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entitled 'Endangered Species: Fish and Wildlife Service Uses Best 
Available Science to Make Listing Decisions, but Additional Guidance 
Needed for Critical Habitat Designations' which was released on 
September 29, 2003.

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Report to Congressional Requesters:

August 2003:

ENDANGERED SPECIES:

Fish and Wildlife Service Uses Best Available Science to Make Listing 
Decisions, but Additional Guidance Needed for Critical Habitat 
Designations:

GAO-03-803:

GAO Highlights:

Highlights of GAO-03-803 a report to congressional requesters 

Why GAO Did This Study:

Recent concerns about the U.S. Fish and Wildlife Services (Service) 
endangered species listing and critical habitat decisions have focused 
on the role that sound science plays in the decision-making process
whether the Service bases its decisions on adequate scientific data 
and properly interprets those data. In this report, GAO assesses the 
extent to which (1) the Services policies and practices ensure that 
listing and critical habitat decisions are based on the best available 
science and (2) external reviewers support the scientific data and 
conclusions that the Service used to make those decisions. In 
addition, GAO highlights the nature and extent that litigation is 
affecting the Services ability to effectively manage its critical 
habitat program.

What GAO Found:

The Endangered Species Act requires the U.S. Fish and Wildlife Service 
to identify, or list, species that are at risk of extinction and 
provide for their protection. The act also generally requires the 
Service to designate critical habitathabitat essential to a species 
conservationfor each listed species. The Service must use the best 
available science when making listing and critical habitat decisions.

The Services policies and practices generally ensure that listing and 
critical habitat decisions are based on the best available science. 
The Service consults with experts and considers information from 
federal and state agencies, academia, other stakeholders, and the 
general public. Decisions are subject to external peer review and 
extensive internal review to help ensure that decisions are based on 
the best available science and conform to contemporary scientific 
principles.

External reviews indicate that the Services listing and critical 
habitat decisions generally have scientific support, but concerns over 
the adequacy of critical habitat determinations remain. Listing 
decisions are often characterized as straightforward, and experts, 
peer reviewers, and others generally support the science behind these 
decisions. Critical habitat designations, on the other hand, are more 
complex and often require additional scientific and nonscientific 
information. As a result, peer reviewers often expressed concern about 
the specific areas designated, while other experts expressed concerns 
about the adequacy of the data available to make designations.

The Services critical habitat program has been characterized by 
frequent litigation. Specifically, the Service has lost a series of 
legal challenges that will require significant resources for the next 
5 fiscal years to respond to court orders and settlement agreements 
for designating critical habitat. As a result, the Service is unable 
to focus resources on activities it believes provide more protection 
to species than designating critical habitat. While the Service 
recognizes that it has lost control of the program, it has yet to 
offer a remedy. Without taking proactive steps to clarify the role of critical habitat and how and when it should be designated, the Service will continue to have difficulty effectively managing the program.

What GAO Recommends:

Because the Services critical habitat program faces serious 
challenges, including potential legal challenges and questions 
regarding the role of critical habitat in species conservation, GAO is 
recommending that the Service provide clear strategic direction for 
the critical habitat program, in a specified time frame, by 
identifying the issues affecting the Services ability to effectively 
manage the program and recommending policy/guidance, regulatory, and/
or legislative changes necessary to address these issues.

www.gao.gov/cgi-bin/getrpt?GAO-03-803.

To view the full product, including the scope and methodology, click 
on the link above. For more information, contact Barry T. Hill at 
(202) 512-3841 or hillbt@gao.gov.

[End of section]

Contents:

Letter: 

Results in Brief: 

Background: 

Procedures Are in Place to Ensure That Listing and Critical Habitat 
Decisions Are Based on the Best Available Science: 

Peer Reviewers and Others Conclude that Most Listing Decisions Are 
Based on Best Available Science, but Concerns about Critical Habitat 
Decisions Remain: 

The Service Has Failed to Address Known Problems with the Critical 
Habitat Program: 

Conclusion: 

Recommendation for Executive Action: 

Agency Comments: 

Appendixes:

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Overview of The Endangered Species Act: 

Listing Species as Endangered or Threatened: 

Critical Habitat: 

Recovery Plans: 

Consultations with Federal Agencies: 

Habitat Conservation Plans: 

Appendix III: Peer Reviewers' Responses to Listing and Critical Habitat 
Decisions for Fiscal Years 1999 through 2002: 

Appendix IV: The Nature of Scientific Controversy Surrounding Listing 
and Critical Habitat Decisions: 

Listing: 

Critical Habitat: 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Staff Acknowledgments: 

Table: 

Table 1: Species Delisted on the Basis of New Information: 

Figures: 

Figure 1: Number of Domestic Species Listed as Threatened or Endangered, 
1981 through 2002: 

Figure 2: Number of Domestic Species with Critical Habitat, 1981 through 
2002: 

Figure 3: The Service's Process to List Species as Threatened or 
Endangered: 

Figure 4: Peer Review Response Rates for Listing and Critical Habitat 
Decisions, Fiscal Years 1999 through 2002: 

Figure 5: Canada lynx: 

Figure 6: California red-legged frog: 

Figure 7: Southwestern willow flycatcher: 

Letter August 29, 2003:

The Honorable Bob Goodlatte 
Chairman, Committee on Agriculture 
House of Representatives:

The Honorable Scott McInnis 
Chairman, Subcommittee on Forests and Forest Health 
Committee on Resources 
House of Representatives:

The Honorable Richard Pombo 
Chairman, Committee on Resources 
House of Representatives:

The Congress enacted the Endangered Species Act in 1973 to protect 
plant and animal species whose survival is in jeopardy. The U.S. Fish 
and Wildlife Service (Service) is responsible for implementing the act 
for freshwater and land species.[Footnote 1] For many years, the act, 
its implementation, and the Service have served as lightning rods in 
the ongoing national debate concerning the tradeoffs between economic, 
social, and environmental values. The act requires the Service to list 
as endangered any species facing extinction throughout all or a 
significant portion of its range and to list as threatened any species 
likely to become endangered in the foreseeable future. The Service must 
make decisions to list species solely on the basis of the best 
available scientific and commercial data, such as biological or trade 
data obtained from commercial publications. The act also generally 
requires the Service to designate critical habitat--habitat essential 
to a species' conservation--when listing a species; the loss of habitat 
is often the principal cause of species decline. For critical habitat 
decisions, the act again requires the Service to consider the best 
available scientific data, but also requires the Service to consider 
the economic impact and other relevant impacts of designating 
particular areas as critical habitat. The Service is also required to 
develop a plan to recover the listed species to the point that it is no 
longer threatened or endangered, an achievement marked by its removal, 
or delisting, from the list of threatened or endangered species.

Recent concerns about the Service's listing and critical habitat 
decisions have focused on the role that "sound science" plays in the 
decision-making process and whether the Service bases its decisions on 
adequate scientific data and properly interprets those data. Critics of 
the decisions warn that improper listing and critical habitat decisions 
may cause social and economic disruption and divert funding and 
attention away from other species truly facing extinction. In addition 
to concerns about its use of science, the Service is having difficulty 
managing the listing and critical habitat programs, in part because of 
extensive litigation. Currently, the Service is experiencing a 
significant backlog of decisions to list species and to designate 
critical habitat. The Service has identified more than 200 species that 
qualify for listing but for which the listing process has not yet begun 
because of resource limitations or higher-priority actions being taken 
for other species.

You asked us to assess the Service's consideration and use of science 
in its decisions to list species as threatened or endangered and to 
designate critical habitat. Specifically, we reviewed the extent to 
which (1) the Service's policies and practices ensure that listing and 
critical habitat decisions are based on the best available science and 
(2) outside reviewers support the scientific data and conclusions that 
the Service uses to make listing and critical habitat decisions. In 
addition, in performing our work, we identified certain factors that 
could continue to affect the Service's ability to effectively manage 
its critical habitat program. Our report highlights the nature and 
extent of those problems as well.

In meeting our objectives, we examined decision documents for the 101 
listing and critical habitat decisions that the Service issued during 
fiscal years 1999 through 2002. There were 64 listing decisions and 37 
critical habitat decisions covering 108 and 36 species, respectively. 
To evaluate the adequacy of the science used to support these 
decisions, we reviewed (1) the Service's policies, procedures, and 
practices for making listing and critical habitat decisions; (2) the 
responses of peer reviewers who commented on 79 listing and critical 
habitat actions; and (3) judicial decisions related to listing and 
critical habitat actions decided during fiscal years 1999 through 2002. 
We also interviewed staff at seven field and regional offices and at 
Service headquarters to help understand the Service's decision-making 
process. We interviewed individuals with academic, industry, and 
conservation organizations and the National Academy of Sciences to 
better understand why some of the Service's decisions are 
controversial. In this report, we define "science" as the collection 
and interpretation of biological information, such as identification of 
the species and its habitat needs. At no point in our review did we 
attempt to directly evaluate the scientific analysis on which the 
Service based its listing and critical habitat decisions. A more 
detailed description of our scope and methodology is presented in 
appendix I.

Results in Brief:

The Service's policies and practices generally ensure that listing and 
critical habitat decisions are based on the best available science. In 
making listing and critical habitat decisions, the Service consults 
with experts both inside and outside the federal government and 
considers studies or other data from federal and state agencies, other 
stakeholders, and the general public. Both proposed decisions and final 
decisions are subject to internal review at field, regional, and 
headquarters offices to help ensure that the professional judgment is 
sound and conforms to contemporary scientific theories and principles. 
In addition, the Service also has a policy to ask at least three 
independent scientific experts in a relevant field to "peer review" 
proposed decisions to list species or designate critical habitat to 
help ensure that decisions are based on the best available science.

Reviews by outside experts and others indicate that the Service's 
listing and critical habitat decisions are generally based on the best 
available science, but that there are concerns over the adequacy of the 
data used to support critical habitat designations. For listing 
decisions, peer reviewers overwhelmingly supported the science behind 
the decisions the Service issued between fiscal years 1999 and 2002. 
Additionally, during that same time period, the courts overturned few 
listing decisions because the Service relied on faulty or inadequate 
science. Further evidence that listing decisions are scientifically 
sound is provided by the fact that only 10 of the more than 1,200 
domestic listed species have been delisted after new scientific 
information surfaced that indicated the original listing was not 
warranted. In contrast, while external reviews indicate that most 
critical habitat decisions are based on the best available science, 
experts and others we spoke to expressed concerns over the adequacy of 
the information available to support the designations. While peer 
reviewers generally agreed with the science supporting the Service's 
critical habitat decisions, they often also provided suggestions for 
modifying the designations. In three decisions, peer reviewers 
disagreed with the Service's designation of critical habitat, stating 
that the Service had insufficient information to make the decision. 
Although the Service has frequently lost legal challenges over its 
critical habitat designations, courts have overturned few of the 
Service's critical habitat decisions as not supported by the best 
available science. Instead, most of the challenges dealt with 
nonscience issues, such as the Service's failure to designate habitat 
for a listed species.

Key court decisions have invalidated certain practices adopted by the 
Service, causing its critical habitat program to be dominated by 
litigation. In 1997, the Service lost a lawsuit challenging its 
practice of not designating critical habitat for many species; the 
Service did not designate critical habitat because it believes it 
conveys little additional protection to listed species. This suit led 
to numerous other suits, resulting in court orders directing the 
Service to designate critical habitat for many previously listed 
species. In 1999, the Service announced that its system for designating 
critical habitat was not working and that critical habitat litigation 
and related court orders were consuming much of the program's 
resources. To remedy the situation, the Service announced its intention 
to develop guidance and/or regulations to clarify the role of critical 
habitat in endangered species conservation and to streamline the 
process used to designate critical habitat. However, such guidance and 
clarification were never issued, and the Service continues to follow 
the same system that it recognizes is unworkable. In 2001, the Service 
lost another lawsuit, which challenged the adequacy of the economic 
analyses the Service used to support its critical habitat designations. 
These two lawsuits, and subsequent legal challenges based on similar 
issues, have come to dominate the Service's critical habitat program. 
In 2002, we reported on problems facing the critical habitat program 
and recommended that the Service expedite its efforts to issue guidance 
for the program; however, the Service has yet to do so.[Footnote 2] If 
the Service does not take proactive steps to clarify the role of 
critical habitat and how and when it should be designated, we believe 
it will continue to have difficulty effectively managing the program. 
Therefore, we recommend that the Service--through guidance, 
regulations, or other policy tools--provide clear strategic direction 
for the critical habitat program in order to provide the greatest 
conservation benefit to threatened and endangered species in the most 
cost-effective manner. The Department of the Interior did not respond 
to our request to comment on the recommendation.

Background:

The Congress enacted the Endangered Species Act in 1973 to conserve 
threatened or endangered plant and animal species. The act requires the 
Service to base its determination of whether a species is endangered or 
threatened solely on the basis of the best available scientific and 
commercial data.[Footnote 3] Available data includes biological or 
trade data obtained from scientific or commercial publications, 
administrative reports, maps or other graphic materials, or experts on 
the subject. Using the best available data, the act requires the 
Service to determine whether a species should be listed as threatened 
or endangered by analyzing its status based on the following five 
factors:[Footnote 4]

* present or threatened destruction, modification, or curtailment of a 
species habitat or range;

* overuse for commercial, recreational, scientific, or educational 
purposes;

* disease or predation;

* inadequacy of existing regulatory mechanisms; or:

* other natural or manmade factors affecting a species' continued 
existence.

As of June 2003, the Service had listed 1,263 species in the United 
States as threatened or endangered. This total included 517 animal 
species and 746 plant species.[Footnote 5] The number of species listed 
per year has varied considerably, as shown in figure 1. There are also 
558 foreign species listed as threatened or endangered.

Figure 1: Number of Domestic Species Listed as Threatened or 
Endangered, 1981 through 2002:

[See PDF for image]

Note: There have been 25 domestic species delisted since the inception 
of the act. These species are not included in the figure. In addition, 
16 species have been reclassified from endangered to threatened.

[End of figure]

As of June 2003, the Service was in the process of listing 36 more 
species and had identified 251 species as candidates for listing. The 
act also requires the Service to designate critical habitat for listed 
species. Critical habitat is a specific geographic area that is 
essential for the conservation of a threatened or endangered species 
and that may require special management and protection.[Footnote 6] As 
of June 2003, 417 domestic species had critical habitat designated. The 
number of critical habitat designations per year has varied 
considerably, as shown in figure 2.

Figure 2: Number of Domestic Species with Critical Habitat, 1981 
through 2002:

[See PDF for image]

Note: Some species may have had critical habitat designated more than 
one time; the graph includes only the first time that critical habitat 
was designated.

[End of figure]

The Endangered Species Act has provisions to protect and recover 
species once they are listed. The act prohibits the "taking" of listed 
animal species by any party--federal or nonfederal.[Footnote 7] 
"Taking" or "take" means to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect a listed species.[Footnote 8] Also, 
federal agencies must ensure that their activities, or any activities 
they fund, permit, or license, do not jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of its critical habitat. The act establishes a process for 
federal agencies to consult with the Service about their activities 
that may affect listed species. In addition, the act requires that the 
Service develop a recovery plan to reverse the decline of each listed 
species and ensure its long-term survival. A recovery plan may include 
a variety of methods and procedures to recover listed species, such as 
protective measures to prevent extinction or further decline, habitat 
acquisition and restoration, and other on-the-ground activities for 
managing and monitoring endangered and threatened species. To date, 
seven domestic species have been delisted due to recovery. (App. II 
provides additional information on the process used by the Service to 
protect listed species.):

Procedures Are in Place to Ensure That Listing and Critical Habitat 
Decisions Are Based on the Best Available Science:

The Endangered Species Act requires the Service to use the best 
available scientific data when deciding to list species or designate 
critical habitat. The "best available" standard does not obligate the 
Service to conduct studies to obtain missing data, but it prohibits the 
Service from ignoring available data. The Service goes through an 
extensive series of procedural steps that involves public participation 
and review by outside experts to help ensure that it collects relevant 
data and uses it appropriately. Although the process alone is not 
sufficient to ensure the accuracy of the Service's listing and critical 
habitat decisions, it generally ensures that the Service is using and 
considering the "best available" data.

