Presentation on theme: "Streamlined Consultation Training Modules Module #1 - Frequently Asked Questions on the Section 7 Consultation Process Module #2 - An Overview of Streamlined."— Presentation transcript:
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
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.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Section 7 consultation involves the following steps: The Federal agency must determine if listed species are present within the action area, usually by contacting the appropriate local Service office. The Service responds to the request by providing a list of species that are known to occur or may occur in the vicinity. If no listed or proposed species are known to occur in the vicinity, no further consultation is required unless 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), it can request the concurrence of the Services with this determination. If the Services agree, consultation is concluded with a concurrence letter and no further consultation is required.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Section 7 consultation involves the following steps (continued) 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 6: An Overview of Streamlined Consultation for Line Officers and Managers Standard time frames involved in conventional section 7 consultation 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 6: An Overview of Streamlined Consultation for Line Officers and Managers Conference applies to Federal actions that may affect species proposed for listing under ESA A conference may involve informal discussions between the Services, the action agency, and an 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, if a proposed listing action becomes final, the prohibition against jeopardy or adverse modification applies, regardless of the stage of the action.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Informal and Formal Consultation applies to Federal actions that may affect species listed under ESA As described in CFR 402, informal section 7 consultation is designed to help the action agency determine whether formal consultation is needed and has no specified timeframe for completion. 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. 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. Formal consultation is applied to 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.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Compliance with section 7 ESA and NEPA should be seamless The action agency should initiate informal consultation prior to public scoping required for major construction activities as defined by the National Environmental Policy Act. 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.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Reinitiation of formal consultation is sometimes needed 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 6: An Overview of Streamlined Consultation for Line Officers and Managers The Purpose of Streamlined Section 7 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.
The following comparisons help distinguish streamlined section 7 consultation from more conventional applications of the section 7 implementing regulations. Streamlined Section 7 ConsultationConventional 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 6: An Overview of Streamlined Consultation for Line Officers and Managers 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 support development of BAs and review adequacy of draft BAs and information supporting effects determinations. Level 1 teams 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 6: An Overview of Streamlined Consultation for Line Officers and Managers Level 2 Interagency Teams Level 2 teams are comprised of staff supervisors and line officers who ensure Level 1 teams successfully accomplish their duties. Level 2 teams ensure that Level 1 teams have sufficient resources and time to complete consultations and identify time frames and work priorities for consultations conducted by the Level 1 team. Level 2 teams oversee and monitor performance of Level 1 teams and make adjustments in workload or priorities as needed. Level 2 teams resolve disputed issues involving effects determinations, information needs for BAs, or other matters elevated by the Level 1 team and elevate unresolved issues to the Regional Executives with a cc to the Interagency Coordinating Subgroup (ICS) chair.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers 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. A management liaison attends Level 1 meetings to promote cooperation and collaboration to improve the effectiveness and efficiency of streamlining without swaying the outcome of any consultation A management liaison observes Level 1 team dynamics and performance, is a resource to help resolve Level 1 team issues, and works with the Level 1 team leader to alert the Level 2 team when prescribed timelines are not being met and why.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers 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 RTT provides oversight and technical assistance on the consultation streamlining process and maintains, updates, or revises streamlining procedures, training materials and information on the streamlining website. The RTT serves 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. The RTT facilitates consistency and communication among teams and across regions/states and provides support to Level 1 and 2 teams upon request from the Regional Executives and the ICS to help resolve technical questions without formal elevation when possible.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Forest Supervisors and District Rangers, BLM Resource Area and District Managers, FWS/NMFS Staff Biologists and Non-consulting Resource Specialists: 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. 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 are still integral to the success of streamlining. Biologists not serving as Level 1 team members and other specialists can often provide additional critical information.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Primary Phases of the Streamlined Consultation Process Phase 1 involves early discussions among the Level 1 team about the proposed action, listed species and critical habitat, their status in the action area, best available information, potential effects, and preliminary effect determinations. Phase 2 involves completion of the BA by the Level 1 team based on information developed during Phase 1. Once the Level 1 team agrees that the final BA is complete, the action agency submits a written request to FWS/NMFS for concurrence on NLAA determinations and requests initiation of formal consultation for LAA determinations. Phase 3 involves the preparation of Letters of Concurrence (LOCs) and Biological Opinions (BOs) that can involve Level 1 team collaboration in writing, reviewing and editing but are the responsibility of FWS and NMFS to issue. 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.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Timeframes for streamlined section 7 consultations Under streamlined section 7 consultation, 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. 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 6: An Overview of Streamlined Consultation for Line Officers and Managers Dispute Elevation and Resolution Process Quick resolution of issues is essential to streamlining and elevation of issues is prudent when resolution is not progressing. The Level 1 team should make every attempt to resolve the issue including seeking guidance from the RTT prior to elevation to the Level 2 team. Field Managers, District Rangers or Field Supervisors may also elevate issues in coordination with the Level 1 team. 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 RTT or ICS staff to assist in developing a response 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.
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Review/Elevation Process Information & Oversight Level 1 Team Level 2 Team Interagency Coordinators Regional Technical Team Regional Executives National Dispute Panel Diagram 1. Illustration of the elevation process
Module 6: An Overview of Streamlined Consultation for Line Officers and Managers Improving Efficiency and Effectiveness of Consultation by Providing Leadership and Management Support 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. Early coordination allows managers to make adjustments to proposed activities during the project design phase to incorporate species’ habitat needs. Open exchange of resource information and full disclosure of all project activities as early as possible can avoid "revisiting" issues later. Level 1 and 2 teams must have adequate support from management staff and line officers to achieve section 7 consultation efficiencies. 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.