Endangered Species Act: A Landowner's Guide

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Endangered Species Act: A Landowner's Guide
Endangered Species Act:
  A Landowner's Guide
 Charles E. Gilliland                     Michael Mays
              Research Economist   Graduate Research Assistant

                   TR
TECHNICAL REPORT
   1 6 4 8
 NOVEMBER 2003
Endangered Species Act: A Landowner's Guide
Endangered Species Act:
 A Landowner's Guide
        Charles E. Gilliland
              Research Economist

             Michael Mays
        Graduate Research Assistant

                  Texas A&M University

                   December 2003
    © 2003, Real Estate Center. All rights reserved.
Endangered Species Act: A Landowner's Guide
Contents

1   ESA Basic Provisions
        Section 9
2       Candidate Conservation Agreements
3       Safe Harbor Agreements
        Habitat Conservation Plans
    Applying for an Incidental Take Permit
4       Habitat Conservation Plan Development
        Drafting the HCP
        Implementation Agreement
5       National Environmental Policy Act
        Permitting Phase
        Implementation Phase
6       Defending the HCP
        Public HCPs
7   Proactive Plan for Landowners
        Perform Self-Assessment
        Landowner's ESA 'Bible'
8       Commission Versus Omission
        Expert Consultation

                           ii
Endangered Species Act: A Landowner's Guide
Endangered Species Act:
                                        A Landowners' Guide
                                       Charles E. Gilliland and Michael Mays

A
         fter two previous Congressional         the National Marine Fisheries Service         or animal. However, the ESA defines
         acts failed to slow the extinction      (NMFS) administer ESA for both land-          take as “to harass, harm, pursue, hunt,
         rates of endangered species, the        and marine-based species. According           shoot, wound, kill, trap, capture, or col-
Endangered Species Act (ESA) of 1973 en-         to the FWS, Texas could provide habitat       lect or to attempt to engage in any such
shrined species protection as the ultimate       for 82 endangered and 16 threatened           conduct.” Through regulation, the FWS
societal objective. Species preservation         species. Texas species range from the         further defines harm to include any activ-
trumped all other considerations, even           blue whale, two of which were reported        ity that “actually kills or injures wildlife”
existing social and economic programs.           to have beached on the coast at different     and incorporates actions “significantly
   This uncompromising approach en-              times, to the coffin cave mold beetle.        impairing essential wildlife behavioral
countered vigorous opposition as the act            Endangered or threatened status            patterns, including breeding, feeding, or
took effect and unanticipated restrictions       provides species a broad range of pro-        sheltering.” In the Sweet Home deci-
inhibited planned projects. After a tiny         tections that can severely restrict how       sion, the U.S. Supreme Court upheld this
fish — a snail darter — initially killed the     landowners can use their property. Many       broader interpretation of take (115 S. Ct.
Tellico Dam project in Tennessee, the            Texas landowners’ objections to the ESA       2407 [1995]).
ESA came under the glare of the media            resulted from the uncertainty they faced         Most litigation addressing landowner
spotlight. Public policy began to soften         concerning use of their property after the    activities under the ESA has focused on
the act by creating some exceptions. The         FWS listed the Golden-Cheeked Warbler         differing Congressional and FWS and
incidental take permit, which resulted           as endangered. To comply with the ESA         NMFS interpretations of harm. The First
from 1983 revisions to the ESA, opened           and maximize property potential, land-        Circuit Court has ruled that harm means
the door to development even in the              owners must understand what the act           actually killing or injuring wildlife and
presence of endangered species.                  does and does not allow.                      requires proof of past or present injury.
   In the 1990s, as newly designated                                                           The Ninth Circuit, however, has ruled
                                                 Section 9                                     that harm includes actions that are “rea-
species gained ESA protection, landown-
                                                   Taking an endangered species violates       sonably certain” to cause injury in the
ers facing enforcement of the ESA raised
                                                 the law, according to section 9(a)(1)(B) of   future. The U.S. Supreme Court has not
a series of highly publicized challenges.
                                                 ESA. Most people interpret take to mean       explicitly chosen between these conflict-
Political fallout from those confrontations
                                                 capturing or killing an endangered plant      ing standards.
has prevented renewal of the act since
1993. However, Congress continues to
appropriate funds for ESA enforcement,
and it remains in effect. Some current and                                                                             MANY TEXAS
potential landowners, fearing applications                                                                             LANDOWNERS
of what they refer to as the “Darth Vader”                                                                             became personally
of environmental law, continue to regard                                                                               acquainted with
ESA enforcement as a potentially debilitat-                                                                            the Endangered
ing regulatory straightjacket. They see ESA                                                                            Species Act when
restrictions as a threat to the profitable use                                                                         the Golden-
of their land.                                                                                                         Cheeked Warbler
                                                                                                                       was added
   In view of continued opposition, policy
                                                                                                                       to the federal
makers continue to search for regulations
                                                                                                                       endangered
that can preserve endangered species
                                                                                                                       species list. This
while accommodating reasonable land
                                                                                                                       warbler winters
uses. Consequently, the ESA regulatory                                                                                 in Mexico and
framework now includes an array of mea-                                                                                Central America
sures designed to facilitate landowners’                                                                               but nests and
plans and protect endangered species.                                                                                  breeds only in
                                                                                                                       the juniper-oak
      ESA Basic Provisions                                                                                             woodlands of the
   The U.S. Fish and Wildlife Service (FWS)                                                                            Texas Hill Country.
of the Department of the Interior and

