oversight

Endangered Species: Despite Consultation Improvement Efforts in the Pacific Northwest, Concerns Persist about the Process

Published by the Government Accountability Office on 2003-06-25.

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

                            United States General Accounting Office

GAO                         Testimony
                            Before the Subcommittee on Fisheries,
                            Wildlife, and Water, Committee on
                            Environment and Public Works,
                            United States Senate
For Release on Delivery
Expected at 9:30 a.m. EDT
Wednesday, June 25, 2003    ENDANGERED SPECIES
                            Despite Consultation
                            Improvement Efforts in the
                            Pacific Northwest,
                            Concerns Persist about the
                            Process
                            Statement of Barry T. Hill, Director
                            Natural Resources and Environment




GAO-03-949T
                                                  June 25, 2003


                                                  ENDANGERED SPECIES

                                                  Despite Consultation Improvement
Highlights of GAO-03-949T, a testimony            Efforts in the Pacific Northwest,
before the Subcommittee on Fisheries,
Wildlife, and Water, Senate Committee on          Concerns Persist about the Process
Environment and Public Works




The Endangered Species Act                        The Services and four action agencies in the Pacific Northwest have taken a
requires all federal agencies to                  number of actions to improve the efficiency of the consultation process. For
consult with the Fish and Wildlife                example, the Services have increased their staff levels in some offices, and
Service or the National Marine                    the National Marine Fisheries Service has opened additional offices to
Fisheries Service (the Services) to               facilitate consultations at remote locations. The Services have also
determine the effect that the
activities they conduct, permit, or               increased their use of consultations that cover multiple activities that are
fund may have on threatened or                    similar in nature, thus minimizing the need to consult on individual activities.
endangered species. In particular,                Another improvement, called streamlining, uses interagency teams that work
federal agencies (action agencies)                together on multiple activities; these teams work to improve communication,
must ensure that their activities do              reach agreement on the potential effects of activities early in the process,
not jeopardize the continued                      and resolve problems that arise to ensure that proposed activities will not
existence of any listed species or                negatively affect listed species. In addition, the Services and the action
adversely modify critical habitat.                agencies have worked, both individually and together, to develop and refine
After several fish species in the                 additional guidance and training for staff conducting consultations.
Pacific Northwest were listed in
the late 1990s, the Services’                     Despite the improvement efforts, Service and action-agency officials, as well
consultation workload increased
significantly in Idaho, Oregon, and               as nonfederal parties, continue to have concerns with the consultation
Washington, and the Services were                 process. A key problem that lengthens the consultation process is the lack
unable to keep up with requests for               of a shared understanding between the Services and action agencies on what
consultation. As a result, many                   constitutes a complete biological assessment. According to Service and
proposed activities were delayed                  action-agency officials, this can lead the Services to make multiple requests
for months or years. Even under                   for information from the action agencies about an activity until the Services
normal workload conditions, the                   are confident that a biological assessment adequately addresses the effects
consultation process can be                       of the proposed activity on the species. Multiple requests for information
difficult, in part because decisions              are also sometimes due to Service biologists’ being unfamiliar with action-
about how species will be                         agency programs, partly owing to high staff turnover. In addition, action-
protected must often be made with                 agency officials noted that the Services and the action agencies attempt to
uncertain scientific information
using professional judgment.                      ensure that biological assessments are “bullet proof” by making them so
                                                  comprehensive that they will be immune to any legal challenges. Action-
This testimony is based on ongoing                agency officials also expressed a concern that Service and action-agency
work requested by the Chairman of                 roles are not clearly defined. For example, according to action-agency
the Senate Subcommittee on                        officials, Service officials sometimes make judgments about whether an
Fisheries, Wildlife, and Water. It                activity should occur or how it should occur, rather than just judging its
addresses (1) efforts to improve                  potential effects on species. In response, Service officials commented that
the consultation process, by the                  the purpose of the consultation process is to discuss the potential effects of
Services and by four action                       proposed actions early in the planning process and to explore options that
agencies in Idaho, Oregon, and                    will avoid jeopardy. Service and action-agency officials also identified a lack
Washington; and (2) concerns with                 of sufficient resources—particularly at the Services—as a key concern,
the process expressed by officials
at the Services and action agencies,              stating that staff-level increases have not kept pace with their growing
and by nonfederal parties.                        workloads. Among the nonfederal parties, permit applicants expressed
                                                  concerns about the time and expense required for the consultation process.
                                                  Environmental groups said land management decision-making processes,
www.gao.gov/cgi-bin/getrpt?GAO-03-949T.
                                                  such as consultation, are often closed to them until after final decisions are
To view the full testimony, including the scope   made, and that the only way they can make their voices heard is through
and methodology, click on the link above.         administrative appeals and lawsuits.
For more information, contact Barry T. Hill at
(202) 512-3841 or hillbt@gao.gov.
Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss preliminary results from our
ongoing review of the consultation process required by the federal
Endangered Species Act, particularly as applied in the Pacific Northwest.
Under the act, before federal agencies may conduct, permit, or fund
activities in areas where species listed as threatened or endangered may
be present, the agencies must consult with the Department of the Interior’s
Fish and Wildlife Service or the Department of Commerce’s National
Marine Fisheries Service (the Services). Such consultation is intended to
allow federal agencies to ensure that the activities are not likely to
jeopardize the species’ continued existence or adversely modify their
critical habitat. Consultation has particularly significant effects in the
Pacific Northwest because numerous species there are threatened with
extinction, including the Northern spotted owl, various salmon species,
and the bull trout.

