# August 30, 2000

** MEMORANDUM OF AGREEMENT**

**ENDANGERED SPECIES ACT**

**SECTION 7 PROGRAMMATIC CONSULTATIONS**

**AND COORDINATION**

**among**

**BUREAU OF LAND MANAGEMENT,**

**FOREST SERVICE,**

**NATIONAL MARINE FISHERIES SERVICE**

**and**

**FISH AND WILDLIFE SERVICE**

**Goal**

The goal of the Memorandum of Agreement (MOA) is to improve the
efficiency and effectiveness of plan and programmatic level section 7
consultation processes under the Endangered Species Act, and enhance
conservation of imperiled species while delivering appropriate goods and
services provided by lands and resources managed by the signatory
agencies.

**Purpose**

The purpose of this interagency Memorandum of Agreement (MOA) is to
establish a general framework for a "streamlined" (i.e., easier and more
effective) process for interagency cooperation among the Bureau of Land
Management (BLM), U.S. Forest Service (FS), U.S. Fish and Wildlife
Service (FWS), and National Marine Fisheries Service (NMFS) in the
exercise of their responsibilities under the Endangered Species Act of
1973, as amended (ESA; 16 U.S.C. 1531-1544) and the 1994 Memorandum of
Understanding on the conservation of species which are tending towards
federal listing (94-SMU-058), which all four agencies signed. In
particular, this MOA outlines guidance and procedures for section 7
consultations as well as consideration of candidate species conservation
in land management plans and other programmatic level proposals prepared
by the BLM and FS. The guidance and procedures outlined in this MOA will
enhance existing procedures for conducting section 7 consultations.
Nothing in this MOA is intended to amend 50 CFR part 402. This
streamlined process will provide a number of efficiencies, allowing the
agencies to better achieve compliance with the ESA and the regulations
at 50 CFR part 402 without altering or diminishing the agencies'
existing responsibilities under the ESA or its regulations. Although
consultation already occurs on land management plans and site-specific
land management activities, guidance is needed to ensure consistency and
efficiency. The result will be increased up-front coordination on
biological assessments including conservation measures for candidate,
proposed, and listed species and proposed and designated critical
habitat. It will also result in a shortened time frame for the
appropriate consultation response (a goal of 30 days or less for
concurrence letters and 90 days or less to complete formal consultation)
once an agreed to biological assessment has been received by the FWS or
NMFS. This agreement in no way alters the commitment of the action
agencies to consult at the site-specific level.

The term "action" as used in section 7 of the ESA includes land use
plans under the Federal Land Policy and Management Act (43 U.S.C. 1701
*et seq*.) and resource management plans under the Forest and Rangeland
Renewable Resources Planning Act (16 U.S.C. 1600 *et seq*.) as amended
by the Forest Management Act (16 U.S.C. 1600 *et seq*.).

The BLM and FS (action agencies) will consult and confer, as outlined in
the following sections, on land management plans, both during
development of a new, amended, or revised plan, and on an existing plan
if a new species is listed or critical habitat designated, or
significant new information becomes available, and, where appropriate,
consult on other programmatic level proposals (e.g., recreation program,
grazing program, riparian strategy), habitat management plans,
multi-year projects aggregated as a program, grouped permits or
activities, or plan objectives, standards and guidelines, such as the
Pacific Anadromous Fish Strategy (PACFISH) interim standards and
guidelines. The action agencies also agree to include candidate species
in biological assessments/evaluations provided during the plan
consultation/conference process.

The BLM, FS, FWS, and NMFS agree to promote the conservation of
candidate, proposed, and listed species and to informally and formally
consult/confer as specified in 50 CFR 402 on listed and proposed
species, and designated and proposed critical habitat during planning:
(1) To assure that activities implemented under these plans minimize or
avoid adverse impacts to such species and any critical habitat; (2) to
assure that such activities implemented under these plans do not
preclude future conservation opportunities; (3) to use, where possible,
formal conference procedures specified in 50 CFR 402 to avoid conflicts
between elements contained in plans and the requirements for
conservation of proposed species and proposed critical habitat; and (4)
to analyze the effects of the plan on candidate species pursuant to
agency planning regulations.

This MOA establishes interagency commitment to and guidance for the
following: (1) Early interagency communication, coordination,
consultation, and conferencing on candidate, proposed, and listed
species to take place prior to and during plan/program proposal
development; (2) consultations/conferencing on land management plan
adoption, revision, amendment and on ongoing plans where reinitiation is
required; (3) implementation guidance for plan and programmatic level
consultation; (4) efficiency through a consistent programmatic
interagency cooperative consultation process; (5) ensuring that ongoing
activities do not jeopardize listed species, result in the
destruction/adverse modification of designated critical habitat, or
result in unauthorized take during consultations on an existing land
management plan; and (6) consulting or conferencing on both land
management plans and other programmatic level proposals for species
listed or critical habitat designated since the adoption of a plan.

