Endangered Species
Fish and Wildlife Service Uses Best Available Science to Make Listing Decisions, but Additional Guidance Needed for Critical Habitat Designations
Gao ID: GAO-03-803 August 29, 2003
Recent concerns about the U.S. Fish and Wildlife Service's (Service) endangered species listing and critical habitat decisions have focused on the role that "sound science" plays in the decision-making process--whether the Service bases its decisions on adequate scientific data and properly interprets those data. In this report, GAO assesses the extent to which (1) the Service's policies and practices ensure that listing and critical habitat decisions are based on the best available science and (2) external reviewers support the scientific data and conclusions that the Service used to make those decisions. In addition, GAO highlights the nature and extent that litigation is affecting the Service's ability to effectively manage its critical habitat program.
The Endangered Species Act requires the U.S. Fish and Wildlife Service to identify, or "list," species that are at risk of extinction and provide for their protection. The act also generally requires the Service to designate critical habitat--habitat essential to a species' conservation--for each listed species. The Service must use the best available science when making listing and critical habitat decisions. The Service's policies and practices generally ensure that listing and critical habitat decisions are based on the best available science. The Service consults with experts and considers information from federal and state agencies, academia, other stakeholders, and the general public. Decisions are subject to external "peer review" and extensive internal review to help ensure that decisions are based on the best available science and conform to contemporary scientific principles. External reviews indicate that the Service's listing and critical habitat decisions generally have scientific support, but concerns over the adequacy of critical habitat determinations remain. Listing decisions are often characterized as straightforward, and experts, peer reviewers, and others generally support the science behind these decisions. Critical habitat designations, on the other hand, are more complex and often require additional scientific and nonscientific information. As a result, peer reviewers often expressed concern about the specific areas designated, while other experts expressed concerns about the adequacy of the data available to make designations. The Service's critical habitat program has been characterized by frequent litigation. Specifically, the Service has lost a series of legal challenges that will require significant resources for the next 5 fiscal years to respond to court orders and settlement agreements for designating critical habitat. As a result, the Service is unable to focus resources on activities it believes provide more protection to species than designating critical habitat. While the Service recognizes that it has lost control of the program, it has yet to offer a remedy. Without taking proactive steps to clarify the role of critical habitat and how and when it should be designated, the Service will continue to have difficulty effectively managing the program.
Recommendations
Our 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.
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GAO-03-803, Endangered Species: Fish and Wildlife Service Uses Best Available Science to Make Listing Decisions, but Additional Guidance Needed for Critical Habitat Designations
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Needed for Critical Habitat Designations' which was released on
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Report to Congressional Requesters:
August 2003:
ENDANGERED SPECIES:
Fish and Wildlife Service Uses Best Available Science to Make Listing
Decisions, but Additional Guidance Needed for Critical Habitat
Designations:
GAO-03-803:
GAO Highlights:
Highlights of GAO-03-803 a report to congressional requesters
Why GAO Did This Study:
Recent concerns about the U.S. Fish and Wildlife Service‘s (Service)
endangered species listing and critical habitat decisions have focused
on the role that ’sound science“ plays in the decision-making process”
whether the Service bases its decisions on adequate scientific data
and properly interprets those data. In this report, GAO assesses the
extent to which (1) the Service‘s policies and practices ensure that
listing and critical habitat decisions are based on the best available
science and (2) external reviewers support the scientific data and
conclusions that the Service used to make those decisions. In
addition, GAO highlights the nature and extent that litigation is
affecting the Service‘s ability to effectively manage its critical
habitat program.
What GAO Found:
The Endangered Species Act requires the U.S. Fish and Wildlife Service
to identify, or ’list,“ species that are at risk of extinction and
provide for their protection. The act also generally requires the
Service to designate critical habitat”habitat essential to a species‘
conservation”for each listed species. The Service must use the best
available science when making listing and critical habitat decisions.
The Service‘s policies and practices generally ensure that listing and
critical habitat decisions are based on the best available science.
The Service consults with experts and considers information from
federal and state agencies, academia, other stakeholders, and the
general public. Decisions are subject to external ’peer review“ and
extensive internal review to help ensure that decisions are based on
the best available science and conform to contemporary scientific
principles.
External reviews indicate that the Service‘s listing and critical
habitat decisions generally have scientific support, but concerns over
the adequacy of critical habitat determinations remain. Listing
decisions are often characterized as straightforward, and experts,
peer reviewers, and others generally support the science behind these
decisions. Critical habitat designations, on the other hand, are more
complex and often require additional scientific and nonscientific
information. As a result, peer reviewers often expressed concern about
the specific areas designated, while other experts expressed concerns
about the adequacy of the data available to make designations.
The Service‘s critical habitat program has been characterized by
frequent litigation. Specifically, the Service has lost a series of
legal challenges that will require significant resources for the next
5 fiscal years to respond to court orders and settlement agreements
for designating critical habitat. As a result, the Service is unable
to focus resources on activities it believes provide more protection
to species than designating critical habitat. While the Service
recognizes that it has lost control of the program, it has yet to
offer a remedy. Without taking proactive steps to clarify the role of critical habitat and how and when it should be designated, the Service will continue to have difficulty effectively managing the program.
What GAO Recommends:
Because the Service‘s critical habitat program faces serious
challenges, including potential legal challenges and questions
regarding the role of critical habitat in species conservation, GAO is
recommending that the Service provide clear strategic direction for
the critical habitat program, in a specified time frame, by
identifying the issues affecting the Service‘s ability to effectively
manage the program and recommending policy/guidance, regulatory, and/
or legislative changes necessary to address these issues.
www.gao.gov/cgi-bin/getrpt?GAO-03-803.
To view the full product, including the scope and methodology, click
on the link above. For more information, contact Barry T. Hill at
(202) 512-3841 or hillbt@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Procedures Are in Place to Ensure That Listing and Critical Habitat
Decisions Are Based on the Best Available Science:
Peer Reviewers and Others Conclude that Most Listing Decisions Are
Based on Best Available Science, but Concerns about Critical Habitat
Decisions Remain:
The Service Has Failed to Address Known Problems with the Critical
Habitat Program:
Conclusion:
Recommendation for Executive Action:
Agency Comments:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Overview of The Endangered Species Act:
Listing Species as Endangered or Threatened:
Critical Habitat:
Recovery Plans:
Consultations with Federal Agencies:
Habitat Conservation Plans:
Appendix III: Peer Reviewers' Responses to Listing and Critical Habitat
Decisions for Fiscal Years 1999 through 2002:
Appendix IV: The Nature of Scientific Controversy Surrounding Listing
and Critical Habitat Decisions:
Listing:
Critical Habitat:
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Staff Acknowledgments:
Table:
Table 1: Species Delisted on the Basis of New Information:
Figures:
Figure 1: Number of Domestic Species Listed as Threatened or Endangered,
1981 through 2002:
Figure 2: Number of Domestic Species with Critical Habitat, 1981 through
2002:
Figure 3: The Service's Process to List Species as Threatened or
Endangered:
Figure 4: Peer Review Response Rates for Listing and Critical Habitat
Decisions, Fiscal Years 1999 through 2002:
Figure 5: Canada lynx:
Figure 6: California red-legged frog:
Figure 7: Southwestern willow flycatcher:
Letter August 29, 2003:
The Honorable Bob Goodlatte
Chairman, Committee on Agriculture
House of Representatives:
The Honorable Scott McInnis
Chairman, Subcommittee on Forests and Forest Health
Committee on Resources
House of Representatives:
The Honorable Richard Pombo
Chairman, Committee on Resources
House of Representatives:
The Congress enacted the Endangered Species Act in 1973 to protect
plant and animal species whose survival is in jeopardy. The U.S. Fish
and Wildlife Service (Service) is responsible for implementing the act
for freshwater and land species.[Footnote 1] For many years, the act,
its implementation, and the Service have served as lightning rods in
the ongoing national debate concerning the tradeoffs between economic,
social, and environmental values. The act requires the Service to list
as endangered any species facing extinction throughout all or a
significant portion of its range and to list as threatened any species
likely to become endangered in the foreseeable future. The Service must
make decisions to list species solely on the basis of the best
available scientific and commercial data, such as biological or trade
data obtained from commercial publications. The act also generally
requires the Service to designate critical habitat--habitat essential
to a species' conservation--when listing a species; the loss of habitat
is often the principal cause of species decline. For critical habitat
decisions, the act again requires the Service to consider the best
available scientific data, but also requires the Service to consider
the economic impact and other relevant impacts of designating
particular areas as critical habitat. The Service is also required to
develop a plan to recover the listed species to the point that it is no
longer threatened or endangered, an achievement marked by its removal,
or delisting, from the list of threatened or endangered species.
Recent concerns about the Service's listing and critical habitat
decisions have focused on the role that "sound science" plays in the
decision-making process and whether the Service bases its decisions on
adequate scientific data and properly interprets those data. Critics of
the decisions warn that improper listing and critical habitat decisions
may cause social and economic disruption and divert funding and
attention away from other species truly facing extinction. In addition
to concerns about its use of science, the Service is having difficulty
managing the listing and critical habitat programs, in part because of
extensive litigation. Currently, the Service is experiencing a
significant backlog of decisions to list species and to designate
critical habitat. The Service has identified more than 200 species that
qualify for listing but for which the listing process has not yet begun
because of resource limitations or higher-priority actions being taken
for other species.
You asked us to assess the Service's consideration and use of science
in its decisions to list species as threatened or endangered and to
designate critical habitat. Specifically, we reviewed the extent to
which (1) the Service's policies and practices ensure that listing and
critical habitat decisions are based on the best available science and
(2) outside reviewers support the scientific data and conclusions that
the Service uses to make listing and critical habitat decisions. In
addition, in performing our work, we identified certain factors that
could continue to affect the Service's ability to effectively manage
its critical habitat program. Our report highlights the nature and
extent of those problems as well.
In meeting our objectives, we examined decision documents for the 101
listing and critical habitat decisions that the Service issued during
fiscal years 1999 through 2002. There were 64 listing decisions and 37
critical habitat decisions covering 108 and 36 species, respectively.
To evaluate the adequacy of the science used to support these
decisions, we reviewed (1) the Service's policies, procedures, and
practices for making listing and critical habitat decisions; (2) the
responses of peer reviewers who commented on 79 listing and critical
habitat actions; and (3) judicial decisions related to listing and
critical habitat actions decided during fiscal years 1999 through 2002.
We also interviewed staff at seven field and regional offices and at
Service headquarters to help understand the Service's decision-making
process. We interviewed individuals with academic, industry, and
conservation organizations and the National Academy of Sciences to
better understand why some of the Service's decisions are
controversial. In this report, we define "science" as the collection
and interpretation of biological information, such as identification of
the species and its habitat needs. At no point in our review did we
attempt to directly evaluate the scientific analysis on which the
Service based its listing and critical habitat decisions. A more
detailed description of our scope and methodology is presented in
appendix I.
Results in Brief:
The Service's policies and practices generally ensure that listing and
critical habitat decisions are based on the best available science. In
making listing and critical habitat decisions, the Service consults
with experts both inside and outside the federal government and
considers studies or other data from federal and state agencies, other
stakeholders, and the general public. Both proposed decisions and final
decisions are subject to internal review at field, regional, and
headquarters offices to help ensure that the professional judgment is
sound and conforms to contemporary scientific theories and principles.
In addition, the Service also has a policy to ask at least three
independent scientific experts in a relevant field to "peer review"
proposed decisions to list species or designate critical habitat to
help ensure that decisions are based on the best available science.
Reviews by outside experts and others indicate that the Service's
listing and critical habitat decisions are generally based on the best
available science, but that there are concerns over the adequacy of the
data used to support critical habitat designations. For listing
decisions, peer reviewers overwhelmingly supported the science behind
the decisions the Service issued between fiscal years 1999 and 2002.
Additionally, during that same time period, the courts overturned few
listing decisions because the Service relied on faulty or inadequate
science. Further evidence that listing decisions are scientifically
sound is provided by the fact that only 10 of the more than 1,200
domestic listed species have been delisted after new scientific
information surfaced that indicated the original listing was not
warranted. In contrast, while external reviews indicate that most
critical habitat decisions are based on the best available science,
experts and others we spoke to expressed concerns over the adequacy of
the information available to support the designations. While peer
reviewers generally agreed with the science supporting the Service's
critical habitat decisions, they often also provided suggestions for
modifying the designations. In three decisions, peer reviewers
disagreed with the Service's designation of critical habitat, stating
that the Service had insufficient information to make the decision.
Although the Service has frequently lost legal challenges over its
critical habitat designations, courts have overturned few of the
Service's critical habitat decisions as not supported by the best
available science. Instead, most of the challenges dealt with
nonscience issues, such as the Service's failure to designate habitat
for a listed species.
Key court decisions have invalidated certain practices adopted by the
Service, causing its critical habitat program to be dominated by
litigation. In 1997, the Service lost a lawsuit challenging its
practice of not designating critical habitat for many species; the
Service did not designate critical habitat because it believes it
conveys little additional protection to listed species. This suit led
to numerous other suits, resulting in court orders directing the
Service to designate critical habitat for many previously listed
species. In 1999, the Service announced that its system for designating
critical habitat was not working and that critical habitat litigation
and related court orders were consuming much of the program's
resources. To remedy the situation, the Service announced its intention
to develop guidance and/or regulations to clarify the role of critical
habitat in endangered species conservation and to streamline the
process used to designate critical habitat. However, such guidance and
clarification were never issued, and the Service continues to follow
the same system that it recognizes is unworkable. In 2001, the Service
lost another lawsuit, which challenged the adequacy of the economic
analyses the Service used to support its critical habitat designations.
These two lawsuits, and subsequent legal challenges based on similar
issues, have come to dominate the Service's critical habitat program.
In 2002, we reported on problems facing the critical habitat program
and recommended that the Service expedite its efforts to issue guidance
for the program; however, the Service has yet to do so.[Footnote 2] If
the Service does not take proactive steps to clarify the role of
critical habitat and how and when it should be designated, we believe
it will continue to have difficulty effectively managing the program.
Therefore, we recommend that the Service--through guidance,
regulations, or other policy tools--provide clear strategic direction
for the critical habitat program in order to provide the greatest
conservation benefit to threatened and endangered species in the most
cost-effective manner. The Department of the Interior did not respond
to our request to comment on the recommendation.
Background:
The Congress enacted the Endangered Species Act in 1973 to conserve
threatened or endangered plant and animal species. The act requires the
Service to base its determination of whether a species is endangered or
threatened solely on the basis of the best available scientific and
commercial data.[Footnote 3] Available data includes biological or
trade data obtained from scientific or commercial publications,
administrative reports, maps or other graphic materials, or experts on
the subject. Using the best available data, the act requires the
Service to determine whether a species should be listed as threatened
or endangered by analyzing its status based on the following five
factors:[Footnote 4]
* present or threatened destruction, modification, or curtailment of a
species habitat or range;
* overuse for commercial, recreational, scientific, or educational
purposes;
* disease or predation;
* inadequacy of existing regulatory mechanisms; or:
* other natural or manmade factors affecting a species' continued
existence.
As of June 2003, the Service had listed 1,263 species in the United
States as threatened or endangered. This total included 517 animal
species and 746 plant species.[Footnote 5] The number of species listed
per year has varied considerably, as shown in figure 1. There are also
558 foreign species listed as threatened or endangered.
Figure 1: Number of Domestic Species Listed as Threatened or
Endangered, 1981 through 2002:
[See PDF for image]
Note: There have been 25 domestic species delisted since the inception
of the act. These species are not included in the figure. In addition,
16 species have been reclassified from endangered to threatened.
