oversight

Endangered Species: Fish and Wildlife Service Uses Best Available Science to Make Listing Decisions, but Additional Guidance Needed for Critical Habitat Designations

Published by the Government Accountability Office on 2003-08-29.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

              United States General Accounting Office

GAO           Report to Congressional Requesters




August 2003
              ENDANGERED
              SPECIES
              Fish and Wildlife
              Service Uses Best
              Available Science to
              Make Listing
              Decisions, but
              Additional Guidance
              Needed for Critical
              Habitat Designations




GAO-03-803
              a
                                                 August 2003


                                                 ENDANGERED SPECIES

                                                 Fish and Wildlife Service Uses Best
Highlights of GAO-03-803 a report to             Available Science to Make Listing
congressional requesters
                                                 Decisions, but Additional Guidance
                                                 Needed for Critical Habitat Designations


Recent concerns about the U.S.                   The Endangered Species Act requires the U.S. Fish and Wildlife Service to
Fish and Wildlife Service’s                      identify, or “list,” species that are at risk of extinction and provide for their
(Service) endangered species                     protection. The act also generally requires the Service to designate critical
listing and critical habitat decisions           habitat—habitat essential to a species’ conservation—for each listed species.
have focused on the role that                    The Service must use the best available science when making listing and
“sound science” plays in the
decision-making process—whether
                                                 critical habitat decisions.
the Service bases its decisions on
adequate scientific data and                     The Service’s policies and practices generally ensure that listing and critical
properly interprets those data. In               habitat decisions are based on the best available science. The Service
this report, GAO assesses the                    consults with experts and considers information from federal and state
extent to which (1) the Service’s                agencies, academia, other stakeholders, and the general public. Decisions
policies and practices ensure that               are subject to external “peer review” and extensive internal review to help
listing and critical habitat decisions           ensure that decisions are based on the best available science and conform to
are based on the best available                  contemporary scientific principles.
science and (2) external reviewers
support the scientific data and                  External reviews indicate that the Service’s listing and critical habitat
conclusions that the Service used
to make those decisions. In
                                                 decisions generally have scientific support, but concerns over the adequacy
addition, GAO highlights the nature              of critical habitat determinations remain. Listing decisions are often
and extent that litigation is                    characterized as straightforward, and experts, peer reviewers, and others
affecting the Service’s ability to               generally support the science behind these decisions. Critical habitat
effectively manage its critical                  designations, on the other hand, are more complex and often require
habitat program.                                 additional scientific and nonscientific information. As a result, peer
                                                 reviewers often expressed concern about the specific areas designated,
                                                 while other experts expressed concerns about the adequacy of the data
                                                 available to make designations.
Because the Service’s critical
habitat program faces serious
challenges, including potential legal            The Service’s critical habitat program has been characterized by frequent
challenges and questions regarding               litigation. Specifically, the Service has lost a series of legal challenges that
the role of critical habitat in                  will require significant resources for the next 5 fiscal years to respond to
species conservation, GAO is                     court orders and settlement agreements for designating critical habitat. As a
recommending that the Service                    result, the Service is unable to focus resources on activities it believes
provide clear strategic direction for            provide more protection to species than designating critical habitat. While
the critical habitat program, in a               the Service recognizes that it has lost control of the program, it has yet to
specified time frame, by identifying             offer a remedy. Without taking proactive steps to clarify the role of critical
the issues affecting the Service’s               habitat and how and when it should be designated, the Service will continue
ability to effectively manage the
                                                 to have difficulty effectively managing the program.
program and recommending
policy/guidance, regulatory, and/or
legislative changes necessary to
address these issues.



www.gao.gov/cgi-bin/getrpt?GAO-03-803.

To view the full product, including the scope
and methodology, click on the link above.
For more information, contact Barry T. Hill at
(202) 512-3841 or hillbt@gao.gov.
Contents



Letter                                                                                                          1
                             Results in Brief                                                                   3
                             Background                                                                         5
                             Procedures Are in Place to Ensure That Listing and Critical Habitat
                               Decisions Are Based on the Best Available Science                                9
                             Peer Reviewers and Others Conclude that Most Listing Decisions
                               Are Based on Best Available Science, but Concerns about Critical
                               Habitat Decisions Remain                                                        19
                             The Service Has Failed to Address Known Problems with the Critical
                               Habitat Program                                                                 32
                             Conclusion                                                                        36
                             Recommendation for Executive Action                                               36
                             Agency Comments                                                                   36


Appendixes
              Appendix I:    Objectives, Scope, and Methodology                                                38
             Appendix II:    Overview of The Endangered Species Act                                            42
                             Listing Species as Endangered or Threatened                                       43
                             Critical Habitat                                                                  44
                             Recovery Plans                                                                    45
                             Consultations with Federal Agencies                                               45
                             Habitat Conservation Plans                                                        47
             Appendix III:   Peer Reviewers’ Responses to Listing and Critical Habitat
                             Decisions for Fiscal Years 1999 through 2002                                      48
             Appendix IV:    The Nature of Scientific Controversy Surrounding Listing
                             and Critical Habitat Decisions                                                    58
                             Listing                                                                           58
                             Critical Habitat                                                                  62
              Appendix V:    GAO Contact and Staff Acknowledgments                                             68
                             GAO Contact                                                                       68
                             Staff Acknowledgments                                                             68


Table                        Table 1: Species Delisted on the Basis of New Information                         26


Figures                      Figure 1: Number of Domestic Species Listed as Threatened or
                                       Endangered, 1981 through 2002                                            7




                             Page i        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Contents




Figure 2: Number of Domestic Species with Critical Habitat, 1981
          through 2002                                                                     8
Figure 3: The Service’s Process to List Species as Threatened or
          Endangered                                                                   11
Figure 4: Peer Review Response Rates for Listing and Critical
          Habitat Decisions, Fiscal Years 1999 through 2002                            18
Figure 5: Canada lynx                                                                  61
Figure 6: California red-legged frog                                                   64
Figure 7: Southwestern willow flycatcher                                               66




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Page ii          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
A
United States General Accounting Office
Washington, D.C. 20548



                                    August 29, 2003                                                                             Leter




                                    The Honorable Bob Goodlatte
                                    Chairman, Committee on Agriculture
                                    House of Representatives

                                    The Honorable Scott McInnis
                                    Chairman, Subcommittee on Forests and Forest Health
                                    Committee on Resources
                                    House of Representatives

                                    The Honorable Richard Pombo
                                    Chairman, Committee on Resources
                                    House of Representatives

                                    The Congress enacted the Endangered Species Act in 1973 to protect plant
                                    and animal species whose survival is in jeopardy. The U.S. Fish and
                                    Wildlife Service (Service) is responsible for implementing the act for
                                    freshwater and land species.1 For many years, the act, its implementation,
                                    and the Service have served as lightning rods in the ongoing national
                                    debate concerning the tradeoffs between economic, social, and
                                    environmental values. The act requires the Service to list as endangered
                                    any species facing extinction throughout all or a significant portion of its
                                    range and to list as threatened any species likely to become endangered in
                                    the foreseeable future. The Service must make decisions to list species
                                    solely on the basis of the best available scientific and commercial data,
                                    such as biological or trade data obtained from commercial publications.
                                    The act also generally requires the Service to designate critical habitat—
                                    habitat essential to a species’ conservation—when listing a species; the
                                    loss of habitat is often the principal cause of species decline. For critical
                                    habitat decisions, the act again requires the Service to consider the best
                                    available scientific data, but also requires the Service to consider the
                                    economic impact and other relevant impacts of designating particular areas
                                    as critical habitat. The Service is also required to develop a plan to recover


                                    1
                                     The Department of the Interior, which has responsibilities for implementing the
                                    Endangered Species Act, has delegated its responsibility to the U.S. Fish and Wildlife
                                    Service, which established an endangered species program to implement the requirements
                                    of the act. The Department of Commerce, which has delegated its responsibilities to the
                                    National Marine Fisheries Service, is responsible for implementing the act for anadromous
                                    fish and most marine species. This report does not address the National Marine Fisheries
                                    Service program.




                                    Page 1           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
the listed species to the point that it is no longer threatened or endangered,
an achievement marked by its removal, or delisting, from the list of
threatened or endangered species.

Recent concerns about the Service’s listing and critical habitat decisions
have focused on the role that “sound science” plays in the decision-making
process and whether the Service bases its decisions on adequate scientific
data and properly interprets those data. Critics of the decisions warn that
improper listing and critical habitat decisions may cause social and
economic disruption and divert funding and attention away from other
species truly facing extinction. In addition to concerns about its use of
science, the Service is having difficulty managing the listing and critical
habitat programs, in part because of extensive litigation. Currently, the
Service is experiencing a significant backlog of decisions to list species and
to designate critical habitat. The Service has identified more than 200
species that qualify for listing but for which the listing process has not yet
begun because of resource limitations or higher-priority actions being
taken for other species.

You asked us to assess the Service’s consideration and use of science in its
decisions to list species as threatened or endangered and to designate
critical habitat. Specifically, we reviewed the extent to which (1) the
Service’s policies and practices ensure that listing and critical habitat
decisions are based on the best available science and (2) outside reviewers
support the scientific data and conclusions that the Service uses to make
listing and critical habitat decisions. In addition, in performing our work,
we identified certain factors that could continue to affect the Service’s
ability to effectively manage its critical habitat program. Our report
highlights the nature and extent of those problems as well.

In meeting our objectives, we examined decision documents for the 101
listing and critical habitat decisions that the Service issued during fiscal
years 1999 through 2002. There were 64 listing decisions and 37 critical
habitat decisions covering 108 and 36 species, respectively. To evaluate the
adequacy of the science used to support these decisions, we reviewed (1)
the Service’s policies, procedures, and practices for making listing and
critical habitat decisions; (2) the responses of peer reviewers who
commented on 79 listing and critical habitat actions; and (3) judicial
decisions related to listing and critical habitat actions decided during fiscal
years 1999 through 2002. We also interviewed staff at seven field and
regional offices and at Service headquarters to help understand the
Service’s decision-making process. We interviewed individuals with



Page 2         GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                   academic, industry, and conservation organizations and the National
                   Academy of Sciences to better understand why some of the Service’s
                   decisions are controversial. In this report, we define “science” as the
                   collection and interpretation of biological information, such as
                   identification of the species and its habitat needs. At no point in our review
                   did we attempt to directly evaluate the scientific analysis on which the
                   Service based its listing and critical habitat decisions. A more detailed
                   description of our scope and methodology is presented in appendix I.



Results in Brief   The Service’s policies and practices generally ensure that listing and critical
                   habitat decisions are based on the best available science. In making listing
                   and critical habitat decisions, the Service consults with experts both inside
                   and outside the federal government and considers studies or other data
                   from federal and state agencies, other stakeholders, and the general public.
                   Both proposed decisions and final decisions are subject to internal review
                   at field, regional, and headquarters offices to help ensure that the
                   professional judgment is sound and conforms to contemporary scientific
                   theories and principles. In addition, the Service also has a policy to ask at
                   least three independent scientific experts in a relevant field to “peer
                   review” proposed decisions to list species or designate critical habitat to
                   help ensure that decisions are based on the best available science.

                   Reviews by outside experts and others indicate that the Service’s listing
                   and critical habitat decisions are generally based on the best available
                   science, but that there are concerns over the adequacy of the data used to
                   support critical habitat designations. For listing decisions, peer reviewers
                   overwhelmingly supported the science behind the decisions the Service
                   issued between fiscal years 1999 and 2002. Additionally, during that same
                   time period, the courts overturned few listing decisions because the
                   Service relied on faulty or inadequate science. Further evidence that listing
                   decisions are scientifically sound is provided by the fact that only 10 of the
                   more than 1,200 domestic listed species have been delisted after new
                   scientific information surfaced that indicated the original listing was not
                   warranted. In contrast, while external reviews indicate that most critical
                   habitat decisions are based on the best available science, experts and
                   others we spoke to expressed concerns over the adequacy of the
                   information available to support the designations. While peer reviewers
                   generally agreed with the science supporting the Service’s critical habitat
                   decisions, they often also provided suggestions for modifying the
                   designations. In three decisions, peer reviewers disagreed with the
                   Service’s designation of critical habitat, stating that the Service had



                   Page 3         GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
insufficient information to make the decision. Although the Service has
frequently lost legal challenges over its critical habitat designations, courts
have overturned few of the Service’s critical habitat decisions as not
supported by the best available science. Instead, most of the challenges
dealt with nonscience issues, such as the Service’s failure to designate
habitat for a listed species.

Key court decisions have invalidated certain practices adopted by the
Service, causing its critical habitat program to be dominated by litigation.
In 1997, the Service lost a lawsuit challenging its practice of not designating
critical habitat for many species; the Service did not designate critical
habitat because it believes it conveys little additional protection to listed
species. This suit led to numerous other suits, resulting in court orders
directing the Service to designate critical habitat for many previously listed
species. In 1999, the Service announced that its system for designating
critical habitat was not working and that critical habitat litigation and
related court orders were consuming much of the program’s resources. To
remedy the situation, the Service announced its intention to develop
guidance and/or regulations to clarify the role of critical habitat in
endangered species conservation and to streamline the process used to
designate critical habitat. However, such guidance and clarification were
never issued, and the Service continues to follow the same system that it
recognizes is unworkable. In 2001, the Service lost another lawsuit, which
challenged the adequacy of the economic analyses the Service used to
support its critical habitat designations. These two lawsuits, and
subsequent legal challenges based on similar issues, have come to
dominate the Service’s critical habitat program. In 2002, we reported on
problems facing the critical habitat program and recommended that the
Service expedite its efforts to issue guidance for the program; however, the
Service has yet to do so.2 If the Service does not take proactive steps to
clarify the role of critical habitat and how and when it should be
designated, we believe it will continue to have difficulty effectively
managing the program. Therefore, we recommend that the Service—
through guidance, regulations, or other policy tools—provide clear
strategic direction for the critical habitat program in order to provide the
greatest conservation benefit to threatened and endangered species in the



2
 U.S. General Accounting Office, Endangered Species Program: Information on How
Funds Are Allocated and What Activities Are Emphasized, GAO-02-581 (Washington, D.C.:
June 25, 2002).




Page 4          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
             most cost-effective manner. The Department of the Interior did not
             respond to our request to comment on the recommendation.



Background   The Congress enacted the Endangered Species Act in 1973 to conserve
             threatened or endangered plant and animal species. The act requires the
             Service to base its determination of whether a species is endangered or
             threatened solely on the basis of the best available scientific and
             commercial data.3 Available data includes biological or trade data obtained
             from scientific or commercial publications, administrative reports, maps or
             other graphic materials, or experts on the subject. Using the best available
             data, the act requires the Service to determine whether a species should be
             listed as threatened or endangered by analyzing its status based on the
             following five factors:4

             • present or threatened destruction, modification, or curtailment of a
               species habitat or range;

             • overuse for commercial, recreational, scientific, or educational
               purposes;

             • disease or predation;

             • inadequacy of existing regulatory mechanisms; or

             • other natural or manmade factors affecting a species’ continued
               existence.




             3
             16 U.S.C. §1533(b).
             4
              16 U.S.C. §1533(a)(1). The Service must also use these factors to determine if a species
             should be reclassified from endangered to threatened or vice versa and, in some instances,
             whether it should be delisted. The Service would not take into consideration these factors
             to delist a species because it is extinct.




