Water and endangered species are among the most controversial issues in Texas. But where have our state’s
leaders been when it comes to these issues? Ever since May of 1991, when the
Sierra Club filed a lawsuit to impose pumping limits on the Edwards Aquifer,
politicians have run for cover. Mayors, governors, U.S. Senators, and even the
Secretary of Interior have consistently delayed taking action that would help
resolve the long-standing water and endangered species controversies in Central
Texas.
Senior U.S. District Court Judge Lucius D. Bunton III can’t run from the
controversy. While local, state and federal officials have wailed about the
injustices of Big Government and the Endangered Species Act, Bunton, a
71-year-old Carter appointee on the bench since 1979, has been left to enforce
the law. And his decisions over the past two months, along with moves he is
certain to make over the coming months, have made him the de facto leader in Texas water policy.
But just because Bunton is leading doesn’t mean that elected and appointed
officials are following. Twice in the past two weeks, officials at the state
and federal level have tried to sidestep Bunton’s rulings. On August 29 — in
response to a deadline issued by Bunton to the Interior Department — the U.S.
Fish and Wildlife Service announced that it would allow the Texas Natural
Resource Conservation Commission (TNRCC), Texas Parks and Wildlife Department
(TPWD), and the Texas Department of Transportation (TxDOT) to devise a scheme
of protection for the Barton Springs Salamander.
On that same day, August 29 — six days after Bunton ordered the city of San
Antonio and the other defendants in the Sierra Club lawsuit to reduce their
pumping from the Edwards — Attorney General Dan Morales filed a motion to
intervene on behalf of the City of San Antonio and 1,000 other entities who
have been sued by the Sierra Club, which wants to regulate withdrawals from the
Edwards Aquifer. “In short, the Sierra Club wishes to federalize the aquifer to
the detriment of the State’s regulatory mechanism and to the detriment of
millions of Central Texans,” says the AG’s pleading in the case.
“Let Texans take care of Texas” is the rallying cry being pushed by state
leaders. Yet if all states operated on that principle, blacks and whites would
still be attending different schools and eating in segregated restaurants.
Federal courts are often the only venues that are free to make decisions based
on law, not politics. For instance, it took a federal court order by Bunton to
force Babbitt to finally take action on protecting the salamander. Local
biologists had asked the Fish and Wildlife Service to add the salamander to the
Endangered Species List in 1992. After numerous delays by Babbitt, the Save Our
Springs Legal Defense Fund compelled Bunton to order Babbitt to decide once and
for all whether the salamander was endangered.
But true to form, Babbitt announced that he would punt a decision on the
salamander yet again. With the help of Texas Governor George W. Bush, Babbitt
agreed to a deal that put three state agencies which have shown disdain for the
salamander in charge of protecting it. For example, TPWD has gutted its
endangered species branch and is currently opposing scientific inquiry on the
golden-cheeked warbler, an endangered songbird. The TNRCC has taken a position
that Barton Creek and Barton Springs do not have significant hydrological
links. And TxDOT has been fouling Barton Creek with tons of sediment and silt
from highway construction for the past several years. These bureaucratic
pillars of virtue will protect the salamander?
The state wants to get around Bunton’s ruling that a scientific determination
must be made on whether to list the salamander. The problem is, there is an
abundance of evidence that the salamander should be placed on the Endangered
Species List. Victor Hutchison, a professor of zoology at the University of
Oklahoma, was part of a team of biologists who assessed the dangers to the
salamander last year; he calls the salamander “the most endangered vertebrate
in North America.”
“I’ve asked and looked and found nothing else that comes close,” says
Hutchison.
The salamander has one of the smallest ranges of any vertebrate on this
continent. And Hutchison says the animal’s slow reproductive cycle and small
population make it highly vulnerable to pollution. (In June, City of Austin
biologists counted 24 salamanders. In July they found 39; in August, 29. On
September 9, they found just seven.)
When told that state agencies, not the U.S. Fish and Wildlife Service, will be
in charge of protecting the salamander, Hutchison said that “given the
environment in Texas right now, the political environment, and the
philosophical differences on how to proceed, I would have some doubts that it
would be very effective.”
Efforts by local politicians to protect the salamander have been just as weak
as the state’s plan. Austin Mayor Bruce Todd has been given much of the credit
for making the Balcones Canyonlands Conservation Plan (BCCP) a reality. But
throughout the development of the BCCP, which includes a 30,000-acre system of
preserves designed to protect eight endangered species, Todd and other players
in the BCCP hierarchy consistently ran away from the salamander issue. The BCCP
framers had an opportunity to include the salamander in the BCCP, but chose not
to.