Federal activities that agencies may need to consult about in the Pacific
Northwest range from operating hydroelectric dams on the Columbia
River—which provide about 60 percent of the federal electricity-
generating capacity in the region—to harvesting timber, to dredging
navigation channels. Responsible agencies—or “action agencies”—include
the Department of the Interior’s Bureaus of Land Management and
Reclamation, the Department of Agriculture’s Forest Service, and the
Army Corps of Engineers, to name a few. Typical nonfederal activities that
these agencies permit, which may also require consultation, include
grazing, timber harvesting, and mining on federal lands, and building
structures such as piers and docks on private property. Nonfederal parties,
such as private landowners, developers, or local governments, typically
conduct these permitted activities.

If an action agency determines that an activity may affect a listed species,
the agency may initiate either an informal or a formal consultation with
the appropriate Service. In an informal consultation—which could be as
simple as a brief telephone call—the Service and action agency may agree
that the activity is unlikely to negatively affect the species and that formal
consultation is not necessary. On the other hand, if the Service or agency
initially believes or finds after informal consultation that the activity may
have negative effects, the action agency initiates formal consultation by
submitting a biological assessment on the activity and its potential effects.
If negative effects appear likely and formal consultation is required, the
Service has 135 days to formally consult and document, in a biological
opinion, whether the activity could jeopardize the species’ continued

Page 1                                           GAO-03-949T ESA Consultations
          existence and what actions, if any, are required to mitigate those effects.
          (See app. I for a flowchart depicting the consultation process.) Avoiding
          jeopardy caused by federally conducted or approved activities is important
          to achieving the overall purpose of the Endangered Species Act, which is
          to conserve species that are at risk of extinction.

          Even under normal workload conditions, the consultation process can be
          difficult, in part because decisions about how species will be protected
          must often be based on uncertain scientific information and on
          professional judgment. Decisions resulting from consultations are
          sometimes challenged in lawsuits, and responding to the lawsuits can
          increase workload and delay activities. These problems were magnified in
          the late 1990s, after several fish species in the Pacific Northwest were
          listed as threatened or endangered. The new listings increased the
          Services’ consultation workload significantly in Idaho, Washington, and
          Oregon, and the Services were unable to respond quickly. As a result,
          many activities that federal agencies proposed were delayed for months or
          years. Action agencies and others criticized the consultations as unduly
          burdensome.

          Our testimony, which is based on ongoing work that you requested,
          addresses (1) key efforts to improve the consultation process in the
          Pacific Northwest and (2) concerns about the consultation process
          identified by officials from the Services and other federal agencies, and by
          nonfederal parties, including environmental advocacy groups. To gather
          their views on consultations, we administered a structured questionnaire
          to 61 officials with the Services and the Army Corps of Engineers, the
          Bureaus of Land Management and Reclamation, and the Forest Service in
          Idaho, Oregon, and Washington. We conducted 133 additional interviews
          with agency officials in headquarters and field offices and with nonfederal
          parties; we also visited various locations in the three states. Prior to
          issuing this testimony, we shared a preliminary draft with the agencies we
          reviewed and incorporated their comments as appropriate. We conducted
          our work in accordance with generally accepted government auditing
          standards. Our final report, which we anticipate issuing in late August
          2003, will present additional information about the adequacy of agency
          databases that are used to maintain key information on individual
          consultations. Our report will also provide Service and action-agency
          perspectives on improvements made to the consultation process.


