Western governors issue policy statement outlining ESA concerns

Western US governors called for closer federal cooperation with state and local governments under the Endangered Species Act. “Given the impact ESA listing decisions have on vital state interests, states should be provided the opportunity to be full partners in administering and implementing the ESA,” they said in a policy statement issued as their 2016 annual meeting concluded in Jackson Hole, Wyo.

The 1973 law’s premise is a strong federal-state partnership, the June 14 policy statement noted. “But the act and its implementation should seek to provide expanded and meaningful consultation opportunities for states to comment, participate, or perform before the federal government takes action,” it said. “Such participation is largely optional under the current scheme, and has been provided inconsistently.”

Several western governors, particularly from states where the federal government owns most of the land, have expressed anxiety about possible local impacts from US Fish and Wildlife Service proposed threatened or endangered species listings.

Oil and gas producers worked with state wildlife agencies, county and local governments, ranchers, outdoor recreation groups, environmental organizations and other stakeholders to manage the greater sage grouse’s habitat over 11 states and keep it from being listed (OGJ Online, Sept. 22, 2015).

Lawsuits have continued, however, most recently when the Western Energy Alliance and North Dakota Petroleum Council jointly filed an action charging the US Bureau of Land Management and US Forest Service developed amended land use plans for the bird that impose restrictions on new oil and gas leases and on development of existing leases (OGJ Online, May 13, 2016).

“The role of states also has been limited by rigid internal federal processes, interagency jurisdictional disputes, and interpretations of the provisions of the Federal Advisory Committee Act,” the policy statement said. “This scenario has prevented the sharing of scientific information and the consideration of state-determined, science-based information.”

It said western governors recognize that species and habitat protection can be enhanced through working with the National Marine Fisheries Service within the US Department of Commerce, and FWS and other US Department of the Interior agencies, as well as appropriate changes in the laws itself.

“However, determining the shape of those changes has proven controversial and Congress has been unable to reauthorize the ESA since [the law’s] spending authority expired in 1992,” the policy statement said. It noted that key areas in addition to authorization which need to be addressed include:

• Improving regulatory flexibility for federal agencies to prioritize petitions received to list or change the listing status of a species under the ESA.

• Establishing a comprehensive incentive system to encourage state and local governments to develop water, land-use, and development plans that meet the ESA’s objectives as well as local needs, both before and after a species is petitioned for listing under the law.

• Providing adequate tools and incentives that encourage private landowners to engage in species and habitat conservation activities both before and after a species is petitioned for listing under the ESA.

• Addressing ways to discourage litigation that strains federal resources, and impedes the agencies’ ability to direct resources to truly imperiled species.

• Making ESA Section 6 more functional to increase partnerships and cooperation between states and the federal government in addressing issues involving the law.

• Providing greater distinction between the management of threatened versus endangered species under the law to allow for greater management flexibility, including increased state authority for species listed as threatened.

• Providing more extensive state engagement in development and implementation of Section 4(d) special rules or other ESA mechanisms which promote species conservation while addressing situations that merit flexibility or creative approaches.

“Climate change is increasingly being used as a determinant factor in the assessment of the need to list a species under the Act; however, the ESA may not be equipped to address this potential global threat to species and habitat,” the statement said. “Nevertheless, the meaning of ‘foreseeable future’ with the use of climate modeling is still undefined for effective management decisions related to implementation of the ESA.”

Predictions from climate models grow increasingly uncertain over time, it said. Additionally, the federal services currently have no criteria to weigh the model uncertainty related to projected scientific information, such as climate change, in their scientific reviews, the statement said.

“The ESA requires that the services use the ‘best available’ biological information in making determinations about individual species’ status for the purposes of the ESA,” it said. “Biological information should be collected as thoroughly as possible in the timeframe provided by the [law], and should include scientific information and biological opinions from affected states.”

Contact Nick Snow at nicks@pennwell.com.

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