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Testimony:

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

United States General Accounting Office:

GAO:

For Release on Delivery Expected at 9:30 a.m. EDT:

Wednesday, June 25, 2003:

Endangered Species:

Despite Consultation Improvement Efforts in the Pacific Northwest, 
Concerns Persist about the Process:

Statement of Barry T. Hill, Director Natural Resources and Environment:

GAO-03-949T:

GAO Highlights:

Highlights of GAO-03-949T, a testimony before the Subcommittee on 
Fisheries, Wildlife, and Water, Senate Committee on Environment and 
Public Works 

Why GAO Did This Study:

The Endangered Species Act requires all federal agencies to consult 
with the Fish and Wildlife Service or the National Marine Fisheries 
Service (the Services) to determine the effect that the activities 
they conduct, permit, or fund may have on threatened or endangered 
species. In particular, federal agencies (action agencies) must ensure 
that their activities do not jeopardize the continued existence of any 
listed species or adversely modify critical habitat. After several 
fish species in the Pacific Northwest were listed in the late 1990s, 
the Services consultation workload increased significantly in Idaho, 
Oregon, and Washington, and the Services were unable to keep up with 
requests for consultation. As a result, many proposed activities were 
delayed for months or years. Even under normal workload conditions, 
the consultation process can be difficult, in part because decisions 
about how species will be protected must often be made with uncertain 
scientific information using professional judgment. 

This testimony is based on ongoing work requested by the Chairman of 
the Senate Subcommittee on Fisheries, Wildlife, and Water. It 
addresses (1) efforts to improve the consultation process, by the 
Services and by four action agencies in Idaho, Oregon, and Washington; 
and (2) concerns with the process expressed by officials at the 
Services and action agencies, and by nonfederal parties. 

What GAO Found:

The Services and four action agencies in the Pacific Northwest have 
taken a number of actions to improve the efficiency of the 
consultation process. For example, the Services have increased their 
staff levels in some offices, and the National Marine Fisheries 
Service has opened additional offices to facilitate consultations at 
remote locations. The Services have also increased their use of 
consultations that cover multiple activities that are similar in 
nature, thus minimizing the need to consult on individual activities. 
Another improvement, called streamlining, uses interagency teams that 
work together on multiple activities; these teams work to improve 
communication, reach agreement on the potential effects of activities 
early in the process, and resolve problems that arise to ensure that 
proposed activities will not negatively affect listed species. In 
addition, the Services and the action agencies have worked, both 
individually and together, to develop and refine additional guidance 
and training for staff conducting consultations.

Despite the improvement efforts, Service and action-agency officials, 
as well as nonfederal parties, continue to have concerns with the 
consultation process. A key problem that lengthens the consultation 
process is the lack of a shared understanding between the Services and 
action agencies on what constitutes a complete biological assessment. 
According to Service and action-agency officials, this can lead the 
Services to make multiple requests for information from the action 
agencies about an activity until the Services are confident that a 
biological assessment adequately addresses the effects of the proposed 
activity on the species. Multiple requests for information are also 
sometimes due to Service biologists being unfamiliar with action-
agency programs, partly owing to high staff turnover. In addition, 
action-agency officials noted that the Services and the action 
agencies attempt to ensure that biological assessments are bullet 
proof by making them so comprehensive that they will be immune to any 
legal challenges. Action-agency officials also expressed a concern 
that Service and action-agency roles are not clearly defined. For 
example, according to action-agency officials, Service officials 
sometimes make judgments about whether an activity should occur or 
how it should occur, rather than just judging its potential effects on 
species. In response, Service officials commented that the purpose of 
the consultation process is to discuss the potential effects of 
proposed actions early in the planning process and to explore options 
that will avoid jeopardy. Service and action-agency officials also 
identified a lack of sufficient resourcesparticularly at the Services
as a key concern, stating that staff-level increases have not kept 
pace with their growing workloads. Among the nonfederal parties, 
permit applicants expressed concerns about the time and expense 
required for the consultation process. Environmental groups said land 
management decision-making processes, such as consultation, are often 
closed to them until after final decisions are made, and that the only 
way they can make their voices heard is through administrative appeals 
and lawsuits.

www.gao.gov/cgi-bin/getrpt?GAO-03-949T.

