Is my property located in the known and potential habitat of the Houston toad?
The LPHCP covers an area of approximately 124,000 acres within northeastern Bastrop County. Generally, the plan area extends from the northeast section of the Bastrop-Lee county line to just north of the Colorado River, with portions of SH 71 and the Colorado River delineating the southern extent of the plan area. The western boundary generally follows east of Camp Swift and Lake Bastrop, then turns west to include Bastrop State Park along Hwy 95. The eastern extent is bounded by SH 21, FM 2104, and FM 153. A map of the LPHCP area can be viewed by clicking here.
What is incidental take?
The Endangered Species Act (ESA) makes it unlawful for a person to “take” a listed animal without a permit. Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” Through regulations, the term “harm” is defined as “an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”
“Incidental take” is that take that occurs during the course of otherwise lawful activities, e.g., building a home. One mechanism created by the US Fish and Wildlife Service (FWS) to allow private landowners to comply with the ESA while making profitable use of their property is the incidental take permit (ITP). In Bastrop County, landowners may receive incidental take authorization by participating in the Lost Pines Habitat Conservation Plan. Without an ITP, landowners who “take” a listed species may be subject to judicial action from federal agencies and private citizens alike.
Landowners face possible penalties under Section 9 of the ESA when property contains habitat of a listed species. Endangered and Threatened Animals of Texas spells out management guidelines approved by the regional director of the FWS that allows landowners to avoid the permitting process. This approval explicitly excuses landowners who follow the prescribed management guidelines from obtaining an ITP. For the Houston toad, these guidelines appear to preclude most if not all building activity. Any plan that fails to conform to the guidelines puts the property at high risk of incurring ESA penalties.
Is there a way to get incidental take coverage without participating in the LPHCP?
Yes. Landowners can submit an application to the US Fish and Wildlife Service Austin Ecological Field Services office for individual incidental take authorization.
Who can help me assess my risk of violating the Endangered Species Act?
Endangered Species Act: A Landowner’s Guide, published by the Real Estate Center of Texas A&M University, recommends that landowners take proactive steps to determine their level of exposure to penalties by performing a self-assessment of conditions on their property. The self-assessment should answer the following questions:
- Are listed species in the area?
- What constitutes habitat for any listed species?
- Does the property contain habitat for any listed species?
- If yes, is the habitat occupied?
- Do current activities disturb the habitat?
- Are proposed activities likely to disturb the habitat?
Additional guidance may be provided by the US Fish and Wildlife Service Austin Ecological Field Services office or by contracting with an environmental consultant.
Who enforces the Endangered Species Act?
The US Fish and Wildlife Service is the enforcement authority for land-based species.
What are the penalties for violating the Endangered Species Act?
Violators of the Endangered Species Act are subject to fines of up to $100,000 and one year's imprisonment. Organizations found in violation may be fined up to $200,000. Fish, wildlife, plants, and vehicles and equipment used in violations may be subject to forfeiture.
Individuals providing information leading to a civil penalty or criminal conviction may be eligible for cash rewards.
How can helping the Houston toad save me money on property taxes?
House Bill 604, which was adopted by the Texas Legislature in 2007, amended Section 23.51 of the Tax Code to allow certain land to qualify for appraisal as wildlife management land without the current requirement of being appraised as qualified open-space land at the time the land is converted to wildlife management use. In short, HB 604 makes it possible for landowners with property in endangered species habitat to move directly from market value to a wildlife tax valuation, which is the equivalent of an agricultural tax valuation.
HB 604 requires that the land be located within endangered species habitat, subject to a federal permit, and subject to a conservation easement. If your property is located within the LPHCP area, you will meet the first requirement. If your application to become a participant in the LPHCP for wildlife management is approved the second requirement will be satisfied. Finally, if you agree to convey a wildlife conservation easement to Bastrop County and the county agrees to hold that easement you will meet the last requirement. The conservation easement imposes affirmative obligations on you to manage the property for the benefit of the Houston toad and to prevent any use of the property that would impair its conservation value.
A flowchart of the wildlife management process can be viewed by clicking here. To learn about potential property tax savings, contact the Bastrop Central Appraisal District at (512) 303-1930.
What’s a Wildlife Conservation Easement?
Bastrop County’s Wildlife Conservation Easement (CE) is a legally binding, recorded agreement between the county and a landowner. Essentially, a CE requires that the easement portion of a property be actively managed for the benefit of the Houston toad. All activities conducted within the easement area are subject to compliance with the Wildlife Management Guidelines of the LPHCP. Wildlife CEs are not necessarily perpetual. A CE can be released by a landowner with 60 days notice to the county and it can also be revoked by the county for non-compliance.
My property is currently undeveloped, but I plan to build on it in the future. Can I designate a future homesite location in the Wildlife Conservation Easement?
No. Bastrop County adopted a policy in 2010 that a homesite area cannot be set aside in a Wildlife Conservation Easement.
Do I lose ownership of my property if I participate in the LPHCP?
No. You continue to own and manage your property.
