Endangered Species
Federal Agencies Have Worked to Improve the Consultation Process, but More Management Attention Is Needed Gao ID: GAO-04-93 March 19, 2004To 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.
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.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-04-93, Endangered Species: Federal Agencies Have Worked to Improve the Consultation Process, but More Management Attention Is Needed
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Report to Congressional Requesters:
March 2004:
ENDANGERED SPECIES:
Federal Agencies Have Worked to Improve the Consultation Process, but
More Management Attention Is Needed:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-04-93]:
GAO Highlights:
Highlights of GAO-04-93, a report to congressional requesters
Why GAO Did This Study:
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.
What GAO Found:
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.
What GAO Recommends:
Because many concerns about the consultation process center on its
timeliness, GAO recommends that the Services improve the data about the
time and effort to complete the process. GAO further recommends that
the Services and other federal agencies work together to clarify the
process and evaluate improvement efforts. In commenting on a draft of
this report, the agencies generally concurred with our findings and
recommendations.
www.gao.gov/cgi-bin/getrpt?GAO-04-93.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Barry Hill at (202)
512-3841 or hillbt@gao.gov.
[End of section]
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:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Department of the Interior:
GAO Comments:
Appendix III: Comments from the Department of the Army:
GAO Comment:
Appendix IV: Comments from the National Oceanic and Atmospheric
Administration:
GAO Comments:
Appendix V: Comments from the Forest Service:
GAO Comments:
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Staff Acknowledgments:
Figures:
Figure 1: Agencies Must Balance the Use of Natural Resources with the
Protection of Species:
Figure 2: Columbia River Basin:
Figure 3: Workers Install Electric Fish Barrier Fabric on Canal
Diversion Structure:
Figure 4: NMFS Timeliness for Formal and Informal Consultations:
Figure 5: FWS Portland Office Timeliness for Formal and Informal
Consultations:
Figure 6: Streamlined Consultation Process Seeks to Bypass the
Iterative Cycle of Information Requests:
Figure 7: Site Visit to Culvert Replacement Project on Forest Service
Land:
Figure 8: FWS Portland Office Streamlined Formal Consultations:
Figure 9: FWS Portland Office Nonstreamlined Formal Consultations:
Figure 10: FWS Portland Office Streamlined Informal Consultations:
Figure 11: FWS Portland Office Nonstreamlined Informal Consultations:
Figure 12: NMFS Streamlined Formal Consultations:
Figure 13: NMFS Nonstreamlined Formal Consultations:
Figure 14: NMFS Streamlined Informal Consultations:
Figure 15: NMFS Nonstreamlined Informal Consultations:
Figure 16: Replacement of Creosote-Treated Wood Pilings with Steel
Pilings:
Figure 17: Numerous Docks and Piers Line the Shoreline of Lake
Washington:
Figure 18: Caving Streambed along a Railway Posed a Safety Hazard:
Abbreviations:
BLM: Bureau of Land Management:
FWS: U.S. Fish and Wildlife Service:
NMFS: National Marine Fisheries Service:
NOAA: National Oceanic and Atmospheric Administration:
Letter 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 sample[Footnote 1]
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.):
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
ocean-dwelling species and anadromous species, such as salmon.[Footnote
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.[Footnote 3] Informal consultation occurs when the agency has
determined that an activity may 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.[Footnote 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.[Footnote 5],[Footnote 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 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.[Footnote 7]
* 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.
* 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.
* 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.
* 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).[Footnote 8]
Figure 1: Agencies Must Balance the Use of Natural Resources with the
Protection of Species:
[See PDF for image]
[End of figure]
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:
[See PDF for image]
[End of figure]
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.[Footnote 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).
Figure 3: Workers Install Electric Fish Barrier Fabric on Canal
Diversion Structure:
[See PDF for image]
[End of figure]
Completeness of Data Maintained on Consultations Varied between the
Services but Did Not Capture the Entire Process:
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.
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;[Footnote 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.[Footnote 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.[Footnote 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.[Footnote 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 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:
[See PDF for image]
Note: Fiscal year 2001 data are only for the period January 1 through
September 30, 2001.
[End of figure]
Figure 5: FWS Portland Office Timeliness for Formal and Informal
Consultations:
[See PDF for image]
[End of figure]
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.[Footnote 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 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).
Figure 6: Streamlined Consultation Process Seeks to Bypass the
Iterative Cycle of Information Requests:
[See PDF for image]
[End of figure]
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.[Footnote 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 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 bureau-wide
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:
[See PDF for image]
[End of figure]
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 60-day 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:
[See PDF for image]
[End of figure]
Figure 9: FWS Portland Office Nonstreamlined Formal Consultations:
[See PDF for image]
[End of figure]
Figure 10: FWS Portland Office Streamlined Informal Consultations:
[See PDF for image]
[End of figure]
Figure 11: FWS Portland Office Nonstreamlined Informal Consultations:
[See PDF for image]
[End of figure]
Figure 12: NMFS Streamlined Formal Consultations:
[See PDF for image]
[End of figure]
Figure 13: NMFS Nonstreamlined Formal Consultations:
[See PDF for image]
[End of figure]
Figure 14: NMFS Streamlined Informal Consultations:
[See PDF for image]
[End of figure]
Figure 15: NMFS Nonstreamlined Informal Consultations:
[See PDF for image]
[End of figure]
Many of the "streamlined" formal consultations that exceeded the
shortened 60-day time frame, also exceeded the 135-day time frame for
nonstreamlined formal consultations (as figures 8 and 12 show). For
NMFS, 18 of the 60 (30 percent) streamlined formal consultations
completed during fiscal years 2001 through 2003 exceeded 135 days. Data
from the FWS Portland office show that 13 of the 69 (19 percent)
streamlined formal consultations completed in that office in fiscal
years 2001 through 2003 took longer than 135 days. Furthermore, given
that the Services do not know how much time and effort is spent in
preconsultation, as discussed previously, the Services cannot know if
streamlining is simply shifting time and effort typically spent in
consultation to preconsultation, or if they are spending more resources
on the entire consultation process under streamlining as compared to
nonstreamlined consultations.
We also heard concerns from some officials that the streamlining
process can still take a long time to complete, although not everyone
thought that 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 80-
percent increase in staffing levels (from 48 full-time equivalents to
86).[Footnote 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).[Footnote 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.[Footnote 18] We found that FWS field office supervisors in
all regions reported that a lack of funds and 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.[Footnote
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.[Footnote 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 full-time 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 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 burn-out. 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).
Figure 16: Replacement of Creosote-Treated Wood Pilings with Steel
Pilings:
[See PDF for image]
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 long-term benefits should offset
any immediate harm.
[End of figure]
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.[Footnote 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 short-term
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).
Figure 17: Numerous Docks and Piers Line the Shoreline of Lake
Washington:
[See PDF for image]
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.
[End of figure]
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).
Figure 18: Caving Streambed along a Railway Posed a Safety Hazard:
[See PDF for image]
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.
[End of figure]
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 one-third 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 Were Concerned about Whether the Process
Protects Species:
Environmental advocates that we contacted were primarily concerned that
the consultation process, as implemented, does not go far enough to
protect listed species. According to these advocates, consultations may
not adequately protect species, in part, because of weak oversight by
the 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 self-certification
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.
* 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.
* 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:
* 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;
* refine guidance, as needed, on the type and specificity of
documentation required in consultations; and:
* 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 [Hyperlink,
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.
Signed by:
Barry T. Hill:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
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.[Footnote 22]
To assess the reliability of the timeliness data maintained by NMFS, we
attempted to compare information contained in the administrative record
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, at the time of our review,
the one maintained by the FWS office in Portland, Oregon.[Footnote 23]
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 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.[Footnote 24] 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 pre-tested 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 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:
* 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;
* 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;
* 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;
* 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;
* 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:
* 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:
* port authorities;
* local governments;
* irrigation districts;
* private industry, including logging, ranching, and oil and gas
exploration;
* environmental groups; and:
* 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.
[End of section]
Appendix II: Comments from the Department of the Interior:
United States Department of the Interior:
OFFICE OF THE ASSISTANT SECRETARY:
POLICY, MANAGEMENT AND BUDGET
Washington, DC 20240
FEB 27 2004:
Mr. Barry T. Hill:
Director, Natural Resources and Environment
U.S. General Accounting Office:
441 G Street, N.W.
Washington, D.C. 20548:
Dear Mr. Hill:
Thank you for providing the Department of the Interior the opportunity
to review and comment on the draft U.S. General Accounting Office
report entitled, "Endangered Species: Federal Agencies Have Worked to
Improve the Consultation Process, but More Management Attention is
Needed, " GAO-04-93, dated January 20, 2004. In general, we agree with
the findings and most of the recommendations in the report, however, we
believe that the report would benefit froin an acknowledgment of some
of the benefits derived from section 7 consultation.
