The Endangered Species Act in the States

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The U.S. Fish and Wildlife Service in November 2014 determined the Gunnison sage-grouse would be listed as “threatened” under the Endangered Species Act. The decision prompted opposition from local and state officials in Colorado, with Gov. John Hickenlooper saying the state would bring legal action. The state believes the decision to list the bird was flawed and failed to recognize state and local conservation efforts.

“In short, this is a major blow to voluntary conservation efforts and we will do everything we can, including taking the agency to court, to fight this listing and support impacted local governments, landowners and other stakeholders,” Hickenlooper said in a press release.1

Frustration with the Endangered Species Act has increased over time as more species are considered for listing and as the critical habitat areas of a species continue to overlap with land use and development. As the balance gets more difficult, state and local governments—along with interested parties and federal agencies—are working harder and closer to develop partnerships and action plans for preventing a species from being listed rather than mitigating the effects after it is listed.

Overview of the Endangered Species Act
Congress passed the Endangered Species Act in 1973 in response to a growing threat of extinction to numerous species. The act formed the U.S. Fish and Wildlife Service, which operates under the Department of Interior. The federal agency is tasked with identifying and protecting endangered and threatened species based on scientific evidence.

  • Endangered species are plants and animals that are likely to go extinct unless protected and threatened species are likely to become endangered.
  • Species are protected under the act by prohibiting the “take” of a listed animal—defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.”2
  • Plants are not protected from a take, but it is illegal to collect or maliciously harm listed species on federal land.
  • Some 1,570 species are listed as threatened or endangered, and in 2014 the U.S. Fish and Wildlife Service considered an additional 146 species for listing.
  • The goal of the Endangered Species Act is to recover the species so protections are no longer needed. Biologists, species experts and others write a recovery plan to establish the steps to restore a species.
  • Less than 1 percent of the species listed have been recovered and delisted.

Partnerships with States
Federal partnerships with states and landowners are essential to the success of the act. States possess primary authority for protection and management of fish, wildlife, plants and their habitats, and more than two-thirds of federally listed species have some part of their critical habitat on private land.

  • Section 6 of the act mandates that the U.S. Fish and Wildlife Service cooperate to the “maximum extent practicable with the States” and allows the secretary of the Interior to “enter into a cooperative agreement with the State for the purpose of assisting in implementation of the State program.”3 
  • Section 10 of the Endangered Species Act can be used by landowners, including private citizens, corporations, tribes, states and counties that want to develop property that is inhabited by a listed species. The act allows for:
    • The development and approval of a habitat conservation plan that allows landowners to receive a permit for an incidental take, while outlining the steps the permit holder will take to avoid, minimize and mitigate the impacts to a species and its habitat.4
    • Safe harbor agreements that provide regulatory assurances for landowners who voluntarily aid in the recovery of a listed species. Landowners who enroll property may return it to an agreed-upon baseline condition for the species at the end of the agreement, even if there is an incidental take.5
    • Candidate conservation agreements, which place emphasis on conserving a species before it becomes listed. The voluntary agreement between landowners and one or more other parties works toward reducing or removing threats to the candidate species and makes funding available for landowners to improve and conserve species habitat.6
    • Candidate conservation agreements with assurances are similar to a candidate conservation agreement. In exchange for conserving a candidate species, the non-federal landowner receives regulatory assurances that if the species is listed, the landowner will not be required to do anything beyond what is specified in the agreement.7
    • Conservation banks, where lands are permanently protected and the habitat is managed as mitigation for loss elsewhere of listed species. It is a free-market enterprise approach based on supply and demand of mitigation credits.8
  • Implementation of the act for the 2013 fiscal year cost $1.7 billion, as reported by federal agencies, and $76 million, as reported by the states.9
  • Forty-six states have some sort of endangered species law on the books aimed primarily at providing a mechanism for listing species and prohibiting the taking or trafficking of a listed species.10
  • States that do not have endangered species laws – Arizona, Utah, West Virginia and Wyoming– rely on the Endangered Species Act and other nongame programs to provide protection for listed species.11

Evolving Perspective
As the list of candidate species grows and land development continues, the increasing tension of maintaining a balance between the two has forced governments, landowners and interest groups to step
back and look for better alternatives for preserving a species. This quest for bettering conditions for a candidate species has forged unique partnerships. A current example of this work is with the candidate
species, the Greater sage-grouse. 

  • The greater sage-grouse, a Western ground-dwelling bird, occupies a widespread sagebrush habitat stretching 165 million miles across 11 Western states. The population has declined 30 percent since 1985.12 
  • The federal government owns 64 percent of the bird’s habitat, 31 percent is privately owned and 5 percent is owned by the state. Wyoming has the largest percentage of habitat at 37 percent, followed by Montana at 18 percent, and Nevada and Idaho, both at 14 percent. Each of the remaining seven Western states have less than 7 percent.13 
  • The habitat also is a prime area for energy development for both carbon-based and renewables. An endangered-species listing would have a large impact on both types of developments.
  • Because the greater sage-grouse is not listed, states still have primary jurisdiction over the bird’s management. This has led to the development of state management plans through a collaborative stakeholder process. In these plans states have been proactive, outlining protections and mitigation requirements into their management plans for development in sage-grouse habitats. 
  • Wyoming, for example, was the first state to create a management plan through a diverse stakeholder planning team. The plan prohibits development in core habitat areas and also sets mitigation requirements.14 Other states have taken a similar approach with the hopes of preventing further habitat fragmentation and reversing population declines.
  • The state management plans are supported with additional actions, like conservation easements. According to the Great Falls Tribune, Wyoming has secured more than 300,000 acres of easements since the state’s plan went into effect in 2003.15 
  • Greater sage-grouse habitat also covers a lot of ranchland. The U.S. Department of Agriculture’s Natural Resource Conservation Service in 2015 released a report detailing that since 2010, 4.4 million acres of habitat have been restored through partnerships with ranchers, other private landowners and partners. The Natural Resource Conservation Service has spent $296 million during the past four years and has committed to another $200 million over the course of the next four years for habitat improvement and conservation.16
  •  Despite these positive steps, uncertainty looms about whether the conservation efforts taken thus far will be enough to keep the bird from being listed under the Endangered Species Act, especially in light of the recent listing of the subspecies Gunnison sage-grouse in Colorado. 
  • The U.S. Fish and Wildlife Service will make a listing determination for the greater sage-grouse by September 2015.

​References:

1 Gov. Hickenlooper, Senators Bennet and Udall and Congressman Tipton issue statements on Gunnison sage grouse listing decision,” Press Release, Nov. 12, 2014. 
2 16 U.S.C. §1532.19 
3 16 U.S.C. §1535(a) 
4 ESA Basics, 40 Years of Conserving Endangered Species,” Fish and Wildlife Service. 
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
9 “Endangered and Threatened Species Expenditures Fiscal Year 2013,” Fish and Wildlife Service. 
10 George, S., Snape W.J (2010). "State Endangered Species Act." In D. Baur, W.R. Irvin (Ed.), Endangered Species Act: law, policy, and perspectives (pp. 344-359). Chicago, IL: ABA Publishing. 
11 Ibid.
12 “The Greater Sage-grouse: facts, figures and discussion,” Fish and Wildlife Service.
13 Ibid.
14 “Greater Sage-Grouse Core Area Protection,” State of Wyoming.
15 “Lawmakers balance keeping energy and the sage grouse alive and well in Montana,” Great Falls Tribune, February 9, 2015. 
16 “Ranchers crucial to saving sage-grouse,” E&E Publishing, Feb. 12, 2015. 

The Endangered Species Act in the States