             Page 5           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
As of June 2003, the Service had listed 1,263 species in the United States as
threatened or endangered. This total included 517 animal species and 746
plant species.5 The number of species listed per year has varied
considerably, as shown in figure 1. There are also 558 foreign species listed
as threatened or endangered.




5
 The totals count a species or subspecies only one time, even if it occurs on the list more
than once. A species or subspecies could be listed more than once if, for example, it was
threatened in one part of its range and endangered in the rest of its range (these are known
as “dual status species”). Similarly, a species or subspecies might occur on the list more
than once if more than one distinct population segment of a species is listed. Distinct
population segments are populations of vertebrate species that are discrete, for example,
because they are geographically separated from other populations of the species.




Page 6            GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Figure 1: Number of Domestic Species Listed as Threatened or Endangered, 1981 through 2002




                                        Note: There have been 25 domestic species delisted since the inception of the act. These species are
                                        not included in the figure. In addition, 16 species have been reclassified from endangered to
                                        threatened.




                                        Page 7             GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                                          As of June 2003, the Service was in the process of listing 36 more species
                                          and had identified 251 species as candidates for listing. The act also
                                          requires the Service to designate critical habitat for listed species. Critical
                                          habitat is a specific geographic area that is essential for the conservation of
                                          a threatened or endangered species and that may require special
                                          management and protection.6 As of June 2003, 417 domestic species had
                                          critical habitat designated. The number of critical habitat designations per
                                          year has varied considerably, as shown in figure 2.



Figure 2: Number of Domestic Species with Critical Habitat, 1981 through 2002




                                          Note: Some species may have had critical habitat designated more than one time; the graph includes
                                          only the first time that critical habitat was designated.




                                          6
                                           16 U.S.C §1532(5).




                                          Page 8             GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                        The Endangered Species Act has provisions to protect and recover species
                        once they are listed. The act prohibits the “taking” of listed animal species
                        by any party—federal or nonfederal.7 “Taking” or “take” means to harass,
                        harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a listed
                        species.8 Also, federal agencies must ensure that their activities, or any
                        activities they fund, permit, or license, do not jeopardize the continued
                        existence of a listed species or result in the destruction or adverse
                        modification of its critical habitat. The act establishes a process for federal
                        agencies to consult with the Service about their activities that may affect
                        listed species. In addition, the act requires that the Service develop a
                        recovery plan to reverse the decline of each listed species and ensure its
                        long-term survival. A recovery plan may include a variety of methods and
                        procedures to recover listed species, such as protective measures to
                        prevent extinction or further decline, habitat acquisition and restoration,
                        and other on-the-ground activities for managing and monitoring
                        endangered and threatened species. To date, seven domestic species have
                        been delisted due to recovery. (App. II provides additional information on
                        the process used by the Service to protect listed species.)



Procedures Are in       The Endangered Species Act requires the Service to use the best available
                        scientific data when deciding to list species or designate critical habitat.
Place to Ensure That    The “best available” standard does not obligate the Service to conduct
Listing and Critical    studies to obtain missing data, but it prohibits the Service from ignoring
                        available data. The Service goes through an extensive series of procedural
Habitat Decisions Are   steps that involves public participation and review by outside experts to
Based on the Best       help ensure that it collects relevant data and uses it appropriately.
Available Science       Although the process alone is not sufficient to ensure the accuracy of the
                        Service’s listing and critical habitat decisions, it generally ensures that the
                        Service is using and considering the “best available” data.




                        7
                         16 U.S.C. §1538(a)(1)(B), (C). The Endangered Species Act prohibits the taking of
                        endangered, but not threatened, species. However, the act authorizes the Service to, by
                        regulation, prohibit the taking of a threatened species. The Service has issued a regulation
                        extending the take prohibitions to threatened species, except for those covered by a specific
                        rule, exemption, or permit. See 50 C.F.R. §17.31.
                        8
                        16 U.S.C. §1532(19).




                        Page 9            GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Internal Decision-Making      The Service follows a rigorous process in listing a species as endangered or
Process Helps Ensure That     threatened, designating critical habitat, or removing a species from the
                              endangered and threatened list. The Service’s process includes following a
the Service Uses Best         rulemaking procedure, established by the Endangered Species Act,
Available Science in Making   supported by additional procedures under Service regulations and
Decisions                     guidance. The complete text of the proposed and final rules and related
                              information (including a summary of data on which the proposal is based
                              and a summary of comments received on the proposal) are published in the
                              Federal Register, the government’s official publication for making public
                              the regulations and legal notices issued by federal agencies. The act and
                              regulations require the Service to provide an opportunity for public
                              participation in the rulemaking process, notify affected states and local
                              jurisdictions and invite comments from them and other interested parties,
                              notify newspapers and professional journals, and hold at least one public
                              hearing, if requested, within 45 days of publishing the proposal.
                              Additionally, Service procedures provide for listing and critical habitat
                              decisions to be reviewed internally to help ensure that the professional
                              judgment that the Service’s scientists exercise when weighing and
                              interpreting the collected data is sound and conforms to contemporary
                              scientific theories and principles.9

                              The process to list a species begins either through a petition from an
                              individual, group, or state agency or through the initiative of the Service
                              (see fig. 3).10




                              9
                               The Department of the Interior has recently issued a code of scientific conduct to be used
                              by all Interior scientists—including the Service—to ensure that all research and analysis is
                              conducted according to the highest standards of the scientific community.
                              10
                               The Service uses the same process to delist or to reclassify a species from endangered to
                              threatened or vice versa. Either action may be initiated through a petition or by the
                              Secretary of the Interior.




                              Page 10           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Figure 3: The Service’s Process to List Species as Threatened or Endangered




Page 11        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
When a petition is filed to list a species, the Service provides a copy of the
petition to, and requests information from, appropriate state agencies and
affected tribal governments. The Service uses the information that it
receives from these parties (or that which is contained in the petition or
otherwise readily available) to make its initial determination as to whether
a species may be threatened or endangered, and if so, to proceed with data
gathering and analysis.11 The act requires the Service to make this
determination generally within 90 days of receiving the petition. If the
Service determines that it should proceed, it conducts a “status review”—a
review of all the available information on a species—to determine whether
the species warrants protection under the act. To conduct the status
review, the Service solicits comments and requests information from the
general public (by publishing a notice in the Federal Register) and contacts
affected local, state, tribal and federal agencies; interested conservation or
industry groups; and scientific organizations or professionals interested in
and/or knowledgeable about the species. The Service may also fund field
surveys, museum research, and literature searches in order to compile
available information. Service scientists who conduct status reviews told
us that they often work closely with experts from other government
agencies, academia, and elsewhere to help gather and interpret
information. In some instances, the Service initiates a review of a species
without a petition, for which it conducts a candidate assessment—similar
to a status review—to identify available information.

Within 12 months of receiving a petition for which the Service proceeded
with a status review, the Service must determine whether the species’
listing is warranted. If a Service field office makes an initial determination
that the listing is warranted, it prepares a proposed rule for publication in
the Federal Register. Before the proposed rule is published, a draft
receives considerable internal review by officials in the Service’s field,
regional, and headquarters offices.12 The review by officials in the field and


11
 The Service bases its determination on whether or not there is “substantial” information to
proceed. Substantial information is defined by Service regulations as information that
would lead a reasonable person to believe that the measure proposed in the petition may be
warranted. 50 C.F.R. § 424.13(b).
12
  If the field office determines the petition is not warranted or is warranted but precluded,
the Service will issue a notice in the Federal Register. This notice goes through a similar
internal review process. A “warranted but precluded” finding is made when the petitioned
action is precluded from immediate action by other, higher priority actions. The Service
reevaluates warranted but precluded petitions every 12 months until either a proposed rule
is issued or a "not warranted" finding is made.




Page 12           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
regional offices helps ensure the exercise of sound professional judgment.
The field office that is responsible for the listing provides the appropriate
regional office with the draft of the proposed rule and all supporting
scientific information. Officials in the regional office review the proposed
rule to ensure that scientific information supports the proposed rule.
Regions are responsible for ensuring that the proposed rule is scientifically
accurate and biologically and legally sound. Regional officials told us that
the review is an opportunity for the region to identify information gaps and
issues concerning how the information supports the conclusions. At the
Service’s headquarters, the draft proposed rule is reviewed to ensure that it
is consistent with other listing rules and complies with national policies.
Either the Director of the Fish and Wildlife Service or the Assistant
Secretary for Fish and Wildlife and Parks approves all proposed rules
before publication.

Upon publication, the public has at least 60 days to provide comments on a
proposed rule. The Service may extend the public comment period and/or
reopen it at a later date. Service officials told us that the public comment
period is an opportunity to reach biologists, scientists, academicians, and
advocacy groups that the Service may not have contacted previously. The
Service also holds public hearings, if requested. At the end of the public
comment period, the Service reevaluates all the data, including the
comments received since the proposal was published, to determine
whether the listing is still warranted. If not, the proposal will be
withdrawn. The Service must publish its final decision within 12 months of
its proposal. In cases when experts disagree on the accuracy or sufficiency
of the available data concerning the proposed listing, or the release of
additional information that may affect the outcome of the petition is
expected, the proposal may be extended 6 months beyond the normal 12-
month time frame. In the event that the listing is warranted, the Service
prepares a final rule, incorporating appropriate changes based on the
information received during the comment period. Final rules are subject
to the same internal review process as proposed rules and are approved by
either the Director of the Fish and Wildlife Service or Assistant Secretary
for Fish and Wildlife and Parks before being published.

The procedures for designating critical habitat are similar to those for
listing a species. However, in designating critical habitat, the Service must
also take into consideration the economic and other impacts of specifying
any particular area as critical habitat. The Assistant Secretary of Fish and
Wildlife and Parks approves critical habitat designations.




Page 13        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                         Officials at all levels of the agency demonstrated familiarity with the
                         requirements of the review process and stated that they believe it provides
                         the general guidelines necessary to ensure the best available data are
                         identified and properly interpreted. Field office officials noted that
                         proposed and final rules are challenged internally to ensure they can
                         withstand public scrutiny and that while rulemakings are initiated at the
                         field level, extensive review ensures that the entire agency is on board
                         before anything is finalized. Scientists and other agency personnel told us
                         that they use the process to test the validity of their listing and critical
                         habitat decisions. Some officials emphasized the crucial role that the
                         experience and expertise of the Service’s scientists play in ensuring that
                         listing and critical habitat decisions are based on the best available science.



Outside Experts Review   Peer review is considered to be the most reliable tool to ensure that quality
Proposed Rules           science will prevail over social, economic, and political considerations in
                         the development of a particular product or decision. Peer review—a
                         routine component of science—can substantially enhance the quality and
                         credibility of the scientific or technical basis for a decision. For regulatory
                         decisions, peer review can provide for independent and expert analysis to
                         complement the adversarial and political nature of rulemaking.

                         While many federal agencies were already using peer review, the Office of
                         Management and Budget (OMB) issued guidance in 2002 recommending
                         that federal agencies utilize formal, independent external peer review (peer
                         review by individuals outside of the agency) to ensure the quality of data
                         and analytic results disseminated to the public.13 It also recommended that
                         peer reviewers be selected primarily on the basis of their technical
                         expertise, that they disclose any source of bias (either prior technical or
                         policy positions or sources of personal and institutional funding from
                         which they may benefit), and that peer review be conducted in an open and
                         rigorous manner. 14




                         13
                              67 Fed. Reg. 8452 (Feb. 22, 2002).
                         14
                          Office of Management and Budget, Memorandum for the President’s Management
                         Council, Sept. 20, 2001.




                         Page 14               GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Federal agencies have adopted a variety of peer-review practices,
depending on the nature of the product or decision under review. As we
reported in 1999, peer-review practices at federal agencies vary according
to their intended use and form.15 According to OMB’s 2002 guidance,
agencies should tailor the rigor and intensity of peer review in accordance
with the significance of risk or management implications of the information
involved. The form of peer review can range from informal consultations
with agency colleagues not involved in the earlier stages of the project to
formal external advisory panels, which can span several years and cost
thousands of dollars. In addition, for each different form of peer review,
there are multiple variations—the amount of time allocated for the review,
the number of reviewers, and whether the review occurs internally or
externally—all of which affect the overall time and cost required to
conduct a review.

In addition to its internal decision-making processes, the Service uses
external peer review of listing and critical habitat decisions to ensure that
the best biological and commercial information is being considered. The
Service’s peer-review policy requires officials to solicit the opinions of
three appropriate and independent experts regarding scientific data and
assumptions supporting listing and critical habitat decisions.16 Peer
reviewers are selected at the discretion of the field office scientists
responsible for developing listing and critical habitat decisions. The
reviewers, who may come from the academic and scientific community,
tribal and other Native American groups, federal and state agencies, and/or
the private sector, are selected on the basis of their independence and
expertise on the species being considered, similar species, the species’
habitat, or other relevant subject matter. The Service’s scientists may ask
peer reviewers to critique specific aspects of the proposed rule, such as the
Service’s interpretation of a particular study, or they may ask reviewers to
comment on the rule in its entirety.

The Service’s peer-review policy generally appears to be appropriate for the
circumstances in which it is used. Although other agencies may use more
rigorous forms of peer review, such as convening a peer-review panel or a


15
 U.S. General Accounting Office, Federal Research: Peer Review Practices at Federal
Science Agencies Vary, GAO/RCED-99-99 (Washington, D.C.: Mar. 17, 1999).
16
   59 Fed. Reg. 34270 (July 1, 1994). The Service is currently drafting interim peer review
guidance that will provide objectives and procedures for implementing the 1994 peer review
policy. It does not have an estimated date when it will issue permanent guidance.




Page 15          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
science advisory board, the Service’s peer-review process allows the
Service to make listing and critical habitat decisions under relatively short
time frames (the Service usually asks peer reviewers to perform their
review during the public comment period—normally 60 days—while a
peer-review panel may span several months or years). However, to help
ensure the identification of complete and current information on a species
and its habitat, the Service may contact experts during the status review. In
addition, any decisions that are issued as “final” rules can later be
reconsidered as circumstances warrant or new information becomes
available. In fact, a species can be delisted if new information surfaces
indicating that the original decision to list was not warranted.

One limitation that the Service faces in getting an independent review is the
scarcity of experts on a particular species. For example, in some instances,
the most qualified experts to peer review a decision may have authored
some of the studies that the Service used to support its decision, forcing
the Service to balance expertise with independence. However, according
to a National Academy of Sciences report that reviewed the Environmental
Protection Agency’s use of peer review for similar actions, to choose an
individual to peer review who is both an expert and independent might be
impossible, or might not promote the best possible review.17 In such cases,
an appropriate balance of views may be sought to ensure that different
interpretations on the scientific and technical merit of a decision are taken
into consideration. Such cases should, however, be fully disclosed. Other
organizations have developed procedures for assessing the independence
of peer reviewers, ranging from simply requiring peer reviewers to disclose
any potential bias, to using third parties to identify peer reviewers based, in
part, on their independence. Service officials told us that they have not
adopted a formal procedure to assess peer reviewers’ independence, and
the Service does not publicly disclose in the Federal Register potential
conflicts or prior involvement by its peer reviewers when the Service
publishes the final rule.




17
 National Research Council, Strengthening Science at the U.S. Environmental Protection
Agency: Research-Management and Peer-Review Practices (Washington D.C.: National
Academy Press, 2000).




