September 20, 2020

Feds Ensure States Understand They Have No Authority in ESA Rules

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SUMMARY: The Fish and Wildlife Service and National Marine Fisheries 
Service announce an interagency policy to clarify the role of State 
agencies in activities undertaken by the Services under authority of 
the Endangered Species Act of 1973, as amended, and associated 
regulations. The policy, which is a revision of a policy issued in 
1994, reflects a renewed commitment by the Services and State fish and 
wildlife agencies to work together in conserving America's imperiled 
wildlife.

DATES: February 22, 2016.

FOR FURTHER INFORMATION CONTACT: Gary Frazer, Assistant Director for 
Ecological Services, U.S. Fish and Wildlife Service, 18th and C Streets 
NW., Washington, DC 20240; telephone 202/208-4646; facsimile 703/358-
5618, or Angela Somma, Chief, Endangered Species Division, National 
Marine Fisheries Service, 1355 East-West Highway, Silver Spring, 
Maryland 20910; telephone 301/427-8403; facsimile 301/713-0376. If you 
use a telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Congress enacted the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.) (ESA or Act), to establish a program for the 
conservation of endangered and threatened species and the ecosystems on 
which they depend. The Secretaries of the Interior and Commerce 
(hereafter referred to as ``the Secretaries'') have the responsibility 
for administering the ESA. The Secretaries have delegated this 
responsibility to the U.S. Fish and Wildlife Service of the Department 
of the Interior and the National Marine Fisheries Service of the 
Department of Commerce (hereafter referred to as ``the Services'').
    The Services recognize that, in the exercise of their general 
governmental powers, States possess broad trustee and police powers 
over fish, wildlife, and plants and their habitats within their 
borders. Unless preempted by Federal authority, States possess primary 
authority and responsibility for protection and management of fish, 
wildlife, and plants and their habitats.
    State agencies often possess scientific data and valuable expertise 
on the status and distribution of endangered, threatened, and candidate 
species of wildlife and plants. State agencies, because of their 
authorities and their close working relationships with local 
governments and landowners, are in a unique position to assist the 
Services in implementing all aspects of the Act. In this regard, 
section 6 of the Act provides that the Services shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. The term State agency means any State agency, 
department, board, commission, or other governmental entity that is 
responsible for the management and conservation of fish, plant, or 
wildlife resources within a State.

State Involvement

    In 1994, the Services published a policy regarding the role of 
State fish and wildlife agencies in implementing the ESA (59 FR 34275; 
July 1, 1994). That policy has been available on the Services' Web 
sites. We are now updating and revising that policy. The updated 
policy, developed in coordination with the State fish and wildlife 
agencies, reaffirms the commitment for engagement and collaboration 
between the Services and State fish and wildlife agencies on many 
aspects of ESA implementation, with the understanding that this 
collaboration is undertaken in the context of the ESA's statutory 
timelines.
    The revised policy reflects a renewed commitment by the Services 
and State fish and wildlife agencies to work together in conserving 
America's imperiled wildlife. The revised policy also references the 
suite of ESA conservation tools not available or in common use when the 
policy was originally developed in 1994. These tools include Habitat 
Conservation Plans, Candidate Conservation Agreements with Assurances, 
and Safe Harbor Agreements. All of these tools are set forth in 
regulations in title 50 of the Code of Federal Regulations in part 17.
    Changes to the policy include more proactive conservation of 
imperiled species before they require protections of the ESA, expanded 
opportunities for engagement on listing and recovery activities, and 
improved planning with State agencies across a species' range. The 
revised policy follows:

Policy Regarding the Role of State Agencies in Endangered Species Act 
Activities

    Section 6 of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.) (ESA), directs the Secretaries of the Interior and 
Commerce to cooperate to the maximum extent practicable with the States 
in carrying out ESA programs. In furtherance of this provision of the 
law, it is the policy of the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service to involve State agencies as 
described in the items listed below for the following ESA activities:

A. Prelisting Conservation

    1. Use the expertise and solicit the information of State agencies 
in determining which species should be included on the list of 
candidate animal and plant species.
    2. Use the expertise and solicit the information of State agencies 
in conducting population status inventories and geographical 
distribution surveys to determine which species warrant listing.
    3. Use the expertise of State agencies in designing and 
implementing prelisting stabilization actions, consistent with their 
authorities, for species and habitat to remove or alleviate threats so 
that the listing priority is reduced or listing as endangered or 
threatened is not warranted. Encourage collaborative conservation 
planning with State agencies across the range of a species, including, 
as appropriate, through State Wildlife Action Plans, and work 
collaboratively with State agencies to facilitate voluntary 
conservation actions on behalf of species before they reach the point 
at which they need to be listed as threatened or endangered under the 
Act.
    4. Work collaboratively with State agencies to design and encourage 
the use of Candidate Conservation Agreements with Assurances to provide 
non-Federal landowners with incentives for engaging in voluntary 
proactive conservation of species that are candidates for listing under 
the Act.

B. Listing

    1. Use the expertise of, and coordinate and collaborate with, State 
agencies in developing the scientific foundation upon which the 
Services base their determinations for listing actions, including: 12-
month petition findings; proposed and final listing rules; section 4(d) 
rules that specify the prohibitions necessary and advisable for the 
conservation of species listed as threatened; proposed and final 
critical habitat designations; and proposed and final rules to change 
the status of a species from endangered to threatened (or vice versa) 
or to remove a species from the list.
    2. Provide notification to State agencies of any proposed 
regulation in accordance with provisions of the Act and coordinate with 
State agencies in developing any work plans for future listing 
activities.

C. Consultation

    1. Inform State agencies of any Federal agency action that is 
likely to adversely affect listed species or designated critical 
habitat, or that is likely to adversely affect species proposed for 
listing or proposed critical habitat, and request relevant information 
from them, including the results of any related studies, in analyzing 
the effects of the action and cumulative effects on the species and 
habitat.
    2. Request an information update from State agencies prior to 
preparing the final biological opinion to ensure that the findings and 
recommendations are based on the best scientific and commercial data 
available.
    3. Recommend to Federal agencies that they provide State agencies 
with copies of the final biological opinion unless the information 
related to the consultation is protected by national security 
classification or is confidential business information. Decisions to 
release such classified or confidential business information shall 
follow the action agency's procedures. Biological opinions not 
containing such classified or confidential business information will be 
provided to the State agencies by the Services, if not provided by the 
action agency, after 10 working days. The exception to this waiting 
period allows simultaneous provision of copies when there is a joint 
Federal-State consultation action.

D. Habitat Conservation Planning

    1. Use the expertise and solicit the information and participation 
of State agencies in all aspects of the habitat conservation planning 
process.
    2. Work collaboratively with State agencies to the maximum extent 
practicable to advance efficiency and avoid duplication of effort when 
the Services and the States both have similar authority for permitting 
activities related to threatened and endangered species.

E. Recovery

    1. Use the expertise and solicit the information and participation 
of State agencies in all aspects of the recovery planning process for 
all species under their jurisdiction.
    2. Use the expertise and solicit the information and participation 
of State agencies in implementing recovery plans for listed species. 
State agencies have the capabilities to carry out many of the actions 
identified in recovery plans and are in an excellent position to do so 
because of their close working relationships with local governments and 
landowners.
    3. Recognize and use the expertise and authority of State agencies 
in designing and implementing monitoring programs for species that have 
been removed from the Lists of Endangered and Threatened Wildlife and 
Plants. Unless preempted by Federal authority (e.g., Marine Mammal 
Protection Act, Bald and Golden Eagle Protection Act), States possess 
primary authority and responsibility for protection and management of 
fish, wildlife, and plants and their habitats, and are in an excellent position to provide for the conservation of these species 
following their removal from the lists.
    4. Work collaboratively with State agencies to design and encourage 
the use of Safe Harbor Agreements to assist in recovery of listed 
species.

Authors

    The primary authors of this draft policy are the staff members of 
the Ecological Services Program, U.S. Fish and Wildlife Service, 5275 
Leesburg Pike, Falls Church, VA 22041 and staff members of the 
Endangered Species Division, National Marine Fisheries Service, 1355 
East-West Highway, Silver Spring, Maryland 20910.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).
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