                                                                     1
Endangered Species Act: A Landowner's Guide
Little or no litigation has addressed            Each endangered species has unique       placed off-limits to any use other than
the other elements of the take definition.       habitat requirements, however, making       habitat for endangered species. But the
For example, no rulings have established         it necessary to judge the potential for     ESA has evolved to allow some excep-
the meaning of harass under the ESA.             land use restrictions on a case-by-case     tions to the Section 9 take prohibition.
However, activity that adversely impacts         basis. To assess the likelihood of future   These options vary depending on the
existing habitat qualifies as a take and, in complications, landowners and land              species’ status within the listing process.
the areas subject to Ninth Circuit juris-        buyers should investigate the ecosys-
                                                                                             Candidate Conservation
diction, activity that may destroy habitat       tem surrounding a property to identify
                                                                                             Agreements
in the future may also be a take. Texas          the possible presence of endangered or
                                                                                                Candidate species are those that may
is in the Fifth Circuit, which has not yet       threatened species. It may be prudent to
                                                                                             eventually       be proposed for listing as en-
seen litigation testing these specific is-       involve a specialist in endangered spe-
                                                                                             dangered.       Landowners       in areas inhabited
sues dealing with the meaning of harm.           cies at this step.
                                                                                                     by    candidate     species   can enter
Therefore, Texas landowners do not
                                                                                                     into    a Candidate      Conservation
know which standard may apply.
                                                                                                     Agreement (CCA) with the FWS
   Landowners running afoul of the
                                                                                                     or NMFS. Under ESA provisions,
take provision face both civil and
                                                                                                     landowners can obtain regulatory
criminal penalties from $25,000
to $50,000 per violation. Criminal
                                           Endangered           species    in Texas                  guarantees from the services by
                                           http://ifw2es.fws.gov/EndangeredSpecies/lists/            protecting habitat prior to listing.
penalties could include up to one
                                                                                                     These owners can voluntarily enter
year in prison.
   Because the ESA allows both the         Endangered           species,    all states               into a CCA that allows an inciden-
U.S. Attorney General and private          http://ecos.fws.gov/webpage/webpage_usa_                  tal take if and when the species is
                                           lists.html?state=all                                      listed.
citizens to seek an injunction to
                                                                                                          The ESA defines an incidental
prevent the taking of an endan-
gered species, landowners face the         Texas     Parks      and   Wildlife   Department          take    as one that is “incidental to .
                                           http://www.tpwd.state.tx.us/nature/endang/                . .  the  carrying out of an otherwise
prospect of both government and
                                           endang.htm                                                lawful     activity.” An owner with an
private individual intervention. Un-
                                                                                                     incidental      take permit legally could
der the act’s language, each action
                                                                                                     engage      in  activities  that destroy
that takes an endangered species
                                                    Planned activities that will result in a habitat    in  the  course    of using   that prop-
could result in imposition of a penalty.
                                                 take, such as land development, gener-      erty  for  an    otherwise    legal  pursuit.
An incident that results in the deaths of
                                                 ally require a permit from either the FWS      In negotiating the agreements, the
several members of an endangered spe-
                                                 or the NMFS. Landowners and prospec-        FWS    or NMFS strives for land manage-
cies thus could be considered separate
                                                 tive buyers must identify which activities  ment    practices that would make species
violations, each requiring a separate
                                                 are prohibited by the ESA. The FWS and      listing   unnecessary if used by all land-
penalty.
                                                 NMFS can assist in determining which, if    owners      in the area. In return for employ-
   The broad scope of the ESA and the
                                                 any, proposed actions are likely to result  ing  these    practices, owners receive a
substantial penalties for breaching it
                                                 in a take.                                  guarantee       that they will not face more
make it a critical consideration for both
                                                    If the land is in an area with no listed onerous      measures      should the endan-
current and prospective landowners.
                                                 species, ESA restrictions do not ap-        gered   species      listing eventually occur. If
Land market participants would un-
                                                 ply. If listed species inhabit the region,  an  incidental      take   occurs   after a listing,
doubtedly prefer to be able to apply a
                                                 however, landowners may well discover       but  the   landowner       remains    in compli-
standardized checklist to determine if a
                                                 protected habitat on their land. Land       ance   with     the  terms   of the  CCA,   the own-
given property contains critical habitat.
                                                 with extensive habitat may be effectively   er  can   continue      to use  those   specified
This would allow them to evaluate the
                                                                                                                practices. The CCA limits
potential for restrictions on a property’s
                                                                                                                much of the uncertainty the
use.
                                                                                                                landowner faces regard-
                                                                                                                ing the identified species
                                                                                                                and possibly contributes to
                                                                                                                species recovery without
                                                                                                                listing.

