At the conclusion of its annual meeting earlier this month, the Western Governors’ Association adopted a broad policy resolution (2016-08) with specific recommendations for reform of the Endangered Species Act (16 U.S.C. § 1531 et seq.). Not surprisingly, these recommendations envision a greater role for states in the management of threatened species and their habitat, and in implementation of the Act.

Governor Mead’s Initiative

Adoption of the resolution came at the end a year-long “Species Conservation and Endangered Species Act Initiative,” featuring four workshops and five webinars for stakeholders across the West. The Initiative was chaired by Governor Matt Mead of Wyoming, who had adopted ESA reform as the pivotal theme of his term as Chairman of WGA. Speaking for a bi-partisan consensus of the western Governors, Mead observed that “(t)he current implementation of the ESA often deters meaningful conservation efforts and divides, rather than unites people.”

Full Partnership for the States

Relying on section 6(a) of the Act, which requires cooperation between the Secretary and the states in carrying out the ESA “to the maximum extent practicable,” WGA seeks a “full partnership” in administering and implementing the ESA. The states’ expertise in resource management would be especially relevant in listing decisions and the designation of critical habitat. Perhaps the most far-reaching of the Governors’ recommendations is their proposal of a “regulatory presumption,” in which robust state or multi-state conservation plans would be recognized as justification to forgo the listing of a candidate species. In this way, the Governors seek to codify the finding in PBPA v. Department of the Interior, where listing of the Lesser Prairie Chicken was vacated because the Fish and Wildlife Service (FWS) had failed to follow its own Policy for the Evaluation of Conservation Efforts (PECE). In making a listing decision, FWS is required by PECE to determine whether a pre-existing conservation plan is likely to be effective if implemented, and whether it is likely to be implemented.

Goals for Reform

In addition, the Governors state seven “broad goals” to be considered by the Congress in re-authorizing and amending the Endangered Species Act: renewed emphasis on recovery of species and de-listing; reliance on “sound science” in making listing decisions; increased incentives and funding for conservation, including “block grant” of section 6 funds; and a definition of “foreseeable future” which signals whether climate change is to be a factor in listing decisions.

Next Steps

In announcing adoption of the policy resolution, Governor Mead made clear that ESA reform would remain a priority for him and WGA. WGA staff are directed to prepare within three months the first annual action/work plan which lists specific actions, targets and timelines for “furthering the policy resolutions and goals (of the) resolution”. These are likely to include adoption of a comparable resolution by the National Governors Association, where Governor Mead chairs the Natural Resources Committee, communication with the transition team of the incoming Presidential administration, and advocacy on Capitol Hill. The Congress has for many years been loathe to tackle controversial ESA issues. However, it may now welcome an opportunity for dialog on issues raised by Governors of both parties who seek a larger role for their states in the implementation of ESA.