Texas water plans must consider endangered species

Melinda Taylor and Jeremy Brown, For the San Antonio Express-News, Opinion

July 7, 2014 | Updated: July 7, 2014 4:11pm

SAN ANTONIO — The 5th Circuit Court of Appeals ruled recently that Texas did not violate the Endangered Species Act, or ESA, through the operation of its surface water permitting program.

Texas was absolved in recent whooping crane deaths, but in the future, it will be forced to balance the needs of humans and the environment. Photo by Pat Sullivan, Associated Press

Texas was absolved in recent whooping crane deaths, but in the future, it will be forced to balance the needs of humans and the environment. Photo by
Pat Sullivan, Associated Press

The long-awaited opinion reverses a Corpus Christi district court decision holding that the Texas Commission on Environmental Quality caused the deaths of 23 endangered whooping cranes during the drought of 2008 and 2009.

The lower court had found the agency harmed the cranes indirectly by authorizing cities, farmers and river authorities to divert water from the San Antonio and Guadalupe river basins. The diversions reduced freshwater inflows into Aransas Bay, where the cranes spend their winters, increasing salinity levels and decreasing the wolf berries and blue crabs the birds depend on for food.

A coalition of landowners and environmental groups known as the Aransas Project accused the state of violating the ESA. The trial court agreed and enjoined the TCEQ from approving additional water withdrawals until it obtained a permit from the federal agency charged with protecting endangered species.

Had the appellate court affirmed, TCEQ would have faced the challenge of maintaining flows into Aransas Bay while respecting existing rights to surface water and working within a statutory framework that regards environmental flows as a secondary priority. With the 5th Circuit opinion, the agency has dodged a bullet — but only on the narrow issue of proximate cause.

As anyone who has ever heard about a butterfly flapping its wings knows, many factors can set a causal sequence into motion. Proximate cause is a legal concept providing that a person should only be held liable for that sequence if the outcome would have been reasonably foreseeable.

The 5th Circuit found the causal link between the TCEQ’s water permitting program and the cranes’ deaths too attenuated to satisfy the proximate cause requirement. The court cited multiple factors that affect crane habitat, including tides, drought and overfishing. Still, it did not reach the question of whether the state could ever be held liable for licensing third parties who cause harm to an endangered species.

If another state agency such as the Texas Department of Transportation wanted to construct a highway that would destroy habitat for a listed species, that agency would have to obtain a federal permit. On that point, the law is settled. More controversial is the idea that the ESA imposes vicarious liability on state agencies that issue permits to third parties that, in turn, harm a protected species.

The few courts that have considered the question have found that certain situations can give rise to vicarious liability.

The federal government is considering whether more than 20 aquatic species in Texas qualify for protection under the Endangered Species Act. Most of these species live in bodies of water far from proposed projects.

The sharpnose and smalleye shiners are exceptions, however. They occur in the upper Brazos River basin and, according to the U.S. Fish and Wildlife Service, the “primary” threat the species face is habitat loss and modification “resulting mainly from reservoir impoundments.” The shiners were proposed for listing last summer, with a final decision slated for this month. If an environmental group wished to challenge one of the proposed reservoirs under the ESA, proving proximate cause would not be difficult.

In its opinion, the 5th Circuit observed that “though the state interest is strong in terms of managing water use, so is the federal interest” in endangered species. Even though it won the case, the TCEQ will need to develop strategies that balance the needs of humans and the natural environment if it is to avoid future conflicts with the ESA and the rare species the law is intended to protect.

Melinda Taylor is executive director and Jeremy Brown is a research fellow at the Center for Global Energy, International Arbitration and Environmental Law at the University of Texas School of Law.

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Whooping Cranes’ Fate in Hands of Texas

Liz Smith, International Crane Foundation wrote a powerful article “Forum: Fate of the whooping crane falls into hands of the state …”. The article is in “Caller-Times” and Friends of the Wild Whoopers (FOTWW) received permission to place it on our web site for your convenience.

FOTWW would like to commend Liz Smith, a whooping crane conservation biologist with the International Crane Foundation, on her excellent editorial in today’s Caller.com. We agree 100% with Liz when she states that the “Fate of the whooping crane falls into the hands of the state”.

Liz also writes, “As a coastal scientist working with other professionals to deliver scientifically sound information to guide environmental decisions, I will continue to increase awareness that our system is at a tipping point. It is up to the citizens of Texas to ensure we don’t lose this coastal treasure.

Please let your representatives know that we need a change of attitude about water. Let’s keep this initiative at the forefront of our efforts to save our beautiful Texas coast for future Texans.”

