Environmentalists score a win in case with big water implications

Mar 12, 2013 | Austin American-Statesman by Asher Price | TAP In The News

In a case with significant implications for how much water is set aside for environmental purposes, a federal judge Monday held that the Texas state environmental agency is responsible for the deaths of 23 endangered whooping cranes several years ago.

The Texas Commission on Environmental Quality failed to manage the waters of the Guadalupe River to ensure the survival of the cranes, district judge Janis Jack wrote.

“Inactions and refusal to act by the TCEQ defendants proximately caused an unlawful ‘take’ of at least twenty-three whooping cranes” in violation of the endangered species act, Jack held.

This morning, officials at TCEQ were still reviewing the ruling.

The ruling is a victory for an alliance of Gulf Coast environmental and business groups, led by a prominent South Texas family, which filed the lawsuit in 2010 after the 23 bird deaths — about 8.5 percent of the flock — in the winter of 2008-2009. The cranes winter at the Aransas National Wildlife Refuge, around 50 miles north of Corpus Christi, in San Antonio Bay.

The ruling will have consequences for water use in the Guadalupe River Basin – which includes Kerrville, New Braunfels, San Marcos and Victoria – and pumping from the Edwards Aquifer.

It requires the state to come up with a conservation plan for the whooping crane that ensures freshwater flows into San Antonio Bay, one that could include the reallocation of existing water-use rights in the basin. The Legislature set up a process to ensure that river basins set aside enough “environmental flow” for fish and wildlife. But the process “is riddled with carve-outs and exceptions that relegate the ecological needs of the Whooping Cranes’ to a secondary status,” the judge wrote. “That policy framework, no matter how elaborate, has no ‘teeth’.”

The alliance, known as the Aransas Project , claimed that the Texas Commission on Environmental Quality, which authorizes the use of river water around the state, had allowed too much fresh water to be diverted from the Guadalupe River before it reached the bays where the whooping cranes winter. As a result, according to the alliance, saltwater levels in the bays have increased, driving away or diminishing the number of blue crabs and wolfberries available for the whooping cranes to eat.

The environmental agency had argued that other factors, like drought, can affect the fate of the whooping cranes. In a sign of how valuable the river water is, the TCEQ was joined by the Guadalupe-Blanco River Authority, the San Antonio River Authority, and the Texas Chemical Council — agencies and industry that stood to benefit by using the water for other purposes.

The Guadalupe-Blanco River Authority, which oversees the distribution of water from the Guadalupe, argued it was already making sure water is available for downstream needs.

But the judge agreed with the Aransas Project.

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