GAO testimony
before the Subcommittee on Fisheries, Wildlife and Water,
Committee on Environment and Public Works,
United States Senate
June 1, 2005
|
Successes and Challenges in Agency Collaboration and
the Use of Scientific Information in the Decision Making
Process Statement of Robin M. Nazzaro, Director Natural
Resources and Environment
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Why GAO Did this Study
The purpose of the Endangered Species Act is to conserve
endangered and threatened species, and the ecosystems upon which
they depend. This law currently protects more than 1,260 animal and
plant species. Within the Department of the Interior, the Fish and
Wildlife Service implements and enforces the act. In addition, all
federal agencies, such as the Department of Defense and the Bureau
of Land Management, must ensure that their activities do not
jeopardize a protected species' continued existence, or adversely
modify or destroy habitat that has been designated as critical to
its survival. The Endangered Species Act, and its implementation,
can be controversial when there are conflicting uses for a natural
resource as, for example, when timber on federal lands is both
habitat for endangered and threatened species, and a valuable
commodity to be harvested. Conflicts also occur over the adequacy or
interpretation of scientific information in making species
protection decisions. GAO has issued numerous reports on the
implementation of the Endangered Species Act. This testimony is
based primarily on four of these reports and addresses (1)
collaboration among federal agencies to conserve threatened and
endangered species and (2) utilization of scientific information by
the Fish and Wildlife Service. www.gao.gov/cgi-bin/getrpt?GAO-05-732T
To view the full product, including the scope and methodology,
click on the link above. For more information, contact Robin Nazzaro
at 202.512.3841 or nazzaror@gao.gov.
What GAO Found
We have found that effective agency collaboration can reduce
conflict over competing uses of natural resources and improve
agencies' abilities to protect species while carrying out other
mission-related activities. While we have noted several instances of
effective interagency cooperation, we have also discovered that
agencies could be doing more to work together to find effective
species protections. For example, at one military facility, Air
Force officials worked with the Fish and Wildlife Service and others
to entice the endangered Sonoran pronghorn - a species similar in
appearance to antelope - away from military training areas. As a
result, the agencies were able to minimize the impact of species
protections on training exercises. Previously, Air Force officials
had reported that 32 percent of their live-fire missions were either
cancelled, or moved, due to the presence of the pronghorn. However,
we have found that there are obstacles to further agency
collaboration that need to be addressed.
We have found that the Fish and Wildlife Service generally used
the best available information in key endangered species decisions,
although the agency was not always integrating new research into
ongoing species management decisions. For example, since the Bureau
of Land Management eliminated sheep grazing on more than 800,000
acres in tortoise habitat in California, neither the Bureau or the
Fish and Wildlife Service had ensured that necessary research was
conducted to assess whether this action had benefited the tortoise.
Unless managers link research findings to recovery actions, they
cannot develop a scientific basis to make decisions about whether
land use restrictions - such as limiting grazing or other activities
in tortoise habitat - should remain unchanged, be strengthened, or
whether alternative actions are more appropriate. Developing such
information is important, as some of the restrictions imposed to
protect the tortoise have been controversial, because of their broad
impact; and some affected by the restrictions have questioned
whether they are necessary for the tortoise's recovery.
Mr. Chairman and Members of the
Subcommittee:
I am pleased to be here today to discuss our work related to the
Endangered Species Act. As you know, the purpose of the act is to
conserve endangered and threatened species, and the ecosystems upon
which they depend. This law currently protects more than 1,260
animal and plant species. Under the act, no one may "take"
a protected species, which is defined as harming, harassing,
pursuing, shooting, wounding, killing, trapping, hunting, capturing,
or collecting, or attempting any such conduct. In addition, federal
agencies and federally authorized activities may not jeopardize a
species' continued existence, or adversely modify habitat deemed
critical for a species' survival. The U.S. Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS) -
collectively referred to as the Services - are responsible for
working with other federal agencies, tribal, state, and local
governments, private companies, and citizens to ensure that species
are appropriately protected. In addition, all federal agencies are
directed by the act to utilize their authorities to conserve
threatened and endangered species.
The act requires FWS and NMFS to list as endangered any species
facing extinction, and to list as threatened any species likely to
become endangered in the foreseeable future. When a species is
listed, the act also generally requires the agencies to designate
critical habitat - habitat essential to a species' conservation -
because the loss of habitat is often the principal cause of species
decline. FWS and NMFS are also required to develop a plan to recover
the listed species to the point that they are no longer endangered
or threatened, an achievement marked by their removal, or delisting,
from the list of endangered or threatened species.