Internal Decision-Making Process Helps Ensure That the Service Uses 
Best Available Science in Making Decisions:

The Service follows a rigorous process in listing a species as 
endangered or threatened, designating critical habitat, or removing a 
species from the endangered and threatened list. The Service's process 
includes following a rulemaking procedure, established by the 
Endangered Species Act, supported by additional procedures under 
Service regulations and guidance. The complete text of the proposed and 
final rules and related information (including a summary of data on 
which the proposal is based and a summary of comments received on the 
proposal) are published in the Federal Register, the government's 
official publication for making public the regulations and legal 
notices issued by federal agencies. The act and regulations require the 
Service to provide an opportunity for public participation in the 
rulemaking process, notify affected states and local jurisdictions and 
invite comments from them and other interested parties, notify 
newspapers and professional journals, and hold at least one public 
hearing, if requested, within 45 days of publishing the proposal. 
Additionally, Service procedures provide for listing and critical 
habitat decisions to be reviewed internally to help ensure that the 
professional judgment that the Service's scientists exercise when 
weighing and interpreting the collected data is sound and conforms to 
contemporary scientific theories and principles.[Footnote 9]

The process to list a species begins either through a petition from an 
individual, group, or state agency or through the initiative of the 
Service (see fig. 3).[Footnote 10]

Figure 3: The Service's Process to List Species as Threatened or 
Endangered:

[See PDF for image]

[End of figure]

When a petition is filed to list a species, the Service provides a copy 
of the petition to, and requests information from, appropriate state 
agencies and affected tribal governments. The Service uses the 
information that it receives from these parties (or that which is 
contained in the petition or otherwise readily available) to make its 
initial determination as to whether a species may be threatened or 
endangered, and if so, to proceed with data gathering and 
analysis.[Footnote 11] The act requires the Service to make this 
determination generally within 90 days of receiving the petition. If 
the Service determines that it should proceed, it conducts a "status 
review"--a review of all the available information on a species--to 
determine whether the species warrants protection under the act. To 
conduct the status review, the Service solicits comments and requests 
information from the general public (by publishing a notice in the 
Federal Register) and contacts affected local, state, tribal and 
federal agencies; interested conservation or industry groups; and 
scientific organizations or professionals interested in and/or 
knowledgeable about the species. The Service may also fund field 
surveys, museum research, and literature searches in order to compile 
available information. Service scientists who conduct status reviews 
told us that they often work closely with experts from other government 
agencies, academia, and elsewhere to help gather and interpret 
information. In some instances, the Service initiates a review of a 
species without a petition, for which it conducts a candidate 
assessment--similar to a status review--to identify available 
information.

Within 12 months of receiving a petition for which the Service 
proceeded with a status review, the Service must determine whether the 
species' listing is warranted. If a Service field office makes an 
initial determination that the listing is warranted, it prepares a 
proposed rule for publication in the Federal Register. Before the 
proposed rule is published, a draft receives considerable internal 
review by officials in the Service's field, regional, and headquarters 
offices.[Footnote 12] The review by officials in the field and regional 
offices helps ensure the exercise of sound professional judgment. The 
field office that is responsible for the listing provides the 
appropriate regional office with the draft of the proposed rule and all 
supporting scientific information. Officials in the regional office 
review the proposed rule to ensure that scientific information supports 
the proposed rule. Regions are responsible for ensuring that the 
proposed rule is scientifically accurate and biologically and legally 
sound. Regional officials told us that the review is an opportunity for 
the region to identify information gaps and issues concerning how the 
information supports the conclusions. At the Service's headquarters, 
the draft proposed rule is reviewed to ensure that it is consistent 
with other listing rules and complies with national policies. Either 
the Director of the Fish and Wildlife Service or the Assistant 
Secretary for Fish and Wildlife and Parks approves all proposed rules 
before publication.

Upon publication, the public has at least 60 days to provide comments 
on a proposed rule. The Service may extend the public comment period 
and/or reopen it at a later date. Service officials told us that the 
public comment period is an opportunity to reach biologists, 
scientists, academicians, and advocacy groups that the Service may not 
have contacted previously. The Service also holds public hearings, if 
requested. At the end of the public comment period, the Service 
reevaluates all the data, including the comments received since the 
proposal was published, to determine whether the listing is still 
warranted. If not, the proposal will be withdrawn. The Service must 
publish its final decision within 12 months of its proposal. In cases 
when experts disagree on the accuracy or sufficiency of the available 
data concerning the proposed listing, or the release of additional 
information that may affect the outcome of the petition is expected, 
the proposal may be extended 6 months beyond the normal 12-month time 
frame. In the event that the listing is warranted, the Service prepares 
a final rule, incorporating appropriate changes based on the 
information received during the comment period. Final rules are subject 
to the same internal review process as proposed rules and are approved 
by either the Director of the Fish and Wildlife Service or Assistant 
Secretary for Fish and Wildlife and Parks before being published.

The procedures for designating critical habitat are similar to those 
for listing a species. However, in designating critical habitat, the 
Service must also take into consideration the economic and other 
impacts of specifying any particular area as critical habitat. The 
Assistant Secretary of Fish and Wildlife and Parks approves critical 
habitat designations.

Officials at all levels of the agency demonstrated familiarity with the 
requirements of the review process and stated that they believe it 
provides the general guidelines necessary to ensure the best available 
data are identified and properly interpreted. Field office officials 
noted that proposed and final rules are challenged internally to ensure 
they can withstand public scrutiny and that while rulemakings are 
initiated at the field level, extensive review ensures that the entire 
agency is on board before anything is finalized. Scientists and other 
agency personnel told us that they use the process to test the validity 
of their listing and critical habitat decisions. Some officials 
emphasized the crucial role that the experience and expertise of the 
Service's scientists play in ensuring that listing and critical habitat 
decisions are based on the best available science.

Outside Experts Review Proposed Rules:

Peer review is considered to be the most reliable tool to ensure that 
quality science will prevail over social, economic, and political 
considerations in the development of a particular product or decision. 
Peer review--a routine component of science--can substantially enhance 
the quality and credibility of the scientific or technical basis for a 
decision. For regulatory decisions, peer review can provide for 
independent and expert analysis to complement the adversarial and 
political nature of rulemaking.

While many federal agencies were already using peer review, the Office 
of Management and Budget (OMB) issued guidance in 2002 recommending 
that federal agencies utilize formal, independent external peer review 
(peer review by individuals outside of the agency) to ensure the 
quality of data and analytic results disseminated to the 
public.[Footnote 13] It also recommended that peer reviewers be 
selected primarily on the basis of their technical expertise, that they 
disclose any source of bias (either prior technical or policy positions 
or sources of personal and institutional funding from which they may 
benefit), and that peer review be conducted in an open and rigorous 
manner.[Footnote 14]

Federal agencies have adopted a variety of peer-review practices, 
depending on the nature of the product or decision under review. As we 
reported in 1999, peer-review practices at federal agencies vary 
according to their intended use and form.[Footnote 15] According to 
OMB's 2002 guidance, agencies should tailor the rigor and intensity of 
peer review in accordance with the significance of risk or management 
implications of the information involved. The form of peer review can 
range from informal consultations with agency colleagues not involved 
in the earlier stages of the project to formal external advisory 
panels, which can span several years and cost thousands of dollars. In 
addition, for each different form of peer review, there are multiple 
variations--the amount of time allocated for the review, the number of 
reviewers, and whether the review occurs internally or externally--all 
of which affect the overall time and cost required to conduct a review.

In addition to its internal decision-making processes, the Service uses 
external peer review of listing and critical habitat decisions to 
ensure that the best biological and commercial information is being 
considered. The Service's peer-review policy requires officials to 
solicit the opinions of three appropriate and independent experts 
regarding scientific data and assumptions supporting listing and 
critical habitat decisions.[Footnote 16] Peer reviewers are selected at 
the discretion of the field office scientists responsible for 
developing listing and critical habitat decisions. The reviewers, who 
may come from the academic and scientific community, tribal and other 
Native American groups, federal and state agencies, and/or the private 
sector, are selected on the basis of their independence and expertise 
on the species being considered, similar species, the species' habitat, 
or other relevant subject matter. The Service's scientists may ask peer 
reviewers to critique specific aspects of the proposed rule, such as 
the Service's interpretation of a particular study, or they may ask 
reviewers to comment on the rule in its entirety.

The Service's peer-review policy generally appears to be appropriate 
for the circumstances in which it is used. Although other agencies may 
use more rigorous forms of peer review, such as convening a peer-review 
panel or a science advisory board, the Service's peer-review process 
allows the Service to make listing and critical habitat decisions under 
relatively short time frames (the Service usually asks peer reviewers 
to perform their review during the public comment period--normally 60 
days--while a peer-review panel may span several months or years). 
However, to help ensure the identification of complete and current 
information on a species and its habitat, the Service may contact 
experts during the status review. In addition, any decisions that are 
issued as "final" rules can later be reconsidered as circumstances 
warrant or new information becomes available. In fact, a species can be 
delisted if new information surfaces indicating that the original 
decision to list was not warranted.

One limitation that the Service faces in getting an independent review 
is the scarcity of experts on a particular species. For example, in 
some instances, the most qualified experts to peer review a decision 
may have authored some of the studies that the Service used to support 
its decision, forcing the Service to balance expertise with 
independence. However, according to a National Academy of Sciences 
report that reviewed the Environmental Protection Agency's use of peer 
review for similar actions, to choose an individual to peer review who 
is both an expert and independent might be impossible, or might not 
promote the best possible review.[Footnote 17] In such cases, an 
appropriate balance of views may be sought to ensure that different 
interpretations on the scientific and technical merit of a decision are 
taken into consideration. Such cases should, however, be fully 
disclosed. Other organizations have developed procedures for assessing 
the independence of peer reviewers, ranging from simply requiring peer 
reviewers to disclose any potential bias, to using third parties to 
identify peer reviewers based, in part, on their independence. Service 
officials told us that they have not adopted a formal procedure to 
assess peer reviewers' independence, and the Service does not publicly 
disclose in the Federal Register potential conflicts or prior 
involvement by its peer reviewers when the Service publishes the final 
rule.

The Service generally complied with its peer-review policy of 
soliciting peer review from at least three reviewers during fiscal 
years 1999 through 2002. During this time, the Service solicited three 
or more peer reviewers in 94 out of the 100 listing and critical 
habitat decisions it made.[Footnote 18] In three instances the Service 
solicited fewer than three peer reviewers, and in three other instances 
documentation was unavailable to indicate how many reviewers were 
asked.[Footnote 19] (See app. III for a complete list of the decisions 
with the number of peer reviewers solicited, the number that responded, 
and how they responded.):

While the Service generally complied with its policy to seek peer 
reviewers, reviewers often did not respond. As shown in figure 4, the 
Service received responses from three or more peer reviewers in 38 
decisions for which it solicited at least three peer reviewers. It 
received either one or two responses in 41 decisions, and no responses 
in 15 decisions.

Figure 4: Peer Review Response Rates for Listing and Critical Habitat 
Decisions, Fiscal Years 1999 through 2002:

[See PDF for image]

Note: Response rates are for the 94 decisions for which the Service 
solicited at least 3 peer reviewers. Overall, the Service asked 422 
experts to peer review the 100 listing and critical habitat decisions 
made during fiscal years 1999 through 2002 and received 212 responses 
(50 percent response rate).

[End of figure]

Field office scientists, as well as an expert on peer review, reported 
a variety of reasons for the limited number of responses, including (1) 
the potential peer reviewers had busy schedules and felt constrained by 
the short time frames allotted to conduct the review, and (2) the 
potential reviewers were unwilling to conduct peer review either 
because they did not want to become involved in a controversial 
decision or because they did not want to work without compensation. In 
addition, the field office scientists reported that potential peer 
reviewers may not be inclined to conduct peer review because they found 
nothing to criticize or had already provided comments at an earlier 
stage of the decision, such as during the status review.

Recognizing the importance of peer review, some regional and field 
offices have taken steps to increase the number of respondents. For 
example, some field offices contact potential peer reviewers in 
advance, rather than initiating contact just before the decision is 
open for peer review; others maintain communication with the peer 
reviewers throughout the process. For example, the Pacific Islands 
field office in Honolulu, Hawaii, has assigned an administrative staff 
person to initiate phone calls and E-mails to help remind and encourage 
peer reviewers to respond. This staff person also monitors the 
implementation of the peer-review policy and tracks results. In order 
to increase the likelihood that at least three peer reviewers respond 
to a request, some field offices request peer reviews from more than 
three individuals. Field office scientists suggested other ways to 
increase the response rate, such as providing monetary compensation, 
using a third party to select and coordinate peer review, narrowing the 
scope of the review, and providing more time for review.

Peer Reviewers and Others Conclude that Most Listing Decisions Are 
Based on Best Available Science, but Concerns about Critical Habitat 
Decisions Remain:

External reviews of listing and critical habitat decisions indicate 
that most decisions are generally scientifically supported, but 
concerns about the adequacy of critical habitat determinations remain. 
Listing decisions are often characterized as straightforward, requiring 
the Service to answer only a "yes or no" question as to whether a 
species warrants inclusion on the threatened or endangered list. 
Critical habitat designations, on the other hand, are more complex and 
often require further information on the species' habitat requirements 
and other management considerations. Peer reviewers often expressed 
concerns about the specific areas designated as critical habitat, while 
other experts expressed concerns about the adequacy of the information 
available to make the designation.

Little Scientific Disagreement Surrounds Listing Decisions:

Experts and others have found most of the Service's listing decisions 
to be scientifically supported. Experts knowledgeable about the 
Endangered Species Act and recent studies assessing the Service's use 
of science in making listing decisions concur that the Service's 
listing decisions are generally supported. Similarly, experts not 
affiliated with the Service have peer-reviewed proposals to list 
species and overwhelmingly supported the Service's decisions. The 
courts have overturned few listing decisions on the basis of inadequate 
science, and the Service has delisted few species on the basis of new 
information that suggested that protection under the act was not 
originally warranted.

Experts and Others Generally Support Service Listing Decisions:

Experts, Service officials, and others knowledgeable about the 
Endangered Species Act largely agree that most listing decisions have 
been relatively straightforward and scientifically supported. Experts 
and others we spoke to generally agreed that most listed species 
probably deserved being listed under the current standard for best 
available scientific information. For example, several attorneys, who 
represent the regulated community in challenges to the Service's 
decisions, stated that, given the Service's short time frames and 
limited resources, the science used to support most listing decisions 
did not present a significant problem. However, these attorneys and 
others contend that the "best available data" standard does not provide 
enough certainty that a species is threatened or endangered and suggest 
that a more stringent standard should be developed. On the other hand, 
interested parties representing a diverse set of interests raised 
concerns that Service officials at the Headquarters level are 
succumbing to political pressures to not list species despite support 
from regional and field scientists who believe evidence shows that 
listing is warranted. Service scientists told us they believe many 
listed species have low populations and/or face clearly identified 
threats, indicating that the species are at risk. They said that many 
listing decisions have been made to protect species native to a 
specific area, with a narrow range, or for which substantial scientific 
information was already available or easy to collect. On the other 
hand, the scientists noted that collecting information becomes more 
difficult and costly when a wide-ranging species may be at risk. 
Additionally, several scientific disagreements regarding listing 
decisions have surfaced in recent years, mostly concerning whether the 
amount of information available at the time a decision is made suffices 
as a basis for a decision. (See app. IV for information on the nature 
of scientific controversy surrounding the Service's decisions to list 
species.) Finally, many of the experts we spoke with had concerns about 
the science used to support other aspects of the act, such as recovery 
actions or consultations with federal entities on proposed actions that 
could potentially harm a listed species.

