Endangered Species Law & Policy

The most comprehensive Endangered Species Act (ESA) bill of this Congressional session made its debut on July 2, 2018 when Senator John Barrasso (R-Wyo.), Chairman of the Senate Environment and Public Works (EPW) Committee, released a discussion draft of a bill proposing sweeping revisions to the ESA.  The discussion draft is a culmination of activity that began February 15, 2017, when the EPW committee held an oversight hearing on modernization of the ESA. Following that hearing, Senator Barrasso worked closely with the Western Governors’ Association (WGA) in drafting the discussion draft bill.  In keeping with WGA’s push for more state involvement in endangered species conservation decisions, the draft bill increases the role of state governments in implementing the ESA.  Barrasso plans to hold a hearing on the discussion draft in the coming weeks.

The discussion draft includes numerous ESA amendments, a few of which are summarized below:

• Best scientific and commercial data available: The draft bill provides a definition for the best scientific and commercial data available and a policy relating to how it may be used in ESA decision-making.
• Species recovery: The draft bill includes the concept of recovery teams that may be formed at the request of an affected state at the time a species is listed. The proposal states that recovery team members are to be appointed by the Secretary of the Interior and would include representatives of federal, state, and local agencies, and scientific experts with respect to the species at issue.  The proposal would allow recovery teams to modify a recovery goal, habitat objective, or other criterion established for a species by a unanimous vote, provided that the Department of Interior approves of the change.  Where there is no recovery team for a listed species, under the proposed amendments, an eligible state agency could develop a species recovery plan in consultation with all other impacted states.  Eligible states would also be allowed to implement recovery plans.
• Listings: The draft bill codifies U.S. Fish and Wildlife Service’s National Listing Workplan (Workplan) and requires that the Workplan be included in the annual budget request to Congress.  The draft bill would also impose  prioritization and timing requirements for species included in the Workplan.
• Delistings: The draft bill would prohibit judicial review of species delisting/downlisting decisions until the expiration of a 5-year monitoring period following delisting/downlisting decision.
• States feedback: The draft bill includes an annual solicitation of feedback from each state regarding U.S. Fish and Wildlife Service’s performance, including performance of individual Service employees.
• Citizen suits: The draft bill requires inclusion of impacted states (including each unit of local government) in citizen suit settlement negotiations and agreements.  The draft bill also favors third parties intervening in citizen suits, by creating a rebuttable presumption that third parties should be allowed to intervene.  It would also permit intervening third parties to participate in settlement discussions.  The draft bill would require public disclosure of any plaintiffs’ attorneys’ fees paid by the government.
• Voluntary conservation efforts: The draft bill contains provisions that would expand the role of and expedite approvals of voluntary conservation efforts, including Candidate Conservation Agreements with Assurances and Safe Harbor Agreements.