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State, river authorities win appeals ruling on whooping cranes

In an apparent win for state officials and river authorities, a federal appeals court Monday reversed a ruling that said Texas’ environmental agency is responsible for the deaths of 23 endangered whooping cranes about five years ago.

In 2013, a federal judge held that the Texas Commission on Environmental Quality failed to manage the waters of the Guadalupe River to ensure the cranes’ survival. That ruling threatened to upend water permitting in the Guadalupe and other basins, as river authorities balanced the sale of water to cities, industrial facilities and farmers with the water needs of fish and other wildlife.

Now three judges at the U.S. Fifth Circuit in New Orleans found that the lower court failed to adequately determine whether the TCEQ could have foreseen that its action would have led to the crane deaths.

“Nowhere does the court explain why the remote connection between water licensing, decisions to draw river water by hundreds of users, whooping crane habitat, and crane deaths that occurred during a year of extraordinary drought compels (Endangered Species Act) liability,” the judges wrote.

Pinpointing cause and imposing liability on the state in the face of natural and unrelated forces affecting the cranes’ environment “goes too far,” the judges wrote.

The whooping crane, the tallest bird in North America, known for its whooping call, is a federally listed endangered species.

An alliance of Gulf Coast environmental and business groups, led by a prominent South Texas family, had argued that the commission had allowed too much freshwater to be diverted from the Guadalupe River before it reached the bays where the whooping cranes winter. As a result, the alliance argued, saltwater levels increased, diminishing the number of blue crabs and wolfberries available for the whooping cranes to eat. The alliance filed suit in 2010 after 23 whooping crane deaths — about 8.5 percent of the flock — in the winter of 2008-09.

The earlier ruling spelled a tightening of water in the Guadalupe River Basin — which includes Kerrville, New Braunfels, San Marcos and Victoria.

It required the state to come up with a conservation plan for the whooping crane that could have included the reallocation of existing water-use rights in the basin.

The Fifth Circuit ruling opens the way to new water-sharing projects, said Bill West, general manager of the Guadalupe-Blanco River Authority.

It “removes a cloud over our water resource projects, and we will be working with our partners and the state to bring those projects to fruition,” he said.

By extension, the ruling also appears to give cover to other river authorities, including the Lower Colorado River Authority, as they make water supply decisions.

Jim Blackburn, the lawyer representing the Gulf Coast alliance, known as the Aransas Project, has also been looking to build a case that water cut-offs in the Colorado River basin could harm an endangered sea turtle.

On Monday, Blackburn sought to turn the reversal into a victory.

He said the federal appeals panel recognized cause-and-effect between state actions and endangerment of the species, even if it concluded the consequences were not foreseeable.

“Arguably it’s now foreseeable if it wasn’t at the time,” he said. “Every permit that’s going to be issued going forward will now be subject to this question of foreseeability.”

State environmental commission chairman Bryan Shaw said he was pleased to be “vindicated” by the appeals court.

“TCEQ remains committed to protecting the needs of the environment as part of its holistic evaluation of requests to appropriate state water,” he said.

State Attorney General Greg Abbott said the ruling “rejected an attempt to force Texas into a costly federal permitting regime, and affirmed that it is the state’s right and responsibility to manage its own natural resources.”

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