Changes in TPDES General Construction Permit Require Endangered Species Act Consideration

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On February 19, 2013, the Texas Commission on Environmental Quality (TCEQ) issued a revised Texas Pollution Discharge Elimination System (TPDES) Construction General Permit TXR150000 (Permit).  This new Permit, effective March 5, 2013, includes a section specific to the U.S. Endangered Species Act (ESA) that says:

Discharges that would adversely affect a listed endangered or threatened aquatic or aquatic-dependent species or its critical habitat are not authorized by this permit, unless the requirements of the Endangered Species Act are satisfied.  Federal requirements related to endangered species apply to all TPDES permitted discharges and site–specific controls may be required to ensure that protection of endangered or threatened species is achieved. If a permittee has concerns over potential impacts to listed species, the permittee may contact TCEQ for additional information.

This “ESA clause” is odd in several respects and will likely increase uncertainty in the public and private development industries.  It appears TCEQ has, possibly inadvertently, added a condition to the Permit by which it, and perhaps third parties, can object to a project based on a federal ESA standard that does not apply to non-federal activities.  The language of the first sentence of the provision mirrors language applicable to federal agencies under section 7 of the ESA.  The Supreme Court, however, has ruled that ESA section 7 obligations do not attach to EPA NPDES programs that have, as in the case of Texas, been delegated to a state.  (National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).)  The standard that applies to non-federal actions is that such actions may not “take” listed species, not that they must avoid an “adverse effect.”  Moreover, the “take” prohibition of section 9 of the ESA applies to all non-federal actions regardless of whether the Permit speaks to endangered species.  The ESA clause therefore creates confusion and to no apparent purpose. 

TCEQ responses to comments made during the public comment period indicate that any ESA requirements that are applicable to the area where the construction activity is occurring must be specifically addressed in the SWP3 Stormwater Pollution Protection Plan (SWP3s). (Executive Director’s Response to Public Comment on TCEQ General Permit No. TXR150000, available here.) The new ESA clause could have troublesome implications for those preparing SWP3s in species-sensitive areas (Edwards Aquifer, coastal areas, panhandle, to name a few).