Full opinion text
MEMORANDUM OPINION AND VERDICT OF THE COURT JANIS GRAHAM JACK, Senior District Judge. This case was tried to the Court over an eight-day period on December 5, 6, 7, 8, 9, 13, 14, and 15, 2011. As required by Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law thereon. Table of Contents I. INTRODUCTION.......................................................722 II. STATUTORY FRAMEWORK.............................................726 A. The Endangered Species Act..........................................726 1. ESA § 9 prohibits “takes” of endangered species.....................726 2. ESA § 10 addresses incidental takes................................727 III. FINDINGS ON STANDING AND JURISDICTION.........................727 A. Standing............................................................727 1. Injury in fact....................................................728 2. Redressability ...................................................729 3. Causation.......................................................730 B. Burford abstention...................................................731 1. Senate Bill 3.....................................................733 2. Texas surface waters..............................................737 IV. FINDINGS ON CAUSATION.............................................744 A. Court’s findings as to witness expertise and credibility....................744 B. TCEQ’s water diversions reduce freshwater inflows to the Refuge..........745 1. Trungale established permitted water diversions lower inflows to Refuge........................................................745 2. Trungale’s findings anticipated.....................................747 3. Dr. Ward’s modeling not reliable...................................748 4. Dr. Montagna’s observations and studies confirmed Trungale’s modeling......................................................749 5. Dr. Davis’ modeling...............................................751 C. Higher salinities adversely affect blue crabs and wolfberries...............752 1. Dr. Montagna on salinity preferences of blue crabs ...................752 2. Dr. Miller’s blue crab data.........................................753 3. Wolfberry production.............................................754 4. Observations and measurements concerning blue crab abundance and wolfberry availability in 2008-2009 ............................ 754 D. Statistical modeling confirms higher salinities are associated with higher crane mortality on the Refuge.................................754 E. At least 23 Whooping Cranes died on the Refuge in 2008/2009 .............756 1. Counting cranes is rooted in crane behavior..........................757 2. Tom Stehn determined peak population numbers for the USFWS.....758 3. Crane mortality counts............................................760 4. Defendants’and intervenors’objections to mortality counts............762 F. Food stress caused the death of at least 23 cranes........................764 1. Necropsy findings................................................764 2. Opinions of the crane experts......................................764 3. Defendants and intervenors failed attempt to disprove food stress was cause of cranes’ death.......................................766 (a) Dr. Stroud...................................................766 (b) Dr. Slack....................................................767 (c) Dr. Porter...................................................768 G. Motion to reopen and the Abundance Survey............................769 1. Population versus mortality........................................769 2. Information in Abundance Survey conflicts with trial evidence..........770 (a) Territoriality.................................................770 (b) Peak Abundance..............................................771 (c) The Abundance Survey is preliminary...........................772 (d) No underlying data ...........................................773 (e) Error rate of the Abundance Survey is unacceptable...............774 IV. INJUNCTIVE AND OTHER RELIEF ....................................775 A. The ESA allows for injunctive relief, and provides for a relaxed standard in granting it..............................................775 B. An ITP is an appropriate remedy in this case............................776 1. Dr. Sunding’s economic analysis....................................779 IV. COURT’S ADDITIONAL FINDINGS OF PACT............................780 V. COURT’S CONCLUSIONS OF LAW......................................782 VI. DECLARATORY RELIEF, ITP, AND HCP ORDERED.....................788 COURT’S EXHIBIT 1: MAP OF AWB CRANES’ HABITAT........................790 I. INTRODUCTION. In the annals of conservation, the return of the Whooping Crane from the brink of extinction is one of the most fabled stories. In the 1940’s, less than fifteen of these remarkable birds — the tallest in North America and the rarest species of crane in the world — remained. With the creation of wildlife refuges and other conservation efforts, the population of the birds has slowly risen to, including both those in captivity and those not in captivity, to around 500 birds. At issue here is the threat of extinction to the non-captivity population of around 300. However, the “whoopers” are still at risk, as development and environmental issues continue to threaten their habitat. This case concerns the world’s only self-sustaining, wild Whooping Crane population, known as the “AWB” flock, and its winter home in South Texas at the Aransas National Wildlife Refuge (the “Refuge”), and surrounding estuarine areas that comprise the AWB cranes’ critical winter habitat. The AWB cranes normally begin to arrive at their winter habitat in late October, and depart in early April of the following year. The Aransas Refuge is located midway along the Texas Gulf coast, about 140 miles south of Houston and 50 miles north of Corpus Christi. The cranes’ wintering grounds are comprised of approximately 9,000 hectares of salt flats on the Refuge itself and also on adjacent islands, including the Blackjack Peninsula, San Jose Island, and Matagorda Island. The area is bordered on the east by the Gulf of Mexico, receiving daily impulses of salt water with the changing of the tides. The Refuge receives freshwater inflows from primarily two river sources, the San Antonio and the Guadalupe, each located to the north and slightly west of the area. The San Antonio river flows into the Guadalupe river system, and the Guadalupe river flows directly into the Refuge, emptying into the San Antonio bay. The area where the freshwater enters the Refuge is referred to correctly as the “Guadalupe estuary,” but it is known also as the “San Antonio bay.” The San Antonio and the Guadalupe river systems emerge from underground springs near San Antonio and run 250 miles southeast where they join together just before entering the San Antonio bay and flow into the AWB flock’s winter habitat, that extends slightly north of the Refuge. These freshwater inflows come from a combination of spring flows and rainfall. Id. Whooping Cranes face