Page 16          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
The Service generally complied with its peer-review policy of soliciting
peer review from at least three reviewers during fiscal years 1999 through
2002. During this time, the Service solicited three or more peer reviewers
in 94 out of the 100 listing and critical habitat decisions it made.18 In three
instances the Service solicited fewer than three peer reviewers, and in
three other instances documentation was unavailable to indicate how many
reviewers were asked.19 (See app. III for a complete list of the decisions
with the number of peer reviewers solicited, the number that responded,
and how they responded.)

While the Service generally complied with its policy to seek peer reviewers,
reviewers often did not respond. As shown in figure 4, the Service received
responses from three or more peer reviewers in 38 decisions for which it
solicited at least three peer reviewers. It received either one or two
responses in 41 decisions, and no responses in 15 decisions.




18
 Although the Service published 101 listing and critical habitat decisions during fiscal years
1999 through 2002, the decision to list as threatened the Lake Erie water snakes (64 Fed.
Reg. 47126 (Aug. 30, 1999)) is not included in this analysis because the comment period for
the proposed rule opened before the Service’s peer review policy became effective.
19
  In two additional instances, documentation is also unavailable to indicate how many
reviewers were asked but there is documentation that the number of respondents was
greater than two. In these instances, we credited the Service with having solicited at least
three peer reviewers.




Page 17           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Figure 4: Peer Review Response Rates for Listing and Critical Habitat Decisions,
Fiscal Years 1999 through 2002




Note: Response rates are for the 94 decisions for which the Service solicited at least 3 peer reviewers.
Overall, the Service asked 422 experts to peer review the 100 listing and critical habitat decisions
made during fiscal years 1999 through 2002 and received 212 responses (50 percent response rate).


Field office scientists, as well as an expert on peer review, reported a
variety of reasons for the limited number of responses, including (1) the
potential peer reviewers had busy schedules and felt constrained by the
short time frames allotted to conduct the review, and (2) the potential
reviewers were unwilling to conduct peer review either because they did
not want to become involved in a controversial decision or because they
did not want to work without compensation. In addition, the field office
scientists reported that potential peer reviewers may not be inclined to
conduct peer review because they found nothing to criticize or had already
provided comments at an earlier stage of the decision, such as during the
status review.

Recognizing the importance of peer review, some regional and field offices
have taken steps to increase the number of respondents. For example,
some field offices contact potential peer reviewers in advance, rather than
initiating contact just before the decision is open for peer review; others
maintain communication with the peer reviewers throughout the process.
For example, the Pacific Islands field office in Honolulu, Hawaii, has
assigned an administrative staff person to initiate phone calls and E-mails
to help remind and encourage peer reviewers to respond. This staff person


Page 18             GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                               also monitors the implementation of the peer-review policy and tracks
                               results. In order to increase the likelihood that at least three peer
                               reviewers respond to a request, some field offices request peer reviews
                               from more than three individuals. Field office scientists suggested other
                               ways to increase the response rate, such as providing monetary
                               compensation, using a third party to select and coordinate peer review,
                               narrowing the scope of the review, and providing more time for review.



Peer Reviewers and             External reviews of listing and critical habitat decisions indicate that most
                               decisions are generally scientifically supported, but concerns about the
Others Conclude that           adequacy of critical habitat determinations remain. Listing decisions are
Most Listing Decisions         often characterized as straightforward, requiring the Service to answer
                               only a “yes or no” question as to whether a species warrants inclusion on
Are Based on Best              the threatened or endangered list. Critical habitat designations, on the
Available Science, but         other hand, are more complex and often require further information on the
Concerns about                 species’ habitat requirements and other management considerations. Peer
                               reviewers often expressed concerns about the specific areas designated as
Critical Habitat               critical habitat, while other experts expressed concerns about the
Decisions Remain               adequacy of the information available to make the designation.



Little Scientific              Experts and others have found most of the Service’s listing decisions to be
Disagreement Surrounds         scientifically supported. Experts knowledgeable about the Endangered
                               Species Act and recent studies assessing the Service’s use of science in
Listing Decisions              making listing decisions concur that the Service’s listing decisions are
                               generally supported. Similarly, experts not affiliated with the Service have
                               peer-reviewed proposals to list species and overwhelmingly supported the
                               Service’s decisions. The courts have overturned few listing decisions on the
                               basis of inadequate science, and the Service has delisted few species on the
                               basis of new information that suggested that protection under the act was
                               not originally warranted.

Experts and Others Generally   Experts, Service officials, and others knowledgeable about the Endangered
Support Service Listing        Species Act largely agree that most listing decisions have been relatively
Decisions                      straightforward and scientifically supported. Experts and others we spoke
                               to generally agreed that most listed species probably deserved being listed
                               under the current standard for best available scientific information. For
                               example, several attorneys, who represent the regulated community in
                               challenges to the Service’s decisions, stated that, given the Service’s short
                               time frames and limited resources, the science used to support most listing



                               Page 19        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
decisions did not present a significant problem. However, these attorneys
and others contend that the “best available data” standard does not provide
enough certainty that a species is threatened or endangered and suggest
that a more stringent standard should be developed. On the other hand,
interested parties representing a diverse set of interests raised concerns
that Service officials at the Headquarters level are succumbing to political
pressures to not list species despite support from regional and field
scientists who believe evidence shows that listing is warranted. Service
scientists told us they believe many listed species have low populations
and/or face clearly identified threats, indicating that the species are at risk.
They said that many listing decisions have been made to protect species
native to a specific area, with a narrow range, or for which substantial
scientific information was already available or easy to collect. On the other
hand, the scientists noted that collecting information becomes more
difficult and costly when a wide-ranging species may be at risk.
Additionally, several scientific disagreements regarding listing decisions
have surfaced in recent years, mostly concerning whether the amount of
information available at the time a decision is made suffices as a basis for a
decision. (See app. IV for information on the nature of scientific
controversy surrounding the Service’s decisions to list species.) Finally,
many of the experts we spoke with had concerns about the science used to
support other aspects of the act, such as recovery actions or consultations
with federal entities on proposed actions that could potentially harm a
listed species.




Page 20        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                                Several studies have supported the Service’s use of science in making
                                listing decisions. The Ecological Society of America—a professional
                                society of ecologists representing ecological researchers in more than 60
                                countries—released a study on the use of science in achieving the goals of
                                the act that concluded that the major problem with the listing process has
                                been its slowness rather than the quality of the listing decisions.20 The
                                National Research Council (NRC) reached similar conclusions in a 1995
                                report, finding that many of the conflicts and disagreements over the
                                Endangered Species Act do not appear to be based on scientific issues.21
                                More recently, in 2002, NRC reviewed the genetic evidence used to support
                                one particular listing decision, the listing of the Gulf of Maine Atlantic
                                salmon distinct population segment.22 It concluded that Maine salmon are
                                genetically distinct from other salmon, supporting the Service’s decision to
                                list the species.

Peer Reviewers Overwhelmingly   The Service received 143 peer-review responses for 54 of the 63 listing
Support the Service’s Use of    decisions finalized between fiscal years 1999 and 2002 and no responses for
Science in Making Listing       the remaining 9 decisions (see app. III). In 48 of these decisions, reviewers
Decisions                       providing comments unanimously agreed with the Service’s scientific
                                conclusions or otherwise indicated support for the decision to list the
                                species. In two decisions, the Service reported that one of the peer
                                reviewer’s opinions was “neutral,” and the rest of the opinions were
                                supportive. In two other decisions, we were unable to determine the nature
                                of one of the peer reviewer’s response. Peer reviewers disagreed with the
                                Service in the following two decisions:

                                • Alabama sturgeon. One of the five reviewers to provide comments on
                                  the proposal to list the Alabama sturgeon, a freshwater fish historically
                                  found throughout the Mobile River basin of Alabama and Mississippi,
                                  disagreed with the Service’s proposed listing determination. While the
                                  reviewer did not directly respond to the Service’s request for peer
                                  review, he did provide comments at one of the public hearings regarding

                                20
                                 Carroll, R., et al., Strengthening the Use of Science in Achieving the Goals of the
                                Endangered Species Act: An Assessment by the Ecological Society of America. Ecological
                                Applications, 6(1): 1-11 (1996).
                                21
                                 National Research Council, Science and the Endangered Species Act (Washington D.C.:
                                National Academy Press, 1995) 202.
                                22
                                  National Research Council, Genetic Status of Atlantic Salmon in Maine: Interim Report
                                from the Committee on Atlantic Salmon in Maine (Washington D.C.: National Academy
                                Press, 2002).




                                Page 21          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                                           the proposed rule. The reviewer argued that the Alabama sturgeon was
                                           not a valid species given the fish’s morphological (i.e., physical
                                           appearance such as color pattern, shape, and scale patterns) and genetic
                                           evidence. The other four reviewers responding to the proposed rule
                                           supported the validity of the Alabama sturgeon as a species.

                                    • Desert yellowhead. One of two reviewers who provided comments on
                                      the proposed rule to list the desert yellowhead (a flowering plant that
                                      occurs in Wyoming) agreed that the species was rare and in need of
                                      protection, but did not agree that listing the species under the act was
                                      the appropriate mechanism. The other reviewer supported listing the
                                      plant.

Courts Have Overturned Few          The Service’s actions and inactions under the act are frequently challenged
Listing Decisions on the Basis of   in the courts. In hearing such challenges, courts must defer to agencies in
Inadequate Science                  judging actions, such as listing decisions, and must not substitute their
                                    judgment for an agency’s, especially on technical matters.23 As a result,
                                    courts will uphold an agency decision when it is evident that the agency
                                    considered the relevant facts and articulated a rational connection between
                                    those facts and its decision.24 Partly because of the deference granted to
                                    the Service in making listing determinations, most litigation has not
                                    directly challenged the Service’s use of science. Instead, according to an
                                    official from the Department of the Interior’s Office of the Solicitor, most
                                    litigation revolves around definitional or procedural issues, such as the
                                    Service’s failure to meet statutory time frames. The official said that
                                    litigants often challenge decisions on nonscientific aspects of the act
                                    because they feel this provides them with a stronger case. Thus, the fact
                                    that the courts have rarely ruled against the Service on the basis of
                                    inadequate science is not necessarily an affirmation that the Service used
                                    the best available science.

                                    Based on a review of federal court cases decided during fiscal years 1999
                                    through 2002, we identified 17 cases in which a court issued an opinion
                                    related to the Service’s listing decisions. The Service lost 11 of these cases,
                                    mostly because it failed to take certain actions regarding decisions to list or
                                    not to list a species within the time allotted by the act. However, the courts


                                    23
                                       Baltimore Gas and Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 103
                                    (1983); Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).
                                    24
                                         Baltimore Gas and Electric Co., 462 U.S. at 105.




                                    Page 22              GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
overturned listing decisions on the basis of issues related to the use of
scientific data in the following two cases:

• Sacramento splittail. In 2000, a federal court ruled that the decision to
  list the Sacramento splittail was not supported by the best scientific
  data available.25 The splittail is a large fish with a distinctive tail and is
  native to California’s Central Valley. Regional water authorities
  challenged the listing of the splittail on scientific grounds, asserting,
  among other things, that the Service ignored an important study
  indicating resiliency and an increasing abundance of the splittail. The
  court rejected the Service’s arguments that these data were not
  submitted in time to be considered and were irrelevant, and found there
  to be no indication that the Service considered substantial evidence that
  suggested that the splittail should not be listed. The court thus
  concluded that the Service had failed to consider all available data. The
  Service is in the process of reevaluating this listing rule.

• Westslope cutthroat trout. In 2002, a federal court ruled that the
  Service’s decision not to list the Westslope cutthroat trout was not
  supported by the best scientific data available.26 The Westslope trout is
  one of 14 subspecies of cutthroat trout native to streams in the western
  United States. In its decision not to list the trout, the Service identified
  hybridization (the breeding with other species of trout) as one of the
  threats to the species, but included these hybrid fish in the population
  considered for listing. The court noted that if hybridization were a
  “threat” to the species, it would seem logical that hybrid fish should not
  be included in the population under consideration. After explaining that
  the identification of the existing population of the trout was vital to the
  ultimate listing determination, the court found that the record failed to
  offer a rationale for including hybrid stocks in the population that it
  considered for listing, and concluded that the Service had ignored
  existing scientific data for assessing the degree of hybridization that
  may be appropriate to include in the population. The court remanded
  the case to the Service for reconsideration.




25
     San Luis v. Badgley, 136 F. Supp.2d 1136 (E.D.Cal. 2000).
26
     American Wildlands v. Norton, 193 F.Supp.2d 244 (D.D.C. 2002).




Page 23              GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
The Service lost the following two cases because it failed to assess whether
the species was imperiled throughout “a significant portion of its range.”27

• Flat-tailed horned lizard. In 2001, an environmental group successfully
  challenged the Service’s decision not to list the flat-tailed horned lizard,
  a small lizard found in desert lands in the southwestern United States. 28
  In reaching its decision, the Service concluded that regardless of the
  threats to the lizard on private lands, large populations of the lizard and
  areas of its habitat were already protected under a conservation
  agreement on public lands and that the species was sufficiently
  protected from further threats. The court found that the Service should
  have performed an analysis to determine whether the private lands
  constituted “a significant portion of [the lizard’s] range” and, if so,
  whether the lizard was or would become extinct in that area. The court
  remanded the case to the Service for those determinations.

• Queen Charlotte goshawk. In 2002, an environmental group successfully
  challenged the Service’s decision not to list the Queen Charlotte
  goshawk, a forest-dwelling bird of prey found throughout North
  America. 29 In reaching its decision, the Service considered the
  goshawk’s presence in southeast Alaska, the Queen Charlotte Islands,
  and Vancouver Island in Canada.30 The Service found that the goshawk
  was not threatened or endangered in southeast Alaska or the Queen
  Charlotte Islands, but the Service did not make a determination
  regarding the goshawk’s status on Vancouver Island. The Service
  contended that the goshawk’s status on Vancouver Island did not matter
  because that area did not represent a significant portion of the
  goshawk’s range. The decision in this case upheld the Service’s
  determination regarding southeast Alaska and the Queen Charlotte
  Islands, finding that the Service had properly used the best available


27
  The Endangered Species Act defines an endangered species and a threatened species as a
species that is endangered or threatened throughout all “or a significant portion” of its
range. 16 U.S.C. §1532(6), (20). In fiscal year 2003, the Service lost another listing case on
similar grounds. See Defenders of Wildlife v. Norton, 239 F.Supp.2d 9 (D.D.C. 2002).
28
     Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).
29
 Southwest Center for Biological Diversity v. Norton, 2002 WL 1733618, No. 98-934 (D.D.C.
2002).
30
   The range to be considered is not limited to areas within the United States. Defenders of
Wildlife v. Norton, 258 F.3d at 1145.




Page 24               GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                                      science. However, the decision went on to conclude that Vancouver
                                      Island represented a significant portion of the goshawk’s range and that
                                      the case should be remanded to the Service to determine whether the
                                      goshawk was threatened or endangered on Vancouver Island.

The Service Has Delisted Few     In addition to removing recovered or extinct species from the list of
Species on the Basis of New      threatened or endangered species, the Service can also delist a species if
Scientific Information Showing   new information becomes available to show that protection under the act is
That Listing Was Not Warranted   not warranted. Typically, listing a species generates widespread attention
                                 to the species, additional funding for its study, and further research relating
                                 to the species or its habitat. As additional information is gathered, the
                                 Service or interested parties can initiate a delisting action if they believe
                                 the species no longer qualifies for listing. The Service follows similar
                                 rulemaking procedures to delist a species as for listing.