The enclosure provides comments from the U.S. Fish and Wildlife
Service, Bureau of Reclamation, and Bureau of Land Management. We hope
these comments will assist you in preparing the final report.
Sincerely,
Signed by:
P. Lynn Scarlett
Assistant Secretary
Policy, Management and Budget:
Enclosures:
Enclosure:
U.S. General Accounting Office Draft Report:
"Endangered Species: Federal Agencies Have Worked to Improve the
Consultation Process, but More Management Attention is Needed" GAO-04-
93:
U.S. Fish and Wildlife Service:
GENERAL COMMENTS:
Change "act" to "Act" throughout the report when referring to the
Endangered Species Act.
It has recently come to our attention that the figures used by GAO to
determine the timeliness of formal section 7 consultations completed by
the Portland Fish and Wildlife Office were incorrect. Use of the proper
figures indicates that the Service met established timelines 86 percent
of the time rather than the 68 percent of the time as identified in the
draft report. Please make the appropriate corrections throughout the
report.
We believe that the report would benefit from an acknowledgment of the
benefits that are often derived from section 7 consultation rather than
simply stressing the costs. For example, while in some circumstances
significant time may be expended in section 7 consultation, if the
consultation process results in projects being carried out in a manner
that better maintains the integrity of the ecosystems of concern, this
may provide added flexibility for action agencies to implement their
future activities. In these situations, relatively minor investments of
time can result in long-term benefits that compound over time as future
actions that may otherwise run into environmental roadblocks can be
implemented because proper planning was employed.
Similarly, the report seems to suggest that the only important factor
in evaluating the efficiency and effectiveness of section 7
consultation is its timeliness. Although the Service strives to
complete all consultations within established timeframes, there are
many instances when doing so is not in the best interest of the action
agency, the applicant, or listed species being affected by the proposed
action. One example is a situation where a critical study will soon be
completed that allows for a more precise consideration of where and
when the incidental take of listed species is likely to occur. By
waiting for the results of this study, we can more accurately represent
those effects and more effectively develop measures to minimize the
impacts of the take on the species. This can often result in better
maintaining future flexibility for action agencies and applicants. We
recommend that the report place greater emphasis on the fact that there
may be a number of valid reasons for a consultation to exceed
established timeframes, and that such delays may occur at the request
of the action, agency.
The report should also acknowledge that: (1) the implementing
regulations for section 7 of the ESA provide for extensions when
additional data would provide a better information base from which to
formulate a biological opinion: and (2) timely consultations are very
dependent on the quality of information received from the Federal
action agency.
Throughout the report, references are made "pre-consultation" attempts
are made to bundle these activities into the timeframes measuring
consultation while pointing out that the Services do not have an
effective mechanism to measure this time. It should be noted that the
pre-consultation period generally precedes finalization of the proposed
action and represents the period in which modifications to the action
can be made based on technical assistance from the Services. On that
basis, it is premature to include this period as part of the statutory
consultation process since the Federal action agency has not completely
defined its action, which ultimately may not even require consultation.
In addition, it is important to recognize that, during this time
period, action agencies typically develop information that is
applicable for processes other than ESA section 7 consultation (e.g.,
the National Environmental Policy Act process, the Federal Land Policy
And Management Act process, etc.). Even if it were determined to be
useful to track such information. it is not typically appropriate to
attribute this entire time period solely to the section 7 pre-
consultation process. In addition, during the pre-consultation process,
work on the action subject to section 7 consultation may be sporadic,
that is, long periods of weeks, months, or even years may pass without
significant work being completed on the proposed action. For these
reasons, we do not believe that the report accurately portrays the pre-
consultation process.
Regarding the recommendations, the report and its recommendations focus
on the timeliness of the consultation as a measure of the efficiency of
the section 7 consultation process. However, timeliness is not
necessarily the only or the best measure of efficiency. The
effectiveness of the results of consultation in ensuring that Federal
activities are implemented within the context of species conservation
is also important. Furthermore, the Service has examples showing that
when action agencies design their activities with this context in mind,
the timeliness of consultations also is improved. To this end the
Service recommends that the report contain a recommendation for the
Services and action agencies to make better use of section 7(a)(1) of
the ESA to improve both the efficiency and the effectiveness of the
7(a)(2) consultation process.
SPECIFIC COMMENTS:
Page 1 second paragraph. second sentence: Please add "designated"
before "critical habitat.":
Page 1, second paragraph, third sentence: Please add "or similar
document' after"... an agency submits a biological assesment' to better
reflect the flexibility of the section 7 process.
Results in Brief:
Page 3, second paragraph, third sentence: We recommend adding the
following parenthetical to the end of this sentence -"(often referred
to as program-level' or "programmatic" consultation)":
Page 4. first full paragraph, third to last sentence: Please
add"Administrative Procedure Act," before "Endangered Species Act."
Under the APA, agencies must articulate a satisfactory basis and
explanation for their actions including a rational connection between
the facts found and the choices made. For additional information on
this subject, please find the enclosed 1999 guidance provided by the
United States Department of Justice.
Pace 4 first full paragraph, second to last sentence: Please replace"...
for their decisions" at the end of this sentence with "supporting their
decisions":
Background:
Page 6, first Full paragraph, second sentence: Please modify this
sentence to read"Consultation can be resolved using the informal
process when the agency has determined that an activity may affect, but
is unlikely to adversely affect..":
Page 6, last paragraph: It should be recognized that to a great extent
the rarity of jeopardy opinions can be attributed to the collaborative
work accomplished in pre-consultation.
Page 6, last paragraph, first sentence: Please add'br similar
document'to the end of this sentence.
Page 6, last paragraph,second sentence: Please change" ... whether the
activity could jeopardize ..:'to"... whether the activity is likely to
jeopardize .."and add "designated" before "critical habitat.":
Completeness of Data Section:
Pare 11, first paragraph, last sentence: It is not appropriate to
attribute this entire time to the effects of section 7 pre-
consultation.
Page 12, last paragraph: Often delays in completion of informal
consultations result from mutual agreements between the Services and
action agencies. Such agreements are typically related to the action
agency's work schedule. For example, an action agency may request that
the Services delay completion of informal consultation on a group of
actions that they do not anticipate being able to implement for several
months due to the availability of appropriate staff in favor of
completion of consultation on other projects that they anticipate being
able to implement fairly soon. While it is true that the Services
databases often do not track such information, and perhaps these
databases should track this inforn-nation, it should be pointed out
that at least a portion of these delays are the result of mutual
agreement. While this information is presented a couple of pages later,
by having it separated from the subject paragraph, the relevance of
this point is lost.
Page 15, Available Data subsection: Please see our earlier comments
regarding the amount and type of work that occurs during the pre-
consultation period and the appropriateness of attributing this time
delay to the ESA. While much of this information is presented in the
last paragraph of this subsection, it would be more effective if this
information were better integrated into the first paragraph of this
subsection.
Improvement Efforts Section:
Page 16, last paragraph: The report fails to address staffing levels
required to implement "Level 1 streamlining." Please note in the report
that a commitment to streamlining generally requires a greater
commitment of staff resources.
Page 17, last sentence: Please change "accomodating" to "fulfilling."
In addition, we recommend that the information. provided in this
paragraph be presented within the context that timely consultations are
very dependent on the quality of the information the Services receive
from the action agency.
Page 19, Figure 6, Diamond-shaped box: The question listed in this box
is not appropriate. A, more appropriate question would be"Has the
action agency provided sufficient information to fulfill the initiation
requirements of 50 CFR 402.14(c)?':
Page 21, last paragraph: The programmatic consultation process
described in this paragraph has been determined in a series of district
and Ninth Circuit court rulings to be invalid because it fails to
provide for project-specific review and consultation. As a result, the
Service has modified this consultation process to be consistent with
the process described in the preceding paragraph of the report. We
recommend that the paragraph be omitted.
