+----------------+-------------------+----------+----------------------+
| **United       | **United States   | **United | **United States      |
| States         | Department of     | States   | Department of        |
| Department of  | Commerce**        | De       | Interior**           |
| Agriculture**  |                   | partment |                      |
|                | **National Marine | of       | **Fish and**         |
| **Forest       | Fisheries         | In       |                      |
| Service**      | Service**         | terior** | **Wildlife Service** |
|                |                   |          |                      |
|                |                   | **Bureau |                      |
|                |                   | of**     |                      |
|                |                   |          |                      |
|                |                   | **Land   |                      |
|                |                   | Mana     |                      |
|                |                   | gement** |                      |
+----------------+-------------------+----------+----------------------+
|                |                   |          |                      |
+----------------+-------------------+----------+----------------------+
| **Reply To:**  |                   | *        |                      |
| 6840(BLM-OR    |                   | *Date:** |                      |
| 931)P/2670(FS) |                   | July 27, |                      |
|                |                   | 1999     |                      |
+----------------+-------------------+----------+----------------------+

+-------+--------------------------------------------------------------+
| *     | **EMS TRANSMISSION**                                         |
| *FS/N |                                                              |
| MFS/F | **BLM‑Information Bulletin No. OR‑99‑276**                   |
| WS-Me |                                                              |
| moran |                                                              |
| dum** |                                                              |
+-------+--------------------------------------------------------------+
| **    | USDA Forest Service Supervisors (Regions 1,4,5,6); USDC      |
| To:** | National Marine Fisheries Service Project Managers           |
|       | (Northwest, Southwest); USDI Bureau of Land Management       |
|       | District/Field Managers (OR/WA, ID, CA, and MT); USDI Fish   |
|       | and Wildlife Service Field Supervisors (Regions 1,6)         |
+-------+--------------------------------------------------------------+
| **    | Streamlined Consultation Procedures for Section 7 of the     |
| Subje | Endangered Species Act (ESA) July, 1999                      |
| ct:** |                                                              |
+-------+--------------------------------------------------------------+

Attached is the revision of the interagency streamlined consultation
procedures that were originally signed by the regional executives of the
Forest Service, Bureau of Land Management, National Marine Fisheries
Service, and Fish and Wildlife Service in California, Oregon,
Washington, and Idaho on May 31, 1995 (attachment 1 to the procedures).
This revision is the result of recent input and application by field and
regional staff, workshops held in Oregon and Idaho, and comments from a
formal questionnaire completed by Level 1 and 2 teams.

Overall, this revision continues the intent, process, and direction of
the initial 1995 procedures and the 1997 revision. Reasons for the
changes include: clarification of new information about Level 1 team
operations and their involvement in early planning; Level 2 team roles
and responsibilities; the elevation process; applicants; non-team staff
involvement; aquatic consultations; Secretarial Order on tribal rights
and ESA; the Clean Water Act and ESA; and land exchange consultations.
The document has also been changed to a manual format to facilitate
future revisions by sections.

To enhance information sharing and further improve the streamlining
process, teams are encouraged to submit brief writeups on innovative and
prototype consultation techniques or documents, effective approaches,
and resolution of technical or process issues when they send in their
quarterly report data (see Section II.D of the procedures document). In
addition, corrections to the team lists should also be sent in with the
quarterly report data. The information will be compiled and attached to
the Quarterly Streamlined Consultation Summary Report that is
distributed to the agencies.

We recognize the need to vary application of these procedures by the
Level 1 and 2 teams. The flexible and adaptive aspect of the procedures
allows for innovation to enhance its implementation and our ability to
address area-specific needs. Of significance is the increased
interagency cooperation and understanding among our staffs at all levels
as a result of this proactive and collaborative approach.

This 1999 version of the procedures will be in effect until further
notice. It applies to areas of the Northwest Forest Plan and the
Interior Columbia Basin Ecosystem Management Project. As future needs
are identifies, it will be updated. Please contact your respective
Regional Technical Team members or Interagency Coordinators for
questions or comments.

+-----------------------------------+-----------------------------------+
| /s/ Robert J. Devlin (For)        | /s/ William L. Bradley (For)      |
|                                   |                                   |
| Nancy Graybeal                    | Elaine Y. Zielinski               |
|                                   |                                   |
| Acting Regional Forester, Region  | State Director, OR/WA             |
| 6                                 |                                   |
|                                   | USDI Bureau of Land Management    |
| USDA Forest Service               |                                   |
+-----------------------------------+-----------------------------------+
| /s/ Kathleen A. McAllister        | /s/ J. David Brunner (For)        |
|                                   |                                   |
| Dale Bosworth                     | Martha Hahn                       |
|                                   |                                   |
| Regional Forester, Region 1       | State Director, ID                |
|                                   |                                   |
| USDA Forest Service               | USDI Bureau of Land Management    |
+-----------------------------------+-----------------------------------+
| /s/ Jack G. Troyer (For)          | /s/ Al Wright                     |
|                                   |                                   |
| Jack Blackwell                    | Alfred W. Wright [1]{.underline}/ |
|                                   |                                   |
| Regional Forester, Region 4       | Acting State Director, CA         |
|                                   |                                   |
| USDA Forest Service               | USDI Bureau of Land Management    |
+-----------------------------------+-----------------------------------+
| /s/ Bradley B. Powell             | /s/ Larry E. Hamilton             |
|                                   |                                   |
| Bradley B. Powell                 | Larry E. Hamilton                 |
|                                   | [2]{.underline}/                  |
| Acting Regional Forester, Region  |                                   |
| 5                                 | State Director, MT                |
|                                   |                                   |
| USDA Forest Service               | USDI Bureau of Land Management    |
+-----------------------------------+-----------------------------------+
| /s/ William Stelle Jr             | /s/ Thomas J. Dwyer (For)         |
|                                   |                                   |
| William Stelle, Jr.               | Anne Badgley                      |
|                                   |                                   |
| Regional Administrator, Northwest | Regional Director, Region 1       |
|                                   |                                   |
| USDC National Marine Fisheries    | USDI Fish and Wildlife Service    |
| Service                           |                                   |
+-----------------------------------+-----------------------------------+
| /s/ James N. Lecky (For)          | /s/ Ralph O. Morgenweck           |
|                                   |                                   |
| Rodney R. McInnis                 | Ralph Morgenweck [3]{.underline}/ |
|                                   |                                   |
| Regional Administrator, Southwest | Regional Director, Region 6       |
|                                   |                                   |
| USDC National Marine Fisheries    | USDI Fish and Wildlife Service    |
| Service                           |                                   |
+-----------------------------------+-----------------------------------+
| /s/ M. J. Spear                   |                                   |
|                                   |                                   |
| Michael J. Spear                  |                                   |
|                                   |                                   |
| California/Nevada Operations      |                                   |
| Manager                           |                                   |
|                                   |                                   |
| USDI Fish and Wildlife Service    |                                   |
+-----------------------------------+-----------------------------------+

1/ For public lands managed by Bureau of Land Management in the State of
California, this direction will only apply to Section 7 consultations of
the NORCAL Field Offices (Alturas, Arcata, Eagle Lake, Redding,
Surprise, and Ukiah).

2/ For public lands managed by Bureau of Land Management in the State of
Montana, this direction will apply only to Section 7 consultations of
the Missoula Field Office.

3/ ADue to staff limitations, the FWS in MT is not able to implement the
consultation direction outlined in the streamlining procedures in its
entirety. FWS Region 6 staff in MT are participating in the Level 1 and
2 team approach with their FS and BLM counterparts, but are unable to
consistently meet the consultation timelines specific in the
procedures.@

+---+------------------------------------------------------------------+
| 2 |                                                                  |
| A |                                                                  |
| t |                                                                  |
| t |                                                                  |
| a |                                                                  |
| c |                                                                  |
| h |                                                                  |
| m |                                                                  |
| e |                                                                  |
| n |                                                                  |
| t |                                                                  |
| s |                                                                  |
| ( |                                                                  |
| u |                                                                  |
| n |                                                                  |
| d |                                                                  |
| e |                                                                  |
| r |                                                                  |
| s |                                                                  |
| e |                                                                  |
| p |                                                                  |
| a |                                                                  |
| r |                                                                  |
| a |                                                                  |
| t |                                                                  |
| e |                                                                  |
| c |                                                                  |
| o |                                                                  |
| v |                                                                  |
| e |                                                                  |
| r |                                                                  |
| ) |                                                                  |
+---+------------------------------------------------------------------+
|   | 1 - July, 1999 Streamlined Consul. Procedures for Section 7 of   |
|   | the ESA ( 79 pp)                                                 |
|   |                                                                  |
|   | 2 - Streamlining Questionnaire Summary ( 11 pp)                  |
+---+------------------------------------------------------------------+

+-----------------------------------+-----------------------------------+
| [BLM Distribution]{.underline}    |                                   |
|                                   |                                   |
| WO-230 (Room 204 LS) -1           |                                   |
+-----------------------------------+-----------------------------------+

931:HILL:sa:7/7/99:x6068:10116r

Authenticated By

**Streamlined Consultation Procedures**

**for Section 7 of the Endangered Species Act**

**July 1999**

> Sect.
>
> [Page]{.underline} [Date]{.underline}

**I. INTRODUCTION, PURPOSE, AND PROCESS**

Purpose I-1 7/27/99

Streamlined Consultation Process I-2 7/27/99

> Phase 1 - Review of preliminary determinations of effect and
>
> Preliminary BA documents
>
> Phase 2 - Preparation of final BAs by the action agencies
>
> Phase 3 - Preparation of BOs or concurrence letters by regulatory

agencies

> Informal Consultation/Conference I-5 7/27/99
>
> Formal Consultation/Conference I-5 7/27/99

Conclusion I-6 7/27/99

**Q&As - Streamlined Section 7 Consultation**

**II. GENERAL QUESTIONS AND ANSWERS**

> A. Description of Streamlined Consultation Levels of Teams II-A-1
> 7/27/99

B. Team Operations II-B-1 7/27/99

> C. Completion Times for Consultation II-C-1 7/27/99

D. Reporting on the Streamlined Consultation Process II-D-1 7/27/99

> E. Early Planning and the ESA II-E-1 7/27/99
>
> F. Information Needs and Approaches for Consultation II-F-1 7/27/99
>
> G. Elevation of Issues II-G-1 7/27/99
>
> H. Role of Applicants II-H-1 7/27/99

**III. GUIDANCE SPECIFIC TO AREAS COVERED BY THE NFP**

> A. Land Allocation Specific Information III-A-1 7/27/99
>
> B. Disturbance and Seasonal Restrictions III-B-1 7/27/99
>
> C. Critical Habitat Issues III-C-1 7/27/99

**IV. GUIDANCE SPECIFIC TO AQUATIC SPECIES CONSULTATION**

> A. ACS and the Application of Matrices to NFP Anadromous

Consultations IV-A-1 7/27/99

B. Bull Trout Consultations IV-B-1 7/27/99

> C. Essential Fish Habitat and the Magnuson-Stevens Act IV-C-1 7/27/99

**V. GUIDANCE SPECIFIC TO OTHER ORDERS, ACTS, OR POLICIES**

> A. Access V-A-1 7/27/99
>
> B. Secretarial Order 3206 on American Indian Tribal Rights,
>
> Federal-Tribal Trust Responsibilities, and the ESA V-B-1 7/27/99
>
> C. Clean Water Act and ESA Consultation V-C-1 7/27/99

**ATTACHMENTS**

1\. May 31, 1995, letter signed by Regional Executives - Streamlining
Consultation Procedures Under Section 7 of the ESA

2\. Updated 1999 List of Personnel assigned to Level 1, Level 2,
Regional Technical Teams, and Interagency Coordinators

3\. Streamlined Consultation Reporting Form

4\. May 16, 1996, Guidelines to Streamline ESA Consultation for Access
Across Federal Lands - Addendum to the 5/31/95 Streamlining Consultation
Procedures Under Section 7 of the ESA

