Posted on December 26, 2011 by Molly Cagle
Lawyers trying The Aransas Project vs. Bryan Shaw, Chairman of the Texas Commission on Environmental Quality, et al. Civ. Action No. 2:10-cv-00075, Southern District of Texas, Corpus Christi Division, are wrapping up their second week of trial in Judge Janis Graham Jack’s court in Corpus Christi, Texas. It looks like they will be spending at least a part of next week in trial as well.
For those who are interested in citizen suit Endangered Species Act cases, or the interface of the ESA and the administration of water rights, the case is a must watch. Plus, unlike many Texas ESA matters which are focused on obscure and unattractive bugs and salamanders, this one involves the mighty and beautiful whooping crane.
Plaintiffs’ case, noticed in December, 2009 and filed in March of 2010 (after a dry 2009 in Texas), claims that the TCEQ’s administration of water rights on the Guadalupe and San Antonio Rivers is causing a “take” of whooping cranes. According to the Plaintiff’s, the whooping cranes need plenty of freshwater, wolfberries and blue crabs to make it through the winter at the Aransas Pass Wildlife Refuge. They claim that the lack of freshwater flows to the bay adjacent to the Refuge, has caused whooping cranes to die either directly from starvation, or due to off-Refuge dangers after the whooping cranes leave the Refuge in search of food and water. Because the administration of water rights on the Guadalupe and San Antonio rivers is managed by TCEQ strictly in accordance with the Texas Water Code, the lawsuit essentially attacks Texas’ current water rights regime.
Regardless of the facts alleged and defenses offered, Texas is currently in an extreme drought, expected to continue through the whooping crane’s wintering period at the Refuge. Additionally, USFW has proposed to add a variety of mussels that habitat other Texas Rivers on the ESA. The outcome of the TAP case, the continuation of the current extreme drought and the action of USFW on listing new species in other Texas Rivers could lead to a wholesale attack on Texas’ water rights management in the near future.