Common use of Total Anticipated Take Clause in Contracts

Total Anticipated Take. ‌ Based on these analyses and assumptions, the total estimated surface disturbances over 23 years is reasonably anticipated to be 34,940 acres of DSL Habitat, approximately 48% of which is from sand mining operations. Because the 2020 DSL CCAA provides the opportunity for participation across all relevant sectors, including the sand mining industry, the total estimated surface disturbance is inclusive of all estimated impacts by each sector, regardless of whether or not a particular operation is a Participant. This is not an assumption of 100% participation by operations across all sectors, but rather reflects the establishment of metrics related to New Surface Disturbance of DSL Habitat over the course of this plan’s 23 years by which the effectiveness of Conservation Measures, such as the annual and total caps on New Surface Disturbance by sand mining operations, under the 2020 DSL CCAA can be monitored, including for purposes of Adaptive Management. These estimates also establish the ceiling for any Take that is authorized consistent with the 2020 DSL CCAA. This represents approximately 12% of modeled potential DSL habitat in Texas.5 Finally, these maximum take estimates also are inclusive of take authorized under the TCP, but the permit in connection with 2020 DSL CCAA does not authorize the take of the same acres as enrolled in the TCP. Rather, the take estimate represents an accounting of all New Disturbance in the Covered Area to ensure that performance under the 2020 DSL CCAA does not exceed a biologically acceptable level. The only take authorized pursuant to the 2020 DSL CCAA is for impacted Enrolled Property as reflected in CIs issued under the plan. Table 3. Summary of Anticipated Impact (Take) by Sector. EFFECTS OF THE ACTION ANTICIPATED TAKE (ACRES) Oil and Gas 15,424 Linear Infrastructure 1,355 Local Government, Agriculture and Ranching 834 Sand Mining 16,560 Renewable Energy 767 Total Take from Covered Activities 34,940 5 Sand mining under the 2020 DSL CCAA would affect less than 6% of the modeled DSL Habitat in Texas (287,327 acres under Xxxxx) and would affect less than 2.5% of total modeled DSL Habitat in Texas and New Mexico (684,750 acres). Oil and gas development under the 2012 TCP and the 2020 DSL CCAA (as reflected by the maximum allowable take) would affect approximately 5% of the modeled DSL Habitat in Texas.

Total Anticipated Take. ‌ Based on these analyses and assumptions, the total estimated surface disturbances over 23 years is reasonably anticipated to be 34,940 acres of DSL Habitat, approximately 48% of which is from sand mining operations. Because the 2020 DSL CCAA provides the opportunity for participation across all relevant sectors, including the sand mining industry, the total estimated surface disturbance is inclusive of all estimated impacts by each sector, regardless of whether or not a particular operation is a Participant. This is not an assumption of 100% participation by operations across all sectors, but rather reflects the establishment of metrics related to New Surface Disturbance of DSL Habitat over the course of this plan’s 23 years by which the effectiveness of Conservation Measures, such as the annual and total caps on New Surface Disturbance by sand mining operations, under the 2020 DSL CCAA can be monitored, including for purposes of Adaptive Management. These estimates also establish the ceiling for any Take that is authorized consistent with the 2020 DSL CCAA. This represents approximately 12% of modeled potential DSL habitat in Texas.5 Texas.6 Finally, these maximum take estimates also are inclusive of take authorized under the TCP, but the permit in connection with 2020 DSL CCAA does not authorize the take of the same acres as enrolled in the TCP. Rather, the take estimate represents an accounting of all New Disturbance in the Covered Area to ensure that performance under the 2020 DSL CCAA does not exceed a biologically acceptable level, which will be based on compliance with the 2020 DSL CCAA and the take levels as described in Section 18.3. Performance of the 2020 DSL CCAA will be deemed to meet a biologically acceptable level if (a) the take, as described in the 2020 DSL CCAA, Section 18.3, is not exceeded and (b) Participants are in material compliance with their CIs. Requirements for monitoring and reporting will be conducted in accordance with the governance and provisions of the 2020 DSL CCAA. The only take authorized pursuant to the 2020 DSL CCAA is for impacted Enrolled Property as reflected in CIs issued under the plan. Table 34. Summary of Anticipated Impact (Take) by Sector. EFFECTS OF THE ACTION ANTICIPATED TAKE (ACRES) Oil and Gas 15,424 Linear Infrastructure 1,355 Local Government, Agriculture and Ranching 834 Sand Mining 16,560 Renewable Energy 767 Total Take from Covered Activities 34,940 5 6 Sand mining under the 2020 DSL CCAA would affect less than 6% of the modeled DSL Habitat in Texas (287,327 acres under Xxxxx) and would affect less than 2.5% of total modeled DSL Habitat in Texas and New Mexico (684,750 acres). Oil and gas development under the 2012 TCP and the 2020 DSL CCAA (as reflected by the maximum allowable take) would affect approximately 5% of the modeled DSL Habitat in Texas.

