Endangered Species Act: Successes and Challenges in Agency	 
Collaboration and the Use of Scientific Information in the	 
Decision Making Process (19-MAY-05, GAO-05-732T).		 
                                                                 
The purpose of the Endangered Species Act is to conserve	 
endangered and threatened species and the ecosystems upon which  
they depend. This law currently protects more than 1,260 animal  
and plant species. Within the Department of the Interior, the	 
Fish and Wildlife Service implements and enforces the act. In	 
addition, all federal agencies, such as the Department of Defense
and the Bureau of Land Management, must ensure that their	 
activities do not jeopardize a protected species' continued	 
existence or adversely modify or destroy habitat that has been	 
designated as critical to its survival. The Endangered Species	 
Act and its implementation can be controversial when there are	 
conflicting uses for a natural resource as, for example, when	 
timber on federal lands is both habitat for endangered and	 
threatened species and a valuable commodity to be harvested.	 
Conflicts also occur over the adequacy or interpretation of	 
scientific information in making species protection decisions.	 
GAO has issued numerous reports on the implementation of the	 
Endangered Species Act. This testimony is based primarily on four
of these reports and addresses (1) collaboration among federal	 
agencies to conserve threatened and endangered species and (2)	 
utilization of scientific information by the Fish and Wildlife	 
Service.							 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-05-732T					        
    ACCNO:   A24418						        
  TITLE:     Endangered Species Act: Successes and Challenges in      
Agency Collaboration and the Use of Scientific Information in the
Decision Making Process 					 
     DATE:   05/19/2005 
  SUBJECT:   Decision making					 
	     Endangered animals 				 
	     Federal funds					 
	     Interagency relations				 
	     Intergovernmental relations			 
	     Strategic planning 				 
	     Wildlife conservation				 
	     Wildlife management				 
	     Environmental law					 
	     Natural resources					 
	     Land management					 
	     Environmental research				 
	     Environmental protection				 

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GAO-05-732T

United States Government Accountability Office

GAO Testimony

Before the Subcommittee on Fisheries, Wildlife and Water, Committee on
Environment and Public Works, United States Senate

For Release on Delivery

9:30am Thursday May 19, 2005 ENDANGERED SPECIES

                                      ACT

Successes and Challenges in Agency Collaboration and the Use of Scientific
                   Information in the Decision Making Process

Statement of Robin M. Nazzaro, Director Natural Resources and Environment

GAO-05-732T

May 19, 2005

ENDANGERED SPECIES ACT

Successes and Challenges in Agency Collaboration and the Use of Scientific
Information in the Decision Making Process

What GAO Found

We have found that effective agency collaboration can reduce conflict over
competing uses of natural resources and improve agencies' abilities to
protect species while carrying out other mission-related activities. While
we have noted several instances of effective interagency cooperation, we
have also discovered that agencies could be doing more to work together to
find effective species protections. For example, at one military facility,
Air Force officials worked with the Fish and Wildlife Service and others
to entice the endangered Sonoran pronghorn-a species similar in appearance
to antelope-away from military training areas. As a result, the agencies
were able to minimize the impact of species protections on training
exercises. Previously, Air Force officials had reported that 32 percent of
their live-fire missions were either cancelled or moved due to the
presence of the pronghorn. However, we have found that there are obstacles
to further agency collaboration that need to be addressed.

We have found that the Fish and Wildlife Service generally used the best
available information in key endangered species decisions, although the
agency was not always integrating new research into ongoing species
management decisions. For example, since the Bureau of Land Management
eliminated sheep grazing on more than 800,000 acres in tortoise habitat in
California, neither the Bureau or the Fish and Wildlife Service had
ensured that necessary research was conducted to assess whether this
action had benefited the tortoise. Unless managers link research findings
to recovery actions, they cannot develop a scientific basis to make
decisions about whether land use restrictions-such as limiting grazing or
other activities in tortoise habitat-should remain unchanged, be
strengthened, or whether alternative actions are more appropriate.
Developing such information is important as some of the restrictions
imposed to protect the tortoise have been controversial because of their
broad impact and some affected by the restrictions have questioned whether
they are necessary for the tortoise's recovery.

                 United States Government Accountability Office

This is a work of the U.S. government and is not subject to copyright
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separately.

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss our work related to the
Endangered Species Act. As you know, the purpose of the act is to conserve
endangered and threatened species and the ecosystems upon which they
depend. This law currently protects more than 1,260 animal and plant
species. Under the act, no one may "take" a protected species, which is
defined as harming, harassing, pursuing, shooting, wounding, killing,
trapping, hunting, capturing, or collecting, or attempting any such
conduct. In addition, federal agencies and federally authorized activities
may not jeopardize a species' continued existence or adversely modify
habitat deemed critical for a species' survival. The U.S. Fish and
Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)-
collectively referred to as the Services-are responsible for working with
other federal agencies, tribal, state, and local governments, private
companies, and citizens to ensure that species are appropriately
protected. In addition, all federal agencies are directed by the act to
utilize their authorities to conserve threatened and endangered species.

