WyFB supports water rights through lawsuit – Oct. 11, 2011

The Wyoming Farm Bureau has joined with the Texas Farm Bureau, American Farm Bureau Federation, Oklahoma Farm Bureau Legal Foundation, Oregon Farm Bureau and California Farm Bureau in support of water rights through a friend of court filing.  The organizations filed an amicus brief Oct. 6, 2011 in support of the Texas Commission on Environmental Quality. 

The Aransas Project (TAP) filed suit in U.S. District Court on March 11, 2010 against the Texas Commission on Environmental Quality (TCEQ) alleging they are guilty of a “take” of Whooping Cranes under the Endangered Species Act (ESA).  According to Texas Farm Bureau Assistant General Counsel Regan Beck, TAP says that TCEQ did not properly manage water rights on the Guadalupe and San Antonio Rivers to allow enough freshwater flow for the Whooping Cranes during the winter of 2008 – 2009, and because of that mismanagement a number of Whooping Cranes died. 

“We are concerned this case might establish a precedent allowing interference with state water rights via the Endangered Species Act,” Ken Hamilton, Wyoming Farm Bureau executive vice president, said.  “Wyoming Farm Bureau members own and utilize private lands which rely upon water rights granted by the State of Wyoming, on a “first in time, first in right” basis, to help support their economic endeavors.”

Scientific data lacking

The amicus brief filing points out that The Aransas Project’s own witness states that no one knows the amount of freshwater inflow needed to sustain the Whooping Crane nor has anyone attempted to determine the amount of freshwater inflow required based on a scientific understanding of the biology of the Whooping Cranes.  Additionally, the TAP’s witness asks for all stakeholders to develop a management strategy through a Habitat Conservation Plan.

State strategy not required

The amicus brief points out the Endangered Species Act imposes no such burden on state agencies to devise and implement a strategy to provide freshwater inflows for the Whooping Cranes. 

“Even if the ESA imposed such a burden, the TCEQ lacks the authority to undertake or discharge such a burden—a circumstance which insulates State Official Defendants from both a finding that they have “taken” endangered species and imposition of the injunctive relief sought by TAP,” the organizations wrote in the amicus brief.

Standing up for water rights

“In this case the TAP cannot prove proximate cause because they don’t even know how much water is needed for whooping cranes,” Hamilton said. 

The potential negative effects on water rights of this lawsuit are many.  “I may sound like a broken record, but this is again another example of the flaws of the Endangered Species Act,” Hamilton stated.  “This is a case where a group is using the ESA without any scientific facts to take water rights away from their rightful owners.”

“Should this suit be successful, it will undermine one of the most fundamental principles in western water law and result in a massive regulatory taking of property rights,” Hamilton concluded.

The Wyoming Farm Bureau Federation is the state’s largest general agriculture organization. The primary goals of the organization are to protect private property rights and help members achieve an equitable return on their investment. 

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