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March 8, 2016: The U.S. Congress has not reauthorized the Endangered Species Act since 1992. Despite many attempts to both amend and reauthorize the Act, a 1997 bi-partisan bill introduced by Idaho’s then-Senator Dirk Kempthorne came the closest.[1]

This year the center of gravity for examining the Endangered Species Act (“ESA” or “Act”) has shifted to western governors – those who have the day-to-day experience managing difficult species issues. The Western Governors’ Association (“WGA”) is undertaking a review of the ESA, and is currently in the process of exploring ways and best practices to “elevate the role of states in species conservation efforts.”[2]

Past efforts to reform the ESA typically have not moved past the aspirations. In the midst of the Governors’ effort, however, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”)[3] recently updated their policy for cooperating with states under the ESA.[4]This updated policy presents WGA and other involved stakeholders an opportunity to move the ESA toward a more cooperative partnership between federal and state actors. Realizing that opportunity will largely depend on the Services’ willingness to facilitate cooperative agreements with the States. Greater involvement by States could facilitate a more cooperative and innovative approach to ESA implementation.

The ESA Initiative

WGA represents the Governors of 19 Western states and 3 U.S.-flag islands. The WGA encourages “bipartisan policy development, information exchange and collective action on issues of critical importance to the Western United States.”[5] Each year the incoming Chairman of WGA may select a Chairman’s Initiative that analyzes a particular issue of western significance.[6] Following the multi-stakeholder effort to prevent the ESA listing of the Greater sage-grouse, Wyoming Governor Matt Mead selected the ESA as his topic of focus.

In announcing the initiative, Governor Mead outlined his aim to “change the conversation” and “take a hard look at the ESA” to see where it has been successful and where changes are needed.[7] Through a series of four workshops across the West,[8]participants have and will continue to “share best practices and engage in a robust conversation regarding species conservation efforts, and explore ways to improve the efficacy of the Endangered Species Act.”[9]WGA has also hosted three webinars covering similar ESA topics.[10] At a minimum, WGA has already provided a great repository of information for those interested in the ESA.[11]

The ESA workshops to this point have been held in in Cody, Wyo. and Boise, Idaho. In a Boise Roundtable discussion, one panelist stated the ESA should be viewed as a “motivator,” and not a panacea for resolving these difficult issues.[12] Despite noting examples where the Act has been and is deficient, both Governors Mead and Otter urged attendees to continue on the difficult path of collaboration and “come up with an innovative process through which we can resolve this issue.”[13]While some participants may not agree that the ESA is in need of reform, the workshops prove to be a good place to have conversations regarding the impact of the ESA.

Possible Template

On February 22, 2016, the Services updated a 1994 policy clarifying the role of State agencies in implementing the ESA.[14] The reason for this update is two-fold: (1) to establish a “renewed commitment by the Services and State fish and wildlife agencies to work together” in conserving wildlife; and (2) to recognize the States’ role in implementing ESA tools that have emerged or are now more common since 1994, such as Candidate Conservation Agreements with Assurances (“CCAAs”) and Habitat Conservation Agreements (“HCPs”).[15]

The ESA Cooperative Policy recognizes that States “possess broad trustee and police powers over fish, wildlife, and plans and their habitat within their borders.”[16] With this recognition, the policy invites States to have greater participation in five key ESA areas: Pre- and Post-listing under section 4; Section 7 consultations; HCP Planning; and Recovery efforts. The Services stress the need to utilize State expertise, authority and scientific information in all of these areas.

Specifically, in the Pre-listing context the Services encourage collaborative facilitation of “voluntary conservation actions”[17] on behalf of species before they reach the point at which they need Federal protection under the Act.[18] And if a species is listed under the ESA, a landowner may seek the regulatory assurances provided in a HCP. The updated policy could heighten interest in this conservation tool as it contemplates “work[ing] with State agencies to the maximum extent practicable,” especially when the State and Federal government both have “similar authority for permitting activities related to threatened and endangered species.”[19] The ESA Cooperative Policy provides the underlying rationale for this approach: “State agencies, because of their authorities and their close working relationships with local governments and landowners, are in aunique positionto assist the Services in implementing all aspects of the Act.”[20]

Implications for States and WGA

States will likely welcome the Federal invitation for greater Federal-State cooperation. In fact, most States seek greater state influence in statutes that foster a “cooperative Federalism” structure, such as the Clean Air Act or Clean Water Act.[21] But full partnership with the states under the ESA has always been elusive.[22] With the Services’ updated policy, the WGA, through its ESA Initiative, may now influence ESA enforcement.