5\. (a) Example of Optional Outline for Level 1 Action or Issue
Elevation

> \(b\) Example of Optional Outline for Level 2 Response to Level 1
> Elevation
>
> \(c\) Example of Optional Outline for Level 2 Team Elevation to
> Regional Executive

Team

6.  Revision Process for Streamlined Consultation Procedures Document
    (pending)

**NOTE: The procedures can be revised on a section basis (e.g., II.A,
III.C, IV.C). The sections are formatted such that they can be changed
individually and re-inserted into the document.**

**Acronyms**

> ACS Aquatic Conservation Strategy
>
> BA Biological Assessment
>
> BLM Bureau of Land Management
>
> BO Biological Opinion
>
> CWA Clean Water Act
>
> DOC Department of Commerce
>
> DOI Department of the Interior
>
> EA Environmental Assessment
>
> EFH Essential Fish Habitat
>
> EPA Environmental Protection Agency
>
> ESA Endangered Species Act
>
> FMC Fishery Management Council
>
> FS Forest Service
>
> FWS Fish and Wildlife Service
>
> IC Interagency Coordinator
>
> IDT Interdisciplinary Team
>
> INFISH Inland Native Fish Strategy
>
> LAA Likely to Adversely Affect
>
> LRMP Land and Resource Management Plan (FS)
>
> LSR Late-Successional Reserve
>
> MOA Memorandum of Agreement
>
> MSFCMA Magnuson-Stevens Fishery Conservation & Mgmt. Act
>
> NE No Effect
>
> NEPA National Environmental Policy Act
>
> NFMA National Forest Management Act
>
> NFP Northwest Forest Plan
>
> NLAA Not Likely to Adversely Affect
>
> NMFS National Marine Fisheries Service
>
> NPDES National Pollutant Discharge Elimination System
>
> NSO Northern Spotted Owl
>
> PACFISH Interim Strategies for Managing Anadromous Fish-producing
>
> Watersheds in Eastern Oregon and Washington, Idaho, and Portions of
> California
>
> ROD Record of Decision
>
> RMP Resource Management Plan (BLM)
>
> RTT Regional Technical Team
>
> S&G Standard and Guideline

**Streamlined Consultation**[^1] **Procedures**

**for Section 7 of the Endangered Species Act**

**\-- July 1999 Document \--**

**I. INTRODUCTION, PURPOSE, AND PROCESS**

In 1995, four federal agencies \[Forest Service (FS), Bureau of Land
Management (BLM), Fish and Wildlife Service (FWS), and the National
Marine Fisheries Service (NMFS)\] initiated a process to streamline and
improve efficiency of the Endangered Species Act (ESA) Section 7
process. This document is a revision of the February 26, 1997,
streamlined consultation procedures developed to implement the May 31,
1995, streamlined consultation direction (Attachment 1) signed by the
Regional Executives of FS, BLM, FWS, and NMFS. The procedures are
consistent with the direction in the March 8, 1995, agreement by the
national directors of these agencies.

Until further notice, this revised version is to be used by interagency
staff to consult on programs or actions; it will continue to be updated
as needed. This revision is based on input from staff and field-level
personnel and is intended to build on their knowledge and experience. To
reduce reiteration, cross references are made to related sections of the
document.

***Purpose***

The overall purpose of the streamlined consultation procedures is
similar to that described for early consultation in 50 CFR \' 402.11:
Ato reduce the likelihood of conflicts between listed species or
critical habitat and proposed actions.@

The regulatory and action agencies can assume that most proposed actions
will not jeopardize listed species if these actions are consistent with
the guidance that has undergone Section 7 consultation such as the
Northwest Forest Plan (NFP), Land and Resource Management Plans (LRMPs),
Resource Management Plans (RMPs), Inland Native Fish Strategy (INFISH),
Interim Strategies for Managing Anadromous Fish-producing Watersheds in
Eastern Oregon and Washington, Idaho, and Portions of California
(PACFISH), or the other applicable management strategies. Consistency
with these standards and guidelines (S&Gs) and their respective
Biological Opinions (BOs) is the foundation for this streamlined
process.

The intent of streamlined consultation procedures is to:

-   Further conservation of listed and proposed species.

-   Efficiently conclude consultation on actions that comply with
    management plans and programmatic consultations.

-   Use interagency teams to review the adequacy of Biological
    Assessments (BAs) and effects determinations and develop the
    framework for BOs.

Early planning is key to the success of the streamlining process. This
includes interagency participation in initial stages of planning,
project/action design meetings \[such as interdisciplinary team (IDT)
meetings\], preliminary effects determinations, and preparation of
preliminary BA documents. Regulatory agency personnel are expected to
participate to the extent possible in the early planning process to help
address concerns with listed species (see Question 1 in Section II.E).
Those individuals involved with the IDTs may or may not be the same
staff as Level 1 regulatory agency team members. If these individuals
are not Level 1 team members, regulatory agency staff working with the
IDTs should communicate regularly with their Level 1 team members.

***Streamlined Consultation Process***

A Level 1 team is an interagency group of field staff with a variety of
expertise and agency responsibility. The team will communicate
regularly. They will meet as needed to review action plans, BAs, and
draft BOs, as well as an ad hoc basis if needed for urgent or unforeseen
high priority actions. The goal of this process is to produce adequate
BAs that will facilitate and expedite issuance of a BO or concurrence
letter.

The streamlined consultation process involves three phases:

[Phase 1]{.underline} - Review of preliminary determinations of effect
and preliminary BA[^2] documents.

[Phase 2]{.underline} - Preparation of final BAs by the action agencies.

[Phase 3]{.underline} - Preparation of BOs or concurrence letters by the
regulatory agencies.

**Phase 1 - [Review of preliminary determinations of effect and
preliminary BA documents]{.underline}**

The role of the Level 1 team in Phase 1 is to:

-   **Review project/action design and preliminary effects
    determinations.** As described above, **all actions proposed by the
    action agencies and brought to the Level 1 team for Section 7
    consultation will be consistent with the appropriate management
    plans** including NFP, PACFISH, INFISH, existing FS LRMPs or BLM
    RMPs and earlier programmatic consultations where applicable (see
    Question 5 in Section II.F). Actions inconsistent with pertinent
    management plans and BOs may not be a part of the streamlining
    process but will proceed under timeframes prescribed in 50 CFR
    Part 402. Level 1 teams are not intended to be compliance review
    bodies (see Question 5 in Section II.F). **The key compliance issue
    for the Level 1 team is the extent to which potential noncompliance
    may affect the species under consultation.** It is the
    responsibility of the action agency to ensure that all actions are
    consistent with management plans and programmatic consultations
    relevant to the species and critical habitats under consultation.

-   **Review the current status of listed, proposed, and candidate
    species in the action planning area.** The action review will focus
    on listed and proposed species. To the extent possible, candidate
    species will be considered (see Question 4 in Section II.F).

-   **Organize actions by effect determinations to facilitate Phase 2.**
    Level 1 teams need only review \"may affect\" actions (see Questions
    2 and 3 in Section II.F). Although some preliminary determinations
    may change based on the review of the Level 1 team, the majority of
    Phase 1 effect determinations are expected to remain consistent
    throughout the streamlining process because of early interagency
    planning at the field level.

-   **Identify the consultation information needed for each action,
    action batch, or program of activities.** In the past, much
    consultation time was spent resolving incomplete BAs and requests by
    the regulatory agencies for more information. This information
    transfer added weeks or months to conclusion of a consultation. The
    purpose of proactive Level 1 communication is to eliminate this
    inefficiency. Through the early planning process, the action agency
    should have already developed a draft BA or Environmental Assessment
    (EA) to be reviewed and built upon during the streamlined
    consultation process. The desired outcome of Level 1 review is that
    the team agree by consensus on the information included in the final
    BA.

-   **Involve the Level 2 team when one or more of the following
    situations exist:**

-   **Issues not resolvable by the Level 1 team arise about:**

>  Information needed to complete a BA and consultation on an action.
>
>  Determinations of effect or incidental take minimization measures
> for an action.
>
>  Whether an action is consistent with the relevant guidance.
>
>  Decision space available for developing proposed actions.

-   **Direction is needed concerning consultation timeframes and
    workload priorities.**

-   **Guidance is needed on feasible mitigation or incidental take
    minimization measures and legal, policy, or managerial
    constraints.**

-   **A briefing of pending or ongoing consultations is desirable.**

> See Question 1 in Section II.G for details about elevating issues for
> resolution.

**Phase 2 - [Preparation of final BAs by the action
agencies]{.underline}**

In Phase 2, the action agencies prepare a final BA based on the effects
determinations and information needs identified at the conclusion of
Phase 1. **A complete BA, agreed on by the Level 1 team, is necessary to
conclude informal consultation/conference within 30 days and formal
consultations/conferences within 60 days (calendar days) (see Question 1
in Section II.C and Question 1 in Section II.F).** Level 1 team members
continue to work together to further refine information needs largely
identified during Phase 1. The interactions of the regulatory and action
agency personnel in Level 1 teams should lead to identifying and
including only that information required to render a BO. Other
documents, such as previous BAs and pertinent watershed analyses, should
be tiered to or referenced to reduce paperwork and expedite the process.
These documents can be appended to the BA.

Listed below are Section 7 effects determinations for actions and
general steps to follow to complete streamlined consultation.

*No Effect (NE): No Section 7 consultation required.*

-   The action agency documents ANE@ determinations as part of normal
    environmental review procedures. No consultation is necessary.

-   Level 1 team review or regulatory agency technical assistance may be
    requested by the action agency when the distinction between \"NE\"
    and \"may affect\" is unclear.

*Not Likely to Adversely Affect (NLAA): Informal consultation required*.

-   Information needs for regulatory agency concurrence should be
    identified, to the greatest possible extent, during Phase 1. The
    action agency should receive preliminary agreement from the
    regulatory agency during Phase 1 prior to making a written request
    for concurrence (see Question 3 in Section II.F).

-   The action agency prepares a final BA with a written request to the
    regulatory agency for concurrence of NLAA determination. Written
    requests for a concurrence letter should accompany the BA and
    reference results of Level 1 team meetings. There will be fewer
    information needs for actions that are fully consistent with the
    above referenced management plans and deemed NLAA than required for
    LAA actions.

*Likely to Adversely Affect (LAA): Formal consultation required.*

-   The action agency will complete a BA based on issues and information
    needs raised by the Level 1 team in Phase 1. This assessment may
    incorporate National Environmental Policy Act (NEPA) documents.

-   The action agency will provide a draft BA to the Level 1 team for
    review and preliminary acceptance of the information and effect
    determinations. **The objective is to ensure that the BA is complete
    and will not result in additional requests for information after
    final submission.**

-   The action agency will submit the final BA with a written request
    for consultation and reference to results of Level 1 team meetings.
    An electronic copy of the final BA should be submitted to facilitate
    regulatory agency response.

-   Because of the early Level 1 coordination, it is expected that BAs
    will be complete when submitted to the regulatory agency. **The
    regulatory agency will review the consultation package for adequacy
    within two weeks of receipt and, if inadequate, notify the action
    agency in writing that the 60-day timeframe has not started.** The
    notification will identify the information needed to correct the
    inadequacy. If the action agency is not notified of an incomplete BA
    within two weeks, it will be assumed the document is complete and
    that the 60-day period started when the BA was submitted.

**Phase 3 - [Preparation of BOs or concurrence letters by regulatory
agencies]{.underline}**

For regulatory agencies, the Level 1 team member will be the official
contact person for actions submitted for consultation. This person will
be responsible for identifying and clarifying any information needs
additional to Phases 1 and 2, and for carrying the action through the
regulatory agency=s portion of the consultation process in a timely
manner.

***Informal Consultation/Conference***

The regulatory agency will send a concurrence letter within 30 days of
receipt of a completed BA.

***Formal Consultation/Conference***

The regulatory agency will prepare a BO/Conference Opinion within 60
days of receipt of a complete BA. The regulatory agency retains
statutory responsibility to develop reasonable and prudent measures and
terms and conditions to avoid or minimize incidental take. However, such
requirements are expected to be generally based on previous Level 1 team
discussions of possible measures to minimize adverse effects to listed
species. When requested, the regulatory agency will share an early draft
BO (to avoid inaccuracies, questions, and surprises) with the action
agencies for their consideration prior to issuance.

