The State Role in Biodiversity Conservation

The United States today is in the midst of a biodiversity crisis. For a variety of reasons, including habitat loss and degradation and exotic species invasions, fully one-third of our species are at risk, according to the Nature Conservancy’s 1997 Species Report Card. The major federal law aimed at protecting threatened and endangered species, the Endangered Species Act (ESA), has proven inadequate in stemming the tide of species endangerment, despite some well-publicized successes, such as the efforts to recover the bald eagle, the brown pelican, and the peregrine falcon. The federal government could play a major role in biodiversity conservation through the land it owns and manages, the policies it implements, the programs it administers, the research it conducts, and the laws it enforces. But even if the federal government did all it could to preserve biodiversity, its legal, policy, and research tools are not adequate to specifically protect species diversity or to address the primary causes of its degradation.

Some of the best tools for biodiversity conservation are in the hands of the states. This should not be surprising. In many ways the states, where key land use regulations are made and implemented, are uniquely appropriate places for developing comprehensive initiatives for protecting and restoring biodiversity. More than a quarter of the states have recently launched such initiatives. These efforts have produced many plans and some laudable programs, yet they are still just scratching the surface of the problem. States must take more concrete steps to fortify the laws, regulations, and policies that affect biodiversity. Until biodiversity protection is integrated into the fabric of each state’s laws and institutions, habitat for the nation’s plant and animal populations will continue to be lost, fragmented, and degraded.

The ESA’s role

Many citizens look primarily to the U.S. government to confront the biodiversity crisis. Yet, to a significant degree, the federal government does little to protect species from reaching critical status. Take, for example, the ESA, passed in 1973 to provide “a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” The act created a program administered by the U.S. Fish and Wildlife Service (FWS) that identifies at-risk species, lists threatened and endangered species, and then develops and implements recovery plans for those species.

The ESA is considered by many to be the strongest piece of environmental legislation on the books, yet it has proven inadequate in protecting biodiversity. The ESA and its habitat conservation plan provisions are not designed to protect plants, animals, or ecosystems before they begin to decline, but rather only those species that FWS has determined are endangered or threatened with endangerment. As a result, the ESA protects only a fraction of the nation’s imperiled species. Although the Nature Conservancy estimates that more than 6,500 species are at risk, FWS currently provides protection to only 1,154 species. And recovery plans for restoring populations and protecting vital habitat are in place for only 876 of these species.

Scientists have questioned whether the ESA can really rescue species, because species protected under the act are often listed only when their numbers are so low that their chances of recovering genetically vibrant populations are slim. For plant species placed on the endangered list between 1985 and 1991, the median population size was fewer than 120 individuals; 39 of those species were listed when only 10 or fewer individuals existed. Vertebrates and invertebrates were protected only when their median numbers were 1,075 individuals and 999 individuals, respectively. These population sizes are several fold to orders of magnitude below the numbers deemed necessary by scientists to perpetuate the species.

In short, although the ESA is a potentially powerful tool for preventing species extinction once they have been classified as threatened or endangered, it is not adequate for protecting the nation’s biological resources and stopping or even slowing their slide toward endangerment.

The limited scope of federal protection

The federal government can and has played a significant role in protecting, restoring, and studying biodiversity on public as well as private lands. It owns about 30 percent of the nation’s land, which is managed by agencies such as FWS, the Bureau of Land Management, the National Park Service, and the Forest Service, as well as by the Departments of Energy and Defense. But this land does not necessarily coincide with the country’s most biologically rich areas. Indeed, only about 50 percent of ESA-listed species occur at least once on federal lands, and only a fraction of federally owned lands are managed explicitly for conservation. Most of the country’s biologically important lands are on private property.

In recognition of that fact, the federal government administers in partnership with private landowners a number of conservation programs that significantly affect biodiversity on private lands. For example, FWS’s Partners for Fish and Wildlife Program offers technical and financial assistance to private landowners who voluntarily restore wetlands and fish and wildlife habitat on their properties. Since 1987, the program has restored 409,000 acres of wetlands, 333,000 acres of native prairie and grassland, and 2,030 miles of riparian in-stream aquatic habitat. The U.S. Department of Agriculture (USDA) also administers several programs that serve to protect wildlife by way of easements and restoration. The Conservation Reserve Program (CRP) and the Wetlands Reserve Program (WRP) offer landowners financial incentives to enhance farmland in exchange for retiring marginal agricultural land. As of September 1998, more than 665,000 acres of wetlands and their associated uplands on farms were enrolled in WRP and restored to wetland habitat. As of January 1999, more than 30 million acres of highly erodible and environmentally sensitive lands were enrolled in CRP. Of this acreage, 1.3 million acres were restored to wetlands, 1.9 million acres were restored by planting trees, and 1.6 million acres were restored to provide enhanced wildlife habitat.