                                                                    THE TEXAS BLIND SALAMANDER
                                                                    and the Houston Toad are among Texas
                                                                    species protected by the ESA.

                                                                       2
Endangered Species Act: A Landowner's Guide
Safe Harbor Agreements
   The potential restrictions on land use
associated with the ESA make many
landowners reluctant to expand or en-
hance habitat on their properties. Own-
ers fear that if they attract larger numbers
of threatened or endangered species,
they may be required to maintain the
habitat at that higher level to avoid pos-
sible ESA penalties.
   The FWS, in an effort to encourage
rather than discourage voluntary land
management practices that could aid in
species recovery, offers the Safe Har-
bor program. Landowners signing Safe
Harbor Agreements can improve habitat
without fear of facing punitive action if
they later choose to discontinue their
extra efforts. The NMFS offers a similar
form of protection.                                       BREACHING THE ESA still carries substantial penalties, but landowners
Habitat Conservation Plans                                      now have options that may help them comply with the act and
                                                                                           maintain profitable use of their land.
   While Safe Harbor Agreements do not
normally allow an incidental take of the       Register. Next, the public reviews and        with the BCCP to obtain access to its
endangered species, a landowner may            comments on the HCP application and           ITP rather than submitting their own
apply for a Habitat Conservation Plan          the FWS and NMFS evaluate the com-            applications. Landowners can proceed
(HCP) with the FWS or NMFS to obtain           ments. Other documentation including          with development after the BCCP ap-
an Incidental Take Permit (ITP). The HCP       an Implementation Agreement and En-           proves their application. Fees range
process, created under Section 10 of the       vironmental Action Memorandum plus            from $55 to $5,500 per acre. Before ap-
ESA, seeks to balance endangered spe-          a legal review of the application may be      plying for an individual HCP, landown-
cies protection with economic develop-         required.                                     ers can contact the Transportation and
ment activities on a specified property.          The FWS or NMFS must verify that           Natural Resources Department of Travis
   The plan mandates practices the             the plan will “to the maximum extent          County to determine whether this op-
landowner must follow to secure the ITP.       practicable, minimize and mitigate the        tion would be less expensive and time
Once the HCP is in place, the landowner        impacts . . .”, that there will be adequate   consuming.
is able to undertake activities consis-        funding to complete the plan, and that           Landowners and landbuyers must be
tent with the plan even if an incidental       the HCP will not appreciably reduce the       aware of the consequences of violating
take of protected species results. The         likelihood of the survival and recovery of    the take provisions of ESA. The FWS and
landowner also may negotiate to avoid          the species in the wild. The agency also      the NMFS have created mechanisms to
further management and mitigation              provides guarantees that the plan will        allow private landowners to comply with
requirements under the so-called “No           be implemented. Even after the HCP is         the ESA while making profitable use of
Surprises” rule, which establishes the         approved, third parties can sue if they       their property. The prudent landowner
maximum requirements an owner will             consider it inadequate, adding to both        should consider engaging experts with
face, even if the FWS and the NMFS             the delay and expense of the process.         experience in filing applications for
begin to impose stricter requirements on       The entire application process may take       the various permits available to them.
other landowners.                              several years in complicated situations.      Despite efforts to simplify the process,
   The FWS and NMFS have pledged                  Entities such as cities, counties and      landowners wishing to develop areas
to conduct the HCP application review          citizen groups can negotiate an HCP to        with habitat for threatened or endan-
process as expeditiously as possible.          cover a geographic region. The City of        gered species must anticipate potentially
However, the process can be lengthy,           Austin and Travis County secured an ITP       costly and lengthy time delays.
depending on the potential effect on the       to cover habitat for the Golden-Cheeked
species in question. An application may        Warbler, Black-Capped Vireo and more           Applying for an Incidental
require specialized scientific studies         than 30 invertebrates in Travis County.               Take Permit
and opinions such as environmental             The ITP was issued in connection with
assessments or environmental impact            the HCP creating the Balcones Canyon-            Ask a developer to explain how to
statements.                                    lands Conservation Preserve (BCCP) in         obtain a permit to develop property in
   After the landowner submits the             Travis County.                                compliance with the ESA and you’re li-
application, the FWS or NMFS pub-                 Landowners within western Travis           able to hear something like, “You’d better
lishes an announcement in the Federal          County have the option of cooperating         sit down. This will take a while.”

