Endangered Species:

Federal Agencies Have Worked to Improve the Consultation Process, but More Management Attention Is Needed

GAO-04-93: Published: Mar 19, 2004. Publicly Released: Mar 29, 2004.

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To protect species that are at risk for extinction, the Endangered Species Act requires that federal agencies consult with the Fish and Wildlife Service or the National Marine Fisheries Service (the Services) to ensure that activities they authorize, fund, or conduct will not jeopardize endangered species or adversely modify their critical habitat. While federal agencies recognize that consultations benefit species, some are concerned about the time and resources consumed. In this report, GAO (1) assesses the federal data on consultations, (2) identifies steps by federal agencies to improve the process, and (3) discusses lingering concerns of federal and nonfederal parties about the process. GAO limited this study to consultations with the Forest Service, the U.S. Army Corps of Engineers, and the Bureaus of Land Management and Reclamation in Idaho, Montana, Oregon, and Washington.

The data available on consultations and their timeliness varied between the Services, but neither agency's databases captured all the elements needed to reliably determine the length of the process. Data from the National Marine Fisheries Service and the Fish and Wildlife Service's Portland field office (the Service's other five offices did not have comparably reliable data) show that about 40 and 30 percent of their nearly 1,220 and 330 consultations, respectively, exceeded established time frames (for consultations completed during fiscal years 2001 through 2003). However, these data do not include the significant time and effort sometimes spent discussing a project before consultation officially began. As a result, the Services cannot discern the level of effort devoted to Endangered Species Act consultations. Federal agencies have taken several steps to make the consultation process smoother and more efficient. Specifically, agencies took steps to facilitate collaboration, reduce workload, and improve the consistency and transparency of the process. While many officials praised these efforts, it is unclear whether the efforts are achieving their intended performance improvements, for they have not been comprehensively evaluated. Despite the improvement efforts, federal officials and nonfederal parties still have concerns about the consultation process. Workload has been a persistent concern for the Services and other agencies despite staff increases in recent years. Another major concern is that the Services and agencies sometimes disagree about the extent to which consultation is necessary. Some agency officials believe that the Services require more than is necessary under the Endangered Species Act, while officials at the Services contend that they are simply fulfilling their responsibilities. Nonfederal parties also have concerns. Parties seeking to conduct activities that are authorized by a federal agency are concerned about the time and resources expended to comply with the process. Environmental advocates are concerned that the process may not effectively protect species.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: The Forest Service has continued to devote significant effort to supporting the use of streamlining and believes that most disagreements have been resolved through the level 1 teams and the elevation process that they use with the Services. The Forest Service issued an amendment to its operations manual in September 2005 that clarified policies and procedures for how to handle emergency consultations, which had been a source of disagreement in the past. In addition, working with the Services, the Forest Service has expanded the use of programmatics, which assist agency staff in determining when consultation is necessary and the level of analysis needed to determine possible effects on species for certain types of projects. The Forest Service, working with the Services and BLM, developed web-based consultation training, which is required for all agency biologists and line officers who use the counterpart regulations for consultations for actions taken under the National Forest Plan so they understand when and how to apply these provisions to their projects.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to resolve disagreements about when consultation is needed and how detailed an analysis is necessary given a proposed activity's likely effects on species or habitat, and ensure that their agreements are disseminated quickly to all staff involved in consultations as well as to the public.

    Agency Affected: Department of Agriculture: Forest Service

  2. Status: Closed - Implemented

    Comments: The Forest Service believes that working through level 1 teams via streamlining clarifies what should be included in biological assessments. The Forest Service has taken steps to improve dissemination of guidance on biological assessment such as promoting a web-based training course that includes a module on what to include in an effects analysis. In addition, together with the Services and BLM, they created an interagency website, which contains related information, guidance, and sample biological assessments. The Forest Service has also developed an action plan to standardize evaluations of actions and effects determinations in biological assessments.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to refine guidance, as needed, on the type and specificity of documentation required in consultations.

    Agency Affected: Department of Agriculture: Forest Service

  3. Status: Closed - Implemented

    Comments: NMFS believes that working through level 1 teams via streamlining clarifies what should be included in biological assessments. NMFS, FWS, BLM, and the Forest Service issued a guidance document to clarify the specificity needed in biological assessments, including information to facilitate and standardize evaluations of actions and effects determinations for fish species within the Northwest Forest Plan area. NMFS also developed a consultation initiation template that offers further guidance for action agencies in development of a biological assessment. In addition, web-based and classroom training has been developed or refined to help assist action agencies in determining what information is needed to complete a biological assessment.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to refine guidance, as needed, on the type and specificity of documentation required in consultations.

    Agency Affected: Department of Commerce

  4. Status: Closed - Implemented

    Comments: The Corps issued revised technical compliance guidance regarding endangered species consultation that is intended to clarify the documentation required in consultations. Corps staff are directed to use the guidance issued by the Services for specific information that should be included in a biological assessment.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to refine guidance, as needed, on the type and specificity of documentation required in consultations.

