Whooping Cranes Rock the System

On occasion, the rickety edifice of Texas water law is shaken to its core. Such a moment came yesterday when The Aransas Project – a consortium of businesses, citizens and conservation groups – filed suit in federal court in Corpus Christi, contending that the state of Texas is driving the endangered Whooping crane toward extinction. (Download the entire lawsuit here and here.)

The whooping crane (or “whooper”) is a thing to behold – a bird “tall enough to peck you eyes out” with a wingspan of over seven feet and a wonderfully goofy mating dance. The Aransas flock flies over 2,500 miles every year, from its nesting haunts in Wood Buffalo National Park in Alberta, Canada to the Texas coast.

In 2008-2009, a total of 23 cranes died at their winter haunts in Aransas County, a huge die-off considering that the flock only numbered 270. Just 26 Whoopers had perished between 1950 and 1986, according to the suit. Researchers believe that the recent deaths were due to diminished flows in the Guadalupe and San Antonio Rivers, streams increasingly tapped to slake upstream cities and industry.

Says the suit:

A critical reason the Cranes are dying is because not enough freshwater is flowing into the San Antonio Bay ecosystem and those habitats connected to it, including the Carlos, Mesquite and Aransas bay ecosystems and the adjacent marshes.

This reduction in freshwater inflow affects the Cranes in three crucial ways: it reduces the availability of blue crabs, their most important food source; it reduces the abundance of wolfberry fruit, another important food source; and it reduces the availability of drinkable water.

The Texas Commission on Environmental Quality and the South Texas Watermaster are to blame for this dilemma, the suit asserts, by allowing more water to be diverted during dry times than is sufficient to support the Whooping crane habitat. The result, the suit contends, is that TCEQ and the Watermaster are violating the Endangered Species Act by harming the birds.

Indeed, with increasing water use in the Guadalupe basin, the Cranes face an existential threat – lack of freshwater could mean, literally, that they face extinction.  Federal law forbids any such “take”, actual or threatened, even if Defendants did not intend or even did not want their actions to cause harm.

As far as Plaintiff is aware, none of the Defendants have taken any action to reduce this existential threat to Whooping Cranes well known to be caused by lack of freshwater.

If the Aransas Project wins, the “court could force the state to restructure its system of allotting water permits and retract water rights already allocated to existing users,” according to the Texas Tribune.

The state has given away more water rights than exist in Texas rivers during dry spells, a self-evident failure that the Legislature has been reluctant to seriously address.

So this lawsuit is bigger than the whooping cranes (although they’re pretty big, literally and figuratively). It’s really a fundamental challenge to the whole notion of “water rights” in Texas.