Page 23, second paragraph: We recommend replacing this paragraph with
the following text: "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 on 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. Both Services have
Intranet and internal web sites with agency guidance. NMFS has
developed an on-line Biological Assessment template and is working with
the FWS to standardize this template for both agencies. Both NMFS and
the FWS have implemented searchable on-line consultation tracking
systems so that action agencies (e.g., the Army Corps of Engineers) and
others can identify the status of any consultation. Once a user has
located a specific consultation in either tracking system they can
easily link to information on that consultation provided by the other
Service and, for example, with any Corps permit associated with the
consultation. NMFS currently posts final biological opinions on their
web site and is now working to link those documents with their
consultation tracking system. The FWS has implemented a procedure for
collecting all final biological opinions in digital format and is
exploring the feasibility of posting them on their web page and linking
them to their consultation tracking system:':
Page 26, last paragraph: The Service has found that by engaging action
agencies early during either pre-consultation or section 7(a)(1)
program reviews, action agencies often develop a better understanding
of the specie,' conservation needs and how their actions may affect
them. This commonly leads to project designs that better incorporate
species conservation. Because the bulk of the time in consultation is
usually spent working with action agencies to determine how their
proposed actions will affect the conservation needs of the species,
actions that come to the Service with these factors already addressed
typically require far less effort in consultation.
Pages 26 - 30: The graphs on these pages present a lot of information
that is not discussed. While the report discusses consultations that
exceed established timeframes, these graphs present data showing that
many of the Services' consultations are conducted well ahead of
established timeframes. To present a fair and accurate picture that may
better assist in improving the section 7 consultation process, the same
consideration should be given to consultations completed early as to
consultations completed late.
Page 31: Reducing the total time spent in section 7 consultation is not
the only goal of 'streamlining:' An additional goal is to provide more
timely service to action agencies so their consultations are completed
when they are ready to implement their actions. Thus, if the total
amount of time spent completing consultation has not been shortened,
but if by engaging in pre-consultation the work is completed earlier,
i.e., when the action agency is ready to implement their action, then
the Service, as well as the action agency, typically consider this to
be a success.
Page 32, first full paragraph last two sentences: We agree with the
assessment of vulnerability presented here and it is consistent with
the guidance received from the Department of Justice. For this reason,
the Service is recommending that all programmatic consultations include
provisions for site-specific (or project-specific) analysis. Thus,
although actions covered by programmatic consultations may be
vulnerable to legal challenge if they do not have a site-specific
analysis, the report should note that programmatic consultations can be
structured to reduce or eliminate this vulnerability.
Federal Concerns Section:
Page 33, top paragraph first full sentence: The Services do not have
the authority to "require" consultation. Action agencies determine for
themselves when consultation is "really necessary!' This sentence would
be more appropriate iftequire consultation" were replaced by "recommend
consultation:':
Page 36, first full paragraph, last two sentences: The Service very
much respects the professional expertise housed in many action
agencies; however, this expertise, the information available, and the
perspective of action agencies typically differ from the Services.
While action agencies typically focus on the conservation of the
species on their lands (or in the case of a permitting agency such as
the Army Corps, on their project sites), the Service is charged with
the responsibility of addressing the conservation of the species
throughout its range.
Page 36. last paragraph second sentence: This sentence misrepresents
the consultation handbook. Please add "informal" in front of`...
consultation should be conducted on ..:'and delete the
word"negligibld'from this sentence (see page 2-3 of the consultation
handbook). Also, please note that informal consultation is the process
used to determine whether effects are discountable, insignificant, or
completely beneficial.
Page 38, first sentence: In the Pacific Coast Federation of Fisherman's
Association v. National Marine Fisheries Service court ruling cited in
footnote 15 of the report, the Court found that the Services must
evaluate "negative short-term effects." We recommend the final report
clearly convey that all discretionary Federal actions that are likely
to adversely affect (in the short or
long-term) listed species or critical habitat must comply with section
7(a)(2) of the Endangered Species Act through the formal consultation
process. When completing this analysis, the Service also considers the
long-term benefits of the action; however, one must recognize the
importance of ensuring that the species survives the short-term
negative effects and persists within the action area so it will be
present to reap the long-term benefits of the proposed action. Action
agencies do not always consider such factors. In addition, without
access to range-wide information regarding the status of the species,
it may not be possible to accurately evaluate the short-term negative
effects. This further points to the distinctions between the roles of
the action agencies and the Services in the consultation process.
Finally, we also recommend that the report acknowledge that many
actions with long-term benefits to listed species result in short-term
adverse effects that involve incidental take of these species, which is
authorized through the formal consultation process.
Page 39, first sentence: The Service does not require additional
research to be conducted during the section 7 consultation process.
While additional studies or monitoring are sometimes recommended when
the information presented by the action agency is insufficient to
ensure that the action agency can fulfill their 7(a)(2)
responsibilities, such work is not required by the Service. However,
failure to provide sufficient information to adequately characterize
the anticipated effects of the proposed action may cause the Service to
rely on assumptions that increase the likelihood of a jeopardy or
adverse modification determination; therefore, action agencies may, at
times, consider the Service's recommendations to be requirements.
Page 39, second paragraph, third sentence: Section 7 does not use the
practicability standard as does section 10 and the Service has been
very clear on the point that section 7 is not to be used as a tool to
leverage species recovery. Regarding Figure 18, without the plantings
of shrubs and trees described in the text of this figure, the bank
stabilization achieved by the project would only be temporary.
Solutions that avoid jeopardizing the continued existence of a listed
species only in the short-term do not fulfill action agencies
responsibilities under section 7(a)(2).
Page 41, first paragraph, last sentence: The Service strongly
encourages this approach as it appears to meet the intent of the
statute, which contains the title of 'Interagency Cooperatiori'for
section 7.
Page 41, second paragraph, second sentence: Action agencies determine
for themselves the level of documentation needed to support a
conclusion that a proposed action is not likely to affect listed
species. The Service typically only requests information supporting
such determinations if the action agency requests the Service's
concurrence on their determination (which is not required by statute or
regulation). if asked for its professional opinion regarding the action
agency's determination, the Service is very likely to request the same
level of detail and scientific analysis as it does for actions that are
likely to have negative effects, because this is needed to evaluate the
potential for a proposed action to affect listed species. Please note
that if an action agency is comfortable with their "no-effect"
determination they do not need to seek the concurrence of the Service.
Page 41, second paragraph, fifth sentence to the end of the Paragraph:
In the past there has been confusion regarding how to evaluate and use
the environmental baseline for ongoing actions
such as dam maintenance. Given the level of detail provided in this
example, we would agree with the characterization of the situation. The
Service has recently worked to ensure that all participants understand
that during the effects analysis it is not appropriate to go back in
time and set the baseline at the species condition prior to dam
construction.
Page 42, first full paragraph: This paragraph provides a good
description of the tensions that can exist in the section 7(a)(2)
process. That is, while action agencies are free to utilize their
professional judgment, they typically seek the Service's opinion
through some form of consultation. Once consultation is entered into,
if the agency's professional judgment is appropriately supported and
documented, then the Service's job is relatively simple; however, such
support and documentation often is not present. To some extent, this
issue may be addressed through better communication between the Service
and action agencies. To this end, the Services have been developing a
training course to assist action agencies in the development of
information needed to support section 7 consultation.
Page 43, first paragraph, last sentence: It appears that "Service" in
this sentence is referring to the Forest Service. If so, we recommend
that this be made clear.
NonFederal Parties' Concerns Section:
Page 44, last paragraph: Please see our comments regarding Page 4, last
paragraph.
Pate 45, first paragraph: We believe that this paragraph highlights the
advantages that can sometimes be achieved for the action agency from
obtaining additional information.
Recommendations for Executive Action:
1. We recommend that the Secretary of the Interior and the
Undersecretary of Commerce for Oceans and Atmosphere direct the
Directors of the Fish and Wildlife Service and the National Marine
Fisheries Service, in collaboration 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 pre-consultation in
their data systems and ensure that such information is gathered,
maintained, and used to manage the process effectively.
Response: Concur. While discussions can be initiated with the action
agencies regarding steps to take to implement this recommendation, we
foresee considerable difficulty associated with tracking this time. For
example, while pre-consultation may continue over many months or even
years, only small portions of this time may be attributed to the ESA
pre-consultation process. This may require tracking of individual hours
or even portions of hours over long periods of time. In addition, much
of the information used in ESA consultation is actually developed for
other processes such as NEPA, FLPMA, etc. We foresee difficulty
determining how to appropriately apportion the work among the action
agencies various responsibilities.
Title of Responsible Official: Assistant Director, Endangered Species,
Fish and Wildlife Service:
Target Date: January 2006.
2. We recommend that the Secretaries of the Interior and. Defense, the
Undersecretary of Commerce for Oceans and Atmosphere, and the Director
of the Forest Service, work together to resolve disagreements about
when consultation is needed and how detailed an analysis is required
given a proposed activitys likely effects on species or habitat. The
Secretaries and the Director should ensure that their agreements are
disseminated quickly to all staff involved in consultations as well as
the public.
Response: Concur. We will work with the action agencies to come to
agreement regarding when consultation is needed and the level of detail
needed in analyses to support section 7 determinations. Once agreement
is achieved, we will quickly distribute the results as appropriate.