**Context of Agreement**

As part of their land management planning processes, the FS prepares
Land and Resource Management Plans and the BLM prepares Resource
Management Plans and, in the past, has also prepared Management
Framework Plans (hereinafter, these plans will be collectively called
\"plans\"). Plans identify general land-use purposes or allocations;
future conditions that are desired on specific lands; goals and
objectives for resource conditions on specific lands; and standards,
guidelines, or other mechanisms that establish the management framework
for all the activities conducted and allowed on lands managed by these
agencies. Plans are developed over a period of several years and
site-specific management actions are developed and carried out to
implement the plan.

Because a plan does not normally prescribe the specific timing and
location of expected land management activities, there is a significant
level of uncertainty associated with the potential environmental
consequences of plans. This uncertainty extends to effects on candidate,
proposed, endangered and threatened species and designated critical
habitat. Although the precise location and timing of site-specific
effects of management actions and land uses are not often known when a
plan is adopted, amended, or revised, BLM and FS, by signing this MOA,
agree to consult with FWS and NMFS so that future activities formulated
and allowed under the parameters of the plan are not likely to
jeopardize the continued existence of listed species or result in the
destruction/adverse modification of designated critical habitat.
Additionally, because of the conservation mandate of section 7(a)(1) of
the ESA, plans can be very helpful in recovery of listed species. The
action agencies, by signing this agreement, affirm that planning for
conservation of candidate, proposed, and listed species is key to the
accomplishment of the federal land stewardship role. Successful
implementation of this MOA will enhance plans and programmatic level
proposals by promoting the incorporation of conservation objectives and
guidelines for proposed and listed species.

Plans may be operational for a period covering many years, new species
may be added to the list of threatened and endangered species, or
significant new information may become available, triggering
reinitiation of formal consultation and the need for reevaluation of the
effects of plan implementation on listed or proposed species, and on
designated or proposed critical habitat. This provides an additional
impetus to cooperate under this MOA.

Under new FWS guidance issued on December 5, 1996 (61 FR 64481),
candidate species are those species for which FWS has on file sufficient
information on biological vulnerability and threat(s) to support
issuance of a proposed rule to list, but issuance of the proposed rule
is precluded by higher listing priorities. NMFS also maintains a list of
candidate species that are being considered for listing. Since it is
highly likely that most candidate species will become proposed and/or
listed during the life span of the plan or program under consultation,
it is prudent to receive conservation recommendations for candidates to
use in the development of alternatives during the NEPA process or
programmatic level consultations. These recommendations for candidate
species will facilitate development of objectives, standards and
guidelines, or conservation measures at the plan/programmatic level
which can help streamline future project level conferences/consultations
for these species when they acquire formal protection under the ESA. In
some cases this early coordination may avoid the need to list the
species.

**Scope**

The scope of this MOA includes Land and Resource Management Plans
prepared by the FS pursuant to the National Forest Management Act of
1976 \[16 U.S.C. 1601-1614\] and Resource Management Plans and
Management Framework Plans prepared by the BLM pursuant to the Federal
Land Policy and Management Act of 1976 \[43 U.S.C. 1701-1784\]. The MOA
may also be applied to other programmatic level proposals. These may
include, but are not limited to, a recreation or grazing program,
riparian restoration strategy, multi-year forest management activities,
recovery strategy or other proposals.

Elements of plans that will undergo section 7 consultation/conference
pursuant to this MOA include:

1\. Management goals, objectives, standards, and guidelines;

2\. Designation of special management areas, management area direction
and prescriptions, and designation of allowable resource uses;

3\. Broad-scale monitoring and evaluation requirements for listed,
proposed, and other species of concern; and

4\. Site-specific or forest-wide management decisions included in the
plan and/or Record of Decision.

**Consultation Procedures**

Action and consulting agencies agree to maintain and exchange
information on (1) the biology, ecology, distribution, and abundance of
threatened, endangered, proposed, and candidate species and proposed and
designated critical habitat and (2) planning schedules, status, and
priorities for the land management activities. Successful implementation
of this MOA depends on full cooperation and coordination. The BLM and FS
should have access to FWS and NMFS candidate species lists, proposals to
list species as threatened or endangered, proposals to designate
critical habitat, and recovery planning documents. Regular exchanges of
information examining the status, biology, and ecology of listed species
and their habitat needs should occur. Similarly, BLM and FS will
coordinate with FWS and/or NMFS on planning schedules and priorities
that will require a commitment of FWS and/or NMFS staff resources.

Coordination and consultation early in the planning process will result
in the identification of potential impacts to species and critical
habitat, allowing resource managers to make appropriate adjustments.
This early cooperation will help to ensure that species conservation is
achieved with a minimum of adverse impacts on proposed activities. When
plans or programs that may affect listed species and/or designated
critical habitat involves more than one planning area, it may be more
efficient to consult on ecosystem level strategies, species range wide,
or species-specific strategies under the jurisdiction of all the
agencies rather than on individual plans or site-specific activities.
The agencies may agree to address multiple plans as one consultation
package.