                                 Since the inception of the Endangered Species Act, the Service has delisted
                                 few species. As of March 2003, the Service had delisted 25 threatened and
                                 endangered domestic species of the more than 1,200 listed.31 Of the 25
                                 delistings, 10 resulted from new information—4 because new information
                                 showed the species to be more widespread or abundant than believed at
                                 the time the species was listed, and 6 for taxonomic revisions, meaning that
                                 the species was found not to be unique, but was a hybrid or simply a
                                 population of another common species making it ineligible for listing (see
                                 table 1). The remaining 15 delistings resulted from recovery efforts (7),
                                 extinction (7), or an amendment to the act that made the species no longer
                                 qualify for listing protection (1).32




                                 31
                                  An additional 8 foreign species have been delisted, 7 due to recovery and 1 due to
                                 erroneous data.
                                 32
                                  Amendments to the act in 1978 restricted protection for distinct population segments to
                                 vertebrates. The species listed was the Florida population of the Bahama swallowtail
                                 butterfly, and thus the act, as amended, required that the species be removed from the
                                 endangered species list. See 49 Fed. Reg. 34501 (Aug. 31, 1984).




                                 Page 25           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Table 1: Species Delisted on the Basis of New Information

Species name        Description         Date listed      Date delisted     Reason delisted
                                                                           Species more abundant or widespread
Dismal Swamp        A small, long-     Sept. 26, 1986    Feb. 28, 2000     Analyses completed after the species was listed showed
southeastern        tailed shrew found                                     that the species is actually widely distributed and uses a
shrew               in the                                                 wide variety of habitat types.
                    southeastern U.S.
McKittrick          A small herb     July 13, 1982       Sept. 22, 1993    Since the time of listing, additional surveys have shown the
pennyroyal          native to the                                          plant to be more widespread and abundant than previously
                    Guadalupe                                              known. Further, management actions were taken by various
                    Mountains in                                           federal agencies to provide protections to the plant.
                    southeastern New
                    Mexico and
                    northwestern
                    Texas
Tumamoc             A vine occurring in Apr. 29, 1986    June 18, 1993     Surveys and studies completed after the time of the listing
globeberry          south-central                                          showed that the range of the species is much larger than
                    Arizona and                                            originally known and the plant was more common and
                    extending                                              requires less habitat-specific areas than was believed at the
                    southward into                                         time of listing.
                    Mexico
Pine barrens        A frog known to     Nov. 11, 1977    Nov. 22, 1983     Subsequent studies completed after the time of listing
treefrog, Florida   occur in Florida,                                      revealed a number of new populations and a more
population          Alabama, New                                           extensive distribution of the species throughout Florida and
                    Jersey, and the                                        Alabama.
                    Carolinas
                                                                           Taxonomic revision
Umpqua River        A fish found in the Sept. 13, 1996   Apr. 26, 2000     An expanded review subsequent to listing showed that this
cutthroat trout     Umpqua River                                           population is part of another larger population of trout that
                    basin in coastal                                       did not warrant listing.
                    Oregon


Lloyd’s hedgehog A cactus primarily Oct. 26, 1979        June 24, 1999     Subsequent studies completed after the time of listing
cactus           occurring in Texas                                        showed evidence indicating that the cactus is not a distinct
                 and New Mexico                                            species but rather is a hybrid.



Cuneate bidens      A flowering         Feb. 17, 1984    Feb. 6, 1996      Subsequent studies after the time of listing culminated in a
                    Hawaiian plant                                         taxonomic revision of the genus. The plant was determined
                                                                           to be no more than an outlying population of another
                                                                           common species, which is not significantly threatened.
Spineless           A cactus known to Nov. 7, 1979       Sept. 22, 1993    Subsequent to listing, several evaluations did not recognize
hedgehog cactus     occur in                                               the cactus as a distinct species and the consensus of
                    southeastern Utah                                      botanists was that the cactus was only a form of another
                    and southwestern                                       type of cactus which was much more widespread, occurring
                    Colorado                                               from Utah and Colorado south into central Mexico.




                                              Page 26           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
(Continued From Previous Page)
Species name                Description                   Date listed     Date delisted     Reason delisted
Purple-spined               A cactus occurring Oct. 11, 1979              Nov. 27, 1989     Several reviews after listing discovered that the
hedgehog cactus             in southwestern                                                 characteristics of the purple-spined hedgehog cactus were
                            Utah                                                            simply morphological variations within the population of a
                                                                                            more common species found throughout the Mojave Desert
                                                                                            in southwestern Utah.


Mexican duck                A duck found      Mar. 11, 1967               July 25, 1978     After the listing of the Mexican duck, the duck was
                            throughout the                                                  determined to be a subspecies of the common mallard duck
                            southwestern U.S.                                               with a large zone of interbreeding between the two.
                            and Mexico                                                      Additional information also indicated that the loss of habitat
                                                                                            throughout its range was no longer a threat that would
                                                                                            qualify the species for listing.
Source: GAO analysis of U.S. Fish and Wildlife Service data.




Concerns Remain Over the                                        While external reviews indicate that the Service bases most critical habitat
Adequacy of Scientific                                          decisions on the best available science, concerns remain over the adequacy
                                                                of the information available to support the decisions. Experts and others
Information Used in Making
                                                                we spoke to explained that the amount of scientific information available
Critical Habitat Decisions                                      on a species’ habitat needs often may be limited, affecting the Service’s
                                                                ability to adequately define the habitat area required. Experts that peer
                                                                reviewed proposed critical habitat designations generally supported the
                                                                Service’s decisions, though many provided additional clarifications or
                                                                suggestions. While the courts have overturned few critical habitat
                                                                decisions on the basis of inadequate science, scientific disagreements over
                                                                these decisions continue.




                                                                Page 27          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Experts and Others Express        Experts and others knowledgeable about the Endangered Species Act have
Concerns About Critical Habitat   expressed concerns about the Service’s ability to designate critical habitat
Decisions                         for some listed species given the amount of information available on the
                                  species’ habitat needs. Unlike listing decisions, which are more
                                  straightforward—requiring the Service to answer only a “yes or no”
                                  question as to whether a species warrants listing—critical habitat decisions
                                  often require more detailed knowledge about a species’ life history and
                                  habitat needs and call for the Service to factor in the species’ special
                                  management needs in addition to the economic impacts of the designation.
                                  Service officials, experts, and others we spoke to agreed that the amount of
                                  scientific information available is limited and often affects the Service’s
                                  ability to adequately define the habitat essential to the species’
                                  conservation. While some interested parties stated that the Service
                                  designated areas too broadly and included lands unsuitable for several
                                  species, others said that the Service did not designate enough habitat for
                                  some listed species. According to Service officials, the resource and time
                                  constraints under which the Service’s scientists work often preclude them
                                  from collecting new information and, as a result, the information available
                                  may limit their ability to produce adequate critical habitat designations for
                                  some species. We found that most scientific disagreements surrounding
                                  recent critical habitat designations concerned whether the area chosen as
                                  critical habitat is sufficiently defined or whether the overall information
                                  used to support the designation is adequate. (See app. IV for information on
                                  the nature of scientific controversy surrounding the Service’s decisions to
                                  designate critical habitat for listed species.) In order to increase the
                                  amount of information available on which to base critical habitat
                                  designations, the Service and others, including the National Research
                                  Council, have recommended delaying designations until recovery plans are
                                  developed.33

Peer Reviewers Generally          The Service received 69 peer-review responses for 27 of the 37 critical
Support the Service’s Critical    habitat decisions finalized during fiscal years 1999 through 2002; it received
Habitat Designations, but Raise   no responses for 10 decisions (see app. III). Reviewers providing
Concerns about the Areas          comments in 17 of these decisions unanimously agreed with the Service’s
Selected                          scientific conclusions or otherwise indicated support for the critical habitat
                                  designation. In six decisions, while not stating explicit agreement with the
                                  Service’s use of science, the reviewer did not identify any major
                                  inadequacies or reasons for substantially modifying the proposed habitat.


                                  33
                                   National Research Council, Science and the Endangered Species Act (Washington D.C.:
                                  National Academy Press, 1995) 71-93.




                                  Page 28          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
In another decision, the Service reported that five peer reviewers
supported the decision and one was “neutral.” One or more peer reviewers
disagreed with the Service’s proposed critical habitat designations for the
remaining three decisions:

• Zapata bladderpod. The one reviewer responding to the proposed
  critical habitat designation of the Zapata bladderpod, a flowering plant
  that grows in Texas, stated that the areas selected on state and private
  lands were too small to support viable populations or the area was not
  always suitable habitat for the species. The reviewer also said it was
  premature to select those sites given the lack of information about the
  species.

• Cactus ferruginous pygmy-owl. The one reviewer responding to the
  proposed critical habitat designation for the cactus ferruginous pygmy-
  owl, a small bird found in the southwestern United States, disagreed
  with the designation on the grounds that there were too many
  unknowns about the species’ habitat requirements to support a
  determination about its critical habitat.

• Newcomb’s snail. Two of the six reviewers responding to the Service’s
  proposed critical habitat determination for the Newcomb’s snail (found
  only on the island of Kauai, Hawaii) disagreed with the proposed rule—
  the other four supported it. One of the reviewers who disagreed stated
  that there was inadequate information to make a determination because
  habitat requirements for the snail were limited to generalized
  observations in the field and thus were speculative. The reviewer said
  the designation did not identify the habitat features essential to the
  conservation of the species and was premature until additional
  biological information was obtained. Similarly, the other reviewer
  objecting to the determination did so largely because of his
  understanding that the process was based on few published scientific
  studies, and much was still unknown about the species’ habitat
  requirements.

Even though peer reviewers may have concurred with the Service’s critical
habitat designation, many provided clarifications or suggested
modifications. We analyzed the peer reviewers’ responses for 16 of the 27
critical habitat decisions the Service made. There were 35 peer-review
responses to these 16 decisions. Nearly all of the reviewers provided
specific clarifications on information contained in the rule or suggestions
for altering the habitat area selected. For instance, in many of the



Page 29       GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                                    responses, the reviewer agreed with the proposal in general, but stated that
                                    additional lands should be included in the critical habitat designation and
                                    cited scientific reasons for increasing habitat areas. In one decision, a
                                    reviewer generally supporting the proposed critical habitat of the arroyo
                                    toad (an endangered toad found in coastal and desert drainages in
                                    California) identified specific areas where he believed the toad ranged
                                    more widely and would therefore warrant additional critical habitat.
                                    Another reviewer, generally supporting the proposed critical habitat for the
                                    Great Lakes population of the piping plover (a small shorebird that occurs
                                    across North America), identified sites she believed should be added to the
                                    designation and areas she believed to be unsuitable for the species and
                                    therefore should be excluded from the designation.

Courts Have Overturned Few          As with listing decisions, and due in part to the deference the courts grant
Critical Habitat Decisions on the   to the Service, most litigation has not directly challenged the Service’s use
Basis of Inadequate Science         of science in making critical habitat determinations. Based on a review of
                                    federal court cases decided during fiscal years 1999 through 2002, we
                                    identified 11 cases in which a court issued an opinion regarding the
                                    Service’s critical habitat decisions. Most of these 11 cases dealt with
                                    nonscience issues, such as the Service’s failure to designate critical habitat
                                    for a listed species. However, the courts overturned critical habitat
                                    decisions on the basis of issues related to the use of scientific data in the
                                    following two cases:34

                                    • Rio Grande silvery minnow. In 2000, a federal court invalidated the
                                      critical habitat of the Rio Grande silvery minnow based in part on
                                      scientific grounds.35 Multiple groups, including the state of New Mexico,
                                      challenged the designation of critical habitat for the silvery minnow, a
                                      fish found exclusively in the Rio Grande River in the Southwest. The
                                      critical habitat designation for this fish consisted of a 163-mile stretch of
                                      the main stem of the Rio Grande River. The court ruled in favor of the
                                      plaintiffs because it found that the Service’s final rule had failed to (1)
                                      define with sufficient specificity what biological and physical features
                                      were essential to the species’ survival and recovery and (2) indicate


                                    34
                                     In fiscal year 2003, a court overturned one additional critical habitat decision of the
                                    Service partly on the basis of issues related to the use of scientific data. See Home Builders
                                    Association of Northern California v. United States Fish and Wildlife Service, No. CV F
                                    01-5722 AWI SMS (E.D.Cal. May 9, 2003).
                                    35
                                     Middle Rio Grande Conservancy District v. Babbitt, 206 F.Supp.2d 1156 (D.N.M. 2000),
                                    aff’d, 294 F.3d 1220 (10th Cir. 2002).




                                    Page 30           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
   where in each reach of the river such features existed. For example, the
   court said that the Service’s statement in the rule regarding the
   minnow’s need for “sufficient flowing water” provided vague
   generalities that stated little more than what is required for any fish
   species. As a result of this court ruling, the Service is in the process of
   redesignating critical habitat for this species.

• Cactus ferruginous pygmy-owl. In 2001, a court struck down the
  critical habitat designation for the cactus ferruginous pygmy-owl
  because, among other reasons, the designation was not supported by
  the best available scientific data.36 The final critical habitat for the
  pygmy-owl, a small bird found in the southwestern United States,
  consisted of over 700,000 acres of riparian and upland habitat in
  Arizona. The court noted that the determination of critical habitat is to
  be made on the basis of the “best scientific data available” and that this
  involves identifying geographic areas “essential to the conservation of
  the species.” The court then pointed out that systematic owl surveys
  had not yet been completed over the entire potential habitat in Arizona,
  and that the Service determined critical habitat by designating areas
  where the pygmy-owls had been sighted, areas that it thought would be
  consistent with the species’ known habitat, and all the land in between.
  The court also pointed out that, in addition to the areas actually
  occupied by the pygmy-owls, the Service had included areas where it
  thought they could live. The court appeared to conclude that, in order
  to include areas that were not presently occupied, the Service should
  have determined that such areas were in fact essential to the
  conservation of the species. Although the Service had already agreed to
  reconsider the economic analysis used in the critical habitat
  designation, the court concluded that a “broader reconsideration” of the
  critical habitat designation was necessary. The Service is in the process
  of redesignating critical habitat for the pygmy-owl.




36
   National Association of Homebuilders v. Norton, 2001 WL 1876349, No. 00-CV-903 (D.Ariz.
2001).




Page 31          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
The Service Has Failed   The Service’s critical habitat program currently faces a serious crisis that
                         extends well beyond the use of science in making decisions. Litigation now
to Address Known         dominates the program, leading the Assistant Secretary for Fish and
Problems with the        Wildlife and Parks in the Department of the Interior to recently declare that
                         the system for designating critical habitat is “broken” because it provides
Critical Habitat         little conservation benefit while consuming significant resources.
Program
                         A key court case in 1997 invalidated the Service’s position on when critical
                         habitat should be designated. The Endangered Species Act generally
                         requires the Service to designate critical habitat for listed species unless
                         the Service determines it is “not prudent,”37 and the Service’s regulations
                         spell out that it is not prudent to designate critical habitat if doing so would
                         not be “beneficial to the species.”38 As a result, prior to 1997, the Service
                         had designated critical habitat for only 113 of the 1,023 domestic species
                         that it had listed. The Service reasoned that designating critical habitat did
                         not benefit the species because the benefits that critical habitat provided
                         duplicated those benefits provided by listing the species.39 The 1997 court
                         case invalidated the Service’s reasoning, ruling that the Service’s
                         determination that it was not prudent to designate critical habitat for the
                         coastal California gnatcatcher, a songbird unique to coastal southern
                         California, was not justified.40 One of the reasons that the Service
                         concluded that it was not prudent to designate critical habitat was because
                         it believed that such a designation would not appreciably benefit the

                         37
                              16 U.S.C. §1533(a)(3).
                         38
                           50 C.F.R. §424.12(a)(1)(ii). The regulation also provides that it is not prudent when the
                         species is threatened by human activity and identification of the habitat can be expected to
                         increase the threat.
                         39
                           The Service’s reasoning is based on its reading of the law, as implemented by its
                         regulations. The benefit provided by a critical habitat designation is protection from federal
                         agency actions—the act requires federal agencies to consult with the Service to ensure that
                         any activities they carry out, fund, or authorize are not likely to result in the “destruction or
                         adverse modification” of a critical habitat. 16 U.S.C. §1536(a)(2). The act also requires
                         federal agencies to insure that their activities are not likely to “jeopardize the continued
                         existence” of a listed species. Id. Service regulations define these two terms somewhat
                         similarly. See 50 C.F.R. §402.02. The Service reasons that virtually any federal action that
                         would destroy or adversely modify a species’ critical habitat would also jeopardize the
                         species’ existence. The Service thus concludes that critical habitat designations do not
                         provide additional conservation benefit beyond that already afforded all listed species.
                         40
                          Natural Resources Defense Council v. United States Department of the Interior, 113 F.3d
                         1121 (9th Cir. 1997). See also Sierra Club v. United States Fish and Wildlife Service, 245
                         F.3d 434 (5th Cir. 2001).