Several studies have supported the Service's use of science in making 
listing decisions. The Ecological Society of America--a professional 
society of ecologists representing ecological researchers in more than 
60 countries--released a study on the use of science in achieving the 
goals of the act that concluded that the major problem with the listing 
process has been its slowness rather than the quality of the listing 
decisions.[Footnote 20] The National Research Council (NRC) reached 
similar conclusions in a 1995 report, finding that many of the 
conflicts and disagreements over the Endangered Species Act do not 
appear to be based on scientific issues.[Footnote 21] More recently, in 
2002, NRC reviewed the genetic evidence used to support one particular 
listing decision, the listing of the Gulf of Maine Atlantic salmon 
distinct population segment.[Footnote 22] It concluded that Maine 
salmon are genetically distinct from other salmon, supporting the 
Service's decision to list the species.

Peer Reviewers Overwhelmingly Support the Service's Use of Science in 
Making Listing Decisions:

The Service received 143 peer-review responses for 54 of the 63 listing 
decisions finalized between fiscal years 1999 and 2002 and no responses 
for the remaining 9 decisions (see app. III). In 48 of these decisions, 
reviewers providing comments unanimously agreed with the Service's 
scientific conclusions or otherwise indicated support for the decision 
to list the species. In two decisions, the Service reported that one of 
the peer reviewer's opinions was "neutral," and the rest of the 
opinions were supportive. In two other decisions, we were unable to 
determine the nature of one of the peer reviewer's response. Peer 
reviewers disagreed with the Service in the following two decisions:

* Alabama sturgeon. One of the five reviewers to provide comments on 
the proposal to list the Alabama sturgeon, a freshwater fish 
historically found throughout the Mobile River basin of Alabama and 
Mississippi, disagreed with the Service's proposed listing 
determination. While the reviewer did not directly respond to the 
Service's request for peer review, he did provide comments at one of 
the public hearings regarding the proposed rule. The reviewer argued 
that the Alabama sturgeon was not a valid species given the fish's 
morphological (i.e., physical appearance such as color pattern, shape, 
and scale patterns) and genetic evidence. The other four reviewers 
responding to the proposed rule supported the validity of the Alabama 
sturgeon as a species.

* Desert yellowhead. One of two reviewers who provided comments on the 
proposed rule to list the desert yellowhead (a flowering plant that 
occurs in Wyoming) agreed that the species was rare and in need of 
protection, but did not agree that listing the species under the act 
was the appropriate mechanism. The other reviewer supported listing the 
plant.

Courts Have Overturned Few Listing Decisions on the Basis of Inadequate 
Science:

The Service's actions and inactions under the act are frequently 
challenged in the courts. In hearing such challenges, courts must defer 
to agencies in judging actions, such as listing decisions, and must not 
substitute their judgment for an agency's, especially on technical 
matters.[Footnote 23] As a result, courts will uphold an agency 
decision when it is evident that the agency considered the relevant 
facts and articulated a rational connection between those facts and its 
decision.[Footnote 24] Partly because of the deference granted to the 
Service in making listing determinations, most litigation has not 
directly challenged the Service's use of science. Instead, according to 
an official from the Department of the Interior's Office of the 
Solicitor, most litigation revolves around definitional or procedural 
issues, such as the Service's failure to meet statutory time frames. 
The official said that litigants often challenge decisions on 
nonscientific aspects of the act because they feel this provides them 
with a stronger case. Thus, the fact that the courts have rarely ruled 
against the Service on the basis of inadequate science is not 
necessarily an affirmation that the Service used the best available 
science.

Based on a review of federal court cases decided during fiscal years 
1999 through 2002, we identified 17 cases in which a court issued an 
opinion related to the Service's listing decisions. The Service lost 11 
of these cases, mostly because it failed to take certain actions 
regarding decisions to list or not to list a species within the time 
allotted by the act. However, the courts overturned listing decisions 
on the basis of issues related to the use of scientific data in the 
following two cases:

* Sacramento splittail. In 2000, a federal court ruled that the 
decision to list the Sacramento splittail was not supported by the best 
scientific data available.[Footnote 25] The splittail is a large fish 
with a distinctive tail and is native to California's Central Valley. 
Regional water authorities challenged the listing of the splittail on 
scientific grounds, asserting, among other things, that the Service 
ignored an important study indicating resiliency and an increasing 
abundance of the splittail. The court rejected the Service's arguments 
that these data were not submitted in time to be considered and were 
irrelevant, and found there to be no indication that the Service 
considered substantial evidence that suggested that the splittail 
should not be listed. The court thus concluded that the Service had 
failed to consider all available data. The Service is in the process of 
reevaluating this listing rule.

* Westslope cutthroat trout. In 2002, a federal court ruled that the 
Service's decision not to list the Westslope cutthroat trout was not 
supported by the best scientific data available.[Footnote 26] The 
Westslope trout is one of 14 subspecies of cutthroat trout native to 
streams in the western United States. In its decision not to list the 
trout, the Service identified hybridization (the breeding with other 
species of trout) as one of the threats to the species, but included 
these hybrid fish in the population considered for listing. The court 
noted that if hybridization were a "threat" to the species, it would 
seem logical that hybrid fish should not be included in the population 
under consideration. After explaining that the identification of the 
existing population of the trout was vital to the ultimate listing 
determination, the court found that the record failed to offer a 
rationale for including hybrid stocks in the population that it 
considered for listing, and concluded that the Service had ignored 
existing scientific data for assessing the degree of hybridization that 
may be appropriate to include in the population. The court remanded the 
case to the Service for reconsideration.

The Service lost the following two cases because it failed to assess 
whether the species was imperiled throughout "a significant portion of 
its range."[Footnote 27]

* Flat-tailed horned lizard. In 2001, an environmental group 
successfully challenged the Service's decision not to list the flat-
tailed horned lizard, a small lizard found in desert lands in the 
southwestern United States.[Footnote 28] In reaching its decision, the 
Service concluded that regardless of the threats to the lizard on 
private lands, large populations of the lizard and areas of its habitat 
were already protected under a conservation agreement on public lands 
and that the species was sufficiently protected from further threats. 
The court found that the Service should have performed an analysis to 
determine whether the private lands constituted "a significant portion 
of [the lizard's] range" and, if so, whether the lizard was or would 
become extinct in that area. The court remanded the case to the Service 
for those determinations.

* Queen Charlotte goshawk. In 2002, an environmental group successfully 
challenged the Service's decision not to list the Queen Charlotte 
goshawk, a forest-dwelling bird of prey found throughout North 
America.[Footnote 29] In reaching its decision, the Service considered 
the goshawk's presence in southeast Alaska, the Queen Charlotte 
Islands, and Vancouver Island in Canada.[Footnote 30] The Service found 
that the goshawk was not threatened or endangered in southeast Alaska 
or the Queen Charlotte Islands, but the Service did not make a 
determination regarding the goshawk's status on Vancouver Island. The 
Service contended that the goshawk's status on Vancouver Island did not 
matter because that area did not represent a significant portion of the 
goshawk's range. The decision in this case upheld the Service's 
determination regarding southeast Alaska and the Queen Charlotte 
Islands, finding that the Service had properly used the best available 
science. However, the decision went on to conclude that Vancouver 
Island represented a significant portion of the goshawk's range and 
that the case should be remanded to the Service to determine whether 
the goshawk was threatened or endangered on Vancouver Island.

The Service Has Delisted Few Species on the Basis of New Scientific 
Information Showing That Listing Was Not Warranted:

In addition to removing recovered or extinct species from the list of 
threatened or endangered species, the Service can also delist a species 
if new information becomes available to show that protection under the 
act is not warranted. Typically, listing a species generates widespread 
attention to the species, additional funding for its study, and further 
research relating to the species or its habitat. As additional 
information is gathered, the Service or interested parties can initiate 
a delisting action if they believe the species no longer qualifies for 
listing. The Service follows similar rulemaking procedures to delist a 
species as for listing.

Since the inception of the Endangered Species Act, the Service has 
delisted few species. As of March 2003, the Service had delisted 25 
threatened and endangered domestic species of the more than 1,200 
listed.[Footnote 31] Of the 25 delistings, 10 resulted from new 
information--4 because new information showed the species to be more 
widespread or abundant than believed at the time the species was 
listed, and 6 for taxonomic revisions, meaning that the species was 
found not to be unique, but was a hybrid or simply a population of 
another common species making it ineligible for listing (see table 1). 
The remaining 15 delistings resulted from recovery efforts (7), 
extinction (7), or an amendment to the act that made the species no 
longer qualify for listing protection (1).[Footnote 32]

Table 1: Species Delisted on the Basis of New Information:

Species name: Dismal Swamp southeastern shrew; Description: A small, 
long-tailed shrew found in the southeastern U.S; Date listed: Sept. 
26, 1986; Date delisted: Feb. 28, 2000; Reason delisted: Species more 
abundant or widespread: Analyses completed after the species was listed 
showed that the species is actually widely distributed and uses a wide 
variety of habitat types.

Species name: McKittrick pennyroyal; Description: A small herb native 
to the Guadalupe Mountains in southeastern New Mexico and northwestern 
Texas; Date listed: July 13, 1982; Date delisted: Sept. 22, 1993; 
Reason delisted: Species more abundant or widespread: Since the time of 
listing, additional surveys have shown the plant to be more widespread 
and abundant than previously known. Further, management actions were 
taken by various federal agencies to provide protections to the plant.

Species name: Tumamoc globeberry; Description: A vine occurring in 
south-central Arizona and extending southward into Mexico; Date listed: 
Apr. 29, 1986; Date delisted: June 18, 1993; Reason delisted: Species 
more abundant or widespread: Surveys and studies completed after the 
time of the listing showed that the range of the species is much larger 
than originally known and the plant was more common and requires less 
habitat-specific areas than was believed at the time of listing.

Species name: Pine barrens treefrog, Florida population; Description: A 
frog known to occur in Florida, Alabama, New Jersey, and the Carolinas; 
Date listed: Nov. 11, 1977; Date delisted: Nov. 22, 1983; Reason 
delisted: Species more abundant or widespread: Subsequent studies 
completed after the time of listing revealed a number of new 
populations and a more extensive distribution of the species throughout 
Florida and Alabama.

Species name: Umpqua River cutthroat trout; Description: A fish found 
in the Umpqua River basin in coastal Oregon; Date listed: Sept. 13, 
1996; Date delisted: Apr. 26, 2000; Reason delisted: Species more 
abundant or widespread: An expanded review subsequent to listing showed 
that this population is part of another larger population of trout that 
did not warrant listing.

Species name: Lloyd's hedgehog cactus; Description: A cactus primarily 
occurring in Texas and New Mexico; Date listed: Oct. 26, 1979; Date 
delisted: June 24, 1999; Reason delisted: Species more abundant or 
widespread: Subsequent studies completed after the time of listing 
showed evidence indicating that the cactus is not a distinct species 
but rather is a hybrid.

Species name: Cuneate bidens; Description: A flowering Hawaiian plant; 
Date listed: Feb. 17, 1984; Date delisted: Feb. 6, 1996; Reason 
delisted: Species more abundant or widespread: Subsequent studies after 
the time of listing culminated in a taxonomic revision of the genus. 
The plant was determined to be no more than an outlying population of 
another common species, which is not significantly threatened.

Species name: Spineless hedgehog cactus; Description: A cactus known to 
occur in southeastern Utah and southwestern Colorado; Date listed: Nov. 
7, 1979; Date delisted: Sept. 22, 1993; Reason delisted: Species more 
abundant or widespread: Subsequent to listing, several evaluations did 
not recognize the cactus as a distinct species and the consensus of 
botanists was that the cactus was only a form of another type of cactus 
which was much more widespread, occurring from Utah and Colorado south 
into central Mexico.

Species name: Purple-spined hedgehog cactus; Description: A cactus 
occurring in southwestern Utah; Date listed: Oct. 11, 1979; Date 
delisted: Nov. 27, 1989; Reason delisted: Species more abundant or 
widespread: Several reviews after listing discovered that the 
characteristics of the purple-spined hedgehog cactus were simply 
morphological variations within the population of a more common species 
found throughout the Mojave Desert in southwestern Utah.

Species name: Mexican duck; Description: A duck found throughout the 
southwestern U.S. and Mexico; Date listed: Mar. 11, 1967; Date 
delisted: July 25, 1978; Reason delisted: Species more abundant or 
widespread: After the listing of the Mexican duck, the duck was 
determined to be a subspecies of the common mallard duck with a large 
zone of interbreeding between the two. Additional information also 
indicated that the loss of habitat throughout its range was no longer a 
threat that would qualify the species for listing.

Source: GAO analysis of U.S. Fish and Wildlife Service data.

[End of table]

Concerns Remain Over the Adequacy of Scientific Information Used in 
Making Critical Habitat Decisions:

While external reviews indicate that the Service bases most critical 
habitat decisions on the best available science, concerns remain over 
the adequacy of the information available to support the decisions. 
Experts and others we spoke to explained that the amount of scientific 
information available on a species' habitat needs often may be limited, 
affecting the Service's ability to adequately define the habitat area 
required. Experts that peer reviewed proposed critical habitat 
designations generally supported the Service's decisions, though many 
provided additional clarifications or suggestions. While the courts 
have overturned few critical habitat decisions on the basis of 
inadequate science, scientific disagreements over these decisions 
continue.

Experts and Others Express Concerns About Critical Habitat Decisions:

Experts and others knowledgeable about the Endangered Species Act have 
expressed concerns about the Service's ability to designate critical 
habitat for some listed species given the amount of information 
available on the species' habitat needs. Unlike listing decisions, 
which are more straightforward--requiring the Service to answer only a 
"yes or no" question as to whether a species warrants listing--critical 
habitat decisions often require more detailed knowledge about a 
species' life history and habitat needs and call for the Service to 
factor in the species' special management needs in addition to the 
economic impacts of the designation. Service officials, experts, and 
others we spoke to agreed that the amount of scientific information 
available is limited and often affects the Service's ability to 
adequately define the habitat essential to the species' conservation. 
While some interested parties stated that the Service designated areas 
too broadly and included lands unsuitable for several species, others 
said that the Service did not designate enough habitat for some listed 
species. According to Service officials, the resource and time 
constraints under which the Service's scientists work often preclude 
them from collecting new information and, as a result, the information 
available may limit their ability to produce adequate critical habitat 
designations for some species. We found that most scientific 
disagreements surrounding recent critical habitat designations 
concerned whether the area chosen as critical habitat is sufficiently 
defined or whether the overall information used to support the 
designation is adequate. (See app. IV for information on the nature of 
scientific controversy surrounding the Service's decisions to designate 
critical habitat for listed species.) In order to increase the amount 
of information available on which to base critical habitat 
designations, the Service and others, including the National Research 
Council, have recommended delaying designations until recovery plans 
are developed.[Footnote 33]

Peer Reviewers Generally Support the Service's Critical Habitat 
Designations, but Raise Concerns about the Areas Selected:

The Service received 69 peer-review responses for 27 of the 37 critical 
habitat decisions finalized during fiscal years 1999 through 2002; it 
received no responses for 10 decisions (see app. III). Reviewers 
providing comments in 17 of these decisions unanimously agreed with the 
Service's scientific conclusions or otherwise indicated support for the 
critical habitat designation. In six decisions, while not stating 
explicit agreement with the Service's use of science, the reviewer did 
not identify any major inadequacies or reasons for substantially 
modifying the proposed habitat. In another decision, the Service 
reported that five peer reviewers supported the decision and one was 
"neutral." One or more peer reviewers disagreed with the Service's 
proposed critical habitat designations for the remaining three 
decisions:

* Zapata bladderpod. The one reviewer responding to the proposed 
critical habitat designation of the Zapata bladderpod, a flowering 
plant that grows in Texas, stated that the areas selected on state and 
private lands were too small to support viable populations or the area 
was not always suitable habitat for the species. The reviewer also said 
it was premature to select those sites given the lack of information 
about the species.

* Cactus ferruginous pygmy-owl. The one reviewer responding to the 
proposed critical habitat designation for the cactus ferruginous pygmy-
owl, a small bird found in the southwestern United States, disagreed 
with the designation on the grounds that there were too many unknowns 
about the species' habitat requirements to support a determination 
about its critical habitat.