Action agencies will make a determination of effects through a
biological assessment/evaluation of the plan, the adequacy of
conservation measures, and the effects of the land-use allocation and
management direction on listed, proposed, and, as appropriate, candidate
species and proposed or designated critical habitat. This assessment
will determine whether consultation is needed, and if needed, whether
informal or formal consultation or conference is appropriate.

Action agencies will include appropriate protection and conservation
elements for listed, proposed, and candidate species and proposed or
designated critical habitat in land use plans, habitat management plans,
or in interim standards and guidelines that are consistent with land use
plans.

Consideration of these conservation elements will help resource managers
improve beneficial effects and avoid and minimize adverse effects at
subsequent planning and project levels. Projects that conform to the
protection and conservation elements (such as standards and guidelines)
developed through programmatic consultation are likely to receive a "not
likely to adversely affect" determination and concurrence or, at a
minimum, an expedited Biological Opinion from the consulting agency, in
the absence of new information that would change the environmental
baseline or effects determination, or other changed circumstances.

Action agencies will review all scientific and other information used in
the planning process to ensure that it is reliable, credible, and
represents the best scientific and commercial data available. Sources of
biological data will include, but are not limited to, recovery plans,
conservation assessments, conservation strategies, conservation
agreements, and scientific documents. This reflects the policy stated in
59 FR 34271 (July 1, 1994).

Action agencies will follow, where appropriate, the conference process
for candidate species when standards and guidelines for candidate
species conservation are included in programmatic documents. Inclusion
of candidate species recognizes that there is tremendous benefit in
early coordination between the agencies, saving time, effort and money.
If, or when, the species is listed, informal conferencing on candidate
species and formal conferencing on proposed species or on proposed
critical habitat accomplishes the following objectives: (1) Identifies
plan elements or ongoing activities that, if implemented, could
adversely affect species when listed or critical habitat when
designated; (2) provides the opportunity to modify the plan elements
and/or ongoing activities to remove the adverse effects and thus reduce
the likelihood that future activities would be in conflict with the ESA
after a species is listed; (3) identifies plan elements that
benefit/promote the conservation of proposed or candidate species or
proposed critical habitat; and, (4) if done under formal conference
procedures, provides a conference opinion for proposed species that can
be confirmed as a biological opinion once the species is listed; and (5)
identifies measures to help avoid a jeopardy determination.

Following the procedures and measures prescribed by this MOA will
promote the conservation of species, and should result in minimizing
incidental take of listed species as a result of implementing a planned
activity. Incidental take statements must be issued for any action for
which such take is anticipated. When sufficient information is available
to anticipate the amount or extent of take incidental to plan or program
implementation, the provisions of sections 7(b)(4) and 7(o)(2)
(exemptions from takings) will apply to consultations conducted on a
plan or programmatic level proposal. If incidental take is not
anticipated for the activities implementing a plan or programmatic level
proposal, an incidental take statement will state that conclusion.
Subsequent "tiered" consultations performed on individual project
activities, groups of similar projects, or annual programs, where
specific effects on species can be determined within the context of a
local geographic area, will contain incidental take statements
identifying the anticipated amount of incidental take from the
site-specific action under consultation.

When action agencies formally consult on existing plans they are
required to ensure that any ongoing activities, including site-specific
activities, resulting from or consistent with plans, do not result in
any irreversible or irretrievable commitment of resources that have the
effect of foreclosing the formulation or implementation of any
reasonable and prudent alternatives that could result from the
programmatic consultation. This will be accomplished by conducting early
and complete agency collaboration, followed by a timely and coordinated
consultation process.

Compliance with section 7(d) of the ESA will be assured at the plan
level because the agencies agree to conference on a plan as soon as a
species is proposed for listing. If the conference opinion adequately
addresses plan level effects and the conservation of the species, then
the conference opinion should allow for an easy conversion to a
biological opinion or concurrence when the species is listed. Absent any
change in circumstances, no further consultation would be required.
Furthermore, the action agencies will implement a logical and documented
process to jointly \"screen\" site-specific projects prior to
reinitiation of plan consultations following a new listing (if
conferencing has not been completed). The screening process should
identify any projects which could result in an irreversible or
irretrievable commitment of resources that might foreclose the
formulation or implementation of reasonable and prudent alternatives to
avoid jeopardy. These projects will be modified, suspended, or halted
during the programmatic consultation. The final determination of section
7(d) compliance will be the action agency's responsibility, but it is
expected that close coordination with the consulting agencies will
occur.

**Procedural Guidance**

Attached is implementation guidance for carrying out consultations at
the plan and programmatic level. The agencies agree to use this guidance
when implementing the terms of this memorandum. From time to time, the
agencies may find it necessary or advisable to alter the procedures
described in the attachment; if this occurs, a revised procedural
guidance reflecting changes agreed to by the agencies may be issued with
the approval of the heads of the four agencies.

