Court Rules Texas Violated the Endangered Species Act

On March 11, 2013, the U.S. District Court for the Southern District of Texas ruled that a State’s water management activities (including granting prior appropriation permits) violated Section 9 of the Endangered Species Act (“ESA”) by failing to allow for sufficient freshwater flows to a wildlife refuge. Aransas Project v. Shaw, — F.Supp.2d —-, 2013 WL 943780 (S.D. Tex. 2013). The Plaintiff, the Aransas Project (“TAP”), sued to protect the interests of the federally protected Whooping Crane and inflows to the Refuge. The court found that the Texas Council on Environmental Quality was not precluded from complying with Section 9 by Texas’ “first in time, first in right” priority water system. The Court found the Council had emergency authority to take the necessary acts to protect bays and wildlife and also the duty to comply with federal wildlife law. The court enjoined the Council from approving new water permits affecting the Guadalupe or San Antonio Rivers until the State provides assurances that such permits will not “take” (i.e., injure or kill) Whooping Cranes in violation of the ESA. The Fifth Circuit Court of Appeals has stayed the lower court’s judgment pending appeal, which is ongoing.