[End of figure]
As of June 2003, the Service was in the process of listing 36 more
species and had identified 251 species as candidates for listing. The
act also requires the Service to designate critical habitat for listed
species. Critical habitat is a specific geographic area that is
essential for the conservation of a threatened or endangered species
and that may require special management and protection.[Footnote 6] As
of June 2003, 417 domestic species had critical habitat designated. The
number of critical habitat designations per year has varied
considerably, as shown in figure 2.
Figure 2: Number of Domestic Species with Critical Habitat, 1981
through 2002:
[See PDF for image]
Note: Some species may have had critical habitat designated more than
one time; the graph includes only the first time that critical habitat
was designated.
[End of figure]
The Endangered Species Act has provisions to protect and recover
species once they are listed. The act prohibits the "taking" of listed
animal species by any party--federal or nonfederal.[Footnote 7]
"Taking" or "take" means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect a listed species.[Footnote 8] Also,
federal agencies must ensure that their activities, or any activities
they fund, permit, or license, do not jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of its critical habitat. The act establishes a process for
federal agencies to consult with the Service about their activities
that may affect listed species. In addition, the act requires that the
Service develop a recovery plan to reverse the decline of each listed
species and ensure its long-term survival. A recovery plan may include
a variety of methods and procedures to recover listed species, such as
protective measures to prevent extinction or further decline, habitat
acquisition and restoration, and other on-the-ground activities for
managing and monitoring endangered and threatened species. To date,
seven domestic species have been delisted due to recovery. (App. II
provides additional information on the process used by the Service to
protect listed species.):
Procedures Are in Place to Ensure That Listing and Critical Habitat
Decisions Are Based on the Best Available Science:
The Endangered Species Act requires the Service to use the best
available scientific data when deciding to list species or designate
critical habitat. The "best available" standard does not obligate the
Service to conduct studies to obtain missing data, but it prohibits the
Service from ignoring available data. The Service goes through an
extensive series of procedural steps that involves public participation
and review by outside experts to help ensure that it collects relevant
data and uses it appropriately. Although the process alone is not
sufficient to ensure the accuracy of the Service's listing and critical
habitat decisions, it generally ensures that the Service is using and
considering the "best available" data.
Internal Decision-Making Process Helps Ensure That the Service Uses
Best Available Science in Making Decisions:
The Service follows a rigorous process in listing a species as
endangered or threatened, designating critical habitat, or removing a
species from the endangered and threatened list. The Service's process
includes following a rulemaking procedure, established by the
Endangered Species Act, supported by additional procedures under
Service regulations and guidance. The complete text of the proposed and
final rules and related information (including a summary of data on
which the proposal is based and a summary of comments received on the
proposal) are published in the Federal Register, the government's
official publication for making public the regulations and legal
notices issued by federal agencies. The act and regulations require the
Service to provide an opportunity for public participation in the
rulemaking process, notify affected states and local jurisdictions and
invite comments from them and other interested parties, notify
newspapers and professional journals, and hold at least one public
hearing, if requested, within 45 days of publishing the proposal.
Additionally, Service procedures provide for listing and critical
habitat decisions to be reviewed internally to help ensure that the
professional judgment that the Service's scientists exercise when
weighing and interpreting the collected data is sound and conforms to
contemporary scientific theories and principles.[Footnote 9]
The process to list a species begins either through a petition from an
individual, group, or state agency or through the initiative of the
Service (see fig. 3).[Footnote 10]
Figure 3: The Service's Process to List Species as Threatened or
Endangered:
[See PDF for image]
[End of figure]
When a petition is filed to list a species, the Service provides a copy
of the petition to, and requests information from, appropriate state
agencies and affected tribal governments. The Service uses the
information that it receives from these parties (or that which is
contained in the petition or otherwise readily available) to make its
initial determination as to whether a species may be threatened or
endangered, and if so, to proceed with data gathering and
analysis.[Footnote 11] The act requires the Service to make this
determination generally within 90 days of receiving the petition. If
the Service determines that it should proceed, it conducts a "status
review"--a review of all the available information on a species--to
determine whether the species warrants protection under the act. To
conduct the status review, the Service solicits comments and requests
information from the general public (by publishing a notice in the
Federal Register) and contacts affected local, state, tribal and
federal agencies; interested conservation or industry groups; and
scientific organizations or professionals interested in and/or
knowledgeable about the species. The Service may also fund field
surveys, museum research, and literature searches in order to compile
available information. Service scientists who conduct status reviews
told us that they often work closely with experts from other government
agencies, academia, and elsewhere to help gather and interpret
information. In some instances, the Service initiates a review of a
species without a petition, for which it conducts a candidate
assessment--similar to a status review--to identify available
information.
Within 12 months of receiving a petition for which the Service
proceeded with a status review, the Service must determine whether the
species' listing is warranted. If a Service field office makes an
initial determination that the listing is warranted, it prepares a
proposed rule for publication in the Federal Register. Before the
proposed rule is published, a draft receives considerable internal
review by officials in the Service's field, regional, and headquarters
offices.[Footnote 12] The review by officials in the field and regional
offices helps ensure the exercise of sound professional judgment. The
field office that is responsible for the listing provides the
appropriate regional office with the draft of the proposed rule and all
supporting scientific information. Officials in the regional office
review the proposed rule to ensure that scientific information supports
the proposed rule. Regions are responsible for ensuring that the
proposed rule is scientifically accurate and biologically and legally
sound. Regional officials told us that the review is an opportunity for
the region to identify information gaps and issues concerning how the
information supports the conclusions. At the Service's headquarters,
the draft proposed rule is reviewed to ensure that it is consistent
with other listing rules and complies with national policies. Either
the Director of the Fish and Wildlife Service or the Assistant
Secretary for Fish and Wildlife and Parks approves all proposed rules
before publication.
Upon publication, the public has at least 60 days to provide comments
on a proposed rule. The Service may extend the public comment period
and/or reopen it at a later date. Service officials told us that the
public comment period is an opportunity to reach biologists,
scientists, academicians, and advocacy groups that the Service may not
have contacted previously. The Service also holds public hearings, if
requested. At the end of the public comment period, the Service
reevaluates all the data, including the comments received since the
proposal was published, to determine whether the listing is still
warranted. If not, the proposal will be withdrawn. The Service must
publish its final decision within 12 months of its proposal. In cases
when experts disagree on the accuracy or sufficiency of the available
data concerning the proposed listing, or the release of additional
information that may affect the outcome of the petition is expected,
the proposal may be extended 6 months beyond the normal 12-month time
frame. In the event that the listing is warranted, the Service prepares
a final rule, incorporating appropriate changes based on the
information received during the comment period. Final rules are subject
to the same internal review process as proposed rules and are approved
by either the Director of the Fish and Wildlife Service or Assistant
Secretary for Fish and Wildlife and Parks before being published.
The procedures for designating critical habitat are similar to those
for listing a species. However, in designating critical habitat, the
Service must also take into consideration the economic and other
impacts of specifying any particular area as critical habitat. The
Assistant Secretary of Fish and Wildlife and Parks approves critical
habitat designations.
Officials at all levels of the agency demonstrated familiarity with the
requirements of the review process and stated that they believe it
provides the general guidelines necessary to ensure the best available
data are identified and properly interpreted. Field office officials
noted that proposed and final rules are challenged internally to ensure
they can withstand public scrutiny and that while rulemakings are
initiated at the field level, extensive review ensures that the entire
agency is on board before anything is finalized. Scientists and other
agency personnel told us that they use the process to test the validity
of their listing and critical habitat decisions. Some officials
emphasized the crucial role that the experience and expertise of the
Service's scientists play in ensuring that listing and critical habitat
decisions are based on the best available science.
Outside Experts Review Proposed Rules:
Peer review is considered to be the most reliable tool to ensure that
quality science will prevail over social, economic, and political
considerations in the development of a particular product or decision.
Peer review--a routine component of science--can substantially enhance
the quality and credibility of the scientific or technical basis for a
decision. For regulatory decisions, peer review can provide for
independent and expert analysis to complement the adversarial and
political nature of rulemaking.
While many federal agencies were already using peer review, the Office
of Management and Budget (OMB) issued guidance in 2002 recommending
that federal agencies utilize formal, independent external peer review
(peer review by individuals outside of the agency) to ensure the
quality of data and analytic results disseminated to the
public.[Footnote 13] It also recommended that peer reviewers be
selected primarily on the basis of their technical expertise, that they
disclose any source of bias (either prior technical or policy positions
or sources of personal and institutional funding from which they may
benefit), and that peer review be conducted in an open and rigorous
manner.[Footnote 14]
Federal agencies have adopted a variety of peer-review practices,
depending on the nature of the product or decision under review. As we
reported in 1999, peer-review practices at federal agencies vary
according to their intended use and form.[Footnote 15] According to
OMB's 2002 guidance, agencies should tailor the rigor and intensity of
peer review in accordance with the significance of risk or management
implications of the information involved. The form of peer review can
range from informal consultations with agency colleagues not involved
in the earlier stages of the project to formal external advisory
panels, which can span several years and cost thousands of dollars. In
addition, for each different form of peer review, there are multiple
variations--the amount of time allocated for the review, the number of
reviewers, and whether the review occurs internally or externally--all
of which affect the overall time and cost required to conduct a review.
In addition to its internal decision-making processes, the Service uses
external peer review of listing and critical habitat decisions to
ensure that the best biological and commercial information is being
considered. The Service's peer-review policy requires officials to
solicit the opinions of three appropriate and independent experts
regarding scientific data and assumptions supporting listing and
critical habitat decisions.[Footnote 16] Peer reviewers are selected at
the discretion of the field office scientists responsible for
developing listing and critical habitat decisions. The reviewers, who
may come from the academic and scientific community, tribal and other
Native American groups, federal and state agencies, and/or the private
sector, are selected on the basis of their independence and expertise
on the species being considered, similar species, the species' habitat,
or other relevant subject matter. The Service's scientists may ask peer
reviewers to critique specific aspects of the proposed rule, such as
the Service's interpretation of a particular study, or they may ask
reviewers to comment on the rule in its entirety.
The Service's peer-review policy generally appears to be appropriate
for the circumstances in which it is used. Although other agencies may
use more rigorous forms of peer review, such as convening a peer-review
panel or a science advisory board, the Service's peer-review process
allows the Service to make listing and critical habitat decisions under
relatively short time frames (the Service usually asks peer reviewers
to perform their review during the public comment period--normally 60
days--while a peer-review panel may span several months or years).
However, to help ensure the identification of complete and current
information on a species and its habitat, the Service may contact
experts during the status review. In addition, any decisions that are
issued as "final" rules can later be reconsidered as circumstances
warrant or new information becomes available. In fact, a species can be
delisted if new information surfaces indicating that the original
decision to list was not warranted.
One limitation that the Service faces in getting an independent review
is the scarcity of experts on a particular species. For example, in
some instances, the most qualified experts to peer review a decision
may have authored some of the studies that the Service used to support
its decision, forcing the Service to balance expertise with
independence. However, according to a National Academy of Sciences
report that reviewed the Environmental Protection Agency's use of peer
review for similar actions, to choose an individual to peer review who
is both an expert and independent might be impossible, or might not
promote the best possible review.[Footnote 17] In such cases, an
appropriate balance of views may be sought to ensure that different
interpretations on the scientific and technical merit of a decision are
taken into consideration. Such cases should, however, be fully
disclosed. Other organizations have developed procedures for assessing
the independence of peer reviewers, ranging from simply requiring peer
reviewers to disclose any potential bias, to using third parties to
identify peer reviewers based, in part, on their independence. Service
officials told us that they have not adopted a formal procedure to
assess peer reviewers' independence, and the Service does not publicly
disclose in the Federal Register potential conflicts or prior
involvement by its peer reviewers when the Service publishes the final
rule.
The Service generally complied with its peer-review policy of
soliciting peer review from at least three reviewers during fiscal
years 1999 through 2002. During this time, the Service solicited three
or more peer reviewers in 94 out of the 100 listing and critical
habitat decisions it made.[Footnote 18] In three instances the Service
solicited fewer than three peer reviewers, and in three other instances
documentation was unavailable to indicate how many reviewers were
asked.[Footnote 19] (See app. III for a complete list of the decisions
with the number of peer reviewers solicited, the number that responded,
and how they responded.):
While the Service generally complied with its policy to seek peer
reviewers, reviewers often did not respond. As shown in figure 4, the
Service received responses from three or more peer reviewers in 38
decisions for which it solicited at least three peer reviewers. It
received either one or two responses in 41 decisions, and no responses
in 15 decisions.
Figure 4: Peer Review Response Rates for Listing and Critical Habitat
Decisions, Fiscal Years 1999 through 2002:
[See PDF for image]
Note: Response rates are for the 94 decisions for which the Service
solicited at least 3 peer reviewers. Overall, the Service asked 422
experts to peer review the 100 listing and critical habitat decisions
made during fiscal years 1999 through 2002 and received 212 responses
(50 percent response rate).
[End of figure]
Field office scientists, as well as an expert on peer review, reported
a variety of reasons for the limited number of responses, including (1)
the potential peer reviewers had busy schedules and felt constrained by
the short time frames allotted to conduct the review, and (2) the
potential reviewers were unwilling to conduct peer review either
because they did not want to become involved in a controversial
decision or because they did not want to work without compensation. In
addition, the field office scientists reported that potential peer
reviewers may not be inclined to conduct peer review because they found
nothing to criticize or had already provided comments at an earlier
stage of the decision, such as during the status review.
Recognizing the importance of peer review, some regional and field
offices have taken steps to increase the number of respondents. For
example, some field offices contact potential peer reviewers in
advance, rather than initiating contact just before the decision is
open for peer review; others maintain communication with the peer
reviewers throughout the process. For example, the Pacific Islands
field office in Honolulu, Hawaii, has assigned an administrative staff
person to initiate phone calls and E-mails to help remind and encourage
peer reviewers to respond. This staff person also monitors the
implementation of the peer-review policy and tracks results. In order
to increase the likelihood that at least three peer reviewers respond
to a request, some field offices request peer reviews from more than
three individuals. Field office scientists suggested other ways to
increase the response rate, such as providing monetary compensation,
using a third party to select and coordinate peer review, narrowing the
scope of the review, and providing more time for review.
Peer Reviewers and Others Conclude that Most Listing Decisions Are
Based on Best Available Science, but Concerns about Critical Habitat
Decisions Remain:
External reviews of listing and critical habitat decisions indicate
that most decisions are generally scientifically supported, but
concerns about the adequacy of critical habitat determinations remain.
Listing decisions are often characterized as straightforward, requiring
the Service to answer only a "yes or no" question as to whether a
species warrants inclusion on the threatened or endangered list.
Critical habitat designations, on the other hand, are more complex and
often require further information on the species' habitat requirements
and other management considerations. Peer reviewers often expressed
concerns about the specific areas designated as critical habitat, while
other experts expressed concerns about the adequacy of the information
available to make the designation.
Little Scientific Disagreement Surrounds Listing Decisions:
Experts and others have found most of the Service's listing decisions
to be scientifically supported. Experts knowledgeable about the
Endangered Species Act and recent studies assessing the Service's use
of science in making listing decisions concur that the Service's
listing decisions are generally supported. Similarly, experts not
affiliated with the Service have peer-reviewed proposals to list
species and overwhelmingly supported the Service's decisions. The
courts have overturned few listing decisions on the basis of inadequate
science, and the Service has delisted few species on the basis of new
information that suggested that protection under the act was not
originally warranted.