The act requires FWS and NMFS to list as endangered any species facing
extinction and to list as threatened any species likely to become
endangered in the foreseeable future. When a species is listed, the act
also generally requires the agencies to designate critical habitat-habitat
essential to a species' conservation-because the loss of habitat is often
the principal cause of species decline. FWS and NMFS are also required to
develop a plan to recover the listed species to the point that they are no
longer endangered or threatened, an achievement marked by their removal,
or delisting, from the list of endangered or threatened species.

The act's success in protecting species depends on one's point of view.
Some believe it has been successful because in the face of chronic
underfunding only 9 species have gone extinct since the act's inception,
others say it has been a failure because only 9 species have been
recovered. Advocates on both sides of the argument would likely agree,
however, that the Endangered Species Act and its implementation have
served as lightning rods in the ongoing national debate concerning the
tradeoffs that must often be

made between economic, social, and environmental values. The tradeoffs
required to implement the act were vividly apparent in 1978, when the
Supreme Court ruled that construction of the Tellico Dam could not be
completed because doing so would jeopardize the continued existence of the
endangered snail darter-a species of fish.1 The dam, which has since been
completed,2 is located on the Little Tennessee River and provides flood
control, hydropower, and water supply. In this case, the Court ruled that
the Endangered Species Act explicitly prohibits activities that would
jeopardize the continued existence of an endangered species or result in
the destruction or modification of its habitat, and stated that the act
represents a congressional decision to require agencies to give greater
priority to the protection of endangered species than to their other
missions. Under the Court's decision, federal agencies generally are
prohibited from authorizing, funding, or carrying out actions, such as dam
construction, permitting timber harvesting and livestock grazing, and
wetland dredging, if doing so would jeopardize the continued existence of
any endangered or threatened species or destroy or adversely modify their
critical habitats.

The legacy of this decision continues to this day as federal agencies
struggle to balance their obligation to protect species and carry out
other mission-related activities that often involve ensuring industries,
ranchers, farmers, recreational enthusiasts, tourists, and others,
appropriate access to and use of the very natural resources on which those
species depend. One prominent recent example is the federally-operated
Klamath Project-dams, reservoirs, and associated facilities-that sits on
the California-Oregon border. Here, under extreme drought conditions,
several federal agencies-including the Services and the Bureau of
Reclamation-are trying to balance the water needs of irrigators and others
who receive water from the project, and threatened and endangered fish,
which must have sufficient water to survive. In 2002, thousands of fish
died while water was delivered for agricultural irrigation; the prior
year, farmers experienced crop

3

losses while water was used to maintain stream flows for fish. Another
prominent

1 Tenn.Valley Auth. v. Hill, 437 U.S. 153 (1978).
2 Legislation, passed in 1979, allowed for completion of the Tellico Dam.
3 For a more comprehensive assessment of the status of the nation's
freshwater supply see U.S. General
Accounting Office, Freshwater Supply: States' Views of How Federal
Agencies Could Help Them Meet the
Challenges of Expected Shortages, GAO-03-514 (Washington, D.C.: July 9,
2003).

example involved the threatened Northern spotted owl. In the early 1990s,
timber sales on federal lands that are habitat for the Northern spotted
owl were brought to a virtual halt by federal court injunctions. In
various rulings, the federal courts enjoined the Forest Service and Bureau
of Land Management from selling timber until they addressed issues related
to protecting the habitat of the owl.4

More recently, controversies surrounding the act have centered on the
adequacy of the scientific information used to make decisions about
whether and how to list species. Just in the past few months sparks have
flown in response to scientific decisions concerning the Florida panther,
the Preble's meadow jumping mouse, and the greater sage grouse. In the
first case, FWS conceded weaknesses in the data used to craft some of its
plans to protect the endangered panther. While critics of FWS claim the
agency's use of faulty information was politically motivated, FWS
officials defend it as an honest mistake made in the context of an
ever-evolving body of knowledge. In the case of the Preble's mouse, FWS
announced in January 2005 that it will propose removing the mouse from the
endangered species list because new research indicates that it is
genetically not a separate subspecies of meadow jumping mouse as
previously thought. Critics of the act cite this as evidence that the act
does not require sufficient scientific evidence before a species is
listed. Finally, FWS also recently announced that it will not place the
sage grouse on the endangered species list. Critics of the decision are
concerned that politics interfered with a scientifically justified
decision to list the species. FWS claims that the decision was the result
of an extensive review of scientific data and analysis.

While there are no simple answers to the conflicts and controversies
surrounding the act, we believe that the federal agencies responsible for
managing endangered species and their habitats can be more effective in
how they manage these conflicts or potentially avoid conflicts altogether.
We have issued more than 15 reports in the past 10 years addressing how
the Endangered Species Act is being implemented. (These reports are listed
in Appendix I along with other GAO reports that discuss the effect of the
act on

4 For a fuller account of this controversy and efforts to resolve it, see
U.S. General Accounting Office, Ecosystem Planning: Northwest Forest and
Interior Columbia River Basin Plans Demonstrate Improvements in Land-Use
Planning, GAO/RCED-99-64 (Washington, D.C.: May 26, 1999).

other programs). Today, I am going to discuss our work on two of the major
issues currently being debated concerning the Endangered Species Act-the
difficulty of balancing species needs with other resource uses and the use
of science in implementing the act. Specifically, this testimony addresses
(1) collaboration among federal agencies to conserve threatened and
endangered species and (2) utilization of scientific information by FWS in
key Endangered Species Act decisions.

