Federal Judge: TCEQ mismanagement contributed to deaths of whooping cranes

By David Sikes

Corpus Christi Caller Times

Mismanagement of the Guadalupe River water contributed to the death of at least 23 whooping cranes during the winter of 2008-09 in violation of the Endangered Species Act, according to a lawsuit ruling by Senior U.S. District Judge Janis Jack.

In her March 11 ruling in favor of The Aransas Project, Jack declared the Texas Commission on Environmental Quality and its executive director continue to violate the Endangered Species Act through its water management practices, including its failure to monitor certain water uses and to exercise its authority to protect the world’s only naturally migrating whooping crane flock.

Jack has forbidden the commission from granting any new water permits for the Guadalupe and San Antoniorivers until the state provides reasonable assurances the cranes will not be further harmed.

Jack also ordered the Texas Commission on Environmental Quality to seek an incidental take permit and develop a Habitat Conservation Plan for the Guadalupe River estuary. Compiling such a plan can be a lengthy process involving the U.S. Fish & Wildlife Service. The plan must be designed to minimize and mitigate risks to the cranes while balancing the interests of other river users and water rights holders.

If, in the good faith execution of such an approved plan a crane dies, this would constitute a legal taking, or threat to their numbers, allowed by the incidental take permit.

The 124-page legal conclusion finds that The Aransas Project, a nonprofit group of local governments, advocacy groups and tourism-dependent businesses in the Coastal Bend, is entitled to recoup attorney fees as well as the cost of providing expert witnesses who testified during the eight-day civil trial in December 2011.

Jack’s ruling came three years to the day after the original filing of the lawsuit.

Officials from the Guadalupe-Blanco River Authority, one of several intervening parties siding with TCEQ in the lawsuit, said they will appeal the decision.

In a news release, TCEQ spokesman Terry Clawson wrote that the commission was disappointed but not surprised by the ruling. He reasserted “the TAP case is an unconstitutional attempt to use the Endangered Species Act as cover for rewriting the Texas Water Code.”

Jim Blackburn, lead counsel for TAP, declined to speculate on whether the ruling could have far reaching implications regarding environmental flows and the Texas Water Code. But conservation groups throughout the state suggest it indeed could influence future policy. For years conservation groups have called for a water policy designed to allow rivers and streams to nourish the state’s bays and estuaries, especially during drought.

Both the Sierra Club and the National Wildlife Federation say this ruling underscores the need for a more comprehensive approach to water planning and development that includes water for the environment.

Rich Beilfuss, president and chief operating officer of the International Crane Foundation, said this is not about people versus cranes or downstream needs versus upstream users.

“It’s about balancing the needs of everyone concerned and trying to figure out how to share the water we have,” Beilfuss said about Jack’s ruling, which he called a reasonable plan with potential applications throughout the world.

Blackburn said while Jack’s ruling is a landmark decision, its legal scope is limited to water management of the Guadalupe and San Antonio rivers as its affect on the endangered cranes.

TAP regional director Ron Outen said maintaining a healthy whooping crane flock means the nearby bays and estuary also would be healthier, which translates to healthier coastal economies.

“And the key to it all is river flow, which is heavily dependent on good water management,” Outen said. “This win is the first step, a big step, but there’s still lots of work to be done. We look forward to working with the state on this.”

Currently, state law prohibits TCEQ from issuing new permits for the purpose of allowing water to remain in a river or to flow freely into an estuary. Jack suggested that including environmental flows benefits as part of a water management process could eventually promote policies based on science to keep rivers wet.

Long before TAP filed its lawsuit, another environmental group challenged state law by requesting a water permit that would have allocated a sufficient amount of freshwater for environment needs in the San Marcos River. TCEQ denied the permit.

TAP’s lawsuit claimed state policy ignored federal law by causing the death of at least 23 cranes, in part, because the estuary was denied adequate freshwater to support a healthy population of blue crabs and wolfberries, two main components of the cranes’ diet.

Another 34 cranes that left Texas that spring failed to return from Canada the following winter. Some were presumed dead, possibly because they were emaciated from conditions near the refuge during their stay.

During the 2011 trial, TCEQ attorneys disputed or challenged the number of crane deaths during the winter of 2008-09, the method used in determining the deaths as well the credibility of the refuge’s former whooping crane coordinator, Tom Stehn, who helped make such determinations.

During the trial Jack appeared incredulous at such assertions, later going so far as to refer to TAP scientific witnesses, including Stehn, as world renown experts whose testimony was compelling and credible in her written summary.

By contrast Jack dedicated nearly two pages of her written judgment to berating the credibility of witnesses offered by TCEQ and the river authority. One witness, she wrote, admitted in court he had fabricated a statement about the whooping cranes ability to live without freshwater.

Other witness testimony, Jack wrote, lacked scientific support or was based on faulty information provided solely by GBRA the river authority. During an almost comical portion of the trial, Jack, a former nurse, repeatedly challenged a defense witness for associating a green fluid observed during a crane necropsy with gangrenous tissue. In conclusion, she wrote, that witnesses offered by GBRA the river authority were not credible and not reliable.

Following the trial, the defense team requested a reopening of the case to introduce additional evidence that challenged Stehn’s method of estimating the crane population. The evidence provided by the Fish and Wildlife Service involved a new abundance survey method touted as a more reliable way to estimate the population, compared with Stehn’s counts, which he’d used for 29 years.

Jack denied the request, denouncing TCEQ’s attempt to discredit Stehn and his methodology.

“No credible evidence casts doubt on the accuracy of Mr. Stehn’s peak abundance counts,” Jack wrote. “The abundance survey criticism of Mr. Stehn’s data is unsupported, and in turn, undermines the credibility of the abundance survey itself as there is no basis for its conclusions.”

Jack wrote that TCEQ had the authority and awareness to prevent threats to the endangered cranes but did nothing to avoid or curb the danger, according to the Endangered Species Act.