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TAP Legal Action and Progress
The Aransas Project (TAP) has determined that the health, survival and recovery of the whooping cranes is directly related to the freshwater inflows regulated and controlled by TCEQ officials. TAP claims that the water rights permit program of the TCEQ has reduced freshwater inflows to the San Antonio-Aransas Bay complex to the extent that significant habitat modification and/or degradation have occurred. The marsh-estuary habitats used by the whooping crane are made more salty and for longer periods. As a result, the ecosystem is less productive and the natural food sources of the crane become scarce. This habitat modification and/or degradation injure wildlife by significantly impairing essential behavioral patterns of the whooping crane, including feeding and watering (i.e., causing harm). Similarly, TAP is alleging that the action of TCEQ officials has reduced freshwater inflows to the extent that the likelihood of injury to the whooping cranes has increased by disturbing them to such an extent as to significantly disrupt normal behavior patterns which include feeding and watering (i.e., causing harassment).
Guadalupe-San Antonio River flows into the San Antonio Bay during the period July through December and Whooping Crane winter mortality from 1988-2009. Mortality data (% of flock) from Tom Stehn, USFWS.
River Flows Correlation to Whooping Crane Mortality
TCEQ’s water permitting process authorizes the use of surface water rights from the Guadalupe River. Such diversions reduce necessary fresh water inflows to the bays and estuaries in Aransas County. The perilous situation of the endangered whooping cranes last winter stemmed from insufficient Guadalupe River flows reaching their habitat. Within TCEQ’s process, water commitments continue to be made that allocate more water from the Basin.
Notice of Intent to Sue
On December 8, 2009 The Aransas Project (TAP) filed a Notice of Intent to sue several officials of the Texas Commission on Environmental Quality (TCEQ) in their official capacity for illegal harm and harassment of whooping cranes at and adjacent to Aransas National Wildlife Refuge in violation of Section 9 of the Federal Endangered Species Act. The individuals to be sued in their official capacity include the three commissioners of the TCEQ, the Executive Director, and the TCEQ’s Watermaster for the Guadalupe River. Under federal law, TAP must wait at least 60 days before filing suit.
Notice Period
In the 60 days after TAP filed its NOI, TAP had been hopeful that an alternative to litigation might emerge during that time, but TCEQ has failed to act.
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 that 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.
Federal Lawsuit
On March 11, 2010 TAP filed a federal lawsuit in the United States District Court for the Southern District of Texas, Corpus Christi Division, 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 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.
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 that:
• 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; and
• Ensures freshwater inflows to the San Antonio Bay system, especially during low flow conditions.
TAP will be providing updates on our legal actions and relevant events as they unfold. Join us to stay informed and to lend your voice.