Experts and Others Generally Support Service Listing Decisions:
Experts, Service officials, and others knowledgeable about the
Endangered Species Act largely agree that most listing decisions have
been relatively straightforward and scientifically supported. Experts
and others we spoke to generally agreed that most listed species
probably deserved being listed under the current standard for best
available scientific information. For example, several attorneys, who
represent the regulated community in challenges to the Service's
decisions, stated that, given the Service's short time frames and
limited resources, the science used to support most listing decisions
did not present a significant problem. However, these attorneys and
others contend that the "best available data" standard does not provide
enough certainty that a species is threatened or endangered and suggest
that a more stringent standard should be developed. On the other hand,
interested parties representing a diverse set of interests raised
concerns that Service officials at the Headquarters level are
succumbing to political pressures to not list species despite support
from regional and field scientists who believe evidence shows that
listing is warranted. Service scientists told us they believe many
listed species have low populations and/or face clearly identified
threats, indicating that the species are at risk. They said that many
listing decisions have been made to protect species native to a
specific area, with a narrow range, or for which substantial scientific
information was already available or easy to collect. On the other
hand, the scientists noted that collecting information becomes more
difficult and costly when a wide-ranging species may be at risk.
Additionally, several scientific disagreements regarding listing
decisions have surfaced in recent years, mostly concerning whether the
amount of information available at the time a decision is made suffices
as a basis for a decision. (See app. IV for information on the nature
of scientific controversy surrounding the Service's decisions to list
species.) Finally, many of the experts we spoke with had concerns about
the science used to support other aspects of the act, such as recovery
actions or consultations with federal entities on proposed actions that
could potentially harm a listed species.
Several studies have supported the Service's use of science in making
listing decisions. The Ecological Society of America--a professional
society of ecologists representing ecological researchers in more than
60 countries--released a study on the use of science in achieving the
goals of the act that concluded that the major problem with the listing
process has been its slowness rather than the quality of the listing
decisions.[Footnote 20] The National Research Council (NRC) reached
similar conclusions in a 1995 report, finding that many of the
conflicts and disagreements over the Endangered Species Act do not
appear to be based on scientific issues.[Footnote 21] More recently, in
2002, NRC reviewed the genetic evidence used to support one particular
listing decision, the listing of the Gulf of Maine Atlantic salmon
distinct population segment.[Footnote 22] It concluded that Maine
salmon are genetically distinct from other salmon, supporting the
Service's decision to list the species.
Peer Reviewers Overwhelmingly Support the Service's Use of Science in
Making Listing Decisions:
The Service received 143 peer-review responses for 54 of the 63 listing
decisions finalized between fiscal years 1999 and 2002 and no responses
for the remaining 9 decisions (see app. III). In 48 of these decisions,
reviewers providing comments unanimously agreed with the Service's
scientific conclusions or otherwise indicated support for the decision
to list the species. In two decisions, the Service reported that one of
the peer reviewer's opinions was "neutral," and the rest of the
opinions were supportive. In two other decisions, we were unable to
determine the nature of one of the peer reviewer's response. Peer
reviewers disagreed with the Service in the following two decisions:
* Alabama sturgeon. One of the five reviewers to provide comments on
the proposal to list the Alabama sturgeon, a freshwater fish
historically found throughout the Mobile River basin of Alabama and
Mississippi, disagreed with the Service's proposed listing
determination. While the reviewer did not directly respond to the
Service's request for peer review, he did provide comments at one of
the public hearings regarding the proposed rule. The reviewer argued
that the Alabama sturgeon was not a valid species given the fish's
morphological (i.e., physical appearance such as color pattern, shape,
and scale patterns) and genetic evidence. The other four reviewers
responding to the proposed rule supported the validity of the Alabama
sturgeon as a species.
* Desert yellowhead. One of two reviewers who provided comments on the
proposed rule to list the desert yellowhead (a flowering plant that
occurs in Wyoming) agreed that the species was rare and in need of
protection, but did not agree that listing the species under the act
was the appropriate mechanism. The other reviewer supported listing the
plant.
Courts Have Overturned Few Listing Decisions on the Basis of Inadequate
Science:
The Service's actions and inactions under the act are frequently
challenged in the courts. In hearing such challenges, courts must defer
to agencies in judging actions, such as listing decisions, and must not
substitute their judgment for an agency's, especially on technical
matters.[Footnote 23] As a result, courts will uphold an agency
decision when it is evident that the agency considered the relevant
facts and articulated a rational connection between those facts and its
decision.[Footnote 24] Partly because of the deference granted to the
Service in making listing determinations, most litigation has not
directly challenged the Service's use of science. Instead, according to
an official from the Department of the Interior's Office of the
Solicitor, most litigation revolves around definitional or procedural
issues, such as the Service's failure to meet statutory time frames.
The official said that litigants often challenge decisions on
nonscientific aspects of the act because they feel this provides them
with a stronger case. Thus, the fact that the courts have rarely ruled
against the Service on the basis of inadequate science is not
necessarily an affirmation that the Service used the best available
science.
Based on a review of federal court cases decided during fiscal years
1999 through 2002, we identified 17 cases in which a court issued an
opinion related to the Service's listing decisions. The Service lost 11
of these cases, mostly because it failed to take certain actions
regarding decisions to list or not to list a species within the time
allotted by the act. However, the courts overturned listing decisions
on the basis of issues related to the use of scientific data in the
following two cases:
* Sacramento splittail. In 2000, a federal court ruled that the
decision to list the Sacramento splittail was not supported by the best
scientific data available.[Footnote 25] The splittail is a large fish
with a distinctive tail and is native to California's Central Valley.
Regional water authorities challenged the listing of the splittail on
scientific grounds, asserting, among other things, that the Service
ignored an important study indicating resiliency and an increasing
abundance of the splittail. The court rejected the Service's arguments
that these data were not submitted in time to be considered and were
irrelevant, and found there to be no indication that the Service
considered substantial evidence that suggested that the splittail
should not be listed. The court thus concluded that the Service had
failed to consider all available data. The Service is in the process of
reevaluating this listing rule.
* Westslope cutthroat trout. In 2002, a federal court ruled that the
Service's decision not to list the Westslope cutthroat trout was not
supported by the best scientific data available.[Footnote 26] The
Westslope trout is one of 14 subspecies of cutthroat trout native to
streams in the western United States. In its decision not to list the
trout, the Service identified hybridization (the breeding with other
species of trout) as one of the threats to the species, but included
these hybrid fish in the population considered for listing. The court
noted that if hybridization were a "threat" to the species, it would
seem logical that hybrid fish should not be included in the population
under consideration. After explaining that the identification of the
existing population of the trout was vital to the ultimate listing
determination, the court found that the record failed to offer a
rationale for including hybrid stocks in the population that it
considered for listing, and concluded that the Service had ignored
existing scientific data for assessing the degree of hybridization that
may be appropriate to include in the population. The court remanded the
case to the Service for reconsideration.
The Service lost the following two cases because it failed to assess
whether the species was imperiled throughout "a significant portion of
its range."[Footnote 27]
* Flat-tailed horned lizard. In 2001, an environmental group
successfully challenged the Service's decision not to list the flat-
tailed horned lizard, a small lizard found in desert lands in the
southwestern United States.[Footnote 28] In reaching its decision, the
Service concluded that regardless of the threats to the lizard on
private lands, large populations of the lizard and areas of its habitat
were already protected under a conservation agreement on public lands
and that the species was sufficiently protected from further threats.
The court found that the Service should have performed an analysis to
determine whether the private lands constituted "a significant portion
of [the lizard's] range" and, if so, whether the lizard was or would
become extinct in that area. The court remanded the case to the Service
for those determinations.
* Queen Charlotte goshawk. In 2002, an environmental group successfully
challenged the Service's decision not to list the Queen Charlotte
goshawk, a forest-dwelling bird of prey found throughout North
America.[Footnote 29] In reaching its decision, the Service considered
the goshawk's presence in southeast Alaska, the Queen Charlotte
Islands, and Vancouver Island in Canada.[Footnote 30] The Service found
that the goshawk was not threatened or endangered in southeast Alaska
or the Queen Charlotte Islands, but the Service did not make a
determination regarding the goshawk's status on Vancouver Island. The
Service contended that the goshawk's status on Vancouver Island did not
matter because that area did not represent a significant portion of the
goshawk's range. The decision in this case upheld the Service's
determination regarding southeast Alaska and the Queen Charlotte
Islands, finding that the Service had properly used the best available
science. However, the decision went on to conclude that Vancouver
Island represented a significant portion of the goshawk's range and
that the case should be remanded to the Service to determine whether
the goshawk was threatened or endangered on Vancouver Island.
The Service Has Delisted Few Species on the Basis of New Scientific
Information Showing That Listing Was Not Warranted:
In addition to removing recovered or extinct species from the list of
threatened or endangered species, the Service can also delist a species
if new information becomes available to show that protection under the
act is not warranted. Typically, listing a species generates widespread
attention to the species, additional funding for its study, and further
research relating to the species or its habitat. As additional
information is gathered, the Service or interested parties can initiate
a delisting action if they believe the species no longer qualifies for
listing. The Service follows similar rulemaking procedures to delist a
species as for listing.
Since the inception of the Endangered Species Act, the Service has
delisted few species. As of March 2003, the Service had delisted 25
threatened and endangered domestic species of the more than 1,200
listed.[Footnote 31] Of the 25 delistings, 10 resulted from new
information--4 because new information showed the species to be more
widespread or abundant than believed at the time the species was
listed, and 6 for taxonomic revisions, meaning that the species was
found not to be unique, but was a hybrid or simply a population of
another common species making it ineligible for listing (see table 1).
The remaining 15 delistings resulted from recovery efforts (7),
extinction (7), or an amendment to the act that made the species no
longer qualify for listing protection (1).[Footnote 32]
Table 1: Species Delisted on the Basis of New Information:
Species name: Dismal Swamp southeastern shrew; Description: A small,
long-tailed shrew found in the southeastern U.S; Date listed: Sept.
26, 1986; Date delisted: Feb. 28, 2000; Reason delisted: Species more
abundant or widespread: Analyses completed after the species was listed
showed that the species is actually widely distributed and uses a wide
variety of habitat types.
Species name: McKittrick pennyroyal; Description: A small herb native
to the Guadalupe Mountains in southeastern New Mexico and northwestern
Texas; Date listed: July 13, 1982; Date delisted: Sept. 22, 1993;
Reason delisted: Species more abundant or widespread: Since the time of
listing, additional surveys have shown the plant to be more widespread
and abundant than previously known. Further, management actions were
taken by various federal agencies to provide protections to the plant.
Species name: Tumamoc globeberry; Description: A vine occurring in
south-central Arizona and extending southward into Mexico; Date listed:
Apr. 29, 1986; Date delisted: June 18, 1993; Reason delisted: Species
more abundant or widespread: Surveys and studies completed after the
time of the listing showed that the range of the species is much larger
than originally known and the plant was more common and requires less
habitat-specific areas than was believed at the time of listing.
Species name: Pine barrens treefrog, Florida population; Description: A
frog known to occur in Florida, Alabama, New Jersey, and the Carolinas;
Date listed: Nov. 11, 1977; Date delisted: Nov. 22, 1983; Reason
delisted: Species more abundant or widespread: Subsequent studies
completed after the time of listing revealed a number of new
populations and a more extensive distribution of the species throughout
Florida and Alabama.
Species name: Umpqua River cutthroat trout; Description: A fish found
in the Umpqua River basin in coastal Oregon; Date listed: Sept. 13,
1996; Date delisted: Apr. 26, 2000; Reason delisted: Species more
abundant or widespread: An expanded review subsequent to listing showed
that this population is part of another larger population of trout that
did not warrant listing.
Species name: Lloyd's hedgehog cactus; Description: A cactus primarily
occurring in Texas and New Mexico; Date listed: Oct. 26, 1979; Date
delisted: June 24, 1999; Reason delisted: Species more abundant or
widespread: Subsequent studies completed after the time of listing
showed evidence indicating that the cactus is not a distinct species
but rather is a hybrid.
Species name: Cuneate bidens; Description: A flowering Hawaiian plant;
Date listed: Feb. 17, 1984; Date delisted: Feb. 6, 1996; Reason
delisted: Species more abundant or widespread: Subsequent studies after
the time of listing culminated in a taxonomic revision of the genus.
The plant was determined to be no more than an outlying population of
another common species, which is not significantly threatened.
Species name: Spineless hedgehog cactus; Description: A cactus known to
occur in southeastern Utah and southwestern Colorado; Date listed: Nov.
7, 1979; Date delisted: Sept. 22, 1993; Reason delisted: Species more
abundant or widespread: Subsequent to listing, several evaluations did
not recognize the cactus as a distinct species and the consensus of
botanists was that the cactus was only a form of another type of cactus
which was much more widespread, occurring from Utah and Colorado south
into central Mexico.
Species name: Purple-spined hedgehog cactus; Description: A cactus
occurring in southwestern Utah; Date listed: Oct. 11, 1979; Date
delisted: Nov. 27, 1989; Reason delisted: Species more abundant or
widespread: Several reviews after listing discovered that the
characteristics of the purple-spined hedgehog cactus were simply
morphological variations within the population of a more common species
found throughout the Mojave Desert in southwestern Utah.
Species name: Mexican duck; Description: A duck found throughout the
southwestern U.S. and Mexico; Date listed: Mar. 11, 1967; Date
delisted: July 25, 1978; Reason delisted: Species more abundant or
widespread: After the listing of the Mexican duck, the duck was
determined to be a subspecies of the common mallard duck with a large
zone of interbreeding between the two. Additional information also
indicated that the loss of habitat throughout its range was no longer a
threat that would qualify the species for listing.
Source: GAO analysis of U.S. Fish and Wildlife Service data.
[End of table]
Concerns Remain Over the Adequacy of Scientific Information Used in
Making Critical Habitat Decisions:
While external reviews indicate that the Service bases most critical
habitat decisions on the best available science, concerns remain over
the adequacy of the information available to support the decisions.
Experts and others we spoke to explained that the amount of scientific
information available on a species' habitat needs often may be limited,
affecting the Service's ability to adequately define the habitat area
required. Experts that peer reviewed proposed critical habitat
designations generally supported the Service's decisions, though many
provided additional clarifications or suggestions. While the courts
have overturned few critical habitat decisions on the basis of
inadequate science, scientific disagreements over these decisions
continue.
Experts and Others Express Concerns About Critical Habitat Decisions:
Experts and others knowledgeable about the Endangered Species Act have
expressed concerns about the Service's ability to designate critical
habitat for some listed species given the amount of information
available on the species' habitat needs. Unlike listing decisions,
which are more straightforward--requiring the Service to answer only a
"yes or no" question as to whether a species warrants listing--critical
habitat decisions often require more detailed knowledge about a
species' life history and habitat needs and call for the Service to
factor in the species' special management needs in addition to the
economic impacts of the designation. Service officials, experts, and
others we spoke to agreed that the amount of scientific information
available is limited and often affects the Service's ability to
adequately define the habitat essential to the species' conservation.
