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Modernizing the Act

Mar 5, 2018

As calls for ESA reform have conservationists on high alert, western governors offer a way forward

“Here’s the problem. The Endangered Species Act isn’t working today,” said Senator John Barrasso (R-WY) at a hearing on Capitol Hill last February. As chairman of the Senate Environment and Public Works Committee, he hosted the hearing to discuss opportunities for modernizing the ESA, suggesting the act needs to be improved.

Illustration of bear“The Endangered Species Act is not broken. It does not need to be fixed, or, in the vernacular of the hearing, ‘modernized,’” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife, in her testimony at that same hearing. She went on to argue that “legislation proposed by Congress over the past decade has all sought to roll back and undermine ESA protections.”

Barrasso’s and Rappaport Clark’s perspectives represent two sides of a long-standing debate. On one hand, those in extractive industries like grazing, mining, energy production, and timber harvest, many of whom face restrictions on their activities in the name of protecting listed species, argue the act is overly burdensome and ineffective. They point to the low proportion of listed species (about 2 percent) that have recovered enough to be delisted.

On the other hand, conservation organizations and those with an interest in protecting biodiversity and ecological function call the ESA one of our country’s bedrock environmental laws. They point to the high proportion of listed species that have avoided extinction (more than 99 percent). The act helped species like the bald eagle and American alligator, once in rapid decline, rebound. Other species like the black-footed ferret, once considered extinct, now live in dozens of populations throughout several western states thanks to ESA-driven recovery efforts.

Still, even conservationists recognize the act could work better. While many are skeptical of any efforts from Congress to alter the law, they are interested in improving how the act is funded and implemented. Take, for example, the recovery plan, a key aspect of how the US Fish and Wildlife Service works to bring back threatened and endangered species.

“The median age is 19.1 years for a recovery plan,” said Jake Li, VP of endangered species conservation for Defenders of Wildlife. “I mean, if this is a roadmap for how you recover a species, and people aren’t using it because it’s so outdated, that’s a very low hanging fruit for improvements in day-to-day implementation.”

As a response to such challenges, the Western Governors’ Association launched a bipartisan initiative to bring interested parties together and look for ideas to make the ESA work better. Defenders of Wildlife came to the table.

“We’re very open and enthusiastic to work with anyone, including the Western Governors’ Association on regulatory improvements to the ESA, meaning changes to regulations, policies, day-to-day practices, things that really Congress has no role in,” Li said.

The Western Governors’ Association effort seems to be gaining traction on both sides of the aisle and may actually offer a path toward solutions that Republicans from the rural West, like Barrasso, as well as national conservation organizations, like Defenders of Wildlife, can agree to. In an atmosphere of increasing political division, the western governors are proving that transparent, inclusive collaboration may offer a viable opportunity to improve the function of the ESA.


Illustration of sage grouseIn 2015, the Western Governors’ Association elected Wyoming Governor Matt Mead as its chair, and he made species conservation and the ESA the focus of his term. Mead had seen more than a decade of fighting over wolves in Wyoming, with federal courts addressing five different lawsuits and ultimately reinstating an earlier USFWS delisting. He saw a lawsuit rush the listing decision for the greater sage grouse and cut the states, which were leading conservation efforts on the ground, out of the decision about when the listing determination would happen. And he saw Yellowstone grizzly bears reach their recovery goal with help from Wyoming and be delisted, only to have lawsuits place them back under federal protection.

“Having just gone through all the work that we’d done with sage grouse and then everything that we’d gone through with grey wolves and everything we’d been through with grizzly bears highlighted a need to start talking regionally and nationally about ESA issues and see if there is a way to make the act work better,” said Mead’s policy advisor David Willms.

“What we’d most like to see is that landowners who step forward and do good things for wildlife and for habitat, that they are rewarded for those things,” said Lesli Allison, executive director of the Western Landowners Alliance, whose members include ranchers across the West.

“You get better buy-in for the law if the act incentivizes good stewardship and conservation rather than is viewed as a punitive law,” Willms added.

Conservation groups had their own desires for species protections as well. The Environmental Defense Fund issued a statement calling on Congress to redirect its attention away from legislative changes to the ESA and toward “supporting wildlife solutions that are flexible, efficient, and cooperative,” pointing to state-led sage grouse conservation efforts in the West as a model.

Revising the act aside, “There is a lot of room for improvement. Everyone will say that,” said Steve Smutko, Spicer Chair for Collaborative Practice at the Ruckelshaus Institute (where this magazine is published) who facilitated discussion groups at the Western Governors’ Association ESA meetings. “It’s just how it gets done is the critical component.”

Governor Mead had a particular vision for how to get it done. He designed a process meant to break through the stalemate. The initiative asked ranchers and energy industry representatives to sit down with the very conservationists they’d been at war with for years. Any party with an interest in the future of endangered species management in the United States would have not just a seat at the table, but a real opportunity to insert their values and desires into the discussion. All the webinars, comment letters, and other meeting materials would be publicly available online. This would be a lengthy, deliberate, transparent process, a bipartisan dialog, and a genuine search for solutions.

The USFWS even sent its Assistant Director of Ecological Services, Gary Frazer, to attend. “My role is to inform the discussions, not to defend how we implement the act, not to advocate for any particular position, but just to inform,” he said. This included sharing details about how the USFWS implements the ESA. Others began to call him “the endangered species guru.” He and his superiors at the agency deemed his participation in this initiative, of all opportunities, a worthy investment of time and energy due to the bipartisan, state-led approach.