The act's success in protecting species depends on one's point of
view. Some believe it has been successful, because in the face of
chronic underfunding, only 9 species have gone extinct since the
act's inception, others say it has been a failure because only 9
species have been recovered. Advocates on both sides of the argument
would likely agree, however, that the Endangered Species Act and its
implementation have served as lightning rods in the ongoing national
debate concerning the tradeoffs that must often be made between
economic, social, and environmental values. The tradeoffs required
to implement the act were vividly apparent in 1978, when the Supreme
Court ruled that construction of the Tellico Dam could not be
completed because doing so would jeopardize the continued existence
of the endangered snail darter - a species of fish.1
The dam, which has since been completed,2
is located on the Little Tennessee River and provides flood control,
hydropower, and water supply. In this case, the Court ruled that the
Endangered Species Act explicitly prohibits activities that would
jeopardize the continued existence of an endangered species, or
result in the destruction or modification of its habitat, and stated
that the act represents a Congressional decision to require agencies
to give greater priority to the protection of endangered species
than to their other missions. Under the Court's decision, federal
agencies generally are prohibited from authorizing, funding, or
carrying out actions, such as dam construction, permitting timber
harvesting and livestock grazing, and wetland dredging, if doing so
would jeopardize the continued existence of any endangered or
threatened species, or destroy or adversely modify their critical
habitats.
The legacy of this decision continues to this day, as federal
agencies struggle to balance their obligation to protect species,
and carry out other mission-related activities that often involve
ensuring industries, ranchers, farmers, recreational enthusiasts,
tourists, and others, appropriate access to and use of the very
natural resources on which those species depend. One prominent
recent example is the federally-operated Klamath Project - dams,
reservoirs, and associated facilities - that sits on the
California-Oregon border. Here, under extreme drought conditions,
several federal agencies - including the Services and the Bureau of
Reclamation - are trying to balance the water needs of irrigators
and others who receive water from the project, and threatened and
endangered fish, which must have sufficient water to survive. In
2002, thousands of fish died while water was delivered for
agricultural irrigation; the prior year, farmers experienced crop
losses while water was used to maintain stream flows for fish.3
Another prominent example involved the threatened Northern spotted
owl. In the early 1990s, timber sales on federal lands that are
habitat for the Northern spotted owl were brought to a virtual halt
by federal court injunctions. In various rulings, the federal courts
enjoined the Forest Service and Bureau of Land Management from
selling timber until they addressed issues related to protecting the
habitat of the owl.4
More recently, controversies surrounding the act have centered on
the adequacy of the scientific information used to make decisions
about whether, and how to list species. Just in the past few months,
sparks have flown in response to scientific decisions concerning the
Florida panther, the Preble's meadow jumping mouse, and the greater
sage grouse. In the first case, FWS conceded weaknesses in the data
used to craft some of its plans to protect the endangered panther.
While critics of FWS claim the agency's use of faulty information
was politically motivated, FWS officials defend it as an honest
mistake, made in the context of an ever-evolving body of knowledge.
In the case of the Preble's mouse, FWS announced in January 2005,
that it will propose removing the mouse from the endangered species
list, because new research indicates that it is genetically not a
separate subspecies of meadow jumping mouse, as previously thought.
Critics of the act cite this as evidence that the act does not
require sufficient scientific evidence before a species is listed.
Finally, FWS also recently announced that it will not place the sage
grouse on the endangered species list. Critics of the decision are
concerned that politics interfered with a scientifically justified
decision to list the species. FWS claims that the decision was the
result of an extensive review of scientific data and analysis.
While there are no simple answers to the conflicts and
controversies surrounding the act, we believe that the federal
agencies responsible for managing endangered species and their
habitats can be more effective in how they manage these conflicts,
or potentially avoid conflicts altogether. We have issued more than
15 reports in the past 10 years addressing how the Endangered
Species Act is being implemented. (These reports are listed in Appendix
I along with other GAO reports that discuss the effect of the
act on other programs). Today, I am going to discuss our work on two
of the major issues currently being debated concerning the
Endangered Species Act - the difficulty of balancing species' needs
with other resource uses and the use of science in implementing the
act. Specifically, this testimony addresses (1) collaboration among
federal agencies to conserve threatened and endangered species and
(2) utilization of scientific information by FWS in key Endangered
Species Act decisions.
This testimony is based primarily on four previously issued
reports. In general, we did not perform additional audit work in
preparing this testimony. We made recommendations in these four
reports, and have updated the status of agencies' efforts to
implement our recommendations. Our work was conducted in accordance
with generally accepted government auditing standards.
Summary
In summary, we found that federal agencies have taken steps to
improve collaboration as a way to reduce conflicts that often occur
between species protections and other resource uses, but that more
could be done to promote routine use of collaboration, and clarify
agencies' responsibilities under the Endangered Species Act. In
September 2003, we reported on efforts taken by the Department of
Defense (DOD) to coordinate with other federal land managers, in
order to reduce the impact of species protections on military
activities. We found several cases where such efforts were
successful. For example, at the Barry M. Goldwater range in Arizona,
Air Force officials worked with officials at FWS and the National
Park Service to enhance food sources for the endangered Sonoran
pronghorn, in locations away from military training areas. As a
result, the Air Force was able to minimize the impact of
restrictions on training missions due to the presence of the
pronghorn. However, such cases were few and far between, because,
among other things, there were no procedures or centralized
information sources for facilitating such collaboration. In March
2004, we reported on collaboration that takes place pursuant to
section 7(a)(2) of the act - referred to as the consultation process
- in the Pacific Northwest. In this area, large numbers of protected
species and vast amounts of federal land conspire to make balancing
species protection and resource use a contentious endeavor. We found
that steps the Services and other federal agencies had taken made
the consultation process run smoother, and contributed to improved
interagency relationships. However, some problems have persisted.