While some interested parties stated that the Service designated areas
too broadly and included lands unsuitable for several species, others
said that the Service did not designate enough habitat for some listed
species. According to Service officials, the resource and time
constraints under which the Service's scientists work often preclude
them from collecting new information and, as a result, the information
available may limit their ability to produce adequate critical habitat
designations for some species. We found that most scientific
disagreements surrounding recent critical habitat designations
concerned whether the area chosen as critical habitat is sufficiently
defined or whether the overall information used to support the
designation is adequate. (See app. IV for information on the nature of
scientific controversy surrounding the Service's decisions to designate
critical habitat for listed species.) In order to increase the amount
of information available on which to base critical habitat
designations, the Service and others, including the National Research
Council, have recommended delaying designations until recovery plans
are developed.[Footnote 33]
Peer Reviewers Generally Support the Service's Critical Habitat
Designations, but Raise Concerns about the Areas Selected:
The Service received 69 peer-review responses for 27 of the 37 critical
habitat decisions finalized during fiscal years 1999 through 2002; it
received no responses for 10 decisions (see app. III). Reviewers
providing comments in 17 of these decisions unanimously agreed with the
Service's scientific conclusions or otherwise indicated support for the
critical habitat designation. In six decisions, while not stating
explicit agreement with the Service's use of science, the reviewer did
not identify any major inadequacies or reasons for substantially
modifying the proposed habitat. In another decision, the Service
reported that five peer reviewers supported the decision and one was
"neutral." One or more peer reviewers disagreed with the Service's
proposed critical habitat designations for the remaining three
decisions:
* Zapata bladderpod. The one reviewer responding to the proposed
critical habitat designation of the Zapata bladderpod, a flowering
plant that grows in Texas, stated that the areas selected on state and
private lands were too small to support viable populations or the area
was not always suitable habitat for the species. The reviewer also said
it was premature to select those sites given the lack of information
about the species.
* Cactus ferruginous pygmy-owl. The one reviewer responding to the
proposed critical habitat designation for the cactus ferruginous pygmy-
owl, a small bird found in the southwestern United States, disagreed
with the designation on the grounds that there were too many unknowns
about the species' habitat requirements to support a determination
about its critical habitat.
* Newcomb's snail. Two of the six reviewers responding to the Service's
proposed critical habitat determination for the Newcomb's snail (found
only on the island of Kauai, Hawaii) disagreed with the proposed rule-
-the other four supported it. One of the reviewers who disagreed stated
that there was inadequate information to make a determination because
habitat requirements for the snail were limited to generalized
observations in the field and thus were speculative. The reviewer said
the designation did not identify the habitat features essential to the
conservation of the species and was premature until additional
biological information was obtained. Similarly, the other reviewer
objecting to the determination did so largely because of his
understanding that the process was based on few published scientific
studies, and much was still unknown about the species' habitat
requirements.
Even though peer reviewers may have concurred with the Service's
critical habitat designation, many provided clarifications or suggested
modifications. We analyzed the peer reviewers' responses for 16 of the
27 critical habitat decisions the Service made. There were 35 peer-
review responses to these 16 decisions. Nearly all of the reviewers
provided specific clarifications on information contained in the rule
or suggestions for altering the habitat area selected. For instance, in
many of the responses, the reviewer agreed with the proposal in
general, but stated that additional lands should be included in the
critical habitat designation and cited scientific reasons for
increasing habitat areas. In one decision, a reviewer generally
supporting the proposed critical habitat of the arroyo toad (an
endangered toad found in coastal and desert drainages in California)
identified specific areas where he believed the toad ranged more widely
and would therefore warrant additional critical habitat. Another
reviewer, generally supporting the proposed critical habitat for the
Great Lakes population of the piping plover (a small shorebird that
occurs across North America), identified sites she believed should be
added to the designation and areas she believed to be unsuitable for
the species and therefore should be excluded from the designation.
Courts Have Overturned Few Critical Habitat Decisions on the Basis of
Inadequate Science:
As with listing decisions, and due in part to the deference the courts
grant to the Service, most litigation has not directly challenged the
Service's use of science in making critical habitat determinations.
Based on a review of federal court cases decided during fiscal years
1999 through 2002, we identified 11 cases in which a court issued an
opinion regarding the Service's critical habitat decisions. Most of
these 11 cases dealt with nonscience issues, such as the Service's
failure to designate critical habitat for a listed species. However,
the courts overturned critical habitat decisions on the basis of issues
related to the use of scientific data in the following two
cases:[Footnote 34]
* Rio Grande silvery minnow. In 2000, a federal court invalidated the
critical habitat of the Rio Grande silvery minnow based in part on
scientific grounds.[Footnote 35] Multiple groups, including the state
of New Mexico, challenged the designation of critical habitat for the
silvery minnow, a fish found exclusively in the Rio Grande River in the
Southwest. The critical habitat designation for this fish consisted of
a 163-mile stretch of the main stem of the Rio Grande River. The court
ruled in favor of the plaintiffs because it found that the Service's
final rule had failed to (1) define with sufficient specificity what
biological and physical features were essential to the species'
survival and recovery and (2) indicate where in each reach of the river
such features existed. For example, the court said that the Service's
statement in the rule regarding the minnow's need for "sufficient
flowing water" provided vague generalities that stated little more than
what is required for any fish species. As a result of this court
ruling, the Service is in the process of redesignating critical habitat
for this species.
* Cactus ferruginous pygmy-owl. In 2001, a court struck down the
critical habitat designation for the cactus ferruginous pygmy-owl
because, among other reasons, the designation was not supported by the
best available scientific data.[Footnote 36] The final critical habitat
for the pygmy-owl, a small bird found in the southwestern United
States, consisted of over 700,000 acres of riparian and upland habitat
in Arizona. The court noted that the determination of critical habitat
is to be made on the basis of the "best scientific data available" and
that this involves identifying geographic areas "essential to the
conservation of the species." The court then pointed out that
systematic owl surveys had not yet been completed over the entire
potential habitat in Arizona, and that the Service determined critical
habitat by designating areas where the pygmy-owls had been sighted,
areas that it thought would be consistent with the species' known
habitat, and all the land in between. The court also pointed out that,
in addition to the areas actually occupied by the pygmy-owls, the
Service had included areas where it thought they could live. The court
appeared to conclude that, in order to include areas that were not
presently occupied, the Service should have determined that such areas
were in fact essential to the conservation of the species. Although the
Service had already agreed to reconsider the economic analysis used in
the critical habitat designation, the court concluded that a "broader
reconsideration" of the critical habitat designation was necessary. The
Service is in the process of redesignating critical habitat for the
pygmy-owl.
The Service Has Failed to Address Known Problems with the Critical
Habitat Program:
The Service's critical habitat program currently faces a serious crisis
that extends well beyond the use of science in making decisions.
Litigation now dominates the program, leading the Assistant Secretary
for Fish and Wildlife and Parks in the Department of the Interior to
recently declare that the system for designating critical habitat is
"broken" because it provides little conservation benefit while
consuming significant resources.
A key court case in 1997 invalidated the Service's position on when
critical habitat should be designated. The Endangered Species Act
generally requires the Service to designate critical habitat for listed
species unless the Service determines it is "not prudent,"[Footnote 37]
and the Service's regulations spell out that it is not prudent to
designate critical habitat if doing so would not be "beneficial to the
species."[Footnote 38] As a result, prior to 1997, the Service had
designated critical habitat for only 113 of the 1,023 domestic species
that it had listed. The Service reasoned that designating critical
habitat did not benefit the species because the benefits that critical
habitat provided duplicated those benefits provided by listing the
species.[Footnote 39] The 1997 court case invalidated the Service's
reasoning, ruling that the Service's determination that it was not
prudent to designate critical habitat for the coastal California
gnatcatcher, a songbird unique to coastal southern California, was not
justified.[Footnote 40] One of the reasons that the Service concluded
that it was not prudent to designate critical habitat was because it
believed that such a designation would not appreciably benefit the
species because most populations of gnatcatchers were found on private
lands to which the act's critical habitat protections would not apply.
The court found that this reasoning improperly expanded what Congress
had intended to be a narrow exception to designating critical habitat.
The court concluded that the Service had disregarded "the clear
congressional intent that the imprudence exception be a rare
exception." Since then, court orders and settlement agreements have
compelled the Service to designate critical habitat for species for
which it had previously determined that it was not prudent to do so.
Subsequently, a 2001 court case led the Service to reconsider some of
its critical habitat designations.[Footnote 41] The case involved the
requirement of the act that the Service consider the economic impact of
designating a particular area as critical habitat. According to the
act, the Service may exclude areas from critical habitat if it
determines that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat unless excluding it
would result in the extinction of the species. For example, in 1997,
the Service designated critical habitat for the southwestern willow
flycatcher, a small bird that nests in riparian areas in the
southwestern United States. Because the Service believed that
designating critical habitat would not result in additional
restrictions on activities beyond those resulting from listing the
species, it reasoned that there would be no significant economic impact
associated with designating critical habitat for the
flycatcher.[Footnote 42] However, the court disagreed. It found that
since the act clearly barred the Service from considering economic
impacts in listing decisions, but required they be considered in
critical habitat decisions, the Service was not free to ignore the
economic impacts of listing a species when designating critical habitat
for that species. The court held that the Service had to consider all
of the economic impacts of a critical habitat determination, regardless
of whether those impacts were also attributable to listing or other
causes. Since this decision was issued, court orders and settlement
agreements have prompted the Service to re-issue some critical habitat
decisions to comply with this standard.
Since these two court rulings, the Service's critical habitat program
has become dominated by litigation. Each critical habitat designation
made since 1997 has resulted from a court order or a settlement
agreement, and the Service expects that it will have to dedicate
significant resources through fiscal year 2008 to comply with existing
court orders and settlement agreements. The department believes that
this flood of litigation over critical habitat designation is
preventing the Service from taking what it deems to be higher priority
activities, such as addressing the approximately 250 "candidate"
species waiting to go through the listing process (listing and critical
habitat activities are funded under the same line item in the
department's budget). Service officials noted that there are other
court decisions that may cause additional problems for the program in
the future.
The Service has been aware of problems with its critical habitat
program for a number of years. The Service noted significant problems
with its critical habitat program in 1997,[Footnote 43] and in 1999 it
issued a Federal Register notice announcing that its system for
designating critical habitat was not working and soliciting comments on
its intention to develop policy or guidance and/or to revise
regulations or seek legislative corrections to clarify the role of
critical habitat in conserving endangered species.[Footnote 44] In
particular, the Service stated its intention to consider when critical
habitat designation would provide additional protection beyond that
provided by listing. The Service also announced its intention to
streamline the process for designating critical habitat to be more
cost-effective and in line with the amount of conservation benefit
provided to the species. In particular, the Service declared that it
needs to develop a much less labor-intensive process for describing the
areas proposed for designation as critical habitat. The Service also
stated that it can streamline and make more cost-effective the process
to conduct the economic analyses required to designate critical habitat
and that it can more efficiently conduct the analyses required under
the National Environmental Policy Act. The Service also noted that
critical habitat litigation and related court orders were consuming
much of the resources devoted to listing and critical habitat, and
delaying other activities that it considered higher priority, such as
addressing petitions submitted by citizens, working with landowners on
conservation projects, and completing final actions to list species.
However, no additional guidance or revisions were issued, and the
Service continues to follow the same unworkable system.
The Department of the Interior recently echoed concerns with the
Service's critical habitat program and the limited conservation benefit
it provides to species. In April 2003, the Assistant Secretary for Fish
and Wildlife and Parks testified before Congress on the critical
habitat program, stating that it is "broken" and in "chaos." He noted
that litigation support is consuming valuable resources and that
complying with court orders and settlement agreements has sharply
reduced the Service's ability to prioritize its listing and critical
habitat actions. Service scientists working in field offices expressed
similar concerns to us about the critical habitat program, raising
questions about the purpose of critical habitat and the designation
process. An attorney in the Solicitor's office told us that guidance
would improve the Service's critical habitat decisions and make the
decisions more defensible in court in the future.
Despite the long-standing concerns over the role and implementation of
the critical habitat program, the Service has done little to resolve
them. In a report issued in June 2002, we recognized the impact that
litigation was having on the critical habitat program and recommended
that the Service expedite its efforts to develop guidance on
designating critical habitat for listed species to help reduce the
influence of future litigation.[Footnote 45] Better guidance would help
reduce the number of legal challenges to the Service's critical habitat
designations and allow the Service to better withstand legal challenges
when they arise. While the Service agreed with our recommendation, it
responded that work on critical habitat guidance had been delayed
pending Service efforts to complete higher priority tasks, including
court orders to complete listing and critical habitat decisions and did
not commit to a schedule for issuing the guidance. An official with
Interior's Solicitor's office told us that one factor limiting the
agency's ability to complete these tasks is the Service's inability to
devote significant listing and critical habitat resources to policy
initiatives without risking contempt of court because such action would
force the agency to divert resources away from activities required to
comply with court orders.
Conclusion:
The Service's critical habitat program faces a serious crisis because
of extensive litigation that is consuming significant program
resources. The Service has recognized this crisis for many years but
has done little to address it. Accordingly, in June 2002, we
recommended that the Service expedite its efforts to develop guidance
on designating critical habitat to reduce the influence of future
litigation. While the Service agreed with our recommendation, it has
done little to develop this guidance. Service officials complain that
they are locked in a vicious cycle, precluded from developing the
guidance for fear of being held in contempt of court for diverting
resources away from activities already required by existing court
orders. While the Service clearly faces a dilemma, it is imperative
that it clarify the role of critical habitat and develop guidance for
how and when it should be designated, and seek regulatory and/or
legislative changes that may be necessary to provide threatened and
endangered species with the greatest conservation benefit in the most
cost-effective manner.
Recommendation for Executive Action:
Because the Service's critical habitat program faces serious
challenges, we recommend that the Secretary of the Interior require the
Service to provide clear strategic direction for the critical habitat
program, within a specified time frame, by clarifying the role of
critical habitat and how and when it should be designated, and
recommending policy/guidance, regulatory, and/or legislative changes
necessary to provide the greatest conservation benefit to threatened
and endangered species in the most cost-effective manner.
Agency Comments:
We provided the Department of the Interior with a draft of this report.
The department did not provide comments on the draft.
:
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the Secretary of the Interior and other interested parties. We also
will make copies available to others upon request. In addition, the
report will be available at no charge on the GAO Web site at http://
www.gao.gov.
If you or your staffs have any questions, please call me at (202) 512-
3841. Key contributors to this report are listed in appendix V.
Signed by:
Barry T. Hill
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
This report assesses the U.S. Fish and Wildlife Service's consideration
and use of science in its decisions to list species as threatened or
endangered and to designate critical habitat.[Footnote 46]
Specifically, we were asked to review the extent to which (1) the
Service's policies and practices ensure that listing and critical
habitat decisions are based on the best available science and (2)
outside reviewers have supported the scientific data and conclusions
that the Service uses to make listing and critical habitat decisions.
In no instance did we attempt to evaluate scientific data and render an
opinion. For this evaluation, we define "science" as the collection and
interpretation of biological information, such as the identification of
a species and its habitat needs. This definition does not include the
legal policies and definitions found in the law or used to implement or
interpret the Endangered Species Act. However, we acknowledge that
there is not always a clear distinction between the interpretation of
biological information and the policies and definitions used to
interpret the act.
In meeting our first objective, we examined the Service's decision-
making process to determine the extent to which it would likely lead to
decisions based on the best available science. We reviewed the
Service's policies and procedures related to how it makes these
decisions and discussed the process and procedures with key officials
at the Service's headquarters and with staff in the Service's regional
and field offices to determine their knowledge of the process and how
they implemented it. We also spoke with peer-review experts and
examined the literature on the processes that organizations use to peer
review their decisions and products to assess the reasonableness of the
Service's policy to peer review proposed listing and critical habitat
decisions.
In meeting both objectives, we obtained from the Service a list of the
decisions to list species and designate critical habitat that the
Service finalized during fiscal years 1999 through 2002. To verify the
completeness of the provided list of decisions, we compared it with a
second independent database maintained by the Service. We identified
one decision that was not on the original list provided to us by the
Service. We included that decision in our analysis. Based on this
information, we identified 101 final decisions to list or designate
critical habitat that were published in the Federal Register during
fiscal years 1999 through 2002.
