As drought conditions and dry forecasts persist across Texas, lawyers will argue a case in front of the 5th U.S. Circuit Court of Appeals on Thursday that could have major implications for water supplies in the state — and for natural resource planning nationally.
Known as the “whooping crane case,” the lawsuit (The Aransas Project v. Bryan Shaw, Etc., No. 13-40317) pits environmental and endangered species advocates against state and local officials across the country. State agencies worry it could end up making them responsible for protecting federally designated endangered species.
Farming organizations from California to Mississippi and Wyoming have attached their names to briefs in support of the Texas Commission on Environmental Quality, which was sued by The Aransas Project in 2010 for failing to protect the only wild whooping crane flock in the world. Of the estimated 500 whooping cranes that exist worldwide, about 300 live in the Aransas Refuge, which is 50 miles northeast of Corpus Christi.
The nonprofit Aransas Project argues that the TCEQ violated the federal Endangered Species Act because it didn’t allow enough freshwater from the San Antonio and Guadalupe rivers to flow into the Aransas Refuge, resulting in the deaths of 23 cranes in the winter of 2008 and 2009.
In March, U.S. District Judge Janis Graham Jack agreed with The Aransas Project, ordering TCEQ to come up with a plan to conserve the cranes’ habitat, and blocking the agency from issuing more permits in the river systems. TCEQ immediately appealed the ruling, and its supporters slammed the judge for interfering with states’ rights by “coercing” a state agency to enforce federal laws.
At Abbott’s request, the 5th U.S. Circuit Court of Appeals agreed in May to allow the agency to issue water permits, pending the TCEQ’s appeal. Both sides will make oral arguments in front of the court in New Orleans on Thursday.
”With all the water issues that Texas is facing, this case could just add to the complexity and cost significantly,” said Alan Glen, a lawyer at the Sedgwick law firm in Austin who specializes in federal environmental law and is not involved in the case. “It’s very, very difficult to do water planning around endangered species. Not impossible, but very difficult.”
Andrew Sansom, executive director of the Meadows Center for Water and the Environment at Texas State University, said a 2007 Texas law requiring environmental flow regulations for the state's rivers should have required the protection of endangered species' habitats.
"The fact is, the state has been pretty inadequate in terms of implementing the law," said Sansom, who testified as an expert witness for The Aransas Project in the case.
But TCEQ disagrees, arguing that more freshwater inflows to the Aransas Refuge would not have saved the whooping cranes that died and that enforcing the federal Endangered Species Act is not the state agency's responsibility.
The court’s decision, which is not expected for several months, will probably have a major impact on water supplies in Texas. Officials for the governing bodies of the San Antonio and Guadalupe-Blanco rivers say a decision that favors The Aransas Project would immediately wreak havoc on water resources for their customers. The water authorities would probably have to allow more water to flow to the refuge rather than go to customers at a time when they say their water resources are already fully committed.
“It would be a drastic effect for the municipal, industrial and agricultural users up and down the Guadalupe River Basin overnight,” said Bill West, general manager of the Guadalupe-Blanco River Authority, or GBRA, which has joined TCEQ as a defendant in the lawsuit. West said that users of the river water would lose half their supply if the court agreed with the plaintiffs that the Aransas Refuge should get the first 1.1 million acre-feet from the Guadalupe before any of the other water-rights holders.
The GBRA’s biggest customers are the cities of New Braunfels and San Marcos, both of which recently restricted lawn-watering to once every two weeks as part of emergency drought restrictions. Because Dow Chemical is a major GBRA customer, the Texas Chemical Council has also joined the lawsuit as a defendant, along with the San Antonio River Authority.
But the case will probably have much more far-reaching effects. Should the March decision stand, TCEQ would be responsible for enforcing the federal Endangered Species Act, a duty the agency does not want. In a brief filed in May, Abbott argued that the TCEQ only enforces the water rights of permit holders. It has no obligation to make sure water users aren’t harming animals.
“The plaintiff’s argument, if accepted by this court, would prohibit state officials from issuing driver’s licenses because it’s not only foreseeable but inevitable that endangered species will be killed or injured by motor-vehicle traffic,” Abbott wrote.
Glen said the ruling could make state agencies that regulate oil and gas development responsible for ensuring that energy companies don't damage endangered species' habitats. That may well be a major issue in Texas if the U.S. Fish and Wildlife Service decides that the lesser prairie chicken, whose population has declined steeply due to the disappearance of native grasslands to development interests, belongs on the endangered species list. The agency has said it will make a decision by the end of September. If the bird makes the list, advocates for wind power and the oil and gas industry have said the effects could be "catastrophic."
The decision could also affect natural resource planning in the habitats of other animals that are on or nearly on the endangered species list, including freshwater mussels, which live in river basins across the state. But perhaps more than the others, whooping cranes have captured the imagination of many environmentalists because of their recovery from a population of just more than a dozen worldwide in the 1940s. Judge Jack, in her ruling, noted that the species’ recovery was “one of the most fabled stories."
“A picture of a dead whooping crane carries people to a lot [more] reactions than a presumption that some activity may have killed a mussel that you never saw,” Glen said.