From a State’s perspective, two immediate issues need to be addressed. First, there is a question of whether State fish and game agencies have the capacity (staffing and budgetary) to timely provide to decision-makers, the expertise and scientific information within the strict timeframes of required by the ESA. This is especially true for those agencies whose budgets heavily rely on licensing fees.

Second, is the potential for the States to use Section 6 of the ESA to influence Services’ decisionmaking. Although most States do not have a State-level ESA or similar permitting authority, the states might seek to utilize ESA Section 6 Agreements to foster innovation in ESA implementation.

Section 6 of the ESA states, “[i]n carrying out the program authorized by this Act, the Secretary shall cooperate to the maximum extent practicable with the State.” 16 U.S.C. § 1535(a). The Secretary is authorized to memorialize this cooperation by an agreement “in accordance with this section with any State which establishes and maintains an adequate and active program for the conservation of endangered and threatened species.” 16 U.S.C. § 1535(c).

Up to now, Agreements under Section 6 of the ESA have been primarily used as a tool to provide funding to States to implement projects for conserving listed species.[23] However, Section 6 need not be limited to this purpose. These cooperative agreements have been an underutilized tool due to the Act’s ambiguous statutory language. For example what is an “adequate and active” State program? This ambiguity is compounded by the fact that implementing regulations for Section 6 do not exist.[24] The WGA could seek to increase the influence of the states by urging adoption of Section 6 regulations that would recognize these HCPs as vehicles for states to participate in ESA enforcement.[25]

Conclusion

WGA’s ESA Initiative has the potential to move the ESA Cooperative Policy from a needed policy statement to something meaningful for stakeholders involved with ESA issues. Section 6 Agreements and the development of implementing regulations provide one avenue to accomplish this objective. The ESA Initiative has made remarkable progress in a short period of time. It remains to be seen whether the leadership of western governors can move the conversation from instructive anecdotes and best practices to identifying achievable changes in the cooperative operation of the ESA.

For more information, please contact Tom Perry of the firm’s Boise office or any other member of Marten Law’s Natural Resourcespractice.

[1]SeeS. 1180, “Endangered Species Recovery Act of 1997”; available at:http://thomas.loc.gov/cgi-bin/bdquery/z?d105:s.01180: (last visited Mar. 1, 2016).

[2]Western Governors’ Association, “Chairman’s Initiative – The Western Governors’ Endangered Species Act Initiative”; available at:http://westgov.org/initiatives/esa-initiative(last visited Mar. 1, 2016).

[3]The Secretaries of the Interior and Commerce have the responsibility for administering the ESA. Those duties have been delegated to the Services.

[4]SeeRevised Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act Activities, 81 Fed. Reg. 8663 (Feb. 22, 2016) (hereinafter “ESA Cooperative Policy”).

[5]WGA Chairman’s Initiative; available at:http://westgov.org/initiatives(last visited Mar. 1, 2016).

[6]Past Chairmen’s Initiatives have included such issues: energy, sage-grouse, water and drought, wildfire, outdoor recreation, and forest health.Seehttp://westgov.org/reportsto view the reports generated from these initiatives. The outcome of the initiative this year will also likely result in a report detailing the final recommendations and a resolution by the Governors endorsing those policy recommendations.

[7]Streater, Scott, “Western governors to take ‘hard look’ at ESA reform,” E&E News, Aug. 26, 2015; available at:http://www.eenews.net/eenewspm/stories/1060023985/search?keyword=WGA(last visited Mar. 2, 2016); Morton, Tom, “Governor Calls for Endangered Species Act Reform,” Aug. 26, 2015; available at:http://k2radio.com/governor-calls-for-endangered-species-act-reform/(last visited Mar. 2, 2016) (Governor Mead commenting that “roughly 1 percent of all species that have been listed have been delisted. That is not a story of success.”).

[8]WGA Chairman’s Initiative, “Workshops Page,” available at:http://westgov.org/initiatives/esa-initiative/workshops(last visited Mar. 2, 2016). WGA has made each panel, including the remarks of Governors Mead and Otter, available by YouTube video.

