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Since the enactment of the Endangered Species Act (ESA) in 1973, wildlife conservation has evolved to include more robust science, greater public involvement, and expanding partnerships. However, the ways state and federal managers work together hasn't evolved at the same pace. A more proactive approach to encourage, promote, and assist states in implementing conservation is overdue.
In May 2019, the University of Wyoming's Haub School of Environment and Natural Resources and College of Law, along with Texas A&M University's Natural Resources Institute and School of Law, convened a workshop that brought together 22 federal ESA and state wildlife conservation experts to reimagine the state-federal relationship and discuss opportunities for states to engage more meaningfully in species conservation efforts.
An incredible discussion transpired. The participants challenged existing norms of species conservation and developed innovative ideas. This remarkable conversation resulted in a series of agreements in principle that state and federal agencies can collaboratively take to improve species conservation on the ground.
"Regardless of perspective, the state-federal relationship must be well thought out and grounded in the goals of ensuring species protection by restoring imperiled species and conserving our broader wildlife heritage."
Above: The Gila trout is the focus of successful collaborative state and federal conservation efforts. The fish was downlisted from endangered to threatened in 2006.
For many species, particularly those that occur primarily on nonfederal lands, states have led recovery implementation. In 2018, conservation carried out by Utah state agencies helped move the deseret milkvetch off of the federal list of endangered and threatened plants.
The workshop’s objective was to seek agreements in principle, not necessarily consensus. Accordingly, these agreements in principle should not be interpreted as binding on any workshop participant. Rather, they should be interpreted as concepts or recommendations the participants found generally acceptable.
Comprehensive insight into the status of state wildlife management and opportunities for cross-state learning and capacity enhancement would be useful.
1.1 Inventory state resources and authorities for species conservation, including both federally listed and unlisted species as well as ecosystem conservation.
Opportunities exist at both state and federal levels to promote conservation before decline triggers a listing under the ESA. However, the absence of dedicated incentive mechanisms, clear policy goals, and funding for collaborative involvement of state wildlife agencies and the US Fish and Wildlife Service (FWS), the lead federal agency implementing the ESA for terrestrial and freshwater species, in pre-listing conservation greatly hinders this work.
2.1 Create incentives at all levels of government to conserve and enhance habitats essential to listed species and those at risk of listing.
2.2 States and the FWS should work together to develop mechanisms to conserve not only individual species and their habitats but also habitats at the landscape scale.
2.3 States, with support from the federal government, should engage in conservation early enough to reverse species declines.
2.4 Clearly define state and federal roles for pre-list efforts. The authority to manage unlisted species rests with the states, yet the FWS's expertise can be extremely helpful in designing conservation strategies.
The FWS produces Species Status Assessments—compilations of the best available science about a species' biology, habitat, demographics, and more—to inform decisions about species' listing status. States, despite relevant expertise, have had inconsistent participation in these assessments.
3.1 Develop further FWS policy to encourage effective state involvement and engagement in Species Status Assessments. Training for both federal and state participants in communication and collaborative skills would be beneficial.
3.2 Revise current FWS guidance to direct state involvement in Species Status Assessments for not only listing efforts, but also up-listing, down-listing, and delisting activities.
3.3 The FWS should issue policy that recognize the circumstances in which state-led assessment efforts would be appropriate.
The FWS has the ability to manage threatened species more flexibly than endangered species through the application of 4(d) rules. The FWS could engage states more often and meaningfully on opportunities to improve how species specific 4(d) rules are written and implemented.
4.1 Consider state conservation programs and laws as the basis for 4(d) exemptions where they are providing adequate conservation.
4.2 Use 4(d) rules, accompanied by state management plans, to prepare for the delisting of threatened species.
4.3 Use the process of engaging states in Species Status Assessments as a foundation for developing 4(d) rules.
4.4 Tailor protections in a 4(d) rule based on population/geographic specific conservation needs.
4.5 Develop a 4(d) national guidance document or handbook.
Communication between states and the FWS could be improved on both their substance and the process of gathering and including state input.
5.1 The FWS should develop procedures for engagement with state governors and responsible state agencies.
5.2 The FWS should engage with interested or affected state interests early, before formal federal decision-making processes commence.
5.3 State should submit information, comments, and data in a way that is readily documentable and useable to the FWS and other stakeholders.
To be effective, recovery plans need to reflect input from all partners, particularly state wildlife agencies. Further, opportunities exist for greater state engagement or even leadership in recovery plan implementation. Better state engagement during recovery plan development and implementation could translate to stronger assurances of post-delisting management and more defensible delisting decisions.
6.1 The FWS should develop a formalized process for states to lead recovery plan development.
6.2 The FWS should develop and offer training and outreach to states about data needs, standards, and coordination.
6.3 The FWS should clarify and strengthen the process for delisting of conservation-reliant species based on state conservation assurances.
