oversight

Endangered Sea Turtles: Better Coordination, Data Collection, and Planning Could Improve Federal Protection and Recovery Efforts

Published by the Government Accountability Office on 2012-01-31.

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

               United States Government Accountability Office

GAO            Report to Congressional Requesters




January 2012
               ENDANGERED SEA
               TURTLES
               Better Coordination,
               Data Collection, and
               Planning Could
               Improve Federal
               Protection and
               Recovery Efforts




GAO-12-242
                                             January 2012

                                             ENDANGERED SEA TURTLES
                                             Better Coordination, Data Collection, and Planning
                                             Could Improve Federal Protection and Recovery
                                             Efforts
Highlights of GAO-12-242, a report to
congressional requesters




Why GAO Did This Study                       What GAO Found
All six species of sea turtles found in      The services have coordinated some sea turtle protection efforts, including jointly
U.S. waters and nesting on U.S.              developing recovery plans, and they established a memorandum of
shores are listed as endangered under        understanding in 1977 to define their roles in joint administration of their efforts.
the Endangered Species Act. Two              Nevertheless, neither the memorandum nor the services have clearly defined
federal agencies—the National Marine         how and when the services are to coordinate; also, the services do not
Fisheries Service (NMFS) and the Fish        consistently share information about the majority of the take they authorize.
and Wildlife Service (FWS)—are               According to sea turtle experts GAO spoke with, each service may therefore be
charged with protecting sea turtles,         authorizing sea turtle take without knowing how much its counterpart has
NMFS when the turtles are at sea and
                                             authorized, and the combined allowance may be harming threatened and
FWS on land. The act prohibits the
                                             endangered sea turtles and delaying their recovery.
“take,” including harassment or killing,
of protected species. The services           NMFS and FWS each use databases that collect information about consultations
(NMFS and FWS) can, however,                 involving take of sea turtles and other species, but they do not use these
authorize take under certain                 databases to comprehensively collect and analyze sea turtle take data.
circumstances. The act also requires         Specifically, not all of the databases require entry of data on anticipated and
recovery plans for each listed species,      actual take. The services also maintain separate documents that collect
which set forth broad goals and              information about anticipated take, but these documents are not structured to
recovery strategies. GAO was asked to        easily allow analysis of total anticipated take and do not track actual take.
determine the extent to which the
                                             According to some experts and NMFS officials GAO spoke with, total take should
services (1) coordinate their sea turtle
                                             be considered when the services determine whether proposed actions are likely
protection activities, (2) collect and
analyze take data, (3) clearly explain       to jeopardize species or approve additional take authorizations.
how they determine if a proposed             Biological opinions prepared by NMFS and FWS do not clearly explain how the
action will jeopardize sea turtles, and      services determine that an action anticipated to result in the take of sea turtles
(4) have developed operational plans         will not jeopardize their continued existence. Guidance developed by the services
to help realize recovery goals. To           states that the opinions should be written so the general public can trace the path
address these issues, GAO reviewed           of logic to the conclusion. But some experts GAO spoke with said, and GAO’s
documents and interviewed officials
                                             review of selected biological opinions found, that the opinions may not clearly
from both services and experts,
                                             describe why the services conclude that a particular action, such as commercial
including state agency officials,
university researchers, and
                                             fishing anticipated to harm turtles, will not jeopardize the species’ existence. If
representatives of environmental and         the analyses and decisions in the opinions are not clear, neither Congress nor
industry groups.                             the public can be assured that the services are adequately protecting vulnerable
                                             sea turtle populations as required by the Endangered Species Act.
What GAO Recommends                          Neither NMFS nor FWS has developed its own service-specific operational plans
GAO is making four recommendations           describing the actions it will perform to achieve the goals in their jointly prepared
to the Secretaries of Commerce and           sea turtle recovery plans. In the absence of service-specific plans, the services
the Interior to improve the services’        rely on the jointly developed recovery plans to guide their sea turtle protection
sea turtle coordination, data collection,    and recovery efforts. But GAO’s review of these recovery plans found that they
reporting, and planning efforts. Both        do not include key elements of effective planning, such as performance
NMFS and FWS generally agreed with           measures to gauge progress toward goals. Without service-specific plans and
the recommendations.                         performance measures, neither service can ensure that it is taking the steps
                                             needed to realize sea turtle recovery goals.



View GAO-12-242. For more information,
contact Anu K. Mittal at (202) 512-3841 or
mittala@gao.gov.

                                                                                      United States Government Accountability Office
Contents


Letter                                                                                   1
               Background                                                                4
               NMFS and FWS Coordinate on Some but Not All Take Decisions                8
               Neither Service Uses Its Section 7 and Section 10 Databases to
                 Comprehensively Collect and Analyze Data on Anticipated or
                 Actual Take                                                           13
               NMFS’s and FWS’s Biological Opinions Do Not Clearly Explain
                 Rationales for Determining Whether an Action Will Jeopardize
                 Sea Turtles                                                           18
               Neither NMFS nor FWS Has Developed Its Own Operational Plan
                 on How to Achieve the Goals Established in Sea Turtle Recovery
                 Plans                                                                 21
               Conclusions                                                             24
               Recommendations for Executive Action                                    25
               Agency Comments and Our Evaluation                                      26

Appendix I     Objectives, Scope, and Methodology                                      29



Appendix II    Comments from the Department of Commerce                                33



Appendix III   Comments from the Department of the Interior                            38



Appendix IV    GAO Contact and Staff Acknowledgments                                   40




               Page i                                     GAO-12-242 Endangered Sea Turtles
Abbreviations

FWS               Fish and Wildlife Service
NMFS              National Marine Fisheries Service
NOAA              National Oceanic and Atmospheric Administration




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Page ii                                                GAO-12-242 Endangered Sea Turtles
United States Government Accountability Office
Washington, DC 20548




                                   January 31, 2012


                                   The Honorable Sheldon Whitehouse
                                   Chairman
                                   Subcommittee on Oversight
                                   Committee on Environment and Public Works
                                   United States Senate

                                   The Honorable Sam Farr
                                   House of Representatives

                                   Sea turtles—ancient, highly migratory reptiles—today number worldwide
                                   just a small percentage of their populations from a century ago. Although
                                   six species are still found in the waters or on the beaches of the United
                                   States, all six—green, hawksbill, Kemp’s ridley, leatherback, loggerhead,
                                   and olive ridley—are listed as endangered in all or part of their range1
                                   under the Endangered Species Act. 2 These sea turtle species have been
                                   protected under the act since the 1970s, but no species has recovered to
                                   an extent that would allow its removal from the list of protected species or
                                   a change in its status from endangered to threatened.

                                   Sea turtles inhabit both ocean and land environments, and two federal
                                   agencies are charged with protecting them under the act. Sea turtles
                                   spend most of their lives in the open ocean, but female sea turtles must
                                   return to land to lay their eggs. Sea turtles are vulnerable to a number of
                                   threats, both at sea and on land. Some of these threats are the result of
                                   human-caused actions, including unintentional injury or death due to




                                   1
                                    Range refers to the geographic area a species is known or believed to occupy.
                                   2
                                    16 U.S.C. §§ 1531-1544 (2006). Under the Endangered Species Act, “endangered
                                   species” is defined, generally, as “any species which is in danger of extinction throughout
                                   all or a significant portion of its range,” and “threatened species” is defined as “any
                                   species which is likely to become an endangered species within the foreseeable future
                                   throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (20) (2006).
                                   Certain populations of green, loggerhead, and olive ridley turtles are listed separately as
                                   threatened.




                                   Page 1                                                  GAO-12-242 Endangered Sea Turtles
(1) fishing in state, federal, and international waters; 3 (2) environmental
contamination from events such as oil spills; or (3) loss or degradation of
nesting habitat through beachfront development. Two federal agencies—
the Department of Commerce’s National Marine Fisheries Service
(NMFS), within the National Oceanic and Atmospheric Administration
(NOAA), and the Department of the Interior’s Fish and Wildlife Service
(FWS)—share the responsibility for managing the conservation and
recovery of sea turtles. 4 NMFS is specifically responsible for managing
sea turtle populations in the marine environment, and FWS is specifically
responsible for managing them on land. 5 Each service has multiple
regional or field offices that carry out sea turtle protection in particular
geographic areas.