                                                                   3
That’s certainly the truth. The process       estimate the project’s potential impacts      to ensure compliance with the plan.
to secure an ITP is at best long and             on listed species by surveying the prop-      The magnitude of required mitigation is
arduous. The worst-case scenario would           erty and evaluating field data. Attorneys     based on analyses of the biological and
intimidate the toughest, most persistent         ensure project compliance with the ESA        ecological data collected in the field.
among us.                                        and the services’ regulations. Communi-       Consequently, these biological data and
   In the context of the ESA, a “take” is        cations specialists describe the various      the credentials of the experts who col-
causing harm to a threatened or endan-           elements of the project and HCP to both       lect them often become the focus of the
gered species, either directly or indirect-      the services and the public.                  negotiations.
ly. An ITP is required if a development              Because of vast differences in biologi-      The type of information and num-
project may result in a take. Without an         cal features and habitat requirements         ber of experts needed to accurately
ITP, landowners who “take” a listed spe-         among species, landowners must                assess the amount of required mitiga-
cies are subject to judicial action from         adapt the composition of their teams to       tion depends on the complexity of the
federal agencies and private citizens            conform to their specific projects. For       development and the species involved.
alike.                                           example, cave-dwelling insects differ re-     Landowners can generally satisfy either
   The USFWS and the NMFS enforce the            markably from flying raptors. Therefore,      service’s requirements for biologi-
ESA for land and marine species, respec-         a team charged with writing an HCP for        cal data by employing a professional
tively. In this article, “services” is used to   the former would require different scien-     consulting biologist with expertise in the
refer to both organizations. Landowners          tific expertise than one writing a plan for   ESA and the protocols established for
should contact the appropriate service           raptors.                                      surveying the subject species. Biolo-
before beginning development to deter-               The team begins by pinpointing the        gists with Wildlife Society certification
mine whether an ITP is necessary.                HCP’s objectives and establishing strate-     (http://www.wildlife.org/professional/
                                                 gies to accomplish them. A time line for      index.cfm) lend credibility to data used
Habitat Conservation Plan                        drafting the HCP and securing the ITP is      because they have met the society’s
Development                                      established.                                  requirements, including coursework, and
   An ITP application must be accompa-               The HCP must clearly describe the         have five years of full-time professional
nied by an HCP, which ensures that any           proposed development activities and           experience. In addition, they must have
incidental take is mini-
mized and that the effects
of the take are mitigated.                                                                                          PUBLIC HABITAT
                                                                                                                    conservation
Developing an HCP typi-                                                                                             plans such as
cally takes from eight to                                                                                           the Balcones
24 months.                                                                                                          Canyonlands
   After initial, informal                                                                                          Conservation Plan
consultations between the                                                                                           in Travis County
landowner and one of the                                                                                            offer developers
                                                                                                                    an alternative to
services, the landowner
                                                                                                                    the complicated
generally assembles a                                                                                               incidental take
team of experts to draft                                                                                            permit application
the HCP. Although the                                                                                               process.
ESA does not mandate the
use of experts, enlisting a
team of experienced con-
sultants likely will save
both time and money,
especially for complex
developments. In addi-
tion, the services and the
public may more readily
accept plans developed by experts.               identify the potential impacts on listed      references and are subject to review by a
   Small-scale projects, such as building        species. Because the services and in-         certification review board.
a home, barn or addition to an existing          terested members of the public, includ-
                                                 ing environmental organizations, will
                                                                                               Implementation Agreement
building, usually do not require a team.
                                                 carefully review the HCP, team biologists        One step in the HCP creation process
Drafting the HCP                                 must provide a sound scientific basis for     requires an implementation agreement
  An HCP drafting team usually includes          the plan.                                     (IA) to be executed between the land-
a project manager, scientists, attorneys            Team members then negotiate with the       owner and the appropriate service. The
and communications specialists. The              appropriate service in establishing the       agreement legally obligates both parties
project manager oversees the develop-            extent of the foreseen take, what steps       to fulfill the terms of the plan. When the
ment plan, identifying activities required       will be required to mitigate the take and     HCP requires it, the IA includes a moni-
for a successful project. The scientists         what mechanisms will be put in place          toring program to evaluate the impact of

