Survival of the Fittest
Conflicts between water resource development and wildlife protection ramp up across the country
- By Danielle Duclos
- Oct 01, 2007
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.
About the Author
Danielle Duclos is a technical editor and writer for Foresight Science and Technology, a consulting and market research firm in New Bedford, Mass.