Environmental Protection

Survival of the Fittest

Conflicts between water resource development and wildlife protection ramp up across the country

Despite the common goal of environmental protection, federal agencies lately stand divided over the best use of our natural resources – to protect wildlife habitats or to expand water resource development for the future. More and more, these issues are splintering the industry into two camps supportive of either the Clean Water Act or the Endangered Species Act.

This tug-of-war likely will grow stronger in the coming years, forcing the courts to dictate priorities in terms of human or wildlife natural resource use.

In a precedent-setting case, the U.S. Supreme Court this summer ruled that the Clean Water Act (CWA) trumped the Endangered Species Act (ESA) when the U.S. Environmental Protection Agency transferred water pollution permitting authority to the state of Arizona (National Association of Homebuilders v. Defenders of Wildlife, No. 06-340, June 25, 2007). In the 5-4 ruling, the court ruled that the transfer of permitting authority by EPA did not require consultation with the National Marine Fisheries Service or the U.S. Fish and Wildlife Service (FWS). At issue was Section 7(a)(2) of the ESA, which requires federal agencies to consult with wildlife agencies to ensure that actions do not harm an endangered or threatened species. The state had satisfied the nine statutory criteria for transfer under CWA Section 402(b).

Justice Samuel Alito, writing for the majority, said that “(r)eading the provision broadly would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species.”

Arizona had received authority to issue its own water discharge permits for housing developments under the CWA. EPA consulted with FWS, which did question whether development might threaten endangered species such as the southwest willow flycatcher. However, both FWS and EPA approved the transfer on the grounds that CWA requirements had been met.

At the time of the court ruling, Brian Catalde, president of the National Association of Home Builders, applauded the court’s decision to give CWA precedence.

“This decision recognizes that we must always maintain a balance when we look at environmental regulations. We can’t say that the Endangered Species Act is an ‘uber-statute’ that should slow down regulatory decisions under the Clean Water Act even as we recognize that both laws concern issues that are vital to preserving this Earth for the next generation,” Catalde said.

Though some might argue the court’s ruling weakens the ESA’s power, giving greater weight to water use considerations, such battles involving wildlife conservation continue to play out in courts across the country.

A Water War in Texas
A case pending in a federal district court in Texas will decide whether land should be developed as a reservoir or as a wildlife preserve. In a combined suit, the Texas Water Development Board (TWDB) and city of Dallas are suing the U.S. Department of the Interior and FWS for water development rights.

The suit, filed in January 2007, seeks to reverse a 2006 FWS decision establishing the Neches River National Wildlife Refuge in East Texas, near Palestine. In its complaint, TWDB argues that FWS failed to adequately assess the environmental and socioeconomic impacts of designating the 25,281-acre site as a refuge in the same location as the proposed Fastrill Reservoir, which for years had been included in state and regional water plans.

“The Department of the Interior has basically ignored presidential edicts of federalism and trying to work with the states and just plowed into this thing on its own,” said S. Cass Weiland, an attorney with the firm Patton Boggs who represents Dallas in the case. “We need water. We like water. We like wildlife too, and we’d like to have both. We’ve told the feds you can have both.”

Weiland said alternate land is available for the refuge not far from the site. FWS set up the refuge through an initial 1-acre land donation last year; further expansion of the preserve to its full capacity, however, is on hold pending the case’s disposition.

Advocates for the refuge make good arguments as well. They claim the proposed reservoir really isn’t needed for the Dallas area’s long-term water resource needs if the region adopts water conservation strategies and pursues other water source development options, such as tapping into Lake Texoma.

“If the communities in Texas were able to meet the city of San Antonio’s per capita water use, we could save enough water to compensate for the building of all 19 proposed reservoirs in the 2007 state water plan,” said Ken Kramer, state director of the Texas Sierra Club and a refuge advocate.

The Case for Wildlife
Whether FWS identified the site as a refuge first or Texas water agencies targeted the land as a reservoir first is a debate resembling the classic chickenand- egg theory. The site along 38 acres of the Neches River was identified in 1985 by FWS as “ecologically important” based on its mix of bottomland hardwood forests, wetlands and riparian areas. The habitat attracts waterfowl such as mallards, dabbling and wood ducks.

Other species to be protected in the refuge area included the bobcat, river otter and multiple species of fish, reptiles and amphibians, including the threatened American alligator.

“Eastern Texas and Oklahoma bottomland hardwoods represent the only significant breeding habitat of the wood duck and are one of the most important wintering areas for the mallard in the central flyway, or migratory route,” stated FWS in a June 2006 press release establishing the Neches refuge.

Janice Bezanson, executive director of the Texas Conservation Alliance, agreed that the bottomland hardwood forest in that area is worth preserving.

