Aquatic Systems and the Endangered Species Act:

A Case Study of the Edwards Aquifer

Habitat Conservation PlanTexas Groundwater Summit—

Science and Innovation Breakout Session – August 26, 2015

Jenna B. Cantwell, SWCA Environmental Consultants

Endangered Species Act of 1973Protects listed species and habitatsSpecies can be listed as “endangered”

or “threatened”Generally, illegal to "take" a listed

species without authorization Civil and criminal penalties for ESA violations

Fines or jail time - up to $100,000 and 1 year imprisonment per violation

Non-enforcement consequences of violations include substantial project delays and negative press/market reactions

Provides for “citizens suits” allowing third party enforcement of ESA

Take, Jeopardy, and Critical HabitatWhat is “TAKE”?

“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any threatened or endangered species”

Service regulations define “HARM” to include significant habitat modification

Service can authorize certain types and levels of take

Must avoid Jeopardizing the continued existence of the species in

the wild Destroying or adversely modifying areas of

critical habitat

Non-federal Section 10 HCP ProcessNo mandate to consult with USFWS – but risk of

enforcement for ESA violationsProject proponent prepares application for a Section 10

permit: Habitat Conservation Plan Draft NEPA document Stakeholder and/or public input may be required

USFWS reviews and approves applications: Public notice and opportunity for comment typically

required Section 7 Biological Opinion NEPA Finding of No Significant Impact or Record of Decision Review at multiple office levels

Incidental Take Permit Issuance Criteria The taking will be incidental;

The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;

The applicant will ensure that adequate funding for the HCP and procedures to deal with unforeseen circumstances will be provided;

The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;

The applicant will ensure that other measures that the Services may require as being necessary or appropriate will be provided;

The Services have received such other assurances as may be required that the HCP will be implemented.

The ESA and Aquatics: Challenges to Section 10 Compliance

Scale & Cumulative EffectsLimited Options for Mitigation Best Available Science ITP Issuance CriteriaRegulatory ChallengesJeopardy Standard

Scale & Cumulative EffectsThe Challenge: Water Quality

and Water Quantity; project scale; meaningful effect; demonstration of take.

EAHCP Example: Edwards Aquifer dependent species protection requires the consideration of both water quality and quantity.

EAHCP Solution: EARIP; legislative mandate; diverse stakeholder involvement.

Limited Options for MitigationThe Challenge: There are

limited mitigation opportunities for endemic aquatic species.

EAHCP Example: No conservation banks/organizations with responsibility for Edwards species.

EAHCP Solution: Implementation of a robust avoidance and minimization program; habitat restoration.

Best Available ScienceThe Challenge: ESA decision making is based

on the application of the Best Available Science which may be limited for rare (or subterranean) species.

EAHCP Example: Very little information on the life history and basic biological needs is currently known for several of the Covered Species.

EAHCP Solution: Conservation program modelled after historical conditions and supported by a dynamic modeling and research program; Adaptive Management.

ITP Issuance CriteriaThe Challenge: Prior to ITP issuance, the USFWS

must determine that the Applicant has met the Section 10 issuance criteria.

EAHCP Example: Disagreement over appropriate springflow levels; program funding discussions; implementation assurances.

EAHCP Solution: Adaptive Management; Funding and Management Agreement; Early launch of several programs (Regional Water Conservation Program and Stage V CPM).

Regulatory ChallengesThe Challenge: There is a

changing regulatory climate surrounding aquatic ecosystem and regulations are not consistent across jurisdictions.

EAHCP Example: Jurisdiction over surface water vs. groundwater; legal challenges to the EAA Act.

EAHCP Solution: Stakeholder involvement; unknown how ongoing legal challenges will affect the EAHCP.

Jeopardy StandardThe Challenge: Aquatic species are often

endemic to isolated water bodies and may be vulnerable to a natural or man-made catastrophic events.

EAHCP Example: During the Drought of Record in the 1950s the fountain darter was extirpated from the Comal River.

EAHCP Solution: Robust springflow protection measures and conservation program; inclusion of a Refugia program; unknown how USFWS will respond if springflows drop below those prescribed in the EAHCP.

“Nature is not more complex than we think; it is more

complex than we can think.”--San Bruno Mountain Stakeholder

Thank you.