Testimony of Governor Marc Racicot (MT)
S. 1180 -- The Endangered Species Recovery Act of 1997
on Behalf of the National Governors' Association
and the Western Governors' Association

1. Appreciation and Representation (WGA/NGA)

Mr. Chairman, Senator Baucus, Members of the Committee. My name is Marc Racicot, Governor of the State of Montana. I am here today representing the Western Governors' Association (WGA) and the National Governors' Association (NGA). I also serve as the vice-chairman of the NGA Natural Resources Committee. I appreciate the opportunity to talk with you about the Governors' perspectives on this unique legislation and its impact on our efforts to protect the nation's conservation resources.

2. Commendation and History of Governors' Involvement

We support the consensus, bipartisan approach and recommend you move the bill forward. You have made major progress in this bill. We know it is a delicate consensus that has produced the provisions of S.1180. The Western Governors know well what you and your staffs have endured to reach this point. We started a similar debate in the early years of this decade. As a group we had never experienced a more acrimonious debate - so acrimonious in fact that we had to initially back off our attempt. However, with the leadership of Montana's Governor Stan Stephens on one side of the debate and Idaho's Governor Cecil Andrus on the other, the Governors became convinced that the only way the Endangered Species Act (ESA) could be improved was through a consensus process. That leadership and and that consensus resulted in an outstanding proposal which would strengthen the role of states, streamline the Act, and provide increased certainty and assistance for landowners and water users while at the same time enhancing its conservation objectives. The consensus has since been endorsed by the Western Governors Association, the National Governors Association and the 50 state fish and wildlife agencies through their International Association of Fish and Wildlife Agencies. It was forwarded to you first in the form of legislative principles in 1993 and then in legislative language in September 1995.

3. Substantive Comments on S. 1180

The consensus principles that the Western Governors' Association and National Governors' Association developed on ESA reform are reflected in S. 1180. While none of our members would draft the bill in this exact form, it deserves our active support. Because such consensus on both our parts was difficult and hard fought, it is worth a few minutes to outline here those areas in which we do agree in substance and which we encourage you to retain in the bill and to work with us as you move toward conference committee consideration:

A.) A greater State role has been acknowledged in recovery planning, and the bill reflects the strong intent to make states partners in achieving the objectives of the Act by inclusion of language calling for "in cooperation with the States"in the major sections of the Act as well as a strong definition of what that is to entail. (As a technical point, we suggest the committee may have inadvertently missed inserting that phrase in the sections on Safe Harbor, Candidate Conservation Agreements, Section 7, and Implementation Agreements.);

B.) Inclusion of strong incentives for private landowners like Safe Harbor and No Surprises, Habitat Conservation Planning Fund, technical assistance to enable landowners and water users to be true partners in reversing the decline of species and their habitat, and, in the companion bill, tax incentives for land owners;

C.) Peer review of listing decisions;

D.) Greatly enhanced public comment and involvement in all aspects of the Act;

E.) Elevating the Recovery of Species to a central focus of the Act and the incorporation of Implementation Agreements with federal agencies and other entities to ensure that recovery plans are not only comprehensive and inclusive in their effort to conserve species, but also carried out;

F.) Multispecies Habitat Conservation Plans and a Streamlined HCP process for small landowners with small impacts;

G.) Designation of critical habitat at recovery planning stage where it is most sensible and practical;

H.) Increase rigor in the listing process; and

I.) Increased funding authorization to carry out the new and expanded requirements of the Act.

As I'm sure you can appreciate, there were issues upon which the Governors could not reach consensus - areas which I know caused you difficulty as well: water rights, Section 7, and a narrower definition of "take". Each Governor is working on those particular issues from the unique perspectives of their states and their needs. However, just as the Governors were able to move ahead and reach overall consensus, we are encouraged that this Committee did the same. We strongly encourage you to retain the consensus you have reached and to move ahead with this legislation. The vital natural resources which we all wish to see sustained and conserved depend upon the incentives, the streamlining and the acknowledgment of partnership that are integral to this legislation.

I want to note that you were able to reach consensus on Section 7 which eluded us in our deliberations. The Governors cannot specifically endorse that consensus because it is beyond the scope of our own agreement, but we encourage you to keep up your effort.

There were also four areas in which the Governors did reach consensus and on which you did not. We believe they would be very important and effective additions to your legislation. We understand that you have a consensus bill here and that you need to move it basically intact, so we request the opportunity to work with you and all the parties that are necessary to consensus prior to conference to try to meld in these four areas of gubernatorial consensus: State-initiated Conservation Agreements, adequate funding, a more rigorous and less costly delisting process, and reconfirmation of the intent of Congress to have a statutory and regulatory distinction between a species listed under the Act as threatened or as endangered.

I would like to highlight the most critical of those four for you. In my state, we have pulled together a broad-based group representing the major stakeholders with an interest in Bull Trout conservation. This Bull Trout Restoration Team has been working to develop a conservation plan for this candidate species which would provide the basis for conservation and recovery. The type of agreements we can forge and the flexibility we need to forge those agreements are possible with a candidate species, but next to impossible if listing were to occur under the ESA. Yet, litigation and the deadline triggered by that petition is forcing the Fish and Wildlife Service toward that very listing - to the detriment, we believe, of our cooperative efforts and the Bull Trout.

