TESTIMONY BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ON S.1180, THE ENDANGERED SPECIES RECOVERY ACT OF 1997
by Duane L. Shroufe, Director, Arizona Game and Fish Department
and Immediate Past President, International Association of Fish and Wildlife Agencies

Thank you, Mr. Chairman, for the opportunity to appear before you today to share the perspectives of the International Association of Fish and Wildlife Agencies on S.1180, the Endangered Species Recovery Act of 1997. I am Duane Shroufe, Director of the Arizona Game and Fish Department, and Immediate Past President of the Association, and I would like to commend you, Senator Kempthorne, Senator Baucus, and Senator Reid for your persistence and dedication to producing this bipartisan centrist and consensus proposal on a difficult but extremely important conservation issue. I bring to you today the firm support for S.1180. While this proposal does not have everything we advocated for in an ESA reauthorization bill, the Association believes that S.1180 is a bill that improves the effectiveness of the ESA for both the conservation of fish, wildlife and plant species and with regards to appropriate certainty for the regulated community; it appropriately restores Congress' original intent to respect throughout the Act the concurrent jurisdiction of state fish and wildlife agencies with the US Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) for listed species; restores the focus in the ESA to what we endorse as its most important perspective and that is recovering listed species to a level and vitality where the measures under the Act are no longer necessary; and provides incentives in the form of financial assistance, certainty, and the provision of technical education and assistance to landowners to facilitate their stewardship of their land and associated resources. While we will offer some suggested improvements to S.1180 to sharpen these aspects and will strongly encourage a commitment to securing robust appropriations to implement S.1180, the Association reiterates its firm support of this bill.

The International Association of Fish and Wildlife Agencies was founded in 1902 as a quasi-governmental organization of public agencies charged with the protection and management of North America's fish and wildlife resources. The Association's governmental members include the fish and wildlife agencies of the states, provinces, and federal governments of the U.S., Canada, and Mexico. All 50 states are members. The Association has been a key organization in promoting sound resource management and strengthening federal, state, and private cooperation in protecting and managing fish and wildlife and their habitats in the public interest.

I would like to start by recognizing and thanking the bill sponsors for grounding S.1180 in the collective legislative recommendations from our Association and the Nation's Governors under the leadership of the Western Governors' Association which we shared with you starting in the first session of the last Congress. Governor Racicot has shared with you the process of our consensus building in conjunction with the Administration which culminated in our recommendations, and we sincerely appreciate the validation of our work as reflected in S.1180. We believe you, as did we, recognize that over the 25 years of the ESA, we have a much better understanding of what works under the Act, what doesn't, and how it can be improved. The State fish and wildlife agencies' objectives are fairly straightforward: to successfully carry out our responsibilities as public trust agencies to our citizens to ensure the vitality of our fish and wildlife resources for present and future generations; and to encourage, facilitate and enhance the opportunities, means and methods available to all citizens and especially landowners in our states to contribute to meeting this conservation objective in cooperation with our agencies and our federal counterparts. Much of this involves solving problems and reconciling differences, and we believe S.1180 provides new and useful tools, opportunities and direction to achieve both of these objectives.

Let me first strongly urge Congress and the conservation community to collectively dedicate ourselves to securing the appropriations necessary to fulfill the improvements contained in S.1180. All of these changes will require the additional time and attention of the federal and state fish and wildlife agencies to satisfy these mandates. Additional listing process requirements, public participation, energized recovery plans through implementation agreements, assistance to private landowners and other provisions are significant improvements which need to be adequately funded in order to meet the objectives of S.1180 to improve the effectiveness of the Act in achieving conservation objectives and with regards to appropriate certainty for the regulated community. Therefore, the Association strongly urges that Congress and the conservation community make a commitment to securing the robust appropriations necessary to implement these improvements to the Act.

We firmly believe that reaffirming the role of the State fish and wildlife agencies in all aspects of the ESA reflecting our concurrent jurisdiction over listed species sets the stage for more efficient and effective administration of endangered species programs. The State fish and wildlife agencies have broad statutory responsibility for the conservation of fish and wildlife resources within their borders, including on most Federal public lands. The states are thus legal trustees of these public resources with a responsibility to ensure their vitality and sustainability for present and future citizens of their States. State authority for fish and resident wildlife remains the comprehensive backdrop applicable in the absence of specific, overriding Federal law. As Secretary Babbitt said before this Committee two years ago, "the States are the presumptive front line managers of fish and wildlife within their borders", a perspective with which we fully concur, and which we believe S.1180 reflects.

Also, we believe that the affirmation of the true partnership between the State fish and wildlife agencies and the USFWS and NMFS contemplated in S.1180 will take full advantage of the expertise in fish, wildlife and plant conservation that exists at both the state and federal level, while minimizing duplicative processes and administrative burdens, a relief that we can hardly afford to ignore in these times of constrained natural resources budgets.

We would be happy to work with your staff on the one area where we believe there needs to be enhanced deference to State fish and wildlife conservation responsibility: the review of listing petitions. We would urge you to consider directing the Secretary to give greater weight to the recommendations of the State fish and wildlife agencies than in the existing language, which simply calls for the Secretary to consider the States' recommendations. We believe the State fish and wildlife agencies have experience and expertise that the Secretary should avail himself of as a first level of "peer review" of listing petitions. Our preference is to give favor to the State recommendations in the form of a rebuttable presumption which the Secretary can overturn, but we are also happy to work with staff on other alternatives.