To view the full testimony, 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]

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss preliminary results from our 
ongoing review of the consultation process required by the federal 
Endangered Species Act, particularly as applied in the Pacific 
Northwest. Under the act, before federal agencies may conduct, permit, 
or fund activities in areas where species listed as threatened or 
endangered may be present, the agencies must consult with the 
Department of the Interior's Fish and Wildlife Service or the 
Department of Commerce's National Marine Fisheries Service (the 
Services). Such consultation is intended to allow federal agencies to 
ensure that the activities are not likely to jeopardize the species' 
continued existence or adversely modify their critical habitat. 
Consultation has particularly significant effects in the Pacific 
Northwest because numerous species there are threatened with 
extinction, including the Northern spotted owl, various salmon species, 
and the bull trout.

Federal activities that agencies may need to consult about in the 
Pacific Northwest range from operating hydroelectric dams on the 
Columbia River--which provide about 60 percent of the federal 
electricity-generating capacity in the region--to harvesting timber, to 
dredging navigation channels. Responsible agencies--or "action 
agencies"--include the Department of the Interior's Bureaus of Land 
Management and Reclamation, the Department of Agriculture's Forest 
Service, and the Army Corps of Engineers, to name a few. Typical 
nonfederal activities that these agencies permit, which may also 
require consultation, include grazing, timber harvesting, and mining on 
federal lands, and building structures such as piers and docks on 
private property. Nonfederal parties, such as private landowners, 
developers, or local governments, typically conduct these permitted 
activities.

If an action agency determines that an activity may affect a listed 
species, the agency may initiate either an informal or a formal 
consultation with the appropriate Service. In an informal consultation-
-which could be as simple as a brief telephone call--the Service and 
action agency may agree that the activity is unlikely to negatively 
affect the species and that formal consultation is not necessary. On 
the other hand, if the Service or agency initially believes or finds 
after informal consultation that the activity may have negative 
effects, the action agency initiates formal consultation by submitting 
a biological assessment of the activity and its potential effects. If 
negative effects appear likely and formal consultation is required, the 
Service has 135 days to formally consult and document, in a biological 
opinion, whether the activity could jeopardize the species' continued 
existence and what actions, if any, are required to mitigate those 
effects. Avoiding jeopardy caused by federally conducted or approved 
activities is important to achieving the overall purpose of the 
Endangered Species Act, which is to conserve species that are at risk 
of extinction.

Even under normal workload conditions, the consultation process can be 
difficult, in part because decisions about how species will be 
protected must often be based on uncertain scientific information and 
on professional judgment. Decisions resulting from consultations are 
sometimes challenged in lawsuits, and responding to the lawsuits can 
increase workload and delay activities. These problems were magnified 
in the late 1990s, after several fish species in the Pacific Northwest 
were listed as threatened or endangered. The new listings increased the 
Services' consultation workload significantly in Idaho, Washington, and 
Oregon, and the Services were unable to respond quickly. As a result, 
many activities that federal agencies proposed were delayed for months 
or years. Action agencies and others criticized the consultations as 
unduly burdensome.

