As the United States faces urgent needs to build energy infrastructure, modernize transportation systems, and address the housing crisis, outdated environmental regulations are increasingly becoming obstacles to progress. Yet while the concept of permitting reform is growing in popularity, Congress’s divisions make the opportunities for passing difficult legislation few and far between. As a result, over the next decade, much of the opportunity for reform will be at the state level, where there is much less gridlock.
One significant opportunity for reform is in State Endangered Species Acts (SESAs). SESAs are generally modeled off of the 1973 Endangered Species Act (ESA)— a federal law which establishes endangered species lists, prohibits the killing or harming of those species, and puts in place requirements for consultation with federal agencies for projects that may affect species or their habitat. In practice, however, SESAs and their implementations vary dramatically. 47 states and Puerto Rico have SESAs or some equivalent. Most states keep a list of state endangered or threatened species that are not listed under the federal ESA, and attach penalties for the taking or killing of those species. A few states require months-long consultation processes with state agencies, while others allow for the designation of critical habitats or acquisition of land. Almost uniformly, though, SESAs create inefficiencies that hamper development and create mazes of red tape for developers and state agencies.
Just as no two SESAs are exactly alike, there is no one-size-fits-all reform for SESAs; state legislatures are equipped to determine the level of protection and involvement that suits the particularities of their state. However, there are a few general actions that state legislatures can take to maintain species protections while reducing the regulatory burden.
First, states should focus their efforts on protecting species that are at risk of becoming federally listed. When a species is listed under the federal ESA, the state loses control over the management of that species, which in turn means less local control over land use. Targeted state protections for at-risk species, then, represent both an economic and environmental imperative.
At the same time, many states list species that are not at risk of becoming federally listed. This means that these states’ SESA rules—from prohibitions on take to broader consultation requirements—are creating unnecessary barriers for developers. Though states may have their own reasons for listing additional species, they should consider how to balance those species’ protection with development.
A good example comes from Utah, which utilizes Conservation Agreements and Programmatic Conservation Benefit Agreements with the federal government to preclude listing of endangered species at the national level. Utah's Division of Wildlife Resources takes targeted steps to manage wildlife, rather than employing the broad, blunt tool approach seen in other states’ endangered species legislation.
In contrast, Nebraska maintains one of the most rigorous ESA programs in the country. Nebraska lists endangered species at the state level, requires environmental consultation with the state Game and Parks Commission, and allows for critical habitat designation. All together, these regulations create an arduous procedural regime: consultation takes an average of five months to complete, and has slowed down everything from highway construction to energy infrastructure. In contrast to Utah, Nebraska exemplifies the ways in which SESA regulations can spin out of control, and demonstrates why state-level reforms are so important.
States should adopt Safe Harbor Agreement systems. Reflecting a federal policy, these agreements would allow state-level regulators and private landowners to come to voluntary, mutual agreements about how the landowner can administer their property without running afoul of SESA regulations. This tool would make it easier for state regulators to protect endangered species, 80 percent of which live on private lands, while providing assurance to landowners who frequently feel that they cannot fully use their property without unknowingly violating SESA provisions.
Similarly, states should consider adopting an Incidental Take Permitting (ITP) system. Though ITPs are a crucial part of the federal ESA, fewer than 10 states have adopted an equivalent. An Incidental Take Permit allows the taking of an endangered species in the course of legal action, such as infrastructure development, if the permitting agency believes the take to be incidental to the behavior at hand. Without an ITP mechanism, states uniformly and inflexibly block the take of endangered and threatened species. By adopting ITP mechanisms, states are equipped with a wider range of tools to protect wildlife while accounting for additional needs.
Just as the federal government doesn’t have to choose between development and environmental protection, neither do states. By increasing financial responsibility, adopting Safe Harbor Agreements, and utilizing Incidental Take Permitting, states can more effectively protect endangered species while decreasing their regulatory burden. The U.S. must build again—and modernizing state-level environmental regulations is a vital first step.
