oversight

Views on Fish and Wildlife Service's Biological Opinion Addressing Mt. Graham Astrophysical Facility

Published by the Government Accountability Office on 1990-06-26.

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

.
                     United states General
                     Testimony
                                             Accotuuing   OfIke
                                                                              tUlL7/
                                                                         /Y /6 71

+   GAO

    ~.~          ~
     For Release      Views on Fish md Wildlife     Service's
     on Delivery      Biologicai  Opinion AdOressing
     Expected at
     9:30 a.m. EDT    Mt. Graham Astrophysical   Facility
     Tuesday
     June 26, 1990


                      Statement    of
                      James l3uf fus III,      Director
                      Natural    Resources Management Issues
                      Resources,    Community, and Economic
                      Development     Division
                      Before the
                      Subcommittee    on National    Parks and
                      Public   Lands
                      Committee on Interior       and Insular  Affairs
                      and the
                      Subcommittee    on Fisheries    and
                      Wildlife    Conservation    and the
                      Environment
                      Committee on Merchant Marine
                      and Fisheries
                      House of Representatives
Dear Messrs.      Chairmen      and Members of the         Subcommittees:

        I am pleased    to appear before you today to discuss                      our
findiqs     concerning     the biological         opinion    rendered        by the
Department     of the Interior's          Fish and Wildlife          Service      (FWS) on the
Mt.   Graham astrophysical        project.        Such opinions         are required       by
the Endangered Species Act when federal                   agencies      propose actions
that might jeopardize         endangered       species.      This opinion          found that
the University      of Arizona      could locate        three telescopes           on Mt.
Graham's Emerald Peak without              jeopardizing       the continued         existence
of the Mt. Graham red squirrel,               a federally       listed     endangered
species,    if terms of a '*reasonable            and prudent        alternative"       offered
by the FW were met.           With this biological            opinion      in hand, the
Congress enacted the Arizona-Idaho                Conservation         Act of 1988, which
mandated federal       agency approval         of the project's           construction       in
accordance     with the terms of the I'WS alternative.

       My remarks today are based on work we performed                at the request
of Senatcrs       Dennis DeConcini     and John McCain.        They asked us to
determine      (1) whether     the FWS biological     opinion,     in particular
the Emerald Peak development           alternative,    was prepared      inconsistent
with both the Endangered          Species Act, as amended, and FWS'
implementing       regulations    and (2) if so, whether the conclusions
set forth     in the opinion      were affected     by any   of the
inconsistencies        we observed.

        In responding      to these questions,      I believe    it would be useful
to state    at the outset         that passage of the Arizona-Idaho
Conservation      Act of 1988 moots the question           concerning   whether the
biological     opinion    met Endangered Species Act and related
regulatory     standards       because it declared     those standards    to be
satisfied.      However,       absent the 1988 act and based on the
information     available       to us, we believe    that the government      would
have had difficulty          in demonstrating     to a court that the Emerald
Peak development       alternative      was prepared     in accordance   with                     1
Endangered Species         Act  requirements        for two principal            reasons.
Fi;st,     the alternative      is not supported          by prior      biological
studies      of ht. Graham-       These studies        indicated      that any
development       on Emerald Peak posed an unacceptable                   risk to the red
squirrel's       survival.     Second, the FWS Regional              Director       who
mandated inclusion         of the alternative          in the opinion          informed us
that he had no additional            biological       studies     to clearly        support the
Emerald Peak development           alternative        and made his decision,             in
part,     on the basis of nonbiological             considerations.            These
concerns,      together    with recent evidence           indicating        that the Mt.
Graham red squirrel's          prospects        have worsened since the FWS opinion
was issued,       lead us to believe           that an updated biological             opinion
is warranted.

BACKGROCNCON THE MT. GRAHAM
BIOLOGICAL OPINION

       The FWS biological            opinion      addressing   the Mt. Graham red
squirrel     arose from an application                by the University        of Arizona to
the Forest Service            for a permit        to build   a 7-telescope
astrophysical       facility        atop Mt. Graham's Emerald and High Peaks.
While deemed by the university                  to be an ideal locatian           for an
astrophysical       facility,        the two peaks are situated             in the only
known habitat       of the Mt. Graham red squirrel,                  a federally      listed
endangfred      species.         The facility       is proposed to be located in the
          ..
2,000 acres that constitutes                 the squirrel's      critical      habitat-l
The Endangered Species Act required                    the FWS to render         a biological
opinion    on whether         the facility        would likely     "jeopardize




IThe Endangered       Species Act defines     **critical    habitat"     as the
specific    areas within      the geographic    area occupied        by a species at
the time it is listed         as endangered   that have those physical          or
biological     features    essential   to conserve the species          and that may
require    special    management consideration        or protection.
                                              2
the continued   existence"2 of the                 species   or result        in the
destruction   or adverse modification                  of its critical          habitat.