***Conclusion***

The streamlined consultation process is intended to contribute to the
goal of making Section 7 consultation more efficient and effective. The
process will be updated as new information and issues develop.
Participants are encouraged to be innovative in their solutions and
approaches to the streamlining process and ESA consultation.

**Questions and Answers - Streamlined**

**Section 7 Consultation**

**II. GENERAL QUESTIONS AND ANSWERS**

***A. Description of Streamlined Consultation Levels of Teams***

**1. *What is the function of Level 1 teams?***

The Level 1 teams are the core component of the streamlined consultation
process. Level 1 teams are composed of biologists and botanists
designated by their respective agencies as team members (see Question 2
in Section II.B) whose role is to assist land management agencies in
designing programs and activities to minimize adverse impacts to listed
and proposed species. The Level 1 teams are intended to function as a
team. Findings must be by consensus. All potentially contentious issues
are expected to be aired at this level, and most or all will be resolved
before elevation is necessary (see Section II.G). General duties of
Level 1 teams:

 Identify information needs for the BA.

 Recommend scale of BA (see Question 7 in Section II.F).

 Review adequacy of BAs and effects determinations and develop
framework for consultation.

 Review action agency findings for consistency (relative to listed and
proposed species) with existing management plans and guidance and/or
programmatic consultations (see Question 5 in Section II.F).

 Recommend process to sort, batch, and prioritize actions.

 Report consultation progress (see Section II.D).

 Serve as advisors to Level 2 teams and other line officers; and
elevate issues as necessary (see Question 1 in Section II.G).

Personnel assigned to Level 1 teams are listed in Attachment 2.

**2. *What is the function of Level 2 teams?***

Level 2 teams are composed of field unit line officers or staff
supervisors. The Level 2 teams will:

 Ensure that Level 1 teams have adequate resources and time to complete
their duties as described in this document.

 Identify timeframes and priorities for consultation efforts.

 Monitor performance of Level 1 teams (e.g., by attending Level 1
meetings).

 Resolve disputed issues involving effects determinations, information
needs for BAs, and compliance with management plans and/or programmatic
consultations (see Question 1 in Section II.G).

 Elevate unresolved issues to the Regional Executive level (see
Question 2 in Section II.G).

 Coordinate with interagency organizations, such as Provincial
Interagency Executive Committees.

Personnel assigned to Level 2 teams are listed in Attachment 2.

**3. *What is the function of the Regional Technical Team (RTT)?***

This team provides overall procedures oversight and technical
assistance. The Regional Technical Team is composed of regional
technical specialists; they are NOT line officers or decision makers.
Action level and policy decisions are made by Level 2 teams and Regional
Executives. Duties of the RTT include:

 Incorporate and identify improvements and needed revisions to the
streamlining process.

 Maintain and update streamlined consultation procedures.

 Upon request from Interagency Coordinators (ICs) or Regional
Executives, address issues about implementation of these procedures,
particularly those affecting more than one team or issues of provincial
and regional concern.

 Facilitate procedures consistency and communication among teams and
states, as necessary.

 Serve as primary advisors on the streamlined consultation process to
the ICs and Regional Executives.

 Provide advice, feedback, and support to Level 1 and 2 teams, upon
request by Regional Executives and ICs.

.

Personnel assigned to this team are listed in Attachment 2.

**4. *What is the function of the Interagency Coordinators? What is the
role of the Regional Executives in the streamlined consultation
process?***

The ICs are senior staff who function as key policy advisors on these
procedures to the Regional Executives and the National Dispute Panel.
They provide procedural oversight at the regional level. They are NOT
line officers and do not make action level or policy decisions. If
disputed issues arise requiring Regional Executive review, ICs ensure
that executives have an opportunity to promptly address the problem.

The Regional Executives have decision authority for issue resolution or
policy guidance; they would determine if elevation to the National
Dispute Panel is necessary.

Personnel assigned to this team are listed in Attachment 2.

***5. What is the role of the National Dispute Panel?***

The National Dispute Panel is comprised of representatives at the
national level from BLM, FS, FWS, NMFS, and the Environmental Protection
Agency (EPA) that resolve issues or disputes elevated by the Regional
Executives. They are to provide binding resolution within 14 days after
receipt of the issue. This panel was established by the August 9, 1995,
Memorandum of Agreement on timber salvage-related activities under
Public Law PL 104-19.

***B. Team Operations***

**1. *How can Level 1 teams operate most efficiently?***

Based on the Level 1 teams\' experiences, the following points have
proven successful in creating an efficient interagency environment for
Level 1 team operations:

> \$ Ensure that regulatory agency personnel meet or are represented
> early in the planning process.
>
> \$ Communicate regularly and often\--in person, via phone, e‑mail,
> fax, etc.
>
> \$ Use an independent facilitator for larger meetings.
>
> \$ Select a logistical leader to organize meeting schedule and
> coordinate the process.
>
> \$ Send out project information in advance for team member review.
>
> \$ Only review project compliance with relevant programmatic
> consultations and management plans.
>
> \$ Ensure adequate detail is provided on rationale for effects
> determinations.
>
> \$ Limit discussions to points of clarification and focus on
> concurrence or conditional agreement.

\$ Resolve all issues prior to submittal of a final BA.

> \$ Maintain clear, concise records of team meetings, consensus
> agreements (e.g., when a BA is complete), and other key decisions.

\$ Identify agendas that are focused and efficient.

> \$ Involve appropriate resource specialist staff as needed (see
> Question 4 in Section II.B), to provide additional background and data
> for action review.
>
> \$ Regularly apprise Level 2 team of Level 1 team process and
> progress, and request their guidance on workload, priorities, and
> timeframes, as necessary.

**2. *How does the Level 1 team ensure equitable representation (i.e.,
\"voice\") among the agencies during the Level 1 process?***

Level 1 teams frequently have disproportional numbers of members from
the various agencies. For example, there may be one NMFS member and four
or five FS members. To ensure equitable representation (as appropriate
for the plans and actions under consultation), the Level 1 team should
determine early in the consultation process how to balance and maintain
representation and input. For example to give members a fair and
reasonable opportunity for input, they should identify any individuals
involved in reaching consensus on determinations or meeting
facilitation.

The Level 1 team lists ( Attachment 2) identify agency staff who
represent different specialities (such as wildlife and botany). As
determined appropriate by the team for the type of consultation, only
some identified agency Level 1 team members may need to participate in a
particular consultation process. For example, if a project under
consultation affects no listed and proposed wildlife species, the Level
1 team may decide that wildlife biologists need not participate in a
particular consultation.

Level 1 teams are encouraged to invite knowledgeable personnel (such as
biologists, botanists, line officers, range management specialists,
silviculturists, and hydrologists) to their meetings to ensure specific
actions can be fully discussed and assessed (see Question 4 in Section
II.B). However, only designated Level 1 team members or their official
representatives are empowered to reach initial consensus on information
requirements and effects determinations.

**3. *How can Level 2 teams operate most efficiently and effectively?***

The Level 2 teams resolve issues, provide direction concerning the
consultation timeframe and workload priorities, and provide guidance on
feasible mitigation and legal, policy, or managerial constraints. Level
2 teams must function as a collaborative entity in order for the Level 1
team to succeed. The Level 2 team should respond promptly to Level 1
team\'s requests to minimize delays, conflicts, and other complications
in the streamlining process. The Level 2 team should communicate and/or
meet regularly to develop strong working relationships, trust,
understanding of issues, and to keep apprised of their Level 1 team\'s
efforts. Quarterly or more frequent meetings of the Level 2 team are
recommended, contingent on the consultation issues and workload.

**4. *What is the role of non-Level 1 and 2 team members (e.g., FS
District Rangers and district biologists, BLM Field Managers, FWS/NMFS
staff biologists, and other specialists) in the streamlined consultation
procedures?***

District Rangers, Field Managers, FWS/NMFS field supervisors, FS
district and BLM resource area biologists and other specialists, such as
range conservationists and silviculturists, are integral to the success
of streamlined consultation.

For instance, FS district biologists and BLM resource area biologists
who may not be Level 1 team members often draft BAs[^3] and are
frequently more familiar with specific action details than are members
of the Level 1 team. Because of their expertise, these biologists will
likely be involved in Level 1 meetings to ensure the team has the best
available information. Level 1 teams will ensure that the expertise of
FS district biologists, BLM resource area biologists, and other NMFS or
FWS biologists is appropriately incorporated into the streamlined
consultation process.

Likewise, the Level 1 team may have questions, perhaps regarding action
feasibility or implementation capabilities, that may be best answered by
other specialists such as timber sale administrators or engineers. The
Level 1 team may need participation of various specialists to fully
understand the flexibility of constraints in action design relating to
protecting species and their habitats. Specialists with expertise to
share with a Level 1 team should attend relevant portions of their
meetings.

FS District Rangers and BLM Field Managers who are often decision-makers
for actions that Level 1 teams discuss, may attend at their discretion.
For example, the Level 1 team may have concerns about potential impacts
of a proposed action and an array of proposed methods to reduce the
impacts. The team may request a FS District Ranger or BLM Field Manager
to listen to the presentation of Level 1 team concerns so the
decision-maker can consider these concerns and possible solutions during
the decision-making process. In addition, the team may request a meeting
with the decision-maker to discuss proposed solutions and hear the
decision-maker=s views regarding the feasibility of potential methods
for reducing impacts from proposed actions. If disagreements arise about
effects determinations or an action=s consistency with plan guidance,
the issue should be quickly elevated to Level 2 (see Question 1 in
Section II.G).

Addressing large programmatic or batched consultations should begin by
requesting input from various individuals who may be involved in the
proposed activities including specialists, biologists, and line
managers. This process will help ensure all activities are brought
forward for consultation and everyone is aware of the timeframes,
commitments, and constraints in the consultation process. Teams may also
benefit from contacting teams with similar projects and issues to take
advantage of their experience with streamlined consultation.

In summary, any person involved in the design, implementation, or
monitoring of actions may be asked by the Level 1 team to attend
relevant portions of the Level 1 team meeting to offer expertise and
ideas to meet the goal of streamlined consultation.

**5. *Are Level 1 streamlined consultation team meetings open to the
general public, special interest groups, state agencies, tribes, or
other groups and, if so, under what circumstances?***

Occasionally, the general public or special interest groups have
expressed interest in attending or interacting with Level 1 teams during
team meetings. The primary objective for creating Level 1 teams is to
streamline the ESA Section 7 consultation process for BLM, FS, FWS, and
NMFS. Unlike NEPA, which is built on public participation and
involvement, the ESA Section 7 regulations limit outside interested
parties to action applicants (see Question 1 in Section II.H) at
specific intervals in the Section 7 process. Where outside parties
express an interest in participation, line officers should explain the
background and purpose of Level 1 teams, the role of applicants (see
Question 1 in Section II.H) under Section 7, and the role of the public
in the NEPA process.

In general, Level 1 streamlined consultation meetings are not considered
open meetings to the general public. In some instances, representatives
of state wildlife agencies or tribes have participated in Level 1 team
meetings. Outside involvement is tied to land management
responsibilities and information needed to develop BAs and evaluations.
In these cases, public participation should occur during the NEPA phase
of action development. In other cases, for example, if the interested
parties are questioning how Level 1 teams function or apply programmatic
guidelines on the ground, Level 1 teams can schedule a special session,
either in the office or field, to address specific questions or
concerns. Level 1 teams can also include an agenda item in their
meetings to address questions and concerns if the interested parties
request Level 1 interaction. In general, however, because Level 1 team
members are not typically experts in many aspects of action design and
are not decision-makers, action‑specific questions from the general
public or specific interest groups should be deferred to the land
management agencies\' line managers.

***C. Completion Times for Consultation***

**1. *Are the 30 and 60-day timeframes to be used as guidance, or will
the agencies be required to meet these deadlines?***

These timeframes are considered deadlines. However, they are not in
effect until complete BAs, which have undergone Level 1 team review and
concurrence, are received by the regulatory agencies for formal or
informal consultation. The date on which a complete BA (as determined by
interagency review) is received by the regulatory agencies dictates the
start of the 30 or 60-day timeframes (see Introduction, page I-5).

