Fair water use for all

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Can government turn off the tap for farmers and other water users to provide more water for endangered fish? Only if it pays the people it leaves high and dry.

This was the message of a major court decision last month involving water usage in California's heartland.

The ruling was a victory for water users in the San Joaquin Valley whose supplies dried up during the last drought because federal environmental policy didn't balance the needs of fish with the needs of people.

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The landmark decision in Tulare Lake Basin Water Storage District v. US should encourage regulators to be thoughtful in crafting environmental policy - and more likely to remember that humans, as well as wildlife and fish, have interests that deserve respect.

Ruling on a challenge by local officials to federal regulatory actions, the US Court of Federal Claims reaffirmed two principles that are important to Americans beyond the boundaries of the Central Valley: (1) government can't take your property without compensation; and (2) contractual water rights are a form of property.

The case dealt with a dispute from the early 1990s, when the US Fish and Wildlife Service decided that the winter-run Chinook salmon and the Delta smelt needed water more than the families who lived and grew food in communities in and near Kern County.

Even though the water-users help pay the project's operating costs, federal bureaucrats ignored their interests. Stealing property in this way won't do, ruled Judge John Paul Wiese of the Court of Federal Claims last month. "The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so," he wrote. That's the mandate of the Fifth Amendment to the US Constitution, which says, " ... nor shall private property be taken for public use without just compensation."

Security and predictability in water rights are crucial for a healthy society. Efficient allocation of water - and ultimately, a fair resolution to water needs and water shortages - is possible only if water interests are well defined and can be relied upon. If government regulators are permitted to subvert the water rights of rural property owners, then orderly use for everyone is placed at risk, and the property rights of all Americans are that much less secure.

David E. Haddock is an attorney with Pacific Legal Foundation, which litigates for property rights and a balanced approach to protecting the environment. He submitted a friend-of-the-court brief in the Tulare Lake Basin case.

(c) Copyright 2001. The Christian Science Monitor

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