Endangered Species Act: A Landowner's Guide
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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
Charles E. Gilliland
Research Economist
Michael Mays
Graduate Research Assistant
Texas A&M University
December 2003
© 2003, Real Estate Center. All rights reserved.
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 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
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
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.”
3That’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
4PECK’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
5any 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.
6Proactive 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,
7such 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
8MAYS 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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