Balance is needed in EPA regulations

Published 8:40 pm Saturday, August 10, 2013

It’s a bit much to call the whooping crane elegant — like a teenager, it’s pretty much all knees and elbows. But just its rarity makes it worth the effort to preserve it. And, since some 15 surviving whooping cranes were found on the Texas coast in the 1940s, the crane has been the rare success story of the Endangered Species Act.

But now overzealous environmentalists and federal regulators are using the crane population — now at an estimated 500 — to restrict water use along the Guadalupe, San Antonio and Blanco rivers, and to wither Texas economic growth on the vine.

Texas Attorney General Greg Abbott, however, is leading the fight for a balance between environmentalism and economic common sense.

Abbott and his attorneys argued the case, the Aransas Project v. Bryan Shaw, Etc., before the Fifth Circuit Court of Appeals on Thursday.

“It is yet another flashpoint in an ongoing battle between Texas Attorney General Greg Abbott and the federal government,” the Texas Tribune reports. “And it’s one that other states worry could end up making them responsible for protecting federally designated endangered species.”

The Aransas Project is a non-profit agency that claims the Texas Commission on Environmental Quality (which issues permits to water-users along those rivers) didn’t allow enough fresh water to drain into the Aransas Refuge. That sent the salinity level of the region up, which had an effect on the blue crab population, the Aransas Project claims. The end result was the death of 23 whooping cranes, due to “food stress,” the agency says.

Abbott argues that the Aransas Project never proved its claim that the crane deaths were caused by the state’s action — issuing water permits. Many factors affect saline levels.

“There was, for example, a severe drought in the winter that preceded the alleged decrease in whooping-crane population. And even if no water had been diverted from the rivers, the salinity levels would have varied on average by only one part per thousand from the salinity levels actually recorded in the San Antonio Bay that year, an impact much smaller than the natural variability of salinity in the bay,” the state’s brief argues.

A bigger issue is whether the state can be made responsible for enforcement of federal statutes such as the Endangered Species Act.

“The district court interprets the Endangered Species Act to require state officials to maintain and enforce state-law prohibitions against water usage that purportedly harms an endangered species, holding that permits must be denied and state-law prohibitions on water use maintained whenever water is used in a manner that violates the Endangered Species Act,” the state responded. “This approach contradicts basic principles of federalism.”

Of course whooping cranes should be protected — Abbott isn’t arguing they shouldn’t. But too often, the Endangered Species Act has been used as a club, rather than a more precise tool to balance the needs of Texans with the need to protect the environment.

A balance must be struck. The first step of striking it will be winning an appeal at the Fifth Circuit Court of Appeals.