COMMENTS: Use of state data and expertise in ESA listing methodology

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February 16, 2016

Mr. Douglas Krofta
United States Fish and Wildlife Service
Division of Conservation and Classification
5275 Leesburg Pike
Falls Church, VA 22041-3803

Re: Docket FWS-HQ-ES-2015-0169

Dear Mr. Krofta:

The Western Governors’ Association (WGA) appreciates the opportunity to provide comments on the United States Fish and Wildlife Service’s (FWS) proposed methodology for prioritizing status reviews and accompanying 12-month findings on petitions for listing species under the Endangered Species Act (ESA) [81 FR 2229, January 15, 2016].


WGA represents the Governors of 19 western states and 3 U.S.-flag islands. The association is an instrument of the Governors for bipartisan policy development, information exchange and collective action on issues of critical importance to the western United States.

States have primacy over fish, wildlife and water within their borders. They have developed a tremendous body of science and expertise on these resources. States conduct research and on-the-ground analysis of species’ status. States adopt policies and take steps to prevent species from becoming imperiled. Western Governors support voluntary proactive conservation measures and, in many cases, actively implement conservation measures in concert with local governments and private parties to aid the recovery of at-risk-species.

Governors recognize the important role of FWS in administering the petition process under the Endangered Species Act. Governors appreciate the recent efforts by FWS and the National Marine Fisheries Service (NMFS) to initiate a rulemaking to clarify the petition submission process and enhance the role of states in the process. The proposed rule notes that states have substantial expertise, and information relevant to species conservation and that states are generally responsible for species management unless the species is federally listed. Accordingly, the FWS should utilize state data and expertise in conducting status reviews and 12-month findings on petitions for listing species under the ESA.

ESA Section 6 requires the Services to cooperate with states to the maximum extent practicable in implementing the Act. States should be full partners in listing, recovery and delisting decisions. Additionally, Governors encourage federal agencies to use sound science in ESA decisions with state fish and wildlife data and analyses as principal sources in species status assessments and listing decisions. WGA Policy Resolutions 13-08: Endangered Species Act, 14-11: Species of Concern and Candidate Species, 14-14: State Wildlife Science, Data and Analysis, and 14-09: Respecting State Authority and Expertise memorialize WGA positions.


The FWS proposes five categories to better identify and prioritize pending status reviews and accompanying 12-month findings on petitions for listing species under the ESA.

Available State Data

In situations where the FWS does not have adequate data to support assigning an action the correct priority, the FWS proposes to consult with state fish and wildlife agencies. These agencies have management responsibility for petitioned species or relevant scientific data. Western Governors urge the use of state data in status reviews and accompanying 12-month findings. This state data should, however, be a principal source and not limited to instances where the FWS is lacking complete data.

Highest Priority – Critically Imperiled

The FWS states that the highest priority will be given to species experiencing severe threat levels across a majority of their ranges, resulting in severe population-level impacts. Western Governors encourage the FWS to add certainty to definitions by clarifying currently ambiguous terms. These include: “severe threat levels,” “severe population-level impacts,” and “majority of its range.”

Conservation Opportunities in Development or Underway

The FWS states that a species receiving the fourth highest priority must have conservation efforts organized, underway, and likely to address the threats to the species. Western Governors applaud the recognition of voluntary proactive conservation in the status review process, but urge the FWS to move this to the fifth highest priority to allow full consideration of voluntary conservation measures. Voluntary conservation programs must be provided adequate time to fully develop and subsequently implement conservation measures on-the-ground to be successful.

Limited Data Currently Available

The draft methodology states, “Species for which we know almost nothing about its threats or status will be given fifth highest priority.” Western Governors urge the FWS to strike priority bin five from its Draft Methodology. The FWS should not be conducting 12-month findings or status reviews for species with almost no data. The ESA requires the FWS to conduct a 12-month status review if “substantial” information shows that a listing “may be warranted.” If the FWS knows “almost nothing” about the threats to or status of a species, the petition would not reach the “substantial” information bar necessary to initiate a 12-month finding. Therefore, priority bin five is unnecessary.


Western Governors support the FWS work to refine the ESA status review process. They appreciate the ongoing partnership of the FWS in the Western Governors’ Species Conservation and Endangered Species Act Initiative. Western Governors look forward to the continuing to work with FWS to identify common sense improvements to make the ESA function better for species.


Matthew H. Mead
Governor of Wyoming
Chairman, WGA

Steve Bullock
Governor of Montana
Vice Chair, WGA

cc: Honorable Sally Jewell, Secretary, U.S. Department of the Interior
Dan Ashe, Director, U.S. Fish and Wildlife Service
Gary Frazer, Assistant Director for Endangered Species, U.S. Fish and Wildlife Service

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