* Newcomb's snail. Two of the six reviewers responding to the Service's 
proposed critical habitat determination for the Newcomb's snail (found 
only on the island of Kauai, Hawaii) disagreed with the proposed rule-
-the other four supported it. One of the reviewers who disagreed stated 
that there was inadequate information to make a determination because 
habitat requirements for the snail were limited to generalized 
observations in the field and thus were speculative. The reviewer said 
the designation did not identify the habitat features essential to the 
conservation of the species and was premature until additional 
biological information was obtained. Similarly, the other reviewer 
objecting to the determination did so largely because of his 
understanding that the process was based on few published scientific 
studies, and much was still unknown about the species' habitat 
requirements.

Even though peer reviewers may have concurred with the Service's 
critical habitat designation, many provided clarifications or suggested 
modifications. We analyzed the peer reviewers' responses for 16 of the 
27 critical habitat decisions the Service made. There were 35 peer-
review responses to these 16 decisions. Nearly all of the reviewers 
provided specific clarifications on information contained in the rule 
or suggestions for altering the habitat area selected. For instance, in 
many of the responses, the reviewer agreed with the proposal in 
general, but stated that additional lands should be included in the 
critical habitat designation and cited scientific reasons for 
increasing habitat areas. In one decision, a reviewer generally 
supporting the proposed critical habitat of the arroyo toad (an 
endangered toad found in coastal and desert drainages in California) 
identified specific areas where he believed the toad ranged more widely 
and would therefore warrant additional critical habitat. Another 
reviewer, generally supporting the proposed critical habitat for the 
Great Lakes population of the piping plover (a small shorebird that 
occurs across North America), identified sites she believed should be 
added to the designation and areas she believed to be unsuitable for 
the species and therefore should be excluded from the designation.

Courts Have Overturned Few Critical Habitat Decisions on the Basis of 
Inadequate Science:

As with listing decisions, and due in part to the deference the courts 
grant to the Service, most litigation has not directly challenged the 
Service's use of science in making critical habitat determinations. 
Based on a review of federal court cases decided during fiscal years 
1999 through 2002, we identified 11 cases in which a court issued an 
opinion regarding the Service's critical habitat decisions. Most of 
these 11 cases dealt with nonscience issues, such as the Service's 
failure to designate critical habitat for a listed species. However, 
the courts overturned critical habitat decisions on the basis of issues 
related to the use of scientific data in the following two 
cases:[Footnote 34]

* Rio Grande silvery minnow. In 2000, a federal court invalidated the 
critical habitat of the Rio Grande silvery minnow based in part on 
scientific grounds.[Footnote 35] Multiple groups, including the state 
of New Mexico, challenged the designation of critical habitat for the 
silvery minnow, a fish found exclusively in the Rio Grande River in the 
Southwest. The critical habitat designation for this fish consisted of 
a 163-mile stretch of the main stem of the Rio Grande River. The court 
ruled in favor of the plaintiffs because it found that the Service's 
final rule had failed to (1) define with sufficient specificity what 
biological and physical features were essential to the species' 
survival and recovery and (2) indicate where in each reach of the river 
such features existed. For example, the court said that the Service's 
statement in the rule regarding the minnow's need for "sufficient 
flowing water" provided vague generalities that stated little more than 
what is required for any fish species. As a result of this court 
ruling, the Service is in the process of redesignating critical habitat 
for this species.

* Cactus ferruginous pygmy-owl. In 2001, a court struck down the 
critical habitat designation for the cactus ferruginous pygmy-owl 
because, among other reasons, the designation was not supported by the 
best available scientific data.[Footnote 36] The final critical habitat 
for the pygmy-owl, a small bird found in the southwestern United 
States, consisted of over 700,000 acres of riparian and upland habitat 
in Arizona. The court noted that the determination of critical habitat 
is to be made on the basis of the "best scientific data available" and 
that this involves identifying geographic areas "essential to the 
conservation of the species." The court then pointed out that 
systematic owl surveys had not yet been completed over the entire 
potential habitat in Arizona, and that the Service determined critical 
habitat by designating areas where the pygmy-owls had been sighted, 
areas that it thought would be consistent with the species' known 
habitat, and all the land in between. The court also pointed out that, 
in addition to the areas actually occupied by the pygmy-owls, the 
Service had included areas where it thought they could live. The court 
appeared to conclude that, in order to include areas that were not 
presently occupied, the Service should have determined that such areas 
were in fact essential to the conservation of the species. Although the 
Service had already agreed to reconsider the economic analysis used in 
the critical habitat designation, the court concluded that a "broader 
reconsideration" of the critical habitat designation was necessary. The 
Service is in the process of redesignating critical habitat for the 
pygmy-owl.

The Service Has Failed to Address Known Problems with the Critical 
Habitat Program:

The Service's critical habitat program currently faces a serious crisis 
that extends well beyond the use of science in making decisions. 
Litigation now dominates the program, leading the Assistant Secretary 
for Fish and Wildlife and Parks in the Department of the Interior to 
recently declare that the system for designating critical habitat is 
"broken" because it provides little conservation benefit while 
consuming significant resources.

A key court case in 1997 invalidated the Service's position on when 
critical habitat should be designated. The Endangered Species Act 
generally requires the Service to designate critical habitat for listed 
species unless the Service determines it is "not prudent,"[Footnote 37] 
and the Service's regulations spell out that it is not prudent to 
designate critical habitat if doing so would not be "beneficial to the 
species."[Footnote 38] As a result, prior to 1997, the Service had 
designated critical habitat for only 113 of the 1,023 domestic species 
that it had listed. The Service reasoned that designating critical 
habitat did not benefit the species because the benefits that critical 
habitat provided duplicated those benefits provided by listing the 
species.[Footnote 39] The 1997 court case invalidated the Service's 
reasoning, ruling that the Service's determination that it was not 
prudent to designate critical habitat for the coastal California 
gnatcatcher, a songbird unique to coastal southern California, was not 
justified.[Footnote 40] One of the reasons that the Service concluded 
that it was not prudent to designate critical habitat was because it 
believed that such a designation would not appreciably benefit the 
species because most populations of gnatcatchers were found on private 
lands to which the act's critical habitat protections would not apply. 
The court found that this reasoning improperly expanded what Congress 
had intended to be a narrow exception to designating critical habitat. 
The court concluded that the Service had disregarded "the clear 
congressional intent that the imprudence exception be a rare 
exception." Since then, court orders and settlement agreements have 
compelled the Service to designate critical habitat for species for 
which it had previously determined that it was not prudent to do so.

Subsequently, a 2001 court case led the Service to reconsider some of 
its critical habitat designations.[Footnote 41] The case involved the 
requirement of the act that the Service consider the economic impact of 
designating a particular area as critical habitat. According to the 
act, the Service may exclude areas from critical habitat if it 
determines that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat unless excluding it 
would result in the extinction of the species. For example, in 1997, 
the Service designated critical habitat for the southwestern willow 
flycatcher, a small bird that nests in riparian areas in the 
southwestern United States. Because the Service believed that 
designating critical habitat would not result in additional 
restrictions on activities beyond those resulting from listing the 
species, it reasoned that there would be no significant economic impact 
associated with designating critical habitat for the 
flycatcher.[Footnote 42] However, the court disagreed. It found that 
since the act clearly barred the Service from considering economic 
impacts in listing decisions, but required they be considered in 
critical habitat decisions, the Service was not free to ignore the 
economic impacts of listing a species when designating critical habitat 
for that species. The court held that the Service had to consider all 
of the economic impacts of a critical habitat determination, regardless 
of whether those impacts were also attributable to listing or other 
causes. Since this decision was issued, court orders and settlement 
agreements have prompted the Service to re-issue some critical habitat 
decisions to comply with this standard.

Since these two court rulings, the Service's critical habitat program 
has become dominated by litigation. Each critical habitat designation 
made since 1997 has resulted from a court order or a settlement 
agreement, and the Service expects that it will have to dedicate 
significant resources through fiscal year 2008 to comply with existing 
court orders and settlement agreements. The department believes that 
this flood of litigation over critical habitat designation is 
preventing the Service from taking what it deems to be higher priority 
activities, such as addressing the approximately 250 "candidate" 
species waiting to go through the listing process (listing and critical 
habitat activities are funded under the same line item in the 
department's budget). Service officials noted that there are other 
court decisions that may cause additional problems for the program in 
the future.

The Service has been aware of problems with its critical habitat 
program for a number of years. The Service noted significant problems 
with its critical habitat program in 1997,[Footnote 43] and in 1999 it 
issued a Federal Register notice announcing that its system for 
designating critical habitat was not working and soliciting comments on 
its intention to develop policy or guidance and/or to revise 
regulations or seek legislative corrections to clarify the role of 
critical habitat in conserving endangered species.[Footnote 44] In 
particular, the Service stated its intention to consider when critical 
habitat designation would provide additional protection beyond that 
provided by listing. The Service also announced its intention to 
streamline the process for designating critical habitat to be more 
cost-effective and in line with the amount of conservation benefit 
provided to the species. In particular, the Service declared that it 
needs to develop a much less labor-intensive process for describing the 
areas proposed for designation as critical habitat. The Service also 
stated that it can streamline and make more cost-effective the process 
to conduct the economic analyses required to designate critical habitat 
and that it can more efficiently conduct the analyses required under 
the National Environmental Policy Act. The Service also noted that 
critical habitat litigation and related court orders were consuming 
much of the resources devoted to listing and critical habitat, and 
delaying other activities that it considered higher priority, such as 
addressing petitions submitted by citizens, working with landowners on 
conservation projects, and completing final actions to list species. 
However, no additional guidance or revisions were issued, and the 
Service continues to follow the same unworkable system.

The Department of the Interior recently echoed concerns with the 
Service's critical habitat program and the limited conservation benefit 
it provides to species. In April 2003, the Assistant Secretary for Fish 
and Wildlife and Parks testified before Congress on the critical 
habitat program, stating that it is "broken" and in "chaos." He noted 
that litigation support is consuming valuable resources and that 
complying with court orders and settlement agreements has sharply 
reduced the Service's ability to prioritize its listing and critical 
habitat actions. Service scientists working in field offices expressed 
similar concerns to us about the critical habitat program, raising 
questions about the purpose of critical habitat and the designation 
process. An attorney in the Solicitor's office told us that guidance 
would improve the Service's critical habitat decisions and make the 
decisions more defensible in court in the future.

Despite the long-standing concerns over the role and implementation of 
the critical habitat program, the Service has done little to resolve 
them. In a report issued in June 2002, we recognized the impact that 
litigation was having on the critical habitat program and recommended 
that the Service expedite its efforts to develop guidance on 
designating critical habitat for listed species to help reduce the 
influence of future litigation.[Footnote 45] Better guidance would help 
reduce the number of legal challenges to the Service's critical habitat 
designations and allow the Service to better withstand legal challenges 
when they arise. While the Service agreed with our recommendation, it 
responded that work on critical habitat guidance had been delayed 
pending Service efforts to complete higher priority tasks, including 
court orders to complete listing and critical habitat decisions and did 
not commit to a schedule for issuing the guidance. An official with 
Interior's Solicitor's office told us that one factor limiting the 
agency's ability to complete these tasks is the Service's inability to 
devote significant listing and critical habitat resources to policy 
initiatives without risking contempt of court because such action would 
force the agency to divert resources away from activities required to 
comply with court orders.

Conclusion:

The Service's critical habitat program faces a serious crisis because 
of extensive litigation that is consuming significant program 
resources. The Service has recognized this crisis for many years but 
has done little to address it. Accordingly, in June 2002, we 
recommended that the Service expedite its efforts to develop guidance 
on designating critical habitat to reduce the influence of future 
litigation. While the Service agreed with our recommendation, it has 
done little to develop this guidance. Service officials complain that 
they are locked in a vicious cycle, precluded from developing the 
guidance for fear of being held in contempt of court for diverting 
resources away from activities already required by existing court 
orders. While the Service clearly faces a dilemma, it is imperative 
that it clarify the role of critical habitat and develop guidance for 
how and when it should be designated, and seek regulatory and/or 
legislative changes that may be necessary to provide threatened and 
endangered species with the greatest conservation benefit in the most 
cost-effective manner.

Recommendation for Executive Action:

Because the Service's critical habitat program faces serious 
challenges, we recommend that the Secretary of the Interior require the 
Service to provide clear strategic direction for the critical habitat 
program, within a specified time frame, by clarifying the role of 
critical habitat and how and when it should be designated, and 
recommending policy/guidance, regulatory, and/or legislative changes 
necessary to provide the greatest conservation benefit to threatened 
and endangered species in the most cost-effective manner.

Agency Comments:

We provided the Department of the Interior with a draft of this report. 
The department did not provide comments on the draft.

:

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies of this report 
to the Secretary of the Interior and other interested parties. We also 
will make copies available to others upon request. In addition, the 
report will be available at no charge on the GAO Web site at http://
www.gao.gov.

If you or your staffs have any questions, please call me at (202) 512-
3841. Key contributors to this report are listed in appendix V.

Signed by:

Barry T. Hill 
Director, Natural Resources and Environment:

[End of section]

Appendixes: 

Appendix I: Objectives, Scope, and Methodology:

This report assesses the U.S. Fish and Wildlife Service's consideration 
and use of science in its decisions to list species as threatened or 
endangered and to designate critical habitat.[Footnote 46] 
Specifically, we were asked to review the extent to which (1) the 
Service's policies and practices ensure that listing and critical 
habitat decisions are based on the best available science and (2) 
outside reviewers have supported the scientific data and conclusions 
that the Service uses to make listing and critical habitat decisions. 
In no instance did we attempt to evaluate scientific data and render an 
opinion. For this evaluation, we define "science" as the collection and 
interpretation of biological information, such as the identification of 
a species and its habitat needs. This definition does not include the 
legal policies and definitions found in the law or used to implement or 
interpret the Endangered Species Act. However, we acknowledge that 
there is not always a clear distinction between the interpretation of 
biological information and the policies and definitions used to 
interpret the act.

In meeting our first objective, we examined the Service's decision-
making process to determine the extent to which it would likely lead to 
decisions based on the best available science. We reviewed the 
Service's policies and procedures related to how it makes these 
decisions and discussed the process and procedures with key officials 
at the Service's headquarters and with staff in the Service's regional 
and field offices to determine their knowledge of the process and how 
they implemented it. We also spoke with peer-review experts and 
examined the literature on the processes that organizations use to peer 
review their decisions and products to assess the reasonableness of the 
Service's policy to peer review proposed listing and critical habitat 
decisions.

In meeting both objectives, we obtained from the Service a list of the 
decisions to list species and designate critical habitat that the 
Service finalized during fiscal years 1999 through 2002. To verify the 
completeness of the provided list of decisions, we compared it with a 
second independent database maintained by the Service. We identified 
one decision that was not on the original list provided to us by the 
Service. We included that decision in our analysis. Based on this 
information, we identified 101 final decisions to list or designate 
critical habitat that were published in the Federal Register during 
fiscal years 1999 through 2002.

We examined the Federal Register notices for the 101 decisions to 
determine (1) the extent to which the Service complied with its peer-
review policy to request at least three peer reviewers to review each 
decision, (2) the number that reviewed each decision, and (3) whether 
or not the reviewer(s) supported the decision. In 61 of the 101 
decisions, we extracted this information from the Federal Register. For 
the remaining 40 decisions, we contacted the 18 field offices 
responsible for the decisions and requested that they provide the peer-
review documentation, including copies of the peer reviewers' 
responses. The Service provided us with the missing information in all 
but seven instances; in five of those instances partial information was 
available.

To assess the accuracy of the information reported in the Federal 
Register notices, we requested that the Service provide documentation 
for the peer-review information, including peer reviewers' responses, 
for 8 of the 61 decisions for which complete information was available 
in the Federal Register notice. We selected these 8 decisions in the 
following way. In order to minimize the burden on the Service's field 
staff, we limited our universe to the decisions that were the 
responsibility of the18 field offices that we already intended to 
contact. These offices were responsible for 48 of the 61 decisions for 
which there was complete information in the Federal Register notice. We 
then randomly chose 1 decision from each of the three offices with the 
most decisions. Collectively these offices were responsible for 25 of 
the 48 decisions. We also randomly chose 5 of the remaining 23 
decisions. We compared the documentation provided to us with the 
information in the corresponding Federal Register notices. We found no 
discrepancies. However, we did find minor discrepancies between other 
Federal Register notices and the documentation the Service provided to 
us. We reconciled these discrepancies. Additionally, based on a limited 
review, we found the Service's procedures reasonable for ensuring that 
its database contains accurate information. For example, the Service 
regularly samples data recently added to the database for accuracy. We 
did not determine the extent to which any of the Service's final 
decisions reflected the comments and opinions of the peer reviewers.