This MOA and guidance does not supersede or preclude the use of the May
31, 1995, interagency agreement for streamlining section 7 consultation
in the Pacific Northwest. Nothing in this MOA constrains the obligations
of the agencies in carrying out their authorities under applicable laws.
There is no effect on non-federal interests.

**Authority**

Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544)

National Forest Management Act of 1976 (16 U.S.C. 1601-1614)

Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-1784)

MOU on the conservation of species that are tending towards federal
listing (94-SMU-058), January 25, 1994

**Funding and Resources**

Nothing in this MOA shall be construed as obligating any of the parties
to the expenditure of funds in excess of appropriations authorized by
law. It is understood that the level of resources to be expended under
this MOA will be consistent with the level of resources available to the
agencies to support such efforts.

**Effective Date**

This MOA is effective immediately. Its provisions will remain in effect
until it is amended, superseded, or revoked, whichever occurs first.

**INTERAGENCY MEMORANDUM OF AGREEMENT FOR**

**PROGRAMMATIC ENDANGERED SPECIES ACT SECTION 7 CONSULTATIONS**

[/s/ Tom Fry]{.underline}

Tom Fry

Director, Bureau of Land Management

[/s/ Jamie Rappaport Clark]{.underline}

Jamie Rappaport Clark

Director, U.S. Fish and Wildlife Service

[/s/ Mike Dombeck]{.underline}

Mike Dombeck

Chief, U.S. Forest Service

[/s/ Alan Risenhoover]{.underline}

Alan Risenhoover

Assistant Administrator for Fisheries

National Oceanic and Atmospheric Administration

**Implementation Guidance: Streamlining Programmatic Consultation **

**for BLM/FS Land Use Plans and Programs**

I. Introduction

This document specifies the level of management commitment, direction,
and support, and identifies the critical elements necessary for
successful implementation of the streamlined process of ESA section 7
consultation on land-use plans and their programs as established in the
July 27, 1999, MOA by the BLM, FS, NMFS and FWS. Implementation of the
following critical elements should help achieve this goal:

C introduction of the process through interagency workshops

C development of consultation outlines to address specific consultation
streamlining needs

C early coordination between the land management and consulting agencies
when entering into the consultation process

C establishment of a dispute resolution process

C establishment of procedures to evaluate and refine the process

The agencies will ensure these critical elements are met. However, this
process is designed to recognize the inherent flexibility and adaptive
approach necessary to meet the critical elements that will enhance the
consultation/conference process while simultaneously meeting
area-specific needs.

II\. Overall Approach

The specific intent of streamlined consultation procedures and guidance
is two fold:

1\) To further the conservation of listed, proposed, and candidate
species by utilizing applicable plans and guidance to provide increased
beneficial effects, avoid or minimize adverse effects and reduce levels
of incidental take; and

2\) to enable the section 7 process, including review, analysis and
documentation, to proceed as quickly and efficiently as possible.

The streamlined consultation process involves three basic phases:

Phase 1: Interagency participation in early planning, program guidance
meetings, and the review of preliminary determinations of effect.

Phase 2: Preparation of biological assessments (BAs) or biological
evaluations (BEs) by the action agencies using the working group,
technical support group, and if necessary, issue resolution team.

Phase 3: Preparation of biological opinions (BOs) or concurrence letters
by the consulting agencies.

III\. Workshops

The agencies will provide interagency workshop opportunities to guide
streamlining consultation efforts. The workshops will be tailored to
each region, highlighting national as well as local issues, and designed
to provide guidance and recommendations for improving consultation,
coordination, and interagency working relationships.

Workshops will emphasize the benefits and process necessary for
implementing improved consultation and enhanced working relationships
between the consulting and action agencies. These workshops will be
scheduled for biologists/botanists, line officers, and related planning
and resources staff who are regularly involved in completing the
interagency consultation process. It is expected that within one year of
implementation of the MOA all regions will complete workshops.

Workshops will be conducted by cadres of biologists and land managers
with expert knowledge in section 7 consultation efforts.

IV\. Management Support and Direction: Development of a Consultation
Agreement

To accomplish the objectives described in the MOA, the action agencies
and consulting agencies agree to develop and apply consultation
agreements for programmatic consultations conducted under this guidance
that do the following:

C Determine the scope of the planned action, the appropriate level of
signature authority (REGION, FOREST, AREA) and scale of analysis
necessary to accomplish programmatic consultation.

C Designate staff and responsibilities

C Determine the necessary time frames

C Initiate early interagency staff coordination

C Establish a dispute resolution process in keeping with that outlined
above

An example is attached.

V. Scope

The action agencies will clarify the priority list of activities to be
covered in the consultation effort. They should identify, for instance,
which actions or plans, which administrative units or geographic areas,
and suggest which species or critical habitats must be covered within
the designated time frame, as well as any other appropriate issues.

VI\. Staffing

The implementation of this process should not require additional
staffing. Rather, this approach is designed to utilize staff that are
already interacting with their interagency counterparts, but in a more
efficient way to achieve the goals of streamlining programmatic
consultation efforts.

