If yes, is the habitat occupied? Do current activities disturb the habitat? Are proposed activities likely to disturb the habitat?

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1 Endangered Species Act: A Landowner s Guide 1 Endangered Species Act (ESA) Basic Provisions The U.S. Fish and Wildlife Service (FWS) of the Department of the Interior administers the ESA for land-based species. To comply with the ESA and maximize property potential, landowners must understand what the act does and does not allow. Section 9 Taking an endangered species violates the law, according to section 9(a)(1)(B) of the ESA. Most people interpret take to mean capturing or killing an endangered plant or animal. However, the ESA defines take as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct. Through regulation, the FWS further defines harm to include any activity that actually kills or injures wildlife and incorporates actions significantly impairing essential wildlife behavioral patterns, including breeding, feeding, or sheltering. Because the ESA allows both the U.S. Attorney General and private citizens to seek an injunction to prevent the taking of an endangered species, landowners face the prospect of both government and private individual intervention. Planned activities that will result in a take, such as land development, generally require a permit from the FWS. Landowners and land buyers must be aware of the consequences of violating the take provisions of the ESA. Incidental Take Permit One mechanism created by the FWS to allow private landowners to comply with the ESA while making profitable use of their property is the incidental take permit (ITP). In some areas, landowners may participate in a public Habitat Conservation Plan (HCP) held by a regional authority instead of pursuing an individual ITP. This alternative is available to landowners in Bastrop County who are undertaking activities within the Lost Pines Habitat Conservation Plan (LPHCP) area because the county is the holder of an ITP. Without an ITP, landowners who take a listed species are 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 ( index.phtml) 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. Proactive Plan for Landowners Landowners should consider taking 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? Lost Pines Habitat Conservation Plan Contact Bastrop County s Lost Pines Habitat Conservation Plan Administrator at for more information about the alternatives available to landowners for complying with the ESA. 1 Excerpts from Endangered Species Act: A Landowner s Guide reproduced with permission from the Real Estate Center at Texas A&M University. Technical Report 1648, November 2003, Charles E. Gilliland and Michael Mays. The complete Technical Report may be found at September 2, 2009

2 About the Houston Toad Houston toads are found in pine and/or oak woodlands underlain by pockets of deep sandy soils, with temporary pools of water available for breeding. This habitat type occurs within narrow bands of geologic formations in south central Texas. Small, isolated Houston toad populations have been found scattered across these formations in remnant woodlands. Houston toads are generally brown and speckled, but individual coloration can vary considerably, with some appearing to be light brown and others almost black. They also may have a slightly reddish, yellowish or greyish hue. Their legs have darker bands across them, and there are two dark bands extending from each eye down to the mouth. A variable white stripe usually extends down the middle of the back, but can be absent, and there are irregular white streaks along the sides of the toad s body. Their undersides are generally white with variable amounts of black speckling. In males the throat is black. Adult Houston toads are medium-sized (2 to 3.5 inches) with females larger and bulkier than males. As with most toads, they are stout-bodied animals with short legs and rough warty skin. They move by making short hops. The Houston toad is a very secretive species and is seldom seen, except on warm, humid evenings during its breeding season (January-June, with a peak in February and March), when males call to attract females. A breeding pond with calling males is known as a chorus. The chorus heralds the coming of spring. Echoing through the forest, the high clear trills sound much like the tinkling of small bells. Males vocalize by distending the vocal sac. When the sac is distended, the skin of the throat appears dark and bluish. Females of this species do not vocalize. After adult and young toads leave the breeding pond, they forage across the landscape looking for insects and other invertebrates, traveling up to a mile within a 24-hour period. Because their skin is moreor-less permeable to water, toads become dormant to escape harsh weather conditions, such as winter cold (hibernation) and drought (aestivation). They seek protection during this time by burrowing into sand or hiding under rocks, logs, leaf litter, or in abandoned animal burrows. Even though the Houston toad secretes distasteful chemicals, adults and young are known to fall victims to predators as diverse as spiders, snakes, turtles, owls, raccoons, and other frogs. September 2, 2009