extinction. Indeed today, it is estimated that only 500 Whooping Cranes exist worldwide. In 1967, the United States listed the Whooping Crane as threatened with extinction, 32 Fed.Reg. 4001 (Mar. 11, 1967), and in 1970, they were listed as endangered, 35 Fed. Reg. 16047 (Oct. 13, 1970). In 1973, both of these classifications were “grandfathered” into the Endangered Species Act. 16 U.S.C. § 1531 et seq., 87 Stat. 884. Beginning in 1950, the United States Fish & Wildlife Service (USFWS) employed aerial surveys to provide an annual census of how many AWB cranes arrived at the Refuge in the fall, and how many departed in the spring. Mr. Tom Stehn, a USFWS biologist, worked at the Refuge for over 29 years, and personally developed and implemented a method to count the individual birds of the AWB flock utilizing the cranes’ well-documented behaviors of site fidelity, site tenacity, and crane territoriality. Because specific birds returned to their specific locations, Mr. Stehn was able to map their territories and to confirm their presence or absence with weekly aerial surveys. Based on his intimate knowledge of the AWB crane and his mapping of their territories, Mr. Stehn concluded that, at the start of the 2008 winter season, the AWB flock had grown to its peak number of 270 birds, plus or minus 2 to 3 percent. During the 2008-2009 winter, there was a severe drought. As the winter progressed, the AWB cranes began to demonstrate unusual behavior. For example, parents would deny their juveniles food, and the birds began venturing out of their specific territories in search of food and fresh water. When the cranes first arrive at the Refuge, it is normal for the parents to feed the juvenile. The juveniles’ beaks are soft and tender, and it is necessary for the parent to break the shell and feed the crab to the begging juvenile. As the winter progresses, the parent pulls the crab from the water, kills it, and leaves it for the juvenile. During the 2008-2009 winter, Dr. Chavez-Ramirez observed a parent aggressively pushing his juvenile away from a crab that had been caught. He had never seen a parent deny food to a begging juvenile. Such behavior indicates that the parent was under food stress. The birds’ behavior was so alarming that Mr. Stehn contacted Dr. Chavez-Ramirez, a biologist with two decades of field research on the AWB cranes and a member of the International Whooping Crane Recovery Team, and asked him to visit the Refuge and observe the cranes. Dr. Chavez-Ramirez was equally troubled and concerned with his observations of the cranes’ behavior. Both he and Mr. Stehn observed that the lack of freshwater inflows had increased salinities across the Refuge. These hyper-saline conditions, verified by field measurements, led to a decrease in blue crabs and wolfberries, the staple diet of the AWB flock. This food shortage led to bird emaciation, stress behavior, and an over-all decline in bird health. That is, without proper freshwater inflows, the AWB’s critical habitat had been thrown out of balance, with ramifications up and down the food chain. That winter, at least 23 AWB cranes, or 8.5% of the AWB flock, died at the Refuge. Another 34 birds that left Texas in spring, failed to return in fall. After news of the high crane mortality in the 2008-2009 winter became known, certain environmentalists, local coastal business owners, bird enthusiasts, and others formed “The Aransas Project,” (“TAP”), a Texas nonprofit corporation. The TAP members have a direct interest in the AWB Whooping Cranes and the ecological health of the San Antonio, Carlos, Mesquite, and Aransas bays that connect to the Refuge. The State of Texas owns its surface water, and this includes the water in the Guadalupe and the San Antonio River systems. Under Texas law, freshwater capture and use is regulated by the Texas Commission on Environmental Quality (TCEQ), a State agency. Through its permit process and regulatory powers, the TCEQ can affect the availability of freshwater to users along the river system. Prior to filing this lawsuit, TAP petitioned the TCEQ for a water permit to require a certain amount of freshwater to remain instream in the Guadalupe and San Antonio river systems to ensure that sufficient amounts of freshwater reached the Refuge and surrounding areas adjacent to the San Antonio bay that comprise the critical habitat of the AWB cranes. TAP’s permit request was denied, and on December 7, 2009, TAP gave notice of its intent to sue. On March 10, 2010, TAP filed this lawsuit alleging that the TCEQ defendants had violated Section 9 of the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., by failing to properly manage freshwater inflows into the San Antonio and Guadalupe bays during the 2008-2009 winter, causing an unlawful “take” of AWB cranes. (D.E. 1). TAP maintains that the TCEQ defendants’ water management practices during 2008-2009, combined with the severe drought, drastically modified the AWB cranes’ critical habitat making it hyper-saline. In turn, the hyper-saline conditions caused a reduction in the availability of wolfberries and blue crabs, the cranes’ primary food resources, as well as in fresh drinking water. The lack of food and freshwater caused the cranes to become emaciated and to engage in stress behavior. Emaciation led to increased illness and disease susceptibility, and the cranes’ unusual stress behaviors, including leaving the safety of their site territories, contributed to increased predation. In total, the adverse modification of the cranes’ critical habitat effectively caused the death of at least 23 Whooping Cranes that winter season, constituting a “take” under the ESA. TAP named as defendants TCEQ officials Bryan Shaw, Buddy Garcia, Carlos Rubinstein, and Mark Vickery, and also, the South Texas Watermaster, A1 Segovia. The Guadalupe-Bianco River Authority (GBRA) was granted leave to intervene. (D.E. 31, 35). Numerous other parties sought leave to intervene: Union Carbide Corporation (D.E. 45); Texas Farm Bureau (D.E. 51); Texas Chemical Council (D.E. 53); San Antonio Water System (D.E. 59); San Antonio City Public Service (D.E. 70); and the San Antonio River Authority (SARA) (D.E. 110). The Court granted Texas Chemical Council’s motion to intervene, but denied the others. (D.E. 86, 112). On appeal, the Fifth Circuit allowed the intervention of the SARA, but affirmed the denial of intervention of the other parties. (D.E. 182, 183). Through this lawsuit, TAP is requesting declaratory and injunctive relief to ensure that the AWB flock has sufficient water resources to prevent future “takings.” (D.E. 1 at 32-33). II. STATUTORY FRAMEWORK. A. The Endangered Species Act. Enacted in 1973, the Endangered Species Act (“ESA”) is an attempt to prevent the further elimination of animal species in the United States and to help those animal populations to increase. See 16 U.S.C. § 1531 et seq. The ESA’s stated purposes are “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved ... [and] to provide a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). The plain intent of Congress in enacting this statute was “to halt and reverse the trend towards species extinction, whatever the cost.