VII\. Process for Working Groups and Framework for Dispute Resolution

The following working groups will be established in a manner that will
facilitate implementing the MOA:

[Program Level ESA Working Groups]{.underline} - Interagency teams of
biologists responsible for ESA coordination and oversight of
determination of effects at the plan/program level. The working group,
which may consist of as few as two individuals (e.g., FWS biologist and
FS biologist), is the basic operational unit of the streamlined
programmatic consultation process. The group is responsible for ensuring
that the best available scientific and commercial information on listed,
proposed, and candidate species, or proposed or designated critical
habitat, is considered in the decision making process, and facilitating
achievement of ESA compliance in the shortest time possible. One team
member should be identified as a logistical leader to schedule and
facilitate meetings, etc. An individual should also be given the
responsibility for tracking the consultation process and reporting
outcomes to the regional technical support contact (see Regional/State
Technical Working Group). Teams will communicate on a regular basis and
meet as needed to facilitate the interagency coordination on ESA
compliance. It is expected that most, if not all, potentially
contentious ESA issues will be discussed and resolved at this level.
Findings made in the Biological Assessment and other group decisions
will be made by consensus.

Working group members may include Forest or BLM District/Resource Area
wildlife or fisheries biologists and/or botanists, FWS Field Office
wildlife or fisheries biologists and/or botanists, and NMFS biologists.
Specific representation may vary by forest or resource area,
administrative unit, or species involved, but these teams must have
applicable agency representation to ensure that consensus can be
achieved among the agencies involved in the MOA. For example, these
teams could be established for each Forest or BLM District/Resource
Area, or groups of Forests or BLM Districts/Resource Areas based on
ecological provinces, watersheds, common issues, species, etc.

These teams will provide input to the design of proposed
plans/programmatic activities to incorporate species habitat needs,
identify programmatic proposals that may result in adverse impacts to
species and critical habitat, and screen ongoing activities to ensure
that reasonable and prudent alternatives to avoid jeopardy are not
foreclosed.

[Local Issue Resolution Working Groups]{.underline} - Interagency teams
of decision makers at the Forest, BLM District/Resource Area, or state
levels for other agencies, responsible for first level dispute
resolution (Forest Supervisors, BLM District/Area Managers, FWS State
Supervisors, NMFS designated supervisors). These teams would normally
meet on an* ad hoc* basis to resolve issues elevated from the program
level working group. Most effective use of these working groups will
include early guidance on priorities, expectations, and policy as well
as support for staffing. These teams could also be useful for working
out coordination issues to help gain efficient use of program level
working groups. Specific team representation depends upon the agency
administrative units involved in the issue.

[Regional/State Issue Resolution Working Group]{.underline} -
Interagency teams of regional or state agency heads, i.e., the Regional
Forester, BLM State Director, FWS Regional Director, and NMFS Regional
Director. These teams will meet on an *ad hoc* basis to resolve issues
elevated from the Local Issue Resolution Working Groups. Specific team
representation depends upon the agency administrative units involved in
the issue.

[Regional/State Technical Support Working Group]{.underline} - In
addition to the three level teams, interagency regional experts will be
available for technical support to the other working groups. These
individuals may consist of species biology experts, planners, program
management experts, ecologists, etc. and are responsible for the overall
technical oversight during the consultation process. This core technical
support working group should meet on a regular basis to ensure that the
process is functioning as intended. This working group may also have to
meet on an* ad hoc *basis to respond to specific technical issue
questions raised by the other working groups or enlist the support of
other *ad hoc *members to provide additional expertise.

[National Issue Resolution Working Group]{.underline} - Interagency
teams of appropriate representatives of the FS, BLM, FWS, and NMFS
responsible for resolution of issues not resolved by the Regional/State
Issue Resolution Working Group. These teams will be appointed by the
agency heads.

VIII\. Time frames

The agencies have agreed to commit to completion of informal
consultation within 30 days and formal consultation within 90 days.
However, circumstances may dictate that the individual units may
establish time frames that are appropriate to a specific action by
mutual consent.

IX\. Early Coordination

Early interagency coordination is the key to the streamlining
consultation process. Coordination with consulting agencies early in the
planning process, before initiation of consultation, will result in the
identification of potential impacts to species and critical habitat.
This will allow resource managers to make appropriate adjustments in
proposed activities during the design phase. This early coordination
will enable proposed plans/programmatic activities to incorporate
species habitat needs, and will facilitate and expedite the consultation
process. Issues to be resolved include:

1\. Section 7 (d) of the ESA

Section 7 (d) of the ESA states that federal agencies " \...shall not
make any irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of foreclosing the
formulation or implementation of any reasonable or prudent alternative
measure" after the initiation of consultation. When action agencies
formally consult on existing plans the agencies are required to ensure
that any ongoing activities, including site-specific activities,
resulting from or consistent with plans, do not result in any
irreversible or irretrievable commitment of resources that have the
effect of foreclosing the formulation or implementation of any
reasonable and prudent alternatives that could result from the
programmatic consultation.

