depriving long-established water-rights holders of access to their water. Now a federal court says the state must pay for water it takes, establishing a precedent that might lead to billions of dollars in unanticipated costs for the state.
U.S. Court of Claims Judge Marilyn Blank Horn’s decision in favor of an irrigation district opens the door for water-rights holders to sue California for compensation when the state takes water for environmental purposes.
The court order dealt with water from the Klamath River that the federal government held back from the suit’s plaintiff, an irrigation district that straddles the California-Oregon border. The feds took the water in 2001 in the name of protecting endangered species, including the Lost River sucker. The suit has slowly wended its way through the courts for 15 years.
Until Wednesday’s decision, the state has not paid compensation to those deprived of their water under various environmental laws and regulations that require transfers of water from rights holders to fish, animals, birds, habitat, recreation, Native American tribes and water-quality uses. Now an influential jurist says the state’s interpretation of its powers as so-called “regulatory takings” is incorrect.
Judge Blank Horn’s decision establishes a precedent that the takings of Klamath River water from California and Oregon farmers in 2001 were physical acts, not regulatory ones, making them subject to the Fifth Amendment’s unreasonable seizure clause and encumbering the government with the responsibility to pay owners for their losses when they deprive them of their property.
Horn noted that government officials used “physical means” to cut off the water to farms, triggering a “categorical duty” that the government compensate the holders of water rights that were infringed.
Since Governor Jerry Brown declared his drought emergency in January 2014, the SWRCB has acted with near impunity to take water by stripping water-rights holders of their water allocations and forcing water transfers without compensation. If Blank Horn’s court decision survives appeal, the state will be responsible for the cost of all waters that they redirected, an unpaid bill potentially totaling many billions of dollars.
Aubrey Bettencourt is the executive director of the California Water Alliance, a statewide water policy non-profit that advocates for the water needs of California families, cities, businesses, farmers and the environment. Follow @AubBettencourt and visit CaliforniaWaterAlliance.org for more information.