Total Anticipated Take. ‌ Based on these analyses and assumptions, the total estimated surface disturbances over 23 years is reasonably anticipated to be 34,940 34,690 acres of DSL Habitat, approximately 48% of which is from sand mining operations. Because the 2020 DSL CCAA provides the opportunity for participation across all relevant sectors, including the sand mining industry, the total estimated surface disturbance is inclusive of all estimated impacts by each sector, regardless of whether or not a particular operation is a Participant. This is not an assumption of 100% participation by operations across all sectors, but rather reflects the establishment of metrics related to New Surface Disturbance of DSL Habitat over the course of this plan’s 23 years by which the effectiveness of Conservation Measures, such as the annual and total caps on New Surface Disturbance by sand mining operations, under the 2020 DSL CCAA can be monitored, including for purposes of Adaptive Management. These estimates also establish the ceiling for any Take that is authorized consistent with the 2020 DSL CCAA. This represents approximately 12% of modeled potential DSL habitat in Texas.5 Finally, these maximum take estimates also are inclusive of take authorized under the TCP, but the permit in connection with 2020 DSL CCAA does not authorize the take of the same acres as enrolled in the TCP. Rather, the take estimate represents an accounting of all New Disturbance in the Covered Area to ensure that performance under the 2020 DSL CCAA does not exceed a biologically acceptable level. The only take authorized pursuant to the 2020 DSL CCAA is for impacted Enrolled Property as reflected in CIs issued under the plan. Table 3. Summary of Anticipated Impact (Take) by Sector. EFFECTS OF THE ACTION ANTICIPATED TAKE (ACRES) Oil and Gas 15,424 Linear Infrastructure 1,355 Local Government, Pipelines 1,105 Agriculture and Ranching 834 Sand Mining 16,560 Renewable Energy 767 Total Take from Covered Activities 34,940 34,690 18.3.1 Conservation Strategy‌ The 2020 DSL CCAA’s Conservation Strategy will contribute to the conservation of the DSL by reducing or eliminating threats on Enrolled Property and result in a net conservation benefit to the DSL and its habitat. First, the 2020 DSL CCAA generally requires and incentivizes avoidance of High and Intermediate Suitability Habitat for all Covered Activities with certain exceptions. All New Surface Disturbances will be fully mitigated through the Conservation Action program. Second, habitat degradation and fragmentation, which can be among the principal threats to the DSL in Texas, are reduced by the 2020 DSL CCAA. For example, the 2020 DSL CCAA places 5 Sand mining under the 2020 DSL CCAA would affect less than 6% of the modeled DSL Habitat in Texas (287,327 acres under Xxxxx) and would affect less than 2.5% of total modeled DSL Habitat in Texas and New Mexico (684,750 acres). Oil an emphasis on avoidance of development in high quality habitat and gas focuses development under in areas of degraded habitat (e.g., greater than 13 xxxxx pads/mi2). This emphasis will reduce the 2012 TCP creation of new areas of high-density xxxxx and, thus, minimize habitat degradation and fragmentation. Third, encouraging avoidance of areas of well densities greater than four and less than 13 well pads/mi2 also should minimize development in areas with the potential to become degraded habitat. Fourth, the CCAA includes a Conservation Strategy calling for well pad removal and restoration that will reduce well densities in marginal areas of degradation. Moreover, the 2020 DSL CCAA (as reflected emphasizes the use of Conservation Easements and other protections to create contiguous areas of protected High and Intermediate Suitability DSL Habitat, again reducing the areas of high density and fragmentation of DSL Habitat. Additionally, the 2020 DSL CCAA will fund research to better understand the impacts of well density and roads and to determine whether shinnery oak can be established or reestablished in DSL Habitat. Finally, the Administrator may consider implementing a credit system for the acres of DSL Habitat that may be disturbed by sand mining operations under the maximum allowable take) 16,560 acre disturbance cap. Under such a system a sand mining Participant would affect approximately 5% be permitted to sell credits for acres of the modeled like DSL Habitat in an Enrolled Property to another enrolled sand mining Participant. Among other things, such a credit system would incentivize enrollment by sand mining operators and provide opportunities for DSL Habitat offsets, including in High Priority Areas. Overall, there are substantial