Posted on March 18, 2010 by Paul Seals
There is a fight brewing over the management of water resources in Texas. In a lawsuit that raises significant water rights implications, The Aransas Project (“TAP”), a non-profit corporation and an alliance of citizens, organizations, businesses and governmental entities, filed suit on March 10 in Corpus Christi against the Texas Commission on Environmental Quality (“TCEQ”) alleging that the state agency’s actions have harmed and threaten future harm to Whooping Cranes, the species that has pre-eminently exemplified and symbolized the wildlife conservation movement at the heart of the Endangered Species Act. According to the petition, 23 Whooping Cranes died at or adjacent to the Aransas National Wildlife Refuge (“ANWR”) in Texas over the winter of 2008-2009. After reviewing the allegations and the relief requests, one may wonder if this is a lawsuit to protect Whooping Cranes or is it part of a strategy to control the continued population growth and economic development in Texas through the control of water resources.
The Last Wild Flock
The Aransas-Wood Buffalo Whooping Crane flock winters at the ANWR along the Texas coast, northeast of Corpus Christi, and breeds in Canada’s Wood Buffalo National Park in the summer. It is the only natural wild flock remaining in the world. After decades of government protection in this country and in Canada, the flock has increased from 16 birds in the early 1940s to 270 in the spring of 2008. ANWR is located at or near the bays that are fed by freshwater flows of the Guadalupe and San Antonio Rivers into San Antonio Bay.
Is Permitted Freshwater Use the Problem?
TAP alleges that a critical reason for the Whooping Crane deaths was the lack of sufficient freshwater inflows, which adversely impact the Whooping Crane habitat by reducing the abundance of blue crabs and wolfberries, primary food sources, as well as the availability of drinkable water. These impacts are alleged to result in actual harm to the Whooping Cranes by significantly impairing their essential behavior and feeding patterns in violation of the Endangered Species Act.
TAP alleges that the TCEQ’s water rights regulations and practices constitute a prohibited taking in violation of Section 9 of the Endangered Species Act. TAP is seeking to enjoin the TCEQ from approving or processing new or pending water rights permits, to order the TCEQ to develop an approved Habitat Conservation Plan, to appoint a special master and to maintain court supervision and oversight in order to ensure sufficient freshwater flows into the Whooping Crane habitat.
Is There Another Agenda Here?
Reviewing the relief requested, TAP has targeted major water development projects previously announced in the Guadalupe River basin. In the petition, TAP has identified the water rights application of Guadalupe-Blanco River Authority to divert flood flows as well as the Authority’s contract to supply water from an existing water rights permit to Exelon Corporation for a new nuclear power plant. In addition, TAP is requesting, as part of the Habitat Conservation Plan, that existing water rights be reduced. Through this litigation, TAP has the potential to place future water resource development and existing water rights under the oversight of a special master and the federal judiciary.
A Complex Issue
Is the Whooping Crane being used to usurp Texas water rights? All parties and all Texans agree that the Whooping Crane should be protected. Will TAP be able to demonstrate the relationship of freshwater inflows and harm to the Whooping Crane? That nexus is in dispute. The Guadalupe-Blanco River Authority and the San Antonio River Authority commissioned a multi-year study to evaluate the relationship between freshwater inflows feeding San Antonio Bay and the health of Whooping Crane population at ANWR. The San Antonio Guadalupe Estuarine System Report concluded that the environmental factors that impact the Whooping Crane’s habitat are complex and not a simple correlation to freshwater flows and salinity.
TAP estimates that as of February 2010, the Whooping Crane flock numbers 263, down from an all-time high of 270 in the spring of 2008. Is this really about the Whooping Crane? If this strategy is successful, will it be used in other river basins with other endangered species?
To cite a well-worn Texas adage: “Whiskey is for drinking, water is for fighting!”