Streamlined Consultation Training Modules

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 - Overview of Streamlined Consultation Procedures for Line Officers and Managers Module #7 - Streamlined Section 7 Consultation Short Course Prepared for The Northwest Interagency ESA Website: www.blm.gov/or/esa

Module 7: Streamlined Section 7 Consultation Short Course Introduction This module is a compilation of the previous six training modules and is intended to serve as a short course for streamlined section 7 consultation. This module opens with a brief synopsis of the Endangered Species Act requirements for Federal agencies to address the conservation of endangered and threatened species through the section 7 consultation process for actions they propose. Next, a series of frequently asked questions regarding the section 7 process are provided with answers developed by the U.S. Fish and Wildlife Service for the agency’s national website (www.fws.gov). Next, this module summarizes the purpose and principal goals of streamlined section 7 consultation and illustrates comparisons with more conventional consultation processes. The basic organization and essential elements of streamlined section 7 consultation are then described, with some recommendations for customizing and improving the streamlining process by streamlining teams. Finally, a brief overview of the Counterpart Regulations process for addressing National Fire Plan projects is provided to complete this module.

Module 7: Streamlined Section 7 Consultation Short Course Section 7 of the ESA • 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.

Module 7: Streamlined Section 7 Consultation Short Course What steps are involved in a section 7 consultation? • The Federal agency, or the applicant as the designated non-Federal entity, contacts the appropriate local U.S. Fish and Wildlife Service office to determine if listed species are present within the action area. The Service responds to the request by providing a list of species that are known to occur or may occur in the vicinity; if the Service provides a negative response, no further consultation is required unless the scope or nature of the project is altered or new information indicates that listed species may be affected. • If listed species are present, the Federal agency must determine if the action may affect them. A may affect determination includes those actions that are not likely to adversely affect as well as likely to adversely affect listed species. If the Federal agency determines that the action is not likely to adversely affect listed species (e.g., the effects are beneficial, insignificant, or discountable), and the Service agrees with that determination, the Service provides concurrence in writing and no further consultation is required.

Module 7: Streamlined Section 7 Consultation Short Course What steps are involved in a section 7 consultation? (cont.) • If the Federal agency determines that the action is likely to adversely affect listed species, then it must request initiation of formal consultation. This request is made in writing to the Services, and includes a complete initiation package. Up to that point, interactions have been conducted as informal consultation; however, once a request for formal consultation is received, the process becomes formal, and specific timeframes come into play. Formal consultation is initiated on the date the package is received, unless the initiation package is incomplete. If the package is incomplete, the Service notifies the Federal agency of the deficiencies. If a complete package is submitted, the Service should provide written acknowledgment of the request within 30 working days. This written acknowledgment is not mandatory, but is encouraged so that there is documentation in the administrative record that formal consultation has been initiated.

Module 7: Streamlined Section 7 Consultation Short Course What steps are involved in a section 7 consultation? (cont.) • From the date that formal consultation is initiated, the Service is allowed 90 days to consult with the agency and applicant (if any) and 45 days to prepare and submit a biological opinion; thus, a biological opinion is submitted to the Federal agency within 135 days of initiating formal consultation. The 90-day consultation period can be extended by mutual agreement of the Federal agency and the Service; however, if an applicant is involved the consultation period cannot be extended more than 60 days without the consent of the applicant. The extension should not be indefinite, and a schedule for completion should be specified.

Module 7: Streamlined Section 7 Consultation Short Course What section 7 responsibilities does a Federal agency bear if it is considering an action that may affect species proposed for listing under ESA? • Section 7(a)(4) requires Federal agencies to confer with the Services on any agency action that is likely to jeopardize the continued existence of any species proposed for listing or result in the adverse modification of critical habitat proposed to be designated. A conference may involve informal discussions between the Services, the action agency, and the applicant. Following informal conference, the Services issue a conference report containing recommendations for reducing adverse effects. These recommendations are discretionary, because an agency is not prohibited from jeopardizing the continued existence of a proposed species or from adversely modifying proposed critical habitat. However, as soon as a listing action is finalized, the prohibition against jeopardy or adverse modification applies, regardless of the stage of the action.

