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
Tom Fry
Director, Bureau of Land Management

/s/ Jamie Rappaport Clark
Jamie Rappaport Clark
Director, U.S. Fish and Wildlife Service

/s/ Mike Dombeck
Mike Dombeck
Chief, U.S. Forest Service

/s/ Alan Risenhoover
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 - 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 - 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 - 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 - 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 - 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.