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 - An Overview of Streamlined Consultation Procedures for Line Officers and Managers Prepared for The Northwest Interagency ESA Website: www.blm.gov/or/esa

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Introduction and Background • Since 1995, the intent of the Northwest Interagency Streamlined Consultation Process has been: - to make section 7 consultation efficient and effective, and - to further the conservation of listed, proposed and candidate species. • The FS, BLM, FWS and NMFS in the Pacific Northwest worked together to streamline the procedures prescribed by Title 50 CFR 402. • This training module explores how Level 1 and Level 2 teams, the Regional Technical Team (RTT), Interagency Coordinating Subgroup (ICS) and Regional Executives can customize streamlined section 7 consultation to better serve their particular circumstances and needs. • This guidance does not preclude agencies from using more traditional consultation procedures to fulfill the requirements of section 7(a)(2). • All procedures in this module are consistent with the requirements of ESA section 7 and its implementing regulations (50 CFR 402).

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Organizing for Success • A key element of successful streamlined consultations is to develop functional Level 1 and 2 teams that can deal with a wide array of issues and opportunities. • Good working relationships within and between Level 1 and Level 2 teams are essential to successful section 7 consultations. • Effective working relationships take time to establish and maintain.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Dispute Elevation and Resolution Process • Quick resolution of issues is essential to efficient streamlining. • Cooperation and collaboration are primary goals of streamlining, but Level 1 teams may not reach agreement. Should this occur, the issue should be promptly raised through the elevation process. • A constructive balance between "hair-trigger“ elevations versus prolonged questioning and conflict must be achieved for efficient consultations. Each stage of the elevation process should take no more than 15 days. Each agency should be prepared to make each elevation a priority to meet time frames. • Together with the Level 1 team, the Level 2 team can develop local procedures in advance that include timeline responses to elevations and the format for written responses to elevations from the Level 1 team.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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: - Utilizing the Counterpart Regulations for National Fire Plan proposals where all determinations of effect are NLAA; - 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 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Promoting Performance Accountability • To ensure successful streamlining section 7 consultation, oversight responsibilities were assigned to the ICS and the RTT to help promote performance accountability. • The objectives of that interagency oversight are to: (1) recommend that the Regional Executives rescind any requirements no longer needed; (2) examine existing agency tools used for tracking the consultation workload, assess compliance with timelines, monitor areas of concern, and recommend changes in procedures, as needed; (3) identify streamlining teams that operate effectively and acknowledge their success; and (4) identify streamlining teams that are not operating effectively and make recommendations to remedy the situation.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Incorporating by Reference • If a proposed action requiring a BA is identical, or very similar, to a previous action, the FS or BLM may fulfill the BA requirement by incorporating by reference the earlier BA, plus any supporting data pertinent to the consultation. • It may be appropriate for the action agency to reference, or tier to, the informational document(s) provided to complete a forest-wide, resource area-wide, or regional programmatic consultation. • Incorporating by reference requires written certification that: (1) The proposed action involves similar impacts to the same species in the same geographic area; (2) No new species have been listed or proposed or no new critical habitat has been designated or proposed for the action area; and (3) The original BA has been supplemented with any relevant information.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Complete and Accurate Description of the Proposed Action and Action Area • A common factor of prolonged consultations is an incomplete description of the action that continues to change. Changing the project during consultation can complicate and delay the project. • The following considerations can promote consultation efficiency and should be included in the project description: - Known staging areas, refueling sites, and "satellite facilities”, along with any contingency plans that avoid or minimize risk; - Project timing and duration, - Accurate quantities of project elements and potential project area or requirements for implementation (distances, acreages, machinery needed, etc.); and - Constraints or limits placed on project size or capacity that are self-imposed or required by others, including BMPs.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Complete and Accurate Lists of Species and Critical Habitats Likely to Occur in the Action Area • Early interagency coordination and information-sharing ensures a complete and accurate species/critical habitat list pertaining to the action area for the proposed action. • Quarterly updates of species/critical habitat lists are recommended.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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 3: Conducting Effective and Efficient Streamlined Section 7 Consultation • During section 7 consultation the FWS and NMFS must: 1. Review all relevant information provided by the action agency or is otherwise available; 2. Evaluate the current status of the listed and proposed resources to be affected (including an evaluation of the threats facing these listed and proposed resources), and the environmental baseline within the action area; 3. Evaluate the effects of the proposed action and cumulative effects on the listed and proposed resources; 4. Use the above information to determine the effects of the action on the conservation status of the listed species (i.e., evaluate the potential for the action to result in jeopardy or adverse modification). The regulations also direct the FWS and NMFS to discuss this analysis with the action agency.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Project Batching • “Project batching” can be an effective streamlining tool for informal consultation in cases where none of the proposed projects are LAA listed and proposed resources. • Action agencies may group, or batch, a series of similar projects that may be implemented over a multi-year time period, into one BA, and request consultation. • The FS or BLM may batch a broad range of activity types proposed within a limited geographic area, typically a watershed. • The former approach is particularly effective in addressing projects whose effects are predictably similar and whose mitigation and conservation measures are repetitive; the latter approach lends itself to an analysis demonstrating how a comprehensive suite of actions is likely to affect species or critical habitat.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Examples of Project Design Criteria • Planting native trees and shrubs on all raw or disturbed areas; • Halting all construction activities during heavy precipitation events; • Implementing a spill prevention, containment, and control plan and providing an emergency spill containment kit on site; no fuel storage on site; • Inspecting and cleaning all equipment daily for fuel and lubricant leaks; • Installing erosion control fabric over hydro mulched streambank areas; • Hydro mulching all disturbed areas with native grass seed ; • Refueling, repairing, and maintaining all equipment at least 150 feet from live water; • Conduct instream work during low flow periods; • Installing sedge mats below the low flow elevation to provide rapid establishment of vegetation; and • Installing clean, angular, and durable rock riprap free of fine materials

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Programmatic Consultations (cont.) Batched Programmatic Consultation Approach: • The "batched" approach is used when the action agency groups, or batches, a series of proposed projects into one BA • If batching contains LAA projects, the Services produce a single BO. • If all of the proposed projects are NLAA, the Services can prepare a single LOC. • The design of each project is sufficiently developed to accurately assess its potential effects and anticipated take, if any. The effects of each project are evaluated both individually and cumulatively within one document.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Programmatic Consultations (cont.) Appended Programmatic Consultation Approach: • This is a two-stage consultation process. - The first stage involves the development of a programmatic BA and subsequent BO(or LOC if no adverse effects) that analyzes the potential landscape-level effects that may result from implementing the action agency's design criteria. - The second stage involves the development of appropriate project-specific documentation that addresses the specific effects of the individual projects proposed under the action agency's program.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation Programmatic Consultations (cont.) Tiered Programmatic Consultation Approach: a two-stage consultation • The first stage BO or LOC evaluates the landscape-level effects of identifying design criteria for future actions. The second stage addresses the project-specific effects developed through applying the design criteria. • The difference between approaches is the manner in which they achieve these purposes. Under the Tiered approach, two complete BOs or LOCs are completed for each stage, with the second-stage documents "tiering" to the first-stage document by incorporating by reference. Each action has its own individual consultation document supported by the programmatic document. • Caution: If the goal is to streamline consultation, it is important to understand how effective a program-level consultation might be achieving this goal. A program-level consultation may be prudent if the likely number of project-level actions is high. If there will be only a few projects, individual project consultations may be more efficient.

Module 3: Conducting Effective and Efficient Streamlined Section 7 Consultation 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.

Streamlined Consultation Training Modules