## Enclosure 1

## ALTERNATIVE CONSULTATION AGREEMENT 

## TO IMPLEMENT SECTION 7 COUNTERPART REGULATIONS

**USDA FOREST SERVICE,**

**NATIONAL MARINE FISHERIES SERVICE**

**and**

**U.S. FISH AND WILDLIFE SERVICE**

**A. Background**

> 1\. This Alternative Consultation Agreement (ACA) has been prepared
> pursuant to the Joint Counterpart Endangered Species Act (ESA) Section
> 7 Consultation Regulations issued on December 8, 2003 (Federal
> Register, pages 68254-68265), to support implementation of the ESA.
> The counterpart regulations complement the general consultation
> regulations at 50 CFR 402 by providing an alternative process for
> completing section 7 consultations for Federal agency actions that
> authorize, fund, or carry out projects that support the National Fire
> Plan (NFP).
>
> 2\. The purpose of the counterpart regulations is to enhance the
> efficiency and effectiveness of the consultation process under section
> 7 of the ESA for NFP projects by providing an optional alternative to
> the procedures found in §§ 402.13 and 402.14(b) when the Forest
> Service determines a project is "not likely to adversely affect"
> (NLAA) any listed species or designated critical habitat.
>
> 3\. Implementation of the counterpart regulations and this ACA is
> expected to maintain the same level of protection for threatened and
> endangered species and designated critical habitat as under 50 CFR
> Part 402, Subpart B. It is expected that projects with NLAA
> determinations by the Forest Service would have been considered to be
> NLAA determinations by the National Marine Fisheries Service (NMFS) or
> U.S. Fish and Wildlife Service (FWS).

**B. Process and Procedures**

> 1\. The counterpart regulations (50 CFR 402.30 to 402.34) establish an
> alternative process for meeting the requirements of section 7 of the
> ESA on proposed projects that support the NFP, when the Forest Service
> determines that the project is NLAA any listed species and/or critical
> habitat. Fire Plan Projects (FPP) are actions determined by the Forest
> Service to be within the scope of the NFP, such as prescribed fire,
> mechanical fuels treatments (thinning and removal of fuels to
> prescribed objectives), emergency stabilization, burned area
> rehabilitation, road maintenance and operation activities, ecosystem
> restoration, and culvert replacement actions.

**C. Area of Implementation and Scope of Application**

1.  This agreement covers any Forest Service actions that authorize,
    fund, or carry out projects that support the NFP.

2.  All listed threatened, endangered and proposed species and all
    designated and proposed critical habitat are subject to this ACA.

3.  This ACA is effective upon signing by all parties.

4.  The Counterpart Regulations may be used after signing of the ACA,
    and when the required training has been completed. This ACA will
    remain in effect unless revoked by any party**.**

5.  Implementation of counterpart regulations and this ACA are subject
    to Forest Service Manual 2670.4 delegations of responsibilities.

**D. Personnel to Make NLAA Determinations and Document ESA Compliance**

1.  The counterpart regulations may be used by any Forest Service
    biologist, botanist or ecologist who conducts section 7 effects
    analyses for proposed actions that are Fire Plan Projects and make
    determinations of effect under the ESA and has completed the
    required training per section E. However, journey level biologists,
    botanists or ecologists are responsible for ensuring adequacy of
    biological evaluations and biological assessments with established
    FSM 2672.42 policy, and will be listed in Appendix 1.

2.  Responsibility for documenting compliance with the ESA under the
    counterpart regulations and for ensuring biologists have the
    required training lies with the line officer having decision
    authority for the project being evaluated, usually a District Ranger
    or a Forest Supervisor (FSM2670.45 and 2670.46). The form given in
    Appendix 1 will be used to document this for each applicable
    project.

**E. Developing and Maintaining Skills Necessary**

1.  The FWS, NMFS and Forest Service have developed a training program
    to provide Forest Service personnel identified in D. with the
    necessary skills to ensure consistent use and application of the
    standards of review as described in the ESA, the section 7
    implementing regulations, and the Consultation Handbook.

