Bill Text

This sample bill, grounded in sound science, was crafted by SERC and Defenders of Wildlife, and contains the minimum basic elements that our organizations believe would make a state ESA effective in slowing the rate of extinction and biodiversity loss. The bill is targeted at addressing the main goal of all ESAs: to protect and restore those plants and animals that provide economic, ecological, recreational and spiritual value to the state’s citizens. A summary of the key provisions that all state ESAs should have follows, and additional information can be found at the Defenders of Wildlife web site.

Listing provisions must be grounded in hard scientific data.

• The definition of species should include subspecies and lower taxa.
• There should be a candidate or “species of special concern” category to provide an early warning system of species in danger.
• Listing decisions should be made by experts in the scientific community.
• The list should not be limited to animals, but should include plants as well.

Protecting habitat and planning recovery is critical.

• When critical habitat has not been federally designated, the state should protect it.
• Recovery plans should be required for species for which a recovery plan has not been promulgated under the federal act.
• State agency should consult on any action they fund, permit, license, carry out or authorize that may affect the recovery of a listed species.

Prohibitions must be comprehensive.

• Take, import, export, possession, transport and sale of state-listed species should be prohibited.
• These prohibitions should apply equally on public and private lands and to both plants and animals.
• The definition of a taking should include indirect harm such as habitat modification.
• For plants, each act should ban the collection of plant species on private lands because the federal act doesn’t ban collection unless state law specifically forbids the practice.
• Any exemptions (for scientific, propagation, educational or zoological purposes) must remain narrow.
• Incidental take permits issued to private landowners through Section 6 Habitat Conservation Plans must not be overused and must consistent with the goal of recovery.

Voluntary conservation agreements must be covered.

• Habitat acquisition and economic incentives to encourage private landowners to protect wildlife and habitat should be included.
• The goal of such agreements is recovery; as such, they must include objective and measurable goals and be based in sound science.

Penalties must be serious and strongly enforced.

• The stiffest penalties should be for knowing violations, with lesser penalties for unintentional violations, as well as criminal penalties that make violations a felony.
• Collected payments should go towards habitat restoration or the replacement of a species member.
• A citizen suit provision, currently lacking in all state ESAs, should be included. This allows citizen lawsuits to help protect species when state agencies are unable or unwilling to enforce violations.
• A trust fund provision to keep penalties, contributions and appropriations solely for use in a states endangered species program, should be included.

Endangered Species Act

Section 1. Short Title.

This Act shall be known and may be cited as the “<insert your state here> Endangered Species Act.”

Section 2. Legislative Findings and Intent.

(A) The Legislature hereby finds all of the following:

(1) Certain species of animals and plants have been rendered extinct as a consequence of human activities.

(2) Other species of animals and plants are in danger of extinction because their habitats are being destroyed or adversely modified, or because of over-exploitation, disease, predation, invasions of non-native species, pollution, or other factors.

(3) Wild species of animals and plants are of ecological, educational, historical, recreational, aesthetic, economic, moral, ethical, and scientific value to the people of this state, and the conservation of these species, their habitats, and ecosystems is in the public interest.

(B) The Legislature declares that it is the policy of the state to ensure the conservation and recovery of our state’s declining species, their habitats, and ecosystems, to reaffirm and strengthen this state’s commitment to protect them, and to safeguard our children’s and future generations’ economic and ecological future.

Section 3. Definitions.

As used in this Act:

(A) “Animal” means any member of the animal kingdom including, but not limited to, any mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod, or other invertebrate, or any part, product, egg, or offspring, or the dead body or any part thereof.

(B) “Conservation” means the restoration and maintenance of a species in the wild, and its habitat, so that the measures provided by this Act are not necessary.

(C) “Critical habitat” means specific areas of the state on which are found the physical or biological features essential to the recovery of threatened or endangered species.

(D) “Cumulative impacts” means those direct and indirect impacts on a species or its habitat that result from the proposed action and other past, present, and reasonably foreseeable future actions.

(E) “Department” means the <insert the department in your state responsible for overseeing the state Endangered Species Act>.

(F) “Director” means the director of the <insert the department in your state responsible for overseeing the state Endangered Species Act>.

(G) “Ecosystem” means a dynamic complex of plant and animal communities and their associated nonliving environment interacting as an ecological unit.