net conservation benefits to the DSL to be achieved through the sand mining industry’s participation in voluntary conservation pursuant to the 2020 DSL CCAA. The net conservation benefit to the DSL of the 2020 DSL CCAA is substantial relative to the current baseline, which is marked by the absence of federal regulatory and land management authority to conserve and protect an unlisted species and its habitat on private property in West Texas. The 2020 DSL CCAA also achieves a net conservation benefit to the DSL relative to the Comptroller’s recent 2019 voluntary conservation proposal, which would have excluded sand mining operations located in High and Intermediate Habitat as characterized by the Hardy map from participation in that plan, but at the same time acknowledged that impacts in these same areas would proceed without any required conservation measures. In its proposed 2019 CCAA submitted to FWS, the Comptroller estimated that there would be only 5 sand mining participants, which it estimated would take approximately 12,731 acres of Low Suitability Habitat under the Hardy map. The Comptroller estimated that sand mining operations not participating in its proposed 2019 CCAA would take an additional approximately 20,160 acres of High and Intermediate Habitat under the Hardy map, while not being subject to any conservation measures under the plan. The Comptroller estimated that, under its 2019 proposal, sand mining operations, both participants and non-participants, would take a total of 32,891 acres of DSL Habitat. As reflected above, the 2020 DSL CCAA establishes firm caps limiting disturbance by sand mining operations of all potential DSL Habitat, including High and Intermediate Suitability Habitat under the Hardy map, to 16,560 total acres. Even if all sand mining disturbance under the caps were in High and Intermediate Suitability Habitat under the Hardy map (which is unlikely), the 2020 DSL CCAA would reduce disturbance of all DSL Habitat by 16,331 acres and disturbance of High and Intermediate Suitability Habitat by 3,829 acres, relative to the Comptroller’s 2019 proposal. Accordingly, the disturbance caps under the 2020 DSL CCAA reduce potential disturbance by sand mining operations of all DSL Habitat by 49.7% and of High and Intermediate Habitat by at least 19.0%, relative to the Comptroller’s 2019 proposal. In addition to providing firm annual and total caps that limit disturbance of DSL Habitat, by allowing all sand mining operations to participate in the 2020 DSL CCAA, all reasonably foreseeable activities are taken into account and would be subject to Conservation Measures including (1) Habitat Conservation Fees and other fees to incentivize avoidance of and conservation of High Priority Areas, to reduce fragmentation of DSL Habitat, and to fund DSL and DSL Habitat conservation and scientific research; (2) opportunities to offset habitat disturbance and fragmentation through conservation of DSL Habitat through Conservation Easements and other protections; (3) sector-specific suites of best management practices and other protective measures; and (4) a robust Adaptive Management process. Additionally, the maximum estimated take of DSL Habitat across all Covered Activities, as backstopped by annual and overall disturbance caps established in the CCAA and CIs, under the 2020 DSL CCAA is significantly lower than the Comptroller’s estimated take from Participants as well as the “cumulative effects” of take from non-participant activity, including sand mining operations – 34,690 acres under the 2020 DSL CCAA as compared to 66,113 acres under the Comptroller’s proposed 2019 CCAA. 6 Accordingly, the estimated disturbance of DSL Habitat across all sectors under the 2020 DSL CCAA is approximately 47.5% fewer acres than under the Comptroller’s 2019 proposal, and all activities by Participants that may result in disturbance would be subject to sector-specific Conservation Measures. This reflects a substantial net conservation benefit to the DSL and its habitat relative to the current baseline as well as relative to the Comptroller’s 2019 proposal. 6 All sand mines, including those with property that includes High and Intermediate Habitat, can participate in the 2020 DSL CCAA. Accordingly, the disturbance estimate of 16,560 acres for sand mining is conservative and intended to include all potential surface disturbance of DSL Habitat regardless of whether the disturbance is caused by a Participant or non-participant. This eliminates the need for a “cumulative effects” estimate, such as was included in the CCAA proposed by the Comptroller for impacts to High and Intermediate Habitat by non-participating sand mining operations.