Endangered Species: Despite Consultation Improvement Efforts in
the Pacific Northwest, Concerns Persist about the Process
(25-JUN-03, GAO-03-949T).
The Endangered Species Act requires all federal agencies to
consult with the Fish and Wildlife Service or the National Marine
Fisheries Service (the Services) to determine the effect that the
activities they conduct, permit, or fund may have on threatened
or endangered species. In particular, federal agencies (action
agencies) must ensure that their activities do not jeopardize the
continued existence of any listed species or adversely modify
critical habitat. After several fish species in the Pacific
Northwest were listed in the late 1990s, the Services'
consultation workload increased significantly in Idaho, Oregon,
and Washington, and the Services were unable to keep up with
requests for consultation. As a result, many proposed activities
were delayed for months or years. Even under normal workload
conditions, the consultation process can be difficult, in part
because decisions about how species will be protected must often
be made with uncertain scientific information using professional
judgment. This testimony is based on ongoing work requested by
the Chairman of the Senate Subcommittee on Fisheries, Wildlife,
and Water. It addresses (1) efforts to improve the consultation
process, by the Services and by four action agencies in Idaho,
Oregon, and Washington; and (2) concerns with the process
expressed by officials at the Services and action agencies, and
by nonfederal parties.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-03-949T
ACCNO: A07368
TITLE: Endangered Species: Despite Consultation Improvement
Efforts in the Pacific Northwest, Concerns Persist about the
Process
DATE: 06/25/2003
SUBJECT: Decision making
Endangered species
Environment evaluation
Environmental policies
Interagency relations
Program evaluation
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GAO-03-949T
Testimony Before the Subcommittee on Fisheries, Wildlife, and Water,
Committee on Environment and Public Works, United States Senate
United States General Accounting Office
GAO For Release on Delivery Expected at 9: 30 a. m. EDT Wednesday, June
25, 2003 ENDANGERED SPECIES
Despite Consultation Improvement Efforts in the Pacific Northwest,
Concerns Persist about the Process
Statement of Barry T. Hill, Director Natural Resources and Environment
GAO- 03- 949T
The Services and four action agencies in the Pacific Northwest have taken
a number of actions to improve the efficiency of the consultation process.
For example, the Services have increased their staff levels in some
offices, and the National Marine Fisheries Service has opened additional
offices to facilitate consultations at remote locations. The Services have
also increased their use of consultations that cover multiple activities
that are similar in nature, thus minimizing the need to consult on
individual activities. Another improvement, called streamlining, uses
interagency teams that work together on multiple activities; these teams
work to improve communication, reach agreement on the potential effects of
activities early in the process,
and resolve problems that arise to ensure that proposed activities will
not negatively affect listed species. In addition, the Services and the
action agencies have worked, both individually and together, to develop
and refine additional guidance and training for staff conducting
consultations.
Despite the improvement efforts, Service and action- agency officials, as
well as nonfederal parties, continue to have concerns with the
consultation process. A key problem that lengthens the consultation
process is the lack of a shared understanding between the Services and
action agencies on what constitutes a complete biological assessment.
According to Service and action- agency officials, this can lead the
Services to make multiple requests for information from the action
agencies about an activity until the Services are confident that a
biological assessment adequately addresses the effects of the proposed
activity on the species. Multiple requests for information are also
sometimes due to Service biologists* being unfamiliar with actionagency
programs, partly owing to high staff turnover. In addition, actionagency
officials noted that the Services and the action agencies attempt to
ensure that biological assessments are *bullet proof* by making them so
comprehensive that they will be immune to any legal challenges.
