Building a Better State Endangered Species Act: An Integrated Approach Toward Recovery

Date01 March 2010
3-2010 NEWS & ANALYSIS 40 ELR 10299
Building a Better
State Endangered
Species Act: An
Approach Toward
by Jason Totoiu
Jason Totoiu is an attorney with the Everglades Law Center.
  
 
For state endangered species protection laws to achieve
their overarching purpose of species recovery, states
should rethink their approaches to species conservation
and adopt an integrated, recovery-oriented approach
that harnesses their broad authorities as land use plan-
ners, transportation planners, and water managers. e
focal point of this new approach would be multi-species
recovery plans, based on the latest GIS habitat-mapping
tools developed by state wildlife agencies. ese plans
would identify the location, type, and amount of habi-
tat critical for the long-term conservation of listed spe-
cies. State endangered species acts would require that all
major land use, transportation, and water development
projects be consistent with the plans’ objectives. Imple-
menting this approach could benet, not only state and
federally listed species, but also the ecosystems upon
which they depend.
Since 1973, the Endangered Species Act’s (E SA’s)1 core
mission has been “to provide a means whereby the eco-
systems upon which endangered species and threatened
species depend may be conserved.”2 e ESA has sought to
protect roughly 1,300 endangered and threatened plant and
animal species,3 some of which are on the brink of extinc-
tion.4 While the E SA has helped prevent many critically
endangered species from going extinct, and the recent delist-
ing of the bald eagle has been a cause for celebration,5 less
than two dozen species have recovered to the point where
they could be removed from the list.6
is Article explores some of the reasons why the recovery
process has been slow under the ESA and what states ca n
learn from the Act as they continue to develop their own
endangered species protection laws. Almost every state in the
nation has its own endangered species act, protecting both
federally listed and state-listed species.7 Commentators have
emphasized the important role of state endangered species
laws in preventing the further decline of federally listed spe-
cies by providing a rst line of defense and preventing the
need for the ESA to list additional species in the future.8 As
most state acts are not nearly as comprehensive as the ESA,9
and as states such as Florida are currently updating and revis-
ing their endangered species protection laws,10 there is a tre-
mendous opportunity for states to develop more protective
mechanisms to protect imperiled species.11
1. 16 U.S.C. §§1531-1544 (2007), ELR S. §§ESA 2-18.
2. §1531(b).
3. U.S. Fish & Wildlife Service, Species Reports, General Statistics for Endan-
gered Species,
4. For instance, it is estimated that less than 120 Florida panthers remain in the
wild. See U.S F  W S., F P R P viii
(3d rev. 2008).
5. Removing the Bald Eagle in the Lower 48 States From the List of Endangered
and reatened Wildlife, 72 Fed. Reg. 37346 ( July 9, 2007) (codied at 50
C.F.R. pt. 17 (2009)).
6. See Krishna Giord & Deborah Crouse,  
Species Act, E S B. (U.S. Fish & Wildlife Serv., Wash-
ington, D.C.), Spring 2009, at 4, 6 (noting that 13 U.S. species for which the
Service has lead, and seven foreign or National Marine Fisheries Service lead
species have been delisted due to recovery).
7. A discussion of each of these statutes is beyond the scope of this Article, but for
an excellent overview of these laws, see Susan George & William J. Snape III,
E S A: L,
P,  P 503 (Donald C. Bauer & William Robert Irvin
eds., 2002) [hereinafter L, P,  P].
8. See id.; see also D  W, S E S A:
P, P  F ().
9. See George & Snape, supra note 7, at 505. California has the most comprehen-
sive act, as it contains almost all the elements found in the ESA.
10. See Florida Fish and Wildlife Conservation Commission,  
  (July 9, 2009), available at http://www. eriled_DraftRuleChanges Forreat-
enedWildlife.pdf; Interview with Tim Breault, Dir., Div. of Habitat & Species
Conservation, Fla. Fish & Wildlife Conservation Comm’n (June 12, 2009)
(on le with author).
11. See Panel, -
gered Species Act, 31 W.  M E. L  P’ R. 747, 782-83 (2007)
[hereinafter William & Mary Panel] (comments by John Kostyack discussing
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.
is Article agrees with the argument made by several
commentators that states should develop endangered spe-
cies laws containing all t he mechanisms found in the ESA.12
e framework is a good one, and states should not attempt
to reinvent the wheel.13 For these state laws to achieve their
overarching purpose of species recovery, however, this Article
contends that t he ma nner in which these provisions oper-
ate and their relationship to other state environmental and
land use laws must be reexamined. is Article proposes that
states should redene the concepts of “consultation,” “critical
habitat designation,” “habitat conservation plans,” “citizen
suits,” and “recovery planning” and utilize the states’ broad
authorities as land use planners, transportation planners,
and water managers to provide a forward-looking, recovery-
oriented approach to endangered species conservation that is
otherwise absent from the ESA and state statutes currently
in place.