Federal agencies also contribute significant amounts of data and conduct critical research on the status and trends of biodiversity in the United States. For example, the U.S. Geological Survey’s Biological Resources Division participates in and coordinates an array of research projects, many in partnership with other federal and state agencies. The division participates in programs such as the North American Breeding Bird Survey, the Gap Analysis Program (a geographical information systems-based mapping project that identifies gaps in the protection of biodiversity), the Nonindigenous Aquatic Species Program, and the National Biological Information Infrastructure. FWS’s National Wetlands Inventory and USDA’s Natural Resources Inventory provide valuable data on the status and trends of the nation’s wetlands and other natural resources.

Why the states are important

As valuable as these federal laws and programs are, the key land use decisions in this country that contribute to biodiversity loss are made at the state and local levels. Statewide initiatives to protect biodiversity offer a variety of advantages.

First, although state boundaries do not necessarily coincide with ecosystem boundaries, states are usually large enough planning units to encompass significant portions of ecological regions and watersheds. In addition, the laws, regulations, and policies that most profoundly influence habitat loss, fragmentation, and degradation tend to operate uniformly on a state scale. For example, local planning and zoning laws, which affect development patterns, are structured to meet state enabling acts. Many national environmental laws, such as the Clean Water Act, are implemented through state programs and regulations with their own idiosyncrasies and priorities. Laws addressing utilities siting and regulation, agricultural land preservation, real property taxation and investment, and private forestry management are also developed and administered at the state level.

State agencies, universities, and museums have collected large quantities of biological data, which are often organized and accessible at the state level. Among the most valuable are data collected through the Gap Analysis Program and the Natural Heritage Program. A Natural Heritage Program exists in every state and in the District of Columbia and is usually incorporated into state agencies that manage natural areas or into fish and wildlife agencies. The programs collect and store data on types of land ownership, land use and management, distribution of protected areas, population trends, and habitat requirements. These computer-based resources, along with species data collected and maintained by state natural resource agencies, nonprofit conservation organizations, and research institutions, comprise a large proportion of the available knowledge on the status and trends of the nation’s plants, animals, and ecosystems.

Finally, people identify with their home states and take pride in the states they are from. People also care about what they know, and what they know are the places they experience through hunting, fishing, walking, photographing their surroundings, and answering the countless questions their children ask about the natural world around them. This sense of place provides a basis for energizing political constituencies to make policy decisions, such as voting for bond issues that fund open space acquisition and taking private voluntary actions.

Developing statewide strategies

In reaction to the limitations of existing state and federal mechanisms for conserving the nation’s biological diversity, efforts are under way in at least 14 states-California, Florida, Illinois, Indiana, Kentucky, Minnesota, Missouri, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, and Wisconsin-to develop comprehensive statewide strategies for protecting and restoring biological diversity. A nascent effort is also underway in Delaware. In most cases, state departments of natural resources have initiated these measures. In Ohio, Minnesota, and Wisconsin, the natural resources agencies have engaged in agency-wide planning to guide biodiversity management. The general goal of these strategic planning initiatives is to incorporate biodiversity conservation principles into the activities and policies of each division and to encourage the divisions to cooperate in their conservation and restoration-related activities.

In most states with biodiversity initiatives, natural resources agencies have also looked beyond their ranks by soliciting the input of other agencies, university departments, conservation organizations, and private companies that have a stake in keeping the state’s living resources healthy. In several states, biodiversity initiatives emerged independently of state agency strategic planning. For example, the Oregon Biodiversity Project is a private sector-based collaborative effort staffed by the Defenders of Wildlife, a nonprofit conservation organization. The Indiana Biodiversity Initiative is a broad-based effort that receives coordination and staff support from the Environmental Law Institute.

The objectives that the state efforts have embraced are strikingly similar. The most common goal is to increase coordination and build partnerships for biodiversity conservation and management. Coordination efforts often focus on scientific data-gathering and analysis. In addition, many states are seeking to improve the knowledge base through enhanced inventorying, monitoring, assessment, and analysis of the state’s biological resources. And a large number of the strategies have focused on the need for more education and dissemination of information about biological diversity. Because many of these initiatives are strategic planning efforts spurred by state natural resources agencies, several state strategies also advocate integrating biodiversity conservation into the programs and policies of the agency.

Although increased coordination, data collection, and education (of the public as well as resource professionals) are key to improving the protection and conservation of biological diversity, these state initiatives rarely attempt to analyze and reform the state’s laws, policies, and institutions. Yet these legal and policy issues are critical.