          Efforts by the Services and action agencies to improve the consultation
Summary   process have focused on increasing the number of staff that conduct

          Page 2                                          GAO-03-949T ESA Consultations
consultations, improving the efficiency of the process, and providing
additional training and guidance for consultation staff and nonfederal
parties. For example, both of the Services have increased their staff levels
in certain offices, and the National Marine Fisheries Service has
established new offices, among other things, to facilitate consultations at
remote locations. To improve efficiency, the Services have increased their
use of consultations that address multiple activities, minimizing the need
to consult on individual ones. For example, one consultation in western
Oregon covers ten types of routine activities in three national forests and
two Bureau of Land Management districts. Another improvement, called
streamlining, uses interagency teams for consultations to improve
communications among the Services and action agencies on multiple
activities, get agreement on the potential effects of an activity faster, and
help resolve problems that arise. Finally, the Services and the action
agencies have worked, both individually and together, to develop and
refine additional guidance and training for staff conducting consultations.
Interagency efforts include refresher training on the streamlining process
and development of Web sites that provide staff with preparation
instructions for, and examples of, biological assessments and other key
consultation documents.

Despite the improvement efforts, Service and action-agency officials, as
well as nonfederal parties, continue to have concerns with the
consultation process. A key problem that lengthens the consultation
process is that the Services and action agencies do not always share an
understanding of what constitutes a complete biological assessment.
According to Service and action-agency officials, this can lead to multiple
requests by the Services for information from the action agencies about an
activity until the Service is satisfied that a biological assessment
adequately assesses the effects of a proposed activity on listed species.
Multiple requests for information also sometimes stem from Service
biologists’ unfamiliarity with action-agency programs, partly owing to high
staff turnover. In addition, action-agency officials noted that the Services
and the action agencies attempt to ensure that biological assessments are
“bullet proof” by making them so comprehensive that they will be immune
to any legal challenges. Action-agency officials also expressed a concern
that Service and action-agency roles are not clearly defined. For example,
according to action-agency officials, Service officials sometimes make
judgments about whether an activity should occur or how it should occur,
rather than simply judging its potential effects on species. In response,
Service officials commented that the purpose of the consultation process
is to discuss the potential effects of proposed actions early in the planning
process and to explore options that will avoid jeopardy. Service and

Page 3                                          GAO-03-949T ESA Consultations
             action-agency officials also identified a lack of sufficient resources—
             particularly at the Services—as a key concern, stating that staffing
             increases have not kept pace with their growing workloads. Among the
             nonfederal parties, permit applicants expressed concerns about the time
             and expense required for the consultation process. For example, the
             average permit processing time for 19 permits issued in 2002 for building
             private docks or for similar activities on Lake Washington (near Seattle)
             was about 2 years and added about $10,000 to applicants’ costs.
             Environmental groups said land management decision-making processes,
             such as consultation, are often closed to them until after final decisions
             are made, and that the only way to make their voices heard is through
             administrative appeals and lawsuits.


             The Endangered Species Act prohibits the “taking” of any threatened or
Background   endangered species of animal and defines “take” as to harass, harm,
             pursue, shoot, wound, kill, trap, hunt, capture, or collect, or to attempt to
             engage in any such conduct. Federal agencies must comply with
             prohibitions against taking species listed as threatened or endangered and
             must consult with the Services to determine the effect, if any, that their
             activities may have on listed species. In particular, federal agencies must
             ensure that their activities do not jeopardize the continued existence of
             any listed species, or destroy or adversely modify habitat designated as
             critical for those species. If any proposed activities will jeopardize a
             species or adversely modify its critical habitat, the Services will identify
             alternatives to those activities.

             The Fish and Wildlife Service and the National Marine Fisheries Service
             together have responsibility for implementing the Endangered Species Act.
             The Fish and Wildlife Service is responsible for the protection of
             terrestrial, or land-dwelling, and freshwater animal and plant species.
             Endangered or threatened terrestrial animals in the Pacific Northwest
             include the Northern spotted owl, the grizzly bear, and the Canada lynx.
             The Service also manages land in national wildlife refuges and, like other
             land-managing agencies, must consult with its own biologists in
             determining the effect of its activities on listed species. The National
             Marine Fisheries Service is responsible for the protection of ocean-
             dwelling species and anadromous species, such as salmon.1




             1
             Anadromous species live part of their lives in fresh water and part in saltwater.



             Page 4                                                    GAO-03-949T ESA Consultations
                        Several federal agencies manage land in the Pacific Northwest or conduct
                        activities there, many of which require consultation under the Endangered
                        Species Act.

