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United States Department of Agriculture Forest Service |
United States Department of Interior Bureau of Land Management |
United States Department of Interior Fish & Wildlife Service |
File Code: 2670(FS)/6840(BLM) (OR-931)P Date: January 27, 1998
Route To: BLM-Instruction Memorandum No. OR-98-28
Subject: Section 7 Coordination—Conference for Bull Trout
To: USDA Forest Service, Forest Supervisors, Regions 1, 4, and 6; Klamath and
Columbia River Basins
USDI Bureau of Land Management, District Managers, WA/OR, ID, and MT;
Klamath and Columbia River Basins
USDI Fish and Wildlife Service Project Leaders, WA, OR, ID, and MT; Klamath
and Columbia River Basins
THIS LETTER REPLACES THE PREVIOUS DIRECITON OF OCTOBER 20, 1997
I. INTRODUCTION
In the June 13, 1997 Federal Register (Vol. 62, No. 114) the bull trout was proposed for listing; no critical habitat was proposed at this time. It is important the USDA Forest Service (FS), the USDI Bureau of Land Management (BLM) and USDI Fish and Wildlife Service (FWS) meet their section 7 responsibilities under the Endangered Species Act (ESA) for this proposed species. For proposed species, each Federal agency is required to confer with the FWS on any actions which are “likely to jeopardize the continued existence of any species proposed to be listed.. or result in the destruction or adverse modification of critical habitat proposed to be designated for such species.” (50 CFR 402.10.) Once a species is listed, consultation is required for actions that may affect listed species or critical habitat (50 CFR 402.14).
This memorandum sets forth interagency coordination agreements to ensure that the agencies’ responsibilities are met for proposed species. A further goal is to efficiently prepare for potential listing of the bull trout and the agencies’ responsibilities to consult on actions that may affect listed species or designated critical habitat. Both programmatic actions and project level actions of the FS and BLM will be considered. The programmatic actions are the FS Land and Resource Management Plans (LRMPs), and the BLM Resource Management Plans (RMPs), hereinafter referred to collectively as the LRMPs. Project level actions are site-specific actions undertaken by the agencies. This approach applies to those FS and BLM lands in the Klamath and Columbia River Basin.
II. CONFERENCE PROCESS
The FWS Regions 1 and 6, FS Regions 1, 4, and 6 and BLM in Idaho, Montana, Washington and Oregon will approach the conference at two scales. The first is the large scale, analogous to the area of the distinct population segments (DPS) of bull trout designated in the proposed rule. This would include evaluating the LRMPs as amended by the Interim Strategies for Managing Anadromous Fish-Producing Watersheds in Eastern Oregon, Washington, Idaho, and Portions of California (PACFISH), and as amended by the Inland Native Fish Strategy (INFISH). In addition, in Oregon the LRMP level evaluation will consider Warner, Lost River and short nose sucker and critical habitat.
The second scale is more local, analogous to the sub-populations described in the proposed rule to list bull trout. It involves conference at the action and watershed level. This process builds on the existing consultation direction outlined in the “Streamlining Consultation Procedures under Section 7 of the ESA” (2/26/97), where applicable (also referred to as the streamlining guidance). In addition, should critical habitat for bull trout be proposed, a conference process may also need to be developed to address that issue; it is not addressed in this memorandum.
To most efficiently prepare for potential listing of bull trout, the agencies have agreed to begin conference on LRMPs and site specific actions, existing or planned in a watershed, that may affect bull trout. Conference at this level of effect is not required by the ESA, but is being undertaken to facilitate ESA compliance if listing of the bull trout occurs. The strategy outlined here will be implemented to meet this goal. The process for conference at the two level s is described below.
The FS and BLM will prepare a programmatic Biological Assessment (BA) addressing current LRMPs as amended by PACFISH or INFISH and the eastside screens. The BA will also include the best scientific information available to conserve bull trout habitat in the Klamath and Columbia River Basins. Conferencing at this level allows an opportunity to evaluate program impacts to bull trout, as well as trends towards recovery of the species. A BA Team (Team) has been established to develop the BA, including FS and BLM representatives. This Team will coordinate with the FWS in developing the BA, through development of an initial, agreed-upon outlines for the BA, and through regular meetings or conference calls to discuss the progress of the document. The FWS will also provide information for the BA regarding the status of bull trout. In addition, the FS, BLM and FWS will work together in developing the analysis and determination of effects for the programmatic BA. The tentative due date for the final joint agency BA is February, 1998, and for the formal conference opinion is March, 1998.