The Endangered Species Act provides direction for conserving
threatened and endangered species, including sea turtles. Specifically,
section 9 of the act generally prohibits the “take” of endangered species.
The act defines take as “to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct.” 6
Under section 7 of the act, federal agencies must ensure that any action
they authorize, fund, or carry out is unlikely to jeopardize the continued
existence of a listed species or destroy or adversely modify its critical
habitat. 7 To fulfill this responsibility, federal agencies must consult with
the services when their actions may affect listed species or critical habitat.
Formal consultations generally result in the issuance by the applicable
service of reports known as “biological opinions,” which discuss in detail
the effects of proposed actions on listed species and their critical habitat,



3
 State waters generally extend from the shore to 3 nautical miles offshore. Federal waters,
which are waters under the jurisdiction of the federal government, generally extend from 3
nautical miles to 200 nautical miles offshore. Waters beyond 200 nautical miles offshore
are considered international waters.
4
 Throughout this report, we refer to NMFS and FWS as “the services."
5
 Authority for sea turtle management has been delegated by the Secretary of Commerce
to NMFS’s Assistant Administrator for Fisheries and by the Secretary of the Interior to the
Director of FWS. Throughout this report, we refer to requirements on the Secretaries as
requirements on the services.
6
 16 U.S.C. § 1532(19) (2006).
7
 Throughout this report, the term “listed species” includes not only the species itself but
also its critical habitat, if critical habitat has been designated under the Endangered
Species Act.




Page 2                                                   GAO-12-242 Endangered Sea Turtles
as well as that service’s opinion on whether a proposed action is likely to
jeopardize a species’ continued existence or destroy or adversely modify
its critical habitat. The opinion also determines the quantity or extent of
anticipated “incidental take”—that is, take that is not intentional but occurs
nonetheless as a result of carrying out an agency action. The act
generally requires development of “recovery plans” for each listed
species, which set forth goals, criteria, and actions to guide the services’
recovery efforts. The act also requires certain entities, such as scientists
engaged in research on listed species or landowners engaged in activity
likely to cause the incidental take of a listed species, to obtain a permit
from the appropriate service.

You asked us to investigate the degree of coordination between NMFS
and FWS related to sea turtle protection and take determinations.
Accordingly, this report examines the extent to which the two services
(1) coordinate their sea turtle protection activities, (2) collect and analyze
data on anticipated and actual sea turtle take, (3) clearly explain in their
biological opinions the rationales they use when determining whether a
proposed action will jeopardize sea turtles, and (4) have developed
operational plans to help realize the goals of recovery plans for sea turtle
species.

We addressed these objectives by taking a variety of steps. Specifically,
we reviewed the memorandum of understanding between NMFS and
FWS regarding their sea turtle protection activities. We also reviewed the
information contained in four databases the services use to collect
information on anticipated and actual take of sea turtles. We reviewed all
22 of the biological opinions issued from January 1, 2006, to January 1,
2011, by NMFS for federal fisheries and a random sample consisting of
21 of the 119 biological opinions issued by FWS for the same time period
that included actions anticipated to result in the take of sea turtles. 8
Additionally, we reviewed all of the sea turtle recovery plans and other
related plans developed by the services. To gain a national perspective
on sea turtle protection efforts, we interviewed NMFS’s and FWS’s


8
 The term “fishery” means one or more stocks of fish that can be treated as a unit for
purposes of conservation and management and that are identified on the basis of
geographic, scientific, technical, recreational, and economic characteristics. We use the
term “federal fishery” to mean a fishery managed by the regional fishery management
councils and NMFS. The councils are composed of federal and state fishery management
officials, as well as active fishery participants, among others, and are responsible for
developing management plans for fisheries in federal waters.




Page 3                                                GAO-12-242 Endangered Sea Turtles
             national sea turtle coordinators and officials with national sea turtle
             protection responsibilities. We also interviewed a range of experts and
             other individuals—including university researchers; representatives of
             nongovernmental organizations, such as Oceana; and representatives
             from regional fishery management councils—whom we identified as
             knowledgeable about national sea turtle protection efforts. To examine
             the services’ sea turtle protection efforts in greater depth, and to better
             understand any regional differences, we gathered information for four
             states: Florida, Hawaii, Massachusetts, and Texas. We selected these
             states primarily because of their sea turtle nesting populations, federally
             managed fisheries offshore, and a relatively high level of anticipated take
             associated with these fishing operations. For these four states, we
             analyzed documentation and interviewed a diverse range of individuals
             involved in sea turtle protection, including the services’ regional and field
             office officials; other federal and state agency officials; and experts from
             industry, such as the Southern Shrimp Alliance, and from environmental
             groups, such as the Sea Turtle Conservancy. Appendix I discusses our
             scope and methodology in more detail.

             We conducted this performance audit from February 2011 to January
             2012, in accordance with generally accepted government auditing
             standards. Those standards require that we plan and perform the audit to
             obtain sufficient, appropriate evidence to provide a reasonable basis for
             our findings and conclusions based on our audit objectives. We believe
             that the evidence obtained provides a reasonable basis for our findings
             and conclusions based on our audit objectives.


             The purpose of the Endangered Species Act is to conserve threatened
Background   and endangered species, including sea turtles, and the ecosystems on
             which they depend. The act provides for listing species that need
             protection; designating habitat deemed critical to a listed species’
             conservation; protecting listed species against certain harms caused by
             federal and nonfederal actions; conducting 5-year reviews on species’
             status; and developing recovery plans that contain objective, measurable
             criteria that, when met, would result in a determination that the species
             can be removed from the list.




             Page 4                                         GAO-12-242 Endangered Sea Turtles
Among provisions in the act, section 9 generally prohibits the take of
listed endangered animal species. 9 The act, however, also provides for
key exceptions to section 9’s take prohibition. Specifically:

•    Section 10, among other things, provides an avenue for entities to
     obtain permits for activities that may result in the take of listed
     species:

     •   Under section 10(a)(1)(A), the services can issue permits for take
         resulting from scientific research or actions to enhance the
         propagation or survival of a listed species.

     •   Under section 10(a)(1)(B), the services can issue “incidental take
         permits” for incidental take by nonfederal entities, such as take
         anticipated from states’ permitting construction on a beach.

•    Section 7 directs federal agencies to consult with the services when
     these agencies determine that an action they authorize, fund, or carry
     out could affect listed species. 10 Formal consultation is required
     unless the action agency finds, with either NMFS’s or FWS’s written
     concurrence, that a proposed action is not likely to adversely affect
     the species. To initiate a formal consultation, an action agency
     submits to the appropriate service a written request describing the
     proposed action and its likely effects on the listed species and its
     habitat. The consultation usually ends with NMFS or FWS issuing a
     biological opinion.




9
 Section 4(d) of the act authorizes the services to extend the prohibition against take to
threatened species. Both services have done so with respect to threatened sea turtle
species.
10
  Section 7 also applies to the services’ own activities, including issuing section 10
permits to nonfederal parties; in such cases, the service conducts an “intraservice”
consultation.




Page 5                                                   GAO-12-242 Endangered Sea Turtles
Both take permits and take statements describe the take that has been
authorized and specify the conditions under which it may occur. 11 Take is
generally expressed as the number of individuals of a species killed or
injured, except in circumstances where this number would be difficult to
determine or monitor. In these instances, a substitute measure of the
species resource loss is used, such as the miles of beach expected to be
affected. In addition, a section 7 take statement specifies “reasonable and
prudent measures,” that is, steps that may minimize the impact to the
species of any take anticipated to occur. An incidental take permit is
conditioned upon an applicant’s submission of a habitat conservation plan
that specifies steps the applicant will take to minimize and mitigate
anticipated take. For example, an action may be restricted to a time of
year when the species is not present, buffer zones might be required
around known nesting areas, or species might have to be trapped and
moved elsewhere before an action can proceed. A habitat conservation
plan is not required to obtain a scientific research permit, but the services’
regulations subject such permits to various conditions as well.

The services’ biological opinions, which are to be based on “the best
scientific and commercial data available,” constitute the services’
determinations as to whether the effects of an action, when viewed
against a species’ status, are likely to jeopardize that species’ continued
existence. In their biological opinions, the services are to evaluate, among
other things, a species’ current status, its “environmental baseline,” 12 and
the effects on the species of the action, including the quantity or extent of
incidental take that service biologists anticipate will result from the action.
Actual take occurring as a result of an action could be higher or lower


11
   Through permits issued under section 10, the services formally authorize the taking of
listed species. Under section 7, however, the services do not formally authorize the taking
of listed species by federal agencies; rather, they consult with federal entities on their
proposed actions. While federal agencies are shielded from the act’s take prohibition if
they comply with the conditions set out in an incidental take statement, they do not need
the services’ permission to proceed with an action. Nevertheless, because an incidental
take statement has the same practical effect as a take authorization associated with
section 10 permits—that is, an incidental take statement effectively authorizes incidental
take—for simplicity, we refer generally to “authorized take” or “anticipated take” when
discussing take in the context of both sections 7 and 10.
12
  To determine the environmental baseline, the services analyze the effects of past and
present human and natural factors leading to a species’ current status, its habitat, and
ecosystem within the action area. The environmental baseline includes the impacts of all
federal, state, or private actions—including the anticipated impacts of all proposed federal
actions in the area—that have already undergone separate consultation with the services.




Page 6                                                  GAO-12-242 Endangered Sea Turtles
than the anticipated estimate. Biological opinions also contain provisions
directing the action agency to monitor the action’s effects on listed
species and to reenter into, or reinitiate, consultation if the quantity or
extent of anticipated take is exceeded.