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). 1. ESA § 9 prohibits “takes” of endangered species. Under the ESA, the Secretary of the Interior (“Secretary”) is required to promulgate regulations listing those species of animals that are “threatened” or “endangered” under specified criteria, and to designate their “critical habitat.” 16 U.S.C. § 1533. Section 9 of the ESA prohibits “takes” of all listed endangered species. 16 U.S.C. § 1531(a)(4)(B); 50 C.F.R. § 17.31; 55 Fed.Reg. 26114 (June 26, 1990). The term “take” is defined as actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” a protected species. 16 U.S.C. § 1532(19). The term “harm” includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). The term “harass” means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. Congress intended to define “take” in the “broadest possible manner to include every conceivable way” in which any person could harm or kill wildlife. S.Rep. No. 307, 93rd Cong., 1st Sess. 1, reprinted in 1973 U.S.Code Cong. & Admin. News 2989, 2995. In this case, the crux of TAP’s argument is that the TCEQ’s actions and inactions in managing water diversions along the San Antonio and Guadalupe River systems caused “harm” to the endangered Whooping Cranes, by actually injuring and killing 23 birds. 50 C.F.R. § 17.3 (the “harm” regulation). The ESA’s prohibition against “takes” governs both the actions, and failure to act, by all “persons,” including any “officer, employee, agent, department, or instrumentality of ... any State.” 16 U.S.C. § 1532(13). The ESA prohibitions apply to actions by state agencies where their regulatory programs approve actions by third parties that contribute to causing the take. E.g., Animal Welfare Inst. v. Martin, 623 F.3d 19 (1st Cir.2010) (citizens could challenge Maine’s authorization of foothold traps that harmed lynx); Strahan v. Coxe, 127 F.3d 155 (1st Cir.1997) (challenging Massachusetts’ licensing of gill-net and lobster pot fishing as harming northern Right Whale); Loggerhead Turtle v. County Council of Volusia County, 148 F.3d 1231 (11th Cir.1998) (ESA applies to citizen’s challenge of county’s refusal to ban beach driving during sea turtle nesting season); and Defenders of Wildlife v. EPA, 882 F.2d 1294 (8th Cir.1989) (challenging EPA and Secretary of Interior’s permitting of strychnine pesticides and rodenticides). Section 9 prohibits indirect as well as deliberate “takes” of endangered species. Babbitt, 515 U.S. at 700, 115 S.Ct. 2407; Strahan, 127 F.3d at 163. Ordinary requirements of proximate causation apply. Babbitt, 515 U.S. at 700, n. 13, 115 S.Ct. 2407 (O’Connor, J., conc.); see also Loggerhead Turtle, 148 F.3d at 1251 n. 23 (“proximate cause is not the same thing as a sole cause,” citing Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1399 (11th Cir.1994)). In fact, this Court has previously recognized in this case that proximate cause exists where a defendant government agency authorized the activity that caused the take. (See D.E. 270, 835 F.Supp.2d at 263-64). 2. ESA § 10 addresses incidental takes. Following the ESA’s enactment, it became apparent that certain activities might result in an unintended take of an endangered species. For example, clearing certain acreage for development might destroy the habitat of a protected species of bird. Thus in 1982, Congress amended the ESA to authorize the issuance of permits allowing the take of a protected species if the take is incidental to otherwise lawful private actions. 16 U.S.C. § 1539(a). Section 10 of the ESA provides, “The secretary may permit, under such terms and conditions as he shall prescribe,” any incidental taking otherwise prohibited by Section 9 that will not “appreciably reduce” 'the likelihood that the species will survive and recover. 16 U.S.C. § 1539(a)(1)(B), 2(B). A Section 10 “Incidental Take Permit” (“ITP”) is issued by the USFWS after development and submission of a Habitat Conservation Plan (“HCP”), which must be approved by the USFWS. 16 U.S.C. § 1539(a)(2)(A); (B). The HCP must include conservation measures designed to minimize and mitigate the impacts of taking species listed under the Act. 16 U.S.C. § 1539(a)(2)(A)(ii). In the absence of an ITP or other exemption, the ESA forbids each and every take. 16 U.S.C. § 1538(a)(1). Recognizing that some human activities will necessarily encroach upon wildlife, and in some instances, involve endangered species, ESA § 10 offers a method by which the developer, applicant or entity works with the USFWS to anticipate the impact of their actions and to minimize the potential take of an endangered species. Here, TAP is asking the Court to order the TCEQ defendants to apply for an ITP, thus acknowledging that their permit process and water enforcement actions, especially in times of drought, alter the critical habitat of the AWB cranes and can lead to a “take” of these endangered birds. Once the ITP is filed, ESA § 10 requires TCEQ defendants to work with the USFWS to formulate a Habitat Conservation Plan based on the best science available. III. FINDINGS ON STANDING AND JURISDICTION. A. Standing. The ESA expressly authorizes citizen suits against any “person” alleged to be responsible for a “take.” The ESA provides that any person may commence a civil suit on his own behalf — (A) to enjoin any person, including the United States and its agencies, who is alleged to be in violation of ESA provisions or regulations; (B) to compel the Secretary to enforce the provisions concerning the taking of any resident endangered species or threatened species within any State; or (C) against the Secretary where there is an alleged failure of the Secretary to perform any nondiscretionary act or duty. 16 U.S.C. § 1540(g)(1); see also Tennessee Valley Auth., 437 U.S. at 184, 98 S.Ct. 2279; Defenders of Wildlife v. Bernal, 204 F.3d 920, 925 (9th Cir.2000). The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any ESA provision or regulation, or to order the Secretary to perform such act or duty, as the case may be. 16 U.S.C. § 1540(g). Although the ESA provides for citizens suits, the ESA plaintiff must satisfy the jurisdictional requirements of standing. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). To satisfy the “case” or “controversy” requirement of Article III, which is the “irreducible constitutional minimum” of standing, a plaintiff must, demonstrate that he has suffered: injury in fact; that the injury is “fairly traceable” to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). 