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Ruling may change Calif. water pricing, delivery

A ruling by the 9th U.S. Circuit Court of Appeals may affect the pricing and timing of water deliveries for certain irrigators in California.
Mateusz Perkowski

Capital Press

Published on April 17, 2014 5:25PM

Some California irrigators may face changes to the pricing and timing of water deliveries due to a recent court ruling.

Water delivery contracts held by some California irrigators must be evaluated for their impact on threatened and endangered species, according to a federal appeals court.

The ruling pertains to the obligations of the U.S. Bureau of Reclamation, which operates massive irrigation projects in California.

The 9th U.S. Circuit Court of Appeals has ruled that the agency must consult with federal scientists about the effect the water contracts have on Delta smelt, a threatened fish.

Language in the contracts does not preclude the agency from such consultation, contrary to a previous court ruling, the 9th Circuit said.

The water contracts do require the Bureau of Reclamation to deliver certain amounts of water to certain irrigators, the ruling said.

However, the 9th Circuit has found that those provisions don’t completely tie the agency’s hands.

“There are various other ways in which the Bureau could have contracted to benefit the Delta smelt, including, for example, revising the contracts’ pricing scheme or changing the timing of water deliveries,” the 9th Circuit ruled.

The previous ruling, which is now vacated, held that the contracts provided the government with no leeway and thus rendered Endangered Species Act consultation purposeless.

Prior to the 9th Circuit ruling, irrigators who held those contracts felt insulated from the water curtailments experienced by many other farmers, said Damien Schiff, an attorney with the Pacific Legal Foundation property rights group.

Water users in California won’t feel an immediate impact from the ruling because the Bureau of Reclamation has yet to engage in any consultation, Schiff said.

Historically, though, such consultations have resulted in irrigation curtailments aimed at preserving water for protected species, he said.

The ruling basically means the Bureau of Reclamation can raise prices for water under the contracts, which would presumably reduce usage, Schiff said.

The agency could also shift the timing of deliveries to winter, when smelt would be less affected by irrigation, he said.

It’s unclear exactly what restrictions, if any, will result from the eventual consultation — however, it’s unlikely to make water more available to irrigators, said Schiff.

“It is possible it will add to the pain,” he said.


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