What is an HCP?
A planning document that is required by the U.S. Fish and Wildlife Service as part of their enforcement of the Endangered Species Act.
The Texas Legislature established a stakeholder group known as the Edwards Aquifer Recovery Implementation Program (EARIP) Steering Committee in 2007, and assigned it the task of developing the HCP for the EAA board’s consideration. The HCP identifies certain conservation measures developed and agreed to by the EARIP group to protect the threatened and endangered species whose only habitats are found in the Edwards Aquifer-fed Comal and San Marcos springs. The goal of the HCP is to protect those species from harm during the most severe drought to the extent required by state law (Edwards Aquifer Authority Act) and federal law (Endangered Species Act).
The HCP and an accompanying application for an incidental take permit have been submitted to the U.S. Fish and Wildlife Service (USFWS) for review and consideration. Approval of the HCP by USFWS and its implementation by signatories to the HCP – the EAA, the City of New Braunfels, the City of San Marcos, the City of San Antonio through SAWS, and Texas State University – San Marcos would shield the region from litigation under the Endangered Species Act if harm were to come to the protected species. As a result, the region would avoid federal intervention and the associated uncertainty of water availability from the aquifer in the event any harm comes to the species. Therefore, holders of EAA groundwater permits would have unprecedented assurance that they would be able to rely on their Edwards water rights for the term of the HCP, which is 15 years.
What is unique about the Edwards Aquifer HCP?
The Edwards Aquifer is a unique groundwater resource, extending 180 miles from Brackettville in Kinney County to Kyle in Hays County (Attachment 1). It is the primary source of drinking water for over 2 million people in south central Texas and serves the domestic, agricultural, industrial, and recreational needs of the area. The Edwards Aquifer is the source of the only two major springs remaining in Texas – the San Marcos and the Comal. These springs feed the San Marcos and Comal Rivers which are tributaries to the Guadalupe River.
In late 2006, FWS brought together stakeholders from throughout the region to participate in a unique collaborative process to develop a plan to contribute to the recovery of federally-listed species dependent on the Edwards Aquifer. This process is referred to as the Edwards Aquifer Recovery Implementation Program (“EARIP”). In May 2007, the Texas Legislature directed the EAA and certain other stateand municipal water agencies to participate in the EARIP and to prepare a FWS-approved plan by 2012 for managing the Aquifer to preserve the listed species at Comal and San Marcos Springs. The Legislature directed that the plan must include recommendations regarding withdrawal adjustments during critical periods that ensure that federally-listed species associated with the Edwards Aquifer will be protected.
What is the Benefit?
Regulate pumping from the aquifer, implement critical period management restrictions, and pursue measures to ensure minimum continuous springflows of the Comal and San Marcos Springs are maintained to protect endangered and threatened species to the extent required by federal law. Today, competing water needs within the region continue to influence management of the resource. The region’s stakeholders has adopted the HCP as workable plan for a long-term protection for the federally-listed species.
Who is Implementing It?
Members of an Implementing Committee to supervise implementation of the HCP in accordance with the provisions of the Funding and Management Agreement. The Implementing Committee will be comprised, operate, and have the duties, rights, and obligations.
How Much Will it Cost?
To approve the ITP, the USFWS must find that the Applicants “will ensure that adequate funding for the [HCP] will be provided.” To satisfy this requirement, the costs of implementing the HCP are set out below along the assurance that funding will be available to implement the HCP.
PHASE I MEASURES:
Annual Implementation Costs:
Implementation of some measures in the Phase I program will entail the expenditure of nonrecurring funds at the early years of the implementation of the HCP for the habitat minimization and mitigation measures at Comal and San Marcos springs. Accordingly, the costs in the initial years are higher than the later years. The annualized costs in year 7 are expected to continue through Phase II, unless changed by the AMP.
The cost of the SAWS ASR springflow protection measure was based on the experience of SAWS and other members of the SAWS ASR Work Group in leasing water and SAWS’ experience in operating its ASR. HDR Engineering, Inc. participated in the development of these cost estimates. The cost include the annual cost of leasing water for the SAWS ASR ($4,759,000) and the annual O&M costs related to the use of the ASR ($2,194,000). These costs are average annual costs based on a probabilistic analysis of the triggers for leasing water and recovering from the ASR.
The cost of the Regional Water Conservation program was developed by the Conservation Work Group based largely on SAWS’s experience with its conservation program. HDR Engineering, Inc. reviewed these costs estimates.
The estimated costs of the habitat minimization and mitigation measures were initially developed by the Ecosystem Restoration Subcommittee. To the extent possible, these estimates were based on experience in the springs ecosystem or comparable projects implemented elsewhere. Subsequently, the costs were refined by the cities of San Marcos and New Braunfels and included, where possible, preliminary estimates by potential contractors. The costs were reviewed and further refined by BIO-WEST with the participation representatives from the spring cities.