We examined the Federal Register notices for the 101 decisions to
determine (1) the extent to which the Service complied with its peer-
review policy to request at least three peer reviewers to review each
decision, (2) the number that reviewed each decision, and (3) whether
or not the reviewer(s) supported the decision. In 61 of the 101
decisions, we extracted this information from the Federal Register. For
the remaining 40 decisions, we contacted the 18 field offices
responsible for the decisions and requested that they provide the peer-
review documentation, including copies of the peer reviewers'
responses. The Service provided us with the missing information in all
but seven instances; in five of those instances partial information was
available.
To assess the accuracy of the information reported in the Federal
Register notices, we requested that the Service provide documentation
for the peer-review information, including peer reviewers' responses,
for 8 of the 61 decisions for which complete information was available
in the Federal Register notice. We selected these 8 decisions in the
following way. In order to minimize the burden on the Service's field
staff, we limited our universe to the decisions that were the
responsibility of the18 field offices that we already intended to
contact. These offices were responsible for 48 of the 61 decisions for
which there was complete information in the Federal Register notice. We
then randomly chose 1 decision from each of the three offices with the
most decisions. Collectively these offices were responsible for 25 of
the 48 decisions. We also randomly chose 5 of the remaining 23
decisions. We compared the documentation provided to us with the
information in the corresponding Federal Register notices. We found no
discrepancies. However, we did find minor discrepancies between other
Federal Register notices and the documentation the Service provided to
us. We reconciled these discrepancies. Additionally, based on a limited
review, we found the Service's procedures reasonable for ensuring that
its database contains accurate information. For example, the Service
regularly samples data recently added to the database for accuracy. We
did not determine the extent to which any of the Service's final
decisions reflected the comments and opinions of the peer reviewers.
In addition to determining whether peer reviewers supported the
decision they reviewed, we performed a content analysis on the peer-
review responses for 16 critical habitat decisions to more fully
characterize the opinions of the peer reviewers. We chose to perform a
content analysis on the responses to critical habitat decisions because
these decisions are open-ended, requiring the Service to determine how
much critical habitat to designate and where that habitat should be
located. There were 35 peer-review responses for these 16 decisions.
To determine how well the Service's listing and critical habitat
decisions are withstanding legal challenges to the science supporting
those decisions, we used common legal research methods to identify
federal court cases related to the Service's listing and critical
habitat decisions. We identified and reviewed 25 cases that were
decided during fiscal years 1999 through 2002 that involved a challenge
to a Service listing decision and/or critical habitat decision, and in
which the court rendered a decision on the listing or critical habitat
issue.
To determine the extent to which the Service has delisted species
because new scientific information surfaced indicating that listing was
not originally warranted, we used information from the Service's
publicly accessible database. We included in our analysis all decisions
to delist species from the inception of the act through March 2003. We
compared this information with information published in the Federal
Register. We found no discrepancies.
Finally, to get a fuller understanding of the degree of scientific
controversy regarding listing and critical habitat decisions, we
solicited the opinions of experts and others and reviewed published
studies. To illustrate the nature of scientific controversy regarding
listing and critical habitat decisions, we developed a list of
decisions for which there was some degree of scientific controversy. We
developed this list by asking experts in the private, academic,
government, and nonprofit sectors spanning the political spectrum to
identify recent decisions that were particularly controversial due to
scientific disagreements and briefly explain the nature of the
controversy. We limited our analysis to decisions finalized during
fiscal years 1993 through 2002. In addition, we asked each expert for
the names of other experts who could help us develop our list. We
stopped contacting experts when we began to get repetitive responses.
We then identified common issues related to the controversies to
characterize the types of disagreements involved with each of the
decisions. We based this on the information provided by the experts and
information published in the Federal Register. Finally, we presented
the list of decisions and related information to officials at the
Service and at the National Academy of Sciences for their opinions on
the list of decisions and how we characterized them. The officials
generally agreed with the information we presented.
Additionally, in the course of our work, it became apparent that
litigation was dominating the Service's critical habitat program, and
we discuss these circumstances in our report. Specifically, we describe
how several key court cases are affecting the program.
We performed our work from September 2002 through June 2003 in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Overview of The Endangered Species Act:
The Endangered Species Act was passed by Congress to provide a means to
conserve the ecosystems upon which endangered and threatened species
depend and to conserve and recover imperiled species. The act was
passed in 1973 and replaced earlier laws, which provided for a list of
endangered species but gave them little meaningful protection. While
significant amendments were enacted in 1978, 1982, and 1988, the
overall framework of the act has remained essentially unchanged. The
Department of the Interior delegated its responsibility for the act to
the U.S. Fish and Wildlife Service (Service), which established an
endangered species program to implement the requirements of the act.
The Service is responsible for all land-dwelling species, freshwater
species, some marine mammals, and migratory birds. The Department of
Commerce, which has delegated its responsibility to the National Marine
Fisheries Service, is responsible for implementing the act for marine
species including anadromous (both freshwater and ocean dwelling) fish.
The act provides numerous provisions to protect and recover species at
risk of extinction. However, before a plant or animal species is
eligible to benefit from most of these provisions, it must first be
added to the Federal List of Endangered and Threatened Wildlife and
Plants. Once on the list, key provisions of the act, including critical
habitat, recovery plans, consultations with federal agencies, and
habitat conservation plans, are designed to assist in recovering the
species so that it can then be removed from the list.
Listing Species as Endangered or Threatened:
Under the act, species may be listed as either endangered or
threatened. An endangered species is any species of animal or plant
that is in danger of extinction throughout all or a significant portion
of its range. A threatened species is any species of animal or plant
that is likely to become endangered within the foreseeable future
throughout all or a significant portion of its range. All species of
plants and animals (except pest insects) are eligible for listing as
endangered or threatened. As of June 2003, there were a total of 1,821
listed species; 1,504 species on the endangered species list, 987 of
which occur in the United States; and 317 threatened species, 276 of
which occur in the United States.[Footnote 47]
The decision to list a species must be based solely on the best
available scientific and commercial data. Using these data, the Service
must determine whether a species should be listed by analyzing its
status based on the following factors: (1) current or threatened
destruction, modification, or curtailment of a species habitat or
range; (2) over utilization of the species for commercial,
recreational, scientific, or educational purposes; (3) disease or
predation; (4) inadequacy of existing regulatory mechanisms; and (5)
other natural or manmade factors affecting the species' continued
existence. The Service follows a rigorous process to determine whether
to list a species. A final decision to list a species is published in
the Federal Register.
The Service may issue emergency regulations to list a species without
complying with the normal regulatory process if it finds that an
emergency poses a significant risk to the well-being of any species.
Emergency regulations take effect immediately upon publication in the
Federal Register and are effective for 240 days.
The Service also maintains a list of candidate species. Candidate
species are species for which substantial information is available to
support a listing proposal, but have not yet been proposed for listing.
The Service maintains this list for a variety of reasons, including (1)
to provide advance knowledge of potential listings that could affect
decisions of environmental planners and developers, (2) to solicit
input from interested parties to identify those candidate species that
may not require protection under the act or additional species that may
require the act's protections, and (3) to solicit information needed to
prioritize the order in which species will be proposed for listing. The
Service is required to publish a notice of review annually in the
Federal Register to solicit new information on the status of candidate
species. The Service works with parties, such as states and private
partners, to carry out conservation actions--often called Candidate
Conservation Agreements--for candidate species to prevent their further
decline and possibly eliminate the need to list them as endangered or
threatened. As of June 2003, there were 251 candidate species, many of
which have held that status for more than a decade.
Critical Habitat:
The Service is generally required to designate critical habitat at the
time a species is listed as endangered or threatened. Critical habitat
is the specific geographic area essential for the conservation of a
threatened or endangered species and that may require special
management considerations and protection. Critical habitat contains
physical and biological habitat features such as: (1) space for
individual and population growth and for normal behavior; (2) cover or
shelter, food, water, air, light, minerals, or other nutritional or
physiological requirements; (3) sites for breeding and rearing
offspring; and (4) habitats that are protected from disturbances or are
representative of the historic geographical and ecological
distributions of a species. Critical habitat may also include areas not
occupied by the species at the time of listing but that are essential
to the conservation and recovery of the species. Unlike the decision to
list a species as endangered or threatened, a final designation of
critical habitat is to be made on the basis of not only the best
scientific data available but also taking into consideration the
economic and other effects of making the decision. If the benefits of
excluding an area outweigh the benefits of including it, the Service
may exclude an area from critical habitat, unless the exclusion would
result in the extinction of the species.
The Service may take up to an additional year after listing a species
to designate critical habitat if it finds that critical habitat is "not
determinable." Critical habitat is not determinable when information
sufficient to perform the required analyses of the impacts of the
designation of critical habitat is lacking or the biological needs of
the species are not sufficiently known to permit identification of an
area as critical habitat. The Service does not designate critical
habitat if it determines that doing so would be "not prudent." It would
not be prudent to designate critical habitat if (1) identifying the
habitat is expected to increase the threat to the species or (2)
designating an area as critical habitat is not expected to benefit the
species.
Recovery Plans:
Once a species is listed, the act requires the Service to develop a
recovery plan for the species. Recovery plans identify, justify, and
schedule the research and management actions necessary to reverse the
decline of a species and ensure its long-term survival. Recovery plans
must be developed for all listed species, unless such a plan would not
benefit the species. Although the act does not specify time frames for
developing or implementing the recovery plan or for recovering the
species, the Service has as a goal of developing recovery plans within
1 year and having approved plans within 2½ years of a species' listing.
The Service solicits comments from state and federal agencies, experts
and the public on draft recovery plans during a formal public comment
period announced in the Federal Register. The Service periodically
reviews approved recovery plans to determine if updates or revisions
are needed. As of June 2003, 1000 species had approved recovery plans.
Consultations with Federal Agencies:
Federal agencies are required to consult with the Service if their
actions may affect listed species. The goal of the consultation process
is to identify and resolve conflicts between the protection and
enhancement of listed species and proposed federal actions. The act
requires that all federal agencies consult with the Service to ensure
that any activities agencies permit, fund, or conduct are not likely to
jeopardize the continued existence of a listed species or adversely
modify its critical habitat. Federal agencies may informally consult
with the Service to determine whether their actions may affect listed
species and must proceed to formal consultations once they determine
that their actions may adversely affect a listed species or its
habitat. The act requires a formal consultation to be completed in 90
days, unless the Service and the federal agency mutually agree to an
extension, with the applicant's consent. The Service is to issue a
"biological opinion" within 45 days of the conclusion of formal
consultation that reviews the potential effects of the proposed action
on listed species and/or critical habitat. The Service must base the
biological opinion on the best available biological information. If the
Service finds that the action would appreciably reduce the likelihood
of the species' survival and recovery, it issues a jeopardy biological
opinion. Jeopardy opinions include reasonable and prudent alternatives
that define modifications to the agency's proposed action that enable
it to continue and still be consistent with the act's requirements for
protecting species. Following the issuance of the biological opinion,
the federal agency determines whether it will comply with the opinion
or seek an exemption from the act's requirements.
Proposed federal agency actions that have been determined to cause
jeopardy to any listed species may receive an exemption from the act by
the Federal Endangered Species Committee (also referred to as the "God
Squad"). The Endangered Species Committee is comprised of seven
members: the Secretary of Agriculture, the Secretary of the Army,
Chairman of the Council of Economic Advisors, the Administrator of the
Environmental Protection Agency, the Secretary of the Interior, the
Administrator of the National Oceanic and Atmospheric Administration,
and one individual from the affected state. An exemption is granted if
at least five members of the Endangered Species Committee determine
that, among other things, the action is of regional or national
significance, that the benefits of the action clearly outweigh the
benefits of conserving the species, and that there are no reasonable
and prudent alternatives to the action. The Endangered Species
Committee has been convened only three times since its creation in
1978--the Tellico Dam for the snail darter fish in Tennessee, the
Grayrocks Dam in Wyoming for the whooping crane, and Bureau of Land
Management (BLM) timber sales for the spotted owl in Oregon. Only two
exemptions were granted. One was in regard to the Grayrocks dam and the
other was to approve 13 timber sales sought by BLM (which was withdrawn
before the completion of appeals). The Tellico dam application was
denied but was later allowed by Congress to proceed.[Footnote 48] In
addition, three other applications were received but were subsequently
dismissed or withdrawn before deliberations took place.
Habitat Conservation Plans:
The act generally prohibits any person from "taking" an animal species
listed as endangered.[Footnote 49] "Taking" or "take" means to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture or collect a
listed species, and under Service guidelines, includes the destruction
of the species' habitat. However, in 1982, Congress amended the act to
include a process whereby the Service may issue permits that allow
private individuals to incidentally take listed species. Incidental
take is the take of any federally listed species that is incidental to,
but not the purpose of, otherwise lawful activities. Permit applicants
are required to submit a habitat conservation plan, which includes
measures the applicant will take to minimize and mitigate the impacts
that may result from the taking. The Service is required to publish a
notice in the Federal Register soliciting comments from interested
parties on each application for a permit and its accompanying habitat
conservation plan. As of April 2003, 416 habitat conservation plans
have been approved. The act prohibits the Service from issuing a permit
if doing so would appreciably reduce the likelihood of the survival and
recovery of the species in the wild. The incidental taking of a listed
species resulting from federal agency actions may also be allowed under
the act and would be addressed through the consultation process.
[End of section]
Appendix III: Peer Reviewers' Responses to Listing and Critical Habitat
Decisions for Fiscal Years 1999 through 2002:
Federal Register title and number: Listing decisions.
Federal Register title and number: Determination of Endangered
or Threatened Status for Five Desert Milk-vetch Taxa From California
(63 FR 53596); Date: Listing decisions: Oct. 6, 1998; Peer reviewers:
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing
decisions: 2; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 2; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Determination of Endangered or
Threatened Status for Four Southwestern California Plants from Vernal
Wetlands and Clay Soils (63 FR 54975); Date: Listing decisions: Oct.