For example, some agencies disagree with the Services about when
consultation is necessary, and how much analysis is required to
determine potential impacts on protected species. In each of these
reports, we made recommendations intended to further improve
collaboration among federal agencies, with regard to balancing
species protections and other resource uses, and - in the March 2004
report - to resolve disagreements about the consultations process.
DOD and FWS have begun discussing an implementation strategy to
improve collaboration regarding species protection on military and
other federal lands and development of a training program. With
regard to the consultation process, while FWS and NMFS have
continued to take steps to expand their collaboration processes, the
agencies did not believe that disagreements about the consultation
process require additional steps. They believe that current training
and guidance is sufficient to address questions about the process.
With regard to the use of science, we have found that FWS
generally used the best available information in key Endangered
Species Act decisions, although the agency was not always
integrating new research into ongoing species management decisions.
In addition, we identified concerns with the adequacy of the
information available to make critical habitat decisions. In
December 2002, we reported on many aspects of the decision making
for species protections regarding the Mojave Desert tortoise. We
found that the decision to list the tortoise as threatened, its
critical habitat designation, and the recommended steps in the
species' recovery plan, were based on the best available
information. However, despite over $100 million in expenditures on
recovery actions and research over the past 25 years, it is still
unclear what the status of the tortoise is, and what effect, if any,
recovery actions are having on the species, because research has not
been coordinated in a way to provide essential management
information. Such information is critically important, as some of
the protective actions, such as restrictions on grazing and off road
vehicle use, are vigorously opposed by interest groups who question
whether they are necessary for the tortoise's recovery. Accordingly,
we recommended that FWS better link land management decisions with
research results to ensure that conservation actions and land use
restrictions actually benefit the tortoise. In response, FWS
recently established a new office with a tortoise recovery
coordinator, and plans to create an advisory committee to ensure
that monitoring and recovery actions are fed back into management
decisions. In August 2003, we found that, similar to the decision
making regarding the tortoise, FWS decisions about listing species
for protection under the act were generally based on the best
available information. However, while most critical habitat
designations also appeared to be based on the best available
information, there were concerns about the adequacy of the
information available, at the time these decisions are made.
Specifically, critical habitat decisions require detailed
information of a species' life history and habitat needs and the
economic impacts of such decisions - information that is often not
available, and that FWS is unable to gather, before it is obligated,
under the act to make the decision. As a result, we recommended that
the Secretary of the Interior clarify how, and when, critical
habitat should be designated, and identify if any policy,
regulatory, or legislative changes are required, to enable the
department to make better informed designations. FWS has not
responded to our recommendation.
Collaborating to Protect Endangered Species
At the heart of many of the controversies surrounding the
Endangered Species Act is the competition for natural resources -
competition between the needs of threatened and endangered species,
and resource extraction industries, land owners, and other users of
the natural resources on which those species depend. Our work has
largely focused on the challenges that agencies face in protecting
species while carrying out their other mission-related related
responsibilities, some of which could have a negative impact on
protected species. While our work has highlighted positive examples
where collaboration between federal agencies has reduced conflict,
there is still room for improvement.
Collaboration Can Help the Military Sustain Critical
Functions While Protecting Endangered Species
We saw the importance of collaboration among federal agencies in
our work evaluating the protection of threatened and endangered
species and habitat on military installations in the United States.
Many DOD and other federal agency officials have recognized that
military lands often provide some of the finest remaining examples
of rare wildlife habitat for protected species. In fact, more than
300 threatened or endangered species inhabit military lands.
However, DOD officials are concerned that the presence of protected
species may constrain essential military training. DOD officials
have identified the Endangered Species Act, along with other
factors, such as competition for air space, and urban growth around
military installations, as issues affecting or having the potential
to affect military training and readiness.5
In September 2003,6
we issued a report on the extent to which DOD and other federal land
management agencies are cooperatively managing the protection of
endangered species affecting military training ranges, and the
factors that can limit such collaboration. We found several cases
where DOD and other federal land managers have entered into
cooperative agreements that have benefited both the species and the
military. For example, collaboration among federal agencies around
the Air Force's Barry M. Goldwater Range in Arizona, minimized the
impact of restrictions on training exercises that were necessary to
protect the endangered Sonoran pronghorn (a species similar in
appearance to an antelope). Previously, Air Force officials reported
that 32 percent of their live-fire missions were either cancelled,
or moved, due to the presence of the pronghorn. Air Force officials
worked with FWS and National Park Service officials to jointly fund
forage enhancement plots, which provided food sources for the
Sonoran pronghorn. The plots enticed the pronghorn to an adjacent
national wildlife refuge, and away from military training areas and,
as a result, minimized the impact of restrictions on training
missions.
