July 28, 2014

Refusing to regulate water use through the endangered species act does not mean water use is unregulated

By Anthony L. Francois Senior Attorney

Last week I commented on the Fifth Circuit’s favorable decision in The Aransas Project v. Shaw.  An interested reader (who also appears to be a member of the plaintiff organization in the Aransas case) posted a reply of sorts, asserting that I “seem[] to believe there should be no regulation of water from lakes in Texas.”

Not to put too fine a point on it, but there is no basis in my post for this assumption.  The whole post is about the system that the State of Texas uses to do exactly that – regulate the use of water from natural sources.  There is a body of law that regulates water use in Texas; an important issue in the Aransas case was whether that existing system of regulation would be replaced by a different one (a habitat conservation plan under judicial supervision) in the Guadalupe Basin.  There are many reasons for people to be concerned about that change.  One of which is that state law systems to regulate water rights must, under our Constitution, afford due process protections to those who own water rights.  The absence of such protections is a weakness of the Endangered Species Act, as legal scholars have discussed.

One of our interests at Pacific Legal Foundation is in the balanced and rational administration of the Endangered Species Act, including the principle that human needs are not less important than those of wildlife.  One application of this principle is that people should not be punished under the Act when they have not violated it.  The Fifth Circuit’s analysis of the evidence presented at trial shows that the water diversions were not the legal cause of harm to the cranes in the winter of 2008-09.  This also highlights the unsuitability of the Act as a large scale water management tool, for which it was neither intended nor written.

As for as the pros and cons of Texas’ system for regulating water rights, we are all fortunate to live in a nation with democratic processes available for changing elements of state law with which we disagree.

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