Where the law meets the land

Local governmental decisions can and do have an enormous impact on biological diversity, and there is much that they can do to reduce that impact. For example, local governments can incorporate biological diversity considerations into their comprehensive plans and implement them by developing and enforcing zoning ordinances and subdivision regulations. Local governments can adopt critical area overlays, wetland and floodplain ordinances, agricultural protection zoning, and urban growth boundaries that protect critical habitat and resources and direct growth away from them. They can also adopt performance-based zoning regulations that identify specific standards to be met when development does occur. Local land use commissions can use Natural Heritage Program data when making decisions about the best places for growth. In several states, consultation with Natural Heritage Programs is required. For example, New Jersey’s Coastal Area Facilities Review Act requires that before a builder can obtain a coastal development permit, the New Jersey Natural Heritage Program must be consulted and its data used to determine whether state endangered and threatened species habitat could be damaged.

States can help local governments by passing legislation authorizing localities to employ specific tools such as transferable development rights, which can be used to redirect growth to sites that are less biologically critical. State legislatures can also pass laws enabling local governments to apply real estate transfer taxes to conserve and restore sensitive habitat. In 1969, Maryland established Program Open Space through a bond issue. The program is now funded by a tax of 0.05 percent on the purchase of residential or commercial property. Program Open Space provides more than $50 million annually for state and local land acquisition and conservation programs. The program also awards grants to land trusts to acquire property that complements the state’s acquisition strategy and to the Maryland Agricultural Land Preservation Foundation to purchase development rights on agricultural lands.

Yet another area where states can become more involved is the direct protection of threatened and endangered species. Many states have adopted their own endangered species statutes to complement the federal program. Indeed, the ESA explicitly recognizes the role of states in protecting endangered species. Currently, 45 states have endangered species legislation in place (Alabama, Arkansas, Utah, West Virginia, and Wyoming are the exceptions). State laws include two basic provisions: the listing of threatened and endangered species and prohibitions against taking them. Twelve states also have special listing requirements for species that are possible candidates for listing, often called species of concern.

Species in decline in a specific state often are not targeted for protection under the federal statute if the species has healthy populations nationally. Yet the decline of a species in one area can provide an early warning that human-induced changes are taking their toll. State laws can also target for protection species that are in decline but not yet officially threatened or endangered. Thus, state laws can help stave off species loss that might eventually require a listing under the federal ESA. Of course, simply listing a species is not enough; states must take action to slow the loss and provide remedies for recovery. At this time, 32 states do not have mechanisms in place for developing recovery plans. In addition, state protection of plant species is weak. In fact, few states have even basic listing requirements for plants. In short, states can do much more to prevent species loss.

In addition to their endangered species laws, 14 states have laws modeled on the National Environmental Policy Act of 1970, which requires the federal government to prepare environmental impact statements for “major” federal activities that are deemed to have a significant impact on the human environment. An additional 27 states have passed some environmental impact assessment provisions. Although these laws vary widely in their strength from state to state, they offer many opportunities for states to ensure that their activities do not contribute to environmental degradation and species loss.

Because state agencies maintain a significant amount of information on the status and trends of species and ecosystems, states should require consultation with these agencies before issuing permits or approving projects. For example, before making decisions about state transportation projects, construction projects on state-owned lands, or the issuance of state wetland permits, the state agency overseeing the proposed activity should be required to consult with the state wildlife program and the Natural Heritage Program staff to ensure that imperiled species will not be harmed. In addition, states could require local governments to consult with the Natural Heritage Program staff before finalizing land use zoning ordinances.

Land acquisition is a powerful tool for conserving biodiversity. From 1965 to 1995, the states received more than 37,000 grants from the federal Land and Water Conservation Fund for buying land and related activities. In 1995, Congress stopped appropriating money from this fund for the states. In response, strong support for land acquisition and conservation initiatives has emerged at the state level. At the ballot box in November 1998, 72 percent of 240 state and local conservation measures were approved, generating more than $7.5 billion in state and local money to protect, conserve, and improve open space, parks, farmland, and other lands. In some cases, general obligation bonds are being used; in others, lottery proceeds or real estate transfer taxes. Between 1991 and 1998, 13 of New Jersey’s counties and 98 of its municipalities voted to impose property taxes to raise money for open space acquisition.

Many states are also generating money for open space acquisition by selling environmental license plates. According to a 1997 study by the Indiana Legislative Services Agency, 32 states were offering such plates and four others had legislation pending. More than $324 million has been raised nationwide, with Florida’s program alone generating $32 million. Income tax check-off programs are also providing money for land acquisition. For example, a 1983 Ohio law created two check-off programs that allow taxpayers to donate part or all of their refunds to either an endangered species and wildlife diversity program or a program designed to protect natural areas. The law is generating between $600,000 and $750,000 per year for each program.

