Streamlined Consultation Training Modules Module #1 - Frequently Asked Questions on the Section 7 Consultation Process Module #2 - An Overview of Streamlined Consultation Procedures Module #3 - Conducting Effective and Efficient Streamlined Section 7 Consultations Module #4 - Procedures for Elevating Unresolved Issues under the Streamlining Consultation Process Module #5 - Overview of Counterpart Regulations Module #6 - An Overview of Streamlined Consultation Procedures for Line Officers and Managers Prepared for The Northwest Interagency ESA Website:

Module 5: Overview of Counterpart Regulations Background and History of Counterpart Regulations The current Counterpart Regulations were established after a severe fire season in 2000 when DOI and DOA outlined a new approach to manage wildland fires which became known as the National Fire Plan (NFP). The NFP provided a response to a growing public awareness regarding the impact of decades of fire suppression on hazardous fuel accumulation and the health and safety of the natural and human environment. The NFP called for a substantial increase in the number of forested acres treated annually to reduce hazardous fuels. Congress increased funding to new and existing programs to handle the increased workload. In August 2002, when 7.1 million acres of wildlands burned, President Bush announced the Healthy Forests Initiative (HFI): An Initiative for Wildfire Prevention and Stronger Communities to implement the NFP.

Module 5: Overview of Counterpart Regulations Background and History (cont.) The initiative was intended to accelerate implementation of the fuels reduction and ecosystem restoration goals of the NFP to minimize the wildfire damage. President Bush signed the Healthy Forests Restoration Act of 2003 (PL ) (HFRA). HFRA was written to speed up fuel reduction and forest restoration projects on Federal lands at risk of wildland fire and/or insect and disease epidemics by reducing regulatory obstacles. As part of the HFI, the FWS and NMFS proposed counterpart regulations and guidance to assist in streamlining ESA section 7 for NFP actions that were NLAA (See Counterpart Regulations, Section ). The final joint Counterpart Regulations were published on December 8, 2003 (68 FR 68254) and became effective on January 7, 2004.

Module 5: Overview of Counterpart Regulations Purpose of the Counterpart Regulations The Counterpart Regulations complement the consultation regulations (50 CFR 402) by providing an alternative process for completing section 7 consultations for Federal actions within the NFP. Alternative consultation eliminates the need to conduct informal consultation and the requirement to obtain written concurrence from the FWS and NMFS for those NFP actions that the FS and BLM determine are NLAA listed species or designated critical habitat. The Counterpart Regulations facilitate section 7 compliance for NLAA actions without review by the FWS or NMFS.

Module 5: Overview of Counterpart Regulations Alternative Consultation Agreements Alternative Consultation Agreements (ACAs) were signed by the FWS, NMFS and FS, and separately by the FWS, NMFS and BLM; both agreements became effective on March 3, These two agreements cover FS and BLM actions for the NFP. Fire plan projects are actions determined by the FS and BLM to be within the scope of the NFP, such as prescribed fire, mechanical fuels treatments, emergency stabilization, burned area rehabilitation, road maintenance and operation activities, ecosystem restoration, and culvert replacement actions. The ACAs remain in effect unless revoked by any signatory party.

Module 5: Overview of Counterpart Regulations Components of the ACAs are: (1) a list or description of the staff positions within the agency that have authority to make NLAA determinations; (2) a program for developing and maintaining the skills necessary to make NLAA determinations, including a jointly developed training program; (3) provisions for incorporating new information and newly listed species or designated critical habitat into the effects analysis for proposed actions; (4) provisions for the agency to maintain a list of NFP projects that receive NLAA determinations under the agreement; and (5) a mutually-agreed-upon program for monitoring ACA activities and periodic program evaluations.

Module 5: Overview of Counterpart Regulations Required Training and Certification of Personnel The FWS, NMFS, FS, and BLM developed a required web-based training program to provide FS and BLM with the necessary skills to ensure consistency and standards as described in the ESA, section 7 implementing regulations, and the FWS/NMFS 1998, Consultation Handbook. The NFP project curriculum covers a working knowledge of the Counterpart Regulations, the procedures outlined in the ACAs, standards for conducting and documenting NLAA determinations, and steps for developing administrative records. BLM employees can receive on-line training through DOI Learn. Non-BLM employees can go to the DOI Learn Course Catalog, enter the course number 1386, and select "Search." To enroll, select the course name, Endangered Species Act - Counterpart Regulations for Fire Plan Projects. For assistance, contact GeoLearning at or (866)