Our testimony, which is based on ongoing work that you requested, 
addresses (1) key efforts to improve the consultation process in the 
Pacific Northwest and (2) concerns about the consultation process 
identified by officials from the Services and other federal agencies, 
and by nonfederal parties, including environmental advocacy groups. To 
gather their views on consultations, we administered a structured 
questionnaire to 61 officials with the Services and the Army Corps of 
Engineers, the Bureaus of Land Management and Reclamation, and the 
Forest Service in Idaho, Oregon, and Washington. We conducted 133 
additional interviews with agency officials in headquarters and field 
offices and with nonfederal parties; we also visited various locations 
in the three states. Prior to issuing this testimony, we shared a 
preliminary draft with the agencies we reviewed and incorporated their 
comments as appropriate. We conducted our work in accordance with 
generally accepted government auditing standards. Our final report, 
which we anticipate issuing in late August 2003, will present 
additional information about the adequacy of agency databases that are 
used to maintain key information on individual consultations. Our 
report will also provide Service and action-agency perspectives on 
improvements made to the consultation process.

Summary:

Efforts by the Services and action agencies to improve the consultation 
process have focused on increasing the number of staff that conduct 
consultations, improving the efficiency of the process, and providing 
additional training and guidance for consultation staff and nonfederal 
parties. For example, both of the Services have increased their staff 
levels in certain offices, and the National Marine Fisheries Service 
has established new offices, among other things, to facilitate 
consultations at remote locations. To improve efficiency, the Services 
have increased their use of consultations that address multiple 
activities, minimizing the need to consult on individual ones. For 
example, one consultation in western Oregon covers ten types of routine 
activities in three national forests and two Bureau of Land Management 
districts. Another improvement, called streamlining, uses interagency 
teams for consultations to improve communications among the Services 
and action agencies on multiple activities, get agreement on the 
potential effects of an activity faster, and help resolve problems that 
arise. Finally, the Services and the action agencies have worked, both 
individually and together, to develop and refine additional guidance 
and training for staff conducting consultations. Interagency efforts 
include refresher training on the streamlining process and development 
of Web sites that provide staff with preparation instructions for, and 
examples of, biological assessments and other key consultation 
documents.

Despite the improvement efforts, Service and action-agency officials, 
as well as nonfederal parties, continue to have concerns with the 
consultation process. A key problem that lengthens the consultation 
process is that the Services and action agencies do not always share an 
understanding of what constitutes a complete biological assessment. 
According to Service and action-agency officials, this can lead to 
multiple requests by the Services for information from the action 
agencies about an activity until the Service is satisfied that a 
biological assessment adequately assesses the effects of a proposed 
activity on listed species. Multiple requests for information also 
sometimes stem from Service biologists' unfamiliarity with action-
agency programs, partly owing to high staff turnover. In addition, 
action-agency officials noted that the Services and the action agencies 
attempt to ensure that biological assessments are "bullet proof" by 
making them so comprehensive that they will be immune to any legal 
challenges. Action-agency officials also expressed a concern that 
Service and action-agency roles are not clearly defined. For example, 
according to action-agency officials, Service officials sometimes make 
judgments about whether an activity should occur or how it should 
occur, rather than simply judging its potential effects on species. In 
response, Service officials commented that the purpose of the 
consultation process is to discuss the potential effects of proposed 
actions early in the planning process and to explore options that will 
avoid jeopardy. Service and action-agency officials also identified a 
lack of sufficient resources--particularly at the Services--as a key 
concern, stating that staffing increases have not kept pace with their 
growing workloads. Among the nonfederal parties, permit applicants 
expressed concerns about the time and expense required for the 
consultation process. For example, the average permit processing time 
for 19 permits issued in 2002 for building private docks or for similar 
activities on Lake Washington (near Seattle) was about 2 years and 
added about $10,000 to applicants' costs. Environmental groups said 
land management decision-making processes, such as consultation, are 
often closed to them until after final decisions are made, and that the 
only way to make their voices heard is through administrative appeals 
and lawsuits.

Background:

The Endangered Species Act prohibits the "taking" of any threatened or 
endangered species of animal and defines "take" as to harass, harm, 
pursue, shoot, wound, kill, trap, hunt, capture, or collect, or to 
attempt to engage in any such conduct. Federal agencies must comply 
with prohibitions against taking species listed as threatened or 
endangered and must consult with the Services to determine the effect, 
if any, that their activities may have on listed species. In 
particular, federal agencies must ensure that their activities do not 
jeopardize the continued existence of any listed species, or destroy or 
adversely modify habitat designated as critical for those species. If 
any proposed activities will jeopardize a species or adversely modify 
its critical habitat, the Services will identify alternatives to those 
activities.