In addition, section 4 of the Endangered Species Act requires the
services to develop and implement recovery plans for the conservation
and survival of threatened and endangered species, unless the services
determine that a plan will not promote their conservation. The act directs
the services, to the maximum extent practicable, to incorporate in each
recovery plan (1) a description of site-specific management actions
necessary to achieve the plan’s goal for the conservation and survival of
the species; (2) objective, measurable criteria that will result in a
determination that the species can be removed from the list of threatened
and endangered species; and (3) estimates of the time and cost required
to carry out those actions needed to achieve the plan’s goal and to
achieve intermediate steps toward the goal. Recovery teams, which may
include independent scientists and experts, can be formed to advise and
assist the services in developing and implementing recovery plans.
Section 4 of the act also requires the services to review the status of each
listed species at least once every 5 years to determine whether any
species should be removed from the list, changed from endangered to
threatened, or changed from threatened to endangered.

NMFS and FWS have divided their responsibilities for sea turtle
protection among their respective staff located in headquarters and
regional and field offices. Both services have established national sea
turtle coordinators to oversee each service’s activities, with NMFS’s
national coordinator located in headquarters in the Washington, D.C.,
area and FWS’s national coordinator located in its Jacksonville, Florida,
field office. Both services’ headquarters also have staff responsible for
implementing various aspects of the Endangered Species Act, although
these staff may have other responsibilities in addition to sea turtle
protection. In addition, each service has a network of regional or field
offices with sea turtle protection responsibilities, which coordinate with
other offices within the service when necessary. For example, NMFS
relies primarily on four regional offices (Northeast, Pacific Islands,
Southeast, and Southwest) to issue sea turtle section 7 take statements
and lead other protection efforts. In each of these four regions, NMFS
also has fisheries science centers that conduct research on marine
resources, including sea turtles. Similarly, FWS has multiple regional and
field offices with responsibility for sea turtle protection efforts. Unlike
NMFS’s oversight, however, FWS’s oversight of sea turtles falls primarily


Page 7                                        GAO-12-242 Endangered Sea Turtles
                     under the purview of its Southeast and Southwest regional offices and a
                     few field offices—in particular, its North Florida Ecological Services Office
                     in Jacksonville—in part because most sea turtle nesting in the United
                     States takes place on beaches in the Southeast. According to officials
                     from both services and representatives of external parties whom we
                     spoke with, the regional and field offices from both services also work
                     with external parties, such as state agencies, industry, and
                     nongovernmental organizations, on sea turtle protection activities.


                     The services have coordinated with each other on some but not all of
NMFS and FWS         their take authorizations, even though experts have pointed out the
Coordinate on Some   importance of such coordination when assessing threats to sea turtle
                     species. Given the services’ joint administrative responsibilities for
but Not All Take     protecting sea turtles under the Endangered Species Act, a memorandum
Decisions            of understanding was established that defined those responsibilities and
                     called for coordination of certain activities. This memorandum, however,
                     has not been updated since it went into effect in 1977 and lacks clarity on
                     several points.

                     We found that the services coordinate some of their activities when
                     deciding whether to authorize sea turtle take. For example:

                     •    The services have sometimes coordinated before issuing or denying
                          permits under section 10(a)(1)(A) of the Endangered Species Act.
                          Specifically, NMFS officials told us that before issuing science and
                          research permits, they routinely consult with FWS or the states,
                          unless the proposed action is expected to occur solely in federal
                          waters. Similarly, FWS officials told us that when deciding whether to
                          permit facilities for sea turtle rehabilitation, they have also coordinated
                          with NMFS by consulting with the coordinator of NMFS’s sea turtle
                          stranding program and with NMFS’s sea turtle veterinarian regarding
                          the best care for the species. 13




                     13
                       NMFS coordinates the Sea Turtle Stranding and Salvage Network, which operates in
                     most coastal regions of the United States. The network was established in 1980 to collect
                     information on and document strandings of sea turtles and includes federal, state, and
                     private partners. NMFS defines strandings as turtles that wash ashore, dead or alive, or
                     are found floating dead or in a weakened condition.




                     Page 8                                                GAO-12-242 Endangered Sea Turtles
•     For section 7 take statements, officials from both services told us that
      they work together if an action is expected to affect sea turtles both on
      land and in marine environments. Such coordination typically occurs
      in the services’ regional or field offices. For example, FWS officials
      told us that they coordinate with NMFS officials for land-based
      projects that may also have in-water components, such as
      breakwaters. 14
In contrast, we also found instances where the services have not
coordinated or shared take information before making take decisions. For
example:

•     According to NMFS officials we spoke with, for incidental take permits
      issued under section 10(a)(1)(B), NMFS has not coordinated on all
      permit applications in the past. 15 NMFS officials also told us, however,
      that they are currently coordinating with FWS on an application for
      gillnet fishing in state waters in North Carolina. 16 Similarly, FWS
      officials told us that they do not send NMFS applications for either
      type of section 10 permit for review and comment before issuance.
      The officials also told us that they solicit public comments via the
      Federal Register, which can include comments from local, state, and
      federal agencies. 17

•     With regard to section 7 take statements, if an action is expected to
      fall solely within the purview of one service, which is typically the
      case, officials from both services told us that they generally do not
      coordinate or share take information before issuing the take
      statement. Coordination on section 7 take statements is important,
      officials from both services told us, because such take constitutes the
      majority of authorized sea turtle take and, for NMFS, represents the
      majority of lethal take. In some instances, however, coordination




14
  Breakwaters are structures placed offshore to reduce the amount of wave energy
reaching a protected area.
15
  In commenting on a draft of this report, NOAA stated that to date NMFS has issued only
four section 10(a)(1)(B) permits, three of which are still active. Similarly, FWS officials told
us that FWS has issued few section 10(a)(1)(B) permits.
16
  Gillnets are large, rectangular, mesh nets that can entangle sea turtles, preventing them
from surfacing for air and thereby drowning them.
17
    The Endangered Species Act requires both services to seek such comments.




Page 9                                                    GAO-12-242 Endangered Sea Turtles
     between the services does occur. For example, officials from NMFS’s
     Pacific Islands Regional Office told us that they coordinate closely
     with FWS and also send FWS copies of all section 7 consultations.
     FWS officials told us that they recently coordinated with NMFS by
     requesting comments from NMFS officials on a draft programmatic
     biological opinion. The opinion, developed under section 7, applies to
     all sand placement projects in Florida, including beach nourishment
     activities, initiated after the opinion was finalized in 2011. According to
     the officials, such projects account for approximately 90 percent of the
     biological opinions the service develops for sea turtles.

University researchers and representatives of nongovernmental
organizations we spoke with told us that coordination between NMFS and
FWS on section 10 take permits and section 7 take statements is
important because each service should consider take anticipated by the
other service when assessing threats to sea turtle populations as part of
the jeopardy determination process. Specifically, some of these experts
told us that such coordination is necessary because both services are
issuing take statements and permits that can affect a given single species
of sea turtle. As a result, each service should consider all threats to that
species, regardless of whether such threats occur on land or at sea. 18
Moreover, a handbook jointly developed by the services emphasizes the
importance of coordination between NMFS and FWS, stating that
coordination is “critical” when developing section 7 consultations.

Our prior work has also shown the importance of coordination and
information sharing. For example, we found that without coordination
among federal agencies with fragmented or overlapping programs, scarce
funds are wasted, program customers are confused and frustrated, and
the overall effectiveness of the federal effort is limited. 19 Our work has



18
  The services must examine the current status of the species across its entire range, as
well as the environmental baseline of the species within the action area, to make a
jeopardy determination. Rock Creek Alliance v. United States Fish & Wildlife Service, 390
F. Supp. 2d 993, 1010 (D. Mont. 2005). Even within the action area, however, the services
are not necessarily required to numerically add together all sources of take anticipated by
other activities. Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 230-231 (D.D.C. 2005).
Experts we spoke with, however, agreed that tallying anticipated take is an important tool
available to the services as they consider what activities may threaten the continued
existence of sea turtles.
19
  GAO, Managing for Results: Barriers to Interagency Coordination, GAO/GGD-00-106
(Washington, D.C.: Mar. 29, 2000).




Page 10                                                GAO-12-242 Endangered Sea Turtles
also shown that information sharing is a key practice for enhancing and
sustaining collaboration. 20 Because the services are not consistently
sharing information on anticipated take, they may be making jeopardy
determinations about sea turtle species without knowing how much take
the counterpart service has authorized, and the combined take may be
harming threatened and endangered sea turtles and delaying their
recovery.

Given the services’ joint administrative responsibilities for sea turtle
protection, the services in 1977 established a memorandum of
understanding to define their roles. The memorandum calls for the
services to coordinate on certain activities, including consulting with the
other service before publishing regulations, establishing recovery teams,
and issuing or denying “permits.” Officials from both services told us they
have coordinated on some activities as called for in the memorandum,
which is still in effect. For example, the national sea turtle coordinators
from both services jointly lead efforts to develop recovery plans.