          The F'WS July 1988 biological                opinion     concluded       that the
destruction        of    habitat      and the increased          human presence necessary
to place an astrophysical                 facility      on both peaks would jeopardize
the red squirrel's             continued       existence.        When rendering           such an
opinion,      the Endanqered Species Act requires                       the FWS, where
possible,       to suggest        "reasonable         and prudent       alternatives"         to the
proposed action           that can be taken to avoid the likelihood                         of
jeopardizing          the species'        continued       existence.         FWS biologists
initially       proposed       two such alternatives:                (1) relocating         the
facility      outside       the Mt. Graham area and (2) locating                      the facility
on the more degraded High Peak.                       The FWS Regional          Director
subsequently          mandated inclusion            of a third       alternative        that located
three telescopes,             requiring      8.6 acres,        on Emerald Peak and
deferring       consideration           of the remaining         telescopes.          This third
alternative        ultimately         provided      the basis for the Congress'
decision      to approve the project.

        The third      alternative    required    a number of actions            to
mitigate     the loss of red squirrel          habitat      resulting      from the
project's      construction,       These actions       centered       on restoring
damaged habitat          in the High Peak area by closing              and reforesting
roads and closing           the Emerald Peak area to recreation               and other
uses. 'The Ariz<.          ,-Idaho Conservation      Act required        the Forest
Service    to approve the facility's           construction         on Emerald Peak in
accordance      with the conditions         set forth     in the FWS Emerald Peak
development       alternative.




2This is defined         in the FWS regulations      as an action   that
reasonably  will        be expected     to reduce appreciably    the likelihood                    of
both the survival          and recovery    of an endangered   species    in the                 wild.
                                             3
    SOUNDNESS OF THE -r-D    PW
PEVETOPMENT AU,KBNATIVE IS QUESTZSNA%,E

         The Endangered Species Act and FWS regulations                          require     FWS to
"use the best scientific                and commercial          data available"        in
rendering      a biological          opinion.       Our    work    has  shown    that    a
considerable        amount of biological              information       available      at the time
the FWS rendered          its opinion         indicated       that constructing          the
facility      on Emerald Peak would further                   jeopardize      the squirrelts
survival.        Although      the FWS Regional            Director     considered       the
available      information         in reaching        his decision,        he ultimately
weighed an increased             risk to the species             with his perception          of the
facilities*       significance,          among other things,            and decided to
 include    the third       alternative         allowing      construction       of three
telescopes       on Emerald Peak.

Federal  and State Renorts
Had Raised Riolosical   Concerns

        Prior   to the FWS biological        opinion,         several     federal    and state
reports      had concluded     that constructing          the facility        on Emerald
Peak presented       an unacceptable      risk     to the red squirrel's
survival.       For example,      a 1985 Arizona        Game and Fish Department
study of the Mt. Graham red squirrel                 conducted        for the FWS
recommended that no habitat-altering                 activities         be allowed     in the
upper elevatiol.;       of Mt.      .iham where the facility              is planned.       The
study viewed the removal of the forest                  stands upon which the
squirrel      depends as the greatest         threat      to the species'         existence.

       Similarly,      an August 1987 FWS evaluation         of astrophysical
developments       in the Mt. Graham area noted that "given the
[squirrel's]       current  severely   endangered    status,    the loss of even a
few acres could be critical          to the survival      and recovery     of this
species."        Regarding  Emerald Peak, the evaluation          stated that no


                                                4
alternative       could     be developed       that    would     remove the     jeopardy    to
the species.

        A February        1988 biological          assessment       of the impact of
astrophysical          development         on Mt. Graham conducted by the Forest
Service      also raised         serious      concerns     about the effect          of
development        on the red squirrel's               survival.       It concluded       that any
change to the amount of habitat                    was significant          because the number
of squirrels         was so small and because the "threshold                        of
extinction,"         that    is,    the    minimum     number    of   squirrels      needed to
survive,       was not known.            It further       concluded,      "Since the
population        size and the total             habitat     available      are   so small,    the
margins of safety            are also small.             The impcrtance         of each acre of
habitat      lost    increases        as the population          approaches       this threshold.
At   the threshold,          one or two animals            or small      amounts of acreage
can make a difference."

