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. State Conservation Agreements under the Endangered Species Act GOnG6 Western Governors' Association June 30, 1998 Resolution 98 - 012 SPONSOR: Governor KiiZhaber I r-~--. II, .... -- , Ii - ~_' .':~. c .. ,.: < {' ,. ,I" i ..[,1,. tI,. !I:t\-. .Jj.\ !.~, " ~ ~ !-'.',:o al~~iliIl7~~1iJiJcil!Wr: _ @[WJ& ~ @[K!]@& SUBJECT: State Conservation Agreements under the Endangered Species Act A. BACKGROUND 1. Two primary purposes of the Endangered Species Act are to provide a program for the conservation of endangered and threatened species and to provide a means for the conservation of the ecosystems upon which those species depend. The Act declares that a key to its success will be encouraging states and other interested parties to develop and maintain conservation programs through financial assistance and incentives. 2. The Act sets out a process for the Secretary of the Interior or the Secretary of Commerce (the Secretary) to determine whether or not a species should be listed as endangered or threatened using the best scientific and commercial data available. The Act requires the Secretary in making this decision to take into consideration the conservation efforts being made by a state or its political subdivisions. 3. 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. As a result, a federal-state partnership is essential and the ESA directs the Secretary to cooperate to the maximum extent practicable with the states in carrying out the program authorized by the Act. 4. The Act has been the most successful on federal lands. Federal agencies are required to conserve threatened and endangered species and to utilize their authorities to carry out the Act's objectives. 5. The Act has been less successful in protecting the majority of species that occur on private land. The primary tool for the federal government on private lands is a regulatory one by which it can prevent landowners from engaging in activities that result in "take" of a listed species. The federal government cannot, however, require individuals to restore watersheds or to actively manage their property to restore declining species. Yet to recover species that are heavily dependent upon private lands, restoration work on these lands and waters may be essential. ESA prohibitions against "take" alone cannot cause recovery of these species nor are they self-implementing. Recovery will only occur if private landowners undertake restoration activities that go well beyond simply avoiding take. 6. Many states recognize that such restoration work can only be achieved by involving the private landowners in the decision-making and providing them with technical assistance, guidance, and resources to support their efforts. As a result, some states are putting together recovery plans for declining species that depend on landowner commitments to address factors of decline that go above and beyond actions required under any baseline of regulation. 7. Currently over 43 state conservation agreements exist and another 20 are being developed. The ESA allows for a species to not be listed when a state conservation agreement addresses and removes the factors that are causing the species' decline. The federal agencies' emergency listing authority is retained. Under state conservation plans, governors have formed coalitions of state, federal, tribal, private and non-profit interests to conserve species through voluntary, but scientifically reviewed, monitored, and reported efforts that federal agencies (National Marine Fisheries Service and the U.S. Fish and Wildlife Service) have determined will conserve the species. Financial and other resources are leveraged that go far above and beyond actions required under a baseline of regulation. States and