**2. *What constitutes a beginning date for timeframes specified in the
process, and do time limits restart for issues elevated to Level 2
teams?***

The beginning date for consultation is the day a completed BA is
received by the regulatory agency (agreed upon by all involved members
of the Level 1 team) along with a written request for consultation (see
Question 1 in Section II.F). The action agency must submit only complete
BAs deemed adequate by all Level 1 team members. Official timeframes
will not be activated if an issue is unresolved and subsequently
elevated to the Level 2 team, because a BA will not have been agreed
upon by all members of the Level 1 team. If a Level 2 member has an
unresolved issue over BA content, the issue should be elevated to all
members of the Level 2 team. After the issue is resolved by the Level 2
team, an agreed upon BA can be submitted and the appropriate deadline
will begin.

**3. *Is it acceptable to exceed the 60-day response timeframe for BOs
and, if so, when?***

Yes, in [**very limited**]{.underline} and **[specific
situations]{.underline}**, a 60-day turnaround for the BO may be
exceeded. One principal reason and goal of the streamlined consultation
procedures was to establish and ensure the 30 and 60-day response time.
However, exceeding 60 days [may]{.underline} be acceptable if the
consultation is very large scale and complex such as the multi-year,
multiple administrative unit, programmatic type requiring extensive
regulatory agency analysis and review to complete the BO. The 60-day
response may also be unlikely or uncertain in other situations, such as
applicant involvement or elevation of issues beyond the Level 1 team.

Prior to submitting the final BA, the Level 1 and 2 teams **[must
identify the need and concur on the extension of the BO response
timeframe]{.underline}**. An agreed on response date will be established
at the time. Extensions should be reported on the quarterly reporting
form (see Section II.D). Teams should document the agreement in a brief
note and notify their ICs. Any applicant that is involved must be
notified of the extension if it exceeds the timeframe in the ESA
regulations (50 CFR 402.14).

**4. *What conditions would prompt reinitiation of consultation, and
what would the corresponding timeframes be for completing consultation
as a result of a request for reinitiation?***

There are four general conditions that require reinitiation of
consultation as per 50 CFR \' 402.16:

> \$ New information reveals effects of the action may affect listed
> species or critical habitat in a manner or to an extent not previously
> considered.
>
> \$ Action is modified in a manner causing adverse effects to listed
> species or critical habitat not previously considered.
>
> \$ A new species is listed or critical habitat designated that may be
> affected by the action.
>
> \$ Amount or extent of incidental take is exceeded.

Additionally, in the case of multi-year programmatic consultation,
reinitiation and consultation would be required when the BO has expired.
The same 30 and 60-day timeframes discussed in Question 1 in Section
II.C would apply to reinitiations.

***D. Reporting on the Streamlined Consultation Process***

**1. *How will the process be tracked and evaluated?***

The RTT has developed a simple reporting form (see Attachment 3). The
purpose of the form is to summarize the status and activity level of the
streamlined consultation process. This form should be completed by a
regulatory agency team member on a quarterly basis and sent to a
designated person on the RTT. The RTT will summarize the results and
distribute them to all field units in their respective agencies. Level 1
teams are also encouraged to develop, if needed, tracking procedures
specific to their level of detail and information needs. In addition to
the reporting form, submission of explanatory notes to clarify the
information on the form is encouraged.

Submissions should also include brief write-ups on innovative or
prototype consultation techniques or documents, beneficial and effective
approaches to team operations, resolution of technical and process
issues, and other information beneficial to other teams. When
appropriate, a name and contact information should be provided so others
can obtain more complete information, copies of the documents, etc.

**2. *Who will be completing the reporting form and submitting it to the
Regional Technical Team?***

The FWS and/or NMFS representatives on each Level 1 team are responsible
for the reporting form. The Level 1 team will identify the responsible
individuals. The reports should reflect activities of the entire team
and be reviewed and approved by all members of the team to ensure common
agreement of the information. NMFS and FWS representatives should
coordinate closely to ensure the accuracy of information. If the team
has divided its efforts (e.g., addressing terrestrial and aquatic
species separately), the NMFS and FWS representatives should collaborate
in preparing the report. Separate reports for agencies= activities may
be more appropriate in cases where teams are addressing separate
projects and at different scales (i.e., terrestrial group may be doing
programmatic consultation and aquatic group may be reviewing specific
projects).

**3. *How should multiple effects determinations be reported?***

For both action-level and programmatic consultations, one project may
have multiple effects determinations addressing multiple species. In
those cases, include the total number of effects determinations by call
(i.e., NE, NLAA, LAA) and by species on the form. For example, a
right-of-way consultation that addresses three projects with separate
effects determinations for four different species (peregrine falcon,
bald eagle, spotted owl, marbled murrelet) for each project would result
in a total of 12 different effects determinations.

**4. *What is the definition of \"project\" in the \"Team Review
Report\" table on the reporting form?***

Projects are equivalent to individual actions. For example, a single
consultation request for grazing activities might involve grazing
permits on several different allotments. Count these allotments
individually because they may occur in different parts of the
Forest/District (potentially affecting different species) or in
different watersheds (involving, for instance, fish‑bearing versus
non‑fish‑bearing streams). The Team Review report table would reflect
AX@ number of grazing projects reviewed, but the \"Consultation\" table
would reflect one consultation (pending or complete) for the grazing
activity in the Forest/District. With the emphasis towards batching
projects in submitting BAs and issuing BOs, it is important to track the
individual projects reviewed to reflect the actual workload.

**5. *How should programmatic consultations involving several different
activities/project types be reported?***

A single programmatic consultation could involve green timber sale,
right-of-way, and maintenance activities or project types. The Team
Review report should indicate the number of activities/project types
reviewed for each consultation, but the Consultation table should only
reflect a single consultation pending or completed. For example, a
\"1P\" would be placed in the appropriate \"Consultation Status\" column
of the Consultation table for the green timber sale, right‑of‑way, and
maintenance activities, indicating that a single programmatic
consultation (P) for those three projects was conducted (or is pending).
If more than one programmatic consultation is submitted for a report,
indicate 1P.1, 1P.2, etc., or some other method with an appropriate
footnote. Just as important as tracking the number of consultations
completed for the streamlining process is the need to track individual
projects and/or project types reviewed as a measure of the scope of the
consultation. Additional notes on the type and extent of projects
covered under a programmatic consultation are encouraged.

**6. *When should streamlined consultation reports be submitted?***

Reports should be submitted on a quarterly basis by the 5th day of
January, April, July, and October.

**7. *Does the above reporting satisfy requirements for Section 7
consultation by monitoring and tracking impacts of a project,
particularly incidental take?***

No. The streamlined consultation tracking process is an administrative
function related to implementation of the process and is not designed to
track the effects of projects or the extent of incidental take.

**8. *What are the requirements under Section 7 for monitoring and
tracking impacts of an action, particularly incidental take?***

All agencies requesting formal consultation for actions involving
incidental take of a listed species must monitor the impacts of
incidental take as required by the ESA: agencies Amust report the
progress of the action and its impact on the species@ (50 CFR 402.14
(i)(3)). In addition, because provincial/programmatic BAs lack
site-specific and action-specific information for proposed actions,
reporting is necessary to track actions assessed within the BO. This
type of reporting provides regulatory agencies with essential
information for assessing effects of various actions on listed species
and designated critical habitat. By tracking and evaluating all actions
that may adversely affect listed species, regulatory agencies are able
to refine environmental baseline data, BOs, reasonable and prudent
measures, and terms and conditions. With minimal additional effort,
additional information can also be gathered to aid evaluating habitat
conditions at the landscape and watershed levels, resulting in more
reliable information for future decision‑making.

At a minimum, the monitoring report should be designed to:

> \$ Track adverse effects resulting from a proposed action.
>
> \$ Identify when the level of anticipated incidental take is
> approached.
>
> \$ Detect when the level of anticipated take is exceeded.
>
> \$ Determine the effectiveness of reasonable and prudent measures.

With large-scale provincial/programmatic consultations, a monitoring
report will help action agencies to determine their
progress/accomplishments as outlined in their BA. The Level 1 team
should work cooperatively to develope monitoring report format and
content, if not yet done. Reporting dates for monitoring reports should
be negotiated by the Level 1 teams. Although the monitoring reports that
track individual actions, whether covered under an action-specific
consultation or a provincial/programmatic consultation, would be due at
least annually, teams are encouraged to report quarterly, using the
reports to track progress of the proposed actions.

**9. *Does this streamlined process apply to all consultations or just
to timber salvage?***

The streamlined consultation procedures agreement will apply to all
consultations involving FS and BLM activities. The BLM in California
only applies the process to Section 7 consultations involving the six
northern California Field Offices (NORCAL). The BLM in Montana only
applies the procedures to consultations of the Missoula Field Office in
western Montana. See the footnotes in the cover memorandum transmitting
these procedures.

***E. Early Planning and the ESA***

***1. What is the relationship between the streamlining procedures for
consultation and the early planning process?***

In instances where it is determined the draft preferred alternative
emerging from the early planning process (e.g., NEPA) Amay affect@ a
federal listed or proposed species, the streamlined consultation
procedures are activated. The procedures are used to facilitate both
informal and formal consultation where letters of concurrence or BOs,
respectively, provide additional information for feedback into the early
planning process prior to finalizing the preferred alternative and
signing the decision document.

Successfully integrating the need for consideration of listed and
proposed species into the design of management actions is greatly
enhanced by involving regulatory personnel in the early planning and
design of the action. During the early planning process, one or more
alternative(s) will be designed to meet existing plan guidance and
regulatory requirements. This alternative should incorporate all
applicable measures to reduce incidental take. **FWS and NMFS personnel
should participate in this Aearly planning@ phase of the process to the
greatest extent possible.** This involvement can be accomplished by
regulatory agency staff in roles as early planning biologists or those
who are members of the Level 1 team. Different approaches are utilized
by teams. Whatever the approach, the involvement and input must be
timely relative to the action agency\'s planning efforts, timeframes,
and development of the preferred alternative.

If regulatory personnel cannot be directly involved, action agency
personnel (IDT biologists and botanists) should contact FWS and NMFS
personnel during the IDT process to solicit their recommendations about
ESA considerations. Regulatory agency participation is maintained
through representation by their land management agency counterparts
(e.g., resource area and ranger district fish and wildlife biologists
and botanists). The land management agency biologist or botanist then is
responsible for apprising the regulatory biologist or botanist of the
interdisciplinary process.

During the actual streamlined consultation process, the Level 1 team
will review the preferred alternative and validate preliminary effects
determinations. After the streamlining process is initiated,
recommendations for modifications of the preferred alternative from the
Level 1 team to the responsible deciding official (such as the FS
District Ranger or BLM Field Manager) should be limited or restricted to
correcting inconsistencies or identifying ways to minimize impacts to
listed species and proposed and critical habitat considered in the
consultation. The BO may also result in modifications if there is a
jeopardy determination or mandatory terms and conditions to avoid or
minimize incidental take. During streamlining, simply Amaking the
alternative better@ or providing Aadditional mitigation@ is not the role
of the Level 1 team. Any modification of the preferred alternative is
the role of the IDT, under the direction of the responsible deciding
official.

**2. *How do streamlining and the National Forest Management Act (NFMA)
Acontinuous amendment@ process fit together?***

The FS, at the national level, is trying to make their NFMA and related
NEPA documents (especially LRMPs) more current and dynamic by
recommending a Acontinuous amendment@ or Aminor amendment@ process.
However, a Aminor amendment@ in terms of NEPA or NFMA may not be Aminor@
in terms of potential impacts to listed, proposed, and candidate
species, as appropriate. Under current streamlined consultation
procedures, all actions brought to the Level 1 team for consultation
will be designed to comply with relevant guidance and BOs. If the Level
1 team determines that, although an action is not consistent (see
Question 5 in Section II.F) with some aspect of the existing land
management plan, but the inconsistency does not affect species under
consideration, streamlining can move forward. Where an amendment to a
NEPA document may affect a listed/proposed species, the action agency
should reinitiate consultation on the existing plan and provide new
information about the proposed amendment in the BA.