Funding to implement the HCP will come from two sources: (1) “aquifer management fees” (“AMF”) assessed by the EAA; and (2) third-party contributions. Through AMFs, the EAA will “fully fund” the implementation of the HCP during both Phase I and Phase II of the term of the ITP. Among the expenses and programs authorized by the EAA Act is the implementation of the HCP. In addition to AMF assessed by the EAA to fund its non-HCP programs and expenses, the EAA will also assess a separate AMF to fund the costs of implementing the HCP. This AMF is referred to as the “Program Aquifer Management Fee.”
Third-party contributions will be remitted to the EAA by other entities who are not users of the Aquifer and, therefore, do not pay AMFs. These other entities include at this time by the City of Victoria, Guadalupe-Blanco River Authority (“GBRA”), Nueces River Authority, Dow Chemical, Guadalupe Basin Coalition, and Invista. The aggregate of the third-party contributions is expected to total $640,000 annually [Invista’s contribution is not included because it has not been approved by Invista’s management.] It should be approved this week towards the costs of the implementation of the HCP. Of that amount, GBRA will contribute $400,000 initially. This amount may be decreased by an amount not to exceed 2% over the prior year’s amount for a calendar year during the term of the JFA based on an increase in the costs of implementing the HCP as certified by the EAA. Similarly, the amount may also be reduced but not below the initial $400,000 amount.
The EAA will create within the EAA a restricted account known as the “HCP Program Account.” The Account will have two funds—an operations fund and reserve the fund of the HCP Program Account. However, the amount that EAA may accumulate is capped at $46 million dollars. This cap is referred to as the “Fund Balance Cap.” The reserve fund will allow the accumulation of funds for the projected costs of the based on the VISPO and SAWS ASR measures, full funding for which is needed at irregular periods and is based on a probabilistic analysis of the number of years in which these measures will be triggered.
In the event the reserve fund is fully funded and the Fund Balance Cap is exceeded, then the “Excess Fund Balance” will be applied to reduce the Annual Funding Obligation (or Annual Program Budget) of the EAA for the next calendar. The EAA will begin collecting Program AMFs during the fiscal year 2012 prior to the effective date of the ITP to ensure that sufficient funding will be available on January 1, 2013, to begin implementation of the HCP.
Funding Assurances for Any Additional Phase II Measures:
To address the need now to demonstrate both the ability and commitment to achieve the existing long-term biological objectives, while recognizing the uncertainty associated with those objectives, SAWS will commit to implement a “presumptive” action that is adequate to achieve the minimum flow management objective. The presumptive action for Phase II of the HCP involves the expanded use of the SAWS ASR associated with a planned construction of the WRIP Pipeline that is currently in the design stage and is scheduled for completion by 2020.
To the extent that such a project cannot be designed and implemented to achieve the goals within the above-described assumptions, additional springflow protection will be obtained through additional CPM pumping cuts in Stage V or other measures that provide an equivalent measure of protection to the Covered Species in San Marcos and Comal springs.
SAWS has committed to allow the expanded use of its ASR, if it is needed, to achieve the current biological goals. The opportunity for this commitment is due to SAWS’ construction of the WRIP, which will be completed by 2020.
Although they are not anticipated, there may be increase in the cost of using the ASR, such as operation and maintenance costs or water leasing costs beyond thosefor which financial assurances in Phase I have already been provided in the FMA. If so, additional funding may be necessary beyond that already covered in the FMA. Because of the uncertainty regarding whether the Phase II presumptive measure will be necessary and what additional costs, if any, there may be, any decision has been made regarding the sources of any additional funds.
The inability of the Phase II presumptive measure to function as expected within the stated assumptions constitutes and changed circumstance provided for in the HCP. Thus, the commitment of the expanded use of the expanded use of the SAWS ASR defines the maximum obligation for funding of Phase II pf the HCP under the No Surprises Rules.
The Applicants will actively pursue alternative sources of funding to offset or augment Phase I and to fund any additional Phase II implementation activities. The potential sources of funding include Federal, State, and private funding and grant programs. Moreover, the Applicants intend to continue efforts through the 2017 legislative session to have the Texas Legislature authorize a vote by the citizens of the region on the use of a regional sales tax to cover the costs of Phase I minimization and mitigation measures and any additional springflow protection measures that may b needed in Phase II.
In the event that an alternative funding source adequate to fund HCP-related activites is created or secured, the funding obligation of the EAA and the third-party contributors will be reduced or terminated as provided on Sections 6.3 and 6.4.1 of the FMA and 11(a)(1) of the JFA, respectively. Thereafter, funding responsibilities for the EAA will, to the extent of the alternative new funding source, be the responsibility of the administrator of the tax as provided by the legislation establishing such a tax, or the documents establishing another funding source.
What species are covered?
The species include: fountain darter, San Marcos salamander, San Marcos gambusia, Texas blind salamander, Peck’s cave amphipod, Comal Springs dryopid beetle, Comal Springs riffle beetle and Texas wild rice. Find more information here.