However, the instances of collaboration between DOD and the
Departments of the Interior and Agriculture were limited. Although
the departments have entered into memorandums of understanding that
contain specific actions to be taken to implement cooperative
management - such as forming interagency working groups, identifying
geographic regions for species management, and identifying reporting
requirements - many of the specific actions in these agreements were
never fully implemented, and most agreements had expired. When there
were examples of cooperative management efforts between DOD and
other federal land managers, they were often initiated in response
to a crisis, such as a marked decline in a species' population, or
land-use restrictions that significantly impacted federal land
managers' abilities to carry out their missions. The Departments of
Defense, the Interior, and Agriculture identified a number of
factors that can limit interagency cooperative management for
endangered species affecting military training ranges. In addition
to the absence of a shared sense of crisis among federal land
managers, other obstacles to agency collaboration included limited
agency interaction, resource constraints, lack of land manager
training and experience, and the lack of centralized or otherwise
easily accessible sources of information.
In our September 2003 report, we recommended that the Secretaries
of Defense, the Interior, and Agriculture develop and implement an
interagency strategy, a comprehensive training program, and a
centralized data source for cooperative management efforts. The
departments concurred on the need to improve interagency
cooperation. The Department of Defense, FWS, and others have
initiated plans for an interagency strategy, training program, and
information sharing mechanisms.
Collaboration Can Help Reduce the Contentiousness of the
Consultation Process
Collaboration is central to the consultation process required
under section 7(a)(2) of the Endangered Species Act, where federal
agency officials must jointly assess the potential impacts of agency
activities on protected species. The process can get contentious,
however, because it sometimes pits officials at the Services against
officials from other agencies, who are attempting to carry out
typical agency activities. For example, the process can become
difficult when an agency such as the Corps of Engineers is planning
an activity in accordance with its mission to support navigation in
the nation's waterways, such as issuing permits for dock
construction, and the Services recommend project changes, in order
to meet the requirements of the Endangered Species Act. Such changes
can impact the nature of the original project, and add to the time
and cost necessary to complete what some agency officials described
as seemingly benign or insignificant activities.
We issued a report in March 2004, that evaluated the consultation
process in the northwestern United States. 7
We were asked to evaluate the consultation process in this region
because of persistent concerns about the time and cost that
consultation added to federal activities and activities that are
federally-permitted or funded. In the northwest United States, the
consultation process is a prominent feature of federal land
management because of the region's combination of large areas of
federal land and significant numbers of listed species. Endangered
or threatened species in this region include the Northern spotted
owl, grizzly bear, Canada lynx, bull trout, and various species of
salmon.
Between 1997 and 2000, 25 species in the northwest were
identified for protection under the Endangered Species Act. This
prompted concerns about the consultation process, because many
projects in the region were delayed, sometimes for years, because of
the Services' inability to address the associated workload
increases. For example, according to a local community
representative, before salmon were listed for protection in the late
1990s, the Corps of Engineers' permitting process for activities,
such as constructing or modifying private docks on Lake Washington,
generally took only 2 or 3 months and averaged about 5 percent of
construction costs. Since salmon were listed, the Corps must consult
with NMFS when issuing these permits. This representative said that,
as a result, the timeframes for permits have increased to about 24
months, and permitting costs have increased to about 33 percent of
construction costs.
We found that, in response to concerns about the consultation
process, the Services and other federal agencies had taken steps in
three general categories to make the consultation process more
collaborative and efficient.
- The Services and other federal agencies took steps to
facilitate collaboration among their staffs so that
disagreements about species protections, and project
modifications could be resolved, before they slowed down the
consultation process. Officials at the agencies cited several
benefits of these steps, such as increased trust between the
Services and other agencies, better communication, and earlier
involvement in projects, which many officials emphasized as
important for consultations to run efficiently.
- The Services and other federal agencies also developed
approaches to reduce the consultation workload, such as
including multiple related activities in a single consultation.
According to officials, this has increased the efficiency of the
consultation process, and enabled the agencies to deal more
quickly with activities for which the effects on species are
known.
- The Services and other federal agencies took steps to increase
the consistency and transparency of the consultation process,
such as providing interagency training courses and posting
guidance and information on agency websites. For example, to
address disagreements between the Services and other federal
agencies, the Services issued guidance on how to assess the
effects of right-of-way permits on protected species.
Despite efforts to improve the consultation process, officials
with the Services and other federal agencies still have concerns
about two key issues. First, officials at the agencies are still
concerned about workload. While staff levels have increased in
recent years, increases in personnel have been outpaced by the
increasing number and complexity of consultations. Officials told us
that more activities are going through the consultation process than
before, and that projects are becoming more complex, requiring
greater analysis and staff time to identify potential impacts on
species, and any necessary protections. Second, officials at the
Services and other federal agencies sometimes disagree about the
extent to which consultation is necessary. Some agency officials
said they feel pressured by the Services - and by the fear of
litigation - to seek consultation, regardless of the likely effects
of an activity on protected species, including in situations where
they feel consultation is unnecessary. Officials at the Services
also cited the fear of litigation, and said they believed that they
were simply fulfilling their responsibilities under the act to
consult on projects that may affect protected species, regardless of
the level of the potential impact. The result is a continued sense
of frustration among agency officials regarding what protections are
necessary under the Endangered Species Act, and the time it takes to
reach agreements in agency consultations.