                        •   The Army Corps of Engineers (Corps) supports navigation of the
                            nation’s waterways by maintaining and improving channels. In Idaho,
                            Oregon, and Washington, the Corps also operates 12 dams and
                            reservoirs that provide flood control, generate hydroelectric power,
                            protect fish and wildlife, and support recreation and other activities. In
                            addition, the Corps issues permits to parties who wish to conduct
                            activities in lakes, streams, and wetlands; these activities include
                            dredging or filling waterways, and building structures ranging from
                            docks and driveways to housing developments.

                        •   The Bureau of Land Management manages about 28 million acres of
                            federal land in Idaho, Oregon, and Washington. The agency issues
                            permits for and manages such activities as livestock grazing,
                            recreation, mining, and timber harvests; many of these activities
                            require consultation.

                        •   The Bureau of Reclamation’s core mission is to deliver water and
                            hydroelectric power throughout 17 western states. In the Pacific
                            Northwest, it operates and maintains 28 dams and administers 54
                            reservoirs. Its primary activities that require consultation are dam
                            construction, operation, and maintenance.

                        •   The Forest Service manages about 45 million acres of national forest in
                            Idaho, Oregon, and Washington. The agency issues permits for,
                            manages, and must consult on activities such as timber harvesting;
                            recreation; livestock grazing; mining; environmental restoration; and
                            rights of way for road construction, ski areas, and access to private
                            land.

                        The Services and action agencies have increased the number of staff that
Improvement Efforts     conduct consultations. Specifically, the Fish and Wildlife Service
Have Focused on         increased the number of biologists in some of its offices in order to
                        address their growing consultation workload. The National Marine
Staffing Resources,     Fisheries Service also increased staff levels at several offices, and opened
Efficiency, Guidance,   several new field offices in 2001 to facilitate consultations at remote
                        locations. Previously, the geographic distance between the locations made
and Training            consultations difficult. In addition, some action agencies have found it
                        useful to provide funding for one or more Service biologist positions to
                        specifically work on, or give priority to, that action agency’s consultations.
                        For example, the Corps’ Seattle district provides funding for a Fish and


                        Page 5                                           GAO-03-949T ESA Consultations
Wildlife Service biologist position. The district gives the Service a list of
upcoming activities, and the Corps-funded Service biologist works on
consultations for those activities.

To improve the efficiency of the consultation process, the Services have
increased their use of consultations that address multiple activities,
minimizing the need to consult on individual activities. These multiple-
activity consultations, often referred to as programmatics, sometimes
allow action agencies to approve activities that meet predetermined
criteria without additional consultation. Programmatics may cover
repetitive activities with similar effects, such as road and recreation trail
maintenance, or a variety of activities affecting a particular area or group
of species, such as forest fuels treatment, grazing, and watershed
restoration projects conducted in bull trout habitat. Multiple-activity
consultations may also cover these types of activities in a specific region,
as in three western Oregon national forests and two Bureau of Land
Management districts, where one consultation covers ten categories of
routine activities.

Another improvement effort, streamlining, is intended to reduce the time
spent on consultations by facilitating early planning, up-front
coordination, and communication between the Services and action
agencies. Under the streamlined process, officials work on interagency
teams that meet regularly to discuss upcoming action-agency activities and
review draft biological assessments. The belief is that with improved
communication, more trust will develop between the Services and action
agencies, and problems will be easier to resolve when they arise.
Accordingly, for formal consultations that go through streamlining, the
Services, the Bureau of Land Management, and the Forest Service set a
goal of reducing the time allotted from the current legal requirement of 135
days to 60 days. Streamlining is currently used for most Bureau of Land
Management and Forest Service activities in the Pacific Northwest. In
addition, the Bureau of Land Management and the Forest Service are
involved in a pilot process in some locations in Idaho and Oregon. In this
process, the action agencies have been delegated the authority to certify
that certain activities meeting pre-established criteria are unlikely to
adversely affect listed species and can therefore proceed.

Both the Services and the action agencies have provided additional
training and guidance to improve understanding of the consultation
process and one another’s roles and authority, including the following.