1. Injury in fact. In this case, the TCEQ defendants, GBRA, and SARA, have consistently challenged TAP’s standing to sue. (See D.E. 213, 214, 215). In its December 5, 2011, 835 F.Supp.2d 251 (S.D.Tex.2011), Order denying TCEQ defendants’ and intervenor’s motion for partial summary judgment (D.E. 270), the Court found that TAP had satisfied the standing elements of injury in fact and redressability. Id. at 258-60. As to the injury requirement, the Court noted that many of the TAP members reside and work in the Aransas area and, for some, their livelihood depends in large part on the AWB cranes. (D.E. 270, 835 F.Supp.2d at 258-59). Indeed, the tourism economy of the area relies on the annual migration of the Whooping Cranes to the nearby Refuge. This finding was reinforced by testimony at trial. For example, TAP member Albert Johnson is the proprietor of The Crane House, a small home that is rented to tourists, photographers, and naturalists that come specifically to observe the Whooping Cranes. (Johnson, Day 4, Tr. 182-183). TAP member Ray Kirkwood works as the narrator on the Wharf Cat, a boat that tours the Aransas Refuge, allowing visitors to observe a healthy, active estuarial system, and the AWB Whooping Cranes in their winter home. (Kirkwod, Day 4, Tr. 136, 141, 146-148). Aransas County Judge Burt Mills testified that the AWB flock has always been an important aspect of the tourist industry for Aransas County. (Mills, Day 4, Tr. 108, 117). In addition, the Court found that many of TAP’s members are active birders and devote substantial time and effort to observing Whooping Cranes and other birds in their natural habitat. (D.E. 270, 835 F.Supp.2d at 258-59). At trial, Deborah Corpora, a Rockport birder, testified as to the pleasures of watching the Whooping Cranes at the Aransas Refuge. (Corpora, Day 3, Tr. 154-170). The evidence was uncontested that TAP members had aesthetic, recreational, economic, professional, and other interests in photographing, studying, protecting and otherwise enjoying the AWB cranes in their natural environment. (D.E. 270, 835 F.Supp.2d at 258-59). The Supreme Court has recognized that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons “for whom the aesthetic and recreational values of the area will be lessened” by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Fewer AWB cranes would adversely affect the tourism, visual observation, and recreational enjoyment of TAP members. Thus, TAP successfully demonstrated that its members were “among the injured” for purposes of standing. Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130. 2. Redressability. In denying TCEQ defendants’ and GBRA’s motion for partial summary judgment, the Court previously found that TAP had also established redressability. (D.E. 270, 835 F.Supp.2d at 259-61). To establish redressability, it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc., 528 U.S. at 181, 120 S.Ct. 693. The relevant question is simply, “whether a plaintiff personally would benefit in a tangible way from the court’s intervention.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 n. 5, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotation marks omitted). “When ... a plaintiffs asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else ... causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction-and perhaps on the response of others as well.” Lujan, 504 U.S. at 562, 112 S.Ct. 2130. In their motion for partial summary judgment, and again at trial, the TCEQ defendants argued that they lacked the authority or the power to control the activities of permitted water right users and Domestic and Livestock (D & L) water right owners. (D.E. 214). GBRA argued that, even if the TCEQ defendants did have the authority to alter the issuance of new or existing water permits, such an action would not noticeably affect freshwater flows to the Aransas Refuge such that any ordered relief would be “pointless.” (D.E. 215). The Court rejected those arguments pretrial finding that, based on the summary judgment evidence alone, the TCEQ defendants have the authority over water permits and water diversions. (D.E. 270, 835 F.Supp.2d at 260-61). At trial, witnesses for TAP established that the TCEQ defendants have the plenary authority to implement Texas laws and to fulfill federal law, and more particularly, the ESA, and that declaratory and injunctive relief would most certainly help the AWB flock. With respect to declaratory judgments, the Supreme Court has stated, “the question ... is whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests, or sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). TAP seeks a declaration that the TCEQ defendants have violated ESA Section 9 in the past and are presently violating Section 9 by issuing water permits and authorizing diversions, as well as a declaration that water diversion regulations are preempted by federal law when they purport to allow activities that result in the taking of Whooping Cranes. (D.E. 1 at 32, ¶¶ A, B, C). Such a declaration would assist TAP in its overall goal of developing a plan to protect the AWB flock. TAP has requested injunctive relief. (D.E. 1 at 32-33, ¶ ¶ D, E). At trial, the Court heard testimony from TCEQ officials including Mark Vickery, a former TCEQ Executive Director, who testified that the TCEQ has the authority to issue or deny a permit, or to impose conditions on the permit. (Vickery, Day 4, Tr. 205). Indeed, the TCEQ has the “continuing right of supervision of State water resources.” Id. Tr. 204. The Court rejects the TCEQ defendants’ arguments that they are essentially powerless to regulate water resources in the manner TAP suggests. An injunction preventing new approvals of permits until there are “sufficient assurances” that these permits will not result in harm to the Whooping Cranes could effectively redress TAP’s concerns regarding freshwater inflows to the Refuge for the benefit of the AWB flock. Finally, as to TAP’s request for development of an HCP and the issuance of an ITP under 16 U.S.C. § 1539(a)(2), this too would redress TAP’s injury. The Supreme Court has rejected overly “draconian interpretation[s] of the redressability requirement.” Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). A plaintiff “satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Id. At trial, TAP’s experts offered several proposals to prevent future takings of Whooping Cranes. TAP has satisfied the standing requirement of redressability. 3. Causation. As to the third element of standing, causation, the Court found prior to trial a relationship between the TCEQ defendants’ water management practices and the freshwater flows to the Aransas Refuge. (D.E. 270, 835 F.Supp.2d at 261-65). However, as to the second aspect of causation in this case, namely, TAP’s allegation that low freshwater flows caused the deaths of at least 23 Whooping Cranes in 2008-2009, the Court concluded that material issues of fact remained. Id. at 264-65. The federal courts have found causation where there has been a direct relationship between the challenged government regulation and the resulting “take.” For example, in Loggerhead Turtle v. County Council of Volusia County, plaintiffs sued Volusia County, alleging inter alia, that its refusal to ban beachfront artificial light sources (cars), adversely impacted the loggerhead turtle, resulting in a taking in violation of ESA Section 9. 