Texas Commission on Environmental Quality Held Liable for Whooping Crane Deaths in Violation of ESA

After an unusual eight day bench trial, the United States District Court for the Southern District of Texas held (pdf) State officials in Texas violated the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana).  In holding for plaintiff The Aransas Project, the court found that defendants’ actions, inactions, and refusal to act proximately caused unlawful take of at least 23 whooping cranes during the winter of 2008-09.  The court enjoined the State from granting new water permits affecting the Guadalupe or San Antonio Rivers and required the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the ESA.

Defendants in the case are officials with the Texas Commission on Environmental Quality (TCEQ) and the South Texas Watermaster.  Plaintiffs alleged that defendants failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008-2009 winter, which resulted in take of the species.  The affected whooping crane population is the only self-sustaining, wild whooping crane population.

The State of Texas owns surface water within the State, including water in the Guadalupe or San Antonio Rivers.  Through a permit process, the State can grant permit applicants the right to use water from specified surface water sources.  The State argued that its first-in-time, first-in-right priority system foreclosed its ability to take steps to protect whooping cranes.  The court rejected this argument, holding that TCEQ has the authority, power, and responsibility to manage water diversions, and that the ESA requires that such management take into account the health and survival of whooping cranes.

With respect to the cause of death of the whooping cranes, the court considered the testimony of more than 25 expert witnesses.  Importantly, the court found the testimony of plaintiffs’ witnesses to be “compelling and credible.”  In contrast, the court found that defendants’ testimony was based on limited experience and insignificant knowledge, relied on a subset of the data in some cases, and was “made up” in other cases.

We previously reported on the court’s decision denying cross motions for summary judgment in the case here.

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