Actionagency officials also expressed a concern that Service and action-
agency roles are not clearly defined. For example, according to action-
agency officials, Service officials sometimes make judgments about whether
an activity should occur or how it should occur, rather than just judging
its potential effects on species. In response, Service officials commented
that the purpose of the consultation process is to discuss the potential
effects of proposed actions early in the planning process and to explore
options that will avoid jeopardy. Service and action- agency officials
also identified a lack of sufficient resources* particularly at the
Services* as a key concern, stating that staff- level increases have not
kept pace with their growing workloads. Among the nonfederal parties,
permit applicants expressed concerns about the time and expense required
for the consultation process. Environmental groups said land management
decision- making processes, such as consultation, are often closed to them
until after final decisions are made, and that the only way they can make
their voices heard is through administrative appeals and lawsuits. The
Endangered Species Act
requires all federal agencies to consult with the Fish and Wildlife
Service or the National Marine Fisheries Service (the Services) to
determine the effect that the activities they conduct, permit, or fund may
have on threatened or endangered species. In particular,
federal agencies (action agencies) must ensure that their activities do
not jeopardize the continued existence of any listed species or adversely
modify critical habitat. After several fish species in the
Pacific Northwest were listed in the late 1990s, the Services*
consultation workload increased significantly in Idaho, Oregon, and
Washington, and the Services were unable to keep up with requests for
consultation. As a result, many proposed activities were delayed for
months or years. Even under normal workload conditions, the consultation
process can be difficult, in part because decisions
about how species will be protected must often be made with uncertain
scientific information using professional judgment. This testimony is
based on ongoing work requested by the Chairman of the Senate Subcommittee
on Fisheries, Wildlife, and Water. It
addresses (1) efforts to improve the consultation process, by the Services
and by four action agencies in Idaho, Oregon, and Washington; and (2)
concerns with the process expressed by officials
at the Services and action agencies, and by nonfederal parties. www. gao.
gov/ cgi- bin/ getrpt? GAO- 03- 949T. To view the full testimony,
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- 949T, a testimony before the Subcommittee on Fisheries,
Wildlife, and Water, Senate Committee on Environment and Public Works
June 25, 2003
ENDANGERED SPECIES
Despite Consultation Improvement Efforts in the Pacific Northwest,
Concerns Persist about the Process
Page 1 GAO- 03- 949T ESA Consultations
Mr. Chairman and Members of the Subcommittee: I am pleased to be here
today to discuss preliminary results from our ongoing review of the
consultation process required by the federal Endangered Species Act,
particularly as applied in the Pacific Northwest. Under the act, before
federal agencies may conduct, permit, or fund activities in areas where
species listed as threatened or endangered may be present, the agencies
must consult with the Department of the Interior*s Fish and Wildlife
Service or the Department of Commerce*s National Marine Fisheries Service
(the Services). Such consultation is intended to allow federal agencies to
ensure that the activities are not likely to jeopardize the species*
continued existence or adversely modify their critical habitat.
Consultation has particularly significant effects in the Pacific Northwest
because numerous species there are threatened with extinction, including
the Northern spotted owl, various salmon species, and the bull trout.
Federal activities that agencies may need to consult about in the Pacific
Northwest range from operating hydroelectric dams on the Columbia River*
which provide about 60 percent of the federal electricitygenerating
capacity in the region* to harvesting timber, to dredging navigation
channels. Responsible agencies* or *action agencies** include the
Department of the Interior*s Bureaus of Land Management and Reclamation,
the Department of Agriculture*s Forest Service, and the Army Corps of
Engineers, to name a few. Typical nonfederal activities that these
agencies permit, which may also require consultation, include
grazing, timber harvesting, and mining on federal lands, and building
structures such as piers and docks on private property. Nonfederal
parties, such as private landowners, developers, or local governments,
typically conduct these permitted activities.
If an action agency determines that an activity may affect a listed
species, the agency may initiate either an informal or a formal
consultation with the appropriate Service. In an informal consultation*
which could be as simple as a brief telephone call* the Service and action
agency may agree that the activity is unlikely to negatively affect the
species and that formal consultation is not necessary. On the other hand,
if the Service or agency initially believes or finds after informal
consultation that the activity may have negative effects, the action
agency initiates formal consultation by submitting a biological assessment
on the activity and its potential effects. If negative effects appear
likely and formal consultation is required, the Service has 135 days to
formally consult and document, in a biological opinion, whether the
activity could jeopardize the species* continued
Page 2 GAO- 03- 949T ESA Consultations
existence and what actions, if any, are required to mitigate those
effects. (See app. I for a flowchart depicting the consultation process.)
Avoiding jeopardy caused by federally conducted or approved activities is
important to achieving the overall purpose of the Endangered Species Act,
which is to conserve species that are at risk of extinction.
