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Report to Congressional Requesters:

March 2004:

ENDANGERED SPECIES:

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

[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-04-93]:

GAO Highlights:

Highlights of GAO-04-93, a report to congressional requesters 

Why GAO Did This Study:

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

What GAO Found:
The data available on consultations and their timeliness varied between 
the Services, but neither agencys databases captured all the elements 
needed to reliably determine the length of the process. Data from the 
National Marine Fisheries Service and the Fish and Wildlife Services 
Portland field office (the Services other five offices did not have 
comparably reliable data) show that about 40 and 30 percent of their 
nearly 1,220 and 330 consultations, respectively, exceeded established 
time frames (for consultations completed during fiscal years 2001 
through 2003). However, these data do not include the significant time 
and effort sometimes spent discussing a project before consultation 
officially began. As a result, the Services cannot discern the level of 
effort devoted to Endangered Species Act consultations. 

Federal agencies have taken several steps to make the consultation 
process smoother and more efficient. Specifically, agencies took steps 
to facilitate collaboration, reduce workload, and improve the 
consistency and transparency of the process. While many officials 
praised these efforts, it is unclear whether the efforts are achieving 
their intended performance improvements, for they have not been 
comprehensively evaluated.

Despite the improvement efforts, federal officials and nonfederal 
parties still have concerns about the consultation process. Workload 
has been a persistent concern for the Services and other agencies 
despite staff increases in recent years. Another major concern is that 
the Services and agencies sometimes disagree about the extent to which 
consultation is necessary. Some agency officials believe that the 
Services require more than is necessary under the Endangered Species 
Act, while officials at the Services contend that they are simply 
fulfilling their responsibilities. Nonfederal parties also have 
concerns. Parties seeking to conduct activities that are authorized by 
a federal agency are concerned about the time and resources expended to 
comply with the process. Environmental advocates are concerned that the 
process may not effectively protect species. 

What GAO Recommends:

Because many concerns about the consultation process center on its 
timeliness, GAO recommends that the Services improve the data about the 
time and effort to complete the process. GAO further recommends that 
the Services and other federal agencies work together to clarify the 
process and evaluate improvement efforts. In commenting on a draft of 
this report, the agencies generally concurred with our findings and 
recommendations. 

www.gao.gov/cgi-bin/getrpt?GAO-04-93.

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

[End of section]

Contents:

Letter: 

Results in Brief: 

Background: 

Completeness of Data Maintained on Consultations Varied between the 
Services but Did Not Capture the Entire Process: 

Improvement Efforts Have Focused on Collaboration, Workload, and 
Information Sharing, but Their Effectiveness Is Unclear: 

Federal Concerns about the Consultation Process Center on Workload and 
Process Requirements: 

Nonfederal Parties' Concerns Depended on Their Expectations of the 
Consultation Process: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendixes:

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Comments from the Department of the Interior: 

GAO Comments: 

Appendix III: Comments from the Department of the Army: 

GAO Comment: 

Appendix IV: Comments from the National Oceanic and Atmospheric 
Administration: 

GAO Comments: 

Appendix V: Comments from the Forest Service: 

GAO Comments: 

Appendix VI: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Staff Acknowledgments: 

Figures: 

Figure 1: Agencies Must Balance the Use of Natural Resources with the 
Protection of Species: 

Figure 2: Columbia River Basin: 

Figure 3: Workers Install Electric Fish Barrier Fabric on Canal 
Diversion Structure: 

Figure 4: NMFS Timeliness for Formal and Informal Consultations: 

Figure 5: FWS Portland Office Timeliness for Formal and Informal 
Consultations: 

Figure 6: Streamlined Consultation Process Seeks to Bypass the 
Iterative Cycle of Information Requests: 

Figure 7: Site Visit to Culvert Replacement Project on Forest Service 
Land: 

Figure 8: FWS Portland Office Streamlined Formal Consultations: 

Figure 9: FWS Portland Office Nonstreamlined Formal Consultations: 

Figure 10: FWS Portland Office Streamlined Informal Consultations: 

Figure 11: FWS Portland Office Nonstreamlined Informal Consultations: 

Figure 12: NMFS Streamlined Formal Consultations: 

Figure 13: NMFS Nonstreamlined Formal Consultations: 

Figure 14: NMFS Streamlined Informal Consultations: 

Figure 15: NMFS Nonstreamlined Informal Consultations: 

Figure 16: Replacement of Creosote-Treated Wood Pilings with Steel 
Pilings: 

Figure 17: Numerous Docks and Piers Line the Shoreline of Lake 
Washington: 

Figure 18: Caving Streambed along a Railway Posed a Safety Hazard: 

Abbreviations: 

BLM: Bureau of Land Management:

FWS: U.S. Fish and Wildlife Service:

NMFS: National Marine Fisheries Service:

NOAA: National Oceanic and Atmospheric Administration:

Letter March 19, 2004:

The Honorable Michael Crapo: 
Chairman, Subcommittee on Fisheries, Wildlife, and Water: 
Committee on Environment and Public Works: 
United States Senate:

The Honorable Max Baucus: 
United States Senate:

More than 80 species listed as threatened or endangered under the 
Endangered Species Act make their home in the vast waterways and 
millions of acres of federally managed lands in the northwestern United 
States. Federal agencies are directed by the act to utilize their 
authorities to conserve such species. In addition, species and habitat 
must be protected against adverse effects of federal activities, such 
as operating hydroelectric dams, thinning vegetation to prevent 
wildfires, grazing livestock, dredging waterways, and constructing or 
maintaining docks and piers. Deciding how best to protect threatened 
and endangered species, and assessing the extent to which federal 
activities should be altered or restricted, has taken time and energy 
to work through and has generated considerable controversy and 
frustration.

Before authorizing, funding, or carrying out activities, federal 
agencies must determine whether these activities might affect a listed 
species or habitat identified as critical to its survival. If effects 
are likely, the agencies must consult with the U.S. Fish and Wildlife 
Service or the National Marine Fisheries Service--collectively referred 
to as the Services--to ensure that the activities will not jeopardize a 
species' continued existence or adversely modify its designated 
critical habitat. To initiate the consultation process, an agency 
submits a biological assessment or similar document to the Services 
that describes the proposed activity and its likely effects on listed 
species and their habitat. Consultation usually ends with the Services 
issuing their own assessments of the likely effects, including any 
recommendations or requirements to mitigate these effects. Although 
there are set time frames for completing consultations, federal 
agencies and the Services often discuss proposed activities' designs, 
effects, mitigation, documentation, or other matters in 
"preconsultation" sessions that occur before these time frames begin. 
In this report, when we say the "entire consultation process," we 
include preconsultation.

From 1997 through 2000, 25 species were listed for protection under the 
Endangered Species Act in the northwestern United States, and 
frustration levels with the entire consultation process increased. 
These newly listed species included bull trout, several species of 
salmon, and other animals that inhabit large geographic ranges. With 
the new species listings, the consultation workload expanded beyond 
what the Services could handle in a timely manner. As a result, many 
proposed activities were delayed--some for months, others for years--
because of the requirement to consult. The Services were criticized for 
these delays. Officials with the Services acknowledged these delays and 
attributed them to a lack of resources to address the expanded workload 
and the learning curve associated with dealing with newly listed 
species; however, the officials noted that the process is essential in 
protecting species.

As requested, in this report we (1) assess the federal data available 
on consultations and determine the number completed and their 
timeliness for fiscal years 1998 through 2003; (2) identify steps taken 
by the Services and other federal agencies to improve the consultation 
process; and (3) discuss concerns of federal officials and nonfederal 
parties about the process. As you requested, we limited our review to 
the U.S. Fish and Wildlife Service (FWS), the National Marine Fisheries 
Service (NMFS), the U.S. Army Corps of Engineers, the Bureau of Land 
Management, the Bureau of Reclamation, and the Forest Service (the 
latter four agencies are often referred to as "action agencies") and to 
consultations conducted in Idaho, Montana, Oregon, and Washington. We 
obtained electronic data on consultations from the Services and tested 
the reliability of the data. We also administered--via telephone or in 
person--a comprehensive survey to a nonprobability sample[Footnote 1] 
of 66 officials in the Services and action agencies in the four states, 
and we conducted open-ended interviews with 143 officials. Our survey 
and interviews elicited officials' perceptions about consultations 
based on their experiences since the late 1990s. We also interviewed 44 
nonfederal parties, including applicants--parties seeking federal 
authorization or funds to conduct an activity subject to consultation-
-and representatives of environmental advocacy and industry groups. We 
conducted our work in accordance with generally accepted government 
auditing standards. (See app. I for details on the scope and 
methodology of our review.):

Results in Brief:

The data available on consultations completed and their timeliness for 
fiscal years 1998 through 2003 varied between the Services, but neither 
agency's databases captured all the elements of the entire consultation 
process needed to reliably determine the timeliness of consultations 
that occurred in the four states we reviewed during this period. NMFS 
implemented a regional electronic database in January 2001 that tracks 
key elements of the consultation process for all of its field offices 
that conduct consultations in the four states. We obtained data from 
this system from January 2001 through fiscal year 2003. Before this 
time, NMFS did not maintain electronic data that included dates 
necessary for determining timeliness. FWS implemented an electronic 
database only recently--in March 2003--for Idaho, Oregon, and 
Washington, but not Montana. Before then, most FWS field offices either 
did not track consultations data electronically or did not include key 
elements in their databases such as the date on which a consultation 
was initiated. Consequently, we were able to obtain sufficiently 
reliable electronic data comparable to that from NMFS from only one FWS 
field office--Portland, Oregon--for fiscal years 2001 through 2003. (Of 
the six FWS field offices in the four states we reviewed, Portland 
accounted for approximately 20 percent of all consultations completed 
in fiscal year 2002.) Based on data from NMFS' regional system and FWS' 
Portland field office, the Services conducted almost 1,550 
consultations during fiscal years 2001 through 2003 with the four 
action agencies in Idaho, Montana, Oregon, and Washington. While most 
of these 1,550 consultations were completed within established time 
frames, about 40 percent of the consultations exceeded established time 
frames, in some cases by more than a year. However, these time frames 
do not capture the sometimes significant amount of preconsultation time 
spent discussing a project before the consultation is considered to 
have officially begun. Some officials with the Services and action 
agencies said that time spent in preconsultation can be valuable by 
resulting in projects that have fewer effects on species and habitat. 
The Services have just begun to capture data on actions taken during 
preconsultation but the Services do not identify the level of resources 
expended or routinely assess how much time is spent in preconsultation. 
Without complete and reliable data on the entire consultation process, 
federal managers and congressional decision makers cannot have an 
accurate picture of how long the process takes to complete, how much it 
costs, and whether resources are adequate to meet workload demands. In 
addition, the Services cannot confirm or deny complaints about the 
lengthiness of the entire consultation process or know where the most 
significant problems arise.

The Services and action agencies have taken steps, in three general 
categories, to make the consultation process smoother and more 
efficient, although the effectiveness of these efforts is unclear. 
First, the Services and action agencies have taken steps to facilitate 
collaboration between staff at the Services and action agencies so that 
disagreements can be resolved before they slow down the consultation 
process. Second, the Services and action agencies have developed 
approaches to reduce the consultation workload, such as including 
multiple related activities in a single consultation. And third, the 
Services and action agencies have taken steps to increase the 
consistency and transparency of the consultation process, such as 
providing interagency training courses and posting guidance and 
information on agency Web sites. Although many officials praised these 
various efforts for helping to reduce workload, promoting better 
working relationships, and protecting species better, in some cases, it 
is difficult to ascertain their effectiveness because the Services have 
not comprehensively evaluated them. While the Services and agencies 
have conducted some analyses of how the new processes are working and 
what problems have occurred, the Services and agencies have not 
assessed whether the processes reduce workload and the time to complete 
the entire consultation process. Given resource constraints, it is 
imperative that resources invested in process changes be justified by 
gains in process efficiency while maintaining or enhancing 
effectiveness.

Despite efforts to improve the consultation process, officials with the 
Services and action agencies still have concerns centering on two key 
issues. First, officials at the Services and action agencies are 
concerned about workload. While staff levels have increased in recent 
years, those increases have been outpaced by increases in the number 
and complexity of consultations. Second, officials at the Services and 
action agencies sometimes disagree about the extent to which 
consultation is necessary. Many officials recognized that the 
consultation process benefits species. However, some action agency 
officials said they feel pressured by the Services--and by the fear of 
litigation--to seek consultation, regardless of the likely effects of 
an activity on listed species, including in situations where they feel 
consultation is unnecessary. In addition, action agency officials said 
the Services sometimes require detailed documentation for activities 
that are unlikely to adversely affect listed species or that will 
benefit the species in the long term, activities for which these 
officials believe less detail should suffice. The officials said that 
detailed documentation of such activities causes the consultation 
process to take longer than it should. For their part, officials at the 
Services said that the need to consult and the level of documentation 
are dictated by the Endangered Species Act, its implementing 
regulations, the Administrative Procedure Act, and the outcomes of 
court decisions. They believe they are appropriately fulfilling their 
consultation responsibilities to protect species, including clearly 
documenting and explaining the logic supporting their decisions. The 
time and effort required to do so, however, adds to an already heavy 
consultation workload.

Nonfederal parties' concerns depended on their expectations of the 
process. Nonfederal parties wanting permits to conduct activities in 
federally managed areas told us that consultation adds inordinately to 
the time and cost of the permitting process. Before the additional 
species listings in the late 1990s, the permitting process for 
activities such as constructing or modifying private docks on Lake 
Washington generally took only 2 or 3 months and averaged about 5 
percent of construction costs, according to a Lake Washington 
homeowners' representative. Now that consultation is conducted as a 
part of the permitting process, this representative said that 
permitting costs have increased to about 33 percent of construction 
costs. Furthermore, the average processing time for 19 permits issued 
for such activities in 2002 was about 2 years. Conversely, 
environmental advocates expressed concern over the Services' ability to 
fulfill their legal obligation to effectively protect species because 
of a lack of resources and a limited understanding of the status of 
species across their ranges. For example, some advocates said that the 
Services do not have sufficient information on species' conditions to 
be able to accurately determine whether federal activities may 
jeopardize species. Finally, applicants and environmental advocates 
alike were concerned that the process lacks transparency. Some 
applicants said they found the process confusing; both applicants and 
environmental advocates said they were frustrated by not having a voice 
in decisions made in the process.

We are making recommendations to the Secretary of the Interior and the 
Under Secretary of Commerce for Oceans and Atmosphere to improve the 
information used to manage the consultation process. We are also 
recommending that the Secretaries of the Interior and Defense, the 
Under Secretary of Commerce for Oceans and Atmosphere, and the Chief of 
the Forest Service work together to improve the transparency and 
consistency of the consultation process. These recommendations include 
reaching agreement on the amount of specificity needed in biological 
assessments and on the requirements of the process.

The Departments of the Army and the Interior, the National Oceanic and 
Atmospheric Administration (NOAA), and the Forest Service provided 
comments on a draft of this report and generally concurred with our 
findings and recommendations. The agencies also provided overall 
comments and technical clarifications in some areas in this report. We 
have addressed these comments and clarifications where appropriate. The 
agencies' comment letters and our responses are presented in appendixes 
II through V.

Background:

The purpose of the Endangered Species Act is to conserve threatened and 
endangered species and the ecosystems upon which they depend. Under the 
act, the U.S. Fish and Wildlife Service is responsible for protecting 
terrestrial, or land-dwelling, and freshwater animal and plant species; 
the National Marine Fisheries Service is responsible for protecting 
ocean-dwelling species and anadromous species, such as salmon.[Footnote 
2] The act prohibits, without the appropriate exemption, the "taking" 
of any threatened or endangered species of fish or wildlife and defines 
"take" as to harass, harm, pursue, shoot, wound, kill, trap, hunt, 
capture, or collect, or to attempt any such conduct. Federal agencies 
must comply with prohibitions against taking species that are listed as 
threatened or endangered and must consult with the Services to 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. However, "taking" a species that is 
incidental to the purpose of a federal action and does not cause 
jeopardy or adverse modification may be permitted and, in practice, 
often is. Thus, the consultation process allows some activities to take 
place that may involve the incidental take of listed species, and helps 
federal agencies avoid adversely affecting listed species and 
designated critical habitat. Federal agencies are also directed by the 
Endangered Species Act to utilize their authorities to conserve 
threatened and endangered species.

When a federal agency determines that an activity it intends to 
authorize, fund, or carry out may affect a listed species, the agency 
may initiate either an informal or a formal consultation with FWS or 
NMFS.[Footnote 3] Informal consultation occurs when the agency has 
determined that an activity may affect but is not likely to adversely 
affect listed species or critical habitat. If the Services agree, 
typically by issuing a letter of concurrence with the agency's 
determination, then the agency may proceed with the activity without 
further consultation. Although there is no regulatory deadline for 
completing an informal consultation, each Service's policy is to do so 
within 30 days of receiving a complete biological assessment or similar 
document. This assessment describes, among other things, the proposed 
activity and its likely effects on any listed species or habitat that 
may be present in the area of the proposed activity.

On the other hand, if an action agency initially determines that an 
activity is likely to adversely affect a species, the action agency is 
required to initiate formal consultation by submitting a biological 
assessment or similar document.[Footnote 4] The Services have up to 135 
days (with the option for the Services and action agencies to agree to 
extensions) to conduct the consultation and document, in a biological 
opinion, whether the activity is likely to jeopardize the species' 
continued existence or adversely modify its designated critical habitat 
and what actions, if any, are required to mitigate that 
impact.[Footnote 5],[Footnote 6] (Such "jeopardy opinions" are not 
common; in fiscal year 2003, for example, the Services issued only one 
biological opinion that identified proposed activities as potentially 
jeopardizing threatened and endangered species in the four states 
included in our review.) The Services may postpone the start of the 
135-day time frame until they have sufficient information from the 
action agency on which to base their opinions. This is also true for 
the 30-day time frame for informal consultations.

In the northwestern United States, the consultation process is a 
prominent part of federal land management and federally authorized or 
funded activities because of the region's combination of large areas of 
federal land and significant numbers of listed species. Endangered or 
threatened species in this region include the northern spotted owl, 
grizzly bear, Canada lynx, bull trout, and various salmon species, or 
"runs." Following are four of the many federal agencies that carry out 
activities in the Northwest that may require consultation under the 
Endangered Species Act.[Footnote 7]

* The U.S. Army Corps of Engineers (Corps) supports navigation of the 
nation's waterways by maintaining and improving channels. Also, in 
Idaho, Montana, Oregon, and Washington, the Corps operates about a 
dozen multipurpose 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 
for the discharge of dredge or fill material into U.S. waters; such 
discharges may occur in connection with dredging or building docks and 
other structures.

* The Bureau of Land Management (BLM) manages about 36 million acres of 
federal land in Idaho, Montana, Oregon, and Washington. The agency 
manages and issues permits for activities such as livestock grazing, 
recreation, mining, and timber harvesting.

* The Bureau of Reclamation delivers water and hydroelectric power 
throughout 17 western states. In the Northwest, it operates and 
maintains 28 dams and administers 54 reservoirs.

* The Forest Service manages about 62 million acres of national forest 
in Idaho, Montana, Oregon, and Washington. The agency issues permits 
for and manages 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.

Balancing species' needs with natural resource uses--both of which are 
among these federal agencies' missions--can be difficult, as activities 
can vary widely in their effects on listed species (see fig. 
1).[Footnote 8]

Figure 1: Agencies Must Balance the Use of Natural Resources with the 
Protection of Species:

[See PDF for image]

[End of figure]

The consultation workload for these agencies in the northwestern United 
States has increased dramatically since the late 1990s, largely as a 
result of the many species added to the list of species protected under 
the Endangered Species Act. The number of protected species increased 
more than 60 percent in Idaho, Montana, Oregon, and Washington. Several 
of these species have habitats that cover large areas of the Northwest. 
For example, in 1998 the Fish and Wildlife Service listed the bull 
trout, which occurs in major river basins across the four states, 
including the Columbia and Klamath basins, as well as in coastal areas 
such as Puget Sound in Washington. In 1999, the National Marine 
Fisheries Service listed nine subspecies of salmon and steelhead that 
occur primarily in these river basins in Oregon and Washington. Figure 
2 shows the far reach of just the Columbia River Basin.

Figure 2: Columbia River Basin:

[See PDF for image]

[End of figure]

Any activity occurring in or near these waterways and their smaller 
tributaries may require consultation. Consequently, federal agencies 
are consulting on many more activities than were subject to 
consultation before the 1998 and 1999 fish listings in order to protect 
listed species and their designated critical habitats.

Although actions taken by nonfederal parties may be subject to the 
consultation process, their direct involvement in the process varies 
from none to substantial. For some parties, such as individuals who 
apply for permits to graze livestock on federal lands, the consultation 
process may be invisible because the federal agency goes through 
consultation before it issues the permit. For other parties, such as 
individuals who apply for permits to construct private boat docks or 
corporations that apply for permits to harvest timber, the process is 
not only visible, but often requires their participation. In these 
cases, the individual or corporate permit applicant generally takes on 
the responsibility of preparing the biological assessment needed to 
initiate consultation.