Title of Responsible Official: Assistant Director, Endangered Species:
Target Date; March 2005:
3. We recommend that the Secretaries of the Interior and Defense, the
Undersecretary of Commerce for Oceans and Atmosphere, and the Director
of the Forest Service, work together to refine guidance, as needed, on
the type and specificity of documentation required in a consultation.
Response: Concur. We will engage the action agencies in an effort to
refine guidance regarding the type and specificity of documentation
needed for their situations.
Title of Responsible Official: Assistant Director, Endangered Species:
Target Date: November 2005:
4. We recommend that the Secretaries of the Interior and Defense, the
Undersecretary of Commerce for Oceans and Atmosphere, and the Director
of the Forest Service, work together to evaluate the efficiency and
effectiveness of improvements made to the consultation process, such as
programmatics and streamlining, and use the evaluation results as a
basis for future management actions.
Response: Concur. We will engage the above entities in an effort to
determine how best to accomplish this task.
Title of Responsible Official: Assistant Director, Endangered Species:
Target Date; June 2005.
Bureau of Reclamation:
Overall, the report accurately describes the concerns and problems
agencies are encountering with Endangered Species Act (ESA) Section 7
consultations. However. there are several issues
and several specific statements in the report regarding the ESA process
that need to be clarified or corrected.
GENERAL COMMENTS:
GAO was asked to examine the consultation process-including process
concerns and steps taken by Federal agencies to improve the process.
The report generally focuses on steps taken to improve the conduct of
the process (e.g., efficiency, timeliness, transparency). It is not
clear from reading the report whether any Federal agencies are
concerned with, or are taking steps to improve, the effectiveness of
the process (i.e., attainment of fundamental, on-the-ground objectives
for endangered species through Section 7 consultations). The report
would be strengthened by speaking first to the observed effectiveness
of the process, and second to process efficiency. [We suspect that GAO
will find that there is even less data available to judge process
effectiveness than is available to judge process efficiency.
Nonetheless, it seems important for the report to establish whether or
not the process is reasonably effective - even if inefficient - in
achieving its underlying purpose. 1f it is reasonably effective, then
the report's emphasis on efficiency is clearly justified. 1f the
process is not reasonably effective, or if its effectiveness cannot be
determined, then perhaps the report should reach conclusions and
provide recommendations in both areas (effectiveness and conduct).]
For example, on page 4, First paragraph, last sentence, the report
states that, "Given resource constraints, it is imperative that
resources invested in process changes be justified by gains in process
efficiency." We would suggest that process changes should be equally
justifiable by gains in process effectiveness.
The report indicates in several places that GAO asked the Services 'for
data regarding consultations completed and their timeliness. GAO found
the Services' data to be insufficient (although improving). We believe
the report would be strengthened by addressing the quality of similar
data retained by the action agencies, particularly in light of the
concerns expressed by action agencies. For example, on page 3, first
paragraph, last sentence, the report states: "In addition, the Services
cannot con inn or deny complaints about the lengthiness of the entire
consultation process or know where the most significant problems arise"
A reader might reasonably ask: can the action agencies support their
complaints with complete and reliable data?
Similarly, on page 15, second full paragraph, first sentence. the
report states that "Without information on the time spent in
preconsultation, the Services cannot determine how long the entire
consultation process really takes.." Would this same statement also
apply to action agencies?
The report is inconsistent in its concept of informal consultation. It
uses the terms
"preconsultation" and "informal consultation" interchangeably to
describe the process technically defined as informal consultation. We
recommend not using the term "preconsultation" and instead use informal
consultation" as defined in the regulations.
The report is also inconsistent in its use of Bureau of Reclamation and
Reclamation. We recommend using the abbreviation "Reclamation" for
Bureau of Reclamation used throughout the remainder of the report. This
abbreviation should be included in the list of abbreviations following
the table of contents.
SPECIFIC COMMENTS:
Page 1, second paragraph. fourth sentence. The report states
that "Consultation usually ends with the Services' issuing their own
assessments of the likely effects.."We suggest that "assessments" be
changed to "opinion" as reflected in the regulations.
Page 4 first full paragraph, third sentence: We would suggest changing
the wording from"...increases in the number of consultations.
Page 6, first full paragraph, second sentence: The report states:
'informal consultation occurs when the agency has determined that an
activity is unlikely to adversely affect listed species or critical
habitat." We suggest the report clarify that informal consultation is a
process that involves a series of steps and communications between the
action agency and the Services to determine whether a Federal action
will affect listed species or critical habitat. If the action agency
determines that the action is unlikely to adversely affect listed
species or critical habitat after completing a biological assessment
(for major actions) or similar analysis (for non-major actions), and
the Services concur, then the action agency may proceed with the
activity without further consultation.
Page 9, figure 3: The map incorrectly places Helena. Montana, west of
the continental divide. We believe Missoula, Montana, is the city that
GAO is attempting to identify.
Page 10, Figure 3: We suggest changing the heading to"Workers Install
Electronic Fish Barrier Fabric on Canal Diversion Structure":
Page 17, line on top of page: Insert "formal" before "consultation.":
Page 23, first paragraph: The report should note that Reclamation has
also developed a central repository for biological assessments prepared
by Reclamation staff to assist staff in preparing biological
assessments.
Page 36, last paragraph second sentence: In referring to the Services
consultation handbook, the report states that `.consultation should be
conducted on activities with [negligible, discountable, or completely
beneficial] effects in addition to those with clearly negative
effects." This needs to be corrected. The handbook actually states the
opposite. `No formal consultation is required if a finding can be made,
with the Services concurrence, that all reasonably expected effects
will be beneficial, negligible, or discountable:':
Page 41 second Paragraph, fifth sentence: Insert"operation and' after
"dam." Sixth sentence, insert `operations and' before "maintenance." In
this discussion, the document should note that
Reclamation and the Services are in the process of working out their
differences oil. how effects will be analyzed for ongoing operations
and maintenance at existing facilities.
Page 44, second full paragraph, first sentence: Sentence states that
applicants".must consider their effects to protected species." This
needs to be narrowed down to reflect that applicants must have their
effects addressed in agency Section 7 consultations. Suggest that the
sentence be revised to state that applicants ',.must have the effects
of their actions on protected species addressed within the Section 7
consultation so that it addresses the agency's action to fund or
authorize their proposed activity:':
Page 49, Recommendations for Executive Action: In tracking the
consultation process, the report notes the Services' failure to
document the causes for missed deadlines. We believe this is a major
deficiency which needs to be corrected in order to improve the process.
There may be trends that become apparent that could be readily
remedied, We encourage GAO to include this in its recommendations.
The text of the report discusses, in general, disagreements with
essentially all action agencies as to when consultation is needed and
the level of detailed analysis required. Yet, the recommendations seem
to only call for the Forest Service (as an action agency) and the
regulatory agencies to resolve this problem. We suggest that these
recommendations be expanded to indicate more clearly that action
agencies such as the Reclamation and the Bureau of Land Management,
within the Department of the Interior, are part of the process to
address these recommendations,
The report also discusses certain needs with respect to improving
agency training, however, none of the recommendations are addressing
this issue. We believe training needs will become acute as new and
inexperienced staff is hired to replace experienced staff that are
moving on to new jobs or retiring. We suggest that GAO include a
recommendation encouraging the Services and action agencies to join
forces in developing cross-agency training to better understand the
consultation process and how it relates to action agencies' programs,
authorities, and decision processes.
Making the consultation process more transparent to outside interest
groups and stakeholders is also a need that will continue to grow as
consultations become more complex and affect stakeholders in more
significant ways. Action agencies have begun to make draft biological
assessments available to the public for certain actions as part of
National Environmental Policy Act documents and have shared those
public comments with the Services. This has its benefits and drawbacks.
We suggest that the GAO include a recommendation that agencies study
this issue and perhaps develop guidance on when this might be
appropriate and how it should be conducted.
Bureau of Land Management:
GENERAL COMMENT:
We look forward to continuing to work with the U.S. Fish and Wildlife
Service, National Oceanic and Atmospheric Administration Fisheries, and
other action agencies to resolve disagreements, refine guidance, and
evaluate improvements to the Section 7 consultation process.
SPECIFIC COMMENTS:
Page 4, second para gr In the sentence beginning"While staff levels
have increased. "is a reference to "increases in the number of
consultations." It should read". increases in the number and complexity
of consultations":
Page 22: In the second paragraph, the last two sentences do not pertain
to the BLM. The reference to "forest planS" appears to be generic; the
BLM does not prepare forest plans. The BLMs land use plans are called
Resource Management Plans and include compliance with the National
Environmental Policy Act. Also, please add to the third paragraph that
two to three times annually the BLM offers training on the Endangered
Species Act to BLM and other agency personnel.