Even under normal workload conditions, the consultation process can be
difficult, in part because decisions about how species will be protected
must often be based on uncertain scientific information and on
professional judgment. Decisions resulting from consultations are
sometimes challenged in lawsuits, and responding to the lawsuits can
increase workload and delay activities. These problems were magnified in
the late 1990s, after several fish species in the Pacific Northwest were
listed as threatened or endangered. The new listings increased the
Services* consultation workload significantly in Idaho, Washington, and
Oregon, and the Services were unable to respond quickly. As a result, many
activities that federal agencies proposed were delayed for months or
years. Action agencies and others criticized the consultations as unduly
burdensome.
Our testimony, which is based on ongoing work that you requested,
addresses (1) key efforts to improve the consultation process in the
Pacific Northwest and (2) concerns about the consultation process
identified by officials from the Services and other federal agencies, and
by nonfederal parties, including environmental advocacy groups. To gather
their views on consultations, we administered a structured questionnaire
to 61 officials with the Services and the Army Corps of Engineers, the
Bureaus of Land Management and Reclamation, and the Forest Service in
Idaho, Oregon, and Washington. We conducted 133 additional interviews
with agency officials in headquarters and field offices and with
nonfederal parties; we also visited various locations in the three states.
Prior to issuing this testimony, we shared a preliminary draft with the
agencies we reviewed and incorporated their comments as appropriate. We
conducted our work in accordance with generally accepted government
auditing
standards. Our final report, which we anticipate issuing in late August
2003, will present additional information about the adequacy of agency
databases that are used to maintain key information on individual
consultations. Our report will also provide Service and action- agency
perspectives on improvements made to the consultation process.
Efforts by the Services and action agencies to improve the consultation
process have focused on increasing the number of staff that conduct
Summary
Page 3 GAO- 03- 949T ESA Consultations
consultations, improving the efficiency of the process, and providing
additional training and guidance for consultation staff and nonfederal
parties. For example, both of the Services have increased their staff
levels in certain offices, and the National Marine Fisheries Service has
established new offices, among other things, to facilitate consultations
at remote locations. To improve efficiency, the Services have increased
their use of consultations that address multiple activities, minimizing
the need to consult on individual ones. For example, one consultation in
western Oregon covers ten types of routine activities in three national
forests and two Bureau of Land Management districts. Another improvement,
called streamlining, uses interagency teams for consultations to improve
communications among the Services and action agencies on multiple
activities, get agreement on the potential effects of an activity faster,
and help resolve problems that arise. Finally, the Services and the action
agencies have worked, both individually and together, to develop and
refine additional guidance and training for staff conducting
consultations. Interagency efforts include refresher training on the
streamlining process and development of Web sites that provide staff with
preparation instructions for, and examples of, biological assessments and
other key consultation documents.
Despite the improvement efforts, Service and action- agency officials, as
well as nonfederal parties, continue to have concerns with the
consultation process. A key problem that lengthens the consultation
process is that the Services and action agencies do not always share an
understanding of what constitutes a complete biological assessment.
According to Service and action- agency officials, this can lead to
multiple requests by the Services for information from the action agencies
about an activity until the Service is satisfied that a biological
assessment adequately assesses the effects of a proposed activity on
listed species. Multiple requests for information also sometimes stem from
Service biologists* unfamiliarity with action- agency programs, partly
owing to high staff turnover. In addition, action- agency officials noted
that the Services and the action agencies attempt to ensure that
biological assessments are *bullet proof* by making them so comprehensive
that they will be immune to any legal challenges. Action- agency officials
also expressed a concern that Service and action- agency roles are not
clearly defined. For example, according to action- agency officials,
Service officials sometimes make judgments about whether an activity
should occur or how it should occur, rather than simply judging its
potential effects on species. In response,
Service officials commented that the purpose of the consultation process
is to discuss the potential effects of proposed actions early in the
planning process and to explore options that will avoid jeopardy. Service
and
Page 4 GAO- 03- 949T ESA Consultations
action- agency officials also identified a lack of sufficient resources*
particularly at the Services* as a key concern, stating that staffing
increases have not kept pace with their growing workloads. Among the
nonfederal parties, permit applicants expressed concerns about the time
and expense required for the consultation process. For example, the
average permit processing time for 19 permits issued in 2002 for building
private docks or for similar activities on Lake Washington (near Seattle)
was about 2 years and added about $10,000 to applicants* costs.