In addition to determining whether peer reviewers supported the 
decision they reviewed, we performed a content analysis on the peer-
review responses for 16 critical habitat decisions to more fully 
characterize the opinions of the peer reviewers. We chose to perform a 
content analysis on the responses to critical habitat decisions because 
these decisions are open-ended, requiring the Service to determine how 
much critical habitat to designate and where that habitat should be 
located. There were 35 peer-review responses for these 16 decisions.

To determine how well the Service's listing and critical habitat 
decisions are withstanding legal challenges to the science supporting 
those decisions, we used common legal research methods to identify 
federal court cases related to the Service's listing and critical 
habitat decisions. We identified and reviewed 25 cases that were 
decided during fiscal years 1999 through 2002 that involved a challenge 
to a Service listing decision and/or critical habitat decision, and in 
which the court rendered a decision on the listing or critical habitat 
issue.

To determine the extent to which the Service has delisted species 
because new scientific information surfaced indicating that listing was 
not originally warranted, we used information from the Service's 
publicly accessible database. We included in our analysis all decisions 
to delist species from the inception of the act through March 2003. We 
compared this information with information published in the Federal 
Register. We found no discrepancies.

Finally, to get a fuller understanding of the degree of scientific 
controversy regarding listing and critical habitat decisions, we 
solicited the opinions of experts and others and reviewed published 
studies. To illustrate the nature of scientific controversy regarding 
listing and critical habitat decisions, we developed a list of 
decisions for which there was some degree of scientific controversy. We 
developed this list by asking experts in the private, academic, 
government, and nonprofit sectors spanning the political spectrum to 
identify recent decisions that were particularly controversial due to 
scientific disagreements and briefly explain the nature of the 
controversy. We limited our analysis to decisions finalized during 
fiscal years 1993 through 2002. In addition, we asked each expert for 
the names of other experts who could help us develop our list. We 
stopped contacting experts when we began to get repetitive responses. 
We then identified common issues related to the controversies to 
characterize the types of disagreements involved with each of the 
decisions. We based this on the information provided by the experts and 
information published in the Federal Register. Finally, we presented 
the list of decisions and related information to officials at the 
Service and at the National Academy of Sciences for their opinions on 
the list of decisions and how we characterized them. The officials 
generally agreed with the information we presented.

Additionally, in the course of our work, it became apparent that 
litigation was dominating the Service's critical habitat program, and 
we discuss these circumstances in our report. Specifically, we describe 
how several key court cases are affecting the program.

We performed our work from September 2002 through June 2003 in 
accordance with generally accepted government auditing standards.

[End of section]

Appendix II: Overview of The Endangered Species Act:

The Endangered Species Act was passed by Congress to provide a means to 
conserve the ecosystems upon which endangered and threatened species 
depend and to conserve and recover imperiled species. The act was 
passed in 1973 and replaced earlier laws, which provided for a list of 
endangered species but gave them little meaningful protection. While 
significant amendments were enacted in 1978, 1982, and 1988, the 
overall framework of the act has remained essentially unchanged. The 
Department of the Interior delegated its responsibility for the act to 
the U.S. Fish and Wildlife Service (Service), which established an 
endangered species program to implement the requirements of the act. 
The Service is responsible for all land-dwelling species, freshwater 
species, some marine mammals, and migratory birds. The Department of 
Commerce, which has delegated its responsibility to the National Marine 
Fisheries Service, is responsible for implementing the act for marine 
species including anadromous (both freshwater and ocean dwelling) fish.

The act provides numerous provisions to protect and recover species at 
risk of extinction. However, before a plant or animal species is 
eligible to benefit from most of these provisions, it must first be 
added to the Federal List of Endangered and Threatened Wildlife and 
Plants. Once on the list, key provisions of the act, including critical 
habitat, recovery plans, consultations with federal agencies, and 
habitat conservation plans, are designed to assist in recovering the 
species so that it can then be removed from the list.

Listing Species as Endangered or Threatened:

Under the act, species may be listed as either endangered or 
threatened. An endangered species is any species of animal or plant 
that is in danger of extinction throughout all or a significant portion 
of its range. A threatened species is any species of animal or plant 
that is likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range. All species of 
plants and animals (except pest insects) are eligible for listing as 
endangered or threatened. As of June 2003, there were a total of 1,821 
listed species; 1,504 species on the endangered species list, 987 of 
which occur in the United States; and 317 threatened species, 276 of 
which occur in the United States.[Footnote 47]

The decision to list a species must be based solely on the best 
available scientific and commercial data. Using these data, the Service 
must determine whether a species should be listed by analyzing its 
status based on the following factors: (1) current or threatened 
destruction, modification, or curtailment of a species habitat or 
range; (2) over utilization of the species for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) inadequacy of existing regulatory mechanisms; and (5) 
other natural or manmade factors affecting the species' continued 
existence. The Service follows a rigorous process to determine whether 
to list a species. A final decision to list a species is published in 
the Federal Register.

The Service may issue emergency regulations to list a species without 
complying with the normal regulatory process if it finds that an 
emergency poses a significant risk to the well-being of any species. 
Emergency regulations take effect immediately upon publication in the 
Federal Register and are effective for 240 days.

The Service also maintains a list of candidate species. Candidate 
species are species for which substantial information is available to 
support a listing proposal, but have not yet been proposed for listing. 
The Service maintains this list for a variety of reasons, including (1) 
to provide advance knowledge of potential listings that could affect 
decisions of environmental planners and developers, (2) to solicit 
input from interested parties to identify those candidate species that 
may not require protection under the act or additional species that may 
require the act's protections, and (3) to solicit information needed to 
prioritize the order in which species will be proposed for listing. The 
Service is required to publish a notice of review annually in the 
Federal Register to solicit new information on the status of candidate 
species. The Service works with parties, such as states and private 
partners, to carry out conservation actions--often called Candidate 
Conservation Agreements--for candidate species to prevent their further 
decline and possibly eliminate the need to list them as endangered or 
threatened. As of June 2003, there were 251 candidate species, many of 
which have held that status for more than a decade.

Critical Habitat:

The Service is generally required to designate critical habitat at the 
time a species is listed as endangered or threatened. Critical habitat 
is the specific geographic area essential for the conservation of a 
threatened or endangered species and that may require special 
management considerations and protection. Critical habitat contains 
physical and biological habitat features such as: (1) space for 
individual and population growth and for normal behavior; (2) cover or 
shelter, food, water, air, light, minerals, or other nutritional or 
physiological requirements; (3) sites for breeding and rearing 
offspring; and (4) habitats that are protected from disturbances or are 
representative of the historic geographical and ecological 
distributions of a species. Critical habitat may also include areas not 
occupied by the species at the time of listing but that are essential 
to the conservation and recovery of the species. Unlike the decision to 
list a species as endangered or threatened, a final designation of 
critical habitat is to be made on the basis of not only the best 
scientific data available but also taking into consideration the 
economic and other effects of making the decision. If the benefits of 
excluding an area outweigh the benefits of including it, the Service 
may exclude an area from critical habitat, unless the exclusion would 
result in the extinction of the species.

The Service may take up to an additional year after listing a species 
to designate critical habitat if it finds that critical habitat is "not 
determinable." Critical habitat is not determinable when information 
sufficient to perform the required analyses of the impacts of the 
designation of critical habitat is lacking or the biological needs of 
the species are not sufficiently known to permit identification of an 
area as critical habitat. The Service does not designate critical 
habitat if it determines that doing so would be "not prudent." It would 
not be prudent to designate critical habitat if (1) identifying the 
habitat is expected to increase the threat to the species or (2) 
designating an area as critical habitat is not expected to benefit the 
species.

Recovery Plans:

Once a species is listed, the act requires the Service to develop a 
recovery plan for the species. Recovery plans identify, justify, and 
schedule the research and management actions necessary to reverse the 
decline of a species and ensure its long-term survival. Recovery plans 
must be developed for all listed species, unless such a plan would not 
benefit the species. Although the act does not specify time frames for 
developing or implementing the recovery plan or for recovering the 
species, the Service has as a goal of developing recovery plans within 
1 year and having approved plans within 2 years of a species' listing. 
The Service solicits comments from state and federal agencies, experts 
and the public on draft recovery plans during a formal public comment 
period announced in the Federal Register. The Service periodically 
reviews approved recovery plans to determine if updates or revisions 
are needed. As of June 2003, 1000 species had approved recovery plans.

Consultations with Federal Agencies:

Federal agencies are required to consult with the Service if their 
actions may affect listed species. The goal of the consultation process 
is to identify and resolve conflicts between the protection and 
enhancement of listed species and proposed federal actions. The act 
requires that all federal agencies consult with the Service to ensure 
that any activities agencies permit, fund, or conduct are not likely to 
jeopardize the continued existence of a listed species or adversely 
modify its critical habitat. Federal agencies may informally consult 
with the Service to determine whether their actions may affect listed 
species and must proceed to formal consultations once they determine 
that their actions may adversely affect a listed species or its 
habitat. The act requires a formal consultation to be completed in 90 
days, unless the Service and the federal agency mutually agree to an 
extension, with the applicant's consent. The Service is to issue a 
"biological opinion" within 45 days of the conclusion of formal 
consultation that reviews the potential effects of the proposed action 
on listed species and/or critical habitat. The Service must base the 
biological opinion on the best available biological information. If the 
Service finds that the action would appreciably reduce the likelihood 
of the species' survival and recovery, it issues a jeopardy biological 
opinion. Jeopardy opinions include reasonable and prudent alternatives 
that define modifications to the agency's proposed action that enable 
it to continue and still be consistent with the act's requirements for 
protecting species. Following the issuance of the biological opinion, 
the federal agency determines whether it will comply with the opinion 
or seek an exemption from the act's requirements.

Proposed federal agency actions that have been determined to cause 
jeopardy to any listed species may receive an exemption from the act by 
the Federal Endangered Species Committee (also referred to as the "God 
Squad"). The Endangered Species Committee is comprised of seven 
members: the Secretary of Agriculture, the Secretary of the Army, 
Chairman of the Council of Economic Advisors, the Administrator of the 
Environmental Protection Agency, the Secretary of the Interior, the 
Administrator of the National Oceanic and Atmospheric Administration, 
and one individual from the affected state. An exemption is granted if 
at least five members of the Endangered Species Committee determine 
that, among other things, the action is of regional or national 
significance, that the benefits of the action clearly outweigh the 
benefits of conserving the species, and that there are no reasonable 
and prudent alternatives to the action. The Endangered Species 
Committee has been convened only three times since its creation in 
1978--the Tellico Dam for the snail darter fish in Tennessee, the 
Grayrocks Dam in Wyoming for the whooping crane, and Bureau of Land 
Management (BLM) timber sales for the spotted owl in Oregon. Only two 
exemptions were granted. One was in regard to the Grayrocks dam and the 
other was to approve 13 timber sales sought by BLM (which was withdrawn 
before the completion of appeals). The Tellico dam application was 
denied but was later allowed by Congress to proceed.[Footnote 48] In 
addition, three other applications were received but were subsequently 
dismissed or withdrawn before deliberations took place.

Habitat Conservation Plans:

The act generally prohibits any person from "taking" an animal species 
listed as endangered.[Footnote 49] "Taking" or "take" means to harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture or collect a 
listed species, and under Service guidelines, includes the destruction 
of the species' habitat. However, in 1982, Congress amended the act to 
include a process whereby the Service may issue permits that allow 
private individuals to incidentally take listed species. Incidental 
take is the take of any federally listed species that is incidental to, 
but not the purpose of, otherwise lawful activities. Permit applicants 
are required to submit a habitat conservation plan, which includes 
measures the applicant will take to minimize and mitigate the impacts 
that may result from the taking. The Service is required to publish a 
notice in the Federal Register soliciting comments from interested 
parties on each application for a permit and its accompanying habitat 
conservation plan. As of April 2003, 416 habitat conservation plans 
have been approved. The act prohibits the Service from issuing a permit 
if doing so would appreciably reduce the likelihood of the survival and 
recovery of the species in the wild. The incidental taking of a listed 
species resulting from federal agency actions may also be allowed under 
the act and would be addressed through the consultation process.

[End of section]

Appendix III: Peer Reviewers' Responses to Listing and Critical Habitat 
Decisions for Fiscal Years 1999 through 2002:

Federal Register title and number: Listing decisions.