***F. Information Needs and Approaches for Consultation***

**1. *What constitutes a \"complete\" or adequate BA?***

A complete BA is one that **Level 1 team members agree is sufficient to
permit a scientifically credible BO** (that is, it satisfies 50 CFR \'
402.12(f) and 50 CFR \' 402.14(c)). The specific contents of such
assessments will vary depending on the species being considered; these
contents will be identified and agreed to by all Level 1 team members.
The BA should include a discussion of how the action is consistent with
relevant management plans (e.g., NFP, PACFISH, INFISH). To the extent
possible, plant, fish, and wildlife issues should be brought forward at
the same Level 1 meeting and in the same documentation to avoid
duplication and improve consistency in evaluation of effects.

**2. *What types of actions will the team review?***

Level 1 teams will review all actions that \"may affect\" listed or
proposed species. The regulations (50 CFR \' 402.02) define \"effects of
the action.\" Action agencies may bring NE actions to the team for
consideration if the certainty of the NE determination is in question
and the action agency is seeking advice of the Level 1 team in
addressing the uncertainty. In initial streamlining stages, it may be
useful for the action agency to bring forward some NE actions to develop
a team consensus on what types of actions meet the criteria for NE
determinations. In some cases, information on candidate species may be
reviewed and advice offered as applicable (see Question 4 in
Section II.F).

**3. *Will regulatory agencies be expected to concur with NLAA
determinations during the Level 1 team review if a BA has not yet been
prepared?***

BAs will be prepared by the action agencies for all actions that may
affect listed species, and action agency biologists need to clearly
document the rationale for effects determinations. The regulatory agency
team member will use his or her discretion to provide **preliminary**
agreement with the action agency=s **preliminary** effects
determination. The ability to provide such an agreement will depend on
the complexity of the action and the level of information presented at
the Level 1 meetings. Some agreements should be relatively simple and
straightforward, but review for others will require a completed BA and
additional consideration before an effects determination can be made and
agreed to. It is important to note that consultation is not complete
until written concurrence, per 50 CFR \' 402.13, has been received from
the regulatory agencies.

**4. *To what extent will Level 1 teams evaluate effects of proposed
actions on candidates?***

Evaluation of effects on Federal candidates[^4] should be considered to
the extent possible as part of the early planning effort. The action
agencies have policies and mandates to address these species. FS Manual
2670.22 directs that actions must be developed and implemented to ensure
that sensitive species do not become threatened or endangered because of
FS actions. The BLM 6840 policy requires that the agency not take an
action that contributes to the need to list Federal candidate, state
listed, and BLM sensitive species.

The Level 1 team process can provide one forum for interagency technical
coordination and assistance on candidates. The amount of time and effort
spent on these species is at the discretion of the Level 1 and 2 teams.
**It should not hinder the timely completion of consultation on the
Federally listed or proposed species and critical habitats**.

There are other opportunities and mechanisms besides the Level 1 teams
to incorporate regulatory agency input on these species. The
interdisciplinary forums during NEPA processes, watershed analyses, and
other early analysis and planning efforts often require addressing these
species for adequate and appropriate activity mitigation. Regulatory
agency staff input is a key source of input on these species and should
be solicited and considered at this time (see Question 1 in Section
II.E).

Designing actions to fully protect the needs of candidates is strongly
recommended as a long-term investment that will result in significant
benefit to species conservation and efficiency in action implementation.
When an action has been designed to protect the needs of these species,
it moves quickly through the consultation process if species become
listed. Analysis of candidates in a multi-species context at a landscape
scale should be considered. Many candidate species populations are
declining, and management actions should be implemented to help prevent
the need for listing. The most significant and proactive approach is
conserving these species and minimizing future or proposed listings
through action planning and design.

**5. *Will teams review actions for compliance with the programmatic
guidance of relevant management plans (e.g., NFP, PACFISH, INFISH, etc.)
or other programmatic actions that have already undergone Section 7
consultation?***

**The primary purpose of this process is to streamline Section 7
consultation**. Therefore, teams will review action agency findings or
compliance with land management plans only to the extent necessary to
evaluate effects of a proposed action on listed or proposed species and
candidate species, if time permits. To the extent possible, effects on
aquatic and terrestrial wildlife should be reviewed at the same time. It
is assumed that all actions brought to the Level 1 team for consultation
will be designed to comply with relevant management plans and
programmatic consultations. If questions of interpretation arise during
Level 1 review, all effort should be made to resolve them at this level.
The Level 1 team may request, and the action agency representative will
provide, an explanation of how the action complies with the plan or
opinion. It may be prudent in some cases to include this explanation in
the BA or as part of the administrative record.

If the Level 1 team agrees that an action is not consistent with the
relevant plan or previous BO, the action will be returned to the action
agency for review and modification. If the team does not agree on action
consistency, then it should follow the elevation procedures (see
Question 1 in Section II.G).

**It is important to recognize that the Level 1 team is
[not]{.underline} a plan compliance review body with responsibilities to
review all actions against all aspects of existing plans**. It is the
responsibility of the action agency to ensure that all actions brought
to the Level 1 team for consultation comply with management plans and
programmatic consultations. **The key compliance issue for the Level 1
team is the extent to which potential noncompliance may affect the
species under consultation.** If the Level 1 team determines that
although an action is not consistent with some aspect of the existing
land management plan, the inconsistency does not affect species under
consideration, streamlining can move forward. If the potential
noncompliance does not directly affect the regulatory agencies= ability
to complete consultation, the noncompliance issue should be noted and
elevated to Level 2 for their information. Differences in compliance
interpretation for a few actions should not disrupt consultation on a
majority of actions clearly consistent with the relevant plan or
previous BO.

**6. *What does the action agency do if the Level 1 team decides that
they cannot concur with the preliminary effects determination (made by
the IDT biologist) for an action?***

In this event, the action agency may:

> \$ Provide additional information in support of their determination.
>
> \$ Accept the consensus opinion of effects of the Level 1 team.
>
> \$ Modify the action with the assistance of the Level 1 team and
> approval of respective deciding officials or Level 2 team members.
>
> \$ Elevate to the Regional Executives.

**7. *Is using a \"provincial,\" watershed, or programmatic approach to
analyze species and habitat information critical to the consultation
process? Where has this occurred?***

Yes, analysis at a provincial or watershed-based level, as appropriate,
will help ensure meeting the full intent of programmatic guidance such
as the NFP, PACFISH, recovery plans, or conservation agreements. Level 1
teams are strongly encouraged to develop programmatic consultations.
Analysis at this scale enables better understanding of the current
condition of listed species and habitats and allows assessment of likely
future conditions as a result of implementation of programmatic or other
landscape-level plans or BOs. Completing consultations on a broader
ecosystem scale may also reduce the need for some action-level
consultations or further streamline completion time of subsequent action
consultations. In general, an analysis should be done at the largest
scale possible (e.g., multi‑agency, multi-administrative unit,
multi‑action, and potentially multi‑year) to allow for a more meaningful
picture of the ecological situation. In the absence of a large-scale
assessment, an analysis should be attempted at the next closest scale
possible.

Over the past year, numerous efforts have been initiated to plan,
review, and evaluate actions at a programmatic level. Those efforts
included a multi‑year, multi‑program consultation on the Willamette
Province, Olympic National Forest and Olympic National Park in
Washington; a multi‑program, multi‑agency consultation covering actions
on the Rogue and Siskiyou National Forests and Roseburg and Medford BLM
Districts in Oregon; and a multi‑year salvage consultation for four
National Forests in northern California. Although most have occurred
under the NFP, their results are applicable in other areas. The primary
intent was to reduce the consultation workload for programs that are
similar in nature and occur annually such as silvicultural programs,
fish and wildlife habitat improvement and restoration, recreation
programs, and road maintenance.

The general approach in programmatic or landscape-scale consultations
has been to include as many programs and activities as possible, and as
many listed species and critical habitats as appropriate, in
programmatic or landscape-scale consultations. Programmatic documents
with action design criteria or similar conservation measures have
greatly expedited the consultation process and provided a framework for
discussion and faster resolution of questions about effects
determinations, even for actions not ultimately tiered to the
consultation.

**8. *How should land exchange actions be handled under the streamlined
consultation process?***

Land exchanges are subject to the same standards of consultation as any
other federal action when the action agency has discretion and there is
a \"may affect\" determination relating to a proposed or listed species
or proposed or designated critical habitat. In some cases, guidance for
land exchange actions regarding listed and proposed species is provided
in the action agency\'s land use plans, policies, and guidelines. Any
proposed exchange actions should be in compliance with these documents
to qualify for streamlined consultation (see Question 5 in Section
II.F).

Any LRMP and RMP guidelines for exchanges that predate recent listing
actions may not have considered the need to conserve species and
habitats. In these instances, the proposed exchange may not appear to
comply with the guidance, not because it is in conflict, but because
there is no guidance promoting exchanges for threatened and endangered
species conservation reasons. The absence of exchange guidance specific
to threatened and endangered species conservation should not be
considered noncompliance when reviewing a proposal to acquire important
habitat. Likewise, it should not be used as a rationale as to why it is
acceptable to dispose of threatened and endangered species habitat from
federal administration.

**9. *In determining whether or not a given exchange action involving
several parcels \"may affect\" a proposed or listed species or proposed
or designated habitat, is it permissible to balance effects overall by
recognizing that individual parcels may have adverse effects under the
exchange action, but overall the exchange will have a net benefit?***

As with any federal action, consultation under Section 7 is required if
any part of the action \"may affect\" a listed species or designated
critical habitat. It is not permissible to avoid formal consultation by
balancing \"may affect - not likely to adversely affect - or beneficial
effect\" and \"no effect\" portions of an action against those with a
\"may affect - likely to adversely affect\" determination. Formal
consultation is required if any part of the action will result in a
\"may affect - likely to adversely affect\" determination, even in the
short term.

The analysis must evaluate details of both negative and positive aspects
of the exchange. For instance, there may be short-term adverse effects
with long-term benefits or significant benefit for one listed species
but a negative impact on another. Both the BA and BO should present a
full array of information. The regulatory agency will consider adverse
effects in context to beneficial effects when issuing the BO.

***G. Elevation of Issues***

The chart below diagrams the elevation process; and following text
describes it in detail.

**1. *What is the process for elevating issues for resolution from Level
1 teams?***

Issues should be elevated to Level 2:

> \$ When differences in interpretation prevent Level 1 members from
> reaching a workable consensus.
>
> \$ To clarify policy and direction.
>
> \$ If substantial progress toward resolution of the issue(s) is not
> forthcoming.

There should be no stigma attached to elevation to Level 2. **Such
elevation should not be considered a \"failure,\"** but rather a sign
that the system is working to identify problems of conflicting policy or
interpretation of standards. The intent of elevating issues is to avoid
surprises or unnecessary delays. Elevation of an issue should not
prevent the team from working on consultation or other actions
independent of that issue.

Level 1 and 2 teams have flexibility to further refine the elevation
process by developing a particular team\'s operating guidelines; these
should be documented. Elevation can be accomplished by a short letter
signed by any Level 1 team member(s). Appendices 5a and 5b provide an
example of an optional outline for written elevation documents for use
by the Level 1 and Level 2 teams. The letter will simply state the
disagreement or concern about an issue and that the issue needs to be
elevated. This elevation letter need not describe the issue in detail or
necessarily discuss solutions. However, this elevation letter will be
accompanied by a succinct position statement written by the Level 1
member(s) who is/are elevating the issue. The letter should clarify why
consensus cannot be reached by the Level 1 team. If appropriate, these
statements may include suggested remedies to the situation offered by
respective Level 1 team members. This information will better enable the
Level 2 team\--or Regional Executives if necessary\--to make an informed
decision.

