Today, the Houston Chronicle published an Editorial about the recent decision by the a panel of the Fifth Circuit Court Court of Appeals. It starts:

Imagine this conversation 50 years from now when a docent at the Houston Museum of Natural Science walks visitors through the ornithology collection.

“This is the passenger pigeon, which became extinct in the 20th century because of mass deforestation, disease and competition for food. Next, children, we have the whooping crane, one of the most majestic birds to ever inhabit North America. It became extinct in the early 21st century because no one would tell commerce and lobbyists that they would have to use less water. No one demanded innovation.”

The extinction scenario for the most famous avian residents of the Texas coast is not farfetched.

So true. Although this population of Whoopers has grown from 16 birds in the 1930s, to approximately 300 today, that increase took three-quarters of a century. Those three hundred Whoopers still make the species one of the rarest birds on the planet. The Editorial continues:

And anyone who has marveled at the majesty of the 5-foot-tall birds foraging for blue crabs in their wintering grounds at the Aransas National Wildlife Refuge near Rockport has to be saddened by the June 30 ruling from the 5th U.S. Circuit Court of Appeals. A three-judge panel said that U.S. District Court Judge Janis Jack abused discretion in finding that 23 cranes had died because of a disruption to their habitat.

The case, The Aransas Project v. Shaw, is an Endangered Species Act enforcement case. At the heart of the case is the claim that Texas Commission on Environmental Quality (TCEQ) failured to properly manage the state-owned freshwater inflows to the San Antonio and Guadalupe Bays during time of low flows which resulted in elevated salinity in the bays, lower availability of necessary food and water resources for the cranes, resulting in the deaths of at least 23 endangered cranes. Both the District Court and the Fifth Circuit panel agreed with TAP that there was huge and unprecedented mortality of Cranes in the 2008-2009 winter. All the Judges accepted TAP’s proof that at least 23 Cranes died. That was 8.5% of the entire flock.

After listening to all the trial testimony, in the detailed 124-page opinion Judge Jack had ruled that the water management practices of the TCEQ allowing unrestricted water diversions had so reduced inflows into the bays that the high salinity conditions deprived the Cranes of vital resources including food and drinkable water. The Editorial aptly described it:

The lower court found that the Texas Commission on Environmental Quality was responsible for the deaths because it issued permits that ultimately withheld water that would lower the salinity levels in Aransas Bay. Salty water is not conducive for crabs and wolfberries, two of the cranes’ staple foods.

The district court initally issued an order preventing the TCEQ from approving or granting new water permits affecting the Guadalupe or San Antonio Rivers “until the State of Texas provides reasonable assurances to the Court” that new permits would not result in harm to the whooping cranes. The district court had also ordered the agency seek what is known as an Incidental Take Permit and develop a Habitat Conservation Plan. An Incidental Take Permit is a permit issued by the United States Fish and Wildlife Service (USFWS) that allows the holder to proceed with an otherwise lawful activity that results in “incidental” harm to an endangered species, but requires the permit holder to design, implement and fund a plan that minimizes and mitigates harm to the species while carefully balancing competing interests of various stakeholders in the basin. Asking the State of Texas to simply comply with federal law was apparently just too much for the State to stomach, so the State appealed.

The Chronicle editorial proposed that:

… it is time for our Legislature to show leadership. And this fix is one that will not require a dime of taxpayer money. We need a leader to propose and ensure the implementation of laws that restrict water usage that has a negative impact on the cranes. We need education campaigns and mandates about smart water conservation. We need to tap our new water slush fund to save the birds. And, perhaps most important, we need an economic analysis of water pricing in the state.

If we charged the right price instead of giving the resource away, consumers and industry would not only act smarter, we might be able to fund technology that would keep important bay areas at the correct salinity levels, benefitting birds and business.

Most of all, we need to create an environment in Texas where the view of water isn’t a gushing tap or a resource that exists to fill recreational lakes. We must think of entire ecologies. And when we say with pride, “Don’t Mess with Texas,” we should be sure we’re not messing with something thoroughly Texas – the whooping crane.

TAP thanks the Editorial Board of the Houston Chronicle for focusing attention on this important issue, and applauds their suggested solution. However, so long as the State of Texas insists that it can ignore federal law (even going so far as telling the Fifth Circuit that Texas can issue hunting licenses for Whooping Cranes, if it wants to), TAP will continue to use every resource, including litigation, to protect the bays and the Texas’ last Whooping Cranes. The alternative, is that the State of Texas and the river authorities (especially the Guadalupe-Blanco River Authority whose chief believes that any water flowing into the bay is “wasted water”) will drain the rivers completely dry, kill the coastal bays, and drive the Whooping crane back into extinction.

Read the full Editorial here.