Endangered Species Act (ESA) protections allowed the world's only self-sustaining, wild Whooping Crane population, known as the "AWB" flock, to increase from 15 birds in the 1940s to around 250 today. The cranes winter on South Texas' Aransas National Wildlife Refuge (the Refuge) and surrounding estuaries each year. This area comprises the AWB cranes' critical habitat. The San Antonio and Guadalupe Rivers supply the Refuge with freshwater that is critical to the cranes' staple diet — blue crabs and wolfberries. A federal judge's ruling, delivered on Monday, March 11, 2013, in the Southern District of Texas, may have significant implications for how much freshwater must be set aside for environmental purposes in the Refuge and surrounding estuaries. The ruling has significant implications for other water rights holders in the State of Texas because it could lead to curtailment of junior and senior water rights to increase environmental flows.
In The Aransas Project v. Shaw, Senior United States District Judge Janis Graham Jack held that the Texas Commission on Environmental Quality's (TCEQ) water management practices caused a "take" of the endangered AWB cranes in violation of the ESA and ordered the TCEQ to seek an Incidental Take Permit (ITP) under Section 10 of the ESA, and prepare a corresponding Habitat Conservation Plan (HCP) that will balance the interests of Texas water users with the need to protect the whooping cranes' critical habitat.1
The dispute arose when The Aransas Project (TAP), a non-profit corporation organized by environmentalists, local coastal business owners, and bird enthusiasts, petitioned the TCEQ, the state agency responsible for regulating freshwater capture and use, for a water permit to require a certain amount of freshwater to remain in the Guadalupe and San Antonio Rivers to ensure that sufficient freshwater reaches the Refuge and surrounding estuaries to maintain the critical habitat of the AWB cranes. The TCEQ denied TAP's permit application. On March 10, 2010, TAP filed a lawsuit alleging that TCEQ violated Section 9 of the ESA by failing to properly manage freshwater inflows to the relevant estuaries during the 2008-2009 winters, causing an unlawful "take" of AWB cranes. More specifically, TAP alleged that the TCEQ's water management practices, combined with the severe Texas drought in 2008, drastically modified the cranes' critical habitat by making it hyper-saline. TAP argued that the hyper-saline conditions caused a reduction in the availability of blue crabs, wolfberries, and fresh drinking water. The lack of food and freshwater allegedly caused the cranes to become emaciated and engage in stress behavior. This adverse modification of the cranes' critical habitat and behavior, TAP alleged, effectively caused the death of at least 23 cranes that winter season.
In response to the TCEQ's jurisdictional challenge, the court found that it should hear the case because (1) the State's regulatory scheme for environmental flows was ineffective, and (2) the TCEQ failed to manage surface waters in a manner that protects the health and survival of the AWB cranes. First, the TCEQ argued that the court should abstain because Texas' Senate Bill 3 provides a comprehensive regulatory framework to address the State's surface water flows.2 The court rejected the argument, holding that the legislation lacks "teeth" to ensure that recommended amounts of freshwater remain instream, fails to address existing permits, and specifically excludes the inflow needs of the bays and estuaries in times of water shortages.3 Second, the court held that despite having the authority and responsibility to manage water diversions, the TCEQ mismanaged the State's surface waters by refusing to issue a permit for freshwater inflow to protect the winter habitat of the AWB flock.4
The TCEQ further argued that the water diversions at issue were mandated by Texas' priority water rights system, in which older water rights holders have superior rights to water.5 That argument failed, too, because, in the court's opinion, the TCEQ's emergency powers authorize it to modify or amend existing water rights, delay, or deny issuance of new permits, access and evaluate Domestic and Livestock (D&L) usage, and take any other action necessary in times of emergencies, including drought, to ensure that the necessary freshwater inflows reach the Refuge and the AWB cranes.6 Judge Jack found that the TCEQ failed to exercise this authority to take steps to protect the AWB flock and, effectively, "choked" the AWB's estuaries.7 Because the ESA prohibits a "take" and prohibits a person to "cause" a take,8 the court found the TCEQ liable for a "take" of AWB cranes.9
The case was tried over an eight-day period in December 2011. The court's opinion hinged on expert testimony. The court found TAP's expert witnesses credible.10 The court was far more critical of the expert testimony provided by the TCEQ and intervenors. The court cited TAP's expert testimony in finding that (1) the TCEQ's water diversions reduce freshwater inflows to the Refuge and increase salinities in the San Antonio Bay ecosystem;11 (2) higher salinities resulted in decreased freshwater availability, along with decreased blue crab and wolfberry abundance;12 (3) Whooping Cranes require freshwater, wolfberry, and blue crab to survive;13 (4) the AWB flock suffered increased mortality as a direct result of diverted freshwater, leading to the deaths of at least 23 cranes during the 2008-2009 winter;14 (5) TCEQ's water management practices altered the salinity of San Antonio Bay and the designated critical habitat of the AWB flock;15 and (6) TCEQ failed to ensure the survival of the critical habitat of the AWB cranes.16
The court's order prohibits the State from granting new water permits on the Guadalupe or San Antonio Rivers until it can prove that the permits will not lead to crane deaths.17 In addition, the ruling requires the TCEQ to seek an ITP within 30 days of the date of the order, which will lead to development of a HCP.18 The HCP will require the TCEQ to address freshwater flows, and reduce and mitigate adverse impacts of water diversions and related practices on the AWB crane population.19
Not only did the court enjoin the State from granting new water permits in the basin, it also attempts to impose a freshwater inflow level and stricter oversight of water set aside for environmental uses.20 In its additional findings of fact, the court found that, in times of drought and other habitat stressors, the estuaries may require up to 1.3 million acre-feet of freshwater inflows beginning well in advance of the AWB cranes' arrival in October to prevent the salinity of the habitat from exceeding threatening levels.21 Indeed, the opinion states that TCEQ has authority to regulate diversions, oversee riparian withdrawals, secure water returns to the rivers, release water from reservoirs, cancel unused water rights, monitor D&L water use, or take other actions that would increase water flows with a purpose to protect the AWB flock.22 If imposed judicially or administratively in the HCP, these requirements would not only strain an already limited TCEQ budget, but also have serious implications for Texas water rights holders, agriculturists, and developers.
An appeal is anticipated in this case. We will continue to follow this issue of vital importance to Texas water users and will provide additional analysis in the near future.
1 No. 2:10-cv-075, slip op. at 121–22 (S.D.
Tex. Mar. 11, 2013). An ITP may be issued to private, non-federal
entities undertaking otherwise lawful projects that might result in
the future take of an endangered or threatened species. 16 U.S.C.
§ 1539(a). Requirements for an ITP application
include preparation by the applicant of a HCP. Id. at
§ 1539(b). A HCP is a planning document that ensures
that the anticipated take of a listed species will be minimized or
mitigated by conserving the habitat upon which the species depend,
thereby contributing to the recovery of the species as a
2 Aransas Project, No. 2:10-cv-075, slip op. at 23.
3 Id. at 27.
4 Id. at 32.
5 Id. at 34.
6 Id. at 38–39.
7 Id. at 39.
8 16 U.S.C. §§ 1538(a)(1)(B), (C); 1538(g).
9 Aransas Project, No. 2:10-cv-075, slip op. at 121.
10 Id. at 43.
11 Id. at 48.
12 Id. at 62.
13 Id. at 109.
14 Id. at 63, 78.
15 Id. at 109.
17 Id. at 122.
19 Id. at 121.
20 Id. at 111.
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