2.  The training program will be delivered via a web based system with
    one national meeting for regional contacts from the Forest Service,
    NMFS and FWS. The web based system will be delivered within 2 months
    of this agreement being signed. The national meeting may be used to
    train a select number of Forest Service subunits.

3.  The training program will include a mutually agreeable section 7
    curriculum developed and approved by NMFS and FWS to ensure that the
    Forest Service consistently uses and applies the standards of review
    as described in the ESA, the section 7 implementing regulations, the
    Consultation Handbook, and other existing training materials.

4.  Specifically, the training curriculum will consist of background on
    the regulation, the procedures outlined in this agreement, standards
    for conducting the not likely to adversely affect determination, as
    discussed in number E. 3. above, and developing administrative
    records.

5.  The Forest Service will maintain the skill level of its workforce
    who use the Counterpart Regulations by developing and supporting the
    web-based training program. The web based training will be updated
    as needed.

6.  Line officers are responsible for documenting compliance with the
    ESA under the counterpart regulations and for ensuring biologists,
    botanists and ecologists have sufficient training. These line
    officers will be required to take the web-based training.

7.  Forest Service will identify those individuals who have completed
    the appropriate training on the counterpart regulations, and provide
    the Washington Office of the FWS and NMFS Director of Protected
    Resources in Silver Spring, Maryland, with a list of the names of
    these individuals, as well as of any additional personnel who
    subsequently complete this training.

8.  Each subunit that has fulfilled the training requirements must
    notify the appropriate FWS Field Office and NMFS' Director of
    Protected Resources in Silver Spring, Maryland, in writing, prior to
    implementing the counterpart regulation.

**F. Standards of Project Review**

> 1\. In assessing effects of proposed NFP actions, the Forest Service
> will consider the following standards in making NLAA determinations
> regarding individuals of the species or constituent elements of
> critical habitat: (1) direct and indirect effects of the proposed
> action, (2) effects of inter-related or inter-dependent actions, (3)
> the environmental baseline, and (4) whether effects are insignificant,
> discountable, wholly beneficial, or adverse.
>
> 2\. In so doing, the Forest Service must consider the best scientific
> and commercial data available and must provide a reasoned explanation
> for its conclusions.

**G. Incorporating New Information**

1.  National Forests and Grasslands shall maintain accurate, updated
    lists of threatened and endangered species and critical habitat that
    either occur on National Forest System (NFS) lands, or that could be
    affected by actions authorized, funded or carried out on NFS lands.

2.  When a species or critical habitat is proposed for listing or
    designation the FWS or NMFS will notify the Forest Service. Prior to
    or at the time of final listing or designation the FWS or NMFS will
    provide to the Forest Service any information that would be relevant
    to conducting an effects analysis for that species. Upon request,
    NMFS and FWS will provide the Forest Service with assistance
    relevant to conducting effects analysis for the proposed species;
    however, the obligation to obtain the best available scientific and
    commercial data is the Forest Service's ongoing responsibility under
    section 7(a)(2) of the ESA.

3.  The FWS and NMFS agree to share any new information on currently
    listed species and designated critical habitat that the FWS or NMFS
    receive that is relevant to conducting effects determinations. Upon
    request, NMFS and FWS will provide the Forest Service with
    assistance in determining whether their actions may affect listed
    species, where additional scientific and commercial data would
    provide a better information base from which to formulate an effects
    determination, and whether formal consultation is required.

4.  After determinations of effect are made and during actual project
    implementation under the counterpart regulations, the Forest Service
    shall consider any significant new information about the species,
    the action and the action area, as applicable, to ensure there is no
    new basis for different determinations of effect, additional
    determinations of effect, or a need to consult with the NMFS or FWS
    regarding ongoing projects. New species listings, and new species
    occurrences in project areas are two examples of such new
    information.

