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Myron Hess, Texas Water Program Manager and Counsel
512-576-3948 or hess@nwf.org
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July 1, 2014

Statement of Myron Hess, National Wildlife Federation, on Ruling of Fifth Circuit Court of Appeals in The Aransas Project Litigation

“Although the ruling announced today reversed the district court decision, the opinion of the Fifth Circuit Court of Appeals is a narrow one. The Court of Appeals determined that the district court opinion did not adequately address the issue of proximate cause, which is similar to predictability, of harm to whooping cranes. Basically, the Court ruled that, based on the record before it, the severe, short-term drought period of 2008-09 and its effect on endangered whooping cranes appeared to be “an outlier” among cyclical drought conditions. (Opinion at p. 30). In particular, the Court stressed that, because the affected population of whooping cranes appeared to be increasing in number in the years before and after that brief period, the die-off during that period should be viewed as unexpected and not adequately foreseeable for purposes of imposing liability under the federal Endangered Species Act.

“The ruling does not let the Texas Commission on Environmental Quality (TCEQ) or the State of Texas off the hook for consideration of longer-term impacts of water rights permitting on federally listed threatened or endangered species. Anticipating the recurrence of long-term, severe droughts, like the historic drought of the 1940s and 1950s, is one of the most basic tenets of surface water permitting in Texas. Adverse impacts accompanying those types of drought conditions and authorized diversions of water are very foreseeable and the state’s water availability modeling assumes those conditions will be repeated. Similarly, the ruling certainly does not relieve individual water right holders who actually divert water from potential liability.

“Today’s ruling relieves TCEQ of an immediate court-imposed requirement that it incorporate endangered species impacts into its management of existing water rights in the Guadalupe and San Antonio rivers. However, it shouldn’t take a lawsuit under the federal Endangered Species Act law to persuade Texas agencies to protect the natural heritage of all Texans. If the State of Texas persists, as it develops water supplies, in a short-sighted failure to plan for maintaining sufficient flows to ensure healthy rivers and bay systems and the fish and wildlife they support, all Texans will be much poorer for it.”

5th Circuit Opinion – 6-30-14

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Myron Hess manages Texas Water Programs and serves as legal counsel for the National Wildlife Federation in its South Central Regional Center in Austin. NWF was not a party in the TAP litigation.