Musseling Through State and Federal Regulations on Threatened and Endangered

Species

TWCA 71st Annual Convention

Overview

• Glenn Clingenpeel – TRA• General discussion of the Issue

• Ashley Oliver – Halff and Associates, Inc.• Technical Issues

• Sara Thornton – Lloyd Gosselink Rochelle & Townsend, P.C.• Legal/regulatory Issues

Zebra Mussels on Boat, Shopping Cart and Crayfish

Tactile Mussel Survey

Are Native Mussels Truly Threatened?

• 15 State-listed Freshwater Mussels

• 12 Species considered for federal listing • 6 are candidates pending final decision

Map of CIP – stream crossings

Native Mussel and Endangered Species Committee

• Broad Representation• Three Sub Committees

– Data Sufficiency– State Issues– Federal Issues

Native Mussel and Endangered Species Committee

TWCA NMESC

Local Interest

State/Federal

Informatio

n

Coordination

Regional studies

Provide information to assist/influence listing process and regulatory enforcement

Local Interest

Musseling Through State and Federal Regulations on Threatened and Endangered

Species

Ashley M. OliverHalff Associates, Inc.

State Regulations & Requirements

• 15 species listed as “Threatened” on January 17, 2010

• State law prohibits take; Chapters 67-68 TPW Code; Section 68.015; Section 65.171 of TAC

• Handled only by persons with a Scientific Collecting Permit or Letter of Authorization.

Penalties: - Up to a Class A Misdemeanor & 1 year in jail- Fines & Restitution values per individual, vary by species

State Regulations & Requirements

Types of Projects

• Road or Bridge Construction/Maintenance

• Boat Ramp Construction/Maintenance

• Pipelines, Dam Work

• Dewatering/Cofferdamming

• Dredging, Boring, Trenching

• Fill; Changes to banks

• River Channel Modifications

• Projects requiring 404 permits

• Any project that impacts the bottom of a channel or reservoir

Begin Construction

Conduct Survey & Relocation (April-Oct; 1-8 weeks)

Prepare ARRP (2-4 weeks)

Assess Project Needs & Determine Best

Survey MethodologyObtain ARRP TPWD Approval & Permit

(2-4 weeks)

Presence/Absence Surveys

No State-listed Species Found

Begin Construction

Assume Presence Methodology

(100% of impact area + sedimentation)

Demonstrate Absence Methodology

Report Findings

State-listed Species Found

More Surveys During Dewatering/Construction

(if necessary)

Scheduling to Avoid Project Delays

Take Away Message: Plan Early

Report Findings

Aquatic Resource Relocation Plans

TPWD Kills and Spills Team

•When moving listed mussels OR dewatering streams, ponds, reservoirs, stilling basins & other flood control structures

•TPWD requires a written plan from RP at least 4 weeks prior to construction.

•Approved by regional TPWD KAST

Permit to Introduce Fish, Shellfish or Aquatic

Plants into Public Waters

(a.k.a Relocation Permit) s

TPWD Inland Fisheries

•Must have a TPWD-approved permit to relocate aquatic life

•Issued by TPWD Austin

Western Dams Rehabilitation Project

• SCUBA safety: positive pressure full face masks

& drysuits

• SCUBA divers conduct tactile searches

• Visual ID by a TPWD-permitted biologist

• Transport live mussels in coolers to the relocation site

General Methodology – Phase I

California Crossing Dam – Phase II

• 8,632 mussels; 21 total species• 175 Tx pigtoe, 62 La pigtoe, 8 “probable” Tx heelsplitter

Technical SubCommittee: Data Sufficiency Review

• Formed April 2014

• Online Resources (TPWD NDD, USFWS, etc.)

• Field Guide to Texas Mussels (Howells)

• Academic Contacts

• Literature Review going back to 1920s

Findings: There are a LOT of Data Gaps!

• No Centralized, Real-Time Database

• No Standardized Survey Methodology

• No Coordination Requirement for Relocation

• Large Gaps in Statewide Occurrence Knowledge

• Gaps in Current Studies (Ex: DFW Area)

Findings: There are a LOT of Data Gaps!

• Major Tributaries (Ex: Medina River)

• Genetic & Identification Issues (Ex: Tx heelsplitter)

• Zebra Mussel Impacts

• Unknown Host Species

Life History

How Can Relocation/Conservation be Successful Without Host Data?

• State-Listed Species (10 of 15: NO DATA)

• Federal Candidates (4 of 6: NO DATA)

• Current Research - USGS

- Academia

- Halff

Musseling Through State and Federal Regulations on Threatened and Endangered

Species

Sara R. ThorntonLloyd Gosselink Rochelle & Townsend, P.C.

Authority to Require Mussel Surveys

• Section 12.0011 of PWC grants TPWD authority to:• Investigate fish kills and pollution

causing fish kills• Provide recommendations to

protect fish to other agencies• Section 12.015 of PWC grants TPWD

authority over introduction of fish, shellfish, and aquatic plants

Authority to Require Mussel Surveys

• Section 66.015 of the PWC prohibits placing into public water any fish, shellfish, or aquatic plant without a permit

• Section 57.253 of 31 TAC requires an application for a permit to introduce fish, shellfish, or aquatic plants

Authority to Require Mussel Surveys

“[TPWD] may require the applicant to submit any other information that [TPWD] determine is necessary to evaluate the application or protect state resources.”

Lack of Regulatory Certainty

• No regulations governing requirements for mussel surveys; only broad authority

• Need additional guidance/regulations regarding mussel surveys and relocation plans

• Petition for rulemaking: Sections 51.2 & 51.3 of 31 TAC

Federal Listed Species

Federal Endangered Species Act:•Section 4: • Factors for listing• Filing a petition for listing• Candidate species

•Section 7: Consultation for federal actions:• Jeopardize species• Destruction of critical habitat

•Section 9: Prohibits “taking” of species

Future Listings of Candidate Species

• Settlement agreements with WildEarth Guardians and Center for Biological Diversity

• Multi-year listing work plan• Includes the 5 central Texas

mussels• Listing expected in 2017 or

later

Proposed Rules on Critical Habitat

• Definition of “destruction or adverse modification”

• Declared invalid by the 5th Circuit (2001) and the 9th Circuit (2004)

Proposed Rules on Critical Habitat

Proposed definition for “destruction or adverse modification”:

“a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat”

Proposed Rules on Critical Habitat

• Proposed definition of “geographic area occupied by the species”:• Area generally delineated around species’

occurrences• Phrase used in definition of critical habitat• Proposed in an attempt to “clarify the critical-habitat-

designation”

Proposed Rules on Critical Habitat

• Proposed treatment of “unoccupied” habitat

• Deletes provision limiting authority to designate unoccupied habitat as critical habitat - 50 C.F.R. § 424.14(e)

• Adds express provision regarding designation of unoccupied habitat

Proposed Rules on Critical Habitat

• Comment period closed on October 9, 2014• Unknown when final rules will be issued• Could have significant impacts on any water

supply projects requiring Section 7 consultation

State of Texas Efforts on Future Listings

• Interagency Task Force on Economic Growth & Endangered Species

• Most recent meeting held on February 17, 2015• Recognized listing of freshwater mussels could

have significant impacts• Approved the forming of a stakeholder group

regarding listing of freshwater mussels

Musseling Through State and Federal Regulations on Threatened and Endangered

Species

Questions?