Module 7: Streamlined Section 7 Consultation Short Course What's the difference between informal and formal consultation? • Informal consultation is an optional process that is designed to help the applicant and the action agency determine whether formal consultation is needed. It includes all discussions, correspondence, etc., between the Services, the action agency, and the applicant, and has no specified timeframe for completion. Federal agencies and the designated non-Federal entity may use this period to work with the Services on project design and conservation actions that would remove all adverse effects and avoid the need for formal consultation. • Formal consultation is a mandatory process for proposed projects that may adversely affect listed species, is initiated in writing by the Federal agency, and concludes with the issuance of a biological opinion by the Services. The Services strongly encourage the use of informal consultation so that projects can be designed with minimal impact to listed species, possibly resulting in a determination of no adverse effect, eliminating the need for formal consultation.

Module 7: Streamlined Section 7 Consultation Short Course Must a Federal agency consult with the Services (i.e., receive concurrence) if it determines: a) no effect; b) beneficial effect; or c) not likely to adversely affect? • A Federal agency is not required to consult with the Services if it determines an action will not affect listed species or critical habitat. • A Federal agency is required to consult if an action "may affect" listed species or designated critical habitat, even if the effects are expected to be beneficial. In many cases, projects with overall beneficial effects still include some aspects that will adversely affect individuals of listed species and such adverse effects require formal consultation. • If an agency determines that its action is not likely to adversely affect listed species or critical habitat, it can request the concurrence of the Services with this determination. If the Services agree, consultation is concluded with a concurrence letter.

Module 7: Streamlined Section 7 Consultation Short Course Does formal consultation have to be completed before an EA or EIS is written? • Biological assessments may be completed prior to the release of the Draft Environmental Impact Statement (DEIS) or the Environmental Assessment (EA). Formal consultation should be initiated prior to or at the time of release of the DEIS or EA. At the time the Final EIS is issued, section 7 consultation should be completed. The Record of Decision for an EIS should address the results of section 7 consultation. The action agency should initiate informal consultation prior to public scoping required for major construction activities as defined by the National Environmental Policy Act.

Module 7: Streamlined Section 7 Consultation Short Course What's the difference between reasonable and prudent alternatives and reasonable and prudent measures? • Reasonable and prudent alternatives are alternative methods of project implementation, offered in a biological opinion reaching a jeopardy or adverse modification conclusion, that would avoid the likelihood of jeopardy to the species or adverse modification of critical habitat. • Reasonable and prudent measures are actions necessary to minimize the impacts of incidental take that is anticipated to result from implementing a project that the Service regarded as not likely to jeopardize the species or adversely modify designated critical habitat.

Module 7: Streamlined Section 7 Consultation Short Course Does a Federal agency have to adhere to the reasonable and prudent alternatives or the reasonable and prudent measures, and what are the consequences if it doesn't? • In both instances, the action agency determines whether and how to proceed with its proposed action. • If a jeopardy opinion containing reasonable and prudent alternative(s) is issued, the action agency may: 1) adopt the reasonable and prudent alternative(s); 2) not undertake the project (e.g., deny the permit); 3) request an exemption from section 7(a)(2); 4) reinitiate consultation based on modification of the action or development of a reasonable and prudent alternative not previously considered; or 5) proceed with the action if it believes, upon review of the biological opinion, that the action satisfies section 7(a)(2). • Regardless of what action the agency chooses, the agency must notify the Service of its final decision.

Module 7: Streamlined Section 7 Consultation Short Course Does a Federal agency have to adhere to the reasonable and prudent alternatives or the reasonable and prudent measures, and what are the consequences if it doesn't? (cont.) • Reasonable and prudent measures and the implementing terms and conditions are actions intended to minimize the impact of incidental take. • Those conditions are conveyed to the action agency in the form of an incidental take statement (ITS), are non-discretionary, and must be undertaken by the agency so that they become binding conditions of any grant or permit issued to an applicant for the exemption in section 7(o)(2) to apply. • If the agency refuses to do so, then it and the applicant must be informed that the protective provision of the ITS may not apply, and both entities could be held responsible for any take that occurs as a result of the action.