Module 5: Overview of Counterpart Regulations Training and Certification (cont.) Responsibility for documenting compliance with the ESA under the Counterpart Regulations lies with the line officer having decision authority for the project. Both the line officer and the biologist, botanist, or ecologist who completes the BA/BE must complete the required course and pass the exam. After the training requirements are fulfilled, the line officer must give written notification to the appropriate FWS Field Office and NMFS Director of Protected Resources in Silver Spring, Maryland prior to implementing the Counterpart Regulations. The line officer also completes the National Fire Plan Project ESA Compliance Statement form (Appendix 1 of the ACAs) to document compliance for each NFP project. Washington Office levels of the FS and BLM maintain lists of line officers and staff who have completed the training and certification, and share these lists with FWS and NMFS.

Module 5: Overview of Counterpart Regulations Standards and Steps of Project Review and Analysis In assessing effects of NFP actions, the FS and BLM consider the following standards in making NLAA determinations relative to listed species or the primary constituent elements of critical habitat: (1) direct and indirect effects of the proposed action, (2) effects of interrelated or interdependent actions, (3) the environmental baseline, and (4) whether the effects are insignificant, discountable, wholly beneficial, or adverse. The FS or BLM documents the analysis used in making the NLAA determination in a BA or BE. The FS and BLM must consider the best scientific and commercial data available and provide a reasoned explanation for its conclusions.

Module 5: Overview of Counterpart Regulations Standards and Steps (cont.) The six primary steps of the process for determining project effects are: 1) identify the action; 2) identify the action area; 3) identify the listed species and critical habitat within the action area; 4) describe listed species and critical habitat status within the action area; 5) conduct an effects evaluation including exposure and response analyses; and, 6) make a determination of effects. These six steps are described in detail in Module 3 - (Conducting Effective and Efficient Streamlined Section 7 Consultations).

Module 5: Overview of Counterpart Regulations Incorporating New Information After determinations of effect are made and during project implementation, the Counterpart Regulations require the FS and BLM to consider any significant new information about the species or critical habitat, the action and the action area to ensure there is no new basis for different determinations of effect or a need to reinitiate consultation on the project. New species and critical habitat listings, and new species occurrences in project areas are examples of new information to be considered.

Module 5: Overview of Counterpart Regulations Maintaining a List and Record of Fire Plan Projects Each year, Washington Office levels of the FS and BLM request information on projects that have been completed using the Counterpart Regulations, including the project name, type of project, and a list of threatened or endangered species and critical habitat for which a NLAA determination was made. These lists of projects are provided to the NMFS and the FWS.

Module 5: Overview of Counterpart Regulations Monitoring, Program Evaluation, and Reporting The monitoring program evaluates if the FS and BLM are making NLAA determinations consistent with the best available scientific and commercial information, and is in compliance with the Counterpart Regulations. The national monitoring team is comprised of individuals from the FWS, NMFS, FS and BLM. The FWS and NMFS team members are responsible for conducting the evaluation. The FS and BLM team members are responsible for providing context and clarifications, and for answering questions on projects. The team bases its review on completed projects that used the Counterpart Regulations, with the focus on BAs/BEs.

Module 5: Overview of Counterpart Regulations The National Monitoring Team (cont.) The Team evaluates if the FS or BLM considered relevant information and used the best scientific and commercial data available in evaluating the effects of the proposed action on listed species and critical habitat and in making the NLAA determination. The Team also evaluates if the FS or BLM demonstrated a rational connection between the information, the proposed action and the NLAA determination. This includes direct effects, indirect effects, effects of any interrelated actions or interdependent actions, and a description of how the effects are insignificant, discountable and/or entirely beneficial.

Module 5: Overview of Counterpart Regulations The National Monitoring Team (cont.) The team uses the Evaluation of Determinations of Effects Documents that Support NLAA Determinations Form (Appendix 3 to the ACAs) to document project reviews. If all determinations were made appropriately, then no further review is needed. If a determination is inappropriate, the team determines a proper follow- up with the subunit. The team prepares a monitoring report, which may identify corrective actions, or recommend changes in the FS or BLM methods of implementing the ACAs. NMFS and/or FWS may suspend or exclude any subunit from participating under the ACA, or otherwise terminate or suspend the ACA. A Federal Register notice of monitoring report availability is prepared by the NMFS or FWS. The monitoring report is posted on a NMFS and/or FWS website.