Activities can vary widely in their effects on listed species, although 
relatively few are found to potentially jeopardize a species' continued 
existence. For example, U.S. Army Corps of Engineers projects that may 
require consultation range from issuing permits for construction or 
modification of private docks to dredging operations in harbors and 
rivers. Similarly, Forest Service projects can range from trail 
maintenance to timber harvesting, and "decommissioning" or destruction 
of roads. Obviously, these projects vary in their complexity and the 
possible severity of their effects on species and their habitats. 
However, identifying the type and extent of effects on species often 
remains a difficult task for many of these activities because, as we 
reported in an August 2003 report, only limited information is 
frequently available on species' ranges, biologies, and habitat 
needs.[Footnote 9]

Mitigative actions that agencies or nonfederal parties may include in 
their projects in order to minimize impacts to species and their 
habitats also vary widely. For example, limitations may be placed on 
the time of year when a project can be conducted. In addition, 
mitigation may entail altering the methods used for conducting a 
project, such as leaving buffer zones around known nesting areas 
undisturbed. Fish ladders and fish barriers are other common mitigation 
measures employed to protect fish from the harmful effects of dams and 
other structures (see fig. 3).

Figure 3: Workers Install Electric Fish Barrier Fabric on Canal 
Diversion Structure:

[See PDF for image]

[End of figure]

Completeness of Data Maintained on Consultations Varied between the 
Services but Did Not Capture the Entire Process:

The data available on consultations completed from fiscal years 1998 
through 2003 varied between the Services, but neither of the Services' 
databases captured the entire consultation process. (Throughout this 
report, these data should be considered in the context of their 
associated error rates as explained in app. I.) The most comparable 
data we were able to obtain for the Services were for fiscal years 2001 
through 2003 and included consultations for all NMFS offices in the 
four states and for FWS' Portland field office. These data showed that 
the Services completed about 1,550 consultations, about 60 percent of 
which were completed on time. The remainder exceeded established time 
frames by intervals ranging from a few days to more than a year. 
However, our timeliness analysis underestimated the length of time it 
actually took to complete the entire consultation process because, in 
part, the Services' data did not include the sometimes significant 
amount of time that the Services and action agencies spent in 
preconsultation discussions.

Services Differed in the Data They Maintained on Consultations:

NMFS and FWS differed in the completeness of data available on 
consultations. NMFS has a regional database that includes all 
consultations conducted by NMFS offices in Idaho, Oregon, and 
Washington;[Footnote 10] this database contains the two dates needed to 
calculate the timeliness of consultations (i.e., their compliance with 
established completion time frames). These two dates are the date the 
consultation was initiated and the date it was completed. We obtained 
NMFS electronic data on consultations for most of fiscal years 2001 
through 2003.[Footnote 11] Before 2001, most NMFS field offices did not 
maintain readily available electronic data or did not consistently 
capture key dates needed to measure timeliness, such as the date on 
which a consultation was initiated. FWS implemented a three-state 
database in March 2003 for Idaho, Oregon, and Washington; before then, 
only its Portland field office maintained comparably reliable 
electronic data for fiscal years 2001 through 2003.[Footnote 12] 
Therefore, we obtained FWS data for fiscal years 2001 through 2003 for 
only the Portland field office. Of the six FWS offices in the four 
states we reviewed, the Portland office accounted for approximately 20 
percent of all consultations completed in fiscal year 2002. We reported 
on similar data management issues in January 2001 about FWS' field 
office in Carlsbad, California.[Footnote 13]

Based on NMFS regional data and FWS Portland field office data, the 
Services completed almost 1,550 formal and informal consultations 
during fiscal years 2001 through 2003 with the four action agencies in 
Idaho, Montana, Oregon, and Washington. NMFS data accounted for more 
than 1,200 of the consultations; about 80 percent were informal, and 70 
percent of all the NMFS consultations were conducted with the U.S. Army 
Corps of Engineers. Similarly, the majority of FWS Portland 
consultations were informal (more than 65 percent). For the total 
number of the Portland office's consultations, more than 30 percent 
were conducted with each of three agencies--the Forest Service, BLM, 
and the Corps. The Bureau of Reclamation accounted for the least number 
of consultations--23 and 4 with NMFS and FWS, respectively.

Nearly Forty Percent of the Consultations Exceeded Time Frames:

Our timeliness analysis revealed that nearly 40 percent of the 1,548 
consultations completed by the Services exceeded established time 
frames. For consultations completed during fiscal years 2001 through 
2003, NMFS exceeded time frames 41 percent of the time, and FWS 
Portland exceeded time frames 31 percent of the time. Both Services 
missed established time frames, most often for informal consultations, 
which by policy are to be completed within 30 days. Most of the late 
informal consultations were completed within 60 days, although a small 
percentage of informal consultations (9 percent for FWS Portland and 16 
percent for NMFS) were more than 90 days late. Overall, timeliness was 
better for formal consultations, which are to be completed within 135 
days. NMFS completed 75 percent of its formal consultations on time, 
while FWS Portland completed 86 percent on time. During this period, 
both Services improved their timeliness on informal consultations, 
which account for most of their workloads. On formal consultations, in 
contrast, NMFS' timeliness worsened over the 3 years, while FWS 
Portland's improved. We did not find any obvious commonalities among 
the late consultations--they addressed various kinds of activities 
including livestock grazing, noxious weed control, and road use. 
Figures 4 and 5 show NMFS and FWS Portland timeliness data for formal 
and informal consultations over the 3 years.

Figure 4: NMFS Timeliness for Formal and Informal Consultations:

[See PDF for image]

Note: Fiscal year 2001 data are only for the period January 1 through 
September 30, 2001.

[End of figure]

Figure 5: FWS Portland Office Timeliness for Formal and Informal 
Consultations:

[See PDF for image]

[End of figure]

According to officials at the Services, some consultations we 
identified as exceeding deadlines may have had agreed upon extensions 
that either were not reflected in their data systems or were 
identifiable in the systems only through review of individual 
consultation records. For example, the Services and action agencies may 
agree to extend time frames if a relevant study is nearing completion 
that would significantly inform the consultation process, or if an 
action agency decides to wait to consult on an individual project in 
order to combine it with consultation on future projects. In addition, 
NMFS officials said that in some cases it is not clear what discretion 
a federal agency has to make project modifications, for example, and 
this can result in consultation delays. FWS and Forest Service 
officials told us that there may be many valid reasons for the Services 
and action agencies to mutually agree to longer time frames, and that 
some delays occur at the request of the action agency. The inability to 
easily identify such extensions, however, does not allow the Services 
to provide explanations on their timeliness without manually reviewing 
administrative records for individual consultations. If such 
information were included and easily identifiable, the Services' data 
systems would more accurately reflect timeliness. In addition, some 
officials at the Services and action agencies said that for some 
proposed projects they expect consultation to take a long time because 
the projects, and/or determining the status of and potential effects to 
protected species, are either extremely complex or controversial.

Available Data Did Not Capture the Entire Consultation Process:

For fiscal years 2001 through 2003, neither of the Services routinely 
tracked the entire consultation process. Specifically, FWS and NMFS did 
not routinely track the time spent on or level of effort devoted to 
preconsultation, which includes actions such as interagency discussions 
of the content and level of detail to be included in a biological 
assessment. NMFS officials told us that preconsultation can be very 
valuable because it may result in modifications to a project to reduce 
effects to listed species and designated critical habitat so that the 
action agency may not need to go through formal consultation. According 
to officials with the Services and action agencies, the time spent in 
preconsultation may sometimes be considerable because many issues and 
potential problems may need to be discussed and resolved. In fact, 
preconsultation may account for the majority of the time spent on the 
entire consultation process, although some of this time may be spent on 
complying with environmental requirements other than consultation. As a 
result, computation of only the time and level of effort spent after 
the "official" start of a consultation (the point at which the Services 
are satisfied that the biological assessment is complete) may 
underrepresent the resources devoted to the process. Both Services now 
track actions taken in preconsultation in their systems and typically 
identify these actions as technical assistance. However, FWS' system 
does not electronically link these activities to subsequent 
consultations easily, and neither of the Services is using these data 
to determine the level of effort expended on the entire consultation 
process.

Without information on the time spent in or level of effort devoted to 
preconsultation, the Services cannot easily determine how long the 
entire consultation process really takes or respond to complaints that 
it takes too long, or determine how many resources are expended during 
preconsultation. Nor can the Services identify trends in timeliness or 
workload; determine whether delays in preconsultation occur more often 
in certain locations, with certain types of projects, or with certain 
agencies; or accurately gauge their resource investment in the entire 
consultation process. NMFS officials said they use data on the 
"official" consultation process (i.e., excluding preconsultation) to 
identify when consultations are exceeding time frames so managers can 
step in to determine what is needed to resolve the cause of the delay.

Some officials at the Services noted that tracking preconsultation 
accurately would be challenging. Specifically, they said that simply 
tracking the time elapsed between an inquiry from an action agency 
about a proposed activity and the official start of a consultation will 
not reflect periods of time when neither the Services nor the action 
agency is actively working on the consultation. For example, some 
actions that take place during that interval might relate to other 
activities, other consultations, or other required environmental 
analyses. In addition, because much of the information generated during 
this interval may be applicable to processes other than consultation, 
such as analyses to comply with the National Environmental Policy Act, 
officials said that it is difficult to apportion a specific amount of 
time to Endangered Species Act requirements.

Improvement Efforts Have Focused on Collaboration, Workload, and 
Information Sharing, but Their Effectiveness Is Unclear:

The Services and action agencies have taken steps in three general 
categories to make the consultation process smoother and more 
efficient. These efforts focus on increasing collaboration, reducing 
workload, and increasing the consistency and transparency of the 
consultation process. While many officials praised these various 
efforts, their overall effectiveness is unclear because the Services 
have not comprehensively evaluated them.

Services and Action Agencies Have Worked to Improve Collaboration:

The Services and action agencies have taken various steps focused on 
improving interagency collaboration to make the consultation process 
smoother and more efficient. The largest such initiative, referred to 
as "streamlining," began in 1995 and involves the Services and two 
action agencies--the Bureau of Land Management and the Forest Service-
-in the four states we reviewed. This initiative created interagency 
teams of biologists--known as Level 1 teams--that discuss proposed 
activities and their likely effects on listed species. One of the 
purposes of this effort was to encourage the Services and action 
agencies to work together on biological assessments in order to avoid 
later disagreements. As such, the Level 1 teams collaborate to identify 
an activity's potential effect on listed species, determine what 
protective measures are needed for species, and reach consensus on what 
information is needed for a "complete" biological assessment. This 
consensus is particularly important to the timeliness of consultations, 
because a consultation officially begins only when the Services have 
received what they consider to be a complete biological 
assessment.[Footnote 14] According to FWS officials, implementation of 
streamlining generally requires a greater commitment of staff resources 
than the "traditional" consultation process.

The streamlined process is intended, through Level 1 team 
communication, to discuss the types of concerns or issues that 
typically arise during consultation. FWS and Forest Service officials 
told us that streamlining should result in better projects that 
incorporate needed species and habitat protections into their designs 
early, rather than requiring after-the-fact changes that may cause 
delays in project implementation. Streamlining is also intended to 
eliminate what action agency officials described as a seemingly endless 
cycle of information requests. That is, in the traditional 
(nonstreamlined) consultation process, weeks or months may be spent 
fulfilling requests from the Services for additional information to 
resolve incomplete biological assessments (see fig. 6).

Figure 6: Streamlined Consultation Process Seeks to Bypass the 
Iterative Cycle of Information Requests:

[See PDF for image]

[End of figure]

Under the streamlined process, in theory, a biological assessment 
submitted to the Services should never be incomplete, because their 
biologists have collaborated with action agency biologists on decisions 
about the assessment's key content. Accordingly, the interagency 
streamlining agreement specifies shorter time frames for the completion 
of a formal consultation conducted under the streamlined process--60 
days as opposed to 135 days. For streamlined informal consultations, 
the completion time frame remains the same as for those conducted under 
the traditional process--30 days. In addition to eliminating multiple 
information requests, the streamlined process should enable the 
Services to produce a biological opinion (which concludes the 
consultation process) more quickly than if the agencies did not 
collaborate up front. If a Level 1 team is unable to resolve 
disagreements about a proposed activity or its effects, the team is 
supposed to elevate those disagreements to a Level 2 team, which is 
composed of field-level managers. Any disagreements unresolved by a 
Level 2 team can be further elevated.

In Idaho, Oregon, and Washington, the Level 1 streamlining teams meet 
to discuss specific proposed activities. In Montana, the streamlining 
process is implemented differently because of staffing limitations, 
according to officials. Instead of discussing specific activities, 
Montana team members discuss common problems that could impede 
consultation, in general, and work on solutions. For example, the 
Montana team developed a standard format for biological assessments to 
improve their consistency. The team also developed criteria that can be 
used to quickly identify (i.e., screen out) proposed activities that 
will either have no effect on species--and thus do not require 
consultation--or those that are unlikely to adversely affect species, 
and can therefore undergo an informal consultation.

Other collaborative initiatives involving other action agencies and 
nonfederal parties have also emerged. The U.S. Army Corps of Engineers 
uses a collaborative process in Montana to make the federal and state 
permitting process simpler and faster. The Corps holds a monthly 
meeting with officials from agencies involved in approving or issuing 
permits for work in or near bodies of water. At these meetings, 
attendees discuss complex or controversial activities that individuals 
are contemplating or for which permit applications have been submitted. 
Attendees generally represent the Corps; the Fish and Wildlife Service; 
the Environmental Protection Agency; the Montana Historical Society; 
and the Montana Departments of Environmental Quality, Natural Resources 
and Conservation, and Fish, Wildlife, and Parks; applicants are invited 
to attend the meetings as well. Not all proposed activities are 
discussed at the meetings--only those that may be of concern because of 
their location in a sensitive area, such as the Yellowstone River, or 
their likelihood of having a negative effect on listed or sensitive 
species.

In Portland, Oregon, the Services, the U.S. Army Corps of Engineers, 
and the city of Portland recently launched a collaborative process as 
well. In Portland, the collaborative process will be used for 
consultations on the city's capital construction and maintenance 
activities, such as bridge repair and storm water management, that 
receive federal funding or require permits from federal agencies such 
as the Corps. According to city officials, monthly meetings held as a 
part of the collaborative process should result in more efficient 
consultation because they will enable prompt discussion of projects and 
early identification of opportunities to consolidate multiple projects 
into a single consultation.

In a different effort to improve collaboration, the Services opened new 
field offices closer to the action agency offices with which they 
routinely consult. Numerous officials at the Services and action 
agencies told us that the ability to work together in person helps them 
develop better working relationships that are important to smooth and 
efficient consultations. Previously, the distance between some Services 
and action agency locations made consultations difficult. The Fish and 
Wildlife Service opened suboffices in Chubbock, Idaho; and La Grande, 
Roseburg, Bend, and Newport, Oregon; in part to handle an increased 
consultation workload in these areas. NMFS opened offices in 
Grangeville and Salmon, Idaho; La Grande, Oregon; and Ellensburg, 
Washington.

Services and Action Agencies Have Modified Some Consultations to Reduce 
Workload:

To help reduce the workload associated with consultations while still 
protecting species, the Services, Bureau of Land Management, Forest 
Service, and the U.S. Army Corps of Engineers have developed numerous 
"programmatic" consultations. These programmatic consultations can be 
lengthy or difficult to develop initially, but are intended to 
ultimately reduce workload associated with subsequent consultations.

One type of programmatic consultation reduces workload by combining 
multiple proposed activities into a single consultation rather than 
consulting on each individual activity. For example, one such 
programmatic consultation in Oregon covers various permits for grazing 
on 26 specific allotments on BLM lands. Prior to this programmatic 
consultation, BLM would have consulted individually on each of the 26 
grazing allotments. However, given that the activities occurring on the 
allotments are similar, as are the effects of those activities, 
combining them into a single consultation is more efficient.

Another type of programmatic consultation may reduce the work involved 
in individual consultations by providing specific design criteria that, 
if followed, will generally ensure a quicker and more predictable 
approval process. For example, a programmatic consultation being 
developed by FWS for methane coal bed development activities on public 
lands in Montana prescribes mitigative actions, such as installing 
devices to deter bald eagles from perching on infrastructure, that 
proposed projects should include. Similarly, land use plans that must 
go through consultation--such as multiyear forest plans--may provide 
clear direction on approvable project designs by identifying design 
criteria intended to limit effects on species. Presumably, if a 
proposed activity adheres to the prescribed criteria, consultations 
will proceed more quickly.

One type of programmatic consultation that officials discussed with us 
covered categories of routine activities, even though the action agency 
may not yet have identified specific projects that it planned to 
conduct. For example, one such programmatic consultation allowed up to 
120 culvert replacement and removal projects per year on Forest Service 
lands in Washington and eastern Oregon. To be covered under this 
programmatic consultation, proposed activities must have met specific 
criteria, such as design standards and the time of year of the 
activity, to ensure that they did not adversely affect protected 
species or habitat. Qualified projects could proceed without individual 
consultation, although the action agency might have been required to 
report annually on the location and size of the completed projects. In 
contrast, another programmatic consultation of this type--covering 10 
categories of routine activities, such as road and trail maintenance on 
federal lands in northwestern Oregon--did not restrict the number of 
projects that could be allowed during the consultation's 5-year life 
span as long as they met specific design criteria. However, several 
court decisions have raised questions about the legality of these types 
of programmatic consultations.[Footnote 15] As a result, FWS and Forest 
Service officials informed us that they are recommending that all 
programmatic consultations include provisions for site-specific (or 
project-specific) analysis.

Services and Action Agencies Have Taken Steps to Increase Consistency 
and Transparency:

The Services and action agencies have taken numerous steps to increase 
the consistency and transparency of the consultation process. First, 
the Services and action agencies provide training for those involved in 
the process. For example, FWS provides weeklong introductory and 
advanced courses on the consultation process at its National 
Conservation Training Center in West Virginia. Anyone involved in the 
consultation process can take these courses. NMFS provides periodic 
training at its field offices, and both NMFS and FWS have offered 
interagency training courses at various action agency locations and are 
working on additional courses such as a course to assist action 
agencies in developing biological assessments. The Bureau of Land 
Management offers Endangered Species Act training two to three times a 
year, and the Bureau of Reclamation is developing a bureau-wide 
training program on Endangered Species Act issues, including 
consultation.

Second, the Services and action agencies have developed a variety of 
guidance documents on the consultation process. The Services' 
consultation handbook, for example, was developed to aid Service 
biologists in implementing the consultation process, but it is also 
used by action agencies and others. The Bureau of Reclamation has its 
own draft handbook for complying with Endangered Species Act 
requirements, including consultations, which is currently being 
reviewed by the Services. The U.S. Army Corps of Engineers is 
developing a library of biological assessments to serve as examples for 
Corps staff going through the process. The Services have also issued 
numerous policy memos or guidance that address confusing or problematic 
aspects of consultation. For example, the Services issued guidance on 
how to assess the direct and indirect effects of right-of-way permits 
for access to private land. Such assessments have instigated 
significant disagreements among the Services and action agencies that 
the guidance hopes to resolve.

Third, the Services and action agencies have taken advantage of the 
Internet and internal agency Web pages to disseminate information on 
the consultation process and some specific consultations. The Services, 
the Bureau of Land Management, and the Forest Service have an 
interagency Web site that links to the Endangered Species Act, its 
regulations, and key guidance documents. NMFS has a Web site with links 
to final biological opinions and its consultation tracking system so 
that action agencies and others can identify the status of specific 
consultations; NMFS also has an internal Web site with agency guidance. 
FWS' regional office in Portland, Oregon, has a similar Web site for 
consultations conducted in Idaho, Oregon, and Washington. NMFS and FWS 
are working together to standardize an online template for developing a 
biological assessment. The U.S. Army Corps of Engineers has a Web site 
that provides information on the requirements of its permitting 
program, including permitted activities that must go through the 
consultation process. Reclamation officials told us that they make 
biological assessments developed by Reclamation staff available to 
assist other staff in the agency in preparing these assessments.

Last, officials at both the Services and action agencies have used site 
visits to educate stakeholders about proposed activities and their 
likely effects on listed species. According to several officials at the 
Services and action agencies, seeing the site of a proposed activity 
firsthand is invaluable to understanding the activity and its likely 
effects on species and habitat (fig. 7).

Figure 7: Site Visit to Culvert Replacement Project on Forest Service 
Land:

[See PDF for image]

[End of figure]

A Corps official told us that he has taken biologists with the Services 
out on dredges to increase the biologists' understanding of dredging 
operations and their likely effect on species. In another example, site 
visits were important in achieving agreement on a proposed development 
plan for a ski area in Washington. A Forest Service biologist convened 
on-site meetings of all the stakeholders in the consultation about the 
proposed plan. These stakeholders--representatives of the Fish and 
Wildlife Service, the Forest 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, including the Canada lynx. This on-site 
collaboration, according to the Forest Service biologist, not only 
resulted in stakeholder consensus on revisions to the development plan, 
but may also have forestalled litigation by the state and the local 
hunting group, which had previously opposed the proposed development 
plan.

Effectiveness of Improvement Efforts Is Unclear:

Owing in part to actions taken to improve the consultation process, 
many officials from the Services and action agencies who responded to 
our survey believe that the process has improved since the late 1990s. 
Of the 56 survey respondents who had been involved in consultations for 
at least the past 5 years, 33 (nearly 60 percent) said the process had 
improved. The perception of improvement was strongest in the Services, 
with 12 of the 14 who responded to this question citing improvements. 
Slightly more than half of the 40 action agency respondents also 
indicated that the process had improved. BLM respondents cited the 
process as improved more often than Forest Service respondents.

