State Endangered Species Conservation and Coordination Act Exposed

The State Endangered Species Conservation and Coordination Act is a draft model bill considered by ALEC's Energy, Environment and Agriculture Task Force at the States and Nation Policy Summit on December 5, 2014. Due to incomplete information, it is not known if the bill passed in a vote by legislators and lobbyists at an ALEC task force meeting or if key operative language from the bill has been introduced by an ALEC legislator during a legislative session. The bill language below is from a ALEC 35-day mailer, available here.

ALEC Bill Text

Section 1. {Long Title}

An act relating to states balancing the conservation of imperiled species, as it relates to the Endangered Species Act, with the economic and financial well-being of {state} and its citizens.

Section 2. {Purpose}

The purpose of this Act is to:

1. Establish a mechanism for {state} to create an interagency task force on endangered species and economic growth for the purpose of providing information and direction regarding endangered species issues in certain areas of the state;

2. Establish a mechanism for {state} agencies to provide policy and technical assistance regarding compliance with endangered species laws and regulations to local and regional governmental entities and their communities engaged in economic development activities so that compliance with endangered species laws and regulations is as effective and cost-efficient as possible;

3. Establish a mechanism for {state} to fund and coordinate high quality scientific research on species that are already protected or may be protected under endangered species laws and regulations;

4. Encourage {state} to use the authority under this Act to develop conservation plans for species that are protected or may be protected under endangered species laws and regulations so that such plans will help {state} to comply with endangered species laws and policies in the most effective and cost-efficient method possible; and

5. Establish a mechanism by which {state} can protect the confidentiality of property owners who voluntarily consent to have their property surveyed for endangered or potentially endangered species, or who voluntarily consent to participate in a conservation plan, or both.

Section 3. {Definitions}

1. “Endangered Species Act” or “ESA” means the federal Endangered Species Act of 1973 (16 U.S.C. Section 1531 et seq.).

2. “Endangered species” means any endangered, threatened, proposed or candidate species under the Endangered Species Act.

3. “Task force” means the interagency task force on endangered species and economic growth created by this Act.

4. “Research” means scientifically valid research on species that are already protected under the Endangered Species Act or potentially could be protected.

5. “Advisory Committee” means a body appointed by the task force presiding officer to assist the task force to fulfill its duties and responsibilities.

6. “Conservation plan” means species conservation plans that promote compliance with federal law protecting endangered species, species proposed for listing, and candidate species in a manner consistent with {state’s} economic development and fiscal stability.

7. “Confidential information” means any data collected about landowner, species and property location from a private landowner by a state or municipal agency in the furtherance of the roles, responsibilities and duties of the task force.

8. “State agency” means any state agency, authority or body that is created and authorized by the {state} legislature

Section 4. {Creation of Task Force}

1. The task force on endangered species and economic growth is created and composed of:

a. The head of a state agency that has as its mandate the economic and financial well-being of a state;

b. The head of the state agriculture agency;

c. The head of state wildlife agency;

d. The head of the transportation agency; and

e. The head of the state soil and water conservation agency, or other such similar agency.

2. The presiding officer of the task force shall be the head of the state agency that has as its mandate the economic and financial well-being of the state.

3. The task force shall meet as often as necessary to fulfill its duties under this act.

4. New members may be added to the task force by the unanimous consent of the existing members.

Section 5. {Task Force Functions and Duties}

1. The task force shall:

a. Assess the economic impact on {state} of federal, state, and local regulations relating to endangered species;

b. Assist landowners and other persons in {state} to identify, evaluate, and implement cost-effective strategies for mitigating impacts to and recovery of endangered species that are consistent with economic growth and development in {state};

c. Develop and manage a website administered and controlled by the state agency that has as its head the presiding officer of the task force. The purpose of the website is to serve as a clearinghouse for information and data that can include, but is not limited to, species that are currently and potentially protected under the Endangered Species Act, basic “how to” information to help citizens understand,

cope with and respond to the Endangered Species Act, relevant news and updates, reports, links to important information and resources, information about the task force and its activities, and ongoing information about conservation plans;

d. Facilitate state and local governmental efforts to implement endangered species regulations in a cost-effective manner;

e. Oversee the development of high quality research on priority species that is acceptable and usable by the U.S. Fish & Wildlife Service or National Marine Fisheries Service in their Endangered Species Act listing decisions, with particular emphasis on; preventing species from being listed, supporting the use of conservation plans for listed and potentially listed species, providing high quality data so more informed decisions can be made regarding conservation and economic activities, and removing, or delisting, species from protection of the Endangered Species Act.