                                                                      4
PECK’S CAVE AMPHIPOD (below),
                                                                                               an endangered aquatic crustacean,
                                                                                               can be found in some underground
                                                                                               caves in the Edwards Aquifer. The
                                                                                               eyeless, unpigmented, subterranean
                                                                                               species is one of six karst invertebrates
                                                                                               covered by the Balcones Canyonlands
                                                                                               Conservation Plan.

HCP provisions on listed and candidate           The team conducting the NEPA
species over the life of the plan.            consultation determines which ac-
                                              tion is taken on a case-by-case basis.
National Environmental                        Land uses that clearly do not signifi-           the landowner’s team of experts negoti-
Policy Act                                    cantly affect the environment individu-          ates the terms of the IA and the HCP with
   The HCP must comply with the Na-           ally or cumulatively are excluded from           the service’s regional counsel and agency
tional Environmental Policy Act (NEPA)        further NEPA review. EAs are required in         biologists.
and any state environmental policy act        two circumstances: when a project does              Once informal agreement is reached
(SEPA) provisions that apply. Currently,      not qualify for a categorical exclusion          regarding the content of the HCP, the
Texas has no SEPA.                            but does not require an EIS or when              counsel and the biologists conduct a
   NEPA’s scope goes beyond the ESA,          significant effects are foreseen but do not      formal review of the biological impact of
requiring consideration of the impact of      clearly indicate the need for an EIS. The        the plan. Then they prepare an opinion
all federal agency actions on natural re-     results of the EA prompt a decision either       statement that evaluates the HCP’s ad-
sources, including water quality and air      to require an EIS or issue a “finding of no      equacy. This opinion may require stricter
quality. Each federal agency must consult     significant impact.”                             protective measures than those pre-
with the appropriate service to ensure                                                         scribed by the HCP draft. The landowner
NEPA compliance when they take ac-            Permitting Phase                                 may be required to add these measures
tions that could affect the environment.        The permitting phase, which can take           before the HCP is approved.
   Because the services are themselves        ten to 12 months, begins after the land-            Meanwhile, the HCP draft is released
federal agencies, the NEPA compliance         owner has provided drafts of the HCP,            for public comment. The landowner must
consultation step in the HCP process          IA and NEPA documents to one of the              review all comments and respond to the
amounts to the services consulting with       appropriate services for formal review           issues raised. New issues arising from the
themselves. However, the consultation         and public comment. During this phase,           formal review of biological impact and
should not be taken lightly. It can be                                                             public comments frequently neces-
both costly and time consuming.                                                                    sitate further negotiations.
   The NEPA consultation results in
                                                     Abundance of Abbreviations
one of the following actions:                BCCP     Balcones Canyonlands Conservation Plan      Implementation Phase
   • the HCP is excluded from further        EA       environmental assessment                       Approval of the HCP, execution of
     NEPA review,                            EIS      environmental impact study                  the IA and issuance of the ITP initi-
   • a formal environmental assess-          ESA      Endangered Species Act                      ate the implementation phase. The
     ment (EA) is required or                HCP      habitat conservation plan                   landowner, as the permit holder, is re-
   • an environmental impact study           IA       implementation agreement                    sponsible for implementing the HCP
                                             ITP      incidental take permit
     (EIS) is required. NEPA only                                                                 and ensuring that the terms of the
                                             NEPA     National Environmental Policy Act
     requires an EIS when the proposed                                                            HCP are not breached. Implemen-
                                             NMFS     National Marine Fisheries Service
     project involves a major federal                                                             tation includes specified monitor-
                                             SEPA     State Environmental Policy Act
     action that significantly affects the                                                        ing activities to verify compliance,
                                             USFWS    U.S. Fish and Wildlife Service
     quality of the human environment.                                                            including third-party inspections and