                         Page 32              GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
species because most populations of gnatcatchers were found on private
lands to which the act’s critical habitat protections would not apply. The
court found that this reasoning improperly expanded what Congress had
intended to be a narrow exception to designating critical habitat. The court
concluded that the Service had disregarded “the clear congressional intent
that the imprudence exception be a rare exception.” Since then, court
orders and settlement agreements have compelled the Service to designate
critical habitat for species for which it had previously determined that it
was not prudent to do so.

Subsequently, a 2001 court case led the Service to reconsider some of its
critical habitat designations.41 The case involved the requirement of the act
that the Service consider the economic impact of designating a particular
area as critical habitat. According to the act, the Service may exclude areas
from critical habitat if it determines that the benefits of excluding the area
outweigh the benefits of including the area as critical habitat unless
excluding it would result in the extinction of the species. For example, in
1997, the Service designated critical habitat for the southwestern willow
flycatcher, a small bird that nests in riparian areas in the southwestern
United States. Because the Service believed that designating critical
habitat would not result in additional restrictions on activities beyond
those resulting from listing the species, it reasoned that there would be no
significant economic impact associated with designating critical habitat for
the flycatcher.42 However, the court disagreed. It found that since the act
clearly barred the Service from considering economic impacts in listing
decisions, but required they be considered in critical habitat decisions, the
Service was not free to ignore the economic impacts of listing a species
when designating critical habitat for that species. The court held that the
Service had to consider all of the economic impacts of a critical habitat
determination, regardless of whether those impacts were also attributable
to listing or other causes. Since this decision was issued, court orders and
settlement agreements have prompted the Service to re-issue some critical
habitat decisions to comply with this standard.




41
   New Mexico Cattle Growers v. United States Fish and Wildlife Service, 248 F.3d 1277 (10th
Cir. 2001).
42
 The Service’s approach was premised on the idea that designating critical habitat does not
provide protection to a species beyond the protection already provided by listing the
species. See footnote 39.




Page 33           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Since these two court rulings, the Service’s critical habitat program has
become dominated by litigation. Each critical habitat designation made
since 1997 has resulted from a court order or a settlement agreement, and
the Service expects that it will have to dedicate significant resources
through fiscal year 2008 to comply with existing court orders and
settlement agreements. The department believes that this flood of
litigation over critical habitat designation is preventing the Service from
taking what it deems to be higher priority activities, such as addressing the
approximately 250 “candidate” species waiting to go through the listing
process (listing and critical habitat activities are funded under the same
line item in the department’s budget). Service officials noted that there are
other court decisions that may cause additional problems for the program
in the future.

The Service has been aware of problems with its critical habitat program
for a number of years. The Service noted significant problems with its
critical habitat program in 1997,43 and in 1999 it issued a Federal Register
notice announcing that its system for designating critical habitat was not
working and soliciting comments on its intention to develop policy or
guidance and/or to revise regulations or seek legislative corrections to
clarify the role of critical habitat in conserving endangered species.44 In
particular, the Service stated its intention to consider when critical habitat
designation would provide additional protection beyond that provided by
listing. The Service also announced its intention to streamline the process
for designating critical habitat to be more cost-effective and in line with the
amount of conservation benefit provided to the species. In particular, the
Service declared that it needs to develop a much less labor-intensive
process for describing the areas proposed for designation as critical
habitat. The Service also stated that it can streamline and make more cost-
effective the process to conduct the economic analyses required to
designate critical habitat and that it can more efficiently conduct the
analyses required under the National Environmental Policy Act. The
Service also noted that critical habitat litigation and related court orders

43
 In the 1997 final rule designating critical habitat for the southwestern willow flycatcher,
the Service stated that it was unable to provide the level of analysis and completeness that it
has in previous rules because of a court imposed deadline—the result of the Service’s
previous determination that critical habitat provided little additional benefit to the species.
Even with a minimal level of analysis and completeness, the Service noted that it had to
disrupt significant work at the field office, regional, and national levels in order to provide
the resources to complete the rule. See 62 Fed. Reg. 39129 (July 22, 1997).
44
     See 64 Fed. Reg. 31871 (June 14, 1999).




Page 34              GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
were consuming much of the resources devoted to listing and critical
habitat, and delaying other activities that it considered higher priority, such
as addressing petitions submitted by citizens, working with landowners on
conservation projects, and completing final actions to list species.
However, no additional guidance or revisions were issued, and the Service
continues to follow the same unworkable system.

The Department of the Interior recently echoed concerns with the Service’s
critical habitat program and the limited conservation benefit it provides to
species. In April 2003, the Assistant Secretary for Fish and Wildlife and
Parks testified before Congress on the critical habitat program, stating that
it is “broken” and in “chaos.” He noted that litigation support is consuming
valuable resources and that complying with court orders and settlement
agreements has sharply reduced the Service’s ability to prioritize its listing
and critical habitat actions. Service scientists working in field offices
expressed similar concerns to us about the critical habitat program, raising
questions about the purpose of critical habitat and the designation process.
An attorney in the Solicitor’s office told us that guidance would improve the
Service’s critical habitat decisions and make the decisions more defensible
in court in the future.

Despite the long-standing concerns over the role and implementation of the
critical habitat program, the Service has done little to resolve them. In a
report issued in June 2002, we recognized the impact that litigation was
having on the critical habitat program and recommended that the Service
expedite its efforts to develop guidance on designating critical habitat for
listed species to help reduce the influence of future litigation.45 Better
guidance would help reduce the number of legal challenges to the Service’s
critical habitat designations and allow the Service to better withstand legal
challenges when they arise. While the Service agreed with our
recommendation, it responded that work on critical habitat guidance had
been delayed pending Service efforts to complete higher priority tasks,
including court orders to complete listing and critical habitat decisions and
did not commit to a schedule for issuing the guidance. An official with
Interior’s Solicitor’s office told us that one factor limiting the agency’s
ability to complete these tasks is the Service’s inability to devote significant
listing and critical habitat resources to policy initiatives without risking


45
 U.S. General Accounting Office, Endangered Species Program: Information on How
Funds Are Allocated and What Activities Are Emphasized, GAO-02-581 (Washington, D.C.:
June 25, 2002).




Page 35         GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                     contempt of court because such action would force the agency to divert
                     resources away from activities required to comply with court orders.



Conclusion           The Service’s critical habitat program faces a serious crisis because of
                     extensive litigation that is consuming significant program resources. The
                     Service has recognized this crisis for many years but has done little to
                     address it. Accordingly, in June 2002, we recommended that the Service
                     expedite its efforts to develop guidance on designating critical habitat to
                     reduce the influence of future litigation. While the Service agreed with our
                     recommendation, it has done little to develop this guidance. Service
                     officials complain that they are locked in a vicious cycle, precluded from
                     developing the guidance for fear of being held in contempt of court for
                     diverting resources away from activities already required by existing court
                     orders. While the Service clearly faces a dilemma, it is imperative that it
                     clarify the role of critical habitat and develop guidance for how and when it
                     should be designated, and seek regulatory and/or legislative changes that
                     may be necessary to provide threatened and endangered species with the
                     greatest conservation benefit in the most cost-effective manner.



Recommendation for   Because the Service’s critical habitat program faces serious challenges, we
                     recommend that the Secretary of the Interior require the Service to provide
Executive Action     clear strategic direction for the critical habitat program, within a specified
                     time frame, by clarifying the role of critical habitat and how and when it
                     should be designated, and recommending policy/guidance, regulatory,
                     and/or legislative changes necessary to provide the greatest conservation
                     benefit to threatened and endangered species in the most cost-effective
                     manner.



Agency Comments      We provided the Department of the Interior with a draft of this report. The
                     department did not provide comments on the draft.


                     As agreed with your offices, unless you publicly announce the contents of
                     this report earlier, we plan no further distribution until 30 days from the
                     report date. At that time, we will send copies of this report to the Secretary
                     of the Interior and other interested parties. We also will make copies




                     Page 36        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
available to others upon request. In addition, the report will be available at
no charge on the GAO Web site at http://www.gao.gov.

If you or your staffs have any questions, please call me at (202) 512-3841.
Key contributors to this report are listed in appendix V.




Barry T. Hill
Director, Natural Resources
 and Environment




Page 37        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix I

Objectives, Scope, and Methodology                                                                            AA
                                                                                                               ppp
                                                                                                                 ep
                                                                                                                  ned
                                                                                                                    n
                                                                                                                    x
                                                                                                                    id
                                                                                                                     e
                                                                                                                     x
                                                                                                                     Iis




              This report assesses the U.S. Fish and Wildlife Service’s consideration and
              use of science in its decisions to list species as threatened or endangered
              and to designate critical habitat.1 Specifically, we were asked to review the
              extent to which (1) the Service’s policies and practices ensure that listing
              and critical habitat decisions are based on the best available science and
              (2) outside reviewers have supported the scientific data and conclusions
              that the Service uses to make listing and critical habitat decisions. In no
              instance did we attempt to evaluate scientific data and render an opinion.
              For this evaluation, we define “science” as the collection and interpretation
              of biological information, such as the identification of a species and its
              habitat needs. This definition does not include the legal policies and
              definitions found in the law or used to implement or interpret the
              Endangered Species Act. However, we acknowledge that there is not
              always a clear distinction between the interpretation of biological
              information and the policies and definitions used to interpret the act.

              In meeting our first objective, we examined the Service’s decision-making
              process to determine the extent to which it would likely lead to decisions
              based on the best available science. We reviewed the Service’s policies and
              procedures related to how it makes these decisions and discussed the
              process and procedures with key officials at the Service’s headquarters and
              with staff in the Service’s regional and field offices to determine their
              knowledge of the process and how they implemented it. We also spoke
              with peer-review experts and examined the literature on the processes that
              organizations use to peer review their decisions and products to assess the
              reasonableness of the Service’s policy to peer review proposed listing and
              critical habitat decisions.

              In meeting both objectives, we obtained from the Service a list of the
              decisions to list species and designate critical habitat that the Service
              finalized during fiscal years 1999 through 2002. To verify the completeness
              of the provided list of decisions, we compared it with a second independent
              database maintained by the Service. We identified one decision that was
              not on the original list provided to us by the Service. We included that
              decision in our analysis. Based on this information, we identified 101 final



              1
               We focused on the U.S. Fish and Wildlife Service even though it shares responsibility with
              the National Marine Fisheries Service for implementing the Endangered Species Act
              because the Fish and Wildlife Service has lead responsibility, as of April 2003, for 1,237 of
              the 1,263 listed species in the United States. The two Services share responsibility for 6
              species.




              Page 38           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix I
Objectives, Scope, and Methodology




decisions to list or designate critical habitat that were published in the
Federal Register during fiscal years 1999 through 2002.

We examined the Federal Register notices for the 101 decisions to
determine (1) the extent to which the Service complied with its peer-review
policy to request at least three peer reviewers to review each decision, (2)
the number that reviewed each decision, and (3) whether or not the
reviewer(s) supported the decision. In 61 of the 101 decisions, we
extracted this information from the Federal Register. For the remaining 40
decisions, we contacted the 18 field offices responsible for the decisions
and requested that they provide the peer-review documentation, including
copies of the peer reviewers’ responses. The Service provided us with the
missing information in all but seven instances; in five of those instances
partial information was available.

To assess the accuracy of the information reported in the Federal Register
notices, we requested that the Service provide documentation for the peer-
review information, including peer reviewers’ responses, for 8 of the 61
decisions for which complete information was available in the Federal
Register notice. We selected these 8 decisions in the following way. In
order to minimize the burden on the Service’s field staff, we limited our
universe to the decisions that were the responsibility of the18 field offices
that we already intended to contact. These offices were responsible for 48
of the 61 decisions for which there was complete information in the
Federal Register notice. We then randomly chose 1 decision from each of
the three offices with the most decisions. Collectively these offices were
responsible for 25 of the 48 decisions. We also randomly chose 5 of the
remaining 23 decisions. We compared the documentation provided to us
with the information in the corresponding Federal Register notices. We
found no discrepancies. However, we did find minor discrepancies
between other Federal Register notices and the documentation the Service
provided to us. We reconciled these discrepancies. Additionally, based on a
limited review, we found the Service’s procedures reasonable for ensuring
that its database contains accurate information. For example, the Service
regularly samples data recently added to the database for accuracy. We did
not determine the extent to which any of the Service’s final decisions
reflected the comments and opinions of the peer reviewers.

In addition to determining whether peer reviewers supported the decision
they reviewed, we performed a content analysis on the peer-review
responses for 16 critical habitat decisions to more fully characterize the
opinions of the peer reviewers. We chose to perform a content analysis on



Page 39          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix I
Objectives, Scope, and Methodology




the responses to critical habitat decisions because these decisions are
open-ended, requiring the Service to determine how much critical habitat
to designate and where that habitat should be located. There were 35 peer-
review responses for these 16 decisions.

To determine how well the Service’s listing and critical habitat decisions
are withstanding legal challenges to the science supporting those
decisions, we used common legal research methods to identify federal
court cases related to the Service’s listing and critical habitat decisions. We
identified and reviewed 25 cases that were decided during fiscal years 1999
through 2002 that involved a challenge to a Service listing decision and/or
critical habitat decision, and in which the court rendered a decision on the
listing or critical habitat issue.

To determine the extent to which the Service has delisted species because
new scientific information surfaced indicating that listing was not
originally warranted, we used information from the Service’s publicly
accessible database. We included in our analysis all decisions to delist
species from the inception of the act through March 2003. We compared
this information with information published in the Federal Register. We
found no discrepancies.

Finally, to get a fuller understanding of the degree of scientific controversy
regarding listing and critical habitat decisions, we solicited the opinions of
experts and others and reviewed published studies. To illustrate the nature
of scientific controversy regarding listing and critical habitat decisions, we
developed a list of decisions for which there was some degree of scientific
controversy. We developed this list by asking experts in the private,
academic, government, and nonprofit sectors spanning the political
spectrum to identify recent decisions that were particularly controversial
due to scientific disagreements and briefly explain the nature of the
controversy. We limited our analysis to decisions finalized during fiscal
years 1993 through 2002. In addition, we asked each expert for the names
of other experts who could help us develop our list. We stopped contacting
experts when we began to get repetitive responses. We then identified
common issues related to the controversies to characterize the types of
disagreements involved with each of the decisions. We based this on the
information provided by the experts and information published in the
Federal Register. Finally, we presented the list of decisions and related
information to officials at the Service and at the National Academy of
Sciences for their opinions on the list of decisions and how we




Page 40          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix I
Objectives, Scope, and Methodology




characterized them. The officials generally agreed with the information we
presented.