i. Should state funds be made available for research, the state agency of the task force’s presiding officer shall be responsible for controlling, administering and overseeing the use of these funds.

ii. The presiding officer of the task force may enter into interagency contracts, after appropriate coordination which may include using advisory committees, with state public universities with demonstrated experience in species or habitat research, evaluation, and analysis to conduct research studies on species of interest, including candidate, proposed, threatened, or endangered species and appropriate contract administration.

iii. The organizational framework for the development of species research consists of various working groups and bodies, all of which report directly to the Certified Public Accountant (CPA), who is appointed by the presiding officer of the Task Force, with their findings and

recommendations. Species research may consist of the following working groups:

1. Science Working Group

a. Purpose: to identify and prioritize species for research using selection criteria

b. The selection criteria are:

i. potential economic impacts

ii. gaps in species data

iii. timing based on expected federal actions.

c. Science Working Group to be selected by CPA

2. Economic Impact Working Group

a. Purpose: Provide input on current and future economic activity and potential impacts from species listings in {state} to be used by the Science Working Group.

b. Economic Impact Working Group to be selected by CPA but composed of:

i. Economists and qualified representatives from affected industries

3. Scoring Working Group

a. Purpose: Evaluate and score the proposals submitted in response to RFPs (requests for proposals for species research)

b. Scoring Working Group to be selected by CPA but composed of:

i. Scientists from {state} or out of state universities, nonprofit organizations or state/federal agencies. Science Working Group may provide recommendations to Scoring Working Group.

c. Species specific teams may also be appointed by the CPA. Such teams shall include scientists that have expertise with specific species. Such teams may:

i. assist Scoring Working Group with RFP evaluations/scoring

ii. include scientists from {state}, other states or state/federal agency scientists.

4. Conflicts of Interest

a. Science and Scoring Working Group members shall be screened for conflicts of interest and required to sign a conflict of interest form and a non-disclosure agreement.

b. Scoring Working Group members are not allowed to submit proposals for any RFP they evaluate, or they must recuse themselves from such scoring if they do submit, or are associated in any way with, a proposal.

5. Independent verification

a. CPA will contract with an independent, third party audit firm to review program performance and research project process verification.

6. Peer Reviewed and Published Data

a. Peer review process will be used to publish data, either in scholarly journals or in publicly available reports

b. Technical advisory committees can serve as the peer review forum throughout the lifetime of the project.

2. If requested by a local government or a state official, the task force may review state and local governmental efforts to address endangered species issues and provide recommendations to make those efforts more cost-effective. The task force shall consider all available options as part of its recommendations. The options considered must include:

a. Free simple acquisition of land;

b. Conservation easements;

c. Use of land owned by local government or {state};

d. Recovery crediting; and

e. All relevant federal programs.

Section 6. {Advisory Committees}

1. With the advice of the task force, the presiding officer of the task force may create advisory committees to assist the task force with its work. Of the members of an advisory committee:

a. One-third must be representatives of affected landowners;

b. One-third must be representatives of conservation interests; and

c. One-third must be representatives of municipalities or other affected jurisdictions.

2. The composition of an advisory committee must provide the balance necessary to address economic, environmental, and policy issues related to the specific issue or action under consideration.

3. The presiding officer of the task force shall designate one member of an advisory committee as interim presiding officer for the purpose of calling and conducting the initial meeting of the committee.

4. An advisory committee shall:

a. At its initial meeting, select a presiding officer from among its members for the purpose of conducting meetings;

b. Conduct meetings as necessary to perform the business of the advisory committee; and

c. Provide recommendations to the task force as requested by the task force.

Section 7. {Coordination with Other Entities}

1. The task force shall work in coordination with the United States Fish and Wildlife Service, National Marine Fisheries Service, institutions of higher education, natural resource utilization organizations, and conservation organizations in performing its functions and duties.