The Fish and Wildlife Service and the National Marine Fisheries Service 
together have responsibility for implementing the Endangered Species 
Act. The Fish and Wildlife Service is responsible for the protection of 
terrestrial, or land-dwelling, and freshwater animal and plant species. 
Endangered or threatened terrestrial animals in the Pacific Northwest 
include the Northern spotted owl, the grizzly bear, and the Canada 
lynx. The Service also manages land in national wildlife refuges and, 
like other land-managing agencies, must consult with its own biologists 
in determining the effect of its activities on listed species. The 
National Marine Fisheries Service is responsible for the protection of 
ocean-dwelling species and anadromous species, such as salmon.[Footnote 
1]

Several federal agencies manage land in the Pacific Northwest or 
conduct activities there, many of which require consultation under the 
Endangered Species Act.

* The Army Corps of Engineers (Corps) supports navigation of the 
nation's waterways by maintaining and improving channels. In Idaho, 
Oregon, and Washington, the Corps also operates 12 dams and reservoirs 
that provide flood control, generate hydroelectric power, protect fish 
and wildlife, and support recreation and other activities. In addition, 
the Corps issues permits to parties who wish to conduct activities in 
lakes, streams, and wetlands; these activities include dredging or 
filling waterways, and building structures ranging from docks and 
driveways to housing developments.

* The Bureau of Land Management manages about 28 million acres of 
federal land in Idaho, Oregon, and Washington. The agency issues 
permits for and manages such activities as livestock grazing, 
recreation, mining, and timber harvests; many of these activities 
require consultation.

* The Bureau of Reclamation's core mission is to deliver water and 
hydroelectric power throughout 17 western states. In the Pacific 
Northwest, it operates and maintains 28 dams and administers 54 
reservoirs. Its primary activities that require consultation are dam 
construction, operation, and maintenance.

* The Forest Service manages about 45 million acres of national forest 
in Idaho, Oregon, and Washington. The agency issues permits for, 
manages, and must consult on activities such as timber harvesting; 
recreation; livestock grazing; mining; environmental restoration; and 
rights of way for road construction, ski areas, and access to private 
land.

Improvement Efforts Have Focused on Staffing Resources, Efficiency, 
Guidance, and Training:

The Services and action agencies have increased the number of staff 
that conduct consultations. Specifically, the Fish and Wildlife Service 
increased the number of biologists in some of its offices in order to 
address their growing consultation workload. The National Marine 
Fisheries Service also increased staff levels at several offices, and 
opened several new field offices in 2001 to facilitate consultations at 
remote locations. Previously, the geographic distance between the 
locations made consultations difficult. In addition, some action 
agencies have found it useful to provide funding for one or more 
Service biologist positions to specifically work on, or give priority 
to, that action agency's consultations. For example, the Corps' Seattle 
district provides funding for a Fish and Wildlife Service biologist 
position. The district gives the Service a list of upcoming activities, 
and the Corps-funded Service biologist works on consultations for those 
activities.

To improve the efficiency of the consultation process, the Services 
have increased their use of consultations that address multiple 
activities, minimizing the need to consult on individual activities. 
These multiple-activity consultations, often referred to as 
programmatics, sometimes allow action agencies to approve activities 
that meet predetermined criteria without additional consultation. 
Programmatics may cover repetitive activities with similar effects, 
such as road and recreation trail maintenance, or a variety of 
activities affecting a particular area or group of species, such as 
forest fuels treatment, grazing, and watershed restoration projects 
conducted in bull trout habitat. Multiple-activity consultations may 
also cover these types of activities in a specific region, as in three 
western Oregon national forests and two Bureau of Land Management 
districts, where one consultation covers ten categories of routine 
activities.