FOTWW agrees, it is up to us, concerned citizens and lovers of these magnificent whooping cranes to keep this initiative at the forefront. Texas citizens, please write to your elected officials. Write op-eds or letters to the editors of newspapers in Texas. Let’s keep this in the forefront and be the voices of those who cannot speak for themselves, our beloved whooping cranes.

Below is Liz’s article as posted on Caller.com.

Forum: Fate of the whooping crane falls into hands of the state
POSTED: 3:04 AM, Jul 25, 2014
TAG: forums (/topic/forums)

The recent ruling by the Fifth Circuit Court of Appeals does not hold the state of Texas responsible for the fate of whooping cranes in the San Antonio Bay system. As Texans, we should insist that the state take that responsibility seriously. The future of our bays and estuaries hinges on responsible water management that values life and all water users throughout the river basin.

Whooping crane hunting for blue crab. Whooping cranes' fate in Texas' hand.

Whooping crane at Aransas National Wildlife Refuge. Photo courtesy of Kevin Sims

The whooping crane is a flagship for how we manage our waters. Whooping cranes number only about 300 individuals on their wintering grounds in Texas, and after 70 years of recovery from very near extinction their future remains completely dependent on the future of our coasts. The health of our San Antonio Bay system is intricately tied to both the return of Gulf waters through Cedar Bayou and the predictability of freshwater inflows from the Guadalupe and San Antonio river basin. Further misappropriations of flows, which resulted in the death of 8.5 percent of the crane’s population in 2008-2009, could result in the extinction of this
last remaining wild flock.

This places a huge responsibility on maintaining that estuarine system, not only for whooping cranes, but for the bounty of recreational fisheries, tourism and coastal enterprise it sustains.

The International Crane Foundation is one of the many organizations seriously concerned about the mismanagement of fresh water flowing into our coastal systems. We continue to work with all interested partners to find alternatives and viable solutions in our world of finite water availability, especially during drought conditions. Our efforts will not save our bays and estuaries, however, unless the state of Texas recognizes that the ultimate leadership on water management must come from the state.

As a coastal scientist working with other professionals to deliver scientifically sound information to guide environmental decisions, I will continue to increase awareness that our system is at a tipping point. It is up to the citizens of Texas to ensure we don’t lose this coastal treasure. Please let your representatives know that we need a change of attitude about water. Let’s keep this initiative at the forefront of our efforts to save our beautiful Texas coast for future Texans.

Elizabeth H. Smith, Ph.D. is a whooping crane conservation biologist with the International Crane Foundation.

Copyright 2014 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

 

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The Crane Track: Whooping Crane Migration Story

School is out for the summer and it’s time to get kids to read books. Friends of the Wild Whoopers recommends “The Crane Track: Whooping Cranes’ Migration … A Tale of Survival” by Gene Steffen.

The Crane Track Whooping Cranes' Migration...book cover

The Crane Track…book cover

The Crane Track uses factual information to build an interesting story. It’s about a two adult whooping cranes and their young chick, Leki. It describes some scary events during their time in the Wood Buffalo nesting area. And then it follows them while they make a 2,400 migration from the Northwest Territories in Canada to Texas.

Leki, the young whooping crane has no idea that a spectacular journey is about to begin. He lives with his parents, Toluki and Karla, in the Northwest Territories of Canada. Leki has had many adventures there, like the day he ran across wild wolves! Still, his biggest adventure is yet to come as his parents prepare for their annual October migration.

Every year, the whooping cranes travel south to warmer climates for the winter. Toluki and Karla plan to take young Leki 2,400 miles, all the way from their home in Canada to a winter resting place near the Gulf of Mexico. The path they take is called “the crane track,” and it is a journey filled with wild weather and hungry hunters.

Whooping cranes are graceful creatures with white feathers and up to an eight-foot wingspan. Once almost extinct, there are now 304 wild whooping cranes in the population that migrates from Wood Buffalo National Park, Canada to Aransas National Wildlife Refuge, Texas. All whoopers in this population travel the same path as Leki and his parents. Nature is a carefully balanced, beautiful machine. It’s up to us to protect the path of the cranes’ migratory journey. So is little Leki up for the trip?

Whooping cranes on Texas coast where sea level rise may alter habitat conditions.

Whooping cranes on Texas coast where sea level rise may alter habitat conditions.

The book follows the Track the cranes make twice each year and was featured on a National Geographic special, Flight of the Whooping Crane. The author, Gene Steffen, was the pilot during the making of that film. This is a great story to teach children about geography, endangered species, migration and the general wonder of our natural environment.

One source for the book is Amazon.com

 

  

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of wild whooping cranes and their habitat
. *****

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