    Endangered Species: Federal Agencies Have Worked to Improve the
    Consultation Process, but More Management Attention Is Needed
    (19-MAR-04, GAO-04-93).

    To protect species that are at risk for extinction, the
    Endangered Species Act requires that federal agencies consult
    with the Fish and Wildlife Service or the National Marine
    Fisheries Service (the Services) to ensure that activities they
    authorize, fund, or conduct will not jeopardize endangered
    species or adversely modify their critical habitat. While federal
    agencies recognize that consultations benefit species, some are
    concerned about the time and resources consumed. In this report,
    GAO (1) assesses the federal data on consultations, (2)
    identifies steps by federal agencies to improve the process, and
    (3) discusses lingering concerns of federal and nonfederal
    parties about the process. GAO limited this study to
    consultations with the Forest Service, the U.S. Army Corps of
    Engineers, and the Bureaus of Land Management and Reclamation in
    Idaho, Montana, Oregon, and Washington.
    -------------------------Indexing Terms-------------------------
    REPORTNUM:   GAO-04-93
        ACCNO:   A09535
      TITLE:     Endangered Species: Federal Agencies Have Worked to
    Improve the Consultation Process, but More Management Attention
    Is Needed
         DATE:   03/19/2004
      SUBJECT:   Data collection
    	     Data integrity
    	     Endangered species
    	     Federal law
    	     Interagency relations
    	     Land management
    	     Wildlife conservation
    	     Wildlife management
    	     Consultants
    	     Agency consulations
    	     Timeliness
    	     Workloads

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    GAO-04-93

    United States General Accounting Office

                         GAO Report to Congressional Requesters

    March 2004

    ENDANGERED SPECIES

    More Federal Management Attention Is Needed to Improve the Consultation Process

                                           a

    GAO-04-93

    Highlights of GAO-04-93, a report to congressional requesters

    To protect species that are at risk for extinction, the Endangered Species
    Act requires that federal agencies consult with the Fish and Wildlife
    Service or the National Marine Fisheries Service (the Services) to ensure
    that activities they authorize, fund, or conduct will not jeopardize
    endangered species or adversely modify their critical habitat. While
    federal agencies recognize that consultations benefit species, some are
    concerned about the time and resources consumed. In this report, GAO (1)
    assesses the federal data on consultations, (2) identifies steps by
    federal agencies to improve the process, and (3) discusses lingering
    concerns of federal and nonfederal parties about the process. GAO limited
    this study to consultations with the Forest Service, the U.S. Army Corps
    of Engineers, and the Bureaus of Land Management and Reclamation in Idaho,
    Montana, Oregon, and Washington.

    Because many concerns about the consultation process center on its
    timeliness, GAO recommends that the Services improve the data about the
    time and effort to complete the process. GAO further recommends that the
    Services and other federal agencies work together to clarify the process
    and evaluate improvement efforts. In commenting on a draft of this report,
    the agencies generally concurred with our findings and recommendations.

    www.gao.gov/cgi-bin/getrpt?GAO-04-93.

    To view the full product, including the scope and methodology, click on
    the link above. For more information, contact Barry Hill at (202) 512-3841
    or hillbt@gao.gov.

    March 2004

    ENDANGERED SPECIES

    More Federal Management Attention Is Needed to Improve the Consultation Process

    The data available on consultations and their timeliness varied between
    the Services, but neither agency's databases captured all the elements
    needed to reliably determine the length of the process. Data from the
    National Marine Fisheries Service and the Fish and Wildlife Service's
    Portland field office (the Service's other five offices did not have
    comparably reliable data) show that about 40 and 30 percent of their
    nearly 1,220 and 330 consultations, respectively, exceeded established
    time frames (for consultations completed during fiscal years 2001 through
    2003). However, these data do not include the significant time and effort
    sometimes spent discussing a project before consultation officially began.
    As a result, the Services cannot discern the level of effort devoted to
    Endangered Species Act consultations.

    Federal agencies have taken several steps to make the consultation process
    smoother and more efficient. Specifically, agencies took steps to
    facilitate collaboration, reduce workload, and improve the consistency and
    transparency of the process. While many officials praised these efforts,
    it is unclear whether the efforts are achieving their intended performance
    improvements, for they have not been comprehensively evaluated.

    Despite the improvement efforts, federal officials and nonfederal parties
    still have concerns about the consultation process. Workload has been a
    persistent concern for the Services and other agencies despite staff
    increases in recent years. Another major concern is that the Services and
    agencies sometimes disagree about the extent to which consultation is
    necessary. Some agency officials believe that the Services require more
    than is necessary under the Endangered Species Act, while officials at the
    Services contend that they are simply fulfilling their responsibilities.
    Nonfederal parties also have concerns. Parties seeking to conduct
    activities that are authorized by a federal agency are concerned about the
    time and resources expended to comply with the process. Environmental
    advocates are concerned that the process may not effectively protect
    species.

    Agencies Must Balance the Use of Natural Resources with the Protection of
    Species

    Contents

      Letter

    Results in Brief
    Background
    Completeness of Data Maintained on Consultations Varied between

    the Services but Did Not Capture the Entire Process Improvement Efforts
    Have Focused on Collaboration, Workload, and Information Sharing, but
    Their Effectiveness Is Unclear Federal Concerns about the Consultation
    Process Center on Workload and Process Requirements Nonfederal Parties'
    Concerns Depended on Their Expectations of

    the Consultation Process Conclusions Recommendations for Executive Action
    Agency Comments and Our Evaluation

    1 3 6

    12

    19

    39

    54 58 59 60

    Appendixes

    Appendix I:

    Appendix II:

    Appendix III:

    Appendix IV:

    Appendix V: Appendix VI:

    Objectives, Scope, and Methodology
    Comments from the Department of the Interior

    GAO Comments

    Comments from the Department of the Army

    GAO Comment

    Comments from the National Oceanic and Atmospheric Administration

    GAO Comments

    Comments from the Forest Service

    GAO Comments

    GAO Contact and Staff Acknowledgments

    GAO Contact
    Staff Acknowledgments

                                           63

                                         69 82

                                         86 91

    92 97

    98 105

    107 107 107

    Figures Figure 1: Agencies Must Balance the Use of Natural Resources with

    the Protection of Species 9

    Figure 2: Columbia River Basin 10

    Figure 3: Workers Install Electric Fish Barrier Fabric on Canal

    Diversion Structure 12 Figure 4: NMFS Timeliness for Formal and Informal
    Consultations 15

    Contents

    Figure 5: FWS Portland Office Timeliness for Formal and Informal
    Consultations 16 Figure 6: Streamlined Consultation Process Seeks to
    Bypass the Iterative Cycle of Information Requests 22 Figure 7: Site Visit
    to Culvert Replacement Project on Forest Service Land 28 Figure 8: FWS
    Portland Office Streamlined Formal Consultations 31 Figure 9: FWS Portland
    Office Nonstreamlined Formal Consultations 32 Figure 10: FWS Portland
    Office Streamlined Informal Consultations 33 Figure 11: FWS Portland
    Office Nonstreamlined Informal

    Consultations 34 Figure 12: NMFS Streamlined Formal Consultations 35
    Figure 13: NMFS Nonstreamlined Formal Consultations 36 Figure 14: NMFS
    Streamlined Informal Consultations 37 Figure 15: NMFS Nonstreamlined
    Informal Consultations 38 Figure 16: Replacement of Creosote-Treated Wood
    Pilings with

    Steel Pilings 45 Figure 17: Numerous Docks and Piers Line the Shoreline of
    Lake Washington 47 Figure 18: Caving Streambed along a Railway Posed a
    Safety Hazard 49

    Abbreviations

    BLM Bureau of Land Management
    FWS U.S. Fish and Wildlife Service
    NMFS National Marine Fisheries Service
    NOAA National Oceanic and Atmospheric Administration

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

    A

    United States General Accounting Office Washington, D.C. 20548

    March 19, 2004

    The Honorable Michael Crapo Chairman, Subcommittee on Fisheries, Wildlife,
    and Water Committee on Environment and Public Works United States Senate

    The Honorable Max Baucus United States Senate

    More than 80 species listed as threatened or endangered under the
    Endangered Species Act make their home in the vast waterways and millions
    of acres of federally managed lands in the northwestern United States.
    Federal agencies are directed by the act to utilize their authorities to
    conserve such species. In addition, species and habitat must be protected
    against adverse effects of federal activities, such as operating
    hydroelectric dams, thinning vegetation to prevent wildfires, grazing
    livestock, dredging waterways, and constructing or maintaining docks and
    piers. Deciding how best to protect threatened and endangered species, and
    assessing the extent to which federal activities should be altered or
    restricted, has taken time and energy to work through and has generated
    considerable controversy and frustration.

    Before authorizing, funding, or carrying out activities, federal agencies
    must determine whether these activities might affect a listed species or
    habitat identified as critical to its survival. If effects are likely, the
    agencies must consult with the U.S. Fish and Wildlife Service or the
    National Marine Fisheries Service-collectively referred to as the
    Services-to ensure that the activities will not jeopardize a species'
    continued existence or adversely modify its designated critical habitat.
    To initiate the consultation process, an agency submits a biological
    assessment or similar document to the Services that describes the proposed
    activity and its likely effects on listed species and their habitat.
    Consultation usually ends with the Services issuing their own assessments
    of the likely effects, including any recommendations or requirements to
    mitigate these effects. Although there are set time frames for completing
    consultations, federal agencies and the Services often discuss proposed
    activities' designs, effects, mitigation, documentation, or other matters
    in "preconsultation" sessions that occur before these time frames begin.
    In this report, when we say the "entire consultation process," we include
    preconsultation.

    From 1997 through 2000, 25 species were listed for protection under the
    Endangered Species Act in the northwestern United States, and frustration
    levels with the entire consultation process increased. These newly listed
    species included bull trout, several species of salmon, and other animals
    that inhabit large geographic ranges. With the new species listings, the
    consultation workload expanded beyond what the Services could handle in a
    timely manner. As a result, many proposed activities were delayed-some for
    months, others for years-because of the requirement to consult. The
    Services were criticized for these delays. Officials with the Services
    acknowledged these delays and attributed them to a lack of resources to
    address the expanded workload and the learning curve associated with
    dealing with newly listed species; however, the officials noted that the
    process is essential in protecting species.

    As requested, in this report we (1) assess the federal data available on
    consultations and determine the number completed and their timeliness for
    fiscal years 1998 through 2003; (2) identify steps taken by the Services
    and other federal agencies to improve the consultation process; and (3)
    discuss concerns of federal officials and nonfederal parties about the
    process. As you requested, we limited our review to the U.S. Fish and
    Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), the
    U.S. Army Corps of Engineers, the Bureau of Land Management, the Bureau of
    Reclamation, and the Forest Service (the latter four agencies are often
    referred to as "action agencies") and to consultations conducted in Idaho,
    Montana, Oregon, and Washington. We obtained electronic data on
    consultations from the Services and tested the reliability of the data. We
    also administered-via telephone or in person-a comprehensive survey to a
    nonprobability sample1 of 66 officials in the Services and action agencies
    in the four states, and we conducted open-ended interviews with 143
    officials. Our survey and interviews elicited officials' perceptions about
    consultations based on their experiences since the late 1990s. We also
    interviewed 44 nonfederal parties, including applicants-parties seeking
    federal authorization or funds to conduct an activity subject to
    consultation-and representatives of environmental advocacy and industry
    groups. We conducted our work in accordance with generally accepted
    government auditing standards. (See app. I for details on the scope and
    methodology of our review.)

    1Results from nonprobability samples cannot be used to make inferences
    about a population because, in a nonprobability sample, some elements of
    the population being studied have no chance or an unknown chance of being
    selected as part of the sample.

    Results in Brief	The data available on consultations completed and their
    timeliness for fiscal years 1998 through 2003 varied between the Services,
    but neither agency's databases captured all the elements of the entire
    consultation process needed to reliably determine the timeliness of
    consultations that occurred in the four states we reviewed during this
    period. NMFS implemented a regional electronic database in January 2001
    that tracks key elements of the consultation process for all of its field
    offices that conduct consultations in the four states. We obtained data
    from this system from January 2001 through fiscal year 2003. Before this
    time, NMFS did not maintain electronic data that included dates necessary
    for determining timeliness. FWS implemented an electronic database only
    recently-in March 2003-for Idaho, Oregon, and Washington, but not Montana.
    Before then, most FWS field offices either did not track consultations
    data electronically or did not include key elements in their databases
    such as the date on which a consultation was initiated. Consequently, we
    were able to obtain sufficiently reliable electronic data comparable to
    that from NMFS from only one FWS field office-Portland, Oregon-for fiscal
    years 2001 through 2003. (Of the six FWS field offices in the four states
    we reviewed, Portland accounted for approximately 20 percent of all
    consultations completed in fiscal year 2002.) Based on data from NMFS'
    regional system and FWS' Portland field office, the Services conducted
    almost 1,550 consultations during fiscal years 2001 through 2003 with the
    four action agencies in Idaho, Montana, Oregon, and Washington. While most
    of these 1,550 consultations were completed within established time
    frames, about 40 percent of the consultations exceeded established time
    frames, in some cases by more than a year. However, these time frames do
    not capture the sometimes significant amount of preconsultation time spent
    discussing a project before the consultation is considered to have
    officially begun. Some officials with the Services and action agencies
    said that time spent in preconsultation can be valuable by resulting in
    projects that have fewer effects on species and habitat. The Services have
    just begun to capture data on actions taken during preconsultation but the
    Services do not identify the level of resources expended or routinely
    assess how much time is spent in preconsultation. Without complete and
    reliable data on the entire consultation process, federal managers and
    congressional decision makers cannot have an accurate picture of how long
    the process takes to complete, how much it costs, and whether resources
    are adequate to meet workload demands. In addition, the Services cannot
    confirm or deny complaints about the lengthiness of the entire
    consultation process or know where the most significant problems arise.

    The Services and action agencies have taken steps, in three general
    categories, to make the consultation process smoother and more efficient,
    although the effectiveness of these efforts is unclear. First, the
    Services and action agencies have taken steps to facilitate collaboration
    between staff at the Services and action agencies so that disagreements
    can be resolved before they slow down the consultation process. Second,
    the Services and action agencies have developed approaches to reduce the
    consultation workload, such as including multiple related activities in a
    single consultation. And third, the Services and action agencies have
    taken steps to increase the consistency and transparency of the
    consultation process, such as providing interagency training courses and
    posting guidance and information on agency Web sites. Although many
    officials praised these various efforts for helping to reduce workload,
    promoting better working relationships, and protecting species better, in
    some cases, it is difficult to ascertain their effectiveness because the
    Services have not comprehensively evaluated them. While the Services and
    agencies have conducted some analyses of how the new processes are working
    and what problems have occurred, the Services and agencies have not
    assessed whether the processes reduce workload and the time to complete
    the entire consultation process. Given resource constraints, it is
    imperative that resources invested in process changes be justified by
    gains in process efficiency while maintaining or enhancing effectiveness.