Another improvement effort, streamlining, is intended to reduce the 
time spent on consultations by facilitating early planning, up-front 
coordination, and communication between the Services and action 
agencies. Under the streamlined process, officials work on interagency 
teams that meet regularly to discuss upcoming action-agency activities 
and review draft biological assessments. The belief is that with 
improved communication, more trust will develop between the Services 
and action agencies, and problems will be easier to resolve when they 
arise. Accordingly, for formal consultations that go through 
streamlining, the Services, the Bureau of Land Management, and the 
Forest Service set a goal of reducing the time allotted from the 
current legal requirement of 135 days to 60 days. Streamlining is 
currently used for most Bureau of Land Management and Forest Service 
activities in the Pacific Northwest. In addition, the Bureau of Land 
Management and the Forest Service are involved in a pilot process in 
some locations in Idaho and Oregon. In this process, the action 
agencies have been delegated the authority to certify that certain 
activities meeting pre-established criteria are unlikely to adversely 
affect listed species and can therefore proceed.

Both the Services and the action agencies have provided additional 
training and guidance to improve understanding of the consultation 
process and one another's roles and authority, including the following.

* The Services have developed refresher training on the consultation 
process, have prepared guidance on how to prepare a high-quality 
biological assessment, and provide continuing professional education on 
evaluating the biological effects of proposed activities.

* The Services, the Bureau of Land Management, and the Forest Service 
have developed an interagency Web site with links to the Endangered 
Species Act and its regulations and to guidance on streamlined 
consultation procedures. They plan to add examples of biological 
assessments and other documents as guidance for teams using streamlined 
procedures.

* The National Marine Fisheries Service currently provides links on its 
Web site to biological opinions and to a tracking system that shows the 
status of consultations. The Service also plans to launch a separate 
Web site this year to provide guidance to action-agency biologists and 
others on preparing biological assessments.

* The Army Corps of Engineers has developed Web sites to inform 
citizens about the permitting and consultation processes. These Web 
sites include instructions on applying for permits for activities such 
as pier and dock construction.

Several action-agency officials told us that they also sometimes use 
site visits to educate stakeholders (e.g., the Services, the action 
agency, and interested nonfederal parties) about a proposed activity. 
An Army Corps official, for example, said the Corps has taken Service 
biologists out on dredges to increase the biologists' understanding of 
dredging operations and their likely effect on species. In another 
example, a Forest Service biologist convened on-site meetings of all 
the stakeholders in a consultation about the proposed development plan 
for a ski area in Washington. These stakeholders (representatives of 
the Forest Service, the Fish and Wildlife Service, the ski area, the 
state, and a local hunting group) walked through the proposed 
development areas and discussed ways to prevent the development from 
adversely affecting the species involved. This on-site collaboration, 
according to the Forest Service biologist, gained agreement by all 
stakeholders on how the development could avoid adversely affecting 
listed species. It also may have forestalled litigation by the state 
and the local hunting group, which had previously opposed the proposed 
development plan.

Despite Improvement Efforts, Concerns Remain about Consultations:

Despite ongoing efforts to improve consultations, Service and action-
agency officials continue to have concerns about the consultation 
process. The absence of shared criteria for complete biological 
assessments, Service biologists' lack of knowledge about action-agency 
programs, and fear of litigation were frequently mentioned by Service 
and action-agency officials as significant concerns. In addition, 
according to some action-agency officials, Service and action-agency 
roles are not clearly defined, which leads to Service officials 
sometimes recommending changes to agencies' proposed activities beyond 
what action agencies think is necessary to minimize the negative effect 
on species. In response, Service officials commented that the purpose 
of the consultation process is to discuss the potential effects of 
proposed actions early in the planning process and to explore options 
that will avoid jeopardy. Service and action-agency officials were also 
concerned about a lack of sufficient resources, particularly at the 
Services. Among nonfederal parties, concerns were expressed about the 
time and cost required for consultations and about a perceived lack of 
openness and effectiveness in the consultation process.