Deciding officials, such as Field Managers, District Rangers, or Field
Office Supervisors, may also elevate issues with coordination from the
Level 1 team. These officials have the option to elevate a Level 1
recommendation or finding to Level 2. Both the deciding official and the
Level 1 team are responsible for providing all necessary information to
the Level 2 team.

The Level 2 team should meet or hold a conference as soon as possible,
typically within two weeks of receipt of the letter. The goal of the
meeting should be to: review the issue, determine a course of action
(e.g., hold joint Level 1 and 2 discussions or identify other agency
personnel that should be involved), and identify a timeframe for
reaching a Level 2 decision. The elevation to Level 2 should result in
one of the following: either resolution of the issue and guidance to the
Level 1 team or elevation to the Regional Executives (see below). Level
2 resolution may result in dropping, modifying, or continuing with the
originally designed action. The outcome should be documented in a letter
to the Level 1 team.

If a Level 2 member has an unresolved issue with a particular
consultation, the issue should be elevated to all members of the Level
2. The Level 2 team should make every attempt to resolve the issue,
prior to considering further elevation (see Question 2 in Section II.G).

**2. *What is the process for elevating issues from the Level 2
teams?***

Level 2 teams should strive to reach resolution of an issue. If
resolution is not reached, a Level 2 team or member will elevate the
issue to the Regional Executives with a simple letter notifying them of
an issue and need for resolution. Appendix 5c provides an example of an
optional outline for the written elevation document for the Level 2
teams to the Executives. The Executives may designate staff (such as the
RTT or ICs) to assist in resolution. The elevation document should
include the Level 1 position statements, as well as other material the
Level 2 team provides.

The Regional Executives or designees will then make an interagency
decision and instruct the Level 1 and 2 teams how to proceed on the
issue. If needed, the Regional Executives will elevate an issue or
action to the National Dispute Panel. When resolved, the action will be
routed back to the Level 1 team for further processing. The outcome of
elevated issues will be documented by a RTT reporting coordinator, who
will include this information, when appropriate, in reporting form
summaries distributed to BLM, FS, FWS, and NMFS on a quarterly basis.

***H. Role of Applicants***

**1. *Who is an applicant under ESA? What are the responsibilities of
the agencies and Level 1 team to an applicant?***

Under 50 CFR \' 402.02, an applicant is defined as any person who
requires formal approval or authorization from a Federal agency as a
prerequisite to conducting an action. Applicants would include those
seeking permits, licenses, leases, letters of authorization, and any
other form of authorization or approval issued by a Federal agency as a
prerequisite for carrying out the action.

Applicants can be involved in the consultation process by:

> \$ Submitting written information for consideration during the
> consultation.
>
> \$ Reviewing and providing written comments on draft BOs.
>
> \$ Discussing potential reasonable and prudent alternatives with the
> action and regulatory agencies.
>
> \$ Either consenting to or rejecting greater than 60-day extensions of
> the consultation period (per 50 CFR \' 402.14). The agencies must
> recognize that some actions require applicant agreement prior to
> action modification.

An action agency must determine who will be given applicant status under
the ESA and identify applicants to the regulatory agency. Applicants
must be included in the consultation process under Section 7 of the ESA.
Whenever consultation/conferencing is being initiated, the applicant
should be informed of the fact (per 50 CFR \' 402.11 and 402.14).

Level 1 and 2 teams should be made aware of the existence of an action
with an applicant at the initiation of the streamlining process. Early
applicant involvement is crucial in those instances where it becomes
apparent to the Level 1 team that modifications to the action are
necessary to comply with ESA. Level 1 teams need to develop a timeframe
and strategy for applicant involvement. Whenever applicants are involved
in the process, teams must maintain clear records on when the streamline
processes commenced and the type and level of communications with the
applicant.

The accelerated schedule for completing consultation under the
streamlining process make it imperative for the agencies to involve
applicants early in the process and to develop efficient ways to
incorporate their comments. Applicants should be advised of the
shortened timeframes and be prepared to respond accordingly.

If it becomes apparent that applicant involvement could delay the
streamline consultation processes and turnaround times, the Level 1 team
should consider separating out those actions that may result in
significant delays to the overall streamlining effort. If team progress
on the consultation falls outside of streamlining timeframes, both
agencies must nevertheless comply with the 50 CFR \' 402.14 regulatory
timeframes (refer to Question 3 in Section II.C).

**III. GUIDANCE SPECIFIC TO AREAS COVERED BY THE NFP**

***A. Land Allocation Specific Information***

**1. *Is consultation under the NFP required for actions in the Matrix
or in Adaptive Management Areas?***

Yes, consultation is required for any action or activity that \"may
affect\" listed species regardless of the land allocation under the NFP,
including Matrix and Adaptive Management Areas. The NFP BO did
[not]{.underline} eliminate the need for consultation for NFP
activities, and the Record of Decision (ROD) directs the agencies to
continue to engage in informal and formal Section 7 consultation (ROD,
page 54). The BO assumed that regulatory agencies would Awork
cooperatively with other Federal agencies in watershed analyses and
action and province level planning to facilitate future section 7
consultations,@ and they Aanticipate providing section 7 consultations
that will address planning at larger scales than individual actions.
Efforts will be made to consult on the largest area practicable to
eliminate unnecessary delays in management planning@ (see Question 7 in
Section II.F for discussion of provincial or watershed-level analysis).

In general, actions consistent with the ROD or Aquatic Conservation
Strategy (ACS) objectives may be assumed to be no jeopardy or adverse
modification, but action, watershed, or program-specific Section 7
consultation and appropriate analyses is still necessary to validate
this assumption. The agencies will continue to use Areasonable and
prudent measures@ and other Section 7 tools to minimize take, facilitate
planning, and speed recovery of listed species. For example, incidental
take of northern spotted owls (NSOs) in the Matrix is likely to be
permitted, but Level 1 teams will continue to develop reasonable and
prudent measures to minimize this take and enhance species conservation.
Likewise, localized adverse effects to designated critical habitat in
the Matrix may be permitted to occur as long as neighboring
Late-Successional Reserves (LSRs) are adequately performing the critical
habitat function for which they were designated; FWS assumed such issues
would be Aaddressed in watershed analyses and subsequent plannng
efforts@ (NFP BO, page 41).

**2. *How is an assessment of LSRs (condition) important in addressing
consultation questions about habitat loss or modification, or incidental
take of NSOs, marbled murrelets, or other listed species in the
Matrix?***

The most important issue to consider for most listed species is habitat
loss or modification. Gaining an understanding of the condition and
status of the species and its habitat is basic to the consultation
process, particularly in addressing the rate of take; it is also
essential to recovery and delisting. Managing the rate at which
incidental take occurs should be considered when evaluating the
condition of the reserve system to provide for a well-distributed
population over time, but done so in the context of the change in
baseline conditions in individual LSRs and also within the broader
provincial scale. We expect the results of this type of analysis to be
used, for example, in designing or locating actions to minimize impacts
in the short term where there are concerns that LSRs in a specific area
may not be currently contributing to well-distributed populations.

However, assessing and evaluating condition is not an easy exercise. The
NFP did not establish targets for the numbers of individuals of a
species that need to be maintained or managed for within LSRs. The focus
was on the ability of the reserve system to provide habitat blocks and
connectivity to successfully support viable populations regardless of
the number of individuals. Therefore, any analysis for consultation
purposes should begin with the current condition of the habitat and
associated listed species within the action area, particularly within
neighboring LSRs. For example, an evaluation for NSOs would consider the
amount, distribution, and condition (e.g., fragmentation, patch size) of
existing habitat within an area and across land allocations and
ownerships. This should be done over the largest scale possible,
preferrably at the province, subprovince, or appropriate wateshed level.

A provincial or watershed-level analysis (see Question 7 in Section
II.F) should be used to assist managers in understanding the status of
NSOs, murrelets, and other listed species within the reserve system and
would provide a better basis for determining an appropriate rate of
take. The intent is to enable Level 1 teams to evaluate the amount and
distribution of incidental take over a wider area and a longer time
period (for example, multi-year) so as to understand the impact on
recovery, thereby creating a basis for discussion on managing take and
planning future actions.

***B. Disturbance and Seasonal Restrictions***

**1. *Are seasonal restrictions (or limited operating periods) to be
used to minimize the risk of incidental take of listed species? Is there
interagency guidance on how to make effects determinations for actions
that may affect listed species, for example, through noise
disturbance?***

Seasonal restrictions should be applied where reasonable and prudent to
do so; dates may vary by state or province. Level 1 teams will continue
to have the responsibility and flexibility to apply restrictions in a
reasonable and prudent manner based on site-specific conditions. In
general, benefits to the species should outweigh the costs (action
effectiveness, economic, logistic, etc.) to the action agency when a
reasonable and prudent measure is applied. This determination is often
difficult to make, especially when dealing with elusive species such as
the murrelet; but the biologists and action planners will use their best
professional judgment to reach an agreeable determination. Consideration
may be given to applying reduced restrictions in the Matrix where less
protection is expected under the NFP (see Question 2 in Section III.A),
where action requirements limit the options to apply restrictions, or in
some disturbance situations.

It is well established that many human activities negatively affect some
listed birds and mammals, such as bald eagles. Studies show that noises
associated with human activities can affect bird behavior in a number of
ways, including nest abandonment, increased nest predation, or avoidance
of otherwise suitable habitat. Although there is little formal research,
it is hypothesized that activities that generate high intensity noise
(even if they do not remove suitable nesting habitat) have potential to
disturb nesting NSOs and murrelets, resulting in the incidental take of
young and adults. The risk of take of the murrelet is especially
difficult to determine because of the elusive nature of this species.
However, the probability of a Section 7 determination of jeopardy
resulting from disturbance to NSOs or murrelets is low because of the
dispersed nature of the species in the forest, and because there are no
long‑lasting physical impacts to nesting habitat. Nevertheless, the
potential exists that nesting birds may be affected, particularly in
unsurveyed habitat; and Section 7 consultation is required for these
actions to proceed.

The following three‑step procedure may help to evaluate the probability
that nesting NSOs, murrelets, or other species may be adversely affected
by disturbance‑generating or other activities.

-   Evaluate the probability that NSOs or murrelets are breeding in the
    affected habitat. Is the habitat of high, medium, or low quality?
    Consider factors such as known nest sites, stand size, tree size,
    platform density, proximity to the coast, and survey information
    from nearby areas.

-   Determine whether the noise or disturbance will be of sufficient
    duration and magnitude to affect nesting birds. Is the disturbance
    event large or small, long or short in duration, and high or low in
    intensity?

-   Estimate the likely vulnerability or sensitivity of NSOs or
    murrelets to the potential disturbance. For example, is the affected
    habitat near areas where birds may have already habituated to human
    activities, or is it in a relatively undisturbed area where birds
    are likely to be more unaccustomed to disturbances? Will the
    disturbance occur early or late in the breeding season? Do
    topographic features act as a screen to reduce noise?

The resulting conclusions can be used to identify reasonable and prudent
measures to minimize take, thereby reducing the potential risk to the
species and facilitating action development.

***C. Critical Habitat Issues***

***1. How can action agencies design actions to avoid adverse effects to
marbled murrelet critical habitat?***

All Federal lands designated as critical habitat that are subject to
streamlined consultation procedures occur in LSRs. Actions planned in
LSRs and consistent with the NFP S&Gs should be designed to facilitate
(or be neutral to) development of late‑successional habitat conditions.
This generally includes retaining, and promoting development of, older
larger trees that are suitable for murrelet nesting. These actions
should promote development of the primary constituent elements of
murrelet critical habitat, which includes potential nest trees and
suitable forest within 0.5 miles. To avoid adverse effects, actions
should be designed to avoid removal or degradation of primary
constituent elements or their function.

Some actions allowed in LSRs, such as commercial thinnings, may
adversely affect critical habitat in the short term because they may
thin the surrounding forested area to the point it no longer provides
adequate cover for nest trees. However, these actions should not reach
the adverse modification threshold because thinnings should retain a
maximum component of potential nest trees, generally not result in the
harvest of stands over 80 years of age (110 years in the north Oregon
Coast Range), and should leave the forests functional as murrelet
habitat in the long term. Thinnings should facilitate the long‑term
health of late‑successional habitat and ultimately result in a
beneficial effect to the murrelet critical habitat.