Environmental groups said land management decision- making processes, such
as consultation, are often closed to them until after final decisions are
made, and that the only way to make their voices heard is through
administrative appeals and lawsuits.
The Endangered Species Act prohibits the *taking* of any threatened or
endangered species of animal and defines *take* as to harass, harm,
pursue, shoot, wound, kill, trap, hunt, capture, or collect, or to attempt
to engage in any such conduct. Federal agencies must comply with
prohibitions against taking species listed as threatened or endangered and
must consult with the Services to determine the effect, if any, that their
activities may have on listed species. In particular, federal agencies
must ensure that their activities do not jeopardize the continued
existence of any listed species, or destroy or adversely modify habitat
designated as critical for those species. If any proposed activities will
jeopardize a species or adversely modify its critical habitat, the
Services will identify alternatives to those activities.
The Fish and Wildlife Service and the National Marine Fisheries Service
together have responsibility for implementing the Endangered Species Act.
The Fish and Wildlife Service is responsible for the protection of
terrestrial, or land- dwelling, and freshwater animal and plant species.
Endangered or threatened terrestrial animals in the Pacific Northwest
include the Northern spotted owl, the grizzly bear, and the Canada lynx.
The Service also manages land in national wildlife refuges and, like other
land- managing agencies, must consult with its own biologists in
determining the effect of its activities on listed species. The National
Marine Fisheries Service is responsible for the protection of
oceandwelling species and anadromous species, such as salmon. 1 1
Anadromous species live part of their lives in fresh water and part in
saltwater. Background
Page 5 GAO- 03- 949T ESA Consultations
Several federal agencies manage land in the Pacific Northwest or conduct
activities there, many of which require consultation under the Endangered
Species Act. The Army Corps of Engineers (Corps) supports navigation of
the
nation*s waterways by maintaining and improving channels. In Idaho,
Oregon, and Washington, the Corps also operates 12 dams and reservoirs
that provide flood control, generate hydroelectric power,
protect fish and wildlife, and support recreation and other activities. In
addition, the Corps issues permits to parties who wish to conduct
activities in lakes, streams, and wetlands; these activities include
dredging or filling waterways, and building structures ranging from docks
and driveways to housing developments.
The Bureau of Land Management manages about 28 million acres of federal
land in Idaho, Oregon, and Washington. The agency issues permits for and
manages such activities as livestock grazing, recreation, mining, and
timber harvests; many of these activities require consultation.
The Bureau of Reclamation*s core mission is to deliver water and
hydroelectric power throughout 17 western states. In the Pacific
Northwest, it operates and maintains 28 dams and administers 54
reservoirs. Its primary activities that require consultation are dam
construction, operation, and maintenance.
The Forest Service manages about 45 million acres of national forest in
Idaho, Oregon, and Washington. The agency issues permits for, manages, and
must consult on activities such as timber harvesting; recreation;
livestock grazing; mining; environmental restoration; and rights of way
for road construction, ski areas, and access to private land.
The Services and action agencies have increased the number of staff that
conduct consultations. Specifically, the Fish and Wildlife Service
increased the number of biologists in some of its offices in order to
address their growing consultation workload. The National Marine Fisheries
Service also increased staff levels at several offices, and opened several
new field offices in 2001 to facilitate consultations at remote locations.
Previously, the geographic distance between the locations made
consultations difficult. In addition, some action agencies have found it
useful to provide funding for one or more Service biologist positions to
specifically work on, or give priority to, that action agency*s
consultations. For example, the Corps* Seattle district provides funding
for a Fish and Improvement Efforts
Have Focused on Staffing Resources, Efficiency, Guidance, and Training
Page 6 GAO- 03- 949T ESA Consultations
Wildlife Service biologist position. The district gives the Service a list
of upcoming activities, and the Corps- funded Service biologist works on
consultations for those activities.
To improve the efficiency of the consultation process, the Services have
increased their use of consultations that address multiple activities,
minimizing the need to consult on individual activities. These
multipleactivity consultations, often referred to as programmatics,
sometimes allow action agencies to approve activities that meet
predetermined criteria without additional consultation. Programmatics may
cover repetitive activities with similar effects, such as road and
recreation trail maintenance, or a variety of activities affecting a
particular area or group of species, such as forest fuels treatment,
grazing, and watershed restoration projects conducted in bull trout
habitat. Multiple- activity consultations may also cover these types of
activities in a specific region, as in three western Oregon national
forests and two Bureau of Land Management districts, where one
consultation covers ten categories of routine activities.
