Lone Justice
To Protect Resources, Judge Bunton Defies Politicians
By Robert Bryce, Fri., Sept. 13, 1996
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
Got something to say on the subject? Send a letter to the editor.
