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.