    Endangered Species: Fish and Wildlife Service Uses Best Available
    Science to Make Listing Decisions, but Additional Guidance Needed
    for Critical Habitat Designations (29-AUG-03, GAO-03-803).

    Recent concerns about the U.S. Fish and Wildlife Service's
    (Service) endangered species listing and critical habitat
    decisions have focused on the role that "sound science" plays in
    the decision-making process--whether the Service bases its
    decisions on adequate scientific data and properly interprets
    those data. In this report, GAO assesses the extent to which (1)
    the Service's policies and practices ensure that listing and
    critical habitat decisions are based on the best available
    science and (2) external reviewers support the scientific data
    and conclusions that the Service used to make those decisions. In
    addition, GAO highlights the nature and extent that litigation is
    affecting the Service's ability to effectively manage its
    critical habitat program.
    -------------------------Indexing Terms-------------------------
    REPORTNUM:   GAO-03-803
        ACCNO:   A08263
      TITLE:     Endangered Species: Fish and Wildlife Service Uses Best
    Available Science to Make Listing Decisions, but Additional
    Guidance Needed for Critical Habitat Designations
         DATE:   08/29/2003
      SUBJECT:   Endangered species
    	     Strategic planning
    	     Wildlife conservation
    	     Wildlife management
    	     Program evaluation

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    GAO-03-803

                                           A

    Report to Congressional Requesters

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

    GAO- 03- 803

    Contents Letter 1

    Results in Brief 3 Background 5 Procedures Are in Place to Ensure That
    Listing and Critical Habitat

    Decisions Are Based on the Best Available Science 9 Peer Reviewers and
    Others Conclude that Most Listing Decisions

    Are Based on Best Available Science, but Concerns about Critical Habitat
    Decisions Remain 19 The Service Has Failed to Address Known Problems with
    the Critical

    Habitat Program 32 Conclusion 36 Recommendation for Executive Action 36
    Agency Comments 36

    Appendixes

    Appendix I: Objectives, Scope, and Methodology 38

    Appendix II: Overview of The Endangered Species Act 42 Listing Species as
    Endangered or Threatened 43 Critical Habitat 44 Recovery Plans 45
    Consultations with Federal Agencies 45 Habitat Conservation Plans 47

    Appendix III: Peer Reviewers* Responses to Listing and Critical Habitat
    Decisions for Fiscal Years 1999 through 2002 48

    Appendix IV: The Nature of Scientific Controversy Surrounding Listing and
    Critical Habitat Decisions 58 Listing 58 Critical Habitat 62

    Appendix V: GAO Contact and Staff Acknowledgments 68 GAO Contact 68 Staff
    Acknowledgments 68

    Table Table 1: Species Delisted on the Basis of New Information 26 Figures
    Figure 1: Number of Domestic Species Listed as Threatened or Endangered,
    1981 through 2002 7

    Figure 2: Number of Domestic Species with Critical Habitat, 1981 through
    2002 8 Figure 3: The Service*s Process to List Species as Threatened or

    Endangered 11 Figure 4: Peer Review Response Rates for Listing and
    Critical

    Habitat Decisions, Fiscal Years 1999 through 2002 18 Figure 5: Canada lynx
    61 Figure 6: California red- legged frog 64 Figure 7: Southwestern willow
    flycatcher 66

    This is a work of the U. S. government and is not subject to copyright
    protection in the United States. It may be reproduced and distributed in
    its entirety without further permission from GAO. However, because this
    work may contain copyrighted images or other material, permission from the
    copyright holder may be necessary if you wish to reproduce this material
    separately.

    Letter

    August 29, 2003 The Honorable Bob Goodlatte Chairman, Committee on
    Agriculture House of Representatives The Honorable Scott McInnis Chairman,
    Subcommittee on Forests and Forest Health Committee on Resources House of
    Representatives The Honorable Richard Pombo Chairman, Committee on
    Resources House of Representatives The Congress enacted the Endangered
    Species Act in 1973 to protect plant and animal species whose survival is
    in jeopardy. The U. S. Fish and Wildlife Service (Service) is responsible
    for implementing the act for freshwater and land species. 1 For many
    years, the act, its implementation, and the Service have served as
    lightning rods in the ongoing national debate concerning the tradeoffs
    between economic, social, and environmental values. The act requires the
    Service to list as endangered any species facing extinction throughout all
    or a significant portion of its range and to list as threatened any
    species likely to become endangered in the foreseeable future. The Service
    must make decisions to list species solely on the basis of the best
    available scientific and commercial data, such as biological or trade data
    obtained from commercial publications. The act also generally requires the
    Service to designate critical habitat* habitat essential to a species*
    conservation* when listing a species; the loss of habitat is often the
    principal cause of species decline. For critical

    habitat decisions, the act again requires the Service to consider the best
    available scientific data, but also requires the Service to consider the
    economic impact and other relevant impacts of designating particular areas

    as critical habitat. The Service is also required to develop a plan to
    recover 1 The Department of the Interior, which has responsibilities for
    implementing the Endangered Species Act, has delegated its responsibility
    to the U. S. Fish and Wildlife Service, which established an endangered
    species program to implement the requirements of the act. The Department
    of Commerce, which has delegated its responsibilities to the National
    Marine Fisheries Service, is responsible for implementing the act for
    anadromous

    fish and most marine species. This report does not address the National
    Marine Fisheries Service program.

    the listed species to the point that it is no longer threatened or
    endangered, an achievement marked by its removal, or delisting, from the
    list of threatened or endangered species. Recent concerns about the
    Service*s listing and critical habitat decisions

    have focused on the role that *sound science* plays in the decision-
    making process and whether the Service bases its decisions on adequate
    scientific data and properly interprets those data. Critics of the
    decisions warn that improper listing and critical habitat decisions may
    cause social and economic disruption and divert funding and attention away
    from other species truly facing extinction. In addition to concerns about
    its use of science, the Service is having difficulty managing the listing
    and critical

    habitat programs, in part because of extensive litigation. Currently, the
    Service is experiencing a significant backlog of decisions to list species
    and to designate critical habitat. The Service has identified more than
    200 species that qualify for listing but for which the listing process has
    not yet begun because of resource limitations or higher- priority actions
    being taken for other species. You asked us to assess the Service*s
    consideration and use of science in its

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

    In meeting our objectives, we examined decision documents for the 101
    listing and critical habitat decisions that the Service issued during
    fiscal years 1999 through 2002. There were 64 listing decisions and 37
    critical

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

    academic, industry, and conservation organizations and the National
    Academy of Sciences to better understand why some of the Service*s
    decisions are controversial. In this report, we define *science* as the
    collection and interpretation of biological information, such as
    identification of the species and its habitat needs. At no point in our
    review did we attempt to directly evaluate the scientific analysis on
    which the Service based its listing and critical habitat decisions. A more
    detailed description of our scope and methodology is presented in appendix
    I.

    Results in Brief The Service*s policies and practices generally ensure
    that listing and critical habitat decisions are based on the best
    available science. In making listing and critical habitat decisions, the
    Service consults with experts both inside and outside the federal
    government and considers studies or other data from federal and state
    agencies, other stakeholders, and the general public. Both proposed
    decisions and final decisions are subject to internal review

    at field, regional, and headquarters offices to help ensure that the
    professional judgment is sound and conforms to contemporary scientific
    theories and principles. In addition, the Service also has a policy to ask
    at least three independent scientific experts in a relevant field to *peer
    review* proposed decisions to list species or designate critical habitat
    to help ensure that decisions are based on the best available science.
    Reviews by outside experts and others indicate that the Service*s listing

    and critical habitat decisions are generally based on the best available
    science, but that there are concerns over the adequacy of the data used to
    support critical habitat designations. For listing decisions, peer
    reviewers overwhelmingly supported the science behind the decisions the
    Service issued between fiscal years 1999 and 2002. Additionally, during
    that same time period, the courts overturned few listing decisions because
    the Service relied on faulty or inadequate science. Further evidence that
    listing decisions are scientifically sound is provided by the fact that
    only 10 of the

    more than 1,200 domestic listed species have been delisted after new
    scientific information surfaced that indicated the original listing was
    not warranted. In contrast, while external reviews indicate that most
    critical habitat decisions are based on the best available science,
    experts and others we spoke to expressed concerns over the adequacy of the
    information available to support the designations. While peer reviewers
    generally agreed with the science supporting the Service*s critical
    habitat decisions, they often also provided suggestions for modifying the
    designations. In three decisions, peer reviewers disagreed with the
    Service*s designation of critical habitat, stating that the Service had

    insufficient information to make the decision. Although the Service has
    frequently lost legal challenges over its critical habitat designations,
    courts have overturned few of the Service*s critical habitat decisions as
    not supported by the best available science. Instead, most of the
    challenges dealt with nonscience issues, such as the Service*s failure to
    designate habitat for a listed species.

    Key court decisions have invalidated certain practices adopted by the
    Service, causing its critical habitat program to be dominated by
    litigation. In 1997, the Service lost a lawsuit challenging its practice
    of not designating

    critical habitat for many species; the Service did not designate critical
    habitat because it believes it conveys little additional protection to
    listed species. This suit led to numerous other suits, resulting in court
    orders

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

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

    most cost- effective manner. The Department of the Interior did not
    respond to our request to comment on the recommendation. Background The
    Congress enacted the Endangered Species Act in 1973 to conserve

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

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

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

     disease or predation;  inadequacy of existing regulatory mechanisms; or
     other natural or manmade factors affecting a species* continued

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

    As of June 2003, the Service had listed 1,263 species in the United States
    as threatened or endangered. This total included 517 animal species and
    746 plant species. 5 The number of species listed per year has varied

    considerably, as shown in figure 1. There are also 558 foreign species
    listed as threatened or endangered.

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

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

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

    As of June 2003, the Service was in the process of listing 36 more species
    and had identified 251 species as candidates for listing. The act also
    requires the Service to designate critical habitat for listed species.
    Critical habitat is a specific geographic area that is essential for the
    conservation of a threatened or endangered species and that may require
    special management and protection. 6 As of June 2003, 417 domestic species
    had critical habitat designated. The number of critical habitat
    designations per year has varied considerably, as shown in figure 2.
    Figure 2: Number of Domestic Species with Critical Habitat, 1981 through
    2002

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

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

    The Endangered Species Act has provisions to protect and recover species
    once they are listed. The act prohibits the *taking* of listed animal
    species by any party* federal or nonfederal. 7 *Taking* or *take* means to
    harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect
    a listed species. 8 Also, federal agencies must ensure that their
    activities, or any activities they fund, permit, or license, do not
    jeopardize the continued

    existence of a listed species or result in the destruction or adverse
    modification of its critical habitat. The act establishes a process for
    federal agencies to consult with the Service about their activities that
    may affect listed species. In addition, the act requires that the Service
    develop a recovery plan to reverse the decline of each listed species and
    ensure its long- term survival. A recovery plan may include a variety of
    methods and procedures to recover listed species, such as protective
    measures to prevent extinction or further decline, habitat acquisition and
    restoration, and other on- the- ground activities for managing and
    monitoring endangered and threatened species. To date, seven domestic
    species have been delisted due to recovery. (App. II provides additional
    information on the process used by the Service to protect listed species.)