    Despite efforts to improve the consultation process, officials with the
    Services and action agencies still have concerns centering on two key
    issues. First, officials at the Services and action agencies are concerned
    about workload. While staff levels have increased in recent years, those
    increases have been outpaced by increases in the number and complexity of
    consultations. Second, officials at the Services and action agencies
    sometimes disagree about the extent to which consultation is necessary.
    Many officials recognized that the consultation process benefits species.
    However, some action agency officials said they feel pressured by the
    Services-and by the fear of litigation-to seek consultation, regardless of
    the likely effects of an activity on listed species, including in
    situations where they feel consultation is unnecessary. In addition,
    action agency officials said the Services sometimes require detailed
    documentation for activities that are unlikely to adversely affect listed
    species or that will benefit the species in the long term, activities for
    which these officials believe less detail should suffice. The officials
    said that detailed documentation of such activities causes the
    consultation process to take longer than it should. For their part,
    officials at the Services said that the need to consult and the level of
    documentation are dictated by the

    Endangered Species Act, its implementing regulations, the Administrative
    Procedure Act, and the outcomes of court decisions. They believe they are
    appropriately fulfilling their consultation responsibilities to protect
    species, including clearly documenting and explaining the logic supporting
    their decisions. The time and effort required to do so, however, adds to
    an already heavy consultation workload.

    Nonfederal parties' concerns depended on their expectations of the
    process. Nonfederal parties wanting permits to conduct activities in
    federally managed areas told us that consultation adds inordinately to the
    time and cost of the permitting process. Before the additional species
    listings in the late 1990s, the permitting process for activities such as
    constructing or modifying private docks on Lake Washington generally took
    only 2 or 3 months and averaged about 5 percent of construction costs,
    according to a Lake Washington homeowners' representative. Now that
    consultation is conducted as a part of the permitting process, this
    representative said that permitting costs have increased to about 33
    percent of construction costs. Furthermore, the average processing time
    for 19 permits issued for such activities in 2002 was about 2 years.
    Conversely, environmental advocates expressed concern over the Services'
    ability to fulfill their legal obligation to effectively protect species
    because of a lack of resources and a limited understanding of the status
    of species across their ranges. For example, some advocates said that the
    Services do not have sufficient information on species' conditions to be
    able to accurately determine whether federal activities may jeopardize
    species. Finally, applicants and environmental advocates alike were
    concerned that the process lacks transparency. Some applicants said they
    found the process confusing; both applicants and environmental advocates
    said they were frustrated by not having a voice in decisions made in the
    process.

    We are making recommendations to the Secretary of the Interior and the
    Under Secretary of Commerce for Oceans and Atmosphere to improve the
    information used to manage the consultation process. We are also
    recommending that the Secretaries of the Interior and Defense, the Under
    Secretary of Commerce for Oceans and Atmosphere, and the Chief of the
    Forest Service work together to improve the transparency and consistency
    of the consultation process. These recommendations include reaching
    agreement on the amount of specificity needed in biological assessments
    and on the requirements of the process.

    The Departments of the Army and the Interior, the National Oceanic and
    Atmospheric Administration (NOAA), and the Forest Service provided

    comments on a draft of this report and generally concurred with our
    findings and recommendations. The agencies also provided overall comments
    and technical clarifications in some areas in this report. We have
    addressed these comments and clarifications where appropriate. The
    agencies' comment letters and our responses are presented in appendixes II
    through V.

    Background	The purpose of the Endangered Species Act is to conserve
    threatened and endangered species and the ecosystems upon which they
    depend. Under the act, the U.S. Fish and Wildlife Service is responsible
    for protecting terrestrial, or land-dwelling, and freshwater animal and
    plant species; the National Marine Fisheries Service is responsible for
    protecting oceandwelling species and anadromous species, such as salmon.2
    The act prohibits, without the appropriate exemption, the "taking" of any
    threatened or endangered species of fish or wildlife and defines "take" as
    to harass, harm, pursue, shoot, wound, kill, trap, hunt, capture, or
    collect, or to attempt any such conduct. Federal agencies must comply with
    prohibitions against taking species that are listed as threatened or
    endangered and must consult with the Services to 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. However, "taking" a species that is incidental to the purpose of
    a federal action and does not cause jeopardy or adverse modification may
    be permitted and, in practice, often is. Thus, the consultation process
    allows some activities to take place that may involve the incidental take
    of listed species, and helps federal agencies avoid adversely affecting
    listed species and designated critical habitat. Federal agencies are also
    directed by the Endangered Species Act to utilize their authorities to
    conserve threatened and endangered species.

    When a federal agency determines that an activity it intends to authorize,
    fund, or carry out may affect a listed species, the agency may initiate
    either an informal or a formal consultation with FWS or NMFS.3 Informal
    consultation occurs when the agency has determined that an activity may

    2Anadromous species live part of their lives in freshwater and part in
    saltwater.

    3If a federal agency determines that a proposed activity will have no
    effect on listed species (e.g., if no listed species or critical habitat
    exist in the area), then consultation is not required.

    affect but is not likely to adversely affect listed species or critical
    habitat. If the Services agree, typically by issuing a letter of
    concurrence with the agency's determination, then the agency may proceed
    with the activity without further consultation. Although there is no
    regulatory deadline for completing an informal consultation, each
    Service's policy is to do so within 30 days of receiving a complete
    biological assessment or similar document. This assessment describes,
    among other things, the proposed activity and its likely effects on any
    listed species or habitat that may be present in the area of the proposed
    activity.

    On the other hand, if an action agency initially determines that an
    activity is likely to adversely affect a species, the action agency is
    required to initiate formal consultation by submitting a biological
    assessment or similar document.4 The Services have up to 135 days (with
    the option for the Services and action agencies to agree to extensions) to
    conduct the consultation and document, in a biological opinion, whether
    the activity is likely to jeopardize the species' continued existence or
    adversely modify its designated critical habitat and what actions, if any,
    are required to mitigate that impact.5,6 (Such "jeopardy opinions" are not
    common; in fiscal year 2003, for example, the Services issued only one
    biological opinion that identified proposed activities as potentially
    jeopardizing threatened and endangered species in the four states included
    in our review.) The Services may postpone the start of the 135-day time
    frame until they have sufficient information from the action agency on
    which to base their opinions. This is also true for the 30-day time frame
    for informal consultations.

    In the northwestern United States, the consultation process is a prominent
    part of federal land management and federally authorized or funded
    activities because of the region's combination of large areas of federal
    land and significant numbers of listed species. Endangered or threatened

    4The Services may also request formal consultation if they disagree with
    an action agency's determination that an activity is not likely to
    adversely affect listed species.

    5Required actions are intended to mitigate the activity's impact by
    minimizing the extent of incidental take.

    6The 135-day limit results from the combination of two time limits-the
    Endangered Species Act requires consultations to be completed within 90
    days, and the implementing regulations require biological opinions to be
    delivered within 45 days after consultation has been completed. 16 U.S.C.
    S: 1536(b)(1)(A) and 50 C.F.R. S: 402.14(e), respectively. Since, in
    practice, preparation of the biological opinion is considered part of the
    consultation process, we will be referring to the 135 days as the time for
    completing the consultation process.

    species in this region include the northern spotted owl, grizzly bear,
    Canada lynx, bull trout, and various salmon species, or "runs." Following
    are four of the many federal agencies that carry out activities in the
    Northwest that may require consultation under the Endangered Species Act.7

    o 	The U.S. Army Corps of Engineers (Corps) supports navigation of the
    nation's waterways by maintaining and improving channels. Also, in Idaho,
    Montana, Oregon, and Washington, the Corps operates about a dozen
    multipurpose 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 for the discharge
    of dredge or fill material into U.S. waters; such discharges may occur in
    connection with dredging or building docks and other structures.

    o 	The Bureau of Land Management (BLM) manages about 36 million acres of
    federal land in Idaho, Montana, Oregon, and Washington. The agency manages
    and issues permits for activities such as livestock grazing, recreation,
    mining, and timber harvesting.

    o 	The Bureau of Reclamation delivers water and hydroelectric power
    throughout 17 western states. In the Northwest, it operates and maintains
    28 dams and administers 54 reservoirs.

    o 	The Forest Service manages about 62 million acres of national forest in
    Idaho, Montana, Oregon, and Washington. The agency issues permits for and
    manages 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.

    Balancing species' needs with natural resource uses-both of which are
    among these federal agencies' missions-can be difficult, as activities can
    vary widely in their effects on listed species (see fig. 1).8

    7FWS manages land in national wildlife refuges and, like other
    land-managing agencies, must consult with its own biologists-and with NMFS
    biologists, if appropriate-in determining the effect of its management
    activities on listed species. Similarly, when NMFS' activities might
    affect a listed species, NMFS must consult with its own biologists (and
    with FWS biologists, if appropriate) about the activities' likely effects.

    8Many other federal agencies may need to consult on effects to species.
    The agencies include the Departments of Defense, Energy, and
    Transportation, and the Environmental Protection Agency and the Federal
    Energy Regulatory Commission.

    Figure 1: Agencies Must Balance the Use of Natural Resources with the
    Protection of Species

    Sources: GAO, Nova Development Corporation, U.S. Army Corps of Engineers.

    The consultation workload for these agencies in the northwestern United
    States has increased dramatically since the late 1990s, largely as a
    result of the many species added to the list of species protected under
    the Endangered Species Act. The number of protected species increased more
    than 60 percent in Idaho, Montana, Oregon, and Washington. Several of
    these species have habitats that cover large areas of the Northwest. For
    example, in 1998 the Fish and Wildlife Service listed the bull trout,
    which occurs in major river basins across the four states, including the
    Columbia and Klamath basins, as well as in coastal areas such as Puget
    Sound in Washington. In 1999, the National Marine Fisheries Service listed
    nine subspecies of salmon and steelhead that occur primarily in these
    river basins in Oregon and Washington. Figure 2 shows the far reach of
    just the Columbia River Basin.

    Figure 2: Columbia River Basin

    Source: U.S. Army Corps of Engineers.

    Any activity occurring in or near these waterways and their smaller
    tributaries may require consultation. Consequently, federal agencies are
    consulting on many more activities than were subject to consultation
    before the 1998 and 1999 fish listings in order to protect listed species
    and their designated critical habitats.

    Although actions taken by nonfederal parties may be subject to the
    consultation process, their direct involvement in the process varies from
    none to substantial. For some parties, such as individuals who apply for
    permits to graze livestock on federal lands, the consultation process may
    be invisible because the federal agency goes through consultation before
    it issues the permit. For other parties, such as individuals who apply for
    permits to construct private boat docks or corporations that apply for
    permits to harvest timber, the process is not only visible, but often
    requires their participation. In these cases, the individual or corporate
    permit applicant generally takes on the responsibility of preparing the
    biological assessment needed to initiate consultation.

    Activities can vary widely in their effects on listed species, although
    relatively few are found to potentially jeopardize a species' continued
    existence. For example, U.S. Army Corps of Engineers projects that may
    require consultation range from issuing permits for construction or
    modification of private docks to dredging operations in harbors and
    rivers. Similarly, Forest Service projects can range from trail
    maintenance to timber harvesting, and "decommissioning" or destruction of
    roads. Obviously, these projects vary in their complexity and the possible
    severity of their effects on species and their habitats. However,
    identifying the type and extent of effects on species often remains a
    difficult task for many of these activities because, as we reported in an
    August 2003 report, only limited information is frequently available on
    species' ranges, biologies, and habitat needs.9

    Mitigative actions that agencies or nonfederal parties may include in
    their projects in order to minimize impacts to species and their habitats
    also vary widely. For example, limitations may be placed on the time of
    year when a project can be conducted. In addition, mitigation may entail
    altering the methods used for conducting a project, such as leaving buffer
    zones around known nesting areas undisturbed. Fish ladders and fish
    barriers are other common mitigation measures employed to protect fish
    from the harmful effects of dams and other structures (see fig. 3).

    9U.S. General Accounting Office, 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
    (Washington, D.C.: Aug. 29, 2003).

    Figure 3: Workers Install Electric Fish Barrier Fabric on Canal Diversion
                                       Structure

    The data available on consultations completed from fiscal years 1998
    through 2003 varied between the Services, but neither of the Services'
    databases captured the entire consultation process. (Throughout this
    report, these data should be considered in the context of their associated
    error rates as explained in app. I.) The most comparable data we were able
    to obtain for the Services were for fiscal years 2001 through 2003 and
    included consultations for all NMFS offices in the four states and for
    FWS' Portland field office. These data showed that the Services completed
    about 1,550 consultations, about 60 percent of which were completed on
    time. The remainder exceeded established time frames by intervals ranging
    from a few days to more than a year. However, our timeliness analysis
    underestimated the length of time it actually took to complete the entire
    consultation process because, in part, the Services' data did not include
    the sometimes significant amount of time that the Services and action
    agencies spent in preconsultation discussions.

    Completeness of Data Maintained on Consultations Varied between the
    Services but Did Not Capture the Entire Process

    Services Differed in the Data They Maintained on Consultations

    NMFS and FWS differed in the completeness of data available on
    consultations. NMFS has a regional database that includes all
    consultations conducted by NMFS offices in Idaho, Oregon, and
    Washington;10 this database contains the two dates needed to calculate the
    timeliness of consultations (i.e., their compliance with established
    completion time frames). These two dates are the date the consultation was
    initiated and the date it was completed. We obtained NMFS electronic data
    on consultations for most of fiscal years 2001 through 2003.11 Before
    2001, most NMFS field offices did not maintain readily available
    electronic data or did not consistently capture key dates needed to
    measure timeliness, such as the date on which a consultation was
    initiated. FWS implemented a three-state database in March 2003 for Idaho,
    Oregon, and Washington; before then, only its Portland field office
    maintained comparably reliable electronic data for fiscal years 2001
    through 2003.12 Therefore, we obtained FWS data for fiscal years 2001
    through 2003 for only the Portland field office. Of the six FWS offices in
    the four states we reviewed, the Portland office accounted for
    approximately 20 percent of all consultations completed in fiscal year
    2002. We reported on similar data management issues in January 2001 about
    FWS' field office in Carlsbad, California.13

    Based on NMFS regional data and FWS Portland field office data, the
    Services completed almost 1,550 formal and informal consultations during
    fiscal years 2001 through 2003 with the four action agencies in Idaho,
    Montana, Oregon, and Washington. NMFS data accounted for more than 1,200
    of the consultations; about 80 percent were informal, and 70 percent of
    all the NMFS consultations were conducted with the U.S. Army Corps of
    Engineers. Similarly, the majority of FWS Portland consultations were
    informal (more than 65 percent). For the total number of the Portland
    office's consultations, more than 30 percent were conducted with each of
    three agencies-the Forest Service, BLM, and the Corps. The Bureau of

    10NMFS has no offices in Montana.

