Streamlined Consultation Training Modules

1. 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: www.blm.gov/or/esa

2. Module 2: An Overview of Streamlined Consultation Procedure Introduction • The Endangered Species Act (ESA) of 1973 required all Federal agencies to address the conservation of endangered and threatened species. • Section 7(a)(1) directs Federal agencies to carry out programs for the conservation of endangered and threatened species. • Section 7(a)(2) directs Federal agencies to ensure that actions they authorize, fund or conduct are not likely to jeopardize the continued existence of listed species or to destroy or adversely modify critical habitat. • ESA section 7 regulations are codified at 50 CFR Part 402 and established the procedures governing how Federal agencies consult with the FWS and NMFS on actions that may affect listed species or critical habitat. These regulations also established conference procedures that address proposed species and proposed critical habitat.

3. Module 2: An Overview of Streamlined Consultation Procedure The Origin of the Consultation Streamlining Process • Prior to the 1990s, the FWS, NMFS, FS and the BLM experienced a gradual but manageable workload increase in implementing the ESA because there were not many listed species in the Pacific Northwest. • Between 1990 and 1999, however, the number of listed species in Washington more than doubled to 40, Oregon nearly doubled to 49, and Idaho nearly tripled to 20. • During the same period, forest health workload on FS and BLM lands significantly increased the consultation workload, but staffing levels did not increase accordingly.

4. Module 2: An Overview of Streamlined Consultation Procedure The Origin of the Consultation Streamlining Process (cont.) • High workloads required conducting consultations in an efficient and effective manner. • Over the last two decades, there has been a growing recognition of integrating Federal agency obligations under sections 7(a)(1) and 7(a)(2) to achieve efficiency and effectiveness of the consultation process relative to the conservation purposes of the ESA. • A formal interagency effort to streamline consultation in the Pacific Northwest via enhanced collaboration and integration began in the mid 1990s, with interagency guidance issued on July 27, 1999. This guidance has helped promote conservation of listed species and efficient regulatory compliance and certainty.

5. Module 2: An Overview of Streamlined Consultation Procedure The Purpose of Streamlined Consultation • Streamlined consultation procedures were developed to: 1) Enhance interagency cooperation for conserving listed and proposed species and designated and proposed critical habitat; 2) Efficiently conclude consultation on actions that comply with management plans and programmatic consultations; and 3) Use interagency teams early in project planning to address concerns with listed species and critical habitat, and to review the adequacy of BAs and effects determinations and develop the framework for BOs. • Another goal of streamlining is to complete consultation within the timeframes needed to meet NEPA requirements and project schedules. Streamlining provides for consultation to occur concurrently with project planning and NEPA.

6. Module 2: An Overview of Streamlined Consultation ProceduresThe following comparisons help distinguish streamlined section 7 consultation from more conventional applications of the section 7 implementing regulations. Streamlined Section 7 Consultation Conventional Section 7 Consultation • Interagency coordination starts early in planning process • Interagency team reviews effects of the proposed action in early stages of planning • Interagency team agrees by consensus on the information included in the BA • BA and environmental assessment (EA) drafted concurrently • BO drafted concurrently with BA for likely to adversely affect (LAA) determinations • Informal consultation completed in 30 days or less after final BA is submitted by action agency to FWS/NMFS for written concurrence • Formal consultation and BO completed in 60 days or less after final BA is submitted by action agency • Interagency coordination usually starts after request for consultation • Action agency biologist or botanist makes effect determinations • Action agency biologist or botanist develops the BA • BA drafted primarily after EA is drafted • BO drafted after request for formal consultation based on LAA determinations • Informal consultation completed after action agency BA is submitted and reviewed for sufficiency by FWS/NMFS; no set deadline for FWS/NMFS response • Formal consultation and BO completed within 135 days after an adequate BA is received by FWS/NMFS

7. Module 2: An Overview of Streamlined Consultation Procedure Participants Streamlining has been adopted by the FS, BLM, FWS and the NMFS within the following geographic locations: • FS Regions 1 (Northern Idaho & Montana), 4 (Southern Idaho Utah, Nevada, and western Wyoming), 5 (California), and 6 (Oregon & Washington) • BLM State Offices, Field Offices and Resource areas in Northern California, Idaho, Montana, Oregon, Washington • FWS Regions 1 (Idaho, Oregon and Washington), Region 6 - (Montana only), and 8 (California only) • NMFS, Northwest Region (Idaho, Oregon and Washington) and Southwest Region (California)

8. Module 2: An Overview of Streamlined Consultation Procedure Interagency Teams Level 1 Interagency Teams • Level 1 teams are the core component of streamlining and are comprised of fish, wildlife, and plant biologists designated by the four consulting agencies to serve as team members. • While each team member represents their respective agency, the most important task of these individuals is to function together as a consultation team. The team's role is to assist land managers in designing programs and activities to minimize adverse impacts to listed and proposed species and critical habitats. • Level 1 teams reach determinations and findings by consensus though open communication and collaboration. Most teams designate a Team Leader to keep their work focused and to serve as a primary contact for Level 2.

