Federal Circuit Finds No Foul From Fish Flows

The Federal Circuit Court of Appeals has upheld a decision from the Court of Federal Claims finding that appropriative water rights in California are property interests only to the extent the water is put to beneficial use.  See Casitas Municipal Water District v. United States, Court of Appeals Case No. 2012-5033 (Fed. Cir. 2013).  Casitas Municipal Water District claimed that the National Marine Fisheries service had forced it to build a fish ladder and divert flows from the Ventura River for the benefit of the endangered Southern California Steelhead, which resulted in a taking of its water right.  The District has a license from the State Water Resources Control Board allowing it to divert a maximum of 107,800 acre feet per year for storage and authorizing it to use 28,000 acre feet per year for beneficial use.  The court explained that storage itself is not a beneficial use under California law, so there can be no taking unless and until diversions for the endangered fish result in an impact to the District’s maximum allowable water deliveries of 28,500 acre feet per year.