The Conflict between Endangered Species and the State Water Plan: Will New Listings under the Endangered Species Act Thwart the State Water Planning Process?

Abstract

The U.S. Fish and Wildlife Service (the “Service”) -- the primary federal agency charged with implementing the Endangered Species Act -- is required by a court order to decide the regulatory fate of more than 700 species of plants and animals by the end of 2018. As part of a 2011 settlement agreement between the Service and environmental groups, the agency must decide whether to list certain species as “endangered” or “threatened,” thereby invoking the suite of federal protections that apply to listed species. Approximately twenty of the species on the Service’s list (the “work plan”) occur in Texas; sixteen of them are aquatic species living in the rivers and springs of Texas. As a result of voters approving Proposition 6, the state has new resources with which to fund water infrastructure projects to address projected future water demands. This paper examines whether water projects included in the Regional Water Plans and the State Water Plan and certain potential surface and groundwater withdrawals could impact any of the sixteen aquatic species in Texas that may be listed by the Service. The question, in broad terms, is whether the listings of the species could throw a wrench in the State Water Plan. The bulk of the water projects recommended in the State Water Plan and the Regional Plans focus on surface water, and the majority of the work plan species depend on groundwater for survival. For those projects that involve groundwater, the projects are in locations where species on the work plan are not found. Consequently, the authors conclude that, overall, the listing of aquatic species on the work plan will not impede the State water planning process, as the listings will only impact a small number of water projects recommended in the State Water Plan. The authors found that intersections between the listing of a species and a potential water project are limited to those projects planned in the upper Brazos River, where the possible listing of the sharpnose and smalleye shiners could affect construction of several reservoirs recommended in the State Water Plan, and in the Rio Grande River, where the possible listing of the Texas hornshell could impact construction of a low water weir.