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 [email protected].

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
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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.

GAO's Mission	The General Accounting Office, the audit, evaluation and
investigative arm of Congress, exists to support Congress in meeting its
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Congress make informed oversight, policy, and funding decisions. GAO's
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