Suit filed to protect whooper’s habitat

Mar 30, 2010 | Rockport Pilot | TAP In The News

The Aransas Project (TAP) has filed a federal lawsuit against several officials of the Texas Commission on Environmental Quality (TCEQ) in their official capacities for illegal harm and harassment of whooping cranes at and adjacent to Aransas National Wildlife Refuge in violation of the Endangered Species Act.

The lawsuit was filed Thursday, March 11 in the United States District Court for the Southern District of Texas, Corpus Christi Division. The defendants named in the suit in their official capacities are the three TCEQ commissioners, the agency’s executive director, and the TCEQ’s South Texas watermaster.

The Aransas-Wood Buffalo flock of whooping cranes that winters on the Texas coast is the only natural wild flock remaining in the world. The flock has increased from 16 birds in the early 1940s to a high of 270 in the spring of 2008. The 2008-2009 year was the worst in recent history for the whooping crane, with a death toll of 57 birds, a loss of 21.4% of the flock. Of those, 23 deaths, or 8.5% of the flock, occurred in Texas during their winter at Aransas. The lack of freshwater inflows to the bays from the Guadalupe and San Antonio Rivers, especially during times of low flows, resulted in high salinity levels and depleted food and water sources for the cranes.

TAP attorney Jim Blackburn explained, “The harm the whooping cranes have experienced is a direct result of TCEQ’s failed oversight of its water rights permit programs in the Guadalupe River Basin where too much water is being taken out of the Guadalupe and San Antonio rivers, especially during low flow conditions.”

Blackburn continued, “The scientific evidence strongly indicates during lower flow conditions, the full use of existing water rights in this basin, granted and overseen by TCEQ, will worsen the condition of the whooping cranes if fully utilized.”  These existing water rights are beyond the reach of both the environmental flows process established by the Texas Legislature under Senate Bill 3 and the Edwards Aquifer Recovery Implementation Program, neither of which offers the authority or scope to protect the cranes or to remedy the over-allocation of water resources that already exists in this basin.

Causing harm, harassment, or death of the protected cranes is illegal under the federal Endangered Species Act. To remedy the violations of the federal law caused by TCEQ’s administration of the state’s water permit program in the Guadalupe River Basin, TAP seeks an injunction to prohibit TCEQ from approving or processing new or pending water rights permits in this basin until the court can oversee the development, approval, and implementation of a Habitat Conservation Plan for the whooping cranes.

TAP is seeking a Habitat Conservation Plan under the Endangered Species Act, including a water management plan for the Guadalupe and San Antonio Rivers which:

• Requires a full accounting of all water use throughout the basin now and in the future.

• Requires an analysis of existing water commitments and pending water permits to develop a plan to rollback the use of existing water rights during low flow conditions.

• Ensures freshwater inflows to the San Antonio Bay system, especially during low flow conditions.

More than 60 days have passed between the filing of TAP’s federally required Notice of Intent to Sue and the filing of the lawsuit. Blackburn notes TAP had been hopeful an alternative to litigation might emerge during that time, but TCEQ has failed to act. Blackburn said, “It’s become apparent the only way we’re going to see any water left for the bays and the cranes is through a plan ordered by the court.”

Blackburn observes actions by the Guadalupe-Blanco River Authority (GBRA) since the filing of the Notice of Intent to Sue demonstrate the need for legal action. During that time period, GBRA, without seeking public comment and on an accelerated timetable, lengthened the term of an existing contract with Exelon which ties up more than 24 billion gallons of water annually from the Guadalupe River for a proposed nuclear plant that may never even be built.

“The combination of TCEQ’s failure to act, along with GBRA’s aggressive actions since the Notice of Intent was filed, demonstrates utter disregard for the fate of the whooping crane and for coastal communities,” said Blackburn. “TAP’s actions are similar to those of GBRA and Sierra Club when they litigated endangered species lawsuits in response to unregulated pumping in the Edwards Aquifer.”

During the 60-day notice period, TAP’s membership has continued to grow, adding more than 20 new member organizations including all four local governmental entities in Aransas County, both the Republican Party and the Democratic Club in Aransas County, as well as statewide and national organizations like the International Crane Foundation, Environment Texas, Texas Conservation Alliance, the American Bird Conservancy, and three Texas chapters of the Audubon Society.

TAP regional director Dr. Ron Outen said, “In Aransas County, our economies depend on freshwater for survival. We are frustrated the state has not provided a process to address our concerns about the lack of freshwater reaching the bays.”

He also said, “This is about more than one bad year; the long-term survival of the bays and the cranes is at stake. To those officials who continue to pass off the threat to the cranes as being limited to the drought, the drought is in fact the window to the future, and we cannot afford to risk perpetuating low flow conditions.”

The whooping cranes travel 2,500 miles from their nesting grounds in Canada to reach this unique and rare ecosystem along the Texas coast.

Outen noted, “Cranes are widely recognized as the international icon of endangered species. Here in Texas, mismanagement of water is destroying the winter habitat of these magnificent ambassadors of goodwill – and killing them.”

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