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Aransas Project v. Shaw

ELR Citation: 43 ELR 20053
Nos. 2:10-cv-075, (S.D. Tex., 03/11/2013) (Jack, J.)

A district court held that the Texas Commission on Environmental Quality violated ESA §9 by failing to properly manage freshwater inflows into the San Antonio and Guadalupe bays during the 2008-2009 winter, thereby causing an unlawful take of the world’s only self-sustaining, wild Whooping Crane population in the Aransas National Wildlife Refuge. The agency's water management practices during 2008-2009, combined with the severe drought, drastically modified the cranes' critical habitat making it hyper-saline. The hyper-saline conditions caused a reduction in the availability of wolfberries and blue crabs, the cranes' primary food resources, as well as in fresh drinking water. In total, the adverse modification of the cranes' critical habitat effectively caused the death of at least 23 Whooping Cranes during the 2008-2009 winter season, constituting a "take" under the ESA. The court therefore enjoined the agency from approving or granting new water permits affecting the Guadalupe or San Antonio Rivers until it provides reasonable assurances that such permits will not take Whooping Cranes in violation of the ESA. The court also ordered the agency to prepare an incidental take permit and corresponding habitat conservation plan (HCP). The preparation of an HCP would require the agency to address freshwater flows and to reduce and mitigate adverse impacts of water diversions and related practices on the crane population. In addition, the HCP would identify how the agency would achieve goals related to inflows and protection of the cranes.