Page 6                                            GAO-03-949T ESA Consultations
•   The Services have developed refresher training on the consultation
    process, have prepared guidance on how to prepare a high-quality
    biological assessment, and provide continuing professional education
    on evaluating the biological effects of proposed activities.

•   The Services, the Bureau of Land Management, and the Forest Service
    have developed an interagency Web site with links to the Endangered
    Species Act and its regulations and to guidance on streamlined
    consultation procedures. They plan to add examples of biological
    assessments and other documents as guidance for teams using
    streamlined procedures.

•   The National Marine Fisheries Service currently provides links on its
    Web site to biological opinions and to a tracking system that shows the
    status of consultations. The Service also plans to launch a separate
    Web site this year to provide guidance to action-agency biologists and
    others on preparing biological assessments.

•   The Army Corps of Engineers has developed Web sites to inform
    citizens about the permitting and consultation processes. These Web
    sites include instructions on applying for permits for activities such as
    pier and dock construction.

Several action-agency officials told us that they also sometimes use site
visits to educate stakeholders (e.g., the Services, the action agency, and
interested nonfederal parties) about a proposed activity. An Army Corps
official, for example, said the Corps has taken Service biologists out on
dredges to increase the biologists’ understanding of dredging operations
and their likely effect on species. In another example, a Forest Service
biologist convened on-site meetings of all the stakeholders in a
consultation about the proposed development plan for a ski area in
Washington. These stakeholders (representatives of the Forest Service, the
Fish and Wildlife Service, the ski area, the state, and a local hunting group)
walked through the proposed development areas and discussed ways to
prevent the development from adversely affecting the species involved.
This on-site collaboration, according to the Forest Service biologist,
gained agreement by all stakeholders on how the development could avoid
adversely affecting listed species. It also may have forestalled litigation by
the state and the local hunting group, which had previously opposed the
proposed development plan.




Page 7                                           GAO-03-949T ESA Consultations
                            Despite ongoing efforts to improve consultations, Service and action-
Despite Improvement         agency officials continue to have concerns about the consultation process.
Efforts, Concerns           The absence of shared criteria for complete biological assessments,
                            Service biologists’ lack of knowledge about action-agency programs, and
Remain about                fear of litigation were frequently mentioned by Service and action-agency
Consultations               officials as significant concerns. In addition, according to some action-
                            agency officials, Service and action-agency roles are not clearly defined,
                            which leads to Service officials sometimes recommending changes to
                            agencies’ proposed activities beyond what action agencies think is
                            necessary to minimize the negative effect on species. In response, Service
                            officials commented that the purpose of the consultation process is to
                            discuss the potential effects of proposed actions early in the planning
                            process and to explore options that will avoid jeopardy. Service and
                            action-agency officials were also concerned about a lack of sufficient
                            resources, particularly at the Services. Among nonfederal parties,
                            concerns were expressed about the time and cost required for
                            consultations and about a perceived lack of openness and effectiveness in
                            the consultation process.


Officials Do Not Have a     A key problem that lengthens the consultation process is that the Services
Common Understanding of     and action agencies do not always have an understanding of what
the Information Needed in   constitutes a complete biological assessment—that is, one that provides
                            sufficient scientific information to determine an activity’s effect on a
Biological Assessments      species. Because of this lack of common criteria, and because complete
                            scientific information is rarely available for listed species, officials often
                            rely on their judgment and experience to determine the likely effect of
                            activities on species. Some Service officials we interviewed said that they
                            often do not receive sufficiently detailed information from the agencies in
                            a biological assessment about the activity so that they can independently
                            assess its likely effects on the species. They therefore request additional
                            information and do so until they are satisfied that the assessment
                            adequately addresses the effects of the proposed activity on the species.
                            On the other hand, some action-agency officials said they believe that the
                            Services require much more detailed information than is necessary to
                            determine whether they agree with the action agency’s assessment of the
                            activity’s effects. Many Service and action-agency officials said that these
                            requests for additional information and associated discussions can delay
                            the consultation process and cause frustration.