2. The state university system shall, within its expertise:

a. Assist in the analysis of biological and economic impacts of proposed actions; and

b. Direct programs recommended by the task force.

Section 8. {Reports}

1. The task force may provide reports as needed on:

a. The activities of the task force;

b. Innovative programs to address endangered species issues while promoting economic growth; and

c. Recommendations for future programs or legislation.

Section 9. {Conservation Plans}

1. To promote compliance with federal law protecting endangered, proposed and candidate species in a manner consistent with a state’s economic development and fiscal stability, the presiding officer of the task force and his/her agency may:

a. Designate a third party, including a private conservation organization, to develop and coordinate habitat conservation plans or candidate conservation plans, provided participation in such plans is voluntary. Such plans shall be undertaken with the goal of gaining approval from the U.S. Fish and Wildlife Service or National Marine Fisheries Service under relevant provisions of the Endangered Species Act. The responsibilities of the third party shall include:

i. Applying for and holding a federal permit issued in connection with a habitat conservation plan or candidate conservation plan developed by the presiding officer’s agency or the development of which is coordinated by the presiding officer’s agency;

ii. Entering into an agreement for the implementation of a candidate conservation plan with the United States Department of the Interior or the United States Department of Commerce, or assist another entity in entering into such an agreement;

iii. Establishing a habitat protection fund to be used to support the development or coordination of a habitat conservation plan or a candidate conservation plan, or to pay the costs of monitoring or administering the implementation of such a plan;

iv. Imposing or providing for the imposition of a mitigation fee in connection with a habitat conservation plan or such fees as are necessary or advisable for a candidate conservation plan;

v. Implementing, monitoring, or supporting the implementation of a habitat conservation plan or candidate conservation plan; and

vi. Complying with the landowner confidentiality provision of this Act.

b. One such type of conservation plan is the Recovery Credit System, which is based on:

i. A voluntary, incentive-based approach to endangered species conservation, modeled on the U.S. Department of Agriculture’s Conservation Reserve Program, under which landowners conserve land and resources in exchange for cost sharing and technical assistance.

ii. Achieving net benefit for species conservation.

iii. A transparent and scientifically valid process that involves a wide range of stakeholders.

iv. Offsetting human-caused loss of habitat for endangered, proposed, and candidate species by providing qualifying habitat elsewhere.

v. Participating landowners with qualifying habitat sign contracts of between ten and thirty years, in five year increments, to provide offsetting habitat.

vi. Participating landowners with qualifying habitat collaborating with technical specialists to determine the management practices and conditions under which species habitat is maintained and enhanced.

vii. Creating credits for maintaining and enhancing habitat through a transparent system that takes account of various biological and environmental factors.

viii. Credits, which are held in a “bank,” are offered for sale at predetermined intervals by participating landowners with qualifying habitat in a lowbidder, or reverse, auction to participating landowners that need to offset habitat loss caused by their activities.

ix. Aggregate data on species and habitat is made available to the U.S. Fish and Wildlife Service or National Marine Fisheries Service so they can verify the efficacy of the Recovery Credit System for a given species, but data and information about individual landowners is protected by confidentiality agreements.

Section 9. {Confidential Information}

1. To promote endangered species conservation, either by landowners voluntarily agreeing to have their property surveyed or voluntarily participating in a conservation plan, the confidentiality of species information on private property must be ensured.

a. Information collected in the furtherance of the roles, responsibilities and duties of the task force by an agency, or an entity acting on the agency’s behalf, from a private landowner or other participant or potential participant in a species survey, habitat conservation plan, proposed habitat conservation plan, candidate conservation plan, or proposed candidate conservation plan shall not be disclosed to any person, including those with a state or federal agency, if the information relates to the specific location, species identification, or quantity of any animal or plant life for which a plan is under consideration, development or implementation. The agency may disclose such information described only to the person who provided the information unless the person consents in writing to full or specified partial disclosure of information.

b. Such information about species shall only be collected through a standardized form in which a landowner provides express written consent to have their property surveyed.

Section 10. {Administrative Support}

1. The office of the presiding office of the task force shall provide administrative support to the task force.

Section 11. {Severability Clause.}

Section 12. {Repealer Clause.}

Section 13. {Effective Date.}