Texas Surface Water and Whooping Crane Dispute

From litigation to collaboration

by Todd Votteler, Ph.D.

In December 2015, the Guadalupe-Blanco River Authority and The Aransas Project began a search for common ground. The two organizations had spent years in litigation over the use of water in the Guadalupe River concerning how that use affects the wintering population of the endangered whooping crane (Grus americana).  On February 24, 2016, the two former antagonists announced collaboration on a process to address human and environmental issues for the benefit of the Guadalupe River system, including San Antonio Bay and the Guadalupe Estuary, and to obtain funding for studies and projects for this effort.  On November 29, 2016, the original agreement was revised substantially and the effort is now forging ahead.

The Guadalupe-Blanco River Authority (GBRA) is a water conservation and reclamation district that was established by the Texas Legislature in 1933. GBRA provides stewardship for the water resources in its ten county statutory district, which begins near the headwaters of the Guadalupe River and includes San Antonio Bay in the Gulf of Mexico.  GBRA provides services that include: hydroelectric generation; water and wastewater treatment; municipal, industrial, and agricultural raw water supply; and recreational operations.

The Aransas Project (TAP), is a non-profit, Texas corporation comprised of member organizations and individuals, including: the International Crane Foundation; Aransas County; the City of Rockport; various Audubon Societies; the American Bird Conservancy; various fishing and nature-related organizations; and several individuals and corporations located primarily in Aransas County. TAP supports responsible water management that is reasonable, sustainable and environmentally sound. TAP was originally created to bring Texas water and whooping crane issues to federal court.

This story begins in March 2010, when TAP sued the Texas Commission on Environmental Quality (TCEQ) using the federal Endangered Species Act (ESA) in the US District Court in Corpus Christi. TAP asserted  that mismanagement of the Guadalupe and San Antonio Rivers (the major tributary to the Guadalupe River) harmed the whooping crane that winter at the Aransas National Wildlife Refuge. Whooping Crane have been listed as endangered under the ESA since its enactment in 1973. In a December 2011 trial in the US District Court in Corpus Christi, TAP alleged that TCEQ violated the “taking” provision of ESA Section 9. That provision prohibits a “take,” which the ESA states: “means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” effecting species listed as endangered.

TAP alleged that during drought, a reduced amount of freshwater reached the coastal marshes and caused the salinity to rise, thereby preventing whooping crane from finding sufficient food and water.

TAP claimed that the low flows in 2008-09 weakened the cranes, resulting in the deaths of 23 birds.  GBRA intervened in the litigation, now known as The Aransas Project v. Shaw et al., as a defendant (Dr. Bryan Shaw is the Chairman of TCEQ). In March 2013, a federal judge in Corpus Christi, Judge Janis Jack, ruled in favor of TAP. The ruling prohibited TCEQ from issuing new water permits on the Guadalupe and San Antonio Rivers. Judge Jack ordered Texas to develop a habitat conservation plan to ensure freshwater inflows for the whooping crane habitat. The Aransas Project v. Shaw et al., 930 F. Supp. 2d 716, 786-88 (S.D. Tex. 2013).

On March 15th, then Texas Attorney General Greg Abbott (now Texas Governor) requested that the federal district court suspend its order. The motions by Attorney General Abbott and GBRA were denied, and the District Court’s order was appealed on an emergency basis. On March 26, 2013, the US Fifth Circuit Court of Appeals granted a stay of the District Court’s ruling. With the stay in place, TCEQ was able to resume issuing water permits in the Guadalupe and San Antonio Rivers.  On June 30, 2014, a three- judge panel of the Fifth Circuit unanimously overturned Judge Jack’s ruling — agreeing with defendants that the plaintiff TAP failed to prove its case. Following a Fifth Circuit three-judge panel’s unanimous reversal of Judge Jack’s decision, the Fifth Circuit denied a Petition for Rehearing En Banc (rehearing of all Fifth Circuit judges) requested by TAP in December 2014. The US Supreme Court denied an appeal in TAP v. Shaw, et al. on June 22, 2015, and as a result the defendants in the case prevailed and the litigation finally came to an end.  GBRA eventually bore $8 million in associated fees. The overall costs of the litigation to all the parties likely exceeded $12 million.

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