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
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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

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

Page 1 GAO- 03- 803 Additional Guidance Needed for Critical Habitat
Designations United States General Accounting Office Washington, D. C.
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Appendix I

Appendix I Objectives, Scope, and Methodology

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Designations

Appendix I Objectives, Scope, and Methodology

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Designations

Appendix I Objectives, Scope, and Methodology

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Designations

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Designations

Appendix II

Appendix II Overview of The Endangered Species Act

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Designations

Appendix II Overview of The Endangered Species Act

Page 44 GAO- 03- 803 Additional Guidance Needed for Critical Habitat
Designations

Appendix II Overview of The Endangered Species Act

Page 45 GAO- 03- 803 Additional Guidance Needed for Critical Habitat
Designations

Appendix II Overview of The Endangered Species Act

Page 46 GAO- 03- 803 Additional Guidance Needed for Critical Habitat
Designations

Appendix II Overview of The Endangered Species Act

Page 47 GAO- 03- 803 Additional Guidance Needed for Critical Habitat
Designations

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Designations

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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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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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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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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Designations

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

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Designations

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Designations

Appendix IV

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

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Designations

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

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Designations

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

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Designations

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

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Designations

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

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Designations

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

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Designations

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

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Designations

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

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Designations

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

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Designations

Appendix V

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