         The FWS draft     designation        of critical        habitat3     for the Mt.
Graham red squirrel,           prepared      prior    to the biological           opinion,      also
stressed     the extreme importance             of Mt. Graham's spruce and fir
forest.      It stated     that the proposed            astrophysical       facility       on   Mt.
Graham could be a factor            that would adversely             affect     the
squirrel's      chances of survival           because it lies in the heart of                   the
species'     best habitat.         The University          of Arizona had requested               the
FWS to except the facility              site    from the area to be designated                  as
critical     habitat;    hgwev-',       FWS conz'.uded        in its final        designation
of critical      habitat     that such an exception              would render the
squirrel     population     more vulnerable.             Moreover,      FWS stated       that
because of the squirrel's             low population          level,    no reduced
protection      of important       habitats       could be supported          biologically.

        Finally,  the July 1988 biological  opinion states that the
project     on Emerald Peak would make about 47 acres permanently

3FWS officially           designated    critical       habitat     on January     5,   1990.
                                                   5
unsuitable         for squirrel     habitat    because opening the tree           canopy
exposes      many adjoining        acres    to heat and drying,   thereby         destroying
food      supplies     the squirrel      needs to survive    the winter.

                               n Rased on
gther      Than Biolouical     InformatlQn

       According  to the FWS Regional      Director,     while he was avare of
the information     contained  in the available       federal  and state
reports,    he was not convinced    by it.     He told us that he could not
conclude    that a small habitat    loss such as that associated         with the
Emerald Peak alternative      would appreciably       reduce the chances of
the squirrel's    survival.

         The FWS Regional          Director    also said that he considered
several       other factors        in reaching      his decision.         These included      (1)
the need to make an expeditious                  decision,      (2) the university's
vigorous       insistence       on the Emerald Peak area as the only viable
site      for the facility,          (3) his belief       that the university         would
probably       win in a court of law, and (4) his perception                      that one of
the telescopes            represents     a world-class       scientific      development.      He
continued        that he would not have authorized                 development      on Emerald
Peak if the proposal             was to build       housing or to use the area for
some other ordinary             use.     However, weighing         his perception      of the
facility's         significance       against    the potential         for increased    risk to
the species,          he was willing        to pe-mit     the f‘ :ility      to be
constructed          on Emerald Peak.         He said the challenge            of the
Endangered Species Act is to devise compromises that accommodate
both needed projects              and endangered       species.

        We have several    concerns     about the FWS Regional      Director's
decision.      First,   the alternative      of locating   three telescopes       on
Emerald Peak was not supported           by the FWS biologists              preparing
                                                                                  the
biological     opinion.    According     to the FWS Regional     Director      and FWS
biologists,     as well as Forest       Service   and university    officials,      the
                                              6
alternative         resulted    from a meeting between the Regional                  Director,
Regional       Forester,     and university         officials     wherein the university
officials        rejected    the alternatives           of locating    the facility        either
outside      the Rt. Graham area or on High Peak.                    The FWS biologists
informed       us that they disagreed            with the Regional        Director's
decision       to add the third        alternative         and did so only at his
specific       direction.4        They have since stated to us that,                 in their
opinion,       constructing       the facility        on Emerald Peak is not
biologically         supportable      and will      likely    increase    the threat       to the
squirrel,        a species on the brink           of extinction.

        Second, the FWS Regional                 Director     informed us that he had no
additional        biological         studies     to clearly      support the Emerald Peak
development         alternative.            Since this     alternative   was inconsistent
with his own field              biologists'        views and with the conclusions         of
prior    biological          studies,       we believe     it would have been prudent        to
develop      this support.

         Lastly,    we do not believe       that it is appropriate          for an FWS
official       to consider   nonbiological        information      in reaching     an
opinion      that could jeopardize         a species'      existence.     In a report
issued 11 years ago on management improvements                     needed to the FWS
endangered       species program,       we stated      that the program manager
considered        it his responsibility        to decide which species         to save
and which ones to render extinct.5                  Last year we reported        that