Also, we respectfully bring to your attention other areas where we believe the "in cooperation with the States" construct should appear in the Candidate Conservation and Safe Harbors agreements, and would ask for your consideration of those changes. We will work with your staff on the specifics of these recommendations.

The Association encourages you and staff to accept Governor Racicot's invitation to visit any of our States to experience firsthand the value of preventative conservation measures long before the need to list species (or even designate candidate species) occurs. This just makes good common sense and good biological sense to avoid the crisis of listing. The Association reaffirms its commitment to prudent conservation of fish, wildlife and the natural communities that they depend on, so that the need to impose the rigors of the ESA is minimized. We do not advocate avoiding the application of the Act; rather, we advocate addressing species and habitat declines before a crisis situation is reached. We need, where possible, to anticipate impacts (from development and other projects) on species and habitats, and address those comprehensively, rather than reacting to them.

The ESA can and will play a role in our preventive management programs, but should remain primarily as the necessary tool of last resort for protecting against extirpation. Through the use of preventive management actions, the ESA could then fulfill a more appropriate role of dealing with species undergoing precipitous decline.

Federal and State conservation agencies should cooperate in coordinating the application of the many existing Federal statutes relating to public lands management (NFMA, FLPMA, etc.), habitat conservation (CWA, CAA), and project impact review (NEPA, etc.); comparable State laws (State nongame and endangered species laws; State environmental review statutes and programs); and county and local land use planning ordinances and programs. A more comprehensive integration of the relevant statutes at all levels will enhance their utility for the conservation of fish and wildlife and their habitats, ensure the sustainability of ecological communities, and preclude the need to list species.

Further, there needs to be a major thrust (distinct from ESA reauthorization) to broaden the highly successful user-pay/user-benefit concept under the Pittman-Robertson and Wallop-Breaux programs to meet today's broader conservation challenges, enabling State/Federal programs for the conservation of the vast majority of nongame fish and wildlife currently receiving less than adequate attention, and thereby providing the means to prevent species from becoming endangered. Based programmatically on the highly successful Sportfish and Wildlife Restoration Programs under the Wallop-Breaux and Pittman-Robertson Acts, the Fish and Wildlife Diversity Funding Initiative, "Teaming with Wildlife", supported by the IAFWA and conservation community, by all 50 State fish and wildlife agencies, and by a substantial (over 2300 businesses and organizations) grassroots coalition across the country, is designed to secure permanent, dedicated funding, based on user fees in the form of an excise tax, to provide among other things, the prevention of species becoming endangered, through the provision of routine fish and wildlife management practices. We look forward to visiting with you further on this proposal.

Further, the Association encourages the use of legally binding Conservation Agreements for declining or candidate species in lieu of listing as threatened or endangered, where management actions specified under such an agreement remove the threat(s) to the species, and where the Agreement is enforced. Comprehensive habitat based agreements should be encouraged. Clarification of the Endangered Species Act to support such Conservation Agreements is required and affirmation of State authority for pre-listed species must be legislatively assured. The role of the State fish and wildlife agencies in this process must be affirmed and institutionalized. By requiring the Secretary to concur with State-led conservation agreements involving affected jurisdictional entities and private landowners (where appropriate), the Secretary will be legally shielded from a requirement to impose certain regulatory implications through suspension of the consequences of listing. Private landowners should be given legal assurances that, once they commit to certain responsibilities under the agreement, no additional liabilities under Section 9 will be imposed upon them. The incentive for Federal agencies to participate is that they obviously incur no liability under Section 7 if actions to recover declining species are taken prior to listing. This provision is detailed further in the legislative recommendations from the WGA/IAFWA/NGA, and we look forward to continuing to represent to you the merits of such a proposal through a review of on-the-ground successes.

The Association applauds and fully supports your efforts in S.1180 to energize recovery plans through implementation agreements to restore the focus in the ESA to not just listing species, but to carrying out actions that restore species and habitat to a sustainability level where the measures under the Act are no longer necessary. As S.1180 provides, State fish and wildlife agencies must be given the opportunity to take the lead on recovery plans. The utility of a team approach not only provides for application of a broad base of knowledge and perspectives, but also better intergovernmental coordination regarding biological, social, economic and environmental factors. State fish and wildlife agency lead or affirmed participation brings in experience in working with both private landowners and local land use regulatory agencies (county Planning and Zoning agencies, for example) both of which are vital to the success of recovery programs.

Finally, we fully support the provisions of financial assistance, regulatory certainty, and education for private landowners in S.1180. The provision of incentives seems to be an area of general agreement on which most parties can agree. As you are aware, Mr. Chairman, the "no surprises", "safe harbors", and "candidate conservation agreements" policies were contained in Secretary Babbitt's March 1995 ten-point policy articulation of administrative improvements to the ESA. The Association heartily supported that proposal, and participated in the consensus building between the States and the Department of the Interior, which culminated in the Secretary's policy. The Association supports the codification of these policies in statute to affirm the Secretary's authority in offering and implementing these policies.

Thank you for the opportunity to share the Association's firm support for and perspectives on S.1180, and I would be pleased to address any questions you might have.