TCEQ Granted Victory by the Fifth Circuit Court of Appeals in Whooping Crane Lawsuit

Lissa Gregg

The U.S. Fifth Circuit Court of Appeals ruled yesterday that the Texas Commission on Environmental Quality (TCEQ) cannot be held liable for not allowing enough fresh water to reach the estuary where 23 endangered whooping cranes perished in the winter of 2008. The lawsuit, brought by The Aransas Project, argued that the TCEQ was responsible for the crane deaths by allowing too many users to withdraw water upstream, causing a decline of fresh water into the estuary. The lack of fresh water was argued to have depleted the cranes’ food staples of blue crabs and wolfberries and ultimately resulted in the cranes’ deaths. The case has threatened to change the State’s first in time, first in right water appropriate doctrine. However, the State was granted a victory when the court concluded “the deaths of the whooping cranes are too remote from TCEQ’s permitting withdrawal of water from the San Antonio and Guadalupe Rivers, the state defendants cannot be held liable for a take or for causing a take under the ESA [Endangered Species Act].” The court stated that “[f]inding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far.”

Read the full verdict here

Read the TCEQ press release here