^®: CRE Regulatory Action of the Week

GAO Testifies On Problems In ESA Consultations
The Endangered Species Act requires federal agencies to consult with the Fish and Wildlife Service and the National Marine Fisheries Service to determine the effect the agencies' actions may have on threatened or endangered species. This ESA consultation process has not worked well. It is slow, cumbersome and expensive. It is in large part implemented by court orders in lawsuits brought be environmentalists against the Services. Much, but not all, of the litigation concerns the Northwest where salmon and trout are at issue. The Senate Subcommittee on Fisheries, Wildlife and Water asked GAO to investigate and report on problems with the consultation process and on ways to solve them. GAO gave an interim report in June which is not encouraging. GAO acknowledged that streamlining project reviews had improved the consultation process; however, everyone involved was still dissatisfied and concerned. One major problem is lack of a shared understanding between the Services and action agencies on what constitutes a complete biological assessment, leading to multiple requests for information. There is also confusion and disagreement as to divisions of authority. Environmental groups complain that they are excluded from the decision-making process, and can only have a voice in court. The Services and action agencies in turn complain that they waste time trying to litigation-proof their decision. The Services also emphasize that, despite some staff increases, they still do not have adequate resources for all their consultation duties. Winston does not have any magic solutions to the serious problems with this important regulatory process. However, Winston does suggest that if Congress wants to retain the current ESA consultation process, then Congress should allocate the resources necessary to do the job. Otherwise, Congress should change the process.