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. 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.
2. We agree and have incorporated additional information on the
benefits of the consultation process in the report.
3. 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.
4. 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.
5. 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 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 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.
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.
[End of section]
Appendix III: Comments from the Department of the Army:
DEPARTMENT OF THE ARMY
OFFICE OF THE ASSISTANT SECRETARY CIVIL WORKS
108 ARMY PENTAGON
WASHINGTON DC 20310-0108:
REPLY TO ATTENTION OF:
Mr. Barry T. Hill Director:
Natural Resources and Environment
U.S. General Accounting Office:
441 G Street, N.W.
Washington, D.C. 20548 -1000:
Dear Mr. Hill:
This letter provides the Department of Defense (DoD) response to the
GAO draft report, "ENDANGERED SPECIES: Federal Agencies Have Worked to
Improve the Consultation Process, but More Management Attention is
Needed," dated January 20, 2004, (GAO CODE 360259/GAO-04-93).
The GAO report was prepared to assess the consultation processes for
compliance with the Endangered Species Act. Federal agencies must
consult with the U.S. Fish and Wildlife Service or the National Marine
Fisheries Service to ensure that actions taken or permitted by those
agencies do not jeopardize the continued existence of listed species or
adversely modify their habitats. The report provides an examination of
the processes and timeframes for these consultations. Army Civil Works
comments on the report follow.
In general, the GAO report does a good job of identifying the multiple
problems that contribute to delays and often to increased costs at
Corps civil works and regulatory projects as the pre-consultations (and
informal consultations) and formal consultations proceed. However,
those problems are not sufficiently highlighted in the recommendations
to provide adequate clarity for the affected resource agencies to
develop policies or interagency agreements that might address ways of
improving the consultation processes. We note that there are very
limited data upon which the recommendations are based.
Therefore, we recommend that the first recommendation of the report on
page 49 be restated to apply to the affected and resources agencies
equally, including DoD. Moreover, we suggest replacing the word
"collaboration" with the word "conjunction" in this recommendation to
allow affected agencies to ensure that the data accurately reflect the
length of the entire consultation process, including the early informal
or pre-consultation stages. Quite frequently, the pre-consultation
process results in the project proponents delaying their activities
while amassing data and re-designing the proposed projects to avoid a
potential jeopardy opinion. To highlight this point, page three of the
report specifies that
"more than one-third" of the 1,700 consultations exceeded the
established time frames for consultation, while on page six the report
identified only eight jeopardy opinions in all of fiscal year 2003.
There is no correlation among the data; thus it is difficult to make
accurate comparisons. However, the information presented may suggest
that those delays account for a significant number of projects going
through modifications and incurring additional costs in order to avoid
a jeopardy opinion. Keeping more accurate data might assist in
identifying those projects, the causes of delays and the modifications
that occur in advance of initiation of formal consultation.
Furthermore, we generally concur with the next three recommendations on
page 50 of the report, which are those stated on the attached formatted
comment sheet. We do recommend some revisions, however. For example,
the first recommendation on page 50 of the report can be clarified and
made more specific. Separating this one recommendation into three
separate but related recommendations would emphasize the importance of
the need to have improved procedures that are developed jointly among
the Services and the agencies that consult with the Services. This
recommendation should be broken into three parts to highlight their
importance as underscored in the report. The clear connection between
the likely adverse impacts and the level of detailed analysis should be
a central component of such procedural guidelines.
We also believe the term "work together" in this recommendation is
vague and not actionable and should be replaced with the more specific
requirement to develop procedures. We believe that a coordinated and
collaborative process, developed jointly, for resolution is necessary
to establish consistent procedures for identifying and resolving
conflicts. Thus, we recommend substituting these three recommendations
for the first recommendation on page three:
* Develop interagency procedures to resolve disagreements about when
consultation is needed;
* Develop interagency procedures identifying data and analysis needs for
typical projects so that the services might determine more readily the
likely effects on species or habitat; and:
* Ensure that any procedures developed are disseminated to all staff and
made available to the affected public.
We generally concur with the remaining two recommendations on page 50,
but with a suggested modification to strengthen Recommendation 3. We
base that suggestion on the need to demonstrate the effectiveness of
the improvements and provide for measurement of progress.
With these proposed modifications as stated herein and on the attached
comment sheet, changes we believe will strengthen the report, both Army
Civil Works and the Army Corps of Engineers concur with your findings.
We look forward to working with the Services and our partner agencies
to improve the consultation process, to develop useful methods for
tracking, and to identify the many contributions the entire process,
both formal and informal, have made to preservation of threatened and
endangered species and their critical habitats.
Very truly yours,
Signed by:
John Paul Woodley, Jr.
Assistant Secretary of the Army (Civil Works):
Enclosure:
GAO DRAFT REPORT - DATED JANUARY 20, 2004 GAO CODE 360259/GAO-04-93:
"ENDANGERED SPECIES: Federal Agencies Have Worked to Improve the
Consultation Process, but More Management Attention is Needed":
DEPARTMENT OF DEFENSE COMMENTS TO THE RECOMMENDATIONS:
RECOMMENDATION 1: The GAO recommended that the Secretary of Defense
work together with the Secretary of the Interior, the Undersecretary of
Commerce for Oceans and Atmosphere, and the Director of the Forest
Service to resolve disagreements about when consultation is needed and
how detailed an analysis is required given a proposed activity's likely
effects on species or habitat. The Secretary of Defense should ensure
that their agreements are disseminated quickly to all staff involved in
consultations as well as the public. (p. 50/GAO Draft Report):
DOD RESPONSE: We concur with your recommendation but, as stated in the
letter, we believe that the recommendation should be clarified and
reworded to emphasize the importance of this process, which is further
highlighted in the body of the report. Therefore, we suggest that this
recommendation be broken into three and that the term "work together'
in this recommendation be replaced to ensure specificity and action.
The three suggested replacements are:
1. Develop interagency procedures to resolve disagreements about when
consultation is needed and for which kinds of actions;
2. Develop interagency procedures identifying data and analysis needs
for typical projects so that the Services might determine likely
effects on species or habitat more readily; and:
3. Ensure that any procedures developed are disseminated to all staff
and made available to the affected public.
RECOMMENDATION 2: The GAO recommended that the Secretary of Defense
work together with the Secretary of the Interior, the Undersecretary of
Commerce for Oceans and Atmosphere, and the Director of the Forest
Service to refine guidance, as needed, on the type and specificity of
documentation required in a consultation. (p. 50/GAO Draft Report):
DOD RESPONSE: We concur with this recommendation.
RECOMMENDATION 3: The GAO recommended that the Secretary of Defense
work together with the Secretary of the Interior, the Undersecretary of
Commerce for Oceans and Atmosphere, and the Director of the Forest
Service to evaluate the efficiency and effectiveness of improvements
made to the consultation process, such as programmatics and
streamlining, and use the evaluation results as a basis for future
management actions. (p. 50/GAO Draft Report):
DOD RESPONSE: We concur with your findings with the following
modification: "The affected and resource field agencies should report
on their efficiency and effectiveness in making improvements to the
consultation process." Ways to make improvements should not be
constrained. However, demonstrating the effectiveness of the
improvements should be reported so that the agencies can measure
progress.
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.
[End of section]
Appendix IV: Comments from the National Oceanic and Atmospheric
Administration:
UNITED STATES DEPARTMENT OF COMMERCE
The Under Secretary of Commerce for Oceans and Atmosphere
Washington, D.C. 20230:
FEB 26, 2004:
Mr. Barry T. Hill:
Director, Natural Resources and Environment:
United States General Accounting Office
Washington, D.C. 20548:
Dear Mr. Hill:
Thank you for the opportunity to review and comment on the General
Accounting Office's draft report entitled, "Endangered Species: Federal
Agencies Have Worked to Improve the Consultation Process, but More
Management Attention is Needed." GAO-04-93. Enclosed are the National
Oceanic and Atmospheric Administration's comments on the draft report.
These comments were prepared in accordance with the Office of
Management and Budget Circular A-50.
Sincerely,
Conrad C. Lautenbacher, Jr.
Vice Admiral, U.S. Navy (Ret.)
Under Secretary of Commerce for Oceans and Atmosphere:
Enclosure:
NOAA Comments on the Draft GAO Report Entitled:
"Endangered Species: Federal Agencies Have Worked to Improve the
Consultation Process, but More Management Attention is Needed" (GAO-04-
93/February 2004):
General Comments:
NOAA Fisheries recognizes and appreciates concerns over delays in
consultations and resultant effects on action agencies and the public.