Because many concerns about the consultation process center on
its timeliness, we recommended in our March 2004 report that FWS and
NMFS work with other agencies to determine how best to capture data
on the level of effort devoted to the consultation process, and use
this information to manage the process. We further recommended that
the Secretaries of the Interior and Defense, the Under Secretary of
Commerce for Oceans and Atmosphere, and the Chief of the Forest
Service work together to resolve disagreements about when
consultation is required, and how detailed an analysis is necessary.
Both FWS and NMFS have taken steps to improve information management
of the consultation process, although it is unclear whether they
have determined how to capture the level of effort devoted to the
process - admittedly, a difficult task. While FWS and NMFS have
continued to take steps to expand collaborative processes, in an
update on their actions, the agencies stated that they did not
believe that disagreements about the consultation process require
the adoption of additional measures. They believe that the current
training and guidance on consultation is sufficient to address
questions about the process.
Using Scientific Information to Make Decisions
Scientific information is a key component of most decisions
regarding the implementation of the Endangered Species Act. Our work
has largely focused on how FWS has used information in key decisions
about endangered species, such as listing threatened and endangered
species, designating critical habitat, and developing species
recovery plans. While we found that FWS has generally done a good
job using available information to make decisions, there is still
room for improvement.
While Many Key Protection Decisions for the Mojave Desert
Tortoise Were Based on the Best Available Information, FWS Has Not
Always Integrated Research Into Ongoing Recovery Decisions
In a December 2002 report, 8
we found that key FWS decisions were supported by the best available
information. We relied on experts identified for us by the National
Academy of Sciences to review FWS listing, critical habitat, and
recovery plan decisions for the Mojave Desert tortoise. Based on
their review of the information available at the time the respective
decisions were made, the scientists we consulted agreed that the
listing of the desert tortoise in 1990, the critical habitat
designation, and the recommendations in the recovery plan were
reasonable. These scientists recognized that, as is often the case
with such decisions, little published data on the species were
available. However, they agreed that FWS's decisions were
appropriate and consistent with their understanding of the agency's
responsibilities under the act.
Our report, however, was less positive with regard to what FWS
had learned about the tortoise since their decisions were made. We
found that while over $100 million (in constant 2001 dollars) had
been spent on research and recovery efforts over the past 25 years,
there was still little known about the species' status, the key
threats to its survival, or the effectiveness of management actions
implemented to help the tortoise. While many actions intended to
protect the tortoise have been taken, necessary research had not
been conducted to determine whether these actions were effective.
For example, the Bureau of Land Management prohibited sheep grazing
on more than 800,000 acres of tortoise habitat in California, and
implemented restrictions on off-road vehicles in tortoise habitat.
While individual studies had been conducted on these issues, the
research had not been coordinated in a way to answer questions about
the impact of such actions on tortoise populations or habitat.
Determining the effectiveness of such protective actions is
important, because they affect large areas of land, were recommended
on the basis of limited published data, and in some cases, are
vigorously opposed by certain interest groups. Unless managers link
research findings to assessments of recovery actions that have been
implemented, they cannot make determinations based on scientific
information as to whether land use restrictions should remain
unchanged, be strengthened, or whether alternative actions are more
appropriate.
To ensure that the most effective actions are taken to protect
the tortoise, we recommended in our December 2002 report that the
Secretary of the Interior develop and implement a coordinated
research strategy for linking land management decisions with
research results, and periodically reassess the recovery plan for
the tortoise. In response, FWS recently established a new office
with a tortoise recovery coordinator and three field coordinators
who will help coordinate research and management. In addition, the
agency plans to create an advisory committee to ensure that
monitoring and recovery actions are fed back into management
decisions. FWS previously utilized an expert committee to review the
recovery plan for the tortoise. Although the committee found that
the plan was fundamentally sound, it similarly recommended that ties
between research and management be strengthened.
Species Listing and Critical Habitat Decisions Are Based On
Best Available Information, but Concerns Remain About the Adequacy
of that Information
Recent concerns about FWS listing and critical habitat decisions
have focused on the role that "sound science" plays in the
decision making process, and whether FWS properly interprets
scientific data and bases its decisions on adequate scientific
information. Critics of FWS decisions warn that improper listing and
critical habitat decisions may disrupt social and economic
activities and divert funding and attention away from species truly
facing extinction. The Endangered Species Act requires FWS to use
the best available information when making decisions to list species
or designate critical habitat. It is important to note that the
"best available" standard does not obligate FWS to conduct
studies to obtain new data, but prohibits the agency from ignoring
available information. FWS goes through an extensive series of
procedural steps that involve public participation and review by
outside experts (i.e., peer reviewers) to help ensure that it
collects relevant data and uses it appropriately.
