Federal, state officials offering differing views of the ESA

The Endangered Species Act works best when state governments and local stakeholders are heavily involved, witnesses testifying before a US Senate Environment and Public Works subcommittee agreed. But they strongly differed on whether the 1973 law itself is still effective, or needs to be reformed.

US Fish and Wildlife Service Director Dan Ashe said it’s working well. “In implementing the ESA, [FWS] adheres rigorously to the statutory requirement that implementation of the law be based on the best available information,” Ashe said in written testimony before the Fisheries, Water, and Wildlife Subcommittee.

At the same time, FWS has responded to the need to develop flexible, innovative mechanisms to cooperate with states, private landowners, and others, both to preclude the need to list species where possible, and to speed the recovery of species which are listed, Ashe said.

Two Western states’ governors who followed him as witnesses said otherwise. “In my view, the ESA is broken,” said Wyoming Gov. Matt Mead (R), who became Western Governors Association chairman in June and quickly made ESA reform his year-long initiative. “I understand why it takes 10-20 years for a species to recover, but once it does, why does it take so long to get it off the list? Reforms would help us do a better job protecting other species.”

Montana Gov. Steve Bullock (D), who is WGA’s vice-chairman and testifying alongside Mead, said, “We need to do everything we can to make sure species aren’t listed in the first place. Committees in Congress need to double down and find ways to assist landowners in taking steps to ensure that a listing isn’t necessary. Second, we need to recognize when the act has served its intended purpose and let the states manage species within their borders.”

Signs of success

Ashe said some aspects of the ESA’s record are worth noting. “Already in this administration, more species have been taken off the endangered list due to recovery than in any prior administration,” he said. “Though still warranting protection, many other species—among them the California condor, black-footed ferret, whooping crane, Florida manatee, Kirtland’s warbler, Kemp’s ridley sea turtle, and Florida panther—have had their populations increase to or near their highest levels in decades.

“Scores of other species that were identified as candidates for federal protection, like the dunes sagebrush lizard, were ultimately determined not to need that protection as a result of conservation efforts spurred by the potential prospect of a listing under the law,” Ashe said.

FWS’s recent decision that the greater sage grouse does not warrant listing as a threatened or endangered species was a triumph for all concerned, the witnesses agreed (OGJ Online, Sept. 22, 2015). They said it happened because coordinated efforts to conserve the bird’s habitat across 11 western states by federal agencies; state, county, and local governments; the oil and gas industry and other businesses; ranchers and other landowners; sports and recreation groups; environmental organizations worked so well.

“Revisions to 98 federal land use plans were bolstered by development of state sage grouse management plans in 10 of the 11 states in the sage grouse range and by a voluntary, multipartner private-lands effort that has protected high-quality sage grouse habitat on millions of acres of ranches across the West,” said Ashe. “The goal was to ensure enough protection to reduce the threats to the species such that listing was not required, and the partnership succeeded in meeting that goal.”

The challenge now is to make such successes the rule, and not the exception, the governors asserted. “If I could change the law myself, I’d want a very strong presumption that the states and federal government know what they’re doing. That’s not always the case,” Mead said. “A year and a half after the states and the FWS director agreed not to list the grey wolf, it all collapsed. We’d like to see anyone who proposes a listing get information from the states and see our data first, and limit each proposed listing to one species instead of several.”

Bullock said, “I think science has to guide this, with individual consultation with the states. I don’t think it necessarily should be instituted with the states exclusively.”

Litigation reduced

Ashe said under a multiyear listing work plan established in 2011, FWS has dramatically reduced the amount of ESA-related litigation and focused its limited resources on the conservation of species that are candidates for ESA protection.

“The work plan makes administration of the ESA more effective and efficient by enabling the agency to prioritize its workload based on the needs of at-risk species,” Ashe said. “It also provides federal and state agencies and landowners clarity and certainty about the timing of future listing determinations. The work plan has also catalyzed stakeholders to engage in conservation efforts to address species’ needs before a listing decision is made.”

the subcommittee’s chairman, Dan Sullivan (R-Alas.), who was the state’s attorney general and natural resources commissioner before his 2014 election to the US Senate, said, “I think a lot of the time, the best ideas come from the ground, and come from the states.” He asked Mead and Bullock if FWS consulted with states prior to listing decisions. “A lot of times, the states have more information and a sense of how a listing will impact local communities better than folks in Washington,” Sullivan said.

“It’s been somewhat inconsistent,” Mead responded. “In some cases, we couldn’t ask for more. With the sage grouse, we were very involved with federal agencies as the act requires. But consultation is a different question than agreement.”

Bullock said, “I can point to 2009, which the leopard frog was considered. We had an opportunity to do further studies, and it wasn’t listed. We as states think it’s essential for the federal government to consult with us. Our scientists sometimes work for decades.”

Sullivan said he would like to explore ways to make truly effective state and federal cooperation strong enough to withstand legal challenges by groups with narrow interests. “Otherwise, you could even get to a point where federal agencies, states, and others agree that a species doesn’t need to be listed, and then it gets thrown into a court in the DC or Ninth Circuit and becomes a crap shoot,” he said.

“Anything which would get states involved more would be welcome,” Mead said. “But the FWS director still needs to be in charge.”

Contact Nick Snow at nicks@pennwell.com.

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