3 Bastrop County U.S. Fish and Wildlife Development Services Endangered Species 806 Water Street Incidental Take Bastrop, Texas Permit Number Metro: 512 / TE Fax: 512 / Issued 04/21/08 Lost Pines Habitat Conservation Plan Construction Certificate Application Please print 1) APPLICANT INFORMATION: a) Name: First: Last: ID#: b) Company Name (if applicable): c) Contact Name: Title: d) Mailing Address: Apt/Unit/Ste Number: e) City: State: Zip: f) Phone Number: Day: Evening: Cell: g) Fax: 2) PROPERTY OWNER INFORMATION (If different from Applicant): a) Name: First: Last: ID#: b) Company Name (if applicable): c) Contact Name: Title: d) Mailing Address: Apt/Unit/Ste Number: e) City: State: Zip: f) Phone Number: Day: Evening: Cell: g) Fax: 3) PROPERTY INFORMATION: a) Appraisal District Property ID Number: R Physical Address b) Subdivision Name: OR Survey Name: c) Phase: Unit: Section: OR Abstract Number: d) Block: Lot: Acreage: OR Acreage: 4) TYPE OF LAND DEVELOPMENT PROJECT (Check One): Single-family Residential Construction and Use Expansion of Single-family Construction and Use Multi-family Construction and Use Expansion of Multi-family Construction and Use Commercial Construction and Use Expansion of Commercial Construction and Use Refer to Section 4.1 of the LPHCP Refer to Section 4.1 of the LPHCP RevisedConstCertApp doc Page 1 of 4

4 5) IDENTIFY A TIMETABLE FOR CONSTRUCTION ACTIVITIES: Beginning date of development related activities: Estimated completion date of development related activities: 6) DISTURBANCE AREA (Check One): 7) MITIGATION (Check One): 0.5 acres $1,500 -or- Conservation Easement* 1.0 acres (maximum, if property is 5 acres or larger) $3,000 -or- Conservation Easement* Expansion Size square feet $ -or- Conservation Easement* * The mitigation fee may be waived by conveying a Conservation Easement on at least four acres to protect and manage the habitat for the Houston toad in perpetuity. Refer to section of the LPHCP for additional information. 8) ATTACHMENTS REQUIRED: Application Fee: $120 Mitigation Fee: $ AND Implementing Agreement (IA) Signed and notorized IA OR Conservation Easement (CE) Signed and notarized CE Recording Fee: $ County Clerk s fee to record the IA or CE in the public records. Site Plan or other attachment delineating the area to be covered for incidental take (must be drawn to scale) Documentation that the tract/lot was legally subdivided prior to October 1, 2003; OR Natural Resource Inventory for legal non-platted tracts; OR Sufficient evidence that the development site will not, to the greatest extent practicable, adversely affect primary habitat as described in Section 2.0 of the Conservation Subdivision Guidelines 9) READ CAREFULLY AND INITIAL EACH STATEMENT TO SHOW YOUR ACCEPTANCE OF THE STATEMENT: I understand that the LPHCP will provide incidental take permit coverage for the incidental take of the Houston toad for the property and development activities identified in this application as long as the activities and use adhere to the approved plan and the guidelines set forth in this application. I understand that incidental take permit coverage for the incidental take of the Houston toad does not extend to any activities associated with land development not specifically identified in the Construction Certificate. I understand that Bastrop County retains the right to suspend or cancel a Construction Certificate if the development is not in accordance with the activities and use specified in the Construction Certificate, or if the mitigation requirements are not in compliance with the LPHCP. I hereby grant Bastrop County, its employees, and its contractors the right to enter the property, after reasonable efforts to provide notice and at reasonable times of entry, for the purpose of compliance monitoring. I understand that refusal to allow such access to the property may result in the suspension and cancellation of the Construction Certificate and incidental take permit coverage under the LPHCP. I understand and agree that the total area of disturbance on the property will not exceed an area greater than the disturbance area identified in this application. The allowable disturbance area does not include the driveway, provided the driveway is 16 feet wide or less. If the driveway is greater than 16 feet wide, the driveway will be considered part of and count toward the allowable disturbance area. I understand and agree that all clearing of vegetation on the property during pre-construction and construction will be limited to the disturbance area identified. RevisedConstCertApp doc Page 2 of 4