    11Because the NMFS database was implemented in January 2001, we did not
    obtain data for the first quarter of fiscal year 2001.

    12FWS' Portland field office has maintained electronic data needed to
    measure timeliness since 1996.

    13U.S. General Accounting Office, Fish And Wildlife Service: Challenges to
    Managing the Carlsbad, California, Field Office's Endangered Species
    Workload, GAO-01-203 (Washington, D.C.: Jan. 31, 2001).

    Reclamation accounted for the least number of consultations-23 and 4 with
    NMFS and FWS, respectively.

    Nearly Forty Percent of the Consultations Exceeded Time Frames

    Our timeliness analysis revealed that nearly 40 percent of the 1,548
    consultations completed by the Services exceeded established time frames.
    For consultations completed during fiscal years 2001 through 2003, NMFS
    exceeded time frames 41 percent of the time, and FWS Portland exceeded
    time frames 31 percent of the time. Both Services missed established time
    frames, most often for informal consultations, which by policy are to be
    completed within 30 days. Most of the late informal consultations were
    completed within 60 days, although a small percentage of informal
    consultations (9 percent for FWS Portland and 16 percent for NMFS) were
    more than 90 days late. Overall, timeliness was better for formal
    consultations, which are to be completed within 135 days. NMFS completed
    75 percent of its formal consultations on time, while FWS Portland
    completed 86 percent on time. During this period, both Services improved
    their timeliness on informal consultations, which account for most of
    their workloads. On formal consultations, in contrast, NMFS' timeliness
    worsened over the 3 years, while FWS Portland's improved. We did not find
    any obvious commonalities among the late consultations-they addressed
    various kinds of activities including livestock grazing, noxious weed
    control, and road use. Figures 4 and 5 show NMFS and FWS Portland
    timeliness data for formal and informal consultations over the 3 years.

    Figure 4: NMFS Timeliness for Formal and Informal Consultations

    Percent

    38 98 97 205 367 414

    100

    90

    80

    70

    60

    50

    40

    30

    20

    10

    0 2001 2002 2003 2001 2002 2003 Fiscal year Formal consultations - total
    233 Informal consultations - total 986

    More than 90 days late

    31-90 days late

    1-30 days late

    On time

    Source: GAO analysis of agency data.

    Note: Fiscal year 2001 data are only for the period January 1 through
    September 30, 2001.

    Figure 5: FWS Portland Office Timeliness for Formal and Informal
    Consultations Percent

    33 5524 85 8250 100

    90

    80

    70

    60

    50

    40

    30

    20

    10

    0

    2001 2002 2003 2001 2002 2003 Fiscal year

    Formal consultations - total 112 Informal consultations - total 217

    percent more than 90 days late percent 31-90 days late percent 1-30 days
    late percent on time Source: GAO analysis of agency data.

    According to officials at the Services, some consultations we identified
    as exceeding deadlines may have had agreed upon extensions that either
    were not reflected in their data systems or were identifiable in the
    systems only through review of individual consultation records. For
    example, the Services and action agencies may agree to extend time frames
    if a relevant study is nearing completion that would significantly inform
    the consultation process, or if an action agency decides to wait to
    consult on an individual project in order to combine it with consultation
    on future projects. In addition, NMFS officials said that in some cases it
    is not clear what discretion a federal agency has to make project
    modifications, for example, and this can result in consultation delays.
    FWS and Forest Service officials told us that there may be many valid
    reasons for the Services and action agencies to mutually agree to longer
    time frames, and that some delays occur at the request of the action
    agency. The inability to easily identify such extensions, however, does
    not allow the Services to provide explanations on their timeliness without
    manually reviewing administrative records for individual consultations. If
    such information were included and easily identifiable, the Services' data
    systems would more accurately reflect timeliness. In addition, some
    officials at the Services and action agencies said that for some proposed
    projects they expect consultation to take a long time because the
    projects, and/or determining the status of and potential effects to
    protected species, are either extremely complex or controversial.

    Available Data Did Not Capture the Entire Consultation Process

    For fiscal years 2001 through 2003, neither of the Services routinely
    tracked the entire consultation process. Specifically, FWS and NMFS did
    not routinely track the time spent on or level of effort devoted to
    preconsultation, which includes actions such as interagency discussions of
    the content and level of detail to be included in a biological assessment.
    NMFS officials told us that preconsultation can be very valuable because
    it may result in modifications to a project to reduce effects to listed
    species and designated critical habitat so that the action agency may not
    need to go through formal consultation. According to officials with the
    Services and action agencies, the time spent in preconsultation may
    sometimes be considerable because many issues and potential problems may
    need to be discussed and resolved. In fact, preconsultation may account
    for the majority of the time spent on the entire consultation process,
    although some of this time may be spent on complying with environmental
    requirements other than consultation. As a result, computation of only the
    time and level of effort spent after the "official" start of a
    consultation (the point at which the Services are satisfied that the
    biological assessment is

    complete) may underrepresent the resources devoted to the process. Both
    Services now track actions taken in preconsultation in their systems and
    typically identify these actions as technical assistance. However, FWS'
    system does not electronically link these activities to subsequent
    consultations easily, and neither of the Services is using these data to
    determine the level of effort expended on the entire consultation process.

    Without information on the time spent in or level of effort devoted to
    preconsultation, the Services cannot easily determine how long the entire
    consultation process really takes or respond to complaints that it takes
    too long, or determine how many resources are expended during
    preconsultation. Nor can the Services identify trends in timeliness or
    workload; determine whether delays in preconsultation occur more often in
    certain locations, with certain types of projects, or with certain
    agencies; or accurately gauge their resource investment in the entire
    consultation process. NMFS officials said they use data on the "official"
    consultation process (i.e., excluding preconsultation) to identify when
    consultations are exceeding time frames so managers can step in to
    determine what is needed to resolve the cause of the delay.

    Some officials at the Services noted that tracking preconsultation
    accurately would be challenging. Specifically, they said that simply
    tracking the time elapsed between an inquiry from an action agency about a
    proposed activity and the official start of a consultation will not
    reflect periods of time when neither the Services nor the action agency is
    actively working on the consultation. For example, some actions that take
    place during that interval might relate to other activities, other
    consultations, or other required environmental analyses. In addition,
    because much of the information generated during this interval may be
    applicable to processes other than consultation, such as analyses to
    comply with the National Environmental Policy Act, officials said that it
    is difficult to apportion a specific amount of time to Endangered Species
    Act requirements.

    Improvement Efforts Have Focused on Collaboration, Workload, and
    Information Sharing, but Their Effectiveness Is Unclear

    The Services and action agencies have taken steps in three general
    categories to make the consultation process smoother and more efficient.
    These efforts focus on increasing collaboration, reducing workload, and
    increasing the consistency and transparency of the consultation process.
    While many officials praised these various efforts, their overall
    effectiveness is unclear because the Services have not comprehensively
    evaluated them.

    Services and Action Agencies Have Worked to Improve Collaboration

    The Services and action agencies have taken various steps focused on
    improving interagency collaboration to make the consultation process
    smoother and more efficient. The largest such initiative, referred to as
    "streamlining," began in 1995 and involves the Services and two action
    agencies-the Bureau of Land Management and the Forest Service-in the four
    states we reviewed. This initiative created interagency teams of
    biologists-known as Level 1 teams-that discuss proposed activities and
    their likely effects on listed species. One of the purposes of this effort
    was to encourage the Services and action agencies to work together on
    biological assessments in order to avoid later disagreements. As such, the
    Level 1 teams collaborate to identify an activity's potential effect on
    listed species, determine what protective measures are needed for species,
    and reach consensus on what information is needed for a "complete"
    biological assessment. This consensus is particularly important to the
    timeliness of consultations, because a consultation officially begins only
    when the Services have received what they consider to be a complete
    biological assessment.14 According to FWS officials, implementation of
    streamlining generally requires a greater commitment of staff resources
    than the "traditional" consultation process.

    The streamlined process is intended, through Level 1 team communication,
    to discuss the types of concerns or issues that typically arise during
    consultation. FWS and Forest Service officials told us that streamlining
    should result in better projects that incorporate needed species and
    habitat protections into their designs early, rather than requiring
    after-the-fact

    14As discussed earlier, a complete assessment is one that contains
    information sufficient to enable the Services to determine how the
    proposed activity is likely to affect listed species.

    changes that may cause delays in project implementation. Streamlining is
    also intended to eliminate what action agency officials described as a
    seemingly endless cycle of information requests. That is, in the
    traditional (nonstreamlined) consultation process, weeks or months may be
    spent fulfilling requests from the Services for additional information to
    resolve incomplete biological assessments (see fig. 6).

                          [This page intentionally left blank]

    Figure 6: Streamlined Consultation Process Seeks to Bypass the Iterative
    Cycle of Information Requests

    Under the streamlined process, in theory, a biological assessment
    submitted to the Services should never be incomplete, because their
    biologists have collaborated with action agency biologists on decisions
    about the assessment's key content. Accordingly, the interagency
    streamlining agreement specifies shorter time frames for the completion of
    a formal consultation conducted under the streamlined process-60 days as
    opposed to 135 days. For streamlined informal consultations, the
    completion time frame remains the same as for those conducted under the

    traditional process-30 days. In addition to eliminating multiple
    information requests, the streamlined process should enable the Services
    to produce a biological opinion (which concludes the consultation process)
    more quickly than if the agencies did not collaborate up front. If a Level
    1 team is unable to resolve disagreements about a proposed activity or its
    effects, the team is supposed to elevate those disagreements to a Level 2
    team, which is composed of field-level managers. Any disagreements
    unresolved by a Level 2 team can be further elevated.

    In Idaho, Oregon, and Washington, the Level 1 streamlining teams meet to
    discuss specific proposed activities. In Montana, the streamlining process
    is implemented differently because of staffing limitations, according to
    officials. Instead of discussing specific activities, Montana team members
    discuss common problems that could impede consultation, in general, and
    work on solutions. For example, the Montana team developed a standard
    format for biological assessments to improve their consistency. The team
    also developed criteria that can be used to quickly identify (i.e., screen
    out) proposed activities that will either have no effect on species-and
    thus do not require consultation-or those that are unlikely to adversely
    affect species, and can therefore undergo an informal consultation.

    Other collaborative initiatives involving other action agencies and
    nonfederal parties have also emerged. The U.S. Army Corps of Engineers
    uses a collaborative process in Montana to make the federal and state
    permitting process simpler and faster. The Corps holds a monthly meeting
    with officials from agencies involved in approving or issuing permits for
    work in or near bodies of water. At these meetings, attendees discuss
    complex or controversial activities that individuals are contemplating or
    for which permit applications have been submitted. Attendees generally
    represent the Corps; the Fish and Wildlife Service; the Environmental
    Protection Agency; the Montana Historical Society; and the Montana
    Departments of Environmental Quality, Natural Resources and Conservation,
    and Fish, Wildlife, and Parks; applicants are invited to attend the
    meetings as well. Not all proposed activities are discussed at the
    meetings-only those that may be of concern because of their location in a
    sensitive area, such as the Yellowstone River, or their likelihood of
    having a negative effect on listed or sensitive species.

    In Portland, Oregon, the Services, the U.S. Army Corps of Engineers, and
    the city of Portland recently launched a collaborative process as well. In
    Portland, the collaborative process will be used for consultations on the
    city's capital construction and maintenance activities, such as bridge
    repair

    and storm water management, that receive federal funding or require
    permits from federal agencies such as the Corps. According to city
    officials, monthly meetings held as a part of the collaborative process
    should result in more efficient consultation because they will enable
    prompt discussion of projects and early identification of opportunities to
    consolidate multiple projects into a single consultation.

    In a different effort to improve collaboration, the Services opened new
    field offices closer to the action agency offices with which they
    routinely consult. Numerous officials at the Services and action agencies
    told us that the ability to work together in person helps them develop
    better working relationships that are important to smooth and efficient
    consultations. Previously, the distance between some Services and action
    agency locations made consultations difficult. The Fish and Wildlife
    Service opened suboffices in Chubbock, Idaho; and La Grande, Roseburg,
    Bend, and Newport, Oregon; in part to handle an increased consultation
    workload in these areas. NMFS opened offices in Grangeville and Salmon,
    Idaho; La Grande, Oregon; and Ellensburg, Washington.

    Services and Action Agencies Have Modified Some Consultations to Reduce
    Workload

    To help reduce the workload associated with consultations while still
    protecting species, the Services, Bureau of Land Management, Forest
    Service, and the U.S. Army Corps of Engineers have developed numerous
    "programmatic" consultations. These programmatic consultations can be
    lengthy or difficult to develop initially, but are intended to ultimately
    reduce workload associated with subsequent consultations.

    One type of programmatic consultation reduces workload by combining
    multiple proposed activities into a single consultation rather than
    consulting on each individual activity. For example, one such programmatic
    consultation in Oregon covers various permits for grazing on 26 specific
    allotments on BLM lands. Prior to this programmatic consultation, BLM
    would have consulted individually on each of the 26 grazing allotments.
    However, given that the activities occurring on the allotments are
    similar, as are the effects of those activities, combining them into a
    single consultation is more efficient.

    Another type of programmatic consultation may reduce the work involved in
    individual consultations by providing specific design criteria that, if
    followed, will generally ensure a quicker and more predictable approval
    process. For example, a programmatic consultation being developed by FWS
    for methane coal bed development activities on public lands in

    Montana prescribes mitigative actions, such as installing devices to deter
    bald eagles from perching on infrastructure, that proposed projects should
    include. Similarly, land use plans that must go through consultation-such
    as multiyear forest plans-may provide clear direction on approvable
    project designs by identifying design criteria intended to limit effects
    on species. Presumably, if a proposed activity adheres to the prescribed
    criteria, consultations will proceed more quickly.

    One type of programmatic consultation that officials discussed with us
    covered categories of routine activities, even though the action agency
    may not yet have identified specific projects that it planned to conduct.
    For example, one such programmatic consultation allowed up to 120 culvert
    replacement and removal projects per year on Forest Service lands in
    Washington and eastern Oregon. To be covered under this programmatic
    consultation, proposed activities must have met specific criteria, such as
    design standards and the time of year of the activity, to ensure that they
    did not adversely affect protected species or habitat. Qualified projects
    could proceed without individual consultation, although the action agency
    might have been required to report annually on the location and size of
    the completed projects. In contrast, another programmatic consultation of
    this type-covering 10 categories of routine activities, such as road and
    trail maintenance on federal lands in northwestern Oregon-did not restrict
    the number of projects that could be allowed during the consultation's
    5-year life span as long as they met specific design criteria. However,
    several court decisions have raised questions about the legality of these
    types of programmatic consultations.15 As a result, FWS and Forest Service
    officials informed us that they are recommending that all programmatic
    consultations include provisions for site-specific (or project-specific)
    analysis.

