The Little Fish that Roared: The Endangered Species Act, State Groundwater Law, and Private Property Rights Collide over the Texas Edwards Aquifer

Abstract

The Edwards Aquifer is the sole source of water for San Antonio, Texas. The Aquifer contributes surface water flow in the Guadalupe River through Comal and San Marcos Springs, both of which are home to endangered aquatic species, including the fountain darter. In 1993, a U.S. district court ruled that the Secretary of the Interior allowed takings under the Endangered Species Act (ESA) by not ensuring adequate flows from the Springs. The Texas legislature responded to a court mandated deadline to protect springflow by establishing the Edwards Aquifer Authority (EAA) to regulate groundwater withdrawals. In 1996, as a severe drought affected the region, the Texas Supreme Court overturned a state trial court ruling that EAA was unconstitutional. During a second ESA suit alleging that groundwater pumpers were causing takes of endangered species, the U.S. district court ordered the implementation of a plan to reduce pumping from the Aquifer. The court's order was later vacated and the litigation continues.