Texas Told Not to Issue Water Permits That Hurt Cranes

By Laurel Brubaker Calkins - Mar 12, 2013 12:04 AM CT

Texas was ordered to temporarily stop issuing new water permits for a river system that supplies dozens of Central Texas cities, power generators and petrochemical plants to ensure enough water reaches the last migratory flock of endangered whooping cranes.

U.S. District Judge Janis Graham Jack in Corpus Christi, Texas, yesterday blocked state regulators from approving new permits for the Guadalupe, San Antonio or Blanco rivers “until the state of Texas provides reasonable assurances to the court that such permits will not take whooping cranes in violation of the Endangered Species Act.”
Jack said in her ruling that the Texas Commission on Environmental Quality, or TCEQ, which grants water permits in the state, violated federal wildlife protections by failing to monitor how much water cities and industrial users took from the rivers during droughts.

According to evidence at a 2011 trial, so much water was siphoned from the rivers during the 2009 drought that 23 birds, or 8.5 percent of the Texas whooping crane flock, died because insufficient freshwater flowed into the coastal marsh where the birds spend winter.
The five-foot-tall whooping crane was believed to be extinct until a flock of 15 survivors was found on an isolated stretch of Texas coastal marsh in the 1940s. There are about 500 whooping cranes alive today, according to trial evidence, with a flock of about 250 birds that migrates between Texas and Canada. That flock is the only self-sustaining wild population.

Emergency Powers

While regulators’ claimed that “their hands were tied” by the 1913 Texas Water Code that grants water rights on a first- come, first-served basis, the evidence, “most of it from TCEQ officials” demonstrated that regulators could have used emergency powers to protect the flock, Jack said.
“Indeed, the TCEQ has emergency authority to do anything that is necessary or appropriate to carry out duties and responsibilities, and this could extend to the protection of bays and wildlife,” Jack said in her 124-page ruling.
Jim Blackburn, the lead attorney for the group suing to protect the cranes, and Jerry Strickland, a spokesman for the Texas Attorney General’s office, didn’t immediately respond to requests after regular business hours seeking comment on the ruling.
“The opinion is wrong on the facts and the law, and we intend to appeal,” Bill West, general manager of the Guadalupe- Blanco River Authority, said in an e-mail. The authority sells water rights along much of the river channel.

Wildlife Refuge

Environmentalists and coastal tourism and business interests sued state water regulators in 2010 after studies found that reduced river flow into the marsh depleted drinking water supplies and stocks of blue crabs and wolfberries that the cranes feed on at the Aransas Wildlife Refuge about 175 miles southwest of Houston.

The cranes share that coastline with the world’s largest concentration of refineries and petrochemical plants, which stretches from the refuge eastward to the Louisiana border. Dow Chemical Co. (DOW)’s Seadrift plant, one of the largest water users on the river system, sits across the bay from the refuge.

Further inland, the same river system supplies drinking water and hydroelectric power to cities including San Antonio. The Texas Chemical Council, which represents more than 60 plants -– all of them dependent on river water -- joined the lawsuit to protect the rights of industrial water users.
Water regulators said during the trial that a win by environmentalists could cut the water supply for industrial and municipal users by 50 percent in the watershed. They warned that such a ruling could be used to upend water rights on other Texas river systems.

The case is The Aransas Project v Bryan Shaw, 2:10-cv-0075, U.S. District Court, Southern District of Texas (Corpus Christi).

To contact the reporter on the story: Laurel Brubaker Calkins in Houston at laurel@calkins.us.com.
To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net