This testimony is based primarily on four previously issued reports. In
general, we did not perform additional audit work in preparing this
testimony. We made recommendations in these four reports and have updated
the status of agencies' efforts to implement our recommendations. Our work
was conducted in accordance with generally accepted government auditing
standards.

Summary

In summary, we found that federal agencies have taken steps to improve
collaboration as a way to reduce conflicts that often occur between
species protections and other resource uses, but that more could be done
to promote routine use of collaboration and clarify agencies'
responsibilities under the Endangered Species Act. In September 2003, we
reported on efforts taken by the Department of Defense (DOD) to coordinate
with other federal land managers in order to reduce the impact of species
protections on military activities. We found several cases where such
efforts were successful. For example, at the Barry M. Goldwater range in
Arizona, Air Force officials worked with officials at FWS and the National
Park Service to enhance food sources for the endangered Sonoran pronghorn
in locations away from military training areas. As a result, the Air Force
was able to minimize the impact of restrictions on training missions due
to the presence of the pronghorn. However, such cases were few and far
between because, among other things, there were no procedures or
centralized information sources for facilitating such collaboration. In
March 2004, we reported on collaboration that takes place pursuant to
section 7(a)(2) of the act-referred to as the consultation process-in the
Pacific Northwest. In this area, large numbers of protected species and

vast amounts of federal land conspire to make balancing species protection
and resource use a contentious endeavor. We found that steps the Services
and other federal agencies had taken made the consultation process run
smoother and contributed to improved interagency relationships. However,
some problems have persisted. For example, some agencies disagree with the
Services about when consultation is necessary and how much analysis is
required to determine potential impacts on protected species. In each of
these reports, we made recommendations intended to further improve
collaboration among federal agencies with regard to balancing species
protections and other resource uses, and-in the March 2004 report-to
resolve disagreements about the consultations process. DOD and FWS have
begun discussing an implementation strategy to improve collaboration
regarding species protection on military and other federal lands and
development of a training program. With regard to the consultation
process, while FWS and NMFS have continued to take steps to expand their
collaboration processes, the agencies did not believe that disagreements
about the consultation process require additional steps. They believe that
current training and guidance is sufficient to address questions about the
process.

With regard to the use of science, we have found that FWS generally used
the best available information in key Endangered Species Act decisions,
although the agency was not always integrating new research into ongoing
species management decisions. In addition, we identified concerns with the
adequacy of the information available to make critical habitat decisions.
In December 2002, we reported on many aspects of the decision making for
species protections regarding the Mojave Desert tortoise. We found that
the decision to list the tortoise as threatened, its critical habitat
designation, and the recommended steps in the species' recovery plan, were
based on the best available information. However, despite over $100
million in expenditures on recovery actions and research over the past 25
years, it is still unclear what the status of the tortoise is and what
effect, if any, recovery actions are having on the species because
research has not been coordinated in a way to provide essential management
information. Such information is critically important as some of the
protective actions, such as restrictions on grazing and off road vehicle
use, are vigorously opposed by interest groups who

question whether they are necessary for the tortoise's recovery.
Accordingly, we recommended that FWS better link land management decisions
with research results to ensure that conservation actions and land use
restrictions actually benefit the tortoise. In response, FWS recently
established a new office with a tortoise recovery coordinator and plans to
create an advisory committee to ensure that monitoring and recovery
actions are fed back into management decisions. In August 2003, we found
that, similar to the decision making regarding the tortoise, FWS decisions
about listing species for protection under the act were generally based on
the best available information. However, while most critical habitat
designations also appeared to be based on the best available information,
there were concerns about the adequacy of the information available at the
time these decisions are made. Specifically, critical habitat decisions
require detailed information of a species' life history and habitat needs
and the economic impacts of such decisions-information that is often not
available and that FWS is unable to gather before it is obligated under
the act to make the decision. As a result, we recommended that the
Secretary of the Interior clarify how and when critical habitat should be
designated and identify if any policy, regulatory, or legislative changes
are required to enable the department to make better informed
designations. FWS has not responded to our recommendation.

Collaborating to Protect Endangered Species

At the heart of many of the controversies surrounding the Endangered
Species Act is the competition for natural resources-competition between
the needs of threatened and endangered species and resource extraction
industries, land owners, and other users of the natural resources on which
those species depend. Our work has largely focused on the challenges that
agencies face in protecting species while carrying out their other
mission-related related responsibilities, some of which could have a
negative impact on protected species. While our work has highlighted
positive examples where collaboration between federal agencies has reduced
conflict, there is still room for improvement.