Additionally, in the course of our work, it became apparent that litigation
was dominating the Service’s critical habitat program, and we discuss these
circumstances in our report. Specifically, we describe how several key
court cases are affecting the program.

We performed our work from September 2002 through June 2003 in
accordance with generally accepted government auditing standards.




Page 41          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix II

Overview of The Endangered Species Act                                                             Appendx
                                                                                                         Ii




              The Endangered Species Act was passed by Congress to provide a means to
              conserve the ecosystems upon which endangered and threatened species
              depend and to conserve and recover imperiled species. The act was passed
              in 1973 and replaced earlier laws, which provided for a list of endangered
              species but gave them little meaningful protection. While significant
              amendments were enacted in 1978, 1982, and 1988, the overall framework
              of the act has remained essentially unchanged. The Department of the
              Interior delegated its responsibility for the act to the U.S. Fish and Wildlife
              Service (Service), which established an endangered species program to
              implement the requirements of the act. The Service is responsible for all
              land-dwelling species, freshwater species, some marine mammals, and
              migratory birds. The Department of Commerce, which has delegated its
              responsibility to the National Marine Fisheries Service, is responsible for
              implementing the act for marine species including anadromous (both
              freshwater and ocean dwelling) fish.

              The act provides numerous provisions to protect and recover species at
              risk of extinction. However, before a plant or animal species is eligible to
              benefit from most of these provisions, it must first be added to the Federal
              List of Endangered and Threatened Wildlife and Plants. Once on the list,
              key provisions of the act, including critical habitat, recovery plans,
              consultations with federal agencies, and habitat conservation plans, are
              designed to assist in recovering the species so that it can then be removed
              from the list.




              Page 42        GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                     Appendix II
                     Overview of The Endangered Species Act




Listing Species as   Under the act, species may be listed as either endangered or threatened.
                     An endangered species is any species of animal or plant that is in danger of
Endangered or        extinction throughout all or a significant portion of its range. A threatened
Threatened           species is any species of animal or plant that is likely to become
                     endangered within the foreseeable future throughout all or a significant
                     portion of its range. All species of plants and animals (except pest insects)
                     are eligible for listing as endangered or threatened. As of June 2003, there
                     were a total of 1,821 listed species; 1,504 species on the endangered species
                     list, 987 of which occur in the United States; and 317 threatened species,
                     276 of which occur in the United States.1

                     The decision to list a species must be based solely on the best available
                     scientific and commercial data. Using these data, the Service must
                     determine whether a species should be listed by analyzing its status based
                     on the following factors: (1) current or threatened destruction,
                     modification, or curtailment of a species habitat or range; (2) over
                     utilization of the species for commercial, recreational, scientific, or
                     educational purposes; (3) disease or predation; (4) inadequacy of existing
                     regulatory mechanisms; and (5) other natural or manmade factors affecting
                     the species’ continued existence. The Service follows a rigorous process to
                     determine whether to list a species. A final decision to list a species is
                     published in the Federal Register.

                     The Service may issue emergency regulations to list a species without
                     complying with the normal regulatory process if it finds that an emergency
                     poses a significant risk to the well-being of any species. Emergency
                     regulations take effect immediately upon publication in the Federal
                     Register and are effective for 240 days.

                     The Service also maintains a list of candidate species. Candidate species
                     are species for which substantial information is available to support a
                     listing proposal, but have not yet been proposed for listing. The Service
                     maintains this list for a variety of reasons, including (1) to provide advance
                     knowledge of potential listings that could affect decisions of environmental


                     1
                      The List of Endangered and Threatened Wildlife and Plants created under the act identifies
                     listed species as either domestic or foreign. The Service’s Endangered Species Program
                     deals primarily with domestic species found in the U.S. and U.S. territories, while the
                     International Affairs Program of the Service deals primarily with foreign endangered
                     species—including issuing permits for their import or export and representing the Service
                     under the Convention on International Trade in Endangered Species (CITES).




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                   Appendix II
                   Overview of The Endangered Species Act




                   planners and developers, (2) to solicit input from interested parties to
                   identify those candidate species that may not require protection under the
                   act or additional species that may require the act’s protections, and (3) to
                   solicit information needed to prioritize the order in which species will be
                   proposed for listing. The Service is required to publish a notice of review
                   annually in the Federal Register to solicit new information on the status of
                   candidate species. The Service works with parties, such as states and
                   private partners, to carry out conservation actions—often called Candidate
                   Conservation Agreements—for candidate species to prevent their further
                   decline and possibly eliminate the need to list them as endangered or
                   threatened. As of June 2003, there were 251 candidate species, many of
                   which have held that status for more than a decade.



Critical Habitat   The Service is generally required to designate critical habitat at the time a
                   species is listed as endangered or threatened. Critical habitat is the
                   specific geographic area essential for the conservation of a threatened or
                   endangered species and that may require special management
                   considerations and protection. Critical habitat contains physical and
                   biological habitat features such as: (1) space for individual and population
                   growth and for normal behavior; (2) cover or shelter, food, water, air, light,
                   minerals, or other nutritional or physiological requirements; (3) sites for
                   breeding and rearing offspring; and (4) habitats that are protected from
                   disturbances or are representative of the historic geographical and
                   ecological distributions of a species. Critical habitat may also include
                   areas not occupied by the species at the time of listing but that are essential
                   to the conservation and recovery of the species. Unlike the decision to list
                   a species as endangered or threatened, a final designation of critical habitat
                   is to be made on the basis of not only the best scientific data available but
                   also taking into consideration the economic and other effects of making the
                   decision. If the benefits of excluding an area outweigh the benefits of
                   including it, the Service may exclude an area from critical habitat, unless
                   the exclusion would result in the extinction of the species.

                   The Service may take up to an additional year after listing a species to
                   designate critical habitat if it finds that critical habitat is “not
                   determinable.” Critical habitat is not determinable when information
                   sufficient to perform the required analyses of the impacts of the
                   designation of critical habitat is lacking or the biological needs of the
                   species are not sufficiently known to permit identification of an area as
                   critical habitat. The Service does not designate critical habitat if it
                   determines that doing so would be “not prudent.” It would not be prudent



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                     Appendix II
                     Overview of The Endangered Species Act




                     to designate critical habitat if (1) identifying the habitat is expected to
                     increase the threat to the species or (2) designating an area as critical
                     habitat is not expected to benefit the species.



Recovery Plans       Once a species is listed, the act requires the Service to develop a recovery
                     plan for the species. Recovery plans identify, justify, and schedule the
                     research and management actions necessary to reverse the decline of a
                     species and ensure its long-term survival. Recovery plans must be
                     developed for all listed species, unless such a plan would not benefit the
                     species. Although the act does not specify time frames for developing or
                     implementing the recovery plan or for recovering the species, the Service
                     has as a goal of developing recovery plans within 1 year and having
                     approved plans within 2½ years of a species’ listing. The Service solicits
                     comments from state and federal agencies, experts and the public on draft
                     recovery plans during a formal public comment period announced in the
                     Federal Register. The Service periodically reviews approved recovery
                     plans to determine if updates or revisions are needed. As of June 2003,
                     1000 species had approved recovery plans.



Consultations with   Federal agencies are required to consult with the Service if their actions
                     may affect listed species. The goal of the consultation process is to identify
Federal Agencies     and resolve conflicts between the protection and enhancement of listed
                     species and proposed federal actions. The act requires that all federal
                     agencies consult with the Service to ensure that any activities agencies
                     permit, fund, or conduct are not likely to jeopardize the continued
                     existence of a listed species or adversely modify its critical habitat.
                     Federal agencies may informally consult with the Service to determine
                     whether their actions may affect listed species and must proceed to formal
                     consultations once they determine that their actions may adversely affect a
                     listed species or its habitat. The act requires a formal consultation to be
                     completed in 90 days, unless the Service and the federal agency mutually
                     agree to an extension, with the applicant’s consent. The Service is to issue
                     a “biological opinion” within 45 days of the conclusion of formal
                     consultation that reviews the potential effects of the proposed action on
                     listed species and/or critical habitat. The Service must base the biological
                     opinion on the best available biological information. If the Service finds
                     that the action would appreciably reduce the likelihood of the species’
                     survival and recovery, it issues a jeopardy biological opinion. Jeopardy
                     opinions include reasonable and prudent alternatives that define



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Appendix II
Overview of The Endangered Species Act




modifications to the agency’s proposed action that enable it to continue
and still be consistent with the act’s requirements for protecting species.
Following the issuance of the biological opinion, the federal agency
determines whether it will comply with the opinion or seek an exemption
from the act’s requirements.

Proposed federal agency actions that have been determined to cause
jeopardy to any listed species may receive an exemption from the act by
the Federal Endangered Species Committee (also referred to as the “God
Squad”). The Endangered Species Committee is comprised of seven
members: the Secretary of Agriculture, the Secretary of the Army,
Chairman of the Council of Economic Advisors, the Administrator of the
Environmental Protection Agency, the Secretary of the Interior, the
Administrator of the National Oceanic and Atmospheric Administration,
and one individual from the affected state. An exemption is granted if at
least five members of the Endangered Species Committee determine that,
among other things, the action is of regional or national significance, that
the benefits of the action clearly outweigh the benefits of conserving the
species, and that there are no reasonable and prudent alternatives to the
action. The Endangered Species Committee has been convened only three
times since its creation in 1978—the Tellico Dam for the snail darter fish in
Tennessee, the Grayrocks Dam in Wyoming for the whooping crane, and
Bureau of Land Management (BLM) timber sales for the spotted owl in
Oregon. Only two exemptions were granted. One was in regard to the
Grayrocks dam and the other was to approve 13 timber sales sought by
BLM (which was withdrawn before the completion of appeals). The Tellico
dam application was denied but was later allowed by Congress to proceed.2
In addition, three other applications were received but were subsequently
dismissed or withdrawn before deliberations took place.




2
 Energy and Water Development Appropriations Act of 1980, Pub. L. No. 96-69, 93 Stat. 437,
449 (1979).




Page 46          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                       Appendix II
                       Overview of The Endangered Species Act




Habitat Conservation   The act generally prohibits any person from “taking” an animal species
                       listed as endangered.3 “Taking” or “take” means to harass, harm, pursue,
Plans                  hunt, shoot, wound, kill, trap, capture or collect a listed species, and under
                       Service guidelines, includes the destruction of the species’ habitat.
                       However, in 1982, Congress amended the act to include a process whereby
                       the Service may issue permits that allow private individuals to incidentally
                       take listed species. Incidental take is the take of any federally listed
                       species that is incidental to, but not the purpose of, otherwise lawful
                       activities. Permit applicants are required to submit a habitat conservation
                       plan, which includes measures the applicant will take to minimize and
                       mitigate the impacts that may result from the taking. The Service is
                       required to publish a notice in the Federal Register soliciting comments
                       from interested parties on each application for a permit and its
                       accompanying habitat conservation plan. As of April 2003, 416 habitat
                       conservation plans have been approved. The act prohibits the Service from
                       issuing a permit if doing so would appreciably reduce the likelihood of the
                       survival and recovery of the species in the wild. The incidental taking of a
                       listed species resulting from federal agency actions may also be allowed
                       under the act and would be addressed through the consultation process.




                       3
                        16 U.S.C. §1538(a)(1)(B), (C). The Endangered Species Act prohibits the taking of
                       endangered, but not threatened, species. However, the act authorizes the Service to, by
                       regulation, prohibit the taking of a threatened species. The Service has issued a regulation
                       extending the take prohibitions to threatened species, except for those covered by a specific
                       rule, exemption, or permit. 50 C.F.R. §17.31.




                       Page 47           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix III

Peer Reviewers’ Responses to Listing and
Critical Habitat Decisions for Fiscal Years
1999 through 2002                                                                                                                 Appendx
                                                                                                                                        iI




                                                  Peer reviewers                        Peer reviewers’ response
Federal Register title and                                                                                              Unknown/
number                            Date             Asked    Responded                  Agree    Disagree     Neutral      unclear
Listing decisions
Determination of Endangered       Oct. 6,
or Threatened Status for Five     1998
Desert Milk-vetch Taxa From
California (63 FR 53596)                               3             2                      2
Determination of Endangered or Oct. 13,
Threatened Status for Four     1998
Southwestern California Plants
from Vernal Wetlands and Clay
Soils (63 FR 54975)                                    3             1                      1
Determinations of Endangered      Oct. 13,
or Threatened Status for Four     1998
Plants (63 FR 54938)                                   3             2                      2
Endangered or Threatened          Oct. 13,
Status for Three Plants from      1998
the Chaparral and Scrub of
Southwestern California
(63 FR 54956)                                          3             0
Endangered Status for Three       Oct. 28,
Aquatic Snails, and Threatened    1998
Status for Three Aquatic Snails
in the Mobile River Basin of
Alabama (63 FR 57610)                                  4             1                      1
Determination of Threatened       Nov. 3,
Status for Virginia Sneezweed     1998
(Helenium virginicum) a Plant
From the Shenandoah Valley of
Virginia (63 FR 59239)                                 3             2                      2
Final Rule to List the           Nov. 23,
Arkansas River Basin             1998
Population of the Arkansas River
Shiner (Notropis girardi) as
Threatened (63 FR 64772)                               20            1                      1
Final Rule To List the            Dec. 15,
Topeka Shiner as Endangered       1998
(63 FR 69008)                                          3             1                      1
Determination of Endangered     Dec. 18,
Status for the St. Andrew Beach 1998
Mouse (63 FR 70053)                                    4             4                      4
Determination of Threatened       Feb. 8,
Status for the Sacramento         1999
Splittail (64 FR 5963)                                 3             0




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                                             Appendix III
                                             Peer Reviewers’ Responses to Listing and
                                             Critical Habitat Decisions for Fiscal Years
                                             1999 through 2002




(Continued From Previous Page)
                                                   Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                 Unknown/
number                            Date              Asked     Responded                    Agree   Disagree     Neutral      unclear
Determination of Endangered       Mar 17,
Status for Catesbaea              1999
Melanocarpa (64 FR 13116)                                 4               0
Final Rule To List the Flatwoods Apr. 1,
Salamander as a Threatened       1999
Species (64 FR 15691)                                     4               3                    3
Threatened Status for the         May 26,
Plant Thelypodium howellii        1999
ssp. spectabilis (Howell’s
spectacular thelypody)
(64 FR 28393)                                             3               2                    2
Determination of Endangered      May 26,
Status for the Plant Eriogonum 1999
apricum (inclusive of vars.
apricum and prostratum) (Ione
Buckwheat) and Threatened
Status for the Plant
Arctostaphylos myrtifolia (64 FR
28403)                                                    3               1                    1
Threatened Status for Lake Erie Aug. 30,
Water Snakes (Nerodia sipedon 1999
insularum) on the Offshore
Islands of Western Lake Erie (64
                                                          a
FR 47126)
Final Endangered Status for     Sep. 3,
10 Plant Taxa From Maui Nui, HI 1999
(64 FR 48307)                                             6               0
Final Rule to List the Devils  Oct. 20,
River Minnow as Threatened (64 1999
FR 56596)                                                 5               4                    4
Final Rule to List Astragalus     Oct. 20,
desereticus (Desert milk-vetch)   1999
as Threatened (64 FR 56590)                               3               3                    3
Determination of Threatened       Oct. 20,
Status for the Plant Helianthus   1999
paradoxicus (Pecos Sunflower)
(64 FR 56582)                                             3               2                    2
Determination of Threatened       Nov. 1,
Status for Bull Trout in the      1999
Coterminous United States
(64 FR 58910)                                             6               1                    1