5 I understand and agree that the remainder of the property shall be maintained in its natural vegetation state. I understand and agree that use of construction equipment will be limited to the development area, and erosion control measures will be implemented as necessary to prevent soil erosion and sediment run-off from the property and sediment run-off into the non-disturbance areas of the property. I understand and agree that no logging, cutting of trees or removal of vegetation shall be done outside of the disturbance area identified on this application, with the exception of dead, dying, or diseased trees or tree limbs, which may be removed if the applicant desires. Also, trees and vegetation within a 16 feet wide linear path may be cleared for the maintenance of an existing fence or for the construction of a new fence line or similar type structure. If the applicant desires, common understory plants including yaupon, mesquite, and eastern red cedar found on the property may be removed by hand-cutting. Areas outside of the disturbance area that are disturbed during construction, will be replanted with native pines and/or oaks and other vegetation native to Bastrop County including loblolly pine, post oak, sandjack oak, blackjack oak, hickory, cedar elm, little bluestem, Indian grass, purpletop, beaked panicum, and shrubs. The revegetation requirement does not apply to driveways less than sixteen feet wide. I understand and agree that outside the disturbance area identified on this application, wetlands, ponds (including temporary ponds which form in drainage areas), or bogs located on the property will not be altered or disturbed. I understand and agree to avoid or minimize the use of herbicides and pesticides. If these products are used at all, they will be applied in full compliance with label guidelines for dilution and application. If I determine that an insecticide or herbicide treatment must be used, I will avoid contamination of temporary ponds and other natural wetlands or bogs by limiting the use of chemicals near them and by disposing of rinse water and empty containers in strict accordance with label directions. I understand and agree to control fire ant infestation by limiting soil disturbance, inspecting imported soil and nursery products thoroughly for fire ants, and by properly disposing of trash. If imported top soil and nursery products are to be used, they must be inspected for the presence of fire ants and/or their eggs. If fire ants and/or their eggs are present, the topsoil and/or nursery products shall be treated prior to use, and will only be used within the approximate disturbance area identified on this application. I understand that the issuance of a Construction Certificate is conditioned upon the payment of the required fees in Section 8 of this application. I understand and agree to notify the LPHCP Administrator within 30 days, in writing, of the completion of construction. The notice will include the permit number. I understand and agree that upon locating a dead, injured, or sick Houston toad, or any other endangered or threatened species, the applicant is required to contact the Service s Law Enforcement Office in Austin, Texas, (512) , or in San Antonio, Texas, (210) , 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, the applicant and their contractor/subcontractor have the responsibility to ensure that evidence intrinsic to the specimen is not unnecessarily disturbed. I understand and agree that conditions of the permit shall be binding on, and for the benefit of, the applicant and their respective successors and assigns. If the permit requires an amendment because of change of ownership, Bastrop County will process that amendment without the requirement of the applicant preparing any new documents or providing mitigation over and above that required in the original permit. The construction activities proposed or in progress under an original permit may not be interrupted provided the required conditions of an issued permit are being followed. I understand and agree that if during the tenure of the permit the project design and/or the extent of the habitat impact described in the habitat conservation plan is altered, such that there may be an increase in the anticipated take of the Houston toad, the applicant is required to contact the LPHCP Administrator and obtain authorization and/or amendment of the permit before commencing any construction or other activities that might result in take beyond that described in the LPHCP. RevisedConstCertApp doc Page 3 of 4

6 I understand and agree that the authorization granted by the permit will be subject to full and complete compliance. The applicant will be responsible for implementation of the LPHCP for the Houston toad and all specific conditions contained in the permit. Acceptance of a permit serves as evidence that the applicant understands and agrees to abide by the terms of the permit and all applicable Sections of Title 50 of the Code of Federal Regulations Parts 13, 17 and 21 pertinent to issued permits. BY SIGNING BELOW, I REPRESENT AND WARRANT THAT ALL INFORMATION CONTAINED IN THIS APPLICATION AND ATTACHMENTS IS TRUE, ACCURATE, AND COMPLETE. I REPRESENT AND WARRANT THAT I AM THE OWNER OF THE PROPERTY IDENTIFIED IN THIS APPLICATION. Signature: Date: Printed Name: Application Number: Date Received: OFFICIAL USE ONLY - DO NOT WRITE IN THIS AREA Received By: RevisedConstCertApp doc Page 4 of 4