13, 1998; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers:
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 1; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determinations of Endangered or
Threatened Status for Four Plants (63 FR 54938); Date: Listing
decisions: Oct. 13, 1998; Peer reviewers: Asked: Listing decisions: 3;
Peer reviewers: Responded: Listing decisions: 2; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered or Threatened Status for
Three Plants from the Chaparral and Scrub of Southwestern California
(63 FR 54956); Date: Listing decisions: Oct. 13, 1998; Peer reviewers:
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing
decisions: 0; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: [Empty]; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Endangered Status for Three Aquatic
Snails, and Threatened Status for Three Aquatic Snails in the Mobile
River Basin of Alabama (63 FR 57610); Date: Listing decisions: Oct. 28,
1998; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers:
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 1; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for Virginia Sneezweed (Helenium virginicum) a Plant From the
Shenandoah Valley of Virginia (63 FR 59239); Date: Listing decisions:
Nov. 3, 1998; Peer reviewers: Asked: Listing decisions: 3; Peer
reviewers: Responded: Listing decisions: 2; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: 2; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule to List the
Arkansas River Basin Population of the Arkansas River Shiner
(Notropis girardi) as Threatened (63 FR 64772); Date: Listing
decisions: Nov. 23, 1998; Peer reviewers: Asked: Listing decisions: 20;
Peer reviewers: Responded: Listing decisions: 1; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List the Topeka Shiner
as Endangered (63 FR 69008); Date: Listing decisions: Dec. 15, 1998;
Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded:
Listing decisions: 1; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 1; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the St. Andrew Beach Mouse (63 FR 70053); Date: Listing decisions:
Dec. 18, 1998; Peer reviewers: Asked: Listing decisions: 4; Peer
reviewers: Responded: Listing decisions: 4; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: 4; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for the Sacramento Splittail (64 FR 5963); Date: Listing decisions:
Feb. 8, 1999; Peer reviewers: Asked: Listing decisions: 3; Peer
reviewers: Responded: Listing decisions: 0; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: [Empty]; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for Catesbaea Melanocarpa (64 FR 13116); Date: Listing decisions: Mar
17, 1999; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers:
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List the Flatwoods
Salamander as a Threatened Species (64 FR 15691); Date: Listing
decisions: Apr. 1, 1999; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 3; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Threatened Status for the
Plant Thelypodium howellii ssp. spectabilis (Howell's spectacular
thelypody) (64 FR 28393); Date: Listing decisions: May 26, 1999; Peer
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded:
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 2; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Plant Eriogonum apricum (inclusive of vars. apricum and
prostratum) (Ione Buckwheat) and Threatened Status for the Plant
Arctostaphylos myrtifolia (64 FR 28403); Date: Listing decisions: May
26, 1999; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers:
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 1; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Threatened Status for Lake Erie
Water Snakes (Nerodia sipedon insularum) on the Offshore Islands of
Western Lake Erie (64 FR 47126); Date: Listing decisions: Aug. 30,
1999; Peer reviewers: Asked: Listing decisions: [A]; Peer reviewers:
Responded: Listing decisions: [Empty]; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Endangered Status for 10 Plant
Taxa From Maui Nui, HI (64 FR 48307); Date: Listing decisions: Sep. 3,
1999; Peer reviewers: Asked: Listing decisions: 6; Peer reviewers:
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule to List the Devils River
Minnow as Threatened (64 FR 56596); Date: Listing decisions: Oct. 20,
1999; Peer reviewers: Asked: Listing decisions: 5; Peer reviewers:
Responded: Listing decisions: 4; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 4; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule to List Astragalus
desereticus (Desert milk-vetch) as Threatened (64 FR 56590); Date:
Listing decisions: Oct. 20, 1999; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for the Plant Helianthus paradoxicus (Pecos Sunflower) (64 FR 56582);
Date: Listing decisions: Oct. 20, 1999; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for Bull Trout in the Coterminous United States (64 FR 58910); Date:
Listing decisions: Nov. 1, 1999; Peer reviewers: Asked: Listing
decisions: 6; Peer reviewers: Responded: Listing decisions: 1; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
1; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Plant Lesquerella thamnophila (Zapata Bladderpod)
(64 FR 63745); Date: Listing decisions: Nov. 22, 1999; Peer reviewers:
Asked: Listing decisions: 29; Peer reviewers: Responded: Listing
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 3; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Final Endangered Status for the
Plant Fritillaria gentneri (Gentner's fritillary) (64 FR 69195); Date:
Listing decisions: Dec. 10, 1999; Peer reviewers: Asked: Listing
decisions: [B]; Peer reviewers: Responded: Listing decisions: 4;
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing
decisions: 4; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for Sidalcea oregana var. calva (Wenatchee Mountains Checker-Mallow)
(64 FR 71680); Date: Listing decisions: Dec. 22, 1999; Peer reviewers:
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 3[C]; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Final Rule To List the Sierra Nevada
Distinct Population Segment of the California Bighorn Sheep as
Endangered (65 FR 20); Date: Listing decisions: Jan. 3, 2000; Peer
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded:
Listing decisions: 3; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 3; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List Two Cave Animals
From Kauai, Hawaii, as Endangered (65 FR 2348); Date: Listing
decisions: Jan. 14, 2000; Peer reviewers: Asked: Listing decisions: 3;
Peer reviewers: Responded: Listing decisions: 1; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered Status for Erigeron
decumbens var. decumbens (Willamette Daisy) and Fender's Blue Butterfly
(Icaricia icarioides fenderi) and Threatened Status for Lupinus
sulphureus ssp. Kincaidii (65 FR 3875); Date: Listing decisions: Jan.
25, 2000; Peer reviewers: Asked: Listing decisions: [B]; Peer
reviewers: Responded: Listing decisions: 6; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: 6; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered Status for the Plant
Plagiobothrys hirtus (Rough Popcornflower) (65 FR 3866); Date: Listing
decisions: Jan. 25, 2000; Peer reviewers: Asked: Listing decisions:
[B]; Peer reviewers: Responded: Listing decisions: 2; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for Two Larkspurs From Coastal Northern California (65 FR 4156); Date:
Listing decisions: Jan. 26, 2000; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for Newcomb's Snail From the Hawaiian Islands (65 FR 4162); Date:
Listing decisions: Jan. 26, 2000; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for Blackburn's Sphinx Moth from the Hawaiian Islands (65 FR 4770);
Date: Listing decisions: Feb. 1, 2000; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 0; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
[Empty]; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Plant Yreka Phlox from Siskiyou County, CA (65 FR 5268); Date:
Listing decisions: Feb. 3, 2000; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 1; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
1; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Plant Thlaspi californicum (Kneel and Prairie Penny-Cress) From
Coastal Northern California (65 FR 6332); Date: Listing decisions: Feb.
9, 2000; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers:
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for Sidalcea keckii (Keck's checker-mallow) From Fresno and Tulare
Counties, CA (65 FR 7757); Date: Listing decisions: Feb. 16, 2000; Peer
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded:
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 2; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule to List the Riparian
Brush Rabbit and the Riparian, or San Joaquin Valley, Woodrat as
Endangered (65 FR 8881); Date: Listing decisions: Feb. 23, 2000; Peer
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded:
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 2; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered Status for the Armored
Snail and Slender Campeloma (65 FR 10033); Date: Listing decisions:
Feb. 25, 2000; Peer reviewers: Asked: Listing decisions: 2; Peer
reviewers: Responded: Listing decisions: 0; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: [Empty]; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Threatened Status for Holocarpha
macradenia (Santa Cruz tarplant) (65 FR 14898); Date: Listing
decisions: Mar. 20, 2000; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 4; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: 1; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for Chlorogalum purpureum (Purple Amole), a Plant From the South
Coast Ranges of California (65 FR 14878); Date: Listing decisions: Mar.
20, 2000; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers:
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 2; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule for Endangered Status for
Four Plants From South Central Coastal California (65 FR 14888); Date:
Listing decisions: Mar. 20, 2000; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for the Contiguous U.S. Distinct Population Segment of the Canada Lynx
(65 FR 16052); Date: Listing decisions: Mar. 24, 2000; Peer reviewers:
Asked: Listing decisions: 6; Peer reviewers: Responded: Listing
decisions: 2; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 2; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Determination of Threatened Status
for the Northern Idaho Ground Squirrel (65 FR 17779); Date: Listing
decisions: Apr. 5, 2000; Peer reviewers: Asked: Listing decisions: 1;
Peer reviewers: Responded: Listing decisions: 1; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: [Empty];
Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: 1[B].
Federal Register title and number: Threatened Status for the Santa Ana
Sucker (65 FR 19686); Date: Listing decisions: Apr. 12, 2000; Peer
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded:
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 2; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List as Endangered the
O'ahu 'Elepaio From the Hawaiian Islands and Determination of Whether
Designation of Critical Habitat Is Prudent (65 FR 20760); Date: Listing
decisions: Apr. 18, 2000; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 2; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List the Alabama
Sturgeon as Endangered (65 FR 26438); Date: Listing decisions: May 5,
2000; Peer reviewers: Asked: Listing decisions: 5; Peer reviewers:
Responded: Listing decisions: 5; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 4; Peer reviewers'
response: Disagree: Listing decisions: 1; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List the Short-Tailed
Albatross as Endangered in the United States (65 FR 46643); Date:
Listing decisions: Jul. 31, 2000; Peer reviewers: Asked: Listing
decisions: 5; Peer reviewers: Responded: Listing decisions: 3; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List the Santa Barbara
County Distinct Population of the California Tiger Salamander as
Endangered (65 FR 57242); Date: Listing decisions: Sep. 21, 2000; Peer
reviewers: Asked: Listing decisions: 8; Peer reviewers: Responded:
Listing decisions: 6; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 6; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered and Threatened Wildlife
and Plants: Threatened Status for the Colorado Butterfly Plant
(Gaura neomexicana ssp. coloradensis) From Southeastern Wyoming,
Northcentral Colorado, and Extreme Western Nebraska (65 FR 62302);
Date: Listing decisions: Oct. 18, 2000; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Endangered Status for a
Distinct Population Segment of Anadromous Atlantic Salmon (Salmo salar)
in the Gulf of Maine (65 FR 69459); Date: Listing decisions: Nov. 17,
2000; Peer reviewers: Asked: Listing decisions: 6; Peer reviewers:
Responded: Listing decisions: 3; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 3; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule to List Nine Bexar
County, Texas Invertebrate Species as Endangered (65 FR 81419); Date:
Listing decisions: Dec. 26, 2000; Peer reviewers: Asked: Listing
decisions: 9; Peer reviewers: Responded: Listing decisions: 0; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
[Empty]; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule for Endangered Status for
Astragalus pycnostachyus var. lan osissimus (Ventura marsh milk-vetch)
(66 FR 27901); Date: Listing decisions: May 21, 2001; Peer reviewers:
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing
decisions: 1; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 1; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Determination of Endangered status
for Astragalus holmgreniorum (Holmgren milk-vetch) and Astragalus
ampullarioides (Shivwits milk-vetch) (66 FR 49560); Date: Listing
decisions: Sep. 28, 2001; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 3; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered Status for the Ohlone
Tiger Beetle (Cicindela ohlone) (66 FR 50340); Date: Listing decisions:
Oct. 3, 2001; Peer reviewers: Asked: Listing decisions: 3; Peer
reviewers: Responded: Listing decisions: 3; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: 3; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Scaleshell Mussel (66 FR 51322); Date: Listing decisions: Oct.
9, 2001; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers:
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 2; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List Silene spaldingii
(Spalding's Catchfly) as Threatened (66 FR 51597); Date: Listing
decisions: Oct. 10, 2001; Peer reviewers: Asked: Listing decisions: 3;
Peer reviewers: Responded: Listing decisions: 3; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List the
Vermilion Darter as Endangered (66 FR 59367); Date: Listing decisions:
Nov. 28, 2001; Peer reviewers: Asked: Listing decisions: 3; Peer
reviewers: Responded: Listing decisions: 3; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: 3; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Rule To List the Mississippi
Gopher Frog Distinct Population Segment of Dusky Gopher Frog as
Endangered (66 FR 62993); Date: Listing decisions: Dec. 4, 2001; Peer
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded:
Listing decisions: 3; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 3; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered Status for Carex lutea
(Golden Sedge) (67 FR 3120); Date: Listing decisions: Jan. 23, 2002;
Peer reviewers: Asked: Listing decisions: 5; Peer reviewers: Responded:
Listing decisions: 0; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: [Empty]; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Washington Plant Hackelia venusta (Showy Stickseed) (67 FR
5515); Date: Listing decisions: Feb. 6, 2002; Peer reviewers: Asked:
Listing decisions: 3; Peer reviewers: Responded: Listing decisions: 3;
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing
decisions: 3; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Endangered Status for the Buena
Vista Lake Shrew (Sorex Ornatus Relictus) (67 FR 10101); Date: Listing
decisions: Mar. 6, 2002; Peer reviewers: Asked: Listing decisions: 5;
Peer reviewers: Responded: Listing decisions: 4; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: 1[B].
Federal Register title and number: Listing the Desert Yellowhead as
Threatened (67 FR 11442); Date: Listing decisions: Mar. 14, 2002; Peer
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded:
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 1; Peer reviewers' response:
Disagree: Listing decisions: 1; Peer reviewers' response: Neutral:
Listing decisions: [Empty]; Peer reviewers' response: Unknown/ unclear:
Listing decisions: [Empty].
Federal Register title and number: Listing of the Chiricahua Leopard
Frog (Rana chiricahuensis) (67 FR 40789); Date: Listing decisions: Jun.
13, 2002; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers:
Responded: Listing decisions: 4; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 4; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Southern California Distinct Vertebrate Population Segment of
the Mountain Yellow-legged Frog (Rana muscosa) (67 FR 44382); Date:
Listing decisions: Jul. 2, 2002; Peer reviewers: Asked: Listing
decisions: 6; Peer reviewers: Responded: Listing decisions: 6; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
6; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for Ambrosia pumila (San Diego Ambrosia) from Southern California
(67 FR 44372); Date: Listing decisions: Jul. 2, 2002; Peer reviewers:
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing
decisions: 1; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 1; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Carson Wandering Skipper (67 FR 51116); Date: Listing
decisions: Aug. 7, 2002; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 3; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: 1; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Endangered Status
for the Tumbling Creek Cavesnail (67 FR 52879); Date: Listing
decisions: Aug. 14, 2002; Peer reviewers: Asked: Listing decisions: 5;
Peer reviewers: Responded: Listing decisions: 5; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 5; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Critical habitat decisions; Date:
Listing decisions: [Empty]; Peer reviewers: Asked: Listing decisions:
[Empty]; Peer reviewers: Responded: Listing decisions: [Empty]; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
[Empty]; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Designation of Critical
Habitat for the Rio Grande Silvery Minnow (64 FR 36274); Date: Listing
decisions: Jul. 6, 1999; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 1; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
the Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum) (64
FR 37419); Date: Listing decisions: Jul. 12, 1999; Peer reviewers:
Asked: Listing decisions: 4; Peer reviewers: Responded: Listing
decisions: 1; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: [Empty]; Peer reviewers' response: Disagree:
Listing decisions: 1; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
the Huachuca Water Umbel (64 FR 37441); Date: Listing decisions: Jul.
12, 1999; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers:
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 1; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
the Pacific Coast Population of the Western Snowy Plover (64 FR 68507);
Date: Listing decisions: Dec. 7, 1999; Peer reviewers: Asked: Listing
decisions: [B]; Peer reviewers: Responded: Listing decisions: [Empty];
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing
decisions: [Empty]; Peer reviewers' response: Disagree: Listing
decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
the Woundfin and Virgin River Chub (65 FR 4140); Date: Listing
decisions: Jan. 26, 2000; Peer reviewers: Asked: Listing decisions: 0;
Peer reviewers: Responded: Listing decisions: 0; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: [Empty];
Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Designation of Critical
Habitat for the Spikedace and the Loach Minnow (65 FR 24328); Date:
Listing decisions: Apr. 25, 2000; Peer reviewers: Asked: Listing
decisions: 4; Peer reviewers: Responded: Listing decisions: 2; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of
Critical Habitat for the Alameda Whipsnake (Masticop his lateralis
euryxanthus) (65 FR 58933); Date: Listing decisions: Oct. 3, 2000; Peer
reviewers: Asked: Listing decisions: [B]; Peer reviewers: Responded:
Listing decisions: [Empty]; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: [Empty]; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of Critical
Habitat for the San Diego Fairy Shrimp (Branchinecta sandiegoensis) (65
FR 63438); Date: Listing decisions: Oct. 23, 2000; Peer reviewers:
Asked: Listing decisions: 4; Peer reviewers: Responded: Listing
decisions: 2; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: [Empty]; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: 2.
Federal Register title and number: Final Determination of
Critical Habitat for the Coastal California Gnatcatcher (65 FR 63680);
Date: Listing decisions: Oct. 24, 2000; Peer reviewers: Asked: Listing
decisions: 4; Peer reviewers: Responded: Listing decisions: 0; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
[Empty]; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Designation of Critical Habit at for
the Tidewater Goby (65 FR 69693); Date: Listing decisions: Nov. 20,
2000; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers:
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 1; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: 1.