More than half of the officials from the Services, BLM, and Forest 
Service who participated in our survey cited beneficial effects of 
streamlining, such as increased trust between the Services and action 
agencies, better communication, and earlier involvement in projects, 
which many officials emphasized as important for consultations to run 
efficiently. One Bureau of Land Management official said that the 
process of having Level 1 teams agree on the draft biological 
assessment lessens the chance that consultations will be prolonged by 
one or more requests from the Services for additional information from 
the action agency. City of Portland officials said that they are seeing 
similar benefits from their streamlining agreement with the Services, 
even though the agreement is in the early stages of implementation. 
These benefits include increased coordination among the city's bureaus 
and faster approval of Corps permits, which in turn have led to quicker 
implementation of city projects. As for the addition of new offices, 
several officials at the Services and action agencies mentioned their 
importance in enhancing professional working relationships and 
collaboration.

Some of the officials with the Services and action agencies who 
responded to our survey also indicated that the use of programmatic 
consultations has improved the consultation process in the last several 
years. Numerous other officials at the Services and action agencies we 
interviewed also noted that programmatic consultations have increased 
the efficiency of the consultation process. For example, the Corps 
cited several benefits of a programmatic consultation for dock 
construction and repair; it has reduced the number of individual 
consultations required and provided more certainty to applicants and 
Corps officials as to which designs the Services would accept without 
formal consultation. Permit reviewers at the Corps have encouraged 
applicants to use such designs in order to speed their applications.

Perceived improvements in the consultation process, however, cannot be 
attributed solely to the efforts of the Services and action agencies, 
as survey respondents identified several other factors that make the 
consultation process work well. These included effective teamwork 
between the Services and action agencies--particularly in instances 
where officials at the Services and action agencies had worked together 
long enough to develop trust--good interpersonal skills of staff 
involved in the consultation process, and increased experience with and 
knowledge of the consultation process in general, and with species such 
as the bull trout in particular. Our survey and interviews indicate 
that some officials believe that the consultation process is now less 
contentious because people have been working together longer and more 
frequently.

Although the Services and action agencies have done limited evaluations 
of some of the improvement efforts, they have not assessed whether the 
efforts aimed at reducing workload and speeding up consultations are 
achieving their original goals. The Forest Service and an interagency 
team have evaluated problems with streamlining such as causes for 
delays. The interagency team, which is composed of officials from the 
Services, BLM, and the Forest Service, conducts reviews periodically 
throughout the year, evaluating issues such as procedures, management 
plans, and selected biological opinions. However, none of the 
evaluations has analyzed whether the strategy of investing resources in 
preconsultation actually reduces the work and time spent on 
consultations while maintaining necessary protection for species and 
habitat. Our timeliness analysis indicates that this strategy has not 
always resulted in streamlined formal consultations' meeting the 
expected shortened time frame of 60 days. Although many streamlined 
consultations are completed within established time frames--with some 
completed in very little time--we found that the Services did not 
conclude streamlined formal consultations within the 60-day time frame 
for about 46 percent and 62 percent of FWS and NMFS streamlined formal 
consultations, respectively. Figures 8 through 15 show our timeliness 
analyses for all the consultations we reviewed.

Figure 8: FWS Portland Office Streamlined Formal Consultations:

[See PDF for image]

[End of figure]

Figure 9: FWS Portland Office Nonstreamlined Formal Consultations:

[See PDF for image]

[End of figure]

Figure 10: FWS Portland Office Streamlined Informal Consultations:

[See PDF for image]

[End of figure]

Figure 11: FWS Portland Office Nonstreamlined Informal Consultations:

[See PDF for image]

[End of figure]

Figure 12: NMFS Streamlined Formal Consultations:

[See PDF for image]

[End of figure]

Figure 13: NMFS Nonstreamlined Formal Consultations:

[See PDF for image]

[End of figure]

Figure 14: NMFS Streamlined Informal Consultations:

[See PDF for image]

[End of figure]

Figure 15: NMFS Nonstreamlined Informal Consultations:

[See PDF for image]

[End of figure]

Many of the "streamlined" formal consultations that exceeded the 
shortened 60-day time frame, also exceeded the 135-day time frame for 
nonstreamlined formal consultations (as figures 8 and 12 show). For 
NMFS, 18 of the 60 (30 percent) streamlined formal consultations 
completed during fiscal years 2001 through 2003 exceeded 135 days. Data 
from the FWS Portland office show that 13 of the 69 (19 percent) 
streamlined formal consultations completed in that office in fiscal 
years 2001 through 2003 took longer than 135 days. Furthermore, given 
that the Services do not know how much time and effort is spent in 
preconsultation, as discussed previously, the Services cannot know if 
streamlining is simply shifting time and effort typically spent in 
consultation to preconsultation, or if they are spending more resources 
on the entire consultation process under streamlining as compared to 
nonstreamlined consultations.

We also heard concerns from some officials that the streamlining 
process can still take a long time to complete, although not everyone 
thought that long time frames were necessarily bad. FWS and Forest 
Service officials told us that in addition to reducing time frames, 
streamlining is also intended to help ensure that consultations are 
completed when the action agencies are ready to implement their 
actions, even if the streamlined consultation takes as long as it would 
have under the normal process. One FWS biologist said that streamlining 
has improved the consultation process because of the improved 
relationships and mutual understanding of each other's jobs, but that 
it requires more effort. In this official's opinion, however, the time 
is well spent because discussions take place before projects are final, 
so the relationship is less adversarial and the consultation outcome is 
better, such as fewer effects on species and habitat, or cheaper 
project modifications. Once a biological assessment is agreed to and is 
provided to the Services to start the official consultation, she said 
it is concurred with quickly because of the work and agreements reached 
on the Level 1 team. FWS officials told us they have committed a lot of 
resources to implement streamlining but do not know whether the effort 
has been effective. A FWS official said that if streamlining proves 
effective, he would like to implement it with other agencies, but he 
was unsure whether the Service could commit the resources to do so. A 
NMFS official told us that conducting a comprehensive evaluation of 
streamlining would take resources that the Service does not have. We 
also heard concerns about the use of programmatic consultations, 
particularly on the part of some officials at the Services, because of 
the legal vulnerabilities discussed earlier. FWS and Forest Service 
officials informed us that they are recommending that all programmatic 
consultations include provisions for site-specific (or project-
specific) analysis because of this vulnerability.

Federal Concerns about the Consultation Process Center on Workload and 
Process Requirements:

Despite efforts to improve the consultation process, officials at the 
Services and action agencies remain concerned about two primary issues. 
First, officials at the Services and action agencies are concerned that 
their workloads remain heavy, even though staff levels have increased 
in recent years, and it compromises their ability to complete all 
consultations in a timely manner. Second, officials at the Services and 
action agencies sometimes disagree about the extent to which 
consultation is necessary. Officials at the action agencies believe 
that the Services sometimes recommend consultation when it is not 
really necessary and that they request similarly unnecessary amounts of 
scientific analysis and documentation on potential effects. Officials 
at the Services told us that they believe they are appropriately 
fulfilling their responsibilities under the act to protect listed 
species and designated critical habitat.

Services and Action Agencies Worry about Continued Resource 
Constraints:

Staffing shortages at the Services were the predominant concern about 
the consultation process among the 66 survey respondents. It was the 
most important concern among the Services, Corps, and Bureau of 
Reclamation respondents, with Forest Service and BLM respondents also 
identifying it among their top concerns. In addition to the survey 
respondents, other officials at the Services and action agencies we 
interviewed also expressed concerns about a lack of resources to deal 
with the consultation workload at the Services and at the action 
agencies.

The Services have increased staff levels since the late 1990s to deal 
with their increasing workloads. NMFS estimates of staff levels for its 
Northwest region for fiscal years 1999 through 2002 show a nearly 80-
percent increase in staffing levels (from 48 full-time equivalents to 
86).[Footnote 16] FWS staffing level estimates for its Portland, 
Klamath Falls, and Spokane field offices show a 58-percent increase for 
fiscal years 1998 through 2002 (from 24 to 38).[Footnote 17] In some 
cases, these increases are primarily the result of the National Fire 
Plan that provides funding for biologists at the Services to 
specifically work on consultations for fire-related activities.

Despite these increases, however, officials at the Services told us 
that they still do not have enough resources to handle their 
consultation workloads in a timely fashion. For example, data provided 
by the FWS Portland field office show that the number of consultations 
for which each biologist was responsible increased about 90 percent 
between fiscal years 1998 through 2002, while resources increased about 
40 percent. NMFS officials said that they have added staff since the 
mid-1990s to deal with increasing workload, but that the increase has 
never been enough. Data we analyzed from NMFS for January 2001 through 
fiscal year 2003 show that its workload doubled during this period. As 
a result, officials at both Services told us they often divert 
resources from other endangered species activities to help complete 
consultations. This situation is consistent with our findings in a June 
2002 report on FWS budgeting for endangered species 
activities.[Footnote 18] We found that FWS field office supervisors in 
all regions reported that a lack of funds and shortage of staff 
adversely affected their operations, with consultations being the most 
frequently identified area with insufficient resources. Furthermore, 
many action agency officials complained of too few experienced staff at 
the Services to handle the consultation workload. In particular, almost 
all action agency officials we interviewed in Montana said that FWS 
resources in the state were woefully inadequate given the service's 
consultation workload. For example, one Forest Service official in 
Montana, who had been involved in consultations elsewhere in the 
Northwest, said she was astounded by the small number of biologists 
conducting consultations at FWS' office in Montana, given the workload, 
compared with the other three states included in our review.[Footnote 
19]

Action agencies also expressed concern about a continuing imbalance in 
their workload and staff levels. For example, according to the U.S. 
Army Corps of Engineers, the number of consultations that the Corps 
conducted each year increased almost 300 percent between fiscal years 
1999 and 2002, while staff devoted to consultations increased by about 
60 percent during this period.[Footnote 20] Between fiscal years 1998 
and 2002, Bureau of Reclamation officials said that they doubled the 
number of their staff devoted to consultations in the Pacific Northwest 
Region from a staff level of four full-time equivalents in fiscal year 
1998 to eight in fiscal year 2002. Reclamation estimated that its 
number of consultations increased by almost 85 percent between fiscal 
years 1998 and 2001, but then declined in fiscal year 2002 to about 20 
percent more than its fiscal year 1998 workload. Reclamation officials 
told us that, while the agency does not conduct many individual 
consultations, the projects they must consult on are large and very 
complex, such as those for ongoing water supply and dam operations.

The persistent imbalance between workload and resources is frustrating 
for staff with the Services and action agencies. Officials from the 
Services said that they are constantly trying to keep up with their 
workload and must neglect other duties such as monitoring species or 
agency actions. Action agency staff are frustrated because biologists 
at the Services cannot review their proposed projects in a timely 
fashion. Compounding workload concerns is the belief of many officials 
at the Services and action agencies we interviewed that their 
consultation workload will continue to grow as projects become more 
complex, and the Services consult on activities that have not undergone 
consultation in the past. For example, several officials expect that 
oil and gas activity on federal lands will expand, and that the 
associated consultations will likely be complex.

Staffing level problems are exacerbated by high turnover of biologists 
at the Services. Officials at the Services said they constantly 
struggle to keep staff. NMFS officials told us that, given its 
controversial nature, consultation work is very stressful, and 
sometimes staff experience burn-out. When seasoned biologists leave, 
they are sometimes replaced by staff that are not knowledgeable about 
the consultation process or action agency programs and projects. In 
such situations, the more senior biologists at the Services must not 
only take time away from their work to train the new biologists, but 
also take on additional work until the new staff are up to speed. 
Working with newly hired biologists is frustrating for action agency 
staff because they too must take time to educate the new biologists at 
the Services about the agency's programs and activities. Thus, gaining 
additional staff is somewhat of a double-edged sword, according to 
officials at the Services and action agencies--additional staff are 
needed, but it takes time to train them. In the meantime, consultations 
are postponed or take longer than usual to complete. Officials with the 
Services also told us that the considerable number of staff positions 
funded through the National Fire Plan are hard to keep filled, as they 
are temporary positions and do not provide for job security or 
promotion. High turnover also affects the success of collaborative 
efforts, such as streamlining, that many officials said are dependent 
on good working relationships that take time to develop.

As a result of these staffing problems, some action agencies have 
arrangements with the Services, such as through reimbursable or 
interagency personnel agreements, to have biologist positions at the 
Services to specifically work on, or give priority to, their respective 
consultations. Agency officials told us that they have resorted to this 
method to ensure that their proposed projects get through the 
consultation process in a reasonable amount of time. For example, one 
BLM office provides funding, through an interagency agreement, for a 
FWS biologist position in Billings that is devoted to consultations 
related to BLM field offices' revisions to resource management plans. 
As mentioned previously, the National Fire Plan also provides resources 
for biologists at the Services so that consultations related to fire 
activities can be completed expeditiously.

Services and Action Agencies Disagree about the Extent of Consultation 
Needed:

A major concern identified by survey respondents and others we 
interviewed was that the Services and action agencies sometimes 
disagree about the extent to which consultation is needed. While action 
agency officials recognized the benefit of the consultation process to 
species, many also thought that the process had gotten out of control, 
that they were consulting on many more activities than was necessary, 
and that consultations were going beyond what was called for by the 
Endangered Species Act. For example, although action agencies have the 
authority under the act to decide whether to consult with the Services 
about their activities, many action agency officials said they are 
reluctant not to consult with the Services even if they believe that 
their activities will not affect listed species. Some action agency 
officials told us that if they do not get the Services' concurrence on 
a proposed activity, they feel vulnerable to legal challenge. 
Similarly, action agency officials complained about the need to consult 
on activities likely to have only minor effects on species. Some 
officials felt that it was most important to spend time consulting with 
the Services on activities that were likely to have major effects on 
species. They said that they know how to avoid jeopardizing species 
while carrying out their activities, but that their professional 
expertise is not recognized.

Officials with the Services said that the purpose of the consultation 
process is to consider the potential effects of proposed activities 
regardless of whether they are positive or negative and to avoid 
jeopardizing species' continued existence and adversely modifying their 
critical habitat. For example, the consultation handbook states that 
consultation should be conducted on activities with "insignificant, 
discountable, or completely beneficial" effects in addition to those 
with clearly negative effects. Some officials with the Services 
emphasized that they cannot ignore their responsibility to consult on 
every action that may affect species or their habitats, and that they 
must show some level of good faith effort to do so. The Services also 
pointed out, however, that under the act and its implementing 
regulations, activities that are not likely to adversely affect species 
may undergo a less burdensome consultation process (i.e., informal 
consultation). FWS officials told us that the consultation process 
provides considerable benefits to species and, in some cases, to action 
agencies. For example, in some cases, consultation may result in a 
project that better maintains the integrity of the ecosystem of concern 
(that would include designated critical habitat) that may provide an 
agency action more flexibility to carry out future activities in the 
ecosystem than it otherwise would have had. FWS officials also told us 
that while they respect the professional expertise of the action 
agencies, that expertise, the information available, and the 
perspective of the action agencies are typically focused on 
conservation of species on their respective lands while the Services 
are responsible for conserving species throughout their ranges.

Some action agency officials believe that the Services spend too much 
time and effort scrutinizing short-term negative effects of proposed 
activities that, in the long run, would be benign or beneficial to 
species or habitat. These officials said that the Services tend to 
overlook the overall benefits of these activities and instead focus the 
consultation too heavily on the short-term effects. For example, 
activities such as replacing or repairing culverts, obliterating roads, 
or reducing forest fuels can have short-term negative impacts (such as 
increased sediment in the water or temporarily increased traffic in 
wildlife habitat) but can also have long-term benefits (such as 
enhanced fish passage, reduced sediment in fish habitat, and lower 
likelihood of catastrophic wildfires). Replacement of pier and dock 
structures provides a good illustration of the conflict between short-
term impacts and long-term benefits (see fig. 16).

Figure 16: Replacement of Creosote-Treated Wood Pilings with Steel 
Pilings:

[See PDF for image]

Note: Replacing creosote-treated wood pilings with steel pilings has 
many benefits. Not only does the replacement remove toxic creosote from 
the water, but steel pilings require no maintenance and, hence, no 
future disturbance to the ecosystem. However, when a vibratory hammer 
is used to install the steel pilings, the sound waves can harm fish. To 
minimize the potential harm, NMFS requests the use of a mitigation 
method, such as this one, which generates a protective curtain of air 
bubbles around the installation site to minimize the transport of sound 
waves. In some cases, NMFS also requests that a diver be hired to 
observe any fish injuries that may result from the installation. Some 
seaport officials find it difficult to justify the cost of such 
protective measures; they believe the long-term benefits should offset 
any immediate harm.

[End of figure]

Officials at the Services pointed out that consultation is required for 
activities that have negative short-term effects even if the activities 
have long-term beneficial effects.[Footnote 21] Officials at the 
Services also said that action agencies are sometimes too quick to 
discount negative effects or to ascribe benefits to their activities 
without fully understanding the limitations. A NMFS official provided 
an example of a project to replace a dam used to divert river water for 
irrigation. The replacement dam was built, in part, to increase habitat 
for listed salmon species and reduce the possibility of take of listed 
species during the frequent maintenance activities that the older dam 
required. Despite the protective barriers included in the new dam, 
after its completion, officials found dead fish that had accessed the 
diversion through an alternate channel and were crushed against the 
inside of the barrier. A further project review revealed the potential 
for fish caught in the diversion conduit to be sent falling onto 
exposed rock. FWS and Forest Service officials told us that many 
projects that have long-term benefits to listed species result in 
short-term adverse effects including take that can be authorized 
through the formal consultation process. Another factor that NMFS 
officials explained could add to the significance of short-term 
negative effects is that the Services must consider aggregated impacts 
of numerous activities in an area when they are evaluating the 
potential effects of a single activity (see fig. 17).

Figure 17: Numerous Docks and Piers Line the Shoreline of Lake 
Washington:

[See PDF for image]

Note: A NMFS official recognized that some people believe that 
requested mitigation actions seem excessive for a single project; 
however, he explained that they are required to assess the aggregated 
effects of projects in an area. In Lake Washington, there are countless 
docks and piers that individually may not have a significant effect on 
species, but when taken together, their effects could be considerable.

[End of figure]

In addition, some action agency officials said the Services sometimes 
request that they conduct studies or do monitoring to develop new 
information about a species or its habitat. Action agency officials 
pointed out that the consultation process requires agencies to use the 
best available information, not develop new information. Some officials 
believe that this is the Services' way of gathering new information on 
species because they do not have the resources to conduct their own 
research. For example, Corps officials told us that for one of their 
proposed activities they were asked to conduct sophisticated hydrologic 
monitoring because FWS speculated that a proposed Corps activity might 
result in the transport of contaminants in sediment to salmon habitat. 
However, the Corps asserted that it provided studies showing that the 
suspected contaminants were not present in the sediment and, therefore, 
the monitoring was not needed. Under consultation regulations, the 
Services can ask that additional studies be conducted, but the action 
agencies can refuse; in that case, the Services should proceed with 
issuing their biological opinions using the best available information 
without the requested studies. The consultation handbook suggests that 
the Services explain to action agencies that gathering more information 
may ultimately be in the their best interests if the information 
yielded allows the Services to be less conservative in their biological 
opinion. Specifically, the handbook states that if significant data 
gaps exist, the Services can either extend the due date for completing 
the biological opinion until sufficient information is developed or 
issue their opinion with the available information, giving the benefit 
of the doubt to the species.

Finally, some action agency officials expressed concern that the 
Services are taking the consultation process beyond what is actually 
called for in the Endangered Species Act. Some action agency officials 
said that they feel they are forced to compromise their project designs 
too much in order to avoid receiving an opinion from the Services that 
their proposed activity may jeopardize a species' continued existence 
or adversely modify its critical habitat (often simply referred to as 
"jeopardy"). While action agency officials recognized their 
responsibilities to conserve threatened and endangered species, some 
officials believe that, in some cases, the Services are requesting 
project changes or mitigative actions during the consultation process 
that are intended to help recover species, not just avoid jeopardy (see 
fig. 18).

Figure 18: Caving Streambed along a Railway Posed a Safety Hazard:

[See PDF for image]

Note: The project restored the integrity of the railbed. However, in 
the opinion of the railroad company's consultant, FWS requested 
extensive fish and wildlife habitat restoration beyond what existed in 
the current condition and beyond what was necessary to shore up the 
failing riverbank and avoid jeopardizing species or habitat. While not 
detectable in the photograph, the railroad company installed extensive 
plantings of willows in the restored riverbank areas to create a 
riparian area. FWS officials disagreed that this was excessive because, 
they said, without the plantings of trees and shrubs, the bank 
stabilization would be only temporary. FWS officials added that project 
modifications or mitigation that only protect species or habitat in the 
short-term do not fulfill the action agencies' responsibilities under 
the consultation requirements of the Endangered Species Act.

[End of figure]

Officials with the Services and action agencies told us there is a 
negative perception about a FWS or NMFS determination that an agency's 
proposed activity will jeopardize a species. Therefore, action agency 
officials said they often feel compelled to modify their activities or 
implement mitigative actions they do not believe are necessary to avoid 
jeopardy. Action agency officials asserted that this is the reason that 
the Services issue so few opinions identifying potential jeopardy to a 
species each year.