(H) “Endangered species” means any species of animal or plant in danger of extinction throughout all or a significant part of its range in the state. The term shall also include any species of animal or plant appearing on the United States list of endangered species as set forth by the federal Endangered Species Act of 1973, and contained in 50 C.F.R. sections 17.11-12, which presently exists or historically resided in this state. The term shall not include any species of the class insecta determined by the director to constitute a pest whose protection under the Act would present a significant health or safety risk to humans.

(I) “Harass” in the definition of “take” in the Act means an intentional or negligent act or omission that creates the likelihood of injury to a species by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering.

(J) “Harm” in the definition of “take” in the Act means an act, which is likely to kill or injure a species. Such act may include significant habitat modification or degradation where it may significantly impair essential behavioral patterns, including breeding, feeding, or sheltering.

(K) “Jeopardize” means to engage in an action that reasonably would be expected, directly, indirectly, or cumulatively, to reduce the likelihood of recovery in the wild of any listed species.

(L) “Person” means an individual, corporation, partnership, trust, association, or other private entity, or any officer, employee, agent, department, or instrumentality of the federal government or of a state, municipality, or political subdivision of a state.

(M) “Plant” means a member of the plant kingdom including seeds, roots, or other parts.

(N) “Private applicant” means any non-governmental person who has applied for an incidental take permit under Section 11 of this Act.

(O) “Reasonable and prudent alternatives” means alternative actions identified during consultation, which can be implemented in a manner consistent with the intended purpose of the action; are legal, and economically and technologically feasible; and, in the department’s judgment, would avoid the likelihood of jeopardizing the recovery of the species or result in the destruction or adverse modification of survival habitat or critical habitat.

(P) “Recovery” means the restoration and maintenance of a threatened or endangered species in the wild, and its habitat, so that the measures provided by this Act are no longer necessary.

(Q) “Species” means and shall include any subspecies of animals or plants and any distinct population segment of a species.

(R) “Species of special concern” means any species of animal or plant, which appears likely, within the foreseeable future, to become threatened throughout all or a significant portion of its range in the state.

(S) “Survival habitat” means the habitat necessary to support the survival of a listed species before critical habitat is finalized.

(T) “Take” means to disturb, harass, harm, pursue, hunt, shoot, wound, worry, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

(U) “Threatened species” means any species of animal or plant, which appears likely, within the foreseeable future, to become endangered throughout all or a significant portion of its range in the state. The term shall also include any species of animal or plant appearing on the United States list of threatened species as set forth by the federal Endangered Species Act of 1973 and contained in 50 C.F.R. sections 17.11-12, which presently exists or historically resided in this state. The term shall not include any species of the class insecta determined by the director to constitute a pest whose protection under the Act would present a significant health or safety risk to humans.

Section 4. Listing Procedure.

(A) The department shall establish and maintain a list of endangered species, a list of threatened species, and a list of species of special concern.

(B) The department shall determine whether any species is an endangered species, a threatened species, or a species of special concern based on any of the following factors:

(1) The present or threatened destruction, modification, or curtailment of its habitat or range;

(2) Over-utilization for commercial, recreational, scientific, or educational purposes;

(3) Disease or predation;

(4) The inadequacy of existing regulatory mechanisms; or

(5) Other natural or manmade factors affecting its continued existence.

(C)

(1) The department shall adopt guidelines by which an interested person may petition the department to add a species to, remove a species from, or change the status of a species on the list of endangered species, threatened species, or species of special concern.

(2) To be accepted, a petition shall, at a minimum, include sufficient scientific information that a petitioned action may be warranted. Petitions should also include, to the maximum extent practicable, information regarding the population trend, range, distribution, abundance, and life-history of a species, the factors affecting the ability of the population to survive and reproduce, the degree and immediacy of the threats to the species, the impact of existing management, and any other relevant information or material.

(3) The department shall make a final determination on petitions within 90 days of receipt.

(D) The department may, in the absence of a petition from an interested party, add a species to, remove a species from, or change the status of a species on the list of endangered species, threatened species, or species of special concern.

(E) The decision by the department to add a species to, remove a species from, or change the status of a species on the list of endangered species, threatened species, or species of special concern shall be subject to notice and comment.

(F) Notwithstanding any other paragraph in this section, the department may adopt a regulation, which adds a species to the list of endangered species, threatened species, or species of special concern:

(1) As an emergency regulation, if the department finds that there is any emergency posing a significant threat to the continued existence of the species; or

(2) If such species so closely resembles a listed species that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species, the effect of this substantial difficulty is an additional threat to a listed species, and such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this Act.