Federal Register title and number: Final Designation of
Critical Habitat for the Plant Lesquerella Thamnophila (Zapata
Bladderpod) (65 FR 81182); Date: Listing decisions: Dec. 22, 2000; Peer
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded:
Listing decisions: 1; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: [Empty]; Peer reviewers' response:
Disagree: Listing decisions: 1; Peer reviewers' response: Neutral:
Listing decisions: [Empty]; Peer reviewers' response: Unknown/ unclear:
Listing decisions: [Empty].
Federal Register title and number: Final Designation of Critical
Habitat for the Mexican Spotted Owl (66 FR 8530); Date: Listing
decisions: Feb. 1, 2001; Peer reviewers: Asked: Listing decisions: 7;
Peer reviewers: Responded: Listing decisions: 2; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of Critical
Habitat for Peninsular Bighorn Sheep (66 FR 8650); Date: Listing
decisions: Feb. 1, 2001; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 0; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: [Empty];
Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of Critical
Habitat for the Alaska-Breeding Population of Steller's Eider (66 FR
8850); Date: Listing decisions: Feb. 2, 2001; Peer reviewers: Asked:
Listing decisions: 5; Peer reviewers: Responded: Listing decisions: 2;
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing
decisions: 2; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of Critical
Habitat for the Spectacled Eider (66 FR 9146); Date: Listing decisions:
Feb. 6, 2001; Peer reviewers: Asked: Listing decisions: 3; Peer
reviewers: Responded: Listing decisions: 3; Listing decisions: [Empty];
Peer reviewers' response: Agree: Listing decisions: 2; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: 1.
Federal Register title and number: Final Designation of Critical
Habitat for the Arroyo Toad (66 FR 9414); Date: Listing decisions: Feb.
7, 2001; Peer reviewers: Asked: Listing decisions: 5; Peer reviewers:
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: 2; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of
Critical Habitat for the Zayante Band-Winged Grasshopper (66 FR 9219);
Date: Listing decisions: Feb. 7, 2001; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of
Critical Habitat for the Morro Shoulderband Snail (66 FR 9233); Date:
Listing decisions: Feb. 7, 2000; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
1; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: 1.
Federal Register title and number: Final Determinations of Critical
Habitat for the California Red-legged Frog (66 FR 14626); Date: Listing
decisions: Mar. 13, 2001; Peer reviewers: Asked: Listing decisions: 5;
Peer reviewers: Responded: Listing decisions: 2; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Designation of Critical
Habitat for the Arkansas River Basin Population of the Arkansas River
Shiner (66 FR 18002); Date: Listing decisions: Apr. 4, 2001; Peer
reviewers: Asked: Listing decisions: 9; Peer reviewers: Responded:
Listing decisions: 0; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: [Empty]; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of
Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha
bayensis) (66 FR 21450); Date: Listing decisions: Apr. 30, 2001; Peer
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded:
Listing decisions: 3; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 3; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of Critical
Habitat for the Great Lakes Breeding Population of the Piping Plover
(66 FR 22938); Date: Listing decisions: May 7, 2001; Peer reviewers:
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 2; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: 1.
Federal Register title and number: Final Designation of Critical
Habitat for the Riverside Fairy Shrimp (66 FR 29384); Date: Listing
decisions: May 30, 2001; Peer reviewers: Asked: Listing decisions: 4;
Peer reviewers: Responded: Listing decisions: 2; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: 1.
Federal Register title and number: Designation of Critical Habitat for
the Spruce-fir Moss Spider (66 FR 35547); Date: Listing decisions: Jul.
6, 2001; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers:
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Determination of Critical
Habitat for Wintering Piping Plovers (66 FR 36138); Date: Listing
decisions: Jul. 10, 2001; Peer reviewers: Asked: Listing decisions: 5;
Peer reviewers: Responded: Listing decisions: 3; Listing decisions:
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer
reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Final Designation of Critical
Habitat for Sidalcea oregana var. calva (Wenatchee Mountains checker-
mallow) (66 FR 46536); Date: Listing decisions: Sep. 6, 2001; Peer
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded:
Listing decisions: 1; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 1; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Federal Register title and number: Final Designation of Critical
Habitat for the Kootenai River Population of the White Sturgeon (66 FR
46548); Date: Listing decisions: Sep. 6, 2001; Peer reviewers: Asked:
Listing decisions: 4; Peer reviewers: Responded: Listing decisions: 2;
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing
decisions: 2; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Determination of Critical Habitat
for the Oahu Elepaio (Chasiempis san dwichensis ibidis) (66 FR 63752);
Date: Listing decisions: Dec. 10, 2001; Peer reviewers: Asked: Listing
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
the Quino Checkerspot Butterfly (Euphydryas editha quino) (67 FR
18356); Date: Listing decisions: Apr. 15, 2002; Peer reviewers: Asked:
Listing decisions: 5; Peer reviewers: Responded: Listing decisions: 0;
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing
decisions: [Empty]; Peer reviewers' response: Disagree: Listing
decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Final Designation of Critical
Habitat for the San Bernardino Kangaroo Rat (67 FR 19812); Date:
Listing decisions: Apr. 23, 2002; Peer reviewers: Asked: Listing
decisions: 9; Peer reviewers: Responded: Listing decisions: 6; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
5; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: 1; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Critical Habitat Designation
for Chorizanthe robusta var. robusta (Robust Spineflower) (67 FR
36822); Date: Listing decisions: May 28, 2002; Peer reviewers: Asked:
Listing decisions: 3; Peer reviewers: Responded: Listing decisions: 3;
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing
decisions: 3; Peer reviewers' response: Disagree: Listing decisions:
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty];
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
Chorizanthe pungens var. pungens (Monterey Spineflower) (67 FR 37498);
Date: Listing decisions: May 29, 2002; Peer reviewers: Asked: Listing
decisions: 4; Peer reviewers: Responded: Listing decisions: 4; Listing
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions:
4; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer
reviewers' response: Neutral: Listing decisions: [Empty]; Peer
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Critical Habitat Designation
for Chorizanthe robusta var. hartwegii (Scotts Valley Spineflower) (67
FR 37336); Date: Listing decisions: May 29, 2002; Peer reviewers:
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 3; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
the Carolina Heelsplitter (67 FR 44502); Date: Listing decisions: Jul.
2, 2002; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers:
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers'
response: Disagree: Listing decisions: [Empty]; Peer reviewers'
response: Neutral: Listing decisions: [Empty]; Peer reviewers'
response: Unknown/ unclear: Listing decisions: [Empty].
Federal Register title and number: Designation of Critical Habitat for
Newcomb's Snail (67 FR 54026); Date: Listing decisions: Aug. 20, 2002;
Peer reviewers: Asked: Listing decisions: 6; Peer reviewers: Responded:
Listing decisions: 6; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: 4; Peer reviewers' response:
Disagree: Listing decisions: 2; Peer reviewers' response: Neutral:
Listing decisions: [Empty]; Peer reviewers' response: Unknown/ unclear:
Listing decisions: [Empty].
Federal Register title and number: Designation of Critical Habit at for
the Northern Great Plains Breeding Population of the Piping Plover (67
FR 57638); Date: Listing decisions: Sep. 11, 2002; Peer reviewers:
Asked: Listing decisions: 9; Peer reviewers: Responded: Listing
decisions: 5; Listing decisions: [Empty]; Peer reviewers' response:
Agree: Listing decisions: 5; Peer reviewers' response: Disagree:
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing
decisions: [Empty].
Federal Register title and number: Appalachian elktoe final critical
habitat (67 FR 61016); Date: Listing decisions: Sep. 27, 2002; Peer
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded:
Listing decisions: 0; Listing decisions: [Empty]; Peer reviewers'
response: Agree: Listing decisions: [Empty]; Peer reviewers' response:
Disagree: Listing decisions: [Empty]; Peer reviewers' response:
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/
unclear: Listing decisions: [Empty].
Source: GAO analysis of U.S. Fish and Wildlife Service data.
[A] The Service's peer review policy does not apply to this decision
because its most recent comment period opened before the policy became
effective.
[B] Documentation unavailable.
[C] In one instance, the peer reviewer did not explicitly state
agreement with the decision, but his comments do not bring up anything
to suggest disagreement; rather, he provided only minor clarifications
to the proposed decision document.
[End of table]
[End of section]
Appendix IV: The Nature of Scientific Controversy Surrounding Listing
and Critical Habitat Decisions:
Based on discussions with Service officials, experts, and others
knowledgeable about the Endangered Species Act, we found that several
scientific disagreements over Service listing decisions have surfaced
in recent years--mostly concerning whether the amount of information
available at the time a decision is made suffices as a basis for a
decision. Regarding critical habitat decisions, we found there has been
scientific controversy surrounding whether the areas chosen as critical
habitat is sufficiently defined or the overall information used to
support the designation is adequate.
Listing:
Although we found that scientific disagreements surrounding listing
decisions are not widespread, some of the controversy in recent years
can be categorized as "science-related." Experts and others working
with the Endangered Species Act that we spoke with identified 11
species where there was significant scientific controversy surrounding
the decisions to list the species.[Footnote 50] Our discussions with
these individuals and a review of related Federal Register notices
revealed that the most common scientific disagreements hinge on whether
enough information was available to determine (1) whether the plants or
animals under consideration qualified as a "species" as defined by the
act, (2) the status of the species, or (3) the degree of threat that
the species faces.
Critics of some listing decisions argued that the Service lacked
information to determine whether the entity in question met the
definition of a "species." The act defines a species as including "any
subspecies of fish or wildlife or plants, and any distinct population
segment of any species of vertebrate fish or wildlife which interbreeds
when mature."[Footnote 51] There is general agreement within the
scientific community as to what constitutes a species and this has not
been a major source of controversy in most listing decisions.[Footnote
52] Disagreements typically arise over whether entities that are
genetically, morphologically, or behaviorally distinct, but not
distinct enough to merit the rank of species; qualify for protection as
a distinct population segment (DPS). Under Service policy, to be
identified as a DPS, a population segment must be both discrete and
significant.[Footnote 53] In order to be discrete, the population must
be markedly separate from other populations as a consequence of
physical, physiological, ecological, or behavioral factors. If a
population segment is considered discrete, its biological and
ecological significance will then be considered. This consideration
would include such factors as evidence that the loss of the population
would result in a significant gap in the range of a species.
For example, disagreement surrounded the decision to list the
population of the Sonoma County California tiger salamander, a large
terrestrial salamander that is native to California. According to
critics of the listing decision, the results of genetic testing did not
show the salamander to be distinct, or discrete, from other populations
of the California tiger salamander and therefore the population did not
qualify as a DPS. The Service disagreed with the critics'
interpretation of the data, stating that it believed the data referred
to by the critics show the salamander to be distinct from other
populations. The Service said that additional sampling and genetic work
provided further substantial evidence of the genetic discreteness of
the population. Additionally, the Service relied on the salamander's
geographic isolation in making a determination that the population
qualified for protection as a DPS.
Service policy also allows international governmental boundaries that
delineate differences in the management of the species or its habitat
to be used to determine if a species meets the discrete criterion. Some
critics have argued against using international boundaries as a
criterion to define a DPS. For example, critics of the decision to list
the Arizona population segment of the cactus ferruginous pygmy-owl
stated that the Service had no biological or regulatory authority to
rely on international boundaries to draw a distinct population segment.
The pygmy-owl is a small bird that occurs in the southwestern United
States extending south into Mexico.
The Service recognizes that using international boundaries as a measure
of discreteness may introduce a nonbiological element to the
recognition of a distinct population segment. However, in its policy,
the Service determined that it is reasonable to recognize units
delimited by international boundaries when these units coincide with
differences in the management, status, or exploitation of a species. In
the case of the pygmy-owl, the Service reported the status of the owl
in the United States is different from that in Mexico, and Arizona is
the only area within which the government of the United States can
affect protection and recovery for the species, so it was appropriate
to protect the pygmy-owl as a DPS.
In its review of science and the Endangered Species Act, the National
Research Council found that although it may be appropriate to delineate
population segments based on political boundaries, there are no
scientific reasons to do so as these boundaries often do not always
coincide with major natural geographic boundaries.[Footnote 54] To
provide more scientific objectivity in identifying distinct population
segments, the Council recommended that the Service define a distinct
population segment based solely on scientific grounds and limit the
definition to segments of biological diversity containing the potential
for a unique evolutionary future. Such segments would be determined by
looking at such factors as a population's morphology (or physical
appearance), behavior, genetics and geographical separation or
isolation from other populations. Service officials agree that the
inclusion of international boundaries in determining whether a
population segment is discrete is sometimes undertaken as a matter of
policy rather than science. However, the Service believes that using
international borders is appropriate and necessary to comply with
congressional intent. When there are international boundaries that
coincide with differences in the management, status, or exploitation of
a species, as described above, the Service stated that it is
appropriate to recognize these borders when making a listing
determination.
Scientific disagreement also surrounds the status of a species and the
degree to which identified threats imperil it. When making a listing
determination, the Service must evaluate a species' status, such as
where it occurs or its population numbers, and the degree of threat it
faces. The Service can determine that a species is threatened or
endangered because of any of several factors such as the destruction of
habitat, disease or predation, or other natural or manmade factors
affecting the species' survival. Several of the scientific disputes
that we encountered centered on how widespread the species in question
is or how intense or significant the threats to the species are. For
example, state agencies commenting on the proposal to list the Canada
lynx said that the rule failed to demonstrate there were significant
reductions to the species' population. Critics of the rule said that
the scientific information--which was largely in the form of one
comprehensive report--failed to assess lynx population size, status,
and trends. The Service agreed that the available information
concerning lynx population status, trends, and historic range is
limited. However, after reviewing historic and current records for both
Canada and the United States, sightings and track records, personal
communications with lynx, hare, and forest ecology experts, and a
review of all available literature, the Service said it was able to
make several conclusions about the status of the lynx and found that it
warranted listing as threatened.
Figure 5: Canada lynx:
[See PDF for image]
Note: The Canada lynx is a medium-sized cat that is adapted for hunting
in the deep snow, and is known to prey primarily upon the snowshoe
hare. In the contiguous United States, the distribution of the lynx is
known from the Cascade and Rocky Mountain Ranges in the West, the
western Great Lakes Region, and along the Appalachian Mountain Range of
the northeastern portion of the country.
[End of figure]
Additionally, critics of the proposal to list the lynx claimed that the
Service failed to demonstrate significant threats to the lynx's
survival. For example, some stated that there is little evidence to
support claims that current management practices, including timber
harvesting and human access, adversely affect the lynx. While the
Service acknowledged the lack of quantifiable information to determine
whether some of the possible threats have or would have resulted in
lynx declines, it concluded that the factor threatening lynx in the
contiguous United States is the lack of guidance in existing federal
land management plans for conservation of lynx and lynx habitat.
Service officials told us that it is important to consider both the
threats and the status of the species when making a listing
determination. For example, if only a species' population numbers were
considered, it might appear to be abundant. Once the threats are
factored in, however, the species might be threatened or endangered. On
the other hand, if the species numbers are low but the species faces no
considerable threats, it may not warrant protection under the act.
Critical Habitat:
Experts and others we spoke to identified 10 species where there was
scientific controversy concerning the decision to designate critical
habitat for them.[Footnote 55] For example, one concern is whether the
area chosen as critical habitat is sufficiently defined or the overall
information used to support the designation is adequate. Most of the
identified species are widespread or occur in rapidly developing areas,
such as southern California.