States are at the front lines of species conservation. Yet less than five percent of all funding under the ESA goes to state species conservation. Funds generated by hunting and fishing are the primary revenue for most state fish and wildlife agencies, but there is no similar funding source for non-game species.
7.1 Significantly expand funding for wildlife conservation. Federal funding is necessary and should be complemented by creative state funding sources, such as state wildlife trust funds, leveraged private sources, and even funding from license plates.
The Louisiana Department of Wildlife and Fisheries worked with the FWS to develop
a programmatic CCAA for the Louisiana pine snake to address the conservation needs
of the species on private lands in an effort to preclude the need to list the species
under the ESA.
Following are highlights from the workshop on Improving Cooperative State and Federal Species Conservation Efforts with a discussion of the relevance for specific stakeholder groups. Our hope in featuring key agreements in principle of potential interest to these communities is to inspire action.
There has been an ongoing discussion about the role of states in the conservation of threatened and endangered species since the passage of the ESA. Better engaging and assisting states in implementing conservation could enhance species health and recovery.
The states and federal agencies play important and complementary roles in species conservation. States in particular are well-positioned to support landowners and land managers on-the-ground.
Reimagining the relationship between the states and the federal government in implementing the ESA could lead to better and more effective species conservation. States are well-positioned to help conserve species and should have a more significant role in ESA processes.
Further federal support can bolster the important and complementary role states play alongside the federal agencies tasked with implementing the ESA.
Temple Stoellinger, Michael Brennan, Sara Brodnax, Ya-Wei Li, Murray Feldman, and Bob Budd. "Improving Cooperative State and Federal Species Conservation Efforts." 20(1) Wyoming Law Review 183 (2020).
Download a 4-page summary of the agreements in principle and highlights for stakeholders shared on this web page.
BenDor, Todd K., Kristen A. Vitro, and J. Adam Riggsbee. “Pre-Lising Conservation of Candidate Species Under the Endangered Species Act: An Evaluation of Prevalence, Accessibility, and Market-Based Conservation Efforts.” Environmental Science & Policy 74 (August 2017): 68–74.
Camacho, Alejandro E., Michael Robinson-Dorn, Asena Cansu Yildiz, and Tara Teegarden. “Assessing State Laws and Resources for Endangered Species Protection.” Environmental Law Reporter 47 (2017): 10837–10844.
Doremus, Holly. “Listing Decision Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy.” Washington University Law Review 75, issue 3 (January 1997): 1029–1153.
Fischman, Robert L., Vicky J. Meretsky, Willem Drews, Katlin Stephani, and Jennifer Teson. “State Imperiled Species Legislation.” Environmental Law 48 (2018): 81–124.
Nagle, John Copeland. “The Original Role of the States in the Endangered Species Act.” Idaho Law Review53, no. 2 (April 2018): 387–423.
Scott, Michael J., Dale D. Goble, Aaron M. Haines, John A. Wiens, and Maile C. Neel. “Conservation-Reliant Species and the Future of Conservation.” Conservation Letters 3 (2010): 91–97.
Stoellinger, Temple. “Wildlife Issues are Local – So Why Isn’t ESA Implementation?” Ecology Law Quarterly44, no. 4 (October 2017): 681–726.
Wilms, David and Anne Alexander. “The North American Model of Wildlife Conservation in Wyoming: Understanding It, Preserving It, and Funding Its Future.” Wyoming Law Review 14, no. 2 (2014): 659–702.
U.S. Fish and Wildlife Service, Interior, and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce. “Revised Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act Activities, a rule by the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration,” Federal Register 81, no. 34 (February 22, 2016): 8663 –8665.
U.S. Fish and Wildlife Service. USFWS Species Status Assessment Framework: An Integrated Analytical Framework for Conservation, Version 3.4. Washington, DC: U.S. Fish and Wildlife Service, 2016.
U.S. Fish and Wildlife Service, Interior, and National Oceanic and Atmospheric Administration, Commerce. “Policy for Evaluating Conservation Efforts When Making Listing Decisions,” Federal Register 68, no. 60 (March 28, 2003): 15100–15115.
U.S. Fish and Wildlife Service. Recovery Planning and Implementation. Washington, DC: U.S. Fish and Wildlife Service, 2019.
Bean, Michael J. Landowner Assurances Under the ESA Working Paper. Madison, WI: Sand County Foundation/Environmental Policy Innovation Center, 2017.
Li, Ya-Wei. Section 4(D) Rules: The Peril and the Promise. Washington, DC: Defenders of Wildlife, 2017.
Western Governors’ Association. WGA Species Conservation and the Endangered Species Act Initiative Year Two Recommendations. Denver, CO: n.d.