In August 2003, we reported on FWS's use of available scientific
information in making listing and critical habitat decisions.9
Because of the number of species decisions to analyze, and the
inherent difficulties in independently assessing available
scientific information, and determining what constitutes a
scientific sound decision, we identified several proxies for
assessing the reliability of FWS listing and critical habitat
decisions.
These proxies entailed reviews of:
- The procedures FWS follows for gathering information, and
internally reviewing decision documents;
- Comments from peer reviewers on listing and critical habitat
decisions;
- The outcomes of legal challenges to these decisions; and
- Subsequent changes to FWS listing and critical habitat
decisions, such as after additional scientific information had
been gathered.
In each case, we determined that, overall, FWS species listing
and critical habitat decisions were based on the best available
information. However, experts and others knowledgeable about the
Endangered Species Act have expressed concerns about FWS's ability
to designate critical habitat for some listed species, given the
amount of information available on the species' habitat needs at the
time decisions must be made - at the time of listing or shortly
thereafter. Unlike listing decisions that are more straightforward -
requiring FWS to answer only a "yes or no" question as to
whether a species warrants listing - critical habitat decisions
often require more detailed knowledge of a species' life history and
habitat needs,, and call for FWS to factor in the species' special
management needs, as well as the economic impacts of the
designation. FWS officials, experts, and others with whom we spoke
agreed that the amount of scientific information available when they
are required to designate critical habitat is limited, and often
affects FWS's ability to adequately define the habitat essential to
the species' conservation. While some interested parties stated that
FWS designated areas too broadly, and included lands unsuitable for
several species, others said that FWS did not designate enough
habitat for some listed species. According to FWS officials, the
resource and time constraints under which its scientists work often
preclude them from collecting new information and, as a result,
their ability to produce adequate critical habitat designations may
be limited by the information available for some species. We found
that most scientific disagreements surrounding recent critical
habitat designations concerned whether the area chosen as critical
habitat is sufficiently defined, or whether the overall information
used to support the designation is adequate. In order to increase
the amount of information available on which to base critical
habitat designations, FWS and others, including the National
Research Council, have recommended delaying designations, until
recovery plans are developed.10
We also reported that FWS's critical habitat program faced a
serious crisis that extended well beyond the use of science in
making decisions. Key court decisions have invalidated certain
practices adopted by the agency, causing its critical habitat
program to become overburdened by litigation. Specifically, a key
court case in 1997 invalidated FWS's policy regarding when it was
prudent to designate critical habitat for listed species.11
Prior to the decision, FWS had designated critical habitat for only
about 10 percent of listed species. Since then, court orders and
settlement agreements have compelled FWS to designate critical
habitat in cases that the agency had previously determined doing so
was not prudent. In 2001, FWS lost another key lawsuit, challenging
the adequacy of the economic analyses the agency used to support its
critical habitat designations.12
Since this decision was issued, court orders and settlement
agreements have prompted FWS to re-issue some critical habitat
decisions. The Department of the Interior believes that the flood of
litigation over critical habitat designation is preventing FWS from
taking what it deems to be higher priority activities, such as
addressing the approximately 250 "candidate" species
waiting to go through the listing process (listing and critical
habitat activities are funded under the same line item in the
department's budget).
Because FWS's critical habitat program faces serious challenges,
including questions regarding the role of critical habitat in
species conservation, we recommended in our August 2003 report that
the Secretary of the Interior provide clear strategic direction for
the critical habitat program by clarifying the role of critical
habitat, and how and when it should be designated, and recommending
policy, regulatory, and/or legislative changes necessary to address
these issues. The Department did not respond to our request to
comment on a draft of this report, and has not formally indicated
whether or not it intends to implement the recommendation.
Conclusion
We recognize that passions run high when issues concern the
Endangered Species Act. The act, with its broad powers to restrict
the use of natural resources and impinge upon individual property
rights, coupled with its noble purpose to conserve the ecosystems
upon which threatened and endangered species depend, provides a
crucible for an ongoing national debate concerning the tradeoffs
between economic, social, and environmental values. As members of
the Subcommittee are well aware, there are no easy answers. However,
there is common ground among everyone concerned about the act, and
its impact on the nation and its resources. All can agree that
reducing the negative impacts of implementing the act - whether it
be the loss of credibility for the Services over debates about
"sound science," or the perceived injustice of limited
resource use due to needed species protections - while improving the
status of threatened and endangered species is a worthy goal. In our
testimony today, we have highlighted just a few examples where
federal agencies, working cooperatively and diligently, have
achieved just that. Unfortunately, we found too few examples of this
in our work. We believe more can be done. The task before us is to
identify how all concerned parties - federal, tribal, state, local,
and private - can work together to improve the status of threatened
and endangered species, while further reducing the negative impacts
of implementing the act. As we begin a new review of how species
recovery plans are being implemented - work that was requested by a
bipartisan group of Senators and Congressmen, including the Chairman
of this Subcommittee - we hope that the successful examples on
collaboration and the use of science we noted here are harbingers
for future cooperation and success.
