A Guide For North Carolina Property Owners

Why Protect Endangered Species?

Brown pelicans, bald eagles, American alligators - seeing these animals in the wild is often the highlight of a trip to the beach or lake. Yet these magnificent creatures would likely be extinct in the wild were it not for the Endangered Species Act (the Act). Each of these species was in serious decline at the time of the Act's passage in 1973. Now, thanks to the legal protection afforded by the Act and the heightened public awareness of their plight, these creatures are well on the road to recovery. In fact, the brown pelican and American alligator have been removed from the endangered list, and the bald eagle has been reclassified from endangered to the less serious status of threatened.

Along with these familiar species, there are thousands of lesser known plants, animals, insects, and other organisms that make up the intricate web of life. Their humble appearance or lack of visibility does not make them less important in the greater scheme of nature. Some animals, such at bats and songbirds, benefit humans directly by consuming large numbers of mosquitoes and insects harmful to trees and crops. All are part of a food chain that supports other species.

Diverse plant species are the source of 25 percent all prescription drugs used today. The Pacific yew tree, for example, one considered a "trash tree" yields a compound known as taxol that is highly successful in treating ovarian and breast cancers. In North Carolina, ginseng generates $2.25 million annually in sales to pharmaceutical companies. In short, the greater diversity of plants and animals, the better chance our own species has of surviving over the long term.

As many as 1 in 20 of the animal and plant species native to North Carolina, and 1 in 5 of the world's species, may be facing extinction due largely to the elimination of natural habitats, deterioration of air and water quality, and changing global climate. It may be that we can lose certain species without threatening the ecosystem, but who is wise enough to choose which ones? Before penicillin was discovered and saved millions of human lives, how many of us would have cared to save the species of mold it came from?

If an endangered species resides on your property, you have a unique power and obligation. Based on your stewardship, the local population of the species may thrive or disappear. Collectively, private landowners can decide the fate of an entire species. Many of the species currently listed as endangered are found on private property, and if there is hope of saving them from extinction, the cooperation of the landowners is critical. The presence of an endangered species offers you an opportunity to play a vital role in preserving the balance of nature and a healthy environment. The Endangered Species Act is a tool that can help you accomplish this.

Federal Endangered Species Act

The Federal Endangered Species Act became law in 1973 and has been amended several times since. The Act is administered by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). Before taking an action that may affect an endangered or threatened species, contact one of these agencies for any changes in the law that may have occurred.

Two categories of plants and animals are protected under the Act : endangered species are those currently in danger of extinction throughout a significant portion of their range; threatened species are those likely to become endangered in the foreseeable future. The Act gives USFWS the authority to list species as threatened or endangered. Listing is a complex process requiring extensive review by government agencies, scientists and the public. As of 1996, there were 960 species of plants and animals on the federal endangered and threatened species list in the U.S. and another 420 under consideration for possible inclusion. Sixty-eight of the listed species are found in North Carolina.

Under most circumstances, both endangered and threatened species are treated equally under the law in terms of protection and penalties.

For animals listed as endangered or threatened, it is illegal to:

engage in interstate or foreign commerce without a permit;
take (i.e., harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect) any listed species;
possess an illegally-taken endangered or threatened species

For plants listed as endangered or threatened, it is illegal to:

engage in interstate or foreign commerce without a permit;
collect, maliciously damage or destroy any such species on federal lands;
collect or damage such species on private lands in knowing violation of any state law (including trespass).

The maximum penalty for violating the Act is a fine of not more than $50,000 and/or one year in prison. While USFWS enforces the law when necessary, it is committed primarily to protecting endangered species through education and cooperative action. To date, there have been relatively few large fines levied under the Act.

Rights of Property Owners Under Federal Law

Under the federal Endangered Species Act, it is illegal for anyone to take a listed species of animal no matter where it occurs within the United States. (Plants on private lands are only protected from disturbance by federally funded or permitted projects).

The Act also prohibits anyone from harming a listed species. Courts have interpreted the word "harm" to include habitat modification or degradation that kills or injures a listed species by impairing essential behavior patterns such as breeding, feeding, or finding shelter. A simple illustration of this would be cutting down a tree in which an endangered bird is nesting.

But what if you want to pursue an otherwise legal activity, such as harvesting timber or developing land, that might indirectly harm a listed species? How are you to know what would violate the Endangered Species Act? The first step is to contact the nearest USFWS office and explain your situation. The staff will advise you on what activities may or may not constitute "harm" of a listed species.

If USFWS determines that the activity you want to pursue could harm a listed species, various options will be recommended to minimize impacts on the species. The Act offers several flexible tools that promote the conservation of rare species while accommodating the land use plans of the private owner. In practice, relatively few activities landowners have wanted to pursue have ever been banned outright by USFWS under the federal Endangered Species Act.

