12.1 Preamble

The Governors applaud the intent of the Endangered Species Act (ESA). Since its enactment in 1973, ESA has helped prevent the extinction of some threatened and endangered species, while providing ancillary benefits to other sensitive species. The Governors also recognize that species and habitat protection can be enhanced through appropriate changes in the act. States possess broad trustee and police powers over fish and wildlife within their borders, including those found on federal lands within their borders. With the exception of marine mammals, states retain concurrent jurisdiction even where Congress has limited state authority, as in the case of endangered species.

Reviewing the record of the last thirty years, the Governors make the following observations.

• ESA is "crisis-driven." The act needs a system of incentives to encourage state and local governments to develop comprehensive land-use and development plans that balance habitat preservation and environmental concerns with necessary development and economic growth. The act also needs to focus more clearly on the protection of multiple species and the habitats upon which they depend. ESA should encourage private landowners to engage in habitat conservation activities. It must identify and prevent problems before they become critical and more difficult to manage.
• Funding for ESA should be enhanced to address the growing list of threatened and endangered species. Significant funding needs to escalate rapidly, as state and federal agencies increasingly assume ESA management activities and embrace ecosystem management strategies as means to protect species and their habitats.
• ESA needs a clear methodology for delisting recovered species. Even when actual recovery has occurred, species frequently are not delisted. This failure to acknowledge success aggravates public frustrations generated by the cost and inflexible processes of ESA.
• ESA would benefit from providing more meaningful opportunities for states to comment, participate, or take the lead before the federal government makes any number of decisions—ranging from listing through delisting—under ESA. Such consultation is largely optional under the current scheme and has been provided erratically. 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 (FACA). This scenario has prevented the sharing of scientific information and the consideration of state-based information.
• Together, all of these factors would help rebuild public support and enthusiasm for the maintenance of biological diversity and the protection of species and habitats. Public support is essential to successful accomplishment of the goals of the act as established by Congress.

12.2 Recommendations

The National Governors Association calls for the reauthorization and amendment of the Endangered Species Act of 1973 based on three goals: to increase the role of states, to streamline the act, and to increase certainty and technical assistance for landowners and water users. These goals should be achieved while maintaining the act’s integrity and original intent to conserve listed species. Implementation of the following recommendations will improve the effectiveness of the act by making it more workable and understandable.

12.2.1 Multispecies Planning. Increasingly, state and federal agencies and private conservation organizations have recognized the limitations of the "single-species approach" to conservation and have taken commendable steps to utilize Section 4(d) rules and habitat conservation plans to move toward multispecies planning. The act should authorize the recovery and protection of species in clusters or related groups, where appropriate. It should continue to give priority to the conservation of the species and habitats that, if protected, are most likely to reduce the need to list other species dependent on the same ecosystem.

There is wide agreement that the value of habitat-based planning lies not only in its benefit to species and ecosystems, but also in its promise of long-term certainty with respect to land use both within and outside of designated critical habitats. A planning process for multiple species should include incentives such as authorization for short-form, cost-effective habitat conservation plans under Section 10; "no surprise" policies; safe-harbor policies; small landowner and small impact exemptions; and other initiatives that provide certainty and encourage voluntary efforts by landowners.

12.2.2 State Delegation and Increased State Role. The act should affirm and be carried out in a manner that recognizes the broad trustee and police powers that states possess over fish and wildlife within their borders, including those found on federal lands, and the concurrent jurisdiction for listed species that the states and the U.S. Secretary of Interior share. The act can be effectively implemented only through a full partnership between the states and the federal government.

One way to accomplish this partnership is through the delegation of authority for the development of conservation and recovery plans by states that accept that delegation and agree with the secretary to perform in accordance with specified standards. A federal-state collaborative rulemaking process should be established to determine the standards and guidelines for state participation in or assumption of authority for decisions under the act, while recognizing that the secretary retains final decisionmaking authority. Such delegation should be accompanied by grants to cover additional administrative costs. If a state chooses not to lead an activity, it should remain a full partner in administering the federal program to ensure that its authorities, on-the-ground expertise, and working relationships with local governments and holders of real property rights are utilized and that duplication is minimized.

12.2.3 Public Participation. To increase cooperation, the law must enable stakeholders to participate directly in the important decisions of ESA management. Currently, public comments are only required to be solicited for the development of recovery plans. During both the listing process and the drafting of recovery plans, public hearings and the solicitation of comments should be required and significant comments should be addressed.

In addition, current law allows judicial review only for the denial of a listing petition, not for the acceptance. To ensure fair and equal access to the legal system, judicial review must be granted for both the denial or the acceptance of petitions.