Compliance with section 7(d) of the ESA will be assured at the plan
level because the agencies agree to conference on a plan as soon as a
species is proposed for listing. If the conference opinion adequately
addresses plan level effects and the conservation of the species, then
the conference opinion should allow for an easy conversion to a
biological opinion or concurrence when the species is listed. Absent any
change in circumstances, no further consultation would be required.
Furthermore, the action agencies will implement a logical and documented
process to jointly \"screen\" site-specific projects prior to
reinitiation of plan consultations following a new listing (if
conferencing has not been completed). The screening process should
identify any projects which could result in an irreversible or
irretrievable commitment of resources that might foreclose the
formulation or implementation of reasonable and prudent alternatives to
avoid jeopardy. These projects will be modified, suspended, or halted
during the programmatic consultation. The final determination of section
7(d) compliance will be the action agencies\' responsibility, but it is
expected that close coordination with the consulting agencies will
occur.

2\. Species coverage

Agencies will consult/conference on listed species and designated
critical habitat, proposed species, proposed critical habitat, and
include candidate species as a part of the analysis of effects.

3\. Agreement on the information needs for the development of the BA/BE

The program level working groups will review and make available current
information on candidate, proposed and listed species and proposed or
designated critical habitat within the planning areas. This should
include information on status, population trends, response to
management, disturbance regimes needed, interagency and state
coordination measures required, and conservation opportunities.

Land management plan standards and guidelines (S&G\'s); programmatic
recovery or conservation strategies (such as the Northwest Forest Plan,
PACFISH, INFISH and the longterm red-cockaded woodpecker strategy);
recovery plans; or applicable biological opinions from other
consultations can serve as the basic foundation for programmatic
consultations using the streamlined process. Land management
plans/programs incorporating conservation S&G\'s will be more likely to
provide beneficial effects to species. The basic goal is that land
management plans/programs offering the protection of these S&Gs would
not jeopardize listed or proposed species, or move candidate species
closer to listing. Furthermore, to achieve the most conservation
benefits from the planning process, the program level working group
should identify programmatic conservation strategies helpful in
formulating plan alternatives to minimize or avoid adverse effects to
listed, proposed, or candidate species and, where possible, to assist in
the conservation and recovery of these species per the Interagency MOU
of 1994. These alternatives should be evaluated and reformulated into a
consensus description of the proposed Federal action (the land
management plan or program plus any additional agreed upon measures
needed to work toward conservation of these species). For existing plans
or programs, these conservation measures may be within the scope of the
plan or program or may require plan amendment or modifications of the
program. This process will comply with applicable laws and regulations
for all agencies.

Agencies must agree on the level of information necessary in the BA/BE
to be able to render a BO of sufficient detail. An agreed upon BA/BE is
critical to ensure that the streamlined consultation process works and
that the identified time frames are met. The beginning date for
consultation is the day a BA/BE that is agreed upon by all members of
the team is received by the consulting agency, accompanied by a written
request for consultation or conference. It is imperative that the action
agency submit only final BAs/BEs that all cooperating agencies deem
adequate.

4\. Agreement on the effects analysis and determination

The Program level working groups will identify parameters, or criteria
that normally would result in \"no effect\", \"not likely to adversely
affect\", \"likely to adversely affect\" and \"likely to jeopardize\"
determinations on plan level effects analysis. This will be extremely
useful in sorting, screening and reaching consensus on the BA/BE
\"determination of effects\". This process will allow the team to reach
rapid agreement on many aspects of the plan. More problematic elements
(certain Standards and Guidelines (S&Gs), etc.) will then become the
team\'s focus. If these problem areas need additional modification in
the plan, these changes may be outlined in the description of action and
the BA/BE. For example, if an additional objective or S&G is needed in
an existing plan, the action to be consulted on would consist of the
proposed new measure, in the context of the current S&Gs, and the
actions needed to amend the plan and adopt the new measure. If the team
cannot agree on the adequacy of the BA/BE, on the determination of
effects, or information needed to complete the BA/BE, etc., the issue
resolution process will be initiated.

5\. Biological Assessment preparation

All anticipated environmental effects and mitigation and monitoring
requirements will be disclosed in the BA/BE. This includes analysis of
effects on listed, proposed, or candidate species or designated or
proposed critical habitat from the plan/program analyzed.

ESA compliance is required regardless of the level of NEPA documentation
required for a plan or program. A BA/BE for a plan or program that has
an EA rather than an EIS, could be very short and simple, but the
Program Level ESA Working Group should be used to help identify the
level of documentation needed and appropriateness of the determination
for all plan/program BA/BEs. Coordination requirements and conservation
recommendations must be identified early in the decision making process
so they can be incorporated into the plan/program under consultation,
incorporated later as a plan amendment, or clarified as program
direction.

