MARCH 2015

THE COUNCIL OF STATE GOVERNMENTS

CAPITOL RESEARCH
ENERGY & ENVIRONMENT POLICY

The Endangered Species Act in the States
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 conser-

2

THE COUNCIL OF STATE GOVERNMENTS

vation 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

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

• 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

• 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 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.

• The U.S. Fish and Wildlife Service will make a
listing determination for the greater sage-grouse
by September 2015.

• 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
Rebekah Fitzgerald, Program Manager for Energy & Environmental Policy, rfitzgerald@csg.org
REFERENCES
“Gov. Hickenlooper, Senators Bennet and Udall and Congressman Tipton issue statements on Gunnison sage grouse listing decision,” Press Release, Nov. 12, 2014.
http://www.colorado.gov/cs/Satellite?c=Page&childpagename=GovHickenlooper%2FCBONLayout&cid=1251658153409&pagename=CBONWrapper
2
16 U.S.C. §1532.19. https://www.law.cornell.edu/uscode/text/16/1532
3
16 U.S.C. §1535(a). https://www.law.cornell.edu/uscode/text/16/1535
4
“ESA Basics, 40 Years of Conserving Endangered Species,” Fish and Wildlife Service. http://www.fws.gov/endangered/esa-library/pdf/ESA_basics.pdf
5
Ibid.
6
Ibid.
7
Ibid.
8
Ibid.
9
“Endangered and Threatened Species Expenditures Fiscal Year 2013,” Fish and Wildlife Service. http://www.fws.gov/endangered/esa-library/pdf/2013.EXP.FINAL.pdf
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.
http://www.fws.gov/greatersagegrouse/factsheets/GreaterSageGrouseCanon_FINAL.pdf
11
Ibid.
12
“The Greater Sage-grouse: facts, figures and discussion,” Fish and Wildlife Service. http://www.fws.gov/greatersagegrouse/factsheets/GreaterSageGrouseCanon_FINAL.pdf
13
Ibid.
14
“Greater Sage-Grouse Core Area Protection,” State of Wyoming. http://will.state.wy.us/sis/wydocs/execorders/EO2011-05.pdf
15
“Lawmakers balance keeping energy and the sage grouse alive and well in Montana,” Great Falls Tribune, February 9, 2015.
http://www.greatfallstribune.com/story/news/local/2015/02/09/lawmakers-balance-keeping-energy-sage-grouse-alive-montana/23131615/
16
“Ranchers crucial to saving sage-grouse,” E&E Publishing, Feb. 12, 2015. http://www.eenews.net/stories/1060013384
1

THE COUNCIL OF STATE GOVERNMENTS

3

CURRENT NUMBER OF SPECIES LISTED ON THE ENDANGERED SPECIES LIST
State

Animals

Plants

Alabama

107

22

Alaska

16

1

Arizona

44

21

Arkansas

30

5

California

128

187

Colorado

20

16

Connecticut

12

3

Delaware

12

5

District of Columbia

1

0

Florida

70

59

Georgia

42

26

Hawaii

67

367

Idaho

12

4

Illinois

20

9

Indiana

18

6

Iowa

12

5

Kansas

15

2

Kentucky

35

10

Louisiana

23

3

Maine

12

3

Maryland

18

6

Massachusetts

18

3

Michigan

16

8

Minnesota

14

4

Mississippi

42

4

Missouri

28

10

Montana

12

3

THE COUNCIL OF STATE GOVERNMENTS

Nebraska

11

4

Nevada

31

10

New Hampshire

8

3

New Jersey

15

6

New Mexico

42

13

New York

19

8

North Carolina

38

27

North Dakota

8

1

Ohio

18

6

Oklahoma

21

3

Oregon

43

19

Pennsylvania

12

2

Rhode Island

11

2

South Carolina

21

21

South Dakota

12

2

Tennessee

72

21

Texas

69

31

Utah

18

25

Vermont

2

2

Virginia

57

18

Washington

39

11

West Virginia

17

6

Wisconsin

13

7

Wyoming

7

4

Source: U.S. Fish and Wildlife Service, Environmental Conservation Online System.
“Listed species believed to or known to occur in each State.” http://ecos.fws.gov/
tess_public/reports/species-listed-by-state-totals-report