We found, however, that the memorandum of understanding is outdated
and has not been updated to reflect changes in the services’ sea turtle
protection efforts. For example, we found that the memorandum calls only
for consultation on “permits,” which, according to officials from both
services, would imply that it applies only to permits described under
sections 10(a)(1)(A) and 10(a)(1)(B) of the Endangered Species Act and
therefore does not call for coordination on section 7 take statements,
even though actions under section 7 account for the majority of sea turtle
take. According to an FWS official, this limitation of the memorandum
may reflect the fact that section 7 take statements were not part of the
process until amendments to the act in 1982, whereas the memorandum
was signed in 1977. In addition, the memorandum designates FWS’s
Federal Wildlife Permit Office as a clearinghouse to retain all applications
for sea turtle permits or certifications; according to an FWS official,
however, FWS no longer has such a clearinghouse.

Moreover, the memorandum of understanding is unclear on the nature
and degree of coordination the services are to engage in. Specifically, we
found the following areas where the memorandum was unclear:



20
 GAO, Results-Oriented Government: Practices That Can Help Enhance and Sustain
Collaboration among Federal Agencies, GAO-06-15 (Washington, D.C.: Oct. 21, 2005).




Page 11                                            GAO-12-242 Endangered Sea Turtles
•   The memorandum does not clearly articulate the coordination-related
    steps each service is to take before issuing or denying take permits.
    For example, the memorandum does not lay out whether a service
    should share information on take it has previously permitted for a
    particular species; neither does the memorandum state whether a
    service should provide the other service a copy of take requests it
    receives or if it is sufficient for the services to simply notify each other
    that a request has been received.

•   The memorandum does not explain at what stages of the take
    permitting process such coordination should occur. For example, the
    memorandum does not specify if the services should coordinate
    (1) upon receipt of a request for a permit for activity anticipated to
    result in take, (2) when analysis within a service is initiated, or (3) after
    a service has completed its evaluation of a permit application.

•   The memorandum leaves room for interpretation by each service on
    what degree of coordination is required. For example, according to
    FWS officials, they interpret the memorandum as calling for general
    cooperation, not necessarily for coordination with NMFS on all the
    specific activities laid out in the memorandum.

Even though the memorandum of understanding is out of date and
unclear, neither service has developed formal guidance to supplement
the memorandum or has offered any plans to update it. Without clear
language and agreement about what degree of coordination is expected
of each service, it is unlikely that consistent, meaningful coordination will
occur.




Page 12                                          GAO-12-242 Endangered Sea Turtles
                       NMFS and FWS each maintain databases that contain information about
Neither Service Uses   take consultations for sea turtles and other species under section 7 of the
Its Section 7 and      Endangered Species Act and take permits under sections 10(a)(1)(A) and
                       10(a)(1)(B). Not all of these databases, however, require entry of
Section 10 Databases   anticipated or actual take data, and the services do not use them to
to Comprehensively     analyze sea turtle take. Instead, the services’ national sea turtle
Collect and Analyze    coordinators have developed their own documents for collecting
                       anticipated take information, although they have not systematically used
Data on Anticipated    them to analyze total take. Our prior work has shown a need for tracking
or Actual Take         total take information, 21 but the services do not plan to update their
                       databases to add such capability.

                       NMFS maintains the following two databases to collect consultation
                       information and some sea turtle take data:

                       •    In NMFS’s Authorizations and Permits for Protected Species
                            database, NMFS staff are required to enter information about take
                            anticipated from permits primarily for scientific research or actions to
                            enhance propagation or survival of a listed species under the
                            Endangered Species Act’s section 10(a)(1)(A). 22 Through the use of
                            this database, NMFS collects a number of details about anticipated
                            take for scientific research permits, including the species and sex of
                            animals to be taken. For example, the database may show that 25
                            juvenile green sea turtles are expected to be captured and released
                            during an activity designed to tag and weigh the turtles and take blood
                            samples. Permittees may directly enter actual take data into the
                            database if they submit the data online to NMFS, but they may also
                            submit such data in writing to NMFS staff. As a result, a NMFS official
                            told us, the database has incomplete data on actual take, although,
                            other officials also told us, for section 10(a)(1)(A) and 10(a)(1)(B)
                            permits, they have other sources of actual take data that are not
                            stored in the database.




                       21
                         GAO, Endangered Species Act: The U.S. Fish and Wildlife Service Has Incomplete
                       Information about Effects on Listed Species from Section 7 Consultations, GAO-09-550
                       (Washington, D.C.: May 21, 2009).
                       22
                         The database also contains limited data on incidental take anticipated by permits for
                       nonfederal entities under section 10(a)(1)(B) of the act, but entry of anticipated and actual
                       take data is not required, nor is such take tracked.




                       Page 13                                                 GAO-12-242 Endangered Sea Turtles
•   NMFS’s Public Consultation Tracking System is used to store data on
    proposed actions by federal agencies consulting with NMFS under
    section 7. Although the database has a narrative field for anticipated
    take data, and staff can use a drop-down menu to label the
    anticipated take as either lethal or injurious, NMFS has no
    requirement for staff to enter this information into the database, and
    the database does not have a field for capturing actual take data. As a
    result, a NMFS official told us, some regions consistently enter take
    data into this database, and others do not.

FWS also maintains the following two databases to collect consultation
information and some take data:

•   FWS’s Service Permit Issuance and Tracking System stores
    information about take anticipated by both types of take permits
    issued under section 10. As a result of an October 2011 update
    making entry of such data mandatory, FWS staff are now required to
    enter anticipated take data into this system. Although the October
    2011 update will help ensure that the information entered into the
    database is more complete, it will still not be comprehensive, in part
    because FWS’s Region 5, which covers the northeastern United
    States, does not use the database for all of its permits, and the
    database does not have a field for capturing actual take data.

•   FWS’s Tracking and Integrated Logging System is used to collect
    information about actions potentially resulting in the take of sea turtles
    by federal agencies consulting with FWS under section 7. It is
    optional, however, for agency staff to enter anticipated and actual take
    data into this database, and the information is entered in a narrative
    form, so data are not entered in a consistent format. For example,
    some entries list miles of beach expected to be affected, while others
    instead list the number of turtles and nests expected to be taken. In
    commenting on a draft of this report, Interior officials said it is not
    possible to determine the exact number of individual sea turtles that
    would be taken during actions such as beach nourishment projects
    because the number of nests on a beach varies annually and the
    exact number of nests missed during surveys cannot be known. In
    addition, the officials questioned the value of “standardized” data.”

In part because of differences in the collection and types of take data in
the services’ databases, we found that the services generally do not use
their databases to systematically analyze anticipated and actual take.
NMFS officials told us, however, that for section 10 permits, because they


Page 14                                        GAO-12-242 Endangered Sea Turtles
have some take data in the Authorizations and Permits for Protected
Species database—as well as some data from sources outside the
database, such as the Public Consultation Tracking System and
published and unpublished literature—they analyze anticipated and actual
take using the database in combination with these other data sources.

In the absence of servicewide databases that comprehensively capture
anticipated take data, both services’ national sea turtle coordinators
maintain documents that collect information about anticipated take. These
documents, however, are not structured to easily allow—nor have the
services provided us clear evidence that they have used them for—
analyzing total anticipated take. For example, NMFS has spreadsheets
with fields, by species, where data on anticipated lethal and nonlethal
take may be entered. According to NMFS officials we spoke with,
because section 10 take permits and section 7 take statements can
authorize take for a single year or over multiple years, some of these data
are in a per-year format, while other data cover several years. In addition,
some data fields contain both numbers and text, making it difficult to
analyze or calculate total anticipated take. 23 As a result, NMFS officials
told us that it can be difficult to analyze total take using these
spreadsheets. Moreover, the spreadsheets do not track actual take, and
therefore NMFS cannot use these spreadsheets to analyze actual take
data. Furthermore, while some officials stated they had access to these
spreadsheets, others did not have access. For example, some NMFS
officials told us that these spreadsheets were regularly provided to
regional officials and used in section 7 consultations. During our review,
however, other NMFS officials told us that the spreadsheets were not
made available to them. In particular, one regional biologist told us he



23
  A congressional committee that in 1982 was considering amendments to the
Endangered Species Act indicated that the committee preferred the incidental take
statement to contain a numerical value: “[W]here possible, the impact should be specified
in terms of a numerical limitation on the federal agency or permittee or licensee.” The
committee recognized, however, that a numerical value would not always be available:
“The Committee recognizes . . . it may not be possible to determine the number of eggs of
an endangered or threatened fish which will be sucked into a power plant when water is
used as a cooling mechanism. The Committee intends only that such numbers be
established where possible.” H.R. Rep. No. 97-567, at 27 (1982). In 2007, the U.S. Court
of Appeals for the Ninth Circuit ruled that if the service chooses to employ a nonnumerical
surrogate for take, the chosen surrogate must be able to perform the functions of a
numerical limitation, in particular, establishing a trigger requiring the parties to reinitiate
consultation. Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1038 (9th Cir.
2007).