148 F.3d at 1234-35. The Eleventh Circuit found the plaintiffs had standing, and had sufficiently alleged causation based upon the lack of regulation, “even though the actions or inactions of those third parties not before the court may be another cause of the harm.” 148 F.3d at 1253 (internal citations and quotation marks omitted). Similarly, in Strahan v. Coxe, the district court found sufficient causation between harm to the endangered northern Right Whale and governmental regulation of commercial fishing vessels and whale-watching vessels in Massachusetts waters. The court explained: Indisputably, the actions of third parties not before the court — commercial fishing and whale watch operations — are the immediate cause of the harm to endangered whales alleged here. Defendants do not place gillnets and lobster gear in coastal waters, nor do they operate whale watch vessels. Nevertheless, the actions of these third parties are dependent on the actions of the Defendants. Fishing vessels cannot, legally, place gillnets and lobster gear in Massachusetts waters without permission from the Defendants. And whale watch vessels cannot, legally, approach within 500 yards of Right whales in Massachusetts waters without permission from the Defendants. Thus, to the extent that he challenges the operations of licensed commercial fishing and whale watch vessels, Strahan has shown a causal connection between the injury he has suffered (and will continue to suffer) and the actions of the Defendants in issuing such licenses. Strahan v. Coxe, 939 F.Supp. 963, 978-79 (D.Mass.1996) (emphasis added); see also Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C.Cir.2008) (in suit against Coast Guard alleging violations of ESA Section 9 due to establishment and maintenance of shipping lanes in areas inhabited by right whales, court rejected argument that chain of causation was too attenuated); Seattle Audubon Soc’y v. Sutherland, 2007 WL 1300964 (W.D.Wash. May 1, 2007) (finding sufficient causation between state agency regulation over logging and taking of spotted owls, explaining, “[t]he alleged destruction of spotted owl habitat on private lands is fairly traceable to State Defendants’ actions because State Defendants enforce the rules governing such logging operations and the independent logging operators cannot conduct Class III applications on their private lands without the authorization of the Department.”). As will be discussed in the Findings below, at trial TAP offered essentially uncontroverted evidence to establish: (1) the TCEQ defendants are responsible for water permitting and water diversions from the San Antonio and Guadalupe River systems, and the increased water diversions have left less water for the cranes; (2) reduced water flows lead to high bay/estuary salinities (in excess of 30 to 40 ppt in wide spread sampling); (3) high San Antonio bay/Guadalupe estuary salinities lead to a reduction in the availability of wolfberries, blue crabs, and fresh drinking water; (4) the reduced availability of the cranes’ primary food sources, coupled with the expenditure of more energy to fly farther to search for food and freshwater, leads to malnourishment and death; and (5) TCEQ defendant’s water practices caused the death of at least 23 whooping cranes in the 2008-2009 winter. That is, the mortality of the Whooping Crane population is directly attributable to the lack of freshwater inflows to these crucian estuaries. B. Burford abstention. In both their pre- and post-trial briefings, defendants and intervenors have requested that the Court abstain from adjudicating this case pursuant to the Supreme Court’s holding in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (“Burford abstention”). In Burford, the Supreme Court affirmed a district court decision dismissing an action in which the Sun Oil Company challenged a Texas Railroad Commission order granting Burford a permit to drill certain oil wells. 319 U.S. at 316-17, 63 S.Ct. 1098. The competing drilling interests plus the State’s regulatory powers of oil and gas conservation all came into play. Id. at 318, 63 S.Ct. 1098. Recognizing the significant state regulatory framework, the Court concluded that federal court abstention was proper. The Court reasoned: The state provides a unified method for the formation of policy and determination of cases by the Commission and by the state courts. The judicial review of the Commission’s decisions in the state courts is expeditious and adequate. Conflicts in the interpretation of state law, dangerous to the success of state policies, are almost certain to result from the intervention of the lower federal courts. On the other hand, - if the state procedure is followed from the Commission to the State Supreme Court, ultimate review of the federal questions is fully preserved here. Under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand. Bwrford, 319 U.S. at 333-34, 63 S.Ct. 1098. The Fifth Circuit has explained that, “Burford abstention applies when a case involves a complex issue of unsettled state law that is better resolved through a state’s regulatory scheme.” Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 272 (5th Cir.2009) (citing Burford v. Sun Oil Co., 319 U.S. 315, 332, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)). As part of its Bwrford abstention analysis, a court must consider five factors: (1) whether the cause of action arises under federal or state law; (2) whether the case requires inquiry into unsettled issues of state law or into local facts; (3) the importance of the state interest involved; (4) the state’s need for a coherent policy in that area; and (5) the presence of a special state forum for judicial review. Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 272 (5th Cir.2009) (citing Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir.1993)). Burford abstention represents “an extraordinarily and narrow exception to the duty of the District Court to adjudicate a controversy properly before it.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727-28, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 313 (5th Cir.1993) (explaining that abstention remains the exception, not the rule). The “federal courts’ obligation to adjudicate claims within their jurisdiction [is] virtually unflagging.” New Orleans Public Serv., Inc. v. Council of City of New Orleans, (“NOPSI"), 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). The most important aspect of Bwrford is whether there exists a state process to which a federal court might abstain. That is, there must be “time and adequate state-court review” available. NOPSI, 491 U.S. at 360, 109 S.Ct. 2506. Additionally, the NOPSI court underscored “[w]hile Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is ‘potential for conflict’ with state regulatory law or policy.” Id. at 362, 109 S.Ct. 2506 (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 815-16, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). In arguing for abstention, defendants and intervenors rely on the Fifth Circuit’s decision in Sierra Club v. City of San Antonio, 112 F.3d 789 (5th Cir.1997), an ESA case involving water withdrawals from the Edwards Aquifer that affected an endangered species, the fountain darter. Id. at 791. The district court issued an ESA injunction ordering the water officials to limit pumping from the Edwards Aquifer based on spring flows. Id. The injunction was to remain in effect until the defendants demonstrated a water management plan that would preserve the fountain darter, and defendants were further ordered to supply the court and a special master with monthly water usage information. Id. On appeal, the Fifth Circuit held that the lower court erred by issuing an injunction finding that the case was not likely to succeed on the merits due to Burford. The Fifth Circuit noted the need for “uniform regulation” in the state regime governing water withdrawals, and found that the legislation in place, the “Edwards Aquifer Act,” could “fairly be characterized as a comprehensive regulatory scheme. It represents a sweeping effort by the Texas Legislature to regulate the aquifer with due regard for all competing demands for the aquifer’s water.” Sierra Club, 112 F.3d at 794. 