Components of the LRMPs which will be addressed in terms of the protection provided for bull trout will include: land allocation; standards and guidelines; goals and objectives; production levels of goods and services; key and priority watersheds; and plan implementation.
Some of the programmatic issue which will be addressed in the conference include: 1) evaluating the level of protection for bull trout provided by the key/priority watershed designations; 2) evaluating the level of protection for bull trout provided by the standards and guidelines/goals and objectives in PACFISH and INFISH, especially in terms of removing jeopardy to, preventing adverse effects to and promoting recovery of bull trout; 3) evaluating the level of protection for bull trout provided by the implementation of PACFISH, based on implementation reviews already conducted; and 4) determining what constitutes adequate documentation for modification of standards and guidelines or riparian management objectives in PACFISH and INFISH.
The Team will strive for a BA and conference opinion that improves the efficiency of future conference and consultation, should the bull trout be listed. Due to the broad scale of this programmatic conference, incidental take will not be addressed at this level, but rather at the action or watershed level conference.
The LRMP conference at the “may affect” level will be undertaken as described above. As such, the level of analysis of the programmatic LRMP conference will consider not only whether the action is likely to jeopardize bull trout, but will also evaluate whether it may adversely affect the species.
The goal of this strategy is to complete conferences for all actions by the final effective date of any potential bull trout listing. As noted above, this includes conference not only on those actions likely to jeopardize bull trout, but also those actions that may affect the DPS as described in the proposed rule to list the species. In this approach, all Federal actions underway or proposed after June 13, 1997, and that may affect bull trout will be addressed in conference, regardless of when the National Environmental Policy Act decision document was signed. Training on how to confer using the streamlining process will be provided to relevant staff from the three agencies, including Level 1 and 2 Streamlining Teams where applicable. [1]
As an initial step, actions will be evaluated to determine if they have the potential to jeopardize the continued existence of bull trout. Examples of where to begin would be a list of actions which are inconsistent with, or pre-date existing strategies such as PACFISH, INFISH and the Northwest Forest Plan. Also, actions that individually or collectively may have the potential for widespread adverse effects to bull trout populations will be considered. Those actions determined to potentially jeopardize the continued existence of bull trout must undergo conference immediately.
For “non-jeopardy” actions, the agencies agree conferences will evaluate the effects of all actions on bull trout at the watershed scale. A list of bull trout watersheds will be provided at the training on the conference approach, and also in the LRMP conference opinion. Each watershed BA will analyze the effects of actions already underway and actions proposed to take place against the watershed baseline conditions. The baseline conditions for the watershed will include the effects of actions that take place after July 13, 1998, including actions actions with signed decisions but which may extend beyond that date, and actions proposed in the watershed, will be considered in the analysis and determination of effects portions of the watershed BA.
Conference on single actions is not encouraged in the watershed conference approach. However, the Forest or BLM District may determine there are certain high priority actions in a watershed over which they have little or no discretion on the timing of implementation. In those limited cases where such projects may occur before or close to the final listing of bull trout, the Level 1 and 2 teams can agree to separate an action from the watershed BAs for conference. The analyses of effects of that action would then need to be considered in the final watershed BA where the action occurs.
The agencies agree on the following direction for conducting bull trout conference under the streamlining guidance. Each FS National Forest (Forest) and BLM District should:
i. Initiate conferences following the streamlining guidance. The focus of discussions will be the Level 1 Team. In those areas where the streamlining process is not in place (e.g. Montana), use of the streamlining guidance is recommended as an information tool.
ii. Use the best scientific information available, including existing biological evaluations (BEs), BAs, NEPA documents the proposed rule to list bull trout, guidance regarding determination of effects to bull trout, and any new information available to guide determinations of effect for individual actions and to develop watershed BAs evaluating the effects of all actions in the watershed.
iii. Review all actions to determine consistency with the LRMP conference opinion for bull trout and other ESA listed salmonids, and with INFISH/PACFISH, and LRMP, and Northwest Forest Plan standards and guidelines.
iv. Group and analyze the effects of all actions in each bull trout subpopulation watershed. Listed of these watersheds will be provided in training on the conference approach, and in the LRMP conference opinion. Where other listed fish species under FWS or National Marine Fisheries Service jurisdiction are present in the watershed, Level 1 teams have the discretion to alter geographic boundaries so that a single watershed BA can be prepared for both agencies and all fish species, rather than a separate watershed BA for each fish species.
