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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of wild whooping cranes and their habitat
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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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Wildfire Hazards Reduced in Wood Buffalo National Park

Parks Canada reports that there are currently 17 wildfires in Wood Buffalo National Park, nesting habitat of the endangered whooping cranes. Friends of the Wild Whoopers was advised that the fires are not a threat to the whooping cranes. Significant rain in parts of the park have helped fire suppression efforts. However, Parks Canada fire management personnel remain vigilant looking for new starts and will continue monitoring existing fires. 

Due to the reduced wildfire hazard, Fire Information Updates from Parks Canada will no longer be produced daily, but rather as the situation warrants. The latest Wood Buffalo National Park wildfire information is always available through the Fire Information Line at (867)872-0107.

To read the entire Fire Information Update report, click on following link:   FIU July 7 2014

The Wood Buffalo National Park Fire Status Map is available online at:  http://www.pc.gc.ca/pn-np/nt/woodbuffalo/plan/plan2/data2.aspx

 Fire on Wood Buffalo National Park Canada. photo by John McKinno

Fire on Wood Buffalo National Park Canada. photo by John McKinno

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of wild whooping cranes and their habitat
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Whooping Crane Expert’s Concerns about Court Decision

Tom Stehn, retired United States Whooping Crane Coordinator discussed his position concerning the recent 5th Circuit Court of Appeals ruling in The Aransas Project v. Shaw case with Friends of the Wild Whoopers (FOTWW) today.

Sixteen Whooping Cranes photo byMike-Umscheid
Sixteen Whooping Cranes photo byMike-Umscheid

As expected Tom Stehn has strong and serious concerns about the 5th Circuit’s ruling. And that’s to be expected. After all, he was the chief manager of the Aransas/Wood Buffalo population of whooping cranes for 29 years.

The case decided this week by the 5th Circuit involving water management in Texas and the Endangered Species Act was a major one for whooping crane organizations and other conservation groups. The Court ruled that the State of Texas water management agency was not liable for “take” of endangered whooping cranes on the drought- suffering Aransas National Wildlife Refuge during the winter of 2008-09. The 5th Circuit’s decision in The Aransas Project v. Shaw reversed a landmark victory for the environmental plaintiffs in the U.S. District Court, Southern Division of Texas, Corpus Christi Division District trial court.

The major issue in the case was whether Texas, by permitting and managing water uses under state law, had caused the deaths of endangered whooping cranes thus violating the ESA.

The U.S. District Court issued its “Memorandum Opinion and Verdict of the Court” on March 11, 2013. The lower court found that 23 cranes had died on the refuge during the 2008-09 winter, that their deaths were caused by habitat declines caused by low water levels in the Guadalupe Estuary (San Antonio Bay), and that Texas could have used its powers under state water law to prevent such low water levels. Thus, even though Texas itself was not the water user, it had violated the ESA prohibition on “take” of listed species. The District Court ordered Texas to seek an “incidental take permit,” by which the ESA allows limited harm to listed species caused by otherwise-lawful actions, but also provides certain protections for species and their habitats.

On appeal, the 5th Circuit held that the lower court had gotten it all wrong and turned on the issue of causation. While the 5th Circuit upheld the District trial court’s disputed finding that 23 cranes had died on the refuge, the appeals court found that the causal chain between Texas’ actions and the dead cranes was too attenuated, and the harm was not reasonably foreseeable.

FOTWW and many conservation groups were appalled and saddened by the 5th Circuit’s decision. Tom Stehn told FOTWW: “I’m hoping that in the future, Guadalupe-Blanco River Authority’s (“GBRA”) desire to build off-channel reservoirs will trigger the ESA and they at that point may have to write a Habitat Management Plan.  In the meantime, I assume more applications for water permit withdrawals from the Guadalupe River are being processed; a river that many conservationists feel is already over-appropriated.

Stehn expounded that, “The recent Fifth Circuit Court of Appeals ruling that the State was not liable for the whooping crane deaths in the 2008-09 winter is a blow to whooping crane recovery, but also has wider impacts.  The ruling potentially impacts the health of the Guadalupe River and the bays that rely on river inflows to be productive.”

Stehn continued, “In my opinion, the court’s reasoning was at least partially flawed.  The court concluded that the death of the 23 whooping cranes (8.5% of the flock) in the 2008-09 winter was a rare convergence of unforeseeable, unique events, a perfect storm scenario, that is unlikely to imminently happen again.  Data that I collected in my 29 years at the Aransas National Wildlife Refuge indicated that whooping crane die-offs have happened before.  For example, 11 whooping cranes (7.5% of the flock) had died in the 1990-91 winter when marsh salinities had been extremely high.   Back then, we didn’t know enough to make the connection between river inflows, blue crabs, and whooping crane health.  That connection was fully demonstrated in the recent court case, and the court ruling did not throw out that linkage.  More recently, I believe crane mortality was also unusually high in the 2011-12 winter, but that data was not collected after my retirement due to a change in the aerial method of counting the cranes where only a portion of the flock is surveyed and mortality is not documented. Future crane die-offs related to drought and insufficient inflows are foreseeable and will continue to occur.”

“The need to provide sufficient river inflows to keep our bays productive is just one of the issues facing the whooping crane population” advised Tom Stehn. He explainedheader1.jpg other potential problems stating that, “With the ongoing sea level rise forecast to reach more than 3 feet by the end of the century, all of the current whooping crane marshes will become too deep for the whooping cranes to use.  Also, as the climate warms and we no longer get sustained hard freezes, black mangrove normally killed by cold weather is moving north and will likely become the dominant plant over the entire Texas coast, replacing plants such as Carolina wolfberry that whoopers feed upon heavily every fall.  A species that loses its habitat is in for hard times.”

Stehn enlarged on the problems by describing: “The picture is also alarming in the crane’s migration corridor, where decreased rainfall amounts are expected to dry up stopover wetlands, and thousands of wind turbines and associated power lines are being built right next to whooping crane wetlands.  And illegal shootings of Aransas whooping cranes is still occurring; note the two instances of radio-tagged birds found dead in the last few winters.  Now is not the time for the Court to negate measures that would help the whooping crane.”

“For the whooping crane to survive, people need to remain vigilant and continue working to help the species” said Stehn. And he opined: “Yes, providing the needed inflows to keep our bays healthy and provide the crabs and wolfberries that the whooping cranes need to survive may very well mean people will have to become better water conservationists, but South Texans should be willing to support that choice.  Just observe the stream of cars late Friday afternoons pouring into the Coastal Bend for a weekend of fishing and nature appreciation.  If you want to see lots of birds and like to catch fish in San Antonio and Aransas Bays that both rely on river inflows, you should be disturbed by the court ruling.”

Tom Stehn concluded by recounting: “As stated perfectly in the Caller-Times editorial of July 2nd, I totally agree that the state of Texas ‘needs to develop a management plan in the birds’ best interest and enforce it’.  So far, Texas water managers and legislators have failed to provide minimum conservation flows essential for our priceless Texas rivers and bays.  To comply with the Endangered Species Act, the Guadalupe-Blanco River authority should voluntarily write a Habitat Conservation Plan for the whooping crane to provide the necessary inflows.  If the GBRA had been willing to do this, litigation would not have been needed in the first place since that had been the main judgment The Aransas Project had asked for in the litigation.   In summary, without a change of direction, how can we expect our bays and whooping cranes to remain healthy when new water rights continue to be granted from the Guadalupe River that many conservationists feel is already over-appropriated?”

 ***** FOTWW’s mission is to protect the Aransas/Wood Buffalo population
of wild whooping cranes and their habitat
. *****

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