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                                        United States

                                        Washington, D.C. 20548          Property  of CSc  Library

                                        Resources, Community, and
                                        Economic Development Division

                                        B-247615

                                        May 8, 1992

                                        The Honorable George E. Brown,gir.S. DEPARTMENT 0F  COMMERCE NOAt
                                        Chairman, Committee on ScienceCO A ST A L SERVICES CEN I E R
                                          Space, and Technology         2234 SOUTH HOBSON AVENUE
                                        House of Representatives        CHARLESTON, SC  29405-2413

                                        Dear Mr. Chairman:

                                        Your Committee requested that we examine certain aspects of the
                                        implementation of the Endangered Species Act of 1973 (ESA). First, your
                                        Committee asked that we report information on decisions made between
                                        fiscal years 1974 and 1991 by the two federal agencies primarily
                                        responsible for implementing the ESA-the Fish and Wildlife Service (FWS)
                                        in the Department of the Interior and the National Marine Fisheries
                                        Service (NMFS) in the Department of Commerce. Second, we were asked to
                                        examine and report on FWS and NMFS processes leading to ESA listing
                                        decisions and determine the extent to which such decisions are based
                                        solely on the best available scientific and commercial information. This
                                        work is currently under way.

                                        On February 12, 1992, we briefed members of your staff on the results of
                                        our initial work. This briefing report summarizes the information we
                                        presented and focuses on describing and analyzing the major processes
                                        for affording species protection under the ESA and on highlighting the level
                                        of activity and timeliness of the major processes. Our key observations
                                        follow:

                                        The ESA establishes five major processes for protecting plants and animals.
                                        FWS/NMFS (1) review petitions for species protection submitted by the
                                        public, (2) determine whether species should be placed on their list of
                                        species that are facing possible extinction and whether habitat critical to
                                        the species' protection should be designated, (3) consult with federal
                                        agencies proposing activities that may affect listed species, (4) develop
                                        plans to aid in the recovery of listed species, and (5) review conservation
       g.--                             plans and associated applications from private individuals permitting them
       co                              to proceed with activities that may incidentally harm listed species. (See
                                        sec. 3.)
       "-4    =,                     ï¿½* ESA criteria specify required time frames and factors that FWS/NMFS must
                                        consider when making decisions related to these processes. They also
    r   (                               delineate the processes during which economic factors may be considered
     at                                 in reaching decisions. The listing and consultation processes must be


Lc\t
sLL-  I                                 Page 1                              GAO/RCED-92-131BR Endangered Species Act
~4L_ t~





  B-247615








  based solely on the best scientific and commercial data available. Other
  decisions, such as the designation of critical habitat and the granting of
  exemptions from the EsA, may take into account economic and other
  nonbiological factors. (See see. 1.)
 ï¿½The agencies have designated habitat critical to the protection of less than
  20 percent of the species that have been listed. According to agency
  officials, Uhs is primarily due to their belief that designating critical habitat
  does not provide much additional benefit for a species and that, when
  compared with other EsA requirements, critical habitat designation is
  considered a low priority. (See see. 4.)
* Over 90 percent of the times during fiscal years 1987 through 1991 that
  other federal agencies asked F~ws or NmF's to consider the effect of
  proposed actions (such as construction) on a listed species, the agencies'
  biological opinions found no jeopardy to the species, thus enabling the
  projects to proceed as planned. In the remaining cases, almost 90 percent
  of the agencies' opinions offered alternative actions that would mitigate
  the threat to the species and allow the projects to go forward. (See see. 4.)
* The agencies have made slow progress but are paying greater attention to
  developing mandated plans to guide the recovery of listed species;
  currently, over 60 percent of all listed species have approved recovery
  plans. (See see. 4.)
* While more than 650 domestic species are on the endangered species list,
  600 others (known as candidate species) are recognized by the agencies as
  being vulnerable enough to support proposals that would list them as
  endangered or threatened. At the present pace of listing activity, it will
  take Fws until 2006 to list these species as endangered or threatened, even
  if no additional species are determined to be in need of protection. On the
  basis of data available to Fws, an additional 3,000 candidate species may be
  threatened or endangered. The agencies attribute their slow listing
  progress to resource constraints. (See sec. 4.)


  In conducting our review, we examidned the EsA and agency implementing
  regulations so that we could prepare comprehensive flowcharts of the
  EsA's processes. To quantify the level of Fws and NmFs activity in
  implementing those processes, we initially reviewed existing centralized
  agency data bases maintained at the agencies' headquarters offices. We
  also visited each F~ws and NMFs regional office and administered
  questionnaires to these offices to obtain additional information. As agreed
  with your office, we did not collect information on the agencies' activities
  with respect to species outside of the United States. (See see. 2.)




  Page 2                              GAO/RCED-92-131BR Endangered Species Act






B-247615









We discussed the information in this briefing report with the Deputy
Assistant Director for Fish and Wildlife Enhancement, Fws, and the Deputy
Assistant Administrator for Fisheries, NMFS, who generally agreed with the
facts as presented. As you requested, we did not obtain written comments
from the Departments of Commerce and the Interior on a draft of this
briefing report.

As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this briefing report until 30 days
from the date of this letter. At that time, we will send copies to the
Secretaries of Commerce and the Interior. We will make copies available
to others upon request. Please contact me on (202) 275-7756 if you or your
staff have any questions. Other major contributors to this briefing report
are listed in appendix I.

Sincerely yours,




    es Duffus III
Director, Natural Resources
  Management Issues

























Page 3                                GAOfRCED-92-131BR Endangered Species Act






Contents






Letter I

Section 1                                                                                                          8
Background

Section 2                                                                                                         10
                                   Objectives                                                                 10
Objectives, Scope,                     Scope and Methodology                                                      10
and Methodology

Section 3                                                                                                         11
                                   The Petition Process                                                       11
ESA  Processes and                     The Listing and Critical Habitat Designation Processes                     13
Agency                                 The Consultation Process                                                   14
Decision-Making The Recovery Process                                                                              17
                                    The Habitat Conservation Planning Process and Incidental                   17
Requirements                              Take Permits

Section 4                                                                                                         19
Overview of FWS and Highlights 19
                                    Data on Extent and Timeliness of Petition Activity                        20
NMFS  Actions to                       Data on Extent and Timeliness of Listing and Critical                      24
Implement ESA                             Habitat Designation Activity
                                    Data on Consultation Activity                                             30
Requirements                           Data on Extent and Timeliness of Recovery Plan                             33
Through Fiscal Year                       Development Activity
1991                                   Data on Incidental Take Permits                                            36
                                    Use of Exemption Process                                                  37
                                    Number of Species Taken Off Endangered Species List                       38
                                    Backlog of Species Meriting Protection                                    39

Appendix I                                                                                                        40
Major Contributors to
This Briefing Report
Tables                                 Table 4.1: FWS Use of the Warranted but Precluded                          23
                                      Category, Through Fiscal Year 1991




                                    Page 4                                GAO/RCED-92-131BR Endangered Species Act






                                     Contents








                                     Table 4.2: Species Listed by FWS for 3 or More Years With             35
                                       Approved Recovery Plans, Through Fiscal Year 1991
                                     Table 4.3: Species Listed by FWS for 3 or More Years                  36
                                       Without Approved Recovery Plans, Through Fiscal Year
                                       1991
                                     Table 4.4: Species Delisted, Through Fiscal Year 1991                 38

