© 2013 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
A federal judge has ordered Texas environmental officials to prepare a water permitting plan for the Guadalupe and San Antonio rivers that brings the state back into compliance with the Endangered Species Act.
U.S. District Judge Janis Graham Jack has rejected a petition by Texas Attorney General Greg Abbott to stay her final judgment holding the Texas Commission on Environmental Quality is responsible for the deaths of 23 whooping cranes – or nearly one-tenth of the specie’s population – during the 2008-2009 drought.
In response to a lawsuit filed by the Aransas Project and a subsequent trial in December 2011, Judge Jack ruled TCEQ is banned from granting new water permits affecting the Guadalupe and San Antonio Rivers until the state comes up with a plan that will not harm whooping cranes.
The state AG’s office, in a written statement, said it plans to immediately appeal the decision to the U.S. Court of Appeals for the Fifth Circuit.
Jim Blackburn of the Houston environmental law firm Blackburn & Carter is the lead attorney for the Aransas Project, a nonprofit organization that seeks to preserve the lives of the endangered whooping cranes and improve water mismanagement of the Guadalupe River Basin.
“I think that any appeal to the Fifth Circuit is a very serious hurdle, both for the appealing party and for us,” he said. “We’re in for a very hard, well-contested proceeding ahead.”
Though Judge Jack denied the state’s motion to stay final judgment, she revised the injunctive relief to provide an exception for granting new water permits that are “necessary to protect the public’s health and safety,” according to the decision.
“If the ruling is not stayed or overturned by a federal appeals court, it could cause severe economic harm to the state and impose drastic federal regulations on the farms, ranches and communities along the Guadalupe and San Antonio rivers,” said a statement from the AG’s office.
Some legal experts who are following the case are concerned that it could create a retroactive effect for previous surface water permits if the Aransas Project prevails, thus impacting the way Texas permits and regulates its surface water on a broader scope.
Dallas environmental and water rights lawyer Mark McPherson said the case reaching the appeals court could be positive for the state because the legal issues of the case will be addressed by a federal appeals court viewed as more favorable toward state rights and pro-business interests.
“One of the biggest problems with the Endangered Species Act is that it says the protection of endangered species is the single most important priority,” he said. “In Texas when you have a drought – with all do respect – the highest priority are the people who live in Texas and particularly the people who lie in highly densely populated areas. It’s a health concern if they don’t have enough water to make their systems work.”
Austin environmentalist Ken Kramer said the case is important to Texas because the outcome could provide an opportunity to preserve an endangered species while also meeting the needs for the water system to support the state.
“The important thing about protecting the species is you’re protecting an ecosystem from which we all depend on,” said Kramer, the volunteer water resources chair of the Lone Star Chapter of the Sierra Club, a national environmental organization.
Blackburn said if the state decides to work toward the judge’s requests, he believes both parties could come to an agreeable solution.
“I think there is a lot of room for creativity and for innovation,” he said. “If the state wanted to, then we could work together to come up with an acceptable plan that would not be disruptive to the economy. We certainly stand ready to work with and assist the state in any way we can if they choose to move forward with the habitat conservation plan.”
The birds that died were part of the only self-sustaining wild whooping crane population in the world, according to the lawsuit. In the winter, the birds migrate to South Texas at the Aransas National Wildlife Refuge and surrounding estuarine areas that comprise of their critical winter habitat. The whooping cranes migrate up North in the spring.
The 23 deaths killed 8.5 percent of the migrating population. Another 34 birds that left in the spring of 2009 failed to return to Texas in the fall, the lawsuit said.
According to last week’s ruling, The Aransas Project petitioned the TCEQ for a water permit to require a certain amount of freshwater to remain instream in the Guadalupe and San Antonio river systems. TCEQ denied the permit request, and in March 2010, the Aransas Project filed a lawsuit against TCEQ, claiming the state violated Section 9 of the Endangered Species Act during the 2008-2009 winter, “causing an unlawful ‘take’ of AWB cranes,” according to the lawsuit.
The ruling also says the TCEQ’s water management practices combined with the drought created “hyper-saline” conditions, which limited the whooping cranes’ main food source, wolfberries and blue crabs.
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