Footnotes
1. Tennessee Valley Authority vs. Hill,
437 U.S. 153 (1978).
2. Legislation, passed in 1979, allowed for
completion of the Tellico Dam.
3. For a more comprehensive assessment of the
status of the nation's freshwater supply see U.S. General Accounting
Office, Freshwater Supply: States' Views of How Federal Agencies
Could Help Them Meet the Challenges of Expected Shortages,
GAO-03-514 (Washington, DC: July 9, 2003).
4. For a fuller account of this controversy
and efforts to resolve it, see U.S. General Accounting Office, Ecosystem
Planning: Northwest Forest and Interior Columbia River Basin Plans
Demonstrate Improvements in Land-Use Planning, GAO/RCED-99-64
(Washington, DC: May 26, 1999).
5. U.S. General Accounting Office, Military
Training: DOD Lacks a Comprehensive Plan to Manage Encroachment on
Training Ranges, GAO-02-614 (Washington, DC: June 11, 2002). See
also: U.S. General Accounting Office, Military Training: DOD
Approach to Managing Encroachment on Training Ranges Still Evolving,
GAO-03-621T (Washington, DC: April 2, 2003); and U.S. General
Accounting Office, Military Training: DOD Needs a Comprehensive
Plan to Manage Encroachment on Training Ranges, GAO-02-727T
(Washington, D.C.: May 16, 2002).
6. U.S. General Accounting Office, Military
Training: Implementation Strategy Needed to Increase Interagency
Management for Endangered Species Affecting Training Ranges,
GAO-03-976 (Washington, DC: September 29, 2003).
7. U.S. General Accounting Office, Endangered
Species: More Federal Management Attention Is Needed to Improve the
Consultation Process, GAO-04-93 (Washington, DC: Mar. 19, 2004).
See also: U.S. General Accounting Office, Endangered Species:
Despite Consultation Improvements Efforts in the Pacific Northwest,
Concerns Persist about the Process, GAO-03-949T (Washington, DC:
June 25, 2003).
8. U.S. General Accounting Office, Endangered
Species: Research Strategy and Long-Term Monitoring Needed for the
Mojave Desert Tortoise Recovery Program, GAO-03-23 (Washington,
DC: Dec. 9, 2002).
9. U.S. General Accounting Office, Endangered
Species: Fish and Wildlife Service Uses Best Available Science to
Make Listing Decisions, but Additional Guidance Needed for Critical
Habitat Designations, GAO-03-803 (Washington, DC: Aug. 29,
2003).
10. National Research Council, Science and
the Endangered Species Act (Washington DC: National Academy
Press, 1995) pp. 71-93.
11. Natural Resources Defense Council vs.
United States Department of the Interior, 113 F.3d 1121 (9th
Cir. 1997).
12. New Mexico Cattle Growers vs. United
States Fish and Wildlife Service, 248 F.3d 1277 (10th Cir.
2001).
Appendix I: GAO Reports Concerning the
Endangered Species Act
Endangered Species: Fish and Wildlife Service Generally
Focuses Recovery Funding On High-Priority Species, but Needs to
Periodically Assess Its Funding Decisions. GAO-05-211.
Washington, DC: April, 6, 2005.
Protected Species: International Convention and U.S. Laws
Protect Wildlife Differently. GAO-04-964. Washington, DC:
September 15, 2004.
Endangered Species: Federal Agencies Have Worked to Improve
the Consultation Process, but More Management Attention Is Needed.
GAO-04-93. Washington, DC: March 19, 2004.
Military Training: Implementation Strategy Needed to Increase
Interagency Management for Endangered Species Affecting Training
Ranges. GAO-03-976. Washington, DC: September 29, 2003.
Endangered Species: Fish and Wildlife Service Uses Best
Available Science to Make Listing Decisions, but Additional Guidance
Needed for Critical Habitat Designations. GAO-03-803.
Washington, DC: August 29, 2003.
Endangered Species: Despite Consultation Improvement Efforts
in the Pacific Northwest, Concerns Persist about the Process.
GAO-03-949T. Washington, DC: June 25, 2003
International Environment: U.S. Actions to Fulfill Commitments
Under Five Key Agreements. GAO-03-249. Washington, DC: January
29, 2003.
Endangered Species: Research Strategy and Long-Term Monitoring
Needed for the Mojave Desert Tortoise Recovery Program.
GAO-03-23. Washington, DC: December 9, 2002.
Columbia River Basin Salmon and Steelhead: Federal Agencies'
Recovery Responsibilities, Expenditures and Actions. GAO-02-612.
Washington, DC: July 26, 2002.
International Environment: U.S. Actions to Fulfill Commitments
Under Five Key Agreements. GAO-02-960T. Washington, DC: July 24,
2002.
Endangered Species Program: Information on How Funds Are
Allocated and What Activities Are Emphasized. GAO-02-581.
Washington, DC: June 25, 2002.
Canada Lynx Survey: Unauthorized Hair Samples Submitted for
Analysis. GAO-02-496T. Washington, DC: March 6, 2002.