v. Analyze collective effects of all actions in the subpopulation watershed. Make the appropriate determinations of the effect of all actions in the watershed on bull trout (the baseline condition) as one of the following: (1) no effect; (2) may affect, and is not likely to adversely affect; (3) may affect, but is likely to adversely affect; and (4) likely to jeopardize. As noted below (Part C), these analyses should be updated when new actions are proposed in the watershed, or on a regular basis, as agreed to by the Level 1 Team.
vi. When the results of the analyses determine the actions in the watershed will have no effect on bull trout, no further conference is required, the actions can proceed as analyzed, and the determination should be documented in project files.]
vii. Except as noted for Montana, when the results of the analyses determine the actions in the watershed are not likely to adversely affect bull trout, the FWS will provide a letter of concurrence within 30 days of receiving the BA which was agreed upon by the Level 1 Team.
viii. Except as noted for Montana, formal conference for actions determined likely to jeopardize or likely to adversely affect bull trout of a DPS will be conducted under the procedures and time frames for formal consultation in CFR 402.14, as modified by the streamlining guidance. A conference opinion will be developed which follows the contents and format of a biological opinion. However, the incidental take statement in a conference opinion will not take effect until the FWS adopts the conference opinion as a biological opinion, once the species is listed (see Section III below). Conference opinions or reports will be provided to the FS or BLM on all activities which have gone through this process in bull trout subpopulation watersheds.
The agencies agree to use the streamlining guidance to conduct conference/consultation on actions proposed in a watershed after the initial watershed BA has been developed and gone through the conference process. Similar to the conference strategy, all new actions will be analyzed in watershed BAs which update the previous watershed document. In this way, Level 1 Teams should review all proposed FS and BLM actions in watershed BAs, and single action consultations will be avoided as much as possible.
For future consultation, Level 1 Teams should analyze the effects of proposed actions on bull trout based on the following: (1) the information contained in the bull trout programmatic LRMP conference opinion; (2) the information contained in the watershed BA where the project is proposed to occur; (3) PACFISH, INFISH or Northwest Forest Plan standards and guidelines; (4) LRMP direction for conserving bull trout or other salmonids (this includes the east side screens for R-6 National Forests); and (5) any other available scientific data or information relative to bull trout on a site-specific basis.
III. CONFIRMATION AS CONSULTATION
It is the intent of this agreement to conference such that it the bull trout becomes listed, the conference opinion on the LRMP and any completed informal or formal conferences on actions can be confirmed as meeting the requirements of section 7 consultation.
At the request of the FS or BLM, the FWS can adopt a conference opinion as a biological opinion issued through formal consultation. In order to do this, there must be no significant changes in the proposed action or the information used in the conference which reveal effects of the action that may affect bull trout that were not already previously considered. If such new information exists, the FS and BLM should present it to the FWS, together with an updated analysis of how the new information changes the determination of effect for bull trout. In those cases where there is not new information, the FWS can adopt a conference opinion or informal conference as a “consultation,” either a formal or an informal, as appropriate, within 30 days of receipt of the request from the action agency. Where new information is involved, the timeframe may extend to 60 days.
If you have any questions about this process please feel free to contact your agency’s Regional Technical Specialist Team member, listed in the streamlining guidance
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/s/Kathleen A. McAllister
(for) DALE BOSWORTH Regional Forester Region 1 |
/s/Jack G. Troyer (for) JACK BLACKWELL Regional Forester Region 4 |
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/s/Nancy Graybeal (for) ROBERT W. WILLIAMS Regional Forester Region 6 |
/s/M.J. Spear MICHAEL J SPEAR Regional Director FWS, Region 1 |
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/s/Ralph Morgenweck RALPH MORGENWECK Regional Director FWS, Region 6 |
/s/Martha G. Hahn MARTHA HAHN BLM State Director, Idaho |
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/s/Chuck Wassinger (for) ELAINE ZIELINSKI BLM State Director, Oregon/Washington |
/s/Larry Hamilton LARRY HAMILTON BLM State Director, Montana |
[1] Due to staff limitations,
the FWS in Montana was not able to implement the consultation direction
outlined in streamlining guidance. This
issue was explained in a letter dated April 15, 1997, from Paul Gertler,
Assistant Regional Director, Region 6, FWS to Hal Salwasser, Regional Forester,
Region 1. As a result, the Forests and
BLM Districts in Montana will confer with the FWS in accordance with 50 CFR
402.10 only for actions determined likely to jeopardize the continued existence
of the Columbia River bull trout DPS.
The FWS in Montana cannot undertake conference with the Federal action
agencies where it has been determined that actions “may affect” bull trout
until such time as the staff limitations are resolved, or the species is
listed.