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Interagency Section 7 Consultation Streamlining
Training
Bureau of Land ManagementNOAA FisheriesForest Service
Fish and Wildlife Service
February 18 and 19, 2004Boise, Idaho
Interagency Streamlining
Purpose of the Session:
Overview of Processes
Endangered Species Act Section 7
Streamlined Consultation Procedures
Interagency Streamlining
Purpose of the Session, continued:
Overview of Roles
Level 1 and Level 2 Teams
Regional Technical Team
Interagency Coordinating Subgroup
Managers
Streamlining Process
BasisStatute—Endangered Species Act of 1973
16 USC 1536Regulations—Interagency Cooperation
50 CFR 402Policy—Interagency Consultation Handbook
March 1998Procedures—Streamlined Consultation
July 1999
Interagency CooperationStatutory Framework
Policy—ESA Section 2(c)(1)
“. . . Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.”
Interagency CooperationStatutory Framework
Provisions for Interagency Cooperation
7(a)(1) Affirmative Conservation Mandate
Federal agencies shall use their authorities to carry out programs for the conservation of threatened and endangered species.
Interagency CooperationStatutory Framework
7(a)(2)
In consultation with the Secretary (Services), Federal agencies shall insure that any action it authorizes, funds, or carries out will not jeopardize the continued existence of threatened or endangered species. . .
Interagency CooperationStatutory Framework
7(a)(2), continued
. . .Federal agency actions shall not adversely modify designated critical habitat
. . .each agency shall use the best scientific and commercial data available
Interagency CooperationStatutory Framework
7(a)(3) Applicants may request early consultation (50 CFR 402.11)
7(a)(4) Federal agencies shall confer* with the Services if a proposed action may jeopardize a proposed species or adversely modify proposed critical habitat
* confer = verb, conference = noun
Interagency CooperationStatutory Framework
7(b) The Services shall issue a written Opinion analyzing an action’s potential to jeopardize species or adversely modify critical habitat
Interagency CooperationStatutory Framework
7(b) continued If the Service determines jeopardy or adverse modification, it shall suggest reasonable and prudent alternatives to the proposed action
Interagency CooperationStatutory Framework
7(c) Federal agencies shall request species lists for proposed actions and carry out biological assessments identifying whether any threatened or endangered species or critical habitat may be adversely affected
Interagency CooperationStatutory Framework
7(d) After consultation is initiated, Federal agencies shall not make irretrievable or irreversible commitments of resources that would preclude formulation or implementation of any reasonable and prudent alternative to the proposed action
Interagency CooperationStatutory Framework
7(e) An Endangered Species Committee shall be established to review applications from Federal agencies and applicants for exemptions from the requirement to preclude jeopardy or adverse modification
7(f) through (n) Procedures for exemption
Interagency CooperationStatutory Framework
7(o) Any action that is consistent with terms and conditions of a Biological Opinion shall not be subject to the prohibitions under Section 9 of the Act
Section 7 ConsultationTerminology
Action activities or programs of any kind funded, authorized, or carried out by Federal agencies
Action Area all areas to be affected directly and indirectly by the Federal action (not just the immediate area of the action)
Section 7 ConsultationTerminology
Adverse Modification A direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.
Section 7 ConsultationTerminology
Cumulative Effects Effects of future state or private activities that are reasonably certain to occur within the action area
Destruction or Adverse Modification Direct or indirect alteration of critical habitat that appreciably diminishes the value of critical habitat for survival and recovery of species
Section 7 ConsultationTerminology
Effect of the Action direct and indirect effects on species or critical habitat, considered along with the environmental baseline, cumulative effects, and effects of interrelated and interdependent actions
Section 7 ConsultationTerminology
Effect of the Action—Direct Effects Are contemporaneous with and occur in the immediate area of the action
Effect of the Action—Indirect Effects Are caused by the action, are later in time, and are reasonably certain to occur
Section 7 ConsultationTerminology
Effect of the Action--Interrelated Actions Are part of the larger action and depend on the larger action for their justification
Effect of the Action—Interdependent Actions Have no independent utility apart from the action under consultation
Section 7 ConsultationTerminology
