TESTIMONY: Modernization of the Endangered Species Act

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Testimony of James D. Ogsbury
Executive Director
Western Governors’ Association

Before the United States Senate Committee on Environment and Public Works

Oversight:  Modernization of the Endangered Species Act
Feb. 15, 2017

Chairman Barrasso, Ranking Member Carper, and members of the Committee, Western Governors appreciate the opportunity to provide written testimony on the issue of species conservation and the Endangered Species Act (ESA). These remarks are presented by the Western Governors’ Association (WGA), an independent, non-partisan organization representing the Governors of 19 western states and three U.S.-flag islands.


Western Governors applaud the principles and intent of the ESA.  Since its enactment in 1973, the ESA has helped prevent the extinction and assisted the recovery of threatened and endangered species, while providing ancillary benefits to other species.  We believe that there is much to learn from both the successes and the failures of the Act.

Western states are particularly and uniquely affected by the ESA, and they contain the vast majority of ESA critical habitat designations made by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services). The economic benefits derived from tourism and recreation supported by healthy species and ecosystems redound largely to states. At the same time, species listings and the associated prohibitions can negatively affect western states’ ability to promote economic development, accommodate population growth, and maintain and expand infrastructure. The economic costs of ESA compliance can fall disproportionately on western states and local communities.

The ESA is premised on a strong state-federal- partnership. Section 6(a) of the ESA states that, “in carrying out the program authorized by the Act, the Secretary shall cooperate to the maximum extent practicable with the States.” Western Governors submit that such cooperation should involve full and authentic partnership between the states and Services with respect to species listing, critical habitat designations, establishment of recovery goals and delisting decisions.  

Through decades of work by staff and contractors, states have developed extensive science, expertise and knowledge of species within their borders. In many cases, state wildlife agencies often possess the best available science on species and retain primary management authority over most fish and wildlife within their borders.

Experts, observers and wildlife managers acknowledge that, in the 44 years since the passage of the ESA, changes to the Act are warranted. Regardless, proposed amendments to the Act are frequently opposed on the basis that any change represents a first step toward dismantling the ESA. Through the Species Conservation and ESA Initiative (Initiative), Western Governors have taken a significant step towards changing that narrative and will continue to advance common-sense reforms in the years to come.

As former Chairman of WGA, Wyoming Governor Matt Mead launched the Initiative in June 2015. This multi-faceted effort has included numerous public workshops, focused work sessions, webinars and survey instruments to collect the best ideas, recommendations and thoughts of a wide variety of stakeholders. Principal goals of this effort are to create a mechanism for states to share best practices in species management, promote the role of states in species conservation and explore options for improving the efficacy of the ESA.  The Initiative has also focused on how to avoid the need to list species in the first place, through establishment of institutional frameworks that encourage collaborative voluntary conservation.

Western Governors’ Association Policy

WGA’s successful effort to manage an inclusive and bipartisan dialogue in the first year of the Initiative culminated in the adoption of WGA Policy Resolution 2016-08: Species Conservation and the Endangered Species Act. We hope the principles that Western Governors have embraced on a bipartisan basis will help to inform your own deliberations on possible changes to the ESA.

In this resolution, Western Governors suggest seven broad goals as a basis for any bipartisan reform effort. We would stress that these goals must be achieved in a manner that maintains the Act’s integrity and original intent to protect listed species.  Implementation of these goals will improve the efficacy of the ESA by making it more workable and understandable.

As directed by the resolution, the Initiative is continuing with a series of in-depth work sessions and webinars. Work sessions are primarily constructed to refine the Governors’ policy recommendations and address challenges identified in the first year of the Initiative.  We would like to highlight the Western Governors’ Species Conservation and ESA Initiative Year Two Work Plan as further evidence of Governors’ ongoing commitment to implementing their ESA-related recommendations.

WGA would also like to highlight the efforts Western Governors have made to promote positive administrative changes to the ESA regulatory process. Western Governors have provided comments on several recent rulemakings, and I am pleased to submit such comments as concern:

  • Revisions to the Regulations for Petitions
  • Endangered Species Act Compensatory Mitigation Policy
  • FWS Methodology for Prioritizing Status Reviews
  • Proposed Changes to Critical Habitat Designation (encompassing two rules and one policy)

Western Governors recognize the value of the Services’ engagement in the Initiative.  Governors are hopeful that this positive engagement will help ensure that state considerations are reflected in federal agency rulemaking and policies. Governors also recognize the limitations of regulatory reform. Regulations are not statutes and do not provide the certainty and consistency that statutory changes would produce.  


Western Governors appreciate this opportunity to discuss species conservation, the role of states in this endeavor, and the impact the ESA has on state conservation efforts.  Having worked diligently for many years on species conservation on a bipartisan basis, most recently through the Initiative, Western Governors recognize that much can be accomplished by collaborating with the Services to enact administrative changes to the Act. Further, we assert that the ESA should be reauthorized through bipartisan legislation that maintains the intent of the ESA to conserve and recover imperiled species. Western Governors hope that their contributions will help improve the Act’s operation and its outcomes for imperiled species. Thank you.

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