A Texas-Sized Land-Use Plan: The Central Texas Rare Species Conservation Plan

The Texas Parks and Wildlife Department (TPW) is developing a new program known as "the Central Texas Rare Species Conservation Plan." The plan is designed to protect habitats of the golden-cheeked warbler and black-capped vireo, two migratory songbirds listed as endangered under the federal Endangered Species Act. This plan is for the birds. If implemented, the plan will endanger small landowners and cause habitat destruction, not conservation.

TPW’s plan is in the drafting process and is already a cause for concern. If allowed to continue, TPW will submit their plan to the U.S. Fish and Wildlife Service for approval. If approved, the plan could trigger federal land regulations on more than one million acres of private property in central and west Texas.

Locking-up private land: TPW’s plan provides for "safe harbor" agreements, under which landowners give up the right to "take" (e.g., remove, modify or disturb) any "baseline" or "suitable" habitat on their land, in exchange for permission to develop their property otherwise. The plan will also result in a prohibition on "taking" suitable habitat elsewhere, even on private land not enrolled in the "safe harbor" program. The U.S. Fish and Wildlife Service defines "suitable" habitat as "all lands that harbor or could support" listed species. Thus, this plan will lock-up private lands where no endangered species are even present.

Although TPW denies it, the plan is actually a "Habitat Conservation Plan" under the federal Endangered Species Act (ESA). Indeed, the most recent draft of the plan refers to itself as a "habitat conservation plan" at least twice. The ESA prohibits "any person" from "taking" threatened or endangered animal species. The only way one can legally "take" such animals (or their habitat, according to Bruce Babbitt’s interpretation of the statute) is to obtain a "take" permit under the ESA.

Landowners who choose to enter into the "safe harbor" agreement under TPW’s plan will receive this permit in exchange for their obligation to "maintain" suitable or "baseline" habitat present on their land at the time the agreement is signed. The permit authorizes landowners to "take" any habitat for the golden-cheeked warbler or the black-capped vireo above the "baseline" existing when the agreement is signed.

Ushering-in new federal controls: What experts know, but TPW won’t say, is that all landowners with "suitable" habitat for these birds may be required to get their own permit if they choose not to sign a "safe harbor" agreement. The incentive to sign is purely regulatory. As a result, land-use restrictions on rural private property will increase and expand well beyond what they are today in central and west Texas. The FWS has not restricted private land use outside of Travis County and a few other "hot spots" of ESA regulation. TPW’s plan will change that and usher in federal land-use controls where they are currently absent.

Cover for Bruce Babbitt: The plan invites federal regulation onto private property where the federal government fears to tread. It will give Interior Secretary Bruce Babbitt’s FWS the political and legal cover it presently lacks. Several years ago, the federal government tried to impose stringent land-use restrictions on Texans, and it failed. In 1994, the U.S. Fish and Wildlife Service attempted to designate "critical" habitat for the golden-cheeked warbler in 33 counties in central Texas. This sparked a grass-roots protest and influenced the 1994 gubernatorial race. Gubernatorial candidate George W. Bush was adamantly opposed to the federal government’s proposal in 1994, and so was the TPW. Ironically, that proposal would have locked-up far less land than TPW’s current plan.

Indeed, TPW’s plan covers more land than the 1994 proposal. This is because it covers both the warbler and the vireo, and includes both "critical" and "suitable" habitat in the Llano Uplift and Edwards Plateau "Eco-regions." These areas encompass more than 23 million acres, most of which is not habitat.

No Going Back: TPW claims this plan is "strictly voluntary," but it is not. The February draft states unambiguously that, "Even if all the landowners who participate in the program eventually drop out, their responsibility to maintain their baseline habitat" will remain. In other words, ALL landowners must "maintain" suitable habitat, even if they choose to opt out of the Safe Harbor program.

If a landowner is suspected of "taking" suitable habitat, as defined by the FWS, but is abiding by his "safe harbor" agreement, then there will be no problem. However, the plan also states that "If [TPW] finds that the landowner is not covered under Safe Harbor or is violating his agreement, the complaint becomes a law enforcement issue to be addressed by the USFWS" (emphasis added). In other words, TPW obligates itself to be the investigative arm of FWS law enforcement. Landowners who "are not covered under Safe Harbor" must abide by the plan as if they had chosen to voluntarily participate. It is precisely this threat of regulation, which TPW will aid and abet, that creates the incentive to enroll.

Creating Perverse Incentives: TPW’s plan increases federal land-use regulation of private property in the name of conserving species. However, if one lesson can be learned from the twenty-five year legacy of the Endangered Species Act, it is that land-use control does little to protect endangered species. Land-use regulations, and their consequent economic impacts, create perverse incentives that encourage landowners to destroy, rather than protect, habitat for endangered species.

Perhaps TPW is genuinely trying to help and protect private landowners from federal regulation. Yet this plan will not help. In fact, it will do far more harm than good to Texas landowners and the wildlife residing on their land. This plan should be scrapped before it is too late.

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Ike Sugg (isugg@cei.org [2]) is a Fellow in Wildlife and Land-use Policy at Competitive Enterprise Institute.