One of the major sources of disagreement is the way in which the
Service identifies land to be included in critical habitat. The Service
is required to designate as critical habitat those areas that it deems
essential to a species' conservation and that may require special
management considerations and protection. To reach this conclusion, the
Service describes the species' habitat needs for conservation, or the
species' "primary constituent elements," such as nesting or spawning
grounds, feeding sites, or areas with specific geologic features or
soil types. The Service's regulations also require the delineation of
critical habitat using reference points and lines as found on standard
topographic maps of the area. The Service uses written descriptions
and/or maps to outline the areas it considers critical habitat for a
listed species. In some cases, when maps are used to outline the area,
parts of the area that fall within the mapped boundaries do not contain
the primary constituent elements defined by the Service. For example,
building structures, roads, or other major structures, such as an
airport, may fall within the mapped boundaries of critical habitat, but
are not suitable habitat. The Service maintains that these areas would
not be considered critical habitat because they do not contain the
primary constituent elements needed by the species. The Service stated
that the precise mapping of critical habitat boundaries is impractical
or impossible because the legal descriptions for these precise
boundaries would be unwieldy.
The scientific controversy surrounding many of the critical habitat
proposals that we reviewed stems from disagreement or confusion over
which areas within the land outlined by the Service would count as
critical habitat. Critics responding to these proposed rules often
complained that the Service's definitions of primary constituent
elements were vague or too broad to be useful. Additionally, several
critics found the Service's assertion that only areas containing
primary constituent elements would be considered critical habitat to be
confusing, noting that it did not allow for a discrete boundary. In
some instances, landowners voiced concerns that their property fell
within proposed critical habitat boundaries even though the land did
not seem to contain the primary constituent elements. For example,
critics of the proposed critical habitat of the California red-legged
frog stated that the Service's description of the critical habitat was
vague and did not specifically identify the locations of the frog's
habitat.
Figure 6: California red-legged frog:
[See PDF for image]
Note: The California red-legged frog is the largest native frog found
in the western United States, and its critical habitat consisted of
over 4 million acres in California.
[End of figure]
Critics of the rule stated that the proposal was confusing and that
landowners would be forced to survey for the frog when undertaking a
project. Such an action, they contended, is improper because it places
the onus on private landowners to make sure their land does not contain
critical habitat. The Service stated that due to the mapping unit it
used it was not able to exclude all nonessential lands, such as roads.
According to the Service, because these areas do not contain the
primary constituent elements, federal agencies would not be required to
consult the Service before taking action.
We also identified scientific disagreement stemming from designations
made for species that require dynamic habitats. Designating critical
habitat, which requires selecting a fixed habitat area, can be
particularly difficult when a listed species may require a habitat that
is dynamic, or changing, in nature. For example, lands that have been
burned, cleared, or otherwise disturbed may be essential to a species
or may be important for only certain periods of a species' life cycle.
Many landscapes change because of natural causes, such as the age and
make-up of a forest, and therefore it may be difficult to designate one
particular area as habitat because the area may change over time,
causing a change in the value of the habitat for the listed species.
For example, scientific disagreement surrounded the critical habitat
designation of the Southwestern willow flycatcher partly because of the
bird's changing habitat requirements. Comments received on the proposed
critical habitat rule stated that because riparian habitats are in a
constant state of change, any boundaries defined as critical habitat
would also be subject to change. Further, according to critics, the
boundaries described by the Service did not meet regulatory
requirements because they were difficult to interpret and could change
seasonally. In the final rule designating critical habitat, the Service
agreed that its original boundaries of critical habitat did not
incorporate the dynamic nature of riparian systems. To resolve this
issue, the Service stated that the final boundaries would be
established in accordance with the 100-year flood zone, which would
include most changes in stream flow and most seasonal changes.
Figure 7: Southwestern willow flycatcher:
[See PDF for image]
Note: The Southwestern willow flycatcher is a small bird found in the
southwestern United States. The designation of the flycatcher consisted
of more than 500 miles of river habitat in the southwest.
[End of figure]
In addition to controversy surrounding the identification of specific
areas for critical habitat, many critics of the proposed rules that we
reviewed argued that the Service had insufficient information on which
to base its determination and that the Service should not designate
critical habitat until the habitat requirements of the species could be
better defined. Other critics objected to the Service's use of
unpublished or otherwise unavailable data, stating that this type of
information is inadequate to support critical habitat designations.
Service officials said that they have been required to complete
critical habitat decisions under short time frames because of court-
imposed deadlines. According to Service officials, given the resource
and time constraints under which Service scientists work, scientists
are often unable to collect new information and agree that the
information available may be limited. Thus, the Service relies on both
unpublished and published information and will use whatever scientific
information it deems credible to help make a determination.
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Trish McClure (202) 512-6318:
Staff Acknowledgments:
In addition to the individual named above, Bob Crystal, Charlie Egan,
Doreen Stolzenberg Feldman, Alyssa M. Hundrup, Nathan Morris, and Judy
Pagano made key contributions to this report.
(360260):
FOOTNOTES
[1] The Department of the Interior, which has responsibilities for
implementing the Endangered Species Act, has delegated its
responsibility to the U.S. Fish and Wildlife Service, which established
an endangered species program to implement the requirements of the act.
The Department of Commerce, which has delegated its responsibilities to
the National Marine Fisheries Service, is responsible for implementing
the act for anadromous fish and most marine species. This report does
not address the National Marine Fisheries Service program.
[2] 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).
[3] 16 U.S.C. §1533(b).
[4] 16 U.S.C. §1533(a)(1). The Service must also use these factors to
determine if a species should be reclassified from endangered to
threatened or vice versa and, in some instances, whether it should be
delisted. The Service would not take into consideration these factors
to delist a species because it is extinct.
[5] The totals count a species or subspecies only one time, even if it
occurs on the list more than once. A species or subspecies could be
listed more than once if, for example, it was threatened in one part of
its range and endangered in the rest of its range (these are known as
"dual status species"). Similarly, a species or subspecies might occur
on the list more than once if more than one distinct population segment
of a species is listed. Distinct population segments are populations of
vertebrate species that are discrete, for example, because they are
geographically separated from other populations of the species.
[6] 16 U.S.C §1532(5).
[7] 16 U.S.C. §1538(a)(1)(B), (C). The Endangered Species Act prohibits
the taking of endangered, but not threatened, species. However, the act
authorizes the Service to, by regulation, prohibit the taking of a
threatened species. The Service has issued a regulation extending the
take prohibitions to threatened species, except for those covered by a
specific rule, exemption, or permit. See 50 C.F.R. §17.31.
[8] 16 U.S.C. §1532(19).
[9] The Department of the Interior has recently issued a code of
scientific conduct to be used by all Interior scientists--including the
Service--to ensure that all research and analysis is conducted
according to the highest standards of the scientific community.
[10] The Service uses the same process to delist or to reclassify a
species from endangered to threatened or vice versa. Either action may
be initiated through a petition or by the Secretary of the Interior.
[11] The Service bases its determination on whether or not there is
"substantial" information to proceed. Substantial information is
defined by Service regulations as information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted. 50 C.F.R. § 424.13(b).
[12] If the field office determines the petition is not warranted or is
warranted but precluded, the Service will issue a notice in the Federal
Register. This notice goes through a similar internal review process. A
"warranted but precluded" finding is made when the petitioned action is
precluded from immediate action by other, higher priority actions. The
Service reevaluates warranted but precluded petitions every 12 months
until either a proposed rule is issued or a "not warranted" finding is
made.
[13] 67 Fed. Reg. 8452 (Feb. 22, 2002).
[14] Office of Management and Budget, Memorandum for the President's
Management Council, Sept. 20, 2001.
[15] U.S. General Accounting Office, Federal Research: Peer Review
Practices at Federal Science Agencies Vary, GAO/RCED-99-99 (Washington,
D.C.: Mar. 17, 1999).
[16] 59 Fed. Reg. 34270 (July 1, 1994). The Service is currently
drafting interim peer review guidance that will provide objectives and
procedures for implementing the 1994 peer review policy. It does not
have an estimated date when it will issue permanent guidance.
[17] National Research Council, Strengthening Science at the U.S.
Environmental Protection Agency: Research-Management and Peer-Review
Practices (Washington D.C.: National Academy Press, 2000).
[18] Although the Service published 101 listing and critical habitat
decisions during fiscal years 1999 through 2002, the decision to list
as threatened the Lake Erie water snakes (64 Fed. Reg. 47126 (Aug. 30,
1999)) is not included in this analysis because the comment period for
the proposed rule opened before the Service's peer review policy became
effective.
[19] In two additional instances, documentation is also unavailable to
indicate how many reviewers were asked but there is documentation that
the number of respondents was greater than two. In these instances, we
credited the Service with having solicited at least three peer
reviewers.
[20] Carroll, R., et al., Strengthening the Use of Science in Achieving
the Goals of the Endangered Species Act: An Assessment by the
Ecological Society of America. Ecological Applications, 6(1): 1-11
(1996).
[21] National Research Council, Science and the Endangered Species Act
(Washington D.C.: National Academy Press, 1995) 202.
[22] National Research Council, Genetic Status of Atlantic Salmon in
Maine: Interim Report from the Committee on Atlantic Salmon in Maine
(Washington D.C.: National Academy Press, 2002).
[23] Baltimore Gas and Electric Co. v. Natural Resources Defense
Council, 462 U.S. 87, 103 (1983); Kleppe v. Sierra Club, 427 U.S. 390,
412 (1976).
[24] Baltimore Gas and Electric Co., 462 U.S. at 105.
[25] San Luis v. Badgley, 136 F. Supp.2d 1136 (E.D.Cal. 2000).
[26] American Wildlands v. Norton, 193 F.Supp.2d 244 (D.D.C. 2002).
[27] The Endangered Species Act defines an endangered species and a
threatened species as a species that is endangered or threatened
throughout all "or a significant portion" of its range. 16 U.S.C.
§1532(6), (20). In fiscal year 2003, the Service lost another listing
case on similar grounds. See Defenders of Wildlife v. Norton, 239
F.Supp.2d 9 (D.D.C. 2002).
[28] Defenders of Wildlife v. Norton, 258 F.3d 1136 (9TH Cir. 2001).
[29] Southwest Center for Biological Diversity v. Norton, 2002 WL
1733618, No. 98-934 (D.D.C. 2002).
[30] The range to be considered is not limited to areas within the
United States. Defenders of Wildlife v. Norton, 258 F.3d at 1145.
[31] An additional 8 foreign species have been delisted, 7 due to
recovery and 1 due to erroneous data.
[32] Amendments to the act in 1978 restricted protection for distinct
population segments to vertebrates. The species listed was the Florida
population of the Bahama swallowtail butterfly, and thus the act, as
amended, required that the species be removed from the endangered
species list. See 49 Fed. Reg. 34501 (Aug. 31, 1984).
[33] National Research Council, Science and the Endangered Species Act
(Washington D.C.: National Academy Press, 1995) 71-93.
[34] In fiscal year 2003, a court overturned one additional critical
habitat decision of the Service partly on the basis of issues related
to the use of scientific data. See Home Builders Association of
Northern California v. United States Fish and Wildlife Service, No. CV
F 01-5722 AWI SMS (E.D.Cal. May 9, 2003).
[35] Middle Rio Grande Conservancy District v. Babbitt, 206 F.Supp.2d
1156 (D.N.M. 2000), aff'd, 294 F.3d 1220 (10TH Cir. 2002).
[36] National Association of Homebuilders v. Norton, 2001 WL 1876349,
No. 00-CV-903 (D.Ariz. 2001).
[37] 16 U.S.C. §1533(a)(3).
[38] 50 C.F.R. §424.12(a)(1)(ii). The regulation also provides that it
is not prudent when the species is threatened by human activity and
identification of the habitat can be expected to increase the threat.
[39] The Service's reasoning is based on its reading of the law, as
implemented by its regulations. The benefit provided by a critical
habitat designation is protection from federal agency actions--the act
requires federal agencies to consult with the Service to ensure that
any activities they carry out, fund, or authorize are not likely to
result in the "destruction or adverse modification" of a critical
habitat. 16 U.S.C. §1536(a)(2). The act also requires federal agencies
to insure that their activities are not likely to "jeopardize the
continued existence" of a listed species. Id. Service regulations
define these two terms somewhat similarly. See 50 C.F.R. §402.02. The
Service reasons that virtually any federal action that would destroy or
adversely modify a species' critical habitat would also jeopardize the
species' existence. The Service thus concludes that critical habitat
designations do not provide additional conservation benefit beyond that
already afforded all listed species.
[40] Natural Resources Defense Council v. United States Department of
the Interior, 113 F.3d 1121 (9TH Cir. 1997). See also Sierra Club v.
United States Fish and Wildlife Service, 245 F.3d 434 (5TH Cir. 2001).
[41] New Mexico Cattle Growers v. United States Fish and Wildlife
Service, 248 F.3d 1277 (10TH Cir. 2001).
[42] The Service's approach was premised on the idea that designating
critical habitat does not provide protection to a species beyond the
protection already provided by listing the species. See footnote 39.
[43] In the 1997 final rule designating critical habitat for the
southwestern willow flycatcher, the Service stated that it was unable
to provide the level of analysis and completeness that it has in
previous rules because of a court imposed deadline--the result of the
Service's previous determination that critical habitat provided little
additional benefit to the species. Even with a minimal level of
analysis and completeness, the Service noted that it had to disrupt
significant work at the field office, regional, and national levels in
order to provide the resources to complete the rule. See 62 Fed. Reg.
39129 (July 22, 1997).
[44] See 64 Fed. Reg. 31871 (June 14, 1999).
[45] 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).
[46] We focused on the U.S. Fish and Wildlife Service even though it
shares responsibility with the National Marine Fisheries Service for
implementing the Endangered Species Act because the Fish and Wildlife
Service has lead responsibility, as of April 2003, for 1,237 of the
1,263 listed species in the United States. The two Services share
responsibility for 6 species.
[47] The List of Endangered and Threatened Wildlife and Plants created
under the act identifies listed species as either domestic or foreign.
The Service's Endangered Species Program deals primarily with domestic
species found in the U.S. and U.S. territories, while the International
Affairs Program of the Service deals primarily with foreign endangered
species--including issuing permits for their import or export and
representing the Service under the Convention on International Trade in
Endangered Species (CITES).
[48] Energy and Water Development Appropriations Act of 1980, Pub. L.
No. 96-69, 93 Stat. 437, 449 (1979).
[49] 16 U.S.C. §1538(a)(1)(B), (C). The Endangered Species Act
prohibits the taking of endangered, but not threatened, species.
However, the act authorizes the Service to, by regulation, prohibit the
taking of a threatened species. The Service has issued a regulation
extending the take prohibitions to threatened species, except for those
covered by a specific rule, exemption, or permit. 50 C.F.R. §17.31.
[50] In total, these experts identified 25 species where they believed
there was significant scientific controversy regarding listing the
species. We limited our review to only those species that had been
formally listed within the past 10 years; we excluded 14 species from
our review either because the species was not listed or because it was
listed prior to 1993.
[51] 16 U.S.C. §1532(16).
[52] While there are differing definitions for the term species, it is
often defined as groups of interbreeding natural populations that are
reproductively isolated from other such groups.
[53] 61 Fed. Reg. 4722 (Feb. 7, 1996).
[54] National Research Council, Science and the Endangered Species Act
(Washington D.C.: National Academy Press, 1995) 71-93.
[55] In total, these experts identified 13 species where there was
scientific controversy concerning their critical habitat designation.
We limited our review to species that had critical habitat formally
designated within the past 10 years; we excluded 3 species from our
review either because the species critical habitat was not yet
finalized, or because it was designated prior to 1993.
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