Using Florida as an example, the Article calls for the
establishment of an interagency consultation process that
integrates endangered species protection into state envi-
ronmental, land use, and transportation laws. Recognizing
that habitat loss is the greatest threat facing endangered spe-
cies, the approach would require the biggest contributors to
habitat loss-large development projects, st ate transportation
projects, and large wetland ll projects to be consistent with
multi-species recovery plans before receiving state approval.
ese recovery plans would be the focal point of the state
act and would be quite d ierent from those currently devel-
oped under the ESA or state endangered species acts. ese
plans would be based on geographic information system
(GIS) habitat-mapping tools, developed by many state wild-
life agencies over the past decade, to identify the location,
type, and amount of habitat that would be required to recover
listed species. Using this information, the plans would iden-
tify those areas that are critical to t he long-term survival of
endangered a nd threatened species and would require land
use, transportation, and water development projects to avoid
or minimize their impacts to these critical areas. Once these
plans are developed, all critical habitat, incidental take per-
mitting, and habitat conservation planning decisions would
be made, based on the specic species and habitat needs set
forth in these recovery plans.
is new approach would focus on the recovery of state-
listed species, many of which are keystone or indicator spe-
cies and not yet listed under the ESA (such as the gopher
tortoise and Florida black bear) but face future listing under
the ESA if populations continue to decline. Yet, the benets
would likely extend beyond state-listed species and a ssist in
the recovery of federally listed species that often share the
same habitat needs. Further, by focusing on indicator and
keystone species, these plans would protect not just individ-
ual species but larger ecosystems.
the need for states to become more involved in the recovery of endangered spe-
cies and how state wildlife agencies could assist in that eort).
12. D  W, supra note 8.
13. See id.
Part I begins with a discussion of the status of endangered
and threatened species nationwide and in Florida. Part II
follows with a discussion of the ESA, and major state envi-
ronmental laws including state endangered species acts, trans-
portation planning laws, and wetland permitting programs,
with particular focus on Florida’s laws. Part III discusses how
states can learn from certain limitations in the E SA to con-
struct stronger, more eective endangered species protection
laws. Part IV oers a new approach to state endangered spe-
cies laws that is centered around scientically defensible and
enforceable recovery plans and a consultation process that
incorporates stronger endangered species protections into
state growth management, transportation planning, and
water development laws. Part V discusses some of the oppor-
tunities and benets of adopting the proposed approach. Part
VI explains what steps states must take to adopt the proposed
approach and discusses some of the challenges in adopting a
more comprehensive, integrated approach to protecting state-
listed species, including private-property concerns.
I. Endangered Species: The Current State
of Affairs
Scientists estimate that the planet may be losing as many as
10,000 species each year.14 Although extinction is a naturally
occurring phenomenon, humans have accelerated the natural
extinction rate by thousa nds.15 Habitat loss and degradation
is the principal cause.16
e ESA is our nation’s most comprehensive law to address
the extinction problem. ere are more than 1,300 endan-
gered plants and animals in the United States that are listed
under the Act.17 Of these, approximately 600 are mammals,
and 700 a re plant species.18 Fifty-four additional species are
currently proposed for listing,19 and 252 more are “candi-
date species.”20 Since the ESA’s enactment in 1973, less than
two dozen species have been recovered, and hundreds have
sadly gone extinct while awaiting federal listing.21 While
some commentators have noted that the low proportion of
recovered species to those that remain listed must be consid-
ered in light of the Act’s relatively short 35 years of existence
and the even shorter time many of these species have been
14. See Union of Concerned Scientists, e SSI and Environment Series: Human
Population and the Future of Biodiversity,
versity/population-and-environment-series/population-biodiversity.html (last
visited Jan. 11, 2010).
15. Patrick Parenteau, 
 22 W.  M E. L.  P’ R. 227, 231
16. Id.
17. U.S. Fish & Wildlife Service, supra note 3.
18. Id.
19. Id.
20. Id. A “candidate species” is a species “for which the [U.S. Fish & Wildlife
Service] has sucient information on le relative to status and threats to sup-
port issuance of a proposed listing rule.” Announcement of Draft Policy for
Candidate Conservation Agreements, 62 Fed. Reg. 32183, 32186 (June 12,
1997). See also 16 U.S.C. §1533(b)(3)(C)(iii) (2007).
21. See Ray Vaughan,     
46 A. L. R. 569, 578-79 & nn.61-62 (1995).
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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