Nary a Drop to Divert

Rash of water-rights lawsuits in California worries conservationists

A series of water-rights lawsuits in California -- one of which is headed for the U.S. Supreme Court tomorrow -- has conservation activists worried about what Sen. Dianne Feinstein (D-Calif.) is calling a backdoor assault on the Endangered Species Act. At issue are contracts between farmers and the federal government for irrigation water from public works -- water that is diverted to streams and rivers in times of drought, to help preserve endangered fish species, per the ESA. Traditionally, the water has been viewed as a public resource, to be allocated as the public deems appropriate. But in a highly controversial 2001 case, a judge in the U.S. Court of Federal Claims sided with farmers from California's Tulare and Kern counties, ruling that such diversions constitute "physical taking[s]" as described in the Fifth Amendment to the U.S. Constitution, which means the feds must compensate the farmers. Conservationists worry that the expense of such compensation will quickly prove prohibitive, and the feds will simply stop diverting water to save fish.