NOAA Fisheries implemented a web-based "Public Consultation Tracking
System" (PCTS) in FY 2001 to allow NOAA Fisheries, action agencies, and
the affected public to easily review and track the status of all ESA
consultations conducted by the Northwest Region of NOAA Fisheries in
Washington, Oregon, and Idaho. PCTS was expanded to a national system
in FY 2003 and continued enhancements are underway. The impetus for
developing the PCTS was to have a system that could be used to track
and manage consultations by management in NOAA Fisheries, the action
agencies, and the affected public. For example, applicants for Army
Corps of Engineers permits can enter their permit number into PCTS and
view when their consultation request was submitted by the action
agency, whether it was complete or not, when consultation was
initiated, and the expected time for completion. We are pleased that
GAO was also able to use PCTS to directly access our consultation
information for this report.
NOAA Fisheries has made significant progress with the action agencies
in expediting and streamlining the consultation process especially for
routine Federal actions. This has been accomplished through
streamlining agreements and by working with the action agencies to use
programmatic consultation approaches to batch and bundle similar
actions, and to use watershed-scale consultations as much as possible
to take advantage of economies of scale. For the most part, routine
actions which pose little serious effect on ESA listed species or their
habitat do not require significant staff time to process. While NOAA
has effectively managed its workload for these actions, it is beginning
to experience an increase in the number of more complex actions that
require increased technical sophistication and in some instances the
involvement by contractors and scientists. Some of these include large
water storage projects, water quality standards consultations, and
point discharges. Consultation on these actions needs to be carefully
completed to reduce adverse effects on threatened and endangered
species and to withstand external scrutiny.
NOAA Fisheries has developed a "Consultation Initiation Template" (CIT)
to assist the action agencies in their preparation of more complete
biological assessments that should assist in further expediting the
consultation process. The initial "pilot version" of the CIT is
available on the NOAA Fisheries Northwest Region website, and was
provided to GAO during their visit. The CIT provides a structured
format for inputting the core requirements of biological assessments
and should eliminate some of the concerns raised about communication
between agencies on the content and adequacy of biological assessments.
Specific Comments:
Page 6, paragraph 2, second sentence: Please modify the sentence to
read "Informal consultation occurs when an agency determines its action
may affect, but is not likely to adversely affect listed species or
critical habitat.":
Page 7: We recommend providing a matrix or other graphic to display
which action agencies are responsible for which species.
Page 15, second full paragraph: The report does not include mention
that the PCTS does in fact track time spent in preconsultation. NOAA
Fisheries added preconsultation to the PCTS system in May 2002 in
recognition of this being an important component of the consultation
process.
NOAA Response to GAO Recommendations:
Recommendation 1: The GAO report states: "We recommend that the
Secretary of the Interior and the Undersecretary of Commerce for Oceans
and Atmosphere direct the Directors of the Fish and Wildlife Service
and the National Marine Fisheries Service, in collaboration with the
action agencies we reviewed (and others the Services 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.":
NOAA Response: NOAA agrees with this recommendation and did modify PCTS
in May 2002 to capture these data. The PCTS does track initiation of
preconsultation activities and does link it to the subsequent
consultation initiation. It will be difficult, as GAO noted on page 16,
to apportion a specific amount of the preconsultation time frame solely
to ESA requirements because much information generated during
preconsultation is applicable to processes other than consultation,
such as NEPA. Nonetheless, we are using PCTS to better track
preconsultation efforts.
Regarding preconsultation, early involvement by the Services does not
necessarily add more process time to the overall ESA consultation. In
many instances very early staff-to-staff coordination reduces effects
from projects on ESA-listed species and designate critical habitat
before the section 7 consultation is initiated. NOAA is aware of many
examples where "likely to adversely affect" actions would have
triggered the more complicated and time consuming formal consultation
process but because of staff-to-staff preconsultation, effects were
lessened to the "not likely to adversely affect" level which triggered
the less complicated informal consultation process. As noted in the
report, preconsultation can increase time spent on early project-level
coordination; however, NOAA has found that preconsultation activities
enable the preparation of concurrence letters instead of more time
consuming biological opinions. The U.S. Forest Service
for February and March 2004, and the agencies are scheduled to address
common execution problems in the preconsultation and consultation
processes.
One additional issue not addressed in the GAO report that can have
significant effects on preconsultation and consultation time lines is
teasing out the extent of Federal discretion action agencies have over
projects they authorize, fund, or permit. For many actions authorized
by Federal agencies, it is difficult to detern-iine how much discretion
action agencies have to modify the action and evaluate effects. In some
cases, agency policy has been inconsistent and court cases conflict
between states. For example, the Forest Service found it necessary to
elevate a question regarding its own agency's discretion to condition
access to private inhoidings. Similarly, where there is not clear
discretion regarding the land management agency authorities to
condition special use permits for activities, such as mining and/or
water diversions, the consultation process can be significantly bogged
down. NOAA believes that unresolved issues regarding whether or not
action agencies have discretion remain an important challenge for the
agencies to resolve. In the absence of resolution of these issues,
consultation affected by such uncertainty should be duly noted in the
system such that they do not unnecessarily lengthen the preconsultation
and consultation time lines.
Recommendation 2: The GAO states: "We recommend that the Secretaries of
the Interior and Defense, the Undersecretary of Commerce for Oceans and
Atmosphere, and the Director of the Forest Service, work together to:
[1] Resolve disagreements about when consultation is needed and how
detailed an analysis is required given a proposed activity's likely
effects on species or habitat. The Secretaries and the Director should
ensure that their agreements are disseminated quickly to all staff
involved in consultations as well as the public. [2] Refine guidance,
as needed, on the type and specificity of documentation required in a
consultation.
[3] Evaluate the efficiency and effectiveness of improvements made to
the consultation process, such as programmatics and streamlining, and
use the evaluation results as a basis for future management actions.
NOAA Response: Recommendation 2.1. NOAA agrees with this
recommendation. NOAA's preconsultation experience with the USFS and BLM
has been in place for many years and the agencies have gained
significant benefits. The agencies have signed agreements and
established a hierarchical dispute resolution process designed to
prevent unresolved ESA issues from languishing during preconsultation.
The dispute resolution process has been used several times and
effectively resolved disagreements. Although experiences vary across
the states, some locations like the Pacific Northwest have been able to
pursue time saving programmatic consultation innovations for routine
actions with predictable effects and obviate the need for site specific
consultations. In this area, NOAA has been the lead in exporting
dispute resolution processes and other successful tools to other action
agencies less familiar with the section 7 process.
Recommendation 2.2:
NOAA agrees with this recommendation. In 2003, NOAA developed and
deployed a pilot "Consultation Initiation Template" (CIT) an on-line
consultation initiation template and user guide to assist action
agencies in the development of biological assessments and biological
evaluations (BA/BEs). NOAA developed this standardized template to
encourage consistency in format and content of BA/BEs and to reduce
potential for delays in the consultation process experienced previously
associated with requests for additional information.
The template also contains a completion checklist that action agencies
and NOAA can use to ensure that all necessary information has been
provided. When NOAA determines that a BA/BE is complete it, would
notify the action agency that it has initiated consultation. The CIT
will be linked directly to the PCTS so each step of the consultation
process, including receipt of a completed BABE, are automatically
tracked by PCTS.
The CIT is designed to elicit the type of information necessary at the
appropriate level of detail, highlighting information NOAA has often
found missing in BA/BEs. When information is missing, consultation
delays often occur. We are hopeful this tool, when completed, will
enable NOAA and the action agencies to have a common set of instruction
and ESA application to avoid or reduce ambiguity over information needs
and resolve questions over whether consultation has been initiated.
NOAA believes the consultation initiation template, user guide, and
check list, when completed, will reduce disagreements regarding how
much information is needed and whether consultation has been initiated.
Recommendation 2.3:
NOAA agrees with this recommendation. NOAA Fisheries will continue to
work with the action agencies to explore the effectiveness and
efficiency of the consultation process. In addition, we look forward to
continued cooperation with the action agencies to explore opportunities
to utilize programmatic consultations where possible. Along with the
USFS, BLM, and FWS, NOAA Fisheries is conducting a review of all
programmatic consultations issued to the USFS and BLM in Oregon,
Washington, and Idaho. The purpose of the review is to determine what
actions are currently included in programmatic consultations and
whether any existing programmatic consultations should be expanded or
new programmatic consultations created. As a result of GAO's report,
NOAA will advise cooperating action agencies of this recommendation and
determine how best to measure the effectiveness of programmatic
consultation as an improvement tool in the consultation process.
