3. SUPREME COURT: Justices weigh plunge into Texas water fight (Greenwire, 10/08/2009)

Jennifer Koons, E&E reporter

The Supreme Court has asked the Solicitor General's Office to weigh in on a conflict between Texas and the U.S. Fish and Wildlife Service that pits future water needs against conservation.

The case concerns a challenge to Fish and Wildlife's attempts to designate 25,000 acres of forested wetlands in east Texas as a wildlife refuge, blocking state and local plans to build a reservoir along the Neches River in the next 50 years.

The city of Dallas and the Texas Water Development Board (TWDB) filed suit in 2007, contending that the service established the Neches River National Wildlife Refuge in 2006 without first conducting necessary environmental impact studies.

In separate lawsuits, they argued that the agency violated the National Environmental Policy Act (NEPA) because it failed to adequately consider the environmental impacts on Dallas' water supply, economy and future water planning.

In July 2008, U.S. District Judge Jorge Solis denied the motions to require a more detailed environmental study.

A more extensive environmental assessment is not necessary, Solis held, because "establishment of the refuge will not alter the condition of the land as it is today."

Last March, a unanimous three-judge panel on the the 5th U.S. Circuit Court of Appeals affirmed the decision.

"The city and TWDB never committed to constructing the reservoir and may never have done so, or may have constructed a reservoir at another site," Judge Kurt Engelhardt wrote for the court. "Further, the effects of establishing the refuge, and thus precluding the reservoir, are highly speculative and cannot be shown to be the proximate cause of future water shortages in Dallas."

This June, Dallas and the Texas water board appealed the decision to the Supreme Court, pointing to a circuit split "on the same important matter."

"[FWS] took an unnecessarily myopic view of the State's plans for developing Fastrill Reservoir to provide a water supply for the Dallas metropolitan area and others," Texas Attorney General Greg Abbott (R) argued in a petition on behalf of the water board.

"FWS's lack of consideration of Fastrill Reservoir is evident in the service's decision not to perform an EIS pursuant to NEPA's mandates," Abbott wrote, adding: "NEPA requires the performance of an EIS because it was reasonably foreseeable that the refuge determination would significantly affect the quality of the human environment by causing indirect socioeconomic and environmental effects for the city and the state."

On Sept. 15, the Supreme Court ordered Solicitor General Elena Kagan to file a federal response within 30 days.

"The court only orders the respondent to file a response 10 and 15 percent of the time, which is a sign that at least one justice is taking an interest in the case," said assistant city attorney, Chris Bowers, who filed Dallas' petition for certiorari. "It means that our chances of the court agreeing to hear the case have gone up."

The case has generated widespread interest in and around Dallas and has made for some unusual alliances on both sides of the refuge.

"When you have issues like this, nontraditional allies are generally formed -- in this case between land groups and environmentalists," said Gina Donovan, executive director of the Houston Audubon Society, who was formerly with the Texas Conservation Alliance. "This is quite common on reservoir issues -- even timber groups have joined with conservation groups to help protect property."

The Texas Conservation Alliance, the Houston Audubon Society and others have closely followed the legal proceedings and plan to file friend-of-the-court briefs in support of the government if the Supreme Court decides to hear the case.

"This is a critical migratory bird habitat," Donovan said. "We are right in the middle of the central fly zone for waterfowl and songbirds."

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