Interior's Assistant Secretary for Water and Science addressed this 
issue last year at a Bureau of Reclamation conference by asserting that 
while Reclamation will implement conservation measures for species when 
practicable, the agency should not include components in its proposed 
activities that it believes are not necessary for avoiding negative 
effects to species. Reclamation reiterated this stance in a policy 
statement recognizing that this new policy may result in the agency 
receiving jeopardy opinions in some cases. Reclamation officials told 
us that it would help if the Services were clearer as to which 
activities were essential to avoiding harm to a species and its habitat 
and which would be beneficial to broader recovery efforts.

Officials at the Services told us that, because there have been very 
few jeopardy opinions issued, they believe the consultation process is 
working. They recognize that there is a negative perception surrounding 
the issuance of a jeopardy opinion, and that action agencies typically 
do quite a bit to avoid getting such an opinion. However, they see the 
process of working through issues in order to avoid a jeopardy opinion 
or the need for formal consultation as a success, rather than an 
example of the Services coercing agencies to modify their activities 
unnecessarily.

Action agency officials thought the documentation needed for the 
consultation process was similarly getting out of control. 
Specifically, they said they were being asked to provide the same level 
of detail and scientific analysis for activities that were unlikely to 
affect species as for those that were likely to have negative effects. 
A major point of contention with regard to documentation was the amount 
of detail requested by the Services in a biological assessment. Typical 
disagreements about the information needed for a "complete" biological 
assessment, according to officials at the Services and action agencies, 
deal with the scope and design of the activity, its likely effects on 
species, and the baseline against which to assess those effects. For 
example, Bureau of Reclamation officials told us that the Services 
request that they assess the effects of dam operation and maintenance 
activities against a pre-dam environmental baseline (i.e., against 
conditions that existed before the dam was built). Reclamation 
officials said that they disagree with this definition of environmental 
baseline, asserting that it would be appropriate for construction of a 
new dam, but not for operation and maintenance of an existing one. 
Consultation regulations and the consultation handbook discuss the 
environmental baseline as including the past and present impacts of all 
federal, state, and private actions in the area of a proposed project 
so that the factors leading to, and possibly still affecting, the 
current status of a protected species can be understood. Reclamation 
officials told us that they are in the process of working out their 
differences with the Services on how effects will be analyzed for 
operations and maintenance at existing facilities.

Overall, action agency officials believe that the Services often 
request too much information and that, even though activities with 
minor impacts may be consulted on informally, informal consultations 
sometimes entail as much documentation and time as do formal 
consultations on more harmful activities. For example, Forest Service 
officials told us that disagreements on the information needed to 
assess effects has been a primary cause of mistrust with the Services, 
and Bureau of Reclamation officials said that the Services should more 
clearly explain what information is lacking and why the additional 
information is necessary for determining the likely effects of an 
activity.

According to officials at the Services, despite increased guidance, 
they still receive many biological assessments with insufficient detail 
to judge a project's effects, and in those cases the Services may make 
repeated requests for more detailed information until they are 
satisfied that the assessment adequately addresses the effects of the 
proposed activity on the species; this may increase the length of time 
it takes an action agency to complete the entire consultation process. 
FWS officials said that the Services would likely request the same 
level of detail and scientific analysis for projects that are not 
likely to effect listed species or designated critical habitat as they 
do for projects that are likely to effect them, because they generally 
need the same type of information to evaluate the potential effects to 
species; in this regard, FWS officials noted that they are compelled by 
the Administrative Procedure Act to articulate a satisfactory basis and 
explanation for their actions. FWS officials also told us that if an 
action agency is comfortable with its own determination of "no effects" 
for a project, the agency would not need to request the Services' 
concurrence, and accordingly, not need to respond to potential 
information requests. NMFS officials told us that the online template 
that the Services are developing for biological assessments should 
eliminate some of the disagreements about the content and adequacy of 
the assessments.

Because of these disagreements, action agency officials feel that, in 
practice, they are investing the same amount of resources for 
activities that are unlikely to harm species as for activities that are 
highly likely to harm species. That is, the officials feel that all 
proposed activities receive a similar level of scrutiny, require a 
similar amount of documentation, and consume a similar amount of time 
and effort in consultation, regardless of their potential effect. 
According to a Forest Service biologist with 25 years of experience, 
today's consultation approach means that the Forest Service has to 
consult on every activity, no matter how inconsequential. In effect, 
she said, the current process does not allow for any decisions to be 
based on the action agency biologists' professional judgments. Some 
action agency officials told us that, given persistent staffing 
constraints, this did not seem to be the most effective approach. 
Service officials noted that they must consult on activities that may 
affect species regardless of the potential severity of the effects. 
However, a NMFS official said that the streamlining process includes a 
risk-based approach to the level of effort devoted to consultations, in 
that streamlining teams will focus on proposed projects with a higher 
likelihood of adverse effects.

We identified several reasons for disagreements about the extent of 
consultation. Officials at the Services and action agencies alike cited 
the fear of litigation among the most significant concerns with the 
consultation process that often affects their decisions about whether 
or not to consult on projects and the level of documentation to 
complete. The Services have been affected by a number of federal court 
decisions in Idaho, Montana, Oregon, and Washington involving the 
consultation process. Past court decisions have sometimes required the 
Services to re-do analyses because their conclusions did not have 
adequate support, or required consultation on activities that had not 
gone through the process. Action agency officials said that this has 
led the Services 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 "bulletproof" or so comprehensive that they 
are impervious to legal challenge. Action agency officials told us that 
they believe such scrutiny and documentation is not always necessary, 
and that complying with such requests from the Services adds to the 
time and cost of consultation.

Conversely, officials at the Services asserted that the outcomes of 
court decisions have established the need to consult on all activities 
that may affect species, regardless of whether the effects are negative 
or positive, and to clearly document how they came to their decisions 
regarding the activities' effects on species and habitat. Some action 
agency officials recognized that the outcome of litigation similarly 
causes them to put more details in their biological assessments than 
they otherwise would. For example, Bureau of Reclamation officials said 
that increases in Endangered Species Act related litigation have 
increased the need for improved documentation that is more defensible 
in court, which might include more details about a project, additional 
graphics, maps, charts, and increased scientific analyses. Litigation 
has also resulted in more management, editing, and legal review. Forest 
Service officials also acknowledged the fear of litigation saying that 
it is pervasive across the Forest Service, and results in the agency 
including more details in its own analyses and documentation.

Another factor leading to disagreements is that some officials at the 
Services and action agencies still do not understand each other's 
programs or the consultation process, despite efforts to provide 
training, guidance, and other information. More than one-half of the 
respondents to our survey said they were concerned that new biologists 
at the Services do not receive sufficient training in the consultation 
process; respondents were also concerned that new action agency 
biologists do not receive sufficient training. Officials at the 
Services and action agencies agreed that biologists at the Services 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 biologists at the Services is 
one factor that contributes to this lack of familiarity with action 
agency activities. Also, a BLM official said that action agency 
biologists sometimes do not understand the potential complexity of the 
consultation process and underestimate the length of time it may take. 
This official said that training on the consultation process is needed 
for both new and experienced staff.

Personality problems were also identified among the top concerns for 
the Services and action agencies and an issue that can result in 
disagreements between the Services and action agencies about the extent 
of consultation needed. Officials at the Services and action agencies 
said that sometimes officials take unyielding positions on 
consultations, either on behalf of the activity or the listed species, 
and they waste time arguing about philosophical positions rather than 
rationally working through project effects. In these instances, the 
process takes much longer to complete than when participants are able 
to compromise. 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. In some areas, staff were able to overcome philosophical 
differences because they have been working together for several years 
and have developed trust. In areas where there is high staff turnover 
or unyielding personalities, trust has been harder to develop.

Nonfederal Parties' Concerns Depended on Their Expectations of the 
Consultation Process:

Nonfederal parties' concerns depended largely on their expectations of 
the consultation process. Nonfederal parties intent on carrying out an 
activity were concerned primarily about the cost and time required for 
the process, although in some cases factors other than consultation 
added to the cost or time. Environmental advocates, in contrast, were 
concerned mainly about whether the process effectively protects 
species. In addition, both applicants and environmental advocates were 
concerned that the process was not sufficiently transparent.

Applicants Were Primarily Concerned about Cost and Time:

Applicants are individuals, companies, or other organizations that 
receive federal authorization or funds to conduct certain activities, 
and the effects of these activities on protected species must be 
considered to determine if consultation is necessary. We interviewed 40 
applicants including individual landowners, companies, and industry 
groups who had been through the consultation process for activities 
such as private dock construction or repair, timber harvesting, and oil 
and gas or mineral development. Most of these 40 applicants expressed 
concern about the cost that the consultation process added to their 
activities. For example, more than half of these applicants hired 
consultants to prepare the biological assessment for consultation on 
their activity because, in some cases, the action agencies' workload 
was too great to prepare an assessment in a timely manner for them. 
Typically, hiring such consultants added thousands of dollars to the 
applicants' costs. Now that consultation is conducted as a part of the 
permitting process, permitting costs have increased to about 33 percent 
of construction costs for a typical dock, according to a homeowner's 
representative in Washington. In contrast, before the additional 
species listings in the late 1990s, the permitting process for such 
activities averaged about 5 percent of construction costs.

Most applicants also incurred costs associated with modifications to 
their proposed activities during consultation--modifications which 
they viewed as costly or unnecessary. For example, a timber company 
representative in Idaho said that a consultation between FWS and the 
Forest Service for a timber sale resulted in unnecessary costs after a 
bald eagle's nest (the bald eagle is a threatened species under the 
ESA) was discovered in the area of the sale while the company was 
preparing for harvest. FWS and Forest Service determined that the 
timber contained in a 1-mile buffer zone around the nest should not be 
harvested in order to protect the eagle. However, according to the 
company representative, forgoing that zone would have largely devalued 
the sale because it included nearly all of the high-value timber. After 
learning about the federal agencies' decision, the company paid over 
$6,000 to an outside consultant to review it; the consultant prepared a 
biological assessment that identified deficiencies in the federal 
agencies' scientific reasoning behind the decision. Ultimately, FWS and 
the Forest Service excluded a smaller area of timber, causing the 
company to forgo a much smaller share of the high-value timber--about 
22 percent--from the original sale. However, by the time this decision 
had been reached, the market value of the high-value timber had dropped 
substantially.

Most applicants were also concerned about the additional time needed to 
carry out their activities as a result of the consultation process. For 
example, an applicant for a U.S. Army Corps of Engineers permit to 
construct a marina in Washington waited more than 180 days for NMFS to 
issue its biological opinion--about 45 days longer than the 135 allowed 
once formal consultation is initiated. Beforehand, the applicant had 
already spent about 125 days in preconsultation, which included 
multiple requests from NMFS, spaced weeks or months apart, for 
additional project information that sometimes duplicated information he 
had already provided or that appeared unnecessary for initiating 
consultation. According to the applicant, the lengthy consultation 
risked delaying the construction for a year because of the limited time 
window for in-water work, which must be planned around fish presence 
and cannot take place during severe weather. NMFS officials recognized 
that final reviews of the draft biological opinion both at NMFS and the 
Corps took longer than usual, in part, because NMFS was working to 
standardize the quality of its biological opinions issued by various 
field offices. NMFS officials maintained, however, that all of the 
information requested was necessary for consultation and speculated 
that some information may have duplicated what was sent to state or 
local permitting agencies to which NMFS was not privy.

As another example, the average time for the Corps to process 19 
permits issued in 2002 for building private docks or similar activities 
on Lake Washington (near Seattle) was about 2 years. This time included 
the consultation time spent by the Services, as well as the time spent 
by the action agency to help the permit applicant complete a biological 
assessment for the consultation and meet other Corps requirements for 
the permit. Officials from both Services noted that the prolonged 
permitting process was due, in part, to the consultation workload 
generated after the late 1990s salmon and bull trout listings, as well 
as FWS' initial unfamiliarity with the effects of activities on the 
bull trout--the only aquatic species FWS manages in Washington. 
According to a Lake Washington homeowners' representative, before the 
additional species listings in the late 1990s, the permitting process 
for such activities generally took only 2 or 3 months.

Concerns about time and expense that an applicant attributed to the 
consultation process may sometimes stem from other factors about which 
the applicant may have been unaware. For example, an applicant seeking 
road access through a national forest to his private timberland, which 
he planned to partially harvest, waited 3 years for federal approval. 
According to the landowner, the timber on his land was devalued by as 
much as one-third while the permitting process ran its course. He 
attributed this wait and cost to consultation. Though the permitting 
process included consultation, the Forest Service biologist involved in 
the permit said that efforts to comply with the National Environmental 
Policy Act, rather than consultation, protracted the permitting 
process. Similarly, Forest Service officials said that, in general, the 
National Environmental Policy Act is often the limiting factor in 
delayed fire projects.

Some applicants found the consultation process to be confusing or 
unclear. According to officials at the Services, applicants--
particularly, first-time applicants--often apply for permits "late," 
when they are ready to proceed with a project that has not taken listed 
species into account. In some cases, applicants were unaware of 
consultation requirements or the time frames involved. For example, a 
representative from a local government in Oregon, overseeing her 
agency's first project to restore fish habitat, first learned of the 
federal permitting and consultation requirements after receiving state 
approval for the project. She was concerned about the time needed for 
permitting and consultation because her agency faced pressure to finish 
the project before the funding expired and the seasonal work period 
ended. In this case, the project was completed on time because NMFS and 
the U.S. Army Corps of Engineers worked hard to complete the permitting 
and consultation within her time constraints.

Environmental Advocates Were Concerned about Whether the Process 
Protects Species:

Environmental advocates that we contacted were primarily concerned that 
the consultation process, as implemented, does not go far enough to 
protect listed species. According to these advocates, consultations may 
not adequately protect species, in part, because of weak oversight by 
the Services. Advocates said that the Services provide weaker oversight 
than in the past over proposed actions undergoing consultation for 
reasons such as understaffing, pressure to speed up the consultation 
process, the Services' focus on collaboration with the action agencies, 
and political pressure to avoid jeopardy biological opinions. Advocates 
were also concerned about new regulations that could further reduce 
oversight. These regulations allow action agencies to self-certify 
certain activities related to wildfire prevention without consulting 
with the Services, if certain procedures that involve the Services are 
followed.

Advocates also suggested that the Services may not be adequately 
protecting species because of a limited understanding of species' 
conditions. One environmental advocate said that these limitations 
impair the Services' ability to predict the effects of proposed 
activities, including whether they could jeopardize species' continued 
existence. FWS officials noted that their biological opinions include 
sections on the status of species in which they review the known 
information about a species and its biology. Two advocates said that 
one reason why the Services may not sufficiently understand species' 
conditions is that action agencies sometimes incorrectly determine that 
an action will not affect listed species. Since consultation is not 
required when an action agency makes a "no effects" determination, the 
Services may never know that the activity occurred and cannot take it 
into account when reviewing the potential effects of other activities. 
One advocate expressed concern that the Services and action agencies 
would be in a poorer position to predict the effects of proposed 
activities under the new regulations that allow self-certification 
because they might be unaware of activities permitted by other federal 
agencies using such certification. For example, one BLM district or 
national forest might not know the effects of other agencies' 
activities elsewhere in a species' range, and the combined effects of 
those activities could be harmful.

All Nonfederal Parties Shared Concerns about Transparency:

Applicants and environmental advocates expressed concern that the 
consultation process lacks transparency. The majority of the nonfederal 
parties wanted a greater role in the consultation process, including 
more timely information about the action agencies' and the Services' 
deliberations or an opportunity to provide input. For example, one 
official from a group representing irrigators in Idaho described his 
organization's main role in consultations as "pounding on the door of 
[the Bureau of Reclamation]," on its constituents' behalf, in order to 
receive timely updates on the agency's deliberations with the Services 
and to provide input to the process. The representative noted that his 
constituents have a major financial stake in the outcome of 
consultations on the bureau's water storage and delivery 
infrastructure, which provides water for raising crops, livestock, or 
other activities. Past consultations, for example, have obligated 
Reclamation to increase river flows to benefit listed fish species, 
which could affect the water available to his constituents.

In addition, representatives from several environmental advocacy groups 
said that land management decision-making processes, such as 
consultations, 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 environmental group's 
representative said that outside parties need to resort to requests 
under the Freedom of Information Act in order to get information about 
consultations, and that this wastes resources. To help alleviate this, 
he suggested that the public receive notification when consultation is 
taking place and be allowed to submit written comments. Officials at 
the Services pointed out that the Endangered Species Act does not 
provide for public involvement in the consultation process as it does 
for many other components of the act. Under Endangered Species Act 
regulations, certain procedural opportunities--such as the opportunity 
to submit information during the consultation and to review and comment 
on the draft biological opinion--are provided only for an applicant 
seeking federal approval for an activity.

Conclusions:

The consultation process and many other aspects of the Endangered 
Species Act remain contentious and controversial after 30 years, and 
the situation shows no signs of changing. Efforts by the Services and 
action agencies to improve the process have had some clear benefits--
improving interagency relationships and information dissemination 
about the process, and reducing workload in some cases. Still, 
frustration and confusion continue. Action agencies believe the 
Services sometimes go beyond what the act calls for, while the Services 
argue that they are simply fulfilling their legal obligations to 
protect species within the constraints of limited resources. Both the 
Services and action agencies recognize that fear of litigation is 
affecting the process. Clearly, there is no boilerplate approach to 
handling consultations. The nature of different species' biologies, 
dynamic ecosystems, and the multitude of activities performed and their 
various levels of effects, makes the consultation process a difficult 
task that is dependent on understanding specific conditions and 
exercising a healthy dose of best professional judgment. Hence, even 
with a perfect process, there will always be disagreements.

However, we believe that given the importance of the consultation 
process on species' protection and federal and nonfederal activities, 
the Services and action agencies should do more to air persistent 
disagreements, discuss their respective positions openly, and identify 
additional steps that are needed to enhance a consistent understanding 
of what is required under the act. Improved information on the 
consultation process itself, including the level of effort devoted to 
preconsultation, is an important part of this effort as there are 
continual complaints about the lengthiness of and burden posed by the 
process. In addition, given constant concerns about the sufficiency of 
resources, it is imperative that the Services and action agencies take 
steps to ensure that they are using resources effectively, particularly 
by gathering more complete and reliable information about the level of 
effort devoted to the process and evaluating the efficacy of steps 
taken to improve the process.

Recommendations for Executive Action:

We are making four recommendations to improve implementation of the 
Endangered Species Act consultation process.

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

* We further recommend that the Secretaries of the Interior and 
Defense, the Under Secretary of Commerce for Oceans and Atmosphere, and 
the Chief of the Forest Service, work together to:

* resolve disagreements about when consultation is needed and how 
detailed an analysis is necessary given a proposed activity's likely 
effects on species or habitat, and ensure that their agreements are 
disseminated quickly to all staff involved in consultations as well as 
to the public;

* refine guidance, as needed, on the type and specificity of 
documentation required in consultations; and:

* evaluate the efficiency and effectiveness of efforts to improve the 
consultation process, such as programmatic consultations and 
streamlining, and use the evaluation results as a basis for future 
management actions.

Agency Comments and Our Evaluation:

We provided copies of our draft report to the Departments of the 
Interior and Defense, NOAA, and the Forest Service. The Departments of 
the Interior and the Army, NOAA, and the Forest Service provided 
official written comments. (See appendixes II through V, respectively, 
for the full text of the comments received from these agencies and our 
responses.):

The departments, NOAA, and the Forest Service generally concurred with 
our findings. The Army commented that the report did a good job of 
identifying the multiple problems that contribute to delays and often 
to increased costs at U.S. Army Corps civil works and regulatory 
projects as preconsultation and informal and formal consultation 
proceed. The Forest Service commented that the report accurately 
describes many of the topics associated with interagency cooperation 
under the consultation process--with both the process itself and with 
agency use and implementation of it. The Department of the Interior, 
NOAA, and the Forest Service commented that the report should better 
reflect the benefits of preconsultation and consultation. We agree and 
have incorporated additional information on these issues in the report.

Concerning our recommendations, the departments, NOAA, and the Forest 
Service concurred with our recommendation to capture the level of 
effort devoted to preconsultation, although the Forest Service, NOAA, 
and the Department of the Interior noted concerns about finding an 
adequate but not overly burdensome process to do so. We discussed this 
difficulty in our draft report and recognize that the data management 
solution might not involve a precise tracking of individual official's 
time spent on specific consultations but instead might consist of 
higher-level indicators of the effort devoted to a consultation. Our 
recommendation is intended to provide the agencies with flexibility in 
finding an acceptable solution. The Army suggested that we clarify and 
strengthen this recommendation to ensure that the Services and the 
action agencies we reviewed are equal partners in efforts to improve 
data management related to preconsultation. We have modified this 
recommendation to ensure that our intent that all agencies be involved 
in identifying a data management solution is clear.

The Departments of the Army and the Interior and NOAA agreed with our 
second recommendation, which directs the departments, NOAA, and the 
Forest Service to work together to resolve disagreements about when 
consultation is needed and how detailed an analysis is sufficient, but 
the Forest Service did not. The Forest Service commented that this 
recommendation was unnecessary because regulations set forth the 
requirements for consultation. We are retaining the recommendation 
because, while the criteria for consultation are provided in the 
regulations, the disagreements we found during our audit work indicate 
that clarification beyond these regulations is necessary. While the 
Army agreed with this recommendation, it suggested that the 
recommendation should be more specific as to how to resolve 
disagreements. We have not modified this recommendation because we do 
not want to prescribe "interagency procedures," as suggested by the 
Army; we believe the departments, NOAA, and the Forest Service should 
have flexibility in determining what method is most effective, 
including proposing regulatory or legislative changes if needed.