Collaboration Can Help the Military Sustain Critical Functions While
Protecting Endangered Species

We saw the importance of collaboration among federal agencies in our work
evaluating the protection of threatened and endangered species and habitat
on military installations in the United States. Many DOD and other federal
agency officials have recognized that military lands often provide some of
the finest remaining examples of rare wildlife habitat for protected
species. In fact, more than 300 threatened or endangered species inhabit
military lands. However, DOD officials are concerned that the presence of
protected species may constrain essential military training. DOD officials
have identified the Endangered Species Act, along with other factors such
as competition for air space and urban growth around military
installations, as issues affecting or having the potential

                                       5

to affect military training and readiness.

In September 2003,6 we issued a report on the extent to which DOD and
other federal land management agencies are cooperatively managing the
protection of endangered species affecting military training ranges, and
the factors that can limit such collaboration. We found several cases
where DOD and other federal land managers have entered into cooperative
agreements that have benefited both the species and the military. For
example, collaboration among federal agencies around the Air Force's Barry
M. Goldwater Range in Arizona, minimized the impact of restrictions on
training exercises that were necessary to protect the endangered Sonoran
pronghorn (a species similar in appearance to an antelope). Previously,
Air Force officials reported that 32 percent of their live-fire missions
were either cancelled or moved due to the presence of the pronghorn. Air
Force officials worked with FWS and National Park Service officials to
jointly fund forage enhancement plots, which provided food sources for the
Sonoran

5 U. S. General Accounting Office, Military Training: DOD Lacks a
Comprehensive Plan to Manage
Encroachment on Training Ranges, GAO-02-614 (Washington, D.C.: June 11,
2002). See also U.S. General
Accounting Office, Military Training: DOD Approach to Managing
Encroachment on Training Ranges
Still Evolving, GAO-03-621T (Washington, D.C.: April 2, 2003); and U.S.
General Accounting Office,
Military Training: DOD Needs a Comprehensive Plan to Manage Encroachment
on Training
Ranges, GAO-02-727T (Washington, D.C.: May 16, 2002).
6 U.S. General Accounting Office, Military Training: Implementation
Strategy Needed to Increase
Interagency Management for Endangered Species Affecting Training Ranges,
GAO-03-976 (Washington
D.C.: September 29, 2003).

pronghorn. The plots enticed the pronghorn to an adjacent national
wildlife refuge and away from military training areas and, as a result,
minimized the impact of restrictions on training missions.

However, the instances of collaboration between DOD and the Departments of
the Interior and Agriculture were limited. Although the departments have
entered into memorandums of understanding that contain specific actions to
be taken to implement cooperative management-such as forming interagency
working groups, identifying geographic regions for species management, and
identifying reporting requirements- many of the specific actions in these
agreements were never fully implemented and most agreements had expired.
When there were examples of cooperative management efforts between DOD and
other federal land managers, they were often initiated in response to a
crisis, such as a marked decline in a species' population or land-use
restrictions that significantly impacted federal land managers' abilities
to carry out their missions. The Departments of Defense, the Interior, and
Agriculture identified a number of factors that can limit interagency
cooperative management for endangered species affecting military training
ranges. In addition to the absence of a shared sense of crisis among
federal land managers, other obstacles to agency collaboration included
limited agency interaction, resource constraints, lack of land manager
training and experience, and the lack of centralized or otherwise easily
accessible sources of information.

In our September 2003 report, we recommended that the Secretaries of
Defense, the Interior, and Agriculture develop and implement an
interagency strategy, a comprehensive training program, and a centralized
data source for cooperative management efforts. The departments concurred
on the need to improve interagency cooperation. The Department of Defense,
FWS, and others have initiated plans for an interagency strategy, training
program, and information sharing mechanisms.

Collaboration Can Help Reduce the Contentiousness of the Consultation
Process

Collaboration is central to the consultation process required under
section 7(a)(2) of the Endangered Species Act, where federal agency
officials must jointly assess the potential impacts of agency activities
on protected species. The process can get contentious, however, because it
sometimes pits officials at the Services against officials from other
agencies who are attempting to carry out typical agency activities. For
example, the process can become difficult when an agency such as the Corps
of Engineers is planning an activity in accordance with its mission to
support navigation in the nation's waterways, such as issuing permits for
dock construction, and the Services recommend project changes in order to
meet the requirements of the Endangered Species Act. Such changes can
impact the nature of the original project, and add to the time and cost
necessary to complete what some agency officials described as seemingly
benign or insignificant activities.

We issued a report in March 2004 that evaluated the consultation process
in the northwestern United States.7 We were asked to evaluate the
consultation process in this region because of persistent concerns about
the time and cost that consultation added to federal activities and
activities that are federally-permitted or funded. In the northwest United
States, the consultation process is a prominent feature of federal land
management because of the region's combination of large areas of federal
land and significant numbers of listed species. Endangered or threatened
species in this region include the Northern spotted owl, grizzly bear,
Canada lynx, bull trout, and various species of salmon.

