Fifth Circuit Court of Appeals rules in favor of TCEQ in whooping crane lawsuit
The U.S. Fifth Circuit Court of Appeals today reversed a 2013 U.S. District Court decision that had granted an injunction prohibiting the TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where endangered whooping cranes make their winter homes in the Aransas National Wildlife Refuge.
The action was brought by The Aransas Project against all three TCEQ commissioners, the TCEQ’s executive director, and the South Texas watermaster. The suit alleged that the TCEQ’s actions led to a significant reduction in freshwater inflow into the San Antonio Bays ecosystem, thereby ultimately resulting in the deaths of 23 cranes during the winter 2008-2009 and a “taking” of an endangered species in violation of the Endangered Species Act. Today’s ruling reverses that earlier decision.
“The State of Texas is pleased to have its position vindicated by the Fifth Circuit Court of Appeals,” said TCEQ Chairman Bryan W. Shaw, Ph.D., P.E. “The TCEQ remains committed to protecting the needs of the environment as part of its holistic evaluation of requests to appropriate state water. The initial decision of the district court would have had drastic implications for water availability throughout the state.”
“This decision is an important victory for Texas and how we manage water resources in our state,” said Carlos Rubinstein, Chairman of the Texas Water Development Board. He was named in the suit because when it was filed, he was a TCEQ commissioner.
As noted by the court, “[f]inding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far.”
Accordingly, the court concluded, “[b]ecause 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 [Endangered Species Act].”