Experts Refute Alleged Whooping Crane Deaths

By Joel Williams

Did 23 whooping cranes really die as a result of the Texas drought of 2008-09?

Not so, say expert witnesses in a federal lawsuit who have filed reports stating that there is no evidence of such a die-off, and that the flock of majestic endangered birds that winters in Texas is actually thriving.

The Guadalupe-Blanco River Authority (GBRA) submitted the reports from several scientific experts in August in U.S. District Court in Corpus Christi, in response to a lawsuit filed last year by an organization called The Aransas Project (TAP). TAP alleges that Texas violated the federal Endangered Species Act (ESA) by not allowing enough fresh water to reach the San Antonio Bay ecosystem on the Texas Gulf Coast, where whooping cranes winter.

Endangered Species Act Claim

TAP's federal lawsuit alleges that the Texas Commission on Environmental Quality (TCEQ) violated the "taking" provision of Section 9 of the federal ESA. That provision prohibits a "take," which is any activity that kills or harms a listed species, or that destroys its habitat.

The TAP lawsuit contends that during the drought, a reduced amount of fresh water reaching the coastal marshes caused the salinity to rise so high that the wintering whooping cranes were unable to find sufficient food and water. The suit alleges that those conditions weakened the birds and led to the deaths of 23 whooping cranes. Despite the headlines of articles that spread across the country, only two to four birds are known to have died in Texas that winter, a number consistent with normal winter losses.

The case is set to go to trial on Dec. 2 in U.S. District Court in Corpus Christi. The deadline for dispositive motions, such as a motion for summary judgment, was Sept. 15 and the deadline for challenges to expert testimony was Sept. 30. Parties reported the results of a mediation conference Oct. 12 and discovery ended Oct. 31.

TAP seeks remedies that include extensive federal intervention in the way Texas manages its water resources.

Kathy Robb, an attorney working on behalf of GBRA on the case, said the lawsuit underscores two emerging legal questions under the Endangered Species Act:

• What is required to establish "take" under Section 9 of ESA?, and
• Can state regulators acting under state law, be the proximate cause of "take" under Section 9 of the ESA?

"The sweep of the complaint in The Aransas Project v. Shaw, et al, is outside the scope of permissible claims under ESA," Robb wrote in an article published earlier this year in The Water Report. "The remedies sought, if granted, would upend Texas's water regulatory scheme and profoundly affect the authority of states generally to issue water permits and regulate the use of their water.

"The lawsuit has no scientific basis," said William "Bill" E. West, Jr., GBRA's general manager.

"TAP has it all wrong on alleged whooping crane deaths in 2008-09 - all the information points to the fact that the flock is thriving," he said.

West also said that the effort to provoke a federal takeover of water management in Texas could have dire consequences in the region. Potential consequences include an end to new water permits, imposition of a whooping crane habitat conservation plan, reduced amounts of water diverted from rivers, new rules for timing diversions of existing water rights and possible impacts on management of groundwater from aquifers that contribute to the flow of the Guadalupe River.

Necropsy Evidence

Of the known whooping crane deaths from that winter, the evidence includes two carcasses and fragments of two other birds, noted Dr. Richard Stroud, a veterinary pathologist with more than 40 years' experience, who retired in 2009 after 19 years as the Veterinary Medical Examiner at the U.S. Fish and Wildlife Service's (USFWS) National Wildlife Forensic Laboratory in Oregon.

