Interagency Section 7 Consultation Streamlining Training Bureau of Land Management NOAA Fisheries Forest Service Fish and Wildlife Service February 18

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.”


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.


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. . .


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


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


7(b) The Services shall issue a written Opinion analyzing an action’s potential to jeopardize species or adversely modify critical habitat


7(b) continued If the Service determines jeopardy or adverse modification, it shall suggest reasonable and prudent alternatives to the proposed action


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


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


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


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)


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.


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


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


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


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


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


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


Reasonable and Prudent Alternative Alternative actions that are consistent with the original proposal and that remove jeopardy or adverse modification


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


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


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


Formal Consultation—Purpose

In a Biological Opinion, determine whether an action may jeopardize listed species or adversely modify critical habitat


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


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


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


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


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


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


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


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


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


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


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


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


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



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


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


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


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


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


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


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.


The purpose of elevation is to avoid surprises and unnecessary delays


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


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


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


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


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


Biological Assessments

• Standard outline

• Minimum information needs

• Format for multiple species BAs

• Formats for bundle/batch, watershed-scale, and other programmatic BAs


Effects determination guidance

• Definitions

• Species-specific considerations

• Reference documents and procedures (e.g. LCAS)


Field Reviews

• Pre-project site reviews

• Interaction with ID Teams

• Post-project reviews– Implementation– Effectiveness


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


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


• 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


• 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


• 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


• 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


• 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


• 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


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)



• Information needs and consultation approaches (II-F) – Compliance with programmatic guidance

(INFISH, programmatic consultation, etc.)– Provincial and watershed approaches– Land exchanges


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)



• Coordination with Native American Tribes (V-B)

• Clean Water Act and ESA Consultation (V-C)

• Example outlines/formats for elevations



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


• Facilitate streamlining consistency and communication among teams and regions/states

• Identify needed improvements or revisions to streamlining


• 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”

Documents

Interagency Section 7 Consultation Streamlining Training Bureau of Land Management NOAA Fisheries Forest Service Fish and Wildlife Service February 18