All the agencies agreed with our recommendations to refine guidance and 
to evaluate the efficiency and effectiveness of improvements made to 
the consultation process. The Department of the Interior, NOAA, and the 
Forest Service also provided other comments and technical 
clarifications on the draft report. We have made changes where 
appropriate.

As agreed with your office, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 5 days 
from the report date. At that time, we will send copies of this report 
to the Secretaries of Defense and the Interior, the Under Secretary of 
Commerce for Oceans and Atmosphere, and the Chief of the Forest 
Service, and to 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 [Hyperlink, 
http://www.gao.gov]. If you or your staff have any questions, please 
call me at (202) 512-3841. Key contributors to this report are listed 
in appendix VI.

Signed by: 

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

[End of section]

Appendixes: 

Appendix I: Objectives, Scope, and Methodology:

The Chairman, Subcommittee on Fisheries, Wildlife, and Water, Senate 
Committee on Environment and Public Works, and Senator Baucus, asked us 
to (1) assess the federal data available on consultations completed in 
Idaho, Montana, Oregon, and Washington, including data on the number 
completed and their timeliness, for fiscal years 1998 through 2003; (2) 
identify steps taken by the Fish and Wildlife Service, the National 
Marine Fisheries Service, and other federal agencies to improve the 
consultation process; and (3) discuss concerns of federal officials in 
the Services, officials with other federal agencies, and nonfederal 
parties about the process. As agreed with the Chairman, we limited our 
evaluation to four action agencies--the U.S. Army Corps of Engineers, 
Interior's Bureau of Land Management and Bureau of Reclamation, and 
Agriculture's Forest Service--for consultations conducted in Idaho, 
Montana, Oregon, and Washington. To assess the data available on 
consultations, we obtained data on the number of Fish and Wildlife 
Service (FWS) and National Marine Fisheries Service (NMFS) 
consultations with the four action agencies for fiscal years 2001 
through 2003. These data are being used primarily to provide context on 
consultations in Idaho, Montana, Oregon, and Washington.

We also requested data on consultation timeliness from NMFS regarding 
consultations with the U.S. Army Corps of Engineers, Interior's Bureau 
of Land Management and Bureau of Reclamation, and Agriculture's Forest 
Service in Idaho, Oregon, and Washington for fiscal years 1999 through 
2003. (NMFS had no consultations in Montana with any of the four action 
agencies included in our review.) Timeliness data on consultations for 
this entire period were not readily available from NMFS. According to 
officials knowledgeable about these data, NMFS did not maintain a 
central regional database for consultations data until January 2001. 
Timeliness data on consultations that occurred before that date could 
be obtained from individual field offices; however, these data would 
not be complete and would have to be supplemented with data from the 
administrative record, according to officials knowledgeable about the 
data. As such, we used only the data from the NMFS regional system for 
the 3-year fiscal period 2001 through 2003.[Footnote 22]

To assess the reliability of the timeliness data maintained by NMFS, we 
attempted to compare information contained in the administrative record 
with that in the database. We did so by asking biologists to discuss 
with us the administrative files for a few consultations they had 
conducted. However, most of the consultations chosen by the NMFS 
biologists were conducted in 1999 before the regional database was 
established. As such, we took further steps to ascertain the 
reliability of the timeliness data maintained in NMFS's regional 
consultations database. We interviewed an official knowledgeable about 
this database to determine whether timeliness data in this system are 
reasonably complete and accurate. This official had reasonable 
confidence in the data elements we analyzed. We also performed data 
reliability tests on the timeliness elements of this database to find 
missing data, transposed dates, or duplicate records. We allowed NMFS 
officials the opportunity to correct data errors and insert missing 
data. We then calculated error rates for the databases we examined; the 
error rates for fiscal years 2001, 2002, and 2003 were 21, 19, and 10 
percent, respectively. We determined that the timeliness data on 
consultations maintained in the NMFS regional consultations database 
were sufficiently reliable for the purposes of this report, as long as 
the timeliness data are presented in the context of these error rates. 
NMFS officials said that these data should be sufficient to serve as 
indicators of the number and timeliness of consultations.

We also requested data on consultation timeliness from FWS regarding 
consultations with the U.S. Army Corps of Engineers, Interior's Bureau 
of Land Management and Bureau of Reclamation, and Agriculture's Forest 
Service in Idaho, Montana, Oregon, and Washington for fiscal years 1999 
through 2003. Such timeliness data on consultations were not readily 
available from FWS. During the time of our review, FWS did not maintain 
a central regional database for consultations data; each of the six 
field offices in Idaho, Montana, Oregon, and Washington had developed 
and maintained separate systems for storing consultation data. We 
interviewed officials knowledgeable about these databases and examined 
the associated data dictionary. During the time of our review, five of 
the six field offices in Idaho, Montana, Oregon, and Washington did not 
consistently record a key data point required to calculate timeliness: 
the date a consultation was initiated. They did record the date a 
consultation package was received in their office; however, according 
to a FWS official, the interval between those two dates can sometimes 
be significant. As such, the systems that did not record the date a 
consultation was initiated would yield timeliness data that 
consistently overestimated the time a consultation took to complete. 
Because these data were not reliable enough for our purposes, we did 
not use those systems for our analysis. The only system that did record 
the date a consultation was initiated was, at the time of our review, 
the one maintained by the FWS office in Portland, Oregon.[Footnote 23] 
Accordingly, we used this system to analyze timeliness for 
consultations conducted by that FWS office with the U.S. Army Corps of 
Engineers, Interior's Bureau of Land Management and Bureau of 
Reclamation, and Agriculture's Forest Service in Idaho, Oregon, and 
Washington (the vast majority of the Portland office's consultations 
were in Oregon). From this system, we used data for fiscal years 2001 
through 2003 to ensure consistency with our analysis of NMFS data from 
the same period.

To assess the reliability of the timeliness data in the FWS Portland, 
Oregon, office's database, we similarly compared information contained 
in the administrative record with that contained in the database, to a 
limited extent. We examined consultation records selected by biologists 
and found that, in some instances, information in the administrative 
record was not in the database. Additionally, some information was 
neither in the administrative record nor in the database and had to be 
relayed to us by the biologist who worked on the consultation. We 
determined that the best information on a specific consultation was the 
administrative record, coupled with the recollections of the biologist 
who worked on the consultation. However, asking the FWS to provide us 
with copies of the administrative file for numerous records and access 
to each biologist who worked on those consultations seemed unduly 
burdensome. Accordingly, we took further steps to ascertain the 
accuracy and completeness of the timeliness data on consultations 
maintained in the Portland office's database. We interviewed an 
official knowledgeable about this database to determine whether the 
timeliness data in this system are reasonably complete and accurate. 
This official had reasonable confidence in the data elements we 
analyzed. We also performed data reliability tests on the timeliness 
elements of this database to find missing data, transposed dates, or 
duplicate records. We allowed FWS officials the opportunity to correct 
data errors and insert missing data. We then calculated error rates for 
the databases we examined; the error rates for fiscal years 2001, 2002, 
and 2003 were 0, 6, and 14 percent, respectively. We determined that 
the timeliness data on consultations maintained in the FWS Portland 
field office consultation database were sufficiently reliable for the 
purposes of this report, as long as the timeliness data are presented 
in the context of these error rates.

To identify improvements to and concerns about the consultation process 
in the four states, we interviewed officials of both Services and the 
four action agencies: the U.S. Army Corps of Engineers, the Bureau of 
Land Management, the Bureau of Reclamation, and the Forest Service. We 
administered--via telephone or in person--a comprehensive survey to a 
nonprobability sample of 66 officials of the Services and the four 
action agencies.[Footnote 24] The practical difficulties of conducting 
any survey may introduce other types of errors, commonly referred to as 
nonsampling errors. For example, differences in how a particular 
question is interpreted, the sources of information available to 
respondents, or the types of people who do not respond can introduce 
unwanted variability into the survey results. We included steps in both 
the data collection and data analysis stages for the purpose of 
minimizing such nonsampling errors. We pre-tested this survey and, 
based on the results and comments received during pre-testing, made 
appropriate revisions. To help ensure that questions raised by the 
respondents were addressed similarly by each interviewer (i.e., to 
address inter-rater reliability), we included all of the primary 
interviewers in the pre-tests, and often more than one interviewer 
participated in administering the surveys.

To ensure appropriate survey coverage, we selected a variety of Service 
and agency field offices to survey based on geographic location, 
workload, and collocation with other offices. At these locations we 
obtained the opinions of officials representing different points of 
view within the consultation process, including fisheries biologists, 
wildlife biologists, program managers, and office managers. These 
officials included Service biologists responsible for working with the 
four action agencies, and action agency biologists responsible for 
conducting consultations in these locations, including action agency 
officials responsible for the agencies' various primary programs--
including recreation, timber, and other programs. In cases where 
numerous potential interviewees met our selection criteria, we selected 
among them randomly. The sample of agency officials interviewed was not 
intended to be representative of all the officials involved in the 
consultation process in the four states. In total, we surveyed 40 
biologists and 26 program officials.

Through our survey we gathered officials' perceptions about 
consultations, based on their experience with them since the late 
1990s. The survey included questions about what works well in the 
consultation process, whether the process has improved or worsened 
since the late 1990s, what concerns people have about the process, and 
what improvements, if any, have been made to the process. To identify 
very important concerns, we asked respondents to identify, from a list 
of concerns, any that they considered to be "very important," as well 
as their other concerns that did not appear in the list.

In addition, we conducted open-ended interviews with 143 officials, 
whom we selected because of their geographic locations or their roles 
in consultation. We interviewed officials from the following locations:

* FWS' headquarters in Washington, D.C.; regional office in Portland, 
Oregon; California-Nevada operations office in Sacramento, California; 
and field offices in Boise and Chubbock, Idaho; Helena, Montana; 
Klamath Falls and Portland, Oregon; and Lacey, Spokane, and Wenatchee, 
Washington;

* NMFS' headquarters in Washington, D.C.; representatives from the 
Northwest Regional office in Seattle, Washington, and Portland, Oregon; 
and field offices in Boise and Salmon, Idaho; and Ellensburg and Lacey, 
Washington;

* the U.S. Army Corps of Engineers' Northwest Division office in 
Portland, Oregon; regulatory office in Helena, Montana; and district 
offices in Portland, Oregon; and Seattle and Walla Walla, Washington;

* the Bureau of Land Management's headquarters in Washington, D.C.; 
area office in Billings, Montana; and field offices in Boise, Challis, 
Coeur D'Alene, Cottonwood, Pocatello, and Salmon, Idaho; Billings and 
Missoula, Montana; Coos Bay, and Klamath Falls, Oregon; and Spokane and 
Wenatchee, Washington;

* the Bureau of Reclamation's headquarters in Lakewood, Colorado; 
Office of Policy in Washington, D.C.; Pacific Northwest regional office 
in Boise, Idaho; Montana area office in Billings, Montana (Great Plains 
region); and Lower Columbia area office in Portland, Oregon; and:

* the Forest Service's headquarters in Washington, D.C.; regional 
offices in Missoula, Montana, and Portland, Oregon; the ranger district 
in Leavenworth, Washington; district offices in Lost River and Challis, 
Idaho; the Salmon-Challis National Forest, in Salmon, Idaho; the 
Gallatin National Forest in Bozeman, Montana; the Lolo National Forest 
in Missoula, Montana; the Rogue River and Siskiyou National Forests in 
Medford, Oregon; the Gifford Pinchot National Forest in Vancouver, 
Washington; and the Olympic National Forest in Olympia, Washington.

We also interviewed 44 nonfederal parties, including applicants--
nonfederal parties seeking federal authorization or funds to conduct an 
activity subject to consultation--and representatives of environmental 
advocacy groups. We identified these interviewees either through a 
referral from a Service or action agency official or through our 
knowledge of their involvement and interest in consultations. The 
nonfederal interviewees included representatives of:

* port authorities;

* local governments;

* irrigation districts;

* private industry, including logging, ranching, and oil and gas 
exploration;

* environmental groups; and:

* homeowners.

From these parties we solicited information on improvements made to the 
consultation process, concerns about the process, and suggestions for 
further improvement.

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

[End of section]

Appendix II: Comments from the Department of the Interior:

United States Department of the Interior:
OFFICE OF THE ASSISTANT SECRETARY:

POLICY, MANAGEMENT AND BUDGET
Washington, DC 20240

FEB 27 2004:

Mr. Barry T. Hill:

Director, Natural Resources and Environment 
U.S. General Accounting Office:
441 G Street, N.W. 
Washington, D.C. 20548:

Dear Mr. Hill:

Thank you for providing the Department of the Interior the opportunity 
to review and comment on the draft U.S. General Accounting Office 
report entitled, "Endangered Species: Federal Agencies Have Worked to 
Improve the Consultation Process, but More Management Attention is 
Needed, " GAO-04-93, dated January 20, 2004. In general, we agree with 
the findings and most of the recommendations in the report, however, we 
believe that the report would benefit froin an acknowledgment of some 
of the benefits derived from section 7 consultation.

The enclosure provides comments from the U.S. Fish and Wildlife 
Service, Bureau of Reclamation, and Bureau of Land Management. We hope 
these comments will assist you in preparing the final report.

Sincerely,

Signed by: 

P. Lynn Scarlett 
Assistant Secretary 
Policy, Management and Budget:

Enclosures:

Enclosure:

U.S. General Accounting Office Draft Report:

"Endangered Species: Federal Agencies Have Worked to Improve the 
Consultation Process, but More Management Attention is Needed" GAO-04-
93:

U.S. Fish and Wildlife Service:

GENERAL COMMENTS:

Change "act" to "Act" throughout the report when referring to the 
Endangered Species Act.

It has recently come to our attention that the figures used by GAO to 
determine the timeliness of formal section 7 consultations completed by 
the Portland Fish and Wildlife Office were incorrect. Use of the proper 
figures indicates that the Service met established timelines 86 percent 
of the time rather than the 68 percent of the time as identified in the 
draft report. Please make the appropriate corrections throughout the 
report.

We believe that the report would benefit from an acknowledgment of the 
benefits that are often derived from section 7 consultation rather than 
simply stressing the costs. For example, while in some circumstances 
significant time may be expended in section 7 consultation, if the 
consultation process results in projects being carried out in a manner 
that better maintains the integrity of the ecosystems of concern, this 
may provide added flexibility for action agencies to implement their 
future activities. In these situations, relatively minor investments of 
time can result in long-term benefits that compound over time as future 
actions that may otherwise run into environmental roadblocks can be 
implemented because proper planning was employed.

Similarly, the report seems to suggest that the only important factor 
in evaluating the efficiency and effectiveness of section 7 
consultation is its timeliness. Although the Service strives to 
complete all consultations within established timeframes, there are 
many instances when doing so is not in the best interest of the action 
agency, the applicant, or listed species being affected by the proposed 
action. One example is a situation where a critical study will soon be 
completed that allows for a more precise consideration of where and 
when the incidental take of listed species is likely to occur. By 
waiting for the results of this study, we can more accurately represent 
those effects and more effectively develop measures to minimize the 
impacts of the take on the species. This can often result in better 
maintaining future flexibility for action agencies and applicants. We 
recommend that the report place greater emphasis on the fact that there 
may be a number of valid reasons for a consultation to exceed 
established timeframes, and that such delays may occur at the request 
of the action, agency.

The report should also acknowledge that: (1) the implementing 
regulations for section 7 of the ESA provide for extensions when 
additional data would provide a better information base from which to 
formulate a biological opinion: and (2) timely consultations are very 
dependent on the quality of information received from the Federal 
action agency.

Throughout the report, references are made "pre-consultation" attempts 
are made to bundle these activities into the timeframes measuring 
consultation while pointing out that the Services do not have an 
effective mechanism to measure this time. It should be noted that the 
pre-consultation period generally precedes finalization of the proposed 
action and represents the period in which modifications to the action 
can be made based on technical assistance from the Services. On that 
basis, it is premature to include this period as part of the statutory 
consultation process since the Federal action agency has not completely 
defined its action, which ultimately may not even require consultation. 
In addition, it is important to recognize that, during this time 
period, action agencies typically develop information that is 
applicable for processes other than ESA section 7 consultation (e.g., 
the National Environmental Policy Act process, the Federal Land Policy 
And Management Act process, etc.). Even if it were determined to be 
useful to track such information. it is not typically appropriate to 
attribute this entire time period solely to the section 7 pre-
consultation process. In addition, during the pre-consultation process, 
work on the action subject to section 7 consultation may be sporadic, 
that is, long periods of weeks, months, or even years may pass without 
significant work being completed on the proposed action. For these 
reasons, we do not believe that the report accurately portrays the pre-
consultation process.

Regarding the recommendations, the report and its recommendations focus 
on the timeliness of the consultation as a measure of the efficiency of 
the section 7 consultation process. However, timeliness is not 
necessarily the only or the best measure of efficiency. The 
effectiveness of the results of consultation in ensuring that Federal 
activities are implemented within the context of species conservation 
is also important. Furthermore, the Service has examples showing that 
when action agencies design their activities with this context in mind, 
the timeliness of consultations also is improved. To this end the 
Service recommends that the report contain a recommendation for the 
Services and action agencies to make better use of section 7(a)(1) of 
the ESA to improve both the efficiency and the effectiveness of the 
7(a)(2) consultation process.

SPECIFIC COMMENTS:

Page 1 second paragraph. second sentence: Please add "designated" 
before "critical habitat.":

Page 1, second paragraph, third sentence: Please add "or similar 
document' after"... an agency submits a biological assesment' to better 
reflect the flexibility of the section 7 process.

Results in Brief:

Page 3, second paragraph, third sentence: We recommend adding the 
following parenthetical to the end of this sentence -"(often referred 
to as program-level' or "programmatic" consultation)":

Page 4. first full paragraph, third to last sentence: Please 
add"Administrative Procedure Act," before "Endangered Species Act." 
Under the APA, agencies must articulate a satisfactory basis and 
explanation for their actions including a rational connection between 
the facts found and the choices made. For additional information on 
this subject, please find the enclosed 1999 guidance provided by the 
United States Department of Justice.

Pace 4 first full paragraph, second to last sentence: Please replace"... 
for their decisions" at the end of this sentence with "supporting their 
decisions":

Background:

Page 6, first Full paragraph, second sentence: Please modify this 
sentence to read"Consultation can be resolved using the informal 
process when the agency has determined that an activity may affect, but 
is unlikely to adversely affect..":

Page 6, last paragraph: It should be recognized that to a great extent 
the rarity of jeopardy opinions can be attributed to the collaborative 
work accomplished in pre-consultation.

Page 6, last paragraph, first sentence: Please add'br similar 
document'to the end of this sentence.

Page 6, last paragraph,second sentence: Please change" ... whether the 
activity could jeopardize ..:'to"... whether the activity is likely to 
jeopardize .."and add "designated" before "critical habitat.":

Completeness of Data Section:

Pare 11, first paragraph, last sentence: It is not appropriate to 
attribute this entire time to the effects of section 7 pre-
consultation.

Page 12, last paragraph: Often delays in completion of informal 
consultations result from mutual agreements between the Services and 
action agencies. Such agreements are typically related to the action 
agency's work schedule. For example, an action agency may request that 
the Services delay completion of informal consultation on a group of 
actions that they do not anticipate being able to implement for several 
months due to the availability of appropriate staff in favor of 
completion of consultation on other projects that they anticipate being 
able to implement fairly soon. While it is true that the Services 
databases often do not track such information, and perhaps these 
databases should track this inforn-nation, it should be pointed out 
that at least a portion of these delays are the result of mutual 
agreement. While this information is presented a couple of pages later, 
by having it separated from the subject paragraph, the relevance of 
this point is lost.

Page 15, Available Data subsection: Please see our earlier comments 
regarding the amount and type of work that occurs during the pre-
consultation period and the appropriateness of attributing this time 
delay to the ESA. While much of this information is presented in the 
last paragraph of this subsection, it would be more effective if this 
information were better integrated into the first paragraph of this 
subsection.

Improvement Efforts Section:

Page 16, last paragraph: The report fails to address staffing levels 
required to implement "Level 1 streamlining." Please note in the report 
that a commitment to streamlining generally requires a greater 
commitment of staff resources.

Page 17, last sentence: Please change "accomodating" to "fulfilling." 
In addition, we recommend that the information. provided in this 
paragraph be presented within the context that timely consultations are 
very dependent on the quality of the information the Services receive 
from the action agency.

Page 19, Figure 6, Diamond-shaped box: The question listed in this box 
is not appropriate. A, more appropriate question would be"Has the 
action agency provided sufficient information to fulfill the initiation 
requirements of 50 CFR 402.14(c)?':

Page 21, last paragraph: The programmatic consultation process 
described in this paragraph has been determined in a series of district 
and Ninth Circuit court rulings to be invalid because it fails to 
provide for project-specific review and consultation. As a result, the 
Service has modified this consultation process to be consistent with 
the process described in the preceding paragraph of the report. We 
recommend that the paragraph be omitted.

