Wednesday, September 28, 2011

ESA listings announcement

On Monday, the Fish and Wildlife Service announced that it would initiate "status review" for 374 species to determine whether they should be listed as threatened or endangered.  All of the species rely upon aquatic habitats, and all live in the southeast.  The announcement responds to a petition filed by a coalition of environmental groups, including the Center for Biological Diversity.

The announcement is interesting in many ways, but two lessons seem particularly important.  First, the announcement underscores the extent to which aquatic habitats are degraded.  We've made huge strides in managing municipal and industrial wastewater, and we've had some localized but still spectacular successes with dam removals, but we've had far less success addressing the impacts of agricultural runoff, urban stormwater, riparian habitat loss, flow alterations, invasive species, and dams and other structural changes.  The potential listing of several hundred new species illustrates the consequences of those failures, and the pervasive water management challenges we continue to face.

The announcement also suggests that another piece of western water law may be coming east.  For western water law practitioners, there may be no single law more important than the ESA.  Water law courses might emphasize the intricacies of prior appropriation doctrine, but with threatened or endangered species inhabiting just about every major western river system and, in many parts of the west, ribbons of critical habitat running up nearly ever stream valley (check out this site and zoom in on the Pacific Northwest), the ESA dominates many water litigators' dockets.  The east already has seen previews of that importance, with Florida attempting, so far unsuccessfully, to use the ESA as a lever in its dispute with Georgia and Alabama over the Apalachicola-Chattahoochee-Flint system.  With the potential addition of dozens, if not hundreds, of new species, that sort of litigation could become a lot more common.

- Dave Owen

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