1. Senate Bill 3. The TCEQ defendants, GBRA, and SARA argue that abstention is warranted in this case because the State of Texas now has in place a comprehensive regulatory scheme, Senate Bill 3 (S.B.3), that regulates the State’s surface water flows. See Tex. Water Code § 11.1471, Environmental Flow Standards and Set-Asides (2007). The TCEQ and GBRA argue that S.B.3 addresses a number of environmental issues, including endangered species, and attempts to present a comprehensive state regulatory scheme such that federal abstention is mandated. TCEQ defendants and GBRA maintain that federal intervention would disrupt the S.B.3 process and undermine the State’s efforts to manage its surface waters. In 2001, the 77th Texas legislature passed Senate Bill 2, which directed the TCEQ, the Texas Water Development Board (TWDB), and the Texas Parks and Wildlife Department (TPWD), in cooperation with other agencies, “to ... jointly establish and continuously maintain an in-stream flow data collection and evaluation program.” Texas Water Code (TWC) § 16.059. In addition, the agencies were directed to “... conduct studies and analyses to determine appropriate methodologies for determining flow conditions in the state rivers and streams necessary to support a sound ecological environment.” Id. In 2007, the Texas legislature passed S.B.3, establishing the Environmental Flows Allocation Process, also known as “E-flows,” to address inflow water needs. See TWC § 11.1471 et seq. S.B.3 mandates that the TCEQ: (1) adopt appropriate environmental flow standards for each river basin and bay system in this state that are adequate to support a sound ecological environment, to the maximum extent reasonable considering other public interests and other relevant factors; (2) establish an amount of unappropriated water, if available, to be set aside to satisfy the environmental flow standards to the maximum extent reasonable when considering human water needs; and (3) establish procedures for implementing an adjustment of the conditions included in a permit or an amended water right ... TWC § 11.1471(a). To achieve these objectives, S.B.3 directs the TCEQ to establish and implement a comprehensive plan for each of Texas’ seven major river basins and bays to determine appropriate E-flows. Pursuant to S.B.3, the TCEQ developed a scheme for collecting data and information to formulate E-flow recommendations. TWC § 11.02362 et seq. For each river .basin and bay system, there is a stakeholder team and a science team to consider and formulate flow recommendations to the TCEQ, and there are two statewide groups that oversee the entire process. The statewide Environmental Flows Advisory Group (EFAG) is responsible for appointing members to the statewide Science Advisory Committee, as, well as appointing members to each local stakeholder team. TWC § 11.0236. EFAG is permitted to make comments on the recommendations of the local science teams for each basin. Id. The Science Advisory Committee (SAC) is responsible for defining the geographical extent of each river basin and bay system for the “sole purpose of developing environmental flow regime recommendations.” TWC § 11.02361. The SAC provides overall direction and coordination, and ensures that consistent and acceptable scientific principles are utilized throughout the environmental flows allocation process in each region. The SAC has issued technical guidance documents for the local science teams to use in developing recommended flow regimes, and has created a framework for review and evaluation of the science team recommendations. Under S.B.3, each region has a Basin and Bay Area Stakeholder Committee (BBASC). TWX § 11.02362(c)(1). The BBASC stakeholder team for each region must have at least seventeen members, and these teams are required to reflect a fair and equitable balance of local groups with interests in the basin and bay system. The stakeholder team considers the recommendations of the science team, but it also considers other factors, including the present and future water needs related to water supply planning for that local basin and bay system. The BBASC is charged with appointing members to the area’s Basin and Bay Expert Science Team (“BBEST”). TWC § 11.02362(c)(3). BBEST members are required to be technical experts with special knowledge regarding the river basin and bay system or the development of environmental flow regimes. TWC § 11.02362®, (m). Pursuant to S.B.3, the local BBEST science team calculates the amount of water that needs to remain instream to protect the health and vitality of the given estuary. The BBEST submits its recommendations to the stakeholder BBASC team, as well as to the TCEQ. The stakeholder team considers the BBEST’s recommended environmental flow regime, adds their associated policy considerations, and develops strategies to meet the flow recommendations. TWC § 11.02362(0). BBASC is not, however, required to follow or give any particular weight to the BBEST’s technical recommendations. (Montagna, Day 3, Tr. 232-33). The implementation strategies for protecting flows can include options such as efficiency incentives, the dedication of treated wastewater, and the purchase or donation of existing water rights. Id. After the BBEST and BBASC each make a recommendation to the TCEQ, the TCEQ, through a public rule-making process, has one year to use those recommendations to legally adopt environmental flow standards for the river basin and inflows to the associated bay system. Although S.B.3 does establish a comprehensive framework for the State of Texas to determine the amount of freshwater inflows that need to remain instream to protect the overall health of the State’s river system, it makes no attempt to ensure that such recommended amounts remain. Indeed, to the contrary, S.B.3 specifically excludes from consideration the inflow needs of the bays and estuaries in times of water shortages. In addition, S.B.3 fails to address existing permits and water usage. In short, S.B.3 does not address, concern, protect, or assist the endangered whooping cranes, and therefore, provides no grounds for abstention. S.B.3 sets forth the “Policy Regarding Waters of the State.” TWC § 11.0235. It recognizes that the waters of the state are held in trust for the public, and that the right to use state water may be appropriated only as expressly authorized by law. Id. § 11.0235(a). It acknowledges that maintaining the biological soundness of the state’s rivers, lakes, bays, and estuaries “is of great importance to the public’s economic health and general well-being,” and it encourages “voluntary water and land stewardship to benefit the water in the state, ...”