Page 15                                                  GAO-12-242 Endangered Sea Turtles
was not aware that anticipated sea turtle take data from each of the
regions were being collected by headquarters. This official remarked that
such data would be useful to him when making jeopardy determinations.

Similarly, FWS’s national sea turtle coordinator told us that FWS recently
developed a document in which the agency can collect data on all of the
service’s anticipated sea turtle take and that she plans to share this
document with FWS field officials who conduct section 7 consultations on
projects that may affect sea turtles. This step is encouraging, but we
noted a number of limitations in the document that we believe could
hinder its usefulness in calculating total anticipated take. For example,
anticipated take is not expressed in a standardized format and instead
may be expressed in terms of miles or square feet of affected beach. In
one case an action was expected to affect 7.7 linear miles of beach, while
in another the action was expected to affect almost 15,000 square feet. In
addition, the document includes actions that may occur over different
periods. For example, one action was expected to last 25 years, while
another was expected to last only 8 months. This variability may also
complicate any analysis of total anticipated take over a certain period.

In commenting on a draft of this report, Interior stated that FWS officials
face difficulties in estimating and monitoring actual take. According to
Interior, much of FWS’s section 7 consultation involves beach
nourishment projects. Most of the take associated with these projects is
due to nests being destroyed because they were not detected and
removed before construction activities began or due to a reduction in the
number of new sea turtle nests established because of disturbance from
construction activities. Such take would likely be small and difficult to
detect, according to Interior’s comments. Interior also commented that the
reason FWS officials express take as the amount of beach area affected
is the difficulty they face in estimating the actual number of sea turtles or
nests that are likely to be destroyed. In addition, Interior stated that take is
not expressed over a consistent time period because the agency is
limited to analyzing take anticipated from proposed actions for the time
periods that are requested, which may be for several months or over
several years. According to Interior’s comments, estimating, tracking, and
analyzing take is further complicated by the fact that take may be lethal or
nonlethal and may affect the turtles during different life stages. For
example, because of the high natural mortality of sea turtles during their
earlier life stages, take of sea turtle eggs and hatchlings caused by beach
nourishment has much less reproductive impact on the population than
take of older turtles in commercial fisheries under a NMFS take
authorization.


Page 16                                         GAO-12-242 Endangered Sea Turtles
Although we recognize the inherent difficulties involved in estimating and
monitoring actual take, according to some experts and NMFS officials we
spoke with, and previous work that we have conducted, it is important for
the services to gather information on total take. Specifically, according to
some experts and NMFS officials we spoke with, total take should be
considered when making jeopardy determinations or approving additional
take authorizations. 24 Such considerations are particularly important in the
case of sea turtles because consultations occur at several NMFS regional
and FWS regional and field offices, and sea turtles are both highly
migratory and wide-ranging. Further, as we reported in May 2009, it is
critical for federal staff involved in consultations to track total take for a
species to strengthen their understanding of its status and to factor that
knowledge into future consultation decisions. 25 We concluded at the time
that without total take information for a species, FWS staff may not be
able to effectively evaluate the collective impacts of federal actions over
time, across multiple offices, and across species’ ranges. Our report also
noted that development of a systematic take-tracking system would be
particularly useful for wide-ranging species. We recommended that FWS
continue to develop existing databases, in as strategic and expeditious a
manner as possible, to enable systematic tracking of cumulative take for
all species affected by formal consultations.

Nevertheless, officials we spoke with from both services told us that
because of limited funding, among other reasons, they have no plans to
update any of the databases to require the entry of anticipated and actual
take. For example, NMFS officials told us they plan to launch a new
Public Consultation Tracking System in 2012, but because of a lack of
funding, the new system is not likely to add a data field for actual take. In



24
  The services have been sued by environmental groups over the years because of how
they calculate the environmental baseline for listed species. For example, one court held
that an environmental baseline calculation was inadequate where the service merely listed
the other activities affecting the species without making them part of its analysis.
Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 127-128 (D.D.C. 2001). When the
agencies issued new biological opinions, the court clarified that a biological opinion is
adequate if it takes the environmental baseline seriously and makes a concerted effort to
evaluate the impact of the agency’s proposed action against that backdrop. Defenders of
Wildlife v. Norton, 2003 U.S. Dist. LEXIS 26558, (D.D.C. Jan. 7, 2003). In Oceana v.
Evans, the same court specifically found that the environmental baseline analysis was
adequate where it discussed anticipated take from other projects, even though it did not
numerically add together take from different sources.
25
 GAO-09-550.




Page 17                                               GAO-12-242 Endangered Sea Turtles
                         addition, according to an FWS official, no implementation schedule has
                         been set for proposed enhancements to the Tracking and Integrated
                         Logging System database. We believe that by not modifying their existing
                         or planned databases, the services will not be able to use them to collect,
                         analyze, or communicate complete information on anticipated and actual
                         take that has been authorized. In commenting on a draft of this report,
                         NOAA noted that NMFS is aware that some take occurs that has not
                         been authorized by either NMFS or FWS, such as ongoing take in state
                         fisheries, and that to have a comprehensive view of the status of sea
                         turtle species requires consideration of both authorized and unauthorized
                         take.


                         The services have jointly developed a handbook stating that a biological
NMFS’s and FWS’s         opinion stemming from a section 7 consultation under the Endangered
Biological Opinions      Species Act should, among other things, be written so that the general
                         public can understand the logic that led to the biological conclusion. But
Do Not Clearly           sea turtle experts told us, and we also found, that the services’ biological
Explain Rationales for   opinions do not clearly describe how they reach their conclusions. 26 Some
Determining Whether      officials from both services acknowledged that their biological opinions
                         are not always clear.
an Action Will
Jeopardize Sea           In 1998, NMFS and FWS jointly developed a handbook to provide internal
                         guidance to assist staff responsible for preparing biological opinions as
Turtles                  part of the section 7 consultation process. The handbook, among other
                         things, emphasizes the importance of clarity and conciseness, stating that
                         biological opinions should be written so the general public can understand
                         the logic that led to the biological conclusion and be complete enough to
                         withstand the rigors of a legal review.



                         26
                           Our review focused solely on whether the biological opinions themselves were clear and
                         transparent using the services’ section 7 consultation handbook’s criterion that the
                         opinions should be written so the general public could understand the services’
                         determinations. Our findings should not be interpreted as an assessment of whether the
                         biological opinions adhere to applicable laws. Generally speaking, if the rationale of such
                         an opinion were to be challenged in court, the court would apply a test that is fairly
                         deferential to the service. It would not second-guess the service’s scientific or technical
                         decisions as long as a reasoned basis for the service’s conclusions could reasonably be
                         discerned from the entire administrative record supporting the opinion. See, for example,
                         Oceana v. Evans, 384 F. Supp. 2d 203, 224-25. See also Alaska Dep’t of Envtl.
                         Conservation v. EPA, 540 U.S. 461, 497 (2004), and Bowman Transp., Inc. v. Arkansas-
                         Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).




                         Page 18                                                GAO-12-242 Endangered Sea Turtles
Despite the call for clarity in the services’ handbook, some sea turtle
experts we spoke with told us that they believe the opinions do not clearly
explain how the services determined that an action anticipated to result in
take of sea turtles will or will not jeopardize the species’ continued
existence. Furthermore, according to some experts and officials we spoke
with, they believe the opinions also should make clear to what extent the
service considered all sources of take. Without a full accounting of take
previously authorized within a service and by the other service—as well
as take resulting from other sources, such as fisheries not under federal
jurisdiction—the opinions may not consider the full range of take that sea
turtle populations are subjected to.

Our review of selected biological opinions developed by the services
found a number of examples of these same concerns. Specifically, we
found that:

•   Although biological opinions can contain detailed information on,
    among other things, the proposed action, the species likely to be
    affected, and threats to their survival, it was not always clear how the
    services analyzed and synthesized the information presented into a
    determination of jeopardy or no jeopardy. For example:
    •     In one NMFS biological opinion we reviewed, NMFS determined
          that over a 3-year period, despite a decline in the number of
          loggerhead nests on U.S. shores and a lack of data on the
          species’ overall abundance, the anticipated lethal take of 346
          loggerhead sea turtles by Atlantic shark fisheries would not
          measurably affect loggerhead survival. The biological opinion did
          not present a clear explanation of how NMFS reached this
          conclusion, however, and we could not trace the logic from the
          biological information presented in the opinion to the conclusion
          NMFS reached that this particular level of loggerhead sea turtle
          take would not jeopardize the species.

    •     In one section 7 consultation about a proposed beach sand
          replenishment project, where some take of green, hawksbill,
          Kemp’s ridley, leatherback, and loggerhead sea turtles was
          anticipated, the biological opinion prepared by FWS provided
          information about the species (such as population and nesting
          trends) and potential effects of the proposed action (such as burial
          of nests or hatchlings from the sand placement). But it was not
          clear from the opinion how such information was factored into the
          analysis or how FWS incorporated this information into the final




Page 19                                         GAO-12-242 Endangered Sea Turtles
          jeopardy determination. This biological opinion was particularly
          confusing because the conclusion discusses the take in terms of
          the number of miles of beach affected, not the number of nests
          affected, as one would have expected from the information
          presented in the body of the opinion.