While Todd and other Austin politicians have tried to ignore the needs of the
salamander, San Antonio Mayor Bill Thornton, along with a flock of state
officials, are doing their best to delay any resolution of the ongoing Edwards
Aquifer crisis. As with the salamander issue, Bunton stepped in, ruling that
San Antonio must be ready to limit its pumping by October 1. Thornton expressed
his wrath for the judge in no uncertain terms, saying that Bunton was “jacking
us around,” and that he was acting to save a “scrawny, underfed lizard.” A few
days later, Thornton personally delivered the city’s appeal of Bunton’s order
to the Fifth Circuit Court of Appeals in New Orleans.
Throughout the fight over the aquifer, Bunton has maintained a philosophical
attitude. He has quoted the Bible in many of his opinions on the matter. And in
July, he spoke at Southwest Texas State University in San Marcos about the
water situation in Texas. He said the Texas Legislature needs to re-examine
water rights in the state. And taking a shot at the property rights advocates,
he said “We’re very protective and very, very selfish with what we think and
believe we own.”
Mayor Thornton’s attacks have not rankled him. During a telephone interview
on Tuesday, Bunton said, “The courts are called on to enforce the laws that
Congress passes. And sometimes those laws aren’t popular. It comes with
territory.”
Thornton is bashing a federal official — Bunton — for exercising his
authority and meddling in city affairs. But the mayor doth protest about
federal intervention a bit too much. After all, the city depends heavily on
federal tax dollars: The San Antonio Chamber of Commerce estimates that
military-related spending in the city generates $12.3 billion per year.
“Water is our Achilles heel,” admits Lou Fox, a former San Antonio city
manager who now heads the Urban Administration department at Trinity
University. “We don’t understand that this commodity is terribly under-priced
and we abuse it by not recognizing that we are literally getting a free
ride.”
The tenth largest city in the U.S. and the largest city in the world
completely dependent on ground water, the Alamo City continues to have some of
the lowest water rates in Texas. The city doesn’t own a single fresh water
treatment plant. Instead, it has numerous wells that draw water from the
aquifer. The city adds a bit of chlorine and then pumps the water to customers.
The lack of expensive infrastructure allows the San Antonio Water System, the
city-owned water utility, to charge its customers an average of just $258 per
year for water, or less than half as much as the city of Houston charges its
customers.
San Antonio avidly promotes its $3.1 billion-a-year tourism industry, which is
second only to the military in terms of economic importance. But Thornton and
his predecessors have done little to protect the tourism business. The
Riverwalk region depends on water flow in the San Antonio River. So does one of
the city’s most interesting pieces of architecture, the Espada Aqueduct.
Located a short distance north of Mission Espada, the aqueduct, finished in
1745, carries water from the San Antonio River into fields near the mission
church. But the aqueduct, like the Riverwalk district, depends on the Edwards
Aquifer.
Huge pumps located in Brackenridge Park send about five million gallons of
water per day into the river. That water then flows down into the Riverwalk
district and past the city’s string of Spanish missions, which are all located
on or near the banks of the San Antonio River. To help reduce the amount of
water used in the Riverwalk area, the city has also undertaken a $33 million
project which will use treated wastewater on city golf courses and parks.
One park that could desperately use the city’s attention is San Pedro Park.
Located one and a half miles north of the Alamo, San Pedro Park is the
second-oldest municipal park — after Boston Common — in the US. Declared
public land by King Philip V of Spain in 1729, the park should be a source of
pride for the city. Instead, it is a crumbling, almost dreary place. The
dreariness comes from the lifeless corpse of San Pedro Springs. Fed by the
Edwards Aquifer, the springs have been dry for decades, killed by San Antonio’s
thirst for water. Once prolific, the springs fed a giant pool that was San
Antonio’s most famous swimming hole — a site for baptisms, political rallies
and concerts. Archaeologists have found prehistoric stone points and the bones
of numerous extinct animals near the springs, including wolves and mastodons.
Frederick Law Olmsted, the creator of New York’s Central Park, saw San Pedro
Springs in 1857 and wrote, “The whole river gushes up in one sparkling burst
from the earth… It is beyond your possible conceptions of a spring. You
cannot believe your eyes, and almost shrink from sudden metamorphosis by
invaded nymphdom.”