Officials Do Not Have a Common Understanding of the Information Needed 
in Biological Assessments:

A key problem that lengthens the consultation process is that the 
Services and action agencies do not always have an understanding of 
what constitutes a complete biological assessment--that is, one that 
provides sufficient scientific information to determine an activity's 
effect on a species. Because of this lack of common criteria, and 
because complete scientific information is rarely available for listed 
species, officials often rely on their judgment and experience to 
determine the likely effect of activities on species. Some Service 
officials we interviewed said that they often do not receive 
sufficiently detailed information from the agencies in a biological 
assessment about the activity so that they can independently assess its 
likely effects on the species. They therefore request additional 
information and do so until they are satisfied that the assessment 
adequately addresses the effects of the proposed activity on the 
species. On the other hand, some action-agency officials said they 
believe that the Services require much more detailed information than 
is necessary to determine whether they agree with the action agency's 
assessment of the activity's effects. Many Service and action-agency 
officials said that these requests for additional information and 
associated discussions can delay the consultation process and cause 
frustration.

Disagreements over the detail needed in biological assessments are 
exacerbated because many officials perceive the consultation process as 
personality-driven. Specifically, Service and action-agency officials 
said that sometimes officials on both sides of the issue take 
unyielding positions on consultations, either on behalf of the activity 
or the listed species, and they waste time arguing. In these instances, 
the process takes much longer to complete than when participants are 
able to compromise. In addition, action-agency officials said some 
Service biologists--particularly new ones--can be overly zealous in 
their efforts to protect species and may be unlikely to compromise; at 
the same time, action agencies do not always involve the Services early 
enough in consultation, making the process difficult. In other cases, 
officials told us that some individuals that are key to the 
consultation process lack the interpersonal or negotiation skills 
necessary to resolve conflicts that arise in the process. One action-
agency official noted, "there is no room in the process for zealots--on 
either side.":

National Marine Fisheries Service officials recognize the need for 
better guidance regarding the level of detail required in biological 
assessments and are developing training for their biologists, along 
with a Web-based template and checklist for action agencies. Service 
officials told us that they believe deadlocked disagreements over 
biological assessments are less common than they used to be, and when 
they do occur it is sometimes because issues are not elevated to 
management for resolution when they should be. Furthermore, they 
believe that increased staff, planning, and field offices have helped 
alleviate these issues.

Service Biologists Are Unfamiliar with Action-Agency Programs:

Service and action-agency officials agreed that Service biologists are 
sometimes unfamiliar with action-agency programs and activities and 
that the time required for Service biologists to learn about activities 
and how they may negatively affect species can lengthen the 
consultation process. High turnover among Service biologists is one 
factor that contributes to their lack of familiarity with action-agency 
activities. In one example, Service biologists did not understand the 
process of mining for gold in streams until they were given a field 
demonstration. Allowing the Service biologists to see the mining 
equipment in operation helped facilitate the consultation process 
because the biologists did not have to ask numerous clarifying 
questions to understand the activity's potential impact. Although site 
visits can help familiarize biologists with action-agency activities, 
because of resource limitations, Service and action-agency officials 
said they are unable to make site visits a routine part of 
consultation.

Service and Action-Agency Officials Are Concerned about Litigation:

Service and action-agency officials alike cited the fear of litigation 
as a significant concern that lengthens the consultation process. Since 
1999, the Services have been affected by at least 19 lawsuits involving 
consultations in courts with jurisdiction in Idaho, Oregon, and 
Washington. For example, according to a Forest Service official in 
Oregon, at least two dozen timber projects have awaited consultation 
for 2 years because a court ruled that the National Marine Fisheries 
Service used insufficient scientific data to support a determination 
that natural vegetation growth would adequately mitigate the effects of 
logging.[Footnote 2] This decision invalidated more than 20 existing 
biological opinions for timber harvests, which will await formal 
consultation until the National Marine Fisheries Service implements a 
strategy for addressing the court's concerns. In addition, both 
Services must respond to notices of lawsuits and agreements that settle 
lawsuits.

