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Court of Appeals Reverses Texas Whooping Crane Decision

On June 30, 2014, the Fifth Circuit Court of Appeals released a ruling reversing a District Court’s decision in The Arnasas Project v. Shaw.

The case concerns the Texas Commission on Environmental Quality’s (TCEQ) alleged violation of the Endangered Species Act, due to their issuance of water withdrawal permits that may have impacted the habitat of the Whooping Crane. The Arnasas Project, a group of landowners and environmental advocates, argued that the TCEQ’s actions resulted in the death of 23 Whooping Cranes in the winter of 2008-2009.

In March 2013, a District Court judge sided with The Arnasas Project. The court relied heavily on scientific evidence illustrating the link between permitted water diversions from the San Antonio and Guadalupe River basins and the degradation of the San Antonio bay, where the Whooping Crane spends its winters. The court enjoined the issuance of future withdrawal permits until the TCEQ acquired the relevant takings permit under the Endangered Species Act.

However, the Court of Appeals reversed that decision based on the issue of proximate cause, meaning that the causal relationship between the issuance of water permits and the death of the cranes was in fact too weak to hold the TCEQ liable. Under the new decision, the TCEQ may resume permitting activities.

While the TCEQ may have dodged a bullet due to the Court of Appeal’s interpretation of proximate cause, the agency may want to consider taking steps to balance human and environmental water interests to protect itself from future litigation and to keep it from going the way of California’s Bay-Delta, where water right holders and the environment have been in conflict for decades.  (See the Hydrowonk Blog’s  Whooping Crane Decision Checks Texas into Hotel California for more on the latter point).

Written by Stratecon Staff