•   The opinions do not always make clear the extent to which all sources
    of take for a species were considered. For example:

    •     In a biological opinion we reviewed concerning the spiny dogfish
          fishery, NMFS describes 12 other fisheries operating in the same
          geographic area for which it had previously authorized the take of
          loggerhead, leatherback, Kemp’s ridley, and green turtles.
          Although NMFS’s biological opinion for the spiny dogfish fishery
          acknowledged the existence of the 12 other fisheries, the text of
          the opinion did not state the extent to which NMFS considered the
          cumulative take of all 13 fisheries in determining whether the spiny
          dogfish fishery would jeopardize the four sea turtle species in that
          area.

    •     Three biological opinions prepared by FWS within one 6-month
          period focused on the effects on the green, hawksbill, Kemp’s
          ridley, leatherback, and loggerhead sea turtles of replenishing
          beaches in three “action areas” within a single Florida county. In
          each of the three opinions, FWS concluded that the relatively
          small percentage of beach affected by the proposed action would
          not jeopardize the species. What is not clear from our review of
          the biological opinions, however, is whether or to what extent
          FWS considered, among other factors, the anticipated take from
          the first of the three projects when developing the second opinion
          or considered the anticipated take from the first two projects when
          developing the third opinion. Under the Endangered Species Act,
          the environmental baseline section of the services’ biological
          opinions must consider the anticipated impacts of other activities
          that have undergone or are undergoing section 7 consultation in
          the action area. At least one court has noted, however, that the




Page 20                                         GAO-12-242 Endangered Sea Turtles
                                  services must consider all information about threats both within
                                  and outside the action area in making jeopardy determinations. 27

                        Some officials from both services acknowledged that the biological
                        opinions they prepare are not always clear. Specifically, some NMFS
                        officials we spoke with acknowledged that their opinions are not always
                        transparent. In fact, materials used to train NMFS staff on how to write
                        effective biological opinions have also recognized this weakness.
                        Specifically, the training materials note that biological opinions routinely
                        do not link the facts and evidence to conclusions and, as a result, “leave
                        readers to form a picture of how this evidence supports our conclusion.”
                        FWS officials also told us that including clear and transparent rationales
                        in biological opinions is a struggle for all listed species, not just sea
                        turtles. Nonetheless, if the analyses and decisions documented in
                        biological opinions are not transparent, neither Congress nor the public
                        can be assured that the services are adequately protecting vulnerable
                        sea turtle populations as required by the Endangered Species Act.


                        Neither service has developed its own operational plan describing the
Neither NMFS nor        actions it will take to achieve goals set forth by sea turtle recovery plans.
FWS Has Developed       In the absence of such service-specific operational plans, officials we
                        spoke with from each service said they use the recovery plans to guide
Its Own Operational     their sea turtle protection activities. We found, however, that these
Plan on How to          recovery plans do not include key elements of effective planning, that the
Achieve the Goals       services do not always consider the recovery plans’ goals when
                        performing day-to-day activities, and that the jointly developed recovery
Established in Sea      plans do not provide each service with operational plans specific to each
Turtle Recovery Plans   service. As a result, some regional NMFS officials are beginning to
                        develop such plans, although FWS officials are not.

                        The services have developed 11 joint sea turtle recovery plans, which
                        provide guidance that includes both high-level goals and specific actions
                        that the services use to guide their recovery efforts. We did not review


                        27
                          The court noted that the Endangered Species Act’s regulations allow FWS to limit its
                        cumulative effects analysis to the action area for the project being examined, but the
                        service’s evaluation of the species’ current status and ultimate jeopardy determination are
                        not limited in geographic scope. Rock Creek Alliance v. United States Fish & Wildlife
                        Service, 390 F. Supp. 2d 993, 1001, 1010 (D. Mont. 2005). Thus, FWS must examine the
                        current status of a species across its entire range, along with the effects of the action in
                        the action area, to make a jeopardy determination.




                        Page 21                                                 GAO-12-242 Endangered Sea Turtles
these plans for compliance with the legal requirements for such plans
under the Endangered Species Act. Instead, we reviewed them to see
whether they included key elements of effective planning, which we have
identified in previous work. 28 Our review found that they do not. For
example, our prior work on strategic planning has shown that an effective
plan should describe, among other things, specific activities managers
and staff are to engage in to meet the plan’s goals, as well as how an
agency’s performance goals relate to the plan’s overall goals. But we
found that the joint sea turtle recovery plans provide both services with
high-level goals and some specific actions and direction for recovery
efforts without detailing specific activities each service’s managers and
staff are to engage in to achieve these goals and without linking the
services’ annual performance goals to recovery plan goals. For example,
the Northwest Atlantic loggerhead recovery plan sets a goal of increasing
nests annually to at least 14,000 in certain areas. The recovery plan
describes high-level actions (such as establishing a network of study sites
to monitor trends in the species’ abundance while at sea), but it does not
lay out specific steps the services should take or the performance
measures they should use to ensure they are making progress toward
achieving this goal.

Moreover, some experts and NMFS officials indicated that the services
have not always considered the goals laid out in recovery plans when
performing day-to-day activities related to sea turtles or when writing
biological opinions and making jeopardy determinations that authorize
take. Specifically, one researcher commented that the services have “an
incredible tool” in the form of species recovery plans but that there is a
“disconnect” between these plans and the biological opinions they
prepare. Specifically, in the view of individuals knowledgeable about sea
turtles, biological opinions should, but currently do not, demonstrate how
take anticipated from a proposed action will not hinder progress toward
recovery plan goals. Similarly, some experts and officials from NMFS
science centers observed that biological opinions make little reference to
recovery plans and that it is difficult to understand how the criteria for
recovery laid out in these plans factor in when NMFS determines in an
opinion whether a proposed action will jeopardize sea turtle populations.
In commenting on a draft of this report, Interior stated that FWS has



28
 GAO, Agencies’ Strategic Plans under GPRA: Key Questions to Facilitate
Congressional Review, GAO/GGD-10.1.16 (Washington, D.C.: May 1997).




Page 22                                            GAO-12-242 Endangered Sea Turtles
mentioned recovery goals in the service’s biological opinions for the last
2 to 3 years.

In addition, jointly developed recovery plans do not provide each service
with operational plans specific to each service. NMFS and FWS officials
told us that the services rely on the recovery plans to help set priorities for
each sea turtle species and to obtain funding for actions in line with these
priorities. For example, NMFS officials told us that the service’s
Southwest Fisheries Science Center established a marine turtle program
in 1998 in response to a recovery plan for sea turtles in the Pacific. The
recovery plans, however, apply to the collective sea turtle protection
efforts of both NMFS and FWS and consequently do not provide each
service with its own operational blueprint for working toward the recovery
plans’ goals. For example, all the plans include cost estimates associated
with recovery actions, but because the plans cover both services, they do
not provide each service with an estimate of the resources it will need to
achieve recovery goals. We believe that service-specific operational plans
could describe the specific tasks to be completed on an annual basis by
managers and staff for each individual service to implement the recovery
actions identified in the recovery plans. Although there is no legal
requirement to prepare them, without such plans and performance
measures specific to NMFS and FWS, managers from each service,
Congress, and the public cannot be assured that the services are each
taking, and being held accountable for, the steps needed to achieve the
goals articulated in sea turtle recovery plans.

Recognizing the lack of a national NMFS-specific sea turtle operational
plan, NMFS officials from one region we spoke with said they are
developing an operational plan for their region, and two other regions
have already developed such plans for their regions. For example,
officials from one region told us they are developing a region-specific plan
because they believe that a regional plan is needed to identify region-
specific activities, such as establishing milestones to gauge their progress
toward meeting the recovery goals. The two NMFS region-specific plans
we reviewed contain elements of effective plans, such as results-oriented
goals. The plans also include elements that are absent from sea turtle
recovery plans, such as links between those activities and specific steps
managers and staff are to take and strategies to hold managers
accountable. NMFS’s northeastern regional office, for example,
developed a 5-year plan that identifies the region’s direction and goals.
The plan includes a schedule to implement its sea turtle recovery efforts
for fiscal year 2011. The schedule outlines the sea turtle program’s goals
and activities needed to achieve them, a plan for accomplishing the


Page 23                                        GAO-12-242 Endangered Sea Turtles
              activities, an anticipated completion date for the activities, a specific staff
              person responsible for each activity, the funding required to complete an
              activity, and the status of the activity. Such region-specific operational
              plans, however, do not exist for all of NMFS’s regional offices.

