Thursday, September 18, 2014




Court calls for balance in Guadalupe River Basin

By BY JIM BLACKBURN
March 23, 2013 at 3:04 p.m.
Updated March 22, 2013 at 10:23 p.m.

Jim Blackburn

A recent decision by a federal court in Corpus Christi simply reinforces what everyone in Victoria and up and down the Guadalupe River Basin already knows - we need a balanced, sustainable water management plan for the Guadalupe River.

The case that I refer to is The Aransas Project v. Shaw, a case brought by my client, The Aransas Project (TAP). TAP filed this suit because in 2008-09, inflows to San Antonio Bay dropped too low to maintain a proper ecological balance. The result was the deaths of at least 23 endangered whooping cranes wintering at the Aransas National Wildlife Refuge. They died because the bays became too salty for their major food source, the blue crab. Whooping cranes are the perfect indicator species to define the health of the Guadalupe River Basin and bay system. Few speckled trout were caught that year. The bay was essentially dead, as was the commercial and recreational fishing economy and real estate sales. As the crane goes, so goes the economy of our coastal communities.

On March 11, the United States District Court for the Southern District of Texas ruled that the water management practices of officials of the Texas Commission on Environmental Quality (TCEQ) resulted in the deaths of these cranes, and therefore violated the federal Endangered Species Act. Judge Janis Graham Jack wrote an exhaustive decision that provided great detail and insight into the sworn scientific testimony presented at trial. She concluded her 124-page opinion by ordering the TCEQ defendants to prepare what is known as a "Habitat Conservation Plan."

A Habitat Conservation Plan (HCP) is simply the formal name for a plan that will balance the needs of all stakeholders in the basin, contrary to any alarmist reactions to this decision. The judge's order has no immediate impact on any specific users in the basin - it specifically allows any actions to protect the public health and welfare. As a state, we can continue to stick our head in the sand or we can get down to the real work of developing a sustainable water management plan for the entire basin that balances the needs of all who depend on the Guadalupe River, including municipalities, farmers, industry, coastal economies and our bays and estuaries.

TAP urges that this decision provides an excellent opportunity for the state of Texas to get right with San Antonio Bay and the whooping crane. After a full trial of these issues, the court found that the state's current regulatory scheme for environmental flows lacks teeth and specifically does not provide for freshwater inflows to our bays when they are most needed - in times of drought. The court also found that TCEQ has extensive authority that was given to it by the Texas Legislature that has never been fully utilized. The TCEQ has both the power and the authority to address this issue if it wishes to. We urge that it should use this authority in a positive manner.

At trial, the expert scientific testimony established that the critical period for inflows to the bays to maintain a healthy balance is from July to December. If inflows are sufficiently high during this period, the crabs, the bay and the cranes should do well. The key is to keep the salinity below 25 parts per thousand in the critical habitat of the whooping crane in San Antonio Bay near Aransas National Wildlife Refuge. The HCP will need to include safeguards to make sure that this freshwater reaches the bay, and there are many ways to accomplish that in a balanced manner.

The current situation with regard to freshwater inflows to San Antonio Bay is not an insoluble problem. There are solutions. There are options. All it takes is good will, creativity and sound thinking - all of which we have here in Texas.

Rather than dragging its heels with lengthy appeals and the hefty price tag that goes with them, Texas should get to work on creative and honest approaches to address this problem.

The demands of a growing state require balance. The Guadalupe River is important. The Texas coast is important. Water for people and industry is important. The whooping crane is important. But we cannot solve this problem by pretending it does not exist.

We have a shared problem. We need a shared solution.

Jim Blackburn is lead counsel for The Aransas Project (TAP). TAP is 501(c)(3) nonprofit organization that brings together an alliance of municipalities, businesses, organizations and citizens who want responsible water management of the Guadalupe River Basin to ensure freshwater flows to the bays and estuaries that it supports.

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