Texas Commission on Environmental Quality Archives

Whooping Crane group challenges Texas river water interests

March 16, 2017August 15, 2014 by Admin

Friends of the Wild Whoopers (FOTWW) is issuing a challenge to legal minds and officials to offer solutions to resolve river flow dilemmas in Texas to save endangered whooping cranes. Whooping cranes are the symbol of conservation in North America. These beautiful birds stand 5 feet tall and are treasures to many thousands of people in the U.S. and other countries. Yet these magnificent birds are facing increasing threats. FOTWW wants to know if law firms or government agencies informed about the issue care enough to lend a helping hand?

FOTWW would appreciate receiving legally binding recommendations to help in this cause. Several law firms that wrote their thoughts about the“The Aransas Project v. Shaw” court suit should certainly have ideas for a reasonable solution/compromise. Please email your thoughts to: admin@FOTWW.org or fill out our contact form. With your permission we would post your recommendations on our web site: https://friendsofthewildwhoopers.org/ . Honest, considerate debate will be appreciated. This request for recommendations has no connection to the ongoing legal appeal Aransas Project v. Shaw. For background on the situation, please continue reading.

**Two whooping cranes feeding in wetland.**

Approximately 304 endangered whooping cranes currently make their fall and winter home on the Aransas National Wildlife Refuge on the Texas coast. Every spring they migrate 2,500 miles north to Wood Buffalo National Park, Canada where they nest and rear their young chicks. Whooping cranes have been following this schedule for centuries.

When Europeans came to North America the situation began to change for whooping cranes. The new settlers had fire arms and killed the whoopers for food more effectively than the Indians before them. Even worse, settlers drained wetland sites used by the cranes as habitat. Millions of acres of whooper habitat were destroyed and converted to cities and agricultural fields.

As a result of man’s deeds whooping crane populations plummeted. They were eradicated from their habitats along the Atlantic coast, much of the Gulf of Mexico coast and vast areas of the northern United States and Canadian prairies.

In the early 1940’s, their numbers declined to a low of 15 on the Texas coast and 6 on the Louisiana coast. The last crane in Louisiana was captured in 1950 and relocated to Aransas Refuge where it died a year later. Then only 15 wild whooping cranes remained. These birds were the last of the only remaining self-sustaining flock of whooping cranes on the planet. After recognizing that whooping cranes were about to become extinct conservation interests worked with the U.S. Fish and Wildlife Service to reverse the downward trend. Their efforts were successful and the whooper population has slowly increased over the past 70 years to approximately 304 birds.

Fresh water is necessary for a healthy environment in the Aransas National Wildlife Refuge complex. photo by Jim Foster

Unfortunately, alarming signs of trouble are once again threatening whooping cranes. As the U.S. human population has increased more habitats used by the cranes has been destroyed and degraded. And now the huge human population growth and development in Texas is using ever increasing quantities of fresh water.

**There are 7,400 dams in Texas. 4,700 of these dams create reservoirs having a surface area greater than 5 acres. Corps of Engineers map. Click on the map to enlarge.**

According to the U.S. Army Corps of Engineers, there are 7,400 dams in Texas. A total of 4,700 of these dams create reservoirs having a surface area greater than 5 acres. The volume of the 4,700 – 5 acre or larger lakes/reservoirs totals 1,988,801,388 acre-feet and a surface area of 2,269,900 acres. These lakes/reservoirs have many benefits but they do reduce the natural stream flows reaching estuaries and have adverse impacts on these important areas.

Less and less fresh water is being allowed to flow downstream into estuaries along the gulf coast. The inflows of fresh water mixing with sea water provides high levels of nutrients in both the water column and sediment, making estuaries among the most productive natural habitats in the world. With reduced inflows of fresh river waters however, estuaries are suffering.

Healthy estuaries associated with San Antonio Bay, Matagorda Bay and Copana Bay within the Aransas Refuge complex are essential to whooping cranes. Estuaries along this area of the coast produce the foods for whooping cranes and numerous other species. Without the proper mix of fresh water and salt water, life in the estuaries declines to a point that wild critters depending on the normal situation starve or become unhealthy and do not reproduce.