*The FWS biologists           initially      made their    views publicly        known in
depositions        taken in conjunction          with a recent court action             brought
by the Sierra         Club Legal Defense Fund (Mt. Graham Red Squirrel,                       et.
al.,    Plantiffs/AppPllees             vs. Clayton   Yeutter,      et. al.,    Defendants,
and State of Arizona            Board of Regents,        University       of Arizona,
Defendant-Intervener/Appellant),                   In our opinion,        the statements
made in these depositions                were not sufficiently         clear  for us to
determine       their   precise       views.    Consequently,      we conducted       lengthy
interviews        with the biologists.           The statements        we make in this
testimony       are based on these interviews.
55                                                                                   ion
(CED-79-65,      July    2,   1979).
                                               7
nonbiological       considerations        led another FWS official             to deny
listing     of a species      as endangered.d          We believe      now as ve did then
that biological        decisions      should be based on biological
information.        Weighing      the risk     of a species'      extinction       vith the
benefits      of a project      is a policy      decision     and should be left        to a
high-level      Endangered Species          Committee'     to which the act assigns
responsibility        for granting      exemptions       to the act's       protective
provisions.       The act also establishes             a process for federal
agencies      or project     applicants      to initiate      exemption      reviews by the
committee.

         Alternatively,           the Congress,       through     legislation,        can exempt a
project       from the protective            provisions      of the Endangered Species
Act.       In passing         the act authorizing         construction         of the
astrophysical           facility      on Emerald Peak, however, the Congress
concluded        that the Endangered Species Act’s                   requirements        had been
satisfied        for three telescopes            and that no exemption             was necessary.
It did so largely               on the basis of the FWS biological                 opinion    that
was based, in part,               on the Regional        Director's       perception      that the
facility's         benefits       outweighed     the increased        risk to the endangered
Mt. Graham red squirrel.


RED SQUIRREL'S STATUS Ha
BECOME MORE PRECARIOUS

        Since the biological   opinion   was rendered and .ne act
directing     approval  of the facility   on Emerald Peak was passed, the
status     of the Mt. Graham red squirrel    has become more precarious.

                                            . .
6Endansered   Soecies:   Sootted  Owl Petltl on Evaluation                     Beset    bv
Problems   (GAO/RCED-89-79,   Feb. 21, 1989).
'Members are the Secretaries         of the Interior,     the Army, and
Agriculture;     the Chairman of the Council of Economic Advisers;                           the
Administrators      of  the Environmental      Protection   Agency and the
National     Oceanic and Atmospheric      Administration;     and a
representative      from the affected     state.

                                               8
Available    data suggest      that squirrel       numbers have dropped from
about 215 in 1988 to between 132 and 146 in May 1990.                  Although the
exact cause of the population             decline    is not known with certainty,
biologists     we talked    with generally        agree that the reduction       in
available    food sources,       particularly      spruce and fir tree cones, is
a major contributing        factor.       They contend that removing trees that
produce these cones in order to build the astrophysical                 facility    is
not biologically       sound.

         Moreover,      the 1988 act authorizing        construction       of the
facility       delayed by at least       a decade one of the long-term             actions
intended       to mitigate     the loss of red squirrel         habitat.      This
mitigation        measure would have involved         the closure        of 14 summer
residences        and a church camp in the squirrel's             habitat    outside     the
astrophysical         area.    The biologists     believe    that removing this
human presence          and reclaiming     the area may enhance the squirrel's
ability      to intermingle       and seek food.      However, the 1988 act
required       that the existing       summer residences       and church camp remain
open for at least           10 years while additional        data are collected          on
their     impact on the red squirrel.

        FWS, Forest Service,           and state government biologists              pointed
out that the other          major mitigating       action required          by the
biological      opinion,      that is closing      and reforesting          roads in the
High Peak area, also exchanges possible                  long-term       improvements       for
an immediate       loss of a portion         of the species'       critical      habi.at.
These biologists         stated    that because reforestation             of the mature
spruce and fir        stands that constitute         the red squirrel's            critical
habitat    will    take between 150 and 400 years, the squirrel                     may not
survive    the immediate         deprivation    of habitat      to benefit       from the
long-term      growtn that znay ultimately          occur.
      In conclusion,      we believe    that the soundness of the Emerald
Peak development     alternative     is questionable.      That the squirrel's
prospects   have worsened since the opinion           was rendered and the act
was passed is another        factor  raising   questions   about the soundness
of the alternative.

        Prom our vantage point,              we believe    that the Congress faces a
policy      decision.       It can allow construction            of the facility     on
Emerald Peak to continue              as planned.       Alternatively,     it can
consider      mandating       the FWS to update its biological           opinion     in
light    of the designation           of the squirrel's        critical  habitat,      the
significant        decline      in the population,       and our concerns about the
process used to arrive             at th e July 1988 biological         opinion.      This
may require        additional      legislation      to hold construction         in abeyance
until    a new biological          opinion     is render&.

      Messrs. Chairmen, this concludes               my prepared  remarks, I will
be pleased to respond to any questions                you or other members of the
Subccmmittees  may have at this  time.




                                            10