Page 23, second paragraph: We recommend replacing this paragraph with 
the following text: "Third, the Services and action agencies have taken 
advantage of the Internet and internal agency web pages to disseminate 
information on the consultation process and on specific consultations. 
The Services, the Bureau of Land Management, and the Forest Service 
have an interagency web site that links to the Endangered Species Act, 
its regulations, and key guidance documents. Both Services have 
Intranet and internal web sites with agency guidance. NMFS has 
developed an on-line Biological Assessment template and is working with 
the FWS to standardize this template for both agencies. Both NMFS and 
the FWS have implemented searchable on-line consultation tracking 
systems so that action agencies (e.g., the Army Corps of Engineers) and 
others can identify the status of any consultation. Once a user has 
located a specific consultation in either tracking system they can 
easily link to information on that consultation provided by the other 
Service and, for example, with any Corps permit associated with the 
consultation. NMFS currently posts final biological opinions on their 
web site and is now working to link those documents with their 
consultation tracking system. The FWS has implemented a procedure for 
collecting all final biological opinions in digital format and is 
exploring the feasibility of posting them on their web page and linking 
them to their consultation tracking system:':

Page 26, last paragraph: The Service has found that by engaging action 
agencies early during either pre-consultation or section 7(a)(1) 
program reviews, action agencies often develop a better understanding 
of the specie,' conservation needs and how their actions may affect 
them. This commonly leads to project designs that better incorporate 
species conservation. Because the bulk of the time in consultation is 
usually spent working with action agencies to determine how their 
proposed actions will affect the conservation needs of the species, 
actions that come to the Service with these factors already addressed 
typically require far less effort in consultation.

Pages 26 - 30: The graphs on these pages present a lot of information 
that is not discussed. While the report discusses consultations that 
exceed established timeframes, these graphs present data showing that 
many of the Services' consultations are conducted well ahead of 
established timeframes. To present a fair and accurate picture that may 
better assist in improving the section 7 consultation process, the same 
consideration should be given to consultations completed early as to 
consultations completed late.

Page 31: Reducing the total time spent in section 7 consultation is not 
the only goal of 'streamlining:' An additional goal is to provide more 
timely service to action agencies so their consultations are completed 
when they are ready to implement their actions. Thus, if the total 
amount of time spent completing consultation has not been shortened, 
but if by engaging in pre-consultation the work is completed earlier, 
i.e., when the action agency is ready to implement their action, then 
the Service, as well as the action agency, typically consider this to 
be a success.

Page 32, first full paragraph last two sentences: We agree with the 
assessment of vulnerability presented here and it is consistent with 
the guidance received from the Department of Justice. For this reason, 
the Service is recommending that all programmatic consultations include 
provisions for site-specific (or project-specific) analysis. Thus, 
although actions covered by programmatic consultations may be 
vulnerable to legal challenge if they do not have a site-specific 
analysis, the report should note that programmatic consultations can be 
structured to reduce or eliminate this vulnerability.

Federal Concerns Section:

Page 33, top paragraph first full sentence: The Services do not have 
the authority to "require" consultation. Action agencies determine for 
themselves when consultation is "really necessary!' This sentence would 
be more appropriate iftequire consultation" were replaced by "recommend 
consultation:':

Page 36, first full paragraph, last two sentences: The Service very 
much respects the professional expertise housed in many action 
agencies; however, this expertise, the information available, and the 
perspective of action agencies typically differ from the Services. 
While action agencies typically focus on the conservation of the 
species on their lands (or in the case of a permitting agency such as 
the Army Corps, on their project sites), the Service is charged with 
the responsibility of addressing the conservation of the species 
throughout its range.

Page 36. last paragraph second sentence: This sentence misrepresents 
the consultation handbook. Please add "informal" in front of`... 
consultation should be conducted on ..:'and delete the 
word"negligibld'from this sentence (see page 2-3 of the consultation 
handbook). Also, please note that informal consultation is the process 
used to determine whether effects are discountable, insignificant, or 
completely beneficial.

Page 38, first sentence: In the Pacific Coast Federation of Fisherman's 
Association v. National Marine Fisheries Service court ruling cited in 
footnote 15 of the report, the Court found that the Services must 
evaluate "negative short-term effects." We recommend the final report 
clearly convey that all discretionary Federal actions that are likely 
to adversely affect (in the short or 
long-term) listed species or critical habitat must comply with section 
7(a)(2) of the Endangered Species Act through the formal consultation 
process. When completing this analysis, the Service also considers the 
long-term benefits of the action; however, one must recognize the 
importance of ensuring that the species survives the short-term 
negative effects and persists within the action area so it will be 
present to reap the long-term benefits of the proposed action. Action 
agencies do not always consider such factors. In addition, without 
access to range-wide information regarding the status of the species, 
it may not be possible to accurately evaluate the short-term negative 
effects. This further points to the distinctions between the roles of 
the action agencies and the Services in the consultation process. 
Finally, we also recommend that the report acknowledge that many 
actions with long-term benefits to listed species result in short-term 
adverse effects that involve incidental take of these species, which is 
authorized through the formal consultation process.

Page 39, first sentence: The Service does not require additional 
research to be conducted during the section 7 consultation process. 
While additional studies or monitoring are sometimes recommended when 
the information presented by the action agency is insufficient to 
ensure that the action agency can fulfill their 7(a)(2) 
responsibilities, such work is not required by the Service. However, 
failure to provide sufficient information to adequately characterize 
the anticipated effects of the proposed action may cause the Service to 
rely on assumptions that increase the likelihood of a jeopardy or 
adverse modification determination; therefore, action agencies may, at 
times, consider the Service's recommendations to be requirements.

Page 39, second paragraph, third sentence: Section 7 does not use the 
practicability standard as does section 10 and the Service has been 
very clear on the point that section 7 is not to be used as a tool to 
leverage species recovery. Regarding Figure 18, without the plantings 
of shrubs and trees described in the text of this figure, the bank 
stabilization achieved by the project would only be temporary. 
Solutions that avoid jeopardizing the continued existence of a listed 
species only in the short-term do not fulfill action agencies 
responsibilities under section 7(a)(2).

Page 41, first paragraph, last sentence: The Service strongly 
encourages this approach as it appears to meet the intent of the 
statute, which contains the title of 'Interagency Cooperatiori'for 
section 7.

Page 41, second paragraph, second sentence: Action agencies determine 
for themselves the level of documentation needed to support a 
conclusion that a proposed action is not likely to affect listed 
species. The Service typically only requests information supporting 
such determinations if the action agency requests the Service's 
concurrence on their determination (which is not required by statute or 
regulation). if asked for its professional opinion regarding the action 
agency's determination, the Service is very likely to request the same 
level of detail and scientific analysis as it does for actions that are 
likely to have negative effects, because this is needed to evaluate the 
potential for a proposed action to affect listed species. Please note 
that if an action agency is comfortable with their "no-effect" 
determination they do not need to seek the concurrence of the Service.

Page 41, second paragraph, fifth sentence to the end of the Paragraph: 
In the past there has been confusion regarding how to evaluate and use 
the environmental baseline for ongoing actions 
such as dam maintenance. Given the level of detail provided in this 
example, we would agree with the characterization of the situation. The 
Service has recently worked to ensure that all participants understand 
that during the effects analysis it is not appropriate to go back in 
time and set the baseline at the species condition prior to dam 
construction.

Page 42, first full paragraph: This paragraph provides a good 
description of the tensions that can exist in the section 7(a)(2) 
process. That is, while action agencies are free to utilize their 
professional judgment, they typically seek the Service's opinion 
through some form of consultation. Once consultation is entered into, 
if the agency's professional judgment is appropriately supported and 
documented, then the Service's job is relatively simple; however, such 
support and documentation often is not present. To some extent, this 
issue may be addressed through better communication between the Service 
and action agencies. To this end, the Services have been developing a 
training course to assist action agencies in the development of 
information needed to support section 7 consultation.

Page 43, first paragraph, last sentence: It appears that "Service" in 
this sentence is referring to the Forest Service. If so, we recommend 
that this be made clear.

NonFederal Parties' Concerns Section:

Page 44, last paragraph: Please see our comments regarding Page 4, last 
paragraph.

Pate 45, first paragraph: We believe that this paragraph highlights the 
advantages that can sometimes be achieved for the action agency from 
obtaining additional information.

Recommendations for Executive Action:

1. We recommend that the Secretary of the Interior and the 
Undersecretary of Commerce for Oceans and Atmosphere direct the 
Directors of the Fish and Wildlife Service and the National Marine 
Fisheries Service, in collaboration with the action agencies we 
reviewed (and others the Services may deem appropriate), to determine 
how best to capture the level of effort devoted to pre-consultation in 
their data systems and ensure that such information is gathered, 
maintained, and used to manage the process effectively.

Response: Concur. While discussions can be initiated with the action 
agencies regarding steps to take to implement this recommendation, we 
foresee considerable difficulty associated with tracking this time. For 
example, while pre-consultation may continue over many months or even 
years, only small portions of this time may be attributed to the ESA 
pre-consultation process. This may require tracking of individual hours 
or even portions of hours over long periods of time. In addition, much 
of the information used in ESA consultation is actually developed for 
other processes such as NEPA, FLPMA, etc. We foresee difficulty 
determining how to appropriately apportion the work among the action 
agencies various responsibilities.

Title of Responsible Official: Assistant Director, Endangered Species, 
Fish and Wildlife Service:

Target Date: January 2006.

2. We recommend that the Secretaries of the Interior and. Defense, the 
Undersecretary of Commerce for Oceans and Atmosphere, and the Director 
of the Forest Service, work together to resolve disagreements about 
when consultation is needed and how detailed an analysis is required 
given a proposed activitys likely effects on species or habitat. The 
Secretaries and the Director should ensure that their agreements are 
disseminated quickly to all staff involved in consultations as well as 
the public.

Response: Concur. We will work with the action agencies to come to 
agreement regarding when consultation is needed and the level of detail 
needed in analyses to support section 7 determinations. Once agreement 
is achieved, we will quickly distribute the results as appropriate.

Title of Responsible Official: Assistant Director, Endangered Species:

Target Date; March 2005:

3. We recommend that the Secretaries of the Interior and Defense, the 
Undersecretary of Commerce for Oceans and Atmosphere, and the Director 
of the Forest Service, work together to refine guidance, as needed, on 
the type and specificity of documentation required in a consultation.

Response: Concur. We will engage the action agencies in an effort to 
refine guidance regarding the type and specificity of documentation 
needed for their situations.

Title of Responsible Official: Assistant Director, Endangered Species:

Target Date: November 2005:

4. We recommend that the Secretaries of the Interior and Defense, the 
Undersecretary of Commerce for Oceans and Atmosphere, and the Director 
of the Forest Service, work together to evaluate the efficiency and 
effectiveness of improvements made to the consultation process, such as 
programmatics and streamlining, and use the evaluation results as a 
basis for future management actions.

Response: Concur. We will engage the above entities in an effort to 
determine how best to accomplish this task.

Title of Responsible Official: Assistant Director, Endangered Species:

Target Date; June 2005.

Bureau of Reclamation:

Overall, the report accurately describes the concerns and problems 
agencies are encountering with Endangered Species Act (ESA) Section 7 
consultations. However. there are several issues 
and several specific statements in the report regarding the ESA process 
that need to be clarified or corrected.

GENERAL COMMENTS:

GAO was asked to examine the consultation process-including process 
concerns and steps taken by Federal agencies to improve the process. 
The report generally focuses on steps taken to improve the conduct of 
the process (e.g., efficiency, timeliness, transparency). It is not 
clear from reading the report whether any Federal agencies are 
concerned with, or are taking steps to improve, the effectiveness of 
the process (i.e., attainment of fundamental, on-the-ground objectives 
for endangered species through Section 7 consultations). The report 
would be strengthened by speaking first to the observed effectiveness 
of the process, and second to process efficiency. [We suspect that GAO 
will find that there is even less data available to judge process 
effectiveness than is available to judge process efficiency. 
Nonetheless, it seems important for the report to establish whether or 
not the process is reasonably effective - even if inefficient - in 
achieving its underlying purpose. 1f it is reasonably effective, then 
the report's emphasis on efficiency is clearly justified. 1f the 
process is not reasonably effective, or if its effectiveness cannot be 
determined, then perhaps the report should reach conclusions and 
provide recommendations in both areas (effectiveness and conduct).]

For example, on page 4, First paragraph, last sentence, the report 
states that, "Given resource constraints, it is imperative that 
resources invested in process changes be justified by gains in process 
efficiency." We would suggest that process changes should be equally 
justifiable by gains in process effectiveness.

The report indicates in several places that GAO asked the Services 'for 
data regarding consultations completed and their timeliness. GAO found 
the Services' data to be insufficient (although improving). We believe 
the report would be strengthened by addressing the quality of similar 
data retained by the action agencies, particularly in light of the 
concerns expressed by action agencies. For example, on page 3, first 
paragraph, last sentence, the report states: "In addition, the Services 
cannot con inn or deny complaints about the lengthiness of the entire 
consultation process or know where the most significant problems arise" 
A reader might reasonably ask: can the action agencies support their 
complaints with complete and reliable data?

Similarly, on page 15, second full paragraph, first sentence. the 
report states that "Without information on the time spent in 
preconsultation, the Services cannot determine how long the entire 
consultation process really takes.." Would this same statement also 
apply to action agencies?

The report is inconsistent in its concept of informal consultation. It 
uses the terms 
"preconsultation" and "informal consultation" interchangeably to 
describe the process technically defined as informal consultation. We 
recommend not using the term "preconsultation" and instead use informal 
consultation" as defined in the regulations.

The report is also inconsistent in its use of Bureau of Reclamation and 
Reclamation. We recommend using the abbreviation "Reclamation" for 
Bureau of Reclamation used throughout the remainder of the report. This 
abbreviation should be included in the list of abbreviations following 
the table of contents.

SPECIFIC COMMENTS:

Page 1, second paragraph. fourth sentence. The report states 
that "Consultation usually ends with the Services' issuing their own 
assessments of the likely effects.."We suggest that "assessments" be 
changed to "opinion" as reflected in the regulations.

Page 4 first full paragraph, third sentence: We would suggest changing 
the wording from"...increases in the number of consultations.

Page 6, first full paragraph, second sentence: The report states: 
'informal consultation occurs when the agency has determined that an 
activity is unlikely to adversely affect listed species or critical 
habitat." We suggest the report clarify that informal consultation is a 
process that involves a series of steps and communications between the 
action agency and the Services to determine whether a Federal action 
will affect listed species or critical habitat. If the action agency 
determines that the action is unlikely to adversely affect listed 
species or critical habitat after completing a biological assessment 
(for major actions) or similar analysis (for non-major actions), and 
the Services concur, then the action agency may proceed with the 
activity without further consultation.

Page 9, figure 3: The map incorrectly places Helena. Montana, west of 
the continental divide. We believe Missoula, Montana, is the city that 
GAO is attempting to identify.

Page 10, Figure 3: We suggest changing the heading to"Workers Install 
Electronic Fish Barrier Fabric on Canal Diversion Structure":

Page 17, line on top of page: Insert "formal" before "consultation.":

Page 23, first paragraph: The report should note that Reclamation has 
also developed a central repository for biological assessments prepared 
by Reclamation staff to assist staff in preparing biological 
assessments.

Page 36, last paragraph second sentence: In referring to the Services 
consultation handbook, the report states that `.consultation should be 
conducted on activities with [negligible, discountable, or completely 
beneficial] effects in addition to those with clearly negative 
effects." This needs to be corrected. The handbook actually states the 
opposite. `No formal consultation is required if a finding can be made, 
with the Services concurrence, that all reasonably expected effects 
will be beneficial, negligible, or discountable:':

Page 41 second Paragraph, fifth sentence: Insert"operation and' after 
"dam." Sixth sentence, insert `operations and' before "maintenance." In 
this discussion, the document should note that 
Reclamation and the Services are in the process of working out their 
differences oil. how effects will be analyzed for ongoing operations 
and maintenance at existing facilities.

Page 44, second full paragraph, first sentence: Sentence states that 
applicants".must consider their effects to protected species." This 
needs to be narrowed down to reflect that applicants must have their 
effects addressed in agency Section 7 consultations. Suggest that the 
sentence be revised to state that applicants ',.must have the effects 
of their actions on protected species addressed within the Section 7 
consultation so that it addresses the agency's action to fund or 
authorize their proposed activity:':

Page 49, Recommendations for Executive Action: In tracking the 
consultation process, the report notes the Services' failure to 
document the causes for missed deadlines. We believe this is a major 
deficiency which needs to be corrected in order to improve the process. 
There may be trends that become apparent that could be readily 
remedied, We encourage GAO to include this in its recommendations.

The text of the report discusses, in general, disagreements with 
essentially all action agencies as to when consultation is needed and 
the level of detailed analysis required. Yet, the recommendations seem 
to only call for the Forest Service (as an action agency) and the 
regulatory agencies to resolve this problem. We suggest that these 
recommendations be expanded to indicate more clearly that action 
agencies such as the Reclamation and the Bureau of Land Management, 
within the Department of the Interior, are part of the process to 
address these recommendations,

The report also discusses certain needs with respect to improving 
agency training, however, none of the recommendations are addressing 
this issue. We believe training needs will become acute as new and 
inexperienced staff is hired to replace experienced staff that are 
moving on to new jobs or retiring. We suggest that GAO include a 
recommendation encouraging the Services and action agencies to join 
forces in developing cross-agency training to better understand the 
consultation process and how it relates to action agencies' programs, 
authorities, and decision processes.

Making the consultation process more transparent to outside interest 
groups and stakeholders is also a need that will continue to grow as 
consultations become more complex and affect stakeholders in more 
significant ways. Action agencies have begun to make draft biological 
assessments available to the public for certain actions as part of 
National Environmental Policy Act documents and have shared those 
public comments with the Services. This has its benefits and drawbacks. 
We suggest that the GAO include a recommendation that agencies study 
this issue and perhaps develop guidance on when this might be 
appropriate and how it should be conducted.

Bureau of Land Management:

GENERAL COMMENT:

We look forward to continuing to work with the U.S. Fish and Wildlife 
Service, National Oceanic and Atmospheric Administration Fisheries, and 
other action agencies to resolve disagreements, refine guidance, and 
evaluate improvements to the Section 7 consultation process.

SPECIFIC COMMENTS:

Page 4, second para gr In the sentence beginning"While staff levels 
have increased. "is a reference to "increases in the number of 
consultations." It should read". increases in the number and complexity 
of consultations":

Page 22: In the second paragraph, the last two sentences do not pertain 
to the BLM. The reference to "forest planS" appears to be generic; the 
BLM does not prepare forest plans. The BLMs land use plans are called 
Resource Management Plans and include compliance with the National 
Environmental Policy Act. Also, please add to the third paragraph that 
two to three times annually the BLM offers training on the Endangered 
Species Act to BLM and other agency personnel. 

The following are GAO's comments on the Department of the Interior's 
letter dated February 27, 2004.

GAO Comments:

We modified the report as appropriate based on the technical comments 
that the Department of the Interior provided us. In addition, detailed 
responses to some of Interior's other comments are provided below.

1. We identified the need to correct some of the data we presented in 
the draft report during the agency comment period and informed FWS of 
this; we have made the appropriate changes to the report.

2. We agree and have incorporated additional information on the 
benefits of the consultation process in the report.

3. We agree that there may be good reasons for some consultations not 
to be completed within established time frames. We recognized in our 
draft report that some consultations we identified as exceeding time 
frames may have had agreed-upon extensions, and we have incorporated 
additional information to provide some of the reasons for such 
extensions.

4. The draft report does not assert that preconsultation is or should 
be considered a part of the statutory consultation. We are recommending 
that the Department of the Interior and NOAA work with relevant action 
agencies to improve tracking of the level of effort spent in 
preconsultation because, as many of our interviews with agency 
officials and some of the agency comments received on the draft report 
indicate, the time spent in preconsultation is an important component 
of the consultation process and may reduce the length of time spent in 
formal and informal consultation (which the Services consider to have 
begun once they receive a complete biological assessment or similar 
document). We recognized in the draft report that preconsultation may 
include periods of time when neither the Services nor the action 
agencies are working on a proposed project and that, in some cases, 
information developed during this period may be used to support other 
environmental requirements and therefore cannot be attributed solely to 
the consultation process.

5. We agree that the effectiveness of the consultation process for 
species conservation is very important and discuss, in several places 
in the report, indicators and officials' opinions of its effectiveness; 
we also recommend that the departments, NOAA, and the Forest Service 
evaluate the effectiveness of any improvements made to the process. 
Officials with the Services told us that they believe that the low 
number of jeopardy opinions indicates that the process is effectively 
ensuring that federal activities are not jeopardizing listed species. 
In addition, officials with the Services and action agencies told us 
that the consultation process, especially time spent in 
preconsultation, has resulted in better projects that have fewer 
impacts on species or are influenced by the consultation process early 
enough so that any needed project modifications cost less than if done 
later in project development and have minimal or no impact on project 
implementation schedules. However, as later noted in the Department of 
the Interior's comments, there are few data available to evaluate the 
effectiveness of the consultation process overall. While we discussed 
Endangered Species Act section 7(a)(1) responsibilities with some 
officials, we did not evaluate whether agencies were using their 
authorities to carry out programs for the conservation of threatened 
and endangered species, as directed by this section of the act (such 
programs are in addition to the section 7(a)(2) requirement for federal 
agencies to consult on activities that may affect listed species or 
designated critical habitat). We are, therefore, not making a 
recommendation about the use of section 7(a)(1).

6. We agree and have incorporated additional information about 
consultations completed early in the report.

7. The point of whether section 7 of the act can be used to "leverage" 
species' recovery would benefit from an official position from the 
Services. As we reported, some action agency officials are concerned 
that the Services are taking consultations too far by requesting that 
agencies implement what the officials perceive are actions intended to 
recover species, not just avoid jeopardy or adverse modification of 
critical habitat.

