At its summer meeting in Whitefish, Montana last month, the Western Governors Association took an important step toward bi-partisan reform – or “modernization” – of the Endangered Species Act.

The formal adoption of policy recommendations is a milestone in a process that Governor Matt Mead of Wyoming initiated in 2015. For the past two years, a diverse coalition of stakeholders has worked to develop a set of recommendations to improve the implementation of the Endangered Species Act (ESA or Act). Governor Mead launched the WGA Species Conservation and Endangered Species Act Initiative (Initiative) in 2015. In the first year of the Initiative, the WGA convened a series of topical workshops across the country that resulted in the WGA’s adoption of Resolution 2016-08, directing WGA staff to undertake a multi-year workplan around specific policy recommendations. Pursuant to that workplan, the WGA held a series of stakeholder meetings, each focused on a specific topic or section of the Act, with the ultimate goal of developing specific regulatory and statutory reforms to implement the broad policy principles expressed in Resolution 2016-08. These goals included:

 

(1) incentivizing voluntary conservation;

(2) listing, critical habitat designation, recovery, and delisting;

(3) the role of state and local governments in species conservation and ESA implementation;

(4) landscape-scale conservation; and

(5) utilization of best available science.

These work sessions produced consensus around a set of 18 statutory, regulatory, and funding-related reforms to improve the administration and efficacy of the ESA. More broadly, the WGA Species Conservation and ESA Recommendations emphasize three overriding issues:

(1) encouraging voluntary conservation and pre-listing efforts that help to avoid the need to list sensitive and candidate species, and ensuring that these efforts are taken into consideration when making listing decisions;

(2) increasing the role of states in species management, conservation, and listing decisions; and

(3) providing for increased regulatory certainty in the implementation of that Act.

To implement these broad policy goals, the Year-Two Recommendations include specific statutory reform proposals for Section 4 of the Act, allowing the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) increased flexibility to consider voluntary conservation initiatives when responding to listing petitions. Other proposed amendments would affect the designation of critical habitat, recovery, and de-listing process. Year-Two Recommendations for administrative reform focus on strengthened assurances in Candidate Conservation Agreements with Assurances (CCAAs) and 4(d) rules; recognition of voluntary conservation initiatives when making listing determinations; a greater role for states in developing conservation and recovery programs, including tools designed to incentivize voluntary conservation; and reform of the recovery and de-listing process through the establishment of Recovery Teams and Species Status Assessments (SSAs). Finally, the Year-Two Recommendations acknowledge the need of additional funding to adequately incentivize and fund pre-listing conservation and recovery efforts. WGA Policy Resolution 2017-11, by which the Western Governors formally adopted the Year-Two Recommendations, directs WGA staff to develop a specific work/action plan to implement the recommendations and present it to the Governors for adoption within three months following the formal adoption of the resolution. There can be no doubt – achieving meaningful legislative or regulatory reform to the ESA is not a task to be taken lightly. However, the bi-partisan process that led to the development of the Year-Two Recommendations should provide an important foundation on which to seek their ultimate implementation. Acting U.S. Fish and Wildlife Service Director Greg Sheehan offered an early indication of Administration support for the WGA approach in his testimony to the House Natural Resources Committee on 19 July.

Hogan Lovells lawyers participated in the work sessions that led to the development of WGA’s recommendations and will continue to stay abreast of their implementation and the likely attempt at ESA “modernization” in the 115th Congress.