Figures                              Figure 3.1: The Petition Process                                       12
                                     Figure 3.2: The Listing and Critical Habitat Designation              14
                                       Process
                                     Figure 3.3: The Consultation Process                                  16
                                     Figure 4.1: Number of Listing Petitions Received Annually             20
                                       by FWS/NMFS, Through Fiscal Year 1991
                                     Figure 4.2: Results of FWS/NMFS 90-Day Findings, Through              21
                                       Fiscal Year 1991
                                     Figure 4.3: Results of FWS/NMFS 12-Month Findings,                    22
                                       Through Fiscal Year 1991
                                     Figure 4.4: Annual Number of Species Listed by                        25
                                       FWS/NMFS, Through Fiscal Year 1991
                                     Figure 4.5: Breakdown of Listed Species by Biological                 26
                                       Classification
                                     Figure 4.6: Number of Listed Species in Each FWS Region,              27
                                       Through Fiscal Year 1991
                                     Figure 4.7: NMFS Regional Office Boundaries                           28
                                     Figure 4.8: Number of Species With Critical Habitat                   29
                                       Designation, Through Fiscal Year 1991
                                     Figure 4.9: Number of Informal and Formal Consultations,              30
                                       Fiscal Years 1987 Through 1991
                                     Figure 4.10: Results of FWS/NMFS Biological Opinions,                 31
                                       Fiscal Years 1987 Through 1991
                                     Figure 4.11: Number of Jeopardy Opinions With Reasonable              32
                                       and Prudent Alternatives, Fiscal Years 1987 Through 1991
                                     Figure 4.12: Status of FWS/NMFS Recovery Plan                         33
                                       Development Efforts, Through Fiscal Year 1991
                                     Figure 4.13: FWS Recovery Plan Development Efforts,                   34
                                       Through Fiscal Year 1991
                                     Figure 4.14: NMFS Recovery Plan Development Efforts,                  35
                                       Through Fiscal Year 1991
                                     Figure 4.15: Number of Incidental Take Permits Issued by              37
                                       FWS, Through Fiscal Year 1991





                                    Page 6                              GAO/RCED-92-131BR Endangered Species Act






Contents




















































Abbreviations

ESA        Endangered Species Act
FWS       U.S. Fish and Wildlife Service
GAO        General Accounting Office
NMFS       National Marine Fisheries Service


Page 6                               GAO/RCED-92-131BR Endangered Species Act



















































































Page 7                                  GAO/RCED-92-131BR Endangered Species Act




Section 1

Background







                                    ï¿½ The Congress enacted the Endangered Species Act (EsA) in 1973 to protect
                                      plant and animal species whose survival was in jeopardy. The ESA's
                                       ultimate goal is to restore species so that they can live in self-sustaining
                                      populations without the act's protection.
                                    * Any person or organization may petition the Fish and Wildlife Service/ the
                                       National Marine Fisheries Service (FWS/NMFS) to add a species to the
                                       endangered species list.
                                    ï¿½ Species are listed under the ESA as threatened or endangered, depending
                                       on their risk of extinction. An endangered species is any species at risk of
                                       extinction in all or a significant portion of its range, whereas a threatened
                                       species is one that is likely to become endangered in the foreseeable
                                       future in all or a significant portion of its range. In practical terms, the ESA
                                       affords essentially the same level of protection to threatened and
                                       endangered species.
                                    ï¿½ Any one or combination of the following conditions indicates that a
                                       species should be listed as endangered or threatened: destruction or
                                       modification of habitat; exploitation for commercial, scientific,
                                       educational, or recreational purposes; disease or predation; inadequate
                                       regulatory protection for the species; or other man-made or natural factors
                                       affecting the species' continued existence.
                                    ï¿½ The ESA also provides for the protection of geographical areas that are
                                       essential to the conservation of listed species. Such areas are termed
                                       "critical habitat" under the act.
                                    ï¿½ The listing of a species limits activities that could harm the species or its
                                       habitat. Specifically, section 9 of the ESA prohibits the "taking" of listed
                                       species. "Taking" or "take" means to harm, harass, pursue, hunt, shoot,
                                       wound, kill, trap, capture, or collect.
                                    ï¿½ Once a species is listed, the ESA requires that all federal agencies must
                                       consult with FWS/NMFS if the agencies' proposed projects are likely to harm
                                       listed species or adversely modify their critical habitat.
                                    ï¿½ In addition, the act requires that FWS/NMFs develop and implement a
                                       recovery plan to reverse the decline of each listed species and ensure its
                                       long-term survival, unless such a plan would not benefit the species.
                                    ï¿½ The Congress recognized that the ESA, as originally passed, could lead to
                                       conflicts between development and listed species. Thus, it amended the
                                       ESA in 1978 and 1982 by adding the following mechanisms that balance
                                       species' protection with the need for economic progress:
                                       ï¿½ Federal agencies whose actions would likely jeopardize listed species
                                         may receive exemptions from the ESA's requirements if a cabinet-level
                                         Endangered Species Committee determines that the benefits of the
                                         proposed federal actions clearly outweigh the benefits of preserving the
                                         species.



                                       Page 8                               GAO/RCED-92-131BR Endangered Species Act






  Section 1
  Background








  * The agencies responsible for implementing the ESA are required to
    consider the economic impacts of designating areas as critical habitat.
  * The implementing agencies may issue permits to private parties whose
    development projects could lead to the incidental taking of listed
    species. The ESA and its implementing regulations define "incidental
    take" as takings resulting from, but not the purpose of, an otherwise
    lawful activity.
* Two agencies have primary responsibility for implementing the act's
  provisions: Fws is responsible for protecting freshwater and land species,
  and NMFS is responsible for protecting most marine species. Each agency
  implements the ESA through a system of regional offices.
_ The ESA's budgets for the two agencies have increased in recent years. For
  example, FWS' budget has increased from $18.8 million in fiscal year 1988
  to $42.3 million for fiscal year 1992. NMFS reported that its ESA budget has
  increased from $3.7 million to $8.2 million during the same period.
* The ESA is currently authorized through fiscal year 1992. Increasing
  national attention has been focused on the ESA as reauthorization
  approaches.






























  Page 9                              GAO/RCED-92-131BR Endangered Species Act




Section 2

Objectives, Scope, and Methodology







Objectives                         * This report summarizes information presented to staff of the
                                     Subcommittee on Environment, House Committee on Science, Space, and
                                     Technology, describing and analyzing the major processes for protecting
                                     domestic species, as well as highlighting the level of activity and timeliness
                                     of the major processes. As agreed, we plan to prepare a subsequent report
                                     that will examine FwS/NMFS processes used to reach ESA listing decisions
                                     and determine the extent that such decisions are based solely on the best
                                     available scientific and commercial information.


Scope                 and We reviewed the ESA's and FWS'/NMFS' implementing regulations and related
                                     internal policies.
Methodology                         . We identified, gathered, and analyzed data related to the actions taken
                                     under each of the act's five major processes: the petition process, the
                                     listing and critical habitat designation process, the consultation process,
                                     the recovery process, and the habitat conservation planning process. As
                                     agreed, we did not collect information on the agencies' activities with
                                     respect to species outside of the United States.
                                     In assembling these data, we did the following:
                                     * We obtained FWS/NMFS headquarters data bases on the numbers of
                                       petition, listing, and critical habitat decisions essentially covering the
                                       period fiscal years 1974 through 1991. We discussed the completeness
                                       and accuracy of this information with FWS/NMFS officials at their
                                       headquarters and regional offices.
                                     ï¿½ Because these data bases contained limited data on the consultation
                                       process and recovery plans, we supplemented these data with
                                       information obtained from written questionnaires and structured
                                       interviews administered in each FWS and NMFS regional office. We
                                       obtained data on consultations occurring between fiscal years 1987 and
                                        1991, and for recovery plans between fiscal years 1974 and 1991.
                                     ï¿½ Through questionnaires to the regional offices, we obtained data on the
                                       agencies' performance in meeting the EsA's decision-making time
                                       frames.
                                   ï¿½ The geographical scope of our analysis included activities at Fws and NMFS
                                     headquarters, all seven i'ws regional offices, and all five NMFS regional
                                     offices.
                                   ï¿½ We performed our work between February 1991 and January 1992 in
                                     accordance with generally accepted government auditing standards.







