The Houston toad is an endangered species that is – or was – found from Harris County to Bastrop and a few nearby counties. Photo courtesy of Toby Hibbitts.
On a recent visit to a nature preserve in North Texas, I wandered around the pond margin, enjoying the numbers of cricket frogs that leapt out of the way. Frogs launched from hidden spots along the bank and seemed to vanish into the mud — camouflaged by their coloring and glistening skin that matched the wet mud almost perfectly.
As I left the water’s edge, I met a man I had seen fishing across the pond. Evidently he was trying a new spot. He was curious about what I was up to and had little reaction when I said I was looking at frogs.
“Any Houston toads?” he asked.
I told him no, there are no Houston toads around here. Their range is in Southeast Texas and they've never been spotted this far north.
It seemed he had heard about Houston toads from friends or family, and what he knew about them was that finding them on your property would be a calamity.
“They make it where you can’t do anything with your land. Gotta jump through a bunch of hoops.”
I asked if "they" meant the U.S. Fish & Wildlife Service (USFWS), and he said he didn’t know exactly who, but somebody.
I suggested that a lot of their remaining habitat is around Bastrop State Park, so maybe there aren’t many private landowners that are affected. (The USFWS website said that critical habitat was designated in Bastrop and Burleson Counties.)
“Don’t know about that. All I know is they’re tiny.”
I mentioned that they’re about the same size as a lot of other toads (about two or three inches from snout to butt). I didn’t want to contradict everything he said or seem like a know-it-all, but his lack of information about something he had some pretty strong opinions about was concerning.
Particularly the view that endangered species are big trouble for landowners.
CRITICAL HABITAT
The mottled gray underside of the Houston Toad. Photo courtesy of Bill Brooks.
The Houston toad is an endangered species that is – or was – found from Harris County to Bastrop and a few nearby counties. It is listed as endangered under the Endangered Species Act, and so USFWS plays a role in protecting them and their habitat.
At first glance, to the average person the Houston toad doesn’t look so different from a Woodhouse’s toad or a Fowler’s toad. They are particularly adapted to a few Southeast Texas spots with pine and deciduous woodland with deep sandy soil, where shallow, temporary pools allow them to breed in the spring.
If such places are not available, if they have been developed, converted to cropland, or significantly changed in other ways, the Houston toad disappears.
In the designation of critical habitat for the toad in 1977, the USFWS noted in the Federal Register that such designation does not forbid any human use, unless that use involves federal funding or permitting. It goes on to say, “Actually, a Critical Habitat designation applies only to Federal agencies, and essentially is an official notification to these agencies that their responsibilities pursuant to Section 7 of the Act are applicable in a certain area” (p. 27010). Designation of critical habitat does not allow the government to take someone’s land or to take over the use of it.
RULES AGAINST ‘TAKING’
Once a species is federally listed, private citizens and landowners cannot “take” them. To “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in any such conduct.” And until recently, “harm” included destroying habitat such that the species is killed or injured.
And that’s where the guy I met would have decided that the Houston toad brings such trouble. If a landowner has a pine grove where Houston toads live, and that landowner wants to clear the pines and fill in the pond where they breed, that is probably a “taking.” The endangered toads would pretty clearly be killed by that destruction of their habitat. If they knew that it was going on, in past years the feds could say “no.”
The federal administration currently in power is changing all that.
HABITAT DESTRUCTION AS ‘HARM’
First, let’s look at the reality of how nature works. Wildlife depends on habitat just like we depend on shelter, food, water and space to do what we do to live. We have turned much of the world into our habitat, so that we can find grocery stores, housing for purchase or rent, businesses stocked with the basics of modern life, and clean water from faucets, in almost any city or town in many places around the world.
Wildlife cannot engineer the world around them like we can, and so they depend on particular places that meet their needs. If we bulldoze those places, drain the wetland, build roads that crisscross them, the wildlife cannot necessarily move to a new spot and do just fine. The Houston toad cannot live in an agricultural field for example.