Incidental Take Permits, Habitat Conservation Plans, and Safe Harbor

Two provisions in the Act allow development and other activities to proceed as long as steps are taken to ensure the long-term protection of a listed species.

Section 10 - Incidental Take Permits

Section 10 of the Act authorizes USFWS to permit the taking of federally listed species if such taking is "incidental to, and not the purpose of, carrying out otherwise lawful activities" and if an acceptable Habitat Conservation Plan has been submitted. In other words, if you receive a Section 10 permit, you may engage without penalty in activities such as logging or land development that result in the incidental taking of a listed species.

Habitat Conservation Plans

To obtain an incidental take permit, you must prepare or be part of a Habitat Conservation Plan approved by USFWS. A Habitat Conservation Plan (HCP) is a management plan developed by the permit applicant for one or more endangered species and their habitats within a certain geographical area. The HCP must ensure that your taking of an endangered species will not appreciably reduce the likelihood of that species' survival and recovery in the wild.

Typically, USFWS wants the HCP to encompass the entire range of a local population of a listed species. This range may include numerous tracts of property. In such cases, a single plan may be prepared in cooperation with all concerned property owners, as well as the appropriate local governments and state and federal agencies.

The Act's main goal is to help endangered populations expand to the point that they no longer need legal protection. One of the best ways to do this is to encourage landowners to manage the habitat around an endangered population in such a way as to promote its expansion. Understandably, some property owners are reluctant to do this for fear that their uses of the land will be restricted.

Safe Harbor

To resolve this dilemma, the USFWS, the Environmental Defense Fund and others developed the Safe Harbor concept for selected species. Under Safe Harbor you may enter into a cooperative agreement with the USFWS to maintain or create new habitat for one or more of the selected species, but may not be obligated to protect any of those species that subsequently move onto the property.

As long as you carry out the agreed upon habitat improvements, you may later develop the property or undertake any other lawful activity without penalty even if such use incidentally results in the loss of those additional species that may move onto your property. Beyond habitat improvement, the only requirement of Safe Harbor is that you notify USFWS in advance of taking any potentially harmful actions to give it an opportunity to relocate the endangered species. If you already had the particular species on your property prior to the Safe Harbor agreement, your only obligation is to protect the original population of animals, not new individuals that move in.

In the Sandhills region of North Carolina, for example, owners of more than 30,000 acres have signed voluntary Safe Harbor agreements with the USFWS pledging to maintain or create habitat that could attract the federally endangered red-cockaded woodpecker. These landowners have been able to conduct a wide variety of activities on their land, including thinning trees, harvesting pine straw, golfing, and a limited amount of residential and commercial development. Endangered wildlife benefits because the goal of the HCP/Safe Harbor combination is to generate a new increase in both wildlife numbers and high quality habitat, even if some of the new habitat is eventually eliminated.

Federal Assistance Available

Over two-thirds of our nation's land is privately owned and contains some of the most important fish and wildlife habitat in the United States. The USFWS, through it Partners for Wildlife program, may offer technical and limited financial assistance to landowners who wish to restore, conserve or protect a portion of their property for the benefit of fish and wildlife populations. Activities covered through this program include restoring wetlands and riparian areas, enhancing upland areas to provide food and cover for rare species, delaying hay harvest to provide habitat for waterfowl and other wildlife during nesting and migration, and managing grazing to improve vegetation.

If your proposed project meets certain criteria, the USFWS may share or pay all costs up to $10,000 per fiscal year for a site under single ownership. In addition to cost-share payments, the Partners for Wildlife program offers on-the-ground technical assistance that may include the design of habitat management of enhancement projects and advice on a variety of habitat restoration and wildlife management issues. Examples of Partners for Wildlife programs in North Carolina include:

restoration of stream banks and riparian corridors on private lands along the Little Tennessee River and Swift Creek to benefit several federally listed aquatic species;
restoration of mountain bogs, including fencing out cattle during certain times of the year to improve habitat for the bog turtle and several species of rare orchids, lilies and carnivorous plants;
restoration and enhancement of longleaf pine habitat for the red-cockaded woodpecker on private lands in the Sandhills region;
erosion protection for a wading bird nesting island;
creation of an outdoor environmental laboratory, which will protect bottomland hardwood wetlands, migratory birds and several federally listed aquatic species along Fox Creek and the Tar River.

North Carolina Endangered Species Laws

North Carolina has its own protection for endangered and threatened species that are embodied in separate sets of laws, one for animals and one for plants. These laws cover species that are locally or regionally rare in North Carolina in addition to the federally listed endangered and threatened species that are found here.

