ESA Reductions in Reclamation Water Contract Deliveries: A Fifth Amendment Taking of Property?
Grant, Douglas L., Environmental Law
Two United States Court of Federal Claims cases have given different answers to the question posed in the title of this article. One case found a per se physical taking of water users' property; the other ruled water users lacked property rights protected by the Fifth Amendment. Commentators have widely criticized the Finding of a per se physical taking.
This Article undertakes a more searching analysis of the takings question than appears in the two eases and the commentary. By untangling federalism complexities in reclamation law and focusing on longstanding state law regarding water distribution organizations, the article shows that water users supplied under Bureau of Reclamation (Bureau) contracts often will have Fifth Amendment property rights. The Article then shows why Bureau water delivery reductions made to comply with the ESA come within a gap in Supreme Court takings jurisprudence and suggests there is at least some chance the Court would treat delivery reductions as per se physical takings. Finally, the Article explains why it is unclear in many states whether nuisance law or the public trust doctrine constitute preexisting title limitations that would avoid any takings problem, and it suggests a litigation strategy for states concerned about the evolution of their nuisance or public trust law in this regard
I. INTRODUCTION II. BUREAU WATER CONTRACTS AND PROPERTY RIGHTS A. Pre-Reclamation Act Western Water Law 1. The Appurtenance Rule 2. The Relationship Between a Water Supply Entity and the Irrigators Supplied. B. Reclamation Act Section 8 1 Text and Legislative History 2. Section 8 in the Supreme Court a. Vested Rights Acquired Under State Law b. State Water Law and Federal Preemption c. Reallocation of Bureau-Controlled Water d. Types of Bureau Water Contracts i. Water Service Contracts ii. Municipal Water Contracts C. The Klamath Case 1. Judge Allegra's Opinion 2. What Judge Allegra Overlooked a. The Factual and Legal Context of the 1905 Oregon Statute b. Other Oregon Water Law D. Summary III. TAKINGS LAW AND WATER RIGHTS A. The Structure of Takings Law B. Where Bureau Water Delivery Reductions Fit in the Takings Structure 1. The Tulare Opinion and Its Critics 2. Usufructuary Rights 3. Temporary Versus Permanent Physical invasion a. The Loretto Takings Categories b. Loretto in the Lower Federal Courts c. A Closer Look at Loretto 4. Lucas and Other Supreme Court Land Use Cases IV. PREEXISTING TITLE LIMITATIONS A. Shortage Clauses in Bureau Contracts B. State Nuisance and Property Law 1. Existing Nuisance Case Law 2. Existing Property Case Law (The Public Trust Doctrine) 3. Evolution of Nuisance and Public Trust Law V. CONCLUSION
The Bureau of Reclamation in the United States Department of the Interior (Bureau) operates 476 dams and 348 reservoirs in the seventeen western mainland states. (1) A primary mission of the Bureau is to deliver water from these facilities by contract to municipalities (2) and irrigation districts or similar organizations. (3) The contract water deliveries make up all or part of the supply for thirty-one million urban residents (4) and for farmers irrigating ten million acres. (5)
Many of the Bureau's dams and reservoirs are on streams that are the habitat of fish species listed as threatened or endangered under the Endangered Species Act (ESA). (6) ESA section 7 obligates every federal agency to insure that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species." (7) To comply with this mandate, the Bureau may have to refrain from storing water in a reservoir for later delivery to contract users and instead let the water flow downstream to provide habitat for protected fish species. …