According to action-agency officials, such court rulings have led 
Service officials to apply the same level of scrutiny to all 
activities, regardless of the level of risk they pose to listed 
species. Action-agency officials believe that the Services attempt to 
ensure that all biological assessments are "bullet proof"--or so 
comprehensive that they are impervious to legal challenge--and this 
adds to the time and cost of consultation. As a result, Service 
officials apply similar scrutiny to activities that are less likely to 
have long-term negative impacts, such as trail maintenance or habitat 
restoration, as they do to activities with much higher potential for 
long-term negative effects, such as mining. Some action-agency 
officials recognized that this fear of litigation similarly causes them 
to put more details in their biological assessments than they otherwise 
would. Furthermore, Interior officials expressed concerns that existing 
litigation, and the risk of future litigation, may be interfering with 
the consultation process and diverting to litigation a disproportionate 
amount of the funds intended for Endangered Species Act implementation.

Service and Action-Agency Roles in Consultations Are Not Clearly 
Defined:

According to action-agency officials, Service and action-agency roles 
are not clearly defined. Some action-agency officials expressed concern 
that Service biologists sometimes make judgments about whether an 
activity should occur, rather than just its potential effects on 
species. Action-agency officials told us they believe decisions about 
activities' design should be left to the action agencies. The 
Department of the Interior's Assistant Secretary for Water and Science 
recently discussed this concern in an address to Bureau of Reclamation 
employees. The Assistant Secretary asserted that it is the Bureau's 
responsibility to determine how its proposed activities should be 
designed and the Services' responsibility to issue biological opinions 
on those activities' potential impact on species. He emphasized that 
the Bureau should not include components in its proposed activities 
that it believes are not necessary for avoiding negative effects to 
listed species, simply because the Services want those components 
included. The Bureau's Commissioner also issued a policy statement 
reiterating the Assistant Secretary's position that it is the Bureau's 
responsibility--not that of the Services--to define its proposed 
activities and to provide a biological assessment that is based on the 
best available science. The policy states that the Bureau should rely 
on the Services to respond with a scientifically sound biological 
opinion--which may include a determination that an activity will 
adversely affect a listed species. In that event, Bureau and Service 
officials would work together to develop acceptable measures for 
mitigating the activity's detrimental effects. In commenting on a draft 
of this statement, Service officials said that the purpose of the 
consultation process is to discuss the potential effects of proposed 
actions early in the planning process and to explore options that will 
avoid jeopardy:

Insufficient Staffing Resources Are a Key Concern:

Service and action-agency officials identified a lack of sufficient 
resources--particularly at the Services--as a key concern that limits 
timely completion of consultations. Service and action-agency officials 
are concerned that although staff levels have increased in recent 
years, staffing has not kept pace with their growing workloads. For 
example, data from the Fish and Wildlife Service's office in Portland, 
Oregon, show that while the office's budget for consultations increased 
approximately 40 percent between fiscal years 1998 and 2002, the number 
of consultations for which each biologist was responsible increased 
about 90 percent. One consequence of this disparity between resources 
and workload is that the Services cannot always meet regulatory 
timeframes. Furthermore, officials said that there is an upward trend 
in the types of activities that require consultation. For example, as a 
result of a court ruling in the mid-1990s, the Bureau of Land 
Management and the Forest Service must consult with the Services on 
their land management plans. This ruling created a substantial new 
workload for the agencies and the Services, and they are still working 
to complete the consultations in some areas.