    Agency Affected: Department of Defense

  5. Status: Closed - Implemented

    Comments: Interior believes that working through level 1 teams via streamlining clarifies what should be included in biological assessments. NMFS, FWS, BLM, and the Forest Service issued a guidance document to clarify the specificity needed in biological assessments, including information to facilitate and standardize evaluations of actions and effects determinations for fish species within the Northwest Forest Plan area. In addition, web-based and classroom training has been developed or refined to help assist action agencies in determining what information is needed to complete a biological assessment.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to refine guidance, as needed, on the type and specificity of documentation required in consultations.

    Agency Affected: Department of the Interior

  6. Status: Closed - Implemented

    Comments: The Forest Service, working with the other agencies, has participated in various reviews of consultation improvement efforts. For example, a FWS/NMFS analysis of projects done under the counterpart regulations found that a significant percent of projects evaluated did not meet the documentation criteria for describing the project area, the project, the species affected, and the likely effects. The review also found some projects that went forward under the guise of the counterpart regulations that should not have. Even though the results of this review were not issued publicly until January 2008, the Forest Service has been taking steps to improve documentation for projects completed under the counterpart regulations. The agencies have also agreed to work on additional training on ensuring adequate documentation, although funding has not been provided for this to occur. Forest Service has also worked with the Services and BLM to review existing programmatics to improve them and to develop additional programmatics to reduce workload for other types of projects. In addition, Forest Service has provided funding to the Services to help develop design criteria for certain types of projects that affect specific species to help identify what factors are most important to avoiding jeopardy, achieving recovery, and reducing consultation effort. Forest Service officials believe the efficiency and effectiveness gains via streamlining are clear, and continue to support the effort. Forest Service officials believe this is one reason why the agency has not utilized their ability to conduct consultations on their own under the counterpart regulations for National Fire Plan actions as much as originally expected, because it is more effective to go through the collaborative streamlining process with the Services on their projects.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to evaluate the efficiency and effectiveness of efforts to improve the consultation process, such as programmatic consultations and streamlining, and use the evaluation results as a basis for future management actions.

    Agency Affected: Department of Agriculture: Forest Service

  7. Status: Closed - Implemented

    Comments: NMFS, working with the other agencies, has participated in various reviews of consultation improvement efforts. For example, a FWS/NMFS analysis of BLM and USFS projects done under the counterpart regulations found that a significant percent of projects did not meet the documentation criteria for describing the project area, the project, the species affected, and the likely effects. The review also found some projects that went forward under the guise of the counterpart regulations that should not have. Even though the results of this review were not issued publicly until January 2008, the agencies have been taking steps to improve documentation. The agencies have also agreed to work on additional training on ensuring adequate documentation, although funding has not been provided for this to occur. NMFS has also worked with the other agencies to review existing programmatics to improve them and to develop additional programmatics to reduce workload for other types of projects. For example, NMFS evaluated a programmatic covering a variety of Corps regulatory actions and, working with the Corps, revised the list of activities that it may authorize to ensure adequate oversight of actions taken under the programmatic and expanded its use to other areas in the Northwest. In addition, the Services have developed design criteria for certain types of projects that affect specific species to help identify what factors are most important to avoiding jeopardy, achieving recovery, and reducing consultation effort.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to evaluate the efficiency and effectiveness of efforts to improve the consultation process, such as programmatic consultations and streamlining, and use the evaluation results as a basis for future management actions.

    Agency Affected: Department of Commerce

  8. Status: Closed - Implemented

    Comments: Corps officials believe that programmatics ease workload and help with the predictability of consultation requirements, and continue to pursue development of programmatics with the Services. In addition, working with NMFS, the Corps revised the list of activities that it may authorize under an existing programmatic to ensure adequate oversight of actions taken under the programmatic, and expanded its use to other areas in the Northwest.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to evaluate the efficiency and effectiveness of efforts to improve the consultation process, such as programmatic consultations and streamlining, and use the evaluation results as a basis for future management actions.

    Agency Affected: Department of Defense

  9. Status: Closed - Implemented

    Comments: FWS, working with the other agencies, has participated in various reviews of consultation improvement efforts. For example, a FWS/NMFS analysis of BLM and USFS projects done under the counterpart regulations found that a significant percent of projects did not meet the documentation criteria for describing the project area, the project, the species affected, and the likely effects. The review also found some projects that went forward under the guise of the counterpart regulations that should not have. Even though the results of this review were not issued publicly until January 2008, the agencies have been taking steps to improve documentation. The agencies have also agreed to work on additional training on ensuring adequate documentation, although funding has not been provided for this to occur. In addition, the Services have developed design criteria for certain types of projects that affect specific species to help identify what factors are most important to avoiding jeopardy, achieving recovery, and reducing consultation effort. FWS has also worked with the Forest Service, NMFS, and BLM to review existing programmatics to improve them and to develop additional programmatics to reduce workload for other types of projects.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to evaluate the efficiency and effectiveness of efforts to improve the consultation process, such as programmatic consultations and streamlining, and use the evaluation results as a basis for future management actions.