**H. Maintaining a List and Record of Fire Plan Projects**

> 1\. Forest Service field units will maintain a list of NFP projects
> for which the counterpart consultation regulations were used.
> Annually, by March 1, each National Forest will provide their Regional
> Office with a list of NFP projects for which the counterpart
> regulations were used. This will include the project name, type of
> Fire Plan Project (e.g., thinning, prescribed fire, etc.), and a list
> of threatened or endangered species for which a NLAA determination was
> made. The Region, through the Washington Office of the Forest Service,
> will provide NMFS and FWS with these lists.
>
> 2\. The Forest Service will document the analysis used in making the
> NLAA determination in a biological assessment or a biological
> evaluation. The biological evaluation and/or biological assessment
> document will be used in the monitoring and periodic program
> evaluation.

**I. Monitoring and Periodic Program Evaluation**

> 1\. The purpose of the monitoring program is to evaluate whether the
> Forest Service is making NLAA determinations consistent with the best
> available scientific and commercial information, and in compliance
> with the ESA and the section 7 regulations.
>
> 2\. The monitoring program will be national in scope, with samples
> based at the subunit level (Ranger District) and completed one year
> following implementation of the regulation. The monitoring program
> will be conducted every three years following the first year.
>
> 3\. A national monitoring team (Team) will be comprised of individuals
> from the FWS, NMFS and Forest Service. The FWS and NMFS team members
> will be responsible for conducting the evaluation, with the Forest
> Service members available to provide any needed context and
> clarifications, and to answer questions on projects.
>
> 4\. As part of their annual project reporting requirement, each
> subunit (Ranger District) that uses the counterpart regulations must
> complete the procedural checklist certifying that the procedural
> requirements have been met (Appendix 2), and submit it annually by
> March 1 to its respective Forest Service regional office. If the
> procedural requirements have not been met, the subunit will discuss
> the appropriate remedies in the certification memo. The Forest Service
> will provide the Team with this information.
>
> 5\. The Team will take a random sample of projects from the Forest
> Service national list of fire plan projects that received NLAA
> determinations during the period under review. The sample will be
> sufficient to allow the FWS and NMFS to determine with a mutually
> agreed upon level of confidence that the Forest Service is making the
> determinations appropriately.
>
> 6\. The Forest Service will provide the Team with the biological
> assessment or biological evaluation for each project that has been
> selected.
>
> 7\. The Team will evaluate whether the Forest Service considered
> relevant information and used the best scientific and commercial data
> available in evaluating effects of the proposed action on listed
> species and critical habitat and in making the NLAA determination. It
> also will evaluate whether the Forest Service demonstrated a rational
> connection between that information, the proposed action and the NLAA
> determination. This includes identification of any direct effects,
> indirect effects, effects of any interrelated actions or
> interdependent actions and a description of how the effects are
> insignificant, discountable and/or beneficial.
>
> 8\. The Team will use the Evaluation Form (Appendix 3) to document
> results of each project review. If all of the determinations were made
> appropriately then no further remedy is needed. If a determination is
> found to be inappropriate, more intensive sampling of that office's
> National Fire Plan project records may be warranted. Corrective
> actions will be identified by the Team.
>
> For example, if the Team determines several determinations made for a
> fuel treatment project were not made consistent with the best
> available scientific and commercial information, the ESA, and the
> section 7 regulations, then the Team may recommend further focused
> review of determinations for similar types of projects.
>
> 9\. Within 45 days of completing the evaluation, a monitoring report
> will be prepared by the Team. Based on the results, the FWS and NMFS
> Service Directors may recommend changes to the Forest Service
> implementation of the ACA. If necessary, NMFS and/or FWS may suspend
> or exclude any subunit from participating under the ACA, or otherwise
> terminate or suspend this ACA.
>
> 10\. A Federal Register notice of monitoring report availability will
> be prepared by the NMFS or FWS, and the monitoring report will be
> posted on a NMFS and/or FWS website.