FOTWW requests that individuals, law firms and agency officials offer their advice for legal solutions/compromise to assure that Texas Commission on Environmental Quality adopts and enforces appropriate environmental flow standards for the Guadalupe and San Antonio River basins. This is essential in order for the San Antonio Bay system to adequately support a sound ecological environment to the maximum extent reasonable considering other public interests and other relevant factors. Also there is a need to establish an amount of unappropriated water, if available, to be set aside to satisfy the environmental flow standards to the maximum extent reasonable when considering human water needs.

by Chester McConnell, FOTWW

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

friendsofthewildwhoopers.org

Texas water plans must consider endangered species

July 28, 2014July 28, 2014 by Admin

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

friendsofthewildwhoopers.org

Don’t mess with Texas’ Big Cranes

July 15, 2014 by Admin

Originally published by the Houston Chronicle.
July 11, 2014 – Updated: July 14, 2014 4:00pm

Leadership needed to spearhead protection of the state’s environment and wildlife.

Texas Whooping Cranes An adult whooping crane feeds on a blue crab in a shallow marsh at the Aransas National Wildlife Refuge near Rockport, Texas. Photo Credit: Kathy Adams Clark Restricted use. Photo: Kathy Adams Clark / Kathy Adams Clark/KAC Productions — An adult whooping crane feeds on a blue crab in a shallow marsh at the Aransas National Wildlife Refuge near Rockport, Texas. Photo Credit: Kathy Adams Clark

Imagine this conversation 50 years from now when a docent at the Houston Museum of Natural Science walks visitors through the ornithology collection.

“This is the passenger pigeon, which became extinct in the 20th century because of mass deforestation, disease and competition for food. Next, children, we have the whooping crane, one of the most majestic birds to ever inhabit North America. It became extinct in the early 21st century because no one would tell commerce and lobbyists that they would have to use less water. No one demanded innovation.”

Texas Whooping Cranes Whooping cranes are five-feet tall with a seven to eight-foot wingspan. Roughly 600 whooping cranes winter at the Aransas National Wildlife Refuge near Rockport Texas. Photo Credit: Kathy Adams Clark. Restricted use. Photo: Kathy Adams Clark / Kathy Adams Clark/KAC Productions — Whooping cranes are five-feet tall with a seven to eight-foot wingspan. Roughly 300 whooping cranes winter at the Aransas National Wildlife Refuge near Rockport Texas. Photo Credit: Kathy Adams Clark.

The extinction scenario for the most famous avian residents of the Texas coast is not farfetched. And anyone who has marveled at the majesty of the 5-foot-tall birds foraging for blue crabs in their wintering grounds at the Aransas National Wildlife Refuge near Rockport has to be saddened by the June 30 ruling from the 5th U.S. Circuit Court of Appeals. A three-judge panel said that U.S. District Court Judge Janis Jack abused discretion in finding that 23 cranes had died because of a disruption to their habitat.

In The Aransas Project v. Shaw, plaintiffs were seeking enforcement of the Endangered Species Act. The lower court found that the Texas Commission on Environmental Quality was responsible for the deaths because it issued permits that ultimately withheld water that would lower the salinity levels in Aransas Bay. Water that’s too salty is not conducive for crabs and wolfberries, two of the cranes’ staple foods. The circuit court overturned the lower court’s ruling and appeals are expected.

Instead of again turning to federal courts to solve a Texas dispute, it is time for our Legislature to show leadership. And this fix is one that will not require a dime of taxpayer money. We need a leader to propose and ensure the implementation of laws that restrict water usage that has a negative impact on the cranes. We need education campaigns and mandates about smart water conservation. We need to tap our new water slush fund to save the birds. And, perhaps most important, we need an economic analysis of water pricing in the state.

If we charged the right price instead of giving the resource away, consumers and industry would not only act smarter, we might be able to fund technology that would keep important bay areas at the correct salinity levels, benefitting birds and business.

Most of all, we need to create an environment in Texas where the view of water isn’t a gushing tap or a resource that exists to fill recreational lakes. We must think of entire ecologies. And when we say with pride, “Don’t Mess with Texas,” we should be sure we’re not messing with something thoroughly Texas – the whooping crane.

To read original editorial on the Chronicle’s website, click here.

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

friendsofthewildwhoopers.org

Whooping Crane Expert’s Concerns about Court Decision

March 11, 2017July 3, 2014 by Admin

Tom Stehn, retired United States Whooping Crane Coordinator discussed his position concerning the recent 5^th 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

As expected Tom Stehn has strong and serious concerns about the 5^th 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 5^th 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 5^th 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 explained 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 2^nd, 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. *****

friendsofthewildwhoopers.org