March 11, 2013 will be a historical date in Texas water when the case The Aransas Project v. Shaw brought Texas into a new era of water resources. Federal District Judge Janis Graham Jack held that the Texas Commission on Environmental Quality (“TCEQ”) has failed to manage the waters of the San Antonio and Guadalupe Rivers to protect the endangered whooping crane. Texas will now take the journey that California has been (unsuccessfully) traveling for decades over its own Bay-Delta. Texas learned that science, economics and politics governs modern water resource management. In court, Texas water users mostly “bet the ranch” on legal doctrine.
The decision addressed concerns about the impact of diversions from the San Antonio and Guadalupe Rivers on freshwater flows into San Antonio Bay. The plaintiffs in the case, a Texas non-profit group The Aransas Project (“TAP”) argued that inadequate flows during the 2008-2009 winter caused the death of at least 23 whooping crane, protected under the federal Endangered Species Act. Prior to the lawsuit, TAP had applied to TCEQ for a water permit to require a certain amount of freshwater stay in the San Antonio and Guadalupe Rivers to assure sufficient amounts of freshwater in San Antonio Bay.
In a 124-page opinion, Judge Jack dissected legal defenses related to Texas laws adequately addressing environmental flows for species protection under the Endangered Species Act. Undoubtedly, there are many takeaway’s from the judge’s discussion. For me, the key point is that environmental purposes supersede even senior water right holders, especially during times of drought.
Law v. Science
The judge’s discussion provides insight into the relative emphasis on legal arguments versus science. Judge Jack devoted twenty-seven pages to legal issues raised about standing and whether the court should defer to Texas. The judge devoted fifty-seven pages to scientific evidence about causation of diversions on freshwater flows, salinity in San Antonio Bay and impact on whooping cranes. The decision devotes one page to evidence submitted by the Guadalupe Blanco River Authority on the economic impact of imposing a 1.15 million acre foot minimum instream flow requirement. The judge noted that the assessment was not comprehensive because it did not consider the economic benefits generated from a minimum instream flow requirement.
Key Finding of Fact
A key finding of fact is that, “in the times of drought and other habitat stressors, the habitat may require up to 1.3 million acre feet of freshwater inflows beginning well in advance of the Whooping Cranes’ arrival in October to prevent the salinity of habitat exceeding 20 ppt (parts per thousand).” The average salinity of seawater is 35 ppt.
The Order’s Key Points
- Found on behalf of TAP on all counts
- Found the TCEQ and the State caused the death of at least 23 whooping cranes during winter 2008-2009 in violation of section 9 of the federal Endangered Species Act
- Enjoined TCEQ from issuing any new permits on the Guadalupe and San Antonio Rivers
- Ordered TCEQ to file for an Incidental Take Permit from U.S. Fish and Wildlife Service and develop a Habitat Conservation Plan (“HCP”)
- Judge retained jurisdiction over HCP
- Awarded TAP attorney fees, expert fees, and court costs
LaMarriol Smith, spokesperson for the Guadalupe Blanco River Authority provided the following comment that the decision is “wrong on the facts and the law” and GBRA intends to appeal:
- “Dismisses all consideration of any other needs that exists within the basin and requires balance, including those of humans, agriculture, and industry.
- Potentially jeopardizes five years of work on a recent U.S. Fish and Wildlife Service approved habitat conservation plan (HCP), including the efforts of 26 stakeholders and 60 other participants who developed the HCP for endangered species in the Edwards Aquifer, which is an integral part of the Guadalupe River System.
- Ignores the sworn testimony of all 11 experts with impeccable credentials who testified on behalf of the defendants and validated information presented by the plaintiff’s experts—even though one of the plaintiff’s ke experts was a ‘student’ of the defendant’s expert witness.
- Disregards all previous efforts by GBRA to protect and expand whooping crane habitat and to study their foraging habits.”
An article dated March 12 in the Austin-Statesman by Asher Price included more reactions. The decision may re-focus Texas water policy:
“With water on the Guadalupe more or less completely allocated for residential, agricultural and business uses, river authorities and the state environmental commission will have to pursue ‘some creative transactions’ to set aside water for the environment, said Andrew Sansom, director of the Meadows Center for Water and the Environment at Texas State University.
Lawmakers might have to consider whether money they were planning to use to build infrastructure for water projects should be channeled into buying back water rights to set aside for environmental purposes.
‘Unless we get serious about protecting these environmental flows, we invite federal intervention in every basin where endangered species are present,’ Sansom said. ‘That’s not a consequence any of us will welcome.’”
The decision may also reinforce the need to acknowledge environmental considerations on a par with other interests:
“The message, said Myron Hess, manager for Texas water programs at the National Wildlife Federation, is that ‘leaving the environment out (of water planning) makes as much sense as building a budget and leaving out the rent.’”
Lone Star Future
Watershed court decisions don’t proceed easily into a sunny dawn. Extensive litigation is ahead. Where are the headwinds?
While Texans are not noted to looking at California for its future, it may pay to take a glance. The conflict between water-right holders and the environment has been going on for a generation in California over the Bay-Delta. Regulatory hearings in the 1970s and 1980s, Bay-Delta Accord in the 1990s, and “solving the Delta” have been proceeding without an end in sight. The current Bay Delta Conservation Plan effort is the contemporary version of this history. Seemingly endless litigation has been on a parallel path—each case brought to right a legal wrong and/or for strategic advantage. The environment has not improved and neither has the water supply picture. Both have deteriorated.
The recipe for stalemate is well-known and well-worn: (i) seizing on legal doctrines for solutions, (ii) dueling science, and (iii) economic protectionism. Finding a political consensus to move forward takes a rare commodity: leadership.
in California, Governor Davis stepped forward in 2003 and forged the consensus for the Quantification Settlement Agreement to resolve disputes and better manage the state’s 4.4 million acre foot annual entitlement to the Colorado River (although even this episode has generated continued litigation and conflict from the lack of follow through by Governor Davis’ successor). Governor Brown is taking a shot this session on water. In the end, success will be found from pro-active leadership by those willing to step forward, wrestle in the abyss and stay the course.
On a personal note, my favorite lyric from the Eagle’s song Hotel California is:
you can check out anytime you like, but you can never leave