Dedicated to saving plants and animals from extinction, the Endangered Species Act (ESA) also has complicated and far-reaching effects on water policy. As stated by a speaker at a recent conference at the Natural Resources Law Center, University of Colorado, "The ESA is behind much of what is happening and will happen in water law."

Brian Gray professor, of law at the University of California, noted that the ESA has more intricate and complex effects when concerned with water than when just land is involved. For example, Portland, Oregon area river issues could affect areas 200 miles upriver.

This concept was evident in the spotted owl dispute. The protection of the northern spotted owl closed large sections of land to timber interests. A later declaration that four subspecies of salmon were endangered affected a far greater area, from the fishes' spawning grounds in Idaho to the ocean, and could have restricted hydroelectric generation, irrigation, potable water use, logging in stream watersheds, cattle grazing, and development; in effect, almost any land use activity in the Columbia River Basin.

Gray discussed the court case, United States v. Glenn-Colusa Irrigation District, that attempted to establish water as a different classification than land and therefore not under the jurisdiction of the ESA. The district argued that state water law should prevail over the ESA. The court ruled against the district.

The ESA provides various opportunities for federal involvement in water regulation. For example, state or local governments careless about a water quality concern could be forced to take action by federal officials enforcing ESA provisions.

Mary Christina Wood, professor of law at the University of Oregon, described how endangered species listings sparked conflict over the use of Colorado River water by Upper Colorado River Basin states. Action taken by the U.S. Fish and Wildlife Service in the 1970s to protect endangered Colorado River fish included flow recommendations that would have limited the Upper Basin states' use of water guaranteed by the Colorado River Compact.

In response, water users sought to amend the act to exclude Colorado River fish from the provisions of the ESA. The program director of the Colorado fish recovery program, lacking the political support and the funding to implement fish recovery, negotiated a recovery program. Wood expressed concern that the benefits of ESA enforcement often are reduced by the need to negotiate with political interests.

Stanford Professor of Law Barton H. Thompson speculated that it is only a matter of time before a court hears a claim that the federal government has taken a water right through application of the ESA. A specter of regulatory takings thus would arise.

Barton noted that, increasingly, the federal government is using the ESA to require reduced water use of surface streams or groundwater aquifers. The ESA has even been used to block proposed new water projects. He expects that at some point an affected water users will bring a takings claim and litigate the case to final judgement.

At present no published opinions exist addressing the constitutionality of ESA regulation of private water rights. Barton believes that since courts generally have been deferential to government regulations in takings cases involving wildlife protection and water rights, it may be tough for a water user to challenge the ESA.

Chips Barry, manager of the Denver Water Department, provided an urban water utility perspective of the ESA. He noted that western water utilities are confronting increased water demands at a time when they have less water supplies available.

Confronted with an insecure water supply-caused in part by federal regulations, public objections to water storage projects and the exploitation of surface water supplies, and the lack of new available water rights — utilities seek assurances that their present water supplies are secure. To the extent that ESA threatens this certainty, utilities do not welcome its interference.

Barry said that accommodating ESA regulations to leave sufficient water to protect a species is possible when a new project is being built. Older established projects, however, face many obstacles in meeting such ESA requirements.

Several speakers urged that a reauthorization of the ESA include a shift in emphasis from a species-by-species approach to a broader ecosystem management strategy. This would encourage regional planning, with a focus on protecting important vanishing habitats needed for many species, instead of a plan that concentrates on a single listed species. Obviously water resource managers would have a central role in planning and implementing such an approach.

ESA now is being considered for reauthorization. At one time many observers believed that ESA's future was dim indeed, its fate in the hands of the 104th Congress, with its evident anti-environmental bias. To its critics ESA represented much that was wrong with the environmental movement — it was called the pit bull of environmental statutes — and they considered ESA fair game.

ESA, however, survived threats of immediate dismantlement. John Leshy, Solicitor of the Department of the Interior, described the situation as the showdown gunfight that never happened. He added that the ESA is in better shape now than it was a year ago, and that the act will gain in importance in the future. Other ESA supporters were not as optimistic, fearing that a reauthorized ESA still may include provisions to "water down" the act.

The 17th annual summer conference of Natural Resources Law Center was entitled, "Biodiversity Protection: Implementation and Reform of the Endangered Species Act."