    Services and Action Agencies Have Taken Steps to Increase Consistency and
    Transparency

    The Services and action agencies have taken numerous steps to increase the
    consistency and transparency of the consultation process. First, the
    Services and action agencies provide training for those involved in the
    process. For example, FWS provides weeklong introductory and advanced
    courses on the consultation process at its National Conservation Training

    15See, e.g., Pacific Coast Fed'n of Fishermen's Assn's, Inc. v. National
    Marine Fisheries Service, 265 F.3d 1028 (9th Cir. 2001), which held that
    in reaching a "no jeopardy" finding at a regional watershed level, NMFS
    acted improperly by failing to aggregate the effects of individual
    projects (at small sites in the watershed) on the entire watershed.

    Center in West Virginia. Anyone involved in the consultation process can
    take these courses. NMFS provides periodic training at its field offices,
    and both NMFS and FWS have offered interagency training courses at various
    action agency locations and are working on additional courses such as a
    course to assist action agencies in developing biological assessments. The
    Bureau of Land Management offers Endangered Species Act training two to
    three times a year, and the Bureau of Reclamation is developing a
    bureauwide training program on Endangered Species Act issues, including
    consultation.

    Second, the Services and action agencies have developed a variety of
    guidance documents on the consultation process. The Services' consultation
    handbook, for example, was developed to aid Service biologists in
    implementing the consultation process, but it is also used by action
    agencies and others. The Bureau of Reclamation has its own draft handbook
    for complying with Endangered Species Act requirements, including
    consultations, which is currently being reviewed by the Services. The U.S.
    Army Corps of Engineers is developing a library of biological assessments
    to serve as examples for Corps staff going through the process. The
    Services have also issued numerous policy memos or guidance that address
    confusing or problematic aspects of consultation. For example, the
    Services issued guidance on how to assess the direct and indirect effects
    of right-of-way permits for access to private land. Such assessments have
    instigated significant disagreements among the Services and action
    agencies that the guidance hopes to resolve.

    Third, the Services and action agencies have taken advantage of the
    Internet and internal agency Web pages to disseminate information on the
    consultation process and some specific consultations. The Services, the
    Bureau of Land Management, and the Forest Service have an interagency Web
    site that links to the Endangered Species Act, its regulations, and key
    guidance documents. NMFS has a Web site with links to final biological
    opinions and its consultation tracking system so that action agencies and
    others can identify the status of specific consultations; NMFS also has an
    internal Web site with agency guidance. FWS' regional office in Portland,
    Oregon, has a similar Web site for consultations conducted in Idaho,
    Oregon, and Washington. NMFS and FWS are working together to standardize
    an online template for developing a biological assessment. The U.S. Army
    Corps of Engineers has a Web site that provides information on the
    requirements of its permitting program, including permitted activities
    that must go through the consultation process. Reclamation officials told

    us that they make biological assessments developed by Reclamation staff
    available to assist other staff in the agency in preparing these
    assessments.

    Last, officials at both the Services and action agencies have used site
    visits to educate stakeholders about proposed activities and their likely
    effects on listed species. According to several officials at the Services
    and action agencies, seeing the site of a proposed activity firsthand is
    invaluable to understanding the activity and its likely effects on species
    and habitat (fig. 7).

    Figure 7: Site Visit to Culvert Replacement Project on Forest Service Land

    A Corps official told us that he has taken biologists with the Services
    out on dredges to increase the biologists' understanding of dredging
    operations and their likely effect on species. In another example, site
    visits were important in achieving agreement on a proposed development
    plan for a ski area in Washington. A Forest Service biologist convened
    on-site meetings of all the stakeholders in the consultation about the
    proposed plan. These stakeholders-representatives of the Fish and Wildlife
    Service, the Forest 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, including the
    Canada lynx. This on-site collaboration, according to the Forest Service
    biologist, not only resulted in stakeholder consensus on revisions to the
    development plan, but may also have forestalled litigation by the state
    and the local hunting group, which had previously opposed the proposed
    development plan.

    Effectiveness of Improvement Efforts Is Unclear

    Owing in part to actions taken to improve the consultation process, many
    officials from the Services and action agencies who responded to our
    survey believe that the process has improved since the late 1990s. Of the
    56 survey respondents who had been involved in consultations for at least
    the past 5 years, 33 (nearly 60 percent) said the process had improved.
    The perception of improvement was strongest in the Services, with 12 of
    the 14 who responded to this question citing improvements. Slightly more
    than half of the 40 action agency respondents also indicated that the
    process had improved. BLM respondents cited the process as improved more
    often than Forest Service respondents.

    More than half of the officials from the Services, BLM, and Forest Service
    who participated in our survey cited beneficial effects of streamlining,
    such as increased trust between the Services and action agencies, better
    communication, and earlier involvement in projects, which many officials
    emphasized as important for consultations to run efficiently. One Bureau
    of Land Management official said that the process of having Level 1 teams
    agree on the draft biological assessment lessens the chance that
    consultations will be prolonged by one or more requests from the Services
    for additional information from the action agency. City of Portland
    officials said that they are seeing similar benefits from their
    streamlining agreement with the Services, even though the agreement is in
    the early stages of implementation. These benefits include increased
    coordination among the city's bureaus and faster approval of Corps
    permits, which in turn have led to quicker implementation of city
    projects. As for the addition of new offices, several officials at the
    Services and action agencies mentioned their importance in enhancing
    professional working relationships and collaboration.

    Some of the officials with the Services and action agencies who responded
    to our survey also indicated that the use of programmatic consultations
    has improved the consultation process in the last several years. Numerous
    other officials at the Services and action agencies we interviewed also
    noted that programmatic consultations have increased the efficiency of the

    consultation process. For example, the Corps cited several benefits of a
    programmatic consultation for dock construction and repair; it has reduced
    the number of individual consultations required and provided more
    certainty to applicants and Corps officials as to which designs the
    Services would accept without formal consultation. Permit reviewers at the
    Corps have encouraged applicants to use such designs in order to speed
    their applications.

    Perceived improvements in the consultation process, however, cannot be
    attributed solely to the efforts of the Services and action agencies, as
    survey respondents identified several other factors that make the
    consultation process work well. These included effective teamwork between
    the Services and action agencies-particularly in instances where officials
    at the Services and action agencies had worked together long enough to
    develop trust-good interpersonal skills of staff involved in the
    consultation process, and increased experience with and knowledge of the
    consultation process in general, and with species such as the bull trout
    in particular. Our survey and interviews indicate that some officials
    believe that the consultation process is now less contentious because
    people have been working together longer and more frequently.

    Although the Services and action agencies have done limited evaluations of
    some of the improvement efforts, they have not assessed whether the
    efforts aimed at reducing workload and speeding up consultations are
    achieving their original goals. The Forest Service and an interagency team
    have evaluated problems with streamlining such as causes for delays. The
    interagency team, which is composed of officials from the Services, BLM,
    and the Forest Service, conducts reviews periodically throughout the year,
    evaluating issues such as procedures, management plans, and selected
    biological opinions. However, none of the evaluations has analyzed whether
    the strategy of investing resources in preconsultation actually reduces
    the work and time spent on consultations while maintaining necessary
    protection for species and habitat. Our timeliness analysis indicates that
    this strategy has not always resulted in streamlined formal consultations'
    meeting the expected shortened time frame of 60 days. Although many
    streamlined consultations are completed within established time
    frames-with some completed in very little time-we found that the Services
    did not conclude streamlined formal consultations within the 60day time
    frame for about 46 percent and 62 percent of FWS and NMFS streamlined
    formal consultations, respectively. Figures 8 through 15 show our
    timeliness analyses for all the consultations we reviewed.

    Figure 8: FWS Portland Office Streamlined Formal Consultations Days to
    complete 600 525 450 375 300

    225 150 135 days 75

    70

    60 60 days

    45

    30

    15

    0 Fiscal years 2001 through 2003 Total consultations = 69

    Source: GAO analysis of agency data.

    Figure 9: FWS Portland Office Nonstreamlined Formal Consultations

    Days to complete
    1200
    1090
    980
    870
    760
    650
    540
    430
    320
    210

    135 days
    100

    90
    80
    70
    60
    50
    40
    30
    20
    10

    Fiscal years 2001 through 2003

    Total consultations = 43
    Source: GAO analysis of agency data.

    Figure 10: FWS Portland Office Streamlined Informal Consultations Days to
    complete 800 720 640 560 480 400 320 240 160

    80

    79

    70 60

    50

    40

    30 30 days

    20

    10

    0 Fiscal years 2001 through 2003 Total consultations = 95

    Source: GAO analysis of agency data.

    Figure 11: FWS Portland Office Nonstreamlined Informal Consultations

    Days to complete 350

    294

    238

    182

    126

    70

    69

    60

    50

    40

    30 30 days

    20

    10

    0 Fiscal years 2001 through 2003 Total consultations = 122

    Source: GAO analysis of agency data.

    Figure 14: NMFS Streamlined Informal Consultations

    Days 490 430 370 310 250 190 130

    70

    69

    60

    50

    40

    30 30 days

    20

    10

    0 January 2001 through September 2003 Total consultations = 286

    Source: GAO analysis of agency data.

    long time frames were necessarily bad. FWS and Forest Service officials
    told us that in addition to reducing time frames, streamlining is also
    intended to help ensure that consultations are completed when the action
    agencies are ready to implement their actions, even if the streamlined
    consultation takes as long as it would have under the normal process. One
    FWS biologist said that streamlining has improved the consultation process
    because of the improved relationships and mutual understanding of each
    other's jobs, but that it requires more effort. In this official's
    opinion, however, the time is well spent because discussions take place
    before projects are final, so the relationship is less adversarial and the
    consultation outcome is better, such as fewer effects on species and
    habitat, or cheaper project modifications. Once a biological assessment is
    agreed to and is provided to the Services to start the official
    consultation, she said it is concurred with quickly because of the work
    and agreements reached on the Level 1 team. FWS officials told us they
    have committed a lot of resources to implement streamlining but do not
    know whether the effort has been effective. A FWS official said that if
    streamlining proves effective, he would like to implement it with other
    agencies, but he was unsure whether the Service could commit the resources
    to do so. A NMFS official told us that conducting a comprehensive
    evaluation of streamlining would take resources that the Service does not
    have. We also heard concerns about the use of programmatic consultations,
    particularly on the part of some officials at the Services, because of the
    legal vulnerabilities discussed earlier. FWS and Forest Service officials
    informed us that they are recommending that all programmatic consultations
    include provisions for site-specific (or project-specific) analysis
    because of this vulnerability.

    Federal Concerns about the Consultation Process Center on Workload and
    Process Requirements

    Despite efforts to improve the consultation process, officials at the
    Services and action agencies remain concerned about two primary issues.
    First, officials at the Services and action agencies are concerned that
    their workloads remain heavy, even though staff levels have increased in
    recent years, and it compromises their ability to complete all
    consultations in a timely manner. Second, officials at the Services and
    action agencies sometimes disagree about the extent to which consultation
    is necessary. Officials at the action agencies believe that the Services
    sometimes recommend consultation when it is not really necessary and that
    they request similarly unnecessary amounts of scientific analysis and
    documentation on potential effects. Officials at the Services told us that
    they believe they are appropriately fulfilling their responsibilities
    under the act to protect listed species and designated critical habitat.

    Services and Action Agencies Worry about Continued Resource Constraints

    Staffing shortages at the Services were the predominant concern about the
    consultation process among the 66 survey respondents. It was the most
    important concern among the Services, Corps, and Bureau of Reclamation
    respondents, with Forest Service and BLM respondents also identifying it
    among their top concerns. In addition to the survey respondents, other
    officials at the Services and action agencies we interviewed also
    expressed concerns about a lack of resources to deal with the consultation
    workload at the Services and at the action agencies.

    The Services have increased staff levels since the late 1990s to deal with
    their increasing workloads. NMFS estimates of staff levels for its
    Northwest region for fiscal years 1999 through 2002 show a nearly
    80percent increase in staffing levels (from 48 full-time equivalents to
    86).16 FWS staffing level estimates for its Portland, Klamath Falls, and
    Spokane field offices show a 58-percent increase for fiscal years 1998
    through 2002 (from 24 to 38).17 In some cases, these increases are
    primarily the result of the National Fire Plan that provides funding for
    biologists at the Services to specifically work on consultations for
    fire-related activities.

    Despite these increases, however, officials at the Services told us that
    they still do not have enough resources to handle their consultation
    workloads in a timely fashion. For example, data provided by the FWS
    Portland field office show that the number of consultations for which each
    biologist was responsible increased about 90 percent between fiscal years
    1998 through 2002, while resources increased about 40 percent. NMFS
    officials said that they have added staff since the mid-1990s to deal with
    increasing workload, but that the increase has never been enough. Data we
    analyzed from NMFS for January 2001 through fiscal year 2003 show that its
    workload doubled during this period. As a result, officials at both
    Services told us they often divert resources from other endangered species
    activities to help complete consultations. This situation is consistent
    with our findings in a June 2002 report on FWS budgeting for endangered
    species activities.18 We found that FWS field office supervisors in all
    regions reported that a lack of funds and

    16This includes the nine NMFS offices in Idaho, Oregon, and Washington
    that conduct consultations with the agencies we evaluated; NMFS does not
    have offices in Montana.

    17Other FWS field offices did not provide estimates.

    18U.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).

    shortage of staff adversely affected their operations, with consultations
    being the most frequently identified area with insufficient resources.
    Furthermore, many action agency officials complained of too few
    experienced staff at the Services to handle the consultation workload. In
    particular, almost all action agency officials we interviewed in Montana
    said that FWS resources in the state were woefully inadequate given the
    service's consultation workload. For example, one Forest Service official
    in Montana, who had been involved in consultations elsewhere in the
    Northwest, said she was astounded by the small number of biologists
    conducting consultations at FWS' office in Montana, given the workload,
    compared with the other three states included in our review.19

    Action agencies also expressed concern about a continuing imbalance in
    their workload and staff levels. For example, according to the U.S. Army
    Corps of Engineers, the number of consultations that the Corps conducted
    each year increased almost 300 percent between fiscal years 1999 and 2002,
    while staff devoted to consultations increased by about 60 percent during
    this period.20 Between fiscal years 1998 and 2002, Bureau of Reclamation
    officials said that they doubled the number of their staff devoted to
    consultations in the Pacific Northwest Region from a staff level of four
    fulltime equivalents in fiscal year 1998 to eight in fiscal year 2002.
    Reclamation estimated that its number of consultations increased by almost
    85 percent between fiscal years 1998 and 2001, but then declined in fiscal
    year 2002 to about 20 percent more than its fiscal year 1998 workload.
    Reclamation officials told us that, while the agency does not conduct many
    individual consultations, the projects they must consult on are large and
    very complex, such as those for ongoing water supply and dam operations.