Federal Register title and number: Determination of Endangered 
or Threatened Status for Five Desert Milk-vetch Taxa From California 
(63 FR 53596); Date: Listing decisions: Oct. 6, 1998; Peer reviewers: 
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing 
decisions: 2; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 2; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Determination of Endangered or 
Threatened Status for Four Southwestern California Plants from Vernal 
Wetlands and Clay Soils (63 FR 54975); Date: Listing decisions: Oct. 
13, 1998; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: 
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 1; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determinations of Endangered or 
Threatened Status for Four Plants (63 FR 54938); Date: Listing 
decisions: Oct. 13, 1998; Peer reviewers: Asked: Listing decisions: 3; 
Peer reviewers: Responded: Listing decisions: 2; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered or Threatened Status for 
Three Plants from the Chaparral and Scrub of Southwestern California 
(63 FR 54956); Date: Listing decisions: Oct. 13, 1998; Peer reviewers: 
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing 
decisions: 0; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: [Empty]; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Endangered Status for Three Aquatic 
Snails, and Threatened Status for Three Aquatic Snails in the Mobile 
River Basin of Alabama (63 FR 57610); Date: Listing decisions: Oct. 28, 
1998; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers: 
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 1; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for Virginia Sneezweed (Helenium virginicum) a Plant From the 
Shenandoah Valley of Virginia (63 FR 59239); Date: Listing decisions: 
Nov. 3, 1998; Peer reviewers: Asked: Listing decisions: 3; Peer 
reviewers: Responded: Listing decisions: 2; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: 2; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule to List the 
Arkansas River Basin Population of the Arkansas River Shiner 
(Notropis girardi) as Threatened (63 FR 64772); Date: Listing 
decisions: Nov. 23, 1998; Peer reviewers: Asked: Listing decisions: 20; 
Peer reviewers: Responded: Listing decisions: 1; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List the Topeka Shiner 
as Endangered (63 FR 69008); Date: Listing decisions: Dec. 15, 1998; 
Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded: 
Listing decisions: 1; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 1; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the St. Andrew Beach Mouse (63 FR 70053); Date: Listing decisions: 
Dec. 18, 1998; Peer reviewers: Asked: Listing decisions: 4; Peer 
reviewers: Responded: Listing decisions: 4; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: 4; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for the Sacramento Splittail (64 FR 5963); Date: Listing decisions: 
Feb. 8, 1999; Peer reviewers: Asked: Listing decisions: 3; Peer 
reviewers: Responded: Listing decisions: 0; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: [Empty]; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for Catesbaea Melanocarpa (64 FR 13116); Date: Listing decisions: Mar 
17, 1999; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers: 
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List the Flatwoods 
Salamander as a Threatened Species (64 FR 15691); Date: Listing 
decisions: Apr. 1, 1999; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 3; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Threatened Status for the 
Plant Thelypodium howellii ssp. spectabilis (Howell's spectacular 
thelypody) (64 FR 28393); Date: Listing decisions: May 26, 1999; Peer 
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded: 
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 2; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Plant Eriogonum apricum (inclusive of vars. apricum and 
prostratum) (Ione Buckwheat) and Threatened Status for the Plant 
Arctostaphylos myrtifolia (64 FR 28403); Date: Listing decisions: May 
26, 1999; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: 
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 1; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Threatened Status for Lake Erie 
Water Snakes (Nerodia sipedon insularum) on the Offshore Islands of 
Western Lake Erie (64 FR 47126); Date: Listing decisions: Aug. 30, 
1999; Peer reviewers: Asked: Listing decisions: [A]; Peer reviewers: 
Responded: Listing decisions: [Empty]; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Endangered Status for 10 Plant 
Taxa From Maui Nui, HI (64 FR 48307); Date: Listing decisions: Sep. 3, 
1999; Peer reviewers: Asked: Listing decisions: 6; Peer reviewers: 
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule to List the Devils River 
Minnow as Threatened (64 FR 56596); Date: Listing decisions: Oct. 20, 
1999; Peer reviewers: Asked: Listing decisions: 5; Peer reviewers: 
Responded: Listing decisions: 4; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 4; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule to List Astragalus 
desereticus (Desert milk-vetch) as Threatened (64 FR 56590); Date: 
Listing decisions: Oct. 20, 1999; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for the Plant Helianthus paradoxicus (Pecos Sunflower) (64 FR 56582); 
Date: Listing decisions: Oct. 20, 1999; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for Bull Trout in the Coterminous United States (64 FR 58910); Date: 
Listing decisions: Nov. 1, 1999; Peer reviewers: Asked: Listing 
decisions: 6; Peer reviewers: Responded: Listing decisions: 1; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
1; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Plant Lesquerella thamnophila (Zapata Bladderpod) 
(64 FR 63745); Date: Listing decisions: Nov. 22, 1999; Peer reviewers: 
Asked: Listing decisions: 29; Peer reviewers: Responded: Listing 
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 3; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Final Endangered Status for the 
Plant Fritillaria gentneri (Gentner's fritillary) (64 FR 69195); Date: 
Listing decisions: Dec. 10, 1999; Peer reviewers: Asked: Listing 
decisions: [B]; Peer reviewers: Responded: Listing decisions: 4; 
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing 
decisions: 4; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for Sidalcea oregana var. calva (Wenatchee Mountains Checker-Mallow) 
(64 FR 71680); Date: Listing decisions: Dec. 22, 1999; Peer reviewers: 
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing 
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 3[C]; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Final Rule To List the Sierra Nevada 
Distinct Population Segment of the California Bighorn Sheep as 
Endangered (65 FR 20); Date: Listing decisions: Jan. 3, 2000; Peer 
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded: 
Listing decisions: 3; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 3; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List Two Cave Animals 
From Kauai, Hawaii, as Endangered (65 FR 2348); Date: Listing 
decisions: Jan. 14, 2000; Peer reviewers: Asked: Listing decisions: 3; 
Peer reviewers: Responded: Listing decisions: 1; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered Status for Erigeron 
decumbens var. decumbens (Willamette Daisy) and Fender's Blue Butterfly 
(Icaricia icarioides fenderi) and Threatened Status for Lupinus 
sulphureus ssp. Kincaidii (65 FR 3875); Date: Listing decisions: Jan. 
25, 2000; Peer reviewers: Asked: Listing decisions: [B]; Peer 
reviewers: Responded: Listing decisions: 6; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: 6; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered Status for the Plant 
Plagiobothrys hirtus (Rough Popcornflower) (65 FR 3866); Date: Listing 
decisions: Jan. 25, 2000; Peer reviewers: Asked: Listing decisions: 
[B]; Peer reviewers: Responded: Listing decisions: 2; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for Two Larkspurs From Coastal Northern California (65 FR 4156); Date: 
Listing decisions: Jan. 26, 2000; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for Newcomb's Snail From the Hawaiian Islands (65 FR 4162); Date: 
Listing decisions: Jan. 26, 2000; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for Blackburn's Sphinx Moth from the Hawaiian Islands (65 FR 4770); 
Date: Listing decisions: Feb. 1, 2000; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 0; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
[Empty]; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Plant Yreka Phlox from Siskiyou County, CA (65 FR 5268); Date: 
Listing decisions: Feb. 3, 2000; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 1; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
1; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Plant Thlaspi californicum (Kneel and Prairie Penny-Cress) From 
Coastal Northern California (65 FR 6332); Date: Listing decisions: Feb. 
9, 2000; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: 
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for Sidalcea keckii (Keck's checker-mallow) From Fresno and Tulare 
Counties, CA (65 FR 7757); Date: Listing decisions: Feb. 16, 2000; Peer 
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded: 
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 2; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule to List the Riparian 
Brush Rabbit and the Riparian, or San Joaquin Valley, Woodrat as 
Endangered (65 FR 8881); Date: Listing decisions: Feb. 23, 2000; Peer 
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded: 
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 2; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered Status for the Armored 
Snail and Slender Campeloma (65 FR 10033); Date: Listing decisions: 
Feb. 25, 2000; Peer reviewers: Asked: Listing decisions: 2; Peer 
reviewers: Responded: Listing decisions: 0; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: [Empty]; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Threatened Status for Holocarpha 
macradenia (Santa Cruz tarplant) (65 FR 14898); Date: Listing 
decisions: Mar. 20, 2000; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 4; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: 1; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for Chlorogalum purpureum (Purple Amole), a Plant From the South 
Coast Ranges of California (65 FR 14878); Date: Listing decisions: Mar. 
20, 2000; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: 
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 2; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule for Endangered Status for 
Four Plants From South Central Coastal California (65 FR 14888); Date: 
Listing decisions: Mar. 20, 2000; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for the Contiguous U.S. Distinct Population Segment of the Canada Lynx 
(65 FR 16052); Date: Listing decisions: Mar. 24, 2000; Peer reviewers: 
Asked: Listing decisions: 6; Peer reviewers: Responded: Listing 
decisions: 2; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 2; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Determination of Threatened Status 
for the Northern Idaho Ground Squirrel (65 FR 17779); Date: Listing 
decisions: Apr. 5, 2000; Peer reviewers: Asked: Listing decisions: 1; 
Peer reviewers: Responded: Listing decisions: 1; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: [Empty]; 
Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: 1[B].

Federal Register title and number: Threatened Status for the Santa Ana 
Sucker (65 FR 19686); Date: Listing decisions: Apr. 12, 2000; Peer 
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded: 
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 2; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List as Endangered the 
O'ahu 'Elepaio From the Hawaiian Islands and Determination of Whether 
Designation of Critical Habitat Is Prudent (65 FR 20760); Date: Listing 
decisions: Apr. 18, 2000; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 2; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List the Alabama 
Sturgeon as Endangered (65 FR 26438); Date: Listing decisions: May 5, 
2000; Peer reviewers: Asked: Listing decisions: 5; Peer reviewers: 
Responded: Listing decisions: 5; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 4; Peer reviewers' 
response: Disagree: Listing decisions: 1; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List the Short-Tailed 
Albatross as Endangered in the United States (65 FR 46643); Date: 
Listing decisions: Jul. 31, 2000; Peer reviewers: Asked: Listing 
decisions: 5; Peer reviewers: Responded: Listing decisions: 3; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List the Santa Barbara 
County Distinct Population of the California Tiger Salamander as 
Endangered (65 FR 57242); Date: Listing decisions: Sep. 21, 2000; Peer 
reviewers: Asked: Listing decisions: 8; Peer reviewers: Responded: 
Listing decisions: 6; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 6; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered and Threatened Wildlife 
and Plants: Threatened Status for the Colorado Butterfly Plant 
(Gaura neomexicana ssp. coloradensis) From Southeastern Wyoming, 
Northcentral Colorado, and Extreme Western Nebraska (65 FR 62302); 
Date: Listing decisions: Oct. 18, 2000; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Endangered Status for a 
Distinct Population Segment of Anadromous Atlantic Salmon (Salmo salar) 
in the Gulf of Maine (65 FR 69459); Date: Listing decisions: Nov. 17, 
2000; Peer reviewers: Asked: Listing decisions: 6; Peer reviewers: 
Responded: Listing decisions: 3; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 3; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule to List Nine Bexar 
County, Texas Invertebrate Species as Endangered (65 FR 81419); Date: 
Listing decisions: Dec. 26, 2000; Peer reviewers: Asked: Listing 
decisions: 9; Peer reviewers: Responded: Listing decisions: 0; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
[Empty]; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule for Endangered Status for 
Astragalus pycnostachyus var. lan osissimus (Ventura marsh milk-vetch) 
(66 FR 27901); Date: Listing decisions: May 21, 2001; Peer reviewers: 
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing 
decisions: 1; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 1; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Determination of Endangered status 
for Astragalus holmgreniorum (Holmgren milk-vetch) and Astragalus 
ampullarioides (Shivwits milk-vetch) (66 FR 49560); Date: Listing 
decisions: Sep. 28, 2001; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 3; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered Status for the Ohlone 
Tiger Beetle (Cicindela ohlone) (66 FR 50340); Date: Listing decisions: 
Oct. 3, 2001; Peer reviewers: Asked: Listing decisions: 3; Peer 
reviewers: Responded: Listing decisions: 3; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: 3; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Scaleshell Mussel (66 FR 51322); Date: Listing decisions: Oct. 
9, 2001; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers: 
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 2; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List Silene spaldingii 
(Spalding's Catchfly) as Threatened (66 FR 51597); Date: Listing 
decisions: Oct. 10, 2001; Peer reviewers: Asked: Listing decisions: 3; 
Peer reviewers: Responded: Listing decisions: 3; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List the 
Vermilion Darter as Endangered (66 FR 59367); Date: Listing decisions: 
Nov. 28, 2001; Peer reviewers: Asked: Listing decisions: 3; Peer 
reviewers: Responded: Listing decisions: 3; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: 3; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Rule To List the Mississippi 
Gopher Frog Distinct Population Segment of Dusky Gopher Frog as 
Endangered (66 FR 62993); Date: Listing decisions: Dec. 4, 2001; Peer 
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded: 
Listing decisions: 3; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 3; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered Status for Carex lutea 
(Golden Sedge) (67 FR 3120); Date: Listing decisions: Jan. 23, 2002; 
Peer reviewers: Asked: Listing decisions: 5; Peer reviewers: Responded: 
Listing decisions: 0; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: [Empty]; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Washington Plant Hackelia venusta (Showy Stickseed) (67 FR 
5515); Date: Listing decisions: Feb. 6, 2002; Peer reviewers: Asked: 
Listing decisions: 3; Peer reviewers: Responded: Listing decisions: 3; 
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing 
decisions: 3; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Endangered Status for the Buena 
Vista Lake Shrew (Sorex Ornatus Relictus) (67 FR 10101); Date: Listing 
decisions: Mar. 6, 2002; Peer reviewers: Asked: Listing decisions: 5; 
Peer reviewers: Responded: Listing decisions: 4; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: 1[B].

Federal Register title and number: Listing the Desert Yellowhead as 
Threatened (67 FR 11442); Date: Listing decisions: Mar. 14, 2002; Peer 
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded: 
Listing decisions: 2; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 1; Peer reviewers' response: 
Disagree: Listing decisions: 1; Peer reviewers' response: Neutral: 
Listing decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: 
Listing decisions: [Empty].

Federal Register title and number: Listing of the Chiricahua Leopard 
Frog (Rana chiricahuensis) (67 FR 40789); Date: Listing decisions: Jun. 
13, 2002; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers: 
Responded: Listing decisions: 4; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 4; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Southern California Distinct Vertebrate Population Segment of 
the Mountain Yellow-legged Frog (Rana muscosa) (67 FR 44382); Date: 
Listing decisions: Jul. 2, 2002; Peer reviewers: Asked: Listing 
decisions: 6; Peer reviewers: Responded: Listing decisions: 6; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
6; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for Ambrosia pumila (San Diego Ambrosia) from Southern California 
(67 FR 44372); Date: Listing decisions: Jul. 2, 2002; Peer reviewers: 
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing 
decisions: 1; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 1; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Carson Wandering Skipper (67 FR 51116); Date: Listing 
decisions: Aug. 7, 2002; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 3; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: 1; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Endangered Status 
for the Tumbling Creek Cavesnail (67 FR 52879); Date: Listing 
decisions: Aug. 14, 2002; Peer reviewers: Asked: Listing decisions: 5; 
Peer reviewers: Responded: Listing decisions: 5; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 5; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Critical habitat decisions; Date: 
Listing decisions: [Empty]; Peer reviewers: Asked: Listing decisions: 
[Empty]; Peer reviewers: Responded: Listing decisions: [Empty]; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
[Empty]; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Designation of Critical 
Habitat for the Rio Grande Silvery Minnow (64 FR 36274); Date: Listing 
decisions: Jul. 6, 1999; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 1; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
the Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum) (64 
FR 37419); Date: Listing decisions: Jul. 12, 1999; Peer reviewers: 
Asked: Listing decisions: 4; Peer reviewers: Responded: Listing 
decisions: 1; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: [Empty]; Peer reviewers' response: Disagree: 
Listing decisions: 1; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
the Huachuca Water Umbel (64 FR 37441); Date: Listing decisions: Jul. 
12, 1999; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: 
Responded: Listing decisions: 1; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 1; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
the Pacific Coast Population of the Western Snowy Plover (64 FR 68507); 
Date: Listing decisions: Dec. 7, 1999; Peer reviewers: Asked: Listing 
decisions: [B]; Peer reviewers: Responded: Listing decisions: [Empty]; 
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing 
decisions: [Empty]; Peer reviewers' response: Disagree: Listing 
decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
the Woundfin and Virgin River Chub (65 FR 4140); Date: Listing 
decisions: Jan. 26, 2000; Peer reviewers: Asked: Listing decisions: 0; 
Peer reviewers: Responded: Listing decisions: 0; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: [Empty]; 
Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Designation of Critical 
Habitat for the Spikedace and the Loach Minnow (65 FR 24328); Date: 
Listing decisions: Apr. 25, 2000; Peer reviewers: Asked: Listing 
decisions: 4; Peer reviewers: Responded: Listing decisions: 2; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of 
Critical Habitat for the Alameda Whipsnake (Masticop his lateralis 
euryxanthus) (65 FR 58933); Date: Listing decisions: Oct. 3, 2000; Peer 
reviewers: Asked: Listing decisions: [B]; Peer reviewers: Responded: 
Listing decisions: [Empty]; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: [Empty]; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of Critical 
Habitat for the San Diego Fairy Shrimp (Branchinecta sandiegoensis) (65 
FR 63438); Date: Listing decisions: Oct. 23, 2000; Peer reviewers: 
Asked: Listing decisions: 4; Peer reviewers: Responded: Listing 
decisions: 2; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: [Empty]; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: 2.

Federal Register title and number: Final Determination of 
Critical Habitat for the Coastal California Gnatcatcher (65 FR 63680); 
Date: Listing decisions: Oct. 24, 2000; Peer reviewers: Asked: Listing 
decisions: 4; Peer reviewers: Responded: Listing decisions: 0; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
[Empty]; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Designation of Critical Habit at for 
the Tidewater Goby (65 FR 69693); Date: Listing decisions: Nov. 20, 
2000; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers: 
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 1; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: 1.

Federal Register title and number: Final Designation of 
Critical Habitat for the Plant Lesquerella Thamnophila (Zapata 
Bladderpod) (65 FR 81182); Date: Listing decisions: Dec. 22, 2000; Peer 
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded: 
Listing decisions: 1; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: [Empty]; Peer reviewers' response: 
Disagree: Listing decisions: 1; Peer reviewers' response: Neutral: 
Listing decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: 
Listing decisions: [Empty].

Federal Register title and number: Final Designation of Critical 
Habitat for the Mexican Spotted Owl (66 FR 8530); Date: Listing 
decisions: Feb. 1, 2001; Peer reviewers: Asked: Listing decisions: 7; 
Peer reviewers: Responded: Listing decisions: 2; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of Critical 
Habitat for Peninsular Bighorn Sheep (66 FR 8650); Date: Listing 
decisions: Feb. 1, 2001; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 0; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: [Empty]; 
Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of Critical 
Habitat for the Alaska-Breeding Population of Steller's Eider (66 FR 
8850); Date: Listing decisions: Feb. 2, 2001; Peer reviewers: Asked: 
Listing decisions: 5; Peer reviewers: Responded: Listing decisions: 2; 
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing 
decisions: 2; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of Critical 
Habitat for the Spectacled Eider (66 FR 9146); Date: Listing decisions: 
Feb. 6, 2001; Peer reviewers: Asked: Listing decisions: 3; Peer 
reviewers: Responded: Listing decisions: 3; Listing decisions: [Empty]; 
Peer reviewers' response: Agree: Listing decisions: 2; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: 1.

