The Fifth Circuit Court of Appeals last week reversed a lower court decision that mandated freshwater inflows to whooping crane habitat on the Texas coast. The three-judge panel held that legal aspects of the Endangered Species Act were misapplied in the lower court decision, when it found that the Texas Commission on Environmental Quality was liable for the deaths of 23 of the cranes in 2008-09.
The case was brought in March 2010 by The Aransas Project, a nonprofit coalition of municipalities, businesses and conservation organizations. The coalition contended that the TCEQ allowed too much water to be removed from the Guadalupe and San Antonio rivers, which caused bay salinity to increase beyond what an average drought would cause. Those actions resulted in reduced fresh drinking water and food supply for the cranes and ultimately caused the deaths, the coalition claimed.
Fewer than 300 of the endangered cranes remain in the wild.
In the original ruling, U.S. District Court Judge Janis Jack stated that TCEQ violated the Endangered Species Act through its water management practices, including not exercising available emergency powers to protect the cranes. The court ordered TCEQ to stop granting new water use permits for the rivers until it could provide reasonable assurances that the permits would not result in harm to the cranes. The TCEQ was directed to seek an Incidental Take Permit from the U.S. Fish and Wildlife Service, which requires development of a Habitat Conservation Plan, outlining conservation measures designed to minimize and mitigate harm to the endangered species.
The Court of Appeals found that The Aransas Project presented compelling evidence of as many as 23 crane deaths in 2008-09, and that the deaths were related to lack of essential food, water and habitat requirements. However, the court ruled that the deaths could not have been foreseen, and that the TCEQ can’t be held liable because its authorization of water use was too attenuated from the crane deaths.