              FWS officials, on the other hand, told us that their regional and field
              offices have not developed FWS-specific sea turtle operational plans and
              do not believe such plans are needed. The officials explained that
              because the vast majority of sea turtle nesting occurs in Region 4 where
              the national sea turtle coordinator is located, they did not believe that
              developing formal operational plans was necessary. Further, officials told
              us that because the service itself cannot directly implement recovery plan
              goals, they do not believe they need a service-specific plan for achieving
              them. For example, service officials told us that they work with
              conservation partners such as the states and nongovernmental
              organizations to put recovery measures in place—such as revisions of
              local ordinances to minimize the impact of beach lighting on sea turtle
              hatchlings. Nevertheless, an operational plan would allow the service to
              identify steps, such as conducting outreach and education, developing
              model ordinances, or establishing grant programs, that could direct and
              better facilitate the conservation partners’ actions toward the recovery
              plan goals.



              For wide-ranging species like sea turtles, which spend some time both on
Conclusions   land and in the sea, coordination between federal agencies tasked with
              their protection is vital. NMFS and FWS have coordinated on some sea
              turtle protection activities, such as developing recovery plans, but the
              services do not consistently coordinate before issuing an incidental take
              statement under section 7 of the Endangered Species Act. A
              memorandum of understanding broadly defines some of the services’
              coordination responsibilities under the act, but it is silent on whether the
              services should share take data related to section 7 of the act, which
              constitutes the majority of take. It also does not clearly articulate the
              coordination-related steps each service is to take before issuing or
              denying a take permit or specify how the services are to share take data.
              Without knowing the extent of take anticipated by the counterpart service,
              each service is missing information about the status of sea turtle species,
              information that could assist in preparing biological opinions. Effective
              coordination is made more difficult by the fact that the services do not
              comprehensively require entry of anticipated and actual take information
              in the databases they use to manage section 7 consultations and section


              Page 24                                         GAO-12-242 Endangered Sea Turtles
                      10 permits. Compiling and analyzing data on anticipated and actual take
                      could help officials determine how many turtles the services have
                      authorized be removed from existing populations and would give them
                      another tool that could help gauge the success of their sea turtle
                      protection efforts.

                      Furthermore, the biological opinions NMFS and FWS develop in
                      association with section 7 consultations do not clearly explain the
                      analyses and rationales used in determining whether proposed actions
                      will jeopardize sea turtles. Without a clear explanation of the analyses
                      and key factors leading to each determination of jeopardy or no jeopardy,
                      the general public cannot easily trace the services’ logic and be assured
                      that the anticipated level of take will not jeopardize sea turtles. Finally, the
                      services do not have service-specific operational plans to help them
                      achieve the goals of the jointly developed sea turtle recovery plans.
                      Without operational plans that include key elements—such as specific
                      activities, milestones, and performance measures—and that each service
                      coordinates among the regional and field offices and with the other
                      service, neither NMFS or FWS can assure Congress or the public that it
                      is making progress in protecting sea turtle populations.


                      To improve the effectiveness of the services’ sea turtle protection and
Recommendations for   recovery efforts, we recommend that the Secretary of Commerce direct
Executive Action      the National Oceanic and Atmospheric Administration’s Assistant
                      Administrator for Fisheries, and that the Secretary of the Interior direct the
                      Director of FWS, to take the following four actions:

                      1. Revise the existing memorandum of understanding to clarify what
                         specific steps the services will take to coordinate before issuing or
                         denying sea turtle take permits, steps that, at a minimum, should
                         include sharing data on the take each service has authorized. In
                         addition, the memorandum should be revised to include section 7 take
                         statements, and the services should adhere to the terms of the
                         revised memorandum.

                      2. Modify each service’s existing databases or develop new ones to
                         require entry and analysis of authorized and actual take data.

                      3. Direct NMFS and FWS staff to write biological opinions so that the
                         analyses they conduct and the rationale they use in arriving at the




                      Page 25                                         GAO-12-242 Endangered Sea Turtles
                         jeopardy or no jeopardy determination for actions anticipated to result
                         in the take of sea turtles are clearer and more transparent.

                     4. Develop operational plans specific to NMFS and FWS, which should
                        describe the activities each service will perform to achieve the goals
                        established in sea turtle recovery plans and include key elements of
                        effective plans that we identified in this report. Such plans should be
                        coordinated among the regional and field offices within both services,
                        as well as between the services’ headquarters.


                     We provided a draft of this report to the Departments of Commerce and
Agency Comments      the Interior for comment. In its written comments, reproduced in
and Our Evaluation   appendix II, NOAA, providing comments on behalf of Commerce,
                     generally agreed with our recommendations. In commenting on the
                     recommendation that the services update the memorandum of
                     understanding, NOAA agreed and stated that it will work with FWS to
                     determine whether modifications or additions are necessary. In response
                     to the recommendation that the services modify their databases or
                     develop new ones, NOAA agreed that improvements to the existing
                     databases would consolidate take information in a streamlined manner,
                     but it noted that such modifications are contingent on reprioritization of
                     existing or additional resources for such changes. NOAA also said that it
                     often faced significant challenges gathering information on some of the
                     largest sources of in-water takes, such as take from fisheries.

                     In response to the recommendation that the services more clearly explain
                     in biological opinions the rationale for their jeopardy determinations,
                     NOAA said that while it believes that its biological opinions meet all legal
                     standards of the Endangered Species Act and the Administrative
                     Procedure Act, it recognizes the benefit of ensuring that biological
                     opinions contain an explanation sufficient to ensure that the basis of the
                     opinion is understandable and transparent to members of the general
                     public who may not read the full administrative record that would be
                     provided to a court. NOAA also said that it will review its quality
                     assurance and training mechanisms to determine whether additional
                     actions are needed to improve the clarity of biological opinions. NOAA
                     suggested a rewording of the recommendation, and we have modified the
                     recommendation to clarify it. In response to our final recommendation—
                     that each service develop operational plans to help achieve the goals in
                     sea turtle recovery plans—NOAA stated that implementation of recovery
                     plans depends on availability of funds and that it would work internally, as
                     well as externally with FWS, to determine whether additional planning



                     Page 26                                       GAO-12-242 Endangered Sea Turtles
activities would enhance the recovery and conservation of listed sea
turtles.

In addition, NOAA included some general comments on the draft report.
In particular, NOAA stated that by not recognizing the lack of data and
information for many fundamental aspects of both sea turtle biology and
ecology, and the effects of human-caused activities on sea turtles, the
draft report was missing an important contextual element. NOAA stated
that these data gaps are important to consider when assessing the
performance of any recovery and conservation program. We
acknowledge that such data gaps exist, but we believe that in light of
these gaps, improved coordination, data collection, and planning are
especially important to assist the services with their sea turtle protection
efforts. NOAA also raised a concern about our finding that biological
opinions should provide more clarity for the general public, and NOAA
stated that all of its opinions provide an appropriate explanation for its
jeopardy or no jeopardy determination. NOAA also recommended that we
clarify that our report did not attempt to review the opinions as a court
would, with the benefit of an agency’s full administrative record. We did
not review the services’ biological opinions to assess the legal sufficiency
of the analyses or jeopardy determinations contained in the biological
opinions. Rather, we reviewed selected sea turtle biological opinions for
clarity and transparency, as called for in the services’ joint consultation
handbook. We added some additional language to the report to further
reinforce these points. Finally, NOAA stated that it disagrees that
compilation and analysis of anticipated and actual take are requirements
for consultation or gauging the adequacy of sea turtle protection and
recovery measures. Our report does not state that collection and analysis
of such data are or should be required. Instead our report explains that on
the basis of previous GAO work and according to some experts and
officials we spoke with, it is important for the services to gather
information on total take to help inform their sea turtle conservation
decisions. NOAA said it believed some confusion and inaccuracies
existed in the report’s background section and suggested some technical
changes. While we believe the information presented in this section of the
report is clear and accurate, we have considered NOAA’s comments and
have made changes as appropriate. NOAA also provided other technical
comments that we incorporated as appropriate.

In its written comments, reproduced in appendix III, Interior generally
concurred with our recommendations and also provided some general
comments. In particular, Interior said that the report did not adequately
acknowledge the difficulty of determining and analyzing take of sea


Page 27                                       GAO-12-242 Endangered Sea Turtles
turtles. We have added such a discussion to the report. Nevertheless,
while we acknowledge the difficulty of determining and analyzing actual
take data, we continue to believe that if the services do not track the
actual effects of the take they authorize, they will lack a useful tool for
helping ensure that their actions are protecting sea turtles. In addition,
Interior stated that the report appears to criticize FWS for describing
anticipated take of sea turtles in its section 7 consultations as beach miles
affected rather than the number of sea turtles or nests that would be
destroyed. Interior stated that the report fails to acknowledge that such
descriptions are used because of the difficulty in estimating actual
numbers of individuals or nests taken. We do not believe that our report
criticizes the use of habitat descriptions, such as beach miles, and in fact
the report includes information stating that their use is legally permissible.
We continue to believe, however, that the services should
comprehensively collect and analyze take data and that not reporting
these data in a consistent format complicates analysis. Interior also
provided technical comments that we incorporated as appropriate.