As an alternative to judicial review, ESA should incorporate alternative dispute resolution mechanisms or mediation activities as means to resolve disputes and ensure the best application of scientific information in listing decisions.

12.2.4 Enhanced Science. Given the broad implications that may arise when ESA actions are taken, decisions must be based on good science. Peer review of listing decisions by acknowledged independent experts and/or state wildlife experts is important to ensure the public that decisions are well-reasoned and scientifically based.

Peer review committees should be agreed upon by both the U.S. Fish and Wildlife Service and the state. State agencies also have expertise and other institutional resources, such as mapping capabilities, biological inventories, and other important data, that should be employed in developing endangered species listing and recovery decisions. FACA is an obstacle that prevents the free flow of information between states and federal agencies with wildlife management responsibilities. As concurrent regulators, state government agencies must be exempt from FACA restrictions.

12.2.5 Recovery Goals. The act should have as its central focus the recovery of species. Every effort should be made to complete a recovery plan within one year of a species being listed, and federal agencies should publish recovery goals in conjunction with the listing decision based on the best available science at the time of listing. Designation of critical habitat should be discretionary if the secretary determines it is either undeterminable or is not necessary for the protection of the listed species. If critical habitat is designated, the act should provide for such designation during the development of recovery plans. An administrative process to downlist and delist species should be automatically triggered when the quantitative goals and targets of a recovery plan are met. The secretary should be given the flexibility to allow, to the maximum extent practicable, species to be delisted or downlisted, along state geographic boundaries, when they have reached their recovery goals within a state, regional, national, or multistate recovery program that has been developed consistent with the purposes of the act.

Recovery plans should provide expedited Section 7 consultation procedures and inexpensive short-form, model habitat conservation plans as incentives for participation, as well as special relief for small landowner and small impact activities. Direct stakeholder responsibility and participation in developing the implementation plans that carry out recovery plans and conservation agreements will reduce litigation and delay. These improvements not only benefit the species, but also benefit the affected locality. The public has a right to know whether it will be impacted with the implementation of ESA. For this reason, positive and negative economic impacts must be assessed and considered in order to minimize adverse impacts during the preparation of recovery plans.

Governors urge the federal government to ensure states and their state agency experts are included in the recovery teams that are charged with the development, implementation, and management of species recovery programs. State personnel bring management expertise, local proficiency, and working relationships with private landowners and local regulatory agencies that need be involved in the recovery program.

Congressional intent in the 1973 act to distinguish between endangered species and threatened species has been almost entirely eroded. Congress must reassert the distinction as originally intended. When a species is classified as threatened, regulatory restrictions appropriate to endangered species must give way to greater deference to states, greater program flexibility, and a broader range of permissible actions in developing a creative conservation program.

12.2.6 Funding. Inadequate funding remains an impediment to the success and the public’s support of ESA. Without adequate funding, burdens are unfairly placed on local communities and owners of private property. The Governors call for the formation of a national task force composed of federal, state, and local representatives to identify creative and equitable funding strategies. Such a task force must have the stature to generate meaningful recommendations that will overcome the institutional inertia on ESA funding. Possible funding sources to enhance the effectiveness of the act include the Land and Water Conservation Fund, the original intent of which was to provide at least 50 percent of proceeds to state programs but which is now directed almost entirely to federal agencies, and the Transportation Enhancement Activities Program.

12.2.7 Incentives. Although a majority of endangered and threatened species are found on nonfederal land, there are few incentives for private landowners and state and local governments to undertake conservation measures before a crisis exists. The reauthorized act must provide incentives for state and local governments, private landowners, and private organizations to assist in species habitat and species conservation and with recovery efforts and habitat preservation. However, these incentives should not replace or supercede the need to fully fund existing ESA programs within the U.S. Department of Interior and the U.S. Department of Commerce.

The Governors recommend to Congress those incentives described in the Keystone Center's Keystone Dialogue on Incentives to Protect Endangered Species on Private Land (July 1995). The Governors also endorse efforts to expand nonregulatory, incentive-based, and commercial conservation efforts.

In addition, states should be authorized to initiate conservation agreements with federal, tribal, and local agencies and private landowners to conserve declining species before the need to list those species. In cooperation with the states, the secretary should determine the standards and guidelines for these conservation agreements. These agreements should include landowner certainty provisions and incentives to encourage the involvement of federal agencies as well as private landowners and other nonfederal parties in this preventive effort.

Time limited (effective Winter Meeting 2008–Winter Meeting 2010).
Adopted Annual Meeting 1994; revised Annual Meeting 1996; reaffirmed Winter Meeting 1998, Winter Meeting 2000, and Winter Meeting 2002; revised Winter Meeting 2004, Annual Meeting 2005, and Winter Meeting 2006; reaffirmed Winter Meeting 2008.