                            Disagreements over the detail needed in biological assessments are
                            exacerbated because many officials perceive the consultation process as
                            personality-driven. Specifically, Service and action-agency officials said

                            Page 8                                           GAO-03-949T ESA Consultations
                          that sometimes officials on both sides of the issue take unyielding
                          positions on consultations, either on behalf of the activity or the listed
                          species, and they waste time arguing. In these instances, the process takes
                          much longer to complete than when participants are able to compromise.
                          In addition, action-agency officials said some Service biologists—
                          particularly new ones—can be overly zealous in their efforts to protect
                          species and may be unlikely to compromise; at the same time, action
                          agencies do not always involve the Services early enough in consultation,
                          making the process difficult. In other cases, officials told us that some
                          individuals that are key to the consultation process lack the interpersonal
                          or negotiation skills necessary to resolve conflicts that arise in the
                          process. One action-agency official noted, “there is no room in the process
                          for zealots—on either side.”

                          National Marine Fisheries Service officials recognize the need for better
                          guidance regarding the level of detail required in biological assessments
                          and are developing training for their biologists, along with a Web-based
                          template and checklist for action agencies. Service officials told us that
                          they believe deadlocked disagreements over biological assessments are
                          less common than they used to be, and when they do occur it is sometimes
                          because issues are not elevated to management for resolution when they
                          should be. Furthermore, they believe that increased staff, planning, and
                          field offices have helped alleviate these issues.


Service Biologists Are    Service and action-agency officials agreed that Service biologists are
Unfamiliar with Action-   sometimes unfamiliar with action-agency programs and activities and that
Agency Programs           the time required for Service biologists to learn about activities and how
                          they may negatively affect species can lengthen the consultation process.
                          High turnover among Service biologists is one factor that contributes to
                          their lack of familiarity with action-agency activities. In one example,
                          Service biologists did not understand the process of mining for gold in
                          streams until they were given a field demonstration. Allowing the Service
                          biologists to see the mining equipment in operation helped facilitate the
                          consultation process because the biologists did not have to ask numerous
                          clarifying questions to understand the activity’s potential impact. Although
                          site visits can help familiarize biologists with action-agency activities,
                          because of resource limitations, Service and action-agency officials said
                          they are unable to make site visits a routine part of consultation.




                          Page 9                                         GAO-03-949T ESA Consultations
Service and Action-Agency    Service and action-agency officials alike cited the fear of litigation as a
Officials Are Concerned      significant concern that lengthens the consultation process. Since 1999,
about Litigation             the Services have been affected by at least 19 lawsuits involving
                             consultations in courts with jurisdiction in Idaho, Oregon, and
                             Washington. For example, according to a Forest Service official in Oregon,
                             at least two dozen timber projects have awaited consultation for 2 years
                             because a court ruled that the National Marine Fisheries Service used
                             insufficient scientific data to support a determination that natural
                             vegetation growth would adequately mitigate the effects of logging.2 This
                             decision invalidated more than 20 existing biological opinions for timber
                             harvests, which will await formal consultation until the National Marine
                             Fisheries Service implements a strategy for addressing the court’s
                             concerns. In addition, both Services must respond to notices of lawsuits
                             and agreements that settle lawsuits.

                             According to action-agency officials, such court rulings have led Service
                             officials to apply the same level of scrutiny to all activities, regardless of
                             the level of risk they pose to listed species. Action-agency officials believe
                             that the Services attempt to ensure that all biological assessments are
                             “bullet proof”—or so comprehensive that they are impervious to legal
                             challenge—and this adds to the time and cost of consultation. As a result,
                             Service officials apply similar scrutiny to activities that are less likely to
                             have long-term negative impacts, such as trail maintenance or habitat
                             restoration, as they do to activities with much higher potential for long-
                             term negative effects, such as mining. Some action-agency officials
                             recognized that this fear of litigation similarly causes them to put more
                             details in their biological assessments than they otherwise would.
                             Furthermore, Interior officials expressed concerns that existing litigation,
                             and the risk of future litigation, may be interfering with the consultation
                             process and diverting to litigation a disproportionate amount of the funds
                             intended for Endangered Species Act implementation.


Service and Action-Agency    According to action-agency officials, Service and action-agency roles are
Roles in Consultations Are   not clearly defined. Some action-agency officials expressed concern that
Not Clearly Defined          Service biologists sometimes make judgments about whether an activity
                             should occur, rather than just its potential effects on species. Action-
                             agency officials told us they believe decisions about activities’ design



                             2
                              Pacific Coast Federation of Fishermen’s Associations v. National Marine Fisheries
                             Service, 265 F.3d 1028 (9th Cir. 2001).