Federal Register title and number: Final Designation of Critical 
Habitat for the Arroyo Toad (66 FR 9414); Date: Listing decisions: Feb. 
7, 2001; Peer reviewers: Asked: Listing decisions: 5; Peer reviewers: 
Responded: Listing decisions: 2; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: 2; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of 
Critical Habitat for the Zayante Band-Winged Grasshopper (66 FR 9219); 
Date: Listing decisions: Feb. 7, 2001; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
2; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of 
Critical Habitat for the Morro Shoulderband Snail (66 FR 9233); Date: 
Listing decisions: Feb. 7, 2000; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 2; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
1; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: 1.

Federal Register title and number: Final Determinations of Critical 
Habitat for the California Red-legged Frog (66 FR 14626); Date: Listing 
decisions: Mar. 13, 2001; Peer reviewers: Asked: Listing decisions: 5; 
Peer reviewers: Responded: Listing decisions: 2; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 2; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Designation of Critical 
Habitat for the Arkansas River Basin Population of the Arkansas River 
Shiner (66 FR 18002); Date: Listing decisions: Apr. 4, 2001; Peer 
reviewers: Asked: Listing decisions: 9; Peer reviewers: Responded: 
Listing decisions: 0; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: [Empty]; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of 
Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha 
bayensis) (66 FR 21450); Date: Listing decisions: Apr. 30, 2001; Peer 
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded: 
Listing decisions: 3; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 3; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of Critical 
Habitat for the Great Lakes Breeding Population of the Piping Plover 
(66 FR 22938); Date: Listing decisions: May 7, 2001; Peer reviewers: 
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing 
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 2; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: 1.

Federal Register title and number: Final Designation of Critical 
Habitat for the Riverside Fairy Shrimp (66 FR 29384); Date: Listing 
decisions: May 30, 2001; Peer reviewers: Asked: Listing decisions: 4; 
Peer reviewers: Responded: Listing decisions: 2; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 1; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: 1.

Federal Register title and number: Designation of Critical Habitat for 
the Spruce-fir Moss Spider (66 FR 35547); Date: Listing decisions: Jul. 
6, 2001; Peer reviewers: Asked: Listing decisions: 4; Peer reviewers: 
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Determination of Critical 
Habitat for Wintering Piping Plovers (66 FR 36138); Date: Listing 
decisions: Jul. 10, 2001; Peer reviewers: Asked: Listing decisions: 5; 
Peer reviewers: Responded: Listing decisions: 3; Listing decisions: 
[Empty]; Peer reviewers' response: Agree: Listing decisions: 3; Peer 
reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Final Designation of Critical 
Habitat for Sidalcea oregana var. calva (Wenatchee Mountains checker-
mallow) (66 FR 46536); Date: Listing decisions: Sep. 6, 2001; Peer 
reviewers: Asked: Listing decisions: 3; Peer reviewers: Responded: 
Listing decisions: 1; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 1; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Federal Register title and number: Final Designation of Critical 
Habitat for the Kootenai River Population of the White Sturgeon (66 FR 
46548); Date: Listing decisions: Sep. 6, 2001; Peer reviewers: Asked: 
Listing decisions: 4; Peer reviewers: Responded: Listing decisions: 2; 
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing 
decisions: 2; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Determination of Critical Habitat 
for the Oahu Elepaio (Chasiempis san dwichensis ibidis) (66 FR 63752); 
Date: Listing decisions: Dec. 10, 2001; Peer reviewers: Asked: Listing 
decisions: 3; Peer reviewers: Responded: Listing decisions: 3; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
3; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
the Quino Checkerspot Butterfly (Euphydryas editha quino) (67 FR 
18356); Date: Listing decisions: Apr. 15, 2002; Peer reviewers: Asked: 
Listing decisions: 5; Peer reviewers: Responded: Listing decisions: 0; 
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing 
decisions: [Empty]; Peer reviewers' response: Disagree: Listing 
decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Final Designation of Critical 
Habitat for the San Bernardino Kangaroo Rat (67 FR 19812); Date: 
Listing decisions: Apr. 23, 2002; Peer reviewers: Asked: Listing 
decisions: 9; Peer reviewers: Responded: Listing decisions: 6; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
5; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: 1; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Critical Habitat Designation 
for Chorizanthe robusta var. robusta (Robust Spineflower) (67 FR 
36822); Date: Listing decisions: May 28, 2002; Peer reviewers: Asked: 
Listing decisions: 3; Peer reviewers: Responded: Listing decisions: 3; 
Listing decisions: [Empty]; Peer reviewers' response: Agree: Listing 
decisions: 3; Peer reviewers' response: Disagree: Listing decisions: 
[Empty]; Peer reviewers' response: Neutral: Listing decisions: [Empty]; 
Peer reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
Chorizanthe pungens var. pungens (Monterey Spineflower) (67 FR 37498); 
Date: Listing decisions: May 29, 2002; Peer reviewers: Asked: Listing 
decisions: 4; Peer reviewers: Responded: Listing decisions: 4; Listing 
decisions: [Empty]; Peer reviewers' response: Agree: Listing decisions: 
4; Peer reviewers' response: Disagree: Listing decisions: [Empty]; Peer 
reviewers' response: Neutral: Listing decisions: [Empty]; Peer 
reviewers' response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Critical Habitat Designation 
for Chorizanthe robusta var. hartwegii (Scotts Valley Spineflower) (67 
FR 37336); Date: Listing decisions: May 29, 2002; Peer reviewers: 
Asked: Listing decisions: 3; Peer reviewers: Responded: Listing 
decisions: 3; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 3; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
the Carolina Heelsplitter (67 FR 44502); Date: Listing decisions: Jul. 
2, 2002; Peer reviewers: Asked: Listing decisions: 3; Peer reviewers: 
Responded: Listing decisions: 0; Listing decisions: [Empty]; Peer 
reviewers' response: Agree: Listing decisions: [Empty]; Peer reviewers' 
response: Disagree: Listing decisions: [Empty]; Peer reviewers' 
response: Neutral: Listing decisions: [Empty]; Peer reviewers' 
response: Unknown/ unclear: Listing decisions: [Empty].

Federal Register title and number: Designation of Critical Habitat for 
Newcomb's Snail (67 FR 54026); Date: Listing decisions: Aug. 20, 2002; 
Peer reviewers: Asked: Listing decisions: 6; Peer reviewers: Responded: 
Listing decisions: 6; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: 4; Peer reviewers' response: 
Disagree: Listing decisions: 2; Peer reviewers' response: Neutral: 
Listing decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: 
Listing decisions: [Empty].

Federal Register title and number: Designation of Critical Habit at for 
the Northern Great Plains Breeding Population of the Piping Plover (67 
FR 57638); Date: Listing decisions: Sep. 11, 2002; Peer reviewers: 
Asked: Listing decisions: 9; Peer reviewers: Responded: Listing 
decisions: 5; Listing decisions: [Empty]; Peer reviewers' response: 
Agree: Listing decisions: 5; Peer reviewers' response: Disagree: 
Listing decisions: [Empty]; Peer reviewers' response: Neutral: Listing 
decisions: [Empty]; Peer reviewers' response: Unknown/ unclear: Listing 
decisions: [Empty].

Federal Register title and number: Appalachian elktoe final critical 
habitat (67 FR 61016); Date: Listing decisions: Sep. 27, 2002; Peer 
reviewers: Asked: Listing decisions: 4; Peer reviewers: Responded: 
Listing decisions: 0; Listing decisions: [Empty]; Peer reviewers' 
response: Agree: Listing decisions: [Empty]; Peer reviewers' response: 
Disagree: Listing decisions: [Empty]; Peer reviewers' response: 
Neutral: Listing decisions: [Empty]; Peer reviewers' response: Unknown/ 
unclear: Listing decisions: [Empty].

Source: GAO analysis of U.S. Fish and Wildlife Service data.

[A] The Service's peer review policy does not apply to this decision 
because its most recent comment period opened before the policy became 
effective.

[B] Documentation unavailable.

[C] In one instance, the peer reviewer did not explicitly state 
agreement with the decision, but his comments do not bring up anything 
to suggest disagreement; rather, he provided only minor clarifications 
to the proposed decision document.

[End of table]

[End of section]

Appendix IV: The Nature of Scientific Controversy Surrounding Listing 
and Critical Habitat Decisions:

Based on discussions with Service officials, experts, and others 
knowledgeable about the Endangered Species Act, we found that several 
scientific disagreements over Service listing decisions have surfaced 
in recent years--mostly concerning whether the amount of information 
available at the time a decision is made suffices as a basis for a 
decision. Regarding critical habitat decisions, we found there has been 
scientific controversy surrounding whether the areas chosen as critical 
habitat is sufficiently defined or the overall information used to 
support the designation is adequate.

Listing:

Although we found that scientific disagreements surrounding listing 
decisions are not widespread, some of the controversy in recent years 
can be categorized as "science-related." Experts and others working 
with the Endangered Species Act that we spoke with identified 11 
species where there was significant scientific controversy surrounding 
the decisions to list the species.[Footnote 50] Our discussions with 
these individuals and a review of related Federal Register notices 
revealed that the most common scientific disagreements hinge on whether 
enough information was available to determine (1) whether the plants or 
animals under consideration qualified as a "species" as defined by the 
act, (2) the status of the species, or (3) the degree of threat that 
the species faces.

Critics of some listing decisions argued that the Service lacked 
information to determine whether the entity in question met the 
definition of a "species." The act defines a species as including "any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature."[Footnote 51] There is general agreement within the 
scientific community as to what constitutes a species and this has not 
been a major source of controversy in most listing decisions.[Footnote 
52] Disagreements typically arise over whether entities that are 
genetically, morphologically, or behaviorally distinct, but not 
distinct enough to merit the rank of species; qualify for protection as 
a distinct population segment (DPS). Under Service policy, to be 
identified as a DPS, a population segment must be both discrete and 
significant.[Footnote 53] In order to be discrete, the population must 
be markedly separate from other populations as a consequence of 
physical, physiological, ecological, or behavioral factors. If a 
population segment is considered discrete, its biological and 
ecological significance will then be considered. This consideration 
would include such factors as evidence that the loss of the population 
would result in a significant gap in the range of a species.

For example, disagreement surrounded the decision to list the 
population of the Sonoma County California tiger salamander, a large 
terrestrial salamander that is native to California. According to 
critics of the listing decision, the results of genetic testing did not 
show the salamander to be distinct, or discrete, from other populations 
of the California tiger salamander and therefore the population did not 
qualify as a DPS. The Service disagreed with the critics' 
interpretation of the data, stating that it believed the data referred 
to by the critics show the salamander to be distinct from other 
populations. The Service said that additional sampling and genetic work 
provided further substantial evidence of the genetic discreteness of 
the population. Additionally, the Service relied on the salamander's 
geographic isolation in making a determination that the population 
qualified for protection as a DPS.

Service policy also allows international governmental boundaries that 
delineate differences in the management of the species or its habitat 
to be used to determine if a species meets the discrete criterion. Some 
critics have argued against using international boundaries as a 
criterion to define a DPS. For example, critics of the decision to list 
the Arizona population segment of the cactus ferruginous pygmy-owl 
stated that the Service had no biological or regulatory authority to 
rely on international boundaries to draw a distinct population segment. 
The pygmy-owl is a small bird that occurs in the southwestern United 
States extending south into Mexico.

The Service recognizes that using international boundaries as a measure 
of discreteness may introduce a nonbiological element to the 
recognition of a distinct population segment. However, in its policy, 
the Service determined that it is reasonable to recognize units 
delimited by international boundaries when these units coincide with 
differences in the management, status, or exploitation of a species. In 
the case of the pygmy-owl, the Service reported the status of the owl 
in the United States is different from that in Mexico, and Arizona is 
the only area within which the government of the United States can 
affect protection and recovery for the species, so it was appropriate 
to protect the pygmy-owl as a DPS.

In its review of science and the Endangered Species Act, the National 
Research Council found that although it may be appropriate to delineate 
population segments based on political boundaries, there are no 
scientific reasons to do so as these boundaries often do not always 
coincide with major natural geographic boundaries.[Footnote 54] To 
provide more scientific objectivity in identifying distinct population 
segments, the Council recommended that the Service define a distinct 
population segment based solely on scientific grounds and limit the 
definition to segments of biological diversity containing the potential 
for a unique evolutionary future. Such segments would be determined by 
looking at such factors as a population's morphology (or physical 
appearance), behavior, genetics and geographical separation or 
isolation from other populations. Service officials agree that the 
inclusion of international boundaries in determining whether a 
population segment is discrete is sometimes undertaken as a matter of 
policy rather than science. However, the Service believes that using 
international borders is appropriate and necessary to comply with 
congressional intent. When there are international boundaries that 
coincide with differences in the management, status, or exploitation of 
a species, as described above, the Service stated that it is 
appropriate to recognize these borders when making a listing 
determination.

Scientific disagreement also surrounds the status of a species and the 
degree to which identified threats imperil it. When making a listing 
determination, the Service must evaluate a species' status, such as 
where it occurs or its population numbers, and the degree of threat it 
faces. The Service can determine that a species is threatened or 
endangered because of any of several factors such as the destruction of 
habitat, disease or predation, or other natural or manmade factors 
affecting the species' survival. Several of the scientific disputes 
that we encountered centered on how widespread the species in question 
is or how intense or significant the threats to the species are. For 
example, state agencies commenting on the proposal to list the Canada 
lynx said that the rule failed to demonstrate there were significant 
reductions to the species' population. Critics of the rule said that 
the scientific information--which was largely in the form of one 
comprehensive report--failed to assess lynx population size, status, 
and trends. The Service agreed that the available information 
concerning lynx population status, trends, and historic range is 
limited. However, after reviewing historic and current records for both 
Canada and the United States, sightings and track records, personal 
communications with lynx, hare, and forest ecology experts, and a 
review of all available literature, the Service said it was able to 
make several conclusions about the status of the lynx and found that it 
warranted listing as threatened.

Figure 5: Canada lynx:

[See PDF for image]

Note: The Canada lynx is a medium-sized cat that is adapted for hunting 
in the deep snow, and is known to prey primarily upon the snowshoe 
hare. In the contiguous United States, the distribution of the lynx is 
known from the Cascade and Rocky Mountain Ranges in the West, the 
western Great Lakes Region, and along the Appalachian Mountain Range of 
the northeastern portion of the country.

[End of figure]

Additionally, critics of the proposal to list the lynx claimed that the 
Service failed to demonstrate significant threats to the lynx's 
survival. For example, some stated that there is little evidence to 
support claims that current management practices, including timber 
harvesting and human access, adversely affect the lynx. While the 
Service acknowledged the lack of quantifiable information to determine 
whether some of the possible threats have or would have resulted in 
lynx declines, it concluded that the factor threatening lynx in the 
contiguous United States is the lack of guidance in existing federal 
land management plans for conservation of lynx and lynx habitat.

Service officials told us that it is important to consider both the 
threats and the status of the species when making a listing 
determination. For example, if only a species' population numbers were 
considered, it might appear to be abundant. Once the threats are 
factored in, however, the species might be threatened or endangered. On 
the other hand, if the species numbers are low but the species faces no 
considerable threats, it may not warrant protection under the act.

Critical Habitat:

Experts and others we spoke to identified 10 species where there was 
scientific controversy concerning the decision to designate critical 
habitat for them.[Footnote 55] For example, one concern is whether the 
area chosen as critical habitat is sufficiently defined or the overall 
information used to support the designation is adequate. Most of the 
identified species are widespread or occur in rapidly developing areas, 
such as southern California.