9. Module 2: An Overview of Streamlined Consultation Procedure The primary functions and duties of Level 1 Interagency Teams are as follows: • 1. Support development of BAs by identifying information needs; recommending the appropriate scale of analysis; sorting, batching, and prioritizing proposed actions; and reviewing findings of action agency regarding consistency of proposed actions (relative to listed and proposed species and proposed or designated critical habitat) with existing conservation strategies, management plans and guidance, and/or programmatic consultations. • 2. Review adequacy of draft BAs and information supporting effects determinations. • 3. Discuss and agree upon possible reasonable and prudent measures and terms and conditions to avoid or minimize incidental take in the BO. • 4. Serve as advisors to their respective Level 2 team and elevate consultation issues as necessary. • 5. Report on the progress of consultation to their respective Level 2 team and lines officers.

10. Module 2: An Overview of Streamlined Consultation Procedure Level 2 Interagency Teams • The Level 2 Team is comprised of staff supervisors and line officers who ensure Level 1 teams successfully accomplish their duties. The key duties of Level 2 teams are to: • 1. Ensure that Level 1 teams have sufficient resources and time to complete consultations. • 2. Identify time frames and work priorities for consultations conducted by the Level 1 team. • 3. Oversee and monitor performance of Level 1 teams and make adjustments in workload or priorities as needed. • 4. Resolve disputed issues involving effects determinations, information needs for BAs, or other matters elevated by the Level 1 team. • 5. Elevate unresolved issues to the Regional Executives with a cc to the Interagency Coordinating Subgroup (ICS) chair.

11. Module 2: An Overview of Streamlined Consultation Procedure Management Liaison • A management liaison can be a Level 2 team member, line officer, or supervisor whose role is to work with the Level 1 team leader as a facilitator between Level 1 and Level 2 teams. The key duties of a management liaison are as follows: • 1. Attends Level 1 meetings to promote cooperation and collaboration to improve the effectiveness and efficiency of streamlining without swaying the outcome of any consultation • 2. Observes Level 1 team dynamics and performance and is a resource to help resolve Level 1 team issues. • 3. Works with the Level 1 team leader to alert the Level 2 team when prescribed timelines are not being met and why.

12. Module 2: An Overview of Streamlined Consultation Procedure Regional Technical Team (RTT) • The RTT is comprised of technical specialists from regional/state offices of the BLM, FS, FWS and NMFS that are not line officers or decision makers. The primary functions and duties of the RTT include: • 1. Providing oversight and technical assistance on the consultation streamlining process. • 2. Maintaining, updating, or revising streamlining procedures. • 3. Serving as primary advisors to the Interagency Coordinators Subgroup (ICS) and Regional Executives on streamlining procedures and options for resolution of issues elevated by Level 2. • 4. Facilitating consistency and communication among teams and across regions/states. • 5. Providing support to Level 1 and 2 teams upon request from the Regional Executives and the ICS, and helping to resolve technical questions without formal elevation when possible. • 6. Maintaining and updating procedures, materials and information on the streamlining website.

13. Module 2: An Overview of Streamlined Consultation Procedure Interagency Coordinators Subgroup (ICS) • The ICS is comprised of BLM, FS, FWS and NMFS senior staff in the Pacific Northwest to provide oversight and resolution of issues for streamlining. The ICS members function as key advisors to the Regional Executives and Level 2 teams. ICS members are not line officers and do not make policy decisions. The primary functions and duties of the ICS include: •  1. Improving consultation efficiency and effectiveness by providing updated streamlined consultation guidance. • 2. Providing policy leadership by investigating and clarifying policy issues that require regional or national resolution. • 3. Promoting streamlined consultation training.

14. Module 2: An Overview of Streamlined Consultation Procedure Regional Executives • The Regional Executives of the BLM, FS, FWS, and the NMFS have decision authority for issue resolution and policy guidance . The primary functions and duties of the Regional Executives in the consultation streamlining process include: • 1. Making decisions concerning policy and operational issues. • 2. Determining if issue elevation to the National Dispute Panel is necessary.

15. Module 2: An Overview of Streamlined Consultation Procedure National Dispute Panel • The National Dispute Panel was established by a Memorandum of Agreement on salvage-related activities under Public Law 104-19. • The panel is comprised of representatives from the BLM, FS, FWS, NMFS and EPA at the national level to resolve issues elevated by the Regional Executives within 14 days after receipt of the issue.

