Interagency Section 7 Consultation Streamlining Training Bureau of Land Management NOAA Fisheries Forest Service Fish and Wildlife Service February 18 and 19, 2004 Boise, 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 Basis Statute—Endangered Species Act of USC 1536 Regulations—Interagency Cooperation 50 CFR 402 Policy—Interagency Consultation Handbook March 1998 Procedures—Streamlined Consultation July 1999

Interagency Cooperation Statutory 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 Cooperation Statutory 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 Cooperation Statutory 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 Cooperation Statutory 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 Cooperation Statutory Framework 7(a)(3) Applicants may request early consultation (50 CFR ) 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 Cooperation Statutory Framework 7(b) The Services shall issue a written Opinion analyzing an action’s potential to jeopardize species or adversely modify critical habitat

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

Interagency Cooperation Statutory 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 Cooperation Statutory 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 Cooperation Statutory 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 Cooperation Statutory 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 Consultation Terminology 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 Consultation Terminology 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 Consultation Terminology 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 Consultation Terminology 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 Consultation Terminology 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 Consultation Terminology 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 Consultation Terminology 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 Consultation Terminology 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 Consultation Terminology Reasonable and Prudent Alternative Alternative actions that are consistent with the original proposal and that remove jeopardy or adverse modification

Section 7 Consultation Terminology 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 Consultation A 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—Purposes 1.Identify potential effects of an action 2.Identify opportunities to avoid and reduce effects 3.Explore opportunities to benefit species or critical habitat 4.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 Components Incidental 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 Structure Interagency 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 Structure Interagency 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 Structure Interagency 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 Structure Interagency 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 Structure Interagency 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 Structure Interagency Teams Regional Technical Team Interagency Coordination Subgroup Regional Executives

Streamlined Consultation Structure Three 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 Process Phase 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 Process Phase 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 Process Phase 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 agreement provide additional information modify the action request that Level 1 elevate

Streamlined Consultation Process Phase 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 Process Phase 2 Note: While 50 CFR 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 Procedures Phases 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 Procedures Phases 2 and 3 For likely to adversely affect determinations Phase 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 Procedures Phase 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 (

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”