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 to the Secretaries of
Commerce and the Interior, the appropriate congressional committees,
and other interested parties. In addition, the report will be available at no
charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact
me at (202) 512-3841 or mittala@gao.gov. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. GAO staff who made key contributions to this report
are listed in appendix IV.




Anu K. Mittal
Director, Natural Resources and Environment




Page 28                                        GAO-12-242 Endangered Sea Turtles
Appendix I: Objectives, Scope, and
              Appendix I: Objectives, Scope, and
              Methodology



Methodology

              The objectives for this review were to examine the extent to which the
              National Marine Fisheries Service (NMFS) and the Fish and Wildlife
              Service (FWS) (1) coordinate their sea turtle protection activities,
              (2) collect and analyze data on anticipated and actual sea turtle take,
              (3) clearly explain in their biological opinions the rationales they use when
              determining whether a proposed action will jeopardize sea turtles, and
              (4) have developed operational plans to help realize the goals of recovery
              plans for sea turtle species.

              We addressed these objectives by taking a variety of steps. To gain a
              national perspective on the services’ (NMFS and FWS) sea turtle
              protection efforts, we reviewed relevant federal laws and regulations,
              such as the Endangered Species Act, as well as relevant agency
              documentation, such as the services’ joint guidance for the act’s section 7
              consultations. We reviewed studies and other documents on sea turtle
              protection issues, including peer-reviewed scientific journals, government-
              sponsored research, and reports from nongovernmental organizations.
              We also reviewed relevant prior GAO reports. In addition, we interviewed
              NMFS’s and FWS’s national sea turtle coordinators and officials with
              national sea turtle protection responsibilities. We also interviewed a range
              of experts and other individuals—including university researchers;
              representatives of nongovernmental organizations, such as Oceana; and
              representatives from regional fishery management councils 1—whom we
              identified as knowledgeable about national sea turtle protection efforts.
              We used the following categories to quantify responses of experts,
              officials, and other individuals knowledgeable about sea turtles: “some”
              refers to 2 to 5 respondents, “several” refers to 6 to 10 respondents, and
              “many” refers to 11 or more respondents. We obtained sea turtle
              information used in the sidebars from NMFS and FWS.

              To examine the services’ sea turtle protection efforts in greater depth, and
              to better understand any regional differences, we selected a
              nonprobability sample of four states—Florida, Hawaii, Massachusetts,
              and Texas. We selected these states primarily on the basis of the
              existence of sea turtle nesting populations in the state, federal fisheries




              1
               Regional fishery management councils are composed of federal and state fishery
              management officials as well as active participants in the fishery, among others, and are
              responsible for developing management plans for fisheries in federal waters.




              Page 29                                                GAO-12-242 Endangered Sea Turtles
Appendix I: Objectives, Scope, and
Methodology




offshore, 2 and a relatively high level of anticipated take associated with
commercial fishing operations. For our selected locations, we analyzed
documentation from and conducted interviews with a diverse range of
individuals involved in sea turtle protection, including the services’
regional and field office officials; other federal and state agency officials;
and experts from industry, such as the Southern Shrimp Alliance, and
from environmental groups, such as the Sea Turtle Conservancy.

In addition to the steps outlined above, which were common to all the
objectives, we also took other steps specific to a particular objective. To
determine the extent to which the services coordinate their sea turtle
protection activities, we reviewed the memorandum of understanding
between NMFS and FWS concerning their sea turtle protection activities.
To assess the extent to which the services collect and analyze data on
anticipated and actual sea turtle take, we reviewed information about the
following databases: NMFS’s Public Consultation Tracking System,
NMFS’s Authorizations and Permits for Protected Species, FWS’s
Tracking and Integrated Logging System, and FWS’s Service Permit
Issuance and Tracking System.

To determine the extent to which the services clearly explain in their
biological opinions the rationale they use when making decisions about
how much sea turtle take is anticipated to result from reviewed actions,
we analyzed NMFS and FWS biological opinions for anticipated sea turtle
take under section 7 of the act. NMFS’s Public Consultation Tracking
System and FWS’s Tracking and Integrated Logging System databases
contain a record of section 7 formal consultations for which biological
opinions have been prepared. To assess the reliability of these
databases, we conducted electronic testing for missing data and obvious
errors and interviewed relevant officials. We found the data from the
databases to be sufficiently reliable for the purpose of identifying the
universe of biological opinions prepared by NMFS and FWS. Specifically,
we reviewed all 22 of the biological opinions issued from January 1, 2006,
to January 1, 2011, by NMFS for federal fisheries. Using data from the
Tracking and Integrated Logging System database, we determined that
FWS conducted 119 formal section 7 consultations within our time frame


2
 The term “fishery” means one or more stocks of fish which can be treated as a unit for
purposes of conservation and management and which are identified on the basis of
geographical, scientific, technical, recreational, and economic characteristics. We use the
term “federal fishery” to mean a fishery managed by the regional councils and NMFS.




Page 30                                                GAO-12-242 Endangered Sea Turtles
Appendix I: Objectives, Scope, and
Methodology




that anticipated sea turtle take. We selected a random sample of 30,
which allowed us to review a wide range of biological opinions but does
not allow us to generalize to the entire population of 119 opinions.
Subsequently, 9 FWS opinions from the random sample of 30 were
determined to be outside the scope of our review and were not included
in the analysis for the following reasons: (1) FWS incorrectly categorized
the consultation as a formal consultation when it was an informal
consultation, (2) the biological opinion is still in draft form, and (3) the
biological opinion did not involve anticipated take of sea turtles.

We reviewed each biological opinion to determine whether the services
clearly and transparently explained the rationale for the jeopardy
determination. We considered a biological opinion to be clear and
transparent if we determined that there was a direct link to or explanation
of (1) how information included in the opinion, such as nesting trends or
population data, was factored into the jeopardy determination or (2) how
all other sources of take were factored into the jeopardy determination.
One analyst conducted the initial review. Particular emphasis was placed
on the review of the following sections in the opinions (although names
used vary between the services): “Status of the Species,” “Environmental
Baseline,” “Effects of the Action,” and “Jeopardy
Determination/Conclusion.” After the initial review, a second GAO analyst
then reviewed those biological opinions that one analyst determined were
not clear and transparent to verify that we had correctly categorized the
opinions and to identify any conflicting findings, which were discussed
and resolved between the two analysts.

To evaluate the extent to which NMFS and FWS have developed
operational plans to help achieve the goals of recovery plans for sea
turtles, we reviewed all the sea turtle recovery plans and other related
plans developed by the services to guide their sea turtle protection
activities. Specifically, we reviewed all 11 sea turtle recovery plans and
2 regional sea turtle plans to determine the extent to which they contained
elements of effective planning as contained in GAO guidance on the
Government Performance and Results Act. 3 One analyst conducted the
initial review. Particular emphasis was placed on review of the “Recovery
Narrative” and “Implementation Schedule” sections of the recovery plans.



3
 GAO, Agencies’ Strategic Plans under GPRA: Key Questions to Facilitate Congressional
Review, GAO/GGD-10.1.16 (Washington, D.C.: May 1997).




Page 31                                            GAO-12-242 Endangered Sea Turtles
Appendix I: Objectives, Scope, and
Methodology




After the initial review, a second GAO analyst then reviewed each plan to
verify that it had been characterized correctly or to identify any conflicting
findings, which were discussed and resolved between the two reviewers.

We conducted this performance audit from February 2011 to January
2012, in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.




Page 32                                        GAO-12-242 Endangered Sea Turtles
Appendix II: Comments from the Department
             Appendix II: Comments from the Department
             of Commerce



of Commerce




             Page 33                                     GAO-12-242 Endangered Sea Turtles
Appendix II: Comments from the Department
of Commerce




Page 34                                     GAO-12-242 Endangered Sea Turtles
Appendix II: Comments from the Department
of Commerce




Page 35                                     GAO-12-242 Endangered Sea Turtles
Appendix II: Comments from the Department
of Commerce




Page 36                                     GAO-12-242 Endangered Sea Turtles
Appendix II: Comments from the Department
of Commerce




Page 37                                     GAO-12-242 Endangered Sea Turtles
Appendix III: Comments from the
              Appendix III: Comments from the Department
              of the Interior



Department of the Interior




              Page 38                                      GAO-12-242 Endangered Sea Turtles
Appendix III: Comments from the Department
of the Interior




Page 39                                      GAO-12-242 Endangered Sea Turtles
Appendix IV: GAO Contact and Staff
                  Appendix IV: GAO Contact and Staff
                  Acknowledgments



Acknowledgments

                  Anu K. Mittal, (202) 512-3841 or mittala@gao.gov
GAO Contact
                  In addition to the contact named above, Stephen D. Secrist (Assistant
Staff             Director), Jenna Beveridge, Antoinette Capaccio, Ellen W. Chu, Justin
Acknowledgments   Fisher, Griffin Glatt, Marietta Revesz, Rebecca Shea, and Lisa Vojta
                  made key contributions to this report.




(361266)
                  Page 40                                     GAO-12-242 Endangered Sea Turtles
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