Background

The Endangered Species Preservation Act, as passed by Congress in 1966, allowed listing of only native animal species as endangered and provided limited means for the protection of such species. The Endangered Species Conservation Act of 1969 intended to provide additional protection to species in danger of “worldwide extinction,” banning the import and subsequent sale of such species within the U.S.

A 1973 conference in Washington led to the signing of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which restricted international commerce in plant and animal species believed to be actually or potentially harmed by trade. Later that year, the Endangered Species Act (ESA) of 1973 was passed, which combined and considerably strengthened the provisions of its predecessors, and broke some new ground.(1)

Its principal provisions(1) follow:

• U.S. and foreign species lists were combined, with uniform provisions applied to both (see Section 4);
• Categories of “endangered” and “threatened” were defined (see Section 3);
• Plants and all classes of invertebrates were eligible for protection, as they are under CITES (see Section 3);
• All federal agencies were required to undertake programs for the conservation of endangered and threatened species, and were prohibited from authorizing, funding, or carrying out any action that would jeopardize a listed species or destroy or modify its “critical habitat” (see Section 7);
• Broad “taking” prohibitions were applied to all endangered animal species, which could apply to threatened animals by special regulation (see Section 9);
• Matching federal funds became available for states with cooperative agreements (see Section 6);
• Authority was provided to acquire land for listed animals and for plants listed under CITES (see Section 5); and
• U.S. implementation of CITES was provided (see Section 8).

Significant amendments were enacted in 1978, 1982, and 1988, but the overall framework of the 1973 act has remained essentially unchanged. The funding levels in the present act were authorized through fiscal year 1992, and have not yet been reauthorized. Current funding levels for the ESA are far below what would be necessary to carry out the basic provisions of the law. See a description of the amendments here at the U.S. Fish and Wildlife Service web site.

The Federal Endangered Species Act encourages federal and state cooperation in endangered species protection and recovery efforts, stating its intent to “encourage states and other interested parties, through federal financial assistance and a system of incentives, to develop and maintain conservation programs… and cooperate to the maximum extent practicable with the states.” In addition, Section 6 of the federal ESA details various methods of federal-state cooperation.

The most common way for the federal ESA to delegate power in implementing recovery and protection efforts to states is through the use of Section 6 agreements. Section 6 of the federal ESA allows federal agencies to transfer a portion of ESA implementation to state agencies via Cooperative and Management Agreements. Such agreements provide money to state agencies in the form of grants or other funding mechanisms.

Under Section 10 of the federal ESA, states also have the power to implement their own Habitat Conservation Plans (HCPs) with private landowners. Such contracts allow landowners to destroy listed species and their habitat in exchange for developing a plan to reduce the impact on species and habitat in accordance with an HCP. HCPs involve the use of incidental take provisions, which give permission to destroy species and habitat for a particular reason. They also involve safe harbor provisions, which exempt private landowners from ESA obligations if new species are attracted to a habitat that a landowner improves. Safe harbor provisions were recently struck down in federal court, ruled to be in violation of the ESA. HCPs are a highly controversial aspect of the ESA, criticized for not being grounded in sound science and inconsistent with the goals of recovery.

The federal act provides the basis for species protection and recovery nationwide, but it is not equally effective at protecting all species. Rollbacks in federal ESA protection, significant listing delays, special business or political interests, and lack of federal protection for state- or region-specific species are all gaps in federal species protection. That’s why state acts are so important in protecting native species. State acts generally incorporate federally-listed species, but are able to include others that may have particular ecological, economic, recreational, or heritage values in a particular state. In addition to helping fulfill federal ESA requirements through management plans and habitat conservation, strong state endangered species acts can provide additional protection to protect state-specific interests when the federal government cannot or fails to act.

What Else Can States Do to Protect Species?

State endangered species acts can act as a second layer of defense against the threat of biodiversity loss. For species that are already federally listed, state ESAs can provide another line of defense for the preservation and recovery of species and their habitat. State ESAs also enable a state to protect non-federally-listed species. Species are part of a state or region’s natural heritage, and are often key sources of economic and/or recreational benefits. While declining numbers of a particular species may not warrant federal protection, or may be held up in the federal listing process, effective state ESAs can ensure protection of species deemed important to the economic and ecological viability of a state. Recognizing that species don’t distinguish state borders and that most species are common to a certain region, state ESAs can also work to prevent ecosystem fragmentation by working with other states to develop regional ecosystem plans. Such plans can identify key habitats, protect ecologically important areas, and work to permit development on the least sensitive areas.

Currently, 45 states have their own endangered species acts. However, most state acts fall far short of what is needed to adequately protect imperiled species. Most of the existing state endangered species acts merely provide a mechanism for listing, and prohibit taking of, or trafficking in, listed species. No mechanisms for recovery, consultation, or critical habitat designation exist in 32 state acts. And no state act has a citizen suit provision to allow for citizen enforcement.

In Kentucky, for example, state law prohibits only the trafficking in of a state-listed species; no other provisions exist to protect the species. Alaska protects only vertebrate species and subspecies. And in five states – Alabama, Arkansas, Utah, West Virginia, and Wyoming – no state act exists.

As more and more oversight of endangered species is delegated to the states, state laws governing endangered species must be updated to ensure the protection and recovery of such species. California currently has the most comprehensive and effective state ESA, which includes listing and taking provisions, covers both plants and animals, and requires recovery plans and agency consultation on the impact of proposed endangered species projects. Yet even California’s ESA lacks a citizen suit provision that would strengthen protections for some of our most endangered plants and animals; in other words, every state ESA could be improved. In light of this, the State Environmental Resource Center (SERC) has compiled a list of provisions that every state endangered species act should include, in order to be effective in reducing the loss of biodiversity.

A strong state endangered species act should contain, at a minimum, several basic elements. Most states need to strengthen their protection efforts so that state acts do more than document the loss of species through the listing process. In addition to listing, basic elements should include prohibitions on take, recovery plans, critical habitat designation, consultation requirements, strong penalties, protection for plants, a citizen suit provision, and landowner incentives.

Based on this list of minimum provisions, SERC, in conjunction with Defenders of Wildlife, has crafted a sample bill for states to use in creating or amending state law. It was developed with input from state wildlife agencies and environmental organizations around the country. The sample bill is grounded in science, focusing on species recovery rather than simply survival. It also provides economic incentives for landowners and encourages protection of species before they become imperiled.