March 28, 2103
Tim Dewar, email@example.com
Although a recent U.S. Court of Appeals decision shut the door on Casitas Municipal Water District’s (CMWD) efforts to get compensated for water it must release to operate a federally mandated fish ladder, it didn’t slam the door and lock it.
The CMWD board of directors voted Tuesday 4-0 — Director Pete Kaiser was not at the meeting — to not pursue the matter further, according to CMWD General Manager Steve Wickstrum. He added that the court decision does, however, leave open the possibility of further action if water levels begin to fall.
On Jan. 26, 2005, CMWD filed suit in the U.S. Court of Federal Claims asserting that the federal government had violated the Fifth Amendment by taking its property without compensation. The suit stems from the 1997 listing of the West Coast steelhead trout as an endangered species and the subsequent need to build a fish ladder at the Robles Diversion Dam.
The completion of the fish ladder, in December 2004, meant the District had to begin diverting approximately 3,500 acre-feet of water each year in order for the ladder to operate properly.
Filed the following month, the lawsuit sought reimbursement of the $9.5 million it spent building the fish ladder and for the water it loses each year.
“The decision was essentially that we are not going to take any additional action at this point,” Wickstrum said of Tuesday’s vote.
Since 2005 when the District began considering legal remedies, it has paid legal fees to the law firm of Marzulla and Marzulla and other expenses totaling $890,939.31, Wickstrum said. The latest appeal cost the District $6,000, he added. “The way the contract was structured kept our costs down and put most of the risk on Marzulla,” Wiskstrum stated.
What did the District get for its trouble? According to Wickstrum, they have an answer to the question of whether the “taking” of water to operate the fish ladder is wrong. “The answer was yes,” Wickstrum explained. “The one part that wasn’t answered was whether we were damaged and what that damage was.”
This question is the one that leaves the door open to further action down the road.
In the recent appeal, the court reaffirmed that the taking claim could only be applied if Casitas could show that the operation of the fish ladder resulted in a reduction of “beneficial use” of the water to which it was entitled. In this case, the court asserted that this meant water that was actually delivered to customers rather than water stored in the lake for possible future use.
The government argued that the District’s contract with the Bureau of Reclamation provided for the “beneficial use” of up to 28,500 acre-feet per year and Casitas had used, on average, only 17,543 acre-feet per year over the past 40 years. This leaves the District 7,450 acre-feet to deliver before the diverted amount would be a factor.
The court left open the option for the District to refile the case if the amount available to customers were reduced in future years because of the need to operate the fish ladder.
“We looked at the storage capacity of the lake and decided that this was a question we wanted an answer to now rather than wait for everybody to not have water in their taps,” Wickstrum added. “They (the court) would rather have someone injured first and be able to see the damage before they make a ruling. At that point, they are looking at recuperation of damages, but the judge recognizes that we, as a district, are trying to manage this and not run out of water.”
So while there are no further plans to move on the issue, Wickstrum acknowledged that this could change if the water loss became more of a problem. “It’s a chapter and we will see if any more volumes get written to that in the future.”