[\_/s/ Dale N. Bosworth\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \_[March 2,
2004]{.underline}\_\_\_

Dale N. Bosworth Date

Chief, Forest Service

[\_/s/ William T. Hogarth\_ \_\_\_]{.underline} \_[March 3,
2004]{.underline}\_\_\_

William T. Hogarth Date

Assistant Administrator for NOAA Fisheries

[\_/s/ Steve Williams\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}
\_[March 3, 2004]{.underline}\_\_\_

Steven A. Williams Date

Director, U.S. Fish and Wildlife Service

**Appendix 1: NATIONAL FIRE PLAN PROJECT ESA COMPLIANCE**

**STATEMENT**

**PROJECT COMPLIANCE WITH THE ENDANGERED SPECIES ACT**

**CONSULTION REQUIREMENTS, USING THE**

**COUNTERPART CONSULTATION REGULATIONS**

**USDA FOREST SERVICE**

PROJECT NAME:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

STATE:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

FOREST SERVICE REGION:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

NATIONAL FOREST/GRASSLAND:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

RANGER DISTRICT:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DATE OF COMPLETED BE or BA:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

NAME OF JOURNEY-LEVEL BIOLOGIST, BOTANIST OR ECOLOGIST WHO ENSURED THE
ADEQUACY OF THE BE or BA:

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

As proposed this project is within the scope of, and will support, the
National Fire Plan, because:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

The Not Likely to Adversely Affect (NLAA) effects analysis completed and
documented in the above BE or BA was done under the Section 7
counterpart regulations of the Endangered Species Act (Federal Register,
December 8, 2003), and is in compliance with those regulations and the
March 3, 2004 Alternative Consultation Agreement between the Forest
Service, FWS and NMFS.

SIGNATURE OF LINE OFFICER:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

NAME OF LINE OFFICER:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

TITLE OF LINE OFFICER:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DATE:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Appendix 2: Procedural Checklist to Certify that Procedural Requirements

> Have Been Met, Pursuant to the ACA

(To be prepared by each Forest Service Ranger District for use by the
Monitoring Team)

Region \_\_\_\_\_\_\_\_Name of Forest and District
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Certifying Line Officer
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

+---+------------------------------------------------+---------+-------+
| * |                                                | ## Yes  | ## No |
| * |                                                |         |       |
| C |                                                |         |       |
| r |                                                |         |       |
| i |                                                |         |       |
| t |                                                |         |       |
| e |                                                |         |       |
| r |                                                |         |       |
| i |                                                |         |       |
| o |                                                |         |       |
| n |                                                |         |       |
| * |                                                |         |       |
| * |                                                |         |       |
|   |                                                |         |       |
| C |                                                |         |       |
| o |                                                |         |       |
| n |                                                |         |       |
| s |                                                |         |       |
| u |                                                |         |       |
| l |                                                |         |       |
| t |                                                |         |       |
| i |                                                |         |       |
| n |                                                |         |       |
| g |                                                |         |       |
| a |                                                |         |       |
| n |                                                |         |       |
| d |                                                |         |       |
| R |                                                |         |       |
| e |                                                |         |       |
| v |                                                |         |       |
| i |                                                |         |       |
| e |                                                |         |       |
| w |                                                |         |       |
| i |                                                |         |       |
| n |                                                |         |       |
| g |                                                |         |       |
| B |                                                |         |       |
| i |                                                |         |       |
| o |                                                |         |       |
| l |                                                |         |       |
| o |                                                |         |       |
| g |                                                |         |       |
| i |                                                |         |       |
| s |                                                |         |       |
| t |                                                |         |       |
| s |                                                |         |       |
| h |                                                |         |       |
| a |                                                |         |       |
| v |                                                |         |       |
| e |                                                |         |       |
| : |                                                |         |       |
+---+------------------------------------------------+---------+-------+
| 1 | Access to current published biological and     |         |       |
|   | ecological information                         |         |       |
+---+------------------------------------------------+---------+-------+
| 2 | Access to current published biological and     |         |       |
|   | ecological information relevant to the         |         |       |
|   | conservation of the threatened and endangered  |         |       |
|   | species and designated critical habitat        |         |       |
+---+------------------------------------------------+---------+-------+
| 3 | Access to information on the methods and       |         |       |
|   | procedures for environmental assessments       |         |       |
+---+------------------------------------------------+---------+-------+
| 4 | Access to current information on the           |         |       |
|   | environmental consequences of human actions on |         |       |
|   | threatened and endangered species and          |         |       |
|   | designated critical habitat                    |         |       |
+---+------------------------------------------------+---------+-------+
| 5 | Access to current information on the success   |         |       |
|   | or failure of actions intended to minimize     |         |       |
|   | affects on threatened and endangered species   |         |       |
|   | and designated critical habitat                |         |       |
+---+------------------------------------------------+---------+-------+
| 6 | Access to continued agency training and        |         |       |
|   | guidance on section 7                          |         |       |
+---+------------------------------------------------+---------+-------+
| 7 | Access to biological assessment template and   |         |       |
|   | other tools where applicable (e.g., Northwest  |         |       |
|   | regional consultation tools)                   |         |       |
+---+------------------------------------------------+---------+-------+