                                     Page 10                              GAO/RCED-92-131BR Endangered Species Act




Section 3

ESA Processes and Agency Decision-Making

Requirements





                                    ï¿½ The ESA establishes five major processes for protecting plant and animal
                                      species: the petition process, the listing and critical habitat designation
                                      process, the consultation process, the recovery process, and the
                                      habitat-conservation planning process.
                                    ï¿½ Each of the ESA'S major processes is summarized in this section. See
                                      figures 3.1 through 3.3 for additional detailed information regarding the
                                      petition, listing and critical habitat designation, and consultation
                                      processes.
                                    * ESA criteria specify required time frames and the factors that FWS/NMFS
                                      must consider when making EsA-related decisions. While species-listing
                                      decisions must be made solely on the basis of the best scientific and
                                      commercial data available,' hereafter referred to as biological data,
                                      potential economic impacts may be considered in such cases as (1) when
                                      the agencies designate critical habitat and (2) when the Endangered
                                      Species Committee considers granting an exemption.


The Petition Process    * Any person or organization may petition FWS/NMFS to add a species to the
                                      endangered species list. Petitions can also be submitted to "delist" a
                                      species, reclassify a listed species (e.g., from threatened to endangered),
                                      or designate or revise critical habitat.
                                    ï¿½ Within 90 days of receiving a petition, FWS/NMFS are required to make a
                                      determination (called a "90-day finding") as to whether the petition
                                      presents "substantial" or adequate biological data to indicate that the
                                      petitioned action may be warranted. If FWS/NMFS find that the petition
                                      contains adequate data, they proceed with a review of the species' status.
                                      If, in their opinions, the petition does not contain sufficient data, FWS/NMFS
                                      notify the petitioner that additional data are needed.
                                    ï¿½ For those petitions presenting adequate biological data, FWS/NMFS must
                                      make a determination (called a "12-month finding") as to whether the
                                      petitioned action is warranted. This determination must be made within 12
                                      months of receiving the petition. Specifically, FWS/NMFS may find that the
                                      petitioned action is warranted, not warranted, or warranted but precluded.
                                      Petitioned actions are given the warranted but precluded designation
                                      when other pending listing actions take precedence and/or additional data
                                      are needed to make a warranted finding. Warranted but precluded findings
                                      must be reviewed on an annual basis until the petitioned action is found to
                                      be warranted or not.


                                       'The word "solely" was added to the ESA by the 1982 amendments to ensure that a listing decision is
                                      based exclusively on an evaluation of the biological risks faced by the species. The word "commercial"
                                      is included to allow the use of trade data (e.g., data concerning salmon harvests) but does not
                                      authorize the use of economic considerations as part of the listing process.


                                      Page 11                              GAO/RCED-92-131BR Endangered Species Act







                                                  Section 3
                                                  ESA Processes and Agency Decision-Making
                                                  Requirements










                                                  Shortly after making a warranted 12-month finding, FWS/NMFS proceed with
                                                  the listing process as described below, starting on page 13.



Figure 3.1: The Petition Process
                                                                                    FWS/NMFS Receive Petition



                                                                              FWS'NMFS Determine Whether Request
                                                                                   Qualifies As an ESA Petition


                                                                        I    Not an Esa       I    I       An ESA
                                                                               Petition                    Petition



                                                              FWS/NMFS
                                                            Inform Petitioners


                                                                                         90-Day Finding



                                                                        Petition Does Not                 Petition Contains
                                                                       Contain Substantital                  Substantial
                                                                          Inforration*                      Information*


                                                                           FWS/NMFS                          FWS/NMFS
                                                                           Announce                          Announce
                                                                         Finding Results                   Finding Results


                                                                                 FWS/NMFS Conduct Status Review
                                                                                   and Evaluate Public Comment


                                                                                          12-Month Finding



                                                                Petitioned                 Petitioned Action               Petitioned Acton
                                                               Action Is Not               Is Warranted but                  Is Warranted
                                                                Warranted                     Precluded


                                                                FWS/NMFS                      FWS/NMFS                    FWS/NMFS Issue
                                                                Announce                      Announce                     Proposed Rule
                                                              Finding Results               Finding Results

                                                                                                 FWS/NMFS review finding annually until
                                                                                                 petitioned action is found warranted or
                                                                                                 not warranted.

                                                   Note: "Substantial information" is defined as information that would lead a reasonable person to
                                                   believe that the measure proposed in the petition may be warranted.




                                                   Page 12                                              GAO/RCED-92-131BR Endangered Species Act






                                      Section 3
                                      ESA Processes and Agency Decision-Making
                                      Requirements







The  Listing   nd             ï¿½       Species may be listed through the petition process as discussed above or
                                       at the initiation of FWS/NMFS if they have adequate biological data indicating
Critical Habitat                      that a species warrants protection under the ESA. In either case, FWS/NMFS
Designation Processes    publish a proposed rule in the Federal Register to begin the listing action.
                                       ESA protection for the species begins when a proposed rule is issued.
                                    ï¿½ FWS/NMFS accept public comments on proposed rules for at least 60 days
                                       following their publication and, if any person requests, will hold at least
                                       one public hearing.
                                    ï¿½ Within I year of the publication of a proposed rule, FWS/NMFS are required
                                       to issue a final rule to implement the listing action. However, FWS/NMFS
                                       may also find that the listing action should not be made, withdraw the
                                       proposed rule if the available evidence does not justify the action, or
                                       extend the 1-year period for 6 months if there is disagreement regarding
                                       the sufficiency or accuracy of the available biological data.
                                    * The ESA requires that FWS/NMFS designate critical habitat to the maximum
                                       extent prudent at the time they list a species unless it would not benefit
                                       the species or if insufficient data exist on which to base the designation. In
                                       the latter case, FWS/NMFS have an additional 12 months to gather data and
                                       make the designation.
                                    ï¿½ In making critical habitat designations, FWS/NMFS may consider the
                                       potential economic impacts of specifying a particular area as critical
                                       habitat. However, FWS/NMFS may not exclude an area from a critical habitat
                                       designation if doing so would lead to the species' extinction.

























                                       Page 13                               GAO/RCED-92-131BR Endangered Species Act





                                            Section 3
                                            ESA Processes and Agency Decision-Making
                                            Requirements






Figure 3.2: The Listing and Critical
Habitat Designation Process
                                                      Warranted 12-Month                              FWS/NMFS Initiate
                                                       Finding on Petition                              Species Listing
                                                         to List Species
                                                             l I

                                                                          Proposed Rule to List Species
                                                                         and/or Designate Critical Habitat


                                                                                    ,[
                                                                       FWS/NMFS Accept Public Comment
                                                                             on the Proposed Rule


                                                                                    1
                                                                          FWS/NMFS Evaluate Data and
                                                                              Comments Received


                                                                                      1
                                                                    If Rule Contains Critical Habitat FWS/NMFS
                                                                       Evaluate Economic Impacts; Habitat
                                                                           Boundaries May Be Revised



                                                                          FWS/NMFS Issue Final Rule to
                                                                          List Species and/or Designate
                                                                                 Critical Habitat


                                            Note: Listing usually becomes effective 30 days after final rule is issued. FWS/NMFS may take an
                                            additional 12 months, after issuance of the final rule, to designate critical habitat if insufficient
                                            data exist on which to base the designation.