Some Nonfederal Parties Are Concerned about the Length and Cost of the 
Permitting Process:

Nonfederal parties wishing to conduct activities requiring consultation 
because they involve federal permits or licenses also expressed 
concerns about the time and cost required for the process. When 
nonfederal parties apply to an action agency for a permit or license, 
they must go through reviews required by the action agency for 
approval. These reviews can include consultation. Action agencies 
either prepare (sometimes at the applicant's expense), or ensure that 
applicants have arranged for the preparation of, a biological 
assessment; the agency then reviews the biological assessment and 
requests additional information as needed. According to a Service 
official, economic impacts and the scope of the proposed activity are 
considered during consultation, in addition to whether or not the 
activity will jeopardize listed species or adversely modify critical 
habitat.

In one example, a private landowner waited about 3 years--including 
time for Forest Service permit review and consultation-related 
activities--for a permit that would allow him to cross Forest Service 
land to harvest his privately owned timber stand. To cross the Forest 
Service land, the landowner had to improve an old logging road and 
construct about half a mile of new road, which he did himself, work 
valued at about $9,000; he also reimbursed the Forest Service about 
$6,800 for the costs to prepare a biological assessment for the 
consultation. Further, according to the landowner, when he was finally 
able to harvest the timber its market value had dropped by one-third to 
one-half from its anticipated value. The Forest Service biologist who 
worked on this consultation noted that it was affected by numerous 
complicating factors, including a court decision barring the Fish and 
Wildlife Service from issuing biological opinions on activities 
affecting spotted owls and a new policy for dealing with private 
landowners.

In another example, the average time for the Corps to process 19 
permits issued in 2002 for building private docks or for similar 
activities on Lake Washington (near Seattle) was about 2 years. This 
time included the consultation time spent by each Service, as well as 
the time spent by the action agency to help the permit applicant 
complete a biological assessment and meet other Corps requirements for 
the permit. For these permits, consultation added about $10,000 to 
nonfederal parties' costs. Officials from the Services noted that these 
types of delays were not uncommon when bull trout and salmon were first 
listed because so many activities, many of them in urban areas, were 
affected. A National Marine Fisheries Service official stated that 
these listings created an "automatic backlog" of consultations that 
overwhelmed them. A Fish and Wildlife Service official also noted that 
the delays were at least partly due to their unfamiliarity with the 
effects that building docks could have on bull trout. The bull trout 
was the first aquatic species that they had to deal with in the Pacific 
Northwest.

Environmental Groups Are Concerned that Consultations Lack Openness and 
Effectiveness:

Environmental advocacy groups also expressed concerns with the 
consultation process. Representatives of two environmental advocacy 
groups said land management decision-making processes, such as 
consultation, are often closed to them until after final decisions are 
made, and that the only way they can make their voices heard is through 
administrative appeals and lawsuits. One representative expressed 
concern that the streamlining process lacks transparency and 
compromises the Services' role of scrutinizing action-agency 
activities. Service officials noted that the Endangered Species Act 
does not require public participation or public comment in the 
consultation process. One environmental group's representative 
expressed concern that the Services do not have a comprehensive view of 
a species' status across its range and therefore are limited in their 
ability to determine the potential effects of proposed activities. For 
example, the bull trout may or may not be significantly affected by an 
activity in one stream, but unless the Services know the trout's status 
across its range, they cannot make informed decisions about how an 
activity will affect the species as a whole.

Mr. Chairman, this completes my prepared statement. I would be happy to 
respond to any questions that you or Members of the Subcommittee may 
have.

GAO Contacts and Staff Acknowledgments:

For further information about this testimony, please contact me at 
(202) 512-3841. Trish McClure, Jennifer Duncan, Jaelith Hall-Rivera, 
Cynthia Norris, Anthony Padilla, Katherine Raheb, Jeff Rueckhaus, 
Rebecca Shea, and Pamela Tumler also made key contributions to this 
statement.

FOOTNOTES

[1] Anadromous species live part of their lives in fresh water and part 
in saltwater. 

[2] Pacific Coast Federation of Fishermen's Associations v. National 
Marine Fisheries Service, 265 F.3d 1028 (9th Cir. 2001).