The agreed upon elements of a BA/BE are:

a\. description of the action: reference the description of the proposed
action section of the plan/program (do not duplicate it in the BE/BA,
but incorporate by reference any needed documents and include then in
the consultation package);

b\. description of the area that may be directly or indirectly affected
by the action: if possible, refer to the appropriate action(s) of the
plan/program rather than duplicating it in the BE/BA;

c\. description of any listed, proposed or candidate species, or
designated or proposed critical habitat that may be affected;

d\. description of the manner in which the action may affect listed,
proposed or candidate species; or proposed or designated critical
habitat (direct effects);

e\. analysis of indirect and cumulative effects;

f\. analysis of effects of interrelated and interdependent actions;

g\. analysis of effects of interrelated and interdependent actions;

h\. determination of effects statement; and

i\. may include any measures to minimize incidental take, as well as
specifying measures to handle or dispose of any individuals actually
taken.

The action agency will prepare a BA/BE based on the above agreements in
the cooperative spirit of the MOA and will submit it to the consulting
agency (a joint meeting between the action agencies and the consulting
agencies may be the most efficient way to develop these BA/BEs). The
consulting agency will then review the BA/BE for adequacy within two
weeks of receipt. Because of the early interagency coordination
described above, this is not likely to result in the identification of
substantial issues. However, if the BA/BE is deemed inadequate, the
consulting agency will notify the action agency in writing detailing
specific issues and indicating that the time frame for the formal
consultation or concurrence letter has not started.

6\. Biological Opinion Preparation

The consulting agency will provide a draft of their consultation
response for action agency review no later than two weeks before the end
of the agreed upon consultation period. Any reasonable and prudent
measures and terms and conditions for incidental take should be
discussed and agreed to by the interagency consultation team prior to
issuance of a final BO or conference opinion.

X. Dispute Resolution Process

The use of interagency working groups and a National Issue Resolution
working group are designed to ensure that any disagreements on
completeness of the BA/BE, determination of effects, or contents of a
draft BO or conference opinion are resolved in a coordinated and timely
manner.

If the Program Level ESA Working Group cannot reach consensus on what
information is needed to complete consultation/conference on a
plan/program, determination of effects, the adequacy of the plan
standards and guides, compliance with existing guidance, conservation
strategies, etc., a review will be conducted by the Local Issue
Resolution Working Group. The employment of regional section 7
consultation specialists may be useful in resolving such disputes. If
the Local Issue Resolution Working Group cannot resolve the issue or if
there is disagreement between one of the agencies and the consensus
findings of the Program Level ESA Working Group (team is in agreement) a
Regional/State Issue Resolution Working Group review will be initiated.
If this group cannot resolve the issue, it will be elevated to the
National Issue Resolution Working Group.

All issue resolution working group (or panel) reviews should be
initiated by request of the applicable working group, or a specific
agency. The request should include: (1) A concise summary of issues in
dispute and decisions that need to be made; (2) agency position
statements on each of the issues; (3) all supporting rationale and
documentation for consideration; and (4) a brief chronology of key
actions taken to resolve the dispute. Resolution should be pursued as
quickly as possible. The National Issue Resolution Working Group
decisions are the final and binding resolution of disputes. Issue
resolution working groups are encouraged to use the assistance of the
Regional/State Technical Support Working Group in the resolution
process.

Each stage of the issue resolution process will not exceed 15 days.

XI\. Evaluation and Refinement

To facilitate a process of the utmost utility to the agencies, The
Regional/State Technical Support Working Group should implement measures
to track the progress of the process described above and propose any
refinements necessary to further the goals of the MOA to agency heads.

**Memorandum of Agreement **

**on Section 7 Programmatic Consultations and Coordination **

**Among **

**the Fish and Wildlife Service, Forest Service, **

**Bureau of Land Management, and National Marine Fisheries Service**

**Executive Summary**

October 10, 2000

**Background**:

In1994, the 9^th^ Circuit Court of Appeals ruled in *Pacific Rivers
Council vs. Thomas*, that Forest Service Land and Resource Management
Plans "constitute continuing agency action requiring consultation under
7(a)(2) of the Endangered Species Act." As it had not been common
practice to consult on LRMPs or BLM's Land Management Plans prior to the
Court's ruling, the decision signified a substantial new workload for
both action agencies (BLM, FS) and the consulting agencies (FWS, NMFS).
The four agencies determined that a process was needed in order to
better facilitate the increased programmatic consultation workload in a
constructive and timely manner. The MOA went into effect on August 30,
2000.

**Purpose**:

-   To establish a general framework for a "streamlined" (i.e., easier
    and more effective) process for interagency cooperation among the
    agencies in the exercise of their responsibilities under the
    Endangered Species Act.

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-   To provide guidance and procedures for section 7 consultations as
    well as consideration of candidate species in land management plans
    and other programmatic level proposals prepared by the BLM and FS.