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
information-sharing 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.
[End of section]
Appendix V: Comments from the Forest Service:
United States Department of Agriculture
Forest Service
Washington Office
14tH & Independence SW P.O. Box 96090
Washington, DC 20090-6090:
File Code: 2670:
Date: FEB 27 2004:
Mr. Barry T. Hill:
Director Natural Resources and the Environment:
U.S. General Accounting Office:
441 G Street N.W. Washington, DC 20548:
Dear Mr. Hill:
Thank you for the opportunity to review and comment on the draft
General Accounting Office (GAO) Report, "Endangered Species: Federal
Agencies Have Worked to Improve the Consultation Process, but More
Management Attention is Needed," GAO-04-93. This draft is more thorough
and comprehensive than the first draft we reviewed. The Forest Service
generally agrees with the report's content and its recommendations. 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 the process.
In general, the report should more effectively acknowledge the
following points: (1) the multiple "benefits" often gained from the
Section 7 consultation rather than just focusing on the costs, (2)
there are many factors involved in evaluating the efficiency and
effectiveness of Section 7 consultation in addition to timeliness, (3)
Section 7 implementing regulations of the Endangered Species Act
provide for mutually agreed-to extensions, and (4) timely consultations
are dependent on the adequacy of information provided to the Fish and
Wildlife Service or National Marine Fisheries Service. Additional
comments, that may improve the overall scope of the report, are
enclosed.
If you have additional questions or concerns, please contact the Forest
Service Agency Audit Liaison, Sandy Coleman, at (703) 605-4940.
Sincerely,
Signed for:
DALE N. BOSWORTH
Chief:
cc: pdl wo nfs wfw directors team, Sandy T Coleman:
Enclosure:
USDA Forest Service Comments on the U.S. General Accounting Office
Draft Report GAO-04-93 "Endangered Species: Federal Agencies Have
Worked to Improve the Consultation Process, but More Management
Attention is Needed":
Forest Service Comments:
The report in general:
The report would be more effective if it acknowledged the "benefits"
that are often derived from Section 7 Consultation rather than simply
stressing the "costs" involved in doing consultation. Many Agency
projects have been better formulated and implemented, to achieve
multiple resource and management objectives, due to early and frequent
consultation with the U.S. Fish and Wildlife Service (USFWS) and the
Department of Commerce National Marine Fisheries Service (NMFS). While
significant time may be expended in Section 7 Consultation, if the
consultation process results in projects that are done in a manner that
better maintains the integrity of the ecosystems of concern, it may
provide added flexibility for the Forest Service to implement its
future activities. Relatively minor investments in consultation can
result in benefits that compound over time, as future actions that
could otherwise be problematic, are implemented faster due to
comprehensive consultation.
Similarly, the report seems to suggest that the only important factor
in evaluating the efficiency and effectiveness of Section 7
Consultation is its timeliness. Although the agencies strive to
complete all consultations within established timeframes, there are
often instances when doing so is not the highest priority of the action
agency, the applicant, or listed species being affected by the proposed
action. The Forest Service recommends that the report place greater
emphasis on the fact that there may be a number of valid reasons for a
consultation to exceed established timeframes. Delays sometimes occur
at the request of the Forest Service. In the past such reasons have
included: higher priority newer regulatory agency staffing limitations,
emergency consultation priorities, and National Environmental Policy
Act (NEPA) and National Forest Management Act (NFMA) analyses delays/
timeframes.
The report should also acknowledge that: (1) the implementing
regulations for Section 7 of the Endangered Species Act (ESA) provide
for mutually agreed-to extensions when additional data would provide
the necessary information base from which to formulate a biological
opinion; and (2) timely consultations are dependent on the adequacy of
information provided to the FWS or NMFS and staff resources they can
provide. An important factor for the Forest Service is to ensure
projects are prepared, approved, and implemented in a manner that
minimizes the likelihood of being legally challenged due to inadequate
consultation with the FWS or NMFS.
Throughout the report, references are made to "pre-consultation" and
attempts are made to bundle these activities into the timeframes
measuring consultation while pointing out that the agencies do not have
an effective mechanism to measure this time. It should be noted that
the pre-consultation period generally precedes finalization of the
proposed action and represents the period in which the action is
formulated and possibly modified, based on technical assistance from
the FWS or NMFS. On that basis, it is premature to include this period
as part of the statutory consultation process, since the Federal action
agency has not completely defined its action, which ultimately may not
even require consultation.
In addition, it is important to recognize that, during the pre-
consultation period, action agencies typically develop information that
is applicable for processes other than ESA Section 7 Consultation
(e.g., doing NEPA environmental analysis, doing NMFA viability
evaluations, etc.). Even if it were determined to be useful to track
such information, it is not typically appropriate to attribute this
entire time period solely to the Section 7 pre-consultation process.
During the pre-consultation process, work to develop and evaluate
proposed actions may be sporadic, that is, periods of weeks, months, or
longer may pass without significant work being completed on a proposed
action. When consultation is needed, we encourage agency personnel to
"consult early and consult often". This has paid off in developing and
implementing better projects. We do not even attempt to track resources
(staff, time, money) used only for consultation, because this activity
serves so many other key purposes in land and resource management
mission, is very difficult to attribute to one purpose alone, and
because it would remove resources from actually doing the T&E species
effects analyses that comprise consultation. For these reasons, we do
not believe that the report accurately portrays the value and
contribution of the pre-consultation process.
Comments regarding the GAO Recommendations for Executive Action:
Regarding the recommendations, the report focuses on the timeliness of
the consultation as a measure of the efficiency of the Section 7
Consultation process. However, timeliness is not necessarily the only
or the best measure of effectiveness and efficiency. The effectiveness
of the results of consultation is ensuring that Federal activities are
implemented within the context of species and ecosystem conservation.
The Forest Service has many examples of designing activities with this
context in mind and the timeliness of consultations also is improved.
The Agency recommends that the report contain a recommendation for all
agencies to make better use of Section 7(a)(1) of the ESA consultation
process to improve both the efficiency and the effectiveness of the
7(a)(2) part. Other comments regarding the recommendations are as
follows:
GAO Recommendation: GAO recommended that the Secretary of the Interior
and the Undersecretary of Commerce for Oceans and Atmosphere direct the
Directors of the Fish and Wildlife Service and the National Marine
Fisheries Service, in collaboration 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 pre-consultation in their data systems and ensure that such
information is gathered, maintained, and used to manage the process
effectively.
Forest Service Response: We concur with such a recommendation. However,
while we and the other agencies determine what can be done to implement
such a recommendation, we foresee considerable difficulty and cost
associated with identifying and tracking such levels of effort. For
example, while pre-consultation may continue over many months or even
years, only small portions of this time may be attributed to the ESA
pre-consultation process. This may require identifying and tracking of
individual hours or even portions of hours over long periods of time.
In addition, much of the information used in ESA consultation is
actually developed for other processes such as NEPA, NFMA, etc. We
foresee difficulty determining how to appropriately separate, identify
and apportion "consultation" work relative to our other
responsibilities, and also difficulty in adequately determining the
potential benefits of doing this.
GAO Recommendation: We recommend that the Secretaries of the Interior
and Defense, the Undersecretary of Commerce for Oceans and Atmosphere,
and the Director of the Forest Service, work together to resolve
disagreements about when consultation is needed and how detailed an
analysis is required given a proposed activity's likely effects on
species or habitat. The Secretaries and the Director should ensure that
their agreements are disseminated quickly to all staff involved in
consultations as well as the public.
Forest Service Response: We do not concur with such a recommendation.
Regulations contained at 50 CFR 402 specify when consultation is
needed. If there is disagreement regarding the application of these
regulations within the context of specific actions, resolution should
be based on the specific facts of the situation before the agencies. In
addition, how "detailed" an analysis is required depends on the
numerous unique components of three general factors: the proposed
action, the site characteristics, and the species involved. It does not
necessarily vary according to "a proposed activity's likely effects on
the species or habitat". This is, in fact, one of the purposes of doing
consultation. Regardless of the likely effects, sufficient detail needs
to be provided to support the determinations made. We believe that the
intent of the second portion of this recommendation can be addressed in
Recommendation 3 below.
GAO Recommendation: Refine guidance, as needed, on the type and
specificity of documentation required in a consultation.
Forest Service Response: We concur with this recommendation. Refining
such guidance would improve use and implementation of the Section 7
consultation process. However, we foresee difficulty achieving
consensus regarding specific guidance, given the uniqueness of each
consultation situation (see comments above).