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                                            Appendix III
                                            Peer Reviewers’ Responses to Listing and
                                            Critical Habitat Decisions for Fiscal Years
                                            1999 through 2002




(Continued From Previous Page)
                                                  Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                Unknown/
number                           Date              Asked     Responded                    Agree   Disagree     Neutral      unclear
Determination of Endangered      Nov. 22,
Status for the Plant             1999
Lesquerella thamnophila
(Zapata Bladderpod)
(64 FR 63745)                                          29                3                    3
Final Endangered Status for the Dec. 10,
Plant Fritillaria               1999
gentneri (Gentner’s fritillary)
                                                         b
(64 FR 69195)                                                            4                    4
Determination of Endangered      Dec. 22,
Status for Sidalcea oregana var. 1999
calva (Wenatchee Mountains
Checker-Mallow) (64 FR 71680)                            3               3                   3c
Final Rule To List the Sierra    Jan. 3,
Nevada Distinct Population       2000
Segment of the California
Bighorn Sheep as Endangered
(65 FR 20)                                               3               3                    3
Final Rule To List Two Cave    Jan. 14,
Animals From Kauai, Hawaii, as 2000
Endangered (65 FR 2348)                                  3               1                    1
Endangered Status for Erigeron Jan. 25,
decumbens var. decumbens            2000
(Willamette Daisy) and Fender’s
Blue Butterfly (Icaricia icarioides
fenderi) and Threatened Status
for Lupinus sulphureus ssp.
                                                         b
Kincaidii (65 FR 3875)                                                   6                    6
Endangered Status for the Plant Jan. 25,
Plagiobothrys hirtus (Rough     2000
                                                         b
Popcornflower) (65 FR 3866)                                              2                    2
Determination of Endangered      Jan. 26,
Status for Two Larkspurs From    2000
Coastal Northern California
(65 FR 4156)                                             3               3                    3
Determination of Threatened      Jan. 26,
Status for Newcomb’s Snail       2000
From the Hawaiian Islands
(65 FR 4162)                                             3               3                    3
Determination of Endangered      Feb. 1,
Status for Blackburn’s Sphinx    2000
Moth from the Hawaiian Islands
(65 FR 4770)                                             3               0




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                                            Appendix III
                                            Peer Reviewers’ Responses to Listing and
                                            Critical Habitat Decisions for Fiscal Years
                                            1999 through 2002




(Continued From Previous Page)
                                                  Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                Unknown/
number                           Date              Asked     Responded                    Agree   Disagree     Neutral      unclear
Determination of Endangered      Feb. 3,
Status for the Plant Yreka Phlox 2000
from Siskiyou County, CA (65
FR 5268)                                                 3               1                    1
Determination of Endangered      Feb. 9,
Status for the Plant Thlaspi     2000
californicum (Kneel and
Prairie Penny-Cress) From
Coastal Northern California
(65 FR 6332)                                             3               0
Determination of Endangered      Feb. 16,
Status for Sidalcea keckii       2000
(Keck’s checker-mallow)
From Fresno and Tulare
Counties, CA (65 FR 7757)                                3               2                    2
Final Rule to List the Riparian  Feb. 23,
Brush Rabbit and the             2000
Riparian, or San Joaquin Valley,
Woodrat as Endangered (65 FR
8881)                                                    4               2                    2
Endangered Status for the        Feb. 25,
Armored Snail and Slender        2000
Campeloma (65 FR 10033)                                  2               0
Threatened Status for            Mar. 20,
Holocarpha macradenia (Santa     2000
Cruz tarplant) (65 FR 14898)                             4               4                    3                       1
Determination of Threatened      Mar. 20,
Status for Chlorogalum           2000
purpureum (Purple Amole),
a Plant From the South
Coast Ranges of California
(65 FR 14878)                                            3               2                    2
Final Rule for Endangered        Mar. 20,
Status for Four Plants From      2000
South Central Coastal California
(65 FR 14888)                                            3               2                    2
Determination of Threatened      Mar. 24,
Status for the Contiguous        2000
U.S. Distinct Population
Segment of the Canada Lynx
(65 FR 16052)                                            6               2                    2
Determination of Threatened      Apr. 5,
Status for the Northern Idaho    2000
Ground Squirrel (65 FR 17779)                            1               1                                                         1b




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                                              Appendix III
                                              Peer Reviewers’ Responses to Listing and
                                              Critical Habitat Decisions for Fiscal Years
                                              1999 through 2002




(Continued From Previous Page)
                                                    Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                  Unknown/
number                            Date               Asked     Responded                    Agree   Disagree     Neutral      unclear
Threatened Status for the Santa Apr. 12,
Ana Sucker (65 FR 19686)        2000                       4               2                    2
Final Rule To List as              Apr. 18,
Endangered the O’ahu ‘Elepaio 2000
From the Hawaiian Islands and
Determination of Whether
Designation of Critical Habitat Is
Prudent (65 FR 20760)                                      4               2                    2
Final Rule To List the Alabama May 5,
Sturgeon as Endangered (65 FR 2000
26438)                                                     5               5                    4           1
Final Rule To List the            Jul. 31,
Short-Tailed Albatross            2000
as Endangered in the
United States (65 FR 46643)                                5               3                    3
Final Rule To List the Santa       Sep. 21,
Barbara County Distinct            2000
Population of the California Tiger
Salamander as Endangered (65
FR 57242)                                                  8               6                    6
Endangered and Threatened         Oct. 18,
Wildlife and Plants:              2000
Threatened Status for the
Colorado Butterfly Plant
(Gaura neomexicana
ssp. coloradensis) From
Southeastern Wyoming,
Northcentral Colorado, and
Extreme Western Nebraska (65
FR 62302)                                                  3               2                    2
Final Endangered Status for a     Nov. 17,
Distinct Population Segment of    2000
Anadromous Atlantic Salmon
(Salmo salar) in the Gulf of
Maine (65 FR 69459)                                        6               3                    3
Final Rule to List Nine Bexar     Dec. 26,
County, Texas Invertebrate        2000
Species as Endangered
(65 FR 81419)                                              9               0
Final Rule for Endangered         May 21,
Status for Astragalus             2001
pycnostachyus var. lan
osissimus (Ventura marsh
milk-vetch) (66 FR 27901)                                  3               1                    1




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                                              Appendix III
                                              Peer Reviewers’ Responses to Listing and
                                              Critical Habitat Decisions for Fiscal Years
                                              1999 through 2002




(Continued From Previous Page)
                                                    Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                  Unknown/
number                             Date              Asked     Responded                    Agree   Disagree     Neutral      unclear
Determination of Endangered        Sep. 28,
status for Astragalus              2001
holmgreniorum (Holmgren
milk-vetch) and Astragalus
ampullarioides (Shivwits
milk-vetch) (66 FR 49560)                                  4               3                    3
Endangered Status for the          Oct. 3,
Ohlone Tiger Beetle (Cicindela     2001
ohlone) (66 FR 50340)                                      3               3                    3
Determination of Endangered      Oct. 9,
Status for the Scaleshell Mussel 2001
(66 FR 51322)                                              4               2                    2
Final Rule To List Silene          Oct. 10,
spaldingii (Spalding’s Catchfly)   2001
as Threatened (66 FR 51597)                                3               3                    3
Final Rule To List the         Nov. 28,
Vermilion Darter as Endangered 2001
(66 FR 59367)                                              3               3                    3
Final Rule To List the Mississippi Dec. 4,
Gopher Frog Distinct Population 2001
Segment of Dusky Gopher Frog
as Endangered (66 FR 62993)                                3               3                    3
Endangered Status for          Jan. 23,
Carex lutea (Golden Sedge) (67 2002
FR 3120)                                                   5               0
Determination of Endangered        Feb. 6,
Status for the Washington Plant    2002
Hackelia venusta (Showy
Stickseed) (67 FR 5515)                                    3               3                    3
Endangered Status for the       Mar. 6,
Buena Vista Lake Shrew (Sorex 2002
Ornatus Relictus) (67 FR 10101)                            5               4                    3                                    1b
Listing the Desert Yellowhead as Mar. 14,
Threatened (67 FR 11442)         2002                      3               2                    1           1
Listing of the Chiricahua          Jun. 13,
Leopard Frog (Rana                 2002
chiricahuensis) (67 FR 40789)                              4               4                    4
Determination of Endangered        Jul. 2,
Status for the Southern            2002
California Distinct Vertebrate
Population Segment of the
Mountain Yellow-legged
Frog (Rana muscosa)
(67 FR 44382)                                              6               6                    6




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                                              Appendix III
                                              Peer Reviewers’ Responses to Listing and
                                              Critical Habitat Decisions for Fiscal Years
                                              1999 through 2002




(Continued From Previous Page)
                                                    Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                  Unknown/
number                             Date              Asked     Responded                    Agree   Disagree     Neutral      unclear
Determination of Endangered     Jul. 2,
Status for Ambrosia pumila (San 2002
Diego Ambrosia) from Southern
California (67 FR 44372)                                   3               1                    1
Determination of                   Aug. 7,
Endangered Status for the          2002
Carson Wandering Skipper
(67 FR 51116)                                              4               3                    2                       1
Determination of Endangered        Aug. 14,
Status for the Tumbling Creek      2002
Cavesnail (67 FR 52879)                                    5               5                    5
Critical habitat decisions
Final Designation of Critical      Jul. 6,
Habitat for the Rio Grande         1999
Silvery Minnow (64 FR 36274)                               4               1                    1
Designation of Critical            Jul. 12,
Habitat for the Cactus             1999
Ferruginous Pygmy-owl
(Glaucidium brasilianum
cactorum) (64 FR 37419)                                    4               1                                1
Designation of Critical Habitat    Jul. 12,
for the Huachuca Water Umbel       1999
(64 FR 37441)                                              3               1                    1
Designation of Critical Habitat    Dec. 7,
for the Pacific Coast Population   1999
of the Western Snowy Plover
                                                           b
(64 FR 68507)
Designation of Critical Habitat    Jan. 26,
for the Woundfin and Virgin        2000
River Chub (65 FR 4140)                                    0               0
Final Designation of Critical      Apr. 25,
Habitat for the Spikedace          2000
and the Loach Minnow
(65 FR 24328)                                              4               2                    2
Final Determination of             Oct. 3,
Critical Habitat for the           2000
Alameda Whipsnake
(Masticop his lateralis
                                                           b
euryxanthus) (65 FR 58933)
Final Determination of Critical    Oct. 23,
Habitat for the San Diego Fairy    2000
Shrimp (Branchinecta
sandiegoensis) (65 FR 63438)                               4               2                                                         2




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                                              Appendix III
                                              Peer Reviewers’ Responses to Listing and
                                              Critical Habitat Decisions for Fiscal Years
                                              1999 through 2002




(Continued From Previous Page)
                                                    Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                  Unknown/
number                             Date              Asked     Responded                    Agree   Disagree     Neutral      unclear
Final Determination of             Oct. 24,
Critical Habitat for the           2000
Coastal California Gnatcatcher
(65 FR 63680)                                              4               0
Designation of Critical Habit      Nov. 20,
at for the Tidewater Goby          2000
(65 FR 69693)                                              4               2                    1                                    1
Final Designation of               Dec. 22,
Critical Habitat for the           2000
Plant Lesquerella
Thamnophila (Zapata
Bladderpod) (65 FR 81182)                                  4               1                                1
Final Designation of Critical      Feb. 1,
Habitat for the Mexican Spotted    2001
Owl (66 FR 8530)                                           7               2                    2
Final Determination of Critical    Feb. 1,
Habitat for Peninsular Bighorn     2001
Sheep (66 FR 8650)                                         4               0
Final Determination of Critical    Feb. 2,
Habitat for the Alaska-Breeding    2001
Population of Steller’s Eider
(66 FR 8850)                                               5               2                    2
Final Determination of Critical  Feb. 6,
Habitat for the Spectacled Eider 2001
(66 FR 9146)                                               3               3                    2                                    1
Final Designation of Critical      Feb. 7,
Habitat for the Arroyo Toad        2001
(66 FR 9414)                                               5               2                    2
Final Determination of             Feb. 7,
Critical Habitat for the Zayante   2001
Band-Winged Grasshopper
(66 FR 9219)                                               3               2                    2
Final Determination of             Feb. 7,
Critical Habitat for the           2000
Morro Shoulderband Snail
(66 FR 9233)                                               3               2                    1                                    1
Final Determinations of Critical   Mar. 13,
Habitat for the California Red-    2001
legged Frog (66 FR 14626)                                  5               2                    2
Final Designation of Critical      Apr. 4,
Habitat for the Arkansas           2001
River Basin Population of
the Arkansas River Shiner
(66 FR 18002)                                              9               0




                                              Page 55           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                                             Appendix III
                                             Peer Reviewers’ Responses to Listing and
                                             Critical Habitat Decisions for Fiscal Years
                                             1999 through 2002




(Continued From Previous Page)
                                                   Peer reviewers                          Peer reviewers’ response
Federal Register title and                                                                                                 Unknown/
number                            Date              Asked     Responded                    Agree   Disagree     Neutral      unclear
Final Determination of            Apr. 30,
Critical Habitat for the Bay      2001
Checkerspot Butterfly
(Euphydryas editha bayensis)
(66 FR 21450)                                             4               3                    3
Final Determination of Critical   May 7,
Habitat for the Great Lakes       2001
Breeding Population of the
Piping Plover (66 FR 22938)                               3               3                    2                                    1
Final Designation of Critical     May 30,
Habitat for the Riverside Fairy   2001
Shrimp (66 FR 29384)                                      4               2                    1                                    1
Designation of Critical Habitat   Jul. 6,
for the Spruce-fir Moss Spider    2001
(66 FR 35547)                                             4               0
Final Determination of Critical   Jul. 10,
Habitat for Wintering Piping      2001
Plovers (66 FR 36138)                                     5               3                    3
Final Designation of Critical     Sep. 6,
Habitat for Sidalcea oregana      2001
var. calva (Wenatchee
Mountains checker-mallow)
(66 FR 46536)                                             3               1                    1
Final Designation of Critical     Sep. 6,
Habitat for the Kootenai River    2001
Population of the White
Sturgeon (66 FR 46548)                                    4               2                    2
Determination of Critical Habitat Dec. 10,
for the Oahu Elepaio              2001
(Chasiempis san dwichensis
ibidis) (66 FR 63752)                                     3               3                    3
Designation of Critical Habitat   Apr. 15,
for the Quino Checkerspot         2002
Butterfly (Euphydryas editha
quino) (67 FR 18356)                                      5               0
Final Designation of Critical     Apr. 23,
Habitat for the San Bernardino    2002
Kangaroo Rat (67 FR 19812)                                9               6                    5                       1
Critical Habitat Designation      May 28,
for Chorizanthe robusta var.      2002
robusta (Robust Spineflower)
(67 FR 36822)                                             3               3                    3




                                             Page 56           GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
                                                               Appendix III
                                                               Peer Reviewers’ Responses to Listing and
                                                               Critical Habitat Decisions for Fiscal Years
                                                               1999 through 2002




(Continued From Previous Page)
                                                                        Peer reviewers                               Peer reviewers’ response
Federal Register title and                                                                                                                                  Unknown/
number                                            Date                   Asked     Responded                        Agree       Disagree       Neutral        unclear
Designation of Critical Habitat May 29,
for Chorizanthe pungens var.    2002
pungens (Monterey Spineflower)
(67 FR 37498)                                                                  4                4                         4
Critical Habitat Designation                      May 29,
for Chorizanthe robusta var.                      2002
hartwegii (Scotts Valley
Spineflower) (67 FR 37336)                                                     3                3                         3
Designation of Critical Habitat                   Jul. 2,
for the Carolina Heelsplitter                     2002
(67 FR 44502)                                                                  3                0
Designation of Critical         Aug. 20,
Habitat for Newcomb’s Snail (67 2002
FR 54026)                                                                      6                6                         4              2
Designation of Critical Habit at                  Sep. 11,
for the Northern Great Plains                     2002
Breeding Population of the
Piping Plover (67 FR 57638)                                                    9                5                         5
Appalachian elktoe final critical                 Sep. 27,
habitat (67 FR 61016)                             2002                         4                0
Source: GAO analysis of U.S. Fish and Wildlife Service data.
                                                               a
                                                                The Service’s peer review policy does not apply to this decision because its most recent comment
                                                               period opened before the policy became effective.
                                                               b
                                                                   Documentation unavailable.
                                                               c
                                                                In one instance, the peer reviewer did not explicitly state agreement with the decision, but his
                                                               comments do not bring up anything to suggest disagreement; rather, he provided only minor
                                                               clarifications to the proposed decision document.