    Procedures Are in The Endangered Species Act requires the Service to use
    the best available

    Place to Ensure That scientific data when deciding to list species or
    designate critical habitat. The *best available* standard does not
    obligate the Service to conduct

    Listing and Critical studies to obtain missing data, but it prohibits the
    Service from ignoring

    Habitat Decisions Are available data. The Service goes through an
    extensive series of procedural

    Based on the Best steps that involves public participation and review by
    outside experts to

    help ensure that it collects relevant data and uses it appropriately.
    Available Science

    Although the process alone is not sufficient to ensure the accuracy of the
    Service*s listing and critical habitat decisions, it generally ensures
    that the Service is using and considering the *best available* data. 7 16
    U. S. C. S:1538( a)( 1)( B), (C). The Endangered Species Act prohibits the
    taking of endangered, but not threatened, species. However, the act
    authorizes the Service to, by

    regulation, prohibit the taking of a threatened species. The Service has
    issued a regulation extending the take prohibitions to threatened species,
    except for those covered by a specific rule, exemption, or permit. See 50
    C. F. R. S:17.31.

    8 16 U. S. C. S:1532( 19).

    Internal Decision- Making The Service follows a rigorous process in
    listing a species as endangered or Process Helps Ensure That

    threatened, designating critical habitat, or removing a species from the
    the Service Uses Best

    endangered and threatened list. The Service*s process includes following a
    Available Science in Making rulemaking procedure, established by the
    Endangered Species Act, supported by additional procedures under Service
    regulations and Decisions

    guidance. The complete text of the proposed and final rules and related
    information (including a summary of data on which the proposal is based
    and a summary of comments received on the proposal) are published in the

    Federal Register, the government*s official publication for making public
    the regulations and legal notices issued by federal agencies. The act and
    regulations require the Service to provide an opportunity for public

    participation in the rulemaking process, notify affected states and local
    jurisdictions and invite comments from them and other interested parties,
    notify newspapers and professional journals, and hold at least one public
    hearing, if requested, within 45 days of publishing the proposal.
    Additionally, Service procedures provide for listing and critical habitat
    decisions to be reviewed internally to help ensure that the professional
    judgment that the Service*s scientists exercise when weighing and

    interpreting the collected data is sound and conforms to contemporary
    scientific theories and principles. 9

    The process to list a species begins either through a petition from an
    individual, group, or state agency or through the initiative of the
    Service (see fig. 3). 10 9 The Department of the Interior has recently
    issued a code of scientific conduct to be used

    by all Interior scientists* including the Service* to ensure that all
    research and analysis is conducted according to the highest standards of
    the scientific community.

    10 The Service uses the same process to delist or to reclassify a species
    from endangered to threatened or vice versa. Either action may be
    initiated through a petition or by the Secretary of the Interior.

    Figure 3: The Service*s Process to List Species as Threatened or
    Endangered

    When a petition is filed to list a species, the Service provides a copy of
    the petition to, and requests information from, appropriate state agencies
    and affected tribal governments. The Service uses the information that it
    receives from these parties (or that which is contained in the petition or
    otherwise readily available) to make its initial determination as to
    whether

    a species may be threatened or endangered, and if so, to proceed with data
    gathering and analysis. 11 The act requires the Service to make this
    determination generally within 90 days of receiving the petition. If the
    Service determines that it should proceed, it conducts a *status review**
    a review of all the available information on a species* to determine
    whether the species warrants protection under the act. To conduct the
    status review, the Service solicits comments and requests information from
    the general public (by publishing a notice in the Federal Register) and
    contacts affected local, state, tribal and federal agencies; interested
    conservation or industry groups; and scientific organizations or
    professionals interested in and/ or knowledgeable about the species. The
    Service may also fund field surveys, museum research, and literature
    searches in order to compile available information. Service scientists who
    conduct status reviews told us that they often work closely with experts
    from other government

    agencies, academia, and elsewhere to help gather and interpret
    information. In some instances, the Service initiates a review of a
    species without a petition, for which it conducts a candidate assessment*
    similar to a status review* to identify available information.

    Within 12 months of receiving a petition for which the Service proceeded
    with a status review, the Service must determine whether the species*
    listing is warranted. If a Service field office makes an initial
    determination

    that the listing is warranted, it prepares a proposed rule for publication
    in the Federal Register. Before the proposed rule is published, a draft
    receives considerable internal review by officials in the Service*s field,
    regional, and headquarters offices. 12 The review by officials in the
    field and

    11 The Service bases its determination on whether or not there is
    *substantial* information to proceed. Substantial information is defined
    by Service regulations as information that would lead a reasonable person
    to believe that the measure proposed in the petition may be warranted. 50
    C. F. R. S: 424.13( b).

    12 If the field office determines the petition is not warranted or is
    warranted but precluded, the Service will issue a notice in the Federal
    Register. This notice goes through a similar internal review process. A
    *warranted but precluded* finding is made when the petitioned action is
    precluded from immediate action by other, higher priority actions. The
    Service

    reevaluates warranted but precluded petitions every 12 months until either
    a proposed rule is issued or a "not warranted" finding is made.

    regional offices helps ensure the exercise of sound professional judgment.
    The field office that is responsible for the listing provides the
    appropriate regional office with the draft of the proposed rule and all
    supporting scientific information. Officials in the regional office review
    the proposed rule to ensure that scientific information supports the
    proposed rule. Regions are responsible for ensuring that the proposed rule
    is scientifically

    accurate and biologically and legally sound. Regional officials told us
    that the review is an opportunity for the region to identify information
    gaps and issues concerning how the information supports the conclusions.
    At the

    Service*s headquarters, the draft proposed rule is reviewed to ensure that
    it is consistent with other listing rules and complies with national
    policies. Either the Director of the Fish and Wildlife Service or the
    Assistant Secretary for Fish and Wildlife and Parks approves all proposed
    rules before publication. Upon publication, the public has at least 60
    days to provide comments on a

    proposed rule. The Service may extend the public comment period and/ or
    reopen it at a later date. Service officials told us that the public
    comment period is an opportunity to reach biologists, scientists,
    academicians, and advocacy groups that the Service may not have contacted
    previously. The Service also holds public hearings, if requested. At the
    end of the public comment period, the Service reevaluates all the data,
    including the comments received since the proposal was published, to
    determine whether the listing is still warranted. If not, the proposal
    will be withdrawn. The Service must publish its final decision within 12
    months of its proposal. In cases when experts disagree on the accuracy or
    sufficiency

    of the available data concerning the proposed listing, or the release of
    additional information that may affect the outcome of the petition is
    expected, the proposal may be extended 6 months beyond the normal 12-
    month time frame. In the event that the listing is warranted, the Service
    prepares a final rule, incorporating appropriate changes based on the
    information received during the comment period. Final rules are subject to
    the same internal review process as proposed rules and are approved by
    either the Director of the Fish and Wildlife Service or Assistant
    Secretary for Fish and Wildlife and Parks before being published. The
    procedures for designating critical habitat are similar to those for

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

    Officials at all levels of the agency demonstrated familiarity with the
    requirements of the review process and stated that they believe it
    provides the general guidelines necessary to ensure the best available
    data are identified and properly interpreted. Field office officials noted
    that

    proposed and final rules are challenged internally to ensure they can
    withstand public scrutiny and that while rulemakings are initiated at the
    field level, extensive review ensures that the entire agency is on board
    before anything is finalized. Scientists and other agency personnel told
    us that they use the process to test the validity of their listing and
    critical

    habitat decisions. Some officials emphasized the crucial role that the
    experience and expertise of the Service*s scientists play in ensuring that
    listing and critical habitat decisions are based on the best available
    science.

    Outside Experts Review Peer review is considered to be the most reliable
    tool to ensure that quality Proposed Rules

    science will prevail over social, economic, and political considerations
    in the development of a particular product or decision. Peer review* a
    routine component of science* can substantially enhance the quality and
    credibility of the scientific or technical basis for a decision. For
    regulatory decisions, peer review can provide for independent and expert
    analysis to

    complement the adversarial and political nature of rulemaking. While many
    federal agencies were already using peer review, the Office of Management
    and Budget (OMB) issued guidance in 2002 recommending that federal
    agencies utilize formal, independent external peer review (peer review by
    individuals outside of the agency) to ensure the quality of data and
    analytic results disseminated to the public. 13 It also recommended that
    peer reviewers be selected primarily on the basis of their technical
    expertise, that they disclose any source of bias (either prior technical
    or policy positions or sources of personal and institutional funding from
    which they may benefit), and that peer review be conducted in an open and
    rigorous manner. 14 13 67 Fed. Reg. 8452 (Feb. 22, 2002).

    14 Office of Management and Budget, Memorandum for the President*s
    Management Council, Sept. 20, 2001.

    Federal agencies have adopted a variety of peer- review practices,
    depending on the nature of the product or decision under review. As we
    reported in 1999, peer- review practices at federal agencies vary
    according to their intended use and form. 15 According to OMB*s 2002
    guidance, agencies should tailor the rigor and intensity of peer review in
    accordance with the significance of risk or management implications of the
    information

    involved. The form of peer review can range from informal consultations
    with agency colleagues not involved in the earlier stages of the project
    to formal external advisory panels, which can span several years and cost
    thousands of dollars. In addition, for each different form of peer review,
    there are multiple variations* the amount of time allocated for the
    review, the number of reviewers, and whether the review occurs internally
    or externally* all of which affect the overall time and cost required to
    conduct a review.

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

    peer reviewers to critique specific aspects of the proposed rule, such as
    the Service*s interpretation of a particular study, or they may ask
    reviewers to comment on the rule in its entirety. The Service*s peer-
    review policy generally appears to be appropriate for the

    circumstances in which it is used. Although other agencies may use more
    rigorous forms of peer review, such as convening a peer- review panel or a

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

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

    One limitation that the Service faces in getting an independent review is
    the scarcity of experts on a particular species. For example, in some
    instances, the most qualified experts to peer review a decision may have
    authored some of the studies that the Service used to support its
    decision, forcing the Service to balance expertise with independence.
    However, according to a National Academy of Sciences report that reviewed
    the Environmental Protection Agency*s use of peer review for similar
    actions, to choose an individual to peer review who is both an expert and
    independent might be impossible, or might not promote the best possible
    review. 17 In such cases, an appropriate balance of views may be sought to
    ensure that different

    interpretations on the scientific and technical merit of a decision are
    taken into consideration. Such cases should, however, be fully disclosed.
    Other organizations have developed procedures for assessing the
    independence of peer reviewers, ranging from simply requiring peer
    reviewers to disclose any potential bias, to using third parties to
    identify peer reviewers based, in

    part, on their independence. Service officials told us that they have not
    adopted a formal procedure to assess peer reviewers* independence, and the
    Service does not publicly disclose in the Federal Register potential
    conflicts or prior involvement by its peer reviewers when the Service
    publishes the final rule.

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

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

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

    18 Although the Service published 101 listing and critical habitat
    decisions during fiscal years 1999 through 2002, the decision to list as
    threatened the Lake Erie water snakes (64 Fed. Reg. 47126 (Aug. 30, 1999))
    is not included in this analysis because the comment period for

    the proposed rule opened before the Service*s peer review policy became
    effective. 19 In two additional instances, documentation is also
    unavailable to indicate how many reviewers were asked but there is
    documentation that the number of respondents was greater than two. In
    these instances, we credited the Service with having solicited at least
    three peer reviewers.

    Figure 4: Peer Review Response Rates for Listing and Critical Habitat
    Decisions, Fiscal Years 1999 through 2002

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

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

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

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

    Peer Reviewers and External reviews of listing and critical habitat
    decisions indicate that most

    Others Conclude that decisions are generally scientifically supported, but
    concerns about the

    adequacy of critical habitat determinations remain. Listing decisions are
    Most Listing Decisions

    often characterized as straightforward, requiring the Service to answer
    Are Based on Best only a *yes or no* question as to whether a species
    warrants inclusion on

    Available Science, but the threatened or endangered list. Critical habitat
    designations, on the

    other hand, are more complex and often require further information on the
    Concerns about

    species* habitat requirements and other management considerations. Peer
    Critical Habitat reviewers often expressed concerns about the specific
    areas designated as critical habitat, while other experts expressed
    concerns about the

    Decisions Remain adequacy of the information available to make the
    designation.