Section 5. Habitat Protection.

(A)

(1) The department shall, concurrently with any endangered or threatened listing decision pursuant to this Act, designate survival habitat for any species for which critical habitat has not been designated under the federal Endangered Species Act.

(2) The department shall designate survival habitat of species based only on the best scientific information available.

(B)

(1) The department shall, concurrently with the adoption of the final recovery plan for a species, designate critical habitat for any species for which critical habitat has not been designated under the federal Endangered Species Act.

(2) The department shall designate critical habitat on the basis of the best scientific information available, after taking into consideration the economic impact, and any other relevant impacts, of specifying any particular area as critical habitat. The department may exclude any area from critical habitat if it determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will impair the species’ recovery.

(C) Proposed designation of, or changes to, survival habitat or critical habitat for a species shall be subject to public notice and comment.

Section 6. Prevention Strategies.

(A) Ecosystem Protection.

(1) The department may establish such programs, including those for scientific research and the acquisition of habitat, as deemed necessary to protect and conserve the natural diversity of species and the ecosystems upon which they depend, including those species listed as endangered, threatened, or species of special concern pursuant to this Act.

(2) Through these programs the department may:

(a) Identify those ecosystems that are most impaired or imperiled, and develop measures, including habitat acquisition, to protect them;

(b) Identify key species within each identified ecosystem, and develop measures, including habitat acquisition, to conserve these species and their habitats;

(c) Identify measures that each state agency shall implement to conserve species of special concern or other species;

(d) Develop economic incentives to conserve species diversity and ecosystems;

(e) Develop criteria for evaluating the progress of state agencies toward implementing preventative programs; and

(f) Develop any other program consistent with the conservation goals of this Act and the preventative goal of this section.

(B) Conservation Agreements.

(1) The department is authorized to enter into written species conservation agreements with any person that:

(a) Promote the recovery of any threatened or endangered species; or

(b) Promote the conservation of species of special concern or other species not listed as threatened or endangered by this Act.

(2) Such agreements shall include:

(a) Objective and measurable conservation and/or recovery goals;

(b) Site-specific and other specific management actions necessary for achieving stated goals; and

(c) A monitoring plan and strategy to accommodate changes in circumstances.

(3) The department shall provide for an opportunity for public participation in the development of any conservation agreement under this section.

(C) Consistent with the requirements of this Act, the department may enter into agreements with any person for implementation of conservation and preventative programs established under this section.

Section 7. Recovery Plans and Procedures.

(A)

(1) For each threatened and endangered species listed pursuant to this Act for which a final recovery plan has not been promulgated under the federal Endangered Species Act, the department shall develop a plan to achieve the recovery of the species.

(2) The department shall, within 18 months after the date of listing a species as threatened or endangered, develop a draft recovery plan, which shall be made available for public notice and comment and, within 30 months after listing, promulgate and implement a final recovery plan for the recovery of each endangered species and threatened species listed pursuant to this Act.

(B) To the extent scientifically practicable and advisable, the department may develop recovery plans, which include several threatened or endangered species that utilize similar habitats or share a common threat or both. A multiple-species recovery plan shall address the recovery of each listed species as required by this section.

(C) The department shall incorporate in each plan:

(1) A description of site-specific management actions, noting those of the highest priority and greatest recovery potential, as may be necessary to achieve the plan’s goal for the recovery of the species;

(2) Objective and measurable criteria, including habitat needs and population levels, which when met would result in a determination, consistent with this Act, that the species be removed from the list of threatened or endangered species;

(3) Estimates of the time and cost required to carry out measures needed to achieve the plan’s recovery goal, including intermediate goals, as well as a description of government expenditures that hinder species recovery;

(4) A general description of types of actions likely to violate the take prohibition of Section 10 or the jeopardy prohibition of Section 8;

(5) A list of persons potentially affected by the goals or management actions set forth in the recovery plan; and

(6)A list of persons responsible for carrying out the goals or management actions set forth in the recovery plan.

(D) The director shall report every <insert number> years to the Legislature on the status of efforts to develop and implement recovery plans for all threatened and endangered species and on the status of all species for which such plans have been developed.

Section 8. Consultation.