One of the major sources of disagreement is the way in which the 
Service identifies land to be included in critical habitat. The Service 
is required to designate as critical habitat those areas that it deems 
essential to a species' conservation and that may require special 
management considerations and protection. To reach this conclusion, the 
Service describes the species' habitat needs for conservation, or the 
species' "primary constituent elements," such as nesting or spawning 
grounds, feeding sites, or areas with specific geologic features or 
soil types. The Service's regulations also require the delineation of 
critical habitat using reference points and lines as found on standard 
topographic maps of the area. The Service uses written descriptions 
and/or maps to outline the areas it considers critical habitat for a 
listed species. In some cases, when maps are used to outline the area, 
parts of the area that fall within the mapped boundaries do not contain 
the primary constituent elements defined by the Service. For example, 
building structures, roads, or other major structures, such as an 
airport, may fall within the mapped boundaries of critical habitat, but 
are not suitable habitat. The Service maintains that these areas would 
not be considered critical habitat because they do not contain the 
primary constituent elements needed by the species. The Service stated 
that the precise mapping of critical habitat boundaries is impractical 
or impossible because the legal descriptions for these precise 
boundaries would be unwieldy.

The scientific controversy surrounding many of the critical habitat 
proposals that we reviewed stems from disagreement or confusion over 
which areas within the land outlined by the Service would count as 
critical habitat. Critics responding to these proposed rules often 
complained that the Service's definitions of primary constituent 
elements were vague or too broad to be useful. Additionally, several 
critics found the Service's assertion that only areas containing 
primary constituent elements would be considered critical habitat to be 
confusing, noting that it did not allow for a discrete boundary. In 
some instances, landowners voiced concerns that their property fell 
within proposed critical habitat boundaries even though the land did 
not seem to contain the primary constituent elements. For example, 
critics of the proposed critical habitat of the California red-legged 
frog stated that the Service's description of the critical habitat was 
vague and did not specifically identify the locations of the frog's 
habitat.

Figure 6: California red-legged frog:

[See PDF for image]

Note: The California red-legged frog is the largest native frog found 
in the western United States, and its critical habitat consisted of 
over 4 million acres in California.

[End of figure]

Critics of the rule stated that the proposal was confusing and that 
landowners would be forced to survey for the frog when undertaking a 
project. Such an action, they contended, is improper because it places 
the onus on private landowners to make sure their land does not contain 
critical habitat. The Service stated that due to the mapping unit it 
used it was not able to exclude all nonessential lands, such as roads. 
According to the Service, because these areas do not contain the 
primary constituent elements, federal agencies would not be required to 
consult the Service before taking action.

We also identified scientific disagreement stemming from designations 
made for species that require dynamic habitats. Designating critical 
habitat, which requires selecting a fixed habitat area, can be 
particularly difficult when a listed species may require a habitat that 
is dynamic, or changing, in nature. For example, lands that have been 
burned, cleared, or otherwise disturbed may be essential to a species 
or may be important for only certain periods of a species' life cycle. 
Many landscapes change because of natural causes, such as the age and 
make-up of a forest, and therefore it may be difficult to designate one 
particular area as habitat because the area may change over time, 
causing a change in the value of the habitat for the listed species. 
For example, scientific disagreement surrounded the critical habitat 
designation of the Southwestern willow flycatcher partly because of the 
bird's changing habitat requirements. Comments received on the proposed 
critical habitat rule stated that because riparian habitats are in a 
constant state of change, any boundaries defined as critical habitat 
would also be subject to change. Further, according to critics, the 
boundaries described by the Service did not meet regulatory 
requirements because they were difficult to interpret and could change 
seasonally. In the final rule designating critical habitat, the Service 
agreed that its original boundaries of critical habitat did not 
incorporate the dynamic nature of riparian systems. To resolve this 
issue, the Service stated that the final boundaries would be 
established in accordance with the 100-year flood zone, which would 
include most changes in stream flow and most seasonal changes.

Figure 7: Southwestern willow flycatcher:

[See PDF for image]

Note: The Southwestern willow flycatcher is a small bird found in the 
southwestern United States. The designation of the flycatcher consisted 
of more than 500 miles of river habitat in the southwest.


[End of figure]


In addition to controversy surrounding the identification of specific 
areas for critical habitat, many critics of the proposed rules that we 
reviewed argued that the Service had insufficient information on which 
to base its determination and that the Service should not designate 
critical habitat until the habitat requirements of the species could be 
better defined. Other critics objected to the Service's use of 
unpublished or otherwise unavailable data, stating that this type of 
information is inadequate to support critical habitat designations. 
Service officials said that they have been required to complete 
critical habitat decisions under short time frames because of court-
imposed deadlines. According to Service officials, given the resource 
and time constraints under which Service scientists work, scientists 
are often unable to collect new information and agree that the 
information available may be limited. Thus, the Service relies on both 
unpublished and published information and will use whatever scientific 
information it deems credible to help make a determination.

[End of section]

Appendix V: GAO Contact and Staff Acknowledgments:

GAO Contact:

Trish McClure (202) 512-6318:

Staff Acknowledgments:

In addition to the individual named above, Bob Crystal, Charlie Egan, 
Doreen Stolzenberg Feldman, Alyssa M. Hundrup, Nathan Morris, and Judy 
Pagano made key contributions to this report.

(360260):

FOOTNOTES

[1] The Department of the Interior, which has responsibilities for 
implementing the Endangered Species Act, has delegated its 
responsibility to the U.S. Fish and Wildlife Service, which established 
an endangered species program to implement the requirements of the act. 
The Department of Commerce, which has delegated its responsibilities to 
the National Marine Fisheries Service, is responsible for implementing 
the act for anadromous fish and most marine species. This report does 
not address the National Marine Fisheries Service program.

[2] U.S. General Accounting Office, Endangered Species Program: 
Information on How Funds Are Allocated and What Activities Are 
Emphasized, GAO-02-581 (Washington, D.C.: June 25, 2002).

[3] 16 U.S.C. 1533(b).

[4] 16 U.S.C. 1533(a)(1). The Service must also use these factors to 
determine if a species should be reclassified from endangered to 
threatened or vice versa and, in some instances, whether it should be 
delisted. The Service would not take into consideration these factors 
to delist a species because it is extinct. 

[5] The totals count a species or subspecies only one time, even if it 
occurs on the list more than once. A species or subspecies could be 
listed more than once if, for example, it was threatened in one part of 
its range and endangered in the rest of its range (these are known as 
"dual status species"). Similarly, a species or subspecies might occur 
on the list more than once if more than one distinct population segment 
of a species is listed. Distinct population segments are populations of 
vertebrate species that are discrete, for example, because they are 
geographically separated from other populations of the species.

[6] 16 U.S.C 1532(5). 

[7] 16 U.S.C. 1538(a)(1)(B), (C). The Endangered Species Act prohibits 
the taking of endangered, but not threatened, species. However, the act 
authorizes the Service to, by regulation, prohibit the taking of a 
threatened species. The Service has issued a regulation extending the 
take prohibitions to threatened species, except for those covered by a 
specific rule, exemption, or permit. See 50 C.F.R. 17.31.

[8] 16 U.S.C. 1532(19). 

[9] The Department of the Interior has recently issued a code of 
scientific conduct to be used by all Interior scientists--including the 
Service--to ensure that all research and analysis is conducted 
according to the highest standards of the scientific community.

[10] The Service uses the same process to delist or to reclassify a 
species from endangered to threatened or vice versa. Either action may 
be initiated through a petition or by the Secretary of the Interior. 

[11] The Service bases its determination on whether or not there is 
"substantial" information to proceed. Substantial information is 
defined by Service regulations as information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted. 50 C.F.R.  424.13(b).

[12] If the field office determines the petition is not warranted or is 
warranted but precluded, the Service will issue a notice in the Federal 
Register. This notice goes through a similar internal review process. A 
"warranted but precluded" finding is made when the petitioned action is 
precluded from immediate action by other, higher priority actions. The 
Service reevaluates warranted but precluded petitions every 12 months 
until either a proposed rule is issued or a "not warranted" finding is 
made.

[13] 67 Fed. Reg. 8452 (Feb. 22, 2002). 

[14] Office of Management and Budget, Memorandum for the President's 
Management Council, Sept. 20, 2001.

[15] U.S. General Accounting Office, Federal Research: Peer Review 
Practices at Federal Science Agencies Vary, GAO/RCED-99-99 (Washington, 
D.C.: Mar. 17, 1999).

[16] 59 Fed. Reg. 34270 (July 1, 1994). The Service is currently 
drafting interim peer review guidance that will provide objectives and 
procedures for implementing the 1994 peer review policy. It does not 
have an estimated date when it will issue permanent guidance.

[17] National Research Council, Strengthening Science at the U.S. 
Environmental Protection Agency: Research-Management and Peer-Review 
Practices (Washington D.C.: National Academy Press, 2000).

[18] Although the Service published 101 listing and critical habitat 
decisions during fiscal years 1999 through 2002, the decision to list 
as threatened the Lake Erie water snakes (64 Fed. Reg. 47126 (Aug. 30, 
1999)) is not included in this analysis because the comment period for 
the proposed rule opened before the Service's peer review policy became 
effective. 

[19] In two additional instances, documentation is also unavailable to 
indicate how many reviewers were asked but there is documentation that 
the number of respondents was greater than two. In these instances, we 
credited the Service with having solicited at least three peer 
reviewers. 

[20] Carroll, R., et al., Strengthening the Use of Science in Achieving 
the Goals of the Endangered Species Act: An Assessment by the 
Ecological Society of America. Ecological Applications, 6(1): 1-11 
(1996).

[21] National Research Council, Science and the Endangered Species Act 
(Washington D.C.: National Academy Press, 1995) 202.

[22] National Research Council, Genetic Status of Atlantic Salmon in 
Maine: Interim Report from the Committee on Atlantic Salmon in Maine 
(Washington D.C.: National Academy Press, 2002).

[23] Baltimore Gas and Electric Co. v. Natural Resources Defense 
Council, 462 U.S. 87, 103 (1983); Kleppe v. Sierra Club, 427 U.S. 390, 
412 (1976).

[24] Baltimore Gas and Electric Co., 462 U.S. at 105.

[25] San Luis v. Badgley, 136 F. Supp.2d 1136 (E.D.Cal. 2000).

[26] American Wildlands v. Norton, 193 F.Supp.2d 244 (D.D.C. 2002).

[27] The Endangered Species Act defines an endangered species and a 
threatened species as a species that is endangered or threatened 
throughout all "or a significant portion" of its range. 16 U.S.C. 
1532(6), (20). In fiscal year 2003, the Service lost another listing 
case on similar grounds. See Defenders of Wildlife v. Norton, 239 
F.Supp.2d 9 (D.D.C. 2002).

[28] Defenders of Wildlife v. Norton, 258 F.3d 1136 (9TH Cir. 2001).

[29] Southwest Center for Biological Diversity v. Norton, 2002 WL 
1733618, No. 98-934 (D.D.C. 2002).

[30] The range to be considered is not limited to areas within the 
United States. Defenders of Wildlife v. Norton, 258 F.3d at 1145.

[31] An additional 8 foreign species have been delisted, 7 due to 
recovery and 1 due to erroneous data. 

[32] Amendments to the act in 1978 restricted protection for distinct 
population segments to vertebrates. The species listed was the Florida 
population of the Bahama swallowtail butterfly, and thus the act, as 
amended, required that the species be removed from the endangered 
species list. See 49 Fed. Reg. 34501 (Aug. 31, 1984).

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

[34] In fiscal year 2003, a court overturned one additional critical 
habitat decision of the Service partly on the basis of issues related 
to the use of scientific data. See Home Builders Association of 
Northern California v. United States Fish and Wildlife Service, No. CV 
F 01-5722 AWI SMS (E.D.Cal. May 9, 2003). 

[35] Middle Rio Grande Conservancy District v. Babbitt, 206 F.Supp.2d 
1156 (D.N.M. 2000), aff'd, 294 F.3d 1220 (10TH Cir. 2002).

[36] National Association of Homebuilders v. Norton, 2001 WL 1876349, 
No. 00-CV-903 (D.Ariz. 2001).

[37] 16 U.S.C. 1533(a)(3). 

[38] 50 C.F.R. 424.12(a)(1)(ii). The regulation also provides that it 
is not prudent when the species is threatened by human activity and 
identification of the habitat can be expected to increase the threat.

[39] The Service's reasoning is based on its reading of the law, as 
implemented by its regulations. The benefit provided by a critical 
habitat designation is protection from federal agency actions--the act 
requires federal agencies to consult with the Service to ensure that 
any activities they carry out, fund, or authorize are not likely to 
result in the "destruction or adverse modification" of a critical 
habitat. 16 U.S.C. 1536(a)(2). The act also requires federal agencies 
to insure that their activities are not likely to "jeopardize the 
continued existence" of a listed species. Id. Service regulations 
define these two terms somewhat similarly. See 50 C.F.R. 402.02. The 
Service reasons that virtually any federal action that would destroy or 
adversely modify a species' critical habitat would also jeopardize the 
species' existence. The Service thus concludes that critical habitat 
designations do not provide additional conservation benefit beyond that 
already afforded all listed species. 

[40] Natural Resources Defense Council v. United States Department of 
the Interior, 113 F.3d 1121 (9TH Cir. 1997). See also Sierra Club v. 
United States Fish and Wildlife Service, 245 F.3d 434 (5TH Cir. 2001).

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

[42] The Service's approach was premised on the idea that designating 
critical habitat does not provide protection to a species beyond the 
protection already provided by listing the species. See footnote 39.

[43] In the 1997 final rule designating critical habitat for the 
southwestern willow flycatcher, the Service stated that it was unable 
to provide the level of analysis and completeness that it has in 
previous rules because of a court imposed deadline--the result of the 
Service's previous determination that critical habitat provided little 
additional benefit to the species. Even with a minimal level of 
analysis and completeness, the Service noted that it had to disrupt 
significant work at the field office, regional, and national levels in 
order to provide the resources to complete the rule. See 62 Fed. Reg. 
39129 (July 22, 1997). 

[44] See 64 Fed. Reg. 31871 (June 14, 1999).

[45] U.S. General Accounting Office, Endangered Species Program: 
Information on How Funds Are Allocated and What Activities Are 
Emphasized, GAO-02-581 (Washington, D.C.: June 25, 2002).

[46] We focused on the U.S. Fish and Wildlife Service even though it 
shares responsibility with the National Marine Fisheries Service for 
implementing the Endangered Species Act because the Fish and Wildlife 
Service has lead responsibility, as of April 2003, for 1,237 of the 
1,263 listed species in the United States. The two Services share 
responsibility for 6 species. 

[47] The List of Endangered and Threatened Wildlife and Plants created 
under the act identifies listed species as either domestic or foreign. 
The Service's Endangered Species Program deals primarily with domestic 
species found in the U.S. and U.S. territories, while the International 
Affairs Program of the Service deals primarily with foreign endangered 
species--including issuing permits for their import or export and 
representing the Service under the Convention on International Trade in 
Endangered Species (CITES). 

[48] Energy and Water Development Appropriations Act of 1980, Pub. L. 
No. 96-69, 93 Stat. 437, 449 (1979).

[49] 16 U.S.C. 1538(a)(1)(B), (C). The Endangered Species Act 
prohibits the taking of endangered, but not threatened, species. 
However, the act authorizes the Service to, by regulation, prohibit the 
taking of a threatened species. The Service has issued a regulation 
extending the take prohibitions to threatened species, except for those 
covered by a specific rule, exemption, or permit. 50 C.F.R. 17.31. 

[50] In total, these experts identified 25 species where they believed 
there was significant scientific controversy regarding listing the 
species. We limited our review to only those species that had been 
formally listed within the past 10 years; we excluded 14 species from 
our review either because the species was not listed or because it was 
listed prior to 1993. 

[51] 16 U.S.C. 1532(16).

[52] While there are differing definitions for the term species, it is 
often defined as groups of interbreeding natural populations that are 
reproductively isolated from other such groups.

[53] 61 Fed. Reg. 4722 (Feb. 7, 1996).

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

[55] In total, these experts identified 13 species where there was 
scientific controversy concerning their critical habitat designation. 
We limited our review to species that had critical habitat formally 
designated within the past 10 years; we excluded 3 species from our 
review either because the species critical habitat was not yet 
finalized, or because it was designated prior to 1993.

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