The Endangered Species Act as a water management tool – case for the defense

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Here and elsewhere, I’ve been arguing lately that the Endangered Species Act has become the de-facto water management tool of choice (necessity?) in the western United States, but that it has shortcomings as both an environmental policy instrument and a water policy instrument. My thinking on this has been formed in large part by the two case studies I’m following right now, the Rio Grande silvery minnow and the Sacramento-San Joaquin Delta and its much-loved, much-maligned Delta smelt. In both cases, the ESA has become the focus of political and policy discussions, with results that I argue don’t make for very good water policy or environmental policy.

silvery minnow

silvery minnow and humans, courtesy USFWS

I’m on the hunt for counter-examples, and ran across a good one in Cynthia Barnett’s Blue Revolution. In her closing chapter, she talks about the Sierra Club v. Babbit ESA litigation surrounding over-pumping of the Edwards aquifer in and around San Antonio, Texas. Texas operated under what Barnett describes as the “Law of the Biggest Pump,” wherein you could pump the hell out of the aquifer beneath your house, and if that meant your neighbors’ wells went dry, tough shit. Here’s Barnett, discussing and then quoting Judge Lucius D. Bunton III in his decision in the case:

Judge Lucius D. Bunton III told the Texas legislature it must come up with a way to regulate pumping in the Edwards. While he was ruling on the endangered-species case, Bunton set out a much larger vision for a water ethic.

And then she quotes the pertinent passage from Bunton’s decision:

Without a fundamental change in the value the region places on freshwater, a major effort to conserve and reuse Aquifer water, and implemented plans to import supplemental supplies of water, the region’s quality of life and economic future are imperiled.

Pretty bold stuff, frankly. Barnett notes that the ruling led to the creation of the Edwards Aquifer Authority to manage the groundwater system. So this looks like a case in which an ESA battle led to a sane water policy outcome.

More reading:

3 Comments

  1. Hi John,

    Not having read Barnett’s book nor studied Bunton’s decision, I cop to a certain amount of ignorance about the precedent your a citing above. But I am curious to know what specific living species was at issue in the Texas case.

    Your account seems to describe an insightful decision by a judge on public trust or tragedy of the commons issue rather than an Endangered Species Act issue, no?

  2. John –

    Book’s on my desk at home – I’ll add info about the specific fish involved this evening.

    But on the judge’s decision, I was discussing this with a member of my brain trust yesterday, a scholar of these things, who commented on how surprisingly broad Bunton’s decision was in its reach in applying ESA beyond a narrow species question. Perhaps surprisingly overbroad, and perhaps surprising that Bunton got away with it?

  3. If as you think there is a tenuous connection to a living species, that would indeed be a surprisingly broad interpretation! Too broad to be upheld, I would think, given Wanger’s opposite ruling on the X2 line in his recent Delta smelt ruling. Given the anti-ESA’s propensity to magnify “zealotry,” in the long run such overreaching would be a bad thing for the ESA.

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