A missed opportunity for whooping cranes - and western water authorities - on the Texas Gulf Coast.

• Author: Sandford, Jonah
• Position: COMMENT

1. INTRODUCTION II. Legal Framework A. The Endangered Species Act B. Water Allocation in Texas III. ARANSAS PROJECT V. SHAW LITIGATION A. Background B. The Litigation IV. THE FIFTH CIRCUIT'S REASONING IN ARANSAS PROJECT IS, INCONSISTENT WITH PREVIOUS DECISIONS FINDING REGULATORY ENTITIES LIABLE FOR TAKE A. Previous Decisions Addressing Liability of Regulatory Entities for Take B. Inconsistency in the Aransas Project Decision C. Problem with Post-Sweet Home Jurisprudence V. CREATING A MODEL HABITAT CONSERVATION PLAN A. The Bay Delta and Lower Colorado River HCPs B. The Edwards Aquifer HCP VI. CONCLUSION I. INTRODUCTION

   There is a fundamental tension in the American West between the prior appropriation doctrine and the Endangered Species Act (ESA or Act). (1) As demand has increased for the region's limited water supplies, and more species have been listed as threatened and endangered under the ESA, diversions pursuant to vested water rights have inevitably led to the deaths of listed species dependent on minimum stream flows for survival. (2) This dynamic creates obvious difficulties for state water authorities who wish to honor existing water rights to the fullest extent possible, while avoiding liability for "take" under section 9 of the ESA.

   This conflict between the ESA's take restrictions and current systems of water allocation took center stage in a recent Fifth Circuit decision. In Aransas Project v Shaw, (3) the court found that the Texas Commission on Environmental Quality (TCEQ) was not liable for the deaths of twenty-three endangered whooping cranes. (4) The cranes had died as an indirect result of insufficient freshwater flowing into San Antonio Bay, which receives water from two major river systems regulated by TCEQ. (5) Despite the agency's regulatory control over the waters feeding the bay, the Fifth Circuit found that there was a lack of proximate causation: it was not reasonably foreseeable to the court that the agency's management practices would cause the deaths. (6)

   This Comment argues that the Fifth Circuit's proximate causation analysis was flawed, and that its analysis and holding are inconsistent with that of other courts that have addressed the issue of section 9 liability for regulatory entities. Further, the case illustrates something troubling about this line of cases: because the lower courts have received such vague guidance from the Supreme Court as to what is "reasonably foreseeable" in this context, judges (with varying predispositions toward a specific case) are free to frame their causation analysis so as to reach a preferred result.

   The Aransas Project decision is especially unfortunate because the plaintiffs requested relief--that TCEQ develop a Habitat Conservation Plan (HCP) for whooping cranes and apply for an incidental take permit (ITP)--is an eminently reasonable solution to alleviating some of the inherent tension between existing water rights and the ESA. A properly written and enforced HCP and ITP, particularly for an iconic species such as the whooping crane, could provide a valuable roadmap for other water regulatory agencies who wish to avoid take liability while respecting property interests in vested water rights.

   This Comment proceeds in six Parts. Part II provides the relevant legal framework surrounding the ESA's prohibitions on "take" of listed species, and outlines Texas's system of water permitting and regulation. Part III provides a background to the Aransas Project litigation, and discusses the decisions and reasoning of the district court, which ruled for the plaintiffs, and the Fifth Circuit, which reversed and found that TCEQ was not liable. Part IV argues that the Fifth Circuit's proximate cause reasoning was flawed and inconsistent, and that the decision highlights a fundamental problem, identified above, with ESA jurisprudence in this context. Next, Part V turns to the question of what a properly designed HCP for a species highly dependent on freshwater flows might look like. That Part begins by reviewing two high-profile HCPs that were developed in recent years in areas where permitted diversions have caused take of endangered riparian species. Concluding that these specific plans offer little guidance for a potential whooping crane HCP, the discussion then turns to another recent HCP developed to protect species dependent on Texas's Edwards Aquifer. Even though the Edwards Aquifer HCP was developed to manage groundwater withdrawals, it includes two intelligent measures that could serve as an excellent starting point for an HCP concerning a surface water-dependent species like the whooping crane. Part VI concludes with some brief thoughts on the potential value of such an HCP for water authorities across the western United States, and expresses hope that these plans will begin to be developed and implemented for listed flow-dependent species.

2. LEGAL FRAMEWORK

   In Aransas Project, the Fifth Circuit grappled with a scenario where the ESA's prohibition on "take" intersected with Texas's regulatory scheme for permitting water use. An overview of the relevant legal background in the case illustrates the tension between western water authorities' management of decreasing water supplies and their legal obligation to avoid harming endangered species.

   1. The Endangered Species Act

      The ESA was passed in 1973 "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species." (7) Described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation," (8) the Act provides strong protections for more than 2,000 species of plants and animals that have been fisted by the federal government as "endangered" or "threatened."' As such, it has proved to be a "powerful tool" for environmental organizations wishing to challenge activities that may harm fisted species. (10)

      The ESA is administered by the United States Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). (11) To be eligible for the protections of the ESA, a species must first be listed as either threatened or endangered by one of the two agencies. (12) An "endangered species" is defined in the Act as one that is "in danger of extinction throughout all or a significant portion of its range," and a "threatened species" is one that is likely to become endangered "within the foreseeable future." (13)

      Once a species is listed under the ESA, section 9 of the Act provides a series of "[p]rohibited acts" that includes, most significantly, the prohibition on "take" of any listed species. (14) "Take" is defined in the ESA to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." (15) Importantly, this prohibition on take--along with the rest of the section 9 prohibitions--applies to "any person," (16) which is defined broadly to include not only individuals and private entities, but also "any State" and "any officer, employee, agent, department, or instrumentality of the Federal Government [and] of any State." (17) The section 9 prohibitions thus extend to regulatory entities, and courts have found such entities liable when they authorized or otherwise permitted activities resulting in take. (18)

      The term "harm" in the definition of take has been interpreted by FWS regulation to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." (19) This interpretation was affirmed by the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (Sweet Home'). (20) However, in upholding the regulation's broad definition of harm, the Court noted that enforcement of the ESA's take prohibitions will involve "difficult questions of proximity and degree." (21) In a concurring opinion, Justice O'Connor stressed that application of this broad definition was "limited by ordinary principles of proximate causation, which introduce notions of foreseeability." (22) This language indicates that, for an action modifying or degrading habitat to qualify as take, plaintiffs must show a sufficient causal link between the death or injury and the complained-of activity. In other words, take is only prohibited by the ESA when it is "foreseeable rather than merely accidental." (23)

      Finally, section 10 of the ESA provides an important exception to the Act's strict prohibition of take. In recognition of the fact that "some human activities will necessarily encroach upon ... endangered species," (24) section 10 authorizes FWS or NMFS to issue a permit allowing take if it determines the take "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." (25) Before such an ITP may be issued, the applicant must develop and submit an HCP. (26) The HCP must identify impacts likely to result from any taking and measures the applicant will take to "minimize and mitigate" those impacts. (27) An ITP cannot be issued if the agency determines the taking will "appreciably reduce the likelihood of the survival and recovery of the species." (28)

   2. Water Allocation in Texas

      Texas's system of allocating and permitting surface water has much in common with that of other states in the arid American West, where there is intense competition for limited water supplies. (29) Like other "prior appropriation" states, Texas has developed a permitting scheme for the diversion and use of state waters. This Section outlines the relevant components of Texas's scheme and various powers granted to the state water regulatory authority. While the details of permitting and allocation systems vary somewhat between the western states, the fundamentals of the various permitting schemes are quite...