Federal Protections for Native Plant Landscaping

Last Updated: January 2025 | Reading Time: 8 minutes

The Migratory Bird Treaty Act (MBTA)

The Migratory Bird Treaty Act of 1918 is one of the most powerful tools available to native plant advocates. It prohibits the taking, killing, or harming of migratory birds or their active nests and eggs. Because native plants provide essential habitat and food sources for migratory birds, restricting native plants can constitute indirect harm to protected species.

How to use this in your HOA dispute: If your native garden — particularly milkweed, native berry shrubs, or seed-producing wildflowers — provides habitat or food for migratory birds, removing it at HOA demand could be characterized as contributing to harm of protected species. While no HOA has been prosecuted under the MBTA, the argument creates meaningful legal complexity for boards.

The Endangered Species Act (ESA)

The Endangered Species Act protects listed plant and animal species and their habitats. If any plant in your garden is listed as threatened or endangered, the HOA faces significant legal risk in demanding its removal. The ESA also protects habitat that listed species depend on, even if the listed species is not currently present on your property.

How to use this: Check whether any plants in your garden, or wildlife that uses your garden, appear on the federal or your state's endangered species list. If so, document this in writing to your HOA board.

The Clean Water Act

The Clean Water Act regulates pollution of waters of the United States, including runoff from residential properties. Native plants significantly reduce fertilizer and pesticide runoff compared to conventional lawns, which require chemical maintenance. HOA rules requiring turf grass that necessitates chemical treatment can be framed as inconsistent with Clean Water Act goals.

Additionally, properties near streams, wetlands, or other protected water bodies may be subject to buffer requirements that mandate native or natural vegetation.

Executive Order 13112 — Invasive Species

Executive Order 13112 and its successor EO 13751 establish federal policy against the introduction and spread of invasive species. Planting native species is explicitly aligned with this federal policy — native plants are by definition not invasive species. This can be cited to counter any HOA argument that your native garden poses a spread risk.

National Pollinator Health Strategy

The federal National Pollinator Health Strategy, established under the Obama administration and continued by subsequent administrations, calls for expanding pollinator habitat on both public and private lands. Native plant gardens are the primary mechanism for private-land pollinator habitat. Citing this federal strategy positions your garden within a national conservation goal.

How to Use Federal Protections in Practice

1. Identify protected species — Use the US Fish & Wildlife Service ECOS database to check for listed species in your county
2. Document wildlife use of your garden — Photos and notes of birds, butterflies, and bees using your plants create a record of habitat value
3. Cite federal programs in writing to your HOA — Reference the MBTA, ESA, and National Pollinator Health Strategy in your variance request or dispute letters
4. Consult an attorney if removal is demanded — Removing habitat for listed or protected species at HOA insistence creates legal liability worth discussing with counsel

Limitations of Federal Protections

Federal protections are powerful arguments but not absolute shields against HOA enforcement. No court has definitively ruled that the MBTA prevents HOAs from requiring removal of native plants. These arguments create legal complexity and risk for HOA boards, which is often enough to resolve disputes — but they are not guaranteed protections. For specific legal advice, consult a qualified attorney.