    The persistent imbalance between workload and resources is frustrating for
    staff with the Services and action agencies. Officials from the Services
    said that they are constantly trying to keep up with their workload and
    must neglect other duties such as monitoring species or agency actions.
    Action agency staff are frustrated because biologists at the Services
    cannot review their proposed projects in a timely fashion. Compounding
    workload concerns is the belief of many officials at the Services and
    action agencies we interviewed that their consultation workload will
    continue to grow as

    19Montana is in a different FWS region than Idaho, Oregon, and Washington.

    20These data are for Corps consultations and staff in Idaho, Oregon, and
    Washington; the Corps' consultation workload in Montana is negligible.

    projects become more complex, and the Services consult on activities that
    have not undergone consultation in the past. For example, several
    officials expect that oil and gas activity on federal lands will expand,
    and that the associated consultations will likely be complex.

    Staffing level problems are exacerbated by high turnover of biologists at
    the Services. Officials at the Services said they constantly struggle to
    keep staff. NMFS officials told us that, given its controversial nature,
    consultation work is very stressful, and sometimes staff experience
    burnout. When seasoned biologists leave, they are sometimes replaced by
    staff that are not knowledgeable about the consultation process or action
    agency programs and projects. In such situations, the more senior
    biologists at the Services must not only take time away from their work to
    train the new biologists, but also take on additional work until the new
    staff are up to speed. Working with newly hired biologists is frustrating
    for action agency staff because they too must take time to educate the new
    biologists at the Services about the agency's programs and activities.
    Thus, gaining additional staff is somewhat of a double-edged sword,
    according to officials at the Services and action agencies-additional
    staff are needed, but it takes time to train them. In the meantime,
    consultations are postponed or take longer than usual to complete.
    Officials with the Services also told us that the considerable number of
    staff positions funded through the National Fire Plan are hard to keep
    filled, as they are temporary positions and do not provide for job
    security or promotion. High turnover also affects the success of
    collaborative efforts, such as streamlining, that many officials said are
    dependent on good working relationships that take time to develop.

    As a result of these staffing problems, some action agencies have
    arrangements with the Services, such as through reimbursable or
    interagency personnel agreements, to have biologist positions at the
    Services to specifically work on, or give priority to, their respective
    consultations. Agency officials told us that they have resorted to this
    method to ensure that their proposed projects get through the consultation
    process in a reasonable amount of time. For example, one BLM office
    provides funding, through an interagency agreement, for a FWS biologist
    position in Billings that is devoted to consultations related to BLM field
    offices' revisions to resource management plans. As mentioned previously,
    the National Fire Plan also provides resources for biologists at the
    Services so that consultations related to fire activities can be completed
    expeditiously.

    Services and Action Agencies Disagree about the Extent of Consultation
    Needed

    A major concern identified by survey respondents and others we interviewed
    was that the Services and action agencies sometimes disagree about the
    extent to which consultation is needed. While action agency officials
    recognized the benefit of the consultation process to species, many also
    thought that the process had gotten out of control, that they were
    consulting on many more activities than was necessary, and that
    consultations were going beyond what was called for by the Endangered
    Species Act. For example, although action agencies have the authority
    under the act to decide whether to consult with the Services about their
    activities, many action agency officials said they are reluctant not to
    consult with the Services even if they believe that their activities will
    not affect listed species. Some action agency officials told us that if
    they do not get the Services' concurrence on a proposed activity, they
    feel vulnerable to legal challenge. Similarly, action agency officials
    complained about the need to consult on activities likely to have only
    minor effects on species. Some officials felt that it was most important
    to spend time consulting with the Services on activities that were likely
    to have major effects on species. They said that they know how to avoid
    jeopardizing species while carrying out their activities, but that their
    professional expertise is not recognized.

    Officials with the Services said that the purpose of the consultation
    process is to consider the potential effects of proposed activities
    regardless of whether they are positive or negative and to avoid
    jeopardizing species' continued existence and adversely modifying their
    critical habitat. For example, the consultation handbook states that
    consultation should be conducted on activities with "insignificant,
    discountable, or completely beneficial" effects in addition to those with
    clearly negative effects. Some officials with the Services emphasized that
    they cannot ignore their responsibility to consult on every action that
    may affect species or their habitats, and that they must show some level
    of good faith effort to do so. The Services also pointed out, however,
    that under the act and its implementing regulations, activities that are
    not likely to adversely affect species may undergo a less burdensome
    consultation process (i.e., informal consultation). FWS officials told us
    that the consultation process provides considerable benefits to species
    and, in some cases, to action agencies. For example, in some cases,
    consultation may result in a project that better maintains the integrity
    of the ecosystem of concern (that would include designated critical
    habitat) that may provide an agency action more flexibility to carry out
    future activities in the ecosystem than it otherwise would have had. FWS
    officials also told us that while they respect the professional expertise
    of the action agencies, that expertise, the information available, and the
    perspective of the action agencies are

    typically focused on conservation of species on their respective lands
    while the Services are responsible for conserving species throughout their
    ranges.

    Some action agency officials believe that the Services spend too much time
    and effort scrutinizing short-term negative effects of proposed activities
    that, in the long run, would be benign or beneficial to species or
    habitat. These officials said that the Services tend to overlook the
    overall benefits of these activities and instead focus the consultation
    too heavily on the short-term effects. For example, activities such as
    replacing or repairing culverts, obliterating roads, or reducing forest
    fuels can have short-term negative impacts (such as increased sediment in
    the water or temporarily increased traffic in wildlife habitat) but can
    also have long-term benefits (such as enhanced fish passage, reduced
    sediment in fish habitat, and lower likelihood of catastrophic wildfires).
    Replacement of pier and dock structures provides a good illustration of
    the conflict between short-term impacts and long-term benefits (see fig.
    16).

    Left to right: Frame of mitigation equipment being deployed around a new
    steel piling to be installed; steel piling being installed with mitigation
    equipment operating to replace creosote-treated wood piling.

    Note: Replacing creosote-treated wood pilings with steel pilings has many
    benefits. Not only does the replacement remove toxic creosote from the
    water, but steel pilings require no maintenance and, hence, no future
    disturbance to the ecosystem. However, when a vibratory hammer is used to
    install the steel pilings, the sound waves can harm fish. To minimize the
    potential harm, NMFS requests the use of a mitigation method, such as this
    one, which generates a protective curtain of air bubbles around the
    installation site to minimize the transport of sound waves. In some cases,
    NMFS also requests that a diver be hired to observe any fish injuries that
    may result from the installation. Some

    seaport officials find it difficult to justify the cost of such protective
    measures; they believe the longterm benefits should offset any immediate
    harm.

    Officials at the Services pointed out that consultation is required for
    activities that have negative short-term effects even if the activities
    have long-term beneficial effects.21 Officials at the Services also said
    that action agencies are sometimes too quick to discount negative effects
    or to ascribe benefits to their activities without fully understanding the
    limitations. A NMFS official provided an example of a project to replace a
    dam used to divert river water for irrigation. The replacement dam was
    built, in part, to increase habitat for listed salmon species and reduce
    the possibility of take of listed species during the frequent maintenance
    activities that the older dam required. Despite the protective barriers
    included in the new dam, after its completion, officials found dead fish
    that had accessed the diversion through an alternate channel and were
    crushed against the inside of the barrier. A further project review
    revealed the potential for fish caught in the diversion conduit to be sent
    falling onto exposed rock. FWS and Forest Service officials told us that
    many projects that have long-term benefits to listed species result in
    short-term adverse effects including take that can be authorized through
    the formal consultation process. Another factor that NMFS officials
    explained could add to the significance of shortterm negative effects is
    that the Services must consider aggregated impacts of numerous activities
    in an area when they are evaluating the potential effects of a single
    activity (see fig. 17).

    21See Pacific Coast Fed'n of Fishermen's Assn's, Inc. v. National Marine
    Fisheries Service, 265 F.3d 1028, 1037 (9th Cir. 2001).

    Source: U.S. Army Corps of Engineers.

    Note: A NMFS official recognized that some people believe that requested
    mitigation actions seem excessive for a single project; however, he
    explained that they are required to assess the aggregated effects of
    projects in an area. In Lake Washington, there are countless docks and
    piers that individually may not have a significant effect on species, but
    when taken together, their effects could be considerable.

    In addition, some action agency officials said the Services sometimes
    request that they conduct studies or do monitoring to develop new
    information about a species or its habitat. Action agency officials
    pointed out that the consultation process requires agencies to use the
    best available information, not develop new information. Some officials
    believe that this is the Services' way of gathering new information on
    species because they do not have the resources to conduct their own
    research. For example, Corps officials told us that for one of their
    proposed activities they were asked to conduct sophisticated hydrologic
    monitoring because FWS

    speculated that a proposed Corps activity might result in the transport of
    contaminants in sediment to salmon habitat. However, the Corps asserted
    that it provided studies showing that the suspected contaminants were not
    present in the sediment and, therefore, the monitoring was not needed.
    Under consultation regulations, the Services can ask that additional
    studies be conducted, but the action agencies can refuse; in that case,
    the Services should proceed with issuing their biological opinions using
    the best available information without the requested studies. The
    consultation handbook suggests that the Services explain to action
    agencies that gathering more information may ultimately be in the their
    best interests if the information yielded allows the Services to be less
    conservative in their biological opinion. Specifically, the handbook
    states that if significant data gaps exist, the Services can either extend
    the due date for completing the biological opinion until sufficient
    information is developed or issue their opinion with the available
    information, giving the benefit of the doubt to the species.

    Finally, some action agency officials expressed concern that the Services
    are taking the consultation process beyond what is actually called for in
    the Endangered Species Act. Some action agency officials said that they
    feel they are forced to compromise their project designs too much in order
    to avoid receiving an opinion from the Services that their proposed
    activity may jeopardize a species' continued existence or adversely modify
    its critical habitat (often simply referred to as "jeopardy"). While
    action agency officials recognized their responsibilities to conserve
    threatened and endangered species, some officials believe that, in some
    cases, the Services are requesting project changes or mitigative actions
    during the consultation process that are intended to help recover species,
    not just avoid jeopardy (see fig. 18).

    Left to right: Caving railbed posed a safety hazard; restoration effort to
    provide stability to railbed and habitat.

    Note: The project restored the integrity of the railbed. However, in the
    opinion of the railroad company's consultant, FWS requested extensive fish
    and wildlife habitat restoration beyond what existed in the current
    condition and beyond what was necessary to shore up the failing riverbank
    and avoid jeopardizing species or habitat. While not detectable in the
    photograph, the railroad company installed extensive plantings of willows
    in the restored riverbank areas to create a riparian area. FWS officials
    disagreed that this was excessive because, they said, without the
    plantings of trees and shrubs, the bank stabilization would be only
    temporary. FWS officials added that project modifications or mitigation
    that only protect species or habitat in the short-term do not fulfill the
    action agencies' responsibilities under the consultation requirements of
    the Endangered Species Act.

    Officials with the Services and action agencies told us there is a
    negative perception about a FWS or NMFS determination that an agency's
    proposed activity will jeopardize a species. Therefore, action agency
    officials said they often feel compelled to modify their activities or
    implement mitigative actions they do not believe are necessary to avoid
    jeopardy. Action agency officials asserted that this is the reason that
    the Services issue so few opinions identifying potential jeopardy to a
    species each year.

    Interior's Assistant Secretary for Water and Science addressed this issue
    last year at a Bureau of Reclamation conference by asserting that while
    Reclamation will implement conservation measures for species when
    practicable, the agency should not include components in its proposed
    activities that it believes are not necessary for avoiding negative
    effects to species. Reclamation reiterated this stance in a policy
    statement recognizing that this new policy may result in the agency
    receiving jeopardy opinions in some cases. Reclamation officials told us
    that it would help if the Services were clearer as to which activities
    were essential to avoiding harm to a species and its habitat and which
    would be beneficial to broader recovery efforts.

    Officials at the Services told us that, because there have been very few
    jeopardy opinions issued, they believe the consultation process is
    working. They recognize that there is a negative perception surrounding
    the issuance of a jeopardy opinion, and that action agencies typically do
    quite a bit to avoid getting such an opinion. However, they see the
    process of working through issues in order to avoid a jeopardy opinion or
    the need for formal consultation as a success, rather than an example of
    the Services coercing agencies to modify their activities unnecessarily.

    Action agency officials thought the documentation needed for the
    consultation process was similarly getting out of control. Specifically,
    they said they were being asked to provide the same level of detail and
    scientific analysis for activities that were unlikely to affect species as
    for those that were likely to have negative effects. A major point of
    contention with regard to documentation was the amount of detail requested
    by the Services in a biological assessment. Typical disagreements about
    the information needed for a "complete" biological assessment, according
    to officials at the Services and action agencies, deal with the scope and
    design of the activity, its likely effects on species, and the baseline
    against which to assess those effects. For example, Bureau of Reclamation
    officials told us that the Services request that they assess the effects
    of dam operation and maintenance activities against a pre-dam
    environmental baseline (i.e., against conditions that existed before the
    dam was built). Reclamation officials said that they disagree with this
    definition of environmental baseline, asserting that it would be
    appropriate for construction of a new dam, but not for operation and
    maintenance of an existing one. Consultation regulations and the
    consultation handbook discuss the environmental baseline as including the
    past and present impacts of all federal, state, and private actions in the
    area of a proposed project so that the factors leading to, and possibly
    still affecting, the current status of a

    protected species can be understood. Reclamation officials told us that
    they are in the process of working out their differences with the Services
    on how effects will be analyzed for operations and maintenance at existing
    facilities.

    Overall, action agency officials believe that the Services often request
    too much information and that, even though activities with minor impacts
    may be consulted on informally, informal consultations sometimes entail as
    much documentation and time as do formal consultations on more harmful
    activities. For example, Forest Service officials told us that
    disagreements on the information needed to assess effects has been a
    primary cause of mistrust with the Services, and Bureau of Reclamation
    officials said that the Services should more clearly explain what
    information is lacking and why the additional information is necessary for
    determining the likely effects of an activity.

    According to officials at the Services, despite increased guidance, they
    still receive many biological assessments with insufficient detail to
    judge a project's effects, and in those cases the Services may make
    repeated requests for more detailed information until they are satisfied
    that the assessment adequately addresses the effects of the proposed
    activity on the species; this may increase the length of time it takes an
    action agency to complete the entire consultation process. FWS officials
    said that the Services would likely request the same level of detail and
    scientific analysis for projects that are not likely to effect listed
    species or designated critical habitat as they do for projects that are
    likely to effect them, because they generally need the same type of
    information to evaluate the potential effects to species; in this regard,
    FWS officials noted that they are compelled by the Administrative
    Procedure Act to articulate a satisfactory basis and explanation for their
    actions. FWS officials also told us that if an action agency is
    comfortable with its own determination of "no effects" for a project, the
    agency would not need to request the Services' concurrence, and
    accordingly, not need to respond to potential information requests. NMFS
    officials told us that the online template that the Services are
    developing for biological assessments should eliminate some of the
    disagreements about the content and adequacy of the assessments.

