Fact Pack

Thanks to Defenders of Wildlife for much of the following information.(1)

The Problem

While a handful of species, such as the white-tailed deer, are thriving in our country, the vast majority are disappearing from this once rich landscape. A May 2004 report by the Center for Biological Diversity, “Extinction and the Endangered Species Act,” concluded that 108 species succumbed to extinction in the first 21 years following the creation of the Endangered Species Act. The study compared that number to the estimated natural extinction rate, which would predict the natural extinction of only four species in the same amount of time. Clearly, human activity is contributing to biodiversity loss.(2)

To stem the tide of this extraordinary loss of diversity, extraordinary measures are needed. Increased interagency cooperation, public involvement, and a focus on protection of whole systems rather than frantic piecemeal efforts are needed. The federal Endangered Species Act has served, and can continue to serve, as a catalyst for this change.

Until recently, state endangered species acts have played a relatively minor part in protecting this nation’s imperiled species. The federal Endangered Species Act has been the country’s chief vehicle for conserving our endangered plants and animals. Yet increasingly, attention is being turned to the states as Congress seeks to delegate more authority to the states, and the role of the states in protecting wildlife becomes more evident.

As laboratories for change, states can reassert their traditional role as stewards of the plants and animals within their borders. The federal act gives states wide opportunities to create their own programs of protection and to contribute to federal efforts as well. The states can play a critical role by increasing the legal protections given to their imperiled plants and animals.

The states may not be ready for this additional responsibility, however. Despite the dedicated efforts of many state wildlife experts, few state acts provide a truly effective program of protection for threatened and endangered species. The state acts vary widely, with only a handful providing even the basic protections found in the federal act. What is needed is a concerted effort to improve the “state of the states” and to give states the opportunity to become innovative leaders in this area.

What Can a State Act Do That the Federal Act Doesn’t?

State endangered species acts serve three critical purposes. Most importantly, a strong state act can serve as a first line of defense in protecting species not yet federally listed. They also can complement recovery efforts on the federal level. Further, states working together can provide ecosystem-wide protection across state boundaries.

The federal ESA was never intended to be the vehicle for protecting all species. Instead, it is simply an emergency room measure designed for critically imperiled species. A strong state act can prevent federal listing. A staff person with the Illinois Division of Natural Heritage sums it up: “If we and other states can protect and enhance populations of rare species, federal listing will be unnecessary.”

The Center for Biological Diversity found that the vast majority of those species who faced extinction during the first 21 years of the federal ESA were not on the federal list of endangered species, and that 43 of those went extinct during lengthy delays in the listing process.(2) State ESA’s can provide protection when delays in the federal process occur, and where economic, ecological, recreational, or heritage values for a species exist in a particular state.

For species already on the federal list, a state act can provide another line of defense. In New Mexico, for example, the state Department of Game and Fish is pooling its resources with the U.S. Fish and Wildlife Service to help protect the Rio Grande silvery minnow, a federally-listed species that was recently added to New Mexico’s list.

Finally, states can play an innovative role in preventing ecosystem fragmentation. In cooperation with their neighbors and the federal government, states could develop regional plans to identify key habitats, protect ecologically important areas and allow human development on the least sensitive areas.

What Should a State Endangered Species Act Look Like?

In general, most state acts fall far short of what is needed to adequately protect imperiled species. Most of the existing 45 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.

The State Environmental Resource Center (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 sound 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.