The Q&A: Stuart Henry

With each issue, Trib+Water brings you an interview with experts on water-related issues. Here is this week's subject:

Stuart Henry was the attorney for the Sierra Club during litigation that spurred the creation of the Edwards Aquifer Authority.

Editor's note: This interview has been edited for length and clarity.

Trib+Water: Can you briefly explain what the original Sierra Club v. Babbitt lawsuit was about?

Stuart Henry: It was a suit against the federal Fish and Wildlife Service. The federal Fish and Wildlife Service failed to put minimum drawdown limits on the Edwards Aquifer in order to preserve spring flows in both San Marcos and Comal Springs.

The federal Fish and Wildlife Service had already indicated in their studies that there needed to be some limitations put on the drawdown of the Edwards in order to not dry up both springs, and therefore adversely impact the endangered species in both springs.

Trib+Water: Who were the on the plaintiff side of the case and defendant side of the case? And what was the ruling?

Henry: The plaintiffs were the Sierra Club, the Guadalupe-Blanco River Authority, the City of New Braunfels, the City of San Marcos, and a water group in San Antonio. The primary defendant was the U.S. Fish and Wildlife Service. Intervening as defendants as well were a San Antonio water group, several irrigators that were withdrawing water from the Edwards; and the main defendant was the San Antonio water supply corporation.

The final ruling was appealed to the circuit two or three times, but the ruling that made the difference was the ruling from Judge Bunton, which basically gave the Texas Legislature about six to nine months, as I recall, to pass some legislation that would take over the regulation of the withdrawal from the Edwards. The purpose was to protect spring flows in Comal and San Marcos springs in order to not adversely affect the endangered species that rely on those springs. The case was under the Endangered Species Act.

It was basically claiming that the Fish and Wildlife Service was allowing takes, or harassment, of the endangered species downstream from both Comal and San Marcos springs, and the judge found that was correct but gave the Texas Legislature an opportunity to pass some legislation. As a result of that, the Edwards Aquifer Authority was enacted by the Legislature.

Trib+Water: What did the state do in response to the ruling?

Henry: Well, the Legislature did pass a bill creating the Edwards Aquifer Authority. Prior to that, the state had the Texas Commission on Environmental Quality, which I think at that time was known as the Texas Natural Resource Conservation Commission (TNRCC).

They declared that the Edwards was an underground stream and took over jurisdiction, but the commission’s actions were appealed in district court in Travis County and the declaration that it was an underground stream was overturned and that’s about all the TNRCC did.

Trib+Water: What has been the broader impact of Sierra Club v. Babbitt upon Texas water?

Henry: Well, I think the ultimate effect of the suit has not been totally determined yet, because there has not been extreme drought like there was in the late ‘80s, early ‘90s. That drought dried up the San Marcos springs. So the objective of the Edwards Aquifer Authority was to ensure that the endangered species that relied on those springs were not harmed or taken, and we don’t know yet whether the efforts of the Edwards Aquifer Authority have been successful, or will be successful, in that since we haven’t had a repeat of the dry periods we’ve had in the past.

But the Edwards Aquifer Authority has taken over. A lot of the indirect purposes of the lawsuit was to have San Antonio create alternate water supplies. At the time of the lawsuit, San Antonio relied exclusively on the Edwards Aquifer for its water supply and it has now diversified its sources of water and is continuing to try to do that, so it’s really not a sole source aquifer for San Antonio at this point.

In addition, the establishment of the Edwards Aquifer Authority created a marketing scheme where the irrigators to the west who were relying on the Edwards Aquifer as well can sell their water to San Antonio on either a permanent or yearly basis and thereby save some water at the Edwards, as an overall impact.