    Little Scientific Experts and others have found most of the Service*s
    listing decisions to be Disagreement Surrounds

    scientifically supported. Experts knowledgeable about the Endangered
    Listing Decisions

    Species Act and recent studies assessing the Service*s use of science in
    making listing decisions concur that the Service*s listing decisions are
    generally supported. Similarly, experts not affiliated with the Service
    have peer- reviewed proposals to list species and overwhelmingly supported
    the Service*s decisions. The courts have overturned few listing decisions
    on the basis of inadequate science, and the Service has delisted few
    species on the basis of new information that suggested that protection
    under the act was not originally warranted.

    Experts and Others Generally Experts, Service officials, and others
    knowledgeable about the Endangered

    Support Service Listing Species Act largely agree that most listing
    decisions have been relatively Decisions

    straightforward and scientifically supported. Experts and others we spoke
    to generally agreed that most listed species probably deserved being
    listed under the current standard for best available scientific
    information. For example, several attorneys, who represent the regulated
    community in challenges to the Service*s decisions, stated that, given the
    Service*s short

    time frames and limited resources, the science used to support most
    listing

    decisions did not present a significant problem. However, these attorneys
    and others contend that the *best available data* standard does not
    provide enough certainty that a species is threatened or endangered and
    suggest that a more stringent standard should be developed. On the other
    hand, interested parties representing a diverse set of interests raised
    concerns that Service officials at the Headquarters level are succumbing
    to political pressures to not list species despite support from regional
    and field

    scientists who believe evidence shows that listing is warranted. Service
    scientists told us they believe many listed species have low populations
    and/ or face clearly identified threats, indicating that the species are
    at risk. They said that many listing decisions have been made to protect
    species native to a specific area, with a narrow range, or for which
    substantial scientific information was already available or easy to
    collect. On the other hand, the scientists noted that collecting
    information becomes more difficult and costly when a wide- ranging species
    may be at risk. Additionally, several scientific disagreements regarding
    listing decisions

    have surfaced in recent years, mostly concerning whether the amount of
    information available at the time a decision is made suffices as a basis
    for a decision. (See app. IV for information on the nature of scientific
    controversy surrounding the Service*s decisions to list species.) Finally,
    many of the experts we spoke with had concerns about the science used to
    support other aspects of the act, such as recovery actions or
    consultations

    with federal entities on proposed actions that could potentially harm a
    listed species.

    Several studies have supported the Service*s use of science in making
    listing decisions. The Ecological Society of America* a professional
    society of ecologists representing ecological researchers in more than 60
    countries* released a study on the use of science in achieving the goals
    of

    the act that concluded that the major problem with the listing process has
    been its slowness rather than the quality of the listing decisions. 20 The
    National Research Council (NRC) reached similar conclusions in a 1995
    report, finding that many of the conflicts and disagreements over the
    Endangered Species Act do not appear to be based on scientific issues. 21
    More recently, in 2002, NRC reviewed the genetic evidence used to support

    one particular listing decision, the listing of the Gulf of Maine Atlantic
    salmon distinct population segment. 22 It concluded that Maine salmon are
    genetically distinct from other salmon, supporting the Service*s decision
    to list the species. Peer Reviewers Overwhelmingly

    The Service received 143 peer- review responses for 54 of the 63 listing
    Support the Service*s Use of

    decisions finalized between fiscal years 1999 and 2002 and no responses
    for Science in Making Listing

    the remaining 9 decisions (see app. III). In 48 of these decisions,
    reviewers Decisions

    providing comments unanimously agreed with the Service*s scientific
    conclusions or otherwise indicated support for the decision to list the
    species. In two decisions, the Service reported that one of the peer
    reviewer*s opinions was *neutral,* and the rest of the opinions were
    supportive. In two other decisions, we were unable to determine the nature
    of one of the peer reviewer*s response. Peer reviewers disagreed with the
    Service in the following two decisions:

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

    20 Carroll, R., et al., Strengthening the Use of Science in Achieving the
    Goals of the Endangered Species Act: An Assessment by the Ecological
    Society of America. Ecological Applications, 6( 1): 1- 11 (1996).

    21 National Research Council, Science and the Endangered Species Act
    (Washington D. C.: National Academy Press, 1995) 202. 22 National Research
    Council, Genetic Status of Atlantic Salmon in Maine: Interim Report from
    the Committee on Atlantic Salmon in Maine (Washington D. C.: National
    Academy Press, 2002).

    the proposed rule. The reviewer argued that the Alabama sturgeon was not a
    valid species given the fish*s morphological (i. e., physical appearance
    such as color pattern, shape, and scale patterns) and genetic evidence.
    The other four reviewers responding to the proposed rule

    supported the validity of the Alabama sturgeon as a species.  Desert
    yellowhead. One of two reviewers who provided comments on the proposed
    rule to list the desert yellowhead (a flowering plant that

    occurs in Wyoming) agreed that the species was rare and in need of
    protection, but did not agree that listing the species under the act was
    the appropriate mechanism. The other reviewer supported listing the plant.

    Courts Have Overturned Few The Service*s actions and inactions under the
    act are frequently challenged

    Listing Decisions on the Basis of in the courts. In hearing such
    challenges, courts must defer to agencies in Inadequate Science

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

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

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

    overturned listing decisions on the basis of issues related to the use of
    scientific data in the following two cases:

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

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

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

    The Service lost the following two cases because it failed to assess
    whether the species was imperiled throughout *a significant portion of its
    range.* 27  Flat- tailed horned lizard. In 2001, an environmental group
    successfully

    challenged the Service*s decision not to list the flat- tailed horned
    lizard, a small lizard found in desert lands in the southwestern United
    States. 28 In reaching its decision, the Service concluded that regardless
    of the

    threats to the lizard on private lands, large populations of the lizard
    and areas of its habitat were already protected under a conservation
    agreement on public lands and that the species was sufficiently protected
    from further threats. The court found that the Service should have
    performed an analysis to determine whether the private lands constituted
    *a significant portion of [the lizard*s] range* and, if so,

    whether the lizard was or would become extinct in that area. The court
    remanded the case to the Service for those determinations.

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

    27 The Endangered Species Act defines an endangered species and a
    threatened species as a species that is endangered or threatened
    throughout all *or a significant portion* of its range. 16 U. S. C.
    S:1532( 6), (20). In fiscal year 2003, the Service lost another listing
    case on

    similar grounds. See Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9
    (D. D. C. 2002). 28 Defenders of Wildlife v. Norton, 258 F. 3d 1136 (9 th
    Cir. 2001).

    29 Southwest Center for Biological Diversity v. Norton, 2002 WL 1733618,
    No. 98- 934 (D. D. C. 2002). 30 The range to be considered is not limited
    to areas within the United States. Defenders of Wildlife v. Norton, 258 F.
    3d at 1145.

    science. However, the decision went on to conclude that Vancouver Island
    represented a significant portion of the goshawk*s range and that the case
    should be remanded to the Service to determine whether the goshawk was
    threatened or endangered on Vancouver Island.

    The Service Has Delisted Few In addition to removing recovered or extinct
    species from the list of

    Species on the Basis of New threatened or endangered species, the Service
    can also delist a species if

    Scientific Information Showing new information becomes available to show
    that protection under the act is

    That Listing Was Not Warranted not warranted. Typically, listing a species
    generates widespread attention

    to the species, additional funding for its study, and further research
    relating to the species or its habitat. As additional information is
    gathered, the Service or interested parties can initiate a delisting
    action if they believe the species no longer qualifies for listing. The
    Service follows similar rulemaking procedures to delist a species as for
    listing.

    Since the inception of the Endangered Species Act, the Service has
    delisted few species. As of March 2003, the Service had delisted 25
    threatened and endangered domestic species of the more than 1,200 listed.
    31 Of the 25

    delistings, 10 resulted from new information* 4 because new information
    showed the species to be more widespread or abundant than believed at the
    time the species was listed, and 6 for taxonomic revisions, meaning that
    the species was found not to be unique, but was a hybrid or simply a
    population of another common species making it ineligible for listing (see
    table 1). The remaining 15 delistings resulted from recovery efforts (7),
    extinction (7), or an amendment to the act that made the species no longer
    qualify for listing protection (1). 32 31 An additional 8 foreign species
    have been delisted, 7 due to recovery and 1 due to

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

    Table 1: Species Delisted on the Basis of New Information Species name
    Description Date listed Date delisted Reason delisted

    Species more abundant or widespread

    Dismal Swamp A small, long Sept. 26, 1986 Feb. 28, 2000 Analyses completed
    after the species was listed showed southeastern

    tailed shrew found that the species is actually widely distributed and
    uses a shrew in the

    wide variety of habitat types. southeastern U. S.

    McKittrick A small herb July 13, 1982 Sept. 22, 1993 Since the time of
    listing, additional surveys have shown the pennyroyal native to the

    plant to be more widespread and abundant than previously Guadalupe known.
    Further, management actions were taken by various Mountains in federal
    agencies to provide protections to the plant. southeastern New Mexico and
    northwestern Texas

    Tumamoc A vine occurring in Apr. 29, 1986 June 18, 1993 Surveys and
    studies completed after the time of the listing globeberry south- central

    showed that the range of the species is much larger than Arizona and
    originally known and the plant was more common and extending requires less
    habitat- specific areas than was believed at the southward into

    time of listing. Mexico

    Pine barrens A frog known to

    Nov. 11, 1977 Nov. 22, 1983 Subsequent studies completed after the time of
    listing treefrog, Florida

    occur in Florida, revealed a number of new populations and a more
    population

    Alabama, New extensive distribution of the species throughout Florida and
    Jersey, and the Alabama. Carolinas

    Taxonomic revision

    Umpqua River A fish found in the

    Sept. 13, 1996 Apr. 26, 2000 An expanded review subsequent to listing
    showed that this cutthroat trout Umpqua River

    population is part of another larger population of trout that basin in
    coastal

    did not warrant listing. Oregon

    Lloyd*s hedgehog A cactus primarily

    Oct. 26, 1979 June 24, 1999 Subsequent studies completed after the time of
    listing cactus occurring in Texas

    showed evidence indicating that the cactus is not a distinct and New
    Mexico

    species but rather is a hybrid. Cuneate bidens A flowering

    Feb. 17, 1984 Feb. 6, 1996 Subsequent studies after the time of listing
    culminated in a Hawaiian plant taxonomic revision of the genus. The plant
    was determined to be no more than an outlying population of another common
    species, which is not significantly threatened. Spineless

    A cactus known to Nov. 7, 1979 Sept. 22, 1993 Subsequent to listing,
    several evaluations did not recognize hedgehog cactus occur in

    the cactus as a distinct species and the consensus of southeastern Utah
    botanists was that the cactus was only a form of another and southwestern
    type of cactus which was much more widespread, occurring Colorado

    from Utah and Colorado south into central Mexico.

    (Continued From Previous Page)

    Species name Description Date listed Date delisted Reason delisted

    Purple- spined A cactus occurring

    Oct. 11, 1979 Nov. 27, 1989 Several reviews after listing discovered that
    the hedgehog cactus in southwestern characteristics of the purple- spined
    hedgehog cactus were

    Utah simply morphological variations within the population of a more
    common species found throughout the Mojave Desert in southwestern Utah.

