Wildlife Habitat Assesment Program: Laws and Regulations Applicable to TPWD Review
Compliance with the federal and state environmental laws discussed below is required on most development projects on public and private land. Compliance with many federal, state, and local regulations that are not discussed below may be required depending on your project impacts. TPWD recommends that developers thoroughly evaluate the need for permits and compliance under federal environmental laws. These include, but are not limited to, the National Environmental Policy Act, the Clean Air Act, the Resource Conservation and Recovery Act, and the National Historic Preservation Act. Projects may also require permits and compliance under state laws. These include, but are not limited to, the Texas Pollutant Discharge Elimination System, the Edwards Aquifer Rules, and the rules of the Texas Historic Commission.
Please note that project review by the TPWD Wildlife Habitat Assessment (WHAB) Program does not satisfy requirements for formal or informal consultation with or permitting by the U.S. Fish and Wildlife Service (USFWS), National Marine Fisheries Service, or other federal agencies.
In accordance with the Endangered Species Act (ESA) of 1973, the project proponent must determine whether or not the project would affect a federally-protected species. This includes those species and habitats listed as threatened or endangered under the ESA. The USFWS has jurisdiction over federally-listed species. If federally-listed species would be affected by the proposed project, then consultation with the USFWS would be necessary. Federally listed species by county may be found at USFWS Southwest Region Ecological Services. The USFWS Ecological Services Offices in Texas have responsibility for projects in your area and can provide information on species federally-listed as endangered or threatened. Contact information may be found at USFWS Texas Field Offices.
In addition to being protected by the Migratory Bird Treaty Act, Bald Eagles (Haliaeetus leucocephalus) and Golden Eagles (Aquila chrysaetos) are also protected by the U.S. Bald and Golden Eagle Protection Act of 1940. Both species migrate through Texas and populations of Bald and Golden Eagles are known to winter and nest in the state. The Bald and Golden Eagle Protection Act prohibits anyone from taking, possessing, or transporting a Bald Eagle or Golden Eagle, or the parts, nests, or eggs of such birds without prior authorization. This includes inactive nests as well as active nests. “Take” means to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb. Activities that directly or indirectly lead to take are prohibited without a permit. Additional information may be obtained at USFWS Eagle Permits.
Texas is within the Central Flyway for migratory birds. Fall and spring migrants use the region for temporary stops during travel between the northern and southern hemispheres. Migrants such as the Black-capped Vireo, Western Burrowing Owl and Purple Martin may breed and nest in Texas during spring, summer, and early fall. Other species, such as the Red-winged Blackbird may be year round residents.
Vegetation, including trees, shrubs, and grasses on a project may provide habitat for migratory birds. The Migratory Bird Treaty Act of 1918 (MBTA) prohibits taking, attempting to take, capturing, killing, selling/purchasing, possessing, transporting, and importing of migratory birds (including ground-nesting species), their eggs, parts and nests, except when specifically authorized by the Department of the Interior. This would include prohibiting harassment of nesting birds and young during the breeding season. In addition, the ESA and state law protect migratory birds that are listed as endangered or threatened.
General recommendations for migratory birds
TPWD recommends consulting the following sources to obtain current project specific information on migratory birds:
TPWD maintains the TPWD & Texas Partners in Flight Migratory Bird Ecoregional Checklist. This document lists bird species that seasonally migrate though the Central Flyway and gives the time of year when birds pass through or breed in the area.
TPWD maintains the TPWD Annotated County Lists of Rare Species. This application contains a list of the rare, threatened, and endangered bird species that occur or potentially occur in each county.
TPWD recommends that the bird species that use the project area be identified and best management practices for avoiding harassment and harm to migratory birds be implemented. In accordance with the MBTA, TPWD recommends that vegetation removal and ground disturbing activities be phased to occur outside of the nesting season (March 15 to September 15) and impacts to spring and fall migrants be avoided. Construction noise that could harass nesting birds should be phased to occur outside of the nesting season as well. Additional information regarding the MBTA may be obtained through the USFWS Region 2 Migratory Bird Permit Office at (505) 248-7882 or online at http://www.fws.gov/birds/Permits-Fact-Sheet.pdf.
Section 404 of the Clean Water Act (CWA) establishes a federal program to regulate the discharge of dredged and fill material into the waters of the U.S., including wetlands. The U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency are responsible for regulating water resources under this act. Although the regulation of isolated wetlands has been removed from the USACE permitting process, both isolated and jurisdictional wetlands provide habitat for wildlife and help protect water quality.
