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GAO Report Details Delays, Problems in ESA Consultations by Barry Espenson Columbia Basin Bulletin - July 11, 2003

Although federal fisheries and action agencies have made improvements in streamlining endangered species consultations in the Pacific Northwest, lengthy delays and other problems persist, the General Accounting Office told Congress last month.

Due to fear of legal challenges, poor interagency communications, staff turnover, lack of resources and other factors, consultations have resulted in delays of months or years for federal projects and public land activities that affect salmon and other endangered fish, a GAO study found. The GAO is a congressional agency that audits federal programs.

"Despite the improvement efforts, (fisheries) service and action-agency officials, as well as non-federal parties, continue to have concerns with the consultation process," Barry T. Hill, GAO director of natural resources and environment, said.

A key problem that lengthens the consultation process is "the lack of a shared understanding between the services and action agencies on what constitutes a complete biological assessment," Hill said. "This can lead the services to make multiple requests for information from the action agencies about an activity until the services are confident that a biological assessment adequately addresses the effects of the proposed activity on the species."

The problem is compounded when the services and action agencies attempt to ensure that biological assessments are "bullet proof" by making them so comprehensive that they will be immune to any legal challenges, he said.

The findings were presented June 25 in testimony to the Senate subcommittee on fisheries, wildlife and water. Subcommittee Chairman Mike Crapo, R-Idaho, requested the study, which is ongoing.

The GAO studied efforts to address delays and other consultation problems stemming from a major increase in section 7 consultations since the late 1990s, when several salmon and other fish in Oregon, Washington and Idaho were declared endangered or threatened under the Endangered Species Act. Section 7 of the act requires federal agencies to consult with federal fish and wildlife agencies when projects or proposed activities could jeopardize a threatened or endangered species or destroy its critical habitat.

The GAO study focused on the Pacific Northwest regional offices of the National Marine Fisheries Service, Fish and Wildlife Service and four federal action agencies - the Department of Interior's Bureau of Land Management and Bureau of Reclamation, the Department of Agriculture's Forest Service, and the Army Corps of Engineers.

The action agencies issue permits for nonfederal activities that may require consultation, including grazing, timber harvesting and mining on federal lands, and building structures such as piers and docks on private property. The GAO also contacted commercial businesses, private landowners, developers and local governments that conduct these permitted activities.

Crapo criticized a trend toward lengthy consultations and comprehensive biological assessments on minor or environmentally beneficial projects and activities. Of 14,000 consultations conducted in the Pacific Northwest in recent years, about 13,000 could have been discounted because they were insignificant or were beneficial to salmon and other environmental qualities.

Federal agencies are "creating too broad a focus and diverting resources away" from better public uses, including endangered species protection, Crapo said. Noting that NMFS regional consultation staff had grown from six people to 120 people, Crapo said he wondered if it was helping improve projects and avoid harm to endangered species or, instead, spending a significant amount of money to evaluate Christmas tree cutting permits and permits to build boat docks.

The regional offices of the National Marine Fisheries Service, Fish and Wildlife Service and four federal action agencies have made progress in streamlining and making other improvements, the GAO said.

For example, the National Marine Fisheries Service opened additional offices to facilitate consultations at remote locations.

The services also increased their use of interagency teams and of "programmatic" consultations that cover multiple activities that are similar in nature, Hill said.

Programmatic consultations minimize the need to consult on individual activities. For example, one consultation in western Oregon covers ten types of routine activities in three national forests and two Bureau of Land Management districts.

Interagency teams streamline the consultation process by working together on multiple activities, improving communication, reaching agreement on the potential effects of activities early in the process, and resolving problems that arise to ensure that proposed activities will not negatively affect listed species.

Despite the improvements, concerns about delays, conflicts, costs and other problems persist among fisheries agencies, action agencies, applicants for federal permits and environmental groups, GAO found.

Multiple requests for information to the action agencies are sometimes due to service biologists' being unfamiliar with action agency programs, partly owing to high turnover, Hill said. Agency officials also cited a lack of sufficient budget resources, particularly at the fisheries services, where staff increases have not kept pace with their growing workloads.

"Many service and action-agency officials said that these requests for additional information and associated discussions can delay the consultation process and cause frustration," Hill said in his written testimony. "Disagreements over the detail needed in biological assessments are exacerbated because many officials perceive the consultation process as personality-driven."