. TWC § 11.0235(b). However, there is no steadfast commitment to the bays and estuaries: The legislature has expressly required the [TCEQ] commission while balancing all other public interests to consider and, to the extent practicable, provide for the freshwater inflows and instream flows necessary to maintain the vitality of the state’s streams, rivers, and bay and estuary systems in the commission’s regular granting of permits for the use of state waters. TWC § 11.0235(c) (emphasis added). Thus, consideration of the bays and estuaries is initially relegated “to the extent practicable” status in balancing water demands. But to add insult to injury, the legislature goes on to provide that, in times of water shortages and drought, the needs of the bays and estuaries are expressly exempt from consideration: ... As an essential part of the state’s environmental flows policy, all permit conditions relating to freshwater inflows to affected bays and estuaries and in-stream flow needs must be subject to a temporary suspension if necessary for water to be applied to essential beneficial uses during emergencies. TWC § 11.0235(d). That is, in times of drought or other water emergencies, S.B.3 specifically authorizes the TCEQ to suspend the recommended freshwater inflows to bays and estuaries that the S.B.3 process had determined to be necessary to maintain the ecosystem’s health. Under S.B.3, “beneficial use” is defined as the “use of the amount of water which is economically necessary for a purpose authorized by this chapter, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose and shall include conserved water.” TWC § 11.001(4). S.B.3 specifically identifies numerous purposes for which water may be appropriated. TWC § 11.023(a). This list includes domestic and municipal uses; agricultural and industrial use, including development of power by means other than hydroelectric; mining and recovery of minerals; hydroelectric power; navigation; recreation and pleasure; public parks; and game preserves. Id. § 11.023(a)(1), (2). The water needs of whooping cranes and other endangered species are not addressed by S.B.3, and in times of drought, they are expressly disregarded. Moreover, the Texas legislature has specifically excluded as a beneficial use the allowance of water instream to benefit a bay or estuary. In response to state court litigation in which applicants sought a permitted water right to leave water in-stream, the Texas legislature passed § 11.0237(a) of the Texas Water Code, which provides: The commission may not issue a new permit for instream flows dedicated to environmental needs or bay and estuary inflows. The commission may approve an application to amend an existing permit or certificate of adjudication to change the use to or add a use for instream flows dedicated to environmental needs or bay and estuary inflows. TWC § 11.0237(a). Thus, Texas law prohibits the TCEQ from issuing a water permit for the purpose of allowing water to remain instream to maintain the bay or estuary inflows, or to otherwise address environmental needs. Finally, S.B.3 does not assist the whooping cranes because it applies only to applications for new water permits; it does not attempt to modify or amend water rights with priority dates earlier than September 1, 2007. Indeed, S.B.3 expressly prevents use of the E-flow process to regulate water users unless they are seeking new permits or new increases under existing permits: (1) water appropriated under a permit for a new appropriation of water the application for which is pending with the Texas Commission on Environmental Quality on the effective date of this Act or is filed with the commission on or after that date; or (2) the increase in the amount of water authorized to be stored, taken, or diverted under an amendment to the existing water right that increases the amount of water to be stored, taken or diverted and the application for which is pending with the Texas Commission on Environmental Quality on the effective date of this Act or is filed with the commission on or after that date. Section 1.27 of Acts 2007, 80th Leg., ch. 1430 2007 Tex. Gen. Laws 5846 (not codified in the Water Code) (emphasis added). Thus, S.B.3 and its quasi-considerations of maintaining necessary inflows has no impact on existing permits with a priority date before September 1, 2007. In addition, until the staggered S.B.3 process is actually completed, the TCEQ can continue to issue new water permits without regards to inflows. S.B.3 establishes an administrative scheme to determine freshwater inflows to the state’s bays and estuaries. It does not provide for enforcement of those recommendations, nor provide for penalties if the recommended inflows are not maintained. In addition, S.B.3 set certain deadlines for flow determinations to be made and adopted, but to date, no region has suceessfully completed the E-flow process. The TCEQ defendants, as well as GBRA and SARA, argue that S.B.3 provides an elaborate regulatory scheme for environmental flows that will address the concerns of the Whooping Crane, that federal intervention would disrupt the E-flow process, and therefore, that abstention is mandated under Burford. The Court disagrees. The mere existence of a state-created administrative body does not override the jurisdictional power of a federal court. The E-flow scheme and process may hopefully provide important and scientifically sound information to water officials and policy makers concerning each basin and bay, and eventually, promote actions to secure the recommended inflows and keep the rivers “wet.” However, to suggest that S.B.3 can protect the whooping cranes, when by its own admission, it specifically excludes the cranes’ habitat in times of water emergencies, is to argue that state law preempts federal law. This topsy-turvy view of federalism and the Constitution’s Supremacy Clause has no basis in the existing constitutional scheme. The Court has jurisdiction under the ESA. 2. Texas surface waters. Moreover, the Court finds that, not only does the ESA mandate federal court intervention in this case, but Texas’ own water laws and policies warrant judicial oversight in this instance because, contrary to the position of defendants and intervenors, Texas law specifically authorizes the TCEQ to manage the State’s surface waters in a manner consistent with conservation and in compliance with federal law, and the TCEQ defendants have failed to do so. The surface waters in the State of Texas are owned by the state itself: (a) The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state. (b) Water imported from any source outside the boundaries of the state for use in the state and which is transported through the beds and banks of any navigable stream within the state or by utilizing any facilities owned by the state is property of the state. TWC § 11.021. “The