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Supporters of The Aransas Project (TAP) and public officials received an update regarding TAP’s lawsuit against the Texas Commission on Environmental Quality (TCEQ) Monday, April 4. The lawsuit, which stems from the deaths of an inordinate number of endangered whooping cranes during the extensive drought in 2008-09, seeks changes in the way water is taken from the San Antonio and Guadalupe rivers.
The drought that winter, coupled with the low freshwater inflow into the bays and estuaries, resulted in a drastic reduction of the whooping crane’s primary food source – blue crabs.
Twenty-three cranes, including 16 juveniles, died. The whooping crane count was 270 in December 2008 and 247 in March 2009, a loss of 8.5 percent.
In March 2009 a blue crab count found zero crabs in the marsh.
Tom Stehn, who tracks whooping cranes at the Aransas National Wildlife Refuge every year, said at that time, “Overall, these continue to be some of the worst conditions I have ever observed for the cranes at Aransas, with some birds looking thin and with disheveled plumage. The refuge is continuing its program of supplemental feeding with corn.”
TAP contends the reduced freshwater inflows during the drought period increased salinity to amounts greater than 35 ppt. At that level, bay species productivity declines (including blue crabs), which means less food for whooping cranes. Cranes also do not drink water with such high salinity.
“That year we had cranes flying all over the place looking for food,” said Charles Irvine of BlackburnCarter, the law firm hired by TAP. “All the extra flying expended a lot of energy, too.
“We think that all contributed to the whooping crane mortality.”
Who owns the water?
The State of Texas owns all surface water. A water rights permit is required for one to divert or consume state water.
“The problem is the Guadalupe and San Antonio rivers are fully, or over-allocated,” said Irvine.
He said this isn’t a major problem, except during drought conditions.
“During droughts there’s barely enough water flowing (without any being consumed) to keep the bays healthy,” said Irvine.
The TCEQ issues and oversees water rights permits.
“This is how we came to sue the TCEQ,” said Irvine.
Chain of causation
Irvine said cranes die and/or are harmed because: there are not enough resources, bay salinity was too high, and during the drought people kept diverting water from the river because the TCEQ allowed them to.
According to the Endangered Species Act (ESA), it is illegal to “take” a species. “Take” is defined in the ESA as to harass, harm, pursue, hunt, shoot, would, kill, trap, capture, or collect a member of a listed species.
The term “harm” includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
Citizens’ suit litigation
The original complaint was filed March 3, 2010. The TCEQ was sued in Judge Janis Jack’s Federal District Court in Corpus Christi.
“This is not about money,” said Irvine. “It’s about changing actions (of the TCEQ).”
Subsequent interveners in the lawsuit are the Guadalupe Blanco River Authority (GBRA), the Texas Chemical Council (TCC), and a number of other organizations and corporations.
Judge Jack denied the inclusion of all interveners except for the GBRA and TCC, noting between the TCEQ, GBRA, and TCC, all issues from the other interveners would be covered.
The three remaining interveners filed motions to dismiss the case, presenting numerous arguments.
Among the motions to dismiss was TAP did not have standing, TAP did not identify a particular cause of death, TAP can’t sue the TCEQ because they don’t divert water, as well as Constitutional defenses (5th, 10th, and 11th amendments).
The interveners also asked Jack to abstain from the case for various reasons, including the federal court should abstain to avoid interfering with some ongoing state administrative process, and that adequate “environmental flows” for the rivers are being determined as a result of Senate Bill 3 (SB3).
TAP filed responses to all arguments. Oral arguments were heard July 28, 2010.
The judge denied all the motions to dismiss and to abstain.
“She basically said the trial can go on,” said Irvine.
The interveners which were initially denied joining the lawsuit, except for the San Antonio River Authority, were denied again on appeal on Dec. 22, 2010.
The interveners were denied a rehearing, and the stay was lifted March 17, 2011.
Irvine said now a new schedule for the lawsuit will be set.
“The trial date is likely to be in November,” said Irvine.
SB 3
Joseph F. Trungale, P.E. followed Irvine’s presentation with a brief explanation about SB 3 and the process the state went through to determine the proper amount of water which can be released and at the same time keep rivers and bays healthy.
“They are determining what is required without politics involved,” said Trungale.
He said the process used to determine appropriate water levels is complex.
“SB 3 is really about coming up with a best first guess,” said Trungale.
He said the study periods do not cover the fall or winter months which is extremely critical for blue crabs, and therefore, whooping cranes.
Trungale said the group which studied the environmental flows determined “about 250 cfs is the flow which is necessary to keep the bays (into which the San Antonio and Guadalupe rivers flow) healthy.”
Conclusions made by the group include:
• Regulatory constraint for new water rights would allow development of major new water development projects.
• Strategies to meet identified shortfalls could be developed, however, it does not appear there will be shortfalls.
“(Basically), this group just decided droughts happen,” said Trungale.
A third issue
A third issue is the proposed nuclear plant to be constructed about 30 miles from Victoria on the Guadalupe River.
TAP’s Ron Outen said, “What concerns TAP (regarding the nuclear plant) is the amount of water which could be diverted.”
Senior strategist Shannon Ratliff said a nuclear plant takes an immense amount of water to operate.
Entities involved in the proposed nuclear plant are operating under an early site permit. That does not give them the right to build, but rather to determine if the site is suitable for a nuclear plant.
Ratliff said once the site is determined suitable (i.e. – no issues with the amount of water required), the Nuclear Regulatory Commission can’t look at that particular issue again, unless there is a pressing reason to do so.
He said one of his major concerns is the site is located near active geologic faults. The area in which construction is proposed is also home to the highest level of abandoned oil and gas wells which could increase the likelihood of emerging gasses.
Ratliff’s biggest concern is the taking of 75,000 acre feet per year of water from the Guadalupe River.
“That’s 24 billion gallons of water per year,” he said.
“The reason a nuclear power plant is relevant to you is that it will require, at some point, a significant amount of water,” said Ratliff.
He said that will significantly lessen the amount of water entering the bays, which will in turn effect the oyster, shrimp, and crab populations, and therefore effect the whooping cranes, an endangered species.
“There is an opportunity for this community to get involved in this issue. This will have an impact on the ecology of the bay, and the economics of the area,” said Ratliff.
Conclusion
Aransas County Commissioner Charles Smith said, “I think it’s pretty clear our bay systems and estuaries are the most productive area … the cradle of life.
“Our cradle is being robbed.”
He said more than 80 percent of the members of the committees who are making recommendations are water sellers or water users.
“They’re all appointed and represent their interests,” said Smith.
An elected official can’t do that, he said.
“They’re saying we can do with less water than we did in 2008-09. How crazy is that?” asked Smith.
“We need to form a group to protect our interests (far beyond the time the TAP lawsuit is settled),” he said.
Smith noted State Representative Todd Hunter and State Senator Glenn Hegar said they are interested in revisiting SB 3.