Another improvement effort, streamlining, is intended to reduce the time
spent on consultations by facilitating early planning, up- front
coordination, and communication between the Services and action agencies.
Under the streamlined process, officials work on interagency teams that
meet regularly to discuss upcoming action- agency activities and
review draft biological assessments. The belief is that with improved
communication, more trust will develop between the Services and action
agencies, and problems will be easier to resolve when they arise.
Accordingly, for formal consultations that go through streamlining, the
Services, the Bureau of Land Management, and the Forest Service set a goal
of reducing the time allotted from the current legal requirement of 135
days to 60 days. Streamlining is currently used for most Bureau of Land
Management and Forest Service activities in the Pacific Northwest. In
addition, the Bureau of Land Management and the Forest Service are
involved in a pilot process in some locations in Idaho and Oregon. In this
process, the action agencies have been delegated the authority to certify
that certain activities meeting pre- established criteria are unlikely to
adversely affect listed species and can therefore proceed. Both the
Services and the action agencies have provided additional training and
guidance to improve understanding of the consultation process and one
another*s roles and authority, including the following.
Page 7 GAO- 03- 949T ESA Consultations
The Services have developed refresher training on the consultation
process, have prepared guidance on how to prepare a high- quality
biological assessment, and provide continuing professional education on
evaluating the biological effects of proposed activities.
The Services, the Bureau of Land Management, and the Forest Service have
developed an interagency Web site with links to the Endangered Species Act
and its regulations and to guidance on streamlined consultation
procedures. They plan to add examples of biological assessments and other
documents as guidance for teams using streamlined procedures.
The National Marine Fisheries Service currently provides links on its
Web site to biological opinions and to a tracking system that shows the
status of consultations. The Service also plans to launch a separate Web
site this year to provide guidance to action- agency biologists and others
on preparing biological assessments.
The Army Corps of Engineers has developed Web sites to inform citizens
about the permitting and consultation processes. These Web sites include
instructions on applying for permits for activities such as pier and dock
construction.
Several action- agency officials told us that they also sometimes use site
visits to educate stakeholders (e. g., the Services, the action agency,
and interested nonfederal parties) about a proposed activity. An Army
Corps official, for example, said the Corps has taken Service biologists
out on dredges to increase the biologists* understanding of dredging
operations and their likely effect on species. In another example, a
Forest Service
biologist convened on- site meetings of all the stakeholders in a
consultation about the proposed development plan for a ski area in
Washington. These stakeholders (representatives of the Forest Service, the
Fish and Wildlife Service, the ski area, the state, and a local hunting
group) walked through the proposed development areas and discussed ways to
prevent the development from adversely affecting the species involved.
This on- site collaboration, according to the Forest Service biologist,
gained agreement by all stakeholders on how the development could avoid
adversely affecting listed species. It also may have forestalled
litigation by the state and the local hunting group, which had previously
opposed the
proposed development plan.
Page 8 GAO- 03- 949T ESA Consultations
Despite ongoing efforts to improve consultations, Service and actionagency
officials continue to have concerns about the consultation process. The
absence of shared criteria for complete biological assessments, Service
biologists* lack of knowledge about action- agency programs, and fear of
litigation were frequently mentioned by Service and action- agency
officials as significant concerns. In addition, according to some
actionagency officials, Service and action- agency roles are not clearly
defined, which leads to Service officials sometimes recommending changes
to
agencies* proposed activities beyond what action agencies think is
necessary to minimize the negative effect on species. In response, Service
officials commented that the purpose of the consultation process is to
discuss the potential effects of proposed actions early in the planning
process and to explore options that will avoid jeopardy. Service and
action- agency officials were also concerned about a lack of sufficient
resources, particularly at the Services. Among nonfederal parties,
concerns were expressed about the time and cost required for consultations
and about a perceived lack of openness and effectiveness in
the consultation process. A key problem that lengthens the consultation
process is that the Services and action agencies do not always have an
understanding of what constitutes a complete biological assessment* that
is, one that provides sufficient scientific information to determine an
activity*s effect on a species. Because of this lack of common criteria,
and because complete scientific information is rarely available for listed
species, officials often rely on their judgment and experience to
determine the likely effect of activities on species. Some Service
officials we interviewed said that they often do not receive sufficiently
detailed information from the agencies in a biological assessment about
the activity so that they can independently assess its likely effects on
the species. They therefore request additional
information and do so until they are satisfied that the assessment
adequately addresses the effects of the proposed activity on the species.
