Water Law and the Endangered Species Act
David N. Cassuto
Pace University - School of Law
affiliation not provided to SSRN
July 28, 2010
WHOSE DROP IS IT ANYWAY?: EFFECTIVE MANAGEMENT OF OUR NATION'S WATER RESOURCES, Megan Baroni, ed., 2010
This chapter examines the interaction between the Endangered Species Act (“ESA” or “Act”) and water law at the state and federal levels. Water rights and water use are limited by the ESA’s powerful federal mandates, which protect endangered and threatened species and their habitats. Section I of this chapter presents an overview of the relationship between the ESA and water law. Section II looks closely at the history and statutory precepts of the ESA. It focuses on the sections most pertinent to water law – specifically: the listing of threatened and endangered species and their habitats, federal duties to conserve listed species, and the prohibition against “taking” a listed species.
Section III offers a broad outline of the cause-and-effect relationship between the ESA and water law, explaining how water use can harm riparian life, and discussing which water uses and rights potentially conflict with the Act. Section IV examines the Act’s effect on state water rights, focusing on several significant judicial decisions. Section V looks at the ESA’s effect on federal water law, and likewise examines a number of relevant cases. Section VI explores the implications of the Act on the federal Bureau of Reclamation, a dominant player in water use in the western United States. Section VII discusses the often ignored but increasingly important impact of the ESA on groundwater rights. Finally, section VIII concludes with some thoughts for the future.
Number of Pages in PDF File: 36
Keywords: water law, Endangered Species Act, ESA, riparianism, prior appropriation, Bureau of Reclamation, Army Corp of Engineers, federalism, water rights, water use, groundwater, environmental law
JEL Classification: K10, K11, K12, K13, K19, K32, K23, K39, K40, K41, Q10, Q15, Q18, Q20, Q21, Q25, Q26, Q29
Date posted: July 28, 2010 ; Last revised: March 7, 2012