                             Page 10                                               GAO-03-949T ESA Consultations
                        should be left to the action agencies. The Department of the Interior’s
                        Assistant Secretary for Water and Science recently discussed this concern
                        in an address to Bureau of Reclamation employees. The Assistant
                        Secretary asserted that it is the Bureau’s responsibility to determine how
                        its proposed activities should be designed and the Services’ responsibility
                        to issue biological opinions on those activities’ potential impact on
                        species. He emphasized that the Bureau should not include components in
                        its proposed activities that it believes are not necessary for avoiding
                        negative effects to listed species, simply because the Services want those
                        components included. The Bureau’s Commissioner also issued a policy
                        statement reiterating the Assistant Secretary’s position that it is the
                        Bureau’s responsibility—not that of the Services—to define its proposed
                        activities and to provide a biological assessment that is based on the best
                        available science. The policy states that the Bureau should rely on the
                        Services to respond with a scientifically sound biological opinion—which
                        may include a determination that an activity will adversely affect a listed
                        species. In that event, Bureau and Service officials would work together to
                        develop acceptable measures for mitigating the activity’s detrimental
                        effects. In commenting on a draft of this statement, Service officials said
                        that the purpose of the consultation process is to discuss the potential
                        effects of proposed actions early in the planning process and to explore
                        options that will avoid jeopardy


Insufficient Staffing   Service and action-agency officials identified a lack of sufficient
Resources Are a Key     resources—particularly at the Services—as a key concern that limits
Concern                 timely completion of consultations. Service and action-agency officials are
                        concerned that although staff levels have increased in recent years,
                        staffing has not kept pace with their growing workloads. For example,
                        data from the Fish and Wildlife Service’s office in Portland, Oregon, show
                        that while the office’s budget for consultations increased approximately 40
                        percent between fiscal years 1998 and 2002, the number of consultations
                        for which each biologist was responsible increased about 90 percent. One
                        consequence of this disparity between resources and workload is that the
                        Services cannot always meet regulatory timeframes. Furthermore, officials
                        said that there is an upward trend in the types of activities that require
                        consultation. For example, as a result of a court ruling in the mid-1990s,
                        the Bureau of Land Management and the Forest Service must consult with
                        the Services on their land management plans. This ruling created a
                        substantial new workload for the agencies and the Services, and they are
                        still working to complete the consultations in some areas.




                        Page 11                                        GAO-03-949T ESA Consultations
Some Nonfederal Parties   Nonfederal parties wishing to conduct activities requiring consultation
Are Concerned about the   because they involve federal permits or licenses also expressed concerns
Length and Cost of the    about the time and cost required for the process. When nonfederal parties
                          apply to an action agency for a permit or license, they must go through
Permitting Process        reviews required by the action agency for approval. These reviews can
                          include consultation. Action agencies either prepare (sometimes at the
                          applicant’s expense), or ensure that applicants have arranged for the
                          preparation of, a biological assessment; the agency then reviews the
                          biological assessment and requests additional information as needed.
                          According to a Service official, economic impacts and the scope of the
                          proposed activity are considered during consultation, in addition to
                          whether or not the activity will jeopardize listed species or adversely
                          modify critical habitat.

                          In one example, a private landowner waited about 3 years—including time
                          for Forest Service permit review and consultation-related activities—for a
                          permit that would allow him to cross Forest Service land to harvest his
                          privately owned timber stand. To cross the Forest Service land, the
                          landowner had to improve an old logging road and construct about half a
                          mile of new road, which he did himself, work valued at about $9,000; he
                          also reimbursed the Forest Service about $6,800 for the costs to prepare a
                          biological assessment for the consultation. Further, according to the
                          landowner, when he was finally able to harvest the timber its market value
                          had dropped by one-third to one-half from its anticipated value. The Forest
                          Service biologist who worked on this consultation noted that it was
                          affected by numerous complicating factors, including a court decision
                          barring the Fish and Wildlife Service from issuing biological opinions on
                          activities affecting spotted owls and a new policy for dealing with private
                          landowners.

