Environmentalists cheer whooping crane ruling

Jessica Priest By Jessica Priest

March 12, 2013 at 11 p.m.
Updated March 12, 2013 at 10:13 p.m.

Texas environmentalists applauded Tuesday a federal judge's decision that they say will help a fledging group of endangered whooping cranes survive.

Senior U.S. District Judge Janis Graham Jack said in a 124-page opinion Monday that the Texas Commission on Environmental Quality violated portions of the Endangered Species Act after its management of the rivers that feed the San Antonio and Aransas bays caused the salinity to rise.

The saltier water hurt the blue crab and wolfberry supply, the cranes' primary food source, as well as diminished the cranes' water supply. Jack said that contributed to 23 of the cranes' deaths while they were wintering on the Aransas National Wildlife Refuge during a drought from 2008-09.

Jack ordered the state agency to refrain from issuing any other water permits until all the stakeholders could craft a habitation conservation plan for the region affecting the whooping cranes.

The whooping cranes were first seen at the Aransas National Wildlife Refuge in the 1940s. A Texas Fish and Wildlife Services' survey released March 2 estimated that there is a total of 279 birds in what's called the "Aransas-Wood Buffalo flock," believed to be the last known naturally migrating flock in the world.

Jim Blackburn, who represented the plantiffs, the Aransas Project, in the lengthy civil lawsuit, said the ruling will preserve the status quo until the state can come up with a more equitable way of dividing up its water resources in times of drought, something they were disregarding in the past.

Blackburn said he hoped the judge's decision not to admit into evidence the Abundance Survey - a new method of counting the birds that relies on estimating the size of the flock rather than conducting a direct head count - would encourage the U.S. Fish and Wildlife Service to re-evaluate its practices.

"There's no reason they can't do both. ... In effect, this was a vindication of Tom Stehn's life work," he said of the former whooping crane coordinator.

Chester McConnell, a Whooping Crane Conservation Association trustee who closely monitored the trial, said Stehn retired after more than 20 years on the job, unfortunately taking along with him expertise that simply can't be duplicated by a successor.

He said Stehn's method was superior because he flew over their habitat eight to 12 times during a two-month period to get accurate data.

"They're territorial. ... They stay in about a 300-acre block," McConnell said.

He also said the Guadalupe-Blanco River Authority's assertion that the cranes in question could have died for other reasons, such as infection or predators, was not true.

"It is very difficult for even the best people in the world to determine the exact cause of death for an animal that has laid out for several days," said McConnell, also a biologist. "You come up with the causes sometimes based on the conditions that you see out there (in the habitat) rather than what you see in that carcass."

He added that Texans can all do their part to ensure they aren't wasting water.

"Rather than flushing the toilet every time, flush every third time. ... Some can forgo filling their swimming pools," McConnell said.

The TCEQ said it was disappointed but not surprised by the outcome of the case.

"As argued during the trial, the TAP case is an unconstitutional attempt to use the Endangered Species Act as cover for rewriting the Texas Water Code," spokeswoman Andrea Morrow said in a statement.

She said the TCEQ is considering its options, including an appeal to the U.S. 5th Circuit Court of Appeals in New Orleans.

"I am disappointed with the outcome of the case but not deterred," said TCEQ Chairman Bryan W. Shaw in a statement. "The science and law will prove out in the end."

The GBRA's response was similar.

"This decision effectively dismisses all considerations of any other needs that exist within the basin and requires balance including both the needs of humans, agriculture and industry," said LaMarriol Smith, a GBRA spokesperson.

She said it could potentially jeopardize five years of work on a recent U.S. Fish and Wildlife-approved habitat conservation plan for endangered species.

That plan came together through the efforts of 26 stakeholders and 60 other participants after some endangered species were identified near the Edwards Aquifer in Central Texas, a body of water this region relies on, Smith said.

The GBRA has argued it has made great strides in studying the birds, which the authority contends have a broad diet and could have adjusted to flying a few more miles to get fresh water in 2009.

Smith said the GBRA, which does not rely on taxes, has spent upwards of $6 million on legal fees.

Jerry James, the city of Victoria's intergovernmental affairs coordinator, was driving to San Antonio on Tuesday to work on the very plan Smith was speaking about. He said he skimmed through Jack's opinion and still needed to study it.

James said the Edwards Aquifer plan involves something called an "incidental take permit," which residents can apply for after paying a fee and agreeing to abide by the water usage terms set out to protect the endangered species nearby.

James said the permit protects residents or businesses if any of these specific species -- the Fountain Darter, the Texas Blind Salamander, and Texas Wild Rice -- happen to die anyway.

"It was a very long process, but it has a lot of value if that's the route we end up taking," he said of the state.

It costs about $18 million a year to implement, which is raised largely through user fees and downstream interested parties, such as the city of Victoria, DOW Chemical and the GBRA, which voluntarily contributed about $750,000 to the pot, James said.

He said it is too early to tell whether something similar will happen in the Crossroads.



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