    Because of these disagreements, action agency officials feel that, in
    practice, they are investing the same amount of resources for activities
    that are unlikely to harm species as for activities that are highly likely
    to harm species. That is, the officials feel that all proposed activities
    receive a similar level of scrutiny, require a similar amount of
    documentation, and

    consume a similar amount of time and effort in consultation, regardless of
    their potential effect. According to a Forest Service biologist with 25
    years of experience, today's consultation approach means that the Forest
    Service has to consult on every activity, no matter how inconsequential.
    In effect, she said, the current process does not allow for any decisions
    to be based on the action agency biologists' professional judgments. Some
    action agency officials told us that, given persistent staffing
    constraints, this did not seem to be the most effective approach. Service
    officials noted that they must consult on activities that may affect
    species regardless of the potential severity of the effects. However, a
    NMFS official said that the streamlining process includes a risk-based
    approach to the level of effort devoted to consultations, in that
    streamlining teams will focus on proposed projects with a higher
    likelihood of adverse effects.

    We identified several reasons for disagreements about the extent of
    consultation. Officials at the Services and action agencies alike cited
    the fear of litigation among the most significant concerns with the
    consultation process that often affects their decisions about whether or
    not to consult on projects and the level of documentation to complete. The
    Services have been affected by a number of federal court decisions in
    Idaho, Montana, Oregon, and Washington involving the consultation process.
    Past court decisions have sometimes required the Services to re-do
    analyses because their conclusions did not have adequate support, or
    required consultation on activities that had not gone through the process.
    Action agency officials said that this has led the Services 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
    "bulletproof" or so comprehensive that they are impervious to legal
    challenge. Action agency officials told us that they believe such scrutiny
    and documentation is not always necessary, and that complying with such
    requests from the Services adds to the time and cost of consultation.

    Conversely, officials at the Services asserted that the outcomes of court
    decisions have established the need to consult on all activities that may
    affect species, regardless of whether the effects are negative or
    positive, and to clearly document how they came to their decisions
    regarding the activities' effects on species and habitat. Some action
    agency officials recognized that the outcome of litigation similarly
    causes them to put more details in their biological assessments than they
    otherwise would. For example, Bureau of Reclamation officials said that
    increases in Endangered Species Act related litigation have increased the
    need for

    improved documentation that is more defensible in court, which might
    include more details about a project, additional graphics, maps, charts,
    and increased scientific analyses. Litigation has also resulted in more
    management, editing, and legal review. Forest Service officials also
    acknowledged the fear of litigation saying that it is pervasive across the
    Forest Service, and results in the agency including more details in its
    own analyses and documentation.

    Another factor leading to disagreements is that some officials at the
    Services and action agencies still do not understand each other's programs
    or the consultation process, despite efforts to provide training,
    guidance, and other information. More than one-half of the respondents to
    our survey said they were concerned that new biologists at the Services do
    not receive sufficient training in the consultation process; respondents
    were also concerned that new action agency biologists do not receive
    sufficient training. Officials at the Services and action agencies agreed
    that biologists at the Services 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
    biologists at the Services is one factor that contributes to this lack of
    familiarity with action agency activities. Also, a BLM official said that
    action agency biologists sometimes do not understand the potential
    complexity of the consultation process and underestimate the length of
    time it may take. This official said that training on the consultation
    process is needed for both new and experienced staff.

    Personality problems were also identified among the top concerns for the
    Services and action agencies and an issue that can result in disagreements
    between the Services and action agencies about the extent of consultation
    needed. Officials at the Services and action agencies said that sometimes
    officials take unyielding positions on consultations, either on behalf of
    the activity or the listed species, and they waste time arguing about
    philosophical positions rather than rationally working through project
    effects. In these instances, the process takes much longer to complete
    than when participants are able to compromise. 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. In some areas, staff were able to
    overcome philosophical differences because they have been working together
    for several years and have developed trust. In areas where there is high
    staff turnover or unyielding personalities, trust has been harder to
    develop.

    Nonfederal Parties' Concerns Depended on Their Expectations of the
    Consultation Process

    Nonfederal parties' concerns depended largely on their expectations of the
    consultation process. Nonfederal parties intent on carrying out an
    activity were concerned primarily about the cost and time required for the
    process, although in some cases factors other than consultation added to
    the cost or time. Environmental advocates, in contrast, were concerned
    mainly about whether the process effectively protects species. In
    addition, both applicants and environmental advocates were concerned that
    the process was not sufficiently transparent.

    Applicants Were Primarily Concerned about Cost and Time

    Applicants are individuals, companies, or other organizations that receive
    federal authorization or funds to conduct certain activities, and the
    effects of these activities on protected species must be considered to
    determine if consultation is necessary. We interviewed 40 applicants
    including individual landowners, companies, and industry groups who had
    been through the consultation process for activities such as private dock
    construction or repair, timber harvesting, and oil and gas or mineral
    development. Most of these 40 applicants expressed concern about the cost
    that the consultation process added to their activities. For example, more
    than half of these applicants hired consultants to prepare the biological
    assessment for consultation on their activity because, in some cases, the
    action agencies' workload was too great to prepare an assessment in a
    timely manner for them. Typically, hiring such consultants added thousands
    of dollars to the applicants' costs. Now that consultation is conducted as
    a part of the permitting process, permitting costs have increased to about
    33 percent of construction costs for a typical dock, according to a
    homeowner's representative in Washington. In contrast, before the
    additional species listings in the late 1990s, the permitting process for
    such activities averaged about 5 percent of construction costs.

    Most applicants also incurred costs associated with modifications to their
    proposed activities during consultation-modifications which they viewed as
    costly or unnecessary. For example, a timber company representative in
    Idaho said that a consultation between FWS and the Forest Service for a
    timber sale resulted in unnecessary costs after a bald eagle's nest (the
    bald eagle is a threatened species under the ESA) was discovered in the
    area of the sale while the company was preparing for harvest. FWS and
    Forest Service determined that the timber contained in a 1-mile buffer
    zone around the nest should not be harvested in order to protect the
    eagle. However, according to the company representative, forgoing that
    zone would have largely devalued the sale because it included nearly all
    of the

    high-value timber. After learning about the federal agencies' decision,
    the company paid over $6,000 to an outside consultant to review it; the
    consultant prepared a biological assessment that identified deficiencies
    in the federal agencies' scientific reasoning behind the decision.
    Ultimately, FWS and the Forest Service excluded a smaller area of timber,
    causing the company to forgo a much smaller share of the high-value
    timber-about 22 percent-from the original sale. However, by the time this
    decision had been reached, the market value of the high-value timber had
    dropped substantially.

    Most applicants were also concerned about the additional time needed to
    carry out their activities as a result of the consultation process. For
    example, an applicant for a U.S. Army Corps of Engineers permit to
    construct a marina in Washington waited more than 180 days for NMFS to
    issue its biological opinion-about 45 days longer than the 135 allowed
    once formal consultation is initiated. Beforehand, the applicant had
    already spent about 125 days in preconsultation, which included multiple
    requests from NMFS, spaced weeks or months apart, for additional project
    information that sometimes duplicated information he had already provided
    or that appeared unnecessary for initiating consultation. According to the
    applicant, the lengthy consultation risked delaying the construction for a
    year because of the limited time window for in-water work, which must be
    planned around fish presence and cannot take place during severe weather.
    NMFS officials recognized that final reviews of the draft biological
    opinion both at NMFS and the Corps took longer than usual, in part,
    because NMFS was working to standardize the quality of its biological
    opinions issued by various field offices. NMFS officials maintained,
    however, that all of the information requested was necessary for
    consultation and speculated that some information may have duplicated what
    was sent to state or local permitting agencies to which NMFS was not
    privy.

    As another example, the average time for the Corps to process 19 permits
    issued in 2002 for building private docks or similar activities on Lake
    Washington (near Seattle) was about 2 years. This time included the
    consultation time spent by the Services, as well as the time spent by the
    action agency to help the permit applicant complete a biological
    assessment for the consultation and meet other Corps requirements for the
    permit. Officials from both Services noted that the prolonged permitting
    process was due, in part, to the consultation workload generated after the
    late 1990s salmon and bull trout listings, as well as FWS' initial
    unfamiliarity with the effects of activities on the bull trout-the only

    aquatic species FWS manages in Washington. According to a Lake Washington
    homeowners' representative, before the additional species listings in the
    late 1990s, the permitting process for such activities generally took only
    2 or 3 months.

    Concerns about time and expense that an applicant attributed to the
    consultation process may sometimes stem from other factors about which the
    applicant may have been unaware. For example, an applicant seeking road
    access through a national forest to his private timberland, which he
    planned to partially harvest, waited 3 years for federal approval.
    According to the landowner, the timber on his land was devalued by as much
    as onethird while the permitting process ran its course. He attributed
    this wait and cost to consultation. Though the permitting process included
    consultation, the Forest Service biologist involved in the permit said
    that efforts to comply with the National Environmental Policy Act, rather
    than consultation, protracted the permitting process. Similarly, Forest
    Service officials said that, in general, the National Environmental Policy
    Act is often the limiting factor in delayed fire projects.

    Some applicants found the consultation process to be confusing or unclear.
    According to officials at the Services, applicants-particularly,
    first-time applicants-often apply for permits "late," when they are ready
    to proceed with a project that has not taken listed species into account.
    In some cases, applicants were unaware of consultation requirements or the
    time frames involved. For example, a representative from a local
    government in Oregon, overseeing her agency's first project to restore
    fish habitat, first learned of the federal permitting and consultation
    requirements after receiving state approval for the project. She was
    concerned about the time needed for permitting and consultation because
    her agency faced pressure to finish the project before the funding expired
    and the seasonal work period ended. In this case, the project was
    completed on time because NMFS and the U.S. Army Corps of Engineers worked
    hard to complete the permitting and consultation within her time
    constraints.

    Environmental Advocates Environmental advocates that we contacted were
    primarily concerned that Were Concerned about the consultation process, as
    implemented, does not go far enough to Whether the Process protect listed
    species. According to these advocates, consultations may not

    adequately protect species, in part, because of weak oversight by the

    Protects Species	Services. Advocates said that the Services provide weaker
    oversight than in the past over proposed actions undergoing consultation
    for reasons such as understaffing, pressure to speed up the consultation
    process, the Services'

    focus on collaboration with the action agencies, and political pressure to
    avoid jeopardy biological opinions. Advocates were also concerned about
    new regulations that could further reduce oversight. These regulations
    allow action agencies to self-certify certain activities related to
    wildfire prevention without consulting with the Services, if certain
    procedures that involve the Services are followed.

    Advocates also suggested that the Services may not be adequately
    protecting species because of a limited understanding of species'
    conditions. One environmental advocate said that these limitations impair
    the Services' ability to predict the effects of proposed activities,
    including whether they could jeopardize species' continued existence. FWS
    officials noted that their biological opinions include sections on the
    status of species in which they review the known information about a
    species and its biology. Two advocates said that one reason why the
    Services may not sufficiently understand species' conditions is that
    action agencies sometimes incorrectly determine that an action will not
    affect listed species. Since consultation is not required when an action
    agency makes a "no effects" determination, the Services may never know
    that the activity occurred and cannot take it into account when reviewing
    the potential effects of other activities. One advocate expressed concern
    that the Services and action agencies would be in a poorer position to
    predict the effects of proposed activities under the new regulations that
    allow selfcertification because they might be unaware of activities
    permitted by other federal agencies using such certification. For example,
    one BLM district or national forest might not know the effects of other
    agencies' activities elsewhere in a species' range, and the combined
    effects of those activities could be harmful.

    All Nonfederal Parties Shared Concerns about Transparency

    Applicants and environmental advocates expressed concern that the
    consultation process lacks transparency. The majority of the nonfederal
    parties wanted a greater role in the consultation process, including more
    timely information about the action agencies' and the Services'
    deliberations or an opportunity to provide input. For example, one
    official from a group representing irrigators in Idaho described his
    organization's main role in consultations as "pounding on the door of [the
    Bureau of Reclamation]," on its constituents' behalf, in order to receive
    timely updates on the agency's deliberations with the Services and to
    provide input to the process. The representative noted that his
    constituents have a major financial stake in the outcome of consultations
    on the bureau's water storage and delivery infrastructure, which provides
    water for raising crops,

    livestock, or other activities. Past consultations, for example, have
    obligated Reclamation to increase river flows to benefit listed fish
    species, which could affect the water available to his constituents.

    In addition, representatives from several environmental advocacy groups
    said that land management decision-making processes, such as
    consultations, 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 environmental group's
    representative said that outside parties need to resort to requests under
    the Freedom of Information Act in order to get information about
    consultations, and that this wastes resources. To help alleviate this, he
    suggested that the public receive notification when consultation is taking
    place and be allowed to submit written comments. Officials at the Services
    pointed out that the Endangered Species Act does not provide for public
    involvement in the consultation process as it does for many other
    components of the act. Under Endangered Species Act regulations, certain
    procedural opportunities-such as the opportunity to submit information
    during the consultation and to review and comment on the draft biological
    opinion-are provided only for an applicant seeking federal approval for an
    activity.

    Conclusions	The consultation process and many other aspects of the
    Endangered Species Act remain contentious and controversial after 30
    years, and the situation shows no signs of changing. Efforts by the
    Services and action agencies to improve the process have had some clear
    benefits-improving interagency relationships and information dissemination
    about the process, and reducing workload in some cases. Still, frustration
    and confusion continue. Action agencies believe the Services sometimes go
    beyond what the act calls for, while the Services argue that they are
    simply fulfilling their legal obligations to protect species within the
    constraints of limited resources. Both the Services and action agencies
    recognize that fear of litigation is affecting the process. Clearly, there
    is no boilerplate approach to handling consultations. The nature of
    different species' biologies, dynamic ecosystems, and the multitude of
    activities performed and their various levels of effects, makes the
    consultation process a difficult task that is dependent on understanding
    specific conditions and exercising a healthy dose of best professional
    judgment. Hence, even with a perfect process, there will always be
    disagreements.

    However, we believe that given the importance of the consultation process
    on species' protection and federal and nonfederal activities, the Services
    and action agencies should do more to air persistent disagreements,
    discuss their respective positions openly, and identify additional steps
    that are needed to enhance a consistent understanding of what is required
    under the act. Improved information on the consultation process itself,
    including the level of effort devoted to preconsultation, is an important
    part of this effort as there are continual complaints about the
    lengthiness of and burden posed by the process. In addition, given
    constant concerns about the sufficiency of resources, it is imperative
    that the Services and action agencies take steps to ensure that they are
    using resources effectively, particularly by gathering more complete and
    reliable information about the level of effort devoted to the process and
    evaluating the efficacy of steps taken to improve the process.