Between 1997 and 2000, 25 species in the northwest were identified for
protection under the Endangered Species Act. This prompted concerns about
the consultation process because many projects in the region were delayed,
sometimes for years, because of the

7 U.S. General Accounting Office, Endangered Species: More Federal
Management Attention Is Needed to Improve the Consultation Process,
GAO-04-93 (Washington, D.C.: Mar. 19, 2004). See also U.S. General
Accounting Office, Endangered Species: Despite Consultation Improvements
Efforts in the Pacific Northwest, Concerns Persist about the Process,
GAO-03-949T (Washington, D.C.: June 25, 2003).

Services' inability to address the associated workload increases. For
example, according to a local community representative, before salmon were
listed for protection in the late 1990s, the Corps of Engineers'
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. Since salmon were listed,
the Corps must consult with NMFS when issuing these permits. This
representative said that, as a result, the timeframes for permits have
increased to about 24 months and permitting costs have increased to about
33 percent of construction costs.

We found that, in response to concerns about the consultation process, the
Services and other federal agencies had taken steps in three general
categories to make the consultation process more collaborative and
efficient.

o  	The Services and other federal agencies took steps to facilitate
collaboration among their staffs so that disagreements about species
protections and project modifications could be resolved before they slowed
down the consultation process. Officials at the agencies cited several
benefits of these steps such as increased trust between the Services and
other agencies, better communication, and earlier involvement in projects,
which many officials emphasized as important for consultations to run
efficiently.

o  	The Services and other federal agencies also developed approaches to
reduce the consultation workload, such as including multiple related
activities in a single consultation. According to officials, this has
increased the efficiency of the consultation process and enabled the
agencies to deal more quickly with activities for which the effects on
species are known.

o  	The Services and other federal agencies took 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. For example, to address disagreements
between the Services and other federal agencies, the Services issued
guidance on how to assess the effects of right-of-way permits on protected
species.

Despite efforts to improve the consultation process, officials with the
Services and other federal agencies still have concerns about two key
issues. First, officials at the agencies are still concerned about
workload. While staff levels have increased in recent years, increases in
personnel have been outpaced by the increasing number and complexity of
consultations. Officials told us that more activities are going through
the consultation process than before and that projects are becoming more
complex, requiring greater analysis and staff time to identify potential
impacts on species and any necessary protections. Second, officials at the
Services and other federal agencies sometimes disagree about the extent to
which consultation is necessary. Some 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 protected
species, including in situations where they feel consultation is
unnecessary. Officials at the Services also cited the fear of litigation,
and said they believed that they were simply fulfilling their
responsibilities under the act to consult on projects that may affect
protected species regardless of the level of the potential impact. The
result is a continued sense of frustration among agency officials
regarding what protections are necessary under the Endangered Species Act
and the time it takes to reach agreements in agency consultations.

Because many concerns about the consultation process center on its
timeliness, we recommended in our March 2004 report that FWS and NMFS work
with other agencies to determine how best to capture data on the level of
effort devoted to the consultation process and use this information to
manage the process. We further recommended 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 resolve
disagreements about when consultation is required and how detailed an
analysis is necessary. Both FWS and NMFS have taken steps to improve
information management of the consultation process, although it is unclear
whether they have determined how to capture the level of effort devoted to
the process-admittedly, a difficult task. While FWS and NMFS have
continued to take steps to expand collaborative processes, in an update on
their actions, the agencies stated that they did not believe that
disagreements

about the consultation process require the adoption of additional
measures. They believe that the current training and guidance on
consultation is sufficient to address questions about the process.

Using Scientific Information to Make Decisions

Scientific information is a key component of most decisions regarding the
implementation of the Endangered Species Act. Our work has largely focused
on how FWS has used information in key decisions about endangered species,
such as listing threatened and endangered species, designating critical
habitat, and developing species recovery plans. While we found that FWS
has generally done a good job using available information to make
decisions, there is still room for improvement.

While Many Key Protection Decisions for the Mojave Desert Tortoise Were
Based on the Best Available Information, FWS Has Not Always Integrated
Research Into Ongoing Recovery Decisions

In a December 2002 report,8 we found that key FWS decisions were supported
by the best available information. We relied on experts identified for us
by the National Academy of Sciences to review FWS listing, critical
habitat, and recovery plan decisions for the Mojave Desert tortoise. Based
on their review of the information available at the time the respective
decisions were made, the scientists we consulted agreed that the listing
of the desert tortoise in 1990, the critical habitat designation, and the
recommendations in the recovery plan were reasonable. These scientists
recognized that, as is often the case with such decisions, little
published data on the species were available. However, they agreed that
FWS's decisions were appropriate and consistent with their understanding
of the agency's responsibilities under the act.