16. Module 2: An Overview of Streamlined Consultation Procedure Forest Supervisors and District Rangers, BLM Resource Area and District Managers, FWS/NMFS Staff Biologists and Non-consulting Resource Specialists: • Personnel from the BLM, FS, FWS, and NMFS that do not serve as members of Level 1, Level 2, RTT, ICS, or the Regional Executives , but are still integral to the success of streamlining. • Line managers who have decision-making authority in the NEPA process can set sideboards for the scope of analysis and help clarify the feasibility of potential methods for reducing adverse impacts of proposed actions on listed species and critical habitat. • Biologists not serving as Level 1 team members and other specialists can often provide additional critical information.

17. Module 2: An Overview of Streamlined Consultation Procedure Primary Phases of the Streamlined Consultation Process • Early coordination during project planning, interagency collaboration on document development, open exchanges of information and quick resolution of elevated issues are all trademarks of successful streamlined consultations; they occur over three primary phases: • Phase 1: Early discussions by the Level 1 team about the proposed action, listed species and critical habitat, their status in the action area; potential effects, best available information, and preliminary effect determinations.

18. Module 2: An Overview of Streamlined Consultation Procedure Primary Phases (cont.) Phase 2: Development of BAs • Phase 2 involves preparation of the BA by the Level 1 team based on discussions, information, and preliminary effects determinations developed during Phase 1. Phase 2 achieves consensus on what information will be included in the final BA so that additional requests for information will not be necessary. The BA should explain how the action is consistent with the land management plan to evaluate effects of an action on listed or proposed species and critical habitat. • The action agency finalizes the BA with a written request to FWS/NMFS for concurrence on NLAA determinations and requests initiation of formal consultation for LAA determinations. Actions determined to have No Effect on listed species or critical habitat do not require a response from FWS/NMFS. • The Level 1 team must agree that the final BA is complete before it is submitted to the FWS/NMFS.

19. Module 2: An Overview of Streamlined Consultation Procedure Primary Phases (cont.) Phase 3: Preparation of Letters of Concurrence (LOCs) and Biological Opinions (BOs) • The FWS and NMFS are responsible for preparing LOCs and BOs. Both LOCs and BOs can involve Level 1 team collaboration in writing, reviewing and editing. • The FWS/NMFS retain statutory responsibility to develop reasonable and prudent measures and terms and conditions to avoid or minimize incidental take of listed species. However, they are generally based on Level 1 discussions of possible measures to minimize adverse effects . In practice, Level 1 teams often collaborate and discuss RPM's and T&C's in advance of a BO being issued by the FWS or NMFS. • Under streamlining, the FWS/NMFS will respond to a request within 30 days for concurrence after receipt of an agreed-upon final BA and within 60 days for formal consultation after receipt of a final BA. The same time frames apply for reinitiation of consultation (See Module 1). • These timeframes are considered deadlines. The 60-day time frame for BOs may be extended when consultations involve large-scale, complex, or programmatic actions. If an extension is needed, the Level 1 and 2 teams must identify the need and concur on the extension of the BO response prior to submitting the final BA.

20. Module 2: An Overview of Streamlined Consultation Procedure Issue Elevation Process • Resolving issues quickly and constructively is a key to streamlining. Elevation of issues is prudent when substantial progress toward resolution is not happening. Elevations should not be considered “failures” but that conflicting policy or differences in interpretation of standards or direction may exist. • Level 1 teams should elevate issues when differences in interpretation preclude achieving a consensus or clarification of policy is needed. The Level 1 team should make every attempt to resolve the issue prior to elevation, including seeking advice and guidance from the RTT. • Elevation is appropriate when direction is needed regarding timeframes or workload priorities or guidance is needed on technical or policy issues. • Deciding officials such as Field Managers, District Rangers or Field Supervisors may also elevate issues in coordination with the Level 1 team.

21. Module 2: An Overview of Streamlined Consultation Procedure Issue Elevation Process (cont.) • The Level 2 team members should discuss the elevation as soon as possible, preferably within two weeks. Level 2 should review the issue, determine a course of action, and identify a timeframe for reaching a Level 2 decision. • An elevation to Level 2 should either: resolve the issue with guidance to Level 1 (or deciding official), or elevate to the Regional Executives. Either outcome should be documented in a letter to Level 1 or the deciding official. • The Level 2 team should attempt to resolve the issue prior to higher elevation, including seeking the advice of the RTT and the ICS. However, if resolution is not forthcoming, Level 2 should elevate by letter to the Regional Executives (with a cc to the ICS chair). • The Regional Executives may designate staff (such as the RTT or ICS) to assist in developing a response to make an interagency decision and provide direction or instruction to the Level 1 and 2 teams. If the Regional Executives cannot resolve the issue, it should be elevated to the National Dispute Panel with all the supporting information provided by the Level 1 and Level 2 teams. When the issue is resolved, the response and direction will be routed through the Regional Executives to the Level 2 team(s) and then to the Level 1 team(s) for action.