State departments of agriculture, natural resources, and transportation can also start to do a better job of tailoring their policies and programs to protect and conserve biological diversity. State incentive programs, public land management policies, and tax programs can be used to not only to avoid, minimize, and mitigate impacts on plants and animals but also to protect and restore species diversity.

For example, highways and other infrastructure projects can be better targeted, monitored, and evaluated to ensure that wetlands and sensitive lands are avoided, protected, and if need be, mitigated through compensatory restoration. State departments of transportation can incorporate habitat considerations into their right-of-way management programs. They can use native plants on highway medians and shoulders, and they can time maintenance to avoid mowing during nesting or migratory seasons. In Ohio, the Department of Transportation has adopted a reduced mowing policy that gives ground-nesting birds sufficient time to raise their young, thereby increasing fledgling success. The state estimates that delayed mowing will increase the numbers of ground-nesting birds by 5 to 10 percent, as well as saving the department $200 for each mile left unmowed. Wisconsin is developing a program that would require native species to be used on highway medians.

The states also can work with the federal government to tailor programs to meet state and local needs. Both federal and state incentive programs and agricultural cost-sharing programs can be targeted more closely at managing lands and waters for biological diversity. The agencies administering these programs can use data from state agencies and sources such as the Natural Heritage Program and state water quality monitoring to help identify sensitive areas that should be given higher priority for restoration and enrollment. State agencies can stipulate the use of native species when cost-sharing funds are used for restoration.

For example, through programs such as the Conservation Reserve Enhancement Program (CREP), states can tailor existing federal programs to target how and where federal dollars will be spent. The Conservation Reserve Program (CRP), a USDA program, offers landowners annual payments for 10 years in return for taking environmentally sensitive cropland out of production and placing it in an easement. Through a provision in the 1996 Farm Bill, states were given the opportunity to piggyback onto CRP by establishing CREPs to target how and where the CRP funds will be spent. To date, six states-Illinois, Maryland, Minnesota, New York, Oregon, and Washington-have had CREP programs approved. States can use CREP to target specific geographic areas, such as the Chesapeake Bay, the New York City watershed, and the Minnesota River, or specific resource types, such as wetlands or streams that provide habitat and spawning grounds for endangered species of salmon and trout. CREPs can give states the flexibility to offer landowners longer easement terms. Maryland and Minnesota have used CREPs to offer landowners permanent easements. Illinois and Minnesota have emphasized the use of native species.

State tax policy can substantially influence land use decisions and the conversion of property to benefit species preservation. For example, states could provide tax incentives to farms that have windbreaks and buffer strips along streams. State tax policy can also encourage practices on private lands that are compatible with conservation. For example, Indiana has a Classified Wildlife Habitat program that is designed to encourage landowners to maintain wildlife habitat and riparian buffers. Under the program, landowners can have property valued for real estate tax purposes at $1 per acre if they enter into a land management plan and follow minimum standards of good wildlife management. In Delaware, landowners who enroll property in a conservation easement may request reappraisal and thereby lower their property and estate taxes. Many states, including Delaware through its Farmland Assessment Act, also allow owners of farmland or forest land to apply for a valuation according to the actual use of the land rather than its most profitable use. These programs could be more closely targeted to preserve species diversity as well as farmland.

Finally, states can take more concerted action to deal with nonnative species, which have caused the decline of more than 40 percent of the plants and animals listed under the ESA. Although the federal government has not provided a comprehensive legal framework for limiting the introduction and spread of exotic species, states could certainly adopt legislation to limit their impact. States can enact and vigorously enforce prohibitions on nonnative species. They can also provide incentives to landowners for eradicating invasive species.

State agencies can also reassess their own policies that often favor nonnative species at the expense of natives. Programs managed by state divisions of soil and water conservation and mine reclamation miss many opportunities to encourage the use of native plants in soil erosion control and restoration projects. State game and fish departments likewise often spend funds to propagate, introduce, and manage nonnative game species. These polices not only divert funding and attention away from programs to conserve and restore native species but often damage native populations that are unable to compete successfully with the introduced species.

In sum, existing state laws and policies can do a better job of protecting and restoring the diversity of plants, animals, and ecosystems on which our future depends. The establishment of more than a dozen state biodiversity initiatives is a sign that diverse interest groups recognize the need to collaborate on conservation issues. By improving existing tools and developing new ones, states can assemble a comprehensive arsenal of laws, regulations, policies, and programs that conserve species diversity actively and effectively. Combined with an educated staff of resource professionals at the federal, state, and local levels who are committed to coordinating their activities and sharing data and mechanisms to foster public participation, states can make significant inroads into the conservation and restoration of the nation’s plants, animals, and ecosystems.