**2. *What is the process for addressing consultation questions about
critical habitat for the NSO?***

If the primary constituent elements of critical habitat are modified,
then an evaluation of the action should be undertaken to determine
whether or not formal consultation is appropriate. Where critical
habitat is in the Matrix, the evaluation should consider whether
adjacent LSRs and Riparian Reserves currently perform the designated
biological function of the critical habitat units being affected. If the
combination of NFP allocations in their current condition can perform
the function of critical habitat, less emphasis would be placed on the
value of critical habitat in the Matrix. An evaluation should at a
minimum consider the amount, distribution, and condition of existing
habitat (meeting the constituent elements) and where appropriate compare
data for Matrix critical habitat with habitat meeting similar conditions
in adjacent reserves. The intent is to assess whether proposed
activities have more than a minimal effect on critical habitat, or if
adjacent LSRs (for critical habitat in the Matrix) do not offer a
reasonable substitute. The analysis should be done at the largest scale
possible (e.g., provincial or at least river basin) to provide an
opportunity to assess localized deficiencies in a larger context.

***3. How should other listed species or their critical habitats be
addressed?***

Section 7 consultation guidance for other species and critical habitats
in the NFP area, which were listed by the date of the ROD, has not
generally changed from that previously specified. There have also been
some new listings or proposed critical habitat and species since the ROD
was signed that may be affected by NFP activities and which should be
considered in action planning. These additional assessments can be
handled by an administrative unit or at a regional or state level. They
should be conducted using current processes and criteria based on
continued research, monitoring, and/or recovery objectives, where
available. If done at the local level, there should be an emphasis to
address as many issues as possible through informal discussions using
the Level 1 process.

**IV. GUIDANCE SPECIFIC TO AQUATIC SPECIES CONSULTATION**

***A. ACS and the Application of Matrices to NFP Anadromous
Consultations***

**1. *What is the NMFS Aeffects matrix,@ and how is it meant to be
used?***

The September 4, 1996, document \"Making Endangered Species Act (ESA)
Determinations of Effect for Individual or Grouped Actions at the
Watershed Scale\" was developed by NMFS, in collaboration with FS, BLM,
and FWS, as a method to evaluate effects of human activities on
anadromous fish and their habitat. The document is based on a AMatrix of
Pathways and Indicators,@ which is a tool for characterizing
environmental baseline conditions for anadromous fish habitat and
predicting the effect of human activities on these conditions.

The Matrix of Pathways and Indicators provides generalized ranges of
functional values for aquatic, riparian, and watershed elements that
collectively describe properly functioning condition for aquatic habitat
essential to the long-term survival of anadromous fish. Properly
functioning values for these matrix elements generally correspond with
the NFP, ACS objectives, and PACFISH riparian management objectives that
are important to Pacific salmonids. Values provided in the generalized
matrix are considered interim and serve as a starting point for Level 1
team discussions, because they may not be appropriate for all watersheds
or fish species. Level 1 teams should take the lead in adapting the
general matrix, as necessary, to reflect local geologic and climatic
influences on aquatic habitat and watershed conditions within specific
physiographic areas. Similarly, Level 1 teams may add, delete, or modify
pathways and/or indicators, as necessary, to address particular life
history and/or habitat requirements of fish species or life stages being
considered by the team.

Prior to the Level 1 process, IDT biologists are encouraged to apply the
processes described in \"Making Endangered Species Act (ESA)
Determinations of Effect for Individual or Grouped Actions at the
Watershed Scale\" for making initial effects determinations on land
management actions on listed or proposed anadromous species. Level 1
teams should use these tools to review and reach consensus on final
effects determinations. Guidance on the use of this process for
consultations within the NFP area was provided by FS, BLM, FWS, and NMFS
Regional Executives in their joint memorandum dated September 13, 1996.
BOs issued by NMFS on various LRMPs similarly describe the expected use
of the Aeffects matrix@ by Level 1 teams when making ESA effects
determinations and evaluating action consistency with relevant LRMP
requirements.

**2. *Are Level 1 teams supposed to assess whether proposed actions are
consistent with ACS objectives?***

Because ACS objectives (ROD, B-11) are included as part of the NFP S&Gs,
they must be considered when determining an action\'s compatibility with
NFP requirements. Action agencies are required to use the results of
watershed analysis to make findings that proposed actions meet or do not
prevent attainment of the ACS objectives. In its BOs on LRMPs within the
NFP area, NMFS determined that actions found consistent with relevant
NFP S&Gs and ACS objectives would not jeopardize listed, proposed, or
candidate salmonids.

When evaluating expected effects of proposed actions on listed,
proposed, or candidate salmonids, Level 1 teams are expected to verify
that an action agency\'s findings are consistent with LRMP S&Gs and
previous plan-level BO requirements. To do so necessarily requires Level
1 teams to explicitly affirm that proposed actions are consistent with
those ACS objectives relevant to the listed species under consideration
(see also Question 5 in Section II.F).

**3. *Since the ACS objectives are not quantified in the NFP ROD, can
numerical standards be adopted to make it easier to evaluate ACS
compliance?***

The aquatic scientists on the Forest Ecosystem Management Analysis Team
did not advise establishing quantifiable objectives for habitat
features. They concluded that the wide range of natural variation of
individual stream habitat variables and the complex, and little
understood, interplay between these (e.g., numbers of pools and pieces
of large wood, percent fine sediment, and water temperature) makes it
difficult to establish relevant quantitative management directives for
habitat features or to quantify direct linkages among processes and
functions outside the stream channel to in-channel conditions and
biological variables. They advised that structural components of stream
habitat not be used as management goals in and of themselves, because no
target management or threshold level for these habitat variables can be
uniformly applied to all streams. Furthermore, attaining the
predetermined value does nothing to ensure aquatic ecosystem processes
are protected. These habitat parameters must be viewed collectively as
part of the larger issue of watershed health and maintenance of natural,
physical, and biological integrity.

**4. *Doesn=t the NMFS Matrix of Pathways and Indicators in effect
quantify the ACS objectives and set management thresholds?***

While matrix indicators generally correspond with ACS objectives, for
the most part they are more narrowly focused on salmonid habitat
indicators and effect pathways, while the ACS objectives address broader
aquatic ecosystem processes and functions. The agencies that helped
develop the NMFS Matrix of Pathways and Indicators did not intend for it
to establish minimum management standards or management thresholds, and
any such use would be considered inappropriate. As an evaluation tool,
it was intended to highlight habitat indicators that collectively define
properly functioning habitat condition and are important to the
long-term survival of salmonids. Suggested ranges of interim or default
values are expected to be adapted for local watershed, river basin, or
provincial conditions by Level 1 teams for use in assessing existing
conditions (the environmental baseline) and expected effects of proposed
actions.

**5. *Can the NMFS Matrix be used to determine ACS consistency?***

Within the context of Section 7 consultations on listed, proposed, or
candidate fish species, the matrix can be used to help determine whether
proposed management actions would retard or impair attainment of certain
ACS objectives. As described above, the matrix does not directly
correspond with each of the nine ACS objectives, but it does highlight
habitat indicators important for long-term survival of fish.

When evaluating action consistency with the ACS, it is important to
choose appropriate spatial (e.g., watershed) and temporal (e.g, years)
analytical scales, and to consider the effects of actions included in
the environmental baseline (e.g., previous restoration actions). Some
Level 1 teams have applied the matrix checklist at the watershed scale
when considering the net effect of groups of actions over decadal
temporal scales. In such cases, the net effects of proposed actions can
be evaluated against the environmental baseline at the larger spatial
scales and longer timeframes for which the ACS was designed to operate.
Projects that have adverse effects at the local or project scale or over
short timeframes \[as indicated by check marks in the Adegrade@ column
of the AEffects of the Action(s)@ checklist\] may be considered
consistent with ACS objectives when effects are considered at the
watershed scale (in this case represented by Arestore@ or Amaintain@
check marks when the checklist is filled out for the watershed) over
longer (e.g., multiple years) timeframes.

**6. *How can timber sales and other management actions that may cause
minor or short-term adverse effects at the action scale, even if
designed to meet NFP S&Gs, still comply with the ACS objectives that
require aquatic conditions to be maintained or restored?***

This question is relevant to Level 1 team efforts to affirm an agency\'s
findings of consistency with ACS objectives that relate to listed
species addressed in the consultation process. The ACS seeks to prevent
further degradation and restore habitat over broad landscapes as opposed
to individual actions or small watersheds. The intent of the ACS
objectives is not to prevent implementation of any action that is not
restorative by design, but rather to allow natural ecological processes
and functions to operate freely across the landscape, which will in turn
maintain and restore habitat conditions naturally over timeframes
measured in decades.

Timber sales or other management activities designed to be consistent
with NFP S&Gs may cause minor adverse effects that are limited in
magnitude, geographic scope, or duration (as described above) and still
be consistent with the ACS objectives if the extent of the impact does
not impair the natural landscape-scale processes and functions that the
ACS was designed to maintain and restore. Therefore, when evaluating
timber sales and other actions not designed per se to be restorative in
nature, the important phrases in determining ACS consistency are whether
the actions would Aretard or prevent attainment@ of the ACS objectives,
not necessarily whether the action itself restores the degraded
conditions.

***B. Bull Trout Consultations***

**1. *What is the Abull trout matrix?@ ***

To more specifically address bull trout, FWS led an interagency team to
modify the Matrix of Pathways and Indicators described above. All parts
of the NMFS Matrix remain, except that several indicators have been
refined and several, specific to bull trout, were added (addressing
sub-population characteristics, disturbance regimens, and large pools).
This modified matrix was designed to be used in Section 7 consultations
for the Klamath and Columbia Basin populations of bull trout that, at
the time the matrix was developed, were proposed for listing under the
ESA. However, like the NMFS Matrix, the bull trout matrix can be adapted
by Level 1 teams to address local bull trout conditions provided that
clear, credible rationale are documented. In the absence of documented
rationale, the parameters issued with the matrix should be used. In
several Washington Forests, regulatory agencies have agreed to use the
FWS-modified Matrix to address the effects of action on all aquatic
species.

***C. Essential Fish Habitat and the Magnuson-Stevens Act***

**1. *What is Aessential fish habitat@ (EFH), and how does consultation
under the Magnuson-Stevens Fishery Conservation and Management Act
(MSFCMA) differ from Section 7 consultation under the ESA?***

In 1996, the MSFCMA was amended by the Sustainable Fisheries Act (P.L.
104-267), which among other things was intended to emphasize the
importance of habitat protection to healthy fisheries and to strengthen
the ability of NMFS and the Fishery Management Councils (FMCs) to
protect habitat needed by the fish they manage. EFH is actually defined
in Section 3(10) of the MSFCMA, as amended in 1996 - \"those waters and
substrate necessary to fish for spawning, breeding, feeding or growth to
maturity.\" This language is interpreted in the 1997 Interim Final rule
\[62 Federal Register 66551, Section 600.10 Definitions\] - *Waters*
include aquatic areas and their associated physical, chemical, and
biological properties that are used by fish and may include historic
areas if appropriate; *substrate* includes sediment, hard bottom,
structures underlying the waters, and associated biological communities;
*necessary* means the habitat required to support a sustainable fishery
and the managed species\' contribution to a healthy ecosystem; and
\"*spawning, breeding, feeding, or growth to maturity*\" covers a
species\' full life cycle.

The amendments require NMFS to identify EFH, actions that would
adversely impact EFH, and actions to conserve EFH. They also require
NMFS, in coordination with the FMCs, to consult on and recommend
conservation and enhancement measures for actions undertaken by any
federal agency that may adversely affect EFH.

On December 19, 1997, NMFS released its AInterim Final Regulations@ to
implement EFH mandates of the MSFCMA (62 Federal Register 66531). The
full text of the interim final rule is available at
http://www.nmfs.gov/habitat/efh/interimfinalrule.htm.