Stroud's experience includes performing the first two of the 11 known necropsies—medical examinations of animal carcasses to determine cause of death of whooping cranes at the National Lab. Over his career, he has testified as an expert on cause of death in 28 cases involving wildlife mortality of endangered species, mostly on behalf of the USFWS Division of Law Enforcement. Stroud's report stated that:

• The analysis of the available physical evidence from 2008-09, which is two intact whooping crane carcasses and fragments of two additional carcasses, does not support TAP's contention that the death or injury of any whooping crane in 2008-09 were caused by lack of adequate food or water.
• Whooping cranes have well-developed salt glands located above their eyes which rid their bodies of excess salt, making them capable of surviving in a salt marsh environment like many other marine adapted species.
• The most likely cause of death from the evidence is disease or predation or both. (One partial carcass was reported seen in the mouth of an alligator.)
• Trauma, such as shootings and collisions with structures, weather-related injuries, and exposure to toxins, infectious, bacterial, fungal, and viral disease, including from supplemental feeders providing corn, all are documented causes of crane mortality.
• Wildfire as the cause of death of animals and birds including the whooping cranes cannot be determined scientifically by merely observing, or in this case, not observing animals or from aerial survey counts.

GBRA's Stewardship

One of the unfortunate outcomes resulting from the filing of this case, explained Todd Votteler, Ph.D., GBRA's executive manager of Intergovernmental Relations and Policy, is that TAP has worked very hard to cast GBRA as 'anti-environmentalists,' when in reality, few other groups or agencies outside of the Fish and Wildlife Service and Texas Parks and Wildlife have done more to ensure the viability of the Aransas-Wood Buffalo whooping crane flock on their wintering grounds than GBRA and its affiliate organization, the Guadalupe-Blanco River Trust.

It was GBRA that initiated a multi-year study by Texas A&M on the needs of the whooping cranes that winter at San Antonio Bay. A summary of the findings of that important research can be viewed online at: http://www.gbra.org/documents/studies/sages/ExecutiveSummary.pdf.

Votteler, who also is executive director emeritus of the GBR Trust, said, "Over the past several years, the GBR Trust, supported by GBRA, has acquired several parcels of land that have been placed in conservation easements and ultimately may prove to be added habitat for this ever-growing natural flock," adding, "GBRA, the GBR Trust, the Fish and Wildlife Service and other partners constructed a 2.25-mile-long water supply canal to a unit of the refuge that benefits migratory waterfowl as well as whooping cranes."

GBRA also created the San Antonio Bay Foundation, an organization whose mission is to foster and steward the natural resources of the San Antonio Bay estuarine system for optimal benefit of marine life, coastal wildlife and the people who use it for recreation and their livelihoods.

And GBRA's efforts have been continuous, Votteler said, "Most recently, GBRA, the GBR Trust, the San Antonio Bay Foundation and Ducks Unlimited have signed a Memorandum of Understanding to collaborate on wetland habitat conservation and enhancement with a special emphasis on Calhoun and Refugio counties, which includes all of San Antonio Bay as well as the Guadalupe River Delta."

Aerial Survey Accuracy

The Aransas-Wood Buffalo whooping crane flock is making its nearly 2,500-mile trek from Wood Buffalo National Park in Alberta, Canada, to the Aransas National Wildlife Refuge in Texas. And again, the state is experiencing exceptional drought conditions. "Yet, signs indicate the flock is thriving," West said, adding, "This is why the experts have begun to pay more attention to the official flock counts and the way in which those counts are conducted."

Another respected biologist, Michael Conroy, Ph.D., who served as a statistician and wildlife biologist at the Patuxent Wildlife Research Center established by the USFWS, recognized as one of the premier installations in the world in the area of quantitative ecology, reported that:

• Estimates of whooping crane mortality from a periodic aerial survey of mostly unmarked birds are not valid, due to uncertainties in data resulting from possible bird movement and failure to detect all birds at each survey.
• Individual surveys cannot reliably estimate abundance, due to variations in survey conditions, bird movements, and other factors that are not accounted for in the aerial surveys.

Conroy later worked at the Cooperative Fish and Wildlife Research Unit at the University of Georgia in conjunction with the Department of the Interior, and is the author of three books and more than 135 scientific publications, including the standard reference books in the area of applied population modeling, statistical estimation, and adaptive management in natural resource.

He retired after 30 years of federal service in 2009 to become a senior research scientist at the Warnell School of Forestry and Natural Resources at the University of Georgia, and continues collaboration and consultation with the USFWS on statistically valid surveys of endangered species.