                                                                   5
any internal compliance mechanisms de- the services prefer to preserve existing              capped vireo habitat cannot be disturbed
lineated in the HCP and IA documents.          HCPs and usually try to work with land-       between March 1 and August 31.
   Monitoring mechanisms may include           owners to resolve problems.                      Fees for BCCP participation vary by
inspections of the development to ensure                                                     species and land use. Landowners are
that limits on building types, extent          Defending the HCP                             told the cost for participation within 15
of construction and amount of habitat              Because the ESA allows private citi-      working days of submitting an applica-
acreage consumed each year are not             zens to sue to ensure ESA enforcement,        tion. They must pay fees for all of the
exceeded. Landowners typically employ          landowners must be prepared to defend         acreage in the tract if it lies within the
third-party consultants to conduct these       the HCP and ITP. This underscores the         boundaries of the preserve, even if only
inspections.                                   need for a plan based on sound scien-         part of the tract contains habitat. By con-
   HCPs frequently require landowners          tific principles. It is unlikely that a court trast, under an individual ITP, payments
to “contribute” payments to the National       would overturn a scientifically credible      would normally be for the actual number
Fish and Wildlife Fund to mitigate the         HCP, but a lawsuit could further compli-      of acres of habitat on the tract.
effects of habitat destruction. This, too,     cate and delay the process.                      The publicly held BCCP/ITP offers a
would be monitored. These monitoring                                                         timesaving alternative to the individual
activities continue for the duration of the
                                               Public HCPs                                   ITP process. However, mitigation costs
permit.                                            In some areas, landowners may partic-     may be higher. When time is not a factor,
   HCPs can last as few as five years or as ipate in a public HCP held by a regional         landowners may opt for the lengthier
many as 50. The typical HCP is in effect       authority instead of pursuing an indi-        individual permit process. However, that
for 30 years. Once an HCP expires, the         vidual ITP. In Texas, as previously noted,    option applies only to parts of western
agreement is either renewed or dis-            the City of Austin and Travis County have     Travis County.
solved. Generally, the USFWS expects           cooperated with USFWS to establish an            Landowners planning development
species in the HCP area to recover, mak-       HCP covering the habitat of the golden        that may threaten endangered spe-
ing HCP renewal unnecessary.                   cheeked warbler, black- capped vireo          cies and their habitat face a long and
   Certain contingencies may cause             and six karst invertebrates in western        daunting process to ensure compliance
the services to require amendments             Travis County. The BCCP holds a 30-year       with the ESA. The sooner they begin the
to existing IAs, ITPs or HCPs. When a          HCP.                                          process, the better.
species not previously covered by an               To participate, landowners must sign         For more information on incidental
ITP becomes listed within the HCP area         a contract with the Balcones Canyon-          takes and HCPs, see the USFWS publica-
after implementation, or if a landowner        lands Coordinating Committee. Usually,        tion “Habitat Conservation Plans” at http:
wishes to add land or seek coverage            clearing for construction can begin when //endangered.fws.gov/HCP/HCP_Inciden-
for previously nonpermitted activities,        the landowner receives the participation      tal_Take.pdf; and the Balcones Canyon-
amendments to the HCP would be                 certificate. However, land containing         lands Conservation Plan website http://
required.                                      golden-cheeked warbler and black-             www.co.travis.tx.us/tnr/bccp/default.asp.
   Property owners can avoid
the possibility of further
amendments by incorporat-
ing “no surprises” assurances
into their HCP. “No sur-
prises” assurances amount to
regulatory guarantees that no
additional land use restric-
tions or financial compensa-
tion will be required. These
assurances apply only to
species already covered by
an ITP and exempt a land-
owner from more extensive
mitigation requirements even
in light of new research. “No
surprises” assurances are not
automatic — they must be
negotiated during the permit-
ting phase.
   A landowner may face
criminal prosecution if an
HCP is breached. However,
                                       BLACK-CAPPED VIREOS, a Texas endangered species, build cup-shaped nests low to the
because the HCP process is             ground in shrubs such as shin oak or sumac. The birds return to the same territory to nest
so complicated and lengthy,            throughout their lives.