Our report, however, was less positive with regard to what FWS had learned
about the tortoise since their decisions were made. We found that while
over $100 million (in

8 U.S. General Accounting Office, Endangered Species: Research Strategy
and Long-Term Monitoring Needed for the Mojave Desert Tortoise Recovery
Program, GAO-03-23 (Washington, D.C.: Dec. 9, 2002).

constant 2001 dollars) had been spent on research and recovery efforts
over the past 25 years, there was still little known about the species'
status, the key threats to its survival, or the effectiveness of
management actions implemented to help the tortoise. While many actions
intended to protect the tortoise have been taken, necessary research had
not been conducted to determine whether these actions were effective. For
example, the Bureau of Land Management prohibited sheep grazing on more
than 800,000 acres of tortoise habitat in California and implemented
restrictions on off-road vehicles in tortoise habitat. While individual
studies had been conducted on these issues, the research had not been
coordinated in a way to answer questions about the impact of such actions
on tortoise populations or habitat. Determining the effectiveness of such
protective actions is important because they affect large areas of land,
were recommended on the basis of limited published data, and in some
cases, are vigorously opposed by certain interest groups. Unless managers
link research findings to assessments of recovery actions that have been
implemented, they cannot make determinations based on scientific
information as to whether land use restrictions should remain unchanged,
be strengthened, or whether alternative actions are more appropriate.

To ensure that the most effective actions are taken to protect the
tortoise, we recommended in our December 2002 report that the Secretary of
the Interior develop and implement a coordinated research strategy for
linking land management decisions with research results and periodically
reassess the recovery plan for the tortoise. In response, FWS recently
established a new office with a tortoise recovery coordinator and three
field coordinators who will help coordinate research and management. In
addition, the agency plans to create an advisory committee to ensure that
monitoring and recovery actions are fed back into management decisions.
FWS previously utilized an expert committee to review the recovery plan
for the tortoise. Although the committee found that the plan was
fundamentally sound, it similarly recommended that ties between research
and management be strengthened.

Species Listing and Critical Habitat Decisions Are Based On Best Available
Information, but Concerns Remain About the Adequacy of that Information

Recent concerns about FWS listing and critical habitat decisions have
focused on the role that "sound science" plays in the decision making
process and whether FWS properly interprets scientific data and bases its
decisions on adequate scientific information. Critics of FWS decisions
warn that improper listing and critical habitat decisions may disrupt
social and economic activities and divert funding and attention away from
species truly facing extinction. The Endangered Species Act requires FWS
to use the best available information when making decisions to list
species or designate critical habitat. It is important to note that the
"best available" standard does not obligate FWS to conduct studies to
obtain new data, but prohibits the agency from ignoring available
information. FWS goes through an extensive series of procedural steps that
involve public participation and review by outside experts (i.e., peer
reviewers) to help ensure that it collects relevant data and uses it
appropriately.

In August 2003, we reported on FWS's use of available scientific
information in making

9

listing and critical habitat decisions. Because of the number of species
decisions to analyze and the inherent difficulties in independently
assessing available scientific information and determining what
constitutes a scientific sound decision, we identified several proxies for
assessing the reliability of FWS listing and critical habitat decisions.
These proxies entailed reviews of:

o  	The procedures FWS follows for gathering information and internally
reviewing decision documents;

o  Comments from peer reviewers on listing and critical habitat decisions;

o  The outcomes of legal challenges to these decisions; and

o  	Subsequent changes to FWS listing and critical habitat decisions, such
as after additional scientific information had been gathered.

9 U.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).

In each case, we determined that, overall, FWS species listing and
critical habitat decisions were based on the best available information.
However, experts and others knowledgeable about the Endangered Species Act
have expressed concerns about FWS's ability to designate critical habitat
for some listed species given the amount of information available on the
species' habitat needs at the time decisions must be made- at the time of
listing or shortly thereafter. Unlike listing decisions that are more
straightforward-requiring FWS to answer only a "yes or no" question as to
whether a species warrants listing-critical habitat decisions often
require more detailed knowledge of a species' life history and habitat
needs and call for FWS to factor in the species' special management needs
as well as the economic impacts of the designation. FWS officials,
experts, and others with whom we spoke agreed that the amount of
scientific information available when they are required to designate
critical habitat is limited and often affects FWS's ability to adequately
define the habitat essential to the species' conservation. While some
interested parties stated that FWS designated areas too broadly and
included lands unsuitable for several species, others said that FWS did
not designate enough habitat for some listed species. According to FWS
officials, the resource and time constraints under which its scientists
work often preclude them from collecting new information and, as a result,
their ability to produce adequate critical habitat designations may be
limited by the information available for some species. We found that most
scientific disagreements surrounding recent critical habitat designations
concerned whether the area chosen as critical habitat is sufficiently
defined or whether the overall information used to support the designation
is adequate. In order to increase the amount of information available on
which to base critical habitat designations, FWS and others, including the
National Research Council, have recommended delaying

                                       10

designations until recovery plans are developed.