On the other hand, some action- agency officials said they believe that
the Services require much more detailed information than is necessary to
determine whether they agree with the action agency*s assessment of the
activity*s effects. Many Service and action- agency officials said that
these requests for additional information and associated discussions can
delay the consultation process and cause frustration.
Disagreements over the detail needed in biological assessments are
exacerbated because many officials perceive the consultation process as
personality- driven. Specifically, Service and action- agency officials
said Despite Improvement
Efforts, Concerns Remain about Consultations
Officials Do Not Have a Common Understanding of the Information Needed in
Biological Assessments
Page 9 GAO- 03- 949T ESA Consultations
that sometimes officials on both sides of the issue take unyielding
positions on consultations, either on behalf of the activity or the listed
species, and they waste time arguing. In these instances, the process
takes much longer to complete than when participants are able to
compromise. In addition, action- agency officials said some Service
biologists* particularly new ones* can be overly zealous in their efforts
to protect species and may be unlikely to compromise; at the same time,
action agencies do not always involve the Services early enough in
consultation,
making the process difficult. In other cases, officials told us that some
individuals that are key to the consultation process lack the
interpersonal or negotiation skills necessary to resolve conflicts that
arise in the process. One action- agency official noted, *there is no room
in the process for zealots* on either side.*
National Marine Fisheries Service officials recognize the need for better
guidance regarding the level of detail required in biological assessments
and are developing training for their biologists, along with a Web- based
template and checklist for action agencies. Service officials told us that
they believe deadlocked disagreements over biological assessments are less
common than they used to be, and when they do occur it is sometimes
because issues are not elevated to management for resolution when they
should be. Furthermore, they believe that increased staff, planning, and
field offices have helped alleviate these issues.
Service and action- agency officials agreed that Service biologists are
sometimes unfamiliar with action- agency programs and activities and that
the time required for Service biologists to learn about activities and how
they may negatively affect species can lengthen the consultation process.
High turnover among Service biologists is one factor that contributes to
their lack of familiarity with action- agency activities. In one example,
Service biologists did not understand the process of mining for gold in
streams until they were given a field demonstration. Allowing the Service
biologists to see the mining equipment in operation helped facilitate the
consultation process because the biologists did not have to ask numerous
clarifying questions to understand the activity*s potential impact.
Although site visits can help familiarize biologists with action- agency
activities, because of resource limitations, Service and action- agency
officials said they are unable to make site visits a routine part of
consultation. Service Biologists Are
Unfamiliar with ActionAgency Programs
Page 10 GAO- 03- 949T ESA Consultations
Service and action- agency officials alike cited the fear of litigation as
a significant concern that lengthens the consultation process. Since 1999,
the Services have been affected by at least 19 lawsuits involving
consultations in courts with jurisdiction in Idaho, Oregon, and
Washington. For example, according to a Forest Service official in Oregon,
at least two dozen timber projects have awaited consultation for 2 years
because a court ruled that the National Marine Fisheries Service used
insufficient scientific data to support a determination that natural
vegetation growth would adequately mitigate the effects of logging. 2 This
decision invalidated more than 20 existing biological opinions for timber
harvests, which will await formal consultation until the National Marine
Fisheries Service implements a strategy for addressing the court*s
concerns. In addition, both Services must respond to notices of lawsuits
and agreements that settle lawsuits.
