Endangered Species Act Counterpart Regulations for National Fire Plan Projects

1. Endangered Species Act Counterpart Regulations for National Fire Plan Projects Bureau of Land Management Forest Service June 9, 2004

2. Summary • Joint Counterpart ESA Section 7 Consultation Regulations was issued in the Federal Register on Dec. 8, 2003. • The BLM Alternative Consultation Agreement (ACA) was signed with FWS and NMFS on March 3, 2004. • The Forest Service ACA also was signed with FWS and NMFS on March 3, 2004. • The FWS, NMFS, FS and BLM worked together to develop and deliver a training module, May 11, 2004.

3. Nine Sections of the Alternative Consultation Agreement • Background • Process and Procedures • Area of Implementation and Scope of Application • Personnel to Make NLAA Determinations and Document ESA Compliance • Developing & Maintaining Skills Necessary • Standards of Project Review • Incorporating New Information • Maintaining a List of Fire Plan Projects • Monitoring and Periodic Program Evaluation

4. Background • To facilitate implementation, Alternative Consultation Agreements (ACA) have been 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 • 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. Area of Implementation and Scope of Application • The ACA covers BLM/FS actions authorized, funded or carried out in support of the NFP. • All listed threatened, endangered and proposed species and all designated and proposed critical habitat are subject to the ACA. • The ACA was effective upon signing. The counterpart regulations can be used when appropriate training has been completed. The ACA’s remain in effect unless revoked by any party.

9. Personnel to Make NLAA Determinations and Document ESA Compliance • The counterpart regulations may be used by any BLM/FS biologist, botanist or ecologist 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 project 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.

10. Developing and Maintaining Skills Necessary • An interagency training program is being developed, and will be delivered via a web-based system. • The training program includes 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.

11. Timeframe for Counterpart Regulations Implementation Feb. 23-27 Team designs training course Mar.-May Web-based training prepared Mar. 3 ACA’s signed Mar. 24 Training/meeting in Phoenix May 11 Web-based training ready Anytime after End users take training and certification exam

12. March 24, 2004 Training and Meetingin Phoenix, AZ -- Audience • Regional and State level action agency and regulatory agency personnel who are responsible for providing technical assistance on regulations • Some BLM and FS end users in SW states were included. • All six agencies participated (BLM, FS, NPS, BIA, FWS, NMFS).

13. March 24, 2004 Training and Meetingin Phoenix, AZ -- Objectives • Explain the roles and responsibilities of the agencies. • Ensure State/Regional Office personnel providing oversight and assistance adequately understand the CR and ACA • Train/Certify end users and line officers attending the Session

14. Web Based ESA Counterpart Regulations Course Goal: To train and certify end users and line officers on ESA counterpart regulations Objective: By completing the interactive modules and given ACA, CR, and Sec. 7 Handbook, end users will be able to implement the counterpart regulations

15. Web Based ESA Counterpart Regulations Course • Module 1: Understand the CR • Module 2: Alternative Consultation Agreement Procedures • Module 3: Standards of Review • Module 4: Development of a Project Administrative Record

16. Module 1: Understand the Counterpart Regulations (CR) • The objective of this module is to allow you to describe the purpose and scope of the counterpart regulations. • The counterpart regulations were developed to improve the consultation process under section 7 of the ESA for National Fire Plan projects.

17. Module 2: ACA Procedures • The objective of this module is to allow you to describe the content, procedures, role and responsibilities outlined in the ACA. • The ACA is the consultation agreement for implementing the counterpart regulations that established the Action Agencies authority to make an NLAA determination without concurrence from the Services.

18. Module 3: Standards of Review • You will know how to apply accepted standards of project review to determine if a National Fire Plan project is Not Likely to Adversely Affect listed species or designated critical habitat. • The standards of review provide the logical basis for determining effects of FPP on ESA listed species and designated critical habitat. This will be necessary to ensure consistency with the Administrative Procedures Act.

19. Module 4: Development of a Project Record • You will demonstrate how the components of a project record are compiled to document the decision-making process for National Fire Plan projects. • A complete project record provides critical documentation of the information used in making a decision on the FPP and evaluating its effects on ESA-listed species and designated critical habitat. It allows the monitoring Team to review all pertinent documentation related to the decision.

20. Developing and Maintaining Skills Necessary (continued) • BLM and FS will identify those individuals who have completed the appropriate training on the counterpart regulations, and provide the national offices of 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. • Subunits that have fulfilled the training requirements must notify the appropriate FWS Office and NOAA Fisheries National Office in writing that they will begin implementing the counterpart regulation.

21. Standard of Project Review BLM and FS will consider: 1. direct and indirect effects of proposed action 2. effects of interrelated or interdependent actions 3. the environmental baseline 4. whether effects are insignificant, discountable, completely beneficial, or adverse 5. best scientific and commercial information available

22. Incorporating New Information • BLM/FS will maintain accurate, updated T&E lists (including proposed species and CH) • FWS/NMFS will notify BLM/FS of newly proposed species or CH • FWS/NMFS will share new information with BLM/FS • BLM/FS will consider significant new information after determinations of effects are made or during actual project implementation under CR

23. 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 State Office with a list of NFP projects for which the counterpart regulations were used. • Each State/Regional Office will provide a consolidated list of NFP projects to national offices of FWS and NMFS. • BLM/FS will document the analysis used in making the NLAA determination in a BA.

24. Monitoring and Periodic Program Evaluation • Purpose of monitoring program is to evaluate whether BLM is making NLAA determinations consistent with best available scientific and commercial information, and is in compliance with ESA. • The monitoring program will be national in scope, with random samples based at the subunit level (Field Office) and completed one year following implementation of the regulation. The monitoring program will be conducted every three years following the first year.

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