We also reported that FWS's critical habitat program faced a serious
crisis that extended well beyond the use of science in making decisions.
Key court decisions have invalidated certain practices adopted by the
agency, causing its critical habitat program

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

to become overburdened by litigation. Specifically, a key court case in
1997 invalidated FWS's policy regarding when it was prudent to designate
critical habitat for listed species.11 Prior to the decision, FWS had
designated critical habitat for only about 10 percent of listed species.
Since then, court orders and settlement agreements have compelled FWS to
designate critical habitat in cases that the agency had previously
determined doing so was not prudent. In 2001, FWS lost another key
lawsuit, challenging the adequacy of the economic analyses the agency used
to support its critical habitat

12

designations. Since this decision was issued, court orders and settlement
agreements have prompted FWS to re-issue some critical habitat decisions.
The Department of the Interior believes that the flood of litigation over
critical habitat designation is preventing FWS from taking what it deems
to be higher priority activities, such as addressing the approximately 250
"candidate" species waiting to go through the listing process (listing and
critical habitat activities are funded under the same line item in the
department's budget).

Because FWS's critical habitat program faces serious challenges, including
questions regarding the role of critical habitat in species conservation,
we recommended in our August 2003 report that the Secretary of the
Interior provide clear strategic direction for the critical habitat
program by clarifying the role of critical habitat and how and when it
should be designated and recommending policy, regulatory, and/or
legislative changes necessary to address these issues. The Department did
not respond to our request to comment on a draft of this report and has
not formally indicated whether or not it intends to implement the
recommendation.

Conclusion

We recognize that passions run high when issues concern the Endangered
Species Act. The act, with its broad powers to restrict the use of natural
resources and impinge upon individual property rights, coupled with its
noble purpose to conserve the ecosystems

11 Natural Resources Defense Council v. United States Department of the
Interior, 113 F.3d 1121 (9th Cir.
1997).
12 New Mexico Cattle Growers v. United States Fish and Wildlife Service,
248 F.3d 1277 (10th Cir. 2001).

upon which threatened and endangered species depend, provides a crucible
for an ongoing national debate concerning the tradeoffs between economic,
social, and environmental values. As members of the Subcommittee are well
aware, there are no easy answers. However, there is common ground among
everyone concerned about the act and its impact on the nation and its
resources. All can agree that reducing the negative impacts of
implementing the act-whether it be the loss of credibility for the
Services over debates about "sound science" or the perceived injustice of
limited resource use due to needed species protections-while improving the
status of threatened and endangered species is a worthy goal. In our
testimony today, we have highlighted just a few examples where federal
agencies, working cooperatively and diligently, have achieved just that.
Unfortunately, we found too few examples of this in our work. We believe
more can be done. The task before us is to identify how all concerned
parties-federal, tribal, state, local, and private-can work together to
improve the status of threatened and endangered species while further
reducing the negative impacts of implementing the act. As we begin a new
review of how species recovery plans are being implemented-work that was
requested by a bipartisan group of Senators and Congressmen including the
Chairman of this Subcommittee-we hope that the successful examples on
collaboration and the use of science we noted here are harbingers for
future cooperation and success.

Appendix I: GAO Reports Concerning the Endangered Species Act

Reports Addressing Implementation of the Endangered Species Act

Endangered Species: Fish and Wildlife Service Generally Focuses Recovery
Funding on High-Priority Species, but Needs to Periodically Assess Its
Funding Decisions. GAO-05-211. Washington, D.C.: April, 6, 2005.

Protected Species: International Convention and U.S. Laws Protect Wildlife
Differently. GAO-04-964. Washington, D.C.: September 15, 2004.

Endangered Species: Federal Agencies Have Worked to Improve the
Consultation Process, but More Management Attention Is Needed. GAO-04-93.
Washington, D.C.: March 19, 2004.

Military Training: Implementation Strategy Needed to Increase Interagency
Management for Endangered Species Affecting Training Ranges. GAO-03-976.
Washington, D.C.: September 29, 2003.

Endangered Species: Fish and Wildlife Service Uses Best Available Science
to Make Listing Decisions, but Additional Guidance Needed for Critical
Habitat Designations. GAO-03-803. Washington, D.C.: August 29, 2003.

Endangered Species: Despite Consultation Improvement Efforts in the
Pacific Northwest, Concerns Persist about the Process. GAO-03-949T.
Washington, D.C.: June 25, 2003

International Environment: U.S. Actions to Fulfill Commitments Under Five
Key Agreements. GAO-03-249. Washington, D.C.: January 29, 2003.

Endangered Species: Research Strategy and Long-Term Monitoring Needed for
the Mojave Desert Tortoise Recovery Program. GAO-03-23. Washington, D.C.:
December 9, 2002.

Columbia River Basin Salmon and Steelhead: Federal Agencies' Recovery
Responsibilities, Expenditures and Actions. GAO-02-612. Washington, D.C.:
July 26, 2002.

International Environment: U.S. Actions to Fulfill Commitments Under Five
Key Agreements. GAO-02-960T. Washington, D.C.: July 24, 2002.

Endangered Species Program: Information on How Funds Are Allocated and
What Activities Are Emphasized. GAO-02-581. Washington, D.C.: June 25,
2002.

Canada Lynx Survey: Unauthorized Hair Samples Submitted for Analysis.
GAO-02496T. Washington, D.C.: March 6, 2002.

Unauthorized Hair Samples Submitted for Analysis. GAO-02-488R. Washington,
D.C.: March 6, 2002.