    Mexican duck A duck found Mar. 11, 1967 July 25, 1978 After the listing of
    the Mexican duck, the duck was throughout the determined to be a
    subspecies of the common mallard duck southwestern U. S. with a large zone
    of interbreeding between the two. and Mexico

    Additional information also indicated that the loss of habitat throughout
    its range was no longer a threat that would qualify the species for
    listing. Source: GAO analysis of U. S. Fish and Wildlife Service data.

    Concerns Remain Over the While external reviews indicate that the Service
    bases most critical habitat

    Adequacy of Scientific decisions on the best available science, concerns
    remain over the adequacy Information Used in Making

    of the information available to support the decisions. Experts and others
    Critical Habitat Decisions

    we spoke to explained that the amount of scientific information available
    on a species* habitat needs often may be limited, affecting the Service*s
    ability to adequately define the habitat area required. Experts that peer
    reviewed proposed critical habitat designations generally supported the
    Service*s decisions, though many provided additional clarifications or
    suggestions. While the courts have overturned few critical habitat
    decisions on the basis of inadequate science, scientific disagreements
    over these decisions continue.

    Experts and Others Express Experts and others knowledgeable about the
    Endangered Species Act have

    Concerns About Critical Habitat expressed concerns about the Service*s
    ability to designate critical habitat

    Decisions for some listed species given the amount of information
    available on the

    species* habitat needs. Unlike listing decisions, which are more
    straightforward* requiring the Service to answer only a *yes or no*
    question as to whether a species warrants listing* critical habitat
    decisions often require more detailed knowledge about a species* life
    history and habitat needs and call for the Service to factor in the
    species* special

    management needs in addition to the economic impacts of the designation.
    Service officials, experts, and others we spoke to agreed that the amount
    of scientific information available is limited and often affects the
    Service*s

    ability to adequately define the habitat essential to the species*
    conservation. While some interested parties stated that the Service
    designated areas too broadly and included lands unsuitable for several
    species, others said that the Service did not designate enough habitat for
    some listed species. According to Service officials, the resource and time
    constraints under which the Service*s scientists work often preclude them

    from collecting new information and, as a result, the information
    available may limit their ability to produce adequate critical habitat
    designations for some species. We found that most scientific disagreements
    surrounding recent critical habitat designations concerned whether the
    area chosen as critical habitat is sufficiently defined or whether the
    overall information used to support the designation is adequate. (See app.
    IV for information on the nature of scientific controversy surrounding the
    Service*s decisions to

    designate critical habitat for listed species.) In order to increase the
    amount of information available on which to base critical habitat
    designations, the Service and others, including the National Research
    Council, have recommended delaying designations until recovery plans are
    developed. 33 Peer Reviewers Generally

    The Service received 69 peer- review responses for 27 of the 37 critical
    Support the Service*s Critical

    habitat decisions finalized during fiscal years 1999 through 2002; it
    received Habitat Designations, but Raise no responses for 10 decisions
    (see app. III). Reviewers providing Concerns about the Areas

    comments in 17 of these decisions unanimously agreed with the Service*s
    Selected

    scientific conclusions or otherwise indicated support for the critical
    habitat designation. In six decisions, while not stating explicit
    agreement with the Service*s use of science, the reviewer did not identify
    any major inadequacies or reasons for substantially modifying the proposed
    habitat. 33 National Research Council, Science and the Endangered Species
    Act (Washington D. C.:

    National Academy Press, 1995) 71- 93.

    In another decision, the Service reported that five peer reviewers
    supported the decision and one was *neutral.* One or more peer reviewers
    disagreed with the Service*s proposed critical habitat designations for
    the remaining three decisions:

     Zapata bladderpod. The one reviewer responding to the proposed critical
    habitat designation of the Zapata bladderpod, a flowering plant that grows
    in Texas, stated that the areas selected on state and private lands were
    too small to support viable populations or the area was not

    always suitable habitat for the species. The reviewer also said it was
    premature to select those sites given the lack of information about the
    species.

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

     Newcomb*s snail. Two of the six reviewers responding to the Service*s
    proposed critical habitat determination for the Newcomb*s snail (found
    only on the island of Kauai, Hawaii) disagreed with the proposed rule* the
    other four supported it. One of the reviewers who disagreed stated that
    there was inadequate information to make a determination because

    habitat requirements for the snail were limited to generalized
    observations in the field and thus were speculative. The reviewer said the
    designation did not identify the habitat features essential to the
    conservation of the species and was premature until additional biological
    information was obtained. Similarly, the other reviewer objecting to the
    determination did so largely because of his understanding that the process
    was based on few published scientific studies, and much was still unknown
    about the species* habitat requirements.

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

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

    As with listing decisions, and due in part to the deference the courts
    grant Critical Habitat Decisions on the

    to the Service, most litigation has not directly challenged the Service*s
    use Basis of Inadequate Science

    of science in making critical habitat determinations. Based on a review of
    federal court cases decided during fiscal years 1999 through 2002, we
    identified 11 cases in which a court issued an opinion regarding the
    Service*s critical habitat decisions. Most of these 11 cases dealt with
    nonscience issues, such as the Service*s failure to designate critical
    habitat

    for a listed species. However, the courts overturned critical habitat
    decisions on the basis of issues related to the use of scientific data in
    the following two cases: 34  Rio Grande silvery minnow. In 2000, a
    federal court invalidated the

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

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

    aff*d, 294 F. 3d 1220 (10 th Cir. 2002).

    where in each reach of the river such features existed. For example, the
    court said that the Service*s statement in the rule regarding the minnow*s
    need for *sufficient flowing water* provided vague generalities that
    stated little more than what is required for any fish species. As a result
    of this court ruling, the Service is in the process of redesignating
    critical habitat for this species.

     Cactus ferruginous pygmy- owl. In 2001, a court struck down the critical
    habitat designation for the cactus ferruginous pygmy- owl because, among
    other reasons, the designation was not supported by the best available
    scientific data. 36 The final critical habitat for the pygmy- owl, a small
    bird found in the southwestern United States, consisted of over 700,000
    acres of riparian and upland habitat in

    Arizona. The court noted that the determination of critical habitat is to
    be made on the basis of the *best scientific data available* and that this
    involves identifying geographic areas *essential to the conservation of
    the species.* The court then pointed out that systematic owl surveys had
    not yet been completed over the entire potential habitat in Arizona, and
    that the Service determined critical habitat by designating areas where
    the pygmy- owls had been sighted, areas that it thought would be
    consistent with the species* known habitat, and all the land in between.
    The court also pointed out that, in addition to the areas actually
    occupied by the pygmy- owls, the Service had included areas where it
    thought they could live. The court appeared to conclude that, in order to
    include areas that were not presently occupied, the Service should have
    determined that such areas were in fact essential to the conservation of
    the species. Although the Service had already agreed to reconsider the
    economic analysis used in the critical habitat designation, the court
    concluded that a *broader reconsideration* of the critical habitat
    designation was necessary. The Service is in the process of redesignating
    critical habitat for the pygmy- owl.

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

    The Service Has Failed The Service*s critical habitat program currently
    faces a serious crisis that to Address Known

    extends well beyond the use of science in making decisions. Litigation now
    dominates the program, leading the Assistant Secretary for Fish and
    Problems with the

    Wildlife and Parks in the Department of the Interior to recently declare
    that Critical Habitat

    the system for designating critical habitat is *broken* because it
    provides Program

    little conservation benefit while consuming significant resources. A key
    court case in 1997 invalidated the Service*s position on when critical
    habitat should be designated. The Endangered Species Act generally
    requires the Service to designate critical habitat for listed species
    unless the Service determines it is *not prudent,* 37 and the Service*s
    regulations spell out that it is not prudent to designate critical habitat
    if doing so would not be *beneficial to the species.* 38 As a result,
    prior to 1997, the Service had designated critical habitat for only 113 of
    the 1,023 domestic species that it had listed. The Service reasoned that
    designating critical habitat did not benefit the species because the
    benefits that critical habitat provided duplicated those benefits provided
    by listing the species. 39 The 1997 court case invalidated the Service*s
    reasoning, ruling that the Service*s determination that it was not prudent
    to designate critical habitat for the coastal California gnatcatcher, a
    songbird unique to coastal southern California, was not justified. 40 One
    of the reasons that the Service

    concluded that it was not prudent to designate critical habitat was
    because it believed that such a designation would not appreciably benefit
    the

    37 16 U. S. C. S:1533( a)( 3). 38 50 C. F. R. S:424.12( a)( 1)( ii). The
    regulation also provides that it is not prudent when the species is
    threatened by human activity and identification of the habitat can be
    expected to increase the threat.

    39 The Service*s reasoning is based on its reading of the law, as
    implemented by its regulations. The benefit provided by a critical habitat
    designation is protection from federal agency actions* the act requires
    federal agencies to consult with the Service to ensure that any activities
    they carry out, fund, or authorize are not likely to result in the
    *destruction or adverse modification* of a critical habitat. 16 U. S. C.
    S:1536( a)( 2). The act also requires

    federal agencies to insure that their activities are not likely to
    *jeopardize the continued existence* of a listed species. Id. Service
    regulations define these two terms somewhat similarly. See 50 C. F. R.
    S:402.02. The Service reasons that virtually any federal action that would
    destroy or adversely modify a species* critical habitat would also
    jeopardize the

    species* existence. The Service thus concludes that critical habitat
    designations do not provide additional conservation benefit beyond that
    already afforded all listed species. 40 Natural Resources Defense Council
    v. United States Department of the Interior, 113 F. 3d 1121 (9 th Cir.
    1997). See also Sierra Club v. United States Fish and Wildlife Service,
    245

    F. 3d 434 (5 th Cir. 2001).

    species because most populations of gnatcatchers were found on private
    lands to which the act*s critical habitat protections would not apply. The
    court found that this reasoning improperly expanded what Congress had
    intended to be a narrow exception to designating critical habitat. The
    court concluded that the Service had disregarded *the clear congressional
    intent that the imprudence exception be a rare exception.* Since then,
    court

    orders and settlement agreements have compelled the Service to designate
    critical habitat for species for which it had previously determined that
    it was not prudent to do so. Subsequently, a 2001 court case led the
    Service to reconsider some of its critical habitat designations. 41 The
    case involved the requirement of the act that the Service consider the
    economic impact of designating a particular area as critical habitat.
    According to the act, the Service may exclude areas from critical habitat
    if it determines that the benefits of excluding the area outweigh the
    benefits of including the area as critical habitat unless

    excluding it would result in the extinction of the species. For example,
    in 1997, the Service designated critical habitat for the southwestern
    willow flycatcher, a small bird that nests in riparian areas in the
    southwestern United States. Because the Service believed that designating
    critical habitat would not result in additional restrictions on activities
    beyond those resulting from listing the species, it reasoned that there
    would be no

    significant economic impact associated with designating critical habitat
    for the flycatcher. 42 However, the court disagreed. It found that since
    the act clearly barred the Service from considering economic impacts in
    listing decisions, but required they be considered in critical habitat
    decisions, the Service was not free to ignore the economic impacts of
    listing a species when designating critical habitat for that species. The
    court held that the Service had to consider all of the economic impacts of
    a critical habitat determination, regardless of whether those impacts were
    also attributable to listing or other causes. Since this decision was
    issued, court orders and settlement agreements have prompted the Service
    to re- issue some critical habitat decisions to comply with this standard.