           The Consultati        o       n *Section 7 of the ESA requires that all federal agencies ensure that their
              The  Consultation             actions are not likely to jeopardize the continued existence of listed
Process                                      species or adversely modify critical habitat. In fulfilling this requirement,
                                            federal agencies must consult with FWS/NMFS when any activity they permit,



                                            Page 14                                     GAO/RCED-92-131BR Endangered Species Act






  Section 3
  ESA Processes and Agency Decision-Making
  Requirements







  fund, or conduct could affect listed species. The goal of the consultation
  process is to identify and resolve conflicts between (1) the protection and
  enhancement of listed species and (2) proposed federal actions.
ï¿½ The process usually begins with informal discussions and/or
  correspondence between the federal agency and FWS/NMFS (called
  "informal consultation") designed to assist the federal agency in
  determining whether further formal consultation is required. FWS/NMFS may
  suggest project modifications that would avoid adverse impacts to listed
  species or critical habitat.
ï¿½ Federal agencies proceed to formal consultation if their actions may affect
  listed species or their habitat. However, the agencies need not formally
  consult if FWS/NMFS have confirmed, during informal consultation, that the
  proposed action is not likely to adversely affect listed species or their
  habitat.
* The ESA establishes a time frame of 90 days for the completion of formal
  consultation, unless FWS/NMFS and the federal agency mutually agree to an
  extension, with the applicant's consent.
* The ESA requires that FWS/NMFS issue a "biological opinion" within 45 days
  of the conclusion of formal consultation that reviews the potential effects
  of the proposed action on listed species and/or critical habitat. FWS/NMFS
  must base the opinion on the best available biological information.
ï¿½ FwS/NMFS issue a "no jeopardy" biological opinion if they find that the
  proposed action is not likely to jeopardize the continued existence of
  listed species or adversely modify their habitat.
* If FWs/NMFS find that the action would appreciably reduce the likelihood of
  the species' survival and recovery, they issue a "jeopardy" biological
  opinion. Jeopardy opinions can include reasonable and prudent
  alternatives that define modifications to the agency's proposed action that
  enable it to continue and still be consistent with ESA's requirements for
  protecting species.
ï¿½ Following the issuance of the biological opinion, the federal agency
  determines whether it will comply with the opinion or seek an exemption
  from the act's requirements.













  Page 15                              GAO/RCED-92-131BR Endangered Species Act






                                                Section 3
                                                ESA Processes and Agency Decision-Making
                                                Requirements









Figure 3.3: The Consultation Process

                                                                                 Agency Informs FMS/NMFS of
                                                                                   a Proposed Federal Action


                                                               Action Is a Major                               Action Is Not a Major
                                                             Construction Activity                             Construction Activity


                                                       FWS/NMFS Determine Whether                          Agency Determines Whether
                                                         Listed or Proposed Species                          Action May Affect Listed
                                                          or Critical Habitat May Be                          or Proposed Species or
                                                          Present in the Action Area                              Critical Habitat


                                                       No Species          Species                       Action May           Action Will
                                                        or Critical       or Critical                   Affect Species        Not Affect
                                                         Habitat         Habitat May                      or Critical          Species
                                                       Are Present        Be Present                        Habitat           or Critical
                                                                                                                              Habitat

                                                           End                                              Options              End
                                                       Consultation                                                          Consultation


                                                          Agency Prepares Biological
                                                        Assessment of Project Impacts;               Informal Consultation:
                                                           FWS/NMFS Concur or Do                    Modify Proposed Action
                                                           Not Concur With Results


                                                         Action Is            Action Is
                                                       Not Likely to          Likely to
                                                        Adversely            Adversely
                                                      Affect Species'      Affect Species'
                                                      Critical Habitat     Critical Habitat
                                                                                 I


                                                           End  Conference                          Formal Consultation 
                                                       Consultation      (Proposed Species)           (Listed Species)


                                                                                                    FWS/NMFS Prepare
                                                                                                     Biological Opinion


                                                                                           No Jeopardy             Jeopardy
                                                                                              Opinion                Opinion
                                                                                                                 Opinion Almost
                                                                                               End        I   | Always Includes
                                                                                                                 Reasonable and
                                                                                                                     Prudent
                                                                                                                   Alternatives






                                                Page 16                                         GAO/RCED-92-131BR Endangered Species Act





                                      Section 3
                                      ESA Processes and Agency Decision-Making
                                      Requirements







                                   ' The ESA requires that FWS/NMFS develop and implement recovery plans for
                                      all species they list as endangered or threatened, unless such a plan would
                                      not benefit the species. A recovery plan identifies, justifies, and schedules
                                      the research and management actions necessary to reverse the decline of a
                                      species and ensure its long-term survival.
                                   ï¿½ Recovery plans also establish listed species' population levels and/or the
                                      habitat maintenance and enhancement goals that determine whether the
                                      species has recovered. The main goal of recovery plans is to restore
                                      species so that they can live as viable self-sustaining components of their
                                      ecosystems. When this goal is met, FWS/NMFS may take steps to delist the
                                      species.
                                    ï¿½ The ESA does not specify time frames for recovery plan formation and
                                      implementation. However, FWS has established a goal of composing draft
                                      recovery plans within 1 year and approved plans within 2-1/2 years of a
                                      species' listing.
                                    ï¿½ FWS/NMFS solicit comments from state and federal agencies, experts, and
                                      the interested public on draft recovery plans during a formal public
                                      comment period announced in the Federal Register.
                                    * Within FWS, regional directors are responsible for approving and
                                      implementing recovery plans for species that occur in their regions. Fws
                                      designates a lead region to coordinate recovery activities for species
                                      which occur in more than one region. Within NMFS, the Assistant
                                      Administrator for Fisheries approves recovery plans, while the Office of
                                      Protected Resources and the appropriate NMFS regional office(s)
                                      coordinate recovery plan implementation.
                                    ï¿½ FWS/NMFS periodically review approved recovery plans to determine if
                                      updates or revisions are needed.
                                    ï¿½ The ESA requires that FWS/NMFS monitor, for not less than 5 years, the status
                                      of species which have recovered and been delisted. FWS/NMFS must relist
                                      any species which becomes endangered or threatened again.


                                    ï¿½ The ESA generally prohibits any person from taking a species listed as
                                      endangered or threatened. Taking is defined, in part, as the harming or
Conservation                          harassment of a listed species and under Fws guidelines may include the
Planning Process and                  destruction of the species' habitat.
Incidental Take              ï¿½        The Congress amended the ESA in 1982, establishing a process whereby
                                      Fws/NMFS may issue permits that allow private individuals to incidentally
Permits                               take listed species.
                                    ï¿½ Permit applicants are required to institute appropriate conservation
                                      measures for habitat maintenance, enhancement, and protection. These




                                      Page 17                              GAO/RCED-92-131BR Endangered Species Act





  Section 3
  ESA Processes and Agency Decision-Making
  Requirements







  conservation measures are defined in a habitat conservation plan, which is
  a mandatory component of any incidental take permit.
* FWS/NMFS publish a notice in the Federal Register soliciting comments from
  interested parties on each application for a permit and its accompanying
  habitat conservation plan.
* The Office of Management Authority at FWS and the Assistant
  Administrator for Fisheries at NMFS are responsible for reviewing and
  approving incidental take permit applications.
ï¿½ The ESA prohibits FWS/NMFS from issuing a permit if doing so would
  appreciably reduce the likelihood of the survival and recovery of the
  species in the wild.
ï¿½ The incidental taking of a listed species resulting from federal agency
  actions may also be allowed under the ESA. In such cases, a statement
  determining the amount or extent of anticipated taking would accompany
  the biological opinion issued by FWS/NMFS.


