Appendix 3: Evaluation of Determination of Effects Documents that
Support

> NLAA Determinations

(To be used by the Monitoring Team)

Action Agency \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_Name of
Subunit \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name of
Project\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Team Representative \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Date \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

+---+-----------------------------------------------------+------+-----+
| * |                                                     | ##   | ##  |
| * |                                                     |  Yes |  No |
| P |                                                     |      |     |
| r |                                                     |      |     |
| o |                                                     |      |     |
| d |                                                     |      |     |
| u |                                                     |      |     |
| c |                                                     |      |     |
| t |                                                     |      |     |
| / |                                                     |      |     |
| C |                                                     |      |     |
| r |                                                     |      |     |
| i |                                                     |      |     |
| t |                                                     |      |     |
| e |                                                     |      |     |
| r |                                                     |      |     |
| i |                                                     |      |     |
| o |                                                     |      |     |
| n |                                                     |      |     |
| * |                                                     |      |     |
| * |                                                     |      |     |
+---+-----------------------------------------------------+------+-----+
| 1 | Identifies proposed action clearly (includes a      |      |     |
|   | description of the various components of the        |      |     |
|   | action)                                             |      |     |
+---+-----------------------------------------------------+------+-----+
| 2 | Identifies spatial and temporal patterns of the     |      |     |
|   | action's direct and indirect environmental effects, |      |     |
|   | including direct and indirect effects of            |      |     |
|   | interrelated and interdependent actions             |      |     |
+---+-----------------------------------------------------+------+-----+
| 3 | Identifies Action Area clearly (based on            |      |     |
|   | information in 2.)                                  |      |     |
+---+-----------------------------------------------------+------+-----+
| 4 | Identifies all threatened and endangered species    |      |     |
|   | and any designated critical habitat that may be     |      |     |
|   | exposed to the proposed action (includes a          |      |     |
|   | description of spatial, temporal, biological        |      |     |
|   | characteristics and constituent habitat elements    |      |     |
|   | appropriate to the project assessment)              |      |     |
+---+-----------------------------------------------------+------+-----+
| 5 | Compares the distribution of potential effects      |      |     |
|   | (identified in 2) with the threatened and           |      |     |
|   | endangered species and designated critical habitat  |      |     |
|   | (identified in 4) and establishes, using the best   |      |     |
|   | scientific and commercial data available, that (a)  |      |     |
|   | exposure is improbable or (b) if exposure is        |      |     |
|   | likely, responses are insignificant, discountable,  |      |     |
|   | or wholly beneficial                                |      |     |
+---+-----------------------------------------------------+------+-----+
| 6 | Determination is based on best available scientific |      |     |
|   | and commercial information                          |      |     |
+---+-----------------------------------------------------+------+-----+