Illustration of wolfOver the next few years, the Western Governors’ Association hosted meeting after meeting. The first round, in late 2015 and early 2016, attracted some 500 attendees and resulted in a lengthy report and a resolution from the western governors. In a following round, from late 2016 into early 2017, smaller groups developed specific recommendations. And a third round of meetings, currently underway, is digging deeper into challenges like funding species recovery on private lands and designing landscape-scale conservation plans.

“I thought they did really good at reaching out to all sides,” said Bill Van Pelt, Grassland Coordinator for the Western Association of Fish and Wildlife Agencies, who attended most of the meetings and workshops. “They had livestock and they had conservationists and they had states and they had agencies.”

The Western Governors’ Association referenced ideas from the meetings to compose a set of recommendations, which they adopted by resolution in June 2017. Three statutory recommendations entail actual revisions to the Endangered Species Act, and would require Congress to take action. For example, WGA recommends altering the 12-month deadline for listing decisions and replacing it with a priority system where species in greater danger of extinction get action sooner than those with state-led conservation plans underway.

While several of the conservation organizations involved in the process oppose legislative changes to the ESA under the current Congress, they are on board with some of the other recommendations. Eleven administrative recommendations outline revisions to the regulations and policies that the USFWS uses to implement the ESA. For example, one calls on the agency to take into account conservation efforts by states, federal agencies, and private landowners when making listing decisions, and another requests a “‘playbook’ to inform citizens on how to engage throughout various steps of the ESA process.”

“I’m just going to look at number five,” said Li with Defenders of Wildlife. “‘Encourage the Service to develop Species Status Assessments that inform listing determinations. If listing is warranted, use that same assessment to develop a recovery plan.’ Half of those words are actually mine. Absolutely, that’s a great thing.”

The four funding recommendations call for actions like increasing financial support from Congress for ESA implementation, and pairing economic incentives with critical habitat designations on private land to reward habitat stewardship.

The Center for Biological Diversity, a group others point to as the most left-leaning of those who participated, called the initiative a “sham process,” but most participants, regardless of their perspectives on endangered species conservation, seemed to find something in the recommendations they could support.

Ethan Lane, executive director of the Public Lands Council and the National Cattlemen’s Beef Association, puts it this way: “If we as an industry were going to sit down in a room and sketch out what we want to change with the ESA, it would probably look very different than what the governors recommended.” But he appreciated the value of having all parties at the table, working together.

“What the governors put out is middle ground,” he said. “It’s a path forward that ostensibly everyone on the spectrum can find some value in. That’s the point. This was not intended to be a one-sided deal or a lopsided exercise or a predetermined outcome.”


So, what happens next? The western governors took their resolution to the National Governors’ Association, which incorporated its language into a policy position in 2017. Whether any Congressperson proposes a bill incorporating the initiative’s statutory recommendations remains to be seen, and the Western Governors’ Association does not lobby in DC. Still, the initiative is on the minds of leaders in Congress. At the US Senate Environment and Public Works Committee hearing last February, former Wyoming Governor and Democrat Dave Freudenthal advised Senator Barrasso and other members of the committee to take into consideration the work of the Western Governors’ Association. “The recommendations reflect a growing consensus about areas to be addressed within ESA modernization,” Freudenthal said. “I hope the Committee will take seriously the good work of Governor Mead and his colleagues.”

As far as the regulatory and administrative recommendations, it’s still unclear whether any will be adopted. “As part of the new [Trump] administration, the new policy team getting on board and setting a course will determine what are the next reg[ulatory] changes and policy revisions and the next steps we will take,” said Gary Frazer, “and this is certainly going to inform that discussion.”

And in November 2017, WGA started its third round of meetings. Work sessions continuing into January and March 2018 will focus on funding mechanisms, proactive and voluntary conservation, and landscape-level conservation as opposed to single-species approaches.

Despite the lack of real change so far, one after another, the participants described the initiative as worthwhile. “This dialog has been among the most well-structured, well-informed, and constructive conversations about how to improve species conservation and implementation of the ESA that I have ever been engaged in,” Frazer said. “I think that their recommendations have a lot of weight on the basis of the quality of the process that was used to produce them.”

“Conservation groups like ours are on high alert for political tampering with the ESA,” said Li with Defenders of Wildlife. But, he added, “that should not get in the way of collaboration. Because it’s only through collaboration that we are going to realize a lot of what everyone wants out of the ESA, which is successful conservation that works for species.”

The example set by the initiative goes beyond species conservation issues, too. If the idea of building partnerships isn’t radical enough in today’s world, consider the Western Landowners Alliance plea for working together, “to renew a vision for what this country can be.”

“Place-based collaboration really is the only viable solution to the complex challenges of any given landscape,” Allison said. “People need to remember that collaboration is the basis of civil society. Collaboration is what we do as people in communities and families. It’s what our entire political system arises out of. Collaboration is a foundation of the way that people live in the world together.”

By Emilene Ostlind

Emilene Ostlind edits Western Confluence magazine at the University of Wyoming. Her colleagues in the Ruckelshaus Institute of Environment and Natural Resources facilitated the Species Conservation and the Endangered Species Act Initiative collaborative process for the Western Governors’ Association.

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