  Page 18                              GAO/RCED-92-131BR Endangered Species Act




Section 4

Overview of FWS and NMFS Actions to

Implement ESA Requirements Through

Fiscal Year 1991


                                 ï¿½ Through fiscal year 1991, FWS/NMFS had received over 200 petitions for
                                    listing endangered species.
                                 ï¿½ Subsequent agency review had found that ESA listing may be warranted for
                                    65 percent of the petitioned species.
                                 ï¿½ FVws had determined that protection for 114 species was warranted but
                                    precluded because of the need for FWS action to protect other species or
                                    collect additional data.
                                  * Fws and, to a lesser extent, NMFS had not always been timely in meeting
                                    deadlines established at various points during the petition and listing
                                    processes.
                                  * Over 650 domestic species had been placed on the endangered species list;
                                    Fws is responsible for over 95 percent of these species.
                                  * Most Fws endangered species activity has been concentrated in two areas
                                    of the country; the far West and the Southeast.
                                  * Critical habitat had been designated for less than 20 percent of listed
                                    species.
                                  - Almost 90 percent of all consultations between FWS/NMFS and federal
                                    agencies over proposed federal actions in fiscal years 1987 through 1991
                                    were resolved informally.
                                  ï¿½ Over 90 percent of the formal consultations over proposed federal actions
                                    concluded that these actions would not harm listed species.
                                  ï¿½ Of the less than 10 percent of the formal consultations which concluded
                                    that a proposed action would likely jeopardize a species, almost 90
                                    percent provided reasonable but prudent alternatives that would allow the
                                    project to proceed.
                                  F ws/NMFS had made slow progress but were paying greater attention to
                                    recovery plan development; plans had been approved for over 60 percent
                                    of listed species.
                                  ï¿½ Only 20 permits to incidentally take listed species had been requested
                                    since the ESA was amended in 1982; only 1 permit had been denied.
                                  ï¿½ Exemptions to the ESA have been sought six times; only one exemption
                                    had been granted, and one other was still under review.
                                  * Sixteen species had been taken off the endangered species list because of
                                    recovery or extinction, or because the original data were in error.
                                  ï¿½ Beyond the 651 species that had been listed, about 600 others were
                                    recognized by Fws as being vulnerable enough to support listing proposals.








                                    Page 19                               GAO/RCED-92-131BR Endangered Species Act






                                        Section 4
                                        Overview of FWS and NMFS Actions to
                                        Implement ESA Requirements Through
                                        Fiscal Year 1991






                                t oEFWS/NMFS had received a total of 209 petitions to list domestic species as
                 D aon  Extent  and      endangered or threatened since the ESA'S inception,  as shown in figure 4.1.
Timeliness of Petition                   Many petitions address more than one species.
Activity                                 FWS had received 190 petitions; NMFS, 19.
                                        The number of petitions annually received by FWS/NMFS had varied
                                        substantially over the years but had been generally increasing since 1987.




Figure 4.1: Number of Listing Petitions Received Annually by FWS/NMFS, Through Fiscal Year 1991
40 Number of Petitions Received

35

30

25





20
10

 5I

 0

 1974   1975   1976   1977   1978   1979   1980  1981   1982   1983   1984  1985  1986   1987   1988   1989  g1990o  1991
 Fiscal Year

                                        Total number of petitions, 209.


                                        Source: GAO analysis of FWS/NMFS data bases.




                                        FWS/NMFS examine petitions to determine if they contain sufficient
                                        biological data to support the protection of a given species. This initial
                                        determination is required within 90 days.



                                        'This total does not include approximately 35 petitions that FWS/NMFS received to delist a species,
                                        designate critical habitat, or reclassify a species.


                                        Page 20                                 GAO/RCED-92-131BR Endangered Species Act







                                            Section 4
                                            Overview of FWS and NMFS Actions to
                                            Implement ESA Requirements Through
                                            Fiscal Year 1991








                                            As shown in figure 4.2, FWS/NMFS had found that 65 percent of the petitions
                                            provided adequate biological information to indicate that the species'
                                            status should be looked at more closely and that ESA listing may be
                                            warranted.



Figure 4.2: Results of FWS/NMFS
90-Day Findings, Through Fiscal Year
1991                                                                                           90-Day Finding Not Yet Determined (23)




                                                                      *18%  c4---Petition Did Not Contain Substantial
                                                        k17%   1                \Information (24)








                                                             6                  }





                                                                                           Petition Contained Substantial
                                                                                           Information (89)

                                            Total number of 90-day findings required, 136.

                                             Source: GAO analysis of FWS/NMFS data bases.





                                          * Once a petition has been found to contain adequate biological information,
                                             FWS/NMFS conduct further reviews to determine if the petitioned action is
                                            warranted. This determination must be made within 12 months of
                                            receiving the petition.




                                            2The number of 90-day findings (136) differs from the number of petitions received (209) for several
                                            reasons, including the following: the 90-day finding total does not include petitions that were not
                                            eligible under the ESA, duplicates of petitions received earlier for the same species, and petitions that
                                             were withdrawn or referred from FWS to NMFS. Additionally, FWS/NMFS have received petitions
                                            since the ESA's inception but have only been required to make 90-day findings since the 1982 ESA
                                            amendments.


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                                          Section 4
                                          Overview of FWS and NMFS Actions to
                                          Implement ESA Requirements Through
                                          Fiscal Year 1991







                                       * As shown in figure 4.3, the agencies concluded that over half of these
                                          petitions warranted protection under the ESA.3


Figure 4.3: Results of FWS/NMFS
12-Month Findings, Through Fiscal                                                   12-Month Finding Not Yet Determined
Year 1991                                                                           (30)


                                                                                      Protection of Species Warranted but
                                                                                      Precluded (18)



                                                   24 %                              Protection of Spees Warranted (46)


                                                       2 ~37%-  Prtcino  pcisWratd6






                                                                                       Protection of Species Not Warranted
                                                                                       (31)
                                          Total number of 12-month findings required, 125.

                                          Source: GAO analysis of FWS/NMFS data bases.



Use of the Warranted but              * As indicated in figure 4.3, 14 percent of Fws' 12-month findings determined
Precluded Category                       that protection was warranted but precluded. Under the ESA, FWS/NMFS may
                                          use this category for petitioned species meriting protection when (1)
                                          pending proposals take precedence and/or additional data are needed to
                                          make a warranted finding and (2) expeditious progress is being made to
                                          list qualified species. According to agency officials, the warranted but
                                          precluded category is often used when additional data are needed to find a
                                          petitioned action warranted.
                                       * Through fiscal year 1991, only Fws had placed species in this category.



                                          T'he number of 12-month findings (125) differs from the number of 90-day findings (136) primarily
                                          because only petitions found to contain adequate information receive 12-month findings and some
                                          petitions were not required to receive 90-day findings because they were submitted prior to the 1982
                                          ESA amendments.


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                                       Section 4
                                       Overview of FWS and NMFS Actions to
                                       Implement ESA Requirements Through
                                       Fiscal Year 1991







                                    ï¿½ When designated as warranted but precluded, species do not receive
                                       formal protection under the ESA.
                                    * Since the ESA was amended in 1982 to authorize use of a warranted but
                                       precluded designation, 114 species had been placed in this category for 2
                                       or more years.4 (See table 4.1.) Of these, 19 were ultimately declared
                                       endangered or threatened, while 16 were found not to warrant ESA
                                       protection. An additional 77 species are still awaiting FWS action. The
                                       outcome for two species is unknown.

Table 4.1: FWS Use of the Warranted
but Precluded Category, Through       Number of years in the warranted but precluded category  Number of species
Fiscal Year 1991                     2                                                                        9
                                       3                                                                      15
                                       4                                                                       3
                                       5                                                                      17
                                       6                                                                       9
                                       7                                                                       3
                                       8                                                                      56
                                       Unknown                                                                 2
                                                                                                                114
                                       Source: GAO analysis of FWS data base.



Timeliness of Petition             ï¿½ Of the 115 90-day findings Fws was responsible for acting on (6 were not
Actions                               due at the end of fiscal year 1991), 26 percent were issued on time or early,
                                       and another 57 percent were late by less than 4 months. Seventeen percent
                                       of the findings were over 4 months late, and 9 percent were 6 or more
                                       months late.
                                     * NMFS has been required to make fourteen 90-day findings. Of these, only
                                       two were more than 2 months late.
                                     ï¿½ Of the 105 12-month findings Fws was responsible for acting on (an
                                       additional 10 were not due at the end of fiscal year 1991 or the due date
                                       was missing), 33 percent were issued on time or early, and another 45
                                       percent were late by less than 6 months. Twenty-two percent of the
                                       findings were over 6 months late, and 18 percent were over 1 year late.
                                     * NMFS has made ten 12-month findings. Of these, only two were more than 1
                                       month late.