Environmental Baseline conditions for species or critical habitat in the action area at the time an action is proposed; past and present effects of all Federal, state, and private actions
Section 7 ConsultationTerminology
Jeopardize the Continued Existence of To engage in an action that would directly or indirectly reduce appreciably the likelihood of survival and recovery of listed species in the wild by reducing reproduction, numbers, or distribution
Section 7 ConsultationTerminology
Reasonable and Prudent Alternative Alternative actions that are consistent with the original proposal and that remove jeopardy or adverse modification
Section 7 ConsultationTerminology
Reasonable and Prudent Measures Actions necessary or appropriate to minimize the amount or extent of incidental take
Terms and Conditions Methods by which Reasonable and Prudent Measures are accomplished
Consultation Process
Informal ConsultationA voluntary* process that includes discussion, correspondence, site inspections, draft document review, and any coordination between the action agency and Services
*voluntary in that formal consultation may be requested without previous coordination
Consultation Process
Informal Consultation—Purposes1. Identify potential effects of an action2. Identify opportunities to avoid and
reduce effects3. Explore opportunities to benefit species
or critical habitat4. Determine whether formal consultation is
needed
Consultation Process
Informal Consultation—Potential Outcomes
1. Avoidance of all impacts (no effect); no further consultation required
2. Determination of “not likely to adversely affect” and concurrence by the Service
3. Initiation of formal consultation
Consultation Process
Formal Consultation—Purpose
In a Biological Opinion, determine whether an action may jeopardize listed species or adversely modify critical habitat
Consultation Process
Biological Opinion—Key Components• Descriptions of the proposed action, status
of the species, baseline conditions, direct, indirect effects of the action, effects of interrelated interdependent actions, and cumulative effects
• Conclusion regarding jeopardy or adverse modification
Consultation Process
Biological Opinion—Key ComponentsIncidental Take Statement• Amount and extent of take anticipated for
wildlife*• Effect of the take• Exemption for prohibitions under Section 9
*No take prohibition for plants; wildlife includes any animal, including fish and invertebrates
Consultation Process
Biological Opinion—Key Components
Incidental Take Statement
• Exemption depends on conformance with reasonable and prudent measures and terms and conditions that implement them
• Reporting required
Consultation Process
Conference• Required if an action may jeopardize proposed
species or adversely modify proposed critical habitat
• Provides Services information on status of proposed species and critical habitat for consideration in the listing decision
• Conference Opinions and Reports can be “rolled over” in event of a listing
Consultation Process
Programmatic Consultations—Types
• Groups of similar actions
• Groups of actions in a geographic area or time period
• Programs of work
• Species-specific sideboards applicable to a variety of actions
Consultation Process
Plan Level Consultations• Required (PRC Decisions aka Rothstein)• Effects determination based on impacts of
actions that are authorized by the Plan– i.e. if the plan would authorize actions
with adverse effects, then the appropriate determination is LAA
Consultation Process
Plan Level Consultations, continued• Generally do not have location- or time-
specific actions identified• Subsequent consultation is required for
actions implemented under plans (PRC Decisions)
• Future consultations may be tiered to plan consultation
Consultation Process
Plan Level and Programmatic Consultations
August 2000 National MOA
• FS, BLM, FWS, NOAA
• Similar to NW 1995 and 1999 MOAs
• Provides guidelines for streamlined consultation
• Requires establishing local agreements
July 1999
Streamlined Consultation Procedures for Section 7
of the
Endangered Species Act
Streamlined Consultation—History
• May 1995—Original Agreement
• July 1999—Procedures and Qs and As Provided
• May 2003—Memorandum from Regional Executives Restating Commitment to the Process
Streamlined Consultation—Intent• Further conservation of listed and
proposed species• Efficiently conclude consultation for
actions that comply with management plans and programmatic consultations
• Use interagency teams to develop BAs, effects determinations, and framework for BOs
Streamlined Consultation
Early planning is key to the success of streamlining.
This includes interagency participation in initial stages of project development
planning and project design
preliminary effects determinations
preparation of preliminary BA
Streamlined Consultation
The streamlined consultation process is intended to contribute to the goal of making section 7 consultation more efficient and effective.
