On December 8th the Aransas Project (TAP) filed a Notice of Intent to sue several officials of the Texas Commission on Environmental Quality (TCEQ) in their official capacity for illegal harm and harassment of whooping cranes at and adjacent to Aransas National Wildlife Refuge in violation of Section 9 of the Federal Endangered Species Act. Under federal law, TAP must wait at least 60 days before filing suit. The individuals to be sued in their official capacity include the three commissioners of the TCEQ, the executive director and the TCEQ’s watermaster for the Guadalupe River.
According to TAP attorney Jim Blackburn, the winter of 2008/2009 was the worst in recent history for the whooping crane with a death toll of 23 birds, or 8.5% of the flock. “Based upon our studies, we believe that the primary cause of this massive crane mortality is the failure of the TCEQ officials to ensure sufficient freshwater inflows,” the letter states. The commission has allowed too many water permits for the booming areas along the Guadalupe and San Antonio rivers, resulting in high salinity in marshlands and estuaries, the group said.
“The TCEQ needs to develop a habitat conservation plan if there is to be any long-term hope for the future of this species and its habitat,” Blackburn said. “TAP is seeking a water management plan for this basin that reallocates water usage priorities, sets environmental flow standards for the bays, and includes a full accounting of all water uses and needs throughout the basin–all the way to the bay.”
The intent letter states:
In the litigation, The Aransas Project will seek an injunction barring TCEQ officials from approving new water rights permits involving the San Antonio and Guadalupe River basins until TCEQ officials and the Watermaster provide reasonable assurances that State-authorized activities will not harm or harass whooping cranes. The Aransas Project will also seek an injunction ordering TCEQ officials to develop a Habitat Conservation Plan for the San Antonio and Guadalupe River basins and San Antonio Bay, including provisions to control the allocation of already approved (e.g., existing) water rights permits in the rivers so that a minimum of 1.3 million ac ft/year flow past the Guadalupe River gauge at Tivoli. The Aransas Project will ask the court to order TCEQ officials to conduct a thorough analysis of all permitted and exempt withdrawals and develop a binding plan for water development and water use in the San Antonio and Guadalupe River basins which may include reallocation of existing water use rights or addition of special conditions to existing permits. The Aransas Project will request that the court appoint a special master to oversee TCEQ’s implementation and compliance with its orders. Finally, The Aransas Project will seek a declaratory judgment that State water rights laws and regulations that cause harm to critical habitat or the take of cranes are inconsistent with the requirements of ESA, are preempted by federal law, and are invalid under the Supremacy Clause of the United States Constitution.
To view the complete letter of intent, please visit: http://thearansasproject.org/wp-content/uploads/NoticeofIntenttoSue_120709.pdf
For more information about the group: www.thearansasproject.org
State Representative Bill Callegari issued a response to the letter stating, “If one south Texas environmental group has its way in court, millions of gallons of Texas water will be under the control of a federal judge.”
Texas cannot afford to have its river waters controlled by a federal judge, argues Callegari. He also urged the group to work with the appropriate state agencies and the environmental flows advisory process to identify an appropriate solution.
To view Callegari’s complete remarks, please visit: http://www.house.state.tx.us/news/release.php?id=2962