(A) Each state agency shall consult with the department, in accordance with guidelines developed by the department after public notice and comment, on any action funded, permitted, licensed, carried out, or in any way authorized by the state agency that may adversely affect the recovery of any threatened species or endangered species. Each state agency shall ensure that its actions are not likely to jeopardize the recovery of any endangered or threatened species or adversely modify or destroy the survival habitat or critical habitat of any threatened or endangered species.

(B) Whenever a state agency consults with the department, the department shall issue a written determination on whether a proposed action is likely to jeopardize the recovery of any endangered species or threatened species or adversely modify or destroy survival habitat or critical habitat. The department shall base all determinations on the best scientific information available.

(C) If the state agency action is likely to jeopardize the recovery of any endangered or threatened species or adversely modify or destroy the survival habitat or critical habitat of any threatened or endangered species, the department shall recommend reasonable and prudent alternatives which would not jeopardize the recovery of any endangered or threatened species or adversely modify or destroy the survival habitat or critical habitat of any threatened or endangered species.

(D) If the state agency action is likely to impair the conservation of any species of special concern, the department shall, to the maximum extent practicable, recommend alternatives which would not impair the conservation of such species.

(E) Notwithstanding the prohibition against take contained in Section 10 of this Act, the department may permit any state agency to take an endangered species or threatened species in accordance with the requirements of Section 11 of this Act.

(F) The department shall, to the maximum extent practicable, adopt regulations providing for public notice and comment on all consultations conducted pursuant to this section.

(G) After initiation of consultation, the state agency, as well as any permit or license applicant, shall not make any irreversible or irretrievable commitment of resources with respect to the agency action, which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives or recovery measures.

Section 9. Tax Incentives.

(A) Property that is subject to an approved conservation agreement as defined in Section 6 shall be allowed a deduction or reduction in the amount determined under subsection (B) for all state and local real property taxes imposed on such real property for each year in which the conservation agreement remains in effect. The deduction or reduction allowed by this section shall be in addition to any other deduction or reduction allowed by law.

(B) The deduction or reduction allowed by this section shall equal <insert percentage> percent of the amount of state and local real property taxes imposed by law.

(C) The department is authorized to identify and recommend to the Legislature any other tax or other incentives designed to conserve or recover species and their habitats pursuant to this Act.

Section 10. Prohibitions and Exceptions.

(A) No person shall import into this state, export out of this state, take, possess, purchase, or sell any species, or any part or product thereof, that the department determines to be an endangered species or a threatened species, or attempt any of those acts, except as otherwise provided in this Act.

(B) Through permits, the department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions to import, export, take, or possess any endangered species or threatened species for scientific, zoological, or educational purposes, or for propagation in captivity of such plant or animal.

(C) The department may also issue permits authorizing a person to take any endangered species or threatened species to protect human health, provided that the endangered species may be removed, captured, or destroyed without permit by any person in emergency situations involving an immediate threat to human life.

(D) This section does not prohibit the sale of any endangered species or threatened species, or any part or product thereof, when the owner can demonstrate that the species, or part or product thereof, was in the person’s possession before the date upon which either the department listed the species as an endangered species or threatened species or prior to enactment of this law, whichever date is earlier.

(E) The department may issue regulations as it deems necessary to provide management flexibility for threatened species, provided that such regulations are consistent with the recovery of the threatened species.

Section 11. Incidental Take.

(A) The department may permit the taking of any endangered species or threatened species if:

(1) Such taking is incidental to, and not the purpose of, carrying out of an otherwise lawful activity;

(2) The taking will not impair the recovery of any endangered species or threatened species; and

(3) The applicant develops and implements an approved incidental take plan pursuant to subsection (B).

(B) An incidental take plan under this section shall specify the following:

(1) A description of the specific activities sought to be authorized by the incidental take permit and an analysis of potential alternatives;

(2) The individual and cumulative impacts that may reasonably be anticipated to result from the proposed actions covered by the plan;

(3) The recovery measures the applicant will implement to prevent, minimize, and mitigate the individual and cumulative impacts, and any adaptive management provisions that are necessary to respond to changes in circumstances that are likely to impair the recovery of any endangered or threatened species;

(4) Procedures for monitoring the effectiveness of the recovery measures in the incidental take plan;

(5) Reasonable anticipated costs of implementing the plan, and the funding that will be available, throughout the term of the plan, to implement the incidental take plan by a non-governmental applicant; and

(6) Other modifications to the plan or other additional measures, if any, that the department may require under unforeseen circumstances, and such other matters as the department determines to be necessary for the recovery of species consistent with this section.

