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Interior Proposing Flexible Endangered Species Act, More State Input

The Obama administration is signaling support to innovate the venerable Endangered Species Act (ESA) that would, among other things, more engage the states -- a move that comes as Congress considers overhauling the 40-year-old law to take some authority away from federal agencies.

Late Monday the Department of Interior's U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced a suite of actions to improve the "effectiveness" of the ESA and demonstrate its flexibility. The actions include collaborating more with the states, as well as promoting the use of best available science and transparency. The proposal also would encourage more voluntary conservation efforts.

"The proposed policies would result in a more nimble, transparent and ultimately more effective Endangered Species Act," said FWS Director Dan Ashe. "By improving and streamlining our processes, we are ensuring the limited resources of state and federal agencies are best spent actually protecting and restoring imperiled species."

The effort would focus on recovering species and strive to make administrative and regulatory improvements. No legislative changes to the ESA are sought because the agencies "believe that implementation can be significantly improved through rulemaking and policy formulation."

Interior Secretary Sally Jewell said the policies "will make an effective and robust law even more successful, and will also reinforce the importance of states, landowners and sound science in that effort."

The announcement to innovate the ESA preceded an oversight hearing Tuesday by the House Committee on Natural Resources regarding whether states are doing an adequate job of managing the dwindling greater sage grouse population (see related story). A Senate committee earlier this month heard testimony regarding several bills to amend the ESA, including one that would require federal regulators to recognize for at least six years state conservation plans for sage grouse (see Daily GPI, May 6).

The greater sage grouse, whose habitat is spread across 11 western states, became a candidate for protection under the ESA in 2010, but following a court settlement in 2011, Interior agreed to delay a decision on listing until the end of September (see Daily GPI, Dec. 30, 2011).

Last Friday, Colorado Gov. John Hickenlooper issued an executive order for state agencies to step up their efforts to protect the greater sage grouse in hopes of preventing an ESA listing.

Many of the regulations implementing ESA, which was signed into law by President Nixon in 1973, were promulgated in the 1980s and "do not reflect advances in conservation biology and genetics, as well as recent court decisions interpreting the act's provisions," Interior said. The Obama administration first recommended updates in 2011, and the latest steps would, among other things, ensure states are "partners in the process by which imperiled species are considered for listing under the act."

The proposed changes would require petitioners for listings to solicit information from relevant state wildlife agencies before submitting petitions. Any information provided by the states would have to be included in the petitions.

"State fish and wildlife agencies, by virtue of their responsibilities and expertise, are essential partners in efforts to conserve threatened and endangered species," Interior said.

The FWS and NMFS would implement the revised petition regulations to update policy regarding the role of state agencies to reflect advancements in collaborating with the federal agencies.

"For decades, the Endangered Species Act has helped protect threatened species and their habitats," said Secretary of Commerce Penny Pritzker. "The changes announced...amount to an improved way of doing business, one that advances the likelihood of conservation gains across the nation while reducing burdens and promoting certainty."

According to Interior, the changes would provide more clarity to the public and to the states "on what information would best inform the evaluation of a species' status and result in better coordination with state wildlife agencies, which often have unique information and insights on imperiled species."

Additional proposals to be unveiled over the coming year also are designed to improve science and increase transparency by strengthening procedures to ensure that all information is publicly disclosed. The proposals also are to lead to more rigorous procedures to ensure "consistent, transparent, and objective peer-review of proposed decisions.

Voluntary conservation programs, such as safe harbor agreements and candidate conservation agreements also are planned. The FWS and NMFS plan to update guidance on the use of these tools to establish consistent standards and adopt a policy to promote "expanded use of conservation banking and other advanced mitigation tools."

In addition, the agencies plan to focus some resources to dovetail with other work ongoing regarding threatened species. This would include the National Oceanic and Atmospheric Administration's initiative to reduce, stabilize and reverse by 2020 the rate of decline of vulnerable marine species. The agencies also plan to update the Habitat Conservation Planning Handbook to make permitting plans more efficient.

"Consistent with the intent of the ESA that listing decisions be based on the best available science, we appreciate...due recognition of, and requirement to, incorporate the data and information of state fish and wildlife agencies for the formulation of listing petitions," said Association of Fish and Wildlife Agencies President Larry Voyles.

Public comments are to be accepted for 60 days once the proposed rule is published in the Federal Register, expected this week.

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