Endangered Species Issues Pose Tension in Drought Response

By Paul Stinson

Oct. 7 — As drought-stricken states grapple with water supply issues, water experts warned of the looming tension between water users and the Endangered Species Act and legal peril that could impair a state's capacity for responding to drought, panelists said at a conference.

“Everywhere you look in areas where water is short, these conflicts between human uses and species are coming to the foreground,” said David Sunding, a professor at the University of California at Berkeley College of Natural Resources.

Sunding offered the Oct. 6 comments at SXSW Eco, a conference in Austin, Texas, during a policy panel on meeting the challenges of water scarcity moderated by Bloomberg BNA.

“There are all sorts of threats to the water system in Texas and California all over arid parts of the United States that are creating conditions of scarcity,” said Sunding, noting his ongoing water conflict consulting and research work in Florida, Texas, New Mexico, California and Arizona.

Robert Gulley, Texas Comptroller of Public Accounts director of economic growth & endangered species management, hailed recent water policy gains made by Texas to secure future water supply but warned that the state's capacity for responding to drought could be imperiled by species considerations.

“[D]espite the fact that the state is going forward with a lot of these water projects, the Endangered Species Act can really represent an obstacle to bringing many of these [water supply] projects online,” he said.

The Texas state official, an environmental attorney who previously once served at the Department of Justice, said he based those comments particularly on the result of lessons learned during his current work with the Edwards Aquifer Recovery implementation program, a habitat conservation program for a Central Texas water source serving 2 million people and discharging 687,000 acre-feet of water in 2012, according to aquifer data.

Recovery Implementation Program

“We certainly saw that in the recovery implementation program where for the last 20 years the region was essentially unable to do significant water planning until they came up with a solution to resolve their Endangered Species Act issues, which they did successfully,” Gulley said.

In July, Texas's state water planning agency approved $3.9 billion in financing for projects to increase water supplies across the state, kicking off the first wave of an estimated $27 billion in assistance for previous water infrastructure over the next 50 years.

The spectrum of approved projects includes desalination plants, reservoirs and transmission pipelines, drawing money from Texas's water infrastructure bank created in 2013 following voter approval.

“So we have a water crisis—whether it's here today, it'll be here tomorrow—so it's not only important we get the resources, but that we get them in a timely fashion and the ESA process—particularly when courts are often involved—can tend to delay that and therefore you're not getting the full benefit of the effort to try develop the [water] resources,” Gulley said.

“At a time when you're trying to build all the infrastructure, what this is likely to do is in many instances delay the projects significantly,” Gulley told Bloomberg BNA Oct. 6 following the panel, responding to a question about the extent to which the ESA could hamper state efforts to shore up water supply in the face of drought conditions.

State to Address Fresh Water Mussels

Saying that it represented “probably one of the better examples” of problems that his agency is dealing with, Gulley pointed to the 11 species of fresh water mussel for which listing decisions will be made, saying that “in all likelihood a significant number” of those will be listed given their ubiquitous presence “in almost every watershed” in Texas.

Addressing those issues, he said, will at a minimum require flow control, potentially seasonal, noting that such a measure will result in a decrease in water availability “just at the time you need it because the species will need water when they're in drought when the flows are low and the temperatures are high.”

He described the threat to water availability as a result of the issues posed by ESA considerations as “quite significant,” given the ripple effect that comes with being listed.

“Importantly one of the consequences of listing in being brought into the ESA world is that in order to be able to get a permit from the federal government,” the applicant has to go through a consultation process, and “that consultation process is going to further delay the ability to bring these things [water projects] online,” Gulley said.

“While drought is coming … the ability to respond to it despite the [water infrastructure bank] funding may be greatly impaired, and so I think this is going to have a big impact on our water availability over the next few years.”

Could Block Project

Speaking after the panel's conclusion, Gulley said that in some instances that blocking the project could be the right answer, but such a response would require balancing a water scarcity problem with the needs of the species.

And it is that balancing act that is the answer to solving the conflicts ahead, Gulley said, emphasizing that making that decision amounts to a “policy choice.”

“People have to recognize the problem and make an effort to find the right balance so that you can indeed protect the species while at the same time making sure that we've got the water that we need to keep the economy [going] and people drinking water,” he added.

To contact the reporter on this story: Paul Stinson in Austin at pstinson@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com