Endangered Species:

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

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

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

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

Recommendations for Executive Action

  1. Status: Closed - Not Implemented

    Comments: The Department of Commerce's National Marine Fisheries Service (NMFS) and the Department of Interior's Fish and Wildlife Service (FWS) have determined that is difficult to capture the level of effort in preconsultation, the sometimes lengthy discussions that occur before formal consultation with agencies. NMFS officials stated that it is difficult to discern how much work during preconsultation should be attributed to the Endangered Species Act because preconsultation often includes discussion of other subjects, such as compliance with other federal, state, and local requirements. NMFS officials also stated that determining the level of effort was not a priority, given limited resources. FWS officials has similar concerns, although the agency has recently formed an oversight committee for its consultation tracking system and will consider preconsultation activities.

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

    Agency Affected: Department of Commerce

  2. Status: Closed - Not Implemented

    Comments: The Department of Commerce's National Marine Fisheries Service (NMFS) and the Department of Interior's Fish and Wildlife Service (FWS) have determined that is difficult to capture the level of effort in preconsultation, the sometimes lengthy discussions that occur before formal consultation with agencies. NMFS officials stated that is is difficult to discern how much work during preconsultation should be attributed to the Endangered Species Act because preconsultation often includes discussion of other subjects, such as complaince with other federal, state, and local requirements. NMFS officials also stated that determining the level of effort was not a priority, given limited resources. FWS officials has similar concerns, although the agency has recently formed an oversight committee for its consultation tracking system and will consider preconsultation activities.

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

    Agency Affected: Department of the Interior

  3. Status: Open

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

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

    Agency Affected: Department of the Interior

  4. Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

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

    Agency Affected: Department of Commerce

  5. Status: Open

    Comments: The Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), the Bureau of Land Management, and the Forest Service have continued to devote significant effort to supporting the use of "streamlining", a process in which interagency teams of biologists seek consensus on proposed actions before formal consultation. Officials at some of these agencies noted that most disagreements about when consultation is needed have been resolved using these interagency teams. The Corps issued guidance for compliance with consultation requirements that includes, among other things, clarification on when consultation is needed and when disagreements over projects should be brought to the attention of managers. An FWS official we spoke with said that disagreements or confusion about what is needed for consultation tends to subside over time as federal agencies get more experience with the process and as FWS and NMFS become familiar with agency actions that need to go through consultation. Some officials also noted that disagreements become more likely as the types of actions that must be consulted on change or increase in complexity.

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

    Agency Affected: Department of Defense

  6. Status: Open

    Comments: The National Marine Fisheries Service (NMFS), the Fish and Wildlife Service (FWS), the Bureau of Land Management, and the Forest Service have continued to devote significant effort to supporting the use of "streamlining", a process in which interagency teams of biologists seek consensus on proposed actions before formal consultation. Officials at some of these agencies noted that most disagreements about when consultation is needed have been resolved using these interagency teams. The Corps issued guidance for compliance with consultation requirements that includes, among other things, clarification on when consultation is needed and when disagreements over projects should be brought to the attention of managers. An FWS official we spoke with said that disagreements or confusion about what is needed for consultation tends to subside over time as federal agencies get more experience with the process and as FWS and NMFS become familiar with agency actions that need to go through consultation. Some officials also noted that disagreements become more likely as the types of actions that must be consulted on chage or increase in complexity.

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

    Agency Affected: Department of the Interior

  7. Status: Open

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

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

    Agency Affected: Department of the Interior

  8. Status: Open

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

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

    Agency Affected: Department of Agriculture: Forest Service

  9. Status: Open

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

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

    Agency Affected: Department of Commerce

  10. Status: Open

    Comments: In our March 2004 report "Endangered Species: More Federal Management Attention Is Needed to Improve the Consultation Process," GAO found that there were still concerns about the timeliness of the consultation process--the Endangered Species Act requirement that federal agencies consult with the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) to ensure that activities they authorize, fund or conduct will not jeopardize endangered species--notwithstanding steps that had been taken to improve the process. To improve the process, we recommended that FWS and NMFS work together with other agencies to refine guidance on the type and specificity of documentation required in consultations. NMFS, FWS, Bureau of Land Management, the Forest Service, and the Corps have taken a variety of steps to implement this recommendation, including issuing guidance documents, expanding training, and disseminating information on agency web sites. For example, training was provided in 2007 and 2008.

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

    Agency Affected: Department of Commerce

  11. Status: Open

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

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

    Agency Affected: Department of Commerce

  12. Status: Open

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

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

    Agency Affected: Department of the Interior

  13. Status: Closed - Implemented

    Comments: In our March 2004 report "Endangered Species: More Federal Management Attention Is Needed to Improve the Consultation Process," GAO found that there were still concerns about the timeliness of the consultation process--the Endangered Species Act requirement that federal agencies consult with the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) to ensure that activities they authorize, fund or conduct will not jeopardize endangered species--notwithstanding steps that had been taken to improve the process. We recommended that FWS and NMFS and other agencies should work together to evaluate efforts to improve the consultation process and use the results as a basis for future management action. FWS and NMFS, working with other agencies, have participated in various reviews of consultation improvement efforts. For example, a FWS/NMFS analysis of BLM and Forest Service projects done through an expedited consultation process for activities conducted under the National Fire Plan found that a significant percentage of projects did not meet the documentation criteria for describing the project area, the project, the species affected, and the likely effects (January 2008). As a result, NMFS and FWS officials provided feedback to agency staff involved in the consultations about ways to improve the assessments. In addition, Forest Service officials increased their oversight and added guidance for these types of projects. The agencies have continued to expand their use of "streamlining" and other efficiencies to other types of federal actions and other areas of the country.

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

    Agency Affected: Department of Defense

  14. Status: Closed - Implemented

    Comments: In our March 2004 report "Endangered Species: More Federal Management Attention Is Needed to Improve the Consultation Process," GAO found that there were still concerns about the timeliness of the consultation process--the Endangered Species Act requirement that federal agencies consult with the Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) to ensure that activities they authorize, fund or conduct will not jeopardize endangered species--notwithstanding steps that had been taken to improve the process. We recommended that FWS and NMFS and other agencies should work together to evaluate efforts to improve the consultation process and use the results as a basis for future management action. FWS and NMFS, working with other agencies, have participated in various reviews of consultation improvement efforts. For example, a FWS/NMFS analysis that was published in January 2008 of BLM and Forest Service projects done through an expedited consultation process for activities conducted under the National Fire Plan found that a significant percentage of projects did not meet the documentation criteria for describing the project area, the project, the species affected, and the likely effects. As a result, NMFS and FWS officials provided feedback to agency staff involved in the consultations about ways to improve the assessments. In addition, Forest Service officials increased their oversight and added guidance for these types of projects. Moreover, the agencies have continued to expand their use of "streamlining" and other efficiencies to other types of federal actions and other areas of the country.

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

    Agency Affected: Department of Commerce

 

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