At the heart of our recommendations is preventative conservation and that is why our states are actively engaged in developing conservation plans to restore declining species before they need the protections of the Act. Your bill provides for Candidate Conservation Agreements under Section 10 of the Act and that is a step in the right direction. However, human nature makes it difficult for most of us to notice the gradual loss in the number and habitat of species. We often need a wake up call, especially to mobilize resources on a large scale. Unfortunately the alarm is often a petition to list a species, which triggers a listing deadline that often can not be met in time as is likely to occur with the Bull Trout. If the petition has merit, the listing needs to proceed in order to bring the protections of the Act into play. The listing forces federal agencies to consult on actions that may affect the species, yet the listing brings less protection to the majority of species using private lands. While your bill will make it more likely that individual land owners and water users will become partners in conservation, all federal and state officials know that a listing chills voluntary efforts to conserve species on private lands.

This is why my colleagues and I urge you incorporate state-initiated conservation agreements under Section 4 of the Act into your bill. Under these agreements a listing would proceed. However, if an agreement was close to being implemented, the effects of the Act would be suspended for the state or states where they were being developed or, if later, once the agreements were implemented. If the effort falters or if the parties do not fulfill their obligations, then the full effect of the listing would be triggered. That threat in fact is a spur to action.

The benefits can be enormous. A governor can use the wake-up call to rally a coalition of state, federal, private and non-profit interests to conserve species through voluntary, but scientifically reviewed, monitored and reported, efforts. The financial and other resources of the parties are leveraged that would otherwise be scattered by the listing. More importantly, threats to the species are addressed and efforts are mobilized to remove the need to list the species. If all goes well, this could be accomplished in nearly the time that the Secretary takes to determine whether or not to list the species. Without such agreements, it would take two additional years to develop a Recovery Plan and additional time to fully implement recovery agreements. Also, states and their communities can retain control over their destiny instead of the courts; large political capital is expended and conservation is made a clear priority. Additional safeguards also exist: the Secretary must concur that the agreements will conserve the species and the Secretary's emergency listing authority remains in place.

The recent Oregon Coastal Coho Restoration Plan in which Governor Kitzhaber has leveraged $15 million in state and private funds and the current collaborative effort of the governors of Washington, Oregon, Idaho, and California to conserve the steelhead trout are examples of the energy and leadership that exists among the Nation's governors. Other such examples include the recent conservation agreement in Kentucky, Illinois, and Indiana to conserve the Copperbelly Water Snake, and in Texas to conserve the Barton Springs Salamander.

My colleagues in Oregon and Texas invite the members of your committee and the House Resources Committee and staff and other interested groups to visit them and see how these Conservation Agreements work on the ground. Naturally, Montana or any other

state in the West would be pleased to act as host as well. We encourage you to accept this invitation and learn why incorporation of State-initiated Conservation Agreement language in your legislation is so critical to species conservation and to getting active, early state participation.

Inadequate funding has been a major impediment to the success of the ESA and to the public's support of the Act. Funding must match the design of a reauthorized Act with its increased role for the states, its incentives and assistance for private landowners, and its emphasis on recovery. Without adequate funding, burdens are unfairly placed on local communities and owners of private property. We are pleased that the bill doubles the authorization for carrying out the Act, but we note that the funding must be stable and actually appropriated. If a stable funding source can not be found, then we suggest that the bill establish a national task force composed of federal, state, local representatives and the general public to identify creative and equitable funding strategies.

We encourage your consideration of a change very high on the priority list of the Governors. That in the listing process, there be a rebuttable presumption that the state assessment is accurate when the Secretary is making the final listing determination. Very, very often listing is based on incomplete science and conclusions not supported by the evidence. Despite the improvements in S.1180 regarding the listing process, it does not provide for those circumstances when data is sketchy or unavailable - the instances which are causing poor listing decisions under the current Act.

The bill provides for an effective trigger to initiate the delisting process when recovery goals have been met. But the cost, complexity and probability of delisting will remain unless an alternative to use of the Section 4(a) criteria - in reverse - is developed. The Governors advocate a simplified process utilizing rule making that would take advantage of the wealth of information and progress already made through accomplishment of the recovery goals. As the Governor of the state of Montana, I also strongly encourage the Committee to consider including provisions whereby delisting could occur by state boundaries or other boundaries based on standards and criteria developed by the Secretary in cooperation with the states. This is particularly important as flexibility to list a species more precisely based on existing efforts have not been incorporated. We all agree that incentives to private landowners are important. This is one incentive that is imperative to state involvement so that good efforts will be rewarded without being held hostage to efforts by others.

Congress originally intended but court cases and rule making have completely blurred, a distinction between a "threatened" and an "endangered" species. Such a distinction also provides incentives for states and private landowners to work to down-list a species to take advantage of increased flexibility and greater management freedoms. We strongly encourage you to reconfirm the listing distinction originally included in the Act.

Thank you very much for the opportunity to provide these written comments on behalf of the nation's Governors. Please contact my office or the Western Governors Association if we can provide any additional clarification or detail about our testimony.