Streamlined Consultation StructureInteragency Teams
Level 1: biologists and botanists from each of the four agencies whose role is to assist land managers in designing programs and activities to minimize adverse impacts to listed and proposed species
Streamlined Consultation StructureInteragency Teams
Level 1: • Functions as a team, findings are by
consensus, resolve most contentious issues• Support development of BAs
– Identify information needs– Review adequacy of draft BAs– Review findings for consistency with plans,
guidance, programmatic consultation
Streamlined Consultation StructureInteragency Teams
Level 1: • Recommend processes to sort, batch, and
prioritize actions• Work with action agency personnel—specialists,
ID Teams, line officers, District and Field Office staff
• Advise Level 2 and elevate issues as needed
Streamlined Consultation StructureInteragency Teams
Level 2:
• Comprised of line officers and managers
• Assure Level 1 teams are able to successfully accomplish their duties
• Oversee and assist Level 1 in regular work
• Identify time frames and work priorities
Streamlined Consultation StructureInteragency Teams
Level 2:
• Resolve elevated issues
• Elevate disputed issues to RTT
• Serve as liaison to Level 1 for Regional policy and direction
• Coordinate with other interagency groups
Streamlined Consultation StructureInteragency Teams
Regional Technical Team
Interagency Coordination Subgroup
Regional Executives
Streamlined Consultation StructureThree Phases
Phase 1: Preliminary discussions and preliminary effects determinations
Phase 2: Development and completion of Biological Assessments
Phase 3: Preparation of Letters of Concurrence and Biological Opinions
Streamlined Consultation ProcessPhase 1
Role of Level 1• Review project design and preliminary
effect determinations• Review status of the species in the action
planning area• Organize effects determinations to
facilitate Phase 2• Identify information needs
Streamlined Consultation ProcessPhase 1
Role of Level 1, continued
Involve Level 2 if– issues arise that cannot be resolved– direction is needed regarding timeframes or
workload priorities– guidance is needed on policy or managerial
constraints– a briefing on issues is desirable
Streamlined Consultation ProcessPhase 1
If the Level 1 Team disagrees with the action agency’s (i.e. ID Team biologist’s) preliminary effects determination, the action agency may
accept the consensus agreementprovide additional informationmodify the actionrequest that Level 1 elevate
Streamlined Consultation ProcessPhase 2
Biological Assessment Preparation
• Action agency is responsible
• Services provide guidance and assistance
• Issues identified in Phase 1 should be adequately addressed
• Level 1 must agree on the final BA before it is submitted
Streamlined Consultation ProcessPhase 2
Note: While 50 CFR 402.12 only requires preparation of a Biological Assessment for major construction activities (as per NEPA), the Streamlined Procedures use the term to refer to any document prepared to support a consultation request.
Streamlined Consultation Process Phases 2 and 3
For no effect determinations
• Action agency completes internal documentation
• No consultation is required
• Level 1 teams may be asked for technical assistance or advice
Streamlined Consultation ProceduresPhases 2 and 3
For not likely to adversely affect determinations
Phase 2: The action agency submits a written request for concurrence to the Services along with the final BA
Phase 3: Written concurrence provided within 30 days
Streamlined Consultation ProceduresPhases 2 and 3
For likely to adversely affect determinationsPhase 2: Action agency submits a written
request for formal consultation to the Services along with the final BA
Phase 3: Biological Opinion is provided within 60 days; RPMs and T&Cs should reflect Phase 1 discussion and may be reviewed by Level 1
Streamlined Consultation ProceduresPhase 3
• Time frames begin on the date the Services receive the written request
• The 60-day time frame for BOs may be extended in very limited, very specific situations
• Extensions may be needed for large-scale, complex, or programmatic actions/consultations
Streamlined Consultation Procedures
Reinitiation Triggers
• New information regarding effects
• Modification of the action
• New species is listed or critical habitat designated
• Amount or extent of incidental take is exceeded
Streamlined Consultation Procedures
Candidate Species• Must be considered by action agencies
under authorities in addition to ESA• Actions should be designed to protect
candidates• May be discussed by Level 1• Level 1 process should not be hindered or
delayed by issues with candidates
Streamlined Consultation Elevation Process
Elevation of issues from one level to the next should not be considered a “failure” but an indication that the process effectively addresses problems of conflicting policy or interpretation of standards or direction.
Streamlined Consultation Elevation Process
The purpose of elevation is to avoid surprises and unnecessary delays
Streamlined Consultation Elevation Process
Level 1 should elevate issues to Level 2
• When differences in interpretation preclude a workable consensus
• For clarification of policy or direction
• If progress toward issue resolution is not forthcoming
Streamlined Consultation Elevation Process
Level 1 and 2 Teams should develop local procedures for elevation that address
• Written documentation, format– statement of the issue
– positions of the team members
• Provisions for joint Level 1 and 2 discussions• Time frames for Level 2 response• Documentation/format of response
Streamlined Consultation Elevation Process
If Level 2 cannot resolve an issue• Elevate via a letter to the appropriate
Regional Executives• Executives may designate staff to assist in
developing a response• Executives will make an interagency
decision and provide direction or instruction to Level 1 and 2
Streamlined Consultation Elevation Process
If Executives cannot resolve an issue
• Elevate to the National Dispute Panel