Adapting for Drought

Renowned avian ecologist Douglas Slack, Ph.D., who has studied cranes for more than 40 years and is co-author of at least 70 journal and symposium articles in his field, indicated in his report:

• The whooping crane is an opportunist omnivore with a broad winter diet in the Aransas National Wildlife Refuge that includes a variety of foods like snails, insects, blue crabs, worms, clams, wolfberries, and acorns, adapting diet choices to the food available.
• The high water content of the cranes' foods may provide all the water cranes need to meet their physiological needs, and it is not clear that cranes actually drink water at all.
• None of the expected signs of a flock in poor body condition due to winter food or water shortages, such as delayed winter migration, increased mortalities in the non-winter months and reduced reproductive success, occurred in the months following the 2008-09 winter. On the contrary, the flock had an early spring departure, record low reported mortality in the months following the winter, and near-record nesting levels in 2009. The flock successfully migrated the 2,500 miles to its summer location in Canada at the Wood-Buffalo National Park.
• The flock has exhibited exponential growth over the last seven decades, from a low of 15 individuals in Texas in 1941 to record reported 283 this last winter of 2011. The population has grown more in the last decade than in any previous decade. It is larger than any time in the past century. It clearly was not set back, as claimed, during the winter of 2008-09. At least 19 of the 23 reported mortalities of 2008-09 were simply undetected during aerial surveys due to frequent bird movements.

Slack retired in May as Regents Professor, Department of Wildlife and Fisheries at Texas A& M University, and has had leadership roles in The Wildlife Society and Audubon Texas, among many other awards and honors.

"GBRA is delighted that the whooping crane population continues to thrive and that the July 2011 U.S. Whooping Crane Coordinator report upgraded the status of the cranes to "stable," West said.

Economic Impacts

Regarding the economic impact of freshwater inflow requirements sought by TAP, David Sunding, Ph.D., Thomas J. Graff, Professor in the College of Natural Resources at the University of California at Berkeley, and co-director of the Berkeley Water Center, explained in his report that:

• Instream flow requirements of the sort proposed by TAP would have significant negative economic impacts for the Guadalupe and San Antonio River basin.
• The loss of water supply reliability resulting from the proposed instream flow requirements would cause more frequent water shortages and require construction of expensive water supply projects that otherwise would not be needed.
• Water shortages and extra water supply costs resulting from the proposed instream flow requirements would cost Texans an estimated $6.7 billion between 2010 and 2060.
• In the first three decades considered in the model (2010-2040), the largest losses occur in the electricity generating sector. Power generation would become less reliable as cooling water supplies become less reliable under the proposed flow requirements.

Sunding has served on the National Research Council and on the U.S. EPA's Science Advisory Board and has testified before the U.S. Congress and in litigation regarding the economics of natural resources and the environment.

Brian Perkins, a water resource engineer with HDR Engineering in Austin, focusing on the Guadalupe and San Antonio River basins and other basins in Texas, also reported negative economic consequences of the lawsuit's proposed remedies. His report indicated:

• Should a freshwater flow requirement be placed on the Guadalupe estuary that was senior to existing water rights, as requested by TAP, surface water supply for run-of-river rights (those with no storage associated with them) would essentially be zero during droughts.
• Such a proposed requirement would cut nearly in half the firm supply of water from Canyon Reservoir, the primary water supply reservoir in the river basin.
• Power electric generators that use the three major power plant cooling lakes, including Lake Braunig, Calaveras Lake, and Coleto Creek Reservoir, would be forced to shut down regularly due to the inability to divert make-up water during extended droughts.
• In addition, future proposed water projects in the 2011 South Central Texas Regional Water Plan that depend on surface water from the Guadalupe-San Antonio River basin as the primary source of water would not be viable if such a proposed requirement were imposed.

Perkins played a major role in creating the Flow Regime Application Tool in 2010, a daily simulation model used to apply complex environmental flow criteria to water supply projects to predict supply and downstream flows.