(C) The department shall adopt regulations providing for public notice and comment on all incidental take plans and accompanying incidental take permits.

(D) The department shall not issue an incidental take permit until the applicant has posted a performance bond or other financial security to ensure adequate funding and implementation for each element of the plan.

(E) The department, not the non-governmental applicant, shall be responsible for recovery measures and costs that are in excess of those identified by the incidental take plan.

(F)

(1) The department may enter into “safe harbor” agreements with non-governmental applicants to promote the recovery of endangered species or threatened species by creating, restoring, or improving habitat, or by maintaining habitat for endangered species or threatened species. Under such agreements, the department shall permit the person to take endangered species or threatened species if the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.

(2) For each agreement under this subsection, the department shall establish a baseline requirement that is based upon the best scientific information available gathered from a recent field survey of the property that will, at a minimum, maintain or establish viable conditions for the species covered by the agreement. The baseline shall be expressed in terms of abundance or distribution of endangered or threatened species and quantity or quality of habitat.

(3) The department shall not enter into a safe harbor agreement for a geographic area for which a permit has been issued pursuant to subsection (A).

(G) If any person fails to abide by the terms of the permit authorizing an incidental take of an endangered species or threatened species, the department shall immediately suspend or revoke such permit.

Section 12. Penalties.

(A) Criminal Penalties.

(1) Any person who knowingly violates any provisions of this Act, or any regulation promulgated hereunder, or who knowingly causes or allows another person to violate any provision of this Act, or any regulation promulgated hereunder, is guilty of a class <insert lowest level> felony and shall be sentenced in accordance with the provisions of <insert section from your state’s criminal code>.

(2) Any person who is convicted of a second or subsequent violation of subsection (A)(1) is guilty of a class <insert higher level> felony and shall be sentenced in accordance with the provisions of <insert section from your state’s criminal code>.

(B) Civil Penalties.

(1) In addition to the penalties imposed under subsection (A), the department may assess a civil penalty of up to <insert amount> dollars for each knowing violation of this Act or any regulation promulgated hereunder and up to <insert amount> dollars for any other violation.

(C) The commission of a prohibited act under subsections (A) and (B) with respect to each individual animal or plant shall constitute a separate violation.

(D) Damages.

(1) Any person who, in violation of this Act, damages any member or habitat of a threatened species or endangered species shall be liable to the state for the costs incurred by the state in restoring or replacing the species or habitat, including reasonable costs of assessing such damage. Such damages shall be in addition to the civil or criminal penalties imposed under this section.

Section 13. Enforcement.

(A) The director, each conservation officer, and every law enforcement official throughout the state is authorized to enforce the terms of this Act.

(B) Any person may bring an action for declaratory and equitable relief and money damages against any other person alleged to have violated or to be violation of this Act or its regulations.

Section 14. Trust Fund.

(A) There is established within the state treasury a special fund to be known as the Endangered Species Trust Fund. The fund shall be administered by the department, and moneys in the fund shall be used exclusively to implement the purposes of this Act. The fund shall consist of moneys from the following sources:

(1) Moneys accrued from the sale of retail items officially sponsored by the department for the fund;

(2) Private contributions for the conservation and recovery of the state’s plants and animals;

(3) Penalties or fines resulting from enforcing violations of this Act;

(4) Proceeds of performance bonds and other deposits of financial security pursuant to Section 11(D) of this Act;

(5) Legislative appropriations; and

(6) Any other source of revenue designated for the fund.

(B) The fund shall be held separate and apart from all other moneys, funds, and accounts in the state treasury, provided that moneys received as deposits or contributions from private sources shall be deposited and accounted for in accordance with the conditions established by the agencies or persons making the contribution. Earnings on the investment of the assets of the fund shall become a part of the fund. Any balance in the fund at the end of a fiscal year shall be carried forward to the next fiscal year.

Section 15. Regulations.

The department shall adopt such regulations as are necessary to carry out the purposes of this Act.

Section 16. Agreements.

In carrying out the provisions of this Act, and in order to establish protection efforts across jurisdictions and ecosystems, the department may enter into agreements that are consistent with this Act with federal agencies, other state agencies, political subdivisions of the state, or other states.

Section 17. Savings Clause.

If any provision of this Act is found to be in invalid by a court of competent jurisdiction, such invalidity shall not affect the validity of the remaining provisions of this Act.

Section 18. Effective Date.

This Act shall take effect immediately upon its approval.