If regulations pursuant to the CWA apply to the proposed activities, the USACE Regulatory Branch in your area should be contacted for guidance and permitting requirements. More information on the US Army Corp of Engineers Southwestern Division can be found at www.swd.usace.army.mil.
A written response to a TPWD recommendation or informational comment received by a state governmental agency on or after September 1, 2009, may be required by state law. For further guidance, see Texas Parks and Wildlife Code, Section 12.0011 (c).
TPWD manages and maintains State Parks, Historic Sites, State Natural Areas, Wildlife Management Areas, and Visitors Centers like the Sea Center Texas, Texas Freshwater Fisheries Center, and the World Birding Center throughout the state. Proposed development projects may have the potential to directly or indirectly impact TPWD managed areas.
To cross a property owned by TPWD, compliance with the requirements of Chapter 26 of the Texas Parks and Wildlife Code would be required. Chapter 26 is after the Section 4(f) federal statute, codified at 49 U.S.C. §303. Chapter 26 requires that before a state agency can approve any project that will result in the use or taking of public land designated and used as a park, that state agency must provide certain notices to the public, conduct a hearing, and render a finding that there is no feasible and prudent alternative and that the project includes all reasonable planning to minimize harm to the park.
General recommendations for managed areas: TPWD recommends that during project scoping and planning, all TPWD managed areas in or near the project area be identified and avoided. If the project has the potential to adversely impact a TPWD managed area, the WHAB Program should be contacted at (512) 389-4571.
In addition to federally-listed species, Chapter 68 of the Texas Parks and Wildlife Code protects species considered to be threatened with extinction within Texas. An example of a state-listed threatened species is the Texas horned lizard (Phrynosoma cornutum). These species are listed as "State Threatened (ST)" on the TPWD Annotated County Lists of Rare Species.
It is the responsibility of the project proponent to determine whether the project would adversely affect a state-listed species. Any take (incidental or otherwise) of state-listed species is prohibited. For more information on the protection of state-listed species, including a list of penalties for take, please see the TPWD Protection of State-listed Species Guidelines(PDF 18.4 KB). Additional information on take prohibitions take may be found at State of Texas Threatened and Endangered Species Regulations.
State-listed species may only be handled (including relocation) by persons with a scientific collecting permit obtained through TPWD. For information on this permit, please see TPWD Permit Requirements.
General recommendations for protected species: During project planning and prior to construction, project areas should be surveyed for potential habitat for rare and protected (endangered or threatened) species as described at TPWD Annotated County Lists of Rare Species. If potential habitat for a protected species is found, construction impacts to these areas should be avoided to the greatest extent practicable. Coordination with the U.S. Fish and Wildlife Service is required if federally-listed species or their habitat would be adversely affected by the project. Coordination with the TPWD Wildlife Habitat Assessment (WHAB) Program is recommended if state-listed species or their habitat would be adversely impacted by the project.
If applicable, TPWD recommends locating construction easements and staging areas in previously disturbed areas and avoiding impacts to undisturbed native vegetation to the greatest extent practicable. Avoidance of impacts to natural areas is the most effective practice overall for conserving existing wildlife resources.
TPWD Permit Requirements
The TPWD Wildlife Habitat Assessment (WHAB) Program does not issue permits for project development. However, a TPWD permit from other programs may be required for certain project activities. The two most often required permits are:
- Marl, Sand, Gravel, Shell, or Mudshell Permit: If a project would disturb the bed of a perennial (flows most of the time) stream, or if the stream bed is more than 30 feet wide between the banks (even if it is dry most of the time), the State claims the bed and the sand and gravel in it as State-owned. A permit from TPWD is required to "disturb or take" streambed materials from a streambed claimed by the State. For more information please contact the Wetlands Conservation Program at 512/389-4583 or visit Marl, Sand, Gravel, Shell or Mudshell Permits.
- Scientific collecting permit: Section 68.015 of the Parks and Wildlife Code regulates state-listed species, and there is no provision for take (incidental or otherwise) of state-listed species. More information on the regulations that protect state-listed species can be found at State of Texas Threatened and Endangered Species Regulations. State-listed species may only be handled by persons with a scientific collecting permit obtained through TPWD. For more information on this permit, please contact the Wildlife Permits Office at (512) 389-4647or visit Scientific Collecting Permits.
A complete list of permits issued by TPWD can be found at Permits.