    Recommendations for Executive Action

    We are making four recommendations to improve implementation of the
    Endangered Species Act consultation process.

    o 	We recommend that the Secretary of the Interior and the Under Secretary
    of Commerce for Oceans and Atmosphere direct the Directors of the Fish and
    Wildlife Service and the National Marine Fisheries Service to work
    together with the action agencies we reviewed (and others the Services may
    deem appropriate) to determine how best to capture the level of effort
    devoted to preconsultation in their data systems and ensure that such
    information is gathered, maintained, and used to manage the process
    effectively.

    o 	We further recommend that the Secretaries of the Interior and Defense,
    the Under Secretary of Commerce for Oceans and Atmosphere, and the Chief
    of the Forest Service, work together to

    o 	resolve disagreements about when consultation is needed and how
    detailed an analysis is necessary given a proposed activity's likely
    effects on species or habitat, and ensure that their agreements are
    disseminated quickly to all staff involved in consultations as well as to
    the public;

    o 	refine guidance, as needed, on the type and specificity of
    documentation required in consultations; and

    o 	evaluate the efficiency and effectiveness of efforts to improve the
    consultation process, such as programmatic consultations and streamlining,
    and use the evaluation results as a basis for future management actions.

    Agency Comments and Our Evaluation

    We provided copies of our draft report to the Departments of the Interior
    and Defense, NOAA, and the Forest Service. The Departments of the Interior
    and the Army, NOAA, and the Forest Service provided official written
    comments. (See appendixes II through V, respectively, for the full text of
    the comments received from these agencies and our responses.)

    The departments, NOAA, and the Forest Service generally concurred with our
    findings. The Army commented that the report did a good job of identifying
    the multiple problems that contribute to delays and often to increased
    costs at U.S. Army Corps civil works and regulatory projects as
    preconsultation and informal and formal consultation proceed. The Forest
    Service commented that the report accurately describes many of the topics
    associated with interagency cooperation under the consultation process-
    with both the process itself and with agency use and implementation of it.
    The Department of the Interior, NOAA, and the Forest Service commented
    that the report should better reflect the benefits of preconsultation and
    consultation. We agree and have incorporated additional information on
    these issues in the report.

    Concerning our recommendations, the departments, NOAA, and the Forest
    Service concurred with our recommendation to capture the level of effort
    devoted to preconsultation, although the Forest Service, NOAA, and the
    Department of the Interior noted concerns about finding an adequate but
    not overly burdensome process to do so. We discussed this difficulty in
    our draft report and recognize that the data management solution might not
    involve a precise tracking of individual official's time spent on specific
    consultations but instead might consist of higher-level indicators of the
    effort devoted to a consultation. Our recommendation is intended to
    provide the agencies with flexibility in finding an acceptable solution.
    The Army suggested that we clarify and strengthen this recommendation to
    ensure that the Services and the action agencies we reviewed are equal
    partners in efforts to improve data management related to preconsultation.
    We have modified this recommendation to ensure that our intent that all
    agencies be involved in identifying a data management solution is clear.

    The Departments of the Army and the Interior and NOAA agreed with our
    second recommendation, which directs the departments, NOAA, and the Forest
    Service to work together to resolve disagreements about when consultation
    is needed and how detailed an analysis is sufficient, but the Forest
    Service did not. The Forest Service commented that this recommendation was
    unnecessary because regulations set forth the requirements for
    consultation. We are retaining the recommendation because, while the
    criteria for consultation are provided in the regulations, the
    disagreements we found during our audit work indicate that clarification
    beyond these regulations is necessary. While the Army agreed with this
    recommendation, it suggested that the recommendation should be more
    specific as to how to resolve disagreements. We have not modified this
    recommendation because we do not want to prescribe "interagency
    procedures," as suggested by the Army; we believe the departments, NOAA,
    and the Forest Service should have flexibility in determining what method
    is most effective, including proposing regulatory or legislative changes
    if needed.

    All the agencies agreed with our recommendations to refine guidance and to
    evaluate the efficiency and effectiveness of improvements made to the
    consultation process. The Department of the Interior, NOAA, and the Forest
    Service also provided other comments and technical clarifications on the
    draft report. We have made changes where appropriate.

    As agreed with your office, unless you publicly announce the contents of
    this report earlier, we plan no further distribution until 5 days from the
    report date. At that time, we will send copies of this report to the
    Secretaries of Defense and the Interior, the Under Secretary of Commerce
    for Oceans and Atmosphere, and the Chief of the Forest Service, and to
    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 staff have any questions,
    please call me at (202) 512-3841. Key contributors to this report are
    listed in appendix VI.

    Barry T. Hill Director, Natural Resources and Environment

    Appendix I

                           Objectives, Scope, and Methodology

    The Chairman, Subcommittee on Fisheries, Wildlife, and Water, Senate
    Committee on Environment and Public Works, and Senator Baucus, asked us to
    (1) assess the federal data available on consultations completed in Idaho,
    Montana, Oregon, and Washington, including data on the number completed
    and their timeliness, for fiscal years 1998 through 2003; (2) identify
    steps taken by the Fish and Wildlife Service, the National Marine
    Fisheries Service, and other federal agencies to improve the consultation
    process; and (3) discuss concerns of federal officials in the Services,
    officials with other federal agencies, and nonfederal parties about the
    process. As agreed with the Chairman, we limited our evaluation to four
    action agencies-the U.S. Army Corps of Engineers, Interior's Bureau of
    Land Management and Bureau of Reclamation, and Agriculture's Forest
    Service-for consultations conducted in Idaho, Montana, Oregon, and
    Washington. To assess the data available on consultations, we obtained
    data on the number of Fish and Wildlife Service (FWS) and National Marine
    Fisheries Service (NMFS) consultations with the four action agencies for
    fiscal years 2001 through 2003. These data are being used primarily to
    provide context on consultations in Idaho, Montana, Oregon, and
    Washington.

    We also requested data on consultation timeliness from NMFS regarding
    consultations with the U.S. Army Corps of Engineers, Interior's Bureau of
    Land Management and Bureau of Reclamation, and Agriculture's Forest
    Service in Idaho, Oregon, and Washington for fiscal years 1999 through
    2003. (NMFS had no consultations in Montana with any of the four action
    agencies included in our review.) Timeliness data on consultations for
    this entire period were not readily available from NMFS. According to
    officials knowledgeable about these data, NMFS did not maintain a central
    regional database for consultations data until January 2001. Timeliness
    data on consultations that occurred before that date could be obtained
    from individual field offices; however, these data would not be complete
    and would have to be supplemented with data from the administrative
    record, according to officials knowledgeable about the data. As such, we
    used only the data from the NMFS regional system for the 3-year fiscal
    period 2001 through 2003.1

    To assess the reliability of the timeliness data maintained by NMFS, we
    attempted to compare information contained in the administrative record

    1The NMFS data, however, exclude the first quarter of fiscal year 2001
    because the NMFS regional database was implemented in January 2001.

    Appendix I
    Objectives, Scope, and Methodology

    with that in the database. We did so by asking biologists to discuss with
    us the administrative files for a few consultations they had conducted.
    However, most of the consultations chosen by the NMFS biologists were
    conducted in 1999 before the regional database was established. As such,
    we took further steps to ascertain the reliability of the timeliness data
    maintained in NMFS's regional consultations database. We interviewed an
    official knowledgeable about this database to determine whether timeliness
    data in this system are reasonably complete and accurate. This official
    had reasonable confidence in the data elements we analyzed. We also
    performed data reliability tests on the timeliness elements of this
    database to find missing data, transposed dates, or duplicate records. We
    allowed NMFS officials the opportunity to correct data errors and insert
    missing data. We then calculated error rates for the databases we
    examined; the error rates for fiscal years 2001, 2002, and 2003 were 21,
    19, and 10 percent, respectively. We determined that the timeliness data
    on consultations maintained in the NMFS regional consultations database
    were sufficiently reliable for the purposes of this report, as long as the
    timeliness data are presented in the context of these error rates. NMFS
    officials said that these data should be sufficient to serve as indicators
    of the number and timeliness of consultations.

    We also requested data on consultation timeliness from FWS regarding
    consultations with the U.S. Army Corps of Engineers, Interior's Bureau of
    Land Management and Bureau of Reclamation, and Agriculture's Forest
    Service in Idaho, Montana, Oregon, and Washington for fiscal years 1999
    through 2003. Such timeliness data on consultations were not readily
    available from FWS. During the time of our review, FWS did not maintain a
    central regional database for consultations data; each of the six field
    offices in Idaho, Montana, Oregon, and Washington had developed and
    maintained separate systems for storing consultation data. We interviewed
    officials knowledgeable about these databases and examined the associated
    data dictionary. During the time of our review, five of the six field
    offices in Idaho, Montana, Oregon, and Washington did not consistently
    record a key data point required to calculate timeliness: the date a
    consultation was initiated. They did record the date a consultation
    package was received in their office; however, according to a FWS
    official, the interval between those two dates can sometimes be
    significant. As such, the systems that did not record the date a
    consultation was initiated would yield timeliness data that consistently
    overestimated the time a consultation took to complete. Because these data
    were not reliable enough for our purposes, we did not use those systems
    for our analysis. The only system that did record the date a consultation
    was initiated was,

    Appendix I
    Objectives, Scope, and Methodology

    at the time of our review, the one maintained by the FWS office in
    Portland, Oregon.2 Accordingly, we used this system to analyze timeliness
    for consultations conducted by that FWS office with the U.S. Army Corps of
    Engineers, Interior's Bureau of Land Management and Bureau of Reclamation,
    and Agriculture's Forest Service in Idaho, Oregon, and Washington (the
    vast majority of the Portland office's consultations were in Oregon). From
    this system, we used data for fiscal years 2001 through 2003 to ensure
    consistency with our analysis of NMFS data from the same period.

    To assess the reliability of the timeliness data in the FWS Portland,
    Oregon, office's database, we similarly compared information contained in
    the administrative record with that contained in the database, to a
    limited extent. We examined consultation records selected by biologists
    and found that, in some instances, information in the administrative
    record was not in the database. Additionally, some information was neither
    in the administrative record nor in the database and had to be relayed to
    us by the biologist who worked on the consultation. We determined that the
    best information on a specific consultation was the administrative record,
    coupled with the recollections of the biologist who worked on the
    consultation. However, asking the FWS to provide us with copies of the
    administrative file for numerous records and access to each biologist who
    worked on those consultations seemed unduly burdensome. Accordingly, we
    took further steps to ascertain the accuracy and completeness of the
    timeliness data on consultations maintained in the Portland office's
    database. We interviewed an official knowledgeable about this database to
    determine whether the timeliness data in this system are reasonably
    complete and accurate. This official had reasonable confidence in the data
    elements we analyzed. We also performed data reliability tests on the
    timeliness elements of this database to find missing data, transposed
    dates, or duplicate records. We allowed FWS officials the opportunity to
    correct data errors and insert missing data. We then calculated error
    rates for the databases we examined; the error rates for fiscal years
    2001, 2002, and 2003 were 0, 6, and 14 percent, respectively. We
    determined that the timeliness data on consultations maintained in the FWS
    Portland field office consultation database were sufficiently reliable for
    the purposes of this

    2In March 2003, FWS implemented a three-state database for Idaho, Oregon,
    and Washington, but we did not use it because it contained data for only
    the second half of fiscal year 2003.

    Appendix I
    Objectives, Scope, and Methodology

    report, as long as the timeliness data are presented in the context of
    these error rates.

    To identify improvements to and concerns about the consultation process in
    the four states, we interviewed officials of both Services and the four
    action agencies: the U.S. Army Corps of Engineers, the Bureau of Land
    Management, the Bureau of Reclamation, and the Forest Service. We
    administered-via telephone or in person-a comprehensive survey to a
    nonprobability sample of 66 officials of the Services and the four action
    agencies.3 The practical difficulties of conducting any survey may
    introduce other types of errors, commonly referred to as nonsampling
    errors. For example, differences in how a particular question is
    interpreted, the sources of information available to respondents, or the
    types of people who do not respond can introduce unwanted variability into
    the survey results. We included steps in both the data collection and data
    analysis stages for the purpose of minimizing such nonsampling errors. We
    pretested this survey and, based on the results and comments received
    during pre-testing, made appropriate revisions. To help ensure that
    questions raised by the respondents were addressed similarly by each
    interviewer (i.e., to address inter-rater reliability), we included all of
    the primary interviewers in the pre-tests, and often more than one
    interviewer participated in administering the surveys.

    To ensure appropriate survey coverage, we selected a variety of Service
    and agency field offices to survey based on geographic location, workload,
    and collocation with other offices. At these locations we obtained the
    opinions of officials representing different points of view within the
    consultation process, including fisheries biologists, wildlife biologists,
    program managers, and office managers. These officials included Service
    biologists responsible for working with the four action agencies, and
    action agency biologists responsible for conducting consultations in these
    locations, including action agency officials responsible for the agencies'
    various primary programs--including recreation, timber, and other
    programs. In cases where numerous potential interviewees met our selection
    criteria, we selected among them randomly. The sample of agency officials
    interviewed was not intended to be representative of all the

    3Results from nonprobability samples cannot be used to make inferences
    about a population. This is because, in a nonprobability sample, some
    elements of the population being studied have no chance or an unknown
    chance of being selected as part of the sample.

    Appendix I
    Objectives, Scope, and Methodology

    officials involved in the consultation process in the four states. In
    total, we surveyed 40 biologists and 26 program officials.

    Through our survey we gathered officials' perceptions about consultations,
    based on their experience with them since the late 1990s. The survey
    included questions about what works well in the consultation process,
    whether the process has improved or worsened since the late 1990s, what
    concerns people have about the process, and what improvements, if any,
    have been made to the process. To identify very important concerns, we
    asked respondents to identify, from a list of concerns, any that they
    considered to be "very important," as well as their other concerns that
    did not appear in the list.

    In addition, we conducted open-ended interviews with 143 officials, whom
    we selected because of their geographic locations or their roles in
    consultation. We interviewed officials from the following locations:

    o 	FWS' headquarters in Washington, D.C.; regional office in Portland,
    Oregon; California-Nevada operations office in Sacramento, California; and
    field offices in Boise and Chubbock, Idaho; Helena, Montana; Klamath Falls
    and Portland, Oregon; and Lacey, Spokane, and Wenatchee, Washington;

    o 	NMFS' headquarters in Washington, D.C.; representatives from the
    Northwest Regional office in Seattle, Washington, and Portland, Oregon;
    and field offices in Boise and Salmon, Idaho; and Ellensburg and Lacey,
    Washington;

    o 	the U.S. Army Corps of Engineers' Northwest Division office in
    Portland, Oregon; regulatory office in Helena, Montana; and district
    offices in Portland, Oregon; and Seattle and Walla Walla, Washington;

    o 	the Bureau of Land Management's headquarters in Washington, D.C.; area
    office in Billings, Montana; and field offices in Boise, Challis, Coeur
    D'Alene, Cottonwood, Pocatello, and Salmon, Idaho; Billings and Missoula,
    Montana; Coos Bay, and Klamath Falls, Oregon; and Spokane and Wenatchee,
    Washington;

    o 	the Bureau of Reclamation's headquarters in Lakewood, Colorado; Office
    of Policy in Washington, D.C.; Pacific Northwest regional office in Boise,
    Idaho; Montana area office in Billings, Montana (Great Plains region); and
    Lower Columbia area office in Portland, Oregon; and

    Appendix I
    Objectives, Scope, and Methodology

    o 	the Forest Service's headquarters in Washington, D.C.; regional offices
    in Missoula, Montana, and Portland, Oregon; the ranger district in
    Leavenworth, Washington; district offices in Lost River and Challis,
    Idaho; the Salmon-Challis National Forest, in Salmon, Idaho; the Gallatin
    National Forest in Bozeman, Montana; the Lolo National Forest in Missoula,
    Montana; the Rogue River and Siskiyou National Forests in Medford, Oregon;
    the Gifford Pinchot National Forest in Vancouver, Washington; and the
    Olympic National Forest in Olympia, Washington.

