Recently, a builders association petitioned New Jersey Department of Environmental Protection to remove the northern pine snake from the threatened species list under NJ Threatened and Non-game Species Conservation Act. Hopefully, in the future, I will look at the actual merits of the petition, but I wanted to take this chance to explain NJ’s endangered species act equivalent.
NJ enacted the Endangered and Non-game Species Conservation Act (ENSCA) in 1972 prior to the Federal Government’s enactment of the Endangered Species Act. Some people say that the Federal government modeled their act after New Jerseys. NJ’s ENSCA act can be found at NJSA 23:2A-1. The State in enacted the law set forth the policy of the law:
a. That it is the policy of this State to manage all forms of wildlife to insure their continued participation in the ecosystem.
b. That species or subspecies of wildlife indigenous to the State which may be found to be endangered should be accorded special protection in order to maintain and to the extent possible enhance their numbers; and
c. That the State should assist in the protection of species or subspecies of wildlife which are deemed to be endangered elsewhere by regulating the taking, possession, transportation, exportation, processing, sale or offer for sale or shipment within this State of species or subspecies of wildlife including those on any Federal endangered species list.
The Act defines threatened as “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.” The ENSCA makes it unlawful to take, possess, transport, export, process, sell or offer for sale and species listed as endangered under NJ or Federal law or any nongame species regulated under this act. It is therefore illegal for someone to “take” an endangered or threatened species.
The Act similar to the Federal ESA broadly defines “take.” Under NJ’s act “take is defined as “to harass, hunt, capture, kill, or attempt to harass, hunt, capture, or kill wildlife.” Under this broad definition the destruction of habitat could be considered as a take.
A violation of the act can result in civil and criminal actions against the offender. There are also monetary penalties and injunction power available to the State to punishing offending behavior.
The presence of endangered or threatened species can also impact the implementation of several other laws. For example, the existence of or probable existence of T&E species or habitat can influence whether a stream is classified as category 1 or not. If a waterway is a category one, it is subject to stricter requirements for pollution discharges, and 300 foot buffers. In fact the freshwater wetlands regulations prohibit the issuance of a permit if the Dept. finds that it will jeopardize the survival of T&E species under the State or Federal lists. N.J.S.A. 13:9B-9
Another example is that the Pinelands Commission Regulations provide that:
[n]o development shall be carried out unless it is designed to avoid irreversible adverse impacts on habitats that are critical to the survival of any local populations of those threatened or endangered animal species designated by the Department of Environmental Protection [DEP] pursuant to NJSA 23:2A-1 et seq.
The above examples give you the sense of the power that NJ’s ENSCA can have if implemented properly. It can provide buffers along streams to provide necessary habitat and reduces impacts to the streams. The less pollution and larger buffers not only assist in the survival of the species but can have added indirect benefits to us as well. These benefits can range from the obvious less toxins in our water, to more land around streams to prevent flooding and recharge of aquifers. So protecting T&E species can also mean protecting ourselves.
