The Texas Commission on Environmental Quality (TCEQ) and the U.S. Fish and Wildlife Service (USFWS) recently announced the implementation of a cooperative water quality initiative for the Edwards Aquifer region that will be administered under the TCEQ's Edwards Aquifer Rules. One of the goals of this effort is to help foster some regulatory stability for Central Texas regarding the regulation of water quality and the administration of the Endangered Species Act (ESA) for aquifer-dependent species. Those species include (but are not limited to) endangered species such as the Barton Springs salamander and the San Marcos salamander, as well as species that are candidates for listing such as the Georgetown salamander.
TCEQ and USFWS jointly developed a set of optional water quality measures that were adopted as an appendix to the TCEQ's Technical Guidance Manual for compliance with the Edwards Aquifer Rules. On February 14, 2005, USFWS delivered to the state a letter which provides that projects constructed in compliance with these optional measures are not expected to result in the "take" of the covered aquatic species under the ESA.
The optional water quality measures and the USFWS “no take” letter may be found on the TCEQ's Edwards program website, which is: http://www.tnrcc.state.tx.us/EAPP/index.html.
The optional measures are a departure from the old (circa 2000) USFWS water quality "recommendations" that were successfully challenged in a lawsuit brought by the Homebuilders Assn. of Greater Austin and the Real Estate Council of San Antonio. The TCEQ/USFWS measures are comprised primarily of permanent best management practices (BMPs), and do not contain recommended impervious cover restrictions. Among other things, the optional measures call for:
- removal of 80% of all total suspended solids (rather than a percentage of the increased load above baseline levels);
- setbacks and buffers from creeks, streams and sensitive recharge features; and
- enhanced reporting and monitoring requirements on the performance of water quality controls.
A project that chooses to comply with these measures will receive an acknowledgement from TCEQ that its water pollution abatement plan meets the standards of the optional measures, which would qualify that project for "coverage" under the USFWS "no-take" letter. According to TCEQ, these measures are strictly optional, and the basic requirements of the Edwards Aquifer Rules will not change.
If you have any questions regarding this issue, please contact Alan Glen at 512-225-5801 and aglen@smith-robertson.com, or Craig Douglas at 512-225-5806 and cdouglas@smith-robertson.com. This article does not constitute legal advice, and is for general information purposes only.
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TCEQ and U.S. Fish and Wildlife Service Announce Cooperative Effort
To Provide Regulatory Stability and Protect Water Quality in Central Texas