Module 7: Streamlined Section 7 Consultation Short Course Who reinitiates formal consultation? • Reinitiation of formal consultation must be requested by the Federal agency or by the Services if: a) the amount or extent of taking specified in the incidental take statement is exceeded; b) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; c) the identified action is subsequently modified in a manner or to an extent that causes an effect to the listed species or critical habitat not previously considered in the biological opinion; or, d) a new species is listed or critical habitat designated that may be affected by the identified action.

Module 7: Streamlined Section 7 Consultation Short Course What constitutes the "best available scientific and commercial information?" • When conducting section 7 consultation, the Services' biologists should use the best scientific and commercial information available. This information may include the results of studies or surveys conducted by the Federal action agency or the designated non-Federal representative, information contained in past biological opinions and biological assessments, status reports and listing rules, including critical habitat designations, recovery plans, and published and unpublished studies done on the species. • However, at times even the best information available may not provide a sufficient basis to predict effects to a species. When this is the case, the Services should work with the action agency and applicant, if appropriate, to develop sufficient information to adequately evaluate the effects of the proposed action and its potential to jeopardize the species or result in adverse modification of designated critical habitat. If it is not possible to develop such information, the Services should use the information that is available and provide the benefit of the doubt to the species when evaluating the potential for jeopardy and adverse modification.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short CourseThe 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

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course Developing Local Level 1 and 2 Team Procedures • Level 1 teams can develop their own operating guidelines that customize meeting protocols, formats for BAs, guidance for effects determinations, field reviews and elevation procedures. • These guidelines should be reviewed and updated, particularly when changes occur in team membership. Thorough documentation and good facilitation of Level 1 team meetings results in efficiencies. • To the extent feasible, Level 1 teams should train alternates within each agency to provide depth in streamlining capability and skills. • Level 1 teams should assign a team lead who has streamlining experience, team-building experience and skills, and collaborative and facilitation skills. The team lead is responsible for Level 1 meeting notes and distributing them to the Level 1 and Level 2 teams. The team lead position can rotate, allowing all team members to serve as the lead.

Module 7: Streamlined Section 7 Consultation Short Course Developing Local Level 1 and 2 Team Procedures (cont.) • All participating agencies should make sufficient resources available to ensure success. Level 1 and Level 2 teams can include administrative support such as a note taker and facilitator. • Level 1 and Level 2 teams should discuss assigning a management liaison position to work with the Level 1 team lead and to help facilitate communication and collaboration. • Level 2 teams should develop operating guidelines that address meeting frequency, format, and periodic joint meetings with the Level 1 team.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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, theyare generally based on Level 1 discussions of possible measures to minimize adverse effects . When requested, the FWS/NMFS will share an early draft BO with the FS/BLM. • 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course 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.

Module 7: Streamlined Section 7 Consultation Short Course Review/Elevation ProcessInformation & Oversight Level 1 Team Regional Technical Team Level 2 Team Regional Executives Interagency Coordinators National Dispute Panel Diagram 1. Illustration of the elevation process

Module 7: Streamlined Section 7 Consultation Short Course Modification of Procedures For Elevated Issues • Level 1 and 2 teams are encouraged to develop local elevation procedures that serve their circumstances in resolving issues quickly and constructively. • Local elevation procedures should address: - formats for written documentation, - joint Level 1 and 2 team discussions, and - time frames for a Level 2 team response.

Module 7: Streamlined Section 7 Consultation Short Course Providing Policy Leadership and Management Support • Level 1 and 2 teams must have adequate support from management staff and line officers to achieve section 7 consultation efficiencies • Recommendations for improved consultation efficiencies include: - Encouraging sharing of staff to assist in drafting BAs, LOCs, and BOs, with each agency retaining full document review and signature authority; - Assigning either NMFS or FWS the lead responsibility in those geographic areas with both listed resident and anadromous fish; - Delegating NMFS signature authority for LOCs to Level 2 representatives, and continuing to pursue signature authority for BOs equal to the FWS; - Providing a writer-editor to finalize BA or BO documents, particularly for time-sensitive consultations, thereby allowing biologists/botanists to focus on analysis and draft documentation.

