The Draft Alternative Consultation Agreement to Implement the Section 7 Counterpart Regulations

1. The Draft Alternative Consultation Agreement to Implement the Section 7 Counterpart Regulations Prepared for: The Interagency Section 7 Streamlined Consultation Training Summit (March 9 - 10, 2004) Prepared by:Bill LeVere, Director of Bio-Physical Resources, Intermountain Region, FS

2. Caveats • This presentation is based upon the February 12, 2004 Draft of the ACA. • Currently it’s not clear that the FS and BLM are at the same stage in development of an ACA – I’m assuming that both efforts will either come together and a single effort or be very similar.

3. 7 Main Sections of the ACA • Background • Process and Procedures • Area of Implementation and Scope of Application • Personnel to Make NLAA Determinations and Document ESA Compliance • Developing and Maintaining Skills Necessary • Maintaining a List of Fire Plan Projects • Monitoring and Periodic Program Evaluation

4. Background • The Alternative Consultation Agreement (ACA) is being prepared pursuant to the Joint Counterpart ESA Section 7 Consultation Regulations issued on December 8, 2003 to support implementation of the ESA. • The counterpart regulations complement the general consultation regulations by providing an alternative process for completing Section 7 consultations for Federal agency projects that authorize, fund, or carry out actions that support the NFP.

5. Background (continued) • The purpose of the counterpart regulations is to enhance the efficiency and effectiveness of the consultation process under Section 7 of the ESA for NFP projects by providing an optional alternative to the procedures when the project has a NLAA determination. • Implementation of the counterpart regulations and the ACA is expected to maintain the same level of protection for T&E species and designated critical habitat as under normal procedures.

6. Process and Procedures (continued) • The counterpart regulations establish an alternative process for meeting the requirements of Section 7 of the ESA on proposed projects that support the NFP, when the Action Agency determines that the project is NLAA any listed species and/or critical habitat.

7. Process and Procedures (continued) • Fire Plan Projects (FPP) are actions determined by the Action Agencies to be within the scope of the NFP, such as prescribed fire, mechanical fuels treatments (thinning and removal of fuels to prescribed objectives), emergency stabilization, burned area rehabilitation, road maintenance and operation activities, ecosystem restoration, and culvert replacement actions.

8. Process and Procedures (continued) • The counterpart regulations are intended to complement, and in no way replace or conflict with the various consultation tools and processes developed to facilitate Section 7 consultation.

9. Area of Implementation and Scope of Application • The area covered by the ACA is the entirety of the lands managed by the FS and BLM. • All listed threatened, endangered and proposed species and all designated and proposed critical habitat are subject to the ACA. • The ACA is effective upon signing. The counterpart regulations can be used after signing of the ACA, and when appropriate training has been completed. This ACA will remain in effect unless revoked by any party.

10. Personnel to Make NLAA Determinations and Document ESA Compliance • The counterpart regulations may be used by any Action Agency biologist or botanist who is expected to conduct Section 7 effects analyses for proposed actions that are Fire Plan Projects and make determinations of effect under the ESA and has completed the required training. • Responsibility for documenting compliance with the ESA under the counterpart regulations and for ensuring biologists have sufficient training lies with the line officer having decision authority for the project being evaluated.

11. Developing and Maintaining Skills Necessary • An interagency training program is in the process of being developed, and will be delivered via a web-based system. • The training program will include a mutually agreeable Section 7 curriculum developed and approved by NOAA Fisheries and FWS to ensure that the Action Agencies consistently use and apply the standards of review as described in the ESA, its implementing regulations, the Consultation Handbook, and other existing training materials.

12. Developing and Maintaining Skills Necessary (continued) • Field Units will identify those individuals who have completed the appropriate training on the counterpart regulations, and provide the FWS and NOAA Fisheries with a list of the names of these individuals, as well as of any additional personnel who subsequently complete this training. • The subunit that has fulfilled the training requirements must notify the appropriate FWS and NOAA Fisheries Field Office in writing that they will begin implementing the counterpart regulation.

13. Maintaining a List of Fire Plan Projects • Field Units will maintain a running list of NFP projects for which the counterpart consultation regulations were used. • Each unit will annually provide their Regional or State Office and the NMFS and FWS with a list of NFP projects for which the counterpart regulations were used.

14. Monitoring and Periodic Program Evaluation • The monitoring program will be national in scope, with random samples based at the subunit level (Ranger District or Field Office) and completed one year following implementation of the regulation. The monitoring program will be conducted every three years following the first year.

15. Questions? Comments?