                                       4This does not include a 1975 Smithsonian Institution petition to list over 1,700 plant species; at the
                                       end of fiscal year 1991, over 1,500 of these plants were in the warranted but precluded category.


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                                        Section 4
                                        Overview of FWS and NMFS Actions to
                                        Implement ESA Requirements Through
                                        Fiscal Year 1991






                                        FWS and NMFS officials cite several factors as contributing to the number of
                                        missed deadlines: (1) resource constraints, (2) the need for further study
                                        and additional biological data, and (3) higher priority activities.


Data on Extent and
Timeliness of Listing
and Critical Habitat
Designation Activity


Number of                 ï¿½             As shown in figure 4.4, 651 domestic species had been listed as
Endangered/Threatened                   endangered or threatened. Of these, 134 were originally listed under
Species                                 previous endangered species legislation that was made part of the ESA.
                                     ï¿½ At the end of fiscal year 1991, FWS was responsible for 638 of the listed
                                        Species; NMFS was responsible for 19. The agencies shared jurisdiction over
                                        six species of sea turtles.
                                     ï¿½ Species can be listed as the result of either the petition process or as the
                                        result of independent FWS/NMFS action. According to an FWS official, the
                                        majority of listed species originated through the petition process.'
                                     * The number of species annually listed by FWS/NMFS has varied widely over
                                        time, ranging from 33 to 53 during fiscal years 1987 through 1991.


















                                        5This is so because although FWS/NMFS have received only 209 listing petitions, as noted earlier, many
                                        petitions address more than one species. For example, in 1975 FWS received a petition from the
                                        Smithsonian Institution to list over 1,700 plant species.


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                                           Section 4
                                           Overview of FWS and NMFS Actions to
                                           Implement ESA Requirements Through
                                           Fiscal Year 1991










Figure 4.4: Annual Number of Species Listed by FWS/NMFS, Through Fiscal Year 1991
Number of Species Listed
75
70
65
60
55
50
45
40
35
30
25
20
15
10
 5
 0
 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991

 Fiscal Year

                                          Total number of listed species, 651.


                                          Source: GAO analysis of FWS/NMFS data bases.





                                        * Figure 4.5 demonstrates that approximately 60 percent of the listed
                                          species are animals, while about 40 percent are plants.
                                          Of the listed species that are animals, most are vertebrates; about
                                          one-quarter are invertebrates.



















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                                          Section 4
                                          Overview of FWS and NMFS Actions to
                                          Implement ESA Requirements Through
                                          Fiscal Year 1991








Figure 4.5: Breakdown of Listed
Species by Biological Classification                                                  Invertebrates (88)







                                                                     41%              Plants (270)











                                                                                      Vertebrates (293)

                                          Total number of listed species, 651.

                                          Source: GAO analysis of FWS/NMFS data bases.





                                          The majority of Fws' endangered species activity has been concentrated in
                                          two parts of the country-the far West (Region 1) and the Southeast
                                          (Region 4). (See fig. 4.6.)























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                                            Section 4
                                            Overview of FWS and NMFS Actions to
                                            Implement ESA Requirements Through
                                            Fiscal Year 1991







Figure 4.6: Number of Listed Species in Each FWS Region, Through Fiscal Year 1991





       rag-
     Region 7                                          Ion
     Alaska                                       Region 6                          Region
     6 Listed Species.                . ...             . 41 Listed Species  ii   33 Listed Species         Boston



                       205 Listed Species


                            g                                                                            20 Listed Species
                                                                 A,.,,,........ .e..,-r.






          ~~~~~~~~iiHawaii                                                                                 Puertoij):  Riciioi
                   ~~~~~~~~~~~~~~~~~~~......(Region 1)                                                     (Region 4)
















                                           All of NMFW' listing decisions are made at NMFS headquarters; its five
                                                 regional offices provide input into decisions affecting species found within
                                           those regional offices' jurisdiction. (See fig. 4.7.)



















                                              Page 27                                GAO/RCED-92-131B EndangerListed Species Act
                                       ï¿½iiiiiiiiiiii~~ ::::  .. ............. ......i o n "'2






















                                           those regional offices' jurisdiction. (See fig. 4.7.)







                                         Section 4
                                         Overview of FWS and NMFS Actions to
                                         Implement ESA Requirements Through
                                         Fiscal Year 1991







Figure 4.7: NMFS Regional Office Boundaries


                                Seattle, WA



        Juneau, AK




                     Southwest RegionI

                        (SA~~~~~~~~~outheast Region



                            ii::i:ii:i::ii Note: The total number of listed species lvnder NMFSpurisdiction is 19.MD













                                         Source      : NMFS.
 Critical Habitat                      The EsA requires Fws/NmFs to designate critical habitat to the maximu






                                Designat extent prud ent at the time they list a species (unless it would not benefit
    D (     Southwest Regnation)









                                         ws/Note:s had designated criticttal hanumbeitar of listed species unas der NMFS' jurisdictedion is 19.
                                         fiSource: NMFS..
                           had critica l ab itat The E  requires FWS/NMFS to designated included: (1) critical   habitat to th e maximumons
                                          do extent   n eessar iy provide much  benefit for a  sp ecies  (unless it woul d   it
                                         the species or if insufficient data exist on which to base the designation).
                                         other SA requirementshad designatined critical habitat for few species, as depited ina low

                                         The reasons cited by F'WSNMFS officials on why so many species had not
                                         had critical habitat designated included: (1) critical habitat designations

                                         other ESA requirements,   designating  critical habitat is considered a  low
                                         priority; (3) additional biological and economic data necessary to make
                                          sound critical habitat determinations are difficult to obtain; and (4) critical





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                                        Section 4
                                        Overview of FWS and NMFS Actions to
                                        Implement ESA Requirements Through
                                        Fiscal Year 1991







                                        habitat designations may expose species to collection or illegal taking by
                                        publicly identifying where they are located.


Figure 4.8: Number of Species With
Critical Habitat Designation, Through
Fiscal Year 1991

                                                                                 Species With Critical Habitat (105)







                                                  84% -  Species Without Critical Habitat (546)





                                       Total number of listed species, 651.

                                       Source: GAO analysis of FWS/NMFS data bases.



Timeliness of Final Rule             ï¿½ Of the 368 final rules that Fws was responsible for acting on since the 1982
Makings                                amendments which established the 1-year time frame, 63 percent were
                                       issued within 1 year and another 28 percent were late by less than 6
                                       months. Thirty-four (9 percent) were issued over 6 months late, and 15 (4
                                       percent) were issued over 1 year late.
                                     ï¿½ Since 1980, when NMFS began tracking data on rule-making timeliness, only
                                       three rules to list a species as endangered or threatened had been issued.
                                       None had taken more than 1 year to become final. The final rules for an
                                       additional four species were not due during fiscal year 1991.
                                     ï¿½ Only 16 percent of the listed species have designated critical habitat.
                                       However, of the 34 final rules that were issued over 6 months late, 59
                                       percent included the designation of critical habitat.
                                     ï¿½ FWS and NMFS officials cited several factors as contributing to missed
                                       deadlines: (1) resource constraints, (2) the need for further study and
                                       additional biological data, and (3) higher priority activities.





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                                           Section 4
                                           Overview of FWS and NMFS Actions to
                                           Implement ESA Requirements Through
                                           Fiscal Year 1991







          Data  on  Consultation          Thousands of consultations between FWS/NMFS and federal agencies over
               Data o            n Consultaproposed federal actions had been conducted annually over the past 5
Activity                                   fiscal years, as seen in figure 4.9.
                                           The vast majority of these consultations had bean concluded at the
                                           informal level; a much less burdensome process than formal consultations.
                                           In fact, 89 percent of all consultations between FWS/NMFS and federal
                                           agencies over proposed federal actions in fiscal years 1987 through 1991
                                           were resolved informally.



