Pilot Section 7

Consultation

Process for Timber

Harvest Right-of

Way Applications

by Ed Lorentzen

California State Office (CA-930)

Background

Several California BLM Field Offices

receive recurring permit applications

for which the principal BLM action

is issuance of a right-of-way grant

authorizing the applicant to use an

existing road for a commercial purpose (e.g., haul timber from private

lands). Under Section 7 of the

Endangered Species Act (ESA),

BLM is required to consult with the

Fish and Wildlife Service (FWS) or

National Marine Fisheries Service

(NMFS) on discretionary actions

that may affect listed threatened or

endangered species. In determining

whether a proposed action “may

affect” a listed species, BLM is

required to consider both the direct

and indirect effects of the action.

Thus, consultation with FWS (on

terrestrial species) or NMFS (on

anadromous species) is required

when either the public or private

component of the proposed action

may affect a listed species. Because

the biological opinions issued by

FWS or NMFS often contain nondiscretionary terms and conditions,

BLM is in a quandary as to how to

enforce the terms and conditions

that relate to the private component of the action (e.g., timber

harvest activities on the privately

owned lands).

Discussion

In an effort to expedite the issuance

of commercial haul rights-of-way

permits in situations where the

principal effect on listed species is

from harvesting timber on privately owned lands, BLM recently

met with staff from NMFS, the

California Department of Forestry

(CDF), and federal agency legal

counsel to develop a mutually

acceptable process for ESA compliance. In California, all timber

harvest activities require an

“applicant” (land owner or timber

company) to file a Timber Harvest

Plan (THP) with CDF. Given this

state agency regulatory authority

over the private component of

the action and the willingness of

CDF to cooperate in the ESA

consultation process, the following process was agreed to for all

rights-of-way applications involving listed anadromous salmonids.

(The FWS has not yet committed

to this process for the terrestrial

and aquatic species over which they

have administrative jurisdiction.)

ESA CONSULATION PROCESS

FOR BLM RIGHTS-OF-WAY

PERMIT APPLICATIONS

1. For all THPs that are within

the range of a listed salmonid,

CDF will condition the THP

to achieve compliance with

Section 9 of the ESA. This can

be accomplished through Section

7 of the ESA if the project has a

federal nexus (e.g., BLM rightsof-way) or through Section 10(a)

of the ESA if the project requires

incidental take authorization and

does not have a federal nexus.

THPs requiring federal access

will be flagged and sent to the

NMFS and BLM for review to

facilitate Section 7 compliance

in relation to salmonids.

2. If the review concludes that

“take” of a listed salmonid will

likely occur as a result of the

private component of the action,

the NMFS, working through an

Interdisciplinary Process with the

CDF, will develop minimization

measures to reduce the anticipated level of take. The THP

will be modified to include these

measures.

3. For THPs requiring federal

access, the applicant will request

a road rights-of-way permit from

the BLM, and it will review

both the THP and effects of the

action occurring on public land.

For those THPs that may affect

listed salmonids, the BLM will

complete a Biological Assessment

(BA) for the completed action

and submit it to the NMFS.

4. If “take” of a listed salmonid is

anticipated from either the private or public land components

of the action, the NMFS will

issue a Biological Opinion (BO)

with terms and conditions. 

If “take” is anticipated from the

private land action only, the BO

will contain a single term and

condition requiring the BLM to

suspend the rights-of-way permit

in the event elements of the

THP that relate to incidental

take of listed salmonids (i.e.,

minimization measures or standard clauses) are violated.

If incidental take of a listed

salmonid is anticipated for the

public land component, terms

and conditions will be issued to

minimize take for that component of the action.

5. Monitoring of the THP and

rights-of-way permit will occur.

The CDF will monitor the

THP and if violations occur,

RESOURCE NOTES

NO. 43 DATE 09/18/00

Range

Threatened &EndangeredSpecies
will notify the NMFS and

BLM. The BLM will then suspend the rights-of-way permit

per applicable regulations.

Independent of CDF monitoring, the BLM will monitor the

public land component of the

right-of-way permit, and if violations of the permit occur relative

to that part of the action, BLM

will suspend the rights-of way

permit per applicable regulations.

6. Post Action Inspections (or

close-outs) will occur.

Post Action Inspections (or

close-outs) will be conducted to

determine the final condition of

resources once the action has

been completed. This will be

implemented to ensure all necessary actions have been completed

prior to the rights-of-way permit or THP expiration. If the

post-action inspections identify problems, then the applicant

will be responsible for any needed corrective measures. 

Conclusion

The process described above is

expected to expedite ESA compliance on some, but not all, of the

rights-of-way applications BLM

receives that involve listed threatened or endangered species. BLM’s

Arcata Field Office is currently pilot

testing this process with CDF and

NMFS on THPs in northwestern

California. The ESA compliance

process developed for commercial

haul rights-of–way may be applicable to other consultations in which

the primary effects to listed species

are associated with the private component of the action – if a State

agency has sufficient regulatory

authority to condition the permit

and it is willing to cooperate in the

Federal Section 7 consultation.

Contact

Ed Lorentzen

California State Office, BLM

2800 Cottage Way, Room W-1834

Sacramento, CA, 95825-1886

phone: (916) 978-4646

fax: (916) 978-4657

email: elorentz@ca.blm.gov

Range

Resource Notes are intended to be early

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experience of the author and has not been peer-reviewed. Conclusions

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