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-   To allow the agencies to better achieve compliance with the ESA
    without altering or diminishing the agencies' existing
    responsibilities

**Goals**:

-   To improve efficiency and effectiveness of plan and programmatic
    level section 7 consultation processes

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-   Enhance conservation of imperiled species while delivering
    appropriate goods and services provided by signatory agencies

**Procedural Guidance**:

-   The agencies agree to use the streamlining guidance when
    implementing this MOA

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-   If the agencies may find it necessary or advisable to alter the
    procedures described in the attachment, a revised procedural
    guidance may be issued

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-   Nothing in this MOA constrains the obligations of the agencies in
    carrying out their authorities under applicable laws

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-   This MOA is effective immediately, and will remain in effect until
    amended, superseded, or revoked

**Agency Agreements**:

The agencies agree to promote the conservation of candidate, proposed,
and listed species and affirm that planning for conservation of these
species is key to the accomplishment of the federal land stewardship
role.

During the planning processes, the agencies will: (1) consult or confer
on listed and proposed species, and designated and proposed critical
habitat to assure activities minimize or avoid adverse impacts to such
species and any critical habitat and do not preclude future conservation
opportunities; (2) use, where possible, formal conference procedures to
avoid conflicts between plans and conservation of proposed species and
proposed critical habitat; (3) analyze the effects of plans on candidate
species pursuant to agency planning regulations and use conservation
recommendations for candidates in the development of alternatives during
the NEPA process or programmatic level consultations.

The agencies also agree to maintain and exchange information on the
biology, ecology, distribution, and abundance of threatened, endangered,
proposed, and candidate species and proposed and designated critical
habitat, and planning schedules, status, and priorities for the land
management activities.

**Consultation Guidance**:

The agencies will informally and/or formally consult and confer on: (1)
land management plans, both during development of a new, amended, or
revised plans; (2) existing plans if a new species is listed or critical
habitat designated, or significant new information becomes available;
and, (3) other programmatic level proposals, as appropriate.

**MOA Implementation Guidance**:

To insure successful implementation of the streamlined process, the
agencies will: (1) introduce the process through interagency workshops;
(2) develop consultation agreements to address specific consultation
streamlining needs; (3) initiate early coordination between the land
management and consulting agencies; (4) establish a dispute resolution
process, and, (5) establish procedures to evaluate and refine the
process.

The MOA outlines 3 phases to the streamlined process. Phase 1 includes
interagency participation in early planning, program guidance meetings,
and the review of preliminary determinations of effect (early
coordination). Phase 2 involves preparation of biological assessments
(BAs) or biological evaluations (BEs) by the action agencies, and phase
3 includes the preparation of biological opinions (BOs) or concurrence
letters by the consulting agencies.

**Consultation Agreements**:

Interagency consultation agreements will be developed and applied to
accomplish the objectives of the MOA that determine the scope of the
planned action, the appropriate level of signature authority, and scale
of analysis; designate staff and responsibilities; determine the
necessary time frames; initiate early interagency staff coordination;
and establish a dispute resolution process.

**Early Coordination**:

Early interagency coordination is the key to the streamlining
consultation process, and is intended to allow resource managers to make
appropriate adjustments in proposed activities during the design phase,
enable proposed plans/programmatic activities to incorporate species
habitat needs, and facilitate and expedite the consultation process.

**Working groups**:

Streamlining is facilitated through the establishment of working groups.

[Program Level Working Groups]{.underline} - responsible for
coordinating and overseeing effects determinations, ensuring that the
best available scientific and commercial information is considered in
the decision making process, identifying proposed actions that may
adversely affect species and critical habitat, providing input to the
design of proposed plans/programmatic activities to incorporate species
habitat needs, screening ongoing activities to ensure alternatives to
avoid jeopardy are not foreclosed, and facilitating achievement of ESA
compliance in the shortest time possible.

[Local Issue Resolution Working Groups]{.underline} - the first level
dispute resolution. They provide early guidance on priorities,
expectations, and policy as well as support for staffing, and work out
coordination issues to help gain efficient use of program level working
groups.

[Regional/State Issue Resolution Working Groups]{.underline} - the
second level of dispute resolution. They meet on an ad hoc basis to
resolve issues elevated from the Local Issue Resolution Working Groups.

[Regional/State Technical Support Groups]{.underline} - provide
technical support to the other working groups and are responsible for
overall technical oversight during the consultation process.

[National Issue Resolution Working Groups]{.underline} - responsible for
resolution of issues elevated by the Regional/State Issue Resolution
Working Group.

**Dispute Resolution Process**:

The working group process is designed to ensure disagreements are
resolved in a timely manner. Unresolved issues are to be elevated in
writing to the appropriate working group for consideration. Each stage
of the issue resolution process will not exceed 15 days.

**Timelines**:

Once the agencies agree on the BA/BE, informal consultation will be
completed within 30 days and formal consultation within 90 days. As
appropriate, individual units may establish alternative timelines by
mutual consent.

**Tracking Implementation**:

Measures will be implemented to track the progress of the process and to
propose refinements necessary to further the goals of the MOA.