                                                               Page 57               GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix IV

The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions                                                                                                      Appendx
                                                                                                                     iIV




               Based on discussions with Service officials, experts, and others
               knowledgeable about the Endangered Species Act, we found that several
               scientific disagreements over Service listing decisions have surfaced in
               recent years—mostly concerning whether the amount of information
               available at the time a decision is made suffices as a basis for a decision.
               Regarding critical habitat decisions, we found there has been scientific
               controversy surrounding whether the areas chosen as critical habitat is
               sufficiently defined or the overall information used to support the
               designation is adequate.



Listing        Although we found that scientific disagreements surrounding listing
               decisions are not widespread, some of the controversy in recent years can
               be categorized as “science-related.” Experts and others working with the
               Endangered Species Act that we spoke with identified 11 species where
               there was significant scientific controversy surrounding the decisions to
               list the species.1 Our discussions with these individuals and a review of
               related Federal Register notices revealed that the most common scientific
               disagreements hinge on whether enough information was available to
               determine (1) whether the plants or animals under consideration qualified
               as a “species” as defined by the act, (2) the status of the species, or (3) the
               degree of threat that the species faces.

               Critics of some listing decisions argued that the Service lacked information
               to determine whether the entity in question met the definition of a
               “species.” The act defines a species as including “any subspecies of fish or
               wildlife or plants, and any distinct population segment of any species of
               vertebrate fish or wildlife which interbreeds when mature.”2 There is
               general agreement within the scientific community as to what constitutes a
               species and this has not been a major source of controversy in most listing
               decisions.3 Disagreements typically arise over whether entities that are
               genetically, morphologically, or behaviorally distinct, but not distinct


               1
                In total, these experts identified 25 species where they believed there was significant
               scientific controversy regarding listing the species. We limited our review to only those
               species that had been formally listed within the past 10 years; we excluded 14 species from
               our review either because the species was not listed or because it was listed prior to 1993.
               2
                16 U.S.C. §1532(16).
               3
                While there are differing definitions for the term species, it is often defined as groups of
               interbreeding natural populations that are reproductively isolated from other such groups.




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Appendix IV
The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




enough to merit the rank of species; qualify for protection as a distinct
population segment (DPS). Under Service policy, to be identified as a DPS,
a population segment must be both discrete and significant.4 In order to be
discrete, the population must be markedly separate from other populations
as a consequence of physical, physiological, ecological, or behavioral
factors. If a population segment is considered discrete, its biological and
ecological significance will then be considered. This consideration would
include such factors as evidence that the loss of the population would
result in a significant gap in the range of a species.

For example, disagreement surrounded the decision to list the population
of the Sonoma County California tiger salamander, a large terrestrial
salamander that is native to California. According to critics of the listing
decision, the results of genetic testing did not show the salamander to be
distinct, or discrete, from other populations of the California tiger
salamander and therefore the population did not qualify as a DPS. The
Service disagreed with the critics’ interpretation of the data, stating that it
believed the data referred to by the critics show the salamander to be
distinct from other populations. The Service said that additional sampling
and genetic work provided further substantial evidence of the genetic
discreteness of the population. Additionally, the Service relied on the
salamander’s geographic isolation in making a determination that the
population qualified for protection as a DPS.

Service policy also allows international governmental boundaries that
delineate differences in the management of the species or its habitat to be
used to determine if a species meets the discrete criterion. Some critics
have argued against using international boundaries as a criterion to define
a DPS. For example, critics of the decision to list the Arizona population
segment of the cactus ferruginous pygmy-owl stated that the Service had
no biological or regulatory authority to rely on international boundaries to
draw a distinct population segment. The pygmy-owl is a small bird that
occurs in the southwestern United States extending south into Mexico.

The Service recognizes that using international boundaries as a measure of
discreteness may introduce a nonbiological element to the recognition of a
distinct population segment. However, in its policy, the Service determined
that it is reasonable to recognize units delimited by international
boundaries when these units coincide with differences in the management,


4
61 Fed. Reg. 4722 (Feb. 7, 1996).




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Appendix IV
The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




status, or exploitation of a species. In the case of the pygmy-owl, the
Service reported the status of the owl in the United States is different from
that in Mexico, and Arizona is the only area within which the government
of the United States can affect protection and recovery for the species, so it
was appropriate to protect the pygmy-owl as a DPS.

In its review of science and the Endangered Species Act, the National
Research Council found that although it may be appropriate to delineate
population segments based on political boundaries, there are no scientific
reasons to do so as these boundaries often do not always coincide with
major natural geographic boundaries.5 To provide more scientific
objectivity in identifying distinct population segments, the Council
recommended that the Service define a distinct population segment based
solely on scientific grounds and limit the definition to segments of
biological diversity containing the potential for a unique evolutionary
future. Such segments would be determined by looking at such factors as a
population’s morphology (or physical appearance), behavior, genetics and
geographical separation or isolation from other populations. Service
officials agree that the inclusion of international boundaries in determining
whether a population segment is discrete is sometimes undertaken as a
matter of policy rather than science. However, the Service believes that
using international borders is appropriate and necessary to comply with
congressional intent. When there are international boundaries that
coincide with differences in the management, status, or exploitation of a
species, as described above, the Service stated that it is appropriate to
recognize these borders when making a listing determination.

Scientific disagreement also surrounds the status of a species and the
degree to which identified threats imperil it. When making a listing
determination, the Service must evaluate a species’ status, such as where it
occurs or its population numbers, and the degree of threat it faces. The
Service can determine that a species is threatened or endangered because
of any of several factors such as the destruction of habitat, disease or
predation, or other natural or manmade factors affecting the species’
survival. Several of the scientific disputes that we encountered centered on
how widespread the species in question is or how intense or significant the
threats to the species are. For example, state agencies commenting on the
proposal to list the Canada lynx said that the rule failed to demonstrate


5
 National Research Council, Science and the Endangered Species Act (Washington D.C.:
National Academy Press, 1995) 71-93.




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The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




there were significant reductions to the species’ population. Critics of the
rule said that the scientific information—which was largely in the form of
one comprehensive report—failed to assess lynx population size, status,
and trends. The Service agreed that the available information concerning
lynx population status, trends, and historic range is limited. However, after
reviewing historic and current records for both Canada and the United
States, sightings and track records, personal communications with lynx,
hare, and forest ecology experts, and a review of all available literature, the
Service said it was able to make several conclusions about the status of the
lynx and found that it warranted listing as threatened.



Figure 5: Canada lynx




Note: The Canada lynx is a medium-sized cat that is adapted for hunting in the deep snow, and is
known to prey primarily upon the snowshoe hare. In the contiguous United States, the distribution of
the lynx is known from the Cascade and Rocky Mountain Ranges in the West, the western Great
Lakes Region, and along the Appalachian Mountain Range of the northeastern portion of the country.


Additionally, critics of the proposal to list the lynx claimed that the Service
failed to demonstrate significant threats to the lynx’s survival. For example,
some stated that there is little evidence to support claims that current
management practices, including timber harvesting and human access,



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                   Appendix IV
                   The Nature of Scientific Controversy
                   Surrounding Listing and Critical Habitat
                   Decisions




                   adversely affect the lynx. While the Service acknowledged the lack of
                   quantifiable information to determine whether some of the possible threats
                   have or would have resulted in lynx declines, it concluded that the factor
                   threatening lynx in the contiguous United States is the lack of guidance in
                   existing federal land management plans for conservation of lynx and lynx
                   habitat.

                   Service officials told us that it is important to consider both the threats and
                   the status of the species when making a listing determination. For example,
                   if only a species’ population numbers were considered, it might appear to
                   be abundant. Once the threats are factored in, however, the species might
                   be threatened or endangered. On the other hand, if the species numbers are
                   low but the species faces no considerable threats, it may not warrant
                   protection under the act.



Critical Habitat   Experts and others we spoke to identified 10 species where there was
                   scientific controversy concerning the decision to designate critical habitat
                   for them.6 For example, one concern is whether the area chosen as critical
                   habitat is sufficiently defined or the overall information used to support the
                   designation is adequate. Most of the identified species are widespread or
                   occur in rapidly developing areas, such as southern California.

                   One of the major sources of disagreement is the way in which the Service
                   identifies land to be included in critical habitat. The Service is required to
                   designate as critical habitat those areas that it deems essential to a species’
                   conservation and that may require special management considerations and
                   protection. To reach this conclusion, the Service describes the species’
                   habitat needs for conservation, or the species’ “primary constituent
                   elements,” such as nesting or spawning grounds, feeding sites, or areas
                   with specific geologic features or soil types. The Service’s regulations also
                   require the delineation of critical habitat using reference points and lines as
                   found on standard topographic maps of the area. The Service uses written
                   descriptions and/or maps to outline the areas it considers critical habitat
                   for a listed species. In some cases, when maps are used to outline the area,


                   6
                    In total, these experts identified 13 species where there was scientific controversy
                   concerning their critical habitat designation. We limited our review to species that had
                   critical habitat formally designated within the past 10 years; we excluded 3 species from our
                   review either because the species critical habitat was not yet finalized, or because it was
                   designated prior to 1993.




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The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




parts of the area that fall within the mapped boundaries do not contain the
primary constituent elements defined by the Service. For example, building
structures, roads, or other major structures, such as an airport, may fall
within the mapped boundaries of critical habitat, but are not suitable
habitat. The Service maintains that these areas would not be considered
critical habitat because they do not contain the primary constituent
elements needed by the species. The Service stated that the precise
mapping of critical habitat boundaries is impractical or impossible because
the legal descriptions for these precise boundaries would be unwieldy.

The scientific controversy surrounding many of the critical habitat
proposals that we reviewed stems from disagreement or confusion over
which areas within the land outlined by the Service would count as critical
habitat. Critics responding to these proposed rules often complained that
the Service’s definitions of primary constituent elements were vague or too
broad to be useful. Additionally, several critics found the Service’s
assertion that only areas containing primary constituent elements would be
considered critical habitat to be confusing, noting that it did not allow for a
discrete boundary. In some instances, landowners voiced concerns that
their property fell within proposed critical habitat boundaries even though
the land did not seem to contain the primary constituent elements. For
example, critics of the proposed critical habitat of the California red-legged
frog stated that the Service’s description of the critical habitat was vague
and did not specifically identify the locations of the frog’s habitat.




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Appendix IV
The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




Figure 6: California red-legged frog




Note: The California red-legged frog is the largest native frog found in the western United States, and
its critical habitat consisted of over 4 million acres in California.


Critics of the rule stated that the proposal was confusing and that
landowners would be forced to survey for the frog when undertaking a
project. Such an action, they contended, is improper because it places the
onus on private landowners to make sure their land does not contain
critical habitat. The Service stated that due to the mapping unit it used it
was not able to exclude all nonessential lands, such as roads. According to
the Service, because these areas do not contain the primary constituent
elements, federal agencies would not be required to consult the Service
before taking action.

We also identified scientific disagreement stemming from designations
made for species that require dynamic habitats. Designating critical habitat,
which requires selecting a fixed habitat area, can be particularly difficult
when a listed species may require a habitat that is dynamic, or changing, in
nature. For example, lands that have been burned, cleared, or otherwise
disturbed may be essential to a species or may be important for only



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Appendix IV
The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




certain periods of a species’ life cycle. Many landscapes change because of
natural causes, such as the age and make-up of a forest, and therefore it
may be difficult to designate one particular area as habitat because the area
may change over time, causing a change in the value of the habitat for the
listed species. For example, scientific disagreement surrounded the critical
habitat designation of the Southwestern willow flycatcher partly because
of the bird’s changing habitat requirements. Comments received on the
proposed critical habitat rule stated that because riparian habitats are in a
constant state of change, any boundaries defined as critical habitat would
also be subject to change. Further, according to critics, the boundaries
described by the Service did not meet regulatory requirements because
they were difficult to interpret and could change seasonally. In the final
rule designating critical habitat, the Service agreed that its original
boundaries of critical habitat did not incorporate the dynamic nature of
riparian systems. To resolve this issue, the Service stated that the final
boundaries would be established in accordance with the 100-year flood
zone, which would include most changes in stream flow and most seasonal
changes.




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Appendix IV
The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




Figure 7: Southwestern willow flycatcher




Note: The Southwestern willow flycatcher is a small bird found in the southwestern United States. The
designation of the flycatcher consisted of more than 500 miles of river habitat in the southwest.


In addition to controversy surrounding the identification of specific areas
for critical habitat, many critics of the proposed rules that we reviewed
argued that the Service had insufficient information on which to base its
determination and that the Service should not designate critical habitat
until the habitat requirements of the species could be better defined. Other
critics objected to the Service’s use of unpublished or otherwise
unavailable data, stating that this type of information is inadequate to
support critical habitat designations. Service officials said that they have
been required to complete critical habitat decisions under short time
frames because of court-imposed deadlines. According to Service officials,
given the resource and time constraints under which Service scientists
work, scientists are often unable to collect new information and agree that
the information available may be limited. Thus, the Service relies on both




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Appendix IV
The Nature of Scientific Controversy
Surrounding Listing and Critical Habitat
Decisions




unpublished and published information and will use whatever scientific
information it deems credible to help make a determination.




Page 67          GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
Appendix V

GAO Contact and Staff Acknowledgments                                                                 Append
                                                                                                           x
                                                                                                           i
                                                                                                           V




GAO Contact       Trish McClure (202) 512-6318



Staff             In addition to the individual named above, Bob Crystal, Charlie Egan,
                  Doreen Stolzenberg Feldman, Alyssa M. Hundrup, Nathan Morris, and Judy
Acknowledgments   Pagano made key contributions to this report.




(360260)          Page 68       GAO-03-803 Additional Guidance Needed for Critical Habitat Designations
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