Bloomberg News

Texas Water Trial Pits Chemical Companies, Cities Against Cranes

December 06, 2011

Dec. 5 (Bloomberg) -- Texas water regulators, petrochemical plants and lawyers for the last wild flock of whooping cranes are facing off today in a Texas courtroom over who has first rights to dwindling water from a drought-starved river.

The heart of the case is a river system stretching from near San Antonio, the ninth-fastest growing U.S. city, to a marshy bay favored by both petrochemical plants and waterfowl.

Environmentalists sued water regulators on claims they let industrial facilities, farms and cities suck the river so dry that not enough fresh water reaches the coastline. Their suit seeks a court-ordered plan to rebalance upstream and downstream usage regardless of pre-existing water contracts.

“If the whooping cranes win, it will cut the water supply by 50 percent’’ to industrial facilities and cities in this particular watershed, said William West, general manager of the Guadalupe-Blanco River Authority, which sells water rights along much of the channel. A study by the authority estimates the economic impact of such a reduction would top $6.7 billion over the next 50 years.

“With this lawsuit, some want the opportunity to go back and rewrite water permits people have built on and depended on all these years,’’ said Jerry James, environmental services director for Victoria, Texas, near the mouth of the Guadalupe.

Environmentalists’ demand for upstream users to sacrifice some of their water for those downstream amounts to an unconstitutional taking of private property without compensation, lawyers for Texas water regulators said in court filings.

1913 Code

Under the 1913 Texas Water Code, permits are granted on a first-come basis. The rights are perpetual, and the user with the most-senior water permit gets to take his entire allotment before more-junior permit holders get a drop.

Just upstream from the Aransas National Wildlife Refuge, the endangered whooping cranes’ winter home, five petrochemical plants are almost completely dependent on river water and face possible production cutbacks or closure if their rights are curtailed, lawyers for the Texas Chemical Council said in court papers. They warned that hundreds of jobs could be lost and billions of dollars in infrastructure idled with an adverse decision.

“It is impossible to operate an industrial facility without a specific, reliable water supply,’’ the chemical council’s lawyers told the judge last year. If the environmentalists succeed, “water rights and water supply regimes now in effect could be thrown into chaos.’’

Chemical Council

The Texas Chemical Council intervened in the lawsuit on behalf of more than 60 Texas chemical producers, including one the river’s largest water users, Dow Chemical Co.’s Seadrift plant, which was denied permission to join the litigation by itself.

The chemical council claimed in court filings that if U.S. District Judge Janis Graham Jack of Corpus Christi, Texas, who presides over this case, reshuffles water rights along the Guadalupe, water rights along other Texas rivers could also be challenged.

The Texas coastline from the cranes’ refuge eastward to the Louisiana border features the world’s largest concentration of petrochemical plants and refineries, almost of all of which rely on river water.

Texas agricultural interests tried unsuccessfully to intervene in the case, citing similar concerns about protecting agrarian river usage. In the case of some farms and ranches, these water rights date back to the settling of Texas in the 1840s.

Serious Drought

The last time Texas suffered a serious drought, in 2009, 23 cranes, or 8.5 percent of the Aransas flock, died from factors attributed to lack of fresh water in the marsh, according to the U.S. Fish and Wildlife Service.

Texas is currently suffering an even more severe drought, and wildlife managers are scrambling to create artificial ponds and feeding stations as the five-foot-tall cranes arrive at the refuge, located about 175 miles southwest of Houston.

“We’re not trying to give the cranes the most-senior water rights on the river,’’ Jim Blackburn, the lead environmental attorney in the case, said in an interview. “We just want to get them some water, because basically now they are at zero.’’

Permits held by cities and towns that rely on the Guadalupe and Blanco rivers for water supplies and hydroelectric power further complicate the calculus. More than a dozen communities and utilities filed papers expressing their concerns after Jack denied them permission to intervene.

Water Regulators

While industrial facilities, farmers and inland cities side with the state water regulators targeted in the lawsuit, coastal towns, seafood producers and tourism businesses have banded together on the side of the cranes.

These coastal interests claim their livelihoods also depend on enough fresh water reaching the coast to ensure healthy estuaries, which serve as nurseries for many types of fish, shrimp and waterfowl. When salinity levels rise too high in the marshes and bays, reproduction and survival rates plummet for many species, according to expert reports filed with the court.

After Jack blocked coastal interests from intervening in the case, many joined the Aransas Project, the environmental coalition that filed the challenge.

“Estuaries are the most productive zones on the planet -- the cradle of life -- and I think our cradle is being robbed,’’ said Charles Smith, a county commissioner in Aransas County, which backs the cranes in the litigation. “Environmental issues are economic issues to our county.’’

Jack began hearing testimony today without a jury in federal court in Corpus Christi. Lawyers in the case estimate the bench trial could last two to three weeks.

The case is The Aransas Project v Bryan Shaw, 2:10-cv-0075, U.S. District Court, Southern District of Texas (Corpus Christi).

--Editors: Peter Blumberg, Fred Strasser

To contact the reporter on the story: Laurel Brubaker Calkins in Houston at laurel@calkins.us.com.

To contact the editor responsible for this story: Michael Hytha in San Francisco at mhytha@bloomberg.net.


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