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

    Since these two court rulings, the Service*s critical habitat program has
    become dominated by litigation. Each critical habitat designation made
    since 1997 has resulted from a court order or a settlement agreement, and
    the Service expects that it will have to dedicate significant resources
    through fiscal year 2008 to comply with existing court orders and
    settlement agreements. The department believes that this flood of

    litigation over critical habitat designation is preventing the Service
    from taking what it deems to be higher priority activities, such as
    addressing the approximately 250 *candidate* species waiting to go through
    the listing process (listing and critical habitat activities are funded
    under the same line item in the department*s budget). Service officials
    noted that there are other court decisions that may cause additional
    problems for the program in the future.

    The Service has been aware of problems with its critical habitat program
    for a number of years. The Service noted significant problems with its
    critical habitat program in 1997, 43 and in 1999 it issued a Federal
    Register notice announcing that its system for designating critical
    habitat was not

    working and soliciting comments on its intention to develop policy or
    guidance and/ or to revise regulations or seek legislative corrections to
    clarify the role of critical habitat in conserving endangered species. 44
    In particular, the Service stated its intention to consider when critical
    habitat

    designation would provide additional protection beyond that provided by
    listing. The Service also announced its intention to streamline the
    process for designating critical habitat to be more cost- effective and in
    line with the amount of conservation benefit provided to the species. In
    particular, the Service declared that it needs to develop a much less
    labor- intensive process for describing the areas proposed for designation
    as critical habitat. The Service also stated that it can streamline and
    make more costeffective the process to conduct the economic analyses
    required to designate critical habitat and that it can more efficiently
    conduct the

    analyses required under the National Environmental Policy Act. The Service
    also noted that critical habitat litigation and related court orders

    43 In the 1997 final rule designating critical habitat for the
    southwestern willow flycatcher, the Service stated that it was unable to
    provide the level of analysis and completeness that it has in previous
    rules because of a court imposed deadline* the result of the Service*s
    previous determination that critical habitat provided little additional
    benefit to the species. Even with a minimal level of analysis and
    completeness, the Service noted that it had to

    disrupt significant work at the field office, regional, and national
    levels in order to provide the resources to complete the rule. See 62 Fed.
    Reg. 39129 (July 22, 1997). 44 See 64 Fed. Reg. 31871 (June 14, 1999).

    were consuming much of the resources devoted to listing and critical
    habitat, and delaying other activities that it considered higher priority,
    such as addressing petitions submitted by citizens, working with
    landowners on conservation projects, and completing final actions to list
    species.

    However, no additional guidance or revisions were issued, and the Service
    continues to follow the same unworkable system. The Department of the
    Interior recently echoed concerns with the Service*s critical habitat
    program and the limited conservation benefit it provides to species. In
    April 2003, the Assistant Secretary for Fish and Wildlife and Parks
    testified before Congress on the critical habitat program, stating that it
    is *broken* and in *chaos.* He noted that litigation support is consuming
    valuable resources and that complying with court orders and settlement
    agreements has sharply reduced the Service*s ability to prioritize its
    listing and critical habitat actions. Service scientists working in field
    offices expressed similar concerns to us about the critical habitat
    program, raising questions about the purpose of critical habitat and the
    designation process. An attorney in the Solicitor*s office told us that
    guidance would improve the Service*s critical habitat decisions and make
    the decisions more defensible in court in the future.

    Despite the long- standing concerns over the role and implementation of
    the critical habitat program, the Service has done little to resolve them.
    In a report issued in June 2002, we recognized the impact that litigation
    was having on the critical habitat program and recommended that the
    Service

    expedite its efforts to develop guidance on designating critical habitat
    for listed species to help reduce the influence of future litigation. 45
    Better guidance would help reduce the number of legal challenges to the
    Service*s critical habitat designations and allow the Service to better
    withstand legal challenges when they arise. While the Service agreed with
    our recommendation, it responded that work on critical habitat guidance
    had been delayed pending Service efforts to complete higher priority
    tasks, including court orders to complete listing and critical habitat
    decisions and did not commit to a schedule for issuing the guidance. An
    official with Interior*s Solicitor*s office told us that one factor
    limiting the agency*s ability to complete these tasks is the Service*s
    inability to devote significant listing and critical habitat resources to
    policy initiatives without risking

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

    contempt of court because such action would force the agency to divert
    resources away from activities required to comply with court orders.

    Conclusion The Service*s critical habitat program faces a serious crisis
    because of extensive litigation that is consuming significant program
    resources. The Service has recognized this crisis for many years but has
    done little to address it. Accordingly, in June 2002, we recommended that
    the Service

    expedite its efforts to develop guidance on designating critical habitat
    to reduce the influence of future litigation. While the Service agreed
    with our recommendation, it has done little to develop this guidance.
    Service officials complain that they are locked in a vicious cycle,
    precluded from developing the guidance for fear of being held in contempt
    of court for

    diverting resources away from activities already required by existing
    court orders. While the Service clearly faces a dilemma, it is imperative
    that it clarify the role of critical habitat and develop guidance for how
    and when it

    should be designated, and seek regulatory and/ or legislative changes that
    may be necessary to provide threatened and endangered species with the
    greatest conservation benefit in the most cost- effective manner.

    Recommendation for Because the Service*s critical habitat program faces
    serious challenges, we

    Executive Action recommend that the Secretary of the Interior require the
    Service to provide

    clear strategic direction for the critical habitat program, within a
    specified time frame, by clarifying the role of critical habitat and how
    and when it should be designated, and recommending policy/ guidance,
    regulatory, and/ or legislative changes necessary to provide the greatest
    conservation benefit to threatened and endangered species in the most
    cost- effective manner.

    Agency Comments We provided the Department of the Interior with a draft of
    this report. The department did not provide comments on the draft. As
    agreed with your offices, unless you publicly announce the contents of
    this report earlier, we plan no further distribution until 30 days from
    the

    report date. At that time, we will send copies of this report to the
    Secretary of the Interior and other interested parties. We also will make
    copies

    available to others upon request. In addition, the report will be
    available at no charge on the GAO Web site at http:// www. gao. gov.

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

    Barry T. Hill Director, Natural Resources and Environment

    Appendi Appendi xes x I

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

    Endangered Species Act. However, we acknowledge that there is not always a
    clear distinction between the interpretation of biological information and
    the policies and definitions used to interpret the act.

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

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

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

    decisions to list or designate critical habitat that were published in the

    Federal Register during fiscal years 1999 through 2002. We examined the
    Federal Register notices for the 101 decisions to determine (1) the extent
    to which the Service complied with its peer- review policy to request at
    least three peer reviewers to review each decision, (2) the number that
    reviewed each decision, and (3) whether or not the reviewer( s) supported
    the decision. In 61 of the 101 decisions, we extracted this information
    from the Federal Register. For the remaining 40 decisions, we contacted
    the 18 field offices responsible for the decisions and requested that they
    provide the peer- review documentation, including copies of the peer
    reviewers* responses. The Service provided us with the

    missing information in all but seven instances; in five of those instances
    partial information was available.

    To assess the accuracy of the information reported in the Federal Register
    notices, we requested that the Service provide documentation for the
    peerreview information, including peer reviewers* responses, for 8 of the
    61 decisions for which complete information was available in the Federal
    Register notice. We selected these 8 decisions in the following way. In

    order to minimize the burden on the Service*s field staff, we limited our
    universe to the decisions that were the responsibility of the18 field
    offices that we already intended to contact. These offices were
    responsible for 48 of the 61 decisions for which there was complete
    information in the

    Federal Register notice. We then randomly chose 1 decision from each of
    the three offices with the most decisions. Collectively these offices were
    responsible for 25 of the 48 decisions. We also randomly chose 5 of the
    remaining 23 decisions. We compared the documentation provided to us with
    the information in the corresponding Federal Register notices. We found no
    discrepancies. However, we did find minor discrepancies

    between other Federal Register notices and the documentation the Service
    provided to us. We reconciled these discrepancies. Additionally, based on
    a limited review, we found the Service*s procedures reasonable for
    ensuring that its database contains accurate information. For example, the
    Service regularly samples data recently added to the database for
    accuracy. We did not determine the extent to which any of the Service*s
    final decisions reflected the comments and opinions of the peer reviewers.
    In addition to determining whether peer reviewers supported the decision

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

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

    To determine how well the Service*s listing and critical habitat decisions
    are withstanding legal challenges to the science supporting those
    decisions, we used common legal research methods to identify federal court
    cases related to the Service*s listing and critical habitat decisions. We
    identified and reviewed 25 cases that were decided during fiscal years
    1999

    through 2002 that involved a challenge to a Service listing decision and/
    or critical habitat decision, and in which the court rendered a decision
    on the listing or critical habitat issue.

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

    Finally, to get a fuller understanding of the degree of scientific
    controversy regarding listing and critical habitat decisions, we solicited
    the opinions of experts and others and reviewed published studies. To
    illustrate the nature

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

    Federal Register. Finally, we presented the list of decisions and related
    information to officials at the Service and at the National Academy of
    Sciences for their opinions on the list of decisions and how we

    characterized them. The officials generally agreed with the information we
    presented. Additionally, in the course of our work, it became apparent
    that litigation was dominating the Service*s critical habitat program, and
    we discuss these circumstances in our report. Specifically, we describe
    how several key court cases are affecting the program. We performed our
    work from September 2002 through June 2003 in

    accordance with generally accepted government auditing standards.

    Appendi x II

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

    risk of extinction. However, before a plant or animal species is eligible
    to benefit from most of these provisions, it must first be added to the
    Federal List of Endangered and Threatened Wildlife and Plants. Once on the
    list,

    key provisions of the act, including critical habitat, recovery plans,
    consultations with federal agencies, and habitat conservation plans, are
    designed to assist in recovering the species so that it can then be
    removed from the list.

    Listing Species as Under the act, species may be listed as either
    endangered or threatened. Endangered or

    An endangered species is any species of animal or plant that is in danger
    of extinction throughout all or a significant portion of its range. A
    threatened Threatened

    species is any species of animal or plant that is likely to become
    endangered within the foreseeable future throughout all or a significant
    portion of its range. All species of plants and animals (except pest
    insects) are eligible for listing as endangered or threatened. As of June
    2003, there were a total of 1, 821 listed species; 1, 504 species on the
    endangered species list, 987 of which occur in the United States; and 317
    threatened species, 276 of which occur in the United States. 1 The
    decision to list a species must be based solely on the best available

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

    The Service may issue emergency regulations to list a species without
    complying with the normal regulatory process if it finds that an emergency
    poses a significant risk to the well- being of any species. Emergency

    regulations take effect immediately upon publication in the Federal
    Register and are effective for 240 days. The Service also maintains a list
    of candidate species. Candidate species

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

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

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

    Critical Habitat The Service is generally required to designate critical
    habitat at the time a species is listed as endangered or threatened.
    Critical habitat is the specific geographic area essential for the
    conservation of a threatened or endangered species and that may require
    special management considerations and protection. Critical habitat
    contains physical and biological habitat features such as: (1) space for
    individual and population growth and for normal behavior; (2) cover or
    shelter, food, water, air, light, minerals, or other nutritional or
    physiological requirements; (3) sites for breeding and rearing offspring;
    and (4) habitats that are protected from disturbances or are
    representative of the historic geographical and ecological distributions
    of a species. Critical habitat may also include

    areas not occupied by the species at the time of listing but that are
    essential to the conservation and recovery of the species. Unlike the
    decision to list a species as endangered or threatened, a final
    designation of critical habitat is to be made on the basis of not only the
    best scientific data available but also taking into consideration the
    economic and other effects of making the decision. If the benefits of
    excluding an area outweigh the benefits of including it, the Service may
    exclude an area from critical habitat, unless the exclusion would result
    in the extinction of the species. The Service may take up to an additional
    year after listing a species to

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

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

    Recovery Plans Once a species is listed, the act requires the Service to
    develop a recovery plan for the species. Recovery plans identify, justify,
    and schedule the research and management actions necessary to reverse the
    decline of a species and ensure its long- term survival. Recovery plans
    must be

    developed for all listed species, unless such a plan would not benefit the
    species. Although the act does not specify time frames for developing or
    implementing the recovery plan or for recovering the species, the Service
    has as a goal of developing recovery plans within 1 year and having

    approved plans within 2 1/2 years of a species* listing. The Service
    solicits comments from state and federal agencies, experts and the public
    on draft recovery plans during a formal public comment period announced in
    the

    Federal Register. The Service periodically reviews approved recovery plans
    to determine if updates or revisions are needed. As of June 2003, 1000
    species had approved recovery plans.