Unauthorized Hair Samples Submitted for Analysis.
GAO-02-488R. Washington, DC: March 6, 2002.
Accidental Contamination of Samples Used in Canadian Lynx
Study Rendered the Study's Preliminary Conclusion Invalid.
GAO-01-1018R. Washington, DC: August 14, 2001.
Endangered Species Act: Fee-Based Mitigation Arrangements.
GAO-01-287R. Washington, DC: February 15, 2001.
Fish and Wildlife Service: Challenges to Managing the
Carlsbad, California, Field Office's Endangered Species Workload.
GAO-01-203. Washington, DC: January 31, 2001.
Fish and Wildlife Service: Weaknesses in the Management of the
Endangered Species Program Workload at the Carlsbad, California,
Field Office. T-RCED-00-293. Washington, DC: September 14, 2000.
Endangered Species: Caribou Recovery Program Has Achieved
Modest Gains. RCED-99-102. Washington, DC: May 13, 1999.
Department of Commerce, National Oceanic and Atmospheric
Administration: Endangered and Threatened Species; Threatened Status
for Two Chinook Salmon Evolutionarily Significant Units (ESUs) in
California. OGC-00-5. Washington, DC: October 15, 1999.
Department of Commerce, National Oceanic and Atmospheric
Administration: Endangered and Threatened Species of Salmonids.
OGC-99-38. Washington, DC: April 7, 1999.
Estimated Costs to Recover Protected Species. RCED-96-34R.
Washington, DC: December 21, 1995.
Reports Related to the Endangered Species Act
Military Training: DOD Approach to Managing Encroachment on
Training Ranges Still Evolving. GAO-03-621T. Washington, DC:
April 2, 2003.
Transboundary Species: Potential Impact to Species.
GAO-03-211R. Washington, DC: October 31, 2002.
Military Training: DOD Lacks a Comprehensive Plan to Manage
Encroachment on Training Ranges. GAO-02-614. Washington, DC:
June 11, 2002.
Military Training: DOD Needs a Comprehensive Plan to Manage
Encroachment on Training Ranges. GAO-02-727T. Washington, DC:
May 16, 2002.
Consequences of the Ruling by the 11th Circuit Court of
Appeals on Forest Management Projects. GAO-01-51R. Washington,
DC: November 30, 2000.
Timber Management: Forest Service Has Considerable Liability
for Suspended or Canceled Timber Sales Contracts. GAO-01-184R.
Washington, DC: November 29, 2000.
Army Corps of Engineers: An Assessment of the Draft
Environmental Impact Statement of the Lower Snake River Dams.
RCED-00-186. Washington, DC: July 24, 2000.
National Fish Hatcheries: Authority Needed to Better Align
Operations With Priorities. RCED-00-151. Washington, DC: June
14, 2000.
Fish and Wildlife Service: Agency Needs to Inform Congress of
Future Costs Associated With Land Acquisitions. RCED-00-52.
Washington, DC: February 15, 2000.
Fish and Wildlife Service: Management and Oversight of the
Federal Aid Program Needs Attention. T-RCED-99-259. Washington,
DC: July 20, 1999.
International Environment: Literature on the Effectiveness of
International Environmental Agreements. RCED-99-148. Washington,
DC: May 1, 1999.
Ecosystem Planning: Northwest Forest and Interior Columbia
River Basin Plans Demonstrate Improvements in Land-Use Planning.
RCED-99-64. Washington, DC: May 26, 1999.
Forest Service: Distribution of Timber Sales Receipts, Fiscal
Years 1995 Through 1997. RCED-99-24. Washington, DC: November
12, 1998.
Water Resources: Corps of Engineers' Actions to Assist Salmon
in the Columbia River Basin. RCED-98-100. Washington, DC: April
27, 1998. Federal Land Management: Estimates of Value and Economic
Effects of Canceled and Suspended Timber Sale Contracts in the
Pacific Northwest. RCED-98-18R. Washington, DC: October 6, 1997.
Forest Service: Unauthorized Use of the National Forest Fund.
RCED-97-216. Washington, DC: August 29, 1997.
Tongass National Forest: Lack of Accountability for Time and
Costs Has Delayed Forest Plan Revision. T-RCED-97-153.
Washington, DC: April 29, 1997.
Federal Power: Issues Related to the Divestiture of Federal
Hydropower Resources. RCED-97-48. Washington, DC: March 31,
1997.
Timber Management: Opportunities to Limit Future Liability for
Suspended or Canceled Timber Sale Contracts. RCED-97-14.
Washington, DC: October 31, 1996.
Bureau of Reclamation: An Assessment of the Environmental
Impact Statement on the Operations of the Glen Canyon Dam.
RCED-97-12. Washington, DC: October 2, 1996.
Northwest Power Planning Council: Greater Public Oversight of
Business Operations Would Enhance Accountability. RCED-96-226.
Washington, DC: August 30, 1996.
Animas-La Plata Project: Status and Legislative Framework.
RCED-96-1. Washington, DC: November 17, 1995. (360573)
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