Accidental Contamination of Samples Used in Canadian Lynx Study Rendered
the Study's Preliminary Conclusion Invalid. GAO-01-1018R. Washington,
D.C.: August 14, 2001.

Endangered Species Act: Fee-Based Mitigation Arrangements. GAO-01-287R.
Washington, D.C.: February 15, 2001.

Fish and Wildlife Service: Challenges to Managing the Carlsbad,
California, Field Office's Endangered Species Workload. GAO-01-203.
Washington, D.C.: January 31, 2001.

Fish and Wildlife Service: Weaknesses in the Management of the Endangered
Species Program Workload at the Carlsbad, California Field Office.
T-RCED-00-293. Washington, D.C.: September 14, 2000.

Endangered Species: Caribou Recovery Program Has Achieved Modest Gains.
RCED99-102. Washington, D.C.: May 13, 1999.

Department of Commerce, National Oceanic and Atmospheric Administration:
Endangered and Threatened Species; Threatened Status for Two Chinook
Salmon Evolutionarily Significant Units (ESUs) in California. OGC-00-5.
Washington, D.C.: October 15, 1999.

Department of Commerce, National Oceanic and Atmospheric Administration:
Endangered and Threatened Species of Salmonids. OGC-99-38. Washington,
D.C.: April 7, 1999.

Estimated Costs to Recover Protected Species. RCED-96-34R. Washington,
D.C.: December 21, 1995.

Reports Related to the Endangered Species Act

Military Training: DOD Approach to Managing Encroachment on Training
Ranges Still Evolving. GAO-03-621T. Washington, D.C.: April 2, 2003.

Transboundary Species: Potential Impact to Species. GAO-03-211R.
Washington, D.C.: October 31, 2002.

Military Training: DOD Lacks a Comprehensive Plan to Manage Encroachment
on Training Ranges. GAO-02-614. Washington, D.C.: June 11, 2002.

Military Training: DOD Needs a Comprehensive Plan to Manage Encroachment
on Training Ranges. GAO-02-727T. Washington, D.C.: May 16, 2002.

Consequences of the Ruling by the 11th Circuit Court of Appeals on Forest
Management Projects. GAO-01-51R. Washington, D.C.: November 30, 2000.

Timber Management: Forest Service Has Considerable Liability for Suspended
or Canceled Timber Sales Contracts. GAO-01-184R. Washington, D.C.:
November 29, 2000.

Army Corps of Engineers: An Assessment of the Draft Environmental Impact
Statement of the Lower Snake River Dams. RCED-00-186. Washington, D.C.:
July 24, 2000.

National Fish Hatcheries: Authority Needed to Better Align Operations With
Priorities. RCED-00-151. Washington, D.C.: June 14, 2000.

Fish and Wildlife Service: Agency Needs to Inform Congress of Future Costs
Associated With Land Acquisitions. RCED-00-52. Washington, D.C.: February
15, 2000.

Fish and Wildlife Service: Management and Oversight of the Federal Aid
Program Needs Attention. T-RCED-99-259. Washington, D.C.: July 20, 1999.

International Environment: Literature on the Effectiveness of
International Environmental Agreements. RCED-99-148. Washington, D.C.: May
1, 1999.

Ecosystem Planning: Northwest Forest and Interior Columbia River Basin
Plans Demonstrate Improvements in Land-Use Planning. RCED-99-64.
Washington, D.C.: May 26, 1999.

Forest Service: Distribution of Timber Sales Receipts, Fiscal Years 1995
Through 1997. RCED-99-24. Washington, D.C.: November 12, 1998.

Water Resources: Corps of Engineers' Actions to Assist Salmon in the
Columbia River Basin. RCED-98-100. Washington, D.C.: April 27, 1998.

Federal Land Management: Estimates of Value and Economic Effects of
Canceled and Suspended Timber Sale Contracts in the Pacific Northwest.
RCED-98-18R. Washington, D.C.: October 6, 1997.

Forest Service: Unauthorized Use of the National Forest Fund. RCED-97-216.
Washington, D.C.: August 29, 1997.

Tongass National Forest: Lack of Accountability for Time and Costs Has
Delayed Forest Plan Revision. T-RCED-97-153. Washington, D.C.: April 29,
1997.

Federal Power: Issues Related to the Divestiture of Federal Hydropower
Resources. RCED-97-48. Washington, D.C.: March 31, 1997.

Timber Management: Opportunities to Limit Future Liability for Suspended
or Canceled Timber Sale Contracts. RCED-97-14. Washington, D.C.: October
31, 1996.

Bureau of Reclamation: An Assessment of the Environmental Impact Statement
on the Operations of the Glen Canyon Dam. RCED-97-12. Washington, D.C.:
October 2, 1996.

Northwest Power Planning Council: Greater Public Oversight of Business
Operations Would Enhance Accountability. RCED-96-226. Washington, D.C.:
August 30, 1996.

Animas-La Plata Project: Status and Legislative Framework. RCED-96-1.
Washington, D.C.: November 17, 1995.

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