Service and action-agency officials told GAO auditors that sometimes officials on both sides of the issue take unyielding positions on consultations, either on behalf of the activity or the listed species, and they "waste time arguing."

In addition, action-agency officials said some service biologists, particularly new ones, can be "overly zealous in their efforts to protect species and may be unlikely to compromise," the GAO said. "At the same time, action agencies do not always involve the services early enough in consultation, making the process difficult."

"In other cases, officials told us that some individuals that are key to the consultation process lack the interpersonal or negotiation skills necessary to resolve conflicts that arise in the process."

When fisheries and action agencies disagree over a consultation, the problem is sometimes compounded by the reluctance of staff to elevate issues to management for resolution, Hill said.

In response to the study, National Marine Fisheries Service officials said they recognize the need for better guidance regarding the level of detail required in biological assessments and are developing training for their biologists, along with a Web-based template and checklist for action agencies. Also, service officials believe deadlocked disagreements over biological assessments are less common than they used to be, and that increased staff, planning, and field offices have helped alleviate problems.

High turnover among service biologists contributes to their lack of familiarity with action-agency activities. The time required for them to learn about activities and how they may negatively affect species can lengthen the consultation process.

In one case, "service biologists did not understand the process of mining for gold in streams until they were given a field demonstration," GAO said. Seeing the mining equipment in operation helped facilitate the consultation process because the biologists did not have to ask numerous clarifying questions to understand the activity's potential impact. But due to resource limitations, agencies are unable to make site visits a routine part of consultation, GAO said.

Action agency officials also expressed a concern that the service and action-agency roles are not clearly defined, Hill said. "For example, according to action-agency officials, service officials sometimes make judgments about whether an activity should occur or how it should occur, rather than just judging its potential effects on species," he said.

Among the nonfederal parties, permit applicants expressed concerns about the time and expense required for the consultation process, and environmental groups said land management decision-making processes, such as consultation, are often closed to them until after final decisions are made. Environmentalists said as a result, "the only way they can make their voices heard is through administrative appeals and lawsuits," GAO said.

Among specific examples of delays and cost increases for permit applicants and federal activities cited in the GAO testimony were:

• One private landowner waited about 3 years, including time for Forest Service permit review and consultation-related activities, for a permit that would allow him to cross Forest Service land to harvest his timber stand.
• The average time for the Corps of Engineers to process 19 permits issued in 2002 for building private docks or for similar activities on Lake Washington near Seattle was about 2 years.
• At least two dozen Forest Service timber projects in Oregon have awaited consultation for 2 years, according to a Forest Service official, because a court ruled the National Marine Fisheries Service used insufficient scientific data to support a determination that natural vegetation growth would adequately mitigate the effects of logging.

In the case of the timberland owner, he was required to improve an old logging road and construct half a mile of new road, for about $9,000, and to reimburse the Forest Service $6,800 for preparing a biological assessment for the consultation. The landowner said that when he was finally able to harvest the timber, its market value had dropped by one-third to one-half. The Forest Service biologist who worked on the consultation said it was affected by numerous complicating factors, including a court decision barring the Fish and Wildlife Service from issuing biological opinions on activities affecting spotted owls and a new policy for dealing with private landowners.

For the boat dock permits, consultation added about $10,000 to nonfederal parties' costs, GAO said. The consultation time spent by each service, as well as the Corps of Engineers was spent on helping the permit applicant complete a biological assessment and meet other Corps requirements.

Service officials said such delays were not uncommon when bull trout and salmon were first listed because so many activities, many of them in urban areas, were affected. A NMFS official said the listings created an "automatic backlog" of consultations that overwhelmed them. A Fish and Wildlife Service official also noted that the delays were at least partly due to their unfamiliarity with the effects that building docks could have on bull trout.

Under the Endangered Species Act, if negative effects on listed species appear likely and formal consultation is required, the services have 135 days to formally consult and document in a biological opinion whether the activity could jeopardize the species' continued existence and what actions, if any, are required to mitigate those effects.

But Hill said the major delays in section 7 consultations often occur during "informal" consultations prior to the start of the 135-day "clock."

Related Sites:
Government Accounting Office