The Endangered Species Act (ESA) is further complicating water management in the many states struck by drought. State water management bodies are increasingly coming into conflict with the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA), as these organizations add more species to the endangered species list. In a panel at SXSW Eco in Austin, Texas, Robert Gulley, Texas Office of the Comptroller Public Accounts; David Sunding, University of California at Berkeley; and Kathy Robb, Hunter & Williams, LLP, waded into the issues. The general consensus seemed to be: we need to take care of diverse species but a balance is needed. Also, underlying problems with federal and state water management laws and regulations make things all that much harder.
Texas: Freshwater Mussels and Long-term Water Planning
Texas is just now recovering from years of drought, but if “El Nino doesn’t come through, we’ll be right back to where we were,” said Gulley. In its last session, the Texas state legislature agreed to put $2 billion into a fund to finance long-term water banking projects, which run the full gamut of efforts to enhance the water supply. All sorts of new technologies and private public partnership models will be tested. The goal is to dramatically increase the amount of water stored by aquifers, boosting reserves for when times are dry. But as Gulley explained, the “Endangered Species Act can be an obstacle to long-range water planning.” He added that not all endangered species are found in surface water. It can get even more complicated because “new species can also impact groundwater resources.”
Between now and 2017, the FWS will decide on whether 57 species should be added to the endangered species list, which gives them all sorts of protections. “Upcoming, there are decisions alone on 11 types of freshwater mussels found in every watershed in the state.” Water use in the state is seasonal. “When we need to use it in the drought season is just the time when the mussels will need it. This is a significant threat to water availability.”
And while the FWS investigates whether to give a local jurisdiction a permit to use water, water treatment or use can be put on hold. As FWS consultation processes can go on for years, “the ongoing consequences can be severe.” As an example, Gulley pointed to the city of Abilene, Texas, whose water supply was “almost cut off” due to the drought. The city is in ongoing consultations with the FWS on the possible impact of pouring brine, which is an output of their treatment process for reusing brackish water, into the community’s rivers. They can’t do it yet because the brine could possibly impact two endangered species. “The process is still ongoing.” In the meantime, the city’s ability to reuse water and plan for back-up reuse systems is hamstrung.
California: A Water Management Crisis
For Sunding, an economist who consults with states on water resources, water conflicts around ESA are real and ongoing. California has just initiated a statewide 25 percent reduction in water use, with exemptions for farmers. While the measures will reduce wasteful water use for lawns, California, he argued, is having a “water management crisis, not a scarcity crisis.”
While the drought is “causing a massive dislocation for other species,” the state’s faulty water management system is causing “conflicts between humans and other species to come to the foreground.”
The majority of ESA conflicts in California occur when agricultural water users divert traditional sources of water because the one source they rely on has gone dry. Conflicts can also arise when new water infrastructure takes water out of existing water bodies in a way that affects water-based wildlife.
For example, the new multi-billion water infrastructure system being planned and created in Northern California will most likely lead the state to create alternative water supplies, which will then trigger FWS consultations. Northern California desperately needs to move forward with infrastructure planning to create new sources of water but ESA considerations will lengthen the process.
Obstacles Preventing Progress
California, Texas, and other western and southwestern states’ struggle to balance the needs of humans and wildlife will only get worse as species migrate to find new sources of water. Gulley said states will need some flexibility to deal with this, “and need to be recognized by the FWS for developing voluntary action programs.” But underlying issues in water management also need to be addressed if a balance is going to be struck long term.
For example, Sunding said the problem with the water management system in Texas is the state doesn’t recognize “conjunctive management,” meaning that it regulates surface water and groundwater in the same place differently. “They need to be able to manage both resources together to create better outcomes.” In too many states, “arcane water rules don’t match up with the reality.”
In California, the question is “can we manage scarcity with smarter policies?” When water users pay the water bill, they are paying for water treatment and the pressurized flow of water from the plant to their tap. “They are not paying for the water itself. That’s a problem because we’re not thinking of its value to other people or species. Too much water is locked up in bad uses. Livestock, cotton, hay, and rice water use are all low value uses of water.”
And Kathy Robb argued that the entire 43-year-old Clean Water Act regulatory system is outdated, and a 2014 decision by the Supreme Court to clarify the meaning of “traditional, navigable waters” in the act to now include tributaries with seasonal or intermittent flow has led to a total upheaval of the American water management system. This decision meant that power plants, waste water treatment facilities, oil and gas companies, and other industrial water users will all need to get permits to access the thousands of streams and creeks once deemed private and now labeled official “waters of the U.S.A.” In Kansas alone, there are 32,000 such tributaries. And, already, a single power plant could wait nearly 3 years and spend $270,000 in fees to get a permit.
Robb said “water lawyers are suing everyone now,” with 14 jurisdictional district court cases pending. As of now, 27 states are moving forward with the new definition of navigable waters, while 13 states have refused. She added, “this is not a sustainable way of creating water policy in the U.S. We can do better.”