Specific comments by page:
Page 1, first paragraph, second sentence: For some proposed actions,
some adverse effects to species are fully acceptable, as long as the
action does not jeopardize the species. In fact, this commonly occurs.
This should be reworded.
Page 1, first paragraph, last sentence: This gives an incomplete
summary of the purpose and objectives of the consultation process. It
also does not adequately highlight the importance of using the process
to develop and implement proactive agency actions whether or not they
directly advance T&E species recovery. We suggest the more
comprehensive and better wording given on the bottom of page 5 and top
of page 6 be incorporated into this paragraph.
Page 4, second paragraph: The two key issues are correct. Staffing by
FWS and NMFS has been a very significant concern to us. While
significant improvements have been made by the FWS and NMFS (in
addition to separate staffing increases to do National Fire Plan
consultation), there remain instances where insufficient staff is
available to do timely consultations. Disagreements about the extent to
which consultation is necessary also occur, but this is inherent in,
and at the heart of using, the consultation process tool - doing the
effects analyses for a given action, on a given site, and (potentially)
involving a given T&E species. Each situation is different.
Page 6, last paragraph: It should be recognized that to a great extent
the rareness of any jeopardy opinions can be attributed to the
collaborative work accomplished during pre-consultation.
Page 10, first sentence in top paragraph: Change to read: Similarly,
Forest Service projects can range from trail maintenance, to timber
harvesting and construction, and decommissioning of roads.
Page 12, last paragraph: Often delays in completion of informal
consultations result from mutual agreements between the agencies. Such
agreements are typically related to the action agency's work schedule.
For example, the Forest Service may request that the FWS delay
completion of informal consultation on a group of actions that they do
not anticipate being able to implement for several months due to the
availability of appropriate staff in favor of completion of
consultation on other projects that they anticipate being able to
implement fairly soon. While it is true that the FWS and NMFS databases
often do not track such information, and perhaps these databases should
track this information, it should be pointed out that at least a
portion of these delays are the result of mutual agreement. While this
information is presented a couple of pages later, by having it
separated from the subject paragraph, the relevance of this point is
lost.
Page 15, Available Data subsection: Please see our earlier comments
regarding the amount and type of work that occurs during the pre-
consultation period and the appropriateness of attributing this time
delay to the ESA. While much of this information is presented in the
last paragraph of this subsection, it would be more effective if this
information were better integrated into the first paragraph of this
subsection.
Page 19, Figure 6 (Diamond-shaped box): The question, listed in this
box, is not appropriate. A more appropriate question would be, "Has the
action agency provided sufficient information to fulfill the initiation
requirements of 50 CFR 402.14(c)?":
Page 21, last paragraph: The specific programmatic consultation
processes described in this paragraph are influenced not only by the
statute and consultation regulations, but also by a series of district
and ninth circuit court rulings regarding the adequacy of project-
specific review and consultation, and the specificity of information
available involved in the consultation.
Page 26, last paragraph: We have found that by engaging with the FWS or
NMFS early during either pre-consultation or Section 7(a)(1) program
reviews, we often develop a better understanding of the species'
conservation needs and how our actions may affect them. This commonly
leads to project designs that better incorporate species conservation
and meeting project objectives.
Pages 26 - 30: The graphs on these pages present a lot of information
that is not discussed. While the report discusses consultations that
exceed established timeframes, these graphs present data showing that
many of the consultations are conducted well ahead of established
timeframes. To present a fair and accurate picture that may better
assist in improving the Section 7 Consultation process or how agencies
use the Section 7 Consultation process, the same consideration should
be given to consultations completed early as to consultations completed
late.
Page 31: Reducing the total time spent in Section 7 Consultation is not
the only goal of "streamlining." Other goals are to formulate better
projects and to ensure better effects analysis so that consultations
are completed when they are ready to implement their actions. Thus, if
the total amount of time spent completing consultation has not been
shortened, but if by engaging in pre-consultation the work is completed
earlier, i.e., by the time we are ready to implement our action, we
typically consider this to be a success.
Page 32, first full paragraph, last two sentences: We agree with the
assessment of vulnerability presented here and it is consistent with
the guidance received from the Department of Justice. For this reason,
we recommend that all programmatic consultations include provisions for
site-specific (or project-specific) analysis. This provides useful
check that effects are not different that previously identified and
documented, and also helps ensure that actions covered by programmatic
consultations
are not vulnerable to successful legal challenge. The report should
note that programmatic consultations can be structured to reduce or
eliminate this vulnerability.
Page 33, top paragraph, first full sentence: The FWS and NMFS do not
have the authority to "require" consultation. Action agencies determine
for themselves when consultation is "really necessary." This sentence
would be more appropriate if "recommend consultation" replaced "require
consultation.":
Page 36, last paragraph, second sentence: This sentence misrepresents
the consultation handbook - "negligible" is not used. Note that
informal consultation (not "consultation") is the process used to
conduct and complete consultation when identified effects are
discountable, insignificant, or completely beneficial.
Page 38, first sentence: In the Pacific Coast Federation of Fisherman's
Association v. National Marine Fisheries Service court ruling cited in
footnote 15 of the report, the Court found that the FWS and NMFS must
evaluate "negative short-term effects." We recommend the final report
clearly convey that all discretionary Federal actions that are likely
to adversely affect (in the short or long-term) listed species or
critical habitat must comply with Section 7(a)(2) of the Endangered
Species Act through the formal consultation process. When completing
their biological opinion, the FWS or NMFS also considers the long-term
benefits of the action; however, one must recognize and identify
whether and the extent to which it may be important to ensure that
individuals of the species survive the short-term negative effects and
persists within the action area so they will be present to reap the
long-term benefits of the proposed action. In addition, without access
to range-wide information regarding the status of the species, it may
not be possible to accurately evaluate the short-term negative effects.
This further points to the distinctions between the roles of the action
agencies and the FWS and NMFS in the consultation process. Finally, the
Forest Service also recommend that the report acknowledge that many
actions with long-term benefits to listed species result in short-term
adverse effects that involve fully acceptable incidental take of these
species, which is authorized through the formal consultation process.
Page 41, first paragraph, last sentence: The Forest Service strongly
encourages this approach as it appears to meet the intent of the
statute, which contains the title of "Interagency Cooperation" for
Section 7.
Page 43, first paragraph, last sentence: The word "Service" should be
"Forest Service.":
Page 46: The same "average $10,000 costs" for a permit at Lake
Washington is cited three times in the report and two times in this
same section (pg. 42).
Page 50: The Director of the Forest Service should be changed to Chief
of Forest Service or to a Department Level recipient comparable to the
others receiving the review.
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. 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.
2. 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.
3. 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.
4. 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.
5. As we noted in comment 2 in our response to NOAA, we have
incorporated information on the value of preconsultation in the report.
6. 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.
7. 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
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.
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Trish McClure (202) 512-6318:
Staff Acknowledgments:
In addition to the individual named above, Bob Crystal, Jennifer
Duncan, Doreen Stolzenberg Feldman, Jaelith Hall-Rivera, Barbara
Johnson, Cynthia Norris, Tony Padilla, Judy Pagano, Jeff Rueckhaus, and
Pamela Tumler made key contributions to this report.
(360259):
FOOTNOTES
[1] Results 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.
[2] Anadromous species live part of their lives in freshwater and part
in saltwater.
[3] If 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.
[4] The 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.
[5] Required actions are intended to mitigate the activity's impact by
minimizing the extent of incidental take.
[6] The 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. § 1536(b)(1)(A) and 50 C.F.R. § 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.
[7] FWS 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.
[8] Many 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.
[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).
[10] NMFS has no offices in Montana.
[11] Because the NMFS database was implemented in January 2001, we did
not obtain data for the first quarter of fiscal year 2001.
[12] FWS' Portland field office has maintained electronic data needed
to measure timeliness since 1996.
[13] U.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).
[14] As 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.
[15] See, 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.
[16] This 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.
[17] Other FWS field offices did not provide estimates.
[18] U.S. General Accounting Office, Endangered Species Program:
Information on How Funds Are Allocated and What Activities Are
Emphasized, GAO-02-581 (Washington, D.C.: June 25, 2002).
[19] Montana is in a different FWS region than Idaho, Oregon, and
Washington.
[20] These data are for Corps consultations and staff in Idaho, Oregon,
and Washington; the Corps' consultation workload in Montana is
negligible.
[21] See Pacific Coast Fed'n of Fishermen's Assn's, Inc. v. National
Marine Fisheries Service, 265 F.3d 1028, 1037 (9TH Cir. 2001).
[22] The NMFS data, however, exclude the first quarter of fiscal year
2001 because the NMFS regional database was implemented in January
2001.
[23] In 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.
[24] Results 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.
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