Module 7: Streamlined Section 7 Consultation Short Course Improving Efficiency and Effectiveness of Consultation Documentation and Completion • A strong foundation of interagency collaboration in early planning and NEPA phases is critical for high priority projects, short timeline projects, and potentially controversial projects. • Open exchange of resource information and full disclosure of all project activities as early as possible can avoid "revisiting" issues later. • By engaging in early planning and coordination while compiling project and species information, Level 1 teams can identify and address issues and make appropriate adjustments while there is flexibility to modify project designs. • Early coordination allows managers to make adjustments to proposed activities during the project design phase to incorporate species’ habitat needs.

Module 7: Streamlined Section 7 Consultation Short Course Complete and Accurate Analysis of Effects • Before initiating section 7 consultation, each project must be sufficiently developed to allow the FS or BLM to accurately assess the potential effects on listed species and critical habitats. • To initiate informal or formal section 7 consultation, the FS or BLM must provide the FWS or NMFS the following information: 1. A description of the action; 2. A description of the specific area that may be affected by the action; 3. A description of listed species or critical habitat that may be affected by the action; 4. A description of the manner in which the action may affect listed species or critical habitat and an analysis of cumulative effects; 5. Relevant reports (e.g. EIS, EA, BA, etc.)

Module 7: Streamlined Section 7 Consultation Short Course Developing Project Design Criteria • Early interagency coordination can be effective when used to develop project design criteria (PDC) that ensure that actions are compatible (at least in part) with the biological/conservation needs of listed species and with the recovery function of critical habitat. • When action agencies adopt effective PDC as part of the proposed action, those projects move more quickly through consultation. Such criteria help identify the projects’ determination of effects (NE, NLAA, LAA) and provide predictability to the procedures used to complete project-level consultations that meet the PDC. • PDC have been developed for categories of actions, such as timber harvest and road maintenance.

Module 7: Streamlined Section 7 Consultation Short Course Programmatic Consultations • Programmatic consultations evaluate the potential for Federal "programs" to affect listed/proposed species and designated/proposed critical habitat. • These programs establish standards, guidelines, or design criteria to which future specific actions must adhere (e.g., Forest Service LRMPs, a multi-year timber, thinning or grazing program, or habitat restoration actions). • Some potential benefits of programmatic consultations include: (1) the opportunity to more efficiently integrate the action agency's 7(a)(1) responsibilities at the program level; (2) a more streamlined consultation process; (3) added predictability for all parties; and (4) a broad scale level of analysis that enhances the ability to evaluate effects on listed species and critical habitat.

Module 7: Streamlined Section 7 Consultation Short Course Maintaining the Administrative Record • Maintaining a complete consultation record may not contribute to the efficiency and effectiveness of the process itself, but it is critical if the information is needed quickly after the consultation is completed. • Attempts to accurately reconstruct past decisions or events can be extremely difficult. Shortcomings of an administrative record are often revealed during FOIA requests or NOI to litigate a project. All elements of a consultation’s administrative record must be documented. • Administrative records include documentation of all meetings, telephone and conference calls , discussions, email messages, written correspondence, faxes, draft documents for important decision points, information sources, and BA and/or BO citations (as listed in the Literature Cited or References section). . • The administrative record encompasses items assembled from the start of early coordination through the issuance of a BO or LOC. • Most administrative records are kept using some chronological order, even if materials are kept with the most recent item filed first.

Module 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course • 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 7: Streamlined Section 7 Consultation Short Course 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 doilearn@geolearning.com or (866) 466-1998.

Module 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course 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 7: Streamlined Section 7 Consultation Short Course 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.

Streamlined Consultation Training Modules