Since 1987, animals have been covered in North Carolina General Statutes 113-331 and through 113-337 (commonly known as the NC Endangered Species Act). The North Carolina Wildlife Resources Commission (WRC) administers this law and maintains the state's list of protected animal species. Under this law, it is illegal to take, possess, transport, sell, barter, trade or export any animal on the protected list without a permit.

The NC Endangered Species Act does not prohibit habitat modification, although another state law , G.S. 113-291.1, does make it illegal to intentionally destroy or substantially damage wildlife nesting or breeding areas. These prohibitions include cutting down den trees, shooting into nests of wild animals or birds, and raiding dens, nests, or rookeries. Penalties under G.S. 113-291.1 are fines of not less than $100 for a first conviction, and not less than $500 for any subsequent conviction.

Endangered, threatened and rare plants are covered by the North Carolina Plant Protection and Conservation Act (General Statutes Chapter 106, Article 19B; 202.12-202.22). The law is administered by the Plant Conservation Program in the North Carolina Department of Agriculture. The list of endangered, threatened and rare plants is tracked by the NC Natural Heritage Program.

As with animals, this law prohibits the sale, barter, trade, exchange or export of any plant on the state's protected list without a permit. You may, however, conduct agricultural, forestry or development operations on your own property, even though those actions may incidentally disturb rare plants, "so long as the plants are not collected for sale of commercial use" without a permit. Persons taking listed plant species off someone else's land without the landowner's written permission and a state permit are subject to prosecution under state criminal trespass law. The penalties for any violation of the Plant Protection and Conservation Act are $100 for a first conviction and not less than $500 for any subsequent conviction.

Incentives For Conservation

As a landowner, you may be able to benefit from substantial income and estate tax reductions by permanently protecting property that provides habitat for endangered, threatened or rare species. Donations of land or permanent conservation easements (restrictive covenants that assure limited development) to a public agency or private nonprofit land trust can earn tax benefits for landowners, including federal income tax deductions, state income tax credits, lower federal and state inheritance taxes, and potential reductions in property tax assessments.

For more information about options and tax-reducing incentives for conservation of natural lands, contact a local land trust, The Nature Conservancy, or the Conservation Trust for North Carolina.

Sources Of Information And Assistance

For information on:

The Federal Endangered Species Act, including lists of endangered species, habitat conservation planning, Safe Harbor, Partners for Wildlife and other recovery programs:
U.S. Fish and Wildlife Service
160 Zillicoa St., Asheville, NC 28801
(704) 856-3939
or
U.S. Fish and Wildlife Service
P.O. Box 33726, Raleigh, NC 27636-3726
(919) 856-4520

Protection programs specifically related to the red-cockaded woodpecker:
U.S. Fish and Wildlife Service
225 N. Bennett St., Ashville, NC 28388
(910) 965-3323

Enforcement of the Federal Endangered Species Act:
U.S. Fish and Wildlife Service
160 Zillicoa St., Asheville, NC 28801
(704) 856-3939
or
U.S. Fish and Wildlife Service
P.O. Box 33096, Raleigh, NC 27636
(919) 856-4786

Applying for Section 10(a), incidental take permits:
U.S. Fish and Wildlife Service
1875 Century Blvd., Suite 200, Atlanta, GA 30345
(404) 679-7313

North Carolina Endangered Species Act or other state laws pertaining to wildlife (birds, fish, animals):
N.C. Wildlife Resources Commission
512 N. Salisbury St., Raleigh, NC 27604-1188
(919)733-7291

NC Plant Protection and Conservation Act and other state laws pertaining to rare or endangered plants:
Plant Conservation Program
N.C. Department of Agriculture
P.O. Box 27647. Raleigh, NC 27611
(919)733-3610

Lists of endangered, threatened and other rare plants and animals in North Carolina:
NC Natural Heritage Program
DEHNR-Division of Parks and Recreation
P.O. Box 27687, Raleigh, NC 27611
(919) 733-4181

Conservation easements, land donations, and tax-reducing incentives for land conservation:
Conservation Trust for North Carolina
P.O. Box 33333, Raleigh, NC 37636
(919) 828-4199
or
The Nature Conservancy, North Carolina Chapter
4011 University Dr., Ste. 201, Durham, NC 27707
(919) 403-8558

This pamphlet was prepared by the Conservation Trust foe North Carolina through grant agreements with the N.C. Wildlife Resources Commission, Nongame and Endangered Wildlife Program, and the U.S. Fish and Wildlife Service, Asheville Field Office.

The Conservation Trust for North Carolina is a private, nonprofit organization whose purpose is to help North Carolina landowners, communities, private land trusts, and public agencies conserve and protect important natural habitats and rural land resources.