Advocates Say Saving Matagorda Bay Could Take Legal Action

BAY CITY — More than 100 environmental advocates and fishermen along the Gulf Coast met Wednesday to discuss the uncertain future of Matagorda Bay, a major destination for tourism, recreation and commercial fishing that has suffered greatly in recent years due to a lack of freshwater inflows from the Colorado River.

Their conclusion: Saving the bay will require tremendous political pressure on the Lower Colorado River Authority and the Texas Commission on Environmental Quality — the agencies chiefly responsible for managing water resources in the Colorado River basin. And if that doesn’t do the trick, a lawsuit might.

“My community is very good about a call to action on this,” said Mitch Thames, president of the Bay City Chamber of Commerce and Agriculture. “These individuals are hungry.”

Thames said Bay City’s economy has been a “roller coaster” in recent years. The city’s once-thriving shellfish industry is dependent on healthy oysters, crabs and shrimp in Matagorda Bay. But the water is now too salty in many parts of the bay to allow shellfish to thrive, because the LCRA has hardly released any freshwater into it during the past several years of Texas’ prolonged drought. By some estimates, the bay is 456 billion gallons short of freshwater.

The LCRA argues that its first priority is to protect Colorado River users in Central Texas, including the city of Austin. Because the reservoirs serving Austin are only about one-third full, the LCRA says, freshwater must be kept there instead of being released downstream for Matagorda Bay.

Attendees at Wednesday's meeting strongly disagreed. Audience members collectively gasped when Pete Schenkkan, an Austin-based lawyer who has worked on environmental regulatory cases, told them that close to half of municipal water use for LCRA customers went to lawn-watering in 2011.

Austinites have only been allowed to water their lawns once a week since last year, but the city has only started to issue fines for violations in the past three months.  

Schenkkan said advocates for the bay should call for stricter prohibitions against outdoor water use. “We’re not proposing anything radical,” he said. “We would go all the way to zero [tolerance for lawn-watering] if we needed to save drinking water. So what could we do" for the bay? 

It won’t be easy for Bay City, a town of about 17,500 people that lost residents in the most recent census count, to match the political heft of Texas’ booming capital. Austin officials say the city has already reduced its water consumption to the point where residents would not be forced to cut back even if local reservoirs dip below 30 percent of their capacity, which is expected to happen next year. State Sen. Troy Fraser, R-Horseshoe Bay, has said he is furious that the LCRA is releasing any water to the bay at all. And the agency’s staff recently recommended making it easier to cut off water for coastal rice farmers, who are also an important part of Bay City’s economy.

So Jim Blackburn, an environmental lawyer based in Houston, suggested another option: a federal lawsuit. “It’s a tool of last use," he told the audience, "but it may be all we have."

Blackburn has experience in this realm. He's the chief lawyer for the advocacy group The Aransas Project, which has sued the TCEQ and the Guadalupe-Blanco River Authority for failing to provide enough flows to San Antonio Bay to protect whooping cranes, which depend on freshwater flows to survive. A ruling from the 5^th Circuit Court of Appeals is imminent and could have major implications for water law nationwide.

The plight of the whooping cranes is similar to that of the shellfish in Matagorda Bay, Blackburn argued. The only difference is that whooping cranes are rare birds that are afforded special protection under the federal Endangered Species Act. 

But it turns out that Matagorda Bay has endangered species of its own: the Kemp’s ridley sea turtle, which is protected by both the U.S. and Mexican governments under a binational conservation plan. Like whooping cranes, the turtles prefer blue crabs, which have been in short supply due to lack of freshwater.

Thames, of the Bay City Chamber of Commerce, said he didn’t want to consider a lawsuit anytime soon. “That’s premature,” he said.

Schenkkan, the Austin-based lawyer, also emphasized that court action should be a last resort. He urged the audience to try and shame Austinites into conserving more water first. The city is known for its environmentally friendly attitude, Schenkkan said — but when it comes to conserving water, “that is not true.”

The LCRA will discuss future plans for drought management at a board meeting next week.