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5th Circuit Opinion Favors Water Suppliers

State and local water planning agencies in Texas were handed a narrow victory by federal judges on Monday, vindicating their decisions to supply more water to cities and industries at the potential expense of wildlife.

State and local water planning agencies in Texas and across the drought-stricken West were handed a narrow victory by federal judges on Monday, vindicating their decisions to supply more water to cities and industries at the potential expense of endangered wildlife.

Reversing a lower court's decision, a three-judge panel on the 5th Circuit Court of Appeals said that the Texas Commission on Environmental Quality (TCEQ) and local river authorities could not be held responsible for the deaths of 23 endangered whooping cranes in a wildlife refuge next to San Antonio Bay during the winter months of late 2008 and early 2009. Advocates for the cranes had sued under the federal Endangered Species Act, arguing that the defendants’ diversion of freshwater for human use from the San Antonio and Guadalupe rivers had damaged the cranes’ food supply, leading to their deaths.

The case was being watched around the country: Agricultural lobbying groups in states like California and Mississippi had signed briefs backing the TCEQ, which was sued by the Aransas Project, a nonprofit devoted to protecting the cranes, in 2010. The lawsuit raised questions with potentially broad repercussions for water supply regulators and managers operating in areas with endangered species during a period of severe drought across much of the country.

The appeals court judges may have put some of those concerns to rest Monday. Though they threw out several of the defendants’ challenges, the judges ruled that the TCEQ could not have reasonably foreseen the ultimate effects of its actions, and that the chain of causation — from issuing water withdrawal permits to crane deaths — was too indirect.

“Because the deaths of the whooping cranes are too remote from TCEQ’s permitting withdrawal of water from the San Antonio and Guadalupe Rivers, the state defendants cannot be held liable for a take or for causing a take under the ESA,” the judges wrote. A "take" is the Endangered Species Act’s term for harming or killing a protected species.

Jim Blackburn, chief lawyer for the Aransas Project, had a mixed reaction to the decision. Though he was disappointed in the loss, he said he was pleased that the ruling was narrow and believes that the state will not be able to claim a lack of foreseeability in the future. “Arguably, the state is now on notice. … The state clearly knows now that its actions can kill whooping cranes.”

Blackburn said he will likely file an appeal to have the case re-heard by the full 5th Circuit court.

He is also considering filing similar lawsuits over endangered species in other freshwater-starved Texas bays.

The bulk of the judges’ reversal centered on whether the water regulators’ actions directly and foreseeably contributed to the harming or killing of cranes. They found that the TCEQ could not have foreseen the deaths, given that the crane population had grown for decades before and after the year in question, despite fluctuating environmental factors. 

“It’s going to be a very powerful precedent because it focuses on what it takes to prove that an activity causes take under the Endangered Species Act,” said Alan Glen, an Austin lawyer specializing in federal environmental law and was not involved with the case. “People from around the country will be looking at it.”

The judges also found that the district court erred in granting an injunction preventing the TCEQ from issuing water permits on the rivers in question (stayed on appeal by the 5th Circuit). The lower court, the judges wrote, should not have found a clear and immediate threat to the cranes’ health.

Though the defendants, which also included the Guadalupe-Blanco River Authority, appealed the district court ruling on the grounds that the crane census was based on dubious methodology, the appeals court threw out that challenge, saying there was no “firm conviction” that the number of deaths reported was inaccurate.

In a storied second act, whooping cranes have bounced back recently from near-extinction in the 1940s, and the majority of the roughly 500 now in existence spend their winters at the Aransas Refuge, along the Gulf Coast.

The ruling is likely to satisfy many conservatives in Texas, where antipathy toward federal laws being imposed on state officials often runs high.

U.S. District Judge Janis Graham Jack’s initial ruling was handed down in March 2013, though the appeals court allowed the TCEQ to resume issuing water supply permits that May, per Attorney General Greg Abbott’s request. Oral arguments in the appeal were heard in August.

Water suppliers had posited that upholding the district court’s decision would have had severe consequences for already strained water supplies in cities like New Braunfels and San Marcos.

“The state of Texas is pleased to have its position vindicated,” TCEQ Chairman Bryan Shaw said in a statement. “The initial decision of the district court would have had drastic implications for water availability throughout the state.”

This article originally appeared in The Texas Tribune at http://www.texastribune.org/2014/06/30/fifth-circuit-opinion-offers-victory-water-supplie/.

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