    Consultations with Federal agencies are required to consult with the
    Service if their actions Federal Agencies

    may affect listed species. The goal of the consultation process is to
    identify and resolve conflicts between the protection and enhancement of
    listed species and proposed federal actions. The act requires that all
    federal agencies consult with the Service to ensure that any activities
    agencies permit, fund, or conduct are not likely to jeopardize the
    continued

    existence of a listed species or adversely modify its critical habitat.
    Federal agencies may informally consult with the Service to determine
    whether their actions may affect listed species and must proceed to formal
    consultations once they determine that their actions may adversely affect
    a listed species or its habitat. The act requires a formal consultation to
    be completed in 90 days, unless the Service and the federal agency
    mutually agree to an extension, with the applicant*s consent. The Service
    is to issue

    a *biological opinion* within 45 days of the conclusion of formal
    consultation that reviews the potential effects of the proposed action on
    listed species and/ or critical habitat. The Service must base the
    biological opinion on the best available biological information. If the
    Service finds that the action would appreciably reduce the likelihood of
    the species* survival and recovery, it issues a jeopardy biological
    opinion. Jeopardy opinions include reasonable and prudent alternatives
    that define

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

    Proposed federal agency actions that have been determined to cause
    jeopardy to any listed species may receive an exemption from the act by
    the Federal Endangered Species Committee (also referred to as the *God
    Squad*). The Endangered Species Committee is comprised of seven members:
    the Secretary of Agriculture, the Secretary of the Army, Chairman of the
    Council of Economic Advisors, the Administrator of the Environmental
    Protection Agency, the Secretary of the Interior, the Administrator of the
    National Oceanic and Atmospheric Administration, and one individual from
    the affected state. An exemption is granted if at least five members of
    the Endangered Species Committee determine that, among other things, the
    action is of regional or national significance, that the benefits of the
    action clearly outweigh the benefits of conserving the species, and that
    there are no reasonable and prudent alternatives to the action. The
    Endangered Species Committee has been convened only three

    times since its creation in 1978* the Tellico Dam for the snail darter
    fish in Tennessee, the Grayrocks Dam in Wyoming for the whooping crane,
    and Bureau of Land Management (BLM) timber sales for the spotted owl in
    Oregon. Only two exemptions were granted. One was in regard to the
    Grayrocks dam and the other was to approve 13 timber sales sought by BLM
    (which was withdrawn before the completion of appeals). The Tellico dam
    application was denied but was later allowed by Congress to proceed. 2 In
    addition, three other applications were received but were subsequently

    dismissed or withdrawn before deliberations took place. 2 Energy and Water
    Development Appropriations Act of 1980, Pub. L. No. 96- 69, 93 Stat. 437,
    449 (1979).

    Habitat Conservation The act generally prohibits any person from *taking*
    an animal species

    listed as endangered. 3 *Taking* or *take* means to harass, harm, pursue,
    Plans hunt, shoot, wound, kill, trap, capture or collect a listed species,
    and under Service guidelines, includes the destruction of the species*
    habitat. However, in 1982, Congress amended the act to include a process
    whereby the Service may issue permits that allow private individuals to
    incidentally

    take listed species. Incidental take is the take of any federally listed
    species that is incidental to, but not the purpose of, otherwise lawful
    activities. Permit applicants are required to submit a habitat
    conservation plan, which includes measures the applicant will take to
    minimize and mitigate the impacts that may result from the taking. The
    Service is required to publish a notice in the Federal Register soliciting
    comments from interested parties on each application for a permit and its
    accompanying habitat conservation plan. As of April 2003, 416 habitat
    conservation plans have been approved. The act prohibits the Service from
    issuing a permit if doing so would appreciably reduce the likelihood of
    the

    survival and recovery of the species in the wild. The incidental taking of
    a listed species resulting from federal agency actions may also be allowed
    under the act and would be addressed through the consultation process. 3
    16 U. S. C. S:1538( a)( 1)( B), (C). The Endangered Species Act prohibits
    the taking of endangered, but not threatened, species. However, the act
    authorizes the Service to, by

    regulation, prohibit the taking of a threatened species. The Service has
    issued a regulation extending the take prohibitions to threatened species,
    except for those covered by a specific rule, exemption, or permit. 50 C.
    F. R. S:17.31.

    Peer Reviewers* Responses to Listing and Critical Habitat Decisions for
    Fiscal Years

    Appendi x III

    1999 through 2002 Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Listing decisions Determination of Endangered

    Oct. 6, or Threatened Status for Five 1998 Desert Milk- vetch Taxa From
    California (63 FR 53596)

    3 2 2 Determination of Endangered or

    Oct. 13, Threatened Status for Four

    1998 Southwestern California Plants from Vernal Wetlands and Clay Soils
    (63 FR 54975)

    3 1 1 Determinations of Endangered

    Oct. 13, or Threatened Status for Four

    1998 Plants (63 FR 54938)

    3 2 2 Endangered or Threatened

    Oct. 13, Status for Three Plants from 1998 the Chaparral and Scrub of
    Southwestern California (63 FR 54956)

    3 0 Endangered Status for Three

    Oct. 28, Aquatic Snails, and Threatened

    1998 Status for Three Aquatic Snails in the Mobile River Basin of Alabama
    (63 FR 57610)

    4 1 1 Determination of Threatened

    Nov. 3, Status for Virginia Sneezweed 1998 (Helenium virginicum) a Plant
    From the Shenandoah Valley of Virginia (63 FR 59239)

    3 2 2 Final Rule to List the

    Nov. 23, Arkansas River Basin

    1998 Population of the Arkansas River Shiner (Notropis girardi) as

    Threatened (63 FR 64772) 20 1 1

    Final Rule To List the Dec. 15, Topeka Shiner as Endangered

    1998 (63 FR 69008)

    3 1 1 Determination of Endangered

    Dec. 18, Status for the St. Andrew Beach 1998 Mouse (63 FR 70053)

    4 4 4 Determination of Threatened

    Feb. 8, Status for the Sacramento 1999 Splittail (64 FR 5963)

    3 0

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Determination of Endangered Mar 17,

    Status for Catesbaea

    1999

    Melanocarpa (64 FR 13116) 4 0

    Final Rule To List the Flatwoods Apr. 1, Salamander as a Threatened

    1999 Species (64 FR 15691)

    4 3 3 Threatened Status for the

    May 26, Plant Thelypodium howellii

    1999

    ssp. spectabilis (Howell*s spectacular thelypody) (64 FR 28393)

    3 2 2 Determination of Endangered

    May 26, Status for the Plant Eriogonum

    1999

    apricum (inclusive of vars. apricum and prostratum) (Ione Buckwheat) and
    Threatened Status for the Plant

    Arctostaphylos myrtifolia (64 FR 28403) 3 1 1

    Threatened Status for Lake Erie Aug. 30,

    Water Snakes (Nerodia sipedon 1999

    insularum) on the Offshore Islands of Western Lake Erie (64 FR 47126)

    a Final Endangered Status for

    Sep. 3, 10 Plant Taxa From Maui Nui, HI

    1999 (64 FR 48307)

    6 0 Final Rule to List the Devils

    Oct. 20, River Minnow as Threatened (64

    1999 FR 56596)

    5 4 4 Final Rule to List Astragalus

    Oct. 20,

    desereticus (Desert milk- vetch) 1999

    as Threatened (64 FR 56590) 3 3 3

    Determination of Threatened Oct. 20,

    Status for the Plant Helianthus

    1999

    paradoxicus (Pecos Sunflower) (64 FR 56582) 3 2 2

    Determination of Threatened Nov. 1, Status for Bull Trout in the

    1999 Coterminous United States (64 FR 58910)

    6 1 1

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Determination of Endangered Nov. 22,

    Status for the Plant 1999

    Lesquerella thamnophila (Zapata Bladderpod) (64 FR 63745)

    29 3 3 Final Endangered Status for the

    Dec. 10, Plant Fritillaria

    1999

    gentneri (Gentner*s fritillary) (64 FR 69195)

    b 4 4 Determination of Endangered

    Dec. 22, Status for Sidalcea oregana var. 1999

    calva (Wenatchee Mountains Checker- Mallow) (64 FR 71680)

    3 3 3 c Final Rule To List the Sierra Jan. 3, Nevada Distinct Population

    2000 Segment of the California Bighorn Sheep as Endangered (65 FR 20)

    3 3 3 Final Rule To List Two Cave Jan. 14, Animals From Kauai, Hawaii, as
    2000 Endangered (65 FR 2348)

    3 1 1 Endangered Status for Erigeron

    Jan. 25,

    decumbens var. decumbens 2000 (Willamette Daisy) and Fender*s Blue
    Butterfly (Icaricia icarioides

    fenderi) and Threatened Status for Lupinus sulphureus ssp. Kincaidii (65
    FR 3875)

    b 6 6 Endangered Status for the Plant

    Jan. 25,

    Plagiobothrys hirtus (Rough 2000

    Popcornflower) (65 FR 3866) b 2 2

    Determination of Endangered Jan. 26,

    Status for Two Larkspurs From 2000 Coastal Northern California (65 FR
    4156)

    3 3 3 Determination of Threatened

    Jan. 26, Status for Newcomb*s Snail 2000 From the Hawaiian Islands (65 FR
    4162)

    3 3 3 Determination of Endangered

    Feb. 1, Status for Blackburn*s Sphinx 2000 Moth from the Hawaiian Islands
    (65 FR 4770)

    3 0

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Determination of Endangered Feb. 3, Status for the Plant Yreka Phlox

    2000 from Siskiyou County, CA (65 FR 5268)

    3 1 1 Determination of Endangered

    Feb. 9, Status for the Plant Thlaspi 2000

    californicum (Kneel and Prairie Penny- Cress) From Coastal Northern
    California (65 FR 6332)

    3 0 Determination of Endangered

    Feb. 16, Status for Sidalcea keckii 2000 (Keck*s checker- mallow) From
    Fresno and Tulare Counties, CA (65 FR 7757)

    3 2 2 Final Rule to List the Riparian Feb. 23, Brush Rabbit and the 2000

    Riparian, or San Joaquin Valley, Woodrat as Endangered (65 FR 8881)

    4 2 2 Endangered Status for the

    Feb. 25, Armored Snail and Slender 2000 Campeloma (65 FR 10033)

    2 0 Threatened Status for

    Mar. 20,

    Holocarpha macradenia (Santa 2000

    Cruz tarplant) (65 FR 14898) 4 4 3 1

    Determination of Threatened Mar. 20,

    Status for Chlorogalum

    2000

    purpureum (Purple Amole), a Plant From the South Coast Ranges of
    California (65 FR 14878)

    3 2 2 Final Rule for Endangered Mar. 20, Status for Four Plants From 2000
    South Central Coastal California (65 FR 14888)

    3 2 2 Determination of Threatened

    Mar. 24, Status for the Contiguous

    2000 U. S. Distinct Population Segment of the Canada Lynx (65 FR 16052)

    6 2 2 Determination of Threatened

    Apr. 5, Status for the Northern Idaho 2000 Ground Squirrel (65 FR 17779)

    1 1 1 b

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Threatened Status for the Santa Apr. 12,

    Ana Sucker (65 FR 19686) 2000 4 2 2 Final Rule To List as

    Apr. 18, Endangered the O*ahu *Elepaio

    2000 From the Hawaiian Islands and Determination of Whether Designation of
    Critical Habitat Is Prudent (65 FR 20760)

    4 2 2 Final Rule To List the Alabama

    May 5, Sturgeon as Endangered (65 FR 2000 26438)

    5 5 41 Final Rule To List the

    Jul. 31, Short- Tailed Albatross

    2000 as Endangered in the United States (65 FR 46643)

    5 3 3 Final Rule To List the Santa

    Sep. 21, Barbara County Distinct

    2000 Population of the California Tiger Salamander as Endangered (65 FR
    57242)

    8 6 6 Endangered and Threatened

    Oct. 18, Wildlife and Plants:

    2000 Threatened Status for the Colorado Butterfly Plant (Gaura neomexicana
    ssp. coloradensis) From Southeastern Wyoming,

    Northcentral Colorado, and Extreme Western Nebraska (65 FR 62302)

    3 2 2 Final Endangered Status for a

    Nov. 17, Distinct Population Segment of

    2000 Anadromous Atlantic Salmon (Salmo salar) in the Gulf of Maine (65 FR
    69459)

    6 3 3 Final Rule to List Nine Bexar

    Dec. 26, County, Texas Invertebrate 2000 Species as Endangered (65 FR
    81419)

    9 0 Final Rule for Endangered May 21, Status for Astragalus

    2001

    pycnostachyus var. lan osissimus (Ventura marsh milk- vetch) (66 FR 27901)

    3 1 1

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Determination of Endangered Sep. 28,

    status for Astragalus

    2001

    holmgreniorum (Holmgren milk- vetch) and Astragalus ampullarioides
    (Shivwits milk- vetch) (66 FR 49560)

    4 3 3 Endangered Status for the

    Oct. 3, Ohlone Tiger Beetle (Cicindela 2001

    ohlone) (66 FR 50340) 3 3 3

    Determination of Endangered Oct. 9, Status for the Scaleshell Mussel 2001

    (66 FR 51322) 4 2 2

    Final Rule To List Silene

    Oct. 10,

    spaldingii (Spalding*s Catchfly) 2001

    as Threatened (66 FR 51597) 3 3 3

    Final Rule To List the Nov. 28,

    Vermilion Darter as Endangered 2001

    (66 FR 59367) 3 3 3

    Final Rule To List the Mississippi Dec. 4,

    Gopher Frog Distinct Population 2001

    Segment of Dusky Gopher Frog as Endangered (66 FR 62993)

    3 3 3 Endangered Status for

    Jan. 23,

    Carex lutea (Golden Sedge) (67 2002 FR 3120)

    5 0 Determination of Endangered

    Feb. 6, Status for the Washington Plant 2002

    Hackelia venusta (Showy Stickseed) (67 FR 5515)

    3 3 3 Endangered Status for the

    Mar. 6, Buena Vista Lake Shrew (Sorex 2002

    Ornatus Relictus) (67 FR 10101) 5 4 3 1 b

    Listing the Desert Yellowhead as Mar. 14, Threatened (67 FR 11442) 2002 3
    2 1 1

    Listing of the Chiricahua Jun. 13,

    Leopard Frog (Rana 2002

    chiricahuensis) (67 FR 40789) 4 4 4

    Determination of Endangered Jul. 2, Status for the Southern 2002

    California Distinct Vertebrate Population Segment of the Mountain Yellow-
    legged

    Frog (Rana muscosa)

    (67 FR 44382) 6 6 6

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Determination of Endangered Jul. 2, Status for Ambrosia pumila (San

    2002 Diego Ambrosia) from Southern California (67 FR 44372)

    3 1 1 Determination of Aug. 7, Endangered Status for the

    2002 Carson Wandering Skipper (67 FR 51116)

    4 3 2 1 Determination of Endangered

    Aug. 14, Status for the Tumbling Creek

    2002 Cavesnail (67 FR 52879)

    5 5 5 Critical habitat decisions Final Designation of Critical

    Jul. 6, Habitat for the Rio Grande 1999 Silvery Minnow (64 FR 36274)

    4 1 1 Designation of Critical Jul. 12, Habitat for the Cactus

    1999 Ferruginous Pygmy- owl (Glaucidium brasilianum cactorum) (64 FR
    37419)

    4 1 1 Designation of Critical Habitat

    Jul. 12, for the Huachuca Water Umbel 1999 (64 FR 37441)

    3 1 1 Designation of Critical Habitat

    Dec. 7, for the Pacific Coast Population 1999 of the Western Snowy Plover
    (64 FR 68507)

    b Designation of Critical Habitat

    Jan. 26, for the Woundfin and Virgin

    2000 River Chub (65 FR 4140)

    0 0 Final Designation of Critical

    Apr. 25, Habitat for the Spikedace

    2000 and the Loach Minnow (65 FR 24328)

    4 2 2 Final Determination of

    Oct. 3, Critical Habitat for the 2000 Alameda Whipsnake (Masticop his
    lateralis euryxanthus) (65 FR 58933)

    b Final Determination of Critical

    Oct. 23, Habitat for the San Diego Fairy

    2000 Shrimp (Branchinecta

    sandiegoensis) (65 FR 63438) 4 2 2

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Final Determination of Oct. 24,

    Critical Habitat for the 2000 Coastal California Gnatcatcher (65 FR 63680)

    4 0 Designation of Critical Habit

    Nov. 20, at for the Tidewater Goby 2000 (65 FR 69693)

    4 2 1 1 Final Designation of

    Dec. 22, Critical Habitat for the 2000 Plant Lesquerella Thamnophila
    (Zapata Bladderpod) (65 FR 81182)

    4 1 1 Final Designation of Critical

    Feb. 1, Habitat for the Mexican Spotted 2001 Owl (66 FR 8530)

    7 2 2 Final Determination of Critical

    Feb. 1, Habitat for Peninsular Bighorn 2001 Sheep (66 FR 8650)

    4 0 Final Determination of Critical

    Feb. 2, Habitat for the Alaska- Breeding 2001 Population of Steller*s
    Eider (66 FR 8850)

    5 2 2 Final Determination of Critical

    Feb. 6, Habitat for the Spectacled Eider 2001 (66 FR 9146)

    3 3 2 1 Final Designation of Critical

    Feb. 7, Habitat for the Arroyo Toad 2001 (66 FR 9414)

    5 2 2 Final Determination of

    Feb. 7, Critical Habitat for the Zayante 2001 Band- Winged Grasshopper (66
    FR 9219)

    3 2 2 Final Determination of

    Feb. 7, Critical Habitat for the 2000 Morro Shoulderband Snail (66 FR
    9233)

    3 2 1 1 Final Determinations of Critical

    Mar. 13, Habitat for the California Red 2001

    legged Frog (66 FR 14626) 5 2 2

    Final Designation of Critical Apr. 4, Habitat for the Arkansas

    2001 River Basin Population of the Arkansas River Shiner

    (66 FR 18002) 9 0

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Final Determination of Apr. 30,

    Critical Habitat for the Bay 2001

    Checkerspot Butterfly (Euphydryas editha bayensis)

    (66 FR 21450) 4 3 3

    Final Determination of Critical May 7, Habitat for the Great Lakes

    2001 Breeding Population of the Piping Plover (66 FR 22938)

    3 3 2 1 Final Designation of Critical

    May 30, Habitat for the Riverside Fairy

    2001 Shrimp (66 FR 29384)

    4 2 1 1 Designation of Critical Habitat

    Jul. 6, for the Spruce- fir Moss Spider 2001 (66 FR 35547)

    4 0 Final Determination of Critical

    Jul. 10, Habitat for Wintering Piping 2001 Plovers (66 FR 36138)

    5 3 3 Final Designation of Critical

    Sep. 6, Habitat for Sidalcea oregana 2001

    var. calva (Wenatchee Mountains checker- mallow) (66 FR 46536)

    3 1 1 Final Designation of Critical

    Sep. 6, Habitat for the Kootenai River 2001 Population of the White
    Sturgeon (66 FR 46548)

    4 2 2 Determination of Critical Habitat

    Dec. 10, for the Oahu Elepaio 2001 (Chasiempis san dwichensis ibidis) (66
    FR 63752)

    3 3 3 Designation of Critical Habitat

    Apr. 15, for the Quino Checkerspot

    2002 Butterfly (Euphydryas editha quino) (67 FR 18356)

    5 0 Final Designation of Critical

    Apr. 23, Habitat for the San Bernardino

    2002 Kangaroo Rat (67 FR 19812)

    9 6 5 1 Critical Habitat Designation

    May 28, for Chorizanthe robusta var. 2002

    robusta (Robust Spineflower) (67 FR 36822)

    3 3 3

    (Continued From Previous Page)

    Peer reviewers Peer reviewers* response

    Federal Register title and Unknown/

    number Date Asked Responded Agree Disagree Neutral unclear

    Designation of Critical Habitat May 29,

    for Chorizanthe pungens var. 2002

    pungens (Monterey Spineflower) (67 FR 37498)

    4 4 4 Critical Habitat Designation

    May 29, for Chorizanthe robusta var. 2002

    hartwegii (Scotts Valley Spineflower) (67 FR 37336) 3 3 3

    Designation of Critical Habitat Jul. 2, for the Carolina Heelsplitter

    2002 (67 FR 44502)

    3 0 Designation of Critical Aug. 20, Habitat for Newcomb*s Snail (67

    2002 FR 54026)

    6 6 42 Designation of Critical Habit at

    Sep. 11, for the Northern Great Plains

    2002 Breeding Population of the Piping Plover (67 FR 57638)

    9 5 5 Appalachian elktoe final critical

    Sep. 27, habitat (67 FR 61016) 2002 4 0 Source: GAO analysis of U. S. Fish
    and Wildlife Service data.

    a The Service*s peer review policy does not apply to this decision because
    its most recent comment period opened before the policy became effective.
    b Documentation unavailable.

    c In one instance, the peer reviewer did not explicitly state agreement
    with the decision, but his comments do not bring up anything to suggest
    disagreement; rather, he provided only minor clarifications to the
    proposed decision document.

    The Nature of Scientific Controversy Surrounding Listing and Critical
    Habitat

    Appendi x IV

    Decisions Based on discussions with Service officials, experts, and others
    knowledgeable about the Endangered Species Act, we found that several
    scientific disagreements over Service listing decisions have surfaced in
    recent years* mostly concerning whether the amount of information
    available at the time a decision is made suffices as a basis for a
    decision. Regarding critical habitat decisions, we found there has been
    scientific

    controversy surrounding whether the areas chosen as critical habitat is
    sufficiently defined or the overall information used to support the
    designation is adequate.

    Listing Although we found that scientific disagreements surrounding
    listing decisions are not widespread, some of the controversy in recent
    years can be categorized as *science- related.* Experts and others working
    with the

    Endangered Species Act that we spoke with identified 11 species where
    there was significant scientific controversy surrounding the decisions to
    list the species. 1 Our discussions with these individuals and a review of
    related Federal Register notices revealed that the most common scientific
    disagreements hinge on whether enough information was available to

    determine (1) whether the plants or animals under consideration qualified
    as a *species* as defined by the act, (2) the status of the species, or
    (3) the degree of threat that the species faces.

    Critics of some listing decisions argued that the Service lacked
    information to determine whether the entity in question met the definition
    of a *species.* The act defines a species as including *any subspecies of
    fish or wildlife or plants, and any distinct population segment of any
    species of vertebrate fish or wildlife which interbreeds when mature.* 2
    There is

    general agreement within the scientific community as to what constitutes a
    species and this has not been a major source of controversy in most
    listing decisions. 3 Disagreements typically arise over whether entities
    that are genetically, morphologically, or behaviorally distinct, but not
    distinct

    1 In total, these experts identified 25 species where they believed there
    was significant scientific controversy regarding listing the species. We
    limited our review to only those species that had been formally listed
    within the past 10 years; we excluded 14 species from our review either
    because the species was not listed or because it was listed prior to 1993.
    2 16 U. S. C. S:1532( 16).

    3 While there are differing definitions for the term species, it is often
    defined as groups of interbreeding natural populations that are
    reproductively isolated from other such groups.

    enough to merit the rank of species; qualify for protection as a distinct
    population segment (DPS). Under Service policy, to be identified as a DPS,
    a population segment must be both discrete and significant. 4 In order to
    be discrete, the population must be markedly separate from other
    populations

    as a consequence of physical, physiological, ecological, or behavioral
    factors. If a population segment is considered discrete, its biological
    and ecological significance will then be considered. This consideration
    would include such factors as evidence that the loss of the population
    would result in a significant gap in the range of a species.

    For example, disagreement surrounded the decision to list the population
    of the Sonoma County California tiger salamander, a large terrestrial
    salamander that is native to California. According to critics of the
    listing decision, the results of genetic testing did not show the
    salamander to be distinct, or discrete, from other populations of the
    California tiger salamander and therefore the population did not qualify
    as a DPS. The Service disagreed with the critics* interpretation of the
    data, stating that it believed the data referred to by the critics show
    the salamander to be distinct from other populations. The Service said
    that additional sampling

    and genetic work provided further substantial evidence of the genetic
    discreteness of the population. Additionally, the Service relied on the
    salamander*s geographic isolation in making a determination that the
    population qualified for protection as a DPS. Service policy also allows
    international governmental boundaries that

    delineate differences in the management of the species or its habitat to
    be used to determine if a species meets the discrete criterion. Some
    critics have argued against using international boundaries as a criterion
    to define a DPS. For example, critics of the decision to list the Arizona
    population

    segment of the cactus ferruginous pygmy- owl stated that the Service had
    no biological or regulatory authority to rely on international boundaries
    to draw a distinct population segment. The pygmy- owl is a small bird that
    occurs in the southwestern United States extending south into Mexico.

    The Service recognizes that using international boundaries as a measure of
    discreteness may introduce a nonbiological element to the recognition of a
    distinct population segment. However, in its policy, the Service
    determined

    that it is reasonable to recognize units delimited by international
    boundaries when these units coincide with differences in the management, 4
    61 Fed. Reg. 4722 (Feb. 7, 1996).

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

    In its review of science and the Endangered Species Act, the National
    Research Council found that although it may be appropriate to delineate
    population segments based on political boundaries, there are no scientific
    reasons to do so as these boundaries often do not always coincide with
    major natural geographic boundaries. 5 To provide more scientific
    objectivity in identifying distinct population segments, the Council
    recommended that the Service define a distinct population segment based
    solely on scientific grounds and limit the definition to segments of

    biological diversity containing the potential for a unique evolutionary
    future. Such segments would be determined by looking at such factors as a
    population*s morphology (or physical appearance), behavior, genetics and
    geographical separation or isolation from other populations. Service
    officials agree that the inclusion of international boundaries in
    determining whether a population segment is discrete is sometimes
    undertaken as a matter of policy rather than science. However, the Service
    believes that using international borders is appropriate and necessary to
    comply with

    congressional intent. When there are international boundaries that
    coincide with differences in the management, status, or exploitation of a
    species, as described above, the Service stated that it is appropriate to
    recognize these borders when making a listing determination.

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

    threats to the species are. For example, state agencies commenting on the
    proposal to list the Canada lynx said that the rule failed to demonstrate

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

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

    lynx and found that it warranted listing as threatened.

    Figure 5: Canada lynx

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

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

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

    habitat. Service officials told us that it is important to consider both
    the threats and the status of the species when making a listing
    determination. For example, if only a species* population numbers were
    considered, it might appear to

    be abundant. Once the threats are factored in, however, the species might
    be threatened or endangered. On the other hand, if the species numbers are
    low but the species faces no considerable threats, it may not warrant
    protection under the act.

    Critical Habitat Experts and others we spoke to identified 10 species
    where there was scientific controversy concerning the decision to
    designate critical habitat

    for them. 6 For example, one concern is whether the area chosen as
    critical habitat is sufficiently defined or the overall information used
    to support the designation is adequate. Most of the identified species are
    widespread or occur in rapidly developing areas, such as southern
    California.

    One of the major sources of disagreement is the way in which the Service
    identifies land to be included in critical habitat. The Service is
    required to designate as critical habitat those areas that it deems
    essential to a species* conservation and that may require special
    management considerations and protection. To reach this conclusion, the
    Service describes the species*

    habitat needs for conservation, or the species* *primary constituent
    elements,* such as nesting or spawning grounds, feeding sites, or areas
    with specific geologic features or soil types. The Service*s regulations
    also require the delineation of critical habitat using reference points
    and lines as found on standard topographic maps of the area. The Service
    uses written descriptions and/ or maps to outline the areas it considers
    critical habitat for a listed species. In some cases, when maps are used
    to outline the area,

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

    parts of the area that fall within the mapped boundaries do not contain
    the primary constituent elements defined by the Service. For example,
    building structures, roads, or other major structures, such as an airport,
    may fall within the mapped boundaries of critical habitat, but are not
    suitable

    habitat. The Service maintains that these areas would not be considered
    critical habitat because they do not contain the primary constituent
    elements needed by the species. The Service stated that the precise
    mapping of critical habitat boundaries is impractical or impossible
    because the legal descriptions for these precise boundaries would be
    unwieldy.

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

    Figure 6: California red- legged frog

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

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

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

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

    boundaries would be established in accordance with the 100- year flood
    zone, which would include most changes in stream flow and most seasonal
    changes.

    Figure 7: Southwestern willow flycatcher

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

    In addition to controversy surrounding the identification of specific
    areas for critical habitat, many critics of the proposed rules that we
    reviewed argued that the Service had insufficient information on which to
    base its

    determination and that the Service should not designate critical habitat
    until the habitat requirements of the species could be better defined.
    Other critics objected to the Service*s use of unpublished or otherwise
    unavailable data, stating that this type of information is inadequate to
    support critical habitat designations. Service officials said that they
    have been required to complete critical habitat decisions under short time
    frames because of court- imposed deadlines. According to Service
    officials, given the resource and time constraints under which Service
    scientists work, scientists are often unable to collect new information
    and agree that the information available may be limited. Thus, the Service
    relies on both

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

    Appendi x V

    GAO Contact and Staff Acknowledgments GAO Contact Trish McClure (202) 512-
    6318 Staff

    In addition to the individual named above, Bob Crystal, Charlie Egan,
    Acknowledgments

    Doreen Stolzenberg Feldman, Alyssa M. Hundrup, Nathan Morris, and Judy
    Pagano made key contributions to this report.

    (360260)

    a

    GAO United States General Accounting Office

    The Endangered Species Act requires the U. S. Fish and Wildlife Service to
    identify, or *list,* species that are at risk of extinction and provide
    for their protection. The act also generally requires the Service to
    designate critical habitat* habitat essential to a species* conservation*
    for each listed species. The Service must use the best available science
    when making listing and critical habitat decisions.

    The Service*s policies and practices generally ensure that listing and
    critical habitat decisions are based on the best available science. The
    Service consults with experts and considers information from federal and
    state agencies, academia, other stakeholders, and the general public.
    Decisions are subject to external *peer review* and extensive internal
    review to help ensure that decisions are based on the best available
    science and conform to contemporary scientific principles.

    External reviews indicate that the Service*s listing and critical habitat
    decisions generally have scientific support, but concerns over the
    adequacy of critical habitat determinations remain. Listing decisions are
    often characterized as straightforward, and experts, peer reviewers, and
    others generally support the science behind these decisions. Critical
    habitat designations, on the other hand, are more complex and often
    require additional scientific and nonscientific information. As a result,
    peer reviewers often expressed concern about the specific areas
    designated, while other experts expressed concerns about the adequacy of
    the data available to make designations.

    The Service*s critical habitat program has been characterized by frequent
    litigation. Specifically, the Service has lost a series of legal
    challenges that will require significant resources for the next 5 fiscal
    years to respond to court orders and settlement agreements for designating
    critical habitat. As a result, the Service is unable to focus resources on
    activities it believes provide more protection to species than designating
    critical habitat. While the Service recognizes that it has lost control of
    the program, it has yet to

    offer a remedy. Without taking proactive steps to clarify the role of
    critical habitat and how and when it should be designated, the Service
    will continue to have difficulty effectively managing the program. Recent
    concerns about the U. S. Fish and Wildlife Service*s (Service) endangered
    species

    listing and critical habitat decisions have focused on the role that
    *sound science* plays in the decision- making process* whether the Service
    bases its decisions on adequate scientific data and

    properly interprets those data. In this report, GAO assesses the extent to
    which (1) the Service*s policies and practices ensure that listing and
    critical habitat decisions are based on the best available

    science and (2) external reviewers support the scientific data and
    conclusions that the Service used to make those decisions. In addition,
    GAO highlights the nature and extent that litigation is affecting the
    Service*s ability to effectively manage its critical habitat program.

    Because the Service*s critical habitat program faces serious challenges,
    including potential legal challenges and questions regarding the role of
    critical habitat in species conservation, GAO is

    recommending that the Service provide clear strategic direction for the
    critical habitat program, in a specified time frame, by identifying the
    issues affecting the Service*s

    ability to effectively manage the program and recommending policy/
    guidance, regulatory, and/ or legislative changes necessary to address
    these issues.

    www. gao. gov/ cgi- bin/ getrpt? GAO- 03- 803. To view the full product,
    including the scope and methodology, click on the link above. For more
    information, contact Barry T. Hill at (202) 512- 3841 or hillbt@ gao. gov.
    Highlights of GAO- 03- 803 a report to

    congressional requesters

    August 2003

    ENDANGERED SPECIES

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

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

    Contents

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    Appendix I

    Appendix I Objectives, Scope, and Methodology

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    Appendix I Objectives, Scope, and Methodology

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    Appendix I Objectives, Scope, and Methodology

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    Appendix II

    Appendix II Overview of The Endangered Species Act

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    Designations

    Appendix II Overview of The Endangered Species Act

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    Designations

    Appendix II Overview of The Endangered Species Act

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    Designations

    Appendix II Overview of The Endangered Species Act

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    Designations

    Appendix II Overview of The Endangered Species Act

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    Appendix III

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

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    Designations

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

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

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    Designations

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

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

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    Designations

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

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    Designations

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

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

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

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    Appendix IV

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

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

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

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

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

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

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

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

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

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    Appendix V

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