Figure 4.9: Number of Informal and
Formal Consultations, Fiscal Years         5000  Number of Consultations
1987 Through 1991
                                           4500

                                           4000

                                           3500

                                           3000

                                           2500

                                           2000

                                           1500
                                           1000
                                            500
                                              0

                                                  1987            1988            1989            1990             1991
                                                  Fiscal Year

                                                 = Informal Consultations (16,161): FWS=15,470; NMFS=691
                                                      Formal Consultations (2,050): FWS=1,806; NMFS=244

                                           Note: The total number of informal consultations does not include responses from one FWS
                                           region. This region aggregated various types of informal consultations, including species lists and
                                           technical assistance, that we were unable to separate out. However, the relationship between
                                           informal and formal consultations remains the same even if these aggregated numbers are
                                           included.





                                          Formal consultations generally require the issuance of a biological opinion
                                           by FWS/NMFS that states whether a proposed federal action, such as a water




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                                         Section 4
                                         Overview of FWS and NMFS Actions to
                                         Implement ESA Requirements Through
                                         Fiscal Year 1991








                                         development project or pesticide registration, would likely jeopardize a
                                         listed species.
                                         As shown in figure 4.10, over 90 percent of the biological opinions issued
                                         by FWS/NMFS during the past 5 fiscal years have found that the proposed
                                         action would not likely place a listed species in jeopardy. Of the 2,050
                                         formal consultations, only 181 resulted in a jeopardy opinion. (A 1989
                                         biological opinion issued to the Environmental Protection Agency
                                         covering over 100 pesticides and their effects on 165 listed species that
                                         resulted in 152 jeopardy decisions is not included in this count because of
                                         its unusual nature.)
                                        Fws regional officials attributed a substantial portion of the increase in
                                         fiscal year 1991 biological opinions to consultations involving individual
                                         timber sales on federal lands in the Northwest.



Figure 4.10: Results of FWS/NMFS
Biological Opinions, Fiscal Years 1987
Through 1991                            750  Number of Biological Opinions
                                         700
                                         650
                                         600
                                         550
                                         500
                                         450
                                         400
                                         350
                                         300
                                         250
                                         200
                                         150
                                         100
                                          5O
                                           0

                                               1987   1988   1989   1990   1991
                                               Fiscal Year

                                                   Proposed Action Would Likely Jeopardize Species (181)
                                                     Proposed Action Would Not Jeopardize Species (1,869)



                                        As depicted in figure 4.11, almost 90 percent of FWS'/NMFS' biological
                                        opinions concluding that a proposed action would likely place a listed





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                                        Section 4
                                        Overview of FWS and NMFS Actions to
                                        Implement ESA Requirements Through
                                        Fiscal Year 1991







                                        species in jeopardy provided reasonable and prudent alternatives that
                                        would allow the action to proceed.
                                     ï¿½ This finding is consistent with the conclusion in our 1987 report,
                                        Endangered Species: Limited Effect of Consultation Requirements on
                                        Western Water Projects (GAO/RCED-87-78, Mar. 26, 1987), which stated that
                                        the ESA'S consultation requirements had,'on the whole, had little impact on
                                        western water development. Of the 3,200 consultations reviewed, none
                                        had caused a project to be terminated, and only 68 had any impact on the
                                        project. These consultations had a varying but normally limited impact on
                                        the projects' timing, scope, and cost.
                                     * Alternative actions which have allowed proposed actions to proceed have
                                        included: (1) modifications to the project's design, (2) adjustment in site
                                        location, and (3) emission restrictions.



Figure 4.11: Number of Jeopardy
Opinions With Reasonable and
Prudent Alternatives, Fiscal Years    90  Number of Jeopardy Opinions
1987 Through 1991                     80

                                        70

                                        60

                                        50

                                        40



                                        20

                                        10

                                         0

                                             1987   1988   1989   1990   1991
                                             Fiscal Year

                                            = Opinions Without Reasonable and Prudent Alternatives (23)
                                            Im   Opinions With Reasonable and Prudent Altematives (158)











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                                       Section 4
                                       Overview of FWS and NMFS Actions to
                                       Implement ESA Requirements Through
                                       Fiscal Year 1991







Data on Extent and                  . Amendments to the ESA in 1978 required FWS/NMFS to develop and
                                       implement recovery plans for listed species, unless a plan would not
Timeliness of                         benefit the species.
Recovery Plan                       . FWS/NMFS had approved plans for over 60 percent of all listed species, as
                                       shown in figure 4.12. For those species that had been listed for more than
                                       3 years, 70 percent had approved recovery plans (Fws has established a
                                       goal of approving recovery plans within 2-1/2 years of a species' listing.)
                                       The number of recovery plans does not necessarily equal the number of
                                       listed species because in some cases, recovery plans may cover more than
                                       one species but in other cases, a species may be covered in more than one
                                       recovery plan. For example, two recovery plans are under way for the
                                       brown pelican-one for the California brown pelican and the other for the
                                       eastern brown pelican. In addition, NMFS is developing separate recovery
                                       plans for species of sea turtles found in both the Atlantic and Pacific
                                       oceans.


Figure 4.12: Status of FWS/NMFS
Recovery Plan Development Efforts,
Through Fiscal Year 1991                                                       2%
                                                                                Plan Would Not Benefit Species (16)
                                                                                Plan Drafted but Not Approved (92)



                                                  14%
                                                             ) . L23% e-    -  Plan Not Started (147)






                                                   61%




                                                                                Plan Approved (395)
                                       Total number of recovery plans, 650.








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                                         Section 4
                                         Overview of FWS and NMFS Actions to
                                         Implement ESA Requirements Through
                                         Fiscal Year 1991







                                         Fvs has displayed substantially better performance in approving recovery
                                         plans than NMFS. As shown in figures 4.13 and 4.14, Fws had approved 62
                                         percent of 626 recovery plans that it is responsible for, while NMFS had
                                         approved 29 percent of its 24 recovery plans.


Figure 4.13: FWS Recovery Plan
Development Efforts, Through Fiscal
Year 1991                                                                          Plan Drafted but Not Approved (9)




                                                                 29% ,--           Plan Approved (7)
                                              ,38%






                                                                  33%    ~~~~~     Plan Not Started (8)




                                         Number of recovery plans by NMFS, 24.

























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                                        Section 4
                                        Overview of FWS and NMFS Actions to
                                        Implement ESA Requirements Through
                                        Fiscal Year 1991







Figure 4.14: NMFS Recovery Plan
Development Efforts, Through Fiscal                                             3%
Year 1991                                                                       Plan Would Not Benefit Species (16)

                                                                                 Plan Drafted but Not Approved (83)




                                                              22% 0              Plan Not Started (139)













                                                                                 Plan Approved (388)
                                        Number of recovery plans by FWS, 626.


Timeliness of Recovery              ï¿½ FWS/NMFS progress toward recovery plan development had been slow, but
Plan Development                       agency officials stated that recovery planning had been receiving higher
                                       priority in recent years. Also, FWS had received increased funding since
                                       fiscal year 1988 for recovery purposes.
                                     a Of the almost 400 species with approved plans under FWS jurisdiction, 263,
                                        or over 65 percent, took 3 years or more from the date of listing (or Nov.
                                        1978, when recovery plans were first required, whichever came later) for
                                       plan approval, as depicted in table 4.2.

