Texas Challenges Permit Ban Protecting Endangered Cranes

Texas was denied an emergency stay of a U.S. court order temporarily barring water permits for a river system supplying central Texas cities, power generators and petrochemical plants to ensure enough water reaches the last migratory flock of endangered whooping cranes.

The five-foot-tall bird was believed to be extinct until a flock of 15 survivors was found on an isolated stretch of Texas coastal marsh in the 1940s. There are about 500 whooping cranes alive today, according to trial evidence, with a flock of about 250 birds that migrates between Texas and Canada. That flock is the only self-sustaining wild population.

U.S. District Judge Janis Graham Jack in Corpus Christi, Texas, March 11 blocked state regulators from approving new permits for the Guadalupe, San Antonio or Blanco rivers “until the state of Texas provides reasonable assurances to the court that such permits will not take whooping cranes in violation of the Endangered Species Act.” Late today, Graham denied the state’s request for an emergency stay of her order. She agreed to a slight modification that lets regulators issue new permits deemed “necessary to protect the public’s health and safety” during Texas’s ongoing drought. Texas said it will appeal the ban to a higher court.

Texas Attorney General Greg Abbott called the ruling flawed and had asked Graham to stay her order while the state appeals “to prevent unnecessary economic hardship” for the communities and industrial water users in the river basin. The court order will “impose irreparable harm on the state’s economy and its drought-affected residents,” Abbott said today in a statement.

Refinery Concentration

The cranes share a coastline with the world’s largest concentration of refineries and petrochemical plants, which stretches from their refuge eastward to the Louisiana border. Dow Chemical Co. (DOW)’s Seadrift plant, one of the largest water users on the river system, sits across the bay from the refuge.

The judge determined that mismanagement by Texas water regulators resulted in the deaths of 23 endangered cranes in 2009. She ordered the state to devise a water-sharing plan that accommodates historic water rights while allowing enough fresh water to reach the coastal marsh where the endangered flock spends the winter.

“This is a serious, constitutional-scale fight the state is embarking on,” Jim Blackburn, the lead attorney for a coalition of coastal tourism and environmentalists who sued to protect the cranes, said. “The state’s hard-nosed denial approach to our future water problems is short sighted. The state will lose because the cranes are important and creative future alternative water supplies are important.”

Jack said in her ruling that the Texas Commission on Environmental Quality, which grants water permits, violated federal wildlife protections by failing to monitor how much water cities and industrial users took from the rivers during droughts. According to evidence at a 2011 trial, so much water was siphoned from the rivers during the 2009 drought that 8.5 percent of the Texas whooping crane flock died.

State regulators were sued in 2010 after studies found that reduced river flow into the marsh depleted drinking water supplies and stocks of blue crabs and wolfberries that the cranes feed on at the Aransas Wildlife Refuge about 175 miles southwest of Houston.

The case is Aransas Project v. Shaw, 2:10-cv-00075, U.S. District Court, Southern District of Texas (Corpus Christi).

To contact the reporter on the story: Laurel Brubaker Calkins in Houston at laurel@calkins.us.com.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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