[9]SeeWGA Chairman’s Initiative; available at http://westgov.org/initiatives/esa-initiative(last visited Mar. 2, 2016);see alsoRemarks of Matthew H. Mead, Governor of Wyoming, “Improving the Endangered Species Act: Perspectives from the Fish and Wildlife Service and State Governors,” U.S. Senate Committee on Environment and Public Works Subcommittee on Fisheries, Water, and Wildlife (Sept. 29, 2015); available at: http://www.epw.senate.gov/public/index.cfm/hearings?ID=2C35FDB9-07B0-46D7-B7EF-EB5F4E07AC17 (last visited Mar. 2, 2016).

[10]WGA Chairman’s Initiative, “Webinars Page,” available at:http://westgov.org/initiatives/esa-initiative/webinars (last visited Mar. 2, 2016). These webinars are also available for public viewing.

[11]See generallyWGA Chairman’s Initiative; available at: http://westgov.org/initiatives/esa-initiative(last visited Mar. 6, 2016).

[12]WGA Chairman’s Initiative, “Workshops Page: Boise Roundtable – Recognition of Voluntary Conservation Efforts,” https://www.youtube.com/watch?v=EPXCgBmwLfQ(at 18:50) (last visited Mar. 2, 2016).

[13]WGA Chairman’s Initiative, “Workshops Page.”

[14]ESA Cooperative Policy at 8663.

[15]Id.For example, a CCAA provides assurances for enrolled and participating landowners that if the species is listed no additional conservation measures will be required. HCPs provide a similar type of regulatory assurance in the post-ESA listing context.

[16]ESA Cooperative Policy at 8663.

[17]Whether those pre-listing efforts are sufficient to preclude listing under the ESA, will likely require evaluation under the Services’ PECE Policy.See Policy for Evaluation of Conservation Efforts when Making Listing Decisions, 68 Fed. Reg. 15,100 (Mar. 28, 2003). The PECE Policy assists the Services in making ESA listing determinations where there are “formalized conservation efforts that have not yet been implemented or have been implemented, but have not yet demonstrated whether they are effective at the time of a listing decision.” The PECE Policy accomplishes this by identifying 15 individual criteria for assessing whether such efforts provide “a high level of certainty that the effort will be implemented and/or effective and results in the elimination or adequate reduction of the threats” posed to any species being considered for ESA listing.Id.at 15,114-15.

[18]ESA Cooperative Policy at 8664. WGA and States would be wise to press for a clearer understanding of the Services’ application of the PECE Policy before entering into these pre-listing agreements. Recently, the policy has been under the judicial microscope in two recent ESA decisions involving the lesser prairie chicken and the dunes sagebrush lizard.See Permian Basin Petroleum Cons. P’ship v. Salazar, 2015 WL 5192526 (W.D. Tex. 2015) (vacating FWS’s decision to list the species as threatened based on an improper application of the PECE Policy)cf. Defenders of Wildlife, et al. v. Jewell, et al., Case No. 14-5284 (D.C. Cir. Mar. 1, 2016) (upholding the district court’s decision that FWS correctly applied the PECE Policy to states’ voluntary conservation efforts when it decided to withdraw the proposed listing of the decision).

[19]ESA Cooperative Policy at 8664.

[20]Id.at 8663 (emphasis added).

[21]This is typically referred to as “primacy.” Primacy under a “cooperative Federalism” statutory scheme is where states have been granted the primary responsibility for administering and enforcing the permit program in a way that is better attuned to their objectives.

[22]SeeTaylor, Phil, “Western governor resent being ‘junior partners’ to feds,” Environment & Energy Daily; available at:http://www.eenews.net/eedaily/stories/1060025646/search?keyword=WGA(last visited Mar. 2, 2016). (Utah Governor Gary Herbert stating, “[t]he nation has strayed from that constitutional principle of federalism,” and that states “should not be treated … as if we are somehow junior partners to the federal government.”).

[23]FWS, Grants Overview, available at:http://www.fws.gov/endangered/grants/(last visited Mar. 1, 2016).

[24]Without implementing regulations, the limited experience of States and Section 6 Agreements beyond a funding mechanism has had mixed results. For example, the State of Idaho has experience with Section 6 Agreements as captured in the Snake River Act of 2004. SeeTitle X of Division J in the Consolidated Appropriations Act of 2005, H.R. 4818, 108th Cong. (2004) (enacted). Unfortunately, even with the imprimatur of Congress, the cooperative promise of that particular Section 6 agreement has been a disappointment.

[25]The ESA Cooperative Policy, specifically mentions Section 6 agreements as an avenue to fulfill the policy’s direction.

Original content at: http://www.martenlaw.com/newsletter/20160308-western-governors-esa-initiative

 

 

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