                                                                   6
Proactive Plan                       Know,” Tierra Grande, October 2002,           landowner’s ESA “bible.”
                                               http://recenter.tamu.edu/pdf/1587.pdf).          The book includes all species listed
         for Landowners                        If the habitat is occupied, disturbing it     in Texas along with detailed, illustrated
   Fear of violating the ESA and frustra-      constitutes a “take” under the ESA. Land      descriptions of habitat requirements,
tion with the complicated process to           that contains no habitat suitable for ESA-    breeding and feeding behavior and ap-
secure an ITP often drive landowners           listed species is not subject to penalties.   proved management practices. Using
in one of two directions. Some wave a          Owners can safely presume that land           this guide, landowners can inspect the
white flag and invite the USFWS to scour       use activities may be undertaken without      property for threatened or endangered
their land for signs of habitat. Others        risk.                                         species habitat.
resort to a “shoot, shovel and shut up”            If the land contains habitat, but the        For example, Bastrop County is home
strategy, hoping to escape penalties by        habitat is unoccupied, disturbance or         to the Houston toad, an endangered
eradicating threatened or endangered           destruction of the habitat will not incur     species. Landowners wanting to build
species habitat.                               a penalty. But the landowner must prove       homes or construct improvements in
   Before opting for either of these           to the satisfaction of the USFWS that the     that area can learn from Endangered
extremes, landowners should consider           habitat is unoccupied.                        and Threatened Animals of Texas that
taking proactive steps to determine their          Presence of suitable, occupied habitat    the toad prefers “large areas of pre-
level of exposure to penalties.                increases the likelihood of encountering      dominantly sandy soils greater than
                                               ESA restrictions. Land uses that do not       40 inches deep. . . .” Landowners can
Perform Self-Assessment
                                               alter or disturb habitat do not result in a   then study Bastrop County soil maps to
   So how do landowners know if condi-         “take” of a listed species, and therefore     locate those soil types. Information on
tions on their properties necessitate          represent no risk of ESA penalties.           local soil surveys is available through the
an incidental take permit and habitat              Land uses that alter or disturb habitat   Natural Resources Conservation Service.
conservation plan? Inviting the USFWS to       — building or development activity, for       To locate the nearest office, go to http://
inspect the land is one way to find out, but   example — probably call for consultation      offices.usda.gov/scripts/ndCGI.exe/oip_
the lengthy process may be unnecessary.        with the USFWS or the Texas Parks and         public/USA_map.
Instead, landowners can perform
a self-assessment of conditions
on the property.
                                                                                                                 DO SOME
   Self-assessment consists
                                                                                                                 HOMEWORK.
of classifying areas within a                                                                                    Resources such
property based on whether they                                                                                   as soil maps and
contain habitat for a threatened                                                                                 a guide to Texas
or endangered species, whether                                                                                   endangered and
the habitat is occupied and                                                                                      threatened species
how much the proposed land                                                                                       help landowners
use will disturb the habitat.                                                                                    determine whether
Once the landowner has identi-                                                                                   they are at risk for
fied key aspects of the property,                                                                                ESA penalties.
a reasonable ESA compliance
strategy becomes clearer.
   The self-assessment should
answer the following questions:
  • Are listed species in the
    area?                                      Wildlife Department (TPWD). Ultimately,          If the land in question and surrounding
                                               such land may require an ITP. However,        properties do not contain the preferred
  • What constitutes habitat for any
                                               landowners should confine the consulta-       soils, the property probably contains no
    listed species?
                                               tion to the specific areas containing habi-   toad habitat. Searching for particular
  • Does the property contain habitat          tat rather than opening the entire property   types of vegetation and wetlands may
    for any listed species?                    to inspection.                                further reduce the probability. If those
  • If yes, is the habitat occupied?                                                         soil types do exist on the property along
                                               Landowner’s ESA ‘Bible’                       with certain vegetation and wetlands, the
  • Do current activities disturb the
                                                  The first step in evaluating the risk      risk of ESA penalties is high.
    habitat?
                                               of penalties involves researching                Golden-cheeked warblers prefer
   • Are proposed activities likely to         threatened and endangered species to          moist, steep hillsides like canyon walls
     disturb the habitat?                      identify those that may inhabit the area.     with mature Ashe juniper mixed with
  Landowners face possible penalties           Endangered and Threatened Animals of          hardwoods. Maintaining the canopy
under Section 9 of the ESA when property       Texas (Texas Parks and Wildlife Press,        cover of trees is critical to preserving
contains habitat of a listed species (for a    1996; ordering information is at http:        golden-cheeked warbler habitat. Because
discussion of penalties, see “Endangered       //www.tpwd.state.tx.us/news/press/            clearing a building site in such a location
Species Act: What Landowners Should            index.htm) is widely considered the           would destroy a portion of the canopy,