According to action- agency officials, such court rulings have led Service
officials to apply the same level of scrutiny to all activities,
regardless of the level of risk they pose to listed species. Action-
agency officials believe that the Services attempt to ensure that all
biological assessments are
*bullet proof** or so comprehensive that they are impervious to legal
challenge* and this adds to the time and cost of consultation. As a
result, Service officials apply similar scrutiny to activities that are
less likely to have long- term negative impacts, such as trail maintenance
or habitat restoration, as they do to activities with much higher
potential for longterm negative effects, such as mining. Some action-
agency officials recognized that this fear of litigation similarly causes
them to put more details in their biological assessments than they
otherwise would. Furthermore, Interior officials expressed concerns that
existing litigation, and the risk of future litigation, may be interfering
with the consultation
process and diverting to litigation a disproportionate amount of the funds
intended for Endangered Species Act implementation.
According to action- agency officials, Service and action- agency roles
are not clearly defined. Some action- agency officials expressed concern
that Service biologists sometimes make judgments about whether an activity
should occur, rather than just its potential effects on species.
Actionagency officials told us they believe decisions about activities*
design
2 Pacific Coast Federation of Fishermen*s Associations v. National Marine
Fisheries Service, 265 F. 3d 1028 (9th Cir. 2001). Service and Action-
Agency
Officials Are Concerned about Litigation
Service and Action- Agency Roles in Consultations Are Not Clearly Defined
Page 11 GAO- 03- 949T ESA Consultations
should be left to the action agencies. The Department of the Interior*s
Assistant Secretary for Water and Science recently discussed this concern
in an address to Bureau of Reclamation employees. The Assistant Secretary
asserted that it is the Bureau*s responsibility to determine how its
proposed activities should be designed and the Services* responsibility to
issue biological opinions on those activities* potential impact on
species. He emphasized that the Bureau should not include components in
its proposed activities that it believes are not necessary for avoiding
negative effects to listed species, simply because the Services want those
components included. The Bureau*s Commissioner also issued a policy
statement reiterating the Assistant Secretary*s position that it is the
Bureau*s responsibility* not that of the Services* to define its proposed
activities and to provide a biological assessment that is based on the
best available science. The policy states that the Bureau should rely on
the Services to respond with a scientifically sound biological opinion*
which may include a determination that an activity will adversely affect a
listed species. In that event, Bureau and Service officials would work
together to develop acceptable measures for mitigating the activity*s
detrimental effects. In commenting on a draft of this statement, Service
officials said that the purpose of the consultation process is to discuss
the potential effects of proposed actions early in the planning process
and to explore
options that will avoid jeopardy Service and action- agency officials
identified a lack of sufficient resources* particularly at the Services*
as a key concern that limits timely completion of consultations. Service
and action- agency officials are concerned that although staff levels have
increased in recent years, staffing has not kept pace with their growing
workloads. For example, data from the Fish and Wildlife Service*s office
in Portland, Oregon, show that while the office*s budget for consultations
increased approximately 40 percent between fiscal years 1998 and 2002, the
number of consultations
for which each biologist was responsible increased about 90 percent. One
consequence of this disparity between resources and workload is that the
Services cannot always meet regulatory timeframes. Furthermore, officials
said that there is an upward trend in the types of activities that require
consultation. For example, as a result of a court ruling in the mid-
1990s, the Bureau of Land Management and the Forest Service must consult
with the Services on their land management plans. This ruling created a
substantial new workload for the agencies and the Services, and they are
still working to complete the consultations in some areas. Insufficient
Staffing
Resources Are a Key Concern
Page 12 GAO- 03- 949T ESA Consultations
Nonfederal parties wishing to conduct activities requiring consultation
because they involve federal permits or licenses also expressed concerns
about the time and cost required for the process. When nonfederal parties
apply to an action agency for a permit or license, they must go through
reviews required by the action agency for approval. These reviews can
include consultation. Action agencies either prepare (sometimes at the
applicant*s expense), or ensure that applicants have arranged for the
preparation of, a biological assessment; the agency then reviews the
biological assessment and requests additional information as needed.
According to a Service official, economic impacts and the scope of the
proposed activity are considered during consultation, in addition to
whether or not the activity will jeopardize listed species or adversely
modify critical habitat.