• Response and direction will be routed through Executives and Level 2 to Level 1 teams for action
Streamlined Consultation Local Procedures
Level 1 Teams should develop operating guidelines that address
• Meeting Procedures
• Biological Assessment formats
• Effects determination guidance
• Provisions for field reviews
• Elevation protocols
Streamlined Consultation Local Procedures
Meeting procedures• Frequency, schedules, agendas• Format for project presentations (Phase 1)• Facilitation, note taking• Pre-meeting information (content, time for
review)• Ground rules for interaction and
communication
Streamlined Consultation Local Procedures
Biological Assessments
• Standard outline
• Minimum information needs
• Format for multiple species BAs
• Formats for bundle/batch, watershed-scale, and other programmatic BAs
Streamlined Consultation Local Procedures
Effects determination guidance
• Definitions
• Species-specific considerations
• Reference documents and procedures (e.g. LCAS)
Streamlined Consultation Local Procedures
Field Reviews
• Pre-project site reviews
• Interaction with ID Teams
• Post-project reviews– Implementation– Effectiveness
Streamlined Consultation Local Procedures
Elevation Protocols• Mechanism for agreeing elevation is needed• Form of documentation
– Issue statement
– Positions of members
– Signature
• Process for transmitting and communicating to Level 2
Streamlined Consultation Local Procedures
Level 2 Teams should develop operating guidelines that address
• Meeting frequency and format• Provisions for joint meetings with Level 1• Procedures for responding to elevations
– Turn-around time– Format of response– Meetings with Level 1
2003 Regional Executives’ Memorandum—Commitments and Expectations
• Executives will meet at least three times yearly to address policy and operational issues
• The process will evolve
• Build on successes
• Field Managers and supervisors should
2003 Regional Executives’ Memorandum—Commitments and Expectations
• Level 1 Teams should have a designated team lead
• Level 2 Teams should assure Level 1 has sufficient administrative support for documenting Level 1 team meetings
• Level 2 Teams should consider assigning a management liaison to Level 1 Teams
2003 Regional Executives’ Memorandum—Commitments and Expectations
• Management liaisons should update Level 2 three times yearly on Level 1 performance
• Management liaisons should alert Level 2 when Level 1 teams encounter problems
• Level 1 and 2 teams should complete annual assessments of their performance
2003 Regional Executives’ Memorandum—Commitments and Expectations
• NOAA Fisheries and FWS personnel should participate in the early phases of planning (under NEPA)
• NEPA documents should fully describe projects, their effects on listed species, and rationales for effects determinations
• BAs should be developed using the NEPA document
2003 Regional Executives’ Memorandum—Commitments and Expectations
• Consultation is expected to be consensus-based
• Team members should have appropriate skills and attitudes for collaborative work
• Managers should reinforce expectation of collaborative, balanced process
• Consensus is not the same as universal satisfaction with decisions
2003 Regional Executives’ Memorandum—Commitments and Expectations
• Level 1 Teams should immediately elevate issues that cannot be resolved in identified time lines
• Level 2 should respond expeditiously (within 30 days)
• Managers and supervisors of level 1 and 2 team members will participate in streamlining training and workshops
2003 Regional Executives’ Memorandum—Commitments and Expectations
• Level 1 and 2 teams should seek advice and expertise of RTT and interagency coordinators
• Issues elevated to Regional Executives will be assigned to Interagency Coordinators for their recommendations—Executives will make the final decision
Streamlined Consultation
Other issues addressed in the 1999 Q & As
• Guidance for team effectiveness (II-B-1,2,3)
• Roles of non-team members (II-B-4, 5)
• Streamlining and NEPA (II-E-1)
Streamlined Consultation
Other issues addressed in the 1999 Q & As
• Information needs and consultation approaches (II-F) – Compliance with programmatic guidance
(INFISH, programmatic consultation, etc.)– Provincial and watershed approaches– Land exchanges
Streamlined Consultation
Other issues addressed in the 1999 Q & As• Role of applicants (II-H-1)• Guidance for areas covered by the Northwest
Forest Plan (III)• Guidance for aquatic species consultation (IV)
– NMFS “matrix” (IV-A-1)
– Bull trout “matrix” (IV-B)
– Essential Fish Habitat (IV-C)
Streamlined Consultation
Other issues addressed in the 1999 Q & As
• Coordination with Native American Tribes (V-B)
• Clean Water Act and ESA Consultation (V-C)
• Example outlines/formats for elevations
Regional Technical Team
Streamlined Consultation
Barbara Hill
OR/WA BLM
Who Are They?
• Composed of regional/state technical ESA and consultation specialists
• Regional/state staff, NOT line officers or decision makers
• Typically one or more per agency in each region/state
• Identified on team list (www.or.blm.gov/esa)
Functions and Duties of RTT
• Provide overall technical oversight and technical assistance on streamlining process
• Serve as primary advisors on streamlining to the Interagency Coordinators (IC) and Executives
Functions and Duties of RTT
• Facilitate streamlining consistency and communication among teams and regions/states
• Identify needed improvements or revisions to streamlining
Functions and Duties of RTT
• Maintain and update streamlined consultation procedures and website• Address issues about implementation of streamlining upon request of ICs and executives• Provide advice, feedback, and support to Level 1 and 2 teams upon request
Further Clarification – RTT Assistance
• Formal elevation and informal assistance processes
• 1999 Procedures identify and clarify formal elevation (IIG)
• Informal assistance highlighted in ICS memo #2
Informal Assistance
• Use to extent practical before formal elevation
• Level 1 and 2 to informally dialogue with RTT and IC
• “Expertise, guidance, advice”