“There’s not many left in Texas,” said Bezanson of bottomland forests. “Biologists estimate 75 percent have already been cleared, converted to pastures or made into reservoirs. This is a real important resource issue and it is a high priority for the Fish and Wildlife Service to protect bottomlands.”

This particular tract FWS rated as the highest in priority, based on three rating categories. Because of the wet terrain, bottomland hardwood forests are very biologically diverse, fertile and important to wildlife, she added.

“We designated it as a wildlife refuge because it has the best bottomland hardwood on a river that is not dammed. This habitat is very special,” added Elizabeth Slown, spokeswoman for the Southwest Region FWS.

The Texas Sierra Club contends building a 30,000-acre reservoir on that site would drown forever the bottomland hardwood forest for a reservoir that isn’t even necessary.

“Fastrill is not needed for water supply,” stated the chapter in a January 2007 press release. “The Region C Water Planning Group (for Dallas, Fort Worth and North Texas) identified enough water available from existing reservoirs to meet twice the demand projected for the region as far in the future as 2060. No one is proposing to bring Fastrill on line until 2045.”

The Case for Water
Drought conditions the past few years in Texas and projections that climate change may bring warmer temperatures and less precipitation in the future raised the level of concern regarding future water resource planning in the area.

“Projections indicate that by 2060 Region C water demands will increase 87 percent, from 1,768,464 acre-feet to 3,311,217 acre-feet. At the same time, the total water supply currently available in Region C is projected to decline about 9 percent by 2060,” said TWDB in a January press release defending its lawsuit.

The Fastrill Reservoir could store about 500,000 acre feet of water with a firm annual yield of about 15,000 acre feet, supplying water during drought for about 1.5 million Texans served by 40 municipalities and other water providers in the greater Dallas area, according to this Texas water board.

Opposition to other proposed reservoir sites in Texas, including Marvin Nichols, makes the water planning board’s job difficult, to say the least. Options suggested by wildlife advocates such as pumping water from the Toledo Bend reservoir, a private aquifer in West Texas or Texoma many deem too costly or complicated to execute.

But TWDB’s suit is based less on the area’s need for water than on procedural issues. In their petition, the plaintiffs complain that FWS failed to prepare an environmental impact statement or an adequate environmental assessment in various aspects when designating the desired land as a wildlife refuge.

“There are stringent analyses required to determine the impact of new reservoir development,” said Kevin Ward, TWDB executive administrator, in a January press statement. “We want to ensure that the USFWS meets the same stringent requirements in evaluating the effects of developing a wildlife refuge that would negatively impact the future water supply needed by one of the fastest-growing areas of Texas.”

Though this case could take months if not years to resolve, it is yet another that environmental and legal professionals will be watching to see which way the courts lean, whether toward wildlife preservation or water development.

A Fine Balancing Act
The Texas case is but one example of numerous such battles to crop up in America going forward, given growing human populations and limited water resources. According to David Conrad, a water resource specialist for the National Wildlife Federation, exceptions can be made even if a project contributes to elimination of a wildlife habitat or a threatened or endangered species.

“There is a committee that can be invoked to override the Endangered Species Act,” said Conrad, if the economics of a project are deemed more beneficial than impact to wildlife.

When Congress passed the Endangered Species Act in 1966, it authorized FWS to spend up to $15 million per year to buy habitat for listed endangered species. It also directed federal land agencies to preserve endangered species habitats on their lands “insofar as is practicable and consistent with their primary purpose.”

In 1978, the Supreme Court gave ESA priority over other federal actions when it ruled that construction of Tellico Dam be halted to salvage habitat of the endangered snail darter fish. Congress rebuffed the court’s action by creating a “God Squad,” the committee Conrad referenced that could decide ESA issues. This committee sided with the court’s decision in 1979.

An amendment to the ESA passed in 1978 enabled a specific project to be excluded from the act. If a dispute arose, a special Endangered Species Act Committee could override the act. The committee, which came to be known informally as the “God Squad,” consisted of the Secretary of Agriculture, Secretary of the Interior, Chair of the Council of Economic Advisors, Secretary of the Army, head of EPA, head of the National Oceanic and Atmospheric Administration and a state representative from the affected state.

In the end, the dam was built by the Tennessee Valley Authority (TVA) when an appropriations bill exempted the dam from the ESA. In 1980, more snail darters were found, revealing that the fish species wasn’t really that endangered.

Regardless of which side wins in cases involving conflicts between water rights and wildlife protection, the TVA case illustrates that few “facts” in these cases can be proven, with decisions based on projected water resource needs and estimations regarding a species’ status as threatened with extinction. The side that wins likely makes a more convincing case to the court.

This article originally appeared in the 10/01/2007 issue of Environmental Protection.

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