    Agency Affected: Department of the Interior

  10. Status: Closed - Not Implemented

    Comments: The Fish and Wildlife Service (FWS) began tracking consultation-related information electronically for all its offices in 2007. Its system captures the date of initial consultation, but it does not include an assessment of the level of effort devoted to pre-consultation. FWS officials do not believe it is appropriate to count this entire time as pre-consultation because action agencies are frequently also complying with other federal, state, and local requirements during this period as well.

    Recommendation: The Secretary of the Interior and the Under Secretary of Commerce for Oceans and Atmosphere should direct the Directors of the Fish and Wildlife Service and the National Marine Fisheries Service to work together with the action agencies we reviewed (and others the Services may deem appropriate) to determine how best to capture the level of effort devoted to preconsultation in their data systems and ensure that such information is gathered, maintained, and used to manage the process effectively.

    Agency Affected: Department of the Interior

  11. Status: Closed - Not Implemented

    Comments: NMFS has continued to devote significant effort to supporting the use of streamlining and believes that most disagreements have been resolved through the level 1 teams and the elevation process that is used with FWS, BLM, and the Forest Service. In addition, working with these agencies, NMFS has expanded the use of programmatics, which assist agency staff in determining when consultation is necessary and the level of analysis needed to determine possible effects on species for certain types of projects. These agencies also developed web-based consultation training, which is required for all agency biologists and line officers who use the counterpart regulations for consultations for actions taken under the National Forest Plan so they understand when and how to apply these provisions to their projects, in addition to classroom-based general consultation training that is offered each year. However, NMFS officials recognize that there are still disagreements in the consultation process regarding the extent of federal discretion over water rights and the definition of environmental baseline, particularly in the case of ongoing operations. NMFS officials believe that additional policy and legal attention is needed to address these issues. Consultations involving these issues have resulted in litigation, and in some cases, there are conflicting or confusing court decisions, which make it difficult to determine how consultations should proceed.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to resolve disagreements about when consultation is needed and how detailed an analysis is necessary given a proposed activity's likely effects on species or habitat, and ensure that their agreements are disseminated quickly to all staff involved in consultations as well as to the public.

    Agency Affected: Department of Commerce

  12. Status: Closed - Not Implemented

    Comments: The Corps issued guidance for compliance with consultation requirements that includes, among other things, clarification on when consultation is needed and when disagreements on projects should be elevated. Corps officials believe that prior disagreements about the need to consult on beneficial actions have generally been resolved with increased experience with the consultation process. The Corps has also established a website with important ESA-related information and references to help staff going through the consultation process, and has participated in interagency working groups on the ESA. However, disagreements still exist with the Services over the definition of environmental baseline, particularly as it relates to ongoing operations.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to resolve disagreements about when consultation is needed and how detailed an analysis is necessary given a proposed activity's likely effects on species or habitat, and ensure that their agreements are disseminated quickly to all staff involved in consultations as well as to the public.

    Agency Affected: Department of Defense

  13. Status: Closed - Not Implemented

    Comments: Although the National Marine Fisheries Service (NMFS) originally indicated that it was committed to adding indicators to its consultation tracking system to reflect the level of effort devoted to pre-consultation, it has decided not to do so. NMFS officials explained that they felt that there was no standard way to collect the level of effort because of the highly variable nature of pre-consultation. In particular, as we noted in our report, NMFS officials said that it is difficult to discern how much work during pre-consultation should be attributed to the ESA because action agencies are often also complying with other federal, state, and local requirements during this time period. Also, officials said that the agency has limited resources to spend on the consultation process and they have decided not to use these resources to determine the level of effort devoted to pre-consultations.

    Recommendation: The Secretary of the Interior and the Under Secretary of Commerce for Oceans and Atmosphere should direct the Directors of the Fish and Wildlife Service and the National Marine Fisheries Service to work together with the action agencies we reviewed (and others the Services may deem appropriate) to determine how best to capture the level of effort devoted to preconsultation in their data systems and ensure that such information is gathered, maintained, and used to manage the process effectively.

    Agency Affected: Department of Commerce

  14. Status: Closed - Not Implemented

    Comments: FWS has continued to devote significant effort to supporting the use of streamlining and believes that most disagreements have been resolved through the level 1 teams and the elevation process that is used with FWS, BLM, and the Forest Service. In addition, working with NMFS, BLM, and the Forest Service, FWS has expanded the use of programmatics, which assist agency staff in determining when consultation is necessary and the level of analysis needed to determine possible effects on species for certain types of projects. Together, these agencies also developed web-based consultation training, which is required for all agency biologists and line officers who use the counterpart regulations for consultations for actions taken under the National Forest Plan so they understand when and how to apply these provisions to their projects, in addition to classroom-based general consultation training that is offered each year. However, FWS officials recognize that there are still disagreements in the consultation process regarding the extent of federal discretion over water rights and the definition of environmental baseline, particularly in the case of ongoing operations.

    Recommendation: The Secretaries of the Interior and Defense, he Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of the Forest Service should work together to resolve disagreements about when consultation is needed and how detailed an analysis is necessary given a proposed activity's likely effects on species or habitat, and ensure that their agreements are disseminated quickly to all staff involved in consultations as well as to the public.

    Agency Affected: Department of the Interior

 

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