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United States Government Accountability Office:

GAO:

Testimony:

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

For Release on Delivery, 9:30am, Thursday, May 19, 2005:

Endangered Species Act:

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

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

GAO-05-732T:

GAO Highlights:

Highlights of GAO-05-732T, a report to the Subcommittee on Fisheries, 
Wildlife and Water, Committee on Environment and Public Works, United 
States Senate: 

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. 

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. 

[See PDF for image]

[End of figure]

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.

[End of section]

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.[Footnote 1] The dam, which has since been 
completed,[Footnote 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.[Footnote 
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.[Footnote 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.[Footnote 5]

In September 2003,[Footnote 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.[Footnote 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 Web sites. For example, to address disagreements 
between the Services and other federal agencies, the Services issued 
guidance on how to assess the effects of right-of-way permits on 
protected species.

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

Because many concerns about the consultation process center on its 
timeliness, we recommended in our March 2004 report that FWS and NMFS 
work with other agencies to determine how best to capture data on the 
level of effort devoted to the consultation process and use this 
information to manage the process. We further recommended that the 
Secretaries of the Interior and Defense, the Under Secretary of 
Commerce for Oceans and Atmosphere, and the Chief of the Forest Service 
work together to resolve disagreements about when consultation is 
required and how detailed an analysis is necessary. Both FWS and NMFS 
have taken steps to improve information management of the consultation 
process, although it is unclear whether they have determined how to 
capture the level of effort devoted to the process--admittedly, a 
difficult task. While FWS and NMFS have continued to take steps to 
expand collaborative processes, in an update on their actions, the 
agencies stated that they did not believe that disagreements about the 
consultation process require the adoption of additional measures. They 
believe that the current training and guidance on consultation is 
sufficient to address questions about the process.

Using Scientific Information to Make Decisions:

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

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

In a December 2002 report,[Footnote 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.[Footnote 
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.[Footnote 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.[Footnote 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.[Footnote 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.

Appendix I: GAO Reports Concerning the Endangered Species Act:

Reports Addressing Implementation of the Endangered Species Act:

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

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

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

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

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

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

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

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

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

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

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

Canada Lynx Survey: Unauthorized Hair Samples Submitted for Analysis. 
GAO-02-496T. Washington, D.C.: March 6, 2002.

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

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

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

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

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

Endangered Species: Caribou Recovery Program Has Achieved Modest Gains. 
RCED-99-102. Washington, D.C.: May 13, 1999.

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

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

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

Reports Related to the Endangered Species Act:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(360573):

FOOTNOTES

[1] Tenn.Valley Auth. v. Hill, 437 U.S. 153 (1978).

[2] Legislation, passed in 1979, allowed for completion of the Tellico 
Dam.

[3] For a more comprehensive assessment of the status of the nation's 
freshwater supply see U.S. General Accounting Office, Freshwater 
Supply: States' Views of How Federal Agencies Could Help Them Meet the 
Challenges of Expected Shortages, GAO-03-514 (Washington, D.C.: July 9, 
2003).

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

[5] U. S. General Accounting Office, Military Training: DOD Lacks a 
Comprehensive Plan to Manage Encroachment on Training Ranges, GAO-02- 
614 (Washington, D.C.: June 11, 2002). See also U.S. General Accounting 
Office, Military Training: DOD Approach to Managing Encroachment on 
Training Ranges Still Evolving, GAO-03-621T (Washington, D.C.: April 2, 
2003); and U.S. General Accounting Office, Military Training: DOD Needs 
a Comprehensive Plan to Manage Encroachment on Training Ranges, GAO-02-
727T (Washington, D.C.: May 16, 2002).

[6] U.S. General Accounting Office, Military Training: Implementation 
Strategy Needed to Increase Interagency Management for Endangered 
Species Affecting Training Ranges, GAO-03-976 (Washington D.C.: 
September 29, 2003). 

[7] U.S. General Accounting Office, Endangered Species: More Federal 
Management Attention Is Needed to Improve the Consultation Process, GAO-
04-93 (Washington, D.C.: Mar. 19, 2004). See also U.S. General 

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

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

[9] U.S. General Accounting Office, Endangered Species: Fish and 
Wildlife Service Uses Best Available Science to Make Listing Decisions, 
but Additional Guidance Needed for Critical Habitat Designations, GAO- 
03-803 (Washington, D.C.: Aug. 29, 2003).

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

[11] Natural Resources Defense Council v. United States Department of 
the Interior, 113 F.3d 1121 (9TH Cir. 1997). 

[12] New Mexico Cattle Growers v. United States Fish and Wildlife 
Service, 248 F.3d 1277 (10TH Cir. 2001).