The city has plans to revitalize the park and fix its crumbling walkways and
driveways, but it cannot fix San Pedro Springs. The dead springs in San Pedro
Park and the ongoing fight over the endangered species in the Edwards Aquifer
are just the beginning of what is certain to be a huge battle for water in
Central Texas.
San Antonio is looking northward for a solution to their water problems. Plans
are afoot to build a pipeline from the Colorado River to the Alamo City, an
idea which is already drawing opposition from people in and around Austin, in
part because of San Antonio’s sluggish attitude toward water conservation.
Despite the city’s aquifer dependence, it didn’t begin serious water
conservation until 1994, when it began providing rebates to city customers for
installing low-flow toilets. By comparison, the city of Austin has been
actively promoting low-flow toilets through rebate and outreach programs for
the last four years. Approximately 75,000 Austin homes received water-saving
shower heads and toilet dams during door-to-door installation programs from
1986 to 1992.
While San Antonio officials have done little to diversify their water supply,
state officials like Morales and U.S. Sen. Kay Bailey Hutchison have worked to
preserve the “right of capture,” the antiquated law which allows San Antonio
and other pumpers unrestricted access to the groundwater beneath their land. In
1994, Hutchison threatened to cut the funding of the U.S. Fish and Wildlife
Service if it pursued a withdrawal reduction plan for the aquifer. In earlier
litigation over the Edwards, Morales sided with the farmers in Uvalde and
Medina Counties, who, like San Antonio, have fought any plans to reduce pumping
from the Edwards.
The Texas GOP, too, continues to oppose a sensible solution to the Edwards
crisis. In 1994 and again in June of this year, the party included this line in
their state platform: “We further affirm that groundwater is an `absolute
ownership’ right of the landowner.” As a leader of the Texas GOP, Bush has
shown little interest in talking about the San Antonio water issue. When it
comes to endangered species, Bush has responded with the “Texans should take
care of Texas” mantra.
But that’s the problem. Texas hasn’t taken care of its endangered species.
“The state’s position is `It’s a state issue and we have the right to do
nothing,'” says Stuart Henry, a partner in the Austin law firm of Henry,
Lowerre, Johnson, Hess and Frederick, which represents the Sierra Club. Texas
is “basically an exploitative state,” says Henry. “It always has been. They
[politicians] aren’t interested in preserving the natural and limited resources
of the state.”
A few state politicians have tried, albeit futilely, to deal with the Edwards
issue. During the administration of former Gov. Ann Richards, the Texas Water
Commission, under the leadership of John Hall, tried to get the aquifer
declared an underground river. That plan was shot down in court. In 1993, after
Bunton sided with the Sierra Club in their suit against the Interior
Department, the Texas Legislature created the Edwards Aquifer Authority, which
can institute pumping limits. The EAA finally became a reality earlier this
year after a lengthy legal battle, but last month, it refused to impose pumping
limits.
The EAA’s inaction left Bunton with few choices. In his August 23 ruling, he
wrote “Without a fundamental change in the value the region places on fresh
water, a major effort to conserve and reuse aquifer water, and implemented
plans to import supplemental supplies of water, the region’s quality of life
and economic future is imperiled. The court is soundly convinced that an
emergency presently exists and takes [unlawful killings] of endangered species
are occurring.”
Bunton will likely be on the hot seat again soon with regard to the
salamander. The Save Our Springs Legal Defense Fund (now the S.O.S. Alliance),
which sued Babbitt to force a decision on the salamander, will undoubtedly ask
Bunton to review the Interior Department’s protection plan for the salamander.
So while Thornton, Bush, Hutchison, Morales, and Babbitt have consistently
promoted delay after delay, Bunton has forced the issue. And he has offered no
apologies. “If you can show me what the state is doing to remedy this
situation, then I’ll reconsider,” he said. “But the state had done nothing that
I know of.”
On Tuesday, San Antonio won yet another delay; the Fifth Circuit agreed to
stay Bunton’s October 1 deadline. John Boggess, a spokesman for the San Antonio
Water System, said the Fifth Circuit’s ruling allows them to “maintain the
status quo.” Unfortunately, maintaining the status quo will not help resolve
the Central Texas water crisis.
Bunton acknowledges that he has been forced into a leadership position, and
that he has had to make a number of tough decisions regarding water and
endangered species. “Nobody likes these hard calls,” he said. “Everybody would
like easy calls. But that’s not what you take the oath to do.” n
This article appears in September 13 • 1996 and September 13 • 1996 (Cover).