                          In another example, the average time for the Corps to process 19 permits
                          issued in 2002 for building private docks or for similar activities on Lake
                          Washington (near Seattle) was about 2 years. This time included the
                          consultation time spent by each Service, as well as the time spent by the
                          action agency to help the permit applicant complete a biological
                          assessment and meet other Corps requirements for the permit. For these
                          permits, consultation added about $10,000 to nonfederal parties’ costs.
                          Officials from the Services noted that these types of delays were not
                          uncommon when bull trout and salmon were first listed because so many
                          activities, many of them in urban areas, were affected. A National Marine
                          Fisheries Service official stated that these listings created an “automatic
                          backlog” of consultations that overwhelmed them. A Fish and Wildlife
                          Service official also noted that the delays were at least partly due to their

                          Page 12                                          GAO-03-949T ESA Consultations
                           unfamiliarity with the effects that building docks could have on bull trout.
                           The bull trout was the first aquatic species that they had to deal with in the
                           Pacific Northwest.


Environmental Groups Are   Environmental advocacy groups also expressed concerns with the
Concerned that             consultation process. Representatives of two environmental advocacy
Consultations Lack         groups said land management decision-making processes, such as
                           consultation, are often closed to them until after final decisions are made,
Openness and               and that the only way they can make their voices heard is through
Effectiveness              administrative appeals and lawsuits. One representative expressed
                           concern that the streamlining process lacks transparency and
                           compromises the Services’ role of scrutinizing action-agency activities.
                           Service officials noted that the Endangered Species Act does not require
                           public participation or public comment in the consultation process. One
                           environmental group’s representative expressed concern that the Services
                           do not have a comprehensive view of a species’ status across its range and
                           therefore are limited in their ability to determine the potential effects of
                           proposed activities. For example, the bull trout may or may not be
                           significantly affected by an activity in one stream, but unless the Services
                           know the trout’s status across its range, they cannot make informed
                           decisions about how an activity will affect the species as a whole.


                           Mr. Chairman, this completes my prepared statement. I would be happy to
                           respond to any questions that you or Members of the Subcommittee may
                           have.


                           For further information about this testimony, please contact me at
GAO Contacts and           (202) 512-3841. Trish McClure, Jennifer Duncan, Jaelith Hall-Rivera,
Staff                      Cynthia Norris, Anthony Padilla, Katherine Raheb, Jeff Rueckhaus,
                           Rebecca Shea, and Pamela Tumler also made key contributions to this
Acknowledgments            statement.




                           Page 13                                         GAO-03-949T ESA Consultations
Appendix I: Endangered Species Act
Consultation Process



 No deadline to complete




                                                                         No effects              No consultation
                                                                                                 required; process
                                                                                                 ends




                                                                                      Negative
                               Federal agency
                                                                    What is           effects
                               gathers information
                                                                   agency's           unlikely   Consultation
                               on a proposed                                                                           Agency submits
                                                                 determination                   required, may be
                               activity’s potential                                                                    biological
                                                                    of likely                    informal
                               effects on listed                                                                       assessment to
                               species or critical                  effects?                                           the Services
                               habitat

                                                                         Negative
                                                                         effects
                                                                         likely                  Formal consultation
                                                                                                 required




        Non-federal party                                              Does
        (e.g., livestock                                          the permitting
        grazer) seeking                                       agency have enough       Yes
                                                                                                 Agency accepts
        Federal permit                                        information to assess
                                                                                                 information
        submits information                                        the activity's
        on the proposed                                           likely effects?
        activity’s potential
        effects on listed
        species or critical
        habitat




                              No, requests more information




Source: GAO analysis of data from multiple agencies.




                                                          Page 14                                                      GAO-03-949T ESA Consultations
                                                    Formal consultation: 135 days to complete


                                                    Informal consultation: 30 days to complete (Service policy)




                                                              Informal

                                                                Service concurs that negative      Process ends
                                                                effects are unlikely               with letter
                                                                                                   of concurrence

                                   Yes, initiates                Service determines that           Formal
                                   consultation                  negative effects are likely       consultation
                   Does the
                                                                                                   initiated
                Service have
            enough information to
             assess the activity's
                likely effects?


                                                               Formal                                                                     Jeopardy not
                                                                                                                                          likely: process
                                                                 Service reviews biological        Service issues final biological        ends
                                                                 assessment and determines         opinion, including jeopardy
                                                                 if project could jeopardize       determination and any
                                                                 listed species or adversely       requirements for minimizing           Jeopardy likely:
        No, requests
                                                                 modify critical habitat           negative effects to species           Service recommends
     more information
                                                                                                   or habitat                            alternatives to
                                                                                                                                         proposed project;
                                                                                                                                         process ends




(360351)
                                                          Page 15                                                               GAO-03-949T ESA Consultations
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