If I become an LPHCP participant, who can have access to my property?
When you become a participant in the LPHCP you agree to grant access, with reasonable notice, to county agents and representatives for biological and compliance monitoring.
The county is required by its federal permit to conduct annual monitoring on participant properties. In the case of wildlife management, these visits include a review of wildlife management practices that have been implemented and guidance for completing the wildlife management annual report, which is due to the appraisal district each year.
I live in the plan area and currently have an agricultural tax valuation. Do I need to become a participant in the LPHCP to convert to wildlife?
No, you can convert to a wildlife tax valuation during any regular appraisal cycle without becoming an LPHCP participant, assuming you meet the requirements established by the Bastrop Central Appraisal District (BCAD). Becoming a participant, however, has advantages. You will be provided incidental take coverage for your wildlife management activities as long as they comply with the Wildlife Management Guidelines. You will also have access to the plan’s administrator to address any wildlife management issues or questions you may have as you implement your wildlife management plan.
What paperwork is required to participate in the plan for wildlife management?
Participants are required to submit a qualifying wildlife management plan and a Wildlife Management Notice of Intent application. If a landowner does not currently have an agricultural tax valuation, a Wildlife Conservation Easement is also required. A flowchart of the wildlife management process can be viewed by clicking here.
I completed all the paperwork to become a wildlife participant. What’s the next step to get the wildlife tax valuation?
Once you have completed your application with the LPHCP, you will submit your paperwork to the Bastrop Central Appraisal District (BCAD). BCAD requires a copy of your wildlife management plan, a copy of an LPHCP-issued Wildlife Management Notice of Receipt, and a copy of your recorded Wildlife Conservation Easement, if applicable. You will also need to submit an annual wildlife management plan report to BCAD.
Are there grant programs available to assist with implementation of habitat improvement projects to benefit the Houston toad?
Yes. Bastrop County administers a grant program for habitat improvement projects with mitigation funds that are generated through the purchase of Construction Certificates. Interested landowners should call or send a letter or email to the LPHCP Administrator to initiate the process. Landowners will work with the LPHCP Administrator to develop a project plan that benefits the Houston toad and addresses the goals and objectives of both the landowner and Bastrop County.
To implement a project, a Conservation Agreement is signed. Upon completion of the habitat improvement project, the landowner is reimbursed based on the cost-sharing formula in the agreement.
Can I be subject to rollback taxes if I lose my wildlife tax valuation?
A wildlife tax valuation is a form of an agricultural tax valution. Per Texas statute, you will be subject to up to five years of rollback taxes if you lose this valuation.
Do I need to purchase a Construction Certificate to build in Houston toad habitat?
Participation in the county’s LPHCP is at a landowner’s discretion. Purchasing a Construction Certificate, however, provides you with authorization for “take” of Houston toad habitat and also provides you with assurances through the US Fish and Wildlife Service’s “No Surprises” policy that no additional mitigation will be required as long as you fully and completely implement the terms of the LPHCP.
How much of my property can I develop?
The LPHCP can authorize one-half acre of residential development on lots less than five acres in size. For lots or tracts five acres or greater in size the LPHCP can permit up to one acre of development. Commercial developments can be authorized for up to one acre of development regardless of lot size. Any development exceeding one acre in size, LPHCP-permitted Conservation Subdivisions excepted, must seek authorization from the US Fish and Wildlife Service Austin Ecological Field Services office.
What’s the difference between an Implementing Agreement and a 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.
I want to do something on my property that’s not covered by the LPHCP. Now what?
If your planned activity, whether that’s development or agricultural use, cannot meet the requirements outlined in the LPHCP you can submit an application to the US Fish and Wildlife Service Austin Ecological Field Services office. That office can assist you with an individual incidental take permit for your activity.
Can I cut down trees on my property?
It depends. If you want to change a forested tract of land to one that’s non-forested, that will likely be a violation of the Endangered Species Act. Landowners wishing to convert native vegetation communities to intensive agricultural uses, for example, should consult individually with the US Fish and Wildlife Service prior to undertaking that activity to ensure that they won’t be subject to federal penalties.
Landowners wishing to cut down dead trees that may be a threat to person or property is allowable. In the case of wildlife management, thinning of Eastern red cedar and yaupon is encouraged.
What do I do if I find a Houston toad on my property?
Foremost, leave the toad alone and let it go about its way. If you locate a dead, injured, or sick Houston toad, or any other endangered or threatened species, contact the US Fish and Wildlife Service's Law Enforcement office in Austin, Texas, (512) 490-0948 or in San Antonio, Texas, (210) 681-8419 for care and disposition instructions. Extreme care should be taken in handling sick or injured individuals to ensure effective and proper treatment. Care should also be taken in handling dead specimens to preserve biological materials in the best possible state for analysis of cause of death. In conjunction with the care of sick or injured endangered/threatened species, or preservation of biological materials from a dead specimen, you should ensure that evidence intrinsic to the specimen is not unnecessarily disturbed.