8. The draft report recognized the difficulties of tracking the level 
of effort devoted to preconsultation. We are not prescribing a systems 
solution so that the departments, NOAA, and the Forest Service have 
flexibility in identifying a feasible option. Tracking level of effort 
does not necessarily mean precisely tracking the amount of time--down 
to the hour--spent on an individual consultation. One potential 
alternative is to have an information system from which biologists and 
agency staff could select various options to indicate whether they were 
spending a minimal amount of time on a consultation (with a definition 
of "minimal" provided such as less than 1 hour a week) or if their 
involvement was moderate or heavy. This information could then be used 
to track, in general terms, the level of effort devoted to proposed 
actions before formal or informal consultation is initiated; it could 
also be combined with the level of effort or time expended on the 
"official" consultation to determine the magnitude of the entire 
consultation process.

9. We believe the report does reflect interest and concerns from the 
Services and action agencies about the effectiveness of the 
consultation process. As we discussed in comment 5, some officials said 
that the consultation process is resulting in projects that have less 
effect on species and habitat. In addition, officials with the Services 
believe the process is working effectively to protect species because 
so few projects are found to jeopardize a listed species. Conversely, 
environmental advocates raised concerns about whether the process 
adequately protected species. However, as the Department of the 
Interior notes, there are few data available to comprehensively 
evaluate the effectiveness of the consultation process, although we 
recommend that the departments, NOAA, and the Forest Service evaluate 
the efficiency and effectiveness of any efforts to improve the process.

10. We asked the action agencies included in our review for their data 
on the consultation process. While some action agencies maintained some 
data related to consultations, the data did not always track 
consultation as a discrete activity and, therefore, were not useful for 
the purposes of our evaluation.

11. We recognize the distinction in the regulations regarding informal 
consultation, but in practice the Services do not consider informal 
consultation "initiated" until they receive a complete biological 
assessment or similar document. In our report, preconsultation is being 
used to describe all activities occurring before a formal or informal 
consultation is initiated by the Services.

12. We agree that information on the causes of missed time frames would 
be useful information and is something for the departments, NOAA, and 
the Forest Service to consider in identifying data management options 
for tracking the entire consultation process.

13. We believe training is included in our recommendations regarding 
clarifying disagreements and disseminating information quickly and 
refining guidance; how the departments, NOAA, and the Forest Service 
choose to disseminate such information and guidance could include 
providing additional training courses. In addition, several of the 
Services and action agencies reported that they were in the process of 
developing and/or refining consultation courses.

14. We agree that providing transparency of federal actions is an 
important element for maintaining the confidence of the public. 
However, as we discuss in the report, the Endangered Species Act does 
not provide for public involvement in the consultations process as it 
does for many other components of the act. Making draft biological 
opinions available to the public may be something that the departments, 
NOAA, and the Forest Service may want to consider studying.

[End of section]

Appendix III: Comments from the Department of the Army:

DEPARTMENT OF THE ARMY 
OFFICE OF THE ASSISTANT SECRETARY CIVIL WORKS 
108 ARMY PENTAGON 
WASHINGTON DC 20310-0108:

REPLY TO ATTENTION OF:

Mr. Barry T. Hill Director:

Natural Resources and Environment 
U.S. General Accounting Office:

441 G Street, N.W. 
Washington, D.C. 20548 -1000:

Dear Mr. Hill:

This letter provides the Department of Defense (DoD) response to the 
GAO draft report, "ENDANGERED SPECIES: Federal Agencies Have Worked to 
Improve the Consultation Process, but More Management Attention is 
Needed," dated January 20, 2004, (GAO CODE 360259/GAO-04-93).

The GAO report was prepared to assess the consultation processes for 
compliance with the Endangered Species Act. Federal agencies must 
consult with the U.S. Fish and Wildlife Service or the National Marine 
Fisheries Service to ensure that actions taken or permitted by those 
agencies do not jeopardize the continued existence of listed species or 
adversely modify their habitats. The report provides an examination of 
the processes and timeframes for these consultations. Army Civil Works 
comments on the report follow.

In general, the GAO report does a good job of identifying the multiple 
problems that contribute to delays and often to increased costs at 
Corps civil works and regulatory projects as the pre-consultations (and 
informal consultations) and formal consultations proceed. However, 
those problems are not sufficiently highlighted in the recommendations 
to provide adequate clarity for the affected resource agencies to 
develop policies or interagency agreements that might address ways of 
improving the consultation processes. We note that there are very 
limited data upon which the recommendations are based.

Therefore, we recommend that the first recommendation of the report on 
page 49 be restated to apply to the affected and resources agencies 
equally, including DoD. Moreover, we suggest replacing the word 
"collaboration" with the word "conjunction" in this recommendation to 
allow affected agencies to ensure that the data accurately reflect the 
length of the entire consultation process, including the early informal 
or pre-consultation stages. Quite frequently, the pre-consultation 
process results in the project proponents delaying their activities 
while amassing data and re-designing the proposed projects to avoid a 
potential jeopardy opinion. To highlight this point, page three of the 
report specifies that 
"more than one-third" of the 1,700 consultations exceeded the 
established time frames for consultation, while on page six the report 
identified only eight jeopardy opinions in all of fiscal year 2003. 
There is no correlation among the data; thus it is difficult to make 
accurate comparisons. However, the information presented may suggest 
that those delays account for a significant number of projects going 
through modifications and incurring additional costs in order to avoid 
a jeopardy opinion. Keeping more accurate data might assist in 
identifying those projects, the causes of delays and the modifications 
that occur in advance of initiation of formal consultation.

Furthermore, we generally concur with the next three recommendations on 
page 50 of the report, which are those stated on the attached formatted 
comment sheet. We do recommend some revisions, however. For example, 
the first recommendation on page 50 of the report can be clarified and 
made more specific. Separating this one recommendation into three 
separate but related recommendations would emphasize the importance of 
the need to have improved procedures that are developed jointly among 
the Services and the agencies that consult with the Services. This 
recommendation should be broken into three parts to highlight their 
importance as underscored in the report. The clear connection between 
the likely adverse impacts and the level of detailed analysis should be 
a central component of such procedural guidelines.

We also believe the term "work together" in this recommendation is 
vague and not actionable and should be replaced with the more specific 
requirement to develop procedures. We believe that a coordinated and 
collaborative process, developed jointly, for resolution is necessary 
to establish consistent procedures for identifying and resolving 
conflicts. Thus, we recommend substituting these three recommendations 
for the first recommendation on page three:

* Develop interagency procedures to resolve disagreements about when 
consultation is needed;

* Develop interagency procedures identifying data and analysis needs for 
typical projects so that the services might determine more readily the 
likely effects on species or habitat; and:

* Ensure that any procedures developed are disseminated to all staff and 
made available to the affected public.

We generally concur with the remaining two recommendations on page 50, 
but with a suggested modification to strengthen Recommendation 3. We 
base that suggestion on the need to demonstrate the effectiveness of 
the improvements and provide for measurement of progress.

With these proposed modifications as stated herein and on the attached 
comment sheet, changes we believe will strengthen the report, both Army 
Civil Works and the Army Corps of Engineers concur with your findings. 
We look forward to working with the Services and our partner agencies 
to improve the consultation process, to develop useful methods for 
tracking, and to identify the many contributions the entire process, 
both formal and informal, have made to preservation of threatened and 
endangered species and their critical habitats.

Very truly yours,

Signed by: 

John Paul Woodley, Jr. 
Assistant Secretary of the Army (Civil Works):

Enclosure:

GAO DRAFT REPORT - DATED JANUARY 20, 2004 GAO CODE 360259/GAO-04-93:

"ENDANGERED SPECIES: Federal Agencies Have Worked to Improve the 
Consultation Process, but More Management Attention is Needed":

DEPARTMENT OF DEFENSE COMMENTS TO THE RECOMMENDATIONS:

RECOMMENDATION 1: The GAO recommended that the Secretary of Defense 
work together with the Secretary of the Interior, the Undersecretary of 
Commerce for Oceans and Atmosphere, and the Director of the Forest 
Service to resolve disagreements about when consultation is needed and 
how detailed an analysis is required given a proposed activity's likely 
effects on species or habitat. The Secretary of Defense should ensure 
that their agreements are disseminated quickly to all staff involved in 
consultations as well as the public. (p. 50/GAO Draft Report):

DOD RESPONSE: We concur with your recommendation but, as stated in the 
letter, we believe that the recommendation should be clarified and 
reworded to emphasize the importance of this process, which is further 
highlighted in the body of the report. Therefore, we suggest that this 
recommendation be broken into three and that the term "work together' 
in this recommendation be replaced to ensure specificity and action. 
The three suggested replacements are:

1. Develop interagency procedures to resolve disagreements about when 
consultation is needed and for which kinds of actions;

2. Develop interagency procedures identifying data and analysis needs 
for typical projects so that the Services might determine likely 
effects on species or habitat more readily; and:

3. Ensure that any procedures developed are disseminated to all staff 
and made available to the affected public.

RECOMMENDATION 2: The GAO recommended that the Secretary of Defense 
work together with the Secretary of the Interior, the Undersecretary of 
Commerce for Oceans and Atmosphere, and the Director of the Forest 
Service to refine guidance, as needed, on the type and specificity of 
documentation required in a consultation. (p. 50/GAO Draft Report):

DOD RESPONSE: We concur with this recommendation.

RECOMMENDATION 3: The GAO recommended that the Secretary of Defense 
work together with the Secretary of the Interior, the Undersecretary of 
Commerce for Oceans and Atmosphere, and the Director of the Forest 
Service to evaluate the efficiency and effectiveness of improvements 
made to the consultation process, such as programmatics and 
streamlining, and use the evaluation results as a basis for future 
management actions. (p. 50/GAO Draft Report):

DOD RESPONSE: We concur with your findings with the following 
modification: "The affected and resource field agencies should report 
on their efficiency and effectiveness in making improvements to the 
consultation process." Ways to make improvements should not be 
constrained. However, demonstrating the effectiveness of the 
improvements should be reported so that the agencies can measure 
progress. 

The following are GAO's comments on the Department of the Army's letter 
dated February 19, 2004.

GAO Comment:

The Army generally concurred with our recommendations but suggested 
that we clarify and strengthen them. See our response to their 
suggestions in the "Agency Comments and Our Evaluation" section in this 
report.

[End of section]

Appendix IV: Comments from the National Oceanic and Atmospheric 
Administration:

UNITED STATES DEPARTMENT OF COMMERCE 
The Under Secretary of Commerce for Oceans and Atmosphere 
Washington, D.C. 20230:

FEB 26, 2004:

Mr. Barry T. Hill:

Director, Natural Resources and Environment:

United States General Accounting Office 
Washington, D.C. 20548:

Dear Mr. Hill:

Thank you for the opportunity to review and comment on the General 
Accounting Office's draft report entitled, "Endangered Species: Federal 
Agencies Have Worked to Improve the Consultation Process, but More 
Management Attention is Needed." GAO-04-93. Enclosed are the National 
Oceanic and Atmospheric Administration's comments on the draft report.

These comments were prepared in accordance with the Office of 
Management and Budget Circular A-50.

Sincerely,

Conrad C. Lautenbacher, Jr. 
Vice Admiral, U.S. Navy (Ret.) 
Under Secretary of Commerce for Oceans and Atmosphere:

Enclosure:

NOAA Comments on the Draft GAO Report Entitled:

"Endangered Species: Federal Agencies Have Worked to Improve the 
Consultation Process, but More Management Attention is Needed" (GAO-04-
93/February 2004):

General Comments:

NOAA Fisheries recognizes and appreciates concerns over delays in 
consultations and resultant effects on action agencies and the public. 
NOAA Fisheries implemented a web-based "Public Consultation Tracking 
System" (PCTS) in FY 2001 to allow NOAA Fisheries, action agencies, and 
the affected public to easily review and track the status of all ESA 
consultations conducted by the Northwest Region of NOAA Fisheries in 
Washington, Oregon, and Idaho. PCTS was expanded to a national system 
in FY 2003 and continued enhancements are underway. The impetus for 
developing the PCTS was to have a system that could be used to track 
and manage consultations by management in NOAA Fisheries, the action 
agencies, and the affected public. For example, applicants for Army 
Corps of Engineers permits can enter their permit number into PCTS and 
view when their consultation request was submitted by the action 
agency, whether it was complete or not, when consultation was 
initiated, and the expected time for completion. We are pleased that 
GAO was also able to use PCTS to directly access our consultation 
information for this report.

NOAA Fisheries has made significant progress with the action agencies 
in expediting and streamlining the consultation process especially for 
routine Federal actions. This has been accomplished through 
streamlining agreements and by working with the action agencies to use 
programmatic consultation approaches to batch and bundle similar 
actions, and to use watershed-scale consultations as much as possible 
to take advantage of economies of scale. For the most part, routine 
actions which pose little serious effect on ESA listed species or their 
habitat do not require significant staff time to process. While NOAA 
has effectively managed its workload for these actions, it is beginning 
to experience an increase in the number of more complex actions that 
require increased technical sophistication and in some instances the 
involvement by contractors and scientists. Some of these include large 
water storage projects, water quality standards consultations, and 
point discharges. Consultation on these actions needs to be carefully 
completed to reduce adverse effects on threatened and endangered 
species and to withstand external scrutiny.

NOAA Fisheries has developed a "Consultation Initiation Template" (CIT) 
to assist the action agencies in their preparation of more complete 
biological assessments that should assist in further expediting the 
consultation process. The initial "pilot version" of the CIT is 
available on the NOAA Fisheries Northwest Region website, and was 
provided to GAO during their visit. The CIT provides a structured 
format for inputting the core requirements of biological assessments 
and should eliminate some of the concerns raised about communication 
between agencies on the content and adequacy of biological assessments.

Specific Comments:

Page 6, paragraph 2, second sentence: Please modify the sentence to 
read "Informal consultation occurs when an agency determines its action 
may affect, but is not likely to adversely affect listed species or 
critical habitat.":

Page 7: We recommend providing a matrix or other graphic to display 
which action agencies are responsible for which species.

Page 15, second full paragraph: The report does not include mention 
that the PCTS does in fact track time spent in preconsultation. NOAA 
Fisheries added preconsultation to the PCTS system in May 2002 in 
recognition of this being an important component of the consultation 
process.

NOAA Response to GAO Recommendations:

Recommendation 1: The GAO report states: "We recommend that the 
Secretary of the Interior and the Undersecretary of Commerce for Oceans 
and Atmosphere direct the Directors of the Fish and Wildlife Service 
and the National Marine Fisheries Service, in collaboration with the 
action agencies we reviewed (and others the Services deem appropriate), 
to determine how best to capture the level of effort devoted to 
preconsultation in their data systems and ensure that such information 
is gathered, maintained, and used to manage the process effectively.":

NOAA Response: NOAA agrees with this recommendation and did modify PCTS 
in May 2002 to capture these data. The PCTS does track initiation of 
preconsultation activities and does link it to the subsequent 
consultation initiation. It will be difficult, as GAO noted on page 16, 
to apportion a specific amount of the preconsultation time frame solely 
to ESA requirements because much information generated during 
preconsultation is applicable to processes other than consultation, 
such as NEPA.	Nonetheless, we are using PCTS to better track 
preconsultation efforts.

Regarding preconsultation, early involvement by the Services does not 
necessarily add more process time to the overall ESA consultation. In 
many instances very early staff-to-staff coordination reduces effects 
from projects on ESA-listed species and designate critical habitat 
before the section 7 consultation is initiated. NOAA is aware of many 
examples where "likely to adversely affect" actions would have 
triggered the more complicated and time consuming formal consultation 
process but because of staff-to-staff preconsultation, effects were 
lessened to the "not likely to adversely affect" level which triggered 
the less complicated informal consultation process. As noted in the 
report, preconsultation can increase time spent on early project-level 
coordination; however, NOAA has found that preconsultation activities 
enable the preparation of concurrence letters instead of more time 
consuming biological opinions. The U.S. Forest Service 
for February and March 2004, and the agencies are scheduled to address 
common execution problems in the preconsultation and consultation 
processes.

One additional issue not addressed in the GAO report that can have 
significant effects on preconsultation and consultation time lines is 
teasing out the extent of Federal discretion action agencies have over 
projects they authorize, fund, or permit. For many actions authorized 
by Federal agencies, it is difficult to detern-iine how much discretion 
action agencies have to modify the action and evaluate effects. In some 
cases, agency policy has been inconsistent and court cases conflict 
between states. For example, the Forest Service found it necessary to 
elevate a question regarding its own agency's discretion to condition 
access to private inhoidings.	Similarly, where there is not clear 
discretion regarding the land management agency authorities to 
condition special use permits for activities, such as mining and/or 
water diversions, the consultation process can be significantly bogged 
down. NOAA believes that unresolved issues regarding whether or not 
action agencies have discretion remain an important challenge for the 
agencies to resolve. In the absence of resolution of these issues, 
consultation affected by such uncertainty should be duly noted in the 
system such that they do not unnecessarily lengthen the preconsultation 
and consultation time lines.

Recommendation 2: The GAO states: "We recommend that the Secretaries of 
the Interior and Defense, the Undersecretary of Commerce for Oceans and 
Atmosphere, and the Director of the Forest Service, work together to:

[1] Resolve disagreements about when consultation is needed and how 
detailed an analysis is required given a proposed activity's likely 
effects on species or habitat. The Secretaries and the Director should 
ensure that their agreements are disseminated quickly to all staff 
involved in consultations as well as the public. [2] Refine guidance, 
as needed, on the type and specificity of documentation required in a 
consultation.

[3] Evaluate the efficiency and effectiveness of improvements made to 
the consultation process, such as programmatics and streamlining, and 
use the evaluation results as a basis for future management actions.

NOAA Response: Recommendation 2.1. NOAA agrees with this 
recommendation. NOAA's preconsultation experience with the USFS and BLM 
has been in place for many years and the agencies have gained 
significant benefits.	The agencies have signed agreements and 
established a hierarchical dispute resolution process designed to 
prevent unresolved ESA issues from languishing during preconsultation. 
The dispute resolution process has been used several times and 
effectively resolved disagreements. Although experiences vary across 
the states, some locations like the Pacific Northwest have been able to 
pursue time saving programmatic consultation innovations for routine 
actions with predictable effects and obviate the need for site specific 
consultations. In this area, NOAA has been the lead in exporting 
dispute resolution processes and other successful tools to other action 
agencies less familiar with the section 7 process.

Recommendation 2.2:

NOAA agrees with this recommendation. In 2003, NOAA developed and 
deployed a pilot "Consultation Initiation Template" (CIT) an on-line 
consultation initiation template and user guide to assist action 
agencies in the development of biological assessments and biological 
evaluations (BA/BEs). NOAA developed this standardized template to 
encourage consistency in format and content of BA/BEs and to reduce 
potential for delays in the consultation process experienced previously 
associated with requests for additional information.

The template also contains a completion checklist that action agencies 
and NOAA can use to ensure that all necessary information has been 
provided. When NOAA determines that a BA/BE is complete it, would 
notify the action agency that it has initiated consultation. The CIT 
will be linked directly to the PCTS so each step of the consultation 
process, including receipt of a completed BABE, are automatically 
tracked by PCTS.

The CIT is designed to elicit the type of information necessary at the 
appropriate level of detail, highlighting information NOAA has often 
found missing in BA/BEs. When information is missing, consultation 
delays often occur. We are hopeful this tool, when completed, will 
enable NOAA and the action agencies to have a common set of instruction 
and ESA application to avoid or reduce ambiguity over information needs 
and resolve questions over whether consultation has been initiated. 
NOAA believes the consultation initiation template, user guide, and 
check list, when completed, will reduce disagreements regarding how 
much information is needed and whether consultation has been initiated.

Recommendation 2.3:

NOAA agrees with this recommendation. NOAA Fisheries will continue to 
work with the action agencies to explore the effectiveness and 
efficiency of the consultation process. In addition, we look forward to 
continued cooperation with the action agencies to explore opportunities 
to utilize programmatic consultations where possible. Along with the 
USFS, BLM, and FWS, NOAA Fisheries is conducting a review of all 
programmatic consultations issued to the USFS and BLM in Oregon, 
Washington, and Idaho. The purpose of the review is to determine what 
actions are currently included in programmatic consultations and 
whether any existing programmatic consultations should be expanded or 
new programmatic consultations created. As a result of GAO's report, 
NOAA will advise cooperating action agencies of this recommendation and 
determine how best to measure the effectiveness of programmatic 
consultation as an improvement tool in the consultation process.

The following are GAO's comments on the National Oceanic and 
Atmospheric Administration's letter dated February 26, 2004.

GAO Comments:

We modified the report as appropriate based on the technical comments 
that NOAA provided us. In addition, detailed responses to some of 
NOAA's other comments are provided below.

1. We recognize that PCTS tracks preconsultation activities, but it 
does not track the level of effort devoted to preconsultation, which is 
the intent of our recommendation. However, PCTS may be a good starting 
point for identifying possible data management solutions.

2. We recognize the potential benefits of preconsultation, and have 
incorporated additional information on these benefits in the report.

3. We recognize the difficulties of determining federal discretion in 
some cases, and have incorporated information on this issue in the 
report.

4. We recognize that many of the agencies have guidance and 
information-sharing mechanisms in place or under development. Given the 
disagreements that still exist about the process between the Services 
and action agencies, we intend our recommendation to ensure that the 
departments, NOAA, and the Forest Service coordinate these efforts to 
ensure consistency in interpretations and guidance provided, and, 
ideally, to maximize scarce resources by sharing and leveraging each 
others' progress.