Table 4.2: Species Listed by FWS for 3
or More Years With Approved            Number of years listed without a plan                      Number of species
Recovery Plans, Through Fiscal Year                                                                              56
1991                                   4                                                                         68

                                       5                                                                         83
                                       6                                                                         32
                                       7                                                                         13
                                       8 or more                                                                 11
                                                                                                                  263





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                                       Section 4
                                       Overview of FWS and NMFS Actions to
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                                       Fiscal Year 1991







                                    ï¿½ Of the more than 200 species without an approved recovery plan from FWs,
                                       over half had been listed for 3 or more years, as shown in table 4.3. Plans
                                       for these species either had not been started or were still in draft form.

Table 4.3: Species Listed by FWS for 3
or More Years Without Approved        Number of years listed without a plan                      Number of species
Recovery Plans, Through Fiscal Year                                                                            33
1991                                  4                                                                         20
                                       5                                                                        20
                                       6                                                                        20
                                       7                                                                        10
                                       8 or more                                                                22
                                                                                                                125

                                    ï¿½ Of the 24 species that NMFS is responsible for developing recovery plans
                                       for, 15 had been listed for 6 or more years and still did not have approved
                                       plans. Of the seven species with approved plans, all took over 6 years from
                                       the date the species was listed for plan completion. The remaining two
                                       species had been recently listed and were awaiting plan development.
                                     * FWS/NMFS officials cited several factors as contributing to why it has taken
                                       so long to develop and implement recovery plans for listed species,
                                       including the following: (1) other higher priority ESA activities, (2) resource
                                       constraints, and (3) the need for further study and additional biological
                                       data.


Data on Incidental                  ï¿½ Amendments to the ESA in 1982 authorized FWS or NMFS to permit the
                                       incidental taking of listed species if appropriate conservation measures
Take  Permits                         are taken, including the development of a habitat conservation plan.
                                     ï¿½ Fws had received 20 incidental take permit requests; as depicted in figure
                                       4.15, only 1 application had been denied.
                                     ï¿½ As of the end of fiscal year 1991, NMFS had received no applications for
                                       incidental take permits, according to agency officials.














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                                       Section 4
                                       Overview of FWS and NMFS Actions to
                                       Implement ESA Requirements Through
                                       Fiscal Year 1991







Figure 4.15: Number of Incidental Take
Permits Issued by FWS, Through                                              5%
Fiscal Year 1991                                                            5
                    ~~~~~~~~~~~~~Fiscal Year 1991  ~Permit Application Abandoned (1)

                                                                                5%
                                                                                Permit Denied (1)








                                            35%                55%            Permit Issued (11 )








                                                                                Permit Pending (7)
                                       Total number of incidental take permit applications, 20.

                                       Source: FWS.



Use of Exemption                   . The exemption process was created as part of the ESA'S 1978 amendments
                                       to determine whether the economic benefits of a proposed federal action
Process                              outweigh the benefits of protecting a species.
                                     * This process, along with the designation of critical habitat, is the principal
                                       way in which economic factors are intended to be taken into consideration
                                       under the act.
                                       A cabinet-level Endangered Species Committee reviews all applications
                                       for exemptions. This Committee comprises the Secretary of the Interior
                                       (who chairs the Committee), the Secretary of Agriculture, the Secretary of
                                       the Army, the Chairman of the Council of Economic Advisors, the
                                       Administrator of the Environmental Protection Agency, the Administrator
                                       of the National Oceanic and Atmospheric Administration, and an
                                       individual from each affected state.
                                       An exemption to the ESA has been sought six times. Of those, the
                                       Committee has considered two-Graylocks Dam and Reservoir (whooping




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                                       Section 4
                                       Overview of FWS and NMFS Actions to
                                       Implement ESA Requirements Through
                                       Fiscal Year 1991







                                       crane) and Tellico Dam (snail darter)-and is currently considering Pacific
                                       Northwest timber sales (spotted owl). The process was halted three other
                                       times by the party seeking the exemption before the Committee actually
                                       met to consider it.
                                       The Committee approved an exemption for the Graylocks Dam and
                                       Reservoir but did not grant an exemption for the Tellico Dam. The Pacific
                                       Northwest timber sales decision is expected by May 1992.


Number  of Species                   . Through fiscal year 1991, 16 species placed on the endangered species list
                                       had been taken off, or delisted. These species are shown in table 4.4.
Taken Off Endangered  . Similar to species-listing decisions, delistings must also be based on the
Species List                           best biological data available.
                                       The data must show that the species is neither endangered nor threatened
                                       because of one or more of the following reasons: (1) the species has
                                       become extinct; (2) the species has recovered to a point where protection
                                       under the ESA is no longer required; or (3) original data available when the
                                       species was listed, or the interpretation of such data, were in error.

Table 4.4: Species Delisted, Through
Fiscal Year 1991                       Species name                            Reason for delisting
                                       Butterfly, Bahama swallowtail          Original data in error
                                       Cactus, purple-spined hedgehog         Original data in error
                                       Cisco, longjaw (fish)                  Extinct
                                       Dove, Palau                            Recovered
                                       Duck, Mexican                          Original data in error
                                       Fantail, Palau (bird)                  Recovered
                                       Gambusia, Amistad (fish)               Extinct
                                       Milk-vetch, Rydberg (plant)            Recovered
                                       Owl, Palau                             Recovered
                                       Pupfish, Tecopa                        Extinct
                                       Pearly mussel, Sampson's               Extinct
                                       Pelican, brown                         Recovered (Southeast population)
                                       Pike, blue                             Extinct
                                       Sparrow, dusky seaside                 Extinct
                                       Sparrow, Santa Barbara song            Extinct
                                       Treefrog, Pine Barrens                 Original data in error
                                       Source: FWS.







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                                        Section 4
                                        Overview of FWS and NMFS Actions to
                                        Implement ESA Requirements Through
                                        Fiscal Year 1991






Backlog of Species                 ï¿½ Beyond the 651 species currently listed, Fws maintains a list of species that
                                        the agency is actively reviewing for possible inclusion on the endangered
Meriting Protection                  species list. These are known as 'candidate species."
                                     ï¿½ The candidate list is divided into several different categories. According to
                                        the latest Fws published candidate lists, about 600 domestic species are on
                                        FWS' category 1 list. Category 1 species are those for which Fws has
                                        adequate information to support proposals to list them as endangered or
                                        threatened under the ESA.
                                     ï¿½ FWS had placed an average of 44 species on the endangered species list per
                                        year during the past 5 fiscal years. At this rate, it will take FWS until 2006 to
                                        address the roughly 600 candidate species, even if no additional species
                                        are determined to be in need of protection or added to the candidate
                                        species list.
                                     * Beyond the approximately 600 species on Fws' category 1 list, Fws has
                                        identified over 3,000 category 2 species-species that may be threatened
                                        or endangered on the basis of available data. Similarly, the Nature
                                        Conservancy maintains a list containing over 5,000 domestic species that
                                        may be threatened or endangered.6
                                     * FWS officials indicated that the lack of priority afforded to listing species
                                        and resource constraints were the primary reasons for their slow progress
                                        in listing more species.
                                     * NMFS also maintains a list of candidate species identified for listing
                                        consideration. The latest candidate list identifies 34 animal and plant
                                        species. NMFS will conduct a review of the status of each candidate species
                                        to determine if the species warrants listing as threatened or endangered.

















                                        'The Nature Conservancy, a private nonprofit organization, maintains this list in cooperation with the
                                        National Network of State Heritage Programs, a biological and conservation network established in
                                        each state.


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Appendix I

Major Contributors to This Briefing Report






                                Bob Robinson, Assistant Director
Resources,                             Thomas Heck, Assignment Manager
Community, and                         Deborah Eichhorn, Staff Evaluator
Economic                               Curtis Groves, Operations Research Analyst
Development                            Fran Featherston, Social Science Analyst
Divisiopen, Julian King, Computer Specialist
Division,
Washington, D.C.

Seattle Regional                       Joe Gibbons, Evaluator-in-Charge
                                Will Garber, Staff Evaluator
Office Stan Stenersen, Reports Analyst





























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