    We also interviewed 44 nonfederal parties, including applicants-
    nonfederal parties seeking federal authorization or funds to conduct an
    activity subject to consultation-and representatives of environmental
    advocacy groups. We identified these interviewees either through a
    referral from a Service or action agency official or through our knowledge
    of their involvement and interest in consultations. The nonfederal
    interviewees included representatives of

    o  port authorities;

    o  local governments;

    o  irrigation districts;

    o 	private industry, including logging, ranching, and oil and gas
    exploration;

    o  environmental groups; and

    o  homeowners.

    From these parties we solicited information on improvements made to the
    consultation process, concerns about the process, and suggestions for
    further improvement.

    We performed our work from November 2002 through December 2003 in
    accordance with generally accepted government auditing standards.

    Appendix II

    Comments from the Department of the Interior

    Note: GAO comments supplementing those in the report text appear at the
    end of this appendix.

    Appendix II
    Comments from the Department of the
    Interior

                                     See comment 1.

                                     See comment 2.

                                     See comment 3.

    Appendix II
    Comments from the Department of the
    Interior

                                     See comment 4.

                                     See comment 5.

    Appendix II
    Comments from the Department of the
    Interior

    Appendix II
    Comments from the Department of the
    Interior

    Appendix II
    Comments from the Department of the
    Interior

                                     See comment 6.

    Appendix II
    Comments from the Department of the
    Interior

                                     See comment 7.

    Appendix II
    Comments from the Department of the
    Interior

                                     See comment 8.

    Appendix II
    Comments from the Department of the
    Interior

    Appendix II
    Comments from the Department of the
    Interior

                                     See comment 9.

                                    See comment 10.

                                    See comment 11.

    Appendix II
    Comments from the Department of the
    Interior

    Appendix II
    Comments from the Department of the
    Interior

                                    See comment 12.

                                    See comment 13.

                                    See comment 14.

    Appendix II
    Comments from the Department of the
    Interior

                                      Appendix II
                          Comments from the Department of the
                                        Interior

    The following are GAO's comments on the Department of the Interior's
    letter dated February 27, 2004.

    GAO Comments We modified the report as appropriate based on the technical
    comments that the Department of the Interior provided us. In addition,
    detailed responses to some of Interior's other comments are provided
    below.

    1.

    2.

    3.

    4.

    5.

    We identified the need to correct some of the data we presented in the
    draft report during the agency comment period and informed FWS of this; we
    have made the appropriate changes to the report.

    We agree and have incorporated additional information on the benefits of
    the consultation process in the report.

    We agree that there may be good reasons for some consultations not to be
    completed within established time frames. We recognized in our draft
    report that some consultations we identified as exceeding time frames may
    have had agreed-upon extensions, and we have incorporated additional
    information to provide some of the reasons for such extensions.

    The draft report does not assert that preconsultation is or should be
    considered a part of the statutory consultation. We are recommending that
    the Department of the Interior and NOAA work with relevant action agencies
    to improve tracking of the level of effort spent in preconsultation
    because, as many of our interviews with agency officials and some of the
    agency comments received on the draft report indicate, the time spent in
    preconsultation is an important component of the consultation process and
    may reduce the length of time spent in formal and informal consultation
    (which the Services consider to have begun once they receive a complete
    biological assessment or similar document). We recognized in the draft
    report that preconsultation may include periods of time when neither the
    Services nor the action agencies are working on a proposed project and
    that, in some cases, information developed during this period may be used
    to support other environmental requirements and therefore cannot be
    attributed solely to the consultation process.

    We agree that the effectiveness of the consultation process for species
    conservation is very important and discuss, in several places in the
    report, indicators and officials' opinions of its effectiveness; we also

    Appendix II
    Comments from the Department of the
    Interior

    recommend that the departments, NOAA, and the Forest Service evaluate the
    effectiveness of any improvements made to the process. Officials with the
    Services told us that they believe that the low number of jeopardy
    opinions indicates that the process is effectively ensuring that federal
    activities are not jeopardizing listed species. In addition, officials
    with the Services and action agencies told us that the consultation
    process, especially time spent in preconsultation, has resulted in better
    projects that have fewer impacts on species or are influenced by the
    consultation process early enough so that any needed project modifications
    cost less than if done later in project development and have minimal or no
    impact on project implementation schedules. However, as later noted in the
    Department of the Interior's comments, there are few data available to
    evaluate the effectiveness of the consultation process overall. While we
    discussed Endangered Species Act section 7(a)(1) responsibilities with
    some officials, we did not evaluate whether agencies were using their
    authorities to carry out programs for the conservation of threatened and
    endangered species, as directed by this section of the act (such programs
    are in addition to the section 7(a)(2) requirement for federal agencies to
    consult on activities that may affect listed species or designated
    critical habitat). We are, therefore, not making a recommendation about
    the use of section 7(a)(1).

    6.We agree and have incorporated additional information about
    consultations completed early in the report.

    7.The point of whether section 7 of the act can be used to "leverage"
    species' recovery would benefit from an official position from the
    Services. As we reported, some action agency officials are concerned that
    the Services are taking consultations too far by requesting that agencies
    implement what the officials perceive are actions intended to recover
    species, not just avoid jeopardy or adverse modification of critical
    habitat.

    8.The draft report recognized the difficulties of tracking the level of
    effort devoted to preconsultation. We are not prescribing a systems
    solution so that the departments, NOAA, and the Forest Service have
    flexibility in identifying a feasible option. Tracking level of effort
    does not necessarily mean precisely tracking the amount of time-down to
    the hour-spent on an individual consultation. One potential alternative is
    to have an information system from which biologists and agency staff could
    select various options to indicate whether they were spending a

    Appendix II
    Comments from the Department of the
    Interior

    minimal amount of time on a consultation (with a definition of "minimal"
    provided such as less than 1 hour a week) or if their involvement was
    moderate or heavy. This information could then be used to track, in
    general terms, the level of effort devoted to proposed actions before
    formal or informal consultation is initiated; it could also be combined
    with the level of effort or time expended on the "official" consultation
    to determine the magnitude of the entire consultation process.

    9.We believe the report does reflect interest and concerns from the
    Services and action agencies about the effectiveness of the consultation
    process. As we discussed in comment 5, some officials said that the
    consultation process is resulting in projects that have less effect on
    species and habitat. In addition, officials with the Services believe the
    process is working effectively to protect species because so few projects
    are found to jeopardize a listed species. Conversely, environmental
    advocates raised concerns about whether the process adequately protected
    species. However, as the Department of the Interior notes, there are few
    data available to comprehensively evaluate the effectiveness of the
    consultation process, although we recommend that the departments, NOAA,
    and the Forest Service evaluate the efficiency and effectiveness of any
    efforts to improve the process.

    10. We asked the action agencies included in our review for their data on
    the consultation process. While some action agencies maintained some data
    related to consultations, the data did not always track consultation as a
    discrete activity and, therefore, were not useful for the purposes of our
    evaluation.

    11. We recognize the distinction in the regulations regarding informal
    consultation, but in practice the Services do not consider informal
    consultation "initiated" until they receive a complete biological
    assessment or similar document. In our report, preconsultation is being
    used to describe all activities occurring before a formal or informal
    consultation is initiated by the Services.

    12. We agree that information on the causes of missed time frames would be
    useful information and is something for the departments, NOAA, and the
    Forest Service to consider in identifying data management options for
    tracking the entire consultation process.

    Appendix II
    Comments from the Department of the
    Interior

    13. We believe training is included in our recommendations regarding
    clarifying disagreements and disseminating information quickly and
    refining guidance; how the departments, NOAA, and the Forest Service
    choose to disseminate such information and guidance could include
    providing additional training courses. In addition, several of the
    Services and action agencies reported that they were in the process of
    developing and/or refining consultation courses.

    14. We agree that providing transparency of federal actions is an
    important element for maintaining the confidence of the public. However,
    as we discuss in the report, the Endangered Species Act does not provide
    for public involvement in the consultations process as it does for many
    other components of the act. Making draft biological opinions available to
    the public may be something that the departments, NOAA, and the Forest
    Service may want to consider studying.

                                      Appendix III

                        Comments from the Department of the Army

    Note: GAO comments supplementing those in the report text appear at the
    end of this appendix.

    Appendix III
    Comments from the Department of the Army

    Appendix III
    Comments from the Department of the Army

    Appendix III
    Comments from the Department of the Army

    Appendix III
    Comments from the Department of the Army

                                      Appendix III
                        Comments from the Department of the Army

    The following are GAO's comments on the Department of the Army's letter
    dated February 19, 2004.

    GAO Comment	The Army generally concurred with our recommendations but
    suggested that we clarify and strengthen them. See our response to their
    suggestions in the "Agency Comments and Our Evaluation" section in this
    report.

    Appendix IV

    Comments from the National Oceanic and Atmospheric Administration

    Note: GAO comments supplementing those in the report text appear at the
    end of this appendix.

    Appendix IV
    Comments from the National Oceanic and
    Atmospheric Administration

    Appendix IV
    Comments from the National Oceanic and
    Atmospheric Administration

                                     See comment 1.

                                     See comment 2.

    Appendix IV
    Comments from the National Oceanic and
    Atmospheric Administration

                                     See comment 3.

    Appendix IV
    Comments from the National Oceanic and
    Atmospheric Administration

                                     See comment 4.

                                      Appendix IV
                         Comments from the National Oceanic and
                               Atmospheric Administration

    The following are GAO's comments on the National Oceanic and Atmospheric
    Administration's letter dated February 26, 2004.

    GAO Comments	We modified the report as appropriate based on the technical
    comments that NOAA provided us. In addition, detailed responses to some of
    NOAA's other comments are provided below.

    1.	We recognize that PCTS tracks preconsultation activities, but it does
    not track the level of effort devoted to preconsultation, which is the
    intent of our recommendation. However, PCTS may be a good starting point
    for identifying possible data management solutions.

    2.	We recognize the potential benefits of preconsultation, and have
    incorporated additional information on these benefits in the report.

    3.	We recognize the difficulties of determining federal discretion in some
    cases, and have incorporated information on this issue in the report.

    4.	We recognize that many of the agencies have guidance and
    informationsharing mechanisms in place or under development. Given the
    disagreements that still exist about the process between the Services and
    action agencies, we intend our recommendation to ensure that the
    departments, NOAA, and the Forest Service coordinate these efforts to
    ensure consistency in interpretations and guidance provided, and, ideally,
    to maximize scarce resources by sharing and leveraging each others'
    progress.

                                       Appendix V

                            Comments from the Forest Service

    Note: GAO comments supplementing those in the report text appear at the
    end of this appendix.

    Appendix V
    Comments from the Forest Service

                                     See comment 1.

                                     See comment 2.

                                     See comment 3.

    Appendix V
    Comments from the Forest Service

                                     See comment 4.

                                     See comment 5.

                                     See comment 6.

    Appendix V
    Comments from the Forest Service

                                     See comment 7.

                                     See comment 8.

    Appendix V
    Comments from the Forest Service

    Appendix V
    Comments from the Forest Service

                                     See comment 9.

    Appendix V
    Comments from the Forest Service

                                       Appendix V
                            Comments from the Forest Service

    The following are GAO's comments on the Forest Service's letter dated
    February 27, 2004.

    GAO Comments	We modified the report based on the technical comments that
    the Forest Service provided us, as appropriate. In addition, discussed
    below are GAO's corresponding detailed responses to some of Forest
    Service's other comments.

    1.

    2.

    3.

    4.

    5.

    6.

    7.

    As we noted in comment 2 in our response to the Department of the
    Interior, we agree and have incorporated additional information on the
    benefits of the consultation process in the report.

    As we noted in comment 3 in our response to the Department of the
    Interior, we have incorporated additional information about the reasons
    for extensions to time frames for the consultation process.

    We agree that the timeliness of the entire consultation process will be
    affected by the adequacy of the information provided to the Services.
    However, given that the Services initiate formal or informal consultation
    only when they have a complete biological assessment or similar document,
    the additional time to provide adequate information would be considered a
    part of preconsultation and not subject to the established time frames for
    formal or informal consultations.

    As we noted in comment 4 in our response to the Department of the
    Interior, the report does not assert that preconsultation should be
    considered a part of the statutory consultation.

    As we noted in comment 2 in our response to NOAA, we have incorporated
    information on the value of preconsultation in the report.

    As discussed in comment 5 in our response to the Department of the
    Interior, we agree that the effectiveness of the consultation process for
    species conservation is very important; however, we did not evaluate
    whether agencies were using their authorities to carry out programs for
    the conservation of threatened and endangered species, as directed by
    section 7(a)(1) of the Endangered Species Act.

    As we noted in comment 8 in our response to the Department of the
    Interior, we recognize the difficulties of tracking the level of effort

    Appendix V
    Comments from the Forest Service

    devoted to preconsultation and are providing the agencies flexibility in
    identifying a feasible option to do so.

    8.	We believe the recommendation is still needed to resolve disagreements
    about when consultation is needed. Based on our survey and interviews,
    disagreements about when consultation is necessary was one of the more
    significant concerns identified. Hence, the Services and the action
    agencies should identify and resolve the most persistent disagreements in
    this regard and disseminate clarification quickly to avert further
    disagreements. If the Services and action agencies cannot resolve their
    differences, then Congressional direction may be necessary. The Services
    and action agencies should be addressing such disagreements continuously
    as they arise given the new and unique situations that constantly present
    themselves.

    9.	As we noted in comment 6 in our response to the Department of the
    Interior, we have incorporated additional information about consultations
    completed early in the report.

    Appendix VI

                         GAO Contact and Staff Acknowledgments

                        GAO Contact Trish McClure (202) 512-6318

    Staff 	In addition to the individual named above, Bob Crystal, Jennifer
    Duncan, Doreen Stolzenberg Feldman, Jaelith Hall-Rivera, Barbara Johnson,

    Acknowledgments	Cynthia Norris, Tony Padilla, Judy Pagano, Jeff Rueckhaus,
    and Pamela Tumler made key contributions to this report.

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