[End of section]

Appendix V: Comments from the Forest Service:

United States Department of Agriculture
Forest Service
Washington Office 
14tH & Independence SW P.O. Box 96090 
Washington, DC 20090-6090:

File Code: 2670:

Date: FEB 27 2004:

Mr. Barry T. Hill:

Director Natural Resources and the Environment: 
U.S. General Accounting Office:
441 G Street N.W. Washington, DC 20548:

Dear Mr. Hill:

Thank you for the opportunity to review and comment on the draft 
General Accounting Office (GAO) Report, "Endangered Species: Federal 
Agencies Have Worked to Improve the Consultation Process, but More 
Management Attention is Needed," GAO-04-93. This draft is more thorough 
and comprehensive than the first draft we reviewed. The Forest Service 
generally agrees with the report's content and its recommendations. The 
report accurately describes many of the topics associated with 
interagency cooperation under the consultation process - with both the 
process itself and with agency use and implementation of the process.

In general, the report should more effectively acknowledge the 
following points: (1) the multiple "benefits" often gained from the 
Section 7 consultation rather than just focusing on the costs, (2) 
there are many factors involved in evaluating the efficiency and 
effectiveness of Section 7 consultation in addition to timeliness, (3) 
Section 7 implementing regulations of the Endangered Species Act 
provide for mutually agreed-to extensions, and (4) timely consultations 
are dependent on the adequacy of information provided to the Fish and 
Wildlife Service or National Marine Fisheries Service. Additional 
comments, that may improve the overall scope of the report, are 
enclosed.

If you have additional questions or concerns, please contact the Forest 
Service Agency Audit Liaison, Sandy Coleman, at (703) 605-4940.

Sincerely,

Signed for: 

DALE N. BOSWORTH 
Chief:

cc: pdl wo nfs wfw directors team, Sandy T Coleman:

Enclosure:

USDA Forest Service Comments on the U.S. General Accounting Office 
Draft Report GAO-04-93 "Endangered Species: Federal Agencies Have 
Worked to Improve the Consultation Process, but More Management 
Attention is Needed":

Forest Service Comments:

The report in general:

The report would be more effective if it acknowledged the "benefits" 
that are often derived from Section 7 Consultation rather than simply 
stressing the "costs" involved in doing consultation. Many Agency 
projects have been better formulated and implemented, to achieve 
multiple resource and management objectives, due to early and frequent 
consultation with the U.S. Fish and Wildlife Service (USFWS) and the 
Department of Commerce National Marine Fisheries Service (NMFS). While 
significant time may be expended in Section 7 Consultation, if the 
consultation process results in projects that are done in a manner that 
better maintains the integrity of the ecosystems of concern, it may 
provide added flexibility for the Forest Service to implement its 
future activities. Relatively minor investments in consultation can 
result in benefits that compound over time, as future actions that 
could otherwise be problematic, are implemented faster due to 
comprehensive consultation.

Similarly, the report seems to suggest that the only important factor 
in evaluating the efficiency and effectiveness of Section 7 
Consultation is its timeliness. Although the agencies strive to 
complete all consultations within established timeframes, there are 
often instances when doing so is not the highest priority of the action 
agency, the applicant, or listed species being affected by the proposed 
action. The Forest Service recommends that the report place greater 
emphasis on the fact that there may be a number of valid reasons for a 
consultation to exceed established timeframes. Delays sometimes occur 
at the request of the Forest Service. In the past such reasons have 
included: higher priority newer regulatory agency staffing limitations, 
emergency consultation priorities, and National Environmental Policy 
Act (NEPA) and National Forest Management Act (NFMA) analyses delays/
timeframes.

The report should also acknowledge that: (1) the implementing 
regulations for Section 7 of the Endangered Species Act (ESA) provide 
for mutually agreed-to extensions when additional data would provide 
the necessary information base from which to formulate a biological 
opinion; and (2) timely consultations are dependent on the adequacy of 
information provided to the FWS or NMFS and staff resources they can 
provide. An important factor for the Forest Service is to ensure 
projects are prepared, approved, and implemented in a manner that 
minimizes the likelihood of being legally challenged due to inadequate 
consultation with the FWS or NMFS.

Throughout the report, references are made to "pre-consultation" and 
attempts are made to bundle these activities into the timeframes 
measuring consultation while pointing out that the agencies do not have 
an effective mechanism to measure this time. It should be noted that 
the pre-consultation period generally precedes finalization of the 
proposed action and represents the period in which the action is 
formulated and possibly modified, based on technical assistance from 
the FWS or NMFS. On that basis, it is premature to include this period 
as part of the statutory consultation process, since the Federal action 
agency has not completely defined its action, which ultimately may not 
even require consultation.

In addition, it is important to recognize that, during the pre-
consultation period, action agencies typically develop information that 
is applicable for processes other than ESA Section 7 Consultation 
(e.g., doing NEPA environmental analysis, doing NMFA viability 
evaluations, etc.). Even if it were determined to be useful to track 
such information, it is not typically appropriate to attribute this 
entire time period solely to the Section 7 pre-consultation process. 
During the pre-consultation process, work to develop and evaluate 
proposed actions may be sporadic, that is, periods of weeks, months, or 
longer may pass without significant work being completed on a proposed 
action. When consultation is needed, we encourage agency personnel to 
"consult early and consult often". This has paid off in developing and 
implementing better projects. We do not even attempt to track resources 
(staff, time, money) used only for consultation, because this activity 
serves so many other key purposes in land and resource management 
mission, is very difficult to attribute to one purpose alone, and 
because it would remove resources from actually doing the T&E species 
effects analyses that comprise consultation. For these reasons, we do 
not believe that the report accurately portrays the value and 
contribution of the pre-consultation process.

Comments regarding the GAO Recommendations for Executive Action:

Regarding the recommendations, the report focuses on the timeliness of 
the consultation as a measure of the efficiency of the Section 7 
Consultation process. However, timeliness is not necessarily the only 
or the best measure of effectiveness and efficiency. The effectiveness 
of the results of consultation is ensuring that Federal activities are 
implemented within the context of species and ecosystem conservation. 
The Forest Service has many examples of designing activities with this 
context in mind and the timeliness of consultations also is improved. 
The Agency recommends that the report contain a recommendation for all 
agencies to make better use of Section 7(a)(1) of the ESA consultation 
process to improve both the efficiency and the effectiveness of the 
7(a)(2) part. Other comments regarding the recommendations are as 
follows: 

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

Forest Service Response: We concur with such a recommendation. However, 
while we and the other agencies determine what can be done to implement 
such a recommendation, we foresee considerable difficulty and cost 
associated with identifying and tracking such levels of effort. For 
example, while pre-consultation may continue over many months or even 
years, only small portions of this time may be attributed to the ESA 
pre-consultation process. This may require identifying and tracking of 
individual hours or even portions of hours over long periods of time. 
In addition, much of the information used in ESA consultation is 
actually developed for other processes such as NEPA, NFMA, etc. We 
foresee difficulty determining how to appropriately separate, identify 
and apportion "consultation" work relative to our other 
responsibilities, and also difficulty in adequately determining the 
potential benefits of doing this.

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

Forest Service Response: We do not concur with such a recommendation. 
Regulations contained at 50 CFR 402 specify when consultation is 
needed. If there is disagreement regarding the application of these 
regulations within the context of specific actions, resolution should 
be based on the specific facts of the situation before the agencies. In 
addition, how "detailed" an analysis is required depends on the 
numerous unique components of three general factors: the proposed 
action, the site characteristics, and the species involved. It does not 
necessarily vary according to "a proposed activity's likely effects on 
the species or habitat". This is, in fact, one of the purposes of doing 
consultation. Regardless of the likely effects, sufficient detail needs 
to be provided to support the determinations made. We believe that the 
intent of the second portion of this recommendation can be addressed in 
Recommendation 3 below.

GAO Recommendation: Refine guidance, as needed, on the type and 
specificity of documentation required in a consultation.

Forest Service Response: We concur with this recommendation. Refining 
such guidance would improve use and implementation of the Section 7 
consultation process. However, we foresee difficulty achieving 
consensus regarding specific guidance, given the uniqueness of each 
consultation situation (see comments above).

Specific comments by page:

Page 1, first paragraph, second sentence: For some proposed actions, 
some adverse effects to species are fully acceptable, as long as the 
action does not jeopardize the species. In fact, this commonly occurs. 
This should be reworded.

Page 1, first paragraph, last sentence: This gives an incomplete 
summary of the purpose and objectives of the consultation process. It 
also does not adequately highlight the importance of using the process 
to develop and implement proactive agency actions whether or not they 
directly advance T&E species recovery. We suggest the more 
comprehensive and better wording given on the bottom of page 5 and top 
of page 6 be incorporated into this paragraph.

Page 4, second paragraph: The two key issues are correct. Staffing by 
FWS and NMFS has been a very significant concern to us. While 
significant improvements have been made by the FWS and NMFS (in 
addition to separate staffing increases to do National Fire Plan 
consultation), there remain instances where insufficient staff is 
available to do timely consultations. Disagreements about the extent to 
which consultation is necessary also occur, but this is inherent in, 
and at the heart of using, the consultation process tool - doing the 
effects analyses for a given action, on a given site, and (potentially) 
involving a given T&E species. Each situation is different.

Page 6, last paragraph: It should be recognized that to a great extent 
the rareness of any jeopardy opinions can be attributed to the 
collaborative work accomplished during pre-consultation.

Page 10, first sentence in top paragraph: Change to read: Similarly, 
Forest Service projects can range from trail maintenance, to timber 
harvesting and construction, and decommissioning of roads.

Page 12, last paragraph: Often delays in completion of informal 
consultations result from mutual agreements between the agencies. Such 
agreements are typically related to the action agency's work schedule. 
For example, the Forest Service may request that the FWS delay 
completion of informal consultation on a group of actions that they do 
not anticipate being able to implement for several months due to the 
availability of appropriate staff in favor of completion of 
consultation on other projects that they anticipate being able to 
implement fairly soon. While it is true that the FWS and NMFS databases 
often do not track such information, and perhaps these databases should 
track this information, it should be pointed out that at least a 
portion of these delays are the result of mutual agreement. While this 
information is presented a couple of pages later, by having it 
separated from the subject paragraph, the relevance of this point is 
lost.

Page 15, Available Data subsection: Please see our earlier comments 
regarding the amount and type of work that occurs during the pre-
consultation period and the appropriateness of attributing this time 
delay to the ESA. While much of this information is presented in the 
last paragraph of this subsection, it would be more effective if this 
information were better integrated into the first paragraph of this 
subsection.

Page 19, Figure 6 (Diamond-shaped box): The question, listed in this 
box, is not appropriate. A more appropriate question would be, "Has the 
action agency provided sufficient information to fulfill the initiation 
requirements of 50 CFR 402.14(c)?":

Page 21, last paragraph: The specific programmatic consultation 
processes described in this paragraph are influenced not only by the 
statute and consultation regulations, but also by a series of district 
and ninth circuit court rulings regarding the adequacy of project-
specific review and consultation, and the specificity of information 
available involved in the consultation.

Page 26, last paragraph: We have found that by engaging with the FWS or 
NMFS early during either pre-consultation or Section 7(a)(1) program 
reviews, we often develop a better understanding of the species' 
conservation needs and how our actions may affect them. This commonly 
leads to project designs that better incorporate species conservation 
and meeting project objectives.

Pages 26 - 30: The graphs on these pages present a lot of information 
that is not discussed. While the report discusses consultations that 
exceed established timeframes, these graphs present data showing that 
many of the consultations are conducted well ahead of established 
timeframes. To present a fair and accurate picture that may better 
assist in improving the Section 7 Consultation process or how agencies 
use the Section 7 Consultation process, the same consideration should 
be given to consultations completed early as to consultations completed 
late.

Page 31: Reducing the total time spent in Section 7 Consultation is not 
the only goal of "streamlining." Other goals are to formulate better 
projects and to ensure better effects analysis so that consultations 
are completed when they are ready to implement their actions. Thus, if 
the total amount of time spent completing consultation has not been 
shortened, but if by engaging in pre-consultation the work is completed 
earlier, i.e., by the time we are ready to implement our action, we 
typically consider this to be a success.

Page 32, first full paragraph, last two sentences: We agree with the 
assessment of vulnerability presented here and it is consistent with 
the guidance received from the Department of Justice. For this reason, 
we recommend that all programmatic consultations include provisions for 
site-specific (or project-specific) analysis. This provides useful 
check that effects are not different that previously identified and 
documented, and also helps ensure that actions covered by programmatic 
consultations 
are not vulnerable to successful legal challenge. The report should 
note that programmatic consultations can be structured to reduce or 
eliminate this vulnerability.

Page 33, top paragraph, first full sentence: The FWS and NMFS do not 
have the authority to "require" consultation. Action agencies determine 
for themselves when consultation is "really necessary." This sentence 
would be more appropriate if "recommend consultation" replaced "require 
consultation.":

Page 36, last paragraph, second sentence: This sentence misrepresents 
the consultation handbook - "negligible" is not used. Note that 
informal consultation (not "consultation") is the process used to 
conduct and complete consultation when identified effects are 
discountable, insignificant, or completely beneficial.

Page 38, first sentence: In the Pacific Coast Federation of Fisherman's 
Association v. National Marine Fisheries Service court ruling cited in 
footnote 15 of the report, the Court found that the FWS and NMFS must 
evaluate "negative short-term effects." We recommend the final report 
clearly convey that all discretionary Federal actions that are likely 
to adversely affect (in the short or long-term) listed species or 
critical habitat must comply with Section 7(a)(2) of the Endangered 
Species Act through the formal consultation process. When completing 
their biological opinion, the FWS or NMFS also considers the long-term 
benefits of the action; however, one must recognize and identify 
whether and the extent to which it may be important to ensure that 
individuals of the species survive the short-term negative effects and 
persists within the action area so they will be present to reap the 
long-term benefits of the proposed action. In addition, without access 
to range-wide information regarding the status of the species, it may 
not be possible to accurately evaluate the short-term negative effects. 
This further points to the distinctions between the roles of the action 
agencies and the FWS and NMFS in the consultation process. Finally, the 
Forest Service also recommend that the report acknowledge that many 
actions with long-term benefits to listed species result in short-term 
adverse effects that involve fully acceptable incidental take of these 
species, which is authorized through the formal consultation process.

Page 41, first paragraph, last sentence: The Forest Service strongly 
encourages this approach as it appears to meet the intent of the 
statute, which contains the title of "Interagency Cooperation" for 
Section 7.

Page 43, first paragraph, last sentence: The word "Service" should be 
"Forest Service.":

Page 46: The same "average $10,000 costs" for a permit at Lake 
Washington is cited three times in the report and two times in this 
same section (pg. 42).

Page 50: The Director of the Forest Service should be changed to Chief 
of Forest Service or to a Department Level recipient comparable to the 
others receiving the review.

The following are GAO's comments on the Forest Service's letter dated 
February 27, 2004.

GAO Comments:

We modified the report based on the technical comments that the Forest 
Service provided us, as appropriate. In addition, discussed below are 
GAO's corresponding detailed responses to some of Forest Service's 
other comments.

1. As we noted in comment 2 in our response to the Department of the 
Interior, we agree and have incorporated additional information on the 
benefits of the consultation process in the report.

2. As we noted in comment 3 in our response to the Department of the 
Interior, we have incorporated additional information about the reasons 
for extensions to time frames for the consultation process.

3. We agree that the timeliness of the entire consultation process will 
be affected by the adequacy of the information provided to the 
Services. However, given that the Services initiate formal or informal 
consultation only when they have a complete biological assessment or 
similar document, the additional time to provide adequate information 
would be considered a part of preconsultation and not subject to the 
established time frames for formal or informal consultations.

4. As we noted in comment 4 in our response to the Department of the 
Interior, the report does not assert that preconsultation should be 
considered a part of the statutory consultation.

5. As we noted in comment 2 in our response to NOAA, we have 
incorporated information on the value of preconsultation in the report.

6. As discussed in comment 5 in our response to the Department of the 
Interior, we agree that the effectiveness of the consultation process 
for species conservation is very important; however, we did not 
evaluate whether agencies were using their authorities to carry out 
programs for the conservation of threatened and endangered species, as 
directed by section 7(a)(1) of the Endangered Species Act.

7. As we noted in comment 8 in our response to the Department of the 
Interior, we recognize the difficulties of tracking the level of effort 
devoted to preconsultation and are providing the agencies flexibility 
in identifying a feasible option to do so.

8. We believe the recommendation is still needed to resolve 
disagreements about when consultation is needed. Based on our survey 
and interviews, disagreements about when consultation is necessary was 
one of the more significant concerns identified. Hence, the Services 
and the action agencies should identify and resolve the most persistent 
disagreements in this regard and disseminate clarification quickly to 
avert further disagreements. If the Services and action agencies cannot 
resolve their differences, then Congressional direction may be 
necessary. The Services and action agencies should be addressing such 
disagreements continuously as they arise given the new and unique 
situations that constantly present themselves.

9. As we noted in comment 6 in our response to the Department of the 
Interior, we have incorporated additional information about 
consultations completed early in the report.

[End of section]

Appendix VI: GAO Contact and Staff Acknowledgments:

GAO Contact: 

Trish McClure (202) 512-6318:

Staff Acknowledgments:

In addition to the individual named above, Bob Crystal, Jennifer 
Duncan, Doreen Stolzenberg Feldman, Jaelith Hall-Rivera, Barbara 
Johnson, Cynthia Norris, Tony Padilla, Judy Pagano, Jeff Rueckhaus, and 
Pamela Tumler made key contributions to this report.

(360259):

FOOTNOTES

[1] Results from nonprobability samples cannot be used to make 
inferences about a population because, in a nonprobability sample, some 
elements of the population being studied have no chance or an unknown 
chance of being selected as part of the sample. 

[2] Anadromous species live part of their lives in freshwater and part 
in saltwater.

[3] If a federal agency determines that a proposed activity will have 
no effect on listed species (e.g., if no listed species or critical 
habitat exist in the area), then consultation is not required.

[4] The Services may also request formal consultation if they disagree 
with an action agency's determination that an activity is not likely to 
adversely affect listed species.

[5] Required actions are intended to mitigate the activity's impact by 
minimizing the extent of incidental take. 

[6] The 135-day limit results from the combination of two time limits-
-the Endangered Species Act requires consultations to be completed 
within 90 days, and the implementing regulations require biological 
opinions to be delivered within 45 days after consultation has been 
completed. 16 U.S.C.  1536(b)(1)(A) and 50 C.F.R.  402.14(e), 
respectively. Since, in practice, preparation of the biological opinion 
is considered part of the consultation process, we will be referring to 
the 135 days as the time for completing the consultation process. 

[7] FWS manages land in national wildlife refuges and, like other land-
managing agencies, must consult with its own biologists--and with NMFS 
biologists, if appropriate--in determining the effect of its management 
activities on listed species. Similarly, when NMFS' activities might 
affect a listed species, NMFS must consult with its own biologists (and 
with FWS biologists, if appropriate) about the activities' likely 
effects. 

[8] Many other federal agencies may need to consult on effects to 
species. The agencies include the Departments of Defense, Energy, and 
Transportation, and the Environmental Protection Agency and the Federal 
Energy Regulatory Commission.

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

[10] NMFS has no offices in Montana.

[11] Because the NMFS database was implemented in January 2001, we did 
not obtain data for the first quarter of fiscal year 2001.

[12] FWS' Portland field office has maintained electronic data needed 
to measure timeliness since 1996.

[13] U.S. General Accounting Office, Fish And Wildlife Service: 
Challenges to Managing the Carlsbad, California, Field Office's 
Endangered Species Workload, GAO-01-203 (Washington, D.C.: Jan. 31, 
2001).

[14] As discussed earlier, a complete assessment is one that contains 
information sufficient to enable the Services to determine how the 
proposed activity is likely to affect listed species. 

[15] See, e.g., Pacific Coast Fed'n of Fishermen's Assn's, Inc. v. 
National Marine Fisheries Service, 265 F.3d 1028 (9TH Cir. 2001), which 
held that in reaching a "no jeopardy" finding at a regional watershed 
level, NMFS acted improperly by failing to aggregate the effects of 
individual projects (at small sites in the watershed) on the entire 
watershed. 

[16] This includes the nine NMFS offices in Idaho, Oregon, and 
Washington that conduct consultations with the agencies we evaluated; 
NMFS does not have offices in Montana. 

[17] Other FWS field offices did not provide estimates. 

[18] 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). 

[19] Montana is in a different FWS region than Idaho, Oregon, and 
Washington. 

[20] These data are for Corps consultations and staff in Idaho, Oregon, 
and Washington; the Corps' consultation workload in Montana is 
negligible. 

[21] See Pacific Coast Fed'n of Fishermen's Assn's, Inc. v. National 
Marine Fisheries Service, 265 F.3d 1028, 1037 (9TH Cir. 2001). 

[22] The NMFS data, however, exclude the first quarter of fiscal year 
2001 because the NMFS regional database was implemented in January 
2001.

[23] In March 2003, FWS implemented a three-state database for Idaho, 
Oregon, and Washington, but we did not use it because it contained data 
for only the second half of fiscal year 2003.

[24] Results from nonprobability samples cannot be used to make 
inferences about a population. This is because, in a nonprobability 
sample, some elements of the population being studied have no chance or 
an unknown chance of being selected as part of the sample.

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