                                                                   7
such activity would most likely constitute    Commission Versus Omission                    for this type of inspection. They can
a take under ESA.                                Activities that result in a take of a      provide the landowner with expert assess-
   Endangered and Threatened Animals          species are called acts of commission.        ments of the extent of potential habitat on
of Texas spells out management guide-         However, another option for landowners        a property. There is no fee for consultation
lines approved by the regional director       may be doing nothing — an act of omis-        with the TPWD and TPWD biologists are
of the USFWS that allow landowners            sion. Acts of commission result in USFWS      bound by law to maintain confidentiality.
to avoid the permitting process. This         punitive action; acts of omission do not.        The disadvantage of using TPWD
approval explicitly excuses landowners           For example, East Texas is home to the     biologists is that the agency does not
who follow the prescribed management          red-cockaded woodpecker. Landown-             have the manpower to serve all the land-
guidelines from obtaining an ITP.             ers harvesting timber in this area would      owners requesting consultations. A wait
   For the Houston toad, these guidelines     violate the ESA if nesting red-cockaded       is usually necessary.
appear to preclude most if not all build-     woodpeckers occupied the stand of                Depending on the results of the TPWD
ing activity. Any plan that fails to con-     timber being cut.                             inspection, it may be necessary for the
form to the guidelines puts the property         However, red-cockaded woodpeckers          landowner to hire a professional consulting
at high risk of incurring ESA penalties. A    prefer forest with little or no understory    biologist, a potentially costly undertaking.
prudent owner should therefore consult        — trees and shrubs that grow between          Fees vary widely based on several factors.
with a professional. Even then, plans to      the forest canopy and the ground cover.       Often, only a few biologists are qualified to
build would likely require an ITP.            A landowner could allow the understory        evaluate a particular species. Property size
   Some land-use activities may improve       to grow (an act of omission) until the        and the intensity of the development goals
an endangered species’ habitat. The           woodpeckers vacated the area, at which        can further affect the number and type of
black-capped vireo prefers a mixture          time the landowner could harvest timber       biologists required. Factors such as these
of grasslands and shrubs. Studies have        without violating the ESA. This act of        obviously affect costs.
shown that excessive browsing by an           omission would not constitute a “take”           Congress authorized the ITP process
overabundant deer population can              under the law. By doing nothing, the          to allow human activities to continue
destroy the kind of brush the birds prefer.   landowner lets Mother Nature resolve          while affording protection to endan-
A landowner with vireo habitat could          the ESA habitat issue.                        gered creatures. Landowners should take
initiate an intensive hunting operation to                                                  care to identify habitat and endangered
control deer populations without running      Expert Consultation                           species on their properties to ensure
afoul of the ESA. A well-designed game          When self-assessment prompts land-          compliance with ESA. A proactive stance
management plan that did not destroy          owners to consult an expert, choosing a       allows landowners to comply with the
habitat probably would enhance vireo          qualified consultant can be difficult. TPWD   ESA and conduct land-use activities with
recovery by limiting destruction of brush.    biologists are an often-overlooked resource   minimum interference.

                                                                                                                            1203-1648

                                                                  8
MAYS BUSINESS SCHOOL
     Texas A&M University                                            http://recenter.tamu.edu
          2115 TAMU                                                        979-845-2031
College Station, TX 77843-2115                                      800-244-2144 orders only

                                          DIRECTOR
                                  DR. R. MALCOLM RICHARDS

                                  ADVISORY COMMITTEE

           CELIA GOODE-HADDOCK, CHAIRMAN             NICK NICHOLAS, VICE CHAIRMAN
                               College Station       Dallas
                           JOSEPH A. ADAME           CATHERINE MILLER
                                Corpus Christi       Fort Worth
                           DAVID E. DALZELL          JERRY L. SCHAFFNER
                                      Abilene        Dallas
                              TOM H. GANN            DOUGLAS A. SCHWARTZ
                                        Lufkin       El Paso
                          JOE BOB McCARTT            LARRY JOKL, EX-OFFICIO
                                     Amarillo        Brownsville

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