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Barton Springs Aquifer District seeks to complete federal permit process

Friday, July 22, 2011 by Michael Kanin

The Barton Springs Edwards Aquifer Conservation District has yet to complete its delivery of a set of documents that represent the first step in a process that could bring it significant legal protections in the course of performing its duties. Officials with the district say that the organization suffered from delays brought on by the U.S. Fish and Wildlife Service, and a loss of grant funding that ran out in May.


The blanket of legal protection would come in the form of an Incidental Take Permit. That document, sanctioned by Fish and Wildlife, allows the district to encroach on the habitats of protected species to the point where its activities result in the incidental “take” of animal life in the process of its operations.


Aquifer General Manager Kirk Holland presented the situation to the district’s Board of Directors last week. Board members questioned the contract that the district signed with Fish and Wildlife and raised concerns about both the financial implications of the delay and the legal ramifications associated with the lack of the permit.


The first step in the Incidental Take Permit is the completion of a Habitat Conservation Plan. As part of that effort, the aquifer district must first deliver an environmental impact study


Without the permit, Holland told In Fact Daily that the district is exposed to legal action. “Until we complete this process … we’re not going to be able to get the incidental take permit, and so there’s an exposure or harming the endangered species of Barton Springs, without a permit,” he said. “That exposure accrues to us as well as all of the groundwater users in the district.”


Pct. 5 Director Craig Smith picked up on that fact. When Pct. 3 Director Bob Larsen wondered about sanctions that might be associated with the delay of the plan and the permit, Smith responded “we’ll know that when the flow gets down to about 14 (cubic feet per second) and (Save Our Springs) sues us for allowing anybody to pump,” he said.


Holland said that the district will have to start the process of compiling the work on its own. “Because we had to do a lot more technical work – scientific work – on the front end of the second grant, we did run out of money on the grant, but we really ran out of time because the grant ended on May 31, 2011.”


He added that, because the grant funding had run out, the new work on the study would have to be constructed “solely on our own dime.” That price tag could come in as high as $164,000. Holland told the board that he wasn’t yet sure where the district would get the bulk of the money to proceed with the study. Options for funding include spreading out the project over several fiscal years, and/or re-working at least two annual budgets.


The environmental study will be completed by Austin-based Hicks & Company.


“I am as strong a supporter of the (Habitat Conservation Plan) as anyone on the board,” said Smith, “but I am not in favor of further impinging on our other programs in order to try to bring it in.”


The completion of the study will continue to be at the mercy of Fish and Wildlife’s schedule. Larsen read aloud from a section of a contract that the District signed with Fish and Wildlife. “’Contractor agrees to report directly to U.S. Fish and Wildlife Service though the consultant will be paid by applicant’ – BSEACD, in this case – ‘contractor is obligated to follow the directions of the Fish and Wildlife Service,’” Larsen read.


“How did we ever sign this?”


This is what they insist on … it’s an unfunded mandate,” Holland told him.

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