Federal agencies are required to consult with NMFS regarding any
activity or proposed activity, authorized, funded, or undertaken by the
agency, that may adversely affect EFH (Section 305(b)(2) of the MSFCMA).
It is NMFS=s intention to use existing consultation and environmental
processes wherever appropriate to fulfill EFH consultation requirements
and avoid duplication. NMFS expects that the ESA Section 7 procedures
described in the interagency streamlined consultation process will be
adequate to meet all EFH consultation requirements for listed species.

The trigger for an EFH consultation is when a federal action is likely
to adversely affect EFH. Therefore, in cases where actions are
determined [not]{.underline} likely to adversely affect listed species
and ESA consultation is concluded informally, consultation on EFH would
not be required. For actions determined likely to adversely affect
listed species, notification for an EFH consultation would occur when
the federal action agency provides a BA, or otherwise requests formal
ESA consultation with NMFS. A description of the EFH area affected by
the proposed action and an assessment of the expected impacts of the
action on designated EFH should be described in the BA or consultation
request, in a separate section entitled AEssential Fish Habitat.@ NMFS
will provide EFH conservation recommendations to the federal action
agency in the BO in a separate section entitled AEFH Conservation
Recommendations.@

Where listed species are not present, EFH consultations can be
incorporated with environmental review procedures required by statutes
other than the ESA (e.g., NEPA, Fish and Wildlife Coordination Act,
Clean Water Act, and Federal Power Act) to reduce duplication and
improve efficiency. In such cases, NMFS and the federal action agency
would work together to determine how the environmental review process
would be used to fulfill the requirements of EFH consultation.

**V. GUIDANCE SPECIFIC TO OTHER ORDERS, ACTS, OR POLICIES**

***A. Access***

**1. *Is there an interagency policy on ESA consultations concerning
access across federal lands?***

Yes. Attachment 4 is the May 16, 1996, interagency memorandum that
describes specific consultation procedures for actions involving access
across Federal lands. Level 1 biologists and other consultation
participants should refer to this document when dealing with this issue.

***B. Secretarial Order 3206 on American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the ESA***

Additional implementation guidance for the Secretarial Order is being
developed by NMFS, FWS, and the involved Tribes. The following Q&As
provide information about the Secretarial Order and the existing
guidance of the agencies on tribal consultation[^5] and coordination.

**1. *What is Secretarial Order 3206? ***

The Order was signed on June 5, 1997, by the Secretaries of the Interior
and Commerce Departments (DOI and DOC, respectively). Its purpose is to
clarify responsibilities of DOI/DOC agencies when actions taken under
the authority of the ESA and associated implementing regulations affect,
or may affect, Indian lands, tribal trust resources, or the exercise of
American Indian tribal rights. It also acknowledges the trust
responsibility and treaty obligations of the United States toward tribes
and its government‑to‑government relationship in working with tribes.

The Order does not alter the legal or regulatory responsibilities of DOI
or DOC agencies. The Order requires DOI/DOC agencies to \"consult\"
with, and seek the participation of, affected tribes to the maximum
extent practicable when their planned actions involving the ESA may
affect Indian lands, tribal trust resources, or the exercise of tribal
rights. This tribal consultation includes \"providing affected tribes
adequate opportunities to participate in data collection, consensus
seeking, and associated processes.\" The Order requires DOI/DOC agencies
to use tribal conservation and management plans that both govern
activities on Indian lands and that address the conservation needs of
listed species.

Under the Order, if a DOI/DOC agency determines that conservation
restrictions affecting tribes are necessary to protect listed species,
the affected tribes shall be given written notification of such as far
in advance as practicable. If a conservation restriction is directed at
a tribal action involving potential for incidental take of a listed
species, the DOI/DOC agency shall include in its notice to the affected
tribes an analysis and determination that all of the following
\"conservation standards\" have been met:

> \$ Restriction is reasonable and necessary for conservation of the
> species.
>
> \$ Conservation purpose of the restriction cannot be achieved by
> reasonable regulation of non‑Indian activities.
>
> \$ Measure is the least restrictive alternative available to achieve
> the required conservation purpose.
>
> \$ Restriction does not discriminate against Indian activities, either
> as stated or applied.
>
> \$ Voluntary tribal measures are not adequate to achieve the necessary
> conservation purpose.

When the FWS or NMFS enter into formal consultations with agencies not
in DOI or DOC on a proposed action which may affect tribal rights or
tribal trust resources, FWS or NMFS shall notify the affected tribes and
encourage the action agency to invite the tribes and the Bureau of
Indian Affairs to participate in the consultation process.

**2. *What direction currently exists to involve the tribes in agency
actions, and how does it relate to the Secretarial Order?***

The Order builds on policy and direction already specified in recent
guidance compelling agency coordination and tribal consultation with
Indian tribes. A Atribe@ is a federally recognized American Indian
government. An updated listing of recognized tribes is provided
periodically in the Federal Register (see Vol. 62, No. 205,
pp. 52270-75, October 23, 1997, for the most recent listing). A variety
of acts and orders provide guidance.

Specific agency guidance is provided in BLM Manual 8160 and the
associated handbook and in the 1995 Forest Service National Resource
Book on American Indian and Alaska Native Relations. The range of topics
subject to tribal consultation is broad to include identification and
protection of sacred sites; human burials; archaeological sites; listed,
proposed and candidate species; traditional use locations; and the
exercise of treaty rights.

Tribal consultation is more of a process than an event, constituting an
ongoing dialogue between respective decision-makers and the staff of
agencies and tribes. Consequently, if a government-to-government
dialogue has already been established between an agency=s field office
and a tribe, concerns over potential affects on listed and other special
status species should be integrated within the range of other tribal
issues identified above. Two key elements of tribal consultation are:
(1) field office managers are the primary contacts for the agencies with
the appropriate line officer taking the lead in intergovernmental
discussion; and (2) agency managers should seek equitable solutions with
tribes on resource issues. Other common elements of tribal consultation
include sharing of scientific and technical expertise and information
exchange. The primary means of ensuring success in tribal consultation
over the long term is establishment of protocols specifying the various
aspects of expected communication between the agency and a tribe.

**3. *How and when should tribes be involved in agency actions?***

The Secretarial Order states that a tribe should be involved whenever an
agency becomes aware that their actions may affect tribal trust
resources, the exercise of tribal rights, or Indian lands. Those tribes
with reserved rights to resources on public lands primarily include
tribes with specific treaties negotiated, signed, and ratified by
Congress in the mid-19th century. The right to harvest species includes
a wide range of native plants and animals. The ongoing dialogue between
agencies and tribes should address anticipated agency actions and
programs, ideally during the period of action/program formulation but at
least before initiating public scoping on the larger agency efforts.
Federal Advisory Committee Act concerns have been formally waived
regarding such tribal government participation. The nature of tribal
involvement, tribal information provided to the agency, and how the
information is used should be documented in the corresponding NEPA
document and referenced in the resulting BA for further guidance in
transmitting documents.

***C. Clean Water Act and ESA Consultation***

**1. *What is the relationship between the Clean Water Act (CWA) and
Section 7 of the ESA?***

Increasingly, EPA and the Services are attempting to integrate efforts
to protect the aquatic environment (i.e., Ato restore and maintain the
chemical, physical, and biological integrity of the Nation=s waters.@)
under the CWA with efforts to protect at-risk species and habitats under
the ESA, as well as to prevent the need to list new species. Both pieces
of legislation share the goal of maintaining and restoring ecosystem
integrity.

In an effort to support this shared goal, NMFS, FWS, and EPA are
integrating the implementation of the CWA and ESA on federal and
non-federal lands. Through integration, the agencies hope to jointly
address significant water quality problems and the decline of listed
salmonids in the Pacific Northwest and coastal California. Specific
examples of ongoing activities to integrate the CWA and the ESA include:

-   The development of a Memorandum of Agreement (MOA) between NMFS,
    FWS, and EPA that explains how the three agencies will work together
    to achieve the complementary goals of the CWA and the ESA. National
    guidance, in the form of an MOA, will assist the EPA and Services=s
    regional and field offices in working together more efficiently and
    effectively. The draft MOA addresses four general areas: (a)
    national procedures for interagency coordination and elevation of
    issues to speed decisions; (b) national consultation on existing
    water quality criteria for aquatic species, and a national research
    and data gathering plan; (c) improved consultation procedures for
    EPA approval of state and tribal water quality standards; and (d)
    national programmatic consultation on state and tribal National
    Pollutant Discharge Elimination System (NPDES) permitting programs.

-   NMFS and FWS consultation under section 7 of the ESA regarding
    various CWA program activities, including EPA approval of state and
    tribal NPDES permitting programs and water quality standards.

-   The joint development of policy papers that define agency positions
    on such topics as *Total Maximum Daily Load-Habitat Conservation
    Plan integration* and *habitat parameters* that can be combined with
    numeric and narrative water quality standards to provide a more
    comprehensive basis for the protection of water quality and at-risk
    habitat.

***Attachment 5a***

**Example of Optional Outline for**

**Level 1 Action or Issue Elevation**

Forest/District ( Action Location): Date:

Action Name: Type of Activity:

I. Background:

II\. Specific Issues Being Elevated:

A.

B.

III\. Alternatives Recommended:

A.

B.

C.

D.

IV\. Enclosures:

V. Recommended Response Date From Level 2:

VI\. Level 2 Team: Forward to

1\. FWS

2\. NMFS

3\. BLM

4\. FS

VII\. Level 1 Team:

1\. [/s/]{.underline} FWS

2\. [/s/]{.underline} NMFS

3\. [/s/]{.underline} BLM

4\. [/s/]{.underline} FS

VIII\. Manager/Supervisor Comment. (If the elevation is at the request
of the Manager or Supervisor.)

***Attachment 5b***

**Example of Optional Outline for**

**Level 2 Response to Level 1 Elevation**

Forest/District ( Action Location): Date:

Action Name: Type of Activity:

I. Direction to Level 1 Team for Action/Issue Resolution:

II\. Rationale for the Decision:

III\. Level 2 Team:

1\. [/s/]{.underline} FWS

2\. [/s/]{.underline} NMFS

3\. [/s/]{.underline} BLM

4\. [/s/]{.underline} FS

NOTE: Level 2 Team will ensure copies of this response are forwarded to
the Interagency Coordination Team (Portland).

***Attachment 5c***

**Example of Optional Outline for**

**Level 2 Team Elevation to Regional Executive Team**

Forest/District (Action Location): Date:

Action Name: Type of Activity:

I. Background:

II\. Issues Being Elevated:

III\. Recommended Course of Action (or alternatives):

IV\. Enclosures:

V. Date Response Needed:

VI\. Executive Team Issue is Being Elevated to:

1\. FWS

2\. NMFS

3\. BLM

4\. FS

VII\. Level 2 Team:

1\. [/s/]{.underline} FWS

2\. [/s/]{.underline} NMFS

3\. [/s/]{.underline} BLM

4\. [/s/]{.underline} FS

[^1]: Streamlined consultation in this document includes conferencing
    for proposed species or proposed critical habitat, as well as
    consultation for listed species or designated critical habitat.

[^2]: Under 50 CFR, BAs are only required for major construction
    projects. However, for the purpose of these procedures, the agencies
    have continued the practice of using the term to refer to any
    documentation prepared to support consultation requests.

[^3]: The FS may develop Biological Evaluations to provide information
    for BAs.

[^4]: Candidate species, those where significant information exists on
    their status and threats to propose them as endangered or
    threatened, are designated by FWS. NMFS designates as candidates
    those species being considered for listing as threatened or
    endangered, but not yet the subject of a proposed listing rule.

[^5]: Tribal consultation differs from ESA consultation. Tribal
    consultation between federal agencies and American Indian tribal
    governments is the formal intergovernmental process of
    communication, cooperation, and negotiation that is integrated into
    a federal agency\'s decision‑making process. Required by various
    statutes and federal policy, tribal consultation between the two
    sovereigns (the federal government and the tribes) is normally
    conducted between decision‑makers of the respective governments,
    except where explicitly delegated. The objective of
    intergovernmental tribal consultation is the exchange of information
    on proposed federal projects and programs, tribal interests that may
    be affected, and possible means of avoiding potential effects.