waters of the state are held in trust for the public.” TWC § 11.0235(a). No person may divert, store or impound state-owned water without authorization, by permit, certificate of adjudication, or one of the statutory exemptions. TWC §§ 11.081,11.121. Some water rights, such as Domestic and Livestock (D & L), are exempt from the permitting or adjudication process. TWC § 11.142. A D & L user may divert water from a stream or may impound up to 200 acre-feet of water at a time in an impoundment or reservoir. Id. D & L water rights are not recorded, nor are they monitored by any water enforcement office. (Soward, Day 4, Tr. 253). The TCEQ is the state agency with “general jurisdiction” over both “water and water rights” in Texas. TWC § 5.013(a). Via statute, the Texas legislature has conferred upon the TCEQ the plenary authority to implement Texas laws and to fulfill federal law. TWC § 5.015. The Texas Supreme Court has held that, when the legislature confers agency power, it impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties. Texas Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 377-78 (Tex.2005). Texas’ legal framework for resolving water conflicts is based on permit priority. Section 11.027 of the Texas Water Code provides simply: “As between appropriators, the first in time is the first in right.” TWC § 11.027. Former and current TCEQ employees and officials testified at trial about their water management responsibilities and powers. A1 Segovia is a named TCEQ defendant in this action, and at the time this suit was filed, he was employed as both the South Texas Watermaster and the Concho River Watermaster. (Segovia, Day 4, Tr. 52). In certain river basins, the TCEQ has implemented a watermaster program to protect priority water uses. See TWC § 11.326. The purpose of the watermaster program is to manage, monitor, archive, and enforce surface water rights based on priority. Id. Tr. 53-54. Under the watermaster program, water right owners, junior and senior, must contact the watermaster before diverting water. Id. Tr. 55. Depending on the river conditions at the time, the watermaster can grant permission, delay permission, or if necessary due to drought, deny permission to take water. Id. The watermaster keeps records and monitors water use of permitted water right owners through various reporting mechanisms and forms. Id. Tr. 57. Water rights are relative to one another; the oldest water right is the most senior, and all other rights are junior to it. (Segovia, Day 4, Tr. 60). If a junior water right owner seeks to withdraw water during a drought, the watermaster must organize a meeting to discuss the situation and determine if other owners can reduce their use. Id. Tr. 61. In reality, the watermaster program is “no more than a balancing act,” and it presents “a constant battle.” Id. The watermaster has the authority to tell a water owner: “You can’t take this water at this time.” Id. Indeed, water users are “all under the same drought.” Id. When water diversions must be reduced, junior right holders are restricted first. (Segovia, Day 4, Tr. 62). However, because Texas often suffers from drought conditions, even senior holders must be restricted at times, and the watermaster has the authority to order restrictions or limitations on the amount of water diverted. Id. Tr. 70-71. The first priority owners are those with D & L/riparian rights, and it is the watermaster’s job to ensure that downstream riparian right owners get their water. Id. Tr. 71. One method to address water demand is to stagger use along the river. Id. at 62. The primary objective is to “keep the river wet.” Id. D & L/riparian right owners are authorized to withdraw 200 acre-feet of water annually. (Segovia, Day 4, Tr. 77-79). And see TWC § 11.142. However, the watermaster does not monitor the D & L/riparian owner’s use. Id. A watermaster might visually check stored water to see if it remains at the same capacity, but there is no way of determining whether the riparian owner emptied and refilled the reservoir, thus using more than the allowed 200 acre-feet. Id. Tr. 78-79. Recently retired TCEQ Executive Director Mark Vickery, a named defendant in his official capacity, testified for TAP about the TCEQ’s administrative and monitoring responsibilities concerning permitted water withdrawals, as well as enforcement authority. (Vickery, Day 4, Tr. 195). In his role as Executive Director, he had policy discretion, as well as implementation authority. Id. Tr. 198. The TCEQ has enforcement authority over certificates of adjudication and water permits, and it has the authority to issue or deny a permit with conditions. (Vickery, Day 4, Tr. 205). The TCEQ has the authority to contact industries about their water use and to encourage conservation efforts, such as industrial recycling. Id. Tr. 210-211. Some permits require return flows, but it is not “routine, and most older permits do not include a return flow requirement.” Id. Tr. 212. The Oath of Office for TCEQ Commissioners requires them to comply with federal law. (Vickery, Day 4, Tr. 212, 215). Since 1985, the water permit process now requires the TCEQ to consider the impact of water diversions on bays and estuaries. Id. Tr. 218. And see TWC § 11.147(b). In addition, effective September 1, 2011, the legislature enacted section 11.053(c) of the Texas Water Code, entitled EMERGENCY ORDER CONCERNING WATER RIGHTS, which provides, in part: (a) During a period of drought or other emergency shortage of water, as defined by commission rule, the executive director by order may, in accordance with the priority of rights established by Section 11.027: (1) temporarily suspend the right of any person who holds a water right to use the water; and (2) temporarily adjust the diversions of water by water rights holders. (b) The executive director in ordering a suspension or adjustment under this section shall ensure that an action taken: (1) maximizes the beneficial use of water; (2) minimizes the impact on water rights holders; (3) prevents the waste of water; (4) takes into consideration the efforts of the affected water rights holders to develop and implement the water conservation plans and drought contingency plans required by this chapter; (5) does not require the release of water that, at the time the order is issued, is lawfully stored in a reservoir under water rights associated with that reservoir. TWC § 11.053. Mr. Vickery agreed that, pursuant to the § 11.053 emergency rule, the TCEQ now expressly has the authority to suspend or adjust water diversions in times of drought. Id. Tr. 217. The TCEQ is charged with adopting rules to implement this section. Id. The TCEQ has the discretion to make exceptions in both enforcement and in the implementation of terms and conditions of water rights. (Vickery, Day 4, Tr. 224). For example, in 2008-2009, the TCEQ accommodated a request from the City of Kerrville to withdraw water to ensure that the public’s health was protected. Id. The City of Kerrville was a junior water right. Id. Mr. Larry Soward is a retired public servant with first-hand knowledge of not only the TCEQ, but its predecessor agencies, as w