Many people think that if they own property in endangered species habitat they cannot use their property as a home site or develop it for commercial use. Although participation in the LPHCP does restrict what can occur on property within Houston toad habitat, the LPHCP does permit limited residential and commercial development. Incidental take authorization must be pursued from the US Fish and Wildlife Service (FWS) for development that directly impacts more than one acre.
Participation in Bastrop County’s LPHCP provides an alternative to seeking permission for incidental take of the Houston toad from the FWS and ensures that a landowner is in compliance with the ESA. Mitigation fees collected by the county are put into a fund that eligible private landowners may use to restore and enhance Houston toad habitat.
Single-family residential development or expansion: The LPHCP covers incidental take of the Houston toad resulting from the construction and use (including home business use) of single-family residences, after payment of a mitigation fee or the recording of a Conservation Easement (CE). Single-family homes include traditional “stick and mortar” structures, manufactured homes, and cabins for private use. Other structures and improvements related to the residential use of a tract include the construction and use of garages, sheds, small barns, manufactured home pads, small guest houses, pools, tennis courts, driveways, paths, fountains, gardens, yards, septic systems, waterlines, other utilities, and similar features.
Commercial and multi-family residential development or expansion: The LPHCP also covers incidental take associated with the construction and use of small-scale commercial or multi-family residential developments. Like single-family residential construction, a mitigation fee or recording of a CE is required.
LPHCP Application Process
1. Complete a Construction Certificate Application
- $120 application fee
2. Sign and record an Implementing Agreement (IA)
- ~$40 recording fee
3. Pay a mitigation fee
- $1,500 for one-half acre authorization
- $3,000 for one acre authorization
- Mitigation fee for expansion is based on the area of the expansion
For Construction Certificates issued for projects on single tracts or adjoining tracts under common ownership that contain at least five acres, participants have the option of paying the mitigation fee or waiving the mitigation fee and conveying a Conservation Easement on at least four acres to protect and manage habitat for the Houston toad in perpetuity.
Implementing Agreement or Conservation Easement?
An Implementing Agreement (IA) is a recorded legal document that requires land not impacted by development to remain in its natural vegetation state. Essentially, the IA requires that the landowner do no harm to Houston toad habitat, but it does not require active management of toad habitat. The IA is perpetual and binding upon any heirs and/or new owners of the property.
Like the Implementing Agreement, a Conservation Easement (CE) is perpetual and binding upon any heirs and/or new owners of the property. Unlike the IA, however, a CE requires active land management for the benefit of the Houston toad in accordance with an approved wildlife management plan. Since the land will be actively managed for the benefit of the Houston toad in perpetuity, the mitigation fee is waived.
The success of the county’s LPHCP is dependent on the participation of private landowners within the county. Participation in the LPHCP benefits county residents by providing assurances through the US Fish and Wildlife Service’s “No Surprises” policy, which states that no additional mitigation will be required as long as the landowner fully and completely implements the terms of the LPHCP.
The opportunity to participate in the LPHCP through the use of its subdivision development guidelines is intended to encourage new subdivision developments that protect and maintain Houston toad habitat. In addition to protecting habitat for the toad, conservation subdivisions provide open spaces for residents of the subdivisions to use and enjoy.
Activities that are likely to result in incidental take and that may be covered by the LPHCP include vegetation clearing, road construction, installation of utilities, and the construction and use of temporary contractor offices and equipment yards. The LPHCP also covers vegetation clearing and the construction of temporary sales offices associated with the marketing of subdivided lots or property.
Conservation Subdivision Design Options
Generally, there are two types of Conservation Subdivision designs that are permitted under the LPHCP—low density, large-lot designs and higher density, clustered designs. Low density, large-lot designs require:
- 10-acre tract size minimum
- Subdivision infrastructure (e.g., paved roads, utility corridors) and community common areas (e.g., clubhouses, playing fields) may not exceed 10% of the total subdivision area
- Minimum lot size of 3 acres, with the average lot size being 5 acres
- Up to 20% of each lot used for single-family residential purposes
- Location of residential use area is at the discretion of the individual lot owner
- At least 80% of each individual lot must be permanently protected for the benefit of the Houston toad
- Individual lot owners are responsible for management of toad habitat areas
Higher density, clustered designs require:
- 20-acre tract size minimum
- All development included within a single, contiguous area
- Developed areas, including all subdivision infrastructure, may initially include no more than 20% of the total subdivision area; the developed area may increase to 30% over time, with provisions
- Single-family and multi-family residences
- One dwelling unit per 1 acre; over time, land added to the developed area may include one dwelling unit per 0.5 acre
- Property Owner’s Association is responsible for management of toad habitat areas
The requirements for permitting a Conservation Subdivision include the requirements for all subdivision development, which are outlined in Section 3.5.1 of the County of Bastrop Subdivision Regulations. In addition, however, Conservation Subdivisions require areas set aside and actively managed for the protection of the Houston toad.
Since the protection and management of Houston toad habitat is required, there is no mitigation fee for a Conservation Subdivision Certificate. There is, however, an application processing fee of $1,500 in addition to the standard subdivision application fees.