The Endangered Species Act has a definition of “harm” that focuses on hunting, killing, capturing, harassing, etc. As the Act was implemented, agency professionals added regulatory language that acknowledged that if you destroy the place where a species lives, you harm it, and quite possibly you wipe it out in that location.
That regulatory language is, of course, in conflict with people who want to convert that habitat to something else. The business of extractive industries, developers and others depends on radically changing the landscape in order to make money. Rich industrialists generally don’t care that a particular bird —or a particular toad — depends on that habitat. For many of them, it’s just business.
REMOVING HABITAT PROTECTION
In April of this year the agencies that administer the Endangered Species Act proposed rescinding the regulatory part of the definition of harm. That was the part that said if you destroy their habitat you harm the species. Now the only definition that matters is the one in the legislation that talks about hunting, shooting and so on. With the changed definition, the only way to harm an endangered species is to go after it with a shovel, so to speak. If you change the place where it lives so that it cannot survive, well, tough luck.
"There’s just no way to protect animals and plants from extinction without protecting the places they live,” said the Center for Biological Diversity, in an April press release, adding that the changes to ESA are opening the flood gates to "immeasurable habitat destruction." The Center also told me that "the rescission of the regulatory definition of ‘harm’ has not been finalized yet but could happen any day."
The man who told me the government would keep you from doing what you want with your land will have less to worry about, and maybe he’ll have fewer endangered species to bother with, as well.
OUR LAND VS THEIR LAND
The Texas Parks and Wildlife Department identifies 223 species of plants and animals as either threatened or endangered in Texas. Not all of those are federally listed, but all are at least state listed. And all of them need suitable places to live. And that requires our attention, if only to restrain ourselves so that we leave some places intact.
How do we resolve the tension between making a living and conserving creation? Where is the boundary between doing what we want with the land and acknowledging that other species live here, too, and everyone’s survival means sharing the planet?
We have a lot of work to do. Hopefully we can help usher in a time when everyone acknowledges the importance of habitat and our leaders do better at protecting it. We also need to do as much as we can to connect with average Texans and talk about the value of wildlife and wild places. We should listen, too, because government regulations can be heavy-handed even when intended for good. And educated, conservation-minded landowners can do a lot of good.
Federal agencies have tried a few strategies for working cooperatively with landowners, such as Conservation Benefit Agreements (combining the old Safe Harbor agreements and Candidate Conservation Agreements with Assurances). Under such agreements, the private landowner takes actions to benefit an endangered or threatened species (or a candidate for such listing). This might involve maintaining or restoring habitat, or some other beneficial action. In return, the federal agency agrees that it will not require any additional activities by the landowner.
Efforts such as those should continue. Agencies should be careful not to just surrender their responsibility to protect species and their homes, and at the same time they should make it easier for property owners to conserve nature on their land with minimal intrusion.
CONSERVATION ALLIES
Here is my guess about the guy I met at the preserve: he is mostly focused on private property rights and he might also care about the wild. Maybe he could be a conservation ally, especially if there was:
• Effective public conversation and education about the value of the natural world
• Accurate information to dispel rumors about the feds taking over our land
• Good faith exchanges in which everyone – landowners and nature advocates – is heard
Realistically, the law and the courts would still be necessary. This year is teaching us that courts, agencies, and laws may change in ways that weaken protections for species and habitats. Maybe we will get some of that legal protection back, but we have to remember that more is required.
Shared community opinions and values are needed. More of us should understand nature and its gifts, and that requires opportunities to experience nature and discover some of the wonder and delight that nature brings. We cannot force the rest of the world to find value in nature. It happens naturally as we experience the woods and wetlands and when the people around us share it and help us understand it.
Does that sound too idealistic? There will always be people who don’t share a love of nature and who have no interest in the self-restraint that might protect things for our common good. But what if a greater majority of folks supported conservation? What if taking care of nature was a bigger part of the culture? Then even the smaller and less significant things like Houston Toads might be more secure.