In one example, a private landowner waited about 3 years* including time
for Forest Service permit review and consultation- related activities* for
a permit that would allow him to cross Forest Service land to harvest his
privately owned timber stand. To cross the Forest Service land, the
landowner had to improve an old logging road and construct about half a
mile of new road, which he did himself, work valued at about $9,000; he
also reimbursed the Forest Service about $6,800 for the costs to prepare a
biological assessment for the consultation. Further, according to the
landowner, when he was finally able to harvest the timber its market value
had dropped by one- third to one- half from its anticipated value. The
Forest
Service biologist who worked on this consultation noted that it was
affected by numerous complicating factors, including a court decision
barring the Fish and Wildlife Service from issuing biological opinions on
activities affecting spotted owls and a new policy for dealing with
private landowners.
In another example, the average time for the Corps to process 19 permits
issued in 2002 for building private docks or for similar activities on
Lake Washington (near Seattle) was about 2 years. This time included the
consultation time spent by each Service, as well as the time spent by the
action agency to help the permit applicant complete a biological
assessment and meet other Corps requirements for the permit. For these
permits, consultation added about $10,000 to nonfederal parties* costs.
Officials from the Services noted that these types of delays were not
uncommon when bull trout and salmon were first listed because so many
activities, many of them in urban areas, were affected. A National Marine
Fisheries Service official stated that these listings created an
*automatic backlog* of consultations that overwhelmed them. A Fish and
Wildlife Service official also noted that the delays were at least partly
due to their Some Nonfederal Parties
Are Concerned about the Length and Cost of the Permitting Process
Page 13 GAO- 03- 949T ESA Consultations
unfamiliarity with the effects that building docks could have on bull
trout. The bull trout was the first aquatic species that they had to deal
with in the Pacific Northwest.
Environmental advocacy groups also expressed concerns with the
consultation process. Representatives of two environmental advocacy groups
said land management decision- making processes, such as consultation, are
often closed to them until after final decisions are made, and that the
only way they can make their voices heard is through
administrative appeals and lawsuits. One representative expressed concern
that the streamlining process lacks transparency and compromises the
Services* role of scrutinizing action- agency activities. Service
officials noted that the Endangered Species Act does not require public
participation or public comment in the consultation process. One
environmental group*s representative expressed concern that the Services
do not have a comprehensive view of a species* status across its range and
therefore are limited in their ability to determine the potential effects
of proposed activities. For example, the bull trout may or may not be
significantly affected by an activity in one stream, but unless the
Services know the trout*s status across its range, they cannot make
informed
decisions about how an activity will affect the species as a whole. Mr.
Chairman, this completes my prepared statement. I would be happy to
respond to any questions that you or Members of the Subcommittee may have.
For further information about this testimony, please contact me at (202)
512- 3841. Trish McClure, Jennifer Duncan, Jaelith Hall- Rivera, Cynthia
Norris, Anthony Padilla, Katherine Raheb, Jeff Rueckhaus, Rebecca Shea,
and Pamela Tumler also made key contributions to this statement.
Environmental Groups Are
Concerned that Consultations Lack Openness and Effectiveness
GAO Contacts and Staff Acknowledgments
Page 14 GAO- 03- 949T ESA Consultations
Appendix I: Endangered Species Act Consultation Process
Source: GAO analysis of data from multiple agencies. Federal agency
gathers information on a proposed activity*s potential effects on listed
species or critical habitat
Non- federal party (e. g., livestock grazer) seeking Federal permit
submits information on the proposed activity*s potential effects on listed
species or critical habitat
Does the permitting agency have enough information to assess
the activity's likely effects?
Agency accepts information No consultation
required; process ends
Consultation required, may be informal
Formal consultation required No effects
What is agency's determination
of likely effects?
Negative effects unlikely
Negative effects likely
Agency submits biological assessment to the Services
No, requests more information
No deadline to complete
Ye s
Page 15 GAO- 03- 949T ESA Consultations (360351)
Does the Service have enough information to
assess the activity's likely effects?
No, requests more information
Yes, initiates consultation
Formal Informal
Process ends with letter of concurrence
Formal consultation initiated Service concurs that negative
effects are unlikely Service determines that negative effects are likely
Service reviews biological assessment and determines if project could
jeopardize listed species or adversely modify critical habitat
Jeopardy not likely: process ends
Jeopardy likely: Service recommends alternatives to proposed project